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Lindsey Love Forester

SCC upholds Ontario court order to return wrongly retained children to Dubai in groundbreaking case

Friday, December 02, 2022 @ 6:28 PM | By Cristin Schmitz

Last Updated: Friday, December 02, 2022 @ 6:59 PM

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Cautioning that Canada must not become “a haven” for international parental child abductions in non-Hague Convention cases, the Supreme Court of Canada has 5-4 affirmed an Ontario court’s refusal to assume jurisdiction over an international custody dispute between an Ontario-based mother and Dubai-based father, and upheld the lower court’s order under s. 40 of the Children’s Law Reform Act (CLRA) to send two young children in Ontario back to their habitual residence in Dubai, where the United Arab Emirates (UAE) courts would have jurisdiction to determine their custody.

Counsel told The Lawyer’s Daily the Supreme Court’s judgment Dec. 2 determining jurisdiction as between Ontario and the UAE marks the first time the Supreme Court has provided guidance on how to analyze and apply the “serious harm” threshold contained in s. 23 of the CLRA (a provision also reflected in other provincial jurisdictions) which applies when the foreign jurisdiction is not a signatory to the Convention on the Civil Aspects of International Child Abduction: F. v .N., 2022 SCC 51.

Canada is a signatory to the Hague Convention, the international treaty which applies to international parental child abductions and to legal efforts by “left-behind” parents to have their wrongly removed or wrongly retained children returned to the children’s habitual residence in the foreign jurisdiction.

However, where a foreign country, such as the UAE, is not a Convention signatory, the CLRA provides that, but for exceptional circumstances, Ontario courts will refrain from exercising jurisdiction and leave the merits of custody to be determined by a court in the foreign jurisdiction with which the child has a closer connection.

In the appeal heard by the Supreme Court of Canada last April, the judges were focused on an exception to the general rule (s. 23 of the CLRA) which states that the domestic court can exercise jurisdiction to make a parenting order if the child is physically present in Ontario and, on a balance of probabilities, the court is convinced that the child would suffer “serious harm” if removed from the province.

What the “serious harm” threshold means, and how to apply it, were the key questions at the Supreme Court of Canada.

All nine judges expressly agreed with Justice Nicholas Kasirer’s exposition of the applicable legal principles, but they split 5-4 on how those principles applied in the case before the court involving 3-year-old and 6-year-old Canadians whose Pakistani-Canadian mother/primary-caregiver brought them to Ontario in June 2020 from their Dubai habitual residence to visit with her family, with their Pakistani father’s consent. Soon after she refused to take the children back, alleging they would experience serious harm if returned to Dubai.

Lindsey Love-Forester, Lerners Lawyers

Lindsey Love-Forester, Lerners Lawyers

“The Supreme Court makes clear that wrongful child abductions and forum shopping are not countenanced in Canadian courts,” said Lindsey Love-Forester of Toronto’s Lerners Lawyers, speaking on behalf also of Bryan Smith and Earl Cherniak who also represented the respondent father.

“Our client is gratified by the result and will be seeking an early return of the children to Dubai in accordance with the direction of the court,” she said.

(Counsel for the appellant mother did not immediately respond to a request for comment.)

Love-Forester told The Lawyer’s Daily the implications of the Supreme Court’s ruling on the law relating to international parenting disputes, where the Hague Convention does not apply, are important.

“The decision makes clear that the analysis under s. 23 of the CLRA, which is an exceptional jurisdiction section, does not amount to a comprehensive comparison of the child's life in the two jurisdictions, or a broad-based best interest test as is conducted in Ontario for a parenting order on the merits,” she explained.

“Where applications for a return to a non-Hague Convention country are made under s. 40, courts are deciding, fundamentally, which court will determine custody, not custody itself, and the best-interest-of-the-child test must be applied in that context,” Love-Forester explained.

She noted that the “taking” parent faces a demanding burden to establish anticipated serious harm to the children if they are returned. “It is not enough to conclude that the return of the children would have a negative impact on them,” she explained, pointing to para. 69 of the majority judgment.

As well, the list of factors to be considered in assessing whether the serious harm threshold is met is not closed, she said.

In that regard, the court rejected the argument that separating young children from their primary caregiver in itself rises to serious harm. “There must be regard to individualized circumstances that raise that to the level of serious harm,” Love-Forester advised. “Mitigating factors, such as the return to a prior existing caregiver or a capable left-behind parent in a safe and familiar environment, mean the threshold of serious harm may not be met,” she elaborated. Also, “undertakings by the left-behind parent to mitigate risk of serious harm are an important consideration.”

Love-Forester noted that both the majority and minority judgments emphasize that in deciding jurisdictional issues under s. 40 of the CLRA, including the risk of serious harm analysis under s. 23, triers of fact are called upon to decide highly individualized and fact-specific questions; those determinations are entitled to deference.

The judgment should help focus the evidence and findings required at, and flowing from, ss. 23 and 40 at the hearing, she said.

“The majority judgment makes clear that these are difficult, factually based decisions, and that trial judges, while considering the best interests of children, must apply those considerations having regard to the objectives of the CLRA which include the discouragement of child abduction and ensuring that ultimate parenting orders and parenting determinations are made in the place with which the child is most closely connected, except in exceptional circumstances.” 

Nicholas Bala, Queen’s University

Nicholas Bala, Queen’s University

Queen’s University law professor Nicholas Bala, an authority on children, youth and families in the justice system, said the high standard set by the court for “serious harm” sends a message that “Canada is not to be a haven for child abductors.”

Nor as the dissent underscores, he said, “are we going to turn our backs on ... women who are fleeing violence, or [legal] regimes that clearly are not based on the best interests of children. So it’s a question of balancing.”

Bala said the number of international custody disputes has been growing, given people’s increased mobility, and determining them is often challenging. “Courts are always making forward-looking family law decisions in the face of uncertainty,” he remarked.

As a family law professor, Bala highlighted the court’s affirmation that, “as a general rule,” children’s best interests are served by contact with both parents, and a stable and familiar home environment.

He also pointed to the court’s emphasis on deferring to findings of fact in trial decisions. “One of the big concerns here is this case has been dragged on for years,” he said. Understandably, the children’s return to Dubai will therefore be more stressful than if they had gone back at an earlier stage, if that is where they were going to end up, he said.

Farrah Hudani, Burrison Hudani Doris LLP

Farrah Hudani, Burrison Hudani Doris LLP

Farrah Hudani of Toronto’s Burrison Hudani Doris LLP, who with Jessica Luscombe represented the intervener Defence for Children International – Canada, said she is “somewhat disappointed” by the majority’s decision, in particular with its treatment of the interplay between the principle that a child’s best interests take precedence in matters affecting them, and jurisdictional and removal order determinations under ss. 23 and 40 of the CLRA.

In Hudani’s view, “a child’s right to have his or her best interests assessed and taken into account, which is a fundamental value of the Convention on the Rights of the Child and Canadian Jurisprudence, took a back seat today. As the Honourable Justice Jamal eloquently stated, the ‘serious harm’ analysis should focus on the harm caused to the child, and not on factors that may help a child after they have been harmed. The majority decision fails to do that.”

From a child’s perspective, Hudani suggested it is problematic that “you’re putting these children in a situation where they may be without their mother, or where their mother might not have residency status or civil rights in terms of custody and access.”

Without commenting on the outcome of the case at bar, Paul-Erik Veel of Toronto’s Lenczner Slaght LLP said the law set out by the court is generally good for children.

Paul-Erik Veel, Lenczner Slaght LLP

Paul-Erik Veel, Lenczner Slaght LLP

“The decision tries to strike a balance between wanting to dissuade child abduction — which is generally not in the best interests of children — while recognizing that there are many different ways that removing a child from Ontario can cause serious harm,” explained Veel, who represented the intervener Canadian Council of Muslim Women.

“The main practical takeaway for counsel from this case is that when looking at serious harm, almost anything can be considered as a matter of law, but the evidence to establish that harm will be important,” he advised. “The disagreement between the majority and the dissent isn’t primarily on the law — it’s on whether the trial judge made palpable and overriding factual errors.”

Veel said the court’s analysis makes it clear that what constitutes “serious harm” is a highly individualized analysis that must consider all possible sources of harm to the child. “While serious harm is a high threshold and is different from the ‘best interests of the child’ analysis,” he explained, “the court makes clear that a wide variety of circumstances can give risk to a risk of serious harm.”

He said Ontario courts had previously looked at four particular factors from Ojeikere v. Ojeikere, 2018 ONCA 372. However, the Supreme Court noted that while those factors may be “useful guidelines,” they do not encompass the wide variety of circumstances in which a risk of serious harm exists.”

Veel highlighted the importance of the court’s discussion of cases where a child who was wrongly removed or retained has a habitual residence in a country with very different laws from those in Canada. “The Supreme Court’s decision recognizes that it’s necessary to consider how foreign family law would apply to a child to determine whether they would suffer serious harm if removed,” he said. “If the foreign court decides issues relating to the child’s parenting using the framework of the best interests of the child, then there is no impediment to removal. However, the court then goes on to recognize that there may be circumstances where foreign law itself is so different from our conception of appropriate family law norms that the child would suffer serious harms if subject to that jurisdiction’s laws.”

He pointed to para. 90, where the majority reiterates that “‘equal treatment of parents, irrespective of their gender, is a fundamental precept of family law in Ontario’.”

The Supreme Court goes on to specifically recognize that “in a case where children are to be returned to a jurisdiction where their best interests would be superseded by an inflexible rule that invariably assigns custody or decision‑making powers on the basis of gender, the foreign law could be the source of serious harm,”  he said.

Veel said para. 90 is critical.“The court is making clear that gender equality is important when looking at the best interests of the child,” he explained. “The Supreme Court is saying that Ontario courts need to seriously look at whether foreign laws are discriminatory in such a way that could cause serious harm to the child.”

And although the appellant mother seeking to invoke Ontario’s jurisdiction did not succeed in establishing serious harm, the court accepted many legal arguments that the appellant and the interveners advanced, he stressed.

“In holding that ‘serious harm’ is an individualized inquiry, which can take into account discrimination in the foreign legal system to which the child may be removed, the court has set out a broad test for serious harm that parents seeking to invoke the jurisdiction of the Ontario courts can rely on,” Veel said.

Justice Nicholas Kasirer

Justice Nicholas Kasirer

In the majority judgment, which sets out the court’s unanimous views on the applicable legal principles, Justice Kasirer emphasized “at the preliminary stage of deciding jurisdiction, it is not the role of the [Ontario] judge to conduct a broad-based best interests inquiry, as they would on the merits of a custody application.”

A broad‑based best interests analysis under s.23 “would ultimately undermine the purpose of the serious harm exception, that is, to ensure decisions on the merits are made by the appropriate authority in accordance with the best interests of the child,” Justice Kasirer explained.

“In the instant case, the trial judge did not commit a palpable and overriding error when he concluded that the children would not suffer serious harm if they were returned to Dubai,” the majority held. “He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm.”

Writing in dissent, Justice Mahmud Jamal (backed by Karakatsanis, Brown and Martin JJ.)  said the minority would allow the mother’s appeal because she met her burden of establishing serious harm.

The trial judge made “material errors” in assessing the likelihood and severity of the anticipated harm, considering all the relevant factors, that “displace the appellate deference generally afforded to discretionary determinations,” Justice Jamal held.

“The trial judge misapprehended the evidence relating to the likelihood that the children would suffer harm if they are separated from their mother and returned to the father,” he explained. “This likelihood turned on the mother’s claim that she will not return to Dubai. The trial judge declared that he was ‘not sure’ that he believed the mother’s claim of non-return and assigned ‘very little weight’ (para. 368) to it because of inconsistencies in her account of tangential and largely irrelevant matters,” he wrote. “In relying only on these inconsistencies, the trial judge ignored several crucial relevant considerations supporting the mother’s claim, thereby tainting his conclusion on the likelihood of the anticipated harm.”

The minority rejected “any suggestion that the mother has ‘self-engineered’ her claim of serious harm by steadfastly refusing to return to Dubai.”

“As my colleague acknowledges, a parent can legitimately refuse to return to the place of habitual residence for a ‘substantial reason,’ ” Justice Jamal wrote. “The mother provided reasonable and legitimate reasons for refusing to return to Dubai. Her precarious residency status in Dubai, her bases for refusing the father’s ‘with prejudice’ settlement offer purporting to provide her with benefits if she returns, and her legitimate concerns about living under the laws of the UAE as a woman cumulatively rebut any suggestion of self-engineered harm.”

Justice Jamal held that the trial judge also misapprehended the harm to the children by not giving effect to the trial judge’s own factual findings about the children, including with respect to the parents’ respective roles in caregiving, in light of the jurisprudence and the expert evidence showing that children generally suffer harm when separated from their primary caregiver.

“I disagree with [the majority’s] suggestion that the trial judge determined that the children would not suffer serious harm by relying on the mitigating effects of alternate caregivers,” Justice Jamal said. “The proposed alternate caregivers are the children’s former nanny in Dubai and two of the father’s relatives currently living in Pakistan and the United States, one of whom has never met the children. The trial judge did not address these factors in his s. 23 analysis, and in any event, they do not adequately mitigate the obvious harm that the children would suffer if they are separated from their mother.”

Justice Kasirer rejected the appellant mother’s characterization of UAE law as an inherent source of serious harm to the children. “Expert evidence accepted by the trial judge led him to conclude that the best interests principle would apply to the ultimate custody decision before a UAE court,” Justice Kasirer said.

 As Ontario Court of Appeal Justice William Hourigan observed for the majority below, who dismissed the mother’s appeal, 2021 ONCA 614, “’the rather provincial view that unless Ontario law is applied, children will suffer serious harm’ could have the unwitting effect of turning Ontario into a haven for child abduction,” Justice Kasirer quoted.

“The trial judge was called upon to decide the fact‑specific, highly individualized question as to whether these two children would suffer serious harm if removed from Ontario,” Justice Kasirer explained.

“He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm. Based on expert evidence relating to the differences between Ontario and UAE law, the judge determined the best interests of the two children will be the paramount consideration for determining custody in a UAE court.”

Reasoned Justice Kasirer, “in the absence of a reviewable error, his decision that the serious harm threshold was not met is entitled to deference, as explained by the majority of the Court of Appeal. The custody dispute — undecided here — should be resolved by the courts in the UAE, where the children have their closest connection.”

The majority stressed that the mother’s allegations of serious harm faced by the children if returned to Dubai “do not relate to domestic violence or abuse of any kind, but rather to the risk that the mother, as primary caregiver, will be separated from the children should they be ordered home to Dubai where she has no independent residency status and does not wish to reside. The trial judge was aware of the risk of separation due to the precariousness of the mother’s residency status. In making the return order, the judge took into account undertakings made by the father in a ‘with prejudice’ settlement offer that would alleviate that precariousness and thereby facilitate the mother’s return with the children.”

Justice Kasirer said that the terms of the father‘s previous settlement offer, which were renewed before the Supreme Court, i.e. to help secure her residence status in Dubai, and pledging that she will remain the primary residential parent, that major parenting decisions will be made jointly by the mother and father, and that she would retain custody of the children until they are 18 — whether or not she chooses to remarry — could be made part of an enforceable order in the UAE courts.

In addressing the mother’s argument that the law of the UAE allocates custody and guardianship on the basis of gender in a way incompatible with Ontario law and with determining custody on the merits in accord with the children’s best interests, the majority said a trial judge seized with an application for return to a non‑Hague Convention country must verify that the foreign court would determine custody on the basis of the children’s best interests.

“But that does not mean that the judge tests whether the principle will be applied in exactly the manner in which it would be in Ontario,” Justice Kasirer stipulated, quoting Lady Brenda Hale In re J. (A Child) (Custody Rights: Jurisdiction), [2005] UKHL 40, a non‑Hague Convention case in which a parent requested that their child be returned to Saudi Arabia. Lady Hale wrote in “a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. ... Nowadays we know that there are many routes to a healthy and well-adjusted adulthood. We are not so arrogant as to think that we know best. As such, it is appropriate for a court seized of a return application to recognize that it does not have a ‘monopoly in knowing what is best for children and certainly not in knowing what is best for children who have been growing up in non‑Western cultures’.”

Explained Justice Kasirer, “as long as the ultimate question of custody is determined on the basis of the best interests of the child, the CLRA does not prevent children from being returned to jurisdictions where the law may differ in some respects from that of Ontario. I agree with Hourigan J.A. [below] that it ‘is not enough to point to differences in the law and suggest that a parent may have different rights in a foreign jurisdiction vis-à-vis Ontario’. He further explained that the serious harm test in s. 23 of the CLRA was designed to protect the safety of children and must not be interpreted so as to permit child abduction to become an approved technique for forum‑shopping.”

Nonetheless, “there may be instances where foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the CLRA,” Justice Kasirer acknowledged.

“Drawing the line between what is acceptable and what is not is a delicate exercise. In this case, there is no denying that the expert evidence pointed to gender-based inequalities in UAE law. But, as Hourigan J.A. underscored in his reasons, the proper degree of tolerance for differences between foreign and Ontario law remains defined by the threshold of serious harm.”

Justice Kasirer explained that “the proper approach recognizes that inconsistencies between local and foreign legal regimes will usually not amount to serious harm if the best interests of the child principle remains the paramount consideration in all decisions concerning children. However, if the incompatible rule automatically applies in a manner that supersedes the best interests of the child, this will be a determinative factor in the serious harm analysis, when s. 23 is read in light of s.19(a) of the CLRA.”

Justice Kasirer noted that equal treatment of parents, irrespective of their gender, is a fundamental precept of family law in Ontario and is tied to the application of the best interests of the child in custody matters, as reflected, for example, in s .20(1) of the CLRA.

“As such, in a case where children are to be returned to a jurisdiction where their best interests would be superseded by an inflexible rule that invariably assigns custody or decision‑making powers on the basis of gender, the foreign law could be the source of serious harm and the basis for Ontario to take jurisdiction on the merits pursuant to s. 23 of the CLRA,” Justice Kasirer said.

“Conversely, the risk of harm will be mitigated if the application of the gender‑based rule is not automatic but instead depends on the best interests of the child. In sum, the question for the purpose of s. 23 is whether the best interests of the child remains paramount” in custody determinations in the foreign jurisdiction.

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