We wrote a few weeks back about a mother who was looking to prevent her children from being returned to Kuwait after she alleged they faced harm from their father if returned. In the original hearing, the trial judge ordered the mother to escort the children back to Kuwait on the grounds that there was no evidence to suggest such a risk of harm was present. The mother appealed that decision, and we would like to report on it here.
A brief background
The parents were married in Kuwait in 2008 and had three children before their separation in 2018 amidst allegations of physical violence by the father. The parents went to court in Kuwait and had a parenting schedule in place when the mother left the country with the children and sought refugee status in Canada.
As we mentioned earlier, the mother’s request to keep the children in Canada was not successful, in part because the court found that Kuwait’s judicial system protected women and children and that there was no evidence that harm would come to them if they were returned. The court was critical of what it described as inconsistent and contradictory evidence from the mother.
Positions on appeal
The mother submitted to the Court of Appeal that the application judge erred in her credibility analysis of the mother. The mother submitted that the application judge “gave no weight to the children’s evidence and failed to properly analyze the best interests of the children.” She further submitted that the application judge’s decision undermined her and the children’s rights to have their refugee claim determined. She sought either an adjournment of the entire application pending the outcome of her refugee status or that the Ontario courts accept that they have jurisdiction in the matter. The Office of the Children’s Lawyer agreed with the mother that the matter should be adjourned until her refugee status is settled.
The father submitted that the application judge made no errors and that the order for the children to be returned to Kuwait be upheld.
The court’s analysis
The court disagreed with the application judge’s finding that no serious harm would fall upon the children if they were returned. The court found that the application judge discounted the children’s evidence “on the basis that it was a product of the mother’s inappropriate influence.” The court found that the evidence given by the children about the physical harm they experienced at the hands of their father demonstrated a risk of serious harm. This includes the oldest child saying the father hit him with a belt and had threatened him with a hot iron.
The court determined that Ontario should exercise jurisdiction as it relates to custody and access of the children, and agreed that no such matter should be ruled on until the mother’s refugee claim has been settled. The father was ordered to pay the mother costs equal to $25,000.
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