Court of Appeal for Ontario

CITATION: Chitsabesan v. Yuhendran, 2016 ONCA 103

DATE: 20160205

DOCKET: M45936 & M45942 (C59537)

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Janani Nicola Chitsabesan

Applicant (Responding Party/ Moving Party by way of cross-motion)

and

Ajanthan Yuhendran

Respondent (Moving Party/ Responding Party by way of cross-motion)

Counsel:

Steven M. Bookman, Gillian H. Bookman and Jasmine Jadubir, for the moving party/responding party by way of cross-motion

Michael G. Weissenborn, for the responding party/moving party by way of cross-motion

Heard: January 7, 2016

By the Court:

[1] The appellant husband’s motion for interim access and the respondent wife’s cross-motion to dismiss his motion were heard with the appeal. The appeal was taken under reserve and the appellant’s motion was allowed for reasons to follow to be released together with the reasons on the appeal.

[2] Under appeal was the decision of the Superior Court of Justice upholding the November 13, 2013 decision of the Ontario Court of Justice awarding custody of the child born June 14, 2012 to the respondent and allowing her to relocate to England with the child. The Superior Court of Justice returned the access issues to the Ontario Court of Justice “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with as completely as the judge desires in her reasons for decision or in the order itself.” The Ontario Court of Justice then issued a decision dated May 6, 2015 that restricted the appellant’s access to the child to six weeks a year in one-week blocks except for the summer when he is to have one week at the end of July and two weeks at the end of August.

[3] In this motion, the appellant moved for access to the three-year-old child from January 12, 2016 to February 4, 2016. The appellant wishes to bring his daughter to Toronto so she can continue to develop a close and lasting relationship with his mother (her paternal grandmother) and other paternal relatives. He noted the significant cost of purchasing three return air tickets to exercise each one-week access period under the trial judge’s May 6, 2015 order. Three tickets are necessary since the child is too young to travel alone and he must fly to London, return with the child, fly back to London with the child and then return to Toronto alone. In addition, he points out that exercising access in England is difficult because of the cost of accommodation in London.

[4] The respondent opposed the requested access because it would interfere with the three-year-old child’s nursery school attendance from 8:45 a.m. to 11:45 a.m. Monday to Friday. She relied on the school’s policy, which, understandably, stresses the importance of attending school regularly. She pointed out that under the policy the teacher is not able to authorize a leave of absence “for the purpose of a family holiday”. It is not clear to us that the school would consider absence due to access by a non-custodial parent to be a “family holiday”. We note the policy allows the teacher to authorize an absence in “exceptional circumstances” when requested in writing, a provision the respondent did not draw to our attention.

[5] No matter what may be the school’s policy regarding an absence for parental access, in our view it is not in the best interests of the three-year-old child to consider attendance at this half-day program more important than fostering a meaningful relationship with the child’s father and his family. It is always in the best interests of the child to have a healthy relationship with both parents. Where the parents live so far apart that access with the non-custodial parent cannot take place regularly, compelling reason should be shown why longer periods of access are not appropriate.

[6] We note that on December 22, 2014, Pardu J.A. ordered interim access for a block of five weeks from December 28, 2014 to February 2, 2015. The respondent, in her affidavit opposing the motion, does not indicate any difficulties or inconvenience associated with that interim access.

[7] The respondent also submitted that granting the requested access would conflict with the trial judge’s May 6, 2015 order. As explained in the reasons for our decision on the appeal, that order was made without jurisdiction and is a nullity. The order governing access is the trial judge’s order November 13, 2013. That order does not restrict access to one-week blocks.

[8] The appellant’s motion is allowed and the respondent’s motion is dismissed.

Released: February 5, 2016 (RGJ)

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”