COURT FILE NO.: FC-20-2071

DATE: 2021/11/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TARAS VOLGEMUT

Applicant

– and –

ASHLEE JANNA DECRISTOFORO

Respondent

Michael J. Stangarone, Vivian Li Merklinger and Ian Vallance, for the Applicant

Peter Hearty, for the Respondent

HEARD: Trial on October 12 to 15, 18 to 22, 25 to 27, and 29, 2021.

decision

Audet J.

[1] This case raises the single issue of whether this Court should assume jurisdiction over a (now) three-year-old child who was removed from her parents’ residence in Dubai, United Arab Emirates, by her mother in December 2020 without her father’s consent.

[2] The applicant father seeks her immediate return to Dubai, as well as various other temporary orders pursuant to s. 40 of the the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), on the basis that Ontario does not have jurisdiction over matters affecting the child. The mother takes the position that Ontario has jurisdiction to make a parenting order in relation to the child based on ss. 22(1)(b) and 23 of the CLRA.

[3] For reasons set out below, I find that this court does not have jurisdiction to make a parenting order with respect to this child. I find that she was wrongfully removed from her habitual residence in Dubai, and that she was wrongfully retained in Ontario thereafter. Based on s. 40 of the CLRA, I order that she be returned to her habitual residence in Dubai where the issue of the parenting arrangements that are in her best interest will be determined either by way of agreement between the parties, or by the Court. I decline making a temporary parenting order pursuant to s. 40 of the CLRA.

BACKGROUND

[4] The Applicant father (“Taras”) is 52 years of age. He is a Russian citizen who was born and raised in Moscow. Taras is an international businessman who has built and/or operated various business in several countries including in Russia, Africa, England, Germany and, most recently, in the United Arab Emirates (hereinafter “UAE”). He, his ex-wife and their two (now adult) children left Moscow many years ago to establish a home in England, and then in Cape Town, South Africa. Taras has also owned real estate in different countries, in including in Munich, Germany. Up until very recently, he was a director and the Chief Executive Officer of Aurum Leasing Ltd. (“Aurum Leasing”), a company based in Abu Dhabi which leases aviation and commercial shipping assets. He continues to own a 50% interest in Aurum Leasing through a 40% interest in a company called Trecastle Global Investments (“Trecastle”), and also has business interests in Botswana and in Germany. It is not disputed that Taras has access to significant wealth.

[5] Taras has two adult daughters from his prior marriage; Anastasia (26) and Ksenia (21). Taras and his ex-wife divorced in 2014 while living in Cape Town, although it appears that they may have been separated for some years before that. At the time of their divorce, Taras had been living in Cape Town for a number of years and Anastasia and Ksenia, who at the time were 18 and 13, chose to remain in his care in Cape Town.

[6] The Respondent mother (“Ashlee”) is 31 years old. She is a Canadian citizen who was born and raised in Ottawa, where most of her immediate and extended family members still reside. Ashlee was heavily involved in cheerleading in high school and in college but she stopped her college education when a modelling agency hired her and moved her to Shanghai, China, in 2011 when she was 21.

[7] Ashlee’s career took her all over the world. She lived in Shanghai for three months, returned home for a few months and then went back to Shanghai for another six months. She subsequently obtained contracts in South Korea, England, Miami, New York and Los Angeles. Each contract was for a duration of a few months and in between each contract, Ashlee would return home to Ottawa and stay with her parents for a few months.

[8] The parties met at some point in 2014 when they were 46 and 24, respectively. At the time, Ashlee was based in London and Taras was living in Cape Town with his two daughters. Their introduction to each other was arranged through a third party and after having texted each other for some time, they agreed to meet in Los Angeles. After four or five days spent together in L.A., Taras offered Ashlee to accompany him on a business trip to Botswana, and then to his home in Cape Town. Ashlee, after some hesitation, agreed.

[9] From there, the parties’ relationship developed really fast. During the year that followed, Taras would fly Ashlee to different locations around the globe every month so that they could spend time together. Then, in June 2015, Ashlee moved in with Taras and his two daughters (then 19 and 14) in his Cape Town home. From that point on, Ashlee did not seriously pursue her modelling career and instead she accompanied Taras on his business and leisure trips around the world. Though the parties were engaged, it does not appear that they ever made plans to get married.

[10] Ashlee returned to Canada for six or seven months in 2017. The parties’ evidence about whether this was a separation or not is contradictory, and for the purpose of the decision I am required to make, it is irrelevant. During that time, Taras was considering moving out of South Africa and establishing his home in a less remote, more central location. On or about the Fall of 2017, the parties agreed to stay in Munich, Germany, as a start while they considered where they would establish themselves on a more permanent basis.

[11] The parties lived in a number of apartments in Munich from the end of 2017 until February 2019. While enjoying a ski vacation in Courcheval, France, in the winter of 2018, the parties learned that Ashlee was pregnant. This was a planned pregnancy and both parties were very happy with the news that they were expecting. At the time, Taras was considering starting a company in Dubai, and they discussed moving there as a family once their child was born. I find as a fact that the parties agreed that their baby would be born in Munich, and that they would relocate to Dubai after the birth. Ashlee and Taras spent the summer 2018 in a resort in Turkey, and then they returned to Munich to await the birth of their child and make arrangements for their move to Dubai.

[12] A.N.V. was born at the end of October 2018, in Munich. At the time, Ashlee’s mother, Colleen Decristoforo (hereinafter “Colleen”) had travelled to Munich to be present for the birth of the baby and to assist in caring for her during the first few months. She stayed with the family for roughly three months, and accompanied them to Courcheval, France, where the parties spent their first Christmas and winter vacation with their newborn. In February 2019, Ashlee and Taras packed up most of their Munich belongings into a chartered plane and moved to Dubai. At first, they resided in a luxurious downtown penthouse apartment, but in late 2019 they moved into a five-bedroom, 17,000 square feet home in a much more quiet and family-friendly neighbourhood.

[13] On or about April 2019, the parties agreed that Ashlee would travel to Ottawa with A.N.V. to be with her family. At the time, Taras was starting his company (Aurum Leasing) in Dubai and he was very busy. Ashlee was homesick and she wanted her family to meet A.N.V. During the months of May to August 2019, the parties made arrangements to spend time together as a family. They spent time together at a Lake cottage in Quebec in May when Taras got to know the rest of Ashlee’s family, they spent a few weeks in Miami in early July, and a few weeks in California in August. In between each stay, Taras would return to Dubai, Moscow or wherever else his business needed him.

[14] Much will be said later in these reasons about the events that took place between August and November 2019. For the time being, suffice it to say that while the parties were in California in August 2019, they had an argument following which Ashlee left the resort with A.N.V. without notice to Taras, and spent the night at an undisclosed hotel. Despite Taras’ efforts to contact her and find out where she and A.N.V. were, Ashlee refused to take his calls until the next day, and then advised that she wanted to separate and go back to Ottawa with A.N.V. With the assistance of Colleen, with whom Taras had been in constant contact since finding out that Ashlee had disappeared with A.N.V., it was agreed that Ashlee would travel back to Ottawa with A.N.V. for a little while to cool off, seek mental health support and be with her family.

[15] Ashlee and A.N.V. ultimately returned to Dubai three months later, on November 11, 2019. During the year that followed, they did not travel very far as a family due to the COVID-19 pandemic (although they did many road trips in the UAE and in neighbouring countries), except for the summer 2020 during which they spent three months at the Six Sense Resort in Bodrum, Turkey.

[16] On or about December 11, 2020, the parties travelled to the King Fisher Resort, approximately two hours away from Dubai, to celebrate Taras’ birthday with friends and family. The events that took place that night and during the days that followed will also be discussed in much more detail later. For the time being, suffice it to say that on the night of Taras’ birthday, there was conflict between Ashely and Anastasia (Taras’ adult daughter) which degenerated into a physical altercation and resulted in the mother leaving the resort with A.N.V. without notice to Taras. He was later notified through Ashlee’s driver that she had simply returned home to Dubai with A.N.V. Unbeknownst to Taras, two days later Ashlee boarded a plane with A.N.V. headed to Ottawa. It is not disputed that Ashlee did not give Taras any notice of her intended departure with their daughter, nor did she have Taras’ consent to relocate A.N.V. – permanently or otherwise – to Ottawa.

[17] In these legal proceedings, Ashlee alleges that throughout their six-year relationship, Taras was emotionally, financially, sexually and, at times, physically abusive towards her. She states that Taras was a very controlling individual and that she was basically kept in a golden cage, without any ability to make any decisions for herself. According to Ashlee, Taras controlled the family’s finances and her access to funds, decided where they would travel, the cities they would live in, the homes they would move into and, generally, managed pretty much every detail of their day-to-day lives.

[18] Throughout these legal proceedings, Ashlee has maintained that on the day of Taras’ birthday celebration, following her confrontation with Anastasia, he dragged her down a gravel road, brutally assaulted her and left her bloody and beaten, in a torn dress, to go back to his birthday party. According to her, it is as a result of Taras’ assault upon her that night, and years of abuse suffered at his hands, that she decided to flee Dubai with A.N.V. and return to the only place in the world where she felt safe, her parents’ home in Ottawa.

[19] Taras vehemently denies that he was ever abusive towards Ashlee in any way, shape or form. Quite the contrary, he states that he was always a loving and caring partner and that he never harmed Ashlee in any way. She had full access to his credit cards which she used without restrictions, had her own car and driver with whom she was free to go as she pleased, and he covered the costs for her family members to travel in various locations worldwide to spend luxury vacations and spend time with him and Ashlee.

[20] Taras states that in fact, it was Ashlee who was the aggressor at times during their relationship. She had a temper, could fly into angry rages, and harboured significant negative feelings towards Anastasia, his adult daughter, for reasons he could not truly understand. Throughout these legal proceedings, Taras has maintained that on the night of his birthday celebration, it is Ashlee who brutally assaulted Anastasia, twice, without warning and for no apparent reason, shocking everyone present. Taras states that after the events of that night, he made sure that A.N.V. slept with him in a separate bedroom because he was so concerned about Ashlee’s behaviour. Unbeknownst to him, Ashlee came into his bedroom in the middle of the night, surreptitiously retrieved A.N.V. and returned with her to Dubai. The uncontested evidence is that when she retrieved A.N.V., Ashlee also took Taras’ cell phone with her to make sure he would not be able to contact her when he woke up and realized that A.N.V. was gone. He found out two days later, through Ashlee’s driver, that Ashlee had left Dubai with A.N.V. and was on her way to Ottawa.

[21] Within a week of Ashlee’s departure from Dubai with A.N.V., Taras filed an Application before the Ottawa Family Court seeking a declaratory order that A.N.V. had been wrongfully removed to, and was being wrongfully retained in, Ontario. He sought an order for her immediate return to her habitual residence in Dubai.

[22] In her Answer, Ashlee opposed this relief. She did not dispute that she did not have Taras’ consent to remove A.N.V. from Dubai to take her to Ontario. Initially, she also did not dispute that A.N.V.’s habitual residence at that time was in Dubai. While she acknowledged that A.N.V. was removed from her habitual place of residence without her father’s consent, she asked the court to exercise its discretion to assume jurisdiction over A.N.V. based on ss. 22(1)(b) or 23 of the CLRA. Initially, she took the position that A.N.V. would be at serious risk of harm if returned to Dubai.

[23] The events that followed have been the subject of much judicial writing contained in over two dozen decisions and endorsements written over the course of less than 10 months. I will try to concisely summarize those events here.

[24] Given the nature of this case, it quickly moved through the procedural steps otherwise mandated by the Family Law Rules, O. Reg. 114/99 to ensure a quick and expeditious determination of whether Ontario had jurisdiction to deal with the matter, and whether A.N.V. should be returned to Dubai for parenting issues to be decided in that country. Given the nature of the allegations made by Ashlee in relation to family violence, her position that A.N.V. would be at risk of harm if returned to Dubai, and Taras’ denial of those allegations, it became quickly evident that this matter could not be decided by way of motion based on written evidence, given the significant credibility issues it presented. It was agreed that the matter would proceed to trial and that the evidence in chief would be filed by way of affidavits, with a right to cross-examine viva voce.

[25] The two-week trial was originally scheduled to be heard by myself during the weeks of April 12 and 19, 2021. However, on March 18, 2021, I had to adjourn the trial because Taras amended his pleadings to raise a new issue which required Ashlee to seek additional expert evidence, and that additional evidence could not be obtained on time for the trial. The trial was adjourned to June 14, 2021, for two weeks.

[26] On the day the trial was to begin in June, Ashlee sought another adjournment. I was informed that on the Friday preceding the commencement of the trial, Ashlee’s counsel had obtained an order removing her as counsel of record. Despite everyone’s best efforts to salvage the trial, it ultimately had to be adjourned once again. It was further adjourned to October 2021, for three weeks, before myself.

[27] At the time I adjourned this trial for a second time, I made it clear that the adjournment was premised on Taras being provided with in-person parenting time with A.N.V. between then and the month of October 2021. While Taras had been having virtual parenting time with A.N.V., as ordered by the court early on in these proceedings, given A.N.V.’s very young age (she was two at the time) and Taras’ allegations of significant interference by Ashlee in his virtual parenting time, I felt it was crucial for her to have some meaningful in-person parenting time with her father until a decision was made about whether she should be returned to Dubai or not. Unfortunately, Taras could not exercise in-person parenting time with A.N.V. in Canada because despite all his efforts, including through an immigration lawyer hired by him, he had been unable to obtain a visa allowing him to enter Canada. As Ashlee was taking the position that Taras presented a serious risk of flight, and therefore any in-person parenting time could only occur in Canada, under supervision, a motion was set to be heard before me on June 28, 2021 to deal with this issue.

[28] Although she was no longer formally retained, Ashlee’s former counsel agreed to represent her for the purpose of the motion only. After having heard from both parties and read the significant affidavit material filed, on July 5, 2021 I rendered my decision by way of which I ordered Ashlee to facilitate the child’s travel to Turkey for the purpose of exercising parenting time with Taras for a period of four weeks (see Volgemut v. Decristoforo, 2021 ONSC 4750). My decision contained stringent conditions that Taras had to comply with to ensure the child’s safe return to Ottawa, and it set out detailed parameters within which the child would travel to Turkey accompanied by her mother and a family member (or anyone else chosen by the mother). Taras’ in-person parenting weeks were to occur during the months of July, August or September 2021, with all costs being covered by him.

[29] Ashlee refused to obey that order. Her request for leave to appeal my decision was denied by the Divisional Court on August 13, 2021. Throughout the months of July, August and September, multiple hearings were conducted before me in an effort to force Ashlee to comply with my July 5, 2021 Order, to no avail. After another motion heard on August 31, I concluded that Ashlee had breached several of the court orders made previously, some on consent of both parties, and that she had intentionally created the perception that she would likely comply with those orders only to breach them in the end. I concluded that her breaches were intentional, planned and wilful. While Taras had fully complied with all of the very stringent conditions imposed upon him, Ashely had made significant efforts to thwart my court orders to delay Taras’ parenting time in the hope that it would ultimately become impossible or impractical for the parenting time to occur at all (given the forthcoming trial in October).

[30] In light of the above, I concluded that the only way A.N.V. would get the opportunity to spend in-person parenting time with her father before trial (by then he had not seen her for eight months) would be to have a third party take responsibility for her transportation to and from her father’s care in Turkey. As a result, on August 31, 2021, I ordered that a third party selected and paid for by the father, namely Mr. Lloyd Vaughan of LTD & Associates Inc. and his female associate, would immediately attend at the location where A.N.V. was located, with police escort, to apprehend and travel with her to Newark Airport (New Jersey, USA), where she would be transferred to the care of her father for the purpose of traveling to Turkey. My Order also contained several other provisions meant to ensure an orderly transfer of the child from her mother’s care to her father’s care, and once again permitting the mother to travel to Turkey with another person of her choosing (at the father’s cost), to be able to spend time with her during those four weeks as originally contemplated.

[31] On the day A.N.V. was to be transferred to Mr. Vaughan, the mother absconded with her. In the context of further appearances before me, I found the mother in contempt of court and a warrant for her arrest issued, as well as a warrant for her committal until such time as she complied with my August 31, 2021 Order requiring her to transfer A.N.V. to Mr. Vaughan’s care to be transported to the Newark Airport. Ashlee was on the run with A.N.V. for two full weeks before the police force in Gatineau, Quebec[^1], finally located them on September 17 in a local hotel and apprehended the child. A.N.V. was transferred to the care of Mr. Vaughan immediately and later that day, A.N.V. was transferred to the care of her father in Newark. She was then taken to Turkey by her father, in accordance with the many orders made by the court.

[32] On September 16, the day before A.N.V.’s apprehension by the Gatineau police, the Divisional Court refused to entertain Ashlee’s request for leave to appeal my August 31, 2021 Order on the basis that she was in open defiance of court orders and was a fugitive being sought pursuant to an arrest warrant.

[33] On October 7, 2021, it was discovered that on the day of A.N.V.’s apprehension by the Gatineau Police, Ashlee had been able to successfully cancel Sasha's Canadian passport in a last attempt to preclude A.N.V. from leaving the country to be with her father. After A.N.V. was removed from her care, Ashlee contacted Passport Canada to report the potential abduction of her daughter, claiming that she did not know who had apprehended her. By the time the passport was ultimately cancelled, A.N.V. had already left for Newark.

[34] On October 14, 2021, the first day of trial, Taras brought a motion seeking an order that A.N.V. remain in his care until a final decision was made on the issue of this Court’s jurisdiction. By that time, A.N.V. had been in her father’s care for three weeks. She was scheduled to be returned to Ottawa during the weekend following the first week of trial, which was scheduled to last three weeks. For reasons set out in my unpublished decision made on October 14, 2021, I ordered that A.N.V. would remain in her father’s care, in accordance with the terms of all temporary orders made to date, until further order. This was a temporary, without prejudice order which I specifically reserved the right to vary at any point in the future until my final decision was made. I advised the parties that I undertook to release my final decision within two weeks of the end of this trial.

POSITION OF THE PARTIES

Ashlee’s position

[35] By the time the trial began, Ashlee no longer took the position that A.N.V. would be at risk of harm if returned to Dubai, other than by virtue of her being separated from her primary caregiver, the mother. It is for this very limited reason that she relied on s. 23 of the CLRA as the basis upon which this court should assume jurisdiction.

[36] Ashlee’s main position in this trial was that this court should exercise jurisdiction under s. 22(1)(b) of the CLRA, and that all six criteria contained in that provision were met, namely, that;

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

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

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

(iv) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(v) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

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

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

[37] According to Ashlee, the parties had lived a nomadic lifestyle both prior to A.N.V.'s birth, and after. In her view, the parties’ residence in Dubai was never A.N.V.’s “real home” given that she had spent very little time there since she was born. In her view, the only home A.N.V. ever had, was her own mother’s home in Ottawa, where she had built strong ties with her extended family during six months in 2019 and since December 2020.

[38] As the relationship was ending, Ashlee states that she found herself in a foreign land in which she had a residence visa based on the false reporting that she had worked for Taras’ company. As a single Christian mother in a country following Sharia law, Ashlee argued that she faced criminal sanctions for being in an unmarried relationship and since Taras controlled her ability to obtain residency status in Dubai, she faced significant risks if she remained or returned there.

[39] Against this backdrop, Ashlee took the position that there was no legal impediment to her departure from Dubai on December 13, 2020. Since A.N.V. is the child of an unmarried couple, the laws applicable in the UAE do not recognize Taras as the father nor do they give him any rights as A.N.V.’s parent. As an unmarried mother, she is the only parent recognized by the local laws and as a result, she was legally entitled to leave the country with A.N.V., without any legal requirement to obtain Taras’ consent. For that reason, there was no “wrongful” removal as understood by Canadian law, and the concept of “habitual residence” was irrelevant to the issue of jurisdiction.

Taras’ position

[40] Taras takes the position that Dubai was unquestionably A.N.V.’s habitual residence at the time she was wrongfully removed from the UAE by her mother, and that the UAE is the appropriate jurisdiction to adjudicate the merits of the parenting issues in this case.

[41] Taras disputes all of Ashlee’s allegations in relation to family violence, which he says were completely fabricated by Ashlee after the fact to justify her wrongful removal and retention of A.N.V. in Ontario. He states that December 13, 2020 was not the first time Ashlee abducted A.N.V., and points to the fact that it was not the last either, given the events of August to September 2021.

[42] Taras states that he was a loving, caring and involved father to A.N.V. throughout her short life. He argues that Ashlee is a self-absorbed, manipulative individual who has shown wanton disregard for the law and has willfully and deliberately breached multiple court orders all in an effort to keep A.N.V. away from the care of one of her primary caregivers, her father. According to Taras, neither Ashlee or A.N.V. were ever at risk of harm while in Dubai, and there is no impediment to their immediate return to that jurisdiction.

CREDIBILTY

Preliminary issue

[43] I agree with Ashlee that this trial is not about who is the better parent, nor is it about whether Ashlee should be punished for her breaches of previous court orders. This trial should have been a simple trial focussed on the issue of whether all six factors set out in s. 22(1)(b) of the CLRA had been met. Since the factors in subsections 22(1)(b)(i), (iii) and (iv) were conceded, the focus should have been strictly on whether substantial evidence concerning A.N.V.’s best interests was available in Ontario, whether she had a real and substantial connection with this province, and whether on the balance of convenience, it was appropriate for the Ontario Courts to exercise jurisdiction over her.

[44] However, this is not what happened during this trial which required three full weeks of viva voce evidence, despite the fact that all evidence in chief had been adduced by way of affidavits. There are a few reasons for this. The first one is because throughout the course of this proceeding, and until one week before the trial was set to begin, Ashlee’s main position had been that A.N.V. would be at risk of harm if returned to Dubai, in accordance with s. 23 of the CLRA, because there was significant family violence inflicted upon her by Taras, and because the laws of the UAE would not appropriately protect mother and child.

[45] Although by the time this trial began, Ashlee had changed her position and was no longer arguing that A.N.V. would be at risk of harm if returned to Dubai, other than by virtue of the fact that she would be separated from her primary caregiver, the nature of Ashlee’s allegations against Taras were such that they could simply not be left alone on account of their being somewhat irrelevant to the issue of jurisdiction. Aside from the fact that my conclusions about these allegations would have a significant impact on the parties’ credibility and on the factual findings that I would have to make on relevant issues, given the extreme circumstances of the past year, both parties felt the need to tell their side of the story on the events that led them here.

[46] Ashlee’s allegations against Taras were indeed very serious. She alleged that on the night of December 12, 2020, Taras physically assaulted her, dragged her on a gravel road and left her beaten and bloody, and fearing for her life. This last assault, according to her, coupled with Taras’ long-standing emotional, financial and sexual abuse were the reasons why she had finally fled Dubai with A.N.V. two days after the events, without notice to Taras. She maintained that she had done so because she feared for her life, and A.N.V.’s safety.

[47] At trial Ashlee testified that there had been other incidents of physical violence including one where Taras would have grabbed her by the neck and threatened to “crack her skull open like a coconut”. According to her, all aspects of her life with Taras were entirely controlled by him; her ability to remain in Dubai as an unmarried partner independent from Taras’ goodwill, her ability to access funds and to pay for expenses, where the couple would live, where they would travel, what their life would look like. She testified that she never wanted to move to Dubai but was forced to do so by Taras. She stated that Taras hired nannies to care for A.N.V. against her wishes, refused to allow her to visit her family in Canada, and for the last year of their relationship, kept her and A.N.V. hostages in Dubai.

[48] Ashlee further alleged that Taras was an absent father who was constantly away from his family for business and leisure purposes, leaving her with all parenting responsibilities for A.N.V. She claimed that whenever he happened to be home, which from her perspective was rare, Taras had limited involvement in A.N.V.’s day-to-day life and he generally prioritize his own needs, leaving A.N.V. to be cared for by the nannies. Ashlee testified that Taras was frequently abusing alcohol including, at times, on a daily basis to the extent that he would pass out on the floor. She claimed to have never really known the specifics of his business ventures, suggesting that there might be cause for concern that some of it was not legitimate. She maintained that he had unlimited financial wealth and that he would stop at nothing to get what he considered to be his, including A.N.V. Throughout this proceeding, she maintained that if I ordered the return of A.N.V. to her father’s care, she would never see her again.

[49] In his closing submissions, counsel for the mother insisted that it was not necessary for this court to make any assessment of credibility given the narrow jurisdictional question that this court was required to determine. In his view, the evidence in relation to Ashlee’s allegations above was largely irrelevant when it came to the narrow issue of this Court’s jurisdiction, and there was sufficient impartial and objective evidence before me to make findings sufficient to support my decision in relation to sections 22, 23 and 40 of the CLRA.

[50] I disagree. In the context of my assessment of whether Ontario should exercise its jurisdiction over this child pursuant to ss. 22 or 23, I am required to make findings of facts. Those findings include but are not limited to the following:

• Where was A.N.V.’s habitual residence? This question requires that I decide whether I believe Ashlee’s evidence or Taras’ evidence about the parties’ lifestyle, their intentions in relation to their move to Dubai, whether they considered Dubai as their permanent home or just another “in-between” in the context of their transient and international lifestyle, the nature and extent of their connections to Dubai as a family, and the length of time that A.N.V. resided in Dubai given that she spent most of the months of April to November 2019 in Ottawa;

• Who was A.N.V.’s primary caregiver? This is very relevant in the context of Ashlee’s position that A.N.V. would be at risk of harm if returned to Dubai under s. 23 as a result of her separation from her primary caregiver;

• Has A.N.V. been “wrongfully” removed from her habitual residence?

• Is substantial evidence concerning A.N.V.’s best interests available in Ontario, as alleged by Ashlee, or in Dubai, as alleged by Taras? This requires me to make findings in relation to the extent and nature of A.N.V.’s ties to her extended family (both maternal and paternal), to professionals involved in her life, and to her community both in Ottawa and in Dubai;

• Whether A.N.V. had, prior to her removal from Dubai, real and substantial connection to Ottawa or to Dubai, or both.

[51] Further, as I am asked by Taras to make a temporary order pursuant to s. 40 of the CLRA, regardless of the outcome of my decision on jurisdiction, it is important for me to consider what interim parenting order, if any, might be in A.N.V.’s best interests.

Assessment of the parties’ credibility

[52] Despite the history of this case, I felt it was essential for me to start on a clean slate, so to speak, when embarking upon this trial. It was important because the allegations made by Ashlee in relation to family violence were very serious and, if found to be true based on the parties’ tested evidence, it would go a very long way in explaining her desperate attempts to thwart the many orders made by this court requiring her to facilitate A.N.V.’s travel to Turkey to spend time with her father.

[53] I am fully aware of the fact that family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence.

[54] It is not a surprise that Ashlee’s counsel, in his closing submissions, argued that there was no need for me to assess the parties’ credibility and that I should only focus on the uncontested evidence which, in his view, was more than sufficient to decide the matters I was required to decide. This is because it became very clear throughout Ashlee’s and her witnesses’ testimony, that she could not be believed.

[55] Ashely’s credibility and that of her family members who testified on her behalf was severely impeached under cross examination. It became readily apparent that their evidence concerning the issues in this litigation was shaped by a common and rehearsed narrative fabricated or embellished for the purpose of supporting Ashlee’s position in this litigation. Ashlee gave wholly inconsistent and contradictory evidence. She was evasive, refused to concede basic facts, exaggerated and made outright falsehoods.

[56] In addition to her allegations that Taras was abusive, throughout her testimony she accused him of being a liar, that he had ties to shady characters and the KGB, that he was a manipulator, an alcoholic, an adulterer, a narcissist, and a monster (her own words). She made clear that A.N.V. would one day find out about this case and about her father, who is a monster. Despite claiming to be fearful of Taras, the documentary evidence demonstrated that Ashlee was in fact the aggressor, sending inflammatory and abusive communications to Taras, to A.N.V.'s nannies (who she categorically refused to allow to speak to A.N.V. during Zoom calls), to her personal driver and to other witnesses who had filed affidavits in support of Taras’ position in this litigation.

[57] Ashlee made clear in her evidence that Taras “does not deserve” to have a daughter. Her mother, Colleen, made the same comment to him in a Zoom call on September 1, 2021. During another Zoom call between Taras and A.N.V., the maternal grandfather, Frank, is seen becoming verbally abusive towards Taras, in front of A.N.V., hurling insults at him, calling him a “mother fucker” and threatening him openly. In his brief testimony, Frank was so rude and disrespectful to opposing counsel that he had to be reprimanded on two occasions and reminded that he was in a court of law and respect was not an option. Frank was evasive, refused to answer questions and claimed to not remember anything that would be adverse to Ashlee’s position (including in relation to very recent events related to Ashlee’s disappearance with A.N.V.).

[58] Whereas Ashlee’s brother, Alex, only met Taras once or twice for a few hours, back in May 2019 when A.N.V. was only a few months old, his views of Taras as a father were so extreme (he considered him to be an alcoholic, an absent and uninvolved parent and felt that A.N.V. was not safe with him in Turkey) that they completely lacked credibility. During his cross-examination he was confronted with text messages that he had sent Taras in October 2019, when Ashlee was refusing to return to Dubai with A.N.V. and asked how he could possibly reconcile the content of these exchanges with his current testimony. In his texts to Taras, Alex expresses dismay at the fact that Ashlee was not yet back to Dubai with A.N.V. and states that Ashlee’s decision is “not right at all”, and that “she’s got issues to deal with”. In his testimony, Alex refused to even acknowledge that his text messages were sent to Taras, constantly repeating that since you could not see Taras’ name on the print-out, only a phone number, these texts could have been sent to anyone. Alex was not a credible witness at all.

[59] Colleen’s evidence also completely lacked credibility. During her testimony she maintained that she was very worried for Ashlee from the beginning of her relationship with Taras because of the age difference, the control he exerted over every aspects of her life, his drinking and his smoking. In her cross-examination Colleen was called upon to review the many texts exchanged between her and Taras over the years, and more specifically after A.N.V. was born. While claiming during this trial that Taras was an absent and uncaring father and partner with alcohol addictions and poor parenting skills, her communications with Taras during the months of August to October 2019 – when Ashlee was refusing to return to Dubai with A.N.V. – demonstrate unequivocally that she deployed significant efforts to try and reconcile their relationship. In those exchanges, she acknowledged that Ashlee needed counselling, something she tried to arrange for her in consultation with Taras.

[60] Colleen’s evidence with regards to her role within her husband’s construction company, her alleged lack of knowledge about the extent of her husband’s very lengthy criminal record (including several assaults some of which resulted in jail time), his two bankruptcies, and the litigation initiated against both of them by Frank’s elderly aunt in which they were found to have defrauded her of half a million dollars while Frank was acting as her Power of Attorney, was also simply not believable.

[61] In addition to all this, both Frank and Colleen denied having supported Ashlee’s efforts to thwart this Court’s orders or to have assisted her when she absconded with A.N.V. in September 2021. However, the evidence before me makes it clear that they were complicit in Ashlee’s efforts to evade the police, and that they helped hide her in various places in the Outaouais Region, Frank likely more than Colleen.

[62] As stated earlier, Ashlee was also not a credible witness. She was impeached several times under cross examination, appeared to anticipate questions, sought to tailor her evidence, refused to answer basic questions, exaggerated, and generally used the “he beat me up and dragged me down a gravel road” answer to just about any question. She expressed on several occasions that Taras’ decision to bring this Court Application was “absurd”, and that a good father would have tried to work it out with her instead of filing a court proceeding (while at the same time acknowledging the if he had, he would not have been able to convince her to return to Dubai). Ashlee’s complete lack of insight into the impact of her own actions on A.N.V., and her complete refusal to acknowledge any responsibility at all for the events of December 11, 2020, or those that followed, had a significantly negative impact on her credibility and reflected very poorly on her parenting abilities.

[63] Examples of Ashlee’s incredible evidence and contradictions include but are not limited to the following:

• While she claimed that Taras’ assault upon her on the night of December 11, 2020 had let her “bruised and bloody”, that she was so sore upon her arrival at the Toronto Airport two days later that she could barely walk, and that she had limited resources and nowhere to go in Dubai and therefore had no other choice but to fly to Canada, this narrative was directly contradicted by Ashlee's bank account statements which showed her making large purchases for designer clothing in local stores in the days immediately following the alleged assault upon her on December 11, 2021;

• During her testimony Ashlee claimed that she had no contact with her mother Colleen between September 3, 2021 until September 17, 2021, the two weeks during which she ran away with A.N.V. Her testimony was clearly conflicted by Colleen’s own testimony given under oath on September 10, 2021 (in the context of an examination under oath conducted before London-Weinsten J. for the purpose of locating Ashlee and A.N.V.) during which she stated that she spoke with Ashlee on the phone on September 6, 2021 and on September 8, 2021. Colleen reaffirmed her previous evidence under cross examination during this trial;

• During her testimony Ashlee stated that she had personally retained possession of the original German notarized copies of both the Acknowledgment of Paternity and the Joint Custody Declaration (more will be said about these later) after they were signed by her and Taras on November 8, 2021. She explained that she brought these documents with her from Germany to Dubai and then took them to from Dubai to Canada in April 2019 and deposited them at her parent's home in Manotick, along with other important documents. However, this is in direct contrast to the evidence she gave at paragraph 22 of her affidavit sworn April 15, 2021 in which she stated "I had not seen the German documents since I signed them in Germany over 2 years ago ... " and that " ... Until Taras produced them I had no recollection of them ... ". When reminded during her cross-examination that she had previously been requested to provide them with the original copies of the Acknowledgment of Paternity and Joint Custody Agreement, and asked why she did not retrieve them from storage, Ashlee replied, "Why would I? I'm not going through a huge storage unit";

• During her testimony Ashlee claimed that Taras was financially abusive to her throughout their relationship, that he did not permit her to buy furniture for their homes and for A.N.V., that he only gave her money for groceries and basic household items, and that she never had access to Taras' credit cards. Despite this, at paragraph 8 of her affidavit dated March 16, 2021, she states that during their "six-year relationship" she had "full access to Taras' credit cards", which she was "permitted to use without limit". When counsel questioned Ashlee about this in cross-examination, Ashlee claimed that this was a "typo" and that she had access to Taras' debit cards, not his credit cards. The overwhelming evidence before me, including text exchanges between the parties, demonstrate that Ashlee had unlimited access to cash;

• While Ashlee claims to have respected Doyle J.’s temporary order requiring her to facilitate daily Zoom calls between A.N.V. and her father, the evidence before me makes it clear that while she may have followed the court order reasonably well at the beginning, she very quickly began to frustrate those calls by terminating them arbitrarily, by forcing A.N.V. to remain in a small tent in the backyard throughout the duration of the call (including during very hot summer days), and by behaving in ways that were either traumatic to A.N.V. or emotionally damaging to her. For instance, during one particular Zoom call, A.N.V. can be seen crying because her mother is crying, and when Taras tries to soothe her, Ashlee can be heard saying “he doesn’t care A.N.V.!, he doesn’t care about anything!”. In another Zoom call, Ashlee is playing a CTV News report about these proceedings in front of A.N.V., for Taras to hear. Ashlee’s attempts at trial to explain that this was an accident, and that A.N.V. had fallen on the computer accidentally turning the volume up, were simply unbelievable, and not supported by what could clearly be seen on the video replay;

• While she professed throughout this litigation that she felt it was important for A.N.V. to have a relationship and regular contact with her father, Ashlee’s conduct throughout this proceeding and the evidence she led during the trial tell a very different story. During her testimony, Ashlee stated that she did not believe Taras to be a good parent, and that in her view A.N.V. was at risk of harm in his care. This statement not only contradicts her stated position throughout, it clearly contradicts the letter sent by Ashlee's former counsel to Taras’ counsel on April 13, 2021 in which she states clearly that Ashlee has no concerns about A.N.V.'s safety while in Taras' care;

• During her testimony, Ashlee described five incidents in which she alleged that Taras had physically abused her. At least three of these incidents had never been raised in any of Ashlee's previous sworn evidence.

[64] To be blunt, as this litigation proceeded, Ashlee’s allegations against Taras intensified and became more and more serious. In the end, there were so many discrepancies, contradictions and exaggerations in her and family members’ testimony that it became evident that their testimony could be given very little weight.

[65] In contrast, Taras gave detailed, straightforward and credible evidence. His evidence was not shaken under cross examination on the issues relevant to this trial. Aside from his denials of having ever used the Tinder platform (a dating website) in the Fall of 2019, which were contradicted by his bank statements for October and November 2019 confirming regular purchases on this website during those months, I find that Taras’ evidence in relation to his relationship with Ashlee, his role as a father, and the events that transpired during the parties’ relationship was consistent with the balance of the evidence adduced during this trial. Taras gave convincing evidence to contradict the onslaught of allegations made against him of physical, mental, financial and sexual abuse. He gave clear evidence concerning the incident of December 11, 2020, which was supported by objective third party witnesses that Ashlee chose not to cross-examine. The many witnesses who testified on his behalf provided an equally balanced and non-partisan testimony which supported Taras’ evidence, including friends of the family, the parties’ two nannies and their two drivers – including Ashlee’s own driver – and people who saw this family on a regular basis in Dubai and elsewhere.

[66] More importantly, Taras did not attempt to present Ashlee in the worst possible light in an attempt to booster his own position in this trial. His evidence was balanced and fair. He readily admitted Ashlee’s positive attributes as a parent when this was warranted, and he acknowledged responsibility on certain things when same was warranted. He did not try to downplay Ashlee’s role as a primary caregiver to A.N.V. for the purpose of bolstering his own status as a primary caregiver. Although he was clearly hurt by the evidence presented by Ashlee’s family members, who were prepared to provide deceitful testimony to support Ashlee’s position in the litigation (and in particular Colleen whom he considered to be a second mother to him), Taras did not fall into the trap of reciprocating in kind. He acknowledged Colleen’s significant support after A.N.V.’s birth, readily admitted that he felt they had a great relationship, admitted that he was not sure whether he would ever be able to trust her again given her behavior and attitude towards him over the past months, and expressed his sadness about the loss of that relationship.

[67] Of significant importance in assessing credibility, is the fact that Taras followed all orders made by this court in the context of this litigation, despite taking the position that Ontario does not have jurisdiction over A.N.V. Of even more significance is the fact that Taras fully complied with his court-ordered obligation to ensure one Zoom call of one hour in duration every day between A.N.V. and her mother, since she has been in his care. It was not disputed that most days, Taras has facilitated more than one Zoom call between A.N.V. and her mother.

[68] For all of the above reasons, whenever Ashlee’s evidence contradicted Taras’ evidence, Taras’ evidence was preferred.

FINDINGS OF FACTS RELATED TO THE BACKGROUND

[69] Based on all of the evidence before me, I come to the following factual findings which are relevant to the legal issues I am required to decide, but which also give context to the decision that I am asked to make.

[70] At the time they met, Ashlee and Taras were both knowledgeable international travellers who knew their way around the globe. The parties lived a lavish lifestyle provided by Taras as the family’s sole breadwinner, and their lifestyle included extensive travel throughout the world at exclusive and luxurious hotels, spacious short-term and long-term rentals and residences in upscale neighborhoods, summer and winter vacations at sumptuous resorts, and hired household staff (including drivers, nannies, housekeepers, personal trainers and tutors).

[71] Ashlee and Taras were in a committed relationship for six years. It is clear that during those six years, with or without Taras’ knowledge, Ashlee has at times reconsidered her commitment to this relationship. In April 2017, while the parties were living in Cape Town, Ashlee returned to Canada for a period of approximately four to six months. Although the parties continued to meet at various locations to spend time together during those months, I accept that Ashlee may have contemplated a separation for a short while. But by the time she returned to Germany in the Fall of 2017, the parties were making plans to have a baby together.

[72] Ashlee contemplated another separation during the months of August 2019 to November 2019. The events that led to this were the subject of much evidence during this trial. As stated earlier, the parties moved to Dubai in February 2019. At the time, Taras was building Aurum Leasing from the ground up and this was a very busy time for him work-wise. Ashlee felt homesick and wanted her family to meet A.N.V., so the parties agreed that Ashlee would travel to Ottawa with A.N.V. to stay with her family for a couple of months. During the months of April to August, 2019, Taras travelled to Canada and the United States to spend time with Ashlee and A.N.V. They rented a cottage in Quebec where they stayed for a week or two; they spent two weeks in Miami in July and they spent several weeks together in California in August.

[73] On or about August 23, 2019, while in California, Ashlee and Taras had an argument following which Ashlee locked herself in their bedroom, taking A.N.V. with her. Preferring to give her time to cool down, Taras slept in another bedroom. Later that night, Taras discovered that Ashlee and A.N.V. were gone. Ashlee had not told Taras where she was going, nor had she told her mother Colleen. Despite Taras’ and Colleen’s efforts to locate her that night, Ashlee refused to answer her phone. The next day, she was finally in touch and advised that she wanted to return to Ottawa with A.N.V. After lengthy discussions between Colleen and Taras, they agreed that it would be best for Ashlee to return to Ottawa with A.N.V. for a little while to cool off and to work out her issues.

[74] I find as a fact that both Colleen and Taras agreed at that time that Ashlee needed mental health support, and Colleen had undertaken to find her a good counsellor in Ottawa and to support her in accessing those services. It is important to note that when she left the villa where the family was staying in California, Ashlee took Taras’ passport and wallet with her, and she meticulously planned their return to Taras in pieces over the next three days, leaving parts of them at different hotels for him to retrieve later.

[75] From the end of August to November 7, 2019, Taras was in constant contact with both Ashlee and Colleen, and desperately attempted to get Ashlee to return to Dubai with A.N.V., to no avail. This is when Alex wrote to him expressing disbelief that Ashlee was not yet back home in Dubai and opined that she had “issues to deal with”.

[76] I find as a fact that during those months, Ashlee gave many false promises and false commitments to Taras to return to Dubai with A.N.V., while having no intention to follow through. In early September 2019, she asked Taras to come pick her and A.N.V. up to bring them back to Dubai. Taras immediately cancelled important events he was required to attend in relation to the launch of Aurum Leasing to travel to Ottawa where he would spend a few days in a hotel with Ashlee and A.N.V., after which the entire family would be flying back to Dubai. Until it was time to leave for the airport, Ashlee acted as if she had every intention to leave, only to tell Taras a few hours before their scheduled departure that she had changed her mind. After heated discussions between the parties, in which Colleen was involved, Ashlee refused to depart and Taras was forced to return to Dubai on his own.

[77] On another occasion a few weeks later, Ashlee told Taras once again that she wanted to go back home to Dubai. Taras chartered a private jet to take Ashlee and A.N.V. back to Dubai, but on the day they were set to return, Ashlee failed to show up at the airport, alleging that the weather had precluded her from getting there on time. Finally, on November 7, Ashlee and A.N.V. travelled to New York to meet Taras there. They finally arrived in Dubai three days later, on November 11, 2019. I find as a fact based on the evidence before me that from September to November 11, 2019, Ashlee did not have Taras’ consent to withhold A.N.V. in Ottawa.

[78] From November 11, 2019 to December 13, 2020, the parties continued to reside together in Dubai with A.N.V., taking many weekend trips to locations that could be accessed by car (in light of the pandemic), and spending the summer of 2020 at a resort in Turkey.

[79] In light of the events which took place between August and November 2019, it is easy to understand that Taras did not linger very long after he learned that Ashlee had left the country with A.N.V. to initiate an Application seeking her immediate return to Dubai. In his testimony, Taras explained that the events of the Fall 2019 had left such deep scars in him that he was not prepared to go through the same ordeal again. He wanted A.N.V. back to her home in Dubai, without delay.

[80] Although Ashlee claimed to be a victim of abuse held in a golden cage against her will, the evidence before me revealed that she was a free individual who chose the life that she wanted to live. I find that Ashlee was never in danger and that she did not fear Taras at all (at least not before she absconded with A.N.V. on December 13, 2020). I find that Ashlee enjoyed the lifestyle that she shared with Taras, and that she was a free participant in all of the endeavours that brought them to various places around the world, and which eventually brought them to Dubai in February 2019.

[81] During their relationship, Ashlee had access to unlimited funds which she could use as she wished, and to staff including a personal driver who was free to take her wherever she wished. While in Dubai, Taras gave to Ashlee the first $50,000 payment he received as a director of Aurum Leasing, and he re-directed to her bank account all fees received by him as a director of this company (roughly $1,500 CAN per month). Ashlee was free to use those funds as she pleased, without the need to account for how she used them. All of the family’s expenses were paid for by Taras.

[82] Taras also purchased a $150,000 Lexus for her, which was put in her own name, and Ashlee hired her own personal driver which she paid for herself, and who took his instructions directly from her. While the evidence reveals that Ashlee was not fully supportive of Taras’ desire to hire live-in nannies to assist with caring for A.N.V. after she was born, the evidence presented during this trial confirms that she ultimately accepted their presence and made use of their assistance whenever she needed it. While in Dubai, she also attended tennis, Pilates, and other activities and she had her own Italian tutor. Ashlee also had a personal trainer, and Taras' travel agent was available to her to book her own flights. Ashlee was also able to book her own flights and to leave the country without Taras’ permission, including with A.N.V. as demonstrated by her ability to do so on December 13, 2020, and as confirmed by mutual Powers of Attorney signed by the parties in Germany shortly after A.N.V.’s birth allowing each of them to travel freely around the world with A.N.V. without the other’s consent.

[83] Although I have no difficulty accepting that Taras could be controlling at times (although this is not how he presented at trial), this does not make him an abuser. The evidence before me supports a finding that Taras was “in charge”, in the sense that he was the person who was primarily responsible for initiating and making all arrangements related to the parties’ many moves from one location to the other (finding proper accommodations for the family, making arrangements for licences, visas and residency permits and hiring staff). Although he took care of things, I find that he consulted with Ashlee on these arrangements and she was not left without a voice in the process, as she claims. I find that most of the time, Ashlee was happy to let Taras take care of things.

[84] I also find as a fact that Taras did not abuse Ashlee mentally, financially or physically as she alleges. There was no evidence whatsoever adduced during this trial to substantiate in any way Ashlee’s allegations that she was sexually abused by Taras. Whereas Ashlee’s texts and emails (to Taras, his witnesses and his counsel) were filled with anger, aggression and abusive language, none of the written communication from Taras to Ashlee, her family members or anyone else involved in this litigation ever contained a shred of abusive language.

[85] I find as a fact that it is Ashlee, and not Taras, who struggles with her ability to manage her anger and her emotions. I also find as a fact that on the night of Taras’ birthday on December 11, 2020, Ashlee was not brutally assaulted by Taras as she alleges; it was Ashlee who committed a serious physical assault on Anastasia, Taras’ adult daughter.

[86] The events of that night were the subject of much evidence during this trial, whether relevant to the issues to be decided in this proceeding or not. Ashlee’s version of what took place that night is simply not credible. Not only is it not supported by any credible and/or objective evidence, it is in clear contrast to significant objective and reliable evidence that depicts a very different story.

[87] On the morning of December 11, 2020, Taras and Ashlee travelled with A.N.V. to the Kingfisher Retreat, which is two hours outside of Dubai, and where they were to stay for a few days with friends and family to celebrate Taras’ birthday. Ashlee and Anastasia, Taras’ adult daughter, have never gotten along. There appears to be some very strong animosity between them and Ashlee made it clear to Taras from very early on that she did not want Anastasia around her or A.N.V. In a text message to Taras earlier that year, Ashlee even suggested that one day they would get in a physical fight. The very tense relationship between Ashlee and Anastasia was a source of significant tension between Ashlee and Taras, who tried to impress upon her that Anastasia was his daughter and that he would not sever that relationship no matter how much she asked him to. The tension seemed to heighten when Anastasia, her partner and their child moved from Cape Town to Dubai to remain in close proximity to Taras.

[88] On the night of December 11, during Taras’ birthday dinner, Anastasia and her partner were present at the table, as well as Stephanie Sebjornsen and her husband, Atle, who are friends of Taras’. At some point during the dinner, Ashlee started directing rude comments towards Anastasia and later became verbally abusive to her. This caused Ms. Sebjornsen to take Ashlee out for a walk on the beach to calm her down, and impress upon her that this was Taras’ birthday and that she needed to stop that behaviour. She was able to get Ashlee to agree to apologize to Anastasia and they went back inside to join the dinner party. However, shortly after Ashlee re-entered the room, she walked over to Anastasia, grabbed her by the hair and dragged her to the ground pulling her across the floor still holding onto her hair. She started scratching, kicking and punching at Anastasia and everyone got out of their chair to physically separate the two.

[89] In her testimony, Ashlee admitted that she was the one who attacked Anastasia first, by pulling her hair from behind, although she minimized the seriousness of her aggression and alleged that it was Anastasia who kicked her in the stomach first (as they both fell to the floor). In any event, shocked by what he had just witnessed, Taras pulled Ashlee out of the dinning room to walk her back to her room. While walking back to their room, Anastasia in tow, Ashlee once again threw herself onto Anastasia and assaulted her again, requiring Taras to more forcibly separate them and restrain Ashlee from jumping on Anastasia again.

[90] The above version of the facts is based on significantly reliable evidence, which includes the very credible testimony of Ms. Sebjornsen, which Ashlee chose not to cross-examine, as well as dozens of pictures of the serious injuries suffered by Anastasia that night (severe bruising all over her body and a patch of hair pulled out of her skull). But in addition to the above, Ashlee’s version of what happened that night, where she claims to have been brutally assaulted by Taras and dragged on a gravel road leaving her bloody and beaten, is completed contradicted by the evidence, including her own contradictory evidence, the testimony of her driver Shaji Raveendran (who picked her and A.N.V. up that night to drive them back to Dubai), by the events that unfolded between December 11 and December 13, the day Ashlee left Dubai with A.N.V., and by Ashlee’s complete inability to present any evidence at all of her alleged “severe injuries” despite having had ample opportunities to collect such evidence.

[91] I accept that Ashlee fled Dubai on December 13, 2020 because she was afraid for her life. But the source of that fear was not Taras. What drove Ashlee out of Dubai was her fear of the severe consequences that might flow from her brutal assault on Anastasia, and in particular those she could face if Anastasia decided to press criminal charges against her, in a country where criminal acts are severely punished.

[92] Now back to the legal issues that I am required to decide.

LEGAL FRAMEWORK

[93] Sections 22 and 23 of the CLRA provide that Ontario courts may exercise jurisdiction over a child who is not habitually resident in Ontario if certain criteria are met. Section 22 of the CLRA reads as follows:

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

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

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

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

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

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

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

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6.

Habitual residence

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. If 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.

3. With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.

Abduction

(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to 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.

[94] It is not disputed that A.N.V. was not habitually resident in Ontario at the time she was brought here by her mother. Therefore, the relevant part of s. 22 in this case is subsection (b). It is also not disputed that subsections 22(1)(b)(i), (iii) and (iv) above are met in this case. Therefore, the question to be decided by me is whether subsections (ii) “substantial evidence”, (v) “real and substantial connection” and (vi) “balance of convenience” are met.

[95] Alternatively, Ashlee takes the position that she was A.N.V.’s primary caregiver throughout her life. Since she has made it clear that she will not return to Dubai even if A.N.V.’s return in that country is ordered by the court, such an order is bound to cause her serious harm as defined in section 23 of the CLRA. That section reads as follows:

Serious harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(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 with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[96] It is important when conducting an analysis under ss. 22 and 23 of the CLRA to keep in mind the purposes that these provisions are intended to serve. They are articulated in section 19 of the Act as follows:

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.

[97] The legal principles applicable to the analysis required under s. 22 and 23 of the CLRA have been most recently set out at length by Conlan J. in N. v. F., 2020 ONSC 7789, and subsequently confirmed by a majority of the Ontario Court of Appeal in its decision reported at 2021 ONCA 614. Before considering whether to assume jurisdiction pursuant to s. 22 of the CLRA, the court must bear in mind the public policy purposes underlying that section. In Ojeikere v. Ojeikere, 2018 ONCA 372, the Ontario Court of Appeal stated:

[13] All four provisions are found in Part III of the CLRA. Section 19 sets out the overall purposes of Part III. 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 CanLII 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) 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. [Footnotes omitted.]

[98] For the court to assume jurisdiction, all six criteria set out in s. 22(1)(b) must be met (Murray v. Ceruti, 2014 ONCA 679 at para. 24).

[99] In this case, since A.N.V. is physically present in Ontario, I am also permitted under s. 23(1) of the CLRA to exercise my discretion over parenting matters related to her if I am satisfied, on a balance of probabilities, that A.N.V. would suffer “serious harm” if she was returned to Dubai. In N. v. F., 2021 ONCA 614, the Court of Appeal summarized the legal principles applicable to the exercise of this discretion as follows:

[52] A trial judge’s exercise of s. 23 is discretionary. In Ojeikere, at para. 64, Laskin J.A. provided a list of potentially relevant factors that a court could use to determine whether a child will suffer serious harm. He considered: (1) the risk of physical harm; (2) the risk of psychological harm; (3) the views of the children; and (4) the mother’s claim that she would not return to her home country, even if the children were required to do so.

ANALYSIS

[Section 22](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html#sec22_smooth) of the [CLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)

A.N.V.’s habitual residence

[100] The caselaw is clear that the parents’ conduct post-removal is not relevant in the context of the Court’s determination of the children’s habitual residence as defined by s. 22(1)(b) of the CLRA (see Ellis v. Wentzell-Ellis, 2010 ONCA 347, paras. 27, 30-35).

[101] At the time A.N.V. was brought to Ottawa by Ashlee in December 2020, her habitual residence was Dubai, in the UAE. The evidence led at trial overwhelmingly demonstrates that the parties jointly decided to relocate as a family shortly after A.N.V. was born from Munich to Dubai in February 2019. The evidence led at trial confirms that the parties effected that joint plan and in fact moved to and lived together as a family with A.N.V. in Dubai from February 2019 to December 2020. Their belongings, furniture, A.N.V.'s furniture, Taras' employment, their dogs, A.N.V.'s doctor, A.N.V.'s two live-in nannies, and A.N.V.'s activities were all located in Dubai. This is where Anastasia, her partner and her child chose to move to as well, because that was Taras’ new domicile.

[102] While the parties continued to live an international lifestyle once they moved to Dubai, and even though they travelled together as a family to such places as Ottawa, the Maldives, Turkey, Azerbaijan and Oman, their ordinary residence, their “real home”, was in Dubai where they were living together as a family with A.N.V. Despite their frequent moves from one place to another, the parties did not live a nomadic lifestyle and they were not “gypsies”, as alleged by Ashlee. Their first “real home” was in Cape Town, then in Munich, and then in Dubai, where eventually they moved to a beautiful villa on a golf course with an outdoor pool and staff. They all had residency status there and always returned home to Dubai after their travels. The UAE was where Taras' business was located and where he worked. This is where A.N.V. and the parties had their many activities, where the parties’ staff lived with them while working for them, where they housed their dogs, and where their service providers were located.

[103] A.N.V. was six months old when she travelled to Ottawa with her mother to meet her maternal family in April 2019. During the first three months of her stay there, Taras travelled on three occasions to America to spend weeks with her and Ashlee. From September 2019 to November 2019, Taras did not consent to A.N.V. remaining in Ottawa with her mother and made significant efforts to have her returned to Dubai. Those extra three months spent in Ottawa against her father’s will have not displaced A.N.V.’s habitual residence from Dubai to Ottawa.

[104] A.N.V. moved back to Dubai on November 11, 2020 and remained there with her parents for the 13 months that followed, except for the summer months during which they vacationed in Bodrum, Turkey. Her habitual residence at the time of her removal to Ottawa by her mother was, unquestionably, in Dubai.

Wrongful removal

[105] Ashlee takes the position that she did not wrongfully remove A.N.V. from Dubai, because pursuant to the laws of the UAE, there was no legal impediment to her leaving with A.N.V. in December 2020.

[106] Significant expert evidence was led by both parties to prove the legal principles applicable in the UAE in relation to parenting and other relevant issues. Although more will be said later in these reasons on the laws in the UAE, for the moment it is important to note the following. The two legal experts who testified during this trial both agreed that in the UAE, a couple’s status as a married or unmarried makes a significant difference in how the laws related to parenting apply to them.

[107] Although there are now exceptions to that rule as it applies to non UAE nationals, when a child is born outside of marriage in the UAE, the father has no legal status as a parent and as such, he has no rights towards the child. The mother is the only recognized parent and therefore, she is automatically granted guardianship (which is akin to decision-making authority) and physical custody (akin to primary physical care) of the child. As the only recognized parent to the child, the mother is free to leave the country without the consent of the child’s biological father. Ashlee argues that, since she and Taras were not married, and thus Taras was not a legally recognized parent to her, she was permitted pursuant to UAE laws to leave the country with A.N.V. without Taras’ consent. Consequently, A.N.V.’s removal was not “wrongful” within the meaning of UAE laws.

[108] I will explain later why I disagree with Ashlee’s position that UAE laws do not recognize Taras as a father. But even if Ashlee was correct in her submission with regards to UAE laws, in my view her reasoning above is still incorrect. Ashlee is asking the Ontario courts to take jurisdiction over matters pertaining to A.N.V. based on the laws applicable in Ontario, namely, the CLRA. It is pursuant to the CLRA that this Court must determine whether it may exercise its jurisdiction to hear the matter. The principles set out in the CLRA, not in the laws of the UAE, must inform this Court’s analysis as to whether it is permitted to exercise its jurisdiction over A.N.V. The concept of a child’s “wrongful removal” from her habitual residence is a concept that is defined by the CLRA, regardless of whether UAE laws would provide differently.

[109] There is no question that Ashlee wrongfully removed A.N.V. from her habitual residence in Dubai, as defined by ss. 22(3) and 40 of the CLRA. Up until the beginning of this trial, this point had been conceded by Ashlee.

A.N.V.’s primary caregiver

[110] I accept that since A.N.V. was born, and until the time of her wrongful removal from Dubai, Ashlee had been her primary caregiver. Taras, as the family’s sole breadwinner, was required to travel frequently and, when he was home, he was required to work most weekdays. Ashlee did not work outside of the home and as a result, was home most of the time with A.N.V.

[111] This said, the fact that Taras travelled frequently for business purposes does not lead to a conclusion that he was an absent parent. Quite the contrary, as his own boss he enjoyed a very flexible work schedule allowing him to take frequent and lengthy vacations with his family. He was home on the weekend and I accept that when he was home, his focus was A.N.V. I do not accept Ashlee’s and her family members’ allegations that Taras was an absent and disinterested parent with poor parenting skills who “did his own thing”.

[112] The evidence before me demonstrates that Taras was a very involved parent who made his child and family his priority whenever he was not working. Much evidence was presented at trial in relation to the parties’ day-to-day life while living in Dubai from February 2019 to December 2020, including during their many short road trips and longer vacations at various locations including in the UAE and neighbouring countries, Miami and California, Turkey and Canada.

[113] That evidence was not only provided by the parties themselves, but also from the many people who surrounded them or had an opportunity to observe them in their day-to-day life in Dubai; their two live-in nannies who rotated shifts every couple of months so that there would always be one present with the family; their two drivers who spent every day with them whether they were driving them to places or not; Maxim Kasatkin, Taras’ friend and business partner who resided in Austria with his family but stayed with the parties in Dubai every month for days (and sometimes weeks) to work at Aurum Leasing (he was so frequently there he had his own room in their home); Taras’ personal trainer who during the pandemic went to the parties’ home everyday; as well as other witnesses who regularly spent time with them at home or on vacation.

[114] All of those witnesses observed the same routine at home, with Taras being primarily responsible for A.N.V. from the moment she woke up until he went to work (feeding her breakfast, going to the park, for a walk or swimming the pool), with the nanny caring for her until Ashlee came downstairs later in the morning and taking over, and with both parties caring for her upon Taras’ return from work in the evening. Taras was almost exclusively responsible for giving A.N.V. a bath every night and putting her to bed (except when he was away). While on vacation Taras was as involved in caring for A.N.V. then Ashlee was. A review of the video which captured Taras’ reunion with A.N.V. after not having seen each other in person for almost nine months (at the Newark Airport) compellingly demonstrates the close and loving bond that A.N.V. and her father shared.

[115] My finding that Taras was a very involved and hands-on parent is not intended to diminish in any way Ashlee’s role as a parent to her. A.N.V. had two caring parents when living in Dubai. Ashlee was her primary caregiver because A.N.V. was in her full-time care when Taras was working or away on business. While Ashlee’s behavior on December 11, 2020 and the decisions she made throughout the course of this proceeding give me significant pause about her ability to put A.N.V.’s best interest ahead of her own, there is no evidence before me that would suggest that Ashlee provided anything but competent day-to-day care to A.N.V. while living in Dubai. A.N.V. certainly shares a close and loving bond with her mother, as she does with her father.

Substantial evidence concerning A.N.V.’s best interests in Ontario vs. Dubai

[116] The test of evidence being “substantially available” in one jurisdiction is not a relative test; there does not have to be more evidence available in one jurisdiction than in another provided that there is substantial evidence available in either location. In addition, the question is not where relevant witnesses currently reside, but whether their evidence could be made available in either jurisdiction (see Hibbert v. Escano, 2010 ONSC 1445, at para. 69).

[117] In Ottawa, the relevant evidence in relation to A.N.V.’s best interest is limited to Ashlee’s family members, most of whom (except for Colleen) only got to know A.N.V. well after she was wrongfully removed to Ottawa by her mother. In Dubai, there are many witnesses, aside from family members (Anastasia and her partner), who got to see and interact with A.N.V. and her parents, many of them on a daily basis; A.N.V.’s two nannies, the parties’ drivers and housekeeper, Maxim and other friends with whom Ashlee and Taras would travel or spend time. A.N.V. had a doctor in Dubai (the parties found a German-speaking physician to ensure (s)he could read A.N.V.’s medical records from Germany). A.N.V. was also involved in activities in Dubai; she attended ballet classes, swimming, baby yoga and other activities for children.

[118] To support her position that substantial evidence related to A.N.V.’s best interest is available in Ontario, Ashlee points to the fact that not one of the many witnesses who testified during this trial gave their evidence from Dubai. Not only is this not accurate (Anastasia and her partner, Stephanie Sebjornsen and her husband (friends), Kris Ray (trainer) and the parties’ two drivers still live in Dubai), but for many of those witnesses (Taras, Ashlee, Sacha’s nannies), this situation is temporary and was forced upon them as a result of A.N.V.’s wrongful removal by her mother.

[119] While I acknowledge that there is relevant evidence available in Ontario in relation to A.N.V.’s best interest, in my view there is more substantial evidence available in Dubai, where A.N.V. had her habitual residence before her wrongful removal. Like in the case of Nordin v. Nordin, 2001 CanLII 28199 (ONSC), Ashlee claims that A.N.V.’s aunts, uncles, grandparents and cousins are in Ontario, that A.N.V. visited these relatives almost daily throughout the summer of 2019 and since December 2020, and that because of the various places A.N.V. lived, Ontario is the only “constant” in her life and, therefore, has the best evidence.

[120] As Jarvis J. did in Nordin, supra (at paras. 8-10), I hold the view that “independent” witnesses are often the deciding factors in these cases, and that the court prefers to look for non-aligned witnesses who can give the court an objective view of the child. What is most helpful is evidence that can show a view of the child's day-to-day life, her interests, and her relationship with both parents while living as a family. In my view, substantial and independent evidence in this case is available in Dubai.

The law in the UAE

[121] As stated earlier, both parties adduced significant expert evidence during this trial to establish the legal principles applicable in the UAE in relation to filiation, parenting and residency status. At the time of trial, I expressed concerns about the relevance of that evidence given the issues I had to decide. It was the parties’ submission that although only peripherally relevant, the expert opinion evidence was nonetheless relevant to my consideration of the “real and substantial” and “balance of convenience” tests under s. 22(1)(b), of whether A.N.V. would be at risk of harm if separated from her primary caregiver under s. 23, and to my decision as to whether an order under s. 40 should be made.

[122] As stated earlier, Ashlee is no longer taking the position that A.N.V. would be at risk of harm if returned to Dubai. This being said, she continues to maintain that she (Ashlee) would be at risk of harm if she were to return to Dubai because of Taras’ alleged abuse towards her, and also because the legal system in the UAE, which is based on Sharia law, is discriminatory to women and would put her – the mother – at a disadvantage. Ashlee further argues that she would be unable to obtain a residency visa in Dubai, other than through Taras, which would place her in a precarious situation and vulnerable to Taras’ goodwill in maintaining this status. Based on all this, she states that she cannot safely return to Dubai. Therefore, if this Court orders A.N.V.’s return to Dubai, she will be separated from her primary caregiver and, as a result, suffer emotional harm as contemplated by s. 23 of the CLRA.

[123] For all those reasons, it is relevant to set out my findings with regards to the laws applicable in the UAE to such matters.

[124] Two experts delivered opinion evidence as to the statutory scheme applicable in the UAE; Ms. Diana Hamade on Taras’ behalf, and Dr. Abed Awad on Ashlee’s behalf. Both witnesses were qualified as experts on the laws of the UAE, on consent of the parties.

[125] Ms. Hamade is the Managing Partner of Diana Hamade Attorneys at Law, a boutique law firm specializing in Family law, cross border litigation and private wealth, located in Dubai, UAE. Ms. Hamade is a UAE-licensed lawyer with right of audience before UAE Courts and an expert in Civil and Sharia law, specializing in family law matters with emphasis on succession planning and private clients. She also provides expert witness evidence on family law matters including divorce, child custody and child relocation/abduction. Ms. Hamade has been qualified as an expert to give evidence on UAE Sharia and Family Law in in many jurisdictions including England, Australia, the United States and, most recently, in Ontario. She has 30 years of experience representing family law clients before the courts in the UAE.

[126] Mr. Awad is an American citizen with family roots in the Middle East. He was admitted to practice law in the States of New Jersey and of New York. He is the founding partner of Awad & Khoury, LLP, located in Hasbrouck Heights, New Jersey. He has a diverse law practice which includes matrimonial law (with a focus on international and multi-jurisdictional law), estate planning (especially Sharia-compliant estate planning), and Islamic law. His areas of expertise include Islamic family law, international family law, and comparative family law. He has an extensive academic career which includes teaching at various American Law Schools on international legal systems and the laws of Muslim countries, specifically Middle Eastern and North African legal systems, Islamic Banking and Finance, and Matrimonial Litigation.

[127] I found both expert witnesses to be extremely knowledgeable on the topic of Islamic laws and Sharia law, generally. I found them both to be very credible, objective and non-partisan. However, where their legal opinions differed on the laws applicable in the UAE, I have preferred Ms. Hamade’s evidence over Dr. Awad’s evidence, for the following reasons.

[128] Whereas Ms. Hamade has been living and practicing law in the UAE for some 30 years, Dr. Awad has never lived in the UAE nor has he ever practiced law in that country, let alone represented litigants before the UAE courts. In that sense, his knowledge of UAE laws is purely academic and based on his reading and interpretation of the legislation and caselaw emanating from that country. He has no personal or practical experience of the UAE’s legal system as a practicing lawyer. UAE law, specifically, is not the focus of his academic knowledge and teachings; his professional expertise relates to Islamic Law and culture and the laws of multiple Muslim countries in the Middle East. Dr. Awad’s knowledge of the UAE’s family law system was limited, in my view, by the fact that he does not practice law and represent clients before the UAE courts on a daily basis, contrary to Ms. Hamade. In my view, it was very noteworthy that Dr. Awad had not mentioned, in his original expert report, the recent amendments to the laws in the UAE which came into effect in 2020 (before he was retained to complete his expert report), and which in my view (and in Ms. Hamade’s view) significantly changed the way expatriates are treated by the UAE courts.

[129] Based on the expert evidence provided to me during this trial, I come to the following conclusions as it relates to the legal context and legislative scheme applicable in the UAE to expatriates (non-UAE citizens who are residents in the UAE, or “expats”) in relation to family matters. Both experts confirmed that 85% of the UAE’s population comprises expats from all over the world and only 15% are national citizens (“nationals”). The UAE’s entire economic system relies on expats working, living and spending money in the country.

[130] Ms. Hamade testified that the UAE legislator has introduced amendments to its Personal Status, Civil Transactions and Criminal law in November of 2020, as part of the UAE's efforts to develop its legislative and investment environments and to foster tolerance. The amendments were made in part in response to the pandemic and as a result of the normalization of relations between the UAE and the State of Israel. The new laws include allowing non-citizens to have the laws of their countries or Wills, apply to them regarding inheritance in personal status law, decriminalizing acts that do not cause harm to others, alcohol consumption, cohabitation of unmarried couples, and acts of attempted suicides. Tougher punishments for harassment and other offences against women have also been introduced. The law of the marriage also now governs divorce and other related matters, such as custody, maintenance, and child arrangements. The Civil Code is no longer subjecting expats to Sharia law and Public Order as a matter of course when applying foreign laws on them.

[131] According to Ms. Hamade, these amendments significantly changed the workings of the judicial system in Dubai. She confirmed that the Dubai Courts now often apply foreign laws and would apply foreign law in this case as the parties are non-muslims and non-nationals. She confirmed that the enforcement of court orders is subject to restrictions in its application of public policy to expats. Ms. Hamade testified that since those amendments came into effect, the Dubai Courts frequently respect agreements reached by expats with respect to decision making and time sharing of their children which are incorporated into consent judgments by the Dubai Courts. She confirmed that she had herself handled such matters over the course of the past year, successfully, and she referred to UAE Courts’ decisions where this had been done.

[132] This is an important point because in this particular case, the parties signed a notarized document entitled “Joint Custody Declaration” within days following A.N.V.’s birth, when they were still living in Germany. In this very brief document signed by both parties on November 8, 2018, they acknowledge Taras’ paternity in relation to A.N.V. and confirm that they wished “to jointly assume parental care of” A.N.V. (hereinafter referred to as the “Joint Custody Declaration”).

[133] In her testimony Ashlee attempted to convince the court that she had nothing to do with the preparation of this document, that Taras had simply asked her to attend the notary’s office ten days after A.N.V. was born on the pretense that they needed to sign documents to be able to obtain A.N.V.’s birth certificate. She alleged that she had no understanding of what she was signing on that day, because the document was written in German and was explained to her by Dr. Ott, the notary, in German only.

[134] I do not accept Ashlee’s evidence in that regard. I find that at the time of A.N.V.’s birth, given that the parties were not married, both parents were required to acknowledge Taras’ paternity in order for a birth certificate to be issued by the German authorities. It was also understood, at least by Taras, that as an unmarried father living in the UAE he would not be recognized as A.N.V.’s father. I find that it was important to both parties for Taras’ status as A.N.V.’s father to be confirmed by way of formal documents allowing for identification documents to issue for her (a German birth certificate and a Canadian passport) and to ensure her safety in the UAE and in the context of the family’s many travels around the globe.

[135] It is noteworthy that at the same time they signed the Joint Custody Declaration, Taras and Ashlee also signed mutual Powers of Attorney (which were also notarized) allowing each parent to travel freely with A.N.V. without the consent of the other parent.

[136] In the context of this trial, I received expert evidence from Ms. Julia Pasche, a German lawyer who is certified as an expert in family law by the German Bar. She opined that in Germany, notarial deeds such as the Joint Custody Declaration signed by the parties before Dr. Ott (a notary) has the same effect as a court order. According to her, Taras’ status as A.N.V.’s father is established by that document, which is one of the ways that a man can acquire legal paternity for a child born out of wedlock in Germany. Once the signed declaration was notarized in a deed, it legally and unequivocally established Taras’ status as A.N.V.’s father and granted him full parental rights to her.

[137] While Ashlee claims that she did not understand the documents that she signed in front of Dr. Ott because it was in German and explained to her in German only, in the deed itself Dr. Ott states:

“The Notary was convinced by their [the parties] declaration that they were not sufficiently proficient in German; they spoke English. The notary orally translated this record into English. The parties waived the preparation and attachment of a written translation.”

[138] It is important to note that neither Ashlee or Taras speak German. I do not accept that the parties would have accepted to sign documents that they could not understand, and I find as a fact based on the evidence before me that Dr. Ott clearly explained to them, in English, the nature and legal effects of the documents they were signing. It is telling in my view that when Ashlee left Dubai with A.N.V. on the night of December 13, 2020, she took this important document with her. I do not believe Ashlee’s evidence to the effect that she brought this document with her to Ottawa a year earlier, that she had forgotten about it, and that it was lost in a box somewhere at her parents’ home. She knew exactly the meaning and importance of the Joint Custody Declaration, and that is why she removed it from the parties’ safe in their Dubai home, and brought it with her to Ottawa when she fled with A.N.V. on December 13.

[139] Ms. Hamade testified that it was likely that German law would apply to the parties before the UAE court if they sought to legalize the notarized German joint custody declaration there, on consent. If Taras alone sought to enforce the joint custody declaration before the Dubai Court, Ashlee will receive notice of same and will have the option of consenting to it becoming a court order, or of opposing it. If she chooses to oppose it, then litigation will have to be commenced and UAE laws will apply to determine the parenting arrangements that would be in A.N.V.’s best interest. While children born outside of marriage continue to be treated differently by the laws of the UAE, children of unmarried expats are now treated differently due to the recent changes to the UAE laws. According to Ms. Hamade, since A.N.V.’s German birth certificate and the parties’ notarized Joint Custody Declaration recognize Taras as her father, granting him full parental rights, A.N.V. has been rendered “legitimate” in the UAE.

[140] If indeed the UAE courts recognize Taras as A.N.V.’s father, but for some reason decide to apply UAE laws to this matter, then the presumption is that Taras would be given guardianship of her (decision-making responsibility over important decisions related to her education, care, religion and “upbringing”), Ashlee would be granted physical care of A.N.V. until she reaches the age of 13, and Taras would be given “visitation rights”. I find as a fact that a child’s best interest is paramount to the UAE court’s decision as it relates to a child’s parenting arrangements, and I was referred to a number of recent cases by Ms. Hamade and Taras’ counsel where the UAE courts deviated from the above presumptions when deciding on the parenting arrangements that would be best for children of non-nationals (expats).

[141] To the extent that the Joint Custody Declaration does not recognize Taras as A.N.V.’s father, both experts agree on the fact that Ashlee would automatically be granted both guardianship and physical care of A.N.V., leaving Taras with no standing to seek a parenting order for her before the UAE courts.

[142] Finally, I accept Ms. Hamade’s evidence that there are various ways in which Ashlee can obtain residency status in Dubai on her own, without the need to rely on Taras’ goodwill. One such option is through the use of a "free zone’ which involves the rental of a virtual office, something that is not only common but actively promoted and supported by the UAE’s authorities to attract expats and boost the country’s economic growth.

Real and substantial connection

[143] In Hibbert v. Escano, 2010 ONSC 1445, at paras. 65 and 70, the Court concluded that unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little to no weight in support of a claim for jurisdiction. Similarly, the courts have made it clear that friendships and community ties that have been developed largely due to the passage of time required to get a matter before the courts do not lead to a real and substantial connection with Ontario (Solem v. Solem, 2013 ONSC 1097, at paras. 61 to 63; Gillespie v. Jones, 2015 ONSC 5265, at para. 49).

[144] In Gilbert v. Gilbert (1985), 1985 CanLII 4967 (ON SC), at para. 31, the court found that the children had been “briefly exposed to some important institutions, relatives and friends in Ontario”. Steinberg J. concluded that “it would be stretching the term ‘real and substantial connection with Ontario’, beyond any true meaning to find that the Applicant has satisfied this criterion.”

[145] In Solem v. Solem, 2013 ONSC 1097, at para. 63, the court concluded that while the children in that case might have had the opportunity to develop friendships and some ties in their community during the 16 months that they had lived in Ontario with their mother, this was largely due to the passage of time required to get the matter adjudicated upon before the courts. This, in the court’s view, did not lead to a find that they had a real and substantial connection with Ontario.

[146] This is exactly the case here. The parties never lived in Ontario as a family. A.N.V. never lived in Ontario with her two parents. At best, A.N.V. spent a six-month extended stay in Ontario during the summer and fall of 2019, and for half of that time she was retained here against her father’s will because Ashlee refused to return to Dubai as had been the plan originally when she left Dubai with her in April. Ottawa was never A.N.V.’s real home before her wrongful removal from Dubai.

[147] The Court in Wang v. Lin, 2013 ONCA 33, held that it made "eminently good sense" for the "real home" or "ordinary residence" to be a presumptive connecting factor to establish a child’s real and substantial connection to a specific jurisdiction. More recently in N. v. F., the Ontario Superior Court agreed that the "presumptive connecting factor in these cases is the parties’ and the children's "real home"." This decision was upheld by the Ontario Court of Appeal in N. v. F., 2021 ONCA 614 (see also Wang v. Lin, 2013 ONCA 33, paras. 46-47).

[148] A.N.V. was only two years old (26 months) when she was wrongfully removed from her habitual residence in Dubai. During the 22 months that preceded it, her habitual residence, her “real home”, was in Dubai. The fact that she spent vacation time away from Dubai, whether in Turkey or in Ottawa, does not detract from the fact that her real home was in Dubai, where she lived for most of her very short life with both of her parents. Ashlee cannot create a real and substantial connection between A.N.V. and Ottawa by her unilateral act of removing her from Dubai and withholding her in Ottawa without Taras’ consent.

Balance of convenience

[149] Having already determined that the criteria set out in subsections 22(1)(b)(ii) and (v) have not been met, there is little point discussing whether subsection (vi) would favor Ontario on a balance of convenience. For the sake of completeness however, I wish to say that in my view, Ontario is not the best forum to determine which parenting arrangements are in A.N.V.’s best interest based on convenience.

[150] Where the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction (Solem v. Solem, 2013 ONSC 1097, at para. 64). I have already found that substantial evidence in relation to A.N.V.’s best interest is available in Dubai, and I find that this is also where most of the objective evidence is.

[151] While I acknowledge that it would be much more convenient for Ashlee to have matters related to the parenting of A.N.V. decided here in Ontario, in a language and a legal system that is familiar to her, where her family resides and where she wishes to establish herself from hereon, that is not the test.

[152] While there is relevant evidence available in Ontario in relation to the parenting arrangements that would be in A.N.V.’s best interests available in here in Ontario, that evidence can be made available in the UAE. In a recent decision by Morgan J. in Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896, he questioned whether in the current global context, where hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations (as was the case for this entire litigation), whether there remains any situations where litigants would be able to challenge the convenience of a forum based on unfairness, unreasonable expenses or impracticality.

[153] In the end, I am reminded that one of the most important public policy purposes underlying s. 22 of the CLRA is the discouragement of international child abductions. Based on all the above, I find that Dubai is the most convenient forum to decide on the parenting arrangements that would be in A.N.V.’s best interest.

[S. 23](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html#sec23_smooth) of the [CLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)

Risk of harm resulting from a child’s separation from her primary caregiver

[154] Ashlee argues that A.N.V.’s separation from her, her primary caregiver, will necessarily lead to the kind of serious harm that is contemplated by s. 23 of the CLRA, thus grounding this court’s jurisdiction to hear this matter. To support her position, she relies on the Court of Appeal’s dissenting opinion in N. v. F., supra.

[155] In N. v. F., the majority described the problematic nature of the dissenting opinion that serious harm is established by the separation of a child from their primary caregiver:

"In his dissent, my colleague states that the trial judge made a palpable and overriding error in analyzing Ms. Parker's evidence. He holds that:

[a]n indefinite separation of two quite young children, one under two years old and the other only four, from the parent who has always been their primary caregiver, constitutes a risk of serious harm. This finding can be reached without any expert evidence on the specific impact such a separation is likely to have on Z. and E. in particular. A risk of serious harm is established if the court is convinced on a balance of probabilities that this separation will occur.

If my colleague is correct, then there was no need for Ms. Parker to testify. Indeed, much of the evidence called at trial was superfluous. According to his logic, to succeed on a s. 23 argument, all that a primary caregiver needs to establish is: (1) that the children in issue are under the age of five; (2) that they refuse to return the wrongfully retained children to the children's home jurisdiction; and (3) that they refuse to return to the children's home jurisdiction if the children are required to go back there.

This logic is problematic for several reasons. First, it encourages child abductions, contrary to one of the public policy purposes underlying the CLRA. Second, it calls for an analysis that focuses solely on the preferences of the custodial parent and not on the best interests of the children. Third, it uncritically accepts that there will be serious harm regardless of the circumstances in a particular case, which are ignored entirely. Fourth, it comes dangerously close to reviving the long-discredited tender years' doctrine. Fifth, it replaces the discretion to be exercised by the trial judge with a hard-and-fast rule." (N. v. F., supra, paras. 92-94)

[156] I am in complete agreement with the majority’s opinion. In this trial, no evidence was adduced to support a finding that this child, A.N.V., would suffer serious harm as a result of being separated from her mother.

[S. 40](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html#sec40_smooth) of the [CLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)

[157] Section 40 of the CLRA allows the court who declines jurisdiction over a child to make temporary orders that it considers to be in the child’s best interest, including the following:

1. an interim parenting order or contact order;

2. a stay of 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. an order that a party be required to return the child to such place as the court considers appropriate and, in the discretion of the court, an order for the 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.

[158] Taras seeks an order that A.N.V. be immediately returned to her home in Dubai. In addition, he seeks the following interim parenting order:

1. That the parties shall have joint decision-making responsibility for A.N.V.

2. That A.N.V. shall reside with her parents in a 50/50 shared parenting arrangement (on a 2-2-5 rotating basis).

3. That Taras be entitled to retrieve the passports held in trust by Ms. Ekmekci, including the new passport that has been sent by Passport Canada for A.N.V. Neither party shall apply for new passports of any nationality for A.N.V. without order of this court.

4. That Taras be responsible for the cost of the airfare for travel from Ottawa to Dubai for A.N.V. and for Ashlee.

5. That Taras shall pay Ashlee’s monthly rent in Dubai up to $5,000 USD per month.

6. That Taras shall finance the opening of a virtual office company in Ashlee's sole name in a UAE "free zone" jurisdiction so that she can obtain her own visa/residency.

7. That Taras shall pay any and all annual fees required to maintain the free zone virtual office and Ashlee’s residency in the UAE.

8. That Taras shall pay the sum of $5,000 USD per month to Ashlee on a temporary and without prejudice basis, to be characterized at a later date.

[159] In this trial, I have given both parties more than reasonable time to consider what orders, if any, they wished for this court to make if they were not successful on the issue of jurisdiction. During her closing submissions, counsel for Ashlee confirmed her position that if this Court was to decline jurisdiction, no order should be made under s. 40 of the CLRA other than an order for A.N.V.’s return to Dubai.

[160] I have said this many times before, and I will repeat here that in my view, it is in A.N.V.’s best interest to ensure that both parents have ongoing in-person parenting time with her, immediately, and regardless of where A.N.V. resides. Having considered the order that Taras wishes for me to make, and Ashlee’s objections to same, I have concluded that it would not be appropriate for me to make that interim parenting order.

[161] Taras' evidence has convinced me that he understands the importance of both parents’ presence in A.N.V.'s life and that he is fully committed to encouraging and facilitating joint parenting and ongoing in-person parenting time between A.N.V. and her mother. His evidence confirmed that A.N.V. is in a safe, loving and stable environment, and that he will facilitate Ashlee's return home to Dubai or, if she chooses not to return, meaningful virtual and in-person parenting time between them. He has shown that he puts A.N.V.'s needs ahead of his own, and that he understands that court orders must be followed.

[162] In those circumstances, I will leave it to the courts of the UAE to assess what is in A.N.V.’s best interests and make a parenting order accordingly.

ORDER

[163] Pursuant to the Children’s Law Reform Act, I make the following final order:

1. It is declared that the child of the relationship, A.N.V., has been wrongfully removed to, and wrongfully retained in, Ontario by the Respondent/Mother, Ashlee Decristoforo, pursuant to section 40 of the Children's Law Reform Act.

2. It is declared that the Ontario Superior Court of Justice has no jurisdiction to determine the parenting issues pertaining to A.N.V. pursuant to section 22 or 23 of the Children's Law Reform Act.

3. A.N.V. shall be immediately returned to her habitual residence in Dubai, United Arab Emirates (UAE) pursuant to section 40 of the Children's Law Reform Act and in accordance with the terms of this Order. A.N.V. shall travel home to Dubai with the Applicant/Father, Taras Volgemut, from the Six Sense Resort in Kaplankaya, Turkey, where he is currently exercising parenting time with her in accordance with temporary orders of this Court.

4. This Order shall replace all previous interim orders made in this proceeding. For the sake of clarity, I confirm the following:

a. The Applicant/Father may remove A.N.V. from the Six Senses Resort, Kaplankaya, in Turkey, and may leave Turkey with the child to return to her habitual residence in the United Arab Emirates with her;

b. The Agreement/Consent signed by the parties in accordance with my July 5, 2021 Temporary Order, as well as the approved draft Final Order in the form prescribed by the laws of the UAE and any related documents, filed with the Court, are of no further legal effect and are deemed to be null and void. They shall not be released to either party, or their counsel or to anyone else without the prior leave of this Court;

c. The amount of $200,000 paid by the Applicant/Father and held in trust as a security for the child’s safe return to Canada in accordance with my July 5, 2021 Temporary Order, may be immediately released to the Applicant/Father;

d. The Applicant/Father shall be entitled to retrieve the passports held in trust by Ms. Ekmekci in Turkey (his and A.N.V.’s), including the new passport that has been sent by Passport Canada for A.N.V. Neither party shall apply for new passports of any nationality for the child without further order of a court having jurisdiction over the child.

COSTS

[164] If the parties are unable to agree on costs, I will accept written submissions not exceeding ten (10) pages (double spaced, 12 point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:

• The Applicant father to serve and file his submissions by December 3, 2021;

• The Respondent mother to serve and file her submissions by December 17, 2021;

• Applicant father’s reply, if any, to be served and filed by January 7, 2022.

Madam Justice Julie Audet

Released: November 9, 2021

[^1]: The evidence led by the parties in this trial strongly suggests that the Ottawa police force, for reasons unknown to me, refused to execute my August 31, 2021 Order, and deliberately refused to execute the Warrants for Ashlee’s arrest and committal. As there appeared to be some confusion about the terms of my August 31, 2021 Order, at my invitation counsel for the Ottawa Police appeared before me two days later so that the terms of my order could be clarified. A further, more detailed police enforcement order was made on that day, which granted the police force wide power to locate and enter any premisses where the child appeared to be for the purpose of apprehending her. The Ottawa police force was advised on a number of occasions by Taras and his counsel of the location where Ashlee and A.N.V. were suspected to be and asked to enforce the warrants. For reasons unknown to me, they took no steps whatsoever to execute the warrants or to enforce my August 31, 2021 Order. In her testimony at trial, Ashlee stated that her father, Frank, had been told by the detective in charge of this case that “no police officer would ever forcibly remove a three-year-old child from her mother’s arms”.

In any event, it took a few hours only for the Gatineau Police to locate and apprehend A.N.V., something that the Ottawa Police somehow failed or refused to do during the course of two full weeks. The Ottawa Police’s refusal and/or failure to execute a clear order of this Court was, and continues to be, highly troubling to me.