MOTION HEARD: 2026-07-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mohamen Ali Mohamed, Applicant
And
Zeinab Mohamed, Respondent
BEFORE: Associate Justice Kamal
COUNSEL: Marie Fonour, for the Applicant
Endorsement
[1]. Mr. Mohamed brought an urgent motion request on July 16, 2026 seeking an order that one of his adult children (32 years old) be returned to his care.
[2]. Justice Naik endorsed that there was no evidence before the Court that Mr. Mohamed has legal authority to act on behalf of the adult child, Sharmarke. In the absence of such evidence, the Court has no jurisdiction to deal with the requested relief.
[3]. On July 20, 2026, Mr. Mohamed provided additional evidence by way of a supplementary affidavit. He provided some additional information related to being listed as a ‘legal trustee’ and a caregiver for the adult child, Sharkmarke’s finances.
[4]. Justice Naik noted that these documents do not establish that Mr. Mohamed acts as a substitute decision maker for Sharkmarke as relating to personal care. Nor has Mr. Mohamed commenced an Application in Family Court to properly deal with the parenting issues that he raises here.
[5]. The determination for urgency has returned before me again today with additional evidence.
[6]. He is seeking an order for compliance with an existing final order from 2000 and 2006, a declaration that the Respondent is in breach of the Final Order, and police enforcement.
Background
[7]. There is a Final Order dated December 18, 2000, which granted sole custody to the Applicant father with supervised access to the Respondent mother, for Mohamud Ali, who has now passed away; Hamza Ali and Sharmarke Ali, who is disabled and suffers from autism and is non-verbal.
[8]. There was a final Order dated November 21, 2006, which granted unsupervised access to the Respondent every Saturday from 4:00 pm to Sunday at 6:00 pm.
[9]. On July 4, 2026, Mr. Mohamed took Sharmarke to the Applicant Mother's residence for the weekend. Sharmarke sees his mother approximately three days per week. These visits usually go well, and Sharmarke returns to my care at the end of the visit without issue.
[10]. However, on July 7, 2026, the Applicant Mother refused to return Sharmarke to Mr. Mohamed’s care, and has ignored all of his attempts to reach her, including in person and by telephone.
[11]. Mr. Mohamed has concerns for the Applicant Mother's mental health status. She has a history of mental health issues that have previously interfered with her ability to care for the children. The court order required the Mother to provide Mr. Mohamed with a letter about her mental health every year. Mr. Mohamed says he has not received a letter from 2025 or 2026 despite numerous requests. However, as all of the children have reached the age of majority, this order no longer has effect.
[12]. More importantly, Mr. Mohamed is worried about Sharmarke's health. Sharmarke is diagnosed with Autism Spectrum Disorder, Pervasive Developmental Disorder, and experiences seizures. He is unable to carry out daily activities independently, such as bathing, eating, or managing finances on his own.
[13]. Sharmarke requires daily anti -seizure medication. Mr. Mohamed did not anticipate that he would need more than a few days' worth of medication while in his Mother's care. Mr. Mohamed believes that Sharmarke has run out of medication by now.
[14]. The Applicant Mother is refusing to respond to Mr. Mohamed’s requests to provide additional medication at her residence.
[15]. Sharmarke's medication greatly impacts his everyday health and well-being.
[16]. On the face of the previous orders, it was not clear which legislation the orders were made pursuant to – the Divorce Act or provincial legislation.
[17]. I was advised today that the parties were not married. This created an issue regarding the Court’s jurisdiction.
Jurisdiction
[18]. The Divorce Act defines “child of the marriage” in s. 2(1) to include someone who at the material time, “is the age of majority or over and under [the spouses’] charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life”
[19]. Counsel for Mr. Mohamed was relying on cases that interpreted and relied on this section of the Divorce Act. See D.F. v. R.W.F., 2025 ONCA 129 and J.F.R. v. K.L.L., 2024 ONCA 520.
[20]. The problem with Mr. Mohamed’s submission is that he advised me today that the parties were not married.
[21]. The definition being relied on only applies to children of married couples. Therefore, the Divorce Act does not apply.
[22]. The Children’s Law Reform Act does not include a definition of child, but section 18(3) specifically states that a reference in this Part to a child is a reference to the child while a minor.
[23]. As Sharmarke is now 32 years old, the parenting orders from 2000 and 2006 no longer apply.
[24]. This court does not have jurisdiction under legislation to make an order for compliance, enforcement or variation of the existing order. The Court also does not have jurisdiction to make a parenting order or residence order regarding this 32-year-old person under the family law legislation.
[25]. As an aside, I note that if the Divorce Act did apply, there is a procedure set out by the Court of Appeal in J.F.R. v. K.L.L., 2024 ONCA 520 that needs to be followed. This includes notice to the adult child of the marriage.
[26]. In the normal course, Sharmarke’s capacity for personal care and property would have been determined under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The SDA provides express procedural safeguards to preserve the presumption of capacity, including the requirement for service and appointment of counsel for the adult, pursuant to s. 3.
[27]. I note there is a specific procedure outlined in the Substitute Decisions Act, 1992.
[28]. I was advised by counsel for Mr. Mohamed that they were in the process of preparing an Application under the Substitute Decisions Act, but they thought this motion would have been quicker.
[29]. Expediency cannot replace legislative regimes.
[30]. As an Associate Judge, I preside over family and civil matters. Counsel advised they would be prepared to speak to the Court regarding the Substitute Decisions Act application by Tuesday. Accordingly, I have allowed Mr. Mohamed and his counsel to attend before me on Tuesday, July 28, 2026 at 11:00 am to speak to the Substitute Decisions Act application.
Associate Justice Kamal
DATE: July 24, 2026