CITATION: Isakhani v. Al-Saggaf, 2007 ONCA 539
DATE: 20070726
DOCKET: C46548
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O. MOLDAVER and ROULEAU JJ.A.
BETWEEN:
HALEH ISAKHANI
Applicant (Respondent in Appeal)
and
ABUBAKR AL-SAGGAF
Respondent (Appellant in Appeal)
Daniel S. Melamed for the appellant
Sheilagh O’Connell for the respondent
Heard: July 3, 2007
On appeal from the order of Justice Susan Greer of the Superior Court of Justice dated December 21, 2006, dismissing the appeal from the order of Justice James P. Nevins of the Ontario Court of Justice dated March 27, 2006.
MOLDAVER J.A.:
[1] The appellant husband is originally from Yemen and the respondent wife is from Iran. In May 2000, they met in Dubai, where the husband was working, and they began living together in February 2001. At that time, the wife was in the process of obtaining immigration status in Canada.
[2] In October 2001, the wife became pregnant and she and her husband agreed that she would give birth to the child in Canada. Before giving birth, the parties married in Dubai.
[3] The child was born in Toronto on July 17, 2002. Shortly thereafter, the couple returned to Dubai with their new son and resided there, as a family, until March 2005, when the wife separated from the husband.
[4] On April 17, 2005, the wife left Dubai and came to Canada with the child. According to the wife, she did so because her husband was an alcoholic who abused her both physically and mentally and she was concerned for her safety and the safety of the child. The husband, on the other hand, maintained that the wife abducted the child and came to Canada solely because she wanted to live here.
[5] After arriving in Canada, the wife sought and obtained an ex-parte order on April 29, 2005 granting her temporary custody of the child. The husband learned of that order and five months later, he moved to set it aside and have the child returned to Dubai.
[6] On March 27, 2006, the motion judge, Nevins J. of the Ontario Court of Justice, set aside the ex-parte order on the basis that it had been obtained by means of false information, namely, an affidavit filed by the wife in which she stated that the child was habitually resident in Canada. Nonetheless, after a full hearing that lasted several days and included a mass of affidavit evidence, he accepted jurisdiction over the child to determine matters of custody and access under s. 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (CLRA). He did so after finding that the child would be at serious risk of harm if he returned to Dubai.
[7] Section 23 of the CLRA provides:
Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally entitled to custody of the child,
(ii) the child is returned to the custody of the person legally entitled to custody of the child, or
(iii) the child is removed from Ontario.
[8] The husband appealed from that order and his appeal was dismissed by Greer J. on December 21, 2006. He now appeals to this court.
ISSUES
[9] The husband raises the following two issues on appeal:
(1) Did the motion judge err in fact and law in concluding that the husband had physically assaulted and mentally abused his wife in the child’s presence and that overall, the situation was violent and put the child in an intolerable position; and
(2) Did the motion judge err in fact and law in concluding that there was a reasonable likelihood that the violence and abuse to which the wife had been exposed would continue if she and child returned to Dubai, and that she and the child would not be adequately protected from it.
[10] The husband submits that both of the alleged errors are significant and that if we find merit in either one, we should set aside Nevins J.’s order, declare that Ontario does not have jurisdiction to determine matters of custody and access relating to the child, and order that the child be returned to Dubai forthwith. Alternatively, he submits that we should remit the matter to the Ontario Court of Justice for the “trial of an issue” under s. 23 of the CLRA.
[11] For reasons that follow, I would not give effect to either ground of appeal. Accordingly, I would dismiss the appeal.
Issue One: Physical and mental abuse of the wife
[12] Greer J. considered the motion judge’s careful review and analysis of the evidence on this issue and concluded that he correctly interpreted and applied the appropriate legal test and standard of proof under s. 23. I agree with her analysis and conclusion and would simply add the following observations.
[13] The motion judge gave detailed and comprehensive reasons for concluding that there was “a significant degree of violence, physical and verbal, oral and written, directed by the [husband] to the [wife]” and … that “the child was exposed to this, in the sense that he was in the environment”. He further found that while the evidence was not overwhelming, there was “a significant amount of evidence” that justified “a finding on the balance of probabilities that the situation was violent and put the child in an intolerable situation”.
[14] In my view, it was open to the motion judge to make those findings. In doing so, I am satisfied that he applied the correct standard of proof and took into account and weighed the pertinent evidence.
[15] As his reasons disclose, the motion judge was very much alive to the frailties in the wife’s evidence and he properly sought out confirmatory evidence before relying on it to find that she had been victimized, both physically and mentally, by the husband.
[16] Contrary to the husband’s submission, I am satisfied that the confirmatory evidence relied upon by the motion judge was sufficiently cogent to restore his faith in the wife’s evidence, such that he could safely act on it to make the findings of abuse on a balance of probabilities.
[17] By way of illustration, relatives in Toronto attested to the husband’s abusive and dominant character, and a woman from Dubai confirmed the wife’s evidence about an occasion in Dubai when the wife was assaulted by her husband and the police were called. The wife also filed photographs showing her injuries.
[18] In addition, there were two significant e-mails from the husband that provided compelling confirmatory evidence regarding two incidents of assault that the wife was able to recall in detail.
[19] The first of these incidents occurred in April or May of 2003. According to the wife, the husband physically assaulted her and in the course of the attack, he bit her on the left shoulder with such intensity that he left a bite mark and a scar that remained visible for several years. In respect of this incident, to which the police were called, the husband wrote to the wife as follows:
I want to reconfirm my sorrow and shame for what happened on the night of Tuesday/Wednesday May 13/14, 2003. It is up to you to accept my apology or refuse it. My feelings of sorrow stand for the fact that you – my wife – are emotionally and physically harmed....regardless of your intention to forgive me or not, to continue the police and court case or not, and to continue our marriage or not.
[20] As the motion judge noted, the content of that e-mail amounted to an admission of fault for which the husband apologized and sought forgiveness.
[21] The second incident involved an assault on the wife that occurred on April 11, 2005, after she and the husband had separated and days before she left for Canada. The police were also called to this incident. Of note, the wife and her friend, who was with her at the time, stated that on this occasion the police paid no attention to the wife and communicated only with the husband.
[22] In an e-mail sent by the husband to the wife on April 29, 2005, the husband stated as follows:
BUT TO MAKE IT CLEAR:
I am ONLY dangerous if someone ATTACKS me dangerously.
But that applies not only to ME, but to almost EVERY HUMAN BEING.
To me, that applies for example to April 11, after your dangerous invasion of my privacy, and your dangerous abuse of [the child] as a shield to protect you during that invasion.
And yes, I will remain a dangerous DEFENDANT of my privacy, my legal rights, my pride, my dignity. IF someone on Earth wants to have peace, he/she should AVOID HARMING ME. The message is simple and clear, and every man on Earth would repeat it: Don’t harm me, and I will remain a peaceful man towards you. But if you harm me, I may become a dangerous defendant of myself against that harm. Take that to any police station, and they will understand it. Take it to any court, and they will approve it.
BUT YOU SAY:
“Remember NO matter what people do; it’s no excuse for you to lose control and yell at them, and punish them physically,”
I SAY:
WRONG, I DISAGREE: “No matter what people do?” No!. I am not Jesus Christ. There was only ONE Christ (otherwise he would be jealous to have a SECOND competitor!).
If someone attacks me, I will attack back. If there is no immediate punishment on the spot, bad people like you would continue to harm others who left them in peace. Verbal insult against me is an ATTACK. Invading my privacy is an attack. Abusing my son as a shield in that invasion is an attack. Every attack must be punished immediately, so that it STOPS immediately. Because Police and Courts need some time to stop it, the damage would be more severe if I wait for them and do not punish attackers on the spot, to stop them from extending the attack.” [Emphasis in original.]
[23] The motion judge quite properly found the content of that e-mail to be “very concerning and upsetting”. Not only did the e-mail confirm the husband’s violence towards the wife on the occasion in question; it also showed him to be a man who was controlling and dominating and willing to resort to violence at the slightest provocation.
[24] Overall, the motion judge found that the situation in the household was violent and put the child in “an intolerable situation and exposes him to serious harm”. He also found that the child was very aggressive and, while he could not with certainty determine the cause of this behaviour, it supported the wife’s position that it was caused by exposure to the domestic violence.
[25] In the end, I am satisfied that the motion judge gave careful and considered reasons for accepting, in the main, the evidence of the wife over that of the husband. Contrary to the husband’s submission, I am not persuaded that the motion judge either misapprehended material evidence or failed to consider it. As this court has pointed out on numerous occasions, he was not required to recount every piece of evidence or resolve every conflict in the evidence.
[26] Read as a whole, the motion judge’s reasons address the material aspects of the evidence and explain, in considerable detail, why he was satisfied that the wife had been the victim of physical and mental abuse at the hands of her husband and why the husband’s misconduct exposed the child to serious harm.
[27] Accordingly, I would not give effect to this ground of appeal.
Issue Two: Risk of serious harm should the wife and child return to Dubai
[28] This issue is somewhat more troublesome. Central to it is the husband’s contention that the motion judge erred in admitting and relying upon a report prepared by Amnesty International, released May 11, 2005, concerning discrimination and violence against women in the Gulf Cooperation Countries, including Dubai, and the inadequate measures taken by the police and the courts to prevent and deter such conduct.
[29] The motion judge admitted the Amnesty International Report over the husband’s objection. In his reasons for judgment, he stated at one point that because the Report stood “uncontradicted”, he could “give weight [to it] insofar as it proves there is reason to be concerned about the degree of access to justice that a woman in general, and a married woman in particular, would have in that part of the world where there is a concern over domestic violence or domestic abuse”. Elsewhere in his reasons, the motion judge stated that the Report “can and should be given a considerable amount of weight”. In the penultimate paragraph of his decision, he held that the Report should be given “a fair bit of weight”, along with other evidence, in concluding that “if returned to Dubai, there is a reasonable likelihood that the violence and the abuse to which [the wife] has been exposed would continue and that she would not be adequately protected from it, and most certainly, the child would not be adequately protected from it”.
[30] On appeal, Greer J. held that the Report had “some relevance” in the circumstances of the case, and found that the Report was not “highly prejudicial” to the husband since it was not commissioned by the wife and submitted by a paid expert.
[31] With respect, I am of the view that in the circumstances of this case, the Amnesty International Report should not have been admitted into evidence, and the motion judge and Greer J. erred in holding otherwise.
[32] On its face, the Report did not purport to be a study devoted to the problems of violence and discrimination against women in Dubai, nor did it specifically address the inadequacies of the Dubai justice system in counteracting these forces. Indeed, as the husband points out, the Report was not even specific to the United Arab Emirates (UAE), of which Dubai is but one member; rather, it related to a host of countries in the region, including Bahrain, Kuwait, Oman, Qatar and Saudi Arabia, as well as UAE.
[33] Upon reviewing the sixty-five page Report, it is noteworthy that the UAE is only referred to on a handful of occasions and Dubai is mentioned only twice. More to the point, the Report does not record a single instance of domestic assault in Dubai that state authorities failed to address. Only one of the women interviewed by the Amnesty International team was from Dubai, and her story of discrimination involved an entirely unrelated matter (i.e. her inability to marry without her father’s consent).
[34] Arguably, at its highest, the Report could perhaps have served to confirm, in the most general way, the wife’s evidence concerning the indifference of the police towards her when they were called in connection with the April 11, 2005 incident. Perhaps as well, the Report could have been used, again in the most general way, to challenge the expert evidence tendered by the husband regarding the legal system in Dubai and the protections it offers to victims of spousal abuse.
[35] I am respectfully of the view however, that with regard to Dubai, the Report was so general that its probative value was at best slight when weighed against its potential prejudicial effect. Hence, I believe that the Report should not have been admitted.
[36] Contrary to the position of the wife, I do not accept that the rules relating to evidence on motions under the Family Law Rules, O. Reg.114/99, assist on this issue. Although those rules may relieve against certain evidentiary hurdles, they do not allow for the admission of evidence of marginal relevance where the probative value is manifestly outweighed by its prejudicial effect.
[37] That brings me to the second concern about the Amnesty International Report, namely, whether it constituted inadmissible hearsay evidence.
[38] Given my conclusion that the Report was otherwise inadmissible, I need not finally resolve the hearsay issue. I would simply point out that where a document like the Amnesty International Report is being tendered for the truth of its contents in respect of contested facts (be they adjudicative, legislative or social) that are at the centre of the controversy between the parties, the reliability and trustworthiness of the document takes on added importance. To that end, I believe that trial and motion judges should be guided by the principles set forth by Binnie J. in R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 60-61. Although Binnie J.’s comments were directed to the issue of judicial notice, I believe that they are apposite to situations like the one at hand. Thus, in this case, the closer the Amnesty International Report came to the dispositive issue, namely, whether the wife and child would be adequately protected by the Dubai justice system, the closer scrutiny it deserved.
[39] Here, that could well have translated into a need to submit evidence from witnesses with firsthand knowledge of the Report who could be subject to meaningful cross-examination. No such witnesses were available here. The Report was appended to the affidavit of Mr. Robert Alexander Neve, Secretary-General of Amnesty International, Canadian Section. As is apparent from Mr. Neve’s affidavit, he did not participate directly in the drafting of the Report; hence, he could only attest to the fact that it had been prepared “in conformity with Amnesty International’s exacting quality control standards”.
[40] Without questioning the adequacy or legitimacy of those standards, it is apparent that Mr. Neve could not have been questioned about any of the details underlying the Report, including basic matters such as the people who were interviewed and, perhaps more importantly, those who were not.
[41] Despite my conclusion that the Amnesty International Report should not have been admitted into evidence, I am nonetheless of the view that the motion judge came to the right conclusion in making the order he did.
[42] The Amnesty International Report was but one factor that the motion judge took into account in concluding that if the wife returned to Dubai, there was “a reasonable likelihood that the violence and the abuse to which [she] has been exposed would continue” and that neither she nor the child would be “adequately protected from it”.
[43] Apart from the Amnesty International Report, the motion judge had before him evidence of at least one instance (the April 11, 2005 incident) in which the police in Dubai were called and did nothing to protect the wife’s interests, choosing instead to communicate only with the husband. Moreover, there was evidence, which the motion judge quite properly viewed as significant, that following the wife’s flight from Dubai to Canada, the husband obtained an order from a court in Dubai which required the wife to return to the husband’s home and obey him. The pertinent part of the order reads as follows:
The first request of the Plaintiff [husband] is: to oblige the Defendant [wife] to obey him, thus the Court is accepting his request. It is stated legally, that the wife is supposed to stay in her husband’s house and obey him. She shall not leave his house without a lawful reason. Whereas the witnesses to the Plaintiff confirmed that he has treated his wife in a good way, has provided her with suitable house and comfortable living. In spite of that, she left without reason, from which this court orders her to return and obey her husband. [Emphasis added.]
[44] Given the husband’s history of alcoholism, his serious physical and emotional abuse of the wife, his stated belief that he is justified in using immediate physical force to stem invasions of his privacy and to rebuke verbal insults, his dominant and controlling behaviour, and a court order from Dubai requiring the wife to reside with him and obey him, I believe the evidence amply justifies the order made by the motion judge.
[45] In short, having regard to the findings of the motion judge, I believe that he was correct in concluding that the child would, on a balance of probabilities, suffer serious harm if he were to be removed from Ontario and returned to the husband in Dubai.
[46] In the result, I would dismiss the appeal. The parties agree and I concur that the wife should have her costs in the amount of $7,500 inclusive of G.S.T. and disbursements.
Signed: “M.J. Moldaver J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree Paul Rouleau J.A.”
RELEASED:”DOC” July 26, 2007