M.L. Applicant And: G.M.D. Respondent, 2020 NLSC 21

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : M.L. v. G.M.D. , 2020 NLSC 21 Date : February 6, 2020 Docket : 201903G0083 Between: M.L. Applicant And: G.M.D. Respondent Before: Justice Glen L.C. Noel Place of Hearing: Grand Falls-Windsor and St. John’s, Newfoundland and Labrador Dates of Hearing: December 4, 5 and 19, 2019

Summary: The mother of a 15-year-old, who recently turned 16, applied for an order under

section 45 of the Children’s Law Act preventing the child’s removal from the province by the father. Upon direction from the Court, the Application also considered sections 50 and 51 of the Children’s Law Act and whether the Court could supersede extra-provincial orders. The mother and son are living in Newfoundland and the father in Pakistan.

Extra-provincial orders of the courts of Pakistan compelled the mother “to produce” the child in Pakistan to answer for the failure to comply with a Pakistani court order giving the father the right of visitation with the child in Pakistan during a portion of his school holidays. The child was not prepared to return to Pakistan after spending 18 months there against his wishes, and suffering post-traumatic stress disorder from the experience. The father contested the Court’s jurisdiction to interfere with the Pakistani court proceedings and to supersede the extra- provincial orders.

Alternatively, he sought enforcement of the orders.

The evidence established serious psychological harm would occur to the child if he had to return to Pakistan against his wishes. The Court superseded the extra-provincial orders, and held the mother was not compelled to produce the child in Pakistanwithout his consent and willingness to go. The mother was ordered to encourage the child to make contact with the father and visitwith him during school holidays in Newfoundland or elsewhere. The minor was not prevented from going to Pakistan when hewas ready, willing, and able. Appearances: Robert H. Fedder Appearing on behalf of the Applicant Joshua J.G.

Handrigan Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Kielley v. General Hospital Corp. (1999), (NL CA), 183 Nfld. & P.E.I.R. 1, 556 A.P.R. 1(Nfld. C.A.); Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; Kong v. Song, 2019 BCCA 84; Smith v. Smith, 2019 SKQB280; Office of the Children’s Lawyer v. Balev, 2018 SCC 16; Moussa v. Sundhu, 2018 ONCJ 284; Maldonado v. Feliciano, 2018 ONCJ652; McKay v. Labelle, 2019 ONCJ 155; Z.A. v. A.A., 2019 ONSC 5601; Bolla v. Swart, 2017 ONSC 1488; Young v. Young, (SCC), [1993] 4 S.C.R. 3 STATUTES CONSIDERED: Children’s Law Act, R.S.N.L. 1990, c.

C-13; Family Law Act, R.S.N.L. 1990, c. F-2; Age of Majority Act,S.N.L. 1995, c. A-4.2; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) TREATIES CONSIDERED: Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S.1983 No. 35, 19 I.L.M. 1501 reprinted in Children’s Law Act, Sch. REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The central focus of this case is jurisdiction over a 16-year-old child of the parties, and whether this Court can or shouldsupersede extra-provincial orders compelling the child’s attendance in Pakistan.

OVERVIEW [2] J. was born on 3 January 2004 in Pakistan and is the youngest child of the Applicant, M.L. and the Respondent, G.M.D. Helives in Newfoundland and Labrador with his mother and has been attending school in the province since the age of five. He is thesubject of court orders arising from ongoing guardianship proceedings his father commenced in Pakistan initially without the mother’sknowledge.

The orders require him to go to Pakistan despite his fear and unwillingness to go. [3] M.L. filed an Originating Application and Emergency Interim Application on 3 June 2019 for an order under subsections 45(2)and (3) of the Children’s Law Act, R.S.N.L. 1990, c. C-13 (the “CLA”) preventing J.’s removal from the province by G.M.D. Isubsequently directed and ordered counsel for the parties to consider sections 50 and 51 of the CLA dealing with the Court’s authority tosupersede an extra-provincial order. [4] M.L. is from Finland and G.M.D. from Pakistan.

They met in the USA while studying there and married in Lahore, Pakistanin 1997. They remain legally married but have been living separately for several years. G.M.D. continues to live and work in Pakistan. [5] J. has an older brother and sister, also born in Pakistan. The family lived there with their parents until they immigrated toCanada in September 2009. G.M.D., on the account of security concerns in Pakistan at the time, desired for his wife and children tomove to Newfoundland, where he had siblings already residing.

He stayed in Pakistan because of his work as a senior and high-rankingpolice officer involving counter-terrorism, and would visit occasionally with the family in Newfoundland. M.L. and the childrenreceived their Canadian citizen in 2014. [6] Life was normal and happy for J. until December 2016. He was living with his mother and siblings in a central Newfoundlandcommunity, attending school and playing sports with his friends.[1] He and his brother went to Pakistan during the school holidays on21 December 2016 to visit their dad.

They were expecting to return home five days later on 26 December in time to watch the IIHFWorld Junior Championship. Against their wishes, they spent 18 months in Pakistan, missing all of their schooling during that time.

[ 7 ] M.L. ultimately secured an order of interim custody of J. and her older son [2] in January 2018 after filing a habeas corpus (wrongful detention) petition and appeal to Pakistan’s highest appellate court, the Supreme Court of Pakistan. The Supreme Court remitted the guardianship petition to the Guardian Court for determination on the merits. [ 8 ] More months went by until on 1 June 2018 the Guardian Court of Lahore, Pakistan appointed M.L. guardian of person of J. and allowed her to take him back to Canada.

The order was subject to her providing a surety bond of ten million Pakistani Rupee (approximately $100,000 Canadian) with one local surety. She managed to put the necessary surety in place and then return with J. and her older son to Newfoundland. [ 9 ] That same order of the Guardian Court gave G.M.D. visitation rights. J. was to spend sixty percent of his summer vacations and sixty percent of his winter vacations with G.M.D. in Pakistan.

Both M.L. and G.M.D appealed the order and the appeals are still pending. [ 10 ] G.M.D. submits the District & Sessions Court (appeal court) suspended the order of 1 June 2018 pending the appeals. However, subsequent orders from 7 May and 8 August 2019 directed M.L. and her surety “to produce” the minor, J., before the court in Pakistan (the “extra-provincial orders”). [ 11 ] All the legal wrangling has taken a terrible toll on J.’s mental health and the relationship with his father. It is sad and does not have to be this way. There is urgent need for reconciliation between father and son.

I am afraid the prospect of reconciliation will be futile as long as J. is forced to do things against his wishes. [ 12 ] I have considered J.’s maturity level and his views and preferences in not wanting to go back to Pakistan. Compelling his return would cause serious psychological harm to him. This Court has an obligation to respect and protect J.’s wishes and best interests, and any order will do so accordingly.

Issues [ 13 ] The essential dispute involves the jurisdiction of this Court to prevent J.’s removal from the province, and in so doing supersede the extra-provincial orders. [ 14 ] The issues I must decide are: 1. Has M.L. satisfied the requirements of subsections 45(2) and (3) of the CLA to prevent the removal of J. from the province? 2. Can this Court supersede the extra-provincial orders on the conditions identified in

section 50 of the CLA , specifically: (

i) Whether there has been a material change in circumstances that affects or is likely to affect the best interests of J.?; (ii) Whether J. is habitually resident in Newfoundland and the appropriate legal test for determining habitual residence?; and (iii) If J. is not habitually resident, whether the terms of subsection 50(1)(

b) are satisfied? 3. Should this Court decline jurisdiction under subsection 50(2) of the CLA because Pakistan is the more appropriate jurisdiction, and refuse to interfere with the extra-provincial orders? 4. Would J. “suffer serious harm” as per subsection 51 (

c) of the CLA if he is removed from the province? 5. What consideration should I give to the late request to rely upon

section 49 of the CLA for enforcement of the extra- provincial orders for return of J. to Pakistan? 6. Should I make any order to encourage reconciliation and contact between J. and his father, while recognizing J.’s age, wishes, and best interests? [ 15 ] I will also deal with costs. Background Procedural History [ 16 ] On 6 June 2019 pursuant to Rule F17, I gave a Temporary Order ( Ex Parte ) preventing G.M.D. from removing J. from the province and with a return date in seven days. M.L. was to arrange for personal service of the Application and Order upon G.M.D.

On 13 June 2019, because of the difficulty of effecting service, I ordered alternative service on G.M.D.’s Pakistani counsel and the hearing date set over to 4 July. [ 17 ] In my Order of 4 July 2019, I granted G.M.D.’s request for an adjournment and set the hearing for 14 August 2019. In that Order, I put G.M.D. on notice to consider whether he wished to make application under the Convention on the Civil Aspects of International Child Abduction , 25 October 1980, Can. T.S. 1983 No. 35, 19 I.L.M. 1501 reprinted in Children’s Law Act , Sch. (commonly referred to as the “ Hague Convention ”), in accordance with

section 54 of the CLA . No such application is before this Court.

[ 18 ] On 14 August 2019, I heard from G.M.D. and his Pakistani counsel. They wanted further time to prepare for the hearing. The parties agreed to

schedule a two-day hearing on 8 and 9 October 2019. [3] I ordered filing dates for briefs. G.M.D. was required to file any further evidence he was intending to rely upon in the form of affidavit with exhibits annexed. He and M.L. were to be available for cross-examination, as were J.’s guidance counsellor and treating psychiatrist. [ 19 ] My Order of 14 August 2019 specifically directed the parties to address in their briefs sections 50 and 51 of the CLA .

Counsel for G.M.D. readily conceded the parties had fair notice and opportunity to respond, and a formal amendment to M.L.’s Application was not necessary. [ 20 ] The Order of 14 August 2019 also required J. to attend the hearing, so I could interview and ascertain his views and preferences, in accordance with

section 71 of the CLA . I subsequently varied the order by further Order dated 21 October to have J. interviewed by Family Justice Services (“FJS”) under

section 36 of the CLA . [ 21 ] There are three reasons for having FJS conduct the interview. Firstly, it is the general practice of our Court to have interviews of children of age-specific years, where warranted, carried out by professionals with special expertise at FJS rather than by judges. Secondly, subsection 71(4) of the CLA gives the child entitlement to counsel when a judge is conducting the interview.

I did not have the benefit of time to explore through the Office of the Child and Youth Advocate and/or Legal Aid whether resources were available for the appointment of independent counsel in private parenting disputes. Moreover, I had serious concern that putting J. through an interview by the Court, even if conducted by me alone in chambers, would cause him further trauma. Judges at various levels of the Pakistani courts have already interviewed him while he was in Pakistan. [ 22 ] The Temporary Order preventing G.M.D. from removing J. from the province has remained in place.

G.M.D. seeks to have the order vacated. M.L. asks that the Temporary Order continue as a final order. Decisions of the Pakistani Courts [ 23 ] G.M.D. argues I only need look to the Pakistani court orders, and it is inappropriate for me to go behind the orders and consider the factual findings and reasoning of the Pakistani court decisions. I disagree, and his position is inconsistent with how he presented his response to the Application. He filed an Affidavit attaching as an Exhibit the Supreme Court of Pakistan decision dated 24 January 2018.

Counsel for G.M.D. put to M.L. during cross-examination an excerpt from the decision (at page 18), that noted J. loves his “father very much and would be happy to return to Pakistan during holidays” to spend time with him. It would be unfair for G.M.D. to use only what favors his position, but not permit reliance upon contrary findings and comments from the decisions. [ 24 ] The answer as to whether there is merit to the Application and J.’s expressed fear of returning to Pakistan lies squarely in the Supreme Court of Pakistan decision.

The highest court of Pakistan found (at page 12) several “factors point towards manipulation, deceit and lack of bona fides on the part of” G.M.D. He “used devious and deceitful methods” to convince J. and his older son to come to Pakistan (p. 11). He “tricked the children through various contrived reasons to stay beyond 26.12.2016” (p. 4). He then kept the children in Pakistan against their will.

The Supreme Court determined the lower court had failed “to determine the real wishes of the children” (at p. 21). [ 25 ] It is clear from the decision that the law and constitution of Pakistan protects and safeguards the interests of minors to ensure their physical safety, emotional well-being, and welfare. Documentation Supporting the Application [ 26 ] In support of her Application, M.L. relied upon the following documentation: 1) records from the Pakistani courts, including certain filings of M.L., decisions, and orders; 2) the medical reports of Psychiatrist, Dr.

Prince Ajiboye dated 15 and 17 April 2019; 3) letter from Guidance Counsellor Vanessa Smith dated 26 March 2019; and 4) a letter of 26 March 2019 signed by J. of the same date addressed to the court in Pakistan. [ 27 ] Since I am placing considerable reliance in these reasons on J.’s own views and wishes, I quote his letter in its entirety: I’ve been told by my mother that I would have to travel to Pakistan during the Easter vacations to stay with my father. This is something which my mother thinks would be legally binding upon me.

Since then I’ve talked to my guidance counselor at my school as well as other teachers. I think it would be extremely unfair if any court of law forces me to travel out of Newfoundland, where I have a school to attend and where I’m studying, and when there is no guarantee for my returning safe and sound from Pakistan. I love my school and Newfoundland where I live. The last time I was in Pakistan I spent sleepless nights and frightening times at my father’s house fully guarded by police guards and what not. The very thought of travelling and staying in Pakistan even for a few short days is giving me nightmares.

As I understand my father is quite resourceful and can travel to Canada without any problem. I think he should come to visit me and the rest of his family. I’ll be very happy to meet him at a neutral place where I can’t be forced to do anything against my will. I’m really scared of being killed if I visit Pakistan. If something happens to me, no court of law in this world will be able to bring me back to life. Please don’t make an order which I cannot comply with. My father can visit and meet me in Canada. Please ask him to travel to meet me.

Thank you. FJS Report on J.’s Views and Preferences [28] Angel Compton-Osmond, Family Court Counsellor and Registered Social Worker with FJS, conducted the interview of J. on 7and 12 November 2019. The report dated 26 November 2019 (the “FJS Report”) indicated J. presents as respectful and polite. Shenoted, “[h]e is very articulate, forthcoming, and mannerly in his communicative approach” (at page 4). [29] Ms. Compton-Osmond explained to J. the purpose of her meeting with him. She asked questions to understand his time spent inPakistan from 2016 to 2018, and to record his wishes for the future.

She told J. a report would be prepared and submitted to me, andshared with his parties and counsel.[4] J. stated he understood and consented to the written recording of his dialogue. [30] In this decision, I am only going to disclose from the FJS Report that which is necessary in support of my reasons. The partiesare aware of the content and it would be contrary to my aim for reconciliation between J. and his father, if I were to reveal J.’s sheerfrustrations with his father over the court proceedings and orders requiring his attendance in Pakistan.

It is rather heart-wrenching toobserve the deterioration that has occurred in the father-son relationship. Evidentiary Rulings [31] I made three evidentiary rulings during the course of the hearing. [32] I refused to allow counsel for G.M.D. to put the same excerpt to Dr. Ajiboye from the Supreme Court of Pakistan decision as hedid with M.L. Dr. Ajiboye testified he had not reviewed or placed any reliance on any documents or decisions from the Pakistani court. Dr.

Ajiboye diagnosed J. as suffering from symptoms suggestive of post-traumatic stress disorder (“PTSD”) from his time in Pakistanbetween December 2016 and June 2018. The diagnosis was arrived at from two interviews, one that was conducted alone with J., andthe other with M.L. in attendance. He did not review or have any reason to read any decisions or any documents filed in the Pakistanicourts. I saw no basis for allowing counsel to question Dr. Ajiboye on a legal document. Further, it would be unfair to permit oneexcerpt from the decision without Dr.

Ajiboye having the benefit of reviewing the entire 22-page document in context. [33] To ensure the Court could be confident that we had the most recent and applicable extra-provincial orders, I directed all ordersof the Pakistani courts be filed.

Counsel for M.L. objected during final submissions, when counsel for G.M.D. sought leave to file a“List of Documents Arising from Judicial Proceedings in Pakistan.” I allowed the documents to be entered as part of the record, since Isaw no prejudice to M.L., and it did give a more complete record of developments and orders in Pakistan than had previously been filed. [34] The final evidentiary ruling disallowed counsel for G.M.D. from entering further evidence in closing submissions. M.L.’scounsel objected and relied upon paragraph 109 of Kielley v.

General Hospital Corp. (1999), (NL CA), 183 Nfld. &P.E.I.R. 1, 556 A.P.R. 1 (Nfld. C.A.) in support of his position that the test for the introduction of new evidence had not been met. First,I agree that the evidence was available and could have been entered at the commencement of the hearing. Second, the new evidencewould not have altered my decision.

Third, the proposed new evidence was not so important to require its admission in the interest ofjustice, since there is no prejudice to G.M.D. in the refusal to allow these documents into evidence. [35] Two documents dated 28 October 2019 related to a ban on Pakistani government officials travelling abroad and instructions onseeking such leave. I accept G.M.D.’s evidence that it is very difficult for him to travel out of Pakistan other than to sacred holy placesfor religious reasons.

He would be required to get special exemption and, if permitted, it would be for a limited period. [36] G.M.D. wanted photos and video entered of J., showing him smiling and experiencing happy times while he was in Pakistanwith G.M.D. between December 2016 and June 2018. J. has previously indicated his love for his dad, and he loves his brother who wasin Pakistan with him throughout this period.

I have no difficulty accepting, despite profound discontentment of being held in Pakistanand missing school and his friends back in Newfoundland, there were times J. would no doubt have been smiling and having fun atfamily gatherings in Pakistan. analysis Issue 1 – Has M.L. satisfied the requirements of subsections 45(2) and (3) of the CLA to prevent the removal of J. from the province? [37] If M.L.’s Application had been grounded only on subsections 45(2) and (3) of the CLA, I would have vacated the TemporaryOrder following the hearing as per Rule F17.07(4)(

b) and dismissed the Application. [38] Subsection 45(2) of the CLA requires a Court to be “satisfied upon reasonable and probable grounds that a person entitled toaccess to a child proposes to remove the child from the province and is not likely to return the child to the province.” G.M.D., as thefather of the child, is entitled to access to J., notwithstanding the appeal and any suspension of the 1 June 2018 Guardian Court ordergiving him the legal right to visitation.

G.M.D. insists he wants to exercise his right of access but that visitation should occur in Pakistan. [39] G.M.D.’s Affidavit filed on 15 November 2019 (at para. 8) confirms he sought to bring J. to Pakistan in compliance with ordersof the courts in Pakistan. He provided funds for J. to travel to Pakistan and live with him during the summer of 2019. This lends supportto M.L. having reasonable grounds to bring her Application seeking the prevention of the removal of J. from Newfoundland by G.M.D.

Nevertheless, I am satisfied after hearing G.M.D.’s testimony that he has no intention to follow through with any attempt to force J. togo to Pakistan against his wishes, unless this Court so ordered. [40] There is no evidence to establish how G.M.D. would go about executing a plan for J.’s forced removal. G.M.D. would have tocome up with a scheme to trick or apprehend his 16-year-old son and take him to Pakistan.

Counsel for M.L. concedes there is no air ofreality to the surreptitious removal of J. from the province. [41] Had I made an order under subsection 45(2), there are certain things the Court may require done under subsection 45(3). I

agree with counsel for G.M.D. that none of the provisions stipulated in subsection 45(3) are applicable in these circumstances. Withregard to subsection 3(

d) on delivery of the child’s passport and other travel documents, M.L. testified J.’s Canadian passport has beeninvalidated. G.M.D. indicated J.’s passport and travel documents are with the court in Pakistan. Issue 2 – Can this Court supersede the extra-provincial orders on the conditions identified in

section 50 of the CLA? [42] For this Court to supersede an extra-provincial order under subsection 50(1) of the CLA three conditions have to be met. Theremust be a material change in circumstances affecting the best interests of the child. Secondly, under subsection 50(1)(

a) the child ishabitually resident of the Province; or alternatively, the Court must be satisfied of the factors specified in subsection 50(1)(b). (

i) Whether there has been a material change in circumstances that affects or is likely to affect the best interests of J.? [43] Both parties agree the test for determining “a material change in circumstances” is as defined by the Supreme Court of Canadain Willick v. Willick, (SCC), [1994] 3 S.C.R. 670. The nature of the change, the Court held at paragraph 22 “means achange, such that, if known at the time, would likely have resulted in different terms.” [44] It is applying the test to the evidence that the parties part ways.

G.M.D. asserts the Guardian Court in Pakistan had before itsubstantially the same evidence that exists now, when making the order for visitation to occur in Pakistan. I agree with M.L. that there issignificant new evidence affecting J.’s best interests and negating his return to Pakistan for visitation with his father or otherwise at thistime. [45] The most profound evidence comes from J. himself. He is refusing to go to Pakistan. He provided a cogent explanation for hisrefusal, and his fear of being kept again in Pakistan against his wishes.

The FJS Report (at page 9) recorded him as stating, among otherinsightful statements he made to Ms. Compton-Osmond, as follows: “I just can’t go back there. This is my home where I’ve lived for10 years now. I have built relationships with my friends in school. I have my siblings and my mom. I can’t leave all this behind.” Hefurther stated (at p. 10), “If I am forced to go back…. I am not going to go. I’ll refuse to get on a plane.” [46] How do I reconcile J. telling judges in Pakistan during his time there that he loved his dad and would be willing to visit him inPakistan during school breaks?

The FJS Report sheds light on this. J. did not want to let his dad down. He loved his father, and hewanted a means to stop the court process and return home to Newfoundland. [47] I reject any suggestion on the part of G.M.D.’s counsel I should give little weight to J.’s “hearsay statements” (made outside ofcourt and not under oath or affirmation). I give substantial weight to the views and preferences of J. The courts of Pakistan from myreview of the decisions on record determine custody and access on the same basis as this Court, that is, the best interests of the child.

Ifind J.’s present wishes make for a material change and would likely have resulted in different visitation terms, without a requirement togo to Pakistan. [48] I also reject G.M.D.’s testimony that M.L. has tainted the mind of J. and has unduly influenced his views, turning him againsthis father and Pakistan. I accept M.L.’s evidence that she loves the country of Pakistan, did not favor immigrating to Canada in 2009,and always encouraged the children to have a connection with their dad and Pakistan. She described Pakistan as a beautiful country withwonderful people and cultural and religious traditions.

G.M.D.’s own doing has led to the views J. has formed of his father and hisrefusal to return to Pakistan. [49] J.’s meeting with Vanessa Smith, the Guidance Counsellor at his school, when considered with the totality of the evidence,reflects a material change in circumstances. M.L. contacted the school Principal out of concern for her son’s emotional well-beingregarding his having to go to visit his father over Spring/Easter Break (18-29 April 2019). Ms. Smith met with J. at the request of thePrincipal.

She recorded in a letter to the District and Sessions Judge at Lahore (Pakistan) that J. asserted to her he “mentally cannothandle” the thought of returning to Pakistan to visit his father and wants to remain in Newfoundland with his mother. For a then-15-year-old to be expressing such concern is new evidence that the Guardian Court would not have had at the time of the visitation order on 1June 2018. [50] I acknowledge G.M.D.’s position that District and Sessions Judge made the orders compelling J.’s attendance notwithstandingreceipt of such letter.

However, the letter from the Guidance Counsellor taken together with the psychiatrist evidence establishes therequisite material change. [51] The psychiatrist evidence now before me had never been considered by the courts of Pakistan. J.’s diagnosis and treatment forPTSD arises from his experience in Pakistan. Dr. Ajiboye stated, “He lost 18 months of his life which he can never get back.

He fellbehind in his schooling and unable to progress successfully with his education.” The thought of returning to Pakistan causes J. poorconcentration and attention, irritability, anxiety attacks, hypervigilance (over fear of kidnapping), diminished interest/participation insignificant life activities and sleep disturbances with bad dreams/flashbacks.

The impact of such symptoms necessitating medicalintervention represents a serious material change affecting any consideration of J.’s best interests. (ii) Whether J. is habitually resident in Newfoundland and the appropriate legal test for determining habitual residence? [52] I must decide if J. is habitually resident in Newfoundland, and what legal test to apply for habitual residence. [53] There are two approaches. M.L. relies solely on the applicable provincial statutory provisions for determining J.’s habitualresidence, as was done in two recent non-Hague Convention cases: Kong v.

Song, 2019 BCCA 84 and Smith v. Smith, 2019 SKQB 280. G.M.D., on the other hand, argues for the Balev approach, as outlined in Office of the Children’s Lawyer v. Balev, 2018 SCC 16. Kongand Smith both rejected the Balev approach.[5] [54] Regardless of what approach I apply, the result is the same. J. is habitually resident in the province. I will explain why. [55] First, the definition of habitual residence is set out in

section 28 of the CLA. The relevant

part is: “

(2) A child is habitually

resident in the place where he or she lived … (

b) where the parents are living separate and apart, with 1 parent … under a court order.” I reject the argument of counsel for G.M.D. that

section 28 only applies to situations where there is no pre-existing order. Since the reference to “court order” in subsection 28(2)(

b) can only mean a pre-existing order. There may be some merit that the “court order” referenced therein is not an extra-provincial order. “Court” is defined in subsection 2(1)(

a) to mean the Trial Division [6] or the Provincial Court. J. is living with M.L. “under a court order” but it is an extra-provincial order of the Guardian Court in Pakistan. [ 56 ] Because of the uncertainty on whether the statutory definition for habitual residence in the CLA applies, Counsel for M.L. relies on the definition for “the domicile of a person who is a minor” in

section 76 of the Family Law Act , R.S.N.L. 1990, c. F-2 (the “ FLA ”). Subsection 76 (

b) stipulates the minor’s domicile is “where the minor habitually resides with 1 parent only, that parent’s domicile.” It is clear under the FLA that J.’s “domicile” is Newfoundland. [ 57 ] The FLA deals with not only matrimonial property (Parts I & II), family support (Part III), domestic contracts (Part IV), but also “Amendments to the Common Law” (Part V). [7] It is under

Part V that

section 76 appears. [ 58 ] I conclude the operative definition for determining habitual residence is the statutory provisions of both the CLA and FLA when read together. J. is habitually resident of Newfoundland by the governing legislation. [ 59 ] If I am wrong on statutory habitual residence, I find J. is also habitually resident in this jurisdiction under the Balev approach. [ 60 ] In Balev , a Hague Convention case dealing with cross-border removal of children, the Supreme Court of Canada rejected the traditional reliance on the “parental intention” approach in favor of a hybrid approach.

There is no definition of habitual residence under the Hague Convention . A judge determining habitual residence must address all relevant considerations, incorporating a child-centered approach along with consideration of parental intentions. [ 61 ] G.M.D. claims under the Balev approach, the relevant considerations establish J.’s habitual residence is Pakistan. The parental intention formed in or about April 2016, he argues was for M.L. to return to and settle in Pakistan with the children. I accept G.M.D.’s evidence that in his mind and heart that was his understanding of what he believed would occur.

However, M.L. says that while she wanted the children to spend more time with their father in Pakistan, it was not her intention to move the children back to Pakistan contrary to their wishes. The children did not want to leave their home, friends, activities, and schooling in Newfoundland. I find there was no mutual parental intention to move the family back to Pakistan in 2016. [ 62 ] G.M.D. points to other considerations to establish J’s habitual residence is Pakistan rather than Newfoundland. I ought to give paramountcy to all three children being born in G.M.D’s home country.

J. himself lived a significant period of his life in Pakistan. The family emigrated from Pakistan due to concerns over terrorist attacks, and no such concerns now exist. M.L. herself had no intention or desire to be in Canada. [ 63 ] Under the hybrid approach in Balev , I am most influenced in this case by the child’s age and wishes.

The Hague Convention ceases to apply when a child attains the age of 16 years. [8] In this province, while a person remains a minor until attaining the age of majority at 19, [9] a child of 16 or more years has the right to withdraw from parental care. [10] This mature young man calls Newfoundland “my home” and says he “can’t go back there [Pakistan].” That is the most fundamental reason that I declare he is “habitually resident” in Newfoundland rather than Pakistan. (iii) If J. is not habitually resident, whether the terms of subsection 50(1) (

b) are satisfied? [ 64 ] If I had held J. is not habitually resident in the province, I am nevertheless satisfied the terms set out in subsection 50(1) (

b) have been met allowing me to supersede the extra-provincial orders to compel his attendance in Pakistan. The required terms are: (

i) J. was physically present in the province at the start of the Application; (ii) J. no longer has a real and substantial connection with Pakistan; (iii) substantial evidence concerning J.’s best interests is available in Newfoundland; (iv) J. has a real and substantial connection to Newfoundland; and (

v) on a balance of convenience, it is appropriate for jurisdiction to be exercised in the province. [ 65 ] The only real challenge counsel for G.M.D. raised under subsection 50(1) (

b) is on the basis of (ii), that J. still has “a real and substantial connection with the place where the extra-provincial order was made.” I do not wish to undermine the importance and value of a child born in Pakistan to a Pakistani father and Muslim parents [11] , having a strong connection to the country in which he was born and spent a fair amount of his young life. He would have experienced family traditions as well as religious and national holidays while in Pakistan. [ 66 ] I cannot however conclude J. continues to have a real and substantial connection to Pakistan.

He has not been back to Pakistan since June 2018. He did none of his schooling in Pakistan. The only family connections remaining in Pakistan are his father and paternal grandmother. [12] Whatever occurred in Pakistan has not left him feeling close to either his dad or grandmother. He developed no lasting friendships in Pakistan. [ 67 ] The findings of the Guardian Court decision (at page 24), awarding M.L. custody, further highlights J.’s lack of real and substantial connection to Pakistan.

The court in Pakistan points to the lack of evidence from G.M.D. on “what he has done for the welfare of minors (J. and his brother) relating to their social, emotional, religious, and educational matters.” Likewise, G.M.D. has put forth no cogent evidence before this Court to convince me J. continues to have a real and substantial connection to Pakistan. [ 68 ] I am also satisfied, as per subsection 50(1)(b)(

v) that “on the balance of convenience,” it is appropriate for Newfoundland to

exercise jurisdiction. All evidence, other than G.M.D.’s own evidence, relating to J.’s best interests comes from witnesses and documentation within the province, including school and medical. G.M.D.’s evidence is of limited value in ascertaining J.’s best interests, since he has not seen or had any contact with J. since June 2018.

Issue 3 - Should this Court decline jurisdiction under subsection 50(2) of the CLA because Pakistan is the more appropriate jurisdiction, and refuse to interfere with the extra-provincial orders? [ 69 ] Even when, as here, the requirements of subsection 50(1) are met allowing this Court to supersede the extra-provincial orders, I must still decide under subsection 50(2) whether to “decline to exercise” jurisdiction where “it is more appropriate for jurisdiction to be exercised” in Pakistan.

The strongest argument of G.M.D. is there is no justification for this Court to interfere with the court process and orders in Pakistan, and it would be wrong for me to do so. Having found there is no risk G.M.D. is going to remove J. from Newfoundland contrary to his wishes, he argues I should simply dismiss M.L.’s Application and allow the proceedings in Pakistan to unfold and decline jurisdiction. [ 70 ] G.M.D.’s position finds some support in the purpose of the legislation. Courts must strive to avoid jurisdictional disputes and interference with extra-provincial orders in custody and access disputes.

Subsection 25 (

a) of the CLA mandates this Court to determine “incidents of custody of and access to” children based on their “best interests”. The extra-provincial orders in question are “incidents of” the guardianship proceedings and custody and access dispute before a court outside the province. Subsection 25 (

b) requires that I avoid “the concurrent exercise of jurisdiction … unless there are exceptional circumstances,” and “refrain from exercising or declining jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection”. This is not a case requiring the discouraging of the abduction of a child, as per subsection 25 (c). [ 71 ] G.M.D.’s argument for me to decline jurisdiction must fail for three reasons.

We have a case here where there are “exceptional circumstances;” J. has a much “closer connection” to Newfoundland than Pakistan; and thirdly, it is not in J.’s “best interests” for me to decline jurisdiction, as I am in a much better position presently with the evidence before this Court to assess his best interests. [ 72 ] The “exceptional circumstances” are J. would never be subject to the extra-provincial orders had G.M.D. not underhandedly brought the initial guardianship proceedings in Pakistan.

The order for visitation to take place in Pakistan came because of proceedings in my view he ought never to have commenced. J. was most contented with his life living with his family in Newfoundland. I accept M.L.’s evidence that she wanted her boys to have a stronger connection to their father and Pakistan, and would have continued to so encourage her children. The perverse outcome of G.M.D.’s inappropriate actions was, instead of achieving a more meaningful and loving relationship with J., a fractured and unsettling relationship developed between him and his son.

But for G.M.D.’s unusual and exceptional actions, J. would not find himself in a situation where he has to go back to Pakistan unwillingly. [ 73 ] The “closer connection” J. has to this province for any determination of his present needs and best interests is obvious and apparent. All of his schooling has taken place here; his mother, siblings, and other relatives are in Newfoundland; and all of his friendships, and the sporting and other activities he enjoys with them, are as well.

The FJS Report reflects his future goal of pursuing studies in medicine or engineering in this province, further reflecting his stronger and closer connection to Newfoundland than Pakistan. [ 74 ] J.’s “best interests” requires this Court to exercise jurisdiction in the context of the most current available evidence. I assess the evidence of J.’s best interests cognizant that the Senior Judge of the Guardian Court in Lahore in his decision of 1 June 2018 (at page 24) also took account of the wishes and best interests of the child.

He concluded in his ruling, awarding custody of J. and his older brother (then a minor) to M.L.: “The available evidence reflect that minors are grown up boys who apparently are also confident and well groomed. The minors of such age cannot be compelled to live with the parent against their wishes rather their wishes should be respected.” [ 75 ] I am not going to decline jurisdiction when all the most current and “available evidence” is before me and I am in a better position to decide the child’s best interests. Issue 4 – Would J. “suffer serious harm” as per subsection 51 (

c) of the CLA if he is removed from the province? [ 76 ] The dominant factor in my reasons for superseding the extra-provincial orders is the serious psychological harm that he would suffer, if he is removed from the province and compelled to go to Pakistan against his wishes.

Section 51 of the CLA permits a court to “supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on a balance of probability, suffer serious harm if … (

c) the child is removed from the province”. However, the extra-provincial orders are characterized, they require J.’s removal from the province “to produce” him before the courts of Pakistan or to comply with G.M.D.’s “right of visitation” in Pakistan. [ 77 ] Bolla v. Swart , 2017 ONSC 1488 dealt with the

interpretation of a

section of the Ontario legislation equivalent to our subsection 51 (c).

It was noted (at para. 40) the nature of the “[h]arm to the child can be physical or psychological, but it must reach a certain threshold.” The degree of harm must be substantial to the extent of placing the child in “an intolerable situation.” [ 78 ] The evidence on a balance of probability establishes J. has suffered serious psychological harm from his 18 months confined in Pakistan, and the orders requiring him to go to Pakistan places him in an “intolerable situation.” On the other hand, the evidence fails to establish J. would suffer the risk of physical harm to his person and safety if he were to return to Pakistan. [ 79 ] I accept the evidence of G.M.D. that he would not cause physical harm to his own child.

I also accept as a high-ranking police officer he has the benefit of security detail and guards that would ensure J.’s safety and protection in Pakistan. I observed when G.M.D. was giving his evidence, during the hearing via video link from Pakistan, that he was quite emotional when speaking about his love for J. and his other two children. [ 80 ] However, despite the clearly expressed love G.M.D. has for J., “serious harm” has in fact occurred, and further harm would occur if I refused to protect this child from the extra-provincial orders. The emotional harm to this child is real and apparent.

[81] J.’s evidence from the FJS Report (at page 6) is that he was “mentally tortured” when “his father took away his life” during the18 months unwillingly spent in Pakistan. I accept his statement that while there was no physical violence, “he lived in fear of his fatherwhile in Pakistan.” He described his paternal grandmother during the time as “abusive mentally and emotionally.” The FJS Report (at p.7) noted he became “visibly agitated” and “began shaking” while stating, “I cannot … there’s no way, I just cannot go back.” He furtherindicated (at p. 9), “I feel safe here. I didn’t feel safe there.

Here, I can sit down at home, and go to another room. I can go outside withmy friends. There is freedom and no guards watching over my every move.” The FJS Report stated his anxiety and worry over thissituation causes him to feel a deep sense of fear and anger. [82] Dr. Ajiboye corroborated J.’s feelings of anxiety and fear. He testified, “[t]he fear of not being able to return from some placeis not the stress to put on any child.” [83] Dr. Ajiboye rejected the assertion put to him in cross-examination that J.’s symptoms of PTSD relate to the threats of terrorismthe family experienced while living in Pakistan.

He explained for a child under the age of six to exhibit prolonged symptoms, he wouldneed to have had a direct exposure to a physically threatening event. M.L.’s evidence confirmed J. had no such exposure. I accept Dr.Ajiboye’s diagnose of PTSD and his opinion that J.’s anxiety, fear, and related symptoms are causally connected to the trauma sufferedwhile held against his wishes in Pakistan. [84] G.M.D. argues the harm is not to the child, but to M.L. for refusing to comply with the extra-provincial orders, and this Courthas no basis under subsection 51(

c) to interfere with orders of the courts in Pakistan. The strict legal position is the orders require M.L.“to produce” the minor. Her refusal to do so puts her and not J. in breach of the orders and the surety bond she posted undertaking toreturn J. for court ordered visitation. He states M.L.’s Application is simply a guise to get out from her obligations and “save the skin ofher surety.” [85] G.M.D.’s argument loses sight of the “intolerable situation” J. himself is suffering from the legal obligation of his mother “toproduce” him in Pakistan for court proceedings or visitation with his father.

M.L. cannot comply with her obligation without discussingwith J. and obtaining his mutual consent and cooperation. She cannot force a child of this age to abide by orders contrary to hiswillingness, and that would be substantially harmful to his mental health. [86] M.L.’s obligation is J.’s burden. Sixteen-year-olds have enough to cope with in this life, most especially this boy, given what hehas had to endure through no fault of his own.

He is entitled to have the heavy burden lifted from his shoulders of worrying about theconsequences of the financial harm to his mother, and the financial and possible civil penal consequences to her local surety in Pakistan,by his refusal to go to Pakistan. No child should have to bear this “intolerable situation.” [87] It is my duty to consider and protect the best interests of a minor. In the circumstances, I can give assurance to J. that he cannotlawfully be removed from Newfoundland against his wishes.

Since J. would suffer serious harm, I am superseding the extra-provincialorders in the least restrictive manner available to me by preventing both G.M.D. and M.L. from removing J. from the province, unless hedesires and consents to leaving of his own freewill. Issue 5 – What consideration should I give to the late request to rely upon

section 49 of the CLA for enforcement of the extra-provincialorders for return of J. to Pakistan? [88] After a three-day hearing and the final oral submissions were concluding, counsel for G.M.D. asked that I recognize and enforcethe extra-provincial orders under

section 49 of the CLA. The most fundamental problem is there is no application before the Court.

Section 49 states, “[u]pon application” G.M.D. did not request an adjournment to file an application. It would be extremely prejudicialand unfair to M.L. for the Court to consider

section 49 without her having the opportunity and benefit of a reply. A detailed analysis ofsection 49 is not warranted. [89] G.M.D. can take comfort in knowing he has suffered no prejudice in not having brought an application under

section 49. If anapplication had been filed, I would have been faced with competing applications and still have to go through the analysis I haveconducted. [90] G.M.D. did not provide any specifics on how I would go about giving effect and enforcing the extra-provincial orders. Anysuch order would put M.L. in the untenable position of attempting to require J. to go to Pakistan against his clearly expressed declarationto this Court: “I am not going to go. I’ll refuse to get on a plane.” I would be making an order with which M.L. could not comply.

Itwould also serve to increase the “intolerable situation” for both mother and child. [91] Furthermore, the order sought was in direct contradiction to G.M.D.’s own testimony that I should “leave it to J. to decide” onwhether and when he returns to Pakistan. Issue 6 – Should I make any order to encourage reconciliation and contact between J. and his father, while recognizing J.’s age, wishesand best interests? [92] G.M.D. relies on the seminal Supreme Court of Canada decision in Young v.

Young, (SCC), [1993] 4 S.C.R. 3that maximum contact between the child and each of his parents is a worthy goal in the best interests of the child. Although Young wasunder the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the same considerations apply to the CLA. In subsection 26(6) of the CLA, thenon-custodial parent’s entitlement to access “includes the right to visit with, and be visited by, the child.” The law mandates the long-term value to J. of a meaningful relationship with his father.

I must do what I can to encourage reconciliation between father and son,including contact and visitation. [93] G.M.D. implores this Court not to restrict J. from going to Pakistan if he wishes. His counsel submits J. is mature enough thathe should not be constrained as to his actions, or actions that he may wish to take in the future. [94] Dr. Ajiboye’s evidence clearly supports maintaining the relationship between father and son. He did not detect any rift betweenJ. and his father other than J. did not want to return to Pakistan. Dr. Ajiboye had no medical concern with J. returning to Pakistan as long

as the choice is of his own accord. [ 95 ] I will not prevent J. from going to Pakistan if he so desires. [ 96 ] J.’s frustration and anger with his dad is quite apparent. I am not prepared to order a mature 16-year-old against his wishes to have contact and visitation with his dad. [ 97 ] What I will order is for M.L. to talk to J. and strongly encourage him to reach out to his dad to begin the steps of reconciliation. It would mean so much to G.M.D. to hear J.’s voice and see his face.

The healing begins with one phone call or FaceTime. [ 98 ] Further healing can occur with G.M.D. making a visit to Newfoundland. I recognize G.M.D. will have to seek special exemption from his employer and the Government of Pakistan to leave Pakistan for this purpose. M.L. is to encourage visitation in Newfoundland or elsewhere during J.’s school holidays, as agreeable to J. , and not to unreasonably object or interfere with such visitation.

G.M.D. would be responsible for all expenses in connection with visitation. [ 99 ] I see no need for any supervision of the visitation, as M.L. suggested, as long as J. is comfortable with this. If he wishes to have a comfort person available for visits with his father, the parties, with J.’s consent, can mutually agree on the person(s). costs [ 100 ] Despite having sought solicitor-client costs in her Application and counsel’s written brief, Mr. Fedder wisely conceded in oral submissions M.L. is seeking no order to costs, as enforcement in a foreign country would be problematic.

I would not, in any event, have awarded costs against G.M.D. [ 101 ] G.M.D. seeks his costs. He is not entitled to costs when M.L. succeeded in having the extra-provincial orders “to produce” J. in Pakistan superseded. [ 102 ] I make no order as to costs. Conduct of the parties and counsel [ 103 ] I thank counsel for their thorough written briefs and oral submissions, and the manner they conducted themselves. Mr.

Handrigan had the particularly difficult task of communicating with his client and counsel in Pakistan via the video link, and at times during his questioning of witnesses and submissions receiving directions from them by email. He handled the task, including my interjections, effectively with calmness and professionalism. I also acknowledge the courtesy and respect shown to this Court by M.L. and G.M.D. and his counsel in Pakistan.

SUMMARY [ 104 ] My conclusion on the issues for resolution is as follows: 1. M.L. has failed to satisfy the Court that G.M.D. proposes to remove J. from the province, and the Application brought pursuant to subsections 45(2) and (3) of the CLA is dismissed. 2. This Court can supersede the extra-provincial orders on the conditions identified in

section 50 of the CLA based on: (

i) a material change in circumstances affecting J.’s best interests; (ii) he is habitually resident in Newfoundland on either the statutory or Balev approach; and (iii) if J. is not habitually resident, the terms of subsection 50(1)(

b) are satisfied. 3. There is no justification for declining jurisdiction under subsection 50(2), as Newfoundland is the more appropriate jurisdiction. 4. The evidence supports J. would suffer serious psychological harm as per subsection 51(

c) if removed from the province. 5. G.M.D.’s late request to rely upon

section 49 for enforcement of the extra-provincial orders was rejected, and the Court would not have enforced such orders in any event. 6. It is in the best interest of J. for M.L. to encourage reconciliation and contact with his father, and that visitation occur in Newfoundland until J. wishes and is willing to travel to Pakistan or elsewhere. Disposition and Order [ 105 ] IT IS ORDERED THAT: 1. This order supersedes the extra-provincial orders compelling M.L. “to produce” J. for attendance before the courts of Pakistan or for visitation with G.M.D. in Pakistan. 2.

M.L. is to encourage J. to make immediate contact with G.M.D. to begin the process of reconciliation with his father and maximizing a meaningful role for G.M.D. in J.’s life.

3. Subject to J.’s consent, G.M.D. may visit J. in Newfoundland or elsewhere on dates, times, and locations agreed upon with M.L. and J. during school holidays. M.L. is to encourage visitation in Newfoundland or elsewhere, as agreeable to J., and not to unreasonably object or interfere with such visitation. The expenses associated with visitation shall be borne by G.M.D. 4. There is no requirement for any supervision of the visitation as long as J. is comfortable with unsupervised visitation. If he wishes to have comfort person(

s) available for visits, the parties, with J.’s consent, can mutually agree on such person(s). 5. Nothing herein prevents J. from going to Pakistan when he is ready, willing, and able to do so. 6. There is no order as to costs. _____________________________ GLEN L.C. NOEL Justice