



COURT OF APPEAL FOR ONTARIO

CITATION: H.E. v. M.M., 2015 ONCA 813

DATE: 20151125

DOCKET: C59991

Hoy A.C.J.O, Weiler and Pardu JJ.A.

BETWEEN

H.E.

Applicant (Appellant in Appeal)

and

M.M.

Respondent (Respondent in Appeal)

Amy A. Green and Emily M. Carroll, for the appellant

Rick Peticca, for the respondent

Heard: October 5, 2015

On appeal from the order of Justice Grant A. Campbell of
    the Superior Court of Justice, dated December 31, 2014 and the addendum to the
    order dated January 6, 2015.

Weiler J.A.:

A.

Overview

[1]

The overarching issue in this appeal is whether the trial judge erred in
    declining to assume jurisdiction under the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12 (
CLRA
), to decide custody of the parties two
    children, E.M. and R.M., Canadian citizens.

[2]

The appellant, Ms. H.E., was living in Egypt with the children when she
    moved to Ontario. In addition to seeking custody of the children under the
CLRA
or the courts
parens patriae
jurisdiction, she sought a declaration
    that her Egyptian divorce from the respondent, Mr. M.M., was invalid and other
    ancillary relief.

[3]

The respondents position was that the court should not assume
    jurisdiction. The appellant had abducted their children from Egypt, their last
    habitual residence and the proper jurisdiction in which to resolve the issue of
    custody. He argued that their Egyptian divorce was valid and that the appellant
    had attorned to the Egyptian courts jurisdiction in all matters.

[4]

The trial judge recognized the divorce as valid and found that the
    appellant had attorned to the jurisdiction of the Egyptian court. He found
    there was no basis to assume jurisdiction to decide the issue of custody and
    dismissed the appellants application. He concluded that the appellant should
    not be rewarded for wrongfully removing the children and ordered their return
    to Egypt.

[5]

The appellant appeals only the issue of the trial judges refusal to
    assume jurisdiction. She also brings a motion to introduce fresh evidence on
    appeal.

[6]

For the reasons that follow, I would hold that the trial judge erred in
    his approach to the test for jurisdiction under the
CLRA
and in
    concluding that all of the criteria for the assumption of jurisdiction under s.
    22(1)(b) of the
CLRA
were not met. In part, the trial judges error
    resulted from a palpable and overriding error in his assessment of the
    criterion of whether there was substantial evidence in Ontario concerning the
    best interests of the children.

[7]

I would also hold that the trial judge erred by failing to consider
    relevant evidence. In holding that there was no evidence the children would
    suffer serious harm if they were removed from Ontario, he did not consider
    whether the appellants allegations of abusive treatment by the respondent
    during their marriage were true and would put the children in an intolerable
    situation. It is unnecessary for me to decide this question on appeal because
    the fresh evidence establishes that the children would suffer serious psychological
    harm if they were returned to Egypt.

B.

The Facts

[8]

The appellant was born and raised in Egypt and is an Egyptian citizen.
    The respondent, born in Algeria, is an Egyptian citizen. The parents and
    relatives of both parties reside in Egypt. The respondent moved to Canada in
    1998 and became a Canadian citizen in 2002.

[9]

In December 2003, the parties married in Egypt. In August 2004, the
    appellant joined the respondent in Canada. She has permanent resident status in
    Canada. They purchased a house in Mississauga (the Cobbinshaw property) in
    September 2005. In October 2005, their daughter E.M. was born, and in December
    2006, a second daughter, R.M, was born. The children have dual
    Canadian-Egyptian citizenship.

[10]

On
    August 27, 2007, the family went to a wedding in Egypt following which the
    parties had an argument. The respondent returned to Canada alone in September
    2007. The appellant and the children remained in Cairo, Egypt.

[11]

In
    October 2007, the respondent, who was working as an engineer for Nortel, obtained
    a job transfer to Saudi Arabia. The parties reunited and the family returned to
    Canada to pack in March 2008. On April 22, 2008, they went to Egypt where they
    stayed until July 24, 2008, when the family moved to El Reyad, Saudi Arabia.
    The respondent has lived in Saudi Arabia ever since.

[12]

On
    September 20, 2009 the family visited Egypt. The appellant and respondent
    separated the next day. The respondent returned to Saudi Arabia, while the
    appellant and the children remained in Cairo at her parents home.

[13]

The
    respondent obtained an Egyptian divorce on October 5, 2009. Before obtaining
    the divorce, he was not required to notify the appellant, and did not
    communicate with her, regarding his obtaining a divorce. The divorce became
    final in December 2009 after the waiting period, or iddah had elapsed.

[14]

After
    the divorce, the appellant did not challenge its validity. It does not appear
    that there was any means to contest it. The respondent has since remarried.

[15]

On
    February 18, 2010, the appellant obtained an order for physical custody of the
    children by knowingly misrepresenting facts to the Egyptian court.
    Notwithstanding this, when the respondent learned of the order, he did not seek
    to set it aside.

[16]

On
    May 30, 2010, the respondents father was granted weekly visitation rights to
    the children every Friday from 4 p.m. to 7 p.m. at the Al Shams Sports Club
    (Sports Club) in Cairo. The respondent, who under Egyptian law is the
    guardian of the children, saw the children at the club when he was in Egypt.

[17]

In
    May 2011, the appellant obtained an Egyptian court order granting her
    educational custody of the children to allow her to make decisions about their
    schooling without consulting the respondent.

[18]

On
    June 27, 2012, the appellant and the children moved back to Canada without
    notifying the respondent.

[19]

On
    January 31, 2013, the appellant commenced these proceedings in the Superior
    Court of Justice in Kitchener, Ontario.

[20]

After
    being served with the application in Cairo, on March 1, 2013, the respondent
    and his father sought to terminate the appellants physical custody of the
    children (the custody dropping case) in Egypt based on her breach of the May
    30, 2010 order granting access to the respondents father.

[21]

The
    Cobbinshaw property, which had been rented, was sold with the closing in
    November 2013. The proceeds of sale were held in trust pending the courts
    decision as to the validity of the divorce and whether the appellant had an
    equalization claim under the
Family Law Act
, R.S.O. 1990, c. F.3.

C.

The legal framework

(1)

The
Childrens Law Reform Act

[22]

The
CLRA
contemplates only four ways in which an Ontario court can
    exercise its discretion to assume jurisdiction to make an order for custody of
    a child:
Dovigi v. Razi
, 2012 ONCA 361, 110 O.R. (3d) 593, at para.
    9-13, leave to appeal refused, 34945 (November 22, 2012).

[23]

First,
    under
s. 22(1)
(a) of the
CLRA
, an Ontario
    court may make an order for custody of a child where the child is
    "habitually resident" in Ontario.

[24]

Second,
    under s. 22(1)(b), where the child is not habitually resident in Ontario, the
    court may exercise jurisdiction if the child is physically present in Ontario
    and other requirements specified in the section are met.

[25]

Third,
    under s. 23, a court has jurisdiction to make an order for custody where the
    child is physically present in Ontario and the court is satisfied that the
    child would suffer serious harm under certain circumstances, including the
    removal of the child from Ontario.

[26]

Fourth,
    the court may exercise its
parens patriae
jurisdiction, which is
    specifically preserved by s. 69 of the
CLRA
. The jurisprudence has
    limited the role of s. 69 to filling gaps in the legislation: see
Dovigi
    v. Razi
, 2012 ONCA 361, 110 O.R. (3d) 593, at paras. 21-26, leave to
    appeal to S.C.C. refused, 34945 (November 22, 2012) and
Wang v. Lin
,
    2013 ONCA 33, 358 D.L.R. (4th) 452, at para. 51.

[27]

The aim of ss. 22, 23, 25, as well as 41-45 (dealing with
    extra-provincial matters), and 46 of the
CLRA
(incorporating the Hague
Convention on the Civil Aspects of International Child Abduction
, 25
    October 1980, Hague XXVIII (entered into force 1 December 1983)), is to create
    a consistent approach to jurisdiction where childrens best interests are at
    stake and to actively discourage the abduction or wrongful retention of
    children: Anita Volikis & A.J. Jakubowska,
2014-15 Annotated Ontario
    Childrens Law Reform Act
(Toronto: Carswell, 2014). Only a parent having
    a right to custody of the children can invoke the provisions of the Convention.
    In this case, the respondents position is that as he is the guardian of the
    children, he is their legal custodian. The appellant did not challenge the
    respondents standing to invoke the provisions of the
CLRA
.

[28]

The
    first stated purpose of Part III of the
CLRA
, however, is to ensure
    that applications to the courts in respect of custody of, incidents of custody
    of, access to and guardianship for children will be determined on the basis of
    the best interests of the children: s. 19(a).

[29]

The
    decision whether to assume jurisdiction is a discretionary one. Pursuant to s.
    25 of the
CLRA
, a court may decline to exercise its jurisdiction where
    it is of the opinion that it is more appropriate for jurisdiction to be
    exercised outside Ontario.

(2)

Custody under Egyptian Personal Status Law

[30]

An
    Egyptian court would not determine custody based on the best interests of the
    child. According to the respondents expert, Mr. Mehrez, under Egyptian law,
    the father is the guardian of the children, or wali; he has the right to make
    major decisions regarding their education, religion, and health etc. The mother
    has physical custody of children until the age of 15, when custody goes back to
    the father. At this age, a judge will give them a choice of which parent to
    live with.

[31]

Mr.
    Mehrezs expert report explained that a parent without physical custody is
    entitled to contact with the child if they obtain a court order. The access
    rights also go to the grandparents in case the parent is absent. In the event
    of a breach of an access order, the mother may lose physical custody to the
    other parent for a period determined by the judge.

[32]

A
    mother can also lose custody if proven untrustworthy or unfit to care for her
    children. If she remarries, she is likely to lose custody if the father proves
    she is unable to care for the children because of her new marriage.

[33]

If
    a mother loses custody, the order of preference for alternative custodians
    passes first to the mothers closest female relatives, not to the father.

(3)

The
Convention on the Civil Aspects of International Child Abduction

[34]

Although
    Egypt is not a signatory to the Hague Convention, the governments of Canada and
    Egypt have executed a bilateral agreement. Article 2 of the
Agreement
    Between the Government of Canada and the Government of the Arab Republic of
    Egypt Regarding Cooperation on Consular Elements of Family Matters
, 23
    July 1997 (entered into force 10 November 1997), applies to children of
    Canadian or Egyptian citizens, and persons with dual citizenship.

[35]

Article
    2 pledges co-operation and respect for the right of a child to maintain
    personal relations with a parent from whom the child is separated except if it
    is contrary to the childs best interests, as well as respect for the rights
    of access of a parent who is not entitled to custody of the child by supporting
    visas and exit permits for the non-custodial parent.

D.

the trial judges decision

[36]

The
    trial judge recognized the parties Egyptian divorce as valid, declined to
    assume jurisdiction over custody and access, and dismissed the appellants
    application in its entirety.

(1)

Attornment

[37]

The
    trial judge held that the appellant had attorned to the Egyptian courts
    jurisdiction because she had acted upon her divorce to apply for her dowry,
    property, and child educational custody orders. She only discontinued her child
    support proceedings there after she started simultaneous proceedings in
    Ontario.

[38]

The
    respondent and his fathers custody dropping case was ongoing. The appellants
    mother had attended on her behalf to contest the courts jurisdiction.

[39]

In
    refusing to assume jurisdiction, the trial judge found that the appellants
    attornment to the Egyptian courts jurisdiction was a crucial factor.

(2)

Assuming jurisdiction under s. 22(1)(b) of the
CLRA

[40]

The
    trial judge observed that, as the children were not habitually resident in
    Canada when the proceedings began, each of the six criteria under s. 22(1)(b)
    of the
CLRA
had to be met before assuming jurisdiction under that
    section.

[41]

There
    was no issue that the children were physically present in Ontario when the
    proceedings were commenced, satisfying the first criterion.

[42]

With
    respect to the second criterion, substantial evidence concerning the best
    interests of the child, the trial judge cited
Solem v. Solem
, 2013
    ONSC 1097,

[2013] W.D.F.L. 2720, for the proposition that it is not
    sufficient that there be
some
evidence in Ontario. He also relied on
Nordin
    v. Nordin
(2001), 17 R.F.L. (5th) 119 (Ont. S.C.), at para. 9, in which
    the court found that Ontario had very recent evidence the wife [was] no doubt
    structuring since her arrival

[43]

He
    noted that the respondent, who had visited the children at the Sports Club in
    Cairo regularly, had not seen the children since their removal from Egypt.

[44]

In
    relation to the third criterion, that no application for custody or access is
    pending in the place where the child is habitually resident, the trial judge
    pointed to the Egyptian proceedings commenced by the respondent and his father
    to vary the custody order, scheduled to be heard in January 2015.

[45]

The
    fourth criterion, that no extra-provincial order in respect of custody or
    access to the child has been recognized by a court in Ontario, was, however,
    satisfied. At para. 101, he refused to recognize the appellants 2010 Egyptian
    custody order, which she obtained through subterfuge and lies.

[46]

As
    to the fifth criterion, the trial judge observed that the children were
    Canadian-born but did not have a real and substantial connection to Ontario
    when they were removed from Egypt. Despite forming friendships and community
    ties over the past two years, he found at para. 103 of his reasons that the
    criterion was not met in the face of how they arrived in Ontario.

[47]

In
    relation to the sixth and final criterion, the balance of convenience, the
    trial judge found at para. 106 that the independent evidence that would be of
    greatest assistance to the court was in Egypt, since the childrens education
    (almost entirely), their families and friends, medical and health information
    is all in Egypt.

(3)

Assuming jurisdiction under s. 23 of the
CLRA

[48]

Having
    declined jurisdiction under s. 22, the trial judge then considered whether the
    child would suffer serious harm if removed from Ontario under s. 23. He found
    that the appellant had not provided any independent evidence to support her
    submission that the children would suffer serious psychological harm if
    returned to Egypt, and refused to assume jurisdiction.

[49]

He
    found that the appellants allegations of abuse by the respondent were relevant
    to the issue of controlled access, but not to the issue of jurisdiction. The
    appellant offered no independent evidence of abuse and admitted to deceiving
    the Egyptian court to obtain custody. The respondents denials and demeanour
    seemed to discredit the allegations, but in any event, he did not have to make
    credibility findings since his decision was based on a statement of agreed
    facts.

[50]

At
    para. 110, he concluded that although the appellant had physical custody of the
    children, and had been their primary caregiver since birth, she should not be
    rewarded for abducting them from their extended family in Egypt.

(4)

Parens patriae
jurisdiction

[51]

The
    trial judge found no gap in the legislation and declined to exercise the
    courts
parens patriae
jurisdiction.

(5)

Summary of conclusions respecting all claims

[52]

The
    trial judge summarized his conclusions, at para. 123, including:

(d) that at the time of the divorce, the children had no remaining
    connection with or to Ontario and that in order to respond to [the appellant]s
    demands (and [the respondent]s own desire) the parties intended to live in an
    Arabic/Middle Eastern country where Arabic customs and language prevailed;

(e) that after receiving notice of the Divorce[the appellant]
    availed herself of the Egyptian courts to assert her rights as adivorced
    spouse, with children, on several occasions relating to property, support and
    custody issues and that she had attorned to that jurisdiction;



(g) that [the appellant] and her parents colluded to develop a
    plan to obstruct [the respondent] and his family from having any ongoing
    relationship with the girls and developed a scheme to mislead [him] and his
    family (and the courts) in order to effect an escape with the girls to a far
    distant jurisdiction, the result of which would ensure that no realistic
    connection could be maintained with the [M.] family;

(h) that [the appellant] abducted (removed) the girls secretly
    for her own purposes, entirely ignoring the impact of her actions upon the
    girls established relationships in Cairo and to their emotional and
    relationship detriment;



(l) that there remains extant a contest custody claim(s) in
    Cairo in which both parties continue to participate, each with their own
    lawyer;

[53]

On
    January 6, 2015, the trial judge amended his order that the appellant bear the
    cost of returning the children to Egypt due to her impecuniosity and ordered
    that the respondent pay with the possibility of future reimbursement.

E.

Issues

[54]

The
    overarching question is whether the trial judge erred in refusing to exercise
    his jurisdiction. The appellant raises four main sub-issues:

1.

Did the trial judge err in finding that the appellant attorned to the
    Egyptian courts jurisdiction?

2.

Did the trial judge err in declining jurisdiction under s. 23 of the
CLRA
?

3.

Did the trial judge err in declining jurisdiction under s. 22(1)(b) of
    the
CLRA
?

4.

Did the trial judge err in holding that the appellants allegations of
    abuse were not relevant to the determination of jurisdiction?

F.

The Fresh evidence

[55]

Before
    addressing the issues on appeal, I must first deal with the appellants motion
    to adduce fresh evidence.

(1)

Description of the fresh evidence

[56]

In
    support of her motion, the appellant filed affidavit evidence that on January
    9, 2015, Carizon Family Counselling referred her to Family & Childrens
    Services (the Society) based on concerns that the children had experienced
    violence by the respondent as victims and as witnesses of violence towards her.

[57]

The
    appellant submits a letter from Ms. Sherri Greg, a child protection worker with
    Family & Childrens Services, dated January 30, 2015 that states:

[E.M.] remember[ed] times when her dad was slapping her mom,
    pulling her pants down and slapping her making her cry. She also disclosed
    physical abuse to herself by dad recalling a time when she broke a toy and dad
    slapped her in the faceR.M. didnt have any real memories of the exposure to
    violence but did [indicate]how scared she was to go with dad.

[58]

According
    to Ms. Greg, E.M. said she felt uncomfortable during the last visit with the
    respondent (during trial proceedings), because he grabbed her buttocks. A man
    told the respondent it was not appropriate to touch her that way. E.M. also
    said the respondent speaks to her inappropriately on the phone.

[59]

Ms.
    Gregs letter stated that John Dreger, a retired teacher-guidance counselor,
    contacted and met with the Society to report witnessing the respondent
    inappropriately touching E.M. at the access visit on January 9, 2015  the same
    day as E.M.s disclosure of the incident.

[60]

Ms.
    Greg wrote a follow-up letter on August 14, 2015. In February 2015, the Society
    received a referral from Carizon due to concerns of serious mental health
    issues with E.M. She had threatened to kill herself, slice her throat if
    deported back to Egypt and in March, she confirmed to the Society a clear,
    concrete plan to kill herself if removed from her home. The children began
    intervention services with Carizon and are seeing a psychiatrist for high
    anxiety.

[61]

Ms.
    Greg also indicated that R.M. was crying while talking about the possibility of
    having to return to Egypt especially if she and her sister had to leave the appellant.
    She was nervous because she had learned to read and write in English and not
    Arabic, and was worried about leaving her friends.

[62]

The
    proposed fresh evidence also consists of letters filed by the childrens school
    principal and a teacher indicating that they are doing very well at school.

[63]

The
    appellant further alleges that the respondent has ceased to exercise telephone
    access, which has caused the children distress. She has filed correspondence
    from the appellants counsel in that regard.

(2)

The parties positions

[64]

The
    appellant submits that the fresh evidence is admissible and required to make a
    disposition in the childrens best interests.

[65]

The
    respondent opposes the motion on the basis that it does not meet the
    requirements in
R. v. Palmer
, [1980] 1 S.C.R. 759, for adducing

fresh
    evidence:

1.

The evidence should not be admitted if by due diligence it could have
    been adduced at trial;

2.

The evidence must be relevant in the sense that it bears upon a decisive
    or potentially decisive issue in the trial;

3.

It must be credible, in the sense it is reasonably capable of belief;
    and

4.

It must be such that if believed it could reasonably, when taken with
    the other evidence adduced at trial, be expected to have affected the result.

[66]

The
    respondent points out that the fresh evidence of alleged inappropriate conduct
    towards the children could have been adduced at trial and was not. The
    appellant only claimed abuse towards her. He denies the allegations. He also
    denies he was approached by a bystander during his last access visit during
    trial proceedings. He submits that the appellant coached the children to
    fabricate the claims and points out that the appellant supervised the access
    visit from a short a distance away. The allegations, not pleaded in the
    Egyptian court proceedings, came out four months after the visit and three days
    after the trial decision.

[67]

With
    respect to the respondents lack of telephone access pending trial, the
    respondent submits that it was frustrated by the appellant who, in January
    2015, turned off the cell phone he gave the children. When he was able to speak
    to them from October to December 2014, the appellant interfered such that he
    could not speak freely.

[68]

Overall,
    the respondent submits that the fresh evidence discussed above is not credible
    or sufficiently cogent, and therefore it would not be in the interests of
    justice to admit it:
R. v. Hartman
, 2015 ONCA 498,

326 C.C.C.
    (3d) 263, at para 19. The respondent also submits that the fresh evidence
    violates his rights under ss. 7 and 11(d) of the
Canadian Charter of Rights
    and Freedoms.

[69]

The
    respondents affidavit states that he would like the childrens maternal
    grandmother to have custody of them. He submits that if they are returned to
    Egypt, they should stay with the appellant until the issue of custody is
    determined, and undergo immediate counselling to be paid for by him.

(3)

Admissibility of the fresh evidence

[70]

I
    begin by observing that the respondents
Charter
rights have no
    application to these proceedings. The
Charter
only applies to
    governmental actors:
RWDSU v. Dolphin Delivery Ltd.
,

[1986] 2
    S.C.R. 573.


[71]

Where
    the welfare of a child is at stake, the jurisprudence indicates a more flexible
    approach to the
Palmer
test for the admission of fresh evidence is
    appropriate:
Decaen v. Decaen
, 2013 ONCA 218,

303 O.A.C. 261,
    at para. 13; see
Catholic Childrens Aid Society of Metropolitan Toronto v.
    M. (C.)
, [1994] 2 S.C.R. 165. Flexibility in such matters is consistent
    with the need for up-to-date information on children, whose fate often hinges
    on a determination by judges, and is thus in line with the overarching
    criterion for admission, namely, the interests of justice.

[72]

The
    more flexible approach to fresh evidence in matters relating to child welfare
    does not, however, render all proffered fresh evidence admissible. The factors
    enunciated in the
Palmer
test remain relevant. In particular, to be
    admissible, the fresh evidence must be credible and reasonably capable of
    belief. Here, some of the fresh evidence on offer consisted of unsworn hearsay
    statements that do not meet that threshold requirement.

[73]

I
    agree with the respondent that the evidence of alleged inappropriate touching
    during an access visit should not be admitted. It could have been adduced at
    trial and I question its credibility  the visit was in a public place, the
    appellant was nearby, the reporting was delayed until after the result at trial
    was known, and the bystander did not make a report until January 9, 2015, the
    same day as E.M. That this is a mere coincidence seems unlikely. Similarly, I
    would also decline to admit the evidence of inappropriate comments to the
    children on the telephone.

[74]

I
    would, however, allow the appellants motion to adduce the fresh evidence
    pertaining to the emotional and psychological well-being of the children. It
    was not available at trial, it is highly relevant in that it enables the court
    to determine jurisdiction with an accurate view of the situation, and it is
    uncontroverted. Taken with the evidence at trial, it could reasonably be
    expected to affect the outcome.

[75]

In
    light of this court's discretion to admit fresh evidence and the
CLRA
s
    purpose of ensuring that custody applications are determined based on the best
    interests of the child, it is in the interests of justice to admit the
    evidence.

[76]

I
    now turn to the main issue, namely, whether the trial judge erred in declining
    to assume jurisdiction and in ordering the children be returned to Egypt.

G.

analysis

(1)

Did the trial judge err in finding that the appellant attorned to the
    Egyptian courts jurisdiction?

[77]

The
    appellant submits that the trial judge erred in finding that she attorned to
    the jurisdiction of the Egyptian court. After

she brought this custody
    application in Ontario, the respondent and his father initiated the custody
    dropping case in Egypt. Mr. Mehrez testified that this proceeding was the only
    one before the Egyptian court at the time of trial.

[78]

The
    respondent submits that the trial judge did not err in finding that the
    appellant had attorned to the jurisdiction of the Egyptian court proceeding. He
    relies on the decision of this court in
Van Damme v. Gelber,
2013 ONCA
    388, 115 O.R. (3d) 470, at para. 22, to the effect that, when a party goes
    beyond simply challenging the jurisdiction of a court or asserting that it is
    not the most convenient forum in which to try the case, the party will give the
    court consent-based jurisdiction.

[79]

As
    previously mentioned, the trial judge found, at para. 74, that the appellants
    attornment was a most crucial factor in deciding against her request that this
    court accept jurisdiction.

[80]

There
    is no reference to attornment in the
CLRA
. In
Wang
, at para.
    51, this court held that if the statutory test for jurisdiction under s. 22 is
    not made out, the court cannot resort to a common-law test for jurisdiction.
    The respondents reliance on the common law test for attornment is therefore
    misplaced.

[81]

Standing
    alone, attornment can be at most, one of the factors to consider in the
    analysis under s. 22(1)(b) or the decision whether to decline jurisdiction
    under s. 25:
Murray v. Ceruti,
2014 ONCA 679, 325 O.A.C. 300, at
    paras. 38-40, leave to appeal to S.C.C. refused, 36193 (March 12, 2015).

[82]

The
CLRA
mandates a child-centered approach based on the best interests of
    the child in discouraging child abduction. Children have no control over where
    their parents litigate.

[83]

The
    trial judge therefore erred in finding that attornment was crucial to whether
    the court had jurisdiction to entertain the custody claim.

(2)

Did the trial judge err in declining jurisdiction under s. 23 of the
CLRA
?

[84]

The
    trial judge rejected the appellants submission that the children would suffer
    serious psychological harm if they were returned to Egypt, and held that the
    appellant had provided no independent evidence of this whatsoever.

[85]

He
    then linked his decision not to assume jurisdiction to his view, at para. 110,
    that the appellant should not be rewarded for [the childrens] wrongful
    removal under section 22(3) of the
CLRA
.

[86]

He
    erred in basing his decision not to exercise jurisdiction under s. 23 on his
    finding that the children had been wrongfully removed from Egypt under s. 22(3).
    That section states that removal will not alter the childs habitual residence
    unless the person seeking the childs return has acquiesced or unduly delayed
    in bringing proceedings. Section 23 only requires that the children be
    physically present in Ontario.

[87]

When
    there is a risk of serious harm to the child, the aim of discouraging child
    abduction must yield to another purpose of the
CLRA
, namely, the best
    interests of the child.

[88]

While
    the trial judge did not have the benefit of the fresh evidence of the
    childrens mental health, this evidence confirms that on a balance of
    probabilities, there is a serious risk of psychological harm to the children if
    they are returned to Egypt, especially if the appellant does not go with them.

(3)

Did the trial judge err in declining jurisdiction under s. 22(1)(b) of
    the
CLRA
?

[89]

Once
    s. 23 has been satisfied, there is no need to conduct an inquiry into s. 22 of
    the
CLRA
:
Baril v. Liard
, 1994 Carswell Ont 2465 (C.A.);
    leave to appeal to S.C.C. refused (1994), 74 O.A.C. 160.

[90]

For
    the sake of comprehensiveness, I would hold that the trial judge also erred in
    declining jurisdiction under this section. I agree with the appellant that all
    six criteria for assuming jurisdiction under s. 22(1)(b) are satisfied in this
    case.

(a)

Physical presence in Ontario

[91]

There
    is no issue that the children were physically present in Ontario when the
    appellant initiated this application, as found by the trial judge.

(b)

Substantial evidence concerning the best interests of the child is in
    Ontario

[92]

The
    best interests of the child is defined in s. 24(2) and includes consideration
    of:

(a) the love, affection and emotional ties between
    the child and,

(i) each person entitled to or claiming custody of
    or access to the child;

(ii) other members of the childs family who
    reside with the child, and

(iii) persons involved in the childs care and
    upbringing;

[93]

The
    appellant argues that substantial evidence concerning the best interests of the
    children lies in Ontario, including most of the evidence respecting their
    education. This is particularly so if the fresh evidence is considered.

[94]

I
    agree with the appellants position. The trial judge erred in finding that
    almost all of the evidence of the childrens education, friends, and medical
    and health information, was in Egypt.

[95]

The
    trial judge found that the children saw their father regularly at para. 100 of
    his reasons.

[96]

The
    respondents affidavit filed in response to the affidavit to admit fresh
    evidence states that following the divorce, he frequently telephoned the
    respondent to see or speak to the children and was told they did not wish to
    speak to him. As a result he obtained the court order allowing for access to
    him and his family in Egypt. He states that after the court order, Notwithstanding
    the Appellants allegations that I would see the children every 4-5 months in
    Egypt following the divorce, which are completely false, I would visit the
    children in Egypt almost every month by attending with my parents during their
    scheduled access visits.

[97]

Both
    the trial judges reasons and the respondents affidavit ignore the Sports Club
    record filed in court which indicates that although the appellant and her
    parents presented themselves on multiple occasions for access to be exercised,
    in many instances going over periods of months no one attended in order to
    exercise access.

[98]

The
    trial judge made a palpable and overriding error in finding that since moving
    to Saudi Arabia in 2008, the respondent regularly saw the children at access
    visits at the Sports Club with the appellant, her mother, or his father in
    attendance. The trial judge thus misapprehended the evidence in finding, at
    para. 38, that the [court ordered] access was frequently obstructed by [the
    appellant] and her parents.

[99]

In
    determining that substantial evidence concerning the childrens best interests
    did not lie in Ontario, the trial judge erred in not considering the fact that
    the respondent no longer lives in Egypt and has not for many years. Since the
    children left Egypt, the respondent has not seen them save for two court
    ordered access visits during trial. Substantial current independent evidence as
    to the respondents parenting capacity is not in Egypt. Based on the records of
    the Sports Club, it would not appear that the children have a close
    relationship with their paternal grandparents.

[100]

The appellant
    has been the childrens caregiver since birth and they have never been
    separated from her. Evidence as to this relationship and her parenting capacity
    lies in both Ontario and Egypt.

[101]

Although
    evidence as to the parenting capacity of the proposed custodian, the
    appellants mother, is in Egypt, there is no indication that she is seeking to
    have custody determined there.

[102]

The appellant
    submitted that the trial judges reliance on the decisions of
Nordin
and
Solem
was misplaced. I agree. Both cases are distinguishable; they
    involved parties who had never lived in Canada together.

[103]

In
Nordin
,
    the children had been in Ontario for a few weeks at the time of the hearing.
    Two of three children were born in Japan, their last residence, and where the
    father still lived. The children were involved in extra-curricular activities
    and had friends in Japan. The court held that compared to truly independent
    evidence in Japan, recent evidence of Ontario teachers and doctors was of
    little assistance in providing a historical view of the childrens interests.

[104]

At the time of
    the proceedings in
Solem
, the children had lived in Canada for a
    substantial period of time. In that case, however, the parents were Norwegian
    citizens; the children had all been born in Norway and had lived there all
    their lives until their mother removed them to Ontario. Although the mother
    criticized the fathers care of the children, there was no dispute that they
    were in his care for substantial periods of time. That is not the situation
    here.

[105]

Since June 2012,
    the children have lived in Ontario, where they were born. E.M. previously lived
    in Ontario from October 2005 until August 2007. R.M. lived here for the first
    eight months of her life. The children spent about a year in Egypt and a year
    in Saudi Arabia before returning to Egypt for almost three years.

[106]

The bulk of
    their educational experience is in Ontario. As of trial, E.M. had spent about
    the same amount of time in Canada as in Egypt. She has records for Grades 2
    through 4 in Ontario. R.M. had spent about one less year in Ontario than in
    Egypt, where she attended kindergarten. Since moving to Ontario at the age of
    five and half, she has records for Grades 1 through 3.

[107]

The trial judge
    recognized that the children have been living and going to school in Ontario
    for the past two years. It was an error for him to discount the evidence of
    their friends and extra-curricular involvement here just because of how they
    arrived in the jurisdiction. Nor did the trial judge consider the effect on the
    children of transitioning from learning in English to Arabic if custody were to
    be determined in Egypt.

[108]

Insofar as the
    childrens health is concerned, I must consider the fresh evidence as to their
    mental health and emotional upset.

[109]

In concluding
    that substantial evidence concerning the best interests of the children was not
    available in Ontario, the trial judge erred in his approach and committed a
    palpable and overriding error of fact concerning the childrens contact with
    the respondent. There is substantial evidence respecting the children in
    Ontario.

(c)

No application for custody or access is pending before an
    extra-provincial tribunal in another place where the child is habitually
    resident

[110]

I read this
    requirement to mean that no application is pending when the Ontario courts
    jurisdiction is invoked. The party asking the court to assume jurisdiction must
    not be avoiding proceedings elsewhere.

[111]

To read this
    provision otherwise would mean that as soon as proceedings were commenced in
    the jurisdiction of the childs last habitual residence, the Ontario court must
    defer, no matter what stage of the proceedings in Ontario. This would make no
    sense if neither parent has ties to that jurisdiction.

[112]

In this case,
    this criterion is satisfied. When the appellant initiated proceedings in
    Ontario she had terminated proceedings in Egypt and the respondent and his
    father had not initiated the custody dropping case in Egypt.

(d)

No extra-provincial order in respect of custody of or access to the
    child has been recognized in Ontario

[113]

There is no
    issue that this requirement is satisfied.

(e)

Real and substantial connection to Ontario

[114]

The trial judge
    again relied on
Nordin
and
Solem
to hold, at para. 105, that
    any connection that the girls have with Ontario was nefariously created by
    [the respondent] with the sole intent of making a
status quo
argument
    and meeting the substantial connection test.

[115]

Crucially,
    neither decision involved a Canadian-born child or a child who had previously
    lived in Ontario. As I have indicated, in both cases, the children had lived
    their entire lives in the foreign country before coming to Ontario. In both
    cases, the parent seeking the childrens return to the foreign jurisdiction was
    living in that jurisdiction and had an ongoing real and substantial connection
    to it.

[116]

The trial judge
    erred in relying on these decisions and in finding that the children lacked a
    real and substantial connection with Ontario. Apart from their mother, their
    ties to Egypt are to their extended family.

[117]

The children,
    now aged 10 and 8, had lived in Ontario for a total of about four and three
    years respectively at the time of trial. They have friends, participate in
    extra-curricular activities, and have ties to their community.

(f)

Balance of convenience

[118]

The trial judge
    acknowledged the financial imbalance between the parties. The respondent was
    financially independent whereas the appellant was not. However, he held that
    the appellant could rely on her parents for support. He found that the balance
    of convenience favoured Egypt because the independent evidence that would be of
    greatest assistance to the court respecting the children was in Egypt. I have
    already given my reasons for holding that the trial judge erred in so finding.
    Overall, the balance of convenience favours Ontario.

(g)

Conclusion on assuming jurisdiction under s. 22(1)(b)

[119]

The criteria of
    s. 22(1)(b) have all been met. In the circumstances, the trial judge erred in
    declining to assume jurisdiction under this section.

(4)

Did the trial judge err in holding that the appellants allegations of
    abuse were not relevant to the determination of jurisdiction?

[120]

The appellant
    submits that the trial judge erred in dismissing her allegations of abuse as
    irrelevant to the determination of jurisdiction.

[121]

The respondent
    argues that the trial judge was not required to make credibility findings
    regarding the appellants allegations of abuse and, in any event, he rejected
    the allegations because: (a) the appellant did not produce any independent
    evidence; (b) the respondent strongly denied the allegations; and (c) the
    appellant admitted to manipulating and misrepresenting her circumstances to the
    Egyptian court for her own purposes.

[122]

The respondents
    submission that the trial judge rejected the appellants evidence of abuse
    ignores his qualification, at para. 13, that where necessary and as it applies
    only to the recognition/jurisdiction issues of the Egyptian divorce, [he]
    prefer[red] the [r]espondents evidence to [the appellant]s

[123]

The trial
    judges holding that the allegations of abuse by the appellant were not
    relevant to the determination of jurisdiction of the court is an error of law.

[124]

The allegations
    are relevant to the question whether the court should assume jurisdiction on
    account of serious harm to the child under s. 23 of the
CLRA
.
    Allegations of physical or emotional abuse are also relevant insofar as
    parenting capacity is concerned: see ss. 24(3) and (4).

[125]

A finding that a
    child would suffer serious harm if removed from Ontario may be based on
    serious harm to a parent. In
Isakhani v. Al-Saggaf
, 2007 ONCA 539,

226 O.A.C. 184, the mother fled to Canada from Dubai. There was a significant
    amount of evidence that the father was physically and emotionally abusive
    towards her that justified this court taking jurisdiction under s. 23 and a
    finding on the balance of probabilities that the situation was violent and
    put the child in an intolerable situation:
Isakhani
, at para. 13. On
    the balance of probabilities, the child would suffer serious harm if returned
    to Dubai.

[126]

The trial judge
    erred in not considering the allegations of abuse insofar as they were relevant
    to the courts potential assumption of jurisdiction under s. 23.

H.

disposition

[127]

For the reasons
    I have given, I would hold that the trial judge erred in declining jurisdiction
    under the
CLRA
and would allow the appeal. Accordingly, I would order
    that paragraphs 3 to 6 of the trial judges order declining jurisdiction,
    ordering the return of the children of the marriage to Egypt and ancillary
    orders be set aside. Instead, I would order that jurisdiction to determine
    custody of the children be exercised by the Superior Court in Ontario.

[128]

In order to
    stabilize the situation of the children, there will be an order granting
    interim custody of the children to the appellant pending further order of the
    Superior Court.

[129]

I would also set
    aside paragraph 8 respecting costs at trial. As success at trial is now
    divided, I would order that each party bear their own costs of the proceedings.

[130]

Having regard to
    the outcome of the appeal and the costs submissions of the parties, I would
    order costs of the appeal to the appellant fixed in the amount of $35,000
    inclusive of all fees and disbursements.

Released: (A.H.) November 25, 2015                               K.M.
    Weiler J.A.

I agree Alexandra Hoy A.C.J.O.

I agree G. Pardu J.A.


