CITATION: Dhaliwal v Dhaliwal, 2021 ONSC 3258
DIVISIONAL COURT FILE NO.: 43/21
DATE: 20210430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Penny, McKelvey and Newton
BETWEEN:
HARJIT DHALIWAL
Applicant (Appellant)
AND
AMANDEEP DHALIWAL
Respondent (Respondent in Appeal)
Christopher J. Haber, for the Applicant (Appellant)
Ruth Kalnitsky Roth, for the Respondent (Respondent in Appeal)
HEARD (by video conference): April 30, 2021
Penny J. (Orally)
[1] Ms. Dhaliwal appeals the temporary order of the motions judge (Ramsay J.), dated January 5, 2021, dealing with parenting time and certain procedures for the sale/exclusive possession of the matrimonial home. The Appellant alleges that the motions judge did not grant her an adjournment in order to enable her to attend the motion personally and that the motion judge failed to consider the best interests of the children in the parenting time and other orders that he made.
[2] The Appellant had filed an extensive affidavit on the motion and was represented by counsel. There was, prior to the return of this motion (which was a motion by the Respondent for increased parenting time and the implementation of a prior order for the sale of the matrimonial home), a substantial history of delay caused by the Appellant’s requests for four adjournments and failure to co-operate in the implementation of the sale order. The scheduling for this motion was fixed by Court order. We find no error in the exercise of the motions judge’s discretion to proceed with the motion in the absence of Ms. Dhaliwal in the circumstances of this case.
[3] Although the words “best interests of the children” were not used in the motion judge’s endorsement, it is clear that the motion judge was aware of, and applied, that test. We are satisfied that the reasons of the motions judge reflect consideration of the best interests of the children and that he considered the positions of the parties about the childrens’ best interests. This included a reasoned assessment of the allegations of substance abuse and the Respondent’s evidence regarding his treatment, sobriety and ability to parent, which the motion judge found credible and accepted. There is no basis to set aside the order for shared parenting time on this ground.
[4] The motion judge also made orders in furtherance of the prior order of June 26, 2020 for the sale of the matrimonial home. The June 26 Order contained a lengthy and detailed review of the parties’ circumstances, including employment and income, and the reasons why the sale of the home was in the parties’ and the childrens’ best interest. The evidence clearly supports the Appellant’s ongoing delays and interference with the implementation of the June 26 sale order. The orders made by the motion judge concerning the sale of the matrimonial home, and exclusive possession granted for that purpose were, in our view, entirely appropriate in the circumstances.
[5] Finally, the Appellant complains that the motion judge failed to deal with arrears of child support. There was no motion before the motion judge for this relief. The motion judge specifically reserved to the parties the right to seek adjustments to child and spousal support. There is no basis to interfere with the motion judge’s order on this issue.
[6] The appellant has not shown any error of law or palpable and overriding error of fact in the motion judge’s decision. The appeal is dismissed.
[7] We would make one timing adjustment to the order due to the delay caused by this appeal and a change in circumstances. The property is now listed and is being shown. Accordingly, we order the deferral of enforcement of the order for exclusive possession of the home by the Respondent provided that it is sold within a reasonable time. The Respondent may return to the Superior Court of Justice if there are any other issues relating to the enforcement of the order for sale, including any need for enforcement of the order for exclusive possession.
[8] The parties agreed that the successful party should have costs fixed in the all inclusive amount of $10,000. Accordingly, the Respondent is entitled to costs of $10,000.
Penny J.
I agree _______________________________
McKelvey J.
I agree _______________________________
Newton J.
Date Oral Judgement released: April 30, 2021
Date Released: May 4, 2021
CITATION: Dhaliwal v Dhaliwal, 2021 ONSC 3258
DIVISIONAL COURT FILE NO.: 43/21
DATE: 20210430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Penny, McKelvey and Newton
BETWEEN:
HARJIT DHALIWAL
Applicant (Appellant)
AND
AMANDEEP DHALIWAL
Respondent (Respondent in Appeal)
REASONS FOR JUDGMENT
Date Oral Judgment Released: April 30, 2021
Date of Release: May 4, 2021