COURT FILE NO.: FS-10-70708-00
DATE: 20150611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
UPINDERJIT KAUR NARU
Applicant
- and -
GAGANBIR SINGH NARU
Respondent
Counsel: Aida Pasha, for the Applicant Self-represented, Respondent
HEARD: January 7-9, and May 11-12, 2015
REASONS FOR JUDGMENT
Seppi J.
[1] The applicant wife, Upinderjit Kaur Naru, began this divorce application in November 2010 when the parties’ son, Jasraj, was one year old. At the time the respondent husband, Gaganbir Singh Naru was in India where the parties have been temporarily residing while caring for the respondent’s mother who was ill. The applicant left India and moved back to Canada in September 2008 while pregnant with Jasraj. Jasraj was born in Ontario on March 2, 2009. He has always lived with his mother.
[2] The issues on this trial are the custody and access of the child Jasraj Naru, and permission for Jasraj to travel out of the country without the respondent's consent, as sought by the applicant.
[3] The couple married on May 30, 2004 in India. The separation was in September, 2008 when the applicant left the respondent in India. They were divorced on October 15, 2013 by order of this court.
[4] The applicant came to Canada on a spousal sponsorship. She has a master’s degree in languages and was a teacher in India. She now works locally in retail.
[5] The respondent is a Canadian citizen who primarily lived in this country since his immigration from India in 1997. He trained as a professional engineer in India and now works in a related field in Canada.
[6] At trial the applicant sought sole custody of Jasraj, initially with only very limited supervised access to be allowed for the respondent. When the trial was interrupted due to court scheduling issues and this court granted unsupervised access for the respondent in the interim, she amended her claim to allow unsupervised access, but still with highly restricted terms and duration.
[7] The respondent seeks joint custody and expanded unsupervised access to Jasraj. He agrees to the child having his primary residence with the applicant. He opposes unrestricted permission for the applicant to travel out of the jurisdiction. He is concerned about losing regular contact with Jasraj fearing the applicant would move the child to India where all her siblings and parents live.
[8] The parties characterized their marriage and separation from completely different perspectives. The applicant tells of being controlled by the respondent to the point of being a prisoner in her own home, and not being allowed to communicate with her parents, friends or relatives. The respondent points out he was at work every day and the applicant was free to come and go as she wished when they lived together in Canada.
[9] The applicant also alleges violence being perpetrated by the respondent and states she was fearful to leave the respondent’s control. It is probable the applicant felt intimidated by the respondent’s domination in the context of her life in an unfamiliar environment. In her daily isolation she turned to others of her cultural community for advice and moral support. This upset the respondent. He believes she was coerced by these outside forces, who were interfering with the harmony of the marital relationship.
[10] The separation occurred when they were in India. The respondent tells of the applicant being dragged away from his parents’ home by eight or nine adults some of whom he recognized as her relatives. The applicant claims the respondent refused to let her go when she wished to leave the marriage, that he fought with her parents, who finally took her to the local police station so she could get her things with their assistance. After separating, the applicant stayed with her parents in India for about a month before returning to Canada. When she came back, she was two and a half months pregnant with Jasraj. She lived with a cousin upon her return.
[11] After Jasraj was born on March 2, 2009, the applicant applied for and lived on social assistance. This was the impetus for this application as she was required to make her claims for child support. She did not inform the respondent about the birth of the child until after she commenced this application. On the statement of live birth, which was registered, she claimed to be unmarried. She did not show the respondent as the baby’s father. Although, this was rectified by her after these proceedings were commenced, such actions support the conclusion that she did not want the respondent to be a part of the child’s life.
[12] After the respondent was served, he promptly returned to Canada. He claimed he did not know he had a child until he was served with this application. As I detail in the mid-trial endorsement, dated January 9, 2015, which for the first time allowed the respondent unsupervised access to Jasraj, the applicant’s request that access be supervised does not have merit. This is so, despite the O.C.L. worker’s recommendation based on her concerns about the husband’s preoccupation with potential influences by members of a certain Sikh cult on the applicant. My reasons for rejecting the O.C.L.’s recommendation regarding supervised access are detailed in the above-referenced interim endorsement.
[13] I have found and continue to find there is no risk of harm to Jasraj if allowed to have unsupervised access with his father. Indeed, it is in the best interests of the child to be given the opportunity to bond with his father. A meaningful relationship between parent and child is essential to the child’s healthy emotional and social development, and it is in his best interest. As detailed in the above-referenced endorsement, the respondent’s bona fide efforts at building a relationship with his son were detrimentally undermined by the conduct of the applicant. The evidence after the interim order has confirmed this court’s conclusion that Jasraj needs more time with his father, free of the mother’s control.
[14] As of January 2015 when the interim order was made, regular unsupervised access by the respondent has taken place. Except for some difficulties of scheduling due to the parties’ work schedule, it has served to foster the father-son bonding process.
[15] The applicant still opposes overnight access for another two years. She then would consider a further review. The respondent recognizes the need for a gradual transition to more time with the child. He is not opposed to giving the child more time to be fully comfortable in his care. He would like overnight access to begin in about three to four months. In the meantime he wishes to gradually expand the time on weekends from three hours to one day each weekend.
[16] The applicant claims the parties cannot communicate and there is too much conflict between them for joint custody. She relies on text messages which show the parties’ disagreements on access scheduling. Most often, the difficulties relate to Thursday evening access, which the respondent highlighted as a problem due to his work schedule. He would require access to take place on weekends in order that he can arrange his work schedule and for changes not to be as frequent.
[17] Even with these scheduling issues I find the parties have each been able to make reasonable compromises as needed to resolve any disputes. Under the interim order, which has been in effect for some time, the parties have had joint custody. This did not materially impair a working parental relationship between the parents. Where disagreements have arisen, these were resolved without undue acrimony. There are no disagreements about the child’s religious or educational decisions. The respondent agrees with the decisions the applicant has made for Jasraj. He considers her to be a nurturing parent for the child and takes no issue about her day-to-day care
[18] In the circumstances of this case, where there is a history of the applicant attempting to severely restrict or even eliminate the father from the child’s life, I find it would not be in Jasraj’s best interest for the applicant to be given sole custody. Terminating the current joint custody would undermine the progress the parties have made in jointly parenting Jasraj. There is also a risk that with sole custody and control the applicant would again resort to efforts to eliminate the respondent’s parental role in the child’s life, and to keeping him away from the father, rather than fostering a cooperative environment between the parents. This would not be in his best interests.. On the evidence, I find that as long as each parent respects the other’s parental role, the parties will continue to be able to jointly parent Jasraj as he grows and matures. The best interest of the child will be served if the parents continue to have joint custody. It is in the child’s best interest to have both parents fully involved in his life.
[19] Based on evidence of the applicant’s limited ties to this jurisdiction, her strong family presence in India, and the history of her efforts to eliminate the respondent from his parental role, I find the respondent’s concerns regarding the applicant’s potential move to India are reasonable. There will therefore be no order dispensing with the respondent’s consent for Jasraj to travel out of the country with the applicant. The parties need to fully inform each other about travel plans with the child to satisfy the other parent of the bona fides of the proposed travel and their intention to ensure the child returns to Canada.
[20] A final order will therefore go as follows:
The applicant and respondent will have joint custody of the child, Jasraj Naru, born March 2, 2009.
The primary residence of the child shall be with the applicant mother. The residence of the child shall not be moved beyond a 30 kilometer area from his present residence, without the written consent of the respondent or court order.
The child shall be with the respondent father as follows:
a. For a period of four hours each weekend, alternating between the Saturday and Sunday on the weekends from 10am to 2pm until the end of June 2015.
b. In the month of July 2015 for six hours each weekend from 10am to 4pm alternating between the Saturday and the Sunday of the July weekends.
c. In the month of August and September, 2015 for eight hours each weekend from 10am to 6pm, alternating between the Saturday and the Sunday of the August and September weekends.
d. Overnight weekend access will be in effect thereafter, commencing on October 3, 2015 from 10am on Saturday to 6pm on Sunday. This will continue on alternating weekends, such that one weekend the child is with the applicant and the other he is with the respondent.
e. Access from 2016 to 2019 as follows:
i. In summer vacation in 2016 the child will have two non-consecutive weeks of summer vacation with the respondent, being one week in July 2016 and one week in August 2016.
ii. Thereafter in 2017 the child will have three weeks of summer vacation with the respondent, being two weeks consecutive and the third week non-consecutive.
iii. In 2018 this will be expanded to three weeks consecutive or non-consecutive summer vacation with the respondent and as of summer 2019 it will be 4 weeks consecutive, or non-consecutive, for the child to be with the respondent.
iv. Each year the respondent shall inform the applicant of his choice of summer vacation weeks by no later than May 15th.
f. Pick-ups and drop-offs of the child by the respondent shall be at the applicant’s home, provided that if the applicant is at work or unavailable for the exchange, she shall inform the respondent in advance of the replacement location and person who will be in attendance for the pickup and drop off of the child.
The respondent shall have five days overnight access during the Christmas school vacation period each year commencing December 2015. The applicant will choose the days for 2015, the respondent will choose the days in 2016, the first choice being alternated each year. Each party shall notify the other party of her or his choice by no later than November 15th.
The child shall have alternating March school breaks with each parent, with the respondent in even-numbered years, commencing March 2016, and with the applicant in odd-numbered years commencing March 2017.
a. Neither party shall remove the child from the province of Ontario without the written consent of the other parent or court order. The consent to travel shall not be unreasonably withheld for a vacation period not exceeding two weeks, which may take place after the child is ten years of age.
b. Provided that the party seeking to remove the child for a vacation shall give the other parent full details of the child’s itinerary, including flight carrier, flight numbers of the return flights, accommodation address and telephone number, as well as a cell number for the other parent to reach the child during such vacation period at least 30 days in advance.
c. Both parents shall cooperate with obtaining and renewing the child’s passport and providing the other all necessary documents for such travel in a timely manner.
- Both parents shall be entitled to receiving directly from relevant 3rd parties all school reports, medical information and details about the child’s sports or other organized activities or lessons that occur when the child is with the other parent. Both parents are entitled to be present at any school concerts, sports events or other extra-curricular activities to which parents are entitled.
[21] An order will issue in accordance with the above. There shall be no order for costs.
Seppi J.
Released: June 11, 2015
COURT FILE NO.: FS-10-70708-00
DATE: 20150611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
UPINDERJIT KAUR NARU
Applicant
– and –
GAGANBIR SINGH NARU
Respondent
REASONS FOR JUDGMENT
Seppi J.
Released: June 11, 2015