Court File and Parties

Court File No.: FS-23-00034554-0000 Date: 2025-08-06 Superior Court of Justice – Ontario

Re: Mozhdeh Sajjadi, Applicant And: Zaman Forootan, Respondent

Before: M. Kraft, J.

Counsel: Trevor Smith, for the Applicant Michael J. Stangarone, for the Respondent

Heard: July 29, 2025

Endorsement

Nature of the Motion

[1] Zaman Forootan ("the father"), brings a motion seeking a declaratory order that the Ontario Superior Court of Justice has jurisdiction to make parenting orders relating to the parties' two children, M., born September 7, 2012, and B., born November 10, 2015. He submits that given the Israeli-Iran conflict, the mother fled Iran with the children, through Turkey, and brought the children to the Netherlands in June 2025, from where they travelled to Toronto to have summer parenting time with him. The father argues that the mother's own actions of leaving Iran dictate that there is imminent harm to the children if they return to Iran. He submits that the children are Canadian citizens, have strong ties to Ontario, are present in Ontario and will suffer serious harm if they have to return to Iran.

[2] Mozhdeh Sajjadi ("the mother"), seeks an order dismissing the father's motion on the basis that the children's habitual residence is Iran and accordingly, Iran has jurisdiction over parenting issues. The children have resided in Iran since March 2016. They have never resided in Ontario, other than coming to visit with the father on holidays. The mother acknowledges that she and the children left Tehran on June 21, 2025, but argues that they were not in immediate danger, and, in any event, the Israel-Iran conflict ended on June 24, 2025. The mother travelled with the children to the Netherlands, to visit with her sister. She returned to Iran on July 5, 2025, when the children left the Netherlands with the father. In the mother's affidavit, she deposed that she had received a job offer in the Netherlands starting in September 2025, she had not yet accepted this job position and she made submissions that she is exploring other job opportunities as well.

[3] After the motion, I released an Endorsement on July 30, 2025, asking the mother to serve and file a supplementary affidavit by August 5, 2025, to answer whether a) she intended to accept the job in the Hague, Netherlands and if not, to give evidence as to the locations of the other job opportunities she has in September 2025. The mother filed a supplementary affidavit sworn on August 5, 2025.

Issue to be Decided on the Motion

[4] The issue for me to determine on this motion is whether Ontario has jurisdiction to make parenting decisions regarding the parties' two children, under s.23 of the Children's Law Reform Act, on the basis that the children would suffer serious harm if they were returned to Iran?

Background

[5] The parties were married in Iran on August 30, 2004.

[6] After marrying, the parties lived in Calgary, Alberta and attended the University of Calgary. Both children were born in Calgary.

[7] In March 2016, the family travelled to Iran to celebrate the New Year. The father returned to Calgary for work purposes. During the trip, the mother enrolled the children in Iran in daycare, unbeknownst to the father.

[8] The father returned to Iran in October 2016. Between October 2016 and early 2017, the parties argued over where the family should reside.

[9] In early 2017, the father obtained a job in Dubai.

[10] In March 2017, the father quit his employment in Dubai and returned to Iran to be with the mother and children.

[11] In November 2017, the father received a job offer in Toronto and he relocated without the mother and children. The mother and children remained in Iran. The parties were having marital difficulties at this time.

[12] In August 2018, the father asked the mother to come to Toronto and she refused. This is when the parties' separated.

[13] The parties executed a separation agreement on August 15, 2019. Paragraph 39 of the separation agreement states that "the law of the Province of Alberta will govern the interpretation of the agreement and the status, ownership and division of property between the parties whether either or both of them may from time to time reside." At the time the separation agreement was executed, the father lived in Toronto and the mother lived in Iran, which is reflected on the first page of the agreement. Alberta law was chosen to be the governing law because the parties' matrimonial home was located in Alberta.

[14] The separation agreement sets out that the parties have joint decision-making responsibility with the children residing primarily with the mother in Iran. The father's parenting time is set out to be whenever he travels to Iran, and six weeks during the summer months.

[15] The parties were divorced on December 4, 2019.

[16] The mother issued this Application on April 18, 2023, seeking, among other things, arrears of child support and ongoing child support, both table and s.7 expenses, from the father. Jurisdiction was not raised by the mother, nor was it raised by the father when he filed his Answer. At the time the Application was issued, the children resided with the mother in Iran, as they had been since March 2016.

[17] On December 11, 2023, the parties attended a case conference before Vella, J., at which the parties were ordered to produce financial disclosure, were granted leave for questioning and to bring motions for a s.30 parenting assessment, vary the child support under the separation agreement and vary the parenting provisions in the separation agreement. The issue of jurisdiction was not raised by either party or the court. The wife attorned to Ontario's jurisdiction.

[18] On June 10, 2024, the parties attended a Settlement Conference before Ramsay, J., at which the parties discussed parenting time and decision-making responsibility, which were in dispute. The issue of jurisdiction was not raised by either party or the court. The wife attorned to Ontario's jurisdiction.

[19] On October 24, 2023, the parties attended a Trial Management Conference before Sharma, J., where the issue of the Court's jurisdiction was raised for the first time. Sharma, J.'s Endorsement comments on the fact that the children have been in Iran since 2018; the parties' separation agreement states that the governing legislation is the Province of Alberta, despite the fact that the wife had consented to Ontario having jurisdiction over this matter.

[20] A further TMC took place before Hood, J. on April 22, 2025, who agreed with Sharma, J. that there was a jurisdiction issue that had to be addressed first.

The Parties' Positions

[21] The father argues that:

(a) The children are at risk of physical harm if they are returned to Iran given the current hostilities between Iran and Israel, the ballistic missiles going back and forth between Israel and Iran and the fact that there have been airstrikes impacting residential neighbourhoods less than 1 km where the children reside. Given that the children risk exposure to an ongoing war in the territory of Iran, the father argues they are at grave risk since it is an intolerable situation. He argues that the mother confirms this risk of harm since she left Tehran with the children on June 21, 2025, voluntarily.

(b) Living in a war-torn jurisdiction places the children at risk of psychological harm. He argues that the mother's affidavit evidence is that she, herself, is not intending to return to Iran and looking for employment elsewhere. Given these facts, the father submits that Ontario must take jurisdiction over the parenting matters.

(c) The children have told him that they want to relocate to Ontario.

(d) The children have strong ties to Ontario, they have a real and substantial connection to Ontario and even if they are in the care of the mother, there is no plan to return to Iran, in which case, Ontario is the only court which could take jurisdiction of this matter.

(e) The Iran legal system does not provide for a parenting schedule and decision-making regime that is comparable to Ontario's child-focussed, best interest approach such that there is a significant risk to the children's well-being if the parenting issues are left to be dealt with exclusively under Iranian law.

(f) He would not receive a procedurally fair hearing in Iran that would be based on the best interests of the children because the mother and her family are extremely well connected in Iran.

(g) The mother leaves the child alone to look after themselves for extended periods of time. The mother has told the children to keep secrets from the father about her having a new partner, which places them at risk of experiencing psychological harm.

[22] The mother argues that the children are in Ontario only because they travelled to have a regular holiday visit with the father. She argues that:

(a) All evidence regarding the children is in Iran not Ontario.

(b) Since the separation, the children have always resided primarily with her in Iran by the consent of the father. The father chose to relocate to Toronto without the children.

(c) When the father started these proceedings, the children were in Iran. He did not, at any point in time, seek an order that the children come to Ontario.

(d) For 6 years, the father consented to the children residing in Iran and travelling back and forth between Iran and Canada to see him. The children have resided in Iran for the past 9 years.

(e) The conflict between Israel and Iran appears to be over. Iran is not in a state of war. There have been no bombings, military mobilizations or hostilities between Iran and any other country since June 24, 2025.

(f) There is no state of war or conflict in the Karaj area, which is approximately one hour from Tehran, where she and the children reside.

(g) She intends to remain in Karaj for the next year and the children will return to their school normally in the Fall.

(h) If an emergency should arise, she would take immediate steps to remove the children from Iran, as she did in June 2025 when hostilities arose. She is able to travel to the Netherlands easily as her sister resides there. The children are always permitted in Iran to attend school virtually if such an emergency would arise.

(i) She does not live near a nuclear site in Iran and is not involved in the military or nuclear programs.

Does Ontario Have Jurisdiction Over the Parenting Issues in This Case?

[23] The fact that both parties participated in two conferences in this court and the mother did not raise jurisdiction as an issue does not, in and of itself, grant this Court jurisdiction to hear the matter since, jurisdiction cannot be conferred by consent, nor by a party's failure to raise the issue: Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality), 2025 ONCA 180 at para. 13.

[24] Section 23 of the Children's Law Reform Act, R.S.O. 1990, c.C.12 ("CLRA") states the court may exercise jurisdiction to make or vary a parenting order with respect to a child if,

a. The child is physically present in Ontario; and

b. The court is satisfied that the child would, on a balance of probabilities, suffer serious harm if:

i. The child remains with the person legally entitled to decision-making responsibility with respect to the child;

ii. The child is return to a person legally entitled to decision-making responsibility with respect to the child,

iii. The child is removed from Ontario.

[25] Section 23(a) is satisfied because at the time of the motion before me, the children were physically present in Ontario because they were spending parenting time with the father during the summer.

[26] Section 23 (b) of the CLRA is typically used in a case where a parent seeks an order for children not to be returned to their habitual residence on an emergency basis. The question for the Court to answer is whether the children would, on a balance of probabilities suffer serious harm if they returned to Iran with the mother?

Would the Children Suffer Serious Harm if They Were Returned to Iran?

[27] The term "serious harm" is not defined in the CLRA. However, the case law has found that "The legal test to establish serious harm to a child has been equated with the grave risk of harm test set out in Article 13(b) of the Hague Convention. The Act is intended to discourage parents from resorting to self-help in removing children from their habitual residence, without a Court Order, except in very limited circumstances"; Brown v. Pully, 2015 ONCJ 1986, at para. 195. In Thomson v. Thomson, the Supreme Court of Canada stated at paragraph 286 that the serious harm test is not significantly different than the extremely high legal test of harm under the Hague Convention.

[28] The interpretation of "serious harm" was clarified in the Court of Appeal case of Ojeikere v. Ojeikere, 2018 ONCA 371 (Ont. C.A.), at paras 62-64. Laskin J.A. took a holistic approach and considered three potentially relevant factors in determining "serious harm" which included: (i) risk of physical harm, (ii) the risk of psychological harm, (iii) the views of the children (if of an appropriate age) and (iv) a parent's claim that they will not return to the country of habitual residence even if the children are required to do so. The Court opined that the relevant factors will vary from case to case. In some cases, one factor may decisively show "serious harm"; in other cases, a combination of relevant factors may do so. The Court must address the likelihood and severity of the harm.

[29] When relying on the Article 13(b) defense, "the onus is on the person opposing the return of the child to establish a grave risk of harm or exposure of the child to an intolerable situation". The threshold required by Article 13(b) is very high. The grave risk of physical or psychological harm contemplated by Article 13(b) is harm to such a degree that it amounts to an intolerable situation. The Supreme Court in Thomson found that "the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another… not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm". Situations in which courts can refuse to return children to their habitual residence are exceptional. The use of the word intolerable means that for Article 13(b) to be successfully invoked it must be "an extreme situation, a situation that is unbearable; a situation too severe to be endured".

[30] The Ontario Court of Appeal in N v. F., 2021 ONSC 614, para. 79-83, further explained that the role of the Court under Section 23 of the CLRA is to determine whether the party invoking the section has established, on a balance of probabilities, that a child will suffer serious harm if an Ontario Court does not assume jurisdiction.

Analysis

[31] Under s. 23, an Ontario court has discretion to refuse to order a child's return to the child's place of habitual residence, in this case Iran. That discretion should be structured by a list of relevant factors. The relevant factors will vary from case to case. In some cases, one factor may decisively show "serious harm"; in other cases, a combination of relevant factors may do so. In this case, I have concluded that a combination of factors, taken together, do not give rise to a risk that the children would suffer serious harm if they were required to return to Iran.

[32] For determining "serious harm" for the parties two children, I have considered the potentially relevant factors to include:

a. The risk of physical harm

b. The risk of psychological harm

c. The views of the children

[33] The mother did not make a claim that she will not return to Iran even if the children are required to do so. This fourth factor is not relevant to my determination of whether Ontario should take jurisdiction of this matter.

Risk of Physical Harm

[34] The father has put two risks of physical harm forward if the children were required to return to Iran, namely, the children returning to a war-torn country and the children being left alone to care for themselves and cook meals for themselves.

[35] I find that:

(a) The children have resided in Iran since March of 2016.

(b) When the father relocated to Toronto, he consented to the children remaining in Iran with the mother.

(c) Once the separation took place, the parties consented to an agreement where the children would remain in Iran residing primarily with the mother, and spending holiday time with the father when he travelled to Iran and during the summer months.

(d) The father took no steps to have the children leave Iran until the mother commenced this claim for child support and even then, only in the past few months.

(e) The recent conflict between Israel and Iran involving air strikes from Israel began on June 13, 2025. There have been no bombings or military mobilization since June 24, 2025, when both Israel and Iran declared a ceasefire. There is currently no state of war declared in Iran.

(f) There is no independent evidence demonstrating that the children would suffer physical harm if they returned to Iran. In fact, the only evidence on record that comes from a place of personal observance and knowledge, is the evidence of the mother that things are calm in the Karaj area, which is approximately one hour from Tehran, where she and the children reside. She has been in Iran since July 5, 2025.

(g) There is no evidence that the children would suffer "grave risk" of harm or that the children returning to Iran "places the children in an intolerable situation."

[36] Accordingly, based on all of the above, if the children were returned to Iran, I find there are not at risk of any physical harm because of the conflict and military strike that took place in Iran from Israel in June of 2025.

Risk of Psychological Harm

[37] I do not find that the father has met his onus of establishing that the children are at risk of potential psychological harm if they return to Iran on the basis he claims, namely, because the mother leaves them alone to look after themselves for extended periods of time and/or because she has counselled the children to keep a secret from the father about her new partner.

[38] The mother's evidence disputes these two concerns raised by the father. Specifically, she deposes that she has never told the children to keep a secret from the father about her having a partner and that she has never left the children unsupervised for extended periods of time of "make themselves meals and care for themselves." Rather, she explains that she and the children live in a three-story building in Iran, with the maternal grandparents living on the upper level; the children and mother living in the middle level and her sister living in the same building when she is in Iran. She swears that everyone in the building is either family or trusted individuals. There is no evidence to the contrary on the record.

[39] There is a conflicted written record before me as to these two items but, in my view even if the children were told to keep a secret from the father by the mother, this does not meet the very serious threshold that they would suffer the kind of psychological harm if they returned to Iran, as contemplated by s.23 of the CLRA.

[40] The father also suggests that the children are at risk of psychological harm, because the legal system in Iran does not provide for a parenting schedule and decision-making regime that is comparable to Ontario's child-focussed, best interest approach such that there is a significant risk to the children's well-being if the parenting issues are left to be dealt with exclusively under Iranian law.

[41] The father further argues that the children would suffer psychological harm if they were returned to Iran because he would not receive a procedurally fair hearing there that would be based on the best interests of the children because the mother and her family are extremely well connected in Iran.

[42] For the legal system in Iran to qualify as "serious harm", that harm would have to be clearly established on the evidence. It is not enough to point to differences in the law and suggest that a parent may have different rights in a foreign jurisdiction vis-à-vis Ontario. The serious harm test in s. 23 of the CLRA, which was implemented to protect the safety of children, must not be reduced to a means for Ontario courts to prefer this province's system of justice over those of foreign jurisdictions under the guise of child safety: See N. v. F., at para 79. Accordingly, the fact that the law in Iran may not be as child-focussed or based on the children's best interests as it is in Ontario does not equate to the children suffering "serious harm" if the court in Iran has jurisdiction over parenting matters, as contemplated by s.23 of the CLRA.

[43] I do not find that the operation of the law in Iran, in and of itself, would cause psychological harm to the children, as proposed by the father.

[44] Further, there is no evidence on the record that the mother or her family have any influence over the procedural fairness of a legal proceeding in Iran. The father's suggestions in this regard are entirely disputed by the mother with no corroborating evidence.

The Views of the Children

[45] This is not a Hague Convention case, but the second clause of Article 13(b) states:

The judicial or administrative authority may also refuse to order the return of the child if it finds the child objects to being returned and ahs attained an age and degree of maturity at which is it appropriate to take account of its views.

[46] The second clause of Article 13(b) reflects the widespread international agreement that in jurisdictional disputes over custody, a mature child's objection to returning to the place of habitual residence should be considered. See Ojeikere, para. 77.

[47] I do not find that the father has met his onus of establishing that the children's views or preferences are an objection to returning to Iran and/or a desire to relocate in Toronto. A voice of the child report was not undertaken. There is no independent evidence before the Court of the children's views and preferences. There is no way to know if the father's affidavit reflects the children's independent views or, rather, were expressions of the children at a specific time. The father has provided untested hearsay evidence of things he claims the children have told him. In any case, even if a child told the father that they have a preference to relocate to Toronto, that does not mean that the children have expressed any view about the risk of psychological harm they would suffer if required to return to Iran, as was the case with the children in the Okeikere case.

[48] As stated above, the mother in this case has not taken the position that she will not return to Iran even if the children were ordered to return to Iran. Quite the opposite, the mother is in Iran, had deposed that she intends to stay there for at least another year and that the plan is for the children to return to their lives in Iran, including their school.

[49] I am mindful that one of the purposes of Part III of the CLRA is to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection.

[50] Based on my analysis of the serious harm test required by the Court under s.23 of the CLRA, I find that Ontario should decline jurisdiction over this matter and that the children should return to Iran since on a balance of probabilities the children would not suffer serious harm if returned to their mother in Iran.

ORDER

[51] This court makes the following order:

(a) The father's motion for a declaratory order that the Ontario Superior Court of Justice at 361 University Avenue, Toronto ON M5G 2T3 has jurisdiction to make parenting orders with respect to Mauhan Forootan, born September 7, 2012 and Baharan Forootan, Born November 10, 2015, is hereby dismissed.

(b) The parties are encouraged to settle the issue of costs. If they are unable to do so, the mother shall serve and file costs submissions in writing of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 7 days of the release of this Endorsement. The father shall serve and file written costs submissions of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 5 days of being served with the mother's costs submissions.

M. Kraft, J.

Date: August 6, 2025