Court File and Parties

Ontario Court of Justice

Date: March 2, 2017

Court File No.: Brampton, 1033-16

Between:

MHD Khaled Daji Applicant

— And —

Nada Alnaser Respondent

Before: Justice Philip J. Clay

Motion Heard on: February 28, 2017

Reasons for Judgment Released on: March 2, 2017

Counsel:

• Mr. M. Zafar — counsel for the applicant
• Mr. M. Stangarone and Mr. S. Kirby — counsel for the respondent

CLAY J.:

MOTION

PROCEDURAL BACKGROUND

[1] On August 16, 2016 the applicant father ("father") brought the parties' daughter Julia Daji born August 6, 2014, to Canada. On October 13 he brought an application in this court seeking custody of the said child. The respondent mother ("mother") brought a custody application in the United Arab Emirates (U.A.E.) the same day. On January 9, 2017 the mother obtained an order in the U.A.E. providing her with custody of the said child and ordering that the said child be returned to the U.A.E. immediately. The father stated that he appealed that decision.

[2] The mother brought an urgent motion in this court in which she sought an order to return Julia to her on the basis that this court had no jurisdiction to determine the custody of the said child as the child had been abducted from the U.A.E. by the father.

[3] By my order of January 23, 2017 I recognized that the jurisdictional issue had to be addressed as soon as possible. I set out my availability to hear the motion in court at that time and counsel were to advise on the date chosen. By my order of January 31, I confirmed February 28 for a 2 hour motion. Counsel agreed to time lines for delivery of further material.

[4] The parties filed 5 volumes of affidavit material. They provided factums and books of authorities. Between the time that the motion was scheduled and when it was heard the father changed counsel and tried to obtain an adjournment of the motion. The adjournment was denied. The motion was argued on February 28.

[5] At the end of the motion I advised counsel that my decision was that this court did not have jurisdiction to decide custody in this matter. I stated in a brief handwritten endorsement that the parties were bound by the order made in the U.A.E. as that court did have jurisdiction. I further stated that I would reserve my reasons for decision and deliver them as soon as possible. Finally, I adjourned the motion to March 13 at 2:00 p.m. to determine if the father had provided all of Julia's legal documents to the mother's counsel and to allow mother's counsel to make submissions on costs. I set deadlines for the submissions and response submissions.

SUMMARY OF THE EVIDENCE

[6] The parties were both born in Aleppo Syria and are Syrian citizens. The mother has resided in the U.A.E. her entire life on a series of visas. The father has lived and worked in the U.A.E. for at least ten years. The parties stated that they could not become citizens of the U.A.E. but that their visas could be renewed.

[7] The parties married in the U.A.E. on July 5, 2013. Julia was born on August 6, 2014. On July 7, 2015 the parties and the child immigrated to Canada. They became landed immigrants and obtained permanent residency cards. On or about September 12 the parties returned to the U.A.E. The mother left with the child first and the father followed two weeks later. The mother said that the parties had decided to return home indefinitely. The father said that they just went back to get their affairs in order by dealing with his employment, selling their home etc.

[8] On March 1, 2016 the father moved from Dubai to Ras al Khaimah and signed a one year lease on a home there. The home was fully furnished and the parties moved into the home and lived there together until August 2016. The mother said that there were difficulties in the marriage. She claimed that the father was controlling and emotionally abusive. She said she was the primary caregiver of the child and the father worked long hours and was often away from the home for days at a time. The father denied any abuse by him. He said that he was the primary caregiver. He alleged that the mother had a serious anger management problem and that she physically disciplined the infant child. The father did not make any allegations against the mother while the parties lived together in the U.A.E. The allegations were only made after he brought the child to Canada. By way of contrast the mother did try to address what she saw as the power imbalance in the marriage and she went to a court in the U.A.E. to seek assistance. She served the father with notice of her application to the U.A.E. court on August 2.

[9] The critical date for the determination of this matter is August 15, 2016. The mother said she left the child with the father for the first time as she went to run errands. When she returned to the family home the father and the child were not there. When they did not return by the evening she repeatedly called the father's phone but he did not answer. She said she was very worried. Finally, beginning at 11:50 p.m. that evening she received three texts from the father. He stated that he was with the child at his mother's home in Dubai and the child had fallen asleep. The last text was at 11:57 p.m.

[10] The next day the child had a speech therapy appointment at 7:00 p.m. The mother said she did not hear from the father but she assumed that he would bring the child to the appointment. When he did not do so she panicked. She called the father but the call did not go through. She called her mother-in-law and was told that the father had not brought Julia to her home the previous evening. She went to the local police station. While there she received a call from an unknown number in which the father stated that he and Julia were outside the U.A.E. and that he was applying for refugee status in Europe. She said she was shocked by this news. With the assistance of the police and the Al Ain court she was able to determine that the father and child had left on a direct flight from Dubai to Toronto at 12:38 a.m. on August 16 which was just 40 minutes after the father had sent her a text saying that he and the child were at his mother's.

[11] The father stated that the flight information was inaccurate. He did not produce his tickets to disprove it. Ultimately, in argument his counsel did not dispute that the father left the home in the circumstances described by the mother. The father took a diaper bag for the child but did not take any of her clothes or belongings. Notwithstanding this, the father maintained the position that the mother was fully aware that he would be traveling to Canada. He said that the parties always intended to return as they had residency status in Canada. He alleged that the mother only changed her mind about returning on or about August 22 after her family talked her out of leaving the U.A.E. The father had no explanation for the hurried method of departure, the false messages about being at his mother's, the alleged European refugee plan or why he hid the mother's passport and travel documents.

[12] The mother sent texts to the father on August 17, 18 and 19 asking about Julia and her desire to see her and have her returned home. Without the mother's knowledge the father taped phone calls with the mother beginning on August 18. In those calls he asked the mother to admit that she repeatedly physically beat their two year old child. He also questioned her about joining him in Canada and referenced the type of apartment they would live in together. On August 19 the father sent the mother two videos he had made of two year old Julia being asked by the father to demonstrate how the mother hit and hurt her. The father asked the court to accept the child's coached gestures and the mother's emotional responses to these suggestive questions as evidence that he had her consent to the move back to Canada and as evidence that she admitted to physically abusing their child. The father alleged that the mother has a serious anger management problem that made it dangerous for her to be alone with the child. At the same time he told her that he wanted to reconcile and spoke about living together as a family in Canada.

[13] The mother tried to get information from the father's family and was told by his brother that the father would be returning to the U.A.E. at the end of September. Her passport and permanent resident card were returned to her by the father's mother about six days after the father left. On August 28 the father finally e-mailed the mother with the address where he was living with the child.

[14] The father filed affidavits to demonstrate that the child's needs were being met in Canada. She would be receiving speech therapy, she was in daycare and he had a support network amongst the Syrian Canadian community. He brought his application for custody in this court on October 13, 2016. He served the mother in the U.A.E. on October 16, 2016. That same day the mother issued her application in the court in the U.A.E. The mother said she did not issue earlier as she had been duped by the father's brother into believing that the father would return at the end of September or early October. The father continued to pay the lease on the residence where they had both lived and she had continued to reside there. In the period from August 16 to October 16 she had consulted widely as to what she could do about the situation and she had been looking for a lawyer. When she was served she knew that the father would not voluntarily return and she instructed her counsel to issue her divorce and custody application. The father stated that the mother had not shown any intention of taking any legal steps until he brought his application in Ontario and that the mother's application the same day was simply a reflexive, vindictive step. The father terminated the lease on the home where the mother was still living on October 26.

[15] The father retained counsel in the U.A.E. and opposed the mother's application. He was granted six adjournments in that application in a relatively short period of time. He told the U.A.E. court that he wanted to attend at the hearing in Dubai on December 26. He said he had purchased tickets on November 29, 2016 to fly to Dubai. He did not attend and as noted above the matter was adjourned to January 9, 2017 at which time a final order was granted. At this hearing Mr. Zafar said that the father could not fly to Dubai as both his passport and Julia's had been lost or stolen. This had never been stated in all of the affidavits filed in this proceeding. In my order of February 14 I denied the father's request for an adjournment and denied the mother's request that the father and child's passports be deposited with the court prior to the hearing of this motion. I ordered that the father should bring Julia's passport to the hearing. It was at that time that he stated for the first time that the passports were missing. I permitted Mr. Zafar to produce a Peel Regional Police report to support his argument that the loss had been reported. The report stated that on November 29 the father reported that both passports were lost on September 2, 2016. The matter was noted to be "solved non-criminal". Mr. Stangarone noted that the father's ticket to Syria was purchased on November 29 the same day that the father reported to the police that the passports had been lost since September 2.

[16] The father also stated in his affidavit material that the child could not be returned to the U.A.E. because she had no permanent status there. He said that a person not born in the U.A.E. could not obtain permanent residence or citizenship but could only stay there if on a valid visa. He said that the mother's visa would expire on June 29, 2017. He said a person could only get a visa if they were employed or if they were married to, or dependent upon, an employed person. He said in effect that the mother was only allowed to live in the U.A.E. because he was working there. If she could not get a visa then the child could not stay there with her. To his credit Mr. Stangarone was able to respond quickly to this issue first raised in the father's February 16 affidavit. He was permitted to file an affidavit from his law clerk dated February 27 which attached a translation of an order from the Judicial Department to the Department of Naturalization and Residence which stated that the mother was permitted to cancel her current visa and obtain a new one under the name of a new sponsor without obtaining the consent of the father.

THE LAW

[17] The International Convention on the Civil Aspects of International Child Abduction ("The Hague Convention") does not apply to this matter as the U.A.E. is not a signatory. The relevant legislation governing this matter is found in Part III of the Children's Law Reform Act ("CLRA") sections 19, 22, 23, 40 and 41 read as follows:

Purpose

19. The purposes of this Part are,

(a) 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;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario. R.S.O. 1990, c. C.12, s. 19.

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

(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).

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.

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.

Enforcement of Extra-Provincial Orders

41. (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. R.S.O. 1990, c. C.12, s. 41 (1).

Effect of Recognition of Order

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such. R.S.O. 1990, c. C.12, s. 41 (2).

Conflicting Orders

(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. R.S.O. 1990, c. C.12, s. 41 (3).

Further Orders

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order. R.S.O. 1990, c. C.12, s. 41 (4).

[18] Counsel filed very comprehensive Books of Authorities that addressed all of the issues that might arise in this matter. I shall briefly note some of the cases referred to.

[19] Mr. Stangarone referred to Balev v. Baggott, 2016 ONCA 680 for the proposition that the habitual residence of a child is in the state where both parties lived together with the child and neither party can unilaterally change the habitual residence without the express or implied consent of the other parent.

[20] Mr. Stangarone directed the court to the decision of the Ontario Court of Appeal in Ellis v. Wentzell-Ellis, 2010 ONCA 347. In that case the court found that in determining the child's habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis. This was a case decided under the Hague Convention but Mr. Stangarone argued that the principle applies in non-Hague cases as well. In Hibbert v. Escano, 2010 ONSC 1445 at para 21 Justice Spies concluded that unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction.

[21] A case that is somewhat relevant on the facts is that of Maharaj v. Maharajh, 2011 ONSC 525. In that case, as here, the parties did at one time have a joint intention to move to Canada. The court found though that at the time that the removing parent actually brought the child to Ontario the other parent no longer shared that intention. In Proia v. Proia, 2003 CarswellALTA 948 (Q.B.) at paras. 9-33 the Court held that the parties must jointly abandon their habitual residence to create a new habitual residence for the child. Mr. Stangarone referred to some of the indicia of abandonment as set out in Proia. In the case before me there was no movement of personal possessions to Canada and in fact the father left a fully furnished home which he had leased for a year and took a flight in the middle of the night with minimal baggage.

[22] Mr. Stangarone argued that on the facts of this matter there was no delay in the mother asserting that the child was unlawfully removed. Out of an abundance of caution he provided the court with the decision in Ibrahim v. Girgis, 2008 ONCA 23 and referred to paras. 25-26 in which Justice MacPherson stated that one cannot infer acquiescence solely from alleged delay. Such delay cannot constitute clear and cogent evidence of conduct which is inconsistent with the summary return of the child to the habitual residence. In the case before me the father had no evidence of actual consent to the move so he argued that the failure of the mother to begin proceedings in the U.A.E. prior to his bringing proceedings in Ontario was evidence of her implied consent to the move. In Ibrahim the court noted that there may be many reasons for delay including an attempt at reconciliation or an effort to try to settle the issue out of court.

[23] With respect to s. 22 1 (b) Mr. Stangarone relied upon Dovigi v. Razi, 2012 ONCA 361 para 18. The Court of Appeal made it clear that it is only the court with jurisdiction that can decide the best interests of a child. In that case the court found that even where a child has a stable and secure life in Ontario residing with one parent, as arguably Julia does in this case, a child is not "habitually resident" here unless the child's residence is in accordance with a separation agreement, consent or court order. All of the criteria in s. 22 (1) (b) must be met as there is no residual discretion for the court to assume jurisdiction if the statutory test is not made out.

[24] With respect to s. 23 the court can override a habitual residence finding if it finds a probability of serious harm if the child is returned. There is no definition of "serious harm" in the legislation. However, in Thomson v. Thomson, 1994 CarswellMan 91 (S.C.C.) the Supreme Court of Canada stated at p. 186 that the serious harm test is not significantly different from the high legal test of "grave risk of harm" set out in the Hague Convention. Mr. Zafar relied upon Iskhani v. Abubakr Al-Saggaf, 2007 ONCA 539. In that case the Court of Appeal upheld a decision in which a court on appeal from a motions judge's decision had refused to send a child back to Dubai due to the probability of serious harm. The evidence there was that the father back in Dubai had a history of alcoholism and serious physical and emotional abuse of the wife. He had stated that he was justified in using immediate physical force to stem invasions of his privacy and to rebuke verbal assaults. The court had also found him to be dominant and controlling. The only common point between the facts in Iskhani and the facts in the instant case is that the jurisdiction from where the child was taken was the U.A.E. The facts in Iskhani case met the probability test. In the case before me there was no evidence of any physical abuse of the child before the father brought her to Canada.

ISSUES

(1) Where was the child habitually resident at the time that she arrived in Ontario on August 16, 2016?

(2) If the child was not habitually resident in Ontario at the said time do all of the s. 22 (b) factors apply such that this court should accept jurisdiction?

(3) If the child is not habitually resident in Ontario at the said time should this court exercise its jurisdiction to make an order of custody in order to prevent serious harm to the child if the child is returned to the country in which she was habitually resident?

ANALYSIS

Where is the Habitual Residence of the Child?

[25] With certain exceptions as set out in s. 22 (1) (b) and s. 23 this court can only assume jurisdiction with respect to a custody application if the child is habitually resident in Ontario. The onus is on the father as applicant to establish this. He argued that the child is a permanent resident of Canada and lived in Ontario from July 15 to September 12, 2015. He stated that the parties only returned to the U.A.E. to put their financial affairs in order and that the common intention of both parents was to return to Ontario to reside. He asserted that once the child moved to Ontario and obtained permanent residency status here that she became habitually resident in Ontario and that she did not abandon lose that habitual residence status during what the father asserted was a transitional period in the U.A.E. He also argued that the common intention to return to Ontario meant that his travel with the child on August 16 was effectively consented to by the mother notwithstanding all of the evidence of his false statements and the rushed midnight flight.

[26] The mother said that the child was habitually resident in the U.A.E. because at the time the father left with the child both parties and the child were residing in the U.A.E. The mother stated that in 2015 the parties did decide to immigrate to Canada. She stated that after less than two months they decided to return to the U.A.E. on a permanent basis. She argued that all of the objective evidence supported her position. The father was still employed in the U.A.E., the father rented a home on a one year lease and there were no joint plan for the parties to leave the U.A.E. She noted that when the father left he left behind a fully furnished apartment and he did not even take the child's clothes or other belongings. There was no evidence other than the father's statements that the mother ever planned to move back to Canada with the child.

[27] I find that the father's position is untenable. There were no joint steps taken towards a move to Canada. All of the evidence was to the effect that the family had settled into a new home in the U.A.E. The mother had lived in the U.A.E. for all of her life and all of her family lived there. The father had lived there at least ten years and his mother and brother lived there. If they were simply settling their affairs before returning to Canada the father would not have signed a one year lease on a home (even if it could be broken on 60 days' notice). There was nothing that occurred before August 2, 2016 that suggested that either of them planned to leave the U.A.E. much less that they had a joint intention to do so. On August 2 the father was served with a notice from a family court. The mother stated that on August 15 she left the child with the father for the first time ever. That night he left with the child. It is unnecessary to repeat the circumstances of his departure. Suffice it to say that they have all of the hallmarks of a child abduction.

[28] I find that the habitual residence of both parties and the child was the U.A.E. on August 16, 2016 when the father abducted the child and brought her to Ontario.

Should This Court Accept Jurisdiction Even if the Child is Not Habitually Resident Here?

[29] Mr. Zafar placed some emphasis on s. 22(1) (b) of the CLRA. The child was in Ontario when the application was commenced. There was evidence concerning the child in Ontario but it is all evidence that arose after the child was brought here. There was no evidence prior to that other than the fact that when she was just a year old Julia lived with her parents in Ontario for 2 months. All of the evidence about this child, prior to the time of her arrival in Ontario in August 2016, was in the U.A.E. where she had lived with both parents for almost all of her life.

[30] I find that the s. 22 (1)(b) argument completely founders when 22 (1) b) iii) is considered. The father left the U.A.E. with the child at the first opportunity after he received notice that the mother had gone to a court in that jurisdiction. The actual application for custody in the U.A.E. was issued on the same day that the application before this court was issued. The U.A.E. divorce and custody case were pending at the time that this application was being organized for a hearing. Prior to this motion being heard the court in the jurisdiction where I have found the child to be habitually resident issued a final divorce and custody order. The father chose to participate in those proceedings but he failed to respect the court's decision. He has not complied with the January 9, 2017 order of the U.A.E court.

[31] The balance of the s. 22 considerations are irrelevant as all sub-sections must be met before this court can accept jurisdiction. I note however that the child had no real and substantial connection to Ontario prior to arriving here on August 16, 2016 and the balance of convenience in this matter does not favour an Ontario court accepting jurisdiction.

Should the Court Accept Jurisdiction to Prevent Serious Harm to the Child?

[32] The father stated that the mother had a terrible anger management problem and that this had resulted in her striking the child on repeated occasions. He asserted that in the U.A.E. it was not illegal to hit children in the home. He alleged that there was no protection for children in the U.A.E. as there is in Ontario. He said that if the child is returned to the U.A.E. that the mother will beat her and that there is no law or governmental authority that will be able to do anything. He said that the child will suffer serious physical harm if she is returned to the care of the mother.

[33] The mother denied any corporal punishment. There was no evidence of any physical abuse of the child while she was living in the U.A.E. I accept the mother's evidence that she was the child's primary caregiver. The evidence was that the mother cared for the infant child while the father worked outside the home. The mother said that the only time the child was ever alone with the child was the day that the father abducted her and brought her to Ontario. The parties lived in the same home until the father left. There was no evidence that the father had ever complained to anyone that the mother was beating the child. The mother stated that there is a child protection system in the U.A.E. called the Centre for Social Support which had a similar mandate to the children's aid societies in Ontario. She said that the family had never been involved with them. With respect to U.A.E. law concerning the rights of children both parties had filed documents. The father had filed a copy of legislation as annotated by a private lawyer in the U.A.E. I do not consider that to be evidence as it is effectively the opinion of a practitioner, who is not qualified as an expert and has not published in recognized legal journals (or at least there was no evidence that he had). It was one lawyer's view as to what the law means and such opinion evidence is not admissible. For different reasons I declined to review the statements of the "Wadeema" regarding children's rights in the U.A.E. as submitted by the mother in response to the father's arguments. I simply had no admissible evidence that supported the father's position that if the child was being beaten nothing would be done in the U.A.E.

[34] The only evidence that the father tenders to support his argument of the probability of serious harm is the evidence of the surreptitiously taped phone calls and the coached videos of the child. There is strong public policy against admitting taped phone calls in family law cases. I find that there is no necessity to accept such evidence in this case. Even if I am wrong and the transcripts should be considered as evidence I do not find the contents to be helpful to the father's position. The father has taped the calls for the sole purpose of trying to induce the mother into making an admission that she beat or hurt the child. The mother is emotionally desperate at this point in time. Her child was taken to Canada. She has no contact with her. Her sole focus is on seeing her daughter and getting her back. Even if she did promise not to beat the child anymore it was only after repeated insistence by the father that she make such a promise. If she had never hit her child before it would not be difficult for her to commit to never doing it again especially if making such a statement held out the promise of contact with her child.

[35] The father's action in creating and then submitting these phone call transcripts and videos is very telling. He claims not to have abducted the child but he knows that the circumstances of her travel points to abduction. Within a few days after arriving in Ontario, and before telling the mother where her daughter is living, he started to work on building a defense to his actions. He purposely tried to manipulate the mother to create evidence that he thought he could use to argue that there would be a probability of serious harm to the child if she was returned. He knew that he had no such evidence before he made those taped calls. The transcripts show that he is determined to obtain an admission from the mother. The videos, which were described in the parties' affidavits, show clear evidence of manipulation of this young child. This father removed his 2 year old daughter from her mother's primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child. I find that the father's actions in manipulating both the mother and the child to be unconscionable and deserving of censure from this court.

SUMMARY

[36] I find that the father has not discharged the onus upon him to prove that this court either has jurisdiction to address a custody application or should assume jurisdiction to do so. I find that the child was habitually resident in the U.A.E. at the time of her abduction and arrival in Ontario on August 16, 2016. I further find that there are no exceptions that apply here and the U.A.E. is the court that has the jurisdiction over this child.

[37] I recognize the final order of the U.A.E. Judicial Department 2nd Circuit of Personal Status dated January 9, 2017 a translated copy of which was attached to the mother's affidavit of February 8, 2017 as Exhibit "A". That order provided that the mother shall have custody of the child and the father shall "hand over" his daughter to the mother. I am prepared to make the orders sought by the mother in her notice of motion.

[38] I am very troubled by the suspicious circumstances surrounding the alleged loss of the passports of the father and more importantly the child. I was advised by Mr. Stangarone that the father had the child's birth certificate. The father denied this. The father said that he left the U.A.E. with the child's passport and her permanent resident card only. The father provided no explanation for why he did not claim the child's passport was missing until November 29, 2016. Given that it was inevitable that litigation would result after the child was abducted it seems highly unlikely that the father would lose important legal documents. I am very concerned that the father may still have both passports and /or the birth certificate. I granted a temporary order that neither party is to take the child out of the province of Ontario. That order remains in place until this order is issued and entered. I know that Mr. Stangarone's firm has taken all the steps they can to ensure that the temporary order can be enforced by the relevant police forces and border services. They will need to replace that temporary order with this final order that declines jurisdiction and permits the mother to remove the child in order to return her to her home in the U.A.E.

[39] This motion has been adjourned to March 13 on the issue of costs and to ensure compliance with the U.A.E. order. I want to be clear that if the mother is able to come to Ontario prior to March 13 to take the child to the U.A.E. that she is able to do so.

ORDER

[40] This order replaces the order of the Honourable Justice Philip J. Clay dated February 28, 2017.

(1) The child Julia Daji born August 6, 2014 shall be immediately returned to the Respondent who shall return her to her place of habitual residence in the United Arab Emirates.

(2) This Court has no jurisdiction to determine the custody and/or access issues pertaining to the said child.

(3) This Court recognizes the order of Judge Hamad Musbah Al Kutbbi of the 2nd Circuit Court in the United Arab Emirates, dated January 9, 2017.

(4) This Court authorizes the Peel Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, Canada Border Services and/or such other law enforcement agencies as may have jurisdiction to enforce paragraph 1 of this order and the said order of the United Arab Emirates Court of January 9, 2017 pursuant to s.36 of the Children's Law Reform Act.

(5) The Applicant or anyone on his behalf is prohibited from removing the said child from the Regional Municipality of Peel in the Province of Ontario.

(6) a) The Applicant shall sign all documents as may be required to permit the said child to travel from Toronto to the United Arab Emirates including but not limited to any documents that may be required for the child to obtain a passport and entry visa.

b) The Applicant shall deliver to the Respondent's counsel all legal documents concerning the said child in his possession forthwith. If the Applicant is no longer in possession of any of the child's documents that he brought to Canada he shall sign all documents and pay all fees that may be required to obtain replacement documents on an expedited basis.

(7) This matter is adjourned to March 13, 2017 at 2:00 p.m. in courtroom 208 to address the following issues:

a) The documents needed for the said child to be returned to the United Arab Emirates

b) The cost of travel of the Respondent to Toronto and the Respondent and the said child from Toronto to the United Arab Emirates.

c) The costs of this proceeding provided that:

i) the Respondent shall serve her costs submissions limited to three pages double spaced plus a bill of costs by March 7 and shall file them by March 9, 2017.

ii) the Applicant shall serve response submissions limited to three pages double spaced by March 10 and may file them in courtroom 208 on March 13, 2017 at 12:30 p.m.

Released: March 2, 2017

Justice Philip J. Clay