CITATION: Gillani v. Jamali, 2021 ONSC 3069
DIVISIONAL COURT FILE NO.: 612/2020
DATE: 2021/04/27
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Kristjanson and Ryan Bell JJ.
BETWEEN:
Hashim Jawad Gillani
Appellant
– and –
Scherazade Jamali
Respondent
Michael J. Stangarone and Kristy Maurina, for the Appellant
Farah Hudani and Sydney Bunting, for the Respondent
HEARD by videoconference: March 31, 2021
H. Sachs J.
Introduction
[1] This appeal concerns the enforcement of a consent final order made by the Supreme Court of Pakistan dated October 16, 2018 (the “Pakistan Order”). Pursuant to the terms of the Pakistan Order, the Respondent (the “Mother”) was given custody of the child of the marriage, Hasan, born May 21, 2009. The Appellant (the “Father”) was given access to Hasan every alternate weekend. The Pakistan Order contains a provision stating that if the Mother wishes to travel with Hasan outside of Pakistan, she requires the permission of the Pakistan Court.
[2] On April 19, 2020, without the Father’s knowledge and consent, the Mother left Pakistan with Hasan and went to Canada. She did so without the permission of the Pakistan Court. Her intention at the time was to settle with Hasan in British Columbia . However, due to the COVID-19 pandemic, the only flight she could travel on from Pakistan to Canada was a flight that took her to Toronto. She remained in Toronto for three months for pandemic-related reasons and then travelled with Hasan to British Columbia.
[3] In September of 2020 the Father discovered that the Mother had left Pakistan with Hasan and that they had taken a flight to Toronto. When he did so, he commenced an application in Ontario seeking the enforcement of the Pakistan Order and an order requiring that Hasan be returned to Pakistan. By the time the Father found out about the child’s removal to Ontario and commenced his application in Ontario, the Mother and Hasan had already left Ontario and were residing in British Columbia. The Father resides in Kuwait.
[4] The Father’s application was heard by P.A. Douglas J. On November 27, 2020 he made an order (the “Ontario Order”) on a final basis that:
The Province of Ontario has jurisdiction under s. 40(a) of the Children’s Law Reform Act.
This Court declines to recognize the Order of the Supreme Court of Pakistan dated October 26, 2018 for enforcement purposes.
Upon commencement of proceedings in the Province of British Columbia to address issues of custody and access regarding the child of the marriage, namely Hassan (sic) Syed Gillani born May 21, 2009 (“Hasan”), or to enforce the Order of the Supreme Court of Pakistan dated October 26, 2018, this proceeding and all Orders made herein shall be stayed pursuant to s. 40(2) of the Children’s Law Reform Act.
[5] The Ontario Order also provides that on a temporary basis the Father is to have daily access to the child by video or telephone and that the child’s passport and other identification documents are to remain in the hands of the Mother’s counsel or such other third party as the parties may agree upon or the Court may order.
[6] This is an appeal from the Ontario Order. One of the bases for the appeal is that:
The Honourable Justice erred in law by making a final Order declining to recognize and enforce the Pakistan Order while staying the Ontario proceeding and finding that British Columbia was the more appropriate forum to determine the very issue of whether to enforce the Pakistan court Order, an issue already decided on a final basis by the Honourable Justice.
The Honourable Justice erred in law in creating a multiplicity of proceedings leaving the parties to litigate the outstanding issues in two jurisdictions on a final basis. (Notice of Appeal, paras. 16 and 18).
[7] I agree that the Ontario Order appears contradictory on its face and invites a multiplicity of proceedings on the same issue. This raises the spectre of inconsistent judgments, which is antithetical to the interests of justice. For this reason I would allow the appeal, set aside the Ontario Order and allow the parties to commence proceedings in British Columbia to seek the enforcement of the Pakistan Order and such other relief concerning the custody and access of Hasan as may be appropriate.
The Application Judge’s Decision
[8] Before the Application Judge, the Father sought a declaration that Hasan had been wrongfully removed from Pakistan, an order that Hasan immediately be returned to Pakistan, in the alternative an order that Hasan be returned to Kuwait, an order granting the Father temporary custody of Hasan, an order for police enforcement of any order made pursuant to the application, an order that the Mother pay the travel costs of the child and any witnesses, and an order recognizing and enforcing the Pakistan Order. The Mother sought to stay the Father’s application in Ontario, a declaration that the appropriate jurisdiction to litigate the disputes was British Columbia, an order declining to take jurisdiction in Ontario, and a temporary restraining order.
[9] One of the facts that was contested before the Application Judge was the Mother’s residential intention when she left Pakistan. Did she intend to reside in Ontario or was it always her intention to go to British Columbia? The Application Judge accepted the Mother’s evidence on this issue as a fact for the purposes of the application before him. He found that he had “no reason to quarrel” with the Mother’s evidence that both her journey to Ontario and her stay here were pandemic- related.
[10] The Application Judge confirmed that neither counsel had submitted that he should receive oral testimony before deciding the issues before him. He also found that “there was sufficient consistency on the material facts to permit adjudication without the benefit of oral testimony.”
[11] The first decision the Application Judge had to make was whether to take jurisdiction over the matter. Pursuant to s. 25 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), a court that has jurisdiction may decline to exercise that jurisdiction “where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”
[12] The Application Judge found that, even though Hasan was not present in Ontario, he had jurisdiction under s. 40 of the CLRA to decide the matter. Under s. 40, a court that “is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario” may do one or more of the following: (1) make an interim order regarding custody or access of the child; (2) stay the application subject to conditions, including a condition that a party to the application promptly commence a similar application before an extra-provincial tribunal; or (3) order the return of the child to such place as the court considers appropriate. The Application Judge found that, while Hasan was not being wrongfully retained in Ontario, he had been wrongfully removed to Ontario in violation of the terms of the Pakistan Order.
[13] Once he decided that Hasan had been wrongfully removed to Ontario, s. 41 of the CLRA required the Application Judge to recognize the Pakistan Order, unless he could be satisfied that one or more of five conditions existed. In this case, the Application Judge found that the only condition that applied was whether “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.”: CLRA, s. 41(1)(c).
[14] The Application Judge reviewed the evidence on this point (which included expert evidence from both parties about the law in Pakistan dealing with custody and access) and found that “the law of Pakistan did not require the extra-provincial tribunal in Pakistan to have regard for the best interests of the children.”
[15] The Application Judge went on to find that the more appropriate jurisdiction for the matter to be decided was British Columbia. He did so for a number of reasons, including the fact that Hasan’s connection to Ontario “was fleeting” and “in transit to BC”; that Hasan had been residing and going to school in British Columbia for over four months; and that his mother was there, with the intention of establishing a residence there. In making his order as to the more appropriate jurisdiction, the Application Judge recognized that this would create “a distinct likelihood of further proceedings, violating a preference against a multiplicity of proceedings.”
[16] The Application Judge then considered whether he should make some temporary orders that would stay in place while the proceedings got started in British Columbia. In this regard the Mother was seeking a restraining order against the Father, which the Application Judge declined to grant. Thus, the only temporary orders he made were the ones detailed earlier in these reasons, providing for access to the Father and the retention of Hasan’s identification by an outside third party.
The Position of the Parties on this Appeal
[17] The Father’s position on this appeal is that the Application Judge “committed fundamental, palpable and overriding errors of both law and fact.” According to the Father, the Application Judge should have recognized the Pakistan Order and ordered that Hasan be returned to Pakistan. As noted, the Father also maintains that if the Application Judge was going to find that British Columbia was the more appropriate jurisdiction, he should not have made a final “and extremely prejudicial” order declining to recognize the Pakistan Order.
[18] The Mother, on the other hand, argues that the Application Judge made no error when he refused to enforce the Pakistan Order and when he found that British Columbia was the more appropriate jurisdiction to determine the parenting issues.
Analysis and Conclusion
[19] I agree with the Father that the Application Judge’s Order is inherently contradictory, prejudicial and contrary to the interests of justice. The Application Judge, faced with the Father’s application, was entitled to take jurisdiction under s. 40 of the CLRA and to make the determination that he did under s. 41 of the CLRA. He was also entitled to find that British Columbia was the more appropriate forum in which to litigate the issues between the parties. Where he erred in law was in both finding that British Columbia was the more appropriate forum to litigate the issues between the parties, including the issue of whether the Pakistan Order should be recognized and enforced, and in making a final order that the Pakistan Order should not be enforced. By doing so, he was inviting not just the possibility of a multiplicity of proceedings, but the possibility of inconsistent findings by two common law jurisdictions in Canada with very similar laws governing the issues in dispute. Such a possibility runs the risk of bringing the administration of justice in Canada into disrepute.
[20] The Application Judge’s Order was made under Part III of the CLRA. Section 19 of the CLRA sets out the purposes of Part III, one of which is:
(b) to recognize the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to 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.
[21] One of the underlying purposes behind this rule and any rule focused on avoiding a multiplicity of proceedings on the same issue is the risk posed of enforcing multiple conflicting judgments from different jurisdictions: Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 105; Kanafani v. Abdalla, 2010 ONCJ 185, at para. 81. In this case, for example, if the British Columbia court were to issue a final order recognizing the Pakistan Order, the parties would be faced with two conflicting final orders from two different Canadian jurisdictions. Which one is to be recognized and enforced? Further, if the British Columbia court were to make findings that contradicted the Application Judge’s findings about the role of best interests in Pakistani law, how would this affect the repute of the administration of justice in Canada?
[22] There may be situations where the possibility of inconsistent judgments cannot be avoided, but this was not one of them. There was no reason why an order needed to be made on the enforceability of the Pakistan Order in Ontario, if the Application Judge was going to leave the matter to be determined by the British Columbia courts.
[23] Hasan’s connection with Ontario was transitory. He and the Mother are now in British Columbia with an intention to make that province their home, and the Father is not in Ontario. Given these facts, the Application Judge did not err in finding that British Columbia was the more appropriate jurisdiction in which to conduct these proceedings. Apart from anything else, an order from the jurisdiction in which the child and Mother reside will be more easily enforced in that jurisdiction. Where the Application Judge erred was in taking jurisdiction in Ontario when he had already determined that British Columbia was the more appropriate jurisdiction.
[24] Thus, I would allow the appeal, set aside the Ontario Order, and make an order that Ontario is declining jurisdiction pursuant to s. 25 of the CLRA because it is more appropriate that jurisdiction be exercised by the British Columbia courts. The parties are now free to commence whatever proceedings they wish in British Columbia, including a proceeding to recognize and enforce the Pakistan Order. By setting aside the Ontario Order we are allowing the court in British Columbia to make its own decision without being constrained in any way by the Ontario Order.
[25] While I have allowed the Father’s appeal, the result is in accordance with the Mother’s position before the Application Judge. In view of this, I would make no order as to costs.
H. Sachs J.
I agree _______________________________
Kristjanson J.
I agree _______________________________
Ryan Bell J.
Released: April 27, 2021
CITATION: Gillani v. Jamali, 2021 ONSC 3069
DIVISIONAL COURT FILE NO.: 612/2020
DATE: 2021/04/27
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Kristjanson and Ryan Bell JJ.
BETWEEN:
Hashim Jawad Gillani
Appellant
– and –
Scherazade Jamali
Respondent
REASONS FOR JUDGMENT
H. SACHS J.
Released: April 27, 2021