WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: May 30, 2022 COURT FILE No.: C30530/19

BETWEEN:

Children's Aid Society of Toronto Applicant,

— AND —

M. J. Respondent (father)

Before Justice Roselyn Zisman Heard on May 16-19, 2022 Reasons for Judgment released on May 30, 2022

Counsel: Katie Skinner................................................................... counsel for the applicant society M.J. ............................................................................................................... on his own behalf Deborah Snider ................................. counsel for the Office of the Children’s Lawyer, legal representative for the children

Decision on trial

Zisman J.

1. Overview

[1] This is a Status Review application, pursuant to subsection 113 of the Child, Youth, Family Services Act (CYFSA) regarding two children AR who is 14 years old and AY who is 7 years old. The Children's Aid Society of Toronto (the society) seeks, in addition to other relief, an order placing the children with their maternal aunt and uncle pursuant to a subsection 102 of the CYFSA.

[2] The Respondent (father) is the father of both children. The mother and father also have 3 older children who are not part of these proceedings.

[3] The mother passed away under suspicious circumstances on April 3, 2019.

[4] The children went to live with their maternal aunt and uncle on April 3, 2019, as the police investigated the mother’s death and closed access to their home. The children have resided with their maternal aunt and uncle since that date.

[5] The father was charged with first degree murder of the mother on September 7, 2019.

[6] A non-communication order, pursuant to section 515 (2) of the Criminal Code, was made on June 9, 2020 that prohibits the father from directly or indirectly communicating with all his children and with the maternal aunt and uncle.

[7] After an 11-day preliminary hearing, on December 11, 2021 Justice Caldwell released her decision that committed the father to stand trial on a charge of second degree murder. The father has been incarcerated since his arrest. His criminal trial has commenced before a judge alone and is continuing sometime in June or July.

2. Court Proceedings

[8] Prior to the father being charged in connection with the mother’s death, the society issued a Protection Application on April 15, 2019.

[9] The society had concerns about the children’s safety in the father’s care due to his past history of mental health issues and whether there was a treatment plan in place to address those concerns. The society was also concerned about unanswered questions surrounding the mother’s death.

[10] On April 15, 2019 the children were formally placed in the care of the maternal aunt and uncle pursuant to a temporary without prejudice order with access to the father and their older siblings.

[11] On October 28, 2019 there was a finding that the children were in need of projection pursuant to subsection 74 (2)(b) (i) (ii) and (h) of the CYFSA. The children were placed in the care and custody of the maternal aunt and uncle pursuant to a 6-month supervision order.

[12] On June 15, 2021, a further 6-month supervisions order was made placing the children with the maternal aunt and uncle.

[13] The society issued the current Status Review Application on November 2, 2021. The society seeks an order pursuant to subsection 102 of the CYFSA that the children be placed in the care and custody of the maternal aunt and uncle, with incidental parenting orders, no access to the father and a restraining order.

[14] The father filed an Answer dated February 22, 2022. At that time, he was represented by counsel and incarcerated. He sought an order that the children be returned to his care with or without a supervision order or in the further alternative, that he be granted liberal access to the children. He did not propose any alternate plan for the children while he remained incarcerated.

[15] In his opening remarks the father admitted that the court was unable to grant the relief he sought in his Answer. He then submitted for the first time that he wished that the children remain with the maternal aunt and uncle subject to a further 6-month supervision order. He sought an order for access to commence when he is released from jail in order to rebuild his relationship with the children and eventually he wishes the children to be placed in his care. He objected to the order sought by the society as they would no longer be involved. It was his position that the children were not safe with the maternal aunt and uncle and that they would not facilitate access to him.

[16] On this trial the society relied on the affidavits of Russell Robicheau, the intake worker. Taia Giecko the former family service worker, Tiffany Allison the kinship service support worker and Christina Wolfe, the current family service worker. All these witnesses were available for cross-examination. The maternal aunt testified orally and was subject to cross-examination.

[17] The society relied on an Admission of Facts, filed on consent (Ex. 1) regarding the past involvement of children’s aid societies with the mother and father.

[18] The society also relied on a document brief with Notices to Introduce Business Records with police reports, and an Evidence Act notice to introduce the practitioners reports of Dr. Robert Notkin dated June 7, 2019 and an Emergency Consult note of Dr. Isabella Patyk dated March 27, 2019. A letter from the father to the intake worker was also included.

[19] A supplementary Document brief was filed with a copy of the non-communication order and a copy of the decision of Justice Caldwell with respect to the father’s preliminary hearing discharging him on the first degree murder charge and committing him to stand trial on the charge of second degree murder.

[20] The society sought to rely on several statements made by the children to the various society workers and to the maternal aunt. The society sought to rely on these statements, under the state of mind hearsay exception. The father did not cross-examine any of the society witnesses regarding these statements. He did however suggest to the maternal aunt that she was lying about what the children told her.

[21] I found the maternal aunt to be a credible witness. Her evidence was coherent and logical and not contradicted in cross-examination. Her evidence with respect to the children’s statements to her were corroborated by the society witnesses and by statements previously made by the mother.

[22] The father filed as part of his direct testimony a handwritten document (Ex. 14) and then further testified orally. Counsel for the society and the children’s counsel chose not to cross-examine him.

[23] The father was permitted to file as part of his evidence a report of a psychologist Dr. James Allan Long dated August 29, 2013, a letter from a dentist Dr. Miriam Grusjka dated December 20, 2013 and the entire hospital record of the Scarborough hospital regarding his hospitalization on March 26 and 27, 2019.

[24] The father sought at various times during his cross-examination of witnesses to introduce parts of a police interview with one of the children, an email between the coroner and the Crown Attorney or police officer. He also attempted to introduce various comments allegedly made by the presiding judge, witnesses and his counsel during his ongoing criminal trial. He was not permitted to cross-examine or introduce any of these documents or statements. The court took the position that all the court would be relying on was the fact that the father was facing a trial for second degree murder of his wife and ruled that references to parts of the evidence from his criminal trial were not admissible. Further, with respect to the child’s interview with the police, neither the maternal aunt or any of the society workers were present and had no knowledge of what was said or the circumstances of the interview. The father was otherwise permitted to cross-examine the witnesses and was given wide latitude to do so.

3. Statutory Framework and Legal Principles

[25] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the CYFSA, as set out in subsection 1(1) which is to promote the best interests, protection and well-being of children.

[26] As long as it is consistent with the paramount purpose, other purposes of the CYFSA as set out in section 1(2) are also designed to support the autonomy and integrity of the family unit, to utilize the least disruptive course of action available and appropriate to help a child and to recognize that, whenever possible, children’s services should be provided in a manner that respects the children’s needs for continuity of care and for stable family relationship.

[27] As this is a Status Review Application, there has already been a finding that AR and AY are in need to protection pursuant to subsection 74 (2) (i) and (ii) and (h) of the CYFSA that is, there is a risk that they will suffer physical and emotional harm.

[28] It is well settled law that the court must now evaluate whether there is a continued need for state intervention to protect the children and consider what disposition would be in their best interests.

[29] In balancing the best interests of a child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parents’ parenting ability. [^1]

4. Is There an Ongoing Need of Protection?

[30] I find that a further order is necessary to protect the children for the reasons outlined below.

4.a) The Children’s Mother is Deceased and the Father is Incarcerated

[31] The father’s culpability for the death of his wife will be determined in the criminal trial. But regardless of the outcome of his criminal trial, questions regarding his responsibility will linger.

[32] The children have expressed that they believe that their father is responsible for her death. The children are still processing the death of their mother and need support to be able to discuss their feelings about her death.

4.b) The Father’s Untreated Mental Health Issues

[33] The original protection finding was based in part, on concerns with respect to the father’s untreated mental health issues and concerns that he had not followed any treatment plan for those issues.

[34] The father reported that in 2013 he was treated in Iran for a psychiatric illness and prescribed anti-psychotic medications. He admitted that he had not followed up with any mental health professionals when he came to Canada.

[35] The father relied on the letter of Dr. Long dated August 29, 2013 that was prepared for a criminal charge he was facing related to dangerous driving. Although the letter confirms that the father was not dangerous, it states that a full personality assessment was not completed. I further note that the letter is dated, a full assessment was not done and Dr. Long is a psychologist and therefore not qualified to make a psychiatric diagnosis. Accordingly, little if any weight can be attributed to this letter.

[36] On March 26, 2019 the father stated that he called the police as he could not sleep. He was admitted to the hospital under the Mental Health Act. Though he had called the police, he was described to be belligerent and told the police that they would never would have to kill him before taking him. He was intoxicated upon admission and making many delusional and paranoid comments. The hospital report indicate that the father had some fixed beliefs about losing his house years ago and wanting to talk to Stephen Harper about this, delusions of “Jews chasing” him, a Jewish dentist dislocating his jaw and accused his wife of working for the government and wanting to punish her for this. He lacked insight and minimized events. His affect was inappropriate and his explanations about how he ended up in the hospital was incongruent.

[37] A diagnosis of unspecified psychosis was made. But a diagnosis of delusional disorder, substance induced psychosis and alcohol use disorder could not be ruled out. He was prescribed anti-psychotic medications and referred to follow up with a psychiatrist for out-patient treatment.

[38] The father in his evidence fixated on the fact that Dr. Izabella Patyk, a psychiatrist who prepared the Emergency Consult report, was lying as he was seen by another psychiatrist Dr. Wong. However, the hospital records indicate that Dr. Wong, the on call psychiatrist on March 26 th could not assess the father as he was intoxicated and refused blood work. The father needed to be assessed the next day and was then reassessed by Dr. Patyk.

[39] The father obtained a referral for a psychiatric assessment. A report was filed from Dr. Robert Notkin dated June 7, 2019. Dr. Notkin concluded that the psychiatric assessment was inconclusive. Dr. Notkin suggested that there needed to be a forensic psychiatric assessment. The father reported that several years prior experienced that he was being plotted against but that he was treated with anti-psychotic medications and he felt calmer now. Dr. Notkin stated that although he did not find evidence to support a current psychiatric diagnosis that did not mean that that a psychiatric diagnose was not present and he would not rule out a substance use disorder or an underlying psychotic disorder with paranoid thinking.

[40] Dr. Notkin suggested that there needed to be a forensic psychiatric assessment as there were many contradictions between what the father stated and the evidence presented by the society and other family members. Dr. Notkin was concerned about the context in which the assessment was being conducted namely, that the assessment was made at the suggestion of the children's aid society with the father seeking custody of his children and in the context of ongoing court proceedings.

[41] The children also reported to the intake worker that the father was sometimes unwell, pacing back and forth and yelling confusing things about their old house.

[42] The father’s statement filed with the court (Ex. 14) is filled with incoherent and delusional and paranoid statements about plots against him. One does not need to be a psychiatrist to be extremely concerned about the father’s mental health after reading this 14 page document.

[43] Accordingly, the father’s untreated mental health remains a concern and a risk to the children's physical and emotional safety.

4.c) Concerns About Family Violence

[44] There is a history of family violence by the father against the mother. In 2007, the father as charged with assaulting the mother. The society was involved and subsequently closed their file as the mother reported there were no further incidents, the father expressed remorse and the mother was protective of the children.

[45] The York Children's Aid Society was involved from July 2013 to November 2014 due to a report from a hospital relating to concerns about the father’s paranoid thoughts. During this time period, the father was arrested for dangerous driving. The mother tried to stop him from driving with the 4 children who were in the car as he was intoxicated. The father tried to drive off while the mother, who was pregnant, hung on to the car door. The father was placed on probation although he testified that he only was given a “ticket.” The evidence was unclear as to whether the father was convicted or pled guilty. In any event, the father minimized the incident.

[46] On the day of the father’s admission to the hospital on March 26, 2019, according to the hospital records, the mother told the father to leave the house and when he wouldn’t leave, she took his keys and took the younger children to her mother’s home. The mother reported that the father had not stopped drinking all week, that his behaviour had escalated recently and he accused her of working for the government and wanting to punish for her this. He told her that, “I’m going to get you back, I don’t care if I go to jail.” She expressed fear for herself and the children. The mother initially told the hospital staff that she did not want the father returning home but then said he had nowhere else to go. Seven days later the mother was dead.

[47] The mother also reported that while they were in Iran the father abused her “in every way” physically, emotionally and sexually and threatened to break her teeth as soon as they returned to Canada.

[48] The maternal aunt reported that the children believe that the father is “sick in his head” and talk about him having a “scary look” in his eyes.

[49] The children also reported that they had been exposed to a lot of sexualized things between the parents. AY slept in the same bedroom as his parents and AR slept a floor below. Both children reported to their aunt that they heard their mother screaming out and crying out “no, no, no” that she interpreted to mean that the father was engaged in unwanted sexual activity.

[50] A.R. recounted an incident where their father was holding down their mother who was screaming and he and AY n tried to punch and pull their father off and then their older sister came and helped pull him off. They were scared and expressed fear of their father.

[51] I find that the children have been impacted by the family violence they witnessed and are at risk of emotional harm due to the incidents of family violence against their mother and the exposure of the children to this violence.

4.d) The Father’s Excessive Use of Alcohol

[52] The father confirmed to the current family service worker that he had been drinking on the evening that he was admitted to the hospital on March 26, 2019. Although he minimized his drinking to the hospital staff, his state of intoxication is well documented.

[53] Dr. Notkin is his assessment also raised concerns about the father’s substance abuse as did the mother.

[54] The maternal aunt described an incident in her home when the father had gone out with her husband and another friend and the father returned extremely intoxicated. He tried to pull the children out of their beds though it was 2:00 a.m.

[55] The father’s substance abuse of alcohol puts the children at risk of harm.

Conclusion

[56] Accordingly, the protection concerns that existed when the society commenced its Protection Application in April 2019 still exist today. Those concerns exist regardless of whether the father is convicted of the death of the mother.

5. What Disposition Order is in the Best Interests of the Children?

[57] In considering what order is in the children’s best interests, the court is required to consider the factors set out in subsection 74 (3) of the CYFSA. A comprehensive best interests analysis requires consideration of the strengths and weaknesses of every option. The court must consider the following relevant factors.

5.a) The Views of the Children

[58] The views and preferences of the children have been clear and consistent. The children were interviewed independently and multiple times.

[59] The children wish to continue to reside in the care of their maternal aunt and uncle.

[60] The children have also indicated that they do not wish to have contact with their father.

[61] These views have been expressed to their maternal aunt and to the various society workers who have assessed their views to be independent. The evidence of the workers as to the children’s views and preferences was not diminished by any cross-examination.

[62] The children are represented by independent counsel who has assessed their views and preferences to live with their maternal aunt and uncle to be consistent, independent and in their best interests.

[63] The father testified that there were no concerns when he was exercising access to the children. Overall, the father is correct that there were no reported concerns.

[64] However, there is evidence that A.R. stated that she felt uncomfortable in the visits and that her father acted differently when the society workers were watching. The intake worker testified that he was just beginning his investigation to get a baseline and he was not able to assess the children’s fear of their father.

[65] Even if the father’s access visits raised no concerns those visits took place over 2 years ago and before the father was charged with the murder of their mother. The children have made statements blaming their father for her death. They are beginning to speak about incidents in that home that caused them to fear their father and speak of him hurting their mother.

[66] The children have expressed fear of returning to live with their father. They are worried he may “kidnap” them and take them back to Iran. The children have expressed stress, anxiety and fear about their father being released from jail.

[67] The children clearly have some very unpleasant memories.

[68] The father testified that all the evidence about the children’s statements are lies and deceptions perpetrated by their maternal aunt of financial gain. He stated that he is the same father he always was and not the monster that the maternal aunt is making him out to be.

[69] I find that the court should place considerable weight on the views and preferences of the children.

5.b) The Children’s Needs and Level of Development and the Appropriate Treatment or Care to Meet Those Needs

[70] The children have some special needs. In particular they have emotional needs in dealing with the trauma they incurred prior to the death of their mother and dealing with their mother’s death.

[71] When the children first came to their home, the maternal aunt noted that their basic dental needs had been neglected and their were issues with their eating habits and general hygiene. There were concerns about the children’s sexualized behaviour, lack of appropriate boundaries and they both were accessing pornography. AR did not want to shower and did not know how to brush her hair.

[72] AY was displaying concerning behaviour especially when he returned from an access visit with his father. The maternal aunt described how he tried to overturn a glass table and other times he would scratch himself and bang his head against the wall. There were reports of his aggressive behaviour and lack of emotional regulations. He would scream out and make disturbing moaning sounds and engage in sexualized behaviour.

[73] The maternal aunt testified that the children had a lack of understanding as to appropriate behaviours but they responded well to direction.

[74] The maternal aunt and the children participated in various counselling services. The maternal aunt learnt how to identify the children’s emotions, how to help them feel safe and learnt how to manage their emotions. The children ae now better able to speak about their emotions and feelings and better able to regulate themselves. The children now understand proper boundaries and appreciate the routines in the maternal aunt and uncle’s home.

[75] The maternal aunt has arranged for grief counselling for the children. and they have attended a bereavement camp that helped as they became aware that other children had also lost their parents. They will be attending the camp again this year. The children are registered for trauma counselling. The maternal aunt is also in regular contact with the children’s school.

[76] The father suggested that the children were kissing each other on the lips and engaging in other sexualized behaviour as the maternal aunt’s uncle has schizophrenia and kissed the children on the lips. The society investigated the father’s concerns and found no basis for his concerns. I accept the maternal aunt’s evidence that the children have never been left alone with her uncle whom she has not seen for years.

[77] The father also accused the maternal aunt of only allowing AR to shower for 3 minutes. This allegation was denied by the maternal aunt. I find no basis for this allegation. The maternal aunt explained that when the children went to camp their time for a shower was limited so this maybe the source of this misunderstanding.

[78] I agree with the father’s submission that his son’s behaviour after visiting him cannot necessarily be attributed to him. But it is clear on the evidence I accept that his son was exposed to very worrisome and traumatic events and it would not be unusual for him to act out when in a safe place.

[79] I find that the maternal aunt has worked with the society and on her own to find appropriate resources to meet the physical and emotional needs of the children and provide them with the security and permanence of a long term home.

[80] The father is certainly not in a position to meet the children’s needs at present. He has no insight or understanding of the needs of the children or the trauma they have been exposed to.

5.c) The Children’s Racial and Cultural Heritage

[81] The maternal aunt and uncle are of Chinese heritage and the father is of Persian heritage. The maternal aunt and uncle have exposed the children to both cultures by celebrating the respective holidays of all cultures. The children have been exposed and introduced to the different foods of both cultures. The children are also exposed to the Canadian culture.

[82] The maternal aunt is unaware of the father’s family members. But she would be prepared to let the children have a relationship with any of the father’s family members.

5.d) The Importance of a Positive and Secure Relationship with a Parent

[83] Based on the evidence of the various society workers and the maternal aunt I find that the children have a positive, loving and secure relationship with the maternal aunt and her family.

[84] The maternal aunt testified that she cannot imagine her family without the children. Her obvious love and devotion to the children was palpable.

[85] The father’s relationship with the children is currently severely damaged. The father does not recognize this and blames the maternal aunt. I accept the maternal aunt’s evidence that she has tried to remain neutral regarding the criminal charges and has simply told the children that the father is charged with the death of their mother.

5.e) The Children’s Emotional Ties to a Parent, Siblings and Other Members of Their Extended Family

[86] The children have positive ties to the maternal family that includes their maternal aunt and uncle, their cousins and the maternal grandmother. The maternal aunt has ensured that the children maintain ties to their older siblings. The siblings currently spend time together at least once a week that incudes overnight visits. The maternal aunt has not imposed any restrictions on the amount of time the siblings spend together.

[87] There were no concerns expressed by any of the society workers about the maternal aunt supporting the relationship of the children with their siblings.

[88] The father continues to see himself as a “perfect “parent and cannot accept that the children fear him and wish no contact with him. He blames everyone else for their estrangement from him and takes no responsibility or shows any insight in his role in causing their feelings about him.

5.f) The Importance of Continuity in the Children’s Care

[89] The children have been in the care of the maternal aunt and uncle for 3 years. This factor strongly favours the society’s plan. The children have expressed concerns about their future and where they will be living.

[90] The father’s plan will disrupt the children’s current stability and security. The children fear their father and wish no contact. They fear he will remove them from their home with the maternal aunt and uncle.

5.g) The Effect of Delay in the Disposition of the Case

[91] The children have been in legal limbo for 3 years. The society’ position will afford them the knowledge that they will be living with the maternal aunt and uncle as part of that family.

[92] The father is essentially requesting that a final decision with respect to children be further delayed. He previously requested an adjournment of this trial that was denied. His plan for a further 6-month supervision order with the maternal aunt and uncle would delay a final disposition and expose the children to the likelihood of another trial.

5.h) The Merits of the Society Plan Compared to the Plan of the Father

[93] The society plan for the children to be placed in the custody of their maternal aunt and uncle will provide the children with a secure and permanent placement with them. The children will continue to benefit from the stability, security and supports that the maternal aunt and uncle have provided them regarding dealing with their grief, trauma and any behavioural issues.

[94] The society plan will enable the maternal aunt and uncle to make all decisions regarding their well-being. The maternal aunt and uncle have proven that they are willing and able to meet all of the children’s needs. The plan is consistent with the children’s strong wishes

[95] The father’s plan has no air of reality. His plan would prolong the children’s anxiety about their future.

5.i) The Risk That the Children May Suffer Harm Through Being Kept From the Original Custody of Their Father

[96] The opposite is true in this case. The children would be exposed to an ongoing risk of emotional harm if there was a further 6-month supervision order with the maternal aunt and uncle as requested by the father. The children would be made aware that their father was requesting access to them and that his plan was for them to return to live with him.

5.j) The Degree of Risk That Justified the Finding

[97] This is a real and continuing concern in this case. The risks that justified the finding or a need of protection remain the same today. Concerns remain regarding the father’s unresolved mental health, regarding his lack of follow through with respect to taking medication and obtaining psychiatric assistance and concerns regarding the children’s exposure to family violence. The children require a stable and secure home environment and caregivers that can help them to deal with the trauma of their mother’s death and their father’s incarceration.

[98] The maternal aunt and uncle should also have the ability to travel with the children and obtain any necessary government issued documents such as passports, social insurance numbers, renewal of their health cards, without the prior approval or consent of the father.

Conclusion

[99] There is overwhelming evidence that the only plan that ensures that the children’s best interests, protection and well-being are met is to place them in the custody of their maternal aunt and uncle.

6. Access

[100] Pursuant to subsection 104 of the CYFSA may in the children’s best interests make an access order. The court is required to consider best interests considerations set out in subsection 74 (3).

[101] At present, the father in accordance with the non-communication order is prohibited from having any access to the children.

[102] Even if the father is acquitted, access at this time is not in the children’s best interests. The children’s views and preferences are consistent. They are afraid of their father.

[103] The father’s own evidence as set out in his recent statement (Ex.14) raises questions about his mental health. The statement is not child focused but is a concerning summary of his various conspiracy beliefs. The father does not accept he has a mental health issue.

[104] The father testified, as he laughed about his conspiracy statements that “just because they sound excessive does not mean they are not true.”

[105] The father agreed that the children may have witnessed him with a “scary face” but that was related to his relationship wit the police.

[106] I accept the evidence that it appears that the father’s access over 2 years ago occurred without any major concerns but that does not mean that access would now be emotionally beneficial to the children especially in view of their stated wishes not to have any contact with the children.

[107] I therefore find that an order that the father have no access is in the children’s best interests.

7. Restraining Order

[108] The society seeks a restraining order, pursuant to subsection 102 (3) of the CYFSA that the father have no contact directly or indirectly with the children and with the maternal aunt and uncle.

[109] Before a court can grant a restraining order it must be satisfied that there are “reasonable grounds for the person to fear for his or her safety or for the safety of their child. [^2]

[110] A person’s fear may be entirely subjective as long as it is legitimate. [^3] A person’s subjective fear can extend to both their physical and psychological safety. [^4]

[111] In this case I find that the maternal aunt and uncle have a legitimate fear for their physical and psychological safety as well as the children’s physical and psychological safety on a subjective and objective basis.

[112] I accept the maternal aunt’s evidence that she fears for the safety of the children and her entire family. She testified that she feels intimidated by the father and fearful as he blames her for being arrested and accused of killing his wife.

[113] The maternal aunt testified that prior to his arrest the father gave AR a cell phone without her consent. She feared that the father gave her the cell phone so could track AR’s whereabouts as cell phones have both GPS functions and ability to track the whereabouts of a phone.

[114] The maternal aunt testified that she had seen the father become aggressive when he was intoxicated. She was aware of her sister’s concerns about her safety and the safety of her children because of the father behaviour especially when he was drinking. For example, when the maternal aunt and uncle moved, the mother told the maternal aunt not to reveal her address to the father.

[115] The mother had provided the maternal aunt with several recordings of the father making threats to the mother. The current family service worker listened to several of these recordings and she heard the father making threats to punch the mother in the teeth, make her “pay” and threats to rape and kill her and not caring if he goes to jail.

[116] The maternal aunt testified that prior to the father’s arrest she received threatening phone messages from the father and hang up calls that she attributed to the father.

[117] The maternal aunt testified that as a result of being cross-examined for almost 4 days by the father’s counsel during the trial, she understood that the father holds her responsible for his arrest as he believes that she orchestrated his arrest and that she provided information to the police. The father submitted that the accusations against the maternal aunt were made by his counsel not him. But in his cross-examination of the aunt, he suggested that she was pursuing custody of the children for financial gain. In both his own testimony and in his cross-examination of the maternal aunt and of the society witnesses he made it abundantly clear that he blames the maternal aunt not just for being accused of killing his wife but for the children not wishing to have contact with him. He also blamed the maternal aunt for all the children’s concerning behaviours.

[118] The aunt testified that she learnt from her sister about the family violence and threats by the father. She also learnt about the father’s mental health issues.

[119] The maternal aunt testified that she learnt that the father had made a threat to her sister on March 26, after her sister told him he wanted to separate. She understood that he stated that her sister “would pay for it” [^5] and 7 days later she was dead.

[120] Based on the additional information she has now learnt about the father she fears for her safety, the safety of her family and the safety of the children.

[121] The children have expressed their fear of the father and concerns that he may kidnap them and take them back to Iran. They wish no contact with him.

[122] I find that a restraining order should be made to protect the physical and psychological safety of the maternal aunt and uncle and the children.

8. Order

[123] There will be an order as follows:

1. The children, AR born […], 2007 and AY born […], 2014 shall be placed in the custody of IC and JC pursuant to subsection 102 of the CYFSA.
2. IC and JC may travel with the children, AR and AY J outside of Canada without the prior written consent of the Respondent father.
3. IC and JC may apply for any of AR and AY government documents such as passports, renewal of passports, social insurance numbers, applications for name changes, health cards and birth certificates, without the prior written consent of the Respondent father.
4. The Respondent father shall have no access to the children.
5. Access by AR and AY to their siblings shall be in the discretion of IC and JC to occur a minimum of once a month, taking into consideration the children’s wishes.
6. The Respondent father shall be restrained, pursuant to subsection 102 (3) of the Child, Youth, and Family Services Act, from having contact, directly or indirectly, with IC and JC, until such order is varied or terminated by subsequent court order

Released: May 30, 2022 Signed: Justice Roselyn Zisman

[^1]: Catholic Children’s Aid Society of Metropolitan Toronto and the Official Guardian v. M. (C.), [1994] 2 S.C.R. 165 [^2]: McCall v. Res, 2003 ONCJ 254 [^3]: Supra; Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (ON.S.C.) [^4]: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.) [^5]: Ex. 4B Record of Scarborough Hospital March 26-27, 2019 quoting the mother telling the hospital staff that the father had threatened her by stating that “I’m going to get you back. I don't care if I go to jail.”