Court File and Parties

COURT FILE NO.: FS-21-24032

DATE: 20221014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raha Mehralian

AND:

Michael Dunmore

BEFORE: Justice Papageorgiou

COUNSEL: Paula L. Bateman, for the Applicant

Michael Stangarone, for the Respondent

HEARD: May 31 and June 9, 2022

ENDORSEMENT

[1] Raha Mehralian (“Raha”), who is a permanent Canadian resident, and Michael Dunmore (“Michael”), who is a Canadian citizen, are married, and M.R.D., who is Canadian citizen, is the child of their marriage. Pursuant to s. 40 of the Children’s Law Reform Act,[^1] Michael asserts that M.R.D. should be returned to Oman, which is not a Hague signatory state. The relevant provisions in the CLRA are set out in Schedule “A” to this endorsement

[2] Before the court are motions to determine this court’s jurisdiction with respect to M.R.D. For the reasons that follow, I am directing a trial of an issue to determine this jurisdictional issue and several related and ancillary matters.

[3] Simply for the purposes of explaining why a trial of an issue is required, I make the following findings of fact and law, which are not meant to create any issue estoppels. These findings are based on the affidavit materials filed for the jurisdiction motion.

[4] Before M.R.D.’s birth Michael and Raha were habitually resident in Muscat Oman.

[5] In March of 2020. Michael and Raha came to Canada for a holiday, but they remained in Canada beginning of 2021 because of travel restrictions due to the COVID-19 pandemic.

[6] Within a few weeks of M.R.D. being born, the family returned to Oman, and they remained there until April 2021 when they returned to Canada after Michael lost his job. He says that they had agreed that their return to Canada was temporary to permit him to obtain another job in Oman, after which they would return to Oman. Michael says that upon his obtaining a job, Raha refused to return to Oman contrary to their agreement and settled intention. Michael takes the position that M.R.D.’s habitual residence was not Ontario but Oman.

[7] In contrast, Raha says that they initially travelled to Toronto in March 2020 because she and Michael discussed relocating to Toronto and raising their family there. As part of this plan, Michael would write the Ontario bar exam, and he would continue to work remotely for his employer in the U.A.E. Once he passed the Ontario bar, he would then look for work in Canada and the parties would settle in Toronto on a permanent basis.

[8] Raha also says that Michael abused her physically throughout the marriage, and that he had a problem with excessive alcohol use. She has described the details of many physical altercations and abusive behavior including Michael breaking her phone and laptop and kicking her out of their home with no shoes on in the middle of the night. Raha says that the final assault occurred on May 30, 2021, when she was changing M.R.D. and Michael became angry, pushed her to the ground and kicked her. She left the room and called her sister who called the police. She says that Michael then took her phone and disconnected the internet. He then physically attacked her in front of M.R.D. The parties separated, and Michael was arrested. Charges of assault and harassment remain pending.

[9] Michael says that Raha orchestrated the assault in May 2021 in furtherance of a plot to remain in Canada contrary to their agreement and settled intention.

[10] The last time the parties came to Ontario was on April 4, 2021.They then separated on May 30, 2021.

[11] On June 2, 2021, Michael commenced a proceeding in the Ontario Court of Justice (“OCJ”). He brought an urgent 14B motion requesting that a motion be scheduled to place M.R.D. in his care, in the alternative to have M.R.D. reside with each parent on an equal basis, and in the further alternative that Michael have liberal and generous parenting time.

[12] Raha brought her own 14B motion requesting an Order that the OCJ proceeding be stayed. Her position was that Michael had brought his action in the wrong court principally because the OCJ did not have jurisdiction to deal with the significant assets that Michael acquired in Canada during their relationship and in respect of which she was seeking equalization.

[13] On June 11, 2021, Justice Gilmore of the OCJ released a short endorsement which stated:

I take it from the number appearing on the response to the response to the original 14B-21-15960—that this matter has now been properly issued. If I understand the original request correctly, it is a request for an urgent motion. However, the materials seem to support the notion that Ontario does not have jurisdiction to do anything. I disagree that the Ontario court is without jurisdiction. The child was born here and has been living here and has no domicile in the mid-east except whatever father may find his next employment. Ontario has jurisdiction. The respondent claims that this is a Superior Court matter because property was mentioned in the materials. The matter over which this Court has been asked to rule is parenting related. If there is a divorce and/or a property claim in the future, counsel will have to determine at that time which court at that time has jurisdiction. The urgency in this matter arises because the applicant is leaving the country for new employment at the end of June and wishes some certainty as to parenting before that happens. I can give the parties motion time on June 24 at 2:45.

[14] On June 17, 2021, Michael then commenced an Application in Oman for determination that Oman had jurisdiction over M.R.D., for custody, as well as for divorce and on June 18, 2021, he withdrew his OCJ proceeding with Raha’s consent.

[15] On June 18, 2021, Raha commenced this proceeding in the SCJ.

[16] There have been 11 endorsements made by the SCJ in this matter between June 2021 and June 2022. There have been motions and case conferences relating to Michael’s parenting time, spousal support, and child support, as well as various endorsements relating to the scheduling of this motion.

[17] On October 17, 2021, Justice Faieta ordered that this matter proceed to a case conference to canvass the issue of the Court’s jurisdiction to hear a motion for child support and other matters.

[18] On November 9, 2021 at a case conference before Justice Kimmel, the parties settled the issue of child and spousal support without prejudice to their positions including Michael’s position that Ontario does not have jurisdiction. The long motion regarding jurisdiction was then scheduled as a two-day motion commencing March 24, 2022 as reflected in Justice Kimmel’s November 9, 2021 endorsement.

[19] On March 4, 2022, Justice Faieta established a timetable for the delivery of materials which involved Michael serving his materials on March 4, 2022, Raha serving responding material by March 14, 2022 and Michael serving reply material by March 17, 2022. He also ordered cross examination on these materials to occur on March 18, 2022.

[20] On March 23, 2022, Justice Nakonechny adjourned the long motion to May 31, 2022 before her, if she was available.

[21] The parties uploaded materials to Caselines which consisted of over 4000 pages of material including the following:

Applicant’s Materials:

Affidavit of Raha Mehralian dated March 14, 2022;

Affidavit of Abdul Redha Al Lawati dated March 10, 2022 (expert)

Affidavit of Ali Al Rashid dated April 14, 2022 (expert);

Affidavit of Ali Al Rashid dated May 8, 2022 (expert);

All of the material filed in the Omani court including the Respondent’s first instance materials, the Applicant’s first instance materials, as well as the court of appeal materials filed by both in Oman;

Respondent’s Materials:

Affidavit of A. Carlon dated February 15, 2022 (expert);

Affidavit of D. Hamade dated March 1, 2022 (expert)

Affidavit of Trevor Andrew John Hayes dated March 3, 2022 (the Respondent’s brother-in-law)

Affidavit of Michael Dunsmore sworn March 4, 2022

Affidavit of Paul Douglas Dunsmore dated March 4, 2022 (the Respondent’s father)

Affidavit of Michael Dunsmore dated March 8, 2022

Affidavit and expert opinion of Abdul Redha Al Lawati dated March 10, 2022 (expert)

Affidavit of Farrah Hudani dated March 11, 2022 (expert)

Affidavit of Michael Dunsmore dated March 17, 2022;

Affidavit of Abdul Redha Lawati dated March 17, 2022 (expert)

Affidavit of Stephen Ellwood dated March 31, 2022 (expert jointly retained to address the issue of text messages)

Affidavit of Al Lawati dated April 28, 2022 (expert)

[22] Over 20,000 messages were recovered by the jointly retained expert, and the parties have excerpted texts which they determined were relevant with some certified translations and some translations which are not certified but interpreted by Raha.

[23] Based upon the endorsements, it does not appear that the parties ever advised the judges scheduling this matter of its complexity, the credibility issues or the volume of materials. The only Order made permitting evidence to be filed (apart from the technology expert) was Justice Faieta’s Order dated March 4 which contemplated one set of materials from Michael, one set from Raha and one reply by Michael. There is no mention of any expert reports in any of the endorsements (apart from the technology expert) let alone the fact that there would ultimately be 8 expert reports which conflict in many material ways. There is no mention of any permission given to the parties to file materials after March 17, 2022 which they have also done. As well, the timing set out in Justice Faieta’s endorsement, which provides for materials to be served all within a two week period, suggests that he understood the proposed materials to not be complex.

[24] On April 27, 2022, Justice Nakonechny addressed issues relating to the party’s refusals motion, filing of the transcript evidence and the joint expert who was to analyze Raha’s text messages. She also reduced the length of the time which the motion would be argued from two days to one day. She also made an order permitting the parties to file facta up to 50 pages long.

[25] Justice Nakonechny was unavailable and so the motion proceeded before me.

[26] In my view, the sheer volume and nature of the of materials make this matter an inappropriate matter to bring as a motion (even a long one). Even if this case could be resolved in this way, there are material credibility issues which cannot be fairly and justly determined on this record.

[27] At the commencement of the motion’s argument, I canvassed with the parties the issue of why this was scheduled as a motion and not an oral hearing, given the significant credibility issues, the expert opinions which conflicted, as well as the volume of materials. I referenced in particular the Court of Appeal’s decision in Geliedan v. Rawdah,[^2] where the Court concluded that viva voce evidence should have been obtained given the facts of that case which involved disputed evidence as to the circumstances of the mother being in Canada.

[28] In Geliedan, the father said that the mother moved to the U.A.E. willingly to permit the father to establish a closer relationship with the child. He said that she fled after 14 months without his consent thus improperly removing the child to Canada. The mother said that she only attended in the U.A.E. for a two-week vacation and that the father seized the child’s and her passport and prevented her return to the U.K. In my view, the disputed evidence in Geliedan is not remotely as complex as it is in the case before me.

[29] In Geliedan v. Rawdah, the Court of Appeal specifically noted that there are important differences between applications pursuant to the Hague Convention and pursuant to section 40 of the CLRA. In that regard, the Court indicated that the determination of wrongful removal or retention in section 40 is not tied to habitual residence and the court is given broad discretionary powers pursuant to section 40, while the Hague Convention makes a removal order mandatory if a child is found to be habitually resident elsewhere. The Court noted at paragraph 38 that when considering ordering a child to be returned to a jurisdiction which has not entered into the Hague Convention, “there is no basis to assume that the receiving state will determine the custody and access issues based upon the child’s best interests.” In my view, the fact that there is discretion as opposed to an automatic removal order pursuant to the Hague Convention makes a contextual analysis of the facts all the more important. In my view many of the facts in the immediate case cannot be fairly and justly resolved on this paper record.

[30] See also: Kasigiannis v. Kottick-Katsigiannis,[^3] where the Court of Appeal stated that although these kinds of applications are to be heard expeditiously and that this militates in favour of such cases being decided on affidavit evidence to avoid undue delay, “if credibility is a serious issue, consideration should be given to having the evidence of witnesses whose credibility is in issue (usually the mother and father) heard viva voce.”

[31] See also Korutowska-Wooff v Stewart Woof,[^4] a case involving an Application pursuant to the Hague Convention. Although the Court of Appeal did not accept that viva voce evidence was required in that particular case, Justice Feldman stated at paragraph 19 “..there may be room and even need in some cases for the trial of an issue relevant to the Convention, particularly where the affidavits and cross-examinations are wholly conflicting and credibility findings must be made in order to fairly determine the critical issues necessary to decide whether a child is to be returned to another jurisdiction and to another parent, e.g. respecting serious harm to the children if they are returned.”

[32] Most of the cases provided by the parties which involved any significant credibility issues have proceeded by way of trial, and not motion.[^5]

[33] Both counsel indicated that they were not counsel of record at the commencement of this matter when the process for this hearing was originally selected. Michael’s counsel advised that he had just completed a three-week trial in a not dissimilar case. The parties advised that they nevertheless very much wished to proceed with the motion given the resources which they had expended in preparing the materials.

[34] I agreed that I would hear the motion, but I advised counsel that a hearing with viva voce evidence could be required.

[35] I directed the parties to first address the issue of jurisdiction, after which the enforceability of the Omani divorce would be addressed. However, the jurisdictional argument was not completed on May 31, 2022. As a result, I scheduled one additional day for the continuation of the jurisdictional argument for June 9, 2022.

[36] At the commencement of the June 9, 2022 continuation, the parties handed up two additional expert reports which were related to the Omani’s court’s decision awarding Raha custody and the impact of that decision. They also advised me that Raha had decided to appeal the Omani divorce and as a result, the issue of the enforcement of the Omani divorce did not proceed at all. Indeed, most of June 9, 2022 was required for the jurisdiction argument in any event.

[37] I have now heard the motion and reviewed all the materials and concluded that this is far too complex a matter to resolve as a motion without hearing viva voce evidence. It is not an appropriate case to proceed in a summary matter.

[38] In order to appreciate the need for a hearing it is also important to keep in mind the complexity of the issues that the parties have asked this court to address, which are easy enough to state but far from easy to resolve on a paper record. The issues are: first, does this court have jurisdiction to make custody orders in this case?, and second, should this court exercise its discretion to make an Order pursuant to section 40 of the CLRA returning M.R.D. to Oman, if it determines that M.R.D. has been wrongfully retained in Ontario, or if it determines that it does not have jurisdiction or if it declines jurisdiction.

[39] As set out in Dovigi v. Razi, 2012 ONCA 36, [2012] O.J. No. 2418 (O.C.A.), there are four ways that an Ontario Court may assume jurisdiction in custody disputes:

a. Pursuant to section 22(1)(a) where a child is habitually resident in Ontario;

b. Pursuant to section 22(1)(b) where the child is physically present in Ontario and other requirements are met;

c. Pursuant to section 23 where a child is physically present in Ontario and the court is satisfied that the child would on a balance of probabilities suffer serious harm under certain specified conditions in the CLRA; and

d. Pursuant to its parens patriae jurisdiction which is specifically preserved by s. 69 of the CLRA.

[40] As noted above, section 22(1)(a) of the CLRA states that the Court has jurisdiction if M.R.D. was “habitually resident” in Ontario at the time when Raha commenced her Application in June 2021. The parties disagree on the definition of “habitual residence”.

[41] Michael references a considerable body of caselaw decided pursuant to the Hague Convention which directs that habitual residence is a question of fact to be decided based upon all of the circumstances. Such caselaw directs that it is the place where the parties last resided with a “settled intention”, which is an intention to stay in a place temporarily or permanently for a particular purpose such as employment, health, family etc.[^6] Michael concedes that there is no appellate authority which specifically holds that the Hague common law definition of habitual residence is applicable to applications brought pursuant to section 40, but his materials do reference lower court decisions which hold that the definition of “habitual residence” in section 22 is the same as the definition applied in Hague Convention cases.[^7]

[42] Oman is not a signatory to the Hague Convention. Raha argues that the common law definition of “habitual residence” developed in cases decided pursuant to the Hague Convention is not applicable because the test for “habitual residence” is specifically contained in section 22, and is based upon the last place where she, Michael and M.R.D. resided, which is Ontario. Raha’s position is not without support in the caselaw. See for example, Hibbert v. Escano,[^8] where the Court states that “if the statutory test is not made out, the court cannot resort to a common-law test to ground jurisdiction.” See also Dovigi v. Razi,[^9] where the Court gave similar directions with respect to the common law definition of “habitual residence” when it stated “it is elementary that a statutory definition must be applied when interpreting the very term defined. The phrase ‘a court shall only exercise its jurisdiction’ in s. 22. makes clear that the statute has superseded the common law.”

[43] As set out above, there is a significant credibility issue as to the parties’ intention to reside in Ontario, throughout. The issue of M.R.D.’s habitual residence cannot be fairly determined on a paper record.

[44] There is also the issue of the applicability of section 22(1)(b) relied upon by Raha in her factum which permits the court to exercise jurisdiction with respect to a child not habitually resident in Ontario if the court is satisfied of certain conditions, all of which must be present.[^10]

[45] These conditions include that: (a) the child is physically present in Ontario, (b) there is substantial evidence as to the best interests of the child, (c) no application for custody is pending elsewhere where the child is habitually resident, (d) no extra provincial order in respect of custody and access has been recognized in Ontario, (e) the child has a real and substantial connection to Ontario; and (f) that on balance of probabilities it is appropriate for jurisdiction to be exercised in Ontario.

[46] Michael argued that since the Omani Court of Appeal ultimately determined that Oman had jurisdiction and remitted the matter to be heard by its lower court who has now granted Raha custody, the criteria set out in section 22(1)(b)(iii) has not been met. However, the precise wording of section 22(1)(b)(iii) is that “no application for custody of the child is pending before an extra-provincial tribunal in another place where the child is habitually resident.”

[47] There is no evidence of any pending application for custody in Oman; after the Omani Court of Appeal determined that its court had jurisdiction, it remitted the matter to its trial court which determined custody in Raha’s favour. The legislature chose to use the word “pending” instead of “determined” and I must assume that it did so for a reason. Indeed, the condition set out in section 22(1)(b)(iv) (that “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”) would arguably be superfluous if the mere fact of an Order made by a court in another jurisdiction made resort to section 22(1)(b) impossible.

[48] The two expert reports handed up on June 9 related to the very issue of what will happen in Oman in the future and these reports conflict. Raha’s expert says that she now has a final custody order, Michael’s expert says that the Omani decision is only the first step in the custody battle. If the issue of custody has been determined as the Omani court decision suggests, then in my view Raha may seek to lead evidence and rely upon section 22(1)(b). However, I am in no position to assess whether there will be any further custody proceedings in Oman because of the conflict in the expert evidence on this issue.

[49] There is also the issue of the potential impact on M.R.D. of an Order directing that he be returned to Oman which may be relevant to a section 22(1)(b) analysis.

[50] Courts have recognized that an order which results in removing a child from a primary caregiver can be damaging to a child. In Thomson v. Thomson,[^11] the Court stated that “the younger the child the greater the need for the court’s concern.” See also N. v. F., 2021 ONCA , leave to appeal to the SCC granted, in part with respect to the issue of whether the trial judge made an error because he failed to properly assess the harm of a potential involuntary separation of the children from their primary caregiver if she was unable to obtain residency in the U.A.E. In that case, the trial judge preferred the father’s expert evidence regarding the steps the mother could take to obtain residency in the U.A.E which included sponsorship by her ex-husband. The ex-husband had made an offer to settle which included securing a residency visa for the mother but the mother refused this offer. The trial judge accepted the father’s expert evidence that an agreement between the parties in this regard could be incorporated into an order of a Dubai court and would be enforceable by the court. The trial judge did not accept the evidence of the mother’s expert on this issue.[^12] Importantly, the trial judge in N. v. F. was able to assess the experts through viva voce evidence. As well, the trial judge in N. v. F. had the opportunity to assess the father’s intentions with respect to securing residency for the mother and his offer of generous parenting time for the mother.[^13]

[51] M.R.D. is under two years of age and Raha is currently (and the evidence strongly suggests that she has always been) M.R.D.’s primary caregiver. She has no status in Oman. The Omani Court has awarded her custody in a contested proceeding, which reveals its view that the child should primarily reside with Raha. While Michael asserts that he will make every effort to assist Raha in obtaining the necessary residency in Oman, this court is unable to assess the sincerity of Michael’s stated commitment on the basis of affidavit evidence.

[52] Raha’s allegations of abuse are also relevant to the Court’s consideration pursuant to section 22(1)(b). As noted by the Supreme Court of Canada in Barendregt v. Grebliunas,[^14] family violence is a significant factor affecting the best interests of children. Although this was a relocation case, the principle is equally applicable to a best interests analysis pursuant to section 22(1)(b). The point, once again, is that these factual issues are not fairly decided by a paper record.

[53] Moreover, there are additional legal issues that Raha might argue. For example, Raha has argued that Michael has attorned to the Ontario jurisdiction. Michael argues that attornment does not apply. In Murray v. Ceruti,[^15] the Court directed that:

it is important to have regard to the role of attornment in a jurisdictional analysis under the CLRA. Attornment is not referenced in the CLRA. At most, it is a factor to be considered in the analysis mandated by s. 22(1)(b), and in the analysis of whether to decline jurisdiction under s. 25. On the facts of this case, it is not dispositive of either issue.

[54] In my view, such issues are not clear and should not be resolved in the absence of a full factual analysis.

[55] There is also the issue of whether the immediate proceeding is res judicata having regard to the proceedings in the Ontario Court of Justice. Once again, this is an issue that requires a viva voca hearing.

[56] Finally, both with respect to section 22(1)(b) and the discretionary aspect of section 40, in my view there is scope for this court, on its own motion, to Order a section 30 assessment, in particular because of the potential for an involuntary separation from Raha. I refer the parties to Justice Fran Kiteley’s decision in Joseph v Molnar, [2021] O.J. No. 3422 where she made such order in a different context on her own motion indicating that if there was information which the court required then it had to be obtained even if the parties had not done so.

[57] As well, I have just been notified that Raha is no longer represented by counsel. It is M.R.D.’s life which is the focus of this application and not Raha’s even though it will impact her. Therefore, in my view, it is appropriate to consider whether the Office of the Children’s Lawyer should be asked to act as M.R.D.’s lawyer.

[58] I have not made any decisions on these issues but ask that the parties provide me written submissions within 30 days.

[59] I shall remain seized of this matter, and I am directing a trial of an issue based on the material filed on this motion to resolve the following issues:

What were the settled intentions of the parties:

a) Why did Raha and Michael travel to Ontario in March 2020 and why did they remain here?

b) Why did Raha and Michael travel to Oman in January 2021?

c) Why did Raha and Michael travel back to Ontario in April 2021?

Abuse

d) Did Michael abuse Raha during the marriage?

e) Did an assault take place on May 30 2021?

f) Did Raha have a plan to improperly establish Toronto as M.R.D.’s habitual residence prior to the separation? Did she fabricate the assault in furtherance of this plan?

Michael’s Residency in Oman

g) Was Michael legally required to leave Oman in April 2021 when he lost his job?

h) Were Michael, Raha and M.R.D. legally permitted to stay in Oman in April 2021 after Michael lost his job?

Michael’s OCJ 14b Motion

i) What communications did the parties and their counsel have prior to Michael’s withdrawal of Michael’s OCJ Application?

Raha’s Residency Status in Oman

j) Is Michael’s stated commitment to assist Raha with residency in Oman sincere?

k) How likely is it that Raha will successfully obtain residency in Oman?

l) If Raha ultimately does not obtain residency in Oman, will this constitute a harm to M.R.D.?

[60] Order accordingly.

[61] If either parties seek the costs at this point, they may make submissions with both due 30 days from now at the same time as their submissions on whether M.R.D. should be appointed his own lawyer and/or whether a section 30 assessment should be ordered.

[62] After the parties have consulted, I may be spoken to settle the terms of the order for a trial of an issue. The parties may get in touch with my judicial assistant to schedule a date for a five-day viva voce hearing.

Papageorgiou J.

Date: October 14, 2022

Schedule “A”

The relevant provisions in the CLRA provide 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. 2020, c. 25, Sched. 1, s. 6.

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. 2020, c. 25, Sched. 1, s. 6.

[^1]: S.O. 2020, c. 25.

[^2]: 2020 ONCA 254.

[^3]: 2001 24075 (ON CA), [2001] O.J. No. 1598 at para 59 cited in Garelli v. Rahma, 2006 13555 (ON SC), 2006 CarswellOnt 2582 at para 9.

[^4]: 2004 5548.

[^5]: See: Bolla v. Swart, 2017 ONSC 1488, Hibbert v. Escano, 2010 ONSC 1445, N. v. F., 2020 ONSC 7789, aff’d 2021 ONCA 614, Volgemut v Decristoforo, 2021 ONSC 7382, Hibbert v. Escano, 2010 ONSC 1445. See also Ierullo v. Ierrullo, 2006 33301 (ON CA).

[^6]: Korutowska-Wooff v. Wooff, 2004 5548 (ON CA), [2004] O.J. No. 3256 (C.A.) at para 8.

[^7]: Solem v. Solem, 2013 ONSC 1097 at para 33, Medhurst v. Markle (1995), 1995 9273 (ON SC), 26 O.R. (3d) 178 (Gen Div) at paras. 25-26, Rogala v. Rogala, [2001] O.J. No. 1683 (S.C.J.) at paras 41-52.

[^8]: 2010 ONSC 1445 at para 65 citing also Wang v. Lin, 2013 ONCA 33 at para 51

[^9]: 2012 ONCA 361 at para 18

[^10]: Murray v. Ceruti, 2014 ONCA 679 at para 24.

[^11]: 1994 26 (SCC), [1994] 3 S.C.R. 551 at para 83.

[^12]: See also Okeiker v Okeiker, 2018 ONCA 372 at para 89 where the Justice Laskin also took into account the fact that the mother would not return to Nigeria if a return order was made and that this would certainly “affect the children emotionally and psychologically. They would be separated from the parent who has been their primary caregiver for most of their lives.” While this case involved the application of section 23, as stated above, in my view such concerns are also relevant to section 22(1)(b) and the best interests consideration, if Raha may have resort to section 22(1)(b). See also the following cases decided pursuant to the Hague Convention where courts found that children were abducted and not habitually resident in Ontario, but took into account a separation from the primary caregiver in dismissing an application for the child to his habitual residence: Hage v. Bryntwick, 2014 ONSC 410 at paras 62-63, Chan v. Chow, 2001 BCCA 276,

[^13]: Although the Court’s consideration of the above issues in N. v. F. was with respect to section 23 of the CLRA, which is not in issue in this case, in my view, potential harm to M.R.D. as a result of Raha’s precarious residency status in Oman may also be relevant to the balance of convenience and/or best interests test set out in section 22(1)(b), if Raha may resort to section 22(1)(b). The allegations of abuse by Raha may also be relevant, if proven.

[^14]: 2022 SCC 22, at paras 9, 116, 142, 143, 144, 145, 146, 150

[^15]: 2014 ONCA 679