Case Update (5 March 2025): Elkhaiat v. Mawashi; Court orders Respondent to accompany 1-year old to Canada upon Child’s return as an ameliorative measure

The parties are parents to a 1-year-old child, born in Arizona in May 2023. The Family had resided at all relevant times in Toronto, Canada. Both parents are Canadian citizens. The child is a dual national. The Respondent Mother’s parents split time between Arizona and Ontario, so Respondent had chosen to give birth in Arizona. Respondent and Child returned to Toronto one month after the Child’s birth. Shortly thereafter, the parties began experiencing marital difficulties. When the child was 5-months-old, the Respondent expressed interest in a higher education program at Arizona State. Despite that, the parties signed a 1-year lease for an apartment in Toronto on December 1, 2023. On February 12, 2024, an ASU graduate program accepted the Respondent. She switched programs and was officially accepted into the new program on May 8, 2024. The parties discussed moving to Arizona, and Respondent applied for visas for herself, Petitioner Father, and the child in May 2024. Those visas were issued on June 14, 2024. Respondent and Child visited Arizona between March and April that year. They then returned to Ontario. In April or May 2024, the Petitioner asked a real estate agent to find him a 1-bedroom apartment in Toronto, where he planned to live alone. Yet, the parties continued to discuss and take steps towards a shared agreement to move to Arizona. On May 14, 2024, Petitioner changed his LinkedIn profile to search for employment in the USA. In June 2024, the parties discussed childcare options in Arizona, and Petitioner paid enrollment fees for the child at a daycare in Arizona. On June 6, 2024, the parties discussed separating. On June 15, 2024, Respondent and her father retrieved some of her belongings from the Toronto marital home, including her passport before she returned to her parents’ home in Ontario. On July 18 and 19, 2024, the Petitioner communicated that he would come help Respondent in Phoenix. He then traveled to see his parents in Egypt alone on July 20, 2024. On July 21, 2024, the Petitioner texted Respondent from Egypt that he did not consent to the Child being removed from the Toronto area. On August 8, 2024, Respondent and Child moved to Phoenix, Arizona. She informed the Petitioner the next day, and he then returned to Canada. Between August 6 and September 1, 2024, the Petitioner did not contact Respondent or child and stopped providing financial support. He filed for divorce in Ontario on October 8, 2024. One week later, he then filed the Petition to seek the child’s return to Canada.

The Respondent provided a copy of Canada’s Children’s Law Reform Act that provides that if the parents of a child live separate and apart, and the child resides with one of them with the consent (including implied consent or acquiescence) of the other, then the right of the other parent to exercise decision-making responsibility over the child is suspended until a separation agreement or order provides otherwise. This does not impact, however, the other parent’s entitlement to parenting time. The Respondent and Child were residing with her parents at the time she relocated the child to Arizona. Petitioner argues that this was a temporary visit, the parties were attempting to reconcile, and the Respondent had asserted that the Petitioner planned to move to Arizona with her and the child. Therefore, the court was unable to conclude if this separation fell under the purview of the Children’s Law Reform Act. Instead, it concluded that, at the very least, Petitioner was entitled to parenting time, and that has been severely limited by the child’s removal. This gave Petitioner a right of custody.

Respondent also argued that the Petitioner consented to the child’s relocation to Arizona, and a lot of evidence seemingly showed that the family had visas to travel to the USA, the Petitioner paid for the child’s Arizona daycare, and he was actively seeking out work in the USA. However, it appears that Petitioner objected to the Respondent taking the child outside of the Greater Toronto Area sending text messages on July 21, 2024. Respondent argued that their families subsequently discussed the couple’s issues verbally and that the families verbally consented to her taking the child to Arizona, but the court cannot conclude that Petitioner consented. If the Petitioner did consent to the child’s relocation, the court concluded that he withdrew that consent on July 21, 2024.

“The Court finds that Respondent has not established a valid ‘grave risk’ defense.” “However, in considering whether the child faces a grave risk prior to the home country court’s determination, courts may also consider ameliorative measures that can reduce potential risks associated with a child’s repatriation and make possible the safe return of a child.” The court expressed concern that the Petitioner had some parenting deficits, and the child had been in the primary care of the Respondent for some time, therefore “the Court is disinclined to put [the Child’s] safety at risk or disrupt the status quo of [the Child’s] life in the meantime by ordering Respondent to deliver [the Child] to Petitioner’s custody.” On this basis, the court found, as an ameliorative measure, that Respondent should accompany the child to Canada, unless the parties reach an alternative agreement or a Canadian court issues a superseding order pending its final custody determination.