Foreign Custody Orders in Ontario

Not on its own. A parent has to apply to an Ontario court, which must recognize a custody or parenting order made elsewhere unless one of five grounds in section 41 of the Children's Law Reform Act applies, such as no notice to the other parent. Once recognized, it is enforceable like an Ontario order, and if the child now lives here, a court can later replace it after a material change. The five grounds, and the rules for replacing an order, are set out below.

Ontario law no longer speaks of custody and access. Since March 1, 2021 the Children's Law Reform Act uses decision-making responsibility, parenting time and contact, and our main page on parenting decision-making in Ontario explains those terms. An order made by a court or tribunal outside Ontario that deals with any of them is an "extra-provincial order" (s. 18(1)). The same rules apply whether the order comes from Iran, Türkiye, the United States or another Canadian province, and they apply whatever the order calls itself, custody, guardianship or something else.

This guide explains Ontario law only. It does not describe Iranian law, and questions about how an order is made or enforced inside Iran need a lawyer qualified there. It is part of our set of guides for Persian-speaking families in Toronto, because orders from Iran come up often when a family has lived in both countries.

How does an Ontario court recognize a foreign order, step by step?

Asking an Ontario court to recognize a parenting order made outside Ontario
Step	What happens	Rule
1. Get a certified copy	A copy certified as a true copy by the judge, registrar or the person who keeps the court's orders is proof of the order and its content unless someone proves otherwise	Children's Law Reform Act (CLRA), s. 44
2. Translate it	Ontario courts work in English or French, so plan on a certified English translation of an order written in Persian	Ontario, court interpreter page
3. Choose the court	A case about parenting starts in the municipality where the child habitually lives; in an emergency, such as an immediate danger that the child will be removed from Ontario, it can start anywhere and is then transferred	Family Law Rules, r. 5(1)(b) and 5(2)
4. Apply and serve	The person the order favours applies; the other parent is served and may answer, with 60 days to do so if served outside Canada or the United States	CLRA, s. 41(1); Family Law Rules, r. 10(2)
5. The court checks five grounds	Notice, a chance to be heard, best interests, public policy and jurisdiction; the court may take notice of foreign law without formal proof	CLRA, ss. 41(1) and 45
6. Recognition and enforcement	A recognized order is deemed an order of the Ontario court and enforceable as one; the court may add orders needed to give effect to it	CLRA, s. 41(2) and (4)

Recognition is not a fresh hearing about which parent is better for the child. Section 41 says the court "shall recognize" the order unless it is satisfied that one of the listed grounds applies. The deeper question of what is best for the child comes back if a parent asks the Ontario court to replace the order, which is covered further down. In Toronto, which courthouse hears the application depends on the issues and on where you live; our guide to which Toronto family court handles your case explains the split.

When can an Ontario court refuse to recognize the order?

The five grounds in section 41(1) of the Children's Law Reform Act
Ground	What the court asks
(a) Notice	Was the parent opposing recognition given reasonable notice that the case had started?
(b) A chance to be heard	Did that parent have an opportunity to be heard before the order was made?
(c) Best interests	Did the law of the place where the order was made require the court there to have regard for the child's best interests?
(d) Public policy	Is the order contrary to public policy in Ontario?
(e) Jurisdiction	If the foreign court had been an Ontario court, would it have had jurisdiction under section 22, mainly because the child was habitually resident there when the case began?

The jurisdiction ground is often the decisive one when a family has moved. Under section 22(2) a child is habitually resident where the child last lived with both parents, or with one parent under a separation agreement, with the other parent's consent or acquiescence, or under a court order. So if a child had already settled in Ontario with both parents' agreement before a case was started abroad, the foreign court would not have had jurisdiction by Ontario's measure, and recognition can be refused.

Grounds (c) and (d) look at the content of the foreign law and the order. The Government of Canada's travel advice for Iran states that children of a male Iranian national, including Canadian-Iranian children, are in the sole custody of their father under Iranian law. Whether a particular order from Iran meets section 41 is decided by the Ontario court on the evidence in that case, and section 45 lets the court take notice of foreign law and foreign decisions without requiring formal proof.

Can an Ontario court replace a foreign order?

Yes, in two situations. Under section 42, a court may supersede an extra-provincial order if there has been a material change in circumstances that affects, or is likely to affect, the child's best interests, and either the child is habitually resident in Ontario when the application starts, or the child is in Ontario, no longer has a real and substantial connection with the place where the order was made, and the other conditions in section 42(1)(b) are met. The court may decline if it thinks the case belongs elsewhere (s. 42(2)). Under section 43, a court may supersede the order if the child would, on the balance of probability, suffer serious harm by staying with, or being returned to, the person entitled to decision-making responsibility, or by being removed from Ontario.

A new Ontario order is made only on the child's best interests, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being (CLRA, s. 24(2)). The factors include the child's cultural, linguistic, religious and spiritual upbringing and heritage (s. 24(3)(f)) and any family violence (s. 24(3)(j)); our guide on how family violence affects parenting decisions covers that factor in detail. If two foreign orders conflict, the court recognizes the one that appears most in accord with the child's best interests (s. 41(3)).

What if there is no order, or a child was brought here without consent?

Section 41 applies to orders. Where a parent relies on a rule of foreign law rather than on an order made by a court or tribunal, there is nothing to recognize, and an Ontario court that has jurisdiction under section 22 decides parenting time and decision-making responsibility on the child's best interests. Our page on parenting time in Ontario explains how schedules are set once a court is deciding.

Moving a child without consent does not move the case. Removing or keeping a child without the consent of everyone with decision-making responsibility does not change the child's habitual residence, unless the other parent acquiesces or unduly delays going to court (s. 22(3)). If a child has been wrongfully removed to or kept in Ontario, the court can make an interim order, stay the case on condition that a case is started abroad, or order the child returned and the costs of travel paid (s. 40). Between countries that have joined the Hague Convention on child abduction, a parent can also ask for the child's return under that treaty, which is law in Ontario through section 46. Iran is not a party, so that route does not exist between Canada and Iran.

Does an Ontario order count in Iran?

Not automatically. The Government of Canada states that Iran does not automatically recognize the orders of Canadian courts in family law matters, and that children of an Iranian father need his permission to leave Iran. That is why the planning happens before a trip, not after it. Read whether a parent can take your child to Iran without your consent for the orders an Ontario court can make about passports and travel.

What changes the answer?

Where the child lived when the foreign case began. That decides ground (e), measured by the habitual residence test in CLRA s. 22(2).
What notice the other parent received. Grounds (a) and (b) protect a parent who was not told about the case or had no chance to respond (s. 41(1)(a) and (b)).
The foreign law and the order's content. Grounds (c) and (d) turn on whether best interests had to be considered and whether the order offends Ontario public policy.
Whether the child is in Ontario now. Physical presence plus a risk of serious harm opens sections 23 and 43, even where another order exists.
Whether something has changed since the order. A material change affecting the child is the gateway to section 42.
Whether it is an order or an agreement. A clause about decision-making responsibility or parenting time in a marriage contract is not enforceable in Ontario (Family Law Act, s. 58(c)), so a term in a marriage certificate or mahr about the children does not bind an Ontario court. Our guide on whether a mahr is enforceable in Ontario explains what such a contract can cover.
Whether the order is from another province under the Divorce Act. A parenting order made under the Divorce Act has legal effect throughout Canada and can be registered in any provincial court and enforced like that court's own order (Divorce Act, s. 20(2) and (3)).

A worked example

For example, imagine a mother and her eight-year-old son who moved from Isfahan to Thornhill three years ago, with the father's written agreement, while the father stayed in Iran. Last year the father obtained an order in Iran giving him custody. The mother says she was never told about that case. The father now applies in Ontario to have the order recognized.

Because the child lives in York Region, the application belongs in the Family Court in Newmarket; our guide to how York Region family cases work describes that court. The mother's lawyer gathers proof of the move and the father's written agreement, and evidence of how she learned about the Iranian order. The court would look at grounds (a) and (b) on notice, and at ground (e): the son had lived in Ontario with the father's consent for two years when the case in Iran began, which goes to whether a court in Iran would have had jurisdiction by Ontario's measure. Separately, the mother can ask for her own parenting order, because the child is habitually resident in Ontario. This is a hypothetical walk-through of the rules, not a prediction of how any court would decide.

What mistakes do parents make with foreign orders?

Treating a foreign order as if it were already an Ontario order. It is deemed an Ontario order only once a court recognizes it (s. 41(2)).
Ignoring notice of a case abroad. The notice and hearing grounds protect a parent who had no notice or no chance to be heard; a parent who was served and chose not to respond may find them harder to use.
Bringing a child to Ontario without consent and expecting Ontario to take over. The child's habitual residence does not change, and the court can order a return (ss. 22(3) and 40).
Waiting. Undue delay in starting a case can count against the parent left behind (s. 22(3)).
Filing an uncertified photocopy or an untranslated order. A certified true copy carries its own proof (s. 44).
Relying on a family or religious agreement as if it were an order. It is not an extra-provincial order, and a contract term about parenting is not enforceable in Ontario.

What to do this week

Ask the court that made the order for a certified true copy of it, and of the file if you can.
Arrange a certified English translation of every document in Persian.
Write a dated timeline: where the child lived, who agreed to each move, when each case started and when you learned of it.
Keep any proof of how you were, or were not, notified of the case abroad.
If there is a risk that the child will be taken out of Ontario, ask about an urgent case under Family Law Rules, r. 5(2), and read our guide on children's travel.
Book a consultation; you can discuss the matter in English, Persian (Farsi) or French.

Frequently asked questions

Does a parenting order from another Canadian province count in Ontario?

An order made by a court in another province under that province's own law is an extra-provincial order and goes through the same section 41 process as one from another country. An order made under the federal Divorce Act already has legal effect throughout Canada and can be registered and enforced in an Ontario court (s. 20).

Does the Ontario court rehear the whole case?

Not on a recognition application. The court must recognize the order unless one of the five grounds applies. A full best-interests decision happens only if a parent asks the court to replace the order under section 42 or 43, or if there is no order to recognize.

Do I need expert evidence to prove the law of Iran?

Not always. Section 45 lets the court take notice of the law of a place outside Ontario, and of a decision of a foreign court, without formal proof. Whether more evidence is needed depends on the issue in dispute.

Will the court listen to my child's views?

When the court makes its own parenting order, the child's views and preferences are one of the best-interests factors, given due weight for the child's age and maturity (CLRA, s. 24(3)(e)). Our guide to the Office of the Children's Lawyer explains how a child's views reach the court.

Can an Ontario court refuse to decide and send us back to Iran?

It can decline jurisdiction if it considers that the matter is more appropriately dealt with outside Ontario (CLRA, ss. 25 and 42(2)). One purpose of the Act is to avoid courts in two places deciding the same child's case at once (s. 19(b)).

Can I have a Persian interpreter at the hearing?

In a family case, Ontario provides an interpreter in a language other than French if you qualify for a fee waiver or the court orders it. Tell the court early so an accredited interpreter can be booked. Our guide to Farsi court interpreters explains the request.

Is a supervised visit possible while the dispute is decided?

An interim order can set conditions on parenting time where the court considers it in the child's best interests. Our guide to supervised parenting time in Toronto explains how those visits work in practice.

Does a custody order from Iran or another country count in Ontario?