Superior Court of Justice - Ontario

COURT FILE NO.: FS-18-91343 DATE: 2018 10 29

RE: RAJEEV BHOGAL v. PRITHY JENNIFER BHOGAL

BEFORE: COROZA J.

COUNSEL: Gene Colman and Kulbir Rehal for Rajeev Bhogal Poroshad Mahdi for Prithy Jennifer Bhogal

HEARD: August 16, 2018

Endorsement

Background

[1] Rajeev and Prithy have an eleven year old daughter S (I have used her first initial to avoid identifying her). The parties have been separated since September 17, 2017. However, they live in the same matrimonial home.

[2] On June 20, 2018, the parties appeared before Price J. at a case conference. Price J. ordered that the Office of the Children's Lawyer (OCL) become involved in this file. The request for the OCL was made because Rajeev claims that Prithy has mental health issues that affect her ability to care for their child. He seeks sole-decision making for S's education and health.

[3] For her part, Prithy denies that she is a bad parent. Prithy also has concerns about Rajeev. She claims that Rajeev sleeps with S which is inappropriate for an eleven old girl.

[4] A settlement conference that was originally scheduled for July 27, 2018 was adjourned by Price J. on July 25, 2018. The conference was adjourned and the parties were required by Price J. to reschedule the conference to November 2018 because the OCL has assigned a lawyer pursuant to s. 89 of the Courts of Justice Act to act as a representative for S.

[5] According to counsel for Prithy, the OCL is holding a disclosure/settlement meeting with the parties on November 8, 2018.

[6] The parties are currently living in the same matrimonial home. However, I have been advised by counsel for Rajeev that the matrimonial home has been sold and there is a closing date of November 15, 2018.

The Motion of August 16, 2018

Rajeev's Position

[7] Rajeev requests that I make an interim custody and parenting time arrangement. Rajeev's concern is that when the home is sold, the parties will be living in separate homes and S must have stability in her routine. Rajeev asks for the following orders.

[8] First, Rajeev requests that he should have interim sole custody.

[9] Second, Rajeev requests that Prithy should pay ongoing child support towards S's special and extraordinary expenses based on her income if I order that S should live with him.

Prithy's Position

[10] Prithy's position is that Rajeev's motion is premature. Prithy submits that the disclosure/settlement meeting is important because the OCL lawyer and clinical investigator will provide the parties with their conclusions after having conducted interviews of the parties and S.

[11] Prithy argues that these conclusions may assist the court as to what interim order to make in the best interests of the child.

[12] In the meantime, once the house is sold, Prithy submits that a shared parenting schedule be ordered on a week-on, week-off basis, with a mid-week sleep over at the home of the parent who does not have S for that week on Wednesday. In the event that Monday is a statutory holiday, Prithy submits that exchanges should happen on a Tuesday morning.

Analysis

[13] When I first heard the motion on August 16, 2018, I reserved. I advised the parties that I would try to get my decision out sooner rather than later. However, I am currently in the middle of a lengthy jury trial. I mention this only to explain to the parties why it has taken some time to decide this motion.

[14] For the following reasons, I have concluded that Rajeev's motion should be dismissed.

[15] First, it would not be appropriate to make an interim order without more information from the OCL which should be forthcoming after the disclosure meeting with the parties. At the time this motion was brought in August, it was unclear when the OCL would be able to meet with the parties. At that time, the OCL had anticipated the meetings with the parties and S would be completed by the fall. I note that OCL involvement has been considered by both parties to be important. Indeed, the settlement conference was adjourned by Price J. to November of 2018 because of the OCL appointment. It seems to me that this court should receive input from the OCL before making an interim order that will affect S. Any information from the OCL will assist the court in assessing her best interests. The motion brought by Rajeev is premature.

[16] Second, it is very difficult to know where the truth lies in the competing affidavits filed by both parties. It is impossible to make findings of fact and findings of credibility on a paper record. What is clear is that Rajeev feels very strongly about Prithy's ability to make decisions and to parent S. Rajeev claims that she has a mental illness. For her part, Prithy disputes the assertions made by Rajeev and argues that Rajeev is trying to push her out of S's life. I note that Price J. granted leave to the parties to conduct “questioning” after the case conference. However, at the time this motion was argued, the parties had not questioned each other. In my view, the “questioning” would have assisted the motion judge in this case. It is very difficult to make findings of credibility on affidavit evidence that is contested and diametrically opposed.

[17] Third, I view some of the assertions made by Rajeev in his affidavit to be overblown. For example, his assertion that Prithy refusal to fill S's water bottle with cold water because she believed it would affect the cost of the household water bill is so unusual that it appears to be completely taken out of context. Even if it was not, I do not find that this decision would make Prithy an unfit parent. When I compare both affidavits, I find that Prithy’s affidavit is more balanced. Indeed, she acknowledges in her own affidavit that S has a close bond with her father.

[18] Fourth, S is eleven years old. In my view, she is of an age that the court should consider her views if they can be ascertained. Furthermore, Price J. requested the assistance of the OCL to assist the parties. In his words, "the parties’ ability to make parenting decisions in a co-operative way is being compromised by their continued occupation of the matrimonial home and they require expert assistance in coming to an arrangement for parenting in separate accommodations". The home has now been sold. It would be helpful to know OCL's views about S and what parenting arrangement would be in her best interest. Having sought the expert assistance in the first place, it would be misguided not to consider it before making an interim motion on custody and access.

Conclusion

[19] Without accepting either position as to who is the better parent, on this record, I am not prepared to make an order to Rajeev that he be given sole custody. To do so would require me to accept the evidence of Rajeev. I cannot do that on this record. Should a trial occur, such findings may be made. But it is premature at this point.

[20] Furthermore, given the fact that the parties have resided in the same home with a shared parenting arrangement already in place, to simply order sole custody to Rajeev would be a dramatic change to S which would not be in her best interests.

[21] It is for these reasons that I have concluded that this motion is premature. I dismiss Rajeev’s motion and I make the following orders.

[22] First, the parties shall meet with the OCL on November 8, 2018.

[23] Second, after the OCL meeting the parties should schedule a settlement conference as directed by Price J. (see endorsement of July 25, 2018). That settlement conference shall be held before any further motions are brought by either party. The parties are required to serve and file a case conference brief for that conference. The issues for consideration at the settlement conference will include the following:

(a) what preliminary conclusions, if any, has the OCL reached in resolving the outstanding issues; and what order should this court make, if any, concerning S; (b) whether this is a case for a s. 30 assessment, under the Children’s Law Reform Act, and if so, at what cost and paid by whom; (c) if necessary, revisiting the motion brought by Rajeev; (d) other issues which counsel agree in advance should be discussed.

[24] Third, since the parties will be moving out of the matrimonial home on November 15, 2018, the court must address a parenting arrangement for S. I am of the view that the proposed schedule set out by Prithy is the better one at this time. It is a fair and equitable shared arrangement and reduces the access exchanges. Therefore, I order, on an interim basis, that the parties shall have shared parenting when the house is sold on November 15, 2018 on a week on, week off basis, with a mid-week sleep over at the non-resident parent's home on Wednesday. In the event that Monday is a statutory holiday, exchanges will happen on Tuesday morning. The parent who has access to S will ensure that she does all her homework and neither party will speak ill of the other to S.

[25] All exchanges will take place at S's school after school hours. The following chart sets out the exchanges:

	Monday	Tuesday	Wed.	Thurs.	Fri.	Sat.	Sun
Week 1	Prithy	Prithy	Rajeev	Prithy	Prithy	Prithy	Prithy
Week 2	Rajeev	Rajeev	Prithy	Rajeev	Rajeev	Rajeev	Rajeev

[26] Fourth, counsel for both parties shall forward to Faryal Rasheed, counsel acting for the OCL, a copy of this endorsement with a request that she or her designate attend the settlement conference when it is scheduled.

[27] I want to make it clear that the shared parenting arrangement that I have made is a temporary order. This interim order is subject to change after the OCL has met with the parties, and the parties have held a settlement conference. If a further motion is brought by either party after the settlement conference and the meeting with the OCL, the court expects that OCL input will be provided by Ms. Rasheed and/or Ms. Iafrate the clinical investigator regarding S's views.

Post Script

[28] After this motion was argued, counsel for Rajeev wrote to me to request a decision as soon as possible because the home was going to be sold on November 15, 2018. It was quite proper for counsel to advise me that the closing date for the matrimonial home had now been set for November 15, 2018. I note that counsel for Prithy had been copied on the letter.

[29] However, what is not proper is writing a second letter asking for a decision without copying counsel for Prithy. I received a second letter dated October 24, 2018 from a law clerk employed in the office of counsel for Rajeev. It may very well have been an oversight. Counsel for Prithy suggests that it was not an oversight because counsel for Rajeev failed to mention that there was an OCL meeting scheduled for November 8 in this second letter. I do not need to make any finding. It is completely unnecessary for me to do so in light of my decision.

[30] It seems to me that it likely was an oversight. After all, counsel for Prithy was copied on the first letter. I find it hard to accept that counsel deliberately did not copy counsel for Prithy on the second letter. However, in the future, I remind counsel that if they decide to send correspondence to the Court, the other party must be copied.

Costs

[31] In the event the parties are unable to agree upon costs of the motion, they may make written submissions as follows:

(a) The submissions shall be limited to a maximum of three pages, exclusive of a bill of costs; (b) Written submissions shall comply with sub-rule 4.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; (c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with sub-rule 4.01(1), item 2 of the Rules of Civil Procedure with respect to font size; (d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages; (e) Written submissions shall be delivered by counsel for Prithy by 5:00 p.m. on the 20th business day following the date on which this endorsement is released; and upon receipt of Prithy's submissions, counsel for Rajeev shall reply on the 15th business day following the date on which Prithy's submissions are received. (f) There will no reply by Prithy.

Coroza J. DATE: October 29, 2018