Court File and Parties

Court File No.: FS-19-239-00 Date: 2023 10 11 Superior Court of Justice - Ontario

Re: S ARANA, Gurnam Singh et al. , Applicants And: B AINS, Jagmit Singh , BAINS, Deesho; Respondents

Before: The Honourable Justice Fragomeni

Counsel: L AGOUDIS, Joanne , For the Applicants M AKKAR, Harpreet Singh; DHALIWAL, Harinder , For the Respondents

Heard: October 5, 2023

Endorsement

[1] The Applicants bring a Motion for security for costs in the amount of $30,000.00 payable by the added party, Deesho Kaur Bains (Deesho).

[2] Deesho is bringing a Motion on a date yet to be scheduled to set aside the Final Order of Miller J., dated May 19, 2023.

[3] Justice Miller’s order was on consent and sets out the following terms, in part:

JURISDICTION

1. The Respondent, Jagmit Singh Bains (hereinafter known as “Jagmit”) attorns to the jurisdiction of the Ontario Superior Court of Justice on all claims involving the child, Sareen Kaur Bains (hereinafter known as “Sareen”), born March 1, 2016 pursuant to s. 22(1) of the Children’s Law Reform Act.

2. By no later than May 15, 2023, Jagmit shall return Sareen to Brampton, Ontario, Canada.

3. Sareen’s primary residence shall be with Jagmit in Ontario.

4. Upon her return to Canada, Sareen shall immediately be enrolled into public school.

DECISION-MAKING RESPONSIBILITY

5. Jagmit shall have sole decision-making authority over Sareen and shall keep the Applicants, Gurnam Singh Sarana and Balvinderjit Kaur Sarana (hereinafter known as “Gurnam and Balvinderjit”), informed of any major decisions related to Sareen’s health and education.

CONTACT

6. Gurnam and Balvinderjit shall have contact with Sareen on the following graduated schedule: a. For a period of two (2) months following her return to Canada, on alternate weekends (either Saturday or Sunday) for a period of six (6) hours, and at any other times that the parties may agree. b. Upon completion of the contact time in Paragraph 6(a) above, and for a period of another two (2) months thereafter, alternate weekends (either Saturday or Sunday) for a period of eight (8) hours and at any other times that the parties may agree. c. Upon completion of the contact time in Paragraph 6(b) above and upon mutual agreement between the parties, contact time with Gurnam and Balvinderjit may be increased to include overnights on the alternate weekends. Until such time as there is a new contact arrangement, the contact time in Paragraph 6(b) above shall continue.

7. The date and time of the contact time shall be confirmed by no later than 2:00 p.m. on the Friday of that weekend.

8. The pick-ups and drop-offs of Sareen shall be shared by the parties.

9. Jagmit shall make best efforts not to schedule events or make other plans during the Applicants’ contact time. In the event that plans are made, the parties shall arrange for make-up time.

10. If requested by Jagmit, Gurnam may assist Jagmit with taking Sareen to school in the morning and picking her up from school in the afternoon. Gurnam shall then return Sareen to Jagmit once Jagmit returns from work. The pick-ups and drop-offs may be done by Gurnam or if he is not available, by his son/the Respondent, Kamaldip Sarana (hereinafter known as Kamaldip”).

11. Neither party shall directly, or indirectly interfere with the other’s relationship with Sareen, including but not limited to making any disparaging remarks in the presence of Sareen about the other party or other party’s family.

12. If Gurnam and Balvinderjit are travelling outside of Canada, there shall be video contact with Sareen subject to all of the parties and Sareen’s availability. Contact shall continue according to the schedule so long as both Gurnam or Balvinderjit are in Canada.

TRAVEL

13. Neither Gurnam nor Balvinderjit shall travel with Sareen outside Canada without the prior written consent of Jagmit or Court Order. They shall provide a notice of such proposed travel, with complete itinerary, return ticket, contact information and purpose of travel to Jagmit at least 45 days, or as soon as practicable, in advance of the departure date.

14. If Jagmit wishes to travel with Sareen outside of Canada (excluding the United States), he shall provide Gurnam and Balvinderjit with at least 30 days notice, or as soon as practicable, an itinerary and proof of a return ticket.

15. If Jagmit’s travel time is during the weekend of contact time with Gurnam and Balvinderjit, Jagmit shall arrange for Sareen to have a video or phone call with the them during such travel weekend.

[4] Deesho will also be proceeding with a Motion for an Order that the proper jurisdiction to deal with the issue relating to the child Sareen is India.

[5] The within proceeding was commenced by the Applicants on October 23, 2019. The Applicants were seeking custody, primary residence and access to their granddaughter Sareen born March 1, 2016. Sareen had been residing with them since the Respondent, Jagmit Singh Bains, separated from Sareen’s mother, Manip Kaur Bains, on April 22, 2017. Mandip passed away on August 29, 2019 at the age of 38.

[6] Without notice to the Applicants, Jagmit took Sareen to India in January 2020 and has never returned her to Ontario. Sareen has been living in India since January 2020, almost four years.

[7] Jagmit failed to comply with the terms of Justice Miller’s Order that Sareen would be returned to Ontario by no later than May 15, 2023. As a result, Sareen continues to reside in India. A Motion for Compliance with the Court order was brought against Jagmit. After serving the compliance Motion on Jagmit, his mother, Deesho, commenced an application with a court in India to be declared as Sareen’s guardian.

[8] Deesho is seeking to set aside the final order on the grounds that she was not provided notice pursuant to Rule 25(19)(a) of the Family Law Rules and that the Superior Court of Justice lacked jurisdiction to deal with the issues relating to Sareen.

[9] The Applicants submit at this Motion that Deesho’s Motion is without merit, is a nuisance, and a waste of judicial resources, and that she failed to take any steps to assert a claim in India or Ontario until after the Applicants brought their compliance motion against Jagmit.

[10] In her Endorsement dated August 18, 2023 Justice Dennison sets out the background of this matter and I do not intend to do so again in these reasons. The issue to be determined by Justice Dennison was whether Deesho had standing. At paras 32-38 Justice Dennison sets out the following:

[32] I am satisfied that the paternal grandmother had an interest in the motion regarding S.B. returning to Canada and that the paternal grandmother was affected by the outcome of the motion as S.B. may no longer reside with her. I also find that the paternal grandmother has an interest in bringing a motion to set aside the order. These factors weigh in favour of granting the paternal grandmother standing.

[33] The parties agree that Rule 7(4) of the Family Law Rules applies in determining if the paternal grandmother has standing. The rule states that “every parent or other person who has care and control of the childinvolved…shall be named as a party, unless the court orders otherwise” in cases involving decision-making responsibility, parenting time and contact with respect to a child.

[34] I am satisfied that the paternal grandmother has demonstrated that she has care and control of S.B. and therefore should be granted standing for the following reasons.

[35] First, S.B. was under the care of her paternal grandmother for various periods over the past three and a half years. S.B. was alone with her grandmother from July 2020 to November 2021 (15 months) she was then alone with her from February 2022 to January 2023 (10 months) when S.B.’s father was not in India. During that time the paternal grandmother took care of S.B. on a day-to-day basis. The paternal grandmother found her a local tutor during COVID-19 and enrolled her at school. She assisted S.B. with schoolwork as it was online during COVID-19. She also bought a puppy for S.B. to play with. The paternal grandmother also takes S.B. to the family doctor when needed. The paternal grandmother dealt with the day-to-day care and decisions related to S.B.

[36] Second, I am satisfied that the paternal grandmother did not have notice of the agreement reached in the Minutes of Settlement that S.B. was to return to Canada. I accept the information contained in the father’s affidavit about when he told his mother that S.B. was to return to Canada. The information provided by the maternal grandparents does not directly contradict this. Their evidence as to what the paternal grandmother knew was vague and imprecise.

[37] Third, the paternal grandmother has relevant information to give regarding the best interests of S.B. given that she has taken care of her on a day-today basis for extended periods of time.

[38] Fourth, the fact that the father submits that he has care and control does not mean that the paternal grandmother does not also have care and control. More than one person can have care and control over a child.

[11] At paras 43 Justice Dennison concludes:

[43] For these reasons, the paternal grandmother is granted standing to bring her motions to set aside the parenting order and to assert that Ontario does not have jurisdiction.

[12] It is important to note that in determining the issue of security for costs in this case, the best interests of the child are paramount.

[13] In Hodgins v. Buddha, 2013 ONCJ 137 the Court noted the following at para 19:

[19] In cases involving custody and access, where the best interests of the child are the paramount consideration, it has been held by a number of courts that security for costs should only be granted in exceptional circumstances[3]. As Justice Peter B. Hambly states in Schumilas v. Porter-Schumilas, 2009 ONSC 55361, 76 R.F.L. (6th) 294, [2009] O.J. No. 4209, 2009 Cars­well­Ont 6166 (Ont. S.C.) at paragraph [30] of that decision, while it is true that a party’s position in a custody and access case may be unreasonable and lacking merit, “it can never be a waste of time or a nuisance for a court to concern itself with the custody of a young child.” Justice A. Thomas MacKay states the following in Bragg v. Bruyere, 2007 ONCJ 515, 45 R.F.L. (6th) 226, [2007] O.J. No. 4341, 2007 Cars­well­Ont 7239 (Ont. C.J.):

[5] Courts are justifiably cautious in ordering security for costs in family litigation where the best interests of the children are paramount. The court does not wish to see the merits of the case determined by a party’s inability to post security for costs. However, in appropriate circumstances, the court may make such an order.

[14] In Ascani v. Robert, 2014 ONSC 450 the Court, in following Hodgins stated at para 61 :

[61] In the present case, the Court is not satisfied that this case is a waste of time or a nuisance, particularly as it relates to the best interests of the child.

[15] In Krzewina v. Beaumont, 2021 ONCJ 351 the Court stated the following at para 26:

[26] Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims: Izyuk v. Bilousov, supra, at para. 37. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders – something, for example, to which a party is entitled respecting child support orders if there has been a change in circumstances. See: Gauthier v. Gauthier, 2019 ONCA 722.

[16] I am not satisfied that the Applicants have demonstrated on this evidentiary record that Deesho’s Motions are a waste of time or a nuisance.

[17] The child has been living in India since January 2020, almost four years. The child has been living with Deesho. Deesho sets out that the child is happy and well taken care of in India. She is doing well in a reputable private school.

[18] All of this evidence will have to be testified and I make no findings or comments about the merits of Deesho’s motions. That is not before me and it will be left to the Motions judge to make that determination.

[19] My only task at this motion is to determine whether security for costs is appropriate. I am not satisfied that it is. Deesho’s participation in this litigation is necessary, probative, and relevant to the best interests of Sareen.

[20] In all of these circumstances the Motion is dismissed.

[21] In the event that the parties are unable to resolve the issue of costs of this motion the following timeline shall apply:

1. The respondent Deesho Bains shall serve and file her written costs submissions within 10 days.

2. The Applicants shall serve and file their responding written costs submissions within 10 days thereafter.

3. The Respondent Deesho Bains shall serve and file any reply within 5 days thereafter.

Fragomeni J. DATE: October 11, 2023