A Bangladeshi couple who got here to Canada on a quick trip finally discovered themselves earlier than the Ontario Courtroom of Attraction, to resolve their hotly-contested custody dispute.
The daddy and mom had traveled to Canada with their 13-month previous daughter in Could 2024 for a three-week vacation. Quickly after they arrived – and over the objections of the daddy – the mom determined she needed to remain completely. She proposed they make a refugee declare, however the father insisted on returning to Bangladesh the place that they had established lives, jobs, and the assist of household. They disagreed so sharply that the mom referred to as the police. The daddy was criminally charged.
The mom proceeded to file for asylum for herself, towards the daddy’s needs. She additionally needed to have the kid keep along with her, at the least whereas her utility was processed. The daddy objected to this as properly, and filed an pressing movement for the kid’s return to Bangladesh. He additionally began custody proceedings in that nation.
The daddy finally succeeded in acquiring an order from the Ontario courtroom, which discovered that the mom had provided no proof that the kid would undergo severe hurt if she was returned to the daddy. In truth, the mom freely admitted that the kid had been born in Bangladesh, had all the time lived there, and had entry to relations who supplied her with assist.
The mom then introduced her personal movement earlier than the Courtroom of Attraction, asking the courtroom to stall (or in authorized phrases, “keep”) that return order till her pending request for asylum may very well be absolutely processed. She requested the courtroom to permit the kid to stay along with her in Canada till that point.
The Courtroom of Attraction rejected the mom’s request; it ordered the kid be returned to Bangladesh instantly. The courtroom started by noting the household’s go to to Canada was all the time thought of a short lived one – with customer’s visas and utilizing round-trip tickets. A return to the place the kid had a steady surroundings and assist could be in her greatest pursuits. In distinction, in Canada the mom and baby had been presently residing in a shelter with no means of economic assist by any means.
Importantly, the courtroom famous that until the mom had a powerful declare for asylum, there was no justification for holding the kid in Ontario whereas the declare was being processed. But on this case, she had not supplied even a “scintilla of proof” that her putative declare had advantage. Merely launching a refugee utility didn’t preclude a courtroom from making an order to have the kid returned to Bangladesh. In any other case, the courtroom famous, it might be too straightforward to thwart the legislation that’s meant to use to youngsters who’ve been kidnapped from their recurring house.
The courtroom added:
I’d additionally notice …that refugee claims can take months, in some instances years, to resolve. If the kid on this case was required to remain in Canada whereas that course of unfolds, she may properly wind up spending extra time on this international nation than she has in her house nation. If that had been to happen, it might then add an extra degree of complication as to the most effective pursuits of the kid if a willpower was subsequently made denying the refugee declare. The kid would then be returned to her house nation with much less connection to it than to this nation.
With that mentioned, and since this was merely a ruling on a movement, it was nonetheless potential that the mom may win her enchantment on the complete deserves. In that occasion, the daddy must return the kid to Ontario.
For the complete textual content of the choice, see:
A.A. v. Z.M., 2024 ONCA 768 (CanLII), https://canlii.ca/t/k7clc>