Court File and Parties

COURT FILE NO.: FC-19-2241 DATE: 2022-03-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amal Ahmed Mustafa Aldush, Applicant AND Mohammed Nouri Rasoul Alani, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Stephanie Smith and Giulianna Ferri, Counsel for the Applicant Sherif Rizk, Counsel for the Respondent Deborah E. Bennett, Counsel for the Office of the Children’s Lawyer

HEARD: December 16, 2021, by video conferencing

AMENDED REASONS FOR DECISION

Amended decision: The text of the original judgment was amended on March 16, 2022, and a description of the amendment is appended.

M. Smith J

Overview

[1] Amal Ahmed Mustafa Aldush (the “Mother”) and Mohammed Nouri Rasoul Alani (the “Father”) married in 1999, in Jordan, and moved to the United Arab Emirates (“UAE”) in 2000. They resided in the UAE throughout their marriage. There are three children of the marriage: S.M., R.M. and H.M.

[2] On September 18, 2020, the Father brought a motion seeking, amongst other things, an order for the return of all three children to their place of habitual residence in the UAE and an order that the Ontario Superior Court of Justice has no jurisdiction to determine the custody and/or access issues pertaining to the children.

[3] On March 17, 2021, the Office of the Children’s Lawyer (“OCL”) brought a motion for an order that the Father’s claims relating to proper jurisdiction and the removal of S.M. and H.M. from Ontario and their return to the UAE be dismissed as moot. On June 10, 2021, I delivered oral reasons and granted the relief sought in the OCL’s motion.

[4] On July 27 and 28, 2021, a Voir Dire was held to determine if the experts retained by the Mother and Father were qualified to give opinion evidence on the Father’s motion. On September 29, 2021, I released my decision (Aldush v. Alani, 2021 ONSC 6410) and concluded that the Mother’s expert was the only qualified expert to give opinion evidence.

[5] The Father’s motion proceeded on December 16, 2021, and it was limited to one child, R.M. because of my decision on the OCL’s mootness motion.

[6] I conclude that this court has jurisdiction to make a parenting order pursuant to ss. 22 and 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). For reasons that follow, the Father’s motion is dismissed.

Issue

[7] The only issue to determine on the Father’s motion is whether this court has jurisdiction to make parenting and contact orders in relation to R.M.

Introductory remarks

[8] Before embarking on the analysis of the issue, I find it necessary to address my concerns regarding the Father’s conduct in these proceedings, as well as the Father’s evidence that is before me on this motion.

[9] Dealing first with the Father’s conduct, I find that he has not complied with several procedural court orders, causing delays in the proceedings. On February 19, 2021, the Father was ordered to file and serve the expert report prepared by Mr. Mohammed Sabra by no later than March 31, 2021. He failed to comply with this order. On May 26, 2021, the Father was ordered to disclose several expert-related documents by no later than May 28, 2021. The Voir Dire regarding the admissibility of the parties’ experts was scheduled to proceed on June 10, 2021. Remarkably, the Father was unable to comply with the May 26, 2021 order and the court proceedings were further delayed. On June 10, 2021, the Father was ordered, yet again, to produce further expert-related documents as well as Mr. Sabra’s curriculum vitae and a duly executed Form 20.2 Acknowledgment of Expert’s Duty. Then, in an even more remarkable turn of events, on the day of the Voir Dire, the court learned that not only did the Father not comply with the previous June 10, 2021 order, but he advised the court that Mr. Sabra was no longer his expert and that Mr. Hussain Mirza Ahmed was his new expert.

[10] The Father’s disregard of court orders should not be condoned but more importantly, his conduct has delayed these proceedings, which is contrary to the best interest of his children. The outcome of these proceedings has a life altering impact on the children. Delays such as these can cause undue stress to the children.

[11] Turning to the Father’s evidence, I believe that it lacks credibility. He has been less than forthright with the court.

[12] First, in the Father’s Answer dated April 15, 2020, he omits to advise the court that on March 19, 2020, the Ajman Sharia Court awarded custody of the children to the Mother. He also omits to plead that, on April 9, 2020, he appealed the decision to the UAE Court of Appeal. The Father’s pleadings regarding the foreign custody court proceedings are limited to the following: “Shortly thereafter, in 2018, I retained legal counsel in the United Arab Emirates and filed sole custody in accordance with the law in that country. The case is still before the courts.” The Father was not entirely candid in his Answer.

[13] Second, on July 28, 2020, the Father swears an Affidavit in Support of Claim for Custody or Access. The Father also omits to advise the court of the Ajman Sharia Court order awarding custody of the children to the Mother or that he appealed the decision. He only deposes the following: “Travel restriction on applicant (dated August 7, 2018), order to appear in UAE court (dated August 28, 2018).” The Father was not forthright with the status of the custody proceedings.

[14] Third, the Father filed two additional affidavits on September 17, 2020, and October 2, 2020, in support of the motion. In these affidavits, the Father failed to mention that custody of the children had been awarded to the Mother by the Ajman Sharia Court.

[15] Fourth, at para. 29 of the Father’s affidavit sworn on September 17, 2020, he deposes the following: “For greater specificity, I deny each and every allegation of physical, emotional, psychological/mental, and/or sexual abuse towards the Applicant and/or any of my children. I have never been charged of any offence towards my wife or children, and have no criminal record to suggest that I would do such things. Attached to this my affidavit, marked Exhibit “J”, is a true copy of the Criminal Record Clearance Certificate” (emphasis added). This statement was untrue. During questioning, he admitted that he had been charged in 2005 and 2008.

[16] Fifth, the Father was questioned on November 12, 2020. The Father was asked about the results of the hearings and he responded as follows: “Okay, the first case has ended in 2018 and for the children, its still going on. I’m waiting for the response from the court.” The first case was the proceeding dealing with the Mother’s obedience to the Father and her needing to obtain his permission to travel. The second case was the custody proceedings. Not only did the Father not mention that the Ajman Sharia Court had awarded custody to the Mother, but he failed to mention that he had appealed the decision to the UAE Court of Appeal. More significantly, the Father failed to mention that the hearing before the UAE Court of Appeal had taken place approximately 11 days before the questioning.

[17] Sixth, despite having retained Mr. Rizk in January 2020, the Father failed to provide any documents to the Mother regarding the custody proceedings in the UAE. During questioning, the Father admitted that he had “the records of all the appearances from the court”, yet none of those documents had been disclosed. I find it disturbing that the Father withheld documents that went to the heart of the motion that he had commenced in September 2020. Although the Father subsequently disclosed some documents from the UAE proceedings, I find that it is far from being complete. The Father has not provided any of the supporting documents that were filed with the Ajman Sharia Court or the UAE Court of Appeal.

[18] Seventh, as of November 6, 2019, the Father was aware that the Mother and the children were in Canada. Yet, the Father took no steps to advise the Mother of the status of the UAE custody proceedings. At his questioning, the Father testified that the court in the UAE was sending documents to the Mother’s parents’ home in Jordan. The Father was represented by counsel in Ontario as of January 2020. Through counsel, the Father should have taken the following steps: (i) communicated to the Mother and her counsel that on October 30, 2019, the Father had made representations to the Ajman Sharia Court regarding the custody of the children and that a decision was forthcoming; (ii) provide a copy of the March 19, 2020 decision from the Ajman Sharia Court to the Mother and her counsel, immediately upon receipt; (iii) advise and provide a copy of the Father’s appeal to the Mother and her counsel, immediately upon filing; (iv) advise and provide to the Mother and her counsel a copy of the UAE Court of Appeal decision dated April 9, 2020 granting permission to proceed with the appeal, immediately upon receipt; (v) advise the Mother and her counsel of the date of the hearing before the UAE Court of Appeal, as soon as he was advised of same; and (vi) provide a copy of the UAE Court of Appeal decision, immediately upon receipt.

[19] The Father did not conduct himself in good faith vis-à-vis the custody proceedings in the UAE. The Mother was not given proper notice of the custody proceedings, preventing her from participating in proceedings that were intimately tied to the issues being heard on this motion. The Ajman Sharia Court and the UAE Court of Appeal rendered judgment without having had the benefit of receiving the Mother’s evidence. Because the Father has not provided this court with any documents that were filed with the Ajman Sharia Court and the UAE Court of Appeal, it is difficult to ascertain with any precision what information and/or evidence he conveyed to the UAE courts, which formed the basis of their decisions. The Mother was not given the opportunity to defend the matter and make her views known to the UAE courts.

[20] The only reasonable conclusion that I am left with is that the Father deliberately concealed from the Mother the status of the custody proceedings for the purpose of ensuring that his claims before the Ajman Sharia Court and the UAE Court of Appeal remained unchallenged by the Mother.

[21] While I am deeply concerned with the Father’s conduct and his evidence that lacks credibility, my analysis of the issue on this motion is not being undertaken solely through the lens of the Father’s conduct or bad faith. Rather, I find that the Mother’s evidence has clearly established an evidentiary foundation to conclude that this court has jurisdiction to make a parenting or contact order.

Analysis

The Legal Principles

[22] The UAE is not a signatory to the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (“Hague Convention”). This matter is not governed by the Hague Convention.

[23] Section 22(1)(b) of the CLRA provides that, when the child is not habitually resident in Ontario, the court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if 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-provisional 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.

[24] Sections 23(a) and (b) of the CLRA state that, despite s. 22 of the CLRA, the court may exercise its jurisdiction to make or vary a parenting order or contact order, if the child is presently in Ontario and if the court is satisfied that the child would 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.

[25] In the court’s analysis under s. 22 of the CLRA, the usual child’s best interest standard is not to be considered. The court may only exercise its jurisdiction if all six (6) of the enumerated criteria under s. 22 of the CLRA are met: see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at paras. 15 and 28.

[26] The factors to consider in assessing the serious harm to the child pursuant to s. 23 of the CLRA include the risk of physical harm, the risk of psychological harm, the views of the child, and the primary care parent not returning to the home of origin. A holistic approach to the determination of harm should be taken: see Ojeikere v. Ojeikere, at paras. 63 and 64; M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at paras. 44, 58-59.

[27] Section 23 of the CLRA imposes a less stringent standard than Article 13(b) of the Hague Convention. Those that have signed on to the Hague Convention have accepted that the interests of children are of paramount importance in matters related to custody. Section 23 of the CLRA applies when assessing the jurisdiction of a non-signatory country and it cannot be assumed that the non-signatory country will put the best interests of children first: see Ojeikere v. Ojeikere, at paras. 59 to 61.

[28] In determining if serious harm has been established, the analysis by the court should not be reduced to the comparison of the province’s justice system to that of the foreign jurisdiction, under the guise of child safety: see N. v. F., 2021 ONCA 614, 158 O.R. (3d) 481, at para. 79, matter stayed and leave to appeal granted, [2021] S.C.C.A. No. 364.

[29] When a child has been recognized as a Convention refugee by the Immigration and Refugee Board of Canada (the “IRB”), a rebuttable presumption arises that there is a risk of persecution on the return of the child to his or her country of habitual residence: see A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, at para. 74.

[30] When a child becomes a Convention refugee, the rebuttable presumption is that the child would, with some certainty, suffer serious harm: see M.A.A. v. D.E.M.E., at para. 77.

[31] To grant a refugee’s claim, the IRB must be satisfied, on a balance of probabilities, based on evidence that it regards as trustworthy and reliable, that a refugee claimant faces a reasonable chance of persecution. A decision of the IRB on fact and credibility-driven issues are accorded a high degree of deference by the court: see A.M.R.I. v. K.E.R. at para. 72.

Relevant evidence

[32] For the purposes of my analysis under ss. 22 and 23 of the CLRA, I find that the evidence set out in the text below is relevant.

Fleeing the UAE and refugee claim

[33] The Mother and children fled the UAE in or around February 2018.

[34] The Mother and the children arrived in Canada in or around April 2018.

[35] In November 2018, the Mother obtained an Islamic divorce from the Islamic Institute of Toronto.

[36] The Mother made a claim for refugee protection for herself and the children under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

[37] The evidence presented to the IRB included the testimony of the Mother, S.M., and R.M on April 3, 2019. In addition, the IRB received documentary disclosure. Part of that documentary disclosure were written narratives provided by the Mother, S.M., and R.M. S.M.’s written narrative read, in part, as follows:

i. I have always known my father was a bad person. ii. My father used to go into my room right after I would shower and before I would be dressed. This made me extremely uncomfortable. I told my mother about this. iii. He would repeatedly hit us. iv. Many times, I saw him hit and insult my mother. v. My dad would constantly take pictures of us, even when we were not appropriately dressed. I think he would share some of these pictures with his friend. I am not sure. vi. My dad used to scream at my brother. This has scared by brother. It is difficult for me to talk about this. vii. One time, about 3 years ago, he locked us in the house in the UAE for about 2 weeks. We were only allowed to go to school and come back.

[38] R.M.’s written narrative read, in part, as follows:

i. My father has always made me feel uncomfortable. I’ve always wanted him out of my life. ii. Growing up, I often saw him hitting and insulting my mom. iii. After taking my shower, I would go change into my mom’s room because I know he would be in my room and I didn’t want him there. iv. When I was 6 years old, I tried to poison my father. In the UAE, you cannot drink tap water. So I gave him a glass where I had mixed tap water with water from the cooler. I was hoping it would kill him. v. I tried this 3 times. vi. In 2017, I was happy when I heard that he had a lump and it might be cancer. We were all hoping it was cancer. vii. My father has hit me, quite harshly; he has repeatedly gone through my social media accounts.

[39] The Mother provided the IRB with copies of several threatening text messages sent by the Father to the Mother on February 15, 2018. They read as follows:

i. Hello Amal, if you think that you run away from Emirates and go to Jordan don’t expect me that I will not come over and find you, swear by God I will slaughter you like sheep, you dogs. ii. And your children swear by God that I will go to them to Iraq, and you know what I can do. iii. Go back from what is in your head better for you. I can send people to kidnap them from Jordan, and you tried to complain against me to the police and it didn’t work. iv. Last warning to you.

[40] The IRB was provided with a psychological assessment report from Dr. David Eisenach dated February 28, 2019, regarding the Mother’s mental health. Dr. Eisenach concluded that the Mother suffered from Post-Traumatic Stress Disorder (“PTSD”). He opined that if the Mother was returned to Jordan, where she fears being discovered by the Father, it would heighten her pervasive fear and cause re-traumatization, and likely lead to a significant deterioration in her mental health.

[41] On April 17, 2019, the IRB determined that the Mother and the children are Convention refugees pursuant to s. 96 of the IRPA.

[42] The IRB made the following findings:

i. The Mother is a citizen of Jordan, and the children are citizens of Iraq. ii. The Mother has a well-founded fear of persecution by reason of membership in a particular social group as victims of gender and family violence. iii. The Mother was very credible. Her oral and written evidence was consistent and straightforward. iv. During the entire hearing, the Mother’s demeanour demonstrated her frustration and pain when she was narrating the psychological and physical abuse from the Father towards her and the children. v. The Mother provided supporting documents to corroborate her allegations, including police reports regarding the incidents, letters from her siblings and father, as well as psychological reports. vi. S.M.’s testimony was moving. S.M. testified that the Father was always abusive and if she goes back, the Father will marry her to someone from his family and she will not be able to get an education. R.M. felt the same as S.M. vii. There is strong societal resistance from the authorities to improve the situation of women and if the Mother goes back to Jordan, the state protection will not be available to the Mother. There is no area in Jordan where she could live without serious possibility of being tracked by the Father.

Mother’s evidence

[43] During the marriage, the Father was emotionally, physically, and verbally abusive towards the Mother and the children. The Father would frequently assault the Mother in front of the children. The Father would hit the Mother against walls, pull her hair, slap her, and throw objects at her.

[44] The Father treated the Mother like a prostitute. If she did not have sex with him regularly, the Father would forbid the Mother from leaving the house.

[45] The Father would yell at the children and insult them regularly. He would touch the children inappropriately. The Mother witnessed the Father watching the children undress and filming them. The children became afraid of the Father.

[46] In 2005, the Father was charged with defamation and dishonesty in relation to images he had made and distributed upon which he placed the Mother and her sister’s face on the bodies of prostitutes. The Father was arrested and detained, but the criminal case was not pursued by authorities and the Father was released with a warning.

[47] While the Father was in police detention, the Mother was blackmailed by one of the Father’s friends. The friend threatened to publish altered images of the Mother on social media and take her daughter away to Iraq.

[48] In 2008, the Mother filed another police report because she had discovered that the Father was once again sharing inappropriate images of her and her sister online. The Father was criminally charged. However, the charges were not pursued by authorities once the Father signed a statement promising not to interfere with the Mother in this way again.

[49] The Mother was afraid to initiate a divorce in the UAE because she did not have permanent legal status in the UAE.

Father’s evidence

[50] The Father denies that he has ever abused the Mother, either physically, emotionally, or psychologically. He denies yelling at the Mother. More specifically, during questioning, he testified that he never once raised his voice during the marriage.

[51] The Father denies the Mother’s allegations that he would demand copious sexual intercourse. He said that the Mother had full freedom to come and leave the house, as well as have a career in her chosen field.

[52] The Father denies hurting the children in any manner. He testified that he never used physical discipline with his children when they were misbehaving.

[53] The Father denies that he ever attempted to marry his daughter S.M. in Iraq. Although he is an Iraqi citizen and a holder of an Iraqi passport, he left Iraq permanently in 1994, only returning twice to visit, the last visit being in 2012.

[54] In the Father’s affidavit dated September 17, 2020, he denies that he had ever been charged with any offence towards the Mother or the children. However, during his questioning, he acknowledged that he had been charged in 2005 and 2008 in relation to allegations made by the Mother.

[55] In his reply affidavit dated October 2, 2020, the Father clarified that for the 2005 charges, he did not create any of the alleged images. The case was dropped by the police due to lack of evidence.

[56] The Father denies suffering from any mental illness. He provided the Ajman Sharia Court with a brief psychological assessment report (five lines in length) stating that “there is no evidence of any psychological disorders or problems currently preventing him from the custody of his children.”

[57] Regarding the Mother’s allegations that the Father sent her threatening text messages on February 15, 2018, he denied sending these messages. He claims that the Mother fabricated the text messages. The Father contests the validity and authenticity of those text messages because they are inconsistent with the records that he has, and they do not conform to the regional dialect of Arabic that he uses.

Children’s evidence

[58] Ms. Janet Claridge is a clinician with the OCL and submitted two affidavits. The first was sworn on November 8, 2020, and the second on October 15, 2021. Ms. Claridge assisted OCL counsel in conducting interviews with the children to ascertain their views and preferences, and to provide evidence of those views and preferences to the court.

[59] Ms. Claridge’s second affidavit pertained only to R.M. Ms. Claridge deposed that over the course of her involvement with R.M., she noted that R.M.’s views have been consistent and strong.

S.M.

[60] S.M. describes having a close relationship with the Mother and her siblings. She describes R.M. as being her best friend.

[61] S.M. describes the Father as not being a good person. She was supportive of the Mother’s plan to leave the UAE. She does not want any contact with him. S.M. has never had a relationship with the Father and described it as a “chore”. She also has never had a relationship or contact with the Father’s family.

R.M.

[62] R.M. recalls fleeing the UAE and she was also supportive of the Mother’s plan to leave the UAE.

[63] Prior to leaving the UAE, R.M. always had to ask for the Father’s permission. She is concerned that the Father “lost it” when they left the UAE without his permission.

[64] R.M. states that she does not have a relationship with the Father and described him as “horrible and abusive” towards her, her siblings and Mother. She does not want to speak to the Father or be in his care. She has no connection with the Father and she does not want to connect with the Father. R.M. does not recall the last time that she spoke to the Father.

[65] R.M. fears that the Father will take her away from the Mother. She also expresses fears about having to travel to Iraq, which she understands is not safe.

[66] R.M. is happy with her life. She wants to stay in Canada. She feels safe and very happy living with her Mother and siblings. If she was ordered to return to the UAE, R.M. states that she would have no future. She would try to escape because she would feel uncomfortable and unsafe in the Father’s care.

H.M.

[67] H.M. describes the Father as not being nice.

[68] H.M. wishes to live in Canada with his Mother and siblings. He is happy and feels safe with the Mother.

[69] If he was ordered back to the UAE, he would be very sad and he would be afraid that the Father would be mean towards him.

Ontario and UAE legal proceedings

[70] In or around February 2018, the Father filed a report with the UAE Ministry of Interior regarding the disappearance/abduction of his children and the Mother.

[71] In or around April 2018, the Father filed a complaint with the Ajman Police stating that the Mother stole six gold bars and took the children.

[72] In or around August 2018, the Ajman Sharia Court ruled against the Mother and obliged her to obey the Father and prevented the Mother from traveling outside the country without the Father’s permission or a legitimate excuse (“Obedience Order”).

[73] On September 17, 2019, the Father presented his case before The Family Guidance Committee, Ajman Sharia Court (the “Committee”) seeking: (i) the authorization to file a dispute; (ii) an order for the Mother to obey the Father and not leave the conjugal domicile; and (iii) if the Mother refuses to obey the Father, a judgment announcing the Mother as a rebellious wife, depriving the wife of all legitimate rights.

[74] On September 19, 2019, the Committee issued a decision stating that there was a failure to reach reconciliation about the complaint because the Mother was out of the country.

[75] On October 30, 2019, the Father presented his case to the Ajman Sharia Court.

[76] The Mother commenced an Application before the Ontario Superior Court of Justice on November 15, 2019. The Father filed his Answer on April 15, 2020.

[77] On March 19, 2020, the Ajman Sharia Court ruled, amongst other things, that if the Mother returns to the UAE, she is to allow the Father to have access to the children on Thursdays from 4:00 p.m. to 9:00 p.m. provided that he picks up the children and returns them to the Mother.

[78] On April 9, 2020, the Father appealed the decision of the Ajman Sharia Court.

[79] In or around December 2020, the UAE Court of Appeal ruled that S.M. and R.M. are to join the Father temporarily. The UAE Court of Appeal wrote as follows regarding custody of S.M. and R.M.: “it is the age when the father, more than the mother, is expected to watch over his daughters and monitor their behaviour both inside and outside the house so he can protect them during this period of life and prevent them from falling into life’s troubles.” In terms of H.M., the UAE Court of Appeal ruled in the following manner: “He is still a minor and in need of his mother more than his father and shall not be separated from his mother as this will be harmful to the child, and the court always takes into consideration the child’s best interest, therefore the court shall uphold the appealed ruling in this regard.”

Expert Evidence

[80] The Mother’s expert, Mr. Hossein Raessi, provided the following opinions, as found in his expert report dated January 4, 2021:

i. In the event of a divorce in the UAE, a mother has priority over the custody of her children (followed by the children’s father, maternal grandmother, paternal grandmother, etc.), until her daughter reaches the age of 13 and her son reaches the age of 11. Thereafter, custody of both girl and boy children reverts to the father unless a judge determines that it is in the interest of the child for her or him to remain in the custody of the mother. ii. If disobedience during the marriage has been proved to the satisfaction of the Sharia Court, and a divorce has occurred, then the proven disobedience would impact the mother’s custody. iii. Custody of the children is the given right of the father in the case of a divorce, as explained above. After a divorce, a mother could have the custody of her children as long as she is in line with expected behaviour and follows Sharia law. However, if the mother brings any dishonour or if she is convicted of any crime, she will immediately lose her given custody. iv. According to the Article 51 of the Emirati Personal Status Law No. 28/2005 (“PSL”): “A mother loses custody of her child as a result of her: (i) unsound judgement; (ii) immaturity; (iii) lack of fidelity; (iv) inability to raise, maintenance and care the child in the child’s best interest; (iv) dangerous, contagious or infectious diseases; (v) previously convicted for a crime against honour; (vi) re-marriage to a man who is not closely related to the child unless the court considers it to be in the best interest of the child to remain in the custody of the mother; (vii) not being a Muslim unless a judge deems it in the interest of the child; but the mother’s custodial”

[81] Mr. Raessi opined that the Mother would lose custody of her children due to the Father’s allegation that she stole gold bars and fled the country. In his opinion, in the UAE, men and women do not have equal rights in marital law, divorce and the custody of their children. The PSL gives the husband the right to the “full obedience” of his wife. A woman leaving the country without her husband’s consent is an example of disobedience. The mother’s matrimonial rights are limited in the UAE due to the PSL and Sharia Law.

Section 22(1)(b) of the CLRA

[82] R.M. was not habitually resident in Ontario at the commencement of the Mother’s Application. Therefore, the court can only exercise its jurisdiction if the six criteria set out in s. 22(1)(b) of the CLRA are met.

Criteria #1 – child physically present in Ontario

[83] The parties agree that R.M. was physically present at the commencement of the Application. This criterion is met.

Criteria #2 – substantial evidence concerning the best interests of the child

[84] The Father says that R.M. has had extensive schooling in the UAE and that this important factor should be considered. R.M.’s teachers would provide the evidence regarding her education. However, they reside in the UAE, and it would be inefficient for them to attend Canada to testify on this point.

[85] The Mother responds that R.M. has been living in Canada since April 2018, attending school on a full-time basis for almost four years. R.M. started her 4th year of school in Canada. The substantial evidence regarding R.M.’s best interests is found in Ottawa and comprises of her schooling and medical records, as well as testimony from her teachers, siblings, friends, and doctor.

[86] With the advancement of technology since the pandemic, the location of witnesses is a less relevant factor. There is no evidence before me to suggest that either the witnesses in the UAE or those residing in Ottawa could not be made available to testify in either jurisdiction.

[87] The focus of the analysis should be on determining the most helpful evidence to the court. While the evidence concerning R.M.’s early childhood in the UAE is of some assistance to the court, I believe that the most substantial and relevant evidence would be R.M.’s current day to day life, school, recreational activities, interests, and relationships.

[88] This criterion is met.

Criteria #3 - pending before an extra-provisional tribunal

[89] The Father says that in April 2018, the Father filed a legal proceeding with the Ajman Sharia Court under Personal Status Case number 248/2018. At the time that the Mother commenced her Application in November 2019, there was a pending proceeding in the UAE. In December 2020, a final judgment was rendered by the UAE Court of Appeal. The Father argues that by seeking the jurisdiction of this court, there is a risk of duplicitous proceedings.

[90] The Mother says that she was not given proper notice to any of the proceedings in the UAE and as such, she did not participate. None of the UAE courts have received her evidence. The Mother argues that with the conclusion of the custody proceedings in the UAE, including an appeal, there is no longer a pending application respecting decision-making responsibility, parenting time or contact with the child.

[91] To determine if an application is pending before an extra-provincial tribunal, one must look at whether one existed at the time that the Ontario Application was commenced. Because an Ontario Court can refuse to enforce an extra-territorial order, then it must also be possible to conclude that extra-territorial proceedings are not necessarily a bar to jurisdiction in Ontario: see Chaudry v. Khan, 2016 ONSC 7773, 96 R.F.L. (7th) 418, at para. 43.

[92] To my understanding, the Father’s filing in April 2018 dealt with his complaint to the police regarding the stolen gold bars. In terms of the custody proceedings, the Father has provided an undated copy of the custody application that he filed before the Ajman Sharia Court. In the UAE Court of Appeal decision, it is noted that the Father presented his case to the Ajman Sharia Court on October 30, 2019. The Mother’s Application in Ontario was filed on November 15, 2019. On the assumption that the date referenced in the UAE Court of Appeal decision is accurate, then, temporally speaking, there was a pending application before the UAE when the Mother commenced her Application in Ontario.

[93] However, the analysis does not end there.

[94] In Chaudry v. Khan, D.L. Corbett J. concluded that the contextual reading of criterion #3 had to be taken further. At paras. 44 and 43, the court noted the following:

[44] In the case before me, this contextual reading of factor (iii) needs to be taken further. Bahraini proceedings were commenced by Mr Chaudry before he commenced this proceeding in Ontario. Ms Khan never took the initiative to commence proceedings. Both parties recognized that they had an irreducible disagreement over whether the children should be in Bahrain or Ontario before proceedings were commenced anywhere. In H.E. v. M.M., the parties had litigated in Egypt and the mother brought the children to Ontario in breach of the order of the Egyptian court. The trial judge was critical of this conduct and emphasized the importance of the fact that the mother had attorned to and participated in the Egyptian proceedings. The Court of Appeal was critical of this reasoning and found that the trial judge had placed too much emphasis on attornment. In the case before me, Ms Khan did not attorn to the Bahraini court, the proceedings were commenced after she left the country, and she received no actual notice or opportunity to participate in them. On the logic of H.E. v. M.M., the proceedings taken in Bahrain by Mr Chaudry after Ms Khan had left the country do not constitute a "pending proceeding" within the meaning of s.22(1)(b)(iii) of the CLRA.

[45] Finally, I conclude that the Bahraini proceedings have not been pursued in good faith in any event. Mr Chaudry knew how to reach Ms Khan to give her practical notice of the Bahraini proceedings. From Ms Khan's perspective, the Bahraini proceedings were taken in secret, without notice to her, for the obvious purpose of precluding her from defending her position on the merits, both in Bahrain and in Ontario on jurisdictional grounds. The Bahraini court has already issued its order, and, for reasons set out below, this court will not recognize that order. Given all these circumstances, I find that there is no proceeding pending in Bahrain, within the meaning of s.22(1)(b)(iii) of the Act.

[95] I adopt D.L. Corbett J.’s reasoning and it applies in this case.

[96] The Mother fled the UAE in February 2018. As set out earlier, the Father had repeated opportunities to advise the Mother directly of the pending custody application in the UAE. Yet, he made a deliberate choice to not inform the Mother, thereby preventing her from participating in any of the proceedings. As previously noted, this type of conduct amounts to bad faith.

[97] Because of the Father’s actions and the Mother’s inability to defend the UAE proceedings, I find that there are no pending proceedings in the UAE.

[98] This criterion has been met.

Criteria #4 – no extra-provincial order recognized by a court in Ontario

[99] Although there are orders in the UAE, these extra-provincial orders have not been recognized by a court in Ontario. The Father has not brought an application to enforce an extra-provincial order under s. 41 of the CLRA. This criterion has been met.

Criteria #5 – real and substantial connection with Ontario

[100] The Father says that the most relevant consideration in determining the real and substantial connection with Ontario is the time that existed before their arrival in Ontario. The Father submits that I need to discard the connection that exists today because it was created unilaterally by the Mother when she fled the UAE. Prior to coming to Canada, R.M. had no real connection to Canada. In fact, Canada was the fourth country of refuge, after fleeing Jordan, Turkey and the United States.

[101] R.M. has been residing in Canada since 2018. Since her arrival in Canada, she has established friendships and continues to participate in extra-curricular activities. She has ties to the community.

[102] I am unable to accede to the Father’s argument that this connection exists only because it was created unilaterally by the Mother when she fled the UAE. The IRB granted R.M. Convention refugee status because there was a well-founded fear of persecution by reason of membership in a particular social group as victims of gender and family violence. There is a basis for the Mother fleeing the UAE with her children. The Mother and the children have a connection to Ontario because of their refugee status.

[103] I disagree with the Father that the most relevant consideration is the time when R.M. lived in the UAE. R.M. has been building a life in Ontario for approximately four years, and in my view, the evidence shows that R.M. and her family have strong connections to Ontario.

[104] This criterion has been met.

Criteria #6 – balance of convenience

[105] The balance of convenience favours the jurisdiction where the independent evidence that is of the greatest assistance to the court is located.

[106] The Father claims that the bulk of the evidence that substantiates the allegations made by the Applicant is contained primarily in Arabic because the couple resided for many years in the UAE before separation. Also, the Father refers to the fact that he will be relying on testimony from witnesses that reside in the UAE.

[107] As indicated earlier, I find that the location of witnesses is not relevant with today’s advancement of technology. That said, while the Father may claim that he has witnesses, he did not elaborate on the type of witnesses that may need to testify.

[108] Documents can easily be translated. Since the commencement of the proceedings in Ontario, the parties have been required to translate numerous documents. I do not find this argument compelling.

[109] The evidence that would be of the greatest assistance to the court is in Ontario. The substantial and most objective evidence in relation to R.M.’s best interest is available in Ontario. In addition to R.M.’s evidence, the other individuals that will present pertinent evidence regarding R.M.’s best interests are: her Mother, siblings, friends, doctor, and teachers. These individuals all reside in Ontario and their evidence, either oral or documentary, is in Ontario. The balance of convenience favours the Ontario jurisdiction.

[110] This criterion has been met.

Disposition

[111] For the foregoing reasons, I find that the six criteria have been met and that the Ontario jurisdiction can be exercised pursuant to s. 22(1)(b) of the CLRA.

Section 23 of the CLRA

[112] The Father argues that the Mother has not established a risk of serious harm on the balance of probabilities to warrant an exercise of the court’s discretionary powers under s. 23 of the CLRA. He argues that the bulk of the evidence before the court regarding serious harm pertains to the Mother and not R.M.

[113] The Father heavily relies upon the recent Ontario Court of Appeal decision in N. v. F. in regard to the proper assessment that must be undertaken by the court. As noted above, this decision has been stayed and leave to appeal to the Supreme Court of Canada has been granted. It is expected that the Supreme Court of Canada will hear this appeal in March 2022.

[114] The Father’s submissions can be summarized as follows:

i. The Mother does not face risk of physical harm in the UAE. The Mother’s precarious residency status in the UAE is not a relevant consideration, and it should not be confused with risk of serious harm to R.M. ii. The evidence before the court does not establish that R.M. is at risk of serious harm. iii. The Father is prepared to share decision-making responsibility and parenting time with the Mother, as long as everything occurs in the UAE. In addition, the Father claims that he would be prepared to assist the Mother in rectifying her legal status in the UAE, so that she does not face consequences for her actions upon her return to the UAE. iv. The evidence provided by the Mother’s expert highlights the differences between the laws of Ontario and the UAE, but it does not establish that the children themselves are at risk under the UAE law. v. The Mother relies on the presumption that she is afforded as a Convention refugee, but this presumption has been rebutted by the Father. The evidence before the IRB was fabricated and incomplete. vi. Regarding R.M.’s views and preferences, the Father says that the affidavit evidence does not clarify a specific risk of harm that the Father poses on R.M.. There is no clarity on whether R.M. recalls specific instances where the Father posed a risk to her safety. Furthermore, R.M.’s views and preferences have been expressed more than two and a half years since last seeing the Father. Therefore, limited weight should be given to R.M.’s views and preferences.

[115] I reject the Father’s position. For reasons that follow, I am satisfied that if R.M. is removed and returned to the UAE, she will suffer serious harm in the Father’s care.

N. v. F. distinguished

[116] Before turning to my reasons for exercising the jurisdiction under s. 23 of the CLRA, I believe that it is important to address the Father’s submissions regarding the N. v. F. decision. While both cases involve the UAE, the facts are quite distinguishable. In our case, R.M. is a Conventional refugee, on the basis that there is well-founded fear of persecution by reason of membership in a particular social group as victims of gender and family violence. R.M. is 15 years old and has lived in Canada for approximately four years. There are findings from an independent decision-maker, the IRB, that the Mother is credible. There is an Obedience Order issued against the Mother. The Mother has been accused of stealing gold from the Father. There is evidence that the children, including R.M., have experienced physical, emotional, and psychological harm at the hands of the Father.

[117] Unlike the trial decision in N. v. F., 2021 ONSC 416, I am not placing weight on the Mother’s uncertain residency status in the UAE. I am also not unduly comparing our legal system of justice over the UAE’s system, under the guise of child safety. I am applying the factors identified in Ojeikere v. Ojeikere to the facts of this case. I arrive at very different findings because I find that there is evidence that R.M. would be at risk of physical, emotional, and psychological harm if she was returned to the UAE. There is also strong and consistent evidence that R.M. has specific views and preferences as to with whom or where she would like to reside. There is credible evidence led by the Mother regarding her reasons for not returning to the UAE. There was sufficient evidence for the IRB to decide that the Mother had a well-founded fear of persecution and make findings that the Mother and her children cannot be adequately protected from the Father. I find that the case before me is based upon a well-established evidentiary record that allows me to conclude that R.M. would suffer serious harm if she was returned to the UAE.

Section 23 analysis

[118] In assessing the probability that R.M. would suffer serious harm, the following factors should be considered: (i) the risk of physical harm, (ii) the risk of psychological harm, (iii) the views of the child, and (iv) the primary care parent not returning to the home of origin.

Risk of physical and psychological harm

[119] The Mother’s evidence is that the Father was emotionally, physically, and verbally abusive towards her and the children. A psychological assessment report confirms that the Mother exhibited symptoms consistent with her report of multiple traumatic events, and that she was diagnosed with PTSD.

[120] The Mother provided evidence of threatening text messages sent to her by the Father. During questioning, she was challenged by the Father’s counsel on the authenticity of these text messages. Her response has a ring of truth to it:

No. I’m not saying it’s not. Because my daughter was there. She was sitting with me when we received and every -- you know, between every half or every hour we were opening to see what is he writing and what did he send. We will open the three phones and then my daughter’s phone to check what messages did we have and then we will switch them off. And then at the same time, he was calling the family house. He was talking to my father and my father sent me a written statement about it. So it wasn’t false.

[121] While in the UAE, the Mother filed two complaints against the Father for his inappropriate conduct. The charges were dropped.

[122] I have reviewed the transcripts of the Mother’s evidence during questioning, and she was not shaken. Her evidence was consistent with the evidence presented at the IRB and in her affidavit materials.

[123] S.M.’s evidence is that the Father physically abused them, repeatedly. The Father was taking inappropriate pictures of the children. The Father disciplined the children by locking them in the house, other than during their attendance at school.

[124] R.M. tried to poison her Father on three occasions. She wished that he was dead. R.M. confirmed that the Father hit her very hard, and she observed her Mother being physically and verbally abused by the Father.

[125] The Mother and children’s negative sentiments towards the Father are strong and grounded in the evidence.

[126] The IRB believed the Mother, saying that her oral and written evidence was consistent and straightforward. The IRB found the Mother credible. The IRB was moved by S.M.’s testimony. The IRB found that the Mother had a well-founded fear of persecution as victims of gender and family violence. The Mother and children were recognized as Convention refugees.

[127] The IRB’s decision is entitled to significant deference. The IRB has expertise, specialized knowledge, and is required to make decisions based on evidence it finds trustworthy and reliable. The IRB was able to view and listen to the testimonies of the Mother, S.M., and R.M. The IRB found the Mother to be credible. There is a rebuttable presumption that R.M. would suffer serious harm if she was returned to the UAE.

[128] The Father argues that the alleged threatening text messages were fabricated. He has presented a one-page document showing three text messages between February 10 and February 19, 2018. He argues that this demonstrates that none were sent on February 15, 2018, the day that the Mother alleges they were sent. However, in questioning, the Father admitted that in or around February 2018, he possessed two phone numbers, with two sim cards. I am not satisfied that this one-page document is the totality of the text message exchanges between the Father and the Mother. I do not accept the Father’s evidence on this issue.

[129] The Father submits that the presumption highly turns on this text message exchange, as it is the only piece of evidence that substantiates any allegation that the dispute between the Father and the Mother could rise to the level of physical violence.

[130] I disagree.

[131] The threatening text messages were only one aspect of the evidence presented before the IRB. Oral testimony was presented, and the IRB found the testimony to be credible, which presumably included the Mother’s testimony regarding the threatening text messages.

[132] The Father does not specifically address the allegations of abuse against the Mother and the children. Other than a blanket denial, he does not provide any substantive evidence on these determinative issues.

[133] I am not persuaded by the Father’s denials. During questioning, the Father has given us a small glimpse into his way of thinking vis-à-vis his children and his lack of empathy. A shocking example of that occurred when he was asked a question regarding the children being separated from each other if they did not all return together to the UAE. He was specifically asked whether this would have a negative effect on them. He answered: “Okay it might be traumatic for them if they, you know, separate from each other. But it’s not my concern” (emphasis added).

[134] The Father’s lack of concern for the well-being of his children or the psychological harm that they may suffer by being separated from one another speaks volumes about the Father’s feelings towards the children but more importantly, corroborates the evidence of the Mother and the children regarding the Father’s conduct and character.

[135] Regardless, the Father’s evidence falls short of rebutting the presumption. I find that he has not provided persuasive evidence to rebut the presumption that R.M. is at risk of persecution.

[136] The allegations of the Father’s physical, emotional, and psychological abuse have been consistently presented by the Mother and the children, both before the IRB and in these proceedings. The weight of the record before me persuades me that there is substance to the Mother and children’s allegations of abuse made against the Father. On a balance of probabilities, I am satisfied that if R.M. is removed, returned to the UAE, and placed in the Father’s care, she will suffer serious harm.

The views of the child

[137] R.M. was made aware of the Mother’s plan to leave the UAE. She approved the plan at the time and since then, R.M. has never expressed any feelings of remorse or regret in relation to leaving the UAE and the Father. In fact, the evidence demonstrates that it is the complete opposite.

[138] R.M. has no desire to be removed from Canada. She belongs to a group where she feels safe, including her Mother, siblings, and friends. If she were to be removed, R.M. believes that she would not be able to have a future.

[139] R.M. is concerned for her safety if she were to be placed in the care of her Father. She fears her Father. She has memories that the Father abused her, as well as her Mother and siblings.

[140] R.M. has been clear that she does not have a relationship with the Father and her memory of him is negative and traumatic.

[141] R.M. feels safe with her Mother. Her needs are met and she feels supported by her Mother. The Father acknowledged during questioning that the children have a very close and loving relationship with the Mother.

[142] R.M. is at an age where her views and preferences should be given significant weight. She should be given a say in her future. R.M. has been clear in her belief that if she was allowed to remain in Canada, she would feel safe, she would be very happy and she would have a future. Conversely, if she were to return to the UAE in the Father’s care, she believes that she would have no future, and she would feel uncomfortable and unsafe.

[143] Ms. Claridge has been a clinician with the OCL since 1991. She has significant experience in interviewing children. I accept Ms. Claridge’s evidence that throughout her involvement with R.M., she has observed R.M. to be strong and consistent in her views and preferences.

[144] R.M. has been consistent in her views since her arrival in Canada. R.M.’s views that she expressed to the IRB in April 2019 are the same as those expressed to Ms. Claridge in years 2020 and 2021.

[145] R.M. has been very clear in articulating her views and preferences. She felt unsafe while living in the UAE. She also felt that she would have no sense of safety if she was to be returned to the UAE, under the Father’s care.

[146] The Father’s materials lack evidence regarding his relationship with R.M. During questioning, his explanation of the activities that he would enjoy with his children were quite general in nature, leaving me with the impression that he seldom participated in activities with R.M. and her siblings or that he had a real connection with his children.

[147] Surprisingly, at the time that the Father was questioned on November 12, 2020, he had not reviewed Ms. Claridge’s affidavit outlining the children’s views and preferences. One would have expected that his daughter’s views and preferences should have been at the forefront of his concerns.

[148] In my view, R.M.’s views and preferences warrant serious consideration because they are reasonable, consistent, and compelling. I find that if R.M. was returned to the UAE, her hopes and dreams for the future would be shattered and she would likely suffer serious physical, psychological, and emotional harm.

Primary care parent not returning to the home of origin

[149] The Mother is justifiably not returning home. There are three proceedings against her in the UAE: (i) the disobedience within the marriage proceeding; (ii) the stolen gold bars proceeding; and (iii) the custody and access proceeding. The Mother believes that because of some of these proceedings against her, she would be immediately jailed upon her arrival in the UAE.

[150] If she is not jailed and/or released from jail, she would then be forced to return to the matrimonial home and reside with the Father, pursuant to the Obedience Order.

[151] Also, as opined by Mr. Raessi, if the Mother returns with her children, she will likely lose her children’s custody due to the Father’s allegations that she had stolen gold bars and fled the country.

[152] The Father assures the Mother that he would be prepared to assist her in rectifying her legal status in the UAE. Based upon the Father’s conduct in these proceedings, I have no confidence in any of his assurances.

[153] I find that the Mother has established a substantial reason for refusing to return to the UAE and I am satisfied that the Mother will not be returning to the UAE. With the existing legal proceedings that have been commenced against the Mother in the UAE, I find that there is risk of imprisonment or persecution. In my view, for her safety and security, the Mother has no choice but to remain in Canada. The Mother’s refusal to return to the UAE is not voluntary.

[154] The Mother has been R.M.’s primary caregiver. Despite the Father’s claim that he was also involved in the caregiving role, there is a lack of evidence in that regard. The Father does not truly challenge the Mother’s contention that she was R.M.’s primary caregiver.

[155] If R.M. is returned to the UAE without the Mother, she would be deprived of the daily love, care, and support that she receives from her Mother.

[156] During questioning, the Father acknowledged that it would be very disruptive to the children if they were to return to the UAE without their Mother. He further agreed that it would be traumatic for the children to return to the UAE without their Mother.

[157] In his written submissions, the Father notes that the Mother has not presented any evidence “from a psychotherapist to substantiate allegations that the children would suffer psychological and emotional impacts by being separated from their primary caregiver”. He then goes on to concede that expert evidence is not needed and further says that he does not “disagree with the notion that children face serious negative effects from being removed from their primary caregiver.”

[158] I agree that expert evidence is not needed. R.M. has a very close and supportive relationship with the Mother. Conversely, R.M. has no relationship with the Father. She feels safe with the Mother and would feel unsafe in the Father’s presence, to the point where she would try to escape his care. With these strong set of views and preferences from a 15-year-old, coupled with the other evidence in this case, I have no hesitation to conclude that the impact of separation is significant and that the risk of serious harm is established if R.M. was to return to the UAE without her Mother.

Disposition

[159] Pursuant to s. 23 of the CLRA, I am satisfied that the court should exercise its jurisdiction to make a parenting or contact order with respect to R.M.

CONCLUSION

[160] Based on these reasons, the Father’s motion is dismissed.

[161] I find that this court has jurisdiction to make a parenting order or contact order with respect to R.M., pursuant to s. 22(1)(b) of the CLRA because all six (6) criteria have been met.

[162] I also find that this court has jurisdiction to make a parenting order or contact order with respect to R.M., pursuant to s. 23 of the CLRA, because I am satisfied that R.M. would suffer serious harm if she was returned to the UAE.

COSTS

[163] I encourage the parties to agree on the issue of costs. Either party may deliver written submissions within 90 days of the date of the Amended Reasons for Decision (limited to 10 pages excluding Bill of Costs and Offers to Settle). The responding party may deliver their written submissions within 30 days thereafter, with the same page limitation.

M. Smith J Released: March 10, 2022

Appendix

Amendments made March 16, 2022:

• the Reasons for Decision were amended to use the letters S.M., R.M., and H.M., in place of the names of the children, and
• to add the Costs section at para. 163.