To protect children’s best interests, family and refugee law cannot operate in silos, says lawyer
In a case in which a mother brought her three children from Kuwait to Canada to escape her husband’s alleged abuse, the Court of Appeal has found that when a family court is presented with a return order on children who are also claiming asylum, they must wait for a decision from the Immigration and Refugee Board before granting the return order.
“The decision brings awareness to both lawyers and the courts about the intersection of family and refugee law, which is especially critical when children's rights are at stake,” says Maureen Silcoff, co-chair of the Canadian Association of Refugee Lawyers, an intervenor in the case.
“These two areas of law, when they both affect children at the same time, can't operate in silos, because that would be detrimental to the best interests of the child. They have to operate in tandem.”
In M.A.A. v. D.E.M.E., the father applied for an order to have the children returned to Kuwait, under s. 40 of the Children’s Law Reform Act. The mother cross-applied, under s. 23 of the CLRA, to have the court assume jurisdiction for her custody claim. The statute allows an Ontario court to exercise jurisdiction if the children are present in Ontario and their removal would likely result in serious harm. Superior Court Justice Lucy McSweeney ordered the children be returned to Kuwait.
Court of Appeal Justices Mary Lou Benotto, Michal Fairburn and Mahmud Jamal found the children would, on a balance of probabilities, experience serious harm if returned and that it was an error to do so while their asylum claim was pending. The Court found Ontario could – and should – exercise jurisdiction and sent the matter of the children’s custody and access back to the Superior Court.
The case stemmed from an incident which took place in March 2018, in which the mother said the father attacked her in front of the children, an event that was part of a pattern of personal and sexual violence. The father denies the allegations and though the police were involved, no charges were laid at the time. The couple then legally separated. Two months later, without informing or seeking the consent of the father, the mother left Kuwait and claimed refugee status in Canada.
That October, the father made the return order under the CLRA. He denied all abuse allegations and countered with evidence from seven witnesses – including the children’s nanny – who said he was “loving,” “not a violent person” and that they never witnessed abuse. The father said the mother had gone to Canada to be close to family and that her allegations were a “ruse.”
McSweeney appointed the Office of the Children’s Lawyer who executed a Voice of the Child Report on the oldest child. The child said his father was “mean, angry and threatening.” An investigator with the OCL questioned two of the children about the March 2018 incident and heard that they had witnessed their father grab, squeeze and choke their mother.
But McSweeney was not persuaded by the children’s testimony, nor the mother’s, who she said was “inconsistent” and “contradictory.” McSweeney found she exaggerated her evidence, was “evasive and argumentative” with counsel, omitted “important details” that did not fit her storyline and did not mention the father’s sexual abuse or violence against the children before her court testimony. McSweeney also found the testimony of the children was influenced by their mother and that the expert evidence did not show the Kuwaiti courts would treat her unfairly, as the mother claimed.
McSweeney said that while she was not required by law to allow the refugee claims to conclude before proceeding with the matter before her, she had nevertheless adjourned twice for that purpose. It was because the refugee claim was not proceeding at a reasonable pace, she said, that she went ahead and ordered the children returned to Kuwait.
Between the lower court’s decision and the appeal, the mother was convicted in Kuwait of kidnapping the children. The father then obtained two Kuwaiti court orders; one granting him custody and the other, an “obedience order,” obligating the mother to “enter into submission” to him.
The principle of non-refoulement is expressed in s. 115(1) of the Immigration and Refugee Protection Act and protects a refugee from being removed from Canada to a country where they will face persecution due to race, religion, nationality, social group membership, political opinion or risk torture or cruel and unreasonable treatment. The United Nations High Commissioner for Refugees, the Canadian Association of Refugee Lawyers and Amnesty International Canada – which intervened in the case – argued the principle applies not only to refugees but those for whom refugee status has yet to be determined.
On appeal, the mother argued McSweeney erred in her credibility analysis by employing “unfounded myths about typical behaviour of a victim of sexual violence,” which then tainted her perception of the children’s evidence. She also argued McSweeney erred by choosing not to wait for the refugee claim. The mother requested the court either adjourn the removal application until the refugee status is determined or find Ontario has jurisdiction.
Also an intervenor in the case was the Barbra Schlifer Clinic, for which Archana Medhekar argued for the impact of gender-based violence on female refugee claimants and their children. Medhekar told Law Times that family courts must take an “intersectional, nuanced and trauma-informed approach,” considering the cultural context from which the claimants come. She also argued the courts must consider the power imbalance between father and mother and its impact on disclosing abuse.
The Court of Appeal found the application judge erred in rejecting the “uncontradicted” testimony of three experts from the OCL, who had found the children’s assessment of the situation was arrived at independently. The Court found the children were at risk of physical and psychological harm, that the children’s views were clear and that “the mother cannot realistically return to Kuwait.”
The Court also found it was an error to order the children’s return while their refugee claim was pending. The Superior Court will hear a custody and access hearing and the Court ordered the father to pay $25,000 in costs to the mother.