Court File and Parties

COURT FILE NO.: FS-16-313-00 DATE: 2020 05 15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUPREET WALIA v. ASUTOSH WALIA

BEFORE: Kumaranayake J.

COUNSEL: Applicant, Self-Represented Lakhwinder Sandhu, for the Respondent

HEARD: April 28, 2020 and May 7, 2020 by teleconference

Endorsement

[1] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. Pursuant to the Superior Court of Justice’s Notice to the Profession dated March 15, 2020, found at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (“the Notice to the Profession”). The Respondent brought a request for motion to be heard on urgent basis. He alleged that the parties’ reconciliation had broken down on March 30, 2020. He stated that prior to that, he had been having equal parenting time with the Applicant, but following the breakdown of the reconciliation, the Applicant had unilaterally reduced children’s access to Respondent to eight hours on Saturdays only.

[2] On April 21, 2020, I determined that the request was urgent and gave directions for the filing of material. I also directed that the Respondent serve and file a copy of any endorsement or order that related to the issue of custody and/or access. The Respondent subsequently electronically served and filed seven endorsements and one order.

[3] It should be noted that at the time the Respondent made his request to bring a motion, he also filed his motion material and he was representing himself.

[4] Within her responding materials, the Applicant provided an endorsement of Snowie J. (dated November 17, 2017), which the Respondent had not provided.

[5] On April 28, 2020, I had the following before me, which I have reviewed:

1. Respondent’s undated letter to establish urgency which had been electronically submitted on April 21, 2020;
2. Respondent’s Notice of Motion, dated April 18, 2020;
3. Respondent’s affidavit, sworn on April 18, 2020;
4. Respondent’s affidavit of service, sworn on April 19, 2020;
5. Respondent’s draft order;
6. Applicant’s affidavit, dated April 24, 2020 (not sworn/affirmed);
7. Respondent’s reply affidavit, dated April 27, 2020 (not sworn/affirmed);
8. Respondent’s affidavit of service, dated April 27, 2020 (not sworn/affirmed);
9. Endorsement of Barnes J., dated January 27, 2017;
10. Endorsement of Van Melle J., dated February 6, 2017;
11. Endorsement of LeMay J., dated February 10, 2017;
12. Endorsement of Tzimas J., dated May 11, 2017;
13. Endorsement of Bloom J., dated June 6, 2017;
14. Endorsement of Tzimas J. dated August 4, 2017;
15. Endorsement of Petersen J., dated October 10, 2017;
16. Endorsement of Snowie J., dated November 17, 2017; and
17. Order of Trimble J., dated May 25, 2018.

[6] On April 28, 2020, the Respondent was represented by counsel, Mr. Sandhu. Before argument of the Respondent’s motion began, the Applicant affirmed her affidavit dated April 24, 2020 and the Respondent affirmed his reply affidavit dated April 27, 2020.

[7] After Mr. Sandhu made his submissions, the Applicant raised an issue – she alleged that Mr. Sandhu was in a conflict of interest. The Applicant alleged that Mr. Sandhu had previously given her advice in this matter.

[8] By my endorsement of April 28, 2020, I adjourned the Respondent’s motion to May 7, 2020. I also gave directions for the service and filing of affidavits for argument of the issue of the alleged conflict of interest.

[9] On May 7, 2020, the following additional materials were before me and, I have reviewed these as well:

1. Applicant’s affidavit, electronically served and filed May 1, 2020 (not sworn/or affirmed);
2. Affidavit of Mr. Sandhu, sworn on May 3, 2020; and
3. Respondent’s affidavit, dated May 5, 2020 (not sworn or affirmed);

[10] The Applicant and the Respondent each affirmed their additional affidavits before me on May 7, 2020.

[11] On May 6, 2020, the Applicant had also electronically served and filed a reply affidavit that was neither sworn nor affirmed. However, that reply affidavit could not be relied upon during argument. The reason for this is that when I asked the Applicant to affirm her reply affidavit, the Applicant realized that she had submitted the wrong version of her reply affidavit. The parties agreed that the Applicant could rely on two emails, both dated April 9, 2020 that would have been attached as exhibits to her reply affidavit had the correct version been served. It should be noted that these emails were already included in the Respondent’s affidavit, dated April 18, 2020.

[12] As Mr. Sandhu had filed an affidavit, it would have been irregular to permit him to make submissions on the issue of conflict of interest. He did not wish to make submissions on this issue. Therefore, the Respondent made submissions for the argument of the conflict of interest issue.

[13] Prior to argument of the conflict of interest issue, the Respondent and the Applicant agreed that if I determined that there was a conflict of interest, Mr. Sandhu would withdraw, and the Respondent would represent himself for the balance of argument of his motion (which would consist of the Applicant’s responding submissions and Respondent’s reply submissions). However, if I determined that there was no conflict of interest, then Mr. Sandhu would continue to represent the Respondent for the balance of argument of the Respondent’s motion.

[14] After hearing the Applicant and Respondent’s submission on the issue of conflict of interest, I ruled that I was not satisfied that the Applicant had established that Mr. Sandhu had a conflict of interest.

[15] Therefore, the Applicant made her submissions in response to the Respondent’s motion and Mr. Sandhu made brief reply submissions. I reserved my decision.

[16] These are my reasons for my ruling on the conflict of interest as well as my decision on the Respondent’s motion. Although, I am not satisfied that the Respondent had established that he had equal parenting time prior to March 30, 2020, I am satisfied that he was having more parenting time than what the Applicant alleged he was having and therefore, the Respondent shall have parenting time which shall include one overnight per week, one mid-week visit, and for special or religious occasions.

Background

[17] Given the current suspension of the SCJ’s regular court operation, I have no access to the Endorsement Record or the Continuing Record as I have no access to the court file. The parties were aware of that and were advised to submit a copy of any document, endorsement, or order that they intended to rely on. I must determine this issue based on the evidentiary record that is before me.

[18] A brief review of the background, based on the record before me, is required in order to put the submissions of the parties in context.

[19] The parties have two children: A.W.1, born […], 2013 (“A.W.1”), and A.W.2, born […], 2015 (“A.W.2”) (“the children”). A.W.1 is currently 6 years old and A.W.2 is currently 4 years old.

[20] The parties separated in October 2016.

[21] The Respondent also had a criminal matter. From the record before me, I cannot determine when he was charged or what the specific nature of charge or charges were. The Respondent’s father was also charged but again, I have not been provided with any details with respect to what he was charged with or when. I can infer, however, that the Respondent and his father’s criminal charges did relate to the Applicant.

Litigation Background

[22] From the court file number assigned to this matter, I am aware that the Application was issued sometime in 2016. According to the Respondent’s evidence, the Respondent started the litigation in December 2016.

[23] Based on the endorsements provided by the parties, there were numerous court appearances between January 2017 and November 2017. Many, if not all, of those appearances related to access issues. I shall summarize the appearances that the parties have provided endorsements for:

1. Barnes J., endorsement dated January 27, 2017 – Respondent’s motion was adjourned to February 10, 2017 and no finding of urgency was made. (The Applicant was served with the motion but did not appear by 1:00 p.m.).
2. Van Melle J., endorsement dated February 6, 2017 – Early case conference. The Respondent was offered access, without prejudice, pending disposition of his criminal matter. The parties are to set up supervised access. It was also endorsed that motions may proceed.
3. LeMay J., endorsement dated, February 10, 2017 – An Order on interim interim basis was made for the Respondent to have supervised access, with the following terms:
   1. Access to take place at a supervised access centre commencing as soon as possible for two (2) hours every Saturday or Sunday, as may be available.
   2. The Applicant and her counsel are to take all reasonable steps to facilitate such access.
   3. All costs of this access shall be shared equally.
   4. The CAS records are to be disclosed subject to the terms of the Schedule A attached to the letter to the Respondent from the CAS dated January 31, 2017.
   5. The question of access will be revisited once the CAS records are provided and are at least 4 access visits have occurred.
   6. The access for the next four weeks will be with the Respondent alone. The parties will revisit this after four weeks.
4. Tzimas J., endorsement dated, May 11, 2017 – The Applicant requested an adjournment of a motion for an expansion of the Respondent’s access. and the adjournment request was contested. The motion was adjourned to June 6, 2017 and was peremptory to the Applicant. The terms of the adjournment also included terms for the Respondent’s access with the children and were without prejudice pending argument of the motion on June 6, 2017. The terms were:
   1. The Respondent would have access with the children in accordance with the Applicant’s email of May 6, 2017 (note – neither party provided me with a copy of this email, so I do not know the contents of the email).
   2. The children were not to come into contact with the Respondent’s family.
   3. Unsupervised access was to take place in public places which could be indoors or outdoors.
   4. The Respondent was not permitted to bring the children to his home.
5. Bloom J., endorsement dated, June 6, 2017 – the Respondent’s motion for increased access was heard and an order was made granting the Respondent unsupervised access on the following terms:
   1. each Saturday from 10:00 a.m. to 2:00 p.m. with the Respondent’s brother transporting the children to and from the Applicant’s residence;
   2. each Sunday from 10:00 a.m. to 2:00 p.m. with the Respondent picking them up at the Brampton Supervised Access facility.
   3. The children are not to be brought by the Respondent to the home he shares with his parents, brother and sister-in-law during his access period.
   4. the Applicant shall provide a list and contact information of all professionals dealing with the children, including but not limited to the children’s school, teachers, doctors, dentist, persons involved with extra-curricular activities and child care.
   5. the Applicant shall on a monthly basis provide the Respondent by e-mail sent to the Respondent’s brother updates regarding the children’s health, education, and general well being. The Applicant was also ordered to provide immediate information by the most effective and lawful manner to the Respondent regarding any emergency health issues relating to the children.
   6. The access granted to the father is access for him alone.
6. Tzimas J., endorsement dated August 4, 2017 – Respondent’s motion to vary terms of Bloom J.’s order as well as other relief. The Applicant indicated that she wanted to bring a Cross-motion for issues that the parties had not had the benefit of a Case Conference and requested an adjournment until after a Case Conference is held. Tzimas J. declined the Applicant’s request for an adjournment and varied Bloom J.’s order as follows: a) On Saturdays and Sundays, the access exchange shall take place at the Supervised Access Services. On Saturday, access shall take place from 10:00 a.m. to 1:15 p.m. and on Sundays, from 10:00 a.m. to 2:45 p.m. b) When the Supervised Access Services is closed, then the Respondent is given permission to attend at the Applicant’s place of residence, which is an apartment building and the exchange shall occur in the lobby where there are cameras. This is consistent with the Respondent’s current Bail Conditions which allow for an exception on account of child access, pursuant to a Family Court Order. This is such an order. c) The six to eight hours of outstanding make-up access to be addressed after the CAS reports on its investigation, and if that report concludes that the children’s well-being will not be jeopardized if in addition to their father, they can have contact with their grandmother or their paternal aunts and uncles, the lost time will be made up at a 2:1 ratio. d) The Respondent shall have access time on all religious holidays, birthdays (the children’s birthdays), Father’s Day and Special occasions, to take place with the Respondent only as per Justice Bloom’s order. Such access will be for 4 hours. The parties shall work out the particular times. It is further understood that when the Supervised Access Service is open, the access will occur there. If that Service is not open, then the parties will follow the arrangements in place generally for access when the Centre is closed. This arrangement may be revisited after the parties receive the results of any CAS report or other investigation that would concern the children’s safety and well-being. e) Consistent with Justice Bloom’s Order the Applicant is encouraged to develop a template that speaks to eating, sleeping, health and well-being issues for the children that she sends out on the 30th of every month to the Respondent. f) Peel CAS is to provide disclosure in accordance with the terms included in Justice LeMay’s Order of Feb. 10, 2017 (Peel CAS has consented to this term). g) A Case Conference is scheduled for October 3 at 10 a.m.
7. Petersen J., endorsement dated October 10, 2017 – motion. The Respondent appeared and indicated that with the agreement of counsel for the Applicant, the parties were requesting that the motion be adjourned to October 17, 2017 as the parties were to meet to attempt to reach a resolution of the litigation on a final basis. If a resolution could not be reached, the motion would proceed on October 17, 2017. (Although not specifically stated, I infer that this was another motion brought by the Respondent with respect to access).
8. Snowie J., endorsement dated November 17, 2017 – case conference. The Respondent did not appear. His mother attended on his behalf and requested an adjournment which was not granted, and the case conference proceeded. The relevant terms of the order made at the case conference are:
   1. The Respondent was ordered to provide extensive disclosure.
   2. A Settlement Conference was scheduled to be held on January 12, 2018 at 10:00 a.m.
   3. The Respondent shall not bring any further motions until he has complied with this Disclosure Order.

[24] While not part of her order, Snowie J. endorsement also included the following: It appears that [the Respondent] is abusing “para D” of the Aug 4/17 order of Tzimas J. That access needs to be clearly defined & not so general ie exact dates & times. In my opinion this is not a case for general terms. Mother is trying to get ahead by returning to school. The older child is now in school & the younger child is in daycare. [Respondent] does not appear to be acting in the children’s best interests but rather “his own” only.

[25] It should be noted that Applicant had counsel who appeared for her on all the above-noted dates, except January 27, 2017 and October 10, 2017. The Respondent was self-represented on all the above-noted dates, except August 4, 2017. The counsel who appeared for the Respondent on August 4, 2017 was not Mr. Sandhu.

[26] As neither party provided a copy of the endorsement from October 3, 2017, I do not know if the case conference scheduled for that day proceeded and if it did, what was the outcome.

[27] It also appears that the settlement conference scheduled for January 12, 2018 did not proceed. According to the Applicant’s evidence, this settlement conference was adjourned at the request of the Respondent, but she does not state to when it was adjourned.

[28] In addition to the eight endorsements summarized above, I was also provided with a copy of the Order of Trimble J., dated May 25, 2018, which provided that “Both parties may contact and communicate with each other through meetings, WhatsApp, text, e-mail and any other means for reconciliation and resettlement purposes.”

Issue One – Is Mr. Sandhu in a conflict of interest?

The Applicant’s position

[29] The Applicant alleged that Mr. Sandhu has a conflict of interest. She raised this issue on April 28, 2020 after Mr. Sandhu had made his submissions on behalf of the Respondent. In fairness to the Applicant, it should be noted the Respondent sent an email on April 27, 2020 to inform the Applicant and the Court that he had retained Mr. Sandhu. The Applicant stated, and I accepted, that she only saw the email the morning that the motion was to be argued.

[30] The Applicant alleges that Mr. Sandhu has a conflict of interest because:

a) he has met with her; b) he has spoken by telephone with her; c) he witnessed a Reconciliation Agreement that was signed on February 9, 2019; and d) he did not confirm until April 2020 that he was representing the Respondent.

[31] The Applicant states that she met with Mr. Sandhu in November 2018; and on December 2, 2018, February 6, 2020, and February 8, 2020. The Respondent was also present on February 6, 2020.

[32] The Applicant states that Mr. Sandhu spoke with her by telephone on February 3, 8, and 10, 2020.

[33] She states that within a few days of the parties signing a Reconciliation Agreement on February 9, 2019, the reconciliation failed.

[34] She states that in February 2020, she contacted Mr. Sandhu. She alleges that she contacted him to “understand her legal rights because [the Respondent] had again started pressurising [her].”

[35] She asserts that Mr. Sandhu only provided confirmation in April 2020, through an exchange of emails, that he was the Respondent’s lawyer.

The Respondent’s position

[36] In response, the Respondent relies on Mr. Sandhu’s affidavit as well as his own to refute the alleged conflict of interest. To summarize,

a) The Respondent retained Mr. Sandhu on October 29, 2018. b) The Respondent and the Applicant negotiated the Reconciliation Agreement themselves. c) Mr. Sandhu did not prepare the Reconciliation Agreement that the parties signed on February 9, 2019. He only witnessed the Respondent’s signature. d) Mr. Sandhu has not provided legal advice to the Applicant. e) The Applicant was aware, prior to February 2020, that Mr. Sandhu was representing the Respondent.

Discussion

[37] It is the Applicant’s onus to establish that Mr. Sandhu has a conflict of interest. In my view, she has not met that onus.

[38] It is not disputed that Mr. Sandhu met with the Applicant on the dates that she has indicated. However, the Applicant’s evidence is that it was the Respondent who arranged the meetings of November 2018 and December 2, 2018.

[39] Mr. Sandhu acknowledges that he met with the Applicant on November 4, 2018, February 6, 2020 and February 8, 2020. However, he provides a different account of what transpired on those dates. He states that on November 4, 2018, when the Applicant came to his office, she brought an unsigned Reconciliation Agreement which had already been prepared. He states that he made it clear that he was not giving the Applicant legal advice.

[40] With respect to February 6, 2020, Mr. Sandhu deferred to the Respondent to indicate what transpired. The Respondent indicated that during this meeting, there was a discussion about precautions to take if the parties were to live together. According to him, the Applicant wanted to resume “a marriage like relationship” and his evidence is that Mr. Sandhu did not provide any legal advice to the Applicant during that meeting.

[41] With respect to February 8, 2020, Mr. Sandhu states that as he was leaving his office, the Applicant attended at his office, without an appointment, and forced her way into his office. He maintains that she knew she was speaking to him as the Respondent’s lawyer.

[42] With respect to the three telephone calls in February 2020, Mr. Sandhu does not dispute that he spoke with the Applicant by telephone. But he maintains that he spoke with her as the Respondent’s lawyer and did not give her legal advice.

[43] I accept Mr. Sandhu’s evidence that prior to April 2020, the Applicant knew that he was representing the Respondent and I accept that he has not given her legal advice. Mr. Sandhu is an officer of the court and he is bound by the Rules of Professional Conduct.

[44] I accept that Mr. Sandhu’s evidence that when the Applicant attended his office on November 4, 2018, she brought an unsigned Reconciliation Agreement. In his affidavit, Mr. Sandhu has included a copy of the front and back of that document as exhibits to his affidavit. On the back of the document, the Applicant has acknowledged the following:

1. I met Sandhu with my free will
2. Only question discussed was reconciliation and future of the relationship
3. I met alone you in your office
4. Mr. Sandhu gave me no legal advice. He recommended me to retain a independent lawyer instead [emphasis added]
5. Sandhu can review the reverse side of this paper
6. Will not be used against me in any proceedings

[45] The Applicant signed this acknowledgement and it is dated “Nov 4, 2018 2:49 p.m.”

[46] Mr. Sandhu does not dispute that he witnessed the Reconciliation Agreement, dated February 9, 2019. However, he clarifies that the parties came to his office after they had already negotiated and signed the document. The Respondent asked him to witness the document, Mr. Sandhu required the Respondent to sign the document again in front of him, and Mr. Sandhu only witnessed the Respondent’s signature. I accept Mr. Sandhu’s evidence.

[47] A review of the Reconciliation Agreement, dated February 9, 2019, shows that the Applicant and Respondent each it signed on February 9, 2019 at 4:20 p.m.

[48] The Respondent signed the document a second time, also on February 9, 2019 at 5:10 p.m. Mr. Sandhu has signed as a witness to the second signature of the Respondent and it is clearly written that Mr. Sandhu “Witnessed Mr. A. Walia’s signature only.”

[49] I also note that the content of the Reconciliation Agreement signed on February 9, 2019 contains some handwritten changes which are not included in the unsigned document that was shown to Mr. Sandhu on November 4, 2018.

[50] I also accept that the Applicant was aware prior to April 2020 that Mr. Sandhu represented the Respondent. Questioning of the Applicant was held on May 25, 2019 and the Applicant was assisted by an interpreter. Mr. Sandhu appeared on behalf of the Respondent and it was made clear that he represented the Respondent only, as set out in the following exchange, beginning on Page 3, line 29, Question 9 of the transcript:

9. Q. Okay. And you know my job here is to protect Mr. Walia’s interest and look after Mr. Walia’s interest only and only. A. Yes.
10. Q. And I actually told you this many times before as well? A. Yes.
11. Q. And I actually recommended you also have a lawyer present for today’s purpose? A. Like I said, yes, I’m working, but my financial position isn’t that strong where I can hire a counsel, it’s not that strong.
12. Q. Okay. So, but you have opportunity to speak to a lawyer? A. Not now, because now I don’t have a lawyer.
13. Q. Okay, so the reason I’m asking is this, no one actually forced you to come here? A. That’s right.
14. Q. And no one offer you anything, made any promise to come here? A. That’s right, that’s absolutely correct.
15. Q. So, if anyone gave you any promise, or gave you any guarantees for anything, or offer you anything, or threatened to say something, either you should discontinue this examination right now, or you can disregard any promise, any guarantees given by anyone. A. No such thing happened.

[51] Mr. Sandhu also confirmed that the Applicant had the right to question the Respondent, as set out in the exchange, starting at page 66, Line 1 of the transcript:

…the record I will say – I’m not saying the family questioning is done. The same way you are allowed to question Mr. Walia. INTERPRETER: I’m sorry, Counsel? MR. SANDHU: 264. Q. The same way her right to question Mr. Anil Walia – Ashu Walia. If you have that wish, you retain another lawyer and then you let me know and you can do the same thing. So this questioning is now being adjourned. A. Okay. 265. Q. So, you have any questions? A. No. MR. SANDHU: Thanks for coming.

[52] The Applicant also argues that Mr. Sandhu only confirmed by an email on April 9, 2020 that he was representing the Respondent in this family law matter and therefore asks me to accept that when she contacted Mr. Sandhu in February 2020, she did not know he was representing the Respondent.

[53] The Applicant relies on an email she sent to Mr. Sandhu on April 9, 2020 at 11:24 a.m. and his reply of that same date, sent at 11:42 a.m. These two emails are part of an email string which appears to have started with an email sent on April 5, 2020 at 1:01 a.m. from Mr. Sandhu to the Applicant. I do not propose to reproduce content of all the emails, but I shall highlight what I find to be relevant for the issue of the alleged conflict of interest (these emails are attached as Exhibit H to the Respondent’s Affidavit, dated April 18, 2020):

1. Email from Mr. Sandhu to the Applicant (April 5, 2020, 1:01 a.m.) – Mr. Sandhu writes, “I understand from my client, Asutosh Walia, that there hare some issues coming up related to children’s access.” Later in this the email, Mr. Sandhu again refers to the Respondent as “my client.”
2. Email from the Applicant to Mr. Sandhu (April 9, 2020, 11:24 a.m.) – at the second paragraph of the email, the Applicant writes: I am aware that Asutosh is your client for Criminal proceedings. Could you please confirm if you are representing Asutosh Walia for the Family case also.
3. Email from Mr. Sandhu to the Applicant (April 9, 2020, 11:43 a.m.) – Mr. Sandhu writes: Yes, I am counsel for his family law matter as well. I believe a notice of change in rep was served on Ms. Deepa Singh.
4. Email from the Applicant to Mr. Sandhu (April 9, 2020, 3:27 p.m.) – the Applicant writes: Thanks for the update. Ms. Deepa Singh is not my Councel [sic] anymore. Kindly send all communication to me going forward.
5. Email from Mr. Sandhu to the Applicant (April 9, 2020, 3:35 p.m.) – Mr. Sandhu writes: I suggest you directly work out a resolution of all the issues with my client. … I will propose to you and Mr. Walia that we have a settlement meeting. If you can bring a lawyer that would be great. … I think for one meeting you better have a lawyer so that a final agreement can be signed.
6. Email from the Applicant to Mr. Sandhu (April 13, 2020, 1:28 p.m.) – The Applicant writes: I support your advice of settling all the issues amicably out of Court. … You can please arrange a meeting once Lockdown is lifted.
7. Email from Mr. Sandhu to the Applicant (April 13, 2020, 1:42 p.m.) – Mr. Sandhu writes: … I recommend you retain a lawyer. You have now a good job and I think if you retain a lawyer it will be better for you instead of end up [sic] in court and pay legal costs for my motion. If you do not intend to retain a lawyer, we can set up a settlement meeting. But how would you know to what you are entitled and what no[t] and negotiate?

[54] No where in the emails exchanged in April 2020 does the Applicant raise any concern that Mr. Sandhu may be in a conflict.

[55] I find that the Applicant knew as of November 4, 2018 that Mr. Sandhu was the Respondent’s lawyer. This was confirmed on February 9, 2019 when Mr. Sandhu witnessed the Respondent’s signature on the Reconciliation Agreement. Further, at the questioning held in May 2019, Mr. Sandhu made it clear that he only represented the Respondent and the Respondent’s interest. I find that when the Applicant contacted Mr. Sandhu in February 2020, she knew that he was representing the Respondent. By suggesting otherwise, the Applicant is being disingenuous.

[56] For the reasons outlined above, I am not satisfied that the Applicant has established that Mr. Sandhu has a conflict of interest.

[57] As I was not satisfied that the Applicant had demonstrated that Mr. Sandhu was in a conflict of interest, argument of Respondent’s motion was completed, and I reserved my decision.

Issue Two – Should the Respondent’s request for equal parenting time be granted?

The Respondent’s Position

[58] The Respondent indicates that since their separation in October 2016, the parties have been reconciling and did in fact, reconcile. He asserts that they reconciled in October 2017.

[59] On October 10, 2017, the parties signed Minutes of Settlement (MOS) which expanded his time with the children and addressed the parties’ reconciliation. The terms of the MOS provided that, and I summarize,

a) Commencing October 14, 2017, the Respondent would have the children in his care from 8:45 a.m. to 5:30 p.m. and he would pick up and drop off the children from the Applicant’s residence. b) Starting Sunday October 15, 2017, the Respondent would pick up the children at 10:00 a.m., take them to his residence, bring the children to the Applicant’s residence at 12:30 p.m. Then, at 12:30 p.m., the Applicant, Respondent and the children go out for an outing which would depend on what the children wished to do and there was no time limit for the outing. c) Both parties would enroll in couples counselling. d) Starting on October 25, 2017 and on alternate weeks, the children would have one overnight visit with the Respondent. The children would be picked up from Applicant’s at 6:00 p.m., and the next morning the Respondent would drop A.W.1 at school and A.W.2 at day care. e) The parties would have a further meeting to review the progress made and determine the next steps. f) Their agreement as set out in the MOS was in compliance with bail amendment dated September 23, 2017. g) The Motion scheduled for October 17, 2017 would not proceed. h) Both parties may communicate through WhatsApp, text/e-mails, phone or by any other means.

[60] He also asserts that since October 2017, he has been having liberal and equal access. He provided a list of dates which he says shows when the children were in his care. The list provides information from October 2019 to March 2020. He also indicates that the children were with him for three weeks in August 2019. To summarize the list, the Respondent states that the children were in his care as follows: in October 2019 – 11 days, including 8 overnights; in November 2019 – 14 days, including 8 overnights; December 2019 – 16 days, including 8 overnights; January 2020 – 11 days, including six overnights; February 2020 – 25 days, including 23 overnights; and March 2020 – 17 days, including, 11 overnights.

[61] He also provided a chart that he prepared summarizing the number of access days he had with the children, however, the chart only includes information between October 2019 and January 2020. A summary of the amount of time the Respondent says he had the children in his care is as follows:

• October 4, 5, 6, 7, 8, 12, 13, 14, 17, 19, 20, 25, 26, 27, and 31, 2019 (15 days, including overnights on October 4, 6, and 7);
• November 2019 – 1, 2, 3, 4, 9,16,17, 23, 24, 26, 27, 29, and 30 (13 days and the Respondent states that he was in Orlando for 8 days during this month);
• December 1, 2, 3, 7, 8,14, 15, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30 and 31, 2019 (18 days); and
• January 1, 3, 4, 5, 8, 11, 12, 18,19, 24, 25, 26, 28, 29, and 31, 2020 (15 days).

[62] As set out above, there are some differences in the information provided by the Respondent in his list and in his chart.

[63] He says that the parties’ reconciliation ended on March 30, 2020 and since that time, the Applicant has restricted his access to Saturdays for 8 hours He alleges that the Applicant has also threatened to call the police as a means of putting pressure on him to reduce his access.

[64] The Respondent also alleges that the criminal matter against him was based on false allegations and the Applicant’s motivation for making these false allegations was to have the Respondent and his father arrested so that she could get a house from the Respondent’s father. The Respondent alleges that the criminal matter was the main barrier to him spending more time with the children. The criminal charges were withdrawn on January 29, 2020. The Respondent further alleges that when criminal charges were dropped, the Applicant wanted him to buy a million-dollar home and move in with her. He also alleges that when he told the Applicant that he would not be able to do so, “[t]his enraged her and she stopped the liberal and equal access.”

[65] The Respondent also alleges that the Applicant is misleading the court with respect to how much time the Respondent was spending with the children, and his alleged non compliance with Snowie J.’s order. He states that he complied with the disclosure order and that on December 16, 2017, disclosure was delivered to Applicant. He has included an affidavit of service, sworn by Rita Walia, on December 18, 2017. According to this affidavit of service, Rita Walia, who I am told is the Respondent’s mother, delivered a Form 14A: Affidavit (general) dated December 16, 2017 along with enclosures 1 to 4 to 7820 Mclaughlin Rd, Brampton, ON L6V 4W3. The Respondent says that this is the address of the Applicant’s then lawyer.

[66] Based on the record before me, I am unable to determine if disclosure was delivered or not. I do not have access to the court file and therefore cannot look at the affidavit, dated December 16, 2017.

[67] The Respondent maintains that until March 30, 2020, he had equal parenting time with the children.

The Applicant’s Position

[68] The Applicant strongly denies that the Respondent has had equal sharing time with the children. She states that since August 2017, the Respondent’s time with the children has been in accordance with the Order of Tzimas J., dated August 4, 2017; that is, eight hours each weekend and four hours for the children’s birthday, special occasions, religious holidays and Father’s Day.

[69] The Applicant states that in February 2020, the Respondent started to pick up and drop off the children whenever he wanted to, including having the children overnight. She states that as a result, both children missed many days of school in February and March 2020. She alleges that when she would object to this, the Respondent threatened to bring a motion.

[70] The Applicant’s evidence is that she has been flexible in providing time for additional access if requested by the Respondent so long as the children’s routine is not interrupted.

[71] The Applicant states the Respondent has not reported the time he had with the children accurately. She alleges that in his calculations, the Applicant has included days when he did not see the children at all or when he saw the children for 5 to 10 minutes at the Applicant’s residence or in a public place (for example, at the temple or a grocery store).

[72] The Applicant provided her own chart outlining the when she said the children were in the Respondent’s care between October 2019 and January 2020. To summarize, the Applicant states that the Respondent had the children in his care as follows, but not necessarily for a full day:

• October 4, 5, 6, 7, 8, 12, 19, 26, 27, and 31, 2019 (10 days; October 4, 8, 27, and 31 were overnight);
• November 2, 4, 9, 16, 23, 26, 27, 29, and 30, 2019 (9 days; November 29 was overnight);
• December 2, 3, 7, 14, 20, 21, 24, 25, 27, and 28, 2019 (10 days; December 20, 24, and 27 were overnight);
• January 3, 4, 11, 12, 18, 24, 25, and 28, 2020 (8 days; January 3, 24, and 28 were overnight)

[73] She does not dispute that the children were in the Respondent’s care from March 18 to March 21, 2020. This was during their March Break.

[74] The Applicant also stated that in April 2020, the Respondent had parenting time from April 10 to April 11; and from April 18 to April 19, 2020.

[75] The Applicant’s evidence is that since April 4, 2020, there has not been an issue with the Respondent picking up the children whenever he wants and that the Respondent’s time with the children has been in accordance with Tzimas J.’s order of August 14, 2017.

[76] The Applicant states that when she has agreed that the Respondent have overnights, she has done so out of compassion and to try to prevent things from escalating, as she alleged that the Respondent is putting pressure on her.

Discussion

[77] It is the Respondent’s onus to establish that he has been having equal parenting time.

[78] The current order for access is was made by Tzimas J. on August 4, 2017. It does not provide for the Respondent to have overnight visits.

[79] I have serious concerns about the credibility of both parties. I must take a cautious approach.

[80] On one hand the Respondent maintains that he has had equal parenting time since October 2017 when the parties signed MOS. However, he also asserts that his criminal charges were the main barrier to him have more time with the children. If his version of his parenting time were to be accepted, this assertion would contradict his own evidence of how much time he was spending with the children, as his criminal matter ended on January 29, 2020. He is asking to court to accept that he had equal parenting time for many months prior to January 29, 2020.

[81] At time the October 2017 MOS signed, Applicant was represented by counsel and Respondent was self-represented. There was no Order made pursuant to these MOS.

[82] However, I note that on November 17, 2017, the Applicant’s then lawyer sent the following message to the Respondent: The ‘Minutes of Settlement’ were drafted outside court with a view to possible reconciliation between you and my client; as reconciliation efforts have failed the Minutes have become infructuous and have no longer any meaning. Credence needs to be given to both the court orders of August 4, 2017 and November 17, 2017.

[83] I am not satisfied that the parties were in fact reconciled for as long as the Respondent says they were. As referenced by the message of November 17, 2017, the Applicant was no longer prepared to continue with the MOS dated October 17, 2017. Further, the Reconciliation Agreement was only signed in February 2019. I accept the Applicant’s evidence that the reconciliation of February 2019 did not last. If the reconciliation had lasted until March 30, 2020 as suggested by the Respondent, there would have been no need for questioning to take place in May 2019.

[84] I am not satisfied that the evidentiary record before me supports the Respondent’s position that he has been having equal parenting time with the children.

[85] However, I am satisfied that he has been having more parenting time than what was ordered on August 4, 2017 by Justice Tzimas. The Applicant has acknowledged this and has acknowledged that it has included overnight access, as recently as April 18, 2020. There is no evidence before me to suggest that the Applicant has any concerns with the Respondent’s care of the children when they are with him.

[86] The Applicant asserts that it is disruptive to the children for the Respondent to pick the children up whenever he wants to. She asserts that she tries to placate the Respondent so she does not object when he keeps the children longer than he should or picks them up without advance notice. She alleges that he is using the court proceedings to put pressure on her to resolve all the issues in their litigation. The truth of this allegation cannot be determined in this motion.

[87] I agree however, that for the children’s best interests, there needs to be a schedule in place for the Respondent’s parenting time. Accordingly, the Respondent’s parenting time shall include one overnight per week, one mid-week visit per week, as well as time on special occasions and religious holidays. The details of the Respondent’s parenting time are specified in my order below.

[88] The record before demonstrates that these parties are unable to consistently agree on when they agreed or disagreed on what has transpired. They cannot even agree on the dates of when the Respondent had the children in his care.

[89] Further, in my view, they have demonstrated that they have been somewhat selective on when they follow court orders. I remind the parties the courts orders are not optional; they must be followed. I emphasize that unless specifically stated in the terms of my Order below, the parties do not have discretion to alter any aspect of my Order.

[90] In their affidavits, both parties referred to the Respondent having stopped paying child support in March 2020. The Respondent says he had been voluntarily paying child support up to then. None of the endorsements that I have been provided address child support. Neither party requested any order with respect to child support and that is not an issue to be determined on this motion. I remind the parties that child support is the right of the children and by ceasing to make child support payments, it is the children who will be deprived.

[91] I strongly encourage the Applicant to retain counsel to assist her in this matter.

[92] In their affidavits for this motion, both parties included in their materials information pertaining to discussions to resolve this motion. As I indicated to the parties and counsel during argument of the motion, it was not appropriate for that information to have been included in the motion materials and I have not taken that information into consideration in making my decision.

[93] With respect to costs, the Applicant was not successful in demonstrating that Mr. Sandhu had a conflict of interest. The Respondent was not successful in his request for equal parenting time. I therefore strongly encourage the parties to resolve the issue of costs. If they cannot, however, then I will receive written costs submissions as outlined below.

Order

[94] For the reasons outlined above, I make the following Temporary Order:

1. The Order of Bloom J. dated June 6, 2017, and the Order of Tzimas J. dated August 4, 2017 are varied.
2. The Respondent, Asutosh Walia, shall have parenting time with the children, A.W.1, born […], 2013 and A.W.2, born […], 2015 (“the children”) from Saturday May 16, 2020 at 10:00 a.m. to Sunday May 17, 2020 at 6:00 p.m. The Respondent, Asutosh Walia, shall pick up and drop off the children at the residence of the Applicant, Supreet Walia.
3. Commencing Friday, May 22, 2020, the Respondent, Asutosh Walia, shall have parenting time with the children from Fridays to Saturdays. The Respondent shall pick up the children from the Applicant’s home on Fridays at 6:00 p.m. and shall drop the children off at the Applicant’s home on Saturdays at 7:00 p.m.
4. Commencing Wednesday, May 20, 2020, the Respondent shall have parenting time on Wednesdays, from 4:00 p.m. to 8:00 p.m. The Respondent shall pick up and drop off the children from the Applicant’s home.
5. The Respondent shall have parenting time of up to 4 hours on the children’s birthdays, the Respondent’s birthday, Father’s Day, and other special occasions and religious holidays. One week in advance of each event, the parties shall agree in writing the specific start and end time for the Respondent’s parenting time and they shall take into consideration the children’s routine and any other activities that the children may be involved in.
6. If the parties cannot agree on the issue of costs, then the parties shall serve and file written submissions as set out below: i. on or before June 5, 2020, the Respondent shall serve and file written costs submissions of no more than 3 pages, double-spaced in 12-point font. ii. on or before June 26, 2020, the Applicant shall serve and file written costs submission of no more than 3 pages, double-spaced in 12-point font. iii. There shall be no reply submissions without leave of the court. iv. The cost submissions shall be filed by email to my judicial assistant. The email address is: sherry.mchady@ontario.ca. v. The page length set out above does not include Bills of Costs, any authorities that the parties wish to rely upon, and if applicable, Offers to Settle.
7. Within three weeks of the resumption of the Superior Court of Justice’s regular operations, the parties shall file in the Court File all documents that were electronically filed for this motion and shall pay the applicable filing fees.
8. This Order takes effect from the date of this endorsement, and without the necessity of the Order being issued and entered.

Kumaranayake J. DATE: May 15, 2020