ONTARIO COURT OF JUSTICE

Date: February 26, 2025
Toronto Court File No.: DFO-23-00000878-000

BETWEEN:

Sanat Mirzaei
Jornt Hermen van der Wiel
Applicants

-and-

Aliakbar Yamohammadi
Respondent

Heard on: September 9–13, 16-17, 2024

Reasons for Judgment released on: February 26, 2025

Counsel for the Applicants: A. Hudie
Counsel for the Respondent: P. Mahdi

Meyrick, S.J.

REASONS FOR DECISION

Part I – Introduction

[1] The Application dated July 7, 2023, Amended Application dated July 28, 2023, and Answer, dated August 10, 2023, concern one child, Farnam Yamohammadi, born in Iran on […], 2019 (hereinafter referred to as “the child”).

[2] The Applicants are the child’s maternal Aunt and Uncle (hereinafter referred to as “Aunt and Uncle”). The Respondent is the child’s biological father (hereinafter referred to as “Father”).

[3] The child’s mother tragically passed away in Toronto, Canada, on April 29, 2023, while the child was in her care.

[4] Aunt and Uncle, and Father, are seeking respectively, primary residence of the child, and sole decision-making authority, together with the incidents of parenting that accompany these orders.

[5] Aunt and Uncle also seek an order permitting them to return to The Netherlands with the child once given the order that they seek.

[6] Aunt and Uncle seek supervised access for Father and child as they fear he will return to Iran with the child. They also fear the father’s temper and inability to manage a young child.

[7] Father says he will remain in Canada if granted the order he seeks, provided he is permitted to immigrate to Canada (granted permanent residency) and is able to live in Canada long term. He will otherwise have to return to either Iran or to the UAE. He offers liberal and generous access to the maternal family.

[8] The Court is asked to decide the following issues at trial:

i. Who shall have primary residence and sole/joint decision-making responsibility for this child?
ii. What will be the parenting schedule for the party that does not have this, and will there be terms placed upon such parenting time?
iii. If the Court should determine that it is in the best interests of the child to be placed in the primary care of Aunt/Uncle, is it in the child’s best interests to relocate to The Netherlands?
iv. What will the parenting schedule look like if the successful party is permitted to move the child out of Canada?

Part II – Background facts and Judicial history

[9] The biological parents of this little boy met in Iran and married there on December 11, 2017. Both parents were born and raised in Iran although Mother had obtained status in Canada some years earlier when she attended Canada as a student.

[10] The marriage was fraught with conflict. Aunt and Uncle and Maternal Grandmother report continual acts of intimate partner violence perpetrated on Mother by Father. Father denies that he was assaultive to Mother. He states that Mother had mental health challenges and that she was assaultive to herself. Father states that the parties had disagreements as all married couples do. He reports that the maternal family was far too involved in their lives creating tremendous conflict.

[11] The parties appear to have separated a couple of times before their son was born. They separated permanently almost immediately after the child’s birth. Mother returned to live with the maternal grandparents during each period of separation.

[12] Aunt and Uncle report that Father took the child from his mother at the hospital on November 7, 2019, (when the child was 16 days old) refusing to return him to her care until December 9, 2019, more than 30 days later. The child was brought to see his mother only once during that period. Father argues that he took the child at the request of Mother as she was recovering from a difficult birth.

[13] There is evidence that during that period Father was involved with another woman who called the child her own and gave the child a new name, that of the paternal grandfather. This has raised alarm bells with Aunt and Uncle fearing that Father may have obtained legal identification documentation for the child in a different name in Iran.

[14] Mother commenced a court action in Iran and was awarded custody by court order dated November 29, 2019. The Order was made final on February 9, 2020. Father was given access under the Iranian court order. He reports that Mother rarely allowed him time with the child and frequently breached the court order.

[15] The parents reconciled in 2021 for approximately 3 days according to the Maternal Grandmother. The parents then separated for the final time. The Maternal Grandmother reports that Mother was once again assaulted by Father in front of the child, the child was also pushed, police were called, and Mother went to the hospital for medical attention. A medical report/note from hospital has been submitted in evidence.

[16] Mother had been diagnosed with colon cancer in late 2020. The cancer had advanced to stage 4 and Mother was very ill. After the parties separated in 2021, Mother, child and the maternal grandparents moved to Toronto Canada.

[17] Father reports that Mother moved without his knowledge and that she forged his signature on documentation to secure the child’s entry into Canada. Father states once he learned of the child’s whereabouts, he was not able to come to Canada because of the Covid-19 pandemic and that Mother permitted him only sporadic communication with the child thereafter.

[18] Father reports that the child was in Canada for many months before Mother allowed him to visit with the child on WhatsApp. Mother finally allowed Father to have a virtual visit with the child in or around October 2022. She also apparently taught the child to say, “Daddy I hate you”.

[19] It is Father’s position that Mother took active steps to marginalize him in the child’s life placing roadblocks in the way of reasonable and meaningful parenting time, both before arriving in Canada and after.

[20] Father reports that he came to Canada as soon as he could after he learned of Mother’s passing. He arrived in July 2023.

[21] Aunt and Uncle (and maternal grandmother) claim that they have no knowledge of forged documentation. Rather, they report that Mother had to leave a violent situation with Father and further, that she required medication in Canada that could not be obtained in Iran.

[22] Before Mother’s death she introduced the child to Aunt and Uncle who reside in The Netherlands. Mother planned that her sister and brother-in-law would become the child’s guardians and care for him after her death. She made a Will to this effect dated March 2, 2022.

[23] Mother also commenced an action at the Ontario Court of Justice in Toronto to secure sole decision-making responsibility and various incidents of parenting in Ontario on a final basis. Mother essentially sought an order in Ontario recognizing, at the same time varying, the order that she obtained in Iran. Father commenced an action in Iran, without notice to Mother, placing the child in Father’s care and was granted an order compelling Mother to return with the child to Iran. She never returned to Iran.

[24] Father learned of Mother’s passing when he received a Form 14B Notice of Motion and supporting material, seeking an order withdrawing the Ontario Court of Justice action.

[25] Father arrived in Canada on July 17, 2023. He tried to see the child, but the maternal family denied him. He then retained counsel and sought Court relief. He had his first supervised visit with the child on October 16, 2023.

[26] Through various Court orders Father has increased his parenting time such that he now has unsupervised access on Tuesday nights for 1.5 hours. He must remain at the local library.

[27] He also has unsupervised access on Saturdays between 10 a.m. – 4 p.m. He must remain at his apartment building with the child.

[28] Father reports that Aunt and/or Uncle have remained parked outside both the library and the apartment on each visit and for the entire time that the child is with Father.

[29] Father has remained in Canada since July 2023, residing with his nephew. He has obtained a three-year work permit however has not been able to get a Social Insurance Number as his passport is being held by his Counsel under court order. At the time of trial, he was not employed in Canada, although he reports that he continues to run his businesses in the Middle East.

Part III – Evidence

1. The Court has read the following affidavit evidence filed by the parties:

• Affidavit of Fatemeh Moeinalsadati, sworn August 13, 2024;
• Affidavit of Jornt Hermen van der Wiel, sworn August 13, 2024;
• Affidavit of Sanaz Mirzaei, sworn August 13, 2024;
• Affidavit of Sara Dennis-Marineau, sworn August 14, 2024;
• Affidavit of Ivan Vukovic, sworn August 14, 2024;
• Affidavit of Shabnam Metanat Torpi, sworn August 13, 2024;
• Affidavit of Aliakbar Yamohammadi, sworn August 26, 2024;
• Affidavit of Masoumeh Yamohammadi, sworn August 26, 2024;
• Affidavit of Alireza Mirzamohammadali, sworn August 25, 2024;

[30] The Court has heard viva voce testimony from these affiants.

[31] The Court has also heard viva voce testimony from the following:

• Dr. Majid Nikouei (Qualified Expert in Iranian Criminal Law)
• Shari Burrows (Clinician OCL)
• Kevin Khaled Kermanshah (Friend of Paternal Family and business partner of Father)

[32] Aunt/Uncle relied on text messages between Mother and Father that they found on Mother’s laptop and cell phone.

[33] The Court has only relied on the text messages sent by Father to Mother for the truth of their contents. Father has not denied that he sent these messages. These messages fall within the admissions exception to the hearsay rule.

[34] The Court has only relied on the text messages sent by Mother to Father to provide context for Father’s text messages to her. The Court has not relied on Mother’s text messages for the truth of their contents.

Part IV – The Parties and Child – Uncontested Facts

Child

[35] The child is 5 years old. He is currently living with the only consistent caregivers that he has known, his maternal grandparents. Unfortunately, the maternal grandparents are not able to permanently plan for the child. The maternal grandmother has breast cancer. The maternal grandfather has numerous health concerns.

[36] The maternal grandparents support the child living with Aunt and Uncle in The Netherlands.

[37] Mother was quite ill with Stage 4 Colon Cancer for most of this child’s young life. She died when he was only 4 years old and although she did her best, she was unable to parent the child the way she would have hoped given the severity of her own condition.

[38] At her passing the child had few friends as his mother was unable to arrange play dates or activities outside of the home.

[39] The child was not speaking at an age-appropriate level largely because his grandparents and mother speak Farsi and the child is surrounded by English within the community. He was not properly toilet trained. He exhibited some serious behavioural issues at home and in the classroom, which have raised concerns about the child’s mental health. The child was not eating or sleeping well.

[40] Since Mother’s passing and the injection of numerous professional supports, together with the support of Aunt and Uncle, the child has made many gains. There continue to be concerns, particularly behavioural concerns, which behaviour is described as “markedly different from that of an average child” [1].

[41] The child now enjoys reading books. He often asks Aunt to read him 3-4 books before bed.

[42] The child is described as very loving and happy. He loves going to school, having just started a new school this academic year. He also enjoys his before and after school care. He has a lot of friends. He continues to require intensive support at school to ensure his safety and the safety of other children.

[43] The Court is advised that a referral to CAMH for his behavioural challenges has been rejected due to the child’s young age. Other resources are being considered.

Aunt

[44] Aunt is 40 years old. She and her husband have one daughter of their own who is 10 months older than the child.

[45] Aunt and Uncle met while studying in Italy and were married in 2011. They reside in The Netherlands.

[46] Aunt has three masters’ degrees.

[47] Aunt is employed as a “Registered Valuer” for a commercial real estate and investment firm.

[48] Aunt and Uncle share the responsibility of raising the child. She spends several months in Canada while her husband is with their daughter in The Netherlands. They will then switch. He will come here, and she will return to live in The Netherlands with their daughter.

[49] Aunt and Uncle have taken many steps to introduce the child to their daughter and to ensure that both children feel loved and welcome. Their daughter and the child have met (many times now). Aunt and Uncle report that the two children get along like siblings.

Uncle

[50] Uncle is 42 years old and is employed as a Senior Security Researcher for a cybersecurity company. He has a master’s degree in computer science from the Technical University of Eindhoven (Tu/E).

[51] Uncle and Aunt own their own home in The Netherlands, in a community which “focuses on building community and shared spaces” [2]. His parents also live in the neighborhood and are very supportive.

[52] Uncle describes himself and Aunt as “financially secure” [3].

[53] Aunt reports that Father had Uncle charged in Iran with espionage, or some similar charge, and consequently, Uncle may never return to Iran.

[54] Uncle has a very good relationship with extended maternal family. He has a very good relationship with the child.

Father

[55] Father is 44 years old. Father reports that prior to coming to Canada he resided in Dubai for 20 years. He owns a condominium there.

[56] Father is living with his nephew in Canada, in his nephew’s bachelor apartment.

[57] Father reports that he studied to be an electrician in school. He wanted to study law but had to leave school early as the result of the health of his parents.

[58] Father and his family own and operate several businesses in the Middle East, primarily in Dubai and Tehran, selling electrical elements. Father has been operating this business since 2007 and continues to run these businesses from Canada.

[59] Father wants to start a business in Canada and in the United States with a family friend. The new business is in the food industry.

[60] Father reports that he will remain in Canada provided he can get legal status. Without permanent residency he is unable to remain here and will have to return to live in Dubai.

[61] Father deposed that he was an equally involved parent prior to the parties’ separation.

[62] Father reports that he still has a lot of family in Iran. He would one day like to take his son to Iran to meet the extended paternal family. For the time being he wishes to remain in Canada with his son.

[63] Father asserts that the child, the maternal family and the paternal family are Iranian. The child has the right to know his origins.

[64] He asserts that he respects the maternal family and the relationship that the child has with them and will ensure that the child remains connected with them.

Part V – Assessment of the Evidence and Findings on Contested Facts

Maternal Grandmother

[65] The Maternal Grandmother gave testimony. The Court did not find the Maternal Grandmother’s evidence credible or reliable [4].

[66] The Maternal Grandmother does not like Father. She does not trust him. Her dislike of Father goes back to the time of her daughter’s marriage to Father. She commented in her affidavit that he did not have a university degree like her daughter. In other words, he was not good enough for her daughter.

[67] The Court finds that the deceased Mother was afraid to tell her parents that she was continuing a relationship with Father. Much later, Mother did not wish her parents to know that she was communicating with members of Father’s family.

[68] The Maternal Grandparents support the child residing with the Applicants in The Netherlands. The evidence given by the Maternal Grandmother was tainted by this overall goal.

[69] The Maternal Grandmother was evasive in answering any questions that related to the child’s move to Canada in 2021 and yet she had no difficulty recollecting examples of intimate partner violence perpetrated by Father, or other evidence that served her purposes.

[70] The Maternal Grandmother’s demeanour in the Courtroom was indicative of her disdain for Father. She remained at the back of the Courtroom rolling her eyes or shaking her head.

Aunt and Uncle

[71] Aunt and Uncle do not respect Father. They believe that Father was abusive to the deceased Mother before her death (perhaps the child as well) and that he is likely to abuse the child going forward.

[72] Aunt and Uncle believe that Father seeks primary residence of the child only to support his application for status in Canada. They do not trust his motives, nor do they trust him.

[73] Aunt and Uncle worry that Father will gain primary residence of the child and immediately move to Iran which is not a signatory to the Hague Convention. They will never see the child again.

[74] The facts upon which Aunt and Uncle rely are largely gained by hearsay – what the deceased Mother told her sister before her death, what Aunt then told Uncle after speaking with the now deceased Mother, and what the Applicants have read on the deceased Mother’s laptop and mobile telephone.

[75] The Court finds that the reliability of Aunt and Uncle’s evidence as it relates to Father and his ability to parent has been gravely tainted by their perceptions of this intimate partner violence between deceased Mother and Father. Their evidence is therefore not reliable.

[76] Aunt and Uncle must return to reside in The Netherlands. Their evidence is also strongly impacted by their desire to move the child to The Netherlands with them.

[77] Aunt and Uncle’s evidence in relation to the child and his needs is much more credible and reliable.

[78] The Court finds that Aunt and Uncle presented clear, cogent and compelling evidence in relation to the immediate needs of the child, the child’s life in The Netherlands and services available to the child there. Both Aunt and Uncle were intimately familiar with the child’s needs. Aunt and Uncle have had an immeasurable and positive impact on this child’s life in their efforts to meet the needs of the child.

[79] Aunt and Uncle love this child deeply. There is no doubt that they have researched and explored, turned every stone, to ensure that this little boy transitions through the loss of his mother and his special needs as positively as possible.

[80] Aunt and Uncle, as academics, have approached these challenges academically and scientifically, and have followed the advice of professionals throughout.

[81] The Court finds that they have truly tried to put the child’s best interests on the top of the page, at all times, while still caring for and engaging their own daughter.

Father

[82] Father has been in a difficult position as regards parenting the child since 2021, more particularly since he came to Canada in July 2023. Father does not speak English, and although invited by Court Order, he does not understand much of what is said at medical appointments and school interviews. He is often accompanied by his nephew who assists with translation, but not always.

[83] Father’s every move with the child is monitored by Aunt and Uncle. He has had to seek judicial intervention to gain any type of parenting time with the child. He has had to surrender his passport to Counsel.

[84] Aunt and Uncle have resisted providing to Father the names and addresses of child’s school, day care, and even specialists. Aunt and Uncle have prevented dissemination of this information claiming that Father is a flight risk and that he will scoop the child and take him to Iran.

[85] Father could have taken many steps to find out surreptitiously where the child attends school and day care. There is no evidence that he has done so.

[86] Aunt and Uncle communicate with Father only in English. Aunt speaks fluent Farsi but refuses to communicate in Father’s primary language.

[87] Father reports that Aunt and Uncle encourage the child to call Father by his first name rather than Father or Dad. Aunt and Uncle do not deny that the child has called Father by his first name, claiming that they do not tell him what to call Father but let him decide himself.

[88] Father has not been given an opportunity to fully parent the child given the extensive limitations placed on him. Aunt and Uncle have gone out of their way to keep Father uninformed.

[89] Having said that, the Court is not persuaded that Father was an engaged parent prior to the child coming to Canada. The parties really did not reside together for any length of time after the birth of the child and Father never really parented the child.

[90] Father did very little to engage the child after the child came to Canada. Father asserts that he was unable to come to Canada because of the pandemic. The Court finds that there were opportunities for Father to come to Canada between 2021 and 2023 and he chose not to do so.

[91] Father has failed to take any initiative while in Canada to research services for the child or to engage in a mature manner with Aunt and Uncle to find supports for the child.

[92] The Court finds that despite knowing Aunt and Uncle’s daily routine for the child, and despite knowing concerns for the child’s sleep and wellness, Father continues to feed the child foods and candy that he is asked not to and behave in a juvenile manner as pertains to Aunt and Uncle’s requests.

[93] Father may be buying sweets and the child’s favourite foods during limited parenting time to ensure that the child has a good time on visits, but this is not in the child’s best interests. This child, with his special needs, requires consistency among his team of care providers.

[94] Ms. Burrows stated that she cautioned Father about discussing adult matters in front of, or with, the child. She observed him doing so.

[95] The Court finds that Father was forthright in his answers and was generally credible on matters related to his intention to remain in Canada. Father reported that if he is unable to gain status in Canada he will return to the Middle East. He further reported that he has a large family in Tehran and wishes to take the child to meet his family when he is older.

Office of the Children’s Lawyer

[96] The OCL clinical investigator Ms. Shari Burrows delivered her s. 112 [5] Report respecting this child on June 10, 2024. In her Report, Ms. Burrows provides a series of recommendations to include supervised virtual and in person visits between Father and child.

[97] Ms. Burrows was called as a witness at trial. Father raised concerns at trial with respect to Ms. Burrows’ position. He argued that Ms. Burrows did not do an independent investigation but instead, accepted the position of Aunt/Uncle without equivocation. He argued that Ms. Burrows’ recommendation on parenting time was based on racial bias.

[98] The Court finds that Ms. Burrows carried out a comprehensive assessment of this family. She met with the parties and the child several times. She met with the parties with the child.

[99] Ms. Burrows’ narrative is consistent with that heard at trial from the parties.

[100] Ms. Burrows however provides little or no foundation for her recommendation that parenting time between child and Father should be supervised. Essentially when confronted, Ms. Burrows stated that she believed that the child should be placed in the primary care of Aunt/Uncle on a final basis, and in order for any parenting time to work, it would have to work in accordance with the wishes of Aunt/Uncle.

[101] There is some truth to that, if no other reason than the international legal framework under which this matter evolves.

[102] In addition, there continues to be the fundamental belief that primary caregivers ought to know what is in the child’s best interests and their judgment must be respected [6].

PART VI Legal considerations and Analysis

Primary Residence of the Child and Decision-Making Responsibility

[103] In all cases involving parenting issues, each of the parties bear the evidentiary burden of demonstrating where the best interests of a child lie.

[104] The Court must weigh the non-exhaustive list of factors that make up best interests, many of which are identified within section 24 of the Children’s Law Reform Act [7].

[105] Subsection 24(2) of the Act provides that the Court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining a child’s best interests.

[106] Subsection 24(3) of the CLRA sets out the list of factors for the Court to consider related to the circumstances of the child. It reads as follows:

(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Section 24(3)(a), (d), (g), (h)

[107] The uncontroverted evidence is that Aunt and/or Uncle have remained with the child continuously since Mother’s passing, and it is Aunt and Uncle, from the child’s perspective, who are his primary care providers.

[108] The Court must ascertain a child’s best interests from the perspective of the child rather than that of the parents [8]. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child [9].

[109] Aunt and Uncle began to engage more significantly in the care of the child almost as soon as the child and Mother moved to Canada, but certainly in 2022, enrolling him in daycare (including applying for the subsidy), organizing swimming lessons, retaining numerous professionals including a speech therapist, a grief counsellor, a developmental paediatrician, psychiatrist and other experts obtained through Lumenus Community Services.

[110] Aunt and Uncle have researched and made arrangements for the child to attend school in The Netherlands, first at a specialized school to learn Dutch language, and then where he will attend school with their daughter. He will also continue with the various therapeutic services that he receives now. They have reserved a spot for the child in their daughter’s before and after care.

[111] Father arrived in Canada in July 2023. Father has participated very little in the raising of the child, perhaps as the result of alienation by Mother, and then Aunt and Uncle, as Father reports, or because Father had never had a real parenting role in the child’s life and was simply not aware of what to do.

[112] Father’s plan for care of the child should he be granted primary residence is, at best, vague. He states that he will remain in Canada and continue the child’s services and programming (although he has disputed with the child’s paediatrician whether the child does have behavioural challenges at all and whether all of these services are required). Father states that he will find a residence closer to the child’s school to ensure that the child continue school in that location, although he purportedly does not know where that is.

[113] Father has raised the concern that the child, if moved to The Netherlands, will be compelled to learn a third language when he has already struggled so much with English.

[114] Father reports that if he cannot get status in Canada he will return with the child to Dubai. He has provided no evidence of a plan for the child in Dubai.

[115] Father has provided no plan as pertains to continued contact with the maternal family should the Court award him primary residence and decision-making responsibility.

Section 24(3)(b)

[116] The maternal family have been a consistent force in the child’s life. Irrespective of cause, the child has bonded with the maternal grandparents, Aunt and Uncle and has only recently been afforded the opportunity to bond with Father.

[117] Supervised parenting time notes from Renew Supervision Service reflect very positive visits between the child and Father.

[118] Uncle reports otherwise, that as soon as visits began, the child regressed. He began wetting his bed. Lumenus, who was intending on withdrawing services, decided to remain involved with the child because of these setbacks.

[119] The Court has little, if any evidence, of the relationship between the child and his Father before 2021. After 2021, Father had virtually no relationship with the child until coming to Canada in 2023.

[120] Although the law is clear that it is not up to the Court to create a relationship that did not previously exist [10], Father argues that he has been disadvantaged in this litigation by maternal family’s alienation of him in the child’s life. The Court agrees.

Biological Ties to the Child

[121] Father asserts that he should have some priority in the determination of primary care given that he is the biological parent to the child.

[122] The law is settled in this area. Although the biological relationship of a parent to a child is one factor for the Court to consider, it is one factor weighed against many others that may be relevant to a child’s best interests. There is no presumption in favour of biology [11].

Section 24(3)(c)

[123] The Court finds that Aunt and Uncle pay lip service to Father’s ongoing relationship with the child but have no intention of following through once they get to The Netherlands.

[124] Father succeeded in gaining parenting time with the child only through litigation. Aunt and Uncle at no time consented to this parenting time or to any increases in parenting time. Aunt and Uncle’s litigation conduct demonstrates that they do not prioritize the child’s relationship with Father.

[125] Aunt and Uncle interfered with Renew supervised visits when Father had a Farsi speaking supervisor. The Court finds that interfering in that supervision arrangement, despite Aunt’s concerns, was self-serving and detrimental to Father’s success with parenting time. Aunt simply did not want Father to have an opportunity to develop a relationship with the child.

[126] Aunt and Uncle continue to seek fully supervised parenting time, even video conferenced parenting time once the Court case is determined.

[127] The Court is not persuaded that Aunt and Uncle will take steps to ensure that the child continues to have contact with Father once the Court process is finished.

[128] The Court has similarly modest confidence in Father’s willingness to ensure that the maternal family continues to have a strong relationship with the child.

[129] Father argues that he understands and supports the relationship that the child has with the maternal family. He makes no proposal as to how he will ensure that this relationship continue.

Section 24(3)(j) Family Violence

[130] Aunt/Uncle have led a great deal of evidence about the violence they allege was perpetrated on Mother by Father, possibly in front of the child.

[131] Aunt/Uncle attempted to establish through eyewitness accounts, text messages and Iranian criminal records that intimate partner violence took place, Father being the perpetrator.

[132] Aunt/Uncle argued that Father attempted to control Mother by financial means, failing to provide her with adequate support during and after the birth of the child.

[133] Father disputes these allegations, and his sister denies the content of her text messages with Mother.

[134] The Court does not have to find that there was intimate family violence in the criminal context. Given the evidence before the Court, it is more likely than not that Father perpetrated physical abuse on Mother.

[135] Equally impactful however, the Court finds that Father, in taking the child from his mother, at 16 days of age, for a period of 30 days with virtually no contact between Mother and child, was not only cruel to Mother but extremely cruel to the child. This act epitomizes emotional harm, possibly physical harm to the child and most certainly domestic abuse.

[136] The Court does not believe that such an act was at Mother’s behest. Mother reported Father to the police and sought court action to have the child returned to her.

[137] The deliberate act of unilaterally taking a newborn away from his mother for a period of weeks, speaks volumes about this father, his controlling attitude toward Mother and child, his disregard for the child’s needs, his self-interest.

[138] The Supreme Court of Canada in Barendregt v. Grebliunis [12] made several observations about family violence including the following:

1. The recent amendments to the Divorce Act recognize that findings of family violence are critical consideration in the best interest’s analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator's parenting ability is untenable.

Part VIII – Relocation

[139] Sections 39.3 and 39.4 of the Act provide a comprehensive framework that governs relocation.

[140] In determining whether to permit the relocation of a child, the Court is again required to consider the best interests of the child in accordance with section 24 of the Act, as well as the factors at subsection 39.4 (3) of the Act, which are as follows:

(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance.

[141] In Barendregt [13] the Court interpreted these relocation provisions as follows:

1. The parent who cares for the child on a daily basis is in a unique position to assess what is in their best interests: Gordon, at para. 48. This logic applies to both parents in a shared parenting arrangement, and accordingly, both of their views are entitled to great respect in an assessment of the child’s best interests. This makes sense: a court always pays careful attention to the views of the parents. In my view, it adds little value to this analysis to label it a separate principle of “great respect” [14].
2. The court shall consider all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive [15].
3. At paragraph 154 the Court writes:

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interest of the child and any applicable notice requirements, a court should also consider:
• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child's life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, agreement, and the likelihood of future compliance. The court should not consider how the outcome of an application would affect either party's relocation plans - for example, whether the person who intends to move with the child would relocation without the child or not relocate…"

4. The additional support of family and community at the new location can enhance the parent’s ability to care for the children [16].
5. It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, “the reality that the nurture of children is inextricably intertwined with the well-being of the nurturing parent” is far from novel. A child’s welfare is often advanced in tandem with improvements in the parent’s financial, social, and emotional circumstances. The trial judge found this to be the case here [17]. See: paragraph 173.

[142] Courts recognize that advances in technology have made it possible to enjoy parenting time from a distance and to facilitate contact with the other parent [18].

Section 39.4(3)(a),(d) and (g)

[143] Aunt/Uncle reside in The Netherlands. As afore stated, Aunt/Uncle have always taken the position that they will return to live in The Netherlands once a decision is made by this Court and will relocate the child to The Netherlands.

[144] Aunt/Uncle have obviously complied with notice requirements, and although resistant, have always complied with Orders of this Court.

Section 39.4(3)(b)

[145] The Court finds that there will be an impact, perhaps developmentally adverse impact, on the child should he be permitted to relocate to The Netherlands. The child will have to learn a new language, make new friends, adjust to a new homelife and country. This child already suffers from developmental and behavioural delay.

[146] The Court finds however that the benefit to the child in relocating with Aunt/Uncle, far outweighs any adverse impact that will be suffered by the child should the child lose the day-to-day parenting and guidance of Aunt/Uncle in his life. Aunt/Uncle have become parents to this child. He completely relies on them and needs them for his emotional, psychological and physical safety.

Section 39.4(3)(f)

[147] Aunt/Uncle have made a proposal to ensure contact between Father and child.

[148] The Court finds that the proposal is insufficient to protect the Father/child relationship and enhance bonding.

Part VIII – Parenting time

[149] In determining Father’s parenting time, the Court must consider the relevant best interests considerations set out above.

[150] In particular, subsection 24 (6) of the Act states that in allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[151] Where distances are longer between the parents’ homes, the Court may order less frequent, but longer parenting time [19].

[152] Aunt and Uncle proposed a parenting time plan for Father once the relocation to The Netherlands takes place.

[153] Father did not propose a parenting plan if the Court permitted the child to relocate with the Applicants.

[154] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require a gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. Although the child may be at some risk of an illegal removal from this country and should be protected from that risk, I am not satisfied that supervised access would achieve that end or that it would be in his best interests. The child has had access with his father on an unsupervised basis for more than a year.

[155] Father has had unsupervised parenting time with the child since December 2023. Father seeks to increase his time with the child. Father seeks to have time with the child in the evenings and mornings, to parent the child as he would be able to do were his family intact. This type of consistent parenting will ultimately be in the best interests of the child.

[156] The Court finds that Father’s parenting time with the child has gone reasonably well. Father has many obstacles in his way of parenting, but he has been committed to ensuring that a relationship develops between himself and the child.

[157] The child has faced many challenges. The Court will not put this child in a position that results in developmental set back because integration of parenting time between the child and Father is rushed.

[158] The Court will be cautious with the gradual increasing of parenting time. It is the intention of this Court that parenting time between the child and Father will increase as the child ages.

Children’s Law Reform Act s. 37 – Posting Security

[159] Father has been quite frank in his position that he will return to live in Iran or UAE with the child should he not be granted immigration status in Canada.

[160] Aunt/Uncle are afraid that Father will take the child to Iran and not return, leaving them without remedy. Father has previously removed the child from the care of maternal family without consent.

[161] The Court may order security for the safety of the child [20]:

Court orders, removal and return of children to prevent unlawful removal of child

37 (1) Where a court, upon application, is satisfied upon reasonable and probable grounds that a person prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child from Ontario, the court in order to prevent the removal of the child from Ontario may make an order under subsection (3).

(2) Where a court, upon application, is satisfied upon reasonable and probable grounds that a person entitled to parenting time or contact with respect to a child proposes to remove the child from Ontario and is not likely to return the child to Ontario, the court in order to secure the prompt, safe return of the child to Ontario may make an order under subsection (3).

(3) An order mentioned in subsection (1) or (2) may require a person to do any one or more of the following:

1. Transfer specific property to a named trustee to be held subject to the terms and conditions specified in the order.
2. Where payments have been ordered for the support of the child, make the payments to a specified trustee subject to the terms and conditions specified in the order.
3. Post a bond, with or without sureties, payable to the applicant in such amount as the court considers appropriate.
4. Deliver the person’s passport, the child’s passport and any other travel documents of either of them that the court may specify to the court or to an individual or body.

(4) The Ontario Court of Justice shall not make an order under paragraph 1 of subsection (3).

(5) In an order under paragraph 1 of subsection (3), the court may specify terms and conditions for the return or the disposition of the property as the court considers appropriate.

(6) A court or an individual or body specified by the court in an order under paragraph 4 of subsection (3) shall hold a passport or travel document delivered in accordance with the order in safekeeping in accordance with any directions set out in the order.

(7) In an order under subsection (3), a court may give such directions in respect of the safekeeping of the property, payments, passports or travel documents as the court considers appropriate.

Part VIII – Conclusion

Primary Residence and Decision-Making

[162] The Court will not take this child away from the only caregivers that he has ever known [21]. This young child cannot be expected to go through any further loss in his life at this time. The maternal family provides the physical, emotional and psychological safety, security and well-being that the child deserves, and that is in his best interests.

[163] The decision to award Aunt and Uncle primary residence in this case, given the overwhelming facts that support this decision, is a foregone conclusion.

[164] Having considered all the evidence, the Court finds that Aunt and Uncle have continued to be primarily responsible for initiating and maintaining contact with all professionals involved with the child. Aunt and Uncle have been the first to recognize, identify and begin dealing with the child’s challenges.

[165] It is Aunt and Uncle to whom the child turns when he needs comfort.

[166] Recognizing the inherent limitations placed on Father’s parenting, he has still taken little or no initiative.

[167] The Court grants the Applicants primary residence of the child.

Decision Making Responsibility

[168] The Court has wide discretion to tailor a decision-making framework that is specific to this family and promotes and supports the best interests of the child.

[169] It is clearly in the child’s best interests that the parties work cooperatively in making decisions for the child together, to give each party a meaningful role in the child’s life [22]. The parties need to develop trust between them in the best interests of the child. The child is very young and is unable to easily communicate his physical, emotional and developmental needs. The need for effective communication is essential.

[170] Given the unique dynamics in this case (including geography, lack of trust, failed communication), however the Court is not persuaded that a joint decision-making regime could or will succeed [23].

[171] Aunt and Uncle shall have sole decision-making responsibility, with the qualification that Father is entitled to provide input on decisions being made, particularly relating to the child’s education and medical treatment.

[172] By input, it is intended that the parties will take all reasonable steps and make all reasonable efforts to engage in discussions about such decisions.

i. Aunt and Uncle will advise Father of the issue to be decided.
ii. Unless emergent, Father will respond to Aunt and Uncle within two weeks of the issue being raised.
iii. The parties will dialogue in writing (pursuant to the communication rules set out below).

[173] In the event that the parties cannot agree, and a period of 30 days has lapsed, Aunt and Uncle will have the final decision.

Relocation

[174] Aunt and Uncle reside in The Netherlands, and it has always been their position that if they are successful in gaining “custody” of the child, they will return to live with him in The Netherlands. It is not possible for them to do otherwise.

[175] Aunt and Uncle shall be permitted to relocate the child to The Netherlands at the end of the 2024/2025 school year.

Parenting Arrangements

[176] The difficulty and complexity of this case lies in the parenting time requests. There have been strident positions advanced by the parties, including competing principles and values that cannot be easily resolved.

[177] The child is entitled to have a relationship with his father and with his paternal family, free of interference from the maternal family.

[178] The Court does not believe that such a relationship will be encouraged by the maternal family once this litigation is completed. The Court must therefore make an order that leaves little room for debate in order to allow the Father/Child relationship to grow and evolve organically.

[179] Father argues that a restriction on Father’s unsupervised time with the child because he is Iranian, is “racist”. He disputes the OCL recommendations as based on racist foundations.

[180] The Court disagrees. The fact is that both the maternal and the paternal family are Iranian. The Iranian culture and community remain a central, positive element of the child’s life.

[181] What cannot be ignored however is that, should the child be taken by Father to Iran, not only in light of the Iranian orders that Father has already obtained, but because of the very legislation governing parenting in Iran [24], the child may never be allowed to see his maternal family again. Iranian law approaches custody from the perspective of parental rights, unlike Canada which focuses on the child’s best interests and child’s rights.

[182] Iran is not a signatory to the Hague Convention [25], meaning that the maternal family will have limited recourse should Father take the child back to Iran. Father has already shown the Court that he is prepared to take the child away from the maternal family by his actions in 2019.

[183] This would be catastrophic for this child whose mental health is fragile.

[184] Moreover, the Court is, and must be focused on this little boy and his best interests. The child is only slowly getting to know Father. Rushing this process is not in the child’s best interests. He is only 5 years old. There is plenty of time for Father and child to spend together as he ages.

[185] Father has, to date, minimized the child’s mental health challenges and special needs in favour of his own diagnosis. In doing so, Father has placed limits on himself and his ability to parent the child for extended periods of time in an unsupervised setting.

[186] The risk of the child being removed by Father to Iran warrants the Court making orders pursuant to section 37 of the Act to ensure this does not happen.

Part IX – Decision

[187] There will be a final order shall go on the following terms:

Primary residence and decision-making responsibility

a. The child shall have his primary residence with Aunt and Uncle.
b. Save as set out below, Aunt and Uncle shall have sole decision-making responsibility for the child.
c. Father may obtain information about the child directly from any of his schools, doctors or other service providers. Aunt and Uncle shall execute whatever documentation is required to facilitate this, both in Canada and in The Netherlands.
d. The parties shall consult with each other before making any major decision for the child. Aunt and Uncle shall make the final decision in the event of disagreement.
e. Aunt and Uncle shall have sole decision-making responsibility, with the qualification that Father is entitled to provide input on decisions being made, particularly relating to the child’s education and medical treatment.
f. By input, it is intended that the parties will take all reasonable steps and make all reasonable efforts to engage in discussions about such decisions.

i. Aunt and Uncle will advise Father of the issue to be decided.
ii. Unless emergent, Father will respond to Aunt and Uncle within two weeks of the issue being raised.
iii. The parties will dialogue in writing (pursuant to the communication rules set out below).

Relocation

a) Aunt and Uncle may relocate the child to The Netherlands at the end of the child’s present school year.

Travel and documents

b) Aunt and Uncle may obtain and renew all Canadian and Dutch documentation for the child, including passports, birth certificates and health cards, and Dutch citizenship without Father’s consent. Aunt and Uncle shall be the custodians of all the child’s documents.

c) Aunt and Uncle may travel outside of Canada and abroad with the child, without the consent of Father. Aunt and Uncle shall advise Father of any vacation with the child, including destination, and will arrange virtual visits between child and Father during these vacations.

d) Father shall not remove the child from the Greater Toronto Area during his parenting time with the child.

Parenting time

e) Subject to f) below, Mr. Yamohammadi will have parenting time pursuant to the temporary order of Pawagi, J., dated December 2023.

f) Upon entering into a bond-recognizance in the sum of $30,000, that is to be immediately deposited in full, in cash, with the Court by Mr. Yamohammadi or by a surety on his behalf, Aliakbar Yamohammadi will have parenting time with the child, Farnam Yamohammadi, on the following terms:

I. Father shall have the following unsupervised parenting time with the child until the child relocates to The Netherlands:

1. Every Tuesday night from 5:00 p.m. – 6:30 p.m.; Exchanges to take place inside the entrance of the Deer Park Library;
2. Each Saturday from 10:00 a.m. – 5:30 p.m., exchanges to take place inside the lobby of Father’s home address;
3. On the third Saturday of every month, parenting time shall be from 10:00 a.m. Saturday morning, overnight until Sunday at 2:30 p.m.; Father’s first overnight with the child will be on March 15, 2025;
   a. Father will have the child in his care at all times during his parenting time;
   b. Aunt and Uncle will have a virtual call with the child on Saturday night at 7:00 p.m. before he goes to bed; Father to organize virtual call;
   c. Aunt and Uncle will have a virtual call with the child on Sunday morning at 10:00 a.m. once the child is awake; Father to organize virtual call;
   d. Father will follow the child’s dietary restrictions imposed by Aunt and Uncle;
   e. Father will follow the child’s sleep routine imposed by Aunt and Uncle;
   f. Parties will update each other in respect of the child’s health, daily routine, sleep and eating patterns via communication platform;
4. Virtual parenting time each Wednesday night at 6:00 p.m. for no longer than 15 minutes; Aunt and Uncle to organize the virtual call for the child and to contact Father;
5. Virtual parenting time with Father on Father’s Day at 6:00 p.m. for no longer than 15 minutes; Aunt and Uncle to organize virtual call for the child and to contact Father;
6. Father shall not be permitted to remove the child from the Greater Toronto Area at any time without express written and notarized consent of Aunt and Uncle.
7. Upon request and receipt of an original court order or certified copy of the order, pursuant to s. 36 CLRA [26], the police service having jurisdiction in any area where it appears that the child, Farnam Yamohammadi, may be, shall locate, apprehend and deliver the child to either of the Applicants, Sanaz Mirzaei or Jornt Hermen van der Wiel, at Toronto Police Headquarters or as specified by the Applicants, if the child is not returned to the Applicants at the end of the Respondent Father’s unsupervised parenting time.
8. For the purpose of locating and apprehending the child, a member of the police service may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
9. Father will continue to deposit his passport(s) and all travel documentation with his Counsel until the child relocates to The Netherlands, at which time Counsel is permitted to release all of Father’s legal documentation to him.

II. Once the child relocates to The Netherlands, Father shall have unsupervised parenting time with the child as follows:

1. Virtual parenting time each Wednesday night at 6:00 p.m. (Central European time), for no longer than 15 minutes; Aunt and Uncle to organize the virtual call for the child and to contact Father;
2. Aunt and Uncle will also arrange a virtual call between Father and child each Father’s Day at 6:00 p.m. (Central European Time) for no longer than 15 minutes;
3. The child shall be entitled to contact Father by virtual methods at any other reasonable time;
4. Two non-consecutive weeks per year in Toronto, Canada, to be seven days each; subject to further agreement between the parties in writing and notarized, the second week of the child’s Christmas school break and the first week of July each year;
   a) Father shall have parenting time the first four days of the visit from 10:00 a.m. to 5:30 p.m.;
   b) Father shall have parenting time on the 5th day of the visit from 12:00 p.m. until 2:30 p.m. on the 6th day;
   c) Father shall have parenting time on the 7th day from 10:00 a.m. to 2:00 p.m.
5. Exchanges will take place inside the lobby of Father’s home address.
6. Father shall deliver his passport to Aunt/Uncle on the first of 7 day period. Aunt/Uncle will return the passport to Father on the last of the 7 day period. Aunt/Uncle shall hold the passport or travel documentation delivered to them in safekeeping.
7. Father shall have the child in his care at all times during his parenting time.
8. Father shall not be permitted to remove the child at any time from the Greater Toronto Area without express written and notarized consent of Aunt and Uncle.
9. Upon request and receipt of an original court order or certified copy of the order, pursuant to s. 36 CLRA [27], the police service having jurisdiction in any area where it appears that the child, Farnam Yamohammadi, may be, shall locate, apprehend and deliver the child to either of the Applicants, Sanaz Mirzaei or Jornt Hermen van der Wiel, at Toronto Police Headquarters or as specified by the applicants, if the child is not returned to the Applicants at the end of the Respondent Father’s unsupervised parenting time.
10. For the purpose of locating and apprehending the child, a member of the police service may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
11. The cost of air flights for the child to have these 7 days visits shall be shared by the parties. Father shall reimburse Aunt and Uncle for 50% of the child’s cost of airplane ticket to Toronto, returning to The Netherlands.
12. Father shall have liberal and generous unsupervised daily parenting time (no overnights) with the child in The Netherlands, as the parties can arrange, subject to the child’s schedule. The cost of attending to visit the child in The Netherlands will be borne by Father.
13. Should the Father exercise this parenting time he shall deliver to Aunt/Uncle his passport and/or travel documentation at the beginning of the visit. Aunt/Uncle shall keep this documentation in safekeeping and return such documentation at the end of each visit.

Communication

g) The parties shall communicate in Farsi, in writing only through a parenting communication platform such as Our Family Wizard, Talking Parents or AppClose.

h) The communications between the parties should be brief, respectful, and only relate to issues pertaining to the child.

i) Each party shall respond within 48 hours of any communication from the other party, provided it is related to the child, unless in the case of an emergency.

j) The parties shall keep each other informed as to their current contact information, including their telephone number, email address and residential address.

k) If the child becomes ill or in need of medical assistance while in the care of one party, that party will notify the other party as soon as it is reasonably possible.

l) Neither party shall make negative comments about the other party in the presence of the child or discuss past or present legal proceedings with the child.

m) The parties shall use their best efforts to ensure that their friends and family members do not speak negatively about the other party in the presence of the child.

n) The parties shall encourage the child to have a good relationship with each other and the other party’s extended family.

o) The parties shall not share communication or adult discussions with the child or third parties, except for counsel, without the other’s consent.

p) The parties shall ensure that all information or documentation pertaining to their interactions, including all personal correspondence or email communications and court documents, are not accessible to the child.

Other orders

q) If either party seeks costs, they shall serve and file written costs submissions by March 31, 2025, at 4:30 p.m. The other party will then have until April 30, 2025, to serve and file their written response (not to make their own submissions). The submissions shall be no more than 6 pages, not including any bill of costs or offer to settle. The submissions may be emailed to:
311Jarvis.JA@ontario.ca

r) All other claims by the parties not dealt with above are dismissed.

Part X – Closing

[188] This case has been unusually difficult to decide because, as discussed above, the unique and competing interests of the parties are irreconcilable against various factors relevant to the best interests of the child, particularly concerning Father/child parenting time within the international legislative framework.

[189] The Court is advised that a Canadian Court Order cannot be registered / confirmed in Iran. The Court is advised that Canadian Court Orders are not enforceable in Iran.

[190] The Court is advised that there is no way of registering/confirming a Canadian Order with any authority to preclude the child from being taken to Iran. There is no Iranian Embassy in Canada. All Canadian/Iranian consular activities are dealt with through the Canadian Embassy in Ankara, Turkey.

[191] Similarly, the Court is advised that a Canadian Court Order cannot be registered/confirmed in The Netherlands, although a signatory to the Hague Convention.

[192] The Court acknowledges the capable efforts of both counsel in preparing for, and presenting evidence in, this matter. The Court has been vigilant in its review and consideration of the evidence given at trial. Not all of the evidence reviewed is specifically addressed in this decision.

Madam Justice Sandra J. Meyrick

Footnotes

[1] Affidavit of Jornt Hermen van der Wiel, August 13, 2023; paragraph 72
[2] Affidavit of Jornt Hermen van der Wiel, sworn August 13, 2024 par 8
[3] Ibid, par 11
[4] MAB v MGC, 2022 ONSC 7207 (SCJ) - Chappel, J. sets out the legal principles for assessing credibility and reliability
[5] Courts of Justice Act, R.S.O. 1990, c. C.43, as amended
[6] Chapman v. Chapman (2001), 201 DLR (4th) 443
[7] Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended; The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480
[8] Gordon v. Goertz
[9] Young v. Young; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510
[10] Chapman v Chapman (2001), 201 DLR (4th) 443
[11] B.J.T. v. J.D., 2022 SCC 24
[12] Barendregt v. Grebliunis, 2022 SCC 22, [2021] SCJ No 101, 2022 CFLG par 27, 886
[13] Barendregt v. Grebliunis, 2022 SCC 22, [2021] SCJ No 101, 2022 CFLG par 27, 886
[14] Ibid, at par. 119
[15] Ibid, par. 153
[16] Ibid, par 172
[17] Ibid; at par. 173
[18] Hussein v. Dirie, 2018 ONCJ 781; Ryall v. Ryall, 2009 ONCJ 687; Lepine-Maynard v. Majstorovic, 2022 ONSC 656; M.K. v J.K., 2020 ONCJ 387
[19] Trudel v. Ward, 2019 ONSC 5047
[20] Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended; Najjardizaji v. Mehrherdi, 2004 ONCJ 374
[21] SVG v. VG, 2023 ONSC 3206 – Chappel, J “there is no legal presumption in favour of maintaining the existing parenting arrangements”; Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); AE v. AE, 2021 ONSC 8189 (SCJ)
[22] L(L) v C(M), 2012 ONSC 3311 (SCJ) – there is no legal support for “formal equality of influence” in decision making
[23] Kaplanis v. Kaplanis, 2005 CarswellOnt 266 (CA); Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct); Brown v. Brown, 2021 ONSC 1753 (SCJ)
[24] Zargarian-Tala v. Bayat-Mokhtari, 2019 BCSC 44
[25] Hague Convention on Civil Aspects of Child Abduction, [1980], Can T.S. No. 35, effective December 1, 1983; Gonabady-Namadon v. Mohammadzadeh, 2008 BCSC 606
[26] Children’s Law Reform Act R.S.O. 1990 c. C.12, as amended
[27] Children’s Law Reform Act R.S.O. 1990 c. C.12, as amended