Patel v. Hamdaoui, 2025 ONSC 1183

Ontario Superior Court of Justice

Court File Number: FS-24-00000155-0000
Location: 7755 Hurontario Street, Brampton ON L6W 4T6

Applicant(s):
Mustafa Patel
Counsel: Farrah Hudani | Jane North
Email: farrah@bhdllp.com, jane@bhdllp.com

Respondent(s):
Maryam Hamdaoui
Counsel: Ali Chaudary
Email: achaudary@walkerhead.com

Presiding Judge: L.B. Stewart

Hearing Dates: January 15, 2025 & January 21, 2025
Decision Released: February 24, 2025

Reasons on Hague Application

Table of Contents

• Overview
• Materials Filed
• Major Events Chronology
• Litigation in Morocco
• Jurisdiction
• Wrongful Removal: Elements of Article 3
• Date of Removal
• Date to Assess Habitual Residence
• Habitual Residence
• Rights of Custody
• Delay
• Defences to Wrongful Removal
• Consent / Acquiescence
• Grave Risk of Harm
• Costs
• Orders

Overview

1The applicant/father, Mr. Patel, and the respondent/mother, Ms. Hamdaoui, were married in November 2015 in Morocco (Ms. Hamdaoui’s home country). The couple separated on November 23, 2023, also in Morocco. The parties have two children of the marriage, R (born May 2018) and J (born April 2021). Ms. Hamdaoui and the children travelled from Morocco to Canada on April 13, 2024, and remain here.

2The separation was caused by Mr. Patel’s proposal that he practice polygamy, something that the couple specifically forbade in their original marriage contract. According to the parties, polygamy is legal in Morocco in certain circumstances, and requires the wife’s consent.

3Mr. Patel seeks an order that the children return to Morocco pursuant to the Hague Convention, arguing that the family relocated from Canada, and Morocco was the habitual residence of the children at the time of their removal.

4Ms. Hamdaoui opposes the return of the children. Ms. Hamdaoui says that Ontario is and has always been the habitual residence of the children and argues that the family’s absence from Canada was merely a lengthy trip to visit other countries. She therefore asks the court to dismiss this application and find that Ontario has jurisdiction to hear the parenting issues.

5For the reasons that follow, I find that the children were wrongfully removed from Morocco to Canada in April 2024, and that the defences of consent and grave risk of harm are not proven. Given these findings, the court is required to order the return of the children to Morocco. In arriving at this decision, the court relies upon and adapts the undertakings given to Mr. Patel:

a. Mr. Patel undertakes to provide Ms. Hamdaoui with sufficient funds to rent a three-bedroom home in addition to a monthly sum sufficient for groceries, school fees, health care, dental care and activities for the children.

b. Mr. Patel also undertakes to consent to a joint guardianship in Morocco.

6Of course, given these undertakings, the court also expects Mr. Patel to ensure the safety of Ms. Hamdaoui and the children in Morocco including, but not limited to not being physically, verbally or otherwise abusive towards Ms. Hamdaoui, her family or the children. This includes ensuring that Ms. Hamdaoui is not arrested or otherwise detained in Morocco.

7The court also expects both parties not to disparage or belittle each other, including to/or in the presence of the children.

Materials Filed

8In accordance with the scheduling order, the parties filed evidence by way of affidavit and cross examinations were conducted during the hearing.

9No out of court cross examinations were conducted.

10The following evidence was filed:

Witness Name	Description	Called By	Affidavit Dates	Cross Examined?
Mr. Patel	Applicant	Applicant	Dec 13, 2024; Dec 16, 2024; Jan 3, 2025	Yes
Reda Oulamine	Legal Expert	Applicant	Jan 3, 2025	No
Yakub Patel	Applicant’s father	Applicant	Dec 13, 2024	No
Ms. Hamdaoui	Respondent	Respondent	Dec 20, 2024; Dec 31, 2024	Yes
Fatima Patel	Applicant’s mother	Respondent	Dec 20, 2024	No
Nasma Hamdaoui	Respondent’s sister	Respondent	Dec 20, 2024	No

11At the outset of the hearing, there was disagreement regarding an additional affidavit from Ms. Hamdaoui dated January 14, 2025, with effective service on the first day of the hearing. Ultimately, the respondent did not wish to rely on this additional affidavit. It was not uploaded to Case Centre and the court did not review it.

12The vast majority of materials were filed in English. Where documents were in another language, the parties arranged for official translations for the court. The only exception to this was text messages by the parties. The majority of these messages were in English with occasional Arabic characters. The Arabic words were not translated for the court and neither party relied on them in their evidence.

13Both parties swore affidavits and testified in English. Ms. Hamdaoui testified that she speaks four languages: a Moroccan dialect, Arabic, French and English. Mr. Patel did not give evidence about whether he spoke any languages in addition to English.

14During the marriage, Ms. Hamdaoui and Mr. Patel communicated in English.

15Neither party requested interpretation during the hearing. Neither party expressed any difficulty with comprehension in their affidavits or during the hearing.

16Both parties were cross-examined vigorously during the hearing.

Major Events Chronology

17Mr. Patel is a Canadian citizen and has two children from a previous marriage, Hu and Ha, both in their late teens. Hu and Ha were living in Canada in 2015.

18The parties married in Morocco in 2015, after meeting online. Both parties had been divorced previously. Ms. Hamdaoui was a Moroccan citizen. The parties signed an agreement in the same month they married, setting out several terms, including that the couple would not engage in polygamy.

19Mr. Patel sponsored Ms. Hamdaoui to Canada. The parties lived in Richmond Hill (a community just north of Toronto) in a house on which only Mr. Patel was on title. Mr. Patel had owned this house with his previous wife and bought out her interest at the time of their divorce.

20The parties owned two vehicles in Ontario. (It is not known when Ms. Hamdaoui acquired her vehicle. There is reference to her working on obtaining her Ontario driver’s license in 2022).

21The parties had their first child in May 2018 and their second child in April 2021.

22The evidence is that the family did travel, although it was curtailed by the pandemic. Mr. Patel recalls visiting Morocco approximately four weeks per year. There is also a reference to the family having gone to the United Arab Emirates for one–two months. Ms. Hamdaoui said that the family travelled frequently but gave no evidence about the length of the trips prior to 2022.

23At some point, Hu started to experience mental health issues. The family originally departed Ontario in March 2022 with Hu so that Mr. Patel could find a medical diagnosis and care for him. Hu was later diagnosed with schizophrenia and requires institutional care. The parties disagree about the level of care he is receiving but that is irrelevant to this case. What is relevant is that Hu is living in the same city as his father but does not live in the same dwelling as the parties and their children.

24The parties agree on the following dates and places:

a. March 9, 2022: Parties and children travel from Ontario to Morocco;
b. March 9 to June 6, 2022: Ms. Hamdaoui and children stay in Morocco. Mr. Patel and Hu traveled in the region seeking medical care.
c. June 6, 2022 to January 15, 2023: Parties, children and Hu travel from Casablanca to Istanbul and stay in Istanbul until January 15, 2023
d. January 15, 2023 to June 1, 2023: Ms. Hamdaoui and children in Ontario. Mr. Patel back and forth between Ontario, Istanbul and Casablanca. Hu is moved from Istanbul to Casablanca.
e. June 1, 2023 to June 9, 2023: parties and children go from Toronto to Istanbul
f. June 9, 2023: parties and children travel from Istanbul to Morocco
g. June 2023 to April, 2024: parties and children in Casablanca, except for one month in September, 2023 when the parties were in Canada. Ms. Hamdaoui obtained her Canadian citizenship on that visit.
h. November 23, 2023: the parties separate in Morocco.
i. Mid-April 2024: Ms. Hamdaoui and the children travel from Morocco to Canada.

25Although the parties agree on the dates and places noted above, they disagree about the purpose of the travel. Mr. Patel says that the travel to Istanbul in 2022 and Casablanca in 2023 were relocations and that the return to Canada in 2023 was to prepare the house for sale. Ms. Hamdaoui says that the travel was simply that – extended travel with no intention of giving up Ontario as their home.

Litigation and Relevant Law in Morocco

26Mr. Patel started divorce proceedings in Morocco in February 2024. Mr. Patel also started a second proceeding regarding parenting in October 2024. Ms. Hamdaoui has responded to both proceedings, and they are ongoing.

27Mr. Patel submitted affidavit evidence from a Moroccan lawyer, Mr. Reda Oulamine and tendered him, in writing, as an expert.

28The court reviewed Mr. Oulamine’s CV, acknowledgement of expert’s duty and affidavit. Briefly, Mr. Oulamine received his legal education in France and the United States. He has practiced law in both Morocco and the United States. His early career in Morocco (1998 to 2000) was in corporate-commercial non-litigation work. He worked in the US between 2001 and 2004, including some time doing document review in non-family law litigation cases. In 2004, Mr. Oulamine returned to Morocco and opened his own firm which offers services in business law, family law, criminal law and legal reform consulting. He has practiced family law in Morocco for 18 years.

29For the purposes of this hearing, I find that Mr. Oulamine is qualified to provide evidence on the rights and obligations of parents in Moroccan family law, specifically on the topics of custody and guardianship.

30Mr. Oulamine’s affidavit opined on the following Moroccan legal principles:

a. Children born to a Moroccan parent are Moroccan citizens.
b. Procedurally, the divorce application typically occurs first and following the divorce, the parenting case occurs.
c. While the parties are still married, they both have rights of custody under the Moroccan Family Code. (This opinion was premised on the understanding that the parties are still married in Morocco and neither party challenged that assumption during the hearing).
d. Once the parties are divorced, Moroccan law states that child custody shall be awarded first to the mother, then to the father, then to the maternal grandmother. The court has the discretion to examine the facts of the case and award custody to the most suitable of the child’s relatives.
e. Custody pertains to personal and physical protection. Moroccan law also recognizes guardianship, which requires a guardian to safeguard a child’s legal and material interests.
f. The Moroccan Family Code provides that the father is the legal guardian of the children.
g. Mr. Patel has undertaken to consent to an order for joint guardianship. Such a consent order for joint guardianship would be enforceable in Morocco.

31Mr. Oulamine was not cross examined and his evidence was not challenged.

32Ms. Hamdaoui did not submit any expert evidence regarding legal issues in Morocco.

Jurisdiction

33Neither party argued that this court lacks jurisdiction. This court has jurisdiction under the Convention on the Civil Aspects of International Child Abduction, Can.T.S. 1983 No. 35 (Hague Convention) because:

a. Mr. Patel filed an application for the return of the children;
b. The Ontario Children’s Law Reform Act (section 46(2)) adopts the Hague Convention and confirms that it is in force in Ontario;
c. Morocco is a contracting state (effective July 1, 2017) and the Hague Convention was in force between Morocco and Canada at the time these children were removed; and
d. The children are under the age of 16.

Stage One Analysis: Was There Wrongful Removal?

34Article 3 of the Hague Convention defines whether there has been a wrongful removal or retention in Canada from a contracting state. To succeed in proving that the children were wrongfully removed from Morocco to Canada, the applicant, Mr. Patel, must satisfy the court that:

a. The children were habitually resident in Morocco at the time of removal;
b. There was a breach of rights of custody under Moroccan law;
c. Mr. Patel was exercising rights of custody at the time of removal; and
d. Delay is not a bar to return.

35The purpose of this hearing is not to determine the merits of custody unless the court determines that the children should not be returned to Morocco. The decision about wrongful removal and whether to return is not based on who should have custody, parenting time, or decision-making responsibility. Rather, the Hague Convention presumes that the interests of children who have been wrongfully removed are better served by immediately returning them to their original jurisdiction where the issues regarding their best interests will be determined. The purpose is to restore the status quo which existed before the wrongful removal or retention (Ceballos v. Casanova, 2024 ONSC 6865, paras 24 and 25).

Date of Removal

36The parties agree that Ms. Hamdaoui took the children from Morocco to Canada on or about April 13, 2024.

Date to Assess Habitual Residence

37The Ludwig framework asks the court to determine the jurisdiction in which the child was habitually resident immediately before the date of removal. In this case, April 13, 2024.

38However, Ms. Hamdaoui asks the court to assess habitual residence as of a different date: November 29, 2024, when Mr. Patel started this application and 7.5 months after the removal.

39Ms. Hamdaoui argues that in cases of open-ended or indeterminate consent, the date is usually fixed as when the left behind parent first formally asserted his right or demanded the child’s return (Beairsto v. Cook, 2018 NSCA 90, para 99).

40Ms. Hamdaoui also argues that, despite the agreement of the parties on date of removal, the court is not bound to accept the dates of alleged wrongful retention (and by extension, removal) by the parties. It is a factual determination to be made by the court (Ogunboye v. Faoye, 2023 ONCJ 46, para 72).

41The court agrees that it is not bound to accept an agreed upon date of removal and it is a question of fact. However, I find there is no basis to depart from the agreed-upon removal date in this case.

42The law cited by Ms. Hamdaoui in favour of using November 29, 2024 as the date to assess habitual residence is inapplicable to these facts. There was no consent (open-ended or indeterminate) by Mr. Patel for the children to leave Morocco for Canada. Indeed, all of the evidence is that Mr. Patel had no advance knowledge of the trip. He therefore could not have consented to the trip.

43On the facts of this case, the date of removal (April 13, 2024) should be used to assess habitual residence.

44The separate issue of consent/acquiescence as a defence to the allegedly wrongful removal is addressed below in the Stage Two analysis.

Habitual Residence

45The parties agree on the legal test for habitual residence. In 2018, the Supreme Court of Canada adopted a hybrid test for habitual residence, meaning that the court must consider any and all relevant factors (including, but not limited to, parental intention) to determine the focal point of the child’s life (Office of the Children’s Lawyer v. Balev, 2018 SCC 16, para 73).

46In 2019, the Ontario Court of Appeal provided a detailed, stepwise framework for implementing the hybrid test (Ludwig v. Ludwig, 2019 ONCA 680, para 40):

a. The court’s task is to determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention.
b. To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances:
i. The child’s links to and circumstance in country A;
ii. The circumstances of the child’s move from country A to country B; and
iii. The child’s links to and circumstances in country B.
c. In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors:
i. The child’s nationality;
ii. The duration, regularity, conditions, and reasons for the child’s stay in the country the child is presently in; and
iii. The circumstances of the child’s parents, including parental intention.

47Determining habitual residence is a fact-finding exercise. It does not require the court to find that a child has no connection with one jurisdiction and all the connections with another jurisdiction. That is not practical, nor does it reflect the reality of many families in 2025, who have close and legitimate ties to more than one jurisdiction.

48It is not disputed that the family was in Morocco at the time of separation (November 2023) and when Ms. Hamdaoui took the children to Canada (April 2024). The core question is why the children were in Morocco. Mr. Patel says it is because the family had relocated from Canada. Ms. Hamdaoui says it was because they were on a lengthy trip and always intended to return to Canada. In assessing these competing positions, the court considered the following factors as a whole:

a. Citizenship
b. Family and friend connections
c. Contemporaneous communications re: going to Istanbul and Morocco
d. Housing and transportation, including contemporaneous communications about Ontario house
e. Schooling for children
f. Activities for children
g. Healthcare for children
h. Communications with friends and family
i. Airline tickets
j. Separation in November, 2023
k. Alleged plan to orchestrate move to Morocco
l. Return to Canada in September, 2023
m. Focal point of lives defined as person not place
n. Ms. Hamdaoui’s change of intention
o. Evidence from other affiants

49Citizenship: this cosmopolitan family had citizenship and permanent residence in different countries, summarized as follows:

	Canada	Turkey	Morocco
Patel	Y	Y	Y
Hamdaoui	Y (2015), Y (2023)	Y	Y (birth)
Older Child	Y (birth)	Y	Y (by parentage)
Younger Child	Y (birth)	Y	Y (by parentage)

50As noted above, the children were Moroccan citizens because they were born to a Moroccan parent (Ms. Hamdaoui). Even so, the family had to arrange for Moroccan citizenship to be confirmed for the children and Ms. Hamdaoui took these steps. The parties disagree about why this was done. Mr. Patel says it was evidence of their relocation and Ms. Hamdaoui says it was to facilitate travel.

51Likewise, the parties disagree about why the family obtained permanent residency in Turkey and why Mr. Patel obtained permanent residency in Morocco. Mr. Patel says it is because the family intended to relocate (first to Istanbul, then to Morocco) and Ms. Hamdaoui says obtaining permanent residency was just to facilitate travel.

52Given the connections that the family members had with various jurisdictions, the court does not find citizenship and/or permanent residence dispositive in determining habitual residence.

53Family and Friend Connections: Ms. Hamdaoui is originally from Morocco and her parents and sister still live there. The children had strong relationships with their grandparents and aunt. Although Mr. Patel did not have any of his own family in Morocco, Hu also came to Istanbul and Casablanca. Mr. Patel says his father recently relocated to Morocco, but that information is irrelevant to this case as Mr. Patel’s father moved to Morocco after the children were taken to Canada.

54Mr. Patel had many family connections in Canada, including his two older children, his parents and his ex-wife. He had owned the Richmond Hill home since before the parties were married. He ran a business from Ontario, although the labour force was international. He stopped working in the business a few years ago and started litigation against his business partner. There is no evidence as to what jurisdiction the litigation is in.

55Ms. Hamdaoui led no evidence of any family or friend connections in Canada. Her mother visited from Morocco on a visitor visa, but the precise dates were not given. There was no evidence of activities, friends or community in general. Perhaps the most stark example of this was that Ms. Hamdaoui sought out the services of a women’s shelter upon her arrival in Ontario in April, 2024 (as opposed to seeking the support of friends or other community members). Ms. Hamdaoui asserts that it was always the family’s plan to return to Ontario, but she offers no evidence of connections in support of this.

56Ms. Hamdaoui does point to her registration for a doula course through the Canadian Doula Institute on May 31, 2023. This course was on-line, not in person. Ms. Hamdaoui’s position is that doulas are not professionally recognized in Morocco so that she could only work in Canada. Assuming this is correct (there was no supporting evidence), there was no evidence of any coursework completed between May 2023 and the date of this case, nor was there any evidence of Ms. Hamdaoui’s intention to work outside home. Indeed, her evidence emphasized that the parties occupied traditional roles in the marriage, with Mr. Patel responsible for supporting the family economically and Ms. Hamdaoui responsible for domestic support and childcare.

57On balance, the evidence demonstrates that Ms. Hamdaoui’s connections to Morocco were much stronger than her connections to Canada.

58Contemporaneous communications re: going to Morocco and References to Moving: as noted above, Mr. Patel took his son to various locations in spring, 2022 seeking a diagnosis and treatment for him. During those travels (early March to early June 2022) Ms. Hamdaoui and the children stayed with her parents in Morocco. Mr. Patel says that the family decided to relocate to Istanbul to get treatment for H and also because Ms. Hamdaoui was not happy in Canada. In January 2023, the family returned to Ontario in order to prepare the house for sale (this topic is addressed below). Ms. Hamdaoui stayed in Ontario for six months with the children. The family then landed in Morocco in June 2023.

59Against this factual backdrop, there are numerous communications between the parties with references to moving from Canada, as opposed to travelling, including the following statements from Ms. Hamdaoui regarding moving from Canada.

Examples of communications omitted for brevity; see original for full text.

60I find that Ms. Hamdaoui’s own contemporaneous language in 2023 illustrates that she regarded the travel to Morocco as a move, she contemplated that it may be for several years, and she was looking forward to living in Morocco.

61Housing and Transportation: in Morocco, the parties signed a one-year lease on an apartment. Ms. Hamdaoui says she only signed the lease as the local authorities wanted a Moroccan citizen on the contract, but she offered no evidence in support of this proposition. The parties also purchased a car for Ms. Hamdaoui’s use in Morocco.

62In Turkey, the parties also leased an apartment for a year, but did not stay for the full term of the lease. Ms. Hamdaoui testified that this was not unusual, in that Mr. Patel did not have any difficulty paying for things that they did not intend to use.

63In Ontario, the family lived in a house in Richmond Hill. Mr. Patel was the sole person on title. He owned the house prior to the parties marrying. The parties occupied the home when they were in Canada.

64Ms. Hamdaoui and the children were in Ontario between mid-January 2023 and June 1, 2023. Mr. Patel says the purpose of this visit was to ready the house for sale and that a lengthy time was required in order to address issues with the house which had occurred because of being absent for many months (raccoon infestation, etc).

65Ms. Hamdaoui maintains that the home was sold surreptitiously. She thought the house was going to be rented out on AirBnB and that Mr. Patel told her it was necessary to post a sold sign in order to avoid paying taxes. Her evidence is that she had no idea the house was sold until she arrived in Canada on April 13, 2024. She offers no evidence about:

a. How she learned the home had been sold;
b. How or why she thought the house would be available to her upon her return to Canada if it was rented out on AirBnB.

66There is contemporaneous evidence which contradicts Ms. Hamdaoui’s position, showing that the parties exchanged messages regarding the house sale and Ms. Hamdaoui participated in readying the home for sale. There is no question that the parties contemplated renting the house out, if it did not sell, but there are multiple references to the plan for sale.

Examples of communications omitted for brevity; see original for full text.

67In addition to the sale of the home, the parties agree that both of their vehicles were sold and many of their belongings were sold. Ms. Hamdaoui says that furniture was left in the house, ostensibly for their return, but there is no evidence of this.

68Mr. Patel also relies on the agreement of purchase and sale dated June 13, 2023 showing the closing date as September 12, 2023 (which was later amended to December, 2023). This agreement is not proof of Ms. Hamdaoui’s knowledge of the sale as there is no evidence that she ever saw this agreement. She was not a party to the agreement.

69There is a dispute as to whether this house was the matrimonial home, whether Mr. Patel engaged in impropriety when the home was sold (in that he certified on the closing documents that he was not a spouse for the purposes of the transaction) and whether he had any obligation to share the proceeds of sale with Ms. Hamdaoui. These issues are not before the court in this Hague application.

70On balance, these contemporaneous communications show that Ms. Hamdaoui was aware that the home was for sale and that it sold for $2.2M in June 2014.

71Schooling: The younger child (born April 2021) was not enrolled in classes in any location. The older child (born May 2018) was not enrolled in any school in Ontario, even when she was in Ontario from January 15 to June 1, 2023, when the child was five and eligible for school. I find this is a significant fact. If Ontario was the habitual residence of the children and they were going to continue their education in this province, one would expect the older child to have attended school during this 5.5-month period.

72In Morocco, the older child was enrolled at Ecole George Wilhelm in Casablanca. The school document states that she was enrolled in kindergarten started September 1, 2023, and left the school on January 31, 2024.

73The older child’s precise school attendance in Casablanca was not in evidence. Although she was registered effective September 1, 2023, the parties are agreed that she was in Ontario until early October 2023, so could not have attended the Wilhelm School in September.

74The parties also disagree on the purpose of the enrolment. Mr. Patel maintains that the child was registered for kindergarten whereas Ms. Hamdaoui maintains that the child attended infrequently, and the sole purpose of the registration was to give the child some exposure to French (which the child did not speak). Regardless of which position is accepted, the practical reality is that the older child was registered in school in Casablanca and did attend, even if not full-time.

75On April 24, 2023, the parties exchanged a text in which Ms. Hamdaoui asked Mr. Patel if he was 100% sure they would be in Morocco until the children were in their 20’s. If not, Ms. Hamdaoui was unsure if they needed to learn French, noting that English is the international language in the event the family moves to another country eventually. I find this text significant for two reasons:

a. First, Ms. Hamdaoui contemplated, in April 2023, that the family was living in Morocco because she queried whether they might move to another country “eventually” but also contemplated that they would stay in Morocco until the children were in their 20’s, a period of almost two decades.
b. Second, the older child was registered in the French school for the fall of 2023. The family clearly concluded that they would be in Morocco for a sufficient period and that the child would benefit from French language skills.

76The parties agree that Ms. Hamdaoui was home-schooling the children. She says she was doing so using the Ontario curriculum. There was no evidence of this, such as the actual curriculum or home school plan. This is particularly important given that the older child could have been in school in Ontario from January to June 2023, but she was not placed there.

77The schooling arrangements for the older child favours the habitual residence being Morocco.

78Activities for children: there was no evidence of what activities the children were enrolled in while in Ontario. Given their young ages, this is not surprising. Once in Istanbul, both children were enrolled in gymnastics lessons. The older child was enrolled in karate lessons in Casablanca. It seems that the older child was taking Quran lessons in Ontario, Istanbul and Morocco, but there is a dispute between the parties as to whether these lessons were online or in person once in Morocco. As noted above, Ms. Hamdaoui contemplated hiring an in-person teacher once the family moved to Morocco.

79The fact that the older child was enrolled in karate in Morocco is a fact in favour of habitual residence as opposed to a trip.

80Healthcare for Children: Mr. Patel points to evidence that both children saw paediatricians in Casablanca (he had evidence of three appointments post separation). Ms. Hamdaoui agreed in cross examination that the children saw physicians frequently in Morocco.

81The parties also agree that the children had OHIP cards (Ontario Health Insurance Program) and that those cards were renewed in the spring of 2023.

82I do not find the healthcare information persuasive for either party’s position on habitual residence. There is no evidence that the children were or were not enrolled in medical practices in either country. It is only prudent to ensure that registration for government-insured programs (like OHIP) is kept current, especially for children. It is not surprising that young children would require medical care, sometimes frequently.

83Communications with Friends and Family: Mr. Patel provided some text messages with friends and family, referring to the move to Morocco. Ms. Hamdaoui did not provide any corresponding messages with the exception of a contradiction. Ms. Hamdaoui’s sister swore an affidavit in which she said that Ms. Hamdaoui “indicated to me that he and Mustafa [Mr. Patel] were travelling for a few months between Canada, Turkiye, and Morocco, and that they would eventually be returning back to Canada.” The sister was not cross examined on the affidavit.

84However, there is a contradictory text from the sister on November 27, 2023 (four days after the couple separated and the day Mr. Patel left the couple’s apartment in Morocco). The court is unable to put much weight on the text as Mr. Patel did not provide the full chain, but the sister writes: I don’t understand why do you keep lying? What Canada? She literally lives with you here in Morocco you guys all came back to live here, but you decided to get divorced cause you have some other girl in your life that you want to marry and took mariams [sic] passports and your [children’s] passports to pressure her accept you to have a second wife...

85Airline Tickets: Mr. Patel produced airlines tickets as proof of travel on specific dates. He placed considerable emphasis on the fact that one-way tickets were purchased at various times. The court does not accept that one-way tickets are necessarily evidence of a lack of intention to return. Many years ago, round trip tickets were cheaper than one-way tickets. That is a relic of another time. This family travelled widely and frequently. The presence (or absence) of one-day tickets is not persuasive for either party.

86Separation in November 2023: The parties separated in November 2023. The parties have different accounts of how happy or smooth the relationship was leading up to the date of separation. The parties agree that, in November 2023, Mr. Patel proposed taking another wife (if not more) and having a polygamous marriage. The evidence given by the parties is that polygamy is legal in Morocco provided that the spouses consent. However, Ms. Hamdaoui’s evidence is that polygamy is forbidden when the marriage contract excludes it. Ms. Hamdaoui felt pressured to consent or else Mr. Patel would divorce her.

87For Ms. Hamdaoui, the polygamy proposal shattered the foundations of her marriage. She married Mr. Patel in 2015 with a contract stating, among other things, that their relationship would not include polygamy. Mr. Patel displayed a more nonchalant attitude in his evidence, comparing the marriage agreement to any other contract (like a real estate agreement of purchase and sale) which was open to negotiated amendment.

88While the court does not, for a moment, discount or diminish the profound upset, grief and disappointment that Ms. Hamdaoui experienced in November 2023 when faced with a choice of agreeing to a polygamous relationship or ending her marriage, Mr. Patel’s proposal to take multiple wives is not relevant to the determination of habitual residence. The question is where the children were habitually resident in April 2024, not November 2023.

89I do find that Mr. Patel’s proposal to take multiple wives is relevant in one respect. It was this fracturing of the relationship which made Ms. Hamdaoui change her mind about being in Morocco. As she stated in cross examination, it was not the divorce itself that was upsetting, but rather the way in which Mr. Patel chose to do it. This made Ms. Hamdaoui rethink her presence in Morocco.

90Ms. Hamdaoui was angry that Mr. Patel held her passport and those belonging to the children immediately after separation. There is competing evidence regarding Ms. Hamdaoui’s passport – Mr. Patel says he returns it, and Ms. Hamdaoui denies this. They do agree that he kept the children’s passports. In December 2023, Mr. Patel texted Ms. Hamdaoui and stated that he had kept the children’s passports as he did not want the children to leave Morocco without his consent.

91Plan to Orchestrate Move to Morocco: Ms. Hamdaoui argues that the travel to Istanbul and then to Casablanca was part of a larger long-term plan on the part of Mr. Patel to get her to move to Morocco so that he could propose polygamy or separate in a jurisdiction where she had fewer rights. Her evidence in response to a cross examination question (but not part of her affidavit) was that, during separation discussions, Mr. Patel commented that he never would have separated in Canada where he would have had to give Ms. Hamdaoui half of his wealth.

92Ms. Hamdaoui’s own evidence is that she felt that Mr. Patel had been “planning this since Turkey”, not Canada. This is supported by Mr. Patel’s own communications about when he started to consider a second wife.

93The court understands that Ms. Hamdaoui felt betrayed by Mr. Patel’s request for her consent for a polygamous marriage when he made the proposal in November 2023. However, there is no evidence that Mr. Patel proposed leaving Canada under false pretenses.

94Return to Canada in September 2023: the family returned to Canada for a month in September 2023. There is differing evidence about the reason for the return. Mr. Patel says it was to complete the house sale and wind up their Canadian affairs (although the house did not actually close until December 2023). Ms. Hamdaoui wanted to return for her Canadian citizenship ceremony. Indeed, Mr. Patel complained in a text that Ms. Hamdaoui had been bothering him about making this trip.

95Focal Point of Lives Defined as Person, not Place: As noted above, the test for habitual residence requires the court to find the “focal point of the child’s life, namely the family and social environment in which its life has developed,” immediately prior to removal. Ms. Hamdaoui argues that, due to the children’s young ages and their strong bond to her, the court should define their focal point as a person (her) and not a place.

The older child was just shy of six and the younger child was three at the time of removal. The practical reality is that, although young and dependent on adults for care, children can interact with the world (albeit the world close to them), knowing relatives and participating in activities external to the family. The evidence is that both parents were important to the children and were involved in their lives.

96Evidence from Other Affiants: the analysis above focuses on the evidence given by Mr. Patel and Ms. Hamdaoui. As noted above, the court also received affidavits from Mr. Patel’s father (in support of the applicant) and Mr. Patel’s mother and Ms. Hamdaoui’s sister (in support of the respondent). For the most part, these affidavits were not useful to the court for the following reasons:

a. They contained hearsay;
b. Statements that were not hearsay pertained to the best interests of the children, which is not at issue in this application.

Findings on Habitual Residence

97Having considered all the evidence submitted by each party, and considered all of the above factors as a whole, I find that the preponderance of evidence demonstrates that the children were habitually resident in Morocco just prior to their removal to Canada in April 2024.

98If the court is wrong in finding that the children were habitually resident in Morocco at the time of their removal to Canada in April 2024, that does not lead inexorably to the conclusion that Canada was the habitual residence. It cannot be ignored that the family relocated from Canada to Istanbul for a significant period of time before moving to Morocco. While in Istanbul, the parties signed a year-long lease on an apartment and registered both children in gymnastics lessons. If Morocco was not the habitual residence of the children in April 2024, then Istanbul would be the alternative, not Canada.

Rights of Custody

99Based on the evidence from the legal expert, Mr. Oulamine, the court is satisfied that Mr. Patel had custody rights at the time the children were removed from Morocco. Ms. Hamdaoui does not dispute this.

Rights of custody were being exercised at the time of removal.

100Following separation in November 2023, Mr. Patel saw the children very rarely. However, it was not for a lack of trying. He sent multiple messages to Ms. Hamdaoui, asking to arrange for parenting time.

101Ms. Hamdaoui asks the court to find that Mr. Patel’s requests were insincere and hollow, but there is insufficient evidence to do so. The practical reality is that Mr. Patel was asking to see his children following the separation.

102Unfortunately, almost no parenting time occurred because of an impasse created by both parties:

a. Ms. Hamdaoui said that Mr. Patel was welcome to see the children provided that he saw them in the apartment with Ms. Hamdaoui and her family present. Mr. Patel did not feel safe in these circumstances.
b. Mr. Patel asked for parenting time to happen in a public place, such as a park or a shopping mall. Ms. Hamdaoui did not feel safe in these circumstances.

103The law is clear that exercising rights of custody is assessed using a low threshold. The court will only find rights of custody were not being exercised in clear cases of abandonment (Medina v. Pallett, 2010 BCSC 259, paras 29 to 31). This threshold is not met in this case.

Delay

104The final step in the wrongful removal test is whether delay is a bar to return. Ms. Hamdaoui argues that it is.

105As agreed by the parties, Ms. Hamdaoui took the children from Morocco to Canada on April 13, 2024. Mr. Patel says he reported the removal to the Canadian central authority in August 2024, but later realized that the Canadian central authority did not contact Ms. Hamdaoui.

106Mr. Patel then started this application on November 29, 2024, and served it by email on the same date.

107There was no evidence before this court of Mr. Patel’s communications with the Canadian central authority in August 2024. However, that evidence was not necessary as it is ultimately irrelevant to the delay argument.

108Article 12 of the Hague Convention states that children wrongfully removed or retained shall be returned forthwith if the time has been less than a year between the date of wrongful removal/retention and the date of commencement of proceedings.

109In this case, Mr. Patel’s application was started well within the one-year requirement.

110Mr. Patel’s alleged delay is not a bar to the return of the children.

111The conclusion of the Stage One analysis is that the children were wrongfully removed from Morocco.

Stage Two Analysis: Are There Defences to Mandatory Return?

112Ms. Hamdaoui asserts two defences to mandatory return under Article 13 of the Hague Convention. She argues, in the alternative:

a. Mr. Patel consented or acquiesced to the removal; or
b. There is grave risk that returning the children will expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Defence of Consent or Acquiescence

113The onus of proof is on the party asserting acquiescence using clear, cogent and unequivocal evidence (Oncu v. Oncu, 2009 BCSC 829, para 28; Katsigiannis v. Kottick-Katsigiannis, paras 41 and 48).

114Delay in commencing a Hague application, particularly within one year of the children’s removal, does not constitute consent or acquiescence (Ibrahim v. Girgis, 2008 ONCA 23, para 18).

115Consent or acquiescence can be a defence to wrongful removal. Consent is overt agreement. Acquiescence is unstated consent, agreeing tacitly, silently, or passively (Katsigiannis v. Kottick-Katsigiannis, para 47).

116In this case, consent is not a relevant defence. Mr. Patel cannot have consented to the removal of the children prior to April 13, 2024, because he did not know that the children were leaving Morocco. Once the children arrived in Canada, at no point did Mr. Patel overtly agree to their relocation.

117The only question on this defence is whether Mr. Patel acquiesced to the removal after the children had arrived in Canada and he learned of the children’s whereabouts.

118There is no question that, on one day, Mr. Patel appeared to have acquiesced. Ms. Hamdaoui says that Mr. Patel sent “repeated texts” on May 23, 2023, which constitute acquiescence. The court disagrees with the characterization of “repeated.” Mr. Patel sent multiple texts over a 2-minute period (5:55am to 5:56am) on May 23, 2024, all of which appear to be the same chain, in a stream of consciousness style, unbroken by any response from Ms. Hamdaoui. The relevant excerpts from Mr. Patel’s May 23 messages state:

a. Do you want me to buy you a car in Canada? I can rent you a house. Let me take care of you. Unless you found something already. Let me know.
b. You can keep living in Canada. Just let me help. I’m still responsible for you and for our daughters.
c. I thought you were safe with your parents and family. But now I’m actually worried about you. I can get you a place and a car. No problem. Just let me know. I know you have 50k. And a car in Morocco. But I can come to Toronto and buy you a nice car and get you a nice apartment. Just let me know. I don’t mind.

119Reading only the May 23, 2024, messages from 5:55am, Mr. Patel seems to have acquiesced. However, the court must consider the entirety of the communications and actions. The May 23 text messages are informed by other evidence, including:

Examples of communications omitted for brevity; see original for full text.

120One other text bears mention. Ms. Hamdaoui points to a text from Mr. Patel which states that they are wasting each other’s time, discussing the same points over and over. Mr Patel states: “I’m no longer interested in anything. I want nothing from you. I ask for nothing. Not even asking to meet the [children]. Not even for Eid. Please take care of yourself and our [children]”.

121Ms. Hamdaoui provided no date for this communication. Mr. Patel says it was sent months after separation in a moment of frustration. There is no evidence about whether it was sent before or after the children were removed from Morocco. The court’s view is that this communication is similar to the May 23 communication regarding housing in Ontario – it is not consistent with Mr. Patel’s overall narrative and is an outlier in the entire context of the case.

122On cross examination, Mr. Patel stated that he offered to buy an apartment and a car for Ms. Hamdaoui in Canada because he was worried; seeing the phone number of a women’s shelter in Brampton made him fearful that the children were staying in a shelter and were not safe. Mr. Patel also testified that he was trying anything to get Ms. Hamdaoui to respond.

123Regardless of Mr. Patel’s motivations on May 23 (children’s safety or trying to elicit a response from Ms. Hamdaoui), looking at the offers of housing and transportation against the backdrop of the other communications before and after that date do not amount to clear, unequivocal acquiescence. This defence cannot succeed. I find that Mr. Patel did not acquiesce to the children remaining in Canada.

Defence of Grave Risk of Harm

124Article 13(b) of the Hague Convention permits a court to refuse to return a child where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

125Like consent/acquiescence, the onus is on the party alleging grave risk (in this case, Ms. Hamdaoui) to prove it on a balance of probabilities with considerable evidence that is clear and convincing (Gourgy v. Gourgy, 2018 ONCA 166, para 10).

126The test is a high one. Both the risk and the harm must be substantial (Thomson v. Thomson, para 597).

127The court can also consider the test in the context of a parent, upon whom a child is dependent, coming to harm (Pollastro v. Pollastro).

128In assessing the presence or absence of a grave risk, the court should ask three questions:

a. Has the alleged past violence been severe and is it likely to recur?
b. Has it been life-threatening?
c. Does the record show that the left behind parent (in this case, Mr. Patel) is not amenable to control by the justice system? (Hassan v. Garib, 2017 ONSC 7227, para 10)

129Ms. Hamdaoui does not allege any abuse or coercive control (physical, mental, financial or otherwise) prior to the date of separation. As of the date of separation, Ms. Hamdaoui says that she felt immense pressure from Mr. Patel to agree to polygamy. She feels that he kept her passport and the children’s passports as a method of exerting control over her.

130The text messages show that Mr. Patel very much wanted Ms. Hamdaoui to agree to polygamy as opposed to the alternative (divorce), but he was prepared to go ahead with divorce. Ms. Hamdaoui made it clear that she would not consent to polygamy.

131The parties separated on November 23, 2023, and Mr. Patel left the Morocco apartment on November 27, 2023. Following this, Ms. Hamdaoui points to two incidents which are the basis for the grave risk defence.

132First, Mr. Patel attended at Ms. Hamdaoui’s apartment. It is acknowledged that Mr. Patel did not say anything or touch anyone during this visit. He sat in a chair, silent, playing music on his phone and filming his family. In cross examination, Ms. Hamdaoui agreed that this incident was not erratic, dangerous or scary, but described it as weird. The court finds the behaviour to have been unusual and perhaps intimidating, but not violent.

133Second, on January 7, 2024, Mr. Patel got into a scuffle with Ms. Hamdaoui’s mother over a book. There was a brief video produced which shows a short altercation with both parties trying to move away from each other. Ms. Hamdaoui recorded this incident. In her cross examination, she stated that the viewer could not see her “fighting him [Mr. Patel] off” in the video because she was also making the video. The scuffle could not have been severe or prolonged if Ms. Hamdaoui was able to continue videoing the incident.

134Mr. Patel also used the phrase “Break your heads” in front of the children. According to Ms. Hamdaoui, this made the children fearful of their father.

135While none of this behaviour reflects well on Mr. Patel and while he should have ensured not to use threatening language like “break heads” in front of the children, these incidents do not rise to the level of satisfying the 13(b) defence.

136In answering questions one and two above, the alleged past violence was not severe and is unlikely to recur. The past violence was not life threatening. With respect to the third question, there was no direct affidavit evidence from either party regarding Mr. Patel being amenable to control by the Moroccan justice system. However, there was a text from Mr. Patel post separation which disparaged the Canadian justice system and expressed a preference for the Moroccan justice system, primarily because Morocco was a Muslim country. This, coupled with the fact that Mr. Patel chose to initiate proceedings in Morocco indicate that he will abide by the rulings of a Moroccan court.

137In addition to looking at physical and psychological violence, the court must also query whether there is coercive control.

138In this case, Mr. Patel has committed to financially support Ms. Hamdaoui and the children by way of formal undertaking. Prior to the undertaking, he also made similar offers in text messages.

139Although there was no financial control, there were other expressions of concern. Emotions were running high after the marital separation in November 2023 and the messages reflect that both parties were in a heightened state. Although this often occurs during the dissolution of a marriage, there are certain messages from Mr. Patel which leave the distinct impression that he was attempting to intimidate Ms. Hamdaoui. The messages include, but are not limited to:

Examples of communications omitted for brevity; see original for full text.

140In addition, Ms. Hamdaoui testified that Mr. Patel told her:

a. if they divorced in Morocco and she remarried, he would take the children away from her; and
b. he intended to recommend polygamy to his children as well.

141I find that the very high threshold of grave risk of harm is not met. However, the court does not condone any form of threats or intimidation between spouses no matter how upset a party is. Canadian family law does not tolerate violence. This tenet informs all aspects of family law, including parenting time and decision making.

Costs

142Costs were not addressed during the hearing.

143Neither party advised of a costs agreement. Neither party uploaded a bill of costs prior to, or during the hearing, in breach of the Central West Practice Direction.

144The parties are encouraged to agree on costs. If they will not, written costs submissions will be served, filed and uploaded to Case Centre on the following schedule:

a. Applicant by March 14, 2025 at 4pm;
b. Respondent by April 11, 2025 at 4pm.

145These deadlines cannot be varied unless by court order. If submissions are not received by these deadlines, the court will proceed on the basis that costs are not being sought.

146Costs submissions will be double spaced, in 12-point font, and three pages, maximum (exclusive of offers, authorities and bills of costs).

147The submissions and bills of costs will pertain only to the Ontario proceeding and shall not seek to recover any costs for any litigation conducted in Morocco.

Orders Made

148I therefore make the following orders:

a. Mr. Patel will arrange for an official translation of this decision into French and Arabic and provide it to the Moroccan court in both the divorce and parenting proceedings.
b. The children will be returned to their place of habitual residence in Casablanca, Morocco by March 17, 2025.
c. Mr. Patel shall provide Ms. Hamdaoui with sufficient funds to rent a three-bedroom home in addition to a monthly sum sufficient for groceries, school fees, health care, dental care and activities for the children.
d. Mr. Patel shall consent to a joint guardianship order in the Moroccan courts, in accordance with his undertaking given to this court.
e. The order of this court dated December 4, 2024, precluding the removal of the children from Ontario is superseded by this order requiring the children’s return to Morocco.

149The parties shall forward an order to my Judicial Assistant Pamela.Marsh@ontario.ca by March 5, 2025 date for signing. If there is any dispute regarding the form and content of the order, the parties may contact Ms. Marsh to organize a 9am appointment.

Stewart J.
Released: February 24, 2025

Endnotes

[1] R.S.O. 1990 c.C12, as amended.
[2] Ceballos v. Casanova, 2024 ONSC 6865, at paras 24 and 25.
[3] Beairsto v. Cook, 2018 NSCA 90, at para 99.
[4] Ogunboye v. Faoye, 2023 ONCJ 46, at para 72.
[5] Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at para 73.
[6] Ludwig v. Ludwig, 2019 ONCA 680, at para 40.
[7] Mr Patel’s unchallenged evidence is that Maghreb refers to the region in which Morocco is located.
[8] This court makes no finding on the current state of Moroccan law re: polygamy. Such a finding is not necessary to decide this case. Instead, the court is simply summarizing the law as described by the parties. Mr. Patel’s legal expert affidavit is silent on the topic of polygamy in Morocco.
[9] Medina v. Pallett, 2010 BCSC 259 at paras 29 to 31.
[10] Oncu v. Oncu, 2009 BCSC 829, at para. 28 and Katsigiannis v. Kottick-Katsigiannis, at paras. 41 and 48.
[11] Ibrahim v. Girgis, 2008 ONCA 23 at para. 18.
[12] Katsigiannis v. Kottick-Katsigiannis, at para 47.
[13] The text message referred to the genders of the children. The court has inserted the word children in order to protect the privacy of the children.
[14] Gourgy v. Gourgy, 2018 ONCA 166, at para. 10.
[15] Thomson v. Thomson, [1994] 3 SCR 551 at para 597.
[16] Pollastro v. Pollastro.
[17] Hassan v. Garib, 2017 ONSC 7227, at para 10.
[18] Consolidated Practice Direction for Central West Region, July 1, 2024, Part 5(n), at page 25.