NEWMARKET COURT FILE NO.: FC-20-1284-00

DATE: 20200924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peyman Zamanian Applicant

– AND –

Dania Cuevas Encarnacion Respondent

Arwa DeSantis, Counsel for the Applicant

Cynthia Lauer, Counsel for the Respondent

HEARD: In Writing on September 24, 2020

Ruling on Urgent Motion

JARVIS J.

[1] The applicant (“the father”) has brought an urgent motion for, essentially, an Order preventing the removal from Ontario of the parties’ two children and for their custody. He has filed his own affidavit and six affidavits from members of his family and friends. He initially sought the Order requested without notice to the respondent (“the mother”) even though she was then represented by a lawyer (not Ms. Lauer who is now on the record).

[2] On September 18, 2020 Bennett J. ordered that the father serve the mother with his material, adjourned the motion to today and directed that neither party remove the children from York Region, the Province of Ontario or Canada. His Honour noted that there was no probative evidence that the mother planned to leave the country.

[3] The mother was served on September 21, 2020 and delivered a responding affidavit late on September 22, 2020. In that affidavit she stated that she never had any plans to move from Canada and that she had deposited the children’s passports with Ms. Lauer until further Order of the court or agreement between the parties.

[4] The children, both daughters, are 8 and 3 years old. The parties separated on or about September 8, 2020 when the mother and the children went to a shelter for abused women. She and the children are now in an undisclosed hotel in the Toronto area for quarantine and security purposes. The police are knowledgeable of her circumstances. She applied, and has the support of the York Region Children’s Aid Society (“the Society”), for Special Priority Housing. The Society became involved with the family in late July 2020 as a result of the children’s exposure to family conflict. Pending that housing being obtained the mother would like to be able to have the parties’ oldest child registered in a school for on-line learning. Where she is residing right now is outside of the school district and the child is ineligible for this form of education.

[5] The mother proposed through her former lawyer that the children have daily telephone access with their father on the condition that he not ask the children where they were residing and that the conversations would not be recorded. The father refused. There is evidence from the mother that before the parties separated the father and members of the family were video-recording the mother and the children. The father says that the mother installed recording devices as well. I am unimpressed with the conduct of each party if any of these allegations is true.

[6] The father seeks an Order for custody. There is evidence of domestic violence. The case is in its early stages. In my view, the father’s principle concern about the children being taken out of the jurisdiction has been remedied by the Order of Bennett J. and the mother’s deposit of the children’s passports with her lawyer. I am not prepared to make a custody Order or to alter the current residency arrangements on an emergency basis.

[7] Based on the evidence before the court and the June 26, 2020 Notice to the Profession it is not necessary to hear oral submissions. The court has before it all the evidence thought relevant by the parties to make a temporary Order.

[8] The following is ordered:

(a) The children shall primarily reside with their mother on a without prejudice basis until further Order of this court;

(b) The Order of Bennett J. made September 18, 2020 is varied by deleting the reference to York Region and substituting for that term “The Greater Toronto Area”;

(c) Ms. Lauer shall continue to hold the children’s passports until further Order of the court or agreement between the parties. This term shall apply even should Ms. Lauer be discharged as the mother’s lawyer unless an Order relieving her of that obligation is made;

(d) The parties shall schedule a case conference to be held as soon as practicable. As part of their Briefs, the parties are to include their proposed parenting plan;

(e) The father shall be entitled to daily telephone and/or Skype access to the children, the details of which are to be arranged through the parties’ lawyers. The father shall not ask anything of the children that may disclose their location nor shall he record the interactions between the children and him. This prohibition shall apply to anyone known to the parties, including the mother. The parties will be held accountable for any breach of this term by third parties;

(f) The mother shall be entitled to register the parties’ oldest child in school in the Greater Toronto Area or York Region for the purposes of on-line learning until further Order of the court;

(g) Costs are reserved.

Justice David A. Jarvis

Date: September 24, 2020