



COURT OF APPEAL FOR ONTARIO

CITATION: N.
    v. F., 2021 ONCA 688

DATE: 20211005

DOCKET: M52824 (C68926)

Paciocco
    J.A. (Motion Judge)

BETWEEN

N.

Respondent/Respondent
    on Motion

and

F.

Appellant/Moving
    Party on Motion

Fareen L. Jamal
    and Fadwa Yehia, for the appellant

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

Heard: September 27, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

F., the appellant mother (the mother), brings
    a motion pursuant to s. 65.1(1) of the
Supreme Court Act
, R.S.C.,
    1985, c. S-26, for a stay of proceedings relating to this courts decision from
    September 14, 2021 in
N. v. F.
,

2021 ONCA 614, pending her
    leave to appeal application to the Supreme Court of Canada. For the reasons
    that follow, I allow the motion and stay the proceedings, subject to the condition
    that the mother must file her application for leave to appeal to the Supreme
    Court of Canada within 45 days of the receipt of this courts decision of September
    14, 2021.

MATERIAL FACTS

[2]

The mother is the primary caregiver of her
    children, Z., a female child born in November 2016, and E., a male child born
    in November 2019. In June 2020, she travelled with the children to Ontario from
    Dubai in the United Arab Emirates (UAE), their habitual place of residence. N.,
    the childrens father (the father), remained in the UAE expecting their
    prompt return. In July, the mother notified the father that she and the
    children would not be returning to the UAE but would remain in Ontario.

[3]

The father promptly brought an application in
    Ontario in which he sought the return of the children. Since the UAE is not a
    signatory, he could not bring that application under the
Convention on the
    Civil Aspects of International Child Abduction
, Can. T.S. 1983, No. 35, as
    implemented in Ontario in the
Children's Law Reform Act
, R.S.O. 1990,
    c. C.12 (the 
Hague Convention
 as implemented in the 
CLRA
).
    Instead, he applied pursuant to s. 40 of the
CLRA
seeking a
    declaration that the mother wrongfully retained the children in Ontario, and an
    order that the children be returned forthwith to the UAE. In response, the
    mother argued that a parenting order should be made in Ontario pursuant to s.
    22 or s. 23 of the
CLRA
, thereby requiring the fathers s. 40
    application to be dismissed.

[4]

The application judge concluded that he could
    not exercise jurisdiction under

s. 22 of the
CLRA
as the
    mother had not established the she satisfied the requisite preconditions in s.
    22. I need say no more about this determination.

[5]

The application judge also declined to exercise
    jurisdiction under s. 23 of the
CLRA
because the mother had not
    satisfied him on the balance of probabilities that the children would suffer
    serious harm if they were removed from Ontario and returned to the UAE. Section
    23 of the
CLRA
, of central relevance to this motion, provides in
    relevant part:

Despite sections 22 and 4, 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,



(iii) the child is removed from Ontario.

[6]

The mothers primary submission in support of
    her claim that the children would suffer serious harm if removed from Ontario was
    that if the children were returned to the UAE they would involuntarily be
    separated from her, which is not in their best interests. She buttressed this
    submission by arguing that, in any event, even if she could return to and
    remain in the UAE, the UAE would not resolve the decision-making responsibility
    and parenting-time disputes at issue based on the best interests of the
    children. She maintained that Ontario should take jurisdiction of the matter.

[7]

With respect to the risk of separation, the
    mother relied on the fact that her legal status in Dubai was contingent on her
    husbands sponsorship, which can no longer be assured because of the breakdown
    of their marriage. She maintained that if the children were returned to the UAE,
    she would probably be unable to join or remain with them.

[8]

The application judge rejected the probability
    of separation, accepting the testimony of the husbands expert, Diana Hamade,
    that there were various options available to the mother to return to the UAE,
    including: a one-year grace period, sponsorship by her ex-husband, the purchase
    of property, or the use of a free zone if she rented an office. Moreover, the
    application judge accepted evidence that any emotional and psychological harm
    that may result from the childrens separation from their mother as the primary
    caregiver could be mitigated with proper support.

[9]

With respect to whether the courts in the UAE
    would resolve the decision-making responsibility and parenting-time disputes based
    on the best interests of the children, the mother argued that the UAE does not
    determine parental rights on this basis, and has gender-based inequalities in
    its legal rules that may preclude a consideration of the best interests of
    children. Like many other jurisdictions, the law in the UAE distinguishes
    between guardianship or decision-making authority, and custody or
    day-to-day care and physical custody of children. The mother argued that the
    UAE gives guardianship, i.e. decision-making responsibility, only to fathers; even
    if mothers receive primary parenting time with their children in their younger
    years, the law strips them of that entitlement and confers it on the fathers when
    male children turn 11 years of age, and female children turn 13 years of age.
    She argued that these rules are contrary to the best interests of the children.

[10]

Once again, the application judge rejected these
    submissions. In doing so, he accepted testimony from Ms. Hamade that the UAE
    would determine the decision-making responsibility and parenting-time disputes by
    making the best interests of the children paramount, a conclusion the
    application judge found to have been supported by the mothers own expert
    witness, Elena Schildgen, during her cross-examination.

[11]

He also found, based on his evaluation of the
    expert evidence, that a court in the UAE would incorporate into an enforceable
    court order the terms of a parental rights settlement between the mother and the
    father. Specifically, he found that a court in the UAE would incorporate the
    terms of the specific settlement that the father proposed to the mother in a
    with prejudice offer that was placed before the court. That settlement offer,
    if accepted by the mother and incorporated in a court order, would provide for
    shared decision-making, primary residence of the children with the mother, and some
    parenting time with the father.

[12]

In finding that the mother had not met her
    burden of establishing that the children would, on the balance of
    probabilities, suffer serious harm if returned to the UAE, the application
    judge also noted that there was no evidence that the children would be at risk
    of physical harm in the UAE. He noted, as well, the inability of expert
    witnesses to offer an opinion on whether the children would suffer serious harm
    if returned to the UAE.

[13]

Having rejected the application of ss. 22 and 23
    of the
CLRA,
the application judge exercised his discretion under s.
    40 of the
CLRA
, granting a declaration that the mother had wrongfully
    retained the children in Ontario, and an order that the children be returned
    forthwith to the UAE. The mother responded promptly with an expedited appeal to
    this court.

[14]

In the meantime, the father applied in the UAE
    for divorce and a guardianship and custody (decision-making responsibility and
    primary parenting time) order. The mother was served with notice of the UAE
    action but declined to participate. Prior to the release of this courts appeal
    decision, a UAE court granted the divorce, and gave the father both
    guardianship and custody, finding that the mother had relinquished her custody
    by wrongfully depriving the father of the enjoyment of his rights.

[15]

On September 14, 2021 this courts decision was
    released. Hourigan J.A. and Brown J.A. (concurring) dismissed the appeal,
    upholding the application judges decision to decline jurisdiction under ss. 22
    and 23 of the
CLRA
. They reasoned that the mother had demonstrated no errors
    of law or principle and had simply attempted to challenge the application
    judges findings of fact and mixed fact and law by rearguing the case. In
    dismissing the appeal, the majority concluded that deference is owed to the
    application judges findings. They also denied appeals from a battery of
    constitutional challenges the mother brought against s. 40 of the
CLRA
.

[16]

Lauwers J.A. dissented. He did not address the
    constitutional challenges and concluded that the application judges s. 22
    ruling was right. However, he found that the application judge erred in making
    an order pursuant to s. 40 of the
CLRA
when he should have found that
    Ontario has jurisdiction to make parenting orders pursuant to s. 23 of the
CLRA
.
    Specifically, he held that the application judge erred in his assessment of
    serious risk of harm by failing to assess the harm that could be caused by the
    forced involuntary separation of the mother from the children. In coming to this
    conclusion, Lauwers J.A. said at para. 281:

[This] risk of  harm emerges from the
    intersection of three different elements: the precariousness of [the mothers]
    residential status in Dubai; the uncertain status of the proposed consent order
    on which the trial judges decision hinged, particularly if [the father] were
    to change his mind and not take out the consent order in Dubai or to later
    countermand it, and the unacceptable nature of the allocation of parenting responsibilities
    between [the father] and [the mother] if the situation reverted to UAE law.

[17]

Lauwers J.A. also concluded that the
    application judge erred by accepting but not acting on expert evidence that
    brain development in infants is impacted when there is a loss of consistency that
    the primary caregiver provides. He said that the application judge made a palpable
    and overriding error, as well, in finding that the impact of separation on the
    children was unknown, when s. 23 specifically required him to determine the
    risk of harm on the evidence available to him. Lauwers J.A. said that no
    evidence is required to conclude that the indefinite separation of two young
    children from the parent who has always been their primary caregiver
    constitutes a risk of serious harm.

[18]

Additionally, Lauwers J.A. concluded that the
    application judge erred in failing to consider fully whether the fathers
    undertaking would be enforceable in the UAE, and by not making findings about the
    mothers recourse if the father rescinded his undertaking or later
    countermanded the consent order. Lauwers J.A. also concluded that the
    application judge failed to consider what would happen if the mother was forced
    to leave the UAE due to her precarious residency status, an important
    consideration given that she would be bound by the law of the UAE to live near
    the father of the children.

[19]

He concluded, as well, that the application
    judges finding that the best interests of the children is the paramount
    consideration in making parenting orders is inconsistent with the undisputed
    expert evidence that all fathers are assured guardianship (decision-making
    responsibility) in the UAE, even where giving this responsibility to a particular
    mother would be in the childrens best interests.

THE LEGAL PRINCIPLES

A.

Stays Prior to the filing of Leave Applications

[20]

A judge of the appeal court, whose order is
    being appealed to the Supreme Court of Canada, is authorized by s. 65.1(1) of
    the
Supreme Court Act
to order that the proceedings be stayed with
    respect to the judgment from which leave to appeal is sought, on the terms
    deemed appropriate. This authority may be exercised by a judge before the
    proposed appellant has served and filed a notice of leave to appeal if
    satisfied that the party seeking the stay intends to apply for leave to appeal
    and that delay would result in a miscarriage of justice:
Supreme Court Act
,
    s. 65.1(2).

[21]

The father does not contest the mothers claim
    that she intends to apply for leave to appeal to the Supreme Court of Canada,
    and I am satisfied that she does intend to do so. I am also satisfied that a
    miscarriage of justice would result by delaying the application until such leave
    to appeal is filed by the mother.

[22]

Neither the proposed application for leave to
    appeal, nor the request for a stay are frivolous or clearly without merit. If
    this court was to delay hearing the stay application until the leave to appeal
    application is completed and filed, the father would remain free to remove the
    children to the UAE before the merits of the stay could be determined. This
    would frustrate the stay order by giving full effect to the order that the
    mother seeks to be appealed. Even if the children were returned to Canada in
    response to a subsequent stay order, it would not be in the best interests of
    the children to have experienced the unnecessary instability in their care by
    temporarily being removed to the UAE. I will therefore consider the stay
    application on its merits, without delay, and prior to the leave to appeal
    application being filed.

B.

The GENERAL legal test

[23]

A consideration of whether a stay should be
    ordered in the interests of justice pending a determination of leave to appeal
    begins with consideration of the factors identified in
RJR-MacDonald Inc.
    v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, namely: (1)
    based on a preliminary assessment of the merits of the case, whether there is a
    serious issue to be tried; (2) whether the applicant would suffer irreparable
    harm if the application is refused, and (3) which party would suffer greater
    harm from granting or refusing the stay pending a decision of the leave to
    appeal application, on its merits:
J.P.B. v. C.B.
, 2016 ONCA 996, at
    para. 14. Of course, when determining whether a stay is in the interests of
    justice, the strength of one factor may compensate for weakness in another:
J.P.B.
    v. C.B.
, at para. 15.

(1)

Serious Issue to be Tried

[24]

Ordinarily, a low threshold is to be applied
    when determining whether there is a serious issue to be tried. Indeed, it is enough
    to show that, on a preliminary assessment, the claim is not frivolous or
    vexatious:
RJR-MacDonald Inc
, at para. 44;
2257573 Ontario
    Inc. v. Furney
, 2020 ONCA 742, at para. 22.

[25]

I accept that this low threshold is raised where
    the application is to stay pending leave to appeal to the Supreme Court of
    Canada, given that an appellate court has already ruled on the question:
Leis
    v. Leis
, 2011 MBCA 109, at para. 5. In my view, however, that raised
    threshold is tempered where, as here, there is a dissenting appellate decision.

[26]

I also accept that it is relevant in determining
    the seriousness of an issue to be tried that an appeal is being brought from a
    discretionary decision:
BTR Global Opportunity Trading Limited v. RBC Dexia
    Investor Services Trust
, 2011 ONCA 620, at para. 25. In
    considering this factor, however, it is important to bear in mind that
    deference is not owed if errors of law or principle have been made in the
    exercise of such discretion. Where this may be so, the discretionary nature of
    the decision under appeal is of lesser importance in evaluating the seriousness
    of the issue to be tried.

[27]

Finally, and of most importance, given that the
    application is to stay the proceedings pending an application for leave to
    appeal to the Supreme Court of Canada, a motion judge must consider whether
    leave to appeal could realistically be granted. As described by Laskin J.A., in
BTR Global
, at para. 18:

Under s. 40(1) of the
Supreme Court Act
,
    R.S.C. 1985 c. S-26, the Supreme Court of Canada typically grants leave to
    appeal only in cases of public or national importance. Thus, a provincial
    appellate court judge hearing a motion for stay pending leave to appeal to the
    Supreme Court of Canada must take account of the stringent leave requirements
    in the
Supreme Court Act
.

[28]

The mother argues that there are serious issues
    to be tried that do raise issues of public importance, including: (1) the
    removal of children to non-
Hague
countries, a broad issue that has
    never been considered by the Supreme Court of Canada; (2) the need to establish
    clear principles to be applied in determining serious risk of harm under ss. 23
    and/or 40(3) of the
CLRA
, including whether the standard to be used
    when assessing the risk of serious harm under s. 23 is less stringent than the
    standard to be used in
Hague Convention
cases, and whether the rights
    of the children contained in the
Convention on the Rights of the Child
,
    20 November 1989, Can. T.S. 1992 No. 3 (entered into force 2 September 1990) apply,
    and (3) the constitutional challenges to the return provision in s. 40(3) of
    the
CLRA
. In response, the father counters that this case raises only
    factual disputes particular to this litigation, and that the mother identifies
    no errors in the majoritys constitutional law analysis.

[29]

There is much merit in the positions taken by the
    father. The mother has alleged no errors of law or principle in the majoritys
    constitutional analysis and Lauwers J.A. did not dissent on the constitutional
    points. It may be that serious constitutional issues to be tried can be
    identified but none have been identified for me and none are readily apparent.

[30]

Moreover, the fact that the Supreme Court of
    Canada has yet to consider the removal of children to non-
Hague

Convention
countries is of no moment if this case does not raise issues of law or
    legal principle that have broader application. I agree with the father that most
    of the issues in the appeal before us were questions of fact or mixed fact and
    law.

[31]

I am nonetheless persuaded that there are
    serious issues that arise from Lauwers J.A.s dissent that could inspire the
    Supreme Court of Canada to grant leave to appeal.

[32]

First, it is not uncommon in other contexts to
    determine the seriousness of a risk based on a calibration of the likelihood
    that a risk will arise, and the degree of harm that will occur if that risk
    does arise. Lauwers J.A.s concerns about the separation of the children and the
    mother, and the enforceability of the with prejudice agreement may not simply
    rest on a factual dispute with the majority, but on the proper outcome in non-
Hague
    Convention
cases when the risk of separation or unenforceability may not
    be more probable than not, but where those outcomes, if they occur, could pose
    significant risks to the welfare of the children.

[33]

A second and related consideration is how the
    onus of proving serious risk operates when there is a risk of separation and
    yet an inability on the evidence to predict its impact. How significant must
    that risk be?

[34]

Finally, in my view, there is a serious issue to
    be tried relating to whether gender inequalities in the law of the UAE, as a
    matter of law, undermine the integrity of best interest determinations.

[35]

These may well be issues of public importance
    that could attract leave to appeal to the Supreme Court of Canada,
    notwithstanding that this is an appeal of a discretionary order. If the
    decision under appeal does not comport to the legal principles that these
    questions give rise to, the importance of deference evaporates.

(2)

Irremediable Prejudice to the Applicant

[36]

Although it is customary at this stage of the
    analysis to consider prejudice to the applicant  in this case, the mother  in
    custody cases where a stay of proceedings is sought the overriding
    consideration  is the best interests of the child. In other words, the court
    must be satisfied that it is in the best interests of the child to grant a
    stay:
D.C. v T.B.
, 2021 ONCA 562, at para. 9;
K.K. v. M.M.
,
    2021 ONCA 407, at para. 17.

[37]

This principle may not apply in
Hague
    Convention
cases where the best interests of the child are compromised by
    postponing the determination of the childrens best interests in the country
    where they are habitually resident:
J.P.B. v. C.B.
, at para.
    33. Things are different, however, in non-
Hague Convention
cases.
    There can be no assumption that a non-signatory state will determine parenting
    rights based on the childrens best interests:
Geliedan v. Radwah
,
    2020 ONCA 254, at paras. 37 and 38. I am persuaded that in non-
Hague
    Convention
cases where a stay of a return order is sought, the primary
    consideration in assessing irremediable harm is the risk of irremediable prejudice
    to the children.

[38]

The mother argues that the best interests of the
    children would be harmed by altering the status-quo by removing the children from
    Ontario to the UAE, potentially to be separated from her. The father argues
    that the mother cannot rely on a status quo that she has unilaterally created;
    if so, she would be benefiting from what was found to have been the wrongful
    retention of the children:
Zafar v Saiyid
, 2017 ONCA 919, at
    para. 22. Although I accept the basic principle that the father invokes, it is
    not determinative here. As the mother points out, she is not referring solely
    to the status quo since she brought the children to Ontario. Rather, she has
    always been the primary caregiver and that primary care will be interrupted if
    the children are returned to the UAE where the father now has a guardianship
    and custody (decision-making responsibility and primary residence) order in
    place.

[39]

The father argues that, to the contrary, there
    has already been a factual determination that the status quo will not be
    interrupted if the mother accepts his proposed without prejudice settlement offer
    and it is incorporated into an order by a court in the UAE, and if she chooses
    to take advantage of the avenues for gaining entry to the UAE that were found
    to be available to her. He submits, in effect, that I should make my decision
    based on the facts found below. I disagree. These determinations are the
    subject of the proposed appeal, and there are serious issues to be tried
    relating to whether those determinations were arrived at based on the correct
    principles. If the application judge erred in coming to these conclusions,
    there is a risk that the mother and children will be separated, or that
    parenting rights to the children will be determined based on gender-based principles
    or presuppositions rather than the best interests of the children. I am
    satisfied that, in the circumstances, there is a risk of irreparable harm to
    the children if a stay is denied.

(3)

The Balance of Convenience

[40]

I am persuaded that the balance of convenience
    favours granting the stay pending leave to appeal. I have already identified
    the risk of irreparable harm to the children. I am mindful, in coming to this
    conclusion, that it is invariably in the interests of children to have disputes
    about parental rights resolved promptly, and that any delay, including the
    delay pending judicial determinations, creates harm of its own. I recognize,
    for example, that unless the order below is enforced, the children will remain
    largely separated from their father, which is not in their best interests.

[41]

However, I find solace that the film of the
    children with their father that was placed in evidence before me verifies that
    the father has been able to maintain a meaningful emotional bond with the
    children. Despite their physical separation, the children were excited to see their
    father, who they clearly love. This diminishes the risk of harm to the children
    created by perpetuating further delay in reunification while a final legal
    determination is made.

[42]

More importantly, even assuming that the
    children would be returned to Ontario if the appeal succeeds, the risk that the
    status quo relating to the childrens primary care could be disrupted pending a
    final judicial determination is of greater concern than the harm caused by
    delay.

[43]

Then there is the risk of involuntary separation
    of the mother from the children, given her lack of legal status in the UAE. In recognizing
    this risk, I am mindful that the trial judge accepted the expert evidence of
    Ms. Hamade that there are mechanisms enabling the mother to gain access to the
    UAE, and that she can voluntarily remain near her children if she so chooses. Lauwers
    J.A. has pointed out lingering concerns that those mechanisms cannot be assured,
    and he may be right. The fact remains that even if there are strategies for
    overcoming her lack of legal status, as a woman without such status, the mother
    is vulnerable to the risk of exclusion, at great personal loss to her and the
    children.

[44]

I accept that there are offsetting risks to the
    father, including the risk of the perpetuation or the wrongful retention of his
    children, and the appreciable challenges he has encountered in maintaining
    contact with them. I do not mean to disregard the profound compromise of his
    parental rights that has occurred, but my best evaluation of all the
    circumstances is that the balance of convenience favours granting the stay.

[45]

I take comfort in knowing that leave decisions
    tend to be made promptly. If the appeal to the Supreme Court of Canada does not
    have the merit that I suggest it might have, leave will be denied. I also take
    comfort in knowing that although I cannot order that a Supreme Court of Canada
    appeal should be expedited, there are mechanisms before the Supreme Court of
    Canada for doing so if leave is granted.

[46]

Delay cannot be entirely avoided but it can be
    minimized. I can minimize front-end delay by ordering as a condition of the
    stay of proceedings that the mother must file her application for leave to
    appeal within 45 days from the release of the September 14, 2021 decision. The
    mothers counsel shared their expectation that this deadline could be achieved.

CONCLUSION

[47]

A stay of proceedings pending the determination
    of the mothers leave to appeal application from the decision of this court dated
    September 14, 2021 is granted. As a condition of this stay, the mother must
    serve and file her leave to appeal application within 45 days of the receipt of
    the decision of September 14, 2021.

David
    M. Paciocco J.A.


