Court File and Parties

Court File No.: FS-16-213-00 Date: 2018 12 05 Superior Court of Justice - Ontario

Re: Alia Knifati, Applicant And: Rashad Hourie, Respondent

Before: Trimble, J

Counsel: L. Kumar, for the Applicant K. Gearin, for the Respondent

Heard: November 26, 2018

Endorsement

The Motion

[1] The Respondent Father brings this motion for a declaration that the Ontario Court has no jurisdiction to decide the custody of the litigant’s child, Leen Hourie, (DOB stated given variously as March 1, 2010). Father wants this court to recognize and enforce a custody order from the court in Qatar requiring return of the child to the Father, in Qatar.

[2] All motions concerning custody and access of a child within the jurisdiction, where one parent is outside the jurisdiction, are a challenge. It is a challenge because success by one party removes the child from the jurisdiction in which the other parent lives, and denies that other parent immediate, regular, personal access to the child.

[3] This case is more complicated because:

a. The parents, Syrian nationals, live on opposite sides of the globe. b. Father lives and works in Qatar. c. He has remarried and has children in that marriage. The parties’ child would benefit by developing relationships with Father’s new family. d. Father loves his daughter and wants a relationship with her, although she is a relative stranger to him and he to her because of Mother’s conduct discussed below. e. Father says that he does not have the ability to travel to Canada to exercise access with the child unless he has a custody order. f. Father’s access by Skype has been difficult and in any event, access by Skype is by no means the preferable method of access. g. The child is on the autism scale, but is high functioning. She has an individualized education program at her school in Ontario, where she has been for 4 years. She is under the treatment of Dr. Franks, a local psychologist, who also provides recommendations with respect to her IEP. h. Most of Mother’s family now lives in Ontario, having achieved refugee status. Her brother has permanent status here. Mother’s parents also have refugee status here.

Facts

[4] The parties were married on 18 July 2008 in Syria. After their marriage, the couple moved to Qatar, where Father obtained employment. The couple’s only child, L.H., was born in Qatar. Presumably, she has Syrian and Qatari citizenship, although the latter citizenship is unclear.

[5] The couple separated on 1 September 2013. Father says that he had intended to separate for some time before that but delayed doing so because Mother was in poor psychological health, having displayed a history of violence, and having attempted to kill herself at least once. In order to make the separation easier, he decided to take the family to United Arab Emirates, where Mother’s parents lived, so that she could have a support system around her to deal with the shock of separation. Mother had no support system in Qatar. Father invented the story of taking the family on vacation to UAE to visit maternal grandparents. When they were there, Father told Mother of his desire to separate and divorce. He then returned to Qatar leaving Mother and the child in UAE. He would make arrangements to see the child, later.

[6] Mother agrees that they travelled to UAE to visit her parents. She was unaware of Father’s desire to divorce. She says that she was devastated by the Father’s announcement of his intention to divorce, and says that Father abandoned them in UAE. He provided nothing for support for her or the child.

[7] On September 30, 2013, Mother and her parents went to Texas where they applied for refugee status. It was denied on March 27, 2014. Mother did not advise Father that she was leaving UAE with the child, nor where she was going.

[8] While she was in Texas, Mother received word from the Father. Father had discovered where Mother was because of a Facebook posting she made which allowed him to locate her. He traveled to Texas with his new family to see the child. Mother says that her lawyer advised her that she should only provide Father with supervised access, lest he take the child and leave the country. Father says that he was never offered access. Mother is silent on whether she actually offered access.

[9] On November 18, 2013, Father obtained a divorce from the Syrian courts. On May 5, 2013, he obtained a custody order from the Syrian courts which gave him two hours a week access at a Syrian access facility. Mother was served with all of these proceedings but did not take part in them.

[10] At the beginning of January, 2015, Mother, the child, and Mother’s parents entered Canada where they claimed refugee status. Mother’s brother was already in Canada as a permanent resident. They applied for refugee status and by decision dated 17 April 2015, Mother, her parents, and the child were declared refugees.

[11] Mother commenced this Application on September 9, 2016, seeking spousal support, child support, and sole custody of the child. It was served by substituted service. Father filed his answer on September 12, 2017. By counterclaim, he sought sole custody of the child and costs. He also requested a declaration that the child’s habitual residence was Qatar, and that the Applicant should return the child to Qatar. He did not seek an order to the effect that this court had no jurisdiction to hear the application.

[12] On 30 April 2018, Father obtained an order from a court in Qatar which made him the sole guardian of the child, made Mother the custodial parent provided she returned to Qatar, and, in any event, ordered the Plaintiff Mother to return to Qatar. Father followed up this order with his notice of motion for this motion.

Positions of the Parties

Father

[13] Father says that, with the exception of the proposed access in Texas (which he says he was that he never offered), between September 2013 and July 2017, he had no access with the child. With the exception of tracking Mother down via a Facebook posting in late 2013 or early 2014, between September 2013 and September 2016 when he was served with Mother’s Ontario Application, he had no idea where Mother and the child were.

[14] Father’s position is that Mother abducted the child and surreptitiously took the child first to Texas then to Ontario. She did all of this without advising him of her and the child’s whereabouts.

[15] Under section 22(3) of The Children’s Law Reform Act, abduction does not alter the habitual or ordinary residence of the child unless there has been acquiescence or undue delay by Father. Father says that he always insisted on enforcing the Qatari order, and always interested in maintaining a relationship with the child. The Mother has consistently denied access. He never acquiesced in the relocation of the child outside of Qatar. He says that Qatar is the place of habitual residence of the family prior to separation, and today. Mother cannot unilaterally alter that by absconding with the child. Since the child is not habitually a resident in Ontario, Mother has the onus of establishing all six criteria under section 22(1)(b) of the CLRA. She cannot do so. The child was not physically present in Ontario at the commencement of the application for the order because Mother absconded with the child. Further, there is an extra provincial order in force.

Mother

[16] Mother says that she did not abduct the child. Rather, Father abandoned them in the UAE where neither she nor the child had any status or rights to stay. Since they were Syrian nationals, Mother says they had no right to return to Qatar, and if they did, they would be at the Father’s economic mercy. She could only stay in Qatar so long as Father continued to ensure that her status in Qatar was regularized. Because of the war in Syria, Mother says that she was virtually stateless. Therefore she looked for a country that would take them. She began with the United States, and, when that did not work out, she came to Canada.

[17] With much reticence, Mother eventually conceded that from 30 September 2013 to September, 2016, she provided Father with no information that would have enabled Father to contact her to demand or exercise his parental rights of access. Notwithstanding this, she says that Father took no steps to try and locate her. She led no evidence as to what steps Father could or ought to have taken to locate her. She points to the fact that he waited until April, 2018, almost 5 years after the separation, to get his order in Qatar.

[18] Mother says that she did not abduct the child, section 22(3) of the CLRA does not apply. Mother says that the child’s habitual residence is Ontario. Therefore this court has jurisdiction under section 22(1)(a) of the CLRA. In any event, since the child is physically in Ontario and the child will suffer serious harm if she is returned to her Father, under section 23 of the CLRA, the court does not need to have recourse to section 22 of the CLRA. Even if one applies section 22(1)(b), all of the criteria are met for this court to exercise jurisdiction.

A Problem of Evidence

[19] Mother brings a motion to strike several affidavits filed on behalf of Father on the grounds that they are hearsay. While many of the impugned affidavits are hearsay, the problem of hearsay is not limited to those affidavits or to Father’s evidence. Both parties rely on a great deal of hearsay. The hearsay concerns controverted issues.

[20] In addition, the parties both argue Qatari law (and perhaps Syrian and UAE law), without properly proving foreign law. Both lawyers agreed that foreign law is a fact to be proved in the domestic court yet neither provided an affidavit from anyone with the qualifications to prove Qatari (or Syrian or UAE) law. Mother attaches to her book of authorities an article from a website called “International Family Law Firm” written by a New York lawyer.

[21] Further, each of the parties attach to various affidavits reports from various doctors, psychologists, teachers, and therapists, and referred me to those reports as if they were evidence. They are not. They only become evidence on this motion if there is an affidavit by the report’s author, at minimum, attesting to the truth of the report and attached the author’s C. V. so the court can assess the author’s qualifications to express the opinions proffered. None of the reports referred to meet this criteria. With one exception, the parties do not accept the opinions of the report writers. I accept Dr. Franks’ report since both parties rely on it and concede her expertise.

Decision

[22] For the reasons below, Father’s motion is dismissed.

Discussion

Habitual Residence

[23] Before the court can enter into any discussion under section 22(1), the court must first, decide “habitual residence” under section 22(2): see Riley v. Wildhaber, 2011 ONSC 3456 (S.C.).

[24] I conclude that the child’s habitual residence is Qatar.

[25] “Habitual residence” is defined in section 22(2) of the CLRA. Any inquiry into the jurisdiction of this Court is governed by sections 22, 23, 25, 41 and 42 of the CLRA. Those sections must be interpreted in light of section 19, which reads:

The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario. R.S.O. 1990, c. C.12, s. 19.

[26] Under section 22(2) of the CLRA, a child is defined as being habitually resident in the place where he or she resided a) with both parties, b) where parties are living apart, where the child lived with one parent under separation agreement, or with consent (implied or express) or acquiescence of the other parent, or under an order of the court, or c) where the child is with one person for a significant period of time.

[27] A parent may not remove the child from one jurisdiction in order to establish the status quo in another jurisdiction: see E.H. v. M. M. 2014 ONSC 7409 (S.C.). This is forum shopping, and should be avoided. Ontario courts should not actively or passively support or encourage this activity.

[28] Father says that Mother has abducted the child. I agree. Section 22(3) provides that 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.

[29] Mother argues that Father acquiesced in the creation of a new habitual residence. Further, she says that he failed to take any steps, such as bringing process, to determine the issues of access and custody.

[30] While Father may have abandoned Mother and the child at Mother’s parent’s residence in UAE, initially, there is no evidence Father never abandoned the desire to have access to the child or surrendered any parental or custodial rights. Thereafter, Mother abducted the child, taking her first to the US, then (not achieving refugee status there), to Ontario. This was all done surreptitiously. She never provided Father with information as to her or the child’s whereabouts. She never offered Father telephone or Skype access. By mistake she made a Facebook posting that revealed where she was. Father demanded access and traveled to Texas. There is no evidence that he was offered access. The next time Mother gave Father any information about her and the child’s location was when she served her Ontario Application.

Should the Ontario Court Exercise Jurisdiction?

[31] Under section 22(1)(b) of the CLRA, in order to succeed in having the court exercise jurisdiction, Mother must establish that all of the six criteria in that sub-sub section are met.

[32] I conclude that Mother has met her burden. I address each of the criteria as follows:

1. The child is physically present in Ontario at the commencement of the application for the order. This is a given.
2. Substantial evidence concerning the best interests of the child is available in Ontario. The child has been here for four years, attends school here, and receives treatment and counselling for her autism here. I conclude that there is substantial evidence concerning her best interest, in Ontario.
3. 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. This criterion speaks of another proceeding pending using the present tense. There is no such application currently pending. The only current proceeding is this proceeding in Ontario.
4. No extra provincial order in respect of custody of or access to the child has been recognized by a court in Ontario. I conclude that Mother has satisfied this requirement. I say this for a number of reasons: a. In this case there are orders from Syria and Qatar addressing custody and access. In Syria, Father obtained an order dated 12 May 2013 that provided Father with access for two hours a week at a specified place. He also obtained an order dated 18 November 2013 divorcing the parties. There is no Syrian Custody order. b. Father obtained an order from the Qatari courts dated 30 April 2018 which applies Sharia law, and orders that Father is the child’s guardian, Mother has custody while she is in Qatar, and orders that Mother is ordered to return the child to Father. c. None of the foreign orders have yet been recognized by the Court in Ontario. d. Father has orders that appear to conflict. It appears that when he did not get the order he wanted from the Syrian Court, once he found mother and could serve her, and after he was served with the Ontario Application in which Mother sought custody, Father obtained a more favourable order from the Qatari Court. In other words, he forum shopped and now only seeks to enforce the order he prefers. This activity is exactly the sort of behavior that section 19 of the CLRA says should be discouraged. As a matter of public policy, I cannot permit the Father to benefit from apparent forum shopping. e. I asked the parties to comment on and provide me with law with respect to section 22(1)(b)(iv). Neither had any authority although both argued its interpretation.
5. The child is a real and substantial connection with Ontario. For the same reasons that apply to criteria 2, above, I find that a child has a real and substantial connection with Ontario.
6. On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. Notwithstanding that the child’s place of habitual residence is Qatar, because of the child’s presence in Ontario her medical treatment here, her education here, and because those who assess and recommend with respect to her autism are here, on the balance of convenience it is appropriate for Ontario to exercise jurisdiction.

Attornment

[33] Mother argues Father’s attorned to the jurisdiction and cannot now challenge the jurisdiction of the court. In other words, attornment is fatal to his motion. She relied on two non-family civil cases: Wolfe v. Pickar, 2011 ONCA 347 and M.J. Jones Inc. v. Kingsway Gen, Ins. Co. (2004), 70 O.R. (3d) 68 (C.A.).

[34] These cases have no application.

[35] The CLRA does not refer to attornment or its role in a jurisdictional analysis under the CLRA. At best, attornment could be considered as a factor under section 22(1)(b) or section 25. Attornment is not dispositive of the jurisdiction question: see Murray v. Ceruti, 2014 ONCA 679, at para. 38 to 41. Further, it is an error in law to find that attornment is crucial to whether the court had jurisdiction with respect to custody and access claim: see E. (H.) v. M. (M.), 2015 ONCA 813.

Serious Harm to the Child

[36] Mother invites me to find that there is or will be, on a balance of probabilities, serious harm to the child if the child is returned to Father, and that I should rely on s. 23 of the CLRA and find jurisdiction. Given my findings above, I do not need to address this. Had I needed to, however, I would have rejected this argument. There is no reliable evidence before the court aside from Mother’s broad, sweeping statements, with respect to any danger to the child if she is returned to Father, other than that attendant on relocating.

Recognizing the Qatar Order

[37] Father asks that I recognize and enforce the Qatari order in Ontario.

[38] Section 41 of the CLRA says:

1. Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. R.S.O. 1990, c. C.12, s. 41 (1).

Effect of recognition of order

2. An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such. R.S.O. 1990, c. C.12, s. 41 (2).

Conflicting orders

3. A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. R.S.O. 1990, c. C.12, s. 41 (3).

Further orders

4. A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order. R.S.O. 1990, c. C.12, s. 41 (4).

[39] In other words, I must recognize the extra-provincial order unless I find that one of the 5 listed conditions in section 41(1) exists. The onus is on the Father to show that the foreign order(s) comply with section 41.

[40] I decline to recognize and enforce the Qatari order for the following reasons:

a. As indicated above, Father has two custody orders that appear to conflict. It appears that when he did not get the order he wanted from the Syrian Court, once he found mother and could serve her, and after he was served with Mother’s Ontario Application seeking custody, Father obtained a more favorable order from the Qatari Court which he now seeks to enforce in Ontario. In other words he forum shopped, and now only seeks to enforce the order he prefers. This activity is directly contrary to the principles set out in section 19 of the CLRA. As a matter of public policy, I cannot permit the Father to benefit from apparent forum shopping. b. I cannot say whether Syrian or Qatari law “did not require the extra provincial tribunal to have regard for the best interests of the child”: see section 41(1)(c). Father bears the onus to prove that the criteria in section 41(1) do not apply. In Ontario, the “best interest of the child” is defined in section 24(2). He led no evidence as to what the Syrian or Qatari Courts were mandated to do. He merely said "Here is a Qatari order; enforce it." He said much about how safe Qatar is, and how sending the child there would not cause the child harm. Most of this was hearsay, and inadmissible. In any event, that is not the question under section 41. c. Section 41(3) says that where there are two orders that meet the criteria of subsection (1) I can enforce the one that is in most accord with the best interests of the Child. For the same reasons as above, I cannot conclude which of the two extra-provincial order best accords with the best interest of the child as defined in section 24(2). Father failed to meet his onus in this respect, as well.

Miscellaneous

[41] Father says that he needs a custodial order from the Ontario Court. He says that he cannot obtain a visa or other permission to come to Canada from Qatar unless he has a custodial order. This is another of those examples where hearsay is provided to the court instead of the appropriate evidence. There is no proper evidence before the Court, not even a letter from the Governments stating this restriction, on which the Court can act.

Costs

[42] I will address the issue of costs in writing. Submissions are limited to three double spaced, typewritten pages, excluding Bills of Costs and cases. Mother shall serve and fill her submissions by 4:00 p.m., 21 December 2018 and Father, his, by 4:00 p.m. 11 January 2019.

Trimble J. Date: December 05, 2018