N. V. F., 2021 ONCA 614
In N. V. F., 2021 ONCA 614, the parties were from Pakistan. The Father is a Pakistani foreign national. The Mother immigrated from Pakistan to Canada when she was 15 years old and became a Canadian citizen. The parties married in Pakistan in 2012 and resided in the UAE for 8 years with their young children. The parties have two children under the age of five. One child was born in Ontario in 2016 and is a Canadian citizen. The family are not UAE citizens. Mother has no independent status to reside in the UAE. Her status is dependent on the Father taking additional steps. Father however is seeking a divorce in the UAE which impacts Mother’s residency status.
On June 19, 2020, Mother and the children traveled to Ontario. Father consented to the trip. Two weeks after arriving in Ontario, Mother notified Father that she would not be returning to the UAE with the children. She was the primary caregiver taking care of their day-to-day needs of the children since birth.
Father commenced legal proceedings in Ontario and the trial judge ruled that the children ought to be returned to Father in the UAE. On appeal, the Court of Appeal agreed.
However, Lauwers J.A., for the Court of Appeal, disagreed. He noted that the UAE is not a signatory to the Hague Convention, unlike Canada and many other countries. This is an important factor that ought to be considered.
Lauwers J.A. conducted an analysis of UAE’s “custody” legal language which attaches to Mother and UAE’s “guardianship” legal language which attaches to Father and determined it was not equal to Canada’s “custody” and “access” legal language. Rather “custody” in the UAE refers to the day-to-day care of the children while “guardianship” resembles our understanding of custody with the exception that it is tied into finances. To this end, Mother would be the caretaker, while Father would make all the decisions for the children. It is not a shared parenting and decision-making scheme as Ontario parents may enjoy. The legal scheme in the UAE appears to be significantly different which leaves Mother in a very precarious position if she returns to the UAE. This matter is now being appealed to the Supreme Court of Canada. It will be an interesting case to follow.
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