If one parent removes a child from their home without the consent of the other parent and takes them to another jurisdiction, that is considered child abduction. Many countries are signatories to the Hague Convention which is an international agreement on how these situations will be treated by the courts. In a recent case decided by the Supreme Court of Canada, F. v N. 2022 SCC 51, the country that the children were taken from was not a signatory to the Hague Convention. However, the Ontario Children’s Law Reform Act s.40 says that except in exceptional circumstances, courts in Canada will refrain from exercising jurisdiction and leave the final decision of where the child should live to the place they were removed from.
The law in British Columbia is very similar to the law in Ontario. The BC Family Law Act at s. 74 also provides that the court should decline jurisdiction except if specific conditions are met, including if the child would suffer serious harm if they were to be returned.
In this case the Supreme Court of Canada was particularly concerned with the impact of allowing Canadian courts to take jurisdiction where there is likely some harm to returning the child to their former home because it would separate them from one parent, but the harm does not rise to the level of “serious harm” as is required by law. Potentially turning Canada into a “Haven” for parents seeking to remove their child from their other parent and home jurisdiction.
“The outcome of this appeal turns on whether the Ontario courts should exercise jurisdiction over the merits of a custody dispute involving an international child abduction.” [F. v N. 2022 SCC 51at para 1]
Background and Context
In this situation, the parents were living in the United Arab Emirates (“UAE”) with their two children, born in 2016 and 2019. The UAE is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The mother is a dual citizen of Pakistan and Canada, and the father is a citizen of Pakistan. They had been living together in Dubai, in the UAE since 2012 when the couple was married. The father had been living and working in Dubai since 2008 after moving from Pakistan, the mother moved from Ontario in 2012. She had not worked consistently while in Dubai does not have an independent residency status, she had been sponsored by the father throughout their marriage. She is the children’s primary caregiver.
In June 2020, the mother took the two children to Ontario to visit her family. The father had provided consent for her to take the children on this trip, they had return tickets for a few weeks later. After the mother and children had been in Ontario for a few weeks the mother informed the father that she would be staying in Ontario with the children and not returning to Dubai.
The father began legal proceedings in Ontario under that province’s Children’s Law Reform Act (“CLRA”) – s. 40, to have the children returned to Dubai with him.
The Mother relied on the same legislation but under s.23 to ask the Ontario Superior Court of Justice to exercise its jurisdiction to decide custody and access. She alleged that the children would suffer serious harm if they returned to Dubai; she claimed that it was in the best interests of the children to remain in Ontario with her.
The father replied that the Ontario Superior Court of Justice should not take up jurisdiction to make a parenting order and that it was in the best interests of the children that all issues of custody and access be decided in the UAE.
The Ontario Superior Court of Justice declined jurisdiction because the trial judge was not satisfied that the children would suffer serious harm if they were returned to the UAE. He concluded the mother had wrongfully retained the children in Ontario it was in the best interests of the children to return to Dubai with or without their mother
The mother appealed this decision.
At the Ontario Court of Appeal, the majority confirmed the return order for the children. The dissenting judge believed that the trial judge had erred in his assessment of ‘serious harm’ and believed the Ontario court should have accepted jurisdiction.
The Ontario Court of Appeal decision was appealed to the Supreme Court of Canada
The Supreme Court of Canada Holding
The Supreme Court of Canada cautioned against Canada becoming a “haven” for child abduction if the court agreed to take jurisdiction over this matter.
The majority found that the trial judge was owed deference in their determination that there was not a risk of serious harm to the children if they were returned. They recognized that there would be some harm; however, it did not rise to the level required for a Canadian court to take jurisdiction. The Supreme Court agreed on the applicable legal principles in this case but not their application. The majority wrote that an appeal court cannot intervene just because they would have weighed the evidence differently.
The Supreme Court justices confirmed that the mother had not succeeded in her argument that the courts in the UAE would not make decisions on parenting arrangements according to the best interests of the child.
The judges concluded that the appeal should be dismissed and an undertaking the father had agreed to prior to the trial with terms for the parenting arrangements to occur in Dubai should be entered as a consent order with the court in the UAE.