Khoubian v. Khoubian, 2026 ONSC 2173

Court File and Parties

CITATION: Khoubian v. Khoubian, 2026 ONSC 2173

COURT FILE NO.: FS-26-00001175-0000

DATE: 2026-04-13

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Robert Khoubian, Applicant -and- Alona Khoubian, Respondent

BEFORE: Robert Centa J.

COUNSEL: Sherri Moss and Ali Manavi for the applicant Oleksiy Bykov, for the respondent

HEARD: April 9, 2026

Endorsement

1Robert Khoubian and Alona Khoubian are married. They have two children, I (age 10) and R (age 9). The children were born in Canada, but the family moved to Miami from 2021 to 2025. From February 2025 until January 15, 2026, the family lived together in Qingdao, China. On January 15, 2026, Robert moved out of the family’s condominium in Qingdao. On January 30, 2026, Alona moved to Toronto with the children.

2Robert commenced this application seeking, among other relief, a declaration that Alona wrongfully removed the children from China, a declaration that Ontario does not have jurisdiction to make a parenting order under either ss. 22 or 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), and an order that Alona be required to return the children to Qingdao. The matter proceeded before me on the basis of affidavits from each of the parties, a brief in-court cross-examination of Robert, factums, and oral argument.

3For the reasons that follow, I find that the Ontario court does not have jurisdiction under the CLRA, that Alona wrongfully removed the children from Qingdao, China, and that she is required to return the children to their home in Qingdao forthwith.

4Given the urgency of this motion, these reasons will necessarily be brief.¹

1. The applicable framework

5This case is not governed by the Hague Convention because China is not a signatory to that convention.² This application must be decided under the provisions of the CLRA, which provides four bases of jurisdiction to make a parenting order:

a. under s. 22(1)(a), if the child is “habitually resident” in Ontario at the time the application is commenced;

b. under s. 22(1)(b), if not habitually resident in Ontario, the child is physically present in Ontario at the time the application is commenced, and the other requirements of the section are met, including the requirement that no application for custody has been started in another place where the child is habitually resident;

c. under s. 23, if the child is physically present in Ontario and would, on a balance of probabilities, suffer serious harm if removed from Ontario; or,

d. under the court’s parens patriae jurisdiction to protect children, preserved by s. 69.³

6In this case, Alona does not assert that the court has jurisdiction under s. 22(1)(a) because she concedes that the children were not habitually resident in Ontario at the time Robert commenced the application. Alona also does not submit that the court should utilize its parens patriae jurisdiction to protect the children. That means the only possible bases of jurisdiction are s. 22(1)(b) and s. 23 of the CLRA.

7As I interpret and apply the relevant provisions of the CLRA, I will be guided by the overall purposes of Part III of the CLRA:

a. to ensure that custody and access applications will be determined on the basis of the best interests of the children;

b. to avoid the concurrent exercise of jurisdiction by tribunals in different places;

c. to provide that, save in exceptional circumstances, an Ontario court will decline jurisdiction where custody and access are more appropriately determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

d. to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

e. to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of these orders made outside Canada.⁴

2. Physical presence and other requirements: s. 22(1)(b)

8The specific purposes of s. 22 include deterring parties from shopping for a forum to decide their custody dispute and discouraging child abduction.⁵ Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of a child.⁶

9In this case, I am satisfied that Robert did not consent to Alona leaving China with the children. I accept his evidence that Alona did not tell him that on January 12, 2026, she purchased airplane tickets for the children to fly to Canada on January 30, 2026. There are no contemporaneous email or text communications suggesting that Alona told Robert about the purchase of the plane tickets or the plan to depart to Canada. I reject Alona’s evidence that she told Robert about the plan or that any of his email messages to her suggest, in any way, that he knew of or consented to her plan.

10The Supreme Court of Canada has explained how the legislature seeks to discourage child abductions and the wrongful removal of children to Ontario:

Whether or not the dispute involves a country that is a party to the Hague Convention, when a child is wrongfully removed from their habitual residence and brought to Ontario, courts will, as a general rule, decline to exercise jurisdiction over the merits of the custody dispute and order that the child be returned home. This reflects a legislative policy expressed in s. 19 for the whole of Part III of the CLRA. Through this policy, the legislature seeks to discourage child abductions and the wrongful removal and retention of children to Ontario as well as to ensure that parenting matters are determined by the jurisdiction to which the child has a closer connection.⁷

11Except in exceptional circumstances, courts will refrain from exercising jurisdiction and will leave the merits of a dispute to the foreign jurisdiction with which the child has a closer connection. The CLRA presumes that an abducted child’s best interests are aligned with their prompt return to the jurisdiction of their habitual residence, here China, unless there are exceptional circumstances that justify the Ontario courts taking up jurisdiction.

12Clause 22(1)(b) of the CLRA provides the court with jurisdiction to make a parenting order if the child is physically present in Ontario and six other specific requirements are met:

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

(b) the child is not habitually resident in Ontario, but the court is satisfied that,

(i) the child is physically present in Ontario at the commencement of the application for the order,

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

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

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

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

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

13In her factum, Alona devoted only two paragraphs to submissions regarding the court’s jurisdiction under s. 22(1)(b) of the CLRA:

A. Jurisdiction under s. 22 CLRA

39. The Court has jurisdiction under s. 22(1)(b) CLRA because the children are physically present in Ontario, have a real and substantial connection to Ontario, and substantial evidence regarding their best interests is available here.

40. The children's connections to Ontario include:

a. Canadian citizenship;

b. family and social networks;

c. access to education and healthcare;

d. long-term residence planning.

14Robert concedes that the children are physically present in Ontario (s. 22(1)(b)(i)), that no application related to the children is pending before any extra-provincial tribunal (s. 22(1)(b)(iii)), and that no extra-provincial order with respect to the children has been recognized by a court in Ontario (s. 22(1)(b)(iv)). Robert testified that he has retained counsel in China and, on advice of counsel, has not yet commenced a proceeding in China. He undertakes to commence a proceeding in the Chinese courts immediately if this motion is determined in his favour. I rely on this undertaking.

15Robert submits that the children do not have a real and substantial connection to Ontario and that the court should not be satisfied that s. 22(1)(b)(v) has been met. I disagree. The children are both Canadian citizens who each lived in Ontario from birth until early 2021. In my view, the fact that the children are Canadian citizens who lived a meaningful portion of their young lives in Ontario is sufficient to establish a real and substantial connection to the province.⁸ In addition, Robert and Alona continue to own property in Ontario, Robert’s parents live in Ontario, and the children and the family have returned to Ontario for holidays and during the summer break (even if the parties dispute the length and frequency of such visits). I am satisfied that the children maintain a real and substantial connection to the province.

16Robert submits that the court should not be satisfied that substantial evidence concerning the best interest of the children is available in Ontario. I agree.

17Under the CLRA, a court considering the best interests of the child shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.⁹ The statute directs that the factors related to the circumstances of the child include:

a. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d. the history of care of the child;

e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. any plans for the child’s care;

h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i. the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

k. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.¹⁰

18I am not satisfied that there is substantial evidence concerning the best interests of the children in Ontario. The children have not lived in Ontario since 2021. There is no recent evidence in Ontario regarding their schooling, linguistic training, extra-curricular activities, medical or health care, friends and peers. As Robert detailed in his affidavit, all of that evidence from the period 2021 to January 2026 is located in China or Miami, Florida. The children have only been back in Ontario for a little over two months. Robert continues to live in China.

19In her factum, Alona submitted that “Ontario is the only jurisdiction with a sufficient factual and legal basis to determine the issues related the children’s parenting and decision-making.” This statement is a bald conclusion, lacking any proper or current evidentiary basis. It is unsupported by any citation to the record or legal authority. In her affidavit, Alona provided the following evidence:

Substantial evidence about the children's best interests is available in Ontario: The Respondent and the children are now residing in Ontario, where their day-to-day lives, schooling, and medical care are (or will be) centred. Evidence about children's mental and physical health, adjustment, and the history and impact of domestic abuse can be adduced from Canadian health and social service providers, as well as from my testimony and corroborative documentary evidence.

20With respect, this evidence is unsatisfactory. Alona does not identify any evidence that exists today in Ontario that is relevant to the question of the best interests of the children. There is no doubt that if the children remain in Ontario, over time the children will create evidence and records relevant to the determination of their best interests. However, that is not the test that I am to apply to determine whether the Ontario court, today, has jurisdiction over this dispute. Alona provides no evidence that is specific to this case or these children. She does not name any practitioners, professionals, or teachers, who are able to provide evidence at this time about the children. Alona has not pointed to any documentary or objective evidence related to the best interests of the children, or the parenting capacity of the parents, that is located in Ontario. It will always be the case that a parent that wrongfully moves children to Ontario will be able to develop relevant evidence in the future. Given the legislative objective of discouraging the abduction of children, I would not interpret the CLRA to found this court’s jurisdiction on that basis.

21I accept that Alona is present in Ontario and would be able to provide first-hand evidence regarding the best interests of the children. However, I do not give too much weight to that factor. To do otherwise would confer a tactical advantage on parents who wrongfully removed their children to Ontario.

22I also accept that the children are physically present in Ontario and that their views would be a relevant factor to consider in assessing their best interests. However, no admissible evidence of the children’s views was provided to me at this hearing.

23I am not satisfied that there is substantial evidence concerning the best interest of the children is available in Ontario.

24Finally, I am not satisfied that on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. I must weigh the balance of convenience, mindful of the presumption in CLRA that, following an abduction, that the child’s best interests are aligned with their prompt return to the jurisdiction of their habitual residence, here China, unless there are exceptional circumstances that justify the Ontario courts taking up jurisdiction.

25In oral submissions, Alona suggested that the balance of convenience favoured Ontario because of frailties in the Chinese legal system. However, no expert evidence regarding Chinese law was filed on this motion. Foreign law is a fact to be proved by expert evidence.¹¹ I cannot make any findings of fact about the content of Chinese law absent expert evidence.¹² This factor must be neutral in the assessment of the balance of convenience.

26Alona also submitted that the balance of convenience favoured Ontario because the children were not citizens or permanent residences of China. I disagree. The children hold 10-year visas in China, which Alona concedes is their habitual residence. The fact that persons on visas to China have to depart the country temporarily every 60 days is not a significant factor. The uncontradicted evidence is that the children’s school, which is populated with foreign nationals, accommodates this departure cycle in its curriculum and that the family used those windows of time for enriching travel throughout the region. The children’s immigration status is not so uncertain as to justify the court assuming jurisdiction at this time. Indeed, if the children were to lose immigration status and be subject to a deportation order, they would likely be returned to Canada, and an Ontario court might then have jurisdiction.¹³

27For the reasons set out above, I am not satisfied that there is substantial evidence about the best interests of the children in Ontario or that the balance of convenience favours proceeding in Ontario. The court does not have jurisdiction to make a parenting order under s. 22(1)(b) of the CLRA.

3. Serious harm jurisdiction under s. 23 of the CLRA

28Alona also submits that the court has jurisdiction to make a parenting order under s. 23 of the CLRA. Section 23 can override s. 22 where the child is physically present in Ontario, even if the child has been wrongfully brought to Ontario.¹⁴ Section 23 provides as follows:

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

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

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

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

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

(iii) the child is removed from Ontario.

29There is no doubt that the children are physically present in Ontario, so the primary question in this case is whether Alona has proved on a balance of probabilities that the children would suffer serious harm if they are removed from Ontario and returned to China.¹⁵ I must assess the likelihood of future harm and the severity of future harm to the children if they are removed from Ontario.¹⁶

30In her factum, Alona made the following submissions regarding the likelihood of future harm and the severity of future harm to the children:

42. Returning the children to China would expose them to serious harm, including:

a. legal instability due to immigration status;

b. lack of permanent residence rights;

c. disruption of education and care;

d. the absence of any lawful, stable, or supported living arrangement for the children in that jurisdiction.

31In my view, these concerns do not rise to the level of “serious harm” to justify the court assuming jurisdiction to make a parenting order in this case.

32First, both parents were perfectly content to raise their children in Miami and China over the past five years. Robert and Alona are cosmopolitan and comfortable operating in international environments. Their daughter, I, holds Russian, Armenian, and Canadian passports. Their son, R, holds Russian and Canadian passports. Returning the children to China would do nothing more than have the children once again live with the immigration status and residence rights that Robert and Alona accepted for them until the breakdown of the marriage. The children hold 10-year visas and I do not find that their status creates either legal instability or a risk of serious harm.

33Second, the alleged disruption in education and care would not rise to the level of serious harm. Indeed, the reason for the disruption in education care was Alona’s decision to remove the children to Ontario. Returning the children to China will permit them to resume their education at the international school where they had studied since their arrival in China. While there would be some disruption involved in moving the children back to China, I do not think would amount to serious harm for the children.

34Third, there is no evidence to suggest that the children would not have a “lawful, stable, or supported living arrangement” if they return to China. They have an apartment, a school, the prospect of one or more nannies, and their father waiting for them. Moreover, Alona confirmed that if I order the children to return to China, she will return with them. This strongly suggests that the children will continue to benefit from a stable and supported living arrangement.

35During oral submissions, counsel for Alona submitted that the children will suffer serious harm because Robert has been physically violent with Alona in China and he may be so again. In her affidavit, Alona says the following:

45. I [am] deeply concerned that if this court will order the children to go back to China, I will [be] subject to escalating physical, emotional, and or psychological abuse by the applicant in China.

46. The Respondent [sic] controlled financial and immigration aspects of our lives in China, leaving the me [sic] with limited access to protection or independent resource is. Local authorities in China did not offer effective protection or recourse, or the Applicant reasonably believed they would not, given the Applicant's actions and the legal and cultural context.

47. Returning the children to China would re-expose them to the applicant's abusive behavior, either directly or through the impact on me, creating a serious risk of physical and emotional harm. …

48. …I left a situation abuse [sic] in a different country with no safe and effective recourse (Exhibit M).

36In his reply affidavit, Robert denied ever being violent or assaulting Alona. His evidence was not shaken during a brief cross-examination on this topic.

37I accept that physical abuse of Alona would harm the children emotionally or psychologically. However, I cannot find on this record that Robert has committed intimate partner violence toward Alona. In her affidavit, Alona provided no details of the alleged abuse. She did not provide any dates, locations, or descriptions of the alleged assaults. Indeed, she does not even explicitly say in her affidavit that Robert assaulted her.

38I put no weight on Exhibit M to her affidavit. Exhibit M contains four pictures of a woman. Some of the photos appear to show bruises on a woman’s face. Counsel for Alona invited me to conclude that:

a. The photographs are of Alona;

b. The photographs show injuries to Alona;

c. Robert caused these injuries to Alona; and

d. These photographs show injuries Robert caused to Alona in China.

39Even if I accept that Alona is pictured in the photographs, I am not prepared to draw any of the other inferences. Alona could have provided that evidence in her affidavit, but she did not do so. The only evidence Alona provided before marking the photographs as Exhibit M was in paragraph 48 of her affidavit “I left a situation abuse [sic] in a different country with no safe and effective recourse (Exhibit M)”.

40On the strength of the evidence before me, I do not find that Robert physically abused Alona or that she fears that he will be violent. I do not find that the allegations of harm support a risk of psychological harm to the children.¹⁷

41I reach the same conclusion about Alona’s allegations that Robert controlled the financial aspects of their life in a way that amounts to intimate partner violence. Alona’s allegations are devoid of particulars and facts that would allow me to reach that conclusion on the evidence before me. In addition, there is no evidence to explain the nexus between this financial control and the children that would permit me to conclude that such conduct would pose a risk of serious harm to the children.

42As mentioned above, there is no evidence before me from the children. I have no information about their views of any serious harm they may suffer.

43In conclusion, I am not persuaded, on a balance of probabilities, that the children would suffer serious harm if ordered their return to China. Therefore, the court does not have jurisdiction to make a parenting order pursuant to s. 23.

4. Conclusion and orders

44For the reasons set out above, I make the following findings, declarations, and orders:

a. I declare that the children, I and R, have been wrongfully removed by Alona to Ontario;

b. I declare that the court does not have jurisdiction under the Children’s Law Reform Act to make a parenting order with respect to the children I and R;

c. I order that Alona return the children to their home in Qingdao, China, forthwith.

45If the parties encounter any difficulties with the implementation of my decision, they may contact my judicial assistant, Theresa.finelli@ontario.ca, to arrange an urgent case conference.

Robert Centa J.

Footnotes

1. 1Family Law Rules, O. Reg. 114/99, r. 37.2; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 82-89.
2. 2Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (the “Hague Convention”).
3. 3Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 12.
4. 4CLRA, s. 19; Ojeikere, at para. 13.
5. 5Brooks v. Brooks (1998), 1998 7142 (ON CA), 41 O.R. (3d) 191 (C.A.), at pp. 207-8.
6. 6Ojeikere, at para. 16.
7. 7F. v. N., 2022 SCC 51, [2022] 3 S.C.R. 616, at para. 49.
8. 8H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, at paras. 114-18, leave to appeal refused, [2016] S.C.C.A. No. 63.
9. 9CLRA, s. 24(2).
10. 10CLRA, s. 24(3).
11. 11Abraham v. Gallo, 2022 ONCA 874, 476 D.L.R. (4th) 592, at para. 22.
12. 12Das v. George Weston Limited, 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 67, leave to appeal refused, [2019] S.C.C.A. No. 69.
13. 13Jabbaz v. Mouammar (2003), 2003 37565 (ON CA), 171 O.A.C. 102, at paras. 25-28 (C.A.).
14. 14Ojeikere, at para. 39.
15. 15F. v. N., at para. 69, citing Onuoha v. Onuoha, 2021 ONSC 2228, 54 R.F.L. (8th) 1 (Div. Ct.), at para. 23.
16. 16Ojeikere, at para. 62.
17. 17Ojeikere, at para. 69.