Court of Appeal for Ontario

Date: 20220125 Docket: C69436

Pardu, Roberts and Miller JJ.A.

Between

Arun Pal Applicant (Respondent)

and

Tanya Bhatia Respondent (Appellant)

Counsel: Michael H. Tweyman, for the appellant Arun Pal, acting in person

Heard: January 21, 2022 by video conference

On appeal from the order of Justice Jayne E. Hughes of the Superior Court of Justice dated April 6, 2021, with reasons reported at 2021 ONSC 2483.

Reasons for Decision

[1] This appeal concerns minor modifications made to a final order respecting parenting and child support issues. The parties separated in 2013 after less than five years of marriage. Their only child, A., is now 11 years old. Since their separation, the parties have been embroiled in high conflict litigation.

[2] A final court order was made on September 15, 2015 (“the September 15, 2015 order”). The respondent initiated a motion to change the September 15, 2015 order in September 2017, raising compliance issues, particularly in relation to his parenting time with A. The proceedings were closely case managed by the motion judge who made a series of temporary orders to reduce the exposure of A. to parental conflict and assist the parties in coming to a resolution of their dispute. At the motion judge’s direction, the Office of the Children’s Lawyer prepared an updated report to account for A.’s age and new stage of development.

[3] With the consent of the parties, the motion judge ordered the matter to proceed by summary judgment before her, explaining the impetus for the order in her endorsement of September 29, 2020, as follows:

Both parties and counsel for the Respondent Mother, Reginald McLean, agree that this is not a matter that should proceed to trial. The parties reached agreement on the principles of a parenting plan on a number of occasions with the assistance of the court and counsel but have been unable to finalize the specific terms of the Minutes of Settlement. I agree with counsel’s assessment that it is essentially tweaking and tinkering but the parties have been unable to conclude a final agreement. It is agreed that none of the tweaking and tinkering impacts the Applicant Father’s child support obligation, and the maximum principles had been reviewed and is understood by the parties. To save further time and expense, and to avoid the damage to the co-parenting relationship of the parties a trial is likely to cause, the parties have agreed that the matter should be scheduled for a summary judgment motion. [Emphasis added.]

[4] Both parties sought minor amendments to the September 15, 2015 order. The motion judge made minor amendments to the respondent’s parenting time, to child support, and to the shared Christmas holiday schedule. Given the mixed success on the issues, the motion judge made no order as to costs.

[5] The appellant raises the following issues on appeal:

i. The motion judge erred in making any change to the September 15, 2015 order without addressing the threshold issue of material change in circumstances. ii. The motion judge erred in deciding the matter after being the case management judge and hearing a settlement conference. iii. The motion judge erred in failing to give effect to the parties’ admissions regarding regular parenting time at the first appearance on the motion. iv. The motion judge erred in failing to give proper weight to the child’s views and preferences.

[6] We do not accept these submissions.

[7] The first two issues have no merit and ignore the parties’ express consent to the procedure followed by the motion judge. There was no unfairness or prejudice. Rather, this was a sensible and practical way to proceed, given the motion judge’s long involvement in this matter and the minor nature of the amendments that both parties had requested.

[8] As already indicated, the parties agreed that the motion judge should determine by way of summary judgment the very few issues that were outstanding in order to avoid the cost and delay of a trial and further damage to their co‑parenting relationship. We do not accept the appellant’s submission that she merely “acquiesced” or was “dragged along”. That is not what happened.

[9] The appellant was represented at all times by counsel (not appeal counsel) who never made any objection to proceeding by way of summary judgment or before the motion judge. Nor did he raise any issue about a material change in circumstances or any other impediment to the motion judge determining the motion. On the contrary, he gave the appellant’s consent to proceed in this manner and then sought amendments to the September 15, 2015 order on her behalf.

[10] With respect to the third and fourth issues, the motion judge made no error. There was no firm agreement between the parties on the respondent’s parenting time before the motion was determined and, in any event, the motion judge was not bound by the parties’ negotiations. She had to consider what was in A.’s best interests, particularly in the context of high-conflict litigation where, as the motion judge noted, the parties “had been struggling for many months to finalize the terms of a final order and had reached an impasse.”

[11] The motion judge’s decision on the merits is unassailable. She carefully reviewed the parties’ respective submissions on each of the issues presented for determination. Her reasons on each issue show a sensitive and practical approach grounded in the evidence, relevant legal principle, and pointedly, A.’s best interests. Her decision was clearly designed to provide A. with the consistency that both parties agreed was important and to reduce his exposure to the conflict between his parents. We see no error in her conclusions.

[12] The respondent has brought a motion to submit fresh evidence. It does not affect the outcome of this appeal. We do not admit it.

[13] For these reasons, we dismiss the appeal.

[14] The respondent does not seek any costs. We order no costs of the appeal.

“G. Pardu J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”