COURT FILE NO.: FS-17-299-00

DATE: 2020 01 24

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SABA AMBREEN, Applicant

AND:

MUHAMMAD ALI, Respondent

BEFORE: Justice Irving André

COUNSEL: R. Tekriwal, for the Applicant

C. Lyle, for the Respondent

HEARD: November 12, 2019, at Brampton

ENDORSEMENT

[1] The Applicant Saba Ambreen brings an application for custody and other corollary relief. The Respondent Muhammed Ali, who resides in Pakistan and who has not attorned to this jurisdiction, has brought a motion seeking (1). a dismissal of Ms. Ambreen’s application on the ground that the Pakistani courts have already exercised jurisdiction over the relief sought by the applicant and (2). an order for the three children of the marriage to be apprehended and returned to his care and control in Pakistan.

BACKGROUND FACTS

[2] Both parties are originally from Karachi, Pakistan.

[3] Mr. Ali moved to Canada in 2001 to take up employment as a database administrator with Blackberry Ltd. He subsequently became a permanent resident in Canada and then became a Canadian citizen in 2005.

[4] The parties were married in Canada on September 18, 2003, in accordance with Pakistan and Islamic law. Ms. Ambreen migrated to Canada on April 16, 2004.

[5] The parties have three children, namely Mishaal Ali, born on December 2, 2004; Nimra Ali, born on November 13, 2006; and Hamza Ali, born on March 10, 2011.

[6] Mr. Ali was laid off by Blackberry on July 31, 2013. The parties moved back to Karachi in September 2013. Mr. Ali maintains that this was a permanent move while Ms. Ambreen deposed that Mr. Ali told her that the trip was for a period of six months.

[7] On January 11, 2014, Ms. Ambreen left the parties’ Karachi home along with her children and possessions and moved into the home of her maternal grandparents. Mr. Ali deposed that Ms. Ambreen did so on her own volition. Ms. Ambreen, however, claims that Mr. Ali evicted her from the matrimonial home after physically and mentally abusing her on a regular basis to obtain her consent to his second marriage and to force her to file for a divorce in Pakistan.

COURT APPLICATIONS IN PAKISTAN

[8] On January 14, 2014, Mr. Ali applied to the Karachi courts for a restitution of his “conjugal rights” with Ms. Ambreen.

[9] On January 21, 2014, Mr. Ali brought a “guardianship” application with the Karachi courts for custody of the children of the marriage in the event that the parties failed to reconcile.

[10] On February 7, 2014, Ms. Ambreen brought a “maintenance” application for child and spousal support and on April 5, 2014, brought a “guardianship” application for custody of the parties’ three children.

[11] On October 21, 2014, Ms. Ambreen filed two applications with the court in Karachi seeking court orders making her the “guardian” of the children and seeking “maintenance” from Mr. Ali. She also sought the return of the children’s “misplaced” documents and Mr. Ali’s consent to obtain passports for the children.

[12] On August 1, 2015, the court ordered Mr. Ali to pay 10,000 rupees per month in support for the parties’ three children. The court made no order regarding the return of the children’s travel documents or Mr. Ali’s consent to obtain the children’s passports.

[13] Ms. Ambreen maintains that Mr. Ali seized the children’s passports which she tried to obtain for three years. She sought help from the Canadian High Commission in Pakistan but was told that she needed to have a final sole custody order before she could obtain new passports for the children. She deposed that she participated in court proceedings in Pakistan to satisfy this requirement of the Canadian High Commission.

[14] Ms. Ambreen returned to Canada in 2017 without the children. She sought legal advice and the help of a Canadian government organization to obtain new passports for the children. She returned to Pakistan in April 2017 and then moved to another city called Lahore with the children.

[15] In June 2017, Ms. Ambreen brought an application in Lahore seeking similar relief to that which she had sought in the Karachi courts. As part of her evidentiary record, she relied on an affidavit purported to be her landlords in which he swore that Ms. Ambreen had been his tenant for the past three years, despite the fact that she had only moved to Lahore a couple months previously. The Lahore court granted Ms. Ambreen custody of the three children and also ordered that:

a. Ms. Ambreen was to produce the children before the Lahore court when asked to do so; and

b. Ms. Ambreen was not to permanently remove the children from the jurisdiction of Lahore.

[16] Mr. Ali brought another application on September 25, 2017, for custody of the three children.

[17] Ms. Ambreen migrated to Canada on September 29, 2017, in violation of the court order dated July 29, 2017.

[18] On November 8, 2017, Ms. Ambreen then filed an application in the Superior Courtof Justice in Brampton seeking the same relief she had sought in the Karachi and Lahore courts.

[19] On May 30, 2018, the Lahore court made an order suspending its guardianship order dated July 29, 2017. It also made the following order: “This Order shall have no effect on any other proceedings of any court of competent jurisdiction.”

[20] Ms. Ambreen received passports for the children in September 2018 and shortly thereafter, returned to Canada with them. She has lived in Mississauga with the children ever since.

POSITION OF THE APPLICANT

[21] Ms. Ambreen’s counsel submits the following:

(1) There is no guardianship order currently in place in Pakistan in favour of any party. However, there are pending proceedings in the courts of Karachi and Lahore instituted by Mr. Ali. The only order that is somewhat closer to a custody order in Pakistan is the First Court Order dated September 22, 2014 pursuant to which the custody and care of the children was given to the applicant.

(2) There has been a material change in the circumstances because the children are now residing in Ontario.

(3) Mr. Ali has not applied for the return of the children to Pakistan under the Hague Convention on Civil Aspects of International Child Abduction but through his pleadings filed at the guardianship court, Lahore, which has no jurisdiction to order the return of the children from Canada.

(4) The children’s habitual residence is Ontario because:

a. The parties and the children were habitual residents of Ontario before they went to Pakistan for a temporary visit;

b. After landing in Pakistan the respondent confiscated the children’s passports so they could not return to Ontario with the applicant;

c. The applicant participated in the court proceedings in Pakistan only to obtain a sole custody order so she could receive the children’s passports from the Canadian High Commission in Islamabad and return with them to Ontario;

(5) If this Honourable Court finds that the children’s habitual residence is not Ontario then according to the criteria mentioned in s. 22(1)(b) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (‘CLRA’), the applicant requests this Honourable Court to assume jurisdiction because:

a. The children were physically present in Ontario at the commencement of the application for the custody order.

b. Substantial evidence concerning the best interests of the children is available in Ontario. The children are living in a safe and stable environment in Mississauga, Ontario, are attending school and have the full support of their mother and maternal relatives.

c. There is an application for guardianship/custody of the children pending in Karachi that was brought by the respondent in September 2017 and the herein Ontario proceedings were filed in November 2017. The applicant submits that this Honourable Court must assume jurisdiction in the best interests of the children.

d. No extra-provincial order in respect of custody of or access to the children has been recognized by a court in Ontario.

e. The children have a real and substantial connection with Ontario because they were born in Ontario, started schooling here and spent the majority of their lives with both parents in Ontario. They were forced to live in Pakistan because Mr. Ali had confiscated their passports, which were only reissued in September 2017.

f. On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario because the respondent has ample funds to participate in the Canadian proceedings and exercise his access rights whereas the applicant does not have financial resources to participate in the Pakistani proceedings.

(6) The laws of Canada with respect to the determination of custody, access and support are not similar to those of Pakistan.

(7) The laws of Pakistan do not recognize a spouse’s right to equalization of net family properties.

(8) The marital property issues of the parties must be determined by this Honourable Court because Ontario was the parties’ last common habitual residence.

(9) The children are physically present in Ontario and they shall suffer serious harm if they are removed from Ontario by Mr. Ali (after receiving a favourable custody order from Pakistan). Mr. Ali permanently resides with his second wife and their children in Pakistan and has not exercised his custodial rights since January 2014, i.e., after the separation of the parties. It is in the children’s best interests to continue residing with their mother in Ontario.

(10) The applicant is challenging the sale of the parties’ last owned residence in Mississauga, Ontario, because her consent to that transaction was fraudulently obtained by the respondent. Therefore, the only court that has jurisdiction to hear this issue is this Honourable Court.

RESPONDENT’S POSITION

[22] Mr. Lyle submits that the court should dismiss the application for want of jurisdiction for the following reasons:

(1) There is a multiplicity of past and ongoing “same issue” applications before the Lahore and Karachi courts in Pakistan. Assuming jurisdiction over this matter could result in conflicting orders which could bring the administration of justice into disrepute.

(2) An appeals court in Karachi has already dismissed an appeal filed by the applicant based on the equitable “clean hands” doctrine.

(3) The applicant is in contempt of a valid court order requiring her not to remove the children from the jurisdiction without the court’s consent.

(4) The applicant’s claim that she did not attorn to the jurisdiction in Pakistan has no merit given that she initiated custody applications both in Karachi and in Lahore.

(5) The applicant’s motion should be dismissed under the equitable “clean hands” doctrine given that she both misled the Lahore court and acted in contempt of an order from that court.

(6) Section 22 of the CLRA provides the statutory justification to recognize the jurisdiction of the Pakistani courts and to discourage the abduction of children as an alternative to the determination of custody rights.

(7) The children were habitually resident in Pakistan from September 2013 to September 2017 and pursuant to s. 22(2) of the CLRA, the children were not habitually resident in Ontario given their arrival there on September 29, 2017.

(8) The criteria set out in s. 22(1)(b) of the CLRA for a court to assume jurisdiction in this case have not been met, specifically, s.22(2)(b)(ii), (iii) and (vi).

(9) The balance of convenience does not favour Ontario as the proper jurisdiction.

(10) Section 23 of the CLRA, which requires the court to exercise its jurisdiction in certain circumstances is not applicable in this case.

GOVERNING PRINCIPLES

[23] In Ontario, the CLRA provides as follows:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

Serious harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

42 (1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,

(a) the child is habitually resident in Ontario at the commencement of the application for the order; or

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,

(iii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iv) that the child has a real and substantial connection with Ontario, and

(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[24] Section 19 of the CLRA sets out the purposes of Part III, which are:

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.

ANALYSIS

[25] Pursuant to s. 22(1) of the CLRA, a determination of whether this court has jurisdiction to make orders for custody and other collateral issues involves an analysis of the following questions:

(1) Were the children of the parties habitually resident in Ontario at the commencement of the application for the order?

(2) If not, should this court exercise jurisdiction to make an order for custody of the children and ancillary orders given that:

a. The children were physically present in Ontario at the commencement of the application for the order;

b. Substantial evidence concerning the best interests of the children is available in Ontario;

c. No application for custody of or access to the children is pending before an extra-provincial tribunal in another place where the child is habitually resident;

d. No extra-provincial order in respect of or access to the children has been recognized by a court in Ontario;

e. The children have a real and substantial connection with Ontario; and,

f. On a balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Were the children of the marriage habitually resident in Ontario when Ms. Ambreen commenced her application for custody?

[26] In my view, they were not. Ms. Ambreen lived in Pakistan from 2013 to 2017 and visited Canada two or three times within this period without the children. She migrated to Canada on September 29, 2017 and filed her application for custody of the children and other relief on November 8, 2017. The evidence does not support a conclusion, pursuant to s. 22(2)(b) of the CLRA, that Ms. Ambreen took the children to Canada “with the consent, implied consent or acquiescence of Mr. Ali or under a court order. On the contrary, Mr. Ali was unaware that Ms. Ambreen had returned to Canada with the children. Furthermore, at the time she did so, she was subject to a July 29, 2017 court order not to leave Lahore with the children, except pursuant to a court order.

JURISDICTION PURSUANT TO s. 22(1)(B) OF THE CLRA

The Law

[27] All six conditions must be established on a balance of probabilities for the court to assume jurisdiction. See Murray v. Ceruti, 2014 ONCA 679, 325 O.A.C 300, at para. 24; Turner v. Vian, 2002 CanLII 41671 Ont. C.A., 26 R.F.L. (5^th) 440, (Ont. C.A.) at para. 9.

[28] Condition One: Were the children physically present in Ontario at the commencement of the application for the order?

[29] There is no dispute that they were.

[30] Condition Two: Is there substantial evidence concerning the best interests of the children available in Ontario?

The Law

[31] In Murray v. Ceruti, at paras. 25-27, the court noted that this criterion does not require a comparison between the two jurisdictions.

[32] In Gilbert v. Gilbert (1995), 1985 CanLII 4967 (ON SC), 47 R.F.L. (2d) 199 (Ont. U.F.C.), at para. 25, the court noted that to meet this requirement independent witnesses are often the deciding factors in the case [and] that the court looks for non-aligned witnesses who can give the court an objective view of the children.

Analysis

[33] There is a paucity of evidence from “non-aligned” witnesses in this matter who can give an objective view of the children. However, the affidavits of both parties indicate that each party has many relatives in Karachi and in Mississauga. The children lived in Karachi from 2013 to 2017 and to that extent, it can be assumed that there is substantial evidence regarding their best interests in Pakistan.

[34] However, the children lived in Ontario from 2004 to 2013. They have also lived here from September 2018 to the present. They attend school, are engaged in sports, and have friends and many relatives in Ontario. Since 2004, they have lived in Pakistan for four years and in Ontario for over eleven years. Evidence concerning their present well being would be available in Ontario rather than in Pakistan.

[35] Mr. Ali’s counsel submits that the most substantial and important evidence concerning the children is in Pakistan. He submits further that the majority of the evidence concerning the children’s lives, such as evidence about the parties’ marriage, subsequent divorce, multiplicity of family court proceedings, as well as evidence concerning the children’s schooling, health, extended family members and friends and the mother’s abuse of the children, are all in Pakistan.

[36] A ruling that Pakistan should have jurisdiction over the matter is not a prerequisite for the parties to obtain court, school or medical documents. Both parties have been able to obtain court documents from Pakistan to support their respective positions. Similarly, it should not be difficult to obtain the children’s school and health records from Pakistan, if required.

[37] Mr. Lyle submits that Pakistani courts, like their Canadian counterparts, apply the “best interests” test to make decisions regarding custody and access and accordingly, this court should have no reservations that this test will be applied if Pakistan, rather than Canada, retains jurisdiction in this matter.

[38] While this test may well be applicable in Pakistani courts, evidence elicited by both parties in this matter indicates that there are significant differences between the two jurisdictions in the area of family law. For example, a husband, under Islamic Law, can marry up to four wives as long as he has the consent of the first wife and as long as he has the means to support them. Second, it appears that Mr. Ali brought an application in a Karachi court for an order based on the doctrine of “restitution of conjugal rights” which is unknown in Canadian family law. Furthermore, a court decision ordered Mr. Ali to pay child support according to his means rather than a specific sum as would be the case in Canada. These three examples collectively suggest that Pakistan is a patriarchal society which is a factor in the determination of family disputes. To that extent, I cannot conclude, as Mr. Ali’s counsel urges me to do, that a finding that the Pakistani courts should have jurisdiction over this matter is in the best interests of the children.

[39] I therefore conclude that substantial evidence concerning the best interests of the children is available in Ontario.

[40] Condition three: Is there a pending application for custody in Pakistan?

[41] Ms. Ambreen’s counsel concedes that there are pending proceedings in the courts of Karachi and Lahore. The July 29, 2017 order of custody in favour of Ms. Ambreen made by the Lahore court has been suspended. Mr. Ali has filed an appeal of the decision of the Karachi court which is still pending. The fact that Ms. Ambreen has opted not to participate further in the proceedings of these courts does not negate the fact that these proceedings are still pending and precede the application commenced by Ms. Ambreen in Ontario in November 2017.

[42] Do these pending court matters in Pakistan disqualify this court from exercising jurisdiction over Ms. Ambreen’s application for similar relief? In my view, they do not for the following reasons.

[43] First, if I accept Ms. Ambreen’s version of events concerning why she remained in Pakistan and why she initiated legal action to gain custody of her children, she should not be bound, in my view, by the decision of the Karachi and/or Lahore courts.

[44] Ms. Ambreen has deposed that she went to Pakistan in September 2013 at the request of Mr. Ali for a six month sojourn to meet their families. Soon after their arrival, Mr. Ali took possession of their travel documents and advised her that he had arranged to marry another person, without her knowledge, and intended to keep the children and herself in Pakistan on a permanent basis. Mr. Ali forced her to consent to his second marriage and then applied for a divorce in Pakistan. He then started to verbally and physically abuse her to force her to give in to his demands. He forced her to leave his house on January 11, 2014 and commenced an application in the Karachi courts for an order granting him “guardianship of the children” and “restitution of conjugal rights”. She took refuge in her parents’ home and contacted the Canadian High Commission in Islamabad, Pakistan, and sought help for the issuance of her children’s passports. The Commission advised her that without a “sole custody order”, they could not provide her with travel documents for the children. She participated in the court proceedings in Pakistan against her will for the sole reason of obtaining a court order granting her sole custody of the children to enable her to leave Pakistan with them.

[45] On September 22, 2014, a Karachi court settled the applications filed by both parties and ordered inter alia:

(i) Mr. Ali to cooperate with Ms. Ambreen in obtaining duplicate birth certificates and passports for the children;

(ii) Ms. Ambreen to have custody of the children;

(iii) Mr. Ali to arrange a separate house for Ms. Ambreen and the children; and,

(iv) Mr. Ali to provide support for Ms. Ambreen and the children “according to defendant’s means”.

[46] In his affidavit, Mr. Ali disputes Ms. Ambreen’s version of events. He denies that he confiscated his children’s travel documents and points to court documents in which Ms. Ambreen agreed with the courts that they had been “misplaced” or “untraced” rather than confiscated. He maintains that Ms. Ambreen consented to his second marriage.

[47] I have reason to doubt Mr. Ali’s version of events. He stated at paragraph 22 of his September 15, 2018 affidavit that at the time of his second marriage, he was already separated and Ms. Ambreen had given her consent to his second marriage. Had she done so, why would she have refused to resume her relationship with him and not comply with the “restitution of conjugal rights” application sought by Mr. Ali? Second, Mr. Ali wanted custody of the children. It is passing strange that in the face of Ms. Ambreen’s own desire to be granted custody of them, the children’s travel documents would simply become “untraced” or “misplaced”. Ms. Ambreen would have had no option but to petition a court for Mr. Ali’s “cooperation” for her to obtain these documents rather than seeking his assistance to obtain them.

[48] Furthermore, emails attached to Ms. Ambreen’s affidavit dated September 3, 2018 cause me to question Mr. Ali’s contention that he had married for a second time before the separation from Ms. Ambreen and that she had given her consent to his second marriage. In an email to the Canadian High Commission in Islamabad dated January 31, 2014, Ms. Ambreen complained that “now he want to second marry he already had planed (sic) an other marry”. She also complained that “i was living with him but his plan is that sign the second marry papers other wise leave my house, now im leaving with my mom…” She also stated that Mr. Ali told her that “if you try to go Canada I will make it prison for you”.

[49] In my view, Ms. Ambreen sought legal redress in Pakistan because she had concluded, after hearing from the Canadian High Commission, that that was the only way she could obtain the necessary paperwork to enable her to leave Pakistan with her children. Indeed, she went to the Canadian High Commission soon after receiving an order from the Lahore court on July 29, 2017, to obtain passports for her children.

[50] Finally, the assumption of jurisdiction by this court does not raise the possibility of contradictory rulings regarding the relief sought by Ms. Ambreen. In suspending its order dated July 29, 2017, the Lahore court noted that: “This order shall have no effect on any other proceedings of any court of competent jurisdiction”.

[51] For the above reasons, this requirement does not prevent this court from exercising jurisdiction over this matter.

[52] Condition four: Is there an extra-provincial order in respect of custody and access to that child that has been recognized by a court in Ontario?

[53] The answer to this question is no. Therefore, this requirement has been met by Ms. Ambreen.

[54] Condition five: Do the children have a real and substantial connection with Ontario?

[55] In my view, they do. They lived in Ontario from 2004 to 2013 and from 2017 to the present. They have relatives here on their mother’s side and on their father’s side. They attend school here and a disruption of their attendance at school would not be in their best interests. Finally, they are all Canadian citizens.

[56] For the above reasons, this requirement has been met by Ms. Ambreen.

[57] Condition six: On a balance of convenience, is it appropriate for jurisdiction to be exercised in Ontario?

The Law

[58] In Solem v. Solem, 2013 ONSC 1097, at para. 64, the court stated that: “[w]here the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction.”

[59] Transferring this matter to Pakistan would involve disrupting the school attendance of the children and forcing Ms. Ambreen to seek accommodation in that country. This may prove to be onerous given that Ms. Ambreen is enrolled in a school program and is currently receiving state assistance. Furthermore, if the involvement of the Office of the Children’s Lawyer is warranted, the balance of convenience would favour this jurisdiction. While Mr. Ali may be required to rely on evidence of persons from Pakistan but this can be met either by video conferencing or affidavit evidence.

[60] In my view, this requirement has been met by Ms. Ambreen.

CONCLUSION

[61] Mr. Ali’s motion is dismissed. Ms. Ambreen is allowed to proceed with her motion for custody and child support in this jurisdiction and other ancillary relief including spousal support and the equalization of net family property.

[62] Mr. Ali is granted sixty (60) days from this date to enable him to file his responding materials.

COSTS

[63] Costs are reserved to the motions judge.

André J.

Date: January 24, 2020