Appeal Allowed for Insufficient Evidence on Child’s Habitual Residence


In today’s globalized economy, decision-making responsibility (formerly referred to as child custody) disputes have become more complex. Ontario is no exception. The courts have the difficult task of determining the best interests of the child and whether removing the child from this jurisdiction would cause the child serious harm. In doing so, the courts must examine the evidence and adhere to certain principles that underpin the proper functioning of the judicial system.

The Court of Appeal recently allowed the appeal of a decision-making responsibility case, where the Court determined that a mother was denied procedural fairness when a motion judge ordered her child to return to a different jurisdiction. This case sheds light on the proper considerations the judge must make when trying a case which involves international child custody disputes. 

Applicable Legal Principles for Child Custody Disputes

When considering allegations of international child abduction, the Hague Convention on the Civil Aspects of International Child Abduction generally applies. The Convention establishes procedures for the prompt return of abducted children to their habitual residence and ensures cooperation among signatory countries to resolve such disputes. However, when a country has not ascended to the Convention, or such accession has yet to be recognized by the country in which a child resides, then the applicable country’s custody laws apply. 

In Ontario’s case, the Children’s Law Reform Act would apply. The Act is an Ontario statute governing various aspects of family law concerning children. Specifically, it allows the courts to exercise jurisdiction over matters as long as the child is “habitually resident” in Ontario, or if they are not, then where there is evidence that the child would suffer “serious harm” if returned to another jurisdiction.  

Furthermore, when applying the provisions of the CLRA, the courts must apply various principles of natural justice, one of which is the principle of procedural fairness. This principle mandates that all parties involved in legal proceedings, whether in court or administrative tribunals, must be afforded a fair and impartial process. This includes the right to a timely hearing, adequate notice of the issues, and the opportunity to present evidence and make submissions. This ensures that rulings are based solely on the merits of the case and relevant legal principles.

In Zafar v. Azeem, the Court of Appeal found that the motion judge’s custody decision denied a mother procedural fairness, as the evidentiary record was conflicting. 

Motion Judge Orders Child Return to Pakistan

The parties were born and married in Pakistan. As a permanent resident, the father resided in Canada and sponsored his wife to join him. Not long after their marriage, the child was born in Canada.

In 2021, the mother took the child to Pakistan to visit her parents. She testified that her stay was meant to be temporary. During her time in Pakistan, the marriage began to fall apart. In 2022, the father travelled to Pakistan and subsequently filed for divorce in that jurisdiction. There were several court proceedings, and the mother, fearing losing custody of the child, returned to Canada in 2023.  

There were conflicting accounts related to the purpose of the mother’s trip to Pakistan, as well as the allegations of physical and emotional violence from the father.  

When she returned, the mother brought an application to have a child declared habitually resident in Ontario per the provisions of the CLRA. In response, the father brought a motion to dismiss the application and asked the Superior Court to decline jurisdiction because the child was habitually resident in Pakistan. The father succeeded, and the motion judge ordered the child to return to Pakistan. 

The motion judge made this decision based on affidavit evidence alone.

The mother appealed the decision on several grounds, one of which was her denial of procedural fairness based on the lack of an opportunity to expand the evidentiary record and test the evidence by cross-examination or hearing viva voce testimony.

Appeal Allowed: Judge Erred By Deciding Habitual Residence and Lack of Serious Harm 

The Court of Appeal agreed with the mother’s assertions, specifically as the evidence related to the motion judge’s analysis of habitual residence and serious harm.

There was significant conflicting evidence in the affidavits that formed the record. The mother and father disagreed on the purpose of the mother’s trip to Pakistan and whether it was meant to be temporary. The Court of Appeal noted that based on these discrepancies, “if the father’s account is believed, A’s habitual residence is Pakistan. If the mother’s account is believed, it is in Ontario.” The Court found that the affidavit evidence alone was insufficient to determine whether the Superior Court had jurisdiction and was in no position to assess credibility evidence and accurately choose one account over the other.   

Based on the mother’s allegations of harm from the father, the Court also found sufficient basis for a “more robust evidentiary hearing before the court.” Another hearing would allow a proper determination of whether the child would suffer serious harm if returned to Pakistan. 

Therefore, the Court set aside the order and remitted the matter to the Superior Court of Justice for an evidentiary hearing. This case highlights the standards the courts must meet when assessing evidence and making determinations per the CLRA. If you believe you were denied procedural fairness in a hearing, it is imperative you talk to a lawyer. 

Windsor Family Lawyers Assisting Parents With Questions Regarding Decision-Making Responsibility and Parenting Time Arrangements

One of the most common causes of disputes between parents is the distance between the relocated parent and the child. Whether your parenting time and decision-making responsibilities become an issue during or after a divorce, our experienced family lawyers can assist you. Contact Johnson Miller Family Lawyers in Windsor today at 519.973.1500 if you have questions only a family law lawyer can answer.

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