Court File and Parties

COURT FILE NO.: FC-15-396 DATE: 2018/12/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Parisa Salmanmanesh, Applicant -and- Omid Forozandeh, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant assisted by Duty Counsel Daniel Therrien, appearing for Respondent

HEARD: November 27, 2018

Endorsement

[1] This is an urgent motion, brought by the Applicant, Ms. Salmanmanesh, seeking an Order permitting her to travel with the parties’ child to Iran in December of 2018 during the child’s school holidays.

[2] For the reasons set out below, I dismiss Ms. Salmanmanesh’s motion.

Factual Context

[3] The parties married on August 5, 2002. They separated on January 7, 2015. They have one child, Nikki Forozandeh, born January 21, 2011.

[4] Ms. Salmanmanesh was born in Iran, as was the Respondent, Mr. Forozandeh. Ms. Salmanmanesh’s parents continue to reside in Iran. Ms. Salmanmanesh states that she wishes to take her daughter to Iran to visit her father, who is now 86 years of age. Her father has Parkinson’s and recently had a bad fall. Ms. Salmanmanesh states that she intends to return to Canada after the visit, with the child, and continue her employment in Ottawa. Ms. Salmanmanesh’s evidence is that she needs to travel urgently to Iran as she is fearful that this may be their last visit with her father.

[5] This motion is brought within Ms. Salmanmanesh’s Application, commenced February 18, 2015, seeking various relief arising from the parties’ separation, including sole custody and permission to travel with the child without Mr. Forozandeh’s consent. On May 16, 2018, a final order was issued, on consent, granting Ms. Salmanmanesh sole custody and primary residence of the child. The remaining issues, primarily being Mr. Forozandeh’s access and Ms. Salmanmanesh’s ability to travel with the child without the need for Mr. Forozandeh’s consent, are scheduled for trial on the Ottawa trial list commencing May 13, 2019.

[6] Ms. Salmanmanesh brought a procedural motion on November 15, 2018, seeking an Order permitting this motion to be heard on an urgent basis. This was allowed by Master Fortier, and the motion was scheduled to be heard on November 22, 2018. The motion was then adjourned to November 27, 2018 to allow the Respondent time to file responding material.

[7] Ms. Salmanmanesh has been the primary caregiver for the child since the parties’ separation. There have been concerns about the father’s, Mr. Forozandeh’s ability to parent, including substance abuse and mental health issues. The Children’s Aid Society has been involved in these concerns. Mr. Forozandeh currently has supervised access to the child. Mr. Forozandeh seeks expanded unsupervised access at trial.

[8] The issue of Ms. Salmanmanesh’s travel has been a repeated one in this proceeding. On January 6, 2016, Justice Sheard granted an interim order on consent that provided that Ms. Salmanmanesh was required to obtain Mr. Forozandeh’s consent to any travel with the child outside of Canada, which consent he shall not unreasonably withhold.

[9] On March 15, 2018, Ms. Salmanmanesh brought a motion to obtain an Order seeking to travel with the child to San Jose, California for the Easter weekend. Mr. Forozandeh ultimately consented to this Order and the travel took place.

[10] As part of Ms. Salmanmanesh’s March 15, 2018 motion, she sought permission to obtain a passport and travel internationally with the child without obtaining Mr. Forozandeh’s consent. This was opposed by Mr. Forozandeh. This part of Ms. Salmanmanesh’s motion was adjourned to April 20, 2018.

[11] On April 20, 2018, Mr. Forozandeh expressed similar concerns as he did before me. He was concerned with Ms. Salmanmanesh’s ability to travel with the child to the Middle East, given statements that she had made that she wanted the ability to take the child to Iran to visit her parents. Mr. Forozandeh pointed to the political unrest and potential danger of travelling to that region. Mr. Forozandeh also pointed to Iran not being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, such that he would be without recourse if Ms. Salmanmanesh did not return with the child.

[12] In reasons given on April 24, 2018, Justice Summers dismissed Ms. Salmanmanesh’s motion, stating:

“I find the Respondent father to have unreasonably withheld and/or delayed his consent to travel in the summer of 2017 and March, 2018 as described above. I am not, however, prepared to vary Justice Sheard’s order to grant the Applicant mother open-ended permission to travel with the child on the evidence before me. The relief sought by the mother in this motion is far reaching considering the interests at stake. In my view, it is a matter better dealt with at trial. In that regard, I note the provision of Justice Sheard’s order requiring the parties to submit their completed TSEF [Trial Scheduling Endorsement Form] that would be have allowed the matter to have been placed on the next trial list. That step does not appear to have been taken and must now be done.”

Analysis and Disposition

[13] I find that Ms. Salmanmanesh’s reasons for wanting the child to travel to Iran at this time, prior to trial in May of 2019, are insufficient to displace the concerns raised by Mr. Forozandeh. The only reason advanced for why Ms. Salmanmanesh’s wishes to travel at this time, in advance of trial, aside from her wish to do so during the child’s school vacation period, is her father’s health. The evidence before me does not support that the father’s health raises urgent issues. While he is 86 years old, his increased age is not an urgent development. I do not find, based on the evidence before me, that his diagnosis of Parkinson’s, or his recent fall, raise urgent health issues. Even if it did, these health concerns do not outweigh the significant risks associated with such travel.

[14] There are significant risks associated with the child travelling to Iran. Iran is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The child is an Iranian citizen as well as a Canadian citizen. Ms. Salmanmanesh’s counsel acknowledged that there is a risk that the child’s Canadian citizenship would not be recognized by Iran. Canada does not have an embassy in Iran. There is no Canadian consular support for Canadian citizens in Iran. The consequences if the child is not returned to Canada would be severe, because there would be no effective way to compel her return.

[15] The Canadian government has also issued a travel advisory for Iran directing Canadian citizens to exercise a high degree of caution in Iran due to crime, demonstrations, the regional threat of terrorism, and the risk of arbitrary detention. This advisory is not in itself determinative of this motion but it does add to the risk level. I recognize that Ms. Salmanmanesh made a number of arguments that support provided by her family and friends, as well as places where she and her daughter would visit, provide sufficient safeguards to the risks described in the advisory. Those arguments can be fully canvassed at trial.

[16] I find that Ms. Salmanmanesh’s assurances of safety and her personal undertaking to return the child to Canada, as well as the fact that she has been the child’s primary caregiver since separation, do not outweigh the significant risk that the child would not be returned to Canada to the extent that such travel should be permitted prior to trial.

[17] I find therefore that it is not in the child’s best interests to travel to Iran at this time, prior to the trial in this matter that is scheduled to take place in May of 2019, where the issue of the child’s travel outside of Canada, including to Iran, may be fully canvassed by the court.

Costs

[18] If the parties are unable to agree on costs of this motion, Mr. Forozandeh may file submissions with respect to costs on or before December 14, 2018. Ms. Salmanmanesh may file submissions with respect to costs on or before December 21, 2018.

Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bill of costs, and shall comply with Rule 4 of the Rules of Civil Procedure.

Justice Pam MacEachern Date: December 4, 2018