



COURT OF APPEAL FOR ONTARIO

CITATION: Zafar v. Saiyid, 2017 ONCA 919

DATE: 20171128

DOCKET: M48523 (C64581)

Hourigan J.A. (In Chambers)

BETWEEN

Mahmud Zafar

Applicant

(Respondent in the Appeal)

and

Qurratul Ain Saiyid

Respondent

(Appellant in the Appeal)

Anser Farooq, for the respondent

Robert McQueen, for the applicant

Heard and released orally: November 27,
    2017

REASONS FOR
    DECISION

Introduction

[1]

The appellant moves for a stay of the order of the application judge
    dated November 7, 2017. The respondent brings a crossmotion to dismiss the
    appeal.

Background

[2]

The parties were married on March 9, 2007 and have two children, A, aged
    5 and N, aged 1 1/2. Both children were born in London, England.

[3]

In May 2016, the appellant took a trip with the children to Canada with
    the consent of the respondent. The trip was to last from May 8, 2016 to August
    1, 2016. She communicated with the respondent while in Canada about extending
    the trip to September 11, 2016. The respondent was agreeable to an extension.

[4]

On August 23, 2016, the appellant telephoned the respondent and told him
    that their marriage was over and she was not returning the children to England.

[5]

The respondent brought an application pursuant to the
Convention on
    the Civil Aspects of International Child Abduction
, 25 October 1980,
    C.T.S. 1983/35; 19 I.L.M 1501 (the
Hague Convention
)
as incorporated in s. 46(2) of the
Childrens
    Law Reform Act
, RSO 1990, c. C,12 for the children to be immediately
    returned to London, England.

[6]

The appellant opposed the order on various grounds. She conceded many of
    her arguments before the application judge. In particular, she conceded that
    the habitual residence of the children was England.

[7]

In reasons dated September 13, 2017, the application judge rejected the
    appellants argument that the respondent had acquiesced to the removal of the
    children. The application judge also did not accede to her argument that the
    children would be exposed to a grave risk of harm by the respondent if they
    were returned to England. On that issue, he found that any concerns regarding
    the respondents alleged misconduct could be dealt with in England and it would
    not be intolerable to order A and N (and, implicitly, Ms. Saiyid) back to
    their habitual residence.

[8]

The application judge granted the application: For the above reasons,
    Mr. Zafars
Hague
application is allowed. The correct jurisdiction to
    hear any custody and access issues is London, England. Ms. Saiyid and the
    children must return there to deal with these issues.

[9]

In those reasons, he directed the parties that if they could not agree
    upon the necessary orders and undertakings for the childrens return to England
    then he could be spoken to.

[10]

A
    notice of appeal was not filed in time with respect to the September 13, 2017
    order. The parties were unable to agree to arrangements for the return of the
    children and made further submissions to the application judge.

[11]

On
    November 7, 2017, the application judge made a further order regarding the
    undertakings and arrangements for the return of the children. He ordered:

Until further order
    by the British Court, I therefore order:

a)

Dr.
    Zafar shall provide Ms. Saiyid and the children with exclusive possession of
    the matrimonial home municipally known as 396B Baring Road, London, England,
    Se12 0EF.

b)

Dr.
    Zafar shall pay the monthly rent for the home and all the monthly utilities and
    council tax.

c)

On a
    without prejudice basis, Dr. Zafar shall pay £225 GBP per week for the support
    of the children and Ms. Saiyid.

d)

Should
    Ms. Saiyid fail to return the children to London, England by December 1, 2017;


I.

Dr.
    Zafar shall have sole custody of the children and Dr. Zafar shall be permitted
    to return to England with the children.


II.

All
    local, provincial, federal, international police and all law enforcement
    officials to whose attention this order is brought shall assist, if required,
    in locating, apprehending and delivering the children to Dr. Zafar or to a
    person authorized on his behalf.


III.

This
    order shall be in force until June 1, 2018 unless extended by further court
    order.


IV.

For
    the purpose of locating and apprehending the children in accordance with this
    order, a sheriff or police officer may enter and search any place where he or
    she has reasonable and probable grounds for believing the children may be, with
    such assistance and such force as are reasonable in the circumstances at any
    time during the day.


V.

Ms.
    Saiyid shall deliver up forthwith to Dr. Zafar or his lawyer, Robert K.
    McQueen, the originals of the childrens passports, Social Security cards and
    birth certificates.

e)

Once
    the children are returned to London, England, Ms. Saiyid shall not remove the children
    from that jurisdiction without the written consent of Dr. Zafar or an order of
    the English Court.

f)

If
    Ms. Saiyid returns with the children forthwith to London, England, Dr. Zafar
    shall not remove the children from England.

Analysis

(a)

Cross-Motion

[12]

The
    respondent submits that the appeal should be dismissed because the September
    order was a final order and it was not appealed in time. He further submits
    that the November order is an interlocutory order and that the appellant should
    seek leave to appeal that order in the Divisional Court.

[13]

I
    disagree. In my view, the two sets of reasons amount to one order. The
    September reasons ordered that the children be returned to England. The
    application judge stated that he could add to those reasons and provide for a
    process to send the children home. He chose not to, instead directing the
    parties to work out the details and, failing agreement, to make further
    submissions.

[14]

In
    my view, the two sets of reasons amounted to one final order and the appellant
    appealed within the timeframe provided for in the
Rules of Civil Procedure
R.R.O. 1990, Reg. 194
. The cross-motion
    is dismissed.

(b)

Stay

(i)

Orders to be considered

[15]

The
    appellant submits that the application judge made several errors in his legal and
    factual analysis. She argues, for example, that the application judge had no
    authority to order her return to England. It is not clear from the reasons
    whether the application judge was actually ordering the appellant to England
    or, as he indicated earlier in his reasons, only implicitly making such an
    order. The appellant also submits that the trial judge did not have the
    authority to order a change in custody if the children were not returned by the
    deadline.

[16]

For
    the purposes of my analysis, I will assume that the application judge made an
    order for the appellants return to England. I will consider below whether the
    order for the return of the children and/or the order for the return of the
    appellant should be stayed. I will also consider whether the order potentially
    changing custody should be stayed.

(ii)

General Principles

[17]

The
    test for staying an order pending appeal under r. 63.02 of the
Rules of
    Civil Procedure
, requires the court to consider the following factors: (1)
    a preliminary assessment must be made of the merits of the case to ensure that
    there is a serious question to be tried; (2) it must be determined whether the
    applicant would suffer irreparable harm if the application were refused; and
    (3) an assessment must be made as to which of the parties would suffer greater
    harm from the granting or refusal of the remedy pending a decision on the
    merits:
Circuit World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674
    (C.A. [In Chambers]), at para. 8;
Warren Woods Land Corp. v. 1636891
    Ontario Inc.
, 2012 ONCA 12 [In Chambers], at para. 1.

[18]

These
    three factors are not watertight compartments; the strength of one may
    compensate for the weakness of another. The overarching consideration is
    whether the interests of justice call for a stay:
International Corona
    Resources Ltd. v. LAC Minerals Ltd.
(1986), 21 C.P.C. (2d) 252 (Ont.
    C.A.);
Longley v. Canada (Attorney General)
, 2007 ONCA 149, 223 O.A.C.
    102 [In Chambers], at paras. 14-15.

(iii)

Order for the Return of the Children

[19]

Turning
    first to whether there is a serious question to be tried, it must be emphasized
    that this is a low threshold. It is evident from a review of the reasons of the
    application judge that the appellant abandoned many of her arguments during the
    course of the application. Her primary submission now is that the application
    judge failed to properly consider her argument about intolerable circumstances.

[20]

While
    I would not categorize her appeal as strong, it does pass the serious issue to
    be determined threshold. This factor militates in favour of a stay.

[21]

With
    regard to irreparable harm, I am not satisfied that the appellant has met her
    onus. The primary arguments asserted by the appellant on this issue are that
    without a stay the status quo would be altered, that her relationship with the
    children would be ruptured, and the children would be subjected to harm.

[22]

The
    purported status quo of the children remaining in Canada, which is not their
    habitual residence, was a situation that the appellant engineered and should
    not be continued by this court absent good reason. I am not satisfied that
    there is any such good reason. Nor am I am satisfied that the appellants
    relationship with her children will suffer. There is every reason to believe
    that she can continue her relationship with her children in their habitual
    residence. With respect to her safety concerns, I agree with the assessment of
    the application judge that those issues can be dealt with expeditiously in
    England.

[23]

On
    the issue of irreparable harm, I adopt the analysis of Benotto J.A. in
Balev
    v. Baggott
, 2016 ONCA 996 at para. 33:

There is no irreparable harm if the children are returned.
    There is greater harm being done to the children by delaying the determination
    of custody. Applications pursuant to the Hague Convention are to be dealt with
    expeditiously. Continuing delays frustrate the purpose of the legislation,
    favour the non-complying parent, and postpone the determination of the
    childrens best interests in the country where they are habitually resident.

[24]

With
    regard to the balance of convenience, the appellant submits again that the
    status quo should not be disturbed, the father has no plan of care, and that
    the appeal would be rendered moot if a stay is not granted.

[25]

I
    reject the status quo argument for the same reasons given above. Any issue re a
    plan of care can be dealt with by the English courts.

[26]

With
    regard to the mootness point, I adopt the reasons of Roberts C.J. of the United
    States Supreme Court in
Chafin v. Chafin
(2012), 133 S.Ct. 1017, at p.
    1027, as quoted in
Balev
in para. 35:

In cases in which a stay would not be granted but for the
    prospect of mootness, a child would lose precious months when she could have
    been readjusting to life in her country of habitual residence, even though the
    appeal has little chance of success. Such routine stays due to mootness would
    be likely but would conflict with the
Conventions mandate of prompt return
    to a childs country of habitual residence
. [Emphasis added.]

[27]

The
    balance of convenience favours the respondent.

[28]

In
    balancing all of the factors, I am of the view that a stay should not be
    granted. There is a serious issue to be tried, but the appellant will not
    suffer irreparable harm if the stay is not granted, and the balance of
    convenience also does not favour a stay. This is a situation where the court
    must follow its mandate of ensuring that
Hague Convention
cases are
    dealt with expeditiously by ensuring prompt return of children to their
    habitual residence.

[29]

The
    motion for an order staying the order for the return of the children to England
    is dismissed.

(iv)

Order for the Return of the Appellant

[30]

As
    stated above, it is not clear to me that the application judge intended to
    order the appellant to return to England. No formal orders were provided by the
    parties, so I must govern myself by what is in the reasons.

[31]

If
    such an order was made, there is good reason to doubt its correctness. The
    court would appear to be without jurisdiction to make such an order and it
    would raise serious constitutional concerns.

[32]

The
    appellant would suffer irreparable harm if she were effectively ordered out of
    Canada to a country where she does not hold citizenship.

[33]

The
    balance of convenience would also clearly favour the appellant as she could
    suffer real prejudice if she is ordered out of Canada against her wishes.

[34]

A
    balancing of the factors and the justice of the case favours granting a stay of
    this part of the application judges reasons.

[35]

An
    order will go staying that portion of the application judges reasons that
    ordered the appellant to return to England.

(v)

Order for a Change in Custody

[36]

The
    application judge ordered that if the appellant did not return the children to
    England by December 1, 2017, the respondent shall have sole custody of the
    children and the respondent shall be permitted to return to England with the
    children.

[37]

I
    agree with the submission of the appellant that there is good reason to doubt
    the correctness of an order changing custody. That is, of course, a matter to
    be determined in England. Such an order would also appear to violate article 16
    of the
Hague Convention
.

[38]

The
    appellant may suffer irreparable harm if an order is made in Canada changing
    custody of the children, as it could adversely impact her position before the
    English courts.

[39]

The
    balance of convenience also favours the appellant. Such an order significantly
    changes the status quo in terms of the parties having custody issues
    determined by the English courts.

[40]

The
    justice of the case favours a stay of that portion of the order awarding custody
    of the children to the respondent if the appellant does not return them to
    England. A stay will issue with respect to that part of the application judges
    reasons. To be clear the order remains extant with respect to all other parts
    of the order for the return of the children, including, but not limited to, an
    order that the children be returned to England by December 1, 2017, failing
    which the respondent is permitted to return the children to England.

Disposition

[41]

The
    cross-motion is dismissed. A stay will go with respect to those portions of the
    application judges reasons that purport to order the appellant to return to
    England and to award the respondent custody of the children if they are not
    returned to England by the appellant by December 1, 2017. The stay motion is
    otherwise dismissed.

[42]

There
    was mixed success on the motion and cross-motion. However, the most significant
    issue was the stay of the order returning the children to England. The
    respondent was largely successful on that part of the motion. He is entitled to
    a costs award that reflects that success and factors in the overall mixed
    success. The appellant shall pay costs to the respondent forthwith in the
    amount of $3,000, inclusive of fees, disbursements, and taxes.

Released: C.W.H. November 28, 2017

C.W. Hourigan J.A


