Atodaria v. Gandhi

CITATION: Atodaria v. Gandhi, 2017 ONSC 6010 NEWMARKET COURT FILE NO.: FC-16-50763-00 DATE: 2017-10-16

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Mayur Atodaria, Applicant and Chaitali Gandhi, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Susan Duggan, Counsel for the Applicant Christine Marchetti, Counsel for the Respondent

HEARD: September 27, 2017

Ruling on Motions

JARVIS J.

[1] The respondent mother (“the mother”) brings a motion for an Order dealing with access involving a four-year-old child by the applicant father (“the father”), disclosure and for costs of an earlier motion which the parties were able to mostly settle, and which was then adjourned.

[2] The father has brought an unconfirmed (with the court offices) cross-motion for similar relief, excepting disclosure. Notwithstanding this procedural irregularity, and due to the similarity of the issues involved, this court heard both parties’ motions.

Facts

[3] The parties are husband and wife. They married on December 10, 2010 and separated on October 13, 2015. There is one child of the marriage namely P.A. born March 27, 2013.

[4] The parties separated on or about October 13, 2015 after the applicant was charged with domestic assault and later with uttering threats. After the father was charged he was prohibited from communicating with the mother and coming within 1000 metres of where she and the child had gone to live afterwards. All charges were subsequently dismissed.

[5] The child has been primarily resident with the mother since the parties separated. There is no disagreement that after the parties separated the child did not see his father until shortly after the father commenced these proceedings in late April 2016. The first access took place on May 24, 2016. Difficulties associated with the parties agreeing upon an appropriate access arrangement led to the following steps in these proceedings:

(a) as a result of a Case Conference held on September 12, 2016 the father was ordered to pay child support of $219 a month without prejudice to the issue of any claim by the mother for retroactive support. The father was working at a call centre in customer service;

(b) on October 26, 2016 Douglas J. made an Order that the child have his primary residence with his mother subject to weekly overnight access by the father from Tuesday (6:00 p.m.) to the following Thursday (8:00 p.m.) with appropriate directions as to pick-up and drop-off of the child. A further Order was made with respect to the payment of the child's section 7 special or extraordinary expenses;

(c) the parties scheduled and prepared for motions returnable on July 5, 2017. The father was seeking a reduction in child support and the mother wanted disclosure and an Order appointing the Office of the Children’s Lawyer (“OCL”). After the exchange of their motion materials, the parties negotiated a reduction in the amount of child support. They agreed to discuss the mother’s motion requests for medical disclosure from the father and appointment of the OCL at a Settlement Conference scheduled for July 20, 2017. They could not agree on costs relating to the father’s motion but did agree to reschedule the mother’s motion to September 27, 2017;

(d) a Settlement Conference was held by McGee J. on July 20, 2017. An Order was made requesting the assistance of the Office of the Children's Lawyer;

(e) the parties signed Minutes of Settlement on August 16, 2017 dealing with the father’s July 5th motion;

(f) an unopposed Order was made by McGee J. on September 11, 2017 varying to $153 a month effective July 1, 2017 the amount of child support being paid by the father. This reduction was based on the father's receipt of a disability income lower than the income he had earlier earned when Douglas J. made the original support Order. The new Order also reserved to the parties their right to argue the costs of the motion originally scheduled to have been heard on July 5, 2017;

(g) the mother amended her motion to seek a variation of the access ordered by Douglas J. and for disclosure in addition to the father’s medical records; and

(h) the father brought a cross-motion to deal with access and the costs of the July motion.

Issues Before the Court

[6] There are three issues requiring adjudication as follows:

(a) varying the access Order made by Douglas J. to permit the child to attend weekly junior kindergarten (“JK”);

(b) disclosure, including disclosure of the father’s medical records; and

(c) costs of the father’s motion which did not proceed on July 5, 2017.

[7] Each of the issues will be separately addressed.

Access

[8] The Order made by Douglas J. structured the access to coincide with the father’s times when he was not working. Since then there have been the following changes:

(a) due to what he alleged were the actions of the mother and her family, the father became ill and was no longer able to work. He qualified for, and now receives, short term disability income through his work; and,

(b) the child was enrolled by his parents in JK starting September 2017.

[9] Both parents attended and participated in the school registration process and attended parent registration night.

[10] On September 1, 2017 the father told the mother that for those weekdays when the child would be in his care (i.e. Wednesdays and Thursdays) he would not take the child to JK because that would restrict his time with the child. The mother says that at no time in the months before September 1st did the father ever say that he did not want the child to attend JK on a full-time basis. She was prepared to change the schedule to ensure that the amount of the child’s time with his father would not be lessened.

[11] Accompanying the affidavits from each party (the father did not file an affidavit; rather, someone from the offices of his counsel swore an affidavit based on information and belief) were email exchanges between the parties and their counsel dealing, in part, with the child’s JK attendance. The father objected to his having to assume the child’s transportation needs when in his care and the impact that had on the child’s time with him. He insisted that the child remain in his care instead of attending JK whereas the mother focused on the child’s socialization, integration and learning skills which full-time JK would enhance. The mother relied on a study found on the Ontario Ministry of Education website (“the McMaster study”) measuring the impact of full day kindergarten (“FDK”). Key findings of that study indicated that:

(a) FDK students were better prepared to enter Grade 1 and to be more successful at school;

(b) in every area, FDK students improved their readiness for Grade 1 and accelerated their development; and,

(c) there were reduced risks in social competence development/language and cognitive development, and communications skills and general knowledge development for FDK students having two years of instruction compared to those children who had none.

[12] In Dion v. Glasgow[^1] MacKinnon J. declined to rely upon the McMaster study in ordering that neither parent register their child in JK where there was no temporary Order or agreement in place dealing with legal custody or decision-making. There was no evidence specifically addressing the needs of the child.

[13] In Beyer v. Palacios[^2], Kiteley J. declined to admit the McMaster study in dismissing a mother’s motion to enroll a child in full-time JK. The study was ruled inadmissible because while it spoke to the benefits of FDK, it did not address the unique situation of the child in that case.

[14] In Lambert v. Limoges[^3], a mother withdrew her earlier consent to a child attending JK. Kane J. observed that “…[e]arly education is beneficial to the child…”. No reference was made to the McMaster study, the Dion or Beyer cases or any other authority for that proposition.

[15] All three of these cases were decided within four months of each other. In none was there a temporary Order or agreement in place when the motions were argued. In each case the court focused on the risks to the child inherent in endorsing an arrangement in circumstances where one parent’s effort to “control” the child could operate to undermine the child’s relationship with the other parent, or was not demonstrably in the child’s best interests. In Dion a report made by the OCL recommended that the mother have custody and decision-making authority. She opposed the father’s JK request. In Beyer there was compelling evidence about the mother’s propensity to estrange the child from his father which enrollment in JK would only accentuate. In Lambert the mother reversed her position about JK-she “blocked [it] for her own purpose.”[^4]

[16] It is not necessary to reconsider the admissibility of the McMaster study in this case although its’ findings seem almost axiomatic and warrant some degree of recognition, especially in light of the positive outcomes generated by FDK, of which JK is an important part. In the case before this court, the parties agreed that JK was in P.A.’s best interests: it is not disputed by the father that for over two months after that decision was made, and on the eve of the child starting JK, the father made his position about full-time attendance known, and then as part of a complaint about his transportation obligations.

[17] The mother does not propose to limit the child’s time with the father. What she proposes is that the time which the child spends with his father be changed to alternating weekends and expanded so that the child will have the opportunities which JK (and by extension, FDK) offers without negatively impacting the parent-child relationship. The father is not working at this time and attends therapy on Tuesday, Wednesday and Friday mornings. An outcome which alternates weekends and permits regular weekly contact promotes the child’s best interests.

[18] Accordingly, the Order of Douglas J. is varied as follows;

1. The child shall attend weekly JK on a full-time basis.

2. Starting Friday October 20, 2017, and alternating weekends thereafter, the child shall reside with his father from Friday after JK until the child’s return to JK by the father on the following Monday.

3. On those weeks after the child’s weekend with his father, the child shall reside overnight with his father from Wednesday (or Thursday at the father’s option) after JK until the child’s return to JK by the father on Thursday (or Friday if the Thursday option is chosen). The father shall make his choice of weekday date known to the mother by October 19th and that overnight date shall remain in place until further Order of the court.

4. For the week immediately after the child’s weekend with his mother, the child shall reside overnight with his father from Tuesday after JK until the child’s return to JK by the father on Wednesday.

5. In the event of a PD day or other event when the child is not in regular attendance at JK (such as JK being closed or seasonal holidays) the child shall be returned by the father to the mother’s residence.

[19] The foregoing arrangements should apply irrespective of the father being found able to return to his employment. The parties should also consider negotiating at this time the child’s schedule with each parent and their extended families for the forthcoming holiday season. The parties should focus on the child and enhancing his time with each parent.

Disclosure

[20] On or shortly after May 24, 2017 the mother served a Request for Information (“RFI”) on the father. He provided some of the disclosure requested shortly before the July 20, 2017 Settlement Conference. Exhibit “M” to the mother’s affidavit sworn September 18, 2017 lists the requested information which was still outstanding as of August 14, 2017 and it summarized where the father's disclosure was inadequate or simply nonresponsive.

[21] In response to the RFI the father stated that the information had either been discussed at the Conference, had been provided, or was irrelevant. The father also maintained that what the mother was asking was broader than the relief which had been sought in the July 5, 2017 adjourned motion. This court reviewed the Continuing Record and the mother’s August 14, 2017 solicitor’s letter. Mostly all of the disclosure requested, and which was alleged to still be outstanding, appeared relevant and proportional to the issues in these proceedings.

[22] This court was invited to parse the parties’ conflicting evidence as tendered in the form of emails and competing summaries to determine which party’s evidence to accept. When the court asked the father's counsel to produce for the court’s inspection the disclosure which the father maintained that he had already provided, his counsel advised that this information had not been brought to court.

[23] Rule 17 (14.2) 2 of the Family Law Rules dealing with Settlement Conferences requires that parties bring to a Settlement Conference all documents purporting to support a party's position where the value of an asset or the amount of the debt is disputed, or where there is a dispute whether a document required to be served has, in fact, been served. Such a dispute exists in this case, although in the context of a disclosure motion. There is no reason though why a similar practice should not be followed for motions where there is a dispute whether requested, and especially ordered, information has been provided. It is incumbent on the party who is bound by a disclosure Order or to whom the request has been made, to bring the disputed disclosure to court. If necessary, the court will give requesting counsel an opportunity to inspect the disclosure and can order costs when appropriate.

[24] Accordingly, with the exception of the issue involving the father’s medical records, which shall be separately considered below, the father shall provide to the mother the information contained in items numbered 1-5, 8-11 and 14 from Exhibit “M” to the mother's above-referenced affidavit and, in addition, the following disclosure (the numbers reference correspond to those listed in Exhibit “M”):

(a) #7 - a statement as to the father's sales and total costs from Right at Home Realty for the period January 1 to December 31, 2016;

(b) #12 - an explanation by affidavit sworn by the father as to the reason for, and application of, the funds withdrawn by him from the parties’ joint bank account. The information provided must identify the account or accounts where the funds were sent and the account(s) owner(s);

(c) #13 and #19- an affidavit sworn by the father confirming that he holds no other accounts at his banking institution, including any safety deposit box, other than as already disclosed for the period January 1, 2016 to date and, if so, providing full particulars as to the date of the opening of the account(s) and corresponding account(s) number(s). If there is/are no such other account(s) or, with respect to #19 from Exhibit “M”, the father has no contractual relationship as of, or after, January 1, 2016 with any of the institutions identified in that request, then his affidavit shall state that. In the event that there is/are such account(s) then full particulars shall be provided; and

(d) #50 - a copy of the father's application for disability benefits. If the father does not provide this by October 31, 2017 then he shall no later than November 3, 2017, provide to the mother his authorization to obtain the information herself, at his cost. The mother’s solicitor shall prepare and forward to the father’s solicitor the authorization.

[25] All of the disclosure ordered must be provided by no later than November 24, 2017 including delivery of the affidavit referenced in [23] (b) and (c) above. The father’s reliance on an information and belief affidavit from an agent for his counsel instead of his own sworn evidence in circumstances where no reason is given why the father could not have given the evidence himself is unacceptable and should not be repeated.

[26] As for the production of the father’s medical records, the mother argues that they are relevant to the parenting and child support issues. The father has already disclosed most of those records but redacted portions for reasons not explained in the affidavit filed with the court nor satisfactorily explored in argument.

[27] In Godwin v. Bryceland,[^5] a case on which the mother relies, Jones J. ordered production of the entire contents of a file on a mother kept by a drug treatment and prevention program relating to its involvement with the mother. The court found that the counselling records were not protected by legal privilege from disclosure and that, despite that finding, Family Law Rule 19(11) still required a determination whether it would be unfair to the requesting party to proceed with the case without the documents. Jones J. reviewed the records and decided that they contained information which was prima facie relevant and possibly important to a proper determination of the custody and access issues.

[28] In this case, the court reviewed the father’s entire medical file. The redacted portions of his records dealt with changes to the father’s medications dealing with his anxiety and sleeping complaints and his reports about his distress arising from him being charged with criminal offences and, more generally, his fear of being marginalized as a father in these family law proceedings.

[29] The mother’s complaint is that the redacted records do not support a diagnosis of post-traumatic stress disorder (PTSD). She claims that no treatment plan has been disclosed and that the information recorded by the health practitioners mostly comprises self-reporting by the father. Her request to have the father submit to a mental health assessment at his cost was not pursued in argument.

[30] The redacted portions of the records in this case report what the father has experienced, the observations of the attending health practitioner are noted as are the status of the mental health examinations and the practitioner’s impressions. The treatment plans are recorded and modified as part of the father’s ongoing therapy.

[31] While in every case involving a child, the child’s best interests are paramount, not every case where a parent’s medical or mental health is involved requires unlimited records disclosure. In this case the unredacted contents of the father’s medical records add nothing to the mother’s case nor would it be unfair to her to proceed without their disclosure.

[32] The court did not deal with the father’s complaints about the mother’s disclosure. No such relief was requested in his cross-motion. As a general observation, both parties are required by the Family Law Rules to provide meaningful and robust financial disclosure. Some of the father’s RFI requests of the mother mirror those which he has been ordered to provide to her. Any further complaint about disclosure non-compliance whether in addition to the disclosure already requested, or ordered, should be resolved by motion before the next step in these proceedings. A Settlement or Trial Scheduling Conference is not the place to request, or to complain about, non-disclosure.

July 5, 2017 Motion Costs

[33] The court advised at the outset of argument that the issue of the July 5 costs would be addressed after the determination of the issues now before the court and as part of the overall costs of the parties’ motions.

Disposition

[34] For the above reasons the following is ordered:

1. The Order of Douglas J. dated October 26, 2016 is varied as set out in paragraph [18] above.

2. The father shall provide the disclosure set out in paragraphs [24] and [25] above.

3. The mother’s motion for production of the father’s entire, unredacted medical records is dismissed.

[35] If the parties are unable to resolve the issue of costs relating to the motions argued on September 27, they shall file in the Continuing Record by October 27, 2017, their written submissions limited to three double-space pages. Offers to Settle, Bills of Costs and any Authorities upon which a party may choose to rely shall be filed by that date as well but not form part of the Continuing Record. It is not necessary that submissions be made then dealing with the costs of July 5, 2017.

Justice D.A. Jarvis

Date: October 16, 2017

[^1]: 2015 ONSC 4334 [^2]: 2015 CarswellOnt 13561, 2015 ONSC 5402, [2015] W.D.F.L. 5707, 257 A.C.W.S. (3d) 890, 67 R.F.L. (7th) 46 [^3]: 2015 CarswellOnt 16187, 2015 ONSC 6487, [2016] W.D.F.L. 50, 259 A.C.W.S. (3d) 508 [^4]: para. 32 [^5]: 2008 CarswellOnt 6072, 2008 ONCJ 495, [2008] O.J. No. 4039, 170 A.C.W.S. (3d) 568, 60 R.F.L. (6th) 233