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. [2022] 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.
Ontario Superior Court decision
An 11-day trial in Ontario was prompted by a mother who departed Dubai with her two young children, to ostensibly vacation in Ontario with her husband’s consent and return tickets in her pocket. Several weeks after arriving she informed the children’s father that she wished to remain in Ontario where her family resided. The father immediately initiated proceedings under s. 40 of the Children’s Law Reform Act (the Act), arguing that the Ontario court should decline jurisdiction and that the United Arab Emirates should determine all parenting issues. It must be noted that the UAE is not a signatory to The HagueConvention on the Civil Aspects of International Child Abduction.
The mother responded by seeking sole custody, alleging that the children’s father was “ill-tempered and aggressive” and that he be granted limited access to the children. She also argued that s. 40 ofthe Act offended various rights pursuant to the Canadian Charter of Rights and Freedoms.
At the same time, the father filed divorce proceedings in Dubai and was granted a divorce in March 2021. The mother did not participate in the Dubai proceedings. Prior to the Ontario court hearing the father presented a “with prejudice” offer to his wife with undertakings contingent on her returning to Dubai with the children. These included purchasing a home in her name, that the children would live primarily with her, and that major decisions would be made jointly. He suggested a consent order in Dubai and agreed that the mother would be free to contest the conditions offered by him in court in Dubai if she so wished. No response was made to the husband’s proposal.
The issue before the court was whether Ontario should take jurisdiction, and if the court did take jurisdiction, whether to order the return of the children to Dubai.The court found that both were loving and caring parents and while the mother had been the children’s primary caregiver, a nanny had provided substantial assistance. Unfortunately for the mother, the court found that she lacked credibility and did not accept her evidence of incidents of physical aggression on the part of the children’s father, and it discounted her claims of religious discrimination and social isolation.The mother also downplayed the role of the family’s nanny, which contradicted her husband’s evidence. More importantly, while testifying that she supported co-parenting, even joint custody, her draft final order provided “anything but lots of access.”
Finally, the mother’s own expert witness on the law of the UAE was “devastating” to the mother’s case, eviscerating the mother’s evidence that the law in the UAE did not endorse the best interests of the child as the paramount factor in a custody decision. The mother was invited by the court to make submissions on how the father’s undertakings could be incorporated into a court order, but she chose not to do so. The court declined jurisdiction under the provincial legislation and its “parens patriae” authority, ordered the return of the children to Dubai, and made the following findings:
a) There was no evidence of a risk of physical harm if the children were returned to Dubai;
b) There was circumstantial evidence that the children could be at risk of emotional or psychological harm if they returned to Dubai without their mother, but the harm did not satisfy the “serious harm” test;
c) There was no evidence that the court system in Dubai would not apply the best interests ofthe child test;
d) The evidence proffered indicated that the Dubai court would approve and enforce the proposed settlement offer made by the father, if agreed to by the mother.
Ontario Court of Appeal decision
On appeal to the Ontario Court of Appeal, the majority dismissed the appeal and upheld the trial judge’s order that the children be returned to Dubai, with one dissenting judge who concluded that the trial judge had erred in his assessment of “serious harm” and that the Ontario court had jurisdiction to make a parenting order under the Act. The Appeal Court also dismissed the mother’s appeal with respect to the constitutional arguments and the Supreme Court of Canada declined to grant leave on the Charter issues.
This is part one of a two-part series. Part two will examine the Supreme Court of Canada decision.
This article was originally published in Law360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.
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