COURT FILE NO.: FS-22-113-00
DATE: 2023 01 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMIN JOSEPH BARAKAT
Ruth Kalnitsky Roth and Dana Kalisky for the Applicant
Applicant
- and -
LUNA MOUNIR ANDRAOS
Respondent
Michael Stangarone for the Respondent
HEARD: January 16, 2023 In Person
ENDORSEMENT
[1] The applicant Father seeks an order that the respondent Mother return the children of the marriage, Adam Barakat ("Adam"), born September 18, 2014 and Ella Barakat. ("Ella"), born June 28, 2018, to Ontario, their place of habitual residence.
[2] The respondent Mother argues that the orders of the Court in Lebanon, preventing the travdel of the two children from Lebanon, and the order awarding temporary custody (decision making power) to Mother, oust the jurisdiction of the Ontario Court.
Procedural history
[3] This matter came before Tzimas, J on 2 September 2022 is an emergency motion, ex parte. She adjourned it to 13 September 2022 and ordered Father to serve it, and Mother to respond to it on a timetable.
[4] At the hearing on 13 September 2022, I asked counsel to address three evidentiary questions in the course of their submissions:
a. is the translation of the order of the Lebanese court admissible before me for the truth of its contents? If not, how must it be proved?
b. Is the opinion of the lawyer from Lebanon admissible for the truth of its contents? If not, how must it be proved?
c. Can I take judicial notice of information on a Government website or an organization like Human Rights Watch as evidence about safety issues with respect to the children in Lebanon?
[5] I set atimetable for submissions on these three questions.
[6] As the argument progressed, the parties agreed that the two orders from Lebanon are admissible, but only before this court, for this hearing, and without prejudice to either party taking a different position for any other purpose, or at any other hearing.
[7] Whether this agreement survives this motion is not for me to decide.
[8] Further, Mother requested permission, which I granted, to provide an affidavit from her expert about Lebanese law which would be to the same effect as the opinion attached as an exhibit to Mother’s affidavit. Based on my allowing him to do so, he argued the motion as if the opinion were properly before the court.
[9] Both parties filed their submissions according to timetable. The respondent filed an affidavit from the legal expert, as promised.
[10] The parties then brought four unsolicited, urgent motions in writing:
a. 14 October 2022, Father brought a motion to file a supplementary affidavit dated 13 October 2022 addressing new evidence received on 2 October 2022 with respect to the latest developments in the Lebanese proceedings, but which were only translated on 11 October 2022;
b. 18 October 2022, Mother brought a cross-motion to file a further affidavit of her own dated 17 October 2022 and a further expert report by Mr. Chawat Houalla, of the same date;
c. 2 November 2022, Mother brought a motion to file an affidavit of 1 November 2022 attaching the affidavit of her expert dated the same date and an attestation filed in the Lebanese court in reply to the affidavit of I. Traboulsi sworn 25 October 2022 and filed by the applicant;
d. 7 November 2022, Father sought leave to file an affidavit dated 4 November 2022 in response to the respondents 2 November 2022 motion.
[11] In reply to Mother’s response to his motion of 14 October, Father sought to file three affidavits: his own, an affidavit from Archbishop Elie Bechra El Haddad, an Archbishop and Pastor of Saida and Deir El Qamar Parish of the Melkite Greek Catholic Church in Beruit who was being proffered as an expert in church and ecclesiastical law in Lebanon, and an affidavit from his lawyer in Lebanon, Ibrahim Traboulsi.
Preliminary rulings
[12] I address, first, the three preliminary questions I posed.
[13] The first question about the translation of the Lebanese orders was resolved by agreement.
[14] The second, about the admissibility of the legal opinion attached to Mother’s original Affidavit has been resolved by my granting leave to Mother to file an Affidavit from the expert so long as it conformed to the report attached as an exhibit to Mother’s Affidavit.
[15] I reject Father’s objection to my accepting the expert evidence proffered by Mother because it did not meet the requirements of Family Law Rule 20.2. His objection is one of form over substance.
[16] I also reject Father’s argument that Mother’s experts do not qualify as experts.
[17] All of those who have provided evidence with respect to Lebanese law, from both sides of this dispute, have some expertise such that their reports are admissible under the two-part test in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
[18] Nothing in the record indicates that I should reject any of the experts’ opinions under the White-Burgess test.
[19] In any event, one of the central issues in this motion is this court’s jurisdiction under s.s 22(1)(b) and 41(1) of the Children’s Law Reform Act,.
[20] The best interests of the children demand that I decide this matter on all relevant evidence, and not on a record limited by the parties’ failure to observe procedural niceties.
[21] I accept all of the further filings. While I had this matter under reserve, things moved forward in Lebanon, necessitating the filing of the further affidavits.
[22] With respect to the third issue, taking judicial notice of website information of governments or other nongovernmental organizations, about safety concerns in Lebanon, I conclude I can.
[23] R. v. Spence 2005 SCR 458 set the test for judicial notice. A court may take judicial notice of a fact where it is (1) so notorious or generally accepted that no reasonable person would disagree, or (2) capable of immediate demonstration by reference to sources of indisputable accuracy (see also: R. v. Find 2001 SCC 32, para 48). These can be social, legislative or adjudicative.
[24] The facts that Father seeks to introduce from government and NGO websites are social facts which are useful in deciding factual issues critical to the resolution of the lists before the court’s (see: Spence at para. 26(3). A court may take judicial notice of facts can come from government and NGO websites provided that the government or organization has a reputation for credibility (see: Araya v. Nevsun Resources Ltd, 2017 BCCA 401 at par 24, Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503 at paras. 72–75, Buri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1358, [2001] F.C.J. No. 1867 (Fed T.D.) at para. 22 and Kazi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 178, [2002] F.C.J. No. 223 (Fed. T.D.) at paras. 28, 30).
[25] All but the first of these cases are immigration cases in which the immigration tribunal regularly takes judicial notice of facts based on government and NGO postings such as those of Human Rights Watch. The Araya case, however, is not an immigration case. It Araya, the plaintiffs brought a civil action against the Eritrean government and others for damages on the basis that the Plaintiffs were forced to work at a gold mine run by Eritrean state-owned companies. The court held that admissibility of such reports should be decided on the basis of principle rather than hard and fast rules, leaving it to trial judges to assess the appropriate weight to be given to the evidence. The court accepted the conditions of reliability and necessity given the circumstantial guarantees of reliability of government and NGO websites, generally, or of reports generated by them (para. 99 to 101).
[26] Based on the jurisprudence placed before me, I accept the information Father proffers with respect to safety concerns in Lebanon.
The merits of the motion
Family Background
[27] The parties were married on to March 2012 in Mississauga Ontario in a civil ceremony and then in a religious ceremony in the Maronite Catholic ceremony in Lebanon on 10 August 2012.
[28] There are two children of the marriage: Adam Barakat ("Adam", DOB September 18, 2014) and Ella Barakat ("Ella", DOB June 28, 2018).
[29] In March 2012 the family moved to Kuwait for Father’s work. Mother joined him in September after their religious wedding. Both worked in Kuwait.
[30] Shortly after their marriage, the couple purchased an apartment under construction in Lebanon, Father says for investment purposes, Mother says as a home for the family. After it was built, the parties sold the apartment.
[31] Both children were born in Canada. Mother travelled to Canada from Kuwait in the summer 2014 so Adam could be born at the Credit Valley Hospital in Mississauga. After Adam was born, Mother returned to Lebanon for a few months where she stayed with her own Mother to assist with caring for Adam in his infancy. Eventually she rejoined Father in Kuwait.
[32] In June 2015, Father resigned from his position. They remained in Kuwait until May 2016 when Father accepted the position in Canada. Mother and Adam followed on 2 June 2016.
[33] By the end of 2017, Mother began working as a teacher in Ontario.
[34] Ella was also born at the Credit Valley Hospital in Mississauga in June 2018. In July 2018 Mother travelled to Lebanon to be with her Mother. Father objected although he eventually acquiesced. Mother returned to Mississauga after several weeks in Lebonon. After her maternity leave ended, she returned to work in Ontario as a teacher. She resigned shortly after returning to work because she felt uncomfortable placing Ella in daycare.
[35] In October 2020, Mother found part-time work at the Mon Avenir Catholic School Board. In the summer of 2021, during the pandemic, Mother obtained a second, full time contract position with the Canadian Cancer Centre partnerships, a non-profit organization. Around the same time, Father accepted a position with a new company that had acquired his previous employer. Because of changes in the company, he resigned his position effective July 15, 2022. As of September 2022, Father has been unemployed, considering his options.
[36] In addition to being born in Canada, the children attended school at Ecole Elementaire Catholique Rene-Lamoureux in Mississauga. They have established community supports and friends in Mississauga. Their healthcare is provided by Dr. Chera at the Kingsbridge Medical Centre in Mississauga. Adam plays in a local boy’s league basketball league and Ella takes classes at the Academy of martial arts in Mississauga. Father’s two sisters and his parents both live in Mississauga and have close relationships with the children.
[37] The family has extensive contacts with Lebanon. Mothers’ family is there. The children have connections to Mother’s family in Lebanon.
[38] Father’s parents and two sisters are in the GTA. Father’s Mother appears to have a home in Lebanon, where she spends a part of each year. It also appears that Father’s sisters also have properties in Lebanon, where they spend a part of each year.
[39] Both parents have been active parents to the two children although the Mother more so than Father because he worked full-time.
[40] Throughout their time in Canada, Mother expressed the desire to return to the Middle East. Her family was there and she missed them. She was of the view that they could enjoy a higher lifestyle there. Father considered the opportunities better in Canada and thought it was a safer place to grow up. These arguments strained the relationship.
July 2022 trip to Lebanon, and Separation
[41] In late 2021 and early 2022, the couple planned a family trip to Lebanon. They travelled there frequently because both parties had family there.
[42] In March 2022, Father purchased tickets for the family trip with Mother and the children departing on 8 July 2022 and returning on 12 August 2022. Father was scheduled to join them on 28 July and return with them on 12 August. Father provided Mother with a signed a travel consent form which noted the return dates. Father asked Mother to use the children’s Canadian passports given political instability in Lebanon. Members of this family had both Lebanese and Canadian passports. Ultimately, Mother used Lebanese passports because, as she told Father, the line for foreigners at the airport in Lebanon was too long.
[43] Mother says that on 13 July 2022, the couple had a telephone call that turned into a significant fight. They argued over the fact that Mother had travelled using the children’s Lebanese passports, not Canadian passports. In addition, she asked Father to agree to extend the trip by three days. Father refused to do so. He got angry. He refused to let her travel to Lebanon in the future. He said he would cancel plans to go to Lebanon for Christmas. He had already taken control of finances and was excluding her from financial matters.
[44] Mother says that in that telephone call, she explained that she needed some time to explore her options. She told Father that she had asked her Father to share her views with Father’s Father over the phone as the two Fathers were friends. She says that she told Father that he could spend time with the children when he was in Lebanon while she sorted out what she wanted to do and “took some space to think”.
[45] According to Mother’s evidence, unbeknownst to Father, the day after her argument, she filed a petition with the Lebanese court to annul her marriage, before Father could launch any Ontario court proceedings. She admits that she requested custody of the children and a travel ban. The petition was heard on 19 July 2022 and the travel ban was issued on 21 July 2022, all before Father was notified of the process or travel to Lebanon. Mother concedes this fact.
[46] Father says that on 20 July 2022 his Father received a call from Mother’s Father who said that Mother had no intention of returning to Canada, and advised Father to move out of the rental apartment in Mississauga to save money. Father says that Mother confirmed this advice to him directly in a subsequent phone call, and said that she wanted time to think about their relationship.
[47] Father travelled to Lebanon as planned on 28 July, he says, with the hope of reasoning with Mother to return to Canada. He stayed at a local hotel and saw the children is much as possible. Children even stayed with him at the hotel. His contact with Mother was limited, usually when she brought the children to see him or he picked up the children.
[48] On 4 August 2022, Mother confirmed to Father that she and the children were not returned to Canada on the scheduled flight. She said she needed some space. She said that it was not her current attention to never return to Canada. Father suggested that they meet with a marriage counsellor which Mother said she was open to.
9 August 2022 – Father’s Meeting with Church Officials
[49] Father says that on 8 August 2022, his Mother, who was in Lebanon at the time, received a call from a church official who asked her to inform Father that Mother had filed for divorce with the church and the church wanted to meet with him to understand his perspective on the matter. Father understood at the time that issues of separation and divorce were determined by the religious institution that married the parties. Other than this phone call, however, Father received no notice of the any proceeding before the church court and was told only that the meeting the next day was for the purpose of having a discussion.
[50] On 9 August 2022 Father went to the church with his Mother who provided translation services for him as he does not speak Arabic well. It was only at that time that he learned that Mother had filed for divorce and had obtained a travel ban for the children preventing them from leaving Lebanon. At that meeting, Father signed a statement setting out his position disputing Mother’s claims. He received nothing in writing at this meeting.
[51] After the meeting, Father consulted with a lawyer who advised him to return to Canada as planned, and to commence proceedings in Canada. The lawyer would address the proceedings in Lebanon.
[52] By order of the Lebanese court dated 26 August 2022, Mother was granted temporary custody of the children. Father received no written notice of this proceeding.
[53] Father believes that Mother was planning four months before the trip to orchestrate separation in Lebanon, in order to obtain advantage in that forum. He says that he transferred at least $40,000 to her, at her request, she said, to fund a new business providing multilingual writing services in North America and the Middle East. He says that the money was simply deposited in Lebanon to provide Mother with financial security once she arrived there.
[54] Mother denies that she had a premeditated plan to abscond with the children to Lebanon. She says that prior to going to Lebanon, the marriage was strained because of Father’s financial and emotional abuse. While they were both in Lebanon in the summer of 2022, they had a significant argument. The argument, in conjunction with the strains of the marriage led Mother to decide to separate from him and remain in Lebanon with the children.
[55] In paragraph 8 of her 7 September 2022 affidavit, Mother said “Lebanon is now home” (emphasis added).
[56] She says that the parties married there and bought theirr first home there. She says they continued to regularly reside in Lebanon and both of their parents have homes in Lebanon. Father attempted to control travel by the family including to restrict their time in Lebanon. She says that the apartment in Lebanon was purchased so that they could live in it when they are. Her evidence with respect to the sale of the apartment is vague. She admits that Father wanted to sell it so that they could purchase a home in Canada then refers to the fact that her parents transferred $250,000 US to his account.
Proceedings in Lebanon
[57] What occurred in the Lebanese proceedings is not in dispute. What is in dispute is the effect of various steps in that process.
[58] The following is not in dispute:
a. Mother filed a petition (which she signed on 14 July) with the Catholic Maronite Church court, seeking the annulment of the marriage, and requesting custody of the children and a travel ban for the children.
b. In Lebanon, the state devolved to religious courts’ jurisdiction all issues of marriage, dissolution of marriage, and custody of and access to children of the marriage. The church court with jurisdiction is the Catholic Maronite Church.
c. 15 July to 1 September – the Church Court was closed for holidays.
d. 9 August, Father met with Church officials. There is no evidence that he was given formal notice of the proceeding before the Lebanese court other than verbal notice at this meeting.
e. 12 August, Father returned to Canada on the date planned for the whole family to return. Mother did not. She and the children remain in Lebanon.
f. 26 August, Mother was granted temporary interim custody of the children. This order was made notwithstanding that the Church Court was on vacation, because the no travel order had been made in July, Father was scheduled to return to Canada on 12 August, and Mother needed legal authority to care for the children pending disposition of the annulment petition. There is no indication Father was provided with written notice of this proceeding.
g. 1 September, Father commenced his Application in Ontario.
h. 2 September, Father’s ex parte motion in Ontario is heard by Tzimas J.
i. Mother’s petition was issued by the Church Court and presented the to the Chief Clerk of the Church Court on 6 September 2022 and signed by the President of the Court on 21 September 2022.
j. 13 September, Father’s motion, on notice, was heard in Brampton before me.
k. On 22 September 2022, the Maronite Court in Lebanon set a first appearance on the parties’ dispute for 30 November 2022.
[59] Based on her expert’s opinion, Mother takes the position that Father was notified of the Lebanese proceedings at the meeting with church officials on 9 August 2022. She presents no evidence that he was notified prior to attending at the meeting of the purpose of the meeting with respect to being part of a divorce case. Father concedes that he was advised orally of Mother’s desire to commence proceedings. There is no affidavit of the person with whom the meeting was held.
[60] Father says that he was first notified, officially, of any proceeding having been commenced in Lebanon (as opposed to the desire to commence one subject to a reconciliation attempt by a third party) when his Lebanese counsel, on 26 September 2022 sent him a copy of court documents indicating a court date of 30 November 2022. His lawyer in Lebanon advised him that these documents were the initiating documents in the proceeding. His lawyer also advised him that the meeting on 9 August 2022 was merely a discussion with respect to possible reconciliation prior to the commencement of the proceedings.
Issues
[61] The following issues arise on this motion:
a. Does this Court have Jurisdiction under s. 22(1) of the Children’s Law Reform Act?
b. If this Court has jurisdiction, should it decline jurisdiction under s. 25 of the CLRA?
c. Should this Court defer to the orders of the Lebanese Court under s. 41 CLRA?
i. Was Father given reasonable notice of the proceedings in the Lebanese court?
ii. Was Father given reasonable opportunity to respond in Lebanon?
issue 1 – jurisdiction
The Law
[62] Under s. 22 of the CLRA, an Ontario court can assume jurisdiction over a mater with respect to a child if the child was habitually resident in Ontario at the commencement of the application for the order, or if all of the conditions under s. 22(1)(b) are met.
[63] S. 22(2) defines “habitual residence” as follows
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, whichever last occurrred.
[64] S. 22(3) provides that the removal of the child from the jurisdiction in which he or she is habitually resident, or withholding return of the child to the jurisdiction without the consent of the person having custody of 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.
[65] In determining the child’s habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis (see: Ellis v. Wentzell-Ellis, 2010 ONCA 347. Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction (see: Hibbert v. Escano, 2010 ONSC 1445 at para 21).
[66] In Korenic v DePotter, 2022 ONSC 3954, Dubé J. stated at para 22 that s. 22(1)(a) does not require the court to find a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Habitual residency is deemed under paragraph 1 of s. 22(2) when the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.
Analysis
[67] I find that the children’s habitual residence under s. 22(2) of the CLRA, as at 14 July 2022 was Ontario and not Lebanon. Consequently, the jurisdiction of this Court is triggered. I say this for the following reasons:
a. The trip to Lebanon in July – August 2022, was for a holiday, to visit family. The tickets had a defined return date. Father signed a travel acknowledgement to this effect. The move was not one to establish a new residence.
b. The children lived with both parents up to the July vacation, in Mississauga, Ontario.
c. The children attended school, had friends, had regular physicians, and participated regularly in extra curricular activities in Mississauga, Ontario. At the time of the July trip to Lebanon, they were on summer vacation,
d. Accepting Mother’s evidence, at the time she and the children left for Lebanon in July, she intended to return to Ontario,
e. Both parents were regularly employed in Ontario.
f. Mother travelled to Ontario from Kuwait so that the first child could be born here. The second child was born here.
g. Both children hold Canadian passports, as well as Lebanese.
h. The fact that the family regularly spent long periods of time in Lebanon does not affect the analysis of place of habitual residence. Their ‘normal’ routine was to vacation in Lebanon because of significant family connections. They always returned to Ontario. Mother’s spending time after the birth of each child was for the purpose of obtaining Mother’s Mother’s assistance with the newborn children. After each such sojourn, Mother returned to Mississauga,
i. Accepting Mother’s own evidence, she made the decision to stay in Lebanon on 14 July, in face of opposition by Father. While she may consider Lebanon to be her home now, she did not before 14 July. Her failure to return with the children as planned on 12 August constitutes an abduction under s. 22(3). Father did not acquiesce in her decision. He brought his application on 31 August 2022 and his ex parte motion on 2 September.
j. That the parties were married in Lebanon, resided there for a time, had an apartment there for a time, and have family that resides there, does not alter the fact that all indicators point to Ontario as their place of the children’s habitual residence.
[68] Having found that Ontario is the habitual residence of the Children pursuant to s. 22(1)(a), I do not need to consider habitual residence under s. 22(1)(b).
Issue 2 – Should This Court Decline Jurisdiction?
[69] I turn to consider whether this Court should decline to exercise its jurisdiction under s. 22(1)(a) of the CLRA. Section 25 of the CLRA provides
A court having jurisdiction under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
[70] The test for determining whether it is more appropriate for another court to determine parenting time and decision-making responsibility turns on where the balance of convenience lies, along with the purposes of the CLRA as outlined in s. 19. The factors that typically inform this assessment include the location of witnesses who can be expected to testify in this parenting dispute regarding their connections to Ontario and Quebec and the existence of a foreign court order. The balance of convenience must clearly weigh in favour of the other jurisdiction for the Ontario Court to decline to exercise the jurisdiction it has (see: Kanafani v Abdalla, 2010 ONCJ 185).
[71] In this case, the evidence stated does not weigh clearly in favour of Lebanon as a more appropriate forum.
Issue 3 - Should this Court defer to the orders of the Lebanese Court under s. 41 CLRA?
The Law
[72] In this case, the parties had an argument on 14 July and the next day Mother filed her petition for annulment of the marriage in the Court of the Maronite Church in Lebanon. The petition was heard on 19 July, and on 22 July the Court issued a travel ban which prevented the children from leaving Lebanon. On 26 August 2022, the Court granted a temporary custody order in favor of Mother.
[73] Mother argues that under s.41 of the CLRA, this Court cannot issue an order concerning the children. Mother initiated proceedings in the Lebanese court’s first, and the Lebanon Courts have assumed jurisdiction. Hence, this court cannot do so. The proceedings in Ontario should be dismissed for want of jurisdiction.
[74] S. 41 reads:
(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. R.S.O. 1990, c. C.12, s. 41 (1); 2020, c. 25, Sched. 1, s. 18 (1).
[75] The relevant section, for our purposes, is 41(1)(a) and (b).
[76] Under this section, this Court must enforce and abide by the Lebanese Court order unless Father was not given reasonable notice of the commencement of the proceeding in which the order was made, or not given an opportunity to be heard by the Lebanese Court before the order was made.
[77] Under this section, notice of an event must be actual service of documents, and an opportunity to be heard entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case (see: Ndegwa v Ndegwa, 2001 CanLII 28132 (ON SC), [2001] OJ No 2849 (QL); [2001] CarswellOnt 2528; 20 RFL (5th) 118; [2001] OTC 525 (S.C.), at par 15).
[78] What constitutes “reasonable notice” under section 41(1)(a)?
[79] In Ndegwa, the party asserting the predominance of the foreign order argued that oral notice to the respondent of the proceedings, after an order was made, is not sufficient to satisfy the reasonable notice requirement under section 41. Mackinnon, J., held that “reasonable notice” requires being served promptly with the written documents, especially where there was clear and obvious method of service available before the order was made. “Waiting until the order was made then serving the notice of the commencement of proceedings does not… meet the requirement of… reasonable notice of the commencement of the proceeding in which the order was made.” (see: para. 13).
[80] What Constitutes the Opportunity of Being Heard?
[81] With respect to being heard, Mackinnon, J., held that “being heard” entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case (see: para. 15)
[82] Ndegwa, was cited with approval on these points in British Columbia (Child, Family and Community Service) v. S.J.B., 2006 Canlii 22106 (Ont. C.A.), and Brown v. Pulley, 2015 ONCJ 186.
Analysis
[83] Mother’s position that I am required by s. 41 of the CLRA to honour the Lebanese Court’s orders is untenable.
[84] The only evidence is that Father had no notice, before the event, that Mother had filed a petition for divorce, there was a hearing date of 19 July, or that the Lebanese Court had made the non-removal order. He had no opportunity to respond. He was still in Canada when these events occurred.
[85] Father received no formal notice at 9 August of the details concerning Mother’s petition for an annulment and custody of the children, and was given no opportunity to respond formally. Indeed, it appears from all experts’ opinions that the 9 August meeting’s purpose was to attempt reconciliation.
[86] Mother’s expert says that travel bands are routinely imposed by the Lebanese court to prevent any disruption of the procedure initiated in the court. The non removal order is a standard order made on filing a petition in Lebanon.
[87] I do not need to decide the question of when the proceeding was commenced in Lebanon. The petition was commenced. Father was not served with it. A hearing in that petition was held on 19 July. Presumably Mother made representations. Father was not notified of that hearing and could not be present. The non removal order was made without his participation.
[88] Mother submits that Father had notice of the proceedings in that he attended a meeting with the court on 9 August 2022, was told of the petition, and, after leaving that meeting retain counsel and has been participating in the Lebanese proceedings.
[89] Father says that he was not aware that the meeting was with respect to a divorce proceeding.
[90] Father’s uncontested evidence was that he was unaware of the purpose of the 9 August meeting until 8 August, and only then by way of the message his mother related to him.
[91] Father says that on 8 August 2022, his Mother received a call from a church official to inform Father that Mother had filed for an annulment in the Church and the Church wanted to meet him to understand his perspective in the matter. Up until this time, while he was aware only of the fact that Mother wished a divorce. He had been served with nothing in this respect, formally.
[92] Father says that he went to the 9 August 2022 meeting with his Mother so she could translate for him. It was at this meeting that he first learned that Mother had filed for an annullment and that a travel ban had been issued for the children on 14 July 2022 preventing them from leaving Lebanon. He learned of the allegations Mother made with respect to the grounds for the divorce. By the conclusion of the meeting Father signed a written statement acknowledging his position of denying and disputing all of Mother’s claims.
[93] At this meeting, only discussions were held. He was given no formal notice and certainly, no written notice of any proceeding. He says that he first saw the travel ban in Mother’s materials filed in response to his emergency motion at the end of August, in the Ontario Superior Court.
[94] Mother’s position is that the Lebanese proceedings were started before the Ontario proceedings and, therefore, the Lebanese orders oust the jurisdiction of the Ontario Court.
[95] Mother’s expert, Chawkat Houalla, a Lebanese lawyer, opined that the “proceeding” in the Maronite Church commences with the filing of an application for annulment with the Bishop of the Maronite Catholic church. It is that official who issued the travel ban and temporary custody orders in this case. Next, the case is transferred to a “competent court” of the Maronite church who, in this case, issued the order to appear on 30 November 2022. The expert opined that it is usual for court to make a travel ban for children of the marriage in which a petition to annul has been filed, when that petition is made immediately before the summer break, in order to prevent people from taking children out of the jurisdiction, thereby frustrating the jurisdiction of the court. It is also customary to issue a temperate custody order when one of the parents is not in Lebanon.
[96] Mother’s expert’s evidence is that the proceeding begins when the petition is first brought, not when the responding party is notified of it. In any event, Father was given no written notice of the proceedings at the 9 August meeting and this is adequate notice, in Lebanon. Further, the expert notes that the travel ban indicates that the judge made travel ban and the custody order after hearing from both parties, presumably Father, on nine August.
[97] Based on her expert’s opinion, Mother’s position is that the 9 August 2022 meeting constituted notice of the commencement of the proceeding within section 41(1) (a) and (b). Father’s expert disagrees with this position.
[98] Father’s expert, Archbishop Elie Bechara El Haddad, in his opinions, opined that the 9 August meeting is the church’s attempt at reconciliation. It is not the commencement of a proceeding. Once the petition is presented, the local parish priest or his delegate meets with the parties in order to attempt a reconciliation. If there is no reconciliation, then the petition is submitted to the Court. The meeting to reconcile is not the beginning of a formal process. He acknowledged it was customary for a travel ban issue before any reconciliation is attempted. The Archbishop says that the proceeding begins when the respondent is notified of the date of the hearing to determine the subject of the dispute along with the petition for annulment. Implicitly, the Archbishop refers to the commencement of the proceeding as 2 October 2022, when Father was provided translations of the written notice of the 30 November hearing date.
[99] I need not decide whether the 9 August meeting was or was not part of the proceeding, or when the proceeding commenced.
[100] Under s. 41 of the CLRA, I must defer to the jurisdiction of the Lebanese Court unless under subsection (1)(a) there has been no “reasonable notice” to the applicant, or under subsection (1)(b), the respondent was not given a reasonable opportunity to respond.
[101] Based on the foregoing, since the applicant Father was not given reasonable notice of the proceedings commenced against him in Lebanon nor was he given reasonable opportunity to respond, in writing, to the specific factual and legal allegations against him, before 2 October 2022, based on the evidence before me I can only conclude that section 41 a and B are operative.
Order
[102] Based on the foregoing, I order as follows:
a. This Court has jurisdiction over this matter pursuant to rule 5(1) of the Family Law Rules and sections 22 and 42(1) of the Children’s Law Reform Act, RSO 1990 c C. 12, as amended, and has jurisdiction to make parenting and decision-making orders affecting them, pursuant to section 22 of the CLRA;
b. Ontario is the place of habitual residence of the children, namely Adam Barakat (“Adam”), born September 18, 2014 and Ella Barakat (“Ella”), born June 28, 2018;
c. The Respondent Mother shall return the children to the habitual residence, namely 1036 Fleet Street Mississauga, ON L5H, immediately;
d. The return of the Children shall be at the Respondent’s own cost;
e. The Royal Canadian Mounted Police, the Ontario Provincial Police, and the Peel Regional Police shall take whatever steps they deem appropriate to support the enforcement of the return of the said children to1036 Fleet Street Mississauga, ON L5H 4C6, in accordance with this Order including liaising with INTERPOL and police organizations in Lebanon, pursuant to section 36 of the CLRA;
f. On an interim basis,
i. the Applicant shall have sole decision-making responsibility with respect to all issues regarding the children pursuant to section 16, 16.1, and 16.3 of the Divorce Act, RSC, 1985, c. 3 (2nd Supp.) as amended, and sections 20(7), 21(1), 24, and 28 of the CLRA.
ii. The children shall primarily reside with the Applicant, with the Respondent having parenting time with the children in accordance with any further order of the Court;
iii. The Respondent’s consent as it applies to any signature and/or consent for legal documents (schooling or otherwise) with respect to the children is dispensed with, pursuant to sections 16 and 16.1 of the Divorce Act and sections 24 and 28 of the CLRA.
iv. The Applicant shall hold the said children’s passports (Lebanese and Canadian), birth certificates,
v. health cards, pursuant to sections 16 and 16.1 of the Divorce Act and sections 24 and 28 of the CLRA.
g. The Applicant shall serve his Application and documents in this proceeding on the Respondent via email at andraosluna@gmail.com, pursuant to rule 6(15) of the FLR.
h. The Applicant shall serve and file his Form 13.1 Financial Statement by 4 pm, 17 February 2023;.
Costs
[103] The Applicant was successful on this motion and is presumed entitled to his costs.
[104] Both parties have filed bills of costs. Father seeks partial indemnity costs at $18,143.62 all-inclusive, and substantial indemnity costs of $22,679.52 and substantial indemnity costs. Mother seeks partial indemnity costs of $7224.77, and substantial indemnity cost of $6933.02. All of these totals do not include any costs attendant on answering the three evidentiary questions I posed at the outset of the motion or the subsequent filing that was made.
[105] Accordingly, I shall receive submissions on costs in writing.
[106] Counsel shall provide me with updated bills of costs and cost submissions addressing who shall pay whom costs, and in what amount. Submissions are limited to two double spaced, typewritten pages excluding bills of costs and offers to settle. The applicant father’s submissions shall be served and filed not later than 4 PM 10 February 2023 and the respondent mother’s by 4 PM 24 February 2023.
Trimble J.
Released: January 23, 2023
COURT FILE NO.: FS-22-113-00
DATE: 2023 01 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMIN JOSEPH BARAKAT
Applicant
- and -
LUNA MOUNIR ANDRAOS
Respondent
ENDORSEMENT
Trimble J.
Released: January 23, 2022