COURT FILE NO.: FS-13-78140-00

DATE: 20130828

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Manjinder Singh Kang, Applicant (Father)

AND:

Kuljit Kang, Respondent (Mother)

BEFORE: Ricchetti, J.

COUNSEL: G. Hayes and C. Bird, Counsel, for the Applicant

A. Duggal, Counsel, for the Respondent

HEARD: August 26, 2013

ENDORSEMENT

THE MOTION

[1] There are two motions before this court. Essentially, both parties seek a determination of the same issues:

a) interim custody of the children, Avneet Kaur Kang (dob Sept. 1, 2007) and Harveen Kaur Kang (dob July 26, 2010) (“Children”); and

b) parenting time.

[2] There are related issues involving which school the Children will attend for the 2013-2014 year and whether this court should request the involvement of the Office of the Children’s Lawyer.

THE POSITION OF THE PARTIES

[3] Both parties seek interim sole custody. The Father would, albeit reluctantly, accept interim joint custody of the Children.

[4] The Mother submits that the Father should have parenting time with the Children on alternate weekends, from Friday night to Sunday night. The Mother is "open to agreeing to an additional weeknight". The Mother submits the Children should go to a public school in Markham close to where she now lives.

[5] The Father submits that the Mother should have parenting time with the Children every weekend from Friday night to Sunday night. The Father submits that the Children should continue to go to school at Kalsa Montessori School (“KM School”) in Brampton where Avneet has been a student for the past 2 1/2 years.

[6] The materials filed by both parties include numerous affidavits. There is considerable disagreement over many of the facts set out in the affidavits including the party's relationship, what occurred during an earlier separation, the role and attitude of the paternal grandparents, and their respective involvement in parenting the Children prior to separation. Neither party avoided any opportunity to make negative comments regarding the other party or their respective families. This resulted in many responding affidavits which eventually became a "mudslinging" exercise by both parties with both alleging the other is physically abusive, was not significantly engaged in the Children's lives and so on. It is not pretty and raises serious concerns as to what the Children must be going through in what is already a difficult time for them – their parents’ separation.

THE FACTS

[7] The Father is 38 years old. The Father is a pharmacist. He works primarily Friday, Saturday and Sundays.

[8] The Mother is 33 years old. The Mother is an accounts receivable clerk. Up until the separation she worked in downtown Toronto, commuting each day. She now works in Markham on Mondays through Fridays 9-5.

[9] The parties were married on June 26, 2004.

[10] Prior to separation the parties lived with the Father's parents and brother at 7 Modesto Crescent, Brampton.

[11] The Mother's immediate family resides in Chicago but are available to come to the GTA to assist when necessary.

[12] Approximately 2 1/2 years ago, the parties arranged for Avneet to attend the KM School in Brampton. Avneet has attended this school and has excelled. Prior to separation, she had been scheduled to continue at this school for the 2013-2014 year.

[13] Until the separation, arrangements had been made for Harveen to attend the KM School for the 2013-2014 year.

[14] There is no dispute that the Father's parents and, in particular the Children's paternal grandmother, had extensive child care and parenting responsibilities for the Children prior to separation. The Children have a close relationship with their grandparents and, in particular, their paternal grandmother.

[15] The parties had a brief separation in 2011 when the Mother, together with the Children, went to live with a family member in Chicago. The circumstances surrounding how this came to be are not clear but are not significant with respect to the matters to be decided today.

[16] Although the parties reconciled, there remained tension between the parties.

[17] On April 5, 2013, the police attended at their home as a result of an argument. There was no physical altercation noted by the police.

[18] On June 14, 2013, there was another very serious argument between the parties. The police were again called. Again, there was no physical altercation noted by the police. However, the Mother alleges that the Father was physically violent towards her. Later that same night, the Father was taken to the hospital with chest pains. He remained overnight in the hospital.

[19] Shortly after the June 14, 2013 incident, the Father brought an ex parte motion seeking sole custody of the Children as he alleged the Mother would take the Children to Chicago where her parents reside. There were also some text messages between the Mother and her sister that led the Father to believe the Mother might take the Children and move to a shelter. The Father was concerned. The ex parte motion was denied and ordered to be returned on notice to the Mother.

[20] The Father's motion resulted in a motion by the Mother seeking custody of the Children. As a result, there are now cross motions seeking sole custody of the Children with parenting time for the other parent.

[21] After June 14, 2013, the parties continued to reside in the same home. There was at least one suggestion that the Mother move out without the Children. The Mother did not agree to this. Whether the parties had separated or not, the relationship was clearly in serious difficulty.

[22] On June 19, 2013, another argument ensued between the parties and the police were called again. The police were again told it was only a verbal argument and that all parties were going to leave the home and stay in a hotel. The paternal grandmother took the Children to a hotel for the night. The Mother also left the home after speaking to the police.

[23] The parties have not lived together since June 19, 2013.

[24] There have been two temporary orders issued pending the determination of these motions:

a) June 20, 2013 Justice Bielby Consent Order - joint custody with parenting time divided between the parties as set out in paragraph 5 of the Order;

b) July 4, 2013 Justice van Rensburg Consent Order - setting out parenting time throughout the summer as set out in paragraph 3 of the Order

[25] The Mother moved to Markham. On August 6, 2013 she obtained a new job in Markham. She is now seeking to rent her own place in the City of Markham.

THE ANALYSIS

[26] The best interests of the Children are paramount and the only consideration which governs this court's decision - even on an interim basis. See s. 16 of the Divorce Act.

[27] Both parties allege they had major parenting roles with the Children prior to separation. Both downplay the role of the other parent.

[28] Both parties agree that the paternal grandmother did have a major child care and parenting role with the Children prior to separation.

[29] The Father works on Fridays, Saturdays and Sundays. The Father continues to reside with his parents and his brother in the same home the Children resided prior to separation – 7 Modesto Crescent. The paternal grandmother is retired and at home full time. The paternal grandfather is semi-retired.

[30] Prior to separation, the Mother worked Mondays through Fridays in downtown Toronto. She left the home at 5:30 am and would return in the evenings after 7 pm. No doubt this affected the amount of time she had with the Children during the weekdays. With her new job in Markham, the Mother says that she has more time in the mornings and evenings to devote to the Children.

[31] The Mother has enrolled Avneet in a local public school in Markham. Avneet continues to be enrolled at KM School in Brampton. Harveen is also to attend KM School for 2013-2014.

[32] The Mother's affidavits paint a very dark and disturbing picture of the Father. For example, the Mother alleges that the Father has physically abused her but the Father denies this. There is no evidence corroborating this allegation by the Mother but there is some evidence to the contrary. The Mother alleges that the Father was very physically abusive with her on June 14, 2013 (grabbed her by the neck and tried to choke her) when the police were called to the home. However, the police report of that night makes it clear that this was a verbal argument between the parties with no allegations by either party that there had been any physical abuse that night. There is nothing to suggest the Mother has reported the physical abuse she now complains of which is surprising given the very serious nature of the alleged physical abuse. There is another inconsistent aspect regarding the Mother’s allegations. The Mother agreed to several consent orders allowing the Father to have substantial parenting time with the Children. It is hard to imagine the Mother would have agreed to this if what she says about the Father is true in whole or in part. I have great difficulty believing the Mother’s allegations regarding the physical abuse by the Father.

[33] The Father paints a very dark and disturbing picture of the Mother. For example, the Father alleges that the Mother has physically abused the Children. The Mother denies that she slapped Avneet hard across the back but only lightly as a result of Avneet being naughty. The Mother then alleges that the grandmother subsequently made the area look red and sore. It is hard to understand why the grandmother would have done this in 2012. However, the Father didn't report this abuse to the police. It is equally hard to understand why the Father would have taken a photograph of this alleged abuse to record this in 2012 while the parties were still living together.

[34] The Mother alleges that the paternal grandmother took the Children to an unknown hotel on June 19, 2013 as suggestive of the Father's unreasonable approach and the grandmother's desire to distance the Mother from her Children. I am not so persuaded. It was clear to the police on June 19, 2013 that the parties were going to separate hotels for the night to calm the situation down. The grandmother was not "in hiding" with the Children as the Mother alleges. The Father alleges the Mother actually spoke to the Children from the hotel and the Mother was aware of what was going on.

[35] The Mother criticises the paternal grandmother that she is a traditional Indian woman and likely would not be able to prepare the Children for a "Canadian way of life". This criticism seems hollow given that the Mother did for a number of years leave the Children in the care of the paternal grandmother. The Mother seemed to have no problem doing so while the parties were living together. This concern is also difficult to accept given that the paternal grandparents resided in the United Kingdom for 30 years before spending the last 14 years in Canada. There is no real evidence to suggest that the paternal grandparents would cause any emotional harm to the Children or negatively affect their upbringing in Canada.

[36] The Mother suggests that during the reconciliation the Father abandoned the Children by not calling or communicating with them. The Father denies that he did so. It is impossible to determine this issue on this record.

[37] The Mother claims it is better for Avneet to go to a public school to understand and be acclimatised to a Canadian way of life. The Mother now claims that she never favoured sending Avneet to KM School because it is a "Sikh religious private school". I do not accept the Mother's explanation. The Father states it was the Mother who initially wanted Avneet to go to KM School. It does not appear that KM School is a "religious" or fundamentalist school as suggested but it is a Montessori school where Avneet has done very well. Moving Avneet to a new school could very well be disruptive of her education and her social life with her friends. KM School is very close to where the Father resides and would maintain stability for the Children at this time. This concern by the Mother appears to be motivated by the Mother's desire for sole custody and to have the Children attend a school near her.

[38] The Mother suggests that the Father's ex parte motion is indicative of his attitude and desire to exclude the Mother. I disagree. The Mother admits she was considering her options including a shelter. The Mother's family resides in Chicago. I am satisfied the Father’s concerns were real, at least in the Father's mind, but proceeding with an ex parte motion was not the best way to deal with the Father’s concerns.

CONCLUSION

[39] Weighing all of the facts, I am satisfied that the best interests of the Children are to continue their primary residence with the Father at the same home prior to the separation, 7 Modesto Crescent, Brampton. Some of the more significant reasons include:

a) it will allow the Children to continue to live in the same home they were raised in. It should minimize any disruption for their lives and avoid any additional unnecessary stress associated with a major change;

b) it will allow the Children to continue to go to the KM School, for Avneet her third year and for Harveen to go to the same school as Avneet. The school is very close to this home. No doubt, Avneet has friends at the school. This too should minimize any disruption to the Children’s schooling and social network at school; and

c) it will allow the Children's relationship with the paternal grandparents to continue. They have been a significant part of their lives for years and can continue to be so. I disagree with the Mother's suggestion that this places the paternal grandparents ahead of the Mother. That is not the case. The Father is home Monday to Friday mornings allowing him to be the primary care giver but have support and back up from his parents. If the Mother had the Children during the week, it is when she works during the daytime and would have to rely on her uncle's family which, up until now, have not had a major role in the child care of the Children. Unfortunately, the Mother does not have her immediate family in Markham to assist her with the child care of the Children. I am not persuaded that the Father intends to relegate himself to a “secondary parenting position” behind the paternal grandmother. On the evidence before me, the Father has a genuine interest in being a very significant part of the Children's lives and is prepared to share that parenting time with the Mother in a meaningful way, more so than the Mother is prepared to share parenting time with the Father. S. 16(10) of the Divorce Act has application here. The paternal grandmother is only additional support for him and the Children.

[40] The issue now is what should be the parenting time for the Mother.

[41] I am satisfied that the proposal put forward by the Father makes the most sense and is in the best interests of the Children. It permits the Mother to have parenting time during the weekends, every weekend, when the Father works and when the Mother is home. It permits the Father to have parenting time during the weekdays, every weekday, when the Mother works. In my view, this is an ideal situation for the Children and for maximizing the personal parenting time for both the Mother and the Father. On the other hand, the Mother's proposal would more minimize the Father's role in the Children's lives as they would only see him on alternate weekends, when the Father works.

[42] As for the schooling, the Children should continue with KM School as planned. It is in Avneet's best interest to maintain continuity in the school in which she had attended for some time, made friends and has excelled in. The Mother's reasons for proposing to change schools is unreasonable and not in the Children’s best interests.

[43] The Mother submits that "there is clear evidence from both sides that communication and cooperation between the parties is non-existent". The Mother does not want joint custody and submits it won't work. The Father similarly seeks sole custody as the best solution for the Children but would reluctantly agree to joint custody if necessary. Given the allegations made by the parties, I reluctantly agree that joint custody is not appropriate in this case.

[44] The following interim order shall issue:

a) the Father shall have sole interim custody of the Children;

b) The Children's primary residence shall be with the Father at 7 Modesto Crescent, Brampton;

c) the Children shall attend KM School;

d) The Mother shall have parenting time as follows:

i. Each week from Friday 5:00 pm until Sunday evening at 5:00 pm.;

ii. Each week on Wednesday nights from school pick up until 7:00 pm or such other day during the week which the parents agree to in writing;

iii. The Mother shall arrange for the pick-up and drop off of the Children from the school and 7 Modesto Crescent, Brampton;

iv. On long weekends (because of statutory holidays or school closure), the Mother shall have an extra day on each alternating long weekend by either having parenting time for the Friday or the Monday, as the case may be;

v. The parties shall equally divide parenting time during the Christmas holidays, the March break holidays and the summer holidays in a manner to be agreed on in writing at least 3 months prior to the commencement of these periods of time. If the parties cannot agree on such a division, the schedule above continues.

e) Neither party shall speak to the Children regarding this proceeding or make any disparaging remarks regarding the other party or the other party's family;

f) The Children shall not be removed from Ontario without the written consent of the other party, which consent should not be unreasonably withheld; and

g) The Office of the Children's Lawyer shall be requested to investigate this matter. There are allegations involving abuse of the Children which should be investigated.

COSTS

[45] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[46] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[47] There shall be no reply submissions without leave.

Ricchetti, J.

Date: August 28, 2013