Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 7, 2024 COURT FILE No.: Toronto DFO-24-316-0000

BETWEEN:

Amber Iqbal Khan Applicant

— and —

Syed Yasir Raza Respondent

Before Justice Sheilagh O’Connell

Motion Heard: August 6, 2024 Ruling released on: August 7, 2024

Counsel: Cynthia Pon, for the applicant mother Syed Mustafa Mahdi, Counsel/Advocate for applicant mother in the High Courts (Pakistan), appearing by Video Conference (Zoom) from Pakistan No one appearing for the respondent father, although duly served and notified Law Students Zane Nazir and Fatima Zakia from Ms Pon’s office also in attendance

O’CONNELL J.:

Introduction

[1] The court heard an urgent motion brought by the applicant mother seeking an order that the habitual residence of the subject children be deemed Toronto, Ontario, Canada and that the Ontario Court of Justice assume jurisdiction in this matter.

[2] The mother also seeks court orders for decision-making responsibility, primary residence for the children, a non-removal order and that the father have supervised parenting time should he return to Canada.

[3] This matter originally started as an urgent ex parte 14b motion before me, received in chambers on July 30, 2024. The mother was seeking an urgent motion on jurisdiction, as well as other orders. On July 30, 2024, for brief written reasons, I made a temporary ‘without prejudice’ order that the applicant mother be granted care and control of the children and that they not be removed from Canada pending a hearing on jurisdiction. I then scheduled the urgent motion for August 6, 2024 as the 14b motion indicated that the father had started custody proceedings in Pakistan and a hearing had been scheduled in Pakistan for August 9, 2024.

[4] The urgent motion in Ontario proceeded before me on August 6, 2024. The father was not present in court for the hearing, nor did an agent attend on his behalf. The father was served with all court documents, according to the Affidavit of Service filed, and was also notified by the Trial Coordinator of the time and date for the hearing. The father also received a copy of my 14b endorsement and the Zoom details to participate in the hearing.

[5] The father did send an email to the Trial Coordinator on the morning of August 6th confirming that he had received notification of the hearing, but that he was unable to attend “due to unforeseen medical circumstances”. He requested an adjournment to a date after August 15, 2024 to allow him to address his medical issues and to have enough time to legally represent himself in court.

[6] The father did not disclose any details regarding his medical issues nor file any medical evidence supporting his claims. He did not send an agent, or formally request an adjournment through a Form 14b motion with supporting evidence, as directed to do. The father was advised in writing by the Trial Coordinator that a court hearing cannot be adjourned by email. The matter was held down, but the father did not attend.

[7] The threshold issue of jurisdiction is an urgent one and must be addressed immediately, given that father has also started family court proceedings in Pakistan, to be heard on August 9, 2024.

[8] This court was provided with an earlier Ruling dated July 22, 2024 of the High Court of Sindh at Karachi, Pakistan in which the Pakistani Court ruled that “the issue of jurisdiction [Canada or Pakistan] must be decided on a priority basis within one week to end the anxiety of the parties” regarding which court is the proper forum under the law to determine the custody of the children.

[9] The court appreciates that a summary determination of the issue of jurisdiction by relying only on affidavit evidence may be procedurally unfair to the father, particularly given his request to adjourn this hearing until after the jurisdictional hearing in Pakistan is heard on August 9, 2024 and his failure to participate in this hearing. See: Zafar v. Azeem, 2024 ONCA 15 at paragraph 36.

[10] However, unlike the facts before the Court of Appeal in Zafar v Azeem, supra, (a case also involving Pakistan and Canada) there is no significant dispute between the parties regarding the material facts necessary to determine jurisdiction. Further, on July 22, 2024, the High Court of Pakistan ordered that the children be returned to the mother in Pakistan, and on July 25, 2024, ordered the return of the mother’s and children’s passports, and permitted her to return to Canada with the children by lifting all conditions restricting travel. The mother and the children returned to Canada immediately thereafter and the mother commenced these proceedings in accordance with the direction of the Pakistani High Court.

[11] The documentary evidence provided by the mother from independent third parties such as the children’s school, medical professionals and housing organization, attached as exhibits to her affidavit, provide very strong corroborating evidence of habitual residence in Ontario.

[12] The facts in this case are very different from the facts in Zafar, notwithstanding that case also involved a jurisdictional conflict between Pakistan and Canada.

[13] Given the above considerations, the father’s request to adjourn the threshold issue of jurisdiction will not be granted. The court is concerned that the father is attempting to delay the adjudication of this issue by a Canadian court until after the hearing on August 9th in Pakistan.

[14] The court will certainly permit the father to file responding materials on the parenting issues before the court makes any final orders, assuming that I determine I have the jurisdiction to do so.

[15] For brief oral reasons given in court on August 6, 2024, and for the written reasons that follow, this court finds that the children’s habitual residence is Toronto, Ontario, Canada. Accordingly, this court has jurisdiction to determine and adjudicate on all parenting issues affecting the children.

Evidence and Court Documents received on this Urgent Motion

[16] The Court reviewed the following documents and evidence:

1. The mother’s Application dated July 31, 2024;
2. The mother’s 35.1 Affidavit sworn July 31, 2024;
3. The mother’s 14A Affidavit sworn August 2, 2024, and the Exhibits attached;
4. The mother’s Habeus Corpus Petition before the Court of District and Sessions Judge at Karachi, Pakistan dated June 2024;
5. The Order of Judge Shahid Ali Memon, Sessions Judge Karachi East, dated June 21, 2024;
6. The Written Argument regarding the Appeal of that Order to the High Court of Sindh at Karachi dated July 22, 2024;
7. The Reasons and Order of Honourable High Court of Pakistan in Sindh at Karachi dated July 22, 2024 and the Order Judge Shahid Ali Memon, Sessions Judge Karachi East dated July 25, 2024 returning the mother’s and children’s passports;
8. The children’s medical and school records in Canada, including the older child’s school enrolment history since 2016 to 2024 in Toronto, Ontario.
9. The mother’s current Occupancy Agreement at T[…] Co-operative Homes in Canada, confirming occupancy since May 15, 2017.
10. The Working Agreement between the Children’s Aid Society of Toronto and the parents signed and dated in February of 2017, providing that the children remain in the mother’s primary care and residence, and that the father have supervised parenting;
11. Copies of texts written by the father to the mother in Pakistan in June of 2024;
12. Correspondence between the mother and Global Affairs Canada (Emergency Watch and Response Centre and the High Commission of Canada in Pakistan, in Islamabad in June of 2024, assisting the mother in finding counsel in Pakistan.

Brief Factual Background

[17] The applicant mother and the respondent father married in Karachi, Pakistan on April 9, 2010. They have two children, namely Syed Umer Yasir, born […], 2011 (“Umer”, age 13 years), and Syed Khizar Yasir, born […], 2022 (“Khizar”, age 2 years). Umer was born in Pakistan and Khizar was born in Canada.

[18] The mother and the father immigrated together to Canada in 2013 when Umer was two years old. It is not disputed that the family permanently relocated to Canada at that time. Their second child, Khizar, was born in Canada.

[19] Both children are dual Canadian and Pakistani citizens. The mother and father are also Canadian citizens and retain Pakistani citizenship.

[20] It is not disputed that Umer has lived continuously in Canada since he was 2 years old and that Khizar has lived in Canada since his birth. Both children are Canadian citizens, have Canadian passports and Ontario health cards.

[21] The parties separated on December 22, 2016. At that time, the Children’s Aid Society (“Society”) became involved due to serious concerns of physical abuse by the father towards the oldest child Umer and the mother. Umer’s school made the report to the Society following disclosures made by Umer to his teacher at school. The mother and Umer left the family home in December of 2016 with the assistance of the Children’s Aid Society and moved to a shelter for woman and children.

[22] Shortly thereafter, the mother secured a two-bedroom home for herself and Umer on T[…] Avenue in Toronto, where she and the children continue to live today. The father lived in his own residence at a separate apartment building on T[…] Drive.

[23] Although the parties separated in 2016, they have never divorced.

[24] In February of 2017, the parties entered into a Working Agreement with the Children’s Aid Society of Toronto in which the parties agreed that Umer’s residence, care and custody to remain with the mother, and that she will make decisions for the child. The father’s access to Umer would be supervised by the Children’s Aid Society, subject to further review. An Urdu speaking interpreter would be present for the father’s supervised visits at the Society’s offices. Both the mother and the father signed this agreement.

[25] Following the separation in 2016, despite some attempts at reconciliation, the parties never reconciled or lived together after that time. They have always maintained their separate residences. However, attempts at reconciliation led to the birth of their second son Khizar in 2022. Khizar has lived with his mother and his brother since his birth.

[26] According to the medical evidence filed, Khizar has been diagnosed with Autism Spectrum Disorder and receives regular medical treatment and care for his autism in Toronto following referrals by his family doctor for specialized treatment.

[27] According to the mother’s evidence, the father’s relationship with the children since the parties’ separation in 2016 has been inconsistent. He would sometime visit the children on a weekly basis, and on other occasions, he would be gone for months without any parenting time. He pays monthly child support to the mother, who also receives social assistance.

The Father’s Unlawful Retention of the Children in Pakistan

[28] In June of 2024, the father encouraged the mother to travel with the children to Pakistan during the summer school break for a holiday. The purpose was to visit with extended family and to celebrate Eid. The father paid for the airline tickets. The mother arranged to stay with the children at the maternal grandfather’s home and the father stayed at his sister’s home.

[29] The father only purchased one-way tickets. The mother was concerned about that and asked the father why he had not purchased return tickets. The father advised her that he had planned to purchase return tickets closer to the time that they had planned to return in August of 2024 as he wanted to look for better flight deals for the return.

[30] On June 9, 2024, the mother and the children arrived in Pakistan and stayed at the maternal grandfather’s home. On June 14, 2024, the father went to visit the mother and the children at the maternal grandfather’s home. The father became very angry with the mother and physically assaulted her while she tried to protect the children. The father removed the children from the mother’s care and retained them at his residence at his sister’s home.

[31] The mother made several attempts to retrieve the children and contacted a Pakistani lawyer through the assistance of the Global Affairs Canada and the Canadian Consulate in Pakistan (Islamabad).

[32] On June 21, 2014, the mother’s lawyer in Pakistan brought an urgent Habeus Corpus application in a District Sessions court in Pakistan on the basis that the father had wrongfully retained the children. The Pakistani court agreed and granted the mother temporary custody of the children, subject to the conditions that she surrender her Canadian and Pakistani passports as well as the children’s passports to the Court and that she not remove the children from Pakistan, among other conditions, as requested by the father, pending a full hearing. The District Court judge directed the parties to family court. The father then brought an application for custody in the Guardians and Wards (Family) Court in Pakistan.

[33] Following the Habeus Corpus Order of the Sessions Judge, the Pakistani police apprehended the children from the father and returned them to the mother. The children were returned to the mother on or about June 22, 2024.

[34] The mother then appealed the conditions attached to the Habeus Corpus ruling that she surrender all passports and not leave Pakistan with the children. She sought to set aside the conditions regarding the passports, and the suspension of the non-removal order.

[35] According to the written arguments and pleadings filed on appeal in the Pakistani High Court, the mother argued that the children are Canadian citizens, habitually resident in Canada and are wrongfully retained in Pakistan in contravention of the Hague Convention on the Civil Aspects of International Child Abduction, of which both Pakistan and Canada are signatories. Therefore, the conditions regarding the children’s passports and the non-removal order, as well as others, should be set aside, as any dispute over permanent custody should be litigated at the place of the children’s habitual residence. It is not disputed that Pakistan has been a signatory to the Hague Convention on International Child Abduction since 2017.

[36] On July 22, 2024, the High Court of Sindh at Karachi Pakistan agreed with the mother and ruled that the purpose of the Habeus Corpus application had now been served, as custody had been handed over the to the applicant mother by the Sessions Judge. It set aside the conditions imposed.

[37] The High Court then deferred the issue of jurisdiction to the Pakistani family court and stated at paragraph 13 of its decision that the “learned Guardians and Wards Court is first required to see whether it has jurisdiction in light of the law laid down by the Supreme court and law cited by the learned counsel for the applicant. The issue of jurisdiction must be decided on a priority basis within one week to end the anxiety of the parties...”

[38] Following the High Court’s ruling on the appeal, the District Judge of Karachi East returned by court order the mother’s and children’s passports to the mother on July 25, 2024.

[39] On July 26, 2024, the mother and the children immediately returned to Canada and are now back in their home at T[…] Park in Toronto.

[40] On July 30, 2024, the mother commenced this application for sole decision-making responsibility, parenting and primary residence of the children. She also brought this urgent motion seeking an order finding that the children’s habitual residence is Ontario, Canada and that this court take jurisdiction of all of the parenting issues in dispute between the parties.

[41] In the father’s family court application in Pakistan, he has applied for “conjugal rights” and an order that the mother be returned to him as an obedient wife. He states that the mother is a “disobedient wife not faithful to the plaintiff [the father] and not ready to join the house of the plaintiff”. He states that the mother went to her own home “without permission” and he wants to bring her and the children back to a “happy matrimonial life”. He does not dispute the history of the mother’s and children’s residence in Canada at any point in his materials.

[42] He also disagrees that Khizar is autistic and claims that the mother has obtained a “fake bogus medical certificate” that the child is autistic to get compensation from the Canadian government.

The Law and Analysis

[43] The threshold issue that the court is required to determine is where the children are habitually resident. Habitual residence is the key to the question of whether the Ontario court should assume or decline jurisdiction. See: Zafar v. Azeem, 2024 ONCA 15 at paragraph 44.

[44] The case before me involves allegations that the father attempted to unlawfully retain the children in Pakistan. The issue of whether the Hague Convention on the Civil Aspects of International Child Abduction applies when considering the issue of habitual residence was addressed in argument at the motion before me.

[45] It is not disputed that Pakistan has been a signatory to the Hague Convention since 2017. The mother, while in Pakistan, invoked the Hague Convention during her arguments to the High Court of Pakistan when her counsel successfully argued that the father had unlawfully retained the children in Pakistan. The mother’s counsel in Pakistan attended the Zoom hearing before me on August 6, 2024 and explained that he did so, and that the High Court in Pakistan accepted these arguments, despite deferring the issue of jurisdiction to the lower family court.

[46] However, while Pakistan acceded to the Hague Convention on March 1, 2017, Canada has not acknowledged its accession. This means that the terms of the Convention do not apply in the case before me in Ontario. For cases not covered by the Convention, the Children’s Law Reform Act provides a complete code in Ontario. See the Ontario Court of Appeal’s decision in Zafar v. Azeem, 2024 ONCA 15, at paragraphs 41 and 43 (“Zafar”).

[47] Accordingly, I am governed by section 22 of the Children’s Law Reform Act when determining jurisdiction in the case before me. Notwithstanding this, the Court of Appeal also stated in Zafar, supra, that when determining the issue of habitual residence in a non-Hague case, legal principles applied in Hague cases, and in particular the Supreme Court of Canada’s decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (“Balev”) are equally applicable to non-Hague cases. (See paragraph 74 of the decision).

[48] In Los v. Ross, 2024 ONCA 122, the Court of Appeal cited Zafar as the proper approach to follow in undertaking a habitual residence determination under section 22 of the Children’s Law Reform Act (“CLRA”).

[49] However, unlike Hague cases, the definition of “habitual residence” is clearly set out under the CLRA, which is a complete code for determining the Ontario court’s jurisdiction in non-Hague cases. As the court stated in Markowski v. Krochak, 2022 ONSC 2497, at paragraph 65 of that decision, “It cannot be overstated that the place where a child is habitually resident is defined in the Act. This is in marked contrast to cases under the Hague Convention where there is no definition of habitual residence.”

The Statutory Framework

[50] As noted, section 22 of the Children’s Law Reform Act governs the determination of the court’s jurisdiction in making parenting orders. The statutory provisions are set out below:

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

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

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

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

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

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

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

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6. [Emphasis added.]

Habitual residence

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.
2. If 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.
3. With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to 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. 2020, c. 25, Sched. 1, s. 6.

Serious Harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(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 with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario. 2020, c. 25, Sched. 1, s. 6.

[51] In the case before me, the evidence is overwhelming that the children’s habitual residence is with the mother in Ontario, based on the following undisputed facts:

1. The mother and the father immigrated together to Canada in 2013 when Umer was two years old. It is not disputed that the family permanently relocated to Canada at that time. Their second child, Khizar, was born in Canada. The mother and father are Canadian citizens although retain Pakistani citizenship.
2. It is not disputed that Umer has lived continuously in Canada since he was 2 years old and that Khizar has lived in Canada since his birth. Both children are Canadian citizens, have Canadian passports and Ontario health cards.
3. Both children have been living with their mother continuously in Toronto, Ontario since the parents separated in Ontario in December of 2016, with the consent or acquiescence of the father. The father signed a Working Agreement with the Children’s Aid Society of Toronto on February 4, 2017 confirming that the children’s primary residence and care remain with the mother and that his access would be supervised by the Children’s Aid Society.
4. The mother and the children have been living in the same home in Toronto since May of 2017. The mother has been the primary care giver, if not sole caregiver, for both children since December of 2016 in Ontario, a period of over approximately 8 years.
5. The lease on the mother’s apartment in Toronto was never terminated when the mother and children went to Pakistan for a holiday in June. The mother and the children have returned to that apartment and are living there.
6. The oldest child has been continually enrolled in school in Toronto since 2015. He has been attending Northlea Elementary and Middle School since September of 2016. The mother has filed his school enrolment history from the Toronto District School Board dating back to 2015 and a letter from Umer’s school at Northlea Elementary confirming that he is completed Grade 7 French Immersion and is registered for next year, he is an excellent student, and he is thriving. Khazir is registered with the Preschool Morning Program.
7. Both children’s family doctors are in Toronto at Bloorkids. The immunization records filed demonstrate they received all of their vaccinations through their family doctors in Toronto. Khazir is also registered for occupational therapy and support at Centennial Infant and Child Centre given his special needs, to start in September.
8. The mother has a stable source of income in Ontario from government assistance and Child Tax Benefits. The mother has never terminated her social assistance, as confirmed by the documentation provided.
9. The mother and children were only in Pakistan from June 9, 2024 to July 25, 2024, a period of approximately six weeks. She has lived in Canada since 2013, approximately 11 years. Umer has lived in Canada since he was 2 years old. He is now 13 years old. Khazir has lived in Canada all of his life with his mother. He has no connection to Pakistan and Umer has very little, if no connection either.
10. There is no evidence that the parties reconciled in Pakistan or that the mother intended to live in Pakistan, as is clearly demonstrated by the text messages attached to the mother’s materials after the father unlawfully retained the children.
11. Although the father did not participate in the hearing before me, as addressed earlier in my ruling, it is clear in reviewing the Pakistani court orders and the father’s court documents, that the father did not dispute the material facts concerning habitual residence. There was no significant conflict at all between the parents regarding the material facts necessary to determine habitual residence.
12. It can also certainly be inferred that the Pakistani courts accepted these facts as well in ordering the immediate return and custody of the children to the mother following the Habeus Corpus hearing, and then subsequently ordering the return of the mother’s passport as well as the children’s passports to her, and lifting the restrictions to travel.

[52] The documentary evidence provided by the mother from independent third parties such as the children’s school, medical professionals and housing organization, attached as exhibits to her affidavit, provide strong corroborating evidence of habitual residence in Ontario.

Conclusion and Order

[53] In considering all of the evidence before me, and for the above reasons, the court makes the following orders:

1. The children’s habitual residence is Toronto, Ontario, Canada. The Ontario Court of Justice is the appropriate forum to assume jurisdiction and determine the parenting issues in this case, in accordance with the children’s best interests.

On a Temporary Basis, pending a full hearing on the merits, following receipt of the father’s responding court documents and attendance:

2. The mother shall have sole decision-making responsibility for the children and the children’s primary residence shall continue with the mother in Ontario.
3. The father shall be prohibited from removing the children from the Province of Ontario.
4. The father shall have supervised parenting to the children at a supervised access facility in Ontario should he return to Canada.
5. Any communication between the parents at this time shall be through counsel, pending further court order.
6. The motion regarding the parenting issues is adjourned to Monday, August 19, 2024 at 10:00 AM. The Clerk of the Court shall provide the father with the Zoom link for a video conference and information regarding duty counsel assistance, should he require same.
7. Father’s approval of the form and content of the draft Order prepared by counsel is dispensed with. Court clerk to issue Order forthwith.
8. The issue of costs is reserved. Urdu Interpreter is ordered for the next hearing date.

Released: August 7, 2024 Signed: O’Connell J.