Court File and Parties
Divisional Court File No.: 704/23
Superior Court of Justice – Ontario
Divisional Court
Between:
Lubna Yousef Abdel Rahman Aldahleh, Applicant
And
Zakaria Zayed, Respondent
Before: Leiper J.
Counsel: Lubna Yousef Abdel Rahman Aldahleh – self represented Counsel to the respondent, Abeer Abosharia Counsel to the children: Sam Micheal
Heard: In writing on April 25, 2024
Endorsement
1These reasons explain why I am dismissing the appellant’s motion for leave to appeal the interlocutory order of Mitrow, J. on November 29, 2023, using the authority of the court under Rule 2.1 of the Rules of Civil Procedure.
2The interlocutory order required the appellant to deposit her children’s passports for safekeeping, pending the outcome of a trial concerning Ontario jurisdiction over parenting time with the three children of the marriage.
3The trial has concluded in favour of the mother. The trial judge, Tobin J., ruled that the outstanding issues of parenting time may be tried in Ontario. In addition to the reasons for judgment on the merits of the trial, the trial judge issued an endorsement on February 16, 2024, as follows:
“Summary of written judgment (reasons) were read in open court today. It seems to me that all interim orders made in this case are at an end. This would include the order of Mitrow, J. dated November 29, 2023. Respondent is granted leave, once his Answer is filed, to move for an order regarding filing passports of children with the court or other person for safekeeping.”
4Counsel for the Respondent provided a copy of the February 16, 2024 endorsement to the court and submitted that given the trial is completed, and the endorsement from the trial judge relative to the interlocutory order of Mitrow, J., this appeal is moot, that is not necessary since the order is no longer in force.
5The appellant made submissions asking to continue with her motion for leave to appeal the order. She submits that she has concerns that the respondent father could appeal the trial judgment and seek a stay, which could mean the interlocutory order of Mitrow, J. would be in force again, or alternatively, as mentioned in the endorsement of Tobin, J. he could seek an order for safekeeping of the children’s passports.
6There is no indication that the respondent father has appealed or intends to appeal the order of Tobin, J. If he does, and orders are sought relative to the passports of the children, these steps would necessarily be taken on notice to the applicant who would be able to make submissions prior to any temporary orders made pending such an appeal.
7Further, if the respondent makes a future motion pending the second set of issues on the trial of the parenting issues, again the applicant will have an opportunity to respond. Neither of these scenarios would bring the order of Mitrow, J. back into force.
8As the Court of Appeal wrote in Visic v Elia Associates Professional Corporation, 2020 ONCA 690, at para 8:
Rule 2.1 must be “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488.
9I find that the order of Mitrow, J. is spent. While the question of the children’s travel documents may arise again pending the trial of the parenting issues, those will be dealt with in the future. The applicant will be able to make submissions and be heard prior to future orders being made. It would be an unnecessary and frivolous use of court time to continue the motion for leave to appeal. I will exercise the court’s gatekeeping function and dismiss the motion for leave pursuant to Rule 2.1.
Leiper, J.
Date: April 25, 2024