In Sakab Saudi Holding Company v. Al Jabri, the Court dismissed an appeal concerning the production of law firm trust ledgers and redacted bank statements in a civil fraud action involving Mareva orders on the basis that such records fell within the crime-fraud exception to solicitor-client privilege. There, the appellants sought production of certain unredacted records from the respondent’s law firms, worldwide, in the furtherance of the appellant’s claim for fraud. The Court held that the trust ledgers of a lawyer are presumptively privileged, that the presumption in this case was not rebutted, and that the appellant’s had failed to establish that the crime-fraud exception applied in the circumstances. The Court also dismissed both fresh evidence motions and upheld the remittal of the bank statement privilege issue to the motion judge.

In M. v. E., the Court allowed an appeal from an order returning a five-year-old child to Morocco pursuant to the Hague Convention. The appellant mother had removed the child to Canada without the respondent father’s consent. The application judge found that Morocco was the child’s habitual residence and that no exceptions to the mandatory return applied. The Court held that the application judge erred in her treatment of the respondent’s criminal conviction for assault against the child by considering it in isolation rather than cumulatively with the near-certain separation of the child from the appellant, the child’s primary caregiver, and the absence of other mitigating factors or a safety plan for the child’s wellbeing in Morocco. The Court ultimately set aside the return order, declaring Ontario to have proper jurisdiction under s. 23 of the CLRA to determine decision making and parenting time.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos 
Blaney McMurtry LLP
416.594.5083 Email

Table of Contents

Civil Decisions

Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586

Keywords: Torts, Motions, Fraud, Fresh Evidence, Privilege, Presumption of Privilege, Solicitor-Client Privilege, Scope, Exceptions, Crime-Fraud Exception, Administrative Records, Criminal Law, Court Orders, Breach of Court Orders,  Mareva Order, Norwich Order, Trust Ledgers, Bank Statements, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Canadian Charter of Rights and Freedoms, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), Law Society of Ontario, By-Law 9, s. 18, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, Kaiser (Re), 2012 ONCA 838, Housen v. Nikolaisen, 2002 SCC 33, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, R. v. McClure, 2001 SCC 14, R. v. Gruenke, [1991] 3 S.C.R. 263, Smith v. Jones, [1999] 1 S.C.R. 455, Solosky v. The Queen, [1980] 1 S.C.R. 821, Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, 2002 SCC 61, Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, S.E.C. v. M.P., 2023 ONCA 821, Maranda v. Richer, 2003 SCC 67, Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, [2003] O.T.C. 7 (Ont. S.C.), R. v. Campbell, [1999] 1 S.C.R. 565, Markson v. MBNA Canada Bank, 2011 ONSC 871, Industrial Alliance Securities Inc. v. Kunicyn, 2020 ONSC 3393, O’Rourke v. Darbishire, [1920] A.C. 581, R. v. Swearengen (2003), 68 O.R. (3d) 24 (S.C.), Sperry Corp. v. John Deere Ltd. (1984), 82 C.P.R. (2d) 1, Silverman v. Morresi (1982), 28 C.P.C. 239, Canbook Distribution Corp. v. Borins (1999), 7 C.B.R. (4th) 121, Re Goodman and Carr et al. v. Minister of National Revenue (1968), 2 O.R. 814, Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, 2008 CanLII 63181, Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, Al Sadeq v. Dechert, [2024] E.W.C.A. Civ. 28, R. v. Henry, 2005 SCC 76, James Estate (Re), 2024 ONCA 623, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. A.B., 2014 NLCA 8, Wigmore on Evidence, vol. 8 (Boston: Little, Brown and Company, 1961), David M. Paciocco, Lee Stuesser & Palma Paciocco, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), “The Future Crime or Tort Exception to Communications Privileges” (1964) 77 Harv. L. Rev. 730, Adam Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada Page: 41 Inc., 2014)

M. v. E., 2026 ONCA 584

Keywords: Family Law, International Law, Comity, Child Protection, Best Interests of the Child, Parenting, Relocation, Return Order, Objection of Child, Domestic Violence, International Child Abduction, Habitual Residence, Grave Risk of Harm, Mitigation, Fresh Evidence on Appeal, Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, arts. 12, 13, 20, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Immigration and Refugee Protection Act, SC 2001 c. 27, s. 101(1)(b.1), Children’s Law Reform Act, R.S.O. 1990, c. C.12, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Greblunias, 2022 SCC 22, M.A.A. v. D.E.M.E., 2020 ONCA 486, Ludwig v. Ludwig, 2019 ONCA 680, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, Thomson v. Thomson, [1994] 3 S.C.R. 551, Rayo Jabbaz v. Rolim Mouammar (2003), 226 DLR (4th) 494, F. v. N., 2022 SCC 51, Husid v. Daviau, 2012 ONCA 655, Kirby v. Woods, 2025 ONCA 601, Pollastro v. Pollastro, (1999), 43 O.R. (3d) 485 (C.A.), Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226, Lombardi v. Mehnert, 2008 ONCJ 164, Ojeikere v. Ojeikere, 2018 ONCA 372, Zafar v. Azeem, 2024 ONCA 15, Housen v. Nikolaisen, 2002 SCC 33, H.M.B. Holdings Limited v. Antigua and Barbuda, 2022 ONCA 630, Spencer v. The Queen, [1985] 2 S.C.R. 278, Morguard Investments Ltd. v. Savoye, [1990] 3 SCR 1077, King v. Drabinsky, 2008 ONCA 566, Geliedan v. Rawdah, 2020 ONCA 254, A.M.R.I. v. K.E.R., 2011 ONCA 417, A.A. v. Z.S.M., 2025 ONCA 283

Short Civil Decisions

Yenovkian v. Shirtliff-Hinds Professional Corporation, 2026 ONCA 588

Keywords: Civil Procedure, Security for Costs, Stay of Appeal, Out-of-Province Resident, Rules of Civil Procedure, rr. 61.06(1)(a)-(c)

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2026 ONCA 590

Keywords: Motions, Delay, Real Property, Leases, Specific Performance, Settlement Agreement, Vesting Order, Equitable Relief, Set-Off, Costs

CIVIL DECISIONS

Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586

[Miller, Zarnett, and Madsen JJ.A.]

Counsel:

M. Mohamed, K.C., J.G. Bell, and D.A. Fenton, for the appellants

J. Adair and R. Trenker, for the respondent S.K.S. Al Jabri

J. Larry, H. Bruckner, and G. Hoaken, for the respondent M.S. KH Al Jabri

Keywords: Torts, Motions, Fraud, Fresh Evidence, Privilege, Presumption of Privilege, Solicitor-Client Privilege, Scope, Exceptions, Crime-Fraud Exception, Administrative Records, Criminal Law, Court Orders, Breach of Court Orders,  Mareva Order, Norwich Order, Trust Ledgers, Bank Statements, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Canadian Charter of Rights and Freedoms, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), Law Society of Ontario, By-Law 9, s. 18, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, Kaiser (Re), 2012 ONCA 838, Housen v. Nikolaisen, 2002 SCC 33, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, R. v. McClure, 2001 SCC 14, R. v. Gruenke, [1991] 3 S.C.R. 263, Smith v. Jones, [1999] 1 S.C.R. 455, Solosky v. The Queen, [1980] 1 S.C.R. 821, Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209, 2002 SCC 61, Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, S.E.C. v. M.P., 2023 ONCA 821, Maranda v. Richer, 2003 SCC 67, Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, [2003] O.T.C. 7 (Ont. S.C.), R. v. Campbell, [1999] 1 S.C.R. 565, Markson v. MBNA Canada Bank, 2011 ONSC 871, Industrial Alliance Securities Inc. v. Kunicyn, 2020 ONSC 3393, O’Rourke v. Darbishire, [1920] A.C. 581, R. v. Swearengen (2003), 68 O.R. (3d) 24 (S.C.), Sperry Corp. v. John Deere Ltd. (1984), 82 C.P.R. (2d) 1, Silverman v. Morresi (1982), 28 C.P.C. 239, Canbook Distribution Corp. v. Borins (1999), 7 C.B.R. (4th) 121, Re Goodman and Carr et al. v. Minister of National Revenue (1968), 2 O.R. 814, Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, 2008 CanLII 63181, Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, Al Sadeq v. Dechert, [2024] E.W.C.A. Civ. 28, R. v. Henry, 2005 SCC 76, James Estate (Re), 2024 ONCA 623, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. A.B., 2014 NLCA 8, Wigmore on Evidence, vol. 8 (Boston: Little, Brown and Company, 1961), David M. Paciocco, Lee Stuesser & Palma Paciocco, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), “The Future Crime or Tort Exception to Communications Privileges” (1964) 77 Harv. L. Rev. 730, Adam Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada Page: 41 Inc., 2014)

facts:

In 2021 the appellants, private corporations established and funded to pursue counterterrorism activities in the Kingdom of Saudi Arabia, commenced civil proceedings against the respondent S.K. Al Jabri (“S.K.A.J.”), alleging that between 2008 and 2017, he abused his authority as a former high-ranking Saudi Arabian government official to siphon money from the appellants to himself or his son, the respondent M.S. KH Al Jabri (“M.S.A.J.”). The respondents denied the allegations, contending that any funds S.K.A.J. accessed from the appellants were taken legitimately for state-sanctioned counterterrorism activities.

A Mareva injunction was granted against S.K.A.J. and M.S.A.J. to restrain them and any other person from dealing with any assets in either of their names or in corporations for which either had any interest (the “Mareva Orders”). A Norwich order was also granted, requiring certain foreign and Canadian financial institutions to produce documents to the appellants, including bank records pertaining to the respondents (the “Norwich Order”).

The appellants obtained unredacted copies of the respondents’ Canadian bank statements, but the foreign bank statements produced by the respondents were redacted to delete references to transactions with law firms. The appellants then brought a motion, seeking an order requiring the respondents to produce: (1) trust ledgers from any law firm representing the respondents worldwide, disclosing all transactions, legal and non-legal, from 2017 to present date; and (2) unredacted copies of foreign bank statements.

The appellants’ motion was dismissed on the basis that a law firm’s administrative records are presumptively privileged, the test for rebutting the presumption outlined in Kaiser (Re) had not been met, and that the crime-fraud exception to solicitor-client privilege did not apply to civil fraud.

The Divisional Court largely upheld the decision of the motion judge, also finding that the trust ledgers were presumptively privileged and that the presumption was not rebutted. The Divisional Court agreed with the motion judge that the crime-fraud exception only applies to criminal communications and that even if the exception could apply in such a case, the appellants failed to establish a prima facie case for it. However, the Divisional Court allowed one aspect of the appellants’ appeal: it held that the motion judge erred in applying the presumption of privilege to the respondents’ bank statements, as the presumption only applied to lawyers’ records.

issues:

1. Is the appeal moot because some of the information has been obtained by the appellants through other disclosures in the litigation?

2. Did the Divisional Court err by:

a) treating lawyers’ trust ledgers as presumptively privileged;

b) in finding the presumption was not rebutted; and

c) in finding that the crime-fraud exception did not apply?

3. Should the appellants and/or the respondents be granted leave to introduce fresh evidence on appeal?

4. Did the Divisional Court err in remitting the privilege claim regarding unredacted bank statements to the motion judge, rather than deciding that no privilege could apply at all?

holding:

Appeal dismissed.

reasoning:

1. Is the appeal moot because some of the information has been obtained by the appellants through other disclosures in the litigation?

No.

The Court rejected the respondents’ argument that the appeal was moot as a result of the production to the appellants of unredacted versions of the foreign bank statements and certain particulars of funds being held by law firms, pursuant to a consent order. The Court held that the consent order did not resolve the privilege issues that were the subject of the appeal.

2. Did the Divisional Court err in treating lawyers’ trust ledgers as presumptively privileged, in finding the presumption was not rebutted, and in finding that the crime-fraud exception did not apply?

No.

The Court emphasized the importance of solicitor-client privilege to the Canadian judicial system and as a fundamental civil and legal right of the client. Unless it was waived by the client or an exception applies, solicitor-client privilege permanently protects from disclosure any and all oral or written communication if: (i) the client sought to obtain legal advice of any kind from the lawyer; (ii) the communication related to that purpose; and (iii) the communication was made in confidence. The Court further cited Descôteaux et al. v. Mierzwinski, stating that solicitor-client privilege applies to “all communications made with a view to obtaining legal advice”, including those that “deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem”. The scope of the privilege will be interpreted as broadly, and the scope of any exceptions or exclusions, as narrowly as possible to ensure that the privilege itself remains robust.

a) Are the lawyers’ trust ledgers presumptively privileged?

Yes.

The Court, in finding that a lawyer’s trust ledgers were presumptively privileged, relied on the Supreme Court’s decision in Maranda v. Richer and Chambre des notaires, which established that lawyers’ administrative records, including accounting records, are subject to a rebuttable presumption of solicitor-client privilege because such records may contain information which, though neutral on its face, could be used to deduce privileged information.

The appellants argued that the presumption should not apply on a contested motion for production in a civil case, where the client may make its case for privilege before turning over the document. The Court rejected this argument, referring to Chambre des notaires, where the Supreme Court expressed that the reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is high, regardless of whether the question arises in a civil, administrative or criminal context.

b) Was the presumption rebutted?

No.

The Court reiterated the test for rebutting the presumption of privilege established in Kaiser (Re): the presumption may be rebutted by evidence showing that (a) there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or (b) the requested information is not linked to the merits of the case and its disclosure would not prejudice the client. The Court upheld the motion judge’s finding that the appellants had not rebutted the presumption, stating that since the findings were of mixed fact and law, deference was owed to the motion judge’s conclusion.

The Court also rejected the appellants’ argument that the analysis of the courts below was flawed because treating information about who is paying the respondents’ legal fees as privileged in a case where Mareva Orders have been made is inconsistent with the requirements placed on a party subject to such an order when they move to vary it, for example, to obtain permission to access frozen funds to pay expenses. The Court held that what a party might have to disclose to obtain a discretionary exercise of the court’s authority to vary an order does not affect whether the information is privileged to start with, which was the issue the motion judge and the Divisional Court had to address. The Court found that it was impermissible for the appellant to reason backward from a hypothetical waiver to the proposition that privilege never existed.

c) Did the crime-fraud exception apply?

The Court stressed that the crime-fraud exception to solicitor-client privilege, where communications between the lawyer and client are criminal or for the purpose of facilitating a crime, is a rare exception. The Court set out four preconditions that must be shown before the exception would apply: (i) it does not encompass good faith legal advice; (ii) the client must be seeking to advance conduct which is clearly wrong and which it knows or should know is unlawful; (iii) the communications must be about future conduct; and (iv) the party asserting that the exception applies must demonstrate a prima facie case of a communication that falls within the exception.

The Divisional Court heavily emphasized the narrow language used in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, where the Supreme Court described the crime-fraud exception as attaching “to communications criminal in themselves or intended to further criminal purposes”. The appellants argued that Blood Tribe’s limitation of the exception to criminal conduct was inconsistent with earlier Supreme Court jurisprudence, such as Solosky v. The Queen, Descôteaux, and R. v. Campbell, where the court referenced “crime or fraud” when describing the exception. The appellants also argued in the alternative that the scope of the exception was unsettled in Canadian law and that developments in other jurisdictions and sound policy lead to the conclusion that the exception should apply to unlawful conduct that is not criminal.

The Court disagreed, finding that Blood Tribe is not inconsistent with prior authority. The Court concluded that nothing in the Supreme Court’s jurisprudence suggested that one description was intended to be broader than the other, and that it is unlikely the reference to crime or fraud were intended to open the exception up to a wide array of unlawful conduct.

The Court went on to hold that, as long as the other preconditions to the application of the crime-fraud exception are met, communications that are intended to facilitate a future breach of a court order would come within the exception as communications that are intended to further a criminal purpose.

The Court further emphasized that the applicability of the exception depends on the nature and purpose of the communication between the lawyer and client, not the type of proceeding in which privilege is claimed. Therefore, interpreting the scope of the exception was unnecessary for the appeal at bar.

In the result, the Court upheld the Divisional Court’s finding that the appellants had not made out the test for the crime-fraud exception, even if it could be applicable where the action was for civil fraud or a breach o a court order was alleged in a civil action.

3. Should the appellants and respondents be granted leave to introduce fresh evidence on the appeal?

No.

The Court, citing James Estate (Re) and Palmer v. The Queen, reiterated that the governing test to admit fresh evidence required the moving party to show that the proposed evidence: (i) is credible, in that it is reasonably capable of belief; (ii) is relevant to a decisive issue; (iii) could not have been, through due diligence, adduced at trial (or the motion); and (iv) if admitted and believed, it could have been expected to have affected the underlying result. The Court determined that the appellants had failed to show that the fresh evidence could have affected the result in the Divisional Court, and dismissed both the appellants’ and respondents’ motions.

4. Did the Divisional Court err in remitting the privilege claim regarding unredacted bank statements to the motion judge, rather than deciding that no privilege could apply at all?

No.

The appellants argued that bank statements cannot be privileged because financial institutions are not part of the solicitor-client relationship and, where required by law, banks disclose transactions recorded in bank statements. Additionally, because bank statements only record the date and quantum of funds transferred, they cannot reveal solicitor-client communications. The Court held that for the appellants to succeed in those arguments, there would have to be no arguable case that privilege could apply to entries that show payments to lawyers, which the appellants had not demonstrated.

In the result, the Court held that it was appropriate to remit the privilege determination relating to the bank statements back to the motion judge.

M. v. E., 2026 ONCA 584

[Thorburn, Madsen, and Rahman JJ.A.]

Counsel:

M.J. Stangarone, T. Guo, and N. Clyde, for the appellant

A. Macri and F. Akhter, for the respondent

C. Tempesta and D. Shuhaibar, for the Office of the Children’s Lawyer

Keywords: Family Law, International Law, Comity, Child Protection, Best Interests of the Child, Parenting, Relocation, Return Order, Objection of Child, Domestic Violence, International Child Abduction, Habitual Residence, Grave Risk of Harm, Mitigation, Fresh Evidence on Appeal, Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, arts. 12, 13, 20, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Immigration and Refugee Protection Act, SC 2001 c. 27, s. 101(1)(b.1), Children’s Law Reform Act, R.S.O. 1990, c. C.12, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Greblunias, 2022 SCC 22, M.A.A. v. D.E.M.E., 2020 ONCA 486, Ludwig v. Ludwig, 2019 ONCA 680, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, Thomson v. Thomson, [1994] 3 S.C.R. 551, Rayo Jabbaz v. Rolim Mouammar (2003), 226 DLR (4th) 494, F. v. N., 2022 SCC 51, Husid v. Daviau, 2012 ONCA 655, Kirby v. Woods, 2025 ONCA 601, Pollastro v. Pollastro, (1999), 43 O.R. (3d) 485 (C.A.), Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226, Lombardi v. Mehnert, 2008 ONCJ 164, Ojeikere v. Ojeikere, 2018 ONCA 372, Zafar v. Azeem, 2024 ONCA 15, Housen v. Nikolaisen, 2002 SCC 33, H.M.B. Holdings Limited v. Antigua and Barbuda, 2022 ONCA 630, Spencer v. The Queen, [1985] 2 S.C.R. 278, Morguard Investments Ltd. v. Savoye, [1990] 3 SCR 1077, King v. Drabinsky, 2008 ONCA 566, Geliedan v. Rawdah, 2020 ONCA 254, A.M.R.I. v. K.E.R., 2011 ONCA 417, A.A. v. Z.S.M., 2025 ONCA 283

facts:

The appeal concerned a minor (the “child”) born Rabat, Morocco, in 2020. The parties were married in Morocco in January 2017 and divorced by consent on July 20, 2022. The child had been in the primary physical care of the appellant, the mother, since the parties separated. A divorce judgment later that year granted the appellant physical custody and the respondent father parenting time. By operation of Moroccan law, the respondent retained the rights of legal guardianship. The appellant required the father’s consent for key administrative actions unless a court order stated otherwise.

The parties experienced considerable conflict after separation. The respondent was convicted of assaulting the child during a parenting visit in August to September 2023. In September 2025, the Court of First Instance in Rabat convicted him of “misdemeanour of assault and violence against a child under 15” pursuant to the Moroccan Criminal Code. The respondent received a one-month suspended sentence and a fine, which he appealed.

The appellant left Morocco with the child without the respondent’s consent on March 19, 2025. The appellant was granted permanent residency upon arrival in Canada. The respondent obtained a “chasing order” in Morocco dated May 19, 2025, revoking the appellant’s custody and granting all rights relating to the child to the respondent. A trial proceeded in Ontario, with the evidence of all three experts at trial was that the appellant’s unmarried cohabitation with her partner in Canada would make it extremely difficult, if not impossible, for her to return to Morocco and resume parenting of the child. The application judge also found that the child’s safety would not rise to grave risk or intolerable situation if she were separated from the appellant.

The application judge found that Morocco was the child’s habitual residence, that none of the exceptions to mandatory return applied, and ordered the child’s return to Morocco subject to undertakings by the respondent. The appellant mother appealed, while the respondent sought dismissal and opposed the admission of fresh evidence.

issues:

1. Should the proposed fresh evidence be admitted on appeal?

2. Did the application judge err in determining that Morocco is the child’s habitual residence?

3. Did the application judge misapply the legal principles related to the grave risk of harm exception?

a) Did the application judge err in her determination that Morocco applies a best interests framework to the assessment of parenting issues?

b) Did the application judge err in her assessment of gender-based differentiation in Moroccan law?

c) Did the application judge err in her treatment of the appellant’s allegations of family violence?

d) Did the application judge err in her treatment of the respondent’s criminal conviction for an assault directly on the child?

e) Did the application judge err in her assessment of the impact of the child’s separation from her primary caregiver?

4. Did the application judge fail to provide adequate reasons for not deferring to the child’s objection to return?

5. Did the application judge err in ordering costs against the appellant?

holding:

Appeal allowed.

reasoning:

1. Yes.

The Court, citing Barendregt v. Greblunias, held that Palmer v. The Queen test for admitting fresh evidence was sufficiently flexible to recognize that it was in the interests of justice for a court to have more context before rendering a decision that could profoundly alter the course of a child’s life. When the welfare of a child is at stake, the Court favoured a flexible approach to the admission of fresh evidence, consistent with the need for up-to-date information.

2. No.

The Court upheld the application judge’s conclusion that the focal point of the child’s life was Morocco. The application judge appropriately used a “hybrid approach” to determine the child’s habitual residence and accurately determined the focal point of the child’s life immediately before the removal. This approach also set out the applicable law to carefully consider all of the child’s relevant links and circumstances with her mother in Canada, as well as her school attendance and participation in swimming and skating lessons.

3. Yes.

The Court ultimately held that the application judge erred by failing to give sufficient weight to the father’s criminal conviction in conjunction with the child’s near-certain separation from her primary caregiver, as well as the lack of any prospective safety plan for the child. Notwithstanding the other factors in the application judge’s assessment, her determination of a grave risk of harm required a prospective and cumulative assessment, which was not carried out.

a) No.

The Court deferred to the application judge’s assessment of the expert evidence and conclusion that Moroccan family courts apply a best interest framework to parenting decisions. Morocco is a signatory to the Hague Convention. As the Court previously stated in Zafar v. Azeem, when dealing with signatories, courts take comfort from the fact that they, like Canada, are committed to making decisions based on the best interests of children. Following F. v. N., inconsistencies between local and foreign regimes will usually not amount to serious harm if the “best interests of the child” principle remains the paramount consideration. The application judge reviewed the expert evidence thoroughly and concluded that Moroccan law has as its paramount principle the best interests of the child.

b) No.

The Court found no basis to interfere with the application judge. While the application judge noted differences between the laws governing parenting in Morocco and Ontario, including Morocco’s gender-based presumptions, she concluded that the application of Moroccan law would not pose a grave risk to the child in this case.

c) No.

The court found that the application judge was alive to the appellant’s allegations of intimate partner violence and coercive controlling behaviour. The application judge set out in detail the appellant’s evidence, including allegations of unilateral decision-making, restriction of movement, social and family isolation, interference with education and career, financial control, surveillance, and regulation of appearance. However, the application judge found that while there may have been some form of domestic violence during the marriage, she was not prepared to accept the extent of the mother’s allegations. Ultimately, she based her conclusion largely on credibility findings. As the application judge had the benefit of extensive documentation and of hearing from the parties directly, the Court held that her findings of fact and credibility were entitled to deference on appeal.

d) and e) Yes.

The Court held that the application judge’s erred in her assessment of the relevance of the respondent’s criminal conviction for assault against the child in he assessment of grave risk of harm.

The Court held that in cases involving a conviction for assault against a child, the court should: (1) start from the position of comity and respect for the conviction, (2) assess risk of harm prospectively and cumulatively to determine whether it reaches the “grave risk” threshold, and (3) give due consideration to evidence of mitigation or safety measures.

The Court held that the application judge erred by failing to consider the respondent’s criminal conviction in conjunction with the likelihood of the child’s separation from the appellant, and the lack of any prospective safety plan for the child. In its consideration of mitigation, the Court noted that the respondent had taken a four-hour anger management course and two short parenting courses, all completed days before swearing his affidavit for trial. However, he did not disclose the then-pending criminal charge in his Form 35.1 affidavit, did not advise the Moroccan family court of his charges when seeking sole parenting rights, described the assault as resulting in a “minor baseless bruise” in closing submissions, and did not mention or address the conviction in his written submissions on appeal. The paternal relatives who offered to assist the respondent with the child in Morocco lived some distance away, and the aunt, who was also proposed to assist with caring for the child, did not accept that the assault took place.

The Court concluded that returning the child to the respondent’s sole care, combined with the significant barriers to the appellant’s return to Morocco and the absence of mitigating factors, would expose the child to a grave risk of harm. The Court set aside the return order and declared that Ontario has jurisdiction under s. 23 of the Children’s Law Reform Act (CLRA) to determine decision-making and parenting time. The Court declined to address the impact of the child’s pending refugee claim given the grave risk conclusion.

4. No.

The Court held that Article 13 of the Hague Convention permits, but does not require, a court to refuse to order the return of a child if it finds that the child objects and has attained an age and degree of maturity at which it is appropriate to take account of her views. The Court held that the application judge meaningfully considered the child’s views, accepted that her true wishes were to stay with her mother in Canada, and found no evidence that either parent had influenced her. However, the application judge found it inappropriate to implement the child’s views given her age and degree of maturity. The application judge found no evidence that the child was particularly mature beyond her young age and expressed concern that the child did not fully appreciate the future consequences of a decision about returning to Morocco. This did not impose additional requirements on the child but recognized the maturity threshold articulated in the exception.

5. Yes.

The appeal having been allowed, the Court awarded costs of the appeal to the mother in the amount of $15,000 and made no costs order at first instance.

SHORT CIVIL DECISIONS

Yenovkian v. Shirtliff-Hinds Professional Corporation, 2026 ONCA 588

[Miller, Wilson, and Madsen JJ.A.]

Counsel:

V. Y., acting in person

R.B. Macdonald, for the respondent/responding party

Keywords: Civil Procedure, Security for Costs, Stay of Appeal, Out-of-Province Resident, Rules of Civil Procedure, rr. 61.06(1)(a)-(c)

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2026 ONCA 590

[Miller, Wilson, and Madsen JJ.A.]

Counsel:

M.L. Solomon, for the moving party/ responding party by way of cross-motion

D. Fogel, for the responding party/ moving party by way of cross motion

Keywords: Motions, Delay, Real Property, Leases, Specific Performance, Settlement Agreement, Vesting Order, Equitable Relief, Set-Off, Costs

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.