Ulfa Ismail
F. v. N., [2022] SCC 51
Key Terms
Section 23 of the Children’s Law Reform Act (CLRA): Ontario legislation which states that provincial courts should exercise jurisdiction over child custody and access matters for children physically present in Ontario when it is believed that leaving the province will impose serious harm onto a child.
Section 40 of the Children’s Law Reform Act (CLRA): Establishes that when courts deem one parent to have wrongfully retained their child in Ontario, the “left-behind” parent outside of the province may evoke a return order.
Background
A mother, (denoted as “F”) and father (denoted as “N”) share two children, a daughter “Z” born in 2016 and a son “E” born in 2019. In 2012, the parents got married in Pakistan. The mother (F) was a dual citizen of Pakistan and Canada while the father (N) held Pakistani citizenship and had been working in Dubai since 2008. Before getting married, the mother moved from Pakistan to Canada in 2005 along with her family. Upon getting married, the couple moved to Dubai, United Arab Emirates (UAE) where the father was employed in the financial sector. After getting married, the husband was able to sponsor his wife. Given that the mother does not have independent residence status, UAE laws deem her residency status as viable for as long as she remains married to her husband. During their marriage, the couple struggled with various ongoing challenges.
Childs Z and E, both citizens of Canada, lived in Dubai their entire lives until June 2020 when their mother took them to Ontario citing that she intended to spend time with her family in Canada. The mother, being their primary caregiver and in agreement with the father, left Dubai with return tickets. However, by July 2020, the mother communicated that she intended to stay in Ontario with her children rather than return to Dubai where her husband resided. The mother’s change of plans was not legitimized through a court. Furthermore, the father did not consent to his children staying in Ontario permanently.
Upon discovering the mother’s change in plans, the father began to take legal action in Ontario. Through section 40 of Ontario’s Children’s Law Reform Act (CLRA), which could be applied to cases of international child abduction, the father sought to have his children returned to Dubai. Meanwhile, the mother argued that she should gain sole custody under the CLRA given that such an arrangement was in the best interest of her children. The mother claimed that the father’s temperament and aggressive behaviour would make returning to Dubai unsafe for her children. Thus, staying in Ontario and allowing the provincial courts to make decisions regarding her children's custody, rather than UAE courts, was the best course of action.
Before the Mother’s hearing, the father proposed a settlement in which he offered to buy the Mother's property in Dubai under her name so that she may independently qualify for residency status. Under this settlement, he also agreed to allow their children to primarily reside with their mother.
In July of 2020, the father began divorce proceedings in Dubai without any legal participation from the mother. By March of 2021 the divorce was finalized and the mother, under UAE law, had a residency grace period of one year.
Procedural Posture
Under usual circumstances, Ontario courts do not handle custody issues under the CLRA when children have been wrongfully brought into a Canadian province from their residing country. In Ontario however, an exception can be made if the courts determine, under section 23 of the CLRA, that a child would suffer serious harm upon leaving the province.
In 2020, the trial judge at the Superior Court of Justice failed to determine that a return to Dubai would inflict serious harm on children Z and E. Rather, both parents were observed to have been safe, good and loving parents who have never abused or neglected their children. Upon observing inconsistencies in the mother’s testimony, the trial judge held that she was not a credible witness. As a result, the mother’s claims that the father of her children had been physically aggressive were not accepted. The trial judge held that the mother had wrongfully kept her children in Ontario and thus, the “only appropriate order” was for Z and E to return to Dubai, with or without their mother.
Before any orders were finalized, the judge offered both parties the opportunity to make additional submissions in the case that they wished to include the father’s previous settlement offer. Ultimately, the mother did not exercise this option and the settlement offer was excluded.
Court of Appeal for Ontario
Following the decision from the Superior Court of Justice, the mother appealed to the Court of Appeal in 2021. The majority agreed with the lower court's decision that children Z and E were to be returned to Dubai. As a result, the mother’s appeal was dismissed.
Supreme Court of Canada: Holding and Reasoning
The mother appealed to the Supreme Court of Canada in 2022. By this point, the mother’s one-year residency grace period in Dubai had passed. At the Supreme Court, the mother argued that the trial judge had erred in declaring that evoking s.23 of the CLRA did not apply to this custody case given that there lacked satisfactory evidence of serious harm. Additionally, the mother claimed that the trial judge erred by ruling that children Z and E should be returned to Dubai.
Following court proceedings, the majority held that the father in this case did not meet the criteria that would deem him a “serious harm” to his children. Generally, in the realm of Canadian family law, courts seek to determine the best interests of children by considering the circumstances through the children’s perspective. The majority noted that although separation from their mother may cause child’s Z and E psychological harm, the severity would not likely amount to “serious harm” as the CLRA describes. Ultimately, it was held that since the trial judge did not err in their observations regarding the potential levels of harm, the custody of children Z and E should be decided through the UAE’s courts. Aside from this however, the majority stated that should the mother decide to return to Dubai with her children, the father should honour the terms of his initial settlement offer. With this, the Supreme Court dismissed the appeal.
Implications
F. v. N. is unique in that it questions whether Canadian provincial courts or the courts of the United Arab Emirates (UAE) should rule on the custody of young children who share a Canadian mother. Given that the father in this case did not consent to his children staying in Ontario permanently with their mother, such an arrangement could only be made possible through evoking the CLRA which explains under s .23 that the risk of “serious harm” should be established.
In exceptional circumstances where children face serious risk, provincial courts can opt to engage in further family legal proceedings and instead leave custody matters to international courts. This precedent is justified under the pursuit of seeking out the “best interests of the child”. When children spend the majority of their lives outside of Canadian borders with parents who are both observed to be caring and loving rather than abusive and neglectful, one parent removing them from another constitutes international child abduction. Hence, children should be able to remain with one or both of their parents in their home country.
Bibliography
“F. V. N. - SCC Cases.” 2017. Scc-Csc.ca. 2017. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19572/index.do.
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