Zafar v Saiyid 2018 ONCA 352
The Appellant and the Respondent are married with two young children. The children were born and raised in England, but are also Canadian citizens. On the Respondent’s consent, the Appellant brought the children to Canada to visit her parents. However, while in Canada, the Appellant advised the Respondent that their marriage was over and that she and the children would not be returning to England.
The Respondent brought an Application in accordance with Article 12 of the Hague Convention to have the children returned to England. Under Article 12 of the Hague Convention, where the court determines that a child has been wrongfully removed or retained from their habitual residence, the Court shall order the return of the children forthwith.
Notably, during the hearing, the Appellant conceded that the children were habitually resident in London, England. However, the Appellant argued against the return of the children to England on the basis of Article 13(b) of the Hague Convention. That is, the Appellant argued that the Respondent poses a grave risk of physical and psychological harm to both herself and the children. The Respondent wholly denied the accusations of abuse.
The trial judge declined to conduct a risk analysis. He stated, “in a Hague application, I am not to determine the best interests of the children; only jurisdiction. In an event, on affidavits alone, I cannot determine who is telling the truth about [the Respondent’s] conduct”. Ultimately he concluded that the allegations of abuse were the jurisdiction of the English Courts.
The trial judge ordered that the Appellant return the children to London, England, failing which, the Respondent would have sole custody of the children and could return to England with the children.
The Appellant brought an appeal on the following rounds:
- The trial judge erred in awarding custody to the Respondent as a consequence to the Appellant’s breach of the order;
- The trial judge erred in ordering that the appellant return to England with the children; and
- The trial judge erred in declining to assess whether the grave risk of harm to the children override provision in Article 13(b) was engaged.
The Appellant was not seeking a new hearing of the Respondent’s original application, but rather, she is content that the English courts decide the issue between the parties. However, she was concerned that the trial judge’s decision may prejudice her position in the English proceedings.
The Court of Appeal held that “to award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests” (para 14).
Furthermore, the Court of Appeal held that it was not within the trial judge’s jurisdiction to order the Appellant to return to England with her children.
Moreover, the Court of Appeal held that the trial judge erred in stating that he could not determine whether the children were at grave risk of serious harm and delegating this analysis to the English Courts.
The Court of Appeal went on to explain that Article 13(b) of the Hague Convention requires the Court to consider the possibility of grave risk of physical or psychological harm to the children arising from an order returning them to their country of habitual residence. The Court of Appeal cited Cannock v Fleguel and held that “a grave risk of harm to a child’s mother can establish a risk to the child as well”.
In the view of the Court of Appeal, it was an error for the trial judge to explicitly decline to decide as to whether he believe the allegations of abuse that, if believed could engage the protective function of the Court to decline to order the children’s return. The Court of Appeal found that on the existing record of conflicting affidavit evidence, it was incumbent on the trial judge to consider whether oral evidence was required to allow him to complete a risk analysis or whether he could make a decision based on the sufficiency of the record and the Appellant’s evidentiary notice. The Court of Appeal held that he erred in doing neither and instead delegating the risk assessment to the English Courts.
Ultimately, the Court of Appeal held that the orders of the trial judge be set aside.