Ontario Superior Court of Justice

Court File No.: FS-22-00000113-0000
Date: 2025-06-10

Between

Amin Joseph Barakat
Applicant
Dana Kalisky and Ruth Kalnitsky Roth, for the Applicant

-and-

Luna Mounir Andraos
Respondent
No one appearing, for the Respondent

Heard: November 15, 2024
Judge: E. Ria Tzimas

Reasons for Judgment

Introduction

[1] An uncontested trial was heard in this matter on November 15, 2024. For the reasons that follow, a final order is to issue in accordance with the draft Final Order filed with the court, subject to certain specific amendments discussed below. The final orders relate principally to the children’s residency with the Applicant, decision-making responsibilities, and parenting time for the Respondent. They presuppose the return of the children to this jurisdiction from Lebanon, for which a final order was issued on January 23, 2023, and which the Respondent continues to ignore.

Background

[2] The Applicant obtained leave to proceed with an uncontested trial on November 21, 2023. The Respondent's pleadings were struck as a result of her failure to comply with the court's order of January 23, 2023, requiring her to return the parties' two children to this jurisdiction from Lebanon, where they were wrongfully removed.

[3] To provide some context, the Application was commenced on September 2, 2022. The Applicant sought the immediate return of his two children from Lebanon where they were taken by the Respondent. At the time, the children were 4 and 8 years old. The history related to the children's removal from Canada to Lebanon as well as the legal implications were canvassed thoroughly in the court's decision Barakat v. Andraos, 2023 ONSC 582. The court considered its jurisdiction under s. 22(1) of the Children's Law Reform Act (CLRA), if it had jurisdiction, whether it should decline it, and whether the court should defer to court orders from the Lebanese Court under s. 41 of the CLRA. Ultimately, the court concluded that:

i. The Respondent abducted the parties' children and that they were being held in Lebanon since July 8, 2022;
ii. The court had jurisdiction to consider the Applicant's motion for the children to be returned to Canada, as the children were habitually resident in Ontario;
iii. The Respondent was ordered to immediately return the children to their habitual residence in Mississauga, Ontario at her own cost;
iv. The RCMP and the Ontario Provincial Police were authorized to take steps deemed necessary to enforce the return of the children to their Ontario residence; and
v. The children were to reside primarily with the Applicant and the Applicant would retain sole decision-making responsibilities for the children.

[4] The Applicant was ordered to serve on the Respondent by e-mail a copy of the court's endorsement. The return of the children was made on a final basis. The terms relating to the children's residence, once in Canada, and the Applicant's decision-making responsibilities were made on an interim basis.

[5] The Respondent did not comply with the court's orders; the children were not returned to Ontario, and she did not seek a stay of the January 23, 2023 orders. Although she sought leave to appeal the orders of January 23, 2023 to Divisional Court, she eventually abandoned those efforts the day after the Respondent gave evidence before a religious court in Lebanon. On May 10, 2023, in light of the Respondent’s defiance of the January 23, 2023 court order, the court imposed certain penalties on the Respondent.

[6] On November 21, 2023, the Applicant sought and obtained an order to strike the Respondent's pleadings and for leave to schedule an uncontested trial. The Respondent was duly served with the motion record but she neither filed responding materials nor attended to respond to the allegations against her.

[7] On that occasion, the judge hearing the motion noted:

The evidence is clear and uncontradicted, that the respondent continues in breach of the January 23, 2023 order directing her to return the children to Ontario and their habitual residence with the applicant. Based on all of the evidentiary record as well as the findings of fact made by Trimble J., I have no hesitancy in concluding that the respondent has purposefully and with a bad faith intention schemed to do all she can to avoid the jurisdiction of this court and to continue in her breach of the court's orders made thus far. I further that find her resistance to this court's orders is clear evidence that she has no intention whatsoever of complying with the orders of this Court, let alone paying the very substantial costs and penalty amounts that have been imposed upon her as a result of her continued breaches. She is ungovernable by this court and this has resulted in significant risk of harm to the children who are presently with her in Lebanon.

[8] In the result, the court struck the Respondent's pleadings, gave leave for the matter to proceed to an uncontested trial and made a substantial costs award.

Analysis

[9] The uncontested trial proceeded against the foregoing backdrop. On the evidence before this court, nothing has changed since the court's findings in the decisions of January 23, 2023, May 10, 2023, and November 21, 2023.

[10] The Applicant gave evidence of his various efforts to enforce the existing orders to have the children returned to him. He testified that his access remained exceptionally limited, that he visited the children in Lebanon on a couple certain occasions, but that otherwise his communications with the children were limited. He expressed significant worry over the political difficulties between Israel and Lebanon and the bombing of the region during the 2024 fall season. He said that the children were living just mere kilometers from the danger zone, and he feared for their safety.

[11] Insofar as the trial was about converting the court's interim orders concerning parenting and residency into final orders, the Applicant confirmed that he had the means to support the children and to provide them with an appropriate residence. He expressed the concern that even if the Respondent were to return the children to the jurisdiction, he could not trust her to have unsupervised access for fear that she might try to leave the jurisdiction with the children. Accordingly, any access with the children would have to be supervised. Similar concerns informed his requirement that he retain sole decision-making responsibilities. In the Applicant’s view, the respondent could not be trusted to put the children’s best interests ahead of her own wishes.

[12] On the strength of the evidence before me, including the Applicant's testimony, I am satisfied that it would be in the children’s best interests to reside with the Applicant, for the Applicant to retain sole decision-making, and for the Respondent to be permitted supervised parenting time. Before I turn to the specifics of these terms, in addition to the evidence before me, I cannot ignore the Respondent’s continued defiance of this court’s multiple orders. She remains ungovernable and evidently has no intention of returning the children to this jurisdiction.

[13] On the security situation in Lebanon, although the hostilities of last fall appear to have dissipated, it is far from clear that the children are safe and kept away from harm’s way. On balance, principally on the strength of the Applicant’s evidence, I am satisfied that the Respondent is compromising the children's safety and best interests.

[14] There is already a final order requiring the children to be returned to Ontario. There is therefore no need to make any further order on this point.

[15] Turning to the final orders concerning the specifics of the children's residency and parenting, the existing interim court orders, as outlined in the court's order of January 23, 2023 are to be made final, with the following variations.

[16] On parenting time for the Respondent, in-person time is to be supervised either in the community or through other supervised arrangements as the parties might agree to follow. Once the children reach the age of 16, parenting time may be unsupervised. In addition, the children should be permitted to have liberal virtual communications, albeit on an appropriate schedule, having regard for the school and related activities.

[17] On decision-making, although the Applicant shall have the sole decision-making responsibility for both children, he shall advise the Respondent of major decisions pertaining to their education, school activities, extra-curricular activities, medical issues, and religion/culture. Unless there is an emergency (as in an emergency medical situation), the Respondent shall have up to 30 days to provide reasonable input. Although the Applicant shall have the ultimate responsibility for the decision in question, his decision must be reasonable, and he must be able to demonstrate that he took the Respondent’s input into account. In addition, the Applicant shall provide the Respondent with copies of their report cards, progress reports and other related documents reporting on the children’s education and extra-curricular activities.

[18] Should the need arise, the Applicant shall provide the Respondent with copies of any medical test results, doctors' notes, or related medical documents, that he may obtain. The reference to doctors includes dentists, orthodontists, and other possible medical supports the children may require.

[19] Finally, the Applicant shall advise the Respondent of the dates for the children's school concerts, graduations, and other school activities that parents would be invited to attend. The Respondent will be permitted to attend same, should she wish, as long as that was not disruptive to the children.

[20] The final order to this trial is to include the contents of paragraphs 13 and 14 included in the draft order filed with the court on this occasion with the following amendments. Specifically, paragraph 14 is to be amended to include costs for the uncontested trial which I fix at $18,500, inclusive of applicable taxes. I rely on Rules 24 and 18(4) to support this award. I have reduced the costs to this sum because the evidence at trial amounted to little more than an updating of where things stood with the Respondent and her continued failure to return the children to this jurisdiction. Counsel supplemented submissions with reference to certain cases analogous to the evidence in this case. But on balance, the "heavy lifting" in this case occurred on the motion before Justice Trimble that resulted in his final and interim orders of January 23, 2023 and May 10, 2023.

[21] The Applicant's "Bill of Costs for the Uncontested Trial" also included fees for "Preparing for Urgent Motion (up to September 2, 2022)," "Preparing for Motion Returnable on September 14, 2022,” and Supplemental Material (up to September 30, 2022), "Managing While Awaiting Endorsement, Supplemental Motion & Costs Submissions up to February 22, 2023", "The Respondent's Appeal / Abandonment of Same and Motion for Enforcement / Penalty up to May 30, 2023)" and "Preparing for Motion to Strike (up to January 17, 2024)". I find these claims perplexing as they ought to have been before Justices Trimble and Daley, who made costs awards in connection with those specific attendances. It would be wrong for me to revisit those costs awards. In these circumstances, my costs award is limited to the activities associated with the uncontested trial.

Conclusion

[22] The Applicant may prepare a final draft order for my review in accordance with the foregoing findings and orders made. Since the trial was uncontested, there is no need for the draft order to be approved as to form and content by the Respondent. Once issued, the Applicant shall serve a copy of the Final Order on the Respondent by e-mail.

[23] I take this opportunity to urge the Respondent, even at this late date, to reconsider her actions. Her continued defiance of this court’s orders is not in the children’s best interests. It is also not in her interests. The sanctions she faces are already harsh. The children’s continued separation from their father is detrimental to everyone.

[24] The Applicant still has the chance to correct her ways and mitigate her jeopardy if she were to allow the children to return to Canada. With the conclusion of the school year, this would be a very good time to do the right thing by the children. If she were able to regain the Applicant’s trust, she might also be able to bring a motion to change the final orders made in this judgment.

Released: June 10, 2025
E. Ria Tzimas