Balkissoon v. Balkissoon , 2020 ONSC 4775

COURT FILE NO.: FS-19-248-00

DATE: 2020 08 10

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Eddie R. Balkissoon Applicant

AND: Desiree R. Balkissoon Respondent

BEFORE: Bloom, J.

COUNSEL: Leah Simeone, counsel for the Applicant

Desiree R. Balkissoon, self-represented

HEARD: August 7, 2020

E N D O R S E M E N T

1The Applicant brought a motion to seek removal from my order of June 15, 2020 of the paragraph 5 restriction on the child being with the life partner of the Applicant.

2I am addressing two points which are necessary to deal with the motion: (1) the urgency of the motion; (2) the issue of the variation of my order.

3The Applicant tendered in evidence his affidavit sworn July 28, 2020. The Respondent tendered no evidence; I considered her materials as argument.

4The Applicant seeks to vary my order on the ground that he and his life partner are now about to set up a household, including also the twelve-year-old daughter of the partner. He has had a relationship with his life partner for one year and seven months. The intention is to move into a condominium unit where overnight access for the Applicant would take place with the child in question, Elena Marieve Balkissoon born July 22, 2010. She would share a bedroom with the daughter of the Applicant’s partner; each would have a separate bed, and a folding screen would provide privacy to each girl. Further, a transition period for Elena would familiarize her with the partner and her daughter, before full overnight access at the condominium would begin in October of this year.

5I find that Elena’s well-being justifies the urgency of this motion in accordance with the applicable Provincial Notice to the Profession from this court. Her relationship with her father is a core issue relating to her well-being.

6The principles applicable to variation of my earlier order are set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. The Moving Party must satisfy me first that there has been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the child’s needs; that the change has materially affected the child; and that the change was unforeseen or could not have been reasonably contemplated by the judge who made the initial order. If that standard is met, the motions judge is required to embark on a fresh assessment of what is in the child’s best interests in all of the circumstances, both old and new.

7In my view, the Applicant has met the threshold standard, and I must consider what is now in Elena’s best interests. I am satisfied that the threshold standard has been met, because the Applicant is about to set up a new household with a woman and her daughter, circumstances which materially affect Elena and her father’s ability to satisfy her needs. Those circumstances were specifically not before me when I made the earlier order; the setting up of a new household was not envisaged at that time on the facts before me.

8Now I must consider Elena’s best interests, not those of parents. It is in her best interests to have maximum contact with her father; that contact would not be possible without allowing the change in my order sought by the Applicant. Accordingly, I grant an order varying my order of June 15, 2020 as follows: (1) in paragraph 5 the words “not be in the presence of any life partner of the Applicant” are deleted; (2) there shall be added to the order of June 15, 2020 the following paragraph 5A “ The Applicant is about to create a new household with his life partner, Preeya Mahadeo, and her daughter in a condominium unit where Elena is to share on overnight access a bedroom with Ms. Mahadeo’s daughter; each child will have her own bed and a folding screen will be available to separate the two halves of the bedroom; the Applicant will be providing Elena in advance of full overnight access at the condominium which will commence in October of 2020, a transition period for her to get to know Ms. Mahadeo and her daughter.”

9I shall receive costs submissions in writing limited to 3 pages, excluding a bill of costs. The Applicant is serve and file his submissions within fourteen days of release of this endorsement by one e-mail to my assistant, Sara Stafford, at Sara.Stafford@ontario.ca and the Respondent. The Respondent is to serve and file her submissions by one e-mail to Ms. Stafford and the Applicant within fourteen days from service of the Applicant’s submissions. There shall be no reply.

Bloom, J.