Author: dawi

“The question on this appeal is whether Canadian law recognizes an Islamic talaq divorce (a “bare talaq divorce”), performed in Ontario and subsequently registered with Egyptian governmental agencies.

A bare talaq divorce arises from the husband’s unilateral and exclusive right to dissolve the marriage through a “private recital of verbal formula”: Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), at p. 1031; Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 F.C.R. 531, at para. 20; Abdulla v. Al-Kayem, 2021 ONSC 3562, at para. 20; Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 23. Courts have declined to recognize bare talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”: Chaudhary, at p. 1032; Amin, at para. 20; Abdulla, at para. 21.

It is not controversial that bare talaq divorces, without more, have not been recognized as valid in Canada. While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight “to address important public policy issues which can arise out of the domestic recognition of informal or religiously-based divorces”: Amin, at para. 20; Canada v. Hazimeh, 2009 FC 380, 344 F.T.R. 160, at para. 8; Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (CA IRB), at paras. 24-25. Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband’s third pronouncement of his intent to divorce. Despite its effect on the wife’s status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect.

Here, respectfully, the motion judge erred. Foreign law is a fact to be proved by expert evidence. While a foreign divorce decree granted by a competent authority is presumptively valid, the onus of proving that a foreign divorce is a foreign divorce decree granted by a competent authority is on the party seeking to rely upon it (here, the respondent): Abdulla, at para. 22. There was no expert evidence that the Egyptian governmental authorities, which authenticated the bare talaq divorce by registration, were divorce-granting authorities or that the registered bare talaq divorce was a foreign divorce decree granted by a competent authority that, under common law, was presumptively valid. Moreover, as with the Egyptian governmental registration of the bare talaq divorce, the Ontario governmental issuance of a marriage licence, following the Declaration of Divorce, did not serve to recognize the registered bare talaq divorce as a valid foreign divorce that had been granted by a divorce-granting authority, for the purposes of s. 22 of the Divorce Act.

For any part of s. 22 of the Divorce Act to be engaged and a foreign divorce recognized under Canadian law, the divorce must be granted and not only administratively registered or recognized by a competent authority. Here, there was no evidence that a competent authority granted the divorce, as required under s. 22 of the Act.”

            Abraham v. Gallo, 2022 ONCA 874 (CanLII) at 1-2, 20-23

“The purpose of the Hague Convention is to secure the prompt return of a child wrongfully removed or wrongfully retained. Article 1 provides:

The objects of the present Convention are –

1. 1. 1. a)   to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Wrongful removal or retention

Not every removal or retention is wrongful. As per art. 3 of the Hague Convention, the removal or the retention of a child from her habitual residence is wrongful when:

a)  it is in breach of rights of custody attributed to a person … 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 removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

A removal or retention is wrongful if the child was habitually resident in the country immediately before the alleged wrongful removal or retention. Therefore, habitual residence is central to the Hague Convention because it defines when a removal or retention is wrongful: see Ludwig, at para. 22.

Habitual residence

The approach to habitual residence was changed in 2018 when the Supreme Court of Canada issued its decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.R. 398. The parental intention model previously used was replaced with a hybrid model. The hybrid model considers parental intention, but also the circumstances of the child.

This court’s decision in Ludwig, incorporating the changes from Balev, outlined a two-step process to determine habitual residence. At the first stage, the court is to determine the date of the alleged wrongful removal or retention. At the second stage, the court is to look to all the circumstances, including parental intention and the circumstances of the child, to determine the “focal point of the child’s life”, having regard to the child’s links to both countries and the circumstances of the move from one country to the other. The application judge’s conclusion is entitled to deference.”

            Parmar v. Flora, 2022 ONCA 869 (CanLII) at 20-24

“Ms. Kelly’s submissions rely heavily on a view that the children are unaccustomed to spending time with their father, and that any contact should start modestly and be expanded slowly.

I place no weight on this submission.

In the same manner that a wrongful removal or withholding of a child does not alter the child’s habitual residence pursuant to section 22(3) of the Children’s Law Reform Act; a wrongful removal or withholding does not alter a child’s best interests as set out in section 24 of the CLRA. 

In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, see section 24(2.) The factors to be considered are set out in section 24(3) CLRA:

a)  the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b)  the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

c)  each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d)  the history of care of the child;

e)  the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

f)   the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g)  any plans for the child’s care;

h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i)  the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j)   any family violence and its impact on, among other things,

k)  the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

l)   the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

m) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

In the absence of family violence, or other just reason, the removal or withholding of children from the left-behind parent speaks to the need for an accelerated return to a normative parenting schedule, not a delayed return.  The parenting deficits created by the removal of a supportive, previously stable relationship must be ameliorated, not extended.”

            Bansal v. Kelly, 2022 ONSC 7049 (CanLII) at 17-21

“Ms. Nugent brings an urgent motion on an ex parte basis seeking a temporary without prejudice Order that Mr. Nugent be restrained from depleting his assets and that he preserve his assets.

Ms. Nugent deposes that she learned on Thursday December 8, 2022 that Mr. Nugent had recently taken steps to withdraw $1.25 million dollars from a specific account, which, by agreement, were not to be distributed without her consent. After separation, Mr. Nugent had agreed to put a dual signature requirement on the account, which she says Mr. Nugent has now unilaterally changed without notice to her and without her consent.

Ms. Nugent deposes that she has learned that Mr. Nugent has used the funds in question to pay off two lines of credit, as well as his Mastercard. Her information is that he has also put some of those funds in a term deposit.  Ms. Nugent points out that these transactions were not reflected in Mr. Nugent’s updated financial statement sworn December 5, 2022, for the Med-Arb process.

Ms. Nugent deposes that she is worried that Mr. Nugent will take steps to compromise her family law entitlements. She has not served him with this motion for fear that he will deplete further assets pending the hearing of a motion on notice.

On August 3, 2022, a Court Order was made which confirmed that all issues in the parties’ litigation would be submitted to Mediation-Arbitration with Gerald Sadvari. They entered into a Mediation-Arbitration Agreement on September 28 and 30, 2022. Under that Agreement, all issues in the proceeding are to be mediated, and if necessary, arbitrated.

The Mediation-Arbitration Agreement is entered into under the Family Law Act and the Arbitration Act. The Family Law Rules also apply.

Under section 6 of the Arbitration Act, the court retains jurisdiction to intervene in the conduct of an Arbitration to “assist in conducting” an arbitration, to ensure that arbitrations are conducted in accordance with arbitration agreements, and to prevent unfair or unequal treatment of parties to arbitration agreements.

Under section 8 of the Arbitration Act, the court specifically retains the power to intervene with respect to the preservation of property. That section reads: “The court’s powers with respect to the detention, preservation, and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as ion court actions.”

I have considered whether this motion should have been brought before Mr. Sadvari, on notice or otherwise. While the motion could likely be brought ex parte, given the applicability of the Family Law Rules to the any Arbitration under that Agreement, practically speaking that is not helpful. Any Arbitration Award made by Mr. Sadvari would be unlikely to be enforced by financial institutions without having been taken out as a Court Order. Meanwhile, time would pass during which further dissipation could transpire, if that is indeed happening.

In all of the circumstances, the Order sought by Ms. Nugent is, on a temporary and without prejudice basis, appropriate in the circumstances.”

            Nugent v. Nugent, 2022 ONSC 7370 (CanLII) at 1-10

“The only issue before the court was the quantum of child support. Four judges made six different orders that the appellant produce specific financial documentation. He was regularly in breach of these orders and received multiple warnings that his pleadings would be struck. As the motion judge said in her reasons, he had been recently warned that “this was his last chance”.

The remedy was not excessive. Financial disclosure in a family law case is – without doubt – one of the most important obligations. It should be automatic without the need for court intervention. This action was started in 2012. The appellant breached six orders. This court has upheld the use of r.1(8)c of the Family Law Rules, O. Reg. 114/99, in similar circumstances: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7d) 6; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7d) 374, leave to appeal refused, [2017] S.C.C.A. No. 29; Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4d) 418.”

          Sparr v. Downing, 2020 ONCA 793 (CanLII) at 3-4

“A letter rogatory is a request from a judge to the judiciary of a foreign country for the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country’s sovereignty. In this case, the request is for production of documents from corporations in Canada.

The decision to grant or refuse a foreign request is a matter of judicial discretion, entitled to deference on appeal: Presbytarian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] 275 D.L.R. (4th) 512 (Ont. C.A.), at para. 19. According to this court’s decision in Perlmutter v. Smith, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 31, the appropriate standard of review for the grant of letters rogatory is palpable and overriding error.

The authority to enforce letters rogatory is set out in the Canada Evidence Act, R.S.C. 1995, c. C-5, at s. 46(1), as well as in the Evidence Act, R.S.O. 1990, c. E.23, at s. 60(1). The requirements are:

a)   a foreign court, desirous of obtaining testimony in relation to a pending civil, commercial or criminal matter, has authorized the obtaining of evidence;

b)  the party from whom the evidence is sought is within the jurisdiction of Ontario;

c)  the evidence sought from the Ontario party is in relation to a pending proceeding before the foreign court or tribunal; and

d) the foreign court or tribunal is a court or tribunal of competent jurisdiction.

In Perlmutter, this court addressed six factors which must be considered when deciding whether to enforce letters rogatory:

• • • • • Is the evidence sought relevant?
        • Is the evidence sought necessary for trial and will it be adduced at trial if admissible?
        • Is the evidence sought not otherwise obtainable?
        • Is the order sought contrary to public policy?
        • Are the documents sought identified with reasonable specificity?
        • Is the order sought not unduly burdensome, having in mind what the relevant witnesses would be required to do and produce if the action was tried here?

This court also addressed the enforcement of letters rogatory in Actava. In that case, at para. 42, three elements relevant to the enforcement of letters rogatory were identified: (1) comity, (2) public policy of the jurisdiction to which the request is directed, and (3) the absence of prejudice to the sovereignty of the citizens of that jurisdiction. Canadian courts have refused to order testimony for use in foreign proceedings in various situations, including:

• • • • • where a request for production of documents was vague in general;
        • where discovery was sought against a non-party to a litigation in violation of local laws of civil procedure; and
        • where the main purpose of the examination was to serve as a “fishing expedition”.”

Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855 (CanLII) at 11-15

“On a motion to extend the time to appeal, the overriding principle is whether the justice of the case warrants an extension. Relevant considerations include whether the party requesting the extension formed an intention to appeal within the relevant time period, the length of and explanation for the delay, prejudice to the responding party arising from the delay, and the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.”

            Fatahi-Ghandehari v. Wilson, 2022 ONCA 858 (CanLII) at 10

“In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator.   In addition, co-operative arrangements may lead to opportunities for further family violence: see Bell v. Reinhardt, 2021 ONSC 3352, at para. 15.”

            Zychla v. Chuhaniuk, 2022 ONSC 6884 (CanLII) at 31

“In order to establish a reasonable apprehension of bias, the Applicant must show that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the Arbitrator would not decide the matter fairly. See Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.

This principle has been applied in the context of a family law mediation/arbitration process in McClintock v. Karam (2015 ONSC 1024 (CanLII)). In that decision, Gray J. stated (at paragraphs 68 to 70):

[68] As stated by de Grandpre J., one of the considerations is the “special circumstances of the tribunal”. In this case, the tribunal is a mediator/arbitrator, and he has been constituted by agreement. It must be concluded that the parties, in agreeing to mediation/arbitration, would understand the nature of the process of mediation/arbitration. The informed person, in deciding whether there is a reasonable apprehension of bias, would also understand the nature of the process of mediation/arbitration.

[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.”

            Reilly v. Zacharuk, 2017 ONSC 7216 (CanLII) at 67-68

“As the Ontario Court of Appeal set out in Westerhoff v. Gee Estate, 2015 ONCA 206, there are different types of experts who are able to offer opinion evidence. They include litigation experts, participation experts and third-party experts. Third-party experts are irrelevant to my consideration in this case.

Litigation experts are, as Simmons J.A. wrote for the court, “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” (para. 6). They are required to certify their obligations to the court with a Form 20.1 certificate. Participation experts are what Simmons J.A. described at para. 6 as “witnesses with special expertise who give opinion evidence …who form opinions based on their participation in the underlying events.” That group includes treating physicians. That group does not have to sign a Form 20.1 certificate.”

            Robinson v. Robinson, 2020 ONSC 7533 (CanLII) at 10-11