ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-01-44502-0000
DATE: 2012-11-02
B E T W E E N:
SUNITA KURBAN
John W. Bruggeman , for the Applicant
Applicant
- and -
JEETINDRA KURBAN
P. Novomestsky, for the Respondent
Respondent
HEARD: November 1, 2012, by teleconference at Brampton, Ontario
Price J.
Endorsement
NATURE OF MOTION
[ 1 ] Sunita Kurban has applied to the Court for directions pursuant to my Order dated July 26, 2011, following her motion for access to the parties’ child, T.K., and Mr. Kurban’s motion to prohibit her from making further motions without leave of the court.
BACKGROUND FACTS
[ 2 ] The parties separated in October 2001, after a nine year marriage. Their son, T.K., who was born […], 1998, was not yet four years old. The parties divorced in March 2007.
[ 3 ] Ms. Kurban was diagnosed with bi-polar affective disorder in December 2000. She later exhibited erratic behavior at times when she failed to take the medication prescribed for her to manage her condition.
[ 4 ] With the help of the Office of the Children’s Lawyer, who undertook a clinical investigation at the request of Justice Snowie, the parties signed Minutes of Settlement on April 29, 2011, whereby they agreed to vary an earlier Order made by Justice Snowie on November 22, 2005, to restore Ms. Kurban’s access to T.K., provided that access would be suspended in the event of Ms. Kurban’s relapse.
[ 5 ] T.K. later refused to accompany his mother during her scheduled access visits with him. Mr. Kurban attributed this to a recurrence of Ms. Kurban’s erratic behavior. Ms. Kurban asserted that her condition was being managed by medication and that Mr. Kurban was not facilitating her access to T.K..
[ 6 ] Following a hearing before me on July 26, 2011, I referred the parties to Dr. Gerard Kimmons, a child psychiatrist, for counseling regarding their communication with each other and with T.K., and for a mini-assessment of T.K. pursuant to section 30 of the Children’s Law Reform Act to determine the source of his resistance to his mother’s continued exercise of access to him, and whether his resistance could or should be overcome. I granted the parties leave to obtain a letter from Dr. Kimmons with his observations and recommendations.
[ 7 ] Mr. Kurban has enrolled T.K. in a school in Oakville, where it is more difficult for Ms. Kurban to exercise her access to him than if he were attending school in Mississauga where he was previously enrolled and where his mother continues to reside. This change was made without Ms. Kurban’s consent and without an Order of the court.
[ 8 ] It would be disruptive of T.K.’s schooling to remove him from the school that he is currently attending in mid-semester. However, the change of school and the reasons for his resistance of his mother’s continued access to him must be addressed in a preliminary way without the delay that would be attendant on a request that the Office of the Children’s Lawyer renew their investigation.
[ 9 ] My order dated July 26, 2012, provided that if there was any problem in the implementation of the Order, either party could apply to me, by motion on short notice, for a hearing by teleconference, in which event I would consider requesting the further involvement of the Office of the Children’s Lawyer.
[ 10 ] T.K. is now 14 years of age. The parties have failed to make the necessary appointments with Dr. Kimmons to permit him to complete his counseling of the parties and his assessment of T.K.. It is necessary that they comply with the Order dated July 26, 2011, before a determination is made as to whether a request should be made for further involvement of the Office of the Children’s Lawyer and, more immediately, whether T.K. should be returned to a school in Mississauga in January.
CONCLUSION AND ORDER
[ 11 ] Having regard to the foregoing, it is ordered that:
Ms. Kurban shall resume exercising access to T.K. on alternate weekends, commencing Friday, November 2, 2012.
The parties shall forthwith make arrangements with Dr. Kimmins to resume his mini-section 30 assessment. The assessment will be to determine:
a) The source of T.K.’s resistance (if it exists) to his mother’s exercise of access and whether it can and should be overcome and if so, how;
b) T.K.’s preferences of place of residence and school.
In particular, Mr. Kurban shall forthwith make an appointment for himself and T.K. with Dr. Kimmons and shall notify forthwith Ms. Kurban’s solicitor of the date of his appointment. Ms. Kurban shall forthwith make an appointment for herself with Dr. Kimmons and forthwith notify Mr. Kurban’s solicitor of the date of her appointment.
At their next appointment with Dr. Kimmons, the parties shall provide a copy of this endorsement to him, together with a direction authorizing him to provide information to each other and to the court regarding his observations and recommendations.
The parties shall forthwith make inquiries of the schools in their respective municipalities, that is, Ms. Kurban in Mississauga and Mr. Kurban in Oakville, to ascertain whether it is possible for T.K. to transfer to a school in Mississauga in January and, if so, what the impact would likely be on his academic performance.
Counsel for Ms. Kurban shall forthwith produce to Mr. Kurban’s solicitor the letter she submitted to the Ministry of Transportation regarding her current mental status.
The parties shall forthwith advise each other and my judicial secretary as to their availability between 9:00 a.m. and 10:00 a.m. from mid-November onwards, and shall make arrangements for a resumption of this teleconference on the earliest mutually available date.
Price J.
DATE: November 2, 2012
COURT FILE NO.: FS-01-00044502-0000
DATE: 2012-11-02
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SUNITA KURBAN Applicant - and – JEETINDRA KURBAN Respondent ENDORSEMENT Price J.
Released: November 2, 2012