Case information

Family law — Custody — Non Hague Convention removal and retention — Canadian mother removing child from United Arab Emirates and retaining British born child in Ontario without father’s consent — Whether the Balev analysis of habitual residence should be uniformly applied, to both Convention and non Convention cases — Is to do otherwise undermining the overarching objective of preventing child abductions and restoring the status quo immediately before the wrongful removal? — Would it have the deleterious effect of depriving children of the protections the habitual residence analysis affords, including ensuring that children have the benefit of the best evidence for their custody and access proceedings?

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The father and mother were married in London in the fall of 2012. The mother is a citizen of Lebanon and Canada. The father is a citizen of Saudi Arabia and the United Kingdom. Their daughter was born in London, England in 2013 and is a citizen of the United Kingdom and Canada. The parties separated shortly after their daughter’s birth and family court proceedings ensued in the U.K. The last custody and access order, issued on consent, on November 25, 2015 specified that the child was to live with the mother, with parenting time with the father. The court further ordered that the child was habitually resident in England and Wales and that neither party could remove her from that jurisdiction without the written consent of the other party or further order of the court. The father moved to Dubai around the time of the consent custody order. On April 2, 2018, the mother travelled with the child to Dubai for a two week visit with the father. While there, the mother contended that the father confiscated their passports so that she and the child were unable to leave. The father maintained that the parties mutually decided to raise their child in Dubai. The parties initially lived separate and apart under the same roof but eventually, the father moved into his own apartment. The mother stated that she and the child were trapped in Dubai for almost 14 months. Eventually she was able to regain control of both passports and fled the country with the child on May 29, 2019. They flew to the Toronto, Ontario area, where the maternal grandmother and other family members live. The father completely denied the mother’s version of events.
The father brought an ex parte motion in Toronto to have the matter of the child’s custody decided in Dubai. The application judge ordered that the child be returned to Dubai and that the matter of her custody be determined by the courts in that jurisdiction. The mother’s appeal was allowed. The U.K. consent order clearly set out that the child’s habitual residence was the U.K. and that therefore, any determination of custody and access had to be made by the court issuing the original order.