Court File and Parties

COURT FILE NO.: FS-17-21854 DATE: 20190221 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sujita Simkhada, Applicant (Responding Party) AND: Bijay Simkhada, Respondent (Moving Party)

BEFORE: Nakonechny, E.L., J.

COUNSEL: Renatta Austin, for the Applicant Bijay Simkhada, self-represented

HEARD: February 12, 2019

Reasons FOR DECISION

The Motion

[1] This is the Respondent’s Motion to Change the Final Order of the Honourable Justice E.A. Quinlan dated March 2, 2015 (“the Order”). The Order was made on consent of the parties.

[2] At the Trial Management Conference before Madam Justice Kristjanson on January 28, 2019, the Respondent agreed to release his claim for a change of custody of the parties’ daughter, S. S., born November 11, 2007 (age 11) (“S.”). The parties agreed the motion would proceed only on the issues of the Respondent’s access to S., child support and the issues surrounding travel consents and obtaining government documents.

[3] The Respondent seeks the following:

1. That his access to S. be specified: every Friday from after school to Saturday at 8 p.m.; from Thursday after school to 8 p.m.; two weeks of holiday time to be divided over Christmas, March Break and summer; and time on the Hindu religious holidays;
2. That the parties share the access transfers at the midpoint of Yorkdale mall;
3. That any arrears of child support accrued under the Order be expunged;
4. That child support be reduced from $600 per month to $240 per month in accordance with the Child Support Guidelines for a minimum wage income.

[4] In her Response to Motion to Change, along with other relief, the Applicant seeks to reduce the Respondent’s access to S., and to specify his regular and holiday access schedule. The relief the Applicant seeks is as follows:

1. That the Respondent have weekly Sunday day access from 12 p.m. to 4 p.m. except Mother’s Day; Tuesday evening access from 4:00 p.m. to 6:00p.m.; and holiday access on Dashin in odd years; 1 hour on Diwali in odd years; 1 weekday in March Break; 1 weekday each week during July and August unless it interferes with S.’s activities or a scheduled vacation;
2. The right to cancel access visits at her discretion with a make-up visit within two weeks;
3. Telephone access subject to the child’s wishes;
4. A requirement that the Respondent confirm access 24 hours in advance and discretion to cancel access if he does not confirm;
5. That the Respondent be responsible for all pick up and drop offs.
6. That the Respondent’s claims to a change of quantum child support and expunging of arrears be dismissed;
7. That she be permitted to travel without the Respondent’s written consent with production of travel information;
8. That she be permitted to obtain government documents for the child without the Respondent’s consent or signature.

[5] At the commencement of the hearing of the motion, counsel for the Applicant pointed out that the Respondent had not filed a factum for the motion as required under the Practice Direction for Toronto. The Respondent advised he was not aware of this requirement despite the fact that he had previously received copies of Judge’s endorsements from this Court where that requirement is clearly stated.

[6] The parties both filed extensive Affidavit material for this motion. They had appeared before a number of judges on conferences and attended at Mediate 393 in an attempt to resolve the issues, without success.

[7] Rule 2 of the Family Law Rules instructs the Court to deal with cases fairly in a way that is appropriate and an efficient use of the Court’s resources. I found that it would not be efficient for the parties or the best use of the court’s resources for the matter to be adjourned to permit the Respondent to file a factum. As such, I permitted the hearing of the motion to proceed without the Respondent serving and filing a factum.

The Order of E.A. Quinlan, J. dated March 2, 2015

[8] The relevant paragraphs of the Order sought to be changed are as follows:

“9. The visiting parent (previously defined as the Respondent) shall have parenting time with the child as arranged in advance by the parties. 10. The parties shall equally share all holidays as arranged in advance between them, with consideration given to their work schedules and holiday traditions. The parties shall use their best efforts to mutually agree on the details of this no later than 14 days prior to any given holiday, but if no agreement can be reached the parties shall refer this matter to the court for judicial determination. 14. Neither parent shall take the child out of the province of Ontario without the prior written consent of the other, which shall not be unreasonably withheld. 15. The Applicant and the Respondent hereby consent to the other party taking the child for a vacation for a maximum of two weeks. The party who is travelling shall provide the other with details of when and where the child will be staying, contact information of hotels and travel arrangements. 16. Commencing on April 1, 2015 and on the first day of each month thereafter until further order of this Court the Respondent shall pay to the Applicant final support for the benefit of the child mentioned above in the amount of $600. 17. The above mentioned award of child support is not in accordance with the Child Support Guidelines because the Respondent is currently not employed but wishes to pay $600 for the support of his child inclusive of day care expenses. 18. The Respondent shall advise the Applicant of any changes to his income following which the parties will review the amount of child support. 19. The Payor shall reimburse the Recipient for 50% of the child’s future extraordinary expenses. This shall be done by having the Recipient provide proof of what she paid for s. 7 expenses and the Payor shall pay his share forthwith, and not later than 30 days after receiving proof. 20. The parties agree that the following expenses are appropriate s. 7 expenses and shall be shared: a) health related expenses that exceed health insurance reimbursements, including orthodontic treatment, counseling, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; b) expenses for post-secondary education; c) extraordinary expenses for extracurricular activities. 21. The Payor shall only be required to contribute to the cost of extraordinary expenses that are agreed in advance between the parties, but the Payor may not unreasonably withhold his consent to the payment of s. 7 expense needed by the child. 22. The parties shall share 50% of summer camp and one vacation each year for the child provided the parties agree in advance for the child to participate.”

Background

[9] The parties’ evidence differs significantly regarding the Respondent’s parenting of S. since separation. The Applicant states that she has been the child’s primary caregiver and solely responsible for her emotional and financial well-being. The Applicant states that the Respondent “abandoned” the child at the time of separation. She says that the Respondent showed no interest in spending time with the child and expressed no concerns about her medical, educational or other needs. The Applicant says that the Respondent puts his own needs before the child’s needs and is not sensitive to her wishes.

[10] The Respondent blames the Applicant for marginalizing his relationship with S. out of spite towards him. He states that the Applicant does not share the child’s pertinent information with him to keep him out of the child’s life and prevents his access without a valid reason.

[11] The parties also do not agree on the amount of access exercised by the Respondent since separation and why it was not consistent. They do agree that there were periods when the Respondent did not have access to S. but each of them blames the other for the access not taking place.

[12] The parties do agree that in September 2017 the Respondent exercised access to S. at his current home in Oakville. The Respondent rents a room in a home with shared bathroom and kitchen facilities. There are other tenants in the home.

[13] The Applicant states that after that visit, S. expressed concerns to her about access at her father’s home. S. said that she did not feel safe and comfortable at the Respondent’s home because there were “strangers” and a “creepy dog”, the home was dirty and smelled of smoke, and there was no food. S. was also concerned that the shared bathroom, which has two doors, was not secure and the room was small with no place for her to sleep. S. also complained that her father fell asleep and left her to watch a movie on his phone. The Respondent’s access stopped after this visit based on what the Applicant says was the child’s refusal to go back to the Respondent’s home.

[14] The Respondent has produced photos of his living space which he says is small but clean and safe. Both bathroom doors lock. He has snacks for the child in his room. If granted overnight access he will obtain bunk beds or a pull out couch. No one smokes in the home but smoke may linger on the clothes of smokers who enter the home.

[15] The Respondent states that he wishes to support the child to overcome her fears of new people, places and dogs by helping her experiencing new things in a safe and careful way. He believes this is important for S. as she grows and matures.

[16] The Respondent’s access to S. recommenced in March, 2018 pursuant to a consent Order in this proceeding. Since April 15, 2018, the Respondent has exercised access to S. on Sundays from 10 a.m. to 6 p.m.

[17] The Respondent states that access on Sundays does not work well based on his taxi driving schedule. He says he works late on Saturday nights and is often tired on Sundays. This impacts on his ability to interact with the child. He says he agreed to Sunday access in March 2018 because he believed it would only be a temporary schedule.

[18] The Applicant views the Respondent’s position on access dates as putting his own wishes before the needs and concerns of the child. She states that she tried to assist the Respondent by encouraging the child to spend time at her father’s home but the Respondent was resistant to even acknowledge that the child’s concerns were valid and should be addressed.

[19] The Applicant opposes overnight and vacation access for the Respondent until he has suitable accommodations for S. and there has been a reintegration of access.

[20] On November 2, 2018, Kiteley, J., made an Order for a referral to the Ontario Children’s Lawyer for a Voice of the Child Report on the issue of overnight access (“the Report”). The Report dated January 3, 2019, was completed by Susan Walker Kennedy, Ph.D., C. Psych. (“the Clinician”) and filed with this Court.

[21] The Report states that the child expressed clearly that she does not want to stay overnight at her father’s current residence because she does not feel comfortable there. S. does not want to spend more time with her father. She said she would continue the Sunday visits but for a shorter time period.

[22] S. reiterated to the Clinician the previously expressed concerns of the shared bathroom, the “creepy dog” who she fears and that she is uncomfortable that her father lives in one room. She does not like going with the Respondent to other people’s houses who she does not know, which she finds awkward. S. told the Clinician she is most comfortable in her “own” home.

[23] S. also commented that sometimes her father yells at her for no reason.

[24] Most concerning to me is S.’s statement to the Clinician that: “going to her father’s house is boring and it feels like a waste of her weekend”.

[25] On June 13, 2018, Kiteley, J., made a Refraining Order on consent of the Respondent and the Family Responsibility Office which provided that commencing July 1, 2018 the Respondent would pay ongoing child support of $600 per month and pay $100 per month on account of arrears. At the time of the Refraining Order the arrears of support were $20,870.49.

[26] In Minutes of Settlement signed by the parties on the same day, the Applicant acknowledged that from April 1, 2015 to June 13, 2018 she received the total amount of $13,200 for child support directly from the Respondent and that that amount should be credited to the Respondent’s arrears of child support owing.

[27] The Applicant’s evidence is that as at September 13, 2018, the arrears of child support based on an FRO Statement of Arrears were $6,427.49.

[28] The Respondent did not provide any evidence of the current arrears owing or whether he was in compliance with the Refraining Order.

[29] The Respondent received a Certificate of Discharge in his Bankruptcy on November 18, 2015. The Respondent’s income tax returns filed show Line 150 income of $2,107 in 2015; ($4994) in 2016 and $4,821 in 2017. The Respondent has also filed business income tax documents for his company incorporated in 2016. He operates his taxi and has worked for Uber.

[30] The Applicant resides with S. and her husband in Scarborough. She works for the Royal Bank and earns about $62,000.

[31] The Applicant seeks to dispense with the Respondent’s written consent for her to travel with the child. She states that the Respondent has unreasonably withheld consent for travel in the past and that she has had to retain counsel to compel his consent which was only given at the last minute.

[32] Similarly, the Applicant states that the Respondent failed to sign the necessary consent to renew the child’s passport in a timely fashion. This was eventually agreed to. The child’s passport is now valid until September, 2022. At that time S. will be almost 15 years of age.

[33] The Respondent states that the Applicant gave him little or no notice of the travel or the required consent and that as soon as he was able to, he provided it. He also says he attempted to accommodate the signing of the passport documents but the Applicant refused to drive half way to meet him.

[34] The Respondent is concerned that the Applicant may not be truthful about where and when she is taking the child so he needs to see not just the itinerary but all of the travel documents and details.

[35] The Respondent is also concerned that the removal of the requirement of his consent to travel and obtain government documents for the child is further evidence of the Applicant’s attempts to remove him from the child’s life. He says he recognizes that travel is important for the child and that he supports the child travelling with both parents.

The Law and Analysis

[36] The Order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Under s. 17(1)(a) and (4) of the Divorce Act, a Court may make an order varying a child support order if it is satisfied that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order.

[37] Under s. 17(1)(b) and (5) of the Divorce Act, before a Court makes variation in a custody or access order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order. In making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[38] A party applying for a change to an access Order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child: Gordon v. Goertz, [1996] 2 S.C.R. 27. If that threshold is met, the court must embark on a fresh inquiry as to what is in the best interest of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

Access

[39] The parties agree that paragraphs 9 and 10 of the Order should be varied to provide a specific access schedule for the Respondent. On that basis, I am obligated by Gordon to determine what is in the best interests of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

[40] This Motion to Change is brought under the Divorce Act s. 17(1)(b) and (5). In determining best interests under that subsection, courts in Divorce Act proceedings have routinely referred to the best interest of the child test set out in the Children’s Law Reform Act, s.24 (2)(a) to (h). This test sets out a list of needs and circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive:

24(2) Best Interests of Child – The court shall consider all the child’s needs and circumstances, including:

(a) the love, affection and emotional ties between the child and; (i) each person including a parent or grandparent entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[41] I have considered all of the relevant factors in s. 24(2)(a) to (h) and applied them to the facts as found by me in this case. In particular, under s. 24(2)(b), I have considered the child’s views and preferences, specifically the evidence contained in the Report.

[42] S. told the Clinician that she does not want to spend more time with her father. However, at age 11, a child’s wishes are not determinative of the matter.

[43] In determining what is in S.’s best interests I must also consider the importance of maximum contact under s.17(9) of the Divorce Act. This subsection provides that in making an order varying an order, the court shall give effect to the principle that the child should have as much contact with each parent as is consistent with the best interest of the child.

[44] While I am mindful of S.’s wishes and concerns, I am very troubled by her statement to the Clinician that access with her father is “boring” and a “waste of her weekend”. The father’s home may not be as well appointed as the home S. shares with her mother and her mother’s new partner where she has her own room, but I find from the evidence presented that it is a clean and appropriate space. I understand that access with an 11 year old child may require more activities and interaction than the father has provided to date, but I accept his evidence that he has done his best within his financial and housing means to make his access time with his daughter meaningful.

[45] To reduce the Respondent’s access to the very minimal times sought by the Applicant could send a message to S. that time spent with her father is not important and her relationship with her father is not worthy of her time. I find that this is not in S.’s best interests.

[46] The Respondent asks for a change of his weekly access to Saturdays. There is no evidence that this would conflict with S.’s tutoring or specific activities. Even if it did, I find it is more important that the child spend quality time with her father so they can create their own home traditions and routines.

[47] S. has said she does not want to have overnight visits with her father. Part of the resistance is the lack of space for her and the logistics of the home. I find that overnight access would be appropriate for S. but only if these issues are addressed.

[48] The Respondent says he is willing to allay his daughter’s concerns about the shared bathroom, the dog and the “strangers” by dealing with S.’s safety concerns directly with her. He also says he will obtain bunk beds or a sofa bed to make a special space for S. in his room. I accept that he is prepared to do this. The Respondent shall purchase a bunk bed or sofa bed to provide the child with a specific sleeping space in his home no later than March 31, 2019. A slow reintegration of overnight access shall commence thereafter.

[49] I find that overnight access would also be appropriate during holiday times such as March Break and summer. The parties mostly agree on the sharing of times on religious holidays. I will specify that schedule with the proviso that the parties shall accommodate one another if there are family events during those holidays that would require a change to the set schedule.

Child Support

[50] Paragraph 17 of the Order states that the Respondent shall pay child support in the amount of $600 per month, inclusive of day care expenses. This amount is not in accordance with the Child Support Guidelines because the Respondent was unemployed and an undischarged bankrupt at the time.

[51] Paragraph 18 of the Order provides that the Respondent shall advise the Applicant of any changes to his income which could trigger a review of child support.

[52] The Respondent is now employed as a taxi driver. His income tax returns and financial statements filed do not show that a change in his circumstances has occurred since the making of the Order that would warrant a reduction in child support.

[53] A material change is one which, if known at the time, would likely have resulted in different terms in the order: Willick v. Willick, [1994] S.C.J. No. 94. The Respondent knew at the time he consented to the Order that he was unemployed and had minimal income. On those facts he agreed to pay child support of $600 per month, inclusive of day care expenses, because he wished to do so. The Respondent is employed now. His financial situation is better than it was at the time the Order was made.

[54] The Respondent has not met the threshold of material change required to permit me to vary the child support provisions in paragraphs 16, 17, 19, 20, 21, or 22 of the Order.

[55] Because I find that the Respondent has not met the threshold required for me to vary the child support Order prospectively, I also cannot vary it retroactively so as to expunge the arrears that have accumulated. The arrears must continue to be paid along with the go forward support.

Travel and Government Documents

[56] Paragraph 14 of the Order provides that neither party shall take the child out of the Province of Ontario without the prior written consent of the other.

[57] The Applicant wishes to change that paragraph to dispense with the consent of the Respondent to her travelling with the child. She also seeks to dispense with the Respondent’s consent to obtain government documents for the child.

[58] Under paragraph 16(5) of the Divorce Act, an access parent has a right to make inquiries and be given information with regard to the child. Taking all of the evidence into consideration, I find that the Respondent is entitled to receive all information regarding the child’s travel including airline tickets or other travel documents, accommodations and contact numbers where the child can be reached during the holiday for any travel with the Applicant. The Applicant should only be required to obtain the written consent of the Respondent if the travel interferes with the Respondent’s access time, if it requires the child to be removed from school or if it is outside of Canada.

[59] If the travel is on the Applicant’s time with the child and the child is not being removed from school or taken out of Canada, the Applicant is still required to provide all of the travel information including itinerary and accommodation details and a number where the child can be reached, but the Respondent’s written consent to the travel is not required.

[60] The Respondent is an access parent. It is in S.’s best interests that he be part of her life and upbringing. If his signature is required to obtain a government or other document for the child, the documents should be provided to him with sufficient notice and returned promptly, signed by him.

Order

[61] This Court orders that:

1. Paragraphs 9 and 10 of the Order of E.A. Quinlan, J., dated March 2, 2015 (“the Order”) are deleted and replaced as follows.
2. The Respondent shall have access to the child, S., born November 11, 2007, as follows: i. Every Saturday from 10 a.m. to 6 p.m. commencing Saturday March 2, 2019. ii. The Respondent shall purchase either bunk beds or a sofa bed no later than March 31, 2019 to permit the child to sleep overnight at his home. He shall provide photos and receipts of the purchase to the Applicant on or before April 3, 2019. The Respondent shall have overnight access to the child once per month thereafter from Friday after school to Saturday at 6 p.m. in addition to the regular weekly Saturday day access above on the first Friday of every month commencing Friday April 5, 2019. iii. After school access every Tuesday from 4 p.m. to 6 p.m. commencing Tuesday February 26, 2019; iv. Holiday access as follows and is in addition to the regular access above: 1. Dashin in odd years; 2. 2 hours on Diwali at times to be agreed upon in odd years; 3. Commencing in March 2020, the Respondent shall have access to S. for two overnights during March Break; 4. Commencing in summer 2019, the Respondent shall have access to S. for two additional overnights in alternating weeks in each of July and August. The child’s camp and the Applicant’s holiday scheduling should be done to accommodate these visits; 5. Commencing in December, 2019, the Respondent shall have access to S. for two overnights in each of the two weeks of the school Christmas break. v. The Respondent shall provide the Applicant with no less than 24 hours’ notice if he needs to cancel a scheduled visit. In an emergency, notice of the cancelled visit will be given as soon as possible; vi. The Applicant may cancel a scheduled visit in the case of extreme weather, the child’s illness or other emergency. A make-up visit will be scheduled within two weeks of the cancelled visit. vii. The Respondent shall be responsible for the pick-up and drop off of the child.
3. The Respondent’s Motion the Change the child support paragraphs of the Order, paragraphs 16, 17, 19, 20, 21 and 22 and to expunge arrears accumulated pursuant to the Order is dismissed.
4. Paragraphs 14 and 15 of the Order is deleted and replaced with the following: i. The Applicant may take the child for a vacation for a maximum of two weeks. For any vacation with the child, the Applicant shall provide the Respondent at least 14 days in advance of the holiday with all of the travel information including airline tickets or other travel documents, accommodation information and a telephone number where the child can be reached. ii. If the vacation is outside of Canada, impinges on the Respondent’s access time and/or requires the child to be removed from school, the Applicant must obtain the Respondent’s written consent to travel. iii. If the vacation is not outside of Canada, does not impinge on the Respondent’s access time and/or does not require the child to be removed from school, the Applicant does not require the Respondent’s written consent to travel. iv. If written consent is required, the Applicant shall provide the consent with the travel information to the Respondent 14 days in advance of the holiday. The Respondent shall return the signed consent within 7 days of the date of travel.
5. The Respondent shall sign and return to the Applicant any government or other documents which require the signature of both parents within 2 days of the document being provided to him.
6. If the Respondent seeks to increase his access to S. after December 31, 2019, he may bring a further Motion to Change.
7. Given the Order made, I encourage the parties to resolve the costs issue between them. If they are not able to resolve the issue of costs by March 8, each party may make written submissions of no more than three pages (not including the bill of costs and any offers made) to be served on the other party and filed no later than March 22, 2019.

Nakonechny, J. Date: February 21, 2019