Facilitating abduction?

It's a case Canadian family lawyers are watching closely. The Supreme Court of Canada is scheduled to hear an appeal in March 2022 in  F. v. N., involving a Canadian mother who brought her children from the United Arab Emirates, intending to remain in the country against the father's wishes. 

The case turns on the "best interests of the child" principle, and the SCC will also look at whether the trial judge erred in interpreting and applying ss. 23 and 40 of the Children's Law Reform Act. Under s. 23, a court has jurisdiction to "make or vary a parenting order or contact order with respect to a child" who would "suffer serious harm." But the provision does not explicitly refer to a child's "best interests."

"The nub of this case is to what extent does a court in Ontario have to consider the best interests of children, especially Canadian children, before ordering them back to a non-Hague country?" according to Aaron Franks, a family lawyer at Epstein Cole in Toronto. "Ironically, 'best interests' is specifically not supposed to be considered" in Hague Convention cases, he adds. "[O]ther Hague signatories have some degree of confidence that decisions are going to be made in the kids' best interest once everybody determines where that decision is to be made."

In the case at hand, the mother, a Canadian citizen, had lived with the father, originally from Pakistan, in Dubai for eight years. With the father's consent, the mother took their two young children, both Canadian citizens, to visit her parents in Ontario for a month-long visit in 2020. Two weeks after arriving, the mother told the father she would not return to Dubai with the children. The father subsequently brought legal proceedings in Dubai and then in Ontario.

The Ontario Superior Court of Justice heard the matter in December 2020. The father had applied for an order to return the children to the UAE under s. 40 of the CLRA, and the mother asked the court to exercise jurisdiction under s. 23 and to make parenting orders. 

In declining to exercise s. 23 jurisdiction, the trial judge was not satisfied, on a balance of probabilities, that the children would suffer serious harm if they were returned to Dubai. He took the view that the children were being wrongfully retained in Ontario by the mother under s. 40(a) and ordered the children returned home. 

The Court of Appeal upheld the trial decision, settling many of the issues. It found the trial judge to be correct and that the appellant mother's uncertain UAE residency status had been appropriately considered. 

But, in dissent, Justice Peter Lauwers would have allowed the appeal, arguing that there were legal errors in the trial judge's application of the relevant ss. 23 and 40 of the CLRA. His dissent what the Supreme Court will address specifically, namely regarding the nature of Ontario's interest in the parties' parenting dispute. It will also delve into whether the trial judge erred in ordering that the children be returned to Dubai. Justice Lauwers' dissent states that "separating Mother from the children would constitute serious harm to them and would be inconsistent with their best interests." 

That serious harm means that "s. 23 is met and the children need not be returned," says Ottawa family lawyer Alison Boyce of Mann Lawyers. But, she adds, "if you have young kids, that's a licence for international child abduction in a non-Hague situation." 

With no legal right to remain in the UAE, the mother's residential status is precarious since she is a foreign national there, Justice Lauwers points out. She would need to be married or own property in the UAE to stay, and though the father had made an offer to purchase her a property, he provided no evidence that they were financially able to do so. 

"Justice Lauwers says there's nothing really stopping the father from deciding for whatever reason that he's going to revoke his offer," or say he couldn't make it work for some reason, says Boyce. "Then the mother would have to leave the UAE and leave the kids behind." 

The Court of Appeal dissent makes some "compelling points and arguments that warrant an examination by the Supreme Court of Canada because I think those issues have national importance," says Boyce. 

This is especially the case as similar situations will likely arise in the future as people's jobs become more mobile, says Franks. "This could be a really difficult decision for the court because it involves questions of international comity." He adds that there is little doubt the SCC "will talk about the dangers of international child abduction and not wanting to encourage international child abduction. The question is, do the countervailing considerations outweigh that?"