Moghimi v. Moodi, 2023 ONSC 2568

Nafiseh Moghimi v. Mojtaba Moodi

Court File No.: FC-18-FS827 Date: 2023-04-27 Ontario Superior Court of Justice

Between: Nafiseh Moghimi, Applicant – and – Mojtaba Moodi, Respondent

Counsel: Heather R. Caron, for the Applicant Richard Van Buskirk, for the Respondent

Heard: November 23, 24, 25, 29, 2022, December 1, 2, 2022, January 16, 17, 18, 19, 2023, and February 7, 2023

Before: The Honourable Justice M.J. Valente

Reasons for Judgement

Overview

1The issues in this lawsuit are claims for divorce, decision-making, parenting time, the enforceability of a marriage contract, division of property and child support, including retroactive child support.

2The parties were married in Iran have two children.

3Prior to trial, the parties settled the issue of child support for the two children of their marriage, Daniel (born December 16, 2013) and Dina (born August 15, 2016) in accordance with the Federal Child Support Guidelines, SOR/97-175, as amended (‘the Federal Guidelines’) in the amount of $1,716 per month to commence as of July 1, 2022. I have made a final order in this respect along with a corresponding support deduction order on the condition that the applicant takes immediate steps to rescind the support order, dated May 19, 2019, issued in case number 9709983023 401514 by Justice Administration of Alborz Province, Chamber 8 Disputes Settlement Council (former 105) – Complex number 1, Shahid Beheshti (‘the Iranian Support Order’), discussed later in my Reasons for Judgement.

4During the course of this trial, the parties also resolved the matter of their divorce whereby on consent, I issued an order severing the divorce application from the corollary relief claimed and granted a Divorce Order.

5The applicant also sought an agreement from the respondent to co-operate in obtaining a divorce from an Iranian court of competent jurisdiction for reasons also discussed later in this Judgement. During the course of trial, the respondent agreed to take all necessary steps to obtain an Iranian divorce within 14 days of receipt of written confirmation that the applicant has withdrawn all outstanding claims before the Iranian courts and rescinded all issued Iranian court orders. The applicant agreed to this condition. On the basis of Justice Tuth’s decision in Kariminia v. Nasser, 2018 BCSC 695, I am satisfied that I have the jurisdiction to grant the parties’ consent order respecting the Iranian divorce and my order reflects it.

6All other issues remain in dispute and are to be decided by this court.

7The applicant’s position is that there has been no material change in circumstances since the order of Justice Casper, dated October 31, 2018 (the ‘October 31, 2018 Order’), was issued pursuant to the Child, Youth and Family Services Act, 2017 S.O. 2017, C. 14 (‘CYFSA’) and the respondent’s supervised parenting time should continue. She also asserts that the parties’ contract for maher is an enforceable marriage contract but, in the event that it is not, she is entitled to an unequal decision of the net family property. Finally, the applicant urges the court to impute income to the respondent from the date of separation until he was employed on a full-time basis in July 2022 for the purposes of calculating retroactive child support.

8For his part, the respondent submits that he should be granted decision-making responsibility and, in any event, given the passage of time, he is entitled to unsupervised parenting time on a graduated increased basis. It is his position the contract for maher falls short of the marriage contact requirements of the Family Law Act, R.S.O. 1990 c.F.3 (the ‘Family Law Act’) and there is no reason to deviate from the usual equal decision of net family property. Likewise, the respondent asserts that there is no factual basis to impute unearned income to him.

Summary of Background Facts

9The applicant is currently 42 years of age, and the respondent is 38. They were married in Iran on November 8, 2011. The agreed date of separation is March 1, 2018. The applicant left Iran in 2009 to pursue her PhD degree at the University of Waterloo which she subsequently earned. The respondent did not join the applicant in Canada until May 2019 after having completed his compulsory military service in Iran. The respondent also attended the University of Waterloo from which he graduated with a Masters of Science degree in software engineering in June 2016. The respondent was granted permanent Canadian resident status because of his marriage to the applicant. Both the applicant and respondent are dual citizens of Canada and Iran as are their children, Daniel aged 9, and Dina, aged 6.

10Apart from an extended stay in Iran from September 2017 to February 2018, the applicant has lived in Waterloo since marriage. The applicant is the primary caregiver for the children. The respondent, on the other hand, lived in Iran since marriage with his parents in their family home from November 2017 to July 2019 and returned again to his country of birth in June 2021 on the occasion of his father’s passing. The respondent returned to Canada in October 2021.

11Whereas the applicant has worked full time since shortly after her return to Canada in March 2018, the respondent’s evidence is that he did not work from the fall of 2017 to March 2022. The applicant is currently employed by the University of Waterloo where she is engaged in post doctorate research work on a contract basis. Her reported gross annual income is $60,349.00. The respondent found work for the short period of two months in March 2022 with the Montreal based software developer, HiveStack Inc. After being terminated from that position, in July of the same year he found full time employment with EAB Global. He is currently working with this employer and earns an annual gross salary of $120,000.00 as a software developer.

12The parties purchased the matrimonial home located at 72 Underhill Crescent, Kitchener (the ‘Underhill Property’) as joint tenants on March 2, 2017, for $471,000 and encumbered the property with a first charge in the original principal amount of $431,104. As of October 28, 2022, the amount of the first charge stood at $369,772.09. To the exclusion of the respondent, the applicant has lived in the Underhill Property together with the children since their return from Iran in March 2018. There is no order for exclusive possession in the applicant’s favour. Since the parties’ separation date of March 1, 2018, the applicant has been primarily responsible for the costs associated with the Underhill Property. The matrimonial home is a three-bedroom split-level single-family dwelling with a pool in the back garden and is located in a residential neighborhood.

13The respondent currently lives in a rented two bedroom accommodation which he shares with his brother who has recently joined the respondent from Iran.

14The testimony of both of the parties confirm that the children are well adjusted and happy. Neither of them currently has emotional, social or academic issues. They are both involved in variety of after-school organized activities and have informal play dates with friends. Although the children live in Kitchener, they are enrolled in a school in the neighboring city of Waterloo, close to the applicant’s place of employment where the applicant has a close support network of friends.

15Pursuant to the October 31, 2018 Order, the applicant was granted sole custody of Daniel and Dina pursuant to s. 102 of the CYFSA. This Order stipulates that in addition to Skype access, access is otherwise to be determined by the applicant. In March 2020 the applicant agreed to the respondent having supervised parenting time with the two children bi-weekly at Child & Parent Place in Cambridge. The agreement is memorialized in the order of Justice Breithaupt Smith, dated March 2, 2020 (the ‘March 2, 2020 Order’). Apart from his extended stay in Iran in 2021, the respondent has diligently respected the supervised parenting-time schedule at Child & Parent Place.

The Parties

16The applicant testified that her family is very liberal according to Iranian standards. Not only did her parents encourage her to be socially active but they stressed the importance of a university education. The applicant left Iran in 2009 because of her perception of that country’s oppressive environment for its citizens, and in particular, women. Under no circumstances did the applicant want to raise a family in Iran. Although the applicant is both fearful and distrustful of the respondent for reasons discussed below, she is able to control her feelings and emotions for the most part with respect to matters involving the respondent and view them from a rational lense.

17For his part, the respondent is “proud of being Iranian” and sees the world from a traditional perspective. On one hand, the respondent has a tremendous love and admiration for his family, and most noticeably his deceased father. On the other hand, he is full of anger and a sense of betrayal by reason that the applicant allegedly did not tell him that she had been previously divorced. The respondent maintains these feelings notwithstanding the parties’ Iranian marriage certificate records the applicant’s earlier divorce. The respondent readily admits to having objected to Dina, as a toddler, being dressed on a summer’s day in a tank top and underwear for their skype visits. He explained that he does not know what children do in Canada, but he “did not want her exposed”. In cross-examination the respondent avoided a direct response to the suggestion that he was of the view that he could beat his wife and children in any way he pleased. Instead, he replied that he has never disobeyed the law. The respondent’s disgust for the applicant and “her way of living” is palpable albeit unexplained. He describes the decision to marry the applicant as his “bad choice” and the children’s misfortunate that the applicant is their mother.

The Applicant’s Allegation of Abuse

18The respondent testified that the parties’ marriage began to have difficulties soon after Daniel’s birth in 2014 when he independently discovered the applicant’s prior marriage by accessing documents on her computer. As for the applicant, it is her position that their relationship was strained within months of the respondent arriving in Canada. Specifically, the applicant described several incidents of physical and emotional abuse in her testimony. Some of those incidents to which the applicant testified are described below:

(i) In October 2012, while travelling in their vehicle and in the heat of an argument, the respondent grabbed the applicant by the neck, strangled her and pushed her head in a downward direction towards his legs. A bystander reported the incident to the police who investigated the matter. The applicant, however, acceded to the respondent’s request to deny to the police that the incident had occurred.

(ii) In November 2014, and again mid argument, the respondent pushed the applicant into a wall and held her there while strangling her. Following this assault, the police investigated the matter, Waterloo Family and Children’s Services (‘FACS’) become involved, and the respondent attended anger management therapy.

(iii) In March 2016 while on a visit to Iran the respondent punched the pregnant applicant, dislocated her left arm and told her she “deserved it” because she was not a good wife presumably because she was not at their previously agreed location when he arrived to drive her to a doctor’s appointment. A photograph of the applicant’s left arm documents the injury.

(iv) In April 2017, as the parties and the children were driving to a dinner party, the respondent objected to the applicant’s partially unbuttoned coat that revealed part of her chest. When the applicant did not immediately respond in a manner that the respondent deemed appropriate, he grabbed her face with his hand and forcibly brought it to his face while shouting at her.

(v) In January 2018, while in Iran and the parties were living separately with their respective parents, and during the course of argument in the basement of the respondent’s parents’ home, the respondent strangled the applicant and punched her in the face. The applicant reported this assault to the local police who photographed the applicant as a part of their investigation. An injury to the applicant’s left eye is apparent from a photograph. Criminal proceedings were commenced against the respondent but dismissed because of the applicant’s decision not to pursue matters.

(vi) On several occasions prior to their March 1, 2018 separation, the respondent threatened to burn the applicant alive, to bury her alive and to kill the children should she leave him. The respondent also often reminded the applicant that “whatever I have done, you deserve it”. (The above noted incidents of abuse hereafter referred to as the ‘Abuse Allegations’).

19The respondent denies the Abuse Allegations in their entirety and relies in support of his position on the fact that he has never been convicted of an offence nor charged criminally in Canada. The respondent specifically recalls the October 2012 incident when a by-stander called the police. He testified that although the applicant was “disrespecting my father” and slapped his face during the course of the argument, he merely held her hand to prevent the applicant from further assaulting him. The respondent also specifically denies grabbing the applicant by the face in April 2017 because “there are many other places to grab a person”. Finally, the respondent argues that the lack of reliable physical evidence of abuse speaks for itself particularly because as he explains “I have a heavy hand and if I hit someone, there will be a mark”.

20The acceptance or rejection of the Abuse Allegations is a matter of credibility. I have little difficulty in finding the applicant to be more credible than the respondent in this respect. She testified in a straightforward, detailed manner and was not shaken on cross examination. For his past, apart from a general denial, the respondent was evasive on cross examination and attempted to focus the dialogue on other matters. Additionally, the respondent did not deny that FACS became involved with the family in December 2014 because of martial stress and at the same time had no explanation as to why a third party might call the police to investigate his face being slapped by the applicant. He also did not offer any alternative explanation for the photographs that depict bruising on the applicant’s arm and face. In the circumstances, I conclude that they were the result of the respondent’s “heavy hand”. In the end, on the balance of probabilities, I accept that the applicant was the subject of the Abuse Allegations. As at the date of trial, the applicant remained fearful of the respondent, almost five years after their separation.

The September 2017 Trip to Iran

21At some point in 2017, the applicant decided to separate from the respondent but out of fear of his reaction, she kept her decision a secret. The applicant advised the respondent that she would take the children to Iran for a visit of some two months. The applicant and the children left for Iran at the end of September 2017. When they did not return to Canada in November, the respondent travelled to Iran to join them.

22While in Iran, the parties lived together initially in the respective homes of their parents and attempted to reconcile. Within a short period of time, their relationship unraveled, and they began living separate and apart: the applicant and children with the applicant’s parents and the respondent with his parents.

23As tensions mounted between the parties, the respondent took the children’s Canadian and Iranian passports from the applicant without her knowledge. He also took the children into his care and control without the applicant’s consent. The respondent had the care and control of Daniel and Dina to the exclusion of the applicant from December 29, 2017 to either January 5, 2018, according to the respondent, or to January 9, 2018, according the applicant. It is undisputed that during this time period the applicant was permitted to visit the children only once (notwithstanding that Dina was being breast and bottle fed) and that the children were ultimately returned to the applicant because they had fallen ill. On cross-examination, the respondent admitted that the children were feverish when they were returned to their mother because he “did not have the experience to care for them”.

24The testimony of the parties differs with respect to how the children came into the respondent’s care and why he took their passports. The applicant’s explanation is simple. Her evidence is that the respondent unilaterally took both the children and their passports to prevent her from returning with the children to Canada. Her position is that the respondent abducted Daniel and Dina. The applicant’s evidence is that once the respondent had returned the children, he threatened to remove them again. Because of this threat, the applicant left her parents home with the children for a safehouse until they were able to travel to Turkey where they applied for and obtained Canadian passports with the assistance of the Canadian Embassy and FACS. The three then arrived back in Canada on March 2, 2018.

25The respondent testified as to two slightly different reasons for his removing the children into his care. Initially, his evidence was Daniel and Dina came to his parents’ home because of the applicant’s irresponsible behaviour. Specifically, he had little choice but to provide for the children because they had taken ill while the applicant was away camping and in the care of their maternal grandfather. Later in cross examination, the respondent stated that it was at the applicant’s specific request that he take the children who had fallen ill while she was away camping. The applicant denies both versions of these events.

26Likewise, the respondent proffered two different reasons for taking the children’s passports. The first reason he offered was that he did not want the applicant and children to leave Iran while he was travelling in Europe because upon his eventual return, he wanted to have “a calm and friendly discussion” with the applicant about resolving their issues. Later in his testimony, however, the respondent stated that he took the passports because he wanted to leave Iran with the children. Regardless of the respondent’s reasons, at the core was his desire to control the applicant and to prevent her from leaving Iran with the children. In an angry exchange on cross examination, he conceded this ultimate purpose. The respondent also admitted on cross-examination that he attended the local police detachment to deliver up the children’s passports so as to ensure that they did not leave Iran without him.

27Given the strained relationship between the parties and the respondent’s earlier assault of the applicant in his parents’ basement, I cannot accept that the applicant acquiesced to, consented to or asked the respondent to take the children into his exclusive care in December 2017 while in Iran. Certainly, there can be no doubt that once in his care, the respondent did not want the children to leave Iran. On cross examination, the respondent stated without hesitation “I am entitled to keep them in Iran because they are my children”, and that the applicant “kidnapped” the children to Canada. Therefore, in all the circumstances, I conclude that the respondent did abduct the children in late December 2017 and would have likely kept the children to the exclusion of the applicant had they not fallen ill.

28Although the parties disagree on much as to what transpired in Iran in late 2017 and early 2018, they are in agreement that today in Iran:

(i) absent an Iranian divorce, should the applicant return to Iran, she will not be entitled to leave;

(ii) absent an extraordinary Iranian court order, the applicant is not entitled to apply for Iranian passports for the children without the respondent’s consent;

(iii) the respondent is, however, at liberty to apply for Iranian passports for the children without the applicant’s consent and may do so through the Embassies of Pakistan and Turkey in Washington; and

(iv) until the children are 18 years of age, they are not permitted to leave Iran without the respondent’s consent.

29For purposes of my decision, I have considered each of these statements as admitted facts.

Iranian Court Proceedings

30A number of proceedings were initiated by each of the parties in the Iranian courts as a result of the September 2017 trip to Iran and the parties’ separation. I briefly summarize some of these proceedings because they are germane to the respondent’s position respecting the claim for retroactive child support discussed later in these Reasons.

A. The Applicant’s Proceedings:

i) In January 2018, the applicant commenced criminal proceedings against the respondent for his alleged assault on her in the basement of his parents’ home. The charge was dismissed because the applicant did not return to Iran to testify at the July 2018 trial.

ii) In March 2018 the applicant instituted proceedings to enforce payment of the contract of maher, the parties’ Iranian marriage contract. The commencement of these proceedings resulted in the respondent’s Iranian passport being seized upon his return to Iran from Europe in early 2018. The respondent’s Iranian passport was returned to him upon payment of the stipulated contract amount in the Canadian dollar equivalent of $7,787.53 which the respondent paid in May 2019, a few months prior to arriving back in Canada.

iii) In July 2018, the applicant brought suit to recover funds allegedly taken by the respondent from her Canadian bank account during the course of their marriage without her consent. This claim was ultimately dismissed by an Iranian appellant court in February 2019 for lack of evidence.

iv) In January 2019 the applicant commenced a petition for child and spousal support because of the respondent’s apparent decision to remain in Iran. These proceedings resulted in the Iranian Support Order issued in May 2019 that is now to be rescinded by the applicant.

B. The Respondent’s Proceedings:

i) In May 2018, the respondent instituted criminal and civil proceedings against the applicant for intentionally misleading the Iranian Court to permit her and the children to exit Iran without the permission of the respondent. A year after these proceedings were commenced, both proceedings were both dismissed.

ii) In April 2019, the respondent obtained an order permitting him parenting time with the children. The order granted the respondent parenting time with the children every Friday, although they had been living in Canada for over one year.

iii) In November 2019, the respondent commenced proceedings to require the applicant to live with him in Iran on condition that he continue to provide for her needs. If the requested order were to be granted, the applicant would not be entitled to an Iranian divorce. The respondent’s application was dismissed. (These proceedings are collectively referred to as the “Iranian Proceedings”.)

31In her absence from Iran, the applicant was assisted by her brother as proxy in the prosecution and defense of the Iranian Proceedings and was represented by legal counsel. Although the respondent admits to having local counsel to protect his interests in the Iranian Proceedings, his evidence is less than clear as to when he retained his Iranian lawyer.

Parenting Time Since the October 31, 2018 Order

32Upon the applicant’s return to Canada in early March 2018, she contacted FACS and worked with it to obtain the October 31, 2018 Order which granted her custody of the children, weekly one hour Skype access in favour of the respondent and otherwise left access to her discretion. The respondent admits he was given an opportunity to respond to the proceedings but did not because of the court filing difficulties he experienced while living in Iran. The respondent also admits that he consented via telephone in open court to the issuance of October 31, 2018 Order but on the understanding that the order could be amended upon his return to Canada. I note that the October 31, 2018 Order provides that any variation of its terms will be pursuant to the Children’s Law Reform Act, R.S.O 1990, c. C.12, as amended (“CLRA”).

33The applicant testified that upon Daniel’s return from Iran, he suffered from anxiety and required therapy. He no longer requires therapy now that an anxiety plan is in place. There were no mental health concerns for Dina upon arrival in Canada in March 2018 and there are none today. There is no evidence to suggest anything other than that both children are currently happy and developing well from a physical and emotional perspective. Although I have little doubt that the children’s early success is due in large part to the applicant’s influence, the respondent refused to acknowledge on cross examination the positive impact of the applicant on the lives of the children.

34Prior to the issuance of the October 31, 2018 Order, the respondent requested Skype time with the children from Iran and the applicant accommodated his request. To the respondent’s credit, he regularly exercised his Skype time with the children notwithstanding the significant time difference between Canada and Iran. For the most part, the Skype visits went well notwithstanding their inherit difficulties particularly with young children.

35When the respondent returned to Canada in July 2019, regular Skype visits continued but the respondent also requested in-person parenting time. Because of the applicant’s concern that the respondent may abduct the children to Iran, she was not agreeable to the unsupervised access but agreed to supervised parenting time for a minimum of two hours bi-weekly with the assistance of Child & Parent Place. This agreement is memorialized in the March 2, 2020 Order.

36Initially, however, because of prevailing COVID-19 restrictions and closures, the parties agreed supervised parenting time would take place with the assistance of the couple’s two friends from the local Persian community, Aliveza Khodalan and Hamid Hohebhi. Both of these gentlemen opened their homes to the respondent and their children four or five times so that they could have time together. These in-home visits ended when Mr. Khodalan went to Iran for an extended seven-month visit. Although Mr. Khodalan described the initial interaction between father and children as “emotional”, the relationship quickly normalized: the three interacted well as they laughed, played and ate together. Mr. Hohebhi assessed the relationship in the same positive light.

37In late December 2020, Child & Parent Place began to co-ordinate supervised virtual visits during the COVID-19 pandemic lockdown. Upon the respondent’s return to Canada from his five-month trip to Iran on the occasion of his father’s passing, he began in-person parenting time with the children at Child & Parent Place every second Saturday commencing November 21, 2021. Since the respondent’s brother, Mastafa, came to Canada in May 2022, he also attends the supervised visits.

38Based on my review of the visit observation notes recorded by Child & Parent Place, (the ‘Notes’) the respondent attended each scheduled virtual and in-person parenting time session but for three which were cancelled by the applicant due to a family vacation in Turkey and the illness of the children.

39Notwithstanding that supervised visits by their very nature are somewhat artificial, the Notes of the many visits document a loving and trusting relationship between the respondent and each of the children. They have bonded well. The respondent guides the children’s play and instructs them on how to interact properly with each other. The respondent is curious about the children’s respective interests and explores these interests with each of them. The respondent also recognizes the need for the children to play and not only encourages play but plays with each of Daniel and Dina. For their part, the children appear to be excited and joyful to spend time with the respondent, and most recently with their uncle. They do not want to leave when the parenting time sessions conclude.

40In his evidence, the respondent confirmed the Note observations with few exceptions, none of which affect my positive assessment of his relationship with the children. Apart from the respondent’s refusal to acknowledge that he caused the applicant significant emotional strain by taking the children without her consent in December 2017, his undisguised contempt for the applicant and his inflated view of his importance in the lives of the children (a personal reflection that resonated throughout the trial from such statements as: “they are here because of my decision” and “I am the best bi-weekly dad”), I am of the opinion that the respondent has matured as a parent and is a positive influence on the children. I also note that the applicant did not testify to the children having any negative reactions after spending time with their father. To her credit, the applicant did state that if Dina enjoys her time with the respondent, she is “so happy” for her daughter.

Decision–Making and Parenting Time Moving Forward

41The respondent seeks joint decision-making responsibility for the children and in the event that the parties are unable to agree on matters of healthcare and extracurricular activities, final decision-making responsibility. He also requests graduated unsupervised parenting time culminating in alternating overnight weekend parenting time as well as two weekday overnight visits. In addition, the respondent seeks an order prohibiting the applicant from moving with the children outside the Region of Waterloo without his written consent. The applicant opposes this relief on the basis that there has been no material change in circumstances since the October 31, 2018 Order. The applicant also submits that the respondent is untrustworthy because he continues to be a flight risk with the children to Iran which is not a signatory to the Hague Convention.

Analysis

42For this court to determine a request to change a decision making or parenting time order, it must embark upon the two-stage inquiry particularized by the Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. (“Gordon v. Goertz”).

43The first step requires an inquiry as to whether there has been a material change in circumstances since the last order was made. In particular, as summarized by Justice Pazaratz in F.K. v. A.K., 2020 ONSC 3726:

1. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

2. The change must materially affect the child.

3. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and if “known at the time, could likely have resulted in a different order”. L.M.L.P. v. L.S. [2011] SCC 64.

4. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing order.

5. If there is no material change in circumstances, the inquiry ends. The Court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont.C.A.).

6. If there is a material change, the Court must move to the second stage and consider the best interests of the child and whether to vary the original order.

44If the court determines that there has indeed been a material change in circumstances, the second step requires:

1. The Court to embark on a fresh inquiry into the best interests of the child.

2. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 22571 (ONSC); Persaud v. Garcia-Persaud 2009 ONCA 782; Rolson v. Clyde, 2017 ONSC 3642

3. The Court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 3320 (Ont. C.A).

4. The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillo v Rigillo 2019 ONCA 548

5. Any assessment of the best interest of the child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz

44Section 16 of the Divorce Act, R.S.C., 1985, c. 3, as amended (the “Divorce Act”) (which is the prevailing legislation in this instance and not the CLRA as originally proposed by Justice Caspers in the October 31, 2018 Order who could not have contemplated proceedings under the Divorce Act at the time) sets out a list of factors to be considered in determining the best interests of a child, all of which I have considered.

45I find that there has been a material change in circumstances since the October 31, 2018 Order was made. With the respondent’s return to Canada from Iran in July 2019, his ability to meet the needs of Daniel and Dina have significantly increased. The benefits of in-person interaction are not to be underestimated. These benefits are obvious from the Notes which record a developing close relationship between the respondent and the children with the passage of time. The positive effects on the children from their evolving, nurturing relationship with the respondent speak for themselves. I am also of the view that at the time Justice Caspers made the October 31, 2018 Order the court could not have reasonably contemplated that the respondent would return from Iran to make Canada his home and assiduously exercise his parenting time with the children to the fullest extent possible in the circumstance of supervised virtual and in-person parenting time with Daniel and Dina. The applicant, herself, admitted that she had no expectation that the respondent would return to Canada from Iran and for that reason commenced proceedings in January 2019 for child and spousal support before the Iranian court.

46In determining the best interests of the children from their perspective, I see no reason to grant the respondent the decision-making responsibility that he is seeking. The applicant has fulfilled this role in an exemplary manner to date and I have been offered no rational basis for disturbing the status quo most likely because it is plain and obvious a change in the status quo would be detrimental to the children.

47I have also found that the respondent’s anger and contempt for the applicant is palpable to this day. For that reason, I reject any suggestion of shared decision making between the parties. It is clear to me that the respondent is incapable of constructively communicating with the applicant. At the same time by granting sole decision-making responsibility to the applicant, I have no concerns based on her conduct to date that the applicant will take steps to alienate the respondent from the children (see: Rigillo v. Rigillo, 2019 ONCA 548 and Y. v F.-T., 2017 ONSC 4395).

48On the other hand, I have determined that the children would benefit from unsupervised parenting time with their father. I have reached this conclusion given the respective ages of Daniel and Dina, the strong and developing bond between the respondent and the children, along with the respondent’s demonstrated willingness to support the growth of the children as individuals and as a family unit.

49My finding that the applicant was the subject of the Abuse Allegations does not escape me. However, and notwithstanding the reprehensible and inexcusable conduct of the respondent, I find that the respondent’s abusive treatment of the applicant is historical in nature and based on the respondent’s several past years of interaction with Daniel and Dina, not relevant to the exercise of his future parenting time with the children.

50In reaching the conclusion that it is in the children’s best interests that they have some unsupervised parenting time with their father, I have also considered the direction of the Supreme Court of Canada in Gordon v. Goertz and in s. 16(6) of the Divorce Act. That section of the Divorce Act provides that the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. I have also considered that while supervised parenting time may be appropriate to minimize risk to a child from a parent’s conduct, (see: W. (B.H.) v. W. (S.M.), 2001 SKQB 110), the Court of Appeal has stated that supervised parenting time is not a permanent solution to access problems. Supervised parenting time should only be used to alleviate a short-term problem and not to provide a long-term visitation arrangement (see: M. (B.P) v. M. (B.L.D.E.) (1992), 97. D.L.R. (4th) 437 (Ont. C.A.), leave to appeal to S.C.C. refused, 23430 (2 September 1993).

51These important principles are nonetheless to be weighed against my finding that in December 2017 the respondent removed the children from the applicant’s care without her consent and only at his discretion permitted the applicant to see Daniel and Dina on one occasion. For this reason, the applicant distrusts the respondent and is fearful that he may remove the children to Iran should unsupervised access be granted. The undisputed facts are that the respondent is proud of his Iranian heritage and has close ties with Iran where his mother and sister live and where the family has assets described later in these reasons.

52Most significantly, it is also undisputed that Iran is not a Hague Convention state. The applicant’s fear of being unable to retrieve Daniel and Dina from Iran if the respondent takes them there and keeps them there is not a theoretical one. The Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’) is premised on the principle that parents must agree on where their children live. Absent that agreement, there must be a mechanism in place for a parent who is seeking the return of a wrongfully removed child. For countries that are signatories to the Hague Convention, that mechanism exists. For those that are not, it does not, and the court cannot ignore this reality (see: Abdulhadi v. Ahmad 2019 ONSC 215, at para 29).

53Neither party has provided the court with expert evidence on the law and processes available in Iran regarding the return of a child to Canada from that country. Nonetheless, based on the evidence that I have heard, and the fact that Iran is not a Hague Convention signatory, I conclude that:

i) it would be very difficult, if not impossible, for the applicant to secure the children’s return to Canada particularly if she is not granted an Iranian divorce;

ii) any court proceeding in Iran to return the children to Canada would be slow, unpredictable and difficult; and

iii) the Iranian courts would not normally enforce child custody court orders.

54In balancing all of those factors, I find that while I am prepared to grant unsupervised parenting time to the respondent, I am not prepared to order the liberal and generous parenting time sought by him. In addition, my parenting time order will include provisions to safeguard against the respondent’s unauthorized travel with the children.

55Accordingly, I order that the respondent will have:

i) unsupervised in-person parenting time with the children for 2 hours from 3pm to 5pm commencing on Saturday, May 27, 2023 and on every alternative Saturday thereafter for a period of 12 months.

ii) commencing Saturday, May 25, 2024, unsupervised in-person parenting time with the children for 4 hours from 1pm to 5pm and on every Saturday thereafter;

iii) such further and additional unsupervised in-person parenting time as the applicant determines appropriate in her discretion;

iv) virtual unsupervised parenting time with the children for one 1-hour per week on Wednesdays from 4:30pm to 5:30pm or such other time for one 1-hour on Wednesdays as the applicant determines appropriate in her discretion; and

v) pick-up and drop-off of the children for the in-person parenting time visits will take place at the Tim Horton restaurant outlet closest to the Underhill Crescent Property or such other location as the parties may agree.

56I would have been prepared to order more liberal unsupervised parenting time to the respondent had he offered to deliver up his Canadian and Iranian passports to this court or applicant’s counsel. While I am not prepared to order the respondent to do so, the following, among other provisions, are to be included in my order:

(a) The applicant will have care and control of the Canadian and Iranian passports and the birth certificates issued in the respective names of the children.

(b) The applicant may apply for a renewal of each of the children’s Canadian passports without the consent of the respondent but under no circumstances may the respondent apply for either child’s passport without an order of this court.

(c) The respondent may not remove the children from the province of Ontario without the written consent of the applicant or order of this court.

(d) A certified copy of my order is to be delivered by registered letter by each of the parties’ counsel (with a copy of such letter to the other) to the Canada Border Services Agency (‘the Agency’) identifying each of the children by date of birth and current Canadian and Iranian passport numbers with the request that the Agency add each of the children’s names to its Passport System Lookout List and that the Agency take all available and necessary steps to ensure the children do not travel outside of Canada other than in the company of the applicant or by the authority of this court; and

(e) A certified copy of my Order is to be delivered by registered letter by each of the parties’ counsel (with a copy of such letter to the other) to both the Iranian Interests Section of the Pakistani and Turkish Embassies in Washington D.C., as well as to the Islamic Republic of Iran Ministry of Foreign Affairs in Tehran, Iran with a request that under no circumstances should Iranian passports be issued to the children without further order of this court.

57I have also considered the respondent’s request that I order that the applicant not live outside the Region of Waterloo without his consent. Because there was no evidence lead at trial with respect to this issue, I am not prepared to grant this relief in a vacuum. My focus is the best interests of the children. I have no evidence to suggest that it is in their best interests that such an order be made. Accordingly, I decline to make the respondent’s requested order.

The Marriage Contract

58The parties signed a Marriage Certificate on the occasion of their wedding on November 8, 2011. The Marriage Certificate is written in Farsi and an agreed English translation was offered into evidence. The Marriage Certificate includes a maher or a pre-nuptial agreement specifying what things the groom will give to the bride. The Marriage Certificate provides:

“Bride’s Dowry: A volume of the Holy Quran, plus a mirror and a pair of candleholders, one crystal sugar bar and the cost of a trip to Mecca for haj and Hazrat Zahra Traditional Marriage Portion which remains due and payable by the husband to the wife upon her demand”.

The Marriage Certificate also includes this provision:

“Other condition: The husband undertakes that upon buying a residential house, he needs to transfer six portions of the house (which means the entirety of that house, in full and final satisfaction of all property claims) to the wife, signed”.

59There is no dispute that the original Marriage Certificate is signed by parties and witnessed.

60As previously stated in the Reasons, the respondent paid the monetary equivalent of the “Bride’s Dowry” portion of the maher a few months prior to returning to Canada in July 2019 in order to obtain his passport. He paid the Canadian currency equivalent of $7,787.53.

61The applicant seeks enforcement of the balance of the maher, and specifically, the respondent’s transfer of his interest in the Underhill Property to her on the basis that the Marriage Certificate is a valid marriage contract. In contrast, the respondent submits that the Marriage Certificate is not an enforceable marriage contract.

62The applicant’s evidence is that the Marriage Certificate is a preprinted form to which additions can be made. In the last-minute negotiations between the parties and their respective families, it was agreed that the applicant would receive upon demand a one hundred percent interest in the parties’ family home, as opposed to the usual fifty percent interest, because the respondent was to obtain his Canadian citizenship through marriage with her and because the respondent was unable to include gold coins as a part of the generally accepted dowry provisions. The applicant also testified that prior to signing the Marriage Certificate its terms were discussed with a lawyer. It is also the applicant’s testimony that when the parties purchased the Underhill Property it was on the mortgagee’s insistence that the respondent’s name be on title along with hers.

63Apart from insisting that he could have obtained his Canadian citizenship independent of the applicant, the respondent’s version of the events leading up to the signing of the Marriage Certificate does not differ significantly from that of the applicant save and except that he testified that the parties did not have the benefit of legal advice prior to signing the document. Notwithstanding the respondent’s position, I am satisfied that he understood the terms of the Marriage Certificate. The respondent’s evidence is that he included the real property transfer provision in the Certificate “because my father gave his half of the house to my mother, and they were happy”. He also testified that “I said I would give her a house and the officiate added it”. Nonetheless, from the respondent’s perspective, the Marriage Certificate is not a valid marriage contract because when he signed it, he was “naïve, blind and in love”. He also asserts that he does not own a house but “rents to own”, and in any event, “the residential house” referred to in the Marriage Certificate refers a home in Iran, not in Canada.

64Although the evidence is that the Underhill Property was purchased in 2017 for $471,000 and as of October 2022, it was encumbered with a charge in the amount of $369,772.09, no appraisal of the property was tendered in evidence. The applicant’s “belief” is that the home may be valued at $735,000. While the current value of the Underhill Property is a matter of dispute, it is undisputed that since March 1, 2018, the respondent contributed less than $3,000 to the property’s mortgage, insurance, taxes and utilities; not to mention any necessary repairs, including a new roof which was required on the date of purchase.

Analysis

65A marriage contract is a “domestic contract” (see: Family Law Act, s. 51). Section 58(a) of the Family Law Act provides that the manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of contract, except that a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law. The proper law of a contract is governed by the law that the parties intended to apply (see: Vita Food Products Inc v. Unus Shipping Co, 1939 (UKJCPC). Section 58(a) of the Family Law Act is, however, inapplicable in this instance because the parties have not proven that the proper law of the contract is the law of Iran. Even were Iranian law the proper law of contract, no evidence was lead regarding the law of contract in Iran. Therefore, in the absence of such evidence the proper law of contract is the law of the forum which, in this case, is Ontario.

66In applying the law of Ontario, I find that the Marriage Certificate is a marriage contract pursuant to the provisions of s. 52 of the Family Law Act given that the parties entered into this agreement to resolve certain rights and obligations under the marriage or on separation with respect to the ownership and division of property (s. 52(a)) and any other matter in the settlement of their affairs (s. 52(d) (see: Ghavamshirazi v. Amirsadeghi 2007 62844 (ON SC), [2007] O.J. No. 5359, at paras 11 & 12)

67To be enforceable under the Family Law Act, a marriage contract must be in writing, signed by the parties and witnessed (s. 55(1)). There is no dispute that the Marriage Certificate constitutes a marriage contract that is in writing and is signed by the parties and witnessed. The inquiry does not, however, end there.

68There are judicial oversight provisions contained in s. 56(4) of the Family Law Act that provide that a court may set aside a domestic contract or a provision in it:

a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

b) if a party did not understand the nature or consequences of the domestic contract; or

c) otherwise in accordance with the law of contract.

69Respondent’s counsel argues that the marriage contract should be set aside because financial disclosure was not provided by either party. While I can contemplate the applicant raising this issue for reasons that are apparent later in this judgement, she did not. Additionally, and most importantly, the respondent has failed to raise a scintilla of evidence to suggest that the applicant failed to disclose an asset or debt. The evidence is that she had no significant assets or liabilities in 2011 when the parties married.

70I have already found that the respondent understood his obligation to transfer the family home to the applicant upon purchasing it. While the parties may not have had independent legal advice and the respondent may have been naïve in matters of love, I have no doubt the respondent fully appreciated the nature of his agreement. In fact, the respondent acknowledged that had he bought a home in Iran, he would have been required to transfer his interest in it in favour of the applicant. The same is not, however, true for a home in Canada. Contrary to the position of the applicant, the respondent asserts that there is no contractual obligation for him to transfer to the applicant his interest in the Underhill Property because it is situated in Canada.

71The question then becomes whether the marriage contract is too ambiguous to be enforceable? In UBS Securities Canada, Inc, v. Sands Brothers Canada, Ltd., 2009 ONCA 328, the Ontario Court of Appeal stated, at paragraph 47 that:

For a contract to exist, there must be a meeting of minds, commonly referred to as consensus ad idem. The test as to whether there has been a meeting of minds is an objective one – would an objective, reasonable bystander conclude that, in all the circumstances, the parties intended to contract? As intention alone is insufficient to create an enforceable agreement, it is necessary that the essential terms of the agreement are also sufficiently certain…

72The Ontario Court of Appeal in Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673 (‘Salah’) at paragraph 16 provided further guidance:

The basic principles of commercial contractual interpretation may be summarized as follows. When interpreting a contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have in tended what they have said. The court construes the contract as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context underlying the negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity. Where a transaction involves the execution of several documents that form parts of a larger composite whole-like a complex commercial transaction – and each agreement is entered into on the faith of the others being executed, then assistance in the interpretation of one agreement may be drawn from the related agreements.

73The marriage contract is clear that upon the respondent’s purchase of a home, whatever interest he may have in the home, is to be transferred to the applicant. The parties agree that the “transfer of six portions of the house… to the wife” means that the applicant is to have sole ownership or title to the house. The respondent argues, however, that there was no meeting of the minds with respect to where the home is to be located. He argues that because the transfer obligation refers to “six portions of the house”, a common turn of phrase with a specific meaning in Iran and no significance in Canada, he naturally believed that his obligation was limited to a home located in Iran and if the applicant believed otherwise when she signed the Marriage Certificate, the parties were not of one mind.

74In my opinion, the relevant provision does not restrict the geographical location of the home to be transferred. If I am incorrect, however, and the respondent’s contractual obligation is ambiguous, then pursuant to the Court of Appeal’s direction in Salah, the court may look to extrinsic evidence to settle the parties’ intention. The respondent testified that very early in their relationship the applicant told him under no circumstances did she wish to stay in Iran. He testified that he agreed that they would move if they married and originally they agreed on settling in Germany. The respondent’s evidence is that the applicant ultimately changed her mind and decided that Canada would be their home as a married couple to which he agreed. The respondent also testified that when the applicant left for Canada in 2009, his plan was to join her in Canada as her husband immediately upon completion of his compulsory military service in Iran. In fact, the respondent did exactly as he had planned.

75Given that both parties agreed that they would not live in Iran as a married couple but rather they both were of one mind that Canada would be their home upon marriage and completion of the respondent’s military service, it is absurd for the respondent to suggest within the context of this factual matrix that the home to be transferred to the applicant was to be in Iran. To my mind the respondent’s proposition is illogical and unreasonable both from an objective perspective as well as from the respondent’s own subjective point of view. When the parties married in November 2011 and signed the Marriage Certificate, they both agreed that their home was to be Canada, not Iran.

76I, therefore, find that the parties’ marriage contract is both valid and enforceable and that the respondent’s one-half joint interest in the Underhill Property is to be transferred to the applicant.

77Based on the November 1, 2022 parcel register of the Underhill Property proffered in evidence, two Legal Aid Ontario liens encumber the lands. In the event that one or both of the Legal Aid Ontario liens continue(s) to encumber the respondent’s interest, then the respondent is to take all necessary steps to ensure the lien(s) is/are discharged forthwith.

78The respondent’s counsel argues that should I find that his client is required to transfer his interest in the Underhill Property to the applicant, then the value of the real estate should be included in the applicant’s net family property calculation and subject to equalization. I disagree. I do not accept the submission because the parties agreed by contract that the transfer of the Underhill Property to the applicant would be “in full and final satisfaction of all property claims”. In other words, I find that the parties agreed that the value of the matrimonial home to be transferred to the applicant is not subject to equalization.

Equalization Payment

79In calculating the net family property of each of the applicant and the respondent, I have excluded the Underhill Property. I have also excluded the assets that the applicant alleges that the respondent owns in Iran which are entirely denied by the respondent. I address these Iranian disputed assets in my consideration of the respondent’s obligation to pay retroactive child support as suggested by applicant’s counsel in her submissions. Where the parties have agreed on values, I have simply stated those values for purposes of the calculation. Otherwise for any values that are disputed, I stipulate my findings and the reasons for my conclusion.

A. Assets on Valuation Date

(i) General Household Items and Vehicles

80The parties are agreed that the value of the general household items on the date of separation was $7,325.

81As for the 2015 Chevrolet registered in the applicant’s name, I value it at its sale price in 2018 (as does the applicant) at $14,500.

82I also value the 2017 Toyota Corolla registered in the respondent’s name at its sale price of $10,000 because no other reliable evidence was presented at trial.

[83] Total value of General Household Items and Vehicles: applicant: $14,500 respondent: $17,325

(ii) Bank Accounts and Savings, Securities, Pensions

84The parties agree on the values of the bank accounts save for RBC account number xxx7720 and RBC account number xxx7966. I value the first account in the amount of $2,561.16 in accordance with the account statement as at March 2, 2018 and the second account in the sum of $825.98 as per the December 31, 2017 statement given that the next available statement is dated April 2018.

[85] Total value of Bank Accounts and Savings: applicant: $439.53 respondent: $3,953.78

(iii) Money Owed to the Parties

86Neither party has subscribed any values to this asset category but in my view the dowry amount owed to the applicant by the respondent in the Canadian equivalent of $7,787.53 is properly allocated to the applicant (see: Bakhshi v. Hosseinzadeh, 2017 ONCA 838).

B. Liabilities on Valuation Date

87The respondent submits that as at March 1, 2018 the amount of the RBC line of credit with account number xxx3001 in his name was $30,000 but the RBC statement as at March 1, 2018 records it at $26,500 and it is for this reason that I adopt the lesser number. I also include the respondent’s Toyota car loan indebtedness. The best evidence is that this debt was in the sum of $7,382.77 as at the date of sale. The respondent takes no position with the applicant’s line of credit account number xxx4001 indebtedness in the amount of $48,600 as at the date of separation.

[88] Total value of debts and other liabilities: applicant: $48,600.00 respondent: $33,822.77

C. Net value of Property and Debts on Date of Marriage

[89] Total net value of property and debts on date of marriage: applicant: $0 respondent: $0

90I reproduce a summary of these findings below along with a calculation of any equalization payment:

	Applicant	Respondent
Assets on Valuation Date
Household Items and Vehicles	$ 14,500.00	$ 17,325.00
Bank Accounts	$ 439.53	$ 3,953.78
Maher (Accounts Receivable)	$ 7,787.53
TOTAL	$ 22,727.06	$ 21,278.78
Debts and Liabilities on Valuation Date
Lines of Credit	$ 48,600.00	$ 26,500.00
Maher (Accounts Payable)		$ 7,787.53
Car Loan		$ 7,382.77
TOTAL	$ 48,600.00	$ 41,670.30
Assets on Marriage Date	nil	nil
Liabilities on Marriage Date	nil	nil
Net Value of Property on Valuation Date	nil	nil
Net Value of Property on Marriage Date	nil	nil
Net Family Property	nil	nil

91Therefore, I calculate that no equalization payment is due and owing by any party.

92The respondent also claims the return of certain personal property from the applicant, the particulars and values of which are included in my net family property calculation. This property includes a laptop, camera and rings. The applicant’s evidence is that she offered these personal items to the respondent. There are emails confirming the applicant’s offer to the respondent. When he did not respond to the offer, a friend of the respondent collected the chattels on the respondent’s behalf. The applicant has no knowledge why the items were not returned to him. I accept the applicant’s evidence that the items were delivered to the respondent’s friend and in the circumstances of my equalization calculation, I find no funds are otherwise due to the respondent to compensate him for these chattels.

Imputed Income and Retroactive Child Support

93The applicant seeks retroactive child support for Daniel and Dina from the March 1, 2018 separation date to June 30, 2022 and requests that this court impute income to the respondent from the date of separation to July 1, 2022 when he found full time employment as a software developer. The applicant asks that the court impute income based on a combination of a reasonable return on the respondent’s capital in Iran as well as his employment income earned in Canada prior to separation, his current income, level of education and skill set.

Imputed income

(a) Iranian Assets

94It is the applicant’s position that the respondent has an interest in the Iranian corporations, Esteel Sanaat Amood (‘Esteel’), Narvan Mood with 303559 corporation number (‘Narvan’) and Moodie Industries. Both parties described Moodie Industries as a manufacturer of machinery for the pharmaceutical, chemical and food industries and as the respondent’s father’s primary source of income. There is no evidence as to the business purpose of either Esteel or Narvan.

95The applicant maintains that the respondent has a ten percent interest in Esteel and Narvan based on two reports from the “I.R. of Iran Official News Paper, dated November 7, 2013 and March 12, 2017 which state that the respondent has a ten percent interest in each of these corporations while Ali Moodi, the respondent’s father, has a majority interest. The applicant asserts that the respondent has the same interest in Moodie Industries based on his history of working for that corporation both in his youth and as its Canadian business manager. Although the respondent may not have been paid a salary of any significance as the company’s business manager, he advised the applicant that he was working to build a family investment. It is also the applicant’s position that the respondent has an ownership interest in at least two parcels of land, the titles of which are held in the name of Ali Moodi. Her evidence is that one of the parcels of land is the property from which Moodie Industries operates. The applicant values these lands today at $3 million and $ 4 million Canadian dollars. On this basis, the applicant calculates the value of the respondent’s Iranian capital assets at a minimum of $250,000 Canadian dollars and submits a five percent rate of annual return should be imputed to his income.

96To prove that the respondent is a shareholder of Esteel and Narvan and that he worked for Moodie Industries at least from 2011 to 2020, the applicant relies in part on her Request to Admit, dated June 22, 2021 (the ‘June 2021 Request to Admit’) to which the respondent failed to reply. I am not prepared to consider the otherwise deemed admission of these allegations because I find based on the order of Justice Piccoli, dated October 15, 2021, and respondent’s counsel’s unchallenged submission that he was incapacitated at the time of delivery of the June 2011 Request to Admit that any deemed admissions resulting from the June 2021 Request to Admit were effectively set aside by the October 2021 Order of Justice Piccoli.

97For his part, the respondent’s evidence is that he had no idea of any ownership interest in either Esteel or Narvan until he was provided with the news reports in this proceeding. He admitted to confirming his ownership interest in both of these corporations with his father who also advised him, however, that neither corporation ever carried on active business operations; they are in effect shell corporations. The respondent also admitted to working for Moodie Industries as a youth for room and board and payment of his education but denies earning any income from Moodie Industries as an adult in excess of $200 per month. He also denied any interest in the corporation. He may have done some work for the corporation when he was initially living in Canada, but he was not paid for it. The company’s description of him as its Canadian business manager was nothing more than an advertisement without any substance. Finally, the respondent testified that he has no immediate inheritance from his deceased father’s estate because the estate assets were bequeathed to his mother.

98Based on the evidentiary record, I am unable to conclude that respondent has any interest in Moodie Industries. While I am of the opinion that he does have a minority interest in each of Esteel and Narvan, I am not satisfied that either corporation is currently operating and have value. Furthermore, were I satisfied of the respondent’s ownership interest in Moodie Industries and that one or both of Esteel and Narvan is/were active, I have no reliable evidence upon which to value the respondent’s interest. For all of these reasons, I am not prepared to impute any income to the respondent based on assets in Iran.

(b) Employment Income

99Until July 2022, the respondent’s employment history was sporadic. The evidence is that while the respondent completed his master’s degree between 2014 and 2016, he worked part-time at a local barbeque manufacturer and food processor.

100In July 2016 the respondent found work with TATA Consulting Services (‘TATA’) and did software engineering for the Bank of Montreal on a contract basis. That contract was completed within four months of the respondent being hired and for almost one year thereafter he was paid a retention salary by TATA. During this lay-off period, the respondent also worked as a UBER driver. Unfortunately, TATA never recalled the respondent with new contract work.

101It is the respondent’s evidence that between the time he left for Iran in November 2017 until his return to Canada in July 2019, he had no sources of income and relied entirely on his parents to support him. Although the applicant suspects he may have been paid by Moodie Industries, there is no evidence to support the position.

102From July 2019 until the summer of 2021, when the respondent returned to Iran on his father’s passing, the respondent collected government assistance in the form of Ontario Works. These government payments were also supplemented by family gifts to meet his needs. It is the respondent’s position that during this approximate two-year period he was actively looking for work and had sent out “thousands” of application letters. Not one of the respondent’s letters of application was, however submitted into evidence.

103Upon the respondent’s return to Canada in November 2021, he was once again a recipient of government assistance and family gifts to finance his needs until March 2022 when he began to work for HiveStack Inc. The respondent was terminated from this employer two months later in May 2022 because of a lack of experience but was paid a severance. According to the respondent’s record of employment from HiveStack Inc., he was paid approximately $19,000 in employment and severance income.

104In July 2022, the respondent found his current employment with the Staffing Edge ULC for which he does software development work. He is paid an annual salary of $120,000 and received a signing bonus of $5,000 which must be repaid in the event that the respondent does not complete twelve months of employment.

105During the respondent’s extended stay in Iran from November 2017 to July 2019, he explains that he did not return to Canada to find work and was unable to find work in Iran notwithstanding his master’s degree in engineering and computer science for a variety of reasons. These reasons include:

(i) the COVID-19 Pandemic;

(ii) the seizure of his passport because of his failure to pay the Marriage Certificate dowry;

(iii) his lack of experience;

(iv) the need to be present in Iran to defend or prosecute the Iranian Proceedings and;

(v) the poor state of his mental health.

106Once back in Canada it is the respondent’s position that he was not able to secure employment until recently because of the extremely competitive job market, his preoccupation with these proceedings and his “damaged” mental health. On cross examination, the respondent explained that the applicant “has done many things to make my life and my family’s life miserable.”

107The following is a summary of the respondent’s reported income from his Canada Revenue Agency notices of assessment for the years 2016 to 2021.

Taxation Year	Total Reported Income
2016	$29,406
2017	$55,116
2018	$0
2019	$4,508
2020	$11,796
2021	$6,127

108The applicant submits that this court should impute annual employment income to the respondent in the amount of $55,116 as well as annual income from his Iranian capital assets of $12,500 for the years 2018 to 2021 inclusive as well as a pro rated amount for the first six months of 2022. I have already concluded that I cannot impute income on the basis of any Iranian assets.

109For his part, the respondent submits that no income should be imputed, and retroactive child support should be calculated only on the basis of his reported income.

Analysis

110Section 19(1)a of the Federal Guidelines permits the Court to impute additional income where a spouse is intentionally under employed:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the underemployment or unemployment is required by the needs of a child of the marriage or any child under the age of the majority or by the reasonable educational or health needs of the spouse;…

111Imputing income is one means by which the court gives effect to the joint and ongoing obligation of parents to support their children. This obligation requires that parents must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

112The Court of Appeal in Drygala v. Pauli, 2002 41868 (ONCA) (‘Drygala’) set out the following three questions to be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the party’s reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?

3. If not, what income is appropriately imputed?

113The Court of Appeal found in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning, and likewise, the payor is intentionally unemployed if he or she chooses not to work. The court is required to look at whether the act is voluntary and reasonable. There is also no requirement of bad faith or intention to evade support obligations inherent in intentional under-employment or unemployment (see: Drygala at paras 24-37). In short, the reasons for the under-employment or unemployment are not relevant.

114The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally under-employed or unemployed. The person seeking an imputation of income must establish an evidentiary basis upon which a finding of intentional under-employment or unemployment can be made (see: Homsi v. Zaya, 2009 ONCA 3320). The absence of evidence of a reasonable job search will usually leave the court with no choice but to find the payor is intentionally under-employed or unemployed (see: Filippetto v. Timpano, 2008 3962 (ONSC)).

115If intentional under-employment or unemployment is established, the onus shifts to the payor to establish an acceptable reason (see: Jackson v Mayerie, 2016 ONSC 72). When an employment decision will result in a significant reduction of child support, it needs to be justified in a compelling way (see: Riel v. Holland, 2003 3433 (ONCA)).

116If the payor cannot establish a reasonable explanation, then the court must decide what income should properly be imputed in the circumstances. The Court retains discretion to decide how much income is to be imputed to the under-employed or unemployed spouse (see: Lavie v. Lavie, 2018 ONCA 10 (‘Lavie’)) at para 31). When imputing income in these circumstances, a court must consider what is reasonable in the circumstances. (see: Lavie, at para 32). The factors to be considered include age, education, experience, skills and health of the parent (see: Lavie, at para 32).

117There is no evidence to suggest that the respondent sought any employment during his sojourns in Iran. It is inexcusable that at a minimum he did not seek employment at his father’s company, Moodie Industries, for a wage. I reject any suggestion that he was unable to find work in Iran or move back to Canada to secure employment because he was preoccupied with the Iranian Proceedings. There is no reason that the respondent could not have engaged a lawyer sooner than he did and instructed his lawyer to address the issues raised in the Iranian Proceedings just as the applicant had done from the outset while she lived, worked and supported the children in Canada.

118I also reject the position that the respondent had no choice but to remain in Iran as he did from March 2018 to July 2019 because of the seizure of his passport. Again, there is no reason that respondent could not have secured a bank loan sooner than he did to satisfy his dowry obligation in exchange for his passport.

119Once back in Canada, the respondent testified that he applied for multiple positions, but he failed in his attempts to find a position because of his lack of experience in the industry, his emotionally distraught state resulting from this litigation, and the restrictions imposed by the COVID Pandemic. While I am prepared to take judicial notice that the recent pandemic may have had some impact on the respondent’s job prospects in Canada, the court heard no details of the respondent’s job search or of the applications he allegedly provided to prospective employers. Likewise, no medical evidence of the respondent’s mental health was offered to the court for its consideration. Bald assertions are not satisfactory in these circumstances.

120Were I to accept that the Pandemic and the respondent’s lack of experience account for his inability to find employment in his area of expertise, this explanation does not rationalize why the respondent did not work as an UBER driver as he had done prior to leaving for Iran in November 2019 and/or seek out other work outside of his area of expertise.

121It is also of some significance that his friends encouraged the respondent to find work. Hamid Mohebhi testified that he “asked [the respondent] a lot to work and earn money”. Aliveza Khodalan stated that he tried to convince the respondent “to be more active in finding a job”. In a November 1, 2020, email from Mr. Khodalan to the applicant and others, Mr. Khodalan writes:

“as I had mentioned several times it is very important that Mojtaba should financially support his family and no doubt is super lazy in finding job as he has reasons to not going on correct track on this subject for a long time;”.

122In all of these circumstances, I find that the respondent voluntarily chose to remain unemployed until March 2022 when he found a position with Hirestock Inc. I also find that the respondent has not established a reasonable explanation for his intentional unemployment.

123With this finding, I have considered the respondent’s age, health, education and skills as well as the impact of the Pandemic on the Canadian job market for the years 2020 and 2021 and impute income of $50,000 to the respondent for the years 2018 to 2021 inclusive as well as for the first six months of 2022.

Retroactive Child Support

124Having imputed income to the respondent, consideration must be given as to whether a retroactive child support order is to be made. In this respect, I am guided by the Supreme Court of Canada’s decisions in D.B.S v. S.R.G, 2006 SCC 37 where the court stated that in determining a retroactive award, a holistic view of the matter is to be informed. The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility. In doing this, the court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might cause hardship. Once the court determines that a retroactive child support order should be made, as a general rule the award should be retroactive to the date of effective notice by the recipient parent that child support should be paid, but to no more than three years in the past.

125It is my opinion that there was no undue delay on the part of the applicant in commencing her application on November 21, 2018, which seeks, among other relief, a claim for child support. Frankly my view is that no parent should require notice of their obligation to support their child but in this case, notice was given within a reasonable time considering the circumstances of the applicant’s return from Iran.

126I am also satisfied that the applicant has demonstrated need for support of the children given her annual income of approximately $60,000 from 2018 to date and her testimony that she relied on the financial support of her family.

127I am also aware of the need to balance the needs of the children with any undue hardship that a retroactive order may have on the respondent notwithstanding his irresponsible conduct in not fulfilling his support obligations to the children for some five and half years.

128For all of these reasons, I award retroactive child support in the lump sum amount of $27,180 based on thirty-six monthly payments of $755 in accordance with the Federal Guidelines.

129Against this lump sum amount, I am prepared to credit the respondent with the mortgage, utility and insurance payments he made in the few months immediately following the parties’ March 1, 2018, separation. The parties have agreed these payments total $3,177.56 (the ‘Underhill Property Payments’).

130In addition, following the applicant’s sale of the Chevy Traverse automobile in June 2019, she had exclusive use of the family’s second vehicle, the Toyota Corolla, registered in the respondent’s name, until June 2021 when the respondent took possession of it. Throughout this two-year period, the respondent maintained the Toyota Credit monthly loan payment of $286.92 for a total payment of $6,886.08 (the ‘Car Payments’). I am prepared to also set off the Car Payments against the lump sum child support award.

131After crediting the Underhill Property Payments and the Car Payments, the respondent’s net retroactive child support obligation is $17,116.36.

Section 7 Expenses

132Special or extraordinary expenses are addressed in s. 7 of the Federal Guidelines. Section 7 delineates certain expenses that are by definition special or extraordinary. Section 7 requires the court to consider the necessity of a proposed special expense for the child, what might reasonably be contributed to the expense by the child and the means and circumstances of the parents in assessing their ability to make a proportionate contribution to the special or extraordinary expense. Subsection 7(3) of the Federal Guidelines suggests that the starting point for the proportionate contribution is the respective incomes of each party.

133The undisputed s. 7 special expenses incurred by the applicant on behalf of the children for the years 2020 and 2021 are in the cumulative sum of $2,088. Based on the respondent’s imputed income of $50,000 for these years and the applicant’s average income of $60,000 for the same period, I find that the respondent is responsible for 45% of these s. 7 expenses or $940. The children’s s. 7 expenses for 2022 are $1,068.00. Based on the respondent’s 2022 actual income of $85,000 and the applicant’s 2022 income of $60,000, I also find the respondent is responsible for 59% of the children’s 2022 s. 7 expenses or $630.

134The applicant proposes that the respondent’s total retroactive lump sum child support obligation of $18,686.36, inclusive of s. 7 expenses, be paid at the rate of $1,000 per month. I find that this repayment schedule would impose unnecessary hardship on the respondent. I order that the respondent’s retroactive lump sum child support obligation be paid at the rate of $400 per month. My retroactive child support order is made on the same basis as the parties’ consent child support order. It is conditional on the applicant taking immediate steps to resend the Iranian support order.

135Finally, based on the applicant’s 2022 income of $60,000 and the respondent’s current income of $120,000, I find that the respondent shall pay 66.66% of the children’s s. 7 expenses going forward.

Disposition

136For all of the above noted reasons, the following order will issue:

1. The applicant shall have sole decision-making responsibility for the children of the marriage, Daniel Moodie (born December 16, 2013) and Dina Moodie (born August 15, 2016) (collectively, “the Children”).

2. The applicant shall have primary residence of the Children.

3. The habitual residence of the Children shall be Canada.

4. The respondent shall have unsupervised in-person parenting time with the children for two (2) hours from 3 p.m. to 5 p.m. commencing on Saturday May 27, 2023 and on every alternate Saturday thereafter for a period of twelve (12) months.

5. Commencing Saturday May 25, 2024, the respondent shall have unsupervised in-person parenting time with the Children for four (4) hours from 1 p.m. to 5 p.m. and on each and every Saturday thereafter.

6. The respondent shall also have such further and additional unsupervised in-person parenting time as the applicant determines appropriate in her discretion.

7. The respondent shall have unsupervised virtual parenting time with the Children for one (1) hour each Wednesday from 4:30 pm to 5:30 pm or such other time for one (1) hour on Wednesdays as the applicant determines appropriate in her discretion.

8. Pick up and drop off of the Children for the in-person parenting time visits will take place at the Tim Hortons restaurant outlet closest to the matrimonial home, 72 Underhill Crescent, Kitchener located at 1426 Weber St. E, Kitchener or such other location as the parties may agree.

9. The parties shall use the AppClose parenting app to communicate about any matters involving the Children.

10. The parties shall not speak ill of the other or in the presence of the Children.

11. The applicant will keep the Canadian and Iranian passports and birth certificates issued in the respective names of the Children.

12. The applicant may apply for the renewal of the Children’s Canadian passports without the consent of the respondent but under no circumstances may the respondent apply for the Children’s Canadian or Iranian passport without order of this court.

13. The respondent may not remove the Children from the province of Ontario, Canada without written consent of the applicant or order of this court.

14. A certified copy of this order is to be delivered by registered letter by each of the parties’ counsel (with a copy of such letter to the other) to the Canada Border Services Agency (the ‘Agency’) identifying each of the Children by their respective dates of birth and current Canadian and Iranian passport numbers with the request that the Agency add each of the Children to its Passport System Lookout List and that the Agency take all available and necessary steps to ensure that the Children do not travel outside Canada other than in the company of the applicant or by the authority of this court.

15. A certified copy of this order is to be delivered by registered letter by each of the parties’ counsel (with a copy of such letter to the other) to the Iranian Interest Sector of the Pakistani and Turkish Embassies in Washington, D. C. as well as to the Islamic Republic of Iran Ministry of Foreign Affairs in Tehran, Iran with a request that under no circumstances should Iranian passports be issued to the Children without further order of this court.

16. In the event that the respondent fails to adhere to the parenting provisions, passport and travel restrictions of this order, the police force having jurisdiction where one or both of the Children may be found, is hereby ordered to locate, apprehend and deliver one or both of the Children to the applicant at any time that the applicant requests the police to do so.

17. The marriage certificate dated November 8, 2011, is a valid and enforceable marriage contract.

18. The respondent shall transfer forthwith his interest in the matrimonial home municipality known as 72 Underhill Crescent, in the city of Kitchener (the ‘Matrimonial Home’) to the applicant and it shall vest in the applicant in full and final satisfaction of her property claims.

19. The respondent will take immediate steps to discharge any Legal Aid Ontario liens registered against the Matrimonial Home and encumbering his interest in the Matrimonial Home.

20. The respondent’s claim for an equalization payment from the applicant is dismissed.

21. The respondent’s claim for the return of his personal property itemized in his Financial Statement, sworn October 4, 2022, is dismissed.

22. Retroactive child support arrears for the Children are fixed in the amount of $18,686.36, inclusive of section 7 expenses, and shall be paid at the rate of $400 per month commencing on the first day of June 2023 and on the first day of each month thereafter until the child support arrears are paid.

23. On consent, the respondent will pay child support for the children in the amount of $1,716 per month and on the first day of each month.

24. Section 7 expenses for the children not covered by benefits available to either party shall be payable proportionately by the parties with the respondent paying 66.66% and the applicant paying the difference based on their current annual respective incomes.

25. On consent, the retroactive child support, current child support and Section 7 expense orders enumerated in subparagraphs 22, 23 and 24 are subject to the condition that the applicant will take immediate steps to resend the support order, dated May 19, 2019, issued in case number 9709983023 401514 by Justice Administration of Alborz Province, Chamber 8 Disputes Settlement Council (former 105) – Complex number 1, Shahid Beheshti and provide respondent’s counsel with confirmation of such recession forthwith upon receipt.

26. On consent, unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order has been issued.

27. The parties shall exchange Notice of Assessment annually by June 30.

28. On consent, the respondent will execute all documents required for an Islamic Iranian divorce within 14 days of receipt of written confirmation that the applicant has withdrawn all outstanding claims and rescinded all orders issued in the Iranian Court Proceedings.

Costs

137I encourage the parties to agree on the issue of costs. In the unfortunate event, however, they are unable to agree, I am prepared to entertain cost submissions.

138The party seeking costs shall deliver costs submissions within fifteen (15) days of the release of these Reasons for Judgment and the responding party shall deliver responding costs submissions within ten (10) days of receipt of the submissions of the party seeking costs. Reply submissions, if any, are to be delivered within five (5) days of receipt of the submissions on behalf of responding party. The initial and responding submissions are not to exceed five (5) pages doubled spaced excluding costs outlines, offers to settle and authorities. Any reply submissions are not to exceed two (2) pages. All submissions are to be sent to my attention via my Judicial Secretary by email to Brontae.Frook@ontario.ca with a copy to the Kitchener.SCJJA@ontario.ca email address.

M.J. Valente, J.