In the recent family law case of F. v. N., the Supreme Court of Canada affirmed an Ontario court’s decision to return two children to Dubai. In the judgement rendered on December 2, 2022, the 5-4 majority held that the trial judge committed no reviewable error in his application of a s.40 order under the Children’s Law Reform Act (“CLRA”) to return the children to the United Arab Emirates (“UAE”), where custody would be decided. In the case, the Supreme Court clarified the application of the “serious harm” threshold and spoke to the issues of “forum-shopping” and child abduction from foreign countries not party to the Civil Aspects of International Child Abduction (the “Hague Convention” or “Convention”).

Legislative Frameworks for the “Serious Harm” Threshold

Canada is a party to the Hague Convention, which implements safeguards to prevent intercountry child abduction. Not all countries are party to the Convention, such as the UAE. Ontario has enacted a statutory scheme in Part III of the CLRA, which sets out provisions for determining jurisdiction where children have been wrongfully removed from a non-Convention country.

In general, the CLRA mandates that an Ontario court can only make a parenting order with the jurisdiction to do so. Section 19 states that an Ontario court should “refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection.” Nevertheless, s.23 acts as an exception to this general rule. It allows an Ontario court to exercise its jurisdiction should the child suffer “serious harm” as a result of the removal. Absent this finding, an Ontario court can order the child’s return under s.40.

The Extra-Provincial Enforcement of Custody Orders Act is equivalent legislation in Alberta to recognize and enforce foreign custody orders. Similar to the CLRA, the Act allows the Court to vary custody orders if a child should suffer “serious harm” due to custody being restored to the person named in the order. Therefore, this case could prove highly influential for the operation of international custody orders in Alberta.

Mother Sought to Remain in Ontario with Children

In the case before the SCC, the father, a Pakistani citizen living in Dubai, initiated the proceedings in Ontario under s.40 of the CLRA, seeking the return of his two daughters. In June 2020, the mother, a Pakistani-Canadian citizen, took the children from Dubai, where they habitually reside, to Ontario on a vacation to visit family. The father had agreed to the trip. After several weeks, the mother informed the father that she intended to remain in Ontario with the children. The mother relied on s.23 of the CLRA, claiming that the children would suffer serious harm if returned to Dubai.

At first instance, an Ontario court declined jurisdiction. The trial judge was not satisfied that on a balance of probabilities that the children would suffer serious harm if removed from Ontario, and it was in the children’s best interests to return to Dubai. The Court of Appeal confirmed the order, but Lauwers J.A. dissented based on the indefinite separation between the children and their primary caregiver, as the mother claimed she would not return. The mother appealed the decision to the Supreme Court of Canada, adopting Lauwers’ stance.

Majority Supports a Contextual Approach to Serious Harm [

In dismissing the appeal, the majority judgement provided an analysis of the threshold for serious harm and its relation to considerations for the best interests of the child. Justice Nicholas Kasirer, writing for the majority, stated:

[9] Contrary to the Mother’s position, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based best interests test as is conducted for a parenting order on the merits.

…

[67] Thus, when deciding whether to exercise jurisdiction under s. 23, judges should not conduct a broad-based best interests analysis, but should rather conduct an individualized assessment of the risk of serious harm.

[68] There is, of course, no doubt that an individualized serious harm analysis may overlap with a full best interests analysis. For instance, many of the best interests factors enumerated under s. 24(3) of the CLRA, which are to be applied when “making a parenting order or contact order”, may also inform a serious harm inquiry, depending on the circumstances of a given case.

In that regard, the Supreme Court elaborated that the serious harm threshold is contextual to individualized circumstances and may be informed by the best interests factors identified in the legislation and at common law. Furthermore, Justice Kasirer wrote:

[71] When conducting their s. 23 analysis, judges should consider both the likelihood and the severity of the anticipated harm (Ojeikere, at para. 62). The measure of s. 23 is highly factual and, as the Court of Appeal pointed out, is discretionary, in the sense that it involves the weighing of various factors (para. 52; Ojeikere, at para. 63; E. (H.), at para. 29; Volgemut v. Decristoforo, 2021 ONSC 7382, at para. 99 (CanLII); Ajayi v. Ajayi, 2022 ONSC 5268, 473 D.L.R. (4th) 609, at para. 20). Serious harm may be established through a single consideration or may arise from a combination of factors, given the holistic nature of the assessment mandated by s. 23 (C.A. reasons, at para. 140, per Brown J.A.; see also Ojeikere, at para. 63).

Within this framework, the majority recognized that separating a child from the primary caregiver can cause harm and should not be considered lightly. However, Justice Kasirer went on to state:

[78] But I reject the argument that such a separation, in it of itself and without regard to the individualized circumstances, will always rise to the level of s.23. As Hourigan J.A. wrote, this could ultimately defeat the legislative objective of discouraging child abductions of very young children (paras. 93-94; see also Jamali v. Gillani, 2021 BCSC 2134, at para. 101 (CanLII)). In order to deter and remedy child abductions effectively, courts should be prepared, in some circumstances, to order the return of the children despite a risk of separation from their primary caregiver. Deciding otherwise could allow abducting parents, in some situations, to rely on their status as primary caregivers to circumvent the due process for custody determination and remove the children from the authority of the courts that would normally have jurisdiction. This could ultimately risk making Ontario a haven for child abductions.

Justice Kasirer found that the trial judge had assessed the individual circumstances of the case against the threshold; the children would return to a “good, loving and caring parent,” and there is “not a hint of evidence” of abuse or mistreatment by the father. On this basis, he wrote that the trial judge “was entitled to conclude that, while there was undoubtedly harm, ‘serious harm’, within the meaning of s. 23, was nonetheless not present. [The trial judge’s] conclusions are owed deference and cannot be disturbed absent an error in law or a material error in the appreciation of the facts.” Therefore, the Supreme Court dismissed the appeal.

Dissent – Separation from Primary Caregiver

Justice Mahmud Jamal, writing in dissent, disagreed with the majority’s application of the threshold to the facts of the case. He noted that the minority would allow the appeal as the “trial judge made material errors in assessing both likelihood and severity.” In particular, he held:

[143] The trial judge misapprehended the evidence relating to the likelihood that the children would suffer harm if they are separated from their mother and returned to the father. This likelihood turned on the mother’s claim that she will not return to Dubai. The trial judge declared that he was ‘not sure’ that he believed the mother’s claim of non-return and assigned ‘very little weight’ (para. 368) to it because of inconsistencies in her account of tangential and largely irrelevant matters. In relying only on these inconsistencies, the trial judge ignored several crucial relevant considerations supporting the mother’s claim, thereby tainting his conclusion on the likelihood of the anticipated harm.

Justice Jamal identified these irrelevant factors as “whether the nanny Mary helped ‘a lot’ with the children; whether the father’s pornography consumption involved girls ages 14 to 16 or rather ages 16 to 19; and whether the mother was resident in Milton, Ontario, since 2005.” In the minority’s view, greater weight should have been afforded to the mother’s reasons for her refusal to return to the UAE, such as issues stemming from gender inequality in the law, her precarious residency status, and her connection to Canada.

For these reasons, the minority would allow the appeal.

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