Nabout v. Hashem, 2024 ONSC 1610

Court File and Parties

Court File No.: FC-234/20 Date: 2024/03/18 Superior Court of Justice - Ontario

Re: Fatema Nabout, Applicant And: Mahmoud Hashem, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Olayemi Jacob Ayoola, for the Applicant Self-Represented, Respondent

Heard: March 14, 2024

Endorsement

Appearances By Zoom Video: Ayoola – Applicant Rasim Misheal, - OCL

Endorsement

1The waste and inefficiency on this file has to stop.

2I have expressed this in multiple previous endorsements, most recently in my April 12, 2022 Trial Scheduling Conference endorsement which included the following:

1. In my lengthy endorsement of December 20, 2021, I set out my concerns about the lack of progress in resolving this file.
2. The father lives in Saskatchewan. The mother and the children ages 17 and 11 live in Hamilton. The threshold issue is that the father is insistent that the children should return to Jordan.
3. On December 20, 2021 the father revealed that even though this case was well underway, he had also commenced a court case in Saskatchewan and he wanted that case to proceed in priority to this Ontario case.
4. Accordingly, I adjourned the Trial Scheduling Conference to this date to allow the father to take whatever steps he intends to take in Saskatchewan.
5. However, today the father advised that he has not been able to serve the mother with his Saskatchewan court documents here in Hamilton. He blames the mother for being uncooperative. The father has not apparently followed up on any of the mechanisms available to a litigant if they are having difficulty with service. The time since December has been wasted.
6. So we have the mother seeking a final resolution in Hamilton, and we have the father now saying he wants to pursue an identical case in Saskatchewan – except he’s not really doing anything to diligently pursue the Saskatchewan case.
7. As well, the father now acknowledges that with the older child being “17 ½” he is old enough to decide for himself, so the father is no longer advancing a claim in relation to Malek.
8. I am concerned that the father appears not to be getting any legal advice even though at the very least he could get some free legal advice, and as a dentist I suspect he could afford to pay for at least a further consultation (he started out retaining counsel who pursued the matter aggressively).
9. If the father is not going to be diligent and sensible about pursuing this case, then I don’t think taxpayers in Ontario and Saskatchewan should be indulging his wastefulness and inefficiency. He appears to be hedging his bet by simultaneously pursuing identical cases in two provinces, hoping he gets the result he wants in at least one province.
10. The mother says she has a right to get support for the children. There is nothing that would have prevented the mother from bringing a motion for temporary support and she can still do so. That type of motion would likely require about 30 minutes of a judge’s time.
11. In contrast, the father previously indicated that if the matter proceeds to trial in Ontario he will be calling time-consuming expert evidence about the law in Jordan. And particularly since an interpreter is required, it is likely that we could be looking at a trial of two weeks or longer. He also said if he proceeds in Ontario and is unsuccessful, he will try again in Saskatchewan.
12. I am also concerned that this case has dragged on far too long from the children’s perspective. Every time we have a court attendance the OCL has to update his interviews. This is an intrusive process and it is disrespectful to children if we keep asking them what they want, and then we don’t do anything with that information.
13. The main application is adjourned to the timelines which are extended to December 2, 2022.
14. Motions may be brought and should proceed by Zoom.
15. Counsel may schedule a Trial Scheduling Conference once the father’s Saskatchewan proceeding is either completed or discontinued.
16. The father is to advise the mother’s counsel and OCL counsel prior to any court dates proceeding in Saskatchewan.

[3] Almost two years later, this case has come before me for yet another Trial Scheduling Conference. a. Except this time the self-represented father didn’t show up. (Counsel for the OCL sent him two emails, reminding him of the date and Zoom link). b. Just like he didn’t show up for a scheduled Trial Scheduling Conference with Justice Kril on January 23, 2024. c. Just like he didn’t show up or respond to a motion dealt with by Justice Brown on December 1, 2023. (The mother’s motion to have the father noted in default was dismissed because, as Justice Brown noted, he had filed an Answer, so the mother’s procedural approach was incorrect.) d. In fact, the father hasn’t been showing up or participating in this case for well over a year.

Background

[4] Ostensibly, this is a parenting dispute. But a brief overview reveals that the few legitimate issues don’t nearly justify the extraordinary judicial and community resources which have already been consumed – with the prospect of significantly more tax dollars being wasted unless this case is reined in. a. The parties were married in their native Jordan in 2002. b. They have two children. Malek was born on October 21, 2004 and is now 19 years old. Ryan was born March 23, 2010 and will be 14 in a few days. c. In about 2004 the parties started travelling around the world a lot, partially related to the father’s dental training. There were multiple destinations including Japan, various parts of the United States, various parts of Canada, and periodic return trips to Jordan. The younger child was born while they were living in Baltimore. d. As the marriage deteriorated, they started spending time apart from one another in different countries. Periodically one or both would return to Jordan. The children always remaining in the mother’s care. e. By about September 2013 the parties separated. Their respective travelling to various world destinations continued. The children remained with the mother. f. The mother and children had spent time living in Hamilton as far back as 2012. They permanently settled in this city in September 2019. At that point Malek was 14 and Ryan was nine. g. The father ended up residing permanently in Saskatchewan where he is a dentist. h. The father has not seen the children since 2017. i. Against that backdrop, on February 20, 2020 the father obtained a court order in Jordan granting him custody. The mother says neither the parents nor the children were living in Jordan at the time. She says the order was obtained without her participation, and she challenges its validity. The father says the order was obtained pursuant to the laws of Jordan, and that it is binding upon the parties and the children. j. Also in 2020 the mother commenced this Application in Hamilton. After being served with the mother’s materials, the father brought a summary judgment motion, seeking to have the children immediately returned to Jordan. He said he would return to Jordan to live with the children as soon as the Canadian court enforced the Jordanian order. It soon became apparent that the matter was much too complicated to proceed by summary judgment, and the Office of the Children’s Lawyer eventually became involved. k. At the outset, the father was represented by counsel. But when his summary judgment motion didn’t result in instant success, the father discharged his lawyer and since at least January 2021 the father has been representing himself. l. In 2021 the OCL reported that both children were adamantly opposed to being forced to relocate to Jordan, and they weren’t even ready for face-to-face contact with the father. At that point they hadn’t seen him for years. They were prepared to consider slowly rebuilding a relationship with their father, but not until he withdrew his request to take them to Jordan. They were fearful of being sent to a far away country they had no connection with. They didn’t want to leave Hamilton and they especially didn’t want to leave their mother. m. The father declined invitations that he visit Hamilton to try to rebuild his relationship with the children. He kept insisting that he would continue working as a dentist in Saskatchewan until the Hamilton court forced his children to go to Jordan. Only then would he leave Saskatchewan and join his children in Jordan.

The Issues

[5] Originally – on paper – there were two fundamental issues: a. Firstly, the threshold issue of jurisdiction. The father says Canadian courts have no jurisdiction over his children because the Jordanian order must prevail. The mother challenges the legitimacy and effect of the Jordanian order, and she asserts that Canadian courts have jurisdiction over Malek and Ryan. The OCL supports the mother’s position on this issue. b. More broadly, a determination of parenting issues. The mother’s application sought custody, with a restriction against the father taking the children out of Canada. The father wanted the children placed in his custody in Jordan. The father was not interested in having access or parenting time with the children in Canada (in either Ontario where they live, or in Saskatchewan where he lives). The OCL supports the mother’s position on parenting issues as well.

[6] These were important, triable issues raised by the father. a. At first, he presented himself as being seriously committed to advancing this case. b. He outlined the extensive professional evidence he would be assembling with respect to recognition of the Jordanian order. c. It was clear that this would lead to a complicated and time-consuming trial, involving multiple lawyers, interpreters, and expert evidence.

The Saskatchewan Proceeding

7But in December 2021 -- just as we were about to schedule a trial in Hamilton -- the father revealed that, unbeknownst to the mother, he had commenced identical proceedings in Saskatchewan. He was asking the Saskatchewan court to send his children to Jordan, even though the children have never had any connection with Saskatchewan. He candidly admitted he intended to pursue both court cases simultaneously, hoping that he would be successful in at least one forum. He had lost faith in the Hamilton court and wanted the Saskatchewan case to proceed to trial first.

8At that point, it was clear that the father was losing interest in the Hamilton proceeding. He wasn’t making disclosure. He wasn’t paying child support (he never has). He continued to decline opportunities to see the children in Hamilton. He withdrew his claim in relation to the older child. He appeared to be quite unconcerned about the amount of work and expense he was creating – in two provinces – because he was representing himself, so it wasn’t costing him anything.

9As set out in my April 12, 2022 endorsement, I was not prepared to allocate significant trial time to this matter in Hamilton, until this new inter-provincial jurisdictional issue was resolved: Either there was going to be a trial in Hamilton or in Saskatchewan, but not both. I endorsed that the application would be adjourned without a return date. Motions could be brought (for interim support, for example). A further Trial Scheduling Conference could be scheduled once the father’s Saskatchewan proceeding was completed or discontinued.

[10] A few months later, on June 14, 2022 the father’s Saskatchewan application was dismissed. Justice D.G. Gerecke’s endorsement: “The Petitioner did not appear, and the court made an attempt to phone him and reached only his voicemail. This application was brought several months ago and on February 1, 2022, Mr. Justice L.W. Zuk out of concerns as to jurisdictional issues adjourned the matter to today. The Petitioner had sought an adjournment of the application to obtain legal advice as he was self-represented. It was adjourned to today with his knowledge and he has not appeared furthermore Rasian Misheal appears as Counsel for the children in the Ontario proceeding. He advises that the matter before the Ontario Superior Court in which the father is actively participating is nearing trial. In that light and as it appears that this court is unlikely to have jurisdiction under Section 6 of the Children's Law Act 2020 which would require that the children have been habitually in Saskatchewan among other things and in fact the evidence is that the children have never been in Saskatchewan, In light of the Petitioners nonexistence and the status of the Ontario matter this application is dismissed.”

11So the father lost interest in the Saskatchewan court case. He has apparently lost interest in this Ontario court case. He is no longer filing required documents and he is failing to appear in our court. And he has long-since lost any actual interest in seeing his children.

Analysis

12And yet the mother’s counsel suggests we have no alternative but to schedule a potentially lengthy and complex trial to deal with a jurisdictional dispute which may have been a triable issue years ago – but which now seems to be driven by little more than unreflective inertia.

13Jurisdiction is a threshold consideration in all court proceedings. But particularly where children are involved, we cannot allow ponderous and ineffectual challenges to jurisdiction to become strategic roadblocks by obstructionist litigants.

14Why should Ontario taxpayers keep funding the father’s “day in court” when he can’t be bothered to show up for court? We’re still dancing to his tune, but he’s moved on.

Conclusion

15I am not prepared to schedule a trial until we clarify what’s really in dispute, and who’s actually going to participate.

16I agree with the OCL: The mother should bring a motion to strike the father’s pleadings, and if successful, proceed to address all issues on an uncontested basis.