



COURT OF APPEAL FOR ONTARIO

CITATION: Geliedan v. Rawdah, 2020 ONCA 254

DATE: 20200415

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

Estee L. Garfin and Hera Evans, for the
    intervenor the Attorney General of Ontario

Heard: November 27, 2019 and December 6, 2019

On appeal from the order of Justice E. Llana
    Nakonechny of the Superior Court of Justice, dated September 17, 2019.

Fairburn J.A.:

A.

OVERVIEW

[1]

The parties have a six-year-old child. She is currently living with her
    mother in the Toronto area.

[2]

The father brought an application under s. 40 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12

(
CLRA

)
    asking for a finding that the child had been wrongfully removed to [and] was
    being wrongfully retained in Ontario. He asked the court to order that the
    child be returned to what he claims is her habitual residence in Dubai, United
    Arab Emirates, so that all matters relating to custody and access could be
    dealt with there.

[3]

The mother did not bring a counter-application. Specifically, she did
    not ask the court to exercise jurisdiction to make a custody and access order in
    Ontario. Rather, the mother opposed the fathers application on the basis that
    the childs habitual residence has been established, by an existing consent
    court order, as England and Wales, United Kingdom, and that the father had wrongfully
    retained the child in Dubai. As I explain below, the mother claims that her
    decision to come to Ontario was one of necessity.

[4]

The issue on appeal is whether the application judge erred in ordering that
    the child be returned to Dubai.

[5]

In my view, the application judge erred in making that order. That error
    flows from her treating the fathers s. 40
CLRA

application (the Application) as if it were governed
    by the
Convention on the Civil Aspects of International
    Child Abduction,
Can.
    T.S. 1983, No. 35

(
Hague Convention
).

[6]

For the reasons that follow, I would allow the appeal, stay the
    Application, and order that the father bring a similar proceeding in the court
    that issued the consent custody order.
[1]


B.

THE BACKGROUND and the consent custody order

[7]

The appellant mother is a Lebanese-born citizen of Lebanon and Canada.
    The respondent father is a Saudi Arabia-born citizen of Saudi Arabia and the
    United Kingdom. Their daughter was born in London, England and is a citizen of
    the United Kingdom. It does not appear to be in dispute that the child is also
    a Canadian citizen by birth.

[8]

The parties were married in London in the fall of 2012. Their daughter
    was born in 2013. The parties separated shortly after her birth. Extensive
    family court proceedings took place within the U.K. A custody and access order was
    issued in respect of the child, on consent, on November 25, 2015. The parties
    agree it is the last custody and access order made (the Consent Custody
    Order). In the Consent Custody Order, among other things, His Honour Judge
    Cryan, a judge of The Family Court at Central Family Court, in London, U.K.,
    ordered as follows:

a)

[t]he child is habitually resident in the jurisdiction of England and
    Wales; and

b)


neither party shall remove the child from the
    jurisdiction of England and Wales without the written consent of the other or
    order of the court.

[9]

Under the terms of the Consent Custody Order, the child is to live with
    the mother and the mother is to make the child available for parenting time
    with the father for two 24-hour periods and one eight-hour period each week.

[10]

The
    father acknowledges that he started living more substantially in Dubai, around
    the time that the Consent Custody Order was made. Even so, he contends that he frequently
    travelled to London to retain contact with the child who was living with the mother.
    The mother says that the father was actually living more substantially in Saudi
    Arabia and that he did not come to London as often as he suggests. Regardless,
    on April 2, 2018, the mother travelled with the child to Dubai to meet the
    father. From that point forward, the parents narratives dramatically diverge.

[11]

The
    mother maintains that she and the child went to Dubai for a two-week visit with
    the father. Although she and the child had return flights to London, Heathrow
    Airport booked for April 17, 2018, the mother contends that they never got on those
    flights because the father confiscated their passports.

[12]

The
    mother maintains that she and the child were, for all intents and purposes,
    trapped in the U.A.E. for the next almost 14 months. The mother does not speak
    Arabic and says that her repeated attempts to obtain police assistance were unsuccessful.
    On one occasion, she found the passports in the trunk of the fathers car. She
    took the child to the airport and attempted to get passes to exit the country. There
    was a waiting period to obtain the exit passes and so she hid the passports
    behind a fire extinguisher outside of her apartment. The passports were found
    by the apartments concierge who returned them to the father. The mother says
    that the father was furious and assaulted her as punishment for attempting to
    leave.

[13]

About
    six months later, the mother maintains that she surreptitiously attended at the
    fathers home when he was in Saudi Arabia for a funeral. She says that she regained
    control of both passports and obtained the assistance of an unidentified person
    in secretly leaving the country with the child. On May 29, 2019, the mother and
    child escaped to Beirut, Lebanon. The mother says that, having been absent from
    the U.K. for so long, and not being a citizen of the U.K., she was uncertain as
    to whether she could reenter that country with the child. Accordingly, as a
    Canadian citizen, on June 9, 2019, she and the child flew to Ontario where her
    mother (the maternal grandmother) and other family members live.

[14]

The
    father completely denies the mothers narrative. He says that the mother and he
    agreed that she and the child would relocate to the U.A.E. so that he could be
    more actively involved in parenting the child. The father maintains that it was
    the parents common intention to have the child set down roots in Dubai. The
    father contends that he never stole the passports. While he may have had them
    for a while, it was for the purpose of obtaining legitimate documentation. He
    says that he never assaulted the mother. The father alleges that the mother simply
    became bitter after the childs paternal grandparents refused to purchase her
    an expensive home in which to live. The father says that it was only after that
    decision was made, that the mother decided to abduct the child and take her to
    Canada.

C.

THE DECISION UNDER APPEAL

[15]

Pursuant
    to his Application, the father argued that the child should be returned to Dubai,
    which he claims had become her habitual residence. The mother opposed the Application,
    claiming that the father had wrongfully retained the child in Dubai and that
    the childs true habitual residence is the U.K., as legally recognized in the
    Consent Custody Order. The mothers position is that all custody and access
    matters should be resolved in the U.K.

[16]

The parties filed extensive affidavits and the written record on the
    Application was substantial, detailed and conflicting in nature.
The
application judge considered whether the Application could be dealt
    with on a summary basis or required a hearing with oral

evidence. Over
    the mothers objection, she decided the Application on the written record
    alone.

[17]

The
    application judge determined that the child was habitually resident in Dubai immediately
    prior to the alleged wrongful removal to Ontario. She focused on the childs
    life in Dubai from April 2, 2018 to May 30, 2019. She observed that the child
    first resided with both of her parents in rental accommodation and then
    primarily with her mother after her father moved to a separate apartment. Even
    so, the application judge found that the child was cared for by both of her
    parents.  She attended private school during this time, participated in
    activities, piano lessons, and horseback riding, and had a nanny and a dog.
    Extended family, including aunts and cousins as well as family friends, visited
    the parties and the child while in Dubai.

[18]

Based
    on these findings, and without resolving the parents conflicting narratives
    about why the child was in Dubai for 14 months or the impact of the Consent
    Custody Order, the application judge concluded that Dubai was the childs
    habitual residence:

I have considered the Respondents argument that the child
    stayed in Dubai because the Respondent was trapped there by the Applicant.
    The Respondent sought to leave Dubai when her relationship with the Applicant
    did not proceed as she would have wished.
This does not change the fact that
    the childs social and life connections including her community, school and
    activities were in Dubai for a fourteen-month period
.
The Respondent
    shipped her and [the childs] belongings from London to Dubai in August 2018.
    [The child] was acclimatized to this jurisdiction over an appreciable period of
    time. [Emphasis added.]

[19]

Having
    concluded that the childs habitual residence was Dubai, the application judge
    went on to consider whether the child would suffer serious harm if returned
    to it. She stated that this level of harm must rise to a high threshold.
    Relying upon
Thomson v. Thomson
,
[1994]
    3 S.C.R. 551, at p. 596, she concluded that to exempt the child from being
    returned to her habitual residence because of harm, that harm must rise to the
    level of an intolerable situation. Again, without resolving the conflict in
    the parties narratives, the application judge concluded that the mother had failed
    to meet her burden to show that level of harm.

[20]

Accordingly,
    the application judge ordered the childs return to Dubai. She also made several
    ancillary orders, including that the father pay for the mothers flight to the
    U.A.E. and rent an apartment for her for a period of time.
[2]


D.

THE LEGAL FRAMEWORK

[21]

I
    begin with this important observation: while Canada is a signatory to the
Hague Convention

and s. 46 of
    the
CLRA
makes

its provisions the law
    of Ontario, the U.A.E. is not a signatory to the
Hague
    Convention
.


[22]

The
    father brought the Application pursuant to s. 40 of the
CLRA
,
    which

reads:

Upon application, a court,

(a) that is
satisfied that a child has been
    wrongfully removed to or is being wrongfully retained in Ontario
; or

(b) that may not exercise jurisdiction under
    section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following
:

1. Make such
interim order
in respect of
    the custody or access as the court considers is in the
best interests of the
    child
.

2.
Stay the application
subject to,

i. the condition that
    a party to the application promptly commence a similar proceeding before an
    extra-provincial tribunal, or

ii. such other
    conditions as the court considers appropriate.

3. Order a party to
return
    the child to such place as the court considers appropriate
and, in the
    discretion of the court, order payment of the cost of the reasonable travel and
    other expenses of the child and any parties to or witnesses at the hearing of
    the application. [Emphasis added.]

[23]

Where
    a return application is brought under the
Hague Convention
,
the court first looks to the question of habitual residence under Article 3,
    which reads:

The removal or the retention of a child is to be
    considered wrongful where:

(a) it is in breach of rights of custody
    attributed to a person, an institution or any other body, either jointly or
    alone, under the law of the State in which the child was
habitually resident
    immediately before the removal or retention
; and

(b) at the time of the
    removal or retention those rights were actually exercised, either jointly or
    alone, or would have been so exercised but for the removal or retention. [Emphasis
    added.]

[24]

Once
habitual residence is determined, Article 12 of the
Hague
    Convention

requires that the child be returned to the contracting
    state of the childs habitual residence unless an exception applies:
the
    authority concerned 
shall
order the return of the child forthwith.
    [Emphasis added.]

[25]

In this case, the alleged exception was
    that the child would experience harm if returned to Dubai. To this end,
Article 13 of the
Hague
    Convention
reads:

Despite
    the provisions of the preceding Article [the mandatory return to the childs
    habitual residence provision], the judicial or administrative authority of the
    requested State is
not bound to order the return of the child if the person
,
    institution or other body which opposes its return establishes that:



(b)
    there is a
grave risk that his or her return would expose the child to
    physical or psychological harm or otherwise place the child in an intolerable
    situation
. [Emphasis added.]


E.

ANALYSIS: THIS WAS NOT A
HAGUE CONVENTION
CASE

(i)

Overview

[26]

Although
    the U.A.E. is not a
Hague Convention

signatory, and the application judge recognized this
    fact, she still decided the case using the
Hague
    Convention

s

legal framework.


[27]

As
    if Article 3 of the
Hague Convention

applied, the application judge first asked where the
    child had been habitually resident just prior to her arrival in Ontario. Having
    resolved that the answer to that question was Dubai, she then asked whether the
    child would be subjected to serious harm, which she determined must rise to the
    level of an intolerable situation, were the child to be returned to Dubai.
    Answering that question in the negative, the application judge proceeded as if,
    pursuant to Article 12 of the
Hague Convention
,
    she was required to return the child to Dubai.

[28]

It
    was an error for the application judge to apply a
Hague Convention

approach when determining this s. 40
CLRA
Application.

(ii)

The
    Differences Between the
Hague Convention
and Section 40 of the
CLRA

[29]

The
    father contends that the application judge was right to apply the
Hague Convention
framework. He points to various lower
    court decisions in support of his argument that the principles governing
    applications under the
Hague Convention

and s. 40 of the
CLRA

are entirely interchangeable: See e.g.
Bolla v. Swart,
2017 ONSC 1488, at para. 38;
Moussa v. Sundhu
,
2018 ONCJ 284, 11 R.F.L. (8th) 497, at para. 32.

[30]

I
    do not accept the proposition that a s. 40
CLRA

application is indistinguishable from a
Hague Convention

application.

[31]

Recall
    the wording of s. 40 of the
CLRA
that is relevant to this appeal:


Upon application, a court,

(a) that is satisfied that a child has been
wrongfully
    removed to or is being wrongfully retained in Ontario
;

may do any one or more
    of the following
. [Emphasis added.]

The available remedies are: (1) making interim custody
    or access orders in the best interests of the child; (2) staying the
    application on conditions, including that a similar proceeding be promptly commenced
    in another jurisdiction; and (3) ordering the return of the child to such
    place as the court considers appropriate.

[32]

Recall,
    also, that under the
Hague Convention
,
the
    court must determine the childs habitual residence immediately before the
    alleged wrongful removal or retention and, then, unless a specified exception
    applies, order the childs return to the state of the habitual residence.

[33]

Accordingly,
    a plain reading of s. 40 of the
CLRA
and of the relevant Articles under the
Hague Convention
reveal
two fundamental differences between the two types
    of return applications:

(1) The determination of
    wrongful removal or retention is not tied to the concept of habitual
    residence under s. 40 of the
CLRA
. In fact, s. 40 contains no reference
    at all to the term habitual residence.

(2) If the court is
    satisfied that a child has been wrongfully removed to or is being wrongfully
    retained in Ontario under s. 40 of the
CLRA
, unlike under the
Hague
    Convention,
the court is given broad powers to make orders, including
    staying the application on conditions. This is in direct contrast to the
Hague
    Convention
which provides that, once there has been a determination of wrongful
    removal, subject to specified exceptions, the child must be returned to the
    state in which he or she was habitually resident.

[34]

While
    considerations taken into account under
Hague Convention

and s. 40
CLRA

applications will often overlap, it is important not to
    lose sight of the fundamental differences between the applications
.
The courts
    ability to exercise a broader range of powers under s. 40 is particularly
    important.

(iii)

The Rationale
    for the Differences Between the Schemes

[35]

There
    is good reason to distinguish between a return application under the
Hague Convention

and under
    s. 40 of the
CLRA
.

[36]

In
    relation to
Hague Convention

matters, it is widely recognized that, between
    contracting states, the country of habitual residence is the most appropriate
    location to determine custody and access issues. Accordingly, the purpose of
    the
Hague Convention

is
    to ensure that, between signatories to the
Convention
,
    there is the prompt return of wrongfully removed or retained children to their
    country of habitual residence:
Office of the Childrens
    Lawyer v. Balev
,
    2018 SCC 16, [2018] 1 S.C.R. 398,

at
    para. 24. The return order is not a custody determination, but an order
    designed to restore the
status quo
 existing
    before the wrongful removal or retention and to deprive the wrongful parent
    of any advantage that might otherwise be gained by the abduction:
Balev
,
at para. 24.

[37]

The
    fact that a state is a signatory to the
Hague Convention

provides comfort about how custody and access matters
    will be dealt with by that state. By becoming a signatory to the
Hague Convention
,
states agree to follow the
    reciprocal obligations as set out in the
Convention
.
    By virtue of signing the
Hague Convention
,
signatories
    warrant that they are:

[f]irmly convinced that
    the interests of children are of
paramount importance in matters relating to
    their custody
. [Emphasis added.]

Given the paramountcy of the childs 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.

[38]

When
    considering whether to return a child to a non-signatory state, there is no
    basis to assume that the receiving state will determine custody and access
    issues based on the childs best interests. As noted by Laskin J.A. in
Ojeikere v. Ojeikere
,
2018 ONCA 372, 140 O.R.
    (3d) 561, at para. 61, [s]ome non-signatory countries may do so; others may
    not. By way of example, in this very case, there is a significant dispute
    between the parents as to whether, in the U.A.E., considerations other than the
    childs best interests might prevail.

[39]

Over
    the objections of the mother, the father was permitted to file expert affidavit
    evidence on the Application. The fathers expert maintains that, among other
    things, the U.A.E. court will consider what is in the best interests of the
    child.

[40]

The
    mother asks to file two expert reports as fresh evidence on appeal, both of
    which conflict with the fathers expert evidence on the Application. The father
    opposes the admission of the evidence. I would admit it.

[41]

I
    start with the observation that where a childs best interests are at issue,
    the test for the admission of fresh evidence is applied more flexibly:
Ojeikere
,
at para. 47;
Salehi
    v. Tawoosi
,
2016 ONCA 986, at para. 21.

[42]

From
    the time that the Application was scheduled to be heard, the mother found a
    lawyer, responded to a detailed and lengthy Application, and pulled together
    her own record which was largely based on evidence located within foreign
    countries. This was all done in circumstances where, if the mother is to be
    believed, the father had accessed her iCloud account and locked her out of it
    so that she did not have proper access to her historical electronic messages. In
    these circumstances, I accept that she acted diligently, but did not have
    enough time to obtain an expert report, particularly in the 11 days she had
    left after the father served and filed his experts report.

[43]

The
    mothers expert reports, addressing how custody and access issues will be dealt
    with in the U.A.E., are at least as reasonably capable of belief as the
    fathers expert report. And, they could have affected the result and are
    necessary in so far as they are relevant to the childs best interests. Therefore,
    I would admit the mothers expert reports as fresh evidence on appeal.
[3]
I would also admit the fathers responding affidavit.

[44]

I
    will not go through the experts reports in detail as it is not possible to
    reconcile their competing views, particularly on appeal. Suffice to say that
    the experts disagree on how custody and access issues would be dealt with if
    the child were to be returned to the U.A.E. While the fathers expert suggests
    the childs best interests would be prioritized, the mothers experts suggest
    otherwise. The mothers expert reports suggest that, in any custody and access
    dispute, as a Christian, non-national, Canadian-Lebanese, non-Arabic speaking
    woman, the mother would be treated differently than the father who is a Muslim,
    non-national, Saudi Arabian-United Kingdom man. According to the mothers
    experts, under Sharia law, the parents could be treated very differently in
    terms of their suitability as a custodial parent and, indeed, the mothers suitability
    to even remain in the U.A.E.

[45]

I
    note the conflict in the experts reports to underscore that, when it comes to
    non-signatories of the
Hague Convention
, it
    cannot be presumed that the non-signatory state adheres to the fundamental
    precepts of the
Hague Convention
.


F.

The
    Application Judge ASKED the Wrong Question

[46]

In
    fairness to the application judge, and as pointed out by the father, I wish to
    emphasize that the application of
Hague Convention

principles to non-
Hague Convention

cases is not without precedent. Even so, it was wrong to
    proceed as if this case was governed by the principles under the
Hague Convention
. That error made a difference in this
    case.

[47]

In
Hague Convention

cases,
    where the childs habitual residence must be resolved, a hybrid approach is
    applied, considering both the focal point of the childs life prior to the
    alleged wrongful removal or retention, as well as parental intention:
Balev
,
at paras. 43-46. That approach requires
    the court look at the entirety of [the childs] situation:
Farsi v. Da Rocha
, 2020 ONCA 92, at para. 41. Accordingly,
    even if this had been a
Hague Convention

case, the application judge would have had to grapple
    with the Consent Custody Order and the wildly different accounts of the parents
    in determining the location of the childs habitual residence.

[48]

Yet,
    in concluding that Dubai was the childs habitual residence, the application
    judge did not consider the Consent Custody Order. Nor did she attempt to
    resolve the crux of the parental dispute in this case: how the child came to be
    in Dubai for over a year. Was the move from the U.K. to the U.A.E. a joint
    parental decision or was the stay in Dubai really an involuntary confinement?

[49]

In
    support of her position that they were involuntarily confined, the mother emphasizes
    that she and the child travelled on return airline tickets, returning to London
    about two weeks after their arrival in Dubai. The mother kept her flat in
    London when she travelled. The child was not withdrawn from her school in
    London before they travelled. Immediately upon their arrival in the U.A.E., the
    mother communicated with her cousin in Beirut, asking that she join them in
    Dubai. The record of that communication reveals that when the cousin asked how
    long the mother would be in the U.A.E., the mother answered that she would only
    be there until April 17
th
, the date coinciding with the return
    airline tickets to Heathrow.

[50]

The
    mother says that after the father took the passports, she lived in fear, and
    continues to fear, that the father would remove the child to Saudi Arabia. She
    presented documents she found stored on the fathers phone that suggest he was
    actively seeking a passport and travel permit for the child to go into Saudi
    Arabia. The mother also produced evidence from her relatives, supporting her
    position. Among that evidence was her uncles affidavit, suggesting that he
    spoke with the fathers parents and they wanted the child to live in Saudi
    Arabia with their other grandchildren and, in fact, were prepared to give the
    mother a large sum of money in exchange for abandoning her daughter and
    leaving to Canada.

[51]

The
    father says that the mothers version of events is sheer fantasy. He likens it
    to a Hollywood movie that the mother has watched numerous times.

[52]

In
    support of his position that the parents made a joint decision to change the
    childs habitual residence to Dubai, he relies on numerous factors.

[53]

He
    maintains that there was never any intention for the mother and child to use
    the return airline tickets to Heathrow Airport two weeks after their arrival in
    the U.A.E. He says that he bought them return airline tickets only because they
    were cheaper than the one-way tickets he found.

[54]

Also
    in support of his position, the father points to emails, said to be authored by
    the mother, exploring school options for the child in Dubai, more than a year
    in advance of moving there. He points to the fact that she also travelled there
    in advance of April 2018 in order to assess the schools. He also points to
    communications between the mother and his father suggesting that she was
    planning on moving to Dubai. The mother says that the father has hijacked her
    private electronic communications and implies that he has falsified some of her
    communications.

[55]

The
    father denies ever having been violent toward the mother. Indeed, he claims the
    opposite, that the mother is unstable and violent toward him. He claims that
    she cannot be trusted to parent the child and says she is mentally unstable. She
    claims it is he who is mentally unstable.

[56]

The
    father also points to several documents in support of his version of events,
    including placing significant emphasis on an email that the mother sent to the
    British Embassy in July 2018 (over three months after her arrival in the
    U.A.E.). He highlights the fact that the mother told the Embassy that she moved
    to Dubai so that her daughter could be closer to her father.

[57]

I
    note that other aspects of that email chain could be said to support the
    mothers version of events, including her reference to the father having put a
    travel ban on our daughter and having taken her passport from me. The email
    also references the mothers fear that the father would have her arrested at
    some point and take our daughter to Saudi. She asks the Embassy for assistance
    in obtaining a new British citizen for my daughter as her father will not
    return the one I had. Could I pay for an original copy of her birth certificate
    to come from London? And how soon can a new passport be made?

[58]

The
    father also emphasizes messages said to be sent by the mother to the paternal grandfather,
    suggesting that in July 2019 (after she had arrived in Canada), the mother wished
    to return to Dubai, acknowledging she had moved there for the child to have a
    father.

[59]

The
    mothers and fathers accounts as to why the child was in Dubai for as long as
    she was could not be more different. Undoubtedly, it would have been difficult
    to resolve the parents competing accounts on the written record before the
    application judge.

[60]

While
    it is important that applications arising from alleged child abductions move
    with dispatch, this cannot be done at the expense of justice. Although it will
    be a rare case in which
viva voce
evidence
    will be required, had this been a
Hague Convention

case, where habitual residence needed to be resolved, this
    may well have been one of those rare situations where it was necessary to hear
    some
viva voce

evidence:
I. (A.M.R.) v. R. (K.E.)
,

2011 ONCA
    417, 106 O.R. (3d) 1, at para. 125;

Dovigi v. Razi
,
    2012 ONCA 361, 110 O.R. (3d) 593, at paras. 27-28, leave to appeal refused,
    [2012] S.C.C.A. No. 348
;
Ierullo v. Ierullo

(2006), 216 O.A.C. 78, at para. 18.

[61]

Importantly,
    this was not a
Hague Convention

case and, therefore, the application judge was not
    required to determine the question of habitual residence. She answered the
    wrong question. The right question did not require resolution of these facts.

G.

THE Right Question UNDER SECTION 40(a) of the
CLRA


[62]

The
    application judge should have asked whether the child had been wrongfully
    removed to or [was] being wrongfully retained in Ontario:
CLRA

s. 40(a). A critical
    consideration in answering that question should have been the existence of the U.K.
    Consent Custody Order. That Order is not mentioned in the application judges analysis.

[63]

When
    taking that Order into account, both parents versions lead to the inexorable
    conclusion that the child was wrongfully removed to Ontario.

[64]

The
    father says that the mother abducted the child from Dubai and is now wrongfully
    retaining her in Ontario. Therefore, he says there is a wrongful removal from
    Dubai to Ontario and a wrongful retention in Ontario. His position meets the
    statutory prerequisite in s. 40(a) of the
CLRA
.

[65]

In
    the somewhat rare circumstances of this case, the mothers position also
    amounts to an acknowledgement that there has been a wrongful removal to and
    retention in Ontario. The mother does not suggest that an Ontario court should
    take jurisdiction in relation to custody or access. Rather, the mother contends
    that the November 25, 2015 U.K. Consent Custody Order remains a binding, valid
    court order. Recall that The Family Court at Central Family Court, in London,
    U.K., ordered as follows:

(a)[t]he
    child is
habitually resident in the jurisdiction of England and Wales
;
    and

(b)
neither
    party shall remove the child from the jurisdiction of England and Wales without
    the written consent of the other or order of the court
. [Emphasis added.]

[66]

The
    mother maintains that the father is in clear breach of that order, given that
    he, for all intents and purposes, confined the mother and child in Dubai by
    taking their passports and not letting them return to the U.K. at the end of
    their two-week vacation. The mother explains that she and the child are only in
    Ontario because, after the father breached the still-valid Consent Custody
    Order, and she was finally able to escape from Dubai, she did not know if she
    could return to the U.K. and stay there. While the child is a citizen of the
    U.K., the mother is only a citizen of Lebanon and Canada. Accordingly, the
    mother claims that, as a matter of necessity, and in the panic of the moment,
    she brought the child first to her family in Lebanon for a short time and then
    to her family in Ontario. She says that she deemed these to be the safest
    options.

[67]

Accordingly,
    even though the mother provides an explanation for why she is in Ontario with
    the child, she accepts the binding nature of the Consent Custody Order. That
    order sets out the means by which the parents can remove the child from England
    and Wales: variation of the court order or written consent of the non-removing
    party. Neither of these prerequisites have been met. Therefore, even on the
    mothers own version, and despite her reason for coming to Ontario (if
    believed), her position amounts to an acknowledgement that the Consent Custody
    Order has not been complied with. Accordingly, even on her version, there is a
    wrongful removal to and retention in Ontario.

[68]

Either
    way, whether on the fathers or the mothers versions, the requirements of s.
    40(a) of the
CLRA

are
    met.

H.

THE REMEDY THAT SHOULD HAVE FLOWED

[69]

By
    incorrectly applying a
Hague Convention

framework, the application judge proceeded as if she had
    no option but to return the child to her habitual residence: Dubai. Leaving
    aside that habitual residence did not need to be decided in this Application,
    the question of remedy brings into sharp focus the second fundamental
    difference between the
Hague Convention

and s. 40 of the
CLRA
.
The fact is that under s. 40, unlike under the
Hague
    Convention
,
the court is given broad discretionary powers
    when determining what order will remedy a wrongful removal to or retention in
    Ontario.

[70]

The
    mother says that the Consent Custody Order is still valid and that the father
    must return to the U.K. to vary it. The father contends that the Consent
    Custody Order is now obsolete. Despite having never obtained a variation of
    the Consent Custody Order and despite neither parent having given written
    consent to the removal of the child from England and Wales, he argues that the parties
    consensually abandoned that order when they consensually moved the child to
    Dubai.

[71]

The
    father also contends that the mothers failure to bring a s. 41(1)
CLRA

application is fatal
    to the suggestion that the U.K. Consent Custody Order governs. Section 41(1)
    reads:

Upon application
by any person in whose favour an order for the custody of or access to a child
    has been made by an extra-provincial tribunal,
a court shall recognize the
    order
unless the court is satisfied  [emphasis added.]

[72]

While
    the mother did not advance an application under s. 41(1) in the court below,
    she says that her opposition to the fathers s. 40 Application was consistent
    with s. 41(1), in the sense that the application judge should have recognized
    the U.K. Consent Custody Order as binding and the U.K. as the childs habitual
    residence.

[73]

I
    find that the existence of the U.K. order was highly relevant to the s. 40 Application.
    While the mother could have brought a s. 41(1) application, seeking an order
    recognizing the U.K. order, the absence of that application does not neutralize
    the relevance of the U.K. order for the purposes of s. 40. Indeed, recall that
    one of the illuminating principles under s. 19 of the
CLRA
, setting out the purposes of Part III
,
where
    s. 40 resides,

is the enforcement
    of custody and access orders made outside Ontario.

[74]

I
    disagree that the Consent Custody Order is obsolete. To the contrary, it is a presumptively
    valid court order that contemplates and attempts to prevent precisely the type
    of dispute that is now before us. While I accept that the parties could change
    the childs habitual residence under the terms of that order, it specifically
    addressed the only manner in which the parties could accomplish that end,
    either by way of order of the court or written consent of the non-removing
    party. Neither method was pursued.

[75]

In
    addition, while the child had not been in the U.K. for well over a year at the
    point that the Application was determined, until she left for Dubai, she had always
    lived in the U.K. Importantly, the Consent Custody Order was informed by an
    evidentiary backdrop that would still be available in the U.K., including
    parenting assessments that had been conducted by more than one professional.

[76]

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.

[77]

The
    U.K. is, of course, a
Hague Convention

signatory that subscribes to determining custody and access
    solely based on the childs best interests. As well, allowing the father to
    pursue the matter in the U.K. would show an appropriate respect for and
    enforcement of custody and access orders made outside of Ontario. It would also
    recognize the importance of avoiding the concurrent exercise of jurisdictions
    in relation to the custody of the same child. Finally, whatever the result in
    the U.K., it would act so as to discourage child abductions as an alternative
    to the proper determination of custody rights by due process. All of these
    goals are consistent with the purposes of Part III of the
CLRA
,
which are captured in s. 19 of the
Act
.

I.

DISPOSITION

[78]

For
    the above reasons, I have concluded that the order returning the child to Dubai
    cannot stand.

[79]

I
    would allow the appeal, set aside the order under appeal, and order that:

The fathers Application be stayed pursuant to
    s. 40(a)(2) of the
CLRA
on the condition that the father promptly
    commence a similar proceeding in the court that issued the Consent Custody
    Order;

In the event that court declines to take jurisdiction,
    I would order that the father may apply to the Ontario Superior Court of Justice
    to lift this stay and seek a rehearing of his s. 40 Application;

In the event that the father brings a further
    proceeding within the Ontario Superior Court of Justice respecting the child,
    nothing in this order shall prevent the mother from bringing her own
    application(s) respecting the child;

Pending further order of a United Kingdom or
    Ontario court, the child shall not be removed from the Greater Toronto Area;
    and

Pending further
    court order, the mother shall facilitate access between the child and father by
    way of phone, email, and online chat.

[80]

Unless the parties can agree on costs, I would
    order that the mother shall file and serve written costs submissions of a
    maximum of three pages in length, no later than 14 days from the date of
    release of this judgment. The father shall file and serve his responding
    written costs submissions no later than seven days following receipt of the
    mothers costs submissions. His cost submissions are also limited to three
    pages in length.

Released: P.L. April 15, 2020

Fairburn
    J.A.

I agree. P.
    Lauwers J.A.

I agree. David M. Paciocco J.A.





[1]
The
    appellant raised numerous grounds of appeal, including a constitutional
    challenge to the operative statutory provisions for the first time on appeal.
    In light of how I would resolve the appeal, there is no need to address those
    other issues.



[2]

This
    order appears to have been predicated on the assumption that the mother would
    be permitted re-entry to the U.A.E. The mother has filed fresh evidence on
    appeal that she says demonstrates her highly precarious status in Dubai.



[3]

While
    the mother also attempted to file other fresh evidence on appeal, I would
    dismiss the balance of her application as it is irrelevant to the disposition
    on appeal.


