Court File and Parties

Court File No.: DFO-18-1535 Date: 2018-04-30 Ontario Court of Justice

Between: Maha Moussa, Applicant

— And —

Osama Sundhu, Respondent

Before: Justice M.B. Pawagi

Heard on: March 5, 6 and April 16, 2018

Reasons for Judgment released on: April 30, 2018

Counsel:

• Rosemary Masemann, counsel for the applicant mother
• David H. Nuri, counsel for the respondent father
• Catherine Bellinger, counsel for the child

PAWAGI J.:

1: OVERVIEW

[1] Does a court in Kuwait or in Ontario have jurisdiction to decide who should have custody of the parties' 7-year-old son? The applicant mother asks this court to recognize her Kuwaiti custody order and return the child to her care in Kuwait. The respondent father asks this court to assume jurisdiction on the grounds that Kuwaiti law did not require the Kuwaiti court to have regard for the best interests of the child; or, in the alternative, that the child's habitual residence changed from Kuwait to Ontario when the applicant mother sent him to the respondent father for schooling, and/or the child would suffer serious harm if returned to the applicant mother's care as she may move to Syria. I conclude that the Kuwaiti custody order should be recognized as the respondent father has not proven, on a balance of probabilities, any of the grounds upon which this court can assume jurisdiction.

2: FACTS

[2] The applicant mother is Syrian and the respondent father is Pakistani. They were both living and working in Kuwait when they met and married in 2008. Their son was born on December 24, 2010. The parties separated in 2014 and the child has been in the exclusive care of his mother since that time, until very recently. She obtained a Kuwaiti custody order on consent on April 16, 2015, and later, a divorce.

[3] The respondent father moved to Canada in 2016 where he is now a permanent resident living in Mississauga, Ontario. The applicant mother and the child are both Canadian citizens, though the child has lived his entire life in Kuwait (with one visit to his father in Canada in the summer of 2016). The applicant mother is a permanent resident of Kuwait. The respondent father was on a work visa in Kuwait which has since expired.

[4] On December 18, 2017 the applicant mother sent the child to the respondent father in Canada as the parties had agreed the child would go to school in Canada and spend the summers in Kuwait. The applicant mother provided a travel consent letter for the period of December 18, 2017 to June 20, 2018.

[5] On January 17, 2018, in response to a text by the applicant mother enquiring about the exact date school finished so she could purchase an airline ticket for the child's return to Kuwait, the respondent father advised that he would not be returning the child to Kuwait in the summer because the child was behind in school and needed to do school work in the summer to catch up. He told her she could come to Canada to visit with their son as he would not be returning him to Kuwait.

[6] Consequently, the applicant mother brought an application and motion dated February 20, 2018 to have her Kuwaiti custody order recognized and to have the child returned to her in Kuwait. The respondent father responded with an Answer and motion seeking custody of the child.

[7] The hearing was conducted on March 4 and 5, 2018. At which time, this court made an order, on consent, requesting the involvement of the Office of the Children's Lawyer, who accepted forthwith and provided the results of their focused investigation in court on April 16, 2018.

[8] Counsel on behalf of the child did not take a position on the issue of jurisdiction but provided the following evidence from the Clinical Investigator, that was accepted by the parties: The child is a happy, engaging child who appears to have been well cared for all his life and who is well cared for in his present setting. He appears to be meeting his developmental milestones, which was confirmed by his current school who report he is friendly, well-behaved and making academic gains (he is in grade 2), with supports. He loves both his parents. He is happy in his father's care. He also misses his mother. He would like everyone to live somewhere half-way between Canada and Kuwait.

3: ANALYSIS AND THE LAW

1. Should this court recognize the Kuwaiti custody order?

[9] This case is not governed by the Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, because Kuwait is not a signatory. Thus, the applicant mother proceeded under Part III the Children's Law Reform Act (CLRA) which deals with Extra-Provincial Matters.

[10] She brought her application pursuant to s. 41(1) of the CLRA which requires that a court shall recognize a custody order made by an extra-provincial tribunal unless the court is satisfied that any one of five possible grounds are met:

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).

[11] The respondent father contests the order on the second and third grounds; namely, he did not get an opportunity to respond, and the court was not required by law to have regard for the best interests of the child.

[12] Foreign law is ordinarily a question of fact to be proven by expert evidence on a balance of probabilities: Lind v. Sweden, [1987] O.J. No. 871 (Ont. C.A., appeal to S.C.C. dismissed).

[13] However, the CLRA provides a statutory short cut in s. 45 which allows that for the purposes of an application under Part III, "a court may take notice, without requiring formal proof, of the law of a jurisdiction outside of Ontario and of a decision of an extra-provincial tribunal".

[14] The respondent father relies on the Kuwaiti custody order dated April 16, 2015 which was filed by the applicant mother along with the English translation. No other decision or any Kuwaiti law was filed.

[15] The order notes, and the respondent father does not dispute, that both parties were present in court, and that the applicant mother sought custody and waived her right to alimony, and the respondent father agreed.

[16] The respondent father submits however, that he only agreed because the result was a foregone conclusion as Kuwaiti law, as quoted in the decision, has a presumption in favour of the mother regarding custody of young children; and, in the alternative, other female relatives on both the maternal and paternal side, before custody to the father would even be considered. The respondent father submits this demonstrates he had no meaningful opportunity to be heard and the tribunal is not required to have regard for the best interests of the child. He relies on the following excerpt from the decision:

Whereas it is stipulated legally "the mother's right in custody, then to her mother and then for aunt then mother's aunt, then paternal aunts, then grandmother of father, then to father…"

Affidavit of Maha Moussa, sworn February 19, 2018, Exhibit "A," p. 2

[17] The applicant mother submits that this presumption can be dislodged, as further quoted in the order, if the mother is not capable of caring for the child's health and morals, and that this demonstrates a regard for the child's best interests. She relies on the following excerpts from the decision:

Whereas it is stipulated legally and pursuant to article 190 from aforementioned law No. 51/84 that "A - It is required in the eligible of custody: Maturity, sane, honesty, capability to bring up the child, keeping his health, and morally, it is required in the custodian to be unmarriageable (Mahram), and has the one fit for custody of women".

Whereas it is stipulated judicially as per the articles 189-190 from law No. 51 for 1984 regarding personal status as the mother whether in case of marriage or after separation is entitled to custody of her baby as long as she is fulfilling the conditions that should be available in custody such as Maturity, sane, honesty, capability to bring up the child, keeping his health, and morally, and if assessing the availability of these conditions is the concern of subject court without expeditor as long as it established its evaluation on facts.

Affidavit of Maha Moussa, sworn February 19, 2018, Exhibit "A," p. 2

[18] The problem is that the excerpts from the decision relied upon by the parties are not of sufficient completeness or coherence as to enable this court to take judicial notice of Kuwaiti law. Part of the problem may be poor translation; for example, the word "expeditor" used in the excerpt above, and with which I was not familiar, is defined by the Oxford English Dictionary as "an employee responsible for ensuring that work is done efficiently and on schedule," which is likely not its intended use.

[19] The applicant mother also relies on information about family law in Kuwait found on the website of the U.S. Embassy in Kuwait. The respondent father submits that the information on the website actually supports his position. But since the statutory shortcut provided in s. 45 refers only to the court being able to take judicial notice of decisions and laws, not other evidence, this court cannot take judicial notice of information contained in a website. In any event, the website does not clearly address whether Kuwaiti law requires the court have regard for the best interests of the child or not.

[20] Thus, neither party provided Kuwaiti law for this court to take judicial notice of; however, the onus is on the respondent father, as s. 41 clearly directs that the court "shall" recognize the extra-provincial order "unless" a party satisfies the court one of the listed grounds are met. The respondent father has not satisfied that onus, and consequently this court must recognize the Kuwaiti custody order.

2. Should this court supersede the Kuwaiti custody order because the child's habitual residence has changed to Ontario?

[21] The respondent father submits that even if the Kuwaiti custody order is recognized, it should be superseded pursuant to s. 42(1):

42 (1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,

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

(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 the child no longer has a real and substantial connection with the place where the extra-provincial order was made,

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

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

(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 42 (1).

[22] The threshold requirement of material change in circumstances has clearly been met as the child's country, school and caregivers have all changed since the custody order was made.

[23] Section 42 then provides two paths by which a court can supersede an extra-provincial custody order: 1. Where the child is habitually resident in Ontario at the start of the application or 2. Where the child is not habitually resident but the five conditions listed above have been met.

[24] The respondent father submits that the test in the first path has been met as the child's habitual residence has changed. He is not pursuing the second path, which I note he would not have been successful in as all five parts of that test have to be met and it is not the case that the child "no longer has a real and substantial connection with the place where the extra-provincial order was made," as the child lived in Kuwait since birth and only moved to Ontario on December 18, 2017.

[25] Habitual residence is defined by s. 22(2) of the CLRA:

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(1).

[26] The respondent father submits that the child's habitual residence changed from Kuwait to Ontario at the time the parties agreed that the child would move to Ontario, because their intention was that it was a permanent move, and he cites the fact that the applicant mother sent the child's student health record and immunization record with him.

[27] The applicant mother submits that the move was temporary only, for the purposes of the child's schooling, and that consequently the child's habitual residence remains Kuwait, and that the health and immunization records were simply required for his school enrollment. Her signed travel consent letter, which specifies that she is consenting to the child travelling to Toronto from December 18, 2017 to June 20, 2018, supports her position, as does a series of text messages between the parties on January 18, 2018.

[28] The text message exchange starts with her request for the date the child finishes school so she can book his airline ticket. The respondent father answers that he will not be sending the child to Kuwait for the summer as he needs to go to summer school to catch up. She responds by repeating several times that the agreement was that he is with the respondent father for school and with her in the summer. She expresses anger and frustration. The respondent father is firm that he will not be returning the child to Kuwait and if she wishes to see the child she will have to come to Canada to visit him. Consequently, she brings the within application for the return of the child.

[29] Subsection 22(3) expressly stipulates that a parent cannot unilaterally change a child's habitual residence:

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 the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22(3).

[30] It is clear on the facts of this case that the joint parental intention was for the child to return to Kuwait in June 2018 at the end of the school year.

[31] However, the Supreme Court of Canada recently modified the test for determining habitual residence by requiring that the court consider not only parental intention but also all of the child's circumstances, which the Court described as taking a "hybrid approach":

Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary and the reasons for that agreement. But the judge also considers all other evidence relevant to the child's habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot unilaterally change a child's habitual residence, or that a parent's consent to a time-limited stay cannot shift a child's habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents' intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court's duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children' at the time of their alleged wrongful retention or removal.

Office of the Children's Lawyer v. Balev 2018 SCC 16, [2018] S.C.J. No. 16 at para. 73.

[32] While the Supreme Court of Canada case was decided pursuant to the Hague Convention, it applies to the case at bar as the definition of "habitual residence" has been held to be the same in Hague cases and in extra-provincial cases pursuant to Part III of the CLRA.

[33] The parties did not provide much evidence regarding the circumstances of this child, and what they did provide, conflicts. The applicant mother asserts that the child misses her and that the respondent father is preventing the child from communicating with her while in his care. The respondent father asserts that it is the applicant mother that has kept the child from him in the past by blocking her phone number for several months and submits a brief video of the child which he believes demonstrates the applicant mother was keeping the child from him.

[34] With regard to the respondent father's submission that the applicant mother will never permit the child to visit him if she has custody, the evidence to date actually points to the opposite conclusion. When the respondent father had the child, he told the applicant mother he would not be sending the child to visit her in Kuwait. But when the applicant mother had the child, she sent him to visit the respondent father for two months just shortly after the respondent father moved to Canada in 2016, and again in 2017 for an even longer period.

[35] Indeed, the arrangements the parties had made by agreement were to share the child, with the respondent father having him during school and the applicant mother having him during the summer. It is the respondent father who felt he could unilaterally change this agreement without regard to the applicant mother, the Kuwaiti custody order and without even applying to the court in Canada.

[36] The respondent father also provides a letter from the child's current school stating the child was behind when he enrolled, as evidence that the child's educational needs were not adequately met while he was in the care of his mother.

[37] Fortunately, the Office of the Children's Lawyer accepted this referral and provided the court with independent evidence regarding the circumstances of the child. The child is happy and healthy, loves both his parents and misses his mother. His new school reports he is friendly, well-behaved and making gains.

[38] Section 64(1) of the CLRA expressly directs the court to consider the child's views and preferences where possible:

64(1) Child entitled to be heard – In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them. R.S.O. 1990, c. C.12, s. 64(1).

[39] The child did not express a view regarding Kuwait or Canada. His love for both of his parents (and his touching desire for fairness) is captured in his wish that everyone would live somewhere halfway between the two countries.

[40] Having considered parental intention (clearly demonstrated in the travel consent letter which only provides consent until June 20, 2018), the child's circumstances (he has lived in Kuwait for seven years and has lived in Ontario for only four months to attend school) and his views and preferences, I find that the child's habitual residence remains Kuwait.

[41] The Supreme Court of Canada in Balev especially commented on the "culture of complacency towards delay in the justice system," citing R. v. Jordan, 2016 SCC 27 from the criminal context, and noted that while it is objectionable in all contexts, Hague Convention cases in particular cannot tolerate it and that such proceedings should be expedited.

[42] Given the critical importance of avoiding delay in cases concerning the unlawful removal or retention of children, I wish to make special note of how expeditiously all parties, and in particular the Office of the Children's Lawyer, acted in this case. The applicant mother brought her application on February 20, 2018, within one month of the respondent father telling her he would not return the child to Kuwait as planned. Both parties, their counsel, and the court were prepared and available to conduct the hearing two weeks later, starting on March 5, 2018. This court then requested the involvement of the Office of the Children's Lawyer on March 7, 2018. Counsel Catherine Bellinger and Clinical Investigator Manjula Sharma were appointed, immediately commenced their investigation, which included interviews with both parents, three interviews with the child and an interview with the child's school vice principal and teacher, and provided the results on April 16, 2018.

3. Should this court supersede the Kuwaiti custody order because the child would be at risk of serious harm if returned to his mother's care?

[43] Section 43 of the CLRA provides that this court may supersede the Kuwaiti order due to serious harm:

43. Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if,

(a) the child remains in the custody of the person legally entitled to custody of the child;

(b) the child is returned to the custody of the person entitled to custody of the child; or

(c) the child is removed from Ontario. R.S.O. 1990, c. C.12, s. 43.

[44] In deciding what constitutes "serious harm," courts have equated the risk of serious harm in the CLRA with the standard in the Hague Convention; namely, a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[45] However, in a recently released decision of the Ontario Court of Appeal, Justice Laskin held that the serious harm test of the CLRA is less stringent than the intolerable situation test of the Hague Convention. Justice Laskin reasoned that when a court is contemplating a return to a country that is not a signatory to the Hague Convention, the court does not have the reassurance that similar considerations regarding the best interests of the child will apply, and thus the threshold to prevent a return should not be as high.

Ojeikere v. Ojeikere [2018] ONCA 3712 at para. 59-60.

[46] In this case, the harm contemplated is a risk that the applicant mother will move the child to Syria, which meets both tests, as moving the child to a war zone would place him both at serious risk of harm and at grave risk of being exposed to physical or psychological harm or otherwise being placed in an intolerable situation.

[47] What is in dispute, however, is not the severity of the harm, but the risk of it occurring. As Justice Laskin notes, "As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm and the severity of future harm."

Ojeikere v. Ojeikere [2018] ONCA 3712 at para. 62

[48] The issue is the likelihood of the applicant mother moving the child to Syria. The respondent father submits she is likely to move as her husband, whom she recently married, lives and works in Syria. The applicant mother submits she has no intention of moving to Syria with the child, and that the plan is for her husband to move to Kuwait, or for them to move to Dubai. I find I cannot rely on her stated intention alone, due to the following concerns about her credibility:

a. In her affidavit sworn February 19, 2018, she deposes that the initial agreement between the parties was that the child was coming to Canada for only a three week visit. But at the hearing, she conceded that this was not the case, that the agreement was that the child was coming to Canada to attend school.

b. In the same affidavit, she deposes that the respondent father also withheld the child in the past, referring to the summer visit in 2016. She deposes that this visit was supposed to end at the end of July, but the respondent father did not return the child until September, and even then, only did so after she called the paternal grandfather for assistance. However, the respondent father filed a copy of the child's airline ticket which shows that the dates of the trip were June 17, 2016 to September 5, 2016, and thus that the agreement, from the beginning, was that the child would return in September.

[49] However, even though I cannot rely on the applicant mother's statement, I find on the basis of the following evidence, that returning the child to her would not place him at risk of serious harm:

a. She visited Syria with the child three times in 2017, did not take him to any active war zone, and returned safely with him.

b. When her father (whom she resides with in Kuwait) was planning to move the household and his business to Syria, which would have necessitated her moving as well, she planned to move the child to Canada, to the respondent father, as she did not wish for the child to live in Syria.

c. The evidence provided by counsel on behalf of the child is that the applicant mother has taken good care of the child. There is no evidence before the court that she would intentionally put him in a situation which would place his life in jeopardy.

4. Conclusion

[50] The respondent father has not demonstrated, on a balance of probabilities, that this court should supersede the Kuwaiti custody order and assume jurisdiction in this case. And consequently, the applicant mother's request for an order recognizing her Kuwait custody order, ordering the child returned to her care and ordering payment for travel and other expenses shall be granted pursuant to s. 40 and 41 of the CLRA.

[51] This order meets the purposes of Part III of the CLRA as set out in s. 19, namely:

(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.

[52] Justice Laskin in Ojeikere notes that recognizing extra-judicial orders is not separate and apart from best interests because the "policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature's overriding concern with a child's best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent's interests over that of the child."

Ojeikere v. Ojeikere [2018] ONCA 3712 at paras. 13 and 16.

[53] It is worth noting that even if this court had assumed jurisdiction, the evidence regarding the child would not support changing custody to the respondent father on an interim basis. Such a change would not be in the child's best interests for the following reasons: the child has lived in Kuwait from birth until the age of seven; he has only lived in Canada for four months; the applicant mother was his primary caregiver since the parties separated in 2014; there are no concerns with her care of the child; the child being behind at school when he arrived in Canada is not a sufficient ground upon which to base a temporary change in custody; the applicant mother is not likely to place the child at risk of serious harm by moving him to a war zone.

4: ORDER

1. The custody Order dated April 16, 2015, made by the Hawally Partial Court of Kuwait, granting the applicant mother, Maha Moussa, custody of the child, Adam Sundhu, born December 24, 2010, is recognized pursuant to sections 40 and 41 of the Children's Law Reform Act.

2. The respondent father shall return the child to the care of the applicant mother, along with the child's Canadian passport.

3. The applicant mother may obtain, retain and renew the child's Canadian passport without requiring the consent of the respondent father.

4. The applicant mother may travel with the child outside of Canada without requiring the consent of the respondent father.

5. The respondent father shall pay the following travel and hotel costs to the applicant mother within 30 days:

   a. $902 for return flight Kuwait-Ottawa and $280 for return flight Ottawa-Toronto incurred for the application and hearing;

   b. $2,500 for hotel costs incurred for the application and hearing; and

   c. Cost of one-way ticket for child Toronto-Kuwait, and round-trip ticket for the applicant mother if she is accompanying him, for return of the child, to be paid within 7 days of receiving copy of airline ticket(s).

Parties may seek court date by 14B motion if appearance is necessary to settle details of return of child, given applicant mother is currently in Kuwait.

Costs submissions may be submitted by e-mail by May 18, and responding submissions by May 28, 2018.

Released: 30 April 2018

Justice M.B. Pawagi