Court File and Parties

Court File No.: FS-20-16693 Date: 2020-08-10 Superior Court of Justice – Ontario

Re: Wided Bayar-Mestiri, Applicant And: Moncef Mestiri, Respondent

Before: J. Wilson J.

Counsel: Mehwish Rasheed, for the Applicant Amal Nayyar, for the Respondent

Heard: August 10, 2020

Endorsement

[1] The father, Moncef Mestiri, (the father) brings this motion seeking that I make a variety of declaratory orders dealing with disputed factual issues (23 in total). Counsel is seeking that I declare these various findings of fact based upon a review of the competing multiple affidavits filed by the parties.

[2] In 2019 the parties settled their differences by way of a separation agreement, agreeing to joint custody. The father had decided after 24 years living in Canada to return to Tunisia to live. The parties had some assistance from counsel, but largely crafted their own agreement. The father has specified times of access when the children will come to Tunisia for visits in December, March and the summer, as well as access if he chooses to come to Canada.

[3] The father initiated proceedings in Tunisia on March 17, 2020 shortly after the children arrived in Tunisia for their anticipated March visit. The mother, Wided Bayar-Mestiri, (the mother) started proceedings in Ontario on an urgent ex parte basis, when the father was non responsive to her inquiries about the return of the children.

[4] The various orders of Justice Faieta granting the mother interim custody and requiring the return of the children have been appealed by the father.

[5] The purpose of this motion is to undermine the factual underpinning of the orders of Faieta, J. dealing with interim custody and terms to facilitate the return of the children to Canada.

[6] Counsel for the father is candid that she seeks to rehabilitate him to the status quo before he commenced proceedings in Tunisia, and before proceedings were commenced by the mother in Ontario.

[7] Counsel for the father has filed a notice to admit various facts that are the subject of the 23 declarations. The counsel for the mother has agreed that she will respond but has been occupied by this motion. This is an appropriate method to define facts that are in dispute and to narrow factual issues.

[8] It is not appropriate to seek that a judge in a motion make detailed findings of fact, if it is not relevant to a substantive matter that is before the court. The materials are voluminous, and this is not an appropriate use of court time. Although the father in the notice of motion sought to vary the interim orders made by Faieta, J. she did not pursue this before me, given the outstanding appeals.

[9] The voluminous motion materials make it clear that although the mother was initially consenting to the children staying longer than the anticipated two-week holiday due to Covid and transportation issues, she did not consent to an extended stay. It appears clear that the father had planned for some time the court application in Tunisia commenced a short seven days after the arrival of the children for their visit. It is also clear to me that he was attempting to use Covid as a reason to not return the children to Canada.

[10] Thankfully, and to his credit, he has returned the children.

[11] It is difficult to unscramble the egg, to return the father to his prelitigation status quo.

[12] I have expressed the view clearly to counsel, in the presence of the father, that if he wishes to return to the status quo in terms of his time with his children exercised in Tunisia, that the Tunisian proceedings need to be permanently stayed, with an acknowledgement and order by the Tunisian court that the children are habitually resident in Canada, and that the Ontario court is the only forum to determine any dispute about custody and access. The Ontario order should be registered or made an order of the Tunisian court to ensure that there can be enforcement of the Ontario order in Tunisia. Ontario is also the appropriate forum to determine issues of support. I understand that the parties have already agreed to a division of property.

[13] I have agreed, if the parties wish, to attempt to assist the parties to settle their differences in a case conference scheduled for Thursday August 13 at 10 am. If the counsel for the father in the Tunisian proceedings wishes to participate in this conference, they would be most welcome to do so.

[14] Although this matter was scheduled as a bilingual matter, both counsel made all submissions in English and neither speak French. I did address the father in French, but as this is a motion he was present today to observe only. The conference, if held, can be bilingual and an interpreter should be present.

[15] No submissions were made by the parties with respect to costs. As the wife was successful in resisting this motion, it is appropriate that costs be awarded, payable by the father in the amount of $3000.00 inclusive of HST.

J. Wilson J.

Date: August 10, 2020