CITATION: Kanafani v. Hughes, 2017 ONSC 5253

COURT FILE NO.: CV-12-452465

DATE: 20170905

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

THWAIBA KANAFANI

Plaintiff

– and –

COURTNEY HUGHES

Defendant

Thwaiba Kanafani representing herself

Adam Pantel

for the Defendant Courtney Hughes

HEARD: June 12, 2017

FAVREAU J.:

Overview

[1] The defendant, Courtney Hughes, brings this motion for summary. Ms. Hughes acted as the plaintiff Thwaiba Kanafani’s lawyer in family law litigation involving a custody dispute and a property dispute. Ms. Kanafani claims that Ms. Hughes was negligent in a number of respects, including by failing to put forward various pieces of evidence in the family law disputes.

[2] For the reasons that follow, I am granting summary judgment to Ms. Hughes. I am satisfied that the record before me allows me to make a just and fair determination of the case, and that a trial is not necessary. Ms. Kanafani is understandably unhappy to have been unsuccessful in her family law disputes, but Ms. Hughes did she not cause any of Ms. Kanafani’s losses. It is evident that Ms. Kanafani had an opportunity to put forward much of the evidence she claims she was unable to present, and that in any event such evidence would not have affected the outcome of the proceedings.

Factual Background

Ms. Kanafani

[3] Ms. Kanafani is originally from Syria. She moved to Canada in 2002.

[4] The underlying family law proceeding involved custody issues over Mr. Kanafani’s son Omar and a claim involving a property owned by Omar’s father, Mohammed Abdalla.

[5] Mr. Abdalla is originally from Egypt. He moved to Canada in 2004. Ms. Kanafani and Mr. Abdalla met in Canada in 2004, and had their son, Omar, in 2005. They separated shortly after Omar’s birth, after which he lived with Ms. Kanafani.

[6] In May, 2006, Ms. Kanafani travelled with Omar to the United Arab Emirates (the “UAE”) to visit family. They stayed in the UAE from May 16, 2006 to September, 2006.

[7] When Ms. Kanafani and Omar returned to Canada, they lived in a condominium owned by Mr. Adballa. They moved out of the condominium in January 2007.

[8] In June of 2007, Ms. Kanafani travelled again with Omar to the UAE to visit family, after which they travelled to Syria. In October 2007, Ms. Kanafani sent Omar back to UAE to live with her sister.

[9] Ms. Kanafani rejoined Omar and her sister in the UAE shortly thereafter, but returned to Canada in January 2008, and left Omar with her sister in the UAE. In July 2008, Ms. Kanafani’s sister traveled to Egypt, where she left Omar with Mr. Abdalla’s mother.

[10] Ms. Kanafani did not see her son Omar from the time she left him with her sister in January 2008 to sometime after the conclusion of the custody law dispute in 2012.

[11] On May 19, 2009, Ms. Kanafani commenced an application in the Ontario Court of Justice, seeking custody of Omar and an order for his return to Canada.

[12] On October 1, 2009, Ms. Kanafani registered a matrimonial designation on the title to Mr. Abdalla’s home. She subsequently commenced an application in the Ontario Superior Court of Justice claiming that she had a matrimonial interest in the home.

[13] Ms. Kanafani initially represented herself on both matters.

Ms. Hughes

[14] Ms. Hughes first met Ms. Kanafani on December 8, 2009. At that time, she was an associate practicing family law with Steven Bookman, Barrister & Solicitor.

[15] At the time of their first meeting, Ms. Kanafani had already commenced the custody and property proceedings, and both matters were scheduled for hearings in the very near future.

[16] In the context of the custody application, Mr. Abdalla brought a motion to challenge the Ontario court’s jurisdiction over the custody issue, taking the position that, as Omar was a habitual resident of Egypt, that was the country in which the custody issue should be addressed. The jurisdiction issue was set to go to trial on December 22, 2009.

[17] In respect of the dispute over whether Mr. Abdalla’s property was a matrimonial home, Mr. Abdalla brought a motion for summary judgment on the basis that he and Ms. Kanafani were not married. The motion was scheduled to be heard on December 17, 2009.

[18] Following their initial meeting, on December 11, 2009, Mr. Bookman obtained a legal aid certificate for the purpose of representing Ms. Kanafani at the jurisdiction trial in the custody dispute. Ms. Hughes also secured Mr. Bookman’s agreement that he would conduct the trial as she was junior counsel at the time and wanted to ensure that more experienced counsel was available to conduct the trial with her.

[19] When Ms. Kanafani initially retained Ms. Hughes, she and Mr. Bookman did not obtain legal aid certificate in relation to the property claim because they wanted to do further research and obtain more information from Ms. Kanafani to assess the merits of the claim.

Custody dispute

[20] Following the beginning of her retainer, Ms. Hughes made arrangements to adjourn the jurisdiction trial to January 8, 2009.

[21] By the time Ms. Hughes was retained, it had already been determined that the trial would proceed on the basis of affidavits and cross-examinations. Ms. Hughes nevertheless sought permission to adduce additional affidavits sworn by Ms. Kanafani and her mother, and was given leave to do so by the Justice Scherr who was to preside over the trial in the Ontario Court of Justice.

[22] In court cross-examinations took place on January 8, 2009, after which the trial was adjourned to be completed on March 22, 2009.

[23] In advance of March 22, 2009, counsel for Mr. Abdalla brought a motion to strike some of the affidavit evidence put forward by Ms. Kanafani which predated Ms. Hughes’ retainer. The motion proceeded on consent.

[24] The evidence on the jurisdiction motion was completed on March 22, 2009. On March 23, 2010, Ms. Kanafani sent an email to Ms. Kanafani thanking her as follows:

Hello Courtney,

Thank you for yesterday. Thank you for being very supportive.

Please convey my thanks and appreciation to Steven, he made very calm and he left my moral a lot.

I don’t know how to express my pleasure and happiness… thank you very much

“Flower”

Thwaiba

[25] After the completion of the evidence, Justice Scherr gave the parties permission to file written arguments. Ms. Kanafani’s factum was to be filed by May 3, 2010. Ms. Hughes sent a copy of the factum to Ms. Kanafani and filed it with the court.

[26] After the factum was filed with the court, Ms. Kanafani asked Ms. Hughes to make changes to the factum. Ms. Hughes’ evidence on this motion is that the changes requested by Ms. Kanafani were in the nature of new evidence. Ms. Hughes and Mr. Bookman spoke to Ms. Kanafani on May 3, 2009, to try to persuade her that the revisions she wanted to make to the factum were improper. However, later that day Ms. Kanafani indicated that she intended to represent herself.

[27] Ms. Hughes then took steps to withdraw the factum she and Mr. Bookman had filed, and obtained permission for Ms. Kanafani to file her own factum, which she did.

[28] Justice Scherr released his decision on May 17, 2010, finding that Ontario did not have jurisdiction over the custody dispute.

[29] At the outset of his decision, Justice Scherr noted that he gave Ms. Kanafani an opportunity to file her own submissions after she had discharged Ms. Hughes:

The evidence was completed on 22 March 2010. Counsel for the parties asked for permission to make written submissions and timelines were set. Counsel submitted these submissions within the timelines. Counsel for the mother submitted her submissions on 3 May 2010. The next day, the mother filed a “Notice of Intention to Act in Person” and brought a motion to file amended written submissions. This was opposed by the father. In the interest of the parties being able to put their best foot forward, I granted leave to the mother to file her amended submissions. She did so on 5 May 2010.

[30] Justice Scherr reviewed the law to be applied for determining the jurisdiction issue, including the following sections of the Children’s Law Reform Act that are applicable to this case:

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).

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. R.S.O. 1990, c. C.12, s. 22 (2); 2016, c. 23, s. 6.

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. R.S.O. 1990, c. C.12, s. 22 (3).

[31] Justice Scherr went on to describe the law on the issue of jurisdiction as follows:

The court must first determined whether the child was habitually resident in Ontario at the commencement of the application as set out in clause 22(1)(a) of the Act. If so, this court will presumptively have jurisdiction to hear the mother’s application. If the court does not have jurisdiction under this clause, it can still find jurisdiction to hear the case under clause 22(1)(b) of the Act, but only if all six conditions in the clause are met.

[32] He then went on to describe the parties’ respective positions:

The father argues that Egypt is the child’s habitual residence as the child has resided with the paternal grandmother (a person other than a parent) on a permanent basis for a significant period of time (clause(2)(c) of the Act). In the alternative, he argues that UAE is the child’s habitual residence, as the child resided with Amal on a permanent basis for a significant period of time.

The mother argues that clause 22(2)(c) is inapplicable, as the child did not live with either the paternal grandmother or Amal on a permanent basis for a significant period of time. She argues that clause 22(2)(b) is the applicable clause and that Ontario is the child’s habitual residence. In the alternative, she argues that the child was improperly withheld from her, without her consent, pursuant to subsection 22(3) of the Act. If I accept her evidence, then the court would have jurisdiction to hear the case.

[33] In his review of the evidence, Justice Scherr noted that the “parties provided radically different versions of events and their intentions with respect to the child”. In his decision, Justice Scherr found that he preferred Mr. Abdalla’s evidence, and consistently did so based on findings that he did not find Ms. Kanafani’s evidence credible. Justice Scherr reflected on Ms. Kanafani’s overall credibility at the outset of his review of the evidence as follows:

I found the evidence of the father and his witnesses far more credible than the evidence of the mother. The mother’s evidence was often evasive, non-responsive and inconsistent. At times, I had the sense that she was making up the evidence as she went along. I will limit myself to reviewing the key areas where I found her evidence not to be credible. This is by no means an exhaustive list.

[34] An example of evidence that Justice Scherr did not find credible is with respect to Ms. Kanafani’s assertion that Omar did not return with her from the UAE in January of 2008 because Ms. Kanafani could not afford his airline ticket:

The mother originally deposed that she did not return with the child from the UAE in January of 2008 because of not being able to afford his airline ticket. She deposed in paragraph 8 of her affidavit of 15 May 2009:

In January 2008 when I wanted to return to Canada, I had no money to pay for the ticket of Omar as he had turned three and the airfaire had raised to over one thousand four hundred dollars. I asked the Respondent to pay for Omar’s ticket but he refused. I returned to Canada to find a job and pay for a ticket for Omar.

This story quickly unraveled on cross-examination where:

a) The mother admitted that she could have accessed a line of credit to pay for the child’s return to Canada.

b) The mother admitted that her family offered to pay to have the child returned at the time, but she refused to accept this offer.

c) The mother admitted that she had left the child in the UAE as a ploy to force the father to live up to his financial obligations and pay for the child’s airline ticket.

Despite detailed affidavits from the mother, she had never mentioned any of these critical facts prior to being cross-examined.

[35] Having gone through a lengthy assessment of the evidence, including numerous findings in relation to credibility, Justice Scherr concluded his decision with the following findings of fact:

I make the following findings of fact on the conflicting evidence:

a) In January of 2008, the mother left the child to be raised with Amal in the UAE indefinitely when she could not convince the father to assume primary care for him.

b) The mother had the financial capability of having the child return to Canada in January of 2008, but chose not to do so.

c) The mother could have brought the child back to Canada at any time before the child moved to Egypt, but chose not to do so.

d) The mother left the child with Amal to further her own education and career.

e) The child would have likely continued to reside in the UAE, if not for Amal’s forgetting to renew his visa.

f) The parties then agreed that the child would live with the paternal grandmother in Egypt on an indefinite basis.

g) There was no agreement or discussion at the time (July of 2008) about the paternal grandmother’s bringing the child back to Canada.

h) The parties did not reconcile in 2008.

i) The child was placed in the care of the paternal grandmother with the mother’s consent. She was not tricked into this arrangement. The child was not improperly withheld from her.

j) The mother chose to have little contact with the child while he was in the care of the paternal grandmother.

k) The mother expressed her satisfaction with the care being provided to the child by the paternal grandmother.

l) The mother changed her mind about this arrangement for a brief period in November of 2008.

m) The mother subsequently changed her mind again and expressed her satisfaction about this arrangement in her e-mail of 23 January 2009. As of this date, she was content with the child’s residing with the paternal grandmother in Egypt indefinitely.

n) The mother changed her mind again in March 2009 and actively began to seek the return of the child.

o) The child lived with the paternal grandmother in Egypt on a permanent basis for a significant period of time prior to the mother’s commencing this application in May 2009.

[36] Justice Scherr also found that, even if Ontario had jurisdiction over the custody dispute, he would have declined to exercise jurisdiction on the following grounds:

The following are the reasons why I would have declined exercising jurisdiction to hear this case:

a) The child has lived most of his life outside Canada.

b) The child resides in Egypt. He is both an Egyptian and Canadian citizen.

c) The child has spent most of his life raised in Arab cultures.

d) The child has a closer connection with Egypt than Ontario. Egypt is the home the child knows.

e) The child no longer has a real and substantial connection to Ontario. His only remaining connection to Ontario is his mother and maternal grandmother. His father now resides in Quebec. The child does have a real and substantial connection to Egypt.

f) There are no exceptional circumstances that would justify hearing the case other than in the jurisdiction where the child has his closest connection – Egypt.

g) The evidence established that the child is thriving in Egypt. He is being well-cared for, is doing well in school, has friends in the community and is involved in many activities. He has positive relationships with many paternal family members. After being shuttled around by his mother, he has finally achieved stability.

h) The paternal family is now the family that the child knows and with which he is most closely connected. The mother has not seen him since she left him behind in the UAE more than two years ago.

i) The best evidence available about the best interests of the child is available in Egypt, not Ontario. Witnesses such as caregivers, educators and medical professionals are in Egypt.

j) The matter has been brought before the court in Egypt.

k) A basic principle of conflict jurisdiction law is to avoid a multiplicity of proceedings and potentially conflicting results.

[37] Ultimately, Justice Scherr granted Mr. Abdalla’s motion, finding that Ontario did not have jurisdiction over the custody dispute. He found that Omar’s habitual residence was Egypt and, that Ms. Kanafani’s intention was for him to reside in Egypt indefinitely and that this was therefore not a temporary placement.

[38] Ms. Kanafani subsequently requested that Justice Scherr set aside his decision and permit her to file fresh evidence. In his endorsement dated June 28, 2010, Justice Scherr dismissed the request finding that:

The applicant submits that she wants to introduce new evidence that her lawyer failed to present at trial. This is evidence that was available and could have been presented at trial.

The applicant essentially does not agree with the trial result and wants another trial. The applicant does not get the opportunity to introduce additional evidence that she had at the time of trial, or could have obtained for the trial and chose not to introduce, because she is dissatisfied with the outcome of the trial. It would be improper for me to go behind the reasons for her counsel not leading this evidence.

The applicant has had her trial. There was a thorough testing of the evidence. The applicant was given every opportunity to put her best foot forward. She filed voluminous material in support of her claim. The trial was adjourned twice to permit her to obtain counsel and file further materials. She was represented by counsel at trial. Her lawyer provided written closing submissions. She asked for permission to make additional closing submissions, beyond the timeline given, after she discharged her lawyer. I gave her the opportunity to do this.

I reviewed the additional material filed. It contained significant inadmissible and self-serving information. It did not create a basis to order a new trial.

[39] Ms. Kanafani indicates in her materials that she initiated an appeal of Justice Scherr’s decision, but that she did not pursue the appeal.

[40] It is also evident that, while the issue of Omar’s custody did proceed in the courts in Egypt, Mr. Abdalla ultimately returned Omar to Canada to live with Ms. Kanafani in 2012.

Property dispute

[41] The property dispute involves a claim by Ms. Kanafani that she had an interest in Mr. Abdalla’s home. On October 1, 2009, acting on her own behalf, Ms. Kanafani registered a matrimonial home designation on title to the home and commenced an application in the Superior Court of Justice for Ontario.

[42] As indicated above, in response to the application, Mr. Abdalla brought a motion for summary judgment, on the basis that he had never been married to Ms. Kanafani and that she therefore had no interest in his home.

[43] The motion for summary judgment was originally scheduled for December 17, 2009, which was a few days after Ms. Kanafani retained Ms. Hughes. Ms. Hughes attended the motion on December 17, 2009, and obtained an adjournment of the motion to January 26, 2010.

[44] Ms. Hughes’s evidence on the motion is that she provided advice to Ms. Kanafani that Mr. Abdalla’s motion for summary judgment would likely be unsuccessful because Ms. Kanafani did not appear to have evidence of the marriage.

[45] Ms. Hughes obtained another adjournment of the motion from January 26, 2010 to March 11, 2010. During this time period, Ms. Hughes continued to advise Ms. Kanafani that she did not believe that she could succeed on the motion for summary judgment, advising her that if she wanted to proceed she should represent herself.

[46] Ms. Kanafani served a Notice of Change in Representation on May 4, 2010, and ultimately represented herself on the motion which was heard on June 14, 2010 by Justice Spies in the Superior Court.

[47] Justice Spies released her decision on June 28, 2010, granting the motion for summary judgment.

[48] At the outset of her decision, Justice Spies summarized the procedural history, including an indication that Ms. Kanafani served her responding affidavit following the termination of Ms. Hughes’ retainer and that Ms. Kanafani was given an opportunity to file additional evidence at the commencement of the hearing on June 14, 2010:

At the outset of the hearing the Applicant requested an adjournment as she stated that she had more materials to show that she and the Respondent were together after the date the Respondent alleges that they separated. I dismissed her request. The Respondent’s motion was first scheduled to be heard on December 17, 2009. The Applicant was served on December 2, 2009. Counsel for the Applicant at the time, Courtney Hughes, attended on the return of the motion and it was adjourned on consent to January 26, 2010 to allow the Applicant to serve and file responding materials. Before the return date, Ms. Hughes advised that she required an adjournment in order to question the Respondent. No responding materials had yet been filed. On January 26, 2010, the motion was adjourned on consent to March 11, 2010 subject to terms ordered by Goodman J. which specified that the responding materials were to be served prior to questioning which was to take place during the week of February 15, 2010. Mr. Bertao, counsel for the Respondent, was advised on February 17, 2010 that Ms. Hughes no longer required questioning and that the Applicant’s responding affidavit was ready but due to the Applicant being ill, she had not yet signed it. Counsel agreed to adjourn the motion to May 31, 2010 to be heard as a long motion. On May 4, 2010, Ms. Hughes served a Notice of Change of Representation which stated that the Applicant intended to represent herself. The motion was further adjourned to June 14, 2010 as a judge was not available. The Applicant did not comply with the timelines ordered by Goodman J. for the filing of her responding affidavit and it was not served until May 19, 2010, along with an Amended Application. As a result, the Respondent also replied late with an affidavit sworn May 23, 2010.

In light of this history, I concluded that the Applicant’s request for an adjournment was without merit and it was denied. Her Designation has clouded title to the Property since October 1, 2009. During the hearing of the motion, the Applicant sought to file a further affidavit sworn on June 10, 2010. I presumed this was the further material that she referred to at the outset of the hearing. Mr. Bertao originally objected to the filing of this affidavit and I was not inclined to accept it as the delay was all the fault of the Applicant. However, during the course of argument, Mr. Bertao very fairly consented to my accepting the affidavit for consideration on this motion and it was filed.

[49] On the motion, Justice Spies accepted that the parties had been married at a religious ceremony in Toronto on August 28, 2004. However, given that no marriage license was obtained and that the marriage was not registered in Ontario, it did not qualify as a marriage under the Marriage Act, R.S.O. 1990, c. M.3. The primary issue addressed by Justice Spies was whether a subsequent attendance before a judge in January 2005 in Abu-dhabi in the UAE qualified as a marriage for the purpose of the Marriage Act. Ms. Kanafani argued that it did while Mr. Abdalla argued that it did not.

[50] Justice Spies ultimately found that the attendance before a judge in Abu-dhabi was not a marriage. Her reasons for making this finding included findings of credibility against Ms. Kanafani:

There is no evidence that there was any “Marriage Contract” before the judge and that is confirmed by the certificate itself which does not refer to any particular document number. On the plain reading of this certificate, the judge heard evidence from the parties and confirmed the parties were married on August 28, 2004. This is clear not only from the date referred to, but the use of past tense throughout and the fact that the certificate records the fact that the marriage had already been consummated. There is absolutely no language in this certificate that suggests this judge officiated at a new marriage ceremony in Abu-dhabi.

The issue then is notwithstanding the clear wording in the “Proof of Marriage” certificate, does the recent affidavit of the Applicant raise a genuine issue for trial as to whether or not there was a valid marriage ceremony performed in Abu-dhabi. The affidavit of the Applicant dated May 14, 2010, is at odds with other evidence that she and her mother have given as follows:

a) In the Statement of Live Birth for Omar dated August 24, 2005, it is stated that the marital status of the mother is “common law”. This statement was certified to be true and correct to the best of the parents’ knowledge and belief.

b) In the separation agreement executed by the parties on February 1, 2006, the recitals state that “THE PARTIES ACKNOWLEDGE THAT: they have cohabited”. There is no statement that the parties were married.

c) By email dated October 24, 2004, the Applicant wrote to an immigration lawyer stating that she was not married and that “there is no marriage certificate, neither Islamic or legal”.

d) In an affidavit sworn May 15, 2009, in the custody proceedings in the Ontario Court of Justice, the Applicant deposed that “the Respondent and I married on August 28, 2004.”

e) On June 15, 2009, the Applicant swore an affidavit in the child custody proceedings wherein she stated “the Respondent and I are legally married. On December 4, 2004, I went to Abu-dhabi. In January 2005, the Respondent joined me there and we registered our marriage with the authorities in Abu-dhabi.” (emphasis mine)

f) On November 26, 2009, the Applicant swore another affidavit in the same proceedings which states: “In August, 2004 I married the Respondent religiously by Sharya … the Respondent and me went to the United Arab Emirates to meet my family and register in Emirates Court in the 5th of Jan. 2005.” (emphasis mine)

g) In the Applicant’s application issued October 16, 2009, she states that the parties were married on August 28, 2004. No mention is made of the any ceremony on January 5, 2005.

[51] Again, while Ms. Kanafani claims in her materials that she initiated an appeal of this decision, she did not proceed with the appeal.

Claim against Ms. Hughes

[52] Ms. Kanafani commenced this action against Ms. Hughes on April 30, 2012. In her claim, she seeks various heads of damages including “$38,500CAD equity for half of the Matrimonial Home”, “$300CAD/month Spousal Support” and “3 years time of lost wages and career”.

[53] In her claim, Ms. Kanafani states that in July 2008 Omar was taken to Egypt for the purpose of traveling back to Canada with his grandmother, who she believed intended to sell her business and move to Canada permanently. She alleges that that between July 2008 and April 2009, she was advised that there was a delay in Omar’s travel because his grandmother was having difficulty selling her business. She further claims that in April 2009, Omar’s grandmother stated that she would not return Omar to Canada and that if Ms. Kanafani made a report to the police “the grandmother will not hesitate to murder the child by slaying him to pieces and burry evidence”.

[54] The plaintiff claims that she initially commenced proceedings for the return of her son, and then retained Ms. Hughes to represent her on the application. Ms. Kanafani alleges that the jurisdiction motion was wrongly decided because Omar was only meant to be in Egypt temporarily and she had extensive evidence of her intention to have Omar return to Canada soon after he arrived in Egypt. In particular, she claims to have extensive communications in the form or emails, text messages and telephone logs that show her persistent communications with Omar’s father pleading for his return.

[55] Ms. Kanafani alleges that Ms. Hughes was negligent in her representation on the custody dispute because she failed to put forward this evidence, and instead allowed the motion to proceed on the basis of evidence falsified by Mr. Abdalla.

[56] Ms. Kanafani also claims that Ms. Hughes was negligent in the manner in which she represented her in the property dispute. She claims that Ms. Hughes refused to put forward evidence on her behalf of a marriage certificate from the religious ceremony in Toronto and evidence of a marriage in Abu-dhabi.

[57] Besides the claims about the custody and property proceedings, Ms. Kanafani also claims that Ms. Hughes failed to bring an application for spousal support on her behalf.

[58] In her statement of defence, Ms. Hughes denies that she was negligent in her representation of Ms. Kanafani, and she denies that she caused any damages to Ms. Kanafani.

[59] Ms. Kanafani filed a reply, in which she essentially elaborates on some of the evidence she claims Ms. Hughes should have presented on her behalf at the jurisdiction trial and in the property dispute.

Analysis

Test on Motion for Summary Judgment

[60] Under subrule 20.04(2), summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

[61] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[62] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, supra, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct a procedure such as a mini-trial, rather than a full trial.

[63] The responding parties may not rely on the prospect of additional evidence that may be tendered at trial; the respondents must put their best foot forward on the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff’d 2014 ONCA 878 (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).

[64] In Sanzone, the Court of Appeal addressed cases such as this one where a respondent on a motion for summary judgment is self-represented:

Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36…

Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.

Claim in negligence

[65] Reading the plaintiff’s claim generously, Ms. Kanafani is essentially alleging that Ms. Hughes was negligent in the manner she represented her in the custody dispute and the property dispute, and in failing to advance a spousal support claim.

[66] In order to make out a claim in negligence, a plaintiff must establish that:

a) The defendant owes the plaintiff a duty of care;

b) The defendant has breached the standard of care;

c) The breach has caused the plaintiff’s damages; and

d) The plaintiff has suffered compensable damages.

[67] In a negligence claim against a solicitor, typically the plaintiff must adduce expert evidence to show that the defendant fell below the standard of care. Neither party adduced expert evidence in this case.

[68] However, the defendant’s argument is primarily that Ms. Hughes was not the cause of any damages Ms. Kanafani may have suffered. For the reasons set out below, I am satisfied that I can decide this case without the assistance of expert evidence.

No negligence in representation of Ms. Kanafani in custody dispute

[69] Ms. Kanafani’s primary argument in relation to the custody dispute is that Ms. Hughes was negligent in failing to advance evidence that she claims would have defeated the jurisdiction motion. In particular, she claims that Ms. Hughes should have put forward evidence that:

a) Ms. Kanafani had evidence in emails, text messages and telephone messages that she consistently sought Omar’s return and that he was therefore in Egypt without her consent;

b) Omar’s grandmother in Egypt had threatened to harm Omar; and

c) It was evident from the outset that the intention was for Omar to return to Canada from Egypt because Ms. Kanafani brought a washing machine to Egypt that she intended Omar and his grandmother to bring to Canada.

[70] The evidence on whether Ms. Kanafani actually requested that Ms. Hughes advance this evidence is difficult to assess. In her affidavit, Ms. Hughes states that Ms. Kanafani repeatedly requested that Ms. Hughes put forward additional evidence on her behalf, but that Ms. Hughes had to explain to her on many occasions that the evidence she sought to introduce was irrelevant. However, Ms. Hughes does not describe the specific evidence in dispute.

[71] For her part, Ms. Kanafani has not put forward any clear evidence that she shared any evidence on the points above with Ms. Hughes. She asserts that she did, but she does not have any notes or emails to support this contention.

[72] Despite this gap in the evidence, I am satisfied that a trial is not necessary to decide the issue of whether Ms. Hughes was negligent in respect of the alleged failure to advance the evidence Ms. Kanafani claims she suggested to Ms. Hughes should be put forward. I make this finding because, in my view, the evidence before me allows me to make a finding that Ms. Hughes did not cause any losses Ms. Kanafani may have suffered. It is apparent from Justice Scherr’s decision that much of the evidence she claims should have been before him did in fact consider, that she was given opportunities to advance additional evidence and arguments, and that in any event such evidence would not have changed the outcome.

[73] First, even on this motion, Ms. Kanafani has not provided cogent evidence in support of the three topics she claims Ms. Hughes should have put forward. For example, on the issue of emails, text messages and telephone messages, Ms. Kanafani has not included any such messages as exhibits to her affidavit evidence. Rather, she provides a long narrative interspersed with what appear to be copied and pasted portions of emails into her affidavit. Even if I were to accept that these texts and emails were in fact sent by Ms. Kanafani to Mr. Abdalla, it is hard to see how they support her argument that she had sent Omar to Egypt with her sister for the purpose of having Omar return to Canada with his paternal grandmother. What they show is that Ms. Kanafani and Mr. Abdalla had a very volatile relationship. From time to time, the topic of Omar’s return was mentioned but none of the evidence raises to the level of demonstrating that Omar was being kept in Egypt against his mother’s will throughout the time he was there.

[74] For example, Ms. Kanafani claims that in September of 2008 she constantly called Mr. Abdalla to request the return of her son. She claims that in response she received the following email from Mr. Abdalla in which notably he does not address Omar, but rather addresses Ms. Kanafani’s behavior. Set out below is the text from Ms. Kanafani’s affidavit followed by Mr. Abdalla’s response:

I started to lose my patience with him and was calling him nonstop requesting the return of my son. In around the end of September, 2008, I called him yelling and crying and begging him to bring my son back from Egypt. Also my friend Natalia was calling him and giving him hard time so he brings the child.

The respondent recorded my crying on his voice machine and sent them back to me via this email and he was asking me for divorce (the paper implies for divorce).

Do you know I really don’t like to have such kind of messages to myself for ever ?even if I will be in jail for the rest of my life ,like your closest friend Natalia threaten me today , Believe me Reem … Self dignity is more important not for me for anybody than food , than air …

I didn’t leave my country and come here to live as a free man to receive such crap every couple of month from you ….

I don’t wanna see you again , I don’t wanna hear your voice , I had enough from you ….

I don’t think we can live together …just keep the paper with you forever , but not me …., please again and agine , no more tricks to come to my place ..no more

….for anger management ..I think you really need to do that just for your sake of your self you are really a sick person

[75] There are some emails from November and December of 2008 in which Ms. Kanafani raises the issue of Omar’s return, but these make reference to the payment of tickets of the logistics of having Omar accompany one of Ms. Kanafani’s friends. They don’t rise to the level of suggesting that Omar had been held in Egypt against Ms. Kanafani’s will starting January 2008 when he was first taken there. In fact, Ms. Kanafani has not included any communications from around the time when Omar was taken to Egypt that supports her story that the intent was for Omar to be returned to Canada with his grandmother soon after he was taken to Egypt.

[76] Second, her claim that she repeatedly sought Omar’s return and that she feared Mr. Abdalla’s mother would harm Omar are in fact issues considered by Justice Scherr, and he made determinations of credibility including on the basis of emails originating from Ms. Kanafani herself that were contrary to these assertions:

The evidence supports the father’s position that the parties intended to leave the child indefinitely with the paternal grandmother in Egypt.

In an e-mail that the mother sent to Dina on 20 October 2008, the mother does not ask that the child be returned but writes:

… I feel I found someone to put my head on his shoulder … so wish me luck and I hope you will look after Omar pls let them be careful to him and I am soo scared that they loose him somewhere when they are out pls let them pay high attention Omar is very active so don’t let him play alone out okay …

The mother sent Dina an e-mail on 4 November 2008 where she viciously attacked the father’s character, but made no mention of the child’s returning to Canada,. This e-mail was attached as exhibit E to the mother’s affidavit of 26 November 2009.

In November of 2008, the mother did propose to have the child returned to Canada. The father did not agree with the plan at the time because the mother proposed to have the child first taken to Syria by a stranger to him. On 20 November 2008, in an e-mail to the father, the mother withdrew the request and wrote:

Anyway, forget about Omar I will not bother u with this anymore … I am think to travel to Syria I am very sick with this pregnancy.

[77] There is in fact specific evidence that Ms. Kanafani claims was not put forward on her behalf that Justice Scherr did in fact consider. For example, the washing machine issue was before Justice Scherr and he made a finding that it was not credible:

The mother argued that her family bringing the mini-washer to Egypt was proof that the paternal grandmother intended to bring the child to Canada, as the mini-washer was for the child. The evidence, and in particular the mother’s e-mail of 28 May 2008, was more consistent with the father’s position.

[78] He even considered Ms. Kanafani’s argument renewed by Ms. Kanafani in this proceeding that the emails had been fabricated:

I note at this point that the mother claimed that several of the e-mails produced had been altered by the father. The e-mails that she did admit to sending were more than sufficient to undermine her credibility, so it is unnecessary to review if the other e-mails (which were very consistent with the e-mails admitted to) were altered. I have not relied on the disputed e-mails.

[79] Third, following the trial decision as referred to above, Justice Scherr did consider a request by Ms. Kanafani to advance additional evidence. Justice Scherr refused this request. While the refusal was partially based on the fact that Ms. Kanafani had been represented by counsel at trial, he also addressed the nature of the evidence, and specifically made a finding that much of the additional evidence was inadmissible and self-serving.

[80] Finally, while Ms. Kanafani did commence an appeal of Justice Scherr’s order, she did not pursue the appeal. Given that many of the issues she now raises are issues that were before Justice Scherr, in many ways her claim is an impermissible collateral attack on the decision.

[81] To the extent that there may be evidence that was not before Justice Scherr about Ms. Kanafani’s desire to have Omar return to Canada, given the extensive evidence that was before Justice Scherr on that point and his findings relating to Ms. Kanafani’s credibility, it is hard to see how further evidence could have affected the outcome of the trial on jurisdiction.

[82] It is also worth noting that Justice Scherr’s decision only dealt with the issue of jurisdiction. It left the merits of the issue of custody to be decided by the court in Egypt. Ultimately, Omar did return to live with his mother in Toronto in 2012.

[83] Accordingly, I am satisfied that there is no genuine issue for trial in respect of whether Ms. Hughes’ conduct of the jurisdiction trial was the cause of any harm or damage suffered by Ms. Kanafani.

No negligence in representation of Ms. Kanafani in property dispute

[84] On this motion, Ms. Kanafani claims that Ms. Hughes was negligent in representing her in the property dispute. Her primary argument is that Ms. Kanafani had photographs that would establish that she and Mr. Abdalla were married.

[85] There is absolutely no merit to this aspect of the claim. Ms. Hughes did not represent Ms. Kanafani at the hearing of the motion for summary judgment. Ms. Kanafani had an opportunity to file evidence in advance of the motion and at the motion itself. If there was evidence that she believes could have led to a different outcome, it was entirely within her power to put that evidence forward.

[86] There is no basis for finding that a trial is necessary to determine this issue.

No other negligence

[87] Ms. Kanafani also argues that Ms. Hughes was negligent in failing to bring an application for spousal support on her behalf.

[88] There is no evidence that Ms. Hughes was instructed to bring such an application and that she agreed to do so. More significantly, Ms. Hughes’ retainer lasted from December 2009 to May 2010. There was nothing precluding Ms. Kanafani from initiating an application for support since that time and, accordingly, there is no basis for a finding that Ms. Hughes caused any damage to Ms. Kanafani since that time.

Conclusion

[89] I am satisfied that I can make a just and fair determination of this matter based on the evidence available on the motion and the submissions of Ms. Kanafani and counsel for Ms. Hughes.

[90] Accordingly, the motion for summary judgment is granted and the action is dismissed.

[91] If Ms. Hughes is seeking costs of this motion and action, I am prepared to receive submissions on her behalf no later than September 15, 2017, and Ms. Kanafani provide responding submissions by no later than September 25, 2017. Submissions on costs are to be no longer than three pages, excluding the costs outline.

FAVREAU J.

RELEASED: September 5, 2017