Court File and Parties

COURT FILE NO.: FS-22-00030996 DATE: 20230511 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elena Danilina, Applicant AND: Jay J Squalli, Respondent

BEFORE: F. L. Myers, J.

COUNSEL: Farrah Hudani and Carina Chan Counsel, for the Applicant James S Marks Counsel, for the Respondent

HEARD: May 2, 2023

Endorsement

[1] The respondent moves to dismiss this proceeding for lack of jurisdiction. He also seeks to set aside the orders made without notice by Paisley J. on April 12, 2018 and by Horkins J dated January 6, 2019.

It is Too Late to Set Aside the Ex Parte Orders

[2] It is neither just nor appropriate to set aside the orders made in this proceeding four and five years ago respectively. Those orders set in motion proceedings abroad under the Hague Convention and years of litigation in Morocco and UAE.

[3] The respondent says that he did not challenge the orders until he recently succeeded abroad. But that is not a basis to come back now. He chose to live under the orders for years while making his stand abroad. Had he challenged the orders on a timely basis, many of the proceedings abroad may not have been required.

[4] Having allowed the proceedings abroad to run for years based on the existing orders in this proceeding, it is far too late to reconsider them now.

[5] The respondent submits that to obtain the two challenged orders, the applicant failed to make full and frank disclosure to this court. In particular, she did not disclose that she had hit one of the children. The incident was not trivial as is confirmed by the applicant’s own written contemporaneous discussion of the event.

[6] Without in any way minimizing issues of possible abuse, I cannot say that one event in a child’s lifetime would have had any effect or relevancy to the issues before Paisley J. or Horkins J. in circumstances of a child abduction by the respondent. Rather, once the children were returned by the father, then all relevant issues related to parenting could have been brought forward.

[7] This alleged non-disclosure is also not a basis that can justify waiting so long and allowing so many events to unfold before moving to set aside the orders made in this proceeding. To the contrary; as soon as the issue was known, the respondent ought to have brought it to the court had he believed it was a basis to undermine the court’s orders. Instead, he withheld all contact between the children and the applicant and pushed her to bring proceedings in Morocco and to respond to proceedings in UAE.

[8] I do not if the respondent waited so long to try to create a new status quo, or to run up the applicant’s costs, or to just erect barriers in her path or all of the above. I do not need to find a precise motive to find that it would be unjust to allow the respondent to come back now to challenge orders under which the parties have acted this entire time.

Deferring Jurisdiction

[9] There is no real doubt that this court has jurisdiction. The children were living here with their mother and father when he was able. They had a home and had built a life here for several years with both parents’ assent and involvement.

[10] It may be that the parties were considering moving back to UAE in the fall of 2018. The evidence about the older child taking school entrance exams suggests this is so. But there is no evidence that the parents had agreed to a move. Had she agreed, why would the applicant have complained when the respondent took the children? And why would the respondent have taken the children in a surreptitious way without a note, an email, or call to work out logistics of an agreed, consensual move with the applicant?

[11] The extension of the parties’ one year lease on a month-to-month basis does not carry an inference that the parties were leaving. It was simply the operation of law. Security of tenure applies regardless of whether a formal lease term is agreed. No notice to quit had been given to the landlord.

[12] It seems likely that the parties had not yet agreed on whether or when to return to the Middle East. In any event, parental intent is only part of the hybrid approach to determining the habitual residence of the children under the Hague Convention.

[13] One point is clear: even if the parties were discussing their future, they had not agreed to have the children leave Toronto permanently on April 6, 2018 when the father took them surreptitiously.

[14] The respondent says he took the children to see his mother who was deathly ill in the hospital. While travelling, he learned that his mother had recovered and been discharged from the hospital. Instead of taking the children to see her anyway in Morocco (as she had requested) or turning around and bringing them home to finish the school year, the respondent made a unilateral (and very quick) decision to take the children to the UAE.

[15] One might argue that the respondent’s story seems contrived. The coincidence of his mother’s recovery and the speed by which he changed travel plans support an inference that this was a planned abduction. But it does not matter. Regardless, he did not have the consent of the applicant to take the children to UAE permanently on April 6, 2018 even if it was just a few months early as he submits.

[16] Although the respondent has succeeded to date in having the courts Morocco decide not to return the children, he has not successfully challenged the finding of fact made by the Morocco courts that he had no consent to take the children as and when he did.

[17] So, the issue is not whether this court has jurisdiction. It plainly does. The children were habitually resident here when he took them. The issue is whether the court ought to decline to exercise its jurisdiction in light of the proceedings and findings in Morocco and UAE. The respondent’s counsel agreed with me that this motion is most aptly considered as an issue of forum non conveniens under s. 25 of the Children's Law Reform Act, RSO 1990, c C.12.

[18] I am troubled by the court decision in UAE. The applicant retained counsel and opposed the respondent’s custody proceeding in UAE on its merits. The respondent succeeded in obtaining a custody award in UAE that has since been recognized in Morocco.

[19] I do not accept that a party can participate in a foreign proceeding on its merits and then claim duress absent some very extreme circumstances. Nothing stopped the applicant from contesting the jurisdiction of the UAE court without attorning to its jurisdiction. The practical reality may be that since UAE is not a party to the Hague Convention, it is only the proceedings there that make a practical difference to the applicant’s ability to see the children. But that is a question of legal strategy rather than compulsion that vitiated her will.

[20] I do not criticize the applicant’s decision to participate in the UAE proceedings. It was an eminently sensible decision. But that does not mean that it is a decision without consequences.

[21] Having said that, I am also concerned about the UAE proceedings. I do not know enough about them to decide today whether to recognize the proceedings or whether it is more appropriate for jurisdiction to be exercised there under s. 25 of the CLRA.

[22] I am very concerned about the summary rejection of the credibility of the applicant’s testimony due solely to her sex. The starkness of the judicial officer’s preference of the testimony of a man over a woman because women are “emotional” is troubling to say the least and is contrary to the values in our Canadian Charter of Rights and Freedoms.

[23] I am also troubled by the custody decision that seems to be predicated on the best interests of the children being driven by the father’s right to carry out his parental duties.

[24] I am not questioning the validity of the laws or practices of the UAE. They are entitled to their own legal regime that differs from ours. But section 41 (1)(c) of the Children’s Law Reform Act requires me to consider whether the law of the UAE considers the best interests of the children. Like human rights, the necessity to base parenting decisions concerning children on the best interests of the child has become a fundamental norm of international law.

[25] I see no discussion of the best interests of the children in the custody decision of the UAE court apart from the judge equating the children’s best interests with their father’s right and religious duty to parent his children. I am not prepared at this time, without a far better understanding of the situation before the UAE court, to decide whether this satisfies s. 41 (1)(c) and the rest of s. 41 of the CLRA.

[26] I also have a concern about the jurisdiction of the UAE court. Section 22 of the Divorce Act, RSC 1985, c 3 (2nd Supp) does not recognize bare Talaq divorces per se. Abraham v. Gallo, 2022 ONCA 874. If the custody decision flows from the Talaq divorce obtained by the respondent, then I would consider whether we should be recognizing the former if we do not recognize the latter.

[27] Finally, and of greatest significance, I do recognize that this is all for naught if the Morocco court refuses to return the children based on their expressed desire to stay with their father. I am concerned that the expert psychiatrist seems to have dismissed the idea of coaching and alienation in one line of her report without indicating that she conducted any serious investigation of the issue. But that is a question for the courts in Morocco and not for me at this stage at least.

[28] The applicant has appealed the most recent decision of the Court of Appeal in Morocco. If the decision is upheld, then there is likely nothing that this court can do that will make a practical difference regardless of what it might find on the merits down the road.

[29] I am also mindful of the explicit policy to avoid multiplicity of proceedings in international cases set out in s. 19 of the CLRA. Whether the abduction of the children might make this a case of “exceptional circumstances” as referred to in s. 19(b) needs to await the outcome of the appeal in Morocco. That is, if the Morocco courts order the children returned, then the issue of whether to recognize and defer to the UAE court decisions becomes ripe under ss. 19, 25, and 41 of the CLRA.

[30] Moreover, if the children are ordered returned to Ontario, then this case may proceed. Only once the wrongful removal of the children from Ontario is reversed are the courts entitled to consider custody and the best interests of the children on their merits. (See Article 16 of the Hague Convention for example).

[31] It is therefore premature to consider whether Ontario is forum non conveniens.

[32] Once proceedings in Morocco are finally concluded, the parties may schedule a case conference to consider whether or how to move this application forward.

Outcome

[33] The motion is therefore dismissed.

The applicant may deliver written costs submissions of no more than three pages double-spaced in minimum 12-point font by May 19, 2023. The respondent may deliver written costs submissions of the same length by May 26, 2023. Each party shall deliver a Costs Outline. They may also deliver copies of any offers to settle on which they rely for costs purposes.

“F. L. Myers” F. L. Myers, J. Date: May 11, 2023