SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-12-74329-00
DATE: 20120418

RE: Tajinder Sangha v. Jason Alex Meighan

BEFORE: Fragomeni J.

COUNSEL: Sarah Young, for the Applicant

HEARD: April 17, 2012

E N D O R S E M E N T

[ 1 ] Interim Order to issue as follows:

2. A declaration that the child’s habitual residence is the province of Ontario and that the Ontario Superior Court of Justice has jurisdiction with respect to the custody and access dispute between the parties;

3. An interim Order that the Applicant mother have sole custody of the child of the marriage: Jaiden Meighan (d.o.b. […], 2007, 4 years of age), pursuant to s. 21 of the Children’s Law Reform Act , R.S.O. 1990, Chapter C.12 or s. 16 of the Divorce Act , R.S.C., 1985, c. 3 (2 nd Supp.);

4. An Order that the child will reside with the Applicant mother in Ontario, pursuant to s. 21 of the Children’s Law Reform Act and that the child is to be immediately returned to the mother forthwith;

5. An Order that the Respondent father will have access to the child in accordance with the following schedule:

a. For a week in May, June, July, and August of 2012 to be agreed upon between the parties; and

b. For one or two weekends each month commencing September 2012 to be agreed upon between the parties.

6. An Order that the child’s passport be delivered to the Applicant pursuant to section 28(1) (c)(v) of the Children’s Law Reform Act ;

7. An Order prohibiting the Respondent from removing the child from Ontario without the Applicant’s consent or a court order, pursuant to section 28(1) (c)(iv) of the Children’s Law Reform Act ;

8. The police and any other law enforcement agencies shall enforce the terms of this order and shall lend all necessary assistance to the mother to enforce the terms of this order;

9. Costs of this motion are reserved. Although the mother has filed a Bill of Costs, the mother will be permitted 10 days to make written submissions on costs in light of her position that full recovery costs be awarded.

REASONS

[ 2 ] The Applicant mother, Tajinder Sangha (Tajinder) has brought this motion on an urgent basis. The Respondent father, Jason Alex Meighan (Jason) has refused to return the parties’ four year old son from New York to his mother’s primary care and his habitual residence in Ontario.

[ 3 ] Tajinder seeks an order for interim sole custody and that Jason have specified access.

[ 4 ] On March 29, 2012 this matter appeared before the Honourable Mr. Justice John Sproat. Mr. Ruso appeared for Jason, although not retained to go on record. The endorsement of Justice Sproat indicates that Mr. Ruso requested a two-week adjournment to file material. The matter was adjourned to April 17, 2012. A case conference was scheduled for April 12, 2012.

[ 5 ] Both parties were ordered to file affidavits by April 10, 2012 setting out on a week by week basis where the child has resided since birth and produce all supporting documentation in that regard.

[ 6 ] On April 12, 2012 the case conference was not held since Jason failed to attend, even though the date was set on the consent of both parties. Justice Ricchetti, therefore, dispensed with the case conference and ordered that the motion would proceed on April 17, 2012, peremptory on Jason.

[ 7 ] Jason has not filed any responding material on this motion. Jason does not appear as he is not permitted to enter Canada.

Overview of the Facts as Set Out by Tajinder in her Factum

[ 8 ]

4. The parties were married on January 20, 2009 and separated in May of 2010.

5. They have one child, Jaiden, born prior to marriage on […], 2007. Jaiden is 4 years old.

6. Tajinder has been Jaiden’s primary caregiver since birth. He has always resided with Tajinder in Ontario.

7. Jason has lived in New York, New York since October 2009 when he was deported after being found guilty of two counts of assault with a weapon and one count of mischief in relation to an ex-girlfriend.

8. Tajinder has provided for all of Jaiden’s needs, emotional, financial and otherwise. She has fed him, clothed him, and bathed him. Jaiden is a happy and healthy young boy and Tajinder has worked very hard to ensure that he has all of the opportunities and experiences he could want.

9. Jaiden is a Canadian citizen. He was born in Etobicoke and has lived in Mississauga, Ontario since he was born. He resides with the applicant and her parents. Tajinder and Jaiden have a strong support system in Mississauga made up of family and friends.

10. Jaiden’s doctor and dentist are in Mississauga and he has taken karate lessons in Mississauga. Tajinder plans to enrol him in full-time school in September at Dunrankin Drive Public School, down the road from where the Tajinder and Jaiden live with Tajinder’s parents.

11. Tajinder has also made sure that Jaiden continues to have a healthy relationship with Jason despite the parties’ separation and the geographical distance between them. The Applicant has facilitated access in New York and has paid the cost of Jaiden’s travel and expenses while in the Respondent’s care.

12. Since the breakdown of the parties’ relationship, the access schedule has been flexible without set return dates. Jaiden’s young age allowed him to spend extended periods of time with Jason and Tajinder encouraged this.

13. Since June of 2010, Jaiden has spent the following time in New York: three weeks in August 2010, three months from April 2011 to June 2011, two weeks in August 2011, and since January 2012.

14. Jaiden was dropped off in New York for his last visit with Jason in January. Jason has refused to return the child. He has not responded to correspondence from Tajinder’s counsel. The Applicant commenced this proceeding as a result. After this proceeding was commenced she became aware that the Respondent had also commenced a proceeding in New York.

15. Tajinder believes that Jason is very upset that she is seeking a divorce and will not reconcile with him. She believes that his refusal to return Jaiden is in an effort to have her move to New York and sabotage her current relationship. Jason has alleged that it is in Jaiden’s best interests for him to have custody, that Tajinder has abandoned Jaiden, that she has no job, that she is a prostitute and that her boyfriend is controlling. There is no substance to these allegations and none of them were made until Jason found out that Tajinder was in a new relationship and was proceedings with a divorce.

16. Jason’s attempt to unilaterally alter the status quo and Jaiden’s residence should not be condoned. Jaiden is habitually resident in Ontario with his primary caregiver, Tajinder. The status quo should be continued and Jaiden’s return to Ontario should be facilitated.

[ 9 ] In her Affidavit sworn April 10, 2012, Tajinder sets out Jaiden’s residency in Ontario since birth as well as his travel to New York. At paragraph 8 Tajinder sets out the following:

8. Since Jaiden was born, he has resided in Ontario. The history of his residence and his travel to New York City is as follows:

i)From birth ([…], 2007) to December 21, 2007: During this period of time. Jason, Jaiden and I lived together in Brampton at 88 Dewridge Court;

ii) December 21, 2007 – approximately April 2008: During this period of time Jason was incarcerated. A copy of his probation order is attached at Exhibit B. I maintained our residence at 88 Dewridge Court, but Jaiden and I spent a lot of time at my parents’ home at 7102 Dalewood Drive in Mississauga;

iii) April 2008 – August 2008: Jason was released from prison in April 2008. Jason, Jaiden and I resided at 88 Dewridge Court. We moved in with my parents in August 2008;

iv)August 2008 – October 2009: we lived with my parents at 7102 Dalewood Drive in Mississauga until Jason was deported in October 2009;

v)October 2009 – Spring 2010: Jason and I were still together during this period of time. He was living in New York City and could not return to Canada. Jaiden and I were living in Mississauga with my parents. I would travel with Jaiden to New York to see Jason approximately one week each month.

My first trip to New York with Jaiden was on October 1, 2009 when Jason was deported. A copy of the stamp in my passport for this trip is attached at Exhibit C.

I also travelled with Jaiden to New York on November 26, 2009 for Thanksgiving. A copy of my passport stamp for this travel is attached at Exhibit C.

I travelled with Jaiden to New York on December 24, 2009 for Christmas. I remember that we came back to Ontario in early January after celebrating the New Year’s Eve in New York. A copy of the stamps in my passport for this travel is attached at Exhibit D.

After reviewing my passport, I also believe that I travelled to New York with Jaiden on March 19, 2010 and April 30, 2010. A copy of the stamps in my passport for this travel is attached at Exhibits E and F.

Attached at Exhibit G are my mother’s credit card statements for tickets that were booked in December 2009, January 2010, and June 2010. The statements do not show what dates the tickets were booked for. I believe that the December 29, 2009 purchase would have been for Jaiden’s flight back to Toronto. The January 29, 2010 and June 16, 2010 would have been for additional visits. It looks like Jason picked Jaiden up in Buffalo for the visit in June 16, 2010.

vi)Spring 2010 – January 19, 2012: Jason and I separated in the spring of 2010. During this period of time, Jaiden continued to reside with me at my parent’s in Mississauga. He travelled to visit Jason as follows:

August 2010: I travelled to New York with Jaiden and left him in Jason’s care for approximately three weeks. A copy of the credit card statement booking the flight on August 5, 2010 and my passport stamp are attached at Exhibit H. I remember that Jaiden was back in Ontario for his birthday on […], 2010.

September 2010: I believe that Jaiden may have travelled to New York to visit Jason during this month. This visit was not included in my previously sworn affidavit. I did not remember it until I was preparing my evidence for this affidavit. I remember that I obtained a job at a daycare around this time and have a recollection of speaking to Jaiden in New York on the telephone when I first started working there.

December 2010: I travelled with Jaiden to New York and we both spent time with Jason over the Christmas holidays. This visit was also not included in my previously sworn affidavit. Again, I did not remember it until I was preparing my evidence for this affidavit.

April 2011: I travelled to New York with Jaiden and left him in his father’s care until approximately June, 2011.

August 2011: I believe that I travelled to New York with Jaiden and left him in Jason’s care for approximately two weeks. A copy of Jaiden’s flight itinerary when he returned to Toronto on August 29, 2011 is attached at Exhibit I.

I am unsure of the exact details of the April, 2011 and August, 2011 travel, I do know that in the period of time from April 2011 – August 2011 Jaiden spent approximately four months in New York.

vii)January 19, 2012 – present: I drove to Buffalo with Jaiden and Jason came to pick him up. A copy of the itinerary for the flight that was booked for Jason and the flight itinerary for Jaiden are attached at Exhibit D. Jason has been refusing to return Jaiden since February 2012.

[ 10 ] In her earlier Affidavit sworn March 19, 2012 Tajinder outlines the details supporting her position that Jason’s home is Mississauga, Ontario. At paragraph 31 to 41:

31. Jaiden is a Canadian Citizen. He was born in Etobicoke at William Osler Health Centre and has lived in Mississauga, Ontario since he was born. A copy of his Statement of Live Birth is attached at Exhibit M. A copy of his expired passport is attached at Exhibit N (his current Canadian passport is with Jason in New York).

32. We have a strong support system in Mississauga, including my parents, my brothers, and my friends. I have lived here since I was a child and know the neighbourhood well.

33. Jaiden and I live with my parents and my younger brother at 7102 Dalewood Drive. He has his own room in the house and we have lived here since Jason and I separated in May 2010.

34. Jaiden has a very close relationship with my parents and my brothers. My mother has played a major role in Jaiden’s life. When Jason and I were together, she would provide childcare if both of us were unavailable. She has continued to assist with childcare since Jason and I separated. She has always been Jaiden’s alternate emergency contact.

35. My older brother, Amreet Sangha, also lives in Mississauga. He often spends time with Jaiden. He will pick him up and take him to the park or birthday parties. Jaiden really enjoys the time that he spends with Amreet.

36. Some of my friends in Mississauga also have young children and we set up playdates. We do a variety of things including going to the park, to Chuckie Cheese or to the movies. Their children, Chanel Reali Brooklyn and Phoenix Connars, are some of Jaiden’s closest friends.

37. I am in a new relationship with Tariq Khursheed. We are engaged and intend to get married in the near future. He owns a RE/MAX realty brokerage in Mississauga, Ontario. He also has four children from a previous relationship and Jaiden has developed a close relationship with them.

38. Jaiden’s paediatrician was Dr. Catalino Palad at Malton Medical Centre in Mississauga. He has been seeing a different Doctor, Dr. Charles Lu, since March 8, 2011. A copy of correspondence from Dr. Lu is attached at Exhibit O. His dentist is Dr. Gary Gutmann at The Malton Dental Group in Mississauga. Both of these professionals are a five minute drive from my home.

39. In New York, Jaiden does not have any health insurance. He does not have doctor or dentist.

40. I have taken Jaiden to karate lessons in Mississauga for about a year now. A copy of correspondence from his karate teacher is attached at Exhibit P.

41. We have strong roots in Mississauga and I am looking forward to enrolling Jaiden in school in our community. I am also excited that he is now at an age where he can start to be involved in more extra-curricular activities.

[ 11 ] At paragraph 42 to 47 Tajinder details her Parenting Plan as follows:

42. Jaiden is four years old. He could have been enrolled in junior kindergarten last year, but I decided to delay his enrolment until senior kindergarten so that Jaiden could travel to New York for extended periods of time to see Jason for an extra year. Because of Jason’s criminal record and deportation, he cannot come back in to Ontario. I am sensitive to this and have structured Jaiden’s childhood in a way that has allowed him to spend significant chunks of time with Jason during his early years.

43. In September, I plan to enrol Jaiden in school full-time at Dunrankin Drive Public School. I went to Dunrankin as a child. It is a very good school. It is just down the road from my parent’s house, where Jaiden and I will reside. My work schedule at Legacy Realty Brokerage is very flexible and I will be available to drop Jaiden off at school in the morning and pick him up at the end of the day.

44. Until Jaiden starts school in September, I am proposing that he continue to travel to New York for a week each month. Then, starting in September, he would travel to New York one or two weekends a month.

45. For the time being, Jaiden and I will continue to live at my parent’s house. At some point, probably after Tariq and I get married, I expect that we will move into a home with him. We intend to stay in the same community.

46. I would like to continue to have Jaiden participate in Karate. He is also getting to an age where I think it would be appropriate to sign him up for further sports. Whether he is interested in sports, art, or music, I am working and saving to ensure that these learning experiences will be available to him.

47. I am fluent in Spanish and would like to work with him for a period of time each day in the hope that he will also pick up some of the language.

[ 12 ] I am satisfied on the evidentiary record before me, as contained in the Continuing Record, that Jaiden is habitually resident in Ontario and that the Superior Court of Justice in Ontario has jurisdiction with respect to the custody and access dispute between the parties.

[ 13 ] I am also satisfied in all of the circumstances that Tajinder is entitled to interim sole custody of Jaiden with specified access to Jason. It is in the child’s best interests that such an order be made.

[ 14 ] In Riley v. Wildhaber 2011 ONSC 3456 (Ont. S.C.J.)(Div.Ct.) the Court stated as follows at para. 28:

28 In Brooks v. Brooks (1998), 1998 7142 (ON CA) , 163 D.L.R. (4th) 715 (Ont. C.A.), the Ontario Court of Appeal recognized those purposes in the following words at para. 22:

Part III was added to the CLRA to deter forum shopping and child abduction, to provide some uniform powers and procedures for the resolution of custody/access disputes and to reduce the time for the resolution of parental disputes involving children. To secure the best information relevant to the children's best interests, it is also important that jurisdiction over custody/access disputes not be unduly fragmented and prolonged, as has occurred here.

[ 15 ] Section 22(2) of the Children’s Law Reform Act ( CLRA ) defines “habitually resident” as follows:

A child is habitually resident in the place where he or she resided,

With both parents;

Where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

With a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

[ 16 ] I agree with Tajinder’s position that Jaiden has lived with his mother since the parties separated with Jason’s implied consent and acquiescence. Jason’s refusal to return Jaiden to Ontario does not alter Jaiden’s habitual residence. Jaiden is being held without Tajinder’s consent and she has commenced process to deal with this situation in an expeditious manner.

[ 17 ] With respect to custody and access, the CLRA sets out the factors that must be considered in assessing a child’s best interests. The court shall consider all the child’s needs and circumstances including:

a)The love, affection and emotional ties between the child and,

(i) Each person entitled to or claiming custody of or access to the child,

(ii) Other members of the child’s family who reside with the child, and

(iii) Persons involved in the child’s care and upbringing;

b)The child’s views and preferences, if they can reasonably be ascertained;

c)The length of time the child has lived in a stable home environment;

d)The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e)The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f)The permanence and stability of the family unit with which it is proposed that the child will live;

g)The ability of each person applying for custody of or access to the child to act as a parent; and

h)The relationship by blood or through an adoption order between the child and each person who is a party to the application.

[ 18 ] In Donley v. Donley , [2008] W.D.F.L. 1959 (Ont. S.C.J.) R.J. Harper J. stated the following at para. 91, 92 and 99:

91 In the case of Norland v. Norland , [2006] O.J. No. 5126 , 2006 CarswellOnt 8253 , [2007] W.D.F.L. 2775 , [2007] W.D.F.L. 2768 , [2007] W.D.F.L. 2812 (Ont. S.C.J.) , Smith J. made the following comment at paras. 32 to 34:

It is well established that the onus is on the party seeking to disturb a status quo arrangement with respect to the custody of children. The evidence required by a court to do so must reliably demonstrate that there are compelling reasons to change the arrangement in order to meet the needs of the children.

Essentially, the status quo will be maintained on an interim custody motion unless there is evidence that to do so will be harmful to the children.

I adopt the words of Wright J. in Kimpton v. Kimpton , [2002] O.J. No. 5367 , when he stated: There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. This golden rule was enunciated by Senior Master Roger in Dyment v. Dyment , 1969 544 (ON SC) , [1969] 2 O.R. 631 , [...] by Laskin J.A. again in Papp v. Papp , 1969 219 (ON CA) , [1970] 1 O.R. 331 at pp. 344-5 and by the Nova Scotia Court of Appeal in Lancaster v. Lancaster (1992), 1992 14032 (NS CA) , 38 R.F.L. (3d) 373 . By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. See on this issue Irwin v. Irwin (1986), 1986 6303 (ON SC) , 3 R.F.L. (3d) 403 and the annotation of I.G. McLeod to Moggey v. Moggey (1990), 1990 7339 (SK KB) , 28 R.F.L. (3d) 416 .

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

92 In the case before me, I have already commented that the evidence is seriously conflicting, on the issues that Mrs. Donley advances should be considered by me as evidence that is clear, cogent and compelling reasons for this court to upset long-standing status quo of the children living in the community that they were in prior to January 15, 2008. Although the above case refers to a legal status, I am of the view that in this particular case there was an exercise of self-help by Mrs. Donley that was an effort on her part to create a status quo to gain a tactical advantage. I have reviewed, at great length, all of the evidence of the allegations with respect to domestic violence and the allegations with respect to the claim by Mrs. Donley that Mr. Donley is addicted to pornography.

99 I find that Mrs. Donley's plan is ill-conceived and self-serving, without regard to the best interests of the children. She removed them from the community, in which they have many roots, to reside with her mother. By her mother's own admission, in her affidavit, the historical pattern of contact that she had with the children was limited to approximately one time per month. Both Mrs. Donley and her mother describe their own relationship as one characterized by ups and downs.

[ 19 ] Jason did not appear, as agreed to, on April 17, 2012 to deal with this motion. It appears from the notation on the Counsel slip that the Respondent would not be attending and a friend of the Respondent had attended earlier advising that the Respondent wanted time to retain counsel. This person did not appear to address the Court at the time the motion was heard. Justice Ricchetti’s endorsement was that the motion was peremptory on the Respondent. Jason did not appear at the Case Conference date of April 12, 2012. Jason has not filed any material in accordance with the time line set out by Justice Sproat.

[ 20 ] I have not reviewed the entire evidentiary record in these reasons. I have considered the record and the submissions of counsel and I am satisfied that the orders requested and made are amply supported by the evidentiary record before me.

Fragomeni J.

DATE: April 18, 2012

COURT FILE NO.: FS-12-74329-00
DATE: 20120418

SUPERIOR COURT OF JUSTICE – ONTARIO SUMMARY CONVICTION APPEAL COURT RE: Tajinder Sangha v. Jason Alex Meighan BEFORE: Fragomeni J. COUNSEL: Sarah Young, for the Applicant ENDORSEMENT Fragomeni J.

DATE: April 18, 2012