ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT

Endorsement / Page d’inscription

Applicant(s) / Requérant(e)(s): Lubna Yousef Abdel Rahmen Aldahleh

Respondent(s) / Intimé(e)(s): Zakaria Abdelrahman Mohammad Zayed (Bayly Guslits, Abeer Abosharia)

Office of the Children’s Lawyer (OCL): Rasim (Sam) Misheal

Endorsement

Heard: November 24, 2023, virtually Date: November 29, 2023

[1] Each party brings a motion. The applicant seeks a myriad of relief discussed briefly below. The respondent seeks orders: (a) requesting the applicant forthwith to deposit the children’s birth certificates and passports with the respondent’s counsel; (b) forthwith returning the children to London; (c) that the children not be removed from London without further order of the court or agreement by the parties; and (d) that the applicant not change her address and the children’s address without advance written notice and written agreement of the parties or court order.

[2] The children are ages 13, 11, and 5. This is a high-conflict case. The respondent alleges that the children were removed wrongfully from Kuwait by the applicant. This allegation is disputed by the applicant.

[3] The applicant issued her application in this proceeding on October 7, 2022. The application has been amended pursuant to an order dated October 3, 2023.

[4] The endorsement of Tobin J. dated May 26, 2023, when dealing with a special appointment motion that was before him that day, noted that when the special appointment was set, that the court was not made aware that this was an international child abduction case within the meaning of r. 37.2, that the pleadings were not forwarded to the OCL as required by r. 8(12), and that the first meeting had not been held as required by r.37.2(5) and (9). Consequently, Tobin J. made various remedial orders including an order appointing the OCL and an order that the trial commence on July 31, 2023.

[5] This is not a Hague Convention [1] case.

[6] The trial was adjourned and eventually set to commence on November 14, 2023 before Sah J. As noted in the endorsement of Sah J. dated November 14, 2023 [2], the trial did not proceed because the applicant brought an oral motion seeking Sah J.’s recusal and the OCL brought a motion to appoint amicus curiae. Sah J. then set out the procedures to deal with both motions. Pursuant to Sah J.’s endorsement dated November 20, 2023 [3], Sah J. appointed amicus to assist the court in its role of ensuring that the trial is orderly and fair to all parties. As described in Sah J.’s reasons, the appointment of amicus was precipitated by the court’s concerns that the applicant “… has been adamant about conducting the case in a manner that risks injustice to the parties and the children” (para. 29). In addition, Sah J. noted the request made by the applicant that this case be transferred to the Supreme Court of Canada with a jury, and the applicant’s request seeking the involvement of the Human Rights Commission and the Ministry of Immigration, Refugees and Citizenship Canada (para. 31). The trial was ordered to commence on December 11, 2023.

[7] Sah J. dismissed the recusal motion for reasons to follow and the said reasons were released on November 22, 2023. [4]

[8] Sah J. had conducted a four-hour trial management conference. [5] The issues for trial were listed in the trial scheduling endorsement form and were summarized by Sah J. in the amicus ruling. [6] In an earlier endorsement [7] Sah J. indicated that the issue for trial was which jurisdiction, Ontario or Kuwait, will decide what is in the children’s best interests.

[9] The trial scheduling endorsement form required leave to bring any further motions. During the hearing of the motions, it was apparent that there was no specific order granting leave. However, it was possible that the parties had understood, when the motions were adjourned with a direction as to filing further material, that leave to bring the motions was implied. Accordingly, in the interests of justice, I advised the parties that the motions would proceed on the basis that leave to bring the motions had been granted.

Applicant’s Motion

[10] The applicant’s motion was brought on the eve of trial. There was no urgency regarding any of the relief sought. On that basis alone, the applicant’s motion should be dismissed.

[11] I do however also address the relief sought in the applicant’s motion on the merits. It is not necessary to summarize in detail the 21 paragraphs relating to the relief sought; rather the relief sought can be characterized as follows:

a. The applicant sought orders dismissing or “cancelling” orders that the court has already made, none of which had been appealed; for example, the applicant requested a dismissal of the OCL’s request to appoint amicus and cancelling all temporary orders; see paras. 3, 4, of the applicant’s motion;

b. The applicant requested relief that is the proper subject of issues to be adjudicated at trial, including the applicant’s request to “dismiss” or “stop” the trial; see paras. 6, 7, 8, 9, 10, and 12 of the applicant’s motion;

c. The applicant sought procedural orders for which there was no evidence justifying the relief sought, including transferring the file outside of London, Ontario, requiring that Sah J. not hear the trial; and an order striking documents pursuant to r. 1(8.2); see paras. 5, 13 and 16 of the applicant’s motion;

d. The applicant sought an order that the trial be heard virtually notwithstanding that at the recent trial management conference, the trial was required to proceed in person with the exception of the respondent who lives in Kuwait and witnesses living out of the country attending virtually [8]; see para. 14 of the applicant’s motion; and

e. A number of requests for relief were merely statements with no specific relief being sought; see paras. 15, 17, 18, and 19 of the applicant’s motion.

[12] The OCL took no position on either motion with the exception that the OCL would support a virtual trial.

[13] There was no basis to interfere with the determination made at the trial management conference conducted approximately one month ago that the trial would proceed in person with a hybrid component for the respondent and out-of-country witnesses to testify remotely. Having said that, the trial judge retains complete discretion over the trial process including whether it should proceed in a different manner than determined at the trial management conference.

[14] It is noted that the applicant referred to a lengthy list of documents in support of her motion, including a form 35.1 affidavit that was in excess of 1,300 pages. The volume of the material relied on by the applicant in support of her motion was unnecessary, unreasonable and in contravention of the province-wide practice direction limiting the material that can be filed on a motion.

Respondent’s Motion

[15] The interim order of Korpan J. dated March 30, 2023 (“the Korpan order”) included an order pursuant to section 40 of the Children’s Law Reform Act that the applicant not change the children’s residence from the London, Ontario address that was specifically stated in the order, to more than 15 kilometres outside of London. The applicant was also ordered to advise the court of any new address should she move, and the applicant was ordered not to travel with the children outside the province of Ontario until further order of the court.

[16] The respondent received notification in early November 2023 from the public school board regarding absences from school. The report from the school board appended to the respondent’s affidavit disclosed parent-approved absences from October 31, 2023 to November 10, 2023 for the two eldest children. It was not clear from the evidence whether the youngest child was attending school.

[17] There is no dispute that when the applicant appeared before Sah J. on November 14, 2023 for the first day of trial, that she appeared virtually rather than in person as required. The respondent deposes that the applicant disclosed to the court that she and the children were in Ottawa and that she pointed her camera at the children. In her endorsement, Sah J. noted that when probed as to her whereabouts: that the applicant told the court that she was zooming in from the Supreme Court of Canada; that she turned the camera to confirm her location and to demonstrate that the children were with her; that she told the court that she has not moved and that she maintains her apartment and continues to pay rent; and that she told the court that London is unsafe, racist and biased. [9]

[18] In her affidavit at para. 26, the applicant deposes that she “TRAVELED (NOT VISIT) [sic]” to Ottawa and that she did so to find a “solution from the government who will take [sic] the fair decision.”

[19] The applicant provides no evidence as to her intentions about returning to London with the children. She fails to disclose the address where she is staying with the children. It is not clear on the evidence whether the children are in school, or attending school virtually, or not attending school at all. During her submissions, the applicant focused entirely on issues that are to be decided at trial. The applicant failed in any meaningful way or at all to address the relief sought in the respondent’s motion.

[20] The applicant’s behaviour, given the Korpan order, raises legitimate concerns regarding the applicant’s future compliance with court orders.

[21] I do not view the applicant’s behaviour as being compliant with the Korpan order. The intention of the Korpan order was to define the residence where the children reside and also to require the applicant to keep the court and the parties advised as to the address where the children are residing. Further, the removal of the children from school with no rational explanation as to why the applicant and children are in Ottawa or for how long, raises concerns about conduct that is not in the children’s best interests. It is disingenuous for the applicant to claim compliance with the Korpan order by maintaining an apartment in London, while at the same time staying in Ottawa with the children at an undisclosed location for an undefined period of time and for reasons that are bereft of any rational purpose.

[22] Given the applicant’s conduct and viewed in the context of this court having identified this case as falling within the ambit of r. 37.2 (international child abduction) where the Hague Convention does not apply, I make the order below that includes requiring the children to be returned to London, Ontario and for the applicant to surrender the children’s original passports and birth certificates.

Order

[23] I make the following temporary order pursuant to the Children’s Law Reform Act:

1. The applicant forthwith shall return the children to London, Ontario, and the applicant forthwith shall confirm in writing to counsel for both the OCL and the respondent that she has done so and that the children are currently residing at 803-724 Fanshawe Park Road East, London, Ontario. The children’s place of residence shall not be changed from London, Ontario;

2. The applicant shall ensure that the two eldest children, Baraa and Lujain, and also the youngest child Mariam, if that child was attending school, resume attending in-person at their school in London, Ontario. The applicant forthwith shall confirm in writing to counsel for both the OCL and the respondent that all the children who were attending school have resumed in-person attendance at their school in London, Ontario;

3. Pending trial and pending final judgment having been rendered in this case: a. The applicant shall continue to comply with paras. 1 and 2 of this order; b. Subject to para. c., the applicant shall not remove the children from London, Ontario for any reason except on order of the court or written agreement of the parties and the OCL; c. The applicant may travel with the children outside of London, Ontario but only if: i. the travel is within Ontario; ii. the travel occurs on a non-school day; and iii. the applicant provides at least 10 days’ written notice to both counsel for the respondent and the OCL confirming the address where the applicant and children will be staying and for how long; and d. The applicant shall advise both counsel for the OCL and the respondent in writing forthwith if there is any change in the children’s residential address, and any new address shall be in London, Ontario;

4. The applicant forthwith shall deliver to the respondent’s counsel all of the children’s original birth certificates and all of the children’s original passports, whether Canadian or Jordanian or otherwise, and the respondent’s counsel shall: a. provide to the applicant a receipt describing each birth certificate and passport delivered by the applicant; and b. within 14 days of the delivery of the birth certificates and the passports, make arrangements with the clerk of this court to deliver to the court all of the children’s original birth certificates and passports;

5. The clerk of this court shall retain the children’s original birth certificates and passports and shall not release the said documents, except as ordered by the court;

6. The temporary order of Korpan J. dated March 30, 2023 shall continue to be in full force and effect except as varied by this order;

7. The applicant’s motion dated November 17, 2023 is dismissed;

8. There shall be no further motions in this case unless permission to bring the motion has been obtained from the court in advance, and unless the court orders otherwise, the permission must be obtained before any motion material has been served and filed. Unless the court orders otherwise, the permission shall be obtained by serving and filing only a form 14B motion, limited to four typed pages double-spaced and minimum font 12, describing the relief to be sought in the intended motion and the grounds for same; and

9. The costs of both motions are reserved to the trial judge.

“Justice V. Mitrow”

Justice V. Mitrow

[1] Within the meaning of r. 37.2(3), this is not a case governed by Article 11 of the Convention on the Civil Aspects of International Child Abduction.

[2] Endorsement of Sah J. dated November 14, 2023, Aldahleh v. Zayed.

[3] Amicus ruling - Aldahleh v. Zayed, 2023 ONSC 6540.

[4] Recusal motion, Aldahleh v. Zayed, 2023 ONSC 6553.

[5] Ibid, footnote 3 amicus ruling, para. 21.

[6] Ibid, footnote 3 amicus ruling, para. 12.

[7] Endorsement of Sah J. dated October 19, 2023, Aldahleh v. Zayed, paras. 7, 22.

[8] Ibid, footnote 2, endorsement of Sah J. dated November 14, 2023.

[9] Ibid, footnote 2, endorsement of Sah J. dated November 14, 2023, page 2.