minicounsel

CITATION: Chaudry v. Khan, 2016 ONSC 7773

COURT FILE NO.: FS-16-20891-0000

DATE: 20161215

Applicant

and -

Respondent

John Syrtash, for the Applicant

Mustafa Jilani, for the Respondent

D.L. Corbett J.:

1Mr Chaudry and Ms Khan moved with their two young children from Ontario to the Kingdom of Bahrain in 2014. They made the move for two principal reasons: for Mr Chaudry to take better-paid employment with a Bahraini bank, and for Mr Chaudry and Ms Khan to establish their own home (they had been living with Mr Chaudry’s family in Ontario, and they had found that situation difficult).

2Ms Khan was pregnant at the time of the move. She gave birth to the family’s third child shortly after arriving in Bahrain.

3In late 2015, Ms Khan left Bahrain with the couple’s two youngest children (aged 2 and 3) for a vacation in Pakistan, where Ms Khan visited with her family. Mr Chaudry joined Ms Khan in Pakistan with their eldest child a couple of weeks later. When they met, at Mr. Chaudry’s hotel, Ms Khan wished to leave with her eldest child; she had not brought the younger two children with her. Mr Chaudry would not give Ms Khan the eldest child and returned to Bahrain with him. Ms Khan then flew from Pakistan to Ontario with the youngest two children. Ms Khan then refused to return to Bahrain or to disclose to Mr Chaudry her precise whereabouts or those of the younger two children. Mr Chaudry used police and court assistance to locate the children, and he commenced these proceedings for an order that the two younger children be returned to Bahrain.

4Mr Chaudry has also commenced legal proceedings in Bahrain and the Bahraini court has issued an order granting him sole custody of the children.

5Mr Chaudry argues that the family was habitually resident in Bahrain, and that Ms Khan illegally abducted the children and brought them to Canada. He argues that jurisdiction over family law matters such as custody of and access to the children is in Bahrain and not in Ontario.

6Ms Khan argues that she and the children are Canadian citizens. The move to Bahrain was temporary. Neither she nor Mr Chaudry have roots or a strong connection to Bahrain. She argues that she has been a victim of physical and psychological abuse and subjugation by Mr Chaudry, both before and after they went to Bahrain. She argues that the law of Bahrain is inconsistent with the human rights of women and the best interests of children, and that this court has jurisdiction over the issues of custody of and access to the two younger children.

7For the purposes of this motion, Ms Khan acknowledges that this court does not have jurisdiction over the couple’s eldest child, Ibrahim, who has lived in Bahrain since 2014 and who is not physically present in Ontario. Thus she acknowledges that the order she seeks could have the effect of separating the two youngest children from their older brother.

Summary and Disposition

8The characterization of Ms Khan’s conduct in taking her children from Bahrain to Canada is in the eye of the beholder. Mr Chaudry describes it as a “criminal abduction” and urges the court to act to prevent such wrongful conduct in future, by both Ms Khan and by others who might be like-minded. Ms Khan argues that she “fled” Bahrain to “escape” an intolerable situation of “abuse” within a society that “tolerates” subjugation of women and children to men. She argues that she sought assistance from police in Bahrain and received no help.

9Bahrain is not a signatory to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). Thus the test for this Court’s jurisdiction is found in the Children’s Law Reform Act.¹ I am satisfied of the following conclusions which lead me to refuse to order return of the children to Bahrain, and instead to find that the courts of Ontario have jurisdiction over the issues of custody of and access to the two youngest children:

(a) this family’s strongest connection is to Ontario;

(b) both parents have strong social and familial ties to Ontario;

(d) all of the children are Canadian citizens;

(e) there likely was a history of physical abuse of and mental cruelty to Ms Khan by Mr Chaudry before the move to Bahrain. It appears that this problem has not abated in Bahrain, and may have become worse there. It also appears that this conduct may be within the range of permissible “physical discipline” by a husband of his wife under Bahraini law;

(f) on the expert evidence before me, even in its “liberalized” current form, Bahraini family law is not based on the best interests of children, or equality of men and women, but rather the social, economic and legal primacy of men and patriarchal authority; and

(g) the order of the Bahraini court was made without notice or a reasonable opportunity to Ms Khan to be heard on the issue of custody of the children, does not have regard for the best interests of the children, and thus will not be recognized by this court.

10Therefore, for the reasons that follow, I conclude that Ontario does have jurisdiction over the parties’ youngest two children, Aariz and Zayna.

Background Facts

11The parties were both born in Pakistan in 1983. They were married in Pakistan on August 15, 2008. They have three children:

(a) Mohammed Ibrahim Chaudry (DOB January 12, 2010, currently age 6);

(b) Aariz Razzaq Chaudry (DOB December 8, 2012, currently age 4); and

12The parties and their eldest two children moved to Bahrain in May 2014 where Mr Chaudry took a position with Arab Banking Corporation as a financial professional. Ibrahim has lived in Bahrain for the past two years and attends St. Christopher’s School in Saar Bahrain, a British private school with an international reputation for excellence. Aariz had lived in Bahrain for roughly half of her three years at the time that she was removed from the jurisdiction by her mother. Zayna was born in Bahrain and had lived there the entire 18 months of her life at the time that she was removed from the jurisdiction by her mother.

Statutory Framework

A. Return of Children Removed from Bahrain and Retained in Ontario

13Bahrain is not a signatory to the Hague Convention.² Thus this application is not brought pursuant to the Hague Convention, but rather under s.40 of the CLRA, which provides:

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.³

B. The Bahraini Custody Order

14 Section 41 of the CLRA provides:

(1) 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.

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.

(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.⁴

C. Jurisdiction of Ontario Court

15 Section 22 of the CLRA sets out bases on which an Ontario court has jurisdiction to make an order for custody or access to a child:

(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) 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

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.⁵

16 Section 23 of the CLRA provides:

Despite sections 21 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) The court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.⁶

Does Ontario Have Jurisdiction?

A. Where Are the Children Habitually Resident?

17For the purposes of this application, the parties agree that Ontario does not have jurisdiction over the parties’ eldest child, Ibrahim, who is not physically present in Ontario and who was not habitually resident in Ontario at the commencement of this application. Ibrahim is currently in Bahrain, where he has been habitually resident since May 2014. Therefore, Ms. Khan’s motion for interim sole custody of Ibrahim and an order that Ibrahim be returned to Ontario, are dismissed.

18Mr Chaudry argues that the younger two children, Aariz and Zayna, are likewise habitually resident in Bahrain. Aariz lived in Bahrain from May 2014, and Zayna from her birth in July 2014, until they were removed, first to Pakistan on December 9, 2015, and thence to Ontario, on January 26, 2016.

19Ms Khan argues that Mr Chaudry consented to or acquiesced,⁷ in the relocation to Ontario by:

(a) pursuing informal settlement discussions aimed at reconciliation; and

(b) failing to take more active steps to locate Ms Khan and the children to seek their return to Bahrain.

20I accept Mr Chaudry’s argument and reject Ms Khan’s argument on these points.

21Mr Chaudry consented to the children’s removal to Pakistan for a family vacation. He understood that Ms Khan and the children were returning to Bahrain after the Pakistan trip. This understanding is reflected in return airplane tickets purchased before departure to Pakistan. After the parties met in Pakistan, Mr Chaudry did not know whether Ms Khan would return to Bahrain after some additional time in Pakistan. Mr Chaudry did not know that his wife planned to go to Canada, and was unaware that she had done so until she told him that she was in Canada, on February 8, 2016. There can be no serious argument that Mr Chaudry prospectively consented to the permanent relocation of the two youngest children from Bahrain to Canada.

22Mr Chaudry’s desire to seek reconciliation with Ms Khan does not imply acquiescence to her removal of two of the children from Bahrain back to Ontario. The evidence shows electronic discussions between the parties that included Mr Chaudry repeatedly trying to persuade Ms Khan to return to Bahrain with the children.

23I do not accept that Mr Chaudry failed to take diligent steps to locate his children. The parties were discussing resolution between February and May, 2016, and it was only when Mr Chaudry concluded that Ms Khan would not return to Bahrain that he took legal steps to locate his children and pursue these proceedings. This proceeding was commenced shortly thereafter. I see no delay on Mr Chaudry’s part that would give rise to an inference of acquiescence.

24I find that the two younger children were habitually resident in Bahrain where they lived with both parents. I find that the trip to Pakistan was a temporary leisure visit with family. Mr Chaudry consented to that trip but did not consent to the children taking up habitual residence in Pakistan. The children remained in Pakistan until January 26, 2016, when they were taken to Ontario. I find that the children were never habitually resident in Pakistan. Mr Chaudry did not consent to the children being brought to Ontario on any basis. I find that he did not consent to the children remaining in Ontario, and that his delay in pursuing an order for return of the children to Bahrain was a result of Ms Khan hiding herself and the children, and because of attempts by the parties to resolve their differences, and not because Mr Chaudry unduly delayed or acquiesced in the children remaining in Ontario.

25Thus the two youngest children were habitually resident in Bahrain, pursuant to s. 22(2)(a) of the CLRA. The children have not been habitually resident in Ontario pursuant to s. 22(2)(b) of the Act, and therefore their Bahraini habitual residence is the place where habitual residence “last occurred” for these children, within the meaning of s.22 of the Act.

26In summary, then, I find that all three children are habitually resident in Bahrain for the purposes of this application.

B. Jurisdiction Under CLRA s. 22(1)(b)

27Even though the younger children are habitually resident in Bahrain, and not Ontario, this court has jurisdiction over these children if the court is satisfied of the six factors set out in s. 22(1)(b) of the Act.⁸

28It is clear from a review of the cases that a determination under s. 22(1)(b) is a fact-driven exercise.

29In H.E. v. M.M.⁹ the trial judge found that the parties’ family and history was closely tied to Egypt, and that they came to Canada briefly while the father pursued employment. The trial judge ordered the children returned to Egypt. The case, as reflected in the trial judge’s reasons, is not on all-fours with the one at bar: the trial judge found that both parties had attorned to the Egyptian legal proceedings before the children were brought to Ontario. Indeed, not only had the parties already been divorced in Egypt, the children were living with the mother in Egypt and having periodic access with their father there. The extended families of both parents were in Egypt and involved with the children. The mother was, herself, born and raised in Egypt. In essence, the trial judge found that the case involved an Egyptian family which happened to have spent a brief time in Canada.

30The Court of Appeal reversed the trial judge in H.E. v. M.M., finding that jurisdiction should be exercised by Ontario pursuant to both s. 23 and 22(1)(b) of the Act.¹⁰ As I indicate below, I consider the case before me to be close to H.E. v. M.M. and I follow the reasoning in that decision in concluding that the courts of Ontario should exercise jurisdiction over the custody and access issues respecting the younger two children.

31In Hong v. Lin, the competing jurisdictions were China and Ontario.¹¹ The Court of Appeal ordered the children returned to China: the argument for Ontario jurisdiction under s. 22(1)(b) failed because the children were not present in Ontario when the application was commenced: for this reason it was “not necessary to go any further” in the analysis.¹²

32In Dovigi v. Razi, the Court of Appeal concluded that the court’s parens patriae jurisdiction does not arise where a child is not physically present in Ontario and is not habitually resident in Ontario: there is no jurisdiction in Ontario over such a child, but this does not mean that there is a “gap” in the legislation.¹³

33In Thomson v. Thomson, the family lived in Scotland. The child was born in Scotland. Legal proceedings were taken in Scotland and a temporary custody and access order was made in Scotland in proceedings in which both parents participated and attorned. After that order was made, and in breach of that order, the mother took the child to Manitoba and brought an application in Manitoba to permit her to stay there with the child.¹⁴ This is a far cry from the situation in the case at bar.

34In Turner v. Viau,¹⁵ the parties lived in Gatineau, Quebec, and the mother decamped across the Ottawa River to Stittsville, Ontario. There was obviously no concern about whether justice could be done in accordance with the best interests of the children in either Quebec or Ontario. Similar considerations applied in Brooks v. Brooks, where the competing jurisdictions were Ontario and Manitoba.¹⁶

35Mr Syrtash provided me with a copy of an order of the Supreme Court of British Columbia that orders return of children to Bahrain.¹⁷ Mr Syrtash was unable to provide me with the reasons of the British Columbia court. I accept, of course, that there are circumstances where a Canadian court would order return of children to Bahrain.

36What is clear from the cases is that the court must look at each of the six factors in s.22(1)(b) in order to decide whether it has jurisdiction over a children present in Ontario who are not habitually resident in Ontario.¹⁸

(i) Are the Children present in Ontario?

37The parties agree that the first factor is met: the two youngest children are physically present in Ontario.

(ii) Is Substantial Evidence Concerning the Children’s Best Interests Available in Ontario?

38I am satisfied that substantial evidence is available in Ontario concerning the children’s best interests. The friends and family of both parents are largely in Ontario. There are few other witnesses: these two children are still below school age and neither has unusual medical or other issues that would bring them into close contact with independent collateral witnesses such as doctors, teachers or the like. The parties have little connection to Bahrain, having lived there for slightly over two years and having had no connection to Bahrain before moving there.

39There is, of course, some evidence relevant to the children’s best interests available in Bahrain – there are nannies in Bahrain whose evidence would probably not be practical to obtain in Ontario, except perhaps by affidavit and/or Skype. On the other hand, there would be a significant impediment to the applicant returning to Bahrain to give her evidence, as is reflected in my analysis of the legal impediments to a custody and access case in Bahrain, discussed below.

40Ms Khan has provided affidavit evidence from numerous persons to corroborate her claims of physical and mental abuse by her husband, mostly dating back to their time together in Ontario. These witnesses are mostly in Ontario. Their evidence is likely relevant to the children’s best interests.

41During oral argument it was suggested that Mr Chaudry could not easily return to Ontario because he could face criminal prosecution for allegations of physical abuse of his wife and children here. This argument was characterized as Mr Chaudry being afraid of being caught up in an effort to defend against false accusations that could nonetheless see him arrested and unable to return to his employment in Bahrain. There is no evidence before me from Mr Chaudry about this point. There is no evidence that a criminal complaint has been made in Ontario. I consider this risk to be no more than speculative, and the risk that Mr Chaudry would be precluded from returning to Bahrain to be remote.

42On balance, I consider that there is substantial evidence in Ontario relevant to determining the children’s best interests. I find that it is likely that relevant Bahraini evidence could conveniently be presented in an Ontario court. I am not sanguine that the applicant would be able to present her case to a Bahraini court given the apparent impediments to her returning there and the risk that if she does, she could be unable to leave again if she wished.

(iii) Is an application for custody of or access to the children pending before an extra-provincial tribunal in another place where the children are habitually resident?

43In Obregon v. Obregon, the court concluded that this third criterion has to be read with a temporal eye: “I am satisfied that this criterion must relate and speak to the time the application in Ontario was commenced and not thereafter.”¹⁹ This makes sense: the other factors in s. 22(1)(b) imply some sort of comparison between Ontario and another place with jurisdiction over the children. There would be no point in making that comparison if the dispute could be decided by commencing proceedings in that other jurisdiction. And if it is open to an Ontario court to refuse to enforce an extra-territorial order, then it must also be possible to conclude that extra-territorial proceedings are not necessarily a bar to jurisdiction in Ontario.

44In the case before me, this contextual reading of factor (iii) needs to be taken further. Bahraini proceedings were commenced by Mr Chaudry before he commenced this proceeding in Ontario. Ms Khan never took the initiative to commence proceedings. Both parties recognized that they had an irreducible disagreement over whether the children should be in Bahrain or Ontario before proceedings were commenced anywhere. In H.E. v. M.M., the parties had litigated in Egypt and the mother brought the children to Ontario in breach of the order of the Egyptian court. The trial judge was critical of this conduct and emphasized the importance of the fact that the mother had attorned to and participated in the Egyptian proceedings. The Court of Appeal was critical of this reasoning and found that the trial judge had placed too much emphasis on attornment.²⁰ In the case before me, Ms Khan did not attorn to the Bahraini court, the proceedings were commenced after she left the country, and she received no actual notice or opportunity to participate in them. On the logic of H.E. v. M.M., the proceedings taken in Bahrain by Mr Chaudry after Ms Khan had left the country do not constitute a “pending proceeding” within the meaning of s.22(1)(b)(iii) of the CLRA.

45Finally, I conclude that the Bahraini proceedings have not been pursued in good faith in any event. Mr Chaudry knew how to reach Ms Khan to give her practical notice of the Bahraini proceedings. From Ms Khan’s perspective, the Bahraini proceedings were taken in secret, without notice to her, for the obvious purpose of precluding her from defending her position on the merits, both in Bahrain and in Ontario on jurisdictional grounds. The Bahraini court has already issued its order, and, for reasons set out below, this court will not recognize that order. Given all these circumstances, I find that there is no proceeding pending in Bahrain, within the meaning of s.11(1)(b)(iii) of the Act.

(iv) Has an Extra-provincial Custody or Access Order Been Recognized by a Court in Ontario?

46As of the date of hearing of this application there was a custody and access order of the Bahraini court but it had not been recognized by a court in Ontario. As I explain below, I decline to recognize this Bahraini order. Factor (iv) is satisfied by the applicant.

(v) Do the Children Have a Real and Substantial Connection to Ontario?

47There is considerable discussion in the case law about the effect of a connection established after a parent has wrongfully brought a child into Ontario. As stated by Campbell J. in H.E. v. M.M., it would not be appropriate to reward a parent for a situation she has “nefariously created” by wrongly bringing children to Ontario.²¹ But as the Court of Appeal noted firmly in H.E. v. M.M., the fact that this family already had a strong connection to Ontario when Ms Khan brought the children here is an important factor in the analysis.

48In this case the children in Ontario are young – 2 and 4 years of age. Their strongest connections are familial and by way of citizenship. The children are of Pakistani heritage, of families originating in Ontario, who happened to be in Bahrain because their father relocated there for work. The children are both Canadian. Even though Aariz had been out of Ontario for half her young life, and Zayna had never been to Canada before being brought here by her mother, the Canadian citizenship of the two children is an important connecting factor: in my view the children are entitled to expect that a Canadian court will take jurisdiction over them in these circumstances to protect them from being subject to a judicial system that places their father’s patriarchal authority in priority to their own best interests.

49The children are also connected to Ontario through their parents. Mr Chaudry says in his affidavit that the move to Bahrain was permanent. This claim is inconsistent with Mr Chaudry retaining ownership of the matrimonial home in Mississauga Ontario, which continues to contain furniture and personal effects of the parties (the parties took key portable possessions with them to Bahrain, but did not take most of the furniture they had in Canada). The parties and their children carry OHIP cards. The parties hold Ontario driver’s licenses. Both parties have maintained bank accounts in Canada. Prior to Ms Khan’s return to Canada, Mr Chaudry has come back to Canada for weddings and other social occasions.

50The family’s connection to Canada is also reflected in their citizenship and immigration status. Ms Khan and the children obtained a Bahraini residence permit in September 2015. Under Bahraini law, they were visitors to Bahrain until that time. Mr Chaudry claims that a “residence permit” is like “permanent residency” in Canada. It is not. A Bahraini residence permit is a temporary permit allowing a person to stay in Bahrain. The permit has an expiry date, typically one year, and is conditional upon continued employment, with the employer being the sponsor of the permit. If employment is terminated, the permit holder loses the permission to be in Bahrain and must return to her/his home country. Although Zayna was born in Bahrain, she is not a Bahraini citizen: she, like her siblings, is a Canadian citizen who is a temporary resident of Bahrain under a permit sponsored by her father’s employer.

51It is this aspect of this case that distinguishes it from many of the authorities relied on before me: the parties and the children are Canadian. They are not non-Canadians who have left their place of origin to try to take advantage of a legal system with different values than those in their place of origin. These are Canadian citizens seeking to avoid the application of foreign family law values in the context of a relationship breakdown. In the case before me it is clear that the move to Bahrain was intended to be temporary and the connection of the parties to Canada was continuing – Canada was not a connection that this family had severed and which Ms Khan now seeks to re-establish for juridical advantage.

52I conclude that the children have a strong connection to Ontario.

(vi) Balance of Convenience

53I conclude that the balance of convenience weighs in favour of taking jurisdiction over the children in Ontario for three principal reasons:

On a balance of probabilities, on the record before me, the respondent has engaged in a pattern of domestic abuse that will likely continue if the children return to Bahrain and if Ms Khan returns with them.
The legal principles applicable in Bahrain entail two potential consequences that are inconsistent with the best interests of the children and those of the applicant: (a) first, the best interests of the children are not the basis on which custody and access decisions are made; and (b) the role of husbands and wives is predicated on a model that assigns dominance and control to husbands over wives, within limits prescribed by law. This model of the role of husbands and wives, within a marriage, and within society generally, discriminates against women and is inconsistent with basic Canadian values.
A custody and access trial may be conducted in Ontario, with participation from Mr Chaudry, without material fear that Mr Chaudry’s freedom to carry on with his life as he sees fit will be compromised; if the custody and access trial is conducted in Bahrain, there is a material risk that either (a) the applicant will not be able to participate in that trial in a material way; or (b) the applicant will be unable to leave Bahrain subsequently and return to Canada without the respondent’s permission.

54There are two factors weighing against Ontario and in favour of Bahrain in the balance of convenience. First, of course, Mr Chaudry is currently resident in Bahrain and it will entail expense and time for him to return to Ontario for these proceedings. Given the presence of Mr Chaudry’s extended family in Ontario, steps in the litigation could be scheduled to coincide with family visits, and although there will be some inconvenience and expense for Mr Chaudry, it will not be undue.

55Second, it appears that Mr Chaudry may be reluctant to return to Ontario for two reasons:

(a) if he brings his eldest son, Ibrahim, there is some risk that the applicant will ask the Ontario courts to take jurisdiction over Ibrahim and order his non-removal from Ontario; and

(b) there is some risk that Ms Khan will pursue a criminal complaint against Mr Chaudry that could result in

(i) his arrest if he enters Ontario, and

(ii) release terms restricting Mr Chaudry’s ability to return to Bahrain.

1. Evidence of Domestic Violence

56The parties give markedly different evidence about their relationship with each other. Mr Chaudry argues that Ms Khan engaged in “improper communications with other men for romantic purposes” from the start of their marriage, although Mr Chaudry acknowledges that he is not aware of “any adulterous behavior” by Ms Khan. Ms Khan takes the position that she has never acted in a way towards other men that could give Mr Chaudry a legitimate basis for complaint. Both parties acknowledge that they “had frequent arguments” about this topic.

57Mr Chaudry’s evidence in his first affidavit casts this issue in the following light:

The marriage has not been peaceful. From the first few days [of the marriage], my wife has admitted to improper communications with other men for romantic purposes….”

58Ms Khan has denied this allegation in her materials. Mr Chaudry has not offered a single particular of this allegation – he has not given any examples of improper communications by his wife for romantic purposes. He has not given any particulars of his wife’s “admission”. He has provided no corroboration of these allegations. His allegations on this topic remain generalized. For the purposes of a family law proceeding in Ontario, none of this much matters much: there is “no fault” divorce in Ontario, and a litany of each party’s apprehended wrongs towards the other party – real or imagined – does not tend to advance the court’s understanding of the legally significant issues. However, the lack of particularization in the face of Ms Khan’s denials and her allegations of misogyny do tend to raise concerns about Mr Chaudry’s understanding of his marriage. Ms Khan characterizes her husband as jealous and controlling and more concerned about his honour and rights than he is about her.

59Ms Khan argues that Mr Chaudry has engaged in domestic abuse going back to the beginning of the marriage and continuing throughout it. Ms. Khan also alleges “that the children were physically and psychologically abused”. Mr Chaudry denies this conduct.

60Ms Khan argues that Mr Chaudry wishes to assert control over her and continue with their relationship when she does not wish to do this. She argues that if the children are returned to Bahrain, she will be forced to return there and will effectively be forced to return to Mr Chaudry against her will in order to be with her children, a situation that Mr Chaudry desires and she does not.

61I have only a partial record and am unable to assess the credibility of the key witnesses on a paper record in respect to these issues. However, the weight of the evidence before me, in written form, persuades me that there is substance to the allegations made against Mr Chaudry.

62The difficulties seemed to start at the outset of the marriage and led to Ms Khan’s mother speaking with Mr Chaudry’s family and seeking their intercession right after the honeymoon: Ms Khan complained of choking and other non-consensual physical force at the start of the couple’s life together. The response attributed to Mr Chaudry’s family was to the effect that they were aware that he had some issues and that they would speak with him to try to deal with things.

63The incident respecting an attack with clothes hangers in 2014 is confirmed by direct knowledge of Ms Khan’s brother. I appreciate that her brother is partisan. He is also a highly educated professional (a doctor), and his report of events, as heard by him over an open telephone line, and his account of his conversation with his brother-in-law, Mr Chaudry, in the aftermath, has the proverbial “ring of truth” about it: the words ascribed to Mr Chaudry are consistent with other words attributed to him and do not sound at all like the words of Dr. Mohammed Khan himself.

64There are numerous references to conduct attributed to Mr Chaudry that reinforces the sense that he may view his wife as a person under his control rather than as a partner in life. This conduct ranges from social indifference to his wife in settings where his attitude appears to have been obvious and remarkable to others, undercutting Ms Khan’s financial independence, and taking steps to restrict her freedom of mobility to travel.

65There is a separate incident where Mr Chaudry is alleged to have slapped his wife. There is another incident where Ms Khan had bruises on her arms that were attributed to Mr Chaudry. There is an incident where Mr Chaudry apparently threw tea at one of the children (there is a dispute as to whether the tea was “warm” or “hot”).

66Ms Khan deposes that she and Mr Chaudry stopped having marital relations in January 2015 because of problems in their relations, but that once, in November 2015, while under the influence of alcohol, Mr Chaudry forced himself on Ms Khan (an act that apparently is legal under the laws of Bahrain, where spousal sexual assault is apparently not an offence known to law).

67Concerns raised by this evidence are heightened by evidence that Mr Chaudry may have sought to interfere with witnesses in this case. Ms Khan alleges that she had friends willing to provide evidence on her behalf, but that these friends changed their minds. They did so because Mr Chaudry had contacted their husbands and persuaded the husbands to persuade them not to get involved in a domestic dispute between Ms Khan and Mr Chaudry. The allegations are troubling in their own right – it is not appropriate to seek to dissuade a witness from providing her testimony to a court. It is also troubling because the manner of interference with these witnesses reflects a view of the world which may lie at the heart of some of the problems here: it seems an effort to invoke a principle of male solidarity in the face of a wife’s complaints about the conduct of her husband.

68Mr Chaudry has filed affidavits from witnesses who attest to his good qualities as a husband and father. I found this evidence unpersuasive – not because it is not true or the witnesses are insincere, but because it is cast in general terms in unduly idealistic prose. It is clear that there were serious issues in this marriage, and reading the evidence of Mr Chaudry’s witnesses, one would not get that sense at all.

69It is not my task to assess the impact of findings on these matters on the issues of custody and access in the long run. Those are issues for trial on the custody and access issues. For the purposes of this motion, the question is whether, on a balance of probabilities, Ms Khan and the children will be exposed to domestic violence if Ms Khan returns to Bahrain with the children. I am satisfied that there is such a risk. In so concluding, I note that evidence of aggressive behavior towards the children is limited and, at this juncture, unpersuasive. However, I do accept that it is likely that the children have been exposed to the violence and oppression of their mother by their father, on an ongoing basis, and that this, itself, is a form of violence against the children.

70In reaching this conclusion I wish to be clear that these findings are based on the record before me and do not bind the trial judge deciding issues of custody and access.

2. Discrimination Against Women in Bahraini Law

71Mr Chaudry has filed expert evidence about family law in Bahrain. In it he establishes that there has been liberalization of Bahraini family law, as least as applies to Sunni Muslim families (which would apply to the parties and their children). I accept that there have been legislative changes that, on their face, would accord women greater rights and protection than was the case beforehand. However this evidence does not satisfy me that Ms Khan’s rights and interests would be protected satisfactorily, or that the issues of custody and access would be decided in the best interests of the children.

72In the World Economic Forum, Global Gender Gap Report, 2014, Bahrain is ranked 124 out of 142 countries in respect to the treatment of women. The UNICEF Social Institutions and Gender Index 2014 characterizes discrimination against women in Bahrain as “very high” in the context of family law. Physical violence by husbands against wives is permitted (within limits). Spousal rape is lawful. Testimony of women is not accorded equal weight to the testimony of men. Only the husband may seek a divorce, and in situations such as the case at bar, where it appears the wife wants a divorce and the husband does not, the common price a woman must pay for divorce is voluntarily relinquishing the children to the husband. The overall picture of the state of the law in Bahrain is summarized in the affidavit of Dr Jasser Auda, which I accept for the purposes of this motion. I found Dr Auda’s summary and analysis to be more thorough and comprehensive than that offered by Professor Fadel on behalf of Mr Chaudry.

73I appreciate that such a brief summary fails to capture the entire context of Bahraini family law. The point is this: until recently Bahraini family law could have been fairly characterized as a patriarchal form of Sharia law, where women are subordinated to men, and marital problems are often resolved through the intercession of the extended families of both spouses. That is not our way in Canada. As is reflected in our family law legislation, we reject this patriarchal model of justice.

74Bahraini law may well have become somewhat liberalized, for some families in Bahrain, but many of its central features remain, and there is no evidence before me that the law in practice is in fact yielding results for women and children that are consonant with western concepts of the rights and autonomy of women and the best interests of the child. I accept, for the purposes of this motion, Ms Khan’s expert evidence that states that little has changed, and that acceptance and true implementation of liberalized legal reforms will likely be a slow and uneven process.

3. Impediments and Inconvenience

75A criminal complaint has been made by Mr Chaudry against Ms Khan in Bahrain for removing the children to Ontario. If Ms Khan returns to Bahrain, it stands to reason that she will face prosecution for that complaint. Mr Chaudry has characterized Ms Khan’s conduct as a “criminal abduction” in argument before this court, and so there is no reason to believe that he will moderate his position about pursuing criminal prosecution in Bahrain.

76If Ms Khan returns to Bahrain, on the record before me, she could be prevented from leaving Bahrain by her husband.

77Ms Khan is not entitled to work in Bahrain and would have no way to support herself if she was not supported by Mr Chaudry. On the record before me, I am satisfied that if Ms Chaudry is required to return to Bahrain she would be at risk of being compelled by circumstances to resume cohabitation with Mr Chaudry. She does not want this and believes that part of Mr Chaudry’s motivation is to resume control over her. The totality of circumstances gives credence to this fear.

78Mr Chaudry will face inconvenience litigating the issue of custody and access in Ontario. I do not consider that the cost for travel will be inordinate: there is no evidence before me that he cannot afford it. I have mentioned a concern, stated in argument, that Mr Chaudry may face criminal prosecution for alleged domestic violence if he returns to Ontario for a custody and access proceeding. This may be so, but I do not see a basis in the record for concern that this would be a material impediment. Mr Chaudry has interests in Ontario, including real estate, friends and family, and has many reasons to want to be in a position to return here from time to time. Given the nature of the allegations in the materials, and the fact that they now arise in the context of family law proceedings where the parties are separated, the risk of prosecution is not likely to have a material effect on Mr Chaudry.

Conclusion: Balance of Convenience Favours Ontario Assuming Jurisdiction

79Taking all of these factors into account, I find that the balance of convenience weighs strongly in favour of Ontario exercising jurisdiction over these children.

The Bahraini Custody Order

80An order was issued by the Bahraini court on June 13, 2016 granting sole custody to Mr. Chaudry.

81Ms. Khan was not given notice of the Bahraini legal proceedings: notice was mailed to her at her Bahraini address, and, even though Mr. Chaudry had electronic addresses for Ms Khan, an address for her Canadian counsel, and addresses for her immediate family, he did not give her actual notice of the Bahraini proceedings. Not having received notice, Ms Khan had no opportunity to participate in the Bahraini proceedings.

82The Bahraini judgment, on its face, is predicated on Mr Chaudry’s rights as “guardian” of the children, and not upon the best interests of the children. The judgment also finds that “travel with the children to a foreign country constitutes a major hazard to the children’s life and to their religion.” No reasons are given to support these conclusions.

83I find that these circumstances bring this case within ss.41(1)(a), (b) and (c) of the CLRA, and for that reason this court will not recognize or enforce the Bahraini court order.

Conclusion

84I am satisfied that this court has jurisdiction to make an order for custody of and access to Aariz and Zayna pursuant to s. 22(1)(b) of the CLRA. My factual findings on this motion are on the basis of the record before me for the purposes of deciding jurisdiction and will not bind the trial judge deciding the issues of custody and access.

85Mr. Chaudry’s application for return of Aariz and Zayna to Bahrain is dismissed.

86I award temporary sole custody of Aariz and Zayna to Ms Khan. Mr Chaudry should be able to exercise access with Aariz and Zayna in Ontario on some reasonable basis. When Mr Chaudry is in Bahrain, he should be able to exercise reasonable access by skype or some alternate electronic method. For the time being, access shall be as may be agreed between the parties or as subsequently directed by the court; any motion on this issue should be brought back before me, if I am available. As requested by Ms. Khan, I also order on a temporary basis that neither Aariz nor Zayna be removed from Ontario.

87Issues of child and spousal support and property claims were raised but not argued fully before me. They should be addressed on a subsequent motion if they cannot be resolved at a case conference.

Costs

88The parties agreed at the hearing that costs of $27,500, inclusive, should be ordered to the successful party. Ms Khan has prevailed and shall have her costs from Mr Chaudry accordingly.

D.L. Corbett J.

Released: December 15, 2016

Footnotes

Children’s Law Reform Act, RSO 1990, c. C.12 (the “CLRA” or the “Act”).
“[S]pecialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case: In re J (a child)(FC), [2005] UKHL 40, para. 25. The applicable tests are set out in the CLRA, quoted in the body of this decision, and not in the Hague Convention.
CLRA.
RSO 1990, c. C.12, s.41.
RSO 1990, c. C.12, s.22.
RSO 1990, c. C.12, s.23.
See Katsigiannis v. Kottick-Kastigiannis (2001), 2001 CanLII 24075 (ON CA), 55 OR (3d) 456 (CA) for a discussion of the meaning of “acquiescence” in the context of an application under the Hague Convention. Since there is no basis at all for a finding of acquiescence in the case before me, I do not find it necessary to analyze the cases on acquiescence in detail.
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440, para. 9 (Ont. CA); H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 89 (Ont. SCJ); Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 21 (UFC).
H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133 (Ont. SCJ).
H.E. v.M.M., 2015 ONCA 813.
Wang v. Lin, 2013 ONCA 33.
Wang v. Lin, 2013 ONCA 33, para. 50.
Dovigi v. Razi (2012), 2012 ONCA 361, 110 OR (3d) 593 (CA).
Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 SCR 551.
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440 (Ont. CA).
Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 41 OR (3d) 191 (Ont. CA).
Al Thawadi v. Calvo (unreported, Sept. 19, 2013) (BCSC)(Vancouver File No. E132629).
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440, para. 9 (Ont. CA); H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 89 (Ont. SCJ); Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 21 (UFC).
Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 24 (UFC).
H.E. v.M.M., 2015 ONCA 813.
H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 105 (Ont. SCJ). See also Solem v. Solem, [2013] OJ No. 723, 2013 ONSC 1097.

Footnotes

Children’s Law Reform Act, RSO 1990, c. C.12 (the “CLRA” or the “Act”).
“[S]pecialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case: In re J (a child)(FC), [2005] UKHL 40, para. 25. The applicable tests are set out in the CLRA, quoted in the body of this decision, and not in the Hague Convention.
CLRA.
RSO 1990, c. C.12, s.41.
RSO 1990, c. C.12, s.22.
RSO 1990, c. C.12, s.23.
See Katsigiannis v. Kottick-Kastigiannis (2001), 2001 CanLII 24075 (ON CA), 55 OR (3d) 456 (CA) for a discussion of the meaning of “acquiescence” in the context of an application under the Hague Convention. Since there is no basis at all for a finding of acquiescence in the case before me, I do not find it necessary to analyze the cases on acquiescence in detail.
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440, para. 9 (Ont. CA); H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 89 (Ont. SCJ); Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 21 (UFC).
H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133 (Ont. SCJ).
H.E. v.M.M., 2015 ONCA 813.
Wang v. Lin, 2013 ONCA 33.
Wang v. Lin, 2013 ONCA 33, para. 50.
Dovigi v. Razi (2012), 2012 ONCA 361, 110 OR (3d) 593 (CA).
Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 SCR 551.
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440 (Ont. CA).
Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 41 OR (3d) 191 (Ont. CA).
Al Thawadi v. Calvo (unreported, Sept. 19, 2013) (BCSC)(Vancouver File No. E132629).
Turner v. Viau (2002), 2002 CanLII 41671 (ON CA), 26 RFL (5th) 440, para. 9 (Ont. CA); H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 89 (Ont. SCJ); Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 21 (UFC).
Obregon v. Obregon (1984), 1984 CanLII 576 (ON SC), 39 RFL (2d) 164, para. 24 (UFC).
H.E. v.M.M., 2015 ONCA 813.
H.E. v. M.M. (2014) 2014 ONSC 7409, 56 RFL (7th) 133, para. 105 (Ont. SCJ). See also Solem v. Solem, [2013] OJ No. 723, 2013 ONSC 1097.

Statutory Framework

A. Return of Children Removed from Bahrain and Retained in Ontario

B. The Bahraini Custody Order

C. Jurisdiction of Ontario Court

Does Ontario Have Jurisdiction?

A. Where Are the Children Habitually Resident?

B. Jurisdiction Under CLRA s. 22(1)(b)

(i) Are the Children present in Ontario?

(ii) Is Substantial Evidence Concerning the Children’s Best Interests Available in Ontario?

(iii) Is an application for custody of or access to the children pending before an extra-provincial tribunal in another place where the children are habitually resident?

(iv) Has an Extra-provincial Custody or Access Order Been Recognized by a Court in Ontario?

(v) Do the Children Have a Real and Substantial Connection to Ontario?

(vi) Balance of Convenience

1. Evidence of Domestic Violence

2. Discrimination Against Women in Bahraini Law

3. Impediments and Inconvenience

Conclusion: Balance of Convenience Favours Ontario Assuming Jurisdiction

The Bahraini Custody Order

Conclusion

Costs

Footnotes

Statutory Framework

A. Return of Children Removed from Bahrain and Retained in Ontario

B. The Bahraini Custody Order

C. Jurisdiction of Ontario Court

Does Ontario Have Jurisdiction?

A. Where Are the Children Habitually Resident?

B. Jurisdiction Under CLRA s. 22(1)(b)

(i) Are the Children present in Ontario?

(ii) Is Substantial Evidence Concerning the Children’s Best Interests Available in Ontario?

(iii) Is an application for custody of or access to the children pending before an extra-provincial tribunal in another place where the children are habitually resident?

(iv) Has an Extra-provincial Custody or Access Order Been Recognized by a Court in Ontario?

(v) Do the Children Have a Real and Substantial Connection to Ontario?

(vi) Balance of Convenience

1. Evidence of Domestic Violence

2. Discrimination Against Women in Bahraini Law

3. Impediments and Inconvenience

Conclusion: Balance of Convenience Favours Ontario Assuming Jurisdiction

The Bahraini Custody Order

Conclusion

Costs

Footnotes

Cited By (3 cases)

Aldush v. Alani, 2022 ONSC 1536

N. v. F., 2020 ONSC 7789

Atinuke Taibat Ojeikere v. Paul Olakunle Ojeikere, 2018 ONCA 372

Cited By (3 cases)

Aldush v. Alani, 2022 ONSC 1536

N. v. F., 2020 ONSC 7789

Atinuke Taibat Ojeikere v. Paul Olakunle Ojeikere, 2018 ONCA 372