Bangladesh or Canada: Motions judge considers child’s future

Law360 Canada (October 24, 2024, 2:58 PM EDT) --

John L. Hill

Justice Ian Nordheimer of the Ontario Court of Appeal, sitting as a motions judge, recently dealt with two applications: one from the mother and the second from the father of a Bangladeshi child. Z.M., the mother, and A.A., the father, brought their 13-month-old child with them on a three-week vacation in Canada. The couple held visitor visas and round-trip tickets, suggesting that their initial intention was to return home after completing their holiday.

Z.M. decided she would like to remain in Canada and seek asylum here. A.A. was opposed. He had secure employment, a home and financial assets in Bangladesh and was adamant he did not want to abandon those assets. The mother and the father got into a heated argument, especially after Z.M. filled out a refugee application for her and the daughter. Z.M. called the police on her husband, and he was criminally charged.

A.A. brought his motion to obtain an order to return the child to Bangladesh. He also instituted action in his home country, seeking custody and an order for her to be returned. Z.M. resisted by delaying the filing of her response and seeking adjournments, supposedly to retain counsel, which she never did. When the motion was finally heard, Z.M. admitted that the child was Bangladeshi and had family support in the country of her birth.

She gave no factual foundation for her refugee claim and did not explain how such an application could be filed for the daughter without the father’s consent. When the motion came on for hearing, the mother was living in a shelter without support or income.

A Superior Court motion judge, Justice Carolyn Horkins, heard the case in the first instance. That judge recognized that Bangladesh was not a signatory to the Hague Convention, so the Court had to examine the Children’s Law Reform Act, R.S.O 1990, c.C-12 (CLRA). The decision in the lower court was to decline the application since there was no evidence the child would be harmed if she were to be returned to her home country. Z.M. then appealed by moving to stay the order relying on the decision in A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486.

Justice Nordheimer sat as a motions judge to consider applications for orders pending the hearing of Z.M.’s appeal of Justice Horkins’s decision (A.A. v. Z.M., 2024 ONCA 768).

Justice Nordheimer distinguished the A. (M.A.) case by noting that in that cited case, there was evidence of serious harm to the mother and the children from an abusive relationship that caused them to leave Kuwait. The case does not stand for the proposition that a court is without jurisdiction to uphold the principles in the CLRA. Refugee claims can drag on for a considerable time. It would not be just to allow a child to live in a shelter without support when that child would be better cared for in her homeland, where she could count on family support and enjoy emotional and financial benefits not available to her here.

The test for a stay application is that the applicant must show irreparable harm. In this case, the harm is that the mother and child will lose their refugee status if required to return. However, there is not a scintilla of evidence that Z.M.’s refugee claim has merit.

The danger that the father will not return the daughter to Ontario should Z.M. ultimately win the appeal of the Horkins’s order is offset by the fact that the father has promised the daughter’s return if the decision ultimately favours the mother. Even if he does not do so, the courts in Bangladesh operate on the “best interest of the child” principle and could order a return. Thus, a stay order was refused.

Justice Nordheimer further considered the mother’s request that the parties use initials rather than referencing their full names. He held that this case would not seriously harm the open courts principle. Similarly, a publication ban was ordered regarding divulging information in the court record that could identify the parties or the child.

A.A. brought a motion seeking security for costs. He requested an order that his wife post security for the costs of the proceedings, including the appeal, of over $30,000. Z.M. has no money, and unless such an order is granted, there is no downside to her extending proceedings.

Such an application requires the motion judge to consider the justness of the order sought (Yaiguaje v. Chevron Corporation, 2017 ONCA 827).

While Justice Nordheimer had concerns about the merits of Z.M.’s appeal, she is legally entitled to pursue it. Requiring her to post security for costs risks denying her right to pursue the appeal. Accordingly, A.A.’s motion was dismissed.

The order for a stay sought by the mother was dismissed, but an order will go that the father shall return the child to Ontario if Z.M.’s appeal is ultimately successful. No security for costs was ordered, and an order awarding costs of these motions was not granted.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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