A case set for hearing next month by the Supreme Court of Canada could have a significant impact on how the concept of a child’s best interests – the dominant factor in family law disputes involving children in Canada – is analyzed in the context of international parenting disputes.
While the case originated in Ontario, a decision from the Supreme Court is binding on all jurisdictions across the country. As a result, the impact of the decision could dictate how international custody disputes are dealt with in Canada, particularly when it comes to countries that are not signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
In the case at hand, the parents were both born in Pakistan. The appellant mother moved to Canada with her parents in 2005, when she was 15 years old. She is a Canadian citizen. The father, also born in Pakistan, remains a Pakistan citizen but has lived and worked in Dubai since 2008.
The parties were married in 2012 in Pakistan. The mother then moved to Dubai to live with the father where they lived for the duration of their eight-year marriage. The mother’s residency in Dubai was contingent upon her marriage to the father. Under United Arab Emeritus law, once divorced, she would have a one-year grace period to remain in Dubai without an independent residency permit. To be granted a permit, the mother would be required to purchase a home in Dubai.
The parties have two children. Their daughter was born in Ontario, Canada, and their son was born in Dubai. Both children are Canadian citizens.
Throughout the marriage, the mother visited Ontario every year. In June 2020, the mother travelled with the children to Ontario, with the father’s consent, to visit her parents for one month. Partway through her trip, she called the father to inform him she would not be returning to Dubai. In September of that year, the mother cancelled the daughter’s enrollment at school in Dubai and enrolled her at a school in Ontario.
The father commenced proceedings in Ontario seeking an order to return the children to Dubai.
Before the initial trial, the father made a settlement offer to the mother, which included the following terms:
Increased globalization has led to families having ties to multiple countries, often through family connections or business interests. For this reason, it is increasingly common for parenting disputes to cross not only provincial boundaries, but international borders as well. When it comes to determining custody issues internationally, the process can vary significantly depending on whether the other country involved is a signatory to the Hague Convention. If it is, there is a process in place which governs the timing and requirements of bringing and deciding an application to determine where and with whom a child should reside.
When the other country involved is not a signatory to the Hague Convention, as is the case here, the process of determining jurisdiction becomes murkier. Some Canadian provinces have legislation that specifically outlines the circumstances under which a court in that province may assume jurisdiction in a parenting dispute. However, Alberta is not one of those provinces. When jurisdiction becomes an issue, various common law principles apply.
To determine if Alberta can exercise jurisdiction over a matter, the court must be satisfied that the province has a “real and substantial connection” to the matter at hand, or the parties involved. In considering whether there is such a connection in a case involving a child, a court may look at factors including, but not limited to:
In addition to the real and substantial connection test, the court must also consider the best interests of any minor children involved. In this case, the mother argued that a court in Dubai would not prioritize the best interests of her children the way a court in Canada would. However, one of the expert witnesses, an expert in family law in Dubai, testified that a child’s best interests are paramount in any court’s analysis of a family law dispute. The trial judge was satisfied this was the case, and the Court of Appeal found no legal error. However, Justice Lauwers, in his dissent, disagreed.
Justice Lauwers argued that no evidence had been presented at trial to demonstrate that “the best interests of the child are taken into account in any kind of “first instance” decision on parenting arrangements” by courts in the United Arab Emeritus. Instead, experts had testified that the common practice upon divorce was to automatically grant parenting time, or custody, to the mother, while granting guardianship, or decision-making ability, to the father. This arrangement would generally remain in effect until the children reach a certain age (11 for boys, 13 for girls), at which point the mother could risk losing custody if a court were to determine it was in the child’s best interests. In contrast, Ontario, and courts across Canada, promote equal entitlement to both parenting time and decision-making ability for both parents, regardless of gender.
Further, Justice Lauwers argued that it would not be in the children’s best interests to lose contact with their mother if they were returned to Dubai without her. In addition, though the father had proposed purchasing a home for the mother and securing her a residency permit, this would all be contingent on the father following through, and his ability to secure the permit. If he was unwilling or unable to fulfill this promise, the mother could potentially be forced to return to Canada without her children, which would not be in the children’s best interests.
Based on the arguments put forth in Justice Lauwers’ dissent, the mother was granted leave to appeal the case to the Supreme Court of Canada. The decision could potentially impact how the best interests of a child should be contemplated across Canada in matters involving international parenting disputes and questions of jurisdiction. The Supreme Court will have to carefully balance the prioritization of a child’s best interests with international child abduction laws to ensure policies do not inadvertently favour abductors. We will be watching this case closely to see how the SCC’s decision plays out.
Timing is key when considering a Hague application for the return of an abducted child from a foreign jurisdiction, or any other high-conflict international custody matter. At Mincher Koeman, we act with urgency to help clients navigate the complex international processes involved. Our dedicated family lawyers provide empathetic and skilled guidance throughout the process and seek a quick and effective resolution for both parent and child. If you are facing a matter that may necessitate a Hague application, contact our offices for a consultation by calling us at 403-910-3000 or by contacting us online.
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