COURT OF APPEAL FOR ONTARIO

DATE: 20211005 DOCKET: M52824 (C68926)

Paciocco J.A. (Motion Judge)

BETWEEN

N. Respondent/Respondent on Motion

and

F. Appellant/Moving Party on Motion

Counsel: Fareen L. Jamal and Fadwa Yehia, for the appellant Bryan R.G. Smith and Lindsey Love-Forester, for the respondent

Heard: September 27, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1] F., the appellant mother (the “mother”), brings a motion pursuant to s. 65.1(1) of the Supreme Court Act, R.S.C., 1985, c. S-26, for a stay of proceedings relating to this court’s decision from September 14, 2021 in N. v. F., 2021 ONCA 614, pending her leave to appeal application to the Supreme Court of Canada. For the reasons that follow, I allow the motion and stay the proceedings, subject to the condition that the mother must file her application for leave to appeal to the Supreme Court of Canada within 45 days of the receipt of this court’s decision of September 14, 2021.

MATERIAL FACTS

[2] The mother is the primary caregiver of her children, Z., a female child born in November 2016, and E., a male child born in November 2019. In June 2020, she travelled with the children to Ontario from Dubai in the United Arab Emirates (“UAE”), their habitual place of residence. N., the children’s father (“the father”), remained in the UAE expecting their prompt return. In July, the mother notified the father that she and the children would not be returning to the UAE but would remain in Ontario.

[3] The father promptly brought an application in Ontario in which he sought the return of the children. Since the UAE is not a signatory, he could not bring that application under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, as implemented in Ontario in the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “Hague Convention” as implemented in the “CLRA”). Instead, he applied pursuant to s. 40 of the CLRA seeking a declaration that the mother wrongfully retained the children in Ontario, and an order that the children be returned forthwith to the UAE. In response, the mother argued that a parenting order should be made in Ontario pursuant to s. 22 or s. 23 of the CLRA, thereby requiring the father’s s. 40 application to be dismissed.

[4] The application judge concluded that he could not exercise jurisdiction under s. 22 of the CLRA as the mother had not established the she satisfied the requisite preconditions in s. 22. I need say no more about this determination.

[5] The application judge also declined to exercise jurisdiction under s. 23 of the CLRA because the mother had not satisfied him on the balance of probabilities that the children would suffer serious harm if they were removed from Ontario and returned to the UAE. Section 23 of the CLRA, of central relevance to this motion, provides in relevant part:

Despite sections 22 and 4, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(iii) the child is removed from Ontario.

[6] The mother’s primary submission in support of her claim that the children would suffer serious harm if removed from Ontario was that if the children were returned to the UAE they would involuntarily be separated from her, which is not in their best interests. She buttressed this submission by arguing that, in any event, even if she could return to and remain in the UAE, the UAE would not resolve the decision-making responsibility and parenting-time disputes at issue based on the best interests of the children. She maintained that Ontario should take jurisdiction of the matter.

[7] With respect to the risk of separation, the mother relied on the fact that her legal status in Dubai was contingent on her husband’s sponsorship, which can no longer be assured because of the breakdown of their marriage. She maintained that if the children were returned to the UAE, she would probably be unable to join or remain with them.

[8] The application judge rejected the probability of separation, accepting the testimony of the husband’s expert, Diana Hamade, that there were various options available to the mother to return to the UAE, including: a one-year grace period, sponsorship by her ex-husband, the purchase of property, or the use of a ‘free zone’ if she rented an office. Moreover, the application judge accepted evidence that any emotional and psychological harm that may result from the children’s separation from their mother as the primary caregiver could be mitigated with proper support.

[9] With respect to whether the courts in the UAE would resolve the decision-making responsibility and parenting-time disputes based on the best interests of the children, the mother argued that the UAE does not determine parental rights on this basis, and has gender-based inequalities in its legal rules that may preclude a consideration of the best interests of children. Like many other jurisdictions, the law in the UAE distinguishes between “guardianship” or decision-making authority, and “custody” or day-to-day care and physical custody of children. The mother argued that the UAE gives guardianship, i.e. decision-making responsibility, only to fathers; even if mothers receive primary parenting time with their children in their younger years, the law strips them of that entitlement and confers it on the fathers when male children turn 11 years of age, and female children turn 13 years of age. She argued that these rules are contrary to the best interests of the children.

[10] Once again, the application judge rejected these submissions. In doing so, he accepted testimony from Ms. Hamade that the UAE would determine the decision-making responsibility and parenting-time disputes by making the best interests of the children paramount, a conclusion the application judge found to have been supported by the mother’s own expert witness, Elena Schildgen, during her cross-examination.

[11] He also found, based on his evaluation of the expert evidence, that a court in the UAE would incorporate into an enforceable court order the terms of a parental rights settlement between the mother and the father. Specifically, he found that a court in the UAE would incorporate the terms of the specific settlement that the father proposed to the mother in a “with prejudice” offer that was placed before the court. That settlement offer, if accepted by the mother and incorporated in a court order, would provide for shared decision-making, primary residence of the children with the mother, and some parenting time with the father.

[12] In finding that the mother had not met her burden of establishing that the children would, on the balance of probabilities, suffer serious harm if returned to the UAE, the application judge also noted that there was no evidence that the children would be at risk of physical harm in the UAE. He noted, as well, the inability of expert witnesses to offer an opinion on whether the children would suffer serious harm if returned to the UAE.

[13] Having rejected the application of ss. 22 and 23 of the CLRA, the application judge exercised his discretion under s. 40 of the CLRA, granting a declaration that the mother had wrongfully retained the children in Ontario, and an order that the children be returned forthwith to the UAE. The mother responded promptly with an expedited appeal to this court.

[14] In the meantime, the father applied in the UAE for divorce and a guardianship and custody (decision-making responsibility and primary parenting time) order. The mother was served with notice of the UAE action but declined to participate. Prior to the release of this court’s appeal decision, a UAE court granted the divorce, and gave the father both guardianship and custody, finding that the mother had relinquished her custody by wrongfully depriving the father of the enjoyment of his rights.

[15] On September 14, 2021 this court’s decision was released. Hourigan J.A. and Brown J.A. (concurring) dismissed the appeal, upholding the application judge’s decision to decline jurisdiction under ss. 22 and 23 of the CLRA. They reasoned that the mother had demonstrated no errors of law or principle and had simply attempted to challenge the application judge’s findings of fact and mixed fact and law by rearguing the case. In dismissing the appeal, the majority concluded that deference is owed to the application judge’s findings. They also denied appeals from a battery of constitutional challenges the mother brought against s. 40 of the CLRA.

[16] Lauwers J.A. dissented. He did not address the constitutional challenges and concluded that the application judge’s s. 22 ruling was right. However, he found that the application judge erred in making an order pursuant to s. 40 of the CLRA when he should have found that Ontario has jurisdiction to make parenting orders pursuant to s. 23 of the CLRA. Specifically, he held that the application judge erred in his assessment of serious risk of harm by failing to assess the harm that could be caused by the forced involuntary separation of the mother from the children. In coming to this conclusion, Lauwers J.A. said at para. 281:

[This] risk of … harm emerges from the intersection of three different elements: the precariousness of [the mother’s] residential status in Dubai; the uncertain status of the proposed consent order on which the trial judge’s decision hinged, particularly if [the father] were to change his mind and not take out the consent order in Dubai or to later countermand it, and the unacceptable nature of the allocation of parenting responsibilities between [the father] and [the mother] if the situation reverted to UAE law.

[17] Lauwers J.A. also concluded that the application judge erred by accepting but not acting on expert evidence that brain development in infants is impacted when there is a loss of consistency that the primary caregiver provides. He said that the application judge made a palpable and overriding error, as well, in finding that the impact of separation on the children was unknown, when s. 23 specifically required him to determine the risk of harm on the evidence available to him. Lauwers J.A. said that no evidence is required to conclude that the indefinite separation of two young children from the parent who has always been their primary caregiver constitutes a risk of serious harm.

[18] Additionally, Lauwers J.A. concluded that the application judge erred in failing to consider fully whether the father’s undertaking would be enforceable in the UAE, and by not making findings about the mother’s recourse if the father rescinded his undertaking or later countermanded the consent order. Lauwers J.A. also concluded that the application judge failed to consider what would happen if the mother was forced to leave the UAE due to her precarious residency status, an important consideration given that she would be bound by the law of the UAE to live near the father of the children.

[19] He concluded, as well, that the application judge’s finding that the best interests of the children is the paramount consideration in making parenting orders is inconsistent with the undisputed expert evidence that all fathers are assured guardianship (decision-making responsibility) in the UAE, even where giving this responsibility to a particular mother would be in the children’s best interests.

THE LEGAL PRINCIPLES

A. Stays Prior to the filing of Leave Applications

[20] A judge of the appeal court, whose order is being appealed to the Supreme Court of Canada, is authorized by s. 65.1(1) of the Supreme Court Act, R.S.C., 1985, c. S-26, to order that the proceedings be stayed with respect to the judgment from which leave to appeal is sought, on the terms deemed appropriate. This authority may be exercised by a judge before the proposed appellant has served and filed a notice of leave to appeal “if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice”: Supreme Court Act, R.S.C., 1985, c. S-26, s. 65.1(2).

[21] The father does not contest the mother’s claim that she intends to apply for leave to appeal to the Supreme Court of Canada, and I am satisfied that she does intend to do so. I am also satisfied that a miscarriage of justice would result by delaying the application until such leave to appeal is filed by the mother.

[22] Neither the proposed application for leave to appeal, nor the request for a stay are frivolous or clearly without merit. If this court was to delay hearing the stay application until the leave to appeal application is completed and filed, the father would remain free to remove the children to the UAE before the merits of the stay could be determined. This would frustrate the stay order by giving full effect to the order that the mother seeks to be appealed. Even if the children were returned to Canada in response to a subsequent stay order, it would not be in the best interests of the children to have experienced the unnecessary instability in their care by temporarily being removed to the UAE. I will therefore consider the stay application on its merits, without delay, and prior to the leave to appeal application being filed.

B. The GENERAL legal test

[23] A consideration of whether a stay should be ordered in the interests of justice pending a determination of leave to appeal begins with consideration of the factors identified in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, namely: (1) based on a preliminary assessment of the merits of the case, whether there is a serious issue to be tried; (2) whether the applicant would suffer irreparable harm if the application is refused, and (3) which party would suffer greater harm from granting or refusing the stay pending a decision of the leave to appeal application, on its merits: J.P.B. v. C.B., 2016 ONCA 996, at para. 14. Of course, when determining whether a stay is in the interests of justice, the strength of one factor may compensate for weakness in another: J.P.B. v. C.B., at para. 15.

(1) Serious Issue to be Tried

[24] Ordinarily, a low threshold is to be applied when determining whether there is a serious issue to be tried. Indeed, it is enough to show that, on a preliminary assessment, the claim is not frivolous or vexatious: RJR-MacDonald Inc, at para. 44; 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, at para. 22.

[25] I accept that this low threshold is raised where the application is to stay pending leave to appeal to the Supreme Court of Canada, given that an appellate court has already ruled on the question: Leis v. Leis, 2011 MBCA 109, at para. 5. In my view, however, that raised threshold is tempered where, as here, there is a dissenting appellate decision.

[26] I also accept that it is relevant in determining the seriousness of an issue to be tried that an appeal is being brought from a discretionary decision: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 25. In considering this factor, however, it is important to bear in mind that deference is not owed if errors of law or principle have been made in the exercise of such discretion. Where this may be so, the discretionary nature of the decision under appeal is of lesser importance in evaluating the seriousness of the issue to be tried.

[27] Finally, and of most importance, given that the application is to stay the proceedings pending an application for leave to appeal to the Supreme Court of Canada, a motion judge must consider whether leave to appeal could realistically be granted. As described by Laskin J.A., in BTR Global, at para. 18:

Under s. 40(1) of the Supreme Court Act, R.S.C. 1985 c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of the stringent leave requirements in the Supreme Court Act.

[28] The mother argues that there are serious issues to be tried that do raise issues of public importance, including: (1) “the removal of children to non-Hague countries”, a broad issue that has never been considered by the Supreme Court of Canada; (2) the need to establish clear principles to be applied in determining serious risk of harm under ss. 23 and/or 40(3) of the CLRA, including whether the standard to be used when assessing the risk of serious harm under s. 23 is less stringent than the standard to be used in Hague Convention cases, and whether the rights of the children contained in the Convention on the Rights of the Child, 20 November 1989, Can. T.S. 1992 No. 3 (entered into force 2 September 1990) apply, and (3) the constitutional challenges to the return provision in s. 40(3) of the CLRA. In response, the father counters that this case raises only factual disputes particular to this litigation, and that the mother identifies no errors in the majority’s constitutional law analysis.

[29] There is much merit in the positions taken by the father. The mother has alleged no errors of law or principle in the majority’s constitutional analysis and Lauwers J.A. did not dissent on the constitutional points. It may be that serious constitutional issues to be tried can be identified but none have been identified for me and none are readily apparent.

[30] Moreover, the fact that the Supreme Court of Canada has yet to consider the removal of children to non-Hague Convention countries is of no moment if this case does not raise issues of law or legal principle that have broader application. I agree with the father that most of the issues in the appeal before us were questions of fact or mixed fact and law.

[31] I am nonetheless persuaded that there are serious issues that arise from Lauwers J.A.’s dissent that could inspire the Supreme Court of Canada to grant leave to appeal.

[32] First, it is not uncommon in other contexts to determine the seriousness of a risk based on a calibration of the likelihood that a risk will arise, and the degree of harm that will occur if that risk does arise. Lauwers J.A.’s concerns about the separation of the children and the mother, and the enforceability of the “with prejudice” agreement may not simply rest on a factual dispute with the majority, but on the proper outcome in non-Hague Convention cases when the risk of separation or unenforceability may not be more probable than not, but where those outcomes, if they occur, could pose significant risks to the welfare of the children.

[33] A second and related consideration is how the onus of proving serious risk operates when there is a risk of separation and yet an inability on the evidence to predict its impact. How significant must that risk be?

[34] Finally, in my view, there is a serious issue to be tried relating to whether gender inequalities in the law of the UAE, as a matter of law, undermine the integrity of best interest determinations.

[35] These may well be issues of public importance that could attract leave to appeal to the Supreme Court of Canada, notwithstanding that this is an appeal of a discretionary order. If the decision under appeal does not comport to the legal principles that these questions give rise to, the importance of deference evaporates.

(2) Irremediable Prejudice to the Applicant

[36] Although it is customary at this stage of the analysis to consider prejudice to the applicant – in this case, the mother – in custody cases where a stay of proceedings is sought “the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay”: D.C. v T.B., 2021 ONCA 562, at para. 9; K.K. v. M.M., 2021 ONCA 407, at para. 17.

[37] This principle may not apply in Hague Convention cases where the best interests of the child are compromised by postponing the determination of the children’s best interests in the country where they are habitually resident: J.P.B. v. C.B., at para. 33. Things are different, however, in non-Hague Convention cases. There can be no assumption that a non-signatory state will determine parenting rights based on the children’s best interests: Geliedan v. Radwah, 2020 ONCA 254, at paras. 37 and 38. I am persuaded that in non-Hague Convention cases where a stay of a return order is sought, the primary consideration in assessing irremediable harm is the risk of irremediable prejudice to the children.

[38] The mother argues that the best interests of the children would be harmed by altering the status-quo by removing the children from Ontario to the UAE, potentially to be separated from her. The father argues that the mother cannot rely on a status quo that she has unilaterally created; if so, she would be benefiting from what was found to have been the wrongful retention of the children: Zafar v Saiyid, 2017 ONCA 919, at para. 22. Although I accept the basic principle that the father invokes, it is not determinative here. As the mother points out, she is not referring solely to the status quo since she brought the children to Ontario. Rather, she has always been the primary caregiver and that primary care will be interrupted if the children are returned to the UAE where the father now has a guardianship and custody (decision-making responsibility and primary residence) order in place.

[39] The father argues that, to the contrary, there has already been a factual determination that the status quo will not be interrupted if the mother accepts his proposed “without prejudice” settlement offer and it is incorporated into an order by a court in the UAE, and if she chooses to take advantage of the avenues for gaining entry to the UAE that were found to be available to her. He submits, in effect, that I should make my decision based on the facts found below. I disagree. These determinations are the subject of the proposed appeal, and there are serious issues to be tried relating to whether those determinations were arrived at based on the correct principles. If the application judge erred in coming to these conclusions, there is a risk that the mother and children will be separated, or that parenting rights to the children will be determined based on gender-based principles or presuppositions rather than the best interests of the children. I am satisfied that, in the circumstances, there is a risk of irreparable harm to the children if a stay is denied.

(3) The Balance of Convenience

[40] I am persuaded that the balance of convenience favours granting the stay pending leave to appeal. I have already identified the risk of irreparable harm to the children. I am mindful, in coming to this conclusion, that it is invariably in the interests of children to have disputes about parental rights resolved promptly, and that any delay, including the delay pending judicial determinations, creates harm of its own. I recognize, for example, that unless the order below is enforced, the children will remain largely separated from their father, which is not in their best interests.

[41] However, I find solace that the film of the children with their father that was placed in evidence before me verifies that the father has been able to maintain a meaningful emotional bond with the children. Despite their physical separation, the children were excited to see their father, who they clearly love. This diminishes the risk of harm to the children created by perpetuating further delay in reunification while a final legal determination is made.

[42] More importantly, even assuming that the children would be returned to Ontario if the appeal succeeds, the risk that the status quo relating to the children’s primary care could be disrupted pending a final judicial determination is of greater concern than the harm caused by delay.

[43] Then there is the risk of involuntary separation of the mother from the children, given her lack of legal status in the UAE. In recognizing this risk, I am mindful that the trial judge accepted the expert evidence of Ms. Hamade that there are mechanisms enabling the mother to gain access to the UAE, and that she can voluntarily remain near her children if she so chooses. Lauwers J.A. has pointed out lingering concerns that those mechanisms cannot be assured, and he may be right. The fact remains that even if there are strategies for overcoming her lack of legal status, as a woman without such status, the mother is vulnerable to the risk of exclusion, at great personal loss to her and the children.

[44] I accept that there are offsetting risks to the father, including the risk of the perpetuation or the wrongful retention of his children, and the appreciable challenges he has encountered in maintaining contact with them. I do not mean to disregard the profound compromise of his parental rights that has occurred, but my best evaluation of all the circumstances is that the balance of convenience favours granting the stay.

[45] I take comfort in knowing that leave decisions tend to be made promptly. If the appeal to the Supreme Court of Canada does not have the merit that I suggest it might have, leave will be denied. I also take comfort in knowing that although I cannot order that a Supreme Court of Canada appeal should be expedited, there are mechanisms before the Supreme Court of Canada for doing so if leave is granted.

[46] Delay cannot be entirely avoided but it can be minimized. I can minimize front-end delay by ordering as a condition of the stay of proceedings that the mother must file her application for leave to appeal within 45 days from the release of the September 14, 2021 decision. The mother’s counsel shared their expectation that this deadline could be achieved.

CONCLUSION

[47] A stay of proceedings pending the determination of the mother’s leave to appeal application from the decision of this court dated September 14, 2021 is granted. As a condition of this stay, the mother must serve and file her leave to appeal application within 45 days of the receipt of the decision of September 14, 2021.

“David M. Paciocco J.A.”