



COURT OF APPEAL FOR ONTARIO

CITATION: Geliedan v. Rawdah, 2020 ONCA 339

DATE: 20200529

DOCKET: C67443

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

Mazen Geliedan

Applicant (Respondent)

and

Abir Rawdah

Respondent (Appellant)

Kristy Maurina, Michael J. Stangarone
    and Edward C. Conway, for the appellant

Matthew Gourlay, Farrah Hudani and
    Jessica Luscombe, for the respondent

Heard: In writing

REASONS FOR DECISION

[1]

This is an application brought by the Applicant/Respondent
    in Appeal (father) to re-open an appeal that has already been decided: 2020
    ONCA 254. The application is based upon new evidence placed before the court,
    consisting of text messages sent by the Respondent/Appellant in Appeal (mother)
    to the father after the appeal was heard, in the time period immediately prior
    to the release of the judgment.

[2]

The child at the centre of this litigation was
    born in the United Kingdom. The U.K. is the only place the family lived
    together prior to separation. After the parents separated, the father
    eventually went to live in Dubai. The mother and child later joined the father
    in Dubai. Well over a year after arriving in Dubai, the mother and child came
    to Ontario, where they have lived since. They had been in Ontario for only a
    short time before the father sought to have the child returned to Dubai. As
    recounted in the judgment, the parties have dramatically different narratives
    as to why the mother and child travelled to Dubai, were in Dubai as long as they
    were, and why the mother and child later came to Ontario.

[3]

The father obtained an order pursuant to s. 40
    of the
Childrens Law Reform Act,
R.S.O. 1990, c. C.12 (
CLRA
)
    to have the child returned to Dubai. The mother appealed from that order. We do
    not intend to repeat the analysis set out in the judgment. This court
    determined that the application judge erred in deciding the s. 40 application
    without regard to a binding, valid Consent Custody Order in the U.K., one that
    specifically governs the circumstances under which the child could be removed
    from the U.K.

[4]

Among other things, this court stayed the
    fathers s. 40
CLRA
application on the condition that he promptly
    commence a similar proceeding in the court that issued the Consent Custody
    Order. In the event that the U.K. court declines to take jurisdiction, this
    court ordered that the father could apply to the Ontario Superior Court of Justice
    to lift the stay and seek a rehearing of his s. 40 application. In that event,
    the mother could also bring her own application(s).

[5]

The father has filed a motion to have this court
    reconsider its appeal decision on the basis of new evidence arising from text
    messages sent by the mother to the father, suggesting that she now wishes to
    have the child returned to Dubai and to live with the fathers family.

[6]

The father submits that these text messages
    belie the mothers narrative, as reviewed in this courts judgment, that she
    and the child were involuntarily trapped in Dubai for well over a year, the
    father having taken their passports. The father has always challenged that
    narrative, a challenge that is also reviewed in the reasons for judgment. The
    father argues that the new evidence highlights that the mother has not been telling
    the truth about what occurred in Dubai.

[7]

The mother argues that the text messages
    represent nothing more than her panic over financial strain, particularly
    during COVID-19, her desire to have the father provide some money to support
    the child, and her concern that she may lose the appeal. She says that he is in
    breach of a prior support order. (He denies this suggestion.) She contends that
    the messages should not, therefore, be taken at face value. She was simply
    saying the things reflected in the new evidence in an effort to have the father
    provide much-needed financial aid and to better position herself in the event
    that she lost on appeal.

[8]

In rare situations, this court may re-open an
    appeal, particularly where an order has not yet been taken out:
First Elgin
    Mills Developments Inc. v. Romandale Farms Limited
, 2015 ONCA 54, 381
    D.L.R. (4th) 114, at para. 7. This rare event will only occur where a very
    serious injustice will result absent reconsideration of the matter:
Doman
    Forest Products Ltd. v. GMAC Commercial Credit Corp. - Canada
, 2005 BCCA
    111, 209 B.C.A.C. 197, at para. 6;
First Elgin Mills
, at para. 8. This
    is not one of those rare cases.

[9]

The parties have been locked in a serious factual
    dispute from the outset of these proceedings. There seems to be little, if
    anything, they factually agree upon. While the new evidence may well be
    relevant to credibility determinations that will no doubt inform where the
    child should live, this court did not make credibility findings on the appeal.
    It was unnecessary to do so. Rather, this courts judgment focussed upon which
    court should decide these issues.

[10]

As this court noted at para. 76 of its reasons:

In all of the circumstances, the application
    judge should have given substantial weight to the Consent Custody Order when
    arriving at an appropriate disposition. Given the highly disparate accounts of
    the parties, and the clear need to resolve those accounts before ordering the
    childs return to Dubai, the matter should have been returned to the Central
    Family Court in London, U.K. for determination.

[11]

Accordingly, while the new evidence may be
    relevant to determining the fathers application to have the child returned to
    Dubai, it is irrelevant to this courts decision that the U.K. Consent Custody
    Order must be respected and the father must first pursue the matter there.
    There is no basis upon which to reopen the appeal.

[12]

As for costs, the mother asks for her costs on
    this motion. We grant $2,500 in costs.

[13]

The parties were invited to make costs
    submissions following the appeal. We have reviewed those submissions.

[14]

The mother asks for the costs award from the
    application court to be set aside. We grant that order.

[15]

She also asks for $41,000 for the application,
    $7,461.39 for a motion to stay the judgment, $4,640.57 for a fresh evidence
    application, and $25,422.29 for the appeal. With disbursements and expert fees
    added, the mother asks for a total costs order in the amount of $86,719.

[16]

The father says there should be no costs awarded
    for a number of reasons:

·

the litigation is not over;

·

the mother did not get the relief she asked for
    on appeal;

·

the mother behaved badly in the application
    court;

·

she behaved badly after the appeal;

·

she unnecessarily complicated the litigation by
    advancing issues that did not need to be decided by this court;

·

she brought a constitutional challenge for the
    first time on appeal; and

·

the judgment sets out new law that could not be
    anticipated.

[17]

Based on all of these factors, the father asks
    that any costs award be reserved until the question of jurisdiction is finally
    determined.

[18]

Given the detailed history of this matter and in
    light of the courts order that the father next pursue this litigation in the U.K.,
    it is not appropriate to reserve the question of costs arising from litigation
    here to a court there. Accordingly, we make the following costs order against
    the father:

1)

$2,500 for the application to reopen.

2)

$10,000 for the appeal. While the mother was
    successful on appeal, the appeal involved a nuanced point of law. We also accept
    the fathers submission that the mother unnecessarily complicated the appeal
    with all manner of issues that did not need to be decided. This is most obvious
    in relation to the constitutional issue that was raised for the first time on
    appeal. We consider the fresh evidence application as part of the appeal.

3)

$5,000 for the application to stay the judgment
    pending appeal.

4)

$20,000 for the original application.

[19]

In total, the father shall pay costs in the
    amount of $37,500 to the mother in addition to disbursements and H.S.T.

P. Lauwers J.A.

David M. Paciocco J.A.

Fairburn J.A.


