The Ontario Court of Appeal’s decision in N. v. F., 158 OR (3d) 481, addresses several crucial issues in international child custody cases. While the Supreme Court of Canada dismissed the appeal on December 2, 2022, the Court of Appeal’s analysis provides valuable guidance for family law practitioners in Ontario.
Summary of Facts
- Mother and Father married and lived in Dubai for 8 years
- Mother traveled with two young children (ages 4 and under 2) to visit family in Ontario for one month in June 2020 with Father’s consent
- Mother informed Father she was not returning to Dubai with the children
- Father applied for a return order under s. 40 of the Children’s Law Reform Act (“CLRA”)
- Mother asked the court to exercise jurisdiction under s. 23 of the CLRA and make custody/access orders in her favor
Legal Issues
- When does an Ontario Court have jurisdiction to make parenting orders in an international child custody dispute under ss. 22, 23, and 40 of the CLRA?
- What constitutes “serious harm” to a child to allow an Ontario court to take jurisdiction under s. 23 of the CLRA?
- How is the best interests of the child principle applied in the context of ss. 23 and 40 of the CLRA?
- When should a court exercise its discretion to order a child returned to another jurisdiction in wrongful retention cases under s. 40 of the CLRA?
Analysis and Findings
Jurisdiction under s. 22 CLRA
The majority of the Court of Appeal upheld the trial judge’s finding that Ontario did not have jurisdiction to make parenting orders under s. 22 of the CLRA. They agreed that the children were not habitually resident in Ontario, as they had lived in Dubai for their entire lives, apart from the one-month visit to Ontario. The dissenting judge concurred with this finding, emphasizing the importance of habitual residence in determining jurisdiction in international custody disputes.
This analysis highlights the critical role of establishing habitual residence when seeking to invoke the jurisdiction of Ontario courts in cross-border custody cases. Family law practitioners should be prepared to present evidence and arguments demonstrating a child’s habitual residence, as this factor can be determinative in the court’s assessment of jurisdiction.
Serious Harm Under s. 23 CLRA
The interpretation and application of the “serious harm” threshold under s. 23 of the CLRA was a central point of disagreement between the majority and the dissent opinions. The majority upheld the trial judge’s finding that there was no risk of serious harm to the children if they were returned to Dubai. They deferred to the trial judge’s assessment of the evidence and found no error in his conclusion.
In contrast, the dissenting judge found that the trial judge had erred in his analysis of serious harm. The dissent emphasized the potential harm to the young children if they were separated from their primary caregiver mother, given her precarious residency status in Dubai. The dissent found that this risk of separation met the serious harm threshold under s. 23, which would allow Ontario courts to exercise jurisdiction.
This divergence in opinion underscores the importance of thoroughly assessing and presenting evidence of potential harm when seeking to establish jurisdiction under s. 23 of the CLRA. Family law lawyers should be prepared to argue how the specific circumstances of their case meet the serious harm threshold, focusing on the potential impact on the child’s physical, emotional, and psychological well-being.
Best Interests of the Child
All the judges emphasized the fundamental role of the best interests of the child principle in applying the CLRA provisions. However, they differed in their assessment of whether the trial judge had adequately considered this principle in the context of the case.
The majority found no error in the trial judge’s best interests analysis, accepting his findings that the courts in Dubai would consider the best interests of the children in making custody determinations. They upheld the trial judge’s assessment that there was no risk of serious harm to the children if returned to Dubai.
The dissenting judge, however, found that the trial judge had erred in his best interests analysis by failing to properly consider the potential harm to the children if they were separated from their primary caregiver mother. The dissent emphasized the importance of a thorough and contextual assessment of the best interests of the child, taking into account factors such as the children’s ages, their relationship with each parent, and the potential impact of separation.
This disagreement highlights the need for family law practitioners to conduct a comprehensive best interests analysis when arguing cases under the CLRA. Lawyers should be prepared to present evidence and arguments that address the specific factors outlined in s. 24 of the CLRA, as well as any other relevant considerations that may impact the child’s well-being.
Return Order Under s. 40 CLRA
The majority of the Court of Appeal upheld the trial judge’s decision to issue a return order under s. 40 of the CLRA, directing that the children be returned to Dubai. They found no error in the trial judge’s exercise of discretion, given his findings that the children were wrongfully retained in Ontario and that there was no risk of serious harm if returned to Dubai.
The dissenting judge, however, found that the trial judge had erred in ordering the children’s return without conducting a proper best interests analysis. The dissent emphasized the discretionary nature of return orders under s. 40 and the importance of considering the best interests of the child in exercising this discretion.
This analysis underscores the need for family law practitioners to be aware of the factors courts consider when deciding whether to issue a return order under s. 40 of the CLRA. Lawyers should be prepared to present arguments addressing the child’s best interests, the potential impact of a return order, and any other relevant considerations that may influence the court’s exercise of discretion.
Key Practice Takeaways
- Establishing habitual residence is crucial for determining jurisdiction under s. 22 of the CLRA. Present evidence and arguments demonstrating the child’s habitual residence.
- When seeking to establish jurisdiction under s. 23 of the CLRA, thoroughly assess and present evidence of potential harm, focusing on factors such as risk of physical or psychological harm, the child’s views, and the impact of separating the child from their primary caregiver.
- Conduct a comprehensive best interests analysis under s. 24 of the CLRA, addressing the specific factors outlined in the legislation and any other relevant considerations impacting the child’s well-being.
- Be aware of the discretionary nature of return orders under s. 40 of the CLRA and the factors courts consider, such as the child’s best interests, the potential impact of a return order, and the purposes of the CLRA.
Conclusion
The Court of Appeal’s decision in N. v. F. offers valuable guidance for family law practitioners navigating the complexities of international child custody disputes. By understanding the key issues and factors addressed in this case, lawyers will be better equipped to advise clients and advocate for the best interests of children caught in cross-border custody battles.
The specific outcome of N. v. F. was effectively upheld by the Supreme Court of Canada by refusing to hear an appeal. Accordingly, the Court of Appeal’s analysis remains instructive for future cases involving the interpretation and application of the CLRA in international custody disputes. Family law practitioners should stay attuned to developments in this area of law and be prepared to adapt their strategies accordingly to best serve their clients and protect the well-being of children involved in these challenging cases.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Specialized Family Law Practice: Cheryl brings a wealth of experience spanning nearly 40 years dedicated exclusively to family law.
- Masters Degree in Counselling: Her Masters Degree in Counselling informs her uniquely empathetic approach to each case.
- Certified Family Law Specialist: The Law Society of Ontario has certified Cheryl as a Family Law Specialist, recognizing her expertise in the area.
- Accreditation as a Mediator by the OAFM: Cheryl’s expertise is reflected in her accreditation from the Ontario Association for Family Mediation.
- Designated ADR Professional by Ontario’s ADR Institute: As a highly respected arbitrator, Cheryl’s designation reflects her recognized expertise in family law arbitration.
- Recipient of Numerous Awards and Honors: Among Cheryl’s many awards, honours and accolades is the prestigious Award for Excellence in Family Law from the Ontario Bar Association.
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