Read This Before You Decide to Abduct Your Own Child to Another Jurisdiction
Any abducted child flat out must be returned to their home jurisdiction. One exception to this rule is if there is a significant risk that the child will be harmed if returned. This is true if the country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and may also hold if a country is not a signatory, which is what happened in the case described below.
The 2022 ruling by the Supreme Court of Canada, F. v. N. 2022 SCC 51 dealt with the “serious risk” exception.
F. v. N. was a “close shave” as far as court cases go. The Ontario trial judge found there was no risk of harm if the children were returned to their home jurisdiction (UAE). The mother appealed to the Ontario Court of Appeal, where one of the three justices disagreed with the trial judge.
The mother appealed to the Supreme Court of Canada where four of the nine justices disagreed with the trial judge. Where the justices of an appeal court are divided in their decision, the majority decision is the ruling. The decision of justices who disagree with the majority is the dissent. This case divided two levels of appeal courts, indicating that the facts of the case gave rise to strong arguments on both sides of the issue.
The facts of F. v. N. illustrate the tension between the firm rule that abducted children must be returned and the abductor’s claim there is a serious risk if the children are returned. The parents had lived in Dubai for several years though neither was a citizen of the UAE. They had two children while living in Dubai. The father worked in Dubai and sponsored the residency of the mother and children.
In 2020, when the children were 4 and 1, the mother (a Canadian), took them to Ontario for a “visit” and then told the father she was not returning to UAE. The father brought a court action in Ontario for an order that the children are returned to UAE.
At the trial in Ontario, the mother said the serious risk of harm to the children was that she would not return to Dubai and to deprive the children of their primary caregiver would cause them harm. She said she would not go back because of the conditions of living as a woman in the UAE, including the treatment of women in family court.
Meanwhile, the father commenced divorce proceedings in the UAE and obtained a divorce. Under UAE law, a divorced non-national can remain in the country without a residency permit for one year. The year had expired by the time the SCC heard the mother’s appeal.
In a written settlement proposal, the father promised that if the mother returned to Dubai, he would purchase a property in her name where she could live independently, and which would secure her residency, and he promised a joint-custody arrangement.
The trial judge said the mother “was not a credible witness”, meaning there were flaws in her testimony and he did not believe her. He found that both parents were good parents. He accepted that the mother had always been the primary caregiver, but he emphasized that the family nanny had helped substantially.
The evidence of both parties’ experts was that the “best interests of the child” would be paramount in determining custody in Dubai. The trial judge ruled that there was no risk of serious harm to the children if they were returned to Dubai “with or without” their mother.
The dissenting justices in both appeal courts agreed that an abducted child should be returned, but in this case, the mother’s refusal to return to Dubai with the children would result in serious harm to the children due to them being deprived of their primary caregiver. The dissenting justices said the mother’s refusal to return to Dubai was justified due to the unacceptable nature of her life and prospects there.
The SCC dissent said, “A child’s loss of contact with a primary caregiver who cannot return to the home jurisdiction, for reasons beyond their control, can be the source of serious harm.” The dissenting justices said that the separation of young children from their primary caregiver will not always result in a finding of serious harm, because such a broad principle could encourage child abductions of young children.
The dissenting justices in the SCC also took issue with the trial judge’s conclusion that the mother was not believable. They said the trial judge had not specifically disbelieved the relevant evidence of the mother, namely, that she would not return to Dubai. Instead, the trial judge relied on “largely irrelevant inconsistencies in her evidence about, for example, whether the nanny Mary helped “a lot” with the children; whether the father’s pornography consumption involved girls ages 14 to 16 or rather ages 16 to 19; and whether the mother was resident in Milton, Ontario, since 2005.” The dissenting justices said: “The trial judge’s conclusion regarding serious harm turned on his flawed credibility determination.”
This case points out the risk of trying to establish there is a serious risk of harm to your children if they are sent back to their home jurisdiction. But it also painfully illustrates the risk of going to trial and not being believed.