SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1801/01

DATE: February 14, 2013

RE: Sanaz Milanizadeh, applicant

AND:

Amir Houshang Zeinali, respondent

BEFORE: MARSHMAN J.

COUNSEL:
Erin St. James for the applicant
Edward J. Mann for the respondent
Therese Landry for the Children’s Lawyer

HEARD: February 7, 2013

ENDORSEMENT

1The father seeks unsupervised access to the children and indeed he seeks to overturn my order and have the children returned to his care. He also wanted Ramtin to appear in court or in my chambers to state his wishes. The mother wishes to continue the supervised access visits but to terminate telephone access.

2On February 23, 2011, I delivered an order changing the custody of these children pending receipt of my written order. On the same day, I made an endorsement as follows:

Incidental to custody order made today, order to go:

1. birth certificates of children shall be released to the applicant;

2. the applicant shall not change the residence of the children from Don Mills Road, Toronto, Ontario pending further order of the court.

3I do not believe that that endorsement has ever found its way into an order but the matter of the residence of the children should be dealt with at some point. I did not mean to confine the applicant to Don Mills Road forever.

4On April 12, 2011, I delivered my reasons for judgment in this matter and found that the father was alienating the children from their mother. With respect to access, I had this to say at para. 126:

The father will not have unsupervised access until I have decided that it is appropriate. I can be contacted anytime after August 24 to determine the issue of unsupervised access. I will first meet with the lawyers to determine whether the decision will be made on affidavit evidence or a brief oral hearing is necessary. I wish to make it clear that only the issue of unsupervised access will be dealt with at that time.

5Earlier in the reasons at para. 124, I had stated that “if the respondent seeks unsupervised access to the children, it behooves him to attend counselling and other programs dealing with children.”

6On December 1, 2011, I made an endorsement dealing with telephone access but had this to say with respect to the ongoing supervised access:

6My access order is not yet a permanent order as I still have hope that matters will improve and access will eventually become unsupervised. However, before such a transition is possible, the following must take place.

1. the respondent shall continue in counselling with Ms. Cowper-Smith;

2. I must be ensured that the respondent has no chance of taking the children to Iran during an access visit;

3. Ms. Cunningham should become re-involved to ascertain the children’s wishes;

4. more successful supervised access should take place.

7There has been a raft of material filed in connection with this motion and I have read all of the affidavits and all of the highlighted supervised access notes. However, I do not intend to give long reasons for this decision. With respect to the telephone access, both of the parents agree that it is not going well. The children do not enjoy the telephone access. The father sees the children once a week at supervised access and there is no reason to continue telephone access which does not appear to be serving any purpose. Indeed, in the telephone access of January 29, 2013 which is recorded, the parents take a different view of what was spoken and, since the tape is in Farsi, I am not able to say with surety which version is right. However, even if the father’s transcription of the telephone message is completely accurate, it still shows that telephone access is not going well and indeed the transcriber, who swore an affidavit, states that “it sounded like Amir Zeinali was yelling and screaming on the tape.” In telephone access, the father continues to refer to the mother by her first name. It cannot possibly be good for these children to continue to have telephone access with their father which their mother must overhear to ensure that adult issues are not mentioned. Obviously, continued mandatory telephone access is not in the best interests of the children and it will be terminated immediately with one exception. If supervised access does not take place in any given week for any reason, including the health of the children or the inability of the mother or father to arrange the access, then telephone access will occur at a time to be agreed upon between the parties during the following week for a total of 15 minutes.

8Likewise, there is nothing in the material to convince me that access should become unsupervised or custody changed. This is not a case where it would be appropriate to interview Ramtin. Ramtin is represented by the Office of the Children’s Lawyer and I am well aware of his views and preferences. Those views and preferences must be considered in light of the fact that Ramtin is an alienated child and that the alienation is ongoing.

9With respect to alienation, it is apparent that the father has learned nothing in the approximately two years since the trial took place. He continues to raise adult issues with the children during supervised and telephone access. He continues to be of the view that he is the proper parent to have custody of these children. He continues to downplay the mother’s role in the children’s lives and indeed to this day cannot refer to her as the children’s mother.

10Matters will only get worse if I allow the father to have unsupervised access. Although he may have attended some counselling sessions with Ms. Cowper Smith, there is no report and no suggestion that he has learned how to stop his alienating behaviour. If he sees the children in an unsupervised setting, he will continue to speak to the children about their health and what is wrong with them, and how their mother is failing to take them to the doctor. He will continue to discuss court proceedings with the children. He will be even more likely to attempt to get information from the children to which he is not entitled, placing the children again in the middle of the dispute between their parents. He will continue to speak ill of the mother and refer to her by her first name rather than as the children’s mother.

11Simply put, the father does not recognize that the rules are there to protect the children and that the alienating behaviour must stop. Alienation is continuing and after two years it is time to make an order for supervised access on a permanent basis. I was provided with a list of conditions which the father had agreed to. Those conditions had not been incorporated into an order. It is time that they be incorporated into an order so that the father will be clearly aware that he is not entitled to question the children about adult issues.

12The other reason for continuing the supervised access is the continued possibility that the father will take the children to Iran. Both children speak of Iran and while the father assures me that he has no ability to obtain passports for the children, I continue to have concerns that the father might attempt to flee with the children back to Iran if he were granted unsupervised access. If that were the case, the chances of the mother having any meaningful contact with the children would be remote.

13A final order will therefore go as follows:

1. The respondent Amir Houshang Zeinali’s regularly scheduled supervised telephone access with the children, Ramtin Zeinali and Tina Zeinali, shall be terminated effective immediately. Telephone access between the respondent and the children shall be pursuant to the children’s wishes and shall be accommodated and supervised by the applicant, Sanaz Milanizadeh. The applicant shall be entitled to go on a speaker phone or other device to supervise this access and shall be entitled to terminate the telephone access noted above if the respondent initiates or responds to questions relating to any adult issues.

2. There shall be additional telephone access between the children and the respondent only in the event that a supervised access visit does not take place in any given week for any reason. The said telephone access shall occur at a time to be agreed upon between the parties during the following week for a total of 15 minutes.

3. The respondent shall have supervised access for a period of one day per week for a total of two hours at the Access for Parents and Children in Ontario, 100 Sheppard Avenue East, Suite 504, Toronto, Ontario or such other supervised access location upon which the parties shall agree on the condition that the respondent shall not initiate or respond to any questions relating to adult issues, including but not limited to the following:

a) custody and access, including the current arrangement and any desired change thereto;

b) the children’s wishes with respect to custody and access;

c) the respondent’s wishes with respect to custody and access;

d) this court proceeding, including any evidence or witnesses hereto;

e) court proceedings in Iran, including any evidence or witnesses thereto;

f) the Children’s Aid Society’s past involvement with the family, including discussing the children’s statements to the Society and how any such statements may be misconstrued;

g) any potential return to Iran, including the respondent’s and/or the children’s wishes for such a return;

h) the issue of French immersion education, including any discussion of whether English or French education is better or easier for the children;

i) the applicant’s ability or willingness to parent;

j) the respondent’s ability or willingness to parent; and

k) whether and, if so, how the children have changed emotionally, socially, physically and/or mentally for the worse since entering the applicant’s custody.

4. The respondent shall not in any way discuss telephone access with the children either at supervised access visits or during telephone access. He shall not put any pressure on the children to initiate telephone calls with him.