Khalifa v. Madian, 2026 ONSC 3781

Court File and Parties

CITATION: Khalifa v. Madian, 2026 ONSC 3781

COURT FILE NO.: FC1065/24

DATE: 2026/06/26

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ebithal Mohamed Abdelmoniem Khalifa, Applicant

AND:

Ahmed Gad Salem Madian, Respondent

BEFORE: T. PRICE J.

COUNSEL: A. Alvim - Counsel for the Applicant

S.A.K. Sunny - Agent (formerly Counsel) for the Respondent

HEARD: June 17, 2026

ENDORSEMENT

Overview

1The parties’ daughter, E., is 5½ years of age.

2On June 17, 2026, with the consent of the parties, I signed a temporary order, two terms of which prohibited both of them from either removing E. from, or travelling with her outside of, Canada, without the prior written consent of the other or an order of the court.

3The sole issue I was asked to decide on this motion is whether, as the consent order contemplated, an order would be made authorizing the Respondent, Mr. Madian, to have E. accompany him to Egypt from July 15 to July 31, 2026.

4If I were to decide that he could, I was also asked to authorize the release by his counsel of E.’s passport, which has been in the possession of Mr. Madian’s counsel since November 2024 pursuant to an interim order.

Background

5The Applicant, Ms. Khalifa, was born in Kuwait. Mr. Madian was born in Egypt. The parties married in Egypt in 2013. They became permanent residents of Canada on May 4, 2019.

6The parties separated in October 2024 when Ms. Khalifa left the matrimonial residence with E. and moved into a shelter.

7Ms. Khalifa commenced this litigation on November 4, 2024. As part of that process, she also brought an ex parte motion requesting the return to her of E. who, she alleged, was being overheld by Mr. Madian. Acknowledging that the evidence before her was “untested,” Justice Sah ordered Mr. Madian to return E. to Ms. Khalifa before 5 p.m. that day, including a police assistance clause in the order should Mr. Madian not comply. He did. The motion was adjourned to November 13, 2024.

8On that date, Justice Raikes set timelines for a cross motion to be brought by Mr. Madian, pending which he was directed to immediately provide E.’s passport to his counsel, who was to retain it pending further order of the court or agreement of the parties. Justice Raikes further directed that Mr. Madian would have E. in his care over the weekend of November 15-18, 2024. He did not order police assistance, citing the assurance of Mr. Madian that the child would be returned, which she was.

9On November 20, 2024, Justice Hebner made an interim without prejudice order, pending a case conference scheduled for January 7, 2025, that the parties would have parenting time with E. on a 2-2-3 schedule. She also continued the requirement set by Justice Raikes that counsel for Mr. Madian hold E.’s passport, and added E.’s birth certificate to the documents to be held by counsel and not released without agreement of the parties or a court order.

10Justice Hebner’s order also included a clause prohibiting either party from applying for travel documents for E.

11That was the status quo when the parties returned to motions court on June 17, 2026.

12There were two motions before the court. The first, brought by Ms. Khalifa, requested an order “preventing” Mr. Madian from travelling with E. to Egypt or any non-Hague¹ country without her consent or a court order.

13Mr. Madian brought a cross-motion seeking permission to travel with E. to Egypt from July 15-30, 2026 and that his counsel be authorized to deliver E.’s passport for the travel, together with the attendant requirement that it be returned to his counsel immediately upon his return to Canada no later than July 31, 2026.

14The rationale for Mr. Madian’s proposed travel to Cairo is a potentially life-threatening deterioration in the health of his 83-year-old mother. He wants to have E. accompany him to “meet” his mother and his family “during this difficult period.” He also cited a “belief” that it is in E.’s best interests to see her 93-year-old grandfather, to strengthen her relationship with his side of the family, and to experience her cultural and family heritage.

15The parties agree that Ms. Khalifa has not given her consent for Mr. Madian to take E. with him to Egypt.

Inadmissible Evidence

16Both parties appended as Exhibits to their affidavits some documents that were not properly before the court. In the case of Ms. Khalifa, it was two pages of a 15-page OCL Clinical Investigator’s report setting out the recommendations of an OCL investigation that had resulted from an order made by Justice Hebner for OCL involvement. While, in some circumstances, an OCL report can be used on a motion, it is for its content rather than its conclusions or recommendations. (Bos v. Bos, 2012 ONSC 3425 at para. 23) Clearly, Ms. Khalifa wanted me to have regard to only the recommendations in the report.

17Mr. Madian attached to his affidavits unsworn letters from third parties, including his employer and a person said to be his mother’s physician in Egypt, commenting on her health. Except for an email from his counsel to former counsel for Ms. Khalifa confirming that she was provided with E.’s birth certificate and passport as directed by Justice Hebner, which counsel assured me was the case, the other unsworn documents of that nature are not admissible on a motion. (LiSanti v. LiSanti, 1990 CanLII 4229 (ON PROVCT), [1990] O.J. No. 3092; Chrisjohn v. Hillier, [2021] O.J. No. 1415)

Evidence of Ms. Khalifa

18In her initial affidavit for the motion, Ms. Khalifa alleged “significant psychological, emotional, financial, sexual and physical abuse” by Mr. Madian. Her affidavit contained several paragraphs in which she described actions or behaviours by Mr. Madian that, she alleged, demonstrated him to be a controlling, abusive, insulting and belittling individual.

19Perhaps tangentially pertinent to these motions, she deposed that, when her father was dying in Egypt, Mr. Madian would not permit her to visit him, claiming affordability issues. However, when his mother later needed surgery, Mr. Madian proposed to travel to see her. When Ms. Khalifa objected, Mr. Madian then agreed that she could also visit her father because E. would also be traveling with them. That would allow E. to visit with Mr. Madian’s mother. As a result, the three of them travelled together to Egypt.

20According to Ms. Khalifa, the years of psychological abuse inflicted by Mr. Madian left her with complex posttraumatic stress disorder and functional neurological disorder, which have hindered her life and ruined her chances for regular employability. None of those conclusions were supported by any objective, third-party evidence.

21Amongst the other allegations made against Mr. Madian in her affidavit, Ms. Khalifa deposed that, during the relationship, he had threatened to send E. to Egypt or the United States, as he has relatives in both countries. She alleged that he is able to work remotely for a company located in the United States, so that where he is located is not an impediment to retaining his job. To reach that conclusion, she dismissed information she said that he had told her during the relationship that he was required to visit a worksite in Mississauga weekly.

22She alleged that the overholding of E. in 2024 came about when she had allowed Mr. Madian to have two hours with the child when she was residing in the shelter, and he refused to return her.

23She noted that Egypt is not a signatory to the Hague Convention. It is also subject to a travel advisory issued by the Government of Canada.

24She also advised that it is her “understanding” that, under Egyptian law, because the parties remain married, Mr. Madian as the husband is granted certain privileges over Ms. Khalifa as his wife, such as controlling her travel to the extent that, if she were to go to Egypt to retrieve a wrongfully withheld E., he could ban her from leaving Egypt. Apart from her “understanding,” there was no evidence before the court as to the state of Egyptian law, other than the agreement of the parties that it is not a signatory to the Hague Convention, which was confirmed from a brief review of the list of signatories to it.

25She deposed that she has great respect and affection for Mr. Madian’s mother and that she would like E. to maintain a meaningful relationship with her. That, she claimed, was already being done through regular contact and video calls.

Additional Requests for Inclusion in the Order Sought by Mr. Madian

26To allay some of Ms. Khalifa’s fears that he would not return E. to Canada, Mr. Madian requested that the court include in the order that he sought requirements that he:

a. provide Ms. Khalifa with a copy of his travel itinerary, including the addresses where E. would be staying while in Egypt;

b. provide Ms. Khalifa with contact information, including both the telephone numbers at which he could be reached during the trip and emergency contact information for one of his family members in Egypt;

c. be required to provide E. with daily telephone and/or video contact with Ms. Khalifa for one hour per day at a time to be agreed upon, failing which it would occur at 6:00 p.m. Cairo time; and

d. be responsible for all travel related expenses.

27He also requested that Ms. Khalifa would be required to execute a travel consent letter within three calendar days of being requested to do so once the order was issued.

Evidence of Mr. Madian

28Mr. Madian strongly denied Ms. Khalifa’s many allegations of him having engaged in abusive, controlling conduct, and painted a portrait of himself as an engaged father whose spouse suffers from mental health issues for which she has sought treatment with his assistance.

29He deposed that about three months after the parties became permanent residents of Canada on May 4, 2019, they travelled to Egypt so that Ms. Khalifa could visit her father who was very ill. She returned to Canada in December 2020. Mr. Madian returned in January 2021.

30Mr. Madian indicated that it was false for Ms. Khalifa to depose that she did not know the whereabouts of E.’s passport and birth certificate, since they had been with his counsel since November 2024, a fact confirmed to one of Ms. Khalifa’s previous lawyers by his counsel as recently as January 2026. Given that, he claimed that it would be impossible for him to travel internationally with E. because he could not have obtained the documents without Ms. Khalifa’s agreement or a court order.

31He also denied ever having overheld E. He claimed that Justice Sah’s initial ex parte order was based on information which was both false and which failed to fully disclose material information about Ms. Khalifa’s mental health.

32He alleged that after having removed E. from the matrimonial home without his knowledge or consent, Ms. Khalifa then prevented him from seeing or speaking with E. for 24 days despite his repeated efforts to contact and obtain information about her well-being. He deposed that he had encountered a highly distressed Ms. Khalifa, accompanied by E., near the shelter. She told him to take E. and leave. While he claimed that he intended to return E., he also wanted to try to persuade Ms. Khalifa to return to the relationship in the hope it could be salvaged. He deposed that shelter staff instructed him not to contact Ms. Khalifa directly. When he told the staff of his concerns for E.’s care and that he intended to continue to care for her given what he observed about Ms. Khalifa, he claims that he was told by unnamed shelter staff that, because there was no custody order in place, he could retain E. in his care. It is that set of circumstances that, he deposed, led him to continue to care for E. until he was served with Justice Sah’s order for her return to Ms. Khalifa. These facts, he noted, were set out in an affidavit sworn by him on November 10, 2024, which means that it was likely before Justice Raikes and was definitely before Justice Hebner.

33He deposed that the parties had been participating in mediation since February 9, 2026, and that one of the issues discussed at length was his proposal to travel with E. to Egypt. He called Ms. Khalifa’s motion “unexpected” and indicated that it was brought without any discussion about any of the issues raised therein with him. He claimed that he scheduled the travel specifically at the request of the mediator, who was preparing a travel consent form for execution by the parties and needed the dates to insert in the document. He provided evidence by way of emails sent to the mediator supporting these statements.²

34He further deposed that the mediator had told him that Ms. Khalifa had reviewed the airline tickets and the travel consent form and had provided feedback which resulted in the mediator telling him that Ms. Khalifa was satisfied with his the responses to the point that she requested that he also take E. to visit her side of the family while in Egypt, which he said he was still agreeable to doing.³

35In response to the evidence of Ms. Khalifa that he had scheduled the flights without consulting her, he noted that all communications regarding travel arrangements were being conducted through the mediator who, he deposed, despite agreeing to provide written confirmation that what Mr. Madian was to inform the court was accurate, had not done so. As to that, he could only depose to his belief that the mediator chose not to become involved in the ongoing litigation. While that may be correct, it leaves unanswered why he would not want to be involved. Was it to maintain neutrality or was it because he would not have reported to the court the same information as Mr. Madian? I do not know and cannot speculate about the reason for his silence.

36Mr. Madian also pointed out that nothing in the evidence about his employment or travel history supported any inference that he intended to relocate from Ontario or to remove E. from the jurisdiction.

37He reported that the corporation for which he works is a Canadian subsidiary of a company headquartered in the United Kingdom. Agreeing that he does work remotely, he indicated that he is required to attend the Mississauga office one day per week. He claimed that he maintained stable employment and has significant ties to Ontario.

38He also denied that he ever threatened to send E. to either the United States or Egypt and claims that the allegation is but another false, unsupported and unfounded allegation made against him in the proceeding. Acknowledging that he occasionally discussed with Ms. Khalifa various employment and relocation opportunities, including to both the United States and Egypt, during the marriage, he deposed that those discussions occurred in the context of possible career changes, employment opportunities, and family considerations, all of the type of discussions many families have when considering their future. He denied that such discussions supported any inference that he intended or currently intends to remove E. from Canada or retain her outside Canada. He also notes that his circumstances today are materially different from when he raised those points in discussion.

39As for Ms. Khalifa’s references to the privileges he holds against her as her spouse under Egyptian law, he offered to provide her with a formal letter terminating their religious marriage which, he claimed, could be used by Ms. Khalifa in Egypt to prove that the parties were no longer married. He provided no evidence as to the legal validity of his assertion.

40Mr. Madian also denied the allegation that he was using his parents as an excuse to take E. out of Canada. Specifically, he deposed, “my mother’s heart disease is critical and life-threatening. Multiple heart valves are severely damaged, her heart is under significant strain and she faces elevated risk of life-threatening cardiac events.” In those circumstances, he deposed that the proposed trip is intended “to allow E. a need to visit my critically ill mother and spend time with our extended family before returning to Canada.”

41As to Ms. Khalifa’s concern that he will not return E. to Canada, he noted that he is a law-abiding citizen, does not have a criminal record, and has never committed any crimes. He further claimed that he had complied with all court orders in this matter and that he had consistently exercised his parenting time in accordance with existing arrangements.

42He claimed that there was no evidence of him taking steps that would suggest an intention to remove E. from Canada permanently. He claimed his ties to Canada were substantial, with his life, employment, homeownership and ongoing responsibilities all being in Canada. He denied having any motivation or intention to destroy his life, career or financial ties to Canada nor to do so with respect to E.’s life. He said that he fully intended to return with E. at the conclusion of the trip.

43As for the Government travel advisory regarding Egypt on which Ms. Khalifa is relying, he noted that the same advisory was in effect when the parties travelled to Egypt together with E. between July 25 and August 15, 2022, December 28, 2022 to January 14, 2023, and May 4 to 20, 2024. He provided archived copies of those advisories.

44He further noted that he would be staying in Cairo, where he grew up and that the level of concern in the travel advisory was lower for Cairo than it was for other parts of the country.

Reply Evidence of Ms. Khalifa

45She acknowledged that the parties had been engaged in mediation after she commenced her application and that, during the mediation, Mr. Madian told her that he had purchased airline tickets for him and E. to travel to Egypt between July 15 and July 31, 2026 because of his mother’s extreme illness and that he wanted E. to visit with her for what would likely be the last time before her death. She had not agreed to him purchasing the airline tickets.

46She indicated that she had told the mediator that she did not wish to deny the travel request outright but needed time to research the legal and safety implications of allowing it to occur and to obtain assurances regarding E.’s return to Canada. It was her research which indicated that obtaining meaningful guarantees of a child’s return would be extremely difficult without pursuing legal remedies in Egypt, something she could not financially afford to do because she would be required to go to Egypt to pursue those remedies.

47She deposed that regardless of communications between Mr. Madian and the mediator, she never confirmed or agreed with the proposed dates or with the information allegedly given by the mediator that Mr. Madian could purchase the tickets. She pointed out that he did not need to purchase the tickets to provide dates for a draft travel consent form. He simply could have researched available travel dates and provided them. Her view was that he purchased the tickets in order to pressure her into allowing E. to travel.

48Despite the orders of Justices Raikes and Hebner, in her initial affidavit Ms. Khalifa had deposed that she had no idea where E.’s birth certificate and passports were located. When her initial assertion was challenged by Mr. Madian and it was established that they were in the possession of his lawyer, as ordered by Justice Hebner, she pointed to her having twice changed lawyers and not having been told by anyone that the order of Justice Hebner had been complied with by Mr. Madian. She is not using the same lawyer that she was in January 2026.

49Her reply affidavit raised other issues for the first time, which are not admissible, and she engaged in bald speculation about other possible eventualities for which there was no evidence before the court.

Analysis

50At this time, Mr. Madian has yet to file his Answer. He has until July 31, 2026 to do so.

51Ms. Khalifa brought her application for decision-making responsibility and primary residence of E. under the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (hereinafter, the CLRA). It is, therefore, the applicable legislation under which the analysis of the parties’ motion must be undertaken.

52Because the focus of the motion before the court is whether or not E. accompanies Mr. Madian to Egypt, any order that I make in that regard must only take into account her best interests. (CLRA, s. 24(1)).

53Additionally, while I am mandated to consider, in determining E.’s best interests, all factors related to her circumstances, my primary consideration must be her physical, emotional and psychological safety, security and well-being. (CLRA, s. 24(2)).

54While Ms. Khalifa speculated about a number of negative consequences that could result if Mr. Madian were permitted to have access to E.’s birth certificate and passport, in my view the following claims are most relevant for me to consider in making my determination about what order to make in E.’s best interests:

1. Egypt is not a signatory to the Hague Convention;
2. the government of Canada has issued a travel advisory regarding travel to Egypt;
3. Mr. Madian’s mother is seriously ill and a trip to Egypt will afford E. an opportunity to spend time with her before she might die;
4. a trip to Egypt will afford E. an opportunity to meet members of her extended paternal family and be exposed to her heritage and culture; and
5. the status of this litigation combined with Mr. Madian’s purchase of a return flight airline ticket for E. without the consent of Ms. Khalifa and in apparent contravention of the order of Justice Hebner dated November 20, 2024.

Egypt is not a signatory to the Hague Convention

55The reason that this is an issue was explained by the Ontario Court of Appeal in Geliedan v. Rawdah, 2020 ONCA 254 as follows:

37 The fact that a state that is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. A party to the Hague Convention agrees to follow the reciprocal obligations in the Convention, and warrant that they are "[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody." Given the paramountcy of the child's best interests in custody and access decisions under the CLRA, the warranty that Hague Convention signatories also treat the best interests of children as of supreme importance is critical.

56However, the fact that a country is not a signatory to the Hague Convention is not an issue on which a motion such as this can solely be determined. It has been held that, absent evidence that there is some possibility that the child might not be returned to Canada, the fact that a country is not a signatory to the Hague Convention, while presenting a plausible risk for a court to consider when weighing whether to permit a parent to travel with a child to such a country, is not determinative of the issue when assessing the parent’s request for such travel. (Badar v. Danish, [2024] O.J. No. 3262⁴; Johnson v. Johnson, [1996] O.J. No. 490 (Ont. Ct., Gen. Div.)).

Canadian Government Travel Advisory Regarding Egypt

57While the travel advisory issued by the Government of Canda on June 2, 2026 cautions that travellers to Cairo should exercise “a high degree of caution…due to ongoing tensions in the region, the unpredictable security situation and the threat of terrorism,” I note that Mr. Madian was born in Egypt and spent most of his life there, according to his evidence. He undoubtedly possesses a much greater knowledge of and ability to navigate the political and civil situations in Egypt than someone who may never have been to Egypt. In that sense, he is a “local,” not a stranger from abroad.

58Moreover, as he pointed out, similar travel advisories suggesting that travellers to Egypt exercise a high degree of caution “due to the unpredictable security situation and the threat of terrorism” were in place during the couple’s earlier travels to Egypt, yet they did not deter Ms. Khalifa from travelling there with Mr. Madian and E. The only difference is that the current advisory includes reference to “ongoing tensions in the region,” which could relate either to the situation in Gaza or the recently paused war between Iran and the United States, or both.

59I find the following comment articulated by Justice R.J. Spence in Hamid v. Mahmood, [2012] O.J. No. 3398 (O.C.J.) to be relevant to this issue:

29 I accept that the mother is sincere in all she has stated. I accept the genuineness of her expression that she would not knowingly place the children in danger. However, danger - whether it emanates from crime, terrorist attacks or other sources, by its very nature makes victims of similarly like-minded persons, specifically, persons who would not knowingly place themselves in threatening situations. It is a truism that no one walks along a street knowing that a terrorist bomb is about to explode nearby; no one drives a car knowing it is about to be carjacked; no one would go to any location knowing in advance, they might be kidnapped, assaulted or terrorised in that location. Yet people - ultimately victims - do these things unwittingly, and these terrible events do occur.

60While this factor is not determinative of this matter, it, like the fact that Egypt is a non-Hague country, must be considered in my overall assessment of whether the proposed travel is in E.’s best interests.

Mr. Madian’s mother is seriously ill and a trip to Egypt will afford E. an opportunity to spend time with her before she might die

61When determining E.’s best interests, s. 24(3) of the CLRA requires that I consider “the nature and strength of the child’s relationship with…grandparents and any other person who plays an important role in the child’s life.”

62As noted earlier, the evidence indicates that E. travelled with her parents to Egypt between July 25 and August 15, 2022, December 28, 2022 to January 14, 2023, and May 4 to 20, 2024. I was not informed whether, during any of those trips, E. had contact with her paternal grandparents, although it is not unreasonable to infer that she probably did.

63In her life of 5 ½ years, therefore, at most, she has had in-person contact with her paternal grandparents for parts of, at most, 54 days. The initial trip occurred when she was 17 months of age. She would have been approximately 21 months of age during her second trip, and 27 months of age during her last trip.

64She has also been having regular contact with her grandmother by telephone and video calls. although the frequency or duration of such contacts, or when they began, is not particularized.

65In Ndju v. Fort, [2011] O.J. No. 1278 (S.C.J.), Justice P.B. Annis found that a trip to Haiti by a 23-month-old child to allow “her dying grandmother to see her granddaughter before she passes on, while of obvious significant emotional benefit to the grandmother and the mother, [would] do little to mark a child of such tender years. The trip is essentially made in the interests of the grandmother and the mother and not the infant.”

66If, as did Justice Annis in Ndju v. Fort, I discount as meaningful contributors to a relationship between E. and her grandmother the three trips to Egypt referred to earlier that all occurred when she was younger than 28 months of age, it seems obvious that whatever relationship E. might now have with her grandmother would have begun to be of any significance to her during their telephone and video calls of more recent occurrence, as her level of awareness has increased.

67In that circumstance, I question how it could possibly be in E.’s best interests to travel on two flights totalling 13 hours (including a one-hour stopover), to visit a relative she has come to know only by means of electronic communications, just to see that relative so sick that she might soon die. I suspect that the encounter might be traumatic for her. It would undoubtedly be worse for her were her grandmother to die or suffer a serious medical setback while she is present.

68I find that for E. to be in the physical presence of her very ill grandmother for periods of time over the two weeks that she would be in Cairo would be directly contrary and potentially harmful to her emotional and psychological safety, security and well-being.

A trip to Egypt will afford E. an opportunity to meet members of her extended paternal family and be exposed to her heritage and culture

69Apart from his parents, Mr. Madian did not identify any other person in E.’s extended paternal family who he would want her to meet while in Egypt. No mention was made of any member of the extended family with whom E. has any familiarity, including any children. While he did refer to his sister, it was only in the context of information she had passed to him about their mother’s health.

70As I was informed during argument on the motion, Mr. Madian’s plan is to spend time visiting with his mother and members of his family. Their focus is likely to be on his mother’s condition. Given her health, the emotional atmosphere of such meetings is likely to be one of sadness. I was not provided with any evidence about how E. meeting members of her extended paternal family in such an atmosphere is likely to benefit her, nor do I conclude that it would.

71I further find that for E. to spend two weeks with members of her extended paternal family who appear to be virtual strangers to her, in an atmosphere of sadness, grief and concern, would also be directly contrary and potentially harmful to her emotional and psychological safety, security and well-being.

72Given her age, E. will likely have many years ahead of her to meet and get to know members of her extended paternal family in much happier circumstances.

73As for exposure to her heritage and culture, it was not made clear to me when this would occur. Asked if Mr. Madian intended to do any “sight-seeing” on the trip, I was informed by his counsel that he had no such plan, which is hardly surprising, given the purpose of his trip. In that circumstance, I am left to wonder to what extent, if at all, E. would have any opportunity to learn about her Egyptian heritage and culture, other than through an exposure to the customs and traditions relating to death and funerals should her grandmother die while she is in Egypt with her father.

74When raising this rationale for E. accompanying him to Egypt, Mr. Madian deposed that E. “is now at an age where she is able to meaningfully experience international travel, learn about her cultural heritage, and develop relationships with members of her extended family,” a conclusory statement lacking any explanation about what it is about her at this age that now equips her to “meaningfully experience” international travel and no examples of Egyptian cultural heritage to which she would be exposed while in his care.

75In Mahadevan v. Shankar, 2010 ONSC 5608, Justice Pazaratz was faced with a request by a father to take his four-year-old son to India, a non-Hague country, for a month-long vacation. One of the benefits of the proposed trip was said to be the opportunity for the child to visit extended family on the father's side (some of whom he had never met) and to experience Indian culture, about which Justice Pazaratz commented, at paragraph 11, that “[o]n the surface, there is much to be said for the Respondent's proposal.”

76He continued, however, in paragraph 12, writing that “[t]he real issue is not the extent of the benefit, but rather the nature and extent of the risk: the risk that despite the Respondent's assurances, the child might not be returned voluntarily. And the risk that the Applicant might not be able to do anything to get her son back.”⁵

77This comment connects the discussions under the previous claims in support of or against Mr. Madian’s proposal with the next one.

The status of this litigation combined with Mr. Madian’s purchase of a return flight airline ticket for E. without the consent of Ms. Khalifa and in apparent contravention of the order of Justice Hebner dated November 20, 2024

78As is apparent from the affidavits, the parties espouse very different views of their marital and post-separation relationship.

79Although the litigation was started over 18 months ago, because of changes of solicitor for Ms. Khalifa and a delay in amending her application, Mr. Madian has yet to file his Answer, which he must do by July 31, 2026.

80As Justice A.P. Ramsay wrote in her Reasons on the motion in Badar v. Danish, supra:

32 The courts have recognized that once a party travels to a country that is not a signatory to the Hague Convention, there may be little incentive to return the child to Ontario, especially while parenting issues are still being disputed….

81The evidence of Mr. Madian in support of his return to Canada is not insignificant. However, I do have concerns about how the purchase of E.’s airline ticket came about.

82As I noted, the mediator through whom the parties were negotiating the issue of Mr. Madian’s proposed travel with E. failed not only to follow through on his reported agreement to sign an affidavit verifying Mr. Madian’s version of the timing of his purchase of an airline ticket for E., he did not even indicate to either Mr. Madian or his counsel that he was reneging on his undertaking. His ambiguous silence leaves me with only Mr. Madian’s version of their discussions. Consequently, because of that ambiguous silence, I am unable to assess the veracity of what Mr. Madian has told me.

83Even if I were inclined to accept Mr. Madian’s evidence on that point without issue, it does not detract from Ms. Khalifa’s evidence that she did not agree to his purchase of a ticket for E.

84It is that objection, and the lack of prior occasions where she agreed to Mr. Madian travelling alone with E. to a non-Hague country that distinguished the case of Gare v. El Nashar, [2018] O.J. No. 501 (S.C.J.), on which Mr. Madian’s agent relied.

85Above that, however, I am particularly concerned that Mr. Madian’s purchase of E.’s airline ticket appears to have placed him in contravention of the term in the interim order of Justice Hebner dated November 20, 2024 which prohibited either party from applying for travel documents for E.

86Does the order prohibit the purchase of an airline ticket in E.’s name? Is there a difference between purchasing something and applying for that thing? Is an airline ticket even a travel document? It was certainly suggested by the Federal Court in Canada (Minister of Citizenship and Immigration) v. Gill, [2003] F.C.J. No. 1819 that an airline ticket is a travel document. In Hoghooghi v. Advanced Travel and Tours Ltd., [2013] B.C.J. No. 2895A (B.C. Prov. Ct.) an airline e-ticket was found to be a travel document.

87Whatever the answer to that question may be, I find that the intention of Justice Hebner’s order was to prevent any steps being taken by either party toward removing E. from Canada. Accordingly, Mr. Madian’s purchase of an airline ticket in E.’s name was, at the very least, done in contravention of what Justice Hebner’s order intended to prevent.

88The contravention may have occurred quite innocently. It is entirely possible that Mr. Madian forgot about that term of Justice Hebner’s order. On the other hand, perhaps he was aware of it and simply made no mention of it to either the mediator or on the motion. I cannot determine the answer to that issue on the evidence before me.

89Therefore, what I am left with is a situation where, over the objection of Ms. Khalifa and in contravention of what Justice Hebner’s order intended to avoid, whether intentional or not, Mr. Madian purchased an airline ticket for E. to travel with him to Cairo between July 15 and 31, 2026.

90A probable contravention of a court order cannot simply be ignored or waived away, especially when the contravention is in furtherance of the travel of a child from Canada to a non-Hague country in the face of opposition by the child’s other parent.

91It is clear that Mr. Madian’s overarching purpose in wanting to travel with E. is to have her see her grandmother one last time.

92I ask: what if Mr. Madian’s mother were to die on July 30, 2026? Would he keep E. with him in Cairo until he returns following a funeral? What would Ms. Khalifa think when he contacted her at the last minute to advise that travel has been delayed because of his mother’s death?

93These potential problems, and Mr. Madian’s contravention of the intent of Justice Hebner’s order are best addressed by having E. remain in Canada.

94In the result, and having regard to all matters considered, I find that, even though E. is older than the child in Ndju v. Fort, Mr. Madian’s overarching purpose for wanting E. to travel with him to Egypt is not sufficient to approve the trip that he seeks. As did Justice Annis, I find that a journey by E. to Egypt to see her seriously ill, dying grandmother, would “essentially be made in the interests” of Mr. Madian rather than the best interests of E.

Order:

1. The motion of the Respondent, Mr. Madian, is dismissed.
2. The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the London Family Court Judicial Assistants.
3. The parties’ costs submissions shall not exceed five typewritten pages in Times New Roman 12-point font, with double spacing. They shall be accompanied by any offers to settle, whether accepted or not, together with a list of all persons who worked on the matter for whom a claim for costs is being made, their position, the amount being sought for costs in respect of that person, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.
4. Each party shall also advise the amount of costs that their client should be required to pay to the other party should the other party be found to have been the successful party on the motion.
5. The submissions of the parties are to be served and forwarded to the London Family Court Judicial Assistants by no later than 21 days from the date that this judgment is released to them.
6. Should either party wish to respond to the written costs submissions of the other, each such party shall serve and forward their responding submissions to the London Family Court Judicial Assistants by no later than 35 days from the date that this judgment is released to them.
7. If no costs submissions are received from at least one of the parties by the date that is 21 days from the date that this judgment is released to the parties, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no costs order relating to these motions shall thereafter be made.

Footnotes

1. 1The Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("the Hague Convention")
2. 2Those earlier emails, attached as exhibits to his affidavits, constitute prior consistent statements, which are presumptively inadmissible in evidence. (Zunnerain v. Chowdhury, [2024] O.J. No. 4563 at para. 237; Barreto v. Salema, [2024] O.J. No. 4733 at para. 279-280) None of the exceptions noted therein apply in this case.
3. 3This evidence is also hearsay since Ms. Khalifa denies it.
4. 4While the travel request was denied on a motion, it was later granted following a trial, subject to certain conditions: Badar v. Danish, [2026] O.J. No. 45 (S.C.J.).
5. 5Justice Pazaratz also noted that there were other cases that came to different conclusions, but in each the children were older than E. In one case they were 15 and 11 years of age. In another , they were 13 and 10 years of age. In a third, the child was 10 years of age.