Raha Mehralian v. Michael Dunmore
Court File No.: FS-21-24032 Date: 2022-11-22 Superior Court of Justice - Ontario
Re: Raha Mehralian And: Michael Dunmore
Before: Justice Papageorgiou
Counsel: Paula L. Bateman, for the Applicant Michael Stangarone, for the Respondent
Endorsement
[1] Raha Mehralian (“Raha”), who is a permanent Canadian resident, and Michael Dunmore (“Michael”), who is a Canadian citizen, are married, and M.R.D., who is Canadian citizen, is the child of their marriage. Pursuant to s. 40 of the Children’s Law Reform Act,[^1] Michael asserts that M.R.D. should be sent to Oman, which is not a Hague signatory state.
[2] Before the court are motions to determine this court’s jurisdiction with respect to M.R.D. For the reasons set out in my October 14, 2022 endorsement I directed a trial of an issue to determine this jurisdictional issue and several related and ancillary matters. In that endorsement I requested submissions within 30 days as to whether the OCL should be appointed to represent M.R.D.
[3] The matter was subsequently scheduled for trial commencing November 28, 2022 by the case management judge prior to the receipt of submissions from the parties which were received on or about November 14, 2022.
[4] Raha submits that she is self-represented and cannot afford a lawyer. She requests that the OCL be appointed to represent M.R.D.
[5] Michael opposes this on the basis that this is a matter of urgency and on the basis that the trial is already scheduled to commence.
[6] With respect to the issue of urgency, the contested facts as to Raha allegedly overholding M.R.D. in Canada occurred in April 2021. Michael did not schedule a motion to seek this relief until November 2021, which motion he agreed was to occur on May 24, 2022.
[7] On March 4, 2022, Justice Faieta established a timetable for the delivery of materials which involved Michael serving his materials on March 4, 2022, Raha serving responding material by March 14, 2022 and Michael serving reply material by March 17, 2022. He also ordered cross examination on these materials to occur on March 18, 2022.
[8] On March 23, 2022, Justice Nakonechny adjourned the long motion to May 31, 2022 before her, if she was available.
[9] The parties uploaded materials to Caselines which consisted of over 4000 pages of material including the following:
Applicant’s Materials:
Affidavit of Raha Mehralian dated March 14, 2022;
Affidavit of Abdul Redha Al Lawati dated March 10, 2022 (expert)
Affidavit of Ali Al Rashid dated April 14, 2022 (expert);
Affidavit of Ali Al Rashid dated May 8, 2022 (expert);
All of the material filed in the Omani court including the Respondent’s first instance materials, the Applicant’s first instance materials, as well as the court of appeal materials filed by both in Oman;
Respondent’s Materials:
Affidavit of A. Carlon dated February 15, 2022 (expert);
Affidavit of D. Hamade dated March 1, 2022 (expert)
Affidavit of Trevor Andrew John Hayes dated March 3, 2022 (the Respondent’s brother-in-law)
Affidavit of Michael Dunsmore sworn March 4, 2022
Affidavit of Paul Douglas Dunsmore dated March 4, 2022 (the Respondent’s father)
Affidavit of Michael Dunsmore dated March 8, 2022
Affidavit and expert opinion of Abdul Redha Al Lawati dated March 10, 2022 (expert)
Affidavit of Farrah Hudani dated March 11, 2022 (expert)
Affidavit of Michael Dunsmore dated March 17, 2022;
Affidavit of Abdul Redha Lawati dated March 17, 2022 (expert)
Affidavit of Stephen Ellwood dated March 31, 2022 (expert jointly retained to address the issue of text messages)
Affidavit of Al Lawati dated April 28, 2022 (expert)
[10] Over 20,000 messages were recovered by the jointly retained expert, and the parties have excerpted texts which they determined were relevant with some certified translations and some translations which are not certified but interpreted by Raha.
[11] Based upon the endorsements, it does not appear that the parties ever advised the judges scheduling this matter of its complexity, the credibility issues or the volume of materials. The only Order made permitting evidence to be filed (apart from the technology expert) was Justice Faieta’s Order dated March 4 which contemplated one set of materials from Michael, one set from Raha and one reply by Michael. There is no mention of any expert reports in any of the endorsements (apart from the technology expert) let alone the fact that there would ultimately be 8 expert reports which conflict in many material ways. There is no mention of any permission given to the parties to file materials after March 17, 2022 which they have also done. As well, the timing set out in Justice Faieta’s endorsement, which provides for materials to be served all within a two week period, suggests that he understood the proposed materials to not be complex.
[12] I concluded that the sheer volume and nature of the of materials made this matter an inappropriate matter to bring as a motion (even a long one). Even if this case could be resolved in this way, there are material credibility issues which cannot be fairly and justly determined on this record.
[13] While urgency is always in issue in these cases, Michael has not proceeded with this matter as though it were urgent. He pursued this matter in such a way that almost a year would go by before the initial hearing date. As well, the responsibility for some of this delay rests with him as he prepared materials outside the scope of the court endorsements which then necessitated this matter being sent to a trial of an issue. Had he turned his mind to the complexity of the materials which he would be filing, this matter could have been scheduled for a trial in the first place.
[14] As such, I am not persuaded that delay or urgency is a strong factor in considering whether or not I should seek the appointment of the OCL to represent M.R.D.
[15] As set out in my October 14, 2022 endorsement, Raha has relied upon section 22(1)(b) of the Childrens Law Reform Act which engages the best interests of the child. As well, section 40 of the Childrens Law Reform Act is discretionary and may also engage M.R.D.’s best interests.
[16] If M.R.D. is sent to Oman, there is a potential for an involuntary separation of M.R.D. from Raha because she does not have residency in Oman. The evidence strongly suggests she is the primary caregiver.
[17] I note that in N v. F., 2021 ONCA, leave to appeal to the SCC was granted, in part, with respect to whether the trial judge made an error because he failed to properly assess the harm of a potential involuntary separation of the children from their primary caregiver. N v. F was heard in or around the end of March 2022 and the SCC has not yet released its decision.
[18] Requesting the assistance of the OCL will likely only result in a delay of a few more months but it will greatly assist this Court in its consideration of this matter to ensure that M.R.D.’s best interests are advanced, and so that no harm will come to him.
[19] In my view, any additional delay does not trump the need for this Court to be able to properly assess the best interests of M.R.D.
[20] Therefore, the trial scheduled for November 28, 2022 must be adjourned to a date to be scheduled once the OCL has provided its decision as to whether it will represent M.R.D.
[21] I remain seized of this matter.
Papageorgiou J.
Date: November 22, 2022
Schedule “A”
The relevant provisions in the CLRA provide as follows:
Jurisdiction
22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. 2020, c. 25, Sched. 1, s. 6.
Habitual residence
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
With a person other than a parent on a permanent basis for a significant period of time. 2020, c. 25, Sched. 1, s. 6.
Abduction
(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. 2020, c. 25, Sched. 1, s. 6.
Serious harm to child
23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario. 2020, c. 25, Sched. 1, s. 6.
[^1]: S.O. 2020, c. 25.