Court File and Parties

COURT FILE NO.: F54/11 DATE: January 16, 2019 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Shoukath Mohammed Ali, applicant AND: Nathasha Ibrahim, respondent

BEFORE: TOBIN J.

COUNSEL: Gary S. Joseph for the applicant Lawrence Blokker for the respondent

HEARD: October 31, 2018; written submissions filed December 4, 2018

Endorsement

The Motion

[1] On this motion, the applicant asks for an order permitting him to apply for and renew passports for the parties’ two children without first obtaining the consent and signature of the respondent.

[2] The issue raised is whether the court has jurisdiction to make the requested order in circumstances where after starting a divorce case in Ontario: (a) the applicant became a resident of Bahrain and obtained a divorce from the respondent in that jurisdiction; (b) has custody orders for the children in his favour from Bahrain and Qatar; and (c) the father and children no longer reside in Canada.

Facts

[3] The facts of this case are somewhat unusual in relation to the request, consequently they need to be set out in some detail.

[4] The parties married June 26, 2003 and are the parents of two children: Nadir Ali, born November 12, 2004 (age 14); and Saif Ali, born February 6, 2007 (age 11) (“the children”). Both children were born in Canada and are Canadian citizens.

[5] The parties separated on December 29, 2010 when the family was in Bahrain for an extended visit to the area and to the applicant’s family and relatives. [1]

[6] On January 14, 2011, the applicant, who had returned to Canada after the separation without the children, started an application in this court seeking, among other things, a divorce and custody of the children.

[7] On that same day, January 14, 2011, the applicant brought a without notice motion and was granted a temporary ex parte order giving him interim custody of the children and permission to bring the children back to Canada from Bahrain. The court also ordered that the residence of the children be at a certain address in London “unless a further Order of the Court is made or the applicant gives notice in writing of a change in address to the respondent 15 days prior to the change in residence.” [2]

[8] On February 3, 2011, the applicant suddenly received a job offer in Bahrain and decided to move there with the children. His then solicitor gave notice of his intention to change the children’s residence to Bahrain. The notice was received by the respondent on February 10, 2011. He and the children arrived in Bahrain on February 24, 2011. [3]

[9] On February 22, 2011, Templeton J. made a without prejudice order directing that the children not be removed from London pending further order of the court and that their passports be deposited with the court. The motion was adjourned to February 25, 2011.

[10] The applicant was served with the order of Templeton J. late in the evening of February 22, 2011.

[11] Despite receiving this order, the applicant removed the children from Canada and the three arrived in Bahrain on February 24, 2011.

[12] In argument before Vogelsang J. in September/October 2011 (which will be addressed later in these reasons), his counsel argued that he left in circumstances where:

1. “the wheels were in motion” for the removal of the children to Bahrain;
2. the applicant considered he fully complied with the motion requirement in the January 14, 2011 order; and
3. the applicant was not served with the entirety of the respondent’s material employed on the motion. [4]

[13] On February 25, 2011, Gorman J. set aside the order of Vogelsang J. made on January 14, 2011 and, on an interim ex parte basis, the respondent was granted custody of the children and a police assist order.

[14] On June 29, 2011, the applicant and the respondent were divorced pursuant to a divorce certificate from the Kingdom of Bahrain.

[15] This case was before the court on September 4 and October 4, 2011 on the applicant’s motion to set aside the orders of Templeton J. and Gorman J. These orders were set aside by a further order of Vogelsang J. dated October 12, 2011, as was his original order of January 14, 2011. At para. 19 of the endorsement of Vogelsang J., he stated:

[19] In my view, the ex parte orders of February 22 and February 25, 2011 must be set aside. They would not have been made had Ms. Ibrahim responded to her duty of absolutely frank and candid disclosure. Instead she chose to mislead the Court. Similarly, there is no legitimate reason why my order of January 14, 2011 should remain. It has been overtaken by events and will be set aside as well.

[16] As of October 12, 2011, there were no outstanding orders in force in the applicant’s Canadian divorce case.

[17] While residing in Bahrain, the applicant obtained an order for custody of the children from the Sharia First Sunni Lower Court of Bahrain on May 23, 2012. The respondent’s appeal from that decision was dismissed in December 2012.

[18] In 2013, the applicant remarried in Dubai, United Arab Emirates, and he and his new wife have two children.

[19] The applicant, his wife, their two children and the children moved to Doha, Qatar in December 2014, where he acquired new employment. The applicant and his family continue to reside there.

[20] During 2017, the parties participated in custody litigation in Qatar initiated by the respondent.

[21] On December 12, 2017, by order of a Qatari court, the respondent’s case for custody in Qatar was rejected and the applicant’s sole custody of the children was continued. The respondent was granted the right to “see and accompany” the children two times per week. An appeal from the Qatari decision brought by the respondent was dismissed on April 30, 2018.

[22] After receiving the December 12, 2017 custody order in Qatar, the applicant sought to renew the child Nadir’s passport through the Canadian embassy in Qatar.

[23] The applicant learned from the Canadian Embassy in Qatar that the passport could not be renewed because the respondent’s signature on the application was required as she had specified access.

[24] The applicant continued in his attempt to have the Canadian passport authorities renew the child’s passport but without success.

[25] The applicant was informed through an email from an embassy official that:

To be able to obtain a passport for his children without the mother’s consent the father will need to obtain a court document. In this court document it will need to be in writing that the father can obtain a passport without mother’s consent.

[26] The unchallenged evidence of the applicant is that he submitted two requests to the court in Qatar for a document containing terms requested by the Canadian embassy official. The court in Qatar did not provide the documentation requested on the basis that the matter related to Canadian law and was not something for the court in Qatar to decide.

[27] Without a passport, the child Nadir missed an overseas field trip with his class and has been unable to travel outside of Qatar to see family or take a family trip to Saudi Arabia for pilgrimage. The applicant further deposes that the children’s health coverage and educational allowance are in jeopardy as they may not qualify for them without passports.

[28] The respondent refuses to sign the passport application because of her belief that, if granted passports for the children, the applicant will move and not tell her where the children are living. The applicant denies that he will move as the respondent believes.

The Issue

[29] It is in these circumstances that the applicant seeks an order dispensing with the respondent’s consent to the application for a renewal of the children’s passport applications.

[30] The respondent does not take issue with the court having the authority to dispense with the requirement for a parent’s consent to obtain a passport.

[31] The issue is whether the court has the jurisdiction to make an order within this outstanding divorce case.

Positions of the Parties

[32] The applicant argues that:

1. the Canadian divorce case remains outstanding;
2. the court still has jurisdiction over the children to some extent; and
3. the order sought is an incident of his custody of the children.

[33] The respondent argues that the court does not have jurisdiction to grant the order because:

1. there is no outstanding custody order in the divorce case;
2. this divorce case has been overtaken by the Bahraini divorce case and Bahraini and Qatari custody cases; and
3. that this court is now without jurisdiction to make any order with respect to custody of the children as they no longer reside in Ontario.

[34] Counsel were requested to provide written submissions on the status of the Ontario divorce case in light of the divorce order granted in Bahrain and the applicant’s reliance upon it in remarrying. In other words, if the Bahraini divorce is recognized as a valid foreign divorce, what jurisdiction, if any then, does the Ontario court have to hear and determine the issue of custody or at least an incident of it?

[35] Counsel did provide written submissions as requested.

[36] The applicant argues that the Bahraini divorce should not be recognized as a valid one in Canada. This would allow the court to make an order in the outstanding Ontario divorce case.

[37] The respondent now argues that the Bahraini divorce should be recognized as valid in Canada and that this court is without jurisdiction to make any ancillary orders.

Analysis

Jurisdiction under the Divorce Act

[38] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] provides for the recognition of a foreign divorce at s. 22 as follows:

Recognition of foreign divorce

22 (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

Idem

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

[39] It is clear on the evidence that recognition of the Bahraini divorce is not possible under s. 22(1). The applicant was not ordinarily resident in Bahrain for at least one year immediately preceding the commencement of that divorce proceeding. He arrived in Bahrain on February 24, 2011. The divorce was granted by the court in Bahrain approximately four months later.

[40] Subsection 22(2) is not applicable in this case.

[41] The respondent relies upon s. 22(3), which preserves the common law rules for the recognition of a foreign divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 9.

[42] At common law, one of the rules that allows for the recognition of a foreign divorce is where either the applicant or respondent had a real and substantial connection at the time of the divorce: Wilson v. Kovalev, supra, at para. 11.

[43] Only in very rare circumstances will a foreign divorce properly obtained pursuant to the laws of another jurisdiction not be recognized by Canadian courts: Kadri v. Kadri, 2015 ONSC 321, citing Martinez v. Basail, 2010 ONSC 2038, at para. 81.

[44] At common law, there is a rebuttable presumption in favour of the validity of foreign divorces. The onus rests with the person challenging the validity of the foreign divorce to demonstrate it was not properly obtained: Wilson v. Kovalev, supra, at para. 10.

[45] In Wilson v. Kovalev, at para. 10, Chappel J. set out the limited grounds upon which a court will not recognize a foreign divorce including the following:

10 …

1. The Respondent did not receive notice of the Divorce Application;
2. The foreign divorce is contrary to Canadian public policy;
3. The foreign court or other authority that granted the divorce ("the granting authority") did not have the jurisdiction to do so under the law of the foreign country;
4. Where there is evidence of fraud going to the jurisdiction of the granting authority; or
5. There was a denial of natural justice by the granting authority in making the divorce order.

(Essa, Supra.; Powell, Supra.; S. (R.N.) v. S. (K.), 2012 BCSC 1874, 2012 CarswellBC 3850 (B.C. S.C.); Pitre v. Nguyen, 2007 BCSC 1161, 2007 CarswellBC 2229 (B.C. S.C.); Sangi v. Sangi, 2011 BCSC 523 (B.C. S.C.); Beals v. Saldanha, 2003 SCC 72 (S.C.C.)).

[46] The applicant did not submit that there are common law grounds upon which the court should not recognize the Bahraini divorce.

[47] I find that the Bahraini divorce should be recognized on the basis that the applicant had a real and substantial connection to Bahrain at the time of the divorce based on the following:

1. When the divorce was started, the applicant lived there with the children.
2. The applicant moved from Canada to Bahrain to take a job.
3. There is no evidence that the job was to be a temporary one or that he went with the intention of returning to Canada or moving elsewhere.
4. It is the applicant who sought and obtained the divorce from the court in Bahrain.

[48] I also take into account that all of the custody and access orders made in the Ontario divorce case were set aside by Vogelsang J.’s order of October 12, 2011, including the one granting the applicant interim custody. Justice Vogelsang stated in his endorsement that the “compelling” basis for setting aside the interim custody order was that “it had been overtaken by events …” These events included the granting of the divorce decree in Bahrain and that “all aspects of custody … and access … [were] squarely before the court in Bahrain and approaching conclusion.”

[49] Once a valid foreign divorce order has been made, a court in Ontario does not have jurisdiction to hear a corollary relief proceeding under the Divorce Act: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 41.

[50] The case before this court is not a corollary relief proceeding. It is a divorce proceeding where custody is claimed as ancillary relief. When it was started, the applicant pleaded that he had been resident in Ontario since January 4, 2004 and that the respondent had been resident in Ontario since April of 2004. In her answer, the respondent pleaded that the family history as set out in the application, including the period the parties resided in Ontario was correct. The court on this basis had jurisdiction, when the case was started, to hear and determine the divorce proceeding.

[51] But the applicant did nothing to move the case forward from June 1, 2012, when Vogelsang J. issued an endorsement on costs in respect of the October 12, 2011 order, until October 3, 2018 when this motion was first returnable. In the meantime, the issues of divorce, custody and access had been addressed elsewhere. The applicant and the children no longer reside in Ontario. It cannot be said that they ordinarily reside in Ontario. The children remain Canadian citizens and it is understandable that their father, the applicant, wants them to have valid Canadian passports.

[52] However, in these circumstances, I do not see how the Ontario divorce case can proceed. A divorce has been granted in Bahrain. This court recognizes it as a valid foreign divorce. The court cannot now grant a further or second divorce order. As it is not proper to grant a Canadian divorce order in respect of a marriage dissolved by a valid foreign order, the court does not have jurisdiction over custody ancillary to its jurisdiction over divorce: Kadri v. Kadri, supra, at para. 72, citing Okmyansky v. Okmyansky, supra.

Jurisdiction under the Children’s Law Reform Act

[53] In his written submissions, the applicant offered another basis for the court having the jurisdiction to make the requested passport order. He argues that this jurisdiction is found in the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[54] Clause 22(1) (a) of the CLRA provides that:

22 (1) 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;

[55] The determination of a child’s habitual residence is provided for in the CLRA at s. 22(2) as follows [5]:

22 (2) 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.

[56] When the application was started, the evidence was not in dispute – and I find – that the children’s residence was with the parties in London, Ontario. This finding allows the court to exercise its jurisdiction to make an order for custody, including incidents of custody, under the CLRA.

[57] When exercising the court’s jurisdiction to make the order sought, it must do so on the basis of the children’s best interests: s. 19(a) and s. 24.

[58] The respondent argues that an Ontario court should not assume jurisdiction to make the requested passport order. The basis of this argument is that the court in Qatar, where the children now reside with the applicant, has already decided issues of custody and access.

[59] I accept that Qatar is the proper place for issues related to custody and access of the children to be resolved, to the extent that that court has assumed jurisdiction. However, the evidence before the court is that the court in Qatar did not assume jurisdiction over renewal of, or application for, the children’s Canadian passports. This is an important incident of custody that ought to be determined on the basis of the children’s best interests. It is to this limited extent that I find that it is proper for this court to exercise its jurisdiction.

[60] If the court were to accede to the respondent’s submission in circumstances where the Qatari court will not address the issue of the renewal of, or issuance of, the children’s passports, this may leave an important incident of custody without a forum for determination. [6]

[61] I find that it is in the children’s best interests for the applicant, as custodial parent, to have the ability to apply for the children’s passports without the mother’s consent for the reasons that follow.

[62] The parties’ son is not able to travel and has missed out on important events and experiences.

[63] The evidence is uncontradicted that the children’s education and health benefits in Qatar are at risk without the passport renewal.

[64] The respondent’s refusal to provide the requested consent is not reasonable. Her belief that the applicant will spirit the children away so that she would not be able to find them is a belief not based on fact.

[65] Without the passports being issued or renewed, the children would be unable to come to Canada to visit with the mother, who continues to reside here.

Conclusion

[66] It is for these reasons I find it is appropriate for the court to assume jurisdiction under the CLRA and order that it is in the best interests of the children that the applicant, who is the their custodial parent, be able to apply for the children’s passports without the consent and signature of the respondent.

[67] An order shall issue permitting the applicant to apply for and obtain Canadian passports for the children, Nadir Ali, born November 12, 2004, and Saif Ali, born February 6, 2007, without the consent and signature of the respondent.

[68] This case has been outstanding far too long and may now be spent. The clerk of this court is directed to deal with this case pursuant to R. 39 of the Family Law Rules, O. Reg. 114/99.

“Justice Barry Tobin” Justice Barry Tobin Date: January 16, 2019

Footnotes

[1] Endorsement of Vogelsang J. dated October 12, 2011, para. 4. [2] See order of Vogelsang J. dated January 14, 2011, paras. 1-3. [3] Endorsement of Vogelsang J., supra, para. 7. [4] Endorsement of Vogelsang J., supra, para. 7. [5] This is unlike the Hague Convention, which does not contain a definition of the concept of habitual residence: Office of the Children’s Lawyer v. Balev, 2018 ONCA 350. [6] Neither party addressed what, if any, jurisdiction the Federal Court would have in this situation.