Salame v. Massoud, 2016 ONSC 1241

CITATION: Salame v. Massoud, 2016 ONSC 1241

COURT FILE NO.: FC-15-2180

DATE: 2016/02/19

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ZEINA SALAME, Applicant

AND

MASSOUD ANDRAOS MASSOUD, Respondent

BEFORE: Madam Justice L. Sheard

COUNSEL: Pauline El-Tenn, Counsel for the Applicant

Gonen Snir, Counsel for the Respondent

HEARD: February 9, 2016

ENDORSEMENT

[1] This motion was brought by the respondent father (the “Father”), for the following orders:

(1) that pursuant to sections 22 and 25 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), this Court decline jurisdiction to determine the custody and access issues that flow from divorce proceedings filed by the Father in Lebanon on September 29 and October 1, 2015;

(2) that the children of the marriage, Andrew Massoud, born July 13, 2006 and Allison Massoud, born September 10, 2007, be returned to Lebanon forthwith pursuant to the court order made in Saida, Lebanon dated October 5, 2015;

(3) such further and other order as counsel may advise and the Court deems just; and

(4) costs on a substantial indemnity basis.

Overview

[2] The parties met in Lebanon and were married there in 2005. The applicant mother (“the Mother”) sponsored the Father and they moved to Canada. The parties had two children, born in Canada, in 2006 and 2007 (collectively “the Children”).

[3] In 2013 the Father returned to Lebanon after the death of his father. As he had done prior to his marriage, he obtained work in Africa. In July 2014 the Mother and the Children left Canada and moved to Lebanon. The Father continued to work in Nigeria, Africa and returned to Lebanon every three or four months for a 10-day visit.

[4] The Mother was unhappy living in Lebanon. She wanted to come back to Canada. The Father did not want to return to Canada. On September 7, 2015, without telling the Father, the Mother secretly boarded a plane for Canada with the Children. Since that date, the Mother and the Children have resided in Ottawa. The Children have been going to school here.

[5] When the Father learned what the Mother had done, he brought proceedings in Lebanon. Among other things, the Father sought an order for custody of the Children as well as an order for their immediate return to Lebanon.

[6] On October 5, 2015, the Father obtained a “Preliminary Award” from the Antioch Orthodox Church. I understand this to be the equivalent of a court order. The Award required the Mother to return the Children to Lebanon immediately, under penalty of fifty thousand (Lebanese) pounds per day (which counsel agreed equated to approximately thirty Canadian dollars per day) and to pay fees on behalf of the Father.

[7] In his affidavit, the Father states that he telephoned the applicant at 7 a.m. our time on October 5, 2015 to advise her of the Preliminary Award. The Mother states that she did not receive formal notice of the Lebanon proceedings until December 2015. The Mother commenced the within application on October 5, 2015. The timing of the Mother’s application tends to corroborate the Father’s assertion that he notified her of the Preliminary Award on October 5, 2015.

[8] On October 8, 2015 the Mother brought an urgent motion in this Court. She obtained a temporary, without prejudice order granting her custody of the Children; preventing the Father from removing the Children from Ottawa; and directing that the police assist the Mother in enforcing the order. There was no mention in her materials of the proceedings commenced by the Father.

[9] The matter was before the court again on October 20, 2015. On that date, the earlier order was continued so as to allow the Mother to serve the Father with her application.

[10] On November 17, 2015, the Father, through his Ontario lawyer, brought a motion seeking leave to allow him to bring a motion to determine the issue of jurisdiction and to allow him not to deliver his answer until after the issue of jurisdiction had been heard and determined. That order was granted, together with some related relief.

[11] On February 9, 2016 I heard this motion and reserved my decision on the merits. I did grant an order that the Father not be required to deliver an answer or financial statement pending the release of my decision. In the event I determined that Ontario did have jurisdiction, I further ordered that the Father would then have 60 days from the date of the release of my decision to deliver his responding materials.

[12] The only issue on this motion is whether or not this Court has jurisdiction to make an order for custody of or access to the children. The respondent asserts that, pursuant to section 22 of the CLRA, it is Lebanon that has jurisdiction.

Background

[13] The Mother married the Father in Lebanon on July 24, 2005. They met in Lebanon, but prior to their marriage, the Mother had been living in Canada with her parents. The Father was working in Africa. He had done so for eight years. After they were married, the Mother sponsored the Father so that he could immigrate to Canada. The couple were living together in Canada as of February 2006.

[14] The Children were born in Canada: Andrew Massoud, born July 13, 2006, and Allison Massoud, born September 10, 2007. They have dual Canadian/Lebanese citizenship.

[15] The family lived in Ottawa at 476 Rougemount Crescent (the “Matrimonial Home”). Title to the Matrimonial Home is in the Father’s name. The Mother operated a home daycare. The Father worked as a carpenter in Montréal.

[16] In 2013, following the death of his father in Lebanon, the Father left Canada. He says he returned to Lebanon to renovate the family home. I understand that to be the home lived in by his newly-widowed mother. The Mother says that in July 2013 the Father decided to return to work in Nigeria. He did so to be closer to his family in Lebanon.

[17] The Mother says that the parties decided that she would move with the Children to Lebanon in July 2014. Upon their arrival in Lebanon, the Mother and the Children moved in with the Father’s mother. The Father continued to work in Nigeria, Africa, returning every three to four months for a 10-day visit. The Mother asserts that these visits were so that he could see the Children but acknowledges that the Father stayed with her on his visits.

[18] The Mother did not enjoy living with her mother-in-law. After eight months, and at the request of the Mother, the Father rented an apartment for her and the Children. The Father’s mother and other members of his family lived in the same neighbourhood. The Mother says this made her feel uncomfortable and “trapped and controlled”.

[19] The Mother says that the Father was earning approximately $6000 a month but would send her only $900 monthly to support her and the Children. She asserts that this was not adequate. This is part of her claim that the Father was financially abusive.

[20] The Father acknowledged that he gave the Mother $900 per month. The evidence also showed that the Father paid the rent on the apartment and the Children’s school fees. There is no evidence before me as to the cost of living in Lebanon. I cannot determine whether or not $900 per month to feed and clothe and otherwise provide for the Mother and Children is sufficient, as he suggests, or financially abusive, as claimed by the Mother.

[21] The Father says that the Mother refused to work in Lebanon. For that reason he had to look for the best paying employment available, which was in Nigeria, Africa. The Mother says that the Father simply returned to working in Nigeria, where he had worked for many years before they were married.

[22] Even after moving into the apartment, the Mother continued to be unhappy. She expressed a wish to return to Canada. According to the Mother, the Father said that if she was unhappy she could ask for a divorce and return to Canada but that she would have to leave the Children behind.

[23] The Mother asserts that, throughout the marriage, the Father has been physically, verbally, emotionally, psychologically and financially abusive. There is no evidence in the Record before me that would corroborate the Mother’s allegations of abuse. In fact, in his responding materials, the Father has provided many family photographs taken of him with the Children and him with the Mother. These are all taken in Lebanon. The photographs appear to document a meal shared with family or friends; a family holiday with Mother, Father and the Children; and a holiday for the Father and Mother to celebrate their wedding anniversary.

[24] At the hearing of the motion, counsel for the Mother could not identify any document or exhibit that was able to corroborate the Mother’s allegations of abuse.

[25] I accept that the Mother was not happy in Lebanon and that she wanted to return to Canada. I draw those conclusions based on her conduct. I also accept that the Father would not have allowed the Mother to leave Lebanon with the Children. I draw that conclusion from the secret manner in which the Mother left Lebanon and the fact that the Father immediately initiated legal proceedings upon learning of the Children’s departure.

[26] In her affidavit, the Mother states that she waited until the Children had finished their school year in Lebanon and until she could put together a plan to leave. She states that she had no money of her own and had to ask her parents to send her money to buy plane tickets for herself and the Children. Again, by her own admission, on September 7, 2015, “in the middle of the night” the Mother flew with the Children to Canada. She did so without telling the Father.

[27] Soon after learning (from the Mother’s grandfather) that the Mother and Children had departed to Canada, the Father started proceedings in Lebanon. In them, he seeks the return to Lebanon of the Children, full custody, and a divorce.

[28] This motion is to deal only with the issue of whether this Court has jurisdiction to make an order for custody of or access to the Children.

Issue: Does Ontario or Lebanon have jurisdiction to make an order for custody of or access to the Children?

[29] The jurisdiction of this Court is determined pursuant to the provisions of the CLRA. Section 22 of the CLRA provides:

(1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

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

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

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

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

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

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

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) with a 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

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) The removal or withholding of a child without the consent of the person having custody of 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. [emphasis added]

[30] The Mother argues that, notwithstanding that the Children moved with her to Lebanon in July 2014, they were not “habitually resident” in Lebanon. She states that she did not intend to move permanently to Lebanon and only wanted to give it a “try”. She argues that Ontario is therefore the place in which the Children had their last habitual residence.

[31] The Father disagrees with the Mother’s characterization of the move. He points to a number of steps taken by the Mother and the Father after they decided to move to Lebanon. Those included listing the Matrimonial Home for sale (although it had not sold as of the date of this motion and has been rented); the sale of all the furniture and appliances in the Matrimonial Home; the Mother advising the Canada Revenue Agency that she was relocating and to discontinue the child tax benefits; and the Mother shutting down her home daycare business.

[32] The Father further points to steps taken in Lebanon that show a joint intention to make Lebanon their permanent home: the Mother obtained a Lebanese driver’s license; the parties bought a new car; at the request of the Mother, the Father arranged a one-year lease of a residential property, which they moved into in April 2015; and, with the knowledge and consent of the Mother, the children were enrolled in school, including the 2015-2016 school year, for which the tuition had been paid; the Mother had no home or job to return to in Ottawa and, since her arrival in Ottawa, she and the Children have been living with the Mother’s sister. As at the time of the motion, there was evidence that the Mother has obtained part-time employment. No details of that employment were included in the Record.

The Law: Habitual Residence

[33] The wording of section 22(3) of the CLRA is clear: the removal or withholding of a child without the consent of the person having custody of 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. (See Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593 [Dovigi].)

[34] Counsel for the Father relies upon the Ontario Court of Appeal decision in Dovigi. In considering the provisions of section 22(2) of the CLRA, the court in Dovigi stated, at paras. 18-19:

Even a child with a stable and settled life in Ontario residing with one parent is not “habitually resident” here under the statute unless the child’s residence is in accordance with a separation agreement, consent, or a court order.

The possibility that the child is living with one parent outside Ontario as a result of abduction is specifically addressed by s. 23(3) of the CLRA, which provides that abduction does not change the “habitual residence” of a child.

[35] In the case before me, the Mother has admitted that the only reason the Children are in Ontario is as a result of her secreting them out of Lebanon without the knowledge or consent of the Father. Her evidence, corroborated by the Father having commenced legal proceedings in Lebanon, leaves no doubt that the children are in Ontario without the consent, implied consent, or acquiescence of the Father. The provisions of ss. 23(3) of the CLRA apply: taking the Children to Canada did not change their habitual residence.

[36] While an interim and without prejudice order was made in Ontario granting the Mother sole custody of the Children, that order was made without notice to the Father and without disclosure to the Court of the Father’s proceedings in Lebanon. Also, the order did not address the issue of jurisdiction. In the circumstances, I do not find that the temporary, without prejudice order made in Ontario, made without notice to the Father, is the court order contemplated by section 22(2)(b) of the CLRA. Were that the case, a parent who had removed a child from a foreign jurisdiction could insulate themselves from the effect of section 22 of the CLRA simply by moving without notice for an order granting them sole custody of the child.

[37] The facts in Dovigi are not analogous to those before me. In Dovigi, the pregnant mother left Ontario and gave birth in California. The Father brought an application for joint custody in Ontario. The mother disputed the jurisdiction of the Ontario court to make a custody order. The motion judge recognized that she did not have jurisdiction under the CLRA but concluded that, because the child had no “habitual residence” there was a gap in the statute. On that basis she then invoked the court’s parens patriae jurisdiction. The Court of Appeal set aside the motion judge’s order and dismissed the father’s application for want of jurisdiction.

[38] In it reasons, the Court of Appeal rejected the father’s argument that the child was habitually resident in Ontario because at one parent lived there. At para. 14:

…In essence, counsel advocates a common law approach to “habitual residence” in determining the court's jurisdiction. However, it is elementary that a statutory definition must be applied when interpreting the very term defined. The phrase “a court shall only exercise its jurisdiction” in s. 22 makes clear that the statute has superseded the common law.

Best Interests of the Children and Jurisdiction

[39] Despite having concluded that the motion judge was wrong in relying upon the court’s parens patriae jurisdiction, the Court of Appeal in Dovigi did consider the circumstances in which it might be necessary for that jurisdiction to be invoked. At para. 21 it stated that the Supreme Court had made clear that the jurisdiction was founded on the need to protect those who cannot care for themselves. It concluded that the evidence did not give rise to any protection concern and, further, that the motion judge erred by concluding that it would be in the child’s best interest to reside in Ontario. Warning against that analysis the court stated:

Where it is in the best interests of the child to be parented must be decided by the court with jurisdiction. The outcome of the inquiry into best interests does not provide a basis for taking jurisdiction. (para. 23)

Must the Move be Permanent?

[40] The parties disagree on whether the move to Lebanon was temporary or permanent. However, whether or not the Mother and the Children moved to Lebanon permanently, or only “to give it a try”, is not determinative. As determined by the court in Johnson v. Athimootil (2007), 2007 CanLII 41434 (ON SC), 49 R.F.L. (6th) 106 (Ont. S.C.) [Johnson], the habitual residence as defined in section 22 of the CLRA is “the last relevant residence of the child with the parent, parents or other person” (para. 16). Habitual residence has been interpreted to be the place in which “the husband and wife last lived together and fully participated together in everyday family life”: Adam v. Adam (1994), 1994 CanLII 18164 (ON SC), 7 R.F.L. (4th) 63 (Ont. Gen. Div.), at para. 15. It does not necessarily imply permanence or an intention to stay permanently: “Indeed, the shift from “domicile” to “habitual residence” was motivated in part by a legislative wish to avoid the need to determine “intention” which was notoriously difficult and unpredictable.” (Johnson, at para. 16).

[41] The Mother also asserted that she and the Father did not live together in Lebanon. On that basis, she argued that the last place that the Children habitually resided with both parents was Ontario and, again, that Ontario has jurisdiction. Even if I were to accept that the Mother and Father never cohabited in Lebanon, which is not the evidence before me, then section 22(2)(b) of the CLRA would apply and I would have to conclude that the habitual residence of the Children was in Lebanon with the Mother, living separate and apart from the Father, with his implied consent or acquiescence.

[42] Based on the evidence before me, I find that the habitual residence of the Children is Lebanon.

If the Children are not habitually resident in Ontario do they meet the test under section 22(1)(b)?

[43] If this Court concludes, as I do, that the Children were not habitually resident in Ontario at the time the Mother commenced her application, for this Court to find jurisdiction, the Mother would have to satisfy the six-part test under section 22(1)(b) of the CLRA.

[44] The evidence before me satisfies me that the Mother has clearly met four of the six criteria set out under section 22(1)(b) as follows:

(i) the Children were physically present in Ontario at the commencement of the Mother’s application;

(ii) as the Children lived in Ontario from their respective births in 2006 and 2007, and were only absent from Canada from July 2014 to September 2015, I am satisfied that there would be substantial evidence concerning their best interests available in Ontario;

(iii) there has been no assertion that an extra-provincial order has been made in respect of custody of or access to the Children or that such order has been recognized by a court in Ontario; and

(iv) the Children have a real and substantial connection with Ontario: they were born in Ontario; they only lived in Lebanon for period of approximately 15 months; in addition to the Mother who lives here, the Children have other close family members here, namely the Mother’s parents, and the Mother’s sister, with whom they have been living since September 2015. Further, except for the 2014-2015 school year in Lebanon, the Children have attended school here.

Is there an application for custody of or access to the Children is pending before an extra-provincial tribunal in another place where the Children is habitually resident?

[45] Section 22(1)(b)(iii) requires the court to be satisfied that no application for custody of or access to the Children is pending before an extra-provincial tribunal in another place where the Children are habitually resident.

[46] The Father’s evidence included copies and English translations of the application he has brought in “The Orthodox First Instance Court in Tyr and Sidon”. The Greek Orthodox Archbishop made a Preliminary Award, granted under the auspices of the Orthodox Spiritual Courts. It must be noted that the Preliminary Award does not grant custody to the Father: it only orders the Mother to return the Children to Lebanon.

[47] The Father’s application before The Orthodox First Instance Court in Tyr and Sidon, includes a claim for divorce, without the payment of spousal support, and for custody of the Children until they are of legal age.

[48] I am invited to and do find that The Orthodox First Instance Court in Tyr and Sidon is an extra-provincial tribunal as defined in section 18(1) of the CLRA, namely “a court or tribunal outside Ontario that has jurisdiction to grant to a person custody of or access to a child”.

[49] The grounds used by the Father in his application are troubling to the sensibilities of this Court. For example, at page 2, he makes allegations that the Mother has caused the problems in the marriage by her “continuous presence day and night around a swimming pool with a group of persons, at least we can say about them that they are suspected behaviour and all divorced without exception,…” (sic).

[50] Starting from the fifth page of the application, the Father quotes from the code of personal status for the Greek Orthodox community which, he states, stipulates, among other things, that a husband has the right to ask for divorce from his wife: “If her husband asked her repeatedly to not frequent a place where there is bad reputation or to frequent people with bad behaviour and she failed, …” [article 69 of the code] Further on page 5: “Whereas the article 56 of the same code stipulated verbatim: ‘if the woman disobeys she will not have alimony during the period of her disobedience. And the disobedient woman is one who leaves the marital house without a reason or a legal reason, or prevents her husband from entering this house or one against whom a definitive judgment has been passed stating to compel her to follow her husband or to allow him to enter the marital house without implementing the judgment with in the just prescribed delay.’” (sic)

[51] I appreciate that the translation of the Father’s application may not be perfect. However, the tone of the allegations and the language of spousal “obedience” has no place in the current statutory or common law of Ontario.

[52] The grounds set out under the heading relating to the Father’s request for custody of the Children are also concerning. They read, in part: “Whereas the article 57 of the Personal Status Code of the Antioch and Levant Patriarchate for Greek Orthodox stipulates as follows: the children live with their father who has the paternal authority thereupon and who brings them up and teach the same…” (sic) [emphasis added] Again, the presumption of “paternal authority” as it appears in these pleadings, if it ever existed here, has long been replaced by other principles, the most significant one being the best interests of the child.

[53] Despite these concerns, I do not find any authority that would allow me to ignore the clear provisions of section 22(2)(i) – (vi) of the CLRA. Again, I am guided by the Court of Appeal’s caution in Dovigi that it is the court with jurisdiction that must decide the best interests of the Children.

[54] I find that the Father’s proceeding before The Orthodox First Instance Court in Tyr and Sidon is an application for custody of the Children pending before an extra-provincial tribunal in a place where the children were habitually resident.

On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario?

[55] I have found that the Mother has failed to satisfy the criterion under paragraph 22(1)(b)(iii), but in case I am wrong, I will consider whether or not she has satisfied the requirements of subparagraph 22(1)(b)(vi).

[56] Section 22(1)(b)(vi) requires the court to be satisfied that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. To determine whether this criterion has been met, the court may consider “where the parties have been living, where the children are located, where the party’s assets are located, where witnesses are located and which law applies.” (See Christie-Lyras v. Lyras, 2015 ONSC 7688, at para. 82 [Christie-Lyras]).

[57] At paragraph 83, the court in Christie-Lyras continued:

All of these factors must be assessed in the context of what is in the best interest of the children. It is appropriate to consider where independent evidence that may assist the court in addressing the contentious issues between the parties relative to their children, is located. In this case, the preponderance of that evidence for example, from the children’s teachers, doctors, instructors, family members and long-term neighbours is all in Ontario. Kitely J. in Gillespie v. Jones, 2015 ONSC 5265 (Ont. S.C.J.), observed at para. 54 that witnesses “with the crucial evidence of the parenting relationship before the separation” were primarily in British Columbia and as a result it was more convenient that the parenting issues in dispute in that case be resolved there. That conclusion is certainly apt in these circumstances in respect of Ontario.

[58] The evidence on this point also requires consideration. The affidavits put forth by the Mother are lacking in detail. Although she refers to her parents and to her sister, she provides few details about them.

[59] Similarly, the Mother has provided very few details about the Children. In argument, her counsel stated that the Children did not speak Arabic before going to Lebanon and that they struggled with the language when they went to school there. That evidence is not in the materials before me. Counsel for the Mother argued that the Children had friends here in Ottawa and wanted to live here. However, there was little or no evidence before me on those issues.

[60] All of the Children, the Mother and the Father, have dual Canadian and Lebanese citizenship. I understand that the Mother has retained legal representation in Lebanon. The Mother’s grandfather still lives in Lebanon. I understand that he may have been close to the Mother as she confided in him about her plan to leave Lebanon and was the person with whom she left the Children’s cell phone. It was the grandfather with whom the Father spoke and from whom he learned that the Children had been removed to Canada.

[61] Despite the shortcomings in the evidence before me, I am satisfied that the balance of convenience favours this Court assuming jurisdiction. While there will be some witnesses in Lebanon, given the limited time that the Children spent there, I would expect that most of the key witnesses in this case will be in Ontario: the Mother’s family, the parties’ and the Children’s neighbours, friends, teachers, doctors, etc., who knew the parties as a couple when they resided in Ontario. In addition, the parties’ (unsold) Matrimonial Home is also located in Ontario.

[62] The court may also consider evidence of financial balance as between the parties and where the evidence of most assistance to the court is located (E. (H.) v M. (M.), 2015 ONCA 813, at para. 118).

[63] On that issue, the evidence is clear that the Father was the sole income earner while the family was in Lebanon and the primary earner throughout the marriage. It is reasonable to conclude that he is in a much better financial position than the Mother.

[64] Counsel for the Mother relies, in part, on the Court of Appeal decision in Krisko v. Krisko (2000), 2000 CanLII 16895 (ON CA), 11 R.F.L. (5th) 324. In that case, the Court of Appeal affirmed the motion judge’s decision that the Ontario courts should assume jurisdiction. In considering the “balance of convenience” criterion, the motion judge expressed “concern as to how Canadian law would be applied in Dubai. She remarked that it was not clear that any custody dispute would be resolved according to the children’s best interests nor that both parents would have equal rights before the court. She was also concerned that Dubai is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and that in her present circumstances the Mother may experience sponsorship problems in Dubai” (at para. 9).

[65] The Court of Appeal found that the motion judge’s findings were supported by the evidence and declined to interfere with her conclusion (at para. 10). However, the facts in that case differ from those before me. For example, unlike here, where the Mother has admitted to removing the Children in the middle of the night, in Krisko, the Mother had not “surreptitiously removed the children” from the foreign jurisdiction. Also, different from the facts in this case, in Krisko the father had not commenced proceedings in the foreign jurisdiction. Finally, in Krisko, the father had attorned to the jurisdiction of the Ontario courts. The Mother argued that the Father seeks the Children’s return to Lebanon as a way to control her; that the Father sees the children between 30 and 40 days out of the year and has not been active in parenting the Children and has always left their day-to-day care to her. There is ample evidence before me to support the Mother’s assertions. If it were open to this Court to determine the jurisdictional issue on the basis of the best interests of the Children, I would likely find that it is in their best interests to remain in the care of their Mother. However, determining the best interests of the Children is the function of the court with jurisdiction.

[66] That the Children’s last habitual residence is Lebanon was a choice made by the Mother. Her evidence is that a year after the Father had left Canada for Lebanon, she decided to leave Canada for Lebanon. It is reasonable to conclude that the Mother’s move to Lebanon was voluntary and that she intended to resettle there with the Children. Her actions conflict with her claims of abuse by the Father.

[67] There is no evidence from the Mother that the Children were at risk of harm in Lebanon. The Children were enrolled in a local private school; they were enrolled in extracurricular activities; the family photographs produced by the Father corroborate the Father’s assertions that his children were happy, loved and well provided for. They show smiling, properly dressed and well-fed children playing with iPads. They include photographs of the Father playing with the Children.

[68] In her application and motion for the ex parte order granting her sole custody of the Children, the Mother argued that the order should be granted, in part, because Lebanon is not a member of the Hague Convention.

[69] The Father argues that, if Lebanon had been a signatory to the Hague Convention, he would have been entitled to the enforcement of his order, which predated the order given by this Court to the Mother. Again, the order that was granted to the father was not for custody of the Children: it was an order that the Mother return the Children to Lebanon. On the record before me, I cannot conclude that not being a signatory to the Hague Convention is a sufficient or any basis upon which to find that this Court has jurisdiction.

[70] Counsel for the Father acknowledged that the Antioch Orthodox Church is waiting for a decision by this Court as to whether or not it will assume jurisdiction over the issue of custody of the Children before proceeding with the litigation in that jurisdiction. Notwithstanding the concerns expressed above regarding the nature of the Father’s allegations, the Lebanese authority did not determine the issue of custody or access in the absence of evidence of the Mother. Further, it is has not proceeded with the Father’s application in deference to a determination by this Court of jurisdiction.

[71] For the reasons set out above, I find that Lebanon is the appropriate jurisdiction for the determination of custody of or access to the children.

[72] On the evidence before me, I understand that the apartment rented for the Mother and the Children has been given up and that the Father continues to work in Nigeria. He did participate in the motion via telephone call and stated in that call that he would quit his job and relocate to Lebanon in order to provide a home for the Children should they be returned there.

[73] Having determined Lebanon and not Ontario has jurisdiction, it is not within my power nor is it appropriate for me to make any order respecting custody of or access to the Children. I will hope and assume that those issues will be properly and fairly determined by the extra-provincial tribunal in Lebanon.

Should this Court enforce the Father’s extra-provincial order?

[74] As part of his relief, the Father has asked for an order from this Court that the Children be returned to Lebanon forthwith in accordance with the Preliminary Award he obtained on October 5, 2015.

[75] Section 41(1) of the CLRA provides as follows:

(a) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that 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;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

[76] Based on the evidence before me, I find that this Court is not required to recognize the order obtained by the Father as the Mother was not given reasonable notice of the commencement of the proceeding. The evidence is that she was not served until December 31, 2015. Further, there is no evidence before me that the extra-provincial tribunal is required by law to have regard for the best interests of the child.

[77] In submissions by their counsel on the motion, I understand that the both parties have counsel in Lebanon. As stated above, counsel for the Father advised that the proceedings commenced by the Father in Lebanon were on hold, awaiting the outcome of this motion. I would hope and expect that any custody or other related orders made in Lebanon would be made only after having received and considered the Mother’s responding materials and submissions.

[78] Based on the evidence before me, it would appear possible for a court with jurisdiction to conclude that it would be in the best interests of the Children to remain living with the Mother in Canada. At the least, given the clear evidence that both the Mother and the Father are very concerned about the education of the Children, they might agree or a court with jurisdiction might conclude that it would be in the best interests of the children that they be permitted to complete their school year in Canada.

Costs

[79] The Father had a mixed result on this motion. If the parties cannot agree on costs, within 20 days of the date of this endorsement they may make written submissions to me, not exceeding three pages, plus bills of costs or cost outlines. Submissions should be sent to my attention at the Ottawa Courthouse, Judges’ Chambers, fifth floor.

Madam Justice Sheard

Released: February 19, 2016

CITATION: Salame v. Massoud, 2016 ONSC 1241

COURT FILE NO.: FC-15-2180

DATE: 2016/02/19

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: ZEINA SALAME, Applicant

AND

MASSOUD ANDRAOS MASSOUD, Respondent

BEFORE: Madam Justice L. Sheard

COUNSEL: Pauline El-Tenn, Counsel for the Applicant

Gonen Snir, Counsel for the Respondent

ENDORSEMENT

Released: February 19, 2016