Court File and Parties
Court File No.: FS-21-24032-0000 Date: 2023-05-01 Superior Court of Justice - Ontario
Re: Raha Mehralian, Applicant And: Michael Dunmore, Respondent
Before: L. Brownstone J.
Counsel: Anthony Macri, for the Applicant Meghann Melito, for the Respondent
Heard: March 6, 7, 8, 22 and 24, 2023
Reasons for Decision
[1] The applicant wife, Raha, and respondent husband, Michael, were staying in an apartment in Toronto with their 5-month-old son, M, when they separated in May of 2021. Michael claims that they were temporarily in Toronto away from their usual home in Oman, and that Raha has wrongfully retained M here. He seeks an order returning M to what he claims is the child’s habitual residence in Oman under s. 40 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[2] Raha claims that that this is a simple case under section 22 of the CLRA, that the family was living in Ontario when the parties separated, and that the child’s habitual residence is in Ontario. Therefore, she states, the parenting issues are properly subject to the jurisdiction of this court. In the alternative, she argues that this court has jurisdiction under s. 22(1)(b) and/or s. 23 of the CLRA, and/or the court’s parens patriae jurisdiction.
[3] The issue in this case is whether the Ontario courts have jurisdiction over the parenting issues. The parties are agreed on the analysis the court must apply.
[4] First, the court must consider whether Raha has demonstrated that M was habitually resident in Ontario at the time the application was commenced (s. 22(1)(a) and 22(2) of the CLRA). If he was, Michael’s motion must be dismissed. If not, the court considers whether Raha has satisfied the court that it has jurisdiction under s. 22(1)(b) of the CLRA, which requires six factors to be met. If no jurisdiction is found there, the court considers, again with Raha bearing the burden, whether serious harm would result to M if he were removed from Ontario (s. 23 CLRA). If not, the court considers whether to exercise its parens patriae jurisdiction (see s. 69 CLRA). If Raha does not satisfy the court that jurisdiction exists, the court declares that the child is wrongfully retained and may issue a removal order under s. 40 of the CLRA.
[5] For the reasons that follow, I find that M was habitually resident in Ontario at the time this application was commenced. Therefore, this court has jurisdiction under s. 22(1)(a) of the CLRA. I also make the alternative finding that this court has jurisdiction under s. 22(1)(b) of the CLRA. Given those findings, I do not consider the s. 23 or the parens patriae arguments.
Procedural History
[6] This matter has an unfortunately long and somewhat complex procedural history which has led each party to argue that the issue is res judicata, and which I therefore summarize here.
[7] The parties separated on May 30, 2021. On June 2, 2021, Michael commenced proceedings in the Ontario Court of Justice (OCJ). He sought to bring a 14B motion asking that court to order that M be placed in his care; or in the alternative to order that he reside with each parent equally, and in the further alternative, to order “liberal and generous parenting time with each parent”.
[8] On June 11, 2021 Weagant J. of the OCJ issued the following endorsement:
If I understand the original request correctly, it is a request for an urgent motion. However, the materials seem to support the notion that Ontario does not have jurisdiction to do anything.
I disagree that the Ontario court is without jurisdiction. The child was born here and has been living here and has no domicile in the mid-east except wherever father may find his next employment. Ontario has jurisdiction.
The respondent claims that this is a Superior Court matter because property was mentioned in the materials. The matter over which this Court has been asked to rule is parenting related. If there is a divorce and/or a property claim in the future, counsel will have to determine which court at that time has jurisdiction.
The urgency in this matter arises because the applicant is leaving the country for new employment at the end of June and wishes some certainty as to parenting before that happens. I can give the parties motion time on June 24 at 2:45.
[9] On June 16, 2021, Michael advised Raha, through counsel, that he was prepared to withdraw his claims in the OCJ and vacate the June 24, 2021 date. He advised that he would continue to object to Ontario being the appropriate jurisdiction in Raha’s Superior Court of Justice proceeding, and that Oman or United Arab Emirates was, in his view, the appropriate jurisdiction.
[10] Raha commenced this application on June 18, 2021, the day Michael withdrew his OCJ proceeding.
[11] Michael also started a proceeding in Oman on June 17, 2021, in which he sought a divorce and custody of M. The court of first instance in Oman declined to exercise jurisdiction. On appeal, the Omani court overturned the lower court. Ultimately, the Omani courts granted a divorce and awarded primary custody to Raha.
[12] This motion was originally scheduled as a two-day motion to be heard in March of 2022. It was adjourned to May 31, 2022 to proceed as a one-day motion, addressing both the jurisdiction issue and the enforcement of the Omani divorce. Argument did not get completed on May 31, but argument on the jurisdiction issue was completed on June 9. Papageorgiou J. reserved on the issue of jurisdiction and released an endorsement seeking clarification from the parties on a number of issues. On October 14, 2022, she released her endorsement, which requested submissions on whether the Office of the Children’s Lawyer (“OCL”) should be appointed to represent M, and directed the 5-day trial of an issue before her to resolve the following issues:
What were the settled intentions of the parties:
a) Why did Raha and Michael travel to Ontario in March 2020 and why did they remain here?
b) Why did Raha and Michael travel to Oman in January 2021?
c) Why did Raha and Michael travel back to Ontario in April 2021?
Abuse
a) Did Michael abuse Raha during the marriage?
b) Did an assault take place on May 30, 2021?
c) Did Raha have a plan to improperly establish Toronto as M's habitual residence prior to the separation? Did she fabricate the assault in furtherance of this plan?
Michael's Residency in Oman
a) Was Michael legally required to leave Oman in April 2021 when he lost his job?
b) Were Michael, Raha and M legally permitted to stay in Oman in April 2021 after Michael lost his job?
Michael's OCJ 14B Motion
a) What communications did the parties and their counsel have prior to Michael's withdrawal of Michael's OCJ Application?
Raha's Residency Status in Oman
a) Is Michael's stated commitment to assist Raha with residency in Oman sincere?
b) How likely is it that Raha will successfully obtain residency in Oman?
c) If Raha ultimately does not obtain residency in Oman, will this constitute a harm to M?
[13] Shore J. scheduled the 5-day jurisdiction motion to commence on November 28, 2022. The issue of the recognition of the foreign divorce granted by the Omani court was to be added to the issues to be determined on the motion.
[14] On November 22, 2022, Papageorgiou J. released her endorsement on the OCL issue, deciding that the OCL should be requested to participate on behalf of M. The November dates were adjourned. Michael sought and was granted leave to appeal the decision of Papageorgiou J. to the Divisional Court. Before that appeal could be heard, the OCL advised that it was declining the file, so the appeal was no longer necessary. The issues of the recognition of the divorce and the parenting jurisdiction were separated, and the divorce issue was heard on February 9, 2023. On February 13, 2023 Myers J. issued his decision recognising the Omani divorce (2023 ONSC 1044).
The res judicata arguments
[15] Each party argued that the issue before me was res judicata. Raha, for her part, relies on the OCJ endorsement to ground her argument that the issue of jurisdiction has already been decided. Michael relies on the endorsement of Myers J. to ground his argument. Neither side advanced its respective position forcefully, and I accept neither argument on this issue. The OCJ’s endorsement was not a finding made after full argument on the issue and did not take the form of a final order. The endorsement of Myers J. dealt only with the divorce issue, which applies different factors and analyses than the within motion. In fact, Myers J. specifically stated:
[23] If the outcome turned on the facts involving the parties' connection with Oman or concerning the validity of notice of the divorce allegedly given to the applicant, I could not decide the motion. With the trial involving the same facts coming up in a matter of weeks, it would not be appropriate for me to make findings of fact to create the possibility of inconsistent findings being made at trial.
[24] However, the motion can be determined on facts that are both undisputed and are entirely distinct from the factual issues to be decided at trial.
[16] I will therefore proceed to consider the matter on its merits.
Factual Background
[17] I will provide detailed facts relevant to the issues to be determined within the discussion of the issues. However, some general background facts will help provide overall context and I set them out here.
[18] The parties had a somewhat peripatetic and unstable relationship, complicated by the COVID-19 pandemic. The parties had different versions of where they intended to live at various points in their relationship. Each party had credibility issues, which I will discuss later. I find the following background facts to be true. Given the credibility issues, I relied on contemporaneous documentary evidence, largely in the form of airplane tickets, emails and text messages, where it existed.
[19] Michael is a Canadian citizen who has lived outside of Canada for most of the last 17 years. Raha is Iranian. They met while each was living and working in Malaysia. Soon after they met, Michael got a job in Japan. Raha moved there to be with Michael, and they married in Japan on June 26, 2015. Raha had worked in design and then as a yoga instructor. Michael is a lawyer and was the breadwinner. He is a member of several bars, including Australia, New York, and England and Wales. This allows him to increase his profile for his work in international arbitration.
[20] Michael changed jobs frequently, sometimes requiring the parties to relocate. They lived in Japan until 2016, when they moved to Abu Dhabi. They separated for a period in 2017. In 2018 they reconciled and lived together in Oman until March 2020.
[21] Michael had written the Ontario bar examination unsuccessfully, and planned to write it again in March, 2020. Raha says the parties intended to move to Ontario. Michael says he simply wanted to increase his profile, and it would help him get international Canadian business in the Middle East if he was a member of the Ontario bar.
[22] In March 2020, they travelled to Canada. Michael’s family lives in Essex County, Ontario. The parties planned for Michael to write the bar exam, the parties to visit his family, and to travel to Whistler for a ski vacation. They had purchased return airline tickets, and planned to return to Oman in early April of 2020. The COVID-19 pandemic resulted in the cancellation of the bar exam and a shortened ski holiday, and made a return to Oman impossible.
[23] Michael and Raha moved in with Michael’s parents in Essex County, where they ended up staying until January 2021. Raha became pregnant. In July, 2020 Michael got a new job with a firm located in Qatar. The couple talked about Michael returning to Oman and moving to Qatar in the fall of 2021, but his ability to travel there was uncertain and, at times, impossible. He worked remotely from Ontario, travelling to his sister’s home to work because the internet service was better there than it was at his parents’ home.
[24] He was advised in about December, 2020 that his contract with the law firm in Qatar would be terminated. In December 2020, the parties discussed the possibility, by text message, of Michael going to Oman to get the parties’ cats, and the parties renting an apartment in Windsor, depending on the job situation.
[25] Redacted the parties’ son, M, was born.
[26] On January 5, 2021, Michael signed a contract with a new employer in Oman. Raha expressed some concern to Michael about returning to Oman. Ultimately, they travelled there together, with M, on January 23, 2021. Things did not go well for Michael with the new Omani employer. His last day of work there was March 7, 2021.
[27] On March 22, 2021, Michael signed a fixed-term contract with an Ontario firm, Margie Strub, which will be discussed below. His work for them was to start on April 5, 2021. The parties returned to Toronto.
[28] On May 30, 2021, there was an incident at the parties’ newly-purchased chalet in Quebec. Police were called. Charges, which remain outstanding, were laid against Michael. The parties separated.
[29] Family proceedings, as outlined above, were commenced in Ontario in June 2021. Michael moved to the United Arab Emirates in early July, 2021, where he worked for several months. That job ended in about November 2021. Michael spent some time in Canada and started a new job in Oman in about March of 2022.
Law and Analysis
[30] It is up to the parent who is responding to an allegation of abduction or wrongful retention to satisfy the court that it has jurisdiction on one of four bases argued: ss. 22(1)(a) and 22(2), s. 22(b), s. 23, or parens patriae jurisdiction. If the responding parent does not so satisfy the court, it should decline to exercise jurisdiction with respect to a child (F. v. N., 2022 SCC 51 at para. 59).
[31] Therefore, I must determine whether Raha has satisfied the court of any of the following:
Was M habitually resident in Ontario, as defined in s. 22(1)(a) of the CLRA, at the time the application was commenced?
If not, are the criteria in s. 22(1)(b) of the CLRA satisfied, such that the court may exercise its jurisdiction on the parenting matter?
If not, should the court exercise its jurisdiction under s. 23 of the CLRA on the basis that M would suffer serious harm if he is removed from Ontario?
If not, should the court exercise its parens patriae jurisdiction in respect of M?
[32] If the court may not exercise jurisdiction under the provisions above, I must consider the following: if M has been wrongfully removed to or is being wrongfully retained in Ontario, should the court order that M be returned to Oman under s. 40 of the CLRA?
[33] In considering these issues, it is important to note the purpose of Part III of the CLRA, the Part in which the relevant provisions are found. Section 19 of the Act sets out the objectives which are to discourage child abduction and ensure children’s best interests are paramount in making parenting orders. Their best interests are best protected by ensuring these issues are dealt with in the place in which they habitually reside, barring exceptional circumstances. In the words of the Supreme Court of Canada in F. v. N. at para. 3, “[w]here a child who is wrongfully removed to or retained in Ontario habitually resides in a country that is not a party to the Hague Convention [0F [1]] [which Oman is not], Ontario law provides that, but for exceptional circumstances, courts will refrain from exercising jurisdiction and leave the merits to the foreign jurisdiction with which the child has a closer connection”.
1. Was M habitually resident in Ontario, as defined in s. 22(1)(a) of the CLRA, at the time the application was commenced?
[34] Section 22(1)(a) provides as follows:
22(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order…
[35] Section 22(2) defines habitual residence as follows:
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
If 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.
With a person other than a parent on a permanent basis for a significant period of time.
[36] The parties agree that if M was habitually resident in Ontario at the time of the commencement of the application for the parenting order, this court has jurisdiction over the matter and Michael’s motion should be dismissed.
The Parties’ Positions
[37] Michael states that the parties had no intention to settle in Ontario when they came to Toronto in early April, 2021. He states that they were habitually resident in Oman, but that he had already orally accepted a job in the U.A.E., and that the parties intended to move there with M. Their stay in Ontario was always meant to be temporary.
[38] In support of his position, Michael argues that the British Columbia case of S.R.L. v. K.J.T., 2014 BSCS 597 at paras. 29-30 establishes that ordinary residence is not supplanted by staying somewhere else on a special, occasional or casual basis; it is where a person intends to make a home for an indefinite period that matters. He argues that the parties did not have a settled intention to remain in Ontario and therefore M was not habitually resident here.
[39] Michael also argued that he came to Ontario under duress, only because Raha threatened to take M to Iran if he did not come to Canada, and he was afraid he would not see his son again.
[40] Raha states that the family moved to Ontario in April of 2020, and this is where M last resided with both parents. She argues that settled intention is irrelevant under s. 22(1)(a) of the CLRA, and that M was habitually resident in Ontario under the statutory definition in 22(2).
The relevance of the parties’ “settled intentions”
[41] A significant amount of evidence was led about the parties’ intentions at various times. Raha claims the parties discussed living in Canada many times over the years. Michael disagrees, and states that when they came to Canada in April of 2021, it was on a short-term basis, between his job in Oman and his job in U.A.E.
[42] I do not accept Michael’s submission on the law of “settled intention” set out in paragraph 38 above. I note that s. 74 of the British Columbia Family Law Act SBC 2011c. 25, which formed the basis of the court’s decision in S.R.L. on which Michael relies, does not contain a definition of habitual residence. A mirror provision to that of s. 22(2) of the CLRA does not exist in that statute. I must consider the statutory language of the Ontario legislation that governs this proceeding.
[43] In the recent decision of Bakarat v. Andraos, 2023 ONSC 582, Trimble J. held as follows:
- In determining the child's habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis (see: Ellis v. Wentzell-Ellis, 2010 ONCA 347). Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction (see: Hibbert v. Escano, 2010 ONSC 1445 at para. 21).
66 In Korenic v DePotter, 2022 ONSC 3954, Dubé J. stated at para. 22 that s. 22(1)(a) does not require the court to find a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Habitual residency is deemed under paragraph 1 of s. 22(2) when the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.
[44] I agree with Trimble J. in Bakarat and Dubé J. in Korenic v Depotter, 2022 ONSC 3954 at para. 22 that the legislative language is clear. It does not require the court to find a settled intention.
[45] Nonetheless, a review of some of the evidence of the parties’ travels starting in March 2020 is helpful to the determination of whether they were visiting Ontario in April and May of 2021, as Michael contends, or whether they were residing here, as Raha says was the case. To make this determination, given the parties’ different version of events, I must make credibility findings. I therefore turn to the issue of credibility.
Credibility
[46] Assessing credibility requires the court to consider many factors, and to do its best to explain “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20. Credibility is not an all-or-nothing assessment. The court may accept some, none or all of a witness’ evidence: R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 at paragraph 93. While the assessment of credibility is a “holistic undertaking, incapable of precise formulation” (Dunford v. Hamel, [2018] ONSC 3427 at para. 20), in the 2021 decision of McBennett v. Danis, 2021 ONSC 3610 at para. 41 Chappel J. lists various factors to be considered in undertaking the assessment, which include the following:
a. inconsistencies in the evidence, which may exist between a witness’ evidence and various other things – the evidence of other credible witnesses, the documentary evidence, or the witness’ previous evidence;
b. whether a witness has a motive to deceive;
c. whether the evidence is inherently improbable and implausible? That is it “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?" (Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 DLR 354 at at p. 357)
d. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”.
e. Whether a witness is able to make concessions, or gives self-serving evidence.
[47] Many witnesses were called at trial. I focus here on the credibility of the parties. Their evidence was by far the most central and relevant evidence and I refer in these reasons only to the evidence that was ultimately relevant to the findings I needed to make to determine the issues. Because the matter was decided on the basis of s. 21 of the CLRA, I did not need to consider facts relevant to the assertion that M would be subject to serious harm if he were removed from Ontario. The evidence of alleged abuse was therefore largely irrelevant, as was the expert evidence as to Omani laws and Raha’s status in Oman.
[48] Each party had credibility problems.
[49] Michael consistently downplayed his own behaviour. There were many references in the materials to Raha being upset with Michael’s behaviour, particularly when he had been drinking. On many of these occasions, Michael sent text messages apologising for his behaviour, saying he did not know what had come over him, that he had “screwed up”, behaved badly, and promising to take anger management and alcohol counselling. When confronted with these messages he had sent, however, he stated that he was trying to appease Raha, that he was worried for her, and that she would have a big blow-up and never take responsibility for it. He made similar statements about the altercation in Quebec in May 2021 that led to their separation, stating that she assaulted him but he did not tell the police of this because he was trying to protect her. He acknowledged no instances when he might have behaved badly. I do not find this blanket denial credible, both as a matter of common sense, and given the messages that went back and forth between the couple on numerous occasions, referred to in part above.
[50] He was also unable to make any concessions in other respects. For example, he testified glowingly about M, stating that he was thriving and is a “happy boy” with a very good vocabulary. However, when asked if he wished to say anything about Raha as a mother, he stated that she “is doing a terrible job”.
[51] Michael also demonstrated a willingness to make statements that were advantageous to him in the moment, whether or not he believed them to be true. In order for him to sponsor Raha for permanent residency status, he advised the government that he intended to move to Toronto and live here, yet denied this was ever his intention in his testimony. He obtained an OHIP card while living here, stating that he did not need to show evidence of residency because of COVID exceptions. He obtained favourable terms for a Canadian mortgage by stating he was working in Canada, and quit his Canadian job the day the property transaction closed. He stated that he never planned to work in Canada, yet there were several times over the years when he applied widely to firms here.
[52] While Michael was likely to minimize his own conduct and overstate Raha’s negative behaviour, I find that generally, Raha was somewhat prone to exaggeration. An example of this was each party’s evidence about an incident that occurred in the Maldives, where they travelled with Michael’s father, Paul, on vacation. When Michael was asked whether he recalled an incident in the Maldives on this vacation, he stated that “we argued, she was very drunk and threw something in my face. My father provided an affidavit in the criminal trial, talking about Raha making all of this up.” Raha testified that, among other things, Michael had thrown a metal key at her face. Paul’s evidence, which I accept on this point, was that the couple had argued, Raha had asked for the key to the room, and Michael tossed it to her. The key hit her in the chest or stomach and fell to the ground. This is one of several examples where each party over- or under-stated evidence to make their own behaviour look better and the other party’s look worse. However, it is also one of many examples where Raha’s evidence is more closely aligned with other evidence than is Michael’s. The more objective evidence (Paul) supports that Michael tossed a key that hit Raha; there is no support for Raha being very drunk or throwing anything at Michael.
[53] Raha’s evidence was inconsistent with external evidence in many respects. She denied seeing a physician to discuss becoming pregnant in March 2020. However, her messages to Michael after the appointment clearly indicate that she planned to start following advice she had received about taking various vitamins beneficial to pregnancy. She gave inconsistent answers about why she refused to answer questions about the criminal assault allegations at questioning, first stating that she was advised not to answer those by the Crown attorney, then acknowledging that was not the case. She gave inconsistent and contradictory evidence about how she obtained the address of the chalet in Quebec in order to provide it to police. She was, however, more willing to make concessions than Michael. For example, she acknowledged insulting him and calling him names, and also acknowledged that he is a fun and loving uncle to his sister’s children, and that she hopes and assumes M loves him, although she cannot say for certain as she does not see them together.
[54] Given my concerns about the exaggeration of each party’s evidence, I have relied on external evidence. I find, however, that Raha’s evidence on the critical issues of the parties’ residency in April and May of 2021 is to be preferred. It is more aligned with the documentary evidence and makes more narrative sense than does Michael’s.
[55] With those credibility findings in mind, I turn to the evidence of the party’s residence at various times.
March 2020 trip to Canada
[56] When the parties left Oman in 2020, Michael’s evidence was that they intended to come to Toronto for a three-week trip. Raha suggested that she and Michael intended to stay in Canada when they came in March, 2020 (although also agreed that they were here for “a trip”). While there is evidence that Michael was unhappy at work at that time and did apply for jobs in Canada, the preponderance of evidence does not support that they were coming here to stay when they arrived in March, 2020. They packed for a ski trip and a visit, kept their apartment and cats in Oman, bought return tickets to Oman, and did not seek their own housing in Ontario. Michael was working for an Omani firm. Their usual practice was to come to Canada to ski and visit Michael’s family. Michael planned to write the bar exam. While the parties discussed the cost of living in Canada in February, 2020, the evidence supports that they did not plan to move here immediately on that trip. Michael’s earlier emails indicate that he knew it would be difficult to find a job in Ontario before he passed the Ontario bar. I accept Michael’s evidence on this issue. I find it to be more aligned with the documentary evidence and the external facts outlined above. But for the pandemic, the parties would have returned to Oman in April of 2020.
[57] However, the pandemic interfered with that planned return. Raha became pregnant. Michael changed jobs in the summer of 2020 to a firm in Qatar. He worked for that firm remotely from Essex, Ontario, where the parties were staying with his parents. During this time, he wrote and passed the Ontario bar exam.
January 2021 return to Oman
[58] By December 2020 Michael had been advised that his contract with the Qatari firm would be ending. At that time, I find that the parties considered staying in Canada. The following texts were exchanged:
Michael: I think it's a good idea to get them [the parties’ cats, who were in Oman]. I didn't message basil I want to sleep on it. I think next month I'll get them and bring them here [if] there's no job and we rent an apartment somewhere in Windsor
Raha: Ok
Michael: I don't know what to do but it'll all work out eventually
[59] However, Michael found a new job in Oman and signed a contract with the new employer on January 5, 2021. That evening, Raha texted her sister: “We are now going to Muscat.”
[60] On January 8, 2021, Michael requested that the granting of M’s passport be expedited, as the parties were “planning to move permanently to Oman.”
[61] Raha certainly was worried about going. A day or two prior to their departure, she emailed her sister as follows: “I'm gonna have another talk with Michael. If he messages you, please don't reply. The same day, she texted Michael: “We are not going with you to Oman. I was planning to tell you after Katie's birthday but doesn't seems (sic) like there's any good time.”
[62] Michael responded: “You and I have planned for a long time about going back, I know we have not been getting along lately but you need to rethink your decision not to go back to Oman.” Raha texted: “But the problem is not just you being unhelpful and causing problems, the problem is how sudden and extreme your anger is. That makes me worried for [M]. Specially if we live in Oman. So no I'm not going to Oman if this is how you are behaving. There is no other way around this.” Michael responded: “I'll change then I'm sorry. You have nothing to worry about. There is no reason at all to worry. I am actually sorry. Everything. Will be fine and great don’t worry.”
[63] They flew to Oman with M and Raha’s mother on January 23, 2021. Raha testified that they were not returning to Oman to stay. While Raha clearly found it difficult to undertake the move to Oman, I reject her evidence that the parties did not intend to stay there when they arrived in January. They purchased one-way airplane tickets, took a significant amount of baggage, Michael was starting a new job, and they made plans to return to their apartment. I accept Michael’s evidence on this issue and find that the parties were going to Oman for Michael to work and the parties to live in late January of 2021.
January to March in Oman
[64] However, things started to unravel soon after their arrival in Oman. Michael testified that he thought Raha could rent a yoga studio at the Crowne Plaza hotel in Muscat and teach yoga. Raha did not view this as a serious opportunity. Her son was less than three months old, and she was not interested in becoming a self-employed instructor at that time. Michael’s new employer wanted him to sign a contract that contained a non-compete clause to which he objected. Raha and M had some difficulties adjusting. What is clear from a review of the messages between the parties was that Raha was tiring of the parties’ habit of constantly moving, which she found very hard with an infant. In early March, when discussing Michael’s opposition to the non-compete clause, the following exchange occurred:
Raha texted Michael: We have discussed it ... we are all here for this job and if you have to sign a contract that only allow you to work with them in oman, that is okay. Meanwhile go for interviews for abu dhabi and dubai
On March 7 he texted Raha: I think I won’t sign it and I’d rather be in Canada
[65] Indeed, March 7 was his last day of work with the Omani firm, although he later succeeded in a wrongful dismissal claim against it.
April 2021 return to Ontario
[66] In early March, Michael reached out to Margie Strub, a Toronto firm with whom he had had earlier discussions about work. He also made overtures to firms in the Middle East and gained some traction with one of them. He advised that firm that he would like to stay in the Middle East, but as of March 16, 2021, the employer indicated it was not looking good.
[67] Michael signed a fixed-term contract with Margie Strub on March 22, 2021. Michael and Raha disagree about how long the Margie Strub contract would last. The contract itself indicated that it would terminate on August 31, 2022 unless otherwise terminated in accordance with other contractual provisions. The contract also contemplated the possibility of extending the relationship between the parties, but the contract itself was not subject to extension. Michael was to provide legal services to clients of the firm generally and seek to bring additional clients to the firm, but the contract was entered into for the purpose of representing a specific client in a particular arbitration. Michael's position was that as soon as that arbitration was completed, the contract would terminate. Raha’s position was that he would be able to continue to work for that firm for at least the duration of the contract.
[68] The parties made plans to return to Ontario. Michael had previously purchased two pre-construction condominiums in Toronto. One was located at 57 Brock Ave. He testified that he had purchased these as investments. On March 17, 2021 Michael sent emails seeking help finding an apartment to rent in Toronto, indicating “we are going to be returning to Toronto in the beginning of April”, and noting that short-term contracts “could work out well with the timeline for 57 Brock”. On his rental application he explained that his reason for leaving his prior residence was because of a “return to Canada”. The parties planned to arrive in Toronto on March 28, but their flights appear to have been changed or cancelled by the airline.
[69] Michael continued to look for jobs after he had signed the contract with Margie Strub. He testified that he received an oral offer to join a Dubai firm, Hadef, on April 1, 2021, days before leaving Oman for Toronto. In his affidavit sworn June 21, 2021 in the OCJ proceeding, he swore he accepted it on April 25, 2021. In his evidence, he indicated this was incorrect, that he accepted the offer before leaving Oman for Toronto, but signed the offer in late April. On April 5, 2021 he asked Raha if she could return furniture she had ordered for their Toronto apartment. She wondered if he wanted to buy furniture from elsewhere, but he texted that he wanted it returned because, he said, “I want to go to Dubai”. He received a written contract from the firm in Dubai on April 25, 2021 when he was already in Canada. He signed and returned it two days later. His work there was to commence June 1st, 2021.
[70] Michael claims that he only came to Canada in early April, 2021, because Raha threatened that if he did not do so, she would take M to Iran and Michael would never see him again. I do not accept that evidence for the following reasons:
a) in text messages in February, 2021, Michael suggested Raha take M to Iran or Canada. On February 13, 2021 he wrote:
I am not happy at all with you and you don’t seem to care and make everything about taking care of [M]. I think it’s best if you got to Iran this week for a while and think about things, tell me what day your flight is booked for.
… If your (sic) going to get him an Iranian passport you have his birth certificate so you have everything you need.
You can take his Canadian passport or get him a visa or you can go somewhere else with him it’s up to you. I have given you so many chances I have had enough I just want you to leave. Just start now with the visa so you can leave this week.
… You can take him with a Canadian passport so just leave. I don’t want you here., Please just go and leave me [alone].
… Go to Canada. Just leave.
b) On February 21, 2021 the following exchange occurred:
Michael wrote: Maybe we need some time apart.
Raha replied: I am not going to relocate a 2 month old every time you find a job or get fired or have melt down or have a problem with every little thing. You want to be on your own, go wherever you want.
Michael replied: Maybe you should visit Iran for a bit.
c) In text messages at this time, the parties engaged in discussions about whether M would go to Iran on his Canadian passport or whether he should obtain an Iranian passport. Raha advised that she could not obtain an Iranian passport for M unless she and Michael had a marriage that was considered a valid marriage in Iran. Their current marriage was not. They therefore obtained a religious marriage on February 20, 2021.
[71] I find that Michael was not afraid of Raha taking M to Iran. He encouraged it on several occasions. He participated in obtaining a religious marriage for the sole purpose of M obtaining an Iranian passport, which would be unnecessary if he were never going to visit Iran.
April to May in Ontario
[72] On April 4, 2021, the parties traveled on one-way tickets from Oman to Toronto.
[73] They were on vacation in Quebec at the end of May when an altercation occurred. Michael claimed that Raha and her family colluded to have the parties move to Ontario and have him charged with assault. At one point, he suggested that she only became involved with him romantically in the first place because he was Canadian. He relied heavily on the following text message from her to her family members sent in January 2021:
1/25/21, 22:22 - But honestly I just don't see a reason to have a man in a house when you have kids. Their only use, sperm, family expenses and family photo ... and that's pretty much it.
[74] The text message certainly speaks of Raha’s unhappiness, which was no secret to Michael. But, had Raha conspired to remain in Ontario, she could simply have returned in February when Michael was encouraging her to do so.
[75] I reject Michael’s suggestions that Raha only became involved with him because he was Canadian, and that she colluded with her family to move to Ontario and have him charged with assault, and make the following findings.
[76] Michael’s employment changed often. These changes regularly required them to move. Once M was born, this lifestyle became more arduous for Raha. Their relationship, always volatile, became even more strained. Michael would generally prefer to live in the Middle East if he had work there, in any one of a number of countries. After moving their one-month-old child to Oman and experiencing difficulties in the transition, and feeling that it was very difficult for M, Raha did not wish to continue their peripatetic life. She was willing to stay in Oman and suggested Michael sign his employer’s contract. Had they stayed in Oman she may well have been willing to make the short move from there to Dubai. However, when Michael chose not to sign the contract with the Omani firm in March, 2021 and stated that he would rather be in Canada, the couple decided to move to Canada. Michael voluntarily reached out to a Toronto firm about employment. The parties made arrangements to move here. They flew to Toronto on one-way tickets. They rented an apartment and considered moving in to Michael’s previously purchased condominium depending on the timing of the rental and the competion of the condominium construction. They purchased furniture. They quarantined in their apartment. They considered moving their cats here. Michael got an OHIP card. The potential duration of Michael’s employment with Margie Strub is not at all clear from the contract. There was no reason for it to end on the day Michael quit. They lived together as a family at the apartment they rented on Eglinton Ave. in Toronto. Although Michael preferred living in the Middle East, he understood that as the family’s breadwinner, he had to go where the work was. Canada had been a back-up plan for him as recently as December, 2020. He had applied for jobs in Canada in 2017 and again in 2020. He freely applied to a job in Canada once he decided he did not want to sign the Omani contract with the non-compete clause, saying he would “rather be in Canada” than sign the contract with the clause he found objectionable. The fact that Michael wished to return to the Middle East to work in Dubai does not change these facts.
[77] I therefore find that the parties and M lived together in Ontario commencing in early April, 2021. M last resided in Ontario with both parents. M was therefore habitually resident in Ontario under s. 21(1)(a) of the CLRA as of the date this application was commenced.
2. If I am incorrect in finding that M was habitually resident in Ontario in June 2021, are the criteria in s. 22(1)(b) of the CLRA satisfied, such that the court may exercise its jurisdiction on the parenting matter?
[78] In the alternative, I find that the criteria in s. 22(1)(b) of the CLRA are satisfied, such that the court may exercise its jurisdiction on the parenting matter on this basis. That provision states:
22(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
[79] It is common ground between the parties that all six criteria must be met under s. 22(1)(b) in order to ground an Ontario court’s jurisdiction.
[80] Two of the criteria are not contentious. M was physically present in Ontario at the commencement of the application (s. 22(1)(b)(i)). There is no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child that has been recognized by a court in Ontario (S. 22(1)(b)(iv)). I will consider the remaining factors in order.
S. 22(1)(b)(ii) Substantial evidence concerning M’s best interest
[81] This factor requires there to be substantial, not just some, evidence available: Nordin v. Nordin, 2001 CarswellOnt 490 (SCJ) at para. 8. This factor is not a “zero-sum” criterion. There can be substantial evidence concerning a child’s best interest in more than one jurisdiction (Murray v. Ceruti, 2014 ONCA 679, 2014 CarswellOnt 13728 (Ont. C.A.) at paras. 25-26). M was under six months old when this application was commenced. He was five months old when the parties separated. He had spent slightly more than half of his life in Ontario. He has extended family here, and saw physicians here. I am satisfied that there is as substantial evidence as could be expected to exist for an infant of that age available in Ontario.
(iii) No application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident
[82] Michael commenced a court application in Oman on June 17, 2021, within a day of Raha initiating these proceedings. However, he had first started an application here, and, on his version of events, agreed to withdraw it because Raha planned to proceed in the Superior Court. This was after the endorsement of Weagant J. had suggested that Ontario had jurisdiction in the matter. Raha commenced these proceedings the same day that Michael withdrew his OCJ proceedings. She was later notified that he had started proceedings in Oman. Those proceedings, it appears, are no longer pending and have awarded primary custody to Raha. Thus, for reasons of both timing of the commencement of proceedings and the current status of the Omani proceedings, this criterion is met. (Obregon v. Obregon, 1984 CarswellOnt 229 (Ont. U.F.C.) para. 14)
S. 22(1)(b)(v) Real and substantial connection
[83] Michael argues that the presumptive connecting factor in cases under this provision is the “real home” or “ordinary residence” (Wang v. Liu, 2013 ONCA 33, paras. 46-47; N v. F, 2020 ONSC 7789 para. 357). The test of whether the child has a real and substantial connection to a jurisdiction is not a comparative test (Hibbert v. Escano, 2010 ONSC 1445 para. 70), and again, unilateral steps taken by a removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight to support a jurisdiction claim (Hibbert at para. 21).
[84] Michael argues that neither Raha nor M has a real and substantial connection with Ontario. Raha had never been here until she was in her thirties. She is working part-time at a minimum-wage job. Some of her family members are here; others are not. Raha relies on the fact that M was born here, the existence of extended family, and post-separation facts to support her contention that M has a real and substantial connection here.
[85] M, at the time of separation, was only five months old. His paternal grandparents, as well as paternal aunt and uncle, and great-aunt and uncle, are here. Maternal relatives also reside here. His father is Canadian, his mother is a permanent resident. At the time of separation, he was physically present here and had spent just over half his young life here. Although it is not a comparative test, it is worth noting that at the time the proceedings were commenced, M’s father was not returning to Oman, but moving to Dubai. Post-separation, his father spent several months at his new job in Dubai. When that job ended, he returned to Ontario to, he says, spend time with M. He moved to Oman for a new job in March 2022 and has lived there since. M has no extended family there. The paternal grandparents have indicated a willingness to spend significant periods of time in Oman to assist Michael with M’s care, should the court decision be that Ontario does not have jurisdiction and that M is being wrongfully retained here. Michael argues that he has substantial connections to the Middle East. He has made his life in the region for many years. He argues that a parent’s unhappiness plays no role in determining jurisdiction (Ellis v. Wentzell-Ellis, 2010 ONCA 347 at para. 34). I agree. Michael was clearly unhappy living here and wanted to live in the Middle East. That did not, in my view, change M’s real and substantial connection to Ontario. I have above set out the facts supporting my conclusion that M’s “real home” or “ordinary residence” was in Ontario. Given the amount of time M spent in Ontario, the location of his extended family, the status of each of his parents and their ability to live here permanently 1F [2], I find that M has a real and substantial connection to Ontario.
S. 22(1)(b)(vi) On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario
[86] In Solem v. Solem, 2013 ONSC 1097 (Ont. S.C.J.), at para. 64, the court stated that: "[w]here the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction." That is not the case here. The father is the only witness in Oman. As courts have noted, in the post-pandemic age, courts have become adept at accommodating virtual witnesses, as this motion itself demonstrated.
[87] I find that all six criteria in s. 22(1)(b) are met. Therefore, in the alternative to s. 22(1)(a) of the CLRA, the Ontario court would also have jurisdiction under s. 22(1)(b). The parties are agreed that if jurisdiction is established under either of these grounds, the Ontario court exercises jurisdiction and Michael’s motion for relief under s. 40 of the CLRA fails. I therefore need not consider whether M would suffer serious harm if he is removed from Ontario under s. 23 of the CLRA or whether the court should exercise its parens patriae jurisdiction in this case.
[88] I note that section 25 of the CLRA allows a court to decline to exercise jurisdiction if it is of the opinion that another jurisdiction is more appropriate. Michael did not ask the court to decline jurisdiction if it found jurisdiction under any of the provisions above. In any event, I do not find another jurisdiction to be more appropriate than Ontario.
[89] Michael’s motion for a declaration under s. 40 of the CLRA that M has been wrongfully removed to and is being wrongfully retained in Ontario by Raha, a declaration that this court has no jurisdiction to determine the parenting issues under s. 22 or s. 23 of the CLRA, and an order transferring M into his care and returning him to Oman is dismissed. Raha’s cross-motion for an order that this court has the jurisdiction to determine parenting time and decision-making is granted.
[90] The parties are encouraged to agree upon costs. If they are unable to agree, Raha may make costs submissions of no more than 7 double-spaced pages plus any offers to settle and a bill of costs by May 15, 2023. Michael may respond with the page same limits by May 29, 2023. There shall be no reply submissions without leave. Submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
L. Brownstone J. Date: May 1, 2023
[1] Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35.
[2] Expert evidence was called on Raha’s ability to live permanently in Oman. Because I have decided the case on the basis of s. 21 of the CLRA, I did not need to consider that evidence. By stating that both parents have the ability to live permanently in Canada, I am not undertaking a comparison or drawing any conclusion on that issue with respect to the parties’ situation in Oman.
