COURT FILE NO.: FS-20-51

DATE: 2020 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.

Applicant

– and –

F.

Respondent

Bryan R.G. Smith/Lindsey Love-Forester/Andrew Lokan, Counsel for the Applicant

Fareen L. Jamal/Fadwa Yehia/Edward C. Conway, Counsel for the Respondent

Estée Garfin/Hera Evans, Counsel for the Attorney General of Ontario, Intervenor on the Constitutional Application

HEARD: November 9, 10, 12, 13, 16, 17, 18, 19, 20, 24 & 26, 2020

REASONS FOR JUDGMENT

Table of Contents

I. Introduction. 3

The Dilemma. 3

The Children, the Parties, and the Intervenor 3

The Issues. 3

The Framework for the Judgment 3

The Trial 5

The Undisputed Facts. 5

The Positions of the Parties on the Family Law Issues. 9

II. Analysis. 13

Part One: Summary of the Trial Evidence. 13

The Parties. 13

The Father 13

The Mother 20

The Lay Witnesses. 39

Nageen S. – Friend of the Parties, formerly in Dubai – Witness for the Father 39

Mary Ann R. – Nanny in Dubai – Witness for the Father 40

Afrah S. – Friend of the Parties in Dubai – Witness for the Mother 47

Maternal Grandmother (F.’s Mother) – Witness for the Mother 48

The Experts. 50

Diana Hamade – Expert on Family Law in Dubai – Witness for the Father 50

Elena Schildgen – Expert on Family Law in Dubai – Witness for the Mother 56

Carol-Jane Parker – Expert on Primary Caregiver-Infant Separation – Witness for the Mother 83

Part Two: Credibility Assessment and Findings of Fact 91

How to Assess Credibility. 91

Credibility of the Lay Witnesses, Besides the Parties. 95

Credibility of the Parties. 96

Findings of Fact Arising from the Evidence of the Lay Witnesses. 103

Credibility of the Experts, and Related Findings of Fact Arising from the Expert Evidence. 104

Part Three: The Law.. 108

Part Four: The Law as Applied to our Facts. 134

Issue Number 1 – Should this Court Assume Jurisdiction?. 134

Section 22(1)(a) 134

Section 22(1)(b) 135

Section 23. 140

Attornment 143

Issue Number Two – Should the Children be Returned to Dubai?. 144

Parens Patriae Jurisdiction. 146

Part Five: Issue Number Three – the Constitutional Application. 147

The Position of the Mother (the Applicant on the Constitutional Question) 153

The Position of the Father (the Respondent on the Constitutional Question) 165

The Position of the Attorney General of Ontario (the Intervenor on the Constitutional Question) 167

Reply Submissions by Mr. Conway, on Behalf of the Mother 171

The Law as Applied to our Case: Analysis of the Constitutional Issues. 172

This Court’s Answers to the Constitutional Questions Raised in the Mother’s Application 177

Conclusion on the Constitutional Application. 178

Section 1 of the Charter. 178

Part Six: this Court’s Order 178

Part Seven: Ancillary Issues – Initials for the Parties and the Children, and a Temporary Sealing Order 180

Conlan J.

I. Introduction

The Dilemma

[1] There are two very young children living in Canada with their mother. Should they be ordered to return to Dubai, United Arab Emirates, where their father lives?

[2] That is the most pressing question that confronts this Court.

The Children, the Parties, and the Intervenor

[3] The two children are a girl, Z. (four years old), and a boy, E. (one year old). They are Canadian citizens. The father, N., is 39 nine years old, was born in Pakistan, has lived in Dubai since January 2008, was married to the mother in February 2012, lived with the mother (and then the children) in Dubai from the time of marriage until June 2020, and works for a bank. He is neither a citizen of the United Arab Emirates nor Canada. The mother, F., is 30 years old, was born in Pakistan, is a Canadian citizen, and lived in Canada with her family from the age of 15 years until after her marriage to N. in February 2012.

[4] The Attorney General of Ontario is involved in this case as an Intervenor, as there is a Constitutional Application that has been brought by the mother, F.

The Issues

[5] There are three major issues to be decided by this Court: (i) should this Court assume jurisdiction over the custody and access matters, and (ii) should the children be returned to Dubai, and (iii) is the “return order” provision of Ontario’s child welfare legislation unconstitutional?

The Framework for the Judgment

[6] Of course, there are many sub-issues that this Court has been asked to decide. Often, trial judges determine only those questions that they must decide in order to dispose of the case. Here, however, in an effort to try to be as helpful as possible to the appellate court(s), I will endeavour to address everything.

[7] The Attorney General of Ontario is correct that there is authority for the proposition that courts should not decide legal issues, particularly Constitutional ones, that are not necessary to a resolution of the case. Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97, at paragraphs 6 and 9; Kitkatla Band v. British Columbia, 2002 SCC 31, at paragraph 46; R. v. R.K., 2005 21092 (ON CA), [2005] O.J. No. 2434 (C.A.), at paragraph 59; and Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, at paragraph 39.

[8] In this case, though, both parties want this Court to address everything. More important, in this particular case, it is impractical to not deal with the Constitutional issue, regardless of the disposition of the first two issues described above. Specifically, if this Court declines to assume jurisdiction (issue number one) and determines that a return order is appropriate (issue number two), then it is necessary that I continue the analysis to address the Constitutional question because the return order would, as counsel for the mother submit, be subject to that Constitutional analysis. On the other hand, if this Court does assume jurisdiction (issue number one) and grants custody to the mother, thereby denying the father’s request for the return order (issue number two), then on appeal by the father (which appeal I think it is safe to say would be a certainty), if it turns out that I erred on the first two issues there is a risk that the case would have to be sent back to the Superior Court of Justice for analysis of the Constitutional issue in the event that this Court had ignored it. That would clearly not be in the best interests of these two young children. There is a real urgency to the final disposition of this case.

[9] In the “Analysis” section of these Reasons, I intend to divide the discussion into seven parts. I will first summarize the evidence adduced at trial, focussing on that which is controversial between the witnesses. I will then assess the credibility of the witnesses and make findings of fact on disputed matters. Next, I will deal with the law, both legislative and jurisprudential. Then I will apply the law to the facts as I have found them to be and answer the first two issues described above - (i) whether this Court has jurisdiction over the custody and access matters, and (ii) whether the children should be returned to Dubai. Next, I will deal with the third issue - (iii) whether the “return order” provision of Ontario’s child welfare legislation is unconstitutional. After that, I will set out the substantive Order being made by this Court. Finally, I will deal with the ancillary issues, for example, the request for a temporary sealing Order to have the record refer to the parties and the children by initials only.

The Trial

[10] The trial took place entirely online, via Zoom. It lasted eleven days, including the final submissions by counsel. Transcripts were obtained by counsel and were provided to the Court. Submissions were delivered both in writing and orally, and there were two rounds of submissions by counsel (the first dealing with the family law issues, and the second with regard to the Constitutional question). The days were long, partly to accommodate witnesses testifying from Dubai (with a substantial time difference between there and Ontario), often starting at 9:00 a.m. and not ending until well after 4:30 p.m.

[11] The father’s case was presented first, as he is the Applicant in the Ontario proceeding. The mother’s case followed, as she is the Respondent in the Ontario proceeding. Each party testified at trial. Each party called lay witnesses at trial. Each party called expert evidence at trial; the father called an expert on family law in Dubai, while the mother called two experts – one on family law in Dubai, and the other on the potential impact on these children, and on infants generally, from being separated from their primary caregiver. Approximately forty exhibits were filed at trial, many quite dense. There were extensive read-ins done from the prior out-of-court questioning of the parties, and very extensive read-ins done from the father’s questioning as part of the mother’s case.

[12] I would like to sincerely thank all counsel and the Court staff for making the trial quite seamless, as well as the trial management judge, Justice Kurz, for helping to get the case ready for trial in record-time (within just a few months of its commencement in Ontario).

[13] All of the lawyers involved in the trial were exceptional; this Court is grateful for their assistance.

The Undisputed Facts

[14] In the father’s written closing submissions, at tab A, at page 72, there is a statement of undisputed facts. In Ms. Jamal’s oral closing submissions delivered on November 24, 2020, counsel indicated that only paragraph 16 therein was objected to by the mother, and only in small part (whether a property in Dubai was owned or rented). Thus, as it is quite helpful to the reader, the entire 26-paragraph statement is reproduced below, and I adopt it as accurate, including paragraph 16 therein.

1. The Father was born in Pakistan in 1981. He is 39 years old. He moved to Dubai, in 2008 and has resided there ever since.

2. The Mother was born in Pakistan in 1990. She is 30 years old. She moved from Pakistan to Canada with her parents in 2005, at the age of 15.

3. The parties are Shia Muslims.

4. The Mother lived in Ontario for 7 years from 2005 until 2012. Her parents still live in Milton, Ontario.

5. The Father and the Mother were married on February 11, 2012, in Lahore, Pakistan. It was an arranged marriage.

6. In February 2012, the Mother joined the Father in Dubai, UAE. They have lived together for 8 years in Dubai – their entire married lives.

7. Over their eight years of marriage the Mother lived in Dubai and spent approximately 3.25 weeks per year in Ontario.

8. The Father vacationed in Ontario for a total of approximately 9 weeks over those 8 years.

9. The Father is employed by an international Bank in Dubai, as an Executive Director in the Supranational Sovereign and Agencies Debt Capital Markets Team.

10. The Mother completed a Bachelor of Commerce Degree in Accountancy in Dubai in 2014, and worked in Dubai at NES Global Talent and at Boulevard One (a fashion exhibition company) at various times between her graduation and 2019.

11. The parties’ daughter, Z. was born in Ontario. Z. has no special needs. Z. is a Canadian citizen.

12. Their son E. was born in Dubai. E. has no special needs. E. is a Canadian citizen. Before the Mother travelled to Ontario in June 2020, E. had never been to Ontario.

13. The parties had intimacy and physical compatibility issues from the outset of the relationship. Both children were conceived through IVF procedures at home.

14. In March 2013 the parties purchased a $500,000 property on Alexander Crescent in Milton, Ontario which was registered in the Mother’s name. The property was rented and the rental income was applied to the mortgage. They listed this property for sale on or about July 20, 2019: it sold for $750,000 and the net sale proceeds of sale were paid into the Canadian account for use toward future residential investments. The parties never lived in this property.

15. In January 2020, the parties purchased a home located on Trico Drive in Cambridge with a closing date in May 2020. The parties never lived in this property.

16. The Father owns a property in Dubai purchased in 2014. The parties lived in that property from 2014 until September 2019. Z. also lived in that property from her birth until September 2019.

17. The parties rented a villa, rather than reinvesting in a larger property in Dubai. They moved in September 2019 to Villa 40, Splendor Villas, Al Safa 1, Dubai. Z. lived in the villa from September 2019 to June 19, 2020. E. lived in the villa from his birth to June 19, 2020.

18. On June 19, 2020, the Mother travelled to Ontario with Z. and E., ostensibly for a four-week trip to visit her parents, as she had done for differing lengths of time in most years since 2012.

19. Before leaving Dubai, the Mother told the Father that this trip was particularly important because two of her sisters would be travelling to Ontario, from the U.K. and Saskatoon, respectively, at the same time, for a family gathering that would include Z. and E.’s cousins.

20. The Mother purchased return air tickets, and was due to return on or about July 19, 2020.

21. The Father consented to the trip on the basis that the Mother and the children would be back in four weeks. He did not at any time consent to the Mother removing the children to Ontario on a permanent basis.

22. On or about July 2, 2020, the Mother informed the Father that she did not intend to return to Dubai and that she intended to stay in Ontario with the children.

23. The Father objected and did not acquiesce of the Mother’s retaining of the Children in Ontario.

24. The Mother and the Children have been in Ontario since June 19, 2020.

25. The Mother cancelled Z.’s enrollment to attend the Jumeirah English Speaking School (“JESS”) in Dubai in September 2020 without the Father’s knowledge or consent.

26. The Mother registered Z. in Montessori Country School in Milton, Ontario without the Father’s consent.

[15] To that list of undisputed facts, I would add the following observations, all of which are incontrovertible. Both N. and F. are loving, caring parents. There is not a hint of evidence that either one has ever been abusive or neglectful of the children. At trial, they both behaved politely and respectfully of each other and of the Court, the Court staff, and all counsel. Their union may be over, but this Court has much respect for them both as very good parents.

The Positions of the Parties on the Family Law Issues

[16] The positions of the parties, and of the Attorney General of Ontario, on the Constitutional question will be dealt with later in these Reasons. The positions of the parties on the ancillary issues will also be left for later in these Reasons. For now, it is sufficient to set out, very briefly, the positions of the parties on the family law issues.

[17] On the first issue, that is whether this Court should assume jurisdiction over the custody and access matters, the father says “no”, while the mother says “yes”.

[18] On the second issue, that is whether this Court should order that the children be returned to Dubai, the father says “yes”, while the mother says “no”.

[19] The draft Final Order being sought by the father is attached as tab B to the written closing submissions filed on his behalf. Paragraphs 1 through 10 of that document are set out below (note that clause 1 has been amended herein to remove the names and birthdates of the two children).

1. The Respondent Mother wrongfully removed from Dubai, UAE and/or is wrongfully retaining in Ontario, the children, Z., and E. (the “children”).

2. The children shall forthwith be returned to Dubai, UAE.

3. If the Respondent Mother does not return to Dubai, the children shall forthwith be in the Applicant Father’s care and control for the limited purpose of the children being able to travel with him to Dubai, UAE.

4. The consent of the Respondent Mother for the Applicant Father to travel with the children for such purposes is hereby dispensed with.

5. The Respondent Mother shall forthwith deliver to the Applicant Father all of the children’s travel documentation and medical records in her possession, including but not limited to their passports, Emirates Identification cards, and immunization records.

6. The Respondent Mother is prohibited from removing the children from Ontario except for the purpose of returning the children to Dubai.

7. The Halton Regional Police, the Peel Regional Police, and any other police force or other similar authority to whom the attention this order is brought are directed and authorized to enforce this order at any time, including times between 9:00 p.m. and 6:00 a.m. pursuant to s. 36 of the Children’s Law Reform Act. This term shall expire 6 (six) months from the date of this order, subject to further extension, if appropriate.

8. All claims made by the Respondent Mother in her Amended Answer are hereby dismissed.

9. In any publication in relation to these proceedings or release of any information to the public in this matter, the parties and the children shall be referred to and identified by their initials only. The Applicant shall be referred to as N. and the Respondent shall be referred to as F. The parties’ children shall be referred to by the initials of Z. and E. The title of proceedings shall be amended accordingly and all materials filed hereafter shall refer to the parties and their children as set out herein. The material filed with the court shall be sealed unless it has been replaced with materials referring to the parties and their children by their initials.

10. Costs to be determined following the receipt of written submissions on a timetable to be set by this Court.

[20] The draft Final Order being sought by the mother, filed together with the written closing submissions delivered on her behalf, clauses 1 through 29, is reproduced below (note that the names and birthdates of the children have either been removed or have been replaced with first initials, Z. and E., and the names of the parties have been replaced with first initials, N. and F., and note as well that some of the clauses deal with the Constitutional issues, however, for the sake of completeness the entire proposed Order is included below).

1. Ontario shall assume jurisdiction of the issues arising from the parties’ separation including custody and access to the children namely Z., a female child and E., a male child, (hereinafter collectively referred to as the “children”), as well as all other corollary relief sought by either party in these proceedings.

2. The Respondent Mother shall have sole custody of the children of the marriage, pursuant to the Children’s Law Reform Act.

3. The children shall continue to reside in the primary care of the Respondent Mother.

4. The Respondent Mother shall retain the children’s SIN cards, health cards, birth certificates and passports. The Respondent Mother will be responsible for renewal of Z. and E.’s documents as needed, and will provide a copy to the Applicant Father.

5. The parties shall be entitled to receive all information and/or documentation regarding the children from any third party professionals involved in their care and/or education including but not limited to documents/information from health care providers and/or educators.

6. The Applicant shall not remove the children from the Province of Ontario without the express written consent of the Respondent or further Court Order.

7. All parenting time shall be exercised in Ontario and will be limited to day visits. The day visit will take place between 7:00a.m. and 7:00p.m. each day (consecutively), unless otherwise agreed upon by the parties. The restriction to day visits is to account for E.’s breastfeeding schedule.

8. After November 2, 2022, parenting time may be exercised to include overnights and outside of Ontario, but within Canada. The Applicant Father will continue to be able to see the children for at least one (1) week per month, on dates and times to which the parties agree.

9. Visits can coincide with major holidays and/or breaks from school. F. will give priority to the Applicant Father during such holidays/breaks from school if they coincide with his travel plans to Ontario.

10. After November 2, 2026 the parties shall revisit the terms of parenting time with the Father for the purpose of reviewing the potential for travel outside of Canada to countries that are signatories to the Hague Convention.

11. The Father will provide the Mother with two (2) weeks’ notice in advance of his intention to travel to and spend time with the children which will include details of his travel itinerary, hotel accommodations and a contact number where he can be reached.

12. As a precondition of spending time with the children, the Father shall submit his passport and all related travel documentation with his solicitor. The solicitor will provide a confirmation email of receipt of the Father’s passport and travel documents in advance of any parenting time taking place.

13. The Applicant Father shall otherwise have daily video/telephone communication with the children twice a day (in the morning before school) and in the evening (after school).

14. The Applicant Father shall have parenting time with the children on alternating weekends from Friday after school until Monday drop off at school. In the weeks that the Applicant Father does not have the children for a weekend, he will have the children from Wednesday after school until return to school on Thursday morning. The chart below sets out the schedule for demonstrative purposes:

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week 1

F.

F.

F.

F.

F./ N.

N.

N.

Week 2

N./F.

F.

F./ N.

N./F

F.

F.

F.

15. Pick-ups and drop offs shall, as much as possible, be done at school/daycare. If pick-up or drop off cannot take place at the daycare/school it will take place at the Mother’s residence.

16. The parents shall equally share all school vacations and holidays in the event that the Applicant Father relocates to Ontario. This holiday time schedule is in addition to the regular residential schedule above and overrides the regular residential schedule in the event of a conflict. The parties shall attempt to resolve the holiday schedule by mutual agreement, failing which either party may seek the Court’s assistance.

17. Section 40(3) of the Children’s Law Reform Act cannot authorize the removal of the Applicant children from Ontario or Canada.

18. The Children’s Law Reform Act R.S.O. 1990, c.C.12 cannot authorize the removal of the Applicant children from Ontario or Canada.

19. The Superior Court of Ontario, operating under Ontario legislation, cannot remove a person from Ontario.

20. Section 40 (3), insofar as it purports to authorize the removal of a person from Ontario, breaches the section 6(1) constitutional right of the Canadian citizens Z. and E. to remain in Canada.

21. The Children’s Law Reform Act R.S.O. 1990, c.C.12 cannot authorize the removal of the Applicant from Canada, and any such authorization breaches the Applicants’ section 6(1) constitutional right to remain in Canada.

22. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 7 liberty interest of the Applicant Mother to the extent that the Mother’s right to maintain the primary caregiver bond with the child is interfered with by state action not in accordance with fundamental justice.

23. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 7 security of the person interest of the Applicant Z. to the extent that Z.’s right to maintain the primary caregiver bond with the primary caregiver is interfered with by state action not in accordance with fundamental justice.

24. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 7 security of the person interest of the Applicant E. to the extent that E.’s right to maintain the primary caregiver bond with the primary caregiver is interfered with by state action not in accordance with fundamental justice.

25. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 15 equality interest of the Applicant Mother to the extent that the Applicant Mother’s protected interest of maintaining her primary caregiver child bond, is interfered with by state action that is not applied to her in the same manner as custody-removal decisions are applied either in the case of other returns or other changes of custody.

26. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 15 equality interest of the Applicant Z. to the extent that the Applicant protected interest of maintaining the primary caregiver child bond, is interfered with by state action that is not applied to her in the same manner as custody-removal decisions are applied either in the case of other returns or other changes of custody.

27. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 15 equality interest of the Applicant E. to the extent that the Applicant protected interest of maintaining the primary caregiver child bond, is interfered with by state action that is not applied to him in the same manner as custody-removal decisions are applied either in the case of other returns or other changes of custody.

28. Section 40(3) Children’s Law Reform Act R.S.O. 1990, c.C.12 breaches the section 2(a) interest of the Applicant.

29. A timeline shall be fixed to address the corollary relief in this proceeding.

II. Analysis

Part One: Summary of the Trial Evidence

The Parties

The Father

[21] The following is a brief summary of the viva voce evidence of N. at trial. The reader must remember, and this Court has not forgotten, that part of the father’s evidence at trial was adduced in the form of affidavits (three of them) – exhibits 1, 2, and 3, sworn on August 6th, September 28th, and September 29th, 2020, respectively.

[22] N. is 39 years old. He was born in Pakistan and is a citizen of Pakistan. He has lived in Dubai, United Arab Emirates, since January 2008. He was married to F. in Pakistan in February 2012. Thereafter, they lived together, and later with the two children, in Dubai until F. came to Canada with the children in June 2020.

[23] In terms of F.’s parents who live in Milton, Ontario, in re-examination, N. stated that the parents do not get along. They argue frequently. There have been several separations between them. There is plenty of tension between them, according to N., mainly because F.’s mother is the breadwinner in the household.

[24] In cross-examination, N. acknowledged that neither he nor F. speaks Arabic, and neither one has any family in the United Arab Emirates. He further admitted that F. has ties to Ontario and that he has ten or twelve relatives, roughly, in the United States of America.

[25] Both N. and F. are Muslims. They are Shia (not Sunnis). In cross-examination, N. stated that F. is religious, while he is not.

[26] Both children were conceived through in vitro fertilization. In cross-examination, N. acknowledged that he and F. have not had sex or attempted to have sex since their honeymoon. He denied, however, that their union was devoid of love. In the past, he attended sex therapy, and the therapist recommended masturbation and the use of pornography. He also attended with two psychiatrists in the past, to deal with his inability to be intimate with his wife.

[27] After their marriage, N. and F. first lived in N.’s rented apartment in Dubai. Near the end of 2014, they moved to a property that he became the owner of (referred to at trial as “Executive Towers”). In September 2019, the family moved to where N. lives currently, a rented villa property.

[28] When asked by his lawyer to describe the two children, N. cried.

[29] The father works as executive director in a special unit of an international Bank, dealing with debt capital markets. He testified that his work schedule pre-COVID-19 had him outside of the home between 9:00 a.m. and 5:30 to 6:00 p.m., roughly, on weekdays. He also travelled quite often. For the past several months, however, because of the virus, he has been working from home. He stated that his employer has a policy that he and others will continue to work from home until July 2021. After that, he plans to work from home three days per week and travel less frequently.

[30] N. described Z.’s school in Dubai – the Jumeirah English Speaking School (“JESS”). He stated that it is a top school in Dubai, and that it has a very high international ranking, and that it is an International Baccalaureate (“IB”) World School.

[31] Many allegations made by F. about N. were put to N. in direct examination, and he denied them: that he is controlling; that he swears at her and uses profanity towards her; that he has been physically aggressive towards her (except when necessary, he stated, to rebuke her unwanted sexual advances); that he has forcibly confined her and/or controlled her movements around Dubai; and that he watched pornography.

[32] The issue of pornography was the subject of much cross-examination of N. by Mr. Conway. The father denied accessing “hard-core porn”, and he denied seeing hard-core porn during sex therapy. He stated that what he watched as part of the therapy were clips from movies or television shows, like Spartacus. Privately (not during a therapy session), he and F. tried watching soft porn together, just once. It did not work. They never tried it again, according to N.

[33] On his allegation that F. tried in the past to force herself on him sexually, N. admitted that he did not say that in any of his affidavit evidence.

[34] Other allegations made by F. about N. were put to N. in cross-examination, and he denied them as well, including that she was entirely dependent on him financially.

[35] In terms of any impression that may be left by F. that Dubai is some autocratic, patriarchal, closed, and intolerant society, N. denied that. He also denied that Dubai is a place where religious discrimination is a problem. Rather, he described Dubai as being a very interfaith and mixed religion society. Further, he denied that Dubai is a place where domestic violence is largely ignored by the authorities.

[36] In cross-examination, on the issue of discrimination, N. stated that he has actually had a couple of overt anti-Muslim racist experiences during his visits to Canada, one in Toronto and the other in Milton, Ontario.

[37] N. was asked in direct examination to talk about F.’s family in Canada visiting with F. in Dubai. He stated that F.’s family has done so, maybe around ten or twelve weeks over the time that F. has lived in Dubai.

[38] N. admitted that he and F. purchased properties in Ontario. N. stated that it was F. and her mother who controlled the processes of acquiring those properties. One was purchased in Milton, and it was sold in 2019. One was purchased in Cambridge, in F.’s name alone, and that is still owned today. N. testified that the properties were bought as investments (for rental income), and that neither he nor F. nor the children have ever stayed at them.

[39] N. denied that there was ever any plan for the family to live in Canada. He stated further that there is no option for him to work in Canada for his current employer. In cross-examination, he stated that his job is not easily transferable to North America, and that Canada is a “no” for him and his work. He does, however, have a multiple entry visa for Canada that is valid until 2021.

[40] In cross-examination, N. stated that Canada is not the only place that F. has talked in the past about wanting to, or at least being willing to, move to. Although Ontario is the place that she has family at, and although Ontario is the place that she spoke about the most, according to N., she also talked about moving to New York, London (England), Frankfurt, Johannesburg, Pakistan, Thailand, and Milan.

[41] N. described what happened leading up to F.’s trip with the children to Canada in June 2020. On June 6th, the couple had an argument. There was talk of a potential separation. Then, between June 7th and the 19th, things pretty much went back to normal. F. told N. that she wanted to come to Canada for a big family gathering. He was hesitant about that because of the virus, but he eventually agreed. F. and the two children left Dubai for Canada on June 19th, and return tickets for the three of them had been purchased in advance. N. stated that the trip was supposed to be a vacation and not a permanent relocation.

[42] In cross-examination, certain WhatsApp messages between the parties on June 7th were put to N. The father admitted that, in the said messages, F. stated that she wanted a separation – a divorce. She wanted to go. He said that she cannot leave with the kids.

[43] According to N., as soon as F. and the children arrived in Canada in June 2020, things were odd. It was hard for him to contact F. and the children. He found an empty safe at home that had housed important belongings that he suspected had been removed by F. before she and the children left Dubai.

[44] N. denied that he has contacted the police in Dubai, or elsewhere in the United Arab Emirates, about the mother having left the country.

[45] N. denied any intention on his part to move to Pakistan, which is a concern that has been raised by the mother.

[46] When asked in direct examination to outline his plan if F. and the children return to Dubai, N. stated that he wants something akin to joint custody. The children would live primarily with F. He would live separately. He would pay child and spousal support. Mary, the nanny, would continue to be a major part of the children’s lives. He also has family members who could help with the children if F. chooses not to return to Dubai but the children do return.

[47] N. was asked in direct examination to speak about the court proceeding that he started in Dubai. He stated that F. has not participated in that proceeding in any way. He said that, in the court papers that he filed, he asked for what we would call joint custody. The children would live with F., and she would be the custodian, and that would continue even after she remarries (if she does), and even after the children reach certain ages.

[48] N. stated that he made a detailed proposal, through his lawyers, with prejudice, and in writing (dated October 30, 2020), for the return of F. and the children to Dubai.

[49] This Court views the said proposal as being quite important, and thus, with reference to exhibit 6.5, pages 238-239, the entire content of the said document, below the subject line, is set out below.

Counsel, this letter is written with prejudice and will be referred to at trial and sets out N.'s commitments that he undertakes to put in place in the event that F. returns to Dubai to live the children.

These terms can be included as an order of in the Ontario Superior Court of Justice as a condition of your client returning, pursuant to s.40 of the Children’s Law Reform Act. Except for this limited purpose, this is not an attornment by N. to the Ontario Court.

N. undertakes as follows:

1. Prior to F.’s returning to Dubai to live with the children, N. shall vacate the home that the parties’ and the children lived in prior to F leaving Dubai. The contents of that property will remain at the property, subject to N. removing his personal items (clothing etc.). N. will tend to payment of all expenses for the property. F. can live with the children at the property until the property below (the “new property”) is purchased and is available for occupation by F..

2. Mary will continued to be employed to assist with the care of the children when they are at N.’s residence. Another nanny will be hired to assist with the care of the children at F.’s home.

3. Within 90 days of F. returning to Dubai, N. will purchase of a home in Dubai, with the value of up to 1,000,000 Emirati Dirham (AED). He will consult with F. with respect to the selection of that property and she can decide what property will be purchased. If she wishes to purchase a property that is worth in excess of AED 1,000,000, she can either finance that amount or make that contribution herself. If that property has been purchased before F. returns to Dubai with the children, she will move to and occupy that property, and N. will continue to occupy the current home.

4. Title to the new property will be taken in F.’s name, which will ensure her independent residency status as registered owner of land, but there would be a separate trust document that would confirm that she holds title in trust for the children, with the children having equal beneficial interest in the property. The children would be entitled to realize their beneficial interest upon the youngest of the children attaining the age of 18 years, or such other time as the parties mutually agree. If F. makes a financial contribution to the purchase of the property or has arranged financing of it then that will entitle her to a direct interest in the property in proportion to that contribution.

5. The arrangements for the parenting/custody/access of the children will be as set out in the draft agreement attached as Exhibit A to N.’s affidavit sworn September 28, 2020 except that where terms of paragraph 1-4 hereof conflict with the terms of the draft Agreement, paragraphs 1-4 hereof shall apply.

6. Financial provision for the children and F. will also be a set out in the Exhibit A to N.’s affidavit sworn September 28, 2020, except that where terms of paragraph 1-4 hereof, conflict with the terms of the draft Agreement, paragraphs 1-4 hereof shall apply.

7. In the alternative to paragraphs 5 and 6, if F. wishes to pursue her, rights entitlements and remedies in the court in UAE, with respect to custody / access / parenting / support issues /property, she may do so.

8. The terms herein will be made into a consent Order/Judgement issued by the Court in the UAE.

[50] When asked by his lawyer about how difficult it is for someone to get a visa (a residency permit) to live in the United Arab Emirates, N. replied that it is not difficult at all.

[51] In cross-examination, N. conceded that he has provided little financial disclosure in this proceeding and no evidence to substantiate that he can buy a property in Dubai for F. to live in.

[52] N.’s plan for what will happen if F. and the children return to Dubai was elaborated upon in cross-examination. He stated that he has offered to pay child support, plus school expenses, plus housing costs for F. Alternatively, if F. does not return to Dubai but the children do, besides Mary, his older sister (who lives in Pakistan with her husband and their children) will come to Dubai to help with child care, and his aunt (a widow who lives in America and does not know the children at all) will move-in with them in Dubai. Without F. in Dubai, he will be the children’s primary caregiver.

[53] In cross-examination, N. denied that he has had concerns in the past about Mary caring for the children alone, and specifically he denied that he had any anxiety about that when the family vacationed in Thailand with Mary.

[54] In direct examination, N. was asked about his contact with the children since June 19, 2020. He has had some videoconferencing with them; currently that is twice per day via Zoom. Exhibit 7 is an audio-video clip of N. speaking with Z., recorded on the father’s cell phone.

[55] This Court is not much interested in N.’s impression of what was said during that call. I have watched and listened to the recording, multiple times. I can clearly hear the girl say words to the effect that her mother will be taken away from her if she goes back to Dubai. I can clearly hear N. tell the child “no”. The child then goes off screen and speaks to someone. The audio at that stage of the recording is less clear. I believe that the girl questions the other person about whether in fact it is true that Dubai will take her mommy away from her. The other person is not visible in the recording. N. testified that it is F.

[56] In cross-examination, N. readily admitted that he has made several inappropriate comments to Z. since they arrived in Canada in June 2020. Examples include telling the girl to get herself to an airport to come back to Dubai, and that it is time for her to come home. In fact, with reference to exhibit 7, during that call, N. did speak to Z. about her coming home.

[57] When asked in cross-examination if he thought that those types of comments were damaging to the child, he replied not in the early stages of them being in Canada but perhaps afterwards, yes.

[58] Also, in cross-examination, N. admitted that he has not come to Canada to visit the children since June 2020.

[59] Before leaving the evidence of N., a few important things must be noted from the lengthy read-ins at trial of the father’s out-of-court questioning by Mr. Conway on October 19, 2020. First, N. admitted that F. was the primary caregiver for the children (question 13). Second, N. admitted that there was a lot of time that he was not present with the children (question 15). Third, N. admitted that F. is the more important caregiver for the children (question 296).

[60] There was no evidence from N. at trial, whether in direct or in cross-examination or during the very brief re-examination of him, that departed from those admissions that he made to Mr. Conway during his pre-trial questioning and which were read-in to the trial evidentiary record by Mr. Conway as part of F.’s case.

[61] In cross-examination, N. agreed with Ms. Yehia’s description of the marriage as being a “traditional” one.

[62] In cross-examination, many questions were put to N. about household life in Dubai. Frankly, I think that some of the questions and answers took away from the effect of the read-ins highlighted above. For example, in cross-examination, N. stated that, after E. was born, although F. was not working outside of the home, they had Mary (the nanny), plus a second nanny/maid on staff, to help with child care.

[63] In any event, in cross-examination, N. admitted that he has never spent an overnight alone with Z. (that is, without F. being there).

The Mother

[64] The following is a brief summary of the viva voce evidence of F. at trial. Similarly as with the father, the reader must remember, and this Court has not forgotten, that part of the mother’s evidence at trial was adduced in the form of an affidavit – exhibit 4, sworn on September 21, 2020.

[65] F. is 30 years old. She was born in Pakistan. Her family came to Canada on December 24, 2005. She lived in Ontario between then and when she went to Dubai with her new husband, N., after the marriage in February 2012. She is a Canadian citizen, as are the two children, Z. and E.

[66] F. was married to N. in Pakistan on February 11, 2012. She stated that she separated from N. on June 7, 2020.

[67] F. testified that she has always loved Canada. She was 15 years old when she first came here. She was in a program at Algoma College shortly before marrying N.

[68] F. testified that, before the marriage, she told N. that she intended to live permanently in Canada. Dubai was always supposed to be a temporary location for her and N. For the longest time, according to F., their plan was to move to Canada. Every major decision was a part of that plan. For example, JESS was chosen because it is similar to some Canadian schools. As another example, N. completed Canadian immigration documents in May 2015, and not just for the purpose of obtaining a Canadian passport (as alluded to by N. in his testimony). Also, F. filed taxes in Ontario every year since 2006. And Z. was born in Oakville (while E. was born in Dubai). As well, text messages between the parties on September 18, 2019 include a remark by N. “move out of the country”. According to F., that comment was made by N. when they were buying chattels for their place in Dubai, and the implication is that he wanted choices to be made that were in keeping with a planned move out of the United Arab Emirates.

[69] In terms of the immigration papers, Mr. Smith questioned F. about them in cross-examination. They were completed by her as a sponsor for N. She was the one who signed the retainer agreement with the migration service company, and the forms were sent to her. In May 2014, she indicated on one of the forms that she had resided in the United Arab Emirates since 2012, and she left blank the date when she planned to reside in Canada.

[70] F. described her marriage as being very difficult. She had to try to change herself. N. controlled her in many ways. He criticized her. He had a bad temper and could be aggressive. He never hit her but raised his hand a couple of times before their first child was born. He could not perform sexually. He chose not to continue with the sex therapy, which included masturbation and watching pornography (full-fledged pornography, and not something like Game of Thrones). She walked in on him at home while he was watching pornography. He also chose to end the couple’s therapy that they took after Z. was born. The lack of intimacy with her husband really affected her in a negative way, she stated.

[71] With regard to the pornography, and the suspected ages of the females shown therein, F. said that they were between 14 and 16 years old - paragraph 87 of her affidavit (exhibit 4). In cross-examination, Mr. Smith took F. to her pre-trial questioning and her reference, then, to the girls being between 16 and 19 years old.

[72] On the issue of physical aggression, in cross-examination, F. stated that N. never hit her. When she tried to hug him, he pushed her away on occasion. Before Z. was born, he raised his hand to her, three times. On the intake form that she completed with the expert, Ms. Parker, F. stated “no” in answer to the question “have there been any incidents of physical aggression?”.

[73] On the issue of control, in cross-examination, F. stated that both parents made decisions about Z.’s education, as she indicated on the intake form with Ms. Parker. On finances, she controlled her own bank account in Dubai.

[74] Generally speaking, in direct examination, F. painted a very miserable (my word) picture of her existence in Dubai. She had few friends. She had a limited social calendar, controlled by N. She often had to cancel social plans at the last minute, at the behest of her husband. Her religious freedom was not absolute, though she acknowledged to Mr. Lokan in cross-examination that the state did not restrict or prohibit her from going to a mosque in Dubai.

[75] In re-examination by Mr. Conway, F. said that in Canada, unlike in Dubai, she has never had her identification card checked when entering a mosque.

[76] Mr. Lokan questioned F. at some length on the issue of religion. “My Shia beliefs are moderate”, she had stated before trial and confirmed as being accurate at trial. There are public holidays in Dubai for Muslims, both Shia and Sunnis, that are not celebrated in Canada, she told Mr. Lokan at trial. Muslims face prejudice in Canada, and there exists Islamophobia in Canada “to a very small extent”, F. said to Mr. Lokan at trial.

[77] In cross-examination by Mr. Smith, F. admitted that she was permitted by N. to have an Instagram page, which she started in 2017 and called “wastelessmama”, devoted to eco-friendly posts. The page included a video link of her.

[78] In cross-examination, F. stated that, before COVID-19 appeared, she went grocery shopping when she wanted to. She met her friend Afrah once a week, and she met friends at malls on occasion. She and N. did go out in Dubai from time to time, to dine-out or to attend concerts (including a Metallica concert in Abu Dhabi), as examples of activities. They also hosted events at their home, attended by friends of various religious faiths. They travelled extensively around the world. There was very limited physical affection between them, however, she stated.

[79] In cross-examination, F. outlined a series of what she considered to be concerning behaviours on the part of N.: frequent masturbation while watching pornography in private in the bathroom, swearing at F., yelling at F., threatening F., calling F. derogatory names, losing his temper, and controlling all of the major buying decisions for the family.

[80] F. denied that she ever tried to force herself sexually on N.

[81] F. described what happened between the couple on June 7, 2020. She saw N. touching himself and watching something on his cell phone while he was in the bathroom. She confronted him. She told him that she wanted a separation. She said she would go to Canada with the children. He said no. She said she would go to a hotel with the children. He said no. They exchanged some text messages. Then they spoke again face-to-face. He said he would file a police report or some kind of “absconding report” if she left with the children. She then called his sister. She felt threatened that the kids would be taken away from her. She was scarred (she was crying in Court as she described this).

[82] F. testified that she took the children’s important documents with them to Canada in June 2020 because she wanted to have the option of not returning to Dubai. She was unsure of her “end plan”. Exhibit 25 is a recent email from JESS to F., asking for Z.’s student identification card. F. acknowledged in cross-examination that she refuses to give that back to N. because he might use it to place a travel ban on F. and/or the children.

[83] In cross-examination, F. testified that N. did not consent to her and the children coming to Canada in June 2020 in order to stay here. Return tickets were purchased in advance. She did not tell N. that they were not returning to Dubai until they had been in Ontario for some period of time.

[84] When asked by her lawyer what the cause of the marital separation was, she answered that it was physical intimacy problems, and too much compromising by her, and too much sacrificing by her, and his constant outbursts.

[85] Why have a second child, her lawyer asked her. She answered that it was mainly for Z.’s benefit.

[86] F. testified that her pregnancy with E. was a difficult one; she had bleeding and back pain issues.

[87] In terms of religion, F. stated in direct examination that she has always been religious and comes from a very religious family. She has always dressed modestly. She did not wear a hijab much in Dubai because N. did not like it. She taught Sunday School in Ontario before the marriage. N. made fun of her religious beliefs, calling her a “fundo” (fundamentalist) or a terrorist. She now wears a hijab regularly since she arrived in Canada on June 19, 2020.

[88] As for society in Dubai, F. stated in direct examination that reports to the police by women are ignored as domestic violence is not taken seriously.

[89] I pause here to note that the above comment cannot be admitted for its truth. It is clearly hearsay. F. testified that she gathered that information from speaking with two friends who went through custody matters with their spouses in court in Dubai. Neither friend testified at trial. This Court received that evidence only for the limited purpose of knowing what F. believes about the subject, and not for its truth.

[90] In the personal experience of F., women are considered “second-class citizens” in Dubai (see paragraph 137 of her affidavit evidence). In cross-examination, F. stated that she never felt constrained in her employment in Dubai because she was a woman, and at one of her places of employment (Boulevard One) there were many more women than men.

[91] F. testified in direct examination that the earliest date that she was served with any paperwork for a court proceeding in Dubai was on August 4, 2020.

[92] In direct examination, the mother outlined her work experience in Dubai. She was employed full-time for an oil and gas company between June 2014 and July 2015. She then worked part-time for two months in 2016, employed by a different private company. She then worked part-time for a company called Boulevard One during three different time periods in the years 2017, 2018, and 2019.

[93] F. stated in direct examination that she often needed a “no objection letter” from N. in order to get things in Dubai for herself, like a driver’s licence.

[94] As for getting a residency permit in Dubai, F. testified that the claimant needs to have health insurance. In cross-examination, she stated that she has had no problems thus far in renewing her residency permit.

[95] Regarding N.’s relationship with the children, F. stated in direct examination that he “played” with them a lot but never did much child “care”. In cross-examination, F. stated that N. does not have a “strong bond” with the children.

[96] An important part of the trial was what F. stated concerning Mary. According to F., from July 2016 until now, Mary has been working for the family. Her jobs include cleaning, ironing, laundry, cooking, and occasionally helping with the children.

[97] There were some issues with Mary, F. stated. Those caused F. to not trust Mary anymore. N. suspected that Mary stole money. F. caught Mary getting upset with Z. a couple of times. F. caught Mary standing a few metres away from E. while the boy was in his stroller during a walk.

[98] For as lengthy as this trial was, and for as truly important as this case is, there are not many factual items arising from the evidence that are material and that are highly contentious. The role of Mary is one of them. This is what F. said about Mary’s responsibilities – below is F.s evidence-in-chief from line 5 to line 22 on page 29 of the trial transcript, November 16, 2020.

Q. But you said that you had help, and that’s from -- from -- from whom?

A. It was from Mary mostly in 2000 and -- well Mary was our maid from -- from July 2016 until -- until now, until June.

Q. Can you describe her responsibilities?

A. Yes. Her responsibilities were predominantly to make sure that the house is organized and clean, and I felt as food -- I was very particular and I wanted to -- because I had help and that -- that we had that extra pair of hands around the house, I tried to make sure that Z.’s food wasn’t purchased from outside. So even purees or -- or any -- anything like that, we make at home from fresh. And Mary spent a lot of time in the kitchen, as well as cooking for us, assisting me with the kids and the care for the kids when I needed it. But her -- her priority was to be cleaning and ironing and laundry and things like that.

[99] This is what F. said about concerns regarding Mary – below is F.’s evidence-in-chief from line 17 on page 30 to line 10 on page 31 of the same trial transcript.

A. Mary is a -- a hardworking lady. She’s worked with us for a long time, so I have respect for that. We’ve built a good bond over the years, but I think as every employment comes to an end, our contract or our work together was coming to an end because of some issues that we had coming up. I think generally what I felt was that I think the -- the sense of having a toddler around the house was -- was stressful for her, but also, I think there was some issues, which is why I think....

Q. What issues were they? Can you describe those for us?

A. So N. was really highly suspecting her stealing money from his wallet. I had caught her being upset with Z. irrationally a couple of times. And most recently, I think end of May or mid-May, Mary had taken E. out for a walk early morning, and I think I was just taking a shower then, and when I came downstairs and I checked and E. was just sitting on his stroller and Mary was I think a few metres away speaking to a friend, and so I -- I just felt scared because -- well I -- I was really particular if and when I did leave Mary in the care -- in charge of children, I was -- I was very particular how I’d request her to manage and make sure she’s around them. And E. was only six months or five months at that time, so I think I didn’t feel -- I didn’t trust her anymore.

[100] In cross-examination, it was suggested to F. that Mary helped “a lot” with the children. F. stated that was not true. She was taken to her pre-trial questioning wherein she stated that Mary helped with the children “quite a lot”. F. replied that Mary helped “minimally”, as stated at paragraph 89 of her affidavit (exhibit 4). Mary was not a nanny, said F. She was a “maid”. There were times that Mary would feed, change, hold, and nurture the children, but those times were limited, F. stated.

[101] In cross-examination, F. was shown WhatsApp messages between her and Mary from June 20, 2020, right after F. and the children came to Canada. In those messages, F. asked Mary to spy on N. She wanted to catch N. using escorts. F. was also shown messages from July 14, 2020. On that date, F. told Mary that Z. “often” says that they should call Mary, but F. told Mr. Smith in cross-examination that she was just trying to be nice to Mary. It was actually not true that Z. was saying that often.

[102] Set out below is the entire exchange between Mr. Smith and F. on these issues about Mary summarized above, from line 18 on page 180 to line 16 on page 193 of the trial transcript, November 16, 2020.

Q. Well I wanted to speak to you next about Mary. And we’re heard a -- a great deal about what Mary did and didn’t do, but you’ll agree with us now that Mary was a nanny, right?

A. No, she was a maid. And I don’t like to use that word because it sounds derogatory in some ways, but she was a housekeeper predominately. She did help with the care of the children, but it -- again, we go back to her duties and her responsibilities and what she was hired as, she was hired as house help.

Q. She did a lot with your children. She helped out a lot, didn’t she?

A. She helped out as a second pair of hands …

Q. Okay.

A. ...but she did a lot more with the housework than she did for the kids.

Q. Okay, the “second pair of hands” statement, that one is interesting, that comes from your opening?

A. Right.

Q. Right. And so you’re -- you think that’s a nice thing and a helpful thing for you to say to this Court because it’s in your opening, right?

A. I actually suggested it to, I think, Ms. Laine (ph) when we were....

Q. Whoa, whoa, just be careful about that please.

A. Well the words came out of my mouth first, is all I’m trying to say. “A second pair of hands” is my words, I said that.

Q. And you just -- you simply cannot agree today that Mary did a lot with the children and helped you a lot? You can’t agree to that?

A. Because I’m afraid that you’re trying to show -- I -- I’m trying to put the right perspective in your mind that she helped, but I was the main caregiver and care for the children. She helped, but to a limited extent, not to the extent that you are trying to say.

Q. I haven’t said anything about the extent. I asked you if you could acknowledge she helped a lot, and you can’t. You just can’t say that, right?

A. I can’t say that because it’s not true.

Q. Okay, do you remember me examining you about this?

A. Yes.

Q. Okay, I want you to listen to me carefully.

A. Okay.

Q. ...

“QUESTION: You’ll agree with me that Mary wasn’t just a housekeeper, she helped out with the care of the children?

ANSWER: She helped me quite a lot with the care of the children, but mostly she was in charge of the house chores.”

MR. SMITH: Q. Were you asked those questions, and did you give those answers?

A. Yes.

Q. In your answer in this case, you couldn’t even agree that you had a nanny. You couldn’t bring yourself to say that she was a nanny?

A. And I still can’t.

Q. You can’t. Let’s go to your answer. We’re going to take a look at Exhibit 6.1, and we’re going to go to paragraph 45.

A. Thank you for zooming in.

Q. It’s says in the third line on the right-hand side,

“The parties did not have a nanny”, [right], “rather, they had maids in the home that were responsible for household chores and were minimally involved in the care of the children, which was the sole responsibility of the respondent.”

A. Yes, that’s correct.

Q. I put it to you that that is a significant overstatement of your role and a significant understatement of Mary’s role?

A. I disagree with you completely.

Q. All right, so although you told me she did quite a lot, what she did, according to your answer, was minimal?

A. Yes, in the care of the children.

Q. All right, so we know from going through all the WhatsApp that she often -- or almost always during the weekdays got Z. up and changed in the morning?

A. No.

Q. No, you don’t agree with that. So where it says that in a WhatsApp, it’s wrong?

A. It’s very limited in the WhatsApp. I asked for her help as a general -- general -- what is it called? Like schedule -- or the routine was that I woke up with Z. She helped me because E. -- after E. came in – E. had already gotten up, I would often ask her to style Z.’s hair because she’s amazing at hair styling and I’m so bad at it. I still struggle with it to this day. And so she helped me with a couple of things with that, but I was in charge of Z. in the morning and I took her to nursery. So I -- I -- if you see it in -- during the WhatsApp messages, it must be a limited amount that I’m asking her for.

Q. I see. And in terms of taking Z. to the park, she did that often?

A. She did that often.

Q. Yeah.

A. Yes, I agree with you.

Q. Did she have to clean the park because she was the maid?

A. She didn’t have to clean the park, but that’s her minimal care that she’s providing, taking the children to the park with her.

Q. So let’s be careful about our distinction in between the maid and the nanny. You agree when she was at the park, she was acting as a nanny?

A. She was acting as a babysitter at that time, that’s correct.

Q. All right, and when she was helping with Z.’s hair, she wasn’t the maid?

A. Mr. Smith, the reason I’m using....

Q. F..

A. ...this is...

Q. F. – F..

A. ...because you’re trying...

Q. F.

A. ...you’re trying...

MR. SMITH: Your Honour.

THE WITNESS: A. ...to make me define the word different, so I just want to clarify. I just want to clarify.

MR. SMITH: Q. I’m not asking for clarification.

THE COURT: No, I think she can clarify her use of the word.

MR. SMITH: All right, thank you.

THE COURT: She wants to say something further about that, Mr. Smith. Go ahead, F.

THE WITNESS: A. Thank you. The reason I say the word “maid” is because I’m defining her role as a worker or a helper for a house. She -- her predominant role was to work around the house and take care of the house, the house management and the organization of the house. Yes, again, she did help me with minimal care of the children, which was a lot of help for me in -- in terms of describing it. But, generally, I was the main caregiver and caretaker of the children. She was there for very small periods of time that allowed me to take some breaks, or do some other work, and take up some other chores, or go out for errands.

MR. SMITH: Q. She was there for “a minimal amount of time”, is that what you just said?

A. For the children, a hundred percent by herself, yes.

Q. She worked in the same home -- house as you for every day in Z.’s life that she was in Dubai except for her one day off a week, agreed?

A. As well as her monthly trip to her home country.

Q. Agreed?

A. Yes.

Q. All right, and you’ll also agree with me that you didn’t call her a maid? You -- you didn’t call -- in -- I understand that if you were going to refer to her -- her as a maid, that would a Yaya. Do I have that right?

A. No, I called her Titta (ph), which is auntie, and -- and....

Q. Okay, but that’s not -- that’s not what I asked you. I said you did not call her Yaya, agreed?

A. No, I didn’t call her Yaya because I didn’t know the translation of whatever to Yaya you’re saying.

Q. You called her Titta, right?

A. Yeah, it was my idea. I -- I approached this idea. I approached her and I said, “Hey, what do you want Z. to call you? What should we call you?”, and she said, “Anything you want.” And I said, “What -- what do you call an auntie in (indiscernible)?”, and she said, “You can call me Yaya”, and I said, “Yeah, but what does Yaya mean?”, and I don’t remember what she told me. But then I said, “What” -- then she told me “Titta”, and I said, “Oh, Titta sounds cute, is it okay if we call Titta as well, and is it okay if Z. calls you Titta?” So it was just a respectful manner, and like I said, I still don’t like using the word maid.

Q. Let’s go to the text messages that you had with Mary.

A. Okay. Oh, sorry, you’re going to put them up.

Q. I want to go and look at some of them where she’s providing services in the house with respect to assisting with the children. And I don’t think we have to go through them blow by blow, but there are a number of them where she indicates that she was being asked to change E.’s diaper?

A. I think I asked her maybe -- like barely ever for E.’s diaper change, I think maybe like two to three times when it was early morning and maybe....

Q. Madam -- madam, I didn’t ask you about the number of times. We’re going to get to that. There were times when you asked her to change E.’s diaper?

A. Yes, that’s correct.

Q. Not a maid activity, she’s acting in a child assisting capacity, agreed?

A. For that -- yes, for that period.

Q. And there are times in these text exchanges where you’re talking about E. being hungry and he needed to be fed some milk, and you would ask her to do that?

A. Yes, with a lot of instruction. I was probably very annoying. But, yes, I did.

Q. Okay, instructions are fine. The point is, you gave the instructions, and she would do it?

A. Yes, and that was...

Q. All right.

A. ...for the period of time I would leave the house, and it would be so that -- he’d go -- and I’d let her go out and do this work, and so I asked her to keep me updated throughout of it. When he woke up, I -- I told her -- I -- I’d tell her -- in the same conversation, I’d tell her like ten times, “Let me know when he gets up, let me know when he gets up”, and when she does, I figure out if I’m going to be able to get home within five minutes or ten minutes, and if not, then I ask her to feed him a -- a certain amount of pumped milk, which was very limited, and that’s when you see me asking her to feed E., that’s the only time.

Q. Okay, to be clear, if I ask you a specific question, would you mind answering the specific question asked? Can you do that for me?

A. I will try, yes.

Q. All right, thank you. Now on the screen we have one of these requests about feeding E., and this one is on February 26th at 9:31 a.m. That’s the intro to it?

A. Yes.

Q. And then she would -- she fed him that day?

A. She did.

Q. All right, and then she updates you -- and she tells you what’s going on, when he gets up, and then she closes by saying, “He’s sleeping again in my chest, later I will put to bed.” Do you see that?

A. Yes.

Q. And that’s the type of care she would provide: she would hold, she would nurture, she would feed, and she would help care for these children, agreed?

A. For a limited amount of time, yes, I agree with you.

Q. Thank you. Now in the email exchange with Mary....

A. An email or are you....

Q. I call them emails, I’m dating myself, I apologize.

A. That’s okay.

Q. These WhatsApp messages, I want to go to the part where you ask her if she could keep a secret, okay?

A. Yes.

Q. All right, so that text -- we’ll -- we’ll bring that WhatsApp chat -- okay, it starts on page 37 of the exhibit -- 30 -- 36 of the exhibit, okay? You’re in Canada by this time, June 20th?

A. Yes.

Q. All right, and you ask her to do you a favour and keep a secret, right?

A. Yes.

Q. And you want her to spy on N.?

A. Yes...

Q. All right.

A. ...that’s the very first time I asked her to do something.

Q. I didn’t ask you if it was the first or fourth time. You asked her to spy on N.?

A. I asked her to keep an eye generally, yes.

Q. And specifically, you wanted to make sure that you knew if he was going out somewhere...

A. Yes.

Q. ...right? And also, you -- you didn’t really care about the daytime, you wanted to do day or night?

A. Yes.

Q. All right, and you also wanted to know if he had anybody into the house?

A. Can I see that? Yeah.

Q. Yeah. What were you looking for? What’s the dirt?

A. I was looking for an answer to my very, very strong gut feeling that he was calling these escort agencies from the previous experience or the encounter that we’ve had before where I did see him interacting with escort agencies and even arranging for time, so I just wanted -- I -- I think I finally -- I wanted some kind of evidence for it. But I felt bad after I sent it to her because I felt like if I’m sending this it already means I don’t trust him, and so I don’t -- if I don’t trust him, then I shouldn’t be with him, and this is the whole thought process that I was going through at that time.

Q. So at this time you were still on the fence about whether or not you should be with him?

A. Yes, and if I’m going to return or if I’m going to stay in a marriage with him, yes.

Q. Okay, and when we look at this, she says she’ll do this. And you get back to her and follow up on your request and she tells you, “He hasn’t been anywhere. He’s been in the house and nobody has been in here.” Do you know that?

A. Can you....

Q. We can find that. I -- I -- I know that’s the answer, and I’ll find that for you, but we’ll -- and we’ll come back to it. She also says to you -- she says to you in one of the WhatsApp chats that -- she asks you if you’re going to come back or can you come back, and you tell her “no”, right?

A. Yes, because I was aware at this time that she was speaking to N. and she was...

Q. Okay.

A. ...coming with a -- a one-sided story being told to her already.

Q. Well the one-sided story that she was being told is actually when you say to her, “The kids are doing well, and they miss you.” That’s what you told her?

A. Yes, I was being nice to her and so I said this.

Q. You were being nice to her. Were you lying when you said the kids were doing well?

A. The kids were doing well, but they weren't really bringing her up as much. That nobody -- I mean, E. doesn’t say a word other than “zapa” (ph) right now, and Z. didn’t really bring up Mary as much. But I was just saying as a nice gesture, “They’re missing you” because I...

Q. Is -- is Z. actually -- sorry. Z.actually told you she missed her and wanted to speak with Mary on Zoom, didn’t she?

A. No, when was that?

Q. Your answer is “no”, is that right?

A. No, she did not. She told her dad, “Can I talk to Mary if she’s there?”, because N. would bring her up, and so I think N. made that interaction happen himself.

Q. Okay, we’ll come back to that. On the screen -- oh, sorry, Ms. Love-Forester is pointing out to me that at 6:58 a.m. you wrote to her Zoozoo -- “Zazoo...”, rather, “...often says, we should call you here”?

A. Right.

Q. All right, so that’s what Zazoo said to you, “We should call Mary”?

A. I think maybe she said it once that, “We should call Mary here.” She liked -- we even talked about bringing Mary to Canada with us once or twice, and so that’s the conversation, I think. We had these conversations even before I came to Canada, and so I -- I think it continued on in Zazoo’s mind.

Q. You’re suggesting that in this line, you’re referring to Zazoo saying that you should call -- Zazoo often -- Zazoo often says, “We should call you here.” You’re now saying that’s not in the context of you already being in Canada, and this all relates to something else?

A. No, I -- it is -- we are in Canada. It -- I am referring to Z. must have said, “Oh, we should call Titta here.”

Q. I can -- I read that, and it also says “often”?

A. No, so I think I maybe -- it didn’t happen often. I think it more likely happened once or twice and I said this. But I’m -- I’m referring to the conversation that Zazoo would have and related to and that’s it.

Q. Let’s go down to 7:00 a.m. where you say to her, “Please forgive me for all the things I said to you that”, I think it should be, “might have hurt your feeling.” Is that what it should say, you left out an “M”?

A. Yes.

Q. All right, and then you say, “For all the times I was angry”...

A. Yes.

Q. ...and then there’s your little prayer emoji, right?

A. Yes.

Q. And she asked you how the children -- children are, and you say, “I hope you can forgive me.”

A. Yes.

Q. Okay. What did you said -- say -- said to her and get angry with her about that you felt guilty enough to say that she -- you hoped she can forgive you?

A. It just says that this is the kind of person I am. I will probably apologize to you at the end of our conversations, that I’m sorry if I hurt your feelings, and please forgive me if I said something to hurt your feelings. This is just the kind of over guilty person that I am. I apologize...

Q. Over guilty.

A. ...to people all...

Q. And...

A. ...the time.

Q. ...you also then go on to tell her in -- at the 11:35 note, and this is much later in the day, you write to her and you tell her....

A. Different date as well, yes.

Q. Yeah -- well, okay it’s a different day. You tell her a week later that you will give her a good recommendation?

A. Yes, because at that...

Q. You were....

A. ...time I didn’t know and didn’t think that she would have been renewing her contract. I hadn’t been served with any notices, so I didn’t think N. was going to court. And so I just told her that if she at any point in time -- because my -- I felt my conversation with -- with Mary was now coming to an end, so just as a goodbye, I felt like I’d let her know that if she wanted me, at this point, to give her a recommendation on her Facebook Mom’s group then I would be more than happy to.

[103] In direct examination at trial, F. was given a chance to comment on some documentation supplied by N. – papers which he suggested showed that F. travelled frequently around Dubai (the documents were for motor vehicle toll charges). F. stated that the charges were “100% the driver” (meaning a hired driver, and not her driving), or “mostly” the driver.

[104] In direct examination, F. described her current situation in Milton, Ontario. She and the two children live in a house with her two parents, her sister, and currently her other sister and that sister’s husband and daughter. It is a four-bedroom house plus a self-contained apartment in the basement. Z. has her own bedroom, but both Z. and E. sleep with F. (the kids had always slept with F. and N. in Dubai as well). The family helps F. a lot with emotional support, child care and finances. F. has a bank account here and no longer uses the one that she had in Dubai. Z. attends Montessori Country School in Milton. Her October 30, 2020 progress report is included as part of exhibit 6.5, and it is unquestionably positive. F.’s father does not work outside of the home, while her mother is a realtor.

[105] In direct examination, the mother spoke about the investment properties in Ontario. There was nothing controversial about that evidence, except when it came to talking about places that the family could live in. F. testified that, in July 2019, with N. present with her, she viewed a few properties in Ontario where the family could live.

[106] F.’s evidence was that, currently, Z. speaks to her father twice daily, through audio-video link.

[107] F. admitted in direct examination that she did say to Z., once, that she is afraid that she and Z. will be separated from each other if they return to Dubai. She regretted that comment right away and tried to do “damage control”. That was on August 3, 2020, it was revealed in cross-examination.

[108] When asked by her lawyer what she would like to have happen in this case, F. stated that she would like to have N. come to Ontario and have lots of access with the children or even joint custody. But if N. chooses to stay in Dubai, she will do whatever is possible to maintain a relationship between N. and the children.

[109] In cross-examination, F. stated that she could co-parent with N. here in Canada but not in Dubai, because as a woman she does not have equal rights in Dubai. Also, she is worried that N. will flee Dubai for Pakistan, with the children.

[110] If the Court orders that the children return to Dubai, will she also go back, her lawyer asked her. F. started to cry. She first said that she does not think that she would. She then clarified that she cannot go back. She cannot be happy there, she said. She will stay in Canada, she said.

[111] In cross-examination, at its outset, F. denied that she exaggerated anything in her Court filings, or that she left anything important out, or that she said anything to Ms. Parker (the expert that she met with in Ontario) that was inconsistent with her testimony at trial.

[112] In cross-examination, F. admitted that, as she said at paragraphs 10 and 144 of her affidavit (exhibit 4), she wanted Ontario to deal with the custody and access issues, “as well as all other issues arising from the breakdown in our marriage”.

[113] F.’s Answer filed in Ontario was put to her in cross-examination. It states that she was “resident in Milton since 2005”. It was suggested to her by Mr. Smith that the said statement is incorrect. She denied that it is incorrect.

[114] She maintained that the said statement is not incorrect after being taken to her pre-trial questioning, where she agreed that she was “vacationing” when she was outside of Dubai between 2012 and 2020.

[115] F.’s tax returns were put to her in cross-examination. In 2017, 2018, and 2019, she filed under section 216 of the legislation, which exhibit 19 indicates is for non-residents of Canada. When asked by Mr. Smith if she knew at the time of filing her taxes for those years that she was filing as a non-resident, F. answered yes.

[116] Paragraph 15 of F.’s affidavit (exhibit 4) was put to her in cross-examination. It is set out below.

15.The Applicant also made it very clear that to me that I was not permitted to leave the compound. The children were not to leave either. He restricted my mobility and made the already difficult circumstances of living under government regulations stemming from COVID-19, unbearable. The Applicant controlled my actions including remaining in the same bedroom with the Applicant.

[117] When asked by Mr. Smith if she went to the beach with the children after the June 7th argument, F. said that they did do that. It was suggested to her that her affidavit was a mistruth or an exaggeration. She disagreed.

[118] In terms of visits to Canada over the years since 2012, F. stated in cross-examination that they (F. and N.) did not visit Canada at all in 2013, and N. did not come to Canada at all in 2014, or in 2017, or in 2018.

[119] As for the property in Cambridge, Ontario, neither she nor the children have ever stayed there overnight. N. has not done so either.

[120] Between the date of marriage and their arrival in Canada in June 2020, 182 days F. had spent at the residence of her parents in Milton.

[121] Beginning at line 27 on page 110 of the November 16, 2020 trial transcript, Mr. Smith questioned F. about her having been served with the papers that N. had filed at court in Dubai. F. testified that she was served with the Dubai court papers on August 4 or 6, 2020. They were attached as an exhibit to something that N. was serving on F. in the context of the Ontario court proceeding.

[122] In cross-examination, F. elaborated on her discussions with N., before the marriage, about moving to Canada. There was a telephone call between them. She was in Canada. He was in New York. It was before the engagement. They agreed during that call that they would spend two years in Dubai after the marriage, and then they would move to Canada.

[123] F. clarified that the agreement was not made in one single call but rather over several calls. It was like a “goodwill understanding”, she stated.

[124] In cross-examination, F. was asked whether she did any research before making any of the statements contained in her affidavit (exhibit 4) about schooling for Z., for example, comparing girls’ education in the United Arab Emirates versus Canada. She admitted that she had not done any such research. She told Mr. Lokan in cross-examination that JESS is a “very well-regarded school”. The ultimate decision to enrol Z. at JESS was a “joint decision”, though she had originally preferred other schools that N. did not agree with. She has no complaints about JESS, but it is strict and competitive, she told Mr. Lokan.

[125] In cross-examination, because the evidence of F. was interrupted to accommodate the testimony of her expert on family law in Dubai, Ms. Schildgen, once the cross-examination of F. resumed, Mr. Smith asked F. whether her views on the efficacy of N.’s proposed settlement agreement had changed given the testimony of Ms. Schildgen. F. replied in the negative – her views had not changed.

[126] In cross-examination by Mr. Lokan, F. agreed that N., with a Pakistani passport, has no automatic right to enter Canada and requires a valid visitor’s visa for each time that he enters the country.

[127] As there is an issue in this proceeding on whether the names of the parties and the children should be initialized in the Court record and for the purposes of any decisions that are reported online, Mr. Smith asked F. about that in cross-examination. She stated that she consents to the names of the children being initialized, but not the parties.

The Lay Witnesses

Nageen S. – Friend of the Parties, formerly in Dubai – Witness for the Father

[128] There was no affidavit evidence tendered on behalf of Nageen, thus, the following summary is taken exclusively from her in-Court testimony.

[129] Nageen is 39 years old. She was born in Pakistan. She is a Sunni Muslim. She now lives in Washington, DC, United States of America. Her family moved there in July 2019. At 18 years old, she moved from Pakistan to Dubai, and she lived in Dubai for 18-19 years. She has three children – 12 (a girl), 5 (a boy), and 3 (a girl) years old. Today, in Washington, DC, she lives with her husband (who works for the Marriott hospitality company), their three children, and her mother. She has a business administration university degree that she obtained in Dubai. She used to work for Emirates Airline. Her 12-year old daughter attended private school in Dubai, a school with an IB program.

[130] Nageen testified about life in Dubai. “I love Dubai”, she said. The United Arab Emirates is very “westernized”, she said. Not conservative at all, she stated. For example, recent changes in the law make it legal for persons to live together without being married. A woman can do whatever she wants in Dubai, and wear whatever she wants, Nageen stated, from the most revealing to the most covered attire. She testified that she never experienced any discrimination in Dubai. Dubai is very tolerant of all religions and all sects of Islam, she said. It is multicultural and multi-religious.

[131] In cross-examination, Nageen was pressed about her perception of life in Dubai. She stated that all public holidays in Dubai are Muslim holidays. She said that she has travelled extensively throughout the Muslim world – Egypt, Saudi Arabia, Jordan, and Turkey, included. None is as “westernized” as Dubai, she said.

[132] Nageen stated in direct examination that she was very happy with her 12-year old daughter’s education in Dubai. In cross-examination, Nageen stated that the school instruction in Dubai is based on Islam generally, and the Quran, and not on one particular sect of the Muslim faith.

[133] In cross-examination, Nageen was asked about F.’s religious practices in Dubai. Nageen stated that F. never went to mosque regularly for prayer. She added that she has never seen F. wearing a hijab, as she saw F. wearing one on the Zoom trial’s video screen.

[134] Nageen was kind to both parents in her evidence. She described N. as “super caring”, “super excited”, and positive with the child, Z. She described F. and N. as “very loving parents”. With regard to the relationship between F. and N., Nageen testified that she never thought that there was any problem between the two of them.

[135] In cross-examination, Nageen stated that, generally, she met with F. every three to four months. They also communicated with each other electronically, by WhatsApp for example. Nageen last saw N. and F. and Z. in-person in June 2019, just before Nageen and her family moved away from Dubai.

[136] In cross-examination, Nageen testified that F. told her that F. would not go anywhere (like shopping) with Z. but without the nanny.

Mary Ann R. – Nanny in Dubai – Witness for the Father

[137] In addition to the following summary of the viva voce evidence of Mary, one must have reference to her affidavit sworn on September 28, 2020 (exhibit 5).

[138] Mary is 46 years old. She is from the Philippines. She has three children of her own (23, 19, and 17 years old), in the Philippines.

[139] I pause here to repeat something that was stated earlier in these Reasons, for as lengthy as this trial was, and for as truly important as this case is, there are not many factual items arising from the evidence that are material and that are highly contentious. The role of Mary is one of them.

[140] This is what Mary told Mr. Smith in direct examination at trial, in terms of her role with the family in Dubai, from page 50, line 25 to page 56, line 6 of the trial transcript, November 13, 2020.

Q. All right. So when did you start to work for N. and F.?

A. That is 2016.

Q. And what was your role with them in 2016?

A. I -- I work for their house, maid, but all-around maid.

Q. And did that change at any time?

A. What change do you mean?

Q. Well did your job change from being the maid to do anything else?

A. I work because first Madam pregnant and I do all the cleaning in the house.

Q. And what about after the baby is born?

A. Then after the babies, yes, I take care of the baby.

Q. Okay. And what did you do when you say you took care of the baby?

A. They give me the baby -- that one in -- they give me the baby in the -- first, I assisting first because that its first baby, Z. I assist first that one because it’s still baby. And then when Z. is like one and -- one year old, I always go -- went to the park to play with her, or also in the morning I play with her, and then feed her, all of that for that she -- for Z.

Q. Okay. So let -- let’s break that down a little bit. From when Z. was born until she turns about one, the time that you were talking about, you said you were assisting, and what were you doing to assist with Z.?

A. Yeah, first I -- I change her diaper, take a bath, and then changing her clothes. And after that one, I feed her and then playing. That’s it.

Q. Okay. And after Z. turns one, can you generally describe what you did with Z. after she was one?

A. She -- we always playing, sir.

Q. Okay. And what about meals?

A. Yeah, I -- I -- I all -- I give her for breakfast, like 7:00 breakfast, oatmeal, and then after one hour I give her omelette, and then after one hour I give her fruits, and then we will play.

Q. Okay. And what about Z.’s morning routine, when she would get up in the morning, how did that...

A. Yeah, she...

Q. ...work?

A. ...she’s -- when Z. is wake up six o’clock, sometimes they give me -- the -- Sir was going down and they -- she give -- he give me Z. downstairs and then I take Z.’s diaper and then wash, and then I wash her face, change her clothes, and then -- that is the daily routine and then she was [indiscernible] and then watch TV. And then she watch TV self, I feed her for her breakfast. And then after that, she finish breakfast and then I off -- I turn off the TV and we will play her. We have a small -- we have a small playing area, and that one is the apartment.

Q. Okay. And where -- where are you sitting now? Are you sitting it that apartment or are you in a different place now?

A. Oh, that one before, we were sitting in the apartment after, and we moved -- in 2016, because we’re moving here in 2019.

Q. Okay. Did your role change when you moved to the new apartment?

A. Yeah, because the house is big.

Q. Okay. And how did it change for you?

A. It’s difficult for me to clean the house, and that’s why sometimes it will be just part-time, a part-timer, that only three hours cleaning. And she will do the cleaning and then I will -- then I will take care of Z.

Q. When you say “she”, who is she?

A. The part-timer, the part-timer to clean the house. I believe that three hours only.

Q. All right. And in terms of the birth then of the baby, which we know was in November of 2019....

A. Yeah, that is the one month I make crazy that one because I’m only one that was. And then after that one -- one month, in December they will get a fulltime cleaner, a fulltime maid, Zeganali (ph) because I -- I cannot do everything that one -- that is relief, the Philippina nanny.

Q. Okay. And so what was your role after E., in terms of care for E.? Can you tell us about that?

A. That one E. -- it’s – E. is up in the morning. Madam give me E., and then after that one, I feed E., and then Z. is also there, but she’s – Z. is watching TV. And I carried E. and then I will give -- if E. is hungry, I will give to Madam. I will go up and then I give E..

Q. Okay. And what about diaper changing?

A. Yeah, I -- I always diaper change E. and Z.. After they gave me -- if they gave me, I will change their diaper and there they clean.

Q. And what about feeding of E.?’

A. The -- from E. before, she’s -- he’s still a -- a child, an infant. If E. is hungry about two hours, I will give to Madam and then he [sic] will feed E. upstairs. After they feeding E., he [sic] will give me back E..

Q. Okay. And did you engage in feeding of E.?

A. Yeah, I feed E. because sometimes we have milk, because Madam, she all -- she always pump, you know, her breasts and then we -- we put that one in the

sterilized plastic and then we will put in the freezer.

Q. All right, and what would you do with the milk that was in the freezer? Was it just given back to F. or what did you do with it?

A. No, no, no, I will put -- I will melt that one in the -- in the water, that -- there is the hot water is the process. I will put that one and then melt it. And after I melted the one -- that one, I will put in the bottle, in the bottle, and then after this one, I will give to E..

Q. And when you say give to E., what do you mean?

A. I will feed him.

Q. Okay. And did that -- how often did that happen?

A. Sorry, sir.

Q. How often did that happen?

A. Every time he’s hungry because we have a lot of milk in the freezer.

Q. Okay. Now did you go on outings with F.? Did you go out of the house with F.?

A. Yes, of course I -- I did because I help and I -- I will watch the two babies.

Q. And did you also go out with the family together?

A. Yes.

Q. Okay, do you recall where you went?

A. Sometimes we will go in the friend’s house.

Q. Did you go other places?

A. In the friend’s house, like her -- her friend’s house we will go, and the other places. Like what,

Thailand?

Q. Yeah, tell me about Thailand?

A. Yeah, it’s -- Thailand is beautiful vacation.

Q. And did you go...

A. Yes...

Q. ...with the family?

A. ...we went there.

Q. And what was your responsibility there?

A. When -- when they are going outside in the night because they don’t -- I’m only there and then there’s two babies of friend of Madam and then Z.. And then only in the outside, they were going outside in the night, I will take in charge to watch baby, and even they’re sleeping because you know children, they need olds to watch them.

Q. Now within the household, so we’re back either in the apartment, the first apartment, or the building you’re in now, who gave you direction and instructions on what to do?

A. Yes, my -- my madam.

Q. Your madam?

A. Yes.

Q. Okay. F.?

A. Yeah.

Q. And how would you and F. communicate, how did you receive instructions from her?

A. Sometimes she will explain me how I’m doing, sometimes she chat me, do this one.

Q. Okay, when you -- you said -- I want to be clear on this, you said she chatted you, is that what you...

A. Yeah...

Q. ...said?

A. ...sometimes she chat me because she’s upstairs. So I cannot -- sometimes she don’t want to disturb because she -- sometimes she’s sleeping and -- especially in the morning, and then she chat me, this is what she want to do. Cook this one for the baby, like this, and then I follow her.

[141] Exhibit 18 is a collection of WhatsApp messages between F. and Mary between December 2019 and July 2020. The messages are self-explanatory, describing various things that Mary did for/with the children.

[142] The messages show that, on June 20, 2020, F. asked Mary to keep tabs on N., such as tracking when he leaves the house. On July 21, 2020, F. told Mary that F. would give her a good recommendation.

[143] As for who generally cared for the children each morning, between when they woke up (6:00 a.m. or earlier) and 7:30 a.m. or so (when F. woke up), Mary testified that it was her (pages 63-64 of the same trial transcript).

[144] Mary has gone on trips with the family, including a trip to Thailand.

[145] In direct examination, Mary was asked about her observations of N. with the children. She stated that she has seen him play with Z., before and after his work, and change diapers, and feed Z., and feed E., and play with E. Rarely would she see N. change E.’s diaper.

[146] In direct examination, Mary was shown photos of her and the children, Z. and E. The trial transcript does not show it, but immediately when she saw the first photo Mary’s face beamed with a very big smile.

[147] In cross-examination, Mary told Ms. Yehia that she considers F. and N. to be family.

[148] In cross-examination, Mary spoke again of the morning routine in the household. F. would get up after 7:00 a.m. At about 7:30 a.m., F. would take Z. to school. Mary confirmed that she gets one day off work per week, Friday, and she does not care for the children in the middle of the night.

[149] Mary testified in cross-examination that, after E. was born, only one time did F. ever take E. with her to pick-up Z. from school without Mary being present for the trip.

[150] In cross-examination, Mary testified that she takes her orders and directions from her “superior”, F. The following is Mary’s evidence in that regard, from line 13 on page 93 to line 25 on page 95 of the same trial transcript.

Q. Okay, and when Madam leaves the house, and leaves you at home with E., she leaves you lots of instructions, right?

A. Yes.

Q. She tells you exactly what to do?

A. Yes, when -- when E. is up, I will message her; when E. is hungry, I will give the -- I will feed him.

Q. Okay. So you only -- you only do what Madam and Sir tell you to do, right?

A. Yes.

Q. Okay, you -- you don’t -- Madam is the one who gives you the directions?

A. Yes, she knows everything that went.

Q. Okay, she knows everything. And she tells you how to -- how she wants you to help her with Z. and E.?

A. Yeah.

Q. She tells you what time to feed them?

A. Yeah, but -- but -- but one -- that is a daily routine. I know that one, all I....

Q. But she -- she will tell you when and what to feed them. She tells you what to cook, and what snacks to give Z.?

A. The snack of Z., I -- I have already a list that -- what I will do for the snack. It’s up to me what I will give -- give her snack, what I will cook for Z. for...

Q. You don’t....

A. ...her snack. And for E. is, I will steam only vegetable.

Q. Okay, and you do that because that’s what Madam has told you, right, you feed them only what Madam tells you to feed them?

A. Yeah, but every time that -- she will, but I know that one that -- when she told me that one, but I prepared already food for the children...

Q. Okay.

A. ...even she did not told me, but I’m -- I have already cook.

Q. Okay, but you -- you don’t -- you don’t make decisions about when they eat, she tells you when, right?

A. When they eat?

Q. Yeah, she tells you when to feed them?

A. I know -- I know that time already, that’s why I didn’t wait for her to tell me now...

Q. Okay.

A. ...“You feed her”, but I know the time that one.

Q. No, I -- I understand what you’re telling me, Mary, but what I’m saying is, is you didn’t come up with the schedule yourself, Madam tells you when to feed them, what time, right, and -- and what they can eat and what they can’t eat, right?

A. Yes.

Q. Okay, and she tells you when to take them to the park?

A. Yes.

Q. And what they should watch?

A. Pardon?

Q. And what they can watch on TV, you don’t decide that, right?

A. No.

Q. And you don’t decide whether to give them medicine if they’re sick, right?

A. No.

Q. Okay, and so if Madam doesn’t tell you what to do for the children, you don’t do it, right?

A. What I do for the children?

Q. Yeah, Madam tells you, and if she doesn’t tell you, you don’t do it, right?

A. Okay, yes.

Q. And it’s your job to do what Madam tells you, yes?

A. Yes, it’s my superior.

[151] Mary confirmed in cross-examination that she has never been left alone with Z. for a full day.

[152] Mary’s current contract with the family runs until August 2021. She has a temporary visa to be in Dubai, sponsored by N.

[153] Mary was complimentary of F. in cross-examination. She described F. as a good mom. F. is good at calming Z. down, Mary stated.

[154] In cross-examination, Mary acknowledged that her household duties include cleaning and cooking. She even cooked breakfast for F.

[155] According to Mary, in cross-examination, between 2017 and 2019, N. travelled a lot. She helped F. with the child care.

Afrah S. – Friend of the Parties in Dubai – Witness for the Mother

[156] There was no affidavit evidence tendered on behalf of Afrah, thus, the following summary is taken exclusively from her in-Court testimony.

[157] Afrah is 37 years old. She was born in Dubai. She is of Pakistani heritage. She has a university degree in accounting. She has two children – a boy who is 9 and a girl who is 5 years old. She has known F. for many years and is a very close friend of F. When F. lived in Dubai, Afrah saw her regularly, mostly with the children. Afrah spoke with F. daily. She visited F.’s house once a month or so.

[158] Afrah described F. and N.’s relationship as “good” and “nice”. She described N. as being fairly “orderly”.

[159] In direct examination, Afrah stated that F. was “hands-on” with her children, Z. and E.

[160] Afrah called Mary the “housekeeper” or the “maid”, although about “half the times” F. would bring Mary along on visits with Afrah.

[161] Afrah, her husband, and their two children all went on the trip to Thailand with F., N., and Z., and Mary, in December 2018. During that trip, it was “mostly” F. who took care of Z. N. had a sore back during the trip, but he still was “hands-on” and would “manage” Z, according to Afrah.

[162] During the trip to Thailand, F. divulged to Afrah some of F.’s marital problems. “I felt she was quite unhappy”, said Afrah.

[163] Afrah described both herself and N. as being fairly “tightly wound-up” people, and that was evident on games nights, for example (when the adults would play board games together).

[164] In direct examination, Afrah was asked if she had any first-hand evidence of N. restricting F.’s religious practices or losing his temper or getting angry. Afrah stated that she had no such evidence.

[165] In cross-examination, Afrah confirmed that, in Thailand, when all of the adults went out, the children of both families were left with Mary.

[166] “N. is a good parent”, Afrah stated in cross-examination.

Maternal Grandmother (F.’s Mother) – Witness for the Mother

[167] There was no affidavit evidence tendered on behalf of the maternal grandmother, thus, the following summary is taken exclusively from her in-Court testimony.

[168] I do not want to use the maternal grandmother’s first name in these Reasons. I also cannot refer to her by initials because it will be confusing – her initials are the same as her daughter’s (the mother in this case). Thus, I will refer to her as “M.G.”, for maternal grandmother.

[169] M.G. was born in 1966 in Pakistan. She is married. She has four daughters, and F. is the eldest. She has four grandchildren. It is a very close family. The family came to Canada in December 2005.

[170] M.G. and her daughters all use a surname that is not that of M.G.’s husband. They do that for “security reasons” – to avoid others knowing that they are Shia, M.G. stated at trial.

[171] M.G. has a university degree in science. She is a realtor in Ontario.

[172] M.G. described F. as being a very caring and a loving person. F. is a “Google-mom” or a “book mother”, M.G. stated, meaning that F. researches a lot and wants everything to be perfect. She described N. as being a “workaholic”, respectful of M.G., but sometimes sarcastic with M.G.’s husband.

[173] M.G. stated in direct examination that she has spent considerable time at F. and N.’s place in Dubai. Two or three times a year, she stayed with them in Dubai for a month or so each occasion. For the first few years, she saw the couple fight a lot. N. always supported her visiting with them in Dubai, M.G. stated.

[174] In cross-examination, M.G. testified that, when F. was living in Dubai, she spoke with F. pretty much every night.

[175] M.G. testified that N. “loves them” (the children). He is usually busy and, thus, he spends time with the children before and after work. He plays with them, M.G. stated.

[176] M.G. described Mary as the “housekeeper”. She outlined Mary’s duties as cooking, cleaning, ironing, doing laundry, and feeding the children.

[177] M.G. described her own relationship with the children, especially Z., as being “close”.

[178] M.G. helped F. and N. find the investment properties in Ontario. She was “very hopeful” that they would be moving to Ontario, especially given that they had partially completed immigration papers for N., M.G. stated.

[179] According to M.G., on two occasions, first in 2016 or 2017 and then in 2019, when N. was in Ontario, he told M.G. that he wanted to find a home to live in. Nothing came of it, however.

[180] In cross-examination, M.G. mentioned a disturbing experience that she had when she visited a home in Milton, about five minutes away from where she currently lives. She was the victim of a racist, Islamophobic comment made by someone who saw her.

The Experts

Diana Hamade – Expert on Family Law in Dubai – Witness for the Father

[181] In addition to her viva voce evidence at trial, the exhibits that are most relevant to Ms. Hamade’s evidence are her report dated September 27, 2020 (exhibit 8) and her responding report dated October 13, 2020 (exhibit 10).

[182] On consent, Ms. Hamade was accepted by this Court as an expert witness in the field of the law of the United Arab Emirates, Dubai specifically.

[183] Ms. Hamade has a LLB degree from the United Arab Emirates University, which she obtained in 1990, and a LLM degree that she obtained in 1991. 60-65% of her practice is in family law. She is licensed to appear in all courts of the United Arab Emirates. Up to 80% of her family law practice relates to parenting issues, including custody matters.

[184] Ms. Hamade reviewed the court filings of N. in Dubai. She testified that N. followed the two-step process for family matters in Dubai. First, on July 11, 2020, he filed papers for the mandatory step one – reconciliation with a court official called a conciliator. Second, on September 20, 2020, exhibit 11, he filed his application as step two, seeking a divorce and what we would refer to as joint custody of the children.

[185] Ms. Hamade stated that, generally, custody in the United Arab Emirates goes to the mother, while guardianship is with the father. When a male child reaches 11 years old, and when a female child turns 13 years old, the mother’s custodial rights could end. When the mother remarries, her custodial rights could end. In either scenario, however, the custodial rights do not end automatically. It depends on the best interests of the child. The father can also waive his rights under either or both scenarios (trial transcript, November 10, 2020, page 24, line 23 to page 26, line 9).

[186] Ms. Hamade testified that guardianship for the father does not necessarily include much access time with the children.

[187] In direct examination, Ms. Hamade stated as follows, about the intersection of custody law in the United Arab Emirates and the best interests of the child, from line 1 on page 18 to line 32 on page 18 of the trial transcript, November 10, 2020.

Q. All right. And in terms of the process in decision-making, can you tell me what, if any, role the best interests of children plays in the court’s decision-making process and within the legislation?

A. This is where -- when we talk about the end of the custody years of children, we would always have to bring immediately the provisions of the UAE law that state that it’s the best interest of the child that the judge ruling on any case would have in his discretion to apply immediately. And that also goes with the guardianship role of a father who has the ability to make decisions on his children.

And usually, the Court will also exercise in its own discretion the best interest of the children test and would always commit to that seriously. Because in my opinion, and I -- I always serious, and it’s quite evident in all our cases, that the best interest of the child is the most and foremost importance to a judge, and it does have a paramount role.

Q. And I’d like you to look at page 15 of your report, paragraph 4.4, where you were specifically asked this question about the best interest to the child, and we asked whether it was applied in the UAE in determining matters related to custody and access, and if so, how. And I’d like you to look at those last two paragraphs on page 15. One spills onto 16.

A. Well, as I said, when the judge decides on a matter where he has discretion, the interest of the child is his first concern. The child’s welfare is really the focus of the legislation. And I went on giving the example of the words for the child’s interest appeared frequently as a Personal Status Law, like, Article 146 of Article 7, Article 156 of Article 1, and Article 156 from Article 2. And the law provides that the judge should choose the more suitable custodian for the children, that’s in Article 155 of the Personal Status Law.

[188] In cross-examination, Ms. Hamade repeated that the best interests of the child prevail in custody cases in Dubai.

[189] According to Ms. Hamade, guardianship is tied to finances. The guardian does not veto decisions of the custodian. Custody is not subject to guardianship. But the guardian can decide certain things, such as school choice, because he is paying for that.

[190] Ms. Hamade was asked in direct examination to comment on the opinions expressed by the opposing expert, Ms. Schildgen. Ms. Hamade stated that Ms. Schildgen’s commentary about the absence of the term, “best interests of the child”, in the legislation in the United Arab Emirates illustrates a fundamental misunderstanding on the part of Ms. Schildgen, likely caused by a language issue. This is the exchange between Mr. Smith and Ms. Hamade in that regard, from line 12 on page 23 to line 22 on page 24 of the same trial transcript.

MR. SMITH: Q. Right. So we’ll come back to the guardianship in a moment. But, Ms. Hamade, going back to what I was asking you about, the expression “in best interests,” and I was going to refer to page 5, paragraph 2, of Ms. Schildgen’s report. And in it, she refers to -- saying that the expression “best interests of the child” does not appear in the UAE legislation. It’s on page 5, paragraph 2, at the bottom. First of all, is this an issue that you discussed with Ms. Schildgen?

A. I beg your pardon, but obviously, the expert opinion of Ms. Schildgen did not have -- unfortunately, the copy I have does not have numbers, so I would have to go with one, two, three, four, five. At five would be number three. Is that what you refer to, accusations by father?

Q. No, there’s a number two on the bottom, and it says, “the guiding principle.” We have up on the screen.

A. Would that be the page before. I’m just waiting for my associate if she’s going to be able to find that page.

Q. It should be screen-shared with you too.

A. Okay. So that’s number two, the guiding principles for Dubai, UAE, goes to assess custody matters is Article 142 shall not forget the right of the guardian and personal guardianship. Custody shall not contradict and only where a few provisions of -- refer to the benefits of interest of the child but never uses -- yes, in fact, I discussed that with -- with Ms. Elena and she agreed that she has misunderstood, or, I don’t know really know how to say it.

The -- the Arabic language does not have the two words “best interest” in -- combined together in one word. The word “maslahah” in Arabic means the interests and the best interests. So you can use the word “maslahah” talking about -- referring to a best interest and not necessarily add a word to maslahah. So the law itself in the UAE in Arabic has best -- has maslahah as the translation of the law.

Every translation that we have of the law refers to maslahah as best interest, and Ms. Elena has agreed with me on that when we discussed, so obviously to her there was a misunderstanding. She did not -- she did not understand that how -- that’s how it works.

Q. And in terms of your experience in the courts when maslahah is being discussed, is that the way it’s interpreted?

A. As best interest, yes, indeed.

[191] Ms. Hamade stated in direct examination that settlement agreements between parents are respected by the courts in the United Arab Emirates.

[192] To change a family law judgment in Dubai, according to Ms. Hamade, there has to be a change of circumstances, an “impactful” one, and one year has to have passed since the judgment, and the test is what is in the child’s best interests.

[193] In direct examination, Ms. Hamade testified that shared or joint custody is recognized in Dubai, but generally not in disputed cases (as opposed to settled ones). In cross-examination, she stated that she has plenty of personal experience with settlements for shared or joint custody that have been approved by the courts in Dubai and incorporated into judgments.

[194] Ms. Hamade was asked in direct examination to comment on some of the concerns on the part of the mother in our case. There is no reason to believe that she will be arrested if she returns to Dubai, stated Ms. Hamade. Also, unless asked for by a parent, travel bans are not ordered by the courts in Dubai. Further, a promise by N. to not leave the country with the children could be incorporated into a court order, although whether such an order would be effective at the border is another question. As well, it is “simply not true” that F., as a Shia Muslim divorced woman living with no partner but with the children in Dubai, would be disadvantaged or discriminated against or restricted by the family court system in the United Arab Emirates. After the divorce, F. would be granted one year to remain in the country without a residency permit. After that one year, she could stay in the country in several ways: (i) continue to be sponsored by N., (ii) buy property, or (iii) use a “free zone”. There are free zones in Dubai, and there is nothing illegal about them, Ms. Hamade stated.

[195] The concept “free zone” requires some further explanation for the reader, and thus set out below is the testimony of Ms. Hamade from line 10 on page 35 to line 24 on page 36 of the same trial transcript.

The other option will be to buy property. So a lot of woman decide to buy property for one million dirhams, that will give them a residency permit on the property, and every year they will just have to -- to renew it administratively, in a way, which is not really -- there isn’t much of a requirement except the property -- to continue to provide them with a residency permit, or what we call a free-zone residency. And free zones are usually are -- are leasing, like, renting, like, almost virtual offices for a minimum amount of money where a residency permit can be issued upon.

Q. Okay. Is there anything unlawful about obtaining a free-zone residency or what you’re also calling a virtual office; is that an illegal process?

A. No, that is quite legal. I mean, people -- the fact that people don’t have businesses and they just rent a virtual office and get a licence to get a residency permit on it is not illegal at all, and -- on the contrary. The free zone -- this is their way of -- of getting income. And these free zones are -- are established by the governments of every emirates.

Q. And are there free zones within Dubai?

A. There are free zones in Dubai. There is the Airport Free Zone and Jebel Ali Free Zone. There are a number of free zones. They’re quite expensive, that’s why they’re -- they’re mainly used for residency permits in general. What are used are usually in Ras Al Khaimah and Fujairah because Dubai is expensive.

Q. Right. And when you say relatively expensive, what is expensive mean?

A. When we talk about Jebel Ali or the free zone of -- the Airport Free Zone, we’re talking about something of -- yearly around 35,000 dirham, 50,000 dirham, while in Ras Al Khaimah or Fujairah they will be around 15,000 dirhams for a full year.

Q. Okay. Now, in addition to -- you talked -- you mentioned the --

MR. CONWAY: Your Honour, excuse me, Your Honour, the expert just made two comments in Arabic. She made two comments in Arabic and she -- can she restate those two words that she used in Arabic?

A. Yeah, these are the names of the free zones in the emirates. We have two emirates called Fujairah and Ras Al Khaimah, and these are the two of the seven emirates in the UAE where these free zones are located, and they are part of these two emirates: Fujairah and Ras Al Khaimah.

THE COURT: Okay. Does that answer your question?

MR. CONWAY: Yes, Your Honour. Thank you.

THE COURT: Okay. Thank you.

[196] According to Ms. Hamade, F. can get a residency permit if N. buys a property in her name, even if it is subject to a trust agreement. Ms. Hamade stated that she works with residency and trusts law in Dubai. In cross-examination, she stated that there is nothing “grey” or “end-run” or “illegal” about it.

[197] In cross-examination by Mr. Conway, Ms. Hamade agreed with the following statements:

(i) that there is no best interests “test” in the United Arab Emirates;

(ii) the legislation states that re-marriage is a ground for a woman losing custody;

(iii) in Dubai, a father is permitted to physically punish his wife without consequences, in some instances; and

(iv) the guardian makes certain big decisions about the children, like education and religion.

[198] In cross-examination, Ms. Hamade emphasized that the Constitution of the United Arab Emirates (exhibit 12) treats both genders equally.

[199] In cross-examination, Ms. Hamade stated that she does not think that a court in Dubai would hold it against a mother that she had left Dubai for Canada and then stayed in Canada for a while before returning to Dubai.

[200] In cross-examination, Ms. Hamade acknowledged that the legislation, Personal Status Federal Law No. 28, Articles 142 and 181 (exhibit 13), sets out conditions that must be met by custodians and by guardians, and those conditions are not the same.

[201] In re-examination, Ms. Hamade testified that, although not in the legislation, there are factors that the courts in Dubai consider in employing the best interests of the child analysis, such as the age of the child, and the need for stability, as examples.

Elena Schildgen – Expert on Family Law in Dubai – Witness for the Mother

[202] In addition to her viva voce evidence at trial, reference must be had to Ms. Schildgen’s report dated October 4, 2020 (exhibit 9).

[203] On consent, Ms. Schildgen was accepted by this Court as an expert witness in the field of family law in Dubai.

[204] Ms. Schildgen has been a practicing lawyer in Dubai for thirty years, since 1990. She is the managing partner of her law firm in Dubai. She is also a member of the Bar in Germany. About 30% of her law practice is devoted to family law. She receives referrals from other lawyers in family law matters.

[205] Ms. Schildgen, like Ms. Hamade, is a Muslim lady, and she has two daughters.

[206] Ms. Schildgen’s evidence-in-chief, taken from her report and from her in-Court testimony, focussed on what she described as being the stark differences between custody and guardianship in Dubai.

[207] Per Ms. Schildgen, custody goes to the mother, while the father gets guardianship. Custodial rights are time-limited and can be revoked. The guardian makes all of the major decisions regarding the children (like morals, friends, education, and religion), and he controls all of the finances. Custody means day to day care. In the case of any dispute between the parents, the father trumps the decision.

[208] In direct examination, Ms. Schildgen stated the following about what really governs custody and guardianship matters in Dubai, from line 8 on page 11 to line 14 on page 13 of the trial transcript, November 17, 2020.

Q. Ms. Schlidgen, when -- just before we broke, you were describing the statutory set-up of guardianship, the statutory set-up of custody, and I would -- and I was putting to you the proposition -- the following proposition: if the statement were made to you that the statute says what is says about guardianship and custody, but the reality of the law is that the guardian, in practice, in court hearings, in court outcomes, the guardian does not overrule the custodian, that that’s not how the law ultimately comes out in courtrooms, how -- what would you -- how would you respond to such a statement?

A. This is not my experience and this is not what I experience in family life and daily matters and the cases that are brought to me and that I’m discussing with my clients.

Q. Okay. With respect to your reference on page five of your report, you make reference to the concept and you respond to the question that was asked of you in your report, the -- the question of “interest” and “best interests”, this phrase occurs in Dubai law, correct?

A. Yes, it does.

Q. And the word “interest” occurs in the statute itself, correct?

A. Yes, it is. It’s repeatedly mentioned

Q. Now in respect to that phraseology “best interests of the child”, how do you understand the law to make decisions when they go into a courtroom? How do you understand the law, how do you understand decisions to be made wherein that phrase ends up in the decision? How -- how do the judges approach the question in -- in respect to mother, father, child, how do they approach the question?

...OBJECTION BY MR. SMITH

...SUBMISSIONS BY MR. SMITH

MR. CONWAY: Q. Ms. Schildgen, in respect of your -- to your knowledge of Dubai law and in respect to cases that deal with guardianship and custody, describe and comment for us how the phrase “best interests” is used in those cases and what other parts -- what other factors go into the judge’s decision?

A. In the cases and the -- the judgments that are frequently reviewed, I can see no such criteria of decision-making of the judges. The judges are Sharia-trained lawyers, they are men and they follow the Personal Status Law in balancing what is referenced so frequently in the -- in the judgments, interests of the child, the mother and the father, evaluating violations that are brought in front of them, disputes that are brought in front of them, and evaluating on the basis of a principle of Sharia, applying the Personal Status Law and referencing the Articles. And on that basis, decisions are made as per the discretion of the judges in applying the law.

Q. On page six of your report you made reference to the appeal case 774.

A. Yes, that’s correct.

Q. Why did you make reference to that case?

A. That case displays a case where the custody is in dispute between the father and the mother, and the father was applying for the custody. In the assessment that I could follow and the -- the -- interpreted, this -- or described in the -- in the judgment, that the judges make an assessment of the interested child, mother and father, and according to Sharia principles and the law and the evidence presented in front of the judges, the judges, in their discretion, decided that the father should be the custodian.

Q. So the father in that case obtained both custody and guardianship of five children?

A. Yes, that’s correct

[209] According to Ms. Schildgen, in direct examination, it is the statute (and not the best interests of the child) that is the predominant force in court decisions in Dubai on matters of child custody.

[210] “It does happen” that custody switches from mother to father when the children reach 11/13 years old (depending on the gender), Ms. Schildgen stated in direct examination.

[211] In direct examination, Ms. Schildgen stated that she has never done a settlement agreement for joint custody in Dubai.

[212] In direct examination, Ms. Schildgen was asked some questions that are relevant to N.’s settlement proposal for a return of F. and the children to Dubai. She stated that a work visa in Dubai requires a written employment contract. Further, there is no such thing as setting up some “shell company” solely for the purpose of securing a residency permit. As well, trustee arrangements for property ownership are not popular in Dubai and are not encouraged by her law firm, although she is unaware of anything in the law that prevents such arrangements. It is the title to the property that determines the availability of a residency permit. Finally, F. cannot sponsor the children on her visa without securing a non-objection certificate from N., Ms. Schildgen stated.

[213] At the very end of her direct examination, Ms. Schildgen was asked by Mr. Conway whether there is a best interests test in Dubai. This is the exchange, at lines 1-17 on page 27 of the same trial transcript.

Q. I only have one last question for you, Ms. Schildgen, and that is in relation to the concept of “interest” as it is dealt with in Dubai law. So we -- we know in the various cases, the phrase “best interests” occurs, we know in Case 774 for example, best interest occurs. If I -- if I were to ask you, is there a best interest test in Dubai law, what would your answer be?

A. The interest that is in the judgments, evaluation will be always based on things like the parents’ religion, teaching of the Islamic faith, place of residence, income, mother remarrying, education. This is what, in my view, is taken care of in decisions being in the interest -- taking care of the interest child’s school, then the custody should go.

Q. Okay. If -- I’ll -- I’ll leave it at that. That’s the last question I have. Thank you very much for your evidence.

[214] Although it is unusual to do so, I have decided that the entire cross-examination of Ms. Schildgen by Mr. Smith must be reproduced in these Reasons. I agree with Mr. Conway that this Court cannot parse out an admission here, and one there, but rather must look at the totality of the witness’ evidence. The consequences of that review in totality is where I vehemently disagree with counsel for F., but that is another matter.

[215] Thus, set out below is the whole transcript of the cross-examination of Ms. Schildgen, pages 27-61.

Q. Ms. Schildgen, first I’m going to tell you that I practiced with Schildgen for a long time, but I now know how to pronounce it. So if I slip, my apologies. You’re the -- you refer to yourself as the Managing Partner of your law firm?

A. That’s correct, yes.

Q. Right. And within your law firm, there are five or six lawyers, is that right, six I counted?

A. Yes, we have six lawyers in total.

Q. And amongst the six lawyers, two of you do some family law work?

A. I did -- I did not get that?

Q. Amongst the two -- amongst the six lawyers, only two of you do family law work?

A. Yes, that’s -- no, actually three of us.

Q. Okay, well we’ll take a look. I’m going to pull up your website then, and hopefully you’ll be able to see it on your screen and we’ll maintain power. Are you able to see your firm name and identify that as your website for me?

A. That’s correct, yes.

Q. All right. And if we go over to page four, this is the drop-down window from your website, which I -- shows your partners and/or lawyers that you work with?

A. So far I cannot see anything...

Q. Yeah, we...

A. ...on my screen.

Q. ...we just have to get there. It doesn’t like all the totals and colours, it just goes a little small. Are you there?

A. Yes, my friend.

Q. And so on the far right there’s a lady whose name is Mariem...

A. Yes.

Q. ...and you refer to her as a “senior lawyer”?

A. Yes.

Q. And she does family law work?

A. Yes.

Q. And who else is....

A. The family law work, my colleague Mariem and my colleague Tarek actually.

Q. Okay, so Tarek, you say, does family law. All right, so if I go back to the bio pages for the various people, there -- yours is on page five of the document that we’re going to show you. And we’ll have to make it a little bigger, and if you can see -- if you can’t see the writing, you’ll tell us and we’ll make it bigger, okay? You can see it now?

A. Yes.

Q. In the document on page five, if you go right above the work “Background”, it says what your language -- languages are?

A. Yes.

Q. And -- and you state that Arabic is basic?

A. Basic, yes. I understand more than I speak.

Q. All right. And you distinguish that between other languages such as English where you say you’re fluent?

A. Yes.

Q. You also then go on to talk about your areas of focus, and if you go down to your name at the bottom, it says -- I’m just going to call you by your first name: “Elena’s work focus mainly on”, do you see that?

A. Yes.

Q. And included in the work that you focus on, bullet point number three is: “Advising international corporate clients and setting up of companies in the United Arab Emirates, including the free zones.”

A. That’s correct.

Q. How many free zones are there?

A. I don’t know the exact number, but....

Q. Approximately 50?

A. I would say around 30, 35.

Q. All right. And do they each have their own set of regulations?

A. Yes, they do.

Q. Do you know the regulations of all of them?

A. They are very similar in context, but we do....

Q. Answer my question. Do you know -- do you know the answer -- do you know the regulations of all of them?

A. Not all of them.

Q. All right. With respect to your other areas, if we go to your first bullet point, you say that you’re involved in “drafting and negotiating commercial and corporate contracts”, right?

A. Yes, correct.

Q. And you’re -- you work, in the second bullet point, “in the developing and setting up of corporate structures”?

A. Yes.

Q. And then the third point is what we just talked about on free zones, right?

A. Yes.

Q. And the next point: “Advising clients on multi-jurisdictional corporate re-structuring”, right?

A. Yes.

Q. I’m going to skip the next one: “And coordinating of” - we’ll come back to that one. We’re go to the next point: “Advising clients on trademark registrations”?

A. Yes.

Q. The next one is: “Specialized in the following fees: DI -- D-I-F-C world registration, succession planning and the establishment of foundations”, right?

A. Correct.

Q. So the bullet points, there’s seven of them, and the only one that is not corporate or related to the topics I just discussed is the third one up from the bottom, and it reads: “Coordinating legal procedures at German courts concerning company law, family law and labour law.” That’s what it says, right?

A. Yes.

Q. That’s what you hold yourself out on your website as -- as having your main focus on.

A. Correct.

Q. You don’t go to court in Dubai?

A. No, we don’t have the right of audience. No non-National lawyer has the right of audience.

Q. All right. And that’s a different question than I -- or different answer that I asked you. You do not go to court in Dubai?

A. No, I don’t go....

Q. You’re not allowed to go to court, I understand that, but you also don’t go to court, right?

A. No, I don’t go to court.

Q. So you’re not there to observe evidence going in and what judges do and what questions they ask, agreed?

A. Not in court, no.

Q. And you also don’t have the right to even participate in what we call the “second chair” in some ways, you just cannot be present?

A. That’s correct.

Q. So what you understand about the way the courts deal with cases is what you understand from what you read in the -- in cases that are released, correct?

A. In cases that are released and...

Q. Yeah.

A. ...I work together with a local attorney.

Q. Right. And so there’s not a public record in the sense that you can’t go onto the government website and get copies of reasons that easily, can you?

A. There is a collection of judgments that are available, yes, there are.

Q. And everybody knows what the big name ones are, right?

A. Excuse me?

Q. Everybody knows what the important judgments are?

A. Yes.

Q. And you considered those before you gave your opinion?

A. Yes.

Q. Now while we’re on this -- the website, who maintains the website in your firm?

A. The IT employee that maintains the website.

Q. An I to assume that that person is given instruction by someone in the firm on terms of content, what would go in it?

A. Yes.

Q. And that person is you?

A. I supervise this as well, yes.

Q. And you’re careful that the information on your website is accurate?

A. Yes.

Q. I’d like you to go page seven of the website, which will go back up on the screen. Not yet. So this is a -- the -- the website page which identifies your -- your senior lawyer Mariem, right?

A. Okay.

Q. And well it is or it isn’t? And you’ll -- when you -- I just want to be clear, when you say “okay”, you mean yes?

A. Yes, that’s correct.

Q. All right, sorry, I didn’t mean to be abrupt. I just want to make sure we have a clarity of answer on it. And if we go down to the bottom of her webpage, she identifies her work focuses on a number of things, but she includes: “Specialist for UAE and German family law and the inheritance law, as well as UAE probate matters.” Do you see where she says that?

A. Yes, I do.

Q. And -- and is that correct?

A. Yes.

Q. Did she -- you consult her before you read -- you rendered your report?

A. We discuss matters of family law, yes.

Q. Did you discuss your report with her before you completed it?

A. No.

Q. You see that -- if we just go back, and I’m going to take you back to the first page of your -- sorry, one second, I got to get to the right page. My apologies. No, sorry, just one -- page 11 of the PDF we have up is another page from the website called “Publications”?

A. Yes.

Q. All right. And there are four articles published, or listed as being published on your website, agreed?

A. Yes.

Q. None of them are by you?

A. Yes.

Q. And the only one related to family law is Mariem, do you see that in the right-hand side...

A. Yes, I do.

Q. ...Children [sic] and Mother -- Child and Mother, and it’s titled Shared Custody in the UAE, do you see that?

A. Yes, I do.

Q. Did you read this before you prepared your report?

A. Yes, I did.

Q. You read this article?

A. Yes.

Q. You’re aware that when you prepare an expert’s report, you’re supposed to cite all sources of your information? Did you know that?

A. I did not.

Q. And you didn’t know you had to tell us about information you relied on?

A. Excuse me?

Q. You didn’t know that you had to tell us about information you relied on?

A. No, no, no, no, that’s not what I was going to say.

Q. Okay. Well let me try to clarify this. Did you rely on this article when you wrote your report?

A. No.

Q. But you did read it?

A. I did read it.

Q. So what I’d like you to do is to go to page 12 now, and this is a copy from the web -- sorry, from the internet for your -- your firm’s website of -- and it’s titled Shared Custody in the UAE, you see that?

A. Yes.

Q. All right. And that’s again your partner Mariem?

A. Yes.

Q. And did you read this?

A. Yes, I did.

Q. And are the contents of it true?

A. Yes.

Q. So you were aware when you wrote your report that,

On November 26, 2018, the Dubai Court of Appeal had issued the first judgment of its kind in the UAE that grants shared custody to the divorced parent, similar to that as know in -- from the European jurisdictions.

MR. SMITH: Q. You were aware of that?

A. Yes.

Q. You forgot to mention that in your report, did you?

A. No.

Q. You chose not to mention it in your report?

A. The case is different. It has not -- no relevance to the case that we have here at hand.

Q. In that case, the parties were not Muslims, they were...

A. That’s correct.

Q. ...Germans. And the Court....

A. They are Spanish.

Q. There’s -- well with respect, they decide -- they decided it under the law of Spain, right, because non-Muslims and non-residents in Dubai, if they’re foreign, can choose to apply a law if they both agree, that’s right, right?

A. They can choose their home country, so they are Spanish.

Q. Right. And they chose their home country, and the law of Dubai provided for and the Court of Appeal says, we will apply that law because the parties have agreed to do that?

A. In that case, yes.

Q. Yeah. And what the law said was they could have joint custody, and the parties have agreed to have joint custody, therefore we will apply that. That’s what happened in that case?

A. As an exception.

Q. That’s what happened in that case, yes or no?

A. That’s what happened in this case.

Q. Thank you.

MR. SMITH: I’d like to mark the copy of the website for Ms. Schlidgen’s law firm as the next exhibit, Your Honour?

THE COURT: Is there any objection?

MR. CONWAY: No objection.

THE COURT: Thank you, Mr. Conway. The article entitled Shared Custody in the UAE from the firm website, that will be the next numbered....

MR. SMITH: No, Your Honour, the entire website, which includes the article.

THE COURT: Oh, okay. The....

MR. SMITH: It’s a total of 12 pages.

THE COURT: Okay, the entire website con -- with the 12 pages, which includes the said article, that will be the next numbered exhibit. What exhibit number is it?

MADAM REGISTRAR: Exhibit 12 [sic], Your Honour. Sorry...

THE COURT: Exhibit...

COURT REGISTAR: ...22...

THE COURT: ...what?

COURT REGISTRAR: ...sorry, 22.

THE COURT: Thank you.

EXHIBIT NUMBER 22: Elena Schildgen’s law firm website, including article entitled Shared Custody in the UAE. - Produced and Marked.

MR. SMITH: Q. I just want to look at a couple specific portions of your report. I just need to organize my paper, excuse me one moment. While I’m doing that, you’re aware that the UAE recently announced some upcoming changes to the law regarding cohabiting persons?

A. Yes.

Q. And you’re aware that soon it will be lawful for cohabiting persons of the opposite sex to live together?

A. That’s the announcement, but the law has not been changed yet.

Q. It was just announced a week or so ago, correct?

A. That’s correct.

Q. And you’re also aware that the UAE is lifting restrictions on things such as not consuming alcohol?

A. Yes.

Q. And you’ll agree with me that those are steps that are intended to move to more -- a more free and open society?

A. Yes.

Q. Now in your report, Question (b) that was posed to you, I’m going to take you back to Question (b). That’s on page three. “Does the court of Dubai apply a best interest assessment as part of the domestic Sharia law to decide custody matters?”, right?

A. Yes.

Q. That question was specifically asked of you? Okay. And your answer to that question is really found in paragraph two on page five of your report, right?

A. Yes.

Q. All right. And as His Honour pointed out -- well first of all, Mr. Conway was pointing out too, it doesn’t say “best interests” in the legislation, and that’s what you’re careful to point out in paragraph two, agreed?

A. Yes.

Q. All right. And I put it to you that there is no expression in Arabic which equates to “best interests”?

A. There is only one word in Arabic that says “interests”, yes.

Q. Right. So to say “best interests” in Arabic can’t be done, and that’s why the legislation refers to “the interests of a child”, agreed?

A. Yes.

Q. And you were aware of that when you wrote your report, right?

A. I know that the Arabic only tell you it’s only “interests”, yes.

Q. Okay. You didn’t point that out in your report, did you? We’re waiting.

A. There is -- it never uses the term “best interests” of the child.

Q. Right. But...

A. And they....

Q. ...you weren’t -- you -- you realized you had an obligation to be fair when you signed this report?

A. Yes.

Q. And in fact, you signed what’s called a 20.1. I’m going to take you to page 15 of the Exhibit we’ve been looking at. It’s part of the expert’s duty form that we have to have signed here.

A. Yes.

Q. You signed this?

A. Yes, I did.

Q. And you understood it was important for the Court to have this?

A. Yes.

Q. And you acknowledged in Paragraph (a) that you had a duty to provide opinion evidence that was fair, objectionable -- sorry, objective and non-partisan?

A. That’s what I agreed to.

Q. And you did not, in paragraph two of your affidavit, point out that in a piece of legislation, which is written in Arabic, there is actually no phrase for “best interests”, you didn’t do that?

A. I mentioned that in the Personal Status Law it refers to “interests” not “best interests”.

Q. All right. But you didn’t point out that in Arabic there was no expression within that language of “best interests”?

A. No, I did not.

Q. And you know from your experience that “interests” within the legislation specifically means “the best interests of the child” and that’s the way it’s been applied by your courts?

A. I suggest that it’s referred to that way, yes.

Q. You didn’t mention that in your report either, did you?

A. I referenced it.

Q. Well with respect, you didn’t reference it in this part of your report, did you?

A. No.

Q. It’s a little misleading, wasn’t it?

A. I didn’t read it that way.

Q. Where you stuck it is in a different part of your report, in paragraph three in the middle of page six. You see that, number three, the paragraph that starts off: “As referenced”?

A. Yes.

Q. And Mr. Conway was good enough to provide us with a copy of case -- Cassation Number 774 of 2018, Personal Status. We’re going to pull that title up on the screen. All right. And that’s a -- a copy -- that’s the copy of the case that you’re referring to on page three of -- or page six of your report, correct?

A. Correct.

Q. And the cases in the UAE are identified by numbers and not names?

A. That’s correct.

Q. I’d like -- this is -- and, sorry, to be clear, this is their -- the case you’ve referred to, correct?

A. Yes.

Q. All right.

MR. SMITH: I’d like to mark that case, Your Honour, as our next exhibit?

THE COURT: Is there any objection?

MR. CONWAY: No objection.

THE COURT: Thank you, Mr. Conway. Exhibit 23 is Cassation Number 774 of 2018.

COURT REGISTRAR: Exhibit 23 entered, Your Honour.

THE COURT: Thank you.

EXHIBIT NUMBER 23: Cassation Number 774, 2018. - Produced and Marked.

MR. SMITH: Q. So just so that we understand the process here, the Court of Cassation is an appellate level court, right?

A. It’s the final court, yes.

Q. Okay. And this was an appeal. There was first a judgment at what we call first instance, right, at a trial?

A. Yes.

Q. And then there was an appeal from the trial decision?

A. Yes.

Q. And then there was a further appeal to the Court of Cassation?

A. That’s correct.

Q. All right. And I want to make sure we’re all understanding how to read the judgment, so we’ll just take a look at it. The order of the Court of Appeal or -- what the Court of Appeal says - it starts at the bottom of page three of this document where it says: “The Court”, right? So this is the Court writing at the start of the bottom of this page, agreed? What it’s done before is it’s told us about the history of this case?

A. Yes.

Q. And the Court -- and this is done by a panel. If we go -- you don’t have to go back by the first page, but there are I believe four judges on this panel?

A. Yes, there are.

Q. And it’s a unanimous decision?

A. Yes.

Q. And what the Court was doing when it’s writing, it had to consider whether the lower appellate court properly either interfered or didn’t interfere with the trial judgment, right?

A. Correct.

Q. And in doing so, they also had to determine whether the trial judge itself had properly exercised the discretion afforded to the trial judge, agreed?

A. Yes.

Q. And the -- what they say on this is specifically on the next page, and we’re going to go to -- sorry, it’s page five. And there’s a paragraph that says, “Whereas the appeal we took into consideration” and it’s at the bottom of this screen?

A. Yes.

Q. Read that out loud for us?

A. Just a minute. Yes, keep track.

Whereas the appealed ruling took into consideration all of the foregoing, and stated that the custody although is related to the three rights, namely: the right of the father, the right of the custodial parent and the right of the child, the right of the child takes precedent. And if it is in the best interests of the child to stay with any of his parents, the custody shall be awarded to that parent, and the custody shall revolve around the interests of the child whether existing or not, and the Islamic Sharia considered that the protection of the child’s rights takes precedence over that of the guardian.

MR. SMITH: Q. That’s what the law of Dubai is, correct?

A. Yes.

Q. And in the particular circumstances of this case, the father was seeking to obtain custody, primary day-to-day care of the children from the mother?

A. Yes, that’s what...

Q. And he was...

A. ...the judgment is about.

Q. ...successful? And he was successful?

A. Yes, he was successful.

Q. And he was successful, and the Court of Appeal upheld the decision because, as part of the reasoning, they were satisfied that the Court had considered and put the child’s best interests above all else, agreed?

A. Yes.

Q. Okay. And we don’t know anything about the underlying facts of the case, agreed?

A. No.

Q. You don’t agree with me, or you do not know anything about them? Which is it?

A. I know of this judgment.

Q. Do you know if the mother was a drug addict?

A. No, I don’t.

Q. And you don’t know why the Court exercised its discretion given the particular facts of this case, do you?

A. No.

Q. There are literally hundreds of judgments in the Dubai cases which refer to the same principles in this way, agreed?

A. Yes.

Q. And they all make it patently and obviously clear that it is the best interests of the child that will determine all decisions of the Court?

A. After the consideration of all the facts of the case, yes.

Q. Thank you. And that applies if someone is trying to seek custody of the children when a boy turns 11 or a girl turns 13 and it’s opposed, agreed?

A. Yes.

Q. The Court has to consider the best interests of the children at that time?

A. Yes.

Q. Regardless of what the legislation says?

A. Yes.

Q. And when the Court is considering whether there would be a change in custody if a mother remarries, they also must consider the bests interests of the children?

A. Correct.

Q. There is nothing automatic about any of those provisions, it’s always subject to the best interests of the children?

A. After consideration of all the factors, yes.

Q. Right. And some of the factors the Court is going to consider would be whether the children are healthy?

A. Yes, that’s in the case relevant, sure.

Q. If their mother’s mental health is well?

A. One of the factors, it could be, yes.

Q. If the father’s mental health is well?

A. Correct.

Q. If the children’s mental health is well?

A. Correct.

Q. If the children have prospered and flourished under the existing arrangements?

A. That’s also a factor that will be considered, yes.

Q. They will also look at whether the parents have been cooperative and trying to do the best together for the children?

A. Pardon me?

Q. Okay. So when my friend asks you about a list of factors, the simple answer is, the list of factors is as long as the case needs to have consideration of factors, anything can be considered that’s relevant to what’s important for these children, agreed?

A. That’s agreed.

Q. Now you also mention in your report, there’s these potential changes of custody. If you go back to your -- the question that was asked of you in 1(b). So I’m going back to your report. Sorry, one second. It’s in -- it’s in your analysis where you talk about a child being reviewed -- mother’s always getting custody unless a found -- finding of unfitness. Do you remember that in your report?

A. Yes, of course I do. It’s the facts that’s on the page.

Q. But you reviewed the pleadings that have been filed in the court in Dubai?

A. I cannot follow you at the moment.

Q. I’m sorry, I couldn’t hear you?

A. I cannot just follow you at the moment. Can you repeat that please?

Q. Oh, you can’t, oh, I’m sorry. Did you review the court document that N. had filed in the Court in Dubai?

A. Which one was it, that, the other one, sorry?

Q. The reconciliation proceeding? You don’t recall?

A. Whose -- whose case was that?

Q. That’s -- you know, the initiating process where he has to say first, please come back and I want access with the children, and if that doesn’t happen, he can then bring his claim for custody?

A. I saw papers to that effect, but I cannot now recall whether that’s exactly what it was telling you. Can you show it to me?

Q. I -- what I’ll do is I’ll show you both of them. First we’ll pull up is Exhibit 1, and we’re going to go to -- I think it’s Exhibit D. Sorry, one second, we’ve just got to get our exhibit right. All right, we have it pulled up on the screen in front of you, a copy of Exhibit 1, and on the -- page 17 of that document is an English translation of the document that we understand to be in the Reconciliation and Court Circuit?

A. Yes.

Q. Did you...

A. I -- I....

Q. ...review that? Sorry?

A. I saw that, yes.

Q. Okay. Sorry, we’re having a little bit of a lag. I’m sorry, if I’m -- if you -- if I talk over top of you, you have to tell me because I’m getting a lag on my end, okay, and...

A. Okay.

Q. ...I don’t mean to.

A. Yes, I will do that.

Q. All right, so in this document he’s asked for -- if we scroll down a little farther in the order: claiming the wife to return to the matrimonial home to allow seeing children in custody, right?

A. Yes.

Q. You’re familiar with that?

A. Yes, I am.

Q. In other cases and not just this one?

A. Yes.

Q. So that’s how one has to start a proceeding in Dubai, agreed?

A. Yes, correct.

Q. And he has to ask for the return home because that’s part of what’s required in law, he has to make that request?

A. Correct.

Q. And he has to then -- he asks for access, right?

A. Okay. Yes.

Q. And if that doesn’t happen, he can then start the next step of the proceeding? And you -- have you looked at what he started in the next step of the proceeding? Do you recall?

A. It’s -- I only had this paper.

Q. Okay, what I’d like you to go to, we’re going to take you to Exhibit 2 from this proceeding, and we’re going to take you to....

A. This document I don’t know.

Q. Okay, so this is page 60 of the record, and I just want to go down to what he’s claiming, all right? And you can take a look at this with us.

A. Okay.

Q. Okay? So we need you -- let’s make it a little smaller so we can see more of the page, and we’ll scroll to where the claims are. Okay, so I guess what we should do is start at the facts pieces as well. Okay, and I think it will say “fact” if we scroll up one more. Okay, see where the facts start? I’ll just let you read through the fact pieces, and you can tell us when you’re done after “Principles” and I’ll scroll down.

A. Yes, I’m done.

Q. Scroll. That didn’t work, I couldn’t scroll. So I’ll just keep getting you to keep reading, and we’re just going to go through the -- that part.

A. That’s too fast.

Q. Sorry, you tell us if you need to go up further.

A. Can you move it down please again?

MR. CONWAY: I’m going to put Mr. Smith on notice, that if he’s going to ask any specific and detailed questions in regards to this document, the document should be put to the witness and then the witness has been given an opportunity to read it rather than in this -- this restricted fashion.

THE COURT: I will say this to you, Ms. Schildgen, do not be shy about taking as much time as you need to read the words you’re being asked to read. Do not rush your reading, and if you want the document moved up to look at what’s above, please say so.

THE WITNESS: A. Okay.

MR. SMITH: We can also give the witness the control of the mouse and she can scroll as she chooses, Your Honour.

THE COURT: We’ll see if Ms. Schildgen would like that, but we’ll just allow her to take her time what’s being -- is being....

THE WITNESS: A. Well if I could scroll down myself, that would be much easier.

MR. CONWAY: Yeah, I -- I can tell, Your Honour, I’m going to object as soon as Mr. Smith asks any questions, so we might as well do it now and let Ms. Schildgen look at it at her leisure.

THE COURT: Okay.

MR. CONWAY: Do we want to take the lunch break and let her look at it?

THE COURT: Well I don’t know about taking the lunch break because I’d like to try to get Ms. Schildgen out of here.

MR. CONWAY: Right, right, right.

THE WITNESS: A. Okay.

THE COURT: We can take -- we can take a break. Ms. Schildgen, would you like to take a recess so that you can read through this on your own time in private during the recess? Would you like to use....

THE WITNESS: A. Yes, that will be good.

THE COURT: Okay. So we will take a recess for, let’s say ten minutes, and let’s come back in ten minutes, and if Ms. Schildgen wants more time, I’ll hear that then.

MR. SMITH: Sorry, Your Honour, I -- I just need some direction, and I don’t think this will be complicated. Obviously I can’t communicate with someone else’s witness, I’ll send a copy of this exhibit to my friend and they can forward it to the witness. Can we do it that way?

MR. CONWAY: Yeah, actually, that -- that’s a good idea. Can we do that now though?

MR. SMITH: I’m also there. When I’m also -- it’s probably I’m going to ask a question, and it’s about the agreement, so I’ll send that at the same time and she can look at it and see that as well.

THE COURT: Okay, thank you. So we will come back in ten minutes please. Thank you.

MR. SMITH: Thank you.

R E C E S S

U P O N R E S U M I N G....

THE COURT: Ms. Schildgen, have you enough time?

THE WITNESS: A. No.

THE COURT: Have you had enough time, ma’am?

THE WITNESS: A. No.

THE COURT: Okay, so you would like some more time?

THE WITNESS: A. Yes, please.

THE COURT: Now we have some options. We can either take another short recess of ten minutes or so, or we can take the lunch break now. What would you like to do?

THE WITNESS: A. I’m fine with ten minutes. Ten minutes would be enough.

THE COURT: Okay, so we will -- now, I should ask Mr. Smith and Mr. Lokan, the only reason I would do this, another short break, is if we can get this witness out of here. So without asking you to be precise, can we wrap it up in another 30 minutes if we came back in ten minutes?

MR. SMITH: Certainly.

THE COURT: Okay, so we’ll take another ten minute recess. Thank you.

MR. SMITH: Thank you, Your Honour.

R E C E S S

U P O N R E S U M I N G....

THE COURT: Okay, good afternoon, Ms. Schildgen. This is up to you, ma’am, have you had enough time?

THE WITNESS: A. Yes, that’s fine.

THE COURT: Go ahead, Mr. Smith.

...OBJECTION BY MR. CONWAY

...SUBMISSIONS BY MR. CONWAY

...RULING BY HIS HONOUR

...SUBMISSIONS BY MR. SMITH

CONTINUING CROSS-EXAMINATION BY MR. SMITH:

Q. So what I have on the screen -- what we’ll pull up on the screen is the copy of the document that we sent, which is the -- we call it a “pleading”. I don’t know what you call them in court documents, and it’s the claim that he brought, and you’ve read through that now?

A. Yes, I did.

Q. And you’ll agree with me that there’s no suggestion either by way of an allegation or a statement of fact, or even a request for a finding, that he’s asking for a declaration or a determination that F. is an unfit mother? There’s nothing like that in this claim?

A. And that’s true.

Q. And short of her being an unfit mother, or a finding by a court of that, it’s well established and it’s your opinion that if she returns to Dubai, she will have custody of these children, agreed?

A. Yes.

Q. Sorry, you have to speak up.

A. Yes.

Q. Thank you. And when you go through your report on changes of custody, case six of your report, paragraph three where you outline these possible changes for unit -- because of unfitness for custody, do you see that?

A. Yes, I do.

Q. You weren’t trying to suggest to the Court that in the circumstances of this case, that that order would be made?

A. I’m referring to accusations by a father.

Q. Yeah, not this father?

A. It says “accusations by a father as to...

Q. All right.

A. ...mother’s consciousness.”

Q. All right, so let’s be really careful. You did not want to leave the Court with the impression that, in this particular case, there could be a finding of an unfit parent, that’s not what you were trying to do, agreed?

A. Again please?

Q. You were not trying to leave this Court with the impression that there could be a finding of an unfit parent?

A. No.

Q. All right. And when you go down to page seven at the bottom, you see that the para -- paragraph that says: “The mother in this case travelled with the children with the consent of their father after separation in Canada, the country where they...

A. Yes.

Q. ...own property and have family ties.” And just...

A. Yes.

Q. ...read through that paragraph right to the end.

A. Now, you want me to read loud?

Q. No, you can just read it to yourself. It’s only about ten lines.

A. Yes.

Q. In your conclusion in that paragraph is: “The children are still in an age where they, as per the understanding of Sharia, [that we -- that be - sorry], would be with their mother as custodian.” That’s your opinion, isn’t it?

A. That’s what I wrote, yes.

Q. That in the facts of this case, if the matter is determined by the UAE Courts, she’ll have custody of the children?

A. Yes.

Q. All right. And in terms of dealing with changes and the conflict between a parent that has custody and a parent who has guardianship, people in the UAE that separate and have children regularly turn to agreements to share decision-making?

A. Share in the decision-making.

Q. And also, to share the time?

A. Yes, of course.

Q. And I put it to you that you have drafted literally hundreds of these agreements over your career?

A. I have.

Q. And they get put into and made in judgments of the Court?

A. Yes...

Q. And they...

A. ...they could be.

Q. ...are enforced as judgments of the Court?

A. Yes.

Q. You forgot to mention that in your report, did you?

A. I did not see a place in my report for that.

Q. So when you were talking about the Court and joint custody, you didn’t find a place in there or didn’t think it would be relevant to this Court to say that the Court can order these things where the parties agree? You didn’t think that was appropriate and...

A. I don’t...

Q. ...fair?

A. ...understand the question.

Q. All right, I’ll withdraw the question. Sorry, in -- in -- one of the specific questions that was asked of you, and I’ll go back to page four -- I’m sorry, I’ve given you the wrong number, page three, number (c) -- or letter (c), the question -- specific question was: “Are there any restrictions for the mother entering, i.e.: returning to Dubai, UAE or while living in Dubai, UAE?”, do you see that?

A. Yes, I do.

Q. Okay. So the first question was: “Were there any restrictions for her returning to Dubai?” Do you see that?

A. Yes.

Q. Not about her remaining, but first of all returning to Dubai. Nowhere in your report do you comment on whether or not, if she were to come back to Dubai, if she could be incarcerated or arrested, agree? You don’t even comment on that?

A. That seems to be left out.

Q. Yes. And you’ll agree with me having reviewed the court proceedings, that N. has made no request from the Court in Dubai that she be incarcerated or punished in any way, agreed?

A. That’s correct.

Q. And you’ll also agree with me that the Court in Dubai is not going to reach out of its own volition and take steps to penalize her or have her incarcerated if she returns?

A. If there is no arrest warrant, no.

Q. Yeah. And the Court’s not going to issue an arrest warrant unless somebody would ask for it, agree?

A. No, there has to be a proper proceeding.

Q. Yeah. And the proper proceeding would be somebody has to ask for it?

A. That’s correct, yeah.

Q. And you have no knowledge that any such thing was ever asked for?

A. That’s correct.

Q. Were you asked by friends who retained you to make inquiries of the Court to see whether there were any charges or arrest warrant sought for her, were you asked to look into that?

A. No.

Q. Sorry, you shook your head and I couldn’t hear you?

A. No.

Q. Now the second document we sent to you that you were going to look over at the break was a -- an agreement that has been put forward by N. You’ve read that?

A. Yes, I did.

Q. And they didn’t show this to you before you were asked to render your report?

A. No.

Q. And if they had, your opinion would have been that these terms can be incorporated in an order of the Court in Dubai, right?

A. That’s correct.

Q. And these are the sort of agreements that you literally, again, have done hundreds of times?

A. They compare to the agreements that we do, yes, that I would write -- do previously also.

Q. And the Court has made orders in your other matters restricting the ability of one or more of the parties to move the children to a different jurisdiction, like...

A. I don’t...

Q. ...Pakistan?

A. ...recall. I don’t recall.

Q. Well you don’t doubt that the Court in Dubai can say these children cannot be moved to live in Pakistan, they can do that?

A. If it’s the agreement, they can.

Q. Yes. And also, the Court could say the children will be allowed to travel with mother or to travel with father to certain places for vacations, they can do that if the parties agree?

A. That’s correct.

Q. Are you Muslim?

A. Yes, I am.

Q. And you’ve lived in Dubai for 30 years?

A. Yes.

Q. And you’ve raised your children there?

A. Yes.

Q. Two of them?

A. Yes.

Q. Boys or girls?

A. Two girls.

Q. Two girls. How old are they now?

A. Twenty-one and 19.

Q. And you say in your material that there will be restrictions on Ms. -- Ms. F. as a divorced family -- a divorced Muslim woman, right?

A. Yes.

Q. Well you’re aware now that she can stay in Dubai on a one-year grace period on a residency visa?

A. That’s if the visa is issued.

Q. Right. Oh, I’m sorry, I just want to make sure we understand each other. That -- she can do that and they -- that temporary visa can be issued?

A. That’s correct.

Q. Right. And when you refer to that in your report - sorry, I’ve just left my page, give me one minute - that at page 11 of your report, there’s a paragraph at the bottom that starts off with: “Hence”.

A. Yes.

Q. It says, “Hence, the mother in this case will lose her dependent residency visa after divorce because her husband in this case cannot continue to sponsor her.” And then you go on and you say, oh, “...until only recently.” So...

A. That’s correct.

Q. ...it’s been -- it’s -- that has been fixed and she can remain there for the year?

A. For one year, yes, right.

Q. And in fact even after the divorce, N. can continue to sponsor his wife? You’re aware of that too, aren’t you?

A. No, that’s not correct.

Q. You don’t agree with that one?

A. No, I don’t agree with it.

Q. All right. Now my friend referred you to the expression of the mother being “a mere caregiver” as a -- this is what custody was, right?

A. Yes.

Q. All right. But if they agree to share custody, she’ll participate in decision-making?

A. Whatever they agree to in the agreement, that they will share, they share.

Q. All right. And when you talked about the right of guardianship, including doing things such as making decisions with respect to, you know, activities and -- and friends and that sort of thing, do you recall that evidence you gave? Right?

A. Again please?

Q. Well you -- are you suggesting that the guardian, if he were a sole guardian, N. could make decisions and choose the children’s friends?

A. That’s -- yes, in a way of -- well you asked me before whether I’m a Muslim, so we are referring to Muslim society, where also maybe certain friends are not the right friends for Muslim girls or boys, and this is where the guardian can object.

Q. All right. But in terms of day-to-day stuff, if the little girl Z. wants to have a play date with another little girl, he doesn’t have a say in those things, mom gets to decide that?

A. That’s usually how it works.

Q. Right. And if Z. is going to get enrolled in ballet or if she’s going to play soccer or if she’s going to do whatever else a little girl does, the guardian doesn’t get to interfere with those things, mom gets to decide those things?

A. In most of the families, yes.

Q. Yeah. And if there is a dispute about it, the fallback is always going to be that the Court will decide having regard to the best interests of the children?

A. That’s the principle, yeah.

Q. Yeah. And that’s the principle that’s applied in the Court, yes?

A. Yes.

Q. Okay. And once these judgments and agreements are turned into -- judgments are taken out, the ability to vary and change them is limited, is it not?

A. I could not understand you. That’s not...

Q. So if a judge...

A. ...I don’t have here....

Q. ...if the Court -- sorry, I will keep my question, and I understood -- put my hand up and I apologize. If the parties have a judgment providing for certain things with respect to the parenting of their children, right, assume that for a moment, and the Court -- one of the parties wants to change the terms...

A. Yes.

Q. ...they can go back to the Court and ask for a change, correct?

A. They can.

Q. Right. But the test to get a change is that there has to be a major change or a significant change to allow them to do that, you agree with that?

A. I agree, yes.

Q. And that change has to be a new development, right? And it also...

A. Yes.

Q. ...can only be changed even if those things are going to be in existence, it can only be changed if the change is in the best interests of the children?

A. Correct.

MR. SMITH: Your Honour, an indulgence for a moment?

THE COURT: Yes.

MR. SMITH: Those are my questions, and Mr. Lokan I don’t think has any questions. He does not.

THE COURT: Thank you. Just one moment. Mr. Conway, do you have any re-examination?

MR. CONWAY: Yes, short -- short questions, Your Honour.

[216] On the penultimate question of the relationship between child custody law in Dubai and the best interests of the child, it was suggested to Ms. Schildgen that there are “hundreds of judgments” out of the courts in Dubai that “all make it patently and obviously clear that it is the best interests of the child that will determine all decisions of the Court”, and Ms. Schildgen agreed with that. She also agreed that the said rule applies regardless of whether the decision is being made at first instance, or when the children turn certain ages, or when the mother remarries, or whenever the decision is being made (trial transcript, pages 44-45).

Carol-Jane Parker – Expert on Primary Caregiver-Infant Separation – Witness for the Mother

[217] Following a voir dire, due to a mid-trial ruling made by this Court, reported at N. v. F., 2020 ONSC 7123, the report that had been prepared by Ms. Parker was not permitted to be filed as an exhibit at trial. There were, however, some exhibits filed during the course of Ms. Parker’s testimony (exhibits F and 32-37), such as testing reports and checklists. Otherwise, her evidence consisted of her in-Court testimony.

[218] Unlike the other expert witnesses who testified in this case, the admissibility of Ms. Parker’s evidence was contested. In its written mid-trial ruling, this Court permitted Ms. Parker to give expert opinion evidence in the field of the potential impact on infants, including Z. and E., when they are separated from their primary caregiver.

[219] Ms. Parker is a registered psychotherapist. She does not have a doctoral degree but took some courses towards achieving that. She has a B.A. degree in sociology and political science, and a M.Ed degree in applied psychology, and her relevant work experience goes back as far as 1969. Since 1999, she has worked with The Willow Centre in North York, Ontario, assessing and treating infants, children, adolescents, and adults.

[220] Ms. Parker described her area of expertise as working with families and children who are going through traumatic or difficult times.

[221] Once or twice, before this trial, Ms. Parker testified in the Ontario Superior Court of Justice on issues involving infants (defined as being between 0 and 5 years of age) and their separation from their primary caregiver.

[222] Ms. Parker admitted in cross-examination that she recently was the subject of a professional disciplinary complaint which went to a hearing. There were findings made against her. She was ordered to pay $6500.00 in costs. Ms. Parker stated that the findings made against her were “administrative in nature”.

[223] Ms. Parker met in-person with F. on September 15, 2020, and she spoke with F. on the telephone on September 18th, and she observed the mother with the children at their Milton residence on September 20th, and she received and reviewed documentation supplied to her by F., including Court filings on behalf of N.

[224] F. was administered the MMPI – Minnesota Multiphasic Personality Inventory – which consists of more than 500 true/false questions that are computer-scored. Ms. Parker testified in direct examination that the results showed nothing unusual or abnormal, and no personality disorder. In cross-examination, she acknowledged that the results of the Inventory included that F. presented as “fake-good”, meaning that she tends to exaggerate the good and understate the bad.

[225] F. completed questionnaires about the children. According to Ms. Parker, both Z. and E. are “fine developmentally”, but Z. has signs of depression and anxiety. On the trauma scales, Z.’s results were highly elevated.

[226] Why Z. is stressed and anxious is unknown, Ms. Parker stated. When she became stressed and anxious is also unknown, though Ms. Parker is of the view that it did not start that day or that week in September 2020.

[227] During the home visit, Ms. Parker saw that F. was “very good” interacting with the two children. F. managed the two children “very well”. Ms. Parker was concerned, though, that Z. had a “freeze response” when Ms. Parker spoke to the girl about all the changes in her life, including the move from Dubai to Canada.

[228] In direct examination, Ms. Parker testified that the research indicates potential negative consequences for infants, generally, when they are separated from their primary caregiver: cognitive impairment (such as reading difficulties), negativity, aggressive behaviours, symptoms of borderline personality disorder, and difficulties managing stress, included.

[229] Brain development in an infant is impacted where there is a loss of consistency that the primary caregiver provides, stated Ms. Parker in direct examination.

[230] “They would definitely be at risk” of emotional harm if separated from F., said Ms. Parker in direct examination, about Z. and E. specifically. That opinion she placed at a “very high degree of certainty”.

[231] A set of hypothetical facts was put to Ms. Parker in direct examination. The said document, exhibit F, is set out below, numbers 1 through 40.

1. The mother is a thirty year old woman

2. born in Pakistan and who moved to Canada at age 15 where she lived for the next six years with her mother, father and two sisters surrounded by a group of relatives in Milton Ontario

3. in the year 2012, at 21 she met and married a Pakistani man then living in Dubai age 30; he is now 39 years old.

4. Both are well-educated

5. She moved to Dubai and in November 2016 she had her first child, a girl;

6. I will call this child #1

7. the mother breast-fed the child on demand for two years and carried out all or substantially all of the parenting of the child over the years 2017, 2018, 2019, 2020 (4 years); all or substantially all physical care, all or substantially all emotional care, all or substantially all developmental care was carried out by the mother,

8. the mother had the assistance of a maid who took on some of the caregiving tasks such as feeding child #1, babysitting, and accompanying the mother on shopping tasks and even a vacation;

9. the father was, through that period, a high functioning executive in a bank who travelled extensively, being away for the household on hundreds of days and many overnights during the life of child #1

10. the day to day living of the family can generally be described as follows

11. The child gets up in the morning with the nanny who shared the task of feeding and clothing and changing the baby with the mother;

12. the nanny prepared and sometimes feeds the baby following the precise and detailed instruction and supervision of the mother;

13. the mother was with child #1 all or substantially all of the day, carrying on all or substantially all of the everyday child-rearing activities such as playing with the baby, teaching the baby, feeding the baby, changing the baby;

14. the father’s day to day activity was as follows:

15. the father would get up on or about 7am and get ready for work in his private ensuite bathroom which would take about an hour; on or about 8am he would drink a protein shake prepared by the nanny;

16. the father would play with and interact with child #1 for perhaps 30 minutes every morning;

17. through the day the father would interact with the mother on whatsapp chats wherein the conversation was the type of everyday conversation that might characterize a marriage;

18. the father seldom spoke on whatsapp about his thoughts regarding child #1;

19. the day to day written chronology describes, for instance,

20. the father asking when his swimming lesson is;

21. the father did participate in bedtime routine; when he was not travelling, he would be present for the bedtime routine of child #1;

22. however, child #1 never went to sleep without her mother present, barring maybe one occasion;

23. Child #2, a boy, was born in November 2019 on or about the third birthday of child #1;

24. this child was breastfed on demand by the mother

25. the mother spent every moment of the child’s life with the child except for occasions when the nanny might take child #1 to the downstairs park, or when the mother might go to an appointment or other outside obligation (such as dropping child#1 to nursery);

26. the father’s involvement with child #2 was similar to his interaction with child #1

27. the father loves both children,

28. demonstrates love of both children

29. spends a small amount of time in the morning and in the evening with the children and participates in the bedtime routine when he is available;

30. the father cannot devote all or substantially all of his time to the children;

31. when the father is given custody by court order he will transport the children back to Dubai and the mother will not follow;

32. the father will engage the nanny to take primary care of the children;

33. the father will bring family relatives, his sister for a few months, and then an aging aunt, who the father says ‘raised him’ to take care of the children;

34. the father will continue his employment as a high level executive at a bank;

35. the father will reduce his travel and spend more time at home;

36. his increased time at home will not be the same amount of time as the mother exhibited between 201 2017-2020;

37. the father will continue to run his business by phone and zoom;

38. the MMPI-2 testing (Minnesota Multiphasic Personality Inventory-2) of the mother results in the normal range and there is no evidence to suggest any mental health issues that would impact on her parenting capacity or her ability to make decisions. The MMPI-2 suggests the mother is a sensitive person who does not like confrontation and tries to be above criticism. The mother has a somewhat favourable selfimage in the test scoring.

39. In the Child Behaviour Checklist, Child #1 scores on the emotionally reactive and anxious/depressed scales in the clinical range above the 97th percentile, and her total problems scale score is in the clinical range above the 90th percentile, and stress problems scale score in the borderline clinical range (93rd to 97th percentile).

40. In the Trauma Symptom Checklist for Young Children (TSCYC) clinical scales were elevated for Child#1 in the clinically significant range with all but one being above the 99th percentile.

[232] In response to exhibit F, Ms. Parker stated that Z. and E. would be at risk of emotional and psychological harm if removed from their mother. They would certainly suffer immediately and may possibly suffer mental health issues down the line, she stated.

[233] Ms. Parker was asked in direct examination how certain she was of that opinion. She replied, “I’m very certain”.

[234] In cross-examination, Ms. Parker was taken to the transcript of her evidence on the earlier voir dire, pages 78-79, where she stated that she could not provide any opinion for these children to any degree of certainty. Reference should be had to the trial transcript, November 20, 2020, from line 12 on page 106 to line 23 on page 110, which is set out below.

Q. All right. In your -- your evidence when my friend was asking you about your ability to give an opinion and certainty, you seemed quite comfortable saying that you could give an opinion with certainty today?

A. That’s correct.

Q. All right. Did you conduct any -- any interviews with Z. last night?

A. With Z. last night?

Q. Right.

A. No.

Q. Did you have any further discussions with the mother last night?

A. No, I did not.

Q. And did you talk to N last night?

A. No, I did not.

Q. Did you review any new research last night?

A. No, I did not.

Q. So I’m going to suggest to you that while you feel that you can give helpful evidence to the effects of -- to this Court on the effects of separation on young children from primary caregivers, that you agree that no one can forget with what’s going on -- that what’s going to happen with any individual without, you know, a great deal of a detailed assessment, and one can certainly offer the Court with an opinion about the probabilities of children being affected by a separation, right?

A. That’s correct.

Q. But you cannot predict with any certainty, agreed?

A. I cannot predict exactly what will happen, no.

Q. Well we talked about this yesterday during a voir dire, and I’m going to read something to you and I’d like you to listen...

A. Yes.

Q. ...okay?

A. Um-hmm.

MR. SMITH: Your Honour, you’ll find this at page 78 of the transcript when it’s ultimately provided to you.

THE COURT: Well I -- I remember it. I wrote it down.

MR. SMITH: ...

“ANSWER: I don’t agree that I can help -- I don’t agree that I can’t help this Court because I think that what I can offer to the Court is information about an extensive body of research that focuses not just on attachment but on the effects of separation on young children from primary caregivers. No one can predict what’s going to happen with any individual without, you know, a great deal of -- and a -- you know, a detailed assessment. But one -- one can certainly offer to the Court an opinion about the probabilities of the children being affected by a separation, for example.”

MR. SMITH: Q. Were you asked those quest -- did you give that answer under oath?

A. I did.

Q. And it was true?

A. And it was true, yes.

Q. Thank you. We’d also had some discussions about your discussions with Mr. -- or without her, Dr. -- Dr. Z. [sic], Saini, my apologies, right, and you recall that?

A. Yes, I did.

Q. And you’ll agree with me that both of you were of the opinion that you couldn’t give an opinion to this Court on attachment?

A. That’s correct.

Q. Well you couldn’t give any opinion on attachment with any degree of certainty?

A. Correct.

Q. Now in dealing with the separation of young children....

THE COURT: Just one moment please. Just one moment please, Mr. Smith.

...MS. YEHIA SPEAKS TO MICROPHONE ISSUES

THE COURT: Ms. Parker, I want to ask that you be placed in the waiting room just for a moment please?

THE WITNESS: A. Certainly.

THE COURT: Thank you.

...WITNESS EXITS

...THE COURT SPEAKS TO THE QUESTION POSED TO MS. PARKER FROM THE TRANSCRIPT

MR. SMITH: Q. This is stemming from a converse....

MR. SMITH: Oh, sorry, we’re not on the record, I understand.

THE COURT: No. No, we’ll have Ms. Parker come back please?

...WITNESS ENTERS

THE COURT: Go ahead, Mr. Smith.

MR. SMITH: Q. All right, so you -- you also discussed with us during the voir dire the ability to predict these probabilities, do you recall that?

A. I do.

Q. All right, so I’m going to read this to you. Right after the part I just read to you, I said to you...

“QUESTION: Quite right. And the probabilities which you agreed with Dr. Saini are, is that you cannot provide the Court with any -- with anything with any certainty, agreed?

ANSWER: Yes, I do agree on that.

QUESTION: Thank you.

ANSWER: In the sense of this individual I do agree.

QUESTION: All right. For these individual children, you cannot provide the Court with that opinion?

ANSWER: That’s correct.”

MR. SMITH: Q. That’s what you told the Court under oath yesterday?

A. Correct.

MR. SMITH: Your Honour, you’ll find that reference at the bottom of page 78 and going up onto the top of page 79 of the transcript.

[235] In cross-examination, Ms. Parker stated that it would be “disturbing” if F. said to Z. that the police were going to take her away if they go back to Dubai.

[236] In cross-examination, Ms. Parker stated that it would help the separation of Z. and E. from their mother if certain “protective” factors were present, like returning the children home, and to where their father lives, and to a known school, and to a known nanny.

[237] When asked in cross-examination if she would be concerned about the mother’s intentions if the mother said that she will not go back with the children, Ms. Parker answered in the affirmative - she would be concerned.

[238] In cross-examination, Ms. Parker agreed that it would be helpful and ease the stress on the children if their father planned to spend more time with them at home, upon their return to Dubai.

[239] In cross-examination, Mr. Smith read the following from a professional resource - that the quality of care and responsiveness of the new (alternate) caregiver will impact how the child responds to the separation from the primary caregiver; Ms. Parker agreed with that statement.

[240] Ms. Parker agreed in cross-examination that the culture of the family in question affects the potential harm of separating a child from the primary caregiver.

[241] In cross-examination, Ms. Parker stated that there are two types of harm from the separation – one is short-term (crying, loneliness) and is usually resolved within months, and the other is longer-term. Both types of harm can be ameliorated and treated through counselling and professional help, and through continued contact with the mother (whether in-person and/or online).

[242] Near the end of her cross-examination, Ms. Parker acknowledged that all of her separation concerns “fade away” if the mother goes back to Dubai with Z. and E.

Part Two: Credibility Assessment and Findings of Fact

How to Assess Credibility

[243] In terms of the framework for determining credibility, I agree with the following as stated at paragraphs 16-18 of the “Applicant’s Written Closing Submissions – Family Law”, dated November 23, 2020.

16. As stated by Justice David Jarvis, an important question to ask in this case is:

Which party’s evidence is to be preferred on a balance of probabilities, in whole or in part, and accorded the appropriate weight? This inquiry involves a consideration of inconsistencies in the parties’ pleadings, their evidence at questioning and trial, their trial demeanour when testifying in-chief and during cross-examination, the consistency of their evidence with other trial evidence and, viewed overall, whether their evidence impresses the court as credible.

Virc v Blair, 2016 ONSC 49, paras. 40, 41

17. This statement follows Justice Jarvis’ review of the authorities on tools to assess credibility:

[40] In Christakos v. De Caires, Nicholson J. adopted MacDonald J.’s following outline in Re Novak Estate:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H.).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). (citations omitted)

Virc v Blair, 2016 ONSC 49, para. 40

18 The credibility analysis in this case is of utmost importance. The law with respect to the importance of credibility in removal and retention cases was recently summarized by Justice Paulseth in Al-Hadad v. Al Harash. The case dealt with the Hague Convention test of grave risk of intolerable harm, but the comments therein regarding credibility are equally applicable to the CLRA serious harm analysis and the analysis and considerations of credibility that this Court must undertake:

[15] The credibility of the party seeking the Article 13 (b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547, affirmed at Husid v. Daviau, 2012 ONCA 469.

[16] Many Article 13(b) claims that allege grave risk of harm to a child because of domestic violence directed towards his primary caregiver have failed in Canadian courts. The following is a brief summary of the reasons for refusing the claim:

• Sometimes the court is simply not satisfied on the balance of probabilities that domestic violence occurred. See, for example, Ellis v. Wentzell-Ellis, here the abducting mother complained of verbally abusive and drunken behaviour, but not physical assaults or threats. See also Mollerv. Despoja-Moller; Sierra v. Sierra.

• Sometimes the court finds that the assault alleged was minor or a one-time occurrence. See Finiziov. Scoppio-Finizio, where the court noted that there was only one “physical altercation” (a punch) in an 8-yearmarriage. Also see Suarez v. Carranza, where a push on two occasions was the violence alleged.

• Sometimes the court notes that, despite the violence alleged, the victim of the assault expressed no fear of the assailant (Suarez v. Carranza), or that the violence alleged is not the reason that the abducting parent declines to return with the child to the requesting state. In Cannock v. Fleguel, the court found that the mother did not want to return to Australia because of the hardship that it would work upon other children in her custody. (citations omitted)

Al-Hadad v. Al Harash, 2020 ONCJ 269, at paras. 15-16

[244] Further, I agree with the following as stated at paragraphs 237-238 of the “Closing Submissions of the Respondent – F.”, dated November 23, 2020.

237. When considering credibility determinations, the factors considered by Justice Forgeron in Baker-Warren v. Denault, 2009 CarswellNS 402 (N.S. S.C.) are of assistance. However, as the Courts have stated, credibility assessment is not a science. With these caveats in mind, the following factors should be balanced when assessing credibility:

What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness; testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);

a) Did the witness have an interest in the outcome or was he/she personally connected to either party;

b) Did the witness have a motive to deceive;

c) Did the witness have the ability to observe the factual matters about which he/she testified;

d) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

e) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney [1952] 2 D.L.R. 3564;

f) Was there an internal consistency and logical flow to the evidence;

g) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased;

h) What cultural factors need to be considered in the manner in which the evidence is provided; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

238. Justice Warner in Re: Novak Estate, at paragraph 37 states:

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 at para. 93 and R. v J.H., 2005 253 (ON CA), [2005] O.J. No. 39).

[245] Finally, in the fairly recent criminal decision of the Court of Appeal for Ontario in R. v. W.D., 2019 ONCA 120, the Court, with reference to Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell 2015), stated the following about assessing the credibility of witnesses, at paragraphs 10 through 13, which I find to be helpful.

[10] Despite these issues concerning the complainant's credibility, the trial judge did not give the standard general instructions set out in specimen jury charges about assessing credibility. The instructions would have focused the jury’s attention on potential credibility issues – such as prior inconsistent statements or false statements made under oath.

[11] The only general instruction the trial judge gave about assessing credibility was to tell the jury to use their common sense:

Now when you go to your jury room to consider the case use the same common sense that you use in everyday life in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little you believe of the witness’ testimony or how much to rely on it in deciding this case, use your common sense. [Emphasis added.]

[12] This instruction essentially mirrors one paragraph of the “assessment of evidence” instruction set out in David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 267. It did not include any of the further instructions generally given that are designed to focus the jury’s attention on particular problems with the evidence in the case. For example, the following questions set out in the “assessment of evidence” instruction in Watt’s Manual, at pp. 267-68, would have been particularly relevant in this case:

Did the witness seem honest? Is there any reason why the witness would not be telling the truth?...

Did the witness’s testimony seem reasonable and consistent as s/he gave it? … Did the witness say or do something different on an earlier occasion?

Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? A deliberate lie is always serious and may taint all the witness’ evidence. Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?

[13] The trial judge gave no general instructions addressing the significance of a false statement made under oath or prior inconsistent statements. She mentioned the complainant’s evidence acknowledging that the complainant had sworn an affidavit containing a false statement only when setting out the appellant’s theory of the case:

Further, [the appellant] reminds you that [the complainant], on a previous occasion, swore a false affidavit in regards to a Family Law Act matter and should be treated as an incredible witness.

Credibility of the Lay Witnesses, Besides the Parties

[246] Dealing first with the non-expert witnesses, apart from the parties, I found Nageen, Mary, Afrah, and M.G. to all have been credible and reliable witnesses.

[247] Of course, none is totally independent, but that is not unusual. Nageen is probably the most neutral of those four witnesses, followed by Afrah and Mary, and then lastly M.G. (who is, after all, F.’s mother and who has a vital interest in keeping F. and her grandchildren here in Ontario).

[248] Not one of these four witnesses (Nageen, Mary, Afrah, and M.G.) was impeached at trial by way of (i) a prior inconsistent statement made before testifying at trial or (ii) internally inconsistent evidence given at trial, whether between direct and cross-examination or even during the course of one of those phases of testimony.

[249] Not one of these four witnesses said something at trial that I found to be lacking in basic common sense or incapable of belief based on other evidence at trial that I do accept.

[250] Not one of these four witnesses, although each of course called by one side or the other, went out of her way to criticize the opposing party.

[251] Not one of these four witnesses was non-responsive to questions being asked of her by either side, or verbose in her answers, or hostile or combative in her presentation at trial.

[252] Not one of these four witnesses demonstrated a poor memory of the subject matter of her evidence, or appeared to be guessing or speculating in her evidence.

[253] Finally, quite important because this sets these four witnesses completely apart from one of the parties in this case, not any of these four witnesses was unable at trial to admit a simple mistake. That is, in my view, a significant hallmark of a truthful and credible witness. “I was wrong”; that goes a long way with a trial judge.

[254] For example, in cross-examination, Nageen had no hesitation admitting to Ms. Yehia that she was wrong, that she made a simple mistake, when she said that F. did not invite her to F.’s baby shower for Z. She quickly corrected her answer to make clear that F. did, in fact, invite her, but she did not attend (page 31 of the trial transcript, November 13, 2020).

Credibility of the Parties

[255] In terms of the parties in this case, as can be expected, neither was a perfect witness. But one was significantly more credible than the other.

[256] F. was not a credible witness. It will come as no surprise to these experienced counsel on both sides that trial judges often make notes to themselves as the trial progresses. Questions, for example, to consider afterwards. “Was that inconsistent with what he said in direct”, for example. Or “is that different than what she wrote in the email”, as another example.

[257] With N., my notes reveal a few areas of concern. With F., my notes are replete with question marks. Let us begin with F.

[258] In my assessment, an important problem with F.’s evidence is in her treatment of Mary. I find it incomprehensible. For some reason, F. was unable to bring herself at trial to admit the obvious – that Mary helped a lot with the children. Was she the primary caregiver? No, that was F. But Mary helped a lot.

[259] There is a direct contradiction between F.’s evidence pre-trial and her testimony at trial, on the question of whether Mary helped a lot with the children. Pre-trial, at questioning, F. said that Mary did, while at trial that became “not true”.

[260] A clear contradiction, under oath or affirmation, on a material point will usually impair a witness’ credibility. It does so here.

[261] F. describes Mary as an extra set of hands, a “maid”. I ask, rhetorically, what maid feeds, changes, holds, nurtures, and cares for the children, whether for limited time periods or not, as F. acknowledged in cross-examination Mary did? None is the answer, in my view. We might describe Mary as a housekeeper and a nanny, or a maid and a nanny, or a house servant and a nanny, or something similar, but not a “maid”.

[262] I accept the evidence of Mary as to what she did for these children, and I have reviewed the WhatsApp messages between F. and Mary in the many months leading up to F.’s departure from Dubai with the children in June 2020, and I am unable to accept F.’s portrayal of Mary as being a maid who occasionally did a thing here or there for the kids. I find that denigrating to Mary and an attempt by F. to influence the result in this case, all for nothing, because this Court has no hesitation in finding that F. has always been the number one caregiver for Z. and E.

[263] Besides issues involving Mary, there are the following concerns that this Court has about F.’s evidence.

[264] In cross-examination, Mr. Smith asked F. a very simple question about paragraph 144 of her affidavit (exhibit 4). That paragraph is set out below.

144. I believe that Ontario is the appropriate jurisdiction where I would have access to justice, procedural fairness and a process that considers the best interest of the children when determining the issues of custody and access as well as all other issues arising from the breakdown in our marriage.

[265] Mr. Smith wanted confirmation that the phrase “all other issues arising from the breakdown in our marriage” included financial issues. F. never directly answered the question.

[266] The answer is, of course, “yes”, with whatever else F. wanted to say and explain and elaborate upon, which was her absolute right to do so. But the point is that there is no way to avoid an admission that the said phrase must include financial matters.

[267] The transcript takes up pages of back and forth, and no direct answer is ever given by F. The following is the entire exchange, from line 32 on page 68 to line 10 on page 71.

Q. I’d like you to go to paragraph 144 of this same affidavit on page 27 of the record. Can you read that to yourself?

A. Sorry, where -- which one do you want me to read?

Q. 1-4-4.

A. Yes.

Q. You say in this paragraph that you “thought Ontario’s the appropriate jurisdiction to have access to justice”, right, that’s your first statement?

A. Um-hmm. Yes.

Q. “Procedural fairness...

A. Yes.

Q. ...and a process that considers the best interests of the children”?

A. Yes, that’s correct.

Q. Then you go on to say: “When determining issues of custody and access...”, right, you say that”?

A. Yes,

Q. “...and also, as well as all other issues arising from the breakdown in our marriage”?

A. Yes.

Q. Okay. And those “other issues” include the financial issues?

A. I don’t know, they’re all -- there are -- a lot more I think ties down to just marriage, like divorce, for example.

Q. Do you expect this Court to think that you’re naïve and that you did not know when you swore an affidavit what the “other issues arising from the breakdown of your marriage” were? Do you want the Court to believe you’re that naïve that you don’t -- that you don’t understand it’s money?

...OBJECTION BY MS. YEHIA

THE WITNESS: A. It’s not -- it’s not my [indiscernible]....

THE COURT: Just – F., just one moment please. Just one moment please, ma’am.

...SUBMISSIONS BY MR. CONWAY

...SUBMISSIONS BY MR. SMITH

...RULING BY HIS HONOUR

MR. SMITH: Q. Do you expect this Court to think that you’re naïve?

A. No, I don’t.

Q. Do you expect this Court to think that you were not asking for it to deal with financial issue -- your financial issues?

A. My main purpose of having....

Q. Excuse me, I didn’t ask you what your main purpose was. I asked you if you expect this Court to believe that you did not intend that your financial issues were going to be dealt with?

A. My -- this was a part of my answer, and...

Q. But....

A. ...well if you allow me to finish.

Q. Go ahead without....

THE COURT: Go ahead, F., yes.

THE WITNESS: A. My main purpose for Ontario is to consider custody and access matters for the children and did not include financial matters. My main purpose of coming here was coming home and not because of financial gain. I don’t -- I still don’t understand actually how I -- what you’re trying to imply?

THE COURT: Okay, well you don’t need to worry about what Mr. Smith is trying to imply. He’s -- he’s asking you questions and he’s entitled to ask you the questions, so I would appreciate that you just keep responding to the best of your ability, okay, ma’am? So...

THE WITNESS: A. Okay.

THE COURT: ...you -- you can follow-up, Mr. Smith, go ahead.

[268] Next, there is the absurd statement in F.’s Answer dated September 21, 2020 that she was “resident in Milton since 2005”. No matter how Mr. Smith tried, whether through showing the inconsistency with the prior out-of-court questioning of F. and her comment about “vacationing” outside of Dubai since 2012, or through the use of her tax returns, F. continued to insist that the said statement in her pleading was correct.

[269] The said statement is incorrect, period. It is a mistake, or it is false, or it was a deliberate lie. One of those things. Plainly and unequivocally, F. was not residing in Milton between 2005 and when she filed her Answer. She was living in Dubai up until mid-June 2020.

[270] Next, there are paragraphs 14 and 15 of F.’s affidavit (exhibit 4), set out below, juxtaposed against her evidence that she took the children to the beach one day, after the June 7, 2020 argument.

14.Contrary to the assertions of the Applicant, my intention to separate was made very clear on June 7, 2020 (not June 6, 2020 as the Applicant suggests). The argument on that day was one of many and the Applicant’s hostility toward me was particularly frightening.

15.The Applicant also made it very clear that to me that I was not permitted to leave the compound. The children were not to leave either. He restricted my mobility and made the already difficult circumstances of living under government regulations stemming from COVID-19, unbearable. The Applicant controlled my actions including remaining in the same bedroom with the Applicant.

[271] Clearly, paragraph 15 of the said affidavit is not quite accurate. She simply forgot about the beach day. No big deal. But instead of saying so in cross-examination, F. insisted that there is no exaggeration or mistruth in that paragraph of her affidavit. There clearly is.

[272] Next, F.’s evidence at trial about physical aggression on the part of N. was inconsistent. In direct examination, in answer to a general question about N’s temper, she stated that he raised his hand to her a couple of times, three times exactly, before Z. was born. Nothing was mentioned about any pushing (trial transcript, November 16, 2020, at page 3). In cross-examination, that became three times with the raised hand, plus multiple occasions of him pushing her (trial transcript, November 16, 2020, pages 194-197).

[273] That is an inconsistency by material omission (rather than a direct contradiction), and I place little weight on it, but it is an inconsistency nonetheless.

[274] F.’s evidence at trial was also clearly inconsistent with what she told Ms. Parker on the intake form. On the form’s question of whether there had been any incidents of “physical aggression”, which surely would include raising a hand in a threatening way and would also include pushing someone away, F. answered in the negative.

[275] Next, there is the startling evidence given by F. at the very beginning of the resumption of her cross-examination, after it was interrupted by the evidence of Ms. Schildgen. I will say more about Ms. Schildgen below, but one perhaps has to have been there on the video screen to appreciate the full import of the following.

[276] The cross-examination of Ms. Schildgen was truly a pivotal event in the trial. Everyone knew it as it was occurring, including F. For much of the cross-examination, F.’s head bowed down, and she stared downwards, with a depressed look. Ms. Schildgen had just made a series of admissions and statements in cross-examination that nobody on F.’s side of the aisle would reasonably have anticipated, given her report and her direct evidence at trial. So, upon the resumption of the cross-examination of F., Mr. Smith asked her whether, given the evidence of Ms. Schildgen, any of her views had changed about what will happen in Dubai in terms of N.’s proposed settlement agreement, and F. answered in the negative. Nothing had changed.

[277] The question was not whether F. now thought that the children should go back to Dubai, as this Court was not expecting that the mother would suddenly abandon her heartfelt position in the middle of the trial, but it was simply whether Ms. Schildgen’s evidence, the evidence of her own expert, had impacted her thoughts about the law of Dubai and how it would be applied to these children; “[a]nd did those answers at all put you at ease about what will happen in Dubai?”, asked Mr. Smith (trial transcript, November 17, 2020, lines 13-14 on page 67). No, said F, “my opinion stays the same” (line 15).

[278] I do not understand that answer. Her opinion about the law of the United Arab Emirates stays the same? Either F. did not hear the evidence of Ms. Schildgen (which is very unlikely), or she did not fully understand it (which is possible), or she understood it but simply chose to ignore it (which I think is the more likely inference to be drawn).

[279] Remember, the read-ins done by Mr. Lokan at trial demonstrate that F. had admitted during her pretrial questioning that she is not a lawyer and has virtually no knowledge about the laws of the United Arab Emirates aside from her reliance on her expert.

[280] Next, F. has been inconsistent on what she thinks were the subjects of N.’s fascination with pornography. At her pre-trial questioning, she stated that she thought the girls were between 16 and 19 years old. In her affidavit (exhibit 4), she indicated that they were between 14 and 16 years old. Either one is distasteful and likely more than that, but as young as 14 years old is plainly perversion. The two pieces of evidence are materially different.

[281] Next, and finally, F.’s evidence at trial is totally at odds with the draft Final Order that she is asking this Court to make, filed as part of the written closing submissions delivered on her behalf, dated November 23, 2020. At trial, she stated that she supports co-parenting with N. if he comes to Ontario, even joint custody, or at a minimum lots of access between him and the children. In the draft Final Order, however, even if N. moves to Ontario, she has proposed anything but lots of access – alternating weekend access and Wednesday overnights on the weeks that N. does not have the children that weekend (paragraph 14). If he does not move to Ontario, the access that she is prepared to permit is even further restricted, and with many conditions attached thereto – see paragraphs 7-13 of the draft Final Order.

[282] The irony is plain and obvious. F. is concerned about N. possibly abducting the children, removing them from Ontario, and withholding them somewhere else, against her express wishes. She can now, I hope, understand how N. felt after June 19, 2020.

[283] With regard to N., he was cross-examined at length by two experienced and highly competent lawyers, Ms. Yehia and Mr. Conway. Mr. Conway’s cross-examination, in particular, was very aggressive, calling N. a “liar” more than once. Still, there was not a single direct contradiction or inconsistency revealed. Not one instance of clear impeachment.

[284] That is not to say that N. was a perfect witness. He talked a lot. Too much at times. More important, I do not believe his evidence on the issue of the pornography. I find it fanciful.

[285] F. is a smart lady. I think that she knows the difference between Spartacus, or Game of Thrones, and real pornography. I agree with Mr. Conway’s attempt in cross-examination to paint that evidence of N. as being ridiculous, and the attempt was successful.

[286] I also think that N. exaggerated his evidence at trial about F. having tried to force herself on him sexually. As ably pointed out by Mr. Conway in cross-examination, if that was true to the extent described by N. at trial, one would think that he would have mentioned it in his very lengthy and multiple affidavits, which he did not.

[287] Otherwise, N. was a much better overall witness at trial than F. was.

[288] Consequently, generally speaking, except for the issues of pornography and whether F. tried to force herself sexually on N., where the evidence of F. differs on a material point from that of N., such as on the role of Mary with the family in Dubai, or on the question of whether there ever existed an agreement between the parties to move to Canada, as examples, I prefer the evidence of N.

[289] Additionally, in general, where the evidence of F. differs on a material point from that of one of the other lay witnesses at trial, such as with Mary on the role of Mary with the family in Dubai, or with Nageen on their observations of life in Dubai for a Muslim woman and the prevalence (or not) of religious discrimination in Dubai, I prefer the evidence of the other lay witness at trial.

[290] There really were no material differences between the evidence of N. and the evidence of any other lay witness at trial, excepting F.

Findings of Fact Arising from the Evidence of the Lay Witnesses

[291] Having said all of that, in reality, I only have to make the following findings:

(i) F. has always been the primary caregiver for Z. and E.;

(ii) Mary has always helped a lot with the care of Z. and E.;

(iii) comparatively, N. has always been less involved in the care of Z. and E.;

(iv) there was never any agreement or settled intention between the parties to move to Canada;

(v) but for vacations and trips abroad, until June 19, 2020, Z. and E. lived their whole lives in Dubai, and between February 2012 and June 19, 2020, both F. and N. lived in Dubai as a married couple and, later, as a family with their two children; and

(vi) among all of the lay witnesses who testified at trial, including the parties, the one who is the least trustworthy is F. (not as a mother, but certainly as a witness).

Credibility of the Experts, and Related Findings of Fact Arising from the Expert Evidence

[292] I will now move to analyze the expert evidence at trial.

[293] The short conclusion is that:

(i) I accept all of the relevant opinion evidence expressed by Ms. Hamade, who was the best expert witness to testify at trial, and I prefer the evidence of Ms. Hamade where it differs from any part of the evidence of Ms. Schildgen;

(ii) I accept some of the opinion evidence expressed by Ms. Schildgen, who was an excellent witness at trial in terms of upholding her duties to the Court but a devastating witness for the case for the mother; and

(iii) I accept a limited amount of the opinion evidence expressed by Ms. Parker.

[294] On potentially disputed matters, at least disputed before the cross-examination of Ms. Schildgen at trial, I make the following four key findings:

(i) as for whether the best interests of Z. and E. will be the paramount consideration in determining custody in a court in Dubai, the answer is, unreservedly, “yes”;

(ii) as for whether the settlement proposed by N., if agreed to by F., will be able to be incorporated into a valid court order in Dubai, approved by the court in Dubai, and enforceable as a valid court order in Dubai, the answer is, unreservedly, “yes”;

(iii) as for whether infants, generally, face potential adverse impacts, emotional and psychological, upon separation from their primary caregiver, the answer is, undoubtedly, “yes”; and

(iv) as for whether that would occur here, with Z. and E., if separated from F., the answer is unknown.

[295] Having conducted hundreds of hearings over the last nine years, many of them with expert evidence, I must say that I was very impressed with the evidence of Ms. Hamade.

[296] She was precise in her evidence. She did not waver in her evidence. She was not impeached in cross-examination, except in one instance where Mr. Conway put to her an opinion that she rendered in another case; to which she replied, satisfactorily in my view, that there were significant factual differences between that case and ours. She delivered her evidence in a straightforward, unbiased, sharp, and articulate manner.

[297] Further, Ms. Hamade is very experienced in family law (more so than Ms. Schildgen), and very experienced in the courts in the United Arab Emirates (Ms. Schildgen is not), and fluent in the Arabic language in which the original relevant legislation was written (Ms. Schildgen is not), and intimately familiar with all aspects of N.’s proposed settlement agreement (dated October 30, 2020), including trusts (Ms. Schildgen is not).

[298] Ms. Hamade’s evidence, which I accept, fully supports the first two key findings made above.

[299] Unfortunately for the mother, Ms. Schildgen’s evidence in cross-examination at trial also supports those two key findings.

[300] With respect, the mother’s counsel have not dealt with Ms. Schildgen’s evidence appropriately. Either this Court holds that it supports the first two key findings made above, or this Court ignores it altogether. The second option is the very highest, the very best, outcome for the mother.

[301] It is inconceivable that this Court would find that Ms. Schildgen’s evidence supports a conclusion that (i) best interests of the child does not trump all else in child custody law in Dubai, or that (ii) settlement agreements like the one proposed by N. in this case are not enforceable as valid court orders in Dubai.

[302] For this Court to draw either of those conclusions in favour of the mother, this Court would have to cherry-pick to a degree that is grotesque, and I concur with Mr. Conway that this Court should avoid doing so. I would have to completely ignore the entire cross-examination of Ms. Schildgen at trial, by finding, I suppose, that she must have been confused or misspoke multiple times or something, and then I would have to accept just the direct evidence of Ms. Schildgen, including her report, and then finally I would have to reject entirely the evidence of Ms. Hamade.

[303] I decline to do so. I commend Ms. Schildgen for being honest in cross-examination. I do not think that she was confused at all. I appreciate her upholding her duties as an unbiased, professional expert witness. She was being fair to this Court and non-partisan to make sure that I was not left with the impression that “best interests of the child” is a concept that means virtually nothing in Dubai. In fact, it means everything.

[304] Let me be frank, with respect. The cross-examination of Ms. Schildgen at trial eviscerated the very underpinning of the mother’s case (apart from the Constitutional question), that is that the children cannot be returned to Dubai because this Court can have no confidence that any decision made there regarding their welfare will be based, as the paramount consideration, on their best interests. Ms. Schildgen’s evidence in cross-examination points precisely to the opposite conclusion.

[305] Finally, moving to Ms. Parker, I find that her evidence is of limited assistance to this Court. Without hesitation, I accept her evidence that infants can face serious negative effects from being removed from their primary caregiver, but I knew that before Ms. Parker testified. No trial judge needs expert evidence for that.

[306] I did need expert evidence on other things, however, and Ms. Parker helped me greatly with those areas.

[307] In direct examination, Ms. Parker testified that the research indicates potential negative consequences for infants, generally, when they are separated from their primary caregiver: cognitive impairment (such as reading difficulties), negativity, aggressive behaviours, symptoms of borderline personality disorder, and difficulties managing stress, included. I accept that evidence.

[308] Brain development in an infant is impacted where there is a loss of consistency that the primary caregiver provides, stated Ms. Parker in direct examination. I accept that evidence.

[309] In cross-examination, Mr. Smith read from a professional resource that the quality of care and responsiveness of the new (alternate) caregiver will impact how the child responds to the separation from the primary caregiver; and Ms. Parker agreed with that statement. I accept that evidence.

[310] Ms. Parker agreed in cross-examination that the culture of the family in question affects the potential harm of separating a child from the primary caregiver. I accept that evidence.

[311] In cross-examination, Ms. Parker stated that there are two types of harm from the separation – one is short-term (crying, loneliness) and is usually resolved within months, and the other is longer-term. Both types of harm can be ameliorated and treated through counselling and professional help, and through continued contact with the mother (whether in-person and/or online). I accept that evidence.

[312] Otherwise, I do not accept any of Ms. Parker’s evidence, whether given in direct examination or in cross-examination at trial, as to what will likely happen with these two children, Z. and E., if they are separated from F.

[313] In my view, Ms. Parker’s evidence on the voir dire about not being able to express an opinion about these children with any degree of certainty was not limited to an opinion about attachment; it was in reference to any opinion at all. I have read the transcript in question many times; there is no other reasonable interpretation of the words used.

[314] My mid-trial ruling expressly permitted Ms. Parker to provide evidence about these children specifically. She did nothing wrong at trial in doing so. But the fact that she then said that her opinions about these children are almost guarantees (my word; she said “very high degree of certainty” and “very certain”) gives me great discomfort. It is totally at odds with what she said during the voir dire.

[315] Thus, I cannot rely upon Ms. Parker’s opinion evidence when it comes to Z. and E. specifically, and hence, the fourth key finding made above.

[316] Her evidence does, however, support the third key finding made above in these Reasons.

Part Three: The Law

[317] All counsel have been extremely helpful to this Court regarding the law. I cannot possibly set out here every passage of every case referred to, however, as this Judgment is going to be very lengthy as it is. I will focus below on what I perceive to be the most critical references.

[318] Set out below are the following sections of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended: 19(a) through (d), 22(1) through (3), and 23(a) and (b).

19 The purposes of this Part 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. R.S.O. 1990, c. C.12, s. 19.

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. R.S.O. 1990, c. C.12, s. 22 (1).

Habitual residence

(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. R.S.O. 1990, c. C.12, s. 22 (2); 2016, c. 23, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

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. R.S.O. 1990, c. C.12, s. 23.

[319] In Wang v. Lin, 2013 ONCA 33, the Court of Appeal for Ontario reviewed the lower Court’s order that two children (9 and 10 years old) be returned to China, where the father was, from Toronto (where the mother and the children then were).

[320] China, although a Member, has never had entered into force the Hague Convention.

[321] The Court outlined the facts, the legal framework, the decision below, and the positions of the parties, and then, most relevant to our case, stated the following at paragraphs 38-53.

[38] Before considering the jurisdiction issues, I will dispose of the issue of the use of the viva voce evidence. In my view, the motion judge did not err by respecting the agreement of the parties that the viva voce evidence on the second motion would not be considered on the first, stay motion. Moreover, I am not persuaded that the outcome of the stay motion would have been different, had he considered the viva voce evidence. Most of the evidence regarding the mother’s intention to return to Canada was in affidavits that were before the motion judge on the stay motion. As will become apparent, the process agreed to by the parties, and applied by the motion judge, does not actually result in inconsistent decisions on jurisdiction.

[39] As to the jurisdiction issues, in my view the motion judge correctly concluded that the courts of Ontario do not have jurisdiction under the Divorce Act or the FLA. However, he did, in my view, err in concluding that the court had jurisdiction to make an order for custody of or access to the children, other than to the limited extent permitted by s. 40(b)(1) of the CLRA.

[40] I first address the motion judge’s finding that the mother was not ordinarily resident in Ontario for at least one year immediately preceding the commencement of the proceeding such that the courts of Ontario do not have jurisdiction to hear and determine the divorce proceeding under the Divorce Act.

[41] In MacPherson, this court found that the wife was not ordinarily resident in Ontario for the requisite one year period before filing for divorce in Ontario. The family lived in Ontario for four and a half years before moving to Nova Scotia. After eight months, the wife returned to Ontario; the husband stayed in Nova Scotia. She filed her application in Ontario about two and a half months later. At p. 239, Evans J.A. wrote:

In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community. In the present matter, while the husband and wife expressed opposing views as to their intention with respect to the establishment of a permanent residence in Nova Scotia, I do not believe that the intention alone can determine the issue of ordinary residence. Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact she was ordinarily resident in Nova Scotia for that period which continued until she moved and established her residence in Ontario.

[42] In my view, the motion judge did not err in the manner in which he approached the question of whether the mother was ordinarily resident in Ontario in the year immediately before filing her divorce application. His approach was consistent with MacPherson, which makes clear that intention alone cannot determine ordinary residence. Nor did the motion judge make any palpable and overriding factual errors.

[43] The wife and children returned to China once they obtained Canadian citizenship, taking up residency in a home owned by the family. They carried on their customary mode of life in China: the children went to school and engaged in extra-curricular activities, and the mother and children regularly visited family. The family was able to live together, which, given the father’s business interests in China, they had been unable to do while the mother and children obtained Canadian citizenship. The fact that the mother and children entered China on visitors’ visas is not determinative. As the motion judge observed, given that the father is a Chinese citizen, and, I would add, given the father’s very significant financial resources, it is hard to imagine that their re-entry to China would face any serious impediment. The father, on the other hand, has no immigration status in Ontario.

[44] The fact that the parties maintained a home in Toronto while living in China is also not sufficient to make the mother ordinarily resident in Ontario while she was living and carrying on her customary mode of life in China. The value of the parties’ assets in Ontario pales in comparison to their assets in China. China was not a special, occasional or casual residence. I agree that the mother was not ordinarily resident in Ontario in the year immediately preceding the filing of her divorce application. In my view, her real home during that period was in China.

[45] Since the motion judge proceeded to consider the issue of jurisdiction under the FLA without turning to the jurisdictional test for corollary relief under the Divorce Act, I will do the same without comment on the correctness of this approach. Had he considered the question as to whether the mother was ordinarily resident at the time of the application for the purposes of claiming corollary relief under the Divorce Act, the answer on these facts would have been that she was not. She had been living in China immediately prior to bringing the application.

[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.

[48] The final jurisdictional question is whether the court had jurisdiction to make an order under s. 22 of the CLRA. My answer is “no”.

[49] The court does not have jurisdiction under s. 22(1)(a), because the children were not habitually resident in Ontario at the time that the mother commenced her application. “Habitually resident” is defined in s. 22(2), reproduced above. Based on that definition, the children were habitually resident in China, which is the place that they last resided with both parents prior to the filing of the application.

[50] The court also does not have jurisdiction under s. 22(1)(b). Pursuant to that section, although a child is not habitually resident in Ontario, the court can exercise jurisdiction if all of the conditions set out in ss. 22(1)(b)(i)-(vi) are fulfilled. Section 22(1)(b)(i) requires that the children have been physically present in Ontario when the application was commenced. In this case, they were attending school in Beijing. It is not necessary to go any further.

[51] As the father submits, if the statutory test for jurisdiction in s. 22 is not made out, the court cannot resort to a common-law test to ground jurisdiction: see Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal to S.C.C. refused, 34945 (November 22, 2012).

[52] The remaining issue is whether this court should, as the father requests, order the return of the children to China.

[53] Under s. 40 of the CLRA, the court has several options when it is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario, or alternatively that it may not exercise jurisdiction under s. 22. These options include making “such interim order in respect of the custody or access as the court considers is in the best interests of the child.” The children are currently mid-school year in Toronto, with their mother, who has been their primary caregiver. Given the motion judge’s conclusion that the court had jurisdiction, he did not consider whether the court should make an interim order with respect to custody or access pending the children’s return to China, or order the immediate return of the children to China. In my view, this matter should be returned to the motion judge, or another judge of the Superior Court in Toronto, to determine what order should issue pursuant to s. 40 of the CLRA.

[322] Ojeikere v. Ojeikere, 2018 ONCA 372, is a seminal decision in this area. In that case, the Court of Appeal for Ontario concluded that the children would suffer serious harm if required to return to Nigeria, and thus, Ontario should exercise jurisdiction over the custody determination. There were three children, ages 15, 14, and 12, all Canadian citizens. The mother was in Mississauga with the children. The father was in Nigeria, where the family had lived previously.

[323] Nigeria, like the United Arab Emirates, is not a signatory to the Hague Convention.

[324] The Court outlined the issues as follows, at paragraph 10 of the decision.

[10] This case is not governed by the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, 19 I.L.M. 1501 (entered into force December 1, 1983), commonly known as The Hague Convention, because Nigeria is not a signatory to the Convention. Thus, the issues on this appeal must be decided under the provisions of Ontario’s Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). This appeal raises two issues under that statute:

1. Did the motion judge err in ruling that under s. 22 of the CLRA an Ontario court does not have jurisdiction?

2. Despite s. 22 of the CLRA, should an Ontario court exercise jurisdiction under s. 23 of the CLRA because the three children are physically present in Ontario and would suffer serious harm if returned to Nigeria?

[325] The Court answered the issues as follows, at paragraph 11.

I would answer “no” to the question raised by the first issue. The motion judge did not err. The second issue was not raised before the motion judge and turns almost entirely on the fresh evidence filed by the OCL on this appeal. Having considered this evidence, I have concluded that, despite the motion judge’s conclusion on s. 22, an Ontario court should exercise jurisdiction because the children, who are physically present in Ontario, would suffer serious harm if returned to Nigeria. I would therefore allow Mrs. Ojeikere’s appeal, set aside the order of the motion judge, order that the Ontario Superior Court has jurisdiction to determine the custody of and access to the children, and finally order that Mrs. Ojeikere have interim custody of the children with generous access to Mr. Ojeikere pending a further order of the court.

[326] At paragraphs 12-18, the Court analyzed the statutory regime and the bases for Ontario asserting its jurisdiction over the custody matter.

[12] Under the CLRA, an Ontario court can assume jurisdiction to make an order for custody of or access to a child on any one of four bases:

• Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
• Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
• Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
• Under the court’s parens patriae jurisdiction to protect children, preserved by s. 69.

[13] All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III[1]. In substance, there are five purposes:

• To ensure that custody and access applications will be determined on the basis of the best interests of the children;
• To avoid the concurrent exercise of jurisdiction by tribunals in different places;
• To provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
• To discourage the abduction of children as an alternative to the determination of custody rights by due process; and
• To provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.

These general purposes set out in s. 19 must guide the interpretation and application of ss. 22 and 23, the provisions in issue on this appeal.

[14] The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.

[15] Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1)[2] and the catalogue of best interests considerations listed in s. 24 (2)

[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

[17] Sections 23 and 69 also reflect the Legislature’s overriding concern with children’s best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child’s habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.

[18] No party argued that the court should act under s. 69 of the CLRA, and I see no grounds for doing so. The motion judge decided the motion under s. 22 and I see no error in his application of that section. However, s. 23 allows for an Ontario court to assume jurisdiction even if the requirements of s. 22 are not met, and it is under that provision that I have determined the appeal should be allowed.

[327] In the “discussion” section of its decision, all of the following paragraphs are potentially relevant to our case: 19-40, and 51-62, and 89-92.

[19] Section 22 gives an Ontario court two bases to assume jurisdiction and make a custody order: habitual residence of the child in Ontario; or physical presence of the child in Ontario, as long as the other specified requirements of the section are met.

(a) Habitual Residence

[20] Under s. 22(1)(a) of the CLRA “a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order”. The OCL concedes that the Ojeikeres’ three children were habitually resident in Nigeria before Mrs. Ojeikere wrongfully took them to Mississauga in August 2016. The OCL also concedes that Mrs. Ojeikere could not change the children’s place of habitual residence by abducting them. I agree with the OCL’s concessions.

[21] “Habitual residence” is defined in s. 22(2) of the CLRA:

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.

[22] The Ojeikeres’ three children resided with their parents in Nigeria for the five years preceding the court applications. Thus, the children were habitually resident in Nigeria under s. 22(2)(a) of the CLRA.

[23] Subsection 22(3) expressly stipulates that a parent cannot change a child’s habitual residence by abducting the child:

The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[24] On the record before us and the finding of the motion judge, Mr. Ojeikere did not consent to allowing the three children to remain in Ontario or even in Canada after their summer vacation in 2016. Nor did he acquiesce in their staying here; he promptly began custody proceedings in Nigeria following the children’s abduction.

[25] In holding that the children were domiciled in Nigeria, the motion judge said as follows at para. 18 of his decision:

I am satisfied that from 2011 to 2016 the entire family was domiciled in Nigeria. The fact that the children were away from home while attending boarding school does not eliminate the reality that the family resided in Nigeria. The wife cannot unilaterally and without the consent or knowledge of the husband withhold the children in Ontario and then claim that they are now resident there. This conduct does not establish a status quo.

[26] I agree. I assume that in using the word “domiciled” the motion judge meant “habitually resident”. Because the trial judge found that the three Ojeikere children were habitually resident in Nigeria, despite their time in boarding schools and despite their abduction to Ontario, s. 22(1)(a) of the CLRA provides no basis for an Ontario court to assume jurisdiction over the children.

(b) Physical presence and other requirements

[27] Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met:

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

(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. [Emphasis added.]

[28] As this court said in Wang v. Lin, 2013 ONCA 33, 358 DLR (4th) 452, s. 22(1)(b) must be read conjunctively. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met.

[29] When Mrs. Ojeikere brought her application in Ontario in November 2016, the three children were physically present in Ontario, thus satisfying the first criterion under s. 22(1)(b). The fourth criterion is also satisfied as an Ontario court has not recognized any extra-provincial custody order; indeed none has been made.

[30] The OCL put forward evidence to try to satisfy the second, fifth, and sixth criteria: best interests, real and substantial connection, and balance of convenience. Even accepting that the evidence satisfies these three criteria, s. 22(1)(b) affords no basis for an Ontario court to assume jurisdiction because the third criterion cannot be satisfied.

[31] An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere.

[32] Mr. Ojeikere filed a petition for custody of the three children in Abuja, Nigeria three months before Mrs. Ojeikere brought her application in Ontario. At the time Mr. Ojeikere filed his petition, the three children were habitually resident in Abuja. Thus, s. 22(1)(b)(iii) stands as a bar to an Ontario court’s jurisdiction.

[33] To avoid the application of s. 22(1)(b)(iii), the OCL relies on Chaudry v. Kahn, 2016 ONSC 7773, 96 R.F.L. (7th) 418, where Corbett J. exercised his discretion to assume jurisdiction under s. 22(1)(b), even though a proceeding had been started by the father in Bahrain before the mother started a proceeding in Ontario. Justice Corbett held that, as the Bahrain proceeding was started after the mother left the country, and as she had no notice of it, or any opportunity to participate in it, it was not a “pending proceeding” under s. 22(1)(b)(iii).

[34] The facts in Chaudry were unusual and likely drove the result. Without commenting on its correctness, I say simply that the language of s. 22(1)(b)(iii) is clear and unambiguous. At the time of Mrs. Ojeikere’s application in Ontario, a proceeding was pending in Nigeria. And, relying on the affidavit of a Nigerian lawyer, the motion judge found that Mr. Ojeikere’s petition was properly constituted.

[35] Also, the motion judge found that Mrs. Ojeikere was aware of the Nigerian proceedings. She claims otherwise. Even accepting her denial, she can hardly complain about the order for substituted service when she refused to disclose her whereabouts to her husband.

[36] The motion judge correctly applied s. 22 of the CLRA and found that it did not give an Ontario court jurisdiction to decide the custody of or access to the Ojeikeres’ children. I turn now to the issue on which I would allow this appeal: serious harm under s. 23 of CLRA.

(2) Despite s. 22, an Ontario court should exercise jurisdiction under s. 23 of the CLRA

[37] Section 23 provides:

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.

[38] Because the Ojeikeres’ three children are physically present in Ontario, under s. 23(b) an Ontario court can exercise jurisdiction over their custody or access if satisfied that the children would, on a balance of probabilities, suffer “serious harm” if they were sent back to Nigeria.

[39] Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22’s aim of discouraging child abduction becomes secondary to s. 23’s aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: “[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child.”

[40] Section 23 of the CLRA is discretionary. Under s. 25, a court with jurisdiction over custody or access may decline to exercise its jurisdiction where it is of the opinion that another jurisdiction is more appropriate. Although s. 25 could potentially qualify the court’s discretion under s. 23, I find it hard to conceive that an Ontario court would decline jurisdiction under s. 23 if satisfied a child would suffer serious harm if removed from the province.

[51] In this section I will discuss the meaning of “serious harm” and the factors relevant to its application in this case.

[52] As I have said, under s. 23 of CLRA, an Ontario court can exercise jurisdiction over the custody of a child and refuse to order the child’s return to the child’s habitual residence where satisfied that the return would, on a balance of probabilities, cause “serious harm”. Case law on the meaning of “serious harm” relies on a similar, though not identical provision in The Hague Convention. Under art. 13(b) of the Convention, an Ontario court would not be bound to order the return of the child if the person opposing the return establishes that “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.”

[53] Despite the difference in language, in their interpretation, courts appear largely to have equated the standard of “serious harm” in s. 23 of the CLRA with the standard of “grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation” in art. 13(b) of the Convention.

[54] The leading Supreme Court of Canada case on the meaning of “grave risk of harm” and “serious harm”, decided nearly a quarter of a century ago, is still Thomson v. Thomson, 1994 26 (SCC), [1994] 3 S.C.R. 551. Thomson was a Manitoba case decided under the Convention. But La Forest J., who wrote the majority reasons, also considered s. 5 of the Manitoba statute, which, like s. 23 of Ontario CLRA, used the standard of “serious harm” without mentioning an “intolerable situation”. Despite the different language between the two provisions, he held at page 596: “[T]he inconsistencies between the Convention and the Act are not so great as to mandate the application of a significantly different test of harm”.

[55] Justice La Forest then discussed the meaning of “grave risk of harm” under art. 13(b) of the Convention. Relying in part on an English decision, he held that the harm could be physical or psychological, but that the standard is stringent – the harm from the child’s return must be sufficient to amount to “an intolerable situation”:

It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. …

Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

…the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words ‘or otherwise place the child in an intolerable situation’.

I hasten to add, however, that I do not accept Twaddle J.A.'s assessment that the risk contemplated by the Convention must come from a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver. As this Court stated in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. [Emphasis in original.]

[56] Ontario courts typically have used this passage for the meaning of “serious harm” under s. 23 of the CLRA. Undoubtedly, as La Forest J. said, the harm can be physical or psychological or both, and it must be greater than would ordinarily be expected from taking a child from one parent and returning the child to the other parent.

[57] Still, in Thomson, La Forest J. acknowledged that the standard in the Convention and the standard in the legislation (in that case Manitoba’s) are expressed in different terms. He did not discuss the significance of the difference in any detail. Instead, he concluded that “[i]n view of the findings that the facts [in Thomson] did not meet the tests of harm either as expressed in the Convention or the Act, I need not delve into this issue (emphasis added).” The harm alleged in that case was psychological harm upon separation from a parent, and would not have met the requirements of either the statutory or the art. 13(b) standard.

[58] I conclude that the standard of “serious harm” required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.

[59] The main reason for my conclusion is the difference in language. It seems to me the words “intolerable situation” in art. 13(b) of the Convention import a more stringent standard than simply “serious harm” under s. 23 of the CLRA. And the Legislature must be taken to have been aware of the terms of the Convention when it enacted s. 23. The Convention was signed in 1980. Part III of the CLRA, which includes s. 23, was enacted in 1982 (see S.O. 1982, c. 20) and expressly incorporates the Convention into Ontario law in s. 46. Yet the qualifying words, “an intolerable situation”, found in art. 13(b), and on which La Forest J. relied on in Thomson, are absent from s. 23. As a matter of statutory interpretation, the Legislature must be taken to have intended not to use these uncompromising words to qualify “serious harm”: Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 42. See e.g.: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471, at para. 45. Thus statutory interpretation alone argues for a less stringent standard of harm under s. 23.

[60] There is perhaps a second reason why the s. 23 standard should be less stringent. I expect that the standard under the Convention is exacting, at least in part, because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases

[61] Section 23 applies to cases where a country with potential jurisdiction over the custody of a child is not a signatory to the Convention. Their custody laws may differ from ours. In cases decided under s. 23, an Ontario court will not always have the same assurance that a non-signatory country will, as Ontario does, put the best interests of children first. Some non-signatory countries may do so; others may not.

[62] Both art. 13(b) and s. 23 do, however, have one feature in common. Both require the court to assess the risk of harm. The Convention explicitly requires a risk assessment: the court must assess whether returning the child to the child’s place of habitual residence would give rise to a grave risk of harm. Section 23 does not use the word “risk”. But under s. 23, an Ontario court must still assess the possibility or risk of harm if the child is removed from Ontario. Under s. 23, the court is not assessing harm from a past event; it must predict future harm, in other words the risk of harm. As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm, and the severity of future harm.

[89] Mrs. Ojeikere has said that if this appeal is dismissed and the motion judge’s order remains in place, she will not return to Nigeria with the children. She claims that Mr. Ojeikere has made a police complaint about her and, more generally, that “there is nothing for her” in Nigeria. Her claim about a police complaint is unsubstantiated and I would give no effect to it. Mr. Ojeikere apparently did lobby the Nigerian Human Rights Commission to intervene when he did not know where the children were living. He did nothing more.

[90] If, however, Mrs. Ojeikere did carry through with her stated intention not to return to Nigeria because there is nothing there for her, her refusal almost certainly would affect the children, emotionally and psychologically. They would be separated from the parent who has been their primary care giver for most of their lives. Mr. Ojeikere himself acknowledges the children would likely suffer anxiety and guilt from being forced to go to Nigeria while their mother stayed in Ontario. And the children too have expressed genuine concern about not living with their mother.

[91] Mr. Ojeikere argues that by professing to stay in Ontario and separating herself from the children, Mrs. Ojeikere is manipulating them and, by her stance alone, trying to establish serious harm. I have some sympathy for his argument. Ordinarily, a parent in Mrs. Ojeikere’s position ought not to be able to create serious harm and then rely on it through her own refusal to return to the country of the children’s habitual residence – at least without a substantial reason for doing so, such as the risk of imprisonment or persecution, risk to health or physical safety, or the risk of a significant obstacle to employment.

[92] There may be cases where a parent’s refusal to accompany the children back to the country of habitual residence could give rise to a serious risk of harm to the children. This case is not one of them. Mrs. Ojeikere lived in Nigeria for five years before abducting the children. Her vague assertion there is nothing for her in Nigeria does not establish a substantial reason for refusing to return there. I give no weight to this factor.

[328] In Geliedan v. Rawdah, 2020 ONCA 254, a case involving Dubai, the Court of Appeal for Ontario held that the application judge had erred in ordering that the child (six years old, living with her mother in the Toronto area) be returned to Dubai (where the father was, and where he claimed was the child’s habitual residence).

[329] In terms of the legal framework, and the significance of Dubai not being a signatory of the Hague Convention, all of the following paragraphs of the decision are potentially relevant to our case: 21-45.

[21] I begin with this important observation: while Canada is a signatory to the Hague Convention and s. 46 of the CLRA makes its provisions the law of Ontario, the U.A.E. is not a signatory to the Hague Convention.

[22] The father brought the Application pursuant to s. 40 of the CLRA, which reads:

Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. [Emphasis added.]

[23] Where a return application is brought under the Hague Convention, the court first looks to the question of habitual residence under Article 3, which reads:

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, 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, either jointly or alone, or would have been so exercised but for the removal or retention. [Emphasis added.]

[24] Once habitual residence is determined, Article 12 of the Hague Convention requires that the child be returned to the contracting state of the child’s habitual residence unless an exception applies: the authority concerned “shall order the return of the child forthwith”. [Emphasis added.]

[25] In this case, the alleged exception was that the child would experience harm if returned to Dubai. To this end, Article 13 of the Hague Convention reads:

Despite the provisions of the preceding Article [the mandatory return to the child’s habitual residence provision], the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(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. [Emphasis added.]

E. ANALYSIS: THIS WAS NOT A HAGUE CONVENTION CASE

(i) Overview

[26] Although the U.A.E. is not a Hague Convention signatory, and the application judge recognized this fact, she still decided the case using the Hague Convention’s legal framework.

[27] As if Article 3 of the Hague Convention applied, the application judge first asked where the child had been habitually resident just prior to her arrival in Ontario. Having resolved that the answer to that question was Dubai, she then asked whether the child would be subjected to serious harm, which she determined must rise to the level of an “intolerable situation”, were the child to be returned to Dubai. Answering that question in the negative, the application judge proceeded as if, pursuant to Article 12 of the Hague Convention, she was required to return the child to Dubai.

[28] It was an error for the application judge to apply a Hague Convention approach when determining this s. 40 CLRA Application.

(ii) The Differences Between the Hague Convention and Section 40 of the CLRA

[29] The father contends that the application judge was right to apply the Hague Convention framework. He points to various lower court decisions in support of his argument that the principles governing applications under the Hague Convention and s. 40 of the CLRA are entirely interchangeable: See e.g. Bolla v. Swart, 2017 ONSC 1488, at para. 38; Moussa v. Sundhu, 2018 ONCJ 284, 11 R.F.L. (8th) 497, at para. 32.

[30] I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application.

[31] Recall the wording of s. 40 of the CLRA that is relevant to this appeal:

Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; …

may do any one or more of the following…. [Emphasis added.]

The available remedies are: (1) making interim custody or access orders in the best interests of the child; (2) staying the application on conditions, including that a similar proceeding be promptly commenced in another jurisdiction; and (3) ordering the return of the child “to such place as the court considers appropriate”.

[32] Recall, also, that under the Hague Convention, the court must determine the child’s habitual residence immediately before the alleged wrongful removal or retention and, then, unless a specified exception applies, order the child’s return to the state of the habitual residence.

[33] Accordingly, a plain reading of s. 40 of the CLRA and of the relevant Articles under the Hague Convention reveal two fundamental differences between the two types of return applications:

(1) The determination of wrongful removal or retention is not tied to the concept of “habitual residence” under s. 40 of the CLRA. In fact, s. 40 contains no reference at all to the term “habitual residence”.

(2) If the court is satisfied that a child “has been wrongfully removed to or is being wrongfully retained in Ontario” under s. 40 of the CLRA, unlike under the Hague Convention, the court is given broad powers to make orders, including staying the application on conditions. This is in direct contrast to the Hague Convention which provides that, once there has been a determination of wrongful removal, subject to specified exceptions, the child must be returned to the state in which he or she was habitually resident.

[34] While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applications. The court’s ability to exercise a broader range of powers under s. 40 is particularly important.

(iii) The Rationale for the Differences Between the Schemes

[35] There is good reason to distinguish between a return application under the Hague Convention and under s. 40 of the CLRA.

[36] In relation to Hague Convention matters, it is widely recognized that, between contracting states, the country of habitual residence is the most appropriate location to determine custody and access issues. Accordingly, the purpose of the Hague Convention is to ensure that, between signatories to the Convention, there is “the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. The return order is not a custody determination, but an order designed to “restore the status quo” existing before the wrongful removal or retention and “to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction”: Balev, at para. 24.

[37] The fact that a state is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. By becoming a signatory to the Hague Convention, states agree to follow the reciprocal obligations as set out in the Convention. By virtue of signing the Hague Convention, signatories warrant that they are:

[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody. [Emphasis added.]

Given the paramountcy of the child’s best interests in custody and access decisions under the CLRA, the warranty that Hague Convention signatories also treat the best interests of children as of supreme importance is critical.

[38] When considering whether to return a child to a non-signatory state, there is no basis to assume that the receiving state will determine custody and access issues based on the child’s best interests. As noted by Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 61, “[s]ome non-signatory countries may do so; others may not.” By way of example, in this very case, there is a significant dispute between the parents as to whether, in the U.A.E., considerations other than the child’s best interests might prevail.

[39] Over the objections of the mother, the father was permitted to file expert affidavit evidence on the Application. The father’s expert maintains that, among other things, the U.A.E. court will consider what is in the best interests of the child.

[40] The mother asks to file two expert reports as fresh evidence on appeal, both of which conflict with the father’s expert evidence on the Application. The father opposes the admission of the evidence. I would admit it.

[41] I start with the observation that where a child’s best interests are at issue, the test for the admission of fresh evidence is applied more flexibly: Ojeikere, at para. 47; Salehi v. Tawoosi, 2016 ONCA 986, at para. 21.

[42] From the time that the Application was scheduled to be heard, the mother found a lawyer, responded to a detailed and lengthy Application, and pulled together her own record which was largely based on evidence located within foreign countries. This was all done in circumstances where, if the mother is to be believed, the father had accessed her iCloud account and locked her out of it so that she did not have proper access to her historical electronic messages. In these circumstances, I accept that she acted diligently, but did not have enough time to obtain an expert report, particularly in the 11 days she had left after the father served and filed his expert’s report.

[43] The mother’s expert reports, addressing how custody and access issues will be dealt with in the U.A.E., are at least as reasonably capable of belief as the father’s expert report. And, they could have affected the result and are necessary in so far as they are relevant to the child’s best interests. Therefore, I would admit the mother’s expert reports as fresh evidence on appeal. I would also admit the father’s responding affidavit.

[44] I will not go through the experts’ reports in detail as it is not possible to reconcile their competing views, particularly on appeal. Suffice to say that the experts disagree on how custody and access issues would be dealt with if the child were to be returned to the U.A.E. While the father’s expert suggests the child’s best interests would be prioritized, the mother’s experts suggest otherwise. The mother’s expert reports suggest that, in any custody and access dispute, as a Christian, non-national, Canadian-Lebanese, non-Arabic speaking woman, the mother would be treated differently than the father who is a Muslim, non-national, Saudi Arabian-United Kingdom man. According to the mother’s experts, under Sharia law, the parents could be treated very differently in terms of their suitability as a custodial parent and, indeed, the mother’s suitability to even remain in the U.A.E.

[45] I note the conflict in the experts’ reports to underscore that, when it comes to non-signatories of the Hague Convention, it cannot be presumed that the non-signatory state adheres to the fundamental precepts of the Hague Convention.

[330] After outlining in detail the nature of the error made by the application judge, and what the application judge should have focussed on instead, the Court summarized the problem at paragraph 69 of its decision.

[69] By incorrectly applying a Hague Convention framework, the application judge proceeded as if she had no option but to return the child to her habitual residence: Dubai. Leaving aside that habitual residence did not need to be decided in this Application, the question of remedy brings into sharp focus the second fundamental difference between the Hague Convention and s. 40 of the CLRA. The fact is that under s. 40, unlike under the Hague Convention, the court is given broad discretionary powers when determining what order will remedy a wrongful removal to or retention in Ontario.

[331] In the end, the Court set aside the order returning the child to Dubai.

[332] In M.A.A. v. D.E.M.E., 2020 ONCA 486, decided very shortly after Rawdah, the Court of Appeal for Ontario held that the lower Court had erred in ordering three children (4, 7, and 11 years old), in Canada with their mother and the subjects of a pending refugee (asylum) claim, back to Kuwait (where their father was, and where the family had lived previously).

[333] Kuwait, like the United Arab Emirates, is not a signatory to the Hague Convention.

[334] For our purposes, the most salient portions of the decision are paragraphs 38-45, 58-59, and 68-79.

[38] Child abductions (also called “wrongful removals” or “wrongful retentions”) can greatly harm children and seriously disrupt relationships with parents. Canada is a signatory to an international agreement entitled the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (the “Hague Convention”). The Hague Convention aims to return children to the country where they are classed as “Habitually Resident” based on the belief that the courts in the country of habitual residence are generally best-placed to deal with the issues of where and with whom the child should live. The Hague Convention is incorporated into Ontario law through s. 46 of the CLRA. With respect to non-signatory countries, the CLRA applies and reflects the Hague Convention’s goals of discouraging child abductions by confining Ontario jurisdiction over custody to limited circumstances. This is one of those circumstances.

[39] The legislature and the courts are alive to the potential damage to children’s well-being caused by abductions and seek to discourage self-help attempts by parents in custody disputes. At the same time, even in the face of a wrongful removal from another jurisdiction, s. 23 of the CLRA carves out an exception where the child is physically present in Ontario and the court is satisfied on a balance of probabilities that the child would suffer serious harm if removed from Ontario.

[40] The threshold for engaging the harm exception differs under the CLRA and under the Convention: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at paras. 111-114.

[41] Here, the father seeks a return of the children to their habitual residence of Kuwait, which is not a signatory to the Hague Convention. The CLRA alone applies.

[42] Section 23 sets out a serious harm exception to the limits on Ontario’s jurisdiction to make custody and access orders established by ss. 22 (jurisdiction) and 41 (enforcement of extra-provincial orders):

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.

[43] This court has determined that the serious harm analysis under the CLRA is less stringent than the “intolerable situation” test under the Hague Convention. Laskin J.A. came to this conclusion in Ojeikere, at paras. 59-61 because of the different wording used in the CLRA and also:

… because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases … Some non-signatory countries may do so; others may not.

[44] In Ojeikere, Laskin J.A. took a holistic approach to the determination of serious harm and concluded that, based on a combination of factors, the children were at risk. He considered: (i) the risk of physical harm; (ii) the risk of psychological harm; (iii) the views of the children; and (iv) the mother’s claim that she would not return to the habitual residence even if the children were required to do so.

[45] Here, the application judge determined that Ontario could not exercise jurisdiction to make custody and access orders because she was not satisfied on a balance of probabilities that the children would suffer serious harm if returned to Kuwait. In coming to this conclusion, she discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence. She made this assessment in the face of uncontradicted evidence from three separate OCL experts that the children’s views were in fact independent. She did not explain why this expert evidence should be rejected. This was an error.

[58] All of the Ojeikere factors are present here. There is a risk of physical and psychological harm, the children’s views are clear and – considering the new evidence including the “obedience order” – the mother cannot realistically return to Kuwait. She has been the primary caregiver since birth and the children would likely lose their primary caregiver if forced to return to Kuwait. (The father’s statement that he would not enforce the custody order or the obedience order offers little reassurance).

[59] On the evidence before this court, I am satisfied on the balance of probabilities that the children would suffer serious harm if returned to Kuwait. The Ontario court may exercise its jurisdiction to make custody and access orders for these children.

[68] Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim.

[69] The OCL’s submissions (and the mother’s alternate submission) go further to suggest that the entire application, including the mother’s request that Ontario exercise its jurisdiction to make custody and access orders for the children under s. 23 of the CLRA, should have been adjourned pending the refugee determination. I disagree for three reasons.

[70] First, it is the s. 40(3) return order that would engage the non-refoulement principles, not the s. 23 analysis. Section 40(3) empowers the court to make a return order in extra-provincial matters. The section reads:

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[71] Section 40 confers broad powers on the court and unlike the terms of the Hague Convention, does not require a return of the child to his or her habitual residence absent engagement of the harm exception.

[72] A return order must not be made under s. 40(3) in the face of a pending refugee claim. This is consistent with the submissions of Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of the removal order under s. 40(3) that extinguishes the refugee claim. (I would leave to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim).

[73] Second, the OCL submits that the serious harm analysis in s. 23 should not proceed until the refugee determination is made because it is only after a positive refugee determination that the children would have the benefit of a rebuttable presumption of the risk of harm. In A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, this court held that, in the Hague Convention context, refugee status gives rise to a rebuttable presumption of a grave risk of harm on return to the child’s habitual residence. While A.M.R.I. concerned the Hague Convention, the rebuttable presumption would also apply in contemplating a return to a non-signatory country in the face of refugee status.

[74] It defies common sense to require children to await a refugee determination because the case for serious harm may get stronger. If the court is satisfied as to serious harm, it may exercise jurisdiction under s. 23 and proceed to make custody and access orders for the children even before the refugee determination.

[75] The OCL is concerned that in the face of a pending refugee claim a court might, as here, conclude that it is not satisfied as to serious harm under s. 23 and the rebuttable presumption would be lost. In other words, if the court is not satisfied that the child would, on the balance of probabilities, suffer serious harm as required by s. 23, the court would not exercise its jurisdiction. This, it is suggested, would render unavailable the rebuttable presumption of harm for the purposes of s. 23 articulated in A.M.R.I. when the child ultimately qualifies as a refugee. I do not share this concern.

[76] When the issue is potential harm to children, the courts must always be guided by the children’s best interests. If a rebuttable presumption of harm arises from a refugee determination following an adverse s. 23 finding, the court would be required to revisit the s. 23 determination using the rebuttable presumption flowing from the child’s new status as a refugee.

[77] Under s. 23, the court must be satisfied that the child would, on the balance of probabilities, suffer serious harm. When the child becomes a refugee, A.M.R.I. requires a fundamental shift in the court’s approach by introducing a rebuttable presumption that the child would with some certainty suffer serious harm. Introducing a rebuttable presumption means the court must consider harm differently for the purpose of s. 23.

[78] When a request is made for the court to exercise jurisdiction under s. 23 in the face of a pending refugee claim, but the court is not satisfied that the serious harm requirement has been met, the court may want to consider exercising its power under s. 40(2) to stay the proceedings until the refugee claim is determined. However, even when the court concludes that the s. 23 test was not previously met, it will always be required to revisit the s. 23 analysis in light of the refugee determination and through the lens of the rebuttable presumption of harm. Most importantly, the return order under s. 40 could not be made before the refugee claim is resolved.

[79] Finally, the best interests of the child require that when the court is satisfied as to serious harm under s. 23, there be no further delay in making custody and access orders. This case demonstrates why. The new evidence describes that the children are anxious, exhibiting physical symptoms, and unsure of their immediate future. A delay is not in their best interests.

[335] The Court of Appeal for Ontario concluded, on a balance of probabilities, that the children would suffer serious harm if returned to their habitual residence of Kuwait, and thus, Ontario should exercise jurisdiction to determine the issue of custody.

[336] In Chaudry v. Khan, 2016 ONSC 7773, Justice Corbett confronted one of the arguments made here by N., that is that Ontario has no jurisdiction over Z. and E. because they are not habitually resident in Ontario and, among other things, there is an application for custody of or access to the children that is pending before an extra-provincial tribunal (in Dubai, where they are habitually resident).

[337] F.’s counsel submit that the father’s argument described above is defeated on the basis of Justice Corbett’s decision, specifically His Honour’s comments at paragraphs 43-45.

[43] In Obregon v. Obregon, the court concluded that this third criterion has to be read with a temporal eye: “I am satisfied that this criterion must relate and speak to the time the application in Ontario was commenced and not thereafter.”19 This makes sense: the other factors in s. 22(1)(b) imply some sort of comparison between Ontario and another place with jurisdiction over the children. There would be no point in making that comparison if the dispute could be decided by commencing proceedings in that other jurisdiction. And if it is open to an Ontario court to refuse to enforce an extra-territorial order, then it must also be possible to conclude that extra-territorial proceedings are not necessarily a bar to jurisdiction in Ontario.

[44] In the case before me, this contextual reading of factor (iii) needs to be taken further. Bahraini proceedings were commenced by Mr Chaudry before he commenced this proceeding in Ontario. Ms Khan never took the initiative to commence proceedings. Both parties recognized that they had an irreducible disagreement over whether the children should be in Bahrain or Ontario before proceedings were commenced anywhere. In H.E. v. M.M., the parties had litigated in Egypt and the mother brought the children to Ontario in breach of the order of the Egyptian court. The trial judge was critical of this conduct and emphasized the importance of the fact that the mother had attorned to and participated in the Egyptian proceedings. The Court of Appeal was critical of this reasoning and found that the trial judge had placed too much emphasis on attornment.20 In the case before me, Ms Khan did not attorn to the Bahraini court, the proceedings were commenced after she left the country, and she received no actual notice or opportunity to participate in them. On the logic of H.E. v. M.M., the proceedings taken in Bahrain by Mr Chaudry after Ms Khan had left the country do not constitute a “pending proceeding” within the meaning of s.22(1)(b)(iii) of the CLRA.

[45] Finally, I conclude that the Bahraini proceedings have not been pursued in good faith in any event. Mr Chaudry knew how to reach Ms Khan to give her practical notice of the Bahraini proceedings. From Ms Khan’s perspective, the Bahraini proceedings were taken in secret, without notice to her, for the obvious purpose of precluding her from defending her position on the merits, both in Bahrain and in Ontario on jurisdictional grounds. The Bahraini court has already issued its order, and, for reasons set out below, this court will not recognize that order. Given all these circumstances, I find that there is no proceeding pending in Bahrain, within the meaning of s.11(1)(b)(iii) of the Act.

Part Four: The Law as Applied to our Facts

Issue Number 1 – Should this Court Assume Jurisdiction?

[338] The short answer is “no”.

[339] At the outset, it should be noted that this Court does not need to concern itself with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as Ms. Jamal made clear in her oral closing submissions that the mother was abandoning any jurisdictional argument under that legislation.

[340] We are, therefore, dealing only with the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. All references below, under this heading of these Reasons, are to that legislation.

Section 22(1)(a)

[341] There is no way that this Court can assume jurisdiction by virtue of section 22(1)(a). Clearly, the children were not habitually resident in Ontario at any time after June 19, 2020, the date that F. and the children came to Canada from Dubai.

[342] As N. did not come with them to Canada on that date, and as N. has not been in Canada since that date, there is no way to find that the children resided with both parents in Ontario at any time after June 19, 2020. Thus, section 22(2)(a) cannot be satisfied.

[343] There was no separation agreement permitting the children to live with F. in Ontario after June 19, 2020, and no court order to that effect, and it is not even argued by the mother that the children were living with their mother in Ontario with the consent, express or implied, or the acquiescence of N., and therefore, section 22(2)(b) cannot be met.

[344] Section 22(2)(c) is not relevant at all. And, given the findings made immediately above, this Court does not even need to consider section 22(2)(3).

[345] In conclusion, this Court cannot exercise jurisdiction under section 22(1)(a). That is not a close-call. I turn next to section 22(1)(b).

Section 22(1)(b)

[346] Section 22(1)(b)(i) is not contested by the father – the children were physically present in Ontario at the commencement of F.’s claim (her Answer dated September 21, 2020, located at tab 2 of the Trial Record).

[347] Section 22(1)(b)(ii) is contested by the father, and I agree with him. F. has not satisfied this Court on a balance of probabilities that there is substantial evidence concerning the best interests of Z. and E. available in Ontario. The following factors drive that conclusion:

(i) these children have lived in Ontario for six months, while Z., just over four years old, lived in Dubai for all of the rest of her life;

(ii) at trial, putting aside the experts, it is telling that nobody in Ontario testified except for F. and her mother - everyone else was outside of Ontario, including the only person who has ever lived long-term with these children and their parents, under the same roof, Mary;

(iii) JESS has as much, likely more, to offer a court about Z. as does the school in Milton;

(iv) since February 2012, F. has spent a very small fraction of her time in Ontario (182 days up until June 19, 2020), and N. even less time, and the two children not much time; and

(v) ever since June 19, 2020, when F. and the children arrived in Ontario from Dubai, the world, including Ontario, has been in the grips of a deadly health pandemic which has forced persons to spend most of their time at home, begging the question of what could possibly be substantial about any evidence existing in Ontario, at least over the last six months, that would enlighten a court about the best interests of Z. and E.

[348] Section 22(1)(b)(iii) is contested by the father, and I concur with him. As of September 21, 2020, when F. filed her Answer in Ontario, there was most certainly a pending court proceeding in Dubai, where the children were in fact habitually resident, and the evidence of Ms. Hamade, which evidence I accept, confirms that the said proceeding was for custody of or access to the children, and F. admitted in her evidence that she was aware of and had been served with the Dubai court paperwork more than one month previously (in early August 2020).

[349] The Chaudry case is of no assistance to the mother. It has nothing to do with our situation but rather addresses one where the foreign proceeding is taken in secret, without any notice to the person in Ontario, and for strategic reasons to bolster the position of the foreign party. That is not at all what occurred here.

[350] This case should have proceeded with F., who unilaterally chose to stay in Ontario after June 19, 2020, against the express wishes of N. and contrary to the mutual understanding between the parties before she left Dubai with the children, bringing the matter to court in Ontario, without delay, to settle the jurisdictional issue. She did not do that. Instead, it was N. who first went to a court in Dubai, and then to this Court in Ontario, with F. not making a claim in Ontario until she filed her Answer to N.’s Application in Ontario, that Answer dated September 21, 2020.

[351] Section 22(1)(b)(iv) is not relevant here. It presents no bar to the mother’s jurisdictional argument.

[352] Section 22(1)(b)(v) is contested by the father, and I agree with him. These children do not have a real and substantial connection to Ontario. They definitely have a connection, as Z. was born here, and they have visited here, and their parents have visited here, and they are here now, and their mother is here now, and their mother lived here for many years before February 2012, and they have other family here, and they are citizens of this country, as examples of that connection.

[353] All true. Also true, however, is that E. was born in Dubai, lived in Dubai and would still be living there but for his mother’s unilateral decision to stay in Ontario. His father is in Dubai. His live-in nanny for the first seven months of his life is in Dubai. Z., after birth, lived her whole life in Dubai.

[354] The “real home” of these children is in Dubai. Ontario is a special place where the family has roots and loved ones and vacation memories. That does not make it the children’s real home.

[355] Whether there was an intention on the part of F. to move to Canada permanently is of no assistance to the mother’s argument. If she had that intention, N. did not share it, and there was never any agreement between them to move to and live in Canada. For reasons outlined above regarding the credibility of the witnesses, I reject F.’s evidence about there being some agreement or settled intention or plan for the family to move to Canada.

[356] I think that M.G. is probably telling the truth about N. having told her twice in the past that he wanted to find a place here to live-in, but nothing came of it. That evidence does not change my assessment of F.’s credibility, and it does not change my analysis of this factor, section 22(1)(b)(v).

[357] In my view, the Wang v. Lin decision is quite relevant here, and it supports this Court’s conclusion on section 22(1)(b)(v). I adopt these submissions made in the written closing submissions filed on N.’s behalf, dated November 23, 2020, at paragraphs 84-87.

84. The application of the real and substantial connection test has two distinct parts. First, the court must determine if there is a presumptive connecting factor. Only if there is a presumptive connecting factor will the court be able to find that there is a “real and substantial connection” with Ontario. Second, if it is determined that a presumptive connecting factor exists, the court will turn its mind to the forum non conveniens issues, as mandated by subsection (vi).

85. The law on this is clear:

In Club Resorts Ltd. v. Van Breda, at para. 82, the SCC made clear that “a real and substantial connection must “be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum.” In order to bring greater clarity and predictability to the issue of when the court will assume jurisdiction, the Supreme Court identified a list of presumptive connecting factors for tort cases. A plaintiff must establish that one or more of those presumptive connecting factors exists; if she does, a rebuttable presumption of jurisdiction arises. As discussed below, the Supreme Court left open the possibility that over time courts may identify new factors which also presumptively entitle a court to assume jurisdiction.

Wang v. Lin, 2013 ONCA 33, para. 20

86. It is also clear that the presumptive connecting factor in these cases is the parties’ and the children’s’ “real home”.

While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction. ”The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.”

Wang v. Lin, 2013 ONCA 33, para. 47

87. As held in Wang v. Lin, the existence of a residential property in Ontario (in Wang, the property had been occupied by the parties as opposed to only rented as in this case) did not establish the parties and children’s real home, as the parties had three homes in China. The court considered, where the children went to school, where they had family and friends, and where they were involved in activities, and that the children had lived in China for a number of years and had a live-in nanny. The court also looked at the fact that the parties greatest assets were in China. In the face of these facts, it could not be said that Ontario was the parties’ real home.

[358] As for the balance of convenience, section 22(1)(b)(vi), I agree with Ms. Jamal that this is not an opportunity to punish the mother for her clandestine plot to transplant the children to Ontario, if it was planned in advance, or at a minimum her unilateral decision to stay against the express wishes of the father and contrary to what he reasonably understood in advance of the trip.

[359] We do not punish parents at the expense of the children.

[360] Here, however, the mother cannot meet three of the factors outlined in section 22(1)(b), and in those circumstances it would be a rare beast to then find that the balance of convenience favours Ontario taking jurisdiction. This is not one of those cases.

[361] I also agree with what is submitted at paragraph 89 of the written closing submissions filed on behalf of N., set out below, although it should be noted that, with the advent of electronic hearings over the last several months, the latter half of the quotation from Justice LeBlanc’s decision needs to be taken with a grain of salt.

Subsection (vi), if it applied, requires to the court to consider the balance of convenience. In Heath-Breakspear v. Breakspear, Justice LeBlanc considering the exact same legislation in Newfoundland, in virtually identical facts, wrote as follows:

Finally, I have little difficulty concluding here that on the balance of convenience as referred to in section 28(1)(b)(vi), it is not appropriate for jurisdiction related to custody and access of these children to be exercised in this Province. In this case, these children have spent practically all of their lives in Dubai and the best evidence related to their best interests exists there. To lead that evidence here would be extremely difficult, expensive and inconvenient to say the least. The disruption in leading the evidence available in this Province as regards the best interests of children in a Dubai court would be far less than that of having a hearing here and having the relevant evidence emanating from Dubai heard in this Province.

[362] In conclusion, this Court cannot exercise jurisdiction under section 22(1)(b). I turn next to section 23.

Section 23

[363] This Court may exercise its jurisdiction over custody of Z. and E. if it is satisfied, on balance, that the children would suffer serious harm if removed from Ontario under clause (iii) of section 23(b).

[364] In my respectful view, on jurisdiction, putting aside the Constitutional question, section 23 presented the most legitimately debatable point at trial.

[365] I repeat below the guidance provided by Ojeikere, at paragraphs 58-64 of the Court’s decision.

[58] I conclude that the standard of “serious harm” required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.

[59] The main reason for my conclusion is the difference in language. It seems to me the words “intolerable situation” in art. 13(b) of the Convention import a more stringent standard than simply “serious harm” under s. 23 of the CLRA. And the Legislature must be taken to have been aware of the terms of the Convention when it enacted s. 23. The Convention was signed in 1980. Part III of the CLRA, which includes s. 23, was enacted in 1982 (see S.O. 1982, c. 20) and expressly incorporates the Convention into Ontario law in s. 46. Yet the qualifying words, “an intolerable situation”, found in art. 13(b), and on which La Forest J. relied on in Thomson, are absent from s. 23. As a matter of statutory interpretation, the Legislature must be taken to have intended not to use these uncompromising words to qualify “serious harm”: Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 42. See e.g.: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471, at para. 45. Thus statutory interpretation alone argues for a less stringent standard of harm under s. 23.

[60] There is perhaps a second reason why the s. 23 standard should be less stringent. I expect that the standard under the Convention is exacting, at least in part, because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases

[61] Section 23 applies to cases where a country with potential jurisdiction over the custody of a child is not a signatory to the Convention. Their custody laws may differ from ours. In cases decided under s. 23, an Ontario court will not always have the same assurance that a non-signatory country will, as Ontario does, put the best interests of children first. Some non-signatory countries may do so; others may not.

[62] Both art. 13(b) and s. 23 do, however, have one feature in common. Both require the court to assess the risk of harm. The Convention explicitly requires a risk assessment: the court must assess whether returning the child to the child’s place of habitual residence would give rise to a grave risk of harm. Section 23 does not use the word “risk”. But under s. 23, an Ontario court must still assess the possibility or risk of harm if the child is removed from Ontario. Under s. 23, the court is not assessing harm from a past event; it must predict future harm, in other words the risk of harm. As with any risk assessment, the court must assess both likelihood and severity, in this case the likelihood of future harm, and the severity of future harm.

(c) The factors to assess serious harm in the present case

[63] As important as the meaning of “serious harm” are the factors relevant to its application. Under s. 23, an Ontario court has discretion to refuse to order a child’s return to the child’s place of habitual residence. That discretion should be structured by a list of relevant factors. The relevant factors will vary from case to case. In some cases, one factor may decisively show “serious harm”; in other cases a combination of relevant factors may do so. In this case, I have concluded that a combination of factors, taken together, give rise to a risk that the three children would suffer serious harm if they are required to return to Nigeria. I emphasize, however, that the factors I rely on in this case are particular to its facts, and should not be taken as a list of factors relevant to every s. 23 case.

[64] For determining “serious harm” for the Ojeikeres’ three children, I consider the potentially relevant factors to include:

(i) The risk of physical harm

(ii) The risk of psychological harm

(iii) The views of the children

(iv) Mrs. Ojeikere’s claim she will not return to Nigeria even if the children are required to do so

[366] I conclude as follows:

(i) there is no evidence at trial that Z. and E. are in any risk of being physically harmed if they return to Dubai;

(ii) there is some circumstantial evidence at trial (through Ms. Parker and her opinions about infants, generally) that Z. and E. could be at risk of emotional and psychological harm if they are returned to Dubai without F.;

(iii) there is no evidence at trial about the views and preferences of the children;

(iv) there is a claim by F. that she will not return to Dubai if the children are ordered to return there;

(v) there is nothing else in the evidence at trial that this Court finds to be relevant to the serous harm assessment for Z. and E. (remember that the Court of Appeal for Ontario in Ojeikere did not intend that the factors analyzed therein would be considered to be exclusive or applicable to all cases); and

(vi) more specifically, considering the evidence of Ms. Hamade and Ms. Schildgen, there is a total absence of any reliable evidence at trial that the court system in Dubai will do anything other than (a) determine custody in accordance with the best interests of Z. and E., if contested, and (b) award custody to F., if contested, and (c) approve the settlement proposal tendered by N., if agreed to by the mother.

[367] The whole essence of the mother’s theory is that the children will suffer serious harm if they are returned to Dubai because, in the main, a court in Dubai will not really employ a best interests of the child analysis (see paragraphs 11-15 of the written closing submissions filed on behalf of the mother, dated November 23, 2020). On the basis of the expert evidence, as outlined above in these Reasons, I do not accept that argument.

[368] On factor number (iv), I place very little weight on it. I am not sure that I believe F., for the reasons outlined earlier in this Judgment. Further, even if I did believe her evidence about not returning to Dubai, I do not accept her evidence about how allegedly miserable her life in Dubai was. I do believe that she was unhappy in her marriage, but that marriage will be over now. She deserves to be happy and fulfilled and respected, and that will not happen with N.

[369] Otherwise, however, regarding her evidence about religious discrimination and social isolation and so on, I reject it.

[370] In summary, this Court cannot exercise jurisdiction under section 23. I am not satisfied on a balance of probabilities that serious harm will be suffered upon Z. and E. if they are removed from Ontario.

Attornment

[371] Next, I must address the mother’s argument about attornment. I strongly disagree that N. has attorned to the jurisdiction of this Court.

[372] The uncontroverted facts are as follows:

(i) N. first started a court proceeding in Dubai, and he continues to pursue that proceeding to this day;

(ii) the entire focus of the trial was on the jurisdictional sections of the legislation, and not on section 24, which deals with a custody determination on the merits;

(iii) in his Ontario Application, N. specifically asks for a declaration that the mother has wrongfully removed the children from Dubai, the place of their habitual residence, and an order for their return to Dubai (pages 7-8 of the Trial Record);

(iv) in his Ontario Application, the father expressly asserts that all issues related to custody and access should be determined in a court in Dubai (paragraph 51, page 14 of the Trial Record);

(v) in his Ontario Reply, the father expressly states that he “has not and does not attorn to the jurisdiction of this court” (section 5, paragraph 1, page 48 of the Trial Record); and

(vi) repeatedly, in his Ontario Reply, the father submits that Dubai, not Ontario, is the appropriate jurisdiction to determine all matters of custody and access.

[373] With respect, this does not come anywhere approaching the level required to satisfy the test for attornment. A party attorns to a court’s jurisdiction where s/he goes beyond challenging the jurisdiction of that court and, instead, litigates the claim on its merits. Kunuthur v. Govindareddigari, 2018 ONCA 730, at paragraph 18.

[374] From his pleadings and his counsel’s conduct of the trial, it cannot be argued that N. has litigated the custody claim on its merits. The mother’s counsel point to one phrase in N.’s Ontario Application, wherein he asks that the children be returned to Dubai to his “care and control” (see paragraph 17 of the written closing submissions filed on behalf of the mother).

[375] First, the concept “care and control” is not equal to custody. Mother’s counsel have acknowledged that all throughout the trial in arguing that custody includes decision-making authority, which they say F. will be effectively deprived of by a court in Dubai.

[376] Second, the said phrase cannot be viewed in isolation; it must be considered in the context of the pleadings and the conduct of the trial as a whole.

[377] I do not accept the mother’s attornment argument.

[378] I pause here to note that I disagree with the submission that F. will be deprived of decision-making authority in Dubai. I accept the evidence of both Ms. Hamade and Ms. Schildgen that F. will be granted custody of the children in Dubai, and that means day to day care and the decision-making authority that goes along with that. Further, I accept the evidence of Ms. Hamade that the rights of the custodian are not subject to those of the guardian. Besides, the fact that the guardian, N., is able to make certain decisions about the children is of no consequence here, in terms of prejudice to F., because the evidence demonstrates that things like education and religion for Z. and E., including the place of schooling for Z., were not subjects of dispute between the parties by the time that F. left with the children in June 2020. There is simply no basis in the evidence at trial to conclude that the custodial rights of F. in Dubai will be some illusory concept that will not have any real meaning to it. I find otherwise.

Issue Number Two – Should the Children be Returned to Dubai?

[379] The short answer is “yes”.

[380] I should add that my fervent hope is that F. will return with the children to Dubai. She is such a loving and caring and devoted mother, and she has been a powerful force in the lives of these two children. She has so much to offer them. I know that she testified that she cannot be happy in Dubai, but I encourage her to consider whether it might be different without the unfulfillment that came with her marriage to N., especially as of late.

[381] If she chooses, still, to not return to Dubai, then I remain confident that the children must return, and it is in their best interests to do so.

[382] Here, I repeat again the guidance provided by the Court of Appeal for Ontario in Rawdah, at paragraph 69 of its decision.

[69] By incorrectly applying a Hague Convention framework, the application judge proceeded as if she had no option but to return the child to her habitual residence: Dubai. Leaving aside that habitual residence did not need to be decided in this Application, the question of remedy brings into sharp focus the second fundamental difference between the Hague Convention and s. 40 of the CLRA. The fact is that under s. 40, unlike under the Hague Convention, the court is given broad discretionary powers when determining what order will remedy a wrongful removal to or retention in Ontario.

[383] Hopefully, this Court has made it clear that it is not applying a Hague Convention framework. That is precisely why I have focussed on non-Hague Convention jurisprudential authorities, and why I have emphasized the important distinction drawn by the Court in Ojeikere.

[384] In any event, the only appropriate order here is that the children shall be returned to Dubai, United Arab Emirates, though that is subject to a consideration of the mother’s Constitutional Application.

[385] There is no submission by the mother that this Court do something else, if it rejects her position on sections 22 and 23, which I have done. That is made very clear on a review of the document, “Closing Submissions of the Respondent – F.”, dated November 23, 2020. In that document, counsel provide a helpful five-step framework for this Court to follow. Step three is section 40 of the legislation, the potential “return order”, this Court having now rejected the mother’s arguments under sections 22 and 23.

[386] On page 72 of the said document, it is submitted that the return order is discretionary. I agree. But the mother’s counsel offer no other potential alternative, other than to suggest that a full-blown “best interests of the child” analysis be undertaken, which wrongly conflates this step with the Constitutional question.

[387] In any event, so that I make myself very clear, subject only to my assessment of the Constitutional Application, I am satisfied on balance that it is in the best interests of Z. and E. to be returned to Dubai, with or without their mother, and for a court in Dubai to determine issues of custody, access, and guardianship for these two children.

[388] I am satisfied on balance that Z. and E. have been wrongfully retained in Ontario: section 40(a). F. came here with the children on June 19, 2020, with return tickets purchased in advance, and on the clear understanding with N. that they would be returning to Dubai after their vacation. F. unilaterally changed that and is keeping the children in Ontario, against the clear protestations of the father and contrary to the stated intention before departure from Dubai.

[389] This Court has no jurisdiction under section 22 or any other related provision of the legislation: section 40(b). And I am not satisfied on balance that Z. and E. would suffer serious harm if they are removed from Ontario and returned to Dubai: section 23.

[390] Thus, this Court may order a party (F.) to return the children to such place (Dubai) as this Court considers appropriate. I have determined that Dubai is the appropriate place for these children to return to, as that is their real home, and that it is in the best interests of Z. and E. to go home, where issues of custody can be determined in Dubai, whether on consent or otherwise: section 40, clause 3.

Parens Patriae Jurisdiction

[391] There is still another point that I must address – section 69 of the legislation, this Court’s parens patriae jurisdiction. Very little time was spent on this by mother’s counsel, whether in written or oral submissions, but it is mentioned briefly in the written submissions, and thus, I should not ignore it.

[392] Not all courts have parens patriae jurisdiction. Only courts with inherent authority of the Chancery Courts can exercise such jurisdiction. The Ontario Superior Court of Justice is one such court. Appointing independent counsel for a child is an example of the exercise of parens patriae jurisdiction, and thus this Court could make such an order regardless of the existence of any statutory authority to do so.

[393] The jurisdiction is not often exercised. It is founded on necessity – the need for the court to act for the protection of those who cannot care for themselves. E. (Mrs.) v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388.

[394] I decline to exercise the jurisdiction here. It would be inexplicable to do so, given the findings and conclusions that this Court has made above.

[395] In summary, thus far, I have determined that this Court has no jurisdiction over custody and access matters for these children, and I have determined that the children must be ordered returned to Dubai.

[396] The next step in the analysis is to consider the Constitutional Application brought by the mother.

Part Five: Issue Number Three – the Constitutional Application

[397] In outlining the positions of the parties below, I have attempted to synthesize the submissions made by Mr. Conway (for the mother), Mr. Lokan (for the father), and Ms. Evans and Ms. Garfin (for the Attorney General of Ontario), in (i) their respective facta, (ii) their oral submissions, and, in the case of Mr. Conway, (iii) the Notice of Constitutional Question filed on behalf of the mother.

[398] I discuss the law in some detail below, but a few items cannot wait, however, and the first of them is the impugned provision, section 40, paragraph 3, of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. The entire section 40 is set out below, so that the reader can more readily understand the positions of the parties.

40 Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 1 of section 40 of the Act is amended by striking out “interim order in respect of the custody or access” and substituting “interim parenting order or contact order”. (See: 2020, c. 25, Sched. 1, s. 17)

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application. R.S.O. 1990, c. C.12, s. 40.

[399] Note that the impugned section of the legislation is hereinafter referred to as section 40(3); or section 40, clause 3; or section 40, paragraph 3. All three expressions refer to the same thing – an order that “a party return the child to such place as the court considers appropriate”.

[400] Also set out below are all of the relevant sections of the Canadian Charter of Rights and Freedoms (“Charter”), which Charter forms part of Canada’s Constitution – sections 1, 2(a), 6, 7, and 15.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

[401] Finally, reproduced below are sections 91 and 92 of our Constitution Act, 1867, which provisions outline the division of powers between the Federal Parliament and the Provincial Legislatures.

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1.Repealed. (44)

1A. The Public Debt and Property. (45)

2. The Regulation of Trade and Commerce.

2A. Unemployment insurance. (46)

3.The raising of Money by any Mode or System of Taxation.

4.The borrowing of Money on the Public Credit.

5. Postal Service.

6.The Census and Statistics.

7.Militia, Military and Naval Service, and Defence.

8.The fixing of and providing for the Salaries and Allowances of Civil and other officers of the Government of Canada.

9.Beacons, Buoys, Lighthouses, and Sable Island.

10.Navigation and Shipping.

11.Quarantine and the Establishment and Maintenance of Marine Hospitals.

12.Sea Coast and Inland Fisheries.

13.Ferries between a Province and any British or Foreign Country or between Two Provinces.

14.Currency and Coinage.

15.Banking, Incorporation of Banks, and the Issue of Paper Money.

16.Savings Banks.

17.Weights and Measures.

18.Bills of Exchange and Promissory Notes.

19.Interest.

20.Legal Tender.

21.Bankruptcy and Insolvency.

22.Patents of Invention and Discovery.

23.Copyrights.

24.Indians, and Lands reserved for the Indians.

25.Naturalization and Aliens.

26.Marriage and Divorce.

27.The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

28.The Establishment, Maintenance, and Management of Penitentiaries.

29.Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (47)

Exclusive Powers of Provincial Legislatures

Subjects of exclusive Provincial Legislation

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

93. Repealed. (48)

94. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

95. The borrowing of Money on the sole Credit of the Province.

96. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

97. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

98. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.

99. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

100. Municipal Institutions in the Province.

101. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

102. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

11. The Incorporation of Companies with Provincial Objects.

12. The Solemnization of Marriage in the Province.

13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province.

Non-Renewable Natural Resources, Forestry Resources and Electrical Energy

Laws respecting non-renewable natural resources, forestry resources and electrical energy

92A. (1) In each province, the legislature may exclusively make laws in relation to

(a) exploration for non-renewable natural resources in the province;

(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

Export from provinces of resources

(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

Authority of Parliament

(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

Taxation of resources

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and

(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,

whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

Primary production”

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

Existing powers or rights

(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section. (49)

The Position of the Mother (the Applicant on the Constitutional Question)

[402] There are two parts to the mother’s argument: (i) section 40 is ultra vires (invalid as being beyond the powers or authority of) Ontario, and (ii) section 40 contravenes the Charter protections afforded to F. and the two children.

[403] On branch number (ii), the specific arguments are that section 40 violates the rights of F. and the two children under sections 2(a) and 7 (security of the person) of the Charter. Further, section 40 violates the rights of F. and the two children under section 15 of the Charter. Third and finally, section 40 breaches the rights of the children under section 6 of the Charter, it is argued on behalf of the mother.

[404] Running through these Charter arguments, and a central theme advanced by the mother’s counsel, led in this area by the very able submissions of Mr. Conway, is that an order to remove Canadian citizens, including Z. and E., from this country requires a fulsome “best interests of the child” analysis.

[405] Section 40 should never be applied in a non-Hague Convention case, argues the mother. Further, “best interests of the child” is a Constitutionally-minimum standard that must be applied in every case where a child is deported (which is the effect of a section 40, clause 3 order) from the country. And that means a full “best interests of the child” analysis, the mother submits.

[406] When this Court pointed out that the mother’s argument might be hindered by the observation that the list of Hague Convention countries includes some which may raise an eyebrow among those wedded exclusively to Canadian justice principles, Mr. Conway replied that the “whole thing is unconstitutional”, whether dealing with a Hague Convention country or not.

[407] Section 40, Mr. Conway submits, is prima facie a deportation order, and thus it is something reserved only to Canada’s Federal Parliament. Section 92 of the Constitution does not mention deportation, or even children. So, is section 40, clause 3 justified as an ancillary power that Ontario can exercise? No, submits Mr. Conway on behalf of the mother.

[408] The mother relies upon McKee v. McKee, 1948 61 (ON CA), [1948] O.R. 658-690, and the majority opinion authored by Justice Hogg, concurred in by Justice Aylesworth. Chief Justice Robertson dissented. The said case illustrates that the welfare of the child is all that matters, argues Mr. Conway, and not comity of nations.

[409] The decision of the Court of Appeal for Ontario in McKee was appealed to the Supreme Court of Canada, McKee v. McKee, 1950 10 (SCC), [1950] S.C.R. 700. Seven Judges presided, and the Court split 4-3.

[410] The majority (Justices Cartwright, Kerwin, Estey, and Locke) overturned the decision below and ordered that the infant (in Ontario) shall be returned forthwith to the United States of America (where the other parent was, and where the family lived previously).

[411] The minority (Justices Kellock, Taschereau, and Fauteux) would have upheld the decision below. The minority held that there was no authority to make the order that the parent in the United States of America, the appellant, was seeking because it amounted to a sort of deportation order under the guise of custody proceedings.

[412] Mr. Conway, on behalf of F., relies upon the minority opinion of the Supreme Court of Canada.

[413] The decision of the Supreme Court of Canada was appealed further to the Judicial Committee of the Privy Council, McKee v. McKee, 1951 305. The Lordships unanimously reversed the majority of the Supreme Court of Canada and restored the decision of the majority of the Court of Appeal for Ontario, which decision had upheld the order at first instance made by Justice Wells – custody to the father, in Ontario, with the child remaining in Ontario, and access to the mother who was living in California.

[414] The first full paragraph on page 666 (the D.L.R. version) of the decision of the Privy Council is important. It is set out below.

It is the law of Ontario (as it is the law of England) that the welfare and happiness of the infant is the paramount consideration in questions of custody: see Re Laurin, 1927 468 (ON CA), [1927] 3 D.L.R. 136, 60 O.L.R. 409, following Ward v. Laverty,. [1925] A.C. 101. So also it is the law of Scotland, see M'Learn v. M'Lean, [1947] S.C. 79, and of most, if not all, of the States of the United States of America. Tο this paramount consideration all others yield. The order of a foreign Court of competent jurisdiction is no exception. Such an order has not the force of a foreign judgment: comity demands not its enforcement but its grave consideration. This distinction, which has long been recognized in the Courts of England and Scotland (see Johnstone v. Beattie (1843), 10 Cl. & Fin. 42, 8 E.R. 657, and Stuart v. Bute (1861), 9 H.L..C. 440, 11 E.R. 799) and in the Courts of Ontario (see e.g., Re Davis (1894), 25 O.R. 579; Re Gay, 1926 391 (ON CA), [1926] 3 D.L.R. 349, 59 O.L.R. 40), rests upon the peculiar character of the jurisdiction and upon the fact that an order providing for the custody of an infant cannot in its nature be final.

[415] “The only way to order a kid out of Ontario is to do a full best interests of the child analysis and make a custody order”, Mr. Conway stated in oral closing submissions at trial. Only England and the United States of America are safe, he said; everywhere else is suspect.

[416] The latter submission certainly drew some ire from other counsel, including Mr. Lokan, for the father, and Ms. Garfin, for the Attorney General. I think that the submission was taken as being intolerant of societies that do not seem to match the culture and ethnicity of Ontario, like the Muslim world, for example.

[417] I do not think that Mr. Conway intended that, but we do have to be very careful. We are proud of our justice system here in Canada, and rightfully so. We are very fortunate. Ontario, and Canada generally, have no monopoly over “justice” and access thereto, however. Pushed to its extreme, the mother’s position on the Constitutional issue would mean that no child could ever be ordered out of Ontario because no other place is going to have the same section 24 of our child welfare legislation. And the more and more a foreign place looks different than Ontario, in skin colour and religion and culture, for example, the more likely that its family law system might deviate from ours, it seems to me. I do not think that Mr. Conway intends that extreme position, either.

[418] With regard to section 15 of the Charter, the mother submits that there is no requirement to show that section 40 itself perpetuates discrimination, but just that discrimination will result. For that, the mother relies on the very recent decision of the Supreme Court of Canada in Fraser v. Canada (Attorney General), 2020 SCC 28.

[419] Finally, to summarize, and to be as fair as possible to the mother, I think that it is best to set out below, verbatim, paragraphs 61-102 of the “Factum of the Respondent, F. (Applicant in Constitutional Claim)”, dated October 27, 2020, footnotes and endnotes excluded. The below gives the reader the full picture of the mother’s Constitutional arguments.

61.Division of powers questions start with the court deciding what the ‘matter’ is. What is the dominant feature of the legislation under attack? What is its ‘pith and substance’? What is really going on?

62.The Mother says that regardless of any legitimate provincial claim to authority over ‘children’ or ‘custody’, provinces have never had and do not now have any power, listed, ancillary or incidental, over ‘return’, meaning the transfer of a person beyond the border of a province. That ‘return’ is the dominant feature of s.40(3) of the Children’s Law Reform Act. This action is exclusively federal.

63.The Supreme Court of Canada has already defined the ‘matter’ of s.40 (3). The important thing the SCC did in McKee was to distinguish the surface matter of ‘custody’ from what was really going on namely an action akin to deportation or extradition:

That which is involved in the present case is a matter of custody. The appellant, under the guise of custody proceedings, asks for an order for which there is no authority outside the Extradition Act or the deportation provisions of the Immigration Act. Even if it could be said that such authority resides in the executive, it has not been committed to the courts, Attorney-General for Canada v. Cain [ [1906] A.C. 542 at 546.]. In my respectful opinion, there is no jurisdiction in the courts of Ontario or in this court to make such an order as the appellant seeks or to do otherwise than to apply to the circumstances of this case, the ordinary law of Ontario as to custody, giving due weight, of course, to the California decree.

Vires Question 2: Under what class of subjects does the offending legislation fall?

64.Once a court determines ‘what is really going on’ or the ‘matter’ of the legislation, the next question is: under what class of subjects listed in s.92, does the provincial legislation fall.

65.As to subject matter, neither ‘children’ nor ‘custody’ nor ‘return’ are explicitly listed as provincial classes under s.92. Whereas ‘orders to return children to other countries’ is not a listed power under federal s. 91, this state action is nevertheless an exclusively federal power. ‘Return’ is not listed in s.91 per se, but the Judicial Committee of the Privy Council has determined that ‘return’ is exclusively federal under the peace order and good government part of section 91.

66.In Reference re: Alien Labour Act, s.6 (Can.) [1906] JCJ no. 2, two foreigners, Gilhula and Cain, were arrested and ordered deported pursuant to a federal Act. The foreigners contested the federal right to deport. As against the finding of Anglin J. against Canada, the Lord Atkinson at the JCPC stated:

[5]…One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests

67.Atkinson located this power in the peace order and good government preamble.

[7]… It has already been decided in Musgrove v. Chun Teeong Toy, [1891] A.C. 272, that the Government of the Colony of Victoria, by virtue of the powers with which it was invested to make laws for the peace, order, and good government of the Colony, had authority to pass a law preventing aliens from entering the Colony of Victoria. On the authority of this case s. 1 of the above-mentioned statute would be intra vires of the Dominion Parliament.

68.The necessary implication of Alien Labour is that all acts of removal of a person from Canada are exclusively federal powers. There is no concurrent removal power under the Constitution Act 1867 s.92.

69.Whatever objects the province wishes to deal with under the CLRA must begin and end within the territorial borders of Ontario. This means that Ontario cannot presume to move a person out of Ontario. On the singular occasion when Ontario asserted authority over whether a person was to be sent out of Canada the argument was rejected.

70.The existence of an otherwise legitimate Act (CLRA) dealing with matters wholly within the province, does not ipso facto, allow the province to subsume a power to order a person to be taken out of Ontario. This for the following reasons: (i) the federal government cannot devolve primary authority onto a province even if both levels wanted to; (ii) whatever extra-provincial effects that a particular scheme has, must be executed by federal not provincial authority even in joint schemes. (iii) to be ‘ancillary’, the province must start with a listed s.92 power and trench from this starting position of strength. In this case, Ontario does not even start with a ‘listed’ power, but with an implied power over custody which itself is not plenary. As soon as Ottawa steps in with the Divorce Act, all provincial authority over ‘custody’ disappear. (iv)No province can pass legislation having extraterritorial effect whereas s.40 brazenly announces its extra-territorial purpose.

Constitutional Question #2: Does state action under CLRA s.40 breach the section 2(a) or section 7 security of the person interests of any of the Applicants?

71.Under CLRA s.40 the state (the court) is determining whether to remove custody of the child from the mother. In this case, that state-imposed change of custody carries the substantial risk of permanently breaking the bond between psychological parent and children.

72.The supreme court has determined that the temporary wardship “constitutes a serious interference with the psychological integrity of the parent” and this interference is a breach of security of the person under s.7. In making this G(J) determination, the court effectively followed its previous analysis under Charter s.2 in R.B. v. Children's Aid Society of Metropolitan Toronto.

73.How very much more serious therefore is the state action under CLRA s.40 which, though it may be couched in the language of ‘temporary’ change, in fact produces or has the substantial risk of producing a permanent separation of psychological parent and children far more serious than a temporary wardship. Lamer J. has recognized the increasing seriousness of the constitutional interest:

[87] Although all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the length of the proposed separation of parent from child. For instance, permanent guardianship applications are more serious than temporary custody applications.

74.As to whether state action under CLRA s.40 is nevertheless according to the principles of fundamental justice, consider: in G(J), best interests was at all times admitted to be the test for removal of custody from the mother. Even then there is a breach of s.7. The law coming out of G(J) is this:

[70]…Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.

75.How very much more serious it is when three judges of the Court of Appeal of Ontario announce that s.40 state action is to be done with intentional suppression of the best interests test.90 After G(J), Pollastro may be good law for a Hague case (a matter for another day). It is not good law for a non-Hague case. The Court of Appeal in Geliedan 91and in MAA92 have emphasized this. Removal of a child from Ontario can no longer be done without a substantive best-interests determination.

76.The Supreme Court of Canada has determined that the s.7 interest of the child, to maintain the psychological bond with the mother, is infringed in a mere temporary wardship proceeding without legal aid. Therefore the s.7 security of the person interests of the applicant children in this case are necessarily infringed, by a change of custody (‘temporary’ or otherwise) pursuant to s.40, away from the psychological parent, without a full best-interests determination in the ordinary course.

77.All of the above means that fundamental justice requires that the Ontario court cannot ‘decline jurisdiction’ to determine the custody question. For these children ever to be forced back to Dubai by state action, Ontario must first determine that permanent sole custody to the father is substantively in the children’s best interest, as this is the likely effect of a s.40 order. How can Ontario make such a finding when the Father has already conceded that the mother is the primary caregiver and the psychological parent.

78.The court should clearly recognize that the applicants are, by this Charter application, merely requesting that Ontario courts to conform to universal accepted Canadian custody law rules. ‘Return’ law has sometimes suppressed and avoided those deeply imbedded Canadian Charter values, by presuming to ‘return’ Canadian citizen children to places, without making any Canadian custody determination.

79.Ontario courts have previously acted as though a ‘return’ order can be made without a best interests analysis in the ordinary course whereas the supreme court of Canada has stated: that in every decision concerning a child, the child’s interest and his rights must be the determining factors.’

80.By ‘declining jurisdiction’ the Ontario ‘return’ court nevertheless makes a custody decision (to the Father) which breaches the supreme courts requirement ‘to preserve and protect the relationship between the child and her psychological parent,’ which is the Mother in this case.

81.By ‘declining jurisdiction’ and nevertheless changing custody from Mother to Father, the ‘return’ court contradicts the primary care giver ‘presumption [which] explicitly restores the value of commitment and demonstrated ability to nurture as well as the continuing psychological parenting of the child.’

82.By ‘declining jurisdiction’ on the basis of some combination of ‘habitual residence’ and a ‘wrongfully retained’ test, the ‘return’ court ignores the supreme court’s requirement that, in making any decision involving a child future events rather than to assess the legal import of past acts’ must be the determining criteria.

83.If the return court is to adhere to the rules governing decisions involving a child, the court is prohibited from considering allegations of ‘forum shopping’ or ‘reducing abductions’. These are extraneous political considerations which have nothing to do with this particular child. If the return court seeks to avoid this reality by asserting that this particular case was an ‘abduction’ and this ‘abduction’ needs to be suppressed, the court has assumed the result of a best interest analysis which the return court refuses to carry out. Even if this was an ‘abduction’ (which is denied in this case), that ‘abduction’ fact would not speak to the best interests of the children which continue to demand that they remain with the psychological parent regardless of any alleged ‘abduction’. If the ‘abduction’ were determined to be in the child’s best interest, then the ‘abduction’ fact must be counted as zero value in the best-interests analysis. A fortiori, ‘forum shopping’.

84.To give effect to best interests of this particular child larger considerations such as the general discouragement of ‘abductions’ can play no part whatsoever in the specific welfare decision. The repeated judicial statements, in return cases, that the court had to balance the best interests of the particular child against the welfare of all children generally are statements that are not consistent with the requirement that only the best interests of the child shall determine the child’s fate. Section 7 merely protects that already stipulated right of the individual in a particular case.

85.When the SCC has spoken to ‘comity’, the court is thinking about comity in terms of equivalent legal systems. It is correct and constitutionally-consistent for the SCC and the Ontario court to insist upon returning a child to another province.100 Cases which attempt to assert ‘return’ objections as against other provinces, trivialize the issue at hand. Cases which assert return objections as against the United States and England are almost equally constitutionally trivial. Here is Lebel J. almost unconsciously stating the court’s assumptions about the other place:

63 Finally, the Court of Appeal held that considerations related to foreign law remain relevant to the issue of the assumption of jurisdiction. In Sharpe J.A.'s view, evidence on how foreign courts would treat such cases might be helpful (para. 107). I note in passing, however, that undue emphasis on juridical disadvantage as a factor in the jurisdictional analysis appears to be hardly consonant with the principle of comity that should govern legal relationships between modern democratic states, [page608] as this Court held in Beals. In particular, such an emphasis would seem hard to reconcile with the principle of comity that should govern relationships between the courts of different provinces within the same federal state, as this Court held in Morguard and Hunt. (emphasis added)

86.To automatically extend comity to Dubai, a sharia-law nondemocratic state, on the strength of a judicial attitude of comity between provinces or between ‘modern democratic states’, is inconsistent with the Applicants’ constitutional rights.

87.English courts see this perfectly well

[25]…Hence, in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration.

Does the Mother’s lack of access to justice in Dubai make the Ontario court return decision inconsistent with s.7 of the Charter of Rights and Freedoms?

88.The Applicants’ access to justice in Dubai is impaired. Neither the Mother, or children, will receive constitutionally-minimum legal treatment in Dubai. The Charter requires that the foreign legal system afford constitutionally-minimum legal treatment, assessed from a purely Canadian standard, or the Canadian ‘jurisdiction’ decision will ipso facto, reject handing a matter over to that foreign legal system. Abella J. has stated this in as trivial a case as a courier being possibly unable to pay a foreign filing fee. Sharpe J. has rejected extradition under a treaty because the foreign legal system merely exhibits examples of unreasonable detention before trial.

89.Abella J. states:

120 Moreover, access to justice is constitutionally protected through s. 96 of the Constitution Act, 1867, which limits the legislature's ability to place restrictions on dispute resolution (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 43). As this Court stated in Trial Lawyers, at para. 32:

The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. [Emphasis added.]

90.The effect of the return Order is a change of primary residence and a separation of the child from the primary parent, ordered in the absence of a full best-interests determination in the ordinary course. Such effects are an unconstitutional infringement of the independent constitutional right of primary parent and each applicant child under s.2 and s.7.

Constitutional Question #3: Does the Applicants have a section 15 right to have a best-interests hearing in the ordinary course before any decision involving a child is made?

91.The test under s.15 is:

Does the law create a distinction based on an enumerated or analogous ground?

Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

92.The offensive state conduct is the act of forcibly ‘returning’ a Canadian citizen from Ontario to Dubai, pursuant to a CLRA s.40 change of custody from Mother to Father, where that change of custody is done without a best interests custody analysis.

93.Every other child in Canada, who is not part of this discrete and insular minority (of children coming from non-democratic sharia law countries), is unharmed, both legally and in fact, by the application of the CLRA s.40 ‘wrongfully retained’ test to change their custody and remove them from Ontario. This is because, every other child, when being removed from Ontario, pursuant to CLRA s.40, goes to a geographic location where best interests will then be applied to determine their fate. This does not happen in Dubai or any other non-democratic sharia law country. This is disproportionate impact. This adverse impact of a facially neutral law, infringes the applicants’ right to all the equalities under s 15 of the Charter.

94.A facially-neutral law having discriminatory impact upon a protected group has been determined to infringe s.15 and require differential treatment to produce substantive equality:

The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic, and historical factors concerning the group. The result may be to reveal differential treatment is required in order to ameliorate the actual situation of the claimant group.

95.In our case however, application of s.40(3) has the adverse impact of permanently placing the children in the father’s ‘guardianship’. He controls the passports, he controls all important decisions in the children’s lives. The Mother’s role is reduced to daily caregiver equivalent to a nanny or a babysitter. The badges of primary parent are, in effect, transferred to the Father permanently, by the Ontario court’s s.40(3) decision because Dubai law child custody determinations are effectively fixed, religious-based, prioritizing the father, and, in effect, ignoring the ‘best interests’ of the children. That is the desperate outcome from application of s.40(3) in this case. The Applicants never get a best-interests confrontation.

96.In being forced, by s.40, to return to Dubai, the mother is forced to return to a non-democratic sharia law legal system which discriminates against her. The impact of s.40 upon her is different than if she was returning, for instance, to Alberta. S.40 discriminates against her in the following manner:

i. The Mother is not a citizen and cannot become a citizen. She has no automatic legal right to stay in Dubai. She can easily be separated from her children by the temporary nature of her legal status;

ii. Dubai sets up sex-based rules of conduct: She is not free to work. She is not free to be in the presence of another man who is not a relative. She can be arbitrarily accused of inappropriate conduct because she is a woman for which severe sanctions including loss of children can result;

iii. She is not free to leave her matrimonial home. Leaving sets her up as behaving inappropriately under Dubai law, for which the consequence can be loss of children.

iv. Even in the best case, the Mother’s role is reduced to caretaker. The Father, as guardian, possesses all the badges of custody as understood in Canadian law. She cannot make educational, religious or developmental decisions for her children

v. She cannot stay in the country but for the arbitrary permission, revocable at any time by the Sharia-state.

vi. Her initial entry and remainder in the country was at all times sponsored by the husband. She has no independent right to go to or stay indefinitely;

vii. As a divorced/separated woman she has no sponsor;

viii. She can never leave with the children.

ix. Leaving Dubai with the children will effectively be the Father’s decision.

x. She cannot openly and freely practice her religion.

xi. Prayer with others of the same faith is prohibited. Prayer must be done privately at home. It cannot be done in the religious ‘center’. Shia are not permitted to call their churches mosques.

97.The quantum of harm suffered by each of these Applicants independently, far surpasses the harm found to trigger s.15 in other cases.

98.Mutatis mutandis, each of the children enjoy the same equality right as the mother in this case. They likewise suffer dramatically more severe impact leaving Ontario to return to Dubai, than identically-placed children being returned to Alberta, Scotland or the United States.

99.Considered in the larger perspective, those children and this Mother are discriminated against in that they suffer dramatically more harm, as a direct consequence of Ontario state action under s.40, than any other custody applicant parent in Canada seeking to retain custody of their child and any other child in Canada seeking to maintain his or her bond with the psychological parent.

Constitutional Question #4: Do the children have a section 6 right to remain in Canada and does the return decision breach that right?

100. Each child is a Canadian citizen. A Canadian citizen has a right to remain. State action to remove that citizen is an infringement of the section 6 right to remain. The interest to be protected of the Canadian citizen child, is the right, exercise-able only in Canada, to maintain the child-bond with the psychological mother. This is a more vital interest than the interest already recognized to be protected in Cotroni. Courts which have failed to recognize this s.6 right have reasoned incorrectly. The courts that equalized and cancelled the interests of the parents reasoned wrongly in that only the Mother here is the primary parent. Other s.6 courts have failed to recognize that a parent who has been awarded custody properly exercises the child’s right to remain or leave, whereas the parent who has been awarded s.40 custody has no legitimate best interests right to exercise the s.6 interest of the child as to staying or leaving.

101. The Applicants’ section 1 analysis is set out in the introduction and in the Answer.

PART IV: ORDERS SOUGHT

102. The Applicants respectfully requests, pursuant to s.24 and 52 of the Charter of Rights and Freedoms:

i. A declaration that s.40(3), insofar as it purports to grant authority to order a change of custody for the purpose of removing a Canadian citizen from Canada is ultra vires the province of Ontario and is of no force and effect;

ii. A declaration that s.40(3), insofar as it purports to grant authority to order a change of custody for the purpose of removing a Canadian citizen from Canada, breaches the s.2 rights of each of the Applicant children and the Applicant Mother is of no force and effect;

iii. A declaration that s.40(3), insofar as it purports to grant authority to order a change of custody for the purpose of removing a Canadian citizen from Canada, breaches the s.6 rights of each of the Applicant children of no force and effect;

iv. A declaration that s.40(3), insofar as it purports to grant authority to order a change of custody for the purpose of removing a Canadian citizen from Canada, breaches the s.7 rights of each of the Applicant children and the Applicant Mother of no force and effect;

v. A declaration that s.40(3), insofar as it purports to grant authority to order a change of custody for the purpose of removing a Canadian citizen from Canada, breaches the s.15 rights of each of the Applicant children and the Applicant Mother of no force and effect;

The Position of the Father (the Respondent on the Constitutional Question)

[420] Mr. Lokan, for the father, made some eloquent submissions on the Constitutional question. They may be fairly summarized as follows:

(i) the remedy sought by the mother is extreme – to strike down the section, meaning that Ontario cannot order the return of any child to any place outside the Province;

(ii) on the ultra vires argument, this Court must ask what is the pith and substance of section 40(3), that is, what is its true nature – Canadian Western Bank v. Alberta, 2007 SCC 22, at paragraphs 25-29;

(iii) Mr. Conway is wrong to suggest that there is a hierarchy of legislative powers in Canada; the Federal Parliament does not “trump” the Provincial Legislatures;

(iv) the mother’s focus on a rather strict division of powers scheme in Canada ignores that Constitutional law operates as a “living tree”; it evolves;

(v) the purpose of section 40(3) is gleaned from a look at section 19, and the legal effect of section 40(3) is the return of children to a place they are most closely connected to, for a determination of custody issues in that place, provided no serious harm will result;

(vi) there already exists binding authority that a “return order”, like that permitted by section 40(3), is not a custody determination – Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at paragraphs 23-25;

(vii) it has previously been determined by a Superior Court in Ontario, Justice Ferrier, that section 40 falls within valid provincial authority – Kovacs v. Kovacs (2002), 2002 49485 (ON SC), 59 O.R. (3d) 671, at paragraphs 140-143;

(viii) the mother has put forward an entirely inadequate factual foundation to even determine the Charter issues raised – Mackay v. Manitoba, 1989 26 (SCC), [1989] 2 S.C.R. 357, at pages 361 and 366;

(ix) the mother’s section 7 Charter argument cannot succeed because there has been no deprivation in that section 40, clause 3 is not a custody order, and there is no loss to F. in terms of her security of the person, and if she chooses not to return to Dubai then the breaking of the bond between the children and her will not be caused by section 40 but rather by her choice – Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44;

(x) there exists already binding authority that “best interests of the child” is not a principle of fundamental justice – Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, at paragraph 7 and following;

(xi) even if “best interests of the child” is a principle of fundamental justice, Dubai family courts employ such a test, and whether all of the factors are the exact same as Ontario’s section 24 is irrelevant;

(xii) the mother’s position implies a cultural distinction between Muslim (like the United Arab Emirates) and non-Muslim (like England and the United States of America) countries, and that is offensive and unfair;

(xiii) the mother’s section 2(a) Charter argument is nonsensical as section 40 does not even invoke the protection; it is an order made by a judge and not governmental or state action;

(xiv) besides, there is no evidence to support the prevalence of religious discrimination in Dubai (according to N., Nageen, and Ms. Hamade, whose evidence this Court should prefer over that of F.);

(xv) put another way, there was no reliable evidence adduced at trial of systemic discrimination versus Shia Muslims in Dubai;

(xvi) alternatively, anything complained about by F., if believed by this Court, is not significant enough to amount to a violation of her section 2(a) Charter protection – Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, at paragraph 34;

(xvii) regarding section 15 of the Charter, the mother’s argument depends on the acceptance by this Court of place of residence as an analogous ground, and the test for finding an analogous ground is a fairly tight one, and further, there is already in existence binding authority that place of residence is not an analogous ground – Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, at paragraph 13; and Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at paragraphs 47-48;

(xviii) even assuming that the recent Fraser decision of the Supreme Court of Canada alters the section 15 analogous ground test as set out in Corbiere, the alteration has no impact here;

(xix) per Mr. Smith, who made very brief submissions to supplement those delivered by Mr. Lokan, as a simple matter of statutory interpretation, it cannot be true that section 40(3) deals only with Hague Convention cases, as suggested by Mr. Conway; and

(xx) per Mr. Smith, the only part of section 40 that authorizes an interim change in custody, clause 1, is not being challenged here.

The Position of the Attorney General of Ontario (the Intervenor on the Constitutional Question)

[421] Ms. Evans submits that the nature of this Constitutional Application is very important; there is no challenge to anything except for clause 3 of section 40. The remainder of the section is not being challenged. And, relying upon Balev, clause 3 of section 40 is not a custody hearing or a custody determination.

[422] In terms of the pith and substance of section 40, clause 3, this Court should follow Kovacs. A “return order” is not a deportation order. It has zero impact on a child’s immigration status.

[423] Regarding section 6 of the Charter, Ms. Evans argues that the following authorities are important, all set out below: paragraph 19 of the decision in S.(J.S.) v. S.(P.R.), 2001 SKQB 283, and paragraph 117 of the decision in Kovacs, and paragraph 27 of the decision in J.P.B. v. C.B., 2016 ONCA 996.

S.(J.S.) v. S.(P.R.) [19]. Even if there is an issue as to [S.R.S.]'s rights under s. 6(1) of the Charter I am of the view that a return order under the Hague Convention does not infringe those rights. As noted in Cotroni, supra, the core value protected by s. 6(1) is with respect to exile and banishment. The rights protected by s. 6(1) are not infringed by family law orders relating to the custody or residence of a minor child. Children do not have control over their own residence. They are always subject to the direction of their parents or in the case of parental disputes an order of the Court. While s. 6(1) protects a citizen's right to stay in Canada it also guarantees the citizen's right to leave Canada. If a family law order requiring that a child be returned to the United States breached the child's right to stay in Canada, then equally the family law order requiring the child to stay in Canada would breach the child's right to leave Canada. All family law orders that contain any restriction on a child's residence would prima facie infringe one or the other right under s. 6(1) and would have to be justified under s. 1 of the Charter. If [J.S.S.]'s argument were correct there would be a substantial restriction on the power of the courts to grant custody to parents who live outside of Canada. If a court order under the Hague Convention directing the return of a child to a foreign country infringes s. 6(1), then so too would court orders giving custody to a parent living outside of Canada.

Kovacs [117] In any event, even if a refugee claimant can be said to have some kind of qualified "right to remain in Canada" that right is limited in its scope. The right to remain in Canada set out in s. 4 of the Immigration Act is concerned with ascribing immigration status to persons. It ascribes rights for immigration purposes, to live, work and study in Canada. It does not, however, constitute a broad blanket of immunity from all other laws of general application, particularly those concerned with child protection and welfare. For example, both s. 4(2) of the Immigration Act and s. 6(1) of the Charter grant to Canadian citizens a right to "remain in Canada". Yet, Canadian citizen children of dual citizenship who have been abducted from their country of habitual residence and brought to Canada are not immunized from the application of the Hague Convention, or parallel provincial provisions, and may be ordered returned to their custodial parent in another country.

J.P.B. v. C.B [27] The OCL submits that the children, as Canadian citizens, have a right to remain in Canada pursuant to s. 6 of the Charter. Children who have been abducted from their country of habitual residence and brought to a country where they are citizens are not immunized from the application of the Hague Convention and may be ordered to return to a custodial parent in another country: see Kovacs v. Kovacs (2002), 2002 49485 (ON SC), 59 O.R. (3d) 671 (S.C.), at para. 117.

[424] Section 40, clause 3, has nothing to do with banishment or exile of a child, submits Ms. Evans.

[425] Ms. Garfin submits that section 7 of the Charter has no application here. The “return order” is made by a judge and not by the state. The Charter does not apply to private court matters between parents. In one of the very cases relied upon by the mother, Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, six of the seven Judges presiding did not hold that the Charter applied.

[426] Further, as submitted by Ms. Garfin, if the section 7 Charter claim is grounded in an argument about an alleged lack of procedural fairness, it cannot succeed as we had a full-blown trial in the matter.

[427] On section 2(a) of the Charter, Ms. Garfin submits that (i) there is no state conduct to attack here, and (ii) the impugned section does not interfere with the mother’s ability to practice her religious beliefs.

[428] Regarding section 15 of the Charter, Ms. Garfin submits that the Fraser test is not met here. Place of residence does not qualify as an enumerated or an analogous ground. Further, there is no evidence in the record to suggest that any disadvantaged group that F. allegedly belongs to qualifies as an analogous ground. Ms. Garfin points this Court to paragraph 73 of the decision of the Divisional Court in Canadian Snowbirds Association Inc. v. Attorney General of Ontario, 2020 ONSC 5652, set out below.

Canadian courts have consistently held that residence is not an analogous ground of discrimination to those enumerated in s. 15(1) of the Charter (see R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296; R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995; Siemens v. Manitoba (Attorney General), 2003 SCC 3). In the health care context, the Ontario Court of Appeal found that a distinction drawn between permanent and non-permanent residents for the purposes of OHIP eligibility was “not a distinction made on a ground that is analogous to the enumerated grounds in s. 15(1)” since a person’s status as a “non-permanent resident for the purpose of OHIP eligibility is not immutable” (Irshad (Litigation Guardian of) v. Ontario (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43 at paras. 140 and 136). As put at para. 78 of the Respondents’ Factum:

The location where health services are received is not a “personal characteristic” central to personal identity. It is an inherently mutable status that changes as a person travels or moves through the world. The group of persons in a given place at a given time is transient and heterogeneous, generally composed of persons from all different backgrounds and cross-sections of society. It can hardly be said to constitute a “discrete and insular minority” analogous to the vulnerable minorities enumerated in section 15(1).

[429] Ms. Garfin’s penultimate submission to this Court is simple – this is not a Charter case. All of the things listed in paragraph 96 of the factum filed on behalf of the mother, which paragraph is set out below for easy reference, can be considered by this Court in exercising its discretion as to whether or not to make the order under section 40, clause 3.

96. In being forced, by s.40, to return to Dubai, the mother is forced to return to a non-democratic sharia law legal system which discriminates against her. The impact of s.40 upon her is different than if she was returning, for instance, to Alberta. S.40 discriminates against her in the following manner:

i. The Mother is not a citizen and cannot become a citizen.111 She has no automatic legal right to stay in Dubai. She can easily be separated from her children by the temporary nature of her legal status;

ii. Dubai sets up sex-based rules of conduct: She is not free to work. She is not free to be in the presence of another man who is not a relative. She can be arbitrarily accused of inappropriate conduct because she is a woman for which severe sanctions including loss of children can result;

iii. She is not free to leave her matrimonial home. Leaving sets her up as behaving inappropriately under Dubai law, for which the consequence can be loss of children.

iv. Even in the best case, the Mother’s role is reduced to caretaker. The Father, as guardian, possesses all the badges of custody as understood in Canadian law. She cannot make educational, religious or developmental decisions for her children.

v. She cannot stay in the country but for the arbitrary permission, revocable at any time by the Sharia-state.

vi. Her initial entry and remainder in the country was at all times sponsored by the husband. She has no independent right to go to or stay indefinitely;

vii. As a divorced/separated woman she has no sponsor;

viii. She can never leave with the children.

ix. Leaving Dubai with the children will effectively be the Father’s decision.

x. She cannot openly and freely practice her religion.

xi. Prayer with others of the same faith is prohibited. Prayer must be done privately at home. It cannot be done in the religious ‘center’. Shia are not permitted to call their churches mosques.

[430] Finally, on section 1 of the Charter, Ms. Garfin relies on paragraphs 60-62 of the Attorney General’s factum, reproduced below.

60. In the alternative, if this Court determines that the return order under s. 40 of the CLRA infringes the Charter, any such infringement is justified as a reasonable limit under s. 1 of the Charter.71 Return orders have the pressing and substantial objective of discouraging international child abduction by authorizing the prompt return of a child who has been wrongfully removed from another jurisdiction.

61. The impugned provision of the CLRA is also proportional to its objectives. There is a rational and logical connection between the legal mechanism to order that a child be returned to another jurisdiction and the purposes of discouraging wrongful removal of children and ensuring that custody disputes are adjudicated in the most appropriate forum. A return order under paragraph 3 of s. 40 of the CLRA minimally impairs the Respondent’s and her children’s Charter rights because such orders are not final custody determinations. A proportionate balancing exercise clearly demonstrates that the salutary benefits of promoting the best interests of children and discouraging international child abduction strongly outweigh any negative effect of a return order.

62. Overall, the legislative scheme provides the court with flexible and constitutionally compliant mechanisms to consider the circumstances of the parties before it in each case and to make a determination that is consistent with the overriding purpose of the CLRA – to promote children’s best interests.

Reply Submissions by Mr. Conway, on Behalf of the Mother

[431] As the claimant, the mother got the last word on the Constitutional question. Mr. Conway took this Court to many passages contained in the 1993 decision of the Supreme Court of Canada in Young v. Young, particularly those explaining the importance and the meaning of “best interests of the child”.

[432] That Judgment of the Supreme Court of Canada is somewhat complicated to read, only because there were several sets of reasons delivered, however, Mr. Conway is correct that all of the Judges agreed that the best interests of the child is the, not merely one of the, and not merely a, consideration that must govern all decisions regarding the welfare of children, whether custody or access. Further, all of the Judges agreed that the “best interests of the child” is a term that encompasses a myriad of considerations, with no exhaustive list of those factors really being capable of definition.

[433] Mr. Conway left the Court with two final submissions: (i) always remember the important distinction between Hague Convention and non-Hague Convention cases, and (ii) do not be overwhelmed by the idea of suppressing child abductions and wrongful retentions of children because those things have nothing to do with the best interests of these two children.

The Law as Applied to our Case: Analysis of the Constitutional Issues

[434] The short answer is that I find no Constitutional violation, and thus the Order that the children shall be returned to Dubai must stand.

[435] I think that Mr. Conway’s arguments are good fodder for intellectual debate and perhaps for further reflection in higher courts than this one, but I cannot accede to the arguments here. I say that with much respect for the very competent manner in which the submissions were made.

[436] Simply put, the vast weight of the jurisprudence, almost all of it binding on this Court, precludes me from getting to where the mother wants me to go.

[437] It is not generally recommended that a court simply adopt the submissions of counsel as that practice is susceptible to a finding on appeal of insufficient reasons having been delivered, and I personally have held so in a number of appeals that I have heard from decisions made in the Ontario Court of Justice.

[438] Here, however, I could not possibly put it any better than Mr. Lokan did in his excellent submissions to the Court. Of the twenty items outlined above in these Reasons, I agree with all of them except for one, plus a single caveat.

[439] The one exception is item (viii) – I would not have dismissed the mother’s Application solely on the basis of an insufficient factual foundation having been laid.

[440] The one caveat is item (xii) – I want to repeat that I do not think that Mr. Conway intended to draw a sharp line between “Ontario-looking societies” and nations that are predominantly Muslim. Of course, such a distinction would not only be intolerant but it would be absurd, as there are numerous Muslim-majority countries that are Contracting Parties or, in some cases, full Members of the Hague Convention – Albania, Burkina Faso, Guinea, Iraq, Kazakhstan, Morocco, Pakistan, Turkey, Turkmenistan, and Uzbekistan, included.

[441] If it was intended that Muslim countries are inherently dangerous to return children to, then the mother’s entire argument about section 40, clause 3 being applicable only to Hague Convention nations makes no sense.

[442] Otherwise, I adopt Mr. Lokan’s submissions.

[443] I also agree with Ms. Garfin when she made what I think is an excellent submission – this is simply not a Charter case because (i) the “return order” is not state or governmental action that is subject to Charter scrutiny, and (ii) perhaps more important, every single circumstance that the mother wants to be taken into account (as outlined at paragraph 96 of the factum filed on her behalf) can be taken into account before exercising the discretionary power to make the order in the first place.

[444] On the second point, F. is not a citizen of the United Arab Emirates – I know that. She has no automatic legal right to stay in Dubai – I know that. She has been sponsored by N., and she has no independent right to go to or stay in Dubai indefinitely – I know that.

[445] None of those things, or all of them together, duly considered, affect my decision to order the children returned to Dubai.

[446] As for the rest of the items set out in the said paragraph 96, they have not been established in the evidence at trial that I do accept.

[447] As I said earlier in these Reasons, running through the mother’s Charter arguments, and a central theme advanced by the mother’s counsel, is that an order to remove Canadian citizens, including Z. and E., from this country requires a fulsome “best interests of the child” analysis. With respect, I disagree.

[448] What does that mean – a fulsome best interests of the child analysis? The application of section 24 and an award of custody to one of the parents, on the merits? If that is what it means, then that cannot be correct because of Balev, which is binding authority from the highest level in Canada. And that authority is not dependent on the foreign country being a signatory to the Hague Convention.

[449] There is nothing in Balev which supports the submission that its conclusion about a “return order” not being a custody order is limited to cases where the foreign place is a Hague Convention country. It is true that, in Balev, at paragraph 24, where the Supreme Court of Canada clearly states that a “return order is not a custody determination”, the direct reference is to Article 19 of the Hague Convention. But the context of that statement, which context explains the very rationale underlying the purposes of the return order, is equally applicable to non-Hague Convention cases. The aim is to enforce custody rights and secure the prompt return of wrongfully removed or retained children (Z. and E.) to their country of habitual residence (Dubai). The objectives are to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent (F.) of any advantage that might otherwise be gained by the wrongful retention of the children. The goal of the return order is to return the children to the jurisdiction (Dubai) which is most appropriate for the determination of the custody and access issues. At paragraphs 25-27 in Balev, the Court goes on to outline the three related purposes of a return order, and all of them are, in my opinion, equally applicable to our case, despite Dubai not being a signatory to the Hague Convention: (i) to protect children from the harmful effects of wrongful removal or retention, and (ii) to deter parents from abducting or wrongfully retaining children in the hope that they will establish links in the new country that might ultimately award them custody, and (iii) to eliminate “forum-shopping” and disputes about the proper forum for the resolution of custody and access issues by promptly returning the children to the place of their habitual residence for a speedy adjudication of the merits of the custody and access issues there.

[450] Further, the submission that the statement in Balev that a return order is not a custody determination is limited to Hague Convention cases makes no common sense, in my view. The distinction between Hague Convention and non-Hague Convention countries has always been with regard to the harm analysis (see Ojeikere, for example). No case has ever said that the distinction also extends to the import of what the section 40, clause 3 order actually is.

[451] I suspect that no case has ever said that because it ignores the plain wording of section 40 as a whole. I also suspect that no case has ever said that because, if true, it would defeat the entire purpose of the section 40, clause 3 order. If the order is a custody order, then what is the purpose of returning the children to the foreign place to have custody determined there on the merits? Respectfully, the mother’s position cannot be correct.

[452] Section 40 should never be applied in a non-Hague Convention case, argues the mother. I disagree. Again, there is nothing in the section that suggests that it applies only to Hague Convention cases, and there is no jurisprudential authority for that proposition. Further, if the mother is correct, then the consequence is that Ontario cannot return a child to a non-Hague Convention country, ever, regardless of the circumstances, and regardless of whether a full-blown section 24 analysis has been conducted (as the mother suggests should be done).

[453] “Best interests of the child” is a Constitutionally-minimum standard that must be applied in every case where a child is deported (which is the effect of a section 40, clause 3 order) from the country, argues the mother. I disagree. Beyond the fact that a section 40, clause 3 order is not a deportation order, that submission cannot be squared with Canadian Foundation (2004, SCC 4), which is binding Supreme Court of Canada authority.

[454] Besides, the evidence at trial proves that the best interests of these children will be the paramount consideration in a court in Dubai. Will all of the factors that a court in Dubai looks at be the exact same as section 24 of our Ontario legislation? Very likely not, but that could be said about every country, including all of the signatories to the Hague Convention.

[455] Section 40, clause 3, Mr. Conway submits, is prima facie a deportation order, and thus it is something reserved to Canada’s Federal Parliament. It cannot fall within an ancillary power available to Ontario, it is argued on behalf of the mother. I disagree. I find that the pith and substance of the impugned section is as submitted by Mr. Lokan, and I concur with the analysis conducted and the decision reached by Justice Ferrier in Kovacs, with regard to the ultra vires argument.

[456] In my view, section 40, clause 3, is all about the return of children to a place (in this case, Dubai) that they are most closely connected to, for a determination of custody issues in that place, provided no serious harm will result (which I have found to be the case here).

[457] I agree with Mr. Conway that the McKee v. McKee case is important, and I set out below, again, the first full paragraph on page 666 (the D.L.R. version) of the decision of the Privy Council.

It is the law of Ontario (as it is the law of England) that the welfare and happiness of the infant is the paramount consideration in questions of custody: see Re Laurin, 1927 468 (ON CA), [1927] 3 D.L.R. 136, 60 O.L.R. 409, following Ward v. Laverty,. [1925] A.C. 101. So also it is the law of Scotland, see M'Learn v. M'Lean, [1947] S.C. 79, and of most, if not all, of the States of the United States of America. Tο this paramount consideration all others yield. The order of a foreign Court of competent jurisdiction is no exception. Such an order has not the force of a foreign judgment: comity demands not its enforcement but its grave consideration. This distinction, which has long been recognized in the Courts of England and Scotland (see Johnstone v. Beattie (1843), 10 Cl. & Fin. 42, 8 E.R. 657, and Stuart v. Bute (1861), 9 H.L..C. 440, 11 E.R. 799) and in the Courts of Ontario (see e.g., Re Davis (1894), 25 O.R. 579; Re Gay, 1926 391 (ON CA), [1926] 3 D.L.R. 349, 59 O.L.R. 40), rests upon the peculiar character of the jurisdiction and upon the fact that an order providing for the custody of an infant cannot in its nature be final.

[458] There is nothing about the “return order” being made by this Court for these children that in any way runs afoul of those sentiments as expressed by the Privy Council.

[459] “The only way to order a kid out of Ontario is to do a full best interests of the child analysis and make a custody order”, Mr. Conway submitted. No, not according to Balev.

[460] Finally, I wish to address the very closing submissions made on behalf of the mother, in Mr. Conway’s oral reply argument. Regarding the decision of the Supreme Court of Canada in Young v. Young, it is difficult to apply that decision to our case because it had nothing to do with returning a child to a foreign place and nothing to do with making an order that does not determine custody or access. Nevertheless, I agree with Mr. Conway that the case is important for its strong endorsement of the paramountcy of the principle, “best interests of the child”.

[461] I repeat, I am confident that the return of Z. and E. to Dubai is in their best interests.

[462] The mother’s counsel have repeatedly urged this Court to keep in mind that this is not a Hague Convention case. I have done so. And I have been urged further to avoid the temptation to return the children to Dubai as some sort of punishment to the mother for what she has done, or as some kind of abstract commentary on the need to suppress child abductions and the wrongful retentions of children, generally. I agree with that. That is not why the Order is being made.

This Court’s Answers to the Constitutional Questions Raised in the Mother’s Application

[463] In brief summary, without inviting the reader to ignore all of the rest of these Reasons, for convenience sake, taking the mother’s Constitutional arguments in the order in which they were advanced:

(i) I am not satisfied on balance that section 40, clause 3, is beyond the powers of Ontario; in fact, I find that it falls within Ontario’s lawful authority to legislate matters of child welfare and family law;

(ii) I am not satisfied on balance that section 40, clause 3, is a violation of the Applicants’ section 2(a) Charter rights as (a) an order under the impugned section does not invoke the Charter, and further, (b) I find as a fact on the evidence adduced at trial that there is no curtailment in Dubai of the Applicants’ freedom of religion, as Shia Muslims;

(iii) I am not satisfied on balance that section 40, clause 3, is a violation of the Applicants’ section 6 Charter rights as (a) an order under the impugned section does not invoke the Charter, and further, (b) the Order of this Court does not banish or exile or deport, and thereby infringe the mobility rights, of anyone;

(iv) I am not satisfied on balance that section 40, clause 3, is a violation of the Applicants’ section 7 Charter rights as (a) an order under the impugned section does not invoke the Charter, and further, (b) the Order of this Court does not deprive the Applicants of anything to do with their security of the person; and

(v) I am not satisfied on balance that section 40, clause 3, is a violation of the Applicants’ section 15 Charter rights as (a) an order under the impugned section does not invoke the Charter, and further, (b) the Order of this Court does not discriminate based on any enumerated or analogous ground.

Conclusion on the Constitutional Application

[464] The mother’s Constitutional Application is, therefore, dismissed. Section 40, clause 3, is intra vires Ontario. There is no violation of any Charter-protected interest on the part of F. or the children. Section 1 of the Charter is not reached.

Section 1 of the Charter

[465] If this Court had found a violation of sections 2(a), 6 and/or 15, I would likely have held that section 40, clause 3, was “saved” under section 1 of the Charter.

[466] If this Court had found a violation of section 7 on the basis of a deprivation of security of the person not in accordance with the principles of fundamental justice, I would have been hesitant to “save” the legislative provision under section 1, given the history of the jurisprudence in Canada to date on the interaction among sections 7 and 1 of the Charter. I would have requested further submissions from counsel on the issue.

Part Six: this Court’s Order

[467] The enormity of the decision made herein is not lost on me. We judges are not supposed to make personal remarks in our decisions, but I do not mind a transgression from that to say that I have not been able to stop thinking about the case since the trial started, and I consider my task here to have been likely the most important in my judicial career to date.

[468] If either side wishes to address the issue of costs, s/he may contact the trial office in Milton to speak to that, whether in writing or orally via Zoom.

[469] By the authority of section 40 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, specifically clause 3, this Court declares and orders as follows:

(i) the Respondent mother, F., has wrongfully retained the children, Z. (born…) and E. (born…), in Ontario; and

(ii) the children shall forthwith be returned to Dubai, United Arab Emirates.

[470] This Court’s Order shall also include clauses 3, 4, 5, 6, 7, and 8 contained in the draft Final Order attached to the written closing submissions filed on behalf of N., dated November 23, 2020 (set out above in these Reasons – see paragraph 19 herein).

[471] Clauses 9 (initialization) and 10 (costs) of the said draft Final Order shall be amended to be in accordance with these Reasons.

[472] Lastly, before the Order made herein is finalized, and before the children are returned to Dubai, I would like to give counsel on all sides an opportunity to make further submissions, if they wish, on one specific question: to the extent that this Court may have any jurisdiction to do so, should all or some of the content of N.’s settlement proposal (dated October 30, 2020) be included in the Court Order?

[473] If any counsel wishes to address that question, s/he must contact the Superior Court trial office in Milton within seven (7) calendar days of receipt of these Reasons. Further directions will be given at that time.

Part Seven: Ancillary Issues – Initials for the Parties and the Children, and a Temporary Sealing Order

[474] Given the able closing submissions made on behalf of F., both in writing and orally, at the end of the trial, if this was an issue previously, I do not see it as a serious one now.

[475] The Court record and any rulings/decisions/judgments arising from the trial, including this one, shall use initials for the parties, “N.” and “F.”, and initials for the children, “Z.” and “E.”; Order accordingly.

[476] To effect that Order, and strictly on a temporary basis so as not to offend the open-court principle any more than absolutely necessary, the Court record shall be sealed and not be unsealed, in whole or in part, without a further order of a court of competent jurisdiction.

[477] Counsel shall speak to me, as soon as possible, about how they intend to ensure that the Court record complies with the initialization Order, and with dispatch, so that the temporary sealing Order may be lifted. To be clear, the Court staff is not responsible for that.

[478] (“Initialization” is not the proper English word to use here, but nothing else will readily and economically explain what I mean – the Order that the Court record shall use initials for the parties and the children).

[479] I thank all counsel for their help with this case. I am grateful for their assistance. I wish both parents and their two children the very best.

[480] To N. and F., I would like to say something. These children are fortunate to have you. This case is different than many others that have been decided under section 40, clause 3, in that both of you are loving, caring parents who have never mistreated, neglected, or abused in any way your children. Nor has either of you exposed the children to a home environment that is unsafe for or harmful to your children.

[481] Your marriage may be over, and each of you may have regrets as a spouse, but it is time for these children to go home. No harm will result to them. Their father is there. Their nanny is there. The JESS is there, by all accounts a first-class facility. Their lives are there. Their mother will continue to be their primary caregiver, if she sees fit to return. If she does not, then it remains the case that the children should go home.

[482] This Court has broad discretionary powers in deciding what to do under section 40. There is only one reasonable exercise of that discretion on the facts of this case, and that is to make the Order that this Court has made. That, I am sure of.

(“Original signed by”)

Conlan J.

Released: December 15, 2020

COURT FILE NO.: FS-20-51

DATE: 2020 12 15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.

Applicant

– and –

F.

Respondent

REASONS FOR JUDGMENT

Conlan J.

Released: December 15, 2020