COURT FILE AND PARTIES
COURT FILE NO.: FS-13-389728
DATE: 20151210
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Anik Nagpal, Applicant
AND:
Priya Bagga Nagpal, Respondent
BEFORE: C. Horkins J.
COUNSEL: Harold Niman, for the Applicant
Jaret Moldaver, for the Respondent
HEARD at Toronto: December 3, 2015
ENDORSEMENT
overview
[1] This Application was commenced in September 2013. The parties have one child, Ronak Nagpal, born October 30, 2009. It is a high conflict dispute.
[2] There are two motions before the court. The applicant (“father”) brings a motion for an order that the respondent (“mother”) is in contempt of the order of Justice Mesbur dated February 10, 2014 and my order dated October 1, 2015 (“the October order”). He says that the mother is refusing to allow all of the court ordered access.
[3] The mother brings a motion to vary the October order to require that the father’s access be “restricted and/or supervised in her home”.
[4] The parties agreed to adjourn these motions to a long motion date on February 8, 2016. They also agreed that each would be questioned prior to the long motion.
[5] In the interim it is agreed that the October order governs subject to what I decide on the issue of increased Christmas access. For the sake of clarity, I confirm that during court the father notified the mother that he will not be able to exercise his access on December 8, 10, 15 or 17, 2015. No reason was given.
[6] The father seeks additional access during Christmas. There is no court order addressing holiday access. The father did not bring a motion for holiday access. He asked the court to decide the issue on the available record. With the consent of the mother and because the record before me is extensive, I agreed to do so. Both parents wish to have an order addressing Christmas access without having to bring another motion.
[7] The father requests that the Christmas holiday time be divided to give each parent a week with the child. He proposes that the child will be with him from December18, 2015 to Friday December 24, 2015 at 1 p.m. He plans to take the child to Vancouver where he will spend Christmas with family. The child will be returned to his mother on Friday, December 25 at 1 p.m. and will stay with her until January 3, 2016 at 5:30 pm. She wishes to travel to the United States with the child. After the Christmas holiday weeks the parties will resume the access schedule in the October order.
[8] The father states that his request for holiday access follows the recommendation of Dr. Butkowsky dated June 12, 2105. This is correct. Dr. Butkowsky has not delivered his report that will explain the recommendations. It is expected that the report will be released on December 18, 2015. This recommendation was made before the child suffered a concussion on July 5. 2015. Details concerning the concussion and the child’s treatment and recovery are set out below.
[9] While the mother does not agree with the father’s proposal to share Christmas, she offers to give the father extra time with the child. In summary, she proposes that the father’s existing access time be extended during his access days. This is possible because the child will not be in school over the holidays. The proposal gives the father four overnight visits and four additional evenings over a two week period plus the regular daytime access. The applicant father rejects this proposal because he wants to share the holiday time equally.
[10] The mother’s refusal to give each parent a full week arises primarily from her position that the father allows the child to engage in physical activity contrary to the “Return to School Guidelines”. These are medically recommended guidelines that are to be followed after a child suffers a concussion. I will refer to them as the Concussion Guidelines.
[11] The Concussion Guidelines have five stages with activity increasing from 1 to 5. Stage 5 is called “Fully Back to School”. The medical evidence shows that as of this fall, Ronak was progressing from stage 3 to 4. In stage 3, gym class is to be avoided. Stage 4 is called “Nearly Normal Routines” There is no reference to whether physical activity is allowed during stage 4. It simply refers to returning to full days at school and doing homework. The child moves to stage 5 when “symptom free”.
[12] The Concussion Guidelines are attached to and form part of the October order. As a result, the mother states that the father is not complying with the October order. The October order was made on consent. Paragraph 2 of the October order deals with the Concussion Guidelines and states as follows:
Both parties will comply with the advice of both doctors in that Ronak shall not be permitted to engage in physical activity until he passes the final Stage 5 of the attached Guidelines. Anik will comply with the attached Guidelines while Ronak is under his care, until Ronak is symptom free and has passed Stage 5.
analysis
[13] It is clear that on July 5, 2015, the child suffered a head injury when he fell at a water park. This happened on one of father’s access days with the child. The conflict between these parents did not start at this point. It was already well entrenched.
[14] The parents do not agree on the nature and extent of the child’s post-concussion symptoms and his recovery. The father doubts the veracity of his son’s symptoms as reported by the mother. He claims that her continual reporting of alleged symptoms is all part of her aim to restrict his access and obtain an order that access be supervised.
[15] The mother states that the father has “become ungovernable in continually ‘thumbing his nose’ at the [Concussion] Guidelines”. She alleges that father is not “child focused” in working to achieve the best care for the child.
[16] The child is followed by two doctors: Dr. Flanders, the pediatrician and Dr. Evan Lewis a neurologist. Dr. Flanders referred the child to Dr. Evans who wrote a report dated August 19, 2015. In that report he states that the child suffered a “mild TBI (i.e. concussion) on July 5th secondary to a fall onto his head.” This met the criteria for “Acute Post – Traumatic Headache attributed to Mild Head Injury”. He notes that this can “convert to the chronic form if the headache persists for 3 months”. Dr. Evans directed that the parents follow the Concussion Guidelines.
[17] The mother’s evidence describes how the child’s post-concussion symptoms have continued. He continues to receive medical treatment and miss time from school. The mother alleges that father encourages the child to participate in physical activity contrary to the Concussion Guidelines. The mother also complains that the father does not attend the child’s medical appointments even though she tells him about the appointments and encourages him to join her.
[18] She complains that father does not exercise regular access and often gives no advance notice or last minute notice if he is unable to attend. Apparently, the father travels for work and may not always be available. These parents need to discuss access and the father’s work schedule if this is interfering with his ability to exercise all access. Communication on this issue is in the best interests of their son. They should consider using the communication tool offered by https://www.ourfamilywizard.com/.
[19] On September 15, 2015, the mother states that the child suffered a second concussion when he hit his head at school. The parents were in court when the school called and the mother left to take her child to the hospital. The father did not go with her and was criticized by mother for staying behind. The Discharge Information Sheet from Sick Kids shows a diagnosis of “concussion”.
[20] The mother reported a worsening of symptoms and on September 21 she contacted Dr. Lewis. In an email to the mother he stated that since he was not present to assess the child it was difficult for him to make a “proper assessment”. He recommended a CT Scan. This test was done and the result was negative.
[21] A discussion between Drs. Flanders and Lewis followed and on September 25, 2015, Dr. Flanders sent this email to the mother:
After a discussion with Dr. Lewis, he and I agree that all parties should work (collaboratively and always keeping Ronak’s best interest in mind) towards getting Ronak back to enjoying routine visits with his father. This should happen as quickly as possible and should be guided by the concussion guidelines already shared with Mom and Dad. It goes without saying that it is important for father to follow these concussion guidelines when Ronak is in his care.
[22] The mother sent Dr. Flanders email to the father. She continued to report that the child was suffering from post-concussion symptoms.
[23] Mother claims that father did not follow the Concussion Guidelines during his access time and the father disputes her claims. On September 29, 2015, she states that the father wrestled and played soccer with the child. According to the mother, this is what the child told her. The father denies that they wrestled. For 10 minutes, he says that they played soccer in the house by kicking a pillow to each other. The mother makes other allegations that father allowed the child to engage in physical activity and much of this evidence is disputed.
[24] The record is filled with conflicting evidence that has not been tested through cross-examination. In these circumstances, it would be unfair to assess the credibility of the parties and decide who is telling the truth. It is not possible on a paper record to decide whether it is the mother or father who is accurately reporting these events. There is one relevant event that occurred at the YMCA on October 22, 2015. I will consider this event because the parents agree it happened and it is recorded by the YMCA. It is referred to below.
[25] Similarly, the veracity of the mother’s report of the child’s symptoms cannot be decided on this motion. Whether or not the mother’s continual reporting of alleged symptoms is all part of her aim to restrict father’s access and obtain an order that access be supervised must be tested through cross-examination at trial.
[26] On October 13, 2015, Ronak returned to school. After school, father took Ronak to an outdoor playground. The mother reports that the child fell and hit his head in the playground. She states that the child was in pain that night and had headaches, nausea and loss of balance. The next day she took him to Sick Kids. The discharge note from the hospital records a minor head injury with a history of concussions.
[27] Dr. Lewis saw the child on October 16. In his clinical notes, Dr. Lewis states that “overall [the child] continues to improve”. Dr. Lewis records his “concern” that the symptoms reported on October 16, 2015 are disproportionate to the child’s physical appearance and examination findings. During the examination, the child appeared “happy, in a positive mood, was actively playing on his mom’s phone and had no issues jumping, hopping and completing the physical examination”. There were no objective findings of the blurred vision that the mother reported.
[28] Dr. Lewis stressed the need for a child psychologist to help Ronak, but this had not yet happened. This doctor is concerned that the child may have acquired some secondary gain behaviour and may be exaggerating some symptoms which have clouded his clinical picture. Dr. Lewis confirms that the child’s symptoms must be managed following the Concussion Guidelines and goes on to state that the child “must push forward into stage 4 and 5 [of the Concussion Guidelines] with encouragement from the parents. Further the child’s routine needs to be “normalized and he needs to understand that he should be in school full time”.
[29] The father looks at this direction from Dr. Lewis to push the child forward and observes that the child was allowed to jump and hop during Dr. Lewis’ examination. He sees this as support for the limited activity that he has involved the child in.
[30] On October 20, 2015, the school called the mother and asked her to pick up the child because he had vomited, had a bad headache and nausea. After a visit to Dr. Flanders, the doctor wrote two notes concerning the child’s care. The parents received a copy of these notes. In the first note, Dr. Flanders stated that for the next three days Ronak should not “participate in any rough or highly active play. This requires adequate supervision during recess. If such supervision is not possible then Ronak should not take part in recess.” In the second note, Dr. Flanders stated that according to Dr. Lewis, Ronak has been progressing from stage 3 to stage 4 of the Concussion Guidelines. Regarding the disagreement between the parents about the degree of the child’s recovery, the doctor stated as follows:
Mother has expressed concerns to me today that father has a different interpretation of what stages Ronak has been progressing through. Though I am not in a position to corroborate this, I feel it is very necessary to emphasize the importance that both of Ronak’s parents communicate effectively and in good faith when it comes to supporting Ronak through his recovery. If parents cannot reasonably accomplish this task, then I am gravely concerned for the future of this child vis-a vis his experience growing up under the care of his conflicting parents.
[31] On October 22, 2105, the father took the child to Chapters where they practiced reading. They then went to the YMCA and the father purchased the child a youth membership for future visits. During a tour of the YMCA, they saw a group of children participating in a T-ball exercise and Ronak wanted to join them. A letter from the YMCA states that the child participated in a multi-sport program for 45 minutes. The sport was described as “baseball”. The letter states that Ronak was accidentally hit on the back of his head with a baseball glove. The father explains that the game was played with foam bats and balls and foam tees to bat the ball. The father agrees that he allowed Ronak to participate in the game in his presence for 30 minutes. Part of this time involved the children sitting around a circle while the game was explained. During cleanup, he states that a baseball glove grazed the back of Ronak’s head as a child was passing it to the instructor. He insists that Ronak did not sustain an injury.
[32] Dr. Flanders contacted the CAS after he learned about the YMCA incident and received the YMCA letter. The CAS already had an open file. The YMCA letter referred to the child playing “baseball”. The doctor had directed that Ronak not participate in any rough or highly active play. It is unclear if the doctor had the father’s evidence about this activity and whether if known he would characterize the activity as rough or highly active play. I add that the CAS has not taken any child protection proceedings. All that has been produced is the CAS log that records the conversations between the CAS and the parents, (primarily the mother), Ronak and various people involved in Ronak’s care.
[33] The mother states that father breached the October order when he allowed Ronak to play this game at the YMCA. Paragraph 2 of the consent October order states that Ronak “shall not not be permitted to engage in physical activity until he passes the final stage 5”. I agree that the game played with foam bats and balls is a “physical activity” and it is clear Ronak has yet to reach stage five.
[34] On this occasion at the YMCA, the father did not follow the October order as required. That said, it is not clear if the game at the YMCA would be characterized as rough or highly active play if all the facts were known to Dr. Flanders. However, it is the order that governs and it says no “physical activity” until the child passes stage 5. Whether the Concussion Guidelines prohibit all physical activity until the child passes stage five is an important question that the parents must discuss with Ronak’s doctors.
[35] On November 10, 2015, Dr. Flanders wrote a letter regarding Ronak that states as follows:
Ronak has been struggling from recovery from a head-injury.
Dr. Lewis (neurologist) and I have strongly recommended that the parents engage with a mental health specialist to help support Ronak’s recovery. I am disappointed to see that this mental health professional has not yet been retained. There is not anything that I can recommend more strongly at this stage than Ronak and his parents receiving the professional support needed to bring Ronak back to his premorbid neurological and psychological baseline.
I would also like to reiterate that mom and dad should continue following the [Concussion Guidelines] as has been recommended many times in the past.
[36] In summary, the above is the context in which the court is asked to decide Christmas access.
[37] In my view, it is important that the child spend a week with each parent during the Christmas holidays. This is a typical sharing arrangement that is followed and I see no reason why it should not be implemented in this case.
[38] I recognize that the father did not follow para. 2 of the October order at the YMCA. I also accept that he cancels access visits and does not always give mother reasonable notice. Why he does so I cannot determine on the record before me. I am not prepared to “punish” the father by limiting Christmas access because of his conduct. It would not be in the child’s best interests to do so.
[39] The mother may well be overreacting to her son’s injury. This is a possibility given Dr. Lewis’ concern that he child may be exaggerating some symptoms. While the mother has various concerns about the father’s care of Ronak, she wants the father to have more time with Ronak during the holidays (but not a full week).
[40] Dr. Flanders has encouraged “getting Ronak back to enjoying routine visits with his father.” Dr. Lewis urges the parents to “normalize” the child’s routine. Implementing a typical shared holiday access plan is part of this normalization.
[41] Clearly, the parents in this case have had difficulty communicating. They differ on the degree of the child’s recovery and this has added to the conflict. The parents are at a critical point in managing the best interests of their child. Drs. Flanders and Lewis have told them that they are “gravely concerned for the future of this child vis-a vis his experience growing up under the care of his conflicting parents”. The doctors have warned that they must communicate effectively and in good faith when it comes to supporting Ronak through his recovery”. Dr. Lewis has recommended that they engage a “mental health specialist to help support Ronak’s recovery”. Dr. Flanders is disappointed that this has not been done.
[42] The conflict that the child is being exposed to is obviously not in his best interests. The parents have an opportunity to accept the concerns and advice of Drs. Flanders and Lewis and act together to eliminate the conflict. If they continue on the path that they are now on, one thing is certain, their child will suffer.
[43] In the circumstances of this case, the Christmas access schedule is an opportunity for the parents to end the conflict and start normalizing the child’s routine.
[44] While I am prepared to order that each parent shall have a week with the child during Christmas, this order imposes conditions on the parents (set out below). These conditions are aimed at eliminating the conflict that they expose their son to and will assist them in acting in the child’s best interests.
[45] In particular, the parents will not be permitted to travel with their son over the holidays. The father wishes to fly to Vancouver for his week and the mother wants to drive with the child to see relatives in the Unites States. I have no evidence as to whether travel is medically advised given the child’s head injury. The child’s doctors are in Toronto and he has required treatment off and on this fall. Should the child require medical care for his head injury during Christmas, it is in his best interests that this care be provided in Toronto, where his doctors and medical files are located.
[46] The October order continues to apply and shall be followed. While father seems to believe that some form of mild activity is allowed, this is not what the October order states. I appreciate that Dr. Lewis’ direction that the child “push forward” into stages 4 and 5 seems at odds with the October order that directs no physical activity until stage 5. I note that the Concussion Guidelines are silent about the type of physical activity, if any, that is permitted at stage four. For this reason I am ordering the parents to jointly meet with Dr. Lewis and/or Dr. Flanders to seek clarification on the type of activity, if any, that is permitted before stage 5. If clarification is provided and if the doctors permit some type of physical activity before stage 5, then it would be appropriate to amend para. 2 of the October order. Until such amendment is made, the October order stands and shall be followed.
[47] Lastly, it is very disappointing and concerning to see that the parents have yet to follow Dr. Lewis’ direction. He told them to seek help for their son from a trained psychologist who knows how to “manage chronic pain issues in children (i.e. Ronak’s ongoing symptoms) and family conflict.” Dr. Lewis recommended Linda Popielarczyk and has spoken to her about Ronak. The parents must seek help from Linda Popielarczyk without delay.
[48] As noted at the beginning of this endorsement, the parties adjourned their long motions and agreed to question each other. Perhaps this endorsement will give the parents reason to pause and reflect on the whether this is necessary. If they both do as directed in this endorsement then surely their long motions will not be required.
conclusion
[49] I make the following orders:
(1) The Christmas school vacation shall be shared and the child, Ronak Nagpal born October 30, 2009 shall reside with the parents as follows:
(a) The child shall reside with his father from December 18, 2015 at 5 p.m. until Friday, December 25 at 1 p.m.
(b) The child shall reside with his mother from December 25 at 1 p.m. until January 3, 2015 at 5:30 p.m. after which the access schedule in the October order shall apply.
(2) Neither party shall travel outside the Greater Toronto Area with the child during the Christmas school vacation time.
(3) The parents shall jointly meet with Drs. Flanders and/or Lewis to seek clarification and direction as to what physical activity, if any, their child may participate in at the relevant levels in the Concussion Guidelines. This meeting shall take place as soon as possible after the Christmas school vacation. If some type of physical activity is permitted by one or both of the doctors, the October order governs unless it is changed to reflect the advice of the doctors.
(4) The parents shall without further delay follow the advice of Dr. Lewis and jointly seek support from a psychologist, specifically Linda Popielarczyk. If she is not available, they will obtain a referral from Dr. Lewis to another psychologist.
(5) The parties are strongly encouraged to agree on costs. If the parties cannot agree on the costs of this motion, they shall exchange brief written costs submissions and file them with the court by January 29, 2016.
C. Horkins J.
Date: December 10, 2015