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In a dispute over the habitual residence of a child, an Ontario court recently ordered the return of a child to her mother in the United Arab Emirates (UAE) after the father had abducted the child and brought her to Ontario. The court condemned both the abduction and the father’s subsequent actions.
What Happened?
Both the mother and father were born in Aleppo, Syria and are Syrian citizens. The mother has resided in the UAE for her whole life on a series of visas, and the father has also resided (and worked) in the UAE for at least ten years. Neither party could become a UAE citizen, but could remain there by renewing their visas.
The parties were married in the UAE in July 2013; their daughter was born in August 2014. In July 2015 all three immigrated to Canada, where they obtained permanent residency cards. The parties returned to the UAE in September of that same year. The mother claimed that the family had agreed to return to the UAE indefinitely, whereas the father claimed that the family returned to sell their home, and get other affairs in order.
All three parties remained in the UAE until August 2016. On August 15, 2016, the father abducted the daughter from the family home, hid the mother’s passport, and boarded a rushed midnight flight to Canada. The mother attempted to track the father and child down, and was informed by the father’s family that he would be returning to the UAE at the end of September. In late August, the father finally contacted the mother and provided her with the address of where he and the daughter were living. He did not return to the UAE in September as suggested by his family.
The father filed an application for custody in an Ontario court in October 2016. The mother filed a divorce and custody application in the UAE on the day she was served with the father’s application, claiming that she had not done so earlier as she had understood that the father would be returning, and he had continued to pay the lease on the home where they had all been living prior to the abduction. Once she had been served with his application she understood that he would not be returning and that she had to take legal action.
The father retained UAE counsel and opposed the mother’s application. He was granted six adjournments in a short period of time claiming, among others things that both his and the daughter’s passports had been stolen and they could therefore not fly to Dubai.
The father maintained that the daughter could not be returned to the UAE because she had no permanent status there. The daughter would only be able to stay in the UAE if the mother was able to renew her visa; however, the mother could only do so if she was employed, or was married to an employed person, and that she had only been able to live in the UAE because he had been working there. Since he had left, she would not be able to renew her visa, and therefore, neither could the daughter.
The Hague Convention and the Children’s Law Reform Act
The UAE is not a signatory to the Hague Convention, and therefore it did not apply in this matter. Rather, the relevant legislation was the Children’s Law Reform Act (the CLRA).
Using the CLRA, the three issues that the Court analyzed were:
- Where was the child “habitually resident” when she arrived in Ontario in August 2016?
- If the child was not habitually resident in Ontario at that time, does an Ontario court have jurisdiction over this matter?
- Should an Ontario court exercise its jurisdiction to make a custody order in order to prevent serious harm to the child?
Where is the habitual residence of the child?
With certain exceptions, an Ontario court can only assume jurisdiction over a custody application if the child in question is habitually resident in Ontario.
Here, the onus was on the father to establish the habitual residence of the child. He argued that the daughter is a permanent resident of Canada and lived in Ontario from July to September 2015. The parties only returned to the UAE to put their financial affairs in order with the intention of returning to Ontario to reside. He further argued that since the child obtained permanent residency status in Ontario, she became habitually resident in the province, and did not abandon that habitual residence during the “transitional period” the family had following their return to the UAE. He further argued that he had left the UAE with the mother’s permission and that this was not an abduction.
The mother argued that the child was habitually resident in the UAE since, at the time that the father left with her, all three of them had been living in the UAE. Yes, the parties had immigrated to Canada in 2015, but after less than two months, they decided to return permanently to the UAE. She stated that all objective evidence supported this position: the father was still employed in the UAE, he had rented a fully furnished home on a one year lease starting in March 2016, left all furnishings behind in the apartment when he left for Canada in August 2016, and also left all of the child’s clothing and belongings. Further, there had been no joint plan to return to Canada and there was no evidence, other than the father’s statements, that the mother had ever intended to return to Canada with the child.
The Ontario court found the father’s position “untenable”, and agreed with many of the mother’s arguments. Therefore, the habitual residence of the mother, the father, and the child at the time that the child was abducted was deemed to be the UAE.
Should the Ontario court accept jurisdiction even if the child is not habitually resident here?
The child was in Ontario when the father’s application for custody was filed. However, all evidence about the child was in the UAE, where she had lived with both parents for almost the entire duration of her life. Prior to the abduction, she had only spent two short months in Ontario in 2015.
The child had no real and substantial connection to Ontario prior to arriving here after she was abducted from the UAE.
Should the court accept jurisdiction to prevent serious harm to the child?
According to the father, the mother had a terrible anger management problem, which had resulted in her physically disciplining the daughter on repeated occasions. He argued that there were no protections against hitting children in the UAE as there were in Ontario, and if the child was returned to the UAE, the mother would beat her with no consequences.
The mother denied any corporal punishment, stating that there had been no evidence of any physical abuse while the child had been living in the UAE. Similarly, there was no evidence that the father had ever complained to anyone about the mother’s alleged physical abuse. Rather, the evidence had established that the mother had cared for the child while the father worked long hours outside the home, and that the child had never been alone with the father until after he kidnapped her. Further, there was a child protection system in the UAE with a similar mandate to children’s aid societies in Ontario.
The court found that the only evidence of the probability of serious harm befalling the child was through covertly made recordings of phone calls the father had with the mother following the abduction, as well as coached videos of the child.
The court warned that there was a “strong public policy” purpose behind not admitting taped phone calls in family law cases. In any event, even if the court were to consider the tapes made by the father, the contents of those tapes were not helpful to his position. The father had made the tapes for the sole purposes of inducing the mother into making an admission that she beat or otherwise hurt the child. This was done at a time when the mother was emotionally desperate and wanting any contact with her child. On the tapes, the father asked the mother leading questions and made her repeatedly insist that she would no longer beat the child. The court found that “if [the mother] had never hit her child before it would not be difficult for her to commit to never doing it again especially if such a statement held out the promise of contact with her child”.
The court ultimately found the father’s actions in creating these tapes “very telling” and condemned his behavior:
He claims not to have abducted the child but he knows that the circumstances of her travel points to abduction. Within a few days after arriving in Ontario, and before telling the mother where her daughter is living, he started to work on building a defense to his actions. He purposely tried to manipulate the mother to create evidence that he thought he could use to argue that there would be a probability of serious harm to the child if she was returned. He knew that he had no such evidence before he made those taped calls. The transcripts show that he is determined to obtain an admission from the mother. The videos, which were described in the parties’ affidavits, show clear evidence of manipulation of this young child. This father removed his 2-year-old daughter from her mother’s primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child. I find that the father’s actions in manipulating both the mother and the child to be unconscionable and deserving of censure from this court.
The court ordered the child immediately returned to her mother, who would then return her to her “place of habitual residence” in the UAE, and gave Peel Regional Police, the OPP, the RCMP, and Border Services jurisdiction to enforce the order if necessary.
If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519.973.1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation? Can a relocation be blocked or disputed?
