COURT FILE NO.: FS-19-41-00
DATE: 2019 09 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Z.A.
Applicant
- and -
A.A.
Respondent
Robert Shawyer, for the Applicant Andrew Sudano, Agent for R. Shawyer
Muhammad Zafar, for the Respondent and Faraiyah Babar
HEARD: September 27, 2019, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] The Respondent/Father, who allegedly abducted the parties’ daughter in Iran and faces an outstanding warrant of arrest in Ontario for sexually assaulting the Applicant/Mother, brings this motion to contest the Court’s jurisdiction over the claims for relief the Applicant/Mother has made, including her claim for custody of the parties’ two year old daughter, whom the Applicant has not seen for the past year and a half, since the child was allegedly abducted from her care in Iran. For the reasons that follow, the Respondent’s motion is dismissed.
[2] Before the Case Conference in this case on September 17, 2019, the Respondent/Father obtained an Order from Miller J. permitting him to attend the Conference by video through Skype, “at the Conference judge’s discretion.” I exercised my discretion not to proceed with the Conference in the Respondent’s absence, for reasons set out in my Endorsement on September 17, 2019. I ordered the Respondent to attend the Conference today in person, with the parties’ child. The Respondent has failed to attend or to bring the child. For the reasons, that follow, his pleadings are struck, and the Applicant has leave to proceed to an uncontested hearing.
BACKGROUND FACTS
[3] The Applicant, Z.A., (“Z.A.”), began the present proceeding by Application issued on February 22, 2019, in which she claims custody of the parties’ child, K.A., who is now 2 years old, (born […], 2017), child support, and a restraining order against her spouse, the Respondent, A.A., (A.A.). Justice Coroza made an Order dated April 15, 2019, approving service of the Application and related documents on A.A. on March 22, 2019, by delivery of it to his brother, who A.A. had confirmed was his Power of Attorney and was authorized to receive the material at his home in Ajax, Ontario.
[4] On May 22, 2019, A.A. delivered his Answer, in which he claims spousal support and costs, and, additionally, an Order that this Court has no jurisdiction to entertain the Application for custody of K.A. or child support as the child, he says, is residing in Iraq with A.A.
[5] A.A., by a motion in form 14B, obtained an Order from Miller J. dated September 9, 2019, permitting him to participate by video conference, “in the discretion of the Conference Judge.” For reasons set out in my Endorsement of September 17, 2019, and that I repeat below, I exercised my discretion as the Conference judge not to proceed with the Conference in the absence of A.A.
[6] Steps had not been taken to arrange equipment to be in the courtroom for A.A. to participate by video conference, as contemplated by Miller J.’s Order. Additionally, it was in the interests of justice that A.A. attend in person with the child so that, if necessary, an Order could be made and given effect to if the Court found that the child had been abducted, as alleged by the Applicant, or was in need or protection, or even if the involvement of the Office of the Children’s Lawyer was required, which would require the child’s presence in Ontario.
[7] For the foregoing reasons, the Court adjourned the Case Conference to today. It directed A.A. to attend in person at the resumption of the Conference, and that he brings the child, K.A. The Court directed that, if the Respondent wished to contest to the jurisdiction of the Court, he could make a motion, for hearing today, to have that issue determined.
The present motion
[8] On September 20, 2019, A.A. filed a motion for an Order dismissing the Application based on a lack of jurisdiction over the relief claimed in relation to the parties’ child. He further requested leave to participate in all hearings and motions via video conference until such time as he “is able to come to Canada.”
The parties’ marriage
[9] It is not disputed that Z.A., who was born in Mississauga in 2001, was 14 years old when she met A.A., who was then 22, and entered into an intimate relationship with him. A.A. worked as a sales representative at Re/Max in Scarborough, Ontario, and later at Right at Home Realty in Mississauga.
[10] Z.A. became pregnant with A.A.’s child and, in August 2016, began to reside with him and his family at their home in Ajax, where she says that she was sexually abused by A.A. and his father.
[11] Z.A. and A.A. also resided, from time to time, at A.A.’s own home, which was also in Ajax. On […], 2017, Z.A.’s and A.A.’s child, K.A., a daughter, was born in Toronto at Scarborough Grace Hospital. Z.A. was 15 years old at the time of K.A.’s birth.
[12] Z.A. and A.A. were married on […], 2017, two months after Z.A.’s 16th birthday.
[13] Z.A. says that in September 2018, A.A. suggested that she and K.A. join him for a vacation to the United Arab Emirates, Iraq, and Iran where they could try to repair their relationship and he could introduce their daughter to his relatives, especially his aunts and uncles in Mashhad, Iran. The trip, she says, was for vacation purposes only, and they left all of their belongings and possessions at home in Ajax Ontario.
[14] Z.A. and A.A. arrived in Dubai, U.A.E. on October 5, 2018. After remaining there for 4 nights, they went to Iraq on October 10, 2018, and ended up staying in Iraq for a month because of seeing family and various holy sites, which they had not planned when they left Canada. Z.A. states that eventually, A.A. suggested that they visit his relatives and holy shrines in Iran. Z.A. states that she advised him that she did not have a passport to be able to enter Iran, and that A.A. obtained an illegal Iraqi passport for her and their daughter. She states that A.A. is a Canadian citizen but somehow holds Iraqi and Iranian citizenship and passports.
The alleged abduction of K.A.
[15] A.A. and Z.A. travelled with K.A. to Iran, arriving on November 10, 2018. Their intention, Z.A. says, was to stay in Iran for a few weeks, but when they arrived, they began to fight constantly, and she was a victim of domestic violence during their arguments. On November 14, 2018, they arranged a visit for A.A.’s grandparents to meet with K.A. at their home while A.A. and Z.A. visited holy shrines. They were to return to pick up K.A. and take her to their hotel room to meet up with Z.A.’s father. When they arrived back at the hotel, however, A.A. told her that he had forgotten his cell phone back at his parents’ home and asked if he could borrow her phone so that he could use Google Maps as he was unsure of the way. Z.A. asked if she could go with him to pick up K.A. and he told her to stay at the hotel with her father, which she agreed to do. She later realized that A.A. had taken all of K.A.’s documents with him and their marriage certificate. That was the last time Z.A. saw their daughter.
[16] Z.A. stated that she eventually messaged A.A. using her father’s cell phone but discovered that her WhatsApp profile was blocked. She used another person’s telephone to message the WhatsApp account connected to Z.A.’s phone and A.A. eventually answered and told her that their relationship was over, and that he did not want her in his life. He then deleted the messages and blocked the person whose phone she had borrowed. Z.A. states that A.A. then went into hiding with their daughter.
Z.A.’s return to Ontario
[17] Z.A. states that she was unable to get any help from the local Iranian police in Mashhad. On November 19, 2018, she gave up and returned to Canada, where her parents helped her file an international child abduction claim with the police in Durham and in Mississauga. She also reported the physical and sexual abuse committed previously by A.A.’s father when she had resided with his parents.
[18] To the best of Z.A.’s knowledge, A.A. is still the owner of their home at B[…] Street in Ajax. She has since learned that A.A. registered their marriage in Iraq and believes that he intends commencing a divorce proceeding there. The Canadian Government has advised her that because of the lack of direct diplomatic relations between Canada and Iran, they had attempted to communicate with the Government of Iran via the Government of Turkey but had been advised that the Government of Iran would not help her.
A.A.’s denials
[19] A.A. denies Z.A.’s allegations of sexual assault against him and his father but says that the criminal charges that the police have laid against him based on her complaints prevent him from returning to Canada. He states, “I make this affidavit in support of showing that the Applicant has outright lied to the Court to win favour in an extremely prejudicial manner and that I cannot be physically present for fear of false persecution within Canada to pursue this matter.”
[20] A.A. acknowledges that he has K.A. with him. He asserts that this is because Z.A. abandoned K.A. and left Canada with her own parents. He states that Z.A. is mentally unstable, that he has suffered at her hands in unspecified ways without being able to do anything to defend himself and that “I do not have enough money to hire private guards to keep me safe at all times. The police will not be able to help me at every hour, every minute, and as such my return would lead to my doom.”
[21] Apart from alleging that on several occasions, Z.A. screamed and yelled at all hours of the night, disturbing everyone for no reason, he offers evidence to support a conclusion that he would be in danger from her. He states that he has videos of physical abuse that Z.A. put him through on a daily basis, “without me saying so much as a word to the police because I did not want to be emasculated.” He attaches a video of her behavior, which I have reviewed. The video which, as Z.A. notes, has gaps in the footage, discloses that A.A. provoked Z.A. for the purpose of creating evidence against her. I find the video, with A.A.’s translations of what he alleges was said and his editorial comments, unconvincing evidence of the abuse he alleges occurred.
[22] A.A. states that he has received multiple threats on his life and says that Z.A.’s father has made threats to him on Instagram, claiming he will take the child back from him and kill him in the name of God, but the translation that he offers of a photo of K.A. states, “You will come back soon by the will of Allah and the spotted snake that stole you will die on a hand that Allah had loved and wanted (for that hand’s) merit not be known.” There is no translation from a qualified translator, and I am not satisfied either as to the authenticity of the attachment or the meaning A.A. ascribes to it.
[23] A.A. states that his uncle is a developer of towns in Iraq and offered him a position where A.A. now works. He states that he has a full-time nanny that takes care of K.A. and that he has family in Iraq to support him and help him in the upbringing of the child. Significantly, A.A. has not provided any address for himself or K.A., either in Iran or Iraq.
ISSUES
[24] This motion calls for the Court to determine whether it has jurisdiction to entertain Z.A.’s claim for custody of KA. and child support.
PARTIES’ POSITIONS
[25] Z.A. asserts that K.A. was habitually resident in Ontario before being abducted by A.A. during a vacation to the Middle East.
[26] A.A. alleges that Z.A. abandoned K.A.
ANALYSIS AND EVIDENCE
[27] In Dovigi v. Razi, 2012 ONCA 361, Juriansz J.A. addressed jurisdiction over custody disputes as follows:
[9] The CLRA (Children’s Law Reform Act) contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
[10] First, under s. 2(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is “habitually resident” in Ontario.
[11] Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
[12] Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.
[13] Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.[^1]
[Emphasis added]
[28] Based on the foregoing, the court must consider whether K.A. is habitually resident in Ontario and whether this is a proper case for the Court to exercise its parens patriae jurisdiction.
[29] Section 19 of the CLRA sets out the overall purposes of Part III of the Act.[^2] That section identifies 5 purposes that guide the interpretation of ss. 22 and 23 of the Act:
- 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.
[Emphasis added]
Habitual Residence
[30] Feldman J.A., in Korutowska-Wooff v. Wooff 2004 ONCA 5548 defined habitual residence. She held that:
- The question of habitual residence is a question of fact to be based on all of the circumstances;
- The habitual residence is the place where the person resides for an appreciable period of time with a “settled intention;”
- A “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
- A child’s habitual residence is tied to that of the child’s custodian(s).[^3]
[31] In the present case, I find that the parties did not reside in Iran or Iraq for an appreciable period of time with a “settled intention.” Z.A. travelled to the Middle East from October 5 to November 19, 2018, for the purpose of vacation, to visit holy sites, and to introduce K.A. to A.A.’s family.
[32] The parties did not have a settled intention to be in Iran or Iraq for an appreciable period of time. Their intention to return to Ontario is evidenced, in part, by the fact that they left their belongings and possessions in A.A.’s home in Ajax. Z.A. was born in Ontario, her family lived in Ontario, and she travelled with a Canadian passport. She did not apply for or receive a passport or permanent residence in any country of the Middle East. Moreover, A.A. has offered no evidence that he had a plan, before arriving in the Middle East, of remining there for any appreciable period of time, or making Iran or Iraq his permanent home.
[33] A party cannot establish a new habitual residence by surreptitiously removing the child to another country. A relocation by self-help will not establish jurisdiction.[^4] However, where the other parent consents to the move, or takes no steps when made aware of the move, either agrees or acquiesces in the child moving, as provided in section 22(2)(b), a new habitual residence is created.[^5]
[34] In the present case, I find that A.A. surreptitiously removed K.A. to Iran and later, perhaps, to Iraq. I find that Z.A. did not agree or acquiesce in K.A. moving, but rather took every reasonable step available to her, both in Iran and on her return to Ontario, to secure her return. I find that no new habitual residence was created by A.A.’s unilateral disappearance with K.A. during the parties’ vacation.
[35] A.A. does not deny that he took Z.A.’s cell phone from her on November 14, 2018, but says that it was a phone that he had purchased for himself and gave her to use in June 2018. A.A.’s admission that on November 14, 2018, he took the cell phone that Z.A. had used since June tends to support Z.A.’s account that A.A. left her stranded in Iran.
[36] A.A. denies that he abducted K.A., but offers no evidence of his own to contradict Z.A.’s account of the events in Iran. He says only:
I did not abduct my child and the Applicant knows that she left the child in my custody. Otherwise, I think it is inconceivable to believe that a mother would leave her child in a foreign country to go back and live her life as if nothing had happened. I know I would not leave or stop looking for my child if I truly believed the child had been abducted.
[37] I reject A.A.’s argument and find that A.A., by disappearing in Iran, where the local police would not help Z.A., left her with little choice but to return to Canada, the country of her birth, citizenship, and residence. I find that Z.A. did not “live her life as if nothing had happened.” On the contrary, she took the legal proceedings available to her immediately upon her return, to no avail.
[38] Z.A. states that during the parties’ trip to the Middle East, A.A. informed her that he would be purchasing a home in Mississauga, would register K.A. in daycare, that Z.A. could return to school and that they would live a happy life away from his parents. As she notes, A.A. has produced no evidence to support a conclusion that the parties, or even A.A., planned to reside in the Middle East. I find that their intention was to visit the Middle East to introduce their daughter to his family and then to return to their residence in Ontario.
Hybrid analysis
[39] The Supreme Court of Canada in Balev v. Baggot, 2018 SCC 16, modified the test for determining habitual residence by requiring that the court consider all of the child’s circumstances, which the Court described as a “hybrid approach”, as opposed to only considering parental intention. While the case was decided pursuant to the Hague Convention, it applies to the present case as the definition of “habitual residence” has been held to be the same in Hague cases and in extra-provincial cases pursuant to Part II of the Act.[^6]
[40] I have considered all of the child’s circumstances, including the fact that she has been in the Middle East for a year. A.A. has not offered sufficient evidence of K.A.’s circumstances to permit this Court to conclude that she is so established in her new environment as to render it harmful to her to be returned to Ontario. She was born in Ontario and her mother and mother’s family, as well as her paternal grandparents live here. Her closest connection is to Ontario and she should be returned here. A.A.’s failure to facilitate some contact between K.A. and her mother in the past year is strong evidence that her remaining in the Middle East under his care would be harmful to her.
Parens Patriae jurisdiction
[41] Having found that K.A. is habitually resident in Ontario, I do not find it necessary to examine whether it would be appropriate for the Court to exercise its parens patriae jurisdiction. Such jurisdiction, which originated in the Court of Chancery’s wardship over, initially, mentally incompetent individuals and was later extended to children, is reserved for cases in which there is a legislative gap and is not exercised to modify existing statutory schemes.[^7]
[42] While courts continue to use parens patriae jurisdiction, even where there is legislation in the area, to deal with uncontemplated situations where it is necessary to do so for the protection of those who fall within its ambit, that is not the case here. I find that the CLRA provides ample jurisdiction for the Court to entertain Z.A.’s claims for custody and child support.
A.A.’s failure to attend for the Case Conference
[43] On September 17, 2019, this Court directed A.A. to attend in person at the resumption of the Case Conference. He has failed to do so. He has not offered evidence that justifies his failure to attend. I reject his explanation that he will face persecution in Ontario if he returns to face the outstanding charge of sexual assault against him.
[44] Additionally, A.A. has failed to return K.A. to Ontario, and is, in that respect also, in breach of the Court’s Order. Even if he had justification for not returning to Ontario himself, which I find that he did not have, he could have arranged for a family member to return K.A. He has offered to satisfactory explanation for his failure to do so.
Remedies for A.A.’s breach of this Court’s Order
[45] Rule 1(8) of the Family Law Rules provides that if a person fails to obey an order in a case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) An order for costs;
(b) An order dismissing a claim;
(c) An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) An order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) An order postponing the trial or any other step in the case; and
(g) On motion, a contempt order.
[46] It would, in my view, be unfair to require Z.A. to continue the proceeding to a contested trial in the absence of K.A. As the Court noted in its endorsement dated September 17, 2019, K.A.’s absence prevents the Court from enlisting the assistance of the Office of the Children’s Lawyer to investigate the needs of K.A. and the ability of her parents to meet her needs. Moreover, A.A.’s exercise of custody over K.A., while depriving Z.A. of contact with her, effectively deprives Z.A. of her ability to obtain evidence herself as to the adequacy of A.A.’s care of her, or of her own ability to care for her in a manner that would better promote K.A.’s best interests.
CONCLUSION AND ORDER
[47] For the foregoing reasons, it is ordered that:
A.A.’s motion is dismissed.
A.A.’s Answer, Financial Statement, and Affidavits are struck out.
Z.A. has leave to proceed to an uncontested hearing of her claims. A.A. shall not be entitled to any further Order in the proceeding, and shall not participate at the trial.
The Applicant, Z.A. shall have temporary custody of K.A. pending the outcome of the trial of her Application. The Respondent shall forthwith return K.A. to the Applicant’s care.
A.A. shall pay Z.A.’s costs of the motion, which I fix in the amount of $5,000.00, inclusive of H.S.T., payable forthwith.
Price J.
Released: September 27, 2019
[^1]: Dovigi v. Razi, 2012 ONCA 361, at paras. 9 to 13; A.M. v. D.L. 2019 ONCJ 155, at para. 412 [^2]: Ojeikere v Ojeikere, 2018 ONCA 372, at para. 13 [^3]: Korutowka-Wooff v. Wooff 2004 ONCA 5548, at para. 8 citing Kinnersley-Turner v. Kinnersley-Turner (1996), 1996 ONCA 1100, at paras. 19-20. [^4]: Carter v. Brooks (1990), 1990 CanLII 2623 (ON CA), 30 R.F.L. (3d) 53 (Ont. C.A.) [^5]: A.M. v. D.L. 2019 ONCJ 155, at paras. 44 and 45 [^6]: Maldonado v. Feliciano, 2018 ONCJ 652; A.M. v. D.L., supra, at para. 46 [^7]: Beson v. Newfoundland (Director of Child Welfare), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716.