CITATION: Matrook v. Bani-Ahmad, 2015 ONSC 1620

COURT FILE NO.: FS-14-1414-00

DATE: 20150313

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fidaa Matrook, Applicant

AND:

Mohammed Mostafa Bani-Ahmad, Respondent

BEFORE: Andre, J

COUNSEL: R.P. Zigler, for the Applicants

Dani Z. Frodis, for the Respondent

HEARD: December 22, 2014

ENDORSEMENT

The applicant, Mrs. Fidaa Matrook (“Mrs. Matrook”), brings a motion for custody, support and an equalization of net property following the breakdown of her marriage with the respondent, Mr. Mohammed Mostafa Bani-Ahmad (“Mr. Bani-Ahmed”). Mr. Bani-Ahmad, as a preliminary matter, seeks a judicial stay of the proceedings on the ground that this court has no jurisdiction to deal with the issues raised in Mrs. Matrook’s motion. Mrs. Matrook has invited the court to make a determination of the jurisdiction issue as it relates to custody of the youngest child of the marriage and to postpone the adjudication of the support and property issues.

I must therefore decide whether or not I have jurisdiction to deal with the custody issue in this matter.

BACKGROUND FACTS

[1] Mr. Bani-Ahmad and Mrs. Matrook were married in Canada in 1991. They initially separated on October 14, 2010, while both lived in Jordan.

[2] The parties have four children; namely Beder D.O.B May 20, 1995, Amear D.O.B. Dec 8, 1996, Raian, D.O.B July 9, 1999 and Daneen who was born on December 29, 2005.

[3] Mrs. Matrook and Mr. Bani-Ahmad moved to Jordan in February, 2009. Mrs. Matrook left the matrimonial house with the children in October, 2010.

[4] Mr. Bani-Ahmad has deposed that Daneen lived with him following the couple’s separation in 2010. He has filed a number of affidavits sworn by persons in Jordan corroborating his evidence. The OCL investigated the family and its report stated that all four children of the marriage indicated that Mrs. Matrook was Daneen’s primary caregiver in Jordan.

[5] Furthermore, on March 26, 2013, Mrs. Matrook obtained what under Jordanian law is the equivalent of a custody order for Daneen. Mr. Bani-Ahmad remarried on February 10, 2011 in Jordan. On November 11, 2012 his new wife gave birth to a baby boy.

[6] On May 14, 2013, the parties were divorced in Jordan.

[7] In June 2013, Mr. Bani-Ahmad travelled to Canada with Amear and Raian. Beder and Daneen travelled to Canada with Mrs. Matrook one month later. Mrs. Matrook decided to remain in Canada with Raian and Daneen.

[8] Mr. Bani-Ahmad however, returned to Jordan with the two children without the knowledge or consent of Mrs. Matrook.

[9] Mrs. Matrook travelled to Jordan in early 2014 and on February 4, 2014, returned to Canada with Daneen. Mr. Bani-Ahmad seeks the return of Daneen to Jordan where he continues to reside.

[10] In May, 2014, Mrs. Matrook commenced her application in this court for custody, support and equalization of net family property.

ASSAULTIVE BEHAVIOUR

[11] Mrs. Matrook has filed numerous complaints of assaultive behaviour against Mr. Bani- Ahmad, going back to 2007. The allegations involved choking and dragging.

[12] On February 20, 2007, Mrs. Matrook went to a hospital and complained that Mr. Bani-Ahmad had assaulted her. She was treated for injuries to her neck, forehead and left eye.

[13] On March 6, 2008, Bader advised his school authorities that his father had struck him on his face, stomach, and arms.

[14] In 2007, Mrs. Matrook alleged that Mr. Bani-Ahmad had assaulted her. The Peel Police subsequently charged him with a number of criminal charges. In his factum, Mr. Bani- Ahmad noted that he “resolved the criminal charges by way of a plea bargain as he was advised this would be most expeditious.”

[15] On November 5, 2008, Bader explained to a person at his school that his father had repeatedly punched him the previous evening.

WISHES OF THE CHILDREN

[16] Amear, Beder, Raian and Daneen have all indicated to the OCL’s clinical investigator, Shannon Deacon, that they wish to remain in Canada.

SUBMISSIONS OF THE APPLICANTS

[17] Mrs. Matrook’s counsel submits that there are three legal bases which give this court jurisdiction to deal with the issue of custody of Daneen. These are:

i. Section 22(1)(b) of the Children’s Law Reform Act (CLRA) which provides that the court has jurisdiction to adjudicate custody of a child who is not a habitual resident in Ontario at the commencement of the application if all the following conditions are satisfied:

a) The child is physically present in Ontario at the commencement of the application for the order;

b) Substantial evidence concerning the best interests of the child is available in Ontario;

c) That no application for custody or access to the child is pending before an extra provincial tribunal in another place where the child is habitually resident;

d) That no extra provincial order has been recognized by a court in Ontario;

e) The child has a real and substantial connection to Ontario;

f) That on the balance of convenience it is appropriate for jurisdiction to be exercised in Ontario.

ii. Section 23 (b)(iii) of the CLRA provides that despite s.22 of the CLRA, a court may nevertheless exercise its jurisdiction to make a custody order where the child is physically present in Ontario and the court is satisfied on a balance of probabilities that a child would suffer serious harm if the child is removed from Ontario.

iii. Section 3(1) of the Divorce Act, provides that a court may grant corollary relief if a spouse is “ordinarily resident” in Canada for more than one year prior to the commencement of proceedings. Mrs. Matrook takes the position that on the basis of the representations of Mr. Bani-Ahmad’s tax and corporate documentation and his significant connections to Canada, Mr. Bani-Ahmad was ordinarily resident in Canada.

iv. Interim powers of court

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. The condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. Such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. R.S.O. 1990, c. C.12, s. 40.

[18] Mr. Bani-Ahmad submits that pursuant to s.22(1)(b) of the CLRA, the Ontario court has no jurisdiction over custody or access given that:

a. Daneen was not habitually resident in Ontario when Mrs. Matrook commenced her Application as:

i. she was not residing in Ontario with both parents;

ii. she was not residing in Ontario with Fidaa with Mohammed’s consent; and

iii. Fidaa’s abduction of Daneen did not alter her habitual residence.

b. Not all of the six criteria required in order for the court to take jurisdiction where a child is not habitually resident in Ontario, have been met as:

i. most of the evidence regarding Daneen’s best interests is in Jordan,

ii. there are ongoing proceedings, which include claims for custody in Jordan; and

iii. given that the children’s friends, school teachers, doctors, and grandmothers are in Jordan, on the balance of convenience, Jordan is the more appropriate jurisdiction.

c. It would be contrary to the purposes of section 22(1) of the CLRA to allow Mrs. Matrook to proceed with a custody application in Ontario when she abducted Daneen from Jordan to avoid ongoing legal proceedings there.

LEGAL PRINCIPLES

[19] The CLRA provides four answers for an Ontario court to exercise its jurisdiction to make an order for custody of a child.

First, under s. 22(1) (a) of the CLRA, an Ontario court may make an order for custody of a child where the child is “habitually resident” in Ontario

Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requires are met.

Third, under s. 23, a court has jurisdiction to make an order for custody, where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances out in the Act.

Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA

Dovigi v. Razi, 2012 ONCA 36, [2012] O.J. No. 2418 (Ont. C.A) at pages 10-13.

[20] Section 22(2) of the CLRA defines “habitually resident” as follows:

To be “habitually resident” in Ontario is defined by s.22(2) of the Act as follows:

(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

I with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

[21] Section 23(3) of the CLRA provides that abduction does not alter the “habitual residence” of a child.

ANALYSIS

[22] Ms. Matrook commenced this application in May 2014, three months after returning to Canada with Daneen. Before February 2014, she had been living in Jordan since 2009. To that extent, Daneen was habitually resident in Jordan, not Ontario, when Mrs. Matrook commenced her application for custody.

[23] In assessing whether the Ontario court has jurisdiction to deal with the custody of Daneen, I must consider the applicability of the conditions under s. 22(1)(b) of the CLRA. I will deal with the subclauses in order.

• SUBCLAUSE 22(1)(b)(i)

There is no dispute that Daneen was physically present in Ontario at the commencement of Mrs. Matrook’s application.

• SUBCLAUSE 22(1)(b)ii)

Mrs. Matrook resides in Ontario, with three of her four children. The OCL report indicates that all three children and the fourth child in Jordan, wish to live in Ontario. With the exception of Raian, all the children attend school in Ontario. The OCL, CAS, Peel Police Services and local school authorities can all provide substantial evidence about the best interests of the children. Both Bader and Amear, who are 19 years old and 18 years old respectively, can also provide and has already provided substantial evidence about the best interests of Daneen.

• SUBCLAUSE 22(1)(b)(iii)

I am satisfied on the evidence that there are no pending applications for custody of or access to the child in Jordan.

Ms. Matrook obtained the Jordanian equivalent of custody of Daneen but this is not ‘pending’ within the meaning of this section:

Similarly, Mr. Bani-Ahmad made a complaint to the Jordanian authorities about Ms. Matrook taking Daneen to Canada. However, this complaint, in my view, does not qualify as a pending application for custody of or access to Daneen pursuant to s.22(1)(b)(ii) of the CLRA. There was no pending application when Mrs. Matrook commenced her application in May 2014.

• SUBCLAUSE 22(1)(b)(iv)

There is no such extra-provincial court order.

• SUBCLAUSE 22(1)(b)(iv)

In my view, the balance of convenience supports a conclusion that jurisdiction should be exercised in Ontario, rather than Jordan. Virtually all the witnesses who can provide evidence about Daneen’s best interests, including educators, social workers, assessors and family members including many of Mr. Bani-Ahmad’s own siblings reside in Ontario. In any event, Jordanian law does not recognize the best interests of the child as the paramount consideration in the determination of the issue of custody of Daneen.

• SUBCLAUSE 22(1)(b)(v)

Daneen was born in Ontario where her parents lived for approximately nineteen years before returning to Jordan.

Furthermore, Daneen has extensive family connections in Ontario. Three of Mrs. Matrook’s brothers and sisters and five of Mr. Bani-Ahmad’s siblings reside in the Greater Toronto Area (GTA). Daneen also has twenty cousins living within the GTA. She has undoubtedly made many friends at her school. She has the support of her siblings who also live in Ontario. Mr. Bani-Ahmad also has substantial business interests in Ontario given that he co-owns a string of business interests, from which he reportedly earns a substantial income. Additionally, Mr. Bani-Ahmad advised the Canadian Revenue Agency (CRA), in his 2013 Tax Returns, that Daneen resided with him in Ontario.

For all these reasons, I am satisfied that this condition has been met.

[24] Even if I am wrong that s.22(1)(b) of the CLRA establishes the jurisdiction of this court to deal with custody of Daneen, I am satisfied that Daneen would, on a balance of probabilities, suffer serious harm if she is returned to Jordan to live with Mr. Bani-Ahmad.

[25] First, Mr. Bani-Ahmad has a history of resorting to corporal punishment to discipline his children. Second, he also has a history of assaulting Mrs. Matrook. Third, if Mrs. Matrook goes to Jordan with Daneen, she runs the runs the risk of being arrested and imprisoned as a result of the complaint filed against her by Mr. Bani-Ahmad. Fourth, Daneen could experience psychological harm if she is separated from her mother and two siblings in Ontario for an indefinite period.

[26] Mr. Bani-Ahmad submits that it would be contrary to the purposes of s.22(1) of the CLRA to allow Mrs. Matrook to proceed with the custody application after she abducted Daneen from Jordan.

[27] I cannot conclude, on the evidence before me, that Mrs. Matrook abducted Daneen from Jordan. I accept her evidence that she had lawful custody of Daneen in Jordan. She presented a court document, the validity of which is not contested, titled “Custody Approval Hearing,” which recognizes that she had custody of Daneen. Second, Beder and Amear advised the OCL that Daneen lived with Mrs. Matrook in Jordan. Third, it is ironic that Mr. Bani-Ahmad is accusing Mrs. Matrook of abduction given the fact that he forged Mrs. Matrook’s signature in 2009 to obtain a passport for Raian before unilaterally returning to Jordan with Raian and Daneen.

Conclusion

[28] I therefore conclude that this court has jurisdiction to deal with the question of jurisdiction as it relates to Mrs. Matrook and Mr. Bani-Ahmad’s youngest child, Daneen. I am also prepared to make a temporary court order granting Ms. Matrook, interim custody of Daneen, given that it is in Daneen’s best interests to do so.

[29] Accordingly, I order that:

1. Mrs. Fidaa Matrook shall have interim custody of Daneen Bani-Ahmad, D.O.B. December 29, 2005.

2. Mr. Mohammed Mostafa Bani-Ahmad shall not travel to Jordan with Daneen, without the written permission of Ms. Matrook.

3. Mr. Mohammed Mostafa Bani-Ahmad shall have liberal access to Daneen when he is in Canada on a schedule arranged and agreed upon by both parties.

4. Mr. Bani-Ahmad will be allowed to have regular Skype/ Face Time access to Daneen when he is not in Canada.

5. Mrs. Matrook and Mr. Bani-Ahmad shall jointly make major decisions regarding Daneen’s religious instruction, education and health. If the parties cannot reach an agreement on these issues, they should seek the input of a Parenting Coordinator to resolve any conflict that may arise.

6. Mrs. Matrook is to retain Daneen’s passport.

7. Mrs. Matrook can obtain legal documents for Daneen such as a passport, and health-card, without Mr. Bani-Ahmad’s consent.

8. Mr. Bani-Ahmad can access directly and without Mrs. Matrook’s consent, any information regarding Daneen’s education, health and extra-curricular activities.

9. Costs are reserved to the trial judge.

Andre J.

Date: March 13, 2015