Mom’s Self-Help Did Not Prevent Court-Ordered Return of Kids to Dubai
Long-time readers will see a common theme in the rulings by Ontario Family courts: When pressed to resolve a dispute between separated or divorced parents, the courts will always choose the option that keeps the best interests of the child paramount.
But in a recent appellate decision called N. v. F., the Ontario Court of Appeal concluded that this was not always the first consideration in jurisdictional disputes, namely in cases where an Ontario court must decide whether it has jurisdiction over a custody matter when one of the parents is a different country, and wants the child returned there. Instead, an Ontario court can only assume jurisdiction over such international disputes if the strict legislative tests are met, and – perhaps surprisingly – at the initial stage this does not focus on the customary “best interests of the child” test. In N. v. F., that meant the mother had to return with the children from Ontario to where the father lived in Dubai, even though she had always had primary care of them.
The couple had met and married in Pakistan, but lived in Dubai for the entirety of their 8-year marriage. They had two young children under the age of 5 who had spent their entire lives in Dubai. None were permanent residents or citizens of the United Arab Emirates (UAE), which country is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
However the mother was a Canadian citizen (having immigrated when she was 15), as were both of the children. At least annually, the mother took the children on longer visits to Ontario, where their maternal grandparents lived.
One such month-long visit took place in the summer of 2020, with the father’s permission. But within two weeks of leaving, the mother told him she’d decided to stay with the children in Ontario permanently. She then withdrew them from the Dubai school and enrolled them in Ontario, without the father’s knowledge or consent.
This prompted the father to apply to a court in Ontario for various divorce-related remedies, including an order forcing the children to be returned to him in Dubai where a full custody/access hearing could take place. However the mother challenged the Ontario court’s jurisdiction to make any such order of this type.
In sorting the matter out at trial, the judge had found the father to be “significantly more credible” than the mother, whose asserted reasons for keeping the children in Ontario were suspect. The judge also discounted the testimony of the mother’s experts on the key issue of whether the children would suffer harm if they were returned to Dubai without her. On the other hand, the trial judge accepted both parents’ experts to the effect that the Family courts in the UAE – like those in Ontario – ultimately look at the “best interests of the child” when making substantive rulings in custody and access matters, with it being the paramount consideration. This suggested the matter would be treated justly if given to the Dubai court to resolve.
These findings by the trial judge came under scrutiny on appeal, where the Court of Appeal declined to interfere or override them. It also confirmed the trial judge was not incorrect to decline jurisdiction pursuant to the Children’s Law Reform Act (CLRA), which otherwise allows an Ontario court to take jurisdiction of a custody/access in narrowly-prescribed circumstances. The CLRA did not apply to that scenario at all; it applied only if the children “habitually” lived in Ontario (which they did not), or where a legislated list of six factors were met (which they were not, in this case).
In a 250-paragragh judgment, the majority of the three-member Appeal Court panel said the purpose of the CLRA legislation is to ensure that custody and access applications are determined based on the best interests of the children, while avoiding tandem rulings by courts in two different geographical locations. It also aims to discourage the abduction of children, as well as “forum shopping” in custody/access matters.
The Appeal Court added that when making the early-stage decision on whether to take jurisdiction in a particular matter, an Ontario Family court was not required to focus first on the children’s best interests; rather, it was to begin by honing in on whether all six of legislated factors in the CLRA were met. In this case, the mother fell short of satisfying them all; for example, she could not meet the test that required her to show substantial evidence in Ontario concerning the best interests of the children, since they had spent only brief stints there.
When applied to the overall facts, the trial judge’s decision to decline jurisdiction over the matter deserved to be upheld, since it was clear that the custody issues were more appropriately determined by the court in the UAE. Even though the mother had effectively had primary care of the children since they were born, she had wrongfully detained them in Ontario. Instead, the children had to be returned to Dubai, which was their “real home”.
For the full text of the decision, see