Court File and Parties
COURT FILE NO.: FC-16-133 DATE: 2016/04/15 ONTARIO SUPERIOR COURT OF JUSTICE
RE: ABDULLAH SAYED S. KARAR, Applicant AND SHAIMAA ABO-EL ELLA, Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Julius Dawn, for the Applicant Ian Vallance, for the Respondent / moving party
HEARD: April 12, 2016
Endorsement
CORTHORN J.
[1] The respondent mother seeks leave to proceed on an urgent basis with a motion to address the level of security for the children during their supervised access visits with the applicant father. The mother seeks, in her counsel’s words, to “beef up” the security – in particular out of concern that one or both of the children will be harmed or removed from the jurisdiction.
[2] This is the second time in two months that the parties are before the Court requesting that they be given a hearing date on an urgent basis. The chronology of the events in the proceeding to date is as follows:
- Jan. 20, 2016 A notice of application is issued by the father.
- Jan. 27, 2016 Father serves a notice of motion seeking date on urgent basis to address custody, access, and other relief.
- Jan. 28, 2016 The parties appear in Court; agree that an urgent motion date is required; and are given February 11, 2016 as the return date for the urgent motion.
- Feb. 11, 2016 The parties appear before Justice Beaudoin. They resolve a number of issues, and a temporary order is to issue in accordance with the agreement.
- Mar. 17, 2016 The father files a dispute of approval with respect to the terms of the order to be issued and entered based on the February 11 agreement and endorsement.
- Mar. 31, 2016 The dispute with respect to the terms of the order is set by the Registrar to be addressed either before Justice Beaudoin or “at the next case conference scheduled on April 20, 2016”.
- Apr. 5, 2016 The parties appear before the Court and the mother is granted leave to proceed with a motion for an order granting a return date for a motion on an urgent basis. The return date for the motion for leave in that regard is set as April 12, 2016.
- Apr. 12, 2016 The parties appear before me on the return of the mother’s motion for ‘directions’ for a motion on an urgent basis.
- Apr. 20, 2016 Case conference is to be held.
The Meaning of “Urgent”
[3] A decision of this Court frequently cited with respect to the meaning of “urgent” in the context of family law disputes is that of Wildman J. in Rosen v. Rosen [ Rosen ]. Justice Wildman identified the factors to be considered by the Court when faced with a request for a particular matter or issue to be determined on an urgent basis. Those factors are as follows:
a) What is the timing of the case conference in the matter?
- In the matter before Justice Wildman there were case conference dates available to the parties within a week or two of the date on which the parties were before her.
- As identified in the chronology above, the case conference in this matter is scheduled for April 20 – essentially one week subsequent to the date on which the parties were before me and two weeks subsequent to the date on which the mother’s request for the matter to be dealt with on an urgent basis was first before the Court.
b) What evidence is there of efforts having been made by the parties to reach a resolution of the matter or issue through negotiation?
- The parties are to focus on “achieving a short-term agreement to get the parties through to the case conference date without a motion”: see paragraph 9 in Rosen. In the matter before Wildman J. there was no evidence as to any efforts made by the moving party to negotiate a settlement of the particular issue even if only on a short-term basis.
- The same is true of the matter before me – there is no evidence of any effort to negotiate a settlement of the matter in dispute (i.e. the level of security with respect to the supervised access visits which the father has with the parties’ two children).
[4] Justice Wildman concluded her review of the two-part test stating, “[a]bsent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established”: see paragraph 12 of Rosen. She also recognized that independent of that two-part test, circumstances may be so extreme that a court must intervene immediately. A determination in that regard is fact-specific and requires a review of the facts in the case.
Background
[5] In his endorsement, Justice Beaudoin said, “there is a partial agreement. A temporary order will issue accordingly”. The partial agreement, which forms part of the endorsement, includes the following terms with respect to custody and access:
- No order as to custody. Children Mariam Karar (17/07/09) and Yousef Karar (25/07/13) principal residence to be with the respondent/mother. No changes from current status quo residence, education, and health, except to care in emergency, without both parties consent or further Court Order.
- Applicant father to have interim access, to be reviewed at case conference, of both children, as follows: i) Saturday, Feb. 13, 2016 from 3:30 to 6:00 p.m. at McDonald Restaurant 3773 Strandherd Drive; ii) Thereafter every Saturday at the matrimonial home 256 Deerfox Drive from 2:30 p.m. to 6:30 p.m. and further access that may be available from SDRC.
- All access to be supervised by Heba Karar and Karim Abo-El-Ella until further consent of the parties or further Court Order. Either party may appoint an alternate; can be Abdul Kara and Karem Hamza.
[6] There is also a term with respect to telephone access and the appointment of an assessor. The partial agreement concludes with paragraph (5), which provides, “[t]hat video and audio surveillance to be used.”
Positions of the Parties
a) Mother’s Position
[7] The mother’s position in support of the request for her motion to be heard on an urgent basis is:
- There have been significant developments related to the safety and security of the children, subsequent to the February 11, 2016 hearing before Justice Beaudoin.
- The endorsement from that date has not yet been taken out as an order, as a result of which the temporary agreement upon which the endorsement is based is not yet in the form of an Order, which is enforceable.
- The mother has real concerns and/or fear for the security of her children, as a result of which it is imperative that there be enhanced security measures during the father’s supervised access visits with the children.
[8] The significant developments upon which the mother relies include:
a) The father has, since the February 11 hearing been charged with three counts of assault, criminal harassment, writing death threats, forcible confinement and intimidation. The mother’s position is that the charges stem from historical domestic disputes; b) Two break-ins at the mother’s home, with the theft of the birth certificates and passports for both children; c) An e-mail message alleged to have been sent by the father to the mother in which the father threatened to: i) Kill the couple’s daughter; ii) Remove the couple’s son to the Middle East; and iii) Kill the mother.
[9] The mother’s position is that the supervision mechanism currently in place for access visits is no longer sufficient. At present, access visits take place at the father’s home. The visits are supervised by the father’s brother and the mother’s brother. The mother is concerned that the father could easily remove the children from the home – in particular with the assistance of his brother.
[10] Based on the record it is not clear whether the video and audio surveillance is in place. The mother’s position that even if it is in place, the surveillance does not provide the level of security required for the safety of the children and to ensure that they are not removed from the jurisdiction.
b) Father’s Position
[11] The father’s position is that the mother has not raised any new, credible evidence of conduct on the part of the father that post-dates February 11, 2016. The father denies that the e-mail message (threats) upon which the mother relies is from him. The father’s evidence is that the originating e-mail address is not his. The father says that he did not commit the break-ins at the mother’s home. He has not been charged with breaking and entering.
[12] In an effort to eliminate any concerns that he will remove the children from the jurisdiction, the father’s evidence is that he surrendered his Canadian passport to and it is being held by his counsel. The father says that he is not in a position to secure a passport from a Middle Eastern country.
[13] The father also points out that subsequent to the break-ins at her home the mother cancelled the children’s passports. In addition, because of the theft of the passports, Canadian Customs authorities have been notified. In summary, the father is not in a position to travel outside the country with the children.
Urgency: Two-Part Test
[14] As noted above, a case conference is scheduled for eight days following the date on which the matter was before me and effectively within two weeks of the date on which the mother obtained leave to proceed with this motion. It is not clear from the record when or how the April 20, 2016 case conference date was set.
[15] In her affidavit sworn on April 8, 2016 (“the Mother’s Affidavit”) the mother describes this matter as “a high conflict custody and access case”. The Mother’s Affidavit contains no evidence as to any efforts made to resolve her concerns with respect to the security of her children pending the parties proceeding to the case conference scheduled for April 20.
[16] The mother makes no mention in her affidavit of the April 20 case conference date. However, the mother was clearly aware of April 20 case conference date when she swore her affidavit on the 8th of April. The notice of motion, also dated April 8, refers specifically to the April 20 case conference date and requests, “An Order for Directions pertaining to the timing of this motion and, if necessary, that it proceed on an urgent basis prior to the Case Conference scheduled for Wednesday, April 20th, 2016 at 2:00 p.m. if this Honourable Court deems just.”
[17] The April 8 notice of motion identifies the April 12, 2016 return date for the matter before me. With April 12 being a Tuesday and April 20 being a Wednesday, that left the Court with April 13, 14, 15, 18 and 19 – five potential dates prior to the April 20 case conference on which to schedule the matter for an urgent motion.
[18] In all of the circumstances, I find that the mother’s request for an urgent motion fails to satisfy the first part of the two-part test set out in Rosen (i.e. based on availability of case conference date within a reasonable time frame).
[19] There is no evidence in the Mother’s Affidavit of any efforts made to resolve the matter on a negotiated basis pending the case conference scheduled for April 20. In her affidavit, the mother details options, other than supervised access in the father’s home, that would be acceptable to her. Those options include supervised access through the Separation and Divorce Resource Centre (“SDRC”), the Family Services Office (“FSO”), and on the basis of a private security service which the mother is prepared to hire at her expense. The mother does not, however, provide any evidence of efforts on her behalf to negotiate with the father to resolve the manner of supervision for his access visits with the children.
[20] Based on the record before me, I find that the mother’s request for an urgent motion fails to satisfy the second part of the two-part test set out in Rosen (i.e. efforts to reach a short-term resolution pending a case conference being held).
Urgency: Extremity of Circumstances
[21] Is the situation of the parties, “so extreme that the court must intervene immediately”? (See paragraph 12 of Rosen).
[22] In support of the ‘extremity’ of the situation, the mother relies on an e-mail message sent to her e-mail address at her place of work/study (Queen’s University) on February 17, 2016. The e-mail message was sent to the mother six days after the hearing before Justice Beaudoin. The sender’s e-mail address is khkh912@outlook.com. The subject line for the email address is interesting, “Regarding your CMA clinical hours.” As noted above, the father denies that he sent the e-mail message.
[23] The mother is said to be completing clinical hours as part of the qualification process to practice psychiatry. It is reasonable to infer that whoever sent the email knew that the mother is dealing with the CMA (the Canadian Medical Association). It is also reasonable to infer that the individual who sent the message used a subject line which was intended to appear innocuous so as to ensure that the mother would open the message upon receipt of it.
[24] As to the substance of the email messages; it reads as follows:
I WILL FOLLOW YOU FOREVER, I KNOW WHERE YOU ARE AT ALL TIMES! I WILL TAKE MARIAM FROM U AND BURY HER IN THE SAND LIKE MY PARENTS DID IN S3EED .. I WILL TAKE YOSUF AND SEND HIM TO KUQAIT TO SERVE MY MOM AND DAD OR I WILL GET A JOB IN SAUDI AND TAKE HIM EIWHT ME.
I WILL MAKE SURE U NEVER SEE THEM AGAIN OR I WILL LEAVE YOU DEAD CORPSE!!
your soulmate :)
[25] The mother’s position is that the contents of the email message:
a) Are accurate in naming the parties’ two children; and b) Refer to a ritualistic practise with respect to girls in the father’s home country.
[26] As noted above, the father denies that he sent the e-mail message. Neither the father nor mother were cross-examined on their respective affidavits in this matter. It is not possible for me to make any findings of credibility – in particular with respect to the e-mail message.
[27] Counsel for the father highlights that subsequent to the e-mail message being sent, he received a number of letters from counsel for the mother in which it was confirmed that the mother was being advised by counsel to adhere to the terms of the temporary agreement and that she would do so. Counsel for the father received a letter dated March 9 from counsel for the mother in which it was confirmed that the mother would comply with the endorsement (i.e. as relates to the scheduled access). The March 9 letter specifically confirms that the mother would bring the children to the father’s home for the access visit scheduled for the 12th of March.
[28] Counsel for the father confirmed in writing, by letter dated March 10 and addressed to counsel for the mother, that the father has surrendered his Canadian passport to his counsel. A copy of the passport was included with the March 10 letter from counsel for the father. That ‘gesture’ is said to have been made in an effort to re-assure the mother that there is no risk that the children will be removed from the jurisdiction. It is emphasized that the gesture is not in any way an admission of the mother’s allegations with respect to the father’s involvement in the threatening e-mail.
[29] In his affidavit, filed in response to the motion, the father says that he does not have an Egyptian passport, has not been to Egypt in 15 years, does not have any substantial connection with that country, and does not have a substantial connection with Kuwait. The father’s evidence is that his parents and his siblings all reside in Canada. He also states his belief that he is not entitled to an Egyptian passport because he has not performed the mandatory military service that country’s government would require.
[30] The record also indicates that access at the SDRC was arranged for March 11. The visit did not occur because the mother learned shortly before the visit was scheduled to take place that the father had been arrested on that date and charged with a number of offences.
[31] On March 11, subsequent to being charged, the father gave an Undertaking in the context of the criminal matter. Pursuant to the Undertaking, the father is required to have “[a]ccess to child(ren) as approved by the Children’s Aid Society (CAS) or pursuant to a Family Court Order.”
[32] Even after the mother learned of the criminal charges against the father, her counsel confirmed that the mother had always been advised by him that she needs to comply with the Court Order. In a letter dated March 17, sent by counsel for the mother to counsel for the father, the former says, “She has assured us that she will allow access to continue as per the court order.”
[33] Two days later (the fax transmission is dated March 19), a letter (dated March 21) is sent by counsel for the mother to counsel for the father. In the letter, concerns are raised for the safety of the children. Counsel for the mother states that he has been instructed to:
[B]ring this back on motion immediately unless adequate safety precautions are made on consent for Mr. Kara’s access – specifically not at his home, with independent supervisors (not family members) at a supervised facility approved by the Children’s Aid Society and with adequate security precautions in place at the facility.
I look forward to reviewing these issues with you as soon as possible and working out appropriate precautions either on consent or with the direction of the Court. (Emphasis as per original.)
[34] The copies of the correspondence from counsel for the mother to counsel for the father appear as exhibits to the affidavit of the father. The correspondence is not referred to in the Mother’s Affidavit.
[35] Absent a Court Order and pursuant to the March 11 Undertaking, the father is permitted to have access to the children as approved by the CAS. A letter dated March 21, 2016 authored by Shawna McClemens of the CAS is attached as an exhibit to the Mother’s Affidavit. The letter, in its entirety, is as follows, “The parties applied to Family Services Ottawa in January 2016, but are not yet in a position to proceed with supervised access at that centre.”
[36] The Mother’s Affidavit is replete with descriptions of events which pre-date February 11, 2016. I draw an inference that those events were in the mother’s mind when she agreed to the terms of the temporary agreement and endorsement on February 11, 2016. The Mother’s Affidavit also includes reference to events subsequent to that date – including two break-ins at her home and the theft of the passports and birth certificates of the children. Those events occurred prior to the dates of the letters in which counsel stated on the mother’s behalf that she was prepared to continue with access in accordance with the terms agreed upon on February 11, 2016.
[37] The mother did not deliver any affidavit in reply to the father’s affidavit. She has not offered any explanation as to why she was prepared at least until March 19 (date of fax transmission) or March 21 (actual date of letter sent on March 19) – and despite events that had occurred prior to that date – to continue with the access as set out in the temporary agreement and endorsement of February 11, 2016.
[38] The mother has offered no explanation for what transpired between March 17 when her counsel assured counsel for the father that the mother was prepared to continue with access as per the February 11, 2016 temporary agreement and March 19 when the letter dated March 21 appears to have been sent by fax to counsel for the father.
[39] In all of the circumstances, including absent such an explanation, I find that the matter is not “so extreme that the court must intervene immediately.”
[40] The order made by Justice Beaudoin on February 11, 2016 has yet to be formally issued and entered because of the notice of dispute delivered by the father in late March – 20 days after he gave the undertaking. As a result, neither of the parties has an order upon which they may rely, in the context of the Undertaking. Given the number of charges which the father faces, the seriousness of those charges, and that they stem from domestic conflict, it is important for the parties that they are clear on the terms in place with respect to supervised access.
[41] By way of information, subsequent to hearing this matter, I spoke with the co-ordinating authorities and was informed that the earliest date available for a two-hour motion is June 14, 2016.
[42] I therefore direct that the primary focus of the case conference scheduled for the 20th of April be to: a) resolve the terms of the order; and b) address the manner in which the father’s supervised access visits with the children is to continue. In the event the parties are unable to resolve the latter issue at the case conference, the presiding Judge will be in a position to determine whether the matter is, for any reasons not in the record before me as of April 12, urgent and, if necessary, schedule a date for the motion with respect to the supervised access.
Costs
[43] In the event the parties are unable to agree upon costs related to the matter argued before me, they may make written submissions as follows:
a) The submissions shall be limited to a maximum of three pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions; The written submissions and authorities shall be single-sided pages; and d) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.
Madam Justice Sylvia Corthorn Date: April 15, 2016