M.A.A. v. D.E.M.E., 2020 ONCA 486: Child may not be returned from Canada before refugee claim is determined

  • November 02, 2020
  • Maryellen Symons

On August 29, 2020, the Ontario Court of Appeal rendered an important decision on the priority between a child’s refugee claim and a parent’s application for return of the child to another country.

The importance of the case is seen in the list of intervenors: the Office of the Children’s Lawyer; Amnesty International Canada; the Barbra Schlifer Commemorative Clinic; the Canadian Association of Refugee Lawyers; and the United Nations High Commissioner for Refugees.

The mother of three children, ages 11, 7, and 4 at the appeal hearing, brought them from Kuwait to Canada in 2018 without the father’s consent and claimed refugee status for herself and the children, claiming that the father’s abuse put her and her children at risk of serious harm.

The father applied under s. 40 of the Children’s Law Reform Act for an order that the children be returned to Kuwait. The mother asked Ontario to take jurisdiction, relying on s. 23 of the CLRA. The application judge found that there was no serious risk of harm to the children, declined to take jurisdiction, and order that the children be returned to Kuwait.