SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-11-72687-00
DATE: 20130426
RE: Tushar Jajal and Puja Agrawal
BEFORE: Justice D.L. Edwards
COUNSEL:
P. Kaler, for the Applicant
G. Bettencourt, for the Respondent
HEARD: April 22, 2013
E N D O R S E M E N T
[1] The applicant, Tushar Jajal, seeks increased access to the child of the marriage, namely Ruhi Jajal, born August 6, 2007. The applicant describes three potential parenting/access scenarios in his application, but during oral argument he acknowledged that he would accept any other increased access plan, as the court may decide.
[2] The respondent, Puja Agrawal, resists any increased access prior to the trial of the issue that is scheduled for the January 2014 blitz list.
[3] On October 24, 2012, Justice Price issued an Order on consent. Paragraph 2 of the Order provided:
On a without prejudice basis and pending the intervention of the Office of the Children Lawyer or further order of this court, the preliminary residence of the said child shall be with the respondent mother, Puja Agrawal, and the Applicant father, Tushar Jajal, shall have the child with him as follows:
(a) every Wednesday, from after school to the following morning until school:
(b) every weekend from Sunday at 9 AM to until school on Monday. Such access to be extended to Tuesday morning if Monday is a scheduled holiday.
(c) Half of the Christmas school holidays
(d) any other or further access as the parties may consent to.
[4] The first issue that must be considered is whether the applicant must prove, as a threshold issue, that there has been a change in circumstances since the consent order.
[5] In Greve v. Brighton [2011] O.J. No 3868, Justice Ricchetti canvassed the law with respect to a motion to change a consent interim custody order. He concludes:
Whether the court approaches this motion as a motion for interim relief to vary an interim consent order or to vary the status quo on the existing custody/access arrangements which have been in place for the past year, the result is the same. While the court has jurisdiction to vary the September 3, 2010 Order, it should only do so when the moving party has demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the children's best interests.
[6] It is important to note that at paragraph 19 Justice Ricchetti also states: “There is nothing in the September 3, 2010 Order which contemplated a variation.”
[7] The consent Order of Justice Price was “On a without prejudice basis” and made “pending…further order of this court”. Clearly, one or more of the parties anticipated retaining the right, prior to trial, to bring a motion to alter this Order. This distinguishes the instant case from Greve.
[8] There is evidence before me that the child is doing well under the current parenting arrangement. The mother takes primary credit for this and cites the stability that the current parenting arrangement provides. The father points to the fact that the separation of the parents is now in the past and the child has had an opportunity to adapt to the new situation. He does not dispute that the mother and child have a loving and positive relationship. What he seeks is additional contact with his daughter.
[9] The father cited the concept of “maximum contact” as well as the best interest of the child as guiding principles of family law which applied in this case support his request for increased access.
[10] The mother agrees that the best interest of the child should be the guiding principle. However, her position is that there should be no change to the access arrangements until the trial in January 2014. She does not wish the child parenting arrangements to potentially be changed now and then again following trial. Her position is that the trial judge will be in the best position to weigh the evidence, to determine credibility and to reach a final determination.
[11] The father expressed concern that, even if the matter is heard at trial in January 2014, a parenting arrangement that he does not believe is in the best interests of the child will be extended until that time. The current situation has been in place for 26 months, and the trial is still eight months away, with no guarantee that the trial will be heard in January 2014.
[12] The mother argued that increased access by the father would result in increased conflict between mother and father that would be a bad thing for the child. I am not satisfied that this would occur. For the past 26 months access has occurred. It would appear that mother and father have put their personal issues behind them and placed the child's interests paramount in their dealings with respect to access. Occasionally, they have worked out additional access for the father when it was of assistance to all parties.
[13] It was not disputed by the parties that the father has had the child for several overnight periods.
[14] Based upon the affidavit evidence and the OCL report, I am not prepared to change the primary residence of the child, nor am I prepared to substantially alter the father’s access to the level requested by the father. However, I am prepared to order increased access.
[15] In the past 26 months, the mother and father have demonstrated that the father’s access can work well. I am satisfied that there was nothing before me to demonstrate that increased access by the father would not be in the best interests of the child. Indeed, increased contact with the father would be a good thing for the child.
[16] I order that, in addition to the access currently ordered, the applicant shall have alternating weekend access from Friday after school until school on Monday, in addition to his existing weekend access. Accordingly, one weekend the father will have access from Sunday 9:00 a.m. until school on Monday. On the next weekend, the father will have access from Friday after school until school on Monday. In both situations, if Monday is a school holiday, such access to be extended until school on Tuesday morning. Also, the applicant shall have the child for two nonconsecutive weeks in the summer.
[17] I urge each party to undertake whatever courses or seminars have been recommended to improve his/her parenting skills. It is in everyone’s interest that suggestions received in this regard from the OCL and other professionals are acted upon, and can then be discarded as hurdles to the development of a parenting arrangement which has Ruhi’s best interest as the central principle.
[18] It is clear to me that both parents have, and want to maintain, a loving relationship with Ruhi. If her best interests are kept in mind, I am confident that the parties will work out a parenting arrangement for their child without requiring a trial and a decision by third-party.
[19] As success is mixed on this motion, there shall be no order as to costs.
Justice D.L. Edwards
DATE: April 26, 2013
COURT FILE NO.: FS-11-72687-00
DATE: 20130426
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tushar Jajal and Puja Agrawal
BEFORE: Justice D.L. Edwards
COUNSEL: P. Kaler, for the Applicant
G. Bettencourt, for the Respondent
ENDORSEMENT
Justice D.L. Edwards
DATE: April 26, 2013