COURT OF APPEAL FOR ONTARIO

CITATION: N. v. F., 2021 ONCA 614

DATE: 20210914

DOCKET: C68926

Lauwers, Hourigan and Brown JJ.A.

BETWEEN

N.

Applicant (Respondent)

and

F.

Respondent (Appellant)

Fareen L. Jamal, Fadwa Yehia and Edward C. Conway, for the appellant

Bryan R.G. Smith, Lindsey Love-Forester and Andrew Lokan, for the respondent

Estée Garfin and Hera Evans, for the intervener Attorney General of Ontario

Caterina E. Tempesta and Sheena Scott, for the intervener Office of the Children’s Lawyer

Heard: January 21, 2021 by video conference

On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated December 15, 2020, with reasons reported at 2020 ONSC 7789.

Hourigan J.A.:

A. introduction

[1] Trial courts are frequently called upon to make difficult decisions about the future care of children due to the break-up of parental relationships. Trial judges are parachuted into a family, made privy to its most intimate details, and charged with determining the best course for the children's future in the face of the parents’ opposing viewpoints. On appeal, considerable deference is paid to those decisions because trial judges have the opportunity to observe first-hand both the witnesses and the family dynamic. This case raises squarely the role of appellate courts in reviewing family law decisions.

[2] The underlying facts of the dispute are largely uncontroverted. The parties have been married since February 2012 and lived together in Dubai, the United Arab Emirates (“UAE”), for eight years. They have two children who are under the age of five. In mid-2020, the appellant advised the respondent that she intended to take the children to Milton, Ontario, for a month-long trip to visit her parents. The respondent consented to the trip, and the appellant purchased return airline tickets. However, within two weeks of arriving in Canada, the appellant told the respondent of her unilateral decision to not return to Dubai with the children.

[3] The appellant took no steps in the Ontario courts to determine the jurisdictional issue that arose regarding the custody and access of the children. As a result, the respondent was forced to commence legal proceedings, first in Dubai and then in Ontario. The matter proceeded to trial in the Ontario Superior Court. The trial judge issued a 181-page decision wherein he found that Ontario did not have jurisdiction and ordered the children returned to the UAE.

[4] In his comprehensive reasons for judgment, the trial judge found that the appellant was not a credible witness and disbelieved many of her claims about why the children should remain in Ontario. He also concluded that the appellant’s expert on the law of the UAE actually supported the respondent’s position on a critical legal issue – i.e. that the courts in Dubai looked at the “best interests of the child” in custody and access matters. Further, the trial judge held that the appellant’s expert on the children’s welfare was unable to opine on the issue of whether the children would suffer serious harm if returned to Dubai without the appellant. All of these findings were amply supported by the record and were open to the trial judge.

[5] On appeal, the appellant invites us to retry the case. However, she does not offer any persuasive reasons for why we should do so, and cannot articulate any errors of law or palpable and overriding errors of fact or mixed fact and law. Instead, she asserts that we should effectively consider her case de novo and rule in her favour.

[6] These reasons explain why I would decline to interfere with the trial judge’s decision. When an appellate court trespasses into the domain of a trial court and redoes its analysis, it runs the risk of rendering a results-based decision. Such decisions do not serve the cause of justice; they pervert it by creating uncertainty in the law for other similarly situated parties. This concern is particularly acute in family law cases where there may be sympathetic facts. Appellate courts must resist the temptation to conduct what is essentially a second trial on appeal.

[7] In my reasons, after briefly reviewing the facts and issues in this appeal, I will first consider the appellant’s motion for leave to tender fresh evidence, followed by the applicable standards of review. My analysis will then be broken down into an assessment of whether the trial judge erred in: (1) declining jurisdiction under s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”); (2) declining jurisdiction under s. 23 of the CLRA; (3) declining to exercise parens patriae jurisdiction; and (4) making an order under s. 40 of the CLRA. As I agree with the reasons of my colleague, Brown J.A., on the constitutional grounds of appeal raised by the appellant, I will not consider those issues in my reasons.

B. facts

[8] The appellant was born in Pakistan and immigrated with her family to Canada in 2005 when she was 15 years old. She is a Canadian citizen.

[9] The respondent was born in Pakistan and is a Pakistani national. He has lived in Dubai since January 2008, where he works as an executive with a major international bank.

[10] The parties were married in Pakistan in February 2012. The appellant joined the respondent in Dubai that same month, and the parties resided there for the entirety of their marriage.

[11] The parties’ daughter, Z., was born in Ontario in November 2016 and is a Canadian citizen. Their son, E., was born in Dubai in November 2019 and is also a Canadian citizen.

[12] Neither the parties nor their children are UAE nationals. The appellant has no independent right to reside in the UAE after the parties' divorce. Under UAE law, the appellant has a one-year grace period during which she can stay in the country without a residency permit.

[13] Throughout the parties' eight-year marriage, the appellant visited Ontario annually. On June 19, 2020, with the respondent's permission, the appellant travelled to Ontario with Z. and E., intending to visit her parents in Milton for one month. She purchased return airline tickets and was supposed to be back in Dubai on or around July 19, 2020.

[14] As noted, on or around July 2, 2020, the appellant informed the respondent that she and the children would not return to Dubai and that they would remain in Ontario. In September 2020, the appellant cancelled Z.’s enrollment in her Dubai school without the respondent’s knowledge or consent. She subsequently enrolled Z. at an Ontario school.

[15] The respondent commenced proceedings in the Ontario Superior Court of Justice and sought an order under s. 40 of the CLRA, returning the children to the UAE. The appellant responded by asking the court to exercise its jurisdiction under ss. 22 or 23 of the CLRA and to decide the matters of custody and access in her favour. She also raised a constitutional issue with respect to the return order provision in s. 40(3) of the CLRA.

[16] Prior to trial, the respondent served a “with prejudice” settlement offer that was disclosed to the trial judge. The terms of that offer included: that the appellant would be the primary residential parent and that major decisions would be decided jointly; that the respondent would purchase a house in Dubai in the appellant's name to be held in trust for their children; and that the respondent would secure a residency visa for the appellant. If the appellant was not satisfied with the proposed custody and support arrangements, the offer provided her with the alternative of pursuing her remedies in a UAE court. Further, the offer specifically stated that its terms could be incorporated into a s. 40 order under the CLRA.

[17] The trial judge heard the evidence and submissions of the parties over 11 days in November 2020. The Attorney General of Ontario participated as an intervener on the appellant’s constitutional application. Both the appellant and the respondent testified. The respondent also called one of the parties’ mutual friends, their nanny, and Diana Hamade (an expert on family law in Dubai) as witnesses on his behalf. The appellant called another of their mutual friends, her mother, Elena Schildgen (an expert on family law in Dubai), and Carol-Jane Parker (a psychotherapist), as witnesses on her behalf.

[18] The trial judge concluded that the respondent was “significantly more credible” than the appellant. He also made the following findings of fact:

• The appellant has always been the primary caregiver for the children.

• The parties’ nanny helped a great deal with the care of the children.

• The parties never had an agreement or settled intention to move to Canada.

• But for trips abroad, the children have spent their whole lives in Dubai.

[19] With respect to the three expert witnesses, the trial judge accepted all of the evidence of Ms. Hamade, some of the evidence of Ms. Schildgen, and a limited amount of the evidence of Ms. Parker. He made the following findings based on his consideration of the expert evidence:

• A court in Dubai would determine custody by making the best interests of the children its paramount consideration.

• A court in Dubai would be able to incorporate, approve, and enforce, as a valid order, the settlement proposed by the respondent if agreed to by the appellant.

• When infants are separated from their primary caregiver, they can face adverse emotional and psychological impacts.

• It is unknown whether the children in this case would suffer serious harm from such potential adverse impacts.

[20] Ultimately, the trial judge concluded that the court could not assume jurisdiction over the parties’ dispute under ss. 22 or 23 of the CLRA. He also rejected the appellant’s argument that the respondent had attorned to the jurisdiction of the Ontario courts.

[21] Pursuant to s. 40 of the CLRA, the trial judge was satisfied, on the balance of probabilities, that the children's best interests would be served by their return to Dubai, with or without the appellant, so that a court there could adjudicate the matters of custody, access, and guardianship. He also found that the children had been wrongfully retained in Ontario and that Dubai was their real home.

[22] Despite the appellant’s request in her written submissions, the trial judge declined to exercise the court’s residual parens patriae jurisdiction pursuant to s. 69 of the CLRA. He found that it would be inexplicable to do so, given the findings and conclusions he had already made in his reasons.

[23] The trial judge distilled two main components to the appellant’s constitutional argument: (1) that s. 40 is ultra vires the authority of Ontario’s powers; and (2) that s. 40 contravenes various protections afforded to the appellant and the children under the Canadian Charter of Rights and Freedoms. He concluded that the “vast weight of the jurisprudence” precluded him from finding in the appellant’s favour. Accordingly, he dismissed the appellant’s constitutional challenge.

C. issues

[24] The issues raised on this appeal and my conclusion on each issue may be summarized as follows:

(1) Should the proposed fresh evidence be admitted?

No. The evidence sought to be tendered is of little or no relevance to the issues in this proceeding, and in the case of one of the documents, could have been available at trial if the appellant had acted with reasonable diligence. Therefore, the appellant has failed to meet the test for the admission of fresh evidence on appeal.

(2) What is the applicable standard of review?

The jurisprudence establishes that significant deference must be paid to family law decisions. It is not the role of appellate courts to redo a trial judge’s analysis based on vague notions of what they perceive to be a just result. When appellate courts stray from their mandate and impermissibly interfere with lower court decisions, they run the risk of rendering results-based rulings, which create uncertainty in the law.

(3) Did the trial judge err in declining jurisdiction under s. 22 of the CLRA?

No, s. 22 does not apply. The trial judge correctly found that s. 22(1)(a) does not ground jurisdiction because the children were not living in Ontario with both parents since their arrival here in June 2020. Further, the appellant failed to establish that all six enumerated criteria are met under s. 22(1)(b).

(4) Did the trial judge err in declining jurisdiction under s. 23 of the CLRA?

No. The trial judge carefully considered the expert evidence regarding the law of UAE and made the correct decision about its application in this case. He also reached conclusions available to him regarding the respondent’s parenting plan and the issue of serious harm.

(5) Did the trial judge err in declining to exercise parens patriae jurisdiction?

The trial judge correctly applied the leading authority on parens patriae jurisdiction and found no necessity for the court to protect the children. There is no basis for appellate interference with this highly discretionary judgment call.

(6) Did the trial judge err in making an order under s. 40 of the CLRA?

This issue was not raised in the Notice of Appeal and was not argued by the appellant in her factum. Despite the fact the Office of the Children’s Lawyer (“OCL”) raised the issue in its factum, it was not properly before this court and I would decline to consider it.

D. analysis

(1) Fresh Evidence

[25] The appellant seeks leave to file the following fresh evidence: (1) an email from counsel for the respondent to counsel for the appellant, dated December 18, 2020; (2) the affidavit of Sameh Abdou, an Arabic language translator, sworn January 6, 2021; and (3) an email from counsel for the appellant to counsel for the respondent, dated January 8, 2021. All of these documents were created after the trial judge issued his reasons.

[26] The law regarding the admission of fresh evidence on appeal is well settled. In order to obtain leave to file such evidence, the moving party must establish that the evidence: (a) is credible; (b) could not have been obtained by reasonable diligence before the trial or motion; and (c) would likely be conclusive of an issue on the appeal: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 48; Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.

[27] Where the welfare of a child is at stake, the case law allows for a more flexible approach to the test. However, that increased flexibility does not render all proffered fresh evidence admissible. The factors listed in the test remain relevant: H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, at paras. 71-72, leave to appeal refused, [2016] S.C.C.A. No. 63.

[28] In the email dated December 18, 2020, counsel for the respondent advised counsel for the appellant that his client was likely entitled to a significant costs award. He cautioned that the appellant should not dissipate her assets. In the factum filed to support her fresh evidence motion, the appellant says that this email is relevant because it “demonstrates the Father’s attempt to intimidate the Mother using financial threats.”

[29] It is difficult to conceive how this email could meet the test for the admission of fresh evidence. If it were admitted, its inclusion in the record would not be potentially conclusive on any issue in the appeal. Instead, the email strikes me as the sort of communication that prudent counsel would routinely send to protect a client’s interest. Accordingly, it has no relevance to this appeal.

[30] The affidavit of Mr. Abdou is tendered to show that the Arabic language has a means of expressing the term, “best interests,” so the word, “best,” qualifies the word, “interest.” The appellant says Mr. Abdou’s clarification is relevant because Ms. Hamade, the respondent’s expert witness on UAE law, testified that the Arabic word for interest, being maslahah, could not be combined with an Arabic word meaning, “best,” since maslahah already stood for the concept of “best interest.” The appellant submits that she could not have foreseen this as an issue before trial as Ms. Hamade did not include it in her written report.

[31] Accepting for the moment that this evidence is credible, I am not satisfied that leave should be granted for its admission. I say this for two reasons. First, it could have been adduced through the exercise of reasonable diligence. The respondent presented his case first, and it would not have been difficult for the appellant’s counsel to raise the point in cross-examination or to seek leave to file an expert report on the subject at trial. Second, the experts on the law of the UAE were largely in agreement about the role that best interests play in that country’s legal system. Therefore, the affidavit would not be conclusive of any issue on the appeal.

[32] In the email dated January 8, 2021, counsel for the appellant wrote to counsel for the respondent seeking an update regarding the Dubai proceedings initiated by the respondent. She sought, among other things, copies of any orders made by the court and information on whether the respondent had stayed the proceeding. In her factum filed on the fresh evidence motion, the appellant argues that this email is relevant because courts in Dubai often make obedience orders requiring the mother to return to the household with a child (or children). The appellant submits that if the Dubai courts did so in this case, it “demonstrates the severe disability that the Mother suffers under UAE law.”

[33] I would decline to grant leave to file this evidence as I am not satisfied that it would be conclusive of any issue in the proceeding. The actual evidence proposed to be tendered is a short email from counsel for the appellant, asking the respondent a series of questions. The email adds nothing to the court's analysis. Further, there is no evidence before us indicating that the type of obedience orders referred to by the appellant has been made against her.

[34] For these reasons, I would decline to grant leave to the appellant to file any of the proposed fresh evidence.

(2) Standards of Review

[35] At the outset of my analysis of the grounds of appeal, it is necessary to consider the jurisprudence regarding the applicable standards of review.

[36] In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, the Supreme Court considered the standard of review in family law cases pertaining to support. L’Heureux-Dubé J., writing for the court, stressed, at para. 12, the public policy reasons that animate significant deference in the review of such decisions:

[12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.

[37] The reasoning of L’Heureux-Dubé J. was applied in the context of a custody order in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014. In that case, the court considered the finding of the British Columbia Court of Appeal that the principles in Hickey do not fully apply in custody cases and that appellate courts should be free to reweigh the evidence on the grounds of protecting the best interests of a child, even in the absence of a material error. Bastarache J. rejected this approach, at para. 16:

[16] In the present case, the Court of Appeal considered the decision of the trial judge and decided that it was within the scope of review to examine all the evidence and determine whether the trial judge weighed the evidence improperly. It is in reconsidering the evidence that the Court of Appeal determined that the trial judge had made material errors. As discussed above, this is not the proper method of appellate review. If the Court of Appeal had followed the appropriate method, it would not have reconsidered the evidence and found what it described as material errors in Warren J.’s decision. There was no scope for appellate intervention in this case.

[38] In my view, the policy rationales that support deference in the context of reviewing custody and support orders apply with equal force to a consideration of whether an Ontario court should assume jurisdiction or make a return order under the CLRA. The analysis of those issues involves the application of evidence to a series of factors identified in the legislation. Absent a legal error or a palpable and overriding error of fact or mixed fact and law, it is not the place of an appellate court to redo a lower court’s analysis to achieve a result that it deems to be in the best interests of the child.

[39] Proper adherence to the standard of review helps enforce a discipline in appellate courts that guards against the potential of rendering results-based decisions, which do not adhere to the law and create uncertainty for other similarly situated parties. This danger is particularly pronounced in family cases where there may be sympathetic facts, and the appellate court may have a different view on what it believes is the fairest result.

[40] In the present case, there is also an issue regarding the proper interpretation of foreign law. The appropriate standard of appellate review in Ontario on questions of foreign law is correctness: Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, 144 O.R. (3d) 507, at para. 29.

[41] In summary, the identification and faithful application of the correct standard of review are vital in ensuring that appellate courts do not stray from their proper role and enter the domain of trial judges. When an appellate court moves beyond its function as an error-correcting institution and engages in the determination of factual issues and issues of mixed fact and law, the justice of the case is imperilled.

(3) Section 22 of the CLRA

[42] The legislature has defined the circumstances in which an Ontario court will assume jurisdiction for the purposes of making a parenting or contact order in s. 22 of the CLRA. Before considering that section, it is helpful to consider this court’s guidance in Ojeikere regarding the public policy purposes underlying s. 22. Laskin J.A., writing for the court, stated:

[13] All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III. In substance, there are five purposes:

• To ensure that custody and access applications will be determined on the basis of the best interests of the children;

• To avoid the concurrent exercise of jurisdiction by tribunals in different places;

• To provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

• To discourage the abduction of children as an alternative to the determination of custody rights by due process; and

• To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.

These general purposes set out in s. 19 must guide the interpretation and application of ss. 22 and 23, the provisions in issue on this appeal.

[14] The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.

[15] Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1) and the catalogue of best interests considerations listed in s. 24(2)[.]

[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child. [Footnotes omitted.]

[43] In considering whether Ontario may assume jurisdiction to determine a parenting or contact order, the court will not conduct a “best interests” analysis. Instead, it will focus on the specific factors identified in s. 22 that allow it to exercise jurisdiction, while being mindful of the public policy purposes underlying this part of the CLRA, including the discouragement of international child abductions.

[44] With that background in my mind, I move to a consideration of s. 22, which provides:

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual residence

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.

3. With a person other than a parent on a permanent basis for a significant period of time.

Abduction

(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[45] The appellant argued unsuccessfully at trial that the court should assume jurisdiction under s. 22. The trial judge reasoned that s. 22(1)(a) was inapplicable because the children had not been living in Ontario with both of their parents since their arrival in June 2020. The appellant does not challenge that finding on appeal.

[46] The focus of the appellant’s submissions on this ground of appeal is that the court erred in not assuming jurisdiction under s. 22(1)(b). To find jurisdiction under this subsection, the appellant had the onus of establishing that all six enumerated criteria were met on a balance of probabilities: Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, at para. 50. Her failure to meet her onus on any one of the factors prohibits her from relying on this subsection.

[47] The trial judge found that the appellant was unable to establish the following four factors: (1) that substantial evidence concerning the best interests of the children is available in Ontario; (2) that there was no custody proceeding pending in another jurisdiction; (3) that the children have a real and substantial connection to Ontario; and (4) that the balance of convenience favours Ontario taking jurisdiction.

[48] For the purposes of the appeal, I will only consider the issue of whether there was substantial evidence in Ontario concerning the best interests of the children, as required by s. 22(1)(b)(ii). In reaching his conclusion that the appellant had not met her onus on this point, the trial judge noted, among other things, that the children had only lived in Ontario for six months, that neither the parties nor the children had spent significant time in Ontario during the period from February 2012 to June 2020, and that “nobody in Ontario testified except for [the appellant] and her mother”. These findings were well-grounded in the evidence and free of error. They are immune from appellate interference.

[49] Given that the criterion under s. 22(1)(b) are cumulative, and that the appellant failed to prove the availability of substantial evidence concerning the best interests of the children in Ontario, this ground of appeal must fail. It is unnecessary to consider the appellant’s other arguments under s. 22.

(4) Section 23 of the CLRA

[50] Much of the argument on the appeal focussed on the trial judge’s s. 23 analysis. That section provides:

Serious harm to child

23 Despite sections 22 and 41, 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,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[51] Since the parties’ children were physically present in Ontario, s. 23(b) permitted the trial judge to exercise jurisdiction over their custody or access if satisfied, on a balance of probabilities, that the children would suffer “serious harm” should they be returned to Dubai.

[52] A trial judge’s exercise of s. 23 is discretionary. In Ojeikere, at para. 64, Laskin J.A. provided a list of potentially relevant factors that a court could use to determine whether a child will suffer serious harm. He considered: (1) the risk of physical harm; (2) the risk of psychological harm; (3) the views of the children; and (4) the mother’s claim that she would not return to her home country, even if the children were required to do so.

[53] The trial judge characterized the appellant’s s. 23 argument as the “most legitimately debatable point at trial.” He applied the factors identified in Ojeikere and found:

• No evidence that the children were at risk of being physically harmed if they returned to Dubai.

• Some circumstantial evidence that the children could be at risk of emotional and psychological harm if they returned to Dubai without the appellant.

• No evidence that the children had specific views or preferences as to with whom or where they resided.

• There was an absence of reliable evidence that the court system in Dubai will do anything other than determine custody in accordance with the best interests of the children if contested, award custody to the appellant if contested, and approve the settlement proposal tendered by the respondent if agreed to by the appellant.

[54] The appellant submits that the trial judge erred in his analysis of serious harm. Specifically, she says that he erred in his consideration of: (a) her uncertain residential status in Dubai; (b) the respondent’s proposed settlement offer and consent order; (c) the law of the UAE that she says disadvantages her; (d) the adequacy of the respondent’s parenting plan; and (e) the nature of the potential harm to the children.

[55] My colleague, in his dissent, accepts the appellant’s position on s. 23 and would accordingly allow the appeal. He finds that the trial judge made a palpable and overriding error because he failed to properly assess the harm of an involuntary separation of the children from the appellant. Further, with regard to the nature of the harm, my colleague says that the trial judge should have found a risk of serious harm despite the fact that the appellant’s expert could not opine on the specific risk to Z. and E.

[56] In this section of my reasons, I will explain why I would not interfere with the trial judge’s conclusion on the issue of serious harm. In short, the appellant’s submission amounts to an invitation to reweigh the evidence and draw different conclusions than the trial judge did. As discussed above, that would be an impermissible intrusion into the role of the trial judge.

[57] Below, I will consider each of the appellant’s arguments with respect to the trial judge’s alleged errors in his s. 23 analysis. Before doing so, I note the following comments from Harvison Young J. (as she then was) in Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, regarding the context of s. 23 and its onus:

[37] The context of s. 23 is important to understand. While this matter is not governed by the Hague Convention, the principle underlying ss. 22 and 23 is similar: children should be protected from the harmful effects of their wrongful removal from their habitual residence, and their prompt return to the state of their habitual residence should be ensured.

[38] This is the general rule. It reflects the presumption that it is generally in the best interests of the child that issues relating to custody and access be adjudicated in the jurisdiction where they have habitually resided. For that reason, the parent who has removed or wrongfully retained the children from their place of habitual residence has the burden of establishing the “serious harm” that permits the Ontario court to accept jurisdiction in such a case: see Rajani v. Rajani, 2007 38126 (ON SC), at para. 90; and Ndegwa v. Ndegwa (2001), 2001 28132 (ON SC), 20 R.F.L. (5th) 118 (Ont. S.C.), at para. 30.

(a) Residential Status

[58] According to the appellant, the trial judge “erred in placing insufficient weight on the fact that the Mother has no automatic legal right to reside in the UAE.” This is one of the many examples where the appellant is asking this court to reweigh the evidence, rather than identifying an error that this court must correct.

[59] Regardless, the trial judge considered the evidence of the respondent’s expert on the law of the UAE, Ms. Hamade, and determined that the appellant had various options available to her. Specifically, the trial judge summarized Ms. Hamade’s evidence as being that after the divorce, the appellant would be granted a one-year grace period during which she could remain in Dubai without a residency permit. Ms. Hamade testified that when the one-year period was over, the appellant could continue to stay in the country through (1) sponsorship by her ex-husband, (2) the purchase of a property, including a property held in trust, or (3) the use of a "free zone," which involves the rental of an office.

[60] On the issue of UAE law, the trial judge preferred the evidence of Ms. Hamade over that of Ms. Schildgen. He explained why he reached that conclusion, at paras. 295-297, as follows:

[295] Having conducted hundreds of hearings over the last nine years, many of them with expert evidence, I must say that I was very impressed with the evidence of Ms. Hamade.

[296] She was precise in her evidence. She did not waver in her evidence. She was not impeached in cross-examination, except in one instance where Mr. Conway put to her an opinion that she rendered in another case; to which she replied, satisfactorily in my view, that there were significant factual differences between that case and ours. She delivered her evidence in a straightforward, unbiased, sharp, and articulate manner.

[297] Further, Ms. Hamade is very experienced in family law (more so than Ms. Schildgen), and very experienced in the courts in the United Arab Emirates (Ms. Schildgen is not), and fluent in the Arabic language in which the original relevant legislation was written (Ms. Schildgen is not), and intimately familiar with all aspects of N.’s proposed settlement agreement (dated October 30, 2020), including trusts (Ms. Schildgen is not).

[61] An appeal court has limited scope to intervene on a trial judge’s interpretation of expert evidence. Krever J.A., writing for the court in Larche v. Ontario (1990), 1990 8079 (ON CA), 75 D.L.R. (4th) 377 (Ont. C.A.), leave to appeal refused, [1991] S.C.C.A. No. 25, described it this way:

[3] Before addressing the appellant's submissions, two general points may usefully be made with respect to the issue of liability of both the hospital and the architects. First, the submissions relate to findings of fact with which this court can interfere only if the appellant can show that they reflect palpable and overriding errors on the part of the trial judge. Second, in general, the appellant's submissions seek to have this court accept the opinions of expert witnesses that the trial judge rejected and reject the opinions of expert witnesses that the trial judge accepted. It would require the existence of extraordinary circumstances before this court would do so, given the special position a trial judge is in who saw and heard the witnesses and gave reasons for the findings made.

[62] The trial judge accepted the evidence of Ms. Hamade as he was entitled to do. Further, the respondent had agreed to incorporate, as undertakings in a s. 40 order, the terms of his offer to settle, which included securing a residency visa for the appellant. The trial judge, in his reasons, invited appellant’s counsel to make further submissions regarding the incorporation of the respondent’s settlement proposal in his order. This direction was consistent with what the court did in Bolla, where the order incorporated the undertakings given by the respondent father regarding the return of the children: Bolla, at paras. 140-144. The appellant’s lawyer rejected the offer and advised the court that his client did not seek further direction from the trial judge.

[63] Clearly, the trial judge was aware of the concern associated with the appellant’s residency status, but he accepted the evidence of Ms. Hamade that there were workable solutions to resolve the issue. He even invited counsel to make submissions so that the solution could be incorporated into his order. The appellant chose not to avail herself of that opportunity. I fail to see any error in the trial judge’s treatment of this issue. I disagree with my colleague’s suggestion that the respondent has “not proven his ability to mitigate Mother’s precarious residency status.” That reverses the onus, which was on the appellant to prove serious harm.

(b) Settlement Offer and Consent Order

[64] As noted, in his reasons, the trial judge referenced the “with prejudice” settlement offer served by the respondent. Based on the testimony of Ms. Hamade, he found that an agreement between the parties could be incorporated into an order of a Dubai court and would be enforceable by the court.

[65] The appellant submits that the settlement offer is disadvantageous to her because she faces the application of UAE law (which is different from Ontario law), both in terms of enforcing the agreement and in terms of contesting the agreement if she disagrees with the provisions. The appellant also argues that the trial judge “unreasonably assume[d] [that] there will be no future disagreement regarding parenting issues and thereby fail[ed] to assess the risk of future harm” (emphasis in original).

[66] The appellant’s concerns are not consistent with the expert testimony. Ms. Hamade testified that the UAE courts respect settlements and are happy to make them a part of binding court orders. She also gave evidence that if a party wants to alter an agreement incorporated into an order, they must show an “impactful” change of circumstances. According to Ms. Hamade, the primary consideration on such an application will be the children’s best interests. Ms. Schildgen, the appellant’s expert, also testified that any dispute about changing the terms of an order would be resolved on the basis of the children’s best interests.

[67] The trial judge carefully considered the expert evidence and reached the following findings, at paras. 301-305, regarding the best interests of the children and the enforceability of a settlement agreement:

[301] It is inconceivable that this Court would find that Ms. Schildgen’s evidence supports a conclusion that (i) best interests of the child does not trump all else in child custody law in Dubai, or that (ii) settlement agreements like the one proposed by N. in this case are not enforceable as valid court orders in Dubai.

[302] For this Court to draw either of those conclusions in favour of the mother, this Court would have to cherry-pick to a degree that is grotesque, and I concur with Mr. Conway that this Court should avoid doing so. I would have to completely ignore the entire cross-examination of Ms. Schildgen at trial, by finding, I suppose, that she must have been confused or misspoke multiple times or something, and then I would have to accept just the direct evidence of Ms. Schildgen, including her report, and then finally I would have to reject entirely the evidence of Ms. Hamade.

[303] I decline to do so. I commend Ms. Schildgen for being honest in cross-examination. I do not think that she was confused at all. I appreciate her upholding her duties as an unbiased, professional expert witness. She was being fair to this Court and non-partisan to make sure that I was not left with the impression that “best interests of the child” is a concept that means virtually nothing in Dubai. In fact, it means everything.

[304] Let me be frank, with respect. The cross-examination of Ms. Schildgen at trial eviscerated the very underpinning of the mother’s case (apart from the Constitutional question), that is that the children cannot be returned to Dubai because this Court can have no confidence that any decision made there regarding their welfare will be based, as the paramount consideration, on their best interests. Ms. Schildgen’s evidence in cross-examination points precisely to the opposite conclusion. [Emphasis in original.]

[68] Those very clear findings were made by the trial judge, who had the opportunity to observe the testimony of the expert witnesses. There is no legitimate basis for this court to interfere.

[69] My colleague, in his dissent, takes a different approach to the trial judge’s reliance on the settlement offer. He suggests that the respondent could renege on his offer, and that consequently, there is no guarantee the offer will find its way into a Dubai court order. According to the dissent, the failure of the trial judge to consider this possibility was an error that influenced his s. 23 analysis and gave him a false sense of security regarding what would happen if the children returned to Dubai.

[70] This criticism is unfounded. I do not doubt that the trial judge recognized the potential risk of the respondent resiling from his commitment and attempting to limit the appellant’s access to the children. However, the context of the proceeding has to be considered.

[71] Perhaps the one indisputable fact established on the record was that the appellant, not the respondent, sought to limit access to the children. The appellant unilaterally retained the children in Ontario, and, according to the trial judge, in her draft final order, she “proposed anything but lots of access.”

[72] In contrast, there was nothing in the record to suggest that the respondent was intent on limiting the appellant’s interaction with the children. As a sign of his good faith, the respondent proposed incorporating the terms of his settlement offer, which provided that the appellant would be the primary residential parent for the children and that major decisions would be decided jointly, into an Ontario court order. That offer, which the trial judge was willing to incorporate into his s. 40 order, was rejected by the appellant. Further, the trial judge made an explicit finding that the respondent was credible and that the appellant was not.

[73] It is also essential to consider whether this type of analysis properly reflects the role of an appellate court in reviewing a decision under s. 23 of the CLRA. There is no genuine legal or factual error identified. Instead, the concern expressed by the appellant is that the trial judge did not draw the same inference as my colleague would from the evidence. With respect, that is not our role on appeal. Moreover, the concern that my colleague expresses about the respondent possibly resiling from his settlement offer is speculative.

(c) UAE Law

[74] The appellant submits that the trial judge erred in his assessment of UAE law. She argues that he should not have relied solely on Ms. Hamade’s evidence, which she says is contradicted by the plain wording of the relevant UAE legislation, the Personal Status Law No. 28 ("PSL"). In addition, the appellant points to gender-based inequities in the law, specifically that mothers can never be guardians under the PSL and that when E. turns 11 and Z. turns 13, the appellant could potentially be stripped of her role as custodian. The appellant ultimately asserts that since the UAE law disadvantages her, and that a “risk of harm to a primary caregiver is [a] risk of harm to a child,” the trial judge’s errors warrant appellate intervention.

[75] I would not give effect to these arguments. As noted above, the expert evidence on the law of the UAE was carefully considered by the trial judge. He explained why he preferred the evidence of Ms. Hamade over the evidence of Ms. Schildgen.

[76] Regarding the appellant’s complaint about the trial judge’s alleged failure to account for the plain wording of the PSL, the trial judge was permitted to accept Ms. Hamade's evidence that the legislation is read with regard to the relevant jurisprudence interpreting the same. This is hardly a novel concept in our domestic law, and it is unsurprising that the UAE utilizes a similar approach to statutory interpretation. In my view, the trial judge reached the correct conclusion on how to interpret the PSL, and there is no basis for appellate interference.

[77] I am also satisfied that the trial judge was aware of the problematic aspects of UAE law and its inconsistencies with Canadian values. However, the trial judge properly focussed on the issue before him, being whether the application of UAE law would result in serious harm to the children.

[78] In his dissent, my colleague states that if UAE law were applied, then the "appellant would not have the incidents of custody contemplated by Ontario law, to the detriment of the children." His concern appears to be that under UAE law, for the initial parenting arrangements, the appellant will be appointed custodian, which amounts to day-to-day custody, and the respondent will be granted guardianship, which gives him big picture decision-making authority. According to my colleague, this is detrimental to the children when compared to ss. 19 and 20 of the CLRA, which emphasize the sharing of decision-making responsibility between both parents.

[79] It is worth reiterating at this juncture that the role of the court under s. 23 is to determine whether the party invoking the section has established, on a balance of probabilities, that a child will suffer serious harm if an Ontario court does not assume jurisdiction. For the law of the UAE to qualify as serious harm, that harm would have to be clearly established on the evidence. It is not enough to point to differences in the law and suggest that a parent may have different rights in a foreign jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the CLRA, which was implemented to protect the safety of children, must not be reduced to a means for Ontario courts to prefer this province’s system of justice over those of foreign jurisdictions under the guise of child safety.

[80] Under the law of the UAE, on the initial determination of custody, the appellant would actually have an advantage over her position than if this case were determined in Ontario. In Dubai, the usual order would be that she is appointed custodian and thus granted primary physical custody of the children and the power to make day-to-day decisions on their behalf. It is true that the respondent would ordinarily be appointed as guardian and given the power to make significant decisions. However, the trial judge examined the nature of the parenting arrangements that would be put in place if the parties were obliged to follow UAE law and did not come to an agreement on how the children would be raised. Specifically, he examined the rights of the appellant in that scenario and concluded, at para. 378, as follows:

[378] I pause here to note that I disagree with the submission that F. will be deprived of decision-making authority in Dubai. I accept the evidence of both Ms. Hamade and Ms. Schildgen that F. will be granted custody of the children in Dubai, and that means day to day care and the decision-making authority that goes along with that. Further, I accept the evidence of Ms. Hamade that the rights of the custodian are not subject to those of the guardian. Besides, the fact that the guardian, N., is able to make certain decisions about the children is of no consequence here, in terms of prejudice to F., because the evidence demonstrates that things like education and religion for Z. and E., including the place of schooling for Z., were not subjects of dispute between the parties by the time that F. left with the children in June 2020. There is simply no basis in the evidence at trial to conclude that the custodial rights of F. in Dubai will be some illusory concept that will not have any real meaning to it. I find otherwise.

[81] It is evident from the foregoing that the trial judge turned his mind to the nature of the parenting arrangement for this family if the parties did not reach an agreement. He correctly concluded that the appellant would have physical custody of the children and would make the day-to-day decisions regarding their welfare. With respect to the respondent's decision-making rights, the trial judge ascertained that in the circumstances of this family, they would have limited impact, as the evidence indicated the parties agreed on significant issues like schooling and religious instruction. Further, as noted above, the trial judge understood that any changes after the initial order for custody would be determined according to the children's best interests.

[82] In my view, the trial judge correctly concluded that the application of UAE custody law would not harm the children. Those conclusions were well-rooted in the evidence and open to him. Again, there is no basis for appellate interference.

[83] I also observe that if my colleague’s analysis were to be followed, the precedent established would be concerning. Such a decision would send a message to parents living in the UAE that if they unilaterally come to Ontario with their children, they will not be required by the Ontario courts to send their children home. Instead, they can avoid the s. 22 analysis and reduce the s. 23 analysis to a question of whether they would be subject to the law of the UAE. Thus, the underlying objective of the CLRA to reduce child abductions would be jettisoned in the wake of the rather provincial view that unless Ontario law is applied, children will suffer serious harm. As a matter of comity, public policy, and common sense, such a precedent leaves much to be desired.

(d) Respondent’s Parenting Plan

[84] The appellant argues in her factum that the respondent had the onus of establishing that no serious harm would result if he became the primary caregiver for the children. No authority is cited for this proposition, likely because it is incorrect. Section 23 puts the onus on the appellant to establish, on a balance of probabilities, serious harm: Bolla, at para. 38.

[85] According to the appellant, the respondent’s parenting plan was inadequate because he refused to significantly cut back on his work schedule and because he indicated that he would rely on the assistance of the nanny and his relatives to raise the children. It is difficult to ascertain the error that the trial judge is alleged to have made. Presumably, the appellant disagrees with the proposed plan and seeks this court's concurrence with her opinion. That is not our role. In any event, I am also not satisfied that the children would suffer any harm under the respondent’s parenting plan.

(e) Nature of Potential Harm

[86] At trial, the appellant proposed to call a psychotherapist, Carol-Jane Parker, to give expert evidence. The respondent opposed qualifying Ms. Parker as an expert witness, and the trial judge conducted a voir dire. He ruled that Ms. Parker could give expert evidence on the issue of the potential impacts (emotional and psychological) the children may face if they are separated from their primary caregiver. For the purposes of her evidence, an infant was defined as being up to five years of age. Thus, both children were considered infants.

[87] The trial judge's analysis of Ms. Parker's evidence is found at paras. 305-315 of his reasons:

[305] Finally, moving to Ms. Parker, I find that her evidence is of limited assistance to this Court. Without hesitation, I accept her evidence that infants can face serious negative effects from being removed from their primary caregiver, but I knew that before Ms. Parker testified. No trial judge needs expert evidence for that.

[306] I did need expert evidence on other things, however, and Ms. Parker helped me greatly with those areas.

[307] In direct examination, Ms. Parker testified that the research indicates potential negative consequences for infants, generally, when they are separated from their primary caregiver: cognitive impairment (such as reading difficulties), negativity, aggressive behaviours, symptoms of borderline personality disorder, and difficulties managing stress, included. I accept that evidence.

[308] Brain development in an infant is impacted where there is a loss of consistency that the primary caregiver provides, stated Ms. Parker in direct examination. I accept that evidence.

[309] In cross-examination, Mr. Smith read from a professional resource that the quality of care and responsiveness of the new (alternate) caregiver will impact how the child responds to the separation from the primary caregiver; and Ms. Parker agreed with that statement. I accept that evidence.

[310] Ms. Parker agreed in cross-examination that the culture of the family in question affects the potential harm of separating a child from the primary caregiver. I accept that evidence.

[311] In cross-examination, Ms. Parker stated that there are two types of harm from the separation – one is short-term (crying, loneliness) and is usually resolved within months, and the other is longer-term. Both types of harm can be ameliorated and treated through counselling and professional help, and through continued contact with the mother (whether in-person and/or online). I accept that evidence.

[312] Otherwise, I do not accept any of Ms. Parker’s evidence, whether given in direct examination or in cross-examination at trial, as to what will likely happen with these two children, Z. and E., if they are separated from F.

[313] In my view, Ms. Parker’s evidence on the voir dire about not being able to express an opinion about these children with any degree of certainty was not limited to an opinion about attachment; it was in reference to any opinion at all. I have read the transcript in question many times; there is no other reasonable interpretation of the words used.

[314] My mid-trial ruling expressly permitted Ms. Parker to provide evidence about these children specifically. She did nothing wrong at trial in doing so. But the fact that she then said that her opinions about these children are almost guarantees (my word; she said “very high degree of certainty” and “very certain”) gives me great discomfort. It is totally at odds with what she said during the voir dire.

[315] Thus, I cannot rely upon Ms. Parker’s opinion evidence when it comes to Z. and E…. [Emphasis in original.]

[88] The trial judge applied his findings regarding Ms. Parker’s evidence in his consideration of whether the appellant had met her onus of establishing serious harm. He accepted Ms. Parker’s testimony as circumstantial evidence that the children could be at risk of emotional or psychological harm if separated from the appellant. However, the trial judge placed very little weight on the appellant's testimony that she would not return to Dubai with them. He believed that she was unhappy while there, but rejected her evidence that she suffered religious discrimination and social isolation.

[89] The appellant submits that the trial judge erred in minimizing the risk of harm associated with separating a primary caregiver from an infant. She also argues that the trial judge wrongly rejected the evidence of Ms. Parker by subjecting it to a standard of certainty.

[90] There are two points that need to be stressed regarding Ms. Parker's evidence. First, Ms. Parker conceded on the voir dire that she could not testify about the psychological impact of separation on these children to any degree of certainty, without conducting an assessment. Second, she accepted that several factors could lessen the risk of harm and ameliorate such harm, including the family's culture, the quality of care of the alternate caregiver, and the use of counselling services. These points led the trial judge to discount Ms. Parker’s trial evidence regarding her high degree of certitude that the children would suffer harm.

[91] Ultimately, the trial judge accepted Ms. Parker’s evidence, but in assessing its weight, concluded the evidence was not specific enough for the appellant to prove, on a balance of probabilities, that the children would suffer serious harm if separated from her. This was a conclusion available to the trial judge. Ms. Parker herself testified that an assessment was necessary to opine on the issue of serious harm, and admitted that she had not conducted one. Ms. Parker also provided no analysis before the trial judge on how various mitigating factors might impact the potential for harm. Therefore, the trial judge concluded that Ms. Parker’s evidence was insufficient to meet the appellant’s onus about serious harm.

[92] In his dissent, my colleague states that the trial judge made a palpable and overriding error in analyzing Ms. Parker's evidence. He holds that:

[a]n indefinite separation of two quite young children, one under two years old and the other only four, from the parent who has always been their primary caregiver, constitutes a risk of serious harm. This finding can be reached without any expert evidence on the specific impact such a separation is likely to have on Z. and E. in particular. A risk of serious harm is established if the court is convinced on a balance of probabilities that this separation will occur.

[93] If my colleague is correct, then there was no need for Ms. Parker to testify. Indeed, much of the evidence called at trial was superfluous. According to his logic, to succeed on a s. 23 argument, all that a primary caregiver needs to establish is: (1) that the children in issue are under the age of five; (2) that they refuse to return the wrongfully retained children to the children’s home jurisdiction; and (3) that they refuse to return to the children’s home jurisdiction if the children are required to go back there.

[94] This logic is problematic for several reasons. First, it encourages child abductions, contrary to one of the public policy purposes underlying the CLRA. Second, it calls for an analysis that focuses solely on the preferences of the custodial parent and not on the best interests of the children. Third, it uncritically accepts that there will be serious harm regardless of the circumstances in a particular case, which are ignored entirely. Fourth, it comes dangerously close to reviving the long-discredited tender years' doctrine. Fifth, it replaces the discretion to be exercised by the trial judge with a hard-and-fast rule.

[95] The trial judge considered the expert and lay evidence regarding serious harm and applied it to the facts of this case. He reached an available conclusion on the evidence. The role of this court is not to redo that analysis or to replace it with a non-discretionary rule that must be followed when there are cases involving the wrongful retention of infants.

(f) Parens Patriae Jurisdiction

[96] The trial judge declined to exercise parens patriae jurisdiction. In so doing, he relied on E. (Mrs.) v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388, the leading case on the issue. There, the Supreme Court held, at p. 426, that parens patriae jurisdiction is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves.”

[97] In the case at bar, the trial judge was not satisfied that necessity had been established. The trial judge’s decision was highly discretionary and is owed deference: Eve, at p. 427; Pellerin v. Dingwall, 2018 BCCA 110, 7 B.C.L.R. (6th) 314, at para. 38. As the appellant has not shown any error in the trial judge’s decision to decline parens patriae jurisdiction, I would dismiss this ground of appeal.

(g) Section 40 Order

[98] The OCL, which was granted intervenor status on the appeal, submits that in making a s. 40 order, a court must consider the best interests of the child (or children) who would be the subject(s) of the order. This issue was not raised in the Notice of Appeal or addressed in the appellant’s factum. It is not properly before this court, and I would decline to consider it.

E. disposition

[99] For the foregoing reasons, I would dismiss the motion for leave to file the fresh evidence and dismiss the appeal.

[100] Regarding the costs of the appeal, the parties may make brief written submissions of no more than five pages plus a bill of costs. The respondent’s submissions are due within 14 days of the release of these reasons. The appellant’s submissions are due within 14 days of the receipt of the respondent's submissions.

“C.W. Hourigan J.A.”

Brown J.A. (Concurring)

I. OVERVIEW

[101] I concur with my colleague, Hourigan J.A., and agree with his proposed disposition of this appeal. These reasons supplement his by dealing with the constitutional grounds of appeal advanced by the appellant mother, F.

[102] The mother asserts two types of constitutional claims. The first is a division of powers claim, in which she contends that s. 40(3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), is ultra vires the Province of Ontario. Her second claim is based on the Canadian Charter of Rights and Freedoms: namely, that by authorizing an order that directed the two children return to Dubai where the issue of custody would be determined, CLRA s. 40(3) infringed her rights guaranteed by ss. 2(a), 7, and 15 of the Charter and infringed those of the children under ss. 2(a), 6(1), 7, and 15.

[103] The trial judge rejected both claims. The mother appeals, essentially repeating the arguments she made below. For the reasons that follow, I would not give effect to her arguments.

II. DIVISION OF POWERS ISSUE

A. DECISION OF THE TRIAL JUDGE

[104] In her Fresh as Amended Answer, the mother seeks “[a] declaration that state-action directly or indirectly requiring the removal of an individual from Ontario, pursuant to section 40(3) of the Children’s Law Reform Act (“CLRA”) is ultra vires the Province of Ontario.” The mother argues that CLRA s. 40(3) is ultra vires Ontario because all acts of removal of a person from Canada are tantamount to a deportation, which lies within the exclusive legislative power of Parliament.

[105] In considering that submission, the trial judge, citing Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 25-29, recognized that he must ascertain the pith and substance, or the true nature, of CLRA s. 40(3). He observed the Supreme Court held in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 23-25, that a return order made under CLRA s. 40(3) is not a custody order. He rejected the mother’s submission that that characterization applies only to cases where the foreign country is a signatory to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (“Hague Convention”), holding that the rationale applies equally to orders made to return a child to a non-Hague Convention country.

[106] The trial judge held that CLRA s. 40(3) “is all about the return of children to a place (in this case, Dubai) that they are most closely connected to, for a determination of custody issues in that place, provided no serious harm will result (which I have found to be the case here).” The trial judge adopted the analysis in Kovacs v. Kovacs (2002), 2002 49485 (ON SC), 59 O.R. (3d) 671 (S.C.), which he read as holding that CLRA s. 40 falls within provincial legislative authority.

B. ISSUE ON APPEAL

[107] The mother submits that the “matter” of CLRA s. 40(3) is the removal of a citizen from Canada, which falls within exclusive federal jurisdiction. To support her position, she relies heavily on the dissent of Kellock J. in the decision of the Supreme Court of Canada in McKee v. McKee, 1950 10 (SCC), [1950] S.C.R. 700 (“McKee (SCC)”), rev’d 1951 305 (UK JCPC), [1951] 2 D.L.R. 657 (P.C.) (“McKee (JCPC)”).

[108] On his part, the respondent father, N., argues that in its pith and substance CLRA s. 40(3) concerns a matter of child welfare and family law, which falls within provincial jurisdiction: R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254. The intervenor, the Attorney General of Ontario (“AGO”), supports the father’s submission.

[109] My analysis shall proceed as follows. First, I will summarize the principles governing the “pith and substance” analysis required to determine whether legislation falls within the constitutional competence of the federal or a provincial government. Second, I will characterize the “matter” of CLRA s. 40(3). In the course of so doing, I will describe the statutory scheme in which CLRA s. 40(3) is embedded, examine the purpose of a return order, and consider the mother’s submissions regarding the McKee case. Finally, I will classify the “matter” of CLRA s. 40(3) for purposes of determining whether the provision falls within the legislative competence of Ontario.

C. THE PRINCIPLES GOVERNING A “PITH AND SUBSTANCE” ANALYSIS

[110] Although early Canadian constitutional decisions by the Judicial Committee of the Privy Council applied a rigid division of federal-provincial powers as watertight compartments, subsequent Supreme Court jurisprudence has favoured a flexible view of federalism – the so-called modern form of cooperative federalism: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, 455 D.L.R. (4th) 1, at para. 50. Canadian federalism jurisprudence supports the principle that a subject matter can have both federal and provincial aspects and, in such a case, the double aspect doctrine permits a province to legislate in pursuit of a valid provincial objective and Parliament to do the same in pursuit of a separate federal objective: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 114.

[111] One reason Canadian constitutional jurisprudence uses such a flexible approach lies in the practical difficulty in identifying the “matter” of a statute. The late Professor Peter W. Hogg described the problem in the following way in Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters, 2007), at §15.5(a):

The difficulty in identifying the “matter” of a statute is that many statutes have one feature (or aspect) which comes within a provincial head of power and another which comes within a federal head of power. Clearly, the selection of one or the other feature as the “matter” of the statute will dispose of the case; equally clearly, the court in making its selection will be conscious of the ultimate result which is thereby dictated. ... How does the court make the crucial choice? Logic offers no solution: the law has both the relevant qualities and there is no logical basis for preferring one over the other. What the courts do in cases of this kind is to make a judgment as to which is the most important feature of the law and to characterize the law by that feature: that dominant feature is the “pith and substance” or “matter” of the law; the other feature is merely incidental, irrelevant for constitutional purposes. [Footnote omitted.]

[112] In the Greenhouse Gas References, the majority of the Supreme Court detailed the elements of this approach, at paras. 51-56:

(i) At the first stage of the division of powers analysis, a court must consider the purpose and effects of the challenged statute or provision in order to identify its “pith and substance”, true subject matter, or what the law in fact is “all about”. The court does so with a view to identifying the statute’s or provision’s main thrust, or dominant or most important characteristic;

(ii) The pith and substance of a challenged statute or provision must be described as precisely as possible, but precision should not be confused with narrowness. Instead, the pith and substance of a challenged statute or provision should capture the law’s essential character in terms that are as precise as the law will allow;

(iii) It is permissible in some circumstances for a court to include the legislative choice of means in the definition of a statute’s pith and substance, as long as it does not lose sight of the fact that the goal of the analysis is to identify the true subject matter of the challenged statute or provision;

(iv) To determine the purpose of the challenged statute or provision, the court can consider both intrinsic evidence, such as the legislation’s preamble or purpose clauses, and extrinsic evidence, such as Hansard records or minutes of parliamentary committees;

(v) In considering the effects of the challenged legislation, the court can consider both the legal effects – those that flow directly from the provisions of the statute itself – and the practical effects, the “side” effects that flow from the application of the statute;

(vi) The characterization process is not technical or formalistic. A court can look at the background and circumstances of a statute’s enactment as well as at the words used in it; and

(vii) Finally, the characterization and classification stages of the division of powers analysis must be kept distinct. The pith and substance of a statute or a provision must be identified without regard to the heads of legislative competence.

D. THE CHARACTERIZATION OF THE MATTER

[113] What, then, are the purpose and effects of CLRA s. 40(3): its pith and substance or true subject matter? What is the provision’s main thrust, or dominant or most important characteristic? What is the section “all about”?

The statutory scheme in which CLRA s. 40(3) is embedded

[114] Section 40 falls within Part III of the CLRA, which deals with decision-making responsibility, parenting time, contact, and guardianship, the first three items being the new statutory labels for what used to be called custody and access. The purposes of Part III are set out in CLRA s. 19 which, to repeat what is set out in para. 42 above, states:

19 The purposes of this Part are,

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.

[115] Part III legislates with respect to a broad range of issues relating to the making of parenting and contact orders. Some of its provisions address whether an Ontario court can or should exercise jurisdiction to make a parenting or contact order (ss. 22, 23, and 25). Others concern the making, enforcement, and variation of parenting or contact orders, including the statutory requirement only to take into account the best interests of the child when making a parenting or contact order (s. 24). Yet other sections deal with “extra-provincial matters”.

[116] The provisions collected under the heading Decision-Making Responsibility, Parenting Time and Contact — Extra-Provincial Matters (ss. 40 to 46) provide two mechanisms by which to achieve the purposes enunciated in s. 19 – specifically, those of discouraging child abduction and refraining from exercising jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in a place other than Ontario with which the child has a closer connection.

[117] The first mechanism is the incorporation of the provisions of the Hague Convention into the law of Ontario: CLRA, s. 46(2). Under the Hague Convention, where a child has been wrongfully removed from a contracting state and brought to Ontario by one parent, the other parent may apply for the return of the child to the contracting state: CLRA, s. 46(5); Hague Convention arts. 3, 12, 29. Where certain conditions are satisfied and certain exceptions do not apply, Article 12 requires a court to order forthwith the return of a child who has been wrongfully removed or retained.

[118] The second mechanism involves CLRA s. 40 which states:

Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim parenting order or contact order as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[119] Section 40 applies to both domestic and international situations: where a child has been wrongfully removed to Ontario from another jurisdiction in Canada and where a child has been wrongfully removed from a state that is not a contracting party to the Hague Convention and brought to Ontario.

[120] In Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, leave to appeal refused, [2020] S.C.C.A. No. 193, this court observed, at paras. 34 and 69, that a court is able to exercise a broader range of discretionary powers under CLRA s. 40 than under the Hague Convention. CLRA s. 40(3) sets out one such power; it authorizes a court to order a party to return the child to such place as the court considers appropriate if the court is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario. Section 40(3) is the target of the mother’s constitutional challenges in this case.

[121] The different procedures under the Hague Convention and provincial legislation, such as CLRA s. 40, for securing the return of a child wrongfully removed or retained operate independently of each other: Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551, at p. 603; Geliedan, at paras. 30-33. Nevertheless, as a practical matter, where the provisions of provincial legislation such as CLRA s. 40, are engaged, “[it] may not be improper to look at the Convention in determining the attitude that should be taken by the courts, since the legislature's adoption of the Convention is indicative of the legislature's judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence: Thomson, p. 603.

The purpose of a return order

[122] The purpose of a return order under the Hague Convention has been described by the Supreme Court in two cases: Thomson and Balev.

[123] In Thomson, the court stated that the Hague Convention seeks to enforce custody rights and protect children internationally from the harmful effects of their wrongful removal or retention by providing procedures to return children promptly to the situation they were in immediately before their wrongful removal: Thomson, at pp. 578-79. The harm that the Hague Convention seeks to prevent was also summarized in Balev, at para. 23:

The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.

[124] The harms to a child from a wrongful removal or retention were further described by this court in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 16: “Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child”: see also, M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at para. 38, leave to appeal refused, [2020] S.C.C.A. No. 402.

[125] In Balev, the court stated that the prompt return of wrongfully removed or retained children serves three purposes: (i) it protects against the harmful effects of wrongful removal or retention; (ii) it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody; (iii) finally, it is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child's habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: at paras. 25-27.

[126] Against this background, the court in Balev went on to describe, at para. 24, the nature of a return order made under the Hague Convention:

The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.

[127] A return order made under CLRA s. 40(3) shares the same purpose as one made under the Hague Convention. The Preamble of the Hague Convention and CLRA s. 19 display a commonality of purpose. The Preamble expresses the desire “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.” On its part, s. 19 of the CLRA seeks “to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process” and to ensure Ontario courts refrain from exercising jurisdiction where a more appropriate forum exists in which to determine decision-making responsibility.

[128] In M.A.A., this court recognized the commonality of purpose of return orders made under the Hague Convention and CLRA s. 40, stating, at para. 38: “With respect to non-signatory countries, the CLRA applies and reflects the Hague Convention’s goals of discouraging child abductions by confining Ontario jurisdiction over custody to limited circumstances.”

[129] In Kovacs, a Hague Convention case, Ferrier J. noted the common purposes of the return provisions under the Convention and the CLRA, stating, at paras. 140-41, that “in making an order that a child be returned to its habitual residence without a determination of the custody issue, [the court] is making an order considered to be in the best interests of the welfare of the child”, a jurisdiction that clearly is one of provincial power. See also: Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para. 37, quoted above at para. 57.

[130] This commonality of purpose was also recognized by Professor Nicholas Bala in his article, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 Can Fam LQ 301, at p. 308:

Provincial legislation like Ontario's Children's Law Reform Act adopts a statutory regime for enforcement of custody rights of parents from non-Hague countries that is based on the same basic principles and concepts as apply when there is a wrongful removal or retention of a child to Ontario from a Hague Convention country. Like the Hague Convention, the CLRA is intended to discourage forum shopping and deter international abduction of children, and to avoid exercise of concurrent jurisdiction by Ontario courts where courts of another state have a closer connection to the child.

[131] Accordingly, the nature and purpose of a return order made under CLRA s. 40(3) is the same as one made under the Hague Convention: to protect a child from the harmful effects of their wrongful removal or retention and to return a child wrongfully removed or retained to the jurisdiction which is most appropriate for the determination of custody and access.

The effects of a return order

[132] The mother submits that since a return order can operate to remove a child from Ontario and return him or her to a foreign jurisdiction, the effect of the order is akin to that of a deportation order, in respect of which Parliament has the exclusive power to legislate. I am not persuaded by this submission. A law’s legal effects are discerned from its provisions by asking how the legislation as a whole affects the rights and liabilities of those subject to its terms: Greenhouse Gas References, at para. 70 (citation omitted). The mother’s argument ignores the larger statutory scheme in which CLRA s. 40(3) operates.

[133] Certainly, the effect of a CLRA s. 40(3) return order is to remove a child from Ontario. And certainly the “means” of ordering the return of a child is central to the operation of CLRA s. 40(3).

[134] But, the power of a court to order the return of a child under s. 40(3) is one of several means made available to a court under s. 40, and Part III more broadly, to right a wrong – the wrong consisting of the wrongful removal to or retention of a child in Ontario.

[135] As this court stated in Geliedan, at para. 77, the legislative purposes set out in CLRA s. 19 inform the exercise of the discretion authorized by s. 40. A return order made under CLRA s. 40(3) seeks to achieve the purposes of Part III of the CLRA in several respects.

[136] First, s. 40(3) offers a practical way to thwart unilateral efforts by one parent to change existing custody/decision-making arrangements. CLRA s. 40(3) echoes the “good” sought by a return order under the Hague Convention – namely, that a wrongful removal often harms a child and it is in the interests of the child to have custody issues determined by the place with the closest connection to the child. The nature of the remedy granted by s. 40(3) – the return of a child from Ontario to another jurisdiction – reflects the nature of the wrong committed by one parent: the wrongful removal of the child to Ontario. If an Ontario court cannot order the “good” of a child’s return to alleviate the harm of his or her wrongful removal, then Ontario risks becoming a haven for child abductors, hardly a constitutionally worthy goal.

[137] Relatedly, CLRA s. 40(3) seeks to preserve the status quo regarding the respective custody rights of the child’s parents and provides a mechanism to return a child to the place most appropriate for the determination of the parental custody issues, a “good” which is also in the child’s best interests.

[138] Further, the making of a return order under s. 40(3) is the culmination of a judicial inquiry into the interests of a child who has been wrongfully removed to and retained in Ontario. As a practical matter, the provisions of s. 40, including s. 40(3), must be read and understood in the context of the larger statutory scheme that includes CLRA ss. 22 and 23. That is because typically non-Hague Convention proceedings for the return of a child to another country involve competing legal claims by the parents, with one seeking the return of the child and the other usually seeking a custody order: see, for example, Ojeikere; M.A.A.[1] Such competing claims bring into play the issue of whether the Ontario court has the jurisdiction to make a parenting order under CLRA ss. 22(1) or 23. While, broadly speaking, the factors enumerated in CLRA s. 22(1) direct an inquiry into the degree of connection of the child with Ontario, including whether proceedings are pending before a tribunal in another place, those in s. 23 direct an inquiry into the degree of harm a child would suffer if removed from Ontario.

[139] While neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test, as observed by this court in Ojeikere, at para. 16:

[T]he policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

[140] Section 23 also reflects the Legislature’s overriding concern with the children’s best interests: Ojeikere, at para. 17. Under s. 23, an Ontario court must assess the possibility or risk of future harm if the child is removed from Ontario, both in respect of its likelihood and severity: Ojeikere, at para. 62.[2] It is evident from the case law that the holistic assessment of serious harm under CLRA s. 23 enables a court to consider the many factors relevant to a child’s best interests.

[141] Accordingly, an assessment of the effects of CLRA s. 40(3) in the context of Part III of the CLRA legislation as a whole confirms that the provision’s focus is on the welfare of a child and providing a practical mechanism to protect a child against the harmful effects of an international abduction by one parent. CLRA s. 40(3) forms a necessary part of a provincial statutory scheme that seeks to protect a child from the harmful effects of their wrongful removal or retention.

[142] I therefore conclude that the true subject matter of CLRA s. 40(3) is to enforce custody rights (decision-making responsibility/parenting time) and prevent harm to a child. The provision achieves these “matters” by authorizing an Ontario court to return a child who has been wrongfully removed to Ontario or wrongfully retained in Ontario to “such place as the court considers appropriate” which, in turn, will enable the custody of the child to be determined by the state that has the closer connection to the child.

The decision in McKee v. McKee

[143] The decision in McKee, on which the mother so strongly relies in support of her federalism challenge to CLRA s. 40(3), does not alter that conclusion. As I read McKee, the case does not support the mother’s argument for exclusive federal jurisdiction over the return of wrongfully removed or retained children; on the contrary, it supports the father’s division of powers submission.

[144] McKee involved a mother and father who were both citizens of the United States and domiciled there. Shortly before their separation, their son was born. Both parties then participated in custody and divorce proceedings in California. Following a trial in 1942, the California court awarded the father custody of the child, with the son to spend three months each summer with his mother. In 1945, the father applied to modify the mother’s access; the mother cross-claimed. After a further trial, custody was awarded to the mother. The father brought review proceedings, which ultimately were dismissed in the mother’s favour. Before they were, the father took the child from his residence in Michigan across the border into Ontario. The father stated he intended to make Ontario their new place of residence.

[145] The mother obtained a writ of habeas corpus from an Ontario court. On the return of the writ, a judge directed a trial of the custody issue. The trial judge took into account the more recent California orders giving custody to the mother but concluded that it was in the best interests of the child to give the father custody. This court dismissed the mother’s appeal. A majority of the Supreme Court of Canada reversed the trial judge. On further appeal, the Judicial Committee of the Privy Council (“JCPC”) set aside the decision of the Supreme Court of Canada and restored the trial judgment.

[146] The majority of the Supreme Court of Canada took issue with the judge on the return of the habeas corpus writ directing a trial of the custody issue. The circumstances that most heavily influenced the majority were: the parents were U.S. citizens; they lived in the U.S.; the custody litigation took place in the California courts; both had entered into an agreement not to take the child outside of the U.S. without the consent of the other; yet the father took the child to Ontario “in the final moments of a protracted litigation in his own country for the purpose of avoiding obedience to the judgment of its Courts, and in deliberate disregard of his own agreement”: McKee (SCC), at p. 709. The majority concluded that, on the return of the writ, the judge “should have directed that the child be delivered into the custody of the [mother] on her undertaking to return with him to her home in the United States”: McKee (SCC), at p. 710. The majority made an order to that effect, which included a provision that the mother have custody of the child.

[147] In our case, the mother relies heavily on the dissenting reasons authored by Kellock J. The minority saw no error in the procedure adopted by the judge on the return of the habeas corpus writ: given the child’s presence in Ontario, the court had to consider the child’s best interests. The minority stated, at p. 720, that no jurisdiction existed for the majority to make the order that it did, which would return the child to the United States without an inquiry into his best interests:

That which is involved in the present case is a matter of custody. The appellant, under the guise of custody proceedings, asks for an order for which there is no authority outside the Extradition Act or the deportation provisions of the Immigration Act. Even if it could be said that such authority resides in the executive, it has not been committed to the courts, Attorney-General for Canada v. Cain. In my respectful opinion, there is no jurisdiction in the courts of Ontario or in this court to make such an order as the [mother] seeks or to do otherwise than to apply to the circumstances of this case, the ordinary law of Ontario as to custody, giving due weight, of course, to the California decree. [Emphasis added.]

[148] At the time of the McKee case, The Infants Act, R.S.O. 1937, c. 215, did not contain any provision analogous to CLRA s. 40. As I read the dissent of Kellock J., the minority was simply observing that, at that time, no authority had been given to the courts to make the return order sought by the mother.

[149] The JCPC reversed the decision of the Supreme Court and restored the trial judge’s award of custody to the father. As there was no dispute that the trial judge had jurisdiction to entertain the question of custody that had been referred to him, he did not need to “blindly follow an order made by a foreign [c]ourt” but, as part of his best interests analysis, could give “proper weight to the foreign judgment”: McKee (JCPC), at pp. 664-65. Consequently, the trial judge did not commit any error.

[150] The JCPC allowed that, in some circumstances, an Ontario court might not need to look beyond the foreign judgment to conduct its own custody analysis, stating, at pp. 664-65:

It is possible that a case might arise in which it appeared to a Court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further enquiry. … Once it is conceded that the Court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign Court, the consequence cannot be escaped that it must form an independent judgment upon the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend upon the circumstances of each case. It may be that, if the matter comes before the Court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the Court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant. [Emphasis added.]

[151] Taking a step back, McKee does not stand for the proposition asserted by the mother that an Ontario court lacks the jurisdiction to make an order requiring a child to be returned to another country because the subject matter of such an order falls within exclusive federal jurisdiction under the Constitution Act, 1867. On the contrary, the decision of the JCPC recognized that an Ontario court could make such an order provided it applied the law of Ontario as it then stood – namely, conducting a best interests of the child analysis while deciding which parent should have custody of the child.

E. THE CLASSIFICATION OF THE MATTER

[152] The second stage of a division of powers review requires classifying the subject matter with reference to federal and provincial heads of power under the Constitution in order to determine whether it is intra vires of Ontario and therefore valid: Greenhouse Gas References, at paras. 47, 56.

[153] Under Canadian jurisprudence, the constitutional authority to legislate with respect to child custody and welfare (save for corollary relief orders under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)) is firmly anchored in the provinces, particularly the provincial legislative power under s. 92(13) of the Constitution Act, 1867 regarding “property and civil rights in the province”: Hogg, at §27.5(a); NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696, at para. 45; R. v. S. (S.), at p. 279.

[154] As the subject matter of a CLRA s. 40(3) removal order involves the enforcement of custody rights, protecting a child from the harm of a wrongful removal, and ensuring that the custody of a child is determined by the most appropriate state, it falls within the established provincial power to legislate with respect to child custody and welfare as a matter of “property and civil rights in the province”. Accordingly, CLRA s. 40(3) is intra vires of the Legislature of Ontario.

F. CONCLUSION

[155] Although the trial judge, at para. 455, purported to follow Kovacs in finding CLRA s. 40(3) intra vires of Ontario, in fact the comments made in Kovacs about the vires of s. 40 were obiter as the issues raised in that case did not directly engage CLRA s. 40. Nevertheless, the trial judge went on to hold, at paras. 456 and 463, that CLRA s. 40(3) “is all about the return of children to a place (in this case, Dubai) that they are most closely connected to, for a determination of custody issues in that place, provided no serious harm will result” and that the section falls within Ontario’s lawful authority to legislate matters of child welfare and family law.

[156] For the reasons given, I see no error in that conclusion. CLRA s. 40(3) is intra vires the legislative power of Ontario. Accordingly, I would give no effect to this ground of appeal by the mother.

III. THE CHARTER CLAIMS

A. OVERVIEW

[157] In her Fresh as Amended Answer, the mother seeks an order that CLRA s. 40(3) breaches the following constitutional rights of herself and the two children: Charter ss. 2(a); 7; and 15. As well, the mother advances a s. 6(1) claim with regard to the children only and seeks an order, if necessary, to bring Charter claims on their behalf. Common to all these Charter breach allegations is the argument that any return order made under CLRA s. 40(3) “without a full best-interests determination in the ordinary course” (emphasis in original), is constitutionally infirm and therefore has the effect of breaching the enumerated Charter rights.

[158] At trial, the father argued that the mother had failed to establish a sufficient factual foundation for her Charter claims; the trial judge rejected that submission. However, in the result, the trial judge dismissed the Charter claims advanced by the mother. I will describe his reasons for so doing when dealing with each Charter breach allegation.

[159] An assessment of the mother’s Charter claims requires understanding the order made by the trial judge exercising the power granted by CLRA s. 40(3). The trial judge made the following orders:

(i) The mother has wrongfully retained the children in Ontario;

(ii) The children shall forthwith be returned to Dubai;

(iii) If the mother does not return to Dubai, the children shall forthwith be in the father’s “care and control for the limited purpose of the children being able to travel with him to Dubai”;

(iv) The consent of the mother for the father to travel with the children for such purposes is dispensed with;

(v) The mother shall deliver to the father the children’s travel documentation and medical records; and

(vi) The mother is prohibited from removing the children from Ontario except for the purpose of returning them to Dubai.

[160] Before dealing with each Charter claim, I wish to make a few preliminary observations.

[161] First, the parties did not provide extensive argument in respect of the mother’s Charter claims. Both devoted just over the last two pages of their factums to the Charter claims; more extensive written submissions were made by the intervenors, the AGO and the Office of the Children’s Lawyer (“OCL”). Given that this appears to be the first Charter-based challenge to CLRA s. 40(3), the brevity of the parties’ submissions is most unfortunate.

[162] Second, some of the mother’s Charter claims lack precision; some shifted their focus as the argument unfolded before the trial judge; and some shifted their content from the notice of appeal to the mother’s factum. In order to gain a fulsome understanding of the nature of the mother’s Charter claims, I have considered several of her documents: (i) the Fresh as Amended Answer; (ii) Factum of the Respondent re: Constitutional Claim filed before the trial judge; (iii) the Notice of Appeal; and (iv) her Factum on this appeal.

[163] Finally, on this appeal the father takes the position that if CLRA s. 40(3) falls within the legislative competence of Ontario, then judicial orders made under that provision are not subject to Charter scrutiny. I disagree. I would observe that just because a statutory provision falls within the legislative competence of Ontario under a division of powers analysis does not mean it is immunized from further review regarding its compliance with the Charter. Further, I understand the mother to be arguing that CLRA s. 40(3) authorizes conduct that produces an unconstitutional effect. In other words, the statutory provision, by authorizing a court to make an order to return a child to such place as the court considers appropriate, legislatively sanctions conduct that has the effect of violating the Charter rights of the mother and two children given the factual circumstances in which the mother and children find themselves[3]. My analysis will proceed on that basis.

B. Charter S. 7 Claim

The proceeding below

[164] Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[165] The trial judge concluded that a return order made under the authority of CLRA s. 40(3) would not result in an infringement of the s. 7 Charter rights of the mother and children for several reasons:

(i) A return order is not a custody order and therefore it does not result in the loss of any legal rights by the mother;

(ii) Any breaking of the bond between the mother and her children, and the resulting psychological effect, would result from her decision to choose not to return to Dubai;

(iii) Although CLRA s. 40(3) does not expressly require a consideration of the “best interests of the child”, no constitutionally infirm deprivation would result as the “best interests of the child” is not a principle of fundamental justice;

(iv) In any event, the evidence established that in determining the custody of the children, the best interests of the children would be the paramount consideration of a court in Dubai; and

(v) CLRA s. 40(3) did not result in a process that lacked procedural fairness as a full-blown trial was held to determine the application for a return order.

Issues on appeal

[166] As I understand the s. 7 Charter claims advanced by the mother on behalf of herself and the two children, the following issues are raised on this appeal:

(i) Did the trial judge err in concluding that an order made under CLRA s. 40(3) did not engage the rights of the mother and children to security of the person under s. 7 of the Charter?

(ii) Did the trial judge err in concluding that the absence of an express requirement in CLRA s. 40(3) that a court conduct a “full blown best interests of the child analysis” in making a removal order did not infringe s. 7 of the Charter?

(iii) Does a CLRA s. 40(3) removal order’s effect of requiring the mother to litigate custody issues in the UAE (Dubai) deny her a constitutionally protected right to access to justice in Ontario?

[167] It is understandable that the mother is not pursuing the additional s. 7 claim described in her Fresh as Amended Answer that CLRA s. 40(3) infringed s. 7 by not prescribing a hearing process akin to an “ordinary course” custody hearing. An 11-day hearing was held to adjudicate the parties’ respective claims, with each party able to adduce evidence, test evidence by way of cross-examination, and make full legal submissions. The mother received a hearing that fully accorded with the procedural principles of fundamental justice.

Analysis

First Issue: Did the trial judge err in concluding that an order made under CLRA s. 40(3) did not engage the rights of the mother and children to security of the person under Charter s. 7?

[168] In her factum below, the mother described herself as the children’s “psychological parent”. She explained the intrusion on her security of the person that would result from the operation of CLRA s. 40(3):

Under CLRA s. 40 the state (the court) is determining whether to remove custody of the child from the mother. In this case, that state-imposed change of custody carries the substantial risk of permanently breaking the bond between the psychological parent and children. [Emphasis added.]

[169] The trial judge did not accept this submission. Relying on Balev, he properly held that a return order made under CLRA s. 40(3) is not a custody order. He concluded that if the mother chose not to return to Dubai, then any breaking of the bond between the children and her would not be caused by the operation of CLRA s. 40 but by her own choice.

[170] On appeal, the mother repeats her argument that an order removing a child from their primary caregiver breaches s. 7.

[171] State action that has “a serious and profound effect on a person’s psychological integrity”, assessed objectively, may amount to an interference with the person’s security of the person for purposes of s. 7 of the Charter: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, at para. 60. As Hamish Stewart observes in Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 2nd ed. (Toronto: Irwin Law, 2019), at p. 103, the G. (J.) case set a threshold for finding interference with psychological integrity that is both objective and high.

[172] The case of G. (J.) involved, in part, the extension of an order that had granted custody of the appellant’s children to a provincial child welfare agency. The majority of the Supreme Court held that “state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent” because it stigmatizes a parent as “unfit” when relieved of custody, thereby interfering with the psychological integrity of the parent qua parent: at paras. 61, 64.

[173] In A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, at para. 98, this court recognized that a refugee child’s s. 7 Charter rights are engaged where the child’s involuntary removal is sought under the Hague Convention “to a country where the child has already been found to face a risk of persecution”: see also, J.P.B. v. C.B., 2016 ONCA 996, 2 R.F.L. (8th) 48, at para. 25.

[174] In the present case, the children are quite young (both under five years old). They are not refugees. The trial judge found that the mother had always been their primary caregiver and there was some circumstantial evidence that the children could be at risk of emotional and psychological harm if they are returned to Dubai without their mother. That said, the mother predicated this part of her s. 7 argument on the proposition that a CLRA s. 40(3) return order would amount to a change of her custodial rights, which is incorrect. The purpose of a return order is to restore the status quo in respect of custodial rights of the parents and requires them to litigate the issue of custody in a forum more appropriate than Ontario.

[175] As well, I think the trial judge was correct in concluding that any psychological harm that might arise on the part of the mother or the children would result from the mother’s refusal to return to Dubai with the children, not from any state conduct flowing from CLRA s. 40(3). The mother was quite clear in her evidence that she would not return to Dubai, testifying:

[F]irst of all and before anything else, the -- the reason for the separation was because [the children] deserve a happy mom and deserve a mom, a parent who is happy, and so I don’t see the possibility of that happening if I am -- if I am to go back.

[176] In Ojeikere, this court expressed concern about permitting an abducting parent to create a risk of psychological harm by refusing to return to the place from which the children were removed, stating, at para. 91, in the context of its CLRA s. 23 serious harm analysis:

Mr. Ojeikere argues that by professing to stay in Ontario and separating herself from the children, Mrs. Ojeikere is manipulating them and, by her stance alone, trying to establish serious harm. I have some sympathy for his argument. Ordinarily, a parent in Mrs. Ojeikere’s position ought not to be able to create serious harm and then rely on it through her own refusal to return to the country of the children’s habitual residence – at least without a substantial reason for doing so, such as the risk of imprisonment or persecution, risk to health or physical safety, or the risk of a significant obstacle to employment. [Emphasis added.]

[177] Nonetheless, I will proceed to consider the mother’s s. 7 arguments assuming that the exercise of the authority granted by CLRA s. 40(3) engaged the security of the person of both herself and the two children.

Second Issue: Did the trial judge err in concluding that the absence of an express requirement in CLRA s. 40(3) that a court conduct a “full blown best interests of the child analysis” in making a removal order did not infringe s. 7 of the Charter?

[178] It is true that CLRA s. 40(3) does not contain an express reference to “best interests of the child”. It is also true that the purpose articulated in CLRA s. 19(a) of ensuring “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” does not formally include return orders under CLRA ss. 40(3) or 46 where no order is made with respect to decision-making responsibility or parenting time.

[179] Nevertheless, since Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, it has been well-established that serious consideration must be given “to the best interests of children when exercising discretionary powers that may affect them”: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 146. In such cases, a decision-maker must consider a child’s best interests as an important factor and give them substantial weight: Baker, at para. 75.

[180] However, as the Supreme Court observed in M.M., the best interests of the child will not always outweigh other considerations, stating in part, at para. 145:

[T]he best interests of children on surrender for extradition must be considered in light of other important legal principles and the facts of the individual case: Fischbacher, at paras. 37-38. As the Court said in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, “the legal principle of the ‘best interests of the child’ may be subordinated to other concerns in appropriate contexts”; its application “is inevitably highly contextual”; and “[s]ociety does not always deem it essential that the ‘best interests of the child’ trump all other concerns in the administration of justice”: paras. 10-11.

See also: A.M.R.I., at para. 82.

[181] How do those principles apply to the order-making power created by CLRA s. 40(3)? In my view, since the orders authorized by that statutory provision obviously will affect children, a court must include, as part of its exercise of discretion under that section, a consideration of the best interests of the child.

[182] The mother contends that any consideration of the best interests of the child under CLRA s. 40(3) must be performed in the same way as when determining custody (decision-making responsibility/parenting time) under CLRA s. 24, namely that, “the court shall only take into account the best interests of the child” (emphasis added).

[183] I disagree. That is not the law in respect of applications under the Hague Convention, where the consideration of the interests of the children is not done in the manner the court would do at a custody hearing because a return order does not determine custody: Thomson, at p. 578; Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 64.

[184] So, too, in the case of a CLRA s. 40(3) return order. Both the scope of a best interests inquiry and the role played by a best interests inquiry under s. 40(3) differ from that when determining custody under s. 24. That is because the scope and role of the inquiry must be commensurate with the purposes of the s. 40(3) analysis, which differ from those under s. 24.

[185] The scope of the analysis under CLRA s. 40(3) does not decide the ultimate issue of custody of the children but the narrower, preliminary issue of the jurisdiction in which custody should be determined.

[186] As well, under s. 24 the best interests of the child is the only factor a court may take into account. However, to fulfill the purposes set out in CLRA s. 19, a court making a return order under CLRA s. 40(3) must consider not only the best interests of the child but also s. 19’s policy objectives – namely, discouraging the abduction of children as an alternative to the determination of decision-making responsibility by due process, as well as refraining from exercising jurisdiction in cases where it is more appropriate for the matter to be determined by another tribunal (one that has jurisdiction and with which the child has a closer connection). A holistic analysis of those three factors is required in order that the statutory discretion granted by s. 40(3) fulfills the purposes of Part III of the CLRA.

[187] This differing application of the best interests of the child test under CLRA ss. 40(3) and 24 reflects the “inherent indeterminacy and elasticity” of the test: MacGyver v. Richards (1995), 1995 8886 (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 15. As put by Abella J.A. (as she then was), the test “can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child's best interests”: MacGyver,at p. 15. At this point of time in the lives of these two children, their immediate legal interests concern where the issue of their custody should be determined, not who should have custody. The best interests test must be applied in that context.

[188] Moreover, the statutory scheme of which CLRA s. 40(3) forms a part offers a procedurally fair mechanism, which accords with principles of fundamental justice, by which a court can consider any risk of harm to the children, including the impact of a separation from a parent and/or primary caregiver.

[189] Reading the reasons of the trial judge as a whole, I am satisfied he performed the multi-factored analysis required by CLRA s. 40(3). He made specific findings of fact regarding the interests of the children: about the relationship between the children and both parents and the potential impact of a return order on the children; the adequacy of evidence of the best interests of the children available in Ontario; the potential risk of harm to the children if returned to Dubai; that the settlement proposed by the father, if accepted by the mother, would be incorporated in a Dubai judgment;^[4] and that the best interests of the children would be the paramount consideration in determining custody in a court in Dubai: at paras. 291, 294, 347, and 366.

[190] The trial judge also correctly recognized that a return order under CLRA s. 40(3) is not the same as a custody order. Finally, the trial judge specifically found, at several places in his reasons, that the return of the children to Dubai was in their best interests: at paras. 387, 390, and 460-61.

[191] Consequently, I would not give effect to this ground of appeal by the mother.

Third Issue: Does the removal order’s effect of requiring the mother to litigate issues concerning the children’s custody in the UAE deny her a constitutionally protected right to access to justice?

[192] In her appeal factum, the mother submits that “being forced through the UAE legal system amounts to a denial of her constitutionally protected right to access to justice.” She elaborated on this argument in her factum before the trial judge, stating in part, at paras. 88 and 90:

The [mother’s] access to justice in Dubai is impaired. Neither the Mother, or children, will receive constitutionally-minimum legal treatment in Dubai. The Charter requires that the foreign legal system afford constitutionally-minimum legal treatment, assessed from a purely Canadian standard, or the Canadian ‘jurisdiction’ decision will ipso facto, reject handing a matter over to that foreign legal system.

The effect of the return Order is a change of primary residence and a separation of the child from the primary parent, ordered in the absence of a full best-interests determination in the ordinary course. Such effects are an unconstitutional infringement of the independent constitutional right of primary parent and each applicant child under s.2 and s.7. [Emphasis in original.]

[193] In support of this submission, the mother relies on the concurring reasons of Brown J. in Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, a case dealing with the enforceability of an arbitration clause in a contract of adhesion that would require an Ontario Uber driver to resolve any dispute with Uber through mediation and arbitration in the Netherlands.

[194] The majority of the court concluded that the arbitration agreement made it impossible for the driver to arbitrate, thereby constituting a classic case of unconscionability that invalidated an arbitration agreement: at para. 4.

[195] While agreeing that the arbitration agreement was invalid, Brown J. was not prepared to rely on the doctrine of unconscionability to reach that result. Instead, he anchored his analysis on the principle that precludes the ouster of court jurisdiction, either directly or through a clause that has the ultimate effect of blocking access to a legally determined resolution: at paras. 110, 113. It was in that context that Brown J. made the following statements, at para. 120, upon which the mother relies:

[A]ccess to justice is constitutionally protected through s. 96 of the Constitution Act, 1867, which limits the legislature’s ability to place restrictions on dispute resolution (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43). As this Court stated in Trial Lawyers, at para. 32:

The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. [Emphasis added in Uber.]

[196] I do not see how this passage from Uber assists the mother’s s. 7 argument. First, s. 7 of the Charter was not in issue in the Uber case; the Supreme Court made no comment on the section. Second, CLRA s. 40(3) has not denied the mother access to a s. 96 court: the mother asserted claims and defences in her Fresh as Amended Answer, and her evidence and submissions were considered by a s. 96 judge. Third, the claims and counterclaims raised by the father and mother in this proceeding constitute the type of issue frequently considered by a s. 96 court: namely, which jurisdiction is the most appropriate in which to decide the merits of the case?

[197] Quite apart from the mother’s misplaced reliance on the Uber decision, I see no merit in her other submissions. The return order does not change the children’s primary residence. On the contrary, it seeks to restore the status quo of the children’s residence before the mother engaged in her wrongful conduct.

[198] Finally, the mother does not point to authority to support her submission that “[t]he Charter requires that the foreign legal system afford constitutionally-minimum legal treatment, assessed from a purely Canadian standard”. Many foreign countries do not share the same family law as Ontario. That does not preclude a court from considering a request under CLRA s. 40(3) to return a child to such a country. Of course, when considering such a request, Part III of the CLRA requires a court to examine the effects of returning a child to such a country. That is precisely the analysis the trial judge conducted. Significantly, he found, at para. 366(vi), that:

[T]here is a total absence of any reliable evidence at trial that the court system in Dubai will do anything other than (a) determine custody in accordance with the best interests of Z. and E., if contested, and (b) award custody to F., if contested, and (c) approve the settlement proposal tendered by N., if agreed to by the mother. [Emphasis in original.]

[199] Consequently, I give no effect to this part of the mother’s s. 7 claim.

Conclusion on s. 7 claims

[200] The trial judge dismissed the s. 7 claims by the mother and on behalf of the children. For the reasons set out above, I see no error in that result.

C. CHARTER S. 2(a) CLAIM

Analysis

[201] Section 2(a) of the Charter provides that everyone has the fundamental “freedom of conscience and religion”. The standard claim that state conduct has infringed a person’s s. 2(a) freedom requires a claimant to demonstrate that (i) she has a sincere belief or practice that has a nexus with religion and (ii) that the impugned state conduct interferes, in a manner that is more than trivial or insubstantial, with his or her ability to act in accordance with that practice or belief: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 32.

[202] The mother has not asserted a standard s. 2(a) claim, which is not surprising given the facts of this case. In respect of her own s. 2(a) right, the mother has made it clear that she does not intend to return to Dubai, so any CLRA s. 40(3) return order would not limit her ability to practise her faith in Canada. As to the children, the evidence is uncontroverted that upon their return to Dubai, they will continue to be raised in their parent’s Shia faith, so the return order works no limit on their instruction in that faith.

[203] The mother fashions a s. 2(a) claim predicated on her return to Dubai which, as mentioned, is completely at odds with her evidence that she will not return to Dubai. In any event, the mother recasts her s. 7 claim as a s. 2(a) claim to argue that a return order breaches her right as the children’s primary caregiver “to raise the children according to her decision-making, a right that would be unambiguously denied to her under UAE law” (emphasis in original). The factual findings made by the trial judge undermine the claim so framed. I repeat the findings made by the trial judge, at para. 366(vi) of his reasons:

[T]here is a total absence of any reliable evidence at trial that the court system in Dubai will do anything other than (a) determine custody in accordance with the best interests of Z. and E., if contested, and (b) award custody to F., if contested, and (c) approve the settlement proposal tendered by N., if agreed to by the mother. [Emphasis in original.]

[204] In addition, the trial judge made the following findings, at paras. 368-69:

Further, even if I did believe [the mother’s] evidence about not returning to Dubai, I do not accept her evidence about how allegedly miserable her life in Dubai was. I do believe that she was unhappy in her marriage, but that marriage will be over now. She deserves to be happy and fulfilled and respected, and that will not happen with N.

Otherwise, however, regarding her evidence about religious discrimination and social isolation and so on, I reject it. [Emphasis added.]

[205] The mother has not demonstrated that those findings of fact were tainted by palpable and overriding error. Accordingly, I see no error in the trial judge’s dismissal of the s. 2(a) claims advanced by the mother.

D. CHARTER S. 15(1) CLAIM

The proceeding below

[206] Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” At trial, the mother framed her s. 15(1) claim in two different ways.

[207] First, in her Fresh as Amended Answer, she argued that CLRA s. 40(3) authorized state action that removed the custody of a child from a psychological parent without affording a best interests of the child hearing in the ordinary course. As I understand this argument, the mother contrasts (a) the treatment of a parent who is found to have wrongfully removed a child from another jurisdiction to Ontario with (b) the treatment of two Ontario resident parents who are disputing custody of a child. In the latter case, the determination of custody is subject only to a best interests of the child analysis, whereas in her case it is not.

[208] Second, the mother reframed the argument in a slightly different fashion in her factum below:

The offensive state conduct is the act of forcibly ‘returning’ a Canadian citizen from Ontario to Dubai, pursuant to a CLRA s. 40 change of custody from Mother to Father, where that change of custody is done without a best interests custody analysis.

Every other child in Canada, who is not part of this discrete and insular minority (of children coming from non-democratic sharia law countries), is unharmed, both legally and in fact, by the application of the CLRA s.40 ‘wrongfully retained’ test to change their custody and remove them from Ontario. This is because, every other child, when being removed from Ontario, pursuant to CLRA s.40, goes to a geographic location where best interests will then be applied to determine their fate. This does not happen in Dubai or any other non-democratic sharia law country. This is disproportionate impact. This adverse impact of a facially neutral law, infringes the applicants’ right to all the equalities under s 15 of the Charter. [Emphasis added.]

[209] This reframed argument contends that a disparate impact arises from both the operation of Ontario law – i.e., the failure to consider the best interests of the children in a CLRA s. 40(3) analysis – and from the law of the country to which the children are returned.

[210] During final argument at trial, the mother attempted to further recast her s. 15(1) claim. Her counsel argued that CLRA s. 40 impacts the mother as a woman differently than a man who comes under the same provision and has disproportionate impacts with respect to a woman than with respect to a man. The father objected to the mother raising a new claim at the end of trial based on the enumerated ground of sex; the trial judge upheld that objection.

[211] The trial judge dismissed the mother’s s. 15(1) claim largely on the basis that the argument required accepting a person’s place of residence as an analogous ground, which the case law to date has not recognized. The trial judge concluded that the mother had not established that a CLRA s. 40(3) return order discriminated on any enumerated or analogous ground.

The issues on appeal

[212] On appeal, the mother submits that CLRA s. 40(3) has a discriminatory impact on her and the children. She identifies three discriminatory impacts:

(i) As a primary caregiver, she would suffer more of a severe discriminatory legal burden where a child is ordered returned to Dubai than if ordered returned to another province, the United States or England. This differential burden is a disproportionate effect;

(ii) The two children would suffer dramatically more severe impact leaving Ontario to return to Dubai than identically placed children returned to Alberta, Scotland, or the United States; and

(iii) Where the child’s primary caregiver is the mother, a return to Dubai by female results in the loss of badges of custody to the father under UAE law, which a father would not face “if he had to make the decision to follow the infants back to Dubai”, causing a disproportionate impact.

[213] In response, the father submits that the mother’s distinction between children who are habitually resident in Dubai and those resident in another province, the United States, or England, relies on a distinction based upon residence, a ground that courts repeatedly have rejected. The mother’s other argument advances discriminatory impact based on sex, which the trial judge did not permit her to argue. In any event, no evidence or data were advanced at trial to demonstrate that CLRA s. 40(3) disproportionately affects women. Fathers as well as mothers abduct or wrongfully retain children, and s. 40(3) provides an important discretionary tool to protect mothers in such situations.

[214] The AGO also contends that the mother’s claim that the legislation discriminates on the basis of residence fails at the first step of the s. 15 analysis.

Analysis

[215] To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law or state action (i) on its face or in its impact, creates a distinction based on enumerated or analogous grounds and (ii) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at para. 27. In the second step of the analysis, “[t]he goal is to examine the impact of the harm caused to the affected group”, which “may include ‘[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [