Court File No.: FC1068/22 Date: October 19, 2023 Corrected: December 13, 2023
Superior Court of Justice – Ontario Family Court
Re: Lubna Aldahleh, Applicant AND: Zakaria Abdelrahman Mohammad Zayed, Respondent
Before: SAH J.
Appearances: Abeer Abosharia and Bayly Guslits, for the Respondent Rasim (Sam) Misheal, for the Office of the Children’s Lawyer Lubna Aldahleh, in person Nadia Ghobrial, Arabic Interpreter (on October 17, 2023) Meral Hussein, Arabic Interpreter (both days)
Heard: October 17, 2023
Corrected Decision: The text of the original decision was corrected on December 13, 2023 and the description of the correction is appended [i].
Background
[1] This matter pertains to three children currently ages 12, 10, and 5. When the application was issued in October 2022, the matter was not flagged as an international child abduction case under Rule 37.2 of the Family Law Rules.
[2] On the first return date in January 2022, the parties, then both represented by counsel, adjourned the matter on consent to a date in May, to be spoken to.
[3] In late March 2023, the matter was before the Court on the respondent’s urgent motion. The applicant requested time to respond, and the parties set a special appointment/long motion date. The parties also agreed to some orders on an interim without prejudice basis. The matter was set for a four-hour special appointment/long motion on May 26, 2023.
[4] On May 26, 2023, Tobin J. identified this case as an international child abduction case under r. 37.2 of the Family Law Rules, O Reg 114/99. Tobin J. then case managed the file, made several procedural orders, and a five-day trial was scheduled to commence on July 31, 2023.
[5] On the first day of trial in July, counsel requested an adjournment to explore counselling for the children and deal with document disclosure. All counsel consented to the adjournment, including then counsel for the applicant. Applicant’s counsel and the Office of the Children’s Lawyer (OCL) had not yet filed their expert report. The adjournment was subject to terms. The trial did not proceed, and the matter was adjourned to August 11, 2023.
[6] When the matter returned to court on August 11, 2023, the applicant was self represented. The Court was provided with an update on various issues, including counselling for the children, disclosure, and expert evidence. The matter was adjourned to September 5, 2023, for a further update.
[7] On September 5, 2023, the applicant requested more time than the Court offered, to prepare for trial focussing on the best interest of the children. The Court reminded the applicant of the issues to be determined at the trial, which was limited to determining which jurisdiction (Ontario or Kuwait) would decide what is in the children’s best interest. The Court set the trial to start on November 13, 2023 at 10:00 a.m., in hybrid mode, allowing all parties and witnesses residing outside of Ontario to attend virtually.
[8] Before me is the applicant’s motion requesting, in part, an adjournment setting the five-day trial to take place in three weeks.
[9] The respondent opposes the adjournment.
[10] The OCL does not oppose the adjournment request, submitting that a delay would not prejudice the children. The OCL advises that the mother has been the children’s primary caregiver since birth and the proposed adjournment would not alter the status quo. Further, the OCL submits that the children's views and preferences remain the same, in that they wish to stay with the applicant and not be returned to Kuwait.
Legal Principles Considered
[11] Rule 37.2 of the Family Law Rules applies to international child abduction cases. This rule came into force in October 2022.
[12] Rule 37.2(2) states:
For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.
[13] Subrule 2(2) - 2(4) of the Family Law Rules addresses the primary objectives of the Rules, lists ways to deal with cases justly, and sets out the Court’s duty to promote the primary objectives.
[14] Rule 37.2(3) requires international child abduction cases to be disposed of promptly, and if Article 11 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”) applies, no later than six weeks after the case is commenced.
[15] The Court noted in O.M. v. S.K., 2020 ONSC 3611, at paras. 12-13:
The granting or refusing of an adjournment is a discretionary act. As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc. at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors. These factors include:
- the overall objective of a determination of the matter on its substantive merits;
- the principles of natural justice;
- the need for justice not only to be done but appear to be done;
- the circumstances of the request for an adjournment and the reasons and justification for the request;
- the practical consequences of an adjournment on both substantive and procedural justice;
- the competing interests of the parties in advancing or delaying the progress of the litigation;
- any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
- whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
- the need of the administration of justice to process proceedings in an orderly fashion; and
- the need of the administration of justice to effectively enforce court orders.
[16] When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.
[17] In Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, (2009) 96 O.R. (3d) 138, at para. 37, the Court of Appeal for Ontario provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:
A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
[18] In a case involving the Hague Convention, Leigh v. Rubio, 2022 ONCA 582, the Court of Appeal addressed the requirement to act expeditiously in the conduct of an application and hearing, stating at para. 20:
Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues.
Analysis
[19] The applicant seeks an adjournment based on three main grounds. She claims: 1) the November trial date conflicts with her educational obligations; 2) she was not able to file evidence following the termination of her lawyer’s representation; and 3) not all steps required of a court proceeding have taken place following the respondent’s filing of an urgent motion in March. I will address these grounds in turn.
[20] The applicant submits that she is a full-time university student in a program offered by the Government of Canada. She claims it is a one-time opportunity and that if she misses three courses, she will be rejected from the program. She claims to have a heavy course load and that she cannot deal with the trial and her university courses at the same time.
[21] When probed, the applicant confirmed that she obtained approval to attend the university program at the end of August 2023. This means that when the matter was before the Court on September 5, 2023, the day the trial date was set, she was aware of her educational commitments. She did not raise this reason or justification in September.
[22] A review of the September 5, 2023 endorsement reveals that the applicant requested more time to “respond to the falsehoods contained in the respondent’s material”. At that time, the record reveals, the Court explained to the parties “that the issue before the Court is not what is in the best interest of the children. Rather, the issue before the Court will be which jurisdiction will decide what is in the children's best interests: Ontario or Kuwait.”
[23] Despite the applicant’s request for more time, the trial was directed to start November 13, 2023, at 10:00 a.m. Tobin J. had the matter returned before him on October 3, 2023, continuing his case management duties, seeking an update on trial readiness and expecting a draft trial scheduling endorsement form to be filed.
[24] Other than advising that she studies architecture at the University of Toronto and that her courses will be completed in December 2023, the applicant did not provide any details of the time commitment required, the schedule, the days she is required to attend class, or any documentary evidence in support of her claim that she will be rejected from the course if she misses three classes/course. Further, the applicant did not produce any documentation or evidence to support that an accommodation of her program cannot be provided by the university to allow her to participate in the trial.
[25] Lastly, there is no evidence to suggest that the program is a one-time only opportunity, as claimed.
[26] Attending to educational pursuits in the face of court proceedings can be a difficult balancing act; however, the administration of justice requires the court proceeding to move forward without delay and will take priority.
[27] This ground, in isolation or in combination with the other grounds addressed below, is insufficient to grant an adjournment of the trial in face of the Rules, which mandate a prompt disposition of this matter.
[28] The second ground raised by the applicant centers around her inability to file evidence she feels is relevant to the issues for determination at trial.
[29] Her submissions and the evidence filed did not focus on what evidence she has, why she cannot file it for trial, whether it is relevant to the issues for trial, and whether the evidence can still be produced. It is therefore impossible to determine what, if any, prejudice exists.
[30] The issues of evidence, exhibits, filings and documents can be addressed at the trial management conference that has not yet occurred.
[31] The applicant continued to make additional submissions, most of which were disconnected and hard to follow. She claimed there is a high risk that the children will be returned to Kuwait, and that she came to Canada for humanitarian reasons. These submissions were not tied into her request for an adjournment.
[32] She also claimed that she requires time to read the OCL expert report which is in excess of 600 pages. A review of the court record reveals that the expert report was dated late July 2023. In the August 11, 2023 endorsement, the Court acknowledges receipt of the OCL expert report. This leads me to the conclusion that the applicant has had notice of, or was in fact in possession of, the OCL expert report by middle of August, some two months ago.
[33] If the applicant is suggesting that she had insufficient time to prepare for trial, I find to the contrary. The applicant has had two months to review the document and to address this report; moreover, there are an additional three weeks before the trial is scheduled to commence.
[34] I do not find the applicant’s ability to adjudicate her case has been compromised. There is still time and opportunity to address her request to file more evidence, to the extent that it is relevant to the trial issues.
[35] This ground is insufficient, in isolation or in combination with the other grounds as discussed below, to grant an adjournment.
[36] Finally, the applicant submits that not all required procedural steps occurred following the respondent’s urgent motion brought in March 2023. The applicant did not elaborate on how this issue tied into her request for an adjournment.
[37] The applicant did not provide any evidence in support of what steps ought to have been carried out, and how the Court’s failure to proceed with those steps have prejudiced her case and warrant an adjournment of the trial.
[38] This ground is insufficient to grant an adjournment.
[39] This case has already been subjected to considerable delay. This application commenced almost one year ago. The first delay was owing to the parties’ and counsel’s failure to identify this matter as an international child protection case.
[40] Six months after the application was issued, this matter was flagged as an international child abduction case. With active case management, a trial date was set to take place less than two months after identification. When that trial date could not proceed, a new date was set.
[41] While the Hague Convention does not apply to the case before me as it did in Leigh v. Rubio, it is still considered an international child abduction case and the principle of swift justice applies.
[42] Whether or not the Hague Convention applies, the expeditious adjudication of these matters is required to avoid any of the consequences or potential for damage as set out by the Court of Appeal at para. 20 in Leigh.
[43] Rule 3(6)(c.1) specifically prohibits changing the times set out in rule 37.2, even if on consent in writing. This reinforces the requirement for the timely and efficient disposition of these cases. The parties require a decision and they have had time, and continue to have time, to prepare to adjudicate their case.
[44] It may well be that the applicant is overwhelmed with the process; she also may be orchestrating a delay. She proposed to adjourn the trial to January or February 2024. If accepted, the trial would occur 15-16 months after the application was commenced. This would not be considered expeditious.
[45] This matter needs to be disposed of promptly. I am not satisfied that there is any potential prejudice to the applicant if the trial proceeds. On the evidence before me, I am not satisfied that additional documentary evidence or filings are required for the Court to decide the issue of jurisdiction.
Disposition
[46] The applicant’s notice of motion sets out ten heads of relief. During the motion, I advised that paragraphs 1, 2, and 4 would be addressed. These paragraphs deal with the request for the adjournment of the trial.
[47] In accordance with the requested relief at para. 4, I have considered the applicant’s Motion Form 14B on this motion only as it relates to the adjournment request. All other issues may be addressed at the trial management conference.
[48] For reasons outlined above, paras. 1 and 2 of the applicant’s notice of motion shall be dismissed.
[49] The trial shall proceed, as scheduled, to commence November 14, 2023, at 10:00 a.m. [1]
[50] Paras 5, 7, 8, 9, and 10 of the notice of motion are statements and do not require orders.
[51] Para. 3 of the notice of motion requests that the Court identify issues to be decided pursuant to r. 1(7.2)(n) of the Family Law Rules. This is not required to be ordered and will be addressed at the trial management conference when the parties discuss and review issues for trial.
[52] Para. 6 pertains to the Court’s authority, under r. 1(8.2), to strike out all or part of any document that delays and makes it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of process. No evidence was led in support of this requested relief. If the applicant wishes to pursue this claim, she should advise the Court at the trial management conference. Para. 6 of the applicant’s notice of motion shall be dismissed without prejudice to the applicant’s right to revive her request on or before the trial management conference.
[53] Trial management conference is adjourned to October 24, 2023, at 10:00 a.m. Two Arabic interpreters are required on the return date.
[54] The applicant shall serve and file a fresh trial scheduling endorsement form, filling out her/applicant’s portion only, on or before October 23, 2023 at 10:00 a.m. This document is to be filed by emailing it to: london.courthouse@ontario.ca. The subject line of the email should be marked urgent/time sensitive.
[55] The respondent seeks costs in the amount of $750. He has two counsels representing him, one of whom has an hourly rate of $375. The applicant is on Ontario Works. She requests that costs be waived. The respondent is the more successful party and there is a presumption of costs in his favour. Having considered the modern costs rules set out in Mattina v. Mattina, 2018 ONCA 867, and proportionality and reasonableness, a cost award of $200 is appropriate in this case. The applicant will be provided time to pay.
[56] The applicant shall pay to the respondent his costs of this motion, fixed in the amount of $200, inclusive of HST and disbursements, payable within 60 days.
“Justice K. Sah” The Honourable Madam Justice K. Sah
Released: October 19, 2023
[1] Though directed by Tobin J. to start November 13, 2023, the courts are closed on November 13, 2023 in observance of Remembrance Day.
[i] CORRECTION NOTICE
- page 1, case citation – the period following the parties’ names was removed so that it now reads “Aldahleh v. Zayed, 2023 ONSC 5920”
- page 1, title of proceedings – the parties’ names were changed from “Lubna Yousef Abdel Rahmen Aldahleh, Applicant AND: Zakaria Mohannad Zayed Zayed, Respondent” to “Lubna Aldahleh, Applicant AND: Zakaria Abdelrahman Mohammad Zayed, Respondent”
- page 1, counsel’s name – “Bayley Guslits” was corrected to read “Bayly Guslits”