Supreme Court of Canada

Appeal Heard: April 12, 2022 Judgment Rendered: December 2, 2022 Docket: 39875

Parties

F. — Appellant

v.

N. — Respondent

— and —

Attorney General of Ontario, Office of the Children's Lawyer, Defence for Children International-Canada and Canadian Council of Muslim Women — Interveners

Indexed as: F. v. N.

2022 SCC 51

File No.: 39875.

2022: April 12; 2022: December 2.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

On appeal from the Court of Appeal for Ontario

Headnote

Family law — Custody — International child abduction — Jurisdiction to make parenting order — Serious harm to child — Best interests of child — Return order — Parties residing in United Arab Emirates with their two children — Mother taking children on trip to Ontario with father's consent but refusing to return — Father seeking order from Ontario court for children's return — Mother requesting that Ontario court exercise jurisdiction to make parenting order on merits — Ontario court declining jurisdiction on basis that it was not satisfied that children would suffer serious harm if removed from Ontario and ordering that children be returned to United Arab Emirates — Whether Ontario court erred in declining jurisdiction and ordering children's return — Children's Law Reform Act, R.S.O. 1990, c. C‑12, ss. 23, 40.

The father and the mother have two children, born in 2016 and 2019. The father is a citizen of Pakistan and has lived in Dubai, in the United Arab Emirates ("UAE"), since 2008. The mother, a citizen of Pakistan and of Canada, moved with her family from Pakistan to Ontario in 2005, and then to Dubai in 2012 when she married the father. The mother does not have an independent residency status in Dubai and has been sponsored by the father throughout their marriage. She is the children's primary caregiver.

In June 2020, the mother travelled to Ontario with the children, leaving Dubai with return air tickets, ostensibly for a trip to visit her family. The father agreed to that trip; however, a few weeks later, the mother informed the father that she intended to stay in Ontario with the children and not return to Dubai. The father initiated proceedings in Ontario, seeking an order under s. 40 of the Children's Law Reform Act ("CLRA") for the return of the children to Dubai. The mother, relying on s. 23 of the CLRA, said that the Ontario court should exercise its jurisdiction to decide custody and access as the children would suffer serious harm if they were returned to Dubai. She claimed that it was in the best interests of the children to remain in Ontario with her. The father replied that the Ontario court should not take up jurisdiction to make a parenting order and that it was in the best interests of the children that all issues of custody and access be decided in the UAE.

Prior to the hearing of the father's application, he presented a settlement offer to the mother in which he undertook to ensure the mother's independent residency in Dubai, in particular, by purchasing property for her in her name. He further undertook that the children would reside primarily with the mother and that major decisions regarding the children would be made jointly.

The Ontario court declined jurisdiction. The trial judge was not satisfied that the children would suffer serious harm if they were removed from Ontario. He declared that the mother had wrongfully retained the children in Ontario and concluded that it was in the best interests of the children to return to Dubai, with or without the mother. He offered all parties the opportunity to make further submissions on whether to include the father's settlement proposal in his order but the mother did not avail herself of this opportunity.

A majority of the Court of Appeal confirmed the return order, but the dissenting judge was of the view that the trial judge had erred in his assessment of serious harm and that the Ontario court should have exercised jurisdiction.

Held (Karakatsanis, Brown, Martin and Jamal JJ. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ.: The trial judge in the instant case committed no reviewable error and his decision that the serious harm threshold was not met is entitled to deference. The custody dispute, which is undecided here, should be resolved by the courts in the UAE, where the children have their closest connection.

The CLRA seeks to discourage child abductions and the wrongful removal and retention of children to Ontario. The statute is based on the premise that, following an abduction, the child's best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence. Therefore, where a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), the CLRA provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection. One exception is set forth in s. 23 of the CLRA: a court can exercise jurisdiction to make a parenting order where a child is physically present in Ontario and, on a balance of probabilities, the court is convinced that the child would suffer serious harm if removed from the province. At the preliminary stage of deciding jurisdiction, it is not the role of the judge to conduct a broad-based best interests inquiry, as they would on the merits of a custody application. A broad‑based best interests analysis under s. 23 would ultimately undermine the purpose of the serious harm exception, that is, to ensure decisions on the merits are made by the appropriate authority in accordance with the best interests of the child.

The onus to prove that the child would suffer serious harm upon return rests on the abducting parent. The burden is demanding and it is not enough to conclude that the return would have a negative impact on the child. It is also not enough to identify a serious risk of harm: the court must be satisfied, on a balance of probabilities, that the harm itself would be serious in nature. Serious harm inquiries are child‑centered and the analysis is highly individualized. The child's age, and where relevant, their special needs and vulnerabilities, may mitigate or aggravate the risk of harm. When conducting their s. 23 analysis, judges should consider both the likelihood and severity of the anticipated harm. The focus is on the particular circumstances of the child, rather than on a general assessment of the society to which they would be sent back. Given the discretionary, individualized and fact‑specific character of the serious harm analysis, a trial judge's findings are owed deference. Appellate courts cannot set aside a trial judge's conclusion on serious harm simply on the basis that they would have weighed the evidence differently.

One relevant question as to the scope of the s. 23 exception is whether separation of a child from their primary caregiver can pose a risk to the child's psychological well‑being rising to the level of serious harm. Separating an infant from their primary caregiver is a circumstance that most certainly can cause psychological harm to the child. But such a separation, in and of itself and without regard to the individualized circumstances, will not always rise to the level of harm required under s. 23 of the CLRA. In order to deter and remedy child abductions effectively, courts should sometimes be prepared to order the return of the children despite a risk of separation from their primary caregiver. Deciding otherwise could allow abducting parents, in some situations, to rely on their status as primary caregivers to circumvent the due process for custody determination and remove the children from the authority of the courts that would normally have jurisdiction. This could ultimately risk making Ontario a haven for child abductions.

When considering risks of harm flowing from separation, courts should recognize that if a child is separated from their primary caregiver, but is nevertheless returned to their capable left‑behind parent and other known caregivers, in a safe and familiar environment, the high threshold of harm may not be met. Courts should also consider all barriers to the return of the primary caregiver. Nevertheless, a parent ought not to be able to create serious harm and then rely on it through their own refusal to return. Courts should carefully scrutinize refusals to return when there is no impediment to the parent re‑entering and remaining in the country of the child's habitual residence. But a primary caregiver's refusal to return will not always be taken to be unjustified. An abducting parent may have legitimate and reasonable reasons for not returning to the foreign country, such as significant obstacles to employment or risks to safety, including evidence showing that the left‑behind parent is responsible for child abuse or intimate partner violence to the primary caregiver.

Another relevant question as to the scope of s. 23 is whether inconsistencies between family law in the foreign jurisdiction and in Ontario should factor in a serious harm analysis. As long as the ultimate question of custody will be determined by the court that has jurisdiction to do so on the basis of the best interests of the child, inconsistencies between local and foreign legal regimes will usually not amount to serious harm. Nonetheless, there may be instances where foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the CLRA.

When a court is satisfied that a child has been wrongfully removed to or is wrongfully retained in Ontario, a return order presented by the left‑behind parent is governed by s. 40 of the CLRA. Judges should consider the best interests of the child in exercising their s. 40 powers. The return order procedure starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. If the evidence is insufficient to establish that Ontario courts should assume jurisdiction, judges should not use their residual s. 40 powers to postpone indefinitely the child's return to the jurisdiction best positioned to decide the case on the merits.

Incorporating undertakings from the parties within a s. 40 return order may effectively facilitate a child's return by providing an answer to an anticipated risk of harm. Even without a risk of serious harm within the meaning of s. 23, undertakings may be in the child's best interests in that they effectively mitigate less consequential or short‑term distress. Problems associated with the enforceability of undertakings before foreign courts are well known. What is required is that the judge who hears the parties is satisfied that the undertakings given are adequate. This assessment is discretionary and must be made in light of the parties' particular circumstances.

In the instant case, the trial judge did not commit a palpable and overriding error when he concluded that the children would not suffer serious harm if they were returned to Dubai. He understood that the separation of children from their primary caregiver typically gives rise to emotional distress for very young children. But he found, on the basis of the evidence, that this distress did not rise to the higher level of serious harm.

The allegations of serious harm faced by the children in the instant case relate, in part, to the risk that the mother, as primary caregiver, will be separated from them should they be ordered home to Dubai where she has no independent residency status and does not wish to reside. The trial judge was aware of the mother's desire not to return, and to the very real possibility that she might remain in Ontario even if the children were ordered to return. This possibility was a foundational premise of his assessment of the likelihood of serious harm. The trial judge heard the parties and the expert evidence, and he concluded that it would be in the children's best interests to return to Dubai, even if the mother did not follow them. The trial judge did not rely on the view that the mother's conduct was the source of serious harm. Nor did he rely on the idea that the mother was obliged to accept the father's offer to secure her residency status in Dubai. The mother did not demonstrate that his conclusions were unsupported by the evidence or otherwise reflected a palpable and overriding error.

The allegations of serious harm faced by the children in the instant case also relate to the mother's claim that the UAE courts' parenting decisions are not made according to the best interests of the child. The trial judge was aware that aspects of UAE law are said to conflict with Ontario's conception of the best interests of children. The division of parental responsibilities on the basis of gender is inconsistent with the gender equality upon which the allocation and exercise of custody and access rights rests in Ontario law. Such a significant discrepancy required the trial judge to determine whether the best interests of the child principle would nevertheless prevail under UAE law should he order the return of the children. The trial judge relied on the testimony of expert witnesses to examine how those rules are applied by UAE courts. He concluded, on the strength of that evidence, that the provisions mandating the allocation of parental responsibilities on the basis of gender are not automatic or imperative, but are rather subject to the discretion of judges who ultimately decide custody and access on the basis of the best interests of the child. The mother has offered no principled basis to revisit the trial judge's conclusion.

In making the return order under s. 40, the judge took into account undertakings made by the father in a settlement offer that would alleviate the precariousness of the mother's residency status and thereby facilitate her return with the children, should she choose to do so. These undertakings were, for the trial judge, protective measures that promoted the best interests of the children in the event that the mother did decide to return. He considered the undertakings to be adequate. There is no reason to disturb this conclusion, but the undertakings should have been made explicit in the order, given the paramountcy of the best interests of the child principle under s. 40. Accordingly, in dismissing the appeal, it is appropriate to acknowledge that the father is bound by his undertakings.

Per Karakatsanis, Brown, Martin and Jamal JJ. (dissenting): There is agreement with the majority's discussion of the applicable legal principles but disagreement with the application of the law to the instant case. A proper application of the law to the facts establishes that the children would suffer serious harm if removed from Ontario. Therefore, the appeal should be allowed, the order of the trial judge set aside, and the matter returned to a different judge of the Ontario Superior Court to make a parenting order on an expedited basis.

While the CLRA aims to discourage child abduction and provides for the return of abducted children, s. 23 recognizes that, in some cases, the objective of discouraging abduction must yield to the paramount objective of preventing serious harm to children. A court's s. 23 determination is discretionary and generally attracts appellate deference. Appellate courts should not intervene simply because they would have weighed the likelihood or severity of harm differently. But appellate deference is not without limit. An appeal court may intervene if there has been a material error, a serious misapprehension of the evidence, or an error in law.

In the instant case, the trial judge made material errors. He seriously misapprehended the evidence in evaluating the likelihood of harm the children would suffer if they are separated from the mother and returned to the father. The likelihood of harm turned on the mother's claim that she will not return to Dubai. The trial judge was not sure he believed the mother's claim of non‑return and assigned very little weight to it. He relied on inconsistencies in the mother's account of tangential and largely irrelevant matters and ignored several crucial relevant considerations supporting the mother's claim that she would not return, thereby tainting his conclusion on the likelihood of the anticipated harm. Any suggestion that the mother has self‑engineered her claim of serious harm by steadfastly refusing to return to Dubai is rejected. When a parent justifiably refuses to return, the principle against self‑engineered harm does not apply. The mother provided reasonable and legitimate reasons for refusing to return to Dubai. Her precarious residency status in Dubai, her bases for refusing the father's settlement offer purporting to provide her with benefits if she returns, her legitimate concerns about living under the laws of the UAE as a woman, and her connections in Canada cumulatively rebut any suggestion of self‑engineered harm. The trial judge was required to turn his mind to the relevant factors that go to the believability of the mother's claim but he ignored relevant evidence as to why she would not return to Dubai. This omission is a material error because the trial judge's reasons give rise to the reasoned belief that he must have forgotten, ignored, or misconceived the evidence in a way that affected his conclusion. The trial judge's failure to address crucial relevant considerations shows that he seriously misapprehended the evidence and made an arbitrary decision to place very little weight on the mother's claim that she would not return to Dubai. The mother established that the children would likely be harmed if returned to Dubai.

The trial judge also misapprehended the evidence in evaluating the severity of the harm to the children. The trial judge's own factual findings regarding the expert evidence and the circumstances of these children demonstrated that the children would suffer serious harm if they lose their mother as their primary caregiver. The trial judge's contrary conclusion does not attract deference because it contained material errors and failed to address the particular circumstances of the children. Despite the jurisprudence repeatedly recognizing that young children can suffer serious emotional and psychological harm if removed from their primary caregiver, and despite the trial judge accepting expert evidence and taking judicial notice to the same effect, the trial judge found that the children would not suffer serious harm if separated from their mother. This was a serious misapprehension of the evidence and invites appellate intervention. The trial judge's conclusion gives rise to the reasoned belief that he must have misapprehended the evidence in a way that affected his conclusion. Absent a misapprehension of evidence, the trial judge's conclusion is inexplicable. The trial judge's reasons did not apply the case law or the expert evidence to the children's particular circumstances. In fact, in his s. 23 analysis, the trial judge did not address the children's circumstances at all. He simply stated bald conclusions.

The trial judge did not determine that the children would not suffer serious harm by relying on the mitigating effects of alternate caregivers. The trial judge did not address this factor in his s. 23 analysis. Even if the trial judge had sought to rely on the alternate care proposed by the father to mitigate the harm that the children would suffer if separated from their mother, it is difficult to understand how being cared for by the proposed alternate caregivers could adequately mitigate the harm that the children would suffer if they are separated from their mother.

Cases Cited

By Kasirer J.

Applied: Hickey v. Hickey, [1999] 2 S.C.R. 518; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; considered: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561; referred to: Droit de la famille — 3451, [1999] R.D.F. 641; Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849; Thomson v. Thomson, [1994] 3 S.C.R. 551; Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398; Droit de la famille — 15751, 2015 QCCA 638; Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440; L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111; E. (H.) v. M. (M.), 2015 ONCA 813, 393 D.L.R. (4th) 267; Young v. Young, [1993] 4 S.C.R. 3; Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362; W.D.N. v. O.A., 2019 ONCJ 926, 35 R.F.L. (8th) 190; S. (D.M.) v. S. (C.L.), 2016 BCSC 1551, 91 R.F.L. (7th) 202; Onuoha v. Onuoha, 2021 ONSC 2228, 54 R.F.L. (8th) 1, aff'g 2020 ONSC 6849, 49 R.F.L. (8th) 115; Volgemut v. Decristoforo, 2021 ONSC 7382; Ajayi v. Ajayi, 2022 ONSC 5268, 473 D.L.R. (4th) 609; M. (R.A.) v. M. (Y.Y.), 2005 BCPC 259, 48 Imm. L.R. (3d) 301; A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81; Leigh v. Rubio, 2022 ONCA 582, 75 R.F.L. (8th) 251; Aldush v. Alani, 2022 ONSC 1536, 74 R.F.L. (8th) 113; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517; B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668; Gordon v. Goertz, [1996] 2 S.C.R. 27; Jamali v. Gillani, 2021 BCSC 2134; Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365; S.A.G. v. C.D.G., 2009 YKSC 21; Hage v. Bryntwick, 2014 ONSC 4104; P. (J.) v. P. (T.N.), 2016 ABQB 613, 90 R.F.L. (7th) 211; C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465; In re J. (A Child) (Custody Rights: Jurisdiction), [2005] UKHL 40, [2006] 1 A.C. 80; General Motors Acceptance Corp. of Canada v. Town and Country Chrysler Ltd., 2007 ONCA 904, 288 D.L.R. (4th) 74; Hapag‑Lloyd AG v. Iamgold Corp., 2021 FCA 110; Larche v. Ontario (1990), 75 D.L.R. (4th) 377; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973; Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542; R.F. v. M.G., [2002] R.D.F. 785; Brown v. Pulley, 2015 ONCJ 186, 60 R.F.L. (7th) 436.

By Jamal J. (dissenting)

Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561; B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Hickey v. Hickey, [1999] 2 S.C.R. 518; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; Waxman v. Waxman (2004), 186 O.A.C. 201; Onuoha v. Onuoha, 2021 ONSC 2228, 54 R.F.L. (8th) 1; Gordon v. Goertz, [1996] 2 S.C.R. 27; Young v. Young, [1993] 4 S.C.R. 3; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81; R.J.F. v. C.M.F., 2014 ABCA 165, 575 A.R. 125; Aldush v. Alani, 2022 ONSC 1536, 74 R.F.L. (8th) 113; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 2(a), 7.

Children's Law Act, 2020, S.S. 2020, c. 2.

Children's Law Reform Act, R.S.O. 1990, c. C.12 [am. c. 25, Sch. 1], Part III, ss. 18(1), 19, 20(1), 22, 23, 24, 40 to 46, 69.

Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E‑14.

Civil Code of Québec.

Family Law Act, S.B.C. 2011, c. 25.

Federal Law No. 28 of 2005 on Personal Status (UAE).

Treaties and Other International Instruments

Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, preamble, Article 13(1)(b).

Authors Cited

Bailey, Martha. "Canada's Conflicted Approach to International Child Abduction", in Bill Atkin, ed., The International Survey of Family Law. Bristol: Jordan, 2016, 81.

Bala, Nicholas. "O.C.L. v. Balev: Not an 'Evisceration' of the Hague Convention and the International Custody Jurisdiction of the CLRA" (2019), 38 C.F.L.Q. 301.

Bala, Nicholas, and Jacques Chamberland. "Family Violence and Proving 'Grave Risk' for Cases Under the Hague Convention Article 13(b)", Queen's Law Research Paper No. 91, 2017.

Beaumont, Paul R., and Peter E. McEleavy. The Hague Convention on International Child Abduction. New York: Oxford University Press, 1999.

Chamberland, Jacques. "Country Report — Canada" (2005), 9 Judges' Newsletter on International Child Protection 75.

Chamberland, Jacques. "Domestic Violence and International Child Abduction: Some Avenues of Reflection" (2005), 10 Judges' Newsletter on International Child Protection 70.

Eekelaar, John M. "International Child Abduction by Parents" (1982), 32 U.T.L.J. 281.

Gosselain, Caroline. "Child Abduction and Transfrontier Access: Bilateral Conventions and Islamic States", in Permanent Bureau of the Conference, Preliminary Document No. 7, 2002.

Grammaticaki‑Alexiou, Anastasia. "Best Interests of the Child in Private International Law", in Collected Courses of the Hague Academy of International Law, vol. 412. Boston: Brill Nijhoff, 2020, 253.

Hague Conference on Private International Law. 1980 Child Abduction Convention — Guide to Good Practice, Part VI, Article 13(1)(b). Hague, 2020.

Hale, Brenda. "Taking Flight — Domestic Violence and Child Abduction" (2017), 70 Current Legal Problems 3.

Schuz, Rhona. The Hague Child Abduction Convention: A Critical Analysis. Oxford: Hart Publishing, 2013.

Schuz, Rhona. "The Relevance of Religious Law and Cultural Considerations in International Child Abduction Disputes" (2010), 12 J.L. & Fam. Stud. 453.

APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Hourigan and Brown JJ.A.), 2021 ONCA 614, 158 O.R. (3d) 481, 464 D.L.R. (4th) 571, 62 R.F.L. (8th) 7, [2021] O.J. No. 4678 (QL), 2021 CarswellOnt 12685 (WL), affirming a decision of Conlan J., 2020 ONSC 7789, 475 C.R.R. (2d) 1, [2020] O.J. No. 5507 (QL), 2020 CarswellOnt 18401 (WL). Appeal dismissed, Karakatsanis, Brown, Martin and Jamal JJ. dissenting.

Counsel

Fareen L. Jamal and Fadwa K. Yehia, for the appellant.

Bryan R. G. Smith, Lindsey Love‑Forester and Earl A. Cherniak, K.C., for the respondent.

Estée Garfin and Ravi Amarnath, for the intervener the Attorney General of Ontario.

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

Farrah Hudani and Jessica Luscombe, for the intervener the Defence for Children International‑Canada.

Paul‑Erik Veel, for the intervener the Canadian Council of Muslim Women.

Reasons for Judgment

The judgment of Wagner C.J. and Moldaver, Côté, Rowe and Kasirer JJ. was delivered by

Kasirer J. —

I. Overview

[ 1 ] The outcome of this appeal turns on whether the Ontario courts should exercise jurisdiction over the merits of a custody dispute involving an international child abduction. The dispute stems from the wrongful retention in Ontario by the appellant, the "Mother", of two very young children who habitually reside in Dubai, in the United Arab Emirates ("UAE"). The children are retained in the province without the consent of the respondent, the "Father", who remained in Dubai. What is at issue on appeal is not who, as between the parties, should be awarded the disputed custody rights in respect of the two children but instead which court — the Ontario court or a court in the UAE — should decide the matter.

[ 2 ] The proceedings commenced with an application for an order under s. 40 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"), brought by the left‑behind parent. The Father has asked the Ontario Superior Court of Justice for an order to return the children to the UAE, a country that, unlike Canada, is not a party to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"). The Mother answered that she would not return to Dubai and asked the court to take up jurisdiction over custody on the merits.

[ 3 ] Where a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Hague Convention, the CLRA provides that, absent exceptional circumstances, courts will refrain from exercising jurisdiction on the merits. The exception is found in s. 23 of the CLRA: the court may exercise jurisdiction to make a parenting order if it is satisfied, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario.

[ 4 ] In opposing the application, the Mother recalls that, like her, the children are Canadian citizens. She says that these two young children would suffer serious harm if returned to Dubai because she, as their primary caregiver, would not accompany them. The Mother, who has no independent residency status in Dubai, asserts that she would not return to the UAE and she argues that the children should remain in Ontario with her. She challenges the constitutional validity of the CLRA's return order provisions.

[ 5 ] After an 11‑day trial, the Ontario court declined jurisdiction because it was not satisfied that the children would suffer serious harm if sent to Dubai. The Court of Appeal, by a majority, dismissed the Mother's appeal. For the reasons that follow, I would also dismiss the appeal.

[ 6 ] In this Court, the Mother argues that the trial judge failed to properly identify and apply the best interests of the child principle to the relevant provisions of the CLRA. I respectfully disagree. The Mother is right to say that the best interests of the child is a fundamental principle that must inform the application of the CLRA, including the s. 23 exception and the s. 40 return order. But the best interests principle does not require that the Ontario court conduct a broad-based inquiry on the merits of the custody dispute at the jurisdictional stage.

[ 7 ] The Mother is right to say that the lower courts were bound to apply the principle of the best interests of the child to the problem at hand and that the return of the children to Dubai is in their best interests only if the matter is analyzed correctly. Where I disagree with the Mother is on the manner in which the principle should be applied. Under the CLRA and on the facts of this case, the children's best interests will be served by having the courts of the UAE, their habitual jurisdiction, decide the merits of the custody matter.

[ 8 ] Section 19 sets the objectives for the law relating to decision‑making responsibility and parenting time in Part III of the CLRA, including applicable provisions of s. 40. These objectives include discouraging abduction as an alternative to the determination of decision‑making responsibility by due process. The CLRA functions within a regime that presumes that a prompt return of an abducted child is in the best interests of that child. It reflects a policy choice: an orderly, non-abduction-based resolution of the dispute in the most closely connected forum is what the best interests of the child demands, absent exceptional circumstances justifying the exercise of jurisdiction by Ontario courts.

[ 9 ] The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. After the jurisdictional question is resolved, the best interests of the child will also inform the ultimate decision about custody and access by the court with proper jurisdiction.

[ 10 ] The approach advocated for by the Mother risks conflating decisions on jurisdiction with custody decisions on the merits and would encourage forum shopping and child abductions. If the serious harm exception in s. 23 were read as enabling a full best interests inquiry at the jurisdictional stage, a court hearing a s. 23 motion would effectively be deciding the custody dispute on the merits while claiming only to determine jurisdiction.

[ 11 ] The trial judge was called upon to decide the fact‑specific, highly individualized question as to whether these two children would suffer serious harm if they were removed from Ontario. He did not commit a palpable and overriding error in concluding that the serious harm threshold was not met. His decision is entitled to deference.

[ 12 ] Finally, I note the allegations of serious harm faced by the children in this case do not relate to domestic violence or abuse of any kind, but rather pertain to the risk of separation from the Mother, their primary caregiver, should the return order issue. The Father's undertakings effectively address the Mother's concerns about returning to Dubai by, among other things, providing her with independent residency status and with custody and access rights. While the trial judge addressed undertakings in the context of his assessment of the likelihood of the risk of harm, I am of the view that these undertakings should be included in the return order, so as to make them explicit and binding.

[ 13 ] Insofar as the Mother's residency status presents a risk that she will be separated from the children, the undertakings would remove an obstacle to the Mother's return by providing her with an independent basis for remaining in the UAE. They would also ensure the Mother has adequate financial support and accommodation, and enforceable custody and access rights. Given the paramountcy of the best interests of the child principle under s. 40, these undertakings should be made explicit in the return order.

[ 14 ] The terms of the Father's offer also do more than just remove potential barriers to the Mother's return. As Hourigan J.A. observed, the Father's undertakings constitute a recognition of the importance of the Mother to the children's lives.

[ 15 ] When the trial judge asked counsel to make submissions on how the Father's undertakings could be incorporated into his order, the Mother did not avail herself of this opportunity. As I will explain, nonetheless, I am of the view that the undertakings should be made explicit in the return order.

II. Background

[ 16 ] The Father is a citizen of Pakistan. He has been living in Dubai since 2008. The Mother moved with her family from Pakistan to Ontario in 2005, and then to Dubai in 2012 when she married the Father. The Mother does not have an independent residency status in Dubai and has been sponsored by the Father throughout their marriage.

[ 17 ] The parties have two children, a girl, Z. (born in 2016, aged four at trial) and a boy, E. (born in 2019, who was about one at trial). Both children are Canadian citizens. Z. was born in Ontario, E. in Dubai. Both children habitually resided in Dubai prior to their wrongful retention in Ontario.

[ 18 ] The parties experienced persistent marital difficulties.

[ 19 ] On June 19, 2020, the Mother travelled to Ontario with Z. and E. They left Dubai with return air tickets, ostensibly for a trip to visit her family. The Father agreed to that trip. However, on or about July 15, 2020, the Mother informed the Father that she intended to stay in Ontario with the children and not return to Dubai.

[ 20 ] Shortly after learning of the Mother's intentions, the Father initiated proceedings in Ontario seeking an order under s. 40 of the CLRA for the return of the children to Dubai.

[ 21 ] In response, the Mother said that custody and access should be decided in Ontario under the CLRA. She claimed that it was in the best interests of the children to remain in Ontario with her. She relied on s. 23 of the CLRA, arguing that the children would suffer serious harm if removed from Ontario.

[ 22 ] In July 2020, the Father initiated divorce proceedings in Dubai, in which the Mother did not participate. In March 2021, the Father obtained a divorce decree.

[ 23 ] Prior to the hearing of the s. 40 application, the Father presented a "with prejudice" settlement offer to the Mother's counsel and filed it in court. In it, he undertook to ensure the Mother's independent residency in Dubai, including by purchasing property for her in her name. He further undertook that the children would reside primarily with the Mother and that major decisions regarding the children would be made jointly.

[ 24 ] At trial, both parties testified. The Father called an expert on family law in the UAE, Diana Hamade. The Mother called two experts: Elena Schildgen, a lawyer in the UAE, and Dr. Brenda Parker, a registered psychotherapist.

[ 25 ] The trial judge had to resolve two issues: first, whether he should exercise jurisdiction for a parenting order on the merits; and second, if the court declined jurisdiction, whether to make a return order under s. 40 of the CLRA.

III. Proceedings Below

A. Superior Court of Justice, 2020 ONSC 7789, 475 C.R.R. (2d) 1 (Conlan J.)

[ 26 ] The trial judge found that both the Mother and the Father were good, loving and caring parents, who never mistreated, abused or neglected their children.

[ 27 ] As witnesses, the Father was "significantly more credible" than the Mother, who "was not a credible witness" (paras. 255‑56). The Mother's evidence was characterized by significant inconsistencies.

[ 28 ] The trial judge accepted the entirety of the expert evidence of the Father, Ms. Hamade, who was "very experienced in the courts in the United Arab Emirates" (para. 94). Regarding the Mother's experts, Ms. Schildgen and Dr. Parker, he had some reservations about aspects of their evidence.

[ 29 ] The trial judge assessed the entirety of the testimony he had heard. On the basis of that assessment, he made "four key findings" from the expert evidence:

(i) both parents are capable, loving parents who have not abused the children;

(ii) the Father would be cooperative and respectful of the Mother's rights in Dubai;

(iii) the courts in Dubai would decide issues of custody and access on the basis of the best interests of the children; and

(iv) it would help the separation of Z. and E. from their Mother if certain conditions were met in Dubai.

[ 30 ] After having reviewed the applicable legal principles, the trial judge determined that he should not assume jurisdiction under ss. 22 or 23 of the CLRA. He concluded as follows:

(i) there is no evidence at trial that Z. and E. are in any risk of being physically harmed if they return to Dubai;

(ii) there is some circumstantial evidence at trial (through Ms. Parker and her opinions about infants, generally) that Z. and E. could be at risk of emotional and psychological harm if they are returned to Dubai without their Mother;

(iii) there is no evidence at trial about the views and preferences of the children;

(iv) there is a claim by [the Mother] that she will not return to Dubai if the children are ordered to return there;

(v) there is nothing else in the evidence at trial that this [c]ourt finds to be relevant to the serious harm assessment for Z. and E. . . .; and

(vi) more specifically, considering the evidence of Ms. Hamade and Ms. Schildgen, there 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 the children, and (b) provide adequate enforcement of any custody and access orders made by the [c]ourt.

[ 31 ] He rejected the Mother's argument that the children would suffer serious harm if they were returned because a court in Dubai would not "really apply" a best interests standard.

[ 32 ] The trial judge accorded significant importance to the Father's "with prejudice" offer (paras. 48‑49) and was of the view that Dubai courts would apply a best interests analysis.

[ 33 ] While the trial judge recognized that young children, like Z. and E., can face negative emotional effects when separated from their primary caregiver, he found that such effects did not rise to the level of "serious harm" as contemplated by s. 23 of the CLRA.

[ 34 ] Turning to the issue of whether the children should be returned to Dubai pursuant to s. 40 of the CLRA, he concluded that it was in the best interests of the children to do so, with or without the Mother (paras. 381 and 387). Recognizing that s. 40 provided him with broad discretionary powers and that he was not bound to order the return of the children, the trial judge wrote that it was the "only appropriate order" (para. 384). Dubai was their real home.

[ 35 ] The trial judge also dismissed the Mother's challenge to the constitutional validity of s. 40 para. 3 of the CLRA (paras. 463‑64).

[ 36 ] He declared that the Mother had wrongfully retained the children in Ontario and ordered that they be returned to Dubai (para. 469). Lastly, before the order was finalized, and before the children would return to Dubai, he offered all parties the opportunity to make further submissions on whether to include the Father's settlement proposal in the order (para. 472). The Mother did not avail herself of this opportunity.

B. Court of Appeal, 2021 ONCA 614, 158 O.R. (3d) 481 (Lauwers, Hourigan and Brown JJ.A.)

[ 37 ] A majority of the court dismissed the appeal, confirming the trial judge's order to return the children to Dubai. Hourigan J.A. wrote reasons on behalf of the majority (Brown J.A. concurring), and Lauwers J.A. dissented.

(1) Hourigan J.A. (Brown J.A. Concurring)

[ 38 ] Recalling the applicable standard of review, Hourigan J.A. observed that the trial judge's decision on serious harm was subject to deference on appeal given its highly individualized and fact‑specific nature.

[ 39 ] Moreover, the trial judge was aware of the inconsistencies between UAE and Canadian law, but properly focussed on whether these discrepancies would lead to serious harm for the children in this particular case.

[ 40 ] Hourigan J.A. then turned to the trial judge's assessment of whether the separation of the children from their primary caregiver presented a risk of serious harm. He affirmed that the trial judge had not committed a palpable and overriding error in concluding that serious harm would not result from the children's return to Dubai even if the Mother chose not to accompany them.

(2) Brown J.A. (Hourigan J.A. Concurring)

[ 41 ] In concurring reasons, Brown J.A. dismissed the Mother's grounds of appeal regarding the constitutional challenge. Although this Court did not grant leave to appeal on this ground, Brown J.A.'s reasoning nonetheless provides relevant context.

[ 42 ] Brown J.A. observed that return orders made under s. 40 para. 3 share the same purposes as those made under the Hague Convention, that is, "to discourage child abductions and to promptly return children to their home jurisdiction so that custody can be determined there" (para. 226).

(3) Lauwers J.A. (Dissenting)

[ 43 ] For Lauwers J.A., the trial judge erred, both in law and in fact, when he concluded that the return of the children would not expose them to serious harm. Lauwers J.A. disagreed with the majority's conclusion about the risk of separation of the children from their primary caregiver.

[ 44 ] In this case, the children will be separated from their Mother because of her precarious residency status in Dubai. The separation of young children from their primary caregiver constitutes serious harm under s. 23 of the CLRA.

[ 45 ] The Father's contingent undertakings do not effectively mitigate the Mother's precariousness in Dubai where she has no independent legal right of residency. They were therefore insufficient to remove the serious harm risk, in Lauwers J.A.'s view.

IV. Issues

[ 46 ] The Mother's appeal raises two principal issues.

[ 47 ] First, she says the trial judge erred by declining to take up jurisdiction of the custody dispute on the merits. He wrongly concluded that jurisdiction under s. 23 of the CLRA was not available because the children would not suffer serious harm if removed from Ontario.

[ 48 ] Second, she says the trial judge erred in ordering that the children should be returned to Dubai pursuant to s. 40 para. 3 of the CLRA. He wrongly concluded that return was in the best interests of the children.

V. Analysis

A. Child Abduction in Ontario and Jurisdictional Issues

[ 49 ] Whether or not the dispute involves a country that is a party to the Hague Convention, when a child is wrongfully removed from their habitual residence, a court faces a preliminary question about jurisdiction: should it exercise its jurisdiction to decide the merits of the custody dispute, or should it defer to the courts of the child's habitual residence?

[ 50 ] Ontario sees the policy of discouraging child abduction as aligned with the principle of the best interests of the child. This finds expression in s. 19 of the CLRA, which lists the purposes of Part III, of which the return order provision (s. 40) is a part: "to discourage the abduction of children as an alternative to the determination of decision‑making responsibility by due process" (s. 19(c)).

[ 51 ] When children are wrongfully removed from non‑party states and brought to Ontario or another Canadian province or territory, the Hague Convention does not apply. The CLRA then governs.

[ 52 ] A review of legislation in this area reveals that, in general, Canadian provinces treat child abductions in non‑Hague Convention cases in a manner consistent with the objectives of the Hague Convention: see, e.g., Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E‑14; Children's Law Act, 2020, S.S. 2020, c. 2; Family Law Act, S.B.C. 2011, c. 25.

[ 53 ] In Thomson, a Hague Convention case, this Court clarified that the legislation governing non‑Hague and Hague Convention disputes "operate independently and are not to be considered as interchangeable" (p. 589). However, as La Forest J. observed in Thomson, the purposes underlying both regimes are closely aligned: "[b]oth have as their ultimate object the best interests of the child" (p. 560). Prompt return to the habitual jurisdiction is the norm.

[ 54 ] The children in this case have been removed from the UAE, a state which is not a party to the Hague Convention. It follows that this matter should be resolved under the CLRA.

B. The Statutory Scheme in Ontario

[ 55 ] Part III of the CLRA sets out the provisions concerning orders for decision‑making responsibility and parenting time made by Ontario courts under s. 22 and following. Section 22 provides that Ontario courts can assume jurisdiction to make a parenting order where Ontario is the habitual residence of the child, or where the child is physically present in Ontario under certain circumstances. In this case, it is not contested that the UAE was the children's habitual residence and that s. 22 is not available for the Mother.

[ 56 ] An Ontario court can also exercise its jurisdiction if the child would suffer serious harm as a result of being removed from Ontario. On appeal, s. 23 is the provision at issue:

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to 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.

[ 57 ] Within Part III, ss. 40 to 46 of the CLRA bear on "Decision-Making Responsibility, Parenting Time and Contact — Extra-Provincial Matters". Section 40 reads:

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 child's reasonable travel and other expenses to the place of return.

[ 58 ] Finally, s. 19 states the purposes of the whole of Part III — including the rules in s. 40 and the rules on jurisdiction, such as s. 23:

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 decision‑making responsibility, parenting time, contact and guardianship with respect to the same child ought to be avoided, and to make provision so as to minimize the likelihood of such occurrence;

(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.

[ 59 ] In sum, parents whose children have been abducted from a non‑party country can apply for their return pursuant to s. 40 of the CLRA. Unless the abducting parent establishes, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario (s. 23), the court will decline jurisdiction.

C. Jurisdiction and the Best Interests of the Child

[ 60 ] This case invites the Court to clarify the role the best interests of the child principle plays in the interpretation and application of the CLRA in the context of international child abduction.

[ 61 ] The Mother is not mistaken to point to the importance of the best interests of the child principle. As a general rule in Canadian family law, it is the paramount consideration in decisions affecting children. In the context of the CLRA's child abduction provisions, s. 19 makes it clear that decisions about jurisdiction and return orders must be informed by the best interests principle. That said, s. 19 also makes explicit the policy objectives that define the shape of the best interests principle in this context.

[ 62 ] That said, the Mother's submissions misapprehend the manner in which the CLRA would have the best interests principle apply to ss. 40 and 23. She focuses on the best interests of the children as if the CLRA required a broad-based best interests analysis at the s. 23 jurisdictional stage. It does not.

[ 63 ] As counsel for the Attorney General of Ontario explain in their helpful factum, the CLRA presumes, following an abduction, that the child's best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence. This presumption is rooted in the policy against child abduction that finds expression in s. 19(c) of the CLRA. It is based on the idea that the courts in the child's habitual jurisdiction are best placed to determine the child's best interests on the merits of the custody application.

[ 64 ] The premise that the children's best interests are favoured by their timely return to their home jurisdiction is sound. Child abductions harm children in many ways: they disrupt established family relationships; they can have negative psychological effects; they deprive children of their culture and customary ties; and they disrupt their education. Returning the children to the jurisdiction best positioned to decide the case on the merits minimizes these harms.

[ 65 ] Consequently, at the preliminary stage of deciding jurisdiction, it is not the role of the judge to conduct a broad-based best interests inquiry, as they would on the merits of a custody application. A broad‑based best interests analysis under s. 23 would ultimately undermine the purpose of the serious harm exception, that is, to ensure decisions on the merits are made by the appropriate authority in accordance with the best interests of the child.

[ 66 ] Under s. 23 of the CLRA, the court may exercise its jurisdiction if the abducting parent proves, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario. The judge hearing a s. 23 motion should resist the temptation to decide the case on the basis of a general assessment of the child's best interests, and instead focus on whether the evidence establishes, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario.

[ 67 ] Thus, when deciding whether to exercise jurisdiction under s. 23, judges should not conduct a broad-based best interests analysis, but should rather ask the focused question of whether the child would suffer serious harm — a specifically defined exception to the general rule of non-interference — if removed from Ontario.

[ 68 ] There is, of course, no doubt that an individualized serious harm analysis may overlap with a full best interests analysis. For instance, many factors relevant to a full best interests analysis — such as the child's established relationships, their cultural and social ties, their need for stability, and their special vulnerabilities — are also relevant in a serious harm assessment. The difference is one of focus: the s. 23 inquiry is directed at the specific question of whether serious harm would result, rather than which outcome would be best for the child overall.

D. Serious Harm

(1) Defining the Scope of the Serious Harm Exception

[ 69 ] The onus to prove that the child would suffer serious harm rests on the abducting parent (Onuoha v. Onuoha, 2021 ONSC 2228, 54 R.F.L. (8th) 1, at para. 58). The burden is demanding.

[ 70 ] Serious harm inquiries are child‑centered. As La Forest J. wrote in Thomson, building upon this Court's decision in Young, "from a child centered point of view", the court must be satisfied that the risks of harm are "real" and not merely speculative (Thomson, at p. 597). It is not enough to conclude that the return would have a negative impact on the child. It is also not enough to identify a serious risk of harm: the court must be satisfied, on a balance of probabilities, that the harm itself would be serious in nature.

[ 71 ] When conducting their s. 23 analysis, judges should consider both the likelihood and the severity of the anticipated harm (Ojeikere, at para. 61). The likelihood of harm must be established on a balance of probabilities. But even where harm is likely, it must be of a sufficiently serious nature to meet the threshold.

[ 72 ] The analysis is also highly individualized. It should focus on the particular circumstances of the child, rather than on a general assessment of the society to which they would be sent back.

[ 73 ] The stringency of the standard of "serious harm" under s. 23 may usefully be compared with that of the Hague Convention's grave risk of harm or intolerable situation exception (Article 13(1)(b)). These standards are not identical, but both aim to limit the exception to truly exceptional cases and to avoid transforming the exception into a broad best interests inquiry.

[ 74 ] The "serious harm" exception is often invoked in cases where children face a risk of emotional or physical abuse. Courts have, in particular, found the exception to be triggered where children would be exposed to domestic violence, sexual abuse, or extreme neglect upon return.

[ 75 ] Given the discretionary, individualized and fact‑specific character of the serious harm analysis, a trial judge's findings are owed deference. The standard of appellate review is palpable and overriding error (Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 13-14; Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 11-12). Appellate courts cannot set aside a trial judge's conclusion on serious harm simply on the basis that they would have weighed the evidence differently.

(a) Separation of Children From Their Primary Caregiver

[ 76 ] The prospect of separation of children from their primary caregiver, recognized in the last Ojeikere factor, raises important questions about the scope of the s. 23 exception.

[ 77 ] Separating an infant from their primary caregiver is a circumstance that most certainly can cause psychological harm to the child.

[ 78 ] But I reject the argument that such a separation, in and of itself and without regard to the individualized circumstances, will not always rise to the level of harm required under s. 23 of the CLRA.

[ 79 ] In Thomson, this Court explicitly endorsed the idea expressed in Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.), at p. 372, that in cases of child abduction, courts "should sometimes be prepared to order the return of the children despite a risk of separation from [the primary caregiver]" (Thomson, at pp. 601-02).

[ 80 ] The analysis of harm associated with separation under s. 23 must be individualized and based on evidence specific to the children before the court. In assessing harm associated with separation from a primary caregiver, the age of the child and, where relevant, their special needs and vulnerabilities, as well as the circumstances of the proposed return and available caregiving arrangements, are all relevant.

[ 81 ] When assessing the severity of the harm, judges should also consider whether undertakings made by the left‑behind parent can mitigate anticipated harm to the child. In some cases, undertakings can significantly reduce the risk of harm. For instance, undertakings that secure the primary caregiver's independent residency status or provide adequate custody and access rights for the primary caregiver can make it more likely that the primary caregiver will accompany the child on return, and less likely that separation will occur.

[ 82 ] As to the likelihood of separation, courts should consider all barriers to the return of the primary caregiver. In assessing the likelihood of separation, courts should be alert to the risk that an abducting parent may use their own refusal to return as a mechanism to trigger the serious harm exception. As Schuz noted:

An obvious strategy for a primary carer abductor is to state that she is not prepared to return with the child and that harm will result from the child being separated from her. This gives her a strong card to play in the courts in the taking state.

(The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 280, relying on C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465 (C.A.), at p. 473)

This is not a matter of blaming the taking parent for their refusal to return which, as I note below, may be justified. . . . It is about ensuring that the taking parent is not able to rely upon refusal to return as a means to achieve the very aim that the Convention aims to prevent.

(p. 281)

[ 83 ] This is not to say that a primary caregiver's refusal to return will always be taken to be unjustified. An abducting parent may have legitimate and reasonable reasons for not returning to the foreign country, such as significant obstacles to employment or risks to safety, including evidence showing that the left‑behind parent is responsible for child abuse or intimate partner violence to the primary caregiver.

(b) Foreign Law as a Source of Serious Harm

[ 84 ] The Court must also examine whether inconsistencies between family law in the foreign jurisdiction and in Ontario should factor in a serious harm analysis.

[ 85 ] International child abduction, by nature, engages two different jurisdictions, often partaking of different legal cultures and traditions. In Hague Convention cases, courts have generally held that inconsistencies between local and foreign legal regimes will not ordinarily amount to "grave risk" that would trigger the exception in Article 13(1)(b): see, e.g., Droit de la famille — 131294, 2013 QCCA 883, [2013] R.J.Q. 849.

[ 86 ] The same phenomenon may be observed in a non‑Hague Convention setting. To be sure, the announced objective of the foreign court is also relevant. If the foreign court will not decide custody on the basis of the child's best interests, there would be a greater risk of serious harm.

[ 87 ] As long as the ultimate question of custody is determined on the basis of the best interests of the child, the CLRA contemplates that the decision should be made by the courts with the closest connection to the children. The fact that the foreign court will apply different law, or may reach a different result than an Ontario court would, does not in itself amount to serious harm under s. 23.

[ 88 ] Nonetheless, there may be instances where foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the CLRA. In such extreme cases, the court should be satisfied, on a balance of probabilities, that the foreign courts would not decide the matter on the basis of the child's best interests.

[ 89 ] In this case, the Mother argues that the law of the UAE allocates custody and guardianship on the basis of gender. She says that this gender‑based allocation of parental responsibilities is radically incompatible with the best interests of the child principle that governs Canadian family law. As a result, she submits, ordering the children's return to the UAE would expose them to serious harm.

[ 90 ] I agree that equal treatment of parents, irrespective of their gender, is a fundamental precept of family law in Ontario and in Canada generally. I also agree with the Mother that a court's s. 23 analysis should be undertaken with due regard for the possibility that gender‑based allocation of parental responsibilities could compromise the protection of children's best interests and therefore constitute serious harm.

[ 91 ] Finally, there remains the question of which standard of review should apply in appeals seeking to disturb trial judges' s. 23 findings. As La Forest J. wrote in Thomson, at p. 590, the serious harm inquiry calls for an "individualized" assessment that is "highly dependent on the particular circumstances of the case". Given this fact‑intensive inquiry, trial judges' s. 23 findings are owed deference on appeal. As I noted above, the standard of palpable and overriding error applies (Van de Perre, at paras. 13-14; Hickey, at paras. 11-12).

[ 92 ] The manner in which this problem came before the trial judge means that this matter of the standard of review applies to the appeal from the trial judge's determination of whether the serious harm threshold was met — a highly individualized, fact‑specific question — rather than to abstract questions of law.

E. Section 40 and Return Orders

[ 93 ] When a court is satisfied that a child has been wrongfully removed to or is wrongfully retained in Ontario, a return order presented by the left‑behind parent is governed by s. 40 of the CLRA.

[ 94 ] Three remedies are available to a judge who declines jurisdiction over custody on the merits under s. 40 (Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, at paras. 60-61): (1) make an interim parenting order; (2) stay the application pending a proceeding in a foreign jurisdiction; or (3) order that the child be returned.

[ 95 ] Under the Hague Convention, judges do not have the same discretion: they will be obliged to return the children unless one of the specified exceptions is established. Under the CLRA, and unlike under the Hague Convention, where a judge declines jurisdiction, it retains a residual discretion under s. 40.

[ 96 ] Judges' discretion in determining what order will best remedy an abduction in non‑Hague Convention cases is limited by the policy objectives of the CLRA, including the objective of discouraging child abductions set out in s. 19(c).

[ 97 ] As with any decision affecting children, judges should consider the best interests of the child in exercising their s. 40 powers. The return order procedure starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. If the evidence is insufficient to establish that Ontario courts should assume jurisdiction, judges should not use their residual s. 40 powers to postpone indefinitely the child's return to the jurisdiction best positioned to decide the case on the merits.

[ 98 ] Nevertheless, judges must ensure the order itself properly protects the child's interests. Incorporating undertakings from the parties within a s. 40 return order may effectively facilitate a child's return by providing an answer to an anticipated risk of harm. Even without a risk of serious harm within the meaning of s. 23, undertakings may be in the child's best interests in that they effectively mitigate less consequential or short‑term distress.

VI. Application to the Facts

A. No Demonstrated Error in the Trial Judge's Conclusion on Serious Harm

[ 99 ] I would reject the Mother's submission that the trial judge committed a palpable and overriding error when he concluded that the children would not suffer serious harm if they were returned to Dubai.

(1) Separation From Primary Caregiver

[ 100 ] I agree with the view of the majority of the Court of Appeal that no reviewable error has been shown in the trial judge's conclusion that the children would not suffer serious harm if removed from Ontario.

[ 101 ] When the trial judge's reasons are read as a whole, it is clear that he properly drew individualized conclusions about the risk that Z. and E. would suffer serious harm.

[ 102 ] The broader factual context is also the reason why the Mother is wrong to claim that the trial judge concluded that the risk of serious harm was adequately mitigated by the Father's undertakings before declining jurisdiction under s. 23.

[ 103 ] Despite his finding that Z. and E. were facing a risk of emotional and psychological distress, the trial judge concluded that this distress did not rise to the higher threshold of serious harm. This is the context in which the trial judge discussed the Father's undertakings — not as mitigating serious harm, but as relevant to the s. 40 return order analysis.

[ 104 ] The record indicates that this conclusion was open to the trial judge. While Z. and E. are young, the trial judge relied on the specific circumstances of these children, including the fact that they had been previously cared for by the Father and other caregivers when the Mother was unavailable, and that they had established relationships with family members in Dubai.

[ 105 ] The trial judge also considered the Father's parenting plan. He accepted that if the Mother does not return to Dubai, the Father would care for the children, supported by a nanny (Mary) and other family members. He found that Z. would return to the school she had attended in Dubai.

[ 106 ] I turn next to the trial judge's assessment of the likelihood of separation. The Mother repeatedly asserted that she would not return to Dubai with the children. The trial judge placed very little weight on this assertion because of significant inconsistencies in the Mother's testimony that affected her overall credibility as a witness.

[ 107 ] At each stage, the trial judge remained alive to the Mother's desire not to return, and to the very real possibility that she might remain in Ontario even if the children were ordered to return. This possibility was a foundational premise of his assessment of the likelihood of serious harm.

[ 108 ] Mindful that she would be a divorced non‑national, the trial judge also considered the legal barriers the Mother would face if she sought to remain in Dubai, including the precariousness of her residency status.

[ 109 ] Lauwers J.A., without directly challenging these findings, suggested that the trial judge failed to consider the Mother's own evidence about her precarious residency status in Dubai. I am not persuaded. The trial judge was acutely aware of the Mother's precarious residency status and that this, combined with her stated desire to remain in Ontario, meant that separation was a real possibility.

[ 110 ] But even taking the Mother's case at its highest, recognizing that she "cannot and will not return to the UAE" and that separation is therefore likely, the trial judge was entitled to conclude, on the basis of the evidence, that the anticipated harm to Z. and E. from separation from their Mother would not rise to the level of serious harm. His conclusion on the severity of the harm is to be distinguished from his conclusion on the likelihood of harm.

(2) Foreign Law and the "Best Interests" Standard in the UAE

[ 111 ] The Mother also argues that the trial judge erred in concluding that parenting decisions in the UAE are made according to the best interests of the child.

[ 112 ] The crux of this argument is that pursuant to the relevant UAE legislation — cited here as Federal Law No. 28 of 2005 on Personal Status (UAE) — guardianship is automatically allocated to the father, while custody is allocated to the mother only until a specified age. The Mother argues that this gender‑based allocation of parental responsibilities is radically incompatible with the best interests standard and that returning the children to Dubai would therefore expose them to serious harm.

[ 113 ] The Mother argues that this gender‑based allocation of parental responsibilities is radically incompatible with the best interests of the child principle that governs Canadian family law.

[ 114 ] I agree with Lauwers J.A. that the division of parental responsibilities on the basis of gender is inconsistent with the gender equality upon which the allocation and exercise of custody and access rights rests in Ontario law. Such a significant discrepancy required the trial judge to determine whether the best interests of the child principle would nevertheless prevail under UAE law should he order the return of the children.

[ 115 ] The trial judge did conclude that the best interests of Z. and E. would be the paramount consideration in determining issues of custody and access in Dubai. He did not do so naively or simplistically.

[ 116 ] In reaching his conclusion that the children would not suffer serious harm if Dubai courts determined issues of custody and access, the trial judge relied on the testimony of both experts about the application of UAE law in practice.

[ 117 ] Specifically, he relied on the evidence of Ms. Hamade, the Father's expert, who testified that the rules according to which guardianship and custody are allocated on the basis of gender are not automatic or imperative in UAE courts. Ms. Hamade testified that UAE judges exercise their discretion to decide custody and access on the basis of the best interests of the child, consistent with the provisions of Federal Law No. 28.

[ 118 ] Moreover, the trial judge underscored the importance of the cross‑examination of the Mother's expert to his ultimate conclusion. The trial judge noted that the Mother's expert, Ms. Schildgen, confirmed, under cross‑examination, that the UAE courts do apply the best interests of the child principle.

[ 119 ] The trial judge relied on the testimony of both experts to support two distinct findings with respect to UAE law: (1) UAE courts decide issues of custody and access on the basis of the best interests of the child; and (2) the gender‑based allocation rules under UAE law are not automatic or imperative and are subject to judicial discretion.

[ 120 ] The crucial point here is that the trial judge did not reach his conclusion on serious harm because he failed to acknowledge the gender‑based provisions of UAE law. He acknowledged them and assessed, on the basis of expert evidence, whether those provisions would be applied in a manner consistent with the best interests of the children.

[ 121 ] These findings are owed deference. Judges interpret foreign law on the basis of expert evidence, their findings on foreign law attract the same deferential standard of review as findings of fact.

[ 122 ] As a result, the Mother has offered no principled basis to revisit the trial judge's conclusion that, despite the inconsistencies between UAE and Ontario law, a UAE court would decide issues of custody and access on the basis of the best interests of Z. and E.

(3) Conclusions on Serious Harm

[ 123 ] Assessing the application of the s. 23 regime in this case, I am satisfied that the trial judge properly considered the evidence and that the Mother has failed to demonstrate that the trial judge made a palpable and overriding error. He understood the legal framework for s. 23. He applied the applicable standard. He considered both the likelihood and severity of harm and conducted an individualized assessment. His conclusion deserves deference.

B. The Father's Undertakings Are Included in the Return Order

[ 124 ] The Mother submits that the trial judge did not properly exercise his s. 40 powers. Before ordering the return of the children, she says, the trial judge should have given more consideration to the best interests of the children, including by explicitly incorporating the Father's undertakings into his order.

[ 125 ] I respectfully disagree with the Mother.

[ 126 ] As noted, when judges decline jurisdiction, they are not entitled to rely upon their s. 40 powers to make determinations on the merits of the custody dispute. Having declined jurisdiction, the trial judge could not use s. 40 as a mechanism to impose terms on the parties — such as, for instance, assigning custody rights — that amount to a decision on the merits.

[ 127 ] Furthermore, it is apparent that the trial judge did consider the best interests of the children when he made his s. 40 order. He was alive to the risk of harm to the children — even where that risk did not rise to the level of serious harm under s. 23. And he was alive to the fact that the Father's undertakings could be relevant to protecting the children's interests upon their return.

[ 128 ] Having declined to exercise jurisdiction and having concluded that removal from Ontario would not expose the children to serious harm, the trial judge proceeded to consider whether to make a return order and to make one under s. 40. He concluded that the best interests of the children were aligned with their return to Dubai.

[ 129 ] What remains to be decided is whether this Court should include some of the undertakings proposed by the Father in our order dismissing the appeal.

[ 130 ] In his submissions before our Court, the Father restated his argument that the "with prejudice" undertakings he had offered in his settlement proposal should be incorporated into the return order. He renewed his commitment to the undertakings he had previously offered.

[ 131 ] I consider the Mother's acknowledgment of the potential usefulness of undertakings and the Father's renewal of his commitment to take measures to remedy her precarious situation on return as an expression of willingness, on both sides, that undertakings be part of the s. 40 return order.

[ 132 ] The trial judge, in the exercise of his discretion under s. 40, considered the undertakings to be adequate. I see no reason to disturb this conclusion but, respectfully, they should have been made explicit in the order. I note, however, that the trial judge called for submissions by counsel on the undertakings made by the Father in the settlement proposal (para. 472) and, as noted by Hourigan J.A. on appeal, the Mother did not respond (paras. 62‑63). If the trial judge had had the benefit of the Mother's views on the undertakings, he would likely have explicitly included them in his order. I note his reliance on Ms. Hamade's expert testimony, who took them into account, and his lengthy quotation of the undertakings at para. 49 of his reasons.

[ 133 ] Given the paramountcy of the best interests of the child principle to a s. 40 order, the refusal of the Mother to make submissions on the undertakings does not prevent this Court from making the undertakings explicit in the return order.

[ 134 ] Problems associated with the enforceability of undertakings by foreign courts are well known. But, in this case, I am satisfied that the undertakings are sufficient to be included in the return order. The courts in the UAE are competent to enforce the agreement as a contract.

[ 135 ] Moreover, I share the view of Chamberland J.A., writing in a Hague Convention case, that a left‑behind parent has a moral obligation to abide by undertakings that were offered to induce the return of the children.

[ 136 ] In this case, I find it useful, then, to make explicit the undertakings the trial judge himself considered to be adequate:

N. undertakes as follows:

1. Prior to F.'s returning to Dubai to live with the children, N. shall vacate the home that the parties' [sic] and the children currently occupy in Dubai (the "N. residence") to allow F. and the children to move into that home temporarily until the new property referred to in paragraph 3 below is available for F.'s occupancy.

2. Mary will continued [sic] to be employed to assist with the care of the children when they are at N.'s residence. All expenses associated with Mary shall remain N.'s responsibility.

3. Within 90 days of F. returning to Dubai, N. will purchase of [sic] a home in Dubai, with the value of up to 1,000,000 AED, based on F.'s selection from among the properties that N. identifies for her review.

4. Title to the new property will be taken in F.'s name, which will ensure her independent residency status as registered owner in Dubai.

5. The arrangements for the parenting/custody/access of the children will be as set out in the draft agreement attached as Exhibit A to N.'s affidavit sworn September 21, 2020 (the "N. affidavit").

6. Financial provision for the children and F. will also be a [sic] set out in the Exhibit A to N.'s affidavit sworn September 21, 2020.

7. In the alternative to paragraphs 5 and 6, if F. wishes to pursue her rights entitlements and remedies in the court in UAE, N. will consent to all matters being resolved by the court in UAE on the terms of the draft agreement attached as Exhibit A to the N. affidavit.

8. The terms herein will be made into a consent Order/Judgement issued by the [c]ourt in the UAE.

[ 137 ] I would dismiss the appeal, with costs. I would not disturb the costs orders in the courts below.

Dissenting Reasons

The reasons of Karakatsanis, Brown, Martin and Jamal JJ. were delivered by

Jamal J. —

I. Introduction

[ 138 ] I have had the benefit of the reasons of my colleague Justice Kasirer. I agree with my colleague's discussion of the applicable legal principles but disagree with his application of the law to the facts of this case.

[ 139 ] The main issue in this appeal is whether the trial judge erred in concluding that the Ontario courts lack jurisdiction to make a parenting order under s. 23 of the CLRA because the children would not suffer serious harm if removed from Ontario.

[ 140 ] The CLRA aims to discourage child abduction and provides for the return of abducted children (see ss. 19 and 40 of the CLRA). At the same time, s. 23 recognizes that, in some cases, the objective of discouraging abduction must yield to the paramount objective of preventing serious harm to children.

[ 141 ] In this case, the trial judge found that the mother did not establish serious harm and made a return order under s. 40 of the CLRA. However, the trial judge made material errors in evaluating both the likelihood and the severity of the harm that the children would suffer if they are returned to Dubai. These material errors displace the appellate deference generally afforded to discretionary determinations, including those involving serious harm under s. 23 of the CLRA.

[ 142 ] I agree with my colleague that to determine the issue of serious harm, the trial judge had to assess the likelihood and severity of the harm to the children. But the trial judge made material errors in making that assessment.

[ 143 ] The trial judge misapprehended the evidence relating to the likelihood that the children would suffer harm if they are separated from the mother and returned to the father. The likelihood of harm turned on the mother's claim that she will not return to Dubai. The trial judge placed very little weight on this claim, relying on inconsistencies in the mother's account of tangential and largely irrelevant matters, while ignoring several crucial relevant considerations supporting her claim that she would not return. This error affected his conclusion on the likelihood of harm.

[ 144 ] I reject any suggestion that the mother has "self-engineered" her claim of serious harm by steadfastly refusing to return to Dubai. When a parent justifiably refuses to return, the principle against self‑engineered harm does not apply.

[ 145 ] The trial judge also misapprehended the harm to the children. He did not give effect to his own factual findings. Despite accepting expert evidence and taking judicial notice that separation of young children from their primary caregiver can cause serious harm, the trial judge found, without explanation, that the children would not suffer serious harm. His findings on the severity of harm contained a material error.

[ 146 ] I disagree with my colleague's suggestion that the trial judge determined that the children would not suffer serious harm by relying on the mitigating effects of alternate caregivers. The trial judge did not address this factor in his s. 23 analysis.

[ 147 ] The trial judge's material errors displace the appellate deference generally afforded to discretionary determinations involving serious harm under s. 23 of the CLRA. A proper application of the law to the facts establishes that the children would suffer serious harm if removed from Ontario. I would allow the appeal, set aside the order of the trial judge, and return the case to a different judge of the Ontario Superior Court to make a parenting order on an expedited basis.

II. Discussion

[ 148 ] The trial judge described the s. 23 issue of whether the children would suffer serious harm if returned to Dubai as "the primary issue for determination" at trial (2020 ONSC 7789, at para. 348). His analysis of this issue was brief: approximately four pages of his 179-page judgment.

[ 149 ] I agree with my colleague that the trial judge weighed the evidence and made factual findings throughout his reasons; it would be wrong to limit the s. 23 analysis to these four pages. The trial judge's factual findings must be read in their entirety to assess whether he committed a material error in his s. 23 analysis.

[ 150 ] I also agree with my colleague that a court's s. 23 determination is discretionary and generally attracts appellate deference. Appellate courts should not intervene simply because they would have weighed the likelihood or severity of harm differently. But appellate deference is not without limit. An appeal court may intervene if there has been a material error, a serious misapprehension of the evidence, or an error in law (B.J.T. v. J.D., 2022 SCC 24, [2022] 1 S.C.R. 668, at para. 28).

[ 151 ] As I will explain, the trial judge seriously misapprehended the evidence in evaluating both the likelihood and severity of the harm that the children would suffer if they are returned to Dubai.

A. The Trial Judge Erred in Assessing the Likelihood of Harm

[ 152 ] The trial judge erred in assessing the likelihood that the children would be harmed if removed from Ontario by ignoring evidence relevant to the mother's claim that she would not return to Dubai.

(1) The Trial Judge Ignored Evidence Relevant to the Mother's Claim That She Would Not Return to Dubai

[ 153 ] In his s. 23 analysis, the trial judge had to consider the likelihood that the two infant children would suffer harm if they are separated from their mother and returned to the father. The mother is the children's primary caregiver and the only evidence before the trial judge about the likelihood of separation was the mother's claim that she would not return to Dubai.

[ 154 ] The only evidence in the record on this point was from the mother. She testified that she would not return:

. . . I will not go back. My -- my -- my children, first of all and before anything else, the -- the reason for the separation is there. My kids are going to be well taken care of . . . I'm going to be there for them . . . I see myself being a better parent if I'm actually in Canada and getting access.

(A.R., vol. VI, at pp. 245-46)

[ 155 ] The trial judge placed "very little weight" on the mother's claim (para. 368). His reason was, in his words:

I am not sure that I believe [the mother], for the reasons outlined earlier in this Judgment. [para. 368]

[ 156 ] The "reasons outlined earlier" were the trial judge's reasons for concluding that the mother was not a credible witness. He found the mother not credible based on inconsistencies between her testimony and other evidence about matters including her level of formal education, how she carried out prayer obligations during the day, and the amount of housework the Father performed.

[ 157 ] In assigning little weight to the mother's claim based on these inconsistencies, the trial judge ignored relevant evidence about whether the mother would return to Dubai.

[ 158 ] Here, the trial judge addressed none of the following factors that were relevant as to whether the mother's claim of non-return was credible:

(a) First, the mother expressed concerns about living as a woman in the UAE. She noted that in the UAE, the police do not interfere in domestic matters. She stated that in the UAE, women cannot dress or act freely as they could in Canada.

(b) Second, the mother stated that she refused to return to Dubai with the children because the father would hold a grudge against her and that she would have no support in Dubai.

(c) Third, the mother repeatedly rejected the father's settlement offer, which provided concrete evidence that she was not prepared to accept the terms on which she could return and thereby maintain her status in Dubai.

(d) Fourth, without accepting the settlement offer, the mother's options for obtaining a residency permit are extremely limited: a non-national woman can only obtain an independent residency permit in the UAE if she has an employment permit or owns property. The mother acknowledged that she does not own property in the UAE.

(e) And fifth, the mother had strong connections to Canada, including her Canadian citizenship, prior residence, supportive family, and social connections in Ontario.

[ 159 ] The Court does not have to speculate as to whether the trial judge ignored these considerations in rejecting the mother's evidence that she would not return to Dubai. The trial judge's reasons say nothing about them.

[ 160 ] The trial judge's conclusion regarding serious harm turned on his flawed credibility determination. His error goes to the heart of the serious harm analysis.

[ 161 ] This error also explains the inconsistent treatment of the mother's testimony by the trial judge and the Court of Appeal. The trial judge rejected the mother's testimony based on immaterial inconsistencies while ignoring relevant evidence supporting the mother's claim of non-return.

[ 162 ] The trial judge's failure to consider relevant factors thus led both the trial judge and the majority of the Court of Appeal to mistakenly conclude that the likelihood of harm was low and therefore did not factor into the serious harm analysis.

[ 163 ] My colleague interprets the trial judge's express statements that he placed "very little weight" on the mother's evidence as not amounting to a rejection of the mother's evidence that she would not return. That interpretation is unconvincing.

[ 164 ] My colleague concludes otherwise by highlighting passages in which the trial judge said that the children should return to Dubai "with or without" the mother. But these statements in the trial judge's reasons simply show that he considered both scenarios and concluded that the children's best interests were better served by returning to Dubai even if the mother did not follow them. They do not show that the trial judge actually believed that the mother was likely to return.

[ 165 ] In any event, if, as my colleague suggests, the trial judge did not reject the mother's evidence that she would not return to Dubai, then the trial judge recognized that she likely would not return — and yet still failed to adequately address why separation of the children from their mother in those circumstances would not constitute serious harm.

(2) The Mother Has Legitimate Reasons for Refusing to Return to Dubai

[ 166 ] I agree with my colleague that, ordinarily, a parent should not be allowed to create serious harm and then rely on it — it would pervert the purpose of s. 23. However, this exception does not apply when a parent has legitimate and reasonable reasons for not returning. As I have explained, the mother had legitimate and reasonable reasons for not returning to Dubai.

[ 167 ] My colleague does not suggest that the mother self-engineered harm to the children by refusing to return to Dubai. But there is a suggestion in the majority's reasons that the mother could have avoided the alleged harm by accepting the father's settlement offer and returning to Dubai. In my view, this is wrong.

(a) The mother's residency status in Dubai remains precarious and depends on the father's sponsorship in securing a residency permit. Without independent financial support, the mother lacks the means to purchase property or obtain employment, both prerequisites for an independent residency permit.

(b) The mother was entitled to refuse the father's "with prejudice" settlement offer that, if she returns to Dubai, he will purchase property for her in her name and give her primary custody of the children. This offer was made in the context of contentious litigation and the mother cannot be required to accept it to return to Dubai.

(c) The mother also has a legitimate basis for her concerns about living under the laws of the UAE as a woman. For instance, the UAE's laws on guardianship and custody assign different rights to men and women. The mother is not required to return to the UAE to vindicate her rights under a legal regime that treats her differently based on her gender.

[ 168 ] My colleague proposes to address the mother's concerns about her precarious residency status by including as a condition of the return order the undertakings the father offered in his settlement proposal. In my view, this does not adequately address the serious harm that the children would suffer if they are returned to Dubai separated from their mother.

[ 169 ] Accordingly, this is not a case in which a parent has self-engineered harm and relied on it in an unreasonable or abusive manner.

(3) Conclusion

[ 170 ] I conclude that the mother established that the children would likely be harmed if returned to Dubai. I now turn to the severity of the anticipated harm.

B. The Trial Judge Erred in Assessing the Severity of Harm

[ 171 ] The trial judge found that the children would not suffer "serious harm" if removed from Ontario (para. 370). My colleague agrees with this conclusion. I do not.

[ 172 ] The trial judge's own factual findings regarding the expert evidence and the circumstances of these children demonstrated that the children would suffer serious harm if they lose their mother as their primary caregiver.

(1) Children Can Suffer Serious Harm if Separated From Their Primary Caregiver

[ 173 ] Courts at all levels in Canada have repeatedly recognized that children can suffer serious emotional and psychological harm if removed from their primary caregiver. This recognition appears in the case law on s. 23 of the CLRA and its equivalents in other provinces: see, e.g., Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561; A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81; Aldush v. Alani, 2022 ONSC 1536, 74 R.F.L. (8th) 113; R.J.F. v. C.M.F., 2014 ABCA 165, 575 A.R. 125; Onuoha v. Onuoha, 2021 ONSC 2228, 54 R.F.L. (8th) 1.

[ 174 ] This Court has often recognized the harms of removing children from their primary caregiver. For example, in Gordon v. Goertz, [1996] 2 S.C.R. 27, McLachlin J. (as she then was) noted: "The disruption to the child's relationship with one parent has always been regarded as a negative consequence of mobility orders, to be weighed in the balance. The loss of the child's primary caregiver, if applicable, has been regarded as an even more serious matter" (para. 49).

[ 175 ] Similarly, in Young v. Young, [1993] 4 S.C.R. 3, L'Heureux-Dubé J., dissenting in the result but not on this point, wrote: "The courts have increasingly recognized the importance of the 'psychological parent' in the life of children" (p. 86).

[ 176 ] Provincial appeal courts have consistently expressed the same view. For example, in A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, the Court of Appeal for Ontario recognized that an infant's "psychological bond" with their primary caregiver "is an important factor to consider" in a s. 23 analysis (para. 27).

[ 177 ] Courts of first instance have been of the same view. For example, in Aldush v. Alani, 2022 ONSC 1536, the court observed: "It is well recognized that very young children form a primary attachment to their primary caregiver and that disruption of that attachment can cause serious harm" (para. 69).

[ 178 ] The relationship children have with their primary caregiver is thus crucial to their emotional and psychological well-being. Separating an infant from their primary caregiver is widely recognized as a circumstance that can cause serious harm, depending on the circumstances.

(2) The Trial Judge's Conclusion on Serious Harm Is Irreconcilable With His Other Findings

[ 179 ] Despite the jurisprudence repeatedly recognizing that children can suffer serious emotional and psychological harm if removed from their primary caregiver, and despite the trial judge accepting expert evidence and taking judicial notice to the same effect, the trial judge found that the children would not suffer serious harm if separated from their mother.

[ 180 ] In his brief s. 23 analysis, the trial judge found that the children would not suffer serious harm based on six findings:

I conclude as follows:

(i) there is no evidence at trial that Z. and E. are in any risk of being physically harmed if they return to Dubai;

(ii) there is some circumstantial evidence (through Ms. Parker and her opinions about infants, generally) that Z. and E. could be at risk of emotional and psychological harm if they are returned to Dubai without their Mother;

(iii) there is no evidence at trial about the views and preferences of the children;

(iv) there is a claim by [the mother] that she will not return to Dubai if the children are ordered to return there;

(v) there is nothing else in the evidence at trial that this court finds to be relevant to the serious harm assessment for Z. and E. . . . ; and

(vi) more specifically, . . . there 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., and (b) provide adequate enforcement of any custody and access orders made by the court.

[ 181 ] The trial judge thus accepted that there was "some circumstantial evidence" from Ms. Parker, the mother's psychotherapist expert, that the children could be at risk of emotional and psychological harm if they are returned to Dubai without their Mother.

[ 182 ] Based on Ms. Parker's evidence, the trial judge accepted "[w]ithout hesitation" that separating an infant from their primary caregiver can cause serious harm (para. 305). He acknowledged that:

. . . the general proposition that removing an infant from his/her primary caregiver may adversely impact the infant, emotionally and psychologically, would seem outside the ordinary experience and knowledge of the public at large, but it is, in fact, well within such knowledge and experience.

(2020 ONSC 7123, at para. 10)

[ 183 ] The trial judge accepted Ms. Parker's expert evidence that young children can suffer short-term and long-term harm when they are separated from their primary caregiver: separation can affect a child's emotional and psychological development, can impair a child's capacity for future relationships, and can cause lasting developmental and psychological harm.

[ 184 ] In my view, given the case law, the expert evidence, and the facts of which the trial judge took judicial notice, the trial judge's findings establish that the children would suffer serious harm if they are separated from their mother and returned to the father.

[ 185 ] Despite all these findings, the trial judge concluded, without explanation, that the children would not suffer serious harm under s. 23 of the CLRA if they were to be separated from their mother.

[ 186 ] My colleague suggests that the trial judge relied on the alternate care arrangement proposed by the father and the children's return to their previous school as mitigating the harm that the children would suffer if separated from their mother. I disagree.

[ 187 ] Reading the reasons generously and as a whole, I cannot agree that the trial judge relied on such mitigation in relation to the children. The trial judge mentioned these factors at the close of his consideration of the Father's four "key findings" — not in the context of his s. 23 analysis. Having set out these findings, the trial judge concluded that the serious harm threshold was not met, without addressing the children's circumstances.

[ 188 ] In concluding otherwise, my colleague refers to the trial judge's description of the evidence of the mother's expert that "it would help the separation of Z. and E. from their mother if certain conditions were met in Dubai" (para. 306). That passage reads: "it would help the separation of Z. and E. from their mother if certain conditions were met in Dubai, such as having someone that the children already know care for them while they are with the Father (the nanny, Mary), them being able to return to the same school Z. attended before, and having other caregivers who are willing to help" (para. 306). But the conditions mentioned there — conditions Dr. Parker said would "help" — are not the same as conditions that would prevent serious harm. "Helping" does not mean "preventing serious harm."

[ 189 ] The majority of the Court of Appeal also did not interpret the trial judge as having relied on mitigation of the harm that the children would suffer if separated from their mother. To the contrary, Hourigan J.A. wrote for the majority: "The father's plan involving the return of the children to their previous school and the continued employment of Mary were found to be adequate to prevent serious harm if the mother refused to return to Dubai" (para. 52). But the trial judge did not make this finding. His reasons said nothing to that effect.

[ 190 ] Even if the trial judge had sought to rely on the alternate care proposed by the father to mitigate the harm that the children would suffer if separated from their mother, it is difficult to understand how being cared for by the proposed alternate caregivers could adequately mitigate the harm that the children would suffer if they are separated from their mother.

[ 191 ] More fundamentally, I agree with the submission of the intervener Office of the Children's Lawyer that the serious harm analysis should focus on the harm caused to the child, and not on factors available to mitigate the harm after separation. The question should be: what harm would the children suffer if they are separated from their primary caregiver? Not: can that harm be mitigated through alternate care?

(3) Conclusion

[ 192 ] I conclude that the mother established that the children would suffer serious harm if returned to Dubai.

C. Conclusion

[ 193 ] The trial judge made material errors in evaluating the likelihood and severity of the harm that the children would suffer if they are returned to Dubai. A proper application of the law to the facts establishes that the children would suffer serious harm if removed from Ontario. The Ontario court should exercise jurisdiction to decide the merits of the custody dispute.

[ 194 ] Contrary to the view of the majority of the Court of Appeal, this conclusion does not create a hard-and-fast rule that serious harm will always result when an infant is removed from a primary caregiver. The conclusion is based on the particular circumstances of these children.

[ 195 ] This conclusion also respects the policy objectives underlying the CLRA of discouraging child abduction and promoting the best interests of the child. Section 23 reflects the Ontario legislature's recognition that discouraging child abduction must sometimes yield to preventing serious harm to children. This is one such case.

III. Disposition

[ 196 ] I would allow the appeal, set aside the order of the trial judge, and return the case to a different judge of the Ontario Superior Court to make a parenting order on an expedited basis, with costs throughout.

Appeal dismissed with costs, Karakatsanis, Brown, Martin and Jamal JJ. dissenting.

Solicitors

Solicitors for the appellant: Jamal Family Law Professional Corporation, Oakville.

Solicitors for the respondent: Lerners, Toronto.

Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Civil Law Division – Constitutional Law Branch, Toronto.

Solicitor for the intervener the Office of the Children's Lawyer: Office of the Children's Lawyer, Toronto.

Solicitors for the intervener the Defence for Children International‑Canada: Burrison Hudani Doris, Toronto.

Solicitors for the intervener the Canadian Council of Muslim Women: Lenczner Slaght, Toronto.

[^1]: Certain provisions have been amended since the decisions of the courts below, including using the terms "decision-making responsibility" and "parenting time" rather than former terms such as "custody" and "access". These changes were enacted by the Children's Law Reform Amendment Act, 2020, S.O. 2020, c. 25, Sch. 1. In the interests of consistency, the current terminology of the CLRA has been used throughout these reasons.

[^2]: Justice Lauwers, dissenting in the Court of Appeal for Ontario, was justifiably concerned about the form of the trial judge's reasons as a whole (at para. 266, fn. 14):

The trial judge's reasons in this case extended over 179 pages and 482 paragraphs. Large chunks of the text consisted of lengthy verbatim recitations of evidence, arguments and case law. This is a form of reasons-writing that this court has repeatedly discouraged, and the practice makes it more difficult to identify the trial judge's findings of fact and credibility.