SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-15-82622-00
DATE: 2015 09 09
RE: HARPRIT SINGH BRAR v RAJVINDER KAUR BRAR
BEFORE: FAIRBURN J.
COUNSEL: Andrew Feldstein, for the Applicant
Shabana Khan, for the Respondent
HEARD: September 4, 2015
ENDORSEMENT
[1] The applicant seeks to vary a temporary and without prejudice custody and access order that has been in place since February 17, 2015.
[2] The parties were married on April 27, 2008. They had two children who are currently one and five years of age. The couple separated on December 1, 2014. Prior to their separation, the couple resided with the applicant’s mother, father, brother and sister-in-law. Since separation they appear to have been engaged in a highly corrosive relationship.
[3] In February 2015, the father brought a motion seeking temporary custody of the children. He asked that their primary residence be with him. The mother brought a counter-motion, requesting sole custody of the children and only supervised access to the father. The motions were heard by Tzimas J., who granted an order on February 17, 2015. I have reviewed this order. It is thoughtful, detailed and carefully crafted. While André J. made some minor variations to the access and custody components of Tzimas J.’s order, it remains largely the same.
[4] In her order, Tzimas J. noted the conflicting evidence placed before her by the parties. Each alleged mistreatment of the children by the other. Her order reflects that she placed “little to no weight” on the affidavits provided by the applicant’s relatives, as they made bald allegations consistent with the applicant’s position and narrative. While Tzimas J. observed that there were inconsistencies in the respondent’s evidence, she concluded that while the respondent was perhaps exaggerating, she was not necessarily fabricating.
[5] In the end, Tzimas J. concluded that, based on the materials before the court, and at such a preliminary stage, it was simply impossible to conclude with any confidence what was happening in respect to the contradictory allegations. As such, and bearing in mind the best interests of the two children, she determined that until the court received further clarity as to the situation, a temporary and without prejudice order was to issue for, among other things, custody and access. As above, this order was later amended by André J.
[6] For purposes of the relevant issues on this motion, the combined temporary orders are as follows. The mother has primary custody of the children. The father gets access on Mondays, Wednesdays and Thursdays from after school until 7:30 p.m. The father is also granted access every Saturday from 2:00 p.m. to 8:00 p.m. The Saturdays can be exchanged for Sundays on seven days’ notice to the respondent mother. The father’s parents are precluded from having access to the children except when supervised by the applicant’s brother and sister-in-law.
[7] The applicant now seeks to vary the prior of orders, asking that he and all of his family members have unsupervised access to the children on a more liberal basis. In general, he asks that the access schedule change so that he be permitted to have the children every other weekend. He also asks that he have access to the children on Wednesday from 3:00 p.m. until Friday. The alternative suggestion is an arrangement that would see the children with the father at specified times from Monday until Tuesday, Wednesday until Thursday and then Friday until Monday. In alternating weeks, he would only have them Tuesday to Wednesday and Thursday to Friday.
[8] The applicant also asks that the clause precluding the grandparents from having unsupervised access to the children be deleted. He says that, at a minimum, if the supervised access component of the order must remain, he should be considered an appropriate supervisor. As I understand it, having reviewed the materials before Tzimas J., and having regard to her February 17th order, this clause was put in place because of allegations of abusive conduct by the grandparents.
[9] The applicant says that notwithstanding the detailed order of Tzimas J., there have been some important developments in this matter and I should consider varying the order. These developments, he says, should assuage the court’s prior concerns about the safety and well-being of the children when in the father’s care.
[10] In particular, he points to two CAS letters that have been provided since the Tzimas J. order was made. An April 29, 2015 letter sets out various contacts between the CAS and family. While the letter references concerns about the corrosive relationship between the parents, and the impact this is having and will undoubtedly continue to have on the children, it concludes that the CAS has been unable to verify any allegations of abuse made by either parent.
[11] As for the most recent letter, dated August 31, 2015, the authors note the several allegations between the parents with regard to the care and treatment of the children. The letter makes reference to a thorough investigation having been done by the CAS into the allegations of abuse. Again, the letter notes that none of the allegations have been “verified”. While the older child has made “allegations about past physical abuse towards him”, these are considered “historical reports” and, according to the CAS, do not require further investigation. It is not entirely clear to me what the CAS means by this latter comment.
[12] While the CAS expressed serious concerns about the negative influence that the parents are having on the older child in particular, there is no finding of any physical abuse. The CAS strongly recommends that the parents speak “positively about the other parent in the presence of the children” and that they seek counselling.
[13] The applicant says that while he does not have to demonstrate a material change in circumstance to have the prior temporary order altered, he says that there is in fact such a change here. When Tzimas J. made her February 17th order, she did not have the benefit of the comments of the CAS, which comments followed upon a self-described thorough investigation. The applicant says that these comments should ease any concern with respect to the well-being of the children when in the father’s care and he should be granted more access.
[14] The respondent takes the position that this application should be adjourned pending the outcome of the investigation currently being done by the Office of the Children’s Lawyer [“OCL”]. The respondent says that it is anticipated that this investigation will be completed by the end of September 2015. She filed an August 19, 2015 letter from the clinical investigator, Ms. Fay Lim-Lambie, which contains reference to her belief that her investigation will be completed by that date. Ultimately, the respondent argues that the s. 112 investigation should be permitted to take its course. To change custody and access now, on the eve of hearing from the professionals tasked with assessing the situation, would be to eclipse the very purpose of the s. 112 investigation.
[15] Despite the CAS letters, I am not prepared to alter the current custody and access arrangements at this time. The s. 112 investigation is not only underway, but Ms. Lim-Lambie is anticipating completion of her investigation by the end of this month. This investigation was commenced for a reason. It should be permitted to proceed so that this court has the benefit of the insights arising from any conclusion that the investigator reaches. While I accept the applicant’s position that a month or two in the lives of young children can seem like an eternity, children also require some consistency. While not dispositive of the outcome of access and custody issues, the investigator’s report will be informative of the best interests of the children in respect to these issues. Depending on what the investigator concludes, any change to access now could be susceptible to another change in short order. This would create a lack of predictability for the children which would not be in their interests.
[16] Given that the investigator’s report is almost complete, it is better to await the result before any changes to access are considered. This way the children can remain in the predictable situation they have become accustomed to since February. When the parties and court have the benefit of the investigator’s conclusions, then determinations can be made as to whether more liberal access should be granted to the father.
[17] The father (and children) should not have to wait forever to pursue this application. I only adjourn this matter because of the information provided that the investigation is anticipated to reach its conclusion at the end of this month. As such, I order that Ms. Lim-Lambie be served with this endorsement so that she understands the premium on having the investigation completed and any reports back done as soon as possible. I am sure the investigator understands the premium on completing her work in this matter, but ask the endorsement be provided so she has further context for her work.
[18] If there is any undue delay in the completion of the investigation, the applicant is free to bring the application back on.
[19] In the interim, given that the father may have unsupervised access to the children, it only makes sense that he is an appropriate supervisor for his parents’ access to the children. The children may visit with their grandparents in the presence of the applicant alone. His brother and/or sister-in-law need not be present for the children to see their grandparents, provided the applicant is present.
[20] There is only one thing that is currently very clear in this case and it is that the parents seem to have a most unfortunate relationship that will only serve to damage their impressionable and highly vulnerable children. As I said at the end of the motion, and before taking this matter under reserve, it is critical that they start focusing on the best interests of their children. The CAS suggestion of counseling seems obvious. The parties are strongly encouraged to seek out professional assistance so that they may understand the tragic and lifelong consequences that may flow to children who are caught in the middle of these adult disputes.
[21] The application is adjourned sine die.
FAIRBURN J.
DATE: September 9, 2015
COURT FILE NO.: FS-15-82622-00
DATE: 2015 09 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HARPRIT SINGH BRAR v RAJVINDER KAUR BRAR
COUNSEL: Andrew Feldstein, for the Applicant
Shabana Khan, for the Respondent
HEARD: September 8, 2015
ENDORSEMENT
FAIRBURN J.
DATE: September 9, 2015