Ontario Superior Court of Justice

Court File No.: FC-20-557
Date: 2025/05/02

Between:
Narjes Ebrahimi, Applicant
– and –
Mohammad Ali Muradi, Respondent

Joan Rothwell, for the Applicant
Respondent, Self-Represented (in default)

Heard: In Writing

Reasons for Decision on Uncontested Trial
Parenting and Imputation of Income for Child Support
Somji J.

Introduction

[1] The Applicant Mother, Narjes Ebrahimi, has had no contact with the Respondent Father, Mohammad Ali Muradi, since 2016, a period of nine years. She seeks a divorce, a parenting order, and retroactive and ongoing support based on an imputed income for the father.

[2] The issues to be decided are:

1. Have the grounds been met for an uncontested trial?
2. What parenting order is in the best interests of the children?
3. What, if any, income should be imputed to the father for the purposes of child support?

Issue 1: Have the grounds for an uncontested trial been established?

[3] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r.10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

[4] An “uncontested trial” is defined at r. 2(1) as a trial at which only the party making the claim provides evidence and submissions.

[5] The mother is unable to locate the father. She filed an application for dispensation of service wherein she highlighted the following in her affidavit of September 20, 2022:

• Neither she nor the children have seen the father since March 18, 2016.
• She has not had telephone contact with the father since 2017. The number she had for him is no longer in service.
• The children have not had telephone contact with the father since March 18, 2016.
• The last known address she had for the father was 1709-65 Forest Manor Road in Toronto, Ontario. A process server hired to serve her Application dated March 16, 2020, on the father, but was unable to locate him at that address after two attempts on March 21 and November 11, 2020.
• The mother personally travelled to Toronto at the end of April 2020 to serve the father and was unable to locate him at that address. The building manager told her the father was no longer living in the building and the new tenants of the unit said they had lived there for three years and were receiving his mail.
• Two neighbourhood friends, Zara and Yasin, advised the mother that they had not seen the father since 2017.
• The mother has been unable to contact the father through Facebook.
• In July 2020, a father’s relative in Iran said she had no contact with the father since 2017 and another relative in England refused to provide further information.
• In July 2021, when her father passed away, she received a message on her Facebook from a person named Noormohammad Nori offering condolences. When she inquired, they said they were an employee of her own father, but she suspects it was the Respondent father.

[6] On March 24, 2023, Shelston J. granted an order for dispensation of service and directed the matter proceed to an uncontested trial.

[7] In the absence of an Answer, the father is in default. I am satisfied the conditions are met for an uncontested trial.

Issue 2: What parenting order is in the best interests of the child?

[8] The parties married in July 2000 and separated in 2012. They have two children. The first is D.M., who is now 21 years of age. He graduated from high school in June 2023. The second is C.M., who is 17 and approaching his final year of high school.

[9] The mother seeks a parenting order only for C.M. even though he will be turning 18 in less than four months. While the mother was granted permission to bring an uncontested trial in 2023, her motion was only filed electronically with the court two years later, on March 6, 2025.

[10] The primary consideration in determining an interim or final parenting order is the best interests of the child. In considering the children’s best interests, the court must give primary consideration to the children’s physical, emotional and psychological safety, security, and well-being while also considering all factors related to the circumstances of the children: ss. 16(2) and 16(3) Divorce Act, RSC 1985, c 3 (2nd Supp), as am (“D.A.”); see also S.S. v. R.S., 2021 ONSC 2137, para 30.

[11] Section 16(3) DA lists the best interest factors as follows:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
    (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

[12] In arriving at my decision, I have considered all the best interest factors but focus below on those most pertinent to this matter.

[13] As per the mother’s materials filed for the uncontested trial, the parties were married in Iran in 2000. They came to Canada in 2003 and lived in Toronto. Both children were born in Canada. Notwithstanding that the mother and children became Canadian citizens, for reasons that are unclear, the father forced the mother to move to Sweden with the children in 2012 and to claim refugee status there as an Afghan refugee.

[14] The mother settled into life in Sweden. The father spoke to her and the children daily, but only visited the family in Sweden in 2015. At that time, he told the mother that it was a mistake to send her and the children to Sweden and threatened that if she failed to return to Canada, he would report to the Swedish authorities that she kidnapped the children.

[15] The mother agreed to return to Canada, but the father had not provided her financial means to do so. He then reported her to the Swedish police. The mother was arrested and detained for two weeks while the children were placed in foster care. The mother claims the child protection authorities in Sweden told her not to allow the children to see their father. The father’s last contact with the children was on March 18, 2016. The mother was subsequently deported from Sweden, and she and the children returned to Canada in October 2018. She continues to have the same telephone number, but the father has not contacted her.

[16] The mother has been the primary caregiver of the children. The history of care indicates the children have always resided with her except a two-week period when she was detained: 16(3)(d) DA. The father has been minimally involved in the children’s lives. He has not seen them for nine years, and there is no evidence of any plan for him to be involved in their future care: 16(3)(g). According to the mother, the father has not provided any emotional or financial support for the care of the children: 16(3)(h). These factors favour the mother’s request.

[17] The mother states that the father was emotionally and physically abusive towards her. When living with the father, she was only allowed to leave home to attend mosque. She had no access to money or say in family decisions. She was unable to attend school. She has since started school and is working towards obtaining high school credits. The mother alleges that the father’s family has also sent messages to her threatening to kill her. She continues to be afraid for her safety should the father know her address. I note, however, that the mother did not request a restraining order. The presence of family violence supports the mother’s request: 16(3)(j).

[18] The mother has not presented any evidence with respect to the children’s views and preferences: s. 16(3)(e) DA.

[19] Notwithstanding that C.M. is just a few months shy of his 18th birthday, I find it is in his best interests to grant the terms requested by the mother for a Final Parenting Order. There will be a Final Order that:

• The mother will have sole decision-making responsibility for C.M.
• The mother may obtain a passport for C.M. without the father’s consent.
• The mother is permitted to travel with C.M. outside of Canada without the father’s consent.
• The father will have parenting time with C.M. at the mother’s discretion.

Issue 3: What income should be attributed to the father for the purposes of child support?

[20] The mother seeks retroactive child support to January 1, 2017, and ongoing child support from the father on an imputed income of $43,371. The mother believes the father is a taxi driver and understands the amount proposed is the average income for a taxi driver in Toronto.

[21] Child support may be ordered on imputed income: Federal Child Support Guidelines, SOR/97-175, s. 19(1). However, there must be some evidentiary basis for the imputation as well as a rational basis for the amount chosen: Drygala v. Pauli, para 44. To impute anything more than a minimum wage income the court needs to have some evidence upon which to make such a finding: Dassin v. Perpignan, 2021 ONSC 1066, para 8.

[22] Based on the pleadings filed, there is no evidentiary basis for an order for retroactive or ongoing child support. The mother has not had contact with the father for nine years. She has no knowledge of his whereabouts, let alone his profession since 2016. There is no evidence that he has been working since 2017, what type of work he does, or what his earnings are. In these circumstances, the mother’s application for child support is denied.

Other

[23] The mother seeks a divorce. The mother states in her affidavit of February 1, 2024, that the parties were married in Iran. The marriage certificate indicates that they were married in the Embassy of the Islamic State of Afghanistan in Tehran, Iran, on September 21, 2000. All other requirements for divorce have been met.

[24] The divorce is granted pursuant to the Divorce Act.

[25] Counsel will provide a draft Order consistent with this decision for my review and signature by May 9, 2025.

Shereen Somji
Released: May 2, 2025