Court File and Parties

COURT FILE NO.: FS-17-21535 DATE: 20170706 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sajid Rana, Applicant AND: Aisha Rana, Respondent

BEFORE: Kiteley J.

COUNSEL: K. Maurina, for the Applicant S. Bookman and G. Bookman, for the Respondent

HEARD: July 6, 2017

Endorsement

[1] These are two motions in a Hague Convention application involving children who were born February 21, 2006 (11.5 years old), December 23, 2007 (9.5 years old), October 19, 2009 (7.5+ years old) and January 17, 2015 (2.5 years old). The older children were born in Canada and the younger two children were born in Netherlands. All children have lived in Netherlands and are Dutch citizens.

[2] The family resided together except for a separation in 2012 which resulted from a serious assault by the applicant against the respondent. The parties reconciled and subsequently the 4th child was born.

[3] In early 2016 the applicant and respondent ceased to reside together full time. The applicant says he simply changed to sleeping at his mother’s home which was close by. The respondent says he took all his things and left and they have been separated since then. The difference need not be resolved for these motions. The parties engaged in faith based counselling and there was discussion about a divorce but no steps had been taken either for a religious or a civil divorce. The parties differ about the extent of his involvement with the children after the change but he was involved with the children on an ongoing basis.

[4] The applicant is a business man who travels often to Pakistan. On November 28, 2016 he left to go to Pakistan. The parties have different versions of why. The applicant says he went on a usual business trip and had a return ticket for January 5, 2017. The respondent says that the applicant told the eldest son that he was going to Pakistan to remarry. The difference need not be resolved.

[5] At the time of his departure, the children did not have passports. The parties differ as to why the passports had been destroyed but the difference need not be resolved.

[6] On December 13, 2016 the Respondent and her lawyer appeared in the District Court of Zeeland-West-Brabant and obtained an interim order dated December 15, 2016 granting her permission to apply for new passports for the children; and permission to allow her to go to Canada for the coming Christmas holiday from December 20 to January 10, 2017 for a family visit. The Respondent concedes that the applicant was not served with notice of such an attendance. The order further indicates as follows:

The husband and wife have joint parental authority over these minor children.

The Dutch court has jurisdiction to take cognizance of the application, as the minor children have their habitual residence in the Netherlands. On the same ground, Dutch law applies to the parental responsibility.

[7] The Respondent obtained passports for the children, flew to Toronto and stayed.

[8] The Applicant learned from his family who reside in the immediate area, that the children were not living in the home. He tried to return earlier than planned but could not get a flight.

[9] The Applicant and Respondent have different views about what steps the Applicant took to locate the children but the differences need not be resolved in these motion. The Respondent did not inform him where she was with the children. Within a few weeks he was able to ascertain that they were living with the maternal grandmother in Toronto.

[10] The Applicant went to police and other authorities.

[11] In a letter dated February 28, 2017 the Central Authority for the Province of Ontario notified the Superior Court of Justice at Toronto that the Hague Convention application had been initiated. As I understand it, the order dated December 15, translated into English, was provided by the Central Authority in Ontario.

[12] The Applicant filed his application on May 29, 2017 and immediately brought a motion for a non-removal order which was granted in this court on June 20. At the same time, the Applicant’s motion for access and the Respondent’s anticipated motion for appointment of OCL were adjourned to today.

[13] In her Answer, the Respondent relies on article 13(b).

Motion pursuant to s. 112(1) of the Courts of Justice Act

[14] In the notice of motion counsel for the Respondent asked for an order that the OCL represent the children. However, counsel confirmed that the request is pursuant to s. 112(1) of the Courts of Justice Act which provides that the OCL “may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education”.

[15] In making an order in a Hague Convention proceeding, there are important guiding principles reflected in the preamble of the Hague Convention: the firm conviction that the interests of children are of paramount importance in matters relating to their custody; and the desire to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.

[16] In deciding not to make an order referring the matter to the OCL, I have taken the following into consideration.

[17] If I made such an order today, it is only a request to the OCL. The OCL has procedures that include intake, parties complete questionnaire, approval of the request, appointment of investigator, conduct the investigation, disclosure meeting and report. In this case, the investigation would be focused on relationships between and among the children and others in the Netherlands. Even if the OCL respected my request to accelerate the process, it would be minimally 60 days and more likely 90 days. I am mindful of the views of the court in Crnkovich v. Hortensius 2008 CarswellOnt 1951 as follows:

Furthermore, one of the important goals of the Hague Convention is to facilitate the prompt return of wrongfully removed children. It is ultimately in the best interests of children to have their rights adjudicated by the legal system of their habitual residence. Thomson v. Thomson, [1994] 3 S.C.R. 551. The appointment of the OCL or an assessor would delay the proceedings considerably and defeat the Convention policy of expeditious remediation of the harm done by a wrongful removal.

[18] The Respondent placed the 3 older children in school when she arrived earlier in the year. The school year has ended. In Ontario and in the Netherlands school commences on or about September 4, 2017. It is important that the decision be made in time for school in the fall.

[19] What the Respondent really wants to accomplish is the “views and preferences” particularly of the eldest child. That is not what is the focus of a s. 112 investigation although it often plays a part. It is inappropriate to use the vehicle of a s. 112 investigation to accomplish that objective. Even if the views and preferences of the eldest child might be relevant, it can have no impact on the other children. As indicated in the affidavit of the Applicant, there is a basis for concern that the anxieties that the Respondent says the children are experiencing are the result of her influence and for that reason would not be helpful.

[20] The fundamental issue is whether the Respondent wrongfully removed the children from the Netherlands. In this case, because the Respondent took proceedings in the Netherlands, there is a clear judicial order that the parents have joint parental authority over the children and that their habitual residence is in the Netherlands. On the strength of the order she caused to be made, I find for purposes of these motions that wrongful removal is established. Furthermore, on the basis of that order, I find for purposes of these motions, that the Respondent misrepresented to the court in the Netherlands that she intended to return by January 10, 2017 and has not done so.

[21] The issue is not whether it is in the best interests of the children that they live with their mother in Toronto or with their father in the Netherlands. The issue is whether the court in the Netherlands or the court in Toronto will make such decisions.

Applicant’s request for parenting time

[22] The Applicant has had no contact with the children since late November, 2016. I am not persuaded that the concerns of safety that the Respondent raises impact the question of whether the children see their father via skype. Counsel for the Applicant has suggested logistical arrangements which are reasonable.

Hearing of the Hague Convention Application

[23] As indicated below, I have set the date for August 31. The earliest date available is August 1 but realistically the parties cannot be ready by that date. There is a case conference on July 26 as required by our rules. However I will designate it as a settlement conference with an expectation that the Applicant will participate either in person or electronically, that the Respondent will attend, and that the parties will actively negotiate an outcome that will avoid the hearing.

Costs of the motions

[24] Counsel for the Applicant asks for substantial indemnity costs in the amount of $8131.20. I agree that the Applicant has been successful and is presumed entitled to costs. I am not persuaded that substantial indemnity is appropriate. Furthermore, I do not want the costs order to be a barrier to the hearing of the application and will defer payment date to the judge hearing the application.

ORDER TO GO AS FOLLOWS:

[25] The motion by the Respondent for an order pursuant to s. 112 of the Courts of Justice Act is dismissed.

[26] The motion by the Applicant for an order for parenting time with the children is granted on the following terms:

(a) Commencing Sunday July 9, 2017, the Applicant will initiate calls to the Respondent on Sundays, Tuesdays and Thursdays at 5:00 p.m. EST (b) The duration of the calls will start at not less than 15 minutes and shall expand over time to be 45 to 60 minutes. (c) By July 7, 2017 at noon EST counsel for the Respondent shall confirm in writing to counsel for the Applicant the contact details. (d) The Respondent shall ensure that the children are available at the computer at the designated time. (e) The Respondent shall leave the children in the room with an adult and the Respondent shall close the door to the room. (f) The Applicant shall ensure that an adult is in the room with him at all times. (g) The Applicant and Respondent are prohibited from recording these visits.

[27] The Respondent shall pay costs of $5000 provided that the judge hearing the application shall decide on payment date.

[28] The case conference scheduled for July 26, 2017 at 2:30 is converted to a settlement conference on these terms:

(a) The Applicant shall attend in person if possible, and otherwise by phone or videoconference and counsel for the Applicant is responsible to make the arrangements. (b) The Respondent shall attend in person. (c) Counsel for the parties shall serve and file a settlement conference brief and an offer to settle by July 21 at 4:00 p.m.

[29] The hearing of the application is scheduled for August 31, 2017 at 10:30 for 4 hours provided that:

(a) By July 24, 2017 counsel for the Applicant shall serve and file all materials on which the Applicant intends to rely that have been properly deposed and or certified; (b) By August 14, 2017 counsel for the Respondent shall serve and file all responding materials. (c) By August 28, 2017, counsel for the Applicant shall serve and file reply evidence, if any, bearing in mind it must be reply and not fresh evidence; (d) By August 28, 2017 each counsel shall serve and file a factum. (e) The hearing will be conducted on the basis of the written record without viva voce evidence.

Kiteley J. Date: July 6, 2017