Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20200529 DOCKET: C67443
Lauwers, Paciocco and Fairburn JJ.A.
BETWEEN
Mazen Geliedan Applicant (Respondent)
and
Abir Rawdah Respondent (Appellant)
Counsel: Kristy Maurina, Michael J. Stangarone and Edward C. Conway, for the appellant Matthew Gourlay, Farrah Hudani and Jessica Luscombe, for the respondent
Heard: In writing
Reasons for Decision
[1] This is an application brought by the Applicant/Respondent in Appeal (“father”) to re-open an appeal that has already been decided: 2020 ONCA 254. The application is based upon new evidence placed before the court, consisting of text messages sent by the Respondent/Appellant in Appeal (“mother”) to the father after the appeal was heard, in the time period immediately prior to the release of the judgment.
[2] The child at the centre of this litigation was born in the United Kingdom. The U.K. is the only place the family lived together prior to separation. After the parents separated, the father eventually went to live in Dubai. The mother and child later joined the father in Dubai. Well over a year after arriving in Dubai, the mother and child came to Ontario, where they have lived since. They had been in Ontario for only a short time before the father sought to have the child returned to Dubai. As recounted in the judgment, the parties have dramatically different narratives as to why the mother and child travelled to Dubai, were in Dubai as long as they were, and why the mother and child later came to Ontario.
[3] The father obtained an order pursuant to s. 40 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) to have the child returned to Dubai. The mother appealed from that order. We do not intend to repeat the analysis set out in the judgment. This court determined that the application judge erred in deciding the s. 40 application without regard to a binding, valid Consent Custody Order in the U.K., one that specifically governs the circumstances under which the child could be removed from the U.K.
[4] Among other things, this court stayed the father’s s. 40 CLRA application on the condition that he promptly commence a similar proceeding in the court that issued the Consent Custody Order. In the event that the U.K. court declines to take jurisdiction, this court ordered that the father could apply to the Ontario Superior Court of Justice to lift the stay and seek a rehearing of his s. 40 application. In that event, the mother could also bring her own application(s).
[5] The father has filed a motion to have this court reconsider its appeal decision on the basis of new evidence arising from text messages sent by the mother to the father, suggesting that she now wishes to have the child returned to Dubai and to live with the father’s family.
[6] The father submits that these text messages belie the mother’s narrative, as reviewed in this court’s judgment, that she and the child were involuntarily trapped in Dubai for well over a year, the father having taken their passports. The father has always challenged that narrative, a challenge that is also reviewed in the reasons for judgment. The father argues that the new evidence highlights that the mother has not been telling the truth about what occurred in Dubai.
[7] The mother argues that the text messages represent nothing more than her panic over financial strain, particularly during COVID-19, her desire to have the father provide some money to support the child, and her concern that she may lose the appeal. She says that he is in breach of a prior support order. (He denies this suggestion.) She contends that the messages should not, therefore, be taken at face value. She was simply saying the things reflected in the new evidence in an effort to have the father provide much-needed financial aid and to better position herself in the event that she lost on appeal.
[8] In rare situations, this court may re-open an appeal, particularly where an order has not yet been taken out: First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, 381 D.L.R. (4th) 114, at para. 7. This rare event will only occur where “a very serious injustice” will result absent reconsideration of the matter: Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. - Canada, 2005 BCCA 111, 209 B.C.A.C. 197, at para. 6; First Elgin Mills, at para. 8. This is not one of those rare cases.
[9] The parties have been locked in a serious factual dispute from the outset of these proceedings. There seems to be little, if anything, they factually agree upon. While the new evidence may well be relevant to credibility determinations that will no doubt inform where the child should live, this court did not make credibility findings on the appeal. It was unnecessary to do so. Rather, this court’s judgment focussed upon which court should decide these issues.
[10] As this court noted at para. 76 of its reasons:
In all of the circumstances, the application judge should have given substantial weight to the Consent Custody Order when arriving at an appropriate disposition. Given the highly disparate accounts of the parties, and the clear need to resolve those accounts before ordering the child’s return to Dubai, the matter should have been returned to the Central Family Court in London, U.K. for determination.
[11] Accordingly, while the new evidence may be relevant to determining the father’s application to have the child returned to Dubai, it is irrelevant to this court’s decision that the U.K. Consent Custody Order must be respected and the father must first pursue the matter there. There is no basis upon which to reopen the appeal.
[12] As for costs, the mother asks for her costs on this motion. We grant $2,500 in costs.
[13] The parties were invited to make costs submissions following the appeal. We have reviewed those submissions.
[14] The mother asks for the costs award from the application court to be set aside. We grant that order.
[15] She also asks for $41,000 for the application, $7,461.39 for a motion to stay the judgment, $4,640.57 for a fresh evidence application, and $25,422.29 for the appeal. With disbursements and expert fees added, the mother asks for a total costs order in the amount of $86,719.
[16] The father says there should be no costs awarded for a number of reasons:
- the litigation is not over;
- the mother did not get the relief she asked for on appeal;
- the mother behaved badly in the application court;
- she behaved badly after the appeal;
- she unnecessarily complicated the litigation by advancing issues that did not need to be decided by this court;
- she brought a constitutional challenge for the first time on appeal; and
- the judgment sets out new law that could not be anticipated.
[17] Based on all of these factors, the father asks that any costs award be reserved until the question of jurisdiction is finally determined.
[18] Given the detailed history of this matter and in light of the court’s order that the father next pursue this litigation in the U.K., it is not appropriate to reserve the question of costs arising from litigation here to a court there. Accordingly, we make the following costs order against the father:
- $2,500 for the application to reopen.
- $10,000 for the appeal. While the mother was successful on appeal, the appeal involved a nuanced point of law. We also accept the father’s submission that the mother unnecessarily complicated the appeal with all manner of issues that did not need to be decided. This is most obvious in relation to the constitutional issue that was raised for the first time on appeal. We consider the fresh evidence application as part of the appeal.
- $5,000 for the application to stay the judgment pending appeal.
- $20,000 for the original application.
[19] In total, the father shall pay costs in the amount of $37,500 to the mother in addition to disbursements and H.S.T.
“P. Lauwers J.A.”
“David M. Paciocco J.A.”
“Fairburn J.A.”
