In the case of Geliedan v Rawdah, Justice Faieta of the Ontario Superior Court of Justice heard an urgent motion by the Father seeking the return of his daughter to her habitual residence and on the grounds that the Mother was a safety risk and a flight risk.
At the center of the dispute is the best interests of the child, who is a citizen of the United Kingdom. The mother is a Canadian citizen who moved to England when she was young. The Father is a citizen of Saudi Arabia and the United Kingdom. The child was born in England and the parents separated shortly after her birth. Subsequent to their separation, a court in England granted custody of the child to the Mother and made an order prohibiting her from removing the child from England and Wales. The parents then moved to Dubai with the child and lived together for a short period of time.
In early 2019, the Mother took the child to Lebanon without the Father’s consent before traveling to Toronto. The Mother also took the child’s passport. As a result, the Father brought an urgent motion for the return of the child to Dubai due to the Mother’s erratic behavior and a fear that she may abscond with the child to Lebanon again.
Justice Faieta had to determine whether the Court had the jurisdiction to make the order sought by the Father, as the child is not habitually resident in Ontario, and neither Lebanon nor the United Arab Emirates are signatories to the Hague Convention on child abduction. In these circumstances, the Court found that Section 40 of the Children’s Law Reform Act (CLRA) applies.
Section 40 states: “Upon application, a court, (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or (b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following: 1. Make such interim order in respect of the custody or access as the court considers is in the best interest of the child. 2. Stay the application subject to, i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal; or ii. such other conditions as the court considers appropriate. 3. Order a party to return the child to such a place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.”
The exercise of the Court’s authority under section 40 of the CLRA is informed by the purpose of the Hague Convention in protecting children from the harmful effects of cross-border abductions and providing a procedure designed to return children to their habitual residence. The Hague Convention is based on the presumption that the wrongful removal of a child is against the best interests of that child. Therefore, courts should restore the status quo that existed before the wrongful abduction in order to promote the child’s interests and allow the child to have contact with both parents.
Preserving the Bests Interests of the Child
At all stages of the proceeding, the Court should consider whether a need for protective measures exist to prevent the removal of the child from the court’s jurisdiction, such as issuing a court order prohibiting the removal of a child from the jurisdiction, combined with a border alert. Given the Mother’s behavior and the real risk that the child may be abducted to Lebanon, a country which is not a signatory to the Hague Convention, Justice Faieta held that it is in the child’s best interests to grant the order sought by the Father using section 40 of the CLRA.
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