COURT FILE NO.: FS-16-410258 DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PIERRE JOMAA Applicant – and – ROULA BECHARA Respondent

Counsel: Avy Ben-zvi, for the Applicant No one appearing for the Respondent

HEARD: May 23, 2017

M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The Applicant commenced this proceeding on May 17, 2016 seeking, amongst other things, a divorce, custody of the parties’ two daughters, ages two and five, and return of these children to Toronto from Lebanon where they currently reside with the Respondent. At trial, the relief sought by the Applicant was limited to an order that sole custody of the children be granted to the Applicant, that the children be returned to Toronto, and that the Respondent be held to be in contempt of two orders of this court.

[2] For reasons described below, I have granted much of the relief sought by the Applicant, including an order requiring the Respondent to return the children to Toronto, Ontario.

Background

[3] The Applicant has lived in Canada since 1989. He became a Canadian citizen in 1993. He was a member of the Canadian Armed Forces from 1993 to 1999. He has worked for Air Canada since 2000. He works approximately nine days per month.

[4] The Respondent moved to Canada from Lebanon in 2010. She became a permanent resident of Canada in 2012 and a Canadian citizen in November 2015.

[5] The Applicant and the Respondent were married in Lebanon on November 13, 2010. They started living together in Toronto on December 4, 2010.

[6] The parties have two children: Sophie, is five years old, and Emma, is two years old. The children were born and raised in Toronto.

[7] The Respondent took courses in Toronto to become a real estate agent. She did not pursue this career. The Respondent then started a daycare business in the basement of the matrimonial home in November 2015.

[8] The Applicant states that the Respondent expressed a strong desire to move to Lebanon after becoming a Canadian citizen. For instance, a text message from the Respondent to the Applicant on November 10, 2015 states: “If [you] want to rent the house and go to Lebanon am willing to. We can try one year and will see.” These discussions continued as reflected by text messages exchanged on February 20, 2016, when the Respondent sought the Applicant’s agreement to spend the summer of 2016 in Lebanon with their children. In March 2016, the Respondent sent the following text message to the Applicant: “If [you] really love me take me to Lebanon with the kids on Easter. We [have] the time off and the mean [ sic ].” The Applicant told the Respondent that he did not like visiting Lebanon as he did not feel welcomed by the Respondents’ parents. Nevertheless, the Applicant and the Respondent decided to go to Lebanon for Easter on March 16, 2016 with their children. The Applicant had arranged for a return flight on March 28, 2016 for all four family members. The parties stayed with the Respondent’s parents.

[9] On March 26, 2016, the Applicant states that he returned to the Respondent’s parents’ home. The day before, he had left the Respondent’s parents’ home after having a disagreement with the Respondent. The Respondent’s father told the Applicant that the Applicant needed to give him the passports if the Applicant wanted to see his children.

[10] On March 26, 2016, the Respondent gave the following statement to local police in Lebanon:

My name is Roula, daughter of Moussa and Eugenie Bechara. I was born in Brumana in 1975. I live in Brumana, East Road, Moussa Bechara Building, first floor; and in Canada in Toronto State. I am educated and married. I work as a babysitter in Canada.… I state that yesterday, around 6 p.m., a fight arose between my husband Pierre Gebrayel Jomaa and me at my father’s house in Brumana. We came from Canada to spend the holidays in Lebanon and because my husband insisted to come to Lebanon to solve old financial problems concerning the apartment I own in Jdeideh, El-Metn and in order to transfer the rental, to his own benefit, to our shared account in Lebanon and to ask for issuing a bank card that is necessary to withdraw the rental and use it in Canada, under the pretext that he needs money to renovate his house in Kobayat and to spend it on vital needs.

I add that, since last summer, he started to annoy and provoke me until he ended up beating and hurting me. This happened when we lived in Canada, because of his greediness and his desire to take over everything I own, after he had taken more than USD 40,000 from me. He always threatens to divorce and to deprive me of my two underage daughters. The youngest is a year and a half old and the other is 4 years old. When we were in Canada, he threatened many times to take revenge on all my family members and me by killing them all, if I made any mistake or tried to make my daughters stray away from him, because we got married in a Maronite Catholic Church, and the verdict would be to my own benefit .

Yesterday night, as I had mentioned, after we had attended the Good Friday rituals and come home, the fight became more intense. After I had talked to him about the rental of the apartment and the bank card, he started insulting me, went to the bedroom, and packed his belongings. I asked him not to leave, but he started threatening me again, then pushed me and slapped me…. [translator’s note: illegible] We were alone in the house. My passport and the Lebanese and Canadian passports of my daughters were always in his handbag. He said that, on Sunday noon, he would head to the airport in order to go back to Canada and that he would wait for my daughters and me to leave with him. He left the house and drove his father’s car. When I became alone and entered my room, I was devastated and started crying. My parents found out about what had happened after they had questioned me and seen me like that. I wanted to hide it from them for the sake of my family. This morning, I came to this police station to inform you of what happened to me and of what could happen to my family and me later on because of his reckless behavior and because he stole all our passports.

My face is hurting me because he slapped and pushed me and because I did not want to resort to forensic medical care. I would not have filed a petition against him, if things had not gone so far and if I had not been scared of him. If I leave with him to Canada, I will be alone with him, and nothing will stop him from hurting me.

This is why I am filing a petition against him for having threatened to kill the members of my family and me, stolen my passport and the passports of my daughters and insulted me. I ask you to investigate and transfer him to the competent legal authorities to criminalize him and stop him from hurting us. I ask you to give me a copy of this report to show it to the Canadian Embassy and to the ecclesiastic court after Easter vacation. This is my statement . [Emphasis added.]

[11] On Sunday, March 27, 2016, the Applicant gave the following statement to local police in Lebanon:

My name is Pierre Jomaa. My parents are Gebrayel and Sayde Jomaa. I was born in Burj Hammoud in 1970. I live in Lebanon, in Brumana, East Road, at my in-laws’ house. I do not have a Lebanese phone number. I am educated and married. I work in the Canadian airline WestJet. I am Lebanese.… I state that I willingly came to your police station with my father-in-law. My wife Roula Bechara had filed a petition against me for having hurt, beaten and threatened her and for having stolen her passport and the passports of my two daughters. The truth is that a fight arose between us two days ago, at her parents’ house, because I wanted to leave the house to pray. I assure you that I did not beat or insulted [ sic ] her. I consider what happened a misunderstanding. I regret leaving the house. I am ready to give my wife her passport and the passports of my two daughters to prove my good intentions. All I want is to protect my family. This is my statement.

[12] No charges were laid against the Applicant as a result of the Respondent’s complaint.

[13] The Applicant states that the Respondent’s statement to the police is largely fabricated. The Applicant states that he never struck the Respondent or threatened to physically harm the Respondent or her family. He also states that there were no financial issues to resolve in Lebanon. The Applicant states that the Respondent’s father was a former local police officer who arranged for the Respondent to give a false statement for the purpose of ensuring that the Respondent’s and the children’s Canadian passports were left in the possession of the Respondent. The Applicant admits that he met with the local police to give a statement. However, the Applicant states that he was never given the opportunity to read his statement nor was he told that the statement included allegations of physical harm or threatening. Further, the Applicant claims that the statement purportedly made by him, reproduced above, does not reflect what he told the police.

[14] As confirmed by a letter dated May 16, 2016, the Applicant called Global Affairs Canada and the Canadian Embassy in Beirut on March 27, 2016. He sought their assistance in relation to the return of the children to Canada. The Applicant states that he was told that the passports could be replaced.

[15] The Applicant testified that he gave the passports to the Respondent on March 27, 2016. He states that the Respondent’s parents “kicked him out” of their home and told him to come back in three days.

[16] The Applicant testified that on March 30, 2016 he went to his in-laws’ home. The Respondent was not there. The Respondent’s father told the Applicant that he needed to leave the children in Lebanon. Using a cell phone left in his jacket while he was not present, the Applicant surreptitiously recorded a conversation between the Respondent’s parents, which indicates their belief that the Respondent had decided to remain in Lebanon with the children without the Applicant and their desire that she do so.

[17] Without notifying the Applicant, on March 30, 2016, the Respondent petitioned the Maronite First Instance Unified Court in Lebanon for a travel ban to prevent the children from leaving that country for fear “that their father will take them to Canada and will deprive her of her right as a mother.”

[18] On March 30, 2016, the Applicant returned alone to Toronto.

[19] On April 1, 2016, the Maronite Court “… decided to prohibit the girls holder of both the Lebanese and Canadian nationality … [f]rom travelling outside the Lebanese territories until further notice.” The Applicant states that this travel ban remains in effect.

[20] On April 4, 2016, the Respondent advised the teachers at the school that Sophie attended in Toronto that she would be absent for two weeks. The Respondent sent a further email on April 11, 2016, advising that Sophie would be absent until the end of April 2016 as “[w]e have been forced to extend our vacation for family reasons in Lebanon.” On May 1, 2016, the Respondent advised the school by email that Sophie would not return to complete the 2016 school year. The Applicant was copied on these emails.

[21] The Respondent sent the following text message to the Applicant on April 25, 2016, which clearly indicates her dissatisfaction with living in Canada, her desire to raise the children in Lebanon and her request that the Applicant commute between Lebanon and Canada:

Pierre my dad is not ignoring you neither [your] SMS he was busy with saghbine election. He wanted you to come and [you are] welcome and [you are] member of family and he put you in his heart. We all forget when things become nice and smooth. They will love you if [you] treat me nice and respect me as [you] promised. My parents aren’t brainwashing me. the kids are in healthy family oriented environment, good french catholic schooling, less bullying and openness than canada. In canada during those years, staying with kids all day home not able to work did kill me once, loneliness did kill me twice, weather did kill me hundred, [you] killed me millions of times. Weather better here, no loneliness, work and taking care of kids is well balanced here even I earn less, (unless I work toward my PhDs and teach in university is good earning which I am planning to do just waiting for Emma to be 2) as long as things are balanced between my work and kids, I [don’t] want my work will take most of my time like in canada when I start working, I saw and spoke with others mum in canada . I want to focus on teaching them and raising them well until they grow and become independent…. remain our relation to focus on. Here 3 resolved out of one, here = less tension. In Canada 4 unresolved. That’s why am asking you to commute for the sake of your wife and kids if you want really this marriage. This is the solution and a chance to our relation. At a point in our life we will come back to canada, [that’s] why don’t want you to sell the house, you rent the upstairs and [you] ship kids belonging and car. You love me you want this family than you do it. My trust is low and my wounds are big I want them back [you are] the only one who can prove it to me. since already 3 things are resolved here, the only thing to work on it together is relation with a marriage consular here in Lebanon, adding to that we [have] a quality of time. My family will not interfere and no one will put his nose, we will have our own apartment. I will love you again and again if you prove me this love that [you are] saying, if [you don’t] act like dictatorship and most no agressivity and respect. After all I married you for love I married you to have a healthy peaceful family. All I want in life our kids to be happy, and us peacefully and respectfully with each other. [Don’t] want aggressive behavior and dictatorship in my life. [Emphasis added.]

[22] On May 2, 2016, the Respondent sent the following email message to a former daycare client in Toronto:

I have some unpredictable news.

We decided to stay here. I regret to let you know that I won’t be able to take a good care of Juliette. I apologize for the inconvenience. I did close “La Lune Daycare”.… [U]nfortunately I had to cancel everything for family reasons.

I registered Sophie in a good french catholic school and Emma soon will go to a daycare. I will start looking for a job and soon will enrol online for my valuation license in addition to renovating the apartment. My family will support us with the kids. Pierre will commute since is working with air Canada and he is flying most of the time. We are thinking to rent our house, we will leave the basement and thinking of spending winter here and summer in Canada.

So indeed lots of changes and it was a prompt decision.…

[23] The Applicant learned of the Maronite Court’s travel ban in May 2016 after a friend had attempted to arrange for the re-issue of passports at the Canadian Embassy.

[24] The Applicant commenced this proceeding on May 17, 2016.

[25] On May 18, 2016, at the Applicant’s request and without notice to the Respondent, this court ordered that (1) Sophie and Emma be returned to Toronto, Ontario immediately; (2) Toronto, Ontario is Sophie’s and Emma’s “habitual residence”; (3) the parties attend in court on June 30, 2016, at 10:00 a.m.; and (4) the court’s order and the Applicant’s motion materials be served on the Respondent.

[26] On the eve of the June 30, 2016 hearing date, the Respondent retained Trevor Smith as counsel. She requested an adjournment, to which the Applicant consented. The matter was adjourned to August 25, 2016.

[27] The Respondent brought a motion returnable on August 4, 2016 seeking the following substantive relief:

(1) An order that this proceeding be stayed, dismissed or suspended based either on s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 16(12) of the Family Law Rules, O. Reg. 114/99 or forum non conveniens;

(2) In the alternative, an order to (a) set aside or vary Justice Chiappetta’s order issued May 18, 2016; (b) stay, dismiss or suspend the portions of the Applicant’s claims for divorce and custody and access of the children “given the prior jurisdiction over those claims of the Unified Maronite Tribunal of First Instance in Zouk Mosbeh, Lebanon.”

[28] The Respondent’s motion was heard on August 25, 2016. This court adjourned the Respondent’s motion to a full day hearing on December 15, 2016. The court’s endorsement states:

Justice Chiappetta made an order on May 18, 2016 ordering the children to be returned immediately to Toronto and made a finding that their habitual residence is Toronto. This was all the relief asked for on the motion … before her.

The respondent has brought a motion in response to stay or dismiss the application or alternatively the order on the basis that there is a prior order from a Lebanese court that the children are not to be removed from Lebanon. The applicant suggests that this is not a valid order and that there are other orders of the Lebanese court that say otherwise.

There are affidavits from the parties as to what the various orders in Lebanon mean and whether they are enforceable. There is no expert evidence on any of this. The applicant appears to be involved in the Lebanese proceedings.

There is no possible way that this motion could proceed and be heard in one hour as scheduled. There is also no possible way, in my view, that it could be properly dealt with without expert evidence on Lebanese law and court procedure. Accordingly, this is adjourned to a full day hearing on December 15, 2016. The parties are to file their material as follows:

1. The respondent’s expert evidence and any further material is to be served and filed by [September 30, 2016].
2. The applicant’s responding material including expert evidence is to be served and filed by October 31, [2016]. As part of this the applicant is to serve and file any cross-motion and supporting material. The applicant argued today that he wanted to get Interpol involved and seek a contempt order, among other things. None of this was sought before Justice Chiappetta and there was no motion before me dealing with this. It will be up to the judge hearing this matter on December 15, 2016 to determine the order in which the motions are dealt with.
3. Any reply material from the respondent and any responding material from the respondent is to be served and filed by November 21, 2016.
4. Any reply material (to the response to his cross-motion, if any) is to be served and filed by November 30, 2016 by the applicant.
5. Factums and books of authorities are to be served and filed by December 9, 2016.

The motion shall be peremptory upon the Respondent .

Costs of today reserved to December 15, 2016.

If the applicant proceeds with a contempt motion it normally requires personal service. The respondent is in Lebanon. The applicant asks that any such service be made upon Mr. Smith, counsel for the respondent. Mr. Smith is agreeable to that. This court orders that personal service of any contempt motion be waived and that service upon counsel for the respondent be effective service upon the respondent . [Emphasis added.]

[29] On December 15, 2016, this court made the following endorsement:

The Respondent mother moves inter alia for an order to stay or dismiss the father’s Application and for an order to vary or dismiss the order of Chiappetta J. dated May 18, 2016.

The parties married in Lebanon and resided in Canada during the marriage. The parties have Canadian and Lebanese citizenship. The children of the marriage (age 2 and 5) were born in Canada and resided in Canada in the parties’ matrimonial home. The parties separated in Lebanon in March 2016. The parties disagree as to whether they had agreed to relocate to Lebanon as of the date of separation. The parties travelled to Lebanon with the children and had a fixed date for their return trip. The Respondent obtained an order from a Court in Lebanon which restricts the children from leaving Lebanon. Chiappetta J. heard an ex parte motion brought by the father and ordered the return of the children to Toronto. On August 25, 2016 Hood J. gave procedural directions to the parties to ensure that expert evidence on Lebanese law be served and filed on this motion.

The expert evidence re Lebanese law filed by both parties does not comply with the requirements of Rule 53.03 and I declined to admit the evidence. The orders and proceedings of the courts in Lebanon filed by the Respondent did not appear to be properly translated into the English language, and the translator had not sworn or affirmed that he or she was fluent in both languages. Those documents were ruled inadmissible on this motion.

In order to succeed, the Respondent had to establish that the Applicant’s case should be dismissed summarily. There is an issue to be tried as to whether the parties had agreed to relocate to Lebanon at the date of separation, as to the abuse the Respondent alleges to have suffered in Canada and while the parties were in Lebanon, and the expert reports filed by the parties do not agree as to the applicable laws and procedures in Lebanon.

It would not be appropriate to decide the issue of forum conveniens on motion in this case. A trial of the issue is required. The Respondent’s motion is adjourned to be determined on the trial of the issue. The parties are directed to arrange a case conference. The Respondent may participate at the case conference by telephone. The parties are to prepare a trial management conference brief for the case conference. The issues to be reviewed at the case conference are to include interim spousal support, child support, possession of the matrimonial home and equalization. The trial management conference briefs are to include the names of the witnesses to be called on the trial of the issue (forum conveniens), whether the Respondent’s testimony at trial may be given by video, and the time line for filing expert reports if any.

The parties may request further direction from as to the case conference and trial of the issue by motion in writing (Form 14B) via the Family Law Office.

Costs of today are to be fixed in accordance with the attached direction.

[30] At a case conference held on March 22, 2017, Justice J. Wilson made the following endorsement:

Motion/conference before me April 5, 2017 2:30.

Applicant to prepare offer to settle in accordance with my recommendation for the return of the children to determine what is in the best interests of the children on the merits. Typed copy to be provided to the Family Law Office.

[31] The handwritten offer to settle appended to Justice J. Wilson’s endorsement was made by the Applicant and is dated March 22, 2017:

The objective of this Offer to Settle is to facilitate the return of the children and the Respondent and to allow the issues to be heard on the merits and the terms are as follows:

The Applicant offers the following:

1. The forum non conveniens will be a preliminary issue to be dealt with by affidavit;
2. The Respondent shall immediately return to Toronto, Ontario with the children… The Applicant shall pay for the return flight tickets;
3. The Applicant shall vacate the matrimonial home and give exclusive possession of the matrimonial home to the Respondent and the children immediately upon her return to Toronto, Ontario until the issues in the said court proceeding have been resolved;
4. The Applicant will pay the matrimonial expenses so long as they are reasonable;
5. The Applicant shall secure funding for a lawyer for the Respondent so long as the fees do not exceed $200.00 per hour if the Respondent does not qualify for legal aid. The funding for the lawyer shall be reimbursed to the Applicant from the Respondent’s share of equalization and if there is not enough proceeds to cover the lawyer fees from her share of equalization, the Respondent shall be personally responsible for any amounts owing to her lawyer;
6. This offer is with prejudice and is open for seven days.

[32] On April 6, 2017, Justice J. Wilson issued the following order:

1. A trial date is set in this Court for May 22, 2017 to determine questions of custody and access in the best interests of the Children.
2. The Respondent, Roula Bechara, is in continued breach of the Order of Chiappetta, J. dated May 18, 2016 requiring the Respondent to return the children of the marriage … to Canada.
3. Clearly, the Ontario Court has jurisdiction to determine questions of custody and access for the Children. The Children were born in Canada, are Canadian citizens and dual citizens of Lebanon. They resided in Canada from birth until the Respondent decided while on vacation in Lebanon in March 2016 to terminate the marriage and to refuse to return the Children to Canada.
4. The Respondent argues that the Applicant consented to her remaining in Lebanon with the Children. The Applicant denies that he ever consented to this situation. That will be a matter for the trial judge to determine.
5. The Respondent, with the support of her family has obtained a travel ban from the Maronite Religious Court preventing the Children from leaving Lebanon. The Applicant has taken all steps possible, both in Lebanon, and through the Canadian Consulate and Global Affairs to lift the travel ban for the return of the Children.
6. To allow the Children to return to Canada the Respondent must take steps to set aside, lift or stay the travel ban.
7. To facilitate the return of the Respondent and the Children, the Applicant has made a with prejudice Offer in accordance with my recommendations to ensure that the Respondent has a residence in the matrimonial home, support and that the Respondent will be able to hire counsel of choice to act on her behalf. Presently she is represented by Trevor Smith. These measures ensure that the Respondent will be fairly and fully represented at the hearing.
8. That Offer is attached as “A” and its terms are incorporated [as] part of this order.
9. If the Respondent returns to Ontario, Canada for the hearing she may argue the question of the appropriate forum if she so chooses. She may also argue that it is in the best interests of the Children to reside with her in Lebanon. That is a question for the trial judge. I will not be the trial judge.
10. To streamline the process and reduce legal costs the parties will prepare their evidence in chief, and the evidence of any witnesses they intend to call in affidavit form. The trial judge will determine time limits for any additional evidence in chief and cross-examination.
11. The Applicant shall file his affidavit materials by April 30, 2017.
12. The Respondent shall file her affidavit materials by May 15, 2017.
13. The counsel for the Respondent shall all passports of the children, both Canadian and Lebanese, upon their return to Canada until further order of the Court.
14. If the Respondent returns to Canada with the Children and wishes to call evidence from witnesses in Lebanon she must provide notice to the Court of her intentions so that appropriate accommodation may be made.
15. The objective is to have this case fairly tried on the merits to assess what is in the best interests of the Children.
16. The parties and their counsel shall attend a settlement conference prior to the trial date to explore a resolution in the best interests of the Children before me on May 12, 2017 at 12:00 p.m.
17. The Respondent must return the Children to Canada to have status to participate in the hearing. If she does not return to Canada with the Children, she is in default of the outstanding order of Chiappetta, J. and has no status to participate in the hearing, or to file further affidavit material. The Applicant is at liberty in the case of continued default to bring contempt proceedings.
18. The Respondent shall have 7 days to provide notice of whether or not she is going to comply with the order of Chiappetta, J., set aside the travel ban, and participate in the hearing. [Emphasis added.]

[33] The typewritten offer to settle appended as Schedule “A” to Justice J. Wilson’s order dated April 6, 2017 is similar to the Applicant’s earlier offer. It states:

The Objective of this offer to settle is to facilitate the return of the children and the Respondent and to allow the issues to be heard on the merits and the terms are as follows:

1. The Respondent shall immediately return to Toronto, Ontario with the children… The Applicant shall pay for the return flight tickets.
2. The Respondent will have temporary exclusive possession of the matrimonial home located at [redacted] with the children immediately upon her return to Toronto, Ontario until court order or agreement by the parties or it has been two years since the Respondent took possession of the matrimonial home.
3. The Applicant will pay the matrimonial expenses so long as they are reasonable.
4. The Applicant shall secure funding for a lawyer for the Respondent in the a mount of $40,000 CAD (from the joint line of credit) which will be held in trust forthwith to Ben-zvi Barrister & Solicitor P.C. The funding for a lawyer of choice of the Respondent shall be paid immediately to her counsel of choice in trust as soon as the Respondent and the children resume residing in the matrimonial home.
5. The remaining proceeds of the joint line of credit in the amount of approximately $20,000.00 shall be immediately placed in Ben-zvi Barrister & Solicitor P.C. in trust.
6. The Respondent shall surrender all the children’s travel documents including but not limited to their passports to her counsel to be held in trust, as soon as she resumes residence in the matrimonial home.

[34] A settlement conference was held on May 12, 2017 before Justice J. Wilson whose endorsement reads as follows:

Trial date confirmed for May 23, 2017.

Affidavit as evidence in chief for Applicant.

1. Contempt motion has been served upon Respondent by personally serving her counsel Mr. T. Smith. These materials have been provided to the Respondent and she is aware of the contempt motion. Service validated for this motion. This will be heard at the trial.
2. Counsel has confirmed in writing that Respondent is not returning to Canada with children at this time.
3. Apparently the Respondent is intending to represent herself if she chooses to attend the proceeding. She is represented today by Mr. Smith and has chosen not to participate by way of conference call, as she has done in the past.
4. Mr. Smith may proceed to be removed from the record once in receipt of the original documentation. Service if any further affidavit material, or otherwise, shall be upon the Respondent at her email address confirmed by Mr. Smith to be: [redacted]
5. A copy of any further documentation will also be served upon Mr. Smith, and he undertakes to forward it his client (former client) by email.
6. By way of clarification, my order of April 6, 2017, supersedes the order of Justice Paisley dated December 15, 2016.
7. Costs of all proceedings to date including motions and conferences are to be determined by the trial judge.
8. All documents to be filed by no later than Wednesday, May 12, 2017 at 4 p.m. Affidavit material constituting evidence for the trial is to be separately bound and clearly indicated in a separate brief(s). [Emphasis added.]

[35] At the outset of trial, counsel for the Respondent, Mr. Smith, provided the court with an original copy of a Form 4 (Notice of Change in Representation), dated May 3, 2017, that he had received about 30 minutes earlier by courier. The form states that the Respondent has decided to represent herself in these proceedings. Accordingly, I granted Mr. Smith’s unopposed motion to be removed as solicitor of record for the Respondent. Mr. Smith advised that the Respondent was aware that the trial was proceeding as scheduled on that same date.

[36] The Respondent did not attend the trial, and it proceeded in her absence. In any event, given paragraph 17 of Justice J. Wilson’s order dated April 6, 2017, the Respondent was not entitled to participate at trial as she has not returned the children to Canada.

[37] At trial, the Applicant testified and also relied on the evidence found in several affidavits in the Applicant’s Trial Record, described below.

[38] The following issues are raised:

1. Does this court have jurisdiction to make the order for custody and access sought by the Applicant?
2. Should sole custody of the children be granted to the Applicant?
3. Should the Respondent be found in contempt of this court’s orders?
4. Should police organizations be ordered to locate, apprehend and deliver the children to the Applicant in Toronto, Ontario?

Issue #1 – Does this court have the jurisdiction to make an order in respect of the custody of and access to the children?

[39] In H.E. v. M.M., 2015 ONCA 813, 341 O.A.C. 359, at paras. 22-26, leave to appeal dismissed, [2016] S.C.C.A. No. 63, the Ontario Court of Appeal stated that an Ontario court can exercise its discretion to assume jurisdiction under the Children's Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”) to make an order for custody of or access to a child if any one of the following criteria are satisfied:

• If the child is “habitually resident” in Ontario at the commencement of the application for the order (see CLRA, s. 22(1)(a));
• Although the child is not habitually resident in Ontario, if the child is physically present in Ontario at the commencement of the application for the order and certain other requirements are met (see CLRA, s. 22(1)(b));
• If the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm under certain circumstances (see CLRA, s. 23); or
• If the court exercises its parens patriae jurisdiction to fill a legislative gap (see CLRA, s. 69).

Are the children “habitually resident” in Ontario?

[40] Section 22 of the CLRA provides:

Habitual residence

(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

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

whichever last occurred.

Abduction

(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.

[41] The evidence shows that the children were born in Toronto, Ontario and resided in the matrimonial home located in Toronto, Ontario from the time of their birth until they left with the parents for a two-week vacation to Lebanon from which the children (and the Respondent) have not returned. I find that the children are “habitually resident” in Toronto, Ontario.

[42] The evidence shows that the Applicant did not consent to the children remaining in Lebanon with the Respondent. The Applicant commenced this proceeding shortly after returning to Canada for a court order to have his children returned to his custody in Toronto, Ontario. I find that there has not been “acquiescence or undue delay in commencing due process” by the Applicant within the meaning of s. 22(3) of the CLRA.

Is there a more appropriate forum?

[43] Section 25 of the CLRA provides that a “court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.”

[44] The Respondent has participated, with legal counsel, in this proceeding for almost 11 months. The Respondent has alleged that the Lebanese court is the more appropriate forum. This argument was first raised by the Respondent in written submissions on August 4, 2016, and was heard by way of motion to stay or dismiss the father’s application and for an order to vary or dismiss Justice Chiappetta’s order on December 15, 2016. The Respondent’s motion was dismissed on the grounds that the expert evidence regarding the law of Lebanon was inadmissible and the orders and proceedings of the Lebanese courts filed by the Respondent were not properly translated into English. The Respondent has taken no further steps to put admissible evidence before this court. While it appeared that the Respondent would advance this issue at trial, she chose to end her relationship with her legal counsel shortly before trial and failed to appear.

[45] Accordingly, I am not persuaded that this court should decline jurisdiction on the basis that there is a more appropriate forum for jurisdiction to be exercised outside of Ontario.

Conclusions

[46] As outlined above, given that the children are habitually resident in Ontario, this court has jurisdiction to make an order in respect of the custody and access to the children. I am not satisfied that there is any reason for this court to decline such jurisdiction.

[47] Accordingly, I order that Ontario has jurisdiction, and should exercise such jurisdiction, to make an order for matters pertaining to the custody of, and access to, the children.

Issue #2 – Should sole custody of the children be granted to the Applicant?

[48] A parent of a child may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child: see CLRA, s. 21(1).

[49] A court has broad powers in crafting an order for custody of or access to a child. The court may grant the custody of or access to a child to one or more persons, determine any aspect of the incidents of the right to custody or access, and make such additional order as the court considers necessary and proper: see CLRA, s. 28(1).

[50] An order for custody of or access to a child must be made in the “best interests of the child”: CLRA, s. 24(1). The following considerations are relevant in assessing the best interests of a child:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[51] The Applicant provided the following evidence at trial.

[52] Elie Chamieh is a supervisor at the Canada Border Services Agency. He has known the Applicant for over 15 years. He visited the Applicant’s home on many occasions and went on family trips with the Applicant, the Respondent and the children. In his affidavit, sworn April 27, 2017, Mr. Chamieh states:

Pierre has always been a caring and loving father. He provided them with all his love and attention. He took parental leave for both his children at the time, and stayed home with both the daughters. He wanted to help out as much as he could. He completed all his chores at home and would never hesitate in helping with the children. As a proud father, he loved and nurtured them and wanted to spend all his time with them to watch them grow. Their daughters reciprocated the love towards him. Pierre would often take his family on multiple vacations for their enjoyment and happiness every couple of months. Pierre would also take his family to church regularly as he wanted to instill good values in his children.…

Pierre has always has been responsible and a caring father towards his children and wife. Therefore, I have no doubt that he will continue being caring and loving towards children in the future. He has always put his family first, even before himself, which is a rare quality to possess these days.

[53] Simon Youssef works with the Applicant and has known him for 13 years. In his affidavit sworn April 27, 2017, Mr. Youssef states:

I have witnessed Pierre making his wife and children his number one priority in his life. He works very hard to ensure he can provide for his family and give them everything they need.

Pierre has been very involved in his children’s lives. He used to volunteer at his children’s schools to ensure he is always there for his children and gets to spend as much time with them as possible.

[54] Maged Wassef has been the dentist to the Applicant, the Respondent and the children since 2014. Dr. Wassef became friends with the parties. In his affidavit, sworn April 27, 2017, Dr. Wassef states:

After meeting Pierre at my clinic, a great friendship started when my wife and I got to know Pierre and his family personally.

Pierre is a true gentleman and a great father. This is evident in the loving and endearing way he treated his wife and the way his daughters would be overjoyed when spending time with him.…

My wife and I had several dinner parties with Pierre and his family. Pierre would always bring his children and prefer the [ sic ] leave the parties early to take his children home in time for their bed time, instead of hiring baby sitters to watch his children. Pierre would also watch the children during dinner, to allow his wife to eat in peace without interruptions from the children.…

Through out [ sic ] the years, I have gotten to know Pierre and he has proven time and time again that he is a hardworking, caring, patient, trustworthy, reliable and a kind man. He is a devoted husband and father who works hard to provide for his family as well as strives to be an excellent role model for his children.

[55] Tina Matthews is the primary family physician for the Applicant, whom she has known since 2009, and for his family. In her affidavit, sworn April 27, 2017, Dr. Matthews states:

On November 1, 2011, Mr. Jomaa came to my office as a patient, as he had no prior health problems and never a need for a Family Physician until that time. Mr. Jomaa was then married and had a new baby girl … who needed a Family Physician. Mr. Jomaa has been very involved in the care of his family, including his [oldest daughter], as well as his wife, Roula Bechara, and then later in the care of the couple’s second daughter … after she was born.…

I have always noticed Mr. Jomaa and his family to be very clean, and well groomed when they attend my office, showing he ensure his children are well taken care of.

Mr. Jomaa was almost always present with his children for their appointments, showing his concern about his family’s health and well-being, and ensuring that the children were gaining weight appropriately, that their immunizations were up-to-date, and their developmental milestones were being met.

When Mr. Jomaa’s wife or his daughters fell ill or had a rash or an allergic reaction, he brought them to my office for a check up and any necessary treatment.

I have seen Mr. Jomaa as truly being a doting and loving father as well as husband, who adores his family unconditionally.

I have never noticed any signs or evidence of abuse on the children or his wife and there was never any suspicion or evidence of discord between Mr. Jomaa and his wife, Roula Bechara, either verbally or physically.

In fact, Ms. Bechara’s recent conduct of abducting Mr. Jomaa’s children and keeping them in Lebanon while preventing them from seeing their father felt as shocking to myself and my staff as it did to the unfortunate husband and father, Mr. Jomaa.

I have known Mr. Jomaa to be a trustworthy, moral and honourable man, who is a loving father and husband.…

[56] Shala Alkhalili has known the Applicant and the Respondent as a couple since 2010, and the Applicant as a friend and colleague from before that time. Ms. Alkhalili’s affidavit, sworn April 27, 2017, states:

Pierre is caring and helpful as a husband and father. He would assist Roula as much as he could in anything she wanted. He helped to feed and change Emma’s diapers and took care of Emma as a caring and loving father would.

I have been close to Pierre and his family and would often go to their house for dinner and even visit Roula and the children when Pierre was at work. Roula had no issues with Pierre and would never complain about him. She seemed happy, as was [the younger child].…

[57] Mary Grogan is a counsellor and educator for children and has been the Applicant’s friend and neighbour since 2014. Her affidavit, sworn April 25, 2017, states:

Pierre is a responsible, intelligent, moral, and caring man with a strong work ethic and a great capacity for a genuine friendship. Pierre is a disciplined man of integrity whose word is honourable and trustworthy. He has a mature philosophy and approach to life whereby he seeks a balance with meaningful work and his loving family. Pierre’s decision to take an extended parental leave of 9 months so that he could help support his wife and nurture his children, when his daughter was born, is exemplary. …

I have had the privilege of a close friendship with Pierre and have often visited him at his home or spent time with him at my home so I have gotten to know Pierre closely….

Pierre always displayed a high standard of care when it came to his family. He showered his children with toys and spent a lot of time with them. His children always seemed happy and eager to spend time as well as learn from him. Pierre has always been very proud of his children and their accomplishments. He proudly shared the children’s development in their vocabulary, their ability to eat independently, their ability to successfully participate in activities such as puzzles, and games.

Pierre is a natural, enthusiastic, and engaged father, who enjoys spending time with his children. I witnessed him feeding, dressing, soothing and playing with his children. He took his children for regular medical checkups, and routinely took the children out to spend time with them while also giving his wife a break and time to relax. His children always responded very enthusiastically towards him.

I witnessed how he always helped his wife with household chores including cooking, and how he spoke to his wife with endearment and affection. I always admired the way he encouraged and supported his wife to engage in new friendships with other women and families in the neighbourhood including in his Lebanese RC church community.

Pierre enthusiastically cared for his children when his wife needed time to study for her real estate exam or to prepare applications for work. Pierre always express [ sic ] pride in his wife’s business degree and experience. He often adjusted his work schedule to accommodate his child care responsibilities when his wife was becoming busy with her professional career….

[58] Antoine Ghanime has been the Applicant’s friend and colleague since 2000. His affidavit, sworn April 26, 2017, states:

Pierre and Roula got married and Pierre brought Roula to Canada, where he was already established, had a good job, and a nice house to start a family. When Roula became pregnant with their first child, Pierre was very happy and excited. Pierre worked very hard to be able to pay off all of Roula’s medical bills and her medical fees as she did not have her Canadian permanent residency at that time and did not have health coverage from OHIP.

Pierre and Roula became like family to me and my family. We used to often invite each other’s families over for dinners and would spend weekends together at my family’s farm house in Orangeville, Ontario.

[The oldest daughter] was a very happy child and a spitting image of her dad, Pierre. She was very close and attached to Pierre. During their visits, Pierre and his family would stay overnight and from what my family and I had witnessed, Pierre and Roula seemed to be the perfect couple. There was no indication of abuse or trouble in their relationship.

Pierre’s conduct always showed him as a perfect father and husband. Pierre used to feed [the oldest daughter], change her diaper, and give her a bath. He was very involved in his child’s care. My family and I had never noticed any violent behaviour from Pierre or Roula.

The couple then had a second child … and their family seemed to be doing really well.

Roula had lots of dreams and ideas about doing business from home where she could contribute to the expenses of the home. Pierre was always supportive of her ideas and would always encourage her to follow her dreams but unfortunately, Roula’s ideas never matured and did not follow through with her plans. Roula had ideas about importing jewellery, providing daycare, owning a rental property or becoming a Realtor.

I never witnessed any trouble between Pierre and his wife nor did I witness any extraordinary disagreements. They only had minor occasional disagreements that any other couple has but there were no signs of any trouble or abuse.…

[59] The Applicant states that he has a strong emotional bond with his children and has always been a good father. This assertion is supported by the evidence of his friends, neighbours, doctor and dentist. The Applicant took a nine month parental leave of absence after his daughter Emma was born in order to care for the children. The Applicant testified that he performed many of the day to day tasks associated with raising children ranging from feeding and bathing the children to playing with the children. The Applicant’s relationship with his children is now limited by the Respondent to speaking with them for a few minutes each week by Skype or Facetime.

[60] The Applicant stated that he had a loving and happy relationship with the Respondent for many years. However, he found that the Respondent’s attitude towards him changed once she became a Canadian citizen as the Respondent was determined to return to Lebanon for a lengthy period. Their relationship became strained as the Applicant was unwilling to move his family to Lebanon as requested by the Respondent. Despite the Respondent’s actions, the Applicant continues to care for the Respondent.

Conclusions

[61] The Respondent’s unilateral decision to keep the children in Lebanon and to remove them from their father and their home in Canada – especially in light of her explanation via text message dated April 25, 2016, as well as her continued refusal to return the children to Canada in accordance with Justice Chiappetta’s order issued more than one year ago – demonstrates not only the Respondent’s arrogance and selfishness but also that the Respondent has placed her own personal interests far ahead of the best interests of the children.

[62] On the other hand, I find that the evidence before this court shows that the Applicant has a strong emotional bond with both children and has always been a good, loving father to them. The evidence shows that the children love the Applicant as well. There is no suggestion of violence or abuse against the children or the Respondent. I find the Respondent’s suggestion that the Applicant was abusive with the Respondent to be a bald, self-serving assertion that is not credible given that she did not appear at trial to be cross-examined on such allegations.

[63] The evidence includes screenshots of text messages showing the Applicant used inappropriate language towards the Respondent. However, there is no evidence to show that the Applicant has ever been abusive towards the children or that the name-calling that appears in the text messages escalated.

[64] The Applicant testified that he works about nine days each month and that he would make arrangements for the care of the children when he was away from home. He has explained that his parents live in Montreal, but that they intend to move to Toronto to live with the Applicant to assist in caring for the children in the event that he is granted sole custody. The Applicant has demonstrated that he has a strong network of friends and neighbours who care deeply for him. Further, the children’s family physician and dentist are located in Toronto. Sophie had attended elementary school in Toronto prior to her removal to Lebanon. Given the evidence described above, I am satisfied the Applicant has the ability and willingness to provide the child with guidance and education, the necessaries of life and any special needs of the children, in a stable environment. I also accept the Applicant’s evidence that it is much safer for the children to be raised in Canada rather than in Lebanon given the political and military conflicts in and around Lebanon.

[65] The Respondent’s affidavit explains that the children are well settled in Lebanon and that the older child is enrolled in extracurricular activities. She adds that they have many extended family members nearby. The Respondent claims to have been the children’s primary caregiver since their birth. However, she has not provided a plan for the children’s care and upbringing.

[66] Children need not only both of their parents’ love but also their presence, care, guidance and support, where it is safe to do so. It is tragic that the children are being deprived of a meaningful relationship with their father, and that they have been torn away from their habitual residence, as a result of the Respondent’s unilateral choices. In my view, it is in the best interests of the children for the Applicant to have sole custody of the children with liberal access for the Respondent as determined in the Applicant’s discretion. Should such access be unreasonably withheld by the Applicant notwithstanding the obvious trust issues caused by the Respondent’s behaviour, then this court can be petitioned to vary the terms of access.

[67] Further, the fact that Lebanon is not a signatory to the Hague Convention is a factor that favours granting sole, rather than joint, custody of the children to the Applicant, although the children’s best interests are the primary consideration: see Karkar v. Karkar, 2009 ONSC 50754.

[68] I find, as submitted by the Applicant, that it is in the best interests of the children to grant the following order:

1. The Respondent shall, at her own cost, immediately return the children to Toronto, Ontario.
2. The Respondent shall, at her own cost, immediately take whatever steps are required to lift the travel ban imposed by a court in Lebanon, if any, that prevents the children from being returned to Toronto, Ontario,
3. The Applicant shall have sole custody of the children.
4. The children’s primary residence shall be with the Applicant in Toronto, Ontario.
5. The Respondent shall have liberal access to the children at the discretion of the Applicant.
6. Counsel for the Applicant shall hold all passports (including Canadian and Lebanese passports) issued in respect of the children until further order of this court.

Issue #3 – Is the Respondent in contempt of this court’s orders?

[69] The Applicant’s Notice of Contempt Motion advises the Respondent that a “motion will be made by … the Applicant … for a finding that you are in contempt of the court because you … failed to comply with the Order of the Honourable Justice Chiappetta dated May 18, 2016, and the Order of the Honourable Madam Justice Wilson, J. dated April 6, 2017.”

[70] Subsection 1(8) of the Family Law Rules, O. Reg. 114/99, provides:

Failure to Obey Order

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[71] Rule 31 of the Family Law Rules, provides, in part, that:

When Contempt Motion Available

31. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.

Notice of Contempt Motion

(2) The notice of contempt motion (Form 31) shall be served together with a supporting affidavit, by special service in accordance with subrule 6 (4), unless the court orders otherwise.

Affidavit for Contempt Motion

(3) The supporting affidavit may contain statements of information that the person signing the affidavit learned from someone else, but only if the requirements of subrule 14 (19) are satisfied.

Warrant to Bring to Court

(4) To bring before the court a person against whom a contempt motion is made, the court may issue a warrant for the person’s arrest if,

(a) the person’s attendance is necessary in the interest of justice; and

(b) the person is not likely to attend voluntarily.

Contempt Orders

(5) If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

[72] The Applicant seeks an order that the Respondent “… is in contempt of court and she shall not have any status to participate in the within proceedings or to file any further affidavit material and that the within proceedings shall continue as default proceedings.”

[73] A finding of civil contempt requires that 1) the order that was breached states clearly and unequivocally what should and should not be done; 2) the party disobeying the order does so deliberately and wilfully; and 3) the evidence shows contempt beyond a reasonable doubt, with any doubt clearly resolved in favour of the party allegedly in breach: see Prescott-Russell Services for Children and Adults v. N.G. (2006), 2006 ONCA 81792, 82 O.R. (3d) 686, at para. 27 (C.A.).

[74] I am satisfied beyond a reasonable doubt on the evidence that the Respondent is in contempt of Justice Chiappetta’s order dated May 18, 2016. The order clearly required that the children be returned to Toronto, Ontario immediately. The evidence shows that the Respondent is well aware of the order, as well as this contempt motion, but yet has deliberately and wilfully chosen not to comply with the order.

[75] Given her conduct, I find that the Respondent is not likely to attend voluntarily before this court. I find that it is just to issue a warrant for the Respondent’s arrest to bring her before this court to explain why she should not be imprisoned.

[76] Further, I order that the Respondent shall not have any status to participate in the within proceedings (including filing evidence) without first appearing in person before this court and obtaining permission from the court to do so. Further, I order that service of any document by the Applicant on the Respondent in this proceeding is dispensed with until the Respondent complies with Justice Chiappetta’s order dated May 18, 2016, as well as the orders that I have made today.

[77] Finally, I also note that when she became a Canadian citizen in November 2015, the Respondent would have made the following oath or affirmation of citizenship as required by the Citizenship Act, R.S.C. 1985, c. C-29, ss. 3(1)(c), 24:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

[78] It appears that this declaration was not solemnly made by the Respondent given that (1) it is clear from the orders and endorsements issued in this proceeding that the Respondent is aware that this court has ordered her to return the children to Toronto, Ontario; and (2) the Respondent has deliberately chosen to not return the children to Toronto, Ontario as ordered by Justice Chiappetta more than one year ago. I am troubled that in failing to comply with Justice Chiappetta’s order, after unsuccessfully attempting to have it set aside, the Respondent has shown complete disregard for the laws of Canada.

Issue #4 – Should police organizations be directed to locate, apprehend and deliver the children to the Applicant in Toronto, Ontario?

[79] The Applicant asks that the following orders be made:

5. An Order directing the International Police Organization (INTERPOL), INTERPOL National Central Bureau (NCB) for Lebanon (located in the ISF headquarters, INTERPOL Beirut is part of the ISF International Relations Department, and reports directly to the Director General), the Royal Canadian Mounted Police (R.C.M.P.), Ontario Provincial Police (O.P.P.), Internal Security Force in Lebanon (I.S.F.) or any other police service to do all things reasonably able to be done to locate, apprehend and deliver the children … to the Applicant, Pierre Jomaa;
6. An Order directing the International Police Organization (INTERPOL), INTERPOL National Central Bureau (NCB) for Lebanon (located in the ISF headquarters, INTERPOL Beirut is part of the ISF International Relations Department, and reports directly to the Director General), the Royal Canadian Mounted Police (R.C.M.P.), Ontario Provincial Police (O.P.P.), Internal Security Force in Lebanon (I.S.F.) or any other police service where the children [are] … to enforce any and all court Orders of this Honourable court in relation to the Custody and residency of the children …;
7. An Order that any member of International Police Organization (INTERPOL), INTERPOL National Central Bureau (NCB) for Lebanon (located in the ISF headquarters, INTERPOL Beirut is part of the ISF International Relations Department, and reports directly to the Director General), the Royal Canadian Mounted Police (R.C.M.P.), Ontario Provincial Police (O.P.P.), Internal Security Force in Lebanon (I.S.F.) or any other police service may enter and search any place where he or she has reasonable and probable grounds for believing the children … may be with such assistance and such force as are reasonable in the circumstances;
8. An Order that any member of International Police Organization (INTERPOL), INTERPOL National Central Bureau (NCB) for Lebanon (located in the ISF headquarters, INTERPOL Beirut is part of the ISF International Relations Department, and reports directly to the Director General), the Royal Canadian Mounted Police (R.C.M.P.), Ontario Provincial Police (O.P.P.), Internal Security Force in Lebanon (I.S.F.) or any other police service an entry or a search referred to in part 4-7 of this Order shall be made only between 5 a.m. and 10 p.m. standard time…

[80] The Applicant relies upon s. 36 of the CLRA as authority for these orders.

Order where child unlawfully withheld

36. (1) Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be.

Order to locate and take child

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;

(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or

(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order .

Application without notice

(3) An order may be made under subsection (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay.

Duty to act

(4) The police force directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order .

Entry and search

(5) For the purpose of locating and apprehending a child in accordance with an order under subsection (2), a member of a police force may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be with such assistance and such force as are reasonable in the circumstances.

Time

(6) An entry or a search referred to in subsection (5) shall be made only between 6 a.m. and 9 p.m. standard time unless the court, in the order, authorizes entry and search at another time.

Expiration of order

(7) An order made under subsection (2) shall name a date on which it expires, which shall be a date not later than six months after it is made unless the court is satisfied that a longer period of time is necessary in the circumstances.

When application may be made

(8) An application under subsection (1) or (2) may be made in an application for custody or access or at any other time. [Emphasis added.]

[81] It appears that s. 36 of the CLRA is directed at situations where a child is withheld in Ontario from a parent.

[82] While the Applicant’s request for the above order is understandable, the broad language of s. 36 of the CLRA does not give this court authority to make orders requiring foreign police forces to search premises, remove children or return children to Ontario. Given the doctrine of territorial sovereignty whereby each state exercises exclusive jurisdiction over its own territory, it is my view that this court has no jurisdiction to require that a police force outside of Ontario take the steps described under s. 36(2) and (5) of the CLRA unless those police forces consent: see Sullivan on the Construction of Statutes, 6th ed. (Markham, Ontario: LexisNexis Canada Inc., 2014) at pp. 837-856.

[83] None of the case law provided by the Applicant is a precedent for, or otherwise supports, the extra-territorial nature of the order he seeks: see R. v. M.E., 2016 ABPC 250; Dziedzic v. Glyzina, 2012 ONCJ 574; Skura v. Fibingr, 2014 ONSC 1014; Charles v. Williams, 2014 ONSC 509.

[84] Nevertheless, there exists a parens patriae jurisdiction founded on the need to act in the “best interests” of those who cannot care for themselves in order to protect them: E. (Mrs.) v. Eve, 1986 SCC 36, [1986] 2 S.C.R. 388, at paras. 73-74.

[85] Lebanon is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). The purpose of the Convention “… is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence”: see “Outline: Hague Child Abduction Convention”, HCCH Hague Conference on Private International Law (online) (May 2014). However, the governments of Lebanon and Canada have entered a bilateral agreement entitled “Agreement between the Government of Canada and the Government of the Lebanese Republic Regarding Cooperation on Consular Matters of a Humanitarian Nature” (the “Agreement”). The Agreement provides for the establishment of a joint commission to consider various matters including to “… ensure respect for the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if these relations or contact are contrary to the child's best interests, as provided for in the United Nations Convention on the Rights of the Child.”

[86] In my view, this court’s parens patriae jurisdiction may be used, to the extent possible, to exhort foreign police forces, governments and others to take whatever action they can to protect the children from the harmful effects of abduction and retention in a foreign country. Some of those steps are described in International Child Abduction: A Guidebook for Left-Behind Parents.

[87] Accordingly, I find that it is in the children’s best interests to request that: (1) any police force or organization in Lebanon, such as the International Police Organization’s (INTERPOL) National Central Bureau for Lebanon, take all steps that they deem appropriate to enforce the orders of this court, particularly with respect to the return of the children to their habitual residence in Toronto, Ontario and the arrest of the Respondent; (2) the Toronto Police Service, the Royal Canadian Mounted Police, INTERPOL and the Government of Canada take all steps they deem appropriate to aid in the enforcement of this court’s orders; and (3) the bilateral commission established under the Agreement take whatever steps it deems appropriate to assist with the enforcement of this court’s orders, particularly the return of the children to their habitual residence in Toronto, Ontario.

Conclusions

[88] For the reasons given, I order that:

1. Ontario has jurisdiction, and should exercise such jurisdiction, to make an order for matters pertaining to the custody of, and access to, the children;
2. The Respondent shall, at her own cost, immediately return the children to Toronto, Ontario.
3. The Respondent shall, at her own cost, immediately take whatever steps are required to lift the travel ban imposed by a court in Lebanon, if any, that prevents the children from being returned to Toronto, Ontario,
4. The Applicant shall have sole custody of the children.
5. The children’s primary residence shall be with the Applicant in Toronto, Ontario.
6. The Respondent shall have liberal access to the children at the discretion of the Applicant.
7. Counsel for the Applicant shall hold all passports (including Canadian and Lebanese passports) issued in respect of the children until further order of this court.
8. A warrant be issued for the Respondent’s arrest, as she is in contempt of Justice Chiappetta’s order dated May 18, 2016, so that she may be brought before this court to explain why she should not be imprisoned.
9. The Respondent shall not have any status to participate in the within proceedings (including filing evidence or making submissions) without first appearing in person before this court and obtaining permission from the court to do so.
10. Service of any document by the Applicant on the Respondent in this proceeding is dispensed with until the Respondent complies with Justice Chiappetta’s order dated May 18, 2016, as well as the orders that I have made.

[89] I direct that the Registrar deliver a copy of these Reasons for Decision as well as the related Order that I have signed to:

Vulnerable Children’s Consular Unit, Consular Services Global Affairs Canada 125 Sussex Drive Ottawa, ON K1A 0G2

INTERPOL Ottawa, a.k.a. the Canadian National Central Bureau Royal Canadian Mounted Police RCMP National Headquarters Headquarters Building 73 Leikin Drive Ottawa ON K1A 0R2

Police Chief Mark Saunders Toronto Police Service 40 College Street. Toronto, Ontario M5G 2J3

[90] The Applicant seeks his costs of this proceeding from the Respondent. The Applicant shall deliver his costs submissions, maximum five pages, along with a Bill of Costs by June 14, 2017.

Mr. Justice M. D. Faieta

Released: May 31, 2017

COURT FILE NO.: FS-16-410258 DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PIERRE JOMAA Applicant – and – ROULA BECHARA Respondent

REASONS FOR DECISION Mr. Justice M. D. Faieta Released: May 31, 2017