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Family - Marriage. Haydarian v. Royal College of Dental Surgeons of Ontario
In Haydarian v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered an RHPA appeal from disciplinary decisions of the Royal College of Dental Surgeons of Ontario. In these quote the court considers whether parties were married in an Iranian legal context, here in the course of an RHPA disciplinary appeal:[1] Dr. Amir Abbas Haydarian appeals from a decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario (“the Panel”) dated January 20, 2023 (the “Decision”), the related penalty and costs decision dated May 9, 2023 and the supplementary reasons for the penalty and costs decision dated June 6, 2023.
[2] The Panel found that the appellant had engaged in sexual abuse of a patient, E.O., contrary to s. 51(1)(b.1) of the Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Code").
[3] The Panel rejected the appellant’s argument that he was sheltered by the exemption under s. 1(5) of the Code as he was married to E.O. when he had sexual relations with her.
[4] The Panel found that the appellant was still married to A.H. and that he was not divorced on October 19, 2018 when he requested a proxy in Iran to conduct a religious ceremony that would grant him a divorce. The Panel found that he was not married to E.O. despite his statement that he attended an un-officiated and non-religious ceremony with her. The Panel did not accept his argument that his marriage to E.O. was legal because it was “voidable or void” and he entered into it in good faith.
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Issue #1: Did the Panel err when it found that E.O. was not a spouse when the appellant had sexual intercourse with her?
[26] The appellant focuses on the definition of “spouse” in connection with admitted sexual relations on October 19, 2018. The overlooks the impact of the findings regarding September 6, 2018.
[27] No error has been shown in the Panel finding that the intimate relationship commenced between the appellant and E.O. in September 2018, before even the appellant submits they were married.
[28] There was extensive evidence that the appellant and E.O. had an intimate relationship commencing in September 2018. Moreover, the Panel accepted the evidence of E.O. in that regard and was entitled to make the credibility findings on the record before it.
[29] The evidence indicates the appellant obtained E.O.’s phone number from her patient form and called her to ask if he could come to visit her. He obtained her address through the patient form as well.
[30] E.O.’s evidence that they had sexual relations in September was accepted as was her evidence that they did not marry. She was consistent in saying that she wanted to be married in a Christian ceremony and would not and did not consider herself married until they were able to perform such a ceremony.
[31] E.O.’s photographs filed in evidence also provided corroboration that she and the appellant were engaged in a close and intimate relationship prior to October 19, 2018.
[32] The appellant did not show any palpable and overriding error regarding the finding that the appellant and E.O. were not spouses at the time they first had sexual intercourse in September 2018. This, alone, supports the finding of sexual abuse and resulting penalty.
[33] There is a spousal exception, which the appellant relies on for the events that commenced on October 19, 2018. Briefly, sexual intercourse or other forms of physical sexual relations between a member and a patient who is the member’s spouse is not, in itself, professional misconduct. Relevant to the case at hand, s. 1(6) of the Code defines “spouse” as the member’s spouse as defined in the Family Law Act. Section 1(1) of the Family Law Act defines “spouse” as follows:“spouse” means either of two persons who,
a) are married to each other, or
b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. Most of this appeal was focused on alleged errors by the Panel in the interpretation of the above exception, as it was applied to the events of October 19, 2018. However, given the above findings about September 2018, there is no need to address those issues.
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