COURT OF APPEAL FOR ONTARIO

CITATION:
N. v. F., 2021
ONCA 614

DATE: 20210914

DOCKET:
C68926

Lauwers,
Hourigan and Brown JJ.A.

BETWEEN

N.

Applicant
(Respondent)

and

F.

Respondent
(Appellant)

Fareen L. Jamal, Fadwa Yehia and Edward
C. Conway, for the appellant

Bryan R.G. Smith, Lindsey Love-Forester
and Andrew Lokan, for the respondent

Estée Garfin and Hera Evans, for the
intervener Attorney General of Ontario

Caterina E. Tempesta and Sheena Scott,
for the intervener Office of the Childrens Lawyer

Heard: January 21, 2021 by video
conference

On appeal from the order of Justice
Clayton Conlan of the Superior Court of Justice, dated December 15, 2020, with
reasons reported at 2020 ONSC 7789.

Hourigan J.A.:

A.

introduction

[1]

Trial courts are frequently called upon to make
difficult decisions about the future care of children due to the break-up of
parental relationships. Trial judges are parachuted into a family, made privy
to its most intimate details, and charged with determining the best course for
the children's future in the face of the parents opposing viewpoints. On
appeal, considerable deference is paid to those decisions because trial judges
have the opportunity to observe first-hand both the witnesses and the family
dynamic. This case raises squarely the role of appellate courts in reviewing
family law decisions.

[2]

The underlying facts of the dispute are largely
uncontroverted. The parties have been married since February 2012 and lived
together in Dubai, the United Arab Emirates (UAE), for eight years. They have
two children who are under the age of five. In mid-2020, the appellant advised
the respondent that she intended to take the children to Milton, Ontario, for a
month-long trip to visit her parents. The respondent consented to the trip, and
the appellant purchased return airline tickets. However, within two weeks of
arriving in Canada, the appellant told the respondent of her unilateral
decision to not return to Dubai with the children.

[3]

The appellant took no steps in the Ontario
courts to determine the jurisdictional issue that arose regarding the custody
and access of the children. As a result, the respondent was forced to commence
legal proceedings, first in Dubai and then in Ontario. The matter proceeded to trial
in the Ontario Superior Court. The trial judge issued a 181-page decision
wherein he found that Ontario did not have jurisdiction and ordered the
children returned to the UAE.

[4]

In his comprehensive reasons for judgment, the
trial judge found that the appellant was not a credible witness and disbelieved
many of her claims about why the children should remain in Ontario. He also
concluded that the appellants expert on the law of the UAE actually supported
the respondents position on a critical legal issue  i.e. that the courts in
Dubai looked at the best interests of the child in custody and access
matters. Further, the trial judge held that the appellants expert on the
childrens welfare was unable to opine on the issue of whether the children would
suffer serious harm if returned to Dubai without the appellant. All of these
findings were amply supported by the record and were open to the trial judge.

[5]

On appeal, the appellant invites us to retry the
case. However, she does not offer any persuasive reasons for why we should do
so, and cannot articulate any errors of law or palpable and overriding errors
of fact or mixed fact and law. Instead, she asserts that we should effectively
consider her case de novo and rule in her favour.

[6]

These reasons explain why I would decline to
interfere with the trial judges decision. When an appellate court trespasses
into the domain of a trial court and redoes its analysis, it runs the risk of
rendering a results-based decision. Such decisions do not serve the cause of
justice; they pervert it by creating uncertainty in the law for other similarly
situated parties. This concern is particularly acute in family law cases where
there may be sympathetic facts. Appellate courts must resist the temptation to
conduct what is essentially a second trial on appeal.

[7]

In my reasons, after briefly reviewing the facts
and issues in this appeal, I will first consider the appellants motion for
leave to tender fresh evidence, followed by the applicable standards of review.
My analysis will then be broken down into an assessment of whether the trial
judge erred in: (1) declining jurisdiction under s. 22 of the
Childrens
Law Reform Act
, R.S.O. 1990, c. C.12 (the
CLRA
); (2) declining
jurisdiction under s. 23 of the
CLRA
; (3) declining to exercise
parens
patriae
jurisdiction; and (4) making an order under s. 40 of the
CLRA
.
As I agree with the reasons of my colleague, Brown J.A., on the constitutional
grounds of appeal raised by the appellant, I will not consider those issues in
my reasons.

B.

facts

[8]

The appellant was born in Pakistan and
immigrated with her family to Canada in 2005 when she was 15 years old. She is
a Canadian citizen.

[9]

The respondent was born in Pakistan and is a
Pakistani national. He has lived in Dubai since January 2008, where he works as
an executive with a major international bank.

[10]

The parties were married in Pakistan in February
2012. The appellant joined the respondent in Dubai that same month, and the
parties resided there for the entirety of their marriage.

[11]

The parties daughter, Z., was born in Ontario
in November 2016 and is a Canadian citizen. Their son, E., was born in Dubai in
November 2019 and is also a Canadian citizen.

[12]

Neither the parties nor their children are UAE
nationals. The appellant has no independent right to reside in the UAE after
the parties' divorce. Under UAE law, the appellant has a one-year grace period
during which she can stay in the country without a residency permit.

[13]

Throughout the parties' eight-year marriage, the
appellant visited Ontario annually. On June 19, 2020, with the respondent's
permission, the appellant travelled to Ontario with Z. and E., intending to
visit her parents in Milton for one month. She purchased return airline tickets
and was supposed to be back in Dubai on or around July 19, 2020.

[14]

As noted, on or around July 2, 2020, the
appellant informed the respondent that she and the children would not return to
Dubai and that they would remain in Ontario. In September 2020, the appellant
cancelled Z.s enrollment in her Dubai school without the respondents
knowledge or consent. She subsequently enrolled Z. at an Ontario school.

[15]

The respondent commenced proceedings in the
Ontario Superior Court of Justice and sought an order under s. 40 of the
CLRA
,
returning the children to the UAE. The appellant responded by asking the court
to exercise its jurisdiction under ss. 22 or 23 of the
CLRA
and to
decide the matters of custody and access in her favour. She also raised a
constitutional issue with respect to the return order provision in s. 40(3) of
the
CLRA
.

[16]

Prior to trial, the respondent served a with
prejudice settlement offer that was disclosed to the trial judge. The terms of
that offer included: that the appellant would be the primary residential parent
and that major decisions would be decided jointly; that the respondent would
purchase a house in Dubai in the appellant's name to be held in trust for their
children; and that the respondent would secure a residency visa for the
appellant. If the appellant was not satisfied with the proposed custody and
support arrangements, the offer provided her with the alternative of pursuing
her remedies in a UAE court. Further, the offer specifically stated that its
terms could be incorporated into a s. 40 order under the
CLRA
.

[17]

The trial judge heard the evidence and
submissions of the parties over 11 days in November 2020. The Attorney General
of Ontario participated as an intervener on the appellants constitutional
application. Both the appellant and the respondent testified. The respondent
also called one of the parties mutual friends, their nanny, and Diana Hamade
(an expert on family law in Dubai) as witnesses on his behalf. The appellant
called another of their mutual friends, her mother, Elena Schildgen (an expert
on family law in Dubai), and Carol-Jane Parker (a psychotherapist), as
witnesses on her behalf.

[18]

The trial judge concluded that the respondent
was significantly more credible than the appellant. He also made the
following findings of fact:

·

The appellant has always been the primary
caregiver for the children.

·

The parties nanny helped a great deal with the
care of the children.

·

The parties never had an agreement or settled
intention to move to Canada.

·

But for trips abroad, the children have spent
their whole lives in Dubai.

[19]

With respect to the three expert witnesses, the
trial judge accepted all of the evidence of Ms. Hamade, some of the evidence of
Ms. Schildgen, and a limited amount of the evidence of Ms. Parker. He made the
following findings based on his consideration of the expert evidence:

·

A court in Dubai would determine custody by
making the best interests of the children its paramount consideration.

·

A court in Dubai would be able to incorporate,
approve, and enforce, as a valid order, the settlement proposed by the
respondent if agreed to by the appellant.

·

When infants are separated from their primary
caregiver, they can face adverse emotional and psychological impacts.

·

It is unknown whether the children in this case
would suffer serious harm from such potential adverse impacts.

[20]

Ultimately, the trial judge concluded that the
court could not assume jurisdiction over the parties dispute under ss. 22 or
23 of the
CLRA
. He also rejected the appellants argument that the
respondent had attorned to the jurisdiction of the Ontario courts.

[21]

Pursuant to s. 40 of the
CLRA
, the
trial judge was satisfied, on the balance of probabilities, that the children's
best interests would be served by their return to Dubai, with or without the
appellant, so that a court there could adjudicate the matters of custody,
access, and guardianship. He also found that the children had been wrongfully
retained in Ontario and that Dubai was their real home.

[22]

Despite the appellants request in her written
submissions, the trial judge declined to exercise the courts residual
parens
patriae
jurisdiction pursuant to s. 69 of the
CLRA
. He found that
it would be inexplicable to do so, given the findings and conclusions he had
already made in his reasons.

[23]

The trial judge distilled two main components to
the appellants constitutional argument: (1) that s. 40 is
ultra vires
the authority of Ontarios powers; and (2) that s. 40 contravenes various
protections afforded to the appellant and the children under the
Canadian
Charter of Rights and Freedoms
. He concluded that the vast weight of the
jurisprudence precluded him from finding in the appellants favour.
Accordingly, he dismissed the appellants constitutional challenge.

C.

issues

[24]

The issues raised on this appeal and my
conclusion on each issue may be summarized as follows:

(1)     Should the proposed fresh evidence
be admitted?

No. The evidence sought to be tendered is of
little or no relevance to the issues in this proceeding, and in the case of one
of the documents, could have been available at trial if the appellant had acted
with reasonable diligence. Therefore, the appellant has failed to meet the test
for the admission of fresh evidence on appeal.

(2)     What is the applicable standard of
review?

The jurisprudence establishes that significant
deference must be paid to family law decisions. It is not the role of appellate
courts to redo a trial judges analysis based on vague notions of what they
perceive to be a just result. When appellate courts stray from their mandate
and impermissibly interfere with lower court decisions, they run the risk of
rendering results-based rulings, which create uncertainty in the law.

(3)     Did the trial judge err in
declining jurisdiction under s. 22 of the CLRA?

No, s. 22 does not apply. The trial judge
correctly found that s. 22(1)(a) does not ground jurisdiction because the
children were not living in Ontario with both parents since their arrival here
in June 2020. Further, the appellant failed to establish that all six
enumerated criteria are met under s. 22(1)(b).

(4)     Did the trial judge err in
declining jurisdiction under s. 23 of the CLRA?

No. The trial judge carefully considered the
expert evidence regarding the law of UAE and made the correct decision about
its application in this case. He also reached conclusions available to him
regarding the respondents parenting plan and the issue of serious harm.

(5)
Did the trial judge err in
declining to exercise parens patriae jurisdiction?

The trial judge correctly applied the leading
authority on
parens patriae
jurisdiction and found no necessity for
the court to protect the children. There is no basis for appellate interference
with this highly discretionary judgment call.

(6)
Did the trial judge err in making
an order under s. 40 of the CLRA?

This issue was not raised in the Notice of
Appeal and was not argued by the appellant in her factum. Despite the fact the
Office of the Childrens Lawyer (OCL) raised the issue in its factum, it was
not properly before this court and I would decline to consider it.

D.

analysis

(1)

Fresh Evidence

[25]

The appellant seeks leave to file the following
fresh evidence: (1) an email from counsel for the respondent to counsel for the
appellant, dated December 18, 2020; (2) the affidavit of Sameh Abdou, an Arabic
language translator, sworn January 6, 2021; and (3) an email from counsel for
the appellant to counsel for the respondent, dated January 8, 2021. All of
these documents were created after the trial judge issued his reasons.

[26]

The law regarding the admission of fresh
evidence on appeal is well settled. In order to obtain leave to file such
evidence, the moving party must establish that the evidence: (a) is credible;
(b) could not have been obtained by reasonable diligence before the trial or
motion; and (c) would likely be conclusive of an issue on the appeal:
Ojeikere
v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 48;
Palmer v.
The Queen
, [1980] 1 S.C.R. 759, at p. 775.

[27]

Where the welfare of a child is at stake, the
case law allows for a more flexible approach to the test. However, that
increased flexibility does not render all proffered fresh evidence admissible.
The factors listed in the test remain relevant:
H.E. v. M.M.
, 2015
ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal refused,
[2016] S.C.C.A. No. 63.

[28]

In the email dated December 18, 2020, counsel
for the respondent advised counsel for the appellant that his client was likely
entitled to a significant costs award. He cautioned that the appellant should
not dissipate her assets. In the factum filed to support her fresh evidence
motion, the appellant says that this email is relevant because it demonstrates
the Fathers attempt to intimidate the Mother using financial threats.

[29]

It is difficult to conceive how this email could
meet the test for the admission of fresh evidence. If it were admitted, its
inclusion in the record would not be potentially conclusive on any issue in the
appeal. Instead, the email strikes me as the sort of communication that prudent
counsel would routinely send to protect a clients interest. Accordingly, it
has no relevance to this appeal.

[30]

The affidavit of Mr. Abdou is tendered to show
that the Arabic language has a means of expressing the term, best interests,
so the word, best, qualifies the word, interest. The appellant says Mr.
Abdous clarification is relevant because Ms. Hamade, the respondents expert
witness on UAE law, testified that the Arabic word for interest, being
maslahah
,
could not be combined with an Arabic word meaning, best, since
maslahah
already stood for the concept of best interest. The appellant submits that
she could not have foreseen this as an issue before trial as Ms. Hamade did not
include it in her written report.

[31]

Accepting for the moment that this evidence is
credible, I am not satisfied that leave should be granted for its admission. I
say this for two reasons. First, it could have been adduced through the
exercise of reasonable diligence. The respondent presented his case first, and
it would not have been difficult for the appellants counsel to raise the point
in cross-examination or to seek leave to file an expert report on the subject
at trial. Second, the experts on the law of the UAE were largely in agreement
about the role that best interests play in that countrys legal system.
Therefore, the affidavit would not be conclusive of any issue on the appeal.

[32]

In the email dated January 8, 2021, counsel for
the appellant wrote to counsel for the respondent seeking an update regarding
the Dubai proceedings initiated by the respondent. She sought, among other
things, copies of any orders made by the court and information on whether the
respondent had stayed the proceeding. In her factum filed on the fresh evidence
motion, the appellant argues that this email is relevant because courts in
Dubai often make obedience orders requiring the mother to return to the
household with a child (or children). The appellant submits that if the Dubai
courts did so in this case, it demonstrates the severe disability that the
Mother suffers under UAE law.

[33]

I would decline to grant leave to file this
evidence as I am not satisfied that it would be conclusive of any issue in the
proceeding. The actual evidence proposed to be tendered is a short email from
counsel for the appellant, asking the respondent a series of questions. The
email adds nothing to the court's analysis. Further, there is no evidence
before us indicating that the type of obedience orders referred to by the appellant
has been made against her.

[34]

For these reasons, I would decline to grant
leave to the appellant to file any of the proposed fresh evidence.

(2)

Standards of Review

[35]

At the outset of my analysis of the grounds of
appeal, it is necessary to consider the jurisprudence regarding the applicable
standards of review.

[36]

In
Hickey v. Hickey
, [1999] 2 S.C.R.
518, the Supreme Court considered the standard of review in family law cases
pertaining to support. LHeureux-Dubé J., writing for the court, stressed, at
para. 12, the public policy reasons that animate significant deference in the
review of such decisions:

[12] There are strong reasons for the
significant deference that must be given to trial judges in relation to support
orders. This standard of appellate review recognizes that the discretion
involved in making a support order is best exercised by the judge who has heard
the parties directly. It avoids giving parties an incentive to appeal judgments
and incur added expenses in the hope that the appeal court will have a
different appreciation of the relevant factors and evidence. This approach
promotes finality in family law litigation and recognizes the importance of the
appreciation of the facts by the trial judge. Though an appeal court must
intervene when there is a material error, a serious misapprehension of the
evidence, or an error in law, it is not entitled to overturn a support order
simply because it would have made a different decision or balanced the factors
differently.

[37]

The reasoning of LHeureux-Dubé J. was applied
in the context of a custody order in
Van de Perre v. Edwards
, 2001 SCC
60, [2001] 2 S.C.R. 1014. In that case, the court considered the finding of the
British Columbia Court of Appeal that the principles in
Hickey
do not
fully apply in custody cases and that appellate courts should be free to
reweigh the evidence on the grounds of protecting the best interests of a
child, even in the absence of a material error. Bastarache J. rejected this
approach, at para. 16:

[16] In the present case, the Court of Appeal
considered the decision of the trial judge and decided that it was within the
scope of review to examine all the evidence and determine whether the trial
judge weighed the evidence improperly. It is in reconsidering the evidence that
the Court of Appeal determined that the trial judge had made material errors.
As discussed above, this is not the proper method of appellate review. If the
Court of Appeal had followed the appropriate method, it would not have reconsidered
the evidence and found what it described as material errors in Warren J.s
decision. There was no scope for appellate intervention in this case.

[38]

In my view, the policy rationales that support
deference in the context of reviewing custody and support orders apply with
equal force to a consideration of whether an Ontario court should assume
jurisdiction or make a return order under the
CLRA
. The analysis of
those issues involves the application of evidence to a series of factors
identified in the legislation. Absent a legal error or a palpable and
overriding error of fact or mixed fact and law, it is not the place of an
appellate court to redo a lower courts analysis to achieve a result that it
deems to be in the best interests of the child.

[39]

Proper adherence to the standard of review helps
enforce a discipline in appellate courts that guards against the potential of
rendering results-based decisions, which do not adhere to the law and create
uncertainty for other similarly situated parties. This danger is particularly
pronounced in family cases where there may be sympathetic facts, and the
appellate court may have a different view on what it believes is the fairest
result.

[40]

In the present case, there is also an issue
regarding the proper interpretation of foreign law. The appropriate standard of
appellate review in Ontario on questions of foreign law is correctness:
Grayson
Consulting Inc. v. Lloyd
, 2019 ONCA 79, 144 O.R. (3d) 507, at para. 29.

[41]

In summary, the identification and faithful
application of the correct standard of review are vital in ensuring that
appellate courts do not stray from their proper role and enter the domain of
trial judges. When an appellate court moves beyond its function as an
error-correcting institution and engages in the determination of factual issues
and issues of mixed fact and law, the justice of the case is imperilled.

(3)

Section 22 of the
CLRA

[42]

The legislature has defined the circumstances in
which an Ontario court will assume jurisdiction for the purposes of making a
parenting or contact order in s. 22 of the
CLRA
. Before considering
that section, it is helpful to consider this courts guidance in
Ojeikere
regarding the public policy purposes underlying s. 22. Laskin J.A., writing for
the court, stated:

[13] All four provisions are found in Part III
of the
CLRA
. Section 19 sets out the overall purposes of Part III. In
substance, there are five purposes:

·

To ensure that custody and access applications
will be determined on the basis of the best interests of the children;

·

To avoid the concurrent exercise of jurisdiction
by tribunals in different places;

·

To provide that, save in exceptional
circumstances, an Ontario court will decline jurisdiction where custody and
access are more appropriately determined by a tribunal having jurisdiction in
another place with which the child has a closer connection;

·

To discourage the abduction of children as an
alternative to the determination of custody rights by due process; and

·

To provide for the more effective enforcement of
custody and access orders and for the recognition and enforcement of these
orders made outside Canada.

These general purposes set out in s. 19 must
guide the interpretation and application of ss. 22 and 23, the provisions in
issue on this appeal.

[
14
] The specific purposes
of s. 22 include deterring parties from shopping for a forum to decide their
custody dispute, and importantly, discouraging child abduction. See
Brooks
v. Brooks
(1998), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.

[
15
] Neither s. 22(1)(a) nor
s. 22(1)(b) is itself a best interests test  neither provision asks the court
to consider the childs needs and circumstances as set out in s. 24(1) and the
catalogue of best interests considerations listed in s. 24(2)[.]

[
16
] But the policy behind
discouraging child abduction and requiring a summary return to habitual
residence does reflect the Legislatures overriding concern with a childs best
interests. Child abductions ordinarily harm children, undermine the important
goal of maximizing contact between a child and both parents, and often promote
a parents interests over that of the child. [Footnotes omitted.]

[43]

In considering whether Ontario may assume
jurisdiction to determine a parenting or contact order, the court will not
conduct a best interests analysis. Instead, it will focus on the specific
factors identified in s. 22 that allow it to exercise jurisdiction, while being
mindful of the public policy purposes underlying this part of the
CLRA
,
including the discouragement of international child abductions.

[44]

With that background in my mind, I move to a
consideration of s. 22, which provides:

Jurisdiction

22
(1)
A court shall only exercise its jurisdiction to make a parenting order or
contact order with respect to a child if,

(a)
the child is habitually resident in Ontario at the commencement of the
application for the order; or

(b)
the child is not habitually resident in Ontario, but the court is satisfied
that,

(i) the child is physically
present in Ontario at the commencement of the application for the order,

(ii) substantial evidence
concerning the best interests of the child is available in Ontario,

(iii) no application respecting
decision-making responsibility, parenting time or contact with respect to the
child is pending before an extra-provincial tribunal in another place where the
child is habitually resident,

(iv) no extra-provincial order
respecting decision-making responsibility, parenting time or contact with
respect to the child has been recognized by a court in Ontario,

(v) the child has a real and
substantial connection with Ontario, and

(vi) on the balance of
convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual residence

(2) A child is habitually resident
in the place where the child resided in whichever of the following
circumstances last occurred:

1. With both parents.

2. If the parents are living
separate and apart, with one parent under a separation agreement or with the
consent, implied consent or acquiescence of the other or under a court order.

3. With a person other than a
parent on a permanent basis for a significant period of time.

Abduction

(3) The removal or withholding of a
child without the consent of all persons having decision-making responsibility
with respect to the child does not alter the habitual residence of the child
unless there has been acquiescence or undue delay in commencing due process by
the person from whom the child is removed or withheld.

[45]

The appellant argued unsuccessfully at trial
that the court should assume jurisdiction under s. 22. The trial judge reasoned
that s. 22(1)(a) was inapplicable because the children had not been living in
Ontario with both of their parents since their arrival in June 2020. The
appellant does not challenge that finding on appeal.

[46]

The focus of the appellants submissions on this
ground of appeal is that the court erred in not assuming jurisdiction under s.
22(1)(b). To find jurisdiction under this subsection, the appellant had the
onus of establishing that all six enumerated criteria were met on a balance of
probabilities:
Wang v. Lin
, 2013 ONCA 33, 358 D.L.R. (4th) 452, at
para. 50. Her failure to meet her onus on any one of the factors prohibits her
from relying on this subsection.

[47]

The trial judge found that the appellant was
unable to establish the following four factors: (1) that substantial evidence
concerning the best interests of the children is available in Ontario; (2) that
there was no custody proceeding pending in another jurisdiction; (3) that the
children have a real and substantial connection to Ontario; and (4) that the
balance of convenience favours Ontario taking jurisdiction.

[48]

For the purposes of the appeal, I will only
consider the issue of whether there was substantial evidence in Ontario
concerning the best interests of the children, as required by s. 22(1)(b)(ii).
In reaching his conclusion that the appellant had not met her onus on this
point, the trial judge noted, among other things, that the children had only
lived in Ontario for six months, that neither the parties nor the children had
spent significant time in Ontario during the period from February 2012 to June
2020, and that nobody in Ontario testified except for [the appellant] and her
mother. These findings were well-grounded in the evidence and free of error.
They are immune from appellate interference.

[49]

Given that the criterion under s. 22(1)(b) are
cumulative, and that the appellant failed to prove the availability of
substantial evidence concerning the best interests of the children in Ontario,
this ground of appeal must fail. It is unnecessary to consider the appellants
other arguments under s. 22.

(4)

Section 23 of the
CLRA

[50]

Much of the argument on the appeal focussed on
the trial judges s. 23 analysis. That section provides:

Serious harm to child

23 Despite sections 22 and 41, a
court may exercise its jurisdiction to make or vary a parenting order or
contact order with respect to a child 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.

[51]

Since the parties children were physically
present in Ontario, s. 23(b) permitted the trial judge to exercise jurisdiction
over their custody or access if satisfied, on a balance of probabilities, that
the children would suffer serious harm should they be returned to Dubai.

[52]

A trial judges exercise of s. 23 is
discretionary. In
Ojeikere
, at para. 64, Laskin J.A. provided a list
of potentially relevant factors that a court could use to determine whether a
child will suffer serious harm. He considered: (1) the risk of physical harm;
(2) the risk of psychological harm; (3) the views of the children; and (4) the
mothers claim that she would not return to her home country, even if the
children were required to do so.

[53]

The trial judge characterized the appellants s.
23 argument as the most legitimately debatable point at trial. He applied the
factors identified in
Ojeikere
and found:

·

No evidence that the children were at risk of
being physically harmed if they returned to Dubai.

·

Some circumstantial evidence that the children
could be at risk of emotional and psychological harm if they returned to Dubai
without the appellant.

·

No evidence that the children had specific views
or preferences as to with whom or where they resided.

·

There was an absence of reliable evidence that
the court system in Dubai will do anything other than determine custody in
accordance with the best interests of the children if contested, award custody
to the appellant if contested, and approve the settlement proposal tendered by
the respondent if agreed to by the appellant.

[54]

The appellant submits that the trial judge erred
in his analysis of serious harm. Specifically, she says that he erred in his
consideration of: (a) her uncertain residential status in Dubai; (b) the
respondents proposed settlement offer and consent order; (c) the law of the
UAE that she says disadvantages her; (d) the adequacy of the respondents
parenting plan; and (e) the nature of the potential harm to the children.

[55]

My colleague, in his dissent, accepts the
appellants position on s. 23 and would accordingly allow the appeal. He finds
that the trial judge made a palpable and overriding error because he failed to
properly assess the harm of an involuntary separation of the children from the
appellant. Further, with regard to the nature of the harm, my colleague says
that the trial judge should have found a risk of serious harm despite the fact that
the appellants expert could not opine on the specific risk to Z. and E.

[56]

In this section of my reasons, I will explain
why I would not interfere with the trial judges conclusion on the issue of
serious harm. In short, the appellants submission amounts to an invitation to
reweigh the evidence and draw different conclusions than the trial judge did.
As discussed above, that would be an impermissible intrusion into the role of
the trial judge.

[57]

Below, I will consider each of the appellants
arguments with respect to the trial judges alleged errors in his s. 23
analysis. Before doing so, I note the following comments from Harvison Young J.
(as she then was) in
Bolla v. Swart
, 2017 ONSC 1488, 92 R.F.L. (7th)
362, regarding the context of s. 23 and its onus:

[37] The context of s. 23 is important to
understand. While this matter is not governed by the
Hague Convention
,
the principle underlying ss. 22 and 23 is similar: children should be protected
from the harmful effects of their wrongful removal from their habitual
residence, and their prompt return to the state of their habitual residence
should be ensured.

[38] This is the general rule. It reflects the
presumption that it is generally in the best interests of the child that issues
relating to custody and access be adjudicated in the jurisdiction where they
have habitually resided. For that reason, the parent who has removed or
wrongfully retained the children from their place of habitual residence has the
burden of establishing the serious harm that permits the Ontario court to
accept jurisdiction in such a case: see
Rajani v. Rajani
, 2007 CanLII
38126 (ON SC), at para. 90; and
Ndegwa v. Ndegwa
(2001), 20 R.F.L.
(5th) 118 (Ont. S.C.), at para. 30.

(a)

Residential Status

[58]

According to the appellant, the trial judge
erred in placing insufficient weight on the fact that the Mother has no
automatic legal right to reside in the UAE. This is one of the many examples
where the appellant is asking this court to reweigh the evidence, rather than
identifying an error that this court must correct.

[59]

Regardless, the trial judge considered the
evidence of the respondents expert on the law of the UAE, Ms. Hamade, and
determined that the appellant had various options available to her.
Specifically, the trial judge summarized Ms. Hamades evidence as being that
after the divorce, the appellant would be granted a one-year grace period
during which she could remain in Dubai without a residency permit. Ms. Hamade
testified that when the one-year period was over, the appellant could continue
to stay in the country through (1) sponsorship by her ex-husband, (2) the
purchase of a property, including a property held in trust, or (3) the use of a
"free zone," which involves the rental of an office.

[60]

On the issue of UAE law, the trial judge
preferred the evidence of Ms. Hamade over that of Ms. Schildgen. He explained
why he reached that conclusion, at paras. 295-297, as follows:

[295] Having conducted hundreds of hearings
over the last nine years, many of them with expert evidence, I must say that I
was very impressed with the evidence of Ms. Hamade.

[296] She was precise in her evidence. She did
not waver in her evidence. She was not impeached in cross-examination, except
in one instance where Mr. Conway put to her an opinion that she rendered in
another case; to which she replied, satisfactorily in my view, that there were
significant factual differences between that case and ours. She delivered her
evidence in a straightforward, unbiased, sharp, and articulate manner.

[297] Further, Ms. Hamade is very experienced
in family law (more so than Ms. Schildgen), and very experienced in the courts
in the United Arab Emirates (Ms. Schildgen is not), and fluent in the Arabic
language in which the original relevant legislation was written (Ms. Schildgen
is not), and intimately familiar with all aspects of N.s proposed settlement
agreement (dated October 30, 2020), including trusts (Ms. Schildgen is not).

[61]

An appeal court has limited scope to intervene
on a trial judges interpretation of expert evidence. Krever J.A., writing for
the court in
Larche v. Ontario
(1990), 75 D.L.R. (4th) 377 (Ont.
C.A.), leave to appeal refused, [1991] S.C.C.A. No. 25, described it this way:

[3] Before addressing the appellant's
submissions, two general points may usefully be made with respect to the issue
of liability of both the hospital and the architects. First, the submissions
relate to findings of fact with which this court can interfere only if the
appellant can show that they reflect palpable and overriding errors on the part
of the trial judge. Second, in general, the appellant's submissions seek to
have this court accept the opinions of expert witnesses that the trial judge
rejected and reject the opinions of expert witnesses that the trial judge
accepted. It would require the existence of extraordinary circumstances before
this court would do so, given the special position a trial judge is in who saw
and heard the witnesses and gave reasons for the findings made.

[62]

The trial judge accepted the evidence of Ms.
Hamade as he was entitled to do. Further, the respondent had agreed to
incorporate, as undertakings in a s. 40 order, the terms of his offer to
settle, which included securing a residency visa for the appellant. The trial
judge, in his reasons, invited appellants counsel to make further submissions
regarding the incorporation of the respondents settlement proposal in his
order. This direction was consistent with what the court did in
Bolla
,
where the order incorporated the undertakings given by the respondent father
regarding the return of the children:
Bolla
, at paras. 140-144. The
appellants lawyer rejected the offer and advised the court that his client did
not seek further direction from the trial judge.

[63]

Clearly, the trial judge was aware of the
concern associated with the appellants residency status, but he accepted the
evidence of Ms. Hamade that there were workable solutions to resolve the issue.
He even invited counsel to make submissions so that the solution could be
incorporated into his order. The appellant chose not to avail herself of that
opportunity. I fail to see any error in the trial judges treatment of this
issue. I disagree with my colleagues suggestion that the respondent has not
proven his ability to mitigate Mothers precarious residency status. That
reverses the onus, which was on the appellant to prove serious harm.

(b)

Settlement Offer and Consent Order

[64]

As noted, in his reasons, the trial judge
referenced the with prejudice settlement offer served by the respondent.
Based on the testimony of Ms. Hamade, he found that an agreement between the
parties could be incorporated into an order of a Dubai court and would be
enforceable by the court.

[65]

The appellant submits that the settlement offer
is disadvantageous to her because she faces the application of UAE law (which
is different from Ontario law), both in terms of enforcing the agreement and in
terms of contesting the agreement if she disagrees with the provisions. The
appellant also argues that the trial judge unreasonably assume[d] [that] there
will be no future disagreement regarding parenting issues and thereby fail[ed]
to assess the risk of
future
harm (emphasis in original).

[66]

The appellants concerns are not consistent with
the expert testimony. Ms. Hamade testified that the UAE courts respect
settlements and are happy to make them a part of binding court orders. She also
gave evidence that if a party wants to alter an agreement incorporated into an
order, they must show an impactful change of circumstances. According to Ms.
Hamade, the primary consideration on such an application will be the childrens
best interests. Ms. Schildgen, the appellants expert, also testified that any
dispute about changing the terms of an order would be resolved on the basis of
the childrens best interests.

[67]

The trial judge carefully considered the expert
evidence and reached the following findings, at paras. 301-305, regarding the
best interests of the children and the enforceability of a settlement
agreement:

[301] It is inconceivable that this Court
would find that Ms. Schildgens evidence supports a conclusion that (i) best
interests of the child does not trump all else in child custody law in Dubai,
or that (ii) settlement agreements like the one proposed by N. in this case are
not enforceable as valid court orders in Dubai.

[302] For this Court to draw either of those
conclusions in favour of the mother, this Court would have to cherry-pick to a
degree that is grotesque, and I concur with Mr. Conway that this Court should
avoid doing so. I would have to completely ignore the entire cross-examination
of Ms. Schildgen at trial, by finding, I suppose, that she must have been
confused or misspoke multiple times or something, and then I would have to
accept just the direct evidence of Ms. Schildgen, including her report, and
then finally I would have to reject entirely the evidence of Ms. Hamade.

[303] I decline to do so. I commend Ms.
Schildgen for being honest in cross-examination. I do not think that she was
confused at all. I appreciate her upholding her duties as an unbiased,
professional expert witness. She was being fair to this Court and non-partisan
to make sure that I was not left with the impression that best interests of
the child is a concept that means virtually nothing in Dubai. In fact, it
means everything.

[304] Let me be frank, with respect. The
cross-examination of Ms. Schildgen at trial eviscerated the very underpinning
of the mothers case (apart from the Constitutional question), that is that the
children cannot be returned to Dubai because this Court can have no confidence
that any decision made there regarding their welfare will be based, as the
paramount consideration, on their best interests. Ms. Schildgens evidence in
cross-examination points precisely to the opposite conclusion. [Emphasis in
original.]

[68]

Those very clear findings were made by the trial
judge, who had the opportunity to observe the testimony of the expert
witnesses. There is no legitimate basis for this court to interfere.

[69]

My colleague, in his dissent, takes a different
approach to the trial judges reliance on the settlement offer. He suggests
that the respondent could renege on his offer, and that consequently, there is
no guarantee the offer will find its way into a Dubai court order. According to
the dissent, the failure of the trial judge to consider this possibility was an
error that influenced his s. 23 analysis and gave him a false sense of security
regarding what would happen if the children returned to Dubai.

[70]

This criticism is unfounded. I do not doubt that
the trial judge recognized the potential risk of the respondent resiling from
his commitment and attempting to limit the appellants access to the children.
However, the context of the proceeding has to be considered.

[71]

Perhaps the one indisputable fact established on
the record was that the appellant, not the respondent, sought to limit access
to the children. The appellant unilaterally retained the children in Ontario,
and, according to the trial judge, in her draft final order, she proposed
anything but lots of access.

[72]

In contrast, there was nothing in the record to
suggest that the respondent was intent on limiting the appellants interaction
with the children. As a sign of his good faith, the respondent proposed
incorporating the terms of his settlement offer, which provided that the
appellant would be the primary residential parent for the children and that
major decisions would be decided jointly, into an Ontario court order. That
offer, which the trial judge was willing to incorporate into his s. 40 order,
was rejected by the appellant. Further, the trial judge made an explicit
finding that the respondent was credible and that the appellant was not.

[73]

It is also essential to consider whether this
type of analysis properly reflects the role of an appellate court in reviewing
a decision under s. 23 of the
CLRA
. There is no genuine legal or
factual error identified. Instead, the concern expressed by the appellant is
that the trial judge did not draw the same inference as my colleague would from
the evidence. With respect, that is not our role on appeal. Moreover, the
concern that my colleague expresses about the respondent possibly resiling from
his settlement offer is speculative.

(c)

UAE Law

[74]

The appellant submits that the trial judge erred
in his assessment of UAE law. She argues that he should not have relied solely
on Ms. Hamades evidence, which she says is contradicted by the plain wording
of the relevant UAE legislation, the
Personal Status Law No. 28
("PSL"). In addition, the appellant points to gender-based inequities
in the law, specifically that mothers can never be guardians under the PSL and
that when E. turns 11 and Z. turns 13, the appellant could potentially be
stripped of her role as custodian. The appellant ultimately asserts that since
the UAE law disadvantages her, and that a risk of harm to a primary caregiver
is [a] risk of harm to a child, the trial judges errors warrant appellate
intervention.

[75]

I would not give effect to these arguments. As
noted above, the expert evidence on the law of the UAE was carefully considered
by the trial judge. He explained why he preferred the evidence of Ms. Hamade
over the evidence of Ms. Schildgen.

[76]

Regarding the appellants complaint about the
trial judges alleged failure to account for the plain wording of the PSL, the
trial judge was permitted to accept Ms. Hamade's evidence that the legislation
is read with regard to the relevant jurisprudence interpreting the same. This
is hardly a novel concept in our domestic law, and it is unsurprising that the
UAE utilizes a similar approach to statutory interpretation. In my view, the
trial judge reached the correct conclusion on how to interpret the PSL, and
there is no basis for appellate interference.

[77]

I am also satisfied that the trial judge was
aware of the problematic aspects of UAE law and its inconsistencies with
Canadian values. However, the trial judge properly focussed on the issue before
him, being whether the application of UAE law would result in serious harm to
the children.

[78]

In his dissent, my colleague states that if UAE
law were applied, then the "appellant would not have the incidents of
custody contemplated by Ontario law, to the detriment of the children."
His concern appears to be that under UAE law, for the initial parenting
arrangements, the appellant will be appointed custodian, which amounts to
day-to-day custody, and the respondent will be granted guardianship, which
gives him big picture decision-making authority. According to my colleague,
this is detrimental to the children when compared to ss. 19 and 20 of the
CLRA
,
which emphasize the sharing of decision-making responsibility between both
parents.

[79]

It is worth reiterating at this juncture that
the role of the court under s. 23 is to determine whether the party invoking
the section has established, on a balance of probabilities, that a child will
suffer serious harm if an Ontario court does not assume jurisdiction. For the
law of the UAE to qualify as serious harm, that harm would have to be clearly
established on the evidence. It is not enough to point to differences in the
law and suggest that a parent may have different rights in a foreign
jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the
CLRA
,
which was implemented to protect the safety of children, must not be reduced to
a means for Ontario courts to prefer this provinces system of justice over
those of foreign jurisdictions under the guise of child safety.

[80]

Under the law of the UAE, on the initial
determination of custody, the appellant would actually have an advantage over
her position than if this case were determined in Ontario. In Dubai, the usual
order would be that she is appointed custodian and thus granted primary
physical custody of the children and the power to make day-to-day decisions on
their behalf. It is true that the respondent would ordinarily be appointed as
guardian and given the power to make significant decisions. However, the trial
judge examined the nature of the parenting arrangements that would be put in
place if the parties were obliged to follow UAE law and did not come to an
agreement on how the children would be raised. Specifically, he examined the
rights of the appellant in that scenario and concluded, at para. 378, as
follows:

[378] I pause here to note that I disagree
with the submission that F. will be deprived of decision-making authority in
Dubai. I accept the evidence of both Ms. Hamade and Ms. Schildgen that F. will
be granted custody of the children in Dubai, and that means day to day care and
the decision-making authority that goes along with that. Further, I accept the
evidence of Ms. Hamade that the rights of the custodian are not subject to
those of the guardian. Besides, the fact that the guardian, N., is able to make
certain decisions about the children is of no consequence here, in terms of
prejudice to F., because the evidence demonstrates that things like education
and religion for Z. and E., including the place of schooling for Z., were not
subjects of dispute between the parties by the time that F. left with the
children in June 2020. There is simply no basis in the evidence at trial to
conclude that the custodial rights of F. in Dubai will be some illusory concept
that will not have any real meaning to it. I find otherwise.

[81]

It is evident from the foregoing that the trial
judge turned his mind to the nature of the parenting arrangement for this
family if the parties did not reach an agreement. He correctly concluded that
the appellant would have physical custody of the children and would make the
day-to-day decisions regarding their welfare. With respect to the respondent's
decision-making rights, the trial judge ascertained that in the circumstances
of this family, they would have limited impact, as the evidence indicated the
parties agreed on significant issues like schooling and religious instruction.
Further, as noted above, the trial judge understood that any changes after the
initial order for custody would be determined according to the children's best
interests.

[82]

In my view, the trial judge correctly concluded
that the application of UAE custody law would not harm the children. Those
conclusions were well-rooted in the evidence and open to him. Again, there is
no basis for appellate interference.

[83]

I also observe that if my colleagues analysis
were to be followed, the precedent established would be concerning. Such a
decision would send a message to parents living in the UAE that if they
unilaterally come to Ontario with their children, they will not be required by
the Ontario courts to send their children home. Instead, they can avoid the s.
22 analysis and reduce the s. 23 analysis to a question of whether they would
be subject to the law of the UAE. Thus, the underlying objective of the
CLRA
to reduce child abductions would be jettisoned in the wake of the rather
provincial view that unless Ontario law is applied, children will suffer
serious harm. As a matter of comity, public policy, and common sense, such a
precedent leaves much to be desired.

(d)

Respondents Parenting Plan

[84]

The appellant argues in her factum that the
respondent had the onus of establishing that no serious harm would result if he
became the primary caregiver for the children. No authority is cited for this
proposition, likely because it is incorrect. Section 23 puts the onus on the
appellant to establish, on a balance of probabilities, serious harm:
Bolla
,
at para. 38.

[85]

According to the appellant, the respondents
parenting plan was inadequate because he refused to significantly cut back on
his work schedule and because he indicated that he would rely on the assistance
of the nanny and his relatives to raise the children. It is difficult to
ascertain the error that the trial judge is alleged to have made. Presumably,
the appellant disagrees with the proposed plan and seeks this court's
concurrence with her opinion. That is not our role. In any event, I am also not
satisfied that the children would suffer any harm under the respondents
parenting plan.

(e)

Nature of Potential Harm

[86]

At trial, the appellant proposed to call a
psychotherapist, Carol-Jane Parker, to give expert evidence. The respondent
opposed qualifying Ms. Parker as an expert witness, and the trial judge
conducted a
voir dire
. He ruled that Ms. Parker could give expert
evidence on the issue of the potential impacts (emotional and psychological)
the children may face if they are separated from their primary caregiver. For
the purposes of her evidence, an infant was defined as being up to five years
of age. Thus, both children were considered infants.

[87]

The trial judge's analysis of Ms. Parker's
evidence is found at paras. 305-315 of his reasons:

[305] Finally, moving to Ms. Parker, I find
that her evidence is of limited assistance to this Court. Without hesitation, I
accept her evidence that infants can face serious negative effects from being
removed from their primary caregiver, but I knew that before Ms. Parker
testified. No trial judge needs expert evidence for that.

[306] I did need expert evidence on other
things, however, and Ms. Parker helped me greatly with those areas.

[307] In direct examination, Ms. Parker
testified that the research indicates potential negative consequences for
infants, generally, when they are separated from their primary caregiver:
cognitive impairment (such as reading difficulties), negativity, aggressive
behaviours, symptoms of borderline personality disorder, and difficulties
managing stress, included. I accept that evidence.

[308] Brain development in an infant is
impacted where there is a loss of consistency that the primary caregiver
provides, stated Ms. Parker in direct examination. I accept that evidence.

[309] In cross-examination, Mr. Smith read
from a professional resource that the quality of care and responsiveness of the
new (alternate) caregiver will impact how the child responds to the separation
from the primary caregiver; and Ms. Parker agreed with that statement. I accept
that evidence.

[310] Ms. Parker agreed in cross-examination
that the culture of the family in question affects the potential harm of
separating a child from the primary caregiver. I accept that evidence.

[311] In cross-examination, Ms. Parker stated
that there are two types of harm from the separation  one is short-term
(crying, loneliness) and is usually resolved within months, and the other is
longer-term. Both types of harm can be ameliorated and treated through
counselling and professional help, and through continued contact with the
mother (whether in-person and/or online). I accept that evidence.

[312] Otherwise, I do not accept any of Ms.
Parkers evidence, whether given in direct examination or in cross-examination
at trial, as to what will likely happen with these two children, Z. and E., if
they are separated from F.

[313] In my view, Ms. Parkers evidence on the
voir dire
about not being able to express an opinion about these
children with any degree of certainty was not limited to an opinion about
attachment; it was in reference to any opinion at all. I have read the
transcript in question many times; there is no other reasonable interpretation
of the words used.

[314] My mid-trial ruling expressly permitted
Ms. Parker to provide evidence about these children specifically. She did
nothing wrong at trial in doing so. But the fact that she then said that her
opinions about these children are almost guarantees (my word; she said very
high degree of certainty and very certain) gives me great discomfort. It is
totally at odds with what she said during the
voir dire
.

[315] Thus, I cannot rely upon Ms. Parkers
opinion evidence when it comes to Z. and E. [Emphasis in original.]

[88]

The trial judge applied his findings regarding
Ms. Parkers evidence in his consideration of whether the appellant had met her
onus of establishing serious harm. He accepted Ms. Parkers testimony as circumstantial
evidence that the children could be at risk of emotional or psychological harm
if separated from the appellant. However, the trial judge placed very little
weight on the appellant's testimony that she would not return to Dubai with
them. He believed that she was unhappy while there, but rejected her evidence
that she suffered religious discrimination and social isolation.

[89]

The appellant submits that the trial judge erred
in minimizing the risk of harm associated with separating a primary caregiver
from an infant. She also argues that the trial judge wrongly rejected the
evidence of Ms. Parker by subjecting it to a standard of certainty.

[90]

There are two points that need to be stressed
regarding Ms. Parker's evidence. First, Ms. Parker conceded on the
voir
dire
that she could not testify about the psychological impact of
separation on these children to any degree of certainty, without conducting an
assessment. Second, she accepted that several factors could lessen the risk of
harm and ameliorate such harm, including the family's culture, the quality of
care of the alternate caregiver, and the use of counselling services. These
points led the trial judge to discount Ms. Parkers trial evidence regarding
her high degree of certitude that the children would suffer harm.

[91]

Ultimately, the trial judge accepted Ms.
Parkers evidence, but in assessing its weight, concluded the evidence was not
specific enough for the appellant to prove, on a balance of probabilities, that
the children would suffer serious harm if separated from her. This was a
conclusion available to the trial judge. Ms. Parker herself testified that an
assessment was necessary to opine on the issue of serious harm, and admitted
that she had not conducted one. Ms. Parker also provided no analysis before the
trial judge on how various mitigating factors might impact the potential for
harm. Therefore, the trial judge concluded that Ms. Parkers evidence was
insufficient to meet the appellants onus about serious harm.

[92]

In his dissent, my colleague states that the
trial judge made a palpable and overriding error in analyzing Ms. Parker's
evidence. He holds that:

[a]n indefinite separation of two quite young
children, one under two years old and the other only four, from the parent who
has always been their primary caregiver, constitutes a risk of serious harm.
This finding can be reached without any expert evidence on the specific impact
such a separation is likely to have on Z. and E. in particular. A risk of
serious harm is established if the court is convinced on a balance of
probabilities that this separation will occur.

[93]

If my colleague is correct, then there was no
need for Ms. Parker to testify. Indeed, much of the evidence called at trial
was superfluous. According to his logic, to succeed on a s. 23 argument, all
that a primary caregiver needs to establish is: (1) that the children in issue
are under the age of five; (2) that they refuse to return the wrongfully
retained children to the childrens home jurisdiction; and (3) that they refuse
to return to the childrens home jurisdiction if the children are required to
go back there.

[94]

This logic is problematic for several reasons.
First, it encourages child abductions, contrary to one of the public policy
purposes underlying the
CLRA
. Second, it calls for an analysis that
focuses solely on the preferences of the custodial parent and not on the best
interests of the children. Third, it uncritically accepts that there will be
serious harm regardless of the circumstances in a particular case, which are
ignored entirely. Fourth, it comes dangerously close to reviving the
long-discredited tender years' doctrine. Fifth, it replaces the discretion to
be exercised by the trial judge with a hard-and-fast rule.

[95]

The trial judge considered the expert and lay
evidence regarding serious harm and applied it to the facts of this case. He
reached an available conclusion on the evidence. The role of this court is not
to redo that analysis or to replace it with a non-discretionary rule that must
be followed when there are cases involving the wrongful retention of infants.

(f)

Parens Patriae
Jurisdiction

[96]

The trial judge declined to exercise
parens
patriae
jurisdiction. In so doing, he relied on
E. (Mrs.) v. Eve
,
[1986] 2 S.C.R. 388, the leading case on the issue. There, the Supreme Court
held, at p. 426, that
parens patriae
jurisdiction is founded on
necessity, namely the need to act for the protection of those who cannot care
for themselves.

[97]

In the case at bar, the trial judge was not
satisfied that necessity had been established. The trial judges decision was
highly discretionary and is owed deference:
Eve
, at p. 427;
Pellerin
v. Dingwall
, 2018 BCCA 110, 7 B.C.L.R. (6th) 314, at para. 38. As the
appellant has not shown any error in the trial judges decision to decline
parens
patriae
jurisdiction, I would dismiss this ground of appeal.

(g)

Section 40 Order

[98]

The OCL, which was granted intervenor status on
the appeal, submits that in making a s. 40 order, a court must consider the
best interests of the child (or children) who would be the subject(s) of the
order. This issue was not raised in the Notice of Appeal or addressed in the
appellants factum. It is not properly before this court, and I would decline
to consider it.

E.

disposition

[99]

For the foregoing reasons, I would dismiss the
motion for leave to file the fresh evidence and dismiss the appeal.

[100]

Regarding the costs of the appeal, the parties may make brief
written submissions of no more than five pages plus a bill of costs. The
respondents submissions are due within 14 days of the release of these
reasons. The appellants submissions are due within 14 days of the receipt of the
respondent's submissions.

C.W.
Hourigan J.A.

Brown J.A. (Concurring)

I.

OVERVIEW

[101]

I concur with my colleague, Hourigan J.A., and agree with his
proposed disposition of this appeal. These reasons supplement his by dealing
with the constitutional grounds of appeal advanced by the appellant mother, F.

[102]

The mother asserts two types of constitutional claims. The first is
a division of powers claim, in which she contends that s. 40(3) of the
Childrens
Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
), is
ultra vires
the Province of Ontario. Her second claim is based on the
Canadian Charter
of Rights and Freedoms
: namely, that by authorizing an order that directed
the two children return to Dubai where the issue of custody would be
determined,
CLRA
s. 40(3) infringed her rights guaranteed by ss. 2(a),
7, and 15 of the
Charter
and infringed those of the children under ss.
2(a), 6(1), 7, and 15.

[103]

The trial judge rejected both claims. The mother appeals,
essentially repeating the arguments she made below. For the reasons that
follow, I would not give effect to her arguments.

II.

DIVISION OF POWERS ISSUE

A.

DECISION OF THE TRIAL JUDGE

[104]

In her Fresh as Amended Answer, the mother seeks [a] declaration
that state-action directly or indirectly requiring the removal of an individual
from Ontario, pursuant to section 40(3) of the
Childrens Law Reform Act
(
CLRA
) is
ultra vires
the Province of Ontario. The mother
argues that
CLRA
s. 40(3) is
ultra vires
Ontario because all
acts of removal of a person from Canada are tantamount to a deportation, which
lies within the exclusive legislative power of Parliament.

[105]

In considering that submission, the trial judge, citing
Canadian
Western Bank v. Alberta
, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 25-29,
recognized that he must ascertain the pith and substance, or the true nature,
of
CLRA
s. 40(3). He observed the Supreme Court held in
Office of
the Childrens Lawyer v. Balev
, 2018 SCC 16, [2018] 1 S.C.R. 398, at
paras. 23-25, that a return order made under
CLRA
s. 40(3) is not a
custody order. He rejected the mothers submission that that characterization
applies only to cases where the foreign country is a signatory to the
Convention
on the Civil Aspects of International Child Abduction
, 25 October 1980,
Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (
Hague
Convention
), holding that the rationale applies equally to orders made to
return a child to a non-
Hague Convention
country.

[106]

The trial judge held that
CLRA
s. 40(3) is all about the
return of children to a place (in this case, Dubai) that they are most closely
connected to, for a determination of custody issues in that place, provided no
serious harm will result (which I have found to be the case here). The trial
judge adopted the analysis in
Kovacs v. Kovacs
(2002), 59 O.R. (3d)
671 (S.C.), which he read as holding that
CLRA
s. 40 falls within
provincial legislative authority.

B.

ISSUE ON APPEAL

[107]

The mother submits that the matter of
CLRA
s. 40(3) is
the removal of a citizen from Canada, which falls within exclusive federal
jurisdiction. To support her position, she relies heavily on the dissent of
Kellock J. in the decision of the Supreme Court of Canada in
McKee v. McKee
,
[1950] S.C.R. 700 (
McKee (SCC)
),
revd [1951] 2 D.L.R. 657
(P.C.) (
McKee (JCPC)
).

[108]

On his part, the respondent father, N., argues that in its pith and
substance
CLRA
s. 40(3) concerns a matter of child welfare and family
law, which falls within provincial jurisdiction:
R. v. S. (S.)
, [1990]
2 S.C.R. 254. The intervenor, the Attorney General of Ontario (AGO), supports
the fathers submission.

[109]

My analysis shall proceed as follows. First, I will summarize the
principles governing the pith and substance analysis required to determine
whether legislation falls within the constitutional competence of the federal
or a provincial government. Second, I will characterize the matter of
CLRA
s. 40(3). In the course of so doing, I will describe the statutory scheme in
which
CLRA
s. 40(3) is embedded, examine the purpose of a return
order, and consider the mothers submissions regarding the
McKee
case.
Finally, I will classify the matter of
CLRA
s. 40(3) for purposes of
determining whether the provision falls within the legislative competence of
Ontario.

C.

THE PRINCIPLES GOVERNING A PITH AND SUBSTANCE
ANALYSIS

[110]

Although early Canadian constitutional decisions by the Judicial
Committee of the Privy Council applied a rigid division of federal-provincial
powers as watertight compartments, subsequent Supreme Court jurisprudence has
favoured a flexible view of federalism  the so-called modern form of
cooperative federalism:
References re Greenhouse Gas Pollution Pricing Act
,
2021 SCC 11, 455 D.L.R. (4th) 1, at para. 50. Canadian federalism jurisprudence
supports the principle that a subject matter can have both federal and
provincial aspects and, in such a case, the double aspect doctrine permits a
province to legislate in pursuit of a valid provincial objective and Parliament
to do the same in pursuit of a separate federal objective:
Reference re Pan
‑
Canadian Securities Regulation
, 2018
SCC 48, [2018] 3 S.C.R. 189, at para. 114.

[111]

One reason Canadian constitutional jurisprudence uses such a
flexible approach lies in the practical difficulty in identifying the matter
of a statute. The late Professor Peter W. Hogg described the problem in the
following way in
Constitutional Law of Canada
, 5th ed. (Toronto:
Thomson Reuters, 2007), at §15.5(a):

The difficulty in identifying the matter of
a statute is that many statutes have one feature (or aspect) which comes within
a provincial head of power and another which comes within a federal head of
power. Clearly, the selection of one or the other feature as the matter of
the statute will dispose of the case; equally clearly, the court in making its
selection will be conscious of the ultimate result which is thereby dictated.
... How does the court make the crucial choice? Logic offers no solution: the
law has both the relevant qualities and there is no logical basis for
preferring one over the other. What the courts do in cases of this kind is to
make a judgment as to which is the most important feature of the law and to characterize
the law by that feature: that dominant feature is the pith and substance or
matter of the law; the other feature is merely incidental, irrelevant for
constitutional purposes. [Footnote omitted.]

[112]

In the
Greenhouse Gas References
, the majority of the
Supreme Court detailed the elements of this approach, at paras. 51-56:

(i)

At the first stage of the division of powers
analysis, a court must consider the purpose and effects of the challenged
statute or provision in order to identify its pith and substance, true
subject matter, or what the law in fact is all about. The court does so with
a view to identifying the statutes or provisions main thrust, or dominant or
most important characteristic;

(ii)

The pith and substance of a challenged statute
or provision must be described as precisely as possible, but precision should
not be confused with narrowness. Instead, the pith and substance of a
challenged statute or provision should capture the laws essential character in
terms that are as precise as the law will allow;

(iii)

It is permissible in some circumstances for a
court to include the legislative choice of means in the definition of a
statutes pith and substance, as long as it does not lose sight of the fact
that the goal of the analysis is to identify the true subject matter of the
challenged statute or provision;

(iv)

To determine the purpose of the challenged
statute or provision, the court can consider both intrinsic evidence, such as
the legislations preamble or purpose clauses, and extrinsic evidence, such as
Hansard records or minutes of parliamentary committees;

(v)

In considering the effects of the challenged
legislation, the court can consider both the legal effects  those that flow
directly from the provisions of the statute itself  and the practical effects,
the side effects that flow from the application of the statute;

(vi)

The characterization process is not technical or
formalistic. A court can look at the background and circumstances of a
statutes enactment as well as at the words used in it; and

(vii)

Finally, the characterization and classification stages of the
division of powers analysis must be kept distinct. The pith and substance of a
statute or a provision must be identified without regard to the heads of
legislative competence.

D.

THE CHARACTERIZATION OF THE MATTER

[113]

What, then, are the purpose and effects of
CLRA
s. 40(3):
its pith and substance or true subject matter? What is the provisions main
thrust, or dominant or most important characteristic? What is the section all
about?

The statutory scheme in which
CLRA
s. 40(3) is embedded

[114]

Section 40 falls within Part III of the
CLRA
, which deals
with decision-making responsibility, parenting time, contact, and guardianship,
the first three items being the new statutory labels for what used to be called
custody and access. The purposes of Part III are set out in
CLRA
s. 19
which, to repeat what is set out in para. 42 above, states:

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.

[115]

Part III legislates with respect to a broad range of issues relating
to the making of parenting and contact orders. Some of its provisions address
whether an Ontario court can or should exercise jurisdiction to make a
parenting or contact order (ss. 22, 23, and 25). Others concern the making,
enforcement, and variation of parenting or contact orders, including the
statutory requirement only to take into account the best interests of the child
when making a parenting or contact order (s. 24). Yet other sections deal with
extra-provincial matters.

[116]

The provisions collected under the heading
Decision-Making
Responsibility, Parenting Time and Contact  Extra-Provincial Matters
(ss.
40 to 46) provide two mechanisms by which to achieve the purposes enunciated in
s. 19  specifically, those of discouraging child abduction and refraining from
exercising jurisdiction in cases where it is more appropriate for the matter to
be determined by a tribunal having jurisdiction in a place other than Ontario
with which the child has a closer connection.

[117]

The first mechanism is the incorporation of the provisions of the
Hague
Convention
into the law of Ontario:
CLRA
, s. 46(2). Under the
Hague
Convention
, where a child has been wrongfully removed from a contracting
state and brought to Ontario by one parent, the other parent may apply for the
return of the child to the contracting state:
CLRA
, s. 46(5);
Hague
Convention
arts. 3, 12, 29. Where certain conditions are satisfied and
certain exceptions do not apply, Article 12 requires a court to order forthwith
the return of a child who has been wrongfully removed or retained.

[118]

The second mechanism involves
CLRA
s. 40 which states:

Interim powers of court

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.

[119]

Section 40 applies to both domestic and international situations:
where a child has been wrongfully removed to Ontario from another jurisdiction
in Canada and where a child has been wrongfully removed from a state that is
not a contracting party to the
Hague Convention
and brought to Ontario.

[120]

In
Geliedan v. Rawdah
, 2020 ONCA 254, 446 D.L.R. (4th) 440,
leave to appeal refused, [2020] S.C.C.A. No. 193, this court observed, at
paras. 34 and 69, that a court is able to exercise a broader range of
discretionary powers under
CLRA
s. 40 than under the
Hague
Convention
.
CLRA
s. 40(3) sets out one such power; it authorizes a
court to order a party to return the child to such place as the court considers
appropriate if the court is satisfied that a child has been wrongfully removed
to or is being wrongfully retained in Ontario. Section 40(3) is the target of
the mothers constitutional challenges in this case.

[121]

The different procedures under the
Hague Convention
and
provincial legislation, such as
CLRA
s. 40, for securing the return of
a child wrongfully removed or retained operate independently of each other:
Thomson
v. Thomson
, [1994] 3 S.C.R. 551, at p. 603;
Geliedan
, at paras.
30-33. Nevertheless, as a practical matter, where the provisions of provincial
legislation such as
CLRA
s. 40, are engaged, [it] may not be improper
to look at the Convention in determining the attitude that should be taken by
the courts, since the legislature's adoption of the Convention is indicative of
the legislature's judgment that international child custody disputes are best
resolved by returning the child to its habitual place of residence:
Thomson
,
p. 603.

The purpose of a return order

[122]

The purpose of a return order under the
Hague Convention
has
been described by the Supreme Court in two cases:
Thomson
and
Balev
.

[123]

In
Thomson
, the court stated that the
Hague Convention
seeks to enforce custody rights and protect children internationally from the
harmful effects of their wrongful removal or retention by providing procedures
to return children promptly to the situation they were in immediately before
their wrongful removal:
Thomson
, at pp. 578-79. The harm that the
Hague
Convention
seeks to prevent was also summarized in
Balev
, at para.
23:

The harms the
Hague Convention
seeks to
remedy are evident. International child abductions have serious consequences
for the children abducted and the parents left behind. The children are removed
from their home environments and often from contact with the other parents.
They may be transplanted into a culture with which they have no prior ties,
with different social structures, school systems, and sometimes languages.
Dueling custody battles waged in different countries may follow, delaying
resolution of custody issues. None of this is good for children or parents.

[124]

The harms to a child from a wrongful removal or retention were
further described by this court in
Ojeikere v. Ojeikere
, 2018 ONCA
372, 140 O.R. (3d) 561, at para. 16: Child abductions ordinarily harm
children, undermine the important goal of maximizing contact between a child
and both parents, and often promote a parents interests over that of the
child: see also,
M.A.A. v. D.E.M.E.
, 2020 ONCA 486, 152 O.R. (3d) 81,
at para. 38, leave to appeal refused, [2020] S.C.C.A. No. 402.

[125]

In
Balev
, the court stated that the prompt return of
wrongfully removed or retained children serves three purposes: (i) it protects
against the harmful effects of wrongful removal or retention; (ii) it deters
parents from abducting the child in the hope that they will be able to
establish links in a new country that might ultimately award them custody;
(iii) finally, it is aimed at speedy adjudication of the merits of a custody or
access dispute in the forum of a child's habitual residence, eliminating
disputes about the proper forum for resolution of custody and access issues: at
paras. 25-27.

[126]

Against this background, the court in
Balev
went on to
describe, at para. 24, the nature of a return order made under the
Hague
Convention
:

The return order is not a custody
determination: Article 19. It is simply an order designed to restore the
status
quo
which existed before the wrongful removal or retention, and to deprive
the wrongful parent of any advantage that might otherwise be gained by the
abduction. Its purpose is to return the child to the jurisdiction which is most
appropriate for the determination of custody and access.

[127]

A return order made under
CLRA
s. 40(3) shares the same
purpose as one made under the
Hague Convention
. The Preamble of the
Hague
Convention
and
CLRA
s. 19 display a commonality of purpose. The
Preamble expresses the desire to protect children internationally from the
harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the state of their habitual
residence. On its part, s. 19 of the
CLRA
seeks to discourage the
abduction of children as an alternative to the determination of decision-making
responsibility by due process and to ensure Ontario courts refrain from exercising
jurisdiction where a more appropriate forum exists in which to determine
decision-making responsibility.

[128]

In
M.A.A.
, this court recognized the commonality of purpose
of return orders made under the
Hague Convention
and
CLRA
s.
40, stating, at para. 38: With respect to non-signatory countries, the
CLRA
applies and reflects the
Hague Convention
s goals of discouraging child
abductions by confining Ontario jurisdiction over custody to limited
circumstances.

[129]

In
Kovacs
, a
Hague Convention
case, Ferrier J. noted
the common purposes of the return provisions under the Convention and the
CLRA
,
stating, at paras. 140-41, that in making an order that a child be returned to
its habitual residence without a determination of the custody issue, [the
court] is making an order considered to be in the best interests of the welfare
of the child, a jurisdiction that clearly is one of provincial power. See
also:
Bolla v. Swart
, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para.
37, quoted above at para. 57.

[130]

This commonality of purpose was also recognized by Professor
Nicholas Bala in his article,
O.C.L. v. Balev
: Not an Evisceration
of the
Hague Convention
and the International Custody Jurisdiction of
the
CLRA
 (2019), 38 Can Fam LQ 301, at p. 308:

Provincial legislation like Ontario's
Children's
Law Reform Act
adopts a statutory regime for enforcement of custody rights
of parents from non-
Hague
countries that is based on the same basic
principles and concepts as apply when there is a wrongful removal or retention
of a child to Ontario from a
Hague Convention
country. Like the
Hague
Convention
, the
CLRA
is intended to discourage forum shopping and
deter international abduction of children, and to avoid exercise of concurrent
jurisdiction by Ontario courts where courts of another state have a closer
connection to the child.

[131]

Accordingly, the nature and purpose of a return order made under
CLRA
s. 40(3) is the same as one made under the
Hague Convention
: 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.

The effects of a return order

[132]

The mother submits that since a return order can operate to remove a
child from Ontario and return him or her to a foreign jurisdiction, the effect
of the order is akin to that of a deportation order, in respect of which
Parliament has the exclusive power to legislate. I am not persuaded by this
submission. A laws legal effects are discerned from its provisions by asking
how the legislation as a whole affects the rights and liabilities of those subject
to its terms:
Greenhouse Gas References
, at para. 70 (citation
omitted). The mothers argument ignores the larger statutory scheme in which
CLRA
s. 40(3) operates.

[133]

Certainly, the effect of a
CLRA
s. 40(3) return order is to
remove a child from Ontario. And certainly the means of ordering the return
of a child is central to the operation of
CLRA
s. 40(3).

[134]

But, the power of a court to order the return of a child under s.
40(3) is one of several means made available to a court under s. 40, and Part
III more broadly, to right a wrong  the wrong consisting of the wrongful
removal to or retention of a child in Ontario.

[135]

As this court stated in
Geliedan
, at para. 77, the
legislative purposes set out in
CLRA
s. 19 inform the exercise of the
discretion authorized by s. 40. A return order made under
CLRA
s.
40(3) seeks to achieve the purposes of Part III of the
CLRA
in several
respects.

[136]

First, s. 40(3) offers a practical way to thwart unilateral efforts
by one parent to change existing custody/decision-making arrangements.
CLRA
s. 40(3) echoes the good sought by a return order under the
Hague
Convention
 namely, that a wrongful removal often harms a child and it is
in the interests of the child to have custody issues determined by the place
with the closest connection to the child. The nature of the remedy granted by
s. 40(3)  the return of a child from Ontario to another jurisdiction
reflects the nature of the wrong committed by one parent: the wrongful removal
of the child to Ontario. If an Ontario court cannot order the good of a
childs return to alleviate the harm of his or her wrongful removal, then
Ontario risks becoming a haven for child abductors, hardly a constitutionally
worthy goal.

[137]

Relatedly,
CLRA
s. 40(3) seeks to preserve the
status
quo
regarding the respective custody rights of the childs parents and
provides a mechanism to return a child to the place most appropriate for the
determination of the parental custody issues, a good which is also in the
childs best interests.

[138]

Further, the making of a return order under s. 40(3) is the
culmination of a judicial inquiry into the interests of a child who has been
wrongfully removed to and retained in Ontario. As a practical matter, the
provisions of s. 40, including s. 40(3), must be read and understood in the
context of the larger statutory scheme that includes
CLRA
ss. 22 and
23. That is because typically non-
Hague Convention
proceedings for the
return of a child to another country involve competing legal claims by the
parents, with one seeking the return of the child and the other usually seeking
a custody order: see, for example,
Ojeikere
;
M.A.A.
[1]
Such competing claims bring
into play the issue of whether the Ontario court has the jurisdiction to make a
parenting order under
CLRA
ss. 22(1) or 23. While, broadly speaking,
the factors enumerated in
CLRA
s. 22(1) direct an inquiry into the
degree of connection of the child with Ontario, including whether proceedings
are pending before a tribunal in another place, those in s. 23 direct an
inquiry into the degree of harm a child would suffer if removed from Ontario.

[139]

While neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests
test, as observed by this court in
Ojeikere
, at para. 16:

[T]he policy behind discouraging child
abduction and requiring a summary return to habitual residence does reflect the
Legislatures overriding concern with a childs best interests. Child
abductions ordinarily harm children, undermine the important goal of maximizing
contact between a child and both parents, and often promote a parents
interests over that of the child.

[140]

Section 23 also reflects the Legislatures overriding concern with
the childrens best interests:
Ojeikere
, at para. 17. Under s. 23, an
Ontario court must assess the possibility or risk of future harm if the child
is removed from Ontario, both in respect of its likelihood and severity:
Ojeikere
,
at para. 62.
[2]
It is evident from the case law that the holistic assessment of serious harm
under
CLRA
s. 23 enables a court to consider the many factors relevant
to a childs best interests.

[141]

Accordingly, an assessment of the effects of
CLRA
s. 40(3)
in the context of Part III of the
CLRA
legislation as a whole confirms
that the provisions focus is 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.
CLRA
s. 40(3) forms a necessary
part of a provincial statutory scheme that seeks to protect a child from the
harmful effects of their wrongful removal or retention.

[142]

I therefore conclude that the true subject matter of
CLRA
s. 40(3) is to enforce custody rights (decision-making responsibility/parenting
time) and prevent harm to a child. The provision achieves these matters by
authorizing an Ontario court to return a child who has been wrongfully removed
to Ontario or wrongfully retained in Ontario to such place as the court
considers appropriate which, in turn, will enable the custody of the child to
be determined by the state that has the closer connection to the child.

The decision in
McKee v. McKee

[143]

The decision in
McKee
, on which the mother so strongly
relies in support of her federalism challenge to
CLRA
s. 40(3), does
not alter that conclusion. As I read
McKee
, the case does not support
the mothers argument for exclusive federal jurisdiction over the return of
wrongfully removed or retained children; on the contrary, it supports the
fathers division of powers submission.

[144]

McKee
involved a mother and father who
were both citizens of the United States and domiciled there. Shortly before
their separation, their son was born. Both parties then participated in custody
and divorce proceedings in California. Following a trial in 1942, the
California court awarded the father custody of the child, with the son to spend
three months each summer with his mother. In 1945, the father applied to modify
the mothers access; the mother cross-claimed. After a further trial, custody
was awarded to the mother. The father brought review proceedings, which
ultimately were dismissed in the mothers favour. Before they were, the father
took the child from his residence in Michigan across the border into Ontario.
The father stated he intended to make Ontario their new place of residence.

[145]

The mother obtained a writ of
habeas corpus
from an Ontario
court. On the return of the writ, a judge directed a trial of the custody
issue. The trial judge took into account the more recent California orders giving
custody to the mother but concluded that it was in the best interests of the
child to give the father custody. This court dismissed the mothers appeal. A
majority of the Supreme Court of Canada reversed the trial judge. On further
appeal, the Judicial Committee of the Privy Council (JCPC) set aside the
decision of the Supreme Court of Canada and restored the trial judgment.

[146]

The majority of the Supreme Court of Canada took issue with the
judge on the return of the
habeas corpus
writ directing a trial of the
custody issue. The circumstances that most heavily influenced the majority
were: the parents were U.S. citizens; they lived in the U.S.; the custody
litigation took place in the California courts; both had entered into an
agreement not to take the child outside of the U.S. without the consent of the
other; yet the father took the child to Ontario in the final moments of a
protracted litigation in his own country for the purpose of avoiding obedience
to the judgment of its Courts, and in deliberate disregard of his own
agreement:
McKee

(SCC)
, at p. 709. The majority concluded
that, on the return of the writ, the judge should have directed that the child
be delivered into the custody of the [mother] on her undertaking to return with
him to her home in the United States:
McKee

(SCC)
, at p.
710. The majority made an order to that effect, which included a provision that
the mother have custody of the child.

[147]

In our case, the mother relies heavily on the dissenting reasons
authored by Kellock J. The minority saw no error in the procedure adopted by
the judge on the return of the
habeas corpus
writ: given the childs
presence in Ontario, the court had to consider the childs best interests. The
minority stated, at p. 720, that no jurisdiction existed for the majority to
make the order that it did, which would return the child to the United States
without an inquiry into his best interests:

That which is involved in the present case is a matter of
custody. The appellant, under the guise of custody proceedings, asks for an
order for which there is no authority outside the
Extradition Act
or the deportation
provisions of the
Immigration
Act
.
Even if it could be said that such
authority resides in the executive, it has not been committed to the courts
,
Attorney-General for Canada
v.

Cain
. In my respectful
opinion,
there is no jurisdiction in the courts of Ontario
or in this court to make such an order as the [mother] seeks or to do otherwise
than to apply to the circumstances of this case, the ordinary law of Ontario as
to custody
, giving due weight, of course, to the California decree.
[Emphasis added.]

[148]

At the time of the
McKee
case,
The Infants Act
,
R.S.O. 1937, c. 215, did not contain any provision analogous to
CLRA
s. 40. As I read the dissent of Kellock J., the minority was simply observing
that, at that time, no authority had been given to the courts to make the
return order sought by the mother.

[149]

The JCPC reversed the decision of the Supreme Court and restored the
trial judges award of custody to the father. As there was no dispute that the
trial judge had jurisdiction to entertain the question of custody that had been
referred to him, he did not need to blindly follow an order made by a foreign
[c]ourt but, as part of his best interests analysis, could give proper weight
to the foreign judgment:
McKee (JCPC)
, at pp. 664-65. Consequently,
the trial judge did not commit any error.

[150]

The JCPC allowed that, in some circumstances, an Ontario court might
not need to look beyond the foreign judgment to conduct its own custody
analysis, stating, at pp. 664-65:

It is possible that a case might arise in which it appeared to
a Court, before which the question of custody of an infant came, that it was in
the best interests of that infant that it should not look beyond the
circumstances in which its jurisdiction was invoked and for that reason give
effect to the foreign judgment without further enquiry.  Once it is conceded
that the Court of Ontario had jurisdiction to entertain the question of custody
and that it need not blindly follow an order made by a foreign Court, the
consequence cannot be escaped that it must form an independent judgment upon
the question, though in doing so it will give proper weight to the foreign
judgment. What is the proper weight will depend upon the circumstances of each
case.
It may be that, if the matter comes before the Court
of Ontario within a very short time of the foreign judgment and there is no new
circumstance to be considered, the weight may be so great that such an order as
the Supreme Court made in this case could be justified. But if so, it would be
not because the Court of Ontario, having assumed jurisdiction, then abdicated
it, but because in the exercise of its jurisdiction it determined what was for
the benefit of the infant
. [Emphasis added.]

[151]

Taking a step back,
McKee
does not stand for the
proposition asserted by the mother that an Ontario court lacks the jurisdiction
to make an order requiring a child to be returned to another country because
the subject matter of such an order falls within exclusive federal jurisdiction
under the
Constitution Act
,
1867
. On the contrary, the
decision of the JCPC recognized that an Ontario court could make such an order
provided it applied the law of Ontario as it then stood  namely, conducting a
best interests of the child analysis while deciding which parent should have
custody of the child.

E.

THE CLASSIFICATION OF THE MATTER

[152]

The second stage of a division of powers review requires classifying
the subject matter with reference to federal and provincial heads of power
under the Constitution in order to determine whether it is
intra vires
of Ontario and therefore valid:
Greenhouse Gas References
, at paras.
47, 56.

[153]

Under Canadian jurisprudence, the constitutional authority to
legislate with respect to child custody and welfare (save for corollary relief
orders under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)) is firmly
anchored in the provinces, particularly the provincial legislative power under
s. 92(13) of the
Constitution Act
,
1867
regarding property
and civil rights in the province:
Hogg
,
at §27.5(a);
NIL/TU,O Child and Family Services Society v. B.C. Government
and Service Employees Union
, 2010 SCC 45, [2010] 2 S.C.R. 696, at para.
45;
R. v. S. (S.)
, at p. 279.

[154]

As the subject matter of a
CLRA
s. 40(3) removal order
involves the enforcement of custody rights, protecting a child from the harm of
a wrongful removal, and ensuring that the custody of a child is determined by
the most appropriate state, it falls 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. Accordingly,
CLRA
s. 40(3) is
intra
vires
of the Legislature of Ontario.

F.

CONCLUSION

[155]

Although the trial judge, at para. 455, purported to follow
Kovacs
in finding
CLRA
s. 40(3)
intra vires
of Ontario, in fact the
comments made in
Kovacs
about the
vires
of s. 40 were
obiter
as the issues raised in that case did not directly engage
CLRA
s. 40.
Nevertheless, the trial judge went on to hold, at paras. 456 and 463, that
CLRA
s. 40(3) is all about the return of children to a place (in this case, Dubai)
that they are most closely connected to, for a determination of custody issues
in that place, provided no serious harm will result and that the section falls
within Ontarios lawful authority to legislate matters of child welfare and
family law.

[156]

For the reasons given, I see no error in that conclusion.
CLRA
s. 40(3) is
intra vires
the legislative power of Ontario. Accordingly,
I would give no effect to this ground of appeal by the mother.

III.

THE
CHARTER
CLAIMS

A.

OVERVIEW

[157]

In her Fresh as Amended Answer, the mother seeks an order that
CLRA
s. 40(3) breaches the following constitutional rights of herself and the two
children:
Charter
ss. 2(a); 7; and 15. As well, the mother advances a
s. 6(1) claim with regard to the children only and seeks an order, if
necessary, to bring
Charter
claims on their behalf. Common to all
these
Charter
breach allegations is the argument that any return order
made under
CLRA
s. 40(3)
without a full best-interests
determination in the ordinary course
 (emphasis in original), is
constitutionally infirm and therefore has the effect of breaching the
enumerated
Charter
rights.

[158]

At trial, the father argued that the mother had failed to establish
a sufficient factual foundation for her
Charter
claims; the trial
judge rejected that submission. However, in the result, the trial judge
dismissed the
Charter
claims advanced by the mother. I will describe
his reasons for so doing when dealing with each
Charter
breach
allegation.

[159]

An assessment of the mothers
Charter
claims requires
understanding the order made by the trial judge exercising the power granted by
CLRA
s. 40(3). The trial judge made the following orders:

(i)

The mother has wrongfully retained the children
in Ontario;

(ii)

The children shall forthwith be returned to
Dubai;

(iii)

If the mother does not return to Dubai, the
children shall forthwith be in the fathers care and control for the limited
purpose of the children being able to travel with him to Dubai;

(iv)

The consent of the mother for the father to
travel with the children for such purposes is dispensed with;

(v)

The mother shall deliver to the father the
childrens travel documentation and medical records; and

(vi)

The mother is prohibited from removing the
children from Ontario except for the purpose of returning them to Dubai.

[160]

Before dealing with each
Charter
claim, I wish to make a
few preliminary observations.

[161]

First, the parties did not provide extensive argument in respect of
the mothers
Charter
claims. Both devoted just over the last two pages
of their factums to the
Charter
claims; more extensive written
submissions were made by the intervenors, the AGO and the Office of the
Childrens Lawyer (OCL). Given that this appears to be the first
Charter
-based
challenge to
CLRA
s. 40(3), the brevity of the parties submissions is
most unfortunate.

[162]

Second, some of the mothers
Charter
claims lack precision;
some shifted their focus as the argument unfolded before the trial judge; and
some shifted their content from the notice of appeal to the mothers factum. In
order to gain a fulsome understanding of the nature of the mothers
Charter
claims, I have considered several of her documents: (i) the Fresh as Amended
Answer; (ii) Factum of the Respondent re: Constitutional Claim filed before the
trial judge; (iii) the Notice of Appeal; and (iv) her Factum on this appeal.

[163]

Finally, on this appeal the father takes the position that if
CLRA
s. 40(3) falls within the legislative competence of Ontario, then judicial
orders made under that provision are not subject to
Charter
scrutiny.
I disagree. I would observe that just because a statutory provision falls
within the legislative competence of Ontario under a division of powers
analysis does not mean it is immunized from further review regarding its
compliance with the
Charter
. Further, I understand the mother to be
arguing that
CLRA
s. 40(3) authorizes conduct that produces an
unconstitutional effect. In other words, the statutory provision, by
authorizing a court to make an order to return a child to such place as the
court considers appropriate, legislatively sanctions conduct that has the
effect of violating the
Charter
rights of the mother and two children
given the factual circumstances in which the mother and children find
themselves
[3]
.
My analysis will proceed on that basis.

B.

Charter
S. 7
Claim

The proceeding below

[164]

Section 7 of the
Charter
states: Everyone has the right to
life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.

[165]

The trial judge concluded that a return order made under the
authority of
CLRA
s. 40(3) would not result in an infringement of the
s. 7
Charter
rights of the mother and children for several reasons:

(i)

A return order is not a custody order and therefore it does not result
in the loss of any legal rights by the mother;

(ii)

Any
breaking of the bond between the mother and her children, and the resulting
psychological effect, would result from her decision to choose not to return to
Dubai;

(iii)

Although
CLRA
s. 40(3) does not expressly require a consideration
of the best interests of the child, no constitutionally infirm deprivation
would result as the best interests of the child is not a principle of
fundamental justice;

(iv)

In any
event, the evidence established that in determining the custody of the
children, the best interests of the children would be the paramount
consideration of a court in Dubai; and

(v)

CLRA
s. 40(3) did not result in a process that lacked
procedural fairness as a full-blown trial was held to determine the application
for a return order.

Issues on appeal

[166]

As I understand the s.
7
Charter
claims advanced by the mother on
behalf of herself and the two children, the following issues are raised on this
appeal:

(i)

Did the trial judge err in concluding that an order made under
CLRA
s. 40(3) did not engage the rights of the
mother and children to security of the person under s. 7 of the
Charter
?

(ii)

Did the trial judge err in concluding that the absence of an express
requirement in
CLRA
s. 40(3) that a court
conduct a full blown best interests of the child analysis in making a removal
order did not infringe s. 7 of the
Charter
?

(iii)

Does a
CLRA
s. 40(3) removal orders effect of requiring the
mother to litigate custody issues in the UAE (Dubai) deny her a
constitutionally protected right to access to justice in Ontario?

[167]

It is understandable that the mother is not pursuing the additional
s. 7 claim described in her Fresh as Amended Answer that
CLRA
s. 40(3)
infringed s. 7 by not prescribing a hearing process akin to an ordinary
course custody hearing. An 11-day hearing was held to adjudicate the parties
respective claims, with each party able to adduce evidence, test evidence by
way of cross-examination, and make full legal submissions. The mother received
a hearing that fully accorded with the procedural principles of fundamental
justice.

Analysis

First Issue: Did the trial judge err in concluding that an order
made under
CLRA
s. 40(3) did not engage the rights of the mother and
children to security of the person under
Charter
s. 7?

[168]

In her factum below, the mother described herself as the childrens
psychological parent. She explained the intrusion on her security of the
person that would result from the operation of
CLRA
s. 40(3):

Under
CLRA
s. 40 the state (the
court) is determining whether to remove custody of the child from the mother.
In this case,
that state-imposed change of custody
carries the substantial
risk of permanently breaking the bond between the psychological parent and
children. [Emphasis added.]

[169]

The trial judge did not accept this submission. Relying on
Balev
,
he properly held that a return order made under
CLRA
s. 40(3) is not a
custody order. He concluded that if the mother chose not to return to Dubai,
then any breaking of the bond between the children and her would not be caused
by the operation of
CLRA
s. 40 but by her own choice.

[170]

On appeal, the mother repeats her argument that an order removing a
child from their primary caregiver breaches s. 7.

[171]

State action that has a serious and profound effect on a persons
psychological integrity, assessed objectively, may amount to an interference
with the persons security of the person for purposes of s. 7 of the
Charter
:
New Brunswick (Minister of Health and Community Services) v. G. (J.)
,
[1999] 3 S.C.R. 46, at para. 60. As Hamish Stewart observes in
Fundamental
Justice: Section 7 of the Canadian Charter of Rights and Freedoms
, 2nd ed.
(Toronto: Irwin Law, 2019), at p. 103, the
G. (J.)
case set a
threshold for finding interference with psychological integrity that is both
objective and high.

[172]

The case of
G. (J.)
involved, in part, the extension of an
order that had granted custody of the appellants children to a provincial
child welfare agency. The majority of the Supreme Court held that state
removal of a child from parental custody pursuant to the states
parens
patriae
jurisdiction constitutes a serious interference with the
psychological integrity of the parent because it stigmatizes a parent as
unfit when relieved of custody, thereby interfering with the psychological
integrity of the parent
qua
parent: at paras. 61, 64.

[173]

In
A.M.R.I. v. K.E.R.
, 2011 ONCA 417, 106 O.R. (3d) 1, at
para. 98, this court recognized that a refugee childs s. 7
Charter
rights are engaged where the childs involuntary removal is sought under the
Hague
Convention
to a country where the child has already been found to face a
risk of persecution: see also,
J.P.B. v. C.B.
, 2016 ONCA 996, 2
R.F.L. (8th) 48, at para. 25.

[174]

In the present case, the children are quite young (both under five
years old). They are not refugees. The trial judge found that the mother had
always been their primary caregiver and there was some circumstantial evidence
that the children could be at risk of emotional and psychological harm if they
are returned to Dubai without their mother. That said, the mother predicated
this part of her s. 7 argument on the proposition that a
CLRA
s. 40(3)
return order would amount to a change of her custodial rights, which is
incorrect. The purpose of a return order is to restore the
status quo
in respect of custodial rights of the parents and requires them to litigate the
issue of custody in a forum more appropriate than Ontario.

[175]

As well, I think the trial judge was correct in concluding that any
psychological harm that might arise on the part of the mother or the children
would result from the mothers refusal to return to Dubai with the children,
not from any state conduct flowing from
CLRA
s. 40(3). The mother was
quite clear in her evidence that she would not return to Dubai, testifying:

[F]irst of all and before anything else, the
-- the reason for the separation was because [the children] deserve a happy mom
and deserve a mom, a parent who is happy, and so I dont see the possibility of
that happening if I am -- if I am to go back.

[176]

In
Ojeikere
, this court expressed concern about permitting
an abducting parent to create a risk of psychological harm by refusing to
return to the place from which the children were removed, stating, at para. 91,
in the context of its
CLRA
s. 23 serious harm analysis:

Mr. Ojeikere argues that by professing to stay
in Ontario and separating herself from the children, Mrs. Ojeikere is
manipulating them and, by her stance alone, trying to establish serious harm. I
have some sympathy for his argument.
Ordinarily, a parent
in Mrs. Ojeikeres position ought not to be able to create serious harm and
then rely on it through her own refusal to return to the country of the
childrens habitual residence  at least without a substantial reason for doing
so, such as the risk of imprisonment or persecution, risk to health or physical
safety, or the risk of a significant obstacle to employment
. [Emphasis
added.]

[177]

Nonetheless, I will proceed to consider the mothers s. 7 arguments
assuming that the exercise of the authority granted by
CLRA
s. 40(3)
engaged the security of the person of both herself and the two children.

Second Issue: Did the trial judge err in concluding that the absence
of an express requirement in
CLRA
s. 40(3) that a court conduct a
full blown best interests of the child analysis in making a removal order did
not infringe s. 7 of the
Charter
?

[178]

It is true that
CLRA
s. 40(3) does not contain an express
reference to best interests of the child. It is also true that the purpose
articulated in
CLRA
s. 19(a) of ensuring 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 does not formally include return orders under
CLRA
ss. 40(3) or 46 where no order is made with respect to decision-making
responsibility or parenting time.

[179]

Nevertheless, since
Baker v. Canada (Minister of Citizenship and
Immigration)
, [1999] 2 S.C.R. 817, it has been well-established that
serious consideration must be given to the best interests of children when
exercising discretionary powers that may affect them:
M.M. v. United
States of America
, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 146. In such
cases, a decision-maker must consider a childs best interests as an important
factor and give them substantial weight:
Baker
, at para. 75.

[180]

However, as the Supreme Court observed in
M.M.
, the best
interests of the child will not always outweigh other considerations, stating
in part, at para. 145:

[T]he best interests of children on surrender
for extradition must be considered in light of other important legal principles
and the facts of the individual case:
Fischbacher
, at paras. 37-38. As
the Court said in
Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, the legal
principle of the best interests of the child may be subordinated to other
concerns in appropriate contexts; its application is inevitably highly
contextual; and [s]ociety does not always deem it essential that the best
interests of the child trump all other concerns in the administration of
justice: paras. 10-11.

See also:
A.M.R.I.
, at para.
82.

[181]

How do those
principles apply to the order-making power created by
CLRA
s. 40(3)?
In my view, since the orders authorized by that statutory provision obviously
will affect children, a court must include, as part of its exercise of
discretion under that section, a consideration of the best interests of the
child.

[182]

The mother contends
that any consideration of the best interests of the child under
CLRA
s. 40(3) must be performed in the same way as when determining custody (decision-making
responsibility/parenting time) under
CLRA
s. 24, namely that,
the court
shall
only
take
into account
the best interests of the child
(emphasis added).

[183]

I disagree. That is
not the law in respect of applications under the
Hague
Convention
, where the consideration of the interests of the
children is not done in the manner the court would do at a custody hearing
because a return order does not determine custody:
Thomson
, at p. 578;
Ludwig v. Ludwig
, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 64.

[184]

So, too, in the case
of a
CLRA
s. 40(3) return order. Both the
scope
of a best interests inquiry and the
role
played by
a best interests inquiry under s. 40(3) differ from that when determining
custody under s. 24. That is because the scope and role of the inquiry must be
commensurate with the purposes of the s. 40(3) analysis, which differ from
those under s. 24.

[185]

The scope
of the
analysis under
CLRA
s. 40(3) does not
decide the ultimate issue of custody of the children but the narrower,
preliminary issue of the jurisdiction in which custody should be determined.

[186]

As well, under s. 24
the best interests of the child is the only factor a court may take into
account. However, to fulfill the purposes set out in
CLRA
s. 19, a
court making a return order under
CLRA
s.
40(3) must consider not only the best interests of the child but also s. 19s
policy objectives  namely, discouraging the abduction of children as an
alternative to the determination of decision-making responsibility by due
process, as well as refraining from exercising jurisdiction in cases where it
is more appropriate for the matter to be determined by another tribunal (one
that has jurisdiction and with which the child has a closer connection). A
holistic analysis of those three factors is required in order that the
statutory discretion granted by s. 40(3) fulfills the purposes of Part III of
the
CLRA
.

[187]

This differing
application of the best interests of the child test under
CLRA
ss.
40(3) and 24 reflects the inherent indeterminacy and elasticity of the test:
MacGyver
v. Richards
(1995), 22 O.R. (3d) 481 (C.A.), at p. 15. As put by Abella
J.A. (as she then was), the test
can be no more than an
informed opinion made at a moment in the life of a child about what seems
likely to prove to be in that child's best interests
:
MacGyver
,

at p. 15.
At this point of time in the lives of these two children, their immediate legal
interests concern where the issue of their custody should be determined, not
who should have custody. The best interests test must be applied in that
context.

[188]

Moreover,
the statutory scheme of which
CLRA
s. 40(3) forms a part
offers a procedurally fair mechanism, which accords 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 and/or primary
caregiver.

[189]

Reading the reasons of
the trial judge as a whole, I am satisfied he performed the multi-factored
analysis required by
CLRA
s. 40(3). He made specific findings of fact
regarding the interests of the children: about the relationship between the
children and both parents and the potential impact of a return order on the
children; the adequacy of evidence of the best interests of the children
available in Ontario; the potential risk of harm to the children if returned to
Dubai; that the settlement proposed by the father, if accepted by the mother,
would be incorporated in a Dubai judgment;
[4]
and that the best interests of the children would be the paramount
consideration in determining custody in a court in Dubai: at paras. 291, 294,
347, and 366.

[190]

The trial judge also
correctly recognized that a return order under
CLRA
s. 40(3) is not
the same as a custody order. Finally, the trial judge specifically found, at
several places in his reasons, that the return of the children to Dubai was in
their best interests: at paras. 387, 390, and 460-61.

[191]

Consequently,
I would not give effect to this ground of appeal by the mother.

Third Issue: Does the removal orders effect of requiring the mother
to litigate issues concerning the childrens custody in the UAE deny her a
constitutionally protected right to access to justice?

[192]

In her appeal factum, the mother submits that being forced through
the UAE legal system amounts to a denial of her constitutionally protected
right to access to justice. She elaborated on this argument in her factum
before the trial judge, stating in part, at paras. 88 and 90:

The [mothers] access to justice in Dubai is
impaired. Neither the Mother, or children, will receive
constitutionally-minimum legal treatment in Dubai.
The Charter
requires that the foreign legal system afford constitutionally-minimum legal
treatment, assessed from a purely Canadian standard, or the Canadian jurisdiction
decision will
ipso facto,
reject handing a matter over to that foreign
legal system.

The effect of the return Order is a change of
primary residence and a separation of the child from the primary parent,
ordered in the absence of a full best-interests determination in the ordinary
course
. Such
effects
are an unconstitutional
infringement of the independent constitutional right of primary parent and each
applicant child under s.2 and s.7. [Emphasis in original.]

[193]

In support of this submission, the mother relies on the concurring
reasons of Brown J. in
Uber Technologies Inc. v. Heller
, 2020 SCC 16,
447 D.L.R. (4th) 179, a case dealing with the enforceability of an arbitration
clause in a contract of adhesion that would require an Ontario Uber driver to
resolve any dispute with Uber through mediation and arbitration in the
Netherlands.

[194]

The majority of the court concluded that the arbitration agreement
made it impossible for the driver to arbitrate, thereby constituting a classic
case of unconscionability that invalidated an arbitration agreement: at para.
4.

[195]

While agreeing that the arbitration agreement was invalid, Brown J.
was not prepared to rely on the doctrine of unconscionability to reach that
result. Instead, he anchored his analysis on the principle that precludes the
ouster of court jurisdiction, either directly or through a clause that has the
ultimate effect of blocking access to a legally determined resolution: at
paras. 110, 113. It was in that context that Brown J. made the following
statements, at para. 120, upon which the mother relies:

[A]ccess to justice is constitutionally
protected through s. 96 of the
Constitution Act
,
1867
, which
limits the legislatures ability to place restrictions on dispute resolution
(
Trial Lawyers Association of British Columbia
v. British Columbia (Attorney General
)
,
2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43). As this Court stated in
Trial
Lawyers
, at para. 32:

The historic task of
the superior courts is to resolve disputes between individuals and decide
questions of private and public law. Measures that prevent people from coming
to the courts to have those issues resolved are at odds with this basic
judicial function.
The resolution of these disputes and resulting
determination of issues of private and public law, viewed in the institutional
context of the Canadian justice system, are central to what the superior courts
do. Indeed, it is their very book of business. To prevent this business being done
strikes at the core of the jurisdiction of the superior courts protected by s.
96 of the
Constitution Act, 1867
. [Emphasis
added in
Uber
.]

[196]

I do not see how this passage from
Uber
assists the
mothers s. 7 argument. First, s. 7 of the
Charter
was not in issue in
the
Uber
case; the Supreme Court made no comment on the section.
Second,
CLRA
s. 40(3) has not denied the mother access to a s. 96
court: the mother asserted claims and defences in her Fresh as Amended Answer,
and her evidence and submissions were considered by a s. 96 judge. Third, the
claims and counterclaims raised by the father and mother in this proceeding
constitute the type of issue frequently considered by a s. 96 court: namely,
which jurisdiction is the most appropriate in which to decide the merits of the
case?

[197]

Quite apart from the mothers misplaced reliance on the
Uber
decision, I see no merit in her other submissions. The return order does not
change the childrens primary residence. On the contrary, it seeks to restore
the
status quo
of the childrens residence before the mother engaged
in her wrongful conduct.

[198]

Finally, the mother does not point to authority to support her
submission that [t]he Charter requires that the foreign legal system afford
constitutionally-minimum legal treatment, assessed from a purely Canadian
standard. Many foreign countries do not share the same family law as Ontario.
That does not preclude a court from considering a request under
CLRA
s. 40(3) to return a child to such a country. Of course, when considering such
a request, Part III of the
CLRA
requires a court to examine the
effects of returning a child to such a country. That is precisely the analysis
the trial judge conducted. Significantly, he found, at para. 366(vi), that:

[T]here 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 F., if
contested, and (c) approve the settlement proposal tendered by N., if agreed to
by the mother. [Emphasis in original.]

[199]

Consequently, I give no effect to this part of the mothers s. 7
claim.

Conclusion on s. 7 claims

[200]

The trial judge dismissed the s. 7 claims by the mother and on
behalf of the children. For the reasons set out above, I see no error in that
result.

C.

CHARTER
S. 2(a)
CLAIM

Analysis

[201]

Section 2(a) of the
Charter
provides
that everyone
has the fundamental freedom of conscience
and religion. The standard claim that state conduct has infringed a persons
s. 2(a) freedom requires a claimant to demonstrate that (i) she has a sincere
belief or practice that has a nexus with religion and (ii) that the impugned
state conduct interferes, in a manner that is more than trivial or
insubstantial, with his or her ability to act in accordance with that practice
or belief:
Trinity Western University v. Law Society of Upper Canada
,
2018 SCC 33, [2018] 2 S.C.R. 453, at para. 32.

[202]

The mother has not asserted a standard s. 2(a) claim, which is not
surprising given the facts of this case. In respect of her own s. 2(a) right,
the mother has made it clear that she does not intend to return to Dubai, so
any
CLRA
s. 40(3) return order would not limit her ability to practise
her faith in Canada. As to the children, the evidence is uncontroverted that
upon their return to Dubai, they will continue to be raised in their parents
Shia faith, so the return order works no limit on their instruction in that
faith.

[203]

The mother fashions a s. 2(a) claim predicated on her return to
Dubai which, as mentioned, is completely at odds with her evidence that she
will not return to Dubai. In any event, the mother recasts her s. 7 claim as a
s. 2(a) claim to argue that a return order breaches her right as the childrens
primary caregiver to raise the children according to
her
decision-making, a right that would be unambiguously denied to her under UAE
law (emphasis in original). The factual findings made by the trial judge
undermine the claim so framed. I repeat the findings made by the trial judge,
at para. 366(vi) of his reasons:

[T]here 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 F., if contested, and (c) approve the settlement proposal
tendered by N., if agreed to by the mother. [Emphasis in original.]

[204]

In addition, the trial judge made the following findings, at paras.
368-69:

Further, even if I did believe [the mothers] evidence about
not returning to Dubai,
I do not accept
her evidence about how allegedly miserable her life in Dubai was
.
I do believe that she was unhappy in her marriage, but that marriage will be
over now.  She deserves to be happy and fulfilled and respected, and that will
not happen with N.

Otherwise, however,
regarding
her evidence about religious discrimination
and social isolation
and so on,
I reject it
.
[Emphasis added.]

[205]

The mother has not demonstrated that those findings of fact were
tainted by palpable and overriding error. Accordingly, I see no error in the
trial judges dismissal of the s. 2(a) claims advanced by the mother.

D.

CHARTER
S. 15(1)
CLAIM

The proceeding below

[206]

Section 15(1) of the
Charter
states: Every individual is
equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability. At trial, the mother framed her s. 15(1) claim in two
different ways.

[207]

First, in her Fresh as Amended Answer, she argued that
CLRA
s. 40(3) authorized state action that removed the custody of a child from a
psychological parent without affording a best interests of the child hearing in
the ordinary course. As I understand this argument, the mother contrasts (a)
the treatment of a parent who is found to have wrongfully removed a child from
another jurisdiction to Ontario with (b) the treatment of two Ontario resident
parents who are disputing custody of a child. In the latter case, the
determination of custody is subject only to a best interests of the child
analysis, whereas in her case it is not.

[208]

Second, the mother reframed the argument in a slightly different
fashion in her factum below:

The offensive state conduct is the act of forcibly returning
a Canadian citizen from Ontario to Dubai, pursuant to a CLRA s. 40 change of
custody from Mother to Father,
where
that change of custody is done without a best interests custody analysis
.

Every
other child in Canada, who is not part
of this discrete and insular minority (of children coming from non-democratic
sharia law countries), is unharmed, both legally and in fact, by the
application of the CLRA s.40 wrongfully retained test to change their custody
and remove them from Ontario.
This is because, every
other child, when being removed from Ontario, pursuant to CLRA s.40, goes to a
geographic location where best interests will then be applied to determine
their fate. This does not happen in Dubai or any other non-democratic sharia
law country. This is disproportionate impact.
This adverse impact of a
facially neutral law, infringes the applicants right to all the equalities
under s 15 of the Charter. [Emphasis added.]

[209]

This reframed argument contends that a disparate impact arises from
both the operation of Ontario law  i.e., the failure to consider the best
interests of the children in a
CLRA
s. 40(3) analysis  and from the
law of the country to which the children are returned.

[210]

During final argument at trial, the mother attempted to further
recast her s. 15(1) claim. Her counsel argued that
CLRA
s. 40 impacts
the mother as a woman differently than a man who comes under the same provision
and has disproportionate impacts with respect to a woman than with respect to a
man. The father objected to the mother raising a new claim at the end of trial
based on the enumerated ground of sex; the trial judge upheld that objection.

[211]

The trial judge dismissed the mothers s. 15(1) claim largely on the
basis that the argument required accepting a persons place of residence as an
analogous ground, which the case law to date has not recognized. The trial
judge concluded that the mother had not established that a
CLRA
s.
40(3) return order discriminated on any enumerated or analogous ground.

The issues on appeal

[212]

On appeal, the mother submits that
CLRA
s. 40(3) has a
discriminatory impact on her and the children. She identifies three
discriminatory impacts:

(i)

As a primary caregiver, she would suffer more of a severe discriminatory
legal burden where a child is ordered returned to Dubai than if ordered
returned to another province, the United States or England. This differential
burden is a disproportionate effect;

(ii)

The
two children would suffer dramatically more severe impact leaving Ontario to
return to Dubai than identically placed children returned to Alberta, Scotland,
or the United States; and

(iii)

Where the childs primary caregiver is the mother, a return to
Dubai by female results in the loss of badges of custody to the father under
UAE law, which a father would not face if he had to make the decision to
follow the infants back to Dubai, causing a disproportionate impact.

[213]

In response, the father submits that the mothers distinction
between children who are habitually resident in Dubai and those resident in
another province, the United States, or England, relies on a distinction based
upon residence, a ground that courts repeatedly have rejected. The mothers
other argument advances discriminatory impact based on sex, which the trial
judge did not permit her to argue. In any event, no evidence or data were
advanced at trial to demonstrate that
CLRA
s. 40(3) disproportionately
affects women. Fathers as well as mothers abduct or wrongfully retain children,
and s. 40(3) provides an important discretionary tool to protect mothers in
such situations.

[214]

The AGO also contends that the mothers claim that the legislation
discriminates on the basis of residence fails at the first step of the s. 15
analysis.

Analysis

[215]

To prove a
prima facie
violation of s. 15(1), a claimant
must demonstrate that the impugned law or state action (i) on its face or in
its impact, creates a distinction based on enumerated or analogous grounds and
(ii) imposes burdens or denies a benefit in a manner that has the effect of
reinforcing, perpetuating, or exacerbating disadvantage:
Fraser v. Canada
(Attorney General)
, 2020 SCC 28, 450 D.L.R. (4th) 1, at para. 27. In the
second step of the analysis, [t]he goal is to examine the impact of the harm
caused to the affected group, which may include [e]conomic exclusion or
disadvantage, [s]ocial exclusion[p]sychological harms[p]hysical harms[or]
[p]olitical exclusion, and must be viewed in light of any systemic or
historical disadvantages faced by the claimant group:
Fraser
, at
para. 76 (citation omitted).

[216]

As to the first step of the s. 15(1) analysis in the present case,
CLRA
s. 40(3) is facially neutral. It provides that where a court is satisfied that
a child has been wrongfully removed to or is being wrongfully retained in
Ontario, the court may order a party to return the child to such place as the
court considers appropriate. Under the provision, the person who wrongfully
removes a child may be the mother, father, or some other person. The provision
does not distinguish amongst wrongdoers based on any of the grounds enumerated
in s. 15(1) or recognized, to date, as analogous. Nor does the provision
distinguish amongst those places to which the judicial return of a child might
be appropriate.

[217]

Given the facial neutrality of
CLRA
s. 40(3), the mother
casts her s. 15(1) claim as one based on the impact of the provision. Adverse
impact discrimination occurs when a seemingly neutral law has a
disproportionate impact on members of groups protected on the basis of an
enumerated or analogous ground; [i]nstead of explicitly singling out those
who are in the protected groups for differential treatment, the law indirectly
places them at a disadvantage:
Fraser
, at para. 30. [I]n order for a
law to create a distinction based on prohibited grounds through its effects, it
must have a disproportionate impact on members of a protected group; a court
must explore whether it does so indirectly through its impact on members of
that group:
Fraser
, at paras. 52-53.

[218]

The threshold issue regarding the mothers s. 15(1) claims then
becomes: what is the group protected on the basis of an enumerated or analogous
ground in which she claims membership and who are subject to a disproportionate
impact under a law? The law, of course, must be a law enacted by a Canadian
state entity identified in s. 32 of the
Constitution Act
,
1982
:
Hogg, at §55.5(b). In this case, the law is
CLRA
s. 40(3).

[219]

I accept the submissions by the father and the AGO that the two s.
15(1) claims described in para. 212(i) and (ii) above advanced by the mother on
behalf of herself and the two children are predicated on using a place of
residence as an analogous ground. The claims compare the treatment of (a) the
mother as a parent who removed her children from Dubai with that received by
(b) parents who remove children from another country, and compare the treatment
of (c) children to be returned to Dubai with that of (d) children to be
returned to another country. Both claims use place of residence as the marker
by which to locate the mother and the children in a protected group for
purposes of a s. 15(1) analysis.

[220]

With one exception, Canadian courts have consistently held that
residence is not a ground of discrimination analogous to those enumerated in s.
15(1) of the
Charter
: see the cases cited in
Canadian Snowbirds
Association Inc. v. Attorney General of Ontario
, 2020 ONSC 5652, 152 O.R.
(3d) 738, at para. 73. The one exception is Aboriginality-residence as it
pertains to whether an Aboriginal band member lives on or off a reserve. Such
residence has been recognized as an analogous ground as it relates to a
personal characteristic essential to a band members personal identity, which
is no less constructively immutable than religion or citizenship:
Corbiere
v. Canada (Minister of Indian and Northern Affairs)
, [1999] 2 S.C.R. 203,
at para. 14.

[221]

Given that jurisprudence, I see no error in the trial judges
conclusion that the return order did not discriminate based on any enumerated
or analogous ground.

[222]

As to the mothers third claim, described in para. 212(iii) above,
it closely resembles the sex-based s. 15(1) claim that the mother tried,
unsuccessfully, to raise at the end of trial. While not strictly speaking a new
constitutional issue raised for the first time on appeal, I accept the
submission of the father and the AGO that the mother has failed to lead any
evidence to show a disproportionate impact on women in the operation of
CLRA
s. 40(3). Moreover, the mother and father did lead evidence specific to their
case about Dubai law and, as mentioned, the trial judge found, at para. 366(vi)
that:

[T]here 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 F., if contested, and (c)
approve the settlement proposal tendered by N., if agreed to by the mother.
[Emphasis in original.]

[223]

The mother has not demonstrated that that finding is tainted by
palpable and overriding error.

[224]

For these reasons, I conclude that the trial judge did not err in
dismissing the s. 15(1) claims advanced by the mother.

E.

CHARTER
S. 6(1)
CLAIM

The proceeding below

[225]

Section 6(1) of the
Charter
states: Every citizen of
Canada has the right to enter, remain in and leave Canada.

[226]

The mother advances s. 6(1) claims on behalf of both children. As
articulated in her Fresh as Amended Answer, the claims asserted are that the
children, as Canadian citizens, have constitutional rights under s. 6 of the
Charter
to remain in Canada, and any removal of the citizen-child from Canada against
the citizens consent, as expressed through the Mother, or as determined by a
best interest analysis in the ordinary course is a breach of s.6.

[227]

I would observe that, as articulated in this manner, the mothers
claim proceeds on a false predicate: it assumes, incorrectly, that at law the
mother possesses some superior right in the children to that of the father.

[228]

The trial judge dealt briefly with these claims in his reasons,
concluding that the return order made under
CLRA
s. 40(3) did not
banish or exile or deport, and thereby infringe the mobility rights of
anyone.

Issues on appeal

[229]

On appeal, the mother repeats her submission that the interest
protected by
s. 6 of the
Charter
is the right
of
the citizen children exercisable only in Canada to maintain the child-bond
with the psychological mother.

[230]

On his part, the father submits that neither
CLRA
s. 40(3),
nor return orders made thereunder,
infringe the
childrens s. 6(1)
Charter
rights
. That is because, practically
speaking, young children reside with their parents or guardians. If their s. 6
rights to remain in or leave Canada were engaged by a court order under
CLRA
s. 40(3), any outcome would potentially infringe the
Charter
.

[231]

The AGO argues that a family law order made on the basis of the best
interests of the child, which returns a child to a jurisdiction outside of
Canada pending the determination of a custody or access application in the
appropriate forum, is removed from the protected core of s. 6(1) of the
Charter
and does not infringe the childs s. 6(1) rights. This is particularly the case
because the
CLRA
only permits such an order where no serious harm to a
child would result.

[232]

It is the position of the OCL that for a court to order the removal
of a child from Canada against their will and in a manner that negatively
impacts their connections, including potential separation from the primary
caregiver, the court must first consider and give significant weight to the
impact on the childs enjoyment of the right to remain in Canada.

Analysis

[233]

What is the protection afforded by s. 6(1) of the
Charter
and how does it apply in the context of an order made under the authority of
CLRA
s. 40(3) directing the return of children to the country from which one parent
wrongfully removed them?

[234]

The starting point of the analysis remains the decision of the
Supreme Court of Canada in
United States of America v. Cotroni
, [1989]
1 S.C.R. 1469, where that court considered whether the surrender of a Canadian
citizen to a foreign state constituted an infringement of his right to remain
in Canada as found in s. 6(1) of the
Charter
and, if it did, whether
the infringement was justified under s. 1 of the
Charter
. Although the
court held, at p. 1482, that the central thrust of s. 6(1) is against exile
and banishment, the purpose of which is the exclusion of membership in the
national community, the court rejected the contention that s. 6(1) of the
Charter
would only apply when a Canadian citizen is threatened with exile, banishment,
or expulsion. Instead, drawing on the broad phrasing of s. 6(1)s guarantee of
the right to remain in Canada, the court held that [t]he right to remain in
one's country is of such a character that if it is to be interfered with, such
interference must be justified as being required to meet a reasonable state
purpose:
Cotroni
, at p. 1480. The court concluded that extradition
prima
facie
infringes upon the right guaranteed by s. 6(1) of the
Charter
:
at pp. 1479-81;
Divito v. Canada (Public Safety and Emergency Preparedness)
,
2013 SCC 47, [2013] 3 S.C.R. 157, at paras. 46-47.

[235]

However, the court went on to hold that the infringement was
justified under s. 1 of the
Charter
: the infringement to s. 6(1) that
results from extradition lies at the outer edges of the core values sought to
be protected by the provision; the impact of extradition on the rights of the
citizen is of secondary importance as an accused may return to Canada following
his trial (if acquitted) or completion of sentence; the objective of
extradition relates to concerns that are pressing and substantial, specifically
the investigation, prosecution and suppression of crime with an international
dimension for the protection of the citizen; and the means are proportional as
extradition practices have been tailored, as much as possible, for the
protection of the liberty of the individual:
Cotroni
, at pp. 1481-82,
1485, 1490.

[236]

Three decisions of this court have touched upon the relationship
between
CLRA
s. 40(3) and s. 6(1) of the
Charter
, but in none
was the court asked to consider squarely whether the operation of
CLRA
s. 40(3) has the effect of infringing a childs rights under s. 6(1) of the
Charter
.

[237]

Parsons v. Styger
(1989), 67 O.R. (2d)
1 (H.C.), affd (1989), 67 O.R. (2d) 11 (C.A.), was a case under the
Hague
Convention
in which the court granted a fathers application for return of
the infant child to California. The child had dual Canadian and American
citizenship. In response to an argument made by the mother resisting the return
on the basis of the childs rights as a Canadian citizen, the application judge
stated, at p. 10: As a Canadian citizen does [the child] have the right to
remain in Canada in defiance of The
Hague Convention
? I think not. No
more so than a Canadian citizen could defeat a Canadian [c]ourt extradition
order to a [t]reaty co-signatory member. In a very short endorsement, this
court dismissed the mothers appeal without commenting on the s. 6(1) argument.

[238]

In
J.P.B. v. C.B.
, 2016 ONCA 996, 2 R.F.L. (8th) 48, a
panel of this court had ordered that two children be returned to Germany in a
proceeding under the
Hague Convention
. The OCL moved for a stay of that
order pending an application for leave to appeal the panel decision to the
Supreme Court of Canada. Benotto J.A., sitting as a motion judge, dismissed the
stay motion. In the course of her reasons she addressed the OCLs argument
based on s. 6 of the
Charter
, stating, at paras. 27 and 28:

The OCL submits that the children, as Canadian citizens, have a
right to remain in Canada pursuant to s. 6 of the
Charter.
Children who have been
abducted from their country of habitual residence and brought to a country
where they are citizens are not immunized from the application of the Hague
Convention and may be ordered to return to a custodial parent in another
country:
see
Kovacs v. Kovacs
(2002),
59 O.R. (3d) 671 (S.C.), at para. 117.

The proposed appeal does
not raise a serious question to be tried
. [Emphasis added.]

[239]

Finally,
Ojeikere
concerned an order made under
CLRA
s. 40(3) that three children  12, 14, and 15 years old  be returned to
Nigeria. All were Canadian citizens. The majority reasons stated that the
factors to be considered in assessing the issue of serious harm under
CLRA
s. 23 included the risk of psychological harm to and the views of the children.
The majority regarded the Canadian citizenship of the children as an element of
a courts assessment of the risk of psychological harm, stating, at para. 85:

[T]he childrens desire to stay in Ontario is
reinforced by their citizenship. All three children are Canadian citizens who
would be entitled to stay here but for this custody dispute. Of course, the
views and objections of non-Canadian citizens would also be relevant under s.
23. But the childrens rights as Canadian citizens, rooted in their
constitutional right under s. 6(1) of the
Canadian Charter of Rights and
Freedoms
to remain in Canada, is an added consideration somewhat
increasing the risk of psychological harm from being ordered to return to
Nigeria.

[240]

Miller J.A., in his concurring reasons, queried the appropriateness
of including the childrens citizenship as a factor in the serious harm
analysis, in part because it would grant an implicit exemption to Canadian citizens
from the ordinary application of the
Hague Convention
. He noted, at
para. 122:

It is settled law, for example, that s. 6
(properly qualified by s. 1 considerations) does not preclude extradition,
given that the purpose of extradition is not exclusion from membership in the
national community:
United States of America v. Cotroni
,  [1989] 1
S.C.R. 1469, at p. 1482. Just as the extradited citizen is eventually free to
return to Canada, so too is the child citizen who, at the direction of one or
both parents, is relocated overseas.

[241]

The majoritys reasons in
Ojeikere
suggest that the weight
to be accorded to a childs Canadian citizenship in a serious harm analysis
will vary according to the age of the child and his or her consequent ability
to express their views, for Laskin J.A. wrote, at para. 78: A 15-year-old who
expresses a considered objection to returning to the country of habitual
residence is harmed far more by a forced removal than is, say, a
five-year-old.

[242]

Counsel also referred to the decision of the Saskatchewan Court of
Queens Bench in
J.S.S. v. P.R.S.
, 2001 SKQB 283, [2001] S.J. No. 380,
a case involving an application in respect of Article 12 of the
Hague
Convention
for the return to the United States of a 6-year old child who
was a Canadian citizen. In the proceeding, the mother, who had been granted
interim custody by a Saskatchewan court, contended that she thereby had the
standing to exercise the childs right under s. 6(1) to remain in Saskatchewan.
The application judge rejected that submission but went on to consider whether
a return order made under the
Hague Convention
would infringe the
childs s. 6(1) rights.

[243]

The application judge concluded it would not, stating, at para. 19:

The rights protected by s. 6(1) are not
infringed by family law orders relating to the custody or residence of a minor
child. Children do not have control over their own residence. They are always
subject to the direction of their parents or in the case of parental disputes
an order of the Court. While s. 6(1) protects a citizens right to stay in
Canada it also guarantees the citizens right to leave Canada. If a family law
order requiring that a child be returned to the United States breached the
childs right to stay in Canada, then equally the family law order requiring
the child to stay in Canada would breach the childs right to leave Canada. All
family law orders that contain any restriction on a childs residence would
prima
facie
infringe one or the other right under s. 6(1) and would have to be
justified under s. 1 of the
Charter
. If [J.S.S.]s argument were
correct there would be a substantial restriction on the power of the courts to
grant custody to parents who live outside of Canada.

[244]

In any event, the application judge regarded the return power in Article
12 of the
Hague Convention
as a reasonable limitation that was justified
under s. 1 of the
Charter
.

[245]

Notwithstanding that the weight of the jurisprudence suggests return
orders do not infringe a childs s. 6(1) rights, I think the generous
interpretation of that right as formulated in
Cotroni
and
Divito
directs a different conclusion, namely that an order made under
CLRA
s. 40(3) to return a Canadian citizen child to a place outside of Canada
prima
facie
infringes the childs
Charter
right to remain in Canada. I
see no analytical utility in characterizing such an order as near, on the outer
edge, or having fallen off the table of the core values protected by s. 6(1).
Cotroni
emphasized the broad language of s. 6(1), and a return order
made under
CLRA
s. 40(3) clearly prevents a child from remaining in
Canada.

[246]

However, just as with extradition orders, such a
prima facie
infringement is justified as a reasonable limit under s. 1 of the
Charter
.
Considering each element of the s. 1 analysis in turn:

(i)

CLRA
s. 40(3)
addresses pressing and substantial objectives: to remedy the harms caused to a
child and the parent left behind by the wrongful removal of a child; to
discourage the abduction of children as an alternative to the determination of
decision-making responsibility by due process; and to ensure that issues
concerning the custody of a child are determined by a tribunal having
jurisdiction in a place other than Ontario with which the child has a closer
connection;

(ii)

There is a clear connection between those
objectives and the means chosen to implement them in
CLRA
s. 40(3):
the provision is remedial in nature as it seeks to restore the childs
status
quo

ante
, or position before his or her wrongful removal;

(iii)

The provision meets the requirement of minimal
impairment: the harm the provision seeks to remedy is the childs wrongful
removal; no other remedy would right that wrong; and

(iv)

The
Charter
infringement of the childs
s. 6(1) rights is not too high a price to pay for the benefit of the law:
Hogg
, at §38.12. Section 40(3) is only
triggered by a finding that a child has been wrongfully removed to or retained
in Ontario. As the jurisprudence has explained repeatedly, the wrongful removal
of a child is a bad thing; it harms the child; it is to be discouraged. But, as
described earlier in these reasons, before issuing a removal order under
CLRA
s. 40(3) a court must examine the circumstances of the wrongful removal and
retention, together with its effect on the child, including the serious harm a
child might suffer if returned. Assessed in the context of that statutory
regime,
CLRA
s. 40(3) works a proportionate effect.

[247]

Accordingly, I conclude that
CLRA
s. 40(3) does not violate
the s. 6(1)
Charter
rights of the two children. I therefore see no
error in the trial judges dismissal of the s. 6(1) claims advanced by the
mother and give no effect to this ground of appeal.

F.

CONCLUSION ON THE
CHARTER
CLAIMS

[248]

For the reasons set out above, I see no error in the trial judges
dismissal of the mothers claims, on behalf of herself and the children, that
CLRA
s. 40(3)
violates their various rights guaranteed by ss.
2(a), 6(1), 7, and 15 of the
Charter
.

IV.

DISPOSITION

[249]

I join with Hourigan J.A. in dismissing the mothers motion for
leave to file the fresh evidence and her appeal.

David Brown
J.A.

Lauwers J.A. (dissenting):

A.

INTRODUCTION

[250]

I would allow the appeal in this difficult case and therefore
dissent, for the reasons that follow.

[251]

I have had the benefit of reading the reasons of my colleague,
Hourigan J.A. The basis for our disagreement is explained at length in our respective
reasons. Here I briefly address four of his criticisms.

[252]

First, I take no issue with my colleagues articulation of the
standard of appellate review or its purposes in preventing result-selective
reasoning by appellate courts. As I will explain, the trial judge made legal
errors that warrant reversal in his interpretation and application of ss. 23
and 40 of the
Children's Law Reform Act
, R.S.O. 1990, c. C.12 ("
CLRA
").

[253]

Second, in my view the trial judge failed to take into account
Mothers peculiar vulnerability as a foreign national, and as a woman
undergoing a divorce process in Dubai under the laws of the UAE, with its
effects on the children. The expert evidence of both parties clearly
demonstrated Mothers precarious residency status. This gave rise to an
evidentiary burden that Father, with whom all the relevant power rests, did not
dispel. His arrangements to address her precarious residency status were all
unacceptably contingent. The suggestion that I reversed the legal onus on that
issue is unfounded.

[254]

Third, the defects in Fathers case are not endemic to UAE law, so
any suggestion that my approach would set an iron-clad precedent is unfounded.
One can imagine cases in which a mothers residency status is not precarious.
In any event, courts are well able to deal with forum-shopping.

[255]

Finally, the trial judge did not accept Mothers expert evidence on
the specific impact of separation from her on the children. He found that the
impact was unknown. In my view the risk of this harm was precisely what the trial
judge had to assess in order to make determinations under ss. 23 and 40 of the
CLRA
.

[256]

I now turn to the factual background.

[257]

This is an international parenting dispute.
[5]
It is
governed by ss. 23 and 40 of the
CLRA
because Dubai is part of the
United Arab Emirates (UAE), which is not a signatory to the
Hague
Convention
,
[6]
unlike Canada. The court below declined jurisdiction and ordered the return of
the children to Dubai for parenting orders to be made there.

[258]

The father, N., and the mother, F., were married in Pakistan in
2012. For convenience, I will refer to the mother as Mother and to the father
as Father throughout. They have lived in Dubai their entire married lives.
Father is a Pakistani national. Mother was born in Pakistan and is a Canadian
citizen. She lived in Canada with her family from the age of 15 until her
marriage to Father, when she moved to Dubai. She has family in Ontario whom she
usually visits for about three weeks each year. Daughter, Z., was born in
Ontario in 2016 and is a Canadian citizen. Son, E., was born in Dubai in 2019
and is also a Canadian citizen.

[259]

Neither party nor their children are citizens of the UAE. Mother has
no independent status to reside in the UAE. She and the children were sponsored
by Father and are subject to his UAE residency permit. Father is seeking a
divorce in the UAE. Under UAE law, if Mother does not secure a residency permit
within a one-year grace period after the divorce, she will be required to leave
the UAE, likely without the children.

[260]

On June 19, 2020, Mother travelled to Ontario with Z. and E. to
visit family for one month. Father consented to the trip but did not consent to
Mother moving the children to Ontario permanently. On or around July 2, 2020,
Mother told Father that she and the children were not returning to Dubai. She
cancelled Z.s enrollment in school in Dubai and enrolled her in school in
Ontario.

[261]

Father objected and applied to the Ontario Superior Court for an
order returning the children to the UAE under s. 40 of the
CLRA
.
Mother, in response, asked the court to exercise jurisdiction under s. 23 of
the
CLRA
and to make parenting orders.

[262]

The trial judge found that he could not exercise jurisdiction under
s. 22 of the
CLRA
. He declined to exercise jurisdiction under s. 23
because he was not satisfied, on a balance of probabilities, that the children
would suffer serious harm if they were removed from Ontario and returned to
Dubai. The trial judge then exercised his discretion under cl. 3 of s. 40 of
the
CLRA
and ordered that the children be returned forthwith to
Father in Dubai. He was satisfied on the evidence that the children were being
wrongfully retained in Ontario by Mother under s. 40(a). He dismissed
Mothers constitutional challenges to the legislation. The Attorney General of
Ontario intervened on those constitutional challenges at first instance and in
this court. The Office of the Childrens Lawyer also intervened on the
constitutional challenges, but only in this court.

B.

OVERVIEW

[263]

The trial judge reached three basic conclusions. First, he found
that the children are not habitually resident in Ontario but rather in Dubai.
[7]
The children had no real and
substantial connection to Ontario.
[8]
He also found that the parties did not share the intention to permanently
relocate the family to Canada.
[9]
In my view, these factual findings are right. Consequently, the trial judge
found that he could not exercise jurisdiction under s. 22(1)(b) of the
CLRA
.
[10]
This legal conclusion is also
right.

[264]

Second, the trial judge was satisfied on the evidence that Mother
had wrongfully retained the children in Ontario,
[11]
giving him authority to make
an order returning the children to Father in Dubai under s. 40, cl. 3 of the
CLRA
.
Again, this factual finding and the legal conclusion that follows from it are
both right.

[265]

However, the trial judges third conclusion is problematic. He found
that a Dubai court would, on his view of the expert evidence, decide custody
based on the childrens best interests.
[12]
He concluded, therefore, that in the pending proceeding in Dubai brought by
Father, there is no risk of serious harm to the children if they are returned
to Dubai that could trigger the application of s. 23 of the
CLRA
.
[13]

[266]

This appeal turns on whether, in his approach to ss. 23 and 40 of
the
CLRA
, the trial judge considered the relevant principles in
assessing the risk of serious harm to the children. In my view, he failed to do
so and made legal errors that warrant reversal.
[14]

C.

iSSUES

[267]

Mothers numerous grounds of appeal compress into three issues:

1.

What is the nature of Ontarios interest in the parties parenting
dispute?

2.

Did the trial judge err in ordering that the children be returned to
Father in Dubai?

3.

Is the provision of Ontarios legislation that permits such a return
order unconstitutional?

[268]

I do not address the constitutional issues in this dissent.

D.

ISSUE ONE: WHAT IS THE NATURE OF ONTARIOS INTEREST
IN THE PARTIES CUSTODY DISPUTE?

[269]

This case is framed by the fact that Mother is withholding the
children, who are habitually resident in Dubai. As a policy matter, Canada and
Ontario deplore the wrongful withholding or retention of children who, while
physically present in Ontario, are habitually resident elsewhere. Section 19 of
the
CLRA
discourages the abduction of children as an alternative to
determination by due process.

[270]

This perspective on wrongful retention of children is reinforced by
Canadas subscription to the
Hague Convention
, which aims to secure the
prompt return of children wrongfully removed to a contracting state and obliges
contracting states to take various measures towards that goal, including
ordering the childs return in most circumstances. Section 46 of the
CLRA
incorporates the
Hague Convention
into law in Ontario. In wrongful
retention cases where the children are habitually resident in a contracting
state, the provisions of the
Hague Convention
apply.

[271]

However, in this case, the jurisdictional and extra-provincial
provisions of the
CLRA
govern because the UAE is not a signatory to
the
Hague Convention
. Even though Canada and Ontario have set their face
against child abduction and wrongful child retention, there are circumstances
in which an Ontario court will consider the application of a parent for custody
in Ontario. In both ss. 23 and 40 of the
CLRA
, the best interests of
the child pose a potentially countervailing policy influence against the
policy favouring the return of wrongfully retained children.

(1)

The role of the best interests of the child in
interpreting and applying ss. 23 and 40 of the
CLRA

[272]

The Supreme Court of Canada has noted often that in interpreting
legislation the court must heed the text, the context and the purpose of a
provision. The concept of the best interests of the child plays a basic role
in interpreting and applying ss. 23 and 40 of the
CLRA
. Section 19(a)
specifies expressly that one of the purposes of Part III of the
CLRA
,
which includes ss. 23 and 40, is to ensure that matters are determined on the
basis of the best interests of the children. While s. 23 does not use the
phrase, cl. 1 of s. 40 gives the court authority to: Make such interim
parenting order or contact order as the court considers is in the best
interests of the child.

[273]

Section 24(2) of the
CLRA
requires a court, in determining
the best interests of a child, to consider all factors related to the
circumstances of the child and to give primary consideration to the childs
physical, emotional and psychological safety, security and well-being. In s.
24(3), a non-exhaustive list of factors related to the circumstances of a child
is provided. These factors will often be relevant in assessing whether a risk
of serious harm exists under s. 23, and in determining whether a return order
should be made under s. 40.

[274]

What goes into an assessment of the best interests of the child will
vary with the context. Section 21 contemplates a full-scale assessment but that
is not expected under either s. 23 or s. 40. Nonetheless, in exercising
authority under both ss. 23 and 40, the court must be alive to the issue.

[275]

In
H.E. v M.M.
, 2015 ONCA 813, 393 D.L.R. (4th) 267, at
para. 82, leave to appeal refused, [2016] S.C.C.A. No. 63, Weiler J.A. noted
that because [c]hildren have no control over where their parents litigate,
[t]he
CLRA
mandates a child-centered approach based on the best
interests of the child in discouraging child abduction. Laskin J.A. pointed to
the primacy of the best interests of the child in
Ojeikere v. Ojeikere
,
2018 ONCA 372, 140 O.R. (3d) 561, at paras. 13, 16 and 17. Assessing best
interests requires a holistic approach:
M.A.A. v D.E.M.E.
, 2020 ONCA
486, 152 O.R. (3d) 81, at para. 44,
per
Benotto J.A., leave to appeal
refused, [2020] S.C.C.A. No. 402. Benotto J.A. added, at para. 76: When the
issue is potential harm to children, the courts must always be guided by the
childrens best interests.

[276]

The exercise of the courts discretion under both s. 23 and s. 40
must be guided by the imperative of the best interests of the children.

(2)

The governing principles regarding the serious
harm exception

[277]

I now turn to consider the serious harm exception in s. 23(b)(iii)
of the
CLRA
, which allows the court to exercise jurisdiction to make a
parenting or contact order even though the child is not habitually resident in
Ontario and is, as here, being wrongfully retained in Ontario, where the child
would, on the balance of probabilities, suffer serious harm if removed from
Ontario.

[278]

What constitutes serious harm? The context for considering this
question is that the foreign jurisdiction, the UAE, has declined to sign the
Hague
Convention
, whose signatories are, according to the Conventions preamble,
[f]irmly convinced that the interests of children are of paramount importance
in matters relating to their custody. The adherence by signatories to
reciprocal obligations under the Convention gives Ontario courts some
confidence that, in the signatory foreign jurisdiction, custody will be decided
based on the childs best interests. By contrast, [i]n cases decided under s.
23, an Ontario court will not always have the same assurance that a
non-signatory country will, as Ontario does, put the best interests of children
first:
Ojeikere
, at para. 61,
Geliedan v. Rawdah
, 2020 ONCA
254, 446 D.L.R. (4th) 440, at paras. 37-38, leave to appeal refused, [2020]
S.C.C.A. No. 193.

[279]

The exercise of the courts discretion under s. 23 should be guided
by principle. As Laskin J.A. noted in
Ojeikere
, at para. 63, the
relevant factors will vary from case to case. He added: In some cases, one
factor may decisively show serious harm; in other cases a combination of
relevant factors may do so. One or more of the factors listed in s. 24(3)
might be relevant to this determination. The threshold for demonstrating
serious harm under s. 23 is lower than the standard under the
Hague
Convention
, which requires a grave risk of an intolerable situation:
Ojeikere
,
at paras. 58-59, 62;
M.A.A. v. D.E.M.E.
, at para. 43,
Thomson v.
Thomson
, [1994] 3 S.C.R. 551, at pp. 596-597, [1994] S.C.J. No. 6, at
para. 80.

[280]

The court must assess both the likelihood and the severity of a risk
of future harm:
Ojeikere
, at para. 62. Where a risk of serious harm
exists, the aim of discouraging child abduction must yield to the best
interests of the child:
H.E. v. M.M.
, at para. 87. The objective of
discouraging child abduction then becomes secondary to the aim of preventing
serious harm to the child:
Ojeikere
, at para. 39.

(3)

The application of the governing principles

[281]

The possible serious harm at issue in this case is the effect on the
children of Mothers involuntary separation from them. I note that my
colleagues reasons refer to this courts comments in
Ojeikere
that a
parent should not be able to voluntarily refuse to return to the habitual
residence and then rely on the serious harm that separation from her would
create. That is not the issue in this case. Here, on the facts as found by the trial
judge, the mothers lack of status in the UAE may force her involuntary
separation from the children. The trial judge did not mention this possibility
in considering the risk of serious harm under s. 23. He referred to the
possibility of adverse impacts if Z. and E. are returned to Dubai without
Mother and to her claim that she will not return to Dubai if the children are
ordered to return there, before commenting that there is nothing else in the
evidence at trial that this court finds to be relevant to the serious harm
assessment for Z. and E.
[15]
The trial judge failed to properly assess the harm of an involuntary separation
and, in so doing, made a palpable and overriding error.

[282]

The risk of this harm emerges from the intersection of three
different elements: the precariousness of Mothers residential status in Dubai;
the uncertain status of the proposed consent order on which the trial judges
decision hinged, particularly if Father were to change his mind and not take
out the consent order in Dubai or to later countermand it; and the unacceptable
nature of the allocation of parenting responsibilities between Father and
Mother if the situation reverted to UAE law. I address each element in
sequence, after describing the serious harm in issue.

(a)

Separation of Mother from the children would constitute serious harm

[283]

One of the factors referred to in s. 24(3) is the nature and
strength of the childs relationship with each parent. The trial judge found
that Mother is and has always been the primary caregiver for Z. and E.
[16]
He found that Mother had
fulfilled this role well, describing her as a loving and caring and devoted
mother who has been a powerful force in the lives of these two children and
has so much to offer them.
[17]
Comparatively, the trial judge found that Father had always been less involved
in their care.
[18]

[284]

Mothers expert witness, Carol-Jane Parker, gave

evidence on the potential impact on
infants, including Z. and E., of separation from their primary caregiver. The trial
judge accepted Ms. Parkers evidence that [b]rain development in an infant is
impacted where there is a loss of consistency that the primary caregiver
provides.
[19]

[285]

However, the trial judge declined to accept Ms. Parkers evidence as
to what would happen to Z. and E. if they were separated from Mother.
[20]
On a
voir dire
, Ms. Parker had said that she
was not able to express an opinion about Z. and E. with any degree of
certainty.
[21]
In her evidence, she expressed opinions about Z. and E. with a very high
degree of certainty.
[22]
This inconsistency left the trial judge unable to rely on Ms. Parkers opinion
evidence on the likely impact of separation on Z. and E., in particular.

[286]

The trial judge accepted that as for whether infants, generally,
face potential adverse impacts, emotional and psychological, upon separation
from their primary caregiver, the answer is, undoubtedly, yes.
[23]
But he went on to find that
as for whether that would occur here, with Z. and E., if separated from
[Mother], the answer is unknown.
[24]

[287]

The trial judge made a palpable and overriding error in finding
that, because he could not accept the expert evidence offered on the specific
impact of separation on Z. and E., that impact was unknown. The risk of this
harm was precisely the issue that the trial judge needed to determine, on the
evidence available to him, to make determinations under ss. 23 and 40.

[288]

The absence of expert evidence on the specific impact on Z. and E.
did not render him unable to make this determination. Z. and E. are very young
children. Z. is four years-old, and E. is not yet two. The trial judge accepted
that Mother is their primary caregiver. The particular role and emotional
bonding the child enjoys with his or her primary caregiver and [t]he
importance of preserving the childs relationship with his or her psychological
parent are well recognized:
Gordon v. Goertz
, [1996] 2 S.C.R. 27, at
para. 121,
per
L'Heureux Dubé J. (concurring). This relationship may
be the most determinative factor on the childs long-term welfare:
Gordon
,
at para. 121. No further evidence was needed to conclude that separating Z. and
E. from Mother would put them at risk of serious harm.

[289]

In
Ojeikere
, Laskin J.A. stated, at para. 92, in connection
with much older children, that, [t]here may be cases where a parents refusal
to accompany the children back to the country of habitual residence could give
rise to a serious risk of harm to the children. Laskin J.A. did not give
weight to this factor because, in the circumstances of that case, the mother
had simply asserted that there was nothing for her in returning to the habitual
residence of Nigeria. The mother was born in Nigeria and there was no legal
impediment to her returning to and staying in Nigeria with the children.

[290]

If a parents voluntary refusal to return to the country of habitual
residence with teenage children could give rise to a serious risk of harm, it
follows that so could a
primary
parents
legal inability
to
remain with her young children in the country of habitual residence.

[291]

In my view, an indefinite separation of two quite young children,
one under two years and the other only four, from the parent who has always
been their primary caregiver, constitutes a risk of serious harm. This finding
can be reached without any expert evidence on the specific impact such a
separation is likely to have on Z. and E. in particular. A risk of serious harm
is established if the court is convinced on a balance of probabilities that
this separation will occur.

(b)

Mothers residential status in the UAE is
precarious

[292]

The trial judge did not give due weight to Mothers precarious
residency status in the UAE. She has no legal right to remain in the UAE. Her
residency permit is and has always been contingent on Fathers residency
permit. Father proposed several ways to mitigate the risk of separation due to
her loss of residency, but none is assured. There is no solid legal arrangement
that mitigates the risk of harm to the children.

[293]

As noted, after the parties divorce, Mother will have a one-year
grace period in which to secure a new residency permit.
[25]
She could do so if Father
buys real estate of a certain value in her name.
[26]
In a with-prejudice letter
from his counsel, dated October 30, 2020, Father undertook to buy a property in
Mothers name, to be held in trust for Z. and E.
[27]
However, as the trial judge
noted, Father has provided no evidence to substantiate his financial ability to
do so.
[28]

[294]

On the facts found by the trial judge, Mother could not secure a
residency permit independently. Instead, she would be reliant on Father fulfilling
his undertaking. In a proposed settlement agreement, Father also agrees to
procure, either directly or through a third party a residency visa for
[Mother] at all times.
[29]
The copy of this agreement in the record is not signed by either party.
[30]

[295]

The trial judge did not consider whether Fathers undertaking would
be enforceable in Dubai and made no findings on the recourse available to
Mother if Father were to rescind or fail to fulfil his undertaking, or to later
countermand the consent order. Without such recourse, Mothers ability to
secure a residency permit would be entirely within Fathers control.

[296]

In short, Father has not proven his ability to mitigate Mothers
precarious residency status.

(c)

The proposed consent order is unacceptably
contingent

[297]

The trial judge was clearly reassured by Fathers proposed
settlement agreement, referred to in the October 2020 with-prejudice letter
from Fathers counsel, which the trial judge reproduced in his reasons.
[31]
The letter states that the
proposals terms could be included as an order of the court as a condition of a
return order under s. 40, and that [t]he terms herein will be made into a
consent Order/Judgment issued by the court in the UAE.

[298]

Under Fathers settlement proposal, he would secure a residency permit
for Mother, she would remain the childrens primary caregiver, they would share
decision-making, and Father would provide financial support.
[32]

[299]

Both parties called expert witnesses on family law in the UAE. The
application judge accepted the evidence of Diana Hamade, Fathers expert, in
full, and preferred it over the evidence of Elena Schildgen, Mothers expert.
[33]

[300]

Ms. Hamade stated that settlement agreements made between parents
are respected by the courts in the UAE.
[34]
Ms. Schildgen admitted in cross-examination that people in the UAE that
separate and have children regularly turn to agreements to share
decision-making and parenting time, and that those agreements are then made
into and enforced as judgments of the court.
[35]

[301]

Based on this evidence, the trial judge found that:

[A]s for whether the settlement proposed by
[Father], if agreed to by [Mother], will be able to be incorporated into a
valid court order in Dubai, approved by the court in Dubai, and enforceable as
a valid court order in Dubai, the answer is, unreservedly, yes.
[36]

The trial judge repeated this finding
in his conclusions on s. 23.
[37]

[302]

As with the undertaking to secure residency for Mother, the trial
judge does not appear to have considered whether Fathers settlement proposal,
in its current form, is actually enforceable in Dubai at Mothers instance. At
present, it is no more than a proposal. While I acknowledge the trial judges
finding that Father was significantly more credible than Mother, his
credibility cannot be relied upon to presume that he will honour the proposal
he has made.
[38]
There does not appear to be anything preventing Father from rescinding this
proposal and either making a new proposal on less favourable terms, or refusing
to enter into a settlement agreement at all. Fathers proposed consent order is
unacceptably contingent.

(d)

If UAE law were to prevail, Mother would not
have the incidents of custody contemplated by Ontario law, to the detriment of
the children

[303]

If Father were to rescind or unacceptably alters the settlement
proposal, UAE law would govern the parenting dispute. The risk of Mother
becoming separated from the children due to her residency status must therefore
be considered in the context of family law in the UAE.

[304]

The trial judge found that the best interests of Z. and E. would be

the paramount
consideration in determining custody in a court in Dubai (emphasis
in the original).
[39]
He commented that the best interests of the child means everything in custody
proceedings in Dubai.
[40]
However, a review of the expert evidence, and the trial judges findings,
demonstrates that the best interests of the child are  to use the language of
the
CLRA
 applied
only in disputes over parenting time, and not to determine the division of
decision-making responsibility.

[305]

The expert evidence concerning Dubai law might have lulled the trial
judge into a false sense of security that Dubais understanding of the term
the best interests of the child substantially resembles Ontarios
understanding. While I agree with his statement that the foreign legislation
need not duplicate Ontarios legislation,
[41]
the fact that it might fall far short must be a relevant consideration to an
Ontario court.

[306]

The trial judge reproduced the entirety of Ms. Schildgens
cross-examination in his reasons and placed great emphasis on her admissions
about the UAEs
Personal Status Law
, which governs parenting disputes.
[42]
Ms. Schildgen admitted that while the UAE legislation does not say best
interests, there is no expression in Arabic that equates to best interests.
[43]
However, the phrase
interests of the child in the legislation has been applied to mean best
interests of the child.
[44]
The trial judge commented:

The cross-examination of Ms. Schildgen at
trial eviscerated the very underpinning of the mothers case that is that the
children cannot be returned to Dubai because this Court can have no confidence
that any decision made there regarding their welfare will be based,
as the paramount consideration
, on their best interests. Ms. Schildgens evidence in
cross-examination points precisely to the opposite conclusion. [Emphasis in the
original.]
[45]

[307]

The fact that the law in the UAE uses an expression equivalent to
best interests of the children cannot determine the issues in this case. It
is not the language of the law but its substance that governs.

[308]

The experts agreed that, in the UAE, upon divorce, a mother will
usually have what they call custody of the children, and the father will have
what is called guardianship.
[46]
The experts also agreed that what they were referring to as custody amounted
to care of the children.
[47]
Fathers, as guardians, are assured decision-making power. A mother can lose
custodial rights upon the children reaching a certain age (11 for a male child,
13 for a female child), or if she remarries.
[48]
The expert evidence at trial established that this loss of custodial rights is
not automatic and depends on the best interests of the children involved.
[49]

[309]

When asked what role the best interests of children plays in the
courts decision-making process and within the legislation, Ms. Hamade
responded that it is taken into account when we talk about the end of the
custody years of children.
[50]
In cross-examination, Ms. Schildgen agreed that the principle that custody
shall revolve around the interests of the child had been applied in hundreds
of cases in Dubai.
[51]
She agreed that a court in the UAE has to consider the best interests of the
children if custody is disputed upon them reaching the age where a mother can
lose custodial rights, or when the mother remarries.
[52]
The best interests of
children are also considered when a father seeks custody.
[53]

[310]

The trial judge, after reproducing Ms. Schildgens
cross-examination, commented that Ms. Schildgen agreed that the best interests
of the child determine all decisions of the court, regardless of whether the
decision is being made
at first
instance
, or when the children turn certain
ages, or when the mother remarries, or whenever the decision is being made
(emphasis added).
[54]
In fact, neither expert provided evidence that the best interests of the child
are taken into account in any kind of first instance decision on parenting
arrangements.

[311]

Instead, both experts suggested that the initial allocation of
parenting responsibility is automatic, with custody (care of the children)
going to the mother and guardianship (decision-making) to the father. Ms.
Hamade stated that, generally, custody in the United Arab Emirates goes to the
mother, while guardianship is with the father.
[55]
Ms. Schildgen stated that
custody goes to the mother, while the father gets guardianship.
[56]
The experts described the
difference between custody and guardianship in similar terms. According to Ms.
Schildgen, custody, essentially, means day to day care.
[57]
Ms. Schildgen and Ms. Hamade
agreed that the guardians role is tied to finances, and that the guardian
makes the major decisions, including on the childrens education and religion.
[58]

[312]

The trial judge appears to have accepted that without an enforceable
settlement agreement, and without any best interests of the child analysis
being performed by the Dubai court, Mother and Father would occupy the
prescribed custody and guardianship roles described by the experts. He
states:

I accept the evidence of both Ms. Hamade and
Ms. Schildgen that [Mother] will be granted custody of the children in Dubai,
and that means day to day care and the decision-making authority that goes
along with that. Further, I accept the evidence of Ms. Hamade that the rights
of the custodian are not subject to those of the guardian. Besides, the fact
that the guardian, [Father], is able to make certain decisions about the
children is of no consequence here, in terms of prejudice to [Mother], because
the evidence demonstrates that things like education and religion were not
subjects of dispute between the parties by the time that [Mother] left with the
children in June 2020. There is simply no basis in the evidence at trial to
conclude that the custodial rights of [Mother] in Dubai will be some illusory
concept that will not have any real meaning to it. I find otherwise.
[59]

[313]

Decision-making responsibility is defined in s. 18(1) of the
CLRA
as responsibility for making significant decisions about a childs well-being,
including with respect to, (a) health, (b) education, (c) culture, language,
religion and spirituality, and (d) significant extra-curricular activities. In
the UAE, according to both experts, all decision-making responsibility is
reserved to the guardian.

[314]

This automatic assignment of decision-making power to fathers is in
direct contrast to s. 20(1) of Ontarios
CLRA
, which, at the date of
trial, provided: Except as otherwise provided in this Part, a childs parents
are equally entitled to custody of the child. This provision was updated:
Except as otherwise provided in this Part, a childs parents are equally
entitled to decision-making responsibility with respect to the child. The
change is one of terminology, not philosophy.

[315]

Section 19 of the
CLRA
clearly states that one of the
purposes of the parenting order provisions is:

[T]o 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. [Emphasis added.]

One of the factors pertaining to the
best interests of the child analysis, listed in s. 24(3), is (h) the ability
and willingness of each person in respect of whom the order would apply to care
for and meet the needs of the child.

[316]

The automatic assignment of decision-making responsibility to one
parent is not, as the trial judge found, of no consequence. It is a
pronounced departure from Ontarios understanding of the best interests of the
child in determining parenting arrangements.

[317]

Equal entitlement of parents to decision-making responsibility is
one very significant way in which Ontarios legislation puts the best interests
of children first. Where parents disagree, the court will choose the parent
whose decisions will best promote the childrens best interests to make
decisions. A system that automatically entitles a father to responsibility for
all major decision-making deprives the court of the opportunity to grant
decision-making responsibility to the parent who will best promote the
childrens best interests. On the trial judges own findings, in the UAE,
decision-making responsibility would not be determined based on the best
interests of the children as Ontario understands them.

[318]

This is particularly problematic in this case. The trial judge did
not consider whether, absent a settlement agreement, and as custodian and not
guardian, Mother would be able to take Z. and E. with her if she were forced to
leave the UAE due to her precarious residency status. Evidence accepted by the trial
judge strongly suggests that she would not be able to do so.

[319]

Ms. Hamades expert report states:

A mother must live near to the father of the
children otherwise may lose custody. It must be noted that the mother can
relocate with the children to another state without forfeiting custody, if she
so desires however the move should not harm the father or cause him hardship in
travelling to see the children, hence the distance between the location of the
mother and the father must not be too great.
[60]

[320]

Ms. Hamade also states that, in the UAE, either parent can make an
ex parte
application to the court for a
travel ban to prevent the children from leaving the UAE with the other parent.
[61]
This suggests both that
Mother would not be permitted to leave the UAE for Canada with her children
over the objections of their guardian, Father, and that he could prevent Mother
from doing so by obtaining a travel ban.

[321]

Ms. Schildgens report points to several parts of the UAEs
Personal Status Law
that support this
conclusion. Article 149 states: It shall not be permissible for the custodian
female to travel with the child in custody abroad except with the approval of
the status guardian in writing. Ms. Schildgen states that under arts. 150(2)
and 152, Mother could lose her custodial rights if she moved out of the UAE. Ms.
Schildgen also states that Father, as guardian, would have the right to keep
the childrens passports, pursuant to art. 157.
[62]

[322]

Based on the expert evidence, UAE law would not confer on Mother the
ability to take Z. and E. with her if her residency status lapsed and she were
forced to leave the UAE.

(4)

Conclusions on s. 23

[323]

The trial judge erred in his approach to s. 23 of the
CLRA
and in his treatment of the evidence.

[324]

To recapitulate, separating Mother from the children would
constitute serious harm to them and would be inconsistent with their best interests.

[325]

Mothers residential status in Dubai is undoubtedly precarious on
the evidence. The trial judge made a palpable and overriding error in failing
to give any practical weight to this fact. Father has not proven his financial
ability to remedy Mothers precarious residency status, which is entirely under
his control.

[326]

The consent agreement proposed by Father is unacceptably contingent.

[327]

Further, at the moment there is no negotiated parenting agreement
that might apply to the familys life in Dubai. There is no evidence that a
negotiated settlement agreement in a form acceptable to Mother and reasonably
congruent with the best interests of the children under Ontario law would be
enforceable in Dubai at Mothers instance if Father changed his position.

[328]

On the evidence, in the absence of a settlement agreement, a
parenting determination by the Dubai courts would not be made based on the
childrens best interests, as understood under Ontario law. This court held in
H.E.
v. M.M.
, at para. 30, that Egyptian law, under which fathers are
automatically decision-makers while physical custody remains with the mother
until the children turn 15, would not determine custody based on the best
interests of the child.

[329]

The number of contingencies left open by the trial judge gives rise
to a real risk that Z. and E. could suffer the serious harm of being separated
from their primary caregiver, Mother. I am satisfied on the record that the
children would, on the balance of probabilities, suffer serious harm if they
were removed from Ontario and returned to the UAE. In my view, an Ontario court
may exercise its jurisdiction pursuant to s. 23 to make parenting orders. The
matter should proceed to a hearing on what parenting orders would be in these
childrens best interests. Father may present evidence to allay the concerns
identified and to satisfy the court that residing in Dubai would be in these
childrens best interests, which could lead to a parenting order under s. 21
requiring their return to Dubai.

E.

ISSUE TWO: DID THE TRIAL JUDGE ERR IN ORDERING
THAT THE CHILDREN BE RETURNED TO FATHER IN DUBAI?

[330]

Section 40, cl. 3 of the
CLRA
allows a court to order a childs return to another jurisdiction in
cases of wrongful retention to which the
Hague
Convention
does not apply.
The trial judge, acting under this provision, ordered that Z. and E.
be returned forthwith to Father in Dubai.
Because I
would find that Ontario should exercise jurisdiction under s. 23, a return
order under s. 40 is not available. However, the trial judges reasons on s. 40
require comment.

[331]

Where a court finds no risk of serious harm, and so refuses to
exercise jurisdiction under s. 23, a return order under s. 40, cl. 3 does not
automatically follow. Section 40 lists things that a court may do. While art.
12 of the
Hague Convention
obliges a court that does not find a grave
risk under art. 13 to order a childs return, s. 40 does not operate in the
same manner, because unlike under the
Hague Convention
, the court is
given broad discretionary powers when determining what order will remedy a
wrongful removal to or retention in Ontario:
Geliedan
, at para. 69.

[332]

The trial judge agreed that the return order is discretionary,
citing
Geliedan
, but
stated the mothers counsel offer no other potential alternative.
[63]
While alternatives may be
relevant in exercising the discretion provided by s. 40, cl. 3, it is not
incumbent on a party opposing return to provide an alternative.

[333]

The Office of the Childrens Lawyer intervened on this appeal and
argued that, in exercising the discretion to make a return order under s. 40,
cl. 3 in a non-
Hague Convention
case, courts must consider whether the return order is in the
overarching best interests of the child. I agree.

[334]

The trial judge agreed with Mother that, in
Young v. Young
, [1993] 4 S.C.R. 3, all
of the Judges agreed that the best interests of the child is
the
, not merely
one of the, and not merely a, consideration that must govern all decisions
regarding the welfare of children, whether custody or access (emphasis in the
original).
[64]
Yet, the trial judge disagreed that a fulsome best interests of the child
analysis is necessary before making a return order under s. 40, cl. 3.
[65]
He asked: What does that
mean  a fulsome best interests of the child analysis? The application of
section 24 and an award of custody to one of the parents, on the merits?.
[66]

[335]

The trial judge appears to have viewed the best interests of the
child analysis as an all-or-nothing exercise specific to the determination of
custody disputes. It is not.

[336]

The best interests of the child principle is widely understood and
accepted in Canadas legal system:
Kanthasamy v.
Canada (Citizenship and Immigration)
, 2015 SCC 61,
[2015] 3 S.C.R. 909, at para. 36. Canada has ratified the
Convention on the Rights of the Child
,
20 November 1989, Can. T.S. 1992 No. 3 (entered into force 2 September 1990),
and [t]he values and principles of [that] Convention recognize the importance
of being attentive to the rights and best interests of children when decisions
are made that relate to and affect their future:
Baker
v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817, at para. 71. The childs best interests must
be the primary consideration [w]henever a child is affected by a court or
government process:
Ontario (Childrens Lawyer) v.
Ontario (Information and Privacy Commissioner)
,
2018 ONCA 559, 141 O.R. (3d) 481, at para. 58, leave to appeal refused, [2018]
S.C.C.A. No. 360.

[337]

The application of the best interests of the child principle is
highly contextual:
Canadian Foundation for
Children, Youth and the Law v. Canada (Attorney General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 11. The relevant factors
and the depth of analysis required will vary with the scope and nature of the
impact of the judicial determination on the child. In each case, the best
interests of the child principle must be applied in a manner responsive to
each childs particular age, capacity, needs and maturity:
Kanthasamy
, at para. 35.

[338]

The implementation of a return order under s. 40, cl. 3 could have a
deep and lasting impact on a child, particularly, but not only, where that
order is enforceable by police. In my view, before making such an order, the
court must determine that doing so is in the best interests of the child,
focussing, as called for by s. 24(2) of the
CLRA
, on the childs physical, emotional and psychological safety,
security and well-being and having regard to the list of factors in s. 24(3).
Other factors may be relevant in the circumstances, including the citizenship
and residency status of each child and each parent in all of the relevant
countries.

[339]

To repeat, the best interests of the child analysis conducted under
s. 40, cl. 3 need not mirror the analysis required to make a parenting
order.

F.

DISPOSITION

[340]

I would allow the appeal. I would set aside the order of the trial
judge and order that the Ontario Superior Court has jurisdiction to make a
parenting order in relation to the children, Z. and E. Both parents would have
the right to fully participate in that determination, which would be made by a
judge other than the trial judge.

[341]

Pending that determination, I would continue the relevant parts of
the August 12, 2020 interim order of Chozik J. prohibiting: Mother from removing
Z. and E. from Ontario with the childrens passports remaining with Mothers
counsel, pending further order of the court or the agreement of both parties. I
would further order that Mother have interim custody of Z. and E. and be
permitted to remain with them in Ontario pending the determination of the
court, and that Father have generous access in that time, including by voice
calls, video calls, or personal visits. If Mother and Father cannot agree on
terms of access, I would direct them to apply to the Superior Court for interim
relief.

Released: September 14, 2021 P.L.

P. Lauwers
J.A.

[1]
In the present case, the father, in his Application, claimed
custody of the children under the
CLRA
. However, his Reply clarified
that the primary relief he sought was (i) a declaration that the appellant had
wrongfully removed the children from their habitual residence in Dubai and was
wrongfully retaining them in Ontario and (ii) an order that the mother return
the children to Dubai to the care and control of the father. If the mother did
not comply with the return order, then the father sought an order that the
children temporarily be in his care and control for the limited purpose of
travelling with him to Dubai. On her part, the mother, in her Fresh as Amended
Answer, sought a temporary and final order for sole custody of the children
under the
CLRA
.

[2]
In
Ojeikere
, there was disagreement between the majority and
concurring reasons about the precise content of serious harm. In that case,
the majority saw the relevant factors guiding the serious harm inquiry in the
particular circumstances as: the risk of physical harm; the risk of
psychological harm; the views of the children; and the retaining parents claim
that she or he would not return to the country from which the children were
taken if the children were required to return there:
Ojeikere
, at paras.
63-64. The concurring reasons warned against reducing the notion of serious
psychological harm caused by a return to mere disappointment of having to
return to another country: at para. 101.

[3]
See, for example, the discussion of the relationship between the
Charter
and custody orders in
Young v. Young
, [1993] 4 S.C.R. 3, per McLachlin
J., at p. 120, and per Sopinka J., at p. 107.

[4]
The
fathers with prejudice settlement offer is described at para. 16 above in
the reasons of Hourigan J.A.

[5]
Though the decision below was made under the previous version of
the
CLRA
,
I refer throughout to the current provisions of the
CLRA
,
which came into effect on March 1, 2021. The substance of the relevant
provisions is the same in the previous and current versions. As of March 1,
2021, the language of orders for custody and access was replaced with the
language of parenting orders involving decision-making responsibility and
parenting time.

[6]
The Hague Convention is formally known as
the
Convention on the Civil Aspects of International Child Abduction
, 25
October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983).

[7]
Reasons, at paras. 341 and 354.

[8]
Reasons, at para.
352.

[9]
Reasons, at para.
355.

[10]
Reasons, at para.
362.

[11]
Reasons, at para.
388.

[12]
Reasons, at para.
293.

[13]
Reasons, at para.
366.

[14]

The trial judges reasons in this case extended over 179
pages and 482 paragraphs. Large chunks of the text consisted of lengthy
verbatim recitations of evidence, arguments, and case law. This is a form of
unacceptable data dump criticized by this court in
Welton v. United Lands
Corporation Limited
, 2020 ONCA 322, at paras. 61-63. As I noted there, a
blizzard of words can obscure. That happened here too.

[15]
Reasons, at para. 366.

[16]
Reasons, at para.
291.

[17]
Reasons, at para.
380.

[18]
Reasons, at para.
291.

[19]
Reasons, at para.
308.

[20]
Reasons, at para.
312.

[21]

Reasons, at para. 313.

[22]

Reasons, at para. 314.

[23]
Reasons, at para.
294.

[24]
Reasons, at para.
294.

[25]
Reasons, at para. 194.

[26]
Reasons, at para.
194.

[27]

Appeal Book and Compendium, at p. 719.

[28]
Reasons, at para.
51.

[29]

Appeal Book and Compendium, at p. 443.

[30]

Appeal Book and Compendium, at p. 455.

[31]
Reasons, at para.
49.

[32]

Appeal Book and Compendium, at p. 441ff.

[33]
Reasons, at para.
293.

[34]
Reasons, at para.
19.

[35]
Reasons, at p
. 77.

[36]
Reasons, at para. 294.

[37]
Reasons, at para.
366.

[38]
Reasons, at para.
255.

[39]
Reasons, at para.
294.

[40]
Reasons, at para.
303

[41]
Reasons, at para.
417.

[42]
Reasons, at para.
214.

[43]
Reasons, at p.
67.

[44]
Reasons, at
pp. 68-69.

[45]
Reasons, at para.
304.

[46]
Reasons, at para
. 185 (Ms. Hamade) and para. 207 (Ms.
Schildgen).

[47]

Appeal Book and Compendium, at p. 731 (Ms. Hamades Report)
and Reasons, at para. 207 (Ms. Schildgen).

[48]

Reasons, at para. 185.

[49]

Reasons, at para. 185.

[50]

Reasons, at para. 187.

[51]

Reasons, at pp. 70-71.

[52]

Reasons, at p. 71.

[53]

Reasons, at p. 72.

[54]

Reasons, at para. 216.

[55]

Reasons, at para. 185.

[56]

Reasons, at para. 207.

[57]

Reasons, at para. 207.

[58]

Reasons, at para. 189 (Ms. Hamade) and para. 207 (Ms.
Schildgen).

[59]

Reasons, at para. 378.

[60]

Appeal Book and Compendium, at p. 736.

[61]

Appeal Book and Compendium, at p. 738.

[62]

Appeal Book and Compendium, at p. 754.

[63]
Reasons, at
paras. 382-386.

[64]
Reasons, at
para. 432.

[65]
Reasons, at p
ara. 447.

[66]
Reasons, at
para. 448.