Court File and Parties

COURT FILE NO.: FC-11-585

DATE: 2012/11/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nadia Farhan, Applicant

AND

Faisal Farhan, Respondent

AND

Khazna Al-Shemmari, Moving Party

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Steven Fried, Counsel for the Moving Party

Virve Georgeson, Counsel for the Applicant and Respondent

HEARD: October 16 and 31, 2012

ENDORSEMENT ON MOTION BY NON-PARTY

[1] This is a motion by Khazna Al-Shemmari, maternal aunt to the children Salma Farhan, age 6, and Bader Farhan, age 5, to be made a party to these proceedings and to then have two custody orders previously made by this court set aside based on fraud. The custody orders are dated May 20, 2009 and March 23, 2011, and are in favour of the children’s father Faisal Farhan and the paternal aunt Nadia Farham respectively.

Issues

[2] There is no dispute that the children are currently in Kuwait and have been in the care of the moving party Ms. Al-Shemmari since January of 2011. As such, there is no serious issue as to whether she should be added as a party. Rule 7(4) of the Family Court Rules states that in cases involving children the person having care and control of the child shall be added as a party unless the court orders otherwise.

[3] So the only issues with respect to the orders in question then are:

1. Has fraud been established?
2. Can this court set aside a previous order of this court?
3. If the answer to the first two questions is yes, is setting the previous custody orders aside appropriate on the facts in this case?

Facts

[4] The facts are broken down under the headings ‘General’ and ‘Habitual Residence’.

General

[5] It is agreed that Faisal Farhan and Hana Al-Shemmari married in Kuwait on May 30, 2005. They had two children: Salma Farhan born […], 2006 and Bader Farhan born […], 2007. Both children were born in Kuwait.

[6] The father claims that the family moved to Canada in January of 2007, a little over three months after Salma was born. The mother then went back to Kuwait six months later in July and gave birth to Bader in […]. She came back to Canada with Bader in November and then, when Bader was three months old and Salma one year old, the father claims that she left Canada for good without the children and returned to Kuwait in December of 2007. He claims she left the children in his care. He claims that in April of 2010 he allowed the children to go to Kuwait to visit their mother and they have remained there ever since.

[7] The maternal aunt’s account is starkly different. She says that the mother and children have never lived in Canada and rather have lived in Kuwait their whole lives. There was one voluntary trip to Canada of approximately three weeks by the mother and Salma in 2007, and the father took Salma from Kuwait to Canada for about ten days in 2008 without the mother’s consent, but neither the mother nor the two children have ever lived in Canada. In other words, the father’s version is a complete fabrication.

[8] The facts summarized below are based on court proceedings in Ontario and Kuwait. It needs to be noted that the Kuwait proceedings are translated versions and although the father took issue at times with substance (i.e. he denies having received notice of certain court proceedings when the Kuwait orders say that he had been legally served), he conceded that the translations themselves were accurate:

1. The mother Hana Al-Shemmari brought divorce proceedings against the father Faisal Farhan in Kuwait in 2008. In 2008 she also brought a custody application for the children.
2. On February 5, 2009, the father Faisal Farhan brought his own application in Ottawa for custody of the children, alleging the scenario set out in paragraph [6] above and that the children were living with him. It needs to be noted that: a. His application made no mention that the mother had already brought an application for custody in Kuwait. b. The father swore that he served the mother with his application personally on February 7, 2009 in Kuwait, which is two days after it was issued in Canada. Ms. Al-Shemmari disputes that the mother was ever served, and notes the timing is suspect. The father has not provided any corroborating evidence, such as travel documents or flight records, to put that issue to rest.[^1] c. The father also swore that he served the mother personally at Andalous Block 11, Street no: 155 in Kuwait. He identified this as her address in his application. However, there is no official documentation from either party that indicates she ever lived there. To the contrary, the Kuwait documentation indicates that this was Mr. Farhan’s own address for service for a time after the parties separated.
3. On March 3, 2009 the mother obtained a custody order for the children in Kuwait. The father appealed.
4. On May 20, 2009 the court in Ontario granted custody to the father on the basis of his evidence that the children were with him in Canada and that the mother was in default. The court was not aware that there was a contrary custody proceeding/order in Kuwait.
5. On March 26, 2009 the father was ordered by the Kuwait court to pay child and spousal support.
6. On June 29, 2009 the Court of Appeal in Kuwait upheld the custody order in favour of the mother.
7. The Divorce in Kuwait was granted on November 15, 2009. The father appealed, but the Kuwait Court of Appeal later upheld the divorce decision.
8. On March 8, 2010 an order was made in Kuwait requiring the father to hand over the nationality certificates of the children and Bader’s passport to the mother, and gave the mother the entitlement to renew her children’s passports.
9. On June 15, 2010 the Kuwait Supreme Court granted the mother the right to make decisions regarding the children’s education.
10. On December 12, 2010 the father was sentenced to 10 years’ labour in Kuwait for a series of incidents that occurred between October, 2009 and March, 2010, namely forging documents to indicate that he left the country, stealing cash from the mother, attempting to kidnap the children, and assaulting the children’s caregiver during the abduction attempt.
11. On October 10, 2011 the father was convicted of two October, 2008 counts of stealing the mother’s vehicle registration and forging her signature to transfer her vehicle to him, and of two 2011 counts of stealing money from her and stealing her driver’s license. He was sentenced in absentia to five years’ imprisonment. Per the Kuwait reasons, the father forged the mother’s signature and had her vehicle transferred to him in 2008 but she was unaware of that until January of 2011 when he stole her driver’s license and she took steps to obtain a replacement.
12. On December 15, 2011 the father Faisal Farhan was convicted and sentenced to death in Kuwait for the murder of the mother Hanna Al-Shemmari. She was killed by an axe blow to her head outside of her apartment on January 9, 2011.
13. In February of 2011 Faisal Farhan was arrested in Canada for numerous fraud charges. The incidents were alleged to have occurred on January 17, 2011, only eight days after the mother was murdered in Kuwait. Mr. Farhan “fled” Kuwait, as Ms. Al-Shemmari put it, to Canada after the murder, and the charges include forging and use of a forged passport, using a disguise with intent to commit an indictable offence, and causing or attempting to cause persons to rely on a forged document. The forged documents included false birth certificates for his children. There were 18 charges in all. As part of his bail conditions Mr. Faisal was not permitted to communicate or associate, directly or indirectly, with his children.
14. On March 9, 2011 the father’s sister Nadia Farhan brought an application in this court for custody of the children. It needs to be noted that: a. The application alleged that the children had been resident in Ontario but had been with their mother in Kuwait with the father’s permission on an “extended visit” since April 2010. There was no indication to the court of a contest over the custody of the children or a refusal by the mother to ‘return’ the children. b. Ms. Farhan noted that the mother had “tragically passed away.” No mention was made of the murder conviction against the father in Kuwait. c. By the time of the application the children had been out of the father’s care for close to a year, yet the father and Nadia Farhan asserted that they were resident in Ontario. d. Although Khazna Al-Shemmari was identified in Nadia Farhan’s materials as the person having the children in her care, Ms. Al-Shemmari was not served with the application. e. The father and his sister Nadia Farham suggested that the children were simply stuck in Kuwait because they could not be returned to the father in Canada given his bail conditions, so a custody order in favour of the paternal aunt was needed to facilitate their return.
15. On March 23, 2011 this court granted custody of the children to Nadia Farhan.
16. On May 30, 2011 an order was made in the Kuwait court granting Khazna Al-Shemmari the right to obtain civil identifications and passports for the children and to enroll them in schools.
17. On August 15, 2011 an order was made by the Kuwait court removing the father from his natural guardianship of the children and appointing Khazna Al-Shemmari as their guardian.
18. On February 29, 2012 the Kuwait court dismissed Nadia Farhan’s application brought there for custody of the children. The Kuwait court appears to have accepted her arguments that Canadian family law applied and that the Ontario custody order in Nadia Farhan’s favour (one of the two that Ms. Al-Shemmari is now seeking to have set aside) was valid. However, in applying the Ontario law the court ruled that as the children had been living in Kuwait a change of circumstances affecting their best interests had occurred and the application was therefore rejected.
19. This motion was brought by Khazna Al-Shemmari returnable May 18, 2012. In response to it the father in his materials deposed a different set of facts than those that he relied on for the March 23, 2011 order. While he still maintained that the mother took the children for an extended visit in April of 2010, he indicated that two months later in June, 2010 he started demanding that the children be returned to him but that the mother refused. He has provided affidavits from family members who purportedly called the mother on his behalf to convince her to bring the children to him in Canada. As noted above this court was unaware that there might have been a contest over the custody of the children when it granted the March 23, 2011 order, or that the father’s position was that he had been trying to get the children from the mother for approximately eight months before her death.
20. Mr. Farhan’s other sister, Salimah Enad Farhan, has recently brought a custody application in Kuwait making many of the same arguments as did Nadia Farhan. A copy of the application is produced, although the date it was commenced is unclear.
21. On July 23, 2012 the father pled guilty in Ottawa to a number of the fraud related criminal charges noted above. His sentencing is expected to take place on December 11, 2012.

Habitual Residence of the Children

(i) The Evidence Provided by Faisal Farhan and Nadia Farhan

[10] According to the father Salma was born in Kuwait, came to Canada at four months old in January 2007, and prior to the ‘extended visit’ in April 2010 only went for one visit in Kuwait from April 20, 2008 to June 5, 2008. According to him Bader came to Canada in November 2007 at two months old, and never left until the said extended visit.

[11] Along with his own assertions, Mr. Farhan’s evidence supporting his version of the children’s habitual residence can be summarized as follows:

a) He presented a series of pictures of family members with a child purported to be Salma in Niagara Falls with a digital date noted on the pictures of November 28, 2007. He was not present when the pictures were taken. There was no evidence from the person who actually took the pictures. b) There was an affidavit from a Mr. Nogmash Dakhil who purported that he saw the father with the children twice in 2008 and twice in 2009. However, Mr. Dakhil subsequently swore another affidavit for Ms. Al-Shemmari recanting that evidence. The court was then told that he swore a third affidavit for the father purporting to reaffirm his first affidavit. As the father was relying on Mr. Dakhil’s evidence his counsel indicated an intention to call Mr. Dakhil as a witness, and leave was granted. However Mr. Dakhil was not subpoenaed and did not attend. Father’s counsel advised that he was unavailable as he had to attend to an ill spouse. In the circumstances I can give no weight at all to any of Mr. Dakhil’s affidavit evidence. c) There was a report from Children’s Hospital of Eastern Ontario (“CHEO”) about an emergency appointment for Salma on October 13, 2007. The father said he took Salma to that appointment. Ms. Al-Shemmari did not dispute this, as noted further below. d) Mr. Farhan managed to obtain health cards (without pictures) for the children and also put them on his Ontario Disability Support Program for payments. This is not evidence that the children were in Canada at the time or were physically identified for these purposes. Regarding the ODSP, Ms. Al-Shemmari suggests that Mr. Farhan committed fraud on the Ontario government by collecting larger disability payments to cover children that were not actually in his care. e) There is a handwritten note from Dr. Lise-Anne Robillard, undated, under the letterhead ‘CareMedics’ indicating simply “The above …” – and Salma’s name is typed in above the handwritten note – “… was seen in this clinic on November 9, 2009 and February 27, 2010.” As Ms. Al-Shemmari’s counsel points out, the original document is not filed, only a photocopy, and even on its face the note seems suspicious. The letterhead is askew from the typed information of the child below it. He suggests it has been doctored, consistent with the father being a convicted forger in both Canada and Kuwait. f) Nadia Farhan filed an affidavit saying that she lived with her brother for the past three years and adds somewhat vaguely “[w]hen the children lived in Canada they lived at this same house.” g) Lastly there is a letter from Mr. Farhan’s counsel in the previous application, François Kabemba, indicating that he saw Mr. Farhan in his office with his children two times in 2009.

(ii) The Evidence Provided by Khazna Al-Shemmeri

[12] The position of Ms. Al-Shemmari is that, except for the visit of Salma to Canada in 2007 and her attendance described as a kidnapping in 2008, both brief, the children have never been in Canada let alone resided here.

[13] The evidence she provides to support this prior to April 10, 2010 (the father admits that the children have been in Kuwait since then) includes:

a. Salma’s medical records showing that she underwent testing in Kuwait on November 14, 2007, February 17, 2008, and April 29, 2008. Mr. Farhan alleges that he took Salma on a trip to Kuwait from April 20 to June 5, 2008, for the latter attendance. b. Regarding Bader, a statement from a Dr. Fadilia Ali Aseeri, indicating that he was registered in the Maneera Al Ayar clinic as a patient since December 28, 2007. There is no evidence however of any attendances at the clinic prior to April, 2010. c. An immunization history is produced that says “Bader” but it seems to start on July 3, 2007 prior to Bader’s birth. Even if that is a translation mistake, the Court cannot give it any weight. d. There is a letter from Khaled Ahmed Al Bader of TQ Logistics Services W.L.L. indicating that Faisal Farhan worked for that company in Kuwait as a trainer from November 19, 2005 until the date of the letter, July 13, 2008. This contradicts Mr. Farhan’s version that both he and the children had been living in Canada since November, 2007 and that a trip to Kuwait was necessary for Salma’s medical attendance on April 29, 2008. e. Statements from Meweled Girma Aberned (an assistant caregiver), Ali Mohamed Bour (friend of the mother), and Ahmed Mubarak Ajman (housekeeper), as well as Ms. Al-Shemmari’s own sworn testimony that the children have been resident in Kuwait their whole lives.

(iii) Kuwait Entry/Exit Records and CHEO Attendance

[14] There were two critical pieces of evidence regarding the children’s residence.

[15] Ms. Al-Shemmari provided entry/exit records and reports from the Kuwait government (Ministry of Interior, Ports Security Affairs Section) with respect to the mother, Salma, and Bader. There was no evidence from the Canadian passport, consulate, or immigration authorities. Indeed, the evidence was that Ms. Al-Shemmari’s counsel had diligently tried to obtain the Canadian equivalents and more, but was unsuccessful as the father refused to provide the required written consents. As the evidence from the Canadian sources might have been conclusive to the resolution of the factual dispute, I asked Mr. Farhan at the outset if he was now prepared to provide the requested consents. I indicated that if so, I was prepared to grant an adjournment until the information was available. He declined, and both counsel therefore elected to proceed without further documentation. In the circumstances I draw an adverse inference from Mr. Farhan’s refusal to facilitate this disclosure and give full weight to the Kuwait evidence provided by Ms. Al-Shemmari.

[16] The entry/exit information from Kuwait establishes the following. Bader has had no entry or exit movement. Given that it is agreed that Bader was born in Kuwait and is there now, this supports the conclusion that he has never been in Canada during his lifetime.

[17] Regarding the mother, as noted, the father’s position is that she moved to Canada in January, 2007, went back to Kuwait in July to give birth to Bader, came back to Canada in […], 2007, and then returned to Kuwait permanently in December, 2007. Yet the entry/exit records show that since 2006 she only left Kuwait twice, for two days in April of 2007, and from October 11, 2007 to November 3, 2007.

[18] The records regarding Salma indicate that she left Kuwait for two days in April, 2007, next she left Kuwait on October 11, 2007 and returned on November 3, 2007 (23 days), and lastly she left Kuwait on June 4, 2008 and returned June 14, 2008. The first two movements match those of her mother.

[19] Ms. Al-Shemmari’s position is that she agrees that Salma and the mother spent time together in Canada in 2007. She indicates that Salma’s ten-day exit in 2008 without her mother was when she was kidnapped by her father and subsequently returned. While there is reference to the latter in the Kuwait materials (a statement from the mother’s lawyer regarding the alleged abduction), there was no direct evidence of a criminal charge against the father, and the child was quickly returned to Kuwait. Nothing turns on these ten days for the purposes of this hearing.

[20] There is no doubt that the entry/exit records from Kuwait directly contradict the testimony of both Faisal Farhan and Nadia Farhan in all respects regarding the children’s residence since their births.

[21] The other critical piece of evidence was Salma’s Emergency Department attendance at CHEO on October 13, 2007. As indicated above, and this is important, it was the father himself who produced this record putting it forward as evidence that the child was habitually resident with him in Ontario. However, it needs to be noted that:

1. Salma was seen for diarrhea and fever. In the background narrative the attending physician wrote “H/O coming to Canada 2 days ago from Kuwait.” The father’s counsel proposed that ‘H/O’ is a medical acronym meaning ‘history of’. In other words, the father’s own evidence is that he took the child to the hospital on October 13, 2007, and it appears that when he did he told the doctor himself that Salma had come to Canada from Kuwait two days earlier.
2. The medical record corroborates the entry/exit records which indicate that Salma left Kuwait on October 11, 2007, approximately two days earlier.
3. This medical record was made before the parties separated, and before there was an issue about the children’s residence. It directly contradicts the father’s affidavit sworn on June 27, 2012 wherein he deposed that Salma lived in Canada and never left, even for a visit, from January 2007 until April 20, 2008.

Issue One – Has Fraud Been Established?

[22] Campbell J. in Dodge v. Dodge, 2007 CanLII 80075 (ON SC), [2007] O.J. No. 3888 (SCJ), is often quoted for the definition of civil fraud as follows:

58 In Derry v. Peek Lord Herschell summarized the authorities on civil fraud: [...] fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth: Derry v. Peek (1889), 14 App. Cas. 337 (H.L.).

[23] The sole piece of seemingly solid evidence that father has that connects the children to Canada is that of the lawyer François Kabemba who said that he saw Mr. Farhan in his office with his children two times in 2009.

[24] A newspaper report of Mr. Farhan’s criminal proceedings in Canada was admitted into evidence unopposed, presumably to avoid the need for disclosure from that process. As part of the narrative of the charges, Mr. Farhan is noted to have twice provided false pictures in applying for passports for Salma and Bader. The first time he did this by using photos of a niece and an unknown boy. The second time he used pictures of two unknown children. Given Mr. Farhan’s propensity for fraud, Ms. Al-Shemmari suggests that Mr. Farhan did in fact attended the lawyer’s office in furtherance of his fraudulent application for custody, but as Salma and Bader were in Kuwait he took two borrowed children of roughly the same age with him for appearances.

[25] That makes sense as the balance of the remaining evidence overwhelmingly supports the conclusion that Salma and Bader were habitually resident in Kuwait when both the May 20, 2009 and March 23, 2011 orders were made. While the father’s counsel made a rather broad submission that all official documentation from the Kuwait government and courts needed to be viewed with skepticism given an alleged tendency for corruption in that country, I was not swayed by that argument. Ms. Al-Shemmari met the onus as the moving party of establishing the requirements for civil fraud on a balance of probabilities. When the evidence was led regarding the entry/exit records from Kuwait, the evidentiary onus shifted to the father to present some evidence showing those records were inaccurate or could not be relied on. Further, his main piece of evidence, one that there was no opportunity to manipulate by forgery or fraud, namely the CHEO record, supported the accuracy of Kuwait entry/exit records and directly contradicted his own position. Neither the medical record from CHEO nor the entry/exit records were seriously challenged, and on these alone I find that the test for civil fraud has been met on a balance of probabilities.

[26] Along the same lines, the letters from Mr. Farhan’s employer and the criminal proceedings placing him in Kuwait at times when by his account he was living in Canada with the children further supports Ms. Al-Shemmari’s position and were not seriously challenged. While the evidence of Mr. Kabemba raised a serious credibility issue, I find that given the father’s propensity for fraud and the clear evidence otherwise that the children were not in Canada at any time in 2009, there must be some other explanation such as the one as suggested by Ms. Al-Shemmari. I note that other than the Farhans themselves Mr. Kabemba is the only person to claim ever having seen Bader in Canada.

[27] Looking at the legal test, the conclusion is unavoidable that Mr. Farhan knew that the children were not resident in Canada in 2009 when he represented otherwise to the court for the purpose of obtaining a custody order. That order in turn was a critical factor in the granting of the 2011 order. Further, there can be no serious doubt that both the father and his sister knew in 2011 that the children had not lived in Canada as they alleged, were not on an extended visit with the father’s permission, and that the issue of custody of the children was a live issue and not simply a step needed to repatriate stranded children to Canada.

Issue 2 – Can this Court Set aside a previous Order of this Court?

[28] Ms. Al-Shemmari relies on Rule 25(19) of the Family Court Rules which reads as follows:

25(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[29] However, she is not seeking to have me ‘change’ the order as contemplated by that rule. Indeed, the basic premise of her argument is that the court in the past never had jurisdiction to make a custody order, and that still stands today. So there is no substitute order, such as granting custody to her under Ontario law, to be made. She instead asks to have the previous orders set aside.

[30] It is established that I cannot set aside a previous order of this court by relying on Rule 25(19): Dicaula v. Mastrogiacomo, 2006 CanLII 11928 (ON SCDC), [2006] O.J. No. 1504 (Div.Ct.). However, the setting aside of an order is available by either resort to the court’s inherent jurisdiction (see West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (S.C.J.)) or by reference to the Rules of Civil Procedure: see Dodge v. Dodge, supra, Boivin v. Smith (2010), 2010 ONCJ 411, 92 R.F.L. (6th) 432 (O.C.J.), and Mayerovitch v. Breslin, 2012 ONSC 5192, [2012] O.J. No. 4870 (SCJ). As Bondy J. suggests at para. 53-8 in Boivin v. Smith, the procedural pathway provided by reference to the Rules of Civil Procedure makes resort to the court’s inherent jurisdiction unnecessary.

[31] I find that I have authority to set aside the previous order in the interests of justice relying by analogy on Rule 59.06(2)(a) the Rules of Civil Procedure which reads as follows:

59.06(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; …

may make a motion in the proceeding for the relief claimed.

Issue Three – Is Setting Aside the Previous Orders Appropriate on the Facts of this Case?

[32] The often cited procedural pathway for family law cases – the nine essential underlying principles that must be followed by the court to decide to set aside an order as a result of fraud – are also cited by Campbell J. in Dodge v. Dodge, supra, (paragraph 57, emphasis removed):

1. The fraud alleged must be proved on a reasonable balance of probability. The more serious the fraud, the more cogent the evidence required.
2. The fraud must be material, going to the foundation of the case.
3. The evidence of fraud must not have been known at the time of trial by the party seeking to rely on it.
4. The unsuccessful trial party is exposed to a test of due or reasonable diligence.
5. The tests are more stringent if the fraud is of a non-party and the successful party at trial is not connected with the fraud alleged.
6. The due diligence test is objective. The questions are what the party knew, and what the party ought to have known.
7. Delay will defeat a motion to set aside a trial judgment under rule 59.06 [of the Rules of Civil Procedure].
8. Relief under rule 59.06 is discretionary. The conduct of the moving party is relevant.
9. The central question is as stated in Wentworth v. Rogers (No. 5) [(1986), 6 N.S.W.L.R. 534 (OCA)], at 538: “... it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.”

[33] I am not going to belabor each of the points given the facts as set out above. I note that the ‘central question’ in para. 9 is a shortened restatement of principles 1 through 8.

[34] Regarding the critical points 1 and 2, as noted fraud has been proved on a balance of probabilities. Further, it is material fraud. It goes to the very foundation of the custody orders granted, namely the habitual residence of the children and the Ontario court’s jurisdiction. It could not have been be more material.

[35] As Ms. Al-Shemmari and the mother were not served with the proceedings that led to the orders in question, they could not have known of the fraud at the time to address it. The first time the existence and impact of the Canadian orders are noted is when Ms. Nadia Farhan applied for custody in Kuwait relying on them. This motion was brought several months afterwards. Given the distances and language barriers I do not view this as an unreasonable delay. As such I do not see any issue at all with the principles 3, 4, 6, 7 and 8, the latter as it relates to the conduct of the moving party.

[36] Principle 5 does not apply as both Mr. Farhan and his sister are parties.

[37] Principle 8 clarifies that setting aside an order is ultimately a discretionary remedy. I see an obvious need to exercise my discretion in this case. There is a problem when two different states each have different orders dealing with the same children. The Ontario court orders improperly obtained should not survive to complicate the lives and stability of Salma and Bader. I am concerned as these orders have already been relied on by Mr. Farhan’s family in the Kuwait courts to attempt to overturn its custody orders. Further, the risks to the children of a dispute over their custody should they ever leave Kuwait makes it important that only the proper order survives.

[38] I find in assessing the principles as set out in Dodge v. Dodge, supra, that the test for setting aside the orders as requested is met.

Other Issue

[39] Along with the setting aside of the two orders, Ms. Al-Shemmari also sought an order that the father and his sister be prohibited from bringing other proceedings in Ontario relating to the children. That request was not dealt with at any length in argument, and the legal basis for such an order has not been established.

Decision

[40] For the reasons given, Khazna Al-Shemmari is added as a party to this proceeding and the following two orders of this court obtained by fraud are hereby set aside:

1. The order of Lalonde J. dated March 20, 2009, in court file no. FC-09-279-00, granting custody of the children Salma Faisal Enad Farhan, born […], 2006, and Bader Faisal Enad Farhan, born […], 2007, to Faisal Enad Farhan.
2. The order of Ratushny J. dated March 23, 2011 in this file granting custody of the said children to Nadia Enad Farhan.

Costs

[41] Costs shall be payable by Faisal Farhan and Nadia Farhan to Khazna Al-Shemmari. If the parties cannot agree on the amount they can make written submissions within 30 days, five pages maximum.

Mr. Justice Timothy Minnema

Date: November 29, 2012

COURT FILE NO.: FC-11-585

DATE: 2012/11/29

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Nadia Farhan, Applicant

AND

Faisal Farhan, Respondent

AND

Khazna Al-Shemmari, Moving Party

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Steven Fried, Counsel for the Moving Party

Virve Georgeson, Counsel for the Applicant and Respondent

ENDORSEMENT ON MOTION BY NON-PARTY

Mr. Justice Timothy Minnema

Released: November 29, 2012

[^1]: While the Family Court Rules have been changed so that now a party is not permitted to personally serve the other party with the originating process (Rule 6(4.1)), that prohibition was not yet in place in 2009.