COURT FILE NO.:FS-19-0001-00
DATE: 2019 08 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
VASMINE MAHMOUD HANI SHALABY
Adela Crossley, for the Applicant
Applicant
- and -
Daniel Simard, for the Respondent
HESHAM MAHMOUD ABDEL HALEEM NAFEI
Respondent
HEARD: May 24, 2019
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The Respondent Father Hesham Mahmoud Nafei brings a motion seeking access with his children, Hazem Hesham Nafei, born April 15, 2006, and Judy Hesham Nafei, born November 12, 2010. In particular, he seeks access during the summer in either Egypt or the United Arab Emirates (UAE), or in the alternative, in Niagara Falls in the U.S.A.
[2] The parties had earlier litigated the issue of access before me on March 7, 2019, which decision remained outstanding at the time this motion was argued. Anticipating the release of my first decision, which may have had an impact on this motion, the motion was argued but the parties were provided an opportunity to make supplementary submissions in writing after the release of my earlier decision. Only the Applicant Yasmine Mahmoud Hani Shalaby did so.
Background
[3] The parties are originally from Egypt. They moved to the UAE in or about June 2005 shortly after their marriage, where they started their family. In or around 2014, the parties decided to immigrate to Canada. It was decided that the children would live with the mother in Canada, and the father would maintain his dental practice in the UAE. The parties moved to Ontario in July 2016, as permanent residents, while the Respondent Father remained in the UAE to run his dentistry practice and to financially provide for his family. He travelled to Ontario regularly to spend time with his family and to maintain his permanent resident status.
[4] It is conceded by both parties that during the last years of the marriage, the children lived with their mother in Canada, and the children’s relationship with their father consisted of him working in the UAE and returning to Canada several times a year to visit with the family. The family also took many vacations together around the world. The Respondent Father and the children also maintained electronic communication.
[5] Following the parties’ separation, the parties signed a Separation Agreement whereby access by the father to the children was set out. It was anticipated that access would take place in Egypt or elsewhere if the Respondent Father chose to travel with the children during that time. Access in the summer was to be for at least 45 days. The Applicant Mother now seeks to set this Agreement aside.
[6] Pursuant to the Agreement, the Respondent Father exercised access to his children in Canada in the summer of 2018. His first access outside of Canada took place during the school Christmas break in 2018. The Applicant Mother and the Respondent Father made arrangements for the children to fly to Cairo, Egypt, accompanied by a friend of the Respondent Father. It was also agreed that the children would be delivered to the home of their maternal grandfather in Cairo, and that the Respondent Father was to pick up the children from this home that same day and start their vacation together.
[7] Unfortunately, things did not go well. The Respondent Father claimed that the children were not at their maternal grandfather’s home when he went to pick them up and claims that the Applicant Mother or her father withheld access. The Applicant Mother spoke to her father (the children’s maternal grandfather) who assured the Applicant Mother that the children were delivered to the Respondent Father the same day as agreed, and in fact he saw the Respondent Father himself in the car when the children got in.
[8] The Respondent Father contacted the Egyptian police that day, being December 19, 2018, and filed a claim against the Applicant Mother and the children’s paternal grandfather claiming they improperly withheld or kidnapped the children.
[9] The Applicant Mother indicated in her affidavit that the very morning after the Respondent Father accused her of withholding the children, he called her, and made her swear that she was not recording the call. He then told her that the children were with him, and he needed to sit down with the men in his family and discuss under Sharia Law (Islamic Law) their rights with respect to their financial affairs.
[10] The Applicant Mother indicates that she told her father about the conversation and her father contacted the Respondent Father directly, who threatened the maternal grandfather and the maternal uncle. The Applicant Mother’s family in turn went to the police and filed a report regarding the false allegations of kidnapping made by the Respondent Father and threats of violence against the paternal grandfather and his son. This report was made on December 19, 2018.
[11] The Applicant Mother has also filed for custody of her children through the family courts in Egypt and filed for a non-removal order Egypt in attempt to prevent the Respondent Father from taking the children out of Egypt without her.
[12] From December 19, 2018 until December 28, 2019, neither party claims to have known the whereabouts of the children and blame the other for being deceptive. The maternal grandfather maintains that the children were picked up by the Respondent Father on December 19, 2018. The Respondent Father has maintained that the children not dropped off with him until December 28, 2019, by the maternal grandfather, and they spent the remainder of the holiday together. The Respondent Father states that two different people witnessed the maternal grandfather dropping off the children, and they both made statements to that effect to the Egyptian authorities. The children were returned to the Applicant Mother in Canada on January 1, 2019, as originally scheduled.
[13] The Applicant Mother states that in Egypt, her father defended the allegations made by the Respondent Father that the paternal grandfather falsely reported a kidnapping. The Applicant Mother has provided a translated copy of the ruling from the Elramel First District Court in Egypt wherein the charge against the maternal grandfather of falsely reporting a crime was dismissed. The claim for compensation was referred to a specialized civil court.
[14] As a result of the disappearance of the children, the Applicant Mother commenced these proceedings in early January 2019 and obtained an initial order on an ex parte basis for, amongst other things, custody of the children. This ex parte order was eventually reviewed by me on March 7, 2019. My decision was released on June 5, 2019.
[15] Ongoing access by the Respondent Father to the children is difficult for a number of reasons.
a) Firstly, following the disappearance of the children in December 2018, the mother spoke to the Peel Regional Police and in the course of these discussions disclosed to them that she was the victim of physical abuse during the marriage. The police then put out a warrant for the arrest of the Respondent Father, which he was advised would be enforced by the Canadian Border Agency. Accordingly, when the Respondent Father enters Canada, he may be arrested, and he fears he will not be able to leave the country. This is particularly troubling to him as he earns his livelihood in the UAE and has done so for most of the marriage. In addition, as a condition of his release, he suspects he will be prohibited from contacting the Applicant Mother or perhaps the children;
b) Secondly, the Applicant Mother states that the Respondent Father commenced litigation in Egypt against her. He obtained a travel ban which would prevent her from leaving the country with their children. She maintains that he provided the Egyptian court with false affidavits of service stating that she was served with these documents when she was not; and
c) Neither Egypt nor the UAE are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, 1343 U.N.T.S. 89. Accordingly, if the children are permitted to travel to these countries, and the father refused to return them, the Applicant Mother would have no recourse in Canada, but be forced to return to Egypt and may not be able to leave.
[16] In support of this motion, the Respondent Father relies on a Separation Agreement dated August 14, 2018, which specifically contemplates the access he is seeking. He disputes that it was signed under duress and in fact, the Applicant Wife was represented by counsel throughout the negotiation of it. In the alternative, he is offering to have his access in the United States, and suggested that the Applicant Mother deliver the children to Niagara Falls in the U.S.A. following which she could retain their passports.
[17] The Applicant Mother is fearful of releasing the children to the Respondent Father in the United States. Even if she retains the children’s passports, she states that the Respondent Father is able to obtain new Egyptian passports for the children without her knowledge or authorization and would still be able to take bring the children out of the U.S.A. without her knowledge.
[18] Accordingly, I am left with the situation wherein the Respondent Father is reluctant to come to Canada where the children live to exercise access, and the Applicant Mother is reluctant to send the children to either Egypt or the UAE, where the children have already disappeared once, and where she could be involuntarily retained if she attends herself.
[19] In my decision of June 5, 2019, I granted the Applicant Mother interim custody of the two children and made an order that they not be removed from the care of their mother or from the greater Toronto area without her written consent or a valid court order. I permitted access by the Respondent Father to the children as long as it took place in the greater Toronto area or elsewhere with the Applicant Mother’s written consent. In essence, the Respondent Father seeks a variation of this order for the purposes of a summer holiday.
[20] For the following reasons, I am not inclined to grant the motion:
a) There is still no adequate explanation for the children’s’ disappearance in Egypt for 10 days in December 2018;
b) In the notes from the Peel Children’s Aid Society (which became involved upon the children’s return to Canada) dated January 2, 2019, the child Judy told the worker that when she flew to Egypt she was picked up at the airport by her grandfather and uncle. She ate breakfast at her grandfather’s apartment and that her father picked her up and brought her to another house where they stayed for a number of days. In the same interview, her son Hazam maintains he stayed with his maternal grandfather for a week before being picked up by his father. Later in another interview that took place on January 25, 2019, Hazem admitted to the caseworker that he was not truthful in his first interview, and that his father picked him up shortly after they arrived at their grandfather’s place. Both he and Judy confirmed that their father was very busy with work during the entirety of their vacation, but did spend some time with them at the beach at a resort;
c) Hazem also confided in his counsellor that he lied initially to protect his father;
d) the Applicant Mother has provided copies of text messages between her son and the Respondent Father where the Respondent Father asked Hazem where he would like to live and involves him in the litigation. Also, in these texts the Respondent Father tells Hazem that an order of this court is not as strong as an order from Allah, and states “Coz I don’t give a damn about Canada or courts in Canada or law in Canada as it’s not Islamic laws. If judge come here to me I’ll prison him :)”. He also stated “if ur mom came to egypt or any Islamic country I can put her in jail u know that”;
e) There has been no explanation as to why the Respondent Father has taken no steps to deal with the outstanding criminal charges. He has indicated that he has 45 days of holiday this summer, during which he would have had ample opportunity to work with Canadian counsel and work out a situation which would permit him to visit with his children. He has the resources to retain competent counsel; and
f) The children do not have visas to enter the U.S.A. Even if they were acquired, the Hague Convention would not assist the Applicant Mother as the children are not habitually resident there, and the American authorities would have no binding order that would compel them to return the children to Canada.
[21] I am mindful of the comments made by Pazaratz J. in the decision of Mahadevan v. Shankar, 2010 ONSC 5608, at para. 19-20. In that case, the father wished to bring his son to India for a month and the mother feared that the child would not be returned. India was not a signatory to the Hague Convention, and accordingly she would have no recourse if the child was not returned.
[22] After reviewing the conflicting affidavits in this high conflict matter, Pazaratz stated at para. 20:
Even if some of the Applicant’s allegations about the Respondent’s attitude and behaviour are true, it would be naïve and reckless to disregard the real possibility that someone – either the Respondent or perhaps members of his family in India (who appear to be quite invested in this dispute) – might be tempted to resort to self-help, rather than rely on a Canadian court system which has thus far disappointed them.
[Emphasis original].
[23] I have serious concerns that the Respondent Father has no respect for the Canadian court system, and in fact has stated that he believes it is subservient to Islamic Law. Accordingly, I have no faith that the Respondent Father will obey any court order that requires him to return the children to Canada.
[24] I am also very concerned that, with respect to the children’s disappearance in December 2018, the Respondent Father’s position is that irrespective of any explanation of what happened to the children, it should not concern this court as the children were returned in any event. This shows a disregard for the welfare of the children and of the court’s overriding obligations to protect the children and act in their best interests.
[25] It is recognized that these children have lived an international life prior to settling in Canada, and that most of their extended family live in Egypt. This current quagmire is restricting the children’s ability to safely enjoy their cultural heritage and extended family. This impasse must be resolved by the parties – by the Respondent Father in Canada and by the Applicant Mother in Egypt. In the meantime, I again refer to the comments of Pazaratz J. in Mahadevan at para. 40:
The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.
[26] The children live here. They are permanent residents of Canada. The Respondent Father was a part of the decision to relocate to Ontario. By refusing to deal with the criminal charges, the Respondent Father has put himself in the situation that he can only have access to his children outside of the jurisdiction of this court. This is short-sighted. The Respondent Father cannot be in a position where he will not be able to come to the very country where his children live. What will happen if the children need urgent care and Applicant Mother is unable to provide for it? Does the Respondent Father want to attend the children’s special events, or eventual graduations? Is the Respondent Father not taking steps to address the charges because he believes the children will eventually be permanently relocated out of Canada? Is that the Respondent Father’s goal? The Respondent Father must address these charges if he wishes to have a meaningful role in his children’s lives. If the charges are dismissed or otherwise disposed of, the issue of make up access can be addressed.
Conclusion
[27] Based on the foregoing, I make the following orders:
a) The Respondent Father is entitled to summer access with his children from this date until the end of the children’s school holidays, as long as it takes place in accordance with the restrictions set forth in my Order of June 5, 2019, and the children are returned to the Applicant Mother by August 30, 2019;
b) The parties are encouraged to resolve the issue of costs between themselves. If they are unable to do so, both parties shall file their cost submissions, restricted to two pages, single sided, double-spaced, exclusive of Costs Outline and case law, to be served and filed no later than 4:30 p.m. on August 16, 2019; responding materials with the same size restrictions shall be served and filed no later than 4:30 p.m. on August 30, 2019;
c) The motion is otherwise dismissed.
Fowler Byrne J.
Released: August 1, 2019
COURT FILE NO.:FS-19-0001-00
DATE: 2019 08 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
VASMINE MAHMOUD HANI SHALABY
Applicant
- and -
HESHAM MAHMOUD ABDEL HALEEM NAFEI
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: August 1, 2019