CITATION: Jagbir Dhaliwal v. Sukhjinder Dhaliwal, 2015 ONSC 6172
COURT FILE NO.: FS-14-81393-00
DATE: 2015 10 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jagbir Dhaliwal v. Sukhjinder Dhaliwal
BEFORE: LEMAY J
COUNSEL: R. Narang for the Applicant
A. Kania for the Respondent
HEARD: October 2, 2015
ENDORSEMENT
[1] The parties to this matter are Mr. Sukhjinder Dhaliwal (“Mr. Dhaliwal”) and Ms. Jagbir Dhaliwal (“Ms. Dhaliwal”). They have one son, who is six years old.
[2] The parties separated in the fall of 2012. At that time, there were various allegations about abuse made by Ms. Dhaliwal about Mr. Dhaliwal. There has been very little contact between Mr. Dhaliwal and Manreet in this time period. On Ms. Dhaliwal’s view of the facts, there was simply no contact by Mr. Dhaliwal during this time period. On Mr. Dhaliwal’s view of the facts, he had been told by Ms. Dhaliwal that she would call the police if he contacted her. Given that I only have Affidavit evidence on this issue, I cannot resolve it.
[3] In December of 2014, the parties agreed that supervised access would be granted to Mr. Dhaliwal, at a supervised access centre. The expectation, from Mr. Dhaliwal’s perspective, was that these visits would transition into unsupervised access relatively quickly.
[4] These visits have not transitioned into unsupervised access. Indeed, these visits have stopped, as Manreet is refusing to participate in them. As a result, Mr. Dhaliwal has brought a motion requesting unsupervised overnight access. Ms. Dhaliwal has brought a cross motion seeking various relief, including retroactive child support.
[5] I dismissed the retroactive support motion from the bench, and advised the parties I would provide reasons. I will do so below. I will also address the Mr. Dhaliwal’s motion for unsupervised access.
The Retroactive Support Motion
[6] In submissions, Ms. Narang advised that Ms. Dhaliwal was seeking the sum of $249.00 per month on account of support for the period from January 5th, 2013 to October 15th, 2014. The basis for this position was that, in the years in question, Mr. Dhaliwal had been working as a truck driver and may have received cash payments.
[7] Mr. Kania pointed to Mr. Dhaliwal’s Notices of Assessments for 2012 and 2013 as showing income of $13,590.00 and $3,172.00 respectively. He also pointed out that Mr. Dhaliwal had declared bankruptcy.
[8] In argument, when I asked Ms. Narang what evidence she had to support her motion, she noted that Ms. Dhaliwal has advised in her pleadings that Mr. Dhaliwal received cash payments. She also, most of the way through the argument, suggested that we could deal with this issue by way of disclosure, and that I could Order disclosure.
[9] I advised her that I would not Order disclosure at this stage, as it was almost the end of her argument (she was responding), and there had been no request for disclosure and no notice that disclosure would be sought on the motion.
[10] After further review of the file, I also note that the judge who conducted the Case Conference on June 25th, 2015, gave the parties 45 days to serve a request for information on each other. I was not directed to any request for information that Ms. Dhaliwal had made.
[11] More generally, there is no evidence from which I can determine that Ms. Dhaliwal was earning more income than was disclosed on his Notices of Assessment. Indeed, there is no evidence that would even allow me to impute any income to Mr. Dhaliwal. As a result, this portion of Ms. Dhaliwal’s motion is dismissed.
[12] I am not making an Order about whether this issue can be raised again by Ms. Dhaliwal before a trial, as I simply do not have enough evidence to determine whether that is appropriate. However, I will note that the amount of legal costs involved in bringing a further Order for retroactive support would likely dwarf the actual amount of support that would be awarded.
The Access Motion
[13] It is clear from the materials before me that Mr. Dhaliwal did not have any contact at all with Manreet from the time he left the matrimonial home in 2012 and March of this year. The reasons for this are less clear.
[14] It is common ground between the parties that, at some point, Mr. Dhaliwal had a significant substance abuse problem. This was a significant problem in his life at the time he left the matrimonial home. There is some dispute as to whether he continues to abuse substances, which is an issue that I am not in a position to decide on this motion.
[15] A divorce proceeding was started by Ms. Dhaliwal in August of 2014. As a result, in December of 2014, the parties agreed on supervised access. In a letter dated December 10th, 2014, Mr. Kania wrote to Ms. Narang outlining an agreement that the parties had that supervised access would take place and then, if the visits went well, it would change to unsupervised access.
[16] Mr. Kania walked me through correspondence that showed the following:
a. There seemed to be a shared understanding in December of last year that the parties would start with supervised access, and move to unsupervised access if the supervised access went well.
b. Mr. Dhaliwal’s counsel confirmed this in a letter that was sent to the Ms. Dhaliwal’s counsel in December of 2014.
c. A case conference was set in March of 2015. It did not take place as Mr. Dhaliwal asked for it to be adjourned as two supervised access visits had not taken place by that time.
d. Since that time, there were a series of very successful access visits, on March 15 and 29, April 12 and 26, May 24 and June 7, 2015.
e. Mr. Dhaliwal’s counsel requested unsupervised access by way of a letter dated April 21st, 2015.
f. Mr. Kania had a follow-up conversation with Ms. Narang’s clerk in May about this letter. At that time, Mr. Kania was advised that the letter had been forwarded to Mr. Dhaliwal for her consideration. However, in late May, Ms. Narang advised that she had not received this letter. A further copy was sent to her on May 21st, 2015.
g. A case conference was held on June 25th, 2015.
h. The next day, Ms. Narang requested hair sample and urine test results from Ms. Dhaliwal, and stated “We are positive that the issue of access could be resolved without having to go to court, upon receiving favorable test results.”
i. These results were provided to Ms. Narang on August 12th, 2015. While they showed a positive result for some substances, the materials before me support the view that the positive results are explained by the fact that Mr. Dhaliwal has been prescribed Tylenol 3 for back problems.
j. Ms. Narang responded to this letter on August 17th, 2015, stating that the access between Mr. Dhaliwal and Manreet had not been going well, and that he cannot be compelled to have unsupervised access with Mr. Dhaliwal. At this point, Ms. Dhaliwal sought to have Manreet attend counselling with Mr. Dhaliwal prior to resuming access visits.
k. As a result of the foregoing, this motion was brought. It was originally returnable on September 25th, 2015, and was adjourned at the request of Ms. Dhaliwal’s counsel.
l. Ms. Dhaliwal’s counsel requested a further adjournment before me on October 2nd, so that further information on drug testing results could be obtained. I dismissed this request without calling on Mr. Kania. To be clear, I dismissed this adjournment request because I viewed it as an attempt to delay the hearing of this motion.
[17] In reply to Mr. Kania’s summary of the proceedings, Ms. Narang stated that there was other correspondence from her office that would show a different version of the chain of events. In argument, I asked her where those documents were. She advised me that she had been at a different firm at the time that the letters were sent and did not get her complete file. As a result, she did not have these additional letters.
[18] I then asked her if she had copied her client on these letters that she had allegedly sent, and she advised me that she had done so, but that her client did not have them. Further, she acknowledged that there was nothing in her client’s Affidavit responding to Mr. Kania’s correspondence, or his version of events. I found that admission very surprising, as Ms. Dhaliwal and Ms. Narang had Mr. Dhaliwal’s Affidavit on September 21st, and had more than a week to provide reply materials.
[19] I do not accept Ms. Dhaliwal’s counsel’s explanation on this issue. Ms. Dhaliwal was well aware of the facts being raised by Mr. Dhaliwal. Ms. Dhaliwal was given an adjournment to address those facts, and did not address this portion of them in her Affidavit material. To then try and argue that the evidence provided by Mr. Dhaliwal is wrong without providing any factual foundation for that assertion is, in my view, highly irregular. For the purposes of this motion, therefore, I accept the sequence of events as set out in Mr. Dhaliwal’s Affidavit, including the fact that the April 21st, 2015 letter was received by Ms. Dhaliwal’s counsel in April.
[20] Based on the record before me, I am of the view that Ms. Dhaliwal has, throughout the course of the last nine months, been changing the terms under which she is willing to grant Ms. Dhaliwal unsupervised access to Manreet.
[21] My concerns about Ms. Dhaliwal’s approach to custody in this case were heightened by two submissions made by her counsel during argument. First, counsel submitted that the drug testing was insufficient because it did not test urine. Mr. Kania was able to direct both myself and Ms. Narang to materials that demonstrated that both hair follicle and urine testing had been done. Ms. Narang advised that she had an “expert” statement that supported her position. However, this document was not filed with the Court or served on Mr. Dhaliwal’s counsel, in spite of the fact that Ms. Narang had it in her possession for some days prior to the motion.
[22] Second, Ms. Narang argued that Mr. Dhaliwal’s mother was not an appropriate person for access because, as noted in the Application, she had given in to Mr. Dhaliwal’s drug habit when he was experiencing withdrawal symptoms.
[23] This second submission, in particular, leaves me with a concern that Ms. Dhaliwal is attempting to put up barriers to Mr. Dhaliwal’s access to Manreet, and that Court intervention to assist in fostering a relationship between Manreet and Mr. Dhaliwal is necessary.
[24] My concern is substantially heightened when I review the counselling notes from the access centre. Although access is a difficult issue to deal with on a motion, these notes are a very helpful source of information, as they are contemporaneous and prepared by third parties. They are very supportive of Mr. Dhaliwal’s position.
[25] In reviewing these access records, there are a number of points that are noteworthy:
a. At the first two visits, when Manreet would not have seen his father for a very long time, the visits went well.
b. On the third visit, on April 12th, 2015, Ms. Dhaliwal was late to the visit. When asked about this lateness, instead of apologizing for it, Ms. Dhaliwal stated that she is “a very busy business woman and she was doing him a favour by being here.”
c. The visits were successful up until a visit in mid-July. At that time, Manreet arrived at this visit and stated to Mr. Dhaliwal that “mom says early home today”, and that Ms. Dhaliwal had told Manreet she would take him to a park instead.
d. Since mid-July, Manreet has refused to attend the access visits.
e. In the visit notes from the August 30th, 2015 visit, the staff at the Visit Centre state that Ms. Dhaliwal “made no effort to encourage Manreet to attend the visit.”
[26] It is clear, in reading these visit notes, that there is a significant change in late June and early July. Manreet became much more resistant to access visits at that stage, and there is nothing in the reports from the access centre to suggest that Mr. Dhaliwal’s conduct during these visits caused, or contributed in any way, to this change.
[27] During argument, Mr. Kania observed that the only explanation he could see for the abrupt change between the visits was the conduct of Ms. Dhaliwal. In response to this argument, I asked Ms. Narang to explain to me how the abrupt change in Manreet’s approach to the visits could be explained by a reason other than Ms. Dhaliwal’s conduct.
[28] She raised two points. First, she stated that, when Manreet was three, his father had left the home after hitting both Manreet and Ms. Dhaliwal. As a result, Manreet would have some reticence (my word) around his father. I agree with Ms. Narang that this might explain any initial reluctance that Manreet had. It does not, however, explain the reluctance that arose abruptly after several successful visits.
[29] Second, Ms. Narang argued that the bonds between Mr. Dhaliwal and Manreet were weak. Again, I agree with Ms. Narang that this might explain any initial reluctance that Manreet had. It does not, however, explain the reluctance that arose abruptly after several successful visits.
[30] In short, there is no explanation for the abrupt change in Manreet’s behavior other than the conduct of Ms. Dhaliwal. On the record before me, it is clear that she is interfering in the development of a relationship between Manreet and Mr. Dhaliwal.
[31] Ms. Dhaliwal has suggested counselling for Mr. Dhaliwal and Manreet, instead of unsupervised access. I agree that counselling is a good idea for this family, and Mr. Kania also acknowledged this point in reply. I am going to Order counselling. However, I would be remiss if I did not also note that, on the information I have, I view Ms. Dhaliwal’s request for counselling, instead of unsupervised access, as being another attempt to move the goalposts for access in this case.
[32] In light of all of this, I am of the view that Court intervention to restore access to Mr. Dhaliwal is necessary. I am also of the view that the parties should re-attend before me to ensure that access is proceeding smoothly. The goal in this case is to return to some period of unsupervised access.
[33] I would also direct Ms. Dhaliwal to the provisions of the Divorce Act on custody and, in particular sections 16(9) and (10). These provisions, particularly subsection (10) deserve Ms. Dhaliwal’s careful consideration. As I indicated in argument, the Court has the power (particularly at trial) to make quite drastic Orders to protect the best interests of the child. See, for example, the decision of Mossip J. in Reeves v. Reeves ([2001] O.J. No. 308), and particularly her comments at paragraph 38.
[34] However, as I indicated in argument, I am not comfortable at this point with moving directly to either unsupervised access or to access supervised by the Mr. Dhaliwal’s mother. I was not directed to any evidence that would suggest that the Mr. Dhaliwal’s mother has a relationship with Manreet. As a result, some form of staged access is appropriate.
[35] In terms of whether the Mr. Dhaliwal’s mother is an appropriate supervisor for access, Mr. Kania argued that there was no reason why she would not be appropriate as she raised several children on her own. Ms. Narang argued that she would not be appropriate as, when the Mr. Dhaliwal had been abusing substances, his mother had succumbed to his withdrawal symptoms and let him have drugs.
[36] While I acknowledge this issue, I am not prepared to rely on it to rule out the Mr. Dhaliwal’s mother as a suitable supervisor for five reasons:
a. This is an allegation from 2011, and does not address what has happened in the four years since.
b. It is clear, even from the Ms. Dhaliwal’s materials, that the Mr. Dhaliwal’s mother was taking significant steps to try and get Mr. Dhaliwal to address his substance abuse problem back in 2011.
c. Mr. Dhaliwal himself has agreed to undergo regular drug testing to prove that he is not consuming illicit substances.
d. Ms. Dhaliwal did not make any suggestions as to alternate supervisors. This is of particular concern because of the fact that, as I have noted above, Ms. Dhaliwal seems to be moving the goal posts on access. Attacking any suggestion of an appropriate supervisor makes it harder for Mr. Dhaliwal to have access to Manreet.
e. Any concerns that may exist about Manreet’s comfort level with his paternal grandmother are partly of Ms. Dhaliwal’s making. Mr. Dhaliwal suggested having his mother come to an access visit back on June 7th, 2015, and Ms. Dhaliwal denied this request, stating that Manreet was “not ready”.
[37] In the circumstances, I reject the Ms. Dhaliwal’s concerns about the Mr. Dhaliwal’s mother. On the evidence before me, she is an appropriate supervisor.
[38] As I noted above, some form of staged access (including supervised access) is appropriate and, given my significant concerns with Ms. Dhaliwal’s approach to access, it requires Court intervention and supervision to achieve it.
Disposition
[39] For the foregoing reasons, I am making the following Orders:
a. The parties will, by October 8th, 2015, jointly ask the Headwaters Family Visit Centre (“the Centre”) to conduct three more supervised access visits from 1:00 pm to 4:00 pm on October 10th, 2015, October 17th, 2015 and October 24th, 2015. They are to make these requests in person or through counsel, and follow them up in writing, with copies of the requests provided to the other party’s counsel.
b. If the Centre is prepared to conduct these visits, then they are to take place with both Mr. Dhaliwal and his mother present. The purpose behind having Mr. Dhaliwal’s mother present is so that Manreet can become comfortable with his Grandmother.
c. If they occur, these supervised access visits are to be encouraged by Ms. Dhaliwal. She is expected to show up on time for all of these visits, and is expected to ensure that Manreet understands that he must attend at the visit for the entire time.
d. Once these supervised access visits are complete, there is to be five weeks of supervised access at Mr. Dhaliwal’s mother’s home. These visits are to be for four hours (from noon to 4:00 pm) on Sundays, starting on November 1st, 2015 and ending on November 29th, 2015. The Mr. Dhaliwal’s mother is to act as the supervisor for these visits, and is to keep a log of activities.
e. In the event that the supervised access center is not prepared to conduct visits for Manreet, then the parties can either agree on an alternate access centre or the supervised access visits will immediately begin Mr. Dhaliwal’s mother’s house. By immediately, I mean October 10th, 2015.
f. Ms. Dhaliwal is directed to deliver Manreet to the visits at Mr. Dhaliwal’s parents’ home on time, and is directed to ensure that Manreet understands that he must attend at the visit for the entire time.
g. Mr. Dhaliwal has agreed that he will undergo drug testing. I would normally not be prepared to Order drug testing in a custody case. However, since Mr. Dhaliwal has agreed to undergo testing, I am simply Ordering him to abide by his agreement by directing that he will attend at an independent drug testing facility on two occasions between October 5th, 2015 and November 10th, 2015. The first occasion will be in the week of October 5th, 2015. The laboratory is to be asked to provide the results directly to Mr. Kania.
h. Prior to the appearance before me in paragraph (i), the parties will endeavor to agree on a counsellor who can assist in providing family counselling, and counselling to Manreet. Family counseling means counselling for all three parties. The purpose of this counselling will be to assist in strengthening the bonds between Manreet and Mr. Dhaliwal, and to assist Ms. Dhaliwal in understanding the importance to Manreet of having both his parents involved in his life. In the event the parties cannot agree on a counsellor, that issue can be considered by me at the parties next appointment with me.
i. The parties will attend before me on either Thursday November 18th, 2015 or Friday, November 19th, 2015 at 9:00 am for further submissions on what should be done about access. Any materials that either side wishes me to consider at this appearance must be served and filed by no later than November 15th, 2015 at 5:00 pm. This will be a one hour appearance, and argument will be limited accordingly.
j. In paragraph f, I note that “the parties” will attend before me. I noted that the Ms. Dhaliwal was not in Court on Friday for this motion. She is required to attend in person at the return date in paragraph i, as is Mr. Dhaliwal. Both sides, of course, will be entitled to have counsel present as well.
k. If the dates set out in paragraph i are not convenient, then Counsel can advise my assistant (Sara Stafford- sara.stafford@ontario.ca) and the other Counsel, explaining why the dates are not convenient and I will consider any requests for alternate dates. If the parties cannot agree on a date, I will set one.
l. In the time between now and November 19th, 2015, I am seized of any custody and access issues, in the event that there are any difficulties in implementing my Orders. In the event that the parties need to have me address an issue, they can contact the Trial Coordinator. I am not seized of any other motions or issues in that time period, except as noted herein.
m. I will sign a further Order requesting the Office of the Children’s Lawyer to become involved in this case. A copy of these reasons will be attached to that request. The parties are to forthwith provide the necessary terms to the OCL.
n. By their next appearance before me, the parties are required to have booked a Settlement/Trial Management Conference date, sometime in March or April of next year.
[40] In terms of costs for this motion, success has been divided in the sense that Mr. Dhaliwal has not achieved everything that he has sought on this motion. He has, however, had some success in this matter, while Ms. Dhaliwal’s motion for retroactive support has been dismissed.
[41] As a result, if costs cannot be agreed, then Mr. Dhaliwal will provide his costs submissions in ten days from the release of these reasons, being October 15th, 2015. Ms. Dhaliwal will have ten further days to provide her costs submissions, being October 25th, 2015.
[42] These costs submissions are to be no more than three double spaced pages, exclusive of cases and bills of cost.
[43] There are to be no Reply submissions on costs without leave of the Court.
LEMAY J
DATE: October 5, 2015
CITATION: Jagbir Dhaliwal v. Sukhjinder Dhaliwal, 2015 ONSC 6172
COURT FILE NO.: FS-14-81393-00
DATE: 2015 10 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dhaliwal v. Dhaliwal
COUNSEL: R. Narang for the Applicant
A. Kania for the Respondent
ENDORSEMENT
LEMAY J
DATE: October 5, 2015