Court File and Parties
Court File No.: FS-20-16693 Date: 2020-07-09 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: July 9, 2020
Endorsement
[1] The central figures in this proceeding are Dress Mestiri, born May 1, 2009, and Zied Mestiri, born January 21, 2015 (“the children”), who were born and raised in Toronto until they were taken by the Respondent father to Tunisia for a two-week vacation in March, 2020. The Respondent has refused to return the children to their home. The Applicant mother commenced this proceeding to have the children returned home. The background related to this matter is described in Bayar-Mestiri v Mestiri, 2020 ONSC 3620 wherein an Interim Order was made that, amongst other things, granted interim sole custody of the children to the Applicant mother. An Order for the return of the children was not made at that time as it was believed that the Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”) was in effect between Tunisia and Canada.
[2] The Applicant mother now brings this further motion for the return of her two children from Tunisia along with other related relief. There have been several events since the issuance of the Interim Order.
[3] The Respondent father has commenced a proceeding in Tunisia for a divorce and interim sole custody of the children. The Applicant was advised by the Central Authority for the Province of Ontario that the Hague Convention on Civil Aspects of International Child Abduction is not in force between Canada and Tunisia as Canada has not declared its acceptance of Tunisia’s recent accession to the Hague Convention.
[4] The Respondent appeared in a Tunisian Court on July 6, 2020 seeking a divorce from the Applicant. On July 7, 2020, the Applicant returned to a Tunisian Court to seek interim sole custody of the children. The Applicant retained counsel in Tunisian to appear at that hearing. The Court was provided with a copy of the Interim Order. The Tunisian Court adjourned its hearing to July 13, 2020 pending the outcoming of this motion.
[5] The Applicant intends to travel to Tunisia for a few weeks commencing on July 22, 2020 to seek the assistance of the local authorities to have her sons returned home to Canada.
Order for Return of the Children
[6] The Hague Convention on Civil Aspects of International Child Abduction and thus section 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, are inapplicable. As a result, I rely on this Court’s parens patriae jurisdiction, which is preserved by s. 69 of the Children’s Law Reform Act to grant a temporary order for the return of the children held in Tunisia to Toronto. This Court has the jurisdiction to make such Order as the children were “habitually resident in Ontario at the commencement application for the order” within the meaning of s. 22(1)(a) of the Children’s Law Reform Act.
[7] Given that: 1) the children were born in Toronto, Ontario, Canada; 2) have lived their entire life in Canada before being detained by the Respondent in Tunisia since March, 2020; 3) the Applicant, who resides in Toronto has interim sole custody of the children, I find that it is in their bests interests to make an Order requiring that the Respondent immediately, and at his own cost, return the children to Toronto and into the care of the Applicant.
[8] As an ancillary measure, I also direct that the Royal Canadian Mounted Police, the Ontario Provincial Police and the Toronto Police Service take whatever steps they deem appropriate, if any, to support the enforcement of the return of the children to Toronto, Ontario, Canada in accordance with this Order including liaising with the International Police Organization (INTERPOL) and police organizations in Tunisia.
Substituted Service
[9] The Applicant has re-visited its request for 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.
[10] The Applicant has not demonstrated that one of the stated exceptions to the Service Convention applies. However, given that it would likely take months for service of the Application to be effected through the Central Authority, and that such delay would thwart access to justice in the event that the Applicant’s position that the children be returned to Canada is upheld by this Court after hearing the Respondent father’s submissions.
[11] Given that the above Orders have been made without notice to the Respondent father, the Respondent father will be granted an opportunity to bring a motion, if he wishes, that will be heard on July 17, 2020, at 9 am Eastern Standard Time, to vary the Orders made today. The Respondent father shall deliver his Notice of Motion and supporting written materials by July 14, 2020, 4:30 pm Eastern Standard Time.
Conclusions
[12] I make the following Order:
The Applicant is granted leave 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.
On a temporary basis it is ordered that: a. The Respondent shall immediately, and at his own cost, return Dress Mestiri, born May 1, 2009, and Zied Mestiri, born January 21, 2015, to Toronto and into the care of the Applicant; b. The Royal Canadian Mounted Police, the Ontario Provincial Police and the Toronto Police Service shall take whatever steps they deem appropriate, if any, to support the enforcement of the return of the children to Toronto, Ontario, Canada in accordance with this Order including liaising with the International Police Organization (INTERPOL) and police organizations in Tunisia.
The Applicant is granted leave to serve her Application and all other documents in this proceeding on the Respondent sending those documents both to him and his lawyer in Tunisia at the following email addresses, respectively: monef.mestiri@gmail.com and kamel.rezgui@supcom.tn
On or before July 10, 2020 at 4:30 pm Eastern Standard Time, the Applicant shall deliver the Notices of Motion and supporting materials that were the subject of this Endorsement and the Endorsement dated June 9, 2020 along with a copy of this Endorsement.
The Respondent may bring a motion to vary the terms of this Order to be heard on July 17, 2020 at 9 am Eastern Standard Time. The Respondent chooses to do so, he shall deliver his Notice of Motion and any supporting materials by 4:30 pm EST on July 14, 2020. Costs of today’s motion shall be addressed at the motion scheduled to be heard on July 17, 2020;
This Order takes immediate effect without a formal Order being issued and entered.
Faieta J. Date: July 9, 2020