ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-FL-1651-2
DATE: 2012/MAY/28

BETWEE N:

Anupam Kakkar

Self-represented Applicant

Applicant/Moving Party

• and -

Madhuri Nandwani

Jennifer Wood, for the Respondent

Respondent

HEARD: December 7, 8, 9 and 16, 2011

The Honourable Mr. Justice J. M. Johnston

JUDGMENT ON MOTION TO CHANGE

[ 1 ] This is a motion to change the final Order of Maranger, J. dated January 15, 2008, and as amended by the Order of Cosgrove, J. dated November 26, 2008. The moving party is the applicant father, Mr. Kakkar. Mr. Kakkar seeks an order for joint custody of the two children, Anupriya Kakkar born September 9, 2003, and Ansh Kakkar born April 8, 2005.

[ 2 ] The father seeks an increase in access to the two children and to terminate his spousal support obligation as of September, 2009. Further, he seeks an order that he has overpaid spousal support and child support and that his child support obligation ought to be reduced to reflect his reduced income as set out in line 150 of his income tax return.

Background:

[ 3 ] The parties were married as the result of an arranged marriage on December 14, 2002, in a Hindu ceremony. The parties separated December 23, 2005. There are two children of the marriage, namely, Anupriya Kakkar, born September 9, 2003, and Ansh Kakkar born April 8, 2005.

[ 4 ] The parties entered into a Consent Order before Justice Maranger, dated January 15, 2008. The Order provided for mother to have sole custody of the two children. Father was granted access every second weekend from Saturday at 9:00 a.m. to Sunday at noon and every second Tuesday 6 p.m. to 8 p.m.

[ 5 ] Father was required to pay child support in the amount of $645.00 per month for the two children based upon imputed income of $42,500.00 per annum commencing February 1, 2008. The respondent father was ordered to pay spousal support to the mother in the sum of $855.00 per month commencing February 1, 2008. Spousal support was to be reviewed no later than September, 2009, when the child, Ansh, started school.

[ 6 ] Arrears of child and spousal support to and including January, 2008, were ordered to be paid to mother from monies held in trust from sale of the matrimonial home.

[ 7 ] Justice Maranger’s Order was varied slightly by Justice Cosgrove’s Order dated November 26, 2008. Pursuant to the amended Order, mother was permitted to apply and receive a Canadian passport for the child, Ansh. The mother was permitted to renew and receive an American passport for the child, Anupriya Kakkar. The mother was permitted to travel to the United States with the children without father’s permission during periods that do not interfere with his access. Father’s access to the children was amended to provide every second weekend from Friday at 7 p.m. until Sunday at noon, and Monday, if Monday was a statutory holiday. Further, every second Tuesday from 5 p.m. to 8 p.m.

[ 8 ] During the marriage and, at the time of separation, father was employed in the hospitality industry earning between $50,000.00 and $60,000.00 per annum. At the time of the Maranger order, father had started an independent business as an operator of a Canadian Tire Gas Bar and Convenience Store. Father continues to operate this business as of date of this hearing.

[ 9 ] Mother was a stay-at-home mother. She worked part-time while the children were in school, delivering flyers. Her hours allowed her to start after the children went to school in the morning and concluded before they were finished school in the afternoon. Mother was advised during this hearing by her employer that her job was terminated, through no fault of her own.

[ 10 ] Since the separation, it is agreed the children resided primarily with mother.

Father’s Motion to Vary Custody:

Analysis

[ 11 ] The principles which govern a motion for variation of an order relating to custody and access require a two-stage inquiry. First, the party seeking variation, in this case father, Mr. Kakkar, must show a material change in the situation of the child or children. If this is done, the judge must enter into a consideration of the merits and make an order that best reflects the interests of the child in the new circumstance.

(a) The Threshold Condition: A Material Change

[ 12 ] Before the court can consider the merits of the motion for variation, it must be satisfied there has been material change in the circumstance of the child since the last custody order was made. If the applicant is unable to show the existence of a material change, the inquiry can go no further.

[ 13 ] In Wilson v. Grassick 1994 4709 (SKCA) , the court stated:

“The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstance since the order was issued.”

[ 14 ] J.G. McLeod, Child Custody Law and Practice (1992) at p. 11-5 stated:

“It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstance of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.”

[ 15 ] Father takes the position that he initially agreed to the Final Order of custody of the children to the respondent mother on the basis that the children were young at the time and it was in their best interests to be with mother. He states he had the expectation that the mother would not interfere with the children’s relationship with him. Father argues that the children are now older and they require more time with their father. In his evidence, Mr. Kakkar agreed that the children are “doing great and doing great in school”. Mr. Kakkar further stated that he has concerns that mother is permitting the children to watch inappropriate television programs including shows involving violence and nudity. Father did not advance any evidence to support his contention the children were being exposed to inappropriate programming.

[ 16 ] Mother, in her evidence, denied that the children were ever exposed to inappropriate programs on television. Further, mother confirmed father’s evidence that the children were doing extremely well. Mother enrolled the children in a reading program at the library to assist in reading. It was clear from mother’s evidence and I find as a fact that she has a very close bond and relationship with both children. I am further satisfied on the evidence of both Mr. Kakkar and Ms. Nandwani that Ms. Nandwani is the primary caregiver for the children. The children progressed well in her care. At times, there have been difficult communications between mother and father. The difficulty in communication increased in September, 2009, when the father took the position that, not only should spousal support be reviewed but, in fact, it should terminate at that time. Since then, communication between the parents has deteriorated.

[ 17 ] Mr. Kakkar acknowledged that Ms. Nandwani has, at times, been reasonable with him in allowing him additional access with the children. Father acknowledged throughout the children’s lives he has worked extremely hard to earn an income for himself and the family. Since the separation, he has operated the Canadian Tire Gas Bar and Convenience Store. I find that Mr. Kakkar is a hardworking individual and, as such, has devoted significant hours to his employment. As a result, he has not been able to spend as much time with the children as perhaps even he would like. This is not a criticism of Mr. Kakkar, rather a statement of fact that father has less time to spend with the children as a result of his work commitments.

[ 18 ] Father argues that, since the youngest child is now enrolled in school, this in itself constitutes a material change in circumstance. I do not agree.

[ 19 ] It was clearly contemplated at the time of the original Order that the children would progress and that the youngest child would enroll in school at the appropriate age. This fact alone does not constitute a material change of circumstance. There is nothing in the care or needs of the children that indicate a material change of circumstance. In fact, I find that mother has continued to provide the same kind of care she has always provided with the children in a loving and warm home environment. There is no change of circumstance and I dismiss father’s application for variation of custody.

[ 20 ] The children have progressed in age and in comfort with the fact that they spend time with their father. It is, therefore, appropriate to increase access between the children and father. Ms. Nandwani is not opposed to an increase in access including sharing of the holidays.

[ 21 ] I find that father is a loving father and, like most parents, wants what is best for the children. After listening to the evidence of both mother and father, it is clear that the children would benefit from additional time with father. Accordingly, I amend the access order to provide that Mr. Kakkar shall have access to the two children every second weekend from Friday at 7 p.m. to Sunday at 6 p.m., access shall extend to Monday at 6 p.m. in the event that father’s access falls upon a statutory holiday. Further, father shall have access with the children alternating Tuesdays from 5 p.m. to 8 p.m. In 2012, Mr. Kakkar shall be entitled to two weeks not consecutive in the month of July or August. In 2012, father shall be entitled to three weeks holiday with the children, not necessarily consecutive. He shall advise mother by no later than June 1 of each year of the weeks he wishes to have access and mother shall not unreasonably deny the request, unless she has previously arranged plans. The parties shall equally share all other holidays including March break, Easter, Thanksgiving and Christmas. Commencing in 2012, the applicant father shall be entitled to access with the children on their school March break from Friday after school to Sunday at 6 p.m. returning them to mother’s home.

[ 22 ] Whether or not the children are scheduled to be with mother on the weekend of Mother’s Day, they shall be with mother for the day. Whether or not the children are scheduled to be with the applicant father on Father’s Day weekend, they shall be with father for the day, at least 9 a.m. to 6 p.m. The parties shall equally share the Christmas school holiday. If the parties cannot agree on the dates for sharing of the Christmas holiday, mother shall be entitled to the first one-half period of the school holiday and father the second half.

[ 23 ] The father now seeks a division of Hindu holidays. Father has not previously provided a claim or support or evidence for this and I decline to make the order at this time. Unless incompatible with my order, the previous provisions of the Orders of Cosgrove, J. and Maranger, J. remain in effect.

[ 24 ] In the event that I am in error and there has been a material change of circumstance justifying the review of custody, I provide my findings with respect to the best interests of the children test.

[ 25 ] Pursuant to Section 24 of the Children’s Law Reform Act , the merits of an application require consideration of the best interests of a child. Pursuant to Section 24(2), the court shall consider all of the child’s needs and circumstances including:

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

(ii) 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 necessities 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 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 party to the application.

[ 26 ] As stated previously, it is clear both parents love their children. However, it is equally clear the children are most closely bonded with their mother. The children have been with mother since the separation. The youngest child, Ansh, still is having some issues being with father for prolonged periods of time. I accept Ms. Nandwani’s evidence that the children have clearly expressed their view and preference to live with her.

[ 27 ] Ms. Nandwani is able to provide a stable home environment. Mr. Kakkar’s personal circumstances appear to change from time to time including several moves. Father has no history of prolonged parenting or involvement with the children. He acknowledges there have been times that access has ended early due to his commitments.

[ 28 ] While Mr. Kakkar is a well-meaning, well-intentioned and loving father, it is clear that the children’s best interests require that they remain in the care of their mother. The children have done well in her care. Ms. Nandwani has structured her life such that she focuses on the needs of the children. For example, she has taken employment delivering flyers that accommodates her schedule with the children, allowing her to see the children off to school in the morning and be there for them upon their return at the end of the school date.

Spousal Support Variation:

[ 29 ] It is the position of Mr. Kakkar that spousal support to Ms. Nandwani ought to have terminated September 1, 2009, namely, the date set for review of spousal support pursuant to the Maranger, J. Order. Mr. Kakkar argues that Ms. Nandwani has the ability to work as a cook at a restaurant and that she was involved in a cellular telephone business with a family member and has considerable ability to earn income.

[ 30 ] Mr. Kakkar ceased paying spousal support as of September 1, 2009.

[ 31 ] Ms. Nandwani seeks an order that spousal support continue to August 31, 2010, and terminate as of that date. Ms. Nandwani argues that spousal support should continue until the youngest child attended school full-time.

[ 32 ] Further, Mr. Kakkar argues that he does not earn the income that was imputed to him at the time of the original Order. He argues that his line 150 income tax return income should be used to determine the appropriate amount of support.

[ 33 ] Ms. Nandwani, through her counsel, argues that, in fact, Mr. Kakkar’s income should be imputed in the amount of $65,000.00 to $85,000.00 per year. In the alternative, Ms. Nandwani argues that there is no change in circumstance and that Mr. Kakkar’s income should be based on $42,500.00, namely, the income imputed at the time of the original Order.

[ 34 ] In his evidence, Mr. Kakkar agreed that he pays a number of personal expenses through the incorporated company that operates the Canadian Tire Gas Bar and Convenience Store. Mr. Kakkar argues that he loaned the company money and, as such, the company paying his personal expense including food, vehicle and insurance, are simply monies drawing down on the debt owed by the company to him.

[ 35 ] I accept Ms. Nandwani’s testimony that she has employed herself to the best of her ability, keeping in mind the needs of the children. In my view, it was appropriate for Ms. Nandwani to be at home for the children until they were both in full-time attendance at school. Accordingly, it is appropriate that spousal support continue to August 31, 2010. Mr. Kakkar arbitrarily ceased paying spousal support. Ms. Nandwani was not able to improve her financial circumstances from September, 2009, to August, 2010. There are very few jobs that would accommodate her schedule with the children. It is completely appropriate that Ms. Nandwani is required to seek full-time employment after both children are in school full-time. It was equally appropriate for her to remain at home and available for the children while the youngest child was only attending part-time. Ms. Nandwani did what she could do to earn income. The times that she was able to work she delivered flyers. Ms. Nandwani productively used her other free time by volunteering at the children’s school. Again, this helped her be close to the children. I find that her actions were not for the purpose of requiring Mr. Kakkar to pay further spousal support, rather were focused upon the needs and best interests of the children.

[ 36 ] I find there is no material change in circumstance justifying termination of spousal support prior to August 31, 2010.

[ 37 ] Mr. Kakkar cross-examined Ms. Nandwani vigorously upon her credit card expenses and gifts received from her family. Mr. Kakkar argues that this shows Ms. Nandwani had significant discretionary income, such that she did not require spousal support from the period September, 2009, to August, 2010. Again, I disagree. Ms. Nandwani, throughout this period of time, was in receipt of assistance through the City of Ottawa. A worker from the City of Ottawa presented evidence in this case and verified that Ms. Nandwani met the eligibility requirements. Ms. Nandwani made full disclosure to the City of Ottawa of her financial circumstances. The City was satisfied that Ms. Nandwani was in need and, therefore, eligible for public assistance. I accept Ms. Nandwani’s evidence that she received some assistance from her family by way of gifts. This does not take away from Mr. Kakkar’s obligation to pay support.

[ 38 ] A provision in an original Order requiring a review of spousal support requires just that. Circumstances and needs need to be reviewed as of that date to determine if there has been a material change of circumstance. Mr. Kakkar treated the review date as, in fact, a date to terminate support. There was no consultation, no comparison of income or needs. While this was an arranged marriage between the two parties, Ms. Nandwani performed a stay-at-home mother role for the children. During the marriage, Mr. Kakkar supported this role. There was no change in circumstance and, therefore, spousal support continues until August 31, 2010.

Child Support:

[ 39 ] The issue is whether or not Mr. Kakkar’s income ought to be imputed at $42,500.00 or, as he argues, lower, or, as Ms. Nandwani argues, higher.

[ 40 ] Mr. Kakkar operated the Canadian Tire Gas Bar at the time of separation and at the time of the Maranger, J. Order. He has continued to do so from then to this date. Mr. Kakkar argues that his income is, in fact, significantly less than the agreed upon amount of $42,500.00 per annum. Mr. Kakkar has a somewhat complicated record of financial dealings. Mr. Kakkar has spent considerable sums of money at the casino and apparently on several occasions won significant sums of money. Mr. Kakkar had significant debt at the time of separation and continues to have debt. Mr. Kakkar uses a variety of credit cards and moves the money back and forth. Mr. Kakkar also, as indicated earlier, uses his corporate account for personal expenses.

[ 41 ] I am not satisfied with mother’s assertion that Mr. Kakkar’s income ought to be imputed at a higher level. Equally, I am not satisfied that there has been a material change of circumstance in Mr. Kakkar’s income. While his line 150 income is certainly lower than the amount of $42,500.00, I find that line 150 is not an accurate statement of his income. In the hospitality business, prior to operating the Canadian Tire Gas Bar, Mr. Kakkar earned over $50,000.00 per annum. The fact that Mr. Kakkar continues to work at Canadian Tire and earn income and apparently uses discretionary money at the casino, leads to the conclusion no grounds exist to alter the income upon which support was initially based, namely, $42,500.00.

[ 42 ] Initially, Mr. Kakkar was reluctant to disclose his casino spending and earnings. There was difficulty, as well, gaining access to his corporate financial records. Mr. Kakkar, likewise, complained that he did not have full access to Ms. Nandwani’s credit cards and credit card applications. In the final result, it is Mr. Kakkar’s obligation to establish a material change in circumstance of income and I find that he has failed to do so. Accordingly, child support shall remain at the existing level.

[ 43 ] For the foregoing reasons, I decline to re-adjust the arrears of support owed by Mr. Kakkar to Ms. Nandwani for either spousal or child support. Support continues to be owed in accordance with the existing Order, except that spousal support terminates August 31, 2010.

[ 44 ] I will leave it to the Family Responsibility Office to determine the quantum of arrears owing in accordance with judgment.

Communication:

[ 45 ] The parties at one time were able to communicate for the benefit of the children. It is apparent this ability to communicate rapidly deteriorated over the issue of spousal support. Hopefully, now that this matter has been finalized, communication will be restored. There is no doubt it is in the long term best interests of the children that mother and father can, once again, find their way clear to deal with one another in a civil manner. Notwithstanding the stress and strain of recent events, the children have done well. Future communications should be by via email. Communications should be restricted to updating each other on the issues directly related to the children and should not be used as a manner to personally communicate with the other party on non-child related issues. Communication via email is convenient to both parties and allows a record be produced, in the event there is a disagreement in the future about who said what to whom and when.

[ 46 ] In the event the issue of costs cannot be resolved, counsel for Ms. Nandwani shall prepare and serve a Bill of Costs together with a maximum of two page submissions. Mr. Kakkar shall have the option of filing a response and serving the same upon counsel two weeks after receiving mother’s submissions.

The Honourable Mr. Justice J. M. Johnston

Released: May 28, 2012

COURT FILE NO.: 06-FL-1651-2
DATE: 2012/MAY/28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: Anupam Kakkar Moving Party/Applicant - and - Madhuri Nandwani Respondent JUDGMENT ON MOTION TO CHANGE The Honourable Mr. Justice J. M. Johnston

Released: May 28, 2012