Court File and Parties

Court File No.: Toronto D57317/12 Date: 2016-06-03 Ontario Court of Justice

Between: Mahdy Sheidaei-Gandovani, Applicant (Moving Party)

— AND —

Aazam Makramati, Respondent

Before: Justice Curtis

Heard on: 30 May 2016

Endorsement released on: 3 June 2016

Counsel:

• Howard Feldman, for the Applicant
• Murray Teitel, for the Respondent

CURTIS, J.:

Index

1. Overview
2. Background
3. Litigation History
4. The Issues for Decision
5. The Law on Jurisdiction
6. Jurisdiction Analysis
7. The Consent Order of 22 February 2013
8. Orders

Overview

[1] This is the decision in contested temporary motions in the context of the father's motion to change the consent final order of Curtis, J. made 22 February 2013 regarding custody and access. The consent order contained no provision regarding custody and provided for a 50/50 time-sharing arrangement, among many other detailed provisions.

Background

[2] The mother is 42 years old (born 14 April 1973). The father is 41 years old (born 29 October 1974). They were married on 24 October 2008 and separated in July 2009. The parents are involved in high conflict, long-standing, very acrimonious litigation regarding custody of and access to their son Diako (born 23 June 2008, now almost 8 years old).

Litigation History

[3] The parents signed an agreement in November 2010 for joint custody with an equal time-sharing arrangement. Both parents were represented by lawyers in the litigation. On 27 September 2012, on a contested motion, Jones, J. made a temporary order for joint custody with an equal time-sharing arrangement. The original hotly contested litigation, involving many court appearances and the involvement of and an investigation by the Children's Aid Society of Toronto ("C.A.S."), was ended with the consent final order of 22 February 2013.

[4] The consent final order of 22 February 2013 carved off certain areas of authority for each of the parents. The areas that are relevant to this motion are these: the father had decision-making authority regarding medical, health care, and the enrollment of the child in a European or American football school. If the child was enrolled, the father agreed to pay for the mother's expenses (such as air ticket, lodging and food) to allow her to live where the child was in school, for the duration of the course.

[5] Following the final order of 22 February 2013, there continued to be conflict between the parents and the acrimonious litigation continued.

[6] In September 2015 the child was enrolled in a prestigious football school in Barcelona, Spain (FC Barcelona), and the parents moved with him to Barcelona. The parents and the child returned to Ontario for a visit on 20 December 2015. During the visit the mother told the father that she was refusing to return to Spain and would not allow the child to return to Spain. On 6 January 2016 the father brought an emergency motion in Ontario and on 7 January 2016, the court ordered the following (among other orders):

(a) The father may travel with the child to Barcelona;

(b) The mother shall release the child to the father;

(c) Police with jurisdiction shall enforce the order;

(d) In Barcelona the mother shall live in a separate apartment building from the father;

(e) There shall be no contact between the parents other than by e-mail or text and only regarding the child;

(f) The order was binding and enforceable on the parents in Spain; and,

(g) All clauses of the final order of 22 February 2013 continue to be in force.

The court expressed serious concern about the level of conflict between the parents and noted that C.A.S. would be notified by the court, if the child were to remain in Ontario. The case was adjourned until July 2016 with a timetable for the parents to serve and file their material.

[7] On 19 January 2016, in Ontario, the father issued a motion to change the final order of 22 February 2013 seeking (among other things) sole custody, no access or supervised daytime access, and a restraining order.

[8] The parents and Diako returned to Spain in January 2016. There continued to be conflict and acrimony between the parents in Spain. On 13 February 2016 the mother disappeared in Spain with the child. She went to live in a shelter in Barcelona and kept the child away from the father for 40 days. She also kept the child out of school, out of football school, and perhaps most importantly, did not administer medicine the child required for juvenile rheumatoid arthritis (regular injections of enbril, a fragile and very expensive medication which must be properly cared for and refrigerated).

[9] The father started a court case in Spain on 22 February 2016 (#13/2016) seeking sole custody, supervised access and a psychiatric examination of the mother. On 14 March 2016 the court in Barcelona dismissed the father's application, ordered that the 50/50 time-share from the final order of 22 February 2013 should continue, and set an exchange location. The court also made an order that neither parent could remove Diako from Spain.

[10] The father brought an urgent motion without notice in Ontario on 23 March 2016 for (among other things) sole custody, the immediate return of the child to him, and no access or supervised day-time access to the mother. The motion was not served on the mother as the father did not know where she was nor where the child was. During that court appearance on 23 March 2016, the court learned that the mother had turned the child over to the father in Barcelona that day, with the assistance of the police. The court required that the Ontario motion be served on the mother, as the allegations and the relief claimed were serious. The court made very detailed orders for substituted service on the mother to four different sources. Again, the court expressed deep concern about the impact of the high level of conflict on the child. The motion was adjourned for service to 20 April 2016, on terms:

(a) The order of 22 February 2016 was changed on a temporary without prejudice basis;

(b) The 50/50 schedule was suspended;

(c) The mother was to have no access to and no contact with the child; and,

(d) All other clauses of the final order of 22 February 2013 remained in full force and effect.

[11] The father started another court case in Spain on 11 April 2016 (#25/2016) seeking sole custody. On 27 April 2016 the Spanish court dismissed this claim.

[12] In Ontario, the father's motion returned to court on 20 April 2016. Both parents were represented by lawyers. Although the court already had a significant amount of material both parents had additional materials they wanted to file (19 additional affidavits). The court made orders setting out a timetable for the material to be filed. Again, the court expressed deep concern about the impact of the high level of conflict on the child, and about what was going on. The motion was adjourned to 30 May 2016 to be argued, on terms:

(a) The orders of 22 February 2013 and 23 March 2016 were changed on a temporary without prejudice basis;

(b) The 50/50 schedule in the order of 22 February 2013 was suspended until further court order;

(c) The mother was to have supervised access to the child two times per week for two hours, to be supervised by a psychologist or social worker recommended by Natalie Lopez Balcells, or by a professional agreed by the parents, starting 22 April 2016;

(d) Ms. Balcells was not to be the supervisor;

(e) The father would pay any fees related to the mother's supervised access;

(f) The supervising professional would not produce a report about the access, unless the court orders; and,

(g) At supervised access the mother and the child were to speak only English and not Farsi.

[13] At this court date the court raised the issue of jurisdiction and asked the lawyers to prepare argument on jurisdiction on the return of the motion.

[14] The mother declined to exercise supervised access to the child in Spain.

[15] The mother started a court case in Spain (#33/2016) in April 2016 to enforce the Spanish order of 14 March 2016. On 25 April 2016 the Spanish court ordered the parents to abide by the Spanish court order of 14 March 2016 for a 50/50 time share. This case is still on-going in Spain.

[16] The consent final order made 22 February 2013 could have contained a clause identifying Ontario as the continuing jurisdiction for custody and access. The order contemplated that the child and the parents would move to wherever the child was in school for football training. The order was silent on jurisdiction. Absent specific reference to jurisdiction in the consent order, the court cannot assume that the parties intended Ontario to continue to be the jurisdiction to decide custody and access, particularly as the ambit of possible countries they could move to for football school (Europe and America) was quite large, and there were no restrictions on the length of the programs.

[17] Both lawyers argued that the other parent had no standing to seek orders of the Ontario court as the other parent was in breach of court orders. The father says that the mother disappeared with Diako for 40 days in Spain. The mother says that the father refuses to comply with two Spanish court orders upholding the 50/50 time sharing arrangement, and is in breach of certain provisions of the final consent order of 22 February 2013 (regarding payment of her expenses in Spain, and not exposing the child to adult or sexual material). In fact, it is likely that both parents were in breach of court orders. Neither came to court with clean hands. Notwithstanding this, the court allowed the issues to be argued on the merits.

The Issues for Decision

[18] The final order of 22 February 2013 is not working for Diako, and is no longer in Diako's best interests, if, indeed, it ever was. It is time for a determination on the merits of what current order would be in his best interests. The first issue for determination is: in what jurisdiction should this decision take place?

[19] The issue on these motions are these:

a) Does Ontario have jurisdiction regarding custody of and access to Diako?

b) If Ontario has jurisdiction, should the court in Ontario exercise that jurisdiction?

c) If the court has no jurisdiction or declines jurisdiction, should the court in Ontario make any temporary orders?

d) What orders regarding custody of and access to the child are in his best interests, no matter what the outcome of the jurisdiction question?

The Law on Jurisdiction

[20] The sections of the Children's Law Reform Act ("C.L.R.A."), R.S.O. 1990, c. C.12, as amended, under consideration in these motions are these: 22, 23, 25, and 40.

Jurisdiction

22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).

Habitual residence

22. (2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where 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; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2).

Abduction

22. (3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

Serious harm to child

23. 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. R.S.O. 1990, c. C.12, s. 23.

Declining jurisdiction

25. A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. R.S.O. 1990, c. C.12, s. 25.

Interim powers of court

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. R.S.O. 1990, c. C.12, s. 40.

[21] An Ontario court can exercise jurisdiction to make an order for custody of and access to a child as follows:

a) Under s. 22(1)(a) C.L.R.A. an Ontario court can make an order for custody of a child who is habitually resident in Ontario;

b) Under s. 22(1)(b) C.L.R.A., where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and all other requirements of the section are met; and,

c) Under s. 23 C.L.R.A., a court has jurisdiction to make an order for custody where a child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out.

[22] Habitual residence is not defined by physical presence. It is a question of fact to be decided based on all of the circumstances. The habitual residence is the place where the person resides for an appreciable period of time with a settled intention. A settled intention or purpose is an intent to stay in a place, whether temporarily or permanently, for a particular purpose, such as employment, family, etc: Korutowska-Wooff v. Wooff, [2004] O.J. 3256 (Ont. C.A.), para. 8.

[23] Habitual residence can include short or temporary stays: Sanders v. Aerts, 2014 ONCJ 20, 2014 CarswellOnt 406, [2014] W.D.F.L. 1061, [2014] O.J. No. 187, 236 A.C.W.S. (3d) 949, 42 R.F.L. (7th) 477 (Ont. Ct.), para 25.; H.(A.) v. H.(F.S.), 2013 ONSC 1308 (Ont. Sup Ct.), para. 57.

Jurisdiction Analysis

[24] The parents agreed in February 2013 that the father could chose a football school for Diako, in Europe or America, and he chose Spain. The child had to apply for and be accepted at the school. There is a wait list of 1,500 students at the school. The purpose of the move to Spain was clear and unambiguous: the parents and the child all moved to Barcelona so Diako could attend this prestigious football school.

[25] Diako was not habitually resident in Ontario in January 2016 when the father started the motion to change in Ontario. The parents had moved to Barcelona several months earlier and the child was enrolled in and attending the football school there. The intention of the parents was to remain in Spain in order for Diako to attend this football school. The trip to Ontario in December 2015 was a short trip for a vacation. The parents chose Spain, and were planning to stay there. The Ontario court cannot exercise jurisdiction to make a custody and access order regarding Diako under C.L.R.A. s. 22(1)(a).

[26] The court recognizes that it is arguable whether or not Diako was habitually resident in Ontario in January 2016. He was physically present in Ontario, and he had only then been living in Spain for about four months. The court should then examine the other jurisdiction provisions of the C.L.R.A.

[27] Diako and the parents have now been living in Spain since September 2015 (eight months). The passage of time has served to enhance Diako's status as habitually resident in Spain. Even if Diako was found to be habitually resident in Ontario in January 2016, he was not habitually resident in Ontario in March 2016, or April 2016 or May 2016, when these matters came before the court again.

[28] If a child is found to not be habitually resident in Ontario, the court can still consider exercising jurisdiction if the test set out in C.L.R.A. s. 22(1)(b) is met. There are six criteria that must be satisfied, and all criteria must be satisfied. Here is the relevant evidence regarding some of those criteria:

a) Diako was physically present in Ontario at the start of the father's motion to change in January 2016 (s. 22(1)(b)(i));

b) Although some evidence concerning the child's best interests is available in Ontario, it would not be accurate to say that substantial evidence regarding his best interests is available in Ontario. In fact, substantial evidence regarding his best interests is available in Spain (s. 22(1)(b)(ii));

c) There is an application regarding custody of or access to Diako that is pending in Spain. The fact that it may have been brought under legislation that could be considered child protection legislation does not alter this finding: the father has twice specifically asked for custody in the Spanish litigation (s. 22(1)(b)(iii)); and,

d) The father cannot succeed on the balance of convenience test. There is no question that the balance of convenience favours Spain as the proper jurisdiction (s. 22(1)(b)(vi)).

[29] The father cannot invoke the jurisdiction of the Spanish court (twice) and then decide that if that result does not suit him, that he prefers to invoke the jurisdiction of the Ontario court.

[30] The father's claim for Ontario to exercise jurisdiction under s. 22(1)(b) C.L.R.A. cannot meet the necessary tests (specifically, he cannot meet the tests under ss. 22(1)(b)(i), (ii), (iii), and (vi)).

[31] The father also argues that the court can exercise jurisdiction under C.L.R.A. s. 23. The child must be physically present in Ontario under this section. This section does not state (like s. 22(1)(a) C.L.R.A.) that the physically present test is met if the child is physically present in Ontario at the time the application is started. However, the test under s. 23 is serious harm, a high threshold for the court in this determination. While serious harm to Diako has been alleged by the mother, it is denied by the father, and the Spanish court is in a better position to make this determination. The court does not have jurisdiction under s. 23 C.L.R.A.

[32] Even if Diako was found to be habitually resident in Ontario in January 2016 and that the court then has jurisdiction to make a custody and access order (which is arguable), the court still has the discretion to decline to do so under s. 25 C.L.R.A., "where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside of Ontario". This wording grants the court a broad and nearly unrestricted level of discretion. The finding that Diako was not habitually resident in Ontario in January 2016 is a factor in determining whether or not to decline jurisdiction.

[33] On the evidence presented it is more appropriate for custody jurisdiction to be exercised in Spain, for these reasons:

a) The events that are the subject of the current Ontario litigation all happened in Spain;

b) A large number of witnesses and some professionals who would be witnesses are available in Spain;

c) Documentary evidence which may be relevant (e.g., medical records, police records, litigation records) are in Spain and in the Catalan language;

d) There have been three court cases started in Spain regarding custody of Diako, all started since 22 February 2016;

e) The father (the parent who seeks to have Ontario now exercise jurisdiction over Diako) started two court cases in Spain in 2016 (#13/2016 started on 22 February 2016, and #25/2016 started on 11 April 2016,) both seeking custody of Diako;

f) There is still a live court case in Spain about custody of Diako (#33/2016);

g) Diako is registered at the FB Barcelona school for the next school year in September 2016;

h) The parties and Diako are prohibited by court order from leaving Spain;

i) Ontario court orders are of no force and effect in Spain;

j) While physically present in Ontario at the start of the court case in January 2016, Spain is now Diako's habitual residence; and,

k) Due to the distances involved and the language issues, the court in Ontario cannot respond to Diako's needs in the Ontario litigation in a timely manner.

[34] As a result of the determinations regarding jurisdiction, it is unnecessary to deal with the arguments put forward about issue estoppel, res judicata and abuse of process.

[35] The court has very broad powers under s. 40 C.L.R.A. Even if the court finds that Ontario has no jurisdiction under s. 22 C.L.R.A., or that it has jurisdiction, but should decline jurisdiction under s. 25 C.L.R.A., the court may make a temporary order regarding custody and access that is in the child's best interests, may stay the Ontario application, and may make the stay order subject to conditions (s. 40 C.L.R.A.).

[36] It is not in Diako's interests for there to be litigation about him in two different countries. The Ontario motion to change regarding custody of and access to Diako is stayed under C.L.R.A. s. 40.

[37] It is important for a court that has all the evidence available to determine what order is now in Diako's best interests. While it is very tempting for the Ontario court to try to determine what current temporary arrangement would best meet Diako's needs, and to make a different temporary order under s. 40 C.L.R.A., that approach is inconsistent with the finding that Ontario ought not to exercise jurisdiction under s. 25 C.L.R.A., even if Ontario has jurisdiction. In the interim, the best solution consistent with Diako's interests is a return to the consent final order of 22 February 2013, which the parties crafted themselves, under which arrangement they have lived for more than three years now, and which the Spanish court has now twice ordered them to abide by.

The Consent Order of 22 February 2013

[38] It is likely that the original final order of 22 February 2013 and the subsequent Ontario litigation will be examined by the court in Spain, or by the court in another jurisdiction. As a result, that court may benefit from some information about context. The consent final order made on 22 February 2013 resulted from the agreement of the parents and was made into a court order at the request of the parents. No trial was held on these issues. No evidence was presented to the court in support of the request for this order. No evidence was tested by cross-examination. No investigation about this order was done. There was no real determination of these issues on the merits. Instead, the parties agreed to an arrangement, asked the court to make an order, and the court did so.

[39] The two orders made on 23 March 2016 and 20 April 2016 are set aside. In Ontario, the valid and subsisting order regarding Diako is the consent final order made 22 February 2013, as amended only by the temporary order made 7 January 2016 (regarding his return to Spain).

[40] A return to the final order of 22 February 2013 is not a fresh determination on the merits for this child of what is currently in his best interests. Although that option is available to the court under C.L.R.A. s. 40, the court specifically declines to do so. To make a determination on the merits at this point, even a temporary order under s. 40, is inconsistent with the decision under s. 25 C.L.R.A. to decline to exercise jurisdiction in this matter.

[41] A return to the final order of 22 February 2013 is, instead, a holding order, an effort to have a regime in place in (albeit an imperfect regime) sufficiently to allow the parents to complete the litigation process in Spain.

[42] The final order of 22 February 2013 is no longer in Diako's best interests, if, indeed, it ever was. Given the high level of conflict between the parents exhibited in the original litigation, the terms of this order were optimistic, to say the least. The order of 22 February 2013 is not working for Diako. The fact that this court declined to exercise jurisdiction, stayed the current motion to change before the court, and reverted to the consent final order of 22 February 2013 should not be interpreted as either a current determination on the merits, nor as an endorsement of the order of 22 February 2013. It is neither.

Orders

[43] Even if the court in Ontario has jurisdiction regarding custody of or access to Diako under s. 22(1)(a), C.L.R.A., the Ontario court declines to exercise jurisdiction under s. 25 C.L.R.A.

[44] Under s. 40 C.L.R.A., the Ontario motion to change brought by the father in January 2016 is stayed.

[45] Under s. 40 C.L.R.A. the orders of 23 March 2016 and 20 April 2016 are set aside.

[46] Under s. 40 C.L.R.A., the consent final order made 22 February 2013, as amended only by the order made 7 January 2016 (regarding Diako's return to Spain) continues to be in full force and effect.

Released: 2016-06-03

Justice Carole Curtis