COURT FILE NO.: FC-18-56472-00

DATE: 20190115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amna Nawab, also known as Amna Ashgar, Applicant

AND:

Syed Asghar Abid, Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: Jane Mukongolo, Applicant

Ali Farahmand, Counsel for the Respondent

HEARD: January 15, 2019

ENDORSEMENT

[1] The respondent brings a motion: a) dismissing the applicant’s Application for divorce and the corollary relief as the applicant does not meet the residency requirement; b) dismissing the applicant’s custody and access claims under the Children’s Law Reform Act, as the respondent states that Ontario has no jurisdiction; and c) an order for the children of the marriage to be returned to Dubai immediately.

[2] The Applicant brings a cross-motion: a) dismissing the respondent’s motions; b) granting the applicant custody of the children of the marriage Syed Askari Hussain born November 27, 2004, Syed Shahmeer Asghar born December 22, 2006, Syed Mustafa Asghar born April 16, 2012; and Shahnoor Asghar born October 15, 2014; b) Child Support payable by the respondent; c) section 7 expenses to be paid for by the respondent; d) spousal support and e) disclosure.

[3] The issue of jurisdiction under the Children’s Law Reform Act and the Divorce Act were argued today. The balance of the motion, should Ontario have jurisdiction, is adjourned to February 5, 2020 at 9:30 am.

Background Facts

[4] The parties were married January 4, 2004 in Pakistan. While both parties are of Pakistani descent, at the time of the marriage, the respondent was living in Dubai, United Arab Emirates. Immediately after the marriage the applicant moved to Dubai.

[5] Of this marital union there are four children namely, Syed Askari Hussain born November 27, 2004; Syed Shahmeer Asghar born December 22, 2006; Syed Mustafa Asghar born April 16, 2012; and Shahnoor Asghar born October 15, 2014.

[6] The applicant states that she was the primary caregiver for the children and had the assistance of a nanny. The Respondent worked.

[7] The applicant states that the marriage was peppered with violence and abuse on the part of the respondent against the applicant. She states that starting on her wedding night and every day thereafter she was unable to use the washroom independently as the respondent would not grant her privacy. She states everything was controlled by the respondent including the household money. She states that during the birth of Shahmeer the respondent forced her to take castor oil to induce pregnancy as he was hoping to go to Pakistan for his sister’s engagement. She states she was not permitted to an epidural for this birth.

[8] The applicant states that she suffered physical and sexual abuse that was continuous and relentless throughout the relationship. She states that she felt helpless because violence against women is not taken seriously in Dubai. With the help of her brother, Ali, on September 29, 2017 she and the children rushed to the Dubai airport to escape the abuse. She states that she was terrified that the respondent might discover the plan and arrive at the airport and kill her.

[9] The Applicant and the children arrived in Canada on September 29, 2017 and this is the day the parties separated.

[10] Once in Canada the applicant and the children resided with the maternal grandparents.

[11] The applicant applied for refugee status on the basis of domestic violence and gender-related persecution.

[12] The children were enrolled in school and the applicant and the children have been living in Canada since September 29, 2017 – a period of 2 years and 4 months on the hearing of this motion.

[13] On December 13, 2019 the applicant and the children were granted refugee status.

[14] The respondent states that the applicant and the children left Dubai on September 29, 2017 without his consent. In a discussion that day, the respondent states that the applicant asked for permission to go for 10 days only.

[15] The respondent states that despite frequent calls to the applicant in Toronto, following the date she left Dubai, she refused to speak to him.

[16] In December, 2017 the respondent states that he came to Canada and the applicant’s family presented him with a 12-point plan for cooperation and reconciliation. He did not sign the document.

[17] In July 2018 the respondent returned to Canada and was served with an application for divorce and states that he learned, for the first time, that the applicant made a request for refugee status.

[18] The respondent states that he has never been violent towards the applicant or the children.

[19] The applicant filed an application on July 25, 2018 requesting a divorce and corollary relief under the Divorce Act. The applicant also requested relief under the Children’s Law Reform Act.

[20] On October 4, 2019 the respondent filed a notice of motion requesting an order that Ontario has no jurisdiction in this matter.

[21] On October 9, 2019 the motion was before me. Counsel for the respondent was unable to attend as he was ill. There was a consent to a Voice of the Child report as the Office of the Child’s lawyer declined involvement.

[22] On December 30, 2019 a Voice of the Child report, in respect of the children Shahmeer and Askari was complete and filed with the court. Both children expressed a strong desire to remain in Canada. Both children reported mistreatment at the hands of the respondent.

Jurisdiction – [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[23] Section 3 of the Divorce Act states: “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.” (emphasis added)

[24] At the time the applicant filed her application she had been living in Canada for 9 months. The respondent has not lived in Canada.

[25] In Haroon v. Haroon 2019 ONSC 77 the court found there was no jurisdiction to hear a divorce application under the Divorce Act as the applicant was not ordinarily resident in Ontario for one year prior to the application being commenced.

[26] The court in Robar v Robar 2010 NBQB 8 declined jurisdiction under the Divorce Act where the wife had moved to NB eight (8) months before signing her petition for divorce. The court emphasized that section 3 of the Divorce Act was the “sole basis for jurisdiction for divorce.” (at para. 12). Further, the court noted that “these statutory requirements are substantive, and failure to establish residency is fatal to the proceeding.” (at para. 14). The court did, however, find that it had jurisdiction to grant the divorce under the Divorce Act by virtue of the counter-petition filed by the husband, who had been ordinarily resident in NB for over 12 months at the time he signed his counter-petition.

[27] In Gazo v Gazo 2005 CarswellOnt 534 the court discussed the residency requirement under section 3 of the Divorce Act and stated:

Sections 3 to 6 of the Divorce Act define the jurisdictional competence of a court to grant a divorce and any corollary relief by way of spousal or child support or custody of or access to the children. A divorce petition can be presented by either or both spouses to the court of the province wherein either spouse has been ordinarily resident for not less than one year immediately preceding the filing of the petition. The first issue then is whether Maria Gazo has been ordinarily resident in Ontario for not less than one year immediately preceding the filing of the divorce petition. In this case, there is no doubt that she has not been resident in Ontario for the requisite time period. …. she may have intended to maintain her residency here. However, she did not do so. As was held in MacPherson v. MacPherson(1976), 1976 854 (ON CA), 28 R.F.L. 106 (Ont. C.A.), intention alone cannot determine ordinary residence. Mr. and Mrs. Gazo left Ontario in 2001 and moved to the Slovak Republic. They made the Slovak Republic their home until Maria Gazo returned to Ontario in March 2003. When she commenced her divorce proceeding on December 4, 2003, she had been resident in Ontario since March 31, 2003. Maria Gazo was not ordinarily resident in Ontario for one year immediately preceding the filing of the petition. This Court had no jurisdiction to entertain the petition for divorce.

[28] The court in Jung v Jung 2016 ONSC 3020 addressed the residency requirement of section 3 of the Divorce Act and stated:

In general, courts have strictly interpreted s. 3(1). The prevailing view is that "there is no naturally existing right to a divorce, but rather a right, based in statute, to present a petition for a divorce": Garchinski v. Garchinski, 2002 SKQB 323 (Sask. Q.B.), at para. 25. The leading case for this proposition is Winmill v. Winmill (1974), 1974 1228 (FCA), 47 D.L.R. (3d) 597 (Fed. C.A.). In Winmill, the applicant argued that the Federal Court should exercise jurisdiction to hear her divorce under s. 25 of the Federal Court Act, which provision allows the Federal Court to hear claims for relief where no other courts in Canada have jurisdiction. The applicant did not meet the residency requirement in any individual Canadian province. The Federal Court of Appeal rejected her argument, holding that the Divorce Act does not grant a right to divorce, but a limited right to apply for divorce subject to the conditions of the Act.

[29] As neither the applicant nor the respondent were ordinarily resident in Canada for one year prior immediately preceding the commencement of an application under the Divorce Act, the court has no jurisdiction to consider the request.

Jurisdiction – Children’s Law Reform Act

[30] In her application the applicant requests relief under the Children’s Law Reform Act.

CLRA – section 22 (1) (a)

[31] Section 22 of the Children’s Law Reform Act states that “A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, a) the child is habitually resident in Ontario at the commencement of the application for the order……..”

[32] The applicant argues that the applicant and the children have been residing in Ontario since September 2017. At the time of the application, they had been in Ontario for 10 months. The children are enrolled in school, the two oldest children are in counselling, and the youngest child is going through a psycho-educational assessment and is getting help with speech and hearing challenges. The respondent states the children were abducted and lived most of their lives in Dubai. He argues that Dubai is the habitual residence.

[33] “Habitual residence” under the CLRA generally, is not defined in the legislation but it has been the subject of some scrutiny. The principles that emerge, according to the Ontario Court of Appeal in ​ Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), 2004 CarswellOnt 3203, 5 R.F.L. (6th) 104 (Ont. C.A.) leave to appeal refused ​ 2005 CarswellOnt 3136, 2005 CarswellOnt 3135 (S.C.C.) are:

i) the question of habitual residence is a question of fact to be decided based on all of the circumstances;

ii) the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

iii) 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.;

iv) a child's habitual residence is tied to that of the child's custodian(s).

[34] The Court in Habin v. Amin, 2014 ONSC 5330, 2014 CarswellOnt 14220 (Ont. S.C.J.), stated: ​

When the period of residence does not clearly indicate that it is a habitual residence for the child, the court must look to the child's parents' intentions, particularly evidence supporting an intention to remain indefinitely or for a certain period of time in the new jurisdiction. The court must enquire into the shared intention of the people entitled to change or establish the child's habitual residence, usually the parents, at the latest time their intent was shared. The court should consider actions, as well as, declarations. Then, the court must determine whether or not the evidence establishes that the child has settled in the new location to the extent that she has acquired a new habitual residence. See R. v. Barnet London Borough Council [(1982), [1983] 2 A.C. 309 (U.K. H.L.)], supra; ​ Christodoulou v. Christodoulou, 2009 CarswellOnt 6275 (Ont. S.C.J.); Gitter v. Gitter, 396 F.3d 124 (U.S. C.A. 2nd Cir. 2005) and, ​ Simpson-Campbell v. Stark-Campbell, 2013 ONSC 1328 (Ont. S.C.J.) .

[35] The applicant has certainly demonstrated a settled intention to remain with the children in Canada. The respondent opposes.

[36] It is noteworthy that the wrongful removal of a child does not alter his or her habitual residence: ​ Dovigi v. Razi, 2012 ONCA 361, 2012 CarswellOnt 6704 (Ont. C.A.).

[37] However, where there is acquiescence or undue delay in commencing due process by the person from whom the child is removed, then a new habitual residence (in this case, Ontario) may be established. ​​ Salame v. Massoud, 2016 CarswellOnt 2516 (Ont. S.C.J.) explained at paras. 33-34:

The wording of section 22(3) of the CLRA is clear: the removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. (See ​ Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593 (Ont. C.A.) [Dovigi].)

[38] A party cannot establish a new habitual residence by removing the child to another province or jurisdiction. However, where the other parents consents to the move or takes no steps when he/she finds out about the move, a new habitual residence is created: ​ Mehta v. Gandhi, 2016 ONSC 2453, 2016 CarswellOnt 5629 (Ont. S.C.J.).

[39] In Perez-Lopez v Cordero, [2012] O.J. No. 2101, the mother resided with the children in Mexico for 18 months prior to an application being brought and the father did not take steps to defend the mother’s custody application, did not move against the custody order or for access, failed to disclose his finances as required for child support and never paid child support, the fathers conduct amounted in law to acquiescence to the children’s new mode of life in Mexico.

[40] I find the mother had a settled intention to move with the children to Canada and I find that the respondent’s delay and / or acquiescence caused a new habitual residence.

CLRA section 22 (1) (b)

[41] The applicant also argues that even if the children are not habitually resident in Ontario, the court has jurisdiction by virtue of section 22 (1) (b) which states….”A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (b) although the child is not habitually resident in Ontario, the court is satisfied, i) that the child is physically present in Ontario at the commencement of the application for the order, ii) that substantial evidence concerning the best interests of the child is available in Ontario, iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, iv) that no extra-provincial order in respect of custody or access to the child has been recognized by a court of Ontario, v) that the child has a real and substantial connection with Ontario, and vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[42] The children are present in Ontario.

[43] The children have been present in Ontario since September 2017. Ontario is where they go to school. Ontario is where they have service providers. Ontario is where the oldest two children have counselling. Ontario is where the youngest is having an assessment and is getting assistance for hearing and speaking challenges. The oldest has ADHD and he is getting medical assistance with that.

[44] There is no application for custody of or access to the children in Dubai or in any jurisdiction other than Ontario.

[45] There is no extra-provincial order in respect of custody or access to the children that has been recognized by a court of Ontario.

[46] The children have resided in Ontario with the applicant since September 2017. The maternal grandparents live in Ontario. The maternal uncles reside in Ontario. The maternal first cousins reside in Ontario.

[47] The most recent information and evidence in respect of the best interests of the children is in Ontario. The views and preferences of the oldest two children who are 15 and 13 are available through the Voice of the Child’s Report.

[48] I find that all of the criteria under section 22 (1) (b) Children’s Law Reform Act were met.

CLRA – section 23

[49] The applicant also argues that the court can assume jurisdiction pursuant to section 23 of the Children’s Law Reform Act if the court is satisfied that serious harm may occur to the children if they are removed from Ontario.

[50] She argues that she fled violence. Her affidavit of September 30, 2019 is flush with details of violence.

[51] The applicant is receiving treatment for post traumatic stress disorder through her psychiatrist, Dr. Ghanegani. She had one year of counselling.

[52] I do not have sufficient information available to convince me the children would experience serious harm under section 23 Children’s Law Reform Act if returned to Dubai.

[53] As stated, I have determined that the children are habitually resident in Ontario as a result of the respondent’s delay / acquiescence and the applicant’s settled intention to move. The children have been resident in Ontario for two years and 4 months as of the hearing of this motion. The children resided in Ontario for two years before the respondent brought a motion before the court.

[54] Even if the children were not habitually resident, I find that the court has jurisdiction by virtue of section 22 (1) (b) of the Children’s Law Reform Act as all of the criteria enumerated have been met.

Order

1. The Ontario court does not have jurisdiction with respect to the relief claimed in the application pursuant to the Divorce Act.

2. The Ontario court does have jurisdiction with respect to the relief claimed in the application pursuant to the Children’s Law Reform Act.

3. The motion for custody, access, child support, spousal support and section 7 expenses will proceed February 5, 2020 at 9:30 am.

4. The applicant is permitted to file a new Application for relief under the Divorce Act as she has been ordinary resident in Ontario for over one year.

5. The respondent is permitted to file a commissioned copy of his Answer to any relief claimed by the applicant under the Divorce Act.

6. There was divided success in this case and I decline to exercise my discretion and order costs in this motion.

Justice G.A. MacPherson

Date: January 15, 2019