Court File and Parties

COURT FILE NO.: FS-22-31576 DATE: 20231122 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SYED HASSAN MURTAZA, Applicant AND: MARIYA BANO KHAN, Respondent

BEFORE: M. D. Faieta J.

COUNSEL: Sanjay Patel, for the Applicant No one appearing for the Respondent

HEARD: November 20-21, 2023

Endorsement

Faieta J.

[1] The Applicant father states that the Respondent mother wrongfully removed their three sons to Pakistan on or about Thursday, November 16, 2023 and he brings this motion for the following relief:

• The Applicant is permitted to bring a Motion to be heard on an urgent basis as per his Notice of Motion Form 14 dated November 16, 2023, wherein he is seeking the safety and return of the children.
• The Applicant is permitted to abridge the timelines for service of the herein materials as required by the Family Law Rules.
• The Applicant is permitted to serve the Respondent by email.
• The children namely Zoran Syed Hassan [age 13] (hereinafter “Zoran”), Zarayb Syed Hassan [age 10] (hereinafter “Zarayb”) and Zaviyar Syed Hassan [age 8] (hereinafter “Zaviyar”) shall be returned to Ontario immediately subject to sections 40 and 46(5) of the Children's Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”), Articles 7, 8 and 12 of the Convention.
• The children shall be returned to the Applicant’s care immediately subject to sections 40 and 46(5) of the CLRA, Articles 7, 8 and 12 of the Convention.
• The Respondent shall be restrained from being near the Applicant or the children in the interim.
• The Applicant shall have sole interim decision-making responsibility for the children.
• An Order that the police including the Peel Regional Police, the Ontario Provincial Police, and the Royal Canadian Mounted Patrol (RCMP), shall assist in returning the children to the Applicant as soon as possible and shall make efforts to ascertain whether the children have travelled outside of Canada and shall provide the results of any such finds to the Applicant.
• An order that pursuant to section 36(2) of the CLRA, any member of any police including the Peel Regional Police, the Ontario Provincial Police, and the Royal Canadian Mounted Patrol (RCMP), or any police force having jurisdiction where the children may be found, are directed to forthwith locate, apprehend and deliver children to the Applicant.
• An order that pursuant to 36(4) of the CLRA any police service having jurisdiction where the children may be found shall do all things reasonably able to be done to locate, apprehend and deliver children in accordance with this order.
• An order that pursuant to Section 36(5) of the CLRA, for the purpose of locating and apprehending the children in accordance with this order, any member of any police service having jurisdiction where the children may be found may enter and search any place where anyone has reasonable and probable grounds for believing that the children may be, with such assistance and such force as are reasonable in the circumstances.
• An Order noting the Respondent in contempt of Justice Pawagi’s Order dated February 18, 2023.
• An Order that the Respondent's bank accounts in Canada be frozen until further Order of this Honourable court.
• An Order for the Respondent's income to be garnished and paid to the Applicant until a further Order of this Honourable Court.
• An Order that the Respondent pay the Applicant costs for this Motion on a complete indemnity basis.
• An order that children have been wrongfully removed from their place of habitual residence, pursuant to Section 40 of the CLRA, Article 3 of the convention on the Civil Aspects of International Child Abduction and Article 15 of the Convention.

[2] When counsel for the Applicant attempted to provide counsel for the Respondent with a copy of the motion materials, Applicant's counsel was advised that he was no longer representing the Respondent and provided Applicant’s counsel with a copy of a Notice of Change in Representation dated November 9, 2023 and digitally signed by the Respondent on November 13, 2023, but not served and filed with the court as required by r. 4(10) of the Family Law Rules, O. Reg. 114/99.

Background

[3] The background facts are gleaned from the Applicant’s affidavits, the oral evidence that he provided and the Endorsement of Pawagi J. of the Ontario Court of Justice dated February 18, 2022.

[4] The parties are Pakistani citizens. In 2005, the parties were married in the United Arab Emirates.

[5] As noted, there are three children of the marriage:

• Zoran, age 13;
• Zarayb, age 10; and
• Zaviyar, age 8.

[6] All three children were born in the U.A.E. The children have lived in the U.A.E. and most recently in Canada.

[7] In 2022, each of the parties applied to the Ontario Court of Justice for an order that the children primarily reside with them. The Endorsement of Pawagi J. dated February 18, 2022 is attached. I rely on the evidence outlined at paras. 1-24 of the Endorsement and need not repeat it here. Before Pawagi J., it was undisputed that “the children’s habitual residence is now Ontario”: at para. 23 of the Endorsement.

[8] The court ordered on a temporary, without prejudice basis, that the two older children would primarily reside with the Applicant father and that the youngest child would primarily reside with the Respondent mother. The court ordered that all three children would attend Jean Lumb Public School in Toronto. The court ordered that the children shall spend weekends together with the Applicant father on the first weekend of each month and that the Respondent mother would have parenting time with the three children on all the other weekends. Significantly, the court ordered that:

Neither party shall remove the children from Ontario without further court order.

[9] On March 25, 2022, Pawagi J. issued a further temporary, without prejudice, Order that replaces the February 18, 2022 Order. The Endorsement states:

The three children … shall spend equal time with both parties as follows:

(a) Monday and Tuesday overnights with the Applicant father; (b) Wednesday and Thursday overnights with the Respondent mother; (c) Weekends (Friday, Saturday and Sunday overnights) alternating between the responding parties.

Neither party shall remove the children from Ontario without further court order.

The parties may change the above schedule by agreement, confirmed through counsel in writing.

Neither party shall change any of the children’s enrolment from Jean Lumb Public School except by agreement confirmed through counsel in writing, or by further court order.

[10] A further Endorsement dated May 31, 2022, by Pawagi J., is relevant in that it provides:

Each party shall notify the other forthwith if there is any change with respect to the children (including but not limited to medical issues, school issues, change in children’s cell phone number).

[11] The Applicant states that he commenced this Application as his request for an equalization of their net family property is available in this court and unavailable in the Ontario Court of Justice. The Orders made by Justice Pawagi in her Endorsements dated March 25, 2022 and May 31, 2022 remain in effect and have not been superseded by an order issued in this court.

[12] In the Answer that she filed in this court on January 26, 2023 in response to the Application, the Respondent mother states that the parties have followed the schedule outlined in the March 25, 2022 Order.

[13] The parties were last before this court two months ago. On September 1, 2023, this court ordered that the Respondent provide financial disclosure in respect of her worldwide property in order to quantify the Applicant’s claims for child support and equalization of net family property.

[14] Until the events described below, the parties have followed the parenting schedule in the Ontario Court of Justice orders.

[15] On November 16, 2023 the Respondent sent a text to the Applicant which stated that the children would not be in school on November 17, 2023. He went to her home and found it abandoned and without furniture in the home. The Applicant called the children’s cell phones but there was no answer. The children did not attend school on November 16, 2023 and November 17, 2023. The Applicant’s lawyer contacted the Respondent’s lawyer and was provided with a Notice dated November 9, 2023 which states that the Respondent would be representing herself in this court.

[16] The Respondent mother has failed to comply the parenting orders issued by the Ontario Court of Justice in several ways. First, the Respondent has removed the children from Ontario without first obtaining court approval. Second, the Respondent mother has failed to notify the Applicant of her intention to move from her home, to remove the children from school and to remove the children from Ontario. Third, the removal of the children from Ontario has resulted in the Applicant father not having parenting time with them on November 20 and 21, 2023, as would have been the case if they remained in Ontario.

Analysis

[17] The Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"), is the usual legal basis for securing the prompt return of a child to their habitual residence when that child has been wrongfully removed to another country. In Ontario, the Hague Convention is implemented by s. 46 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Two problems arise in relation to the use of the Hague Convention in this instance. First, it is typically relied upon in cases when the child is physically present in the court where the Hague Convention application is brought. Second, while both Canada and Pakistan are signatories to the Hague Convention, it is not in effect between both countries as Canada has not accepted Pakistan’s ascension: see Hague Conference on Private International Law, Acceptances of Accessions: Pakistan online: HCCH https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=1358.

[18] Nevertheless, this court is not without authority to order that a parent return a child to Ontario when neither the parent nor the children is physically present in Ontario. Under s. 22(1)(a) of the CLRA, a court has the authority to make a parenting order when that child is habitually resident in Ontario at the commencement of the application for the parenting order. The Application in this case was commenced on November 3, 2022 while the children were subject to the parenting orders issued in the Ontario Court of Justice on the undisputed view that the children were habitually resident in Ontario. The children continued to be habitual residents of Ontario at the time that they were removed by the Respondent mother from Ontario on or about November 16, 2023. Accordingly, I find that this court has the jurisdiction pursuant to s. 22(1)(a) of the CLRA to make a parenting order.

[19] Under s. 28 of the CLRA, a parenting order may: (a) grant parenting time and decision-making responsibilities to one or more persons; (b) determine any aspect of the incidents of the right to decision-making responsibility or parenting time, as the case may be, with respect to a child; and (c) make any additional order the court considers necessary and proper in the circumstances. Clauses 28(1)(b) and 28(1)(c) of the CLRA provide a court with authority to “make orders about almost any aspect of the child's life, including education, religious training, diet, vaccinations, recreation, travel, and so on.”: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 51. Analogous provisions were found to permit a court to order the return of a child from another country: Valenzuela-Sone v. Barnachea, 2023 ABKB 495, 10 W.W.R. 669, at paras. 54-61. An order that requires a child that was wrongfully removed to another country to be returned to their habitual residence so that the child may resume living in accordance with parenting arrangements approved under the CLRA is an order that touches on many aspects of the child’s life and comes within the broad scope of ss. 28(1)(b) and 28(1)(c) of the CLRA.

[20] As stated above, the Respondent mother has failed to comply with the parenting orders issued by the Ontario Court of Justice in several ways. In addition, the Respondent mother has also failed to comply with the notice and approval provisions found in s. 39.3 of the CLRA which prohibits a person who has parenting time in respect of a child from making a “change of residence”, or in the child’s residence, unless they provide notice to a person who has parenting time under an order with written notice of when of the date on which the change is expected to occur and the address of the new residence and contact information of the person and the child.

[21] Given the circumstances described above, I order that the Respondent immediately return the three children to Ontario.

[22] The Applicant father further seeks an order requiring the police to enforce this Order pursuant to ss. 36(2) and 36(4) of the CLRA which states:

Order to locate and take child

(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to decision-making responsibility, parenting time or contact with respect to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or (c) that a person who is entitled to parenting time or contact with respect to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

Duty to act

(4) The police force directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order.

[23] The broad language of s. 36 of the CLRA does not give this court authority to make orders requiring foreign police forces to search premises, remove children or return children to Ontario. Given the doctrine of territorial sovereignty whereby each state exercises exclusive jurisdiction over its own territory, it is my view that this court has no jurisdiction to direct that a police force outside of Ontario take the steps required by ss. 36(2) and 36(4) of the CLRA: Jomaa v. Bechara, 2017 ONSC 3353, W.D.F.L. 3384, at para. 82.

[24] This court asks that any police force in Pakistan such as the International Police Organization's (INTERPOL) National Central Bureau for Pakistan, take all steps that they deem appropriate to enforce the orders of this court, particularly with respect to the return of the children to their habitual residence in Toronto, Ontario.

[25] The Applicant father also seeks an order restraining the Respondent mother from being near the Applicant father and the children. This relief makes little sense to consider until the Respondent and the children are returned to Ontario. The Applicant father also seeks an order that the Respondent mother is in contempt of Pawagi J.’s Order dated February 18, 2023. First, that Order is no longer in effect and has been replaced. Second, the requirement of service of a Notice of Contempt Motion in Form 31 has not been satisfied nor has relief, if available, from such requirements been sought. Accordingly, the contempt order sought is denied on a without prejudice basis to a further contempt motion.

Order

[26] Order to go as follows pursuant to s. 28(1) of the CLRA:

(1) The Respondent mother shall immediately return the children to their habitual residence, and the Applicant father’s care, in Toronto, Ontario at the Respondent mother’s sole expense. (2) The Applicant father shall hold all of the children’s passports and government issued documentation until further order of this court. (2) Upon their return to Ontario, and on a temporary basis and until further order of this court: (a) The children shall solely reside with the Applicant father and the Respondent mother shall have liberal access at the discretion of the Applicant father. (b) The Applicant father shall have sole decision-making responsibility in respect of the children.

[27] Order to go as follows pursuant to ss. 36(4) and 36(5) of the CLRA:

(1) Upon request and receipt of an original court order or certified copy of the order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area in Ontario where it appears that any of the children may be, shall: (a) locate, apprehend and deliver the children to the Applicant father. (b) do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order.

[28] Order to go as follows pursuant to the Family Law Rules:

(1) Pursuant to Rule 1(8), the Respondent shall not participate in the within proceedings (including filing evidence or making submissions) without first appearing in person before this court and obtaining permission from the court to do so. (2) Pursuant to Rule 24, the Applicant shall deliver his costs submissions, to maximum of three pages, along with his Bill of Costs, by November 29, 2023. If she has complied with paragraph 1 above, the Respondent may deliver her responding costs submissions, to a maximum of three pages, by December 6, 2023. (3) Service of any document in this proceeding that is not required to be personally served under the Family Law Rules, may be served on the Respondent by emailing that document to her. (4) This motion is permitted to be heard on an urgent basis and timelines for service of the motion materials are abridged.

[29] The dates of birth of the children have been omitted from this decision. In preparing a draft Order for this court’s review, the Applicant shall include that information.

[30] Finally, I direct that the Applicant deliver a copy of this Endorsement to:

• Vulnerable Children's Consular Unit, —Consular Services—Global Affairs Canada—125 Sussex Drive—Ottawa, ON K1A 0G2
• INTERPOL Ottawa, a.k.a. the Canadian National Central Bureau —Royal Canadian Mounted Police—RCMP National Headquarters—Headquarters Building—73 Leikin Drive—Ottawa ON K1A 0R2

Mr. Justice M. D. Faieta Released: November 22, 2023