The father claimed wrongful detention by the mother
The Court of Appeal for Ontario has ruled that a father’s motion to compel the return of his children to the United Arab Emirates must be stayed, despite the mother having taken the children to Ontario and refusing to return to their habitual residence.
In N. v. F., 2021 ONCA 688, the appellant travelled with her children to Ontario while the respondent remained in UAE, expecting their prompt return. However, the appellant later refused to return. The respondent sought return of the children before the Ontario courts, citing their wrongful detention. The appellant argued that the children would suffer serious harm if removed from Ontario, since they would be involuntarily separated from her. She further alleged that the rules of the UAE courts are characterized by gender-based inequalities, which may preclude the consideration of the best interests of the children.
The application judge declined to exercise jurisdiction over the case, stating that the appellant failed to satisfy the balance of probabilities of the alleged harm the children would suffer, and ordered that the children return to UAE.
The appellant filed an expedited appeal with this Court, while in the meantime, the respondent applied for divorce and a guardianship and custody order in the UAE. The divorce was granted before this Court’s decision was released.
The Court dismissed the appeal and upheld the application judge’s decision to decline the exercise of jurisdiction.
The appellant intends to apply for leave to appeal to the Supreme Court of Canada and filed with this Court a motion to stay the order to return the children to the UAE.
The Court stayed the order pending the appeal. “Neither the proposed application for leave to appeal with the Supreme Court nor the request for stay are frivolous or clearly without merit.” The Court acknowledged that the stay would result in the children remaining largely separated from their father, which is not in their best interest. However, the Court ruled that the risk of irreparable harm is diminished considering that the respondent had been able to maintain a meaningful bond with the children despite their physical separation. On the other hand, there would be risk of irreparable harm if the stay was not granted.
