What role does a pending refugee claim play in family law proceedings?
In the case of M.A.A. v. D.E.M.E 2020 ONCA 486, the appellant mother brought her three minor children from Kuwait to Canada without the respondent father’s consent. On arrival in Canada, she sought refugee status for herself and the children. She claims she fled an abusive relationship that put her safety and that of her children at risk of serious harm.
The father denied the allegation and claimed that she wrongfully kidnapped the children. The father applied for an order requiring that the children be returned to Kuwait.
Subsequently, the mother asked Ontario to exercise jurisdiction to decide her custody claim. The basis for her claim was s. 23 of the Children’s Law Reform Act, R.S.O., 1990, c. C.12 (CLRA), which, despite other jurisdictional limits, permits an Ontario court to exercise its jurisdiction to make custody and access orders where the child is physically present in Ontario and the court is satisfied on a balance of probabilities that the child(ren) would suffer serious harm if removed from Ontario.
The application judge found that Ontario did not have jurisdiction under s. 23 because there was no risk of serious harm to the children, and ordered the children returned to Kuwait.
The mother appealed the order, and argued that the application judged erred in her determination of serious harm, or in the alternative, that the application should have been adjourned pending a determination of a refugee status. The mother’s appeal was supported by the Office of the Children’s Lawyer (OCL) and the four interveners: United Nations High Commissioner for Refugees (UNHCR), Canadian Association of Refugee Lawyers (CARL), Amnesty International Canada, and Barbra Schlifer Commemorative Clinic.
The ONCA concluded that the evidence stablished a risk of serious harm, and that it was an error to order the return of the children to Kuwait in the face of their asylum claim:
Given the outstanding refugee applications, returning the children before a full review of the merits of the asylum claim not only puts the children in a position of irreparable harm, but also violates Canada's obligations under the 1951 Refugee Convention and the Convention on the Rights of the Child, and compromises the integrity of Canada’s refugee determination system.
As discussed in M.A.A., the principle of non-refoulement has been considered the cornerstone of international refugee protection. Canada has implemented the principle of non-refoulement in s. 115(1) of the Immigration and Refugee Protection Act:
115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
CARL and UNHCR submitted that the principle of non-refoulement applies not only to recognized refugees, but also to asylum seekers whose status has not yet been determined. Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers.
The ONCA held in M.A.A. that there will be irreparable harm to the children because if a child is ordered returned to a place from which asylum is sought, the child's rights to asylum are lost. A person is not permitted to continue a refugee claim once in their home country. Nor is the person entitled to make a second claim should the person return to Canada: Immigration and Refugee Protection Act, at ss. 96 and 101(1)(c)).
As per Article 22 of the Convention on the Rights of the Child (which Canada is a signatory of):
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
The ONCA adopted the reasoning of the High Court of Justice of England and Wales in F.E. v. Y.E.,  EWHC 2165 (Fam), which held at para. 17:
Approaching the matter from first principles I have no hesitation in concluding that where a grant of asylum has been made by the Home Secretary it is impossible for the court later to order a return of the subject child under the 1980 Hague Convention. Equally, it is impossible for a return order to be made while an asylum claim is pending. Such an order would place this country in direct breach of the principle of non-refoulement. It is impossible to conceive that the framers of the 1980 or 1996 Hague Conventions could have intended that orders of an interim procedural nature could be made thereunder in direct conflict with that key principle.
Thus, an ongoing refugee claim can act to frustrate a return contemplated by the Hague Convention or other Provincial (family) legislation.