Court File and Parties
COURT FILE NO.: FS-19-11498
DATE: 20190729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAZEN GELIEDAN Applicant
– and –
ABBIR RAWDAH Respondent
Counsel: Farrah Hudani, for the Applicant No one appearing for the Respondent
HEARD: July 26, 2019
BEFORE: M. D. FAIETA j.
REASONS FOR DECISION
INTRODUCTION
[1] In the late afternoon and into the early evening of Friday, July 26, 2019, I heard and considered the Applicant’s motion made without notice to the Respondent. I granted the temporary relief sought and these are my reasons for decision.
[2] At its core, this motion requires this court to protect the best interests of a six-year girl, Malak Geliedan. Malak is a citizen of the United Kingdom. Her mother, the Respondent, is a Canadian citizen. The Respondent was born in Canada and moved to England when she was about three years old. The Applicant, Malak’s father, is a citizen of both Saudi Arabia and the United Kingdom. In late 2012, Malak’s parents began living together in London, England. Malak was born in June 2013 and her parents separated a few months later. In September, 2013 a court in England prohibited the Respondent from removing Malak from England and Wales. In November 2015, a court in England granted custody of Malak to her mother with her father, the Applicant, being ordered to have access to Malak three times each week. The court also ordered that Malak could not be removed from England without a court order or the consent of both parents. In November 2015 the Applicant moved to Dubai in the United Arab Emirates. In April, 2018, the Respondent and Malak moved to Dubai where Malak and her parents then lived together. In March, 2019 the Applicant moved out of his apartment. On May 30, 2019, the Respondent took Malak’s passport from the Applicant’s apartment. Within a week, the Respondent took Malak to Lebanon. By about mid-June, 2019 the Respondent travelled with Malak to Toronto where the Respondent has family.
[3] The Applicant seeks an expedited motion date for the return of Malak to her habitual residence. He contends that Dubai is Malak’s habitual residence. On the grounds that the Respondent is a safety risk and a flight risk, the Applicant father seeks a temporary Order:
(a) Directing that the Respondent mother:
a. Not remove their daughter, Malak, from the Greater Toronto Area without a court Order;
b. Deposit Malak’s passport with the Applicant’s counsel process server who serves her with this Order, who will then immediately deliver it to the Applicant’s counsel’s office for safe keeping;
(b) Directing the Toronto Police, the Ontario Provincial Police, the RCMP, Canada Border Services Agency and Passport Canada to assist in the enforcement of this Order.
BACKGROUND
[4] The affidavit of Denise Dragani, sworn July 26, 2019, states that she is a legal assistant for Ms. Hudani’s law firm. She states that the Respondent mother sent a message on July 26, 2019 which states that “Malak wishes to live in Lebanon. Is this our middle ground?”. She states that the Applicant father is significantly concerned that the Respondent will try to remove Malak from Toronto to Lebanon this weekend.
[5] The Applicant’s affidavit, sworn July 26, 2019, and appended to Ms. Dragani’s affidavit as an exhibit, and is the source for the balance of the evidence described below.
[6] On September 13, 2013, the Applicant obtained, without notice to the Respondent, a temporary “Prohibited Steps Order” (“PSO”) under section 8 of the Children Act 1989 (U.K.), 1989, c. 41, that temporarily prohibited the Respondent from removing Malak from England and Wales because the Respondent mother had exhibited unusual erratic behavior and had threatened to abscond with Malak to Canada or Lebanon.
[7] In November, 2013 the Applicant moved out of the matrimonial home. He continued to pay for the Respondent’s accommodation and support for Malak.
[8] The Applicant states that the Respondent relies on an assessment written in March 2014 by a social worker on behalf of both parties in relation to the Applicant’s claim for shared residence. The report, in part, that:
The relationship between Mazen and Abir is complicated. Both commented that they would like to reunite but both stated that they have no trust for one another. Both spoke about their concern about the other’s mental state. Abir and Mazen both commented that they are concerned about each other’s temper.
Direct observations and the account provided by others who have met Abir, such as a nurse at the Portland Clinic, a social worker from Westminster Children Services, a cleaner who worked for Abir and the present landlord all reflect the concern which Abir’s behavior provokes.
The enquiries undertaken have lead me to share the concerns expressed by Mazen, his family and others, in respect of Abir’s erratic behavior and to be concerned about the potentially damaging effect to Malak, especially in the future. The level of concern is heightened by Abir’s apparent lack of insight into the effect that her inability to plan ahead, consider her action and reflect, is likely to effect Malak’s stability and safety and ultimately her overall development.
[9] On November 25, 2015, a Child Arrangements and Prohibited Steps Order (the “2015 UK Order”), was issued on consent by the Family Court in England. Amongst other things it provides that:
(a) The Respondent shall Malak available for parenting time with the father three days each week;
(b) Malak is habitually resident in the jurisdiction of England and Wales;
(c) Neither party has made an application for a passport for Malak, nor shall they do so without notice to the other;
(d) Neither party shall remove Malak from the jurisdiction of England and Wales without the written agreement of the other or order of the court;
(e) The passports of the parties shall be held by their respective solicitors until agreement in writing between the parties that they may be released or order of the court; and
(f) In the event that either party’s passport is released in order to allow that party to travel, the travelling party’s passport should not be released until the solicitors holding the passport have received confirmation from the other party’s solicitors that the child is in the care of the other party who is not travelling. The child must remain in the care of the other party who is not travelling for the duration of the time that the travelling party is out of the jurisdiction of England and Wales.
[10] In November 2015, the Applicant began to “live more substantially” in Dubai rather than London although he took several extended trips and spent long periods in London in order to be with Malak.
[11] The relationship between the parties improved after November 2015 as the Applicant and his family provided more financial support to the Respondent than was required by a Final Order issued by the Family Court on November 15, 2016. A copy of the Final Order was not provided to the court by the Applicant.
[12] The Respondent moved with Malak to Dubai in April, 2018. The Applicant, the Respondent and Malak lived together in the Applicant’s luxury rental apartment. However, the parties continued to live separate and apart. The Applicant states that they lived together so that they could co-parent Malak.
[13] Malak attended a private school in Dubai from April, 2018 until July, 2018.
[14] In March, 2019 the Applicant father moved to a separate apartment.
[15] Malak continued to attend school in Dubai from September 2018 until May 29, 2019.
[16] The Applicant states that in the past year, while the Respondent lived with him, police were called to his home three times because of the Respondent’s hysterical behavior.
Malak’s Abduction from Dubai to Lebanon in May or June 2019 and Subsequent Travel to Canada in June 2019
[17] The Applicant states that, on May 30, 2019, the Respondent broke into his apartment, took Malak’s passport and absconded with Malak to Lebanon. He states he learned of these events from his mother after a telephone call made by the Respondent to the Applicant’s mother on June 4, 2019.
[18] The Applicant states that the Respondent has sent numerous messages to him and his family since Malak’s abduction:
- June 4, 2019 – “Malak is happy here”;
- June 7, 2019 – The Respondent mother changed her WhatsApp profile picture to one of Malak wearing a Lebanese headdress while holding a machine gun;
- June 7, 2019 – a voice mail message where the Respondent was teaching Malak a Saudi Arabian song that describes a person feeling miserable and crying after he lost his love;
- June 7, 2019 – a second voice mail message in which the Respondent was interrogating Malak:
- Mother: … Do you want to go to Dubai? Malak: No
- Mother: Do you want to see Daddy? Malak: Delete this.
- June 16, 20 and 23, 2019 – the Respondent mother sent text messages to the Applicant’s mother asking for money in order to take Malak to the dentist. It was at this point that the Applicant became aware of the address that she was living in Toronto;
- June 23, 2019 – the Respondent sent a message asking the Applicant’s mother to ship her possessions from Dubai. She stated “We need our things from Dubai. Tell Mazen to ship them please. It’s my things. Not his. And Malak wants her stuff. She’s been asking for them;”
- July 7, 2019 – the Respondent left a voicemail for Ms. Hudani’s law firm in an attempt to retain the firm. As a result of a conflict check, a legal assistant contacted the Respondent to advise her that the form could not assist her due to a conflict;
- July 7, 2019 – the Respondent sent a text message to the Applicant’s mother: “But I will however think about moving to Lebanon. Because it’s not a Muslim country. And Mazen can come and go from Lebanon. To Saudi. Which is better for you. What is your son doing in Dubai. Other than being dirty. God forbid he gets a disease. Anytime he wants to visit he can. In Lebanon. 2 hours flight from Saudi;
- July 12, 2019 – the Respondent sent the following messages on WhatsApp to the Applicant’s father:
“I know that you are playing a game right now. And honestly you shouldn’t be. Because I am capable of taking care of Malak. I mean why can’t you get this???? I do however want to give you and your family one more try to figure out what can happen for Malaks best of best interests. I didn’t go to Dubai for gold!! I went to Dubai for Malak to have a father!!
Be sure enough Mazen proved that he will never be the father I longed for him to be. And although he’s not that. It doesn’t mean it’s best for Malak to not have him around at all. But honestly I’m not even sure if that’s right. Because according to new studies. It’s actually better for children not to have an inconsistent relationship with their fathers. You either in or out. And frankly, as of now you are all out.
And I’m still better than you for the most part. You decided our faith was to be for Malak to live in Saudi and I would come and visit. That was your cruel idea. I can’t believe I haven’t just deleted you already. But again I do what’s best for Malak. Malak will be starting school here in September in a very good school. Hamdilla. So if you want to suggest otherwise. It needs to be spoken about now. London is an option. I will explore, it’s close to you and Mazen can come see her anytime he wants. I’m sorry LEBANON DUBAI SAUDI ARABIA are never going to happen ever again. It’s not safe for me. And no matter what letter you sign. What contract you agree to in these countries it doesn’t hold any weight. So to make a long story short. If by September we haven’t come up with a new agreement. Malak is staying here with my family in my home. And that’s that and honestly this is most likely the best opportunity we have. But because I am a human being I am offering you a chance to come to me with peace. Take it or leave it. But I’m not playing a game here. London or Canada those are the options. Look at the leaders wife of Dubai. She’s a princess and has left to London for her safety. So let’s stop pretending I was safe on your grounds. I wasn’t because your mindset was evil. And that’s why god let me leave the hell you brought upon me. So now these are the options. I’m not leaving the west.”
- July 24, 2019 - the Applicant states that his father received what appears to be a text message from a lawyer in Qatar seeking to “negotiate” with him about Malak. The message states:
“Hello sir! I am sorry to text you at this time. However, I need to contact you regarding the issue of your daughter Malak. My name is rafik ghraizi, I am a Lebanese lawyer. Abby contacted me regarding this issue. And I’ve informed her that this issue shall be settled amicably for the welfare of the daughter. I am currently at doha, you can reach me at …”
- July 26, 2019 - that the Respondent sent what appears to be a text message to someone who was not identified that states “Malak wishes to live in Lebanon. Is this our middle ground?” [Emphasis added]
[19] The Applicant states that he is worried about Malak’s safety and that the Respondent may abscond again to Lebanon with Malak. He states that if Malak return to Lebanon he will be left without any options to see his daughter or have her returned to Dubai which the Applicant submits is Malak’s habitual residence prior to her abduction. He states that Malak has never been habitually resident in Ontario. She had never visited Ontario before her removal from Dubai in May or June,2019. He states that Malak’s school year begins on September 1, 2019 and that he wants to her returned to Dubai before then.
ANALYSIS
[20] At the outset of the hearing of the Applicants motion, I raised the question of the jurisdiction of this court to make the order sought. The Notice of Motion does not describe the statutory or other authority for the relief that the Applicant seeks. Further the Applicant did not file a Factum outlining this court’s authority to make the order sought nor did he initially provide any case law in support of his position.
[21] After a lengthy break, counsel provided me with one case in support of the Applicant’s position and advised that the authority to make the order sought is found in sections 22 and 25 of the Children’s Law Reform Act, R.S.O. 1990. c. C.12. (“CLRA”).
[22] Section 22 of the CLRA is inapplicable as there is no application for custody or access has been made in Ontario in respect of Malak. In any event, the jurisdictional requirements of s. 22(1)(a) or (b) are not satisfied. Subsection 22(1)(a) is not satisfied given that Malak is not habitually resident in Ontario within the meaning of s. 22(2) of the CLRA as she has been in Ontario about six weeks without the consent of the Applicant. Section 22(1)(b) is not satisfied given that there is an extra-provincial order, made by a court in England, in respect of custody and access to Malak.
[23] Section 25 of the CLRA is inapplicable as this court is not declining jurisdiction as none exists to make an order for the reasons described.
[24] The Applicant relies on Bolla v. Swart, 2017 ONSC 1488. In that case, the parties were married, lived and then separated in Botswana. The father commenced divorce proceedings in Botswana seeking custody of their two children. The mother responded with her own claim for custody. Although a court in Botswana had not made a custody order, it had ordered that the children not be removed. The mother moved to Ontario with their two children. After her arrival, the mother brought an application before this court for custody of the two children. Justice Harvison-Young, as she then was, determined that the issue of jurisdiction of this court to grant the custody order sought by the mother was governed by the application of s. 23 of the CLRA. The mother’s application was dismissed on the basis that she had not established that there was any risk that the child would suffer serious harm within the meaning of section 23. The children were ordered to be returned to their habitual residence in Botswana within 30 days.
[25] Bolla is distinguishable and of no assistance. Unlike Bolla, the Applicant has not filed an Application in this court for custody or any other relief. Unlike Bolla, there is a foreign custody order in place. In this case, the Applicant seeks an order to prevent the removal of Malak from the Greater Toronto Area in support of his anticipated motion for an order requiring Malak to be returned to Dubai.
[26] After a further break, counsel referred me to an Order issued by Justice R.P. Kaufman in Saikhom v. Saikhom, Court File No. FC-18-56423, dated June 18, 2018, which granted much of the relief sought by the Applicant in this case. An Endorsement or any other explanation of the background facts and legal basis for the issuance of the Order was not provided other than a Costs Endorsement of Justice McGee, dated June 25, 2018, which not surprisingly does not provide much detail regarding the circumstances that gave rise to Justice Kaufman’s Order. More helpful was counsel’s reference to section 40 of the CLRA as the suggested legal basis for making the temporary order sought by the Applicant.
[27] Section 40 of the CLRA provides the court with several options when it is satisfied that a child has been wrongfully removed to Ontario: Wang v. Lin, 2013 ONCA 33.
[28] Section 40 of the CLRA states:
Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or
(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,
may do any one or more of the following:
Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.
Stay the application subject to,
i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
ii. such other conditions as the court considers appropriate.
- Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
[29] Section 40 of the CLRA dovetails with the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention”), which provides a process, between signatory countries, for the return of an abducted child to that child’s country of habitual residence. In 1982, the Hague Convention was adopted in Ontario as a schedule to section 46 of the CLRA: See Nicholas Bala and Mary Jo Maur, The Hague Convention on Child Abduction: A Canadian Primer, 2014 33 CFLQ 267.
[30] Although Canada and the United Kingdom are signatories to the Hague Convention, neither the United Arab Emirates nor Lebanon are signatories. In any event, the exercise of authority under section 40 of the CLRA is informed by the purpose of the Hague Convention which has been described as follows:
Although international child abduction is not a new problem, the incidence of such abductions continue to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in the divorce rate. International child abductions have serious consequences for both the child and the left-behind parent. The child is removed, not only from contact with the other parent, but also from his or her home environment and transplanted to a culture with which he or she may have had no prior ties. International abductors move the child to another State with a different legal system, social structure, culture and, often, language. These differences, plus the physical distance generally involved, can make locating, recovering and returning internationally abducted children complex and problematic.
The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction seeks to combat parental child abduction by providing a system of co-operation between Central Authorities and a rapid procedure for the return of the child to the country of the child’s habitual residence. …
The principal object of the Convention, aside from protecting rights of access, is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence. The Convention is based on a presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the interests of the child, and that the return of the child to the State of the habitual residence will promote his or her interests by vindicating the right of the child to have contact with both parents, by supporting continuity in the child's life, and by ensuring that any determination of the issue of custody or access is made by the most appropriate court having regard to the likely availability of relevant evidence. The principle of prompt return also serves as a deterrent to abductions and wrongful removals, and this is seen by the Convention to be in the interests of children generally. The return order is designed to restore the status quo which existed before the wrongful removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction. [See Outline, 1980 Hague Child Abduction Convention, Hague Conference on Private International Law, May 2014. https://assets.hcch.net/docs/e6a6a977-40c5-47b2-a380-b4ec3a0041a8.pdf Also see Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 SCR 398, at paras. 24-27.
[31] Although there is nothing in the Hague Convention that specifically provides for the issuance of a non-movement order, it appears that such authority is contemplated by the Hague Convention. A Guide to Good Practice under the Hague Convention prepared at the request of a Special Commission under the Hague Convention recommends that “at all stages of the proceedings the court should consider whether a need for protective measures exists to prevent the concealment or removal of the child from the jurisdiction of the court.”. One option is the issuance of a court order prohibiting the child’s removal from the jurisdiction, combined with a border alert: See Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part IV – Enforcement, Hague Conference on Private International Law 2010, pages 4-5. https://assets.hcch.net/upload/guide28enf-e.pdf
[32] Based on the evidence before me, I am satisfied that Malak has been wrongfully removed to Ontario given the recent unilateral decisions made by the Respondent to remove Malak from Dubai, where she lived for about one year with both parents, to Lebanon and then to Canada. The 2015 UK Order places obligations on the parties in respect of access as well as travel outside of England. While the parties agreed to remove Malak from England to Dubai, there is no evidence of an agreement between the parties, whether in writing or otherwise, for the Respondent to remove Malak to Lebanon or Canada. Similarly, there is no evidence that the access provisions of the 2015 UK Order have been varied by agreement or by court order. As a consequence, the Respondent’s action in removing Malak to Lebanon and subsequently Canada without the Applicant’s consent fails to comply with the above provisions. I make no finding regarding whether Malak’s habitual residence prior to her removal to Lebanon was the United Arab Emirates or England however I am satisfied for purposes of this motion that it was one or other.
[33] Given: 1) the Respondent’s behaviour; 2) there is a real risk that the Respondent may remove Malak to Lebanon; and 3) Lebanon is not a signatory to the Hague Convention, it is my view that it is in Malak’s best interests, particularly to ensure her safety and stability, to grant the temporary order sought by the Applicant pursuant to s. 40(a) of the CLRA.
CONCLUSIONS
[34] I grant the temporary relief sought by the Applicant. The Applicant’s motion to continue this temporary relief shall be heard on August 1, 2019 on notice to the Respondent. The Applicant shall deliver a copy of his Notion of Motion dated July 26, 2019, the support affidavits and these Reasons for Decision to the Respondent by electronic or other means as soon as practicable and, in any event, by Noon on July 30, 2019. Costs of this motion are reserved to the judge who hears the Applicant’s motion to continue this Order.
Mr. Justice M. D. Faieta
Released: July 29, 2019
COURT FILE NO.: FS-19-11498
DATE: 20190729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAZEN GELIEDAN Applicant
– and –
ABBIR RAWDAH Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: July 29, 2019