Court File and Parties
COURT FILE NO.: FS-22-29043 DATE: 20230306 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Amaal Mohammed Mahmood Nawasreh, Applicant – and – Mohammed Bani-Ahmad, Respondent
Counsel: Rana Charif, for the Applicant Reginald M. McLean, for the Respondent
HEARD: February 27, 2023
FL Myers J
Endorsement
This Proceeding
1The respondent father moves for a stay of this application on the basis that this court has no jurisdiction to hear it. He submits that the courts of the Hashemite Kingdom of Jordan have already ruled on the issues of divorce, custody, spousal support, and child support with full participation by both parties. There is no equalization in Jordan. But, he submits, the applicant mother has rights to a dowry there. In addition, he submits that Jordan is the more appropriate forum for resolution of the parties’ issues in any event.
2The applicant responds with a cross-motion seeking, among other things, orders:
a. recognizing this court’s jurisdiction under s. 22 of the Children’s Law Reform Act, RSO 1990, c C.12;
b. refusing to recognize the divorce, custody, and support orders made by the Sharia Court in Jerash, Jordan;
c. requiring the respondent to lift the travel ban order made by the Jordanian Court that is preventing the applicant mother from bringing the children home despite the Jordanian Court having awarded her custody of the children;
d. for interim parenting in favour of the applicant with only supervised parenting rights for the respondent;
e. for interim spousal and child support in excess of the amounts of spousal and child support she obtained in the Jordanian proceedings;
f. restraining the respondent from selling, transferring, encumbering, or depleting his assets;
g. preventing the respondent from communicating with or coming near the applicant; and
h. allowing the applicant to amend her Application to rely on the CLRA and the Family Law Act, RSO 1990, c F.3 in addition to the Divorce Act, RSC 1985, c 3 (2nd Supp), as currently pleaded.
3Unfortunately, I am unable to make sufficient findings on the evidence currently adduced before the court to determine the issues. I understand that the respondent says she is impoverished and on that basis she resists a trial of the jurisdiction issues. She says she only participated in the Jordanian proceedings and sought custody and support there because she was desperate for funds due to the respondent’s refusal to support her or their children. She submits that once I rule that the children were habitually resident here and are being held in Jordan without her consent, I can order the respondent to return them to Ontario, order interim support, and then this matter can proceed.
4I explain below what I see as being in issue. I will set out the questions with which I need help. I expect that the most efficient and affordable way to answer the questions is a quick hybrid trial rather than a lengthy out-of-court motion processes. But I will leave the ultimate determination of the format to counsel to discuss and then resolve with me at a scheduling conference.
The Basic Facts
5I am not making findings today. However, a few of the issues are more readily soluble than others.
6The parties are all from Jordan. The respondent has lived here for decades. He has an established business here. His parents and other family members followed him here over the years. While he has business interests in Jordan that lead him to travel there once or twice a year, his Ontario residency is not in doubt.
7The parties married in Jordan in 2012. They have three elementary school aged children. All the children were born in Jordan. As the children came of age, they started school in Jordan.
8The applicant testifies that she could not bring the children to join the respondent in Ontario until 2018. She says that before she could come here, Immigration Canada required the respondent to finalize his divorce from his prior spouse.
9Neither factum makes note of the fact that if the parties were married in 2012 but the husband’s divorce from his prior spouse was not granted until sometime closer to 2018, their marriage is likely not recognized here due to the laws of bigamy. Absent legal precedents on point, I do not accept the respondent’s submission that if Immigration Canada recognized the new marriage after the husband obtained his divorce from his prior spouse, the law of Canada recognizes bigamous marriages in abeyance that spring into validity once the prior marriage is dissolved.
10If the parties are not legally married here, then I question the relevancy of the Jordanian divorce proceedings. Currently, the applicant seeks corollary relief under the Divorce Act only. Does that statute even apply? I grant leave for the applicant to amend her application to plead the CLRA and the FLA as sought. There is no prejudice to the respondent arising from the proposed amendments.
11If the parties were never considered validly married here, does the applicant have an equalization claim available? I do not know if the Jordanian Court was told about the bigamy issue or if it would have changed things there. If the laws of Jordan recognize polygamous marriage, that may provide the applicant rights of a “spouse” under s. 1 (2) of the FLA.
12The parties have different versions of how the applicant and the children came to live here. The applicant says they moved here permanently in May, 2018 to join the respondent. But the respondent says that they only came for one year so the children could qualify for citizenship. He says they were then stuck here due to COVID-19.
13The respondent’s math seems a bit off. If the family came here in May, 2018 for one year, why did they not go back to Jordan in May, 2019, or perhaps at the end of June after the school year ended? The pandemic did not shut down travel until March, 2020.
14By May, 2021, when the next key event occurred, the children had been here for three years. They were in school. They had friends. They participated in extra-curricular activities. Subject to resolving the credibility question about the purpose of the initial travel here in 2018 perhaps, the children’s habitual residency in Ontario in May, 2021 does not appear to be much in doubt.
15In May, 2021, the applicant says she decided to take her children for a four-month vacation to see her parents in Jordan. She bought return plane tickets for them to come home in August before school started in September. She says that she booked the trip without telling the respondent because, by that time, he had been seriously physically violent with her among other abuse claims.
16The applicant says that when the respondent learned of her travel plans, he booked himself a ticket to Jordan on their flight so that the family would go together. He demanded that the applicant give him the children’s passports.
17The respondent denies that the applicant was going to Jordan for a time limited, if lengthy, vacation. He says that she was moving back to Jordan with the children permanently to reconcile the marriage. He has adduced evidence that the applicant had some 18 suitcases at the ready.
18In Jordan, the applicant asked for the children’s passports to be returned to her. The respondent refused. She sought the intervention of a local government official without success.
19The respondent says that the applicant commenced a legal proceeding against him before the Jordanian Court seeking the return of the children’s passports.
20The applicant denies that she brought any such proceedings. I have some translations of Jordanian proceedings in evidence. I have seen nothing that looks like a claim by the applicant against the respondent for the return of the children’s passport in mid-2021. But the translations are not easily understandable. I do not know if they are a complete record of all the proceedings between the parties. 1
21The applicant sought the assistance of the Canadian government to provide emergency travel documents for the children. In September, 2021, she travelled back to Canada to try to get emergency travel documents to let her bring the children home.
22At about that time, the respondent started divorce proceedings against the applicant in Jordan. He claimed cruelty as the basis for the divorce. He obtained an order from the court barring anyone from taking the children out of Jordan. That order remains in force today.
23The applicant had a lawyer appear on her behalf. The lawyer writes a letter saying essentially that she had no defences to the travel restriction order. The applicant says that it is an order granted to fathers as of right and it is not predicated on the best interests of the children. I do not think the applicant’s lay evidence is sufficient to let me understand the applicable Jordanian law. I do not know if it is a gender-based law or, perhaps, one that aims to keep the children under the court’s protection temporarily while issues are under consideration. I do not know the relevant issues before the Jordanian Court. 2
24Ultimately, it appears that the applicant was successful in the Jordanian divorce proceeding. The court denied the divorce sought by the respondent because he presented no witnesses to any cruelty by the applicant. The applicant was awarded custody of the children. The respondent has some visitation rights when he is there. The Jordanian court also awarded the applicant spousal support for one year and ongoing child support.
25The quantums of support awarded by the court in Jordan are low by our standards. But I know little of the cost of living in Jordan. The respondent says that he was paying the applicant support that was around the regular salary of a teacher in Jordan. The applicant says she was virtually destitute.
26The applicant says that the respondent did not pay her until ordered by the court. Even then he was often late and payments were sporadic. She says that with the children being held in Jordan, she had no choice but to seek support and custody in proceedings there. Yet she was able to afford to come back to Canada in September, 2021 and then once again later. She did not have to be here to start proceedings. It is not clear to my why she had to claim support in Jordan instead of here where the respondent resides and has his assets. Her finances are quite opaque.
27The applicant submits that she did not attorn voluntarily to the Jordanian court. Moreover, she submits that attornment is not an important issue when considering this court’s jurisdiction under the CLRA and the FLA. Trimble J. makes this point in Bakarat.
28After losing in court the first time, the respondent then obtained a divorce in Jordan unilaterally. I cannot tell if it was a bare Talaq divorce. The court recognized it apparently. But, again, the applicant’s lawyer says in a letter that she had no defences.
29If the marriage is invalid and the divorce then is irrelevant here, what is the status of the Jordanian custody and support orders? Were made before or when the initial divorce was denied? Are they corollary relief that fell with the denial of the divorce? They seem to have continued existence. Might they be based on an independent jurisdiction to deal with custody and support irrespective of divorce, analogous to our CLRA and FLA for example? Did the court making the custody order(s) consider the best interests of the children?
30Before I get to the law and listing of issues, I need to mention the allegations of abuse. They are significant. They are denied by the respondent although there appears to be at least some corroborating evidence involving contemporaneous injuries to the applicant and police reports. There is apparently a 300-page CAS report that counsel did not grace me with in evidence.
31The applicant says the respondent beat her and her sister in public in Jordan. He has threatened that she will never get his money and that he will punish her through the children. She says that he made the 10-year-old boy smoke a cigarette and drive a car in Jordan in order to hurt her. He has kept the children in Jordan to keep her away from this court and his assets. She claims he may be transferring his assets to relatives to avoid this court’s reach in any event.
32There is an odd inversion in this case. The applicant’s family is in Jordan. She is being supported by them. The respondent and his family are here. Yet the respondent is keeping the children in Jordan. The applicant seeks an order to require him to lift the Jordanian travel restriction order so she can return to Ontario with the children. Normally the party here tries to bring the children home. A party here does not usually argue for a foreign court to take jurisdiction. Plus, the applicant appears to have succeeded in Jordan. Normally a successful party does not try to undermine the proceedings in which they succeeded.
Legal Issues
33Subsection 22 (1) of the CLRA provides, in part:
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…
34These proceedings were commenced only last year after the children had been in Jordan for the best part of two years. As the children were not physically present in Ontario when the applicant started this application, this court can only have jurisdiction if the children were “habitually resident in Ontario” at that time under s. 22 (1)(a).
35The definition of “habitually resident” is set out in subsection 22 (2) of the CLRA:
Habitual residence
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
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.
With a person other than a parent on a permanent basis for a significant period of time.
36The last place the children lived with both parents was Ontario unless I find that the applicant actually moved home to Jordan in May, 2021 as alleged by the respondent. It is hard to make sense of that evidence in face of the fact that respondent had return tickets and, as late as July, 2021, she emailed one of the boy’s teachers in Toronto about coming home in late August for the upcoming school year. Moreover, why was she seeking the children’s passports and why did she return to Canada to get emergency travel documents for them if she was intending to stay in Jordan with the children? Why would the respondent have needed an order keeping the children in Jordan if the applicant had moved them there with permanence? More fundamentally, why would the applicant move half a world away, back to her parents, in order to reconcile with the respondent who is deeply ensconced in Ontario?
37But subsection 22 (2)(2) also allows for habitual residency to be determined if the children are with a parent pursuant to a court order. The travel restriction and custody orders were in place before this application was commenced. Are they orders that would mandate that Jordan be recognized as the place of the children’s habitual residence at that time?
38If I find that the children’s habitual residence was in Ontario, subsection 22 (3) of the CLRA provides:
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.
39While moving the children without consent could not alter their habitual residence, did the court orders obtained in Jordan and the passage of time do so? The respondent also submits that the applicant delayed bringing this proceeding until after she took her best shot in court in Jordan. He submits there is undue delay. The applicant relies on law saying that delay caused by lack of funds will not be undue delay for the purpose of the section. There has been no real exploration of the applicant’s finances in the evidence. Although she had a lawyer in Jordan, I did not hear the respondent deny that she had only as much money as he gave her.
40If I find that the children’s habitual residence was Ontario and there was no undue delay by the applicant in commencing this proceeding, then this court will have jurisdiction to hear this proceeding. I then need to consider if Jordan remains the more appropriate forum under s. 25 of the CLRA. This appears to be a codification of the common law doctrine of forum conveniens under which Canadian courts with jurisdiction in a dispute can still decline to act if there is another forum that is substantially more convenient taking into account numerous fairly practical considerations.
41Does the fact that there are orders already made in Jordan affect the forum conveniens issues? As there are prior proceedings extant in which orders have already been made with both parties participating, the policy against multiplicity of proceedings is also engaged. Subsection 19 (b) of the CLRA provides that avoiding multiplicity of proceedings is among the purposes of the parenting section of the statute:
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
42On the other hand, avoiding unlawful, unilateral changes to children’s habitual residence is also a fundamental purpose of the statute. I do not want to make a decision that would give incentive to spouses to remove children from Ontario without due authority. This would be contrary to our law and to our international commitments under the Hague convention: Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35.
43Regardless of whether I find that this court has jurisdiction or should decline to exercise jurisdiction, s. 40 of the CLRA authorizes the court to make interim orders in the best interest of the children. These orders can include staying this proceeding on condition that another proceeding be brought elsewhere. Or I can order a party to return the children to an appropriate place at his or her own cost.
44I do not know if the Jordanian custody and support orders are interlocutory or final orders. I do not know if I can or should order more proceedings to be brought there as I do not know what is available there or the basis of any such proceedings under Jordanian law.
45In addition, s. 41 of the CLRA requires me to recognize foreign orders for parenting subject the following:
Enforcement of extra-provincial orders
41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario. [Emphasis added.]
46I am uncertain of how this section fits the inversion of the facts in this case. The section anticipates that a party who has obtained a parenting an order abroad will come here to enforce it. But in this case, the successful applicant asks me to reject the custody and support orders in her favour so she can try to obtain them on better terms under Ontario law. She does not really challenge her own custody or parenting rights. Her dispute comes down to the fact that the travel restriction order is keeping the children in Jordan despite her having custody and it gives the respondent some unsupervised parenting time when he goes to Jordan. Plus, she says she is entitled to spousal support and child support at higher levels and equalization (if it applies given the bigamy issue).
47The applicant denies that she was given an effective right to participate in the proceedings regarding the travel restriction order. She says the law did not require the court to have regard for the best interests of the child. She submits that the travel restriction order and the law on which it is based are contrary to Ontario public policy.
48I mentioned above that there are letters from the applicant’s lawyer about the Jordanian proceedings. However, they are not sworn, admissible evidence by an independent expert. I have no insight into the law or process behind the travel restriction order, the award of custody, or the parenting rights provided to the respondent.
49Under s. 45 of the CLRA, in a parenting proceeding here, the court may take notice of foreign laws and court proceedings without formal proof. Normally, foreign law is treated as a question of fact that is proved by an expert witnesses. Neither side provided any applicable Jordanian laws to me. The applicant’s lawyer’s letters were largely conclusory. They did not set out the applicable law.
50A party who seeks to have the court take notice of foreign laws must do so in a way that provides the court with confidence that it can understand the context, process, and substance of the foreign laws and proceedings. While expert testimony may not strictly be required, I am very dubious, for example, that just providing me with a copy of a foreign statute will be enough to equip me to understand the applicable legal system and process to enable me to draw required conclusions.
51In addition, it may be that the degree of urgency of the proceedings may bear on the cogency of proof of foreign law required. In an urgent abduction case, in which no substantive court orders have been made abroad, proof of foreign law may be a straightforward matter with little relevancy. In that case it may be safer and simpler to take judicial notice of foreign law. But here, by contrast, proceedings have been undertaken by the parties abroad for almost two years and have generated several orders that the applicant seeks to undermine based on public policy concerns. Forum conveniens, enforcement of subsisting foreign orders, and attornment issues are raised. Absent urgency, and with the heightened complexity of the foreign proceedings in this application, the parties are well advised to consider adducing evidence that gives me a breadth and depth of understanding of the Jordanian proceedings commensurate with the complexity of the issues.
52Section 42 of the CLRA authorizes the court (if it has jurisdiction and does not find the foreign proceeding more convenient) to make an order superseding a foreign order where there has been a material change in circumstances. I can also do so under s. 43 of the statute if the children would likely suffer serious harm remaining with the person legally entitled to decision-making or is returned to a person legally entitled to exercise decision-making. I noted the issue of abuse above including some allegations of abuse of the children.
53While s. 40 of the CLRA allows me to order a party to deliver the children to an appropriate place, how does that work when there is a local order keeping the children in Jordan that I may have to enforce under s. 41? Even if I were to make an order under ss. 40, 42, or 43, I cannot force the Jordanian Court to let the children come back to Ontario.
54The applicant seems to be seeking a form of antisuit injunction. While I cannot and would not purport to tell the Jordanian Court how to carry out its jurisdiction, the respondent is undoubtedly within the reach of this court. So too are his assets (whether recently conveyed to relatives or not). I can grant an injunction enforceable against the respondent in personam (personally) to require him to take steps in Jordan to try to end the travel restriction order. This is called an antisuit injunction.
55The antisuit injunction is a known remedy in Canadian law. Neither party made submissions about the Supreme Court of Canada’s leading decision in Amchem Products Incorporated v. British Columbia (Workers' Compensation Board). Does it apply in this case under this statute and, if so, is the test met?
56I do not know whether the order of the Jordanian Court restricting the children’s travel can be withdrawn by the respondent with or without the applicant’s consent. Should I make an order requiring the respondent to return the children on pain of contempt of court and sequestration of his assets without knowing if he has the legal or factual ability to comply? Does the applicant’s participation in the Jordanian proceedings matter on this issue of Jordanian law?
57On what basis does the travel restriction order continue now that the divorce, custody, and support proceedings in Jordan appear to be over? Perhaps the custody and support proceedings are continuing. I do not know.
58For her own property rights, the applicant also relies on s. 15 of the FLA that looks to the last common place of habitual residence of the parties.
59I agree with Mr. McLean that I should focus on resolving only the issues going to jurisdiction and forum conveniens at this time. The respondent has contested jurisdiction and is not able to participate on the merits yet without prejudicing that position.
60It seems to me that to try to grasp just the jurisdiction issues presented, I need the parties to explore facts and law relating to some or all the following:
a. Does Canadian law recognize the parties’ marriage?
b. Are the Jordanian orders affected by the revelation that the parties were married before the respondent had formally obtained a divorce from his prior spouse? Does Jordanian law recognize polygamous marriages so as to invoke s. 1 (2) of the FLA?
c. Does the Jordanian divorce have any effect here if the marriage is not recognized here or even if it is? Was the divorce that is now effective in Jordan a bare Talaq that should not be enforceable here in any event? This drives the question of whether the Divorce Act is available to the applicant.
d. What is the legal basis for the Jordanian custody and support orders? Does the court consider the best interests of the children at any stage? Are the orders interim interlocutory, or final? Were they affected by the initial denial of the divorce claimed by the respondent or by his subsequent successful divorce proceeding?
e. Is there a basis proven by the applicant to refuse to recognize the custody and support orders made by the Jordanian court? Can she prove any of the grounds in ss. 41 (1)(a) through (e) of the CLRA?
f. What is the legal basis for the travel restriction order keeping the children in Jordan? Is it available to all or just to men? What is the purpose and effect of the law under which the order was granted? When does the restriction expire? Can it be lifted by the respondent alone or by the two parties on consent?
g. Is the Jordanian custody order or the travel restriction order a “court order” for the purposes of s. 22 (2)(2) of the CLRA? (Note this is a question of domestic law for counsel and not for expert evidence).
h. What are the particulars of the applicant’s participation in the Jordanian proceedings? This goes more to forum conveniens and recognition of the foreign orders. The latter may also affect the assessment of the children’s habitual residence under s. 22 (2)(2) of the CLRA. Did the applicant’s financial circumstances render her unable to commence proceedings here remotely while able to participate in Jordanian proceedings? Does Ontario law excuse “involuntary” participation in the Jordanian proceedings from the usual consequences of attornment? What is the definition of the type of conduct that the court will recognize as “involuntary”? Does it matter that the applicant went beyond challenging the jurisdiction of the Jordanian Court and mounted successful proceedings defending against divorce on the merits and obtaining custody and support orders?
i. Does it matter that rather than having competing court processes under way, the applicant already has obtained court orders in Jordan for custody, child support, and spousal support? Why is this court more convenient when the parties are all Jordanian citizens, have been in Jordan for two years, have engaged in legal proceedings there; have already obtained court orders there, and their marriage is possibly not even recognized here?
j. In assessing making orders under ss. 40 to 43 of the CLRA, do I consider the best interests of the children. How do I compare their lives in Jordan to Ontario on the facts? Do antisuit injunction principles apply?
k. If the statutory scheme does not fit the inverted facts, should the court nevertheless exercise its parens patriae jurisdiction? If so, how?
61Counsel should consider what evidence they need and can obtain. Perhaps a joint expert is available who can explain the Jordanian law and proceedings to the court. Then they may need to hone their evidence on the scope and content of the applicant’s participation in the Jordanian proceedings. Ontario law submissions need much greater focus on the specific issues in the case. I see little in the law presented thus far that deals with children who are detained by a foreign court order obtained by a parent who is here with the other parent staying with the children abroad and going through largely successful court proceedings for two years.
62The interplay of ss. 22 (2) and (3) of the CLRA needs to be considered. If the children were habitually resident here when they left on vacation in 2018, but they are now living with a parent pursuant to a custody order made by a foreign court in a proceeding in which both parents participated, can this court still find that the children’s habitual residence is in Ontario as at the commencement of this proceeding?
63Why does the Jordanian travel restriction continue to apply in light of the orders already made by the Jordanian Court? Am I entitled to even consider this question?
64I invite counsel to consult with their clients and each other to try to map out a process for further evidence, cross-examinations, and submissions. I remind counsel that I am unlikely to find a witness’s evidence to be untruthful without him or her being confronted with the contradiction.
65This is not a case that will get better with age. Accordingly, I would like to hear back from counsel at a case conference to be arranged in front of me before the end of March.
66Costs reserved to the final outcome of the jurisdiction issues on the motion.
FL Myers J Released: March 6, 2023
Footnotes
Footnotes
- While the translations bear a stamp of certification by an official translator in Jordan, they are not supported by an affidavit of the translator as required by s. 125 (2) (b) of the Courts of Justice Act, RSO 1990, c C.43.
- The applicant relies on the recent decision of Trimble J. in Bakarat v. Andraos, 2023 ONSC 582, in which the judge ordered a mother to return children to Canada despite an order restricting the children from leaving Lebanon that she had obtained in a proceeding there. Lebanon is a nearby neighbour to Jordan. I do not know if their legal systems are related or similar. But this case is an example of (a) a travel restriction being granted in favour of a mother; and (b) this court ordering a parent to return children to Ontario despite a travel restriction order in the foreign jurisdiction.