Court File and Parties

Court File No.: 62/20 (St. Catharines) Date: 20200505 Superior Court of Justice – Family Court – Ontario

Re: Saloh Elhadi, Applicant (moving party) And: Mufida Abdelaal, Respondent (responding party)

Before: The Honourable Mr. Justice R. A. Lococo

Counsel: Shawn Knights, for the Applicant Edward F. Kravcik, for the Respondent

Heard: By teleconference

Endorsement

[1] The Applicant Saloh Elhadi and the Respondent Mufida Abdelaal are the parents of six children, aged from three to 15 years. The parties have been separated since September 2019.

[2] The Applicant father brings an emergency motion prior to a case conference for a temporary order that, on an interim and without prejudice basis, he have primary residency of the four younger children, who are currently in his care. He also seeks police enforcement as well as an order prohibiting the Respondent mother from removing any of the six children from the Niagara Region.

[3] By endorsement dated April 27, 2020 (reported at 2020 ONSC 2597), MacPherson J., acting as triage judge during the suspension of regular court operations during the COVID-19 emergency, permitted the Applicant father’s motion to proceed on an emergency basis. In the triage endorsement, MacPherson J. made the preliminary determination that the Applicant father’s motion is urgent and should be referred to a judge for determination. That motion came before me by teleconference on May 5, 2020.

[4] In response to the Applicant father’s emergency motion, the Respondent mother filed responding material through her newly-retained counsel on April 30, 2020. That material includes a Notice of Motion, under which the Respondent mother seeks a temporary order for interim custody of the children, with access to Applicant father. Her motion is stated to be returnable on May 5, 2020, at the same time as the Applicant father’s emergency motion.

[5] The Respondent mother’s motion was not submitted for a summary determination of whether it met the urgency threshold to permit it to proceed on an emergency basis during the COVID-19 emergency, as set out in Central South Regional Notice to the Profession dated March 24, 2020. Therefore, her motion is not properly before me for consideration as an emergency motion. In any event, based on the material the Respondent mother provided and her counsel’s submissions at the motion hearing, I am not persuaded that her motion meets the requirement for urgency set out in either the COVID-19 notices to the profession or r. 14(4.2) of the Family Law Rules, O. Reg. 114/99. As indicated further below, I do not consider the safety or wellbeing of the four younger children to be in issue if they continue to reside primarily with the Applicant father on an interim and without prejudice basis until a case conference is held. I am therefore adjourning the Respondent mother’s motion to a case conference on a date to be arranged with the Trial Coordinator, following the first appearance for the Applicant father’s application.

[6] In deciding the Applicant father’s motion, I have considered his initial affidavit, the contents of which are comprehensively summarized in Justice MacPherson’s triage endorsement. I have also taken into account the two affidavits included in the Respondent mother’s responding material (referred to below), as well the Applicant father’s reply affidavit filed on May 4, 2020.

[7] It is common ground that the parties married in the Sudan in 2003 and separated in September 2019. They have since undergone a Muslim religious divorce but not a civil divorce. At the time of their separation, they resided with their six children in St. Catharines. After the parties’ separation, the children continued to reside with the Respondent mother in the previous family residence. The Applicant father had access visits with the children.

[8] The Applicant father took the five younger children into his care in mid January 2020, he says with police assistance. At that time, the children were in the care of a friend of the Respondent mother in Kitchener. A few days previously, the Respondent mother had travelled to the Sudan for the purpose of getting remarried, followed by a honeymoon. The Applicant father says that he learned of the Respondent mother’s absence from his 15-year-old son when he attended at the family residence for an access visit. After attending at the friend’s Kitchener residence where the younger children were staying, the Applicant father reported the situation to the Children’s Aid Society of the Niagara Region, including his concerns about what he considered to be the unsatisfactory conditions in the residence.

[9] Once the five younger children were in the Applicant father’s care, Children’s Aid assisted him in obtaining temporary hotel accommodation for him and the children. They have since relocated to a four-bedroom house, again with Children Aid’s assistance.

[10] On February 5, 2020, the Applicant father brought an application seeking custody of the children, as well as an urgent ex parte motion for interim custody, returnable February 13, 2020. On that date, Brown J. made a temporary temporary order on a without prejudice basis for the children’s residency with the Applicant father. That order remains in effect.

[11] Upon the second return of the Applicant father’s motion on February 20, 2020, the Respondent mother appeared with duty counsel, having been served following her return to St. Catharines. She was accompanied by her eldest son, who continues to reside with his mother since her return to Canada. The motion was further adjourned to March 19, 2020, to allow the Respondent mother to retain counsel and file responding material. The absence of an Arabic interpreter was also an issue at that time, given the Respondent mother’s limited English. With the intervening suspension of regular court proceedings due to the COVID-19 emergency, the motion did not proceed on March 19.

[12] Subsequent to that time, Applicant father has facilitated the Respondent mother’s access with the five younger children. After an access visit in late March, the parties’ 13-year-old daughter has remained with the Respondent mother, over the Applicant father’s objection.

[13] The temporary order the Applicant father now seeks is for the interim residency with him of the four younger children, with police enforcement. He would prefer to have all six children in his care but is willing for the two older children to stay with their mother, to avoid further upheaval in their living arrangements. Among other things, he is concerned about the Respondent mother’s leaving the children in January in the circumstances she did, without making arrangements for their proper care or ensuring they were not absent from school. More generally, he expresses concern about the level of supervision that the Respondent mother provides to the children, often leaving them unattended when she is out for the evening. As well, after making inquiries with the children’s school and their doctor, he is concerned about the children’s school attendance record and medical care. In addition, he fears that she will influence the younger children to return to live with her notwithstanding any court order.

[14] In her responding material, the Respondent mother denies leaving the country without letting the Applicant father that she was doing so. She says that she offered him the opportunity to care for the children in her absence, but he told her he was unable to do so (which the Applicant father denies). As well, supported by an affidavit from her friend in Kitchener, the Respondent mother denies that the conditions in which the children were left in Kitchener were in any way lacking, and that in any case, her friend intended to return with the children to St. Catharines after a few days to stay at the Respondent mother’s residence with the children so they could return to school, which had already started. The Applicant father questions the credibility of that explanation as well as the friend’s capacity to care for the children, given her medical issues following the recent amputation of one of her legs. The Respondent mother also denies any general lack of attention to the children’s care, stating that she has always been the children’s principal caregiver. She also questions the Applicant father’s ability to care for the children, generally alleging drug and alcohol abuse, without providing any specific examples or other supporting evidence. The Applicant father denies having any substance abuse issues.

[15] The Respondent mother says that the children’s residency with her was the status quo following the parties’ separation until the Applicant father took advantage of her absence from the country by taking the five younger children into his care by a self-help basis. Through her counsel, she requests that the status quo be restored pending a case conference.

[16] Based on the evidence before me on this motion, I have decided to make the temporary without prejudice order that the Applicant father has requested. I also confirm Justice MacPherson’s preliminary finding of urgency in the triage endorsement.

[17] This motion is brought on an urgent basis prior to a case conference. In the ordinary course, the parties would have had the benefit of case conference as a preliminary step toward resolving the matters in issue. While it is unnecessary at this stage to make detailed findings of fact, it is clear from the record that the Respondent mother, by her actions, has exercised poor judgment in leaving her young children for an unspecified extended period without making adequate arrangements for their care or ensuring their attendance at school. The result has been an upsetting and disruptive time for the children, especially the four younger children.

[18] The overriding consideration in these circumstances is the children’s safety and wellbeing. On the evidence before me, satisfactory living arrangements for the four younger children with the Applicant father are in place (and have been for some weeks), with the assistance of Children’s Aid. In my view, further disruption in of the children’s living arrangements before the case conference would not be consistent with their wellbeing. The Applicant father has acted reasonably by limiting his request for interim residency to the four children currently in his care and facilitating access with the Respondent mother. I therefore agree with the Applicant father that the four younger children should continue to reside with him on an interim and without prejudice basis until the case conference, with reasonable access to the Respondent mother as arranged with the Applicant father.

[19] As well, I am satisfied that the temporary order should include police enforcement and also prohibit the Respondent mother from removing any of the six children from the Niagara Region without the Applicant father’s consent or further court order. While I am normally reticent to make a police enforcement order, I consider the fact that the two older children are currently living with the Respondent mother contrary to the terms of the subsisting temporary order to be indicative of the need for police enforcement in this case. As well, given the Respondent mother’s travel history and her recent marriage overseas, an interim order restricting her mobility with the children is also justified pending the case conference.

[20] At counsel’s suggestion, I am also making an order requesting the involvement of the Office of the Children’s Lawyer, rather than waiting until the case conference for that process to be initiated.

[21] As set out in his costs outline, the Applicant father seeks costs of the emergency motion on a full indemnity basis in the amount of $2,068. His costs outline indicates in the alternative substantial indemnity costs of $1,556 and partial indemnity costs of $1,044.

[22] The Respondent mother suggests that the issue of costs be deferred to the case conference along with the other matters in issue in both motions. However, I agree with the Applicant father that his emergency motion constitutes a discreet step in the proceedings that it is appropriate to deal with separately at this time.

[23] To justify a substantial indemnity costs award, the Applicant father relies, among other things, on the Respondent mother’s failure to comply with the outstanding temporary order granting him interim residency and her failure to retain counsel or provide responding material for the Applicant father’s application or his motion on a timely basis to allow the matters in issue to be addressed.

[24] As indicated by the Ontario Court of Appeal in previous decisions, costs are normally awarded on a partial indemnity basis except in a “rare and exceptional case”, based on “egregious or reprehensible conduct that warrants sanction”: see McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 59 O.R. (3d) 97 (C.A.), at paras. 37-38. While I agree that some aspects of her conduct are cause for concern, I do not consider her conduct to be so egregious as to justify an award of full or substantial indemnity costs. In making that determination, I have taken into account the Respondent mother’s previous self-represented status, her apparent limited social adaptation in Canada, and her limited means. I would therefore award the Applicant father partial indemnity costs in the amount of $600.

[25] Accordingly, on an interim and without prejudice basis, a temporary order will issue as follows:

1. The parties’ four younger children shall reside primarily with the Applicant father.
2. The Respondent mother shall have reasonable access with the four younger children as arranged with Applicant father.
3. The Applicant father shall have reasonable access with the two older children as arranged with the Respondent mother.
4. The Respondent mother shall not remove any of the parties’ six children from the Regional Municipality of Niagara without the Applicant father’s consent or further court order.
5. The Niagara Regional Police Service or other police service having jurisdiction is directed to locate, apprehend and deliver to the Applicant father any of the children if the Respondent mother fails to return the child or children to the Applicant father’s care in violation of this interim order or otherwise violates the terms of this interim order.
6. This interim order shall continue in effect until the case conference referred to below, subject to further extension in the discretion of the case conference judge.

[26] I further order as follows:

1. The Applicant father’s costs of his emergency motion are fixed at $600 including disbursements and tax, payable by the Respondent mother within 90 days.
2. The balance of the Applicant father’s motion together with the Respondent mother’s motion for interim custody are adjourned to a case conference on a date to be arranged with the Trial Coordinator, following the first appearance for the Applicant father’s application.
3. The Respondent mother shall serve and file an Answer to the Applicant father’s application by May 20, 2020.
4. The involvement of the Office of the Children’s Lawyer is requested.

The Honourable Mr. Justice R.A. Lococo Date: May 5, 2020