Court File and Parties
Court File No.: Toronto D56333 Date: 2012-03-30 Ontario Court of Justice
Between: Mohanad Abdul-Razak, Applicant
— And —
Shareen Ghawi, Respondent
Before: Justice Ellen B. Murray
Heard on: March 27, 2012
Reasons for Decision on Motion released on: March 30, 2012
Counsel:
- Dorothea Dadson, for the applicant
- Elli M. Cohen, for the respondent
Decision
MURRAY J.:
[1] The Applicant Father brings a motion asking that the Respondent Mother be ordered to return the parties' children, Ilia, 3, and Dunia, 2, to the City of Toronto.
[2] Father commenced this action on March 21, 2012, seeking custody or joint custody. He brought his motion ex parte on March 21, 2012, and I directed that the motion material be served. That was done, and the motion came before me on March 27, 2012.
[3] The parties separated on March 7, 2012, when Mother left the matrimonial home in Toronto, taking the children with her to Goderich, Ontario, to live with her extended family. She issued a petition for divorce on March 26, 2012 in Goderich. Her claims include claims for equalization of net family property, as well as claims for custody and child and spousal support. By virtue of section 27 of the Children's Law Reform Act (CLRA), Father's action is stayed, unless the court gives leave for him to continue it. Father asks that I grant leave, and make the order sought. If that is done, he intends to bring a further motion for temporary access, or perhaps temporary custody.
[4] Mother submits that the stay should not be lifted, and that all issues between the parties be addressed in the Superior Court action.
The Facts
[5] The following facts emerge from the motion materials.
Until March 7, 2012, the children have lived their entire lives in Toronto, with their parents.
Mother was primarily responsible for the children, and Father was the breadwinner, working outside the home during the week.
By way of a letter from her lawyer received by Father on March 10, 2012, Mother attempted to negotiate a separation agreement with Father. He did not respond.
Mother and the children are currently living with the maternal grandparents in Goderich.
Mother has brought the children to Toronto twice since the separation to see Father.
The visits which Mother has permitted have been short—under an hour—and have been supervised by her or a member of her family. She says that she will continue to facilitate access of this type pending an agreement or order by the Superior Court. She asserts that visits require supervision because Father has little experience caring for the children alone, and because he sometimes drinks to excess.
Although Father's counsel was not specific about the time he would like the children to spend with him, she was clear that he wants more time than Mother is willing to allow at present, and that he does not accept that there is any need for supervision of the children when in his care.
The Law
[6] Section 27 of the CLRA provides that where an action for divorce is commenced, any application under the Act for custody of or access to a child that has not been determined is stayed, except with leave of the court. The Act offers no guidance as to when a court should grant leave to continue an action under the CLRA after an action for divorce has begun. Some guidance is provided by section 138 of the Courts of Justice Act, which provides: "As far as possible, multiplicity of legal proceedings shall be avoided."
[7] Justice D. Kent Kirkland in Lepper v. Lepper (C.J.), expressed the view that the principle set out in section 138 was the guiding principle for a court exercising its discretion in the decision as to whether to lift an automatic stay under section 27:
"The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court. Clearly, the "staying" provision is designed to prevent inconsistent results among courts, redundant litigation, constitutional entanglements and delay in finality."
[8] That view has been echoed by many other courts.[1]
[9] Caselaw indicates that, in addition to this dominant principle, there are secondary factors a court should consider when deciding whether to lift an automatic stay:
[10] Prejudice. Will a party or a child involved in a case be prejudiced by a failure to lift a stay? The commencement of a divorce proceeding and the consequent automatic stay of a prior CLRA or FLA case usually involves some delay in dealing with the issues in the prior case. Is the delay unreasonable, considering the circumstances of the case? Where children are involved, is there an emergency that requires an immediate decision that can be made more quickly in the prior case?[2]
Prejudice can also be shown in the differential impact that a failure to lift a stay will have on litigants who have significantly different resources to pursue litigation.[3]
[11] Bad faith. Has the party bringing the divorce application raised other issues in that application that can only be determined in a superior court? Is he/she bona fide in raising these issues, or does he/she have no real chance of success?[4] Is he/she simply seeking to relitigate issues that are being dealt with in the prior proceeding,[5] or manoeuvring to obtain an unfair tactical advantage?[6]
Application to This Case
[12] It is clear that if all the issues between these parties are to be dealt with in court, that court must be the superior court, which has jurisdiction over property issues.
Length of time prior action has been proceeding. These proceedings were commenced within five days of each other. No order has been made by the Ontario Court of Justice, except for an order[7] requiring the Applicant to serve his motion and not proceed on an ex parte basis. There is not any work in the Ontario Court of Justice that will be "thrown away" if all issues between these parties are heard in Superior Court.
Prejudice. I do not find that the Applicant father or the children will suffer significant prejudice because of delay if the stay is not lifted. Mother has removed the children without notice to Father from Toronto, where they have lived all of their short lives, and has restricted Father's access to a very short period once a week, supervised. These are radical actions of self help that merit quick judicial oversight. However, no matter what forum Father is in, he will have to persuade a court that a motion should be heard before a case conference on the substantive issues. He can bring that motion in Superior Court. I have no evidence as to the timelines for such a motion in Goderich, but I would expect that any urgent motion could be made within at least two weeks. I do not consider that the prejudice to the children of this delay to be sufficient to lift the stay, and allow litigation to proceed in two arenas on the same issue.
Bad faith. The parties agree that there are real issues between them as to property that require resolution in a Superior Court, even if those issues are not the primary issues in their dispute. In that sense, the Applicant's decision to apply under the Divorce Act at this time is not made in bad faith.
[13] However, in my view, the Applicant's decision to issue her petition in the Superior Court in Goderich does indicate bad faith. Rule 5(1) of the Family Law Rules provides that, if a case deals with custody of or access to a child, the case should be brought in the municipality where the child ordinarily resides. That municipality is Toronto. There is no evidence that there is a danger to the children's safety or health as contemplated by Rule 5(2) that would authorize the bringing of an action concerning the custody of these children in a jurisdiction other than Toronto.
[14] Mother's decision to bring the action outside of Toronto is a good example of "manoeuvring to obtain an unfair tactical advantage." Father will be required to retain counsel in Goderich, or to pay his lawyer to attend there, for a motion to transfer the case to Toronto, and for substantive relief—the return of the children to Toronto, and either temporary custody of or access to the children.
Conclusion
[15] Despite my finding of bad faith on the part of the Applicant, I do not think it is advisable to lift the stay of the CLRA action. The property issues between these parties have to be determined in Superior Court. The case in the Ontario Court of Justice has just begun, and no substantive decision has been made. It is more efficient and economical to have all issues resolved in the Superior Court. An urgent motion can be brought by the Applicant within a short time.
[16] For these reasons, I dismiss the Applicant's motion.
Released: March 30, 2012
Signed: "Justice Ellen B. Murray"
Footnotes
[1] For example, see Sadowski v. Sadowski, 2011 ONCJ 403
[2] See Anderson v. Anderson, 1998 O.J. 3767, and Husein v. Chatoor, 2005 ONCJ 240
[3] See Kucera v. Smith, supra.
[4] See Husein v. Chatoor, supra.
[5] See Kucera v. Smith, supra.
[6] See D.A.D. v. M.D., (1992) O.J. 1984 (Ont. Ct. Gen. Div.)
[7] Rule 14(4) and 14(4.2) of the Family Law Rules provide that no motion may be heard before a case conference dealing with substantive issues has been completed, unless there is a situation of urgency or hardship that requires a decision.