In Ahmed v. Abdelmoaein, 2025 ONCA 508, the Ontario Court of Appeal delivered an important decision for family law practitioners navigating international child abduction cases. At the heart of the dispute was whether a parent’s general immigration planning—without explicit, time-specific agreement—could amount to consent or acquiescence under Article 13(a) of the Hague Convention.
The answer, according to the Court, is a firm NO.
The Hague Convention and Article 13(a)
Under Article 13(a) of the Hague Convention, a court may refuse to return a child to their habitual residence if the parent seeking return had consented to or subsequently acquiesced in the child’s removal or retention. However, this exception is interpreted narrowly. The burden of proof lies with the parent resisting return, and they must show clear, unequivocal evidence of consent or acquiescence as of the time of retention.
In this case, the legal question was whether the father had consented to or acquiesced in the child’s retention in Canada as of September 28, 2023. The trial judge found that he had, based on the parties’ immigration history and long-term plans to move to Canada.
The Background: A Holiday Turned Retention
The parties were married in Egypt in 2016 and lived in London, UK, where their child was born in 2019. The family began applying for Canadian permanent residence in 2018. In September 2023, they travelled to Ottawa—intending only a short stay—to activate their permanent residence status.
They booked return tickets for October. The father arranged time off from work. The child was already registered in a London nursery school, set to begin in the fall.
But on September 28, the mother informed the father that she and the child would not be returning to the UK. The father objected immediately. The next day, he contacted the British High Commission and was advised to pursue a Hague Convention application. He returned to London and did just that.
The Superior Court’s Misstep: Blurring Future Plans with Present Consent
The application judge, Justice Doyle, found that the child’s habitual residence remained in the UK – a finding not challenged on appeal. However, she declined to order the child’s return, applying the Article 13(a) exception based on the father’s alleged consent or acquiescence.
Her reasoning leaned heavily on the couple’s prior immigration activity. They had applied for permanent residence, discussed relocation, and the father had applied for an Ontario photo card during the trip.
But as the Court of Appeal would later emphasize, these facts may speak to future intentions – not to agreement at the critical moment of retention.
The Court of Appeal’s Clarification: Timing Is Everything
Writing for a unanimous court, Rouleau J.A. rejected the lower court’s interpretation. Article 13(a) is clear: the relevant question is whether the left-behind parent consented to or acquiesced in the child’s retention at the time it occurred – not whether they contemplated a move abroad someday.
The Court reaffirmed that:
- Consent is typically explicit and given in advance.
- Acquiescence is passive and occurs after the fact, inferred from conduct.
Both require clear and cogent evidence of unequivocal intent, assessed subjectively from the perspective of the left-behind parent (Katsigiannis v. Kottick-Katsigiannis, 55 O.R. (3d) 456 (C.A.)).
The father’s actions told a very different story: he immediately objected, left Canada, and initiated legal action without delay. That conduct, the Court held, was entirely inconsistent with any suggestion of consent or acquiescence.
Practical Guidance for Family Law Counsel
Maintain Temporal Precision
Consent and acquiescence under Article 13(a) must be specific to the date of wrongful retention. Immigration discussions, residency approvals, or even document applications are irrelevant unless they clearly relate to the parent’s intent at the time of the child’s non-return.
Evidence Strategy by Role
For counsel representing the left-behind parent:
- Document the timeline meticulously.
- Highlight immediate objection and legal action. Delay can risk a finding of acquiescence.
- Use all communications, travel confirmations, school registrations, and legal steps to build a narrative of non-consent.
For counsel representing the taking parent:
- Avoid relying on vague relocation plans or informal discussions.
- Ensure that any defence under Article 13(a) is grounded in unequivocal conduct or documented permission to retain the child past the agreed return date.
Be Clear on the Burden
The onus lies squarely on the parent resisting return. It’s not enough to show planning or long-term immigration activity. They must establish that the left-behind parent clearly agreed to the child not being returned—either before or after the fact.
Conditional Return Orders: A Tool for Transition
Acknowledging the practical realities, the Court imposed ameliorative undertakings to support the child’s return to the UK. These included:
- Payment for return travel and housing
- Ongoing child support
- Non-removal orders
- Support in securing a UK visa for the mother
The Court made clear, however, that parenting orders and decision-making responsibility remain within the UK court’s jurisdiction.
This balance between Hague enforcement and compassionate transition planning reflects the SCC’s guidance in F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387.
Why This Case Matters
Ahmed v. Abdelmoaein affirms a strict reading of Article 13(a) and places the focus where it belongs: on the moment of retention, not the broader context of a family’s immigration journey.
The decision is especially timely in today’s mobile world. Many families maintain connections to multiple countries and juggle layered legal systems. But this case makes clear that, under the Hague Convention, only precise, date-specific conduct will do.
Final Word
This ruling is a strong reminder that exceptions to the Hague’s return requirement are narrow and must be proven with precision. Lawyers should approach these cases with clear eyes—and an even clearer timeline.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Specialized Family Law Practice: Cheryl brings a wealth of experience spanning nearly 40 years dedicated exclusively to family law.
- Masters Degree in Counselling: Her Masters Degree in Counselling informs her uniquely empathetic approach to each case.
- Certified Family Law Specialist: The Law Society of Ontario has certified Cheryl as a Family Law Specialist, recognizing her expertise in the area.
- Accreditation as a Mediator by the OAFM: Cheryl’s expertise is reflected in her accreditation from the Ontario Association for Family Mediation.
- Designated ADR Professional by Ontario’s ADR Institute: As a highly respected arbitrator, Cheryl’s designation reflects her recognized expertise in family law arbitration.
- Recipient of Numerous Awards and Honors: Among Cheryl’s many awards, honours and accolades is the prestigious Award for Excellence in Family Law from the Ontario Bar Association.
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