Bayar-Mestiti v. Mestiti – Custody and the Hauge Convention during COVID-19
The mother and father in this case were married for thirteen years and have two children. After their separation in 2019, the parties entered into a separation agreement which stated the children were to live with the mother in Toronto and visit the father, who moved to Tunisia for work, at least three times per year.
During the children’s scheduled visit with their father in Tunisia in March, the travel restrictions of the COVID-19 pandemic took effect and the mother agreed to let the children stay with the father until restrictions were lifted to allow them to return to Toronto. When the Canadian government arranged for three flights for stranded Canadian citizens in Tunisia, the mother made multiple attempts to reach the father, but he refused to respond.
Shortly following this, the mother received a letter to her parents’ home in Tunisia from the father’s lawyer, stating the father had commenced divorce and custody proceedings in Tunisia and was seeking sole custody of the children. In this urgent motion, the mother requested that she be granted custody of the children, the children be immediately returned to Canada, there be a stay of the proceedings in Tunisia and that the divorce proceedings be severed from the corollary relief proceedings.
Since the parties had only agreed to a separation agreement and there was no court order governing custody, the court needed to determine the mother was the custodial parent to grant temporary custody and it did so. This was supported by evidence that the children had resided in Toronto since birth, their lives including school and sports are in Toronto and the mother had been largely responsible for their care. The court also temporarily ordered that the children’s passports and health cards were to be given to the mother upon the children returning to Canada and that the father should only have supervised visits until a final custody and access order is made.
Since Tunisia is a member of the Hauge Convention, an application for the return of the children must be made where the children are located, and there was no evidence to show the mother made such an application. Therefore, the court could not order the return of the children. The court also stated it could not stay the proceeding in another jurisdiction as it did not have the authority to do so. Finally, on the matter of severing the divorce from other proceedings, the court denied this request as it would pose a disadvantage to the father by ensuring a divorce be granted in Ontario prior to the trial the father commenced in Tunisia. The Family Law Rules expressly prohibit either spouse being disadvantaged by such a severance.
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