H. v. A.-M., CITATION: 2017 ONSC 703
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: H., Applicant
AND: A.-M., Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Nathalie G. Fortier for the Applicant;
Sheila Gibb and K. Warren for the Respondent
HEARD: January 23, 24, 25, 26, 27, 2017 at Welland
ENDORSEMENT
1The Applicant, to whom I shall refer as the Applicant or the mother, seeks custody of the parties’ daughter under s.21 of the Children’s Law Reform Act. The Respondent, to whom I shall refer as the Respondent or the father, now moves to stay the application on the ground that the court has no jurisdiction to hear it.
The case
2The child, Layla, now age 9, was born in Egypt. Her mother, the Applicant, is a Canadian citizen. The child’s father, the Respondent, is Egyptian. As a result the child is a national of both countries.
3The three lived together en famille in Cairo until the end of January 2013. At that point the Applicant and the child were in Canada visiting the maternal grandparents. On January 27, at the Respondent’s insistence the Applicant sent the child home to Egypt as the parties had previously agreed, but the Applicant remained in Canada until March. The parties did not resume cohabitation after the Applicant returned to Egypt, although she did stay over at the family home on occasion. The child lived with her father and visited her mother on weekends. Then at the father’s suggestion the arrangement was reversed. After that the mother began restricting and then denying access until court proceedings mandated the usual arrangement in Egypt for parents of minor daughters: the mother had physical custody and the father had access for three hours a week in a public place. He also had “guardianship” which would be the equivalent of non-residential custody in Ontario. That is, he would have rights over major decisions involving the child. In October 2015 the mother cut off all access for a second time and went into hiding. The father obtained an order preventing the child’s removal from Egypt. In June 2016 the mother took the child into Sudan overland. She got a passport for the child from the Canadian consular authorities without the father’s consent and flew with the child to Ontario. She contacted FACS Niagara, the child protection agency.
4In September 2016 the mother applied to this court ex parte for custody of the child and was awarded temporary custody. She did not mention in her application that she knew the father’s email address and where he worked, and that he had a lawyer in Toronto. She served the order on the father by registered mail as ordered. In October 2016 the Respondent received the order and with it, the first news of his daughter in a year.
5The father appeared in this court to object to its territorial jurisdiction. Temporary orders for residence and access were made under s.40 of the CLRA. The child resided with the mother, with supervised access to the father’s sister, with a term that the mother not remove the child from Welland. The mother did not produce the child for the supervised access visits. The matter came on for hearing on December 2, 2016. The mother did not appear. She took the child away to an undisclosed place in Hamilton. On December 2 Sloan J. gave temporary custody of the child to the father’s sister with access to the father supervised by the sister. The police got a warrant for the arrest of the Applicant on a criminal charge of abduction.
6On December 11, 2016 the mother was arrested on the warrant. The child was apprehended. On December 12 the mother was released on bail. She applied for interim access to the child on January 4, 2017 but Maddalena J. deferred the question until after the court has ruled on jurisdiction.
7The motion with respect to jurisdiction was supported by voluminous affidavit material with documents filed by both parties as well as supporting affidavits of other individuals. Cross-examination on the affidavits was conducted before me. In addition, three witnesses were called viva voce at the hearing.
The law
8The Children’s Law Reform Act contemplates four ways in which an Ontario court can assume jurisdiction to make an order for custody of a child: Wang v. Lin, 2013 ONCA 33; H.E. v. M.M., 2015 ONCA 813, para. 22. Those ways are:
a. Under s.22(1)(a) where the child is habitually resident in Ontario;
b. Under s.22(1)(b) where the child is physically present in Ontario and other conditions stated in the section are met;
c. Under s.23 where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm under certain circumstances, including the removal of the child from Ontario; and
d. In the exercise of the court’s parens patriae jurisdiction.
9The aim of the Act is to create a consistent approach to jurisdiction and to discourage the abduction or wrongful retention of children: H.E. v. M.M., para. 27.
10The underlying aim of the legislation is to ensure that applications with respect to custody of children will be determined on the basis of the best interests of the children: CLRA, s.19(a).
11The child is habitually resident in Egypt as that term is defined in s.22(2) of the Act. The Applicant has not admitted formally that the conditions required by s.22(1) do not apply, but on the undisputed evidence they do not. Nor is there any basis for the exercise of the court’s parens patriae jurisdiction. There is no gap in the legislation. If jurisdiction is not exercised here, it will be, indeed has been, exercised in Egypt. The Applicant argued her case on the basis that this court has jurisdiction under s.23 because the child will be subject to serious harm if she is returned to Egypt. The Applicant acknowledged that she has the burden of proof on this issue.
12This is not a Hague Convention case. But the test is the same. In Ireland v. Ireland, 2011 ONCA 623, Jurianz J.A. dealt with s. 43 of the CLRA which provides the conditions in which an Ontario court can supersede an extra-provincial court order. The statutory conditions are identical to those set out in s.23 of the Act. Jurianz J.A. said:
47 Using this approach, the level of harm required under s. 43 of the Children's Law Reform Act in an international custody dispute is not different in substance from the test under Article 13(b) of the Convention. Under Article 13(b), the harm must be of a degree that would amount to an intolerable situation: see Thomson, at para. 80; see also Jabbaz v. Mouammar (2003), 2003 CanLII 37565 (ON CA), 226 D.L.R. (4th) 494 (Ont. C.A.); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.).
48 In assessing whether a situation is intolerable, it must be presumed that the court with jurisdiction to determine what is in the best interests of the children is equipped to make, and will make, suitable arrangements for the children's welfare: see Finizio v. Scoppio-Finizio (2000), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226 (C.A.) at para. 34, citing with approval Medhurst v. Markle (1995), 1995 CanLII 9273 (ON CTGD), 17 R.F.L. (4th) 428 at 432 (Ont. Gen. Div.). MacPherson J.A. writing for this court in Finizio quoted from the decision of the English Court of Appeal in C. v. C. (Abduction: Rights of Custody), [1987] 1 W.L.R. 654 (C.A.) at p. 664, in which Lord Donaldson of Lymington M.R. said:
It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e., the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country -- Australia in this case -- can resume their normal role in relation to the child.
The family history
13The parties married in Cairo in 2001. They lived in Belgium and then Germany. In 2006 they moved to Egypt. The mother worked as a professor at the American University of Cairo. The father worked as a professor at Nile University. He later went into a computer business. They lived in a gated suburb of Cairo. The child was born in 2007. They had money for private school, horseback riding and travel.
14In 2011 the Arab Spring came to Egypt. By 2013 it was over and a military government was in place. Considerable instability remained, which gave the Applicant good cause for concern. Egypt is the subject of travel warnings to Canadians by the federal government even today. By the autumn of 2012 the Applicant was seriously reconsidering the family’s life in Egypt. A contemporary email authored by her suggests that the principal reasons were the political and security instability, the place of women in Egyptian society and the Respondent’s preoccupation with political matters. The parties were discussing whether to move to Canada. The Applicant favoured relocating the family. The Respondent on the other hand was committed to staying in Egypt, continuing to build their life there and contributing to the future of the country.
15The parties agreed that the Applicant and the child would visit the Applicant’s parents in Welland for Christmas 2012 and return at the end of January 2013. By then the Applicant had another reason for preferring Canada: to obtain counselling for the child in the wake of an incident of sexual abuse that had occurred in 2012.
16On one occasion when both parents were tied up with work, the Respondent’s sister helped with child minding at the last minute. The sister sent her driver to pick the child up. According to the Applicant, the child disclosed to her that the driver had abused her. The Applicant informed the rest of the family. The Respondent’s sister immediately fired the driver. No police report was filed.
17During the Christmas visit to Canada the Applicant took the child to the Hospital for Sick Children in Toronto where she was examined and interviewed by professionals. The physical exam, like all physical exams to which the child would be subjected, could not determine whether sexual abuse had occurred or not. The health care professionals at the hospital recommended a course of counselling. The Applicant was of the view that proper counselling could not be obtained in Egypt. She wanted to stay in Canada with the child to let this happen. She registered the child in school and got her a health card. The father, by now nervous as to the mother’s long-term plans for the child, insisted that she return home on January 27, 2013 as agreed. The mother sent the child home.
18In texts to the father sent on January 28, 2013, when Layla was en route home, the mother said:
Please play with her, read to her, dream with her, imagine with her, paint the world with her in a million beautiful hues. …
Sing to her, dance with her, cook for her, bake with her, hold her hand, braid her hair and most importantly listen carefully to everything she tells you and never doubt or diminish anything she says. …
I wish both of you great happiness.
19This looks to me like a valedictory, which is consistent with the mother’s behaviour over the next few months. She took a secondary role in child raising. Later she changed her mind.
20The mother remained in Canada until March of 2013. On her return to Egypt she stayed with a friend and then, once she started work again, got her own place. She also stayed overnight at the former matrimonial home on occasion. She deposed that the Respondent had put her out onto the street, but after hearing her cross-examination I can only conclude that that was not true. It is evident from one of the child’s utterances that the Applicant told the child that her father put her onto the street.
21In the summer of 2013 the parties had separate vacations. The mother travelled in sub-Saharan Africa. The father and daughter went to London, England and then the father took the child to see the maternal grandparents in Ontario. He did not have a visa for Canada, so he flew with the child to Buffalo and then picked her up from there to return home.
22Also that summer the mother took the child to Rome on holiday with the father’s consent. She asked the Canadian consular authorities in Rome whether she could be stopped at the borders if she took the child to Canada without the father’s consent. They said that she could be stopped. They returned to Egypt.
23The child stayed mainly with her father for a time, visiting her mother on weekends. After some months the arrangement was reversed at the father’s suggestion. The mother then began to restrict the father’s access.
24The father asked the mother for an overnight every other week. The mother refused, saying that since they are no longer a family, Layla needs the stability of her home, which is with her mother.
25The mother deposed, “On November 2, 2014 Layla began for the first time since the initial discovery of abuse in 2012, to discuss freely the subject of her abuse with me.” She quotes herself from an email to a friend, Brooke Comer: “She told me the main pain she had was from the [thought of] seeing her father.” The editing in square brackets was done by the mother. The emphasis is added by me. The actual email was attached as an exhibit. Unedited, it read, “She told me the main pain she had was from wanting to see her father.” The text of the affidavit was therefore misleading. On the other hand, the email was attached as an exhibit to the affidavit. Either the Applicant was deceiving herself or she did not think the court and the lawyers would read the entire materials.
26This email provides a lengthy account of this conversation between mother and daughter. The entire text is too lengthy to quote in its entirety. Having read it, to me it suggests that the mother was actively encouraging her daughter to “open up about past hurts.” The child would have understood that her mother wanted her to talk to her about such things.
27The mother continued in her affidavit, “Over the Christmas holidays [2014] Layla tried to tell me details about the abuse. Again, at the time I thought she was referring back to a single traumatic incident. I did not yet realize that abuse had been ongoing or at the hands of the respondent. She did a drawing of trees. She drew a series of people and her father, lined in a row. At that time she was not able to name what was in the picture other than the hurt and pain that was caused and that she cannot talk about it.”
28The picture is attached as an exhibit to the affidavit. It is a drawing of a tree underneath Christmas garland, with presents at the bottom. There is a stick man, identified as “baba” with presents in his arms. Arrows are drawn from the presents in his arms to the presents under the tree. It seems quite plainly to me to be a picture of the family together at Christmas, with daddy bringing presents to put under the tree. There are other drawings, interpreted by the mother as drawings inspired by the pain of sexual abuse. There are some words written on a note pad that speak of man woman club and so on, but the drawings are just series of parallel lines joined at each end, like a fence.
29In March 2014 each party got an order from the Egyptian court prohibiting the other from leaving the country with the child. In April 2014 the mother cut off all access to the father for nine months, until February 2015. The father went to court.
30Before access was cut off, the father brought up the subject of increased access with the mother in a text exchange. The parties discussed the question in the following terms:
[Mother]: You will need to work in reading and writing with her in Arabic as she cannot read or write the letters and she is behind the other children in her class.
[Father]: Yet how when u only allow 8 hours a week with her?
[Mother]: Everytime she comes to you you can read together as she and I do in English.
This is her right as a child to have stability. What are you expecting exactly?
I can restrict it to 3 hours if you wish.
[Father]: Wonderful. … Well done and said.
31The mother was right about what the court would order. The court awarded the mother physical custody and allowed the father access for three hours on Friday afternoons.
32In July 2015 the mother was in contact with the Canadian embassy in Cairo. On July 26 she sent them a report from a Cairo psychologist, Monda Joseph, who wrote, “Layla’s own verbal reports and observable behaviour may indicate that Layla has experienced recent incidents of sexual advancements by an ill-defined male figure.” The mother was asking the embassy to facilitate her return to Canada with the child so that the child could receive counselling in Canada. On July 27, 2015 the mother emailed a consular official, “Layla has already packed her suitcase after meeting you in your office yesterday.”
33The mother testified that Layla had disclosed sexual abuse by the father in the meeting with Monda Joseph but that Ms Joseph was not prepared to put that into writing for fear of repercussions from the father. Later Renée Johnson of FACS spoke to Ms Joseph, who told her that no disclosure had been made. The child was showing signs of disturbance and hostility to men, which could have been the result of sexual advancements by an ill-defined male figure.
34The child’s first disclosure of sexual abuse by the father was made to the mother the next day, July 28, 2015 in the following terms:
My father touches my private parts when I was younger and I was living with him without my mom. My mom was thrown on the streets by my father. I did not know that at that time. He’d take me to the bedroom and touch my private parts for an hour. I did not know what he was doing. I thought this was another way to be loving. But when I grew older, like when I’m this age, I actually realize what he had done and now he did it again.
Just a few weeks ago he took me behind the bushes in the club and umm he touched my private parts then too for 15 minutes. Then he stopped and we went back. I was so upset by what he had done but I was so astonished I couldn’t even say one word. But I did not go Ahhh like I like it, no. I had to look away like this. I couldn’t do anything else. My father was too strong for me, so I said let him do this, I’ll tell my mother. She’ll help me in a way.
35The transcript does not capture the tone of the disclosure. The child speaks in a monotone with unnatural pauses, the way children often read lines in the school play. She seemed to be reading from a script. She was not reading, but to me it was obvious that she was reciting a prepared speech from memory.
36The mother made another video on September 10, 2015. In it the child discusses the feelings that she has that have led her to hurt herself. She says that dancing around helps to change the feelings and when that does not help, cutting herself works. She agrees that the feelings she is talking about are being hurt and sad. She is reluctant to say what is giving her these feelings. Finally she spells out “baba” with her finger on the mother’s arm. The mother then asks, “Why are you mad at baba?” The daughter acts out disclosure of sexual touching. She then leans over to her mother and whispers, “Tell them.” Looking at the session as a whole, it is evident to me that the child knows that her mother wants her to say something bad about her father, and the child is looking to the mother to fill out the content.
37This is consistent with the child’s forensic interview in September 2016 when the first thing she told the child protection worker was, “I told my mother all this. You should ask her.”
38To return to the chronology, from February 2015 until October 2, 2015 the mother took the child to a recreational club on Friday afternoons to visit the father. The mother stayed during the visits, videotaping them. She deposes that on one such visit she saw Layla on her father’s lap and the father appeared to have an erection. She approached to let him know that she was watching, but did not otherwise confront him.
39By contrast, in another Friday afternoon visit, the father taped the mother taping him. Layla could not see that he was taping, but the mother could. The father asked the child, “What is your favourite thing to do in school?” The mother, who was sitting nearby, said, “Don’t answer him while he is recording you. … He is being an asshole.” She manifests no reticence on this particular video.
40After October 2, 2015 the mother never again brought Layla to the club for an access visit. She moved out of her apartment and went out of sight. The Respondent never heard any more about his daughter until she surfaced in Ontario a year later.
41On October 3, 2015 the mother took the child to Dr Nabil Fawzy of Heliopolis. He wrote a note in imperfect English on his letterhead saying that Layla “had signs of sexual abuse for long time physically and she is in need of psychological treatment because she is emotionally disturbed on examination had a weak anal reflex and dilated anal sphincter and a whitish old scar on her hymen. Renée Johnson of FACS telephoned Dr Fawzy in the autumn of 2016 during her investigation of the case. He remembered the case and told her that the child had some scratches on her anus which were not necessarily the product of sexual abuse and that she was under considerable stress. He clarified that the source of the statements about sexual abuse was the mother, who made multiple statements about sexual abuse in the presence of the child.
42The mother continued her efforts to get the Canadian government to get her the necessary paperwork to take the child to Canada. The embassy, however, suggested local solutions. The ambassador himself, accompanied by the mother’s Egyptian lawyer filed a report with the police on the mother’s behalf alleging sexual assault committed by the Respondent on his daughter.
43The report alleged that in October 2015 after a visit at the club the child told her mother that her father had fondled her in the washroom of the club. The mother confronted the father, who promised not to do it again. On the next visit, however, the mother followed the two into the washroom and interrupted the father as he was about to fondle the daughter again. The mother admitted in cross-examination that this report is not true. She never followed her daughter into the washroom and in fact the records of the club show that there was no second visit in October 2015. The mother did not, however, admit responsibility for the inaccuracy. I cannot imagine where the lawyer or the ambassador would have got such detailed information if not from the mother. I find that this police report was a deliberate slander of the father by the mother, intended to convince the Canadian authorities to help her leave Egypt without the father’s consent.
44Embassy records show that on October 13, 2015 the Applicant met a consular official and showed her drawings made by the child that explained that two years earlier when the child was with the father in London, England ten men sat across from ten children. The men got drunk and took turns raping the children. The same thing happened in a restaurant in Egypt called Ali. And a similar thing happened in a hotel by the Red Sea where a foreigner, probably German, was also involved.
45The embassy offered the Applicant considerable support but was not willing to authorize the child’s return to Canada in contravention of the Egyptian court order. Instead, they continued to offer local solutions.
46In February 2016, at the suggestion of the Canadian embassy, the mother’s uncle Paul went to Cairo to negotiate a settlement with the Respondent. He deposed that he met the Respondent twice. They came to a tentative agreement that the child would be examined by mutually agreed experts from outside Egypt to determine whether the child had been abused, and that they would decide custody after the experts reported. The Applicant mother did not agree. She began to look into experts, but in June 2016 she disappeared with the child a second time.
47Paul also deposed that on the second day of meetings he discussed seeking expert counsel with respect to Hereditary Haemorrhagic Telangiectasia, a genetic blood disorder that afflicts the Applicant and which the child may or may not have inherited. Unbeknownst to the uncle, the Respondent was recording the meetings. The recording contains no reference to HHT. Confronted with this on cross-examination, Paul challenged the accuracy of the recordings. They could have been switched off by the Respondent at will or edited out before submitting the recording to the transcriptionist. He also doubted their admissibility in court, as if that were of any use in determining whether he is telling the truth.
48I doubt that the recording is incomplete. I prefer the Respondent’s evidence on this point. I think that the uncle mentioned discussion of HHT in his affidavit to bolster the case for the child living in Canada instead of Egypt, not knowing that he could be contradicted. In other words, he lied. I do not find him credible as a witness.
49Paul has a seriously biased view of the case. For example, he deposed that resort to an Amber Alert was a ridiculous escalation of a simple custody dispute. He did not, however, think that abducting the child (twice) in defiance of court orders was a ridiculous escalation.
50Another example of his bias is found in his treatment of the terms he offered the father. In Paul’s opinion his demands were not extortionate. I disagree. He told the Respondent that if they came to an agreement about custody of the child, the Applicant would not press the police investigation or cooperate with it. He says that he was trying to build a bridge between the families. I think that he was using the threat of criminal prosecution to extort the father’s cooperation. I think the Respondent’s comments to the uncle on this subject were admirably restrained. He was quite right to wonder, “If I am a paedophile rapist why are you negotiating with me?” I do not think that the Applicant, through her brother, was negotiating in good faith. She was stalling while she held onto the child and planned her next move. I am not prepared to rely on the evidence of this witness.
51Her next move was to leave Egypt via Sudan and get home to Canada, which she did. She went across in a truck in the company of persons she described in her affidavit as Bedouin camel traders. She later described them to Renée Johnson of FACS as drug traffickers. The Applicant deposed that while in Sudan she made wonderful friendships at the daily evening feast that broke the fast of Ramadan. Layla, on the other hand, described this time in her forensic interview at FACS as “going to Hell and back.”
52The Applicant had sole possession of the child in Canada from her arrival here in August 2016 until her arrest in December 2016. In all that time she did not have the child tested for HHT. I doubt whether it was ever a serious priority.
53According to the Applicant’s affidavit, the child continued to make disclosure of sexual abuse by the Respondent. Reference to one is sufficient.
54On June 1, 2016, the child told her mother on video that when “my mother got divorced” – she referred to her mother in the third person even though she was talking to her – “and I had to live with him for a year” certain things happened that she had to get past without going mad. She spoke of domestic assault by the father on the mother. Then she said she was scared but also because of the factory. It was a factory for “slavery,” “abuse,” “sex and murder.”
I went there. My father is in charge of it. He would marry us off for a week. That week we always stayed for that man. I got less because I was his daughter. But I cried. I had fits because of what happened to me and the other kids. The other kids almost went crazy. Some of them went crazy. Some of them got a little crazy.
Q. How did you know they got crazy?
A. They’d think up crazy ideas.
Q. Like what?
A. Like they’d really go. They wouldn’t whimper. They would say, “Yes, this is lovely. I love this!” but it was horrid. The moment they started not to whimper we knew they were going crazy.
Q. Can you describe the factory?
A. The factory had blue windows. I don’t know what happened to it. Guess my father broke it down. But it had five hundred rooms and all of them he could change. And there were three halls. One was the marriage hall. One was the hall leading to the two halls and one was the thinking hall where no one else but my father and high up people in that factory could think. So that he would make it scarier because kids were starting to get used to it. Or give more doses of alcoholic and things that would not make – make us not tell. So – and the five hundred rooms were almost always used up. One room was full of the dead bodies. The bodies that hadn’t survived. The kids that had laid down, closed their eyes or closed their eyes when they were up, like this and the shackle just went limp, meaning they were dead.
Q. How did they die?
A. Too much pressure.
Q. What do you mean?
A. Um, they had too many doses.
Q. Doses of what?
A. Doses of antibiotic. Doses of forgetting medicine. Doses of many things. Doses of forget this. The thinking room did many bad things and my father was the leader of it all.
Q. And how did that make you feel?
A. Horrid. I just knew before I grew up that I was going to kill that man. He was worth less than a rat.
Q. How did you get introduced to the factory? … How did it begin?
A. Well, it started when I was very young. He said we were going to a sweetshop and I always liked sweets ever since I was introduced because my mom wouldn’t let the family give me sweets until I was three years old. So I was very healthy and it – but then there was an overflow of candy so.
Q. And it was a sweet shop that you were taken to?
A. No. It was the factory. It was two times the size of my house or twenty. I was scared.
55On September 27, 2016 Renée Johnson of FACS conducted a forensic interview. The child told her that there were a thousand men and hundreds of children. She thinks they gave her a drug to stop puberty but she could not explain what puberty meant. She also told her that her father has trouble building boundaries around her but she could not say what that meant. She did not say anything about the recreational club of Friday afternoons in Egypt but said things happened in Egypt and maybe Germany.
56The child was unable to give any specifics and unable to tell her about the last time anything happened that made her uncomfortable.
57Ms Johnson told the Applicant that she had concerns about the veracity of the child’s disclosure. The Applicant went to her supervisor to ask that she be replaced.
58Later, after having been re-united with her father under the supervision of her aunt, the child told Ms Johnson that she wanted to tell the judge that she wants to live with her aunt, not her father because in Egypt he used to be nice but now he’s making these rules, speaking about bed time and homework and so on. It was put to Ms Johnson that if you place a child with her abuser, she will accommodate him. Ms Johnson testified that in her several visits to the home she saw no sign of that. She testified that Layla is comfortable with her father, jumping on his back as he walks by, and that she has seen Layla challenge her father. She shows no fear of him.
59After the child was back in Canada the maternal grandmother deposed that during the 2013 visits she noted certain behaviour by Layla that she now thinks are the product of sexual abuse. That by itself would not point to the Respondent, because in 2013 the supposed sexual assault by the driver had recently occurred. In any event, she noticed
a. One day while shopping, Layla hid behind a coat rack in the store;
b. Layla was shy whereas previously she had been outgoing; and
c. Layla did not want to change into her pyjamas at night.
60In cross-examination the grandmother testified that Layla had made disclosure directly to her since her return to Canada. Asked why she did not mention that in her affidavit of January 12, 2017, she became flustered. Eventually she said that she could not recall. I do not think that she would not recall leaving such an important thing out of an affidavit. By the end of her evidence it was not clear whether she was maintaining that Layla had made direct disclosure to her or not. She lost her composure and made repeated excited references to placing a child in the home of a rapist. I found the whole performance lamentable. She is hopelessly biased and not to be trusted. Like her brother, she buys into the conspiracy theory explanation for the Respondent having copies of certain emails. In fact, the Respondent got a hold of a couple of emails sent by the Applicant to her network of friends because one of the friends forwarded them to him.
Analysis
61The Applicant’s affidavit suggests a number of considerations in support of her position that the child will suffer serious harm is she is returned to Egypt:
a. Sexual abuse by the father;
b. Lack of resources in Egypt to diagnose and treat HHT;
c. Domestic assault and abuse committed by the father; and
d. Prevalence of female genital mutilation in Egypt.
62In addition she submits that the Egyptian courts are not well-placed to deal with any problems that might arise given their patriarchal approach and antiquated values.
63The only factor pressed in argument was the danger of sexual abuse, combined with the alleged insufficiency of the Egyptian courts. I can deal with the other factors readily. I am not satisfied that there are inadequate resources to deal with HHT but I am satisfied that the Respondent has the means and the will to do what is necessary for his daughter’s health. He could easily take her to Europe if necessary. In this case he has demonstrated considerable commitment to his daughter. He has offered to pay for independent experts to investigate sexual abuse, he has left his home and stayed in Canada for months and enlisted his sister, at great sacrifice to her, to come and supervise. If the daughter has HHT, she will not suffer on that account for returning to Egypt.
64On the evidence before me it is inconceivable that the Respondent would find female genital mutilation acceptable. Looking at his own recorded communications it is evident that he treated the Applicant as an equal even in times of serious disagreement and frustration. He comes from a family in which women go to university and get graduate degrees. FGM is utterly irrelevant to the case at bar.
65I do not believe that the Respondent has been or will be an abusive husband, physically or emotionally. He admitted that on one occasion in which he was under unprecedented stress and shortly before which he had been physically provoked by the Applicant, he slapped her and walked away. His own word to describe his conduct was “inexcusable,” which it was. But this one incident in these circumstances is not a pattern of abuse. I do not believe the Applicant’s assertions that the Respondent was emotionally, verbally and physically abusive to her or the child on other occasions. In the unlikely event that the Respondent finds himself under comparable stress in future I think that he will have learned from his mistake and will be very unlikely to repeat it. I also note that there was no objective proof of the slap. The Respondent could plausibly have denied it. I think his reason for admitting it is that he believes in telling the truth. I found him to be a credible witness.
66The case turns on whether the child faces a risk of sexual abuse if she is returned to her father or returned to Egypt. The Applicant’s conduct has been criticized by counsel for the Respondent. Much of this criticism is fair, but my focus in this case is not on the Applicant’s conduct. That will be taken into consideration by whatever court decides custody, whether here or abroad. My focus must be on whether the child will be subject to serious harm if this court does not take jurisdiction. In the circumstances the practical effect is that the focus is on the conduct of the Respondent.
67I understand that often children do not like to talk about being sexually abused and they delay disclosure of it. Sometimes disclosure is inconsistent and sometimes it is incremental. They cannot be expected to be good with dates, numbers and sometimes even sequence of events. On the other hand, it is fundamental to understanding children’s complaints that they are very suggestible. Children like to please their parents. If they are isolated from one, they often like to please the one upon whom they are dependent for their immediate needs. Care has to be taken not to suggest things to them.
68The Applicant kept the child from her father. The Applicant was obviously in conflict with the father and did not keep this from the child. She told the child that her father had put her onto the street. She called him an asshole to his face. When the child said something about baba made her hurt and sad, she asked her, “Why are you mad at baba?” According to Renée Johnson, whom I found impressive, knowledgeable and highly credible, the maternal grandmother told her that the Applicant talked about the father abusing the child on the telephone within earshot of the child. The Applicant took the child to Doctor Fawzy and told her about sexual abuse in front of the child. The mother had the child denounce her father on video. This child was unquestionably subject to suggestion by her mother.
69It is important to look at the nature of the disclosures. They involve gangs of men, a 500 room sex and murder factory, and all sorts of fantastic details. Why would a child say such things? They are obviously the product of the child’s imagination. She does not know much about sex, but she knows that her mother thinks her father is bad in a sexual way and her mother thinks it is important for her to talk about it. So she made up a story. It looks like a child’s story. It is not always the same story. The Applicant testified that she believed these tales. That cannot be true. They are so implausible as to be impossible. To say that they ring false is a colossal understatement.
70The case for sexual assault depends heavily on the evidence of the Applicant. In order to assess her credibility as a witness I have to consider the Applicant’s inconsistent statements in the litigation. I mention some of them here.
71In her affidavit of August 30, 2016 she says that Layla disclosed physical abuse by an ill-defined bad man in December 2012. In her affidavit of January 13, 2017 she says that she assumed it had been the driver who abused her. In her affidavits she did not mention that when Layla made disclosure, the Applicant told the father and others that the driver was the perpetrator.
72The Applicant said in her affidavits of August 30, 2016 and January 13, 2017 that the Respondent did not come to Canada at Christmas 2012 because he had more important business to attend to. But she admitted in cross-examination that the Applicant did not have a visa at the time.
73The Applicant summarized several emails in her affidavit of January 13, 2017 in an inaccurate way. Her explanation was that she was going from notes, as opposed to the emails themselves, which she included. That explanation is implausible.
74In her affidavits of August 30, 2016 and January 13, 2017 the Applicant says that Layla returned from her first overnight visit with her father in February 2015 describing her father touching her breasts and pinning her down naked on her bed. But in cross-examination she said that Layla first identified the father as the abuser in June 2015.
75With respect to the Applicant’s credibility as a witness I need to consider her motivations. To do this I need to take a look at the timing of the whole affair. The striking feature of the history as a whole is that increased disclosure always suited the Applicant’s purposes.
76The Applicant has wanted very much to leave Egypt since 2012. She hoped that the Christmas vacation of that year would turn into a permanent move. She knew her husband was reluctant but she hoped psychological treatment for the daughter’s sexual abuse at the hands of the driver would tip the balance in his mind. In hindsight I have doubts as to whether the child was abused by the driver, but that is not essential. When she could not stay in Canada with her daughter, the Applicant sent her home and eventually progressed to her next attempt to get her back.
77After taking a break from child rearing, the mother denied access then interfered with the minimal access ordered by the Egyptian court. The mother got her daughter to make videotaped disclosures that were obviously rehearsed or led. Then she went into hiding and made a demonstrably false claim of sexual assault by the father to the Canadian embassy, who assisted her in filing it with the police.
78When the Canadian embassy would not get her out of the country, she left on her own. She got home with more help from Canadian officials in Sudan and went to FACS. She got an ex parte order from the court when she could easily have given the Respondent notice. When the Respondent decided to come to Ontario so that his side could be heard, the Applicant asked the court to make an order preventing this. When the Respondent finally got his day in court, the Applicant abducted the child, resulting in a further delay.
79Taking into consideration the Applicant’s conduct and its timing, her motivation, her own inconsistent statements and the quality of Layla’s eventual disclosure, I conclude that the Applicant is not a credible witness. She is a remorseless and persistent liar.
In Egypt he used to be nice
80The Applicant has urged me to give Layla a voice. She submits that the Respondent, by opposing her motion for the involvement of the Office of the Children’s Lawyer, is motivated by the desire to deprive Layla of her voice.
81First, the involvement of the Children’s Lawyer is premature. If this court has jurisdiction, the Children’s Lawyer may well be asked to participate. There is no point in involving that office if the matter is not going to proceed here.
82Second, Layla’s voice is not necessarily what the mother has produced through years of relentless pressure. I am just as inclined to rely on Ms Johnson’s observations in this regard. Now that she has been away from her mother’s pressure for only a few weeks, Layla’s main preoccupation seems to be negotiating her homework and bedtimes. She complains because her father, assisted by a renowned child counsellor, is imposing normal structure. He is no longer the Friday-afternoon-at-the-club parent. “In Egypt he used to be nice.” That is Layla’s voice.
83In summary, I find no credible evidence of the prospect of sexual abuse for the following reasons:
a. The child’s disclosures are incredible on their face;
b. They came when it suited the mother’s purposes;
c. The mother isolated the child from her father and put her under relentless pressure to accuse him;
d. The medical evidence is inconclusive;
e. The observed conduct of the child is consistent not only with sexual abuse but could also result from the stress of her parents’ separation and her mother’s psychological pressure; and
f. The Respondent denied the allegations and I found him credible and accepted his evidence.
84I am convinced that the allegations of sexual abuse by the father are a malicious contrivance of the mother. She is very adept at convincing others of her story by presenting select elements of it. But when the story is viewed from beginning to end it collapses.
85I add that nothing before me displaces the presumption that the foreign court will concern itself with the question of any risk of harm to the child and do what is necessary to minimize or eliminate it. Contrary to the Applicant’s assertions, the Egyptian courts place female relatives in a favourable position when it comes to custody of minor daughters. The Applicant herself was always represented in the Egyptian court and had a significant degree of success.
86For these reasons I declare that this court has no jurisdiction over the permanent custody of the child. Under section 40 of the CLRA I order the Respondent to return the child to Egypt and make the temporary orders requested in terms of the draft provided by the Respondent. The parties may make written submissions to costs as set out in the draft.
J.A. Ramsay J.
Date: 2017-01-27