Docket: CACV2592 Adel Abbas Elnaggar Appellant (Petitioner) - v. -, 2014 SKCA 104

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 104 Date: 2014-09-26 Between: Docket: CACV2592 Adel Abbas Elnaggar Appellant (Petitioner) - and - Amira Mohsen Hamdan Respondent (Respondent) Coram: Jackson, Ottenbreit and Caldwell JJ.A. Counsel: Tyler Dahl for the appellant Michael Soder for the respondent Appeal: From: F.L.D. 251 of 2014, J.C. of Saskatoon Heard: September 26, 2014 Disposition: Appeal dismissed (orally)

Written Reasons: October 2, 2014 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Jackson J.A. [ 1 ] This is an appeal from two orders made in the Court of Queen’s Bench. When the appeal was heard on September 26, 2014, it was dismissed with oral reasons, with the promise of written reasons to follow.

These are those reasons. [ 2 ] The primary issue dividing the parties is whether the Saskatchewan courts should exercise jurisdiction over Ahmed Adel Abbas Elnaggar, born February 4, 2004, and Farida Adel Abbas Elnaggar, born November 1, 2006. [ 3 ] Adel Abbas Elnaggar, the appellant father, and Amira Mohsen Hamdan, the respondent mother, have not lived together continuously since the father came to Canada on a student visa in 2009.

Since then, the parties have spent time together as a family in Egypt and Canada for short periods of time only, measured in terms of weeks on each occasion, and most of this time has been spent outside of Saskatchewan. [ 4 ] In 2011, the family applied for permanent residency in Canada, which was granted in 2013. In 2013, the mother and children spent approximately one month in Saskatchewan. [ 5 ] On this current and second occasion, the mother arrived in Saskatchewan with the children from Egypt on June 19, 2014—with return airline tickets showing a return date of August 27, 2014.

On July 30, 2014, the appellant father applied ex parte for an order restraining the mother from removing the children from Saskatchewan without his consent. This order was granted with a return review date of August 15, 2014. [ 6 ] The day after having been served with the ex parte order, the mother moved into transition housing.

The father refused to give the children’s passports to the mother, and at some point between August 15 and August 26, 2014, the father also changed the return date on the airline tickets to a later date and then subsequently cancelled them. [ 7 ] On August 26, 2014, Goebel J. declared that Saskatchewan courts do not have jurisdiction over the children in accordance with s. 15(1) (

a) of The Children’s Law Act, 1997 , SS 1997, c C-8.2 [ Act ] as they were not “habitually resident” in Saskatchewan at the time of the application; nor were the factors under s. 15(1)(

b) of the Act fully met. Referring to s. 15(3) of the Act , Goebel J. stated she could not find the children have a closer connection to Saskatchewan than they do to Egypt. [ 8 ] She went on to hold that even if she had found the children to be habitually resident in Saskatchewan, she would have declined jurisdiction under s. 16 of that Act , as she viewed Egypt as the more appropriate jurisdiction for the resolution of any parenting issues between the parties.

She closed by saying “[t]he father is encouraged to return the children’s passports to the mother and co- operate in ensuring that no authorities are misled by the [ ex parte ] Order he originally obtained and distributed in an effort to block their return to Egypt” (unreported August 26, 2014, Fiat at para. 25). [ 9 ] Following the release of Goebel J.’s decision, the father refused the mother’s request to turn over the passports to her unless certain conditions were granted. [ 10 ] The mother applied to the Court of Queen’s Bench for an order that the passports be delivered to her lawyer and that the sheriff or other peace officer be permitted entry to any premises occupied by the father to seize the passports.

At some point, unbeknownst to the mother, the father sent the children’s passports to the Egyptian Embassy in Ottawa, requesting that they be held in trust until an Egyptian court decides the question of the custody and residence of the children. [ 11 ] On September 5, 2014, the return date of the mother’s application to obtain the passports, Turcotte J. ordered the father to direct a letter by registered mail to the Embassy of Egypt in Ottawa, irrevocably rescinding his earlier letter, and enclosing copies of Goebel J.’s August 26, 2014 order and Turcotte J.’s September 5, 2014 order.

Turcotte J. also directed the father to authorize, irrevocably, the release of the children’s passports to Amira Mohsen Hamdan upon receiving them. [ 12 ] The father immediately wrote to the Egyptian Embassy in accordance with this order. On the morning of the hearing of the appeal to this Court, the passports were in the possession of the mother’s lawyer, on trust conditions pending the outcome of the appeal. [ 13 ] The father appealed the decisions of Goebel J. and Turcotte J. A.

The appeal from the decision of Goebel J. [ 14 ] The father’s appeal challenges the completeness of Goebel J.’s reasons, saying she either did not address some of his evidence or she should have ordered a hearing to resolve the disputed facts. In particular, the father submits that Goebel J. found certain matters to be undisputed, when he continues to dispute them. [ 15 ] For example, when Goebel J. reviewed the parties’ positions, she stated the following are not disputed: (

i) that the mother is employed as a professor at Alexandria University and contractually obligated to return to that position; (ii) that the children have always attended the same international private school in Egypt and are enrolled to continue studies at the school this September; and (iii) that the

airline tickets reflect the parties’ intention that the mother and children would return to Egypt. [16] The father continues to assert that the Egyptian government has relieved citizens of the obligation to fulfil contracts such as theone binding the mother to return to Alexandria University, in light of the current political climate. He states further that the children areenrolled in the Saskatoon Misbah School and they are being home schooled in Egypt under the Saskatoon School Division’s homeschoolrequirements.

With respect to the airline tickets, he swore in his affidavit that he purchased return tickets because they were lessexpensive than one-way tickets. [17] In our view, the factual matters raised by the father do not address the fundamental issues, notably where the children have themost connection and where the best evidence in relation to them may be obtained. In this case, the critical fact is that the children havenever spent more than four weeks in Saskatchewan in any given year until this year when, after six weeks, the father obtained an exparte order preventing their removal.

The question of habitual residence in this case turned on that pivotal issue, and the reasons ofGoebel J. make that point clear. [18] Goebel J. first reviewed the following authorities: Arnold v Arnold (1997), (SK CA), 163 Sask R 96;Pangracs v Dick, 2009 SKCA 14, 320 Sask R 285; Spacek v Miller, 2009 SKCA 125, 343 Sask R 52; and Pichler v Fiegehen, 2009SKCA 101, 337 Sask R 160. She then made these critical findings: [19] … Egypt is where they have lived for the past 5 consecutive years. They attend school in Egypt and participate in activities there.It is where their friends and extended family reside.

It is where their home is located and their belongings. … [22] … While the children were physically present in Saskatchewan at the commencement of the application, it cannot be said thatthere is substantial evidence concerning the best interests of the children available in Saskatchewan nor do the children have a real andsubstantial connection with Saskatchewan. [23] The father argues that jurisdiction can be based upon intentions. He argues that the parties clearly intended to make Canadatheir home at some point and were slowly working on a plan to make that happen.

While that may have been a long term plan, I cannotagree that it confers jurisdiction upon the court. Where jurisdiction is opposed, the court must determine whether it has jurisdiction overthe children at the time that the application is brought based on the circumstances which exist at that time and not what may have beenintended by the parties to occur years into the future. Egypt is the place where the children reside, go to school, have friends and areinvolved in activities.

Egypt is the place where the best evidence concerning the children’s interests is available and where they are mostsubstantially connected … [emphasis added]. (Goebel J. Fiat, unreported August 26, 2014) [19] In our view, these findings demonstrate a clear understanding of the findings of fact necessary to support the legal conclusionsregarding habitual residence. With respect to the parties’ intentions regarding the airline tickets, the best evidence on this point is thefather’s ex parte application to restrain the mother from returning to Egypt.

If it had been the parties’ mutual intention that the motherreside permanently in Saskatchewan, it would not have been necessary to proceed to obtain such an order and to do so without notice toher. [20] The father also asserts that the Court should have acted to assume jurisdiction on two alternate footings, both relating to the parenspatriae jurisdiction of the Court. First, he submits that the Court should take judicial notice of the instability of the Egyptian regime andthe collapsing court structure, which will make obtaining a court order from that country extremely difficult.

Second, he submits that theCourt should also take judicial notice of the potential harm that may befall the children due to political unrest, if they are left in Egypt. [21] Assuming without deciding that the parens patriae doctrine would allow a court to assert jurisdiction in such circumstances, thereis simply no credible evidence before the Court that would allow the Court to do more than speculate as to the current situation in Egypt.The father has been in Canada since 2009.

The mother works and lives in Egypt, and is content to return there with the children. [22] It would hardly be in the best interests of the children to order a protracted hearing regarding the present and future situation inEgypt. Further, whatever that situation is, it does not change the basic fact that the mother has been the primary caregiver of the childrenfor the whole of their lives.

Since 2009, when the father moved to Canada, the children have never spent longer with the father than thesix weeks prior to the father obtaining the ex parte order in this case. [23] Finally, the father asserts that the Court should have assumed parens patriae jurisdiction over the children on the basis the motherendangered the children by having left them in the care of her mother while she attended conferences of four days in duration on twoseparate occasions. The father submits that his mother-in-law is “aged” and not well.

While this factual matter was not covered by theChambers judge, it is the slimmest of all the arguments put forward.

This much is not disputed: the mother is a retired physician who is69 years old and suffers from diabetes and macular degeneration, which are not normally the infirmities that would prevent a grandparentfrom caring for the children. [24] The mother’s status as a permanent resident, which in itself will require significant time in Canada in order to be maintained, doesnot change the underlying fact that up until this year the mother has not physically resided in Canada for more than four weeks in anygiven year. [25] For these reasons, the appeal from the decision of Goebel J. was dismissed when the appeal was heard.

B. Appeal from the decision of Turcotte J. [26] Turcotte J. stated he made the order with respect to the children’s passports on the basis that the father had attorned to thejurisdiction by virtue of his application under The Children’s Law Act and pursuant to the Court’s inherent jurisdiction. The fatherappeals from that order, saying that if Saskatchewan courts do not have jurisdiction to make an order in relation to the children, TurcotteJ. lacked jurisdiction to make the order he made. [27] The order of Turcotte J., however, is not an order in relation to the children, but is an order directed to the father. According tos. 4(

d) of The Court Jurisdiction and Proceedings Transfer Act, SS 1997, c C-41.1, a court has territorial competence in a proceeding thatis brought against a person only in certain specified circumstances, including if “the person is ordinarily resident in Saskatchewan at thetime of the commencement of the proceeding.” [28] Mr. Elnaggar moved to Canada in 2009, he has been a permanent resident of Canada since 2013, and he has been living inSaskatoon since April 2011.

Therefore, he was ordinarily resident in Saskatchewan at the time of the commencement of the proceeding.As a result, the Court had territorial competence in relation to him. While Turcotte J. referred to “jurisdiction” rather than “territorialcompetence” in the Order, he correctly identified the issue and correctly concluded that the Court had the necessary jurisdiction to hearthe application before him. [29] The second issue is whether the Court of Queen’s Bench has the authority or power to make an order compelling the father to writeto the Embassy.

On this issue, too, we are satisfied that Turcotte J. did not err. While the Court does not have jurisdiction over thechildren, they are clearly entitled to the Court’s protection from harm. As La Forest J. writing for the Court in E. (Mrs.) v Eve, (SCC), [1986] 2 SCR 388 at paras 72 to 74 stated, the situations under which the parens patriae jurisdiction can be exercisedby a Canadian court are legion and are not closed.

It is a jurisdiction founded on necessity and exercised in the best interest, and for thewelfare, of persons who cannot care for themselves. [30] There is no inconsistency in the Court of Queen’s Bench asserting its parens patriae protection over the children to allow them toleave the country when the Court refused to exercise it to keep them here. In the latter case, as we have indicated, there is simply nocredible evidence that would allow the Court to say the children would be in danger if they return to Egypt.

On the other hand, keepingthem here is not in their best interest and does affect their welfare. [31] The children are seven and 10 years old. Without their passports, their mother will not be able to return to Egypt. The mother andchildren are in housing for the homeless, and without any visible means of support. If the children cannot return to Egypt, theirs will be adifficult situation without any known solution.

If the Court does not act on the basis that it lacks authority, the police may have authorityto intervene but not only is their intervention uncertain, it will not be timely, and will almost certainly be traumatic for the family. [32] For these reasons, we dismissed the father’s appeal from the decision of Turcotte J. when the matter was heard and ordered therelease of the passports to the mother.