With very few family law cases receiving leave from our highest court, the Supreme Court of Canada continues to take an interest in relocation and child abduction cases with its latest pronouncement in F. v. N.  S.C.J. 51.
In a 5-4 decision, which indicates the difficulty these cases pose, the court considered a child abduction case concerning a Pakistani citizen living in Dubai with his wife, who was a citizen of Pakistan and Canada. Their two children had Canadian citizenship but had lived in Dubai their entire lives and were taken by their mother to Ontario to visit their maternal grandparents.
Part one of this series examined the Ontario Superior Court and Ontario Court of Appeal decisions. Part two discusses the Supreme Court of Canada decision.
SUPREME COURT DECISION
The Supreme Court noted that in Canada the provinces treat child abduction in non-Hague cases in a manner methodologically comparable to cases under The Hague Convention on the Civil Aspects of International Child Abduction, by declining to decide parental disputes on the merits and by favouring the return of children to the jurisdiction of their habitual residence. Ontario’s provincial legislation presumes that following an abduction, a child’s best interests are aligned with their prompt return to the jurisdiction of habitual residence, unless there are exceptional circumstances.
Focusing on the issue of “serious harm” the court said that it is not enough to argue that returning a child to his or her habitual residence would have a negative impact on the child; it must focus on the particular circumstances of the child, rather than a general assessment of the society to which they are sent back.
While the opportunities, social conditions and economic circumstances of a country may play a role in a custody decision on the merits, these issues are not a basis for finding that a child would suffer “serious harm” if returned. In deciding jurisdiction, judges should not compare the living conditions each country may offer.
The standard for “serious harm” may be usefully compared to the definition in The Hague Convention: “a grave risk of harm or an intolerable situation” provided for in Article 13 (1)(b). However, the language in The Hague Convention is not found in the provincial legislation, and it must be accepted that the provincial legislature intended a less stringent test.
With regards to the mother’s argument that a separation between her and the children constituted “serious harm,” the court said that the analysis must be individualized and that a presumption that separation between parent and child will lead to serious harm would effectively encourage parents to rely on their status as primary caregivers to circumvent due process and risk making Ontario a haven for child abductions.
Because the mother testified that she would not return to Dubai, the court examined whether a parent’s refusal to return created “serious harm” and whether this self-induced behaviour legitimately could be used as the foundation for a finding of “serious harm.” Relying on an English case, the court quoted C. v. C. (Minor: Abduction: Rights of Custody Abroad), (1989) 2 All ER 465 at p. 471:
“An obvious strategy for a primary care abductor is to state that she is not prepared to return with the child and that the consequent separation from her will cause the child psychological harm. Such claims are almost invariably rejected by most courts …
The court also considered whether foreign law could ever be a source of “serious harm,” stating that where foreign laws are profoundly irreconcilable with Ontario law it might support a finding of “serious harm;” however, where the foreign test is the best interests of the child, nuances in the law may not be sufficient to unseat this paramount criteria. In these cases, expert evidence on foreign law will be mandatory.”
The expert testimony revealed that United Arab Emirates (UAE) law provides that a mother’s custodial rights could be terminated if she remarried, or when a male child reaches the age of 11 or a female child turns 13; however, the expert evidence accepted by the trial judge confirmed that these provisions do not automatically apply and are determined through a “best interests of the child” lens.
Finally, while the mother declined to make submissions with respect to the father’s voluntary undertakings such that the trial judge did not make them part of his order, the high court reviewed the undertakings and ordered that they be incorporated into a consent order in the UAE.
Four judges of the court would have allowed the appeal, finding that the trial judge misapprehended the evidence relating to the likelihood the children would suffer “serious harm” if separated from their mother. The dissenters rejected the suggestion that the mother had “self-engineered” her claim of “serious harm” by refusing to return to Dubai, citing legitimate concerns about her status as a woman in the UAE. Those concerns included the lack of serious response by authorities to domestic violence victims; the need for her husband to consent to her obtaining a driver’s licence; her fear that her husband would override her ability to be an equal parent to the children; and her inability to obtain a residency permit as a divorced non-national.
Family law cases on the relocation of children, whether as a result of self-help measures, such as abduction, or pursuant to the provisions on relocation in provincial statutes or the Divorce Act, remain the most challenging cases for parents, counsel and the bench. This 5-4 decision illustrates the complexity and diversity of opinions by learned jurists who apply the same law but with vastly different outcomes.
Lawdiva aka Georgialee Lang
This article was originally published in Law 360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.