Elena Schildgen

The appellant mother travelled to Ontario from Dubai with her two children for a visit, but subsequently informed the respondent father that she would not return.

The father commenced proceedings in Ontario seeking a return order under s. 40 of the Children's Law Reform Act.

The trial judge declined jurisdiction under ss. 22 and 23 of the Act, ordered the children returned to Dubai, and dismissed the mother's constitutional challenges to s. 40(3).

The Court of Appeal dismissed the mother's appeal, finding no palpable and overriding error in the trial judge's assessment of the risk of serious harm under s. 23, and upholding the constitutionality of the return order provision under both division of powers and the Charter.

In a non-Hague international child retention case, the court held that Ontario lacked jurisdiction under ss. 22 and 23 of the Children’s Law Reform Act to determine custody and access respecting two Canadian children retained in Ontario after a temporary trip from Dubai.

The court found the children were habitually resident in Dubai, there was a pending Dubai proceeding, and the evidence did not establish serious harm if they were returned.

The court also rejected a constitutional challenge to s. 40(3) of the Act, holding that the return-order provision was intra vires Ontario and did not violate ss. 2(a), 6, 7, or 15 of the Charter.

A return order to Dubai was granted, together with ancillary enforcement and sealing-related relief.