Court File and Parties
COURT FILE NO.: FC-16-1164-1
DATE: 2019/09/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JABER AL-ABDAN, Applicant
-and-
DEBORAH MacKINNON, Respondent
BEFORE: Justice K. Phillips
COUNSEL: Gonen Snir, for the Applicant
Respondent is self-represented
HEARD: September 26, 2019
ENDORSEMENT
[1] This is a motion on an ex-parte without notice basis for an order that police apprehend this couple’s four children and return them to their father.
[2] The Applicant asserts that the Respondent has abducted the children, abruptly removing them from the family home to take them to an unknown location.
[3] A report from the Ottawa Children’s Aid Society (the “CAS”) relays the Respondent’s position. She says she has left because she is fleeing an abusive marriage. She is presently at a women’s shelter with the children. As one would expect, the location of that shelter has not been shared with the Applicant. At least insofar as where she was living when last within the jurisdiction where the children were habitually resident, the Respondent’s location is known only to the CAS.
[4] Of course, I make no findings about the validity of the Respondent’s claims regarding abuse or threat posed by the Applicant.
[5] That said, focussed solely on the best interests of the children, I have decided against the Applicant on this motion.
[6] The children have lived with their mother as their primary caregiver since birth and indeed have been home-schooled. In fact, one of the central reasons why the Applicant seeks their return is so they can be immediately enrolled in regular school. As well, the Applicant argues that some of the parenting choices made by the Respondent need to be corrected (for instance in respect of diet and vaccinations).
[7] In my view, having the police become involved to take the children from their mother in order to put them in school for the first time and change their diet and health care would be so disruptive to their circumstances as to be against their best interests if decided on an ex-parte without notice basis.
[8] Clearly, however, this situation should not continue without some due process. Given the degree to which the children’s interests are being affected, it is ordered that this matter may proceed as an urgent motion (on notice).
[9] The Applicant has no way to locate the Respondent. For reasons that may be entirely legitimate, she has, from his perspective at least, effectively dropped off the face of the earth. While this might turn out to be warranted on her part, she cannot unilaterally choose to leave the jurisdiction where the children were living in a way that prevents their father from having any ability to advocate his position about their best interests.
[10] In the circumstances, I order that the Applicant may serve the Respondent by way of substituted service in accordance with Rule 6(15) of the Family Law Rules, O. Reg. 114/99. On the evidence, the only identifiable entity with any knowledge of her whereabouts is the CAS. Accordingly, it is ordered that service upon the Respondent may be effected by delivery of materials to the Ottawa Children’s Aid Society. It is the Court’s expectation that the CAS will make a reasonable effort to locate the Respondent and advise her of this proceeding given that it so meaningfully engages the interests of the children.
[11] If the Respondent has left the jurisdiction such that the Ottawa CAS have no reasonable way to locate her then the matter may proceed regardless of service. In those circumstances, consistent with Rule 6(16) of the Family Law Rules, service would not be required as there would be no method of substituted service that could reasonably be expected to bring the matter to the Respondent’s attention.
[12] It is ordered that the matter return for a motion on notice on Thursday, October 10, 2019 at 10:00 a.m.
Justice K. Phillips
Date: September 26, 2019
COURT FILE NO.: FC-16-1164-1
DATE: 2019/09/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JABER AL-ABDAN, Applicant
-and-
DEBORAH MacKINNON, Respondent
BEFORE: Justice K. Phillips
COUNSEL: Gonen Snir, for the Applicant
Respondent is self-represented
ENDORSEMENT
Justice K. Phillips
Released: September 26, 2019