Case comment: Relocation to the United Arab Emirates
The mother and father lived in Dubai in the United Arab Emirates (“UAE”) for nearly a decade with their two children, who are under the age of 5. Neither parent is a citizen of the UAE but the father has a residency permit which allowed him to sponsor the mother and their children. The mother has no independent right to reside in the UAE on her own. Her status in Dubai meant that when her husband sought a divorce she was given a one-year grace period to secure a residency permit on her own, or she would be forced to leave the UAE, likely without her children.
In June 2020, the mother travelled to Ontario with her children, leaving Dubai to visit her family. The father agreed to the trip however, a few weeks later, the mother informed the father that she intended to stay in Ontario with the children and not return to Dubai. The father initiated proceedings in Ontario, seeking an order under s. 40 of the Children’s Law Reform Act (“CLRA”) for the return of the children to Dubai. The mother, relying on s. 23 of the CLRA said that the Ontario court should exercise its jurisdiction to decide decision-making authority and parenting time as the children would suffer serious harm if they were returned to Dubai. She claimed that it was in the children’s best interests to remain in Ontario with her.
Before hearing the father’s application, he presented a settlement offer to the mother where he undertook to the mother to ensure her independent residency in Dubai by purchasing a property for her in her name. He further undertook that the children would reside primarily with the mother and that major decisions regarding the children would be made jointly.
The trial judge declined jurisdiction indicating that the children would not suffer serious harm if they were removed from Ontario. A majority of the Court of Appeal confirmed the return order, but one of the judges felt that the trial judge was wrong in his assessment of serious harm and that Ontario courts should have exercised jurisdiction.
Courts in Ontario have a tendency to not get involved in disputes amongst parents on cases involving children who do not habitually reside in the province. They often prefer to have the case be dealt with in the jurisdiction of the children’s habitual residence. The exception is in situations where a person can show that the children could be exposed to serious harm.
While the majority of the judges affirmed the best interests of the child principle as paramount to any decision involving children, the fundamental issue in this case was which court (Ontario or UAE) should decide on decision-making authority of the children.
In thinking through their decision, the majority of the judges addressed the issue of the children separating from their primary caregiver, their mother. While separation from their mother could cause serious harm to the children, their perspective was that the harm experienced by the children did not rise to the level of “serious” as set out in s. 23 of the CLRA.
The court also considered the children’s age, special needs and vulnerabilities, the environment to which they would be returned, their relationship with each parent, and “protective measures” the father made to the mother to alleviate obstacles for a future reunion. The majority, also factored in the mother’s unwillingness to return to UAE, upholding the trial judge’s finding that separation from the mother would not cause serious harm to the children.
The court also addressed that inconsistencies between laws in two countries usually don’t amount to serious harm so long as the principle of the best interests of the child remains the focus. In the UAE, the law assigns parental responsibilities based on gender, which means that mothers are granted “custody” of the children and are expected to ensure daily care, while fathers are granted “guardianship” and are responsible for important financial decisions and other major life decisions, including the children’s education and religion. A mother’s custodial right can also be terminated if she remarries, and when a male child turns 11 or when a female child turns 13. This is fundamentally different from Ontario law where both parents are entitled to decision-making responsibility of the children in accordance with their best interests.
Having addressed the question of serious harm, the majority note, that the father’s undertaking that the mother’s residency status should she return to Dubai would be included in the return order was in the children’s best interests.
The dissenting judges felt that the mother’s refusal to return to Dubai was based on legitimate concerns around her precarious residency status. They also rejected the majority’s view that the alternate caregivers proposed by the father would somehow mitigate the harm suffered by the children from being apart from their mother. The mother has always been the primary caregiver and the father has always been less involved with the children’s lives. They also raised the issue that the children could suffer from psychological harm from being separated from their mother.
Ultimately, the majority found that the trial judge made the right decision and that the proper jurisdiction to hear the matter was in Dubai. For mothers of children whose habitual residence is in another country, it is important to keep in mind that courts in Ontario prefer to have the case dealt with in the jurisdiction of the children’s habitual residence, unless serious harm would result. The fact that the mother had been the primary caregiver was not sufficient to find “serious harm” upon separation from the children.
