Court File and Parties
CITATION: Hamour v. Hamour, 2020 ONSC 28
DIVISIONAL COURT FILE NO.: 723/19 FS – 16-181-00 DATE: 20191224
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BABIKER MOHAMED ALI HAMOUR Applicant
– and –
ENTISAR ABDALLA AWOUDA HAMOUR Respondent
COUNSEL: Kate Smirnova, for the Applicant No one appearing for the Respondent
HEARD at Toronto: December 24, 2019
Oral Reasons for Judgment
F.L. MYERS J. (Orally)
[1] This is a motion for a stay pending appeal from the Order of Doi J. dated yesterday, December 23, 2019. Doi J. granted the respondent leave to travel with her ten-year-old child to Sudan over the holidays to see the respondent’s ailing parents.
[2] I recognize that the result of the stay motion will likely determine the appeal itself. If the stay is granted, the trip will be lost, and time will pass before the appeal can be heard. If the stay is refused, the trip will be over before the appeal is heard.
[3] The motion before Doi J. was brought late in the day on December 12, 2019, returnable December 20, 2019. Under the Family Law Rules the motion was brought on a timely basis although at the last minute.
[4] The appellant asked for an adjournment in order to provide further evidence for the court. Doi J. considered the question and denied the adjournment in the exercise of his discretion. Counsel has been unable to point to any error in principle in the manner by which Doi J. dealt with the adjournment.
[5] There is a three-part test applicable to a request for a stay. The applicant must show that there is a serious issue to be heard in the appeal; that he will suffer irreparable harm in the absence of a stay; and that the balance of convenience favours the stay.
[6] As to the strength of the appeal, the applicant first challenges the motion judge’s refusal to admit an affidavit that appended unsworn letters from two of the older children. The judge considered that the letters were hearsay and, more importantly, he found that the merely parroted the applicant’s view and were not probative in and of themselves.
[7] The applicant also submits that Doi J. ignored his evidence that obtaining travel insurance and ensuring that the child is vaccinated are not useful strategies in relation to the proposed travel to Sudan. Insurance is unlikely to be of value because there are government travel advisories already recommending against travel to Sudan. In the event of terrorism or in the event injury occurs under government travel advisory, insurance may not cover. Similarly, assuming that the child has already obtained vaccinations for which no proof is yet available, there are many health issues for a foreign visitor, especially a child, in Sudan.
[8] I note however, that the judge considered and balanced these issues expressly at paragraph 37 of his endorsement. He noted that in the mother’s three prior trips with various of the children to Sudan, these risks were not even raised by the father. However, he took them into account.
[9] The applicant also argues that Doi J. erred by failing to require the father to provide evidence to him of the state of insurance and vaccinations. It is his right as a non-custodial parent to be kept informed in such a way. The interesting point of this argument is that it does not juxtapose well with the immediately prior argument in that, according to the applicant, neither insurance nor vaccination are of any use anyway. In any event, these arguments do not go to the best interests of the child and relate more to issues among and between the parents that can be dealt with under the various outstanding orders that deal with the nature of each of their parental rights.
[10] All of the issues raised by the applicant today amounted to rearguing the facts that were argued before Doi J. There was plainly evidence before him on both sides of all of the issues. Accordingly, an appeal on findings of fact or mixed fact in law which must be heard on a palpable and overriding error standard has a low probability of success. I acknowledge however, that the question of a serious issue to be tried or for appeal is itself a very low hurdle. Accordingly, while I would not rule out the possibility of there being a serious issue for appeal, I do not view this as a very significant factor.
[11] As to irreparable harm, the applicant alleges that there is a serious risk that the respondent will not return with the child if the travel occurs. Doi J. dealt with this issue in paragraphs 19 and 36 of his Reasons, finding both that the respondent has ties to Canada and is likely to return. The applicant then raises questions of irreparable harm concerning the respondent’s alleged religious practices and the risk of the child being mistreated physically or emotionally due to the respondent’s and her family’s religion. This was dealt with expressly by Doi J. in paragraph 25 of his Reasons and, once again, rejected on the facts.
[12] The applicant finally points to the dangers inherent in travel to Sudan and especially its capital Khartoum. Just several weeks ago, a tanker was bombed and exploded, killing a large number of people in the city. Doi J. dealt with this issue expressly and the tanker explosion in particular at paragraph 37 of his Reasons. He gave his basis for rejecting the applicant’s concerns. All of the issues of irreparable harm were considered and rejected on the facts by Doi J. Irreparable harm must be proven by specific evidence relating to specific risks and not just speculation. I grant that in the event that any of the postulated harms occur, they will amount to irreparable harm as defined in the case law. However, the risk of any of those issues occurring must be taken as low giving the findings made by Doi J. and the fact that there is no different evidentiary base put before the court today just one day later.
[13] As to the balance of convenience, as I noted above, in the event that the order is issued there will be no trip. If the order is refused there will be a trip. I am required to balance the relative harms and benefits of each. This is exactly what was done by Doi J. on the exact same evidence that is before me today. The only difference is there is no one here acting for the respondent. Nevertheless, in paragraphs 35 - 39 of his decision, Doi J. exercised his discretion. I see no basis in which to disagree with any of the conclusions that he made concerning the best interests of the child outweighing the evidence of risks and I agree with it.
[14] In all therefore, if there is a serious issue for appeal, there is barely one. If there is irreparable harm, it is highly speculative and the balance of convenience favours the best interest of the child being maintained. I am therefore not satisfied that the three-part test has been met.
[15] I also note that the applicant provided no notice of the motion to the respondent. This was inappropriate as there was no basis in fresh evidence to question the judge’s findings about the risk of untoward events or to enhance the urgency of this situation from that which pertained yesterday when counsel were speaking. I therefore required counsel to call counsel for the respondent to give brief oral notice. Counsel for the respondent was unavailable and therefore I heard the motion. Had I been inclined to grant relief however, I would have provided an urgent comeback hearing to ensure that the respondent would have had a say before any order that I might make would be put into effect. Overall, this motion was simply a repeat of the motion that was heard by Doi J. a few days ago.
[16] There was no basis for it to have been made on a without notice basis or to have been brought at all on the merits of the decision before Doi J.
F.L. MYERS J.
Date of Oral Reasons for Judgment: December 24, 2019 Date of Release: January 3, 2020
CITATION: Hamour v. Hamour, 2020 ONSC 28 DIVISIONAL COURT FILE NO.: 723/19 FS – 16-181-00 DATE: 20191224
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BABIKER MOHAMED ALI HAMOUR Applicant
– and –
ENTISAR ABDALLA AWOUDA HAMOUR Respondent
ORAL REASONS FOR JUDGMENT
F.L. MYERS J.
Date of Oral Reasons for Judgment: December 24, 2019 Date of Release: January 3, 2020