Overview

[1] The issues in this trial are access and child support.

[2] The parties were married in Iran in 2002 and emigrated to Canada in 2010. They have 2 daughters, Shahzad born March 1, 2004 (age 15) and Arshida born July 26, 2011 (age 8).

[3] They separated on January 11, 2016, when Mr. Nezami was arrested and removed from the home. Ms. Khoshbin alleges that Mr. Nezami assaulted her earlier that morning. He was subsequently convicted of assault. He states that he pled guilty to the offence so that he would not have to spend further time in jail.

[4] The last substantive order made in this proceeding was that of Justice Bennett, made on consent on July 11, 2017. On a final basis, sole custody of Shahzad and Arshida was placed with their mother. That order also provided, I interpret on a final basis, that their father was prohibited from asking Shahzad and Arshida where they live or what school they attend. Also on a final basis, a restraining order was imposed that prohibits Mr. Nezami from communicating directly or indirectly with Ms. Khoshbin except through counsel, or from coming within 500 metres of her except to exercise access and in other defined circumstances.

[5] Ms. Khoshbin seeks a child support order retroactive to the date of separation in the amount of $537 per month based on an imputed income of $37,252 per year. This was the amount that Mr. Nezami acknowledged that he was earning when he agreed to a temporary support order on July 11, 2017. She also seeks an order that there be no access permitted between Mr. Nezami and the children, in accordance with the recommendation made by the clinical investigator appointed by the Office of the Children’s Lawyer, Janet Flint.

[6] Additional orders are sought by Ms. Khoshbin that would permit her to obtain and renew passports for the children and travel outside of Canada without Mr. Nezami’s consent. She also seeks a divorce.

[7] Mr. Nezami seeks regular weekly access with his daughters. He submits that he should not have to pay retroactive support because he has spent several periods in jail in 2016 and 2017, accompanied by periods of unemployment and lack of housing. He asks that no support order be made, based on his current income, which he submits is below the threshold that would trigger an order under the Federal Child Support Guidelines.

[8] Mr. Nezami has attempted to raise property issues in this proceeding even though no claims were made in his Answer. On March 1, 2019 Justice Vallee made an order permitting each party to amend their pleading within 30 days. Mr. Nezami did not do so. Mr. Nezami was represented by a lawyer until he served a notice of Change in Representation on June 28, 2019, indicating that he would act in person.

[9] At the trial scheduling conference on June 17, 2019, Mr. Nezami indicated his wish to include issues of equalization of property located in Iran, an Iranian divorce and the enforcement in Iran of a Mehr. Justice Bennett endorsed that an Ontario court has no jurisdiction to proceed with these issues and confirmed that the trial would be proceeding on the issues of custody (an inadvertent error, in my view, as there is already a final custody order), access and child support only. Mr. Nezami’s lawyer indicated that he agreed that the court had no jurisdiction to deal with the additional issues raised by Mr. Nezami.

[10] I also note that at the trial management conference the parties through their counsel agreed that the trial could occur at a location other than Newmarket. This is important to mention because several times during the trial Mr. Nezami referred to the fact that he did not ask some witnesses to attend due to the change in place of trial. Because he had agreed to the change in venue well in advance, I find that there has been no procedural unfairness brought about by the change in trial location.

Credibility

[11] This was a four-witness trial. Both parties testified. On the last day of giving evidence, Mr. Nezami contacted his friend Shahryar Nariman that morning, who was able to travel to provide some evidence. Mr. Nariman was also a former surety and employer. Janet Flint testified as a witness for the court.

[12] When two parties provide different versions of events that have happened, the court must decide who has a more accurate recollection of those events, and who is providing the court with the most reliable version of those events. Everyone experiences and remembers things differently. Sometimes the differences are about minor matters, so they do not matter as much. But where witnesses have very different versions of important facts, the court must decide which witness has provided the court with more credible, truthful and reliable testimony about things that have happened.

[13] I do not fully believe everything that Ms. Khoshbin has said about the parties’ relationship before separation. This is not because I believe that she is lying, but rather because I believe that her memories of the past have been negatively affected, overall, by what I accept was an awful marriage. In particular, I believe that Mr. Nezami may have spent slightly more time with the children, and been slightly more involved with them, than she has portrayed. However, this finding is not particularly relevant to the issue of access because I find that it is other things that have occurred leading up to the parties’ separation, and since, that are most relevant to the order that must be made now. Otherwise, I believe that Ms. Khoshbin is an accurate historian. I also accept that, despite the difficulties that her husband has put her through, for a long period after the separation she attempted to support and facilitate his relationship with his daughters.

[14] I believe much less about what Mr. Nezami has told me. That is not to say that I disbelieve all his evidence, but on many key points I find that he has not been truthful or accurate. I do believe that there are two sides to Mr. Nezami. The first side is the one that he inflicted on his family during the marriage, and that he has continued to inflict on them since. The other side is one who truly wishes that he had behaved differently, but who is without insight into how his own behavior has affected his relationship with his daughters.

[15] I will refer to some of the problems in his testimony:

(a) He denied any history of involvement with drugs. At the time of his arrest in January, 2016 he was also charged with four counts of unlawful possession of a substance contrary to the Controlled Drugs and Substance Act (CDSA), and possession for the purpose of trafficking. Those substances were heroin and cannabis. Mr. Nezami claims to have no knowledge about where those drugs were found. Ms. Khoshbin gave detailed and convincing descriptions of Mr. Nezami’s ongoing abuse of drugs during the entire period of their marriage, which I accept as true;

(b) He testified that he only pled guilty to assault and two counts of failing to comply with his recognizance because he was aware that he would otherwise have to spend more time in jail before his trial. What he failed to say was that in exchange for a guilty plea, many charges were withdrawn. The evidence shows that on December 20, 2016 the Crown agreed to withdraw three other counts of failing to comply with his recognizance, and a charge of uttering a threat in relation to Ms. Khoshbin, along with all drug charges. He was represented by a lawyer when he gave his plea. Had he been convicted of the drug charges, he would have faced a significant prison sentence. He was no doubt informed of this by his lawyer. As it was, he received a suspended sentence and probation of two years. He failed to mention that these facts would have played into his decision to plead guilty;

(c) Mr. Nezami denied assaulting his wife despite his guilty plea. Dr. Maryam Mohammady has been Ms. Khoshbin’s family doctor since 2010. There are three letters from Dr. Mohammady in evidence. The first is dated January 22, 2016. Among other things, it states “I saw her on January 12, 2016 after she was severely abused by her husband. She was in great emotional state with anxiety and posttraumatic stress disorder and had bruises on her face and her whole body. She stated that she has been abused by her husband continuously over years”. Another letter, which Mr. Nezami put in evidence, is dated November 7, 2016 and addressed to whom it may concern. In it Dr. Mohammady states that her earlier letter was based on Ms. Khoshbin’s statement.

Mr. Nezami’s evidence is the Dr. Mohammady admitted to him that she made a mistake and apologized for the contents of her first letter, which also stated “I strongly believe that she and her children are in a dangerous situation and need to be replaced in safe housing as soon as possible. She is in urgent need for housing to protect herself and her children”.

The final letter from Dr. Mohammady dated November 25, 2019 puts the lie to Mr. Nezami’s evidence. The doctor wrote about Ms. Khoshbin “I examined her personally on January 12, 2016 after she was verbally and physically abused by her husband. Her face and neck had several bruises and she had severe ear pain that I had to treat her (sic). I will attach my note to this letter and am ready to confirm all my words and documents.” The doctor’s note dated January 12, 2016 reads “victim of husband abuse- physical and verbal abuse – severe physical attacks” and “ under severe anxiety and stress-cry and scared” and “bruise on face and both earlobes- all after physical abuse” and “husband addict - now in jail”. Mr. Nezami testified that he did not read the doctor’s last letter and denied that she could be “changing her statement” after three years;

(d) Mr. Nezami first testified that during this altercation he went into the bedroom where his wife pushed him in the chest at least twice. On cross-examination he changed his testimony to say that he never entered the house, but only went back to the house to get the car, and that his evidence about the pushing was in relation to another timeframe;

(e) Mr. Nezami repeatedly blamed his wife or her lawyer for the times that he has been incarcerated. The recognizance entered into by Mr. Nezami after his arrest in January 2016 likewise prohibited any contact, directly or indirectly, with Ms. Khoshbin. The objective evidence shows that he was charged with failing to comply with his recognizance on at least five occasions. He was charged on or about July 15, 2016 with failing to comply with his recognizance on four occasions - February 8, 10 and 12, 2016 and May 11, 2016. In February he sent Ms. Khoshbin a letter, text messages, and appeared outside of her parking garage. In May he contacted her through a third party. He was released again on terms. He continued to breach his recognizance. In September 2016 he gave Ms. Khoshbin another letter. He said that the letter was accidentally included with some other papers and was not supposed to be there; the letter was written in Farsi and was contained within a stack of bills that he passed to her lawyer during a family court appearance. I do not accept Mr. Nezami’s evidence that this was accidental; it is not believable especially since the content of the letter requests Ms. Khoshbin’s forgiveness and expresses his regrets;

(f) After his conviction December 2016, he was charged with breach of his probation order. One of the terms of his probation was that he was not to have contact or communication with Ms. Khoshbin except in the presence of or through legal counsel for the purpose of arranging access. Mr. Nezami’s witness, Shahryar Nariman, described how he was Mr. Nezami’s surety at this time. There must have been other outstanding charges. Despite bail posted in the amount of $10,000, Mr. Nariman testified that a video camera captured Mr. Nezami going out the back door of the restaurant owned by Mr. Nariman and using a public phone to contact his wife. Mr. Nariman agreed to continue to be Mr. Nezami’s surety, but he believes that the bail was increased to $20,000;

(g) After his initial arrest, his first surety was Javad Yassavoli-Sani. He was to reside with his surety. By his own evidence, Mr. Nezami did not do so, as this individual told him after court that he had no place for him to live. I must conclude that Mr. Nezami knew that he was not complying with the court’s terms of his release but did not inform the police, demonstrating another example of his disregard for orders of the court;

(h) Mr. Nezami has also been charged with criminal harassment. This charge was also withdrawn. Mr. Nezami said that his wife had him charged with this offence simply because he called her sister in Iran. He made it sound like an innocent, social call. He also said that the police received a letter from Ms. Khoshbin’s sister, alleging that she had been threatened. Ms. Khoshbin’s version of events is that in 2017 Mr. Nezami threatened to kill her and the children, and then to return to Iran to kill her sister and mother and thereafter kill himself. The police only lay a charge where there are reasonable grounds to believe that an offence has been committed. Ms. Khoshbin’s version of events is far more likely, especially given the proof of the earlier breaches;

(i) From October 2016 to May 2017, Mr. Nezami was exercising supervised access with his daughters at an access centre. His evidence was that he made the decision to stop going to that facility because it was dirty, cramped and expensive. He refused to concede to the objective evidence, which shows that his ability to use the centre was suspended and ultimately terminated because of his failure to follow the policies that were in place to ensure that the children experienced a calm and enjoyable visit;

(j) On October 15, 2017, Mr. Nezami brought Shahzad, who was then 13 years old, to the police station to facilitate the return of Shahzad to her mother’s care. He said that he told the police that he must reside with his surety, and so was incapable of caring for Shazhad. Shahzad’s version was that her father told the police that he no longer wanted to look after her. When asked why he brought Shahzad to the police station, he explained that it was because he was not allowed to contact his wife. Mr. Nariman’s evidence exposes the lie. Mr. Nariman told the court that he was continually urging Mr. Nariman to return Shahzad to her mother. He stated that he offered to call Ms. Khoshbin to come to get her daughter, and urged Mr. Nezami not to take her to the police station, but Mr. Nezami did so anyway;

(k) According to Ms. Flint’s information from the police, Mr. Nezami told the police that Ms. Khoshbin refused to take her daughter back since she had “picked her father over her”. The very next day, Ms. Khoshbin was responsible for the police being dispatched to Shahzad’s school. Ms. Khoshbin had called the police in a frantic state because of receiving the message the previous night that Shahzad was at the police station, and then Shahzad had not gone to school the next day. Furthermore, on October 29, 2017, Shazhad contacted the police. She stated that she was afraid to go home as her father said that he was kicking her out. She told the officer that her father had convinced her to live with him, she no longer wanted to live with him, and she accepted a police escort to obtain her belongings from her father’s home and be driven to her mother’s;

(l) Mr. Nezami continues to hold the view that Shahzad would have preferred to stay with him in the summer of 2017. He maintains that position despite Shahzad having told Ms. Flint that she regretted her decision to live with her father for a while that summer, and he overlooks Shahzad’s own actions of contacting the police for help;

(m) Mr. Nezami testified that the clinical investigator, Ms. Flint, only spent ten minutes talking to him on one occasion, in a restaurant. Ms. Flint testified that she met with Mr. Nezami at a restaurant on two occasions, both times for well over an hour. On the first occasion he had an individual with him, Ali Boriri, who he introduced as his interpreter. On the second occasion he said that an interpreter was unnecessary. I reject Mr. Nezami’s exaggerated version of his limited contact with the clinical investigator. Ms. Flint testified in a professional manner. Her report is careful and thorough. She obtained from Mr. Nezami a family history, a history of his education and employment, and discussed with him the topics of substance abuse, police involvement, Children’s Aid Society involvement, physical and mental health, relationship history both pre-and post-separation, his description of the children and his proposed parenting plan. All of this would have taken much longer than ten minutes;

(n) When he met with Ms. Flint he told her that his family doctor referred him to a psychologist in 2016 and that he was deemed “mentally healthy”. He told her that he was physically healthy, with no issues. At trial he repeatedly told the court that he takes six medications a day for his health issues and that he is very unwell. He also filed a letter from Dr. Cardan, a psychiatrist, who provided a letter dated October 29, 2019 stating that Mr. Nezami is currently visiting his clinic to address long-standing depression. A letter from his family physician, Dr. Kyan-zadeh, dated September 9, 2019 indicates that he is taking prescription medication for depression and anxiety, which is controlled by the mediation; and

(o) Mr. Nezami did not comply with an order for financial disclosure, and there are inconsistencies and contradictions in his financial information.

Because of these and other problems with Mr. Nezami’s evidence, which is so frequently contradicted by the more objective evidence, where there is a conflict in the evidence between that of Mr. Nezami and another witness, I reject his version of events and prefer that of the other witness.

The Law

[16] The court must have regard to s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 when considering whether an access order would be in the best interests of Shahzad and Arshida, and if so, on what terms. That provision sets out the factors that a court must take into account when considering that question. Section 24(4) requires the court to consider whether Mr. Nezami has at any time committed violence or abuse against Ms. Khoshbin or the children when assessing his ability to act as a parent. The sections that follow examine the factors set out in the legislation.

The History of the Parties

[17] The marriage of Mr. Nezami and Ms. Khoshbin was a traditional one arranged by their families. They did not know one another before the marriage.

[18] Ms. Khoshbin described a very unhappy marriage from the start, where her husband was never at home. She described how the first time that she questioned him after returning home in the middle of the night, he sat on her chest, punched her in the face, and locked her out of the house the next morning, taking her key. He was also controlling, demanding that she limit her social circle to her immediate family, and insisting that she curtail her interaction with others, particularly men. There were fights and arguments whenever she spoke to a man. He refused to provide her with the telephone numbers of his family. He monitored her whereabouts. He told her that she was a simple person and that others would try to take advantage of her if she befriended them.

[19] Ms. Khoshbin was a teacher, employed by the Ministry of Education. She taught science and english to children, and she also taught adult classes in a private institution. Mr. Nezami was jealous and suspicious of her contact with male students. His habit of staying out late at night and sleeping during the day continued. She described that when he returned home he would often demand that they have sexual relations even though she had to get up early in the morning to teach, so that she did not sleep properly for years.

[20] She described that when their eldest daughter Shahzad was born, Mr. Nezami was never available for help and frequently would not answer his phone. All childcare activities fell to her. Ms. Khoshbin relied on her mother as her back-up for childcare in those years.

[21] Ms. Khosbin told the court that Mr. Nezami also lied to her about his employment. During the first year he was unemployed, so that she was the sole supporter of the household. Later he told her that he worked in some capacity where he was in contact with incarcerated people, but she never observed him at work.

[22] Ms. Khosbin also described drug use by Mr. Nezami, which she personally observed. From her testimony I infer that she had no familiarity with drugs before marrying Mr. Nezami, so that she could only describe what she saw. She saw that he crushed a substance, put it on a “spit” and heated it up with gas, and then snorted it from an empty pen casing. She thought that it was opium. She described that he would share in this activity with his two brothers at parties and gatherings, and that they would drink alcohol afterward and were “reckless”. At the beginning of their marriage he would use drugs in the basement of his mother’s house; later he did it directly in front of her. She also saw him take a lot of codeine pills and other pills that she believed were sleeping pills. His focus was drug use above all else. After Shahzad was born, he would use drugs in front of the child unless Ms. Khosbin removed her from the house or put her to bed.

[23] Ms. Khosbin stated that her upbringing taught her to remain married, and that she would not have tried to obtain a divorce because her husband’s family would have taken Shahzad and not cared for her properly.

[24] The decision to move to Canada was solely Mr. Nezami’s. Ms. Khoshbin never received an explanation for why they were moving other than Mr. Nezami saying that he wanted to claim refugee status.

[25] Once in Canada the same pattern continued. Mr. Nezami got a job, but his drug use continued. He stayed home to get high and would tell his employer that he could not be at work because his wife required him to do errands, which was untrue. Ms. Khosbin knows this because the employer called her to ask why she was not allowing her husband to come to work. She would take the children out to the park or the mall for hours because she did not want them to be exposed. She would go for months at a time without having so much as a couple of dollars in her pocket.

[26] She thought that he was continuing to use opium. She described in detail that he brought home a black substance and boiled it for a long time, and that it had a bad odour. When it dried he would shave off pieces and keep them in a tin. He would put those shavings on a metal device, put it over a gas burner and use an empty pen casing to inhale or ingest it. She also said that he brought a drug into the home that looked like dried vegetables. She finally got him to go into the bathroom when he was using, where he would remain even if other family members required its use. Ms. Khoshbin described him as jittery and irritable until he used these substances.

[27] All responsibilities for the children remained with her. She described that she pleaded with her husband to take Shazhad to the movies just once, but he did not. She eventually got a job teaching at a school just across the street from their home on Saturdays. Ms. Khoshbin would take the children with her. He took no interest in their schooling. Of greatest concern to her was his drug use in front of the children.

[28] Mr. Nezami accused Ms. Khoshbin of testifying that he never took the children to a doctor’s or dentist’s appointment. She did not say that; she testified that she was responsible for making the appointments and monitoring their health needs and was otherwise responsible for their care. Nonetheless, Mr. Nezami insisted that that was her testimony, and produced two letters from health care providers. One is from Dr. Kyan-zadeh, Mr. Nezami’s physician. Ms. Khoshbin’s testimony is that he is not the children’s doctor, which is confirmed in the report from the Office of the Children’s Lawyer. Dr. Kyan-zadeh’s correspondence states that Mr. Nezami brought his daughters to the clinic for checkup on two occasions in 2011. Shahzad would have been seven years old, and Arshida a newborn. Ms. Khoshbin testified that she had no knowledge of these appointments at the time. The other letter is from a dentist, Dr. Eshghi, which states that Mr. Nezami brought Arshida for a checkup on October 8, 2015 and brought along a gift to make her happy and comfortable with the dental treatment. This evidence accords with my finding that there were likely more times than have been acknowledged by Ms. Khoshbin when Mr. Nezami cared for the children. In the context of the more recent evidence, however, this historic evidence is not particularly relevant.

[29] Just as he had in Iran, Mr. Nezami warned Ms. Khoshbin about associating with others. She eventually joined a class to upgrade her English skills. She tried to encourage Mr. Nezami to come to the course also, but he would not participate, preferring to stay home to use drugs. Mr. Nezami looked in the windows of the classroom and accused her of talking to men. He became more controlling; in the last few days they lived together he insisted that she call him every ten minutes.

[30] This led into events that ultimately caused the separation. These events also provide insight into Mr. Nezami’s temperament and conduct generally. It is a story that reveals his lack of control, his poor judgment and irrationality. Mr. Nezami decided in his own mind that Ms. Khoshbin was having an affair with a man in her class. From what she was able to put together in hindsight, he contacted this man, made his accusations, and demanded a meeting with this man. The man did not appear at the appointed place. Mr. Nezami then called his wife and accused her of interfering with his plan to meet this man. During the phone call he was using profanity and told her that he would kill her because this man did not come to the meeting.

[31] Mr. Nezami, whose evidence I reject, attempts to portray that he was protecting his wife from this man. He claims to have discovered that the man in question was not a doctor in Iran, which is what he told his classmates. Mr. Nezami accused this man of operating a fraudulent foreign money exchange. His contact with the man was to attempt to confront him about these lies. Additionally, he was annoyed that his wife was receiving text messages from this classmate. He claimed that the man was sending his wife inappropriate pictures. Ms. Khosbin explained that the man sent jokes and cartoons to all of his classmates, all of whom were respectable and professional people. She was mortified by her husband’s actions. Whatever Mr. Nezami may have convinced himself that his motives were, I find as a fact that he was enraged and jealous, and that he sought to control and assert ownership over his wife.

[32] Significantly, Mr. Nariman also inadvertently testified about this aspect of Mr. Nezami’s character. He described that while he was Mr. Nezami’s surety, he first attempted to mediate between the two parties to achieve peace. After one court appearance Ms. Khoshbin called Mr. Nariman to discuss something about the attendance. When Mr. Nezami found out about the call, Mr. Nariman described how the interaction upset Mr. Nezami, who wanted to know why he was speaking with his wife. Mr. Nariman said that he thought Mr. Nezami appeared to be jealous that he was speaking with Ms. Khoshbin.

[33] Back to the events of the separation. Mr. Nezami came home the evening of January 10, 2016. He accused Ms. Khoshbin of wanting a divorce. He decided to quiz Shahzad about this. He took Shahzad into a room and asked her about whether her mother was attempting to separate from him. Shahzad was yelling and screaming because he was pulling on her ear. Ms. Khoshbin managed to open the door to get to her daughter, in the course of which she explains that she was bruised by the door or the wall, or perhaps on furniture. It stands to reason that she cannot remember these details, as her focus was on getting inside to help Shahzad.

[34] I infer from the evidence that Mr. Nezami left the home after that. Mr. Nezami said that he slept at his restaurant and Ms. Khoshbin stated that she locked the door after he left. Mr. Nezami spent some time talking about videos that would show that he slept at the store. I accept that he may have done so, but that does not change my assessment of his actions on January 10 and 11 toward Ms. Khosbin.

[35] I find that he returned in the morning and wanted to resume the argument. He told the court that he just wanted to come to get the car. He said that Ms. Khosbin pushed him in the chest. For all of the reasons that I have already stated, I do not believe that that is true. While Ms. Khoshbin was attempting to get the children ready for school, he approached her and pulled her ear and arm and told her that she was to surrender her car keys, cover her hair when she went out in public, and report her whereabouts every ten minutes. He threatened to “smash up her face beyond recognition” if she disobeyed. The altercation became more serious, with him continuing to pull on her ears and arms. He told her that he would be taking the children to school, which he had never done before, and that she was not allowed to leave. In the meantime Ms. Khoshbin was trying to calm the children. She testified that she then “took a beating”.

[36] Whether Mr. Nezami left after that or calmed down is unknown, but Ms. Khoshbin managed to take the children to school, and then go to her own class. Her classmates, noticing that she was shaky and her face was red, called the police.

[37] As a result of the evidence provided by Ms. Khoshbin and backed up by the objective observations of Dr. Mohammady, I accept that she was assaulted as she describes on January 11, 2016. In finding her version credible, I also note that she attributed the bruises on her body to hitting the door or wall the night before when she was attempting to get at Shahzad. If she was trying to bolster her story, she could have attributed that bruising to Mr. Nezami, especially since it had been objectively noted by the doctor. I also find as a fact, on the totality of the evidence presented including that contained in Janet Flint’s report about the children’s comments, that her description of Mr. Nezami’s treatment of her during the marriage is truthful, as is her description of his drug use. This incident was one of many that Ms. Khosbin was subjected to during the marriage, and I also find as a fact that she would not have called the police on that occasion. Her classmates did so.

[38] Significantly, I also find that the children witnessed the events of January 10 and 11, 2016, and have seen and been subjected to other incidents of domestic violence inflicted by their father.

[39] Mr. Nezami was arrested on January 11, 2016. The parties have lived separate and apart without reconciliation since that date.

Criminal History

[40] Mr. Nezami’s recognizance of bail following his arrest is in evidence. He was charged with two counts of assault and uttering a threat to cause bodily harm. As previously indicated, he was also charged with four counts of unlawful possession of a substance contrary to the CDSA, and possession for the purpose of trafficking, involving heroin and cannabis. Although Ms. Settanni’s closing submissions also referenced opium and amphetamines being found, the court was not provided with evidence that those substances were also found.

[41] The terms of his bail were that he was to reside with a surety, Javad Yassavoli-Sani, not communicate directly or indirectly with his wife, other than through a third party to arrange access to the children, and to stay at least 100 metres from her place of residence, employment or place of education.

[42] The collateral information collected by the clinical investigator engaged by the Office of the Children’s Lawyer from the York Regional Police Service provides further information. Mr. Nezami failed to comply with his recognizance on four occasions between February 8 and May 11, 2016 and was charged with those offences on or about July 15, 2016. Despite those outstanding charges, he continued to breach. In September 2016 he gave Ms. Khoshbin the letter in court. He was once again charged with failing to comply with his recognizance. The criminal harassment charge was also laid at some point.

[43] Mr. Nezami’s charges were dealt with on December 20, 2016. As earlier stated, he was convicted of assault and of two counts of failing to comply with his recognizance. The three other counts were withdrawn, as was the uttering threat, and all of the drug charges.

[44] I note that although he denies that the breaches were his fault, during the trial he also described how he pleaded with Ms. Khosbin to forgive him so that he would not have to go to jail, and that he “talked to her for 20 seconds” and then went to jail for weeks. Countless times Mr. Nezami blamed his incarcerations on his wife, and blamed her for ruining his life. Mr. Nezami said that his wife contacted him by telephone at the restaurant, and that her actions caused him to be arrested. He tried to have Mr. Nariman confirm that fact. Mr. Nariman could not confirm it. He recalled that Ms. Khoshbin had called the restaurant one time but he could not recall whether she called his own cell phone or the landline. He could not recall the specifics of these events, but only remembered that the police came to his restaurant two or three times to arrest Mr. Nezami. From Mr. Nariman’s evidence overall, I infer that if she called the restaurant, she called to speak with Mr. Nariman and not her husband.

[45] As part of his sentence, a probation order was imposed for a period of two years. One of the terms was that he was not to have contact or communication with Ms. Khoshbin except in the presence of her through legal counsel. Again, he was not to be within 200 m of any place where he knew or her to live, work, go to school, or frequent. He breached the probation order in 2017.The evidence about the breach is contradictory. The information provided by the York Regional Police indicates that he spoke to Ms. Khoshbin over the phone on October 1, 2017 when their daughter Shahzad was with him. Another source, the York Regional Children’s Aid Society, informed the clinical investigator that on that same date, Mr. Nezami attended Ms. Khoshbin’s home. At the time of his arrest, the police also observed his phone and saw text messages that he had sent to her. I accept that one or both of these events occurred.

[46] I am not satisfied that the court has received the complete history of Mr. Nezami’s charges. The report from the Office of the Children’s Lawyer was authored on August 15, 2018. As of that date Mr. Nezami was still facing four counts of breach of probation and two counts of failing to comply with recognizance. He was required to reside with his surety every night, who at that point was Shahryar Nariman. It is not clear what charges he was facing at the time that would give rise to the breach of recognizance.

[47] The recognizance taken before the justice on July 15, 2016 also indicates that further CDSA charges were laid for offences committed on January 21, 2016. There is no information about the resolution of those charges.

[48] Ms. Khoshbin has moved to three new residences within the past two years because of Mr. Nezami’s continued attempts to have contact. The children have had to move schools on each occasion.

[49] When testifying about his criminal record Mr. Nezami stated that he was not guilty of any of the offences. He explained that he pled guilty because the judge told him that he would have to stay in jail for another four months if he did not. There is no possibility that a judge would have made such statement.

[50] For all the reasons previously stated, the objective evidence is preferred. I find as a fact that Mr. Nezami did threaten bodily harm on January 11, 2016 by saying that he would smash her face beyond recognition. I further find as a fact that he has threatened, through her sister, to do harm to her and her family. I find that her calls to the police to report breaches were not done out of spite, but on the instructions of the police to call them if he tried to make contact. I find as a fact that he did commit the breaches that have been the subject of his convictions, and find it more probable than not that he carried out the conduct that gave rise to the other charges of breach of recognizance.

[51] Mr. Nezami described Ms. Khoshbin as honest and hardworking, even while accusing her of accessing his credit cards, selling a car without his permission, lying about his alcohol and drug use, placing comments about him on his employer’s Facebook page, untruthfully telling the police that he had contacted her, and parental alienation. Later in his testimony she was described as turning vindictive, argumentative and unforgiving, whereas before she had been “pious”.

[52] I find that Mr. Nezami has an unchecked temper and completely misplaced hostility when it comes to Ms. Khoshbin, despite his access to community supports and medication. It was apparent in his testimony and his demeanor throughout the trial. During the four days in the courtroom his statements were repeatedly punctuated by jabbing his finger and arm in the air toward Ms. Khosbin and her lawyer. There is a need for a permanent restraining order.

History of Access

[53] The first court ordered access was through the temporary order of Justice Bennett, made on consent on September 15, 2016. Mr. Nezami was to have supervised access for one hour every two weeks at Social Enterprise Canada, operated by the York Region Supervised Access Program. The girls and their father exercised nine supervised access visits between October 2, 2016 and May 14, 2017.

[54] Mr. Nezami’s participation was suspended by that agency on March 30, 2017 because of his conduct. In the letter that informed him of the suspension, the program coordinator noted that his failure to follow program policy and direction of the staff had been a repetitive problem. Services were terminated on May 19, 2017 for the same reason.

[55] The summary from the final supervised access visit is contained in the OCL’s report and reproduced below. It is a repetition of the earlier visits. It illustrates Mr. Nezami’s attitude throughout.

At this visit a Farsi interpreter was also present. Mr. Mohammad Nezami brought homemade food for the children to take home. He gave Arshida a doll and Shahzad a phone. He said that Ms. Khoshbin was aware of the phone and had approved Shahzad having the phone. He showed Arshida a bag full of chocolate and candy and gave Shahzad a discount card for a bookstore.

Mr. Mohammad Nezami told the children that next month they would visit the restaurant and go to the park. The Access Facilitator asked Mr. Mohammad to focus on the present and not the future. He asked the children what they wanted him to bring the next time. Mr. Mohammad Nezami told the children that he would be getting a new lawyer and when the Access Facilitator asked him to change the subject, in a mocking tone he started to talk about the weather.

Mr. Mohammad Nezami told Shahzad that he bought a bike for her. He asked Shahzad about the soccer fields that she plays at. Shahzad asked about a computer and Mr. Mohammad Nezami stated that he has nothing, that when he went back people had taken everything. He asked Shahzad about a passport and Shahzad said that “she forgot”. Arshida sat eating the candy that he had brought.

Mr. Mohammad Nezami told Shahzad that she could work at the restaurant and gave her his business card. He spoke about opening a bank account for Shahzad and that in order to do this he needed her to be present and to bring identification such as her Permanent Residency card. He gave Shahzad $100. He spoke to Shahzad about giving the cell phone to the lawyer to give to her. He talked to Shahzad about a friend that had invited he and the girls to a wedding in Holland.

Mr. Mohammad Nezami spoke to Shahzad about feeling frustrated that he has to pay $300 to come and see them but he does it so he can see them. The access facilitator asked Mr. Mohammad Nezami to stop talking about money. He asked the children what they wanted him to bring the following week and then said he would give them money. He gave each child a hug and a kiss and said “goodbye”.

Staff told Mr. Mohammad Nezami not to talk about the future, making promises, court or money; he responded that he “will say whatever he wants to the children”.

Ms. Khoshbin asked that the money he gave Shahzad be given back to him; $30 was given back.

[56] Mr. Nezami denies that he was suspended for the reasons set out in the letter provided by the access centre. He maintains that it was his decision to end his participation because the site was dirty, it was in a basement and had no ventilation, and he had to pay $130 for these inadequate facilities.

[57] Ms. Khoshbin testified that she did not pre-approve the provision of the cell phone to Shahzad. This makes sense, given that she would have reported any contact to the police just as she was required to do on other occasions. Mr. Nezami later took the phone back from Shahzad. Ms. Khoshbin felt compelled to replace the phone for her daughter even though she “is not in a good financial position”.

[58] Ms. Khoshbin has expressed that following these access visits the children struggled. They were confused by what their father was telling them and would come back from access crying and fighting. The visits were very stressful for them.

[59] Nonetheless, Ms. Khoshbin remained willing to facilitate a relationship between the children and their father. Another access order was made on consent by Justice Bennett on July 11, 2017. Mr. Nezami’s access with the children was to occur for seven hours every Sunday. Shahzad’s attendance at access was to be dictated by her own decision. Access exchanges were to occur at a public library.

[60] That arrangement did not work out well because the library was closed on Sundays. Ms. Khoshbin explained that she was uncomfortable with the library because no one was in the vicinity. Through counsel it was agreed that the access exchanges would instead occur at a McDonald’s restaurant. Ms. Khoshbin took one or both girls for the visits on eight or nine occasions, but Mr. Nezami stopped coming after the fourth or fifth time. Ms. Khoshbin believes that he discovered that she worked on Sundays and out of vindictiveness refused to pick up the girls as a means of interfering with her work schedule. On the advice of her lawyer, she stopped driving the girls for access because it was a stressful and disappointing situation for them when their father did not appear.

[61] Mr. Nezami denied that he stopped coming. Again, I reject his evidence. Ms. Khoshbin’s evidence reveals that she had a motive to want to bring the children, which was so that she could earn income, and that she remained willing to see that the visits occurred. I am satisfied that if Mr. Nezami had appeared at the appointed time, he would have received his access.

[62] Mr. Nezami produced two pamphlets from the York Regional Police referencing incident numbers and dated November 12 and 19, 2017. He says that these relate to times that he went to the McDonald’s and the girls were not brought there. I find as a fact that these attempts to exercise access probably took place, but occurred later in the year, after significant events involving Shahzad described below. By this time, he had already missed several visits earlier in the summer, and Ms. Khosbin had received advice from her counsel to stop the visits.

[63] Mr. Nezami took the girls overnight to Niagara Falls during the summer of 2017. Ms. Khoshbin stated that she agreed to this because she wanted them to have the opportunity, and that Mr. Nezami had held out this promise to them. The promise was relayed to the girls during one of the supervised access visits and is contained in the supervisor’s notes. Mr. Nezami was going with another man, who was also taking his daughter; Ms. Khoshbin knew that Shahzad and his daughter were friends, and Shahzad told her that the man was dependable. Shahzad provided the man’s phone number to her mother. Ms. Khoshbin got in touch with him and was reassured by this individual, who told her that he would keep an eye on the children. He provided her with his work number and sent her a copy of his business card.

[64] Mr. Nariman confirmed that Mr. Nezami brought his daughters to the restaurant where he worked a few times. I find this must have taken place during the four or five times that he went to the McDonald’s after the July 11, 2017 order. Mr. Nariman’s evidence was that the girls did not seem to be unhappy when they were with their father. He also testified that he never spoke directly with Shahzad about the situation with her parents. I have no evidence about how much time Mr. Nariman spent in the company of the girls and their father, or his opportunity to make any observations about their interactions, but note that he described the restaurant as being a “busy situation”. I infer from this testimony that he had things to do other than watch Mr. Nezami and his daughters throughout these occasions. Mr. Nariman did confirm that he trusted his own daughters with Mr. Nezami, and that they are approximately the same age as Arshida and Shahzad.

[65] In September/October, 2017 Shahzad went to live with her father. She was 13 years old at the time. Ms. Khoshbin’s evidence was that Mr. Nezami had manipulated her, telling her that he was going to buy a house with a pool and making other promises. Earlier that year he gave her an iPhone and asked whether she wanted a computer. His promises of lavish gifts and money are well-documented in the notes made by the supervised access centre earlier that year. As stated, Shahzad asked for police assistance to be returned to her mother’s care by the end of October 2017.

[66] Shahzad has told her mother about the time that she spent away from home. Ms. Khoshbin learned that for most of the time that she was away, Shahzad spent her time with a family friend. Her father had no idea what she was up to, where she was or where she slept; he was unaware of these things and did not look after her. This evidence is partially substantiated by the evidence of Mr. Nariman. He testified that he told Mr. Nezami that a teenager needed to be controlled and so he recommended that she stay with her mother. Mr. Nezami was living with Mr. Nariman but working long hours at the restaurant. He confirmed that Shahzad would bring her friends to the restaurant. Mr. Nariman told him that because the restaurant was a commercial place, he should rent a room or a basement apartment for his daughter so that he could see her at night. He testified that Mr. Nezami sometimes slept at the restaurant. It was busy at the restaurant, so he suggested that Shahzad go back to live with her mother. I find that Mr. Nezami’s situation was not conducive to close monitoring of a teenager, and that he did not properly supervise her.

[67] While she was in her father’s care, she was involved in some trouble at a store. Ms. Khoshbin testified that she looked into the matter and learned that Shahzad was with a girlfriend who stole an object and placed the item in Shahzad’s purse. Store security was involved, but no charges were laid. Ms. Khoshbin had previously warned her daughter not to associate with this girl.

[68] Mr. Nezami went into some detail about having to take Shahzad to a place to speak with a woman and sign papers, and that Shahzad had to perform what sounded like community service hours. It may be that there is more to this incident than Ms. Khoshbin is actually aware of, but given the difficulties with Mr. Nezami’s credibility it is hard to sort out the truth.

[69] Mr. Nezami blames this entire incident for his estrangement from Shahzad. He insists that Shahzad committed shoplifting. He challenged Ms. Khoshbin about why she did not produce a police incident report; the same can be asked of him. He believes that Shahzad has fooled her mother. In keeping with his theme that Ms. Khoshbin is naïve and can be taken advantage of, he testified that Shahzad is smarter than her mother. He believes that Shahzad is angry with him because her mother learned about this incident even after she begged him to keep it from her.

[70] To the contrary, Ms. Khoshbin testified that one of the main reasons that Shahzad does not want to see her father is because he maintains that she committed the theft. Mr. Nezami also accuses Shahzad of taking banking cards from him when she left.

[71] Neither child has exercised access with their father since October 31 2017, which coincides with the date that Shahzad returned to her mother with the help of the police. Ms. Khoshbin testified that they have never expressed to her that they want to see him. They used to have nightmares that he had come to take them away. She believes that if access visits were to be imposed now their lives would be full of stress. She feels that she could not supervise such visits, even if the children wanted to see their father, as she cannot be alone in a room with him. She is fearful of him.

[72] Mr. Nezami has provided documents which he hoped would provide support to facilitate access with his daughters. One is the letter from the psychiatrist, Dr. Cardan. The doctor is candid in his opening line, stating that he is writing to advocate for Mr. Nezami. This letter provides that Mr. Nezami’s “inability to see his children has been weighing on him enormously, preventing from recovering from the trauma of losing his marriage and his largely stable life”. The letter also provides that the doctor has no reason to believe that Mr. Nezami is a threat to himself, his ex-spouse, or his children. Dr. Cardan has obviously been given limited information about Mr. Nezami’s history. The letter makes no reference to his involvement with the criminal justice system. The letter can be given no weight because the doctor is not expressing an impartial position based on all the facts.

[73] He also provided a letter from a case manager at the Toronto North Support Services dated August 21, 2019. It confirms that Mr. Nezami has been a consumer of the Long Term Mental Health Case Management program at Canadian Mental Health Association, and states that he has achieved a great deal of mental health recovery. The letter also advises that he has recently been housed through LOFT Supportive Housing. The letter provides that “it is essential and very effective for Mr. Nezami’s mental health well-being in his recovery journey and for coping with his anxiety symptoms as well as his depressed mood to visit with his children on a regular basis which is highly recommended.” While Mr. Nezami can be commended for improving his mental health and living situation, obviously this letter carries no weight for the court in determining whether access is in the best interests of the children.

[74] Mr. Nezami completed the Partner Assault Response Program (PARS) on May 17, 2017. This was a required component of his probation order, rather than something he voluntarily chose to do. A letter dated August 23, 2018 from Dr. Kyan-zadeh states that he has completed an anger management course. It is unknown whether this is a different program from PARS. The letter goes on to indicate that the physician has not seen Mr. Nezami for the past two years, but that “his behaviour is much better and calmer today than during previous encounters.” Mr. Nariman testified that he had never seen Mr. Nezami get angry or raise his voice. Due to the restraining orders that have been in place since 2016, Mr. Nariman has never seen Mr. Nezami interact with his spouse.

Drug Use

[75] Mr. Nezami has denied drug use in any form. He has provided a letter dated January 26, 2016 from Dr. Pardis, who appears to specialize in addiction. The letter states that a urine sample from Mr. Nezami was collected under camera supervision on that date, and that the sample did not show morphine, cocaine, oxycodone, benzodiazepine or methadone.

[76] Another lab report, requested by Dr. Kyan-zadeh, appears to be from a urine sample tested on July 26, 2016 and is negative for each of those substances. Mr. Nezami testified that he would show these documents to his children at some point in the future.

[77] Following his arrest on January 11, 2016, Mr. Nezami appears to have been incarcerated until his release date of January 18, 2016. He testified that during that time he did not have to receive any medical care in the jail for symptoms of withdrawal. He stated that he was tested for drugs and alcohol while incarcerated at the jail in Lindsay, and never took even a sleeping pill. Given Mr. Nezami’s poor credibility assessment, the court would have to have objective corroborative evidence to accept that this is true.

[78] When interviewed by Ms. Flint, Shahzad told her that when she was living with her father in 2017 she returned home from school, saw smoke in the air and saw her father quickly run into the bathroom. She stated that the smoke had a distinctive smell, and that when they lived together as a family she often smelled this same smell. She stated that all of her father’s friends smoke and do drugs. She told Ms. Flint that when she interviewed her father to look for something black between his teeth, which would be the drug.

[79] After returning from her father’s, Shahzad spoke to the intake worker at the CAS about Mr. Nezami’s drug use. She indicated that she did not want further access with her father. She also told the worker that she and her father had had an argument, that he had threatened Ms. Khoshbin and that he blamed the family’s issues on her mother and threatened to harm her.

[80] The intake worker met with Mr. Nezami and his probation officer. Mr. Nezami denied initiating contact with Ms. Khoshbin, stating that she was “setting him up” by initiating contact and then taping him and having him charged. He denied past or present drug use and stated that Shahzad had made this up. He acknowledged that there was conflict between he and Shahzad and that he would try to refrain from future conflict.

[81] Mr. Nariman testified that he does not allow his employees to drink while working, and that they are only allowed to smoke cigarettes outside of the restaurant on their breaks. He has never seen Mr. Nezami have an alcoholic drink or smoke hookah, which is also available at the restaurant, during the two years that he lived with him. He had never seen him smoke marijuana. These things were true even when socializing with friends.

[82] I find that Mr. Nezami does have a history of significant opioid drug use. Whether he has overcome the addiction cannot be decided on the evidence before the court. The only evidence of current drug use comes from Shahzad’s report. It may be that she smelled marijuana; her mother’s evidence of “dried vegetables” suggests that Mr. Nezami may have brought marijuana into the home in addition to harder street drugs. Without hearing from Shahzad in person, a position in which the court would never place her, her report is difficult to evaluate.

[83] Still, there is enough evidence of hard drug use in the past for the court to be wary. The toxicology evidence is over three years old and was obtained at points following at least two of the initial incarcerations. The court would also need to have heard medical evidence from a qualified person to determine whether testing was done for cocaine, opium and amphetamines. For all of these reasons, any future access desired by the children should not occur until the Society has had an opportunity to undertake an investigation into Mr. Nezami’s drug use and full criminal history, with Mr. Nezami’s full cooperation.

Recommendations of the Clinical Investigator

[84] The recommendations of Janet Flint in her report dated August 15, 2018 are: Ms. Khoshbin should have sole custody and primary residence of the children, and that Mr. Nezami should not have access with the children. Mr. Nezami should not make any contact with Ms. Khoshbin. The children should participate in counselling to process their exposure to family conflict, their parent’s separation and domestic violence. Ms. Khoshbin should not speak negatively about Mr. Nezami or his family in front of the children, including information, discussions and comments on social media. I gather that this recommendation is a standard one, as I find that there is no evidence that Ms. Khoshbin has done so in the past. Finally, the report should be shared with the York Region Children’s Aid Society.

[85] Ms. Flint testified that she would have concerns about access. Based on her interviews of the children, Ms. Khoshbin, and the collateral information from the Children’s Aid Society and the York Regional police, her information was that Mr. Nezami was physically abusive toward Ms. Khoshbin. The children described witnessing that abuse. Shahzad also described being the victim of physical abuse, and both children expressed a fear of him.

[86] I have previously reviewed much of the information that Ms. Flint obtained from the York Regional Police. Additionally, on January 29, 2016 Ms. Khoshbin reported to the police that Mr. Nezami had been present at the children’s school when she went to pick them up. No charges were laid. On May 30, 2017 Mr. Nezami attended Shahzad’s school in order to give her her shoes, and the school contacted the police. No charges were laid. Part of Mr. Nezami’s testimony was that he was charged for attending the school, which is untrue.

[87] Ms. Flint’s investigation with the York Region Children’s Aid Society provided her with the information that between January 2016 until April 27, 2016 the Society has conducted several investigations with respect to the family due to family conflict. Ms. Khoshbin had reported that her husband used physical discipline with Shahzad, was threatening to physically harm her and had been using opium.

[88] Following a referral in November 2017 from the police, the agency made the decision to monitor the family for support for Ms. Khoshbin, who had reported to the police that Mr. Nezami was contacting her despite a no contact order. The Society has been working with Ms. Khoshbin and providing monthly home visits. The worker made efforts to meet with Mr. Nezami but was unable to reach him.

[89] During her interview with Shahzad on June 8 and July 9, 2018, Shahzad told Ms. Flint that she does not miss her father and has no desire to see him. She stated that neither she nor her sister want to have any contact with their father, and stated that they do not want to exercise any access with him.

[90] She told Ms. Flint about the time that she spent with her father. Again, she described that he was aggressive and mean, and that on one occasion he shoved everything off the table in anger. He had a mean tone of voice. He was never at home and would not respond to her text messages. She said she regretted her decision to live with him. Shahzad described that her father took her to the police station and said that he did not want her. On the last day that she saw her father, she called the police because he wanted her to go to live with someone else, a person she did not know.

[91] Shahzad recounted that when her parents lived together her father was very loud and was often screaming at her mother, and that he would get mad at her for small things like leaving a cup on the counter rather than in the sink. She stated that during that time her father was physically abusive to her mother and would pull on her sister’s ears, and stated that her father would hit her with an open hand and with a closed fist.

[92] Shahzad stated that she worries that her father may unexpectedly show up, and that she and her sister are not allowed to do normal things like go to the mall because they may run into him. On one occasion her father showed up at school and asked for her phone. He switched phones with her because she had a newer model and is now saying that she stole his phone. If her father were to unexpectedly show up she would call the police and then her mother. She relayed that she does not have anything to say to her father. She stated that if a miracle were to happen and her life changed, her father would be dead. She told Ms. Flint that because her father is alive she cannot go to Iran to visit her maternal grandmother, because her father’s family could prevent her from returning to Canada.

[93] Ms. Flint described Shahzad as being bright and articulate, very aware of her circumstances and very talkative.

[94] Ms. Flint also interviewed Arshida privately on June 8 and July 9, 2018, describing her as sweet and initially shy but quickly warming up to the clinician. She was happy, friendly, well spoken and could articulate her thoughts and feelings. She told Ms. Flint that she liked it when her father took her to the aquarium, and when he gave her toys and candy and they stayed at his friend’s house. Arshida stated that she does not want to visit her father. She stated that the last time she saw him at the supervised access centre she was “scared and mad”. Arshida stated that her father does not take care of her or her sister. She indicated that when her sister lived with their father “he was going to have her live at another house with people that she didn’t know”. Arshida told Ms. Flint that when her parents lived together her father hit her mother and that she remembers on one occasion she and her sister hid behind a suitcase. Another time she hid under her sheets laying perfectly flat and still.

[95] Arshida said that if she saw her father in the community or at the house she would tell her mother right away. She and her sister go to a different school so that her father cannot find them. Arshida stated that sometimes when she is outside playing she sees men who look like her father, and that this scares her. Arshida told Ms. Flint that she would be shy to see her father and does not want to see him. She would like to live in a house with her sister and mother and have her dad live elsewhere.

[96] At the access visits, the supervisor noted that when Mr. Nezami would hug Arshida she would sometimes keep her hands at her sides. Shahzad would sit and not really participate in the access visits.

[97] Both children described having a close relationship with her mother. Ms. Flint saw their interactions with one another as being positive, and the girls presented as affectionate and comfortable with Ms. Khoshbin. There is no issue in this proceeding about her abilities in this regard; even Mr. Nezami has stated that she is a good mother.

[98] Shahzad is doing well in school despite the moves, both academically and socially. She is involved in sports and extracurricular activities. Arshida also has no problems socially at school, but at the time of the report appeared to be below level in reading and writing. Her mother explained that this is because she moved from French immersion at the beginning of the 2018 school year.

[99] Ms. Flint spoke with Victim Services and learned that Ms. Khoshbin’s situation has been deemed high risk. The York Regional Police Service recommended that Ms. Khoshbin be in the high-risk program. Ms. Khoshbin has told Victim Services that she is concerned about her safety because Mr. Nezami is unpredictable. Victim Services stated that this is evidenced by the number of breaches Mr. Nezami has committed; while he understands the law he chooses not to follow the orders. Ms. Khoshbin worries about domestic homicide given the threats made to her through her sister.

[100] The OCL report summarizes:

Mr. Mohammad Nezami has been given two distinct and separate opportunities to establish a relationship with his children. Despite these opportunities Mr. Mohammad Nezami’s involvement with the children has been inconsistent, when he was exercising access he didn’t show up or he acted in a disruptive manner. Mr. Mohammad Nezami chose not to build relationship and in making this choice has shown that he is not invested in the children. Ms. Khoshbin was put into the position of having to facilitate access despite a no contact order, she willingly complied with this order despite safety concerns for herself and the children.

Through his involvement with criminal court and the supervised access centre, Mr. Mohammad Nezami has demonstrated that he is unwilling to follow rules. Mr. Mohammad Nezami believes that Ms. Khoshbin has alienated the children from him. This is not a situation of parental alienation or one wherein a parent interferes with access. In addition to consistently facilitating access, for a period of time Ms. Khoshbin allowed Shahzad to reside in his care.

Mr. Mohammad Nezami has not had access with the children since November 2017. Unless Mr. Mohammad Nezami is at a point through self-reflection where he sees that he has to change, access with the children is not in the children’s best interest.

Based on the children’s views and preferences, both Shahzad and Arshida are clear that they do not want to exercise access with Mr. Mohammad Nezami. Mr. Mohammad Nezami’s lack of respect for authority, his blatant disregard for the criminal court system as demonstrated by multiple breaches, his inability to follow rules, a history of domestic violence which was witnessed by the children, and allegations that he physically assaulted Shahzad, the Office of the Children’s Lawyer cannot recommend access at this time.

Mr. Mohammad Nezami has not demonstrated insight into his behaviour and those behaviours have greatly impacted his children. Furthermore, York Regional Police and Victim Services have identified this family as high risk in regards to the domestic violence. Mr. Mohammad Nezami also has not participated with the local Children’s Aid Society in order for them to determine safety in regards to risk of harm to children.

[101] I agree that this is an accurate summary of the state of matters, given the totality of the evidence, and forms the primary basis upon which I find that access is not in the children’s best interests.

[102] Mr. Nezami is fixated on providing material things. He believes that gifts of jewelry and electronics, throwing birthday parties and going on vacations, whether real, imagined or promised, is what proves his fitness as a parent, and proves that he was not the husband described by Ms. Khoshbin. During his cross-examination of her he was fixated on attempting to have her admit that he provided her with gifts and took her special places. Whether any of this is true or not is irrelevant; none of it takes the place of creating relationships of trust that make family members feel safe and secure. He has not done this.

[103] For good reason, I find that Shahzad and Arshida do not feel safe and secure in their father’s presence, particularly emotionally, at this point in their lives. I also find they are at risk of physical and emotional harm in his presence, even when supervised. I find as a fact that each of them has been subject to verbal manipulation, exposed to his rages, and have been hit by him.

[104] Mr. Nezami’s testimony was mainly focused on how this separation and its aftermath has been an ordeal for him. He is fixated on blaming others, primarily Ms. Khoshbin. He was visibly angry with Ms. Flint during his cross-examination of her. He is definitely not “at a point through self-reflection that he sees he has to change”. He constantly portrays himself as the victim. He minimizes the seriousness of his actions. A theme running throughout his testimony was that others have allegedly apologized to him for either wrongly accusing him of things or treating him harshly, and that no one within the history of the criminal justice system in Canada has been treated as severely as him for “one mistake”. What that mistake was was never made clear through his testimony.

[105] Mr. Nezami did not say anything about his plan for access. He did not even reveal where he is living. His only reference to a plan was that he wanted to be able to put all of this behind him and have the girls forget about it and live a normal life.

[106] The court in S.L.I. v. A.D.G., 2011 ONCJ 689, at paras. 58-62, reviewed the case law in which circumstances have required courts to terminate access. Many of these circumstances exist here: long term harassment and harmful behaviours towards the custodial parent, causing parent and child stress and fear; history of violence, unpredictable behavior and drug abuse witnessed by the children and which exposes them to risk of harm; severe denigration of the custodial parent; lack of attachment between parent and child; harmful behavior toward the children during access visits, including using the time to manipulate the children’s feelings; the preference of a 15 year old to terminate access.

[107] Where Arshida is concerned, she is not yet old enough to fully appreciate the consequences of her expressed preference, and the evidence shows that part of her fear may be grounded in her older sister’s experiences or what she has been told about them. Still, the evidence would demand an order that any access be supervised. But Mr. Nezami has exhausted that possibility by his own actions. This is one of these cases where there are no alternatives left. There are no family members in Canada. No one has been proposed.

[108] Accordingly, I find that it is not in the children’s best interests to have access with their father at this time. I leave open to them the possibility that they may choose to initiate access in the future, at which point Mr. Nezami’s ability to act as an access parent can be re-evaluated.

[109] If Mr. Nezami wants a way for his children to be able to contact him in the future, it is suggested that he provide his telephone number, address or email address to the York Region Children’s Aid Society, and provide updates as necessary. In that way, his children will know there is a way to contact him if they choose to do so. The Society will also have a means of initiating an investigation if future access is proposed, so that any concerns can be addressed before access is initiated.

Contact with the Children

[110] There have been two orders made in this proceeding that stipulate that access with Shahzad shall not occur without her consent. Despite these orders, Mr. Nezami expressed the view to the court on June 17, 2019, as reflected in the endorsement of Justice Bennett, that he should be able to attend Shahzad’s school daily if he chooses to do so. That prompted the court to make an order that Mr. Nezami shall not attempt to exercise access to Shahzad unless he brings a motion on notice.

[111] Due to the finding that access with their father is not in the best interests of the children, and because the court has no comfort that Mr. Nezami will respect the wishes of the children, I find that it is necessary to make an order that prohibits him from attempting to contact the children directly or indirectly, and to remain 500 metres away from any location that he knows them to live, recreate, attend school, or hold employment.

Child Support

[112] Ms. Khoshbin testified that Mr. Nezami did not voluntarily pay child support after their separation once he was released from custody on January 18, 2016. He cross-examined her about having access to $1,700 in cash that was kept in a shoe at home; she denied that that was true. He alleges that she used at least one of his credit cards while he was first in jail. He produced a Canadian Tire Mastercard statement, but the only transaction contained on it after Mr. Nezami’s arrest in January 2016 was a charge by Credit Protector in the amount of $8.79. It is unknown whether this was a preauthorized payment and no evidence was given by Mr. Nezami about this charge or why Ms. Khoshbin would need such service. She denies having access to his cards. A text message from Ms. Khoshbin to an individual named Nader, who Mr. Nezami states was one of his sureties, asks Nader to inform Mr. Nezami that she had put $4,500 on the CIBC Visa for expenses for the children. I infer from her evidence that she may have had her own card that was connected to the account.

[113] The first child support order made in this proceeding was made on September 15, 2016, on consent. Mr. Nezami agreed to pay support in the amount of $522 per month starting November 1, 2016, based on an income of $36,000 per annum.

[114] The July 11, 2017 order provides that on a temporary, without prejudice basis, Mr. Nezami was to pay child support based on an annual income of $37,252 in the amount of $537 monthly beginning on February 1, 2017. Again, this order was made on consent.

[115] Ms. Khoshbin’s evidence was that she received support for four or five months after the 2017 order was made, but that otherwise she has not received any support for the past three years. There is evidence that although Mr. Nezami may not have made periodic payments, his tax refunds for 2017 and 2018, some GST refunds and Trillium Benefit have been garnished by the Family Responsibility Office.

[116] Mr. Nezami accused Ms. Khoshbin of being dishonest about the amount of support that she received. He accused her of testifying that she had only received four or five months of support. She did not do so; she specifically said that she only received four or five months of payments since the last order in 2017. Mr. Nezami produced a disorganized collection of bank transactions slips and account statements, many of which are duplicates, which ultimately supports her evidence. Although Mr. Nezami produced evidence of payments in the amount of $522 for several months in 2017, the only proof of payment after the order of July 11, 2017 is: $530 on October 31, 2017, $1,000 on March 8, 2018, $537.02 on April 26, 2018; $250 on May 23, 2018; $300 on May 18, 2018. Five payments in total following the 2017 support order.

[117] This exhibit also shows that on April 26, 2017 Mr. Nezami made a withdrawal of $1,800. Before the withdrawal the balance in his account was $2,342.59. On June 16, 2017 the balance in his account stood at $3,827.78. Other sporadic bank statements produced in his financial disclosure package show low to overdrawn balances in 2017 and 2018.

[118] Neither party produced a statement of arrears from the Family Responsibility Office. But I do accept that Ms. Khoshbin has gone into debt to provide the essentials for her daughters.

[119] Mr. Nezami has not kept the Family Responsibility Office advised of where he works or lives. His employment history had to be pieced together from the various exhibits and the testimony. Ms. Khoshbin has always been kept largely in the dark about her husband’s jobs, both in Iran and after moving to Canada. He paid his support in cash.

[120] Mr. Nezami said that after arriving in Canada, he held employment as a construction labourer and worked in supermarkets. His evidence is that he eventually became a food manager at one of the supermarkets, earning $12-$13 per hour.

[121] He eventually got into restaurant work, working his way up through the kitchens to more responsible positions. A newspaper clipping from 2013 announcing the opening of the Zagros Grill House shows a picture of Mr. Nezami. He is referred to as “Chef Farhad Nezami”. Mr. Nezami testified that he only worked there for a few months, one day per week, and was paid $300 a day. His evidence is that the owner keeps in touch with him and would still give him a good reference.

[122] In 2015 he worked as a cook at Tehran Kabab. His T4 statement for 2015 indicates employment income of $31,248. He was working at this restaurant at the time of the parties’ separation.

[123] After his release from jail he initially obtained work at another restaurant, likely briefly. On the only financial statement filed by Mr. Nezami in this proceeding, sworn on April 1, 2016, he indicated that he had been employed at Papas Pastry since March 2016. At some time after this he went back into jail and was released on his second release order on July 15, 2016.

[124] He filed an affidavit stating that he started employment at Vida Café and Lounge, located at 120 Newkirk Road, Richmond Hill, on or about January 1, 2017, and was earning approximately $30,000 per year. An attached pay statement revealed that his annual income was $37,252.

[125] The Vida Café and Lounge is owned or operated by Mr. Nariman. It is run under a corporation. On May 15, 2017 Mr. Nezami received 49 shares of the corporation, along with another man who has been referred to as “Dadashpour” in this proceeding. The first page of a corporation profile report shows that the company was incorporated on May 15, 2017. The second page of that report, which would have shown the officers’ names, is not part of the exhibit. The head office is 120 Newkirk Road. Mr. Nezami’s evidence is that he was trying to pay off his purchase of the shares through his salary and would have been part owner of the restaurant in a year or two.

[126] During this time he lived with Mr. Nariman. I find as a fact that he lived and worked with Mr. Nariman from late 2016 and throughout 2017, until August 2018. As of January 1, 2017, he was earning $37,252. Although he would have spent some time in jail in 2017, he has not proven how long those periods were.

[127] Mr. Nezami testified that the Vida Café was owned by Farsi Foods Inc. That company produced a T4 statement to him for 2017 in the amount of $12,146. His address at that time was shown as 3 Steele Valley Road, Thornhill. Another T4 statement for 2017 was received from Vida Café and Lounge Inc. in the sum of $1,040.

[128] Mr. Nezami’s share certificate is marked as cancelled on August 1, 2017. He testified that he partnered in this business as an owner, but he lost the opportunity when the police came and arrested him. His ownership interest lasted for four months. Mr. Nezami testified that Mr. Nariman told him that he could no longer be at the store because Ms. Khoshbin “brought the police to the store three times” and because Shahzad and her mother posted a Facebook message saying that he was an addict and other negative things.

[129] Mr. Nezami testified that this incident caused him to lose his job, to be unemployed for two years and to go on welfare. He could not get another job. However, a pay statement from Farsi Food Inc. for the pay period February 1-28, 2018 indicates a gross income of $912 per month. The T4 statement from 2018 indicates employment income of $8,536, and again shows Mr. Nezami living on Steele Valley Road. Mr. Nezami stated that a friend allowed him to stay at his house on Steele Valley Road without paying rent. This friend also gave him an unpaid position coaching soccer.

[130] As part of the July 11, 2017 order, Mr. Nezami was ordered to provide all of his bank and credit card statements from January 1, 2015 to present, a copy of his income tax return and notice of assessment for 2016, and a copy of his T4 statements for 2015 and 2016 and a letter from all of his employers in those years outlining the amount of compensation received. He did not produce the vast majority of this information. Other than the T4 statements and pay stubs referenced earlier, Mr. Nezami has produced the following proof of income:

Notice of Assessment 2012 - $21,943

Notice of Assessment 2013 - $14,124

Notice of Assessment 2016 - $1.00

Income tax return 2017 - $13,186

[131] The evidence leads me to find that Mr. Nezami was employed by Mr. Nariman from late 2016 and throughout 2017, until August 2018. As of January 1, 2017, he was earning $37,252. Although he would have spent some time in jail in 2017, he has not proven how long those periods were.

[132] However, I do not accept that he earned the amounts contained in his T4 statements for 2017. The girls and their father exercised nine supervised access visits between October 2, 2016 and May 14, 2017. Despite his evidence of having low income during that time, the notes from the supervised access centre indicate that on each of those visits he brought gifts - a “vast amount” of chocolate along with gold bracelets, necklaces and watches, toys, food, candy, an iPhone, one hundred dollars in cash to each child on one occasion and the same amount to Shahzad on another occasion, and offered to provide cash on another visit. Mr. Nezami also had unexplained funds in his bank account in 2017, as previously noted.

[133] I impute income to him for 2017 of $30,000. For the eight months of 2018 in which he was working for Mr. Nariman, I impute income to him at two thirds of this amount, or $20,000.

[134] The evidence suggests that thereafter he spent time in downtown Toronto living in a shelter. This was most likely at the end of 2018. He has filed a copy of a business card from a police officer attached to a note asking for allowance for free transit on October 18, 2018 with a map showing the destination of a shelter on Peter Street in Toronto. He also testified that he stayed at Seaton House, another shelter. He had assistance from Toronto Employment & Social Services.

[135] He received $343 from Ontario Works in January, 2019. This was increased to include a shelter allowance; in November 2019 he received $763. He testified that he still receives this amount, and that he has been approved for benefits from the Ontario Disability Support Plan beginning in January, 2020. No medical evidence was provided to support the reason for his qualification into this program.

[136] His Notice of Change of Representation dated June 28, 2019 shows that his address at that time was still 120 Newkirk Road. The letter from Toronto North Support Services dated August 21, 2019 suggests that he has found new housing since then.

[137] At the end of this past summer, Ms. Khoshbin and the children entered Parya Restaurant in Aurora to get some food. To their surprise, they saw Mr. Nezami working in the kitchen. As soon as he saw them he got in his car and drove away. Ms. Khoshbin took a picture of the front of the restaurant. Mr. Nezami’s explanation for this was that he had been at the courthouse in Newmarket that day and was hungry. He went to this restaurant because it is owned by a friend, and that he only went there to eat.

[138] His evidence is that he has only applied for one job in the past couple of years, which was to be an Uber driver. He was not able to obtain this position due to his criminal record. He has not applied for any jobs in restaurants. He explained that he has not done so because the Iranian community is small, everyone knows about his problems and fears that Ms. Khoshbin will create problems at their businesses.

[139] He has filed collection letters for recovery of his consumer credit debt owed to Canadian Tire Mastercard, Scotiabank for his vehicle loan, The Brick, RBC and TD Financing Services. His debt stands in the tens of thousands of dollars, but this is not an impediment to a child support order.

[140] The only evidence of physical problems comes from Mr. Nezami, who indicated that he went to the hospital in 2016 and 2019 due to “nerve problems” in his leg and back. In a few hours the seizing of his nerves got better. He did not complain of any other physical issues and there is nothing indicating problems in the medical documentation produced by him. None of the evidence from doctors suggests that he is incapable of working.

[141] Mr. Nezami told the court that he only needs to be able to see his children in order to turn his life around. If the court were to provide him with access, he would be able to throw off his despondency, stop taking medication and get a job. He would willingly pay even more than $522 per month. However, without access he was without motivation to obtain a job and his mental health problems would likely continue. That was his evidence.

[142] I do accept that this has been an ordeal for Mr. Nezami, although one of his own making. Still, the court must take into account the realities of what has occurred - periods of incarceration in which he was unable to earn income, somewhat diminished income due to living with his surety, and a period of lack of housing and receiving social assistance. Even though this results from blameworthy conduct i.e. his criminal conduct, there is no point in making orders with which Mr. Nezami is unable to comply. However, his period of grace has come to an end, as it is time for Mr. Nezami to look for employment in a restaurant. I find based on the available evidence that there is currently no medical reason preventing Mr. Nezami from earning close to his pre-separation levels of income if he put his mind to it. He has testified that he maintains at least one positive connection in the industry from which he could get a reference. If he is unsuccessful in that regard, he can obtain work as a construction labourer or in a grocery store, as he did when he first arrived in Canada.

Orders

[143] For the foregoing reasons, this court orders on a final basis:

There shall be no access between the respondent, Farhad Mohammad Nezami, and the children, Shahzad Mohammad Nezami born March 1, 2004 and Arshida Mohammad Nezami born July 26, 2011. Any future contact between them shall not occur without the children’s express wish to have it occur.
No such future access shall occur until the York Region Children’s Aid Society, or such other child protection agency have jurisdiction where the children then reside, have been notified and have had an opportunity to investigate and assess risk.
Mr. Nezami shall be prohibited from contacting or communicating with the children directly or indirectly and shall remain 500 metres away from any location that he knows them to live, recreate, attend school, or hold employment.
Mr. Nezami shall be restrained from contacting or communicating with the applicant, Shohreh Khoshbin, directly or indirectly, or from coming within 500 metres of her residence or places of education or employment.
The applicant shall be able to obtain all government documents on behalf of the children, including passports and health cards, and renewals of same, without the consent of the respondent.
The applicant shall be able to travel with the children outside of Canada without the consent of the respondent.
The respondent shall pay periodic child support to the applicant for the two children as follows:

(a) From February 1, 2016 to December 1, 2016, the sum of $103 per month, based on an imputed income of $13,200 per annum;

(b) From January 1, 2017 to December 1, 2017, the sum of $459 per month, based on an imputed income of $30,000 per annum;

(c) From January 1, 2018 to December 1, 2018, the sum of $311 per month, based on an imputed income of $20,000 per annum;

(d) From January 1, 2019 to December 1, 2019, the sum of $0 based on an income of less than $12,000 per annum;

(e) From January 1, 2020 and thereafter on the first day of each month, the sum of $474 per month based on an imputed income of $31,000 per year.

Any overpayments made to the applicant as a result of earlier orders made in this proceeding shall be credited by the Family Responsibility Office against child support payments owed under this order.
The necessity of the respondent’s approval of the formal order is hereby dispensed with, on this and earlier orders made in this proceeding.
A support deduction order shall issue.
The applicant may proceed to obtain a divorce.[^1]

Costs

[144] The applicant will have her costs of this action. Submissions on costs, limited to 3 pages plus any Offers to Settle and a Bill of Costs are to be served and filed with the court on the following time line: the applicant, by December 12, the respondent, by December 19, 2019.

Madam Justice S. E. Healey

Released: December 5, 2019

[^1]: The court was unable to make an order for the divorce as there was no Clearance Certificate in the file.

Khoshbin v. Nezami, 2019 ONSC 7087

Case Summary

Overview

Credibility

The Law

The History of the Parties

Criminal History

History of Access

Drug Use

Recommendations of the Clinical Investigator

Contact with the Children

Child Support

Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 1

Legislation 2