Tehrani v. Mahtab Pour, 2019 ONSC 6570

COURT FILE NO.: FS-19-13439

DATE: 20191114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NADER SEYED TEHRANI

Applicant

– and –

RAHELEH MAHTAB POUR a.k.a. RAHLA MOHAMMAD MEHTABPOUR a.k.a. RAHELEH SOLMAZ

Respondent

Brian J. Bruke and Courtney Wile, lawyers for the Applicant

Elissa H. Gamus, lawyer for the Respondent

HEARD: November 13, 2019

CASE CONFERENCE ENDORSEMENT

DIAMOND J.:

1On October 29, 2019, I heard the applicant’s ex parte motion seeking, inter alia, an order restraining the respondent from removing the child of the marriage (“the child”) from the city of Toronto pending the applicant’s motion seeking an order mandating the return of the child back to Dubai on the grounds that the respondent allegedly abducted the child to Ontario without the applicant’s consent. On that day, I granted the relief requested by the applicant, albeit with certain revisions thereto at my insistence. I further ordered the motion materials and my order to be served upon the respondent, and that the motion thereafter proceed before me, on notice, on November 5, 2019.

2On November 5, 2019, counsel for both parties attended before me. As the applicant’s motion was in its early stages, a conference call was scheduled to proceed with me on November 7, 2019 to advise the Court of any agreement reached between the parties with respect to interim procedural steps going forward.

3On November 7, 2019, the conference call proceeded and some progress was made with respect to scheduling the applicant’s motion, which is akin to a Hague convention application although the United Arab Emirates is not a signatory to that convention. At the conclusion of that conference call, it was agreed that counsel would forward me a list of all the agreed upon and disputed procedural issues for further discussion at a subsequent conference call to proceed with me on November 13, 2019.

4That second conference call proceeded as scheduled. Counsel for the parties were able to agree upon several interim steps. However, certain matters were still outstanding, and I heard argument on those issues during the balance of the conference call, taking my decision under reserve.

5I shall now address each of the outstanding issues in turn.

Hearing Date and Length

6The applicant has dual Canadian and Iranian citizenship while the respondent is an Iranian citizen with permanent residence status in Canada. The applicant gave evidence that on October 17, 2019, he learned from the Dubai police that on October 11, 2019, the respondent flew with their daughter from Dubai to Toronto on one-way tickets. It is the applicant’s position that this alleged abduction of their daughter was carried out without his knowledge or consent.

7In reading the respondent’s affidavit, there is no dispute that she did fly from Dubai to Toronto on or around October 12, 2019. What remains in dispute is the nature of this trip, and whether it amounts to an unlawful abduction as alleged by the applicant.

8There is no secret that the respondent takes the position in response to the relief sought by the applicant that, pursuant to section 23 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12 due to the applicant’s alleged abusive behaviour there is a risk that the child would suffer serious harm if removed from Ontario and returned to Dubai.

9Counsel for both parties have agreed with my suggestion that this motion proceed by way of “summary trial” so that all witnesses and expert opinions be delivered by way of affidavit with viva voce cross-examination proceeding before me in open court, followed by oral argument. The issue is when that hearing should take place.

10The applicant is requesting that the hearing of his motion be scheduled immediately. He alleges that his child has been wrongfully removed from Dubai and retained in the greater Toronto area for over one month, and he has not seen the child at all during that time.

11The respondent advises that due to Ms. Gamus’ planned vacation, and the fact that Mr. Joseph (who will be the respondent’s trial counsel) is currently scheduled to prepare for and participate in another trial in January 2020, the hearing should not be scheduled until at least February 11, 2020.

12The court must balance the need for a potential prompt, summary return to the originating jurisdiction (if warranted), with the need for a fair hearing based upon natural justice and due process. In support of her position, the respondent argues that she will be relying upon certain witnesses who reside in Iran, and those witnesses require a Visa to come to Canada (which according to the respondent will take two to four months to obtain). As those witnesses are “critically important” (in that they allegedly have first hand information about the applicant’s abusive behaviour), the respondent seeks a hearing sufficiently in the future to ensure that those witnesses be present.

13In my view, the hearing of this motion should proceed as expeditiously as possible. Without commenting or making any finding upon the merits of the allegations advanced by both parties, alleged child abduction is an extremely serious matter. Under Article 1 of the Hague convention, the stated objective is the prompt return of any children wrongfully removed from a contracting state. As held by Justice O’Connell in Children’s Aids Society of Toronto v. P.B. and J.J.W. 2019 ONCJ 683, the purpose of the Hague convention would be defeated if applications for the return of abducted children were not dealt with expeditiously.

14I see no difference in the approach to be employed on the within motion and employ and adopt the same legal principles. As such, the applicant’s motion will proceed before me on January 6, 2020 and last for up to five days. The parties have requested up to seven days, but given the volume of trials currently scheduled to proceed in January 2020, only five days are currently available. This may change if some or of those other trials either settle or collapse. In the event more time is required to complete the hearing, the Court will work with counsel and the parties to try and ensure the hearing is completed is a timely fashion.

Request for Questioning

15The parties disagree as to whether questioning is both necessary and possible given the various interim steps which must take place between now and the hearing, including the retainer of experts and the exchange of expert reports.

16In my view, given the fact that I have already ordered viva voce cross-examination to proceed before me at the hearing, questioning is superfluous. In addition, to order questioning would risk converting this motion into a full-fledged proceeding when the sole issue is whether the child is returned to Dubai or permitted to stay in Ontario. There will be no questioning.

Court-Appointed Expert

17In addition to the experts being retained by the parties, counsel for the parties discussed the possibility of the Court retaining its own expert pursuant to Rule 20.1(3) of the Family Law Rules, and specifically an expert retained for the purpose of providing evidence akin to delivering a “Voice Of The Child” report (ie. an expert with a social work/mental health background for the purpose of meeting with the child and delivering a report resulting from that meeting).

18Unfortunately, the parties could not agree upon the identity of such an expert, nor could they agree on whether they should share the costs of retaining such an expert. In my view, there is insufficient time between now and the hearing date to allow for a formal motion to proceed. If the parties cannot agree upon the identity and (shared) cost of such an expert, notwithstanding that the Court would appreciate receiving such evidence, I am not prepared to hear such a motion.

19What I am prepared to do is allow the parties to jointly engage the services of the Office of the Children’s Lawyer (“OCL”) if they so choose. If the parties agree, they may forward a copy of this Case Conference Endorsement to the OCL, and thereafter advise whether the OCL is currently in a position to use expedited resources for the purpose of meeting with the child and preparing a report in advance of the hearing. If such circumstances, I will sign the necessary consent OCL Order forthwith to be provided by the parties.

Request for Supervised/Unsupervised Access

20There is no motion before me for such relief. Access is not an issue engaged on the applicant’s motion. If the parties cannot agree upon the terms of interim access to the child pending the hearing of the applicant’s motion, they may commence separate proceedings although I note that the applicant has expressed a consistent position that he has no intention of attorning to the jurisdiction of the province of Ontario.

21Order accordingly.

Diamond J.