COURT OF APPEAL FOR ONTARIO

CITATION:  A.A. v. Z.M., 2024 ONCA 923

DATE: 20241217

DOCKET: M55493 (COA-24-CV-1001)

Hourigan, Copeland and Madsen JJ.A.

BETWEEN

A.A.

 

Applicant/Respondent

and

Z.M.

Respondent/Appellant

 

Maneesha Mehra, Archana Medhekar and Yasmine Abuzgaya, for the appellant

Michael J. Stangarone, Tiffany Guo and Syed Kabir, for the respondent

Sheena Scott and Caterina E. Tempesta, for the Office of the Children’s Lawyer

Heard: December 4, 2024

 

Madsen J.A.:

[1]          This is a motion to review the order of a single judge of this court under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2]          The moving party/appellant, Z.M. (the mother), moved to stay the order of Sharma J. made August 22, 2024, in the Superior Court of Justice. That order was, inter alia, for the return of the parties’ infant child to Bangladesh (“the return order”). On October 18, 2024, a single judge of this court dismissed Z.M.’s request to stay the return order pending the disposition of the appeal to this court (“the stay dismissal”). Z.M’s request to initialize the title of proceedings was granted and the request of the respondent, A.A. (“the father”), for security for costs of the appeal was dismissed. The mother now seeks a panel review of the dismissal of her request for a stay.

[3]          On the hearing of this matter on December 4, 2024, the stay dismissal was set aside, and a stay of the return order granted, with reasons to follow. The appeal has been scheduled to be heard on an expedited basis, on January 9, 2025.

 I.            Background

[4]          The uncontroverted background facts include the following. The parties are from Bangladesh. On May 2, 2024, they travelled to Canada with their infant daughter, who was born in Bangladesh, for a three-week vacation. Their return flight was scheduled for May 25, 2024. The vacation was extended, and the parties disagreed about whether a refugee claim should be made. On June 5, 2024, the parties argued. The mother called the police. The father was charged with two counts of assault, forcible confinement, assault with choking, and uttering threats to cause death or bodily harm, in relation to events that the mother alleged occurred between May 24 – May 26, and on and June 5, 2024. The father was released on terms of bail, which do not restrict his residency or travel outside Ontario. The father returned to Bangladesh temporarily for work. The mother has filed a refugee claim for herself and the parties’ child, seeking to remain in Canada. She and the child are residing in a shelter in Toronto.

[5]          On June 24, 2024, the father brought an urgent motion seeking orders in relation to the parties’ child, including that the mother not be permitted to remove the child from Toronto without his consent, other than to return her to Bangladesh. The father also sought joint decision-making responsibility for the child; that the mother not be permitted to include the child on her refugee claim to stay in Canada; and that immediate in-person parenting time be facilitated for between himself and the child.

[6]          The motion was adjourned, peremptory on the mother, to allow her time to retain counsel. Although the father sought in-person parenting time, virtual parenting time was ordered. The matter returned to court on July 4, 2024. The motion was again adjourned, peremptory on the mother, as she had not retained counsel. The virtual parenting time for the father was ordered continued, in addition to limited in-person parenting time supervised by an agency. On July 3, 2024, the father commenced a custody proceeding in Bangladesh.

[7]          The matter came before Sharma J. on August 22, 2024. The court had before it the father’s affidavit, sworn July 25, 2024, attesting to facts including the following:

a.    the father is a senior manager at a telecommunications company in Bangladesh;

b.    the mother is a stay-at-home parent;

c.    the mother has serious mental health diagnoses and has a history of “violent aggressive behaviour, psychosis, schizophrenia, and hallucinations”;

d.    the mother expressed an intention to claim refugee status during their vacation in Canada;

e.    on June 5, 2024, the parties had an argument about the mother’s wish to claim refugee status, following which she made false allegations to the police that resulted in the criminal charges, which are strenuously denied;

f.     the mother had previously threatened to make false allegations against him;

g.    the father temporarily returned to Bangladesh to resume his employment, which is permitted under his terms of bail;

h.    the father is capable and equipped to be the primary caregiver for the child, and can work from home to take care of her;

i.     the father undertakes, if the mother’s appeal is successful, to bring the child back to Canada;

j.     the parties have an extensive support system in Bangladesh;

k.    the father misses the child deeply;

l.      and the child has family and supports in Bangladesh.

[8]          The mother advised the court that she had not been able to find a lawyer. She requested an adjournment, which was denied, the matter having twice been marked peremptory. The mother stated that she had tried to submit her documents online for the motion but had been unable to do so. The court did not ask for those materials to be handed up for review. The mother was sworn in and gave brief testimony. Her request for time to prepare her oral testimony was denied. She was not offered an opportunity to cross-examine the father. 

[9]          In her brief testimony, the mother attested to facts including the following:

a.    the father was in control of all arrangements for the trip to Canada and it was he who initially postponed the return to Bangladesh;

b.    it was initially the father who wanted to file for political asylum and seek refugee status in Canada;

c.    the father is verbally, mentally, sexually, and physically abusive to her; 

d.    the father used to hit her, including during her pregnancy;

e.    the mother has wanted to leave the relationship, but the father would threaten her, her relatives, her friends, and whoever was willing to support her;

f.     the mother feels she cannot now go back to Bangladesh because if she goes back, the father will be able to use his money and power to take her child away from her, that she will be banished, and that “no one will find me ever;”

g.    the mother filed a refugee claim in Canada for herself and the parties’ child, because if she returns to Bangladesh, the father would take away the child, stating: “I don’t know about my life’s safety”;

h.    the mother felt that if she had “more time,” she could provide details regarding the physical and verbal violence against her;

i.     the father had not been intentionally abusive towards the child;

j.     the mother had to do “whatever [the father] asked for,” thinking of the child’s safety; and,

k.    the mother’s supports in Bangladesh are limited because the father puts people in uncomfortable and threatening situations if they help her, including threats that he will get them arrested.

[10]       The mother also described her experience of unwanted sexual activity in the presence of the child, during which she worried that the child could get hurt and, she claimed the father told her that it would be she who was responsible for any hurt to the child.

[11]       When asked in cross-examination about the refugee claim for herself and the child, the mother declined to provide information. She also did not provide the address of the shelter at which she was staying, expressing fear that the father “has people here” who could abduct the child.

[12]       The court concluded that the child is wrongfully retained in Ontario, and that there was no basis under ss. 22(1)(a) or (b) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) to exercise jurisdiction to make a parenting order. The court found that the child’s habitual residence was Bangladesh, not Ontario, and there was no substantial connection to Ontario. The court accepted that the mother might “have legitimate safety concerns for herself” but held that she should raise these issues with the Bangladeshi court. The court found “no evidence that the child would suffer serious harm if returned to the father’s care in Bangladesh,” and “no evidence that the father is harming the child.” The mother’s fears were therefore insufficient for the court to exercise jurisdiction to make a parenting order under the s. 23 “serious harm” exception to s. 22. Citing F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, at para. 59, the court concluded that the child should be returned to Bangladesh under s. 40 of the CLRA. 

II.            The Stay Decision

[13]       Before the stay motion judge, the mother argued that she met all three branches of the test for a stay. She asserted that the judge below erred in failing to consider and apply this court’s decision in A.(M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81, and that this constitutes a serious issue on appeal. Second, she argued, citing Maharaj v. Maharaj, 146 O.A.C. 317, at paras. 13-15, that the failure to grant a stay of an order returning a child would render the appeal moot, which has been held by this court to constitute irreparable harm. Third, the mother argued that the balance of convenience clearly favoured her, since she and the child stood to permanently lose the ability to claim refugee status in Canada, while the prejudice to the father was minimal as he could travel to see the child pending disposition of the appeal.

[14]       The stay motion judge was prepared to accept that the scope of this court’s decision in A.(M.A.) could constitute a serious issue. However, in his view, “the decision in A.(M.A.), properly and fairly read, does not stand for the blanket proposition that, in every case where a refugee claim is made, the court is without jurisdiction to exercise its authority under the CLRA.” This would make it too easy to “thwart the imposition of necessary remedies that are intended to be applied when a child is abducted from their habitual home.”

[15]       The stay motion judge held that there must be some evidence of merit to the refugee claim, “perhaps a scintilla of evidence,” to support it, before the court will decline to order the return of a wrongfully removed or retained child. He concluded that there was no evidence, either before the judge at first instance, or before the court on the stay motion, to support the refugee claim. Irreparable harm, he concluded, “cannot arise from the loss of a proceeding which has no apparent merit.”

[16]       Turning to the balance of convenience, the stay motion judge found that this favoured the return of the child to Bangladesh, where she has a home, support, and financial security.

III.            Analysis

[17]       The test for a stay pending appeal is well-established. First, the moving party must show that on a preliminary assessment of the merits of the case, there is a serious question to be tried; second, the moving party must show that she will suffer irreparable harm if the stay is not granted; and third, she must show that the balance of convenience favours granting the stay: r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. The criteria are not watertight compartments, and the strength of one may compensate for the weakness of another: Circuit World Corp v. Lesperance, 33 O.R. (3d) 674, at para. 8. In cases involving children, “the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay”: N. v. F., 2021 ONCA 688, 158 O.R. (3d) 565, at para. 36, citing D.C. v T.B., 2021 ONCA 562, at para. 9; K.K. v. M.M., 2021 ONCA 407, at para. 17.

[18]       Every decision on a stay motion involves a discretionary balancing of factors and is entitled to significant deference. On a review, a panel may only interfere where the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.

[19]       In my view, the stay motion judge erred in principle in refusing to grant the stay. The existence of serious questions on appeal, the possibility of significant irreparable harm to the mother and/or child from not granting the stay, and the balance of convenience all augured in favour of granting the stay. Applying the “justice of the case” test as articulated in Oliveira v. Oliveira, 2022 ONCA 218, and considering all the relevant factors, I would set aside the order of the stay motion judge and grant the stay pending the disposition of the appeal.

(1)         Serious Issues on Appeal

[20]       The stay motion judge erred in principle in giving insufficient weight to the merits of the appeal at the serious issue stage.

[21]       First, while the stay motion judge was prepared to accept that the debate over the scope of the decision in A.(M.A.) could constitute a serious issue “[b]ecause the test for a serious issue is very low”, in my view, this issue is highly significant and on its own warrants granting the stay pending appeal. Second, I have significant concerns about the procedural fairness afforded to the mother at first instance. This raises a serious issue and was not considered by the stay motion judge. I address each of these issues in turn.

[22]       A. (M.A.) gives clear direction about the relationship between ss. 23 and 40 of the CLRA in the context of a pending refugee application. Specifically, A. (M.A.) holds that even if the serious harm test under s. 23 is not met, where there is a pending refugee claim, a child should, nevertheless, not be returned under s. 40: at para. 78. A. (M.A.) affirms the principle of non-refoulement as the “cornerstone of international refugee protection,” noting that if a child is returned to a place from which asylum is sought, the child’s rights to asylum are lost. A person is not permitted to continue their refugee claim from their home country, nor is the person permitted to make a second claim if they return to Canada: A.(M.A.), at paras. 61-64. The decision in A. (M.A.) does not qualify the statement that, “[a] return order must not be made under s. 40(3) in the face of a pending refugee claim”: at para. 72.

[23]       At the same time, in F. v. N., a child abduction case in which there was no allegation of domestic violence and no pending refugee claim, the majority of the Supreme Court of Canada emphasized at para. 64 that “[t]he premise that the children’s best interests are favoured by their timely return to their home jurisdiction is sound. Child abductions harm children.”

[24]       The scope of certain statements in A.(M.A.) and whether they require qualification, particularly in light of the majority’s decision in F. v. N. is, in my view, a serious issue on appeal. This is particularly so because, respectfully, there is more than a “scintilla” of evidence supporting the mother and child’s refugee claims. This is discussed further, below in relation to the irreparable harm branch of the stay analysis. It will be for the panel that hears the appeal to decide the merits of this issue, but given the unqualified statements in A. (M.A.) that the return of a child order must not be made in the face of a pending refugee claim, the stay motion judge gave inadequate weight to the strength of this ground of appeal.

[25]       Further, while not fully argued before the stay motion judge, a serious issue arises from the appearance of insufficient procedural fairness below. I acknowledge that there were two initial adjournments of the father’s motion, made peremptory to the mother. That said, before Sharma J., the mother again stated she had been unable to find a lawyer: “I’m not being able to find any lawyer under this government certificate coverage.” She was not able to upload her materials to the online platform: “I tried to do it online but couldn’t, like, submit it because it’s not working.” She was not asked to hand up her materials to the judge. It is evident from the transcript that English is not her first language. She requested, and was denied, time to prepare for her oral testimony. Although she was cross-examined, she was not given an opportunity to cross-examine the father. There is no indication that she was ever referred to duty counsel, the Law Society Referral Service, the Family Law Information Centre, the Refugee Law Office of Legal Aid Ontario, or any other accessible legal resource.

[26]       Taking these two issues together, in my view, the stay motion judge erred in principle in giving insufficient weight to the merits of the appeal.

(2)         Irreparable Harm

[27]       In my view, the stay motion judge erred in principle in his consideration of irreparable harm to the mother and the child that would arise from the dismissal of the stay motion.

[28]       First, the stay motion judge held that irreparable harm cannot, “arise from a proceeding that has no apparent merit”. Respectfully, it cannot fairly be concluded, at this stage, that the refugee claim for the mother and the child have no apparent merit. As set out above, the mother gave oral evidence that she experienced ongoing domestic violence at the hands of the father, during which the child was at times present. Indeed, the judge below acknowledged that the mother “may have legitimate safety concerns for herself.” There are outstanding serious criminal charges against the father which ought not be ignored. If the mother and/or the child cannot be protected from domestic violence in Bangladesh, this could form the basis for a refugee claim. It is also by now uncontroversial that “family violence” includes children’s direct and indirect exposure to violence between family members, and that violence against a parent puts children at risk of emotional harm and behavioural problems throughout their lives: Barendregt v Grebliunias, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 143.

[29]       Second, in assessing irreparable harm, the stay motion judge assumed that Bangladesh would apply the best interests test and noted that the father gave his undertaking to return the child if the mother’s appeal was successful. He also suggested that there was no requirement that the mother return to Bangladesh, and that if she stayed in Ontario, she could seek custody of the child through the courts in Bangladesh. While the stay motion judge acknowledged that the father’s undertaking to return the child in the event of a successful appeal was not a “guarantee,” he did not account for the irreparable harm inherent in the permanent loss of the child’s refugee claim and potential immigration consequences, including questions regarding future admissibility to Canada, should she be returned to Bangladesh pending appeal and later seek entry to Canada. His analysis of irreparable harm focussed solely on the mother, and did not consider irreparable harm to the child as is required: K.K. v. M.M., 2021 ONCA 407, at para. 17. Where the order sought to be stayed involves the parenting of a child, the overriding consideration must be the best interests of the child: Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), at para. 6.

[30]       Finally, in suggesting that the mother could simply stay in Ontario and pursue custody of the child, the stay motion judge did not advert to the fact that the child is still an infant who is still nursing[1]. F. v. N. is clear that while primary care is not determinative, separating a child from their primary caregiver “should never be considered lightly”: para. 77. Here, such separation was not considered at all.

(3)         Balance of Convenience

[31]       The irreparable harm assessment overlaps to some extent with the balancing required under the third branch of the stay test. That balancing ought to have considered the child’s refugee claim, the potential separation from her mother, as well as the acknowledged premise that children’s best interests are favoured by their timely return to their home jurisdiction.

[32]       In his reasons, the stay motion judge expressed concern about the potential impact on the child of anticipated delays in the refugee determination process, stating “refugee claims can take months, in some cases years, to resolve.” He surmised that by the time the process concluded, the child could “well wind up spending more time in this foreign country than she has in her home country”, leading to a lessened connection with her native country of Bangladesh if the refugee claim was denied. In my view, it was an error in principle to consider the length of time for refugee claims to resolve in the context of considering a stay pending appeal. The only relevant delay was the delay pending disposition of the appeal, a much shorter time period.

[33]       The appeal has been expedited and is scheduled to be argued in one month. If the appeal is unsuccessful, there will still be a timely return of the child to Bangladesh. Weighed against this relatively brief delay, the serious concerns outlined above favour the granting of the stay pending disposition of the appeal.

IV.          Conclusion

[34]       For the reasons set out above, the review motion is granted. The order dismissing the stay request is set aside and a stay is granted pending the outcome of the appeal.

[35]        Costs are reserved to the hearing of the appeal.

 

“L. Madsen J.A.”

“I agree. J. Copeland J.A.”

 

Hourigan J.A. (Dissenting):

Part I: Introduction

[36]       Section 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits a panel of this court to hear a review of a single judge's order. Overturning a single judge’s order is supposed to be an extraordinary remedy, especially in cases where the order is discretionary: Yaiguaje v. Chevron Corp., 2017 ONCA 827, at para. 20.

[37]       The majority dutifully cites authority to the effect that “a stay motion involves a discretionary balancing of factors and is entitled to significant deference.” Tellingly, they ignore the law that holds that a panel review is not a de novo hearing: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9. This is especially the case “when discretionary orders, such as the one in dispute here, are heavily predicated on fact-finding”: Wiseau Studio, LLC v. Harper, 2021 ONCA 504, at para. 7.

[38]       It is insufficient for a court to cite a legal principle; it must apply that principle, otherwise the decision lacks intellectual integrity. The majority’s reasons are built on a fatal inconsistency. They profess to be bound by a deferential standard and then proceed to conduct a de novo consideration of the merits, premised on what they would have done if they heard the stay motion. There is not a modicum of deference in that analysis.

[39]       If panels reviewing a single judge’s order are permitted to reweigh discretionary factors, no order of a single judge will be safe because discretionary factors can always be reweighed differently. Inherent in any discretionary analysis is that different judges may weigh the factors distinctly. That is why panels are required to show deference and not declare that they will do so and then undertake a de novo analysis.

Part II: Analysis

(a)         Test for a stay when a refugee claim has been asserted.

[40]       The test for a stay has been in place for 30 years. It requires a balancing of an assessment of the merits of the case, a consideration of whether the moving party has established irreparable harm, and a weighing of the balance of convenience: see RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. A stay is a highly discretionary remedy; it finds its roots in equity: Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 126.

[41]       The appellant’s argument, which appears to have been accepted by the majority, is that where a refugee claim for a child is part of the factual matrix, an order for the child's return must be stayed pending appeal. It would follow that whenever a refugee claim has been filed, the court need not look at the strength of the case, whether irreparable harm has been proven, nor engage in any balancing because its discretionary equitable jurisdiction has been ousted.

[42]       This is not a correct interpretation of Canada’s international obligations nor is it a correct interpretation of this court’s decision in A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, leave to appeal refused, [2020] S.C.C.A. No. 402. Equity jealously guards the discretion it affords judges to do what is just in a particular case. The assertion of a refugee claim does not abrogate a court’s discretion.

(b)         Did the motion judge err in determining whether the appellant met her onus?

(i)           Serious Issue

[43]       The motion judge considered whether the appellant had established that there was a serious issue to be tried regarding A. (M.A.). He concluded that “the debate over the scope of the decision in A. (M.A.) can constitute a serious issue.” Having found that this low threshold was met, he moved on to the remaining elements of the stay test. The majority says this was an error because he failed to give sufficient weight to this argument. To be clear, the majority does not take issue with the motion judge’s finding that this constituted a serious issue. Their concern is about the weight the motion judge gave to the issue. Apparently, they believe the motion judge was obliged to assign some "super weight" to this argument. In support of their position, the majority declares: “In my view, this issue is highly significant and on its own warrants granting the stay pending appeal”. With that statement, they answer the irrelevant and unasked question of what they would have done if they had been the motion judge.

[44]       The majority’s analysis is contrary to established precedent and constitutes a misuse of the attenuated powers available to a panel reviewing a single judge's decision. It is impermissible for panels considering orders of a single judge to reweigh discretionary factors. In this regard, the standard of review of a single judge's decision must be at least as robust as an appellate court’s considerations of a lower court’s discretionary decisions. As noted in N. v. F., 2021 ONCA 614, at para. 38, aff’d 2022 SCC 51, absent a legal error or a palpable and overriding error of fact or mixed fact and law, appellate courts should not redo a lower court's analysis to achieve a result that it deems to be in the best interests of the child. The rationale for this approach was explained in N. v. F., at para. 39:

Proper adherence to the standard of review helps enforce a discipline in appellate courts that guards against the potential of rendering results-based decisions, which do not adhere to the law and create uncertainty for other similarly situated parties. This danger is particularly pronounced in family cases where there may be sympathetic facts, and the appellate court may have a different view on what it believes is the fairest result.

[45]       Another example of this approach is the majority’s assertion that the motion judge gave insufficient weight to a procedural fairness issue on the motion before Sharma J. They reach this conclusion even though they admit the issue was "not fully argued before the stay motion judge." So, according to the majority, they are applying a deferential standard of review, yet they are critical of the motion judge for not giving sufficient weight to an issue that was not fully argued before him. This is a clear recasting of the issues to reflect their own interpretation of the case.

[46]       The majority's analysis of the serious issue criterion is an exercise in micromanaging not deference. They agree that the motion judge's finding that there was a serious issue was correct, but they find that more emphasis should have been placed on the alleged strength of the case. They cite no authority for the proposition that the motion judge was obliged to grant additional weight to this component of the stay test. Nor do they cite a case where a review panel has overturned a single motion judge on this basis. As far as I can tell, this is an unprecedented approach to panel reviews in this court.

(ii)         Irreparable Harm

[47]       On the issue of irreparable harm, the appellant submits that the irreparable harm is the loss of the child’s refugee claim, which she unilaterally made on the child’s behalf. This claim was made after the parties made two appearances on the respondent's motion for an order to return the child to Bangladesh and after the appellant had been ordered by two judges to file materials in support of her position. When the stay motion judge attempted to understand the nature of the claim and gauge whether it had any merit, he was told he was prohibited from knowing anything about the claim. According to counsel for the appellant, all that mattered was that this late-in-coming refugee claim had been asserted. That was sufficient to prevent a return of the child to her habitual residence. It mattered not even if the claim was made in bad faith or was frivolous.

[48]       The motion judge noted that “the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides status to a person as a convention refugee or person in need of protection where, among other reasons, there is a "well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion" or where a person needs protection because of a danger, "believed on substantial grounds to exist," of torture, risk to life, or risk of cruel and unusual punishment.” He then correctly observed that there was no evidence before Sharma J. or him that would provide a foundation to suggest that the appellant had a potentially meritorious refugee claim.

[49]       The motion judge stated that the refugee claim “has no apparent merit." Contrary to the position asserted by the majority, the motion judge did not assess the merits of the refugee claim. How could he? Counsel for the appellant made a tactical choice not to adduce any evidence regarding the grounds they were asserting to establish irreparable harm. What the motion judge actually found was that, given the lack of evidence, the appellant did not discharge her onus of proving irreparable harm. He made no error in that regard.

(iii)        Balance of Convenience

[50]       On the issue of balance of convenience, the motion judge noted that “the child was born in Bangladesh and has only known that country. She has a home, support, and financial security there. The balance of convenience favours her return.” That finding was open to him on the record. Indeed, the majority do not point to any error in this assessment.

[51]       The primary criticism of the motion judge’s balance of convenience analysis is his comment that the refugee claim could take months or years to complete. I note that this comment was not made in the context of his balance of convenience analysis. In any event, this criticism is unfounded and extraordinary. What the motion judge did – and what he was supposed to do – was take a step back and consider holistically the merits of the litigation to determine what the justice of the case required: see Yaiguaje, at para. 25.

[52]       This holistic approach, where judges are required to look at all the surrounding facts of a case, is consistent with what courts have always done in exercising their equitable jurisdiction. The motion judge was cognizant of that obligation to assess the overall litigation context. In particular, the motion judge, looking at the case holistically, was able to determine that the refugee claim was just one of several examples of unilateral conduct by the appellant:

•        She unilaterally determined that she would remain with the child in Canada.

•        She unilaterally determined that she would not seek an order from the Ontario courts about the custody issue.

•        She unilaterally decided not to comply with orders made by two Superior Court judges that she file responding materials.

•        After two peremptory orders had been made against her, on August 20, 2024 – two days before the motion before Sharma J. – she unilaterally chose to assert a refugee claim on behalf of the parties’ child.

•        She unilaterally decided that Sharma J. and this court should be prohibited from receiving even the most rudimentary information about the nature of her newly asserted refugee claim.

[53]       If the child remains in Canada while the refugee claim is processed, there is little doubt that the appellant will rely on this fact in support of her position that she should have custody. Undoubtedly, in the future, the appellant will advance an argument that the child’s routine in Canada should not be disturbed. It would have been patently obvious to anyone reviewing the appellant's conduct in this case that the refugee claim was one of a series of unilateral tactics. Further, her reliance on the refugee claim in these proceedings raises serious concerns about whether Canada’s refugee system can be abused to facilitate the actions of child abductors.

[54]       The motion judge, a highly experienced judge of this court, was right in considering the litigation reality when determining the justice of the case. He should be credited for his perspicacity in recognizing the appellant's tactical decisions, not criticized for it. His consideration of the overall litigation context demonstrates that he took seriously his responsibilities on the stay motion by placing the request for a stay within the framework of what had occurred in this proceeding and what would likely occur in the future.

[55]       The motion judge is also criticized for not focussing on the child's best interests. It is beyond dispute that the court must take a child-centred approach on a motion for a stay of a return order. It is clear to me that the motion judge did just that. He explicitly referenced the best interests of the child consideration and found that it favoured the child’s return to her country of residence. I note that in this regard there is a dispute between the parties regarding who is the primary caregiver.

[56]       The motion judge’s analysis was consistent with the guidance from the Supreme Court in F. v. N., 2022 SCC 51, at para. 82:

In general, a parent ought not to be able to create serious harm and then rely on it through their own refusal to return. Accordingly, courts should carefully scrutinize refusals to return when there is no impediment to the parent re-entering and remaining in the country of the child’s habitual residence. In discussing harm caused by separation from a primary caregiver who is the abductor under the Hague Convention, scholar Rhona Schuz observes:

An obvious strategy for a primary carer abductor is to state that she is not prepared to return with the child and that the consequent separation from her will cause the child psychological harm. Such claims are almost invariably rejected by most courts. . . .

This is not a matter of blaming the taking parent for their refusal to return, which, as I note below, may be justified. Courts and commentators who reject allegations of harm in these circumstances are recognizing that the refusal to return, where not justified, is not in the best interests of the child. As a general rule, these best interests are served by contact with both parents, and a stable and familiar home environment. The presumption remains that abduction from their habitual residence can be the source of distress that is contrary to the child’s welfare. [Citations omitted.]

[57]       The motion judge's conclusion on this issue was amply supported on the record. If the child stays here, she will continue to be cut off from her siblings and her father. The mother's unilateral conduct in reducing or eliminating the father's role in the child's life is inconsistent with the child's best interests. There will also be economic stability if she returns to Bangladesh. On the other hand, the primary benefit of staying in Canada with her mother in a shelter is that the child will not lose her refugee claim. However, as noted, we know nothing about that claim, and according to the appellant, we are prohibited from knowing about it.

(iv)        Summary

[58]       In summary, the motion judge carefully reviewed the three-part test for a stay and made no error in principle. The fact that the majority would have weighed the factors differently had they heard the stay motion is of no moment and cannot form the basis for an order overturning the motion judge’s discretionary order.

(c)         Panel review of a single judge motion.

[59]       I end my analysis with a final note on panel review motions because the majority’s reasons represent a serious danger to this court’s review process should they be followed in the future. Over the last several years, panel reviews have increased to the point where they are now a regular occurrence in this court. The internal data shows they are rarely successful, given the high threshold for a panel to overturn a motion judge, especially on discretionary decisions. They are often used to delay cases, which I hasten to add is not the situation here. Litigants also use them to shop for a sympathetic judge, which is what appears to have happened in this case.

[60]       These concerns have led to a discussion about whether panel reviews should be eliminated. The majority’s reasons, which are nothing more than a recitation of what they would have done had they heard the stay motion, will only encourage the tactical use of panel reviews. Indeed, this case proves the strategic advantage offered by panel reviews. A motion judge may apply the law and exercise their discretion in an entirely reasonable and correct manner, but all it takes is for two judges of this court to accept an argument that the relevant factors should have been weighed differently, and that decision will be set aside. Effectively, the appellant is granted double appeal rights.

[61]       In the future, if we are just going to pay lip service to deference, perhaps the better course is to eliminate single judge motions and have litigants proceed directly to a panel of this court.

Part III: Disposition

[62]       In conclusion, the majority’s reasons are unprecedented, wrong in law, and internally inconsistent. They represent a fundamental misunderstanding of the role of a panel reviewing an order of a single judge. Further, their long-term impact is potentially serious as they will encourage the misuse of panel reviews for judge-shopping purposes. I would dismiss the motion.

Released: December 17, 2024 “C.W.H.”

“C.W. Hourigan J.A.”