Aker v. Abou-Taha, 2026 ONSC 3247

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Medhat Aker

Michael Stangarone and Tiffany Guo, for the Applicant

Applicant

• and -

Aya Abou-Taha

David Tobin, for the Respondent

Respondent

Eric Vallillee, the Children’s Lawyer

HEARD: May 11–15, 20, 21 and 22, 2026

OUELLETTE J.

REASONS FOR JUDGMENT

Introduction

1Before the court was an eight-day trial concerning two children: Juana (10) and Serene (7).

2This is a non-Hague Convention removal case. The issues to be addressed are as follows:

i. Where is the children’s habitual residence?

ii. If the children’s habitual residence is not Ontario, should the Ontario court assume jurisdiction pursuant to the Children’s Law Reform Act (CLRA), s. 22(1)(b) (children physically present and balance of convenience)?

iii. Should the Ontario court assume jurisdiction under s. 69, parens patriae?

iv. If this court does not have jurisdiction pursuant to s. 22(1)(a) or 22(1)(b) or s. 69, should the Ontario court assume jurisdiction pursuant to CLRA s. 23 (serious harm)?

v. If the Ontario court declines jurisdiction, what orders should be made under s. 40?

Summary of Decision

3The Ontario Superior Court of Justice does not have jurisdiction to hear the Application on the merits.

4The parties are to forthwith make parenting claims in the courts of England and Wales.

5The children shall reside with the parents on a shared schedule as between the Respondent (the mother) in London, Ontario and the Applicant (the father) in Cambridge, England (if the Applicant chooses to relocate there) until a further parenting order is made in a court of England and Wales or the parties are able to come to their own agreement.

Brief Background

6The parties resided together as a family in Cambridge, England from 2017 to March 2023. The father vacated the matrimonial home in July 2023 at which time he relocated to London, England (UK) for work. Following the separation, the parties agreed that the UK would not be their long-term plan as they had no familial support in the UK and it was expensive. After lengthy negotiations spanning months, the parties agreed to relocate to Dubai.

7The mother found employment in Dubai, United Arab Emirates (UAE) and moved there with the children in September 2024. The plan was that the father, who was a surgeon, would obtain the necessary certification to be able to practice in Dubai and he would follow once he was able to work there.

8On March 7, 2026, without the father’s knowledge or consent, the Respondent relocated to Canada with the children.

9The Respondent states that it was the evening of March 5, 2026 when she decided she could not remain in Dubai and decisions needed to be made quickly to leave. Her evidence is that there was insufficient time to consult, let alone notify, the Applicant of the relocation. She states that she was facing unemployment, meaning her visa would be revoked, and that there were bombs going off due to the American war in Iran.

10The Applicant does not dispute that Dubai is no longer an option for the family. His position is that when the Respondent was no longer able to reside in Dubai due to geopolitical instability and loss of employment, she should have returned the children to their home country of England, and specifically Cambridge, the last city in which they resided as a family.

Position of the parties

11On March 8, 2026, the Respondent mother relocated from Dubai, UAE to London, Ontario without advance notice or consent of the Applicant father. The father resides in England and submits that the children were wrongfully removed from Dubai, which was their habitual residence, and should be returned to his care in the UK. The father is agreeable to submit to undertakings the court deems appropriate in making an order pursuant to s. 40 of the CLRA.

12The mother submits that the children were not wrongfully removed from Dubai and that the court has jurisdiction pursuant to s. 22(1)(b) or, alternatively, pursuant to s. 22(a), s. 23, or s. 69 of the CLRA. In the further alternative, her request is that should the court find it does not have jurisdiction, that the court stay the application allowing the children to remain in Canada while proceedings commence in the UK pursuant to s. 40 of the CLRA.

13An order for the appointment of the OCL was ordered on consent on April 14, 2026 by Justice Hassan. The OCL’s position is that the children want to remain in the primary care of their mother, in Canada.

14The circumstances of this request are somewhat unique, as neither party is requesting the children be returned to the country where they lived from September 2024 to March 2026, when they were relocated to Canada by the Respondent.

15Throughout the proceedings, the parties referred to England and the UK interchangeably. The UK is four countries within a country, and the children have only ever resided in England. In his Application the father seeks that the children be returned to his care in the “UK”; however, at trial the Applicant seeks that the children be ordered to reside in Cambridge, England pending a determination of the parenting issues in the courts of England and Wales.

Conduct of the Trial

16On agreement, evidence in chief was provided by way of affidavit only. The parties were physically present for their cross-examination, as was the OCL clinician. All other witnesses attended remotely. Closing submissions were also given remotely.

17Both lead counsel for the parties, their juniors, and the Children’s Lawyer were well organized, prepared, and provided helpful facta and closing submissions. Due to their diligence, the trial of this matter concluded May 22, 2026, only weeks after the Application was issued on April 9, 2026.

Witnesses at Trial

18Pursuant to Hassan J.’s Order, the parties were restricted to the main affidavits of the parties, and three supporting affidavits for each party.

For the Applicant

19Aside from his own evidence, the Applicant called only one supporting lay witness, his brother, Tamer Samir Al Aker. He provided his evidence in chief by way of affidavit and attended virtually for cross-examination. As he resided in Germany and not in the same city with the Applicant and the children, he did not frequently observe the Applicant in a parenting role. From the times he did observe them together, he found the Applicant to be appropriate and affectionate.

For the Respondent

20The Respondent also called only one supporting witness, her cousin, Lama Alsukhon, who provided her evidence in chief by way of affidavit. She also attended virtually for cross-examination. Ms. Alsukhon resides in London, England and gave evidence about her observations of the parties when they resided together in the UK. Her evidence was that they would visit from 2–4 times per year and that she observed her cousin to be a primary caregiver to the children.

For the Office of the Children’s Lawyer

21The OCL’s witness was Jonathon DeLuca. Mr. DeLuca has a Master of Social Work, and is a former children’s aid society protection worker and child protection supervisor with over 20 years’ experience. Mr. DeLuca provided an affidavit and was cross-examined in person. He deposed that the children expressed a consistent and independent preference to reside in the primary care of their mother. He deposed there was nothing to suggest the children had been inappropriately influenced.

Expert Evidence

22At the outset of trial, counsel for the Applicant indicated that in response to the Respondent’s factum, that expert evidence may be required on the issue of whether the “UK court” would accept jurisdiction. On very short notice both counsel for the Applicant and Respondent were able to retain experts on jurisdictional issues in courts of UK and Wales, which prolonged the trial by one week.

Expert for the Applicant

23Michael Gration KC was called as an expert by the Applicant. Mr. Gration is a lawyer, called to the bar of the courts of England and Wales in 2007. He is a member of various international law groups, has written a number of publications on international law, and his practice specialty are family law cases involving the international movement of children, including Hague and non-Hague cases and public law cases with international or other jurisdictional issues. He was presented with the following question: whether the courts of England and Wales would assume jurisdiction over the parenting issues with respect to the subject children if the court in Ontario ordered the return of the children to England.

24Mr. Gration stated in his affidavit that the courts of England and Wales would have jurisdiction in two ways. Firstly, it was his opinion that the court already has jurisdiction because of the ongoing divorce proceedings. Secondly, the court would have jurisdiction if the children were returned to England as a consequence of their physical presence in England. He stated that the Application could be made within the context of the ongoing divorce proceedings now, and the Application would be delayed until the children set foot on the ground in England.

Expert for the Respondent

25Nina Hansen was called as an expert by the Respondent. Ms. Hansen was qualified as a lawyer in 1987. In 2001 she became accredited by Resolution (England’s Solicitor Family Law Association) as an expert in International Child Abduction and Adoption. Since 2003 she has been a member of the English Central Authority’s Child Abduction referral Panel. She has an impressive number of reported decisions. She was asked to answer two questions:

1. Does the English court currently have jurisdiction to make parenting orders in respect of the children?

2. If the Ontario court were to order the children’s return to England, would an English court assume jurisdiction to make parenting orders at that point?

26In response to the first question, Ms. Hansen stated in her evidence that the English court did not currently have jurisdiction but noted that there was a retained discretional (parens patriae) jurisdiction that could potentially be claimed in an extreme circumstance. The court could be requested to accept jurisdiction under parens patriae as the children are British citizens or as a result of the existence of divorce proceedings in England; however, it would be in the court’s discretion. She opined that this claim would be unsuccessful until a determination on jurisdiction was made in the Ontario court.

27On the second question, Ms. Hansen concluded that habitual residence did not need to be re-established, and the court could accept jurisdiction based on the children’s presence in England.

Motion on Hearsay – Ruling

28At the outset of trial, the Respondent brought a motion to strike certain paragraphs from the Applicant’s affidavits. The Applicant also made an oral motion in which he sought to strike four paragraphs of the Respondent’s affidavit.

29I reserved my decision on the motion which I told counsel I would deliver with the trial reasons. This is my ruling.

The Respondent’s motion to strike paragraphs of the Applicant’s affidavit sworn April 24, 2026

i. Para. 22: The Respondent submits this statement should be struck as the information received from the Applicant’s cousin is double hearsay. The OCL took no position. Although this issue was not contentious, the Applicant did not provide enough specificity about the source of the information in his affidavit. I have struck the second half of the sentence beginning with “…and he advised that his wife…”. Ultimately it was admitted by both parties and through the Applicant’s brother that the Applicant found out about the relocation from a third party.

ii. Para. 30: The Respondent submits that the summary of the statements that the children allegedly made to the Applicant about their school is inadmissible as hearsay. The OCL also submits that the statement should be struck. I find this statement was proffered by the Applicant as proof about the quality of education the children are receiving, and not proof that the statements were made. I have struck the sentence commencing “the girls have both expressed to me…” to “here in Cambridge.”.

iii. Para. 31: The Respondent submits that the Applicant does not state the source of his information regarding his inability to work in Canada. The OCL took no position. I find that this statement is opinion evidence, proffered by the Applicant who is a doctor, about a fact of which he has personal knowledge. However, I have not placed much weight on this evidence as i) it lacked specificity on the process to be retrained in Canada; and ii) although it may be an important issue for the Application on parenting, the Applicant’s ability to work in Canada is not as relevant to the issues for this trial.

iv. Para. 45: The Respondent submits that the summary of the statements the children allegedly made to the Applicant about their mother yelling, Juana’s incontinence and her feelings about her mother are inadmissible as hearsay. The OCL also requests that they be struck. I agree. I find that these statements are not made to offer a narrative but to cast the mother in a bad light through inadmissible hearsay. I am striking this paragraph as the probative value does not outweigh the prejudicial effect of the statements.

v. Para. 47: The OCL submits that this statement purportedly made by the children about the police should be struck as inadmissible hearsay. I agree. I am striking the second half of the paragraph commencing with the sentence “The girls recently advised me…”

The Respondent’s motion to strike paragraphs of the Applicant’s affidavit sworn May 7, 2026

i. Paras. 3, 4 and 37: objections withdrawn.

ii. Para. 5: The Respondent and the OCL submit that the Applicant’s “tit-for-tat” allegation that the Respondent was abusive towards him is not proper reply. I agree. A party must exhaust their evidence in the first instance and may not split their case. These issues were raised in the Respondent’s pleadings. I strike the sentence that begins “in fact, Aya…” to “jealous demands.”

iii. Para. 36: The Respondent submits that the evidence proffered by the Applicant is opinion evidence, outside of the Applicant’s direct knowledge, and that he does not identify the source of his belief. The OCL took no position. I agree that the Applicant is not in a position to give opinion evidence about the geopolitical circumstances or the normal life of citizens in Dubai nor the UAE’s air defences. I strike the portion of the sentence from “with respect to the…” to “keep its citizens safe.”

iv. Para. 58: The Respondent submits that the Applicant does not have direct knowledge about available flights from the UAE and he does not provide particulars about the source of his belief. The OCL took no position. I find the portion of the statement about flights that were available to the Respondent was not within the Applicant’s knowledge, and strike from “it is not true…” to “from the UAE.”

The Applicant’s motion to strike paragraphs of the Respondent’s affidavit sworn May 4, 2026

i. Para. 28(a): The Applicant submits that the Respondent’s mother’s statement should not be admitted on the basis that it is hearsay. I am allowing the evidence as the Applicant’s mother is deceased and this evidence is not available through another source. However, I do not attribute much weight to the statement given its relevance to the issues at this trial.

ii. Para. 54(b): The Applicant submits that the statement made by Priscila about the Respondent’s parenting should not be admitted on the basis that it is hearsay. I agree. I strike subparagraph (b) in its entirety.

iii. Para. 60 (there were two paragraphs 60 in the Respondent’s affidavit): The Applicant objects to the second paragraph 60 at the bottom of page 13 on the grounds that it is hearsay. I find that this statement is not hearsay, but rather the Respondent’s view about her own experience while living in Dubai, and I allow this evidence.

iv. Para. 124: The Applicant submits that the evidence about the children’s impression of their school and classmates should be struck as inadmissible hearsay. The Respondent states that they are admissible as they are her observations/impressions and not hearsay statements. The OCL agrees with the Respondent’s position but does not strenuously take a position. Although the Respondent’s submissions state that they are observations, they are written as conclusions; the Respondent does not say that she has observed the children to be warmly welcomed, but rather, that they have been warmly welcomed. I therefore strike the second sentence of the paragraph which commences with “They love it…” I note evidence about the children’s school was given in Mr. DeLuca’s affidavit to which neither party objected.

Factual Findings at Trial

30The evidence established the following facts.

31The parties met in 2010 in the UK. They married in Abu Dhabi, UAE on January 2, 2011.

32Juana was born in London, England. In 2017 the family relocated to Cambridge, England. Serene was born in Cambridge.

33The children and the Respondent are citizens of the UK and Canada. The Applicant holds a Jordanian passport, is a citizen of the UK and has family who resides in Egypt.

34The mother has many family members living in Canada. The father has no connection to Canada. The maternal grandfather resides in London, Ontario. The mother also has an extensive family network in London and Toronto.

35Prior to separation, the parties had considered relocating outside of the UK. They had considered the United States, Australia, New Zealand and Singapore.

36In or around September 2021, there was an incident involving the parties in a verbal altercation in front of the children. The Applicant put his hands on the Respondent and removed her from the room.

37The parties at times shouted at one another in public, and in front of the children. This continues to the present day.

38The parties separated on March 15, 2023. The Applicant vacated the matrimonial home in July 2023, and the parties have not resided together since that time.

39Upon leaving the matrimonial home, the Applicant moved to London, England; he did not reside in the same city as the children.

40From July 2023 to September 2024, the Applicant did not have a regular schedule with the children, seeing them some weekends or some evenings.

41The children resided in Cambridge, England until they relocated to Dubai, UAE in September 2024.

42Both parents love their children.

43The children feel safe in the care of both parents and identify the mother as the primary caregiver.

44The children are intelligent, articulate, thoughtful and in good health.

45The children have travelled to Canada to visit family only a few times in their life, although the visits were for extended periods (up to six weeks at a time).

Separation

46On January 3, 2025, the parties entered into a Partial Separation Agreement concerning the matrimonial home, property division, payment of child support and extra costs for the children by the father to the mother, and university costs for the children.

47The sale of the matrimonial home has still not been effected. In February 2025, there was an offer but it fell through on the buyer’s end. The Applicant put a pause on an offer made on February 10, 2026. The proceeds of sale of the home are to be disbursed to the Respondent and she is frustrated that the Applicant is causing delay.

48The parties filed a joint application for divorce which was issued on January 9, 2025.

49The terms of the Partial Separation Agreement have not yet been made into a consent order in the divorce proceedings.

50No claim for decision-making responsibility or parenting time has been made by either party in the courts of England and Wales.

Relocation to Dubai

51Overall, the parties have been able to maintain a respectful coparenting relationship following separation.

52Prior to arriving in Canada, neither party reported the other to the police or to children’s services (or England’s equivalent).

53On May 3, 2024, in a text exchange between the parties, the Applicant sent the Respondent a message that was often referenced by the Respondent and forms the basis of her position at this trial. It reads as follows:

I have no interest in keeping you away from the girls. I want to spend living time with the girls. I hate being a pick up/drop off/weekend dad as much as you do. I want to be in their lives. At least for a while, so we don’t grow apart. So they get used to me, when they come visit from abroad. We both agree that UK is not the right place anymore. We have no support. And I want to leave as well as soon as I check the consultant box. And I will support you whatever you decide to so, here, Canada, Dubai.

54Discussions continued in the weeks that followed, and the Applicant sent the Respondent the following text on July 26, 2024:

I started the conversation saying I’m OK with you doing and moving where you like. If you’re not gonna to communicate with me. Or accuse me of not caring about the girls because I’m OK you leaving the country, I swear to god I will put a court order for you not to leave the country.

55These two texts are only a snapshot of the discussions the parties had about planning for the children’s future.

56Ultimately, it was agreed that the Respondent would relocate to Dubai with the children and the Applicant would follow thereafter.

57The Applicant agreed to Dubai because he could work there pending additional accreditation.

58The parties had an outstanding debt owed to the Stephen Perse Foundation. This was the children’s private school in England before they left for Dubai. The total amount due was £43,671.61. The matter went to collections, and the Respondent had to borrow money from her father to help pay the debt.

59The Respondent instructed her counsel to write a letter to the Applicant, which was dated August 27, 2024. The letter documented the Respondent’s plan to move with the children to Dubai at the beginning of September 2024. She proposed that the parties share decision-making responsibility for significant issues such as medical treatment or a change in schooling. The lawyer asked that the father sign a copy of the letter to confirm that he read and understood the contents and agreed to following the principle. The father did not sign the letter.

September 2024 to January 2026 (Dubai)

60On March 4, 2025, the Applicant signed a “no objection for sponsorship of children” letter, to permit the Respondent to sponsor the two children for their residency in the UAE. In the letter, the father states that he will “hopefully be moving there soon as well.”

61On April 7, 2025, the Respondent sent a text to the Applicant saying that she chose Dubai to make it easier for him, and to be close to his family. She put him on notice that if he did not get his “shit” together by the summertime, she would reconsider staying in Dubai and start considering relocating to Canada; that she would consider Dubai a “failed trial”. This text is only a slice of the conversations that occurred between the parties around this time period and serves to show that a) the Respondent was frustrated with the Applicant, and b) the Respondent was considering a relocation to Canada at 9:39 on April 7, 2025.

62Also around April 2025, the parties negotiated a variation of the parenting schedule (albeit with difficulty) to accommodate the Respondent’s travel to Canada with the children, the Applicant’s work schedule and his brother’s wedding in Egypt.

63In April 2025, the Respondent entered into a 12-13month contract for a rental flat in Croydon, UK, to commence May 15, 2025.

64On May 27, 2025, the Applicant commenced his one-year contract as a Locum consultant at Croydon Health Services NHS trust.

65In July 2025, the Applicant sent a message to the Respondent advising that he was accepting a consultant job offer in London, UK. The Respondent stated in her response, “the kids need to see you more than this.” She then added, “all their holidays should be with you at the minimum.”

66Following the relocation to Dubai, the father visited the children about every other month, as follows:

i. November 12–20, 2024: in Dubai;

ii. January 6–16, 2025: in Dubai;

iii. March 23–April 4, 2025: he arranged unaccompanied minor flights for both children to meet him in Cairo, Egypt;

iv. May 2–18, 2025: in Dubai;

v. August 21–22, 2025; in the UK;

vi. October 11–19, 2025: in Dubai;

vii. December 7–21, 2025: he arranged unaccompanied minor flights for both children to meet him in Cairo, Egypt; and

viii. A March 13–29, 2026 visit was scheduled in Dubai but did not occur because the Respondent had left for Canada the week prior.

67While the children were in his care, the father cared for the children himself.

68In the months following her relocation, the Respondent increasingly felt unsupported by the Applicant, particularly financially.

69Life in Dubai was expensive for the Respondent as there were no free recreational activities for the children.

70The children attended two private schools while in Dubai. Both followed a British curriculum.

71The children considered Dubai their home. They had friends and engaged in activities there, including crocheting, basketball and writing club.

Applicant’s relocation to Dubai

72While having a text discussion about money, on November 21, 2025, the Applicant stated to the Respondent, “I am applying for jobs in ksa [Kingdom of Saudi Arabia] and Qatar now to be able to afford your payments.”

73The Applicant sent a proposed parenting agreement to the Respondent in January 2026 that did not contemplate a specific timeline for his relocation to the UAE:

i. at para. 9, “the contact arrangements are to be reviewed in the event the Father moves to the United Arab Emirates (UAE)” [Emphasis added];

ii. para. 15 contains an awkwardly worded paragraph: “in the event, Father moves to the United Arab Emirates (UAE), parties are to agree to shared “live with” child arrangements. The specifics of this arrangement are to be agreed between the parents in writing.” [Emphasis added]

74The Respondent did not sign the parenting agreement because it included terms about joint parenting time, an issue that had not previously been discussed between the parties, and she wanted independent legal advice.

75The Applicant received a letter from his employer, Croydon Health Services NHS Trust, dated February 19, 2026, informing him that his fixed-term contract was set to conclude on May 26, 2026. The Applicant signed the letter acknowledging its receipt on February 20, 2026.

76In or around February 2026, the Applicant told the Respondent that he got engaged to a woman living in Dubai. He advised the Respondent that there was no date set for the marriage.

77On February 27, 2026, the Applicant reached out to the Respondent via text to discuss divorce proceedings and financial disclosure.

78On March 3, 2026, the parties were in discussions about the ongoing litigation and resolving their property and child maintenance dispute. The Respondent questioned the timing of the discussions, to which the Applicant replied, “I definitely don’t want to still be in the process [of the divorce] when I move to Dubai.”

79At no time did the Applicant provide the Respondent with a specific date of his intention to relocate to the UAE.

80The Applicant applied to various jobs in Sharjah, Dubai and Abu-Dhabi. As of April 20, 2026, the Applicant had not received any offers of employment in Dubai.

81No evidence was led on whether the father would have (or could have) relocated to Dubai without first having secured employment.

Timeline: Respondent’s discussions with her employer, disclosure to the Applicant and her relocation to Canada

82The Respondent received a letter from her employer, dated March 6, 2026, which confirmed a previous discussion they had on February 27, 2026. During the February 27, 2026 meeting, the employer advised the Respondent that they had decided not to proceed with opening a Middle East office, therefore her contract would come to an end on March 27, 2026. The Respondent was offered new employment to commence April 1, 2026 and the option to work in the UK or North America; the choice was entirely hers as to where she wanted to go. The letter confirmed that the preferred timing for the transition was April 1, 2026.

83I find that the Respondent knew as of February 27, 2026 that her employment was terminating on March 27, 2026, and that if she did not find alternate employment, she and the children would have to leave the UAE. This was important information that should have been shared. Even if she did not know whether the Applicant would ever relocate to Dubai, she knew he was planning to visit with the girls mid-March.

84There were many opportunities for the Respondent to share her employment status with the Applicant in the following days. She did not avail herself of those opportunities.

85On March 1, 2026, the parties exchanged a number of texts about the children’s watches which were used to communicate with the Applicant. The texts were amicable and solution focused.

86Days later, on March 3, 2026, throughout the day, the parties exchanged texts about finalizing their property issues, child support, and divorce proceedings. Importantly, these texts included the following:

17:41: Applicant: 2. Child maintenance will not go up to 3K automatically, it will be reviewed upon my move.

17:45 Respondent: Ok sure, but will be open to UAE court ‘diacretion’ in that case. If you wanted it to be reviewed, then will be reviewed here.

87This would have been an appropriate time to disclose to the Applicant the precarious nature of her employment status and the children’s visas. Instead, she sends the message that she intends to remain in UAE as she specifically requests that the issue of variation of child maintenance be dealt with in UAE courts.

88On March 4, 2026, the Applicant texts the Respondent asking about a change in school holiday dates, saying he was still coming as scheduled and his dates would not change. The Respondent replied: “you realize all flights are cancelled, so “tbd”.” The Respondent advised that he was still hopeful he would be able to visit.

89During these discussions about the upcoming visit, no texts were exchanged about the Applicant’ relocation to Dubai, or the Respondent’s relocation to Canada.

90On March 5, 2026, at about 2:00 p.m. EST (8:00 p.m. Gulf Standard Time), the Respondent’s brother booked a direct flight from Dubai to Toronto for the Respondent and the children. The flight departed at 8:15 a.m. on March 7, 2026.

91The Applicant learned the Respondent was in Canada through a third party.

92The Applicant confronted the Respondent on March 8, 2026 by text, asking for confirmation that she had moved to Canada.

93On Sunday, March 8, 2026, the Respondent advised the Applicant by text that she had had a meeting with her employer on Friday, March 6, that the employer did not want to continue investing in the Middle East but was looking to expand in North America, and that they offered her an employment contract there (instead of contractor work). She noted that the salary would be lower but she wanted to accept anyway because she was out of a job and could not remain in the UAE without employment, so she had to leave.

94The Respondent initially denied relocating and on March 8, 2026 told the Applicant over text, “all I know is we cant be in UAE now. … things will be clearer in the next few days. Me and you need to figure out what this means for the family considering the circumstances.”

95I find that the Respondent deliberately misled the Applicant; she had already made the decision to relocate.

96On March 9, 2026, the Respondent unilaterally unenrolled the children from Dove Green Private School in Dubai and transferred them to Jack Chambers Public School in London, Ontario.

97In the next few days, the Respondent blocked communications with the Applicant, accusing him of being harassing to her family.

98On March 12, 2026, the Applicant sent a sympathetic message to the Respondent about the relocation, stating: “…worried and scared with the noises and the rockets. No one was there to reassure you. Baba wasn’t there to assure, calm down, and make the girls feel safe. And add to that your recent job uncertainties. of course I would feel like upping and leaving.”

99The Respondent lost her residency status in UAE as it was tied to her employment.

100The girls’ residency cards were set to expire on March 18, 2026. No evidence was led on whether the Respondent applied to renew the cards or whether the Applicant had asked if the children’s residency status needed to be updated.

101On March 26, 2026, the Respondent signed the withdrawal form from the children’s school in Dubai.

102The Respondent received a contract of employment dated April 8, 2026. The Offer was valid to April 10, 2026.

103The Applicant was consistent in his objection to the Respondent’s relocation. He noted his objection immediately and started an application on April 9, 2026 which was served on the Respondent through counsel on April 13, 2026.

Credibility – the Parties

104The Applicant presented as a loving father who wants to ensure that he plays a meaningful role in the children’s lives. He lacked a concrete plan on how to do that.

105The Respondent presented as a loving mother who no longer wishes to coparent with a father who cannot commit to concrete plans.

106It was clear that both parties are frustrated with the other’s position and that they have not been able to shield the children from their adult conflict.

107Both parties’ evidence seemed at times to be self-serving.

108I found that the Applicant overstated his involvement with the children prior to separation. Although he testified in cross-examination that he often saw the children on weekends and midweeks after separation prior to their departure, this was inconsistent with the texts he sent to the Respondent during that period that he was a “pick-up drop-off weekend dad”. The father also admitted in his supplementary affidavit that he worked a very demanding job which required him to be away from home at times so that he was not as present a father as he could have been.

109I also do not accept the father’s evidence that he only agreed to the Respondent’s relocation to Dubai on the understanding that there would be a shared parenting arrangement once he also relocated. I accept the mother’s evidence that the first time this was raised was when she received the Applicant’s draft parenting agreement in January 2026.

110In the Applicant’s 35.1 Affidavit dated April 8, 2026, he explicitly states at page 3 that his plan is to reside at 70 Vinery Road in Cambridge, UK. This is the address of the parties’ former matrimonial home which must be sold pursuant to the parties’ Partial Separation Agreement. I find that this was misleading on a material issue at trial and I do not accept the father’s explanation that he used this address because he considers it his home address for banking and other purposes. The 35.1 Affidavit requires the party to provide information to the court about their plan of care for the children; it asks the affiant to disclose: “I plan to live at the following address”.

111I also found that the Respondent tried to minimize the Applicant’s parenting of the children at trial. She told the Applicant in a text that the children were “badass” because he was their father, but in cross-examination she explained that this was not true, she was simply encouraging him to get him to be more involved.

112The Respondent applies a double standard with regard to the parties’ respective employment situations; she faults the Applicant for taking too long to sort out his employment status in Dubai, however, requires that the Applicant accommodate her employment which required her to leave Dubai on very short notice.

113The Applicant blames the Respondent for her sudden departure and the Respondent blames the Applicant for his lack of commitment to relocating to Dubai. These apparently irreconcilable differences in opinion are rooted in the parties’ inability to communicate effectively.

114The Applicant faults the Respondent for her apparently sudden move; however, from her point of view she regularly gave notice of her displeasure about his lack of involvement, explicitly in the summer of 2025 when she said that if he could not get his “sh**” together, she would contemplate leaving for Canada and consider her “trial” in Dubai a failure. I accept her evidence that this meant she was putting the Applicant on notice that she would leave if certain conditions were not met. In her mind, she never wavered from that position, even though she did not regularly communicate this to the Applicant.

115For his part, I accept the Applicant’s evidence that he did not waver in his plan to relocate to Dubai even though his plan was more of a concept with no fixed deadlines.

− He never communicated a date when he was going to leave the UK;

− He did not give the Respondent a copy of the letter showing his contract termination date;

− He did not provide her with written updates on his ability to obtain employment and

− In January 2026 he sent a parenting agreement which states “in the event he resides in the UAE” and not when he relocates to the UAE.

116The Applicant had an obligation to continue apprising the Respondent of the implementation of the plan. Due to the lack of information communicated to her, the Respondent cannot be faulted for thinking that the Applicant did not intend to relocate in May.

117The Respondent treated the agreement to coparent in Dubai as a contract, and when the Applicant breached his end of the bargain, she believed she was free to rewind to the beginning of their negotiations when the parties agreed that the UK was not their long-term plan and the Applicant assured her he would support wherever she chose to go with the children; that she was free to do whatever she wanted.

118However, this concrete way of approaching the relocation issue ignores many important facts, such as the Respondent’s proposed joint decision-making responsibility on important matters concerning the children and the Applicant retraining to be able to work in Dubai.

119Prior to making her decision to relocate, the Respondent never asked in writing for an update on the Applicant’s relocation plans. She did not give him any notice of her intent to follow through the termination of her Dubai “trial”. She had an ongoing obligation to update the father about her inability to carry on with the plan. The letters from her employer show that she was made aware during a meeting on February 27, 2026 that her contract was being terminated effective March 27, 2026. As her visa to remain in the UAE was dependent on that contract of employment, therefore, she had notice that she was required to leave the UAE and chose not to inform the father.

Legal Test

120As this is a Non-Hague case, the CLRA applies. The analysis commences with s. 19 of the Act which sets out the purposes of Part III:

19 The purposes of this Part are,

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

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

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

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 2020….

Jurisdiction

121Determining a child’s habitual residence is the key to determining jurisdiction under the CLRA. Section 22 of the CLRA reads as follows:

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

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

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

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

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

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

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

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

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

Habitual residence

22(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

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

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

Abduction

22(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

Section 23: Serious Harm

122If an Ontario court can assume jurisdiction under s. 22, then the matter can proceed to the next stage, to address parenting orders. If it cannot assume jurisdiction under s. 22, then it must look to s. 23:

Serious harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

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

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

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

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

(iii) the child is removed from Ontario.

Section 25

123Section 22 of the CLRA must also be read with ss. 25 and 42(2). Section 25 provides as follows:

25 A court having jurisdiction under this Part in respect of decision making or parenting time may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.

Section 40

124Where the court does not have jurisdiction, or declines jurisdiction, s. 40 of the CLRA applies:

40 Upon application, a court,

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

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

may do any one or more of the following:

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

2. Stay the application subject to,

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

ii. such other conditions as the court considers appropriate.

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

Caselaw as to “jurisdiction”

125For applications that fall outside of the Hague Convention, the governing legislation is found in Part III of the CLRA which sets out the provisions concerning orders for decision‑making responsibility and parenting time made by Ontario courts under the law of Ontario. An Ontario court will not make a parenting order unless it has jurisdiction to do so pursuant to ss. 22(1)(a) or (b), 23, or parens patriae jurisdiction under s. 69. See: F. v. N. 2022, SCC 51. at para. 55.

126In Canadian family law, best interests of children are a paramount consideration, regardless of whether there has been an international abduction, whether the Hague applies or the child’s country of origin. However, in these jurisdiction cases, “best interests” of children must be applied in context and the court is not to embark upon a comprehensive analysis under s. 24. See: F. v. N., at paras. 61–62.

Caselaw as to s. 22(a) “habitual residence”

127Under the Hague Convention, “habitual residence” is undefined, and therefore courts take a contextual approach in determining the question. This hybrid approach does not simply ask and answer where the child lived during what period of time but considers “all relevant links and circumstances”, and the list for potentially relevant factors is not closed. See: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 41 and 42.

128In previous cases, such as Geliedan v. Rawdah, the Ontario Court of Appeal confirmed that the CLRA is a complete code for determining habitual residence and that Hague Convention cases do not apply. This stands to reason given that the legislation specifically defines habitual residence under s. 22(2), which states that it is the last place where the child resided. See: Geliedan v. Rawdah, 2020 ONCA 254, at para. 28.

129In a more recent decision, Zafar v. Azeem, the Ontario Court of Appeal stated that the test for determining habitual residence under the Hague Convention applies equally to the determination of a child’s habitual residence under the CLRA. The discussion demonstrates that resolving the question is not simply about asking and answering where the child last lived and for what period of time. See: Zafar v. Azeem, 2024 ONCA 15, at para. 74.

130In Dunmore v. Mehralian, the Supreme Court of Canada confirmed that, while there are important differences in the principles bearing on cases that fall within and outside the Hague Convention, it remains true that residence is a contextual and factual concept that should not be encumbered by unnecessary rigidity. As with the approach adopted in Balev, the court should consider all factors relevant to a child’s residence because this is the approach that best protects children. The guiding principle is whether the child was at home there. See: Dunmore v. Mehralian, 2025 SCC 20, at para. 6.

131The Supreme Court then provided a non-exhaustive summary of some of the jurisprudence that guides the interpretation of “resided” for the purposes of s. 22(a):

i. The physical presence in a jurisdiction at a point in time is neither necessary nor sufficient for residence;

ii. Permanence is not necessary for residence (but excludes transient situations, like vacationing);

iii. For very young children who may not have objective ties to a place, the ties of those who are taking care of them may weigh more heavily in the analysis;

iv. A child may reside in more than one jurisdiction at any given time.

See: Dunmore, at paras. 63–67.

132The father’s position that the children were habitually resident in Dubai is based largely on physical presence in the jurisdiction. The children lived in that geographic location for about 18 months, from September 2024 to March 2026, that is, until the Respondent unilaterally changed their residence from Dubai. He also relies on the fact that in 2024, the parties negotiated where the Respondent would reside with the children, and it was understood by both parties that the Applicant would follow, even if the date was not fixed.

133The mother and the OCL, on the other hand, take a contextual approach. They point to the children’s statements that they are at “home” with their primary caregiver.

134Counsel for the Respondent submits that the children’s links to London, Ontario are rooted in the mother’s links: she has extended family and she has secured (albeit remote) employment in London, Ontario; therefore, by extension, the children are resident in London as well since they rely on the mother for stability and to create a home for them.

135The mother has not resided in London, Ontario since at least 2010. Her employment contract was secured after she relocated and therefore should not be considered as a basis for establishing a connection to London, Ontario, particularly in light of the fact that she was offered significant input into the geographic location in which she could work. The children have resided in three different locations since arriving in Canada: with their maternal uncle in Toronto, their maternal aunt in London, and their maternal grandfather in London. The Respondent has secured a townhouse in London, representing their fourth residence in three months.

136The OCL also relies on the children being content in their new situation. I find that the connections they have formed in Ontario, particularly with their new school and the friends they have made at school, are recent and were made only since March 2026. Post-retention evidence should not be considered, and even if I did so, I do not find that the connections are sufficient to create a meaningful connection to London, Ontario. I also note that even though the older child told the OCL clinician that she considered herself mostly Canadian, initially, when asked where she would like to live, she answered “Mexico!” It was only when asked about her preference as between Canada and the UK that she chose Canada. That may be in part because their mother resides in Canada and both children were clear in their preference to remain in the primary care of their mother.

137A relocation by self-help will not establish jurisdiction. A parent cannot secure a new habitual residence for a child by surreptitiously removing them from their home to another country. See: Mehta v Gandhi, 2016 ONSC 2453, at para. 24.

138On the evidence, I find that the children’s habitual residence was Dubai, UAE. The children were integrated in the community and culture in Dubai. They were enrolled in and attended private school there; their medical practitioners were there; they had friends and engaged in activities there; Juana was enrolled in crocheting, basketball and writing club; and Serene enjoyed “skating on the land.” The Applicant and extended family visited the children while in Dubai.

Caselaw as to 22(1)(b)

139Pursuant to s. 22(1)(b) of the CLRA, if the child is not habitually resident in Ontario but the court is satisfied that all six of the enumerated factors are fulfilled, the court may assume jurisdiction. See: Murray v. Ceruti, 2014 ONCA 679, at para. 24.

140For the reasons that follow, I find that some but not all six criteria are met.

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

141This criterion is satisfied.

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

142I find that although there is evidence concerning the children’s best interests in Ontario, there is not substantial evidence at this time, and to the extent that there is, it was created by the Respondent’s unilateral decision to relocate.

143The Respondent submits that she resides in Ontario, and as the children’s primary caregiver she would be able to provide substantial evidence to support an argument regarding the children’s best interests being met in Ontario. I do not accept this argument because it would unfairly favour primary caregivers who abscond with children.

144The Respondent’s position is that the evidence would be provided by the children’s teachers, coaches and family network in Ontario.

145Although many witnesses who could be called to testify may reside in Ontario, that evidence can be given by affidavit or by videoconference. It is no longer necessary to be present geographically to participate in a court proceeding, as we have seen at this trial.

146Given my finding that the Respondent has not provided substantial evidence that the best interests of the children is available in Ontario, this court cannot assume jurisdiction pursuant to s. 22(1)(b). I will nonetheless address the other criteria under this section.

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

147This criterion is satisfied.

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

148This criterion is satisfied.

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

149The children have family who reside in Canada, and the uncontradicted evidence is that they enjoy spending time with their cousins. These relationships are important to the children and establish a connection to Ontario. However, their strongest familial connection apart from their mother is their father, and he does not reside in Canada.

150Both children are Canadian citizens, which also establishes a connection to Ontario. However, they have visited Canada to visit family only a few times. Both children described Dubai to the OCL clinician as “home”.

151The children have resided in Ontario for less than three months, and most of the other examples the Respondent gives to establish a real and substantial connection to Ontario (such as the children’s school attendance, their friendships, application for OHIP cards…) occurred after March 7, 2026.

152Evidence of the children’s memories of their school or their friends in the UK, or lack thereof, does not strengthen their connection to Ontario. Most of their memories and attachments are associated with Dubai, not with Ontario or the UK, which is consistent with their ages and the length of time that they resided in Dubai before coming to Canada.

153Although I find that the children have some connections to Ontario, they are not “real and substantial”.

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

154It would be a rare result for the court to find that the children do not have a real and substantial connection to Ontario, that there is no substantial evidence concerning their best interests in Ontario, but that on a balance of convenience Ontario remains the appropriate jurisdiction.

155It was submitted that on a balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario, in part because the children have not resided in the competing forum, the UK, for nearly two years and there is no status-quo daily life for the family to resume there.

156The Respondent selected London, Ontario as her forum of choice. The Applicant has no ties to Ontario and did not participate in selecting that jurisdiction. The Applicant prefers that the parties litigate in the court of England and Wales where they already have ongoing proceedings in which child support is being addressed and there is a scheduled court date in July. The Respondent agreed to that forum for her divorce proceedings which were commenced while she resided in Dubai. On a balance of convenience, there is no reason to prefer Ontario over the English court.

Caselaw Regarding Serious Harm

157Pursuant to s. 23 of the CLRA, even where jurisdiction would otherwise be declined under s. 22, the court can still assume jurisdiction if the children, on the balance of probabilities, would suffer serious harm.

158The burden of proof is on the person alleging serious harm. See: Ojeikere v. Ojeikere, 2018 ONCA 372, at para. 69.

159In assessing what constitutes “serious harm”, a judge is not to replicate the best interests analysis, which will be conducted at the subsequent parenting/custody hearing. See: Thomson v. Thomson, 1994 CanLII 26 (SCC).

160A best interests inquiry is a complex, comprehensive and comparative analysis focused on optimizing a child’s many interests. A serious harm inquiry is focused on discrete threats that could potentially imperil a threshold of well-being. Not every suboptimal set of circumstances constitutes serious harm: the serious harm standard must operate at a higher threshold. See: Ojeikere, at para. 107.

161The assessment of serious harm is an individualized, child-centred assessment. It is highly factual and discretionary and involves weighing various factors. See: F. v. N., at paras. 71 and 72.

162Return orders should not become a vehicle for punishing the abducting parent. The relevance of the abducting parent’s conduct is assessed from the child’s point of view. See: F. v. N., at para. 71.

163Separation from a primary caregiver, in and of itself and without regard to the individualized circumstances, will always rise to the level required under s. 23. See: F. v. N., at para. 78.

164A relevant factor in a serious harm analysis may be the inconsistencies between the family law in the foreign jurisdiction and in Ontario. Where the ultimate question of custody will be determined by the court on the basis of the best interests of the child, inconsistencies between the local and foreign legal regimes will usually not amount to serious harm. See: X.L. v. C.B, 2024 ONSC 3895, at para. 220.

165Non-physical abuse and/or coercive control is deeply harmful to the victim and can wear down and break a sense of autonomy and worth. It is real and deserves careful recognition. Caution must be given when labelling stressful and regrettable marital conflict as “abusive” or “coercive” as these labels carry significant implications in family law. A court need not determine whether the parties’ conflict meets the definition of “family violence” under s. 23, under Ontario law. The court’s sole responsibility at this stage is to decide whether returning the child would expose her to a future grave risk of harm. See: Pruitt v Pruitt, 2025 ONSC 3405.

166When assessing the severity of the harm, judges should consider whether undertakings made by the left‑behind parent could be joined to the return order made pursuant to s. 40 of the CLRA to address any other aspect of the anticipated risk of harm to the child if there is satisfactory evidence that they would be respected and enforceable in the foreign jurisdiction. See: F. v. N., at para. 81.

167Given the totality of the facts in this case, I find that the Respondent has not established on a balance of probabilities that the children would suffer serious harm if they were removed from Ontario.

168The court of England and Wales is a Hague signatory country, and custody of the children will be determined by the court on the basis of their best interests.

169Both parties and the children are citizens of the UK with all the rights that citizenship entails. This is not a case where the Respondent would face societal barriers in the foreign jurisdiction or in asserting her parenting claims in court.

170Although a possible separation from a primary caregiver in itself may not give rise to a risk of serious harm, Juana and Serene are attached to their mother and a separation from her could result in emotional harm to the children. (No expert evidence was led about the level or nature of the potential risk of harm). The Respondent gave evidence that she would return to the UK if ordered to do so; however, it would be difficult.

171The children’s evidence is that they feel safe with their father, and in the absence of any objective or third-party evidence suggesting otherwise, I cannot make a finding that they would suffer serious harm if in their father’s care.

172The parties have a strained relationship which has been made worse following the Respondent’s relocation. The children described the parents yelling at each other over the telephone. The parties must be more mindful of their behaviour and shield the children from their conflict. It is not appropriate to have adult discussions in their presence. The parties also both gave evidence of positive qualities of the other parent and have demonstrated periods of amicable co-parenting post separation. The level of conflict between these parents does not suggest a future risk of serious harm.

173The Respondent gave evidence of a concerning incident in September 2021 wherein the Applicant grabbed her and removed her from the room during a verbal altercation. The Applicant acknowledged the incident but downplayed the severity of his actions. I find the Applicant’s response concerning but not evidence that the children would be at grave risk if removed from Ontario. The children’s evidence is that their father is fun, that they are comfortable in his care and that he has never hit them.

174There was substantial evidence in the exhibits attached to the Respondent’s affidavit to support her evidence that she struggled financially, largely due to the father’s delinquent child maintenance (support) payments, late payments in tuition and interference in the sale of the matrimonial home. Although this may be evidence of coercive control, I do not find it gives rise to a serious risk as required under s. 23.

175A recurring theme in the mother’s evidence is that she wanted the father to be more involved and that she wanted supports. Following the parties’ separation, she was alone in Cambridge, UK, while the Applicant chose to reside in London, UK. Then, she went to Dubai and the Applicant was slow to follow, so that she found herself again on her own to care for the children. Placing the children in a situation where they will require third-party care does not give rise to serious harm.

176The court does not blame the mother for leaving Dubai in the circumstances in which she found herself on March 5, 2026. Indeed, she acted appropriately in removing the children from a dangerous situation. However, she needed to keep the father involved and give him the opportunity to provide input.

177The unique circumstance of this case is that neither party seeks an order to return the children to the country from which they were removed. The Applicant seeks an order that the children return to a city in which none of the parties currently reside. Unlike most jurisdiction cases, the children have no “status quo” daily life in either one of the two competing plans.

178The children have resided in three (or, by the time this decision is released, perhaps four) homes within Ontario since they arrived in March 2026. They may be slightly more used to their life in Canada because the Respondent had a head start in her plans, but I do not find that they are settled in their new home environment yet.

179Meanwhile, the father’s employment and housing instability is temporary and was caused in part due to the Respondent’s abrupt and unilateral departure from the UAE.

180Had the Applicant sought an order returning the children to Dubai, I would have found that the children would suffer serious harm considering that neither party is a citizen nor a resident of the UAE and that the children do not have status in the UAE.

181There is nothing in the language of section 23(b) that requires the finding of serious harm be tied to the place from which a child was removed. The wording requires the court to contemplate that, on a balance of probabilities, the child would suffer serious harm if removed from Ontario. Since the Applicant’s plan is to bring the children to the UK, the risk of harm must be assessed in that light. I cannot find that there would be a risk of serious harm in removing the children from Ontario to bring them to the UK.

182I do not find on the evidence that the court should assume jurisdiction pursuant to s. 23 of the CLRA.

s. 69 Parens Patriae Jurisdiction

183In an alternative argument, the Respondent’s counsel submits that this court could exercise its parens patriae jurisdiction in finding there is a legislative gap in the CLRA or “uncontemplated scenario” where neither party wishes to return to the place in which the children immediately resided prior to Ontario.

184In Eve (Mrs) v. Eve, LaForest J., writing for the Supreme Court of Canada held, “… even where there is legislation in the area, courts may use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit.” E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), at para. 42.

185I find that in this case, there was insufficient evidence to substantiate that the court needs to act to protect these children. Evidence of the OCL clinician established that the children disclosed that they love and feel safe with both parents. The children are not in danger in the care of either parent.

186I decline to invoke the court’s parens patriae jurisdiction in this case.

Section 25

187As I did not find Ontario has jurisdiction, this section does not apply.

Wrongful Removal

188The Applicant emphasized many times in his submissions that the Respondent’s actions were wrongful, because of the lack of notice and consent. The Respondent’s position is that the Applicant gave implied consent to relocate to Canada and that her actions therefore were not wrongful. The OCL submitted that this is a relocation case under the guise of a wrongful retention.

189The Respondent removed the children from their habitual residence in Dubai without notice to the Applicant. I find this was a wrongful removal. I also find that she wrongfully retained the children in Ontario when she started making parenting decisions for the children while misleading the Applicant about her intentions. However, even if there was no wrongful retention/removal, this finding is not required to make jurisdictional orders under ss. 22, 23, 69 or 40(b) of the CLRA.

Caselaw – Section 40(a) and (b)

190Three remedies are available under s. 40 when jurisdiction is declined. First, the court can make an interim custody order in the best interests of the child, in order to arrange for their care until a final decision is made on the merits or until it can be enforced. The court can also stay the application on conditions, allowing the children’s return to be delayed until the court is satisfied that proper arrangements have been made and that the competent authorities are seized of the dispute, if necessary. Finally, the court can order the return of the child to the place it deems appropriate. See: F. v. N., at para. 96.

191As with any decision affecting children, the court must consider the best interests of the child in making a s. 40 order. Due to the interim nature of such orders, courts should not embark on a detailed analysis of the s. 24(3) best interests factors set out in the CLRA. Section 40 orders are not custody orders on the merits. See: F. v. N., at para. 96.

192If the children were ordered to reside in Cambridge, UK as requested by the Applicant, I find on the evidence that the Respondent would also return to Cambridge. When determining whether this order would be in the best interests of the children, I consider whether it is in the children’s best interests that I order the family to relocate to a city where they have not lived as a family since July 2023.

193Juana may have said it best when asked by the OCL how she would feel if both her parents lived in Cambridge: That would be really weird. Why would everyone move back to Cambridge?

194I have concerns about the viability of this plan for either party. Destabilizing the parents by forcing both to obtain housing and employment in a new city within a very small timeframe cannot be beneficial to the children.

195The father is not yet employed in Cambridge and there is no guarantee of employment there. The mother works remotely, but her employment is tied to the North American market, not the UK. Although her employer is based in London, UK, there is no guarantee that she would be able to change employment or continue working for her present employer if she relocated. It is premature to order the parties to reside in a city that could well be inconvenient to both. If long commutes are necessary because the family is tied to Cambridge, this would not be beneficial to the children.

196I am also mindful of the agreement by the parties to relocate outside of the UK and that, years ago, they decided the UK would not be their long-term plan because they had no supports there. Nothing has changed in that respect; they still have no familial supports in Cambridge.

197Juana and Serena are intelligent and resilient children and are used to travelling the world, even travelling from the UAE to Egypt on an unaccompanied minors program at very young ages. Although submissions were made that it would be jarring and disruptive to the children to be subject to a further relocation, the evidence suggests otherwise. Juana stated that she would be very happy to move back to Cambridge, UK and that friends live there. Serene also recognized that she would like to see her friends there. Given the children’s ages, these views are important but not determinative of the issue. Their preferences must also be taken in context, and they did not have any specific information of where they would live or go to school, whether their standard of life would change, what hours their parents would work, who would babysit them before or after school (if anyone), how often they would get to travel to see extended family, and so on.

198While the matter is being determined on the merits, the Applicant should be permitted to have meaningful time with the children over the summer holidays. The Respondent requested an order requiring the children to remain in Ontario because she feared the Applicant would overhold them. That submission was bold given her relocation history with the children. I heard no evidence to suggest that the Applicant would harm the children by attempting to sever their relationship with the Respondent nor that he would not respect a court order. The Respondent did not lead any evidence to suggest that time with the paternal family was not in the children’s best interests.

199This order is temporary and applies only until the matter is determined on the merits in the proper jurisdiction. It is not intended to help the Respondent establish status quo in Canada. The Applicant may feel that this order is a punishment of sorts; his lack of plan is due to the Respondent’s hasty decisions in which he was not permitted to participate and his life has been hanging in the balance. He must have the opportunity to put forth a plan of care for the children that the court can properly assess.

200A s. 40 order is not about blame or reward. I am tasked with making an order in the best interests of the subject children. I find that the interests of the children in this case are served by:

i. Ensuring that both parties have meaningful participation in making decisions for the children;

ii. Ensuring that the children spend as much time with both parties as is reasonable given the distance between the families’ residences; and

iii. Allowing the children to spend time with their extended paternal family on holidays, as they enjoyed prior to March 2026.

ORDER

201I therefore make the following orders.

On a final basis:

1. The Ontario Superior Court of Justice does not have jurisdiction to determine the parenting issues pertaining to the children, Juana Aker, born August 8, 2016, and Serene Aker, born October 2, 2019, pursuant to s. 22 of the CLRA.

Pursuant to s. 40 of the CLRA:

1. The children shall reside in the care of the parties, on the following schedule:

a) The children shall remain in the care of the Respondent until June 28, 2026.

b) The children shall be in the care of the Applicant for the remainder of the summer, from June 28, 2026 until September 1, 2026, at which time they shall be returned to the care of the Respondent in London, Ontario.

c) Thereafter, the parenting schedule shall be as follows:

(i) If the Applicant relocates to Cambridge, England and the Respondent remains in London, Ontario:

(1) The children shall be in the care of the parties on an alternating monthly basis until such time as the parenting issues are decided in the court of England and Wales or the parties come to a parenting agreement between themselves;

(2) Exchanges shall occur on the first Saturday of the month, with the children being in London, Ontario with the Respondent in the month of September, then with the Applicant in Cambridge, England in the month of October, and so on.

(ii) If the Applicant does not relocate to Cambridge, England:

(1) The children shall reside with the Respondent in London, Ontario and shall spend 10 consecutive days each month with the Applicant;

(2) The parties shall alternate financial responsibility for the costs of travel each month.

(iii) If both parties relocate to Cambridge, England:

(1) The children shall reside with the Respondent, and the Applicant shall have reasonable parenting time with the children in accordance with his work schedule.

2. Each party shall be entitled to have video calls with the children while they are in the care of the other party. Such calls shall be approximately 30 minutes in length, subject to the views and preferences of the children. The parties shall select times which are convenient to both parties, taking into consideration the children’s schedules, the parties’ work schedule and the differing time zones. The calls shall occur at least three times per week on alternating days.

3. The Applicant and the Respondent shall share joint decision-making responsibility for the children.

a) Both parties may make medical appointments for the children. Once an appointment is made, the party making the appointment shall immediately notify the other party of the appointment and provide the name and contact information of the treating practitioner;

b) The parties shall together determine which school(s) the children shall attend for the 2026/2027 school year to accommodate online learning given the children’s international schedule. Both parties shall be named as contacts at the children’s school(s).

4. On or before June 19, 2026, the parties shall make parenting claims in the ongoing court proceeding in the jurisdiction of England and Wales.

202If the parties cannot agree on costs, each may submit a bill of costs, any offers to settle and five-page submissions, double-spaced using 12-point font, by June 19, 2026. Submissions shall be directed to my attention by email to LondonUFCAdmin@ontario.ca.