Andy Hayher

Absconding & Forum ShoppingIn Heath-Breakspear v. Breakspear, the Supreme Court of Newfoundland found itself dealing with a jurisdictional issue. There were three children involved who had all been living in Dubai for more than 15 years. In 2016 the mother came to Canada for a vacation and did not return. The marriage was on the rocks before she left and the father was on the precipice of filing for divorce. The mother refused to return and filed an application in Newfoundland Court for custody, child and spousal support. The father countered and applied for an immediate return of the children to Dubai and asked the Court to decline jurisdiction because the children were habitually resident in Dubai. The mother suggested that she could not return to Dubai as she would not be treated equally by the courts in Dubai.

The Court did a complete analysis and found that the children needed to go back to Dubai. The Court held that it was only in exceptional circumstances that a court should accept jurisdiction where the children are more closely connected to another jurisdiction. What is more, the Court held that it must discourage litigants from abducting children and then engaging in forum shopping. Justice LeBlanc, after reviewing the evidence, was satisfied that the best evidence as it relates to the children’s best interests was available in Dubai and not in Newfoundland. In addressing the mother’s grave risk of harm argument, the Court held that there was no evidence that Sharia Law would not consider the best interests of the children. Accordingly, the children were returned to Dubai.