ONTARIO COURT OF JUSTICE

CITATION: S.M. v. A.Y., 2023 ONCJ 454

DATE: 2023 10 12

COURT FILE No.: Toronto File No. DFO-23-878

BETWEEN:

S.M. and J.V.

Applicants

— AND —

A.Y.

Respondent

Before Justice M.B. Pawagi

Heard on September 28, 2023

Reasons for Judgment released on October 12, 2023

Julia Tremain............................................... counsel for the applicant aunt and uncle

Poroshad Mahdi .................................................. counsel for the respondent father

PAWAGI J.:

1: NATURE OF THE CASE

[1] The main issue before the court is how this almost 4-year-old child should be reintroduced to his father whom he has not seen in over two years.

[2] The child was born in Iran. His parents, both Iranian, separated about two months before his birth. The mother obtained a court order in Iran, unopposed by the father, granting her sole custody (until the child is 7 years old at which time it will change to joint custody) and visitation for the father. The mother moved with the child to Canada in April 2021 when the child was 1 ½ years old following an incident where the father allegedly assaulted her and the child when she took the child to him for a visit.

[3] After the mother unilaterally removed the child to Canada, the father obtained a court order in Iran, without notice to the mother, placing the child in his care. The mother filed an application in this court in which she sought a recognition of, and a variation of, the initial Iranian court order to change her sole custody to permanent, instead of time limited, alleging a history of domestic violence by the father.

[4] The mother died of cancer on April 29, 2023. In her will, she named her sister to be guardian of the child. Since shortly before the mother’s death, her sister and her sister’s husband (the applicants), who reside in the Netherlands with their almost 5-year-old daughter, have been taking turns coming to Toronto for 2 ½ months at a time to care for the child. The child is a permanent resident of Canada.

[5] The father arrived in Toronto in July 2023 on a visitor’s visa. He resides in Dubai and operates businesses in Dubai and Iran. Since he arrived, the applicants have not permitted him to have any contact with the child.

[6] The father’s plan is to obtain a work permit and then permanent residency in order to remain in Canada with the child; failing which his plan is to live with the child in Dubai. The applicants’ plan is to live with the child in the Netherlands.

2: POSITIONS OF THE PARTIES

[7] The applicants seek the following relief:

a. A temporary order, on a without prejudice basis, granting them sole decision making for and guardianship of the child pursuant to s. 61 of the Children’s Law Reform Act;

b. An order requesting the involvement of the Office of the Children’s Lawyer to complete an assessment pursuant to s. 112 of the Courts of Justice Act;

c. A temporary order that no person shall remove the child from Ontario without a valid and final court order;

d. An order that a third party ascertain any international criminal records of the parties, including records of any charges filed by or against the parties.

[8] While not contained in their notice of motion, the applicants propose that the respondent have parenting time through a process of therapeutic reunification.

[9] The respondent seeks the following relief:

a. A temporary order for parenting time as follows:

i. Zoom calls twice per week (ten minutes per call);

ii. For the first four weeks: parenting time three times per week (five hours each time);

iii. For the next four weeks: overnight parenting time three times per week (24 hours each time);

iv. Then overnight parenting time each week for four consecutive days.

b. An order that the respondent be involved in all medical treatments for the child;

c. An order permitting each party to make emergency medical decisions for the child;

d. An order directing the applicants to provide the respondent with the following:

i. The names and contact information for all the doctors, dentists, therapists, tutors, etc. who have treated the child since January 1, 2022, and an order permitting the respondent to contact these individuals directly.

ii. The name and contact information of the child’s current school and daycare;

iii. A copy of the applicants’ passports from January 1, 2022;

iv. The applicants’ criminal record checks from the Netherlands;

v. The applicants’ address in the Netherlands;

vi. The child’s address in Toronto.

e. An order directing that the applicants’ counsel shall hold the applicants’ passports and the respondent’s counsel shall hold the respondent’s passport until a court orders the passports be released.

3: ANALYSIS AND THE LAW

3.1: Jurisdiction

[10] While it can be inferred that the parties are not disputing the court’s jurisdiction from the fact that both parties brought motions seeking parenting orders from this court, it is important on the facts of this case, which includes allegations of a wrongful removal, that the basis of the court’s jurisdiction be clearly delineated.

[11] Section 22(1) of the Children’s Law Reform Act sets out two circumstances in which a court may exercise its jurisdiction to make a parenting order: (a) if the child is habitually resident in Ontario or (b) if the child is not habitually resident in Ontario, but all of six specified criteria are met.

[12] Section 22(2) of the Act defines habitual residence as where the child resides with one parent with the consent, implied consent or acquiescence of the other parent.

[13] The father deposes that he did not give his consent, implied or otherwise, to the child residing in Ontario nor did he acquiesce to same. No evidence to the contrary was provided in the within hearing.

[14] I find, however, that regarding the second circumstance in which the court may exercise its discretion, all six of the specified criteria have been met based on the following undisputed evidence:

i. The child was physically present in Ontario at the commencement of the within application;

ii. Substantial evidence regarding the best interests of the child is available in Ontario as the child has been residing in Ontario for 2 ½ years and attending daycare, school, and therapy sessions here;

iii. There is no application pending in another jurisdiction respecting decision making or parenting time;

iv. No extra-provincial order respecting decision making or parenting time has been recognized by a court in Ontario;

v. The child has a real and substantial connection with Ontario as he has lived here from age 1 ½ to almost 4 and attended daycare, school and therapy here; his teachers, doctors, therapists, friends are all here; and

vi. On the balance of convenience, while none of the parties have status in Canada, other than as visitors, it is appropriate for jurisdiction to be exercised in Ontario given that all of the evidence about the child’s needs and other circumstances over the past 2 ½ years are to be found only here.

[15] Thus, I find that this court has the jurisdiction to hear the within matter pursuant to s. 22(1)(b) of the Act.

3.2: Parenting orders sought

3.2(i): Decision making

[16] The applicants seek an order granting them temporary sole decision making on a without prejudice basis pursuant to s. 61 of the Act which provides that “A person entitled to decision-making responsibility with respect to a child may appoint by will one or more persons to have decision-making responsibility with respect to the child after the death of the appointor.”

[17] Pursuant to section 61(4)(a), such an appointment is effective if “the appointer is the only person entitled to decision-making responsibility with respect to the child ” (emphasis added) on the day immediately before the appointment is to take effect.

[18] At the time of the mother’s death on April 29, 2023, the mother was in the midst of applying to this court to have her Iranian court order recognized and varied to make the custody she was granted permanent instead of only remaining in place until the child was 7 years old. Meanwhile, the father deposes that he obtained an order in Iran returning the child to his care. He does not provide a copy of the order or the date it was made, but deposes that it was made after the mother removed the child to Canada but before she died.

[19] On the limited evidence before me, and without expert evidence regarding the meaning and validity of the conflicting Iranian court orders, I cannot find that the mother was the only person entitled to decision-making responsibility with respect to the child at the relevant time and thus I cannot grant the applicants sole decision making pursuant to s. 61 of the Act.

[20] However, I find I can and should make an order regarding decision making pursuant to s. 24 of the Act in the best interests of the child. It would not be in the best interests of the child to have no person legally able to make decisions regarding his welfare.

[21] Pursuant to s. 24(2), in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well being.

[22] The following is my consideration of the factors set out in s. 24(3):

a. the child’s need for stability

Given how vulnerable the child is (his young age and the fact that his mother recently died) his need for stability is high and the applicants have had de facto sole decision making responsibility for him for the past six months.

b. the nature and strength of the child’s relationship with each of the parties

The father is a stranger to the child. The aunt and uncle, on the other hand, have been the primary caregivers for the child since the child’s mother died six months ago.

c. each party’s willingness to support the development and maintenance of the child’s relationship with the other

The aunt and uncle have not demonstrated any willingness to support the development of the child’s relationship with his father (other than their proposal to do so in the future through reunification therapy). Since the father arrived in Toronto in July 2023, they have not permitted him to have any contact with the child, not even a brief greeting by telephone or video call. The father appears willing to maintain the child’s relationship with his aunt and uncle as his proposal is to gradually work towards a shared parenting arrangement with the aunt and uncle while the parties are all still in Toronto. He cannot demonstrate his willingness due to the applicants’ position.

d. the history of the care of the child

The father has never cared for the child. The father and mother separated before the child was born. The mother then obtained custody with visitation to the father. The father deposes that she did not abide by the visitation order such that he was not able to see the child regularly. But he does not say how often he saw the child. In the last 2 ½ years, since the child has been in Canada, the father has only seen the child once in a brief video call in October 2022. The aunt and uncle have been the primary caregivers of the child for the past six months.

e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

There is no evidence before the court regarding the child’s views and preferences given his young age (he is not yet 4 years old). He also has speech and behavioural issues that point to some developmental delay.

f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage

Both the aunt and the father are Iranian and speak Farsi. The child would be exposed to his heritage in the care of both parties.

g. any plans for the child’s care; and

h. the ability and willingness of each person to care for the child

These factors are not relevant in the within motions. The ultimate plans for the child’s care (in Canada or Dubai with the father, or in the Netherlands with the aunt and uncle) are not before the court at this time.

i. the ability and willingness of each person to communicate and cooperate with each other in matters affecting the child

The aunt and uncle have not demonstrated any willingness to communicate and cooperate with the father. They have not provided him with any contact, even virtual, with the child. They have not provided him with any substantive information about the child until the court order was made for same on consent on the last appearance. While their worry the father will remove the child to Iran is legitimate, it should not affect video contact and the sharing of information about the child which can be done without disclosing the child’s address. The father has stated he is willing to cooperate with the applicants but cannot demonstrate that cooperation due to their position.

Counsel for the father labels their worry as anti-Iranian racism. I do not agree with that characterization; rather, I find their worry is based on the following undisputed facts: The father has no ties to Canada. He has no residence or job in Canada. He is here as a visitor. He does not speak English. His position in the now stayed proceeding against the mother was that the mother wrongfully removed the child from Iran and that the court in Ontario did not have the jurisdiction to hear her application. He deposes that he has an Iranian court order that the child be returned to his care. He proposes that his counsel hold his passport but that would not prevent him from obtaining a replacement passport for himself and possibly for the child given the child was born in Iran and the father has an Iranian custody order.

j. any family violence

The following is a summary of the aunt and uncle’s allegations regarding family violence by the father.

1. After the child’s birth, while the mother and child were residing in Iran, the father was frequently verbally, psychologically and physically abusive towards the mother in front of the child. At one point he showed up at maternal family’s home in Iran with a knife and made violent verbal threats towards maternal family.

2. The mother and the child visited with the father on February 28, 2021. The father became violent with the mother and when the child tried to reach his mother, the father hit and shoved the child. Maternal grandparents picked up the mother and the child immediately afterwards. Maternal grandparents told aunt the mother was distressed and shaking.

3. The aunt noticed that the mother began to fade in her marriage, no longer telling jokes, smiling less frequently, no longer speaking up. The mother seemed stressed whenever she spoke on the phone with the aunt, and her messages were shorter and less frequent.

4. The aunt accompanied the mother to hospital in Iran where initially the father did not sign consent for her treatment. The mother went outside to get him and when she returned she was shaking, and appeared scared and upset. The mother fawned over and placated the father so he would sign the consent so she could start chemotherapy. After the treatment the mother spoke to him over the phone and the aunt could hear him shouting at her through the phone and demeaning her. The aunt comforted her when the mother cried afterwards.

5. The aunt found copies of police reports from Iran among the mother’s things, along with hospital records of her injuries. The aunt deposes that she witnessed abusive and controlling behaviour by the father towards the mother.

6. The mother filed a complaint against the father for assault in Iran and she was examined by a doctor for a domestic violence incident on April 21, 2020. The aunt found a referral to an ophthalmologist for that day for “traumatic injury done to the left eye,” and a police record from this assault.

7. The aunt found a copy of a police report dated September 4, 2020, stating that the father “went to the restaurant and dragged her forcibly to his car and began beating her, causing damage to her lips and right eye.”

8. The uncle in his affidavit sworn July 27, 2023 attaches a transcript of a purported conversation between the mother and father on December 11, 2019 in which the father tells the mother that he paid someone 20 million rials (about $624 CDN) to have her killed, saying “I swear by God, I swear by Quran, I will kill you, I have paid money to have you killed” and that “as soon as they hit you, I will have the baby.”

The father denies all of the allegations. While he was arrested upon his arrival at Pearson Airport on July 17, 2023, as a result of allegations he threatened the mother, the charges were withdrawn following the mother’s death.

Counsel for the father points out many issues with the above evidence including the following: much of it is hearsay; the police and medical reports alluded to ought to have been attached as exhibits to the affidavits; and the aunt’s evidence about the police and medical reports ought to have been included in her initial affidavit not her responding affidavit. I also add the following: what is missing is how the aunt and uncle learned of some of the events they describe; and also missing is who recorded the December 11, 2019 conversation and how the applicants obtained the recording.

However, I find there is sufficient evidence provided by the aunt regarding what she directly observed, for the court to find there is a history of domestic violence by the father towards the mother, though not to enable the court to determine the extent of it.

[23] Having considered the above noted factors, I find it would be in the best interests of the child to make an order granting the applicants sole decision making. In particular, I note that they have demonstrated their ability in the past six months to make decisions in the child’s best interests by promptly seeking out professional services for him as soon as the need was identified (such as for speech therapy) and for enrolling him in daycare and junior kindergarten appropriately and following all recommendations made by the daycare consultant and other professionals. Starting from before the mother’s death, they provided instrumental and emotional care for the child at great personal sacrifice given the time they then had to spend away from their own young daughter in the Netherlands, thus demonstrating their commitment to the child.

3.2(ii): Parenting time

[24] It is not disputed that the child has not seen his father since he was 1 ½ years old, except for a brief video call in October 2022. And it is not clear really how much the child saw of his father even while in Iran. The child is now almost four years old. His father is a stranger to him.

[25] How the child should be re-introduced to his father is very much disputed. The father is seeking an order that unsupervised parenting time start immediately and gradually expand such that in eight weeks the child’s primary residence would change from the aunt and uncle to the father (described in the father’s motion as four consecutive days per week with the father). The applicants are seeking an order that there be no parenting time until a lengthy process involving multiple interviews with a reunification therapist is completed.

[26] The same best interest factors apply as considered above and will not be repeated here.

[27] The following additional evidence was considered on the issue of parenting time regarding the child’s behaviour and his needs.

[28] The child was found to be behind in his speech. He saw a speech therapist through the Preschool Speech and Language Program from April to June 2023. His primary language is English. He does not speak Farsi, although he has a limited vocabulary related to food.

[29] At the time of the mother’s death, the daycare raised concerns about the child’s play style such as smashing toy cars together in mock accidents. The daycare’s external consultant told the applicants this was developmentally behind where he should be likely due to the trauma of losing his mother. The aunt deposed that the child will be seeing a behavioural therapist on a regular basis through Lumenus.

[30] A psychologist met with the child on April 25, 2023 and provided a consultation report that included the following information:

a. The daycare reports that their concern is with the child’s aggression and destruction. They state he is emotionally labile and sometimes overreacts. They report that he can get “very violent”, hitting, kicking, and throwing objects, like a chair. He can display this behaviour up to a few times a day; Staff say that his behaviour depends on his mood, and that he is moody.

b. The psychologist observed the child with other children. He had limited play skills and displayed very little social interaction with his peers.

c. The child’s acting out behaviour and emotional dysregulation are concerns. In more specific terms, aggression, being oppositional-defiant, being emotionally reactive and having some behaviours related to ASD such as a speech problem, being disturbed by change and upset by new people or new situations emerged as concerns. [I note that this is the only reference to ASD or Autism Spectrum Disorder in the evidence before the court].

d. Family therapy, play therapy will help the child’s transition [to new country, to impending loss of his mother]. Consultation with pediatrician/family doctor recommended to make sure no medical basis for his challenges. A complete updated psychological assessment is also recommended to help with his educational and treatment programing. Behaviour consultation is recommended for behaviour management strategies: to reward or reinforce for appropriate behaviour; to ignore where safe to do so; to consequence for acting out behaviour. To maximize effectiveness of consequences, immediacy and consistency are important.

e. The psychologist noted that the child needs structure, consistency and predictability in his life. He needs to know what he can and cannot do, what are acceptable and unacceptable behaviours.

[31] A “resource consultation summary” dated May 26, 2023 concluded as follows:

Overall [child] is doing very well in the senior preschool program. He ‘has his moments’, but educators are stepping in to redirect as needed, as they are increasingly able to notice when his mood appears to be escalating. Toilet training is going well.

[32] A “summary of intervention” covering the period of time from April 8 to June 28, 2023 concluded as follows: The child has made incredible gains throughout this block of sessions. He is staying and playing and sitting for books for longer periods of time. He engages in turn taking activities and pretend play. He communicates for a variety of reasons.

[33] The applicant propose that reunification therapist Joanna Seidel be retained. She provided a letter indicating that reintroducing the child with his father can be considered a form of reunification therapy and proposed the following:

a. She will meet with father at least a few times to prepare him mentally and emotionally for meeting the child and ensuring he has good understanding of child’s age, stage of development and potential reactions;

b. She will meet with applicants a few times to gain a good understanding of the child and gather background information;

c. She will meet with applicants and child a few times so child can become familiar with the therapeutic setting.

d. She will have an initial meeting with father and child with one caregiver present to support the child.

e. She will then assist with a plan to gradually increase contact between the father and the child.

[34] I find that the above proposal is more akin to an assessment of the father which is not being sought here.

[35] I find that short visits supervised by a professional agency would address the concerns; namely, the allegations of domestic violence, the fact the father is a stranger to the child and they have to gradually get to know each other, the child’s need for stability, and the risk that the father will remove the child from Ontario, while still enabling the child to develop a relationship with his father.

[36] This order will also be made on a without prejudice basis. Given that the applicants had total control with respect to the child since the death of the child’s mother, it would not be fair for this control to result in the conferring of a litigation advantage to them.

3.2(iii) Additional relief

[37] With respect to the additional relief sought by the applicants:

a. It is premature to request the involvement of the Office of the Children’s Lawyer given that there has been no contact between the father and the child for over two years (other than the one brief video call one year ago); and

b. I cannot order a third party to obtain criminal records of the parties in the absence of notice to said third party.

c. Consequently, the balance of the applicants’ motion is dismissed.

[38] With respect to the additional relief sought by the respondent:

a. The names, contact information and addresses requested will not be ordered as there is legitimate reason to believe the respondent could remove the child from Ontario;

b. The applicants’ passports and their address in the Netherlands are not relevant to the issues before this court;

c. The applicants are already required to provide their criminal record checks as they have commenced a non-parent application;

d. The father depositing his passport with his counsel will not alleviate the risk he will remove the child as he can obtain a replacement passport. Furthermore, Iran is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Meanwhile, the applicants depositing their passports with their counsel is not practicable as they need their passports to travel back and forth from the Netherlands as they are taking turns taking care of the child and taking care of their own daughter back home. And finally, the Netherlands is a signatory to the Hague Convention.

e. Consequently, the balance of the respondent’s motion is dismissed.

3.3 Order

Temporary order to go on a without prejudice basis as follows:

1. The applicants shall have sole decision-making authority with respect to the child [name and date of birth].

2. The applicants shall advise the respondent promptly and in writing of any such decisions.

3. The applicants shall keep the respondent up to date regarding any developments with respect to the child’s educational, psychological and medical care.

4. The applicants shall arrange for a professional involved with the child (psychologist, daycare consultant, or other), provided said professional consents, to speak with the father on the telephone. Purpose of the call is for the father to obtain information about the child to assist him in re-establishing contact with the child. The respondent shall be responsible for the cost of said call, if any, and for arranging for an interpreter.

5. The respondent shall have parenting time with the child as follows:

a. Video calls twice per week (up to 10 minutes per call) commencing the week of October 16th. One of the applicants may be present during the call to assist the child. Schedule to be determined by the applicants and provided to the respondent at least one week in advance along with the link.

b. Weekly parenting time of two hours per week supervised by Renew or Brayden on Saturday or Sunday, at the agency’s location, commencing the weekend of October 21/22. Date and time to be determined by the respondent in consideration of the agency’s availability and the child’s schedule. One of the applicants may be present at the first one or two visits to assist the child. The respondent may bring a friend or family member to interpret if necessary.

6. The respondent shall be responsible for the costs associated with the supervised parenting time including obtaining the supervision notes.

7. Neither party shall remove the child from Ontario except pursuant to a court order made by this court after today’s date.

Costs submissions may be made orally on return date.

Released: October 12, 2023

Justice M.B. Pawagi