Court File and Parties
COURT FILE NO.: FS-20-16693 DATE: 20200717 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WIDED BAYAR-MESTIRI, Applicant AND: MONCEF MESTIRI, Respondent
BEFORE: Faieta J.
COUNSEL: Mehwish Rasheed, for the Applicant Amal Nayyar, for the Respondent
HEARD: July 17, 2020
Endorsement
[1] The background facts are described in Bayar-Mestiri v Mestiri, 2020 ONSC 4249 and Bayar-Mestiri v Mestiri, 2020 ONSC 3620.
[2] The Respondent brings this motion for:
- An Order setting aside all interim Orders obtain by the Applicant on an ex parte basis;
- Directions on “how things should proceed from here given the full account”;
- An Order to schedule a motion on jurisdiction;
- An interim Order declaring that the parties are joint custodial parents of the children;
- An interim Order for the parties to have shared parenting of the children until a with prejudice order can be made based on the children’s best interests;
- An interim Order permitting the children to remain in Tunisia in the Applicant’s and Respondent’s shared care until it is advised for the children to be returned to Canada considering their best interests, health and well-being.
[3] The parties were married on December 30, 2005 in Tunisia and resided together as a married couple in Toronto since 2006.
[4] The parties separated on July 14, 2018.
[5] The parties entered into a separation agreement date June 29, 2019 which provides that the parties would agree upon major decisions affecting the children. It also provided that the Respondent father would be employed in Tunisia starting in September, 2019 and that the children would visit him in Tunisia for 1 ½ months each summer, two weeks in the Winter and one week in March. The Respondent father would pay for all of the children’s travel expenses.
[6] The children 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. They were to return home on March 28, 2020. The Respondent has refused to return the children to their home. The Applicant mother commenced this proceeding to have the children returned home.
[7] On June 9, 2020, the Applicant mother was granted an interim sole custody of the children on an ex parte basis.
[8] On July 9, 2020 the Applicant mother was granted a further order requiring, amongst other things, that the Respondent father return the children to Toronto and into the care of the Applicant. In addition, the Respondent was permitted to bring a motion, to be heard today, to vary the terms of these ex parte Orders.
[9] The Respondent father has commenced proceedings in Tunisia for interim custody of the children. He advises that the Court in Tunisian recently heard and dismissed his application. A copy of the Court’s decision was not provided.
[10] The Respondent concedes that the children’s habitual residence is in Toronto. They have lived their entire lives in Toronto and the separation agreement contemplates that they will reside in Ontario at least until they are 16 years old.
[11] The Respondent submits that the Applicant, prior to obtaining the ex parte Orders, failed to disclose to the Court that she is in frequent contact with the children and has fully participated in the Tunisian proceedings. However, such evidence was provided to the Court.
[12] The Respondent father has not spoken with the Applicant mother since about March 11, 2020. She has not received any response to her attempts to contact him by email, text message or telephone call. The children’s Canadian passports have not been renewed. The children also hold Tunisian passports.
[13] The Respondent alleges that the Applicant committed adultery and that she exhibits passive aggressive behaviour against him. He states that his children have been raised with emphasis on their Muslim religion and cultural values of modesty, chastity and faithfulness which he fears have been slowly diminished by the Applicant.
[14] The Respondent states that the it is in the best interests of the children to live in Tunisia where they can be surrounded by both paternal and maternal family and their own culture and religion. He states that the Applicant is having a hard time looking after the children by herself in Canada and he asks “why should the children suffer?” when they could have a better life in Tunisia.
[15] Finally, the Respondent submits that the risk of exposure to, and harm from, the COVID-19 is lower in Tunisia than in Toronto. As a result, he submits that the children should remain in Tunisia. The Applicant relies on a chart showing the number of deaths in Canada caused by COVID-19 from March 9, 2020 to May 27, 2020. The source of this chart is unstated. No evidence is provided regarding exposure and mortality from COVID-19 in Tunisia. Leaving aside the weak evidence provided by the Respondent, I take judicial notice of the fact that the physical distancing measures implemented in Ontario have resulted in a significant drop in reported cases over the last few months and a gradual return to the resumption of normal activities albeit on a modified basis. It is my view that the Respondent’s attempt to use the COVID-19 pandemic as an excuse to justify keeping the children indefinitely in Tunisia is transparent and unsupported by the evidence.
[16] There is nothing in the evidence or the submissions made by the Respondent which justifies granting the relief sought by the Respondent such as setting aside or varying the ex parte Orders previously made. Prior to be unilaterally kept by the Respondent for more than four months in Tunisia, the children were habitually resident in Ontario. The Respondent’s failure to communicate with the Applicant regarding the children highlights the fact that a joint custody arrangement is inappropriate at this time. I remain of the view that the Respondent should immediately return the children to Toronto. A case conference shall be held during the week of August 24, 2020 for the purpose of dealing with the issues of jurisdiction (which the Respondent appears to have conceded at the hearing today), parenting plan and child support.
Conclusions
[17] I make the following Order:
- The Respondent shall return the children, namely, Dress Mestiri, born May 1, 2009, and Zied Mestiri, born January 21, 2015, to Toronto, Ontario, Canada and into the care of the Applicant, at his own cost, by July 19, 2020;
- The Respondent shall not apply for the renewal of any passport on behalf of the children without this Court’s prior approval. The Respondent shall deliver all of the children’s passports to the Applicant by July 19, 2020;
- 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.
- A case conference shall be held on August 25, 2020 at 2:00 pm.
- This Order takes immediate effect without a formal Order being issued and entered.