Supreme Court of Canada Addresses Risk of Serious Harm in Child Relocation Cases

written on behalf of Feigenbaum Law

One of the most distressing family law issues for parents who are divorced or separated is if one of the parents makes a unilateral decision to move to another country with the children. Fortunately, there are legal avenues to pursue in the event of such a situation. But even then, navigating the world of international family law can be an intimidating task, even for some family law lawyers. A recent decision from the Supreme Court of Canada sheds light on the process a parent must follow if they are involved in an international dispute about a child’s residency. As with any decision from the country’s highest court, lower courts will be expected to follow its lead.

Mother moved from UAE to Canada with children

The parents involved in the matter were married in Pakistan and have lived in Dubai in the United Arab Emirates (“UAE”) since 2012. The mother has Canadian citizenship and lived in Ontario from 2005 until the parties were married. She does not have any legal status in Dubai but lived there under a sponsorship from the father. The parties have two children, and the mother has been their primary caregiver since their birth.

The relationship came to an end when the mother travelled with the children to Ontario in 2020. She had purchased return tickets, and the father was aware of the trip. However, a few weeks into their visit, the mother told the father she intended to remain in Ontario with the children.

Father sought order returning children to Dubai

The father sought an order under section 40 of the Children’s Law Reform Act (CLRA) asking for a court order for the children to return to Dubai. Section 40 of the CLRA states that when a court has been satisfied that a child has been wrongfully moved from or retained in Ontario, it may make a parenting order that speaks to the best interests of the child. This may include ordering the return of the child to such a place the court considers appropriate.

The mother replied by seeking an order under section 23 of the Children’s Law Reform Act. That section of the CLRA allows an Ontario court to vary a parenting order if the child is physically present in Ontario and if the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if the child was to stay in Ontario (or in the reverse, not be moved to the location they were taken from).

The mother’s position was that the children would suffer serious harm if they were returned to Dubai. This was, of course, contrary to the father’s position that it was in their best interests to return there. Further, prior to the courts becoming involved, the father made a settlement offer to the mother. He told her he would ensure she gained independent residency in Dubai by purchasing property for her in her name. He also suggested that the children reside primarily with the mother.

Ontario courts declined jurisdiction over the dispute

At the initial hearing, the Court declined to accept jurisdiction over the dispute, stating that it did not believe the children would suffer serious harm if moved from Ontario. The Court declared the mother had wrongfully retained the children in Ontario and that it was in their best interests to return them to Dubai.

The mother appealed this but lost at the Ontario Court of Appeal, which confirmed the lower court’s order. However, one appeal judge dissented from the majority’s decision, stating that the trial judge had erred in his assessment of serious harm and that the Ontario courts could assume jurisdiction. This led to a further appeal before the Supreme Court of Canada.

Ontario only able to assume jurisdiction if child faces serious harm if returned to father

The Supreme Court began its analysis of the matter by stating that the goal of the Children’s Law Reform Act is to discourage the wrongful removal and retention of children. A child’s best interests are normally served by their prompt return to the jurisdiction of their habitual residence. In some situations, both of the jurisdictions involved may be members of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), which would allow an Ontario court to assume jurisdiction. However, when one of the jurisdictions, such as Dubai, is not a member, Ontario courts can only accept jurisdiction in exceptional circumstances, such as if the child would face serious harm if returned.

The Supreme Court explained that the abducting parent bears the onus of proving the child would suffer serious harm if returned to the other parent (in the original jurisdiction). The Court clarified that it is not enough to show that the child may be negatively impacted. Instead, the Court must be satisfied that the harm itself would be serious in nature. The Court admitted that being separated from a primary caregiver (in this case, the mother) could result in serious psychological harm but that this does not in and of itself rise to the level of harm required under the Children’s Law Reform Act.

Children’s distress at being away from mother not “risk of serious harm”

The Supreme Court of Canada concluded that in this case, the trial judge did not commit a palpable and overriding error when he determined the children would not suffer serious harm if returned to Dubai. The trial judge acknowledged the emotional distress it may have on the children if the mother remained in Canada but found that this distress did not amount to a risk of serious harm.

The Court also made note that the trial judge heard evidence about UAE courts and how they handle such situations and found that judges have discretion on the best interests of the child in the UAE as well. The mother presented no evidence to contradict this. Further, the trial judge also heard about the settlement offer from the father and found that it promoted the best interests of the children as well.

As a result, of their findings, the Supreme Court of Canada declined to take jurisdiction of the matter and stated that the father should be held to his settlement offer.

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Feigenbaum Consulting aims to help clients in family law disputes move forward following the breakdown of their relationship while retaining as much financial stability as possible. The firm’s founder, Mark Feigenbaum, counsels clients on their financial risks and obligations in their divorce and helps them choose the strategy that is best for their circumstances and families. Contact the firm online or call 905-695-1269 (or toll-free at 877-275-4792) to book a confidential consultation.