Ontario Superior Court of Justice
COURT FILE NO.: FS-10-3626080001
DATE: 20140221
Ontario Superior Court of Justice
Jaideep Singh Bhardwaj v. Guneet Kaur
Counsel:
Chad Rawn, counsel for applicant father
Norman Silver , counsel for respondent mother
Hearing held February 10, 11, 13, 14, 2014
Reasons for Judgment of Backhouse, J. released February 21, 2014
Analysis
[1] The father seeks to vary the final consent order of Justice Goodman dated September 21, 2011 whereby the mother received sole custody of the parties’ daughter, Jaissica Kaur born January 19, 2005. The father seeks sole custody which is in accordance with the report of the Children’s Lawyer dated November 29, 2013. This case falls under s.17 of the Divorce Act, the relevant part of which provides:
- (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
[2] Eva Casino, an experienced clinical investigator with a Master’s degree in Social Work, was the investigator for the Children’s Lawyer who performed the investigation, wrote the report and attended at trial to give evidence. She based her recommendation that custody be reversed on the following:
(1) Jaissica expressed a wish to live with her father and his family on a trial basis for a year and determine what she wants after that;
(2) Concerns about the mother’s hostility to the father and his family;
(3) The mother’s historical neglect of the child’s healthcare which has significantly affected the child;
(4) The child’s report that she is unable to talk to her mother about important relationships and her worries and concerns;
(5) The mother’s failure to be attuned to the child’s anxiety about the mother’s friend, Mr. Khan;
(6) The positive alternative of the father.
Discussion of OCL report and Ms. Casino’s evidence
[3] Ordinarily a report from an investigator from the Ontario Children’s Lawyer deserves considerable weight. In this case, the investigator did not have an interpreter for the mother or the mother’s friend, Mr. Khan. Both required interpreters when they testified and the mother, relied on an interpreter throughout the trial. Four reports were received after the OCL report was complete. Ms. Casino testified that the report is a “snapshot” in time. She took the matter up with her supervisor who confirmed that there is no obligation to consider information subsequently received except in the case of a factual error. She testified that the information can be taken into account by the Court. The 4 reports not taken into account are from Jaissica’s daycare, her optometrist, her dentist and her family doctor. I deal with them more extensively below but in general they go a long way to undermining the OCL’s report. While not entirely Ms. Casino’s fault, regrettably, I have concluded that the OCL report is not a thorough or reliable report and that I should give it little or no weight.
Evidence of the father
[4] The father gave the following evidence. He was born in India on January 29, 1978. He married the mother in India on May 19, 2002. The mother is his first cousin. In 2006, when Jaissica was approximately 1 year old, the father moved to Canada. The mother and Jaissica immigrated to Canada in 2009. They separated on April 12, 2010 when the mother took the daughter to India without his consent. While they were in India, he met the woman to whom he is now married who lived and worked in Stratford. He met the mother and Jaissica at the airport on their return to Canada and served the mother with a divorce petition. In regard to leaving the mother and child without a place to live or support when they returned from India, he testified that she also left him without funds when she removed her earnings from the joint bank account. He testified that he was not in a position to seek custody of Jaissica at that time because she was a small child and very attached to her mother and he had given up the matrimonial apartment and was just sharing a room. He moved to Stratford in 2010. The mother and father divorced in 2011. He entered into Minutes of Settlement on September 21, 2011 agreeing to the mother having sole custody and to exercising alternate weekend access. He testified that he agreed to this because he did not have the funds to have a custody trial. Joint custody was not possible because he had moved to Stratford. He remarried in February, 2012. The father and his new wife had a daughter who was born in 2011 and died in December, 2012 from a rare form of pneumonia. They have another daughter who is less than one year old.
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