Court File and Parties

COURT FILE NO.: FS-17-0084-00 DATE: 20170607 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MHD Khaled Daji, Applicant/Father AND: Nada AlNaser, Respondent/Mother

BEFORE: Ricchetti, J.

COUNSEL: M. Tweyman, for the Applicant/Father K. Maurina and S. Kirby, for the Respondent/Mother

HEARD: May 30, 2017

Endorsement

Contents

• THE MOTIONS
• BACKGROUND
  • The Parties, the marriage and the child
  • Life Before August 2016
  • The Father Leaves UAE with Julia
  • The Father Arrives in Ontario
  • The Proceedings in Ontario and UAE
    • Ontario
    • UAE
    • Ontario Proceedings Continue
  • The “Jurisdiction Issue” Motion Materials
  • The Jurisdictional Issue Motion
  • Subsequent Events
  • The Reasons of the Ontario Court of Justice
    • The Habitual Residence of Julia
    • Whether the court should accept jurisdiction even if Julia was not habitually resident in Ontario
    • Whether the court should accept jurisdiction to prevent serious harm to Julia?
    • Conclusion
• THE NOTICE OF APPEAL
• THE MOTIONS
• THE POSITIONS OF THE PARTIES
  • Stay
  • Security for Costs
• THE LAW
  • The Stay
  • The Standard to Apply
  • Serious Harm
  • Surreptitiously Recorded Audio Tapes
  • Security for Costs
• THE AL AIN FEDERAL COURT OF APPEAL DECISION
  • Admissibility Of New Evidence
  • THE Al Ain Federal Court of Appeal’s Decision
• THE REMAINING EVIDENCE ON THE MOTIONS
  • The Father’s Evidence
  • The Mother’s Evidence
• THE ANALYSIS ON THE STAY MOTION
  • Serious Issue(s) to be tried
  • The UAE Federal Court of Appeal creates a serious issue for the appeal
  • Justice Clay “ought to have relied on s. 43 of the CLRA to assume jurisdiction”
  • Justice Clay erred in not considering the evidence regarding the law of the UAE
  • Justice Clay erred on making credibility findings on conflicting evidence
  • Other grounds of appeal
  • Conclusion on Serious Issue to be tried
• Irreparable Harm
• Balance of Convenience
• Conclusion on Irreparable Harm and Balance of Convenience
• CONCLUSION ON THE STAY MOTION
• THE ANALYSIS ON THE SECURITY FOR COSTS MOTION
• CONCLUSION ON THE SECURITY FOR COSTS MOTION
• COSTS

The Motions

1There are two motions before this court.

2The first motion is by the Appellant, Father who seeks a stay of the Order of Justice Clay of February 28, 2017 (“Jurisdiction Order”) determining that Ontario has no jurisdiction in this matter and ordering the return of the child to the United Arab Emirates (“UAE”).

3The second motion is by the Respondent, Mother who seeks security for costs of the appeal and the previous cost order of Justice Clay on the Jurisdiction motion.

Background

The Parties, the marriage and the child

4Both parties were born in Syria. The parties were married on July 5, 2013 in the UAE. The parties lived in the UAE before and after the marriage. The parties lived in the UAE before and after the child was born.

5The Father was employed in the UAE. The Mother remained at home, taking care of the child after birth.

6The parties have one child, Julia Daji (d.o.b. August 6, 2014) (“Julia”). Julia was born in the UAE. Except for a brief period, of approximately two months in the middle of 2015, Julia resided in the UAE with her parents.

7The parties separated on August 15, 2016 when the Father, without the knowledge or consent of the Mother, left the UAE with Julia and came to Ontario.

Life Before August 2016

8The Father is a real estate broker. The Mother is an engineer. Both had lived in Dubai, in the U.A.E. for many years prior to 2016. The Mother for her entire life. The Father for at least ten years.

9The Father has family in the UAE. The Father had been employed in the UAE by way of a residency visa. The Mother was employed in UAE but since Julia was born, she has not been employed. The Mother also has a residency visa from the UAE.

10On July 7, 2015, the Father and Mother came to Canada and obtained landed immigrant status and permanent residency cards. However, the parties decided to return to UAE. They returned to the UAE in September 2015 and continued their life in Dubai, UAE.

11In approximately March 2016, the family moved to a different city, Ras Al Khaima, in the UAE, for the Father’s employment. The parties rented an apartment in Ras Al Khaima on a yearly lease from March 1, 2016 to February 28, 2017. The Father resumed employment in the new city. The Mother continued to remain at home for the full time care of Julia.

12There can be no dispute that the Mother was the primary care giver for Julia from her birth until August 2016. She remained at home throughout Julia’s life to care for her while the Father worked full time.

13Marital issues arose in the middle of 2016. On August 2, 2016 the Mother commenced proceedings in the Division of Family Guidance and Reconciliation Court in Ras Al Khaimin. It is shortly after this proceeding was commenced that the Father took the actions which have led to multiple proceedings.

14The Father had not raised any allegations of harm or violence towards Julia by the Mother before the Father left the UAE with Julia on August 15, 2016.

The Father Leaves UAE with Julia

15On August 15, 2016, the Mother left to run errands, leaving Julia in the Father’s care. When the Mother returned home, the Father and Julia were missing. The Father had taken Julia’s diaper bag but had not taken any clothing, toys, food, vitamins and other children’s typical belongings necessary when one goes on a lengthy trip with a child.

16The Mother called the Father. There was no answer. At approximately midnight, the Father texted the Mother that he was staying in Dubai at his mother’s home with Julia. He said they would be spending the night there. The Father also texted the Mother that Julia had eaten, and was sleeping.

17However, despite his statements to the Mother, the Father had gone to the International Airport with the intention and purpose of boarding a flight to Canada with Julia. The Father’s flight departed at approximately 12:37 a.m. August 16, 2016, approximately 40 minutes after he had told the Mother he was in Dubai with Julia.

18The next day, the Father did not call the Mother. The Mother became extremely worried. Julia had a medical appointment later that day. There continued to be no response from the Father. The Mother reported the matter to the police.

19The Mother did not know where Julia was.

20The Father, initially, refused to tell the Mother his whereabouts simply telling her that they were in “transit” in Europe.

21In addition to leaving the UAE with Julia without the Mother’s consent or knowledge, the Father ensured that the Mother did not have immediate access to her passport to follow the Father, even if the Mother had known the whereabouts of Julia.

22The Father continued to refuse to tell the Mother where he was or was going for some time.

23The Father had come to Ontario with Julia.

The Father Arrives in Ontario

24The Mother eventually discovered that the Father had left UAE and gone to Canada with Julia. The Mother immediately wanted Julia returned to the UAE.

25The Mother attempted to speak with Julia, but the Father refused for a period of time.

26As stated above, the Mother couldn’t travel to Canada because the Father had taken the Mother’s immigration documents, including her passport and left them with the Father’s family. The Mother recovered these from the Father’s family sometime later.

27During the balance of August 2016, the Mother contacted various organizations to assist her in locating and returning Julia to the UAE.

28The Father, in written communications with the Mother, attempted to suggest that he had travelled to Canada with the Mother’s consent. The Mother denied this. The Father’s version of events makes no sense whatsoever when all the surrounding circumstances are considered. This was the start of the Father’s attempt to create and manipulate the actual circumstances to support his abduction. This subsequently included videos of Julia and surreptitious audio recordings with the Mother.

29There continued to be discussions for some time between the Father (and through his family) and the Mother regarding the return of Julia. There was even a suggestion by the Father’s family that the Father might return to the UAE voluntarily.

The Proceedings in Ontario and UAE

Ontario

30The Father filed the application in the Ontario Court of Justice on October 13, 2016 (“Ontario Proceeding”). The Father sought custody of Julia and an order than she not be removed from Ontario.

31In the same month, the Father terminated the apartment lease in Ras Al Khaima, forcing the Mother to leave their apartment.

32In the Ontario proceeding, the Father suggested that it was a joint plan of the parties to immigrate to Canada. The Father’s motion materials does not explain the Father's failure to bring Julia’s clothes, toys and personal items and miss her medical appointment if the travel to Ontario was on consent. The Father’s motion materials also fails to explain why he would leave surreptitiously. The Father’s motion materials also fails to explain why he would lie to the Mother where he was and where he was going shortly after the abduction.

33The Mother was served in the UAE with the Ontario proceedings.

34The Mother retained counsel in Ontario on December 9, 2016. The Mother’s Answer was filed on January 3, 2017. The Mother challenged the Ontario Court of Justice’s jurisdiction submitting that the proper jurisdiction for determining Julia's custody issues was the UAE, being the habitual residence of Julia prior to the abduction.

UAE

35The Mother retained counsel in UAE to commence proceedings in the UAE on October 18, 2016. The Mother explained that she did not pursue legal action in the UAE earlier because the Father’s brother had suggested the Father would return with Julia in September or early October and because the Father had continued to pay the lease on the UAE apartment through to October 2016. When the Father commenced his proceeding in Ontario and stopped paying rent, the Mother realized that the Father had no intention of returning to UAE with Julia. As a result, the Mother commenced the UAE proceedings at that time.

36The Father retained counsel for the UAE proceedings. The Father’s position in the UAE proceeding was that he had travelled to Canada with the Mother’s consent.

37The matter was initially scheduled for November 9, 2016 before the UAE courts. The Father did not attend.

38The matter was rescheduled for November 15, 2016. The Father did not attend.

39The matter was rescheduled for November 21, 2016. The Father’s lawyer attended the UAE court on November 21, 2016 and sought an adjournment. The matter was rescheduled to December 6, 2016.

40On December 6, 2016, the Father’s lawyer again sought an adjournment. The matter was rescheduled to December 7, 2016.

41On December 7, 2016, the Father’s lawyer sought an adjournment. The matter was adjourned to December 28, 2016.

42On December 28, 2016 the Father’s lawyer sought another adjournment. The matter was adjourned to January 9, 2017.

43In total, the Father obtained six adjournments of the UAE proceeding.

44On January 9, 2017, the Al Ain Court in the UAE ordered the Father to return Julia to the Mother, granted the Mother custody and a divorce (“UAE January 9, 2017 Order”). The Father says that he had retained a lawyer in the UAE but the “court did not listen him and made decision expeditiously without adopting proper procedure”.

45The Father appealed the UAE January 9, 2017 Order.

Ontario Proceedings Continue

46The Mother sought an early motion for the return of Julia. The Father was represented by counsel in the Ontario proceeding. The Father would not agree.

47On January 6, 2017, the Mother brought an urgent Rule 14B motion seeking an order that the motion be heard before a case conference; for a declaration that the Ontario Court of Justice had no jurisdiction over Julia; and the immediate return of Julia to the UAE. The Father opposed the motion arguing that there was no urgency in dealing with these issues.

48The Father’s position in the Ontario Court of Justice alleges that:

a) The plan of the family was to immigrate to Canada. The Mother had agreed to immigrate to Canada. He travelled to Canada with Julia with the Mother’s consent and the Mother was to follow later;

b) The Mother physically abused Julia. The Father produced videos where he asked Julia where her Mother had hit her;

c) UAE is not a safe or proper jurisdiction in that UAE laws permit severe child beatings. He submits that custody in the UAE will not be determined based on Julia’s best interests;

d) Julia cannot return to the UAE as she does not have a visa (visa’s expire after you are away from UAE for more than 6 months). The Father suggested there was uncertainty in Julia’s residency in UAE and, therefore, the UAE could not and should not be Julia’s habitual residence; and

e) The Father currently resides in Ontario and Julia’s needs are being met here.

49The Mother position in the Ontario Court of Justice proceeding alleges that:

a) The Mother denied she consented to the Father’s travel to Canada with Julia. The Mother denied there was a plan to immigrate to Canada. The Mother points to the secretive, abrupt departure by the Father with Julia, the subsequent obfuscation by the Father and evidence of their residence before and after the Father’s departure;

b) The Mother denies she abused Julia. The Mother points to videos which show that the Father coached and suggested to Julia the physical abuse by the Mother;

c) The Mother states UAE is a jurisdiction which considers the best interests of the children first. She is supported by a UAE lawyer confirming this;

d) Julia states that Julia can return to the UAE given the Mother’s residence visa status. This is supported by a UAE lawyer confirming this; and

e) The Mother states it is in Julia’s best interests that she return to UAE, her habitual residence and where she was raised by the Mother as the primary care giver until abducted by the Father.

50On January 23, 2017 Justice Clay stated “It is necessary to have the jurisdictional issue determined prior to any other case management in this matter”. Justice Clay scheduled February 28, 2017 to hear the “jurisdictional issue”. Neither party objected to the “jurisdictional issue” being decided on affidavit evidence.

51Counsel for both parties agreed to this hearing date. Justice Clay confirmed this in an endorsement dated January 31, 2017.

52On February 9, 2017 Justice Clay made an order that Julia not be removed from Ontario.

53On February 10, 2017, the Father filed a motion to adjourn the “jurisdictional issue” motion. The Father stated he had discharged his lawyer and was, because of this, seeking an adjournment to retain other counsel. On February 14, 2017, Justice Clay dismissed the Father’s application for an adjournment and confirmed the February 28, 2017 hearing date.

54The Mother brought a motion that the Father deposit his passport and Julia’s passport with the court prior to the February 28, 2017 motion. Justice Clay ordered that the Father attend court on February 28, 2017 with his and Julia’s passport. For the first time, the Father alleged that Julia’s passport had been missing since November 2016 and, therefore, could not be brought to court on February 28, 2017.

The “Jurisdiction Issue” Motion Materials

55The parties filed extensive affidavit evidence. Neither party sought cross-examination of the deponents. Neither party sought to call viva voce evidence at the return of the motion on February 28, 2017. Neither party requested a trial with viva voce evidence. Both parties filed factums. Both parties were represented by counsel on the motion. Both parties appeared content to have Justice Clay determine the “jurisdiction issue” on the affidavit evidence.

56The Father’s affidavits deal with the following primary points:

a) The Father denied he had abducted Julia. His position was that he and his wife were “to come to Ontario”. The Father states that he and the Mother came to Canada on July 7, 2015 and obtained landed immigrant status. The Father states that they returned to the UAE “temporarily”. The Father relied on surreptitiously recorded telephone calls with the Mother as to her knowledge and agreement that they would be immigrating to Ontario;

b) The Father submitted that Julia’s habitual residency was Ontario;

c) The Father denied that he or the Mother were citizens or permanent residents of UAE. The Father stated he could not return to the UAE without a new visa because he left in August 2016 and has been outside of the UAE for more than six months;

d) Julia has now been in Ontario more than six months and that this is now her habitual residence. Julia no longer has a visa for the UAE; and

e) Julia’s best interests were to remain in Ontario rather than the UAE.

57The Father’s position on the jurisdiction motion was that:

a) The Mother had consented to the move to immigrate to Canada (see paragraphs 6 -13 of the Father’s factum);

b) Julia’s habitual residence was Ontario (see paragraphs 14 -18 of the Father’s factum);

c) The Ontario proceeding was filed first (see paragraph 19-21 of the Father’s factum);

d) Child abuse is allowed in UAE (see paragraphs 22 -27 of the Father’s factum);

e) Julia’s best interests were to remain in Ontario (see paragraphs 28 – 42 of the Father’s factum).

58The Father identified the following issues for the court on the jurisdictional motion:

a) Has the Ontario court jurisdiction to order custody?

b) Is Julia habitually resident in Ontario?

c) Did the Mother consent to Julia residing in Ontario?

d) Will Julia suffer serious harm if returned to the UAE?

e) Is it in Julia’s best interests to remain in Ontario?

59The Father relied on s. 22 of the Children’s Law Reform Act (“CLRA”) for the Ontario Court of Justice’s jurisdiction in this case (see pages 12-15 of the Father’s factum).

60In the alternative, the Father relied on s. 23 of the CLRA, submitting that the Ontario Court of Justice should take jurisdiction in the circumstances of this case (see pages 15 – 18 of the Father’s factum)

61The Father submitted that s. 41 of the CLRA supported his position because the UAE is not a signatory to the Hague Convention (see page 18 of the Father’s factum).

62The Father also submitted that s. 42 and 43 of the CLRA allow the Ontario Court of Justice to take jurisdiction in these circumstances (see pages 18 -19 of the Father’s Factum).

The Jurisdictional Issue Motion

63The “jurisdictional motion” was heard on February 28, 2017 by Justice Clay. At the conclusion of the hearing, Justice Clay advised the parties that the proper jurisdiction for Julia’s custody issues was UAE and that Julia was to be returned to UAE. Justice Clay released his reasons on March 2, 2017.

64Justice Clay ordered the following:

ORDER

40This order replaces the order of the Honourable Justice Philip J. Clay dated February 28, 2017.

(1) The child Julia Daji born August 6, 2014 shall be immediately returned to the Respondent who shall return her to her place of habitual residence in the United Arab Emirates.

(2) This Court has no jurisdiction to determine the custody and/or access issues pertaining to the said child.

(3) This Court recognizes the order of Judge Hamad Musbah Al Kutbbi of the 2nd Circuit Court in the United Arab Emirates, dated January 9, 2017.

(4) This Court authorizes the Peel Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, Canada Border Services and/or such other law enforcement agencies as may have jurisdiction to enforce paragraph 1 of this order and the said order of the United Arab Emirates Court of January 9, 2017 pursuant to s.36 of the Children’s Law Reform Act.

(5) The Applicant or anyone on his behalf is prohibited from removing the said child from the Regional Municipality of Peel in the Province of Ontario.

(6) (a) The Applicant shall sign all documents as may be required to permit the said child to travel from Toronto to the United Arab Emirates including but not limited to any documents that may be required for the child to obtain a passport and entry visa.

(b) The Applicant shall deliver to the Respondent’s counsel all legal documents concerning the said child in his possession forthwith. If the Applicant is no longer in possession of any of the child’s documents that he brought to Canada he shall sign all documents and pay all fees that may be required to obtain replacement documents on an expedited basis.

(7) This matter is adjourned to March 13, 2017 at 2:00 p.m. in courtroom 208 to address the following issues;

a) The documents needed for the said child to be returned to the United Arab Emirates

b) The cost of travel of the Respondent to Toronto and the Respondent and the said child from Toronto to the United Arab Emirates.

c) The costs of this proceeding provided that;

i) the Respondent shall serve her costs submissions limited to three pages double spaced plus a bill of costs by March 7 and shall file them by March 9, 2017.

ii) the Applicant shall serve response submissions limited to three pages double spaced by March 10 and may file them in courtroom 208 on March 13, 2017 at 12:30 p.m.

Subsequent Events

65Despite the clear order of Justice Clay on March 2, 2017 to the Father to sign any documents to permit the Mother to obtain a new passport for Julia, by March 13, 2017 the Father failed to do so. This delayed Julia’s return to the UAE. The Father said that he authorized someone in Syria to obtain a new passport for Julia. On March 16, 2017, Justice Clay released an endorsement dealing with the Father’s delay and failure in complying with his order to sign the Mother’s documentation for Julia’s passport. Justice Clay was critical of the Father's actions.

66On March 15, 2017, the Father filed a Notice of Appeal. A date was set for May 8, 2017 to set a hearing date. On May 8, 2017, the Father did not attend (personally or by counsel) and had failed to perfect the appeal. The Mother’s counsel was present on May 8, 2017. As a result, Justice Seppi dismissed the Father’s appeal without prejudice to him re-instating the appeal within 30 days. The Father brought a motion on May 13, 2017 and the court reinstated the appeal.

67These motions were scheduled to be heard by this court on an expedited basis.

The Reasons of the Ontario Court of Justice

The Habitual Residence of Julia

68Justice Clay concluded:

25With certain exceptions as set out in s. 22 (1) (b) and s. 23 this court can only assume jurisdiction with respect to a custody application if the child is habitually resident in Ontario. The onus is on the father as applicant to establish this. He argued that the child is a permanent resident of Canada and lived in Ontario from July 15 to September 12, 2015. He stated that the parties only returned to the U.A.E. to put their financial affairs in order and that the common intention of both parents was to return to Ontario to reside. He asserted that once the child moved to Ontario and obtained permanent residency status here that she became habitually resident in Ontario and that she did not abandon lose that habitual residence status during what the father asserted was a transitional period in the U.A.E. He also argued that the common intention to return to Ontario meant that his travel with the child on August 16 was effectively consented to by the mother notwithstanding all of the evidence of his false statements and the rushed midnight flight.

26The mother said that the child was habitually resident in the U.A.E. because at the time the father left with the child both parties and the child were residing in the U.A.E. The mother stated that in 2015 the parties did decide to immigrate to Canada. She stated that after less than two months they decided to return to the U.A.E. on a permanent basis. She argued that all of the objective evidence supported her position. The father was still employed in the U.A.E., the father rented a home on a one year lease and there were no joint plan for the parties to leave the U.A.E. She noted that when the father left he left behind a fully furnished apartment and he did not even take the child’s clothes or other belongings. There was no evidence other than the father’s statements that the mother ever planned to move back to Canada with the child.

27I find that the father’s position is untenable. There were no joint steps taken towards a move to Canada. All of the evidence was to the effect that the family had settled into a new home in the U.A.E. The mother had lived in the U.A.E. for all of her life and all of her family lived there. The father had lived there at least ten years and his mother and brother lived there. If they were simply settling their affairs before returning to Canada the father would not have signed a one year lease on a home (even if it could be broken on 60 days’ notice). There was nothing that occurred before August 2, 2016 that suggested that either of them planned to leave the U.A.E. much less that they had a joint intention to do so. On August 2 the father was served with a notice from a family court. The mother stated that on August 15 she left the child with the father for the first time ever. That night he left with the child. It is unnecessary to repeat the circumstances of his departure. Suffice it to say that they have all of the hallmarks of a child abduction.

28I find that the habitual residence of both parties and the child was the U.A.E. on August 16, 2016 when the father abducted the child and brought her to Ontario.

Whether the court should accept jurisdiction even if Julia was not habitually resident in Ontario

69Justice Clay concluded:

29Mr. Zafar placed some emphasis on s. 22(1) (b) of the CLRA. The child was in Ontario when the application was commenced. There was evidence concerning the child in Ontario but it is all evidence that arose after the child was brought here. There was no evidence prior to that other than the fact that when she was just a year old Julia lived with her parents in Ontario for 2 months. All of the evidence about this child, prior to the time of her arrival in Ontario in August 2016, was in the U.A.E. where she had lived with both parents for almost all of her life.

30I find that the s. 22 (1)(b) argument completely founders when 22 (1) b) iii) is considered. The father left the U.A.E. with the child at the first opportunity after he received notice that the mother had gone to a court in that jurisdiction. The actual application for custody in the U.A.E. was issued on the same day that the application before this court was issued. The U.A.E. divorce and custody case were pending at the time that this application was being organized for a hearing. Prior to this motion being heard the court in the jurisdiction where I have found the child to be habitually resident issued a final divorce and custody order. The father chose to participate in those proceedings but he failed to respect the court’s decision. He has not complied with the January 9, 2017 order of the U.A.E court.

31The balance of the s. 22 considerations are irrelevant as all sub-sections must be met before this court can accept jurisdiction. I note however that the child had no real and substantial connection to Ontario prior to arriving here on August 16, 2016 and the balance of convenience in this matter does not favour an Ontario court accepting jurisdiction.

Whether the court should accept jurisdiction to prevent serious harm to Julia?

70Justice Clay concluded:

32The father stated that the mother had a terrible anger management problem and that this had resulted in her striking the child on repeated occasions. He asserted that in the U.A.E. it was not illegal to hit children in the home. He alleged that there was no protection for children in the U.A.E. as there is in Ontario. He said that if the child is returned to the U.A.E. that the mother will beat her and that there is no law or governmental authority that will be able to do anything. He said that the child will suffer serious physical harm if she is returned to the care of the mother.

33The mother denied any corporal punishment. There was no evidence of any physical abuse of the child while she was living in the U.A.E. I accept the mother’s evidence that she was the child’s primary caregiver. The evidence was that the mother cared for the infant child while the father worked outside the home. The mother said that the only time the child was ever alone with the child was the day that the father abducted her and brought her to Ontario. The parties lived in the same home until the father left. There was no evidence that the father had ever complained to anyone that the mother was beating the child. The mother stated that there is a child protection system in the U.A.E. called the Centre for Social Support which had a similar mandate to the children’s aid societies in Ontario. She said that the family had never been involved with them. With respect to U.A.E. law concerning the rights of children both parties had filed documents. The father had filed a copy of legislation as annotated by a private lawyer in the U.A.E. I do not consider that to be evidence as it is effectively the opinion of a practitioner, who is not qualified as an expert and has not published in recognized legal journals (or at least there was no evidence that he had). It was one lawyer’s view as to what the law means and such opinion evidence is not admissible. For different reasons I declined to review the statements of the “Wadeema” regarding children’s rights in the U.A.E. as submitted by the mother in response to the father’s arguments. I simply had no admissible evidence that supported the father’s position that if the child was being beaten nothing would be done in the U.A.E.

34The only evidence that the father tenders to support his argument of the probability of serious harm is the evidence of the surreptitiously taped phone calls and the coached videos of the child. There is strong public policy against admitting taped phone calls in family law cases. I find that there is no necessity to accept such evidence in this case. Even if I am wrong and the transcripts should be considered as evidence I do not find the contents to be helpful to the father’s position. The father has taped the calls for the sole purpose of trying to induce the mother into making an admission that she beat or hurt the child. The mother is emotionally desperate at this point in time. Her child was taken to Canada. She has no contact with her. Her sole focus is on seeing her daughter and getting her back. Even if she did promise not to beat the child anymore it was only after repeated insistence by the father that she make such a promise. If she had never hit her child before it would not be difficult for her to commit to never doing it again especially if making such a statement held out the promise of contact with her child.

35The father’s action in creating and then submitting these phone call transcripts and videos is very telling. He claims not to have abducted the child but he knows that the circumstances of her travel points to abduction. Within a few days after arriving in Ontario, and before telling the mother where her daughter is living, he started to work on building a defense to his actions. He purposely tried to manipulate the mother to create evidence that he thought he could use to argue that there would be a probability of serious harm to the child if she was returned. He knew that he had no such evidence before he made those taped calls. The transcripts show that he is determined to obtain an admission from the mother. The videos, which were described in the parties’ affidavits, show clear evidence of manipulation of this young child. This father removed his 2 year old daughter from her mother’s primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child. I find that the father’s actions in manipulating both the mother and the child to be unconscionable and deserving of censure from this court.

Conclusion

71Justice Clay concluded:

36I find that the father has not discharged the onus upon him to prove that this court either has jurisdiction to address a custody application or should assume jurisdiction to do so. I find that the child was habitually resident in the U.A.E. at the time of her abduction and arrival in Ontario on August 16, 2016. I further find that there are no exceptions that apply here and the U.A.E. is the court that has the jurisdiction over this child.

37I recognize the final order of the U.A.E. Judicial Department 2nd Circuit of Personal Status dated January 9, 2017 a translated copy of which was attached to the mother’s affidavit of February 8, 2017 as Exhibit “A”. That order provided that the mother shall have custody of the child and the father shall “hand over” his daughter to the mother. I am prepared to make the orders sought by the mother in her notice of motion.

38I am very troubled by the suspicious circumstances surrounding the alleged loss of the passports of the father and more importantly the child. I was advised by Mr. Stangarone that the father had the child’s birth certificate. The father denied this. The father said that he left the U.A.E. with the child’s passport and her permanent resident card only. The father provided no explanation for why he did not claim the child’s passport was missing until November 29, 2016. Given that it was inevitable that litigation would result after the child was abducted it seems highly unlikely that the father would lose important legal documents. I am very concerned that the father may still have both passports and /or the birth certificate. I granted a temporary order that neither party is to take the child out of the province of Ontario. That order remains in place until this order is issued and entered. I know that Mr. Stangarone’s firm has taken all the steps they can to ensure that the temporary order can be enforced by the relevant police forces and border services. They will need to replace that temporary order with this final order that declines jurisdiction and permits the mother to remove the child in order to return her to her home in the U.A.E.

72Justice Clay subsequently awarded the Mother costs in the amount of $36,736.25 plus the costs of $3,164 for the Mother’s travel costs to Toronto from Dubai.

The Notice of Appeal

73The Notice of Appeal alleges that Justice Clay erred in:

a) Ordering Julia to be returned to a country where Sharia Law applies;

b) Failing to apply the factors in s. 41(b),(c) and (d) of the CLRA and application of the CLRA generally when deciding the risk of harm to Julia;

c) Failing to admit the audio recordings of the Mother and give them appropriate weight;

d) Making an order where there was conflicting evidence;

e) Failing to find that the Mother acquiesced to the move to Canada;

f) Failed to consider UAE law, which have aspects contrary to public policy in Canada in regards to children’s abuse;

g) Erred in relying on the “chasing order”;

h) Erred in his credibility findings against the Father; and

i) Erred in making a custody order after finding that the Ontario Court of Justice had no jurisdiction.

The Motions

74On April 28, 2017, the Father brought this motion seeking a stay of the Jurisdiction Order.

75On May 5, 2017, the Mother brought this motion seeking that the Father post security for costs for the amount of costs ordered by Justice Clay payable by the Father and $20,000 for costs of the appeal.

The Positions of the Parties

Stay

76Essentially, the Father’s position is that the appeal will be heard on July 24, 2017 and as such, a stay will be of limited duration. The Father submits that failing to grant the stay will make the appeal moot. The Father submits he meets the test for a stay pending appeal in the circumstances of this case.

77The Mother submits that the Appeal has no merit – it is frivolous and vexatious. The Mother submits that the Father is seeking to re-litigate the same issues before Justice Clay. Further, the Mother submits that there is no irreparable harm shown by the Father and the balance of convenience favours not granting a stay pending appeal given that both parties are actively engaged in legal proceedings in the UAE.

Security for Costs

78The Mother submits that the Father’s appeal has no merit and he has no assets in Ontario from which to pay any cost awards.

79The Father submits that no security for costs should be ordered.

The Law

The Stay

80The test for a stay order pending an appeal is a follows:

a) the appellant must show there is a serious issue to be tried;

b) irreparable harm will result if the stay is not granted; and

c) the balance of convenience favour a stay pending the appeal.

See Fontaine v. Canada (Attorney General), 2016 ONCA 813 at para 9 and Abuzour v. Heydary, 2015 Carswell Ont 5208 (Ont. C.A.).

81The court looks to weighs all three factors to determine whether the interests of justice require a stay pending the appeal. No single factor is determinative. See Essa v. Mekawi, 2015 ONCA 244 at para 3.

82The Father has the onus for demonstrating why the court should stay the Jurisdiction Order. See Lefebvre v. Lefebvre, 2002 CarswellOnt 4325 (C.A.) at para 6.

83The principles of law applicable to a stay pending appeal are well settled and not in dispute. Each case turns on its facts and the application of the above test. The fact that other cases have granted or turned down a stay have little relevance given that none of the cases brought to the court’s attention are similar to the case at bar.

84There can be no dispute that motions regarding child abductions and jurisdiction are to be dealt with fairly and justly but that such disputes, because of their very nature, must be dealt with expeditiously. Osborne, J.A. in Brooks v. Brooks (1998), 111 O.A.C. 177 held that such cases should “avoid forum shopping and the inappropriate removal of jurisdiction" from one state or jurisdiction to another. He went on to hold that to "secure the best information relevant to the children's best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, ..."

The Standard to Apply

85The applicable standard of review of factual findings of a trial judge is one of strong appellate deference. Such factual findings are not to be reversed, absent palpable and overriding error. This standard applies to all factual findings whether based on credibility assessments, weight of competing evidence or drawing of inferences from primary facts. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

86“A palpable error is one that is obvious or plain to see and an overriding error is one that is sufficiently significant to vitiate the challenged finding of fact and goes to the root of the challenged finding of fact. In reviewing the inferences made by the trial judge, the court will consider whether they are supported by the findings of fact or whether they are clearly wrong. The appellant court will not re-weigh the evidence:” See Children’s Aid Society of Toronto v. DJ, 2013 ONSC 2776 at para. 27.

87The standard of review in custody cases is that an appellate court should not disturb the decision in the absence of a material error, a serious misapprehension of the evidence or an error of law. See Hickey v. Hickey, [1999] 2 S.C.R. 518. As noted by Justice L’Heureux-Dubé in that case (at para. 10):

“.... [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.”

88In Katsigiannis v. Kottick-Katsigiannis, 2001 55 OR (3d) 456 (ON CA) the Court of Appeal described the standard of review in cases such as this:

30I begin with the standard of appellate review. While the applications judge heard no oral evidence, and therefore this court is in just as good a position to assess the evidence as she was, this appeal is nonetheless not a rehearing or a de novo review of the evidence as if no decision had been made by the applications judge. See Carter v. Brooks (1990), 2 O.R. (3d) 321 at pp. 329-30, 30 R.F.L. (3d) 53 at p. 64 (C.A.).

31The applications judge's decision is entitled to deference and should not be set aside unless she applied the wrong legal principles or made unreasonable findings of fact. This standard of review applies even though this is an appeal from a decision made on an entirely written record. See Gottardo Properties (Dome) Inc. v. Toronto (City) (1998), 162 D.L.R. (4th) 574, 46 M.P.L.R. (2d) 309 (Ont. C.A.).

Serious Harm

89The UAE is not a signatory to the Hague Convention. The Supreme Court in Thomson v. Thomson, [1994] S.C.J. 6 at para. 93 made it clear that domestic legislation and the Hague Convention operate independently of one another.

90Prowse, J.A. for the majority in Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61, at paragraph 38, stated the wrongful removal of children is, in most case, contrary to a child’s best interests and the presumption is that the jurisdiction of the child’s habitual residence is best suited to determine the child’s best interests:

I note that, while under Part 2 of the FRA the best interests of the child are stated to be "paramount", the best interests of the child under Part 3 must be read in the context of the other three purposes that Part 3 is designed to serve. Those purposes reflect the underlying assumption that a wrongful removal of children from one jurisdiction to another will, in most cases, be contrary to the children's best interests. This is so because such a move almost invariably interferes with meaningful contact between the children and one of their lawful parents or guardians, and with their other family, friends, school, and home in a manner which is necessarily disruptive of their sense of stability and security. There is also an underlying assumption, reflected in the wording of Part 3, that the state of the child's habitual residence is the jurisdiction best suited to a determination of the child's best interests. In this respect, the provisions of Part 3 reflect similar considerations under the Hague Convention.

(emphasis added)

91In Heath-Breakspear v. Breakspear, [2016] N.J. No. 400, the Newfoundland Supreme Court stated that, just because the courts in UAE may apply Sharia Law, that alone is not sufficient to ground a finding of serious harm.

92In the absence of evidence to the contrary that the courts in the jurisdiction of the habitual residence will not apply the best interests of the child, this court will that they do so. The onus to establish otherwise is clearly on the Father. In Ireland v. Ireland, 2011 ONCA 623 the court set out the following instructive comments on serious harm:

47Using this approach, the level of harm required under s. 43 of the Children’s Law Reform Act in an international custody dispute is not different in substance from the test under Article 13(b) of the Convention. Under Article 13(b), the harm must be of a degree that would amount to an intolerable situation: see Thomson, at para. 80; see also Jabbaz v. Mouammar (2003), 226 D.L.R. (4th) 494 (Ont. C.A.); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.).

48In assessing whether a situation is intolerable, it must be presumed that the court with jurisdiction to determine what is in the best interests of the children is equipped to make, and will make, suitable arrangements for the children's welfare: see Finizio v. Scoppio-Finizio (2000), 46 O.R. (3d) 226 (C.A.) at para. 34, citing with approval Medhurst v. Markle (1995), 17 R.F.L. (4th) 428 at 432 (Ont. Gen. Div.). MacPherson J.A. writing for this court in Finizio quoted from the decision of the English Court of Appeal in C. v. C. (Abduction: Rights of Custody), [1987] 1 W.L.R. 654 (C.A.) at p. 664, in which Lord Donaldson of Lymington M.R. said:

It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e., the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country -- Australia in this case -- can resume their normal role in relation to the child.

49The threshold for the application of s. 43 of the Children’s Law Reform Act is a high hurdle. The mother’s record in this appeal contains no evidence that even attempts to address the presumption that the Georgia court is well able to assess any and all information regarding the best interests of the children and protect them from harm. I am satisfied that without such evidence, the mother’s appeal is doomed to fail.

(emphasis added)

Surreptitiously Recorded Audio Tapes

93There is a strong public policy against admitting taped phone calls as evidence in family cases. See Sordi v. Sordi, 2011 ONCA 665:

10 Specifically, the appellant submits that the trial judge erred in refusing to admit audio tapes of recordings of conversations between himself, the respondent, and the children - tapes that he recorded without the respondent's knowledge. He also contends that the trial judge erred in refusing to admit a report by a social worker he hired to critique the court-ordered custody and access report. Finally, the appellant contends that the trial judge erred in refusing to admit the reports and testimony of his psychologist who, on the basis of his counselling of the appellant and visits with the appellant and the boys, was in a position to assist the court as to the appellant's fitness as a father.

11 In my view, there was nothing unfair or improper about the conduct of the trial. Specifically, there is no reason to question the exercise of the trial judge's discretion not to admit the proposed evidence about which the appellant complains.

12 With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.

Security for Costs

94Rule 38(26) of the Family Law Rules applies:

On a motion by the respondent for security for costs, the court may make an order for security for costs that is just, if it is satisfied that,

(a) there is good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of the court process and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under subrule 24 (13); or

(c) for other good reason, security for costs should be ordered.

95The court has jurisdiction to award security for the costs of the appeal and costs awarded below. See Aegis Biomedical Technologies Ltd. v. Jackowski (1996), 28 O.R. (3d) 558 (C.A.).

96The first ground requires the court to determine whether “there is good reason to believe that the appeal is a waste of time”. A full enquiry into the merits is not required. This court need only determine whether there is “good reason to believe” that the appeal is a "waste of time" or, to use other language, has no merit.

97In Froehlich-Fivey v. Fivey, 2016 ONCA 833, the Court of Appeal made the following comment relevant to the case at bar:

12In my view, there is good reason to believe the appeal has no merit. It does not raise any arguable error in law. It only challenges the trial judge’s findings of fact and credibility that are sound on their face. Therefore, to succeed, the appellant must ultimately demonstrate that the trial judge made a number of palpable and overriding errors in his findings, such as failing to address a material issue, failing to take into account relevant evidence, or taking into account irrelevant evidence.

The Al Ain Federal Court of Appeal Decision

Admissibility Of New Evidence

98The Father includes in his motion materials that the UAE January 9, 2017 Order was set aside on March 22, 2017 by the Al Ain Federal Appeal Court.

99The Mother’s counsel opposes this “new evidence”.

100I am of the view that this new evidence was not available at the time of the hearing before Justice Clay, it is significant in that Justice Clay specifically “recognizes” the UAE January 9, 2017 Order in his decision and the Al Ain Federal Appeal Court’s decision are alleged to be relevant to the issues to be decided on this appeal.

101The March 22, 2017 Order of the Al Ain Federal Court of Appeal is relevant in that it shows:

a) The January 9, 2017 UAE Order has been superseded until further order of the Al Ain Federal Court of Appeal. Whether would be a final order or further appeals are possible is not known; and

b) The March 22, 2017 Al Ain Federal Court of Appeal Orders shows the Father is actively participating in the UAE proceedings and the UAE courts are prepared and equipped to make decisions regarding Julia’s custody issues.

The Al Ain Federal Court of Appeal’s Decision

102It is important to note that the Father’s appeal in the UAE requested “and for a precautionary evidence, he requested the referral of the appeal for investigation in order to prove that both the Appellant and Apellee have agreed to immigrate to Canada, but later the Appellee refrained from joining the Appellant...”

103As stated above, the Father now does not dispute that he “surreptitiously removed Julia” to find “sympathy and protection from the courts of a Western, democratic society...”

104The Father and Mother agreed to the appointment of court arbitrators. The Al Ain Federal Court of Appeal stated the January 9, 2017 order was “a violation of the Article 119 of the Person Status Law that stipulates The Arbitrators have to investigate the reasons for the dispute and exert efforts to bring upon a reconciliation of the husband and wife.” ... “Therefore the appealed judgment shall be set aside, and the two arbitrators shall investigate the dispute between the two parties....”

105It is clear from the judgment of the Al Ain Federal Court of Appeal that the Father attorned to the UAE jurisdiction with respect to Julia's custody issues and is actively participating in the UAE court proceedings.

106The court proceedings in the UAE continue. Whether and what decision the UAE court’s will finally determine regarding Julia's custody issues has not yet been determined. It is unclear when a decision will be rendered by the Federal Court of Appeal and when any order regarding the custody of Julia will become final.

107The Mother filed a letter from a UAE lawyer which states that the UAE Order of January 9, 2017 remains in effect as the March 22, 2017 is preliminary and the January 9, 2017 order remains in effect until a final order sets it aside. Whether this is the case or not is not relevant to the issue of which country has jurisdiction regarding Julia’s custody issues.

The Remaining Evidence on the Motions

The Father’s Evidence

108The Father now does not dispute that he “surreptitiously removed Julia” from the UAE (See para 1 of the Father’s factum). Surprisingly, this is contrary to the position the Father took in the jurisdiction motion (and the position taken at the UAE proceeding). Justice Clay described the Father’s position before him as follows:

He stated that the parties only returned to the U.A.E. to put their financial affairs in order and that the common intention of both parents was to return to Ontario to reside. He asserted that once the child moved to Ontario and obtained permanent residency status here that she became habitually resident in Ontario and that she did not abandon lose that habitual residence status during what the father asserted was a transitional period in the U.A.E. He also argued that the common intention to return to Ontario meant that his travel with the child on August 16 was effectively consented to by the mother notwithstanding all of the evidence of his false statements and the rushed midnight flight.

109This position also inconsistent the Father’s allegation that Justice Clay erred in failing to find the Mother had acquiesced to the Father and Julia moving to Canada by (See para 6 in the Notice of Appeal).

110This puts an end to the issue of Julia’s habitual place of residence. It was UAE prior to the abduction. See s. 22(3) of the CLRA.

111One of the primary grounds of appeal is that Justice Clay erred in failing to find that Julia was physically aabused by her Mother (See paras 2-5 of the Father’s factum). A considerable portion of the Father’s evidence on these motions is to repeat his statements in the motion before Justice Clay regarding the alleged abuse of Julia by the Mother and to re-argue that the laws in UAE will not protect Julia and, therefore, is not in her best interests to be returned to the UAE.

The Mother’s Evidence

112The Mother states that she has not seen Julia since August 15, 2016 except intermittently through Skype. Much of the Mother’s evidence on these motions is a repeat of the evidence before Justice Clay.

113In addition, the Mother points to evidence in early March 2017 that the Father had “agreed to hand over the child” and drop the “idea to file appeal”. I am not persuaded that this evidence is relevant to the motions before this court. The Father was entitled to change his mind and appeal the Jurisdiction Order.

The Analysis on the Stay Motion

Serious Issue(s) to be tried

114The Father’s Notice of Appeal does not challenge the “surreptitious” abduction of Julia and the fact that Julia’s habitual residence on August 15, 2016 was the UAE.

115As a result, the only remaining issue in the appeal is that the court should have nevertheless exercised its jurisdiction under s. 23 or 43 of the CLRA because Julia would suffer “serious harm” if returned to the Mother. At the heart of this issue is to overturn the findings of fact made by Justice Clay.

116It is not the function of this court to conduct a detailed review of the merits of the appeal, but rather conduct a preliminary assessment to determine if there is a serious question that the decision being appealed is wrong. See Abuzour v. Heydary, 2015 CarswellOnt 5208 (C.A.) at para 28.

117On the motion, the Father argued the following grounds of appeal:

a) The Al Ain Federal Court of Appeal creates a serious issue for the appeal;

b) Justice Clay “ought to have relied on s. 43 of the CLRA to assume jurisdiction”;

c) Justice Clay erred in not considering the evidence of the law of the UAE; and

d) Justice Clay erred on making credibility findings on conflicting evidence.

The UAE Federal Court of Appeal creates a serious issue for the appeal

118In my view, the UAE Federal Court of Appeal’s decision does not assist the Father. It demonstrates that the Father is participating in the UAE custody proceeding. The Father states he is confident as to the merits of his position in the UAE proceeding. In many ways, the Father’s active participation in the UAE proceeding demonstrates that the UAE is equipped to deal with custody issues for Julia.

119The primary goal of the proceeding before Justice Clay was to determine whether Ontario was the appropriate jurisdiction to deal with Julia’s custody issues. Paragraphs 1 and 2 of the Order of Justice Clay dealt with Julia’s return to her “habitual place of residence” and that Ontario had no jurisdiction to deal with Julia's custody issues. Justice Clay’s decision to recognize the UAE January 9, 2017 Order was simply to recognize that decision by the UAE judicial system, as it existed at that time regarding Julia’s return.

120The essence of Justice Clay’s decision on the “jurisdiction issue” was as follows:

I find that the father has not discharged the onus upon him to prove that this court either has jurisdiction to address a custody application or should assume jurisdiction to do so. I find that the child was habitually resident in the U.A.E. at the time of her abduction and arrival in Ontario on August 16, 2016. I further find that there are no exceptions that apply here and the U.A.E. is the court that has the jurisdiction over this child.

121The fact that there are appeals and further proceedings in the UAE is of no moment to the issue as to whether Ontario has jurisdiction to deal with Julia’s custody issues.

122This issue does not raise a serious issue on the appeal.

Justice Clay “ought to have relied on s. 43 of the CLRA to assume jurisdiction”

123The Father describes this as the “primary ground of appeal” in “that Justice Clay erred in not finding Julia would suffer “serious harm” if returned to the Mother and thereby, failing to apply s. 43 of the CLRA. This was described by the Father as the “crux of the very issues to be decided”.

124The Father points to his evidence about the Mother’s beatings of Julia which had been rejected by Justice Clay.

125The evidence before Justice Clay shows that he accepted the evidence of the Mother and rejected the evidence of the Father as it relates to whether the Mother physically abused Julia. There was an evidentiary basis for Justice Clay’s finding of fact. Pointing to other conflicting evidence which the presiding judge rejected, does not establish a palpable and overriding error.

126Justice Clay did fully consider the conflict in the evidence. Justice Clay stated: “He [the Father] alleged that the mother had a serious anger management problem and that she physically disciplined the infant child. The father did not make any allegations against the mother while the parties lived together in the U.A.E. The allegations were only made after he brought the child to Canada.”

127Contrary to the Father’s submission, Justice Clay did explain why he accepted the Mother’s evidence and rejected the Father’s evidence. See paragraphs 32-35 of the Reasons.

128The Father goes on to point to other evidence which, he says, Justice Clay did not consider.

Supporting affidavits of friends and family

129The Father submits that the failure of Justice Clay to explain why he rejected these other affidavits constitutes a palpable and overriding error.

130These affidavits repeat the Father’s allegation that the Mother was physically abusive with Julia. The Mother responded to the contents of these affidavits challenging the veracity, reliability and partisan nature of these affidavits.

131Justice Clay determined that none of the allegations of physical abuse by the Mother had been raised prior to August 2016. Justice Clay was also entitled to consider the actions of the Father throughout, including his attempts to manufacture evidence, to discount any weight to be given to these affidavits. Justice Clay was entitled to consider that the Father's actions and these affidavits all come after the Father's abduction of Julia and just a few weeks after the Mother had commended proceedings in the UAE. Justice Clay was entitled to accept the Mother’s evidence over the statements made in these affidavits.

132Justice Clay’s failure to expressly refer to these affidavits in his reasons does not constitute reversible error as a judge is not obligated to detail his findings on each piece of evidence, so long as the findings linking the evidence to the decision can be logically discerned. See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. I am satisfied that they do in this case.

133The failure to refer to the other affidavits in the reasons does not raise a serious issue on appeal.

The Audio Recordings

134The Father also points to the Father’s surreptitious audio recordings and alleges that Justice Clay erred in failing to properly consider this evidence.

135First, Justice Clay was entitled to reject these audio recordings, not only because of the public policy reasons to do so but also because of his determination that the Father was attempting to manufacture evidence against the Mother (a finding which was well supported by the evidence).

136In any event, Justice Clay did consider and deal with the audio recordings. He stated: “Even if I am wrong and the transcripts should be considered as evidence I do not find the contents to be helpful to the father’s position.” Justice Clay went on to describe exactly why this evidence did not establish what the Father hoped it would. Justice Clay concluded: “This father removed his 2 year old daughter from her mother’s primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child.”

137The Father has not established that there any basis that Justice Clay made a palpable and overriding error by making this finding of fact or rejecting the audio tapes.

The Video Recordings

138The Father relied on video recordings he made of Julia, where Julia made statements as to where the Mother had hit her. However, it was entirely reasonable for Justice Clay to reject this evidence given Julia's age and the clear evidence from the videos that the Father was directing and coaching Julia to make the statements he wanted her to make regarding the Mother's alleged abuse.

Julia’s UAE status

139The Father submits that Julia no longer has residency status in the UAE. This was specifically addressed by Justice Clay at para 16 of the Reasons. It is clear from the Mother’s affidavit that Julia is entitled to residency status (a visa) as a result of her Mother’s residency status. Justice Clay was entitled to accept this evidence.

Conclusion on this ground of appeal

140I do not find that any of the above issues submitted by the Father raise any serious issue to be tried on this appeal. This ground of appeal is nothing more than an attempt to re-argue the evidence. It does not establish any palpable and overriding error.

Justice Clay erred in not considering the evidence regarding the law of the UAE

141The Father submits that Justice Clay erred in finding that there was “no admissible evidence that, if the child was being beaten nothing would be done in the UAE”.

142Justice Clay reasons provided:

He asserted that in the U.A.E. it was not illegal to hit children in the home. He alleged that there was no protection for children in the U.A.E. as there is in Ontario. He said that if the child is returned to the U.A.E. that the mother will beat her and that there is no law or governmental authority that will be able to do anything. He said that the child will suffer serious physical harm if she is returned to the care of the mother.

With respect to U.A.E. law concerning the rights of children both parties had filed documents. The father had filed a copy of legislation as annotated by a private lawyer in the U.A.E. I do not consider that to be evidence as it is effectively the opinion of a practitioner, who is not qualified as an expert and has not published in recognized legal journals (or at least there was no evidence that he had). It was one lawyer’s view as to what the law means and such opinion evidence is not admissible. For different reasons I declined to review the statements of the “Wadeema” regarding children’s rights in the U.A.E. as submitted by the mother in response to the father’s arguments. I simply had no admissible evidence that supported the father’s position that if the child was being beaten nothing would be done in the U.A.E.

143Section 45 of the CLRA provides:

45. For the purposes of an application under this Part, a court may take notice, without requiring formal proof, of the law of a jurisdiction outside Ontario and of a decision of an extra-provincial tribunal.

(emphasis added)

144This section is permissive, not mandatory.

145Justice Clay had before him a copy of various sections of UAE law with “explanations” by a UAE lawyer – his expertise in this area, dealings with the Father, lack of supporting authorities – made the admissibility of this evidence a matter of discretion. Quite frankly, having reviewed this evidence, it is difficult to follow, fully understand or understand how it would apply to Julia and the circumstances of this case.

146The Father sought to rely on a United Nations’ “Human Rights” Report. In Isakhani v. Al-Saggaf, 2007 ONCA 539, the Court of Appeal held that a United Nations' Report was not admissible on issues involving spousal abuse. In this case, the United Nations' Report was more than four years old, unsworn, made for some unspecified reason by unspecified person(s).

147The Father relied on the opinion of a UAE lawyer. At the core of this evidence is that the UAE legal Code permits a parent to “discipline”. The Father suggests this means “striking”. The difficulty is that "discipline" is permitted in Canada, if it is reasonable. Section 43 of the Criminal Code permits a parent use force by way of correction (i.e. discipline) toward a child if the force does not exceed what is reasonable under the circumstances. See Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76, 2004 SCC 4. It is interesting to note that in its discussion, the Supreme Court referred to the United Nations’ Convention on the Rights of Children which provides for the supremacy of the child’s best interests. UAE is a signatory to that convention and has been so since January 3, 1997. However, the Father’s lawyer failed to deal with the impact of this Convention or its application to this case.

148The Mother filed from the “Judicial Department” the “Wadeema – Child Rights” 2016 which provides for a child’s right to protection. It provides that “the child protection and best interest shall be on the top priority of all decisions and procedures which would be taken in his respect. Justice Clay declined to accept the admissibility of this evidence.

149Justice Clay applied the same strict admissibility approach to the UAE evidence to both the Father and Mother’s evidence.

150Without a full understanding and explanation of the legal system in UAE, Justice Clay was entitled to disregard this evidence given the limited information provided by the Father’s lawyer or the Mother’s evidence and rely on the presumption. See K. (F.) v. R. (T.), 2016 ONCJ 139.

151As a result, Justice Clay was entitled to conclude that the Father had failed to meet his onus to establish that UAE law would not consider Julia’s best interests in deciding custody issues.

152The other difficulty with this argument is that the law of UAE only becomes relevant if the Mother physically abuses Julia (because the Father says it is permitted by law). However, if as found by Justice Clay, that the Mother does not physically abuse Julia then whether “discipline” permits the Mother to physically abuse Julia becomes entirely irrelevant.

153I see no serious issue with Justice Clay’s decision to exclude the Father’s opinion evidence regarding the rights of children in the UAE.

Justice Clay erred on making credibility findings on conflicting evidence

154The difficulty with this ground of appeal is that the Father was content to proceed with the motion on conflicting evidence. There is no suggestion that the Father sought to cross examine the Mother. There is no suggestion that the Father sought to call viva voce evidence. The Father did not ask for a trial on viva voce evidence. The Father does not suggest that he made any submission before Justice Clay regarding the conflicting evidence and what should be done.

155The Father, having chosen to proceed with the motion on the conflicting evidence, conceded the court should determine the jurisdiction issue on the affidavit evidence before the court. Now that the court has rejected his evidence and decided against the Father, the Father submits that the judge should not have made such findings. Without evidence that this was raised by the Father at the jurisdiction motion, I reject this as raising a serious issue to be tried on the appeal.

156It is too late to raise this argument. As stated in Brooks, cases such as this need to be dealt with expeditiously. If the Father wanted to raise the conflicting evidence as a basis for adjournment to allow viva voce evidence, it was incumbent on him to do so at the time.

Other grounds of appeal

157I agree with the Wife’s counsel that the remaining grounds of appeal are in essence an attempt to re-argue the same factual issues decided by Justice Clay.

158The Father submits that the UAE applies Sharia Law. As set out in Heath-Breakspear, this is not sufficient to establish serious harm would be occasioned if Julia were to be returned to the UAE.

Conclusion on Serious Issue to be tried

159The Father has not established that there is a serious issue to be tried on the appeal. Let me go on to deal with the other two factors to be considered.

Irreparable Harm

160In matters involving children, the test of irreparable harm includes a consideration of the best interests of the child. See Lefebvre at para 6.

161The Father submits that, unless the stay is granted, he will suffer irreparable harm in that Julia will be taken back to UAE. At the same time, the Father acknowledges and relied on the fact custody over Julia can be determined in the UAE in the Federal Court of Appeal. It is clear to me that there will be no irreparable harm to the Father if a stay is granted. It simply means that the UAE court will decide Julia's custody rather than Ontario courts. The Father says that he has “good merits” on the outstanding appeal. Arbitrators were appointed at the behest of the Father. The arbitrators will investigate, try to resolve the dispute and report back to the court.

162The Father’s appeal will not be moot. In French v. Onderik, [1996] O.J. No. 848 (C.A.), Justice Doherty at after finding that the mother had access and was participating in the foreign legal proceedings stated:

13 Mr. Hassan argues that it would be in Angel's best interests for her to remain where she has been for almost three years until this litigation is finally resolved. The cogency of that submission seems to me to be tied directly to the merits of the appeal. If, as is my view, the appeal has little likelihood of success, then it does Angel little good to postpone the inevitable for a further short period of time.

163The Father also suggests that there will be irreparable harm in that Julia will be “further assaulted” by the Mother. Unfortunately, this then returns to Justice Clay’s finding of fact that the Mother does not physically abuse Julia, a finding of fact which was open to Justice Clay on the evidence before him.

164Julia is a young child. If she has to travel to UAE and later be returned to Ontario because of a UAE final order granting the Father custody and authority to move to Canada with Julia, this will not have a significant impact on Julia because of her age.

165I do not find that the Father has established irreparable harm. He will be able to continue his claim for custody of Julia and other relief in the UAE.

Balance of Convenience

166The Father submits that the balance of convenience favours keeping Julia in Ontario pending the appeal.

167The Mother has not seen Julia for approximately 9 months. Julia has been uprooted from her mother, her surroundings, the extended family and other aspects of her life. As stated in Shortridge-Tsuchiya, the assumption is that the wrongful removal by a parent from the child's habitual residence is not in the child's best interests. The Father has not established to the contrary.

168The Father's actions also impact on the balance of convenience. The Father has not facilitated frequent calls between the Mother and Julia. These are Julia's formative years. She had been taken from her primary care giver. Contact with her Mother has virtually come to an end - it has for any physical contact. To permit this to continue is not in Julia’s best interests and favours not granting the stay.

169The Father has caused the current situation with his unilateral actions. It is hardly appropriate for him to argue the balance of convenience favours his continued retention of Julia away from her Mother.

Conclusion on Irreparable Harm and Balance of Convenience

170The Father’s abduction, delaying the proceeding in Ontario, delaying the UAE proceeding, delaying assistance to permit the Mother to get Julia’s passport when ordered, demonstrates a pattern of delay with the hope of extending the time he has with Julia and thereby establish a status quo. Granting a stay would reward the Father for his abduction and delay tactics.

Conclusion on the Stay Motion

171After considering the applicable factors and the circumstances of this case, I am satisfied that justice strongly favours a denial of the Father’s motion for stay pending the appeal. The Father’s motion is dismissed. So ordered.

The Analysis on the Security for Costs Motion

172The Father does not allege that he has assets in Ontario to pay any costs order. In essence, the Father submits that “Julia’s safety and future, should not be determined by his ability to pay a security for costs order”.

173Having determined above that the Father’s appeal does not raise serious issues to be tried, fundamentally that is the same as saying the Father’s appeal is devoid of merit or a “waste of time”.

174The Father has chosen not to put in any evidence regarding his ability to pay or not pay any security costs ordered. The Father led evidence that property belonging to him was sold in the UAE. However, the Father chose not to include in his responding materials any evidence regarding the proceeds of sale or other assets in Ontario or elsewhere. The only logical inference is that evidence would have evidence not be good.

175As a result, the Mother has established the applicability of Rule 38(26)(a) of the Family Law Rules. However, Rule 38(26) is permissive, not mandatory.

176In this case, the Father’s actions, delay tactics in the proceedings, and the delay in complying with Justice Clay’s order with regard to the passport are all factors which strongly support the need for an order for security for costs.

177The issue remains whether the court should exercise its discretion to award security for costs.

178I am not persuaded that security for costs should be awarded in this case. First, there is little evidence as to how the amount claimed - $20,000 – was arrived at. Second, given the fact this appeal relates to serious issues involving Julia’s best interests, the actual merits of the appeal should not be determined by default – the non-payment of security for costs.

179I also decline to award security for costs of Justice Clay’s cost order. In my view, while there is no rule prohibiting this court from ordering costs that had been awarded below pending the appeal, there need to be circumstances which suggest that it is in the interests of justice that such additional security should be ordered. There are none in this case.

Conclusion on the Security for Costs Motion

180The security for costs motion is dismissed.

Costs

181Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

182Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

183There shall be no reply submissions without leave.

Ricchetti, J.

Date: June 7, 2017

COURT FILE NO.: FS-17-0084-00

DATE: 20170607 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MHD Khaled Daji, Applicant/Father AND: Nada AlNaser, Respondent/Mother ENDORSEMENT Ricchetti J. Released: June 7, 2017