Superior Court of Justice
OSHAWA COURT FILE NO.: FC-16-1262
DATE: 20200908
ONTARIO
BETWEEN:
Mandeep Kaur Pooni
Applicant
– and –
Inderjit Singh Sandhu
Respondent
COUNSEL:
Ron Shulman, for the Applicant
David H. Nuri, for the Respondent
HEARD: August 31, 2020
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] The applicant mother brings this urgent motion for a temporary Order to suspend the expansion of the respondent father’s parenting time set out in the Final Order of Rowsell J. dated October 27, 2017, pending the conclusion of the trial on the applicant’s Motion to Change and the decision on that motion.
Facts
[2] Following their separation, the parties were involved in eighteen months of litigation that was resolved on consent by the Final Order of Rowsell J. dated October 27, 2017 (the Final Order).
[3] The terms of the Final Order relevant to this motion are (summarized):
(a) The applicant mother and respondent father were given joint custody of the child of the marriage, date of birth November 12, 2015. The applicant was given primary residence of the child.
(b) The parties were required to consult with each other about major decisions affecting the child, including education.
(c) In the event of a dispute between the parties, final decision making authority was given to the mother “subject to the Respondent’s right to bring the matter before the Court, following the dispute resolution process” set out in the Order.
(d) Day to day decisions affecting the child shall be made by the party who is exercising their parenting time.
(e) Commencing October 30, 2017, the respondent’s parenting time was based on an alternate week schedule:
Week 1: Friday at 6:00 p.m. to Monday at 6:00 p.m. Wednesday at 6:00 p.m. to Friday at 6:00 p.m.
Week 2: Monday at 10:00 a.m. to Monday at 6:00 p.m. Friday at 6:00 p.m. to Monday at 6:00 p.m.
(f) Starting when the child goes to Junior Kindergarten (September 2019) pick up shall be at the end of school and drop off shall be at the start of school.
(g) Commencing September 1, 2020, when the child is expected to start Senior Kindergarten, “the parenting schedule shall be altered to reflect his new school arrangement”, and the Respondent’s parenting time would be changed to Monday pick-up from school and Tuesday return to school at Week 2.
(h) Neither party was permitted to relocate outside of the Greater Toronto Area (GTA) without prior written consent of the other parent. Any proposed change in residence required 30 days notice to the other party.
[4] The applicant concluded that the joint custody arrangement was not working, and commenced a Motion to Change the Final Order at the end of 2018. The applicant’s Motion to Change also sought to terminate the September 1, 2020 change in parenting time on the ground that the father has relocated to a residence that is 55 km from the child’s school. The trial was initially scheduled to proceed in November 2019, then adjourned to February 2020, and adjourned again to May 2020. The trial could not proceed as a result of the suspension of court operations due to the COVID-19 pandemic.
[5] As a result of this delay, the applicant commenced this urgent motion to suspend the “expansion” of the respondent’s parenting time that was to begin September 1, 2020 when the child was to begin Senior Kindergarten. As of September 1, 2020, the parenting schedule changes so that the Monday 10:00 a.m. to 6:00 p.m. parenting time is replaced by an overnight during the school week: Monday pick-up from school until Tuesday return to school.
[6] Since the trial for the Motion to Change could not be heard prior to September 1, 2020, the applicant was granted leave to proceed with this motion on an urgent basis.
Applicant’s position
[7] At the time of the Final Order, both parties resided in Markham, Ontario, approximately 2 km. apart. Since that time both parties have changed their residence. The applicant moved to Ajax, Ontario in January 2019. She lives in a home that is across the street from the child’s school, and about a 30 minute (25 km.) commute from where the respondent lived in Markham.
[8] In May 2019 the respondent moved to Sunderland, Ontario, and now lives in a home that is 55 km north of the child’s school in Ajax. The applicant alleges that the home is approximately a one-hour commute to the child’s school, although the Google Map attached to her affidavit indicates that it is a 48 minute drive.
[9] The applicant alleges that it is unfair for the child to have to commute approximately 50 minutes each way on Monday after school and on Tuesday morning to school, when he could just walk across the road if he stayed with her. The child will have to wake up “earlier than necessary” in order to get to school on time. This will “throw off his routine and his sleep schedule”. She alleges that this change was never contemplated when the Final Order was made, and constitutes a material change in circumstances that requires a change to the parenting schedule set out in the Final Order.
[10] The applicant has indicated that she does not intend to send the child to school in September because of the COVID-19 pandemic, and she has opted instead for virtual/on-line learning. She acknowledges that the “impact of the lengthy commute will not be as apparent”, but she is still concerned that the respondent will not provide the applicant with the proper assistance so that he can keep up with his homework assignments. She complains that last year the respondent permitted the child (who so far has only completed junior kindergarten) to take naps and play after school, allowing the child to fall behind in his homework. She alleges that the child “requires a more stable and consistent residency arrangement for his overall health and well being, and educational growth.”
[11] Finally, the applicant argues that the status quo should be maintained pending her Motion to Change. She argues that the status quo is not the parenting schedule set out in the Final Order, but only the pre-September 2020 parenting schedule that was in place when she brought her motion. She argues that the onus is on the respondent to show that a change to the status quo is in the best interests of the child.
Position of the Respondent
[12] The respondent argues that the parenting schedule change is not really an “expansion” of his parenting time, but just a substitution to recognize that the child will be in school on Monday during the day. Even before the schedule changed, the respondent picked the child up on Monday at 10:00 a.m., and dropped him off on Monday at 6:00 p.m., which still required two commutes. The respondent indicates that the morning drive to pick up the child does not usually take more than 40 minutes.
[13] He points out that the applicant’s position is that the 30 minute commute that resulted from her move from Markham to Ajax was acceptable, but the 40 -50 minute commute from Sunderland to Ajax will harm the child. The applicant has not provided any expert evidence to support her allegation that even a 50 minute commute from and to school twice a week will be harmful to the child.
[14] The Final Order specifically permitted the parties to move anywhere in the GTA. While not defined in the Final Order, the “Greater Toronto Area” is commonly used to refer to the area comprised of the City of Toronto and the regional municipalities of Durham, Halton, Peel, and York. Sunderland is located in Brock Township, in the Regional Municipality of Durham. Ajax is also located in the Regional Municipality of Durham. Both Ajax and Sunderland are within the borders of the GTA.
[15] The respondent’s position is that the Final Order is the status quo, and the onus is on the applicant to provide evidence that the court should depart from that final order pending the trial for the Motion to Change.
Analysis
[16] The Court has jurisdiction to alter custody or access on an interim basis pending trial in a motion to change a final order. In Bors v. Bors, 2019 ONSC 765, Coroza J. (as he then was) stated, at paras. 50 - 51:
There is no dispute that a court may alter custody or access on an interim motion pending trial in a motion to change a final order.
While I agree…that the general rule is that the status quo should be maintained, if there has been a material change in circumstance since the making of the final order, then custody and access can be changed on an interim basis: see Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), r. 29. (See: Papp v. Papp (1969), 1969 CanLII 219 (ONCA), [1970] 1 O.R. 331 (C.A.) and McEachern v. McEachern (1994), 1994 CanLII 7379 (ONSC), 5 RFL (4th) 115 (Ont. C.J. (Gen. Div.)), at para. 9).
[17] See also: Caparelli v. Caparelli, 2009 CanLII 73655 (ONSC), at para. 12:
Pursuant to s. 17(5) of the Divorce Act, 1985 c. 3 (2nd Supp.) and r. 15(28) of the Family Law Rules, O. Reg. 114/99, the court may grant a temporary order to vary a final order where it is satisfied that there has been a change in the condition, needs and/or circumstances of the child taking into consideration the best interests of the child or children. The change must be material rather than of a momentary kind. This is to discourage spurious applications but its purpose does not create so onerous a presumption or burden in favour of the original order that the child’s best interests are sacrificed as a consequence: see Montgomery v. Montgomery, 1992 CanLII 8642 (ONCA), [1992] O.J. No. 2299 (C.A.).
[18] For a change to be “material” within the meaning of s. 17 of the Divorce Act, it must be a change of circumstances that, “had they existed at the time…would likely have resulted in a different order” (Hickey v. Princ, 2015 ONSC 5596, 127 O.R. (3d) 356, at para. 49). The same analysis applies to custody and access cases brought under s. 29 of the Children’s Law Reform Act: Forrester v. Dennis, 2016 ONCA 214, at para. 8. For a change in circumstances to be material it must relate to the circumstances giving rise to the original order.
[19] The “status quo” is the entire final order, including any changes or transitions set out in that order. In this case, the status quo is that the father’s access with the child will change commencing September 1, 2020. The onus is on the party seeking to temporarily stay or suspend the final order to show that there has been a material change in circumstance since the making of the final order that would justify an interim stay of that motion. The court must assume the correctness of the order and consider only the change in circumstances since the order was issued: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 at para. 11.
[20] As Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7:
There is a presumption that all court orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child…
[21] In my view, the evidence provided by the mother on this motion fails to make the case that there has been any material change in circumstances, or that the 50 minute commute from Sunderland to Ajax is contrary to the child’s best interests.
[22] The Final Order expressly contemplated that the parties were free to relocate within the GTA. This is a common term in separation agreements, and both parties have relocated from Markham, Ontario – a city in the Regional Municipality of York – to towns within the Regional Municipality of Durham. One hour commutes are not uncommon within the GTA. Indeed, one hour commutes are not uncommon within the City of Toronto.
[23] In Gordon v. Goertz, the Supreme Court of Canada stated, at para. 15:
If a future move by the custodial parent was considered and not disallowed by the order sought to be varied, the access parent may be barred from bringing an application for variation on that ground alone. The same reasoning applies to a court-sanctioned separation agreement which contemplates a future move. In such cases, the application for variation amounts to an appeal of the original order.
[24] While a 40 to 50-minute commute may not be ideal, there is no expert evidence that a 40 to 50 minute commute to and from school twice a week with his father will be harmful to a 5 year old child. There is no expert evidence that such a commute will in any way impair his success in senior kindergarten, regardless of whether he is registered for in-person teaching or on-line/virtual teaching. There is no expert evidence that a 50 minute commute is materially different for a child than a 30 minute commute.
[25] Nor am I prepared to suspend the Final Order because the respondent father has a history of permitting his four-year-old son to nap or play when he comes home from junior kindergarten.
Conclusion
[26] For the foregoing reasons, the applicant’s motion for a temporary Order to suspend the expansion of the respondent father’s parenting time set out in the Final Order of Rowsell J. dated October 27, 2017, is dismissed.
[27] The respondent is presumptively entitled to costs: Family Law Rule 24 (1). If the parties are not able to agree on costs, the respondent may serve and file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision, and the applicant may serve and file responding submissions on the same terms within a further 15 days.
Justice R.E. Charney
Released: September 8, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mandeep Kaur Pooni
Applicant
– and –
Inderjit Singh Sandhu
Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: September 8, 2020