Court File and Parties

COURT FILE NO.: 596/17 DATE: 20190403 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Saadeldin Moustafa, Applicant (Husband) AND Marwa Abdelhafiz Mohamed Afifi Elsayed, Respondent (Wife)

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Rachel Stephenson, for the Applicant Elizabeth T. French, for the Respondent

HEARD: March 19, 2019

Amended Endorsement

Corrected decision: The text of the original Endorsement was corrected on April 17, 2019 by removing the word “it” in the fourth sentence of paragraph 34 and replacing it with “not”, and by removing the word “has” in the sixth sentence of paragraph 42 and replacing it with “have”.

MINNEMA, J.

Issue

1This is a motion by the husband seeking to set aside a final consent order for custody made in this proceeding in favour of the wife, and to impose restrictions on her travelling with the children.

Basic Facts/Procedural History

2The parties married in Egypt in 2006. Their oldest child Sama was born in 2007. The three moved to Kingston, Ontario, in September of 2011 when the wife was accepted into a Ph.D. program in computing science at Queen’s University. Their second daughter Layan was born in 2012, and is a Canadian citizen by birth. In 2012 the husband also enrolled at Queen’s and he completed his Master’s degree in science in 2015. He subsequently was accepted into a Ph.D. program. In the summer of 2015, the family went to Egypt. The parties separated for about 7 months starting in the fall of 2015, shared cohabitation again in the spring of 2016, and have been physically apart since the start of that summer. While there is a dispute about the date of separation, there is no dispute that the children have remained in the primary care of the wife since June 24, 2016. The husband has not had direct access with Sama since April of 2017.

3The husband brought an application to this court in December of 2017. The prayers for relief included an order for joint custody and an order restricting the wife’s travel with the children. Regarding the latter, the husband at that time said he was “concerned” that the wife would return to Egypt upon the completion of her Ph.D. He also said she was scheduled to defend her Ph.D. in early 2018, and he was concerned that she would leave at her earliest opportunity and defend it from abroad. He gave various reasons why Egypt was not a safe place, especially for women. He also noted that for various reasons he feared for his own personal safety if he had to return to Egypt to see the children, one being a default judgment against him with a one year jail sentence. He summarized that he was “very concerned” that if the wife took the children to Egypt he would never see them again.

4The parties retained counsel. The husband brought an urgent motion for disclosure. That motion was heard by me on February 28, 2018 and dismissed.

5At the case conference on March 22, 2018, the parties entered into Minutes of Settlement. Both had counsel. Based on the Minutes, temporary orders were made including for supervised access with Layan at the Salvation Army Supervised Access Centre and, central to this motion, an order was made on a final basis for custody of the children to the wife.

6There was an obvious mistake in the Minutes of Settlement related to the interim section 7 expenses as it had the husband paying those to himself. While this was being addressed between counsel, a Notice of Change in Representation was served on April 9, 2018, indicating that the husband would be representing himself. The wife subsequently brought a motion on notice to correct that mistake, which was granted unopposed on April 26, 2018.

7On August 28, 2018, the husband obtained new counsel.

8On September 7, 2018, the wife and Sama were granted Canadian citizenship.

9On October 9, 2018 the husband’s counsel served this motion seeking the following relief:

1. A Temporary Order that the Respondent, Marwa Abdelhafiz Mohamed Afifi Elsayed, shall not remove the children Sama Moustafa, age 11 … and Layan Moustafa, age 5 … from Ontario without further order of this Court;
2. A Final Order that the Order dated March 22, 2018 be set aside pursuant to Rule 25(19) of the Family Law Rules;
3. Costs, and
4. Such further and other relief that counsel may suggest and this honourable Court deem just.

10As a preliminary matter, I cannot make the temporary order sought unless the final custody order is first set aside. Imposing incidents of custody would be a change to the final order which requires a Motion to Change and a finding that there has been a material change in circumstances: see subrules 15(2)(a) and 15(5) of the Family Law Rules, O. Reg. 114/99, and section 17(5) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

Rule 25(19)

11Per the Notice of Motion, the husband relies on Rule 25(19) which reads as follows:

25(19). The court may, on motion, change an order that,

(a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter what was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

12The parties agree that Rule 25(19) includes the authority to “set aside” an order: see Gray v. Gray, 2017 ONCA 100.

Matter Before the Court but Not Decided

13The husband made essentially two core arguments. One was that Rule 25(19)(c) grants the court authority to set aside its own order if it did not decide a matter that was before it. Specifically he argued that “although the Final Order was on consent, the Court still has the obligation to consider the children’s best interests” and that “[t]he children’s best interests were not fully explored prior to the Final custody Order being made.”

14Rule 25(19) is not intended to apply to cases of alleged legal errors; they are matters for the appellate court: see Gray v. Rizzi, 2011 ONCA 436. In arguing that the judge at the case conference failed to apply what the husband maintains is the proper test for making a consent custody order, he is alleging a legal error. I am therefore not prepared to consider this ground.

15I would add that Section 133 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) indicates “[n]o appeal lies without leave of the court to which the appeal is to be taken … from an order made with consent of the parties”. The husband in his first affidavit in support of this motion indicated that he intended to appeal the order. A year after the consent order was made he has still not brought a motion for leave.

Contract Law

16The husband’s second core argument was that where a court order is based on a consent, the court of the same level has the authority to set it aside on any ground that would invalidate a contract. While the framing within Rule 25(19) was unclear, the wife does not dispute the availability of this relief or the test. The proposition is well-established in law: see McCowan v. McCowan, [1995] O.J. No. 2245 (Ont.C.A.) at paragraph 19, Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 at paragraph 79, and Mohammed v. Mohammed, 2018 ONCJ 530 at paragraph 49. As noted in Rick v. Brandsema, 2009 SCC 10 at paragraph 64 (citing James G. McLeod), a consent judgment is not a judicial determination of a case on its merits but rather an agreement elevated to an order, and as such the basis for the order is the agreement not a judge’s finding of what is fair and reasonable in the circumstances.

17In his factum the husband suggests the following related to contract law:

The common-law with respect to contracts provides that the parties must be consensus ad item in their understanding of the terms of the contract in order for it to be valid. Generally, the Court considers the reasonable person’s understanding of the terms of the contract. Occasionally, however, a court’s equitable jurisdiction may be exercised to permit a subjective assessment of the circumstances surrounding the contract. In such cases, the existence and/or contents of the contract could be determined by a review of [a] party’s subjective belief, rather than the objective standard of the reasonable person.

18He goes on from there to make the following argument:

The Applicant did not know what he was agreeing to when he signed the Minutes of Settlement and therefore the contract between him and the Respondent is not valid. There was no “meeting of the minds” with respect to the issue of the children travelling. On an objective and subjective standard, a person may not understand that agreeing to a Final custody order would limit his/her ability to permit a child to travel. When considering the subjective elements involved in this case ie. language barrier, duress and inadequate legal advice, it is reasonable that the Applicant did not have a full appreciation of the consequences of a Final custody order.

19As noted in Ruffudeen-Coutts at paragraph 59, there is resistance to allowing a review of issues that the parties have represented to the court as resolved, as it is tantamount to giving a general licence to parties to give their consent and afterwards seek to undo the agreement because they do not like it.

20No authority was cited for the husband’s legal position. As noted in S.M. Waddams, The Law of Contract, 6th Ed. (Toronto: Canada Law Book Inc., 2010) at paragraph 141,

… one who signs a document is ordinarily held to have thereby manifested assent to its contents, even though he may not have read them or understood their meaning. This is not to say that in every case a signer is bound by the document he has signed. He may be relieved on the ground of unconscionability, or mistake, or on the ground that the true agreement of the parties is misstated. The point made here is that it is not what the signer inwardly intends but what he appears to a reasonable promisee to do that is relevant.

21Professor Waddams adds at paragraph 145,

The phrase “consensus ad item” though frequently appearing in the cases, must be used with caution, lest it should imply that the court should concern itself with the actual subjective state of mind of the parties. The objective principle of contract formation is not a mysterious or arbitrary rule but an inevitable result of the law’s attempt to protect reasonable expectations.

22In my view the law does not support the proposition put forward by the husband that equity permits the court to set aside a contract when it differs from what one party asserts was their subjective belief. However, that does not end the matter, as the husband refers to both the “objective and subjective standard”. I have therefore assessed all of the elements he has raised, namely language barrier, duress, and inadequate legal advice, to determine whether they still vitiate the contract when applying the correct objective standard.

Language Barrier

23The husband states in his affidavit:

English is not my first language and I struggle at times to understand the nuances of the language. I am able to understand but it takes me more time and effort. For example, in the PhD program I put in extra effort and time to complete my work. I did not have an interpreter at the Case Conference as I felt I could understand enough to get by but my ability to do so is certainly impeded during times of stress.

24The husband does not say that he lacks ability or that there was a procedural failure to accommodate him, only that he does not understand well enough to fully appreciate what he specifically agreed to here. However, I note the following. He had counsel prior to the issuing of his application (on December 18, 2017) through to the case conference, and he, not the wife, made the first custody claim. Prior to the case conference he had filed an application, swore a Form 35.1 affidavit, swore a Financial Statement, brought a motion and swore a supporting affidavit, and presumably filed a Case Conference Brief. At a minimum there was a full three months from when he issued his application until the case conference. He chose not to have an interpreter at the conference feeling he did not need one. The Minutes of Settlement were in writing, signed, and witnessed. In my view there is insufficient evidence to satisfy the court that the husband did not understand his agreement because of a language barrier.

Duress

25The husband says he was under duress to settle at the case conference. He asserts (1) there was very little time to consider his position, (2) his counsel did not advise him of the ramifications of agreeing to a final custody order, and (3) he was given an ultimatum and coerced into signing the Minutes of Settlement. I address the alleged shortcomings of his former lawyer under the next heading.

26A case conference is not like a motion or trial; the wife could not have insisted on an interim or final custody order, and court had no authority to impose one. There was no evidence to explain why the husband alleges he felt rushed.

27The husband’s allegations about duress are similarly vague. It is not clear whether the alleged duress came from wife, his own lawyer, or the court. The only reference in his affidavits that remotely relates to duress was the statement “I understood from my former lawyer that if I did not agree to a final Order for sole custody that the Respondent would not permit me to see my child, Layan.” He does not aver to the words used. If the wife indeed took that position, the husband’s remedy would have been a motion for access after the case conference, the usual process. Again, this was his application, and it does not follow that he would immediately capitulate upon the wife saying she did not agree. What is remarkable here is that the wife’s own answer served on the husband three weeks prior to the case conference indicated that, to the contrary, she too was seeking supervised access at the Salvation Army. I therefore fail to see a reasonable basis for the husband’s position that he was coerced into signing the final agreement for final custody in exchange for the temporary supervised access order.

28There was no evidence of an obvious power imbalance. Both parties had lawyers at the time. While it is true that the family came to Canada in large part to support the wife’s education, she has made many allegations of domestic abuse and violence by the husband, and the Children’s Aid Society had been involved. In October of 2016 a CAS worker authored a letter indicating that in September of 2015 the Society “verified risk of harm due to a pattern of emotional, financial escalating to physical violence by Saad [the husband] toward Marwa [the wife].”

29The husband has failed to explain who allegedly gave him an ultimatum and how he was allegedly coerced into signing the Minutes of Settlement. He has failed to satisfy me that he signed it under duress.

Inadequate Legal Advice/Lack of Understanding

30The husband asserts that he signed the Minutes of Settlement without fully understanding its effect as a result of “inadequate legal advice”. There was no evidence of what actually transpired between him and his former counsel or what was said. There was no indication that the lawyer has been made aware of this claim. Unlike in the Mohammed case, the previous lawyer was not a party to this motion, and did not provide any evidence.

31The wife in her affidavit argued that husband had waived solicitor/client privilege. The husband disagreed and refused to consent to his former counsel being cross-examined. An allegation of inadequate legal advice generally waives privilege: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada (3rd Ed.), (Markham: LexisNexis Canada Inc., 2009), paragraphs 14.130 and 14.133. However, nothing turns on it; there is no evidence for the wife to rebut.

32Without direct evidence supporting the allegation of inadequate legal advice, the husband takes the position that his lack of understanding can nonetheless be inferred from the simple fact that travel restrictions were omitted from the agreement when it is obvious that they should have been included. He makes four arguments along this line.

Pleadings

33The husband’s desire to limit the wife’s ability to travel with the children was clear from the application. According to him, the mistake is therefore obvious as the Minutes of Settlement do not match his pleadings. I fail to see the logical connection. Compromise is usual in family law cases. Partial settlements are encouraged to enable the parties to work on resolving the remaining issues. As noted in Ruffudeen-Coutts at paragraph 71, “family law practice and procedure encourages parties to come to an agreement on as many issues as possible”. The primary objective and duties in the Family Law Rules, O. Reg. 114/99 encourage settling issues “at an early stage”, and one purpose of a case conference is to settle issues that are not in dispute: see subrules 2(5)(a), 2(5)(c), and 17(4). It is not obvious that custody required a trial; at the time of the case conference the wife already had the children in her primary care for three months short of two years, and the father was having minimal access. Early settlement has the advantage of saving legal costs and reducing exposure to a future cost award.

Risks of Travelling to Egypt

34The husband makes the case that it would be risky for Canadians to travel to Egypt based in part on a Government of Canada travel advisory that the wife did not object to. Whether travel would be less dangerous for someone who was from Egypt, had previously lived in Egypt, and was visiting family in Egypt, was not explored. Certain regions appear to be more dangerous than others. This risk seems to be conceded by the wife, but in my view that does not point to an obvious need for travel restrictions. In the recent case of Gare v. El Hashar, 2018 ONSC 477, the wife sought travel restrictions to Egypt and the court was skeptical of her motives given that travel advisories had been in place for more than a decade yet she had permitted travel in the recent past (paragraphs 84 and 89). Similarly here, regardless of or despite those same travel advisories, the husband and wife travelled to Egypt with the children for the whole summer of 2015. There was no suggestion that the situation is worse now, or will get worse in the future.

35I comment about the future because there is still no evidence of a current plan by the wife to travel to Egypt. The main reason she is seeking to have this motion dismissed is that the husband’s request would restrict travel to other provinces and countries where there are no travel advisories, and her position at Queen’s requires travel for conferences and presentations. As a sign of good faith the wife indicated that she consents to an order that she notify the husband in advance of any travel outside of Canada and provide details. In my view the mere possibility that the wife might travel to Egypt at some time in the future does not lead to the conclusion that the agreement was flawed because it did not include travel restrictions.

Risk of the Wife Absconding to Egypt

36We turn now to what appears to be the main issue for the husband, namely his purported belief that the wife will leave with the children and never come back. The wife has given no indication of any intention to relocate to Egypt, to the contrary she has agreed that it is not in the children’s best interests to live there. Therefore the husband points to her employment circumstances and to the Hague Convention in support of his position that the travel restriction was overlooked.

37Regarding the wife’s education and employment, as already noted the husband initially indicated that he wanted a travel restriction because he was fearful that she would leave with the children immediately and defend her Ph.D. thesis from abroad. He did not bring an urgent motion. She did not leave. Rather she stayed, defended her thesis, found work, and obtained citizenship for herself and Sama. While the husband repeats that same alleged fear on this motion, his speculation is obviously less convincing now and even he recognizes that. In his factum he indicated “[t]his likelihood of return to Egypt is lessened by the fact that the Respondent has completed her PhD and is working on a contract basis with Queen’s University.”

38The husband alleged that the wife has a job waiting for her in Egypt. The basis for this was two documents in evidence relating to the nature of her past employment and educational arrangements that have been translated from Arabic. Neither party took issue with the translations. As background, the wife was employed at Ain Shams University in Cairo, Egypt, as an Assistant Lecturer, and when she came to Queen’s she obtained a study leave for 6 years (to September 9, 2017) without pay, although she received a scholarship for her expenses. Those six years have now passed. The first document was a letter from the Director General of the Higher Studies and Research Sector indicating that the University President agreed on April 4, 2018 to terminate the wife’s study leave, terminate her employment, and take legal action to recover the expenses, because she did not return to work on September 10, 2017. Final approval of the President’s agreement was required from other bodies (Faculty, Executive Committee for Scholarships, and Teaching Staff Affairs Committee). While there was no evidence of those final steps, the wife indicates that she was indeed terminated as indicated. This document does not assist the husband.

39The second document he produced was described as a newsletter from a Faculty of Computer and Information Sciences board meeting at Ain Shams University on February 19, 2019. It indicates that the wife applied to extend her academic vacation (likely the “study leave” from the previous document) but was rejected. This appears to confirm her termination. However, the newsletter goes on to say that she started “childcare leave” from September 10, 2017 to September 9, 2019. The husband suggests that, notwithstanding the contrary evidence about her termination, this means she still has a job she can go back to. The wife indicates that the childcare leave is separate from her termination, and that she only took advantage of it to postpone the requirement that she repay the scholarship expenses.

40While I share both counsel’s view that it is unclear what childcare leave in Egypt entails, the fact remains that the wife has not gone back to Ain Shams University. She defended her thesis in September of 2018 and graduated with her Ph.D. in November of 2018. She accepted employment as an Adjunct Teacher at Queen’s School of Computing for the term of September 2018 to April 30, 2019. She has since accepted a Post-Doctoral Fellowship with Queen’s University for one year commencing next month.

41The husband’s second argument was that Egypt has not signed on to the Hague Convention, and therefore, he will be not be able to avail himself of that legislation if the wife absconds with the children to that country. He added that at present he cannot go back to Egypt in person because of his legal problems there, although he is addressing those and that may only be short term. It is hard to see why his default should limit the wife. Regardless, in my view the mere fact that Egypt is outside of the Hague Convention is insufficient to establish that it would have been in the children’s best interest to impose the wide ranging travel restriction in the agreement: see Al Jarrah v. Ashmawi, 2017 ONCJ 218 at paragraph 74. Evidence would be required, beyond just the subjective fear of the husband, that the wife is a flight risk: Al Jarrah at paragraph 74, and Gare at paragraph 85.

42The reality is that the wife has had the children in her care for 2½ years since separation, the last year of which has been as the sole legal custodian pursuant to the impugned court order. Throughout these periods there have been no travel restrictions. If the husband was right about her focussed intention to abscond with the children, she could have left at any time. In particular she could have left in the five months after being served with this motion. With little else to go on, in an attempt to bolster his argument the husband has asserted that the wife has no “roots” in Canada. However, he conveniently ignores the fact that she and Sama have been living here for seven years, Layan for her whole life, and all three have Canadian citizens. Simply put, the evidence does not establish that the wife is a flight risk, and therefore it does not support the inference that the husband is asking the court to make that the agreement contains an obvious omission because it fails to include travel restrictions.

Risk of Female Genital Mutilation

43The husband asserts that the wife wanted to have female genital mutilation (“FGM”) performed on the girls by her family when they were in Egypt in 2015 and that it was only when he voiced his disagreement it was averted. He provided a notarized letter dated September 26, 2018, from Galal Helmi Abdulmutaleb, who he identifies as a friend of his, wherein Mr. Abdulmutaleb claims to have witnessed the disagreement. The husband’s counsellor in a letter dated August 15, 2018, indicates that the husband mentioned this concern to her and that he also told her that FGM is a “common practice” in Egypt.

44The husband has not provided any evidence to establish that this procedure is either legal in Egypt or a common practice there. The wife asserts to the contrary that it is illegal and that she has never heard of it being done. She adds that it is not a procedure supported by educated people, and she knows no one who has even considered it. As her counsel points out, if the wife truly had such a repulsive design and was determined to act on it, there would be no reason for her to travel to Egypt as it is illegal both here and there. The wife calls this allegation “very disturbing” and “beyond ludicrous”. She is clear in her evidence that she has never met a Mr. Abdulmutaleb, and indeed it is odd that a male friend of the father’s would be privy to such a private discussion between a husband and wife, had it occurred. The timing of this allegation is also very suspicious. If it were true, it would go to the very core of the wife’s ability to act as a custodial parent. Yet the husband and has only raised FGM in the context of restricting her travel and he did not oppose custody generally. Notably he did not raise it with the Children’s Aid Society or in his application.

45I find that the evidence before me does not establish FGM as a risk, and therefore it does not support the inference the husband is asking me to make that he did not understand the agreement because of the absence of travel restrictions.

Decision

46I am not prepared to set aside the final consent order, as in my view the husband has not met the onus for proving that the underlying Minutes of Settlement cannot stand as a valid contract. I would add that had he been successful in that regard, I would not have made the interim order he is seeking as the evidence does not support a finding that the travel restrictions sought are required in the children’s best interests. This motion is dismissed.

47Notwithstanding the above, on consent of the mother, the final order shall be varied by adding the following provisions:

1. The Respondent shall notify the Applicant in writing, no less than thirty (30) days in advance of the children’s travel outside of Canada. The Respondent shall provide the following information, in writing, to the Applicant no less than fourteen (14) days before the date of travel: (a) Method of transportation, including flight carrier(s), if any, as well as copies of all flight tickets, including copies of return flight tickets; (b) The destination(s) of travel and duration; (c) Contact information for the destination(s) so the Applicant may confirm accommodation for the children by telephone or email. The Respondent shall provide consent for any third party to confirm the children’s accommodations.

48If the parties wish to address me on costs I will accept written submissions as follows:

1. From the respondent served and filed within ten days from the release date of this decision of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.
2. From the applicant served and filed within ten days after he is served with the respondent’s submissions of no more than six pages, double spaced, in addition to any relevant offers and draft bills of costs.
3. If required, a reply from the respondent of no more than two pages double spaced served and filed within five days after she is served with the applicant’s submissions.
4. If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves.