Yakub Mohamed Dorya v. Rasidabanu Mohamed Zuber Dorya, 2015 ONCJ 24

Court File and Parties

Court File No.: D71469/14 Date: January 19, 2015 Ontario Court of Justice

Re: Yakub Mohamed Dorya and Firoz Ebrahim Teli – Applicants

And: Rasidabanu Mohamed Zuber Dorya - Respondent

Before: Justice Roselyn Zisman

Counsel: Harry S. Man for the Applicants No one appearing for the Respondent

Heard On: January 7, 2015

Reasons for Judgement

Introduction

1The Applicants seek custody of the children Abullah Dorya ("Abdullah") born December 2, 1996 and Hammad Dorya ("Hammad") born December 20, 2005. Abdullah is residing with the Applicant Firoz Teli and Hammad is residing with the Respondent in India. The preliminary issue to be determined is whether or not this court has jurisdiction to determine the Applicants claim for custody regarding Hammad.

Background Facts

2The relevant background facts are not disputed and based on the affidavits filed by the Applicants I make the following findings.

3The Applicant Yakub Dorya is the paternal grandfather of the children. The Applicant Firoz Teli is the paternal uncle by marriage as he is the husband of the children's father's sister.

4The children's birth parents are Mohamed Zuber Yakub Dorya ("father") and Nazima Zuber Dorya. There are three children of that marriage namely, Zeenat Dorya who is an adult, Abdullah who was a minor at the time this Application was commenced but who has now turned 18 years of age and Hammad. All of the children were born in Canada and are Canadian citizens.

5Both of the children's parents are deceased. The mother died on August 3, 2007. The father married the Respondent on November 2, 2007 in Canada. The Respondent did not have any legal immigration status in Canada. She was smuggled into the country and claimed refugee status. After her claim was dismissed she was removed from Canada in 2008 on an immigration removal order. The father attempted to sponsor her immigration back to Canada but her application was refused. The father appealed the ruling.

6Pending the hearing of the appeal, the father took Hammad to India to visit the Respondent four times from 2009 to 2012. On the last visit in April 2012, the father left Hammad temporarily with the Respondent and returned to Canada to attend the immigration appeal hearing on June 18, 2012.

7The father was suddenly diagnosed with cancer in August 2012 and passed away on September 15, 2012.

8Despite the fact that the immigration appeal had been allowed, the Respondent could not immigrate to Canada as the father, her sponsor, died before her application was processed. The child Hammad has therefore been in her sole care in India since June 2012.

Litigation History

9The Applicants commenced this Application on August 19, 2014. An urgent motion, without notice, was before Justice Waldman on August 21, 2014. Justice Waldman ordered that the motion be served on counsel Louis Mostyn who had been retained by the Respondent to deal with the estate matters including retrieving her late husband's documents and Hammad's birth certificate. Mr. Mostyn was retained for the limited purposes of appearing on the motion.

10Counsel attended before Justice Waldman on September 19, 2014. It appears that an affidavit by the Respondent's counsel was filed sworn September 17, 2014 that included a letter from the Respondent outlining her version of events and her position. The endorsement of that appearance states, "Child needs a passport to return to Canada. Adjourned to November 26, 2014 at 9:30 am. I will decide jurisdiction. Any additional materials to be filed by November 1, 2014."

11The motion was before me on November 26th as Justice Waldman was ill. No one attended and the Application and motion were dismissed. Counsel for the Applicants then sent in a Form 14B advising that he had misdiarized the date and the matter was again before the court on December 16, 2014. Counsel for the Applicant advised that the jurisdictional issue had been argued before Justice Waldman on September 19th and counsel for the Respondent had not been retained for any further appearances. Due to the uncertainty of Justice Waldman's illness, it was agreed that submissions with respect to jurisdiction would be made again before me. Counsel requested further time to argue the jurisdictional issue. The case was again adjourned to January 7, 2015. Counsel for the Applicants attended and filed written submissions. No one attended on behalf of the Respondent.

Disputed Evidence

12On this motion I have relied on the sworn affidavit of the Applicants and the factum filed by the Applicants. Although there was no objection to the Respondent filing and relying on her counsel's affidavit with the Respondent's statement attached as an exhibit, it would have been preferable for the Respondent to file a sworn affidavit. I would not put much weight on evidence submitted in this manner. I find that I do not have to resolve the conflicting evidence or resolve many of the factual conflicts for the purpose of this motion as most of the relevant evidence is not disputed. I simply outline the disputed evidence for the sake of a complete record.

13The Applicants depose that it was always the intention of the father that Hammad be raised in Canada and that on his death bed he asked the Applicant Firoz to bring Hammad back to Canada as soon as possible.

14The Applicants produced the father's will dated September 6, 2012 that states the Respondent and the three children will share the estate equally although the Applicants depose that there are no assets in the estate. The will provided that the father's brother Javed Dorya be the legal guardian of any child under the age of majority and if his brother was unwilling or unable to do so that the Applicant Firoz be the guardian.

15The relevant provisions of the will are as follows:

If at my death, I have any child or children under the age of 18 and such child or children does not have a living parent, I nominate my brother, Mohmed Javed Dorya to serve as legal guardian of such child or children. If this person is for any reason unable or unwilling to serve as guardian, then I nominate my brother-in-law, Firoz Teli to serve as the legal guardian of such child or children. If any legal guardian of my child or children should be appointed, I nominate the individual identifies above for appointment as guardian and request the court to appoint the nominee, grant the guardian custody of the child or children, permit the guardian all statutory and discretionary powers permitted under the laws of Ontario, including but not limited to changing the residence and domicile of the child or children where the guardian may then reside, and appoint such individuals as guardian of the estate of such child or children.

My spouse is step mother of my children. She is one of the parents of my children. However, she is currently in India. If in the case where she cannot come to Canada as a permanent resident, it is as having my children has no living parent at my death.

16The mother states that she does not believe that this is a valid will as the Applicants refused to disclose it for over a year and only did so under threat of court action and as part of this proceeding. She believes the signature is forged as it does not resemble her late husband's signature and further states that she believes it was signed under duress. She states that it was signed only a few days before the father's death when he was terminally ill and undergoing intense radiation and chemotherapy and she further notes that the witnesses are all relatives. I note that given the language and the several grammatical mistakes in the will I am doubtful the will was prepared by counsel although, of course, even if the will was prepared by a lay person this would not invalidate the will.

17The Applicant Firoz purchased an airline ticket for the child Hammad to travel from India to Toronto on September 19, 2012. But the Respondent refused to permit him to return to Toronto. The Applicants depose that they and other family members have tried to negotiate for the child's return but have been unsuccessful as the Respondent is trying to use the child to bolster her ability to return to Canada. The Applicants have also attempted through the Canadian Department of Foreign Affairs to bring the child to Canada but are unable to do so without a custody order.

18The Applicants depose that they are concerned about Hammad's well-being as the father before his death advised them that the Respondent was abusive to his children, that they understand Hammad is not going to school and they have no information that he is being properly cared for. The Applicants depose that the children Zeenat and Abdullah continue to live with members of the father's extended family and all of their needs are being met. The Applicant Teli is employed full-time and the Applicant Yakub is retired. They have sufficient resources, time and support of other extended family members to meet Hammad's needs. They depose that if Hammad is returned to Canada he will be reunited with his siblings and the other members of his extended family.

19The Respondent states that when she married the father she was aware that he had three children from his previous marriage and she was prepared to act and did act as a loving and devoted parent to all of the children and in particular to Hammad who was only 18 months old at the time. She states that prior to his death the father was struggling to keep his family together and was in dire financial straits and that his family would not assist him. He left his two older children with his brother-in-law, the Applicant Teli and travelled to India to leave Hammad with her. She states that she is living on a meagre existence working part-time as a dressmaker and is solely responsible for feeding, clothing and paying for Hamad's schooling and other expenses.

20The Respondent also states that she requested the Applicant Yakub send her the child's birth certificate so she could apply to have his Canadian passport renewed but he refused. She also included a letter that she sent to the Consulate General of India in Toronto complaining that the Applicants had sent a letter to the Consulate General requesting that the consul general not issue Hammad an India visitor's Visa and requesting that Hammad should be deported or returned to Canada.

Orders Sought

21The Applicant seeks the following order:

1. If the court finds that is has jurisdiction for this application, then the issue of custody of Hammad should be set for an ex-parte hearing as the Respondent, who was properly served on August 22, 2014, has failed to file an Answer within 60 days.

2. If the court finds that it does not have jurisdiction, then the Application should be transferred to the Superior Court of Justice for a set appearance date.

22The Respondent in the written materials filed did not directly address the jurisdictional issues but stated that:

1. She is prepared to return the child to Canada but only on condition that she is allowed to accompany him.

2. The Office of the Children's Lawyer be appointed but then confirmed that that the Office of the Children's Lawyer would not agree to be appointed where the child resides outside of the jurisdiction. The Respondent then requested that

3. The presiding judge arrange to speak to the child; and

4. The Respondent be permitted to obtain all of the child's documentation and any documentation she may require in order that the child may return to Canada and that she be permitted to accompany him as she is the only mother he has ever known.

Applicable Statutory Provisions and Legal Principles

23A determination of the issue of jurisdiction requires a consideration of sections 22 and 23 of the Children's Law Reform Act.

24Those provisions provide as follows:

22. (1) Jurisdiction - A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

(2) Habitual Residence - A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) Abduction - The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

23. Serious harm to child - Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

25In Dovigi v. Razi the Ontario Court of Appeal confirmed that the Children's Law Reform Act contemplated only four ways in which an Ontario court can exercise its jurisdiction to make an order pertaining to the custody and access of a child as follows:

First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.

Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.

Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.

Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.

Analysis

26The Children's Law Reform Act is a complete code with respect to the court's authority to assume jurisdiction in custody cases. It appears from the Respondent's statement that she is prepared to attorn to this court's jurisdiction as she wishes to return to Canada and is content to use the legal battle over the custody of Hammad as a means of circumventing the immigration law that is preventing her from gaining entry into Canada.

27It is trite law that the parties cannot confer jurisdiction on the court that it does not have. Therefore in order for this court to assume jurisdiction that jurisdiction must be found in one of the 4 ways outlined above.

28As the Ontario Court of Justice is a statutory court it does not have parens patriae jurisdiction.

29Section 23 does not apply as the child Hammad was not physically present in Ontario at the commencement of this Application and in any event I would not have found that the evidence established a case of serious harm.

30Section 22(1)(b) also does not apply as the child Hammad was not physically present and all of the criteria in that section must be satisfied.

Is the Child Habitually Resident in Ontario?

31Therefore, in order for this court to exercise its jurisdiction there must be a finding that the child Hammad was "habitually resident" in Ontario at the commencement of this Application as set out in section 22(1)(a) as that term is defined in section 22(2).

32In examining the criteria pursuant to section 22(2), the Applicants submit that it is only section 22(2)(a) that applies as the living arrangement that last occurred for Hammad was in Ontario. It is submitted that prior to the child's trips to India he resided in Ontario his entire life; first with both parents and then with his father after his mother's death. It is submitted that Hammad was only taken to India for temporary visits and that his father indicated both when he was alive and in his will that his intentions were for Hammad to return to Canada as soon as possible.

33It is submitted that section 22(b) does not apply as the father and the Respondent were not living separate and apart but were merely physically separated as a result of the immigration removal order.

34It is submitted that section 22(c) does not apply because as the child was not living with another person on a permanent basis for a significant period of time as he was only living in India on a temporary basis.

35In the case of Korutowska-Woof v. Woof Justice Feldman of the Ontario Court of Appeal outlined the often quoted principles to be considered when deciding "habitual residence". Although the term was explained in the context of a Hague Application, Ontario jurisprudence has held that the term has the same meaning as it has pursuant to the Children's Law Reform Act. The Court stated as follows:

• the question of habitual residence is a question of fact to be decided based on all of the circumstances;

• the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention";

• a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

• a child's habitual residence is tied to that of the child's custodian(s).

36I accept as a fact that the father and the Respondent only intended that Hammad remain in India until the Respondent could return to Canada. But pending the ability of the Respondent to return to Canada, the intention was that the child would remain in India with the Respondent. Now of course the father has died and the child continues to reside with the Respondent in India. Habitual residence does not necessarily imply permanence or an intention to stay permanently.

37It has been held that "a significant period of time" as defined in clause 22(2)(c) of the Act has two aspects:

1. A significant length of time and

2. A significant time in the life of the child.

38The words "permanent basis" and "for a significant period of time" must be read conjunctively. The longer the period of time, the more likely it is that the situation will be considered one of permanency.

39A party's original intention is only one factor to consider in determining permanence and the court must consider other factors. Even if an arrangement was originally intended to be temporary, it may become permanent with the passage of time. Other indicia of permanence include: establishing relationships with other relatives, attending school, obtaining medical treatment, developing relationships with other children of the child's age, and knowing no other place than the current residence at home.

40In Sui v. Tang, the court declined jurisdiction as the child had lived with the grandparents in China for 20 months, almost her entire life, at the time of the application. The mother was still was hoping to have the child eventually return to live with her in Canada. Justice Schnall stated at para. 51:

Even at the time that the mother took the child to China, the practical meaning of 'temporary' was unknown; it would depend on the mother's ability to finish her studies and then to get a job whereby she would be able to support herself and the child. The mother hoped that such a job would be in the region, but she could not anticipate that this would be so, in February or March, 1995.

41In Vega v. Vega section 22(2)(c) was applied where the child had lived with grandparents in Ecuador for two and one half years, more than half of her life. The court held it had no jurisdiction to determine custody as the child had lived in Ecuador for a significant amount of time both with respect to the actual time and the time as compared to the child's age.

42In Hsui v. Liu, the court did not apply clause 22(2)(c), where the child had lived with grandparents in Taiwan for 13 months prior to the application. The court found that the clear intent was for the child to visit, not move, to that country. In Hsui, the wife reiterated on numerous occasions her desire for the child to be returned to Ontario. The husband and paternal grandmother repeatedly assured the mother that the child would be returned, but after the separation of the parties never honoured their assurances. The court held that the mother both by her actions and words had never consented to the child remaining in Taiwan permanently with the grandparents.

43In Dhillon, the child went to live with his maternal grandparents in India when he was 10 months old. The application was started in Ontario 14 months later. At that time, the child had been in India for more than half of his life. Justice Snowie, found this to be a significant period of time in the child's life. She stated at paras. 83-84:

[83] I also find that the child lived with the maternal grandparents "on a permanent basis". I have rejected Gurinder's evidence that the child's stay in India was intended to be temporary only. His evidence was contradicted by that of the maternal grandparents and Kirandeep, who testified that the child was sent to India indefinitely for a number of reasons. Even if I am wrong in making this factual finding, the court in Sui held that intention is only one factor in determining permanency. In this case, what may have been a temporary arrangement became permanent with the passage of time. Unlike the wife in Hsu, Gurinder accepted this change, as evidenced by the child's continued stay in India after the original two (2) months (January and February 2008) and by the renewal of the child's visa in the fall of 2008. Following Sui, I have considered other indicia of permanency besides the passage of time. Here, the child has established relationships with other relatives, obtained medical treatment and developed friendships with other children in India.

[84] Given my finding that the child has resided in India with the maternal grandparents "on a permanent basis for a significant period of time", the court does not have jurisdiction to make a custody order under s. 22(1)(a).

44In Kanafani v. Abdulla, Justice Sherr declined the mother's motion for the Ontario court to assume jurisdiction where the child had resided in Egypt with the paternal grandmother since 2008. He held that for a substantial period of the child's life he had resided in Egypt.

45I find that it was the clear intention of the father to leave the child with his wife, the Respondent, until the immigration issues could be resolved. Although the parties hoped that this would be for a short period of time there was never a clear timeframe as to when this might happen. As a result of the father's untimely death that timeframe is even further unclear. In the meantime, the child became settled in India.

46Regardless of the original intention of the parties and despite the Respondent's wish to return to Canada with the child, what was a temporary arrangement has with the passage of time become a permanent and stable living arrangement for a significant period of time. The child had been residing with the Respondent in India for just over two years when the Applicants began this Application. Although there was almost no evidence regarding the child's circumstances in India, I draw the inference that given the length of time he has been residing in India that he has inevitably established relationships with other relatives of the Respondent, attended school, obtained medical attention, if necessary and developed relationships with other children.

47I find that the facts of this case are consistent with the facts in the above noted cases of Sui, Dhillon, Vega, and Kanafani, where the courts declined jurisdiction where the child had been living with either another parent or a relative outside of Ontario for a significant amount of time.

48Pursuant to section 22(2)(c), I find that the child Hammad has been residing with the Respondent in India on a permanent basis for a significant period of time. Accordingly, he is not "habitually resident" in Ontario and this court does not have the jurisdiction to determine any issues regarding his custody.

49Even if I had determined that Ontario had jurisdiction to hear this case, I would have declined to do so pursuant to section 25 of the Children's Law Reform Act. The child has now resided in India for over two and half years and is being cared for by the only mother he has ever known. The best evidence about the child's well-being is in India. In what country the child should reside and by whom this child should be parented should be determined by the court in the jurisdiction where the child is now residing.

50I also consider that the determining factor in all disputes regarding decisions about children is what is in a child's best interests. The father entrusted this child to the care of the Respondent. Based on the evidence before me, it is inconceivable that it would be in this child's best interests to be placed in the custodial care of relatives that have never parented him just because those relatives reside in Ontario. If the Applicants are sincerely interested in the well-being of the child and believe that it is in his long term best interests to be raised in Canada then perhaps they could use their energies to assist the Respondent in immigrating to Canada along with the child rather than attempting to remove the child from the only parent he now has.

Does Section 22(3) of the Children's Law Reform Act Apply?

51The Applicants have also submitted that if this court finds the child has resided in India on a permanent basis for a significant period of time that, as this arrangement was against the father's wishes, section 22(3) of the Children's Law Reform Act is applicable that is, that the child was abducted.

52That section requires a parent to be withholding a child without the consent of the person having lawful custody of the child. In this case, the Applicants never had lawful custody of the child. Even if somehow the Applicants could assert this authority or stand in the place of the father, the father acquiesced to the Respondent having the child in her care. I find that this section is therefore not applicable.

Should This Proceeding Be Transferred to the Superior Court of Justice?

53The Applicants have requested this proceeding be transferred to the Superior Court of Justice so that court can exercise its parens patriae jurisdiction to assume jurisdiction in this case. It is submitted that courts have applied their inherent parens patriae jurisdiction to rescue a child in danger or to bridge a legislative gap.

54Based on the evidence before me, I find that there is no evidence that the child "is in danger of being neglected" as alleged by the Applicants. The affidavits filed by the Applicants simply states this as a fact without a shred of evidence to substantiate this allegation. If this is an actual concern or if there was any such evidence I would have expected the Applicants to have reported these concerns to a child protective agency in India.

55I also do not find that there is any basis to assert that there is a legislative gap. The Applicants assert that there "might be no court that can or will assume jurisdiction". However, again there is no evidence before me that supports this assertion.

56I decline to exercise my jurisdiction to transfer this proceeding to the Superior Court of Justice as I do not find that there is a prima facie case made out that the Superior Court of Justice would consider exercising its parens patriae jurisdiction on the facts of this case.

Interim Powers of the Court

57Section 40(b) the Children's Law Reform Act provides that where a court has not exercised its jurisdiction under section 22 or has declined jurisdiction under section 25 or 42 it may make such interim orders regarding custody or access as the court considers to be in the child's best interests.

58The Respondent requested that the Applicants return the child's birth certificate to her so she could renew the child's Canadian passport.

59As the Respondent is the child's de facto custodial parent it is in the child's best interests that she be in possession of his birth certificate.

Custody of Abdullah Dorya

60The Applicants in their Application seek custody of Abdullah. Abdullah has resided in Ontario all of his life, he was a minor when the Application was commenced and is under the joint care and custody of the Applicants. This court has jurisdiction to deal with his custody. The Respondent takes no position regarding Abdullah.

61If the Applicants wish to pursue custody of Abdullah they can file a Form 23C and proceed on an uncontested basis.

Order as Follows:

1. The Applicants' motion with respect to custody of Hammad Dorya born December 20, 2005 is dismissed due to a lack of jurisdiction.

2. The Applicants shall immediately send the Respondent by registered mail or courier the child's birth certificate.

3. The Applicants may proceed with their application to obtain custody of Abdullah Dorya born December 2, 1996 on an uncontested basis.