The OCA overturned an order requiring a refugee child to return to her allegedly abusive father
A mother who took her daughters to Canada to seek refugee status can appeal a court order requiring one of her daughters to return to their country of origin, the Ontario Court of Appeal ruled Tuesday, stating that a lower court ignored a tribunal finding that the daughter faced “a serious possibility of gender-based persecution by the father” back home.
The OCA panel found that the lower court also erred by dismissing the child when she repeatedly said she did not want to return to her country of origin because she was afraid of her father’s violence.
“The child’s objection, in these circumstances, ought to have been given effect,” the appellate panel said. “Dismissing this child’s objection constitutes a palpable and overriding error, permitting this court’s intervention.”
The OCA remitted the matter to the lower court but requested that it be assigned to a different judge. The appellate court also barred the parties from removing the child from Ontario without permission from the lower court.
The case involves a couple who are citizens of an unspecified country. The couple divorced in 2019 and has three daughters. The court identifies the youngest daughter as X.
According to the mother, her relationship with the father was physically, psychologically, and sexually abusive, and the father was physically abusive to one of their older daughters. The father denied the allegations, and the couple split parenting time.
In July 2024, the mother, her new husband, and two of her daughters, including X, went to Canada for a vacation. The following month, the mother filed refugee claims for herself and her two daughters with the Refugee Protection Division of the Immigration and Refugee Board of Canada.
The father responded with an application under the Hague Convention and Ontario’s Children’s Law Reform Act, requesting that X return to her home country. The mother then asked the Ontario Superior Court of Justice to exercise its jurisdiction over parenting time and decision-making concerning X, under the CLRA. While she admitted that removing X from her home country was wrong under the Hague Convention, she cited provisions that made exceptions in cases where the child was at risk of harm, the child objected to being returned, and returning the child would impact Canada’s fundamental principles related to protecting human rights and freedoms.
The RPD found that X had been abducted by her mother, but granted the mother and her two daughters refugee status in January. The RPD decision maker found that the claimants all faced a serious possibility of persecution by the father and that the government in their country of origin would be unable to protect them.
In May, the application judge for the court meanwhile ordered that X be returned to her father. While she acknowledged that Canada’s decision to grant X refugee status created a rebuttable presumption that X was at risk of harm, the judge called the RPD proceedings “completely one-sided” and said there were inconsistencies in the mother’s evidence about the father’s alleged abuse.
The judge said it was “highly unlikely” that violence would recur and rejected X’s objections to returning to her father, ruling that X was neither old nor mature enough to make that decision. The judge also determined that X had been influenced by her mother.
The OCA panel disagreed with the application judge’s assessment on several fronts. The panel found that the judge “did in fact categorically dismiss the RPD process and decision,” even though case law required her to ascribe a “high degree of deference” to the RPD.
The panel noted that the RPD decision maker had access to oral evidence while the application judge worked with written evidence. Still, the application judge “essentially reweighed evidence,” which does not “reflect deference or respect for the expertise and experience of the tribunal,” the panel said.
The appellate court said the application judge referred to, but did not apply the rebuttable presumption that X was at risk of harm if she returned to her country of origin. “Questioning the basis for the presumption and choosing not to apply it absent case-specific rebuttal constituted an error of law, reviewable for correctness,” the panel said. “This error alone is sufficient to allow the appeal.”
Regarding the application judge’s finding that her father influenced X’s objections to returning to her father, the appellate panel stated that the evidence did not point to that conclusion, noting that the application judge made her determination based on “what was effectively one sentence in an inadmissible 2024 custody and access report prepared by a social worker, who was not cross-examined.”
X “clearly and repeatedly objected to return based on fear of violence by her father, where the application judge accepted that he had been violent with her sibling,” the panel said. “The child’s objection, in these circumstances, ought to have been given effect.
“Dismissing this child’s objection constitutes a palpable and overriding error, permitting this court’s intervention.”
Martha McCarthy, Meghan de Snoo, and Nicole Burrows of McCarthy Hansen & Company LLP, who represented the mother, said in a joint statement on Wednesday, “This decision offers valuable insight into the refugee determination process and highlights precisely why courts should show deference to the RPD.”
“We are profoundly grateful for the impact that this decision will have on our client, her daughter, and other refugees fleeing domestic violence,” the lawyers added. “The outcome was made possible through the collective efforts of members of the family law and immigration bars who came together on a pro bono basis to address these important issues about the Hague Convention and refugee children.”
Counsel for the father and X declined to comment on the decision.
