SCC to Decide on the “Best Interests of the Child” in International Parenting Orders in F v N
The Supreme Court (“SCC”) will hear F v N SCC 39875 [“F v N”] in March 2022. In this decision, the SCC will address the proper application and interpretation of ss. 23 and 40 of the Children’s Law Reform Act, RSO 1990 c C 12 (“the CLRA”) as well as the“best interests of the child” principle.
s. 23 of the CLRA engages with the idea of “serious harm to the child”. The provision empowers Ontario courts to exercise their jurisdiction to make or vary a parenting order so long as the child is present in the province, if the court believes that the child will suffer “serious harm” if they remain with their guardian, or are removed from Ontario. Considering the “best interests of the child” is central to Ontario courts making a parenting order. This includes making an assessment of the child’s physical, emotional and psychological well-being.
s. 40 of the CLRA deals with interim powers of Ontario courts. If the court is satisfied that a child has been wrongfully removed or retained in the province, they can make parenting orders that consider the “best interests of the child.” This decision can include ordering a party to return the child to a place that the court considers appropriate.
In N v F, 2021 ONCA 614 [“N v F”], the Ontario Court of Appeal (“ONCA”) decision hinged on the proper interpretation and application of ss. 23 and 40 of the CLRA. Justice Lauwers wrote the dissent, arguing that the trial judge’s application of the relevant sections contained legal errors and warranted reversal.
The parties raised numerous issues in N v F, many of which were settled at the ONCA. However, the SCC has granted leave to consider the issues addressed by Justice Lauwers’s dissent. The SCC is expected to address how lower courts should approach parenting and custody decisions when children have been wrongfully brought into the province. The upcoming decision will also provide crucial guidance on the proper application of the “best interests of the child” principle.
The mother (“the Appellant”) and father (“the Respondent”) lived in Dubai, the United Arab Emirates (“UAE”) for nearly a decade and have two children under the age of five (N v F, para 2). Neither parent is a citizen of the UAE, but the Respondent has a residency permit, which allowed him to sponsor the Appellant and their children. The Appellant has no independent right to reside in the UAE on her own. Her tenuous status in Dubai meant that when the Respondent sought a divorce, the Appellant was given a one-year grace period to secure a residency permit of her own, or she would be forced to leave the UAE, likely without her children (N v F, para 259).
In 2020, with the Respondent’s permission, the Appellant took the children to Ontario to visit her parents. She spent two weeks in Canada, after which she informed the Respondent that she would not be returning to Dubai with their children (N v F, para 2). The Respondent immediately took legal action and the matter proceeded to the Ontario Superior Court. The Respondent sought an order under s. 40 of the CLRA, to which the Appellant responded by asking the court to exercise its jurisdiction under s. 23 of the CLRA (N v F, para 15).
Prior to the trial, the Respondent presented a settlement offer to the Appellant, which could be enforced if the children were returned to the UAE under s. 40. The terms of the settlement included that the Respondent would purchase a home in Dubai in the Appellant’s name and that the Respondent would obtain a residency visa for the Appellant (N v F, para 16). It also stated that the Appellant’s future home in Dubai would be the primary residence for the children and “major decisions would be decided jointly” (N v F, para 16). This settlement offer was disclosed to the trial judge.
At the Superior Court, the trial judge ruled in favour of the Respondent and ordered the children to return to the UAE, pursuant to s. 40 (N v F, para 22). In his reasons, the judge found that Dubai courts placed similar weight on the “best interests of the child” as Ontario courts when determining parenting orders (N v F, para 4). As a result, the trial judge concluded that the children would not suffer serious harm if they returned to Dubai without their mother and, therefore, an Ontario court’s intervention under s. 23 of the CLRA was not necessary (N v F, para 4).
The ONCA Decision
The ONCA upheld the trial judge’s decision and ordered the children returned to the Respondent in Dubai per s. 40 of the CLRA. Writing for the majority, Justice Hourigan held that the trial judge was correct in finding that the children were not at risk of serious harm and that evoking s. 23 of the CLRA was therefore unnecessary. While the judge considered evidence that suggested that the children may be at risk of emotional and psychological harm if separated from their mother, there was no reliable evidence to suggest that courts in Dubai would do “anything other than determine custody in accordance with the best interests of the children” (N v F, para 53).
The ONCA also found that the trial judge appropriately considered the Appellant’s uncertain residency status in the UAE (N v F, para 59). As the majority outlined, the trial judge was aware of the Appellant’s residency situation and accepted evidence from an expert witness that “workable solutions” existed to resolve the issue (N v F, para 63), such as sponsorship through her ex-husband or the purchase of a property in Dubai, as contemplated in the settlement offer (N v F, para 59).
The ONCA majority did not accept the Appellant’s submission that the Respondent’s settlement offer was disadvantageous to her because she would be subject to UAE law (N v F, para 65). The trial judge had found that the Appellant’s concerns were inconsistent with the expert testimonies presented at trial. These testimonies explained that settlement offers like the Respondent’s could be built into binding court orders in the UAE and any dispute about changing terms would be “resolved on the basis of the children’s best interests” (N v F, para 66). Furthermore, Justice Hourigan emphasized that the scope of a s. 23 analysis was only to consider if the application of UAE law would result in serious harm to the children (N v F, para 82). He therefore dismissed the Appellant’s submission that she would have less authority in making big decisions for the children under UAE law.
Justice Lauwers’s Dissent
Justice Lauwers, penning a brief but compelling dissent, would have allowed the appeal. He found that the trial judge made legal errors in his interpretation and application of ss. 23 and 40 of the CLRA (N v F, para 252).
Per Justice Lauwers, the trial judge overlooked the Appellant’s precarious status in the UAE, her treatment as a woman undergoing a divorce process in Dubai, and the effects this would have on her children (N v F, para 253). While the Respondent proposed several ways to secure a residency visa for the Appellant, Justice Lauwers described them as “unacceptably contingent” (N v F, para 253). For example, in the proposed settlement offer, the Respondent undertook to purchase a property in the Appellant’s name, to be held in trust for the children. However, he did not provide evidence that established his financial ability to do so (N v F, para 293). Justice Lauwers emphasized the risks of having the Appellant rely on the Respondent’s goodwill and the detrimental effects this could have on the children. The trial judge failed to consider whether the Respondent’s commitment to secure the Appellant’s residency status would be enforceable in Dubai and provided no recourse to the Appellant should the Respondent renege on his settlement offer (N v F, para 295).
In the absence of a binding settlement agreement, Justice Lauwers reasoned that a parenting determination under UAE law would not be made in the “best interests of the children,” as contemplated by Ontario law (N v F, para 305). Neither expert on UAE law provided evidence at the trial to suggest that the best interests of the child are considered in any “first instance” decision of parenting arrangements in the UAE (N v F, para 310). Instead, both experts explained that in the UAE, “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” (N v F, para 311). Justice Lauwers asserted that “equal entitlement of parents to decision-making responsibility is one very significant way in which Ontario legislation puts the best interests of children first” (N v F, para 317). Put differently, a system that automatically grants decision-making authority to a father deprives the court of an opportunity to grant decision-making responsibility to the parent who will “best promote the children’s best interests” (N v F, para 317).
Lastly, Justice Lauwers took issue with the trial judge’s failure to consider expert evidence on the impact that the Appellant’s absence would have on her children, should they be returned to Dubai without her (N v F, para 255). In concluding that the impact on the children was “unknown,” the trial judge failed to perform a critical assessment of the risk of harm the children would face, which is central in making determinations under ss. 23 and 40 of the CLRA. Justice Lauwers reasoned that the trial judge could have found a risk of serious harm, even without expert evidence, because the emotional bonding that occurs between a child and their primary caregiver is “well recognized” (N v F, para 288).
The upcoming SCC decision will allow the bench to refine its jurisprudence on the purportedly paramount consideration of the “best interests of the child” and how they should be weighed against equally important jurisdictional, procedural and policy-based concerns.
The SCC will need to consider the extent to which provincial justice systems can safeguard a child’s best interests, as compared against foreign jurisdictions. In N v F, the majority seems to suggest that an analysis of “best interests” precludes this comparison. Per Justice Hourigan, it “is not a place in which Ontario’s justice system should be preferred against those of a foreign jurisdiction ‘under the guise of child safety’” (N v F, para 79). However, Justice Lauwers shines a spotlight on how differences in international justice systems are inherently baked into a successful s. 23 analysis. For example, Justice Lauwers explained how UAE law would strip the Appellant of the ability to make big-picture decisions for her children—a right automatically afforded to the Respondent under UAE law. The SCC must inevitably determine how these crucial differences factor into an assessment of the “best interests of the child”.
The SCC also ought to consider how the “best interests” principle works alongside procedural concerns, such as who bears the evidentiary onus in a s. 23 analysis. Is this burden shared, or shouldered only by the party who wrongfully retained the children? The majority appears to insist it is the latter, as seen in Justice Hourigan’s statement that “it is on the appellant to prove serious harm” (F v N, para 63). However, Justice Lauwers challenged this assertion by stating that relying on the Respondent’s evidence was not an “unfounded” procedure (para 253).
Lastly, from a policy perspective, the SCC’s comments will hopefully further an important goal of advancing women’s rights in the context of international custody disputes. Justice Lauwers notably focused on the lack of power the Appellant has in this case, especially as it relates to her custody rights under UAE law and her status in the UAE being contingent on her former spouse. Notably, for the first time in the case’s procedural history, F v N will be heard before three women Justices at the SCC.