Court File and Parties

COURT FILE NO.: FS 12 4865-00

DATE: 20131220

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nikita Surana, Applicant (Mother)

AND:

Kapil Surana, Respondent (Father)

BEFORE: Ricchetti, J.

COUNSEL:
A. Medhekar, Counsel, for the Applicant
M. Tweyman, Counsel, for the Respondent

HEARD: December 19, 2013

ENDORSEMENT

THE BACKGROUND

[1] The parties were married on November 20, 1999. There are three children of the marriage: Samraddhi (Oct. 19, 2001), Suyog (July 1, 2006) and Sanyog (July 1, 2006) (Children).

[2] The Father is a dentist. The Mother has a Masters of Commerce but has not worked since coming to Canada in 2003.

[3] The parties lived at 8 Fogerty Street, Brampton, Ontario (Matrimonial Home).

[4] The parties had serious marital difficulties in 2011. They attempted to reconcile for a period of time. Eventually, the parties separated on November 8, 2012. However, the parties continued to live separate and apart in the Matrimonial Home with the Children.

[5] The mother commenced this application on November 28, 2012, more than a year ago.

[6] An early case conference was heard on December 17, 2012 but adjourned to April 5, 2013. The Father was required to maintain all household expenses and children’s costs. He has done so to date.

[7] No motions were brought by either party for support, custody or any other relief sought in the Application or Answer.

[8] A settlement conference was held on July 5, 2013.

[9] On September 13, 2013 the Mother brought a motion returnable October 1, 2013 for financial disclosure and spousal support. It is important to note that no orders relating to “children” related issues were sought by the Mother.

[10] On October 1, 2013 the motion was adjourned to November 4, 2013. The Mother’s motion was heard by Justice Seppi.

[11] The Mother alleged she had financial difficulties in moving out of the Matrimonial Home. Justice Seppi ordered that the Father pay $5,000 per month as interim spousal support. Justice Seppi was not asked to and did not deal with child support, custody, access or parenting time for the Children. At the time that Justice Seppi heard the motion; the Mother and Father continued to reside in the Matrimonial Home with the Children. Justice Seppi wrote: “the Order also assumes the applicant will be moving into separate accommodations no later than Jan – 15, 2014.

[12] Throughout the many attendances in court and despite both parties were represented by counsel, neither the Mother nor the Father sought any orders with respect to the Children.

[13] The Mother’s counsel had been advised at least three weeks earlier (November 21, 2013) that the Father opposed the Mother taking the Children from the Matrimonial Home. Mother’s counsel did not respond to this letter.

[14] Without advising the Father in advance or seeking a court order, while the Father was at work, on December 13, 2013 the Mother unilaterally moved out of the Matrimonial Home and took the Children with her.

[15] The Mother’s counsel advised the Father’s counsel after the Mother had left with the Children.

[16] The Father was understandably upset but he responded properly by bringing his motion for a court determination of parenting time for the Children.

The Father’s Motion

[17] On December 16, 2013 the Father brought a motion seeking the return of the Children to the Matrimonial Home with parenting time with him in the Matrimonial Home as follows:

a) Tuesday evenings to Wednesday morning; and

b) Fridays after school until Monday mornings.

THE MOTHER”S CROSS MOTION

[18] In response to the Father’s motion, the Mother brought a cross motion seeking:

a) an order that the Children be in her primary care;

b) the Father have parenting time with the Children on alternating weekends and for Wednesday dinners;

c) Child support; and

d) None removal of the Children from the jurisdiction.

THE POSITION OF THE PARTIES

[19] The Father states that he has always been an integral part of the Children’s lives. He states that the Mother has done her utmost to poison his relationship with the Children and has been trying to position herself for the family law litigation.

[20] The Mother states that the Father is abusive and controlling. She alleges that he has been physically and emotionally abusive to her and to the Children over the years. She claims she moved out for the safety of herself and the Children.

THE CHILDREN’s Aid society (CAS)

[21] CAS was first involved with this family in 2010 as a result of what one child said to a teacher. CAS investigated. The Mother told CAS that an allegation by the Children that their father hit them was made up. The Father produced a CAS document from 2010 showing that there were no concerns regarding the Children and that the Mother had described him in positive terms. The reason this historical document is of importance is that, despite extensive discussions CAS had with the Mother, she raised none of the abusive conduct or safety concerns she now claims the Father has shown over the many years. The document contains references that are supportive of the Father’s claim he has been significantly involved in the Children’s lives and certainly appeared to be so involved in 2010.

[22] It is important to keep in mind that in 2010 the parties were not in the midst of a matrimonial dispute. As I stated above, the matrimonial dispute started at the end of 2011.

[23] The CAS again became involved in 2012 as a result of the Mother’s request. Although I do note that at one time in early 2012 the referral was made by a doctor. However, reviewing what occurred, the Mother had gone to the doctor and made allegations regarding abusive conduct by the Father. In any event, it appears the CAS did an investigation and no actions were taken by the CAS with regard to the referral.

[24] The Mother includes a number of other CAS documents relating to 2012. It is clear that the parties were already positioning themselves for the future family law dispute. The difficulty I have with the CAS documents produced by the Mother is that:

a) they are dated (2012);

b) she failed to produce any 2013 or up to date CAS documents as she advises the investigation continues and there may be some documents (which have been produced to the parties) which are more current but not before this court. There is no conclusion or recommendations by the CAS as to safety concerns or child protection issues;

c) she relies on documents which recite her allegations of abuse but this is not proof of the allegations;

d) she interprets certain parts of the documents as implicitly supporting her concerns of abuse, when no such reasonable interpretation is appropriate. If the CAS was concerned it could have and would have said so clearly;

e) there is no conclusion by the CAS regarding the Mother’s allegations; and

f) there appears to be no concerns (at least at the present) by CAS regarding physical or emotional abuse. One 2012 CAS report concluded that “Based on the above information, these children remain safe at this time.”

[25] What is clear from the CAS reports is that there was considerable conflict between the Mother and the Father and this was having a very serious negative impact on the Children. The allegations of one parent against the other and using the CAS and police to try to get leverage over the other is appalling. All one has to do is read the Peel Children’s Centre report of April 12, 2013 to realize the impact on the Children.

THE ANALYSIS

[26] Despite many repeated requests as to why the Mother chose to remove the Children from the Matrimonial Home in these circumstances without advising the Father or obtaining a court order was never answered. The Mother’s counsel could not point to any imminent or urgent circumstances in early December which prevented her from advising the Father in advance or obtaining a court order.

[27] The Mother’s attempts to justify her unilateral and unannounced self help with the fact she now has a good home for the Children, that Justice Seppi’s Order did not expressly prevent her from moving out with the Children or that she is the primary caregiver of the Children and therefore it is in the Children’s best interests to remain with her. However, these explanations still fail to answer why she would take such steps without advising the Father or obtaining a court order. The Mother’s interpretation of Justice Seppi’s order while correct is troubling that she would try to justify her self help actions on this basis.

[28] The Mother’s continued retreat, in counsel’s submissions, to historical allegations of abuse (which are denied by the Father) do not explain her self help actions in December. The Father’s counsel correctly points out that these allegations are general in nature and unproven.

[29] The fact the Mother alleges that the Father was listening in on her conversation with a CAS representative, does not explain her self help actions in December. I am not certain how this helps the Mother’s alleged safety concerns which she alleges prompted her to unilaterally move out without notice.

[30] The fact the Father has worked long hours and travelled in the past does not explain her self help actions December.

[31] Many of the Mother’s arguments make little sense as she exaggerates and reads into events and documents more than is really there. For example:

a) After the Mother left with the Children, in the following few days, the Father wrote an number of emails/texts which clearly showed his concern for his Children and that he missed them. The Mother suggested this was evidence of control by the Father!

b) The police removed the Mother from the Matrimonial Home on one occasion. The Mother suggested that the police were biased because the Father had called the police and he was a professional. As a result, the Mother alleges the police improperly concluded the Mother a liar.

[32] The Mother’s allegations regarding the Father’s abusive behaviour and her departure for “safety” reasons make no sense when the Mother proposes that the Father have the Children alternating weekends. I asked why the Mother would suggest this – if her allegations were true, wouldn’t the Father be abusive on those weekends? Why wouldn’t the Mother have safety concerns during those weekends when the Children are with the Father?

[33] Clearly, what is in the best interests of the Children is the court’s prime directive in matters such as this.

[34] I do not mean to suggest that the Mother shouldn’t have moved out of the Matrimonial Home but do suggest that the manner in which she proceeded reflect poorly on her desire and intention to put the Children’s best interests first.

[35] While keeping in mind that the overriding consideration of the Children’s best interests, there are several factors which this court should also keep in mind:

a) The allegations of abuse are denied. The allegations of abuse are unproven. The allegations have been investigated by the CAS without any finding of abuse;

b) The status quo is that both parents jointly parented the Children during more than a year during this litigation. Neither party thought it was necessary to obtain a court order for parenting. The Mother’s unilateral actions would alter that status quo and give her potentially an advantage in the litigation. Such conduct is to be discouraged by this court;

c) The Mother’s submission that parental conduct should be considered cuts both ways. The Mother submits that the Father is abusive. The Father submits that the Mother’s actions were unilateral, unnecessary and an attempt to harm the Children’s relationship with the Father.

[36] The Mother’s submission that she now has a condominium which has amenities for the Children and the location of the condominium is close enough not to disrupt the Children’s schooling and other aspects of their lives. I do not see that this is a relevant factor in the circumstances of this case where the Mother created this situation.

[37] The Children lived in the Matrimonial Home and the parents were happy and content with this arrangement for years. There is a disruption to the Children by the Mother’s actions taking them from the Matrimonial Home. The Children have been deprived of time with the Father.

[38] All of this takes me to the question – what is in the Children’s best interests? In this case it would be to maintain the status quo. However, that is not possible given the high conflict and the Mother’s decision to move out. As a result, what the court must fashion is some arrangement whereby some form of the status quo is maintained without prejudice to what the trial judge might ultimately order upon hearing all of the evidence. Initially, a week about parenting arrangement was considered but rejected because of the Father’s work schedule. Then a nesting parenting arrangement was considered but this adds considerable costs as the Father would have to find other accommodations when the Mother resides in the Matrimonial Home.

[39] In my view, the Father’s proposed parenting time is closest to maintaining the status quo and is in the Children’s best interests as it will allow them to spend time with both parents and continue to reside at the Matrimonial Home each week.

CONCLUSION

[40] The following interim without prejudice order shall issue:

a) There shall be joint parenting of the Children. All major decisions regarding the Children shall be jointly made;

b) The Father shall have parenting time with the Children (in the Matrimonial Home or such other residence as the Father may reside in) as follows:

i. December 20, 2013 at 5 pm to December 30, 2013 at 10 am.

ii. Thereafter every weekend from Friday night after school until Monday mornings at school. This shall be extended by the Friday or Monday should the weekend be a long weekend.

c) The Mother shall have parenting time with the Children at all other times; and

d) The parties shall only communicate in writing (i.e. email or texts) and only with respect to matters involving the Children.

[41] The above order is without prejudice to any motion or cross motion with respect to child support/ s.7 expenses as this issue was not fully argued given that the court needed to make a decision on parenting time which might impact any child support issues.

COSTS

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

[43] 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.

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

Ricchetti, J.

Date: December 20, 2013