Court File and Parties

CITATION: Dookie v. Surujmohan, 2017 ONSC 6073

COURT FILE NO.: F-1222/13

DATE: 2017-10-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chatwante Dookie, Applicant AND: Ravi Surujmohan, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Self-Represented Applicant Self-Represented Respondent

HEARD: October 6, 2017

Endorsement

[1] The Respondent Father brings a Motion to Change the Order of Justice Lafrenière dated January 31, 2014. In his Motion to Change he seeks joint custody of the parties’ son, Jayden Surujmohan, born November 15, 2007 [“Jayden”], and relief in relation to access, including police enforcement and telephone time. He also seeks an Order that the Applicant mother be responsible for half of the transportation related to access.

[2] The Applicant mother seeks a reduction in the father’s access as well as disclosure of certain financial information including the father’s Notices of Assessment for the years 2014, 2015, and 2016. The mother opposes the father’s request for joint custody and seeks a continuation of the existing Order for sole custody.

[3] The matter has been before the Courts numerous times previously.

[4] To their credit, the parties resolved a number of issues before the hearing of the motion, leaving only the following issues to be determined: the appropriate regular access schedule; whether the mother should assist with access transportation; and whether there should be a police enforcement clause.

Existing Court Orders

[5] The mother has custody of the child pursuant to the Order of Justice Czutrin dated February 10, 2012 and the parties have agreed that this should continue.

[6] The Final Order of Justice Mazza dated October 8, 2013 sets out the father’s time with the child, which is to be alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. That Order also provides for a travel consent mechanism, and the sharing of time with Jayden on holidays “as mutually agreed”.

[7] The Final Order of Justice Lafrenière dated January 31, 2014 varies certain terms of Justice Czutrin’s Order and sets out child support provisions including the sharing of special and extraordinary expenses.

[8] By Endorsement of Justice Brown, further to a Motion to Change brought by the father, dated March 31, 2014, the father is to be responsible for transportation of the child for access. In making that Order, Justice Brown found that at that time there was no material change that affected or was likely to affect the child, such that the terms of the Final Order of Justice Czutrin should be varied.

[9] Although this Motion to Change was framed as a Motion to Change only Justice Lafrenière’s Order, both parties argued the Motion in a manner that sought to change or defend terms of Justice Mazza’s and Justice Brown’s Orders as well.

Material Change of Circumstances

[10] The father resides in Toronto, Ontario. The mother resides in Hamilton, Ontario. The current Orders provide for alternate weekend access with the father, with the father being responsible for transportation.

[11] According to both parties, access has largely broken down since January, 2017.

[12] The father says that he has had access with Jayden on one occasion in April 2017 (apart from access in the summer). He says he has been trying to exercise access and has attended in Hamilton to pick up Jayden and that the child has not been made available.

[13] The mother states that she has never denied access and that in fact what happens is that the father makes multiple excuses and then does not attend for access as scheduled.

[14] Either way, this is far less time for Jayden with his father than what the Order provides for. This Court finds that the breakdown in access constitutes a material change of circumstances for the purpose of this variation application. The Court is concerned that the lack of regular access has the potential to negatively affect Jayden and the father-son bond.

Regular Access Schedule

[15] The father argues that access should continue to be on alternate weekends, but instead of being from Friday to Sunday, it should be from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. He asserts that it is difficult for him, with traffic, to get to Hamilton on time on Friday nights.

[16] The mother asserts that access should be once per month from Friday at 3:00 pm with pick up at Jayden’s school to Sunday evening. She states that it is difficult for Jayden to have his father fail to show up when he is looking forward to time with him. From her perspective, if access is reduced to once per month, it would be more likely to be exercised consistently. She also states that Jayden is frequently left with others during the father’s access time.

[17] In his submissions, the father conceded that there was only one occasion since January 2017 when he says he came to Hamilton and access was, in his word, denied. This is despite the wording of his Change Information Form in which he states that the mother “has been denying” him access to his son. The father states in a subsequent affidavit that he came to Hamilton in February 2017 to exercise access and that the Applicant did not answer the door. The mother states that she has never denied access.

[18] That the father points to a single occasion when he says he attended and did not have his scheduled access lends credence to the mother’s assertion that it is the father who fails to attend for his regular access and who gives a variety of reasons why he cannot come to Hamilton to pick up his son for access.

[19] A regular access schedule should be treated by parents with as much rigour and commitment as an employment schedule. Court ordered access time is not “optional” to either party – it is binding both on the residential parent and on the access parent. The child should be able to rely on the parent being available for his or her scheduled time as set out in the Order. So too, the other parent should be able to rely on the access parent caring for the child as scheduled.

[20] In the circumstances, the Order that this Court finds to be in the best interests of Jayden is for regular access to continue to be on alternate weekends, with the time adjusted as sought by the father so that he avoids the Friday rush hour traffic. The Court finds that once-monthly access is not sufficient to maintain a healthy and strong bond between Jayden and his father.

[21] The father stated in his submissions that if alternate weekend access is maintained, he will be there consistently. The mother and the child should be able to rely on the access schedule. Given the history of this matter, this Court orders that the father shall have alternate weekend access as sought, but, if he fails to be available for three consecutive visits, the schedule shall become one access weekend every third week from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. Only once he has had three consecutive visits at three week intervals will the regular alternate week-end access schedule resume.

[22] The parties advised the Court that they use texting to communicate. The father shall text the mother by 5:00 p.m. on the Thursday immediately preceding his weekend to confirm whether he will or will not be exercising access in accordance with the Order. The mother shall confirm receipt of that text. This will assist the mother in her planning and will give the child notice of whether he can expect to spend time with his father that weekend.

Transportation

[23] The father seeks a change to the transportation arrangement or in the alternative, a reduction in the table amount of child support to account for his access costs.

[24] The father says he has been responsible for both pick up and drop off of the child for eight years and that now it is the mother’s turn to help. The parties live approximately 100 km apart. The father would like to be responsible for picking up the child in Hamilton and for the mother to pick up the child at the conclusion of access in Toronto.

[25] The mother opposes the father’s request indicating that it would be very difficult for her as she has other children. Further, she says she is responsible for every other aspect of the child’s care since the parties separated and that the very least the father can do is be responsible for transportation.

[26] This is virtually the same issue as was argued before Justice Brown in March of 2013. At that time Justice Brown declined to make adjustments to the transportation regime, finding as a preliminary matter, that there was no material change in circumstances. She noted, however, that while there is jurisdiction under the Divorce Act and the Children’s Law Reform Act to order the sharing of transportation, it is most often the access parent who is responsible for transportation.

[27] This Court has found that there is a material change of circumstances at this time in that access has broken down. Nevertheless, this Court finds that the transportation arrangement which is in the best interests of Jayden continues to be that his father be responsible for transportation for access. While it may be inconvenient for the father to pick up and drop off the child in Hamilton, this Court finds that it is the most appropriate arrangement on the evidence before the Court. Time driving a child is often meaningful time with a child. Further, the mother is responsible for the balance of Jayden’s care, including all issues related to his schooling, medical care, care when sick, attending parent-teacher interviews, and daily routines. It is appropriate that the father continue to provide transportation for his access.

[28] The father asks that if the Court is not prepared to order a sharing of transportation, his child support be reduced to account for the cost of gas. There is no evidence before the Court regarding the cost of gas. The father states simply that he is a low income earner and that the transportation is causing him undue hardship.

[29] The father currently pays child support of $194 per month and seeks a reduction of $100 per month if the mother is not ordered to assist with transportation. This is more than half of the already modest table child support amount.

[30] There is insufficient evidence on this Motion to Change to rule on the issue of undue hardship arising from the cost of transportation. Neither party has filed a financial statement, nor is there any financial disclosure other than the father’s 2016 Notice of Assessment showing an income of $24,552 for that year. The father states that he is unable to afford the pick-ups and drop offs in Hamilton but has provided no details as to the cost. Further, the father did not seek a reduction of child support in his Motion to Change, only raising it in his Affidavit dated July 7, 2017 and the Factum for the Motion.

[31] The request for a reduction in child support on the basis of access costs is dismissed.

Police Enforcement

[32] The father seeks a police enforcement clause with respect to the access terms.

[33] There is no basis for such an Order in this case. In argument, the father acknowledged that he had only attended in Hamilton once to pick up the child and been unable to do so. The mother asserts that access was not denied on that occasion.

[34] In any event, as set out in the decision of Justice Pazaratz in Patterson v. Powell, 2014 ONSC 1419, which the father provided to the Court, police enforcement should not be used to deal with the regular, ongoing implementation of access Orders. Justice Pazaratz stated “Nothing in section 36 [of the Children’s Law Reform Act] suggests that police enforcement is appropriate – or even available – as a long-term, multiple-use, open-ended, on-demand enforcement tool.” See paragraph 16. Justice Pazaratz also stressed the serious consequences to children of having police involved in pick-up and/or drop off, such as feeling helpless or afraid for their parents, feeling guilty, or feeling despair.

[35] What is needed in this case is consistent attendance for access, and better communication between the parents to confirm that access visits will proceed. There is no need for police enforcement which would only heighten tension between the parents and cause undue stress and anxiety for Jayden.

Request to Initialize and/or Seal the File

[36] Both parties indicated in their submissions that when the file was previously in Toronto, the case had been initialized, and perhaps also sealed. The parties requested that this Court do the same. The parties provided no evidence regarding how the matter was handled previously. The parties were vague in their submissions regarding why this step would be necessary in the circumstances of this case.

[37] Section 70 of the Children’s Law Reform Act provides that the Court may limit access to a Court file where it is in the best interests of a child. Considerations include the nature and sensitivity of the information contained in the documents relating to the application and whether not making the Order could cause physical, mental, or emotional harm to any person referred to in the documents.

[38] In this case, there is insufficient evidence for the Court to find it necessary to initialize or seal the file.

Conclusion and Order

[39] In conclusion the Court makes the following Order:

1. Travel: On consent, either party may travel with the child within Canada or internationally without the prior written consent of the other party. The father shall return the child’s passport to the mother promptly after each use.

2. Child Support: On consent, the father shall pay table child support to the mother in the amount of $196 per month on the first day of each month, based on his 2016 income for child support purposes of $24,522;

3. Ongoing Disclosure: On consent, the parties shall exchange complete income tax returns and notices of assessment, and any other information reasonably required to determine child support, by May 31 each year. On that basis they shall adjust the ongoing table child support amount, with the new amount to take effect from July 1 to the following June 30;

4. Custody: On consent, the father’s Motion for joint custody is withdrawn, with the sole custody provision in the Order of Justice Czutrin dated February 10, 2012 to continue in full force and effect;

5. Telephone time: On consent, the father may telephone the child each day and speak with the child for up to 15 minutes each call. If the child is not available when the father calls, the mother shall make arrangements for the child to return the father’s call by the end of that day.

6. Holiday Schedule: On consent, the parties shall follow the following holiday schedule:

a. March Break: The father shall pick up the child form the mother’s residence on the first Saturday of March Break, at a time to be agreed between the parties and return the child to the mother on Wednesday afternoon. The child shall reside with the mother for the balance of the March Break from school;

b. Summer Break from School: The child shall reside with the father from July 1 – July 31 each year and with the mother from August 1 to August 31 each year;

c. Winter Break from School: The child shall reside with the mother from the commencement of the Winter Break until December 25 at 2:00 p.m. The father shall pick up the child on December 25 at 2:00 p.m. and the child shall remain with him until the Saturday before the resumption of school in January, at a time to be agreed upon by the parties. The father shall return the child to Hamilton.

7. Regular Schedule: Commencing immediately, the father’s regular access to the child shall be as follows:

a. Alternate week-ends from Saturday at 9:00 a.m. until Sunday at 5:00 p.m.;

b. The father shall text the mother by 5:00 p.m. on the Thursday immediately preceding his access weekend to confirm whether he will be attending to pick up the child. The mother shall confirm receipt of the text;

c. In the event that the father fails to be available for three consecutive access visits with the child as provided for in clause 5(a) herein, the father’s access shall be as follows: Every third weekend from Saturday at 9:00 a.m. until Sunday at 5:00 p.m. Once he has had three consecutive visits at three week intervals, the regular alternate week-end access schedule set out at clause 5(a) shall resume.

8. The father shall continue to be responsible for the pick-up and drop off of the child from the mother’s residence in Hamilton;

9. The father’s requests for a police enforcement clause and for a reduction in child support on the basis of access costs are dismissed;

10. The parties’ request for initialization and/or a sealing Order is dismissed.

Costs

[40] The parties are encouraged to agree upon costs, if any, as success on this Motion appears to be divided.

[41] In the event that the parties do not agree, the Court will accept brief cost submissions and Bills of Costs by November 10, 2017 and brief responding submissions by November 17, 2017.

[42] If submissions are not received on this timeline, the parties will be deemed to have resolved the matter of Costs.

Madsen, J.

Date: October 11, 2017