Geliedan v. Rawdah
The Ontario Court of Appeal last week, issued their decision in an interesting abduction case. It involves a 6 year old child. The Mother is a Lebanese born citizen of Lebanon and Canada. The father is a Saudi Arabia born citizen of Saudi Arabia and the UK. The daughter, while born in the UK, is also a Canadian citizen. Parties married in the UK in 2012, and shortly after the child’s birth in 2013, they separated. Parties entered into a Consent Custody Order in 2015 in the UK, which provided that the child’s habitual residence was the UK and that neither party could remove the child from the UK without written consent of the other or court order. The child was to primarily reside with the mother, but the father was to have regular weekly parenting time. Father moved to Dubai in 2015, but continued to exercise parenting time, although not regularly. In 2018 mother stated she visited *Dubai with the child for what was to be a 2 week period-she had return tickets booked. She alleges the father confiscated the child’s and her own passport. About 14 months later the mother surreptitiously removed the passports from the father’s home when he was out of the country. In May 2019 the mother took the child to Toronto via Lebanon. At the lower court the father successfully argued that the child’s Habitual Residence had become Dubai prior to the mother’s wrongful removal to Ontario. The father applied under the Children Law Reform Act [CLRA]. The Ontario statute, unlike Alberta’s Extra Provincial Enforcement of Custody Orders Act [EPECOA], uses terminology like Habitual Residence, whereas the Alberta statute uses ‘real and substantial connection.’ The Court of Appeal criticized the lower court judge’s reference to the Hague Convention’s legal framework, where the U.A.E. is not a Hague Convention signatory [The UK Supreme Court in Re: J. (A Child) (Custody Rights:Jurisdiction)  UKHL 40, per Baroness Hale stated at paragraph 22, “……there is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which are not parties to it.”]. The Appeal Court held that it was an error for the lower court judge to apply a Hague Convention approach when determining this matter under the CLRA. A critical difference between the CLRA and the Hague Convention, is that if the court finds a wrongful removal or retention, under the Hague Convention, the court must order the return of the child unless a defence applies. The CLRA does not obligate the court to order a return in such circumstances. The Appeal Court also noted that “  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 based on the child’s best interest…..”There was a dispute as to whether the U.A.E. would apply a best interests approach. In this case the mother was Christian and the father Muslim. The mother’s expert opined that under Sharia law, the parents could be treated very differently in terms of their suitability as a custodial parent. The Appeal Court stated that habitual residence need not have been decided in this case, and that the father’s application be stayed pending his proceeding in the UK court pursuant to the Consent Order for the return of the child to the UK. Only if the UK court declines jurisdiction may the father reapply to the Ontario court.