COURT FILE NO: FS-21-21679

DATE: 20210817

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marjan Atashi Golestan

Applicant

– and –

Vahid Ebrahimzadeh

Respondent

James Herbert, for the Applicant

Belinda Rossi and Hanna Rich, for the Respondent

HEARD: August 9, 2021

Kraft, J.

REASONS FOR ORDER

Nature of Motion

[1] Both parties have brought motions seeking temporary orders for parenting time with their two children and decision-making authority with respect to the important decisions relating to their children. The Applicant (“wife”) believes that there is an imminent risk that the Respondent (“husband”) will abduct the children to Iran, particularly the parties’ youngest child, age 8. Iran is not a party to Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). As a result, the wife seeks an order that the husband have supervised parenting time at an access centre for 4 hours a week, which she submits is the only sure way to prevent an abduction.

[2] The husband expressly denies that he has any intention of taking the children to Iran or removing them from Toronto. He submits that the wife’s abduction concerns are fabricated. The husband believes that the wife is alienating the children against him. He is concerned that the wife is placing both children in a loyalty bind by exposing them to parental conflict without regard to the negative impacts this has on the them. He seeks to have equal parenting time with the children, on a week on/week off basis, and for the parties to share decision-making authority with regard to all important decisions affecting the children.

[3] The parties have been living separate and apart in the matrimonial home. The matrimonial home has been sold and the transaction closes on September 21, 2021. The parenting issues need to be determined on a temporary basis so each parent knows where the children will be residing.

[4] Specifically, the wife seeks the following relief:

a. An order for temporary primary residence of the parties’ two children;

b. An order for sole decision-making authority in relation to the children;

c. An order that the Respondent (“husband”) have supervised parenting time with the two children, for four hours each weekend at a supervised access centre;

d. An order that the Court refer the matter to the Office of the Children’s Lawyer (“OCL”) so they can provide independent representation for the children; conduct a Voice of the Children Report, or a s.112 assessment; and

e. A non-removal order preventing the husband from removing the children from Ontario.

[5] The husband seeks the following relief:

a. An order for an equal parenting-time schedule where the two children will reside with the parties on a week on/week off basis, with the exchange day to take place on Friday;

b. An order that that the parties share joint decision-making authority in relation to the children;

c. An order that the wife attend a parenting course to assist her in appreciating the impact on the children of her placing them in a loyalty bind and in the middle of parental conflict;

d. An order that the wife facilitate the husband’s parenting time with the children; and

e. An order that the sum of $100,000 be released to him from the net proceeds of sale from the sale of the parties’ matrimonial home to enable him to purchase a new home.

[6] Both parties filed extensive motion material in support of the relief sought and in response to the other’s motion. In addition to her own affidavits, the wife filed 5 affidavits from third-parties and a Factum.[^1] Similarly, the husband filed affidavits in his name and 4 affidavits from third-parties and a Factum.[^2]

[7] The parties have presented diametrically opposed narratives about their respective parenting roles and family history. Without the benefit of viva voce evidence, the Court is being asked to determine, among other things, which parent’s proposed parenting plan and decision-making regime is in the children’s best interest on an extensive written record. The motions proceeded by way of a long motion on August 9, 2021. I reserved my decision. This is my endorsement and Reasons for my Order.

Litigation History

[8] On February 16, 2021, the wife issued an Application. The husband filed an Answer on April 26, 2021.

[9] On May 26, 2021, Kimmel, J. heard an urgent case conference to address an impending default of the first mortgage registered against the parties’ matrimonial home in favour of RBC; the increased hostility and conflict in the matrimonial home and its impact on the best interests of the parties’ children; and each parties’ concern that the other parent may have plans to remove the children from Ontario.

[10] At the case conference, Kimmel, J. made a mutual non-removal order, on consent, preventing either party from removing the children from Ontario without the consent of each other and requiring the consent of both parents for any application for authorization for the children to travel to another country. The Endorsement of Kimmel, J. sets out a schedule for two separate motions to be heard: (1) the husband’s motion for the sale of the matrimonial home was to be returned on June 10, 2021; and (2) both parties’ motions to address parenting time and decision-making was to heard as a long motion, returnable on August 9, 2021.

[11] On June 10, 2021, Nakonechny, J. ordered that the matrimonial home be immediately partitioned and sold and the ancillary relief associated with the terms of the sale. Again, the matrimonial home has been sold and the transaction closes on September 21, 2021.

[12] I heard the parenting time and decision-making motion on August 9, 2021.

Procedural Issues

[13] At the start of the hearing on August 9^th, 2021, a procedural issue was raised by the husband, as follows:

a. Whether the affidavit of Sharareh Mofidian, sworn on July 31, 2021 (“the Mofidian Expert affidavit), proffered by the wife, as an expert’s report ought to be struck from the record because Sharareh Mofidian does not qualify as an “expert” in Iranian law, relating to Iranian government policy in issuing passports.

[14] The wife filed the Mofidian Expert affidavit, along with a resume for Ms. Mofidian and an Acknowledgement of Expert’s Duty sworn by Ms. Mofidian, in support of the relief she seeks on this motion, specifically in relation to her claim that the husband have supervised time only with the children because of her concern that he will abduct the children and take them to Iran. More particularly, the Mofidian Expert affidavit is being proffered by the wife as an expert opinion on Iranian law and government policy in issuing passports to demonstrate that the husband could obtain Iranian passports for both children without the need for the wife’s consent, by apparently simply stating the passports are lost and by him applying for replacement passports in Washington, USA. The wife submits that this report is “critical” to the motion because it supports her concern that the husband has the ability to abduct the children and take them to Iran, which is not a signatory to the Hague Convention.

[15] The husband made submissions that the Mofidian Expert affidavit should be struck from the record as an expert’s report, for the following reasons:

a. It is not a proper expert witness report as required by Rule 20.2 of the Family Law Rules (“FLR”), as it is in the form of an affidavit;

b. Ms. Mofidian is not an independent witness, despite the fact that she signed Form 20.2, an Acknowledgement of Expert’s Duty. Ms. Mofidian is a prior employee of the wife at the law firm founded by the wife in Iran. As such, the husband submits that Mr. Mofidian is not impartial and cannot give fair, objective and non-partisan expert opinion evidence.

c. The resume of Ms. Mofidian does not support that she is an expert in Iranian law, particularly Iranian government policy in issuing passports, as she deposes in her affidavit, sworn on July 31^st, 2021. Instead, her resume evidences that Ms. Mofidian has a degree in Private Law and that she has published articles in various journals about contractual liability;

d. The Mofidian Expert affidavit was served on the husband on August 3, 2021, for a long motion returnable on August 9, 2021, leaving the husband with no opportunity to cross-examine Ms. Mofidian. Further, Ms. Mofidian was not made available to the wife to be cross-examined or to be qualified as an expert witness at the commencement of the long motion; and

e. The Mofidian Expert affidavit does not comply with Rule 20.2(2) of the FLR because it does not set out in her affidavit, which is presented as an “expert report”, a description of the research she conducted or a description and explanation of every document or other source of information directly relied on by her in forming her opinion. Furthermore, the Mofidian Expert affidavit does not comply with Rule 20.2(5) in that there is no written statement of facts on which Ms. Mofidian’s opinion was based, nor did the affidavit attach a copy of the documents on which she relied in forming her opinion.

[16] After hearing submissions from both counsel, I rendered an oral ruling that the Mofidian Expert affidavit be struck from the record of evidence, for the following reasons:

a. Ms. Mofidian was not “qualified” in relation to the inferences she offered in her affidavit about the issuing of Iranian passports. Given that Ms. Mofidian was not made available at the motion, or beforehand for Ms. Rossi to conduct a cross-examination, there was no voir dire to qualify Ms. Mofidian as an expert, which is necessary to determine the admissibility of her affidavit and to set limits of what Ms. Mofidian may say and how her evidence is to be presented.

b. The four criteria of admissibility set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”), developed by the Supreme Court of Canada were designed to address the danger that expert evidence will be misused and distort the fact-finding process. Applying Mohan to this case, the Mofidian Expert affidavit meets the first three criteria, being that the evidence is a) relevant; b) necessary; and c) there are no applicable exclusionary rules. However, the Mofidian Expert affidavit does not meet the fourth criteria because Ms. Mofidian was not properly qualified as an expert witness.

c. In the case of White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCC 182 (“White Burgess”), an updated framework for the admissibility of expert evidence was provided by the S.C.C., assimilating the rules of admissibility, the expert’s duty of impartiality, independence and absence of bias. In particular, White Burgess explains how these concerns should be handled and resolves the debate as to whether these concerns should be addressed at the admissibility stage or during the witness’ cross-examination. Experts have a duty to the court to give fair, objective and non-partisan opinion evidence. Since Ms. Mofidian does not meet this threshold requirement, her testimony has to be excluded. It is only once the threshold is met that any concerns about the expert’s independence or impartiality are considered in the overall weighing of the costs-benefits analysis.

[17] At the threshold stage, I was not persuaded that the wife established the fourth criteria set out in Mohan, or requirement of admissibility, namely, that Ms. Mofidian is a qualified expert. The wife had the onus of showing that Ms. Mofidian was qualified to give the relevant evidence, regarding the issuing of Iranian passports, which she did not meet.

[18] The parties knew on May 26, 2021, at the case conference before Kimmel, J., that their respective parenting motions were to be heard by the court on August 9^th, 2021. The wife had taken the position at that case conference that she considered the husband to be a flight risk. In fact, it was her concern that led to the parties reaching a consent about a mutual non-removal order. The wife, therefore, had ample opportunity over the last three months to produce a report from Ms. Mofidian and ensure she was qualified as an expert regarding Iranian policies on the issuing of passports. She did not do so. The wife chose to have a prior employee of the wife’s, Ms. Mofidian, swear an affidavit as an expert and both the wife and Ms. Mofidian failed to advise the court of their prior relationship. It is noteworthy that when counsel for the husband raised the connection between Ms. Mofidian and the wife from the law firm in Iran founded by the wife, the wife did not deny their prior existing employer-employee relationship. The wife ought to have arranged for an independent expert in Iran to provide the report she sought. She did not do so.

[19] Upon my ruling that the Mofidian Expert affidavit was to be struck from the record, counsel for the wife asked the court for leave to file a supplementary affidavit in his client’s name to enable her to attach documents from a government website as to the rules regarding the issuing of Iranian passports and submitted that he required a 20-minute recess to do so. The husband objected to the wife being granted such latitude on the morning of the long motion, based on prejudice and unfairness in terms of procedure and the husband’s ability to respond to such a supplementary affidavit. The Endorsement of Kimmel, J., dated May 26, 2021, set out a timetable for the parties within which they were to serve and file their motion material. The husband submitted that the wife ought not to be given additional latitude to file a supplementary affidavit because of her improper filing of an alleged “expert” report.

[20] I declined to grant leave to the wife to file a supplementary affidavit. I found that the parenting issues are urgent and need to be determined because the parties’ matrimonial home has sold and they cannot agree on a temporary parenting schedule or decision-making responsibility for their children. As a result, neither party can move out of the matrimonial home with the children, without the determination of this motion. Granting the wife leave on the day of the hearing to file a supplementary affidavit would also likely have necessitated an adjournment of the long motion which, in my view, was not in the best interests of these children.

Background Facts

[21] The parties were married on December 2, 1999. They have two children, namely, Ro. born July 30, 2005 (currently, age 16) and Ry., born July 30, 2013, (current age 8). Ry. was born in the United States.

[22] The wife is 45 years of age; the husband is 54 years of age. They are both dual citizens of Iran and Canada.

[23] Ro. is a citizen of Iran and Canada. Ry. is a citizen of Iran, Canada and the U.S.A.

[24] Until March of 2017, the parties lived in Tehran, Iran, where the wife worked as a lawyer and the husband worked as a psychiatrist.

[25] The parties and children have Green cards (permanent residency cards) for the United States. The wife’s parents and sisters reside in the United States.

[26] In 2017, the parties decided that they would move to Canada. The wife and children moved to Canada in March 2017. The husband stayed in Iran. He spent on average about 2 months with the wife and children each year (in 2017, 2018 and 2019) until he came to Canada on November 16, 2020.

[27] Ro. attends Lawrence Park Collegiate and Ry. attends John Ross Robertson Junior Public School.

[28] In August 2020, the parties purchased the matrimonial home, located at 3 Aldbury Gardens, title to which was taken in the husband’s name. On closing, the husband executed a Trust Declaration, indicating that both parties owned a 50% beneficial interest in 3 Aldbury Gardens. The home was purchased for approximately $2,300,000. There was a first mortgage registered on title, in favour of Royal Bank for $1,850,000. There was also a second mortgage in favour of the wife in the sum of $1,156,500. The validity of this second mortgage is in dispute in this litigation.

[29] The matrimonial home has now been sold, with a closing date of September 21, 2021. The home sold for $2,535,000. The wife seeks to have the real estate lawyer hold the net proceeds in trust, pending the resolution of the issue regarding the validity of the second mortgage. The husband, as part of this motion, seeks to have $100,000 of the net proceeds released to him so he can purchase alternative accommodation for himself and the children.

[30] The wife has leased a three-bedroom home in Toronto on Briar Hill Avenue, at the rate of $5,000 a month. The children can continue to attend their current schools. The husband has signed a lease for a two-bedroom apartment on Broadway Avenue, at Yonge and Eglinton, not far from where the wife purchased her new home.

[31] In September 2020, the wife and children visited the wife’s parents in Walnut Creek, California, where the maternal grandparents live. The wife returned to Canada and left the children in California with her parents. According to the wife, when the children were at her parent’s home between September and October 2020, the husband tried to convince the children to move to Iran. The husband denies this.

[32] The wife’s parents brought the children back to Canada on October 20, 2020, and have remained living with the parties since then. According to the husband, the wife’s parents have contributed to the conflict in the home.

[33] In November 16, 2020, the husband came to Canada from Iran. According to the wife, the husband has been in Canada for about 10 months, but he does not intend to stay in Canada permanently. According to the husband, he moved to Canada in November 2020 with the intention of settling here with the wife and children. He deposes that he has no intention of leaving.

[34] According to the wife, the parties separated on February 29, 2020, when the husband had travelled from Iran to Canada. According to the husband, the parties separated on November 16, 2020, when he arrived in Canada from Iran to move here permanently.

The Wife’s Position on Parenting

[35] The wife is seeking an order for an extremely restrictive parenting schedule for the husband, namely, that the children spend four hours of supervised time with the husband, once a week, because she believes there is an imminent and acute risk that the husband will abduct the children (ages 16 and 8) to Iran and there is no other way to prevent an abduction.

[36] The wife deposes that she has always been the children’s primary parent; there is no history of co-operative parenting between her and the husband and, as a result, she is the parent who should have primary residence of the children and sole decision-making authority. Although the wife was a licensed lawyer in Iran, she deposes that she only worked part-time, did not pursue her legal career and her primary responsibility during the marriage was caring for her children. The wife submits that the husband worked as a successful psychiatrist in Iran and had a very busy practice. The wife deposes that the husband was so busy with work that he “did not bother to attend Ry.’s birth in the U.S.”.

[37] The wife maintains that the husband is exaggerating her law career success in Iran. She deposes that her law practice was part-time only; her licence to practice law in Iran expired in November 2019; she is not licensed to practice law in Ontario; she did advise corporations in Iran but this was for a short time period, years ago; and her law firm website was designed for marketing purposes only.

[38] The basis for the wife’s fears that the husband will abduct the children to Iran is set out in her affidavit, sworn on July 27, 2021, and is as follows:

a. The husband attempted to get the children to Iran in October 2020;

b. In October 2020, the husband threatened to ruin the wife’s life, bring the children to Iran, deny her access to the children and take control of the family property;

c. The husband is very angry at the wife and wishes to punish her;

d. The husband is 54 years old. He has a successful career in Iran as a psychiatrist;

e. The husband is not licensed to practice medicine in Ontario and he has taken no steps to get a licence. His career prospects in Ontario are bleak;

f. He has business interests in Iran and none in Canada;

g. He has family and friends in Iran. He only has one family member in Canada and no friends; and

h. His English is passable but not excellent.

[39] Specifically, the details of the wife’s concerns regarding the husband, as set out in her affidavit are as follows:

a. The husband attempted to convince the children that they should come to Iran to live during a series of telephone calls with the children over a two-week period in September/October 2020; the husband told Ry. that they would have fun activities in Iran and Ry. was excited to go to Iran; but Ro. was not interested in going to Iran; when the children did not want to go to Iran, the husband then told the children he would come to the United States and take them on a trip to Mexico or another country, and they might have a short stop in Iran;

b. It was her impression that the husband was trying to trick the children into coming to Iran by telling them it would be a short side trip, within an overall family fun holiday;

c. The husband called the wife’s father, asking him to bring both children to Iran. When the wife’s father refused to take the children to Iran, the husband made threats against the wife’s father and told him to keep the children in Walnut Creek, California and the husband would fly there;

d. On October 20, 2020, the wife’s parents brought the children back to Toronto and have remained living with the wife and children in Toronto to provide support to them;

e. The husband called the wife in October 2020 and threatened her life; threatened to take the children, all the money and her property;

f. On November 16, 2020, the husband flew from Tehran to Toronto and has been living with the wife and children, separate and apart in the home, since that date;

g. The husband’s behaviour has become erratic; he threatened suicide twice; he is angry and aggressive; he is an intimidating presence; and he has threatened the wife’s father;

h. On March 23, April 1 and May 14, 2021, the wife called the police as a result of the husband’s intimidating behaviour; on May 11, 2021, Ro. called the police; and the police came to the home on two occasions; May 11^th and 14^th. No criminal charges were laid;

i. Ro. is estranged from the husband because of his behaviour and she does not want to spend time with the husband. Ry. is not angry with the husband but, the wife deposes that he is afraid of the husband; and

j. The husband has an Ontario’s driver’s licence but has not leased or purchased a car in Canada since he arrived in November 2020, which the wife deposes is unusual and an indication of his lack of ties to Canada.

[40] The wife acknowledges that the husband suggested jointly retaining a professional to discuss the impact of the conflict on the children. She deposes that prior to the husband making this suggestion, she had proposed retaining a social worker to report on the children’s views and preferences. In her affidavit, the wife deposes that she does not disagree with the husband’s proposal to retain a professional to assist them in post-separation parenting, but the husband ignored her request to obtain a Voice of the Child Report.

The Husband’s Position on Parenting

[41] The husband submits that there is no reason for the wife to be concerned about him trying to take the children to Iran. He deposes that he has no intention of doing so; he understands that the children are connected to their schools and friends in Canada; and he has very strong ties to Ontario. The husband asserts that his father passed away and his siblings do not live in Iran; he has many close relatives and friends in Ontario; he spent a significant amount of time and money moving the family’s entire lives from Iran to Ontario; he is taking English classes 5 days a week; he plans to take steps to become a psychotherapist in Ontario; he has no plans to return or reside in Iran; and he would never do anything to hurt the children or to frustrate their relationship with the wife.

[42] The husband submits that the wife’s alleged concern that he will abduct the children to Iran is fabricated, in an attempt to gain a litigation advantage. He denies that he ever threated to remove the children to Iran. He denies that he suggested that he would take the children to Mexico, with a short stop in Iran. The husband deposes that he would never have suggested taking the children to Mexico in the midst of the Covid-19 pandemic.

[43] The husband deposes that the wife is actively trying to alienate the children against him and that she continually places the children in a loyalty bind between them. On this basis, the husband seeks an equal time-sharing parenting schedule, where the children will reside with each parent on a week on/week off basis, with Friday being the exchange day. He believes it is in the children’s best interests to spend meaningful time with both parents. Additionally, the husband seeks joint decision-making authority in relation to major decisions that impact the children and if the parties cannot agree, they can seek court assistance.

[44] According to the husband, the wife issued an Application in February 2021 and did not seek a non-removal order in her pleadings. Instead, she sought to relocate with the children to either another province within Canada and to the U.S. where her parents and sisters live. Specifically, she sought an order dispensing with the husband’s consent to relocate with the children and dispensing with the husband’s consent to obtain passports for the children. The husband maintains that if the wife were truly concerned that he was a flight risk, and capable of abducting the children to Iran, she would have sought relief in that regard when she began her case, but she did not do so. Furthermore, the husband submits that the wife did not begin these proceedings with an urgent motion requesting a non-removal order at any point. Instead, the husband is the party that sought a non-removal order in his Answer, dated April 23, 2021; he made the request for an urgent case conference and at the case conference, the parties consented to a mutual non-removal order.

[45] The husband deposes that once he served his Answer on the wife, she began to create conflict between the parties. According to the husband, the wife regularly denigrates and undermines him in front of the children; screams at him not to sit with her and the children during meals; insists that the husband sleep in the office; and directs him to leave a room if he enters a room where she and the children are sitting, all of which is done in front of the children.

[46] Contrary to the wife’s rendition of her work history, the husband deposes that the wife is an esteemed lawyer. She has an L.L.M. degree and earned the Top Student Award, as well as a PhD. from the Department of Private Law at the Shahid Beheshti University, where the wife was the first female graduate in the area of private law. The wife speaks Persian (Farsi), Japanese and English fluently. The husband deposes that the wife runs a business to assist individuals with their immigration applications to Canada and advises people on how to invest in Canada. According to the husband:

a. The wife is the founder and managing partner at the Arshtat Parks Office (“APLO”) law group, specializing in Iranian business matters for companies with non-Iranian origins;

b. The wife owns Dr. Golestan & Associates, a law firm in Iran that has represented embassies and multi-national corporations;

c. The wife is the author of The Law for Business in Iran, Foreign Companies in the Law of Iran and Investing in Iran & the Law (A guide to Iranian Legislation for International Companies) (LexisNexis), which books have been translated into languages worldwide;

d. When the wife was writing her book, she spent many hours researching both in and out of the home, often working 12 hours a day. Attached as Exhibit “D” to the husband’s affidavit, sworn on July 27, 2021, is a copy of the Acknowledgement page of the wife’s most recent book, in which she wrote, among other things, “she would also like to offer her deepest gratitude to her husband Dr. Vahid Ebrahmizadeh for standing beside her throughout both her career and the writing of this book, and to her wonderful children Ro. and Ry. who encouraged her, in spite of all the time it took her away from them”; and

e. From 2008-2014, the wife was a professor at Allameh Tabatabi University, as well as the Industrial Management Institution of Iran, from 2009 to 2011.

[47] It is the husband’s position that his career took a backseat to the wife’s career and he took on a role that allowed him to have flexible work hours so he could be available to look after the children, allowing the wife to focus on her career.

[48] In response to the wife’s allegations about the husband’s work schedule and lack of involvement with the children, in terms of his parenting role during the marriage, the husband deposes as follows:

a. He was integrally involved as a parent with the children while they were growing up in Iran. He was the primary caregiver for the children while the wife pursued her legal career and looked after her international clients;

b. He took many days off work to look after Ro. He did not work on Thursdays and Fridays to be with the children. He also took off 3-4 weeks every year for the Iranian New Year; 4-5 weeks every summer; and all religious and national holidays. The wife, on the other hand, had a very busy work schedule and was often away from home;

c. The wife was pursuing a successful and lucrative law practice in Iran and was the breadwinner for the family. The wife founded the law firm Arshtat Pars Laws Office in Iran;

d. The husband was not able to be present at the birth of Ry. in the U.S. because his father was dying at the time and succumbing to his illness. During this time, the wife went to stay with her family in the U.S. and when the wife left, the husband solely looked after Ro. in Iran for 10 weeks. The wife knew and understood that the husband had to be with his father while he was critically ill and according to him, the wife was supportive of him staying in Iran. The husband’s father died shortly after Ry. was born and the husband was reunited with the wife and Ry. when they were able to return to Iran, which was just over a month after Ry. was born;

e. Although the wife and children moved to Canada in 2017, he remained extremely involved with the children. He visited with the children and wife at least two months a year in 2017, 2018 and 2019, before moving to Canada in November 2020; and

f. In addition to the husband coming to Canada, the children joined the husband during periods when he was in Iran. Specifically, the husband deposes that both children returned to Iran for the summer of 2018; the family enjoyed a trip to Mexico in the summer of 2018; Ry. travelled alone with the husband for 6 weeks in the summer of 2019; the children travelled with the husband to the U.S. in July and August 2017 and then again for 3 weeks in both January 2019 and January 2020. According to the husband, in 2018, the wife spent a number of weekends away from the family to travel with friends, leaving the children in Canada alone.

[49] The husband denies that he has ever been violent toward the wife; denies that he has behaved erratically; denies that he threatened suicide and denies speaking rudely to the wife or her parents.

[50] Specifically, the husband deposes that the wife has placed the children in the “cross-fire” of adult conflict. According to the husband, the wife showed the children the husband’s court materials after he served them on her in April 2021; she calls him names and degrades him in front of the children, including saying such things as “he is a sick man” and mocks him for seeking spousal support; and she yells at the children if they express an interest or desire in going out with the husband or seeing his family members.

[51] The wife has alleged that the husband has political influence in Iran, to support her position that he would abduct the children there. The husband denies that he has any such influence. He deposes that he is a psychiatrist, whereas the wife was a lawyer who represented government agencies in Iran, Iranian Banks, foreign embassies in Iran and large, multi-national corporations.

[52] During the hearing, the husband’s counsel played an audio recording of the wife screaming at the husband in front of the children. In the audio recording, the parties’ 16-year old daughter, Ro., can be heard sobbing uncontrollably. The husband had an official translation of the recording and the wife was screaming at Ro. saying as follows: “That dirty guy made this miserable life for us. I wish he would go to hell. May he burn in the fire of hell and die. Hopefully, he will suffer and be tortured. He did bad to me for the sake of money. I hope you’ll be buried, you bastard”.

[53] The husband submits that the wife’s conduct is having a negative impact on the children and that the children are suffering emotionally and physically as a result of the wife’s inability to control herself. Specifically, the children appear fearful and apprehensive around the husband and the husband believes it is because the children are afraid of the wife’s reaction.

[54] According to the husband, after the incident where the wife was screaming at Ro., the parties’ 8-year-old went to his bed as a result of the stress associated with this incident. According to the husband, this is one example of the wife’s inability to place the children’s needs and best interests ahead of her own needs.

[55] As a trained psychiatrist, the husband is truly concerned about the children’s mental and physical health arising from being placed in a loyalty bind. In the hope of ameliorating the situation in the home for the children, the husband asked the wife, through counsel, if she was willing to jointly retain a mental health professional to assist them with ongoing communication issues and joint parenting. The wife refused to consider this proposal or agree to this.

[56] Most concerning to the husband, is the wife’s more recent behaviour which has involved her calling the police on two occasions. According to the husband, the wife has made two calls to the police since April 2021, causing Children’s Aid to become involved with the family. On one occasion in particular, the wife and her parents encouraged the parties’ oldest daughter, Ro., to call the police. No charges were laid by the police as a result of these calls.

[57] The husband maintains that the wife has left the children in his sole care for periods of time before and after the parties’ separation, reflecting that the wife is not truly fearful that he would abduct the children. Since the separation, the husband has taken the children for hours at a time and has never tried to abscond with them. He maintains that the wife’s alleged fear that he will abduct the children is a complete fabrication,

[58] Further, the husband submits that it is the wife who has the children’s official documents in her possession, not him. The wife has complete control of the children’s Canadian passports, American passports, Iranian passports and their birth certificates. The husband has no knowledge of where these documents are located. The husband has indicated a willingness to continue the mutual non-removal order and has said he will agree to an order that he cannot unilaterally obtain a passport anywhere for the children without a court order of the wife’s written consent.

Toronto Police Record

[59] Attached as Exhibit “F” to the wife’s affidavit, sworn on August 4, 2021, was a general occurrence report arising from the domestic incident that took place on May 11, 2021. The synopsis section of the general occurrence report states as follows:

a. Ro. was the reportee. Ro. advises that she was on her computer during online school; she heard an argument between her parents…arguing over who should be bringing Ry.’s breakfast to him. …Ro. tried to get them to stop arguing, but she couldn’t deal with the intensity of the argument and called 911;

b. Ro. advised that the husband has never threatened or assaulted her or her brother;

c. The wife advised she fears for her safety because the husband can be aggressive verbally. However, no assault or threats occurred in this incident;

d. The family members on the wife’s side are concerned for their safety because of the husband’s temper. Although no acts of violence or any threats have been made by the husband; and

e. Speaking with all parties, it was determined that no criminal acts took place and no arrest or charges were laid.

(Emphasis added)

Third Party Affidavits

[60] Both parties filed affidavits from third-parties. I find that these affidavits were mostly self-serving and did not assist the court in making a determination on the issues. I will briefly summarize why this is my finding below.

[61] As stated above, I struck the affidavit of Sharareh Mofidian, sworn on July 31, 2021, filed by the wife.

[62] The wife’s father, Javad Atashi Golestan, swore an affidavit, dated July 27, 2021. This affidavit supports the wife in her submissions that the husband threatened the wife. The wife’s father’s statements include the following: he and his wife have been living with the parties and wife since October 2020 in Toronto; the wife had full responsibility for childcare and the husband worked until late night and on weekends, as a doctor; the husband did not come to the U.S. for Ry.’s birth; in September 2020, the wife and children came to visit him and his wife in California and the wife left the children with them; he had a telephone conversation with the husband in mid-October 2020 and the husband asked him to take the children to Iran. The husband told him that if Ro. refused to go to Iran that he should take Ry. When he refused to bring the children to Iran, the husband became angry at him and his wife and told him that he would come himself to take the children to Iran; he is aware that under Iranian law, the wife will have few rights and the husband would have total control of the children if he got them to Iran. In October 2020, the wife called him and his wife and told them that the husband had called her, shouted at her, threatened to ruin her life forever and take the children to Iran. It was at this time, that the wife bought airline tickets for the children to come to Toronto and asked him and his wife to bring the children back to Canada as soon as possible; He acknowledged that the husband did take Ry. to the park sometimes in the afternoon on his own; and the children are afraid of the husband. I find the wife’s father’s affidavit self-serving. It makes little sense that the husband would call the wife’s father and ask him to remove the children from the U.S. and bring them to him in Iran, especially given the wife’s date of separation, which means that the husband asked the wife’s father to do this after the parties’ separated. I give this affidavit little weight.

[63] A woman, Melissa Weir, swore an affidavit, dated July 26, 2021, in support of the wife. Her affidavit confirms that she met the wife through the children’s school, John Ross Robertson, four years ago and that on a playdate, the wife mentioned that the husband was in Iran and she and the children had moved to Canada, with the plan that the husband would later join them to live together in Canada. This affidavit does nothing to advance the wife’s claims. Ms. Weir does not identify the name of her son. She appears to be residing in Barrie, Ontario. Her knowledge of the wife and/or her parenting role is limited and, as a result, I give it little to no weight.

[64] Ro.’s Grade 8 homeroom teacher from Glenview Senior Public School, Nasim Noobar, swore an affidavit, on July 26, 2021, filed by the wife. She was Ro.’s teacher in 2018/2019. In this affidavit she stated that she had met the wife and not the husband; that the wife participated in their meetings and was always eager to know about her daughter’s progress. On July 30, 2001, Ms. Noobar, swore a second affidavit, clarifying the content of her July 26^th, 2021 affidavit. This second affidavit was filed by the husband, not the wife. In this second affidavit, Ms. Noobar confirmed that her only interaction with the wife was a single 10-15 parent-teacher interview with the mother; she had no further meetings, discussions, e-mails, texts or communication with the wife; and that she was not remotely suggesting in her affidavit sworn on July 26, 2021 that the husband was not involved in Ro.’s education or achievements. These two affidavits are inconsistent. They do nothing to advance either party’s claims and I give both affidavits no weight.

[65] Similarly, Ry.’s JK/SK teacher at John Ross Robertson, swore an affidavit on July 26, 2021, which was filed by the wife. The affidavit simply confirmed that the deponent, Zbia Amandar was Ry.’s kindergarten teacher in 2017-2018 and 2018-2019; the wife was the parent who took Ry. to and from school, as did his sister, Ro.; and that she met the husband 3-4 times during these two years when he was visiting Canada. Again, this affidavit does nothing to advance the wife’s claims. I give it little weight.

[66] The husband also filed third-party affidavits. As with the wife, most of these affidavits do very little to advance the claims of the husband.

[67] The husband filed an affidavit from Neda Zare, sworn on June 4, 2021. Ms. Zare is the Head Coach of the Taekwando National Girls’ Team in Iran. In her affidavit, she deposes that Ro. attended Taekwando from 2014 to 2016; that her training was encouraged by the husband; that she observed the husband to be primarily the parent who accompanied Ro. to her weekly practices and was the parent who attended the competitions with her. This affidavit confirms that the husband transported Ro. to her Taekwando lessons when the parties lived in Iran. It does not, however, assist the court in terms of clarifying the respective parenting roles.

[68] The husband filed an affidavit of Soudabeh Tonkaboni, sworn on June 3, 2021. Ms. Tonkaboni is the elementary school principal of the Manzoumeh Kherad Institute, where Ro. was a student. She deposes that the husband was chosen as a member of the school’s Parent Teacher Association in October 2011 and later became the Head of the Association; the husband planned programs for parents aimed at strengthening the bonds between daughters and fathers; he spoke to parents and teachers about supporting children’s mental health and developments; and he took Ro. to school. This affidavit is somewhat helpful to the court in that it identifies that the husband was involved in Ro.’s schooling and supports the husband’s rendition of the involved parenting role he played since it verified that he took on the responsibility of heading the Parent Association and demonstrates that he was interested and engaged in the parent community 4-5 years ago when the parties were in Iran. The wife deposes that she does not know how the husband procured this affidavit, but she submits it is not true. She also submits that the husband spoke to the parents and teachers about mental health as a way to market his psychiatry practice. If the husband were truly working nights and weekends, as suggested by the wife and her father, it would not follow that he also took on the volunteer role in the Parents Association and came to speak to the school community about mental health.

Analysis

Issue # 1 – Have either of the parents committed family violence?

[69] Section 2 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) defines “family violence” as “any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct”.

[70] The wife submits that the husband’s behaviour since November 2020 constitutes family violence. The husband submits that the wife has been negatively impacting the children by exposing them to parental conflict and by specifically placing the children in the middle of the parental dispute.

[71] I find that on the written record before me, that I cannot conclude that either parent committed family violence.

Issue #2 – What parenting time order is in the children’s Best Interests?

[72] The only consideration the court is to consider in making a parenting order is the best interests of the children: s.16(1) of the Divorce Act. Section 16(2) of the Divorce Act directs the court in considering best interests to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[73] The best interests factors are set out in s.16(3) of the Divorce Act, which provides as follows:

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(a) Threat of Abduction to Iran

[74] I find that the wife’s concern that the husband is planning on abducting the children to Iran is unfounded for the following reasons:

a. The husband visited the wife and children between 2017 and November 2020, when he came to Canada and there was not a single occasion when he suggested that the children return to Iran with him.

b. Ry. was in the sole care of the husband for close to 6 weeks in the summer of 2019 in Iran. If the husband had plans to abduct the children and take them to Iran, he could have easily kept Ry. in Iran. He did not.

c. According to the wife, the parties separated in March 2020. The husband demonstrated an intention for the children to stay in Canada by purchasing the matrimonial home in August 2020, five months after the parties had separated, according to the wife. If he truly was interested in abducting the children and take them to Iran, he would not have purchased a home in Canada.

d. If the wife were truly concerned about the husband abducting the children, then it makes no sense that she decided to purchase a home with him in August 2020, move into that home with him in September 2020, and continue to live together, until the husband brought a motion for the sale of the home.

e. When the wife issued her Application in February 2021, she did not raise any concerns about the husband abducting the children. She did not seek a non-removal order. Further, the wife did not commence the proceeding by bringing an urgent motion or a motion, without notice, to the husband. Rather, it is the wife who sought to relocate with the children and to dispense with the husband’s consent to her doing so.

f. The wife deposes that the husband began to threaten her parents and her in the summer of 2020, that he planned to take the children to Iran. Further the wife’s father deposes that he and his wife were so concerned about the husband trying to abscond with the children to Iran that they took the children to Canada and did not return to the United States in October 2020. There is no dispute that the husband arrived in Canada on November 20, 2020. If the wife and her parents were concerned that the husband would come to Canada and try and abduct the children and take them to Iran, one would have thought the wife would have issued an Application in November 2020 and/or bring an urgent motion before the Court to prevent the abduction. She did not do so. Instead, the wife waited three months to issue an Application and when she did, she failed to seek any relief indicating that she had any abduction concerns.

g. Even if the wife developed these concerns about the husband abducting the children after she issued her Application in February 2021, she could have brought an urgent motion seeking a non-removal order once her concerns were raised. She did not do so. It was the husband, not the wife, who requested a non-removal order in his Answer/Claim on April 23, 2021. Further, it was the husband who sought an urgent case conference date.

h. From November 2020 onward, the husband spent periods of time with the children alone, without the wife or her parents present. This is acknowledged in the wife’s father’s affidavit, wherein he acknowledges that the husband took Ry. to the park alone after school. There has not been a single occasion since the husband arrived in Canada that he has taken any steps, whatsoever, to take the children away from the wife or travel with them. If the wife were concerned that the husband was going to abduct the children and take them to Iran, she did not seem to be concerned that the husband spend time with Ry. alone.

i. The parties agreed to a mutual non-removal order at the case conference on May 26, 2021, after which the wife attempted to relax the language of the order to enable her to travel with Ro. to the United States. It does not follow that the wife would seek to relax the language of the non-removal order if she truly had concerns that the husband was going to abduct the children and take them to Iran. Further, it does not make sense that the husband would consent to a non-removal order if he had plans to abduct the children to Iran.

j. The husband has never attempted to breach the non-removal order.

k. The husband does not have possession or knowledge of the whereabouts of the children’s Canadian, American or Iranian passports.

l. The husband has indicated a willingness to sign any order or document to allay the wife’s alleged concern about him abducting the children to Iran. He even agreed to an order that he not unilaterally obtain a passport anywhere for the children without a court order or the wife’s written consent. If the husband were truly planning on abducting the children to Iran, he would not be willing to consent to terms of such an order; and

m. The husband has rented accommodation near to the wife’s rental, indicating that his plan is to stay in Toronto.

[75] The court has reviewed the paper written by Starr, J., which was written prior to her appointment to the Ontario Court of Justice, entitled “Preventing Parental Child Abduction – the Role of the Lawyer in Managing the Risk”, filed by the wife. While the Court does not dispute the wife’s submissions that judicial systems in Islamic societies often favour fathers, the court does not accept that there is evidence on the record that the husband, in the case at bar, has demonstrated any intention to abduct the children to Iran, or that there are any red flags concerning the Court in this regard. Having said that, given the husband’s consent to do so, the court orders that the children’s passports, Canadian, American and Islamic, be held in safekeeping by the applicant’s lawyer. Further, the Court orders that the mutual non-removal order be continued.

[76] In light of these findings, I do not conclude that the husband is a flight risk or that the wife has proven that he has plans to abduct the children to Iran. However, I am truly concerned about the wife placing the children in the middle of the parental dispute and exposing them to conflict. The evidence on the record demonstrates that the children have been exposed to conflict by the wife and her parents and that Ro. has suffered as a result. This conclusion arises from the audio recording in which Ro. can be heard sobbing and from the police occurrence report which clearly states Ro. cannot handle the parental conflict and she called the police because of parental fighting.

(b) Parenting Time Schedule

[77] It is critical that these children be removed from the parental conflict and that they receive some psychological support during this transitional time. The husband’s suggestion that the parents jointly retain a skilled professional to assist them with their communication post-separation is a step toward the parents considering the children’s best interests and needs. The fact that the wife refused to do so and was more interested in a Voice of the Children’s Report is telling.

[78] The order I am making for parenting time considers the wife’s conduct in relation to the screaming at the husband in front of the children as this conduct is, in my view, relevant to her parenting of the children: s.16(5) of the Divorce Act.

[79] Furthermore, I find that the wife does not value the husband’s time with the children or his parenting role. Even though the children have resided in the same house as the husband for the past nine months, the wife has proposed that the husband spend only 4 hours a week with the children, at a supervised access centre. It was only during oral submissions, that the wife’s counsel advised the court (and the husband, for that matter) that if the court does not consider the husband to be a flight risk, the wife would be agreeable to a parenting time schedule where the children see the husband on alternate weekends and one mid-week visit for dinner. Again, this is an extremely restrictive parenting schedule.

[80] In my view, it is extremely important that the children have as much time with each parent as is consistent with their best interests: s.16(6) of the Divorce Act. The husband’s evidence demonstrates that he is child-focused and that he has a willingness to support the development and maintenance of the children’s relationship with the wife. The wife’s evidence demonstrates, on the other hand, that she does not think the children benefit from their relationship with the father.

[81] Further, the evidence on the record confirms that both parents were involved in the care of the children during the marriage. When the marriage was intact, the wife clearly relied on the husband to assist her with childcare, as is evidenced by the Acknowledgement in her published book.

[82] It is a well-established principle that the best interests of children are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child’s physical, emotional or mental well-being (Jackson v. Jackson, 2017 ONSC 1566, at para. [59]; Pastway v. Pastway (1999), 49 R.F.L. (4^th) 375 (S.C.J); Ferreira v. Ferreira, 2015 ONSC 3602 (S.C.J.), at para. 31; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.)). If one parent does not facilitate a child’s relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child’s needs (Jackson v. Jackson, 2017 ONSC 1566, at para. [59]; and Leggatt v. Leggatt, 2015 ONSC 4502 (S.C.J.); T.E.H., at para. 442).

[83] Based on all of the evidence, I order the children to reside with the parties pursuant to a week on/week off schedule, with Fridays being the exchange day. However, I also order the children to have one overnight with the non-resident parent, on Tuesdays, from after school to Wednesday morning, when the children are to be dropped off at school.

(c) Decision-Making Authority

[84] In this case, the husband seeks to have joint decision-making authority with the wife with regard to important decisions affecting the children. According to the husband, until the husband served the wife with his Answer in April 2021, he submits the parties made joint decisions about the children without difficulty. The wife denies this and submits that the husband is very controlling. However, the wife does not provide any examples with specificity about the husband’s controlling behaviour. The wife simply makes sweeping statements that she was the primary caregiver and as such, she ought to have sole decision-making authority. Although the wife deposes that the parties did not co-operate in terms of parenting, the husband’s evidence was far more detailed about their parenting roles.

[85] I have concerns about the wife’s inability to respect the husband’s parenting role. I also have serious concerns about the wife belittling and demeaning the husband in the presence of the children. A parenting time order that does not give the children significant time with each parent would, in my view, create a scenario where the children could be influenced not to spend time with the husband. Of the two parents, the husband respects the wife’s parenting role and indicates a willingness to promote and foster the children having meaningful relationships with both parents. The wife, on the other hand, has demonstrated conduct that could be seen as alienating.

[86] The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of an order that the parties share decision-making authority of children. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Jackson, at para. 65; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA), at para. 11; Ladisa v. Ladisa, 2005 CanLII 1627 (ONSC)). The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question for the court to determine is “whether a reasonable measure of communication and co-operation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 CanLII 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).

[87] Although some measure of communication and co-operation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 CanLII 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the co-operation needed is workable, not blissful; adequate, not perfect.”

[88] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of co-operation and communication (Lawson v. Lawson, 2006 CanLII 26574 (ON CA); Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.), aff’d 2006 CanLII 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)).

[89] Again, the husband’s evidence is that the parties historically were able to make decisions about the children together. The wife gave little evidence about this in her material. In all of the circumstances, I find that the parties shall have temporary joint decision-making authority relating to major decisions affecting the children until further court order or agreement of the parties. If a dispute arises in connection with a major decision and the parties cannot agree, either shall be free to bring a motion before the court for assistance.

[90] I agree with the wife that the wishes of the children are relevant to the decision respecting the appropriate parenting order, particularly in cases involving older children, such as Ro.. Although a child’s wishes in such circumstances do not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).

[91] In addition to the children’s views and preferences, in light of the divergent evidence regarding the parenting roles, the Court will request the involvement of the Office of the Children’s Lawyer, indicating that in these circumstances a s.112 parenting assessment would be helpful for the Court.

[92] The husband has proposed that the wife be required to take a parenting course to understand the impact of exposing the children to parental conflict. Similarly, he has proposed that the parties jointly retain a mental health professional to assist them with co-parenting. The wife’s material indicates a willingness on her part to do so, provided the children’s wishes and preferences are ascertained. In these circumstances, as a term and condition to the parenting orders I am making, I am ordering that the parties engage in parenting mediation and/or therapy with a skilled professional to assist them with co-parenting and communication pending further court order.

Release of Matrimonial Home Proceeds

[93] The husband seeks an order that the sum of $100,000 be released from the net sale proceeds, which are to be held in trust by the real estate lawyer, upon the closing of the matrimonial home sale transaction. He submits that he requires these funds to purchase accommodation for himself and the children.

[94] The husband deposes that the wife removed hundreds of thousands of dollars from his bank accounts (including the Bank of America) and was able to pay first and last month’s rent in the sum of $10,000; signed a lease where she has committed to paying rent of $5,000 a month and voluntary paid $21,000 toward the rent. The wife does not deny that she removed hundreds of thousands of dollars from the husband’s bank accounts but deposes that the husband’s conduct required her to do so.

[95] Neither party filed updated financial statements with their motion material. There is a lack of evidence before me as to what prejudice the wife may suffer if proceeds of sale are released to the husband. Further, I do not have sufficient evidence before me as the current savings and savings plans in each party’s name to determine whether either party has sufficient capital on which he/she can live for a temporary period of time.

[96] Accordingly, I decline to order a release of the matrimonial home proceeds at this time without prejudice to the husband. The husband is not precluded from returning his motion on a more fulsome record to enable him to obtain a release of the matrimonial home proceeds.

Conclusion

[97] Accordingly, in view of the above, this Court makes the following order on a temporary basis:

a. Subject to b. below, pursuant to s.16.1 of the Divorce Act, the children of the marriage, namely, Ro. Ebrahimzadeh, born July 30, 2005 and Ry. Ebrahimzadeh, born July 30, 2013 (“the children”), shall have parenting time with the parents on a week on/week off basis, commencing on either a) the first Friday following both parent’s move from the matrimonial home or b) on Friday, September 24, 2021, being the first Friday following the closing of the sale of the matrimonial home, whichever event comes first. The exchange day shall be on Friday, after school (or at 3:30 p.m. if Friday is a P.A. Day or a holiday), with the children being in the care of the Respondent for the first week and with the Applicant the second week, alternating weekly thereafter.

b. Pursuant to s.16.1 of the Divorce Act, in addition to the parenting time schedule referred to in a. above, the children will have parenting time with the non-resident parent on Tuesdays, after school at 3:30 pm. to Wednesday morning, when they will be dropped at school. By way of example, if the children are with the Respondent for Week One, they shall spend Tuesday, after school to Wednesday morning with the Applicant and vice versa in Week Two.

c. Pursuant to s.16.1 of the Divorce Act, the resident parent shall be responsible for picking up the children at their respective schools or the other parent’s residence if it is a non-school day, or the children are participating in virtual learning.

d. Pursuant to s.16.1(4)(d) of the Divorce Act, the children shall return to their respective schools for the 2021-2022 academic year, being John Ross Robertson for Ry. and Lawrence Park Collegiate for Ro.

e. Pursuant to s.16.1(4)(d) of the Divorce Act, both parties shall actively facilitate the other’s parenting time, which shall include but not be limited to assisting with packing, providing sufficient time for the children to get ready prior to exchange (especially if the exchange falls on a non-school or virtual learning day), promoting the access transition, and requiring the Children to go to the non-resident parent’s residence.

f. Pursuant to s.16.3 of the Divorce Act, the parties shall make important decisions regarding the children together, including but not limited to decisions about the children’s:

i. welfare;

ii. education (including school choice and special programs);

iii. religion;

iv. mobility and travel;

v. non-emergency healthcare; and

vi. recreational activities.

g. Pursuant to s.16.4 of the Divorce Act, there shall be full disclosure between the parties on all matters affecting the children, which shall include but not be limited to the issues set out in subparagraph f. above.

h. Pursuant to s.16.3 of the Divorce Act, if an impasse is reached with respect to important decisions regarding the children, the matter(s) in dispute shall be returned to court for determination of the issue(s) or to another agreed upon form of alternative dispute resolution.

i. Pursuant to s.16.2(2) of the Divorce Act, the resident parent at the relevant time shall make the daily decisions affecting the children’s welfare.

j. Pursuant to s.16.2(2) of the Divorce Act, if either of the children needs emergency medical care while with the resident parent, the non-resident parent shall be immediately notified of the emergency.

k. Pursuant to s.16.4 of the Divorce Act, each party shall be entitled to obtain information about the children from third parties and to make inquiries to third parties, including from the children’s teachers, school officials, doctors, dentists, healthcare providers, counsellors, extracurricular officiators and others involved with the children [and, if necessary, each party shall execute any necessary documentation to ensure that this right to make inquiries and obtain information from third parties is not thwarted or delayed].

l. Pursuant to s.16.1(4)(d) of the Divorce Act, neither parent shall denigrate the other in front of the children or while the children are in his/her care to any other person.

m. Pursuant to s.16.1(4)(d) of the Divorce Act, the parties shall engage/retain a qualified mental health professional who is skilled in the area of co-parenting after separation to assist them in communicating and co-parenting. Guidance about appropriate communication, exposing the children to conflict and consistent household routines are some of the topics that shall be addressed in this process.

n. Pursuant to s.16.1(4)(d) of the Divorce Act, the parties shall each establish an Our Family Wizard (“OFW”) account and enroll in the program within seven days. After registration, the parties shall immediately begin to utilize their OFW accounts via the website at OurFamilyWizard.com or via the OFW mobile applications for iOS or Android.

o. Pursuant to s.16.1(4)(d) of the Divorce Act, the parties shall post all communication exclusively on OFW. The parties shall only be permitted to communicate by telephone or text message in cases of emergency regarding the children that must be acted upon in less than 24 hours.

p. The Court shall request the involvement of the Office of the Children’s Lawyer and a separate endorsement shall follow.

q. Pursuant to s.16.1of the Divorce Act, each party shall be prohibited from:

i. removing the children from Ontario without the written consent of the other party; and

ii. apply for authorization for the children to travel to another country without the other party’s written consent;

r. Pursuant to s.16.1(4)(d) of the Divorce Act, the Applicant shall surrender the original copies of the children’s Canadian passports, American passports and Iranian passports, along with the children’s birth certificates to her counsel, James Herbert, of Chappel, Partners LLP. Mr. Herbert shall retain the children’s official documents in the safe in his office until further court order or agreement of the parties.

s. If a party seeks costs of this long motion, if the parties cannot resolve the costs issue on consent, then a party seeking costs shall serve and file written submissions that are no longer three pages (plus a Bill of Costs and copies of any dockets or disbursements) and any relevant Offers to Settle by August 31, 2021, and the other party shall serve and file any written responding submissions (in similar form as the submission seeking costs) and a copy of any relevant Offer to Settle, filed within five days of receipt of a party’s submission for costs. Reply submissions, if any, shall be no more than 2 pages and served and filed within 3 days of receipt of responding submissions.

M. Kraft, J.

Released: August 17, 2021

COURT FILE NO: FS-21-21679

DATE: 20210817

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marjan Atashi Golestan

Applicant

– and –

Vahid Ebrahimzadeh

Respondent

REASONS FOR JUDGMENT

Kraft, J.

Released: August 17, 2021

[^1]: The wife’s motion material included her Notice of Motion, dated August 4, 2021; her affidavit, sworn on July 27, 2021; her Form 35.1 affidavit, sworn on July 27, 2021; her reply affidavit, sworn on August 4, 2021; the affidavit of Javad Atashi Golestan, sworn on July 27, 2021; the affidavit of Melissa Weir, sworn on July 26, 2021; the affidavit of Nasim Meghrazi Noobar, sworn on July 26, 2021; the affidavit of Zibar Amandar, sworn on July 27, 2021; the affidavit of Sharareh Mofidian, sworn on July 31, 2021; and her Factum, dated July 20, 2021.

[^2]: The husband’s motion material included his Notice of Motion, dated July 29, 2021; his affidavit, sworn on July 27, 2021; his Form 35.1 affidavit, sworn on July 30, 2021; his supplementary affidavit, sworn on July 30, 2021; his reply affidavit, sworn on August 4, 2021; the affidavit of Neda Zare, sworn on June 4, 2021; the affidavit of Nasim Meghrazi Noobar, sworn on July 30, 2021; the affidavit of Soudabeh Tonkaboni, sworn on June 3, 2021; his financial statement, sworn on May 31, 2021; his affidavit, sworn on July 30, 2021, updating his last financial statement; his Factum, dated July 30, 2021; and his amended Factum, dated August 4, 2021.