Justice Kamal opened his reasons with striking language:
“The purpose of this motion is to promote the stability of the children and ensure that they are not used as pawns in their parents’ separation.” (para. 1)
That sentence sets the overall tone of the case, indicating a judicial position regarding parenting approaches and litigation tactics in high-conflict separations.
In Nouh v. ElAbbasy, 2025 ONSC 3154 , Associate Justice Kamal confronted the intersection of family violence, coercive control, and transnational flight within the procedural boundaries of Rule 14(4.2) of the Family Law Rules (“FLR”). The decision illustrates how “the interest of justice” can override procedural sequencing when the safety and stability of children are at risk (paras. 8–10, 14–16, 25–26).
Background: A Family in Flight
The parties, Egyptian nationals, married in 2010 and have two children, now 9 and 13 (paras. 3–4). After an incident of physical and verbal violence in February 2024, the mother left the matrimonial home with the intention of taking the children to Egypt, where her parents reside (para. 6(b)(ii)). Police attended (para. 6(b)(ii)). The father then took the children’s passports, birth certificates, and the mother’s car keys, and left for Egypt alone, with an understanding that the children would join their mother in June 2024 after the school year; however, he did not send them, and the children remained with him in Canada (para. 6(b)(iii)). In August 2024, the father moved to Kuwait with the children without notice to the mother (para. 6(b)(v)). The mother obtained custody and non-removal orders from a Kuwaiti court (para. 6(b)(vi)), but the father then returned to Canada with the children (para. 6(b)(vii)). The mother has not seen the children since February 2024 (paras. 6(b)(iv), 78).
Rule 14(4.2): Interest of Justice as a Safety Valve
Under Rule 14(4) of the Family Law Rules, no motion may be heard before a case conference, but Rule 14(4.2) provides limited exceptions for urgency, hardship, or other reasons in the interest of justice (para. 9). Justice Kamal explained that, unlike urgency or hardship, the “interest of justice” is a more flexible and context-dependent standard (para. 13). Urgency concerns immediate circumstances, while the “interest of justice” allows the court to consider a broader range of factors — including procedural fairness, litigation efficiency, the best interests of the child, and the complexity and practicality of the request (para. 13). This ground must be read consistently with the Family Law Rules’ primary objective of dealing with cases justly (para. 14), as outlined in Yelle v. Scorobruh, 2016 ONSC 3300, and McDermott v. McDermott, 2005 CanLII 37590 (paras. 14–15). The Court emphasized that this discretion should be exercised only in exceptional circumstances and is not a “catch-all” basis for bypassing the usual process (para. 16). In this case, the presence of family-violence allegations, coercive control, and a demonstrated flight risk (paras. 17–25) brought the matter within that exceptional scope. Justice Kamal concluded that it was therefore in the interest of justice for the motion to proceed before service and before a case conference (para. 26).
Urgency and Without-Notice Relief
Applying Rosen v. Rosen, 2005 CanLII 480 (ON SC), and Thomas v. Wohleber, 2020 ONSC 1965, the Court held that the urgency test was satisfied: the risk of harm or removal was immediate, serious, and particularized (paras. 29–32). Under FLR Rule 14(12)(d), the motion proceeded without notice because service itself would probably cause serious consequences (paras. 33–39). Justice Kamal reaffirmed that ex parte motions remain exceptional but justified where service could trigger flight or violence. Notably, the Court accepted the mother’s evidence on a balance of probabilities (para. 36), even though it had only evidence from the Applicant mother (para. 7). This underscores that when safety concerns are clearly particularized, uncontradicted affidavit evidence can ground urgent ex parte relief.
Family Violence as the Lens for Procedure
The decision situates procedural flexibility within the substantive framework of family violence. Citing Barendregt v. Grebliunas (2022 SCC 22), Volgemut v. Decristoforo (2021 ONSC 7382), and CCAS v. I.B. (2020 ONSC 5498), Justice Kamal affirmed that coercive control, emotional abuse, and intimidation all constitute family violence (paras. 17–20). This expansive view shaped both the urgency finding and the best-interests analysis.
The Broad and Purposive Interpretation (para. 53)
Justice Kamal adopted the interpretive approach from Michel v. Graydon (2020 SCC 24), emphasizing that remedial legislation must be read “in a fair, large and liberal manner” to ensure its objects are fully achieved (para. 52). He applied that principle to the Children’s Law Reform Act (CLRA) (para. 53), explaining that the Act’s parenting and best-interests provisions must be interpreted broadly to capture all forms of family violence, including coercive control and psychological abuse (para. 53, read with paras. 17–20). A purposive reading of the CLRA, he concluded, requires courts to maximize the Act’s protective scope for children and victimized parents (para. 53).
Best-Interests Framework
Sections 24 and 28 of the CLRA govern parenting and contact orders (paras. 40–48). The Court stressed that s. 24(2) makes the child’s physical, emotional, and psychological safety the primary consideration (para. 43), and s. 24(5) authorizes courts to consider past conduct when relevant to parenting ability (para. 48). The father’s pattern of relocation and control was therefore properly considered in assessing the children’s best interests.
The Non-Removal Order: Geography and Rationale
Justice Kamal prohibited removal of the children from Ontario, not from Canada (para. 64). This geographically narrow order is unusual; most non-removal orders extend nationwide. The Court reasoned that the father’s behaviour was aimed at evading Ontario proceedings specifically (para. 64). While proportionate, this limited scope could complicate enforcement if the father moved interprovincially. Counsel should consider whether broader language — prohibiting removal from Canada — would offer more secure protection. The rationale was also child-centred: one child’s ASD Level 2 diagnosis heightened the need for continuity and stability (para. 66).
Passports and Enforcement
Under ss. 28(1)(c)(v) and 37 CLRA, the Court ordered the father to deposit the children’s passports with the mother’s counsel within five days and authorized police enforcement if he failed (paras. 69–72). This gave real effect to the non-removal order, ensuring it was enforceable, not symbolic. Practitioners should note that, in practice, police are often reluctant to enforce civil family-law orders. Counsel may need to invoke Rule 31 of the FLR or bring a separate enforcement motion if compliance proves difficult.
Video Parenting Time
Because the mother resides in Egypt, the Court granted video parenting time three times weekly, emphasizing that the father must not interfere (paras. 74–87). Justice Kamal expressly prohibited interrupting calls, withholding devices or internet, or speaking negatively about the mother (paras. 86–87).
Substituted Service and Timing
Service was permitted via the father’s active email address, verified through school correspondence (paras. 88–94). Crucially, substituted service was to occur “after compliance of the orders requested herein,” meaning the non-removal and passport orders took effect before service (paras. 88, 94). This sequencing demonstrates the Court’s acute concern that service itself could trigger removal or retaliation.
Kuwait Orders and Conflict of Laws
The mother obtained Kuwaiti orders granting custody and prohibiting relocation (para. 6(b)(vi)), but the Court made fresh Ontario orders rather than enforcing those foreign judgments. There is no reference to the Interjurisdictional Support Orders Act or any recognition process, implying that the Court proceeded de novo under the CLRA. Practitioners should note the conflict-of-laws implications: foreign custody orders may be persuasive evidence of risk but are not automatically recognized. Immediate child-protection imperatives may override comity concerns.
Hague Convention Considerations
The international dimensions also raise potential Hague Convention issues. Egypt is not a Hague signatory, whereas Kuwait acceded in 2019. The judgment does not reference the Convention, likely because the mother sought Ontario protection rather than the children’s return. Still, these mixed jurisdictions could complicate any future enforcement or relocation disputes.
Return Date Flexibility
The Court ordered that the motion would return after the father filed his Answer — or once the time to do so expired (paras. 100–104). This ensures judicial oversight whether or not the Respondent participates. Counsel should also recognize that ex parte orders are inherently vulnerable on return: the mother’s untested evidence, while sufficient for urgent relief, must be substantiated if challenged. Preparation for the return date should include corroborating evidence and anticipation of likely defences.
Practice Guidance
Use Rule 14(4.2) proactively: The “interest of justice” extends beyond urgency to coercive control, concealment, and litigation evasion (paras. 8–26).
Sequence protective orders first: Secure non-removal and passport directives before service (para. 6(d)).
Plan enforcement early: Anticipate practical resistance to police execution (paras. 69–72).
Consider geographic scope carefully: Restricting removal only from Ontario may leave enforcement gaps (para. 64).
Build the evidentiary record: Section 24(5) CLRA allows prior controlling behaviour to inform parenting assessments (para. 48).
Prepare for the return date: Ex parte orders invite scrutiny; ensure corroboration and readiness for variation.
Conclusion
Nouh v. ElAbbasy is more than a procedural ruling — it is a jurisprudential signal that Ontario courts will treat coercive control and litigation flight as urgent threats to children’s safety. By interpreting the Children’s Law Reform Act broadly and purposively (para. 53), Justice Kamal reaffirmed that protection trumps procedure when evidence shows risk. And by beginning with the plea that children “not be used as pawns” (para. 1), the Court reminded all counsel that family litigation must never become a proxy battlefield for parental conflict.
Let’s continue to elevate the practice of family law in Ontario!
Connect with us on LinkedIn.
Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Specialized Family Law Practice: Cheryl brings a wealth of experience spanning nearly 40 years dedicated exclusively to family law.
- Masters Degree in Counselling: Her Masters Degree in Counselling informs her uniquely empathetic approach to each case.
- Certified Family Law Specialist: The Law Society of Ontario has certified Cheryl as a Family Law Specialist, recognizing her expertise in the area.
- Accreditation as a Mediator by the OAFM: Cheryl’s expertise is reflected in her accreditation from the Ontario Association for Family Mediation.
- Designated ADR Professional by Ontario’s ADR Institute: As a highly respected arbitrator, Cheryl’s designation reflects her recognized expertise in family law arbitration.
- Recipient of Numerous Awards and Honors: Among Cheryl’s many awards, honours and accolades is the prestigious Award for Excellence in Family Law from the Ontario Bar Association.
Legal Disclaimer: See Privacy Policy
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.
NOUH v. ELABBASY: When Flight, Fear, and Family Violence Collide
By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration.
Justice Kamal opened his reasons with striking language:
“The purpose of this motion is to promote the stability of the children and ensure that they are not used as pawns in their parents’ separation.” (para. 1)
That sentence sets the overall tone of the case, indicating a judicial position regarding parenting approaches and litigation tactics in high-conflict separations.
In Nouh v. ElAbbasy, 2025 ONSC 3154 , Associate Justice Kamal confronted the intersection of family violence, coercive control, and transnational flight within the procedural boundaries of Rule 14(4.2) of the Family Law Rules (“FLR”). The decision illustrates how “the interest of justice” can override procedural sequencing when the safety and stability of children are at risk (paras. 8–10, 14–16, 25–26).
Background: A Family in Flight
The parties, Egyptian nationals, married in 2010 and have two children, now 9 and 13 (paras. 3–4). After an incident of physical and verbal violence in February 2024, the mother left the matrimonial home with the intention of taking the children to Egypt, where her parents reside (para. 6(b)(ii)). Police attended (para. 6(b)(ii)). The father then took the children’s passports, birth certificates, and the mother’s car keys, and left for Egypt alone, with an understanding that the children would join their mother in June 2024 after the school year; however, he did not send them, and the children remained with him in Canada (para. 6(b)(iii)). In August 2024, the father moved to Kuwait with the children without notice to the mother (para. 6(b)(v)). The mother obtained custody and non-removal orders from a Kuwaiti court (para. 6(b)(vi)), but the father then returned to Canada with the children (para. 6(b)(vii)). The mother has not seen the children since February 2024 (paras. 6(b)(iv), 78).
Rule 14(4.2): Interest of Justice as a Safety Valve
Under Rule 14(4) of the Family Law Rules, no motion may be heard before a case conference, but Rule 14(4.2) provides limited exceptions for urgency, hardship, or other reasons in the interest of justice (para. 9). Justice Kamal explained that, unlike urgency or hardship, the “interest of justice” is a more flexible and context-dependent standard (para. 13). Urgency concerns immediate circumstances, while the “interest of justice” allows the court to consider a broader range of factors — including procedural fairness, litigation efficiency, the best interests of the child, and the complexity and practicality of the request (para. 13). This ground must be read consistently with the Family Law Rules’ primary objective of dealing with cases justly (para. 14), as outlined in Yelle v. Scorobruh, 2016 ONSC 3300, and McDermott v. McDermott, 2005 CanLII 37590 (paras. 14–15). The Court emphasized that this discretion should be exercised only in exceptional circumstances and is not a “catch-all” basis for bypassing the usual process (para. 16). In this case, the presence of family-violence allegations, coercive control, and a demonstrated flight risk (paras. 17–25) brought the matter within that exceptional scope. Justice Kamal concluded that it was therefore in the interest of justice for the motion to proceed before service and before a case conference (para. 26).
Urgency and Without-Notice Relief
Applying Rosen v. Rosen, 2005 CanLII 480 (ON SC), and Thomas v. Wohleber, 2020 ONSC 1965, the Court held that the urgency test was satisfied: the risk of harm or removal was immediate, serious, and particularized (paras. 29–32). Under FLR Rule 14(12)(d), the motion proceeded without notice because service itself would probably cause serious consequences (paras. 33–39). Justice Kamal reaffirmed that ex parte motions remain exceptional but justified where service could trigger flight or violence. Notably, the Court accepted the mother’s evidence on a balance of probabilities (para. 36), even though it had only evidence from the Applicant mother (para. 7). This underscores that when safety concerns are clearly particularized, uncontradicted affidavit evidence can ground urgent ex parte relief.
Family Violence as the Lens for Procedure
The decision situates procedural flexibility within the substantive framework of family violence. Citing Barendregt v. Grebliunas (2022 SCC 22), Volgemut v. Decristoforo (2021 ONSC 7382), and CCAS v. I.B. (2020 ONSC 5498), Justice Kamal affirmed that coercive control, emotional abuse, and intimidation all constitute family violence (paras. 17–20). This expansive view shaped both the urgency finding and the best-interests analysis.
The Broad and Purposive Interpretation (para. 53)
Justice Kamal adopted the interpretive approach from Michel v. Graydon (2020 SCC 24), emphasizing that remedial legislation must be read “in a fair, large and liberal manner” to ensure its objects are fully achieved (para. 52). He applied that principle to the Children’s Law Reform Act (CLRA) (para. 53), explaining that the Act’s parenting and best-interests provisions must be interpreted broadly to capture all forms of family violence, including coercive control and psychological abuse (para. 53, read with paras. 17–20). A purposive reading of the CLRA, he concluded, requires courts to maximize the Act’s protective scope for children and victimized parents (para. 53).
Best-Interests Framework
Sections 24 and 28 of the CLRA govern parenting and contact orders (paras. 40–48). The Court stressed that s. 24(2) makes the child’s physical, emotional, and psychological safety the primary consideration (para. 43), and s. 24(5) authorizes courts to consider past conduct when relevant to parenting ability (para. 48). The father’s pattern of relocation and control was therefore properly considered in assessing the children’s best interests.
The Non-Removal Order: Geography and Rationale
Justice Kamal prohibited removal of the children from Ontario, not from Canada (para. 64). This geographically narrow order is unusual; most non-removal orders extend nationwide. The Court reasoned that the father’s behaviour was aimed at evading Ontario proceedings specifically (para. 64). While proportionate, this limited scope could complicate enforcement if the father moved interprovincially. Counsel should consider whether broader language — prohibiting removal from Canada — would offer more secure protection. The rationale was also child-centred: one child’s ASD Level 2 diagnosis heightened the need for continuity and stability (para. 66).
Passports and Enforcement
Under ss. 28(1)(c)(v) and 37 CLRA, the Court ordered the father to deposit the children’s passports with the mother’s counsel within five days and authorized police enforcement if he failed (paras. 69–72). This gave real effect to the non-removal order, ensuring it was enforceable, not symbolic. Practitioners should note that, in practice, police are often reluctant to enforce civil family-law orders. Counsel may need to invoke Rule 31 of the FLR or bring a separate enforcement motion if compliance proves difficult.
Video Parenting Time
Because the mother resides in Egypt, the Court granted video parenting time three times weekly, emphasizing that the father must not interfere (paras. 74–87). Justice Kamal expressly prohibited interrupting calls, withholding devices or internet, or speaking negatively about the mother (paras. 86–87).
Substituted Service and Timing
Service was permitted via the father’s active email address, verified through school correspondence (paras. 88–94). Crucially, substituted service was to occur “after compliance of the orders requested herein,” meaning the non-removal and passport orders took effect before service (paras. 88, 94). This sequencing demonstrates the Court’s acute concern that service itself could trigger removal or retaliation.
Kuwait Orders and Conflict of Laws
The mother obtained Kuwaiti orders granting custody and prohibiting relocation (para. 6(b)(vi)), but the Court made fresh Ontario orders rather than enforcing those foreign judgments. There is no reference to the Interjurisdictional Support Orders Act or any recognition process, implying that the Court proceeded de novo under the CLRA. Practitioners should note the conflict-of-laws implications: foreign custody orders may be persuasive evidence of risk but are not automatically recognized. Immediate child-protection imperatives may override comity concerns.
Hague Convention Considerations
The international dimensions also raise potential Hague Convention issues. Egypt is not a Hague signatory, whereas Kuwait acceded in 2019. The judgment does not reference the Convention, likely because the mother sought Ontario protection rather than the children’s return. Still, these mixed jurisdictions could complicate any future enforcement or relocation disputes.
Return Date Flexibility
The Court ordered that the motion would return after the father filed his Answer — or once the time to do so expired (paras. 100–104). This ensures judicial oversight whether or not the Respondent participates. Counsel should also recognize that ex parte orders are inherently vulnerable on return: the mother’s untested evidence, while sufficient for urgent relief, must be substantiated if challenged. Preparation for the return date should include corroborating evidence and anticipation of likely defences.
Practice Guidance
Use Rule 14(4.2) proactively: The “interest of justice” extends beyond urgency to coercive control, concealment, and litigation evasion (paras. 8–26).
Sequence protective orders first: Secure non-removal and passport directives before service (para. 6(d)).
Plan enforcement early: Anticipate practical resistance to police execution (paras. 69–72).
Consider geographic scope carefully: Restricting removal only from Ontario may leave enforcement gaps (para. 64).
Build the evidentiary record: Section 24(5) CLRA allows prior controlling behaviour to inform parenting assessments (para. 48).
Prepare for the return date: Ex parte orders invite scrutiny; ensure corroboration and readiness for variation.
Conclusion
Nouh v. ElAbbasy is more than a procedural ruling — it is a jurisprudential signal that Ontario courts will treat coercive control and litigation flight as urgent threats to children’s safety. By interpreting the Children’s Law Reform Act broadly and purposively (para. 53), Justice Kamal reaffirmed that protection trumps procedure when evidence shows risk. And by beginning with the plea that children “not be used as pawns” (para. 1), the Court reminded all counsel that family litigation must never become a proxy battlefield for parental conflict.
Let’s continue to elevate the practice of family law in Ontario!
Connect with us on LinkedIn.
Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
Legal Disclaimer: See Privacy Policy
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.