COURT FILE NO.: FC1068/22

DATE: February 16, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Lubna Aldahleh

Applicant

• and -

Zakaria Abdelrahman Mohammad Zayed

Respondent

Counsel:

Lubna Aldahleh, in person

Abeer Abosharia and Bayly Guslits, for the Respondent

Rasim (Sam) Misheal, for the children

Anthony Macri, amicus curiae

HEARD: December 11–15, 18–22, 2023, January 2–5, 19 and 29, 2024

TOBIN J.

REASONS FOR JUDGMENT

Introduction

The issue

[1] The issue to be decided in this case is whether the court in Ontario should exercise its jurisdiction to make a parenting order with respect to the parties’ three children, or direct that the children be returned to Kuwait so that parenting issues may be addressed there.

The parties, children, amicus curiae and Children’s Lawyer

[2] The applicant (mother) and the respondent (father) are the parents of three children, now ages 13, 11, and 6. The 13- and 11-year-old children are Canadian citizens.

[3] The mother is 39 years old. She is a Jordanian citizen. She has lived in Ontario with the children since July 2021. Prior to that date, she and the children lived in Kuwait. She wants to remain in Ontario with the children.

[4] The father is 44 years old. He is a Jordanian citizen but with residency status in Kuwait. He wants the children returned to Kuwait.

[5] Amicus curiae was appointed by order of Sah J. dated November 20, 2023. See Aldahleh v. Zayed, 2023 ONSC 6540. Mr. A. Macri’s role, as amicus, according to the court order, was to ensure the trial was orderly and fair to all parties.

[6] The three children were represented by Mr. S. Misheal on behalf of the Children’s Lawyer. A clinical assist was provided by Ms. L. Heslop.

The trial

[7] A brief comment about the length of the trial is not usually provided in reasons for judgment but, in this case, I am of the view it is needed.

[8] At the trial management conference, the trial was scheduled to take place over six days. However, the trial took 16 days to complete. The reasons for the additional time it took to try the case were as follows:

1. This was a hybrid trial with counsel in the courtroom, and the parties and witnesses testifying remotely.

2. There were a number of Arabic/English interpreters, some of whom attended in person, and some remotely. It took time for all participants in the trial to speak in a manner that allowed the interpreters to accurately translate and repeat what was said.

3. Court started at 9:00 a.m. and ended at approximately 4:30 each day, and sometimes longer, to accommodate witnesses testifying from Kuwait and to maximize available court time.

4. The parties were required to provide their evidence in chief by way of affidavits limited to 27 pages. At the trial, they also needed to provide lengthy oral evidence to address the many documents filed. These documents were not made exhibits to their respective affidavits. Much of the time expected to be saved by having the parties’ evidence-in-chief go in by way of affidavit was lost as a result.

5. The parties filed extensive documentary evidence. The mother’s CaseLines file contained 3,600 pages. The father’s CaseLines file contained 740 pages. The Children’s Lawyer’s CaseLines file contained 1,264 pages. The amicus' CaseLines file was 242 pages. At the end of the trial, there were 106 numbered exhibits and 31 lettered exhibits. The volume of evidence increased the time it took for each party to be examined in chief and then cross-examined. For example, at the trial management conference, the cross-examination of the father was expected to take 4 hours. Amicus cross-examined the father for 1.75 hours. The mother’s cross-examination of the father was approximately 7 hours before I stopped it from continuing. The intention was not to have a trial by stopwatch but some limits had to be imposed, especially when the relevance of much of the evidence provided did not appear helpful to the determination of the issues raised in this case.

6. After the trial management conference was held, an order appointing amicus curiae was issued. This added another voice to the proceeding. Mr. Macri accepted the appointment of amicus curiae and was most helpful in attempting to keep the evidence focused on relevant issues.

7. All of the questions asked and the witnesses’ testimonies had to be translated to and from Arabic by a changing team of hardworking interpreters.

8. Some of the technology and equipment used by the participants made it difficult, at times, to ensure that all were heard clearly. Time was needed to ensure the evidence was heard accurately.

The issues

[9] The following issues were directed to be determined by the trial management conference judge:

1. Were the children habitually resident in Ontario under s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12., (“Act” or “CLRA”), at the time the application was commenced?

2. If not, does s. 22(1)(b) apply, allowing the court to exercise its jurisdiction? To the extent relevant, does s. 41 of the CLRA factor into this analysis?

3. If not, does s. 23 of the CLRA apply on the basis that the children would suffer from harm if removed from Ontario?

4. If not, should the court apply its parens patriae jurisdiction per s. 69 of the CLRA in respect of the children?

5. If the answers to (1), (2), (3) and (4) are no, have the children been wrongfully removed to, or are they being wrongfully retained in, Ontario?

6. Should the court order that the children be returned to Kuwait under s. 40 of the CLRA?

7. If applicable, do ss. 42 and 43 of the CLRA apply to this case?

Credibility

[10] The parties provided different versions of different events that took place both before and after they separated.

[11] Credibility of the parties has been put in issue. This requires the court to consider the veracity and accuracy of the evidence.

[12] Credibility has to do with a witness’s veracity, that is, the witness’s willingness to tell the truth as they believe it to be. Reliability has to do with the accuracy of the testimony.

[13] This credibility assessment is made not in isolation but after a consideration of the totality of the evidence.

[14] In Novak Estate (Re), 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36–37, the court set out many of the tools for assessing credibility as follows:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 ¶¶ 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) ¶¶ 51-56).

37 There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R., [1966] 2 S.C.R. 291 at ¶ 93 and R. v. J.H. supra).

The mother

[15] The mother answered fully questions put to her, though sometimes with more information than was required.

[16] The mother was knowledgeable about the details of the case and had a strong grasp of the documentary evidence.

[17] In her evidence, the mother was able to identify some positive aspects of the children’s relationship with the father. This is to be contrasted with the father’s evidence that she was not a good mother. He did not allow a positive view of the mother, even though he did not contest the Kuwaiti court order that originally granted her custody of the children.

[18] The mother’s evidence remained consistent throughout her testimony. Her narrative was coherent and was corroborated by the documentary record. She acknowledged the adverse findings that had been made against her in Kuwait and explained them.

[19] During Ms. Guslits’ searching and lengthy cross-examination of the mother, she was not meaningfully impeached.

[20] Amicus submitted, and I agree, that the mother could be faulted for being too honest.

[21] Counsel for the Children’s Lawyer characterized the mother as “honest to a fault”.

[22] The mother gave evidence and tried to elicit evidence during her cross-examination of other witnesses that, on occasion, was not helpful to her case. I agree with Mr. Misheal that the mother had a “…deep commitment to truthfulness… [and that] … she prioritized truth over the potential impact on her position…”

[23] However, there were concerns raised that bear on the mother’s credibility.

[24] The mother did not fully comply with an order of the Ontario court regarding the children. This is a serious matter. As has been written many times, court orders are not suggestions, even if the motivation is said to be a concern for the children’s interests. However, the mother has appealed from the order and moved for a stay of its effect, pending the appeal. These steps have not yet been heard.

[25] A further concern is that, in a Kuwaiti court order made after the mother arrived in Canada, a finding of fraud was made against her.[^1] The basis of this finding of fraud arose because the mother “claimed to temporarily travel with the children to their country of origin, Jordan…”. In evidence, the father claimed the fraud related to evidence the mother gave the court in support of her request to travel outside of Kuwait. The father claimed that the mother gave the court a false itinerary of her proposed travel. The mother denied this was the case and produced the itinerary she said was provided. She also showed that there was an error in the English translation of the date of one of the documents referred to by the father. It was suggested that this change in the date undermined whether the fraud finding should be made. The mother also stated that she was not able to appear in person at the Kuwaiti court hearing in question because it did not allow for remote attendance.[^2] It is not proper for this court to look behind the Kuwaiti court order. The Kuwaiti court made a decision based on the evidence that was put before it. The father did not put all of those documents in evidence before this court.

[26] I will consider the Kuwaiti court finding of fraud when assessing the mother’s credibility. The finding of fraud is one factor to be considered in connection with the mother’s propensity for truthfulness exhibited in this case, among other factors, when weighing her credibility in this case.

[27] The father also argues that the mother’s credibility is suspect because she abducted the children from Kuwait. I do not put much weight on this submission. As will be explained below, I find that the mother genuinely and reasonably believed that she had the right and ability to move with the children from Kuwait when she did.

The father

[28] At times during the trial, while giving his evidence, the father did so in a measured and thoughtful manner.

[29] However, there are concerns with respect to evidence given by him.

[30] When asked about a spousal support collection matter directly, the father had difficulty answering questions put to him. He provided a narrative that had little obvious connection to the question asked. Another example of this was when he was asked about visits between himself and the child, B., after the parties separated.

[31] The father struggled in his answers in response to evidence of his inappropriate discipline of the children. In this regard, his evidence was not consistent with the documentary evidence in many respects.

[32] The father was evasive in answering questions about renewing his Ontario driver’s license when he was not resident in Ontario.

[33] He did not answer a question put to him about his American social security card.

[34] The father’s denial of knowledge of the payment of a child tax benefit from Canada Revenue Agency was not believable. The documents sent by the government were addressed to the same address the father used when he renewed his Ontario driver’s license.

[35] The father appears to have misled the Kuwaiti authorities when he unilaterally renewed the mother’s Kuwaiti residency status. Her status in Kuwait and right to remain in that country depended on her being his spouse. The father renewed the mother’s residency status the day before the divorce sought was granted. He renewed the mother’s residency status as his spouse again after they were divorced and the mother had already left Kuwait.

[36] The father’s unwillingness to concede any positive attributes to the mother’s care of the children is of concern. This evidence supports a finding that his interest in the outcome of the case is greater than his willingness to be candid and truthful. As noted above, he did not contest the mother’s claim for custody when the original order was made in Kuwait.

[37] The father was inconsistent in his expectations for access with the children should they return to Kuwait. Again, this suggests that his evidence in chief on this point had much to do with his interest in the outcome of the case.

[38] These examples bear on the credibility assessment that must be made regarding the father’s evidence. These are examples of inconsistency and weakness in the father’s evidence. The documentary evidence related to family violence and other circumstances of the parties before the mother left Kuwait is less consistent with his evidence than it is with the mother’s. This makes the mother’s evidence more plausible in relation to the core issues.

[39] Another factor that bears on the father’s credibility is the basis of his plan should the children be returned to Kuwait. It is premised upon the parties getting along and agreeing on important aspects of their responsibility for the care of the children. The basis of his plan is not consistent with the evidence of the parties’ relationship. It is predicated on an idealized version rather than existing circumstances.

[40] I find the mother’s evidence to be more credible and reliable than the father’s. Her evidence regarding the recollection of events was more vivid than the father’s and accords more with the documentary record.

[41] I am satisfied that the mother was more willing to speak the truth as she believed it to be than was the father.

[42] For these reasons, where the evidence of the parties differ relating to the issues, I prefer the evidence of the mother unless otherwise stated.

Overview of facts

[43] The following is an overview of the facts relating to the parties’ relationship, events that led the mother and children to come to Canada, and the litigation undertaken. These facts constitute an assembly of many details that give context to the issues that are before the court.

[44] Additional facts will be provided in relation to the issues raised.

Marriage and children

[45] Both parties are citizens of Jordan.

[46] The mother had been working in Jordan as an architect engineer before the marriage to the father.

[47] The father, though a Jordanian citizen, was born and raised in Kuwait. He has always lived in Kuwait. He is a sales manager of an engineering company.

[48] The parties met in Jordan in the summer of 2008.

[49] The parties married in Jordan on November 12, 2008.

[50] In June 2009, the mother resigned her employment in Jordan at the insistence of the father. The mother has not worked outside of the home since that date.

[51] On August 1, 2009, the parties moved to reside in Kuwait.

[52] They have become the parents of three children: B., now age 13, L., now age 11, and M., now age 6.

[53] In 2006, the father applied to become a permanent resident of Canada. In 2010, the parties were granted permanent resident status in Canada, but this status expired five years later. The father’s connection to Canada was through his employment. He worked with an information technology and security service company that provided services in the Toronto area. In 2007, they opened an office in Kuwait.

[54] The parties were in Canada for approximately two months in 2010. During this period, B. was born.

[55] In 2012, the parties returned to Canada for approximately two months. During this period, L. was born.

[56] Both B. and L. have Canadian and Jordanian citizenship and passports.

[57] While cohabiting in Kuwait, the mother assumed responsibility for the primary care of the children and home. The father was the family’s sole income earner. He described the parties as having a “traditional marriage. She was a full-time wife and mother.”

[58] In 2015, the parties’ permanent residence status lapsed because they had not lived in Canada for the required period.

[59] Problems in the parties’ relationship developed.

[60] The mother claimed the father was controlling of her and the children, and that he would physically discipline the children.

The first custody case

[61] In December 2017, the mother reported the father’s abuse to the police. She also started a court case seeking custody of the children.

[62] However, the mother did not proceed with the case. Her family, in Jordan, viewed her actions as shameful and put pressure on her to end the custody case. Because of this pressure and the father’s promise of better behaviour, the mother withdrew her complaint to the police and the custody case.

[63] The father denied being abusive. He agreed to try and reconcile with the mother. He stated, “in continuing with our marriage, I was perhaps too tolerant of [the mother’s] behaviour…”

[64] Subsequent to this reconciliation, the children were allowed by the father to be enrolled in some extracurricular activities.

[65] Nonetheless, problems in the relationship continued.

[66] The mother’s experience was that the father became more controlling and abusive. He would threaten to take the children away from the mother if she again sought custody.

[67] In June 2018, the mother and children went to stay in Jordan with her family. She wanted to “figure out what to do about [the] marriage.”

[68] While in Jordan, the parties’ youngest child was born. The father went to Jordan approximately one month after the child’s birth. Again, they discussed reconciliation. And again, with a promise of better behaviour and the lack of support from her family, reluctantly, the mother and children returned to Kuwait, on January 13, 2019. To address the mother’s fear that the father may try to take the children from her as he had threatened in the past, she was to have possession of the children’s passports and identification documents.

[69] The parties and children returned to their apartment in Kuwait, where they lived until August 1, 2019. The mother’s experience during this period was that the father’s “verbal abuse and physical punishment” of her and the children escalated.

[70] Another source of friction between them was the domestic help that the father wanted the mother to provide to his extended family.

[71] During the summer of 2019, the father wanted the mother and children to move into his mother’s apartment. The mother refused. Instead, they moved to a new apartment “very close” to the father’s mother’s apartment.

[72] Shortly after the parties moved to their new apartment, the father told the mother he wanted a divorce and that he was going to remarry. He wanted the mother and children to move to Jordan while he remained in Kuwait and would visit them in Jordan.

[73] The mother accepted that the father wanted to end the marriage. However, the parties continued to reside in the same apartment.

[74] The mother did not want to move to Jordan. She wanted to remain in Kuwait and take the necessary steps to do so.

The mother’s residency in Kuwait

[75] The mother’s residency in Kuwait was sponsored by the father. Her status was described as “joining a breadwinner”.[^3] The mother’s visa was set to expire in July 2020.

[76] The mother’s sponsorship could be transferred to a work sponsorship but this required the father’s consent or approval of the public authority of residency affairs.

[77] The father would not give his consent to transfer his sponsorship, so the mother began the process of seeking approval from the public authority.

[78] On September 25, 2019, the mother qualified to work as an architect engineer in Kuwait. She did this without advising the father. When he found out, he told the mother she was “damned”, because she was legally his wife and had disobeyed him.

Tensions continue to escalate

[79] On November 8, 2019, the father told the mother that he booked tickets for her and the children to travel to Jordan and transferred the children’s school to that location.

[80] On November 12, 2019, the father took the children and the mother to the airport. He wanted her and the children to leave and move to Jordan. However, as the mother had hidden the passports, they were unable to travel.

[81] On November 13, 2019, the father contacted the police and claimed the mother stole the children’s passports. After speaking with the police that day, the mother was not charged.

[82] The mother then began the process of seeking custody of the children.

Litigation begins

Custody

[83] On November 25, 2019, the mother started a court case against the father seeking custody of the children.

[84] The father did not object to this request.

[85] On February 11, 2020, the Hawalli Family Court granted the mother custody of the three children.

Support

[86] On November 28, 2019, the mother filed a case for spousal support, child support, and the payment of rent with the court.

[87] On August 27, 2020, the father was ordered to pay child support, spousal support and rent retroactive to November 28, 2019.

Transfer of residency sponsorship

[88] Also on November 28, 2019, the mother filed a lawsuit to have her residency sponsorship transferred without the consent of the father.

[89] This request was refused because the mother brought the case in the wrong court. The case was transferred to another court, which also rejected her claim. The mother determined that the way to transfer the sponsorship was to have the father agree or obtain an exemption from the appropriate ministry. The father would not consent. Despite submitting her claim to the ministry on humanitarian grounds, it was not accepted.

[90] The mother described in her evidence an incident, also in 2019, of physical violence against her by the father. She attempted to record the father’s behaviour towards her, and he assaulted her and took her phone.

[91] On December 8, 2019, the mother found a USB device which contained recordings from inside her home. When the father realized the USB was missing, he confronted the mother and took away many of her mobiles.

[92] On December 25, 2019, there was an incident of violence involving the mother, the father, and the father’s two brothers. The parties and the father’s brother, Omar Zayed, provided different versions. What was consistent in the three accounts is that the children, B. and M., were exposed to an angry and physical confrontation between the parties and the father’s two brothers. During this altercation, B. was pushed, or fell, to the ground.

[93] Despite this incident of violence, the mother and children did move to a new apartment the father had secured. The mother had no other alternative. Following this incident, the father spent most nights with his family members.

[94] The father would spend time at the apartment with the children.

[95] The mother experienced ongoing abusive behaviour from the father.

[96] On December 29, 2019, the mother reported the abuse she suffered the day before to the police. The father and his brothers were incarcerated until bail was paid that day.

[97] On December 31, 2019, the father filed a theft report against the mother, with the police. He alleged she stole his laptop and identification documents.

[98] On January 16, 2020, the mother learned that the father accused her of assaulting him on December 28, 2019.

[99] As set out above, on February 11, 2020, the mother was granted custody of the children by the Kuwaiti court. The father did not appeal that order.

The parties finally separate

[100] On March 11, 2020, as the mother and children were leaving the apartment to attend an appointment, the father returned.

[101] The father told the mother that if she left, she would be a “divorced woman (Islamically)”[^4]. She and the children left.

[102] When the mother and children returned to the apartment, she found that the locks had been changed. When the mother tried to get into the apartment, another angry and physical confrontation ensued.

[103] The mother described the father screaming at her. He hit her as well as the children. The situation was chaotic. All three children were crying.

[104] The father described that the mother tried to force her way into the apartment. He used his body to block her entering but denies hitting or kicking her.

[105] A police and hospital report filed[^5] discloses that B. was observed to have injuries to his “cheeks… left arm and in the right hand”. L. was observed to have “bruising in the legs.” M. was observed to have “redness of the neck and injuries in the left arm.”

[106] The version recounted by L. to Ms. Heslop was consistent with the mother’s version of events.

[107] The mother was prevented from retrieving personal possessions.

[108] Eventually, the father delivered all of the personal possessions of the children and the mother to her, in front of a police station.

[109] With the onset of the COVID-19 pandemic, the father’s parenting time became an issue for the parties. The mother facilitated electronic and distance contact between the father and children as she perceived to be safe.

[110] In these circumstances, the father asked the court for an order granting him the ability to see his children from Thursday at 5:00 p.m. until Sunday at 5:00 p.m. every week, including overnights.

[111] On June 4, 2020, the court ordered that the father could see the children each Friday from 11:00 a.m. until 3:00 p.m. The pickup and return of the children were to take place in front of the mother’s residence.[^6]

[112] On June 10, 2020, the mother obtained an order of the court in Kuwait barring the children’s travel without permission from the court.[^7] This order was sought by the mother because of her worry that the father would try to make good on his threats to leave with the children.

[113] The father’s first parenting time was on June 12, 2020. The mother observed B. to be crying when she picked up the children at the end of the parenting time. Based on the child’s comments to her, she took him for medical treatment the next morning. The mother understood from L. that the father hit B. because he did not kiss his grandmother. The report filed[^8] indicated that the child was “reactive, his vitals are stable…” There were bruises on the child’s nose and left ear, and a “surface scratch on the right hand…” The father explained the injuries occurred when B. was playing and fell at his grandmother’s house. The father did not see the fall or injuries as serious, “just a typical fall”. The Director of Community Police Department investigated.

[114] The mother’s observations were that the children, B. and L., experienced anxiety about going to these visits. The mother, however, encouraged them to go, and they did.

[115] The father’s observations were that the children were often excited to be in his care.

[116] For a few months after the initial visits, the father’s parenting time went well. He purchased B. gifts, such as a mobile, a laptop, and a tv. During this period, the parents were able to arrange for longer and additional visits.

[117] This state did not continue.

[118] For approximately five weeks in October and November 2020, the mother did not send the children for parenting time with the father. Her reason for not doing so was the father had Jordanian passports for the children issued, and a “blocking order” regarding their old Jordanian passports. Also in October 2020, there was a criminal charge brought against the mother for theft—of the missing documents referred to above. Within that charge, the prosecutor requested that the mother “be exiled outside the country after executing the punishment.”[^9]

[119] The mother understood that if she tried to leave Kuwait with the children, she would be arrested.

[120] Because of these concerns, the mother did not send the children to see their father and asked the court to suspend the father’s parenting time.

[121] On November 24, 2020, the court affirmed the original parenting order of June 4, 2020.

[122] The father’s parenting time then resumed. There continued to be problems with the children, B. and L., attending.

The mother seeks a guardianship order

[123] In August 2020, the father wanted the children to attend a different school from the one they had been attending. The mother did not agree with this plan based upon the children’s wishes and her view that the school they attended was “an overall better school”.

[124] This prompted the mother to seek an order for guardianship of the children, which she filed on August 11, 2020.

[125] On September 1, 2020, the father filed a police report against the mother based upon her not taking the children for an interview at the proposed new school. In Kuwait, as their father, he had the automatic right to educational guardianship, that is, the right to make decisions regarding the children’s education.

[126] The mother was successful in her request. On September 22, 2020, the mother was granted guardianship (i.e., decision-making responsibility) regarding the children’s education. By order of the court in Kuwait on November 15, 2020, the mother was granted guardianship with respect to the children’s schooling, passports and identification documents, medical and health decisions, all “without referring to the father.”[^10]

[127] On December 1, 2020, the father renewed the mother’s sponsorship to remain in Kuwait for one year. He did so on the basis that the mother was his wife.

[128] The very next day, December 2, 2020, the father obtained a divorce order as against the wife.[^11] This started a three-month waiting period during which the father had the opportunity to revoke the divorce. If not revoked, the divorce would “become official”.

More litigation ensues

[129] From December 2020 until March 2021, the parties engaged in a number of legal proceedings. These proceedings related to parenting, appeals by the father with respect to the mother’s educational guardianship, passport and identification documents, and the father’s failure to deliver the children’s passports to the mother.

[130] On March 23, 2021, the father’s parenting time was increased to Fridays at 10:00 a.m. until 5:00 pm. Exchanges were to take place at a supervision facility called Vision Centre.

[131] Also in March 2021, the three-month waiting period for the divorce ended and it became official. It was the mother’s understanding that, as her sponsorship was based on being the wife of the father, she was not eligible to remain in Kuwait under the father’s family sponsorship. She further understood that she had to leave Kuwait. The mother did not want to relocate to Jordan as she did not have the support of her family.

[132] In early April 2021, the mother’s father died in Jordan. The mother was not able to return to Jordan. She feared that if she left without the children, she would not be able to return, as her residency depended upon her being married to the father. As well, the father had refused to provide her with the children’s passports despite an order of the court, dated January 26, 2021, requiring him to do so. He did not provide the mother with the passports until April 29, 2021.

Vision Centre

[133] The Vision Centre opened a file for this family on April 19, 2021, with the first exchange taking place on April 23, 2021. According to the mother, on that latter day, B. and L. refused to go with their father. Eventually, with the mother’s encouragement, L. and M. did go with the father. The same occurred on April 30, 2021 and May 7, 2021. During these exchanges, the mother observed the Vision Centre counsellor, Hani Al Qalaf, shout at B. for refusing to go with the father. This shouting upset B.

Events of May 14, 2021

According to the mother

[134] The mother again attended at the Vision Centre with the children on May 14, 2021. It was Eid. B. was crying and refused to go with the father. Mr. Al Qalaf came outside of the Vision Centre and told the mother to wait with B. inside. M. and L. went with the father. After waiting inside for approximately 1.5 hours, Mr. Al Qalaf returned and told the mother to go to her car and leave B. at the Centre. The mother did as she was asked. Shortly thereafter, she saw L. and B. come out of the Centre, both crying and upset. The two children ran to the mother’s car and got inside. The mother then went into the Centre to ask “mercy for the children” from Mr. Al Qalaf. Based on his response to her, the mother was afraid that a false report would be prepared to the effect that she was a “neglectful mother”, so that she would lose custody. The mother took a video with her phone to show, if needed, that the father kept M. At 5:00 p.m., M. was returned.

According to the father

[135] According to the father, on May 14, 2021, all three children were happy to go with him. Mr. Al Qalaf helped him take the children to his vehicle. It was the mother who intervened by claiming B. did not want to go. They all went inside the Centre, where the mother engaged in a verbal argument with centre staff and a security guard. She was asked to leave. The mother took L. and B. with her to her car. The mother then tried to take M. from the father. This resulted in a security guard trying to intervene. The father gave M. to the mother.

Court’s finding with respect to the events of May 14, 2021

[136] I find that the mother’s evidence regarding the events of May 14, 2021 to be more credible than the father’s. The mother provided significantly more detail regarding the events of that day than did the father. These details were consistent. The father’s observation that the children were happy to go with him is inconsistent with the uncontroverted evidence of what had happened previously. B. was reluctant to go with his father. The mother’s version of events is more consistent with all of the other evidence in relation to these children’s demeanour concerning parenting time. The evidence does not explain why the father needed the help of Mr. Al Qalaf to bring the children to his car if they were willing to go. I also take into account that there is a text message from the mother on May 14, 2021 that indicates she will receive M. at 5:00 p.m. That appears to be contemporaneously prepared evidence that the father did have M. with him, contrary to his assertion. I have also had regard to the father’s statement dated September 14, 2021, which is consistent with the mother’s version of events.[^12]

Events of May 21, 2021

[137] On May 21, 2021, the mother attended the Vision Centre with the three children for an access exchange. B. and L. refused to go with the father. M. did go with the father.

[138] Mr. Al Qalaf and the father, together with another employee of the Centre, were beside the mother’s car shouting at B. and L., who looked afraid. The mother called the Centre’s hotline to speak with its manager.

[139] The manager and the mother were able to convince L. to go with the father along with M.

[140] Some time later that day, the father called the mother and told her that L. wanted to return home early, at 2:00 p.m. As requested, the mother went to the Centre early. When she picked up the children, she took a photo to show she was there and exchanged the children. She suspected that the father would allege she did not come at 5:00 p.m. to pick up the children. Mr. Al Qalaf and another employee demanded the mother give over her phone. She refused. The police were called, came to the Centre and told her to go to the police station. They did not tell the mother what she had done wrong.

[141] The mother went home with the children. She was called by the police to attend at the police station. She went there with the three children. When she arrived, she saw the father laughing with Mr. Al Qalaf and the other employee. Mr. Al Qalaf verbally abused B., who was crying. The father did not intervene on B.’s behalf. The father asked the mother to sign a document giving him custody. He said that if she did, she could return home quietly. She refused. The mother was then arrested and held overnight.

[142] The evidence of B. and L., not denied by the father, was that when the father took the children from the police station that afternoon, he stopped along the way to purchase a cake. The children perceived this purchase as a celebration of what had happened to their mother.

[143] The next day, with the assistance of a lawyer, the mother was released. [^13] The father, who had kept the children overnight, brought the three of them to the police station and they left with the mother.

[144] While the mother was in police custody, an employee of the Vision Centre sent a WhatsApp message to her phone. She did not receive it until the next day. The message stated that “your child visitation file has been permanently closed, so please don’t attend to the centre at all by order of counsellor/Saleh Al-Rafk.”

[145] After reviewing this message, the mother did not attend at the Vision Centre with the children. She understood that the services offered there ended.

[146] The father’s evidence is that the file was temporarily closed.

[147] I do not accept the father’s evidence. It is contradicted by the WhatsApp message from the Vision Centre to the mother.

The mother applies for permission to leave Kuwait

[148] On May 24, 2021, the mother applied to a court in Kuwait for permission allowing the children “to travel, accompanied by their Jordanian custodial mother, to travel outside the country…”[^14] The mother’s evidence is that the request was refused because she had not “applied under the correct articles of law.”

[149] On June 14, 2021, the mother obtained permission from the Kuwait Ministry of Education to change B.’s and L.’s school to one outside Kuwait.[^15]

[150] On June 21, 2021, the mother again applied to a court in Kuwait for permission to travel with the children outside of the country. In the mother’s petition, she stated that her residency in Kuwait was “to join the family as a wife, while [the father] refuses to waive her sponsorship and allow her to transfer her residency in … Kuwait.” Accordingly, she was in violation of Kuwaiti residency laws and “…must leave the country because she is Jordanian…”[^16]

[151] The mother also submitted that the father requested of the Ministry of Interior, Residence Affairs Investigations (36/2021) that his divorced wife be deported as he is her sponsor.[^17]

[152] The mother’s request to travel with the children was granted on June 22, 2021.

[153] On July 10, 2021, the mother left Kuwait and travelled with the children to Canada. They have remained here since.

Litigation continues in Kuwait

[154] In late July 2021, the father learned that the mother was in Ottawa and tried, without success, to speak with the children.

[155] The mother contacted the father in August to let him know she and the children were in Canada.

[156] In August 2021, the mother was charged in Kuwait with abducting the children.

[157] On September 18, 2021, the father was able to speak by phone with the children for approximately seven minutes.

[158] On October 24, 2021, in Kuwait, a charge against the mother for abducting the children was dismissed.

[159] By order of a court in Kuwait dated November 2, 2021, the mother’s custody of the children was terminated. The father was granted custody. The mother chose not to participate in that case because she had custody under Jordanian law, permission to travel, and was not eligible to stay in Kuwait.

[160] The mother filed an appeal that was granted on January 25, 2022. The November 2, 2021 order was set aside.

[161] In February 2022, the father filed a petition for reconsideration. On June 28, 2022, the court upheld the original verdict granting the father custody of the children.

[162] The mother learned of the reconsideration decision granting the father custody on July 2, 2022. She subsequently learned that the father alleged she committed fraud when she obtained travel permission. The mother did not personally participate in that hearing.

[163] By Kuwaiti court orders made on July 19, 2022 and September 6, 2022, the father was granted guardianship, (that is, decision-making responsibility), for the children.

[164] On August 15, 2021, the father filed a complaint with the Kuwaiti Public Prosecutor seeking its assistance in having the children returned. On February 3, 2022, the court ordered the mother to submit a one-year personal guarantee of good behaviour. The mother did not provide this guarantee but appealed the order without success. On February 14, 2023, an appeal court affirmed the original order and imposed a fine of KD 500. The father’s evidence is that he will pay this fine if the mother returns to Kuwait.

Litigation in Ontario

[165] The mother’s application for relief in Ontario, including a parenting order, was issued October 7, 2022 with a first return date of January 31, 2023. The application was amended by the mother on October 3, 2023.

[166] The father’s answer dated April 11, 2023 sets out his challenge of this court’s jurisdiction to make the orders sought by the mother.

[167] This matter was before the court on May 26, 2023 for a four-hour special appointment. At that time, it became apparent that the father had not asked the court to apply the provisions of r. 37.2 applicable to this alleged international abduction case.

[168] When it became apparent that this rule applied to the alleged circumstances of this case based on the father’s pleading, an order was made in accordance with that rule. The Children’s Lawyer was notified, and the first meeting was scheduled.

[169] On June 2, 2023, a trial management conference was held, and a trial date fixed for July 31, 2023.

[170] On the date set for trial, counsel filed a consent endorsement request to adjourn the trial. The mother and the Children’s Lawyer wanted time to obtain expert reports related to foreign law. The father wanted time to engage in relationship counselling.

[171] On October 24, 2023, Sah J. held a trial management conference and completed a trial scheduling endorsement form. The trial was scheduled to start November 14, 2023 for a period of six days.

[172] As a result of motions for interim relief that were brought and the court’s schedule, the trial was not able to begin until December 11, 2023.

Legal framework

[173] Kuwait is not a party to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, (the “Hague Convention”). This means that the provisions of the CLRA apply to the determination of issues raised in this case. The CLRA provides a complete code for this purpose.

[174] The statutory scheme under the Act provides that an Ontario court can assume jurisdiction to make a parenting order with respect to a child on any one of four bases:

• Under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;
• Under s. 22(1)(b), if though not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;
• Under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; and,
• Under the court’s parens patriae jurisdiction to protect children, preserved by s. 69.

See: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, para. 12.

[175] The court must also consider s. 41(1) of the Act. This section requires the Court to recognize extra-provincial orders unless the enumerated circumstances apply.

[176] Section 19 sets out the purposes under Part III of the Act. They include discouraging child abduction, and that parenting determinations be made in the place to which a child has the closest connection, barring exceptional circumstances: F. v. N., 2022 SCC 51, paras. 8 and 49.

[177] The general purpose of s. 19 must guide the interpretation and application of ss. 22 and 23. The specific purposes of s. 22 include deterring parties from “forum shopping” to decide parenting disputes and, importantly, discouraging abduction: Ojeikere, at paras. 13 and 14.

[178] Regarding the concern with the children’s best interests, the court in Ojeikere stated at paras. 16 and 17 as follows:

[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

[17] Sections 23 and 69 also reflect the Legislature’s overriding concern with children’s best interests. Under s. 23, even where a parent abducts a child to Ontario, or withholds a child in Ontario and refuses to return the child to the child’s habitual residence, an Ontario court may still assert jurisdiction to decide custody and access in situations where the child faces potentially serious harm.

Issue no. 1—Were the children habitually resident in Ontario at the time the mother’s application was commenced?

[179] Section 22(1)(a) of the Act provides that a court shall only exercise its jurisdiction to make a parenting order with respect to a child if that child is habitually resident in Ontario at the commencement of the application for the order.

[180] Sections 22(2) ¶ 2 and (3) define when a child is habitually resident in Ontario. These sections are formulated as follows:

Habitual residence

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

2. 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.

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.

[181] In this case, the application for the court order brought by the mother was issued, that is, commenced, on October 7, 2022. The children were present in Ontario on that day.

Position of the parties

[182] Amicus and the Children’s Lawyer submit that the father consented, impliedly consented, or acquiesced to the children residing with the mother in Ontario. They argue the mother had legal permission to leave Kuwait when she did. The father had notice of the proceeding that the mother brought for permission to leave.

[183] I find that the father was given notice that a court case had been started and that he failed to follow up or investigate immediately upon receiving this notice. The father’s failure to follow up immediately upon receiving notice that a proceeding had been started was in the context of him telling the mother on March 4, 2020 that she and the children should leave Kuwait. “…Save what you will have of pride and dignity… Take the children and take care of them…”[^18]

[184] On September 11, 2021, the father wrote to the mother, telling her to register the children in a bilingual Islamic Centre and that he would pay the fees.[^19]

[185] And again, on September 12, 2021, he told the mother she “won.”[^20]

[186] It was not until April 23, 2023 that the father filed an answer challenging the Ontario court’s jurisdiction and seeking the return of the children to Kuwait.

[187] Based on these facts, counsel asks that I infer that the father acquiesced to the “prevailing conditions”.

[188] The father argues that he did not acquiesce. He acted by obtaining court orders in Kuwait, which granted him custody and guardianship of the children. He also argued that the children were wrongfully removed by the mother because the court in Kuwait only granted her temporary travel permission and not permission to relocate to Canada.

Discussion

[189] The mother did not abduct or wrongfully remove the children when she left Kuwait in July 2021. At that time, she had a number of court orders in her favour. She had a custody order. She had three guardianship orders including over the children’s documents, education, and health. She had permission from the Ministry of Education to change the children’s school to a school outside of Kuwait. She also had the permission of the court to travel outside of Kuwait.

[190] When she and the children left Kuwait, she understood her ability to remain in that country was no longer valid. This was a reasonable position for her to take, as her residency in Kuwait depended upon her being married to the father. Their divorce had been finalized. She was afraid to go to her father’s funeral in Jordan for fear she would not be allowed to return to Kuwait. The husband had tried to remove her from Kuwait, but she hid the travel documents so that she and the children could not be forced to leave. As well, the mother was being contacted by a Kuwaiti government authority regarding her residency status. She understood that she had to leave unless she could get her residency permit transferred.

[191] What the mother did not take into account was the father’s entitlement or right to access under the then existing court order.

[192] Those were the circumstances when the mother left Kuwait.

[193] However, s. 22(1)(a) requires the court to consider the habitual residence of the children in Ontario at the commencement of her application.

[194] By the time the mother started her case for a parenting order in Ontario, on October 7, 2022, the father had obtained orders for custody and guardianship of the children in Kuwait. The mother was aware of the cases that resulted in these orders. She filed a successful appeal from the custody order; however, this was subsequently overturned by a higher court, on June 28, 2022.

[195] The steps taken by the father in Kuwait after the mother left with the children demonstrate that he did not consent, impliedly consent, or acquiesce in the children remaining outside of Kuwait.

[196] Based on the wording of the Act, I am not able to find that on October 7, 2022, the children were living with the mother in Ontario with the consent, implied consent, or acquiescence of the father.

Zafar v. Azeem, 2024 ONCA 15

[197] In Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 SCR 398, the Supreme Court articulated the test for determining habitual residence under the Hague Convention. It directed that a court must take a hybrid approach and consider all the circumstances of the children and the intention of the parents.

[198] In Zafar, the Ontario Court of Appeal held that the analysis of habitual residence found in Balev with respect to Hague Convention cases is “equally applicable in the non-Convention context”: para. 74.

[199] Zafar was released after amicus and the Children’s Lawyer filed their written submissions and very briefly before the parties were scheduled to make oral submissions.

[200] During the trial of this case, the parties had not specifically addressed the applicability of Balev to this case.

[201] In supplementary submissions, amicus argued that the intentions of the parties are captured in s. 22(2), ¶ 2, where “… consent, implied consent or acquiescence …” may be considered. I find this to be a persuasive submission. To the extent that Balev considerations are required to be taken into account in non-Convention cases when determining habitual residence, the concept of parental intention appears to be taken into account when an analysis under s. 22(2) ¶ 2 is undertaken. What this section does not address is the circumstances of the children.

[202] In his supplementary submissions, counsel for the children argued that, as a result of the court being required to consider Balev in non-Convention cases, a consideration of s. 22(2) is not the only consideration. The court should consider a child’s “relevant links and circumstances”. Balev, at para. 43, states that the aim of the hybrid approach is to determine the “the focal point of the child’s life — “the family and social environment in which its life has developed” — immediately prior to the removal or retention…” The judge is to consider all relevant links and circumstances in this case in Kuwait, the circumstances of the children’s move to Canada, and the children’s link to, and circumstances in, Canada. At para. 46 in Balev, it states that “[i]t follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child.”

[203] Counsel for the children addressed the children’s circumstances having regard to Balev in his supplementary submissions. The evidence of the children was given through the clinician who assisted counsel for the children.

[204] B. and L. were of an age, when they left Kuwait, to have a view and understanding of their circumstances. B., in particular, had a negative view of his relationship with his father. He and L. saw the mother as protective and their caregiver. Both children were involved with their schooling and some extracurricular activities. They had a sometimes positive and sometimes negative relationship with the father’s extended family members. M. was a toddler when she left Kuwait. Her young life has revolved around the mother as her primary caregiver. She would go on access visits with the father regularly and without difficulty.

[205] The circumstances of the children’s move to Canada, from the perspective of B. and L., was to leave a negative and abusive environment. With the possibility of the mother being forced to leave Kuwait, both children were fearful of being separated from her. They viewed the move as a means of finding safety and security.

[206] According to the clinician, the children have shown signs of integrating well into life in Canada. L. is involved in extracurricular activities, and she and B. are doing well academically. They feel safe and express a desire to stay in their mother’s care.

[207] When considering all of these factors as well as the unambiguous words of the statute[^21], I am not able to find that the children could be said to have been habitually resident in Ontario when the mother started this case, nor when the father obtained a custody order in Kuwait.

Issue no. 2—Does section 22(1)(b) provide the court with jurisdiction to make a parenting order?

[208] I found that the children were not habitually resident in Ontario at the commencement of the application brought by the mother.

[209] Therefore, I must determine if the court has jurisdiction to make a parenting order under s. 22(1)(b).

[210] Section 22(1)(b) provides as follows:

22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,

(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,

(ii) substantial evidence concerning the best interests of the child is available in Ontario,

(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,

(v) the child has a real and substantial connection with Ontario, and

(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[211] This section allows the court to exercise its jurisdiction to make a parenting order if the children are physically present in Ontario and the other requirements are met.

[212] All the criteria must be met before the court may exercise its jurisdiction: Murray v. Ceruti, 2014 ONCA 679, 325 OAC 300, at para. 24, and Turner v. Viau, 2002 CanLII 41671 (ON CA), 26 R.F.L. (5th) 440 (Ont. C.A.), para. 9.

[213] Therefore, I propose to consider each factor:

i. the child is physically present in Ontario at the commencement of the application for the order

[214] All three children were physically present in Ontario when the mother started her application.

ii. substantial evidence concerning the best interests of the child is available in Ontario

[215] The children have lived in Ontario since July 2021, a period of almost two and a half years. They have been involved with many services and their community since that time.

[216] Evidence regarding their best interests is available from their schools and doctors. They had involvement with the Children’s Aid Society when the mother sought out help in ensuring the children’s safety. The children have been involved with a clinician from the Children’s Lawyer, as well as with family counselling.

[217] The children have been involved in their religious and cultural community and have participated in extracurricular activities.

[218] The children are ensconced in Ontario, where now there is substantial evidence concerning their best interests.

iii. no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident

[219] By the time the mother started her application on October 7, 2022, the father had a custody order, dated June 28, 2022,[^22] and guardianship orders for education and documents, July 19, 2022, and for health, September 6, 2022.

[220] Accordingly, when the mother commenced her application in Ontario, there were no pending—that is, outstanding—applications for parenting orders in Kuwait. The father had already secured custody and guardianship.

[221] The father submitted that there were court proceedings pending in Kuwait. In submissions, counsel suggested that the father’s parenting time remained outstanding, however, when asked, did not direct the court to any evidence to support this assertion.

[222] I find that this factor has been met by the mother.

iv. no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario

[223] There are no extra-provincial orders respecting parenting that have been recognized by a court in Ontario.

v. the child has a real and substantial connection with Ontario

[224] As stated above, all three children have lived in Ontario with their mother since July 2021.

[225] M. has lived almost half of her young life in Ontario. When B. arrived in Canada, he was 11 years old and is now 13. L. arrived when she was 9 years old and is now 11.

[226] Both B. and L. were born in Ontario and have Canadian citizenship.

[227] That the children have a real and substantial connection with Ontario is evidenced by their involvement in school, their Mosque and community. They also have friends. The same considerations that were taken into account in (ii) above are relevant to the determination of this factor. The children have involvement with services, institutions, and community, all of which contribute to their integration and routine in Ontario.

vi. on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario

[228] I find that on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

[229] In a trial conducted in Ontario, remote attendance by witnesses is possible. The father and his witnesses will be able to attend remotely. The court heard evidence in this case that virtual hearings are not available or held in Kuwait. Because of this, the mother was not able to participate in person in Kuwaiti cases after she left Canada.

[230] All of the witnesses with information about the current circumstances of the children—except the father—are now in Ontario.

[231] The evidence discloses that the mother’s ability to return and remain in Kuwait is tenuous. She has no immediate right to reside in that country. She is no longer eligible to have residency as the spouse of the father. She does not have any employment in Kuwait such that her employer could sponsor her residency. As a permanent resident of Canada, she is able to remain in Ontario.

[232] In Krisko v. Krisko, 2000 CarswellOnt. 3774 (Ont. C.A.), the Court heard an appeal from an application by a father for a declaration that Ontario lacked jurisdiction to deal with parenting proceedings. The judge at first instance in that case applied s. 22(1)(b) and found that all the criteria had been met. In considering the balance of convenience factor, the judge expressed concern that Dubai was not a signatory to the Hague Convention, and that the mother may experience sponsorship problems in that country. The Court of Appeal held that these findings were supported on the evidence. It appears therefore that these findings are relevant to the determination of the balance of convenience factor. This is similar to the situation in the case at hand. Kuwait is not a signatory to the Hague Convention, and it is clear that the mother will experience sponsorship and residency problems in Kuwait.

Conclusion

[233] Having regard to s. 19—the purposes under Part III—I am satisfied that these factors provide good reason for the court in Ontario to assert jurisdiction to determine parenting issues.

[234] For all these reasons, I find that this court should exercise its jurisdiction to make a parenting order with respect to the children under s. 22(1)(b) of the Act.

[235] This means that the trial of the parenting issues may be undertaken in Ontario. The father will have the opportunity to contest the application brought by the mother and put forward his position as to the best interests of the children.

Issue no. 3—Risk of serious harm

[236] If I am wrong that s. 22(1)(b) of the Act gives the court the jurisdiction to deal with a parenting order, I am satisfied that the children would, on the balance of probabilities, suffer serious harm if they were returned to the father in Kuwait or removed from Ontario.

Legal considerations

[237] Section 23 allows the court to exercise its jurisdiction to make a parenting order where the child is physically present in the province and, on the balance of probabilities, the court is convinced the child will suffer “serious harm if removed from Ontario”: F. v. N., 2022 SCC 51, paras. 3, 56 and 66.

[238] Section 23 provides as follows:

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,

(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or

(iii) the child is removed from Ontario.

[239] In F. v. N., the Supreme Court of Canada addressed the interpretation and scope of s. 23 as a means of determining which jurisdiction should determine parenting issues.

[240] When interpreting and applying s. 23, the court must bear in mind the objectives of the Act under Part III. In summary, the objectives are to discourage child abduction, ensure parenting orders are made based on the child’s best interests, and that jurisdiction to make parenting orders take place where the child has the closest connection, barring exceptional circumstances: paras. 8 and 49.

[241] However, “the presumption in favour of the jurisdiction of habitual residence must give way to the imperative of protecting a child when serious harm is made out”: para. 66. This requires the court to “conduct an individualized assessment of the risk of serious harm”: para. 67.

[242] When conducting an individualized serious harm analysis, some of the best interests factors enumerated under s. 24(3) may also inform this enquiry: para. 68.

[243] The assessment of requests to return children to non-Hague Convention jurisdictions requires the court to consider “the tenor of foreign law generally through expert evidence adduced by the parties”: para. 53.

[244] The onus of proving serious harm rests with the mother in this case. The burden is demanding. The court must be satisfied, on the balance of probabilities, that the harm itself would be serious in nature. It is not sufficient to conclude that the return would have a negative impact. Rather, the serious harm enquiry is child-centered and highly individualized: paras. 69, 70, 72 and 80.

[245] Serious harm may arise from a single consideration or from a combination of factors. The assessment of risk under s. 23 requires the court to consider the likelihood and severity of the anticipated harm: para. 71.

[246] Risk of serious harm may arise on proof of physical or psychological harm; the views of the children; a parent not willing to return even if the children are required to; and the rules applicable to deciding custody in the foreign jurisdiction: para. 74.

Application of legal considerations

[247] The following considerations were relied upon in asking the court to make a finding of serious harm:

a) The psychological harm if the children are separated from the mother;

b) The physical risk of harm to the children;

c) The application of Kuwaiti and Jordanian law;

d) The views of the children;

e) The adequacy of the father’s proposed protective measures if the children are returned to Kuwait; and,

f) The father’s ability to influence Kuwaiti officials.

A) Psychological harm

[248] If returned to Kuwait, the children would be separated from the mother.

[249] The mother has been the children’s primary caregiver their entire lives. She remained at home with the children while the father worked outside of the home. When the parties separated, the children remained in the mother’s care.

[250] The reason the children would be separated from the mother if returned to Kuwait is the mother’s precarious residency status there. She does not have the status to return to Kuwait. The evidence was that her status in that county, and her ability to reside there, was as the spouse of the father. She could have obtained status had she had the sponsorship of an employer or approval from the ministry.

[251] The expert witness called by the father was qualified to give opinion evidence on family law in Kuwait. She was not qualified to give opinion evidence on Kuwaiti immigration law. However, as I understood her evidence, she testified that the mother would need to apply to the Ministry of the Interior Residency Section to stay in Kuwait. This witness provided no credible evidence on the likelihood that this would be granted.

[252] At present, the mother has no employment in Kuwait. There is no evidence of her being able to secure employment in that country now or in the near future. There was no evidence of how she would be able to financially support herself and the children in Kuwait.

[253] In her evidence, the mother stated she would not return to Kuwait. Returning to Kuwait, she stated, would be a danger for her.

[254] This is not a case where the mother has engineered her inability to reside in Kuwait.

[255] In assessing risk of serious harm in connection with the mother not having care of the children in Kuwait, caselaw recognizes the importance of a child’s connection to their primary parent. In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 121, the court recognized that this relationship “may well be the most determinative factor in the child’s long-term welfare.”

[256] In this case, evidence of the children’s views and preferences was provided by Lisa Heslop, the clinician who assisted the children’s counsel. Her role was to provide evidence of the children’s views and preferences. In doing so, she was allowed to advise the court what the children said and of her direct observations of the children. Ms. Heslop did not conduct an assessment. She was not qualified as an expert to give opinions.

[257] The father did not object to the methodology employed by the clinician, the accuracy or the admissibility of the children’s statements, or her observations of them. He did submit that the evidence was dated, as the clinician last saw the children on July 13, 2023. I do not accept this submission as necessarily diminishing the weight to be accorded the evidence of Ms. Heslop. There is no evidence that the children’s views and preferences have changed since that time, and in particular that there has been an improvement in the father’s relationship with the children.

[258] B. presented to Ms. Heslop as a mature, smart and personable boy. He spoke English fluently. He described his mother as protective, loving and dedicated to his, and his sisters’, care. B. described the father as angry and abusive. For example, B. told Ms. Heslop that the father would take the children somewhere fun, take pictures, and then yell and hit them. Later he would show the pictures of their happy family.

[259] L. presented as a soft-spoken, mature and bright girl. She too speaks fluent English. She described the mother as “kind, caring, loves me, loving, helpful, and great” and important to her. L. described the father as “the opposite of kind, angers quickly and not caring.” Sometimes the father could be nice but it never lasted.

[260] L. now wears a veil when speaking to the father. When asked by Ms. Heslop why, she began to cry. Her response was,

“I did not wear it in Kuwait. I started in Canada. Technically, when he kicked us out of the home, he did not mind that I am his daughter. He did not care I was his daughter.”

[261] Quietly she continued, “why would I recognize him as my father and remove my veil?”

[262] M. was four and a half when interviewed. She identified her family members as the mother, B. and L. She did not include her father, saying “he is a bad father” because he pushed B. and L. She also told Ms. Heslop that the father only loves her. He doesn’t love L. or B., only her.

[263] It is evident that all three children are closely bonded with the mother. She is their primary caregiver.

[264] Expert evidence is not needed to infer that the children would be harmed if removed from the mother’s care, each in their own way. All would suffer the loss of their mother. B. and L. would be placed in the care of their father, someone about whom they have unequivocally expressed negative feelings and with whom they expressed feelings of being unsafe. Their respective views are clear and unambiguous.

[265] I infer that the father recognizes risk of serious harm should the children be placed in his care, as one of his protective measures for the children, should they return, would be to retain the services of a family counselling professional to deal with “any concerns, fears or anxiety…” seeing their father.

[266] If the children return to Kuwait without the mother, they will live with the father, as he has Kuwaiti custody and guardianship orders. The father has remarried. He and his new wife have a child together. There is no evidence that the children have a relationship with or even know the father’s wife. I infer that moving into this situation, where the children would be cared for by a person unknown to them, would require significant adjustment on their part.

[267] The father argues that the children, B. and L., have been negatively influenced by the mother. This was not apparent to the clinician. They told the clinician of events that took place in Kuwait which they observed, and which reasonably gave rise to their views and preferences.[^23]

B) Risk of physical harm

[268] B. described to Ms. Heslop that L. and he were subject to physical discipline by the father. He would hit them. L. described the father as quick to anger.

[269] The three children were exposed to family violence between the mother and the father. For the reasons set out above, I accept the mother’s evidence that she was the victim of family violence from the father, as described in her evidence.

[270] L. described to Ms. Heslop an incident where the mother tried to return to the family apartment but the father did not want her to enter. During this incident, L.’s leg was caught in the door when she opened it for the mother and the father intervened to prevent the mother from coming inside. As well, there were some audio and video recordings admitted in evidence. They purported to show the children being upset while in the care of their father because of his behaviour towards them. The weight given to these exhibits is slight, as context was not clear.

[271] I find that the potential serious risk to the children is the father’s propensity to anger, and B. and L.’s resistance to him.

C) The application of foreign law

[272] A considerable amount of trial time was consumed with evidence regarding Kuwaiti and Jordanian law. As both parties are Jordanian citizens, Jordanian law could be applied to them by the courts in Kuwait.

[273] Three experts testified and were extensively cross-examined. Before giving expert evidence, all three were the subject of a voir dire and were determined to be qualified to do so. The experts relied upon by the Children’s Lawyer and father were qualified as litigation experts. The expert called by the mother was found to be a participant expert as she had acted for the mother in family matters prior to her leaving Kuwait. I left open the possibility of giving further reasons regarding the qualifications of the experts. I find that further explanation of the basis for the experts being qualified is not now needed.

[274] Family law in Kuwait and Jordan is the codification of Sharia law with some variations. The mother wanted me to determine issues of religious dogma as it pertains to these laws. This is not within the court’s jurisdiction. She took great offence to the participants in this case, including the experts, disparaging in any way what the tenents of her deeply held faith require, including with respect to parenting. She insisted that there would be no harm to the children as a result of the application of these laws.

[275] In F. v. N., the court recognized that a foreign jurisdiction may not share Ontario’s understanding of the law related to parenting orders (para. 85). In considering the tenor of foreign law, the court is not to see if the principles are to be applied exactly as they are in Ontario. As long as the ultimate question of parenting is determined on the basis of best interests, the Act does not prevent the children from being returned (para. 87). The proper approach recognizes that inconsistencies between local and foreign regimes will usually not amount to serious harm if the best interests of the child principle remain the paramount consideration in all decisions concerning children (para. 88).

[276] Under Kuwaiti and Jordanian law, gender and age presumptively determine physical custody (primary residence) and decision-making. This is contrary to best interests considerations in Ontario. However, as was the case between the parties, the mother was able to obtain guardianship orders and the father was able to obtain a custody order, from the courts in Kuwait. It appears therefore that gender-based and age presumptions can be overcome.

[277] The evidence also discloses that Kuwait has ratified the United Nations Convention on the Rights of the Child, which includes prioritizing the child’s protection and best interests in all decisions. I accept the expert who testified on behalf of the father, Ms. Bebehani’s, evidence in this regard. However, Kuwait signed a reservation to the convention exempting the application of Sharia law in that country.

[278] The expert called by the Children’s Lawyer identified a number of differences between Ontario and Kuwaiti law. Some of these differences are gender based but not relevant to the determination of best interests of the children as between the parties in the context of this case. This case does not have to do with the mother remarrying and therefore losing custody or the father insisting that his daughter marry.

[279] At para. 86 of F. v. N., the court quoted Lady Hale, who wrote in In re J. (A Child) (Custody Rights: Jurisdiction), [2005] UKHL 40, a case which involved a request that a child be returned to Saudi Arabia that “… we do not have a fixed concept of what will be in the best interests of the individual child… Nowadays we know that there are many routes to a healthy and well adjusted adulthood. We are not so arrogant as to think that we know best…”

[280] All the experts agreed that interests of the children is a priority consideration in parenting issues, however they may be interpreted under Kuwait and Jordan law.

[281] I cannot conclude that, in the circumstances of this case, the children would suffer serious harm on the basis of foreign law if returned to Kuwait.[^24]

D) Views of the children

[282] B. is a teenager. L. will be one soon.

[283] Based on their respective presentations to Ms. Heslop, their views and preferences are deserving of considerable weight. In these reasons, their views and preferences have been described along with the reasons why these views and preferences are deserving of considerable weight.

[284] Neither child wants to return to Kuwait. B. tearfully told Ms. Heslop, “it is the worst thing I could think of… Words could not describe how bad.” His first and most distressing fear is being separated from his mother. He also fears how he will be treated on his return. L. expressed similar fears.

[285] There is no evidence of M.’s views and preferences, which is understandable given her age.

[286] Under Kuwaiti and Jordanian law, the evidence before the court is that the children’s views and preferences would not be considered until they attained the age of 15 years. It is then that a child may choose. In Ontario the views are to be considered.

[287] I find that the children, B. and L., want to remain in Ontario. After two and a half years, they are acclimated to life in Ontario. They are engaged in services, school, have friends and participate in extracurricular activities.

[288] As M.’s views and preferences are not clear and are not entitled to be given much, if any, weight, another consideration must be taken into account: these three children should not be separated from one another based on the expressed wishes of the two older children and no reliable wishes expressed by M.

E) The father’s protective plan

[289] The father’s protective plan as set out in his requested order, should the mother and children return to Kuwait, includes applying for a visa for the mother. The likelihood of the visa being granted and its terms were not detailed in the evidence.

[290] The father also states that he will secure a furnished apartment and pay three months’ rent. The father did not know how much it would cost for one month’s rent. What he did state was that it would depend on the size of the place, the furnishings and location. After three months, he expected the parties would be able to sort things between them.

[291] The father’s protective measures do not adequately alleviate the precariousness of the mother’s residency status, nor facilitate a safe and stable residence for the children and her.

[292] As well, it is not clear on the evidence whether the mother could enforce these terms in Kuwait.

[293] On her return to Kuwait, the mother would be faced with existing orders that grant the father custody and guardianship of the children. There is no enforceable protective measure suggested that the children could remain in her care absent further court order.

F) The father’s ability to influence Kuwaiti officials

[294] This proposition is advanced by the mother. It is based on her belief and experiences with the father and Kuwaiti authorities. I find that there is insufficient evidence that supports this court finding this to be the case. I do not consider it as a factor that gives rise to risk of serious harm to the children if they are returned to Kuwait.

Conclusion

[295] Individually, these factors may not give rise to a finding of serious harm. However, I find that on the balance of probabilities, the cumulative effect of these factors does give rise to risk of serious harm. Psychological harm if separated from the mother and each other; risk of physical harm; views of the children; and the inadequacy of the father’s protective measures, collectively, ground a finding that, on the balance of probabilities, the children would suffer serious harm if returned to the care of the father in Kuwait, or if removed from Ontario.

[296] The serious harm these children would suffer is because of their individual circumstances including their ages, relationship with their parents, the mother’s role as the children’s primary caregiver, B. and L.’s firmly held views, the amount of time they have been in Ontario, and the father’s inadequate plan for the return of the children.

[297] This is one of those cases where the concern about wrongful retention must give way to the paramount objective of preventing serious harm to these children. (See F. v. N., para. 195.)

Issue no.4—Parens patriae jurisdiction

[298] The parens patriae jurisdiction is generally reserved for cases where there is a legislative gap. It is not generally used to modify an existing statutory scheme: see Johnson v. Athimootil, 2007 Carswell Ont. 6277, para. 29. However, the court may use its parens patriae jurisdiction to deal with “uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit”: Johnson, para. 29, referring to Eve Re, 1986 CanLII 36 (SCC), 13 CPC (2d) 6, at para. 411.

[299] In Johnson, the court relied upon its parens patriae jurisdiction in a situation where there was no evidence another court would, or could, assume jurisdiction over the children. That is not the case here. In this case, there is no legislative gap and the court in Kuwait assumed jurisdiction. In this way, Johnson is distinguishable from the case now before the court.

[300] I find that this is not a case where there is a legislative gap that would support this court assuming parens patriae jurisdiction to determine a parenting order with respect to these children.

Balance of issues: recognition and enforcement of Kuwaiti orders

[301] In these reasons, I found that this court may exercise its jurisdiction to make a parenting order with respect to these children under s. 22(1)(b) or s. 23.

[302] For these same reasons, I am of the opinion that it is not “more appropriate for jurisdiction to be exercised outside of Ontario”, that is, in Kuwait: ss. 25 and 42(2).

[303] Accordingly, I decline to recognize and enforce, as requested by the father, the November 2, 2021 order of the Family Court of Hawalli, Kuwait (1528/2021) and the June 28, 2022 order of the Appeal Family Court of Hawalli, Kuwait (3024/2022).

Order

[304] For these reasons, the following order shall issue:

On a final basis:

1. This court has and will exercise the jurisdiction to make a parenting order with respect to the children, B., born […], 2010, L., born […], 2012, and M., born […], 2018;

2. The Respondent’s request pursuant to s. 41 of the Children's Law Reform Act to recognize and enforce the November 2, 2021 order of the Family Court of Hawalli, Kuwait no. 1528/2021 and the June 28, 2022 order of the Appeal Family Court of Hawalli, Kuwait no. 3044/2022 is dismissed.[^25]

On a temporary basis:

3. The Respondent shall have 30 days from the date of the service of this order upon him to file his Answer in this proceeding.

4. Pending further order of the court, and on a without prejudice basis, the Applicant shall have interim decision-making responsibility for the children, and they shall reside primarily in her care.

5. Pending further order of the court, the Respondent shall have reasonable electronic parenting time with the children.

6. Pending further order of the court, the Applicant shall not remove the children from the Province of Ontario.

7. Pending further order of the court, the children shall reside with the Applicant within the County of Middlesex.

8. This case is adjourned to March 19, 2024 at 9:30 a.m., virtually (Rule 39 Court), to schedule the next step and date dependent upon the Respondent filing an Answer.

Costs

9. If the Applicant and Respondent are not able to resolve the issue of costs, the Applicant may make written submissions within 10 days of the release of these reasons. The Respondent shall have 10 days after the receipt of the Applicant’s submissions to respond. The submissions shall be no more than five pages, double-spaced, and a minimum of 12-point font together with any offers to settle and a bill of costs.

10. The party opposing a claim for costs shall include in their submissions documentation showing their own fees and expenses: see Family Law Rules, r. 24(12.2).

11. The parties have the option of filing their costs submissions through the JSO portal or to London.courthouse@ontario.ca

[305] Finally, I wish to commend counsel for the professional and respectful manner in which this case was presented.

“Justice B. Tobin”

Released: February 16, 2024

[^1]: The expert retained by the father, Jumana A. Bebehani, referred to it as “… a form of cheating…” by the mother. [^2]: This court order notes that the mother did have counsel present. However, the mother’s evidence is that counsel who appeared on her behalf had not been instructed by her. [^3]: Exhibit 32 – page F-93. [^4]: Exhibit 1 – affidavit of the Applicant dated July 17, 2023, para. 50 H21. [^5]: Exhibit 14 – pages A-478 and A-480 and A-482. [^6]: Exhibit 20 – page A-1172. [^7]: Exhibit 5 – page A-80. [^8]: Exhibit 14 – page A-476. [^9]: Exhibit 6 – page A-123. [^10]: Exhibit 9 – page A-259. [^11]: Exhibit 23 – page A-1539. [^12]: Exhibit 78 – page B-645 and B-646 [^13]: The evidence did not disclose what charge was laid against the mother that day. However, whatever charge was made that day was dismissed, with the mother being found not guilty on November 23, 2022. This decision was affirmed on appeal, decided January 15, 2023. [^14]: Exhibit 23 – pages A-1526 – A-1527. [^15]: Exhibit 85 A-3443 and A-3447. [^16]: Exhibit 23 – page A-1539. [^17]: Exhibit 23 – page A-1539 and A-1540. [^18]: Exhibit 91 – A-3111. [^19]: Exhibit 81 – H-2239. [^20]: Exhibit 29 – F-74. [^21]: See Dovigi v. Razi, 2012 ONCA 361, at para. 14, where the court held that “a statutory definition must be applied when interpreting the very term defined.” [^22]: Exhibit 66 [^23]: See also Exhibit 9 – page H-305 where reference is made to a court having “found from the report of the community police that the two children ([B.] and [L.]) suffer from sadness, fear and anxiety due to family problems and domestic violence, and they mentioned the violence of the father towards their mother, which affected their psyche.” [^24]: See also Al-B v. El-H, 2020 ONSC 1109, at paras. 73 – 78. In Al-B v. El-H, the same expert relied upon by the Children’s Lawyer in this case testified. In that case, the court found that the mother did not establish that the children would suffer serious harm if returned to Kuwait based on the application of Kuwaiti law. [^25]: This is the requested order sought by the father.