Child Abduction, the Best Interests of the Child, and the Supreme Court’s Decision in F v N
Rebecca Rabinovitch, 2L, Articles Editor
In 2022, the Supreme Court of Canada [SCC] ruled on three family law cases. The most recent of these, F v N, 2022 SCC 51 (CanLII), considers how courts can assess the potential for serious harm when children are removed from or returned to their usual place of residence. While both the majority and dissenting opinions in this case address the key principle of the best interests of the child, their approaches differ, and neither is entirely satisfactory. The SCC opinions examine factors including disincentivizing abductions and preserving attachments to caregivers. Crucially though, neither opinion addresses the need to consider the children’s own views and preferences.
Background
The United Nations Convention on the Rights of the Child [UNCRC] was established in 1989 and sets out the international community’s aspirations for the protection of children’s rights worldwide. The UNCRC recognizes a wide range of specific rights for children as well as four guiding principles which underpin the specific rights and inform their interpretation. These guiding principles are the right to life, survival, and development (UNCRC at art 6), non-discrimination (art 2), respect for the child’s views (art 12), and emphasis on the best interests of the child (art 3).
Canada has ratified the UNCRC, but has not explicitly incorporated it into domestic legislation (see the Department of Justice’s page on the UNCRC) nor ratified the Optional Protocol that provides a complaints mechanism for children whose UNCRC rights have been violated (see Canada’s ratification status at the UN Treaty Body Database). These obstacles can limit the opportunities available for Canadian children to directly enforce their UNCRC rights. However, concepts from the UNCRC still have a meaningful influence on Canadian law. In particular, the concept of the best interests of the child has been used in legislation and judicial decisions alike to establish how decisions that affect children should be made.
The Best Interests of the Child [BIC]
The UNCRC concept of BIC focuses on what will promote the highest possible fulfillment of the child’s potential, and in doing so goes well beyond merely preventing harm to the child. This is clear from the UN Committee on the Rights of the Children’s General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), which describes the UNCRC’s vision of comprehensive well-being for children (General Comment 14 at para 71). This fulfillment-oriented view of BIC is also reflected in Canadian jurisprudence (Young v Young, [1993] 4 SCR 4 at 65, 1993 CanLII 34 [Young]), although at other times the SCC has placed more emphasis on a mere harm-avoidance approach instead (Canadian Foundation for Children, Youth, and the Law v Canada (Attorney General), 2004 SCC 5 (CanLII) at paras 31–32).
BIC is also deeply connected to the importance of respect for the child’s views, another UNCRC guiding principle. While the UN has established that all of the UNCRC rights are interrelated, this specific link has been highlighted in Canadian jurisprudence. The SCC has held that BIC includes the gradual development of children’s autonomy and ability to contribute to decisions that will affect them (AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII) at para 88 [AC]). This right must be exercised in line with the child’s maturity and abilities but remains important even for young children (General Comment 14 at para 56).
The SCC’s decision in F v N
In F v N, the SCC’s most recent case on family law, the court engaged with the concept of BIC in the context of international child abductions. Specifically, this case dealt with the circumstances under which a child can be removed from a country that is not a signatory to the Convention on the Civil Aspects of International Child Abduction (also known as the Hague Convention), which provides a framework for returning children to their home jurisdictions for the adjudication of parental custody claims. In F v N, however, two children were brought by their mother to Ontario from the United Arab Emirates (UAE). Because the UAE has not ratified the Hague Convention, it fell to Ontario courts to determine which jurisdiction should decide the issue of the children’s residency based on the Children’s Law Reform Act [CLRA]. The children’s father, who had remained in the UAE, sought the return of the children and determination of custody in the UAE. The mother, on the other hand, argued that the children would suffer serious harm if they were removed from Ontario, and that Ontario should therefore exercise jurisdiction over the custody dispute through s 23 of the CLRA.
While the provisions of the CLRA at issue do not explicitly incorporate BIC, the previous leading case on these provisions noted that this is an overriding policy concern (Ojeikere v Ojeikere, 2018 ONCA 72 (CanLII), at para 17 [Ojeikere]). In particular, the Ontario Court of Appeal noted the significant ways that abduction can harm children, including by interfering with parent-child relationships (Ojeikere at para 16). These comments are consistent with the UNCRC, which requires that separation from a parent only occur where it is consistent with BIC (UNCRC at art 9). The importance of BIC in this context, as demonstrated by these considerations, warrants examination of whether the two SCC decisions in F v N adequately incorporated BIC into their analyses.
The Majority
The majority upheld the trial judge’s finding that Ontario courts did not have jurisdiction over the custody dispute and that the children should be returned to the UAE. Kasirer J suggested that while BIC is a paramount consideration (F v N at para 61), it is not appropriate to undertake a full inquiry into BIC when a child has been abducted. Instead, courts should assume that returning the child to their home jurisdiction is generally consistent with BIC, unless statutory grounds like the serious harm test are met (F v N at paras 63–64). Factors relevant to BIC should still be considered, but specifically through the lens of how they affect the potential for serious harm to arise (F v N at para 68).
Kasirer J also set a high bar for the serious harm test in s 23 of the CLRA, which he ruled was necessary to ensure that the harm of returning the child would outweigh the harms that abduction can cause. Physical and psychological abuse provide clear examples of serious harm in this context, but do not represent an exhaustive list (F v N at para 74). In particular, the court acknowledged that separation from a primary caregiver itself has the potential to cause serious psychological harm (F v N at para 77). However, the majority noted that this type of separation will not always cause serious harm, particularly where the child’s other parent is a competent caregiver living in an environment familiar to the child (F v N, at para 80).
In this case, the mother had been the children’s primary caregiver, but the majority rejected the argument that separating the children from her would cause them serious harm. Kasirer J accepted the trial judge’s finding that the risks of separation would be mitigated by the return of the children to a familiar home and school environment, and by the father’s care plan, which involved a familiar nanny and the arrival of extended family members to provide support (F v N at para 105). As will be discussed below, this aspect of the decision was criticized by the dissenting justices and underemphasizes the importance of caregiver attachments for children’s wellbeing.
In addition to concerns about the harms of removal from a familiar environment, the court also considered the risks of what the dissenting opinion termed “self-engineered harm” (F v N at para 144). By this, the court referred to situations where a parent abducts a child and then cannot or will not return with them to the home jurisdiction, creating a dilemma where the child will experience separation from a parent no matter the outcome of the dispute (F v N at para 78). Kasirer J acknowledged that parents may have legitimate reasons for refusing to return to the home jurisdiction (F v N at para 82). However, he expressed concern that a lenient approach to these situations could lead to Ontario becoming an advantageous location for child abductions (F v N at para 78).
The majority further suggested that the risk of self-engineered harm would be aggravated by a more thorough consideration of BIC at this stage of the analysis. In particular, detailed examination of BIC during a jurisdictional dispute could slide into adjudication of the merits of the custody claims involved, delay resolution of claims, and defeat the purpose of the presumption that children should be returned to their home jurisdictions (F v N at paras 10, 97).
The Dissent
The dissenting reasons, written by Jamal J, provide a different view of both the circumstances of this case and the broader application of the serious harm test. The dissenting judges agreed with the majority that preventing child abductions is an important goal of the CLRA, but placed greater emphasis on the potential negative consequences of separating young children from their primary caregiver. While the dissenting judges agreed that separation from a caregiver will not always constitute serious harm, and that this is dependent on the circumstances of each case, they would have held that the trial judge’s factual findings on the children’s circumstances necessitated a corresponding finding of serious harm (F v N at para 178).
In particular, Jamal J raised concerns about the mother’s role as a central caregiver, while the father remained “less involved” in the children’s lives and was often away for work reasons (F v N at para 184). Jamal J was also hesitant to accept the father’s alternative care plan was appropriate, given its reliance on a nanny and relatives the children did not know (F v N at para 190). Finally, the dissenting opinion preferred an analytic framework aimed at preventing serious harm rather than one focused on allowing potential harm but assessing mitigating factors (F v N at para 191).
On the issue of self-engineered harm, Jamal J agreed with the majority that in general, a parent should not be able to create and reap benefits from a situation that harms their child. However, in his view, this principle should not be applied stringently where a parent has justifiable reasons for leaving the home jurisdiction and refusing to return (F v N at para 166). In this case, the mother was not a citizen of the UAE and was reluctant to remain there given the precarity of her residency post-divorce (F v N at para 144). While the majority also acknowledged that this was a justified reason for the mother’s actions, Kasirer J did not view this as exempting the mother from concerns about the self-engineered harm problem.
Analysis
While both the majority and dissenting opinions incorporate the concept of BIC, neither does so in an entirely satisfactory way. The majority’s concerns regarding self-engineered harm represent a worthy goal of avoiding the negative effects of child abduction. However, the majority’s approach risks relying too heavily on presumptions about children’s welfare rather than individualized information and provides less room to adjust outcomes to promote BIC than the dissent’s more contextual perspective. While an exhaustive review of the child’s interests may not always be practical or efficient, it is important for courts to strike the correct balance and avoid glossing over relevant information about the children’s particular circumstances. An abbreviated assessment of BIC, as performed here, risks an analysis that leaves aside important considerations, such as caregiver attachments and the children’s own views and preferences.
The dissent’s more preventative approach to the problem of caregiver attachments includes greater attention to the risks of separation from a caregiver than the majority opinion. This approach is more consistent with previous jurisprudence and social science evidence on the topic. The SCC has acknowledged that children’s bonds with caregivers are crucial for their development (Young, at p 66-67). There is broad consensus among social science researchers that it is beneficial to children to maintain their attachments with caregivers, although there is considerable room for disagreement on how exactly this should map onto custody arrangements, particularly given the effect of contextual factors like culture and the age of the children involved (Tommie Forslund et al, “Attachment Goes to Court: Child Protection and Custody Issues”).
The dissent’s emphasis on the harm the children would experience if separated from their mother could raise the spectre of the now-abandoned tender years doctrine, a concern which the Court of Appeal decision in this case outlined (F v N at para 194). This doctrine allocated care of young children to their mother as a rule, under the assumption that children below a certain age specifically require their mother’s care. The tender years doctrine, while leading to the same outcome in this case, embodies a philosophy distinct from Jamal J’s view, which prioritizes continuity of care in the child’s specific circumstances over any gender-based assumptions (F v N at para 194). However, it is worth noting that the gender-based allocation of childcare responsibilities as they currently stand in Canada would likely produce similar results in many cases (Kristyn Frank & Marc Frenette, “Couples’ Perceptions of the Division of Household and Child Care Tasks: Are There Differences Between Sociodemographic Groups?”).
While the dissent’s analysis appears to be more congruent with both the social science understanding of the harms of separation from a caregiver and the treatment of this topic in Canadian jurisprudence, it still presents problems in its application of the principle of BIC. One serious omission from the judgment as a whole is the relative lack of focus on the children’s views regarding whether they would be harmed by a return to the UAE. The previous leading case on the relevant provisions of the CLRA, Ojeikere, set out the views of the child as a potentially important factor in assessing serious harm (Ojeikere at paras 63–64), a contention that the SCC accepted in the present case (F v N at para 74). However, in this case the trial judge noted that there was no evidence of the children’s views available (F v N at para 30) and both the majority and dissenting opinions accept this with relatively little discussion. This glossing-over may be explained by the age of the children involved. In Ojeikere, where the court took the children’s views very seriously, the children ranged in age from 12 to 15. Indeed, in justifying its reliance on the children’s views, the court dismissed the utility of consulting younger children’s views on where they should live (Ojeikere at para 78).
While the children involved in F v N were young (ages 3 and 6), even young children are capable of expressing opinions about their caregivers. The immaturity of young children’s worldviews can be accounted for by placing lesser weight on their opinions, but this should not lead to a complete absence of their views from decisions as important to their lives as who will care for them. Incorporating children’s views to an extent commensurate with their maturity level is a critical aspect of promoting their best interests (AC at para 88). This is particularly important given the UNCRC’s emphasis on respecting the views of children of all ages when making decisions that affect them (General Comment 14, at para 56). An approach that centers children’s views in assessing the potential for serious harm upon returning them to their home jurisdiction would accordingly better reflect a full incorporation of the principle of BIC.