Court File and Parties
COURT FILE NO.: FS-20-16693 DATE: 2020-06-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WIDED BAYAR-MESTIRI, Applicant AND: MONCEF MESTIRI, Respondent
BEFORE: Faieta J.
COUNSEL: Mehwish Rasheed, for the Applicant No one appearing for the Respondent
HEARD: In writing
ENDORSEMENT
[1] The Applicant mother states that her two sons are being wrongfully retained by the Respondent father in Tunisia and she brings this ex parte motion for a chasing order, as well as other relief.
BACKGROUND
[2] The Applicant mother and the Respondent father were married on December 30, 2005 in Tunisia and resided together as a married couple in Toronto, Ontario since 2006. They are the parents of two sons: Dress, 11 years old, and Zied, 5 years old. The parties separated on July 14, 2018.
[3] On July 6, 2019 the parties signed a two-page Separation Agreement dated June 29, 2019. It contemplates that the Respondent father will return to Tunisia in September, 2019 and that the children will continue to reside in Toronto with the Applicant at least until they reach the age of 16.
[4] The Agreement includes the following provisions:
• The Respondent will establish residency in La Marsa, Tunisia to pursue a new employment opportunity starting on September 2, 2019;
• The children will continue to reside in Toronto to attend school until they reach the age of 16. Thereafter, the children’s opinion will be taken into consideration when deciding whether they should stay in Toronto or move to La Marsa;
• Major decisions regarding the children’s life should be agreed upon by the parties;
• The children will go to Tunisia during or around school holidays/breaks at an average of three times per year:
o In the Summer: month of July and the first half of the month of August;
o In the Winter: minimum of two weeks between December and January;
o In the Spring; minimum of one week in March;
• The Respondent shall pay the Applicant the sum of $2,500 in child support. The Respondent shall also pay for exceptional expenses related to the children’s needs.
• The Respondent shall pay for the all travel expenses to Tunisia for both children.
[5] The children have lived in Toronto with the Applicant mother their entire life. They attend elementary school in Toronto and participate in various sport activities.
[6] In accordance with the Separation Agreement, the children travelled to Tunisia to visit the Respondent on March 11, 2020. They were scheduled to return on March 28, 2020 with an adult family friend. Due to the COVID-19 pandemic, the Applicant decided to permit the children to stay with the Respondent until the travel restrictions had changed and it was safe for the children to travel back to Toronto. The Applicant learned that the Canadian government had arranged for three flights for stranded Canadians in Tunisia to be returned to Canada. She attempted on numerous occasions to contact the Respondent in order to make arrangements for the return of the children however the Respondent did not respond. The Applicant contacted her son, Driss, who told her that the Respondent had refused to allow the children to return to Toronto or the discuss the return flight. She states that both children are extremely upset that the Respondent has not permitted them to return home to Toronto.
[7] The Applicant states that the Respondent’s lawyer sent a letter to her parents’ home in Tunisia. In turn, the Applicant has retained a lawyer in Tunisia. She has learned that the Respondent has decided to commence divorce and custody proceedings in Tunisia. The Respondent seeks a divorce based on “moral harm” caused by adultery which the Applicant denies occurred. She states that, on this basis, the Respondent seeks a Court Order that grants him sole custody of the children and that establishes Tunisia as their primary residence.
[8] The Applicant states that a hearing is scheduled for July 8, 2020 in respect of the proceeding that the Respondent has commenced in Tunisia. The Applicant states that she seeks a divorce in Ontario as the Applicant would not then be able to seek a divorce in Tunisia.
ORDER SOUGHT
[9] The Applicant mother seeks the following relief:
a) An Order that this motion be heard prior to a Case Conference on the basis of urgency and in the best interests of the children, namely, Driss Mestiri, born on May 1, 2009, and Zied Mestiri born on January 21, 2015;
b) An Order that this motion be heard on an ex parte basis;
c) An Order determining that Ontario has jurisdiction over this matter;
d) An interim Order for the Applicant to be granted sole custody of the children;
e) An interim Order for the children’s primary residence to be with the Applicant;
f) An Order determining that the children’s habitual residence is in Toronto;
g) An Order determining that the children have no other habitual residence, and the Province of Ontario therefore has exclusive jurisdiction to make custody and access orders affecting them;
h) An Order to stay any duplicate proceedings in Tunisia or any other jurisdiction;
i) An Order, pursuant to section 45 of the Children’s Law Reform Act, for a prompt return of the children to Toronto, who are being wrongfully withheld in Tunisia by the Respondent;
j) An Order for any and all police force or organization in Canada, to take all steps that they deem appropriate to enforce the Orders of this Court, particularly with respect to the return of the children to their habitual residence in Toronto, Ontario;
k) An Order for any and all police force organization in Tunisia, such as the International Police Organization (INTERPOL) National Central Bureau for Tunisia, to take all steps that they deem appropriate to enforce Orders of this Court, particularly with respect to the return of the children to their habitual residence in Toronto, Ontario;
l) An Order for the children’s return to be at the Respondent’s own cost;
m) An interim Order for the Respondent to have access to the children as per the Applicant’s direction;
n) An Order for the divorce to be severed from the other issues;
o) An Order allowing the Applicant leave to amend her Application within sixty days of this Order, without the consent of the Respondent;
p) An Order for the Applicant to hold all of the children’s passports and health cards;
q) An Order allowing the Applicant to serve her Application and all documents in this proceeding on the Respondent via email at moncef.mestiri@gmail.com;
r) An Order for costs on a full recovery basis.
[10] The fixing of costs is governed by section 13dd
ANALYSIS
[11] Both Canada and Tunisia are parties to Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”). In Ontario, the Hague Convention is adopted pursuant to section 46 of the Children’s Law Reform Act, R.S.O. 1990, chap. C.12 (“the CLRA”).
[12] In respect of this motion, the essential features of the Hague Convention are as follows:
(1) The purpose of the Hague Convention is two-fold. First, to secure the prompt return of children wrongfully removed to or retained in any Contracting State. Second, to ensure that the rights of custody and of access are effectively respected in the other Contracting States: see Article 1;
(2) The removal or the retention of a child is wrongful where: (a) it is in breach of rights of custody (whether arising by operation of law, by judicial or administrative decision or by agreement) attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention: See Article 3
(3) For purposes of the Hague Convention:
a. The Central Authority for Ontario is the Ministry of the Attorney General for purposes of the Hague Convention: see CLRA, s. 46(4);
b. The Central Authority for Tunisia is Ministère de la Justice, Boulevard Bab Bnet, Tunis, Tunisia. Contact person: Mme Moufida BOUGHANMI, moufida.boughanmi@e-justice.tn. See https://www.hcch.net/en/states/authorities/details3/?aid=1099
(4) Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children by taking all appropriate measures such as by bringing about an amicable resolution of the issues and initiating or facilitating the institution of judicial or administrative proceedings: See Article 7
(5) Any person claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child: See Article 8
(6) If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transit the application to the Central Authority of the Contracting State and inform the requesting Central Authority, or the applicant, as the case may be: See Article 9
(7) The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child: See Article 10
(8) The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children: See Article 11
(9) Where a child have been wrongfully removed or retained and, the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith: See Article 12 [Emphasis added]
(10) Despite Article 12, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person which opposed its return establishes that:
a. The person having the care of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;
b. There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
c. The child objects to the return and has attained an age and degree of maturity at which it is appropriate to take account of its views: See Article 13.
(11) In ascertaining whether there has been a wrongful removal or retention, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable: See Article 14. [Emphasis added]
(12) The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful, where such deision or determination may be obtained in that State: See Article 15.
(13) After receiving notice of a wrongful removal or retention of a child, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of notice: See Article 16.
(14) A decision under this Convention concerning the return of the child shall not be taken to be a determination of the merits of any custody issue: See Article 18
(15) This Convention shall not preclude any person who claims that there has been a breach of custody or access rights from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention: Article 29.
Exceptional Circumstances & Leave
[13] I find that this motion involves a request for urgent relief within the meaning of the Notices to Profession issued by Chief Justice Morawetz and warrant the granting of leave to bring this motion without notice and prior to a case conference pursuant to Rules 14(4.2) and Rule 14(12) of the Family Law Rules, respectively.
Primary Residence, Custody, Access, Passports and Health Cards
[14] The Applicant’s request for an Order of interim sole custody of is, in these circumstances, typically referred to as a “chasing order”, an ex post facto custody order: Thomson v. Thomson, 1994 26 (SCC), [1994] 3 SCR 551, paras. 71-78, 85.
[15] There is no Court order governing custody. The children’s primary residence is in Toronto, in that: (1) they have resided in Toronto since their birth,; (2) that their life (school, sport activities, friends, doctors) has been in Toronto since their birth. Under the Agreement made in July, 2019, the children were to visit the Respondent for almost two months each year. Since his departure in September, 2019, it appears that the children did not visit the Respondent until March 11, 2020. I find that the Applicant mother has been largely responsible for the care of the children. Notwithstanding the language of the Agreement which requires joint decision making for “major decisions”, I find that the Applicant is the custodial parent. Accordingly, I grant the Applicant temporary custody of the children. As a consequence, I also order that the Respondent deliver the children’s passports and health cards to the Applicant upon their return to Canada (in the event that the return of the children to Toronto is ordered by a Court in Tunisia).
[16] The Applicant submits that the Respondent should have access to the children at her direction. Given the circumstances, greater clarity is required in order for this Court to be assured that the children’s best interests are addressed. On an interim basis, I find that the Respondent should have only have supervised access to the children and only when the children are in Toronto.
Order for Return of the Children
[17] The Applicant mother asks this Court to order the return of the children from Tunisia under section 46 of the CLRA. In this regard, the Applicant relies on Hadissi v. Hassibi, 1994 7566 (ON SC), [1994] O.J. No. 4607. However, that case involved an application under the Hague Convention in Ontario to return a child, that had been taken to Ontario, back to the child’s habitual residence in California.
[18] There is no indication in the materials filed that the Applicant mother has contacted the Central Authorities either in Ontario or Tunisia, nor is there any indication that an application under the Hague Convention for the return of the children to Canada has been commenced in Tunisia.
[19] An application under the Hague Convention must be made where the child is located. Accordingly, a declaration from this Court regarding “habitual residence” of the children and Order for the return of the children, under the Hague Convention, is not properly before this Court: NVG v, IMP, 2017 ONSC 6009, paras. 1-3, 25.
Stay of Duplicate Proceedings
[20] This Court has no authority to stay a proceeding in another jurisdiction. Such request should be made to the Court in which the alleged duplicate proceeding has been brought.
Severance of Divorce
[21] Rule 12(6) of the Family Law Rules provides that the court may, on motion, make an order splitting a divorce from the other issues in a case if,
(a) neither spouse will be disadvantaged by the order; and
(b) reasonable arrangements have been made for the support of any children of the marriage.
[22] Further, Rule 2(2) and 2(3) state the primary objective of the Family Law Rules is to enable the court to deal with cases justly,
[23] Section 8(2)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that the court may grant a divorce where the spouses have lived separate and apart for at least one year. Section 11(1)(b) of the Divorce Act permits the court to stay the granting of a divorce until such time as it is satisfied that reasonable arrangements have been made for the support of any children of the marriage.
[24] The sole purpose of severing the divorce from the corollary relief is to disadvantage the Respondent to ensure that a divorce is granted in Ontario before the Courts in Tunisia deal with the Respondent’s request for divorce on July 8, 2020. I am not prepared to grant the sever the divorce from the corollary relief in these circumstances.
Leave to Amend Application
[25] The Applicant is granted leave to amend her Application.
Substituted Service
[26] The Applicant is denied leave to serve this Application and all documents in this proceeding on the Respondent via email at moncef.mestiri@gmail.com. Tunisia is a recent signatory to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Service Convention”). See https://www.hcch.net/en/news-archive/details/?varevent=589. The Applicant shall either comply with the Service Convention or seek an order for substituted service on the Respondent by demonstrating that an exception applies given the terms of the Service Convention or that access to justice necessitates such exception: Xue v. Zheng, 2018 ONSC 1979; Petrovic v. Petrovic, 2019 ONSC 5838
Costs
[27] No supporting materials were submitted in respect of the Applicant’s claim for costs.
CONCLUSIONS
[28] This Court makes the following Order:
The Applicant is permitted to bring this motion on the basis that the relief sought by the Applicant constitute “urgent relief” within the meaning of the Notices to Profession issued by Chief Justice Morawetz;
The Applicant is granted leave to bring this motion without notice and prior to a case conference pursuant to Rules 14(4.2) and 14(12) of the Family Law Rules;
The Applicant is granted interim sole custody of the children, namely, Driss Mestiri, born on May 1, 2009, and Zied Mestiri, born on January 21, 2015; (hereinafter collectively referred to as the “Children”)
The Respondent shall deliver the Children’s passports and Ontario government issued health cards to the Applicant upon the Children’s return to Canada in the event that they are ordered to return to Canada;
The Respondent is granted interim access to the Children on condition that such access occurs at a time, location and duration approved by the Applicant and that (1) such access is supervised by a person approved by the Applicant; (2) occurs in Toronto, Ontario;
The Applicant is granted leave to amend her Application;
There shall be no costs of this motion awarded.
This Order takes immediate effect without it being issued and entered.
Faieta J.
Date: June 9, 2020