“The Mother is right to say that the lower courts were bound to apply the principle of the best interests of the child to the problem at hand and to do so from the child’s‑eye point of view. But she misconstrues, in my respectful view, how the Ontario legislature has directed courts to apply the best interests principle to the question of jurisdiction over children who are wrongfully retained in Ontario.
Section 19 sets the objectives for the law relating to decision‑making responsibility and parenting time in Part III of the CLRA, including applications for the return of wrongfully removed children to countries party to the Hague Convention (s. 46(2)) and non‑Hague Convention countries (s. 40). In addition to discouraging child abduction, the legislature seeks to ensure that the child’s best interests are paramount to the making of ultimate parenting orders and that parenting determinations be made in the place to which the child has the closest connection, barring exceptional circumstances.
The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests. The analysis of the jurisdictional questions contemplated in s. 40, including the risk of serious harm in s. 23, starts from this ordinary alignment of best interests and focuses on factors that would tend to establish, as an exception, serious harm if the child was returned. Contrary to the Mother’s position, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based best interests test as is conducted for a parenting order on the merits.
The approach advocated for by the Mother risks conflating decisions on jurisdiction with custody decisions on the merits and would encourage forum‑shopping in future cases. This would reduce these decisions, as Hourigan J.A. wrote in the Court of Appeal, “to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety” (2021 ONCA 614), 158 O.R. (3d) 481, at para. 79). Worse still, it would invite wrongful abductions to the province for the purpose of grounding jurisdiction there which, as Chamberland J.A. once wrote in a Quebec case, would encourage parents [translation] “to take the law into their own hands and go to another jurisdiction in the hope, whether conscious or not, that the courts there will be more receptive” (Droit de la famille — 3451, [1999] R.D.F. 641 (Que. C.A.), at p. 647, cited with approval in a non‑Hague Convention abduction case in Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849, at para. 46). While the trial judge did not find in this case that the Mother’s disinclination to return was itself the cause of serious harm, it bears recalling that, in both Hague and non‑Hague Convention settings, the courts recognize that a parent should not be allowed to create a situation that is potentially harmful to the child and then rely upon it to establish a risk of harm to the child (see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 91). Finally, the Mother’s characterization of UAE law as an inherent source of serious harm must be rejected. Expert evidence accepted by the trial judge led him to conclude that the best interests principle would apply to the ultimate custody decision before a UAE court. As Hourigan J.A. observed, “the rather provincial view that unless Ontario law is applied, children will suffer serious harm” could have the unwitting effect of turning Ontario into a haven for child abduction (para. 83; see also para. 136, per Brown J.A., concurring).
The trial judge was called upon to decide the fact‑specific, highly individualized question as to whether these two children would suffer serious harm if removed from Ontario. He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm. Based on expert evidence relating to the differences between Ontario and UAE law, the judge determined the best interests of the two children will be the paramount consideration for determining custody in a UAE court. In the absence of a reviewable error, his decision that the serious harm threshold was not met is entitled to deference, as explained by the majority of the Court of Appeal. The custody dispute — undecided here — should be resolved by the courts in the UAE, where the children have their closest connection.”