When Refugee Protection Orders Meet Family Law in Ontario - The Child Stays for Now

A.A. v. Z.S.M., 2025 ONCA 283

The child remains in Ontario awaiting a new hearing in the Superior Court of Justice

In a powerful reminder of the overlap between immigration law and Ontario family law, the Court of Appeal in A.A. v. Z.S.M., 2025 ONCA 283 overturned an order that would have sent a child back to Bangladesh, despite outstanding refugee claims and allegations of domestic violence.

What Was the Issue?

The mother alleged abuse by the father and filed refugee claims for herself and their infant. The father sought the child’s return under s. 40 of the Children’s Law Reform Act (CLRA). The motion judge granted the return without considering the child’s risk of serious harm under s. 23. Basically, the case was about challenging a child return order.

Why the Court of Appeal Intervened

The motion judge made several key legal errors:

• Ignored the pending refugee claims, a mandatory consideration under the M.A.A. and A.M.R.I. cases.

• Refused to consider that exposure to spousal abuse, even if not directed at the child, could still constitute serious harm (para 47).

• Overlooked the consequences of separating the child from her primary, breastfeeding caregiver (paras 55-58]).

• Misapplied the framework set out by the Supreme Court in F. v. N., 2022 SCC 51, which requires joint analysis of s. 23 and s. 40 CLRA (para 76).

  
  

What Happens Now?

The child remains in Ontario pending a fresh hearing. The appellate decision effectively stayed (or paused the effect of) the return to Bangladesh, but did not make a conclusive ruling on decision making responsibility or refugee status.

The matter was sent back down to the Superior Court for a full evidentiary hearing, with the refugee claims set to be determined in 2025. The trial judge must now weigh:

• Whether the child faces serious harm under s. 23;

• Whether a return order should issue under s. 40 (para 108).

  
  

Takeaways

• Allegations of family violence must be assessed directly before returning a child internationally.

• A pending refugee application is not an automatic bar—but it is a vital part of the serious harm inquiry.

• Courts must balance Ontario’s family law framework with Canada’s international obligations under the Immigration and Refugee Protection Act.