F. Appellant v. N., 2022 SCC 51

SUPREME COURT OF CANADA Citation: F. v. N., 2022 SCC 51 Appeal Heard: April 12, 2022 Judgment Rendered: December 2, 2022 Docket: 39875 Between: F. Appellant and N. Respondent - and - Attorney General of Ontario, Office of the Children’s Lawyer, Defence for Children International-Canada and Canadian Council of Muslim Women Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment : (paras. 1 to 137) Kasirer J. (Wagner C.J. and Moldaver, Côté and Rowe JJ. concurring) Dissenting Reasons : (paras. 138 to 196) Jamal J. (Karakatsanis, Brown and Martin JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

F. Appellant v. N. Respondent and Attorney General of Ontario, Office of the Children’s Lawyer, Defence for Children International-Canada and Canadian Council of Muslim Women Interveners Indexed as: F. v. N. 2022 SCC 51 File No.: 39875. 2022: April 12; 2022: December 2.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for ontario Family law — Custody — International child abduction — Jurisdiction to make parenting order — Serious harm to child — Best interests of child — Return order — Parties residing in United Arab Emirates with their two children — Mother taking children on trip to Ontario with father’s consent but refusing to return — Father seeking order from Ontario court for children’s return — Mother requesting that Ontario court exercise jurisdiction to make parenting order on merits — Ontario court declining jurisdiction on basis that it was not satisfied that children would suffer serious harm if removed from Ontario and ordering that children be returned to United Arab Emirates — Whether Ontario court erred in declining jurisdiction and ordering children’s return — Children’s Law Reform Act, R.S.O. 1990, c.

C-12, ss. 23 , 40 . The father and the mother have two children, born in 2016 and 2019. The father is a citizen of Pakistan and has lived in Dubai, in the United Arab Emirates (“UAE”), since 2008. The mother, a citizen of Pakistan and of Canada, moved with her family from Pakistan to Ontario in 2005, and then to Dubai in 2012 when she married the father. The mother does not have an independent residency status in Dubai and has been sponsored by the father throughout their marriage. She is the children’s primary caregiver.

In June 2020, the mother travelled to Ontario with the children, leaving Dubai with return air tickets, ostensibly for a trip to visit her family. The father agreed to that trip; however, a few weeks later, the mother informed the father that she intended to stay in Ontario with the children and not return to Dubai. The father initiated proceedings in Ontario, seeking an order under s. 40 of the Children’s Law Reform Act (“ CLRA ”) for the return of the children to Dubai.

The mother, relying on s. 23 of the CLRA , said that the Ontario court should exercise its jurisdiction to decide custody and access as the children would suffer serious harm if they were returned to Dubai. She claimed that it was in the best interests of the children to remain in Ontario with her. The father replied that the Ontario court should not take up jurisdiction to make a parenting order and that it was in the best interests of the children that all issues of custody and access be decided in the UAE.

Prior to the hearing of the father’s application, he presented a settlement offer to the mother in which he undertook to ensure the mother’s independent residency in Dubai, in particular, by purchasing property for her in her name. He further undertook that the children would reside primarily with the mother and that major decisions regarding the children would be made jointly. The Ontario court declined jurisdiction. The trial judge was not satisfied that the children would suffer serious harm if they were removed from Ontario.

He declared that the mother had wrongfully retained the children in Ontario and concluded that it was in the best interests of the children to return to Dubai, with or without the mother. He offered all parties the opportunity to make further submissions on whether to include the father’s settlement proposal in his order but the mother did not avail herself of this opportunity. A majority of the Court of Appeal confirmed the return order, but the dissenting judge was of the view that the trial judge had erred in his assessment of serious harm and that the Ontario court should have exercised jurisdiction.

Held (Karakatsanis, Brown, Martin and Jamal JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Moldaver, Côte, Rowe and Kasirer JJ.: The trial judge in the instant case committed no reviewable error and his decision that the serious harm threshold was not met is entitled to deference. The custody dispute, which is undecided here, should be resolved by the courts in the UAE, where the children have their closest connection. The CLRA seeks to discourage child abductions and the wrongful removal and retention of children to Ontario.

The statute is based on the premise that, following an abduction, the child’s best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence. Therefore, w here a child who is wrongfully removed to or retained in Ontario habitually resides in

a country that is not a party to the Convention on the Civil Aspects of International Child Abduction (“ Hague Convention ”), the CLRA provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection. One exception is set forth in s. 23 of the CLRA : a court can exercise jurisdiction to make a parenting order where a child is physically present in Ontario and, on a balance of probabilities, the court is convinced that the child would suffer serious harm if removed from the province.

At the preliminary stage of deciding jurisdiction, it is not the role of the judge to conduct a broad-based best interests inquiry, as they would on the merits of a custody application. A broad-based best interests analysis under s. 23 would ultimately undermine the purpose of the serious harm exception, that is, to ensure decisions on the merits are made by the appropriate authority in accordance with the best interests of the child. The onus to prove that the child would suffer serious harm upon return rests on the abducting parent.

The burden is demanding and it is not enough to conclude that the return would have a negative impact on the child. It is also not enough to identify a serious risk of harm: the court must be satisfied, on a balance of probabilities, that the harm itself would be serious in nature. Serious harm inquiries are child-centered and the analysis is highly individualized. The child’s age, and where relevant, their special needs and vulnerabilities, may mitigate or aggravate the risk of harm. When conducting their s. 23 analysis, judges should consider both the likelihood and severity of the anticipated harm.

The focus is on the particular circumstances of the child, rather than on a general assessment of the society to which they would be sent back. Given the discretionary, individualized and fact-specific character of the serious harm analysis, a trial judge’s findings are owed deference. Appellate courts cannot set aside a trial judge’s conclusion on serious harm simply on the basis that they would have weighed the evidence differently.

One relevant question as to the scope of the s. 23 exception is whether separation of a child from their primary caregiver can pose a risk to the child’s psychological well-being rising to the level of serious harm. Separating an infant from their primary caregiver is a circumstance that most certainly can cause psychological harm to the child. But such a separation, in and of itself and without regard to the individualized circumstances, will not always rise to the level of harm required under s. 23 of the CLRA .

In order to deter and remedy child abductions effectively, courts should sometimes be prepared 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.

When considering risks of harm flowing from separation, courts should recognize that if a child is separated from their primary caregiver, but is nevertheless returned to their capable left-behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm may not be met. Courts should also consider all barriers to the return of the primary caregiver. Nevertheless, a parent ought not to be able to create serious harm and then rely on it through their own refusal to return.

Courts should carefully scrutinize refusals to return when there is no impediment to the parent re-entering and remaining in the country of the child’s habitual residence. But a primary caregiver’s refusal to return will not always be taken to be unjustified. An abducting parent may have legitimate and reasonable reasons for not returning to the foreign country, such as significant obstacles to employment or risks to safety, including evidence showing that the left-behind parent is responsible for child abuse or intimate partner violence to the primary caregiver.

Another relevant question as to the scope of s. 23 is whether inconsistencies between family law in the foreign jurisdiction and in Ontario should factor in a serious harm analysis. As long as the ultimate question of custody will be determined by the court that has jurisdiction to do so on the basis of the best interests of the child, inconsistencies between local and foreign legal regimes will usually not amount to serious harm.

Nonetheless, there may be instances where foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the CLRA . When a court is satisfied that a child has been wrongfully removed to or is wrongfully retained in Ontario, a return order presented by the left-behind parent is governed by s. 40 of the CLRA . Judges should consider the best interests of the child in exercising their s. 40 powers.

The return order procedure starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. If the evidence is insufficient to establish that Ontario courts should assume jurisdiction, judges should not use their residual s. 40 powers to postpone indefinitely the child’s return to the jurisdiction best positioned to decide the case on the merits.

Incorporating undertakings from the parties within a s. 40 return order may effectively facilitate a child’s return by providing an answer to an anticipated risk of harm. Even without a risk of serious harm within the meaning of s. 23 , undertakings may be in the child’s best interests in that they effectively mitigate less consequential or short-term distress. Problems associated with the enforceability of undertakings before foreign courts are well known. What is required is that the judge who hears the parties is satisfied that the undertakings given are adequate.

This assessment is discretionary and must be made in light of the parties’ particular circumstances. In the instant case, the trial judge did not commit a palpable and overriding error when he concluded that the children would not suffer serious harm if they were returned to Dubai. He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm.

The allegations of serious harm faced by the children in the instant case relate, in part, to the risk that the mother, as primary caregiver, will be separated from them should they be ordered home to Dubai where she has no independent residency status and does not wish to reside. The trial judge was aware of the mother’s desire not to return, and to the very real possibility that she might remain in Ontario even if the children were ordered to return. This possibility was a foundational premise of his assessment of the likelihood of serious harm.

The trial judge heard the parties and the expert evidence, and he concluded that it would be in the children’s best interests to return to Dubai, even if the mother did not follow them. The trial judge did not rely on the view that the mother’s conduct was the source of serious harm. Nor did he rely on the idea that the mother was obliged to accept the father’s offer to secure her residency status in Dubai. The mother did not demonstrate that his conclusions were unsupported by the evidence or otherwise reflected a palpable and overriding error.

The allegations of serious harm faced by the children in the instant case also relate to the mother’s claim that the UAEcourts’ parenting decisions are not made according to the best interests of the child. The trial judge was aware that aspects of UAE laware said to conflict with Ontario’s conception of the best interests of children.

The division of parental responsibilities on the basis ofgender is inconsistent with the gender equality upon which the allocation and exercise of custody and access rights rests in Ontario law.Such a significant discrepancy required the trial judge to determine whether the best interests of the child principle would neverthelessprevail under UAE law should he order the return of the children. The trial judge relied on the testimony of expert witnesses to examinehow those rules are applied by UAE courts.

He concluded, on the strength of that evidence, that the provisions mandating the allocationof parental responsibilities on the basis of gender are not automatic or imperative, but are rather subject to the discretion of judges whoultimately decide custody and access on the basis of the best interests of the child. The mother has offered no principled basis to revisitthe trial judge’s conclusion.

In making the return order under s. 40, the judge took into account undertakings made by the father in a settlement offer thatwould alleviate the precariousness of the mother’s residency status and thereby facilitate her return with the children, should she chooseto do so. These undertakings were, for the trial judge, protective measures that promoted the best interests of the children in the eventthat the mother did decide to return. He considered the undertakings to be adequate.

There is no reason to disturb this conclusion, but theundertakings should have been made explicit in the order, given the paramountcy of the best interests of the child principle under s. 40.Accordingly, in dismissing the appeal, it is appropriate to acknowledge that the father is bound by his undertakings. Per Karakatsanis, Brown, Martin and Jamal JJ. (dissenting): There is agreement with the majority’s discussion of theapplicable legal principles but disagreement with the application of the law to the instant case.

A proper application of the law to thefacts establishes that the children would suffer serious harm if removed from Ontario. Therefore, the appeal should be allowed, the orderof the trial judge set aside, and the matter returned to a different judge of the Ontario Superior Court to make a parenting order on anexpedited basis. While the CLRA aims to discourage child abduction and provides for the return of abducted children, s. 23 recognizes that, insome cases, the objective of discouraging abduction must yield to the paramount objective of preventing serious harm to children.

Acourt’s s. 23 determination is discretionary and generally attracts appellate deference. Appellate courts should not intervene simplybecause they would have weighed the likelihood or severity of harm differently. But appellate deference is not without limit. An appealcourt may intervene if there has been a material error, a serious misapprehension of the evidence, or an error in law. In the instant case, the trial judge made material errors. He seriously misapprehended the evidence in evaluating thelikelihood of harm the children would suffer if they are separated from the mother and returned to the father.

The likelihood of harmturned on the mother’s claim that she will not return to Dubai. The trial judge was not sure he believed the mother’s claim of non-returnand assigned very little weight to it. He relied on inconsistencies in the mother’s account of tangential and largely irrelevant matters andignored several crucial relevant considerations supporting the mother’s claim that she would not return, thereby tainting his conclusionon the likelihood of the anticipated harm. Any suggestion that the mother has self-engineered her claim of serious harm by steadfastlyrefusing to return to Dubai is rejected.

When a parent justifiably refuses to return, the principle against self-engineered harm does notapply. The mother provided reasonable and legitimate reasons for refusing to return to Dubai.

Her precarious residency status in Dubai,her bases for refusing the father’s settlement offer purporting to provide her with benefits if she returns, her legitimate concerns aboutliving under the laws of the UAE as a woman, and her connections in Canada cumulatively rebut any suggestion of self-engineered harm.The trial judge was required to turn his mind to the relevant factors that go to the believability of the mother’s claim but he ignoredrelevant evidence as to why she would not return to Dubai.

This omission is a material error because the trial judge’s reasons give rise tothe reasoned belief that he must have forgotten, ignored, or misconceived the evidence in a way that affected his conclusion. The trialjudge’s failure to address crucial relevant considerations shows that he seriously misapprehended the evidence and made an arbitrarydecision to place very little weight on the mother’s claim that she would not return to Dubai. The mother established that the childrenwould likely be harmed if returned to Dubai.

The trial judge also misapprehended the evidence in evaluating the severity of the harm to the children. The trial judge’sown factual findings regarding the expert evidence and the circumstances of these children demonstrated that the children would sufferserious harm if they lose their mother as their primary caregiver. The trial judge’s contrary conclusion does not attract deference becauseit contained material errors and failed to address the particular circumstances of the children.

Despite the jurisprudence repeatedlyrecognizing that young children can suffer serious emotional and psychological harm if removed from their primary caregiver, anddespite the trial judge accepting expert evidence and taking judicial notice to the same effect, the trial judge found that the childrenwould not suffer serious harm if separated from their mother. This was a serious misapprehension of the evidence and invites appellateintervention. The trial judge’s conclusion gives rise to the reasoned belief that he must have misapprehended the evidence in a way thataffected his conclusion.

Absent a misapprehension of evidence, the trial judge’s conclusion is inexplicable. The trial judge’s reasons didnot apply the case law or the expert evidence to the children’s particular circumstances. In fact, in his s. 23 analysis, the trial judge didnot address the children’s circumstances at all. He simply stated bald conclusions. The trial judge did not determine that the children would not suffer serious harm by relying on the mitigating effects ofalternate caregivers. The trial judge did not address this factor in his s. 23 analysis.

Even if the trial judge had sought to rely on thealternate care proposed by the father to mitigate the harm that the children would suffer if separated from their mother, it is difficult tounderstand how being cared for by the proposed alternate caregivers could adequately mitigate the harm that the children would suffer ifthey are separated from their mother. Cases Cited By Kasirer J. Applied: Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2S.C.R. 1014; considered: Ojeikere v.

Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561; referred to: Droit de la famille — 3451, [1999]R.D.F. 641; Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849; Thomson v. Thomson, (SCC), [1994] 3S.C.R. 551; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398; Droit de la famille — 15751, 2015 QCCA 638;

Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440; L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111; E. (H.) v. M. (M.), 2015ONCA 813, 393 D.L.R. (4th) 267; Young v. Young, (SCC), [1993] 4 S.C.R. 3; Ontario (Children’s Lawyer) v. Ontario(Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481; Canadian Foundation for Children, Youth and the Lawv. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362; W.D.N. v. O.A.,2019 ONCJ 926, 35 R.F.L. (8th) 190; S. (D.M.) v. S. (C.L.), 2016 BCSC 1551, 91 R.F.L. (7th) 202; Onuoha v.

Onuoha, 2021 ONSC2228, 54 R.F.L. (8th) 1, aff’g 2020 ONSC 6849, 49 R.F.L. (8th) 115; Volgemut v. Decristoforo, 2021 ONSC 7382; Ajayi v. Ajayi, 2022ONSC 5268, 473 D.L.R. (4th) 609; M. (R.A.) v. M. (Y.Y.), 2005 BCPC 259, 48 Imm. L.R. (3d) 301; A. (M.A.) v. E. (D.E.M.), 2020ONCA 486, 152 O.R. (3d) 81; Leigh v. Rubio, 2022 ONCA 582, 75 R.F.L. (8th) 251; Aldush v. Alani, 2022 ONSC 1536, 74 R.F.L. (8th)113; Barendregt v. Grebliunas, 2022 SCC 22; B.J.T. v. J.D., 2022 SCC 24; Gordon v. Goertz, (SCC), [1996] 2 S.C.R.27; Jamali v. Gillani, 2021 BCSC 2134; Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365; S.A.G. v.

C.D.G., 2009 YKSC 21; Hage v.Bryntwick, 2014 ONSC 4104; P. (J.) v. P. (T.N.), 2016 ABQB 613, 90 R.F.L. (7th) 211; C. v. C. (Minor: Abduction: Rights of CustodyAbroad), [1989] 2 All E.R. 465; In re J. (A Child) (Custody Rights: Jurisdiction), [2005] UKHL 40, [2006] 1 A.C. 80; General MotorsAcceptance Corp. of Canada v. Town and Country Chrysler Ltd., 2007 ONCA 904, 288 D.L.R. (4th) 74; Hapag-Lloyd AG v. IamgoldCorp., 2021 FCA 110; Larche v. Ontario (1990), (ON CA), 75 D.L.R. (4th) 377; M.M. v. United States of America,2015 SCC 62, [2015] 3 S.C.R. 973; Cannock v.

Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542; R.F. v. M.G., (QCCA), [2002] R.D.F. 785; Brown v. Pulley, 2015 ONCJ 186, 60 R.F.L. (7th) 436. By Jamal J. (dissenting) Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561; B.J.T. v. J.D., 2022 SCC 24; Van de Perre v. Edwards, 2001 SCC60, [2001] 2 S.C.R. 1014; Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235; R. v. G.F., 2021 SCC 20; Waxman v. Waxman (2004), (ON CA), 186 O.A.C. 201; Onuoha v. Onuoha,2021 ONSC 2228, 54 R.F.L. (8th) 1; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27; Young v.

Young, (SCC), [1993] 4 S.C.R. 3; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R.165; A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81; R.J.F. v. C.M.F., 2014 ABCA 165, 575 A.R. 125; Aldush v. Alani,2022 ONSC 1536, 74 R.F.L. (8th) 113; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 2(a), 7. Civil Code of Québec. Children’s Law Act, 2020, S.S. 2020, c. 2. Children’s Law Reform Act, R.S.O. 1990, c. C.12 [am. c. 25, Sch. 1],

Part III, ss. 18(1), 19, 20(1), 22, 23, 24, 40 to 46, 69. Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E-14. Family Law Act, S.B.C. 2011, c. 25. Federal Law No. 28 of 2005 on Personal Status (UAE). Treaties and Other International Instruments Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35,

preamble, Article 13(1)(b). Authors Cited Bailey, Martha. “Canada’s Conflicted Approach to International Child Abduction”, in Bill Atkin, ed., The International Survey of FamilyLaw. Bristol: Jordan, 2016, 81. Bala, Nicholas. “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of theCLRA” (2019), 38 C.F.L.Q. 301. Bala, Nicholas, and Jacques Chamberland. “Family Violence and Proving ‘Grave Risk’ for Cases Under the Hague Convention Article13(b)”, Queen’s Law Research Paper No. 91, 2017. Beaumont, Paul R., and Peter E. McEleavy.

The Hague Convention on International Child Abduction. New York: Oxford UniversityPress, 1999. Chamberland, Jacques. “Country Report — Canada” (2005), 9 Judges’ Newsletter on International Child Protection 75. Chamberland, Jacques. “Domestic Violence and International Child Abduction: Some Avenues of Reflection” (2005), 10 Judges’Newsletter on International Child Protection 70. Eekelaar, John M. “International Child Abduction by Parents” (1982), 32 U.T.L.J. 281.

Gosselain, Caroline. “Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States”, in Permanent Bureau of theConference, Preliminary Document No. 7, 2002. Grammaticaki-Alexiou, Anastasia. “Best Interests of the Child in Private International Law”, in Collected Courses of the HagueAcademy of International Law, vol. 412. Boston: Brill Nijhoff, 2020, 253. Hague Conference on Private International Law. 1980 Child Abduction Convention — Guide to Good Practice,

Part VI, Article 13(1)(b).

Hague, 2020. Hale, Brenda. “Taking Flight — Domestic Violence and Child Abduction” (2017), 70 Current Legal Problems 3. Schuz , Rhona. The Hague Child Abduction Convention: A Critical Analysis . Oxford: Hart Publishing, 2013. Schuz, Rhona. “The Relevance of Religious Law and Cultural Considerations in International Child Abduction Disputes” (2010), 12 J.L. & Fam. Stud. 453. APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Hourigan and Brown JJ.A.), 2021 ONCA 614 , 158 O.R. (3d) 481, 464 D.L.R. (4th) 571, 62 R.F.L. (8th) 7, [2021] O.J.

No. 4678 (QL), 2021 CarswellOnt 12685 (WL), affirming a decision of Conlan J., 2020 ONSC 7789 , 475 C.R.R. (2d) 1, [2020] O.J. No. 5507 (QL), 2020 CarswellOnt 18401 (WL). Appeal dismissed, Karakatsanis, Brown, Martin and Jamal JJ. dissenting. Fareen L. Jamal and Fadwa K. Yehia , for the appellant. Bryan R. G. Smith , Lindsey Love-Forester and Earl A. Cherniak , K.C. , for the respondent. Estée Garfin and Ravi Amarnath , for the intervener the Attorney General of Ontario. Caterina E. Tempesta and Sheena Scott , for the intervener the Office of the Children’s Lawyer.

Farrah Hudani and Jessica Luscombe , for the intervener the Defence for Children International-Canada. Paul-Erik Veel , for the intervener the Canadian Council of Muslim Women. The judgment of Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. was delivered by Kasirer J. — I. Overview [ 1 ] The outcome of this appeal turns on whether the Ontario courts should exercise jurisdiction over the merits of a custody dispute involving an international child abduction.

The dispute stems from the wrongful retention in Ontario by the appellant, the “Mother”, of two very young children who habitually reside in Dubai, in the United Arab Emirates (“UAE”). The children are retained in the province without the consent of the respondent, the “Father”, who remained in Dubai.

What is at issue on appeal is not who, as between the parties, should be awarded the disputed custody rights in respect of the two children but instead which court — the Ontario court or a court in the UAE — should decide the matter. [ 2 ] The proceedings commenced with an application for an order under s. 40 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“ CLRA ”), brought by the left-behind parent.

The Father has asked the Ontario Superior Court of Justice for an order to return the children to the UAE, a country that, unlike Canada, is not a party to the Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35 (“ Hague Convention ”).

The Mother answered that she would not return to Dubai and asked the court to take up jurisdiction over custody on the merits. [ 3 ] Where a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Hague Convention , Ontario law provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection.

One such exception is set forth in s. 23 of the CLRA : a court can exercise jurisdiction to make a parenting order where a child is physically present in Ontario and, on a balance of probabilities, the court is convinced that the child would suffer “serious harm” if removed from the province. [ 4 ] In opposing the application, the Mother recalls that, like her, the children are Canadian citizens. She says that these two young children would suffer serious harm if separated from her, their primary caregiver.

The Mother also argues they would suffer serious harm because, under UAE law, custody would not be decided pursuant to the principle of the best interests of the child as understood in Ontario. [ 5 ] After an 11-day trial, the Ontario court declined jurisdiction because it was not satisfied that the children would suffer serious harm if sent home to Dubai. A majority of the Court of Appeal confirmed the return order.

The dissenting judge was of the view that the trial judge had erred in his assessment of serious harm under s. 23 and that the Ontario court should exercise jurisdiction. [ 6 ] In this Court, the Mother argues that the trial judge failed to properly identify and apply the best interests of the child principle to the relevant provisions of the CLRA . She says that the return of the young children to Dubai will necessarily separate them from her, their primary caregiver, because her residency status there is wholly dependent on the will and cooperation of the Father.

This presents a plain risk of serious harm should these young children be ordered to return. Further, the gender inequality between mothers and fathers that characterizes UAE family law means that custody will not be decided there in accordance with the best interests of the children.

By ordering the return of the children, the trial judge failed to apply the best interests principle based on the comprehensive measure set out in s. 24 of the CLRA , which should have led him to refuse the application given the serious harm return would cause to the children. [ 7 ] The Mother is right to say that the lower courts were bound to apply the principle of the best interests of the child to the problem at hand and to do so from the child’s-eye point of view.

But she misconstrues, in my respectful view, how the Ontario legislature has directed courts to apply the best interests principle to the question of jurisdiction over children who are wrongfully retained in Ontario.

[8]

Section 19 sets the objectives for the law relating to decision-making responsibility and parenting time in

Part III ofthe CLRA, including applications for the return of wrongfully removed children to countries party to the Hague Convention (s. 46(2))and non-Hague Convention countries (s. 40).

In addition to discouraging child abduction, the legislature seeks to ensure that the child’sbest interests are paramount to the making of ultimate parenting orders and that parenting determinations be made in the place to whichthe child has the closest connection, barring exceptional circumstances. [9] The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child arealigned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction.

Returningthe child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests. The analysisof the jurisdictional questions contemplated in s. 40, including the risk of serious harm in s. 23, starts from this ordinary alignment of bestinterests and focuses on factors that would tend to establish, as an exception, serious harm if the child was returned.

Contrary to theMother’s position, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based bestinterests test as is conducted for a parenting order on the merits. [10] The approach advocated for by the Mother risks conflating decisions on jurisdiction with custody decisions on themerits and would encourage forum-shopping in future cases.

This would reduce these decisions, as Hourigan J.A. wrote in the Court ofAppeal, “to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise ofchild safety” (2021 ONCA 614, 158 O.R. (3d) 481, at para. 79).

Worse still, it would invite wrongful abductions to the province for thepurpose of grounding jurisdiction there which, as Chamberland J.A. once wrote in a Quebec case, would encourage parents [translation]“to take the law into their own hands and go to another jurisdiction in the hope, whether conscious or not, that the courts there will bemore receptive” (Droit de la famille — 3451, [1999] R.D.F. 641 (Que. C.A.), at p. 647, cited with approval in a non-Hague Conventionabduction case in Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849, at para. 46).

While the trial judge did not find inthis case that the Mother’s disinclination to return was itself the cause of serious harm, it bears recalling that, in both Hague andnon-Hague Convention settings, the courts recognize that a parent should not be allowed to create a situation that is potentially harmfulto the child and then rely upon it to establish a risk of harm to the child (see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, atpara. 91). Finally, the Mother’s characterization of UAE law as an inherent source of serious harm must be rejected.

Expert evidenceaccepted by the trial judge led him to conclude that the best interests principle would apply to the ultimate custody decision before aUAE court. As Hourigan J.A. observed, “the rather provincial view that unless Ontario law is applied, children will suffer serious harm”could have the unwitting effect of turning Ontario into a haven for child abduction (para. 83; see also para. 136, per Brown J.A.,concurring). [11] The trial judge was called upon to decide the fact-specific, highly individualized question as to whether these twochildren would suffer serious harm if removed from Ontario.

He understood that the separation of children from their primary caregivertypically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not riseto the higher level of serious harm. Based on expert evidence relating to the differences between Ontario and UAE law, the judgedetermined the best interests of the two children will be the paramount consideration for determining custody in a UAE court.

In theabsence of a reviewable error, his decision that the serious harm threshold was not met is entitled to deference, as explained by themajority of the Court of Appeal.

The custody dispute — undecided here — should be resolved by the courts in the UAE, where thechildren have their closest connection. [12] Finally, I note the allegations of serious harm faced by the children in this case do not relate to domestic violence orabuse of any kind, but rather to the risk that the Mother, as primary caregiver, will be separated from the children should they be orderedhome to Dubai where she has no independent residency status and does not wish to reside. The trial judge was aware of the risk ofseparation due to the precariousness of the Mother’s residency status.

In making the return order, the judge took into accountundertakings made by the Father in a “with prejudice” settlement offer that would alleviate that precariousness and thereby facilitate theMother’s return with the children. [13] Insofar as the Mother’s residency status presents a risk that she will be separated from the children, the undertakingswould remove an obstacle to her return to Dubai, should she wish to do so.

While undertakings made by a left-behind parent before theOntario courts may present problems of enforceability before foreign courts, they are well-known and relied upon protective measures ininternational abduction cases around the world, including in this Court (Thomson v. Thomson, (SCC), [1994] 3 S.C.R.551, at p. 599). Here, the undertakings that are directed at easing the Mother’s precarious residency status were, for the trial judge,protective measures that promoted the best interests of the children in the event that the Mother did decide to return.

But at the end of theday, the trial judge found that whether or not the Mother returned, and independently of the undertakings, sending the children backhome to Dubai would not cause them serious harm within the meaning of s. 23 and would be in their best interests. In this case, the judgedid not rely on the view that the Mother’s conduct was the source of serious harm. Nor did he rely on the idea that the Mother wasobliged to accept the Father’s offer to secure her residency status in Dubai. [14] The terms of the Father’s offer also do more than just remove potential barriers to the Mother’s return.

AsHourigan J.A. observed, the Father has also promised that the Mother will remain the primary residential parent, and that majorparenting decisions will be made jointly by the two parents (para. 16). Further, the proposed settlement agreement would — if theMother accepted it — see her retain custody of the children until they are 18, whether or not she chooses to remarry (A.R., vol. XI, atpp. 310-11, cls. 3/1 and 3/2).

The trial judge found that these promises could be made part of an enforceable order in the UAE courts. [15] When the trial judge asked counsel to make submissions on how the Father’s undertakings could be incorporated intohis order, the Mother did not follow up on the invitation. The Father has renewed his settlement offer before this Court. In her writtenargument, the Mother acknowledges the viability of protective measures to address her circumstances when she states that the trial judgeshould have required more forceful undertakings to answer the uncertainties surrounding her status in Dubai.

Given that the judge tookthe Father’s undertakings into account but did not expressly record them in the order, I think it prudent to note that the order recognizesthat the undertakings would assist the Mother should she wish to return to Dubai with the children. I would thus propose to confirm thereturn order and, in dismissing the appeal, acknowledge the undertakings relied upon in first instance. II. Background

[ 16 ] The Father is a citizen of Pakistan. He has been living in Dubai since 2008. The Mother moved with her family from Pakistan to Ontario in 2005, where she lived until 2012. She is a citizen of Pakistan and of Canada. In 2012, the Mother and the Father were married in Pakistan and then moved to Dubai, where the Father works in the banking sector. While the Mother has worked sporadically in Dubai, she does not have an independent residency status there.

She has been sponsored by the Father throughout their marriage. [ 17 ] The parties have two children, a girl, Z. (born in 2016, aged four at trial) and a boy, E. (born in 2019, who was about one at trial). Both children are Canadian citizens but, until they were brought to Ontario in June 2020, they had always been resident in Dubai. The Mother is their primary caregiver. Mary, the family’s live-in nanny, contributed significantly to their upbringing. In Dubai, the family lived comfortably.

Their daughter Z. attended a well-regarded international school ( 2020 ONSC 7789 , 475 C.R.R. (2d) 1, at para. 30 ). [ 18 ] The parties experienced persistent marital difficulties. [ 19 ] On June 19, 2020, the Mother travelled to Ontario with Z. and E. They left Dubai with return air tickets, ostensibly for a trip to visit her family. The Father, who remained in Dubai, agreed to that trip. On or about July 2, 2020, the Mother informed the Father that she intended to stay in Ontario with the children and not return to Dubai.

The Father did not consent to the children remaining in Ontario and the Mother did not seek the authorization of a court to retain the children there. [ 20 ] Shortly after learning of the Mother’s intentions, the Father initiated proceedings in Ontario seeking an order under s. 40 of the CLRA for the return of the two children to Dubai.

He argued that the court should not take up jurisdiction to make a parenting order and that it was in the best interests of the children that all issues of custody and access be decided in the UAE. [ 21 ] In response, the Mother said that custody and access should be decided in Ontario under the CLRA . She claimed that it was in the best interests of the children to remain in Ontario with her. The Mother filed submissions requesting sole custody. She depicted the Father as ill-tempered and aggressive and asked that he be granted limited access to the children (trial reasons, at paras. 20 and 70).

The Mother also challenged the constitutionality of s. 40 para. 3 of the CLRA , arguing that it was ultra vires the legislative authority of the province and offended various guarantees under the Canadian Charter of Rights and Freedoms . [ 22 ] In July 2020, the Father initiated divorce proceedings in Dubai, in which the Mother did not participate. In March 2021, the Father obtained a divorce in Dubai. Under UAE law, divorced non-nationals are granted a one-year grace period during which they can remain in the country without a residency permit.

The Mother’s grace period had expired by the time the Court heard this appeal in April 2022. [ 23 ] Prior to the hearing of the s. 40 application, the Father presented a “with prejudice” settlement offer to the Mother’s counsel and filed it in court (trial reasons, at paras. 48-49). He made a series of undertakings that could be included in the s. 40 order “as a condition of [the Mother] returning” to Dubai with the children (para. 49). In the offer, he undertook to ensure her independent residency in Dubai, in particular, by purchasing property for her in her name.

He further undertook that the children reside primarily with her and that major decisions regarding them be made jointly. He wrote that the Mother would be free, should she wish, to contest the proposed custody and financial arrangements when the matter proceeded before the UAE court (see para. 49). The Father also incorporated by reference terms from a draft settlement agreement that he would propose to the UAE court (para. 49). In that draft settlement, the Father proposed to ensure that the Mother would retain custody of the children until they turned 18, whether or not the Mother chose to remarry.

The Father stated that these terms could be included in a consent judgment issued by a UAE court. The Mother did not respond to this offer. [ 24 ] At trial, both parties testified. The Father called an expert on family law in the UAE, Diana Hamade.

The Mother called two experts: Elena Schildgen, an expert on family law in the UAE, and Carol-Jane Parker, a registered psychotherapist, who provided evidence on the potential impact of separating young children from their primary caregivers. [ 25 ] The trial judge had to resolve two issues: first, whether he should exercise jurisdiction for a parenting order on the merits; and second, if the court did not take up jurisdiction, whether to order the return of the children to Dubai pursuant to s. 40 of the CLRA . III. Proceedings Below A.

Superior Court of Justice, 2020 ONSC 7789 , 475 C.R.R. (2d) 1 (Conlan J.) [ 26 ] The trial judge found that both the Mother and the Father were good, loving and caring parents, who never mistreated, abused or neglected their children (paras. 15 and 480). The Mother has always been the primary caregiver; Mary, the nanny, had helped substantially with the care of Z. and E. (paras. 262 and 291). [ 27 ] As witnesses, the Father was “significantly more credible” than the Mother, who “was not a credible witness” (paras. 255-56).

The Mother’s evidence at trial was incompatible with the final order she was asking the court to make. On the one hand, she testified that she supported co-parenting — even joint custody — and, at a minimum, “lots of access” for the Father to the children (para. 281). However, her draft final order sought what the judge described as “anything but lots of access” for the Father (paras. 281-82). The trial judge also noted inconsistencies in the Mother’s testimony (paras. 257-74 and 277-82).

He did not accept the Mother’s claims of incidents of physical aggression (paras. 272-74), or that she suffered religious discrimination and social isolation (para. 369), or her downplaying of the role that the long serving nanny, Mary, had with the children in Dubai. [ 28 ] The trial judge accepted the entirety of the expert evidence of the Father, Ms. Hamade, who was “very experienced in the courts in the United Arab Emirates” and “fluent in the Arabic language in which the original relevant legislation was written” (para. 297). He accepted only a limited amount of Ms.

Parker’s evidence, and some of the opinions expressed by the Mother’s expert, Ms. Schildgen, whose testimony on the state of UAE law was “devastating” for the Mother’s case (para. 293). The cross-examination of Ms. Schildgen “eviscerated the very underpinning” of the Mother’s case, as it established that the best interests of the children would be

the paramount consideration in any decision made regarding them in Dubai (para. 304). [ 29 ] The trial judge assessed the entirety of the testimony he had heard. On the basis of that assessment, he made “four key findings” from the expert evidence (para. 294). On the foreign law, the best interests of Z. and E. would be the paramount consideration in determining custody in Dubai, and the settlement proposed by the Father, if agreed to by the Mother, could be incorporated into a valid court order in Dubai and would be enforceable.

As to the consequences of a return of the children, he said the expert opinion established that children may face emotional and psychological repercussions from being separated from their primary caregiver. But as to what would occur with Z. and E., if separated from the Mother, the trial judge said that, based on the admissible evidence given by Ms. Parker, that specific effect remained unknown. [ 30 ] After having reviewed the applicable legal principles, the trial judge determined that he should not assume jurisdiction under ss. 22 or 23 of the CLRA or under his parens patriae jurisdiction.

He summarized his own findings in respect of the “serious harm” exception in s. 23 as follows: (

i) there is no evidence at trial that Z. and E. are in any risk of being physically harmed if they return to Dubai; (ii) there is some circumstantial evidence at trial (through Ms. Parker and her opinions about infants, generally) that Z. and E. could be at risk of emotional and psychological harm if they are returned to Dubai without [the Mother] ; (iii) there is no evidence at trial about the views and preferences of the children; (iv) there is a claim by [the Mother] that she will not return to Dubai if the children are ordered to return there; (

v) there is nothing else in the evidence at trial that this [c]ourt finds to be relevant to the serious harm assessment for Z. and E. . . .; and (vi) more specifically, considering the evidence of Ms. Hamade and Ms. Schildgen, there is a total absence of any reliable evidence at trial that the court system in Dubai will do anything other than (

a) determine custody in accordance with the best interests of Z. and E., if contested; and (

b) award custody to [the Mother], if contested, and (

c) approve the settlement proposal tendered by [the Father], if agreed to by the [M]other. [Emphasis in original; para. 366.] [ 31 ] He rejected the Mother’s argument that the children would suffer serious harm if they were returned because a court in Dubai would not “really employ a best interests of the child analysis” (para. 367 (emphasis deleted)).

He placed “very little weight” on the assertion by the Mother that she would not return to Dubai, citing his earlier conclusions on credibility (para. 368). [ 32 ] The trial judge accorded significant importance to the Father’s “with prejudice” offer (paras. 48-49) and was of the view that Dubai courts would approve and enforce the settlement proposal tendered by the Father, if agreed to by the Mother (para. 366(vi); see also paras. 294 and 301). His conclusion was based on the expert evidence of Ms.

Hamade, who, contrary to the Mother’s expert, was “intimately familiar with all aspects of [the Father’s] proposed settlement agreement” (para. 297; see also paras. 193-94). [ 33 ] While the trial judge recognized that young children, like Z. and E., can face negative emotional effects when separated from their primary caregiver (paras. 305 and 366(ii)), he determined that the anticipated risk did not rise to the required level of “serious harm”.

The trial judge concluded that he could not exercise jurisdiction under s. 23 of the CLRA because he was not satisfied that Z. and E. would suffer serious harm if they were removed from Ontario (para. 370). [ 34 ] Turning to the issue of whether the children should be returned to Dubai pursuant to s. 40 of the CLRA , he concluded that it was in the best interests of the children to do so, with or without the Mother (paras. 381 and 387).

Recognizing that s. 40 provided him with broad discretionary powers and that he was not bound to order the return of the children, the trial judge wrote that it was the “only appropriate order” (para. 384). Dubai was their real home. [ 35 ] The trial judge also dismissed the Mother’s challenge to the constitutional validity of s. 40 para. 3 of the CLRA (paras. 463-64). [ 36 ] He declared that the Mother had wrongfully retained the children in Ontario and ordered that they be returned to Dubai (para. 469).

Lastly, before the order was finalized, and before the children would return to Dubai, he offered all parties the opportunity to make further submissions on whether to include the Father’s settlement proposal in the order (para. 472). The Mother did not avail herself of this opportunity. B. Court of Appeal, 2021 ONCA 614 , 158 O.R. (3d) 481 (Lauwers, Hourigan and Brown JJ.A.) [ 37 ] A majority of the court dismissed the appeal, confirming the trial judge’s order to return the children to Dubai. Hourigan J.A. wrote reasons on the jurisdictional issues.

Brown J.A. wrote principally on the constitutional matters, which are not at issue before this Court. In dissent, Lauwers J.A. concluded the Superior Court of Justice had jurisdiction to make a parenting order based on s. 23 of the CLRA .

(1) Hourigan J.A. (Brown J.A. Concurring) [ 38 ] Recalling the applicable standard of review, Hourigan J.A. observed that the trial judge’s decision on serious harm was subject to deference on appeal. He dismissed the Mother’s argument on s. 23 as an inappropriate invitation to reweigh evidence settled at trial. The trial judge was aware of the Mother’s precarious residency status and the resulting risk of separation.

For Hourigan J.A., the trial judge was entitled to rely on the expert evidence and conclude that there were workable solutions for the Mother to obtain her residency, noting that the Mother declined to make submissions on the Father’s settlement offer. The trial judge considered the expert evidence and it was open to him to conclude that an agreement between the parties could be incorporated in a court order (C.A. reasons, at paras. 62-63). He disagreed with the dissenting judge’s view that the trial judge failed to consider the possibility that

the Father would renege on the offer and seek to limit the Mother’s access to the children. “Perhaps the one indisputable fact established on the record”, wrote Hourigan J.A., “was that the [Mother], not the [Father], sought to limit access to the children” (para. 71). [ 39 ] Moreover, the trial judge was aware of the inconsistencies between UAE and Canadian law, but properly focussed on whether these discrepancies would cause serious harm to the children. No reviewable error was shown.

To say that the discrepancies did ground jurisdiction in Ontario would send a message that parents in the UAE could remove children to the province and not be required to send them home (para. 83). [ 40 ] Hourigan J.A. then turned to the trial judge’s assessment of whether the separation of the children from their primary caregiver presented a risk of serious harm. Based on the expert evidence, the trial judge could fairly conclude that the children might be at risk of emotional or psychological damage if separated from the Mother, but that the threshold for serious harm had not been met (para. 91).

It would be mistaken to assume that whenever young children are separated from their primary caregiver there will always be a risk of serious harm, regardless of the circumstances of each case (paras. 92-94). This would serve to encourage child abduction, unduly focus the analysis on the preferences of the custodial parent (rather than the best interests of the child) and undermine the individualized nature of the serious harm inquiry. Again, Hourigan J.A. found no basis for disturbing the trial judge’s conclusion.

(2) Brown J.A. (Hourigan J.A. Concurring) [ 41 ] In concurring reasons, Brown J.A. dismissed the Mother’s grounds of appeal regarding the constitutional challenge.

Although this Court did not grant the Mother’s motion for leave to argue the constitutional issues, Brown J.A.’s explanation of the purposes of s. 40 of the CLRA is useful to the jurisdictional questions that remain in dispute. [ 42 ] Brown J.A. observed that return orders made under s. 40 para. 3 share the same purposes as those made under the Hague Convention , that is, “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 is most appropriate for the determination of custody and access” (para. 131).

Brown J.A. also noted that the scope of a best interests inquiry under s. 40 para. 3 differs from that undertaken when custody is at issue under s. 24 . When determining whether to return children to a different jurisdiction, a court must also consider the CLRA ’s other policy objectives, such as discouraging the abduction of children and avoiding concurrent exercises of jurisdiction (para. 186).

On the facts of this case, he was satisfied that the trial judge performed the multi-factored analysis required by s. 40 para. 3 of the CLRA , and that his findings of fact supported the conclusion that the return of the children to Dubai was in their best interests (paras. 189-90).

(3) Lauwers J.A. (Dissenting) [ 43 ] For Lauwers J.A., the trial judge erred, both in law and in fact, when he concluded that the return of the children would not expose them to serious harm. He would have applied the exception in s. 23 , set aside the return order and directed the Ontario Superior Court take up jurisdiction to make a parenting order. [ 44 ] In this case, the children will be separated from their Mother because of her precarious residency status in Dubai. The separation of young children from their primary caregiver constitutes, in itself, a risk of serious harm (para. 291).

The trial judge committed a palpable and overriding error when he wrote that the impact of the involuntary separation was “unknown”. This was precisely the issue the judge had to determine under s. 23 (para. 287). [ 45 ] The Father’s contingent undertakings do not effectively mitigate the Mother’s precariousness in Dubai where she has no independent legal right to reside (paras. 297-302). The trial judge failed to consider whether the undertakings would be enforceable in Dubai, and he could not rely on the Father’s credibility at trial to presume that he will honour the proposals he made (para. 302).

If the Father was to rescind the proposal, UAE law would govern the dispute between the parties. The automatic assignment of decision-making on the basis of gender under UAE law is a pronounced departure from Ontario’s understanding of the best interests of the child. Together, these interrelated factors amount to serious harm for the children (paras. 312-18). IV. Issues [ 46 ] The Mother’s appeal raises two principal issues. [ 47 ] First, she says the trial judge erred by declining to take up jurisdiction of the custody dispute on the merits.

He wrongly concluded that jurisdiction could not be founded on s. 23 of the CLRA . Specifically, he erred in ignoring factors that, if properly considered, would have satisfied the test for serious harm. [ 48 ] Second, she says the trial judge erred in ordering that the children should be returned to Dubai pursuant to s. 40 para. 3 of the CLRA . He wrongly rejected a broad-based best interests analysis that should guide the decision whether or not to issue a return order.

Further, the trial judge should have made an interim parenting order maintaining the children in her care until a mechanism was put in place to assure, in particular, that property was purchased in her name to guarantee her residency status. V. Analysis A.

Child Abduction in Ontario and Jurisdictional Issues [ 49 ] Whether or not the dispute involves a country that is a party to the Hague Convention , when a child is wrongfully removed from their habitual residence and brought to Ontario, courts will, as a general rule, decline to exercise jurisdiction over the merits of the custody dispute and order that the child be returned home. This reflects a legislative policy expressed in s. 19 for the whole of

Part III of the CLRA . Through this policy, the legislature seeks to discourage child abductions and the wrongful removal and retention of children to Ontario as well as to ensure that parenting matters are determined by the jurisdiction to which the child has a closer connection. [ 50 ] Ontario sees the policy of discouraging child abduction as aligned with the principle of the best interests of the child.

This finds expression in the province’s acceptance of Canada’s adherence to the Hague Convention, pursuant to s. 46(2) of the CLRA.The Hague Convention endeavours to protect children from the harmful effects of removal or retention of a child in breach of theleft-behind parent’s custody rights and also seeks to establish procedures to ensure the prompt return of children to the country of theirhabitual residence (see, e.g., Thomson, at pp. 575-76; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, atparas. 22-24; Droit de la famille — 15751, 2015 QCCA 638, at para. 17 ).

Parties to the Hague Convention recognize that theyshare the legal principle that “the interests of children are of paramount importance in matters relating to their custody” (HagueConvention,

preamble; see also Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, at para. 37). [51] When children are wrongfully removed from non-party states and brought to Ontario or another Canadian provinceor territory, the Hague Convention does not apply. To address international abductions falling outside the scope of the HagueConvention, Canadian provinces and territories have enacted various statutory regimes (see, e.g., Family Law Act, S.B.C. 2011, c. 25(British Columbia); Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c.

E-14 (Alberta); The Children’s Law Act, 2020,S.S. 2020, c. 2 (Saskatchewan); on the application of the Civil Code of Québec to non-Hague Convention cases, see Droit de la famille— 131294). In Ontario, the relevant rules are found in

Part III of the CLRA. [52] A review of legislation in this area reveals that, in general, Canadian provinces treat child abductions in non-HagueConvention cases in a manner methodologically comparable to the Convention: first, by declining to decide parental disputes on themerits with respect to children who do not habitually reside in the province or territory, and second, by favouring the return of children tothe jurisdiction of their habitual residence.

However, these similarities do not mean that an application brought under provinciallegislation is treated the same way as one brought subject to the rules of the Hague Convention (Geliedan, at paras. 26-34). [53] In Thomson, a Hague Convention case, this Court clarified that the legislation governing non-Hague and HagueConvention disputes “operate independently of one another” (p. 603; see also L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111, atpara. 46).

As pointed out by Laskin J.A. in Ojeikere, in Hague Convention cases, “Ontario courts can have confidence that whateverjurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests”, but they cannot have the same confidencein cases involving non-party jurisdictions (para. 60; see also Geliedan, at paras. 37-38 and 45). The Ontario legislature makes plain, ins. 19(

a) of the CLRA, that the ultimate determination of a parenting order on the merits will be made on the basis of the best interests ofthe child. To account for the fact that, in the non-Hague Convention context, Ontario courts do not benefit from the a priori assumptionthat the best interests of the child principle will be applied to the merits of the custody dispute in the foreign country, judges assessingpetitions for return to non-party jurisdictions must therefore consider the tenor of foreign law, generally through expert evidence adducedby the parties.

Nevertheless, in Thomson, La Forest J. explained that it is not improper to look at the Hague Convention for theinterpretation of domestic legislation, “since the legislature’s adoption of the Convention is indicative of the legislature’s judgment thatinternational child custody disputes are best resolved by returning the child to its habitual place of residence” (p. 603; for the CLRA, seeN. Bala, “O.C.L. v.

Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA”(2019), 38 C.F.L.Q. 301, at p. 308). [54] The children in this case have been removed from the UAE, a state which is not a party to the Hague Convention. Itfollows that this matter should be resolved on the basis of the general provisions of

Part III of the CLRA. B. The Statutory Scheme in Ontario [55]

Part III of the CLRA sets out the provisions concerning orders for decision-making responsibility and parenting time made by Ontario courts under the law of Ontario.[1] An Ontario court will not make a “parenting order” unless it has jurisdiction to do so.Section 22 concerns jurisdiction over a child habitually resident in Ontario or a child physically present in Ontario where, in particular,substantial evidence concerning the best interests of the child is available in the province.

Moreover, a court may exercise its parenspatriae jurisdiction, preserved by s. 69. [56] An Ontario court can also exercise its jurisdiction if the child would suffer serious harm as a result of being removedfrom Ontario. On appeal to this Court, the Mother relies only on s. 23 as the basis for the Ontario court’s jurisdiction: 23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary a parenting order or contact order with respect to achild if, (

a) the child is physically present in Ontario; and (

b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if, (

i) the child remains with a person legally entitled to decision-making responsibility with respect to the child, (ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or (iii) the child is removed from Ontario. [57] Within

Part III, ss. 40 to 46 of the CLRA bear on “Decision-Making Responsibility, Parenting Time and Contact —

Extra-Provincial Matters”.

Section 40, the provision upon which the Father relies in this case, applies to the application for the return of children wrongfully removed to or retained in Ontario when those children are not subject to the Hague Convention . It provides: 40 Upon application, a court, (

a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or (

b) that may not exercise jurisdiction under

section 22 or that has declined jurisdiction under

section 25 or 42, may do any one or more of the following: 1. Make such interim parenting order or contact order as the court considers is in the best interests of the child. 2. Stay the application subject to, i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or ii. such other conditions as the court considers appropriate. 3.

Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. [ 58 ] Finally, s. 19 states the purposes of the whole of

Part III — including the rules in s. 40 and the rules on jurisdiction, such as s. 23 : 19 The purposes of this Part are, (

a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children; (

b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, 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; (

c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and (

d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. [ 59 ] In sum, parents whose children have been abducted from a non-party country can apply for their return pursuant to s. 40 of the CLRA . Unless the abducting parent demonstrates that Ontario courts should make parenting orders on any one of the four bases outlined above (ss. 22(1)(

a) or (

b) or 23 , or parens patriae jurisdiction), the courts should decline to exercise jurisdiction with respect to a child ( Ojeikere , at para. 12 ; E. (H.) v. M. (M.) , 2015 ONCA 813 , 393 D.L.R. (4th) 267, at paras. 22-26 ). In this case, all that remains in dispute before this Court is whether s. 23 applies such that the Ontario courts should take jurisdiction over the merits of the dispute and, accordingly, refuse the Father’s application for the return of the children to Dubai. C. Jurisdiction and the Best Interests of the Child [ 60 ] This case invites the Court to clarify the role the best interests of the child principle plays in the

interpretation and application of the CLRA ’s jurisdictional rules. The Mother argues that where jurisdiction is premised on the “serious harm” exception,

judges must undertake a broad-based best interests analysis, having regard to the factors set out in s. 24(3) (A.F., at para. 10). The Fatheranswers that s. 23 already reflects an overriding concern for the best interests of children. He says that courts should not embark on abroad-based best interests analysis like the one conducted when deciding custody on the merits (R.F., at paras. 97-99). [61] The Mother is not mistaken to point to the importance of the best interests of the child principle.

As a general rule inCanadian family law, it is undoubtedly the case that the best interests of the children are the paramount consideration for all decisionsthat concern children and that best interests are measured from the child’s perspective (see, e.g., Young v. Young, (SCC),[1993] 4 S.C.R. 3; Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d)481, at para. 58; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76,at para. 9).

This is no less true in matters of international abduction, whatever the child’s country of origin, and whether or not the HagueConvention governs the dispute. [62] That said, the Mother’s submissions misapprehend the manner in which the CLRA would have the best interestsprinciple apply to ss. 40 and 23. The legislature’s overriding concern for upholding the best interests of the child principle is encoded inthe rules of the CLRA (Ojeikere, at para. 17).

Under the statutory scheme, the best interests test calls for a “differing application” inquestions of jurisdiction and determinations on the merits (C.A. reasons, at para. 187, per Brown J.A.). On the one hand, when Ontariocourts are called upon to make parenting or contact orders on the merits, the best interests of the child are to be comprehensivelyassessed in light of the factors listed in s. 24 of the CLRA.

On the other hand, when courts determine whether Ontario should declinejurisdiction in favour of foreign courts and return children, they are deciding, fundamentally, which court will decide on custody, notcustody itself.

I agree with Brown J.A.’s explanation: “[the children’s] immediate legal interests concern where the issue of their custodyshould be determined, not who should have custody”, he wrote, and “[t]he best interests test must be applied in that context” (para. 187). [63] As counsel for the Attorney General of Ontario explain in their helpful factum, the CLRA presumes, following anabduction, that the child’s best interests are aligned with their prompt return to the jurisdiction of their habitual residence unless there areexceptional circumstances that justify Ontario courts taking up jurisdiction (I.F., at para. 6). [64] The premise that the children’s best interests are favoured by their timely return to their home jurisdiction is sound.Child abductions harm children (Balev, at paras. 23-25; Ojeikere, at para. 16; A.

Grammaticaki-Alexiou, “Best Interests of the Child inPrivate International Law”, in Collected Courses of the Hague Academy of International Law (2020), vol. 412, 253, at p. 325). AsMcLachlin C.J. explained in Balev, “[t]he children are removed from their home environments and often from contact with the otherparents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, andsometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues.

None ofthis is good for children or parents” (para. 23). Moreover, resolving parenting issues in the children’s home jurisdiction fosters stability,while ensuring that custody will be determined by the authorities of the place with which the child has the closer connection, which is anobjective set out under s. 19 of the CLRA. Indeed, the jurisdiction from which the children have been removed is usually in the bestposition to determine which arrangement will be in their best interests (Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, atpara. 38; W.D.N. v.

O.A., 2019 ONCJ 926, 35 R.F.L. (8th) 190, at para. 51; Droit de la famille — 131294, at para. 110). This is explainedby the fact that “the courts of the child’s State of habitual residence . . . generally will have fuller and easier access to the informationand evidence” relevant to making a “comprehensive best interests’ assessment” (Hague Conference on Private International Law, 1980Child Abduction Convention — Guide to Good Practice,

Part VI, Article 13(1)(b) (2020) (“Guide”), at para. 15; see also J. M. Eekelaar,“International Child Abduction by Parents” (1982), 32 U.T.L.J. 281, at p. 301). [65] Consequently, at the preliminary stage of deciding jurisdiction, it is not the role of the judge to conduct a broad-based best interests inquiry, as they would on the merits of a custody application. Instead, the judge must determine if the court shouldexercise jurisdiction on the basis of any of the four grounds listed above.

If one of the four grounds is made out, the presumption that itis in the children’s best interests to decline jurisdiction and order their return will be rebutted. One such exceptional circumstance is thes. 23 basis for jurisdiction, where there is a risk of serious harm should the child be removed from Ontario. [66] Under s. 23 of the CLRA, the court may exercise its jurisdiction if the abducting parent proves, on a balance ofprobabilities, that the child would suffer serious harm if removed from Ontario.

If serious harm is established, it will be in the child’sbest interests for the Ontario court to assume jurisdiction and decide on custody on the merits. Simply put, the presumption in favour ofthe jurisdiction of habitual residence must give way to the imperative of protecting a child when serious harm is made out. [67] Thus, when deciding whether to exercise jurisdiction under s. 23, judges should not conduct a broad-based bestinterests analysis, but should rather conduct an individualized assessment of the risk of serious harm.

This is also in keeping with theexpeditious character of the proceedings associated with an application for a return order which, as this Court noted in Balev, serves toreduce the harmful effects of removal upon the child and the left-behind parent (paras. 25-27 and 88-89). I agree with the AttorneyGeneral of Ontario that replacing the serious harm threshold with a broad-based best interests assessment would conflate the question ofjurisdiction with the making of parenting orders and inappropriately dilute the threshold of serious harm (I.F., at paras. 3 and 17).

In sodoing, it would risk removing “the presumption of a timely return, resulting in Ontario courts exercising jurisdiction in most cases ofwrongful abduction or retention” (I.F., at para. 3). In this sense, the Mother’s argument that the s. 23 analysis requires a broad-based bestinterests analysis ignores the fundamental distinction between jurisdictional issues and determinations on the merits. It ultimatelyundermines the purpose of the serious harm exception, that is, to ensure decisions on the merits are made by the appropriate authority inaccordance with the best interests of the children (see s. 19(

a) and (b)). [68] There is, of course, no doubt that an individualized serious harm analysis may overlap with a full best interestsanalysis. For instance, many of the best interests factors enumerated under s. 24(3) of the CLRA, which are to be applied when “making aparenting order or contact order”, may also inform a serious harm inquiry, depending on the circumstances of a given case (see, e.g.,Ojeikere, at para. 107, per Miller J.A., concurring).

However, the best interests factors provided under s. 24 of the CLRA will only berelevant to the extent that they contribute to establishing serious harm, contrary to the broad-based exercise that s. 24 contemplates for“making a parenting order or contact order” (s. 24(1)). For example, the presence of “family violence”, a factor listed under s. 24(3)(j),could well be relevant to establish serious harm under s. 23 (see, e.g., S. (D.M.) v. S. (C.L.), 2016 BCSC 1551, 91 R.F.L. (7th) 202, atparas. 51-53; E. (H.), at paras. 122-25).

By contrast, a court may feel that it would be in the child’s best interests that they attend a highly

reputable school, but this factor would be unlikely to have weight in a serious harm inquiry. D. Serious Harm

(1) Defining the Scope of the Serious Harm Exception [69] The onus to prove that the child would suffer serious harm rests on the abducting parent (Onuoha v. Onuoha, 2021ONSC 2228, 54 R.F.L. (8th) 1, at para. 23, aff’g 2020 ONSC 6849, 49 R.F.L. (8th) 115). The burden is demanding. It is not enough toidentify a “serious risk” of harm: the court must be satisfied, on a balance of probabilities, that the harm itself would be serious in nature.This high threshold is necessary to ensure that the legislative purposes of discouraging child abductions and avoiding concurrentjurisdiction are properly served.

It is not enough to conclude that the return would have a negative impact on the child. [70] Serious harm inquiries are child-centered. As La Forest J. wrote in Thomson, building upon this Court’s decision inYoung, “from a child centered perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, itwould be irrelevant from whence it came” (p. 597). One implication of this focus is that, as a general rule, return orders should notbecome a vehicle for punishing the abducting parent.

The relevance of the abducting parent’s conduct is assessed from the child’s pointof view. [71] When conducting their s. 23 analysis, judges should consider both the likelihood and the severity of the anticipatedharm (Ojeikere, at para. 62). The measure of s. 23 is highly factual and, as the Court of Appeal pointed out, is discretionary, in the sensethat it involves the weighing of various factors (para. 52; Ojeikere, at para. 63; E. (H.), at para. 29; Volgemut v. Decristoforo, 2021ONSC 7382, at para. 99 ; Ajayi v. Ajayi, 2022 ONSC 5268, 473 D.L.R. (4th) 609, at para. 20).

Serious harm may be establishedthrough 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). [72] The analysis is also highly individualized. It should focus on the particular circumstances of the child, rather than ona general assessment of the society to which they are sent back. As was held in Onuoha (2021), regarding a request for return of twochildren to Nigeria, “[r]educed opportunities, undesirable social condit

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