COURT OF APPEAL FOR ONTARIO

CITATION: H.E. v. M.M., 2015 ONCA 813

DATE: 20151125

DOCKET: C59991

Hoy A.C.J.O, Weiler and Pardu JJ.A.

BETWEEN

H.E.

Applicant (Appellant in Appeal)

and

M.M.

Respondent (Respondent in Appeal)

Amy A. Green and Emily M. Carroll, for the appellant

Rick Peticca, for the respondent

Heard: October 5, 2015

On appeal from the order of Justice Grant A. Campbell of the Superior Court of Justice, dated December 31, 2014 and the addendum to the order dated January 6, 2015.

Weiler J.A.:

A. Overview

[1] The overarching issue in this appeal is whether the trial judge erred in declining to assume jurisdiction under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), to decide custody of the parties’ two children, E.M. and R.M., Canadian citizens.

[2] The appellant, Ms. H.E., was living in Egypt with the children when she moved to Ontario. In addition to seeking custody of the children under the CLRA or the court’s parens patriae jurisdiction, she sought a declaration that her Egyptian divorce from the respondent, Mr. M.M., was invalid and other ancillary relief.

[3] The respondent’s position was that the court should not assume jurisdiction. The appellant had abducted their children from Egypt, their last habitual residence and the proper jurisdiction in which to resolve the issue of custody. He argued that their Egyptian divorce was valid and that the appellant had attorned to the Egyptian court’s jurisdiction in all matters.

[4] The trial judge recognized the divorce as valid and found that the appellant had attorned to the jurisdiction of the Egyptian court. He found there was no basis to assume jurisdiction to decide the issue of custody and dismissed the appellant’s application. He concluded that the appellant should not be “rewarded” for wrongfully removing the children and ordered their return to Egypt.

[5] The appellant appeals only the issue of the trial judge’s refusal to assume jurisdiction. She also brings a motion to introduce fresh evidence on appeal.

[6] For the reasons that follow, I would hold that the trial judge erred in his approach to the test for jurisdiction under the CLRA and in concluding that all of the criteria for the assumption of jurisdiction under s. 22(1)(b) of the CLRA were not met. In part, the trial judge’s error resulted from a palpable and overriding error in his assessment of the criterion of whether there was substantial evidence in Ontario concerning the best interests of the children.

[7] I would also hold that the trial judge erred by failing to consider relevant evidence. In holding that there was no evidence the children would suffer serious harm if they were removed from Ontario, he did not consider whether the appellant’s allegations of abusive treatment by the respondent during their marriage were true and would put the children in an intolerable situation. It is unnecessary for me to decide this question on appeal because the fresh evidence establishes that the children would suffer serious psychological harm if they were returned to Egypt.

B. The Facts

[8] The appellant was born and raised in Egypt and is an Egyptian citizen. The respondent, born in Algeria, is an Egyptian citizen. The parents and relatives of both parties reside in Egypt. The respondent moved to Canada in 1998 and became a Canadian citizen in 2002.

[9] In December 2003, the parties married in Egypt. In August 2004, the appellant joined the respondent in Canada. She has permanent resident status in Canada. They purchased a house in Mississauga (the “Cobbinshaw property”) in September 2005. In October 2005, their daughter E.M. was born, and in December 2006, a second daughter, R.M, was born. The children have dual Canadian-Egyptian citizenship.

[10] On August 27, 2007, the family went to a wedding in Egypt following which the parties had an argument. The respondent returned to Canada alone in September 2007. The appellant and the children remained in Cairo, Egypt.

[11] In October 2007, the respondent, who was working as an engineer for Nortel, obtained a job transfer to Saudi Arabia. The parties reunited and the family returned to Canada to pack in March 2008. On April 22, 2008, they went to Egypt where they stayed until July 24, 2008, when the family moved to El Reyad, Saudi Arabia. The respondent has lived in Saudi Arabia ever since.

[12] On September 20, 2009 the family visited Egypt. The appellant and respondent separated the next day. The respondent returned to Saudi Arabia, while the appellant and the children remained in Cairo at her parents’ home.

[13] The respondent obtained an Egyptian divorce on October 5, 2009. Before obtaining the divorce, he was not required to notify the appellant, and did not communicate with her, regarding his obtaining a divorce. The divorce became final in December 2009 after the waiting period, or “iddah” had elapsed.

[14] After the divorce, the appellant did not challenge its validity. It does not appear that there was any means to contest it. The respondent has since remarried.

[15] On February 18, 2010, the appellant obtained an order for physical custody of the children by knowingly misrepresenting facts to the Egyptian court. Notwithstanding this, when the respondent learned of the order, he did not seek to set it aside.

[16] On May 30, 2010, the respondent’s father was granted weekly visitation rights to the children every Friday from 4 p.m. to 7 p.m. at the Al Shams Sports Club (“Sports Club”) in Cairo. The respondent, who under Egyptian law is the guardian of the children, saw the children at the club when he was in Egypt.

[17] In May 2011, the appellant obtained an Egyptian court order granting her educational custody of the children to allow her to make decisions about their schooling without consulting the respondent.

[18] On June 27, 2012, the appellant and the children moved back to Canada without notifying the respondent.

[19] On January 31, 2013, the appellant commenced these proceedings in the Superior Court of Justice in Kitchener, Ontario.

[20] After being served with the application in Cairo, on March 1, 2013, the respondent and his father sought to terminate the appellant’s physical custody of the children (the “custody dropping” case) in Egypt based on her breach of the May 30, 2010 order granting access to the respondent’s father.

[21] The Cobbinshaw property, which had been rented, was sold with the closing in November 2013. The proceeds of sale were held in trust pending the court’s decision as to the validity of the divorce and whether the appellant had an equalization claim under the Family Law Act, R.S.O. 1990, c. F.3.

C. The legal framework

(1) The Children’s Law Reform Act

[22] The CLRA contemplates only four ways in which an Ontario court can exercise its discretion to assume jurisdiction to make an order for custody of a child: Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, at para. 9-13, leave to appeal refused, 34945 (November 22, 2012).

[23] First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.

[24] Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements specified in the section are met.

[25] Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm under certain circumstances, including the removal of the child from Ontario.

[26] Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA. The jurisprudence has limited the role of s. 69 to filling “gaps” in the legislation: see Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, at paras. 21-26, leave to appeal to S.C.C. refused, 34945 (November 22, 2012) and Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, at para. 51.

[27] The aim of ss. 22, 23, 25, as well as 41-45 (dealing with extra-provincial matters), and 46 of the CLRA (incorporating the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII (entered into force 1 December 1983)), is to create a consistent approach to jurisdiction where children’s best interests are at stake and to actively discourage the abduction or wrongful retention of children: Anita Volikis & A.J. Jakubowska, 2014-15 Annotated Ontario Children’s Law Reform Act (Toronto: Carswell, 2014). Only a parent having a right to custody of the children can invoke the provisions of the Convention. In this case, the respondent’s position is that as he is the guardian of the children, he is their legal custodian. The appellant did not challenge the respondent’s standing to invoke the provisions of the CLRA.

[28] The first stated purpose of Part III of the CLRA, however, is “to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children”: s. 19(a).

[29] The decision whether to assume jurisdiction is a discretionary one. Pursuant to s. 25 of the CLRA, a court may decline to exercise its jurisdiction “where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”

(2) Custody under Egyptian Personal Status Law

[30] An Egyptian court would not determine custody based on the best interests of the child. According to the respondent’s expert, Mr. Mehrez, under Egyptian law, the father is the guardian of the children, or “wali”; he has the right to make major decisions regarding their education, religion, and health etc. The mother has physical custody of children until the age of 15, when custody goes back to the father. At this age, a judge will give them a choice of which parent to live with.

[31] Mr. Mehrez’s expert report explained that a parent without physical custody is entitled to contact with the child if they obtain a court order. The access rights also go to the grandparents in case the parent is absent. In the event of a breach of an access order, the mother may lose physical custody to the other parent for a period determined by the judge.

[32] A mother can also lose custody if proven untrustworthy or unfit to care for her children. If she remarries, she is likely to lose custody if the father proves she is unable to care for the children because of her new marriage.

[33] If a mother loses custody, the order of preference for alternative custodians passes first to the mother’s closest female relatives, not to the father.

(3) The Convention on the Civil Aspects of International Child Abduction

[34] Although Egypt is not a signatory to the Hague Convention, the governments of Canada and Egypt have executed a bilateral agreement. Article 2 of the Agreement Between the Government of Canada and the Government of the Arab Republic of Egypt Regarding Cooperation on Consular Elements of Family Matters, 23 July 1997 (entered into force 10 November 1997), applies to children of Canadian or Egyptian citizens, and persons with dual citizenship.

[35] Article 2 pledges co-operation and respect for the right of a child to maintain personal relations with a parent from whom the child is separated “except if it is contrary to the child’s best interests”, as well as respect for the rights of access of a parent who is not entitled to custody of the child by supporting visas and exit permits for the non-custodial parent.

D. the trial judge’s decision

[36] The trial judge recognized the parties’ Egyptian divorce as valid, declined to assume jurisdiction over custody and access, and dismissed the appellant’s application in its entirety.

(1) Attornment

[37] The trial judge held that the appellant had attorned to the Egyptian court’s jurisdiction because she had acted upon her divorce to apply for her dowry, property, and child educational custody orders. She only discontinued her child support proceedings there after she started simultaneous proceedings in Ontario.

[38] The respondent and his father’s custody dropping case was ongoing. The appellant’s mother had attended on her behalf to contest the court’s jurisdiction.

[39] In refusing to assume jurisdiction, the trial judge found that the appellant’s attornment to the Egyptian court’s jurisdiction was a crucial factor.

(2) Assuming jurisdiction under s. 22(1)(b) of the CLRA

[40] The trial judge observed that, as the children were not “habitually resident” in Canada when the proceedings began, each of the six criteria under s. 22(1)(b) of the CLRA had to be met before assuming jurisdiction under that section.

[41] There was no issue that the children were physically present in Ontario when the proceedings were commenced, satisfying the first criterion.

[42] With respect to the second criterion, substantial evidence concerning the best interests of the child, the trial judge cited Solem v. Solem, 2013 ONSC 1097,[2013] W.D.F.L. 2720, for the proposition that it is not sufficient that there be some evidence in Ontario. He also relied on Nordin v. Nordin (2001), 2001 28199 (ON SC), 17 R.F.L. (5th) 119 (Ont. S.C.), at para. 9, in which the court found that Ontario had “very recent evidence the wife [was] no doubt structuring… since her arrival…”

[43] He noted that the respondent, who had visited the children at the Sports Club in Cairo regularly, had not seen the children since their removal from Egypt.

[44] In relation to the third criterion, that no application for custody or access is pending in the place where the child is habitually resident, the trial judge pointed to the Egyptian proceedings commenced by the respondent and his father to vary the custody order, scheduled to be heard in January 2015.

[45] The fourth criterion, that no extra-provincial order in respect of custody or access to the child has been recognized by a court in Ontario, was, however, satisfied. At para. 101, he refused to recognize the appellant’s 2010 Egyptian custody order, which “she obtained through subterfuge and lies.”

[46] As to the fifth criterion, the trial judge observed that the children were Canadian-born but did not have a real and substantial connection to Ontario when they were removed from Egypt. Despite forming friendships and community ties over the past two years, he found at para. 103 of his reasons that the criterion was not met “in the face of how they arrived” in Ontario.

[47] In relation to the sixth and final criterion, the balance of convenience, the trial judge found at para. 106 that the independent evidence that would be of greatest assistance to the court was in Egypt, “since the children’s education (almost entirely), their families and friends, medical and health information is all in Egypt.”

(3) Assuming jurisdiction under s. 23 of the CLRA

[48] Having declined jurisdiction under s. 22, the trial judge then considered whether the child would suffer serious harm if removed from Ontario under s. 23. He found that the appellant had not provided any independent evidence to support her submission that the children would suffer serious psychological harm if returned to Egypt, and refused to assume jurisdiction.

[49] He found that the appellant’s allegations of abuse by the respondent were relevant to the issue of controlled access, but not to the issue of jurisdiction. The appellant offered no independent evidence of abuse and admitted to deceiving the Egyptian court to obtain custody. The respondent’s denials and demeanour seemed to discredit the allegations, but in any event, he did not have to make credibility findings since his decision was based on a statement of agreed facts.

[50] At para. 110, he concluded that although the appellant had physical custody of the children, and had been their primary caregiver since birth, she should not be “rewarded” for abducting them from their extended family in Egypt.

(4) Parens patriae jurisdiction

[51] The trial judge found no “gap” in the legislation and declined to exercise the court’s parens patriae jurisdiction.

(5) Summary of conclusions respecting all claims

[52] The trial judge summarized his conclusions, at para. 123, including:

(d) that at the time of the divorce, the children had no remaining connection with or to Ontario and that in order to respond to [the appellant]’s demands (and [the respondent]’s own desire) the parties intended to live in an Arabic/Middle Eastern country where Arabic customs and language prevailed;

(e) that after receiving notice of the Divorce…[the appellant] availed herself of the Egyptian courts to assert her rights as a…divorced spouse, with children, on several occasions relating to property, support and custody issues and that she had attorned to that jurisdiction;

(g) that [the appellant] and her parents colluded to develop a plan to obstruct [the respondent] and his family from having any ongoing relationship with the girls and developed a scheme to mislead [him] and his family (and the courts) in order to effect an “escape” with the girls to a far distant jurisdiction, the result of which would ensure that no realistic connection could be maintained with the [M.] family;

(h) that [the appellant] abducted (removed) the girls secretly for her own purposes, entirely ignoring the impact of her actions upon the girls’ established relationships in Cairo and to their emotional and relationship detriment;

(l) that there remains extant a contest custody claim(s) in Cairo in which both parties continue to participate, each with their own lawyer;

[53] On January 6, 2015, the trial judge amended his order that the appellant bear the cost of returning the children to Egypt due to her impecuniosity and ordered that the respondent pay with the possibility of future reimbursement.

E. Issues

[54] The overarching question is whether the trial judge erred in refusing to exercise his jurisdiction. The appellant raises four main sub-issues:

1. Did the trial judge err in finding that the appellant attorned to the Egyptian court’s jurisdiction?

2. Did the trial judge err in declining jurisdiction under s. 23 of the CLRA?

3. Did the trial judge err in declining jurisdiction under s. 22(1)(b) of the CLRA?

4. Did the trial judge err in holding that the appellant’s allegations of abuse were not relevant to the determination of jurisdiction?

F. The Fresh evidence

[55] Before addressing the issues on appeal, I must first deal with the appellant’s motion to adduce fresh evidence.

(1) Description of the fresh evidence

[56] In support of her motion, the appellant filed affidavit evidence that on January 9, 2015, Carizon Family Counselling referred her to Family & Children’s Services (“the Society”) based on concerns that the children had experienced violence by the respondent as victims and as witnesses of violence towards her.

[57] The appellant submits a letter from Ms. Sherri Greg, a child protection worker with Family & Children’s Services, dated January 30, 2015 that states:

[E.M.] remember[ed] times when her dad was slapping her mom, pulling her pants down and slapping her making her cry. She also disclosed physical abuse to herself by dad recalling a time when she broke a toy and dad slapped her in the face…R.M. didn’t have any real memories of the exposure to violence but did [indicate]…how scared she was to go with dad.

[58] According to Ms. Greg, E.M. said she felt uncomfortable during the last visit with the respondent (during trial proceedings), because he grabbed her buttocks. A man told the respondent it was not appropriate to touch her that way. E.M. also said the respondent speaks to her inappropriately on the phone.

[59] Ms. Greg’s letter stated that John Dreger, a retired teacher-guidance counselor, contacted and met with the Society to report witnessing the respondent inappropriately touching E.M. at the access visit on January 9, 2015 – the same day as E.M.’s disclosure of the incident.

[60] Ms. Greg wrote a follow-up letter on August 14, 2015. In February 2015, the Society received a referral from Carizon due to concerns of serious mental health issues with E.M. She “had threatened to kill herself, slice her throat if deported back to Egypt” and in March, she confirmed to the Society a clear, concrete plan to kill herself if removed from her home. The children began intervention services with Carizon and are seeing a psychiatrist for high anxiety.

[61] Ms. Greg also indicated that R.M. was crying while talking about the possibility of having to return to Egypt especially if she and her sister had to leave the appellant. She was nervous because she had learned to read and write in English and not Arabic, and was worried about leaving her friends.

[62] The proposed fresh evidence also consists of letters filed by the children’s school principal and a teacher indicating that they are doing very well at school.

[63] The appellant further alleges that the respondent has ceased to exercise telephone access, which has caused the children distress. She has filed correspondence from the appellant’s counsel in that regard.

(2) The parties’ positions

[64] The appellant submits that the fresh evidence is admissible and required to make a disposition in the children’s best interests.

[65] The respondent opposes the motion on the basis that it does not meet the requirements in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, for adducing fresh evidence:

1. The evidence should not be admitted if by due diligence it could have been adduced at trial;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. It must be credible, in the sense it is reasonably capable of belief; and

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[66] The respondent points out that the fresh evidence of alleged inappropriate conduct towards the children could have been adduced at trial and was not. The appellant only claimed abuse towards her. He denies the allegations. He also denies he was approached by a bystander during his last access visit during trial proceedings. He submits that the appellant coached the children to fabricate the claims and points out that the appellant supervised the access visit from a short a distance away. The allegations, not pleaded in the Egyptian court proceedings, came out four months after the visit and three days after the trial decision.

[67] With respect to the respondent’s lack of telephone access pending trial, the respondent submits that it was frustrated by the appellant who, in January 2015, turned off the cell phone he gave the children. When he was able to speak to them from October to December 2014, the appellant interfered such that he could not speak freely.

[68] Overall, the respondent submits that the fresh evidence discussed above is not credible or sufficiently cogent, and therefore it would not be in the interests of justice to admit it: R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at para 19. The respondent also submits that the fresh evidence violates his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

[69] The respondent’s affidavit states that he would like the children’s maternal grandmother to have custody of them. He submits that if they are returned to Egypt, they should stay with the appellant until the issue of custody is determined, and undergo immediate counselling to be paid for by him.

(3) Admissibility of the fresh evidence

[70] I begin by observing that the respondent’s Charter rights have no application to these proceedings. The Charter only applies to governmental actors: RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573.

[71] Where the welfare of a child is at stake, the jurisprudence indicates a more flexible approach to the Palmer test for the admission of fresh evidence is appropriate: Decaen v. Decaen, 2013 ONCA 218, 303 O.A.C. 261, at para. 13; see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165. Flexibility in such matters is consistent with the need for up-to-date information on children, whose fate often hinges on a determination by judges, and is thus in line with the overarching criterion for admission, namely, the interests of justice.

[72] The more flexible approach to fresh evidence in matters relating to child welfare does not, however, render all proffered fresh evidence admissible. The factors enunciated in the Palmer test remain relevant. In particular, to be admissible, the fresh evidence must be credible and reasonably capable of belief. Here, some of the fresh evidence on offer consisted of unsworn hearsay statements that do not meet that threshold requirement.

[73] I agree with the respondent that the evidence of alleged inappropriate touching during an access visit should not be admitted. It could have been adduced at trial and I question its credibility – the visit was in a public place, the appellant was nearby, the reporting was delayed until after the result at trial was known, and the bystander did not make a report until January 9, 2015, the same day as E.M. That this is a mere coincidence seems unlikely. Similarly, I would also decline to admit the evidence of inappropriate comments to the children on the telephone.

[74] I would, however, allow the appellant’s motion to adduce the fresh evidence pertaining to the emotional and psychological well-being of the children. It was not available at trial, it is highly relevant in that it enables the court to determine jurisdiction with an accurate view of the situation, and it is uncontroverted. Taken with the evidence at trial, it could reasonably be expected to affect the outcome.

[75] In light of this court's discretion to admit fresh evidence and the CLRA’s purpose of ensuring that custody applications are determined based on the best interests of the child, it is in the interests of justice to admit the evidence.

[76] I now turn to the main issue, namely, whether the trial judge erred in declining to assume jurisdiction and in ordering the children be returned to Egypt.

G. analysis

(1) Did the trial judge err in finding that the appellant attorned to the Egyptian court’s jurisdiction?

[77] The appellant submits that the trial judge erred in finding that she attorned to the jurisdiction of the Egyptian court. After she brought this custody application in Ontario, the respondent and his father initiated the custody dropping case in Egypt. Mr. Mehrez testified that this proceeding was the only one before the Egyptian court at the time of trial.

[78] The respondent submits that the trial judge did not err in finding that the appellant had attorned to the jurisdiction of the Egyptian court proceeding. He relies on the decision of this court in Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at para. 22, to the effect that, when a party goes beyond simply challenging the jurisdiction of a court or asserting that it is not the most convenient forum in which to try the case, the party will give the court consent-based jurisdiction.

[79] As previously mentioned, the trial judge found, at para. 74, that the appellant’s attornment was “a most crucial factor in deciding against her request that this court accept jurisdiction.”

[80] There is no reference to attornment in the CLRA. In Wang, at para. 51, this court held that if the statutory test for jurisdiction under s. 22 is not made out, the court cannot resort to a common-law test for jurisdiction. The respondent’s reliance on the common law test for attornment is therefore misplaced.

[81] Standing alone, attornment can be at most, one of the factors to consider in the analysis under s. 22(1)(b) or the decision whether to decline jurisdiction under s. 25: Murray v. Ceruti, 2014 ONCA 679, 325 O.A.C. 300, at paras. 38-40, leave to appeal to S.C.C. refused, 36193 (March 12, 2015).

[82] The CLRA mandates a child-centered approach based on the best interests of the child in discouraging child abduction. Children have no control over where their parents litigate.

[83] The trial judge therefore erred in finding that attornment was crucial to whether the court had jurisdiction to entertain the custody claim.

(2) Did the trial judge err in declining jurisdiction under s. 23 of the CLRA?

[84] The trial judge rejected the appellant’s submission that the children would suffer serious psychological harm if they were returned to Egypt, and held that the appellant had provided no independent evidence of this whatsoever.

[85] He then linked his decision not to assume jurisdiction to his view, at para. 110, that the appellant “should not be ‘rewarded’ for [the children’s] wrongful removal under section 22(3) of the CLRA.”

[86] He erred in basing his decision not to exercise jurisdiction under s. 23 on his finding that the children had been wrongfully removed from Egypt under s. 22(3). That section states that removal will not alter the child’s habitual residence unless the person seeking the child’s return has acquiesced or unduly delayed in bringing proceedings. Section 23 only requires that the children be physically present in Ontario.

[87] When there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.

[88] While the trial judge did not have the benefit of the fresh evidence of the children’s mental health, this evidence confirms that on a balance of probabilities, there is a serious risk of psychological harm to the children if they are returned to Egypt, especially if the appellant does not go with them.

(3) Did the trial judge err in declining jurisdiction under s. 22(1)(b) of the CLRA?

[89] Once s. 23 has been satisfied, there is no need to conduct an inquiry into s. 22 of the CLRA: Baril v. Liard, 1994 Carswell Ont 2465 (C.A.); leave to appeal to S.C.C. refused (1994), 74 O.A.C. 160.

[90] For the sake of comprehensiveness, I would hold that the trial judge also erred in declining jurisdiction under this section. I agree with the appellant that all six criteria for assuming jurisdiction under s. 22(1)(b) are satisfied in this case.

(a) Physical presence in Ontario

[91] There is no issue that the children were physically present in Ontario when the appellant initiated this application, as found by the trial judge.

(b) Substantial evidence concerning the best interests of the child is in Ontario

[92] The “best interests of the child” is defined in s. 24(2) and includes consideration of:

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child;

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

[93] The appellant argues that substantial evidence concerning the best interests of the children lies in Ontario, including most of the evidence respecting their education. This is particularly so if the fresh evidence is considered.

[94] I agree with the appellant’s position. The trial judge erred in finding that almost all of the evidence of the children’s education, friends, and medical and health information, was in Egypt.

[95] The trial judge found that the children saw their father regularly at para. 100 of his reasons.

[96] The respondent’s affidavit filed in response to the affidavit to admit fresh evidence states that following the divorce, he frequently telephoned the respondent to see or speak to the children and was told they did not wish to speak to him. As a result he obtained the court order allowing for access to him and his family in Egypt. He states that after the court order, “Notwithstanding the Appellant’s allegations that I would see the children every 4-5 months in Egypt following the divorce, which are completely false, I would visit the children in Egypt almost every month by attending with my parents during their scheduled access visits.”

[97] Both the trial judge’s reasons and the respondent’s affidavit ignore the Sports Club record filed in court which indicates that although the appellant and her parents presented themselves on multiple occasions for access to be exercised, in many instances going over periods of months no one attended in order to exercise access.

[98] The trial judge made a palpable and overriding error in finding that since moving to Saudi Arabia in 2008, the respondent regularly saw the children at access visits at the Sports Club with the appellant, her mother, or his father in attendance. The trial judge thus misapprehended the evidence in finding, at para. 38, that the “[court ordered] access was frequently obstructed by [the appellant] and her parents”.

[99] In determining that substantial evidence concerning the children’s best interests did not lie in Ontario, the trial judge erred in not considering the fact that the respondent no longer lives in Egypt and has not for many years. Since the children left Egypt, the respondent has not seen them save for two court ordered access visits during trial. Substantial current independent evidence as to the respondent’s parenting capacity is not in Egypt. Based on the records of the Sports Club, it would not appear that the children have a close relationship with their paternal grandparents.

[100] The appellant has been the children’s caregiver since birth and they have never been separated from her. Evidence as to this relationship and her parenting capacity lies in both Ontario and Egypt.

[101] Although evidence as to the parenting capacity of the proposed custodian, the appellant’s mother, is in Egypt, there is no indication that she is seeking to have custody determined there.

[102] The appellant submitted that the trial judge’s reliance on the decisions of Nordin and Solem was misplaced. I agree. Both cases are distinguishable; they involved parties who had never lived in Canada together.

[103] In Nordin, the children had been in Ontario for a few weeks at the time of the hearing. Two of three children were born in Japan, their last residence, and where the father still lived. The children were involved in extra-curricular activities and had friends in Japan. The court held that compared to truly independent evidence in Japan, recent evidence of Ontario teachers and doctors was of little assistance in providing a historical view of the children’s interests.

[104] At the time of the proceedings in Solem, the children had lived in Canada for a substantial period of time. In that case, however, the parents were Norwegian citizens; the children had all been born in Norway and had lived there all their lives until their mother removed them to Ontario. Although the mother criticized the father’s care of the children, there was no dispute that they were in his care for substantial periods of time. That is not the situation here.

[105] Since June 2012, the children have lived in Ontario, where they were born. E.M. previously lived in Ontario from October 2005 until August 2007. R.M. lived here for the first eight months of her life. The children spent about a year in Egypt and a year in Saudi Arabia before returning to Egypt for almost three years.

[106] The bulk of their educational experience is in Ontario. As of trial, E.M. had spent about the same amount of time in Canada as in Egypt. She has records for Grades 2 through 4 in Ontario. R.M. had spent about one less year in Ontario than in Egypt, where she attended kindergarten. Since moving to Ontario at the age of five and half, she has records for Grades 1 through 3.

[107] The trial judge recognized that the children have been living and going to school in Ontario for the past two years. It was an error for him to discount the evidence of their friends and extra-curricular involvement here just because of how they arrived in the jurisdiction. Nor did the trial judge consider the effect on the children of transitioning from learning in English to Arabic if custody were to be determined in Egypt.

[108] Insofar as the children’s health is concerned, I must consider the fresh evidence as to their mental health and emotional upset.

[109] In concluding that substantial evidence concerning the best interests of the children was not available in Ontario, the trial judge erred in his approach and committed a palpable and overriding error of fact concerning the children’s contact with the respondent. There is substantial evidence respecting the children in Ontario.

(c) No application for custody or access is pending before an extra-provincial tribunal in another place where the child is habitually resident

[110] I read this requirement to mean that no application is pending when the Ontario court’s jurisdiction is invoked. The party asking the court to assume jurisdiction must not be avoiding proceedings elsewhere.

[111] To read this provision otherwise would mean that as soon as proceedings were commenced in the jurisdiction of the child’s last habitual residence, the Ontario court must defer, no matter what stage of the proceedings in Ontario. This would make no sense if neither parent has ties to that jurisdiction.

[112] In this case, this criterion is satisfied. When the appellant initiated proceedings in Ontario she had terminated proceedings in Egypt and the respondent and his father had not initiated the custody dropping case in Egypt.

(d) No extra-provincial order in respect of custody of or access to the child has been recognized in Ontario

[113] There is no issue that this requirement is satisfied.

(e) Real and substantial connection to Ontario

[114] The trial judge again relied on Nordin and Solem to hold, at para. 105, that “any ‘connection’ that the girls have with Ontario was nefariously created by [the respondent] with the sole intent of making a status quo argument and meeting the ‘substantial connection’ test.”

[115] Crucially, neither decision involved a Canadian-born child or a child who had previously lived in Ontario. As I have indicated, in both cases, the children had lived their entire lives in the foreign country before coming to Ontario. In both cases, the parent seeking the children’s return to the foreign jurisdiction was living in that jurisdiction and had an ongoing real and substantial connection to it.

[116] The trial judge erred in relying on these decisions and in finding that the children lacked a real and substantial connection with Ontario. Apart from their mother, their ties to Egypt are to their extended family.

[117] The children, now aged 10 and 8, had lived in Ontario for a total of about four and three years respectively at the time of trial. They have friends, participate in extra-curricular activities, and have ties to their community.

(f) Balance of convenience

[118] The trial judge acknowledged the financial imbalance between the parties. The respondent was financially independent whereas the appellant was not. However, he held that the appellant could rely on her parents for support. He found that the balance of convenience favoured Egypt because the independent evidence that would be of greatest assistance to the court respecting the children was in Egypt. I have already given my reasons for holding that the trial judge erred in so finding. Overall, the balance of convenience favours Ontario.

(g) Conclusion on assuming jurisdiction under s. 22(1)(b)

[119] The criteria of s. 22(1)(b) have all been met. In the circumstances, the trial judge erred in declining to assume jurisdiction under this section.

(4) Did the trial judge err in holding that the appellant’s allegations of abuse were not relevant to the determination of jurisdiction?

[120] The appellant submits that the trial judge erred in dismissing her allegations of abuse as irrelevant to the determination of jurisdiction.

[121] The respondent argues that the trial judge was not required to make credibility findings regarding the appellant’s allegations of abuse and, in any event, he rejected the allegations because: (a) the appellant did not produce any independent evidence; (b) the respondent strongly denied the allegations; and (c) the appellant admitted to manipulating and misrepresenting her circumstances to the Egyptian court for her own purposes.

[122] The respondent’s submission that the trial judge rejected the appellant’s evidence of abuse ignores his qualification, at para. 13, that “where necessary and as it applies only to the recognition/jurisdiction issues of the Egyptian divorce, [he] prefer[red] the [r]espondent’s evidence to [the appellant]’s…”

[123] The trial judge’s holding that the allegations of abuse by the appellant were not relevant to the determination of jurisdiction of the court is an error of law.

[124] The allegations are relevant to the question whether the court should assume jurisdiction on account of “serious harm to the child” under s. 23 of the CLRA. Allegations of physical or emotional abuse are also relevant insofar as parenting capacity is concerned: see ss. 24(3) and (4).

[125] A finding that a child would suffer “serious harm” if removed from Ontario may be based on serious harm to a parent. In Isakhani v. Al-Saggaf, 2007 ONCA 539, 226 O.A.C. 184, the mother fled to Canada from Dubai. There was a significant amount of evidence that the father was physically and emotionally abusive towards her that justified this court taking jurisdiction under s. 23 and a “‘finding on the balance of probabilities that the situation was violent and put the child in an intolerable situation’”: Isakhani, at para. 13. On the balance of probabilities, the child would suffer serious harm if returned to Dubai.

[126] The trial judge erred in not considering the allegations of abuse insofar as they were relevant to the court’s potential assumption of jurisdiction under s. 23.

H. disposition

[127] For the reasons I have given, I would hold that the trial judge erred in declining jurisdiction under the CLRA and would allow the appeal. Accordingly, I would order that paragraphs 3 to 6 of the trial judge’s order declining jurisdiction, ordering the return of the children of the marriage to Egypt and ancillary orders be set aside. Instead, I would order that jurisdiction to determine custody of the children be exercised by the Superior Court in Ontario.

[128] In order to stabilize the situation of the children, there will be an order granting interim custody of the children to the appellant pending further order of the Superior Court.

[129] I would also set aside paragraph 8 respecting costs at trial. As success at trial is now divided, I would order that each party bear their own costs of the proceedings.

[130] Having regard to the outcome of the appeal and the costs submissions of the parties, I would order costs of the appeal to the appellant fixed in the amount of $35,000 inclusive of all fees and disbursements.

Released: (A.H.) November 25, 2015 “K.M. Weiler J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree G. Pardu J.A.”