The court emphasized that the family came to Canada temporarily
The Ontario Court of Appeal dismissed a mother’s motion to stay an order returning her child to Bangladesh, finding no evidence of harm or merit in her refugee claim, and emphasizing that the family's visit to Canada was temporary.
In A.A. v. Z.M., 2024 ONCA 768, the mother had sought to stay an earlier order, which mandated the return of the couple’s 13-month-old child to the father’s care in Bangladesh. The case involved a Bangladeshi family who arrived in Canada on May 2 on a three-week vacation but later encountered conflict when the mother sought asylum in Canada against the father’s wishes.
During the family’s stay, tensions escalated after the mother expressed a desire to remain in Canada with their daughter and applied for refugee status. This led to disputes, a police intervention, and criminal charges against the father. The father responded by filing an urgent motion for the child’s return to Bangladesh and interim parenting time. He also initiated custody proceedings in Bangladesh.
The motion judge ruled in the father’s favour and ordered the child’s return, noting the mother’s failure to present evidence that the child would face serious harm in Bangladesh. Although the mother had commenced a refugee claim, she did not provide any substantive basis for it. The judge emphasized that the mother acknowledged the child’s ties to Bangladesh and her own support network in that country, which included relatives and two children from a previous marriage.
The mother appealed, arguing that the pending refugee claim should halt the return order. She cited a prior ruling which held that a return order should not be made while a refugee claim is pending. However, the Court of Appeal found the mother’s reliance on that case too literal, emphasizing that the factual context involved clear evidence of harm to the child. The court determined that the present case differed significantly, as the family’s initial visit to Canada was intended to be temporary.
The court ruled that the mother’s refugee claim was not meritorious and that there was no evidence of serious harm if the child were returned. It noted that forcing the child to stay in Canada while the asylum process unfolded could complicate future custody determinations. Ultimately, the court dismissed the mother’s stay motion.
