Author: dawi

“The test for deducting disposition costs from NFP as set out in Sengmueller v. Sengueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at pp. 213, is as follows:

In my view, it is equally appropriate to take such costs into account in determining net family property under the Family Law Act if there is satisfactory evidence of a likely disposition date and if it is clear that such costs will be inevitable when the owner disposes of the assets or is deemed to have disposed of them. In my view, for the purposes of determining net family property, any asset is worth (in money terms) only the amount which can be obtained on its realization, regardless of whether the accounting is done as a reduction in the value of the asset, or as deduction of a liability: the result is the same. While these costs are not liabilities in the balance sheet sense of the word, they are amounts which the owner will be obliged to satisfy at the time of disposition, and hence, are ultimate liabilities inextricably attached to the assets themselves. This is consistent with McPherson but goes beyond it. [Emphasis added.]

This court had, in the earlier case of Starkman v. Starkman (1990), 1990 CanLII 6793 (ON CA), 75 O.R. (2d) 19 at pp. 23 and 26, adopted the approach from McPherson v. McPherson (1988), 63 O.R. 2(d) 641, as set out in the following passage from McPherson, at p. 647:

… an allowance should be made in the case where there is evidence that the disposition will involve a sale or transfer of property that attracts tax consequences, and it should not be made in the case where it is not clear when, if ever, a sale or transfer of property will be made and thus the tax consequences of such an occurrence are so speculative that they can safely be ignored. [Emphasis added.]

The test used by the application judge is stricter than the tests in Sengmueller and McPherson. The application judge looked to whether the disposition of the assets was inevitable. Instead, she should have determined whether it was more likely than not that the assets would be sold, at which point disposition costs would inevitably be incurred.”

         Buttar v. Buttar, 2013 ONCA 517 (CanLII) at 19-21

“The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 SCR 53.  In paragraphs 53 and 54, the Court sets out how the forms of estoppel have been established in law.  It quotes from Spencer Bower P.180 in para. 54 as follows:

An estoppel by convention, it is submitted, is an estoppel by representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent.  This form of estoppel is founded, not on a representation made by a representor and believed by a representee, but on an agreed statement of facts, or law, the truth of which has been assumed, by convention of the parties, as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to resile from the agreed assumption, then he will be entitled to relief against the other according to whether the estoppel is as to a matter of fact, or promissory, and/or proprietary.

The Court, then, in para. 59, said that the following criteria form the basis of the doctrine of estoppel by convention:

(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption.  Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption.  The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

With respect to estoppel by representation, the Moving Parties rely on the Supreme Court of Canada’s decision in Canadian Superior Oil Ltd. v. Hambly, 1970 CanLII 3 (SCC), [1970] S.C.R. 932, [1970] S.C.J. No. 48, which set out in para. 19, the factors giving rise to estoppel.  They are:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part the person to whom the presentation is made;

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made;

(3) Detriment to such person as a consequence of the act of omission.

It is to be noted, however, that estoppel by representation cannot arise from silence unless a legal duty is owed by the representor to the representee to make the disclosure.  See:  Ryan v. Moore, 2005 SCC 38 at para. 76.”

         Leibel v. Leibel, 2014 ONSC 4516 (CanLII) at 56-59

“The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to foster four fundamental purposes:

(1)   to partially indemnify successful litigants;

(2)   to encourage settlement;

(3)   to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), 2003 S.C.C. 71, paragraph 25.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24 (12), subrule 24 (4) pertaining to unreasonable conduct of a successful party, subrule 24 (8) pertaining to bad faith, subrule 18 (14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, at paragraph 94.

Subrule 24 (1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ-Family Court).

Subrule 24 (6) sets out that if success in a step in a case is divided, the court may apportion costs as appropriate.

Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. See: Jackson v. Mayerle, 2016 ONSC 1556, paragraph 66.

Where there are multiple issues before the court, the court should have regard to the dominant issue at trial in determining success. See: Firth v. Allerton, [2013] O.J. No. 3992 (SCJ); Mondino v. Mondino, 2014 ONSC 1102.

Subrule 24 (12) reads as follows:

24 (12) In setting the amount of costs, the court shall consider,

a)  the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i)   each party’s behaviour,

(ii)  the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

iv)   any legal fees, including the number of lawyers and their rates,

v)   any expert witness fees, including the number of experts and their rates,

vi)  any other expenses properly paid or payable; and

(b) any other relevant matter.

Subrule 24 (5) provides some criteria for determining the reasonableness of a party’s behaviour in a case. It reads as follows:

 DECISION ON REASONABLENESS

(5)  In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

Being unsuccessful does not necessarily equate to being unreasonable. See: Wauthier v. McAuliff, 2019 ONSC 5302; W.H.C. v. W.C.M.C., 2021 ONCJ 363.

The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855.

The rules do not require the court to allow the successful party to demand a blank cheque for their costs. See: Slongo v Slongo 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. See: Jackson v. Mayerle, 2016 ONSC 1556.

In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See: Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

The court should also take into consideration the ability of a party to pay costs. See: MacDonald v. Magel (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Ability to pay will be less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit. See: Gobin v. Gobin, 2009 ONCJ 278; D.D. and F.D. v. H.G., 2020 ONSC 1919.

Those who can least afford to litigate should be most motivated to seriously pursue settlement and avoid unnecessary proceedings. See: Mohr v. Sweeney, 2016 ONSC 3338; Balsmeier v Balsmeier, 2016 ONSC 3485.

Impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably. See: G.W.S. v. C.S., 2018 ONCJ 378.”

         Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424 (CanLII) at 12-29

“The only past conduct that is relevant to the determination of a parenting order is the part’s conduct which is “relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order”: s. 16(5). Courts allocating parenting time are required to adhere to the principle that “a child should have as much time with each spouse as is consistent with the best interests of the child”: s. 16(6), Knapp v. Knapp, 2021 ONCA 305, at para. 34.

Neither parent has the right to create a unilateral parenting status quo, even if there is an alleged safety issue. As Charney J. wrote in Gray v. Canonico, 2020 ONSC 5885:

49  The cases are abundantly clear, however, that, contrary to the assertion of the respondent, the status quo cannot be established or altered by the unilateral “self-help” conduct of one parent. A parent cannot be permitted to gain a litigation advantage by unilateral action: See Rifai v. Green, 2014 ONSC 1377, at para. 25:

The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

50  Even if there is an alleged safety issue, a parent taking steps to ostensibly protect the child must still come to the court at the earliest opportunity on an urgent basis: Skitch v. Hiscock, 2018 ONSC 5581, at para. 15.”

         Ivory v. Ivory, 2021 ONSC 5475 (CanLII) at 30

“The law with respect to misnomer is well-settled.

Rule 5.04(2) [of the Rules of Civil Procedure] provides the court with discretionary jurisdiction to correct a misnomer.  The entitlement to misnomer relief is conditional on satisfying the “litigation finger test”. In Stechyshyn v. Domljanovic 2015 ONCA 889 at para. 1, the Court of Appeal described the test as follows:

On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period.

With respect to misnamed plaintiffs, misnomer relief is available where a party intended to commence proceedings in one name “but, in error, the proceedings were commenced in another name”; see Mazzuca v. Silvercreek Pharmacy Ltd., 2001 CanLII 8620 at para. 48 (Ont. C.A.); and Picov and Picov Farms Ltd. v. Generac Power Systems Inc. et al., 2020 ONSC 852.

Rule 5.06(2) provides the court with a residual discretion to refuse misnomer relief even when the litigation finger test is satisfied. In exercising this jurisdiction, the factors that deserve the greatest weight include whether the correct party was misled or was unduly prejudiced; however, where the mistake is more than a mere irregularity, the court may exercise its residual discretion to refuse to allow the correction; see Ormerod v. Ferner, 2009 ONCA 697 at paras. 28-32.”

            Pasandideh v. Vahidi, 2021 ONSC 5459 (CanLII) at 9-12

“The law that I have considered in this matter is the following from the jurisprudence that is developed around capacity in family law matters dealing with individuals that are suffering from mental health issues. Rule 4 of the Family Law Rules speaks of “special parties” and provides for the appointment of a legal representative for these parties, as well as other procedural protections.

In the recent Ontario Court of Appeal decision of Kowalsky 2018 ONCA 539, it is clear that failure to deal with this issue of a party’s capacity in litigation is a reviewable error and it must be dealt with and recognized as the responsibility by all parties once this issue has been raised. This is the responsibility of the court, the parties’ lawyer, the opposing party. Therefore in this matter the Society has recognized this and has rightfully brought this matter to court.

This issue must be dealt with first before any other proceeding can go forward.

Justice Backhouse in the case of Children’s Aid Society of Toronto summarizes the applicable principles that were established in Re Koch (1997), 1997 CanLII 12138 (ON SC), 33 OR (3d) 485:

What is in one’s best interest must not be confused with one’s cognitive capacity. It is mental capacity and not wisdom that is the subject of the Substitute Decision Act, 1992 supra. It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. The test for incapacity is an objective one. There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity. Notwithstanding the presence of some degree of impairment, the question to be asked is whether one has retained sufficient capacity to satisfy the Substitute Decision Act, 1992, supra.

A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party. Nezic v. Nezic 2013 Carswell Ont 4003 at paragraph 2.

The main issue in these incapacity hearings is the difference between failing to understand versus being unable to understand. It is mental capacity and not wisdom that is at issue.

What is in one’s best interest must not be confused with cognitive capacity – capable people are permitted to make poor choices.

The test for capacity is an objective one, and compelling evidence is required to override the presumption of capacity.

Generally, in these matters evidence that is presented is from people who know the litigant over a period of time.

The appearance, demeanour and conduct of a litigant before the court.

Testimony of the litigant, their filed materials and transcripts.

The opinion of the litigant’s own counsel.

Current, relevant medical evidence is the best evidence and should be produced where possible.”

         Children’s Aid Society of Peel v. S.C., 2019 ONCJ 622 (CanLII) at 35-47

“Inconsistencies in a witness’s evidence, even absent corroborative evidence, do not open the door to appellate review of a trial judge’s credibility findings: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 70, 72, and 75-76. A trial judge may place less weight on certain evidence and accept other, conflicting evidence that they find more convincing. An appellate court cannot intervene just because it would weigh the evidence differently and arrive at alternative factual findings: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

Moreover, a trial judge’s credibility findings attract heightened deference: R. v. G.F., 2021 SCC 20, 71 C.R. (7^th) 1, at para. 81; McDougall, at para. 72. A trial judge need not find a witness not credible or unreliable because of inconsistences in the witness’s evidence. If the trial judge was alive to the inconsistencies, assessed the witness’s credibility in the context of the evidence as a whole, and concluded that the witness was credible, absent palpable and overriding error, there is no basis for an appellate court to interfere: McDougall, at paras. 70, 75-76.”

         Calin v. Calin, 2021 ONCA 558 (CanLII) at 15-16

“The mother was three days late in serving her notice of appeal. She sought consent from the father to the late filing of the notice of appeal, which was refused. Courts can extend time under r. 3.02 of the Rules of Civil Procedure. In general, the following factors are relevant to a motion to extend time to appeal: (1) whether the appellant formed an intention to appeal within the relevant period (in this case 30 days after the final order); (2) the length of, and explanation for, the delay; (3) prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately, whether it is in the interests of justice to order the extension of time. In cases involving children, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, at para. 10.

The mother states in her affidavit that she formed the intention to appeal within the requisite time. She explains that the delay resulted from a combination of the traumatic effect of the final order and the time that was required to retain appellate counsel. The motion was brought promptly.

The father opposes the motion for an extension of time, asserting that the mother waited until she received his costs submissions before deciding to appeal. He asserts that he is prejudiced, in part because the mother has failed to pay her share of the costs of the Family Bridges program. He asserts that the merits of the appeal are weak.

I am satisfied that an extension of time is in the interests of justice.

The mother had a right to appeal the final order of the trial judge and the right to seek leave to appeal the award of costs. The final order reverses custody of R. and prevents the mother from having any contact with R. for a period of time, and the mother is subject to an award of substantial indemnity costs. The mother was only three days late in serving her notice of appeal. Even if she decided to appeal only after she received the father’s costs submissions, she formed the intention to appeal within 30 days of the final order. The final order has been implemented to the extent that R. is residing with her father, and they are participating in the After Care program. R.’s contact with her mother is suspended. Other than the mother’s non-payment of her share of the Family Bridges program required under para. 20 of the final order (it is a financial provision that would be stayed on appeal), the mother has complied with the final order. The therapists have indicated that her involvement in the After Care program is suspended during her appeal.

I am not prepared to say that there is no potential merit to this appeal. In view of the very short delay, the strength of the proposed appeal is not a compelling factor in this case. The mother has a right to appeal the final order and a three-day delay should not prevent her from doing so.”

         D.C. v. T.B., 2021 ONCA 562 (CanLII) at 3-8

“The leading case with regards to the test to establish “urgency” under rule 14 (4.2) of the Family Law Rules and, thus, to be permitted to have a motion heard before case conference is Rosen v. Rosen 2005 CarswellOnt 68.  In that case, Justice Wildman provided the following guidance:

2 Generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge.  There is a deliberate attempt to try to avoid the damage that flows from the “nasty affidavit war” that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.

3 In some instances, the parties cannot wait for a case conference. Rule 14 (4.2) provides that a court may hear a motion prior to a case conference if there is urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

4 Mr. Singer says there is very little reported case law on the issue of what constitutes “urgency”. He refers me to the Webster Dictionary definition of “urgent”, which is “Pressing; necessitating or calling for immediate action; earnestly insistent; importunate.”

5 He has also directed me to the decision of Belch J in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J. – Family Court) in which this definition was considered. Justice Belch refused to hear the motion in that case before a case conference. He commented, “It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.”

6 I agree with Justice Belch. However, given the apparent lack of direction in the case law about what constitutes urgency, I will add my comments about how I approach a request to proceed with an “urgent” motion prior to a case conference.

7 The first step should be an inquiry as to when case conference dates are available to deal with the matter. If there is a particularly pressing issue, the trial coordinator should be made aware of this, as there may be times that could be made available for cases of urgency to avoid a motion.  In this particular case, I was surprised to hear from Mr. Singer that he had made NO inquiry about available case conference dates prior to bringing his motion. He says he assumed from a case conference date that was assigned in another matter that there would be a wait of 3 to 4 weeks. He was surprised to learn from me that there are dates available in this court on January 14 (two days from now); January 17 and 21 (Monday and Friday of next week) and January 24 (the following week). There are also several dates available after January 24.

8 The availability of case conference dates is important in assessing urgency. Obviously, if a date was not available for several months, a situation that would not otherwise seem urgent might become more critical.

9 The next step prior to bringing a motion should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. While the court will not want to hear about the content of offers that have been exchanged, due to the confidentiality provisions of Rule 18(8) it is important to know whether the parties have made some attempt to negotiate and, if not, why not.

10 For example, if an urgent motion is being considered because an applicant is in dire need of support, it is helpful in assessing urgency for the court to know whether support has been requested from the other side and, if so, whether proposals have been made. Generally, counsel will advise the court of their positions as part of their opening statements on the issue of urgency. I have seen situations where a moving party “urgently” requests, for example, $2000/month support to see him or her through to the first case conference date. In assessing whether this motion is urgent or not, it will make a difference to know whether the other side is completely refusing to pay any funds or is prepared to pay enough money to address immediate needs but not necessarily the amount requested by the moving party.  If the payor’s opening position to the court is that he or she will pay, for example, $1500/month rather than the requested $2000 until the case conference, the urgency becomes less compelling. A similar analysis could be applied to “urgent” motions for custody, access, etc. It is generally difficult to establish that a motion is urgently needed, absent any attempt to resolve the issues by negotiation prior to bringing the motion.

[…]

12 Absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established.

         Bernard v. Fuhgeh, 2017 ONSC 4727 (CanLII) at 24

“The principle of non-refoulement – a principle that forbids a country from returning an asylum seeker to a country in which they would likely be in danger of persecution – 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, S.C. 2001, c. 27, which provides:

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.

Canada has ratified both the 1951 Refugee Convention and the Protocol relating to the Status of Refugees. In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 72, the Supreme Court explained that “the Refugee Convention . . . expresses a ‘profound concern for refugees’ and its principal purpose is to ‘assure refugees the widest possible exercise of … fundamental rights and freedoms’”.

As submitted by CARL and UNHCR, 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.

If, under the CLRA, 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)).

Further, art. 22 of the Convention on the Rights of the Child provides:

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.

I adopt the reasoning of the High Court of Justice of England and Wales in F.E. v. Y.E., [2017] 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. [Emphasis added.]

This same reasoning applies to a potential return order under s. 40(3) of the CLRA.

Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim.

The OCL’s submissions (and the mother’s alternate submission) go further to suggest that the entire application, including the mother’s request that Ontario exercise its jurisdiction to make custody and access orders for the children under s. 23 of the CLRA, should have been adjourned pending the refugee determination. I disagree for three reasons.

First, it is the s. 40(3) return order that would engage the non-refoulement principles, not the s. 23 analysis. Section 40(3) empowers the court to make a return order in extra-provincial matters. The section reads:

40.    Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1.    Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2.   Stay the application subject to,

i.    the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii.    such other conditions as the court considers appropriate.

3.    Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

Section 40 confers broad powers on the court and unlike the terms of the Hague Convention, does not require a return of the child to his or her habitual residence absent engagement of the harm exception.

A return order must not be made under s. 40(3) in the face of a pending refugee claim. This is consistent with the submissions of Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of the removal order under s. 40(3) that extinguishes the refugee claim. (I would leave to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim).”

         M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII) at 61-72