COURT FILE NO.: FS-13-78194-00

DATE: 2014 09 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NADIA SABRINA HOSEIN v. ANOOP SINGH DHAMOON

BEFORE: EMERY J.

COUNSEL: Shawn M. Philbert, for the Applicant

Olena Brusentsova, for the Respondent

HEARD: June 17, 2014

ENDORSEMENT

[1] The respondent father, Anoop Dhamoon, brings this motion for a temporary order that is many ways a motion for summary judgment for relief concerning financial issues between the parties, and to determine the parenting of the two children of the marriage.

[2] Specifically, Mr. Dhamoon seeks the following relief:

1. an order requiring the applicant mother, Nadia Hosein to reimbursement him for 50 percent of the carrying costs of the matrimonial home from January 1, 2014 to date;

2. an order requiring Ms. Hosein to pay him an equalization payment in the amount of $7,981.94 or in an amount to be determined by the court;

3. an interim order that the children of the marriage, Aidan Bhudev Singh Dhamoon born on December 6, 2001 and Sophia Ruby Kaur Dhamoon born on March 31, 2005 reside primarily with him and that Ms. Hosein have access to the children from Friday after school until they return to school the following Monday morning (except for every third Saturday from 5:00 p.m. until the following day, being Sunday at 5:00 p.m. during which the children shall reside with Mr. Dhamoon);

4. an interim order that Ms. Hosein pay child support to Mr. Dhamoon for the two children of the marriage pursuant to the Child Support Guidelines;

5. an order that Ms. Hosein pay to Mr. Dhamoon her proportionate share of the Section 7 expenses for the children; and

6. costs.

[3] Ms. Hosein did not bring a cross-motion. Instead, she filed material on the issues and urged the court to make the following orders:

1. an order that the parties have custody and access of the children of the marriage in accordance with Option 1 of Schedule A to her materials;

2. in the alternative, an order that the parties have custody and access of the children of the marriage in accordance with Option 1 of Schedule B to her materials;

3. an order requiring the parties to pay child support and Section 7 expenses for the two children at the table rate in accordance with their respective incomes and in accordance with the shared access schedule;

4. that the remaining issues in Mr. Dhamoon’s notice of motion be adjourned to no fixed date;

5. in the alternative, that the remaining issues in Mr. Dhamoon’s notice of motion be adjourned to either a long motion date or the trial;

6. in addition to the orders she had requested, various collateral orders to be made in the best interest of the children.

Background

[4] The following facts are not controversial.

[5] The parties married on January 19, 2002.

[6] Their son Aidan was born on December 6, 2001. Aidan is currently 12 years old.

[7] Their daughter Sophia was born on March 31, 2005. Sophia is currently 9 years old.

[8] On May 25, 2006, Mr. Dhamoon’s parents purchased the property on Paddington Road in Brampton, Ontario (the “house”), taking title as joint tenants. The house was purchased to provide a home for Mr. Dhamoon and Ms. Hosein and their growing family. Due to the financial situation of Mr. Dhamoon and Ms. Hosein at the time, Mr. Dhamoon’s parents offered them the house to live in on the condition that they pay the mortgage and related expenses.

[9] Mr. Dhamoon and Ms. Hosein occupied the house from May, 2006 to June, 2014, except for the period between March 2007 and February 2010 when Mr. Dhamoon suffered an injury and could not work. The parties and the children moved in to live with Mr. Dhamoon’s parents as they could not afford to cover the carrying costs of the house. During that time, the house was sublet to third parties to cover some of those carrying costs.

[10] The facts become controversial in and after 2010.

[11] In 2011, Mr. Dhamoon’s parents transferred 50 percent of their interest in the property to Mr. Dhamoon and Ms. Hosein as joint tenants. Mr. Dhamoon’s parents continued to retain the other 50 percent interest in the property.

[12] Despite their agreement with Mr. Dhamoon’s parents to pay the carrying costs of the property, between 2006 and 2011 the parties paid only $42,300 out of the $83,500 of the total carrying costs for the house.

[13] In addition, Mr. Dhamoon’s parents loaned the parties approximately $16,000 during 2010 and 2011, mostly to pay for the credit card debts of the parties as well as against Ms. Hosein’s student loan.

[14] Mr. Dhamoon and Ms. Hosein separated on December 26, 2012. They continued residing in the house even though they began to lead separate lives.

[15] After the parties’ separated, Ms. Hosein requested that the house be sold immediately. Mr. Dhamoon made offers to purchase her 25 percent interest, which Ms. Hosein refused. Ms. Hosein brought a motion seeking exclusive possession of the home and a nesting arrangement for the children, among other things. The motion was heard by Justice Andre, who assisted the parties by encouraging Ms. Hosein to allow Mr. Dhamoon to purchase her 25 percent interest. Ms. Hosein finally agreed to a buy-out of her interest and signed a consent which was incorporated into Justice Andre`s order dated March 27, 2014.

[16] On May 23, 2014 Mr. Dhamoon paid Ms. Hosein the sum of $56,524.09 for her 25 percent interest in the property and title to the house was transferred into the names of Mr. Dhamoon and his parents.

[17] Contrary to a term of Justice Andres order, Ms. Hosein has refused to contribute 50 percent of the carrying costs of the house since January 2014. Those carrying costs are estimated to be approximately $2,600 each month. Mr. Dhamoon estimates the total carrying costs of the property between January 1, 2014 and May 31, 2014 to be $12,726.13. Of the $6,363.07 that represents Ms. Hoseins share of those expenses, she has paid only $2,987. Mr. Dhamoon claims that Ms. Hosein owes $3,566.07 to him for her 50 percent share of the carrying costs, plus $190 for the bank charge when a cheque did not clear because Ms. Hosein had not paid her share of the expenses. He also claims that she owes at least $1,100 for her share of the carrying costs for the month of June 2014.

[18] Ms. Hosein has purchased a townhouse for herself. The purchase of that townhouse was expected to close on June 20, 2014. As of the date of the motion, it is not known whether Ms. Hosein has since moved into her new residence.

[19] The children have lived with their parents in the house continuously since 2010. It is the only home they know.

[20] Mr. Dhamoon deposes that he has been the primary caregiver to the children with the exception of the first few years of their lives.

[21] Mr. Dhamoon also deposes that his parents, Karim Singh Dhamoon and Krishna Kaur Dhamoon have assisted the parties with taking care of the children on a daily basis since the children were very young. They live close to the house where the children reside, and have wonderful and loving relationship with Aidan and Sophia. There is also evidence that Mr. Dhamoon’s parents have provided the parties with extensive and significant financial assistance throughout the marriage.

[22] Mr. Dhamoon has deposed that while his work schedule is often busy, with the assistance of his parents he has been able to maintain a stable routine for the children following the separation from Ms. Hosein. He deposes that he and his parents get the children ready for school in the morning, take them to school, pick them up from school, feed them, do their homework with them and take them to their activities and to visit their friends.

[23] Mr. Dhamoon describes how Ms. Hosein has stayed out late on many Thursday, Friday, and Saturday nights over the last year and that her absence has been noticed by the children.

[24] Mr. Dhamoon acknowledges that the children should have a good relationship with their mother. On numerous occasions, he has suggested that the parties attend a parenting coordinator to assist them with creating a parenting plan which would be in the children’s best interests and allow the parties to effectively co-parent their children. According to Mr. Dhamoon, Ms. Hosein has ignored these suggestions.

[25] Ms. Dhamoon describes how Ms. Hosein works from Monday to Friday from 8:15 in the morning until 5:00 in the afternoon three weeks per month, and from 12 noon to 9:00 p.m. one week per month. She works from 8:15 in the morning until 9:00 on the last day of every month, and that she also works some Saturdays.

[26] Mr. Dhamoon has proposed an access schedule that would maintain the stability for the children and encourage them to have a close relationship with both parents. The children would continue to have their primary residence at the house with Mr. Dhamoon. The following access schedule would then be:

1. Monday to Friday morning – with Mr. Dhamoon

2. Friday after school until they are returned to school on the following Monday morning – with Ms. Hosein

3. Every third weekend from Saturday at 5:00 p.m. until the next day, Sunday at 5:00 p.m. – with Mr. Dhamoon

4. On the week the children are with their father, Ms. Hosein would have access to the children on Wednesday from 6:00 p.m. to 8:00 p.m. for dinner.

[27] Mr. Dhamoon states in his affidavit that he is now agreeable for the court to order that an assessment be made on the custody and access to the children, under Section 30 of the Children’s Law Reform Act.

[28] Ms. Hosein does not agree with Mr. Dhamoon’s proposed custody and access schedule, as it denies her significant access to the children. She is also concerned about Mr. Dhamoon’s continued and deliberate acts of alienating the children from her.

[29] Ms. Hosein has proposed two options for an interim parenting plan that provides each parent with equal access to the children. Those options are set out in Exhibits G and H to her affidavit and are very detailed on a day by day basis for rotating two week periods each month. Each option for custody and access to the children is designed to provide shared custody and access for the children on a 50/50 basis.

[30] Ms. Hosein expresses her insistence that the normal routine of the children not be disrupted. She has now purchased her own home on Franklin Court, in Brampton. As of the date of the motion, she expressed her intention to leave the house where Mr. Dhamoon resides by June 20, 2014. However, she has also stated in her affidavit that she requires an interim access and custody plan in place prior to her departure.

[31] Ms. Hosein emphasizes in her affidavit and in argument that custody of and access to the children and a shared parenting regime for them is her prime concern. She argues that Mr. Dhamoon’s priority focuses on financial aspects of the issues between them, namely recovering of her share of carrying costs for the house since January 1, 2014, equalization of net family properties in his favour, lawyer fees and, depending on the outcome of this motion, child support and Section 7 expenses for the children.

[32] Ms. Hosein describes in her affidavit that her new home on Franklin Court is located within a 15 minute drive of the children’s school. As she is employed by Nissan Canada in Mississauga, her proximity during school hours is close to the children and during the time they reside with her, the children’s routine can be maintained. She deposes that the times they wake up for school, carry out activities, and visit friends from each home will be consistent and should not cause a disruption to their lives. Her new townhouse and her job allow for a stable transition for the children living in one home to a life in two loving homes.

[33] She also states that effective July 1, 2014 she was to commence a new position as a Discounter in the Funding Department of her employer, Nissan Canada. This new position would allow her a flexible schedule to work any one of the following shifts:

• 8:00 a.m. to 4:00 p.m.;

• 8:30 a.m. to 4:30 p.m.; or

• 8:30 a.m. to 5:00 p.m.

She would no longer be required to work on Saturdays and would therefore be available for the children.

[34] Ms. Hosein disputes Mr. Dhamoon’s claims that the needs of the children were met by himself, his sister and his parents with little involvement from Ms. Hosein while she lived at the house post separation. However, she provides little detail of that involvement on a day by day basis.

[35] A word about the involvement of the parents of each Mr. Dhamoon and Ms. Hosein in caring for the children. Mr. Dhamoon has deposed that his parents serve an integral part of the upbringing of the children and his proposed custody and access arrangement for them. Ms. Hosein has deposed that her mother has a great relationship with the children and is willing to assist her with before and after school care of the children. Elsewhere in the affidavit, she deposes that her father would be at home when the children return from school and would ensure that their homework is done in the afternoon until she gets home. As such, her plan involves his father and his wife being available to care for the children at her new home during the weeks the children are at camp or in school, and having her mother stay with them during the weeks they are at home.

[36] Ms. Hosein states that Aidan attends a middle school that is located 15 minutes by car from her new home. He was in grade seven in June, 2014 and was not enrolled in any after school program.

[37] She states that Sophia attends a public school, which is located 15 minutes by car from her new home. Sophia was in grade five in June, 2014 and was not enrolled in any after school program.

[38] Ms. Hosein expresses some concern about the children not having the habit of tidying up after themselves or doing things on their own around the house. She states that she would like them to become responsible for their rooms, sharing responsibility to make sure that the common areas of the house are tidy, and taking pride in their home. She states that when she lived in the house, she would often make them clean their rooms and put their laundry away, but that she encountered resistance because Mr. Dhamoon does almost everything for them. In fact, she says that he has called her a “drill sergeant” in front of the children.

[39] Ms. Hosein states that she would like to communicate better with Mr. Dhamoon about the extracurricular activities, school work and other facets of the children’s upbringing and their needs. It is part of her parenting strategy to work on communication with Mr. Dhamoon. She is willing to sign up for the Family Wizard Program, in an effort to assist with communicating better with Mr. Dhamoon.

[40] Ms. Hosein takes the position in her affidavit that Mr. Dhamoon seeks child support or spousal support from her to maintain his lifestyle. It is her position that Mr. Dhamoon’s refusal for a reasonable access arrangement to the children is motivated more by his desire to receive support than the best interests of the children.

[41] It is Ms. Hosein’s position that Mr. Dhamoon’s proposal that the children reside with her for four overnight visits within a 14 day period is not in their best interests. It is her view that he intends to have his parents replace her in the lives of the children, which is not in their best interests.

[42] Ms. Hosein speaks to Mr. Dhamoon’s cultural beliefs in her affidavit, that he, as the father, has the right to determine the lives of the children and that the next in line is his parents, and then the children’s mother. She states that this is not in the children’s best interest. She states that as their mother, the children need her and Mr. Dhamoon as their primary caregivers. She states that Mr. Dhamoon’s constant action of minimizing her role and importance in the children’s lives is not what is best for them. She is concerned that if Mr. Dhamoon is granted the access schedule he seeks, the children will become alienated from her.

[43] In her affidavit, Ms. Hosein disputes Mr. Dhamoon’s claim to recover unpaid carrying costs for the house from her, between January 1 and June 20, 2014, both in terms of what she has paid towards those expenses and what amounts Mr. Dhamoon as deposed in his affidavit he has spent.

[44] Ms. Hosein also disputes Mr. Dhamoon’s claim for an equalization payment at this time. She states that the discrepancy between calculations in her net family property statement of $7,349.37 on one hand, and $7,981.94 on the other because of the differences in the income tax rate to be applied to her pension valuation and gross up for taxes. There was no evidence before me of that pension valuation, or evidence about how the two calculations can be reconciled on applicable tax principles.

[45] Ms. Hosein also states that Mr. Dhamoon did not file an updated financial statement prior to the motion, contrary to Family Law Rule 13(1) and (12).

Analysis

[46] There is an unequal balance of power between Mr. Dhamoon and Ms. Hosein. It is significant that Mr. Dhamoon’s parents purchased the house in which this family has made its life. Ms. Hosein has now sold her interest in the house. She has purchased a townhouse in Brampton and likely moved there on June 20, 2014. That the children continue to live in what they know to be the family home with Mr. Dhamoon, and go about their daily lives assisted by their paternal grandparents, only emphasizes the point.

[47] Ms. Hosein is, by all accounts, a good mother. I must weigh the evidence given regarding the status quo with the evidence Ms. Hosein has given before this court about the parenting plan she proposes. I can assure the parties that I am mindful of the maximum contact principle between each parent and child enshrined in Section 16(10) of the Divorce Act.

[48] I also recognize that Ms. Hosein is starting a new life on her own. She may have started that new life while living at the house with Mr. Dhamoon and the children. This new life sometimes kept her out at night with colleagues from work or with friends. References made in Mr. Dhamoon’s affidavit about how she would sequester herself in her room when living at the house after they had separated could have occurred for many reasons. Under Section 24(3) of the Children’s Law Reform Act, the past conduct of a person is not relevant to the determination of custody or access issues unless the conduct is relevant to the ability of the person to act as a parent. The ultimate consideration for the court is always what is in the best interests of the children: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 (S.C.C). Her state of mind and consequent behaviour, post-separation, while at the house should not be taken as indicators of her intention or ability to share parenting of the children.

[49] The evidence shows that both Mr. Dhamoon and Ms. Hosein love their children and desire a parenting plan that will serve their best interests. However, due to the timing of the motion, the court has no evidence about when Ms. Hosein has moved to her new home on Franklin Court, the characteristics of that home suitable to co-parent the children, and her actual circumstances for providing parenting directly or with the assistance of relatives.

[50] It would seem that the status quo of both children living with the father at the house on Paddington Road should remain the foundation for any temporary order relating to custody, access and parenting. In circumstances like those on this motion, courts are reluctant to change the status quo where the children are settled into accustomed living situations unless there is cogent evidence of a good reason to order a change, or a serious concern about the ability of the primary caregiver: Bortolotto v. Bortolotto, 2002 CarswellOnt 1717 (Ont. Master) and Papp v. Papp 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 (Ont.C.A.).

[51] In making this determination, I have considered the evidence before the court on this motion with respect to the best interests of the children, and the factors under Section 24(2) of the Children’s Law Reform Act. Those factors are:

The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[52] For the time being, it would appear upon applying those factors to the evidence that the primary residence of Aidan and Sophia, at least for the school week, should remain with their father at the house they know as their family home, with generous access to their mother.

[53] I am generally more impressed with Mr. Dhamoon’s schedule for Ms. Hosein’s access to the children for two reasons. First, it is my view that Ms. Hosein’s access schedule contains too many variations, too many participants as back up persons to pick up and care for the children after school, and too many moveable parts to make it work cohesively as a comprehensive arrangement. The parties agree that any plan for access must be the least disruptive to the routines of the children, and I commend them for recognizing that fact. It is not in the best interests of the children at this time for the parties to share parenting on a variation of the week about model unless there is better evidence from Ms. Hosein before the court.

[54] Second, I am taking into account evidence from Mr. Dhamoon’s affidavit in reply that Ms. Hosein depends upon the assistance of her mother and her father and his wife to support her plan for shared parenting. According to Ms. Hosein’s affidavit, her new townhouse is a 15 minute drive from the school of each child. Mr. Dhamoon has deposed in an affidavit in reply that Ms. Hosein has issues from time to time with her own mother which leaves them on non-speaking terms, sometimes for months. Further, Ms. Hosein’s mother does not drive. The reply evidence also discloses that Ms. Hosein’s father and his wife reside in the Niagara region. This evidence leads me to conclude the supporting arrangements for Ms. Hosein’s parenting plan that depends upon her parents are not sufficient to make that plan feasible at this time.

Orders

[55] The parties are therefore granted joint custody of both children on a temporary basis, with their primary residence to remain with Mr. Dhamoon. Ms. Hosein shall have access to the children from Friday after school until she returns them to school the following Monday morning, and from after school each Wednesday until she returns them at 8:00 p.m. to Mr. Dhamoon. Where one parent cannot care for the children when they have custody of or access to the children for a period of greater than six hours, that parent shall notify the other parent of that fact and the other parent shall have the right of first refusal to pick up and care for the children for that day and night. These orders are made without prejudice to the position of either party at trial.

[56] I have not included in this order that the children shall stay with their father from 5:00 p.m. on Saturday until 5:00 p.m. on Sunday every third weekend. I have omitted to include this term in view of Ms. Hosein’s evidence in her reply affidavit that she no longer is required to work on Saturdays at Nissan Canada.

[57] In view of my decision that the parties shall have interim joint custody of the children with generous access to Ms. Hosein, I calculate that Ms. Hosein shall have access to the children at least 40 percent of the time by having them with her six nights out of 14, and Wednesday evening each week. I therefore order that Ms. Hosein pay interim child support in the amount of $160 per month, being the net payable under the child support guidelines after Mr. Dhamoon’s deemed support of $614 based on his $42,000 income is set off against the $774 Ms. Hosein would otherwise be required to pay on her annual income of $52,000.

[58] I further order Mr. Dhamoon and Ms. Hosein to contribute 45% and 55% respectively to any section 7 expenses for the children on an interim basis.

[59] The parties agree that it would be helpful for the trial judge to have an assessment by a person having the necessary skills and qualifications about the custody and access of the children available at trial. An order will go on consent for a properly qualified person to make an assessment of all custody and access issues relating to the parties and their children under Section 30 of the Children’s Law Reform Act. The costs of that assessment shall be borne equally by Mr. Dhamoon and Ms. Hosein.

[60] I am adjourning the balance of Mr. Dhamoon’s motion to be dealt with at trial. Even if Mr. Dhamoon brought his motion as a summary judgment motion under Family Law Rule 16(6), the conflicting evidence about what amounts the parties owe and what they have paid for carrying costs at the house since January 1, 2014 in the affidavit material is a genuine issue that requires a trial. The discrepancy between what Mr. Dhamoon claims to be an equalization payment of $7,981.94 that Ms. Hosein should pay him and the $7,349.37 she has deposed should be the actual number for the pension valuation arises because of the difference in the notional tax treatment. Although only $600 apart, the issue deserves adjudication on proper evidence that was not before the court on this motion and is therefore a genuine issue for trial. Unless and until changes are made to Family Law Rule 16 similar to those changes to Rule 20 of the Rules of Civil Procedure for summary judgment, I can take the inquiry no further on motion.

[61] Given the divided success on this motion, I am not inclined to award costs to either party unless there have been offers to settle served. If that is the case, I invite written submissions on costs with the relevant offer to settle attached by September 29, 2014 by fax to my judicial assistant, Sherry McHady, at 905-456-4834 at the Judges’ Chambers in Brampton.

Emery J

DATE: September 17, 2014

COURT FILE NO.: FS-13-78194-00

DATE: 2014 09 17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NADIA SABRINA HOSEIN v. ANOOP SINGH DHAMOON

COUNSEL: Shawn M. Philbert, for the Applicants

Olena Brusentsova, for the Respondent

ENDORSEMENT

EMERY J.

DATE: September 17, 2014