Court File and Parties

COURT FILE NO.: FC-24-1740 DATE: 2024/12/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Omar Ribhi Jarrar Applicant – and – Dialah Al-Khalili Respondent

Counsel: Salma Dar, Counsel for the Applicant Ron Shulman/Caitlin O’Garr, Counsel for the Respondent

HEARD: November 25, 2024 (Ottawa)

Reasons for Decision

AUDET J.

[1] The sole issue to be decided in this motion is whether Ontario has jurisdiction to make a parenting order in relation to the parties’ child. In other words, the Court is asked to determine whether the child’s habitual residence is Ontario or Jordan, pursuant to s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).

[2] For the reasons set out below, I find that the child’s habitual residence is Ontario, which grants this Court jurisdiction to make a parenting order in relation to him. Further, I find that the Court has the power to make an order under the CLRA requiring that the child be immediately returned to Ontario (a “chasing order”), and I make this order today.

Background

[3] The Applicant father was born in Jordan but immigrated to Canada in July 2008 with his parents and siblings. He has dual citizenship in Jordan and Canada. The Respondent mother was born in Jordan but immigrated to Canada under a spousal sponsorship on August 24, 2021. She is a citizen of Jordan and a permanent resident of Canada.

[4] The parties were introduced through their family members. At that time, the father resided in Canada and the mother resided in Jordan. Both parties were seeking a spouse who was an observant Muslim and accustomed to traditional Arab culture. In accordance with their cultural traditions, the parties signed an Islamic marriage contract on or about October 13, 2020, in Amman, Jordan. Thereafter, the father sponsored the mother to immigrate in Canada, and the application was approved on July 18, 2021. In early August 2021, the father flew to Jordan for the wedding reception and the mother returned with him to Windsor, Ontario, on or about August 24, 2021.

[5] The parties began to cohabit as a married couple on August 25, 2021, in Windsor. The parties’ child, A.O.R.J., was born on May 30, 2022, in Windsor (hereinafter referred to as “A.J.” or “the child”). The parties resided in Windsor until March 2023, when they moved to Ottawa to be closer to the father’s extended family.

[6] While he was born in Canada, the child is now also a citizen of Jordan. The father alleges that the mother obtained a birth certificate and a passport for him in Jordan in the summer of 2023 without his explicit written consent, and through fraudulent actions, which the mother denies. She states that the father was fully aware of the steps taken by her to obtain these Jordanian documents for their child. A.J.’s Jordanian birth certificate, passport, and citizenship were obtained on September 13, 2023. For the purpose of the decision I am required to make today, nothing turns on whether these were obtained by the mother with or without the father’s knowledge and consent. The fact is that since September 2023, A. J. is a citizen of Jordan and of Canada.

[7] Prior to coming to Canada and until on or about October 2021, the mother was employed by PricewaterhouseCoopers (“PwC”) Middle East, working remotely from Ontario for a few months after she relocated here in 2021. After she became pregnant, the mother ended her employment with PwC Middle East and started a job with PwC Canada, earning in the range of $74,000 per annum. The father is employed as a Systems Engineer, but I am not aware of where he is employed or what his income is.

[8] Since the child was born, he and his mother have travelled annually to Jordan to visit with the mother’s extended family. Their travel to Jordan usually took place in the summer or early fall and lasted between a few weeks to a little less than two months. The father travelled with them sometimes, but not always.

[9] In the summer of 2024, the mother once again travelled with the child to Jordan to visit with her family, with the consent of the father. The return flight tickets purchased by the parties confirmed that mother and child were set to depart to Jordan on August 12, and to return to Ontario on September 13. However, while the mother was in Jordan, conflict between the parties escalated and divorce threats loomed in their written communications. The mother alleges that during a heated exchange on September 1, the father “ordered her” to stay in Jordan. Ongoing exchanges between the parties reveal that their relationship was in limbo, and they were discussing whether to reunite or separate. After cancelling and reinstating her return to Ottawa at least twice, the mother eventually confirmed her return date with the child on September 16. However, ultimately, she did not take that flight.

[10] Instead, on September 8, 2024, the mother filed four legal proceedings before the Jordan’s Sharia Court claiming alimony (spousal support), minor support (child support), dissolution of marriage (divorce) and no objection to custody of a minor (custody of the child). On October 6, at the request of the mother, the Jordanian Sharia Court assumed jurisdiction over the child and issued a travel ban preventing him from being removed from Jordan. The father was represented by counsel at the time but only for the purpose of making representations on the issue of support.

[11] On October 2, the father filed his Application before this Court seeking the immediate return of the child to Ontario, as well as a parenting order. On October 25, the mother filed an Answer in the Ontario proceedings seeking the dismissal of the father’s application based on lack of jurisdiction or, alternatively, asking the Court to decline jurisdiction.

[12] It is not disputed that, at the time the mother travelled to Jordan with the child in August 2024, the child’s habitual residence was Ontario. It is also not disputed that when the mother travelled with the child to Jordan in August 2024, she was expected to return with him to Ontario on September 13, 2024.

[13] The mother’s position is that, following the parties’ argument on September 1, she was ordered by the father not to return to Canada. Further, she found out that the father, as some point in late September, had unilaterally relinquished the lease of the parties’ family residence in Ottawa. According to the mother, the father’s instruction to her not to return to Canada, coupled with his relinquishing the lease of the family home, resulted in her having nowhere for her and the child to return to in Ottawa. As a result, she takes the position that the child’s “habitual residence in Jordan was unilaterally imposed by the father on or around September 1, 2024, when he initiated the parties' separation and not only consented or acquiesced to the mother and the child remaining in Jordan but ordered it.”

[14] Alternatively, if the Court finds that Ontario remains the child’s habitual residence at this time, the mother argues that the Ontario court should decline to exercise its jurisdiction under s. 25 of the CLRA because it is more convenient for Jordan to assume jurisdiction, and to avoid duplicity of legal proceedings.

[15] In the further alternative, the mother argues that it is in the best interest of the child to remain in Jordan with her. She alleges that she was subjected to various forms of abuse at the hands of the father during the parties’ marriage, including controlling behaviors which resulted in her being very isolated in Ottawa. She states that forcing her to return to Ontario with the child would expose her to significant risk of harm as well as retaliation from the father and his extended family.

[16] The issue of the Court’s jurisdiction to entertain the father’s application for a parenting order being a threshold issue, the parties were directed to schedule this preliminary hearing, based on written affidavit evidence with each party having the right to cross-examine witnesses, viva voce, during the motion hearing.

Legal Framework

Statutory Framework

[17] Jordan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35. The father’s Application for a parenting order and the return of the child to Ontario, therefore, is brought under the CLRA.

[18] Pursuant to s. 22(1)(a) of the CLRA, a court shall only exercise its jurisdiction to make a parenting order with respect to a child if the child is habitually resident in Ontario at the start of the application for the order. I note that ss. 22(1)(b) and 23 of the CLRA do not apply here because the child has not been physically present in Ontario since August 12, 2024.

[19] According to s. 22(2), a child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.
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.
3. With a person other than a parent on a permanent basis for a significant period of time.

[20] Section 22(3) makes it clear that the removal of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter this unless there has been acquiescence or undue delay in the left-behind parent commencing a court application.

[21] Even if the Court finds that it has jurisdiction to make a parenting order with respect to a child, the court can decline to exercise its jurisdiction pursuant to s. 25 if it believes that it would be more appropriate for jurisdiction to be exercised outside Ontario.

Applicable legal principles

[22] In Zafar v. Azeem, 2024 ONCA 15, 97 R.F.L. (8th) 3, the Court of Appeal of Ontario held that the concept of “habitual residence” as defined in s. 22(2) of the CLRA had to be considered in light of the new “habitual residence” considerations set out by the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398.

[23] In F. v. N., 2022 SCC 51, the Supreme Court of Canada also pointed out that, while the best interests of the children are the paramount consideration for all decisions that concern children, at the preliminary stage of deciding jurisdiction, “it is not the role of the judge to conduct a broad-based best interest inquiry, as they would on the merits of a custody application”: at para. 65.

Chasing Orders under the CLRA

[24] With the greatest of respect to those who hold a different view, I am of the view that once the Ontario court finds that it has jurisdiction to make a parenting order with respect to a child, it has the power to order a party who is wrongfully withholding a child in another jurisdiction (including another country) to return the child to Ontario.

[25] Coming to a different conclusion would be completely contrary to the purposes of the parenting provisions contained in the CLRA, which are set out in s. 19:

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.

[26] In essence, if the Ontario court does not have the jurisdiction to order a parent to return a child to Ontario once it finds that it has jurisdiction over that child, an abducting parent would be free of consequences as soon as they successfully remove the child from Ontario. Rather than discouraging the wrongful removal of children from their habitual residence, this interpretation of our statute would encourage wrongful removals.

[27] Once the Ontario court asserts jurisdiction over a child, all the powers granted to it under the CLRA are available, which include the wide variety of parenting orders set out in s. 28 of the Act:

Custody and Access – Orders

Powers of Court

28 (1) The court to which an application is made under section 21,

(a) may by order grant, (i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[28] The power to make an order requiring the return of a child to Ontario (i.e., a chasing order) is easily found in the provisions highlighted above. Chasing orders are routinely made when a child is wrongfully removed to another Canadian province based on these provisions: see for example Harlow v. Gertel, 2024 ONSC 2310. I see no reason why this should be any different when the child is wrongfully removed to another country, as many judges have done in the past. See for instance Malpani v. Malpani, 2022 ONSC 4123; Ruhil v. Ruhil, 2023 ONSC 7144, at paras. 20-27; Murtaza v. Khan, 2023 ONSC 6598; and Singh v. Wander, 2018 ONSC 1206, to name only a few.

Analysis

[29] There is no dispute on the record before me that A.J. was habitually resident in Ontario —as were both of his parents— when he left Ontario on August 12, 2024, to travel to Jordan with his mother. A.J. resided in Ontario with both of his parents for his entire life. The fact that he travelled with his mother annually to Jordan to visit family does not change his habitual residence — nor does the mother take that position.

[30] I find that the mother’s allegation that the father “ordered her” to remain in Jordan on September 1 is disingenuous. In her affidavit, she states that during the trip, she was subjected to verbal harassment and abuse by the Applicant and that on August 30, 2024, September 1, 2024, and September 2, 2024, the Applicant repeatedly told her not to return to Canada. She adds: “It was made very clear to me that I would not be welcome at his Ottawa or Windsor home, or any other property the Applicant owned or resided in in Canada”. To support her assertions, the mother adduced a text exchange between the parties on September 1 which reads as follows:

Father: Why did you hang up Father: I was talking to yoi [sic] Father: Listen, no one is forcing you to come back Father: If you want to continue with this disrespect Father: Do not come back Mother: If you do not want me to come back then you do the right thing in the right way Father: Don’t come back then Father: That’s it Father: It’s easy Mother: then say you’re divorced

[31] The evidence before me makes it clear that the parties were arguing significantly while the mother was in Jordan with the child, with both threatening the other with divorce. Initially, the mother cancelled her return flight with the child scheduled for September 13. Then, after many exchanges between them, the parties contemplated the possibility of a reconciliation, and the mother reinstated her flight with the child moving her return date to September 16. The above exchange took place in the context of these arguments, and “don’t come back” can as easily mean “this relationship is over” then “don’t come back to Canada”. Even if, in the heat of the moment, the father told the mother not to come back to Canada, given what took place after this statement cannot possibly be deemed consent or acquiescence by the father within the meaning of s. 22(2)2 of the CLRA.

[32] As soon as the father became aware of the mother’s court actions in Jordan, he immediately retained counsel both in Canada and in Jordan, and initiated this legal proceeding within about three weeks of finding out that the mother would not return to Ottawa with the child. He also reported the wrongful removal to the Canadian authorities, who contacted the mother in Jordan. The father clearly did not consent to the mother withholding the child in Jordan, nor did he acquiesce to the mother’s decision to stay in Jordan with him. Indeed, he promptly moved before the Ontario court to have the child returned to Ontario.

[33] I do not accept that the father’s unilateral relinquishing of the lease to the parties’ family residence in Ottawa was a clear message to the mother to remain in Jordan with the child, as she claims. I accept that the father, as the left-behind parent, relinquished his lease once it became clear that the relationship was over and that the mother intended to remain in Jordan with the child, and in contemplation of the litigation he knew was coming (and the costs thereof). Regardless, this would not in any way alter the child’s habitual residence from Ottawa to Jordan. Furthermore, I do not accept that the father’s abandonment of the family home made it impossible for the mother to return to Ottawa with the child.

[34] During the motion, counsel for the mother argued that she would have to find a place to live which would present significant challenges for her. I note that the mother speaks fluent English; she is highly educated; she lived in Ontario continuously for three years and in Ottawa for a full year before leaving for Jordan; she was employed full-time by a large accounting firm and earned an annual income in the range of $70,000 per annum while not being required to contribute to the parties’ housing or day-to-day expenses (she did pay for most of the child’s expenses); she had her own bank account(s) in Ontario; has a valid Ontario driver’s licence (since 2021) and was free to use the parties’ vehicle; she participated in the father’s search for housing in Ottawa and as such, has an understanding of the Ottawa rental market.

[35] In short, the mother is a very capable individual.

[36] I do not accept that the father “ordered the mother to stay in Jordan”, as she claims. I also do not accept that the actions taken by the father while the mother was in Jordan in any way altered the child’s habitual residence from Ontario to Jordan. The father never consented to the child remaining in Jordan permanently, nor did he acquiesce to the mother’s decision to remain in Jordan with the child.

[37] I find that the child’s habitual residence was, and continues to be, Ontario.

Declining jurisdiction under s. 25 of the CLRA

[38] This leaves the question as to whether this court should decline jurisdiction pursuant to s. 25 of the CLRA, on the basis that it would be more appropriate for jurisdiction to be left to Jordan where orders pertaining to the child have already been made.

[39] In Kalra v. Bhatia, 2024 ONSC 1443, at paras. 80-85, Agarwal J. confirmed that motion judges have applied two different tests under s. 25 of the CLRA: the common law doctrine of forums non conveniens (which requires the party relying on s. 25 to establish that “the alternative forum is clearly more appropriate and that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to choose an alternative forum and to deny the plaintiff the benefits of their decision to select a forum”), and the “balance of convenience test” (which requires the court to consider which, between two courts who have jurisdiction, is the one that has a closer connection with the child).

[40] I am of the view that the mother fails under both tests.

[41] While I acknowledge that the mother (and also perhaps the father) has significant connections to Jordan, this is irrelevant here. The fact that the parties were married in Jordan, that they signed an Islamic marriage contract pursuant to Sharia Law, and that they later filed their marriage with the Court in Jordan is equally irrelevant. The question is whether the child has a closer connection to Jordan than to Ontario.

[42] The child was born in Ontario and resided in Ontario for his entire life. His family doctor, health professionals, and health records are here; he went to daycare here; he was registered in extracurricular activities here; he has significant extended family members here, and he was raised in his parents’ Ontario community. There was never an intention on the part of the parents (while they were still together) to move permanently to Jordan with the child. While I acknowledge that the child’s maternal family is in Jordan, and that the child visited them there every year for several weeks at a time, this does not create the kind of close connection necessary to establish jurisdiction. The bulk of the evidence relevant to this child’s best interests is available here in Ontario.

[43] The mother argues that there are concurrent legal proceedings in Jordan, where the Court has already made temporary orders in relation to this child. As such, she urges this court to decline jurisdiction under s. 25 of the CLRA to avoid the concurrent exercise of jurisdiction and the possibility of conflicting orders related to the same child.

[44] A parent cannot wrongfully remove a child from Ontario, settle the child in a new place, and then successfully argue that the new place is the better forum to litigate parenting issues because the child now has a closer connection to the new place: see s. 22(3) of the CLRA, as well as Bakarat v. Andraos, 2023 ONSC 582, 85 R.F.L. (8th) 189, at para. 65. Similarly, a parent cannot be allowed to wrongfully remove a child from Ontario, obtain court orders in another country which assumes jurisdiction based on the existence of very limited connections (such as citizenship or faith), and then successfully argue that Ontario should decline jurisdiction to avoid duplicity of proceedings. As stated by Agarwal J. in Bhatia, such a ruling would clearly undermine the jurisdiction analysis and encourage parents to wrongfully remove children from their habitual residence: para. 88. In this case, it would be to condone the mother’s wrongful retention of this child in Jordan.

[45] Based on the above, there is no reason for this Court to decline jurisdiction under s. 25 of the CLRA.

Family violence

[46] Given my conclusion that Ontario has jurisdiction over this child, I do not need to come to any conclusion with respect to the existence of family violence in this family, and the impact, if any, this has on the decision I make above. This is not a case where the court must assess whether there is a risk of harm to the child if he was returned to another jurisdiction, pursuant to s. 23 of the CLRA. That provision does not apply in this case because the child is not physically present in Ontario; he is ordered back to Ontario where the Court will be asked to determine what parenting arrangements are in his best interests. The existence of family violence will be an important consideration relevant to the parenting order that the court will be called upon to make in due time, but it is not relevant to my decision on whether Ontario has jurisdiction to hear the matter.

[47] In F. v. N., above, the Supreme Court of Canada explained that under s. 23 of the CLRA, the Court may exercise its jurisdiction over a child who is habitually resident of another jurisdiction but who is present in Ontario if the abducting parent proves, on a balance of probabilities, that the child would suffer serious harm if removed from Ontario. In that context, whether the foreign jurisdiction considers the best interest of children when making parenting orders, and whether protective orders are available to keep a parent or a child safe from family violence, become crucial considerations in the court’s analysis as to whether to assume jurisdiction over a child who is not habitually resident in Ontario. If serious harm is established, it will be in the child's best interests for the Ontario court to assume jurisdiction and decide on custody on the merits because “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”: at para. 66.

[48] However, these considerations do not apply when the Court considers whether it should assume jurisdiction over a child’s whose habitual residence is Ontario and order the child’s return to this jurisdiction. The CLRA contains several provisions allowing the mother to seek protective orders as may be necessary to ensure her and the child’s safety once she is back in Ontario (or even in preparation for her return to Ontario). There should be no concern that the judge who is seized of the substantive issue of parenting in Ontario will take into consideration, as required by our legislation, the existence of family violence and its impact on the best interests of this child, and will make orders accordingly.

Expert evidence

[49] Both parties spent significant resources hiring experts on Jordanian law to assist this court in determining whether the Jordanian Courts are required to consider a child’s best interests before making a parenting order. Given the order I make today, I am of the view that the expert evidence provided is irrelevant.

Conclusion

[50] Based on the above, I declare that Ontario has jurisdiction to make a parenting order with regards to the child, including an order requiring the mother to return the child to Ontario which is his habitual residence.

[51] Given that the mother may need some time to secure new housing for her and the child in Ottawa, which efforts will likely be impeded by the upcoming Christmas Holidays, I will give her 30 days within which to comply with the order below, and return the child to Ottawa.

[52] Without coming to any conclusion in that regard, but given the concerns expressed by the mother in relation to the existence of family violence and her expressed fear for her physical and emotional safety once in Ontario, I am making a temporary without prejudice order preventing the father from coming within 150 meters of any place he knows the mother to be. This order shall not prevent communications between the parties, direct or indirect, for the purpose of arranging parenting time between the father and the child. This order shall remain in place until a temporary parenting order is in place providing otherwise.

[53] The following order shall issue:

1. The mother shall, within 30 days of this order, return the child to Ontario.
2. Forthwith upon the child’s arrival to Ontario, the mother shall deposit the child’s Jordanian birth certificate, Jordanian passport, Canadian birth certificate, and Canadian passport with her counsel or with the father’s counsel, who shall hold same in trust pending further order of the Court. These documents shall not be released to either party without a court order.
3. Once the child returns to Ontario, neither party shall remove him from Ontario without the other parent’s notarized consent or a court order, pending further order of the Court.
4. Until the child returns to Ontario, or further order of the Court, the father shall have video calls with the child on a daily basis for up to 30 minutes at a mutually agreeable time. If the parties cannot agree on a time, the calls shall take place at 10 a.m. Eastern Standard time.
5. Until further order of the court, and on a temporary without prejudice basis, the father shall be refrained from attending within 150 meters of any place where he knows the mother to be.
6. The mother has leave to amend her Answer. This shall be completed within 30 days.

[54] I decline making a police enforcement order (in Canada), as requested by the father, and I decline making a temporary parenting order. The focus of this motion was jurisdiction, not parenting. However, I make the following additional order:

7. Once the child is returned to Ontario, the parties have leave to bring an urgent motion on 15 days’ notice to seek a temporary parenting order. While I am not seized of this motion, all efforts should be made to have it scheduled before me.
8. All other issues must proceed to a Case Conference as required by the Rules before an interim motion is brought on any of them.

Madam Justice Julie Audet Released: December 18, 2024