F v N: ‘Best Interests of the Child’ in Parental Abduction cases
In F v N (2022 SCC 51), the Supreme Court of Canada (“SCC”) decided the question of whether or not Canadian courts have jurisdiction over custody issues involving children in situations of parental abduction. At issue were provisions of the Children’s Law Reform Act (“CLRA”) that sought to create a regime to address such concerns with the application of the ‘best interests of the child’ principle.
In this case, F, the mother, and N, the father, are parents to two young children. F and the children are Canadian citizens. The family habitually resided in Dubai, United Arab Emirates (“UAE”) (F v N, paras 16-20).
In June 2020, F travelled to Ontario with her children, with N’s consent. Once in Ontario, she informed N that she would be seeking a divorce, and would be choosing to remain in Ontario with the children. N subsequently initiated proceedings in Ontario under s. 40 of the CLRA, which deals with situations where a child has been wrongfully removed to or has been retained in Ontario, and where the country that the child is habitually resident in is not part of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) (CLRA, s. 40) (F v N, para 2).
Under s. 40, in such situations, the left-behind parent may apply for a return order. The determination of this order will depend on the ‘best interests of the child’ principle. There is a presumption 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” (F v N, para 9).
There are exceptions to this rule: it can be rebutted in cases where returning the child to the jurisdiction they were abducted from could lead to serious harm to the children (CLRA, s. 23) (F v N, para 66). This determination of the court is discretionary, and is based upon the factual context of each case (F v N, para 150).
N argued that because the children were retained in Ontario without his consent, Ontario courts did not have jurisdiction over this case, and that the custody dispute should be decided by a court in the UAE. He sought an order to return the children to Dubai under s. 40 of the CLRA. F stated that she would not return to Dubai, and sought to have the case decided on its merits in an Ontario court (F v N, para 2).
F argued that, as she was their primary caregiver, the children would suffer serious harm if they were forcibly separated from her (F v N, para 4). She was not willing to return to Dubai as her residency status there was entirely dependent on her marriage to N. Given the dissolution of her marriage, F no longer had any status in Dubai.
She also argued that they would suffer serious harm as, unlike Canadian law, UAE law applied a gendered understanding of parental roles when determining the best interests of the child. She argued that the gender inequality prevalent in UAE law meant that the custody of the children would not be determined on the basis of the ‘best interests of the child’ principle as it was understood in Canada (F v N, para 6).
N, meanwhile, argued that the children would suffer greater harm if they were removed from their habitual residence. He further offered a settlement which, he argued, would provide F with the ability to remain in Dubai, and also guaranteed that she would remain the primary residential parent, and that they would share joint decision-making authority. The settlement also proposed that these provisions would hold true even if she remarried (F v N, para 14). As a condition for her return, he undertook that he would purchase property in her name, which would allow her to independently maintain residency in Dubai (F v N, para 23).
At trial, the Ontario court ultimately declined jurisdiction because it concluded that the children would not suffer serious harm if they were returned to Dubai. F appealed; on appeal, the Ontario Court of Appeal (with a lone dissenting judgement) ruled in favour of the trial judgement, and confirmed the return order. F then sought leave to appeal to the SCC, which was granted.
Did the trial judge properly identify and apply the ‘best interests of the child’ principle to the relevant provisions of the CLRA (ss. 40 and 23)? (F v N, para 6).
The Majority’s Decision
The court split on this decision 5-4, with the majority ruling in favour of the trial court’s judgement and ordering that the return order be upheld. Upholding the procedure set forth under s. 40, and keeping the ‘best interests of the child’ principle in mind, the majority ruled that the facts in this situation did not amount to ‘serious harm’ for the purposes of s. 23 of the CLRA, and therefore did not pose a barrier to the children being returned to their habitual residence and for a UAE court to assume jurisdiction over this custody dispute.
The majority stated that the determination of whether ‘serious harm’ existed was 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” – that would risk the conflation of jurisdiction issues with substantive decisions on the merits, and encourage parties to engage in forum shopping (F v N, paras 9-10). It emphasized that Ontario could not become a haven for child abduction – allowing parents to flee here with their children and then determine their custody issues according to Ontario law would, the majority said, defeat this objective (F v N, para 10).
They highlighted that N had gone to great lengths to ensure that F would be granted legal residence in Dubai, and had proposed an equitable settlement of their custody issues. If the parties reached a settlement, that settlement could be incorporated into any future court order in Dubai, and would be enforceable (F v N, para 29). Further, they also noted that Dubai also followed the ‘best interests of the child’ principle, although the practical application of this principle differed from Ontario. The majority noted that both the Hague Convention and the CLRA permits situations in which the country of habitual residence has a different understanding of the term, and that one culture could not be automatically preferred (F v N, paras 85-86).
The majority noted that the CLRA presumed that, following an abduction, the child’s best interests lay in a prompt return to the jurisdiction of their habitual residence unless “there are exceptional circumstances that justify Ontario courts taking up jurisdiction” (F v N, para 63). This principle was deemed to be sound, as child abductions have been proven to harm children (F v N, para 64). When considering s. 23, the majority stated that judges should consider both the severity and likelihood of the anticipated harm, and that “it should focus on the particular circumstances of the child rather than on a general assessment of the society to which they are sent back” (F v N, paras 71-72).
Applying these principles to this case, the majority held that the facts in this case did not amount to severe harm. The simple fact of separation from the primary caregiver was not sufficient to reach this threshold, especially when the children had other support systems, such as a nanny, in their habitual residence. Further, after N’s proposed settlement, there was no technical legal impediment to F returning to Dubai. The court stated that an unreasonable refusal to return couldn’t be said to be in the children’s best interests (F v N, para 83).
Therefore, the majority ultimately held that s. 23 of the CLRA is not applicable to this case, and upheld the trial judge’s return order under CLRA, s. 40.
The majority and the dissent were united in recognising that children were ordinarily to be returned to their habitual residence, save for instances where to do so might lead to serious harm. However, they diverged on whether serious harm existed in this case.
The dissent found that the trial judge had made a material error when assessing the likelihood and severity of severe harm (F v N, para 142). They stated that, despite having the technical ability to return to Dubai under the terms of the proposed settlement, F had legitimate reasons for choosing not to return to Dubai – the gendered application of the law, her family ties to Ontario, and her precarious legal position in Dubai. She had expressed serious concerns about living in Dubai giving the gendered application of the law, noting that she had required a ‘No Objection letter’ from N in order to do things for herself such as obtain a driver’s license (F v N, para 158). In their view, she had not “self-engineered her claim of serious harm” (F v N, para 144). The dissent thus found that “a parent’s refusal to return to the foreign country may be justified when the parent has reasonable and legitimate reasons for not returning… when a parent justifiably refuses to return, the principle against self-engineered harm does not apply”.
Further, the dissent found that the trial judge had underestimated the harm that could flow from the children losing their primary caregiver. With the exception of the nanny, the proposed alternate caregivers (N’s relatives) were not well-known to the children and could not come close to replacing the role of their primary caregiver (F v N, para 146). Given these facts at hand, the dissent held that F had met the burden of proving serious harm, and that they would allow the appeal (F v N, para 147).
In this case, the SCC was faced with a series of tricky balancing acts: firstly, how to ensure that the best interests of the children were met without turning Ontario into a haven for parental abduction; and secondly, how to effectively assess the ability of the juridical system of another country to meet the needs of the children without compromising the core “the best interests of the child” principle. The court was deeply divided in a 5-4 decision, underlining how difficult it can be to determine such issues.
The majority and the dissent agreed that parental abduction was harmful to children, but differed on how the best interests principle was to be applied. The majority placed greater importance on the principles enshrined in the Hague Convention, which emphasize that the application of the ‘best interests’ principle should not be taken to mean the primacy of a single cultural expression of the term. In doing so, however, the majority in effect undermined the crux of F’s argument. F stated that she was uncomfortable returning to Dubai not because of physical impediments to her residence there (which were largely resolved by the settlement proposed by N), but because of her precarious legal position as a woman under the UAE’s gendered laws. She noted that she had required permission from N in order to carry out personal tasks such as obtaining a driver’s license. F is also a citizen of Canada, and had strong family and personal ties to Ontario. The principle of a parent being unwilling to return to a jurisdiction cannot be simply restricted to whether they have the technical ability to return, but should be expanded to include whether they have valid and reasonable reasons to remain in their current jurisdiction. The dissent emphasized this viewpoint, noting that the trial judge had been unfairly dismissive of F’s concerns, and had focused more on perceived discrepancies in her testimony than on whether she had a valid reason to remain.
The majority also appeared to take the same approach when assessing whether or not the children would be unfairly impacted by the absence of their primary caregiver. They failed to take into account that, save the presence of a nanny, the other caregivers were relatives with whom the children had had little contact. In effect, they appeared to be saying that the children would not be deprived of their primary caregiver, and therefore would not suffer, if F returned to Dubai. This placed her in an ultimatum-like situation in which her sole recourse was returning to a jurisdiction that she felt uncomfortable living in, or otherwise losing custody of her children.
This is a complicated case involving a series of interests, and both F and N had valid and reasonable concerns which were heard by the court. In seeking to perform this balancing act, and to respect the principle of best interests of the child while also ensuring that Ontario law did not effectively authorize child abduction, the majority perhaps treated F’s concerns a tad flippantly, and failed to consider the fact that they may have had validity beyond a simply desire not to return. Both sides were focused on the best interests of the children involved – but whether either achieved them remains debatable.