Split SCC confirms Ontario court ruling not to take jurisdiction in international child-custody case

It is in the best interests of the children that a couple resolve their custody dispute in the United Arab Emirates, a Supreme Court of Canada majority confirmed today.

In F. v. N., an Ontario court had found that the mother, who is both a Canadian citizen and a Pakistani citizen, wrongfully removed her children from the UAE and brought them to Canada. The children, born in 2016 and 2019, had spent their entire lives in the UAE, a country which is not a party to the Convention on the Civil Aspects of International Child Abduction (Hague Convention).

Under the Children's Law Reform Act, when dealing with a wrongful removal from a country which is not a party to the Hague Convention, an Ontario court can only exercise jurisdiction in exceptional circumstances. Under s. 23 of the CLRA, a court will do so where the child is in Ontario, and the court is persuaded on a balance of probabilities that they would “suffer serious harm” if removed from the province.

The SCC was split 5-4. The majority dismissed the mother’s appeal, finding she failed to show the trial judge had committed a reviewable error, and that the judge was entitled to deference in his finding that the serious-harm threshold had not been met. Justices Richard Wagner, Michael Moldaver, Suzanne Côté, Malcolm Rowe, and Nicholas Kasirer comprised the majority.

In dissent, Justices Andromache Karakatsanis, Russell Brown, Sheilah Martin, and Mahmud Jamal agreed with the majority on the applicable legal principles, but not on their application of the law to the facts. The view of the dissenting judges was that the children would suffer serious harm if removed from Ontario, that the appeal should be allowed, the trial judge’s order set aside, and that a different Ontario Superior Court judge should make a parenting order on an expedited basis.

The decision has important implications for the law around international parenting disputes where the Hague Convention does not apply, say Lindsey Love-Forester and Bryan Smith, who acted for the father and prepared joint comments in response to Canadian Lawyer's questions.

"The Supreme Court makes clear that wrongful child abductions and forum shopping are not countenanced in Canadian courts," say Love-Forester and Smith.

The court also emphasized that jurisdictional decisions under s. 40 of the CLRA, including s. 23's risk-of-serious-harm analyses are "highly individualized and fact-specific questions," which are entitled to deference, they say. They add that the SCC's ruling "should help focus the evidence and findings required at and flowing from s. 23 and s. 40 hearings."

Under s. 40, if a court is satisfied that a child is wrongfully retained in Ontario, the court has the option of making an interim parenting or contact order, as the court considers in the best interests of the child; staying the application, subject to conditions; and ordering the party to return the child to where they have been removed from.

Under s. 23, courts may exercise jurisdiction to "make or vary a parenting order or contact order," where the child is in Ontario, and the court is satisfied, on a balance of probabilities that the child would suffer serious harm if it remained with a parent, returned to a parent, or was removed from Ontario.

"The majority judgment makes clear that these are difficult, factually based decisions," say Love-Forester and Smith. "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."

F. v. N. was the first time the Supreme Court had dealt with an international parenting dispute involving a non-Hague signatory state, say Fareen Jamal, and Fadwa Yehia, who represented the mother, and also responded jointly to Canadian Lawyer's questions.

"In 2018, the SCC considered Hague parenting disputes in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, the implications of which are still being explored," say Jamal and Yehia. "With a global mobile population, these cases are on the rise, and judicial guidance from the apex Court is welcome. But it will take some time to see how the decision is applied in the trenches."

"It reminds judges that serious harm assessments need to be child‑centered, individualized, fact-specific inquiries," they say.

Paul-Erik Veel is a partner at Lenczner Slaght LLP and acted for the Canadian Council of Muslim Women (CCMW), an intervenor in the case.

In F. v. N., the family-law system in the UAE that will determine the children's fate is based on Islamic family law, a family-law system much different than Ontario's, says Veel. The CCMW got involved in the case to stress to the SCC that before the courts agree to send a child back to a foreign jurisdiction, the courts should be mindful of the type of legal system in operation there, and whether that system includes the best-interests-of-the-child test, and whether there may be gender-based discrimination in that jurisdiction, he says.

"From our client's perspective, I think the court has actually helpfully moved the needle in the right direction in favor of sensitivity to the very kinds of things that we said the court should be sensitive to," says Veel.

For example, in the majority reasons Justice Kasirer writes: "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." He adds that "drawing the line between what is acceptable and what is not is a delicate exercise."

Expert evidence had highlighted the gender-based inequality in the UAE law, and the mother argued that the country's gender-based allocation of custody and guardianship is "incompatible with Ontario law." Justice Kasirer agreed 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 matter." If there were an automatic rule which assigned custody or decision-making authority on the basis of gender, that foreign law could amount to serious harm. But that harm would be mitigated of the rule were not automatic and depended on the best interests of the child, he said. The trial judge had found that UAE law incorporates the best-interests-of-the-child standard.

"All of those things are good," says Veel, "because they recognize that we have to be sensitive to the legal context in any other country that children might be sent to."

In F. v. N. the mother and father were married in Pakistan and lived in Dubai for the entirety of their marriage. It was the family’s home because of the father’s job, and they had been issued a number of temporary residence visas, the renewal of which the father had discretion over. Both parents are Pakistani citizens, but the mother also has Canadian citizenship.

In 2020, the mother visited her family in Canada and told her husband that neither she nor the children were coming back.

The father filed for divorce in Dubai and applied in Canada, under s. 40 of the Children's Law Reform Act, to have the children sent back for determination of custody and access in the UAE.

A Dubai court granted the divorce and gave the father custody and guardianship over the children. The mother did not participate in these proceedings.

The mother sought, under ss. 22 and 23 of the CLRA, to have an Ontario court decide the parenting issues. The Court declined jurisdiction, not being satisfied that the children would suffer serious harm if removed from Ontario. The judge found that the mother was wrongfully keeping the children in the province, and it was in their best interests to return to Dubai.

A Court of Appeal majority confirmed the court’s ruling, but in the opinion of the dissenting judge, the lower court had incorrectly assessed serious harm and should have exercised jurisdiction.