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CUSTODY, PARENTING AND ACCESS - Courts - Jurisdiction - Ordinary residence

Thursday, October 07, 2021 @ 6:19 AM  

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Appeal by the mother from a trial judgment finding that Ontario had no jurisdiction to determine the custody and parenting of the parties’ children and ordering the children to be returned to Dubai. The parties married in 2012 and resided in Dubai for eight years. The parties’ daughter was born in Ontario and was a Canadian citizen. Their son was born in Dubai and was also a Canadian citizen. Neither the parties nor their children were United Arab Emirates (UAE) nationals. In 2020, the appellant took the children to Canada with the respondent’s consent to visit her parents. The appellant then told the respondent she would not return to Dubai with the children. When the appellant took no steps in Ontario to determine the jurisdictional issue regarding the custody and access of the children, the respondent commenced legal proceedings in Ontario. Pursuant to s. 40 of the Children’s Law Reform Act (CLRA), the trial judge was satisfied that the children's best interests would be served by their return to Dubai so that a court there could adjudicate the matters of custody. He also found that the children were wrongfully retained in Ontario and that Dubai was their real home. The trial judge declined to exercise the court’s residual parens patriae jurisdiction. The trial judge dismissed the appellant’s claims that s. 40(3) was ultra vires the authority of Ontario’s powers and contravened their Canadian Charter of Rights and Freedoms (Charter) rights guaranteed by ss. 2(a), 6(1), 7, and 15.

HELD: Appeal dismissed. The trial judge did not err in finding there was no substantial evidence in Ontario concerning the best interests of the children and that they would not suffer serious harm if returned to Dubai. The trial judge was aware of the concern associated with the appellant’s residency status in Dubai but accepted expert evidence that there were workable solutions to resolve the issue. The judge’s finding that an agreement between the parties could be incorporated into an order of a Dubai court and would be enforceable by the court was supported by the evidence. The trial judge correctly concluded that the application of UAE custody law would not harm the children. Section 40(3) of the CLRA was intra vires of Ontario’s power. The nature and purpose of a return order under s. 40(3) was to protect a child from the harmful effects of their wrongful removal or retention and to return a child wrongfully removed or retained to the jurisdiction which was most appropriate for the determination of custody and access. A return order under s. 40(3) was the culmination of a judicial inquiry into the interests of a child who had been wrongfully removed to and retained in Ontario. The provision’s focus was on the welfare of a child and providing a practical mechanism to protect a child against the harmful effects of an international abduction by one parent. Section 40(3) formed a necessary part of a provincial statutory scheme that sought to protect a child from the harmful effects of their wrongful removal or retention which fell within the established provincial power to legislate with respect to child custody and welfare as a matter of property and civil rights in the province.  An order made under s. 40(3) did not engage the rights of the mother and children to security of the person under s. 7 of the Charter. A s. 40(3) return order would not amount to a change of her custodial rights. Any psychological harm that might arise on the part of the mother or the children would result from the mother’s refusal to return to Dubai with the children, not from any state conduct flowing from s. 40(3). The statutory scheme of which s. 40(3) formed a part offered a procedurally fair mechanism, which accorded with principles of fundamental justice, by which a court can consider any risk of harm to the children, including the impact of a separation from a parent or primary caregiver. Section 40(3) had no discriminatory impact on the appellant and the children. The return order did not banish or exile or deport, and thereby infringe the mobility rights of anyone.

N. v. F., [2021] O.J. No. 4678, Ontario Court of Appeal, P.D. Lauwers, C.W. Hourigan and D.M. Brown JJ.A., September 14, 2021. Digest No. TLD-October42021008