COURT FILE NO.: FS-19-96242
DATE: 2020 09 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KULWINDER KAUR DHILLON
Applicant
- and -
KARANPAL SINGH DHILLON
Respondent
Nida Hussain, for the Applicant
Will Abbott, for the Respondent
HEARD September 10, 2020, via videoconference
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] There are two motions before me, one brought by each of the parties.
[2] The Applicant Mother, Kulwinder Kaur Dhillon (“the Mother”), seeks the following orders:
a) On an interim and without prejudice basis, that the two children of the marriage reside primarily with the Mother, with access to the Respondent Father Karanpal Singh Dhillon (“the Father”) on alternate weekends from Friday after school or daycare until the following Monday when school or daycare starts;
b) That the Father provide all necessary documentation required to value the Mother’s pension;
c) That the Father provide proof that he has discharged a charge registered against the property municipally located at 1045 North Service Road, in Stoney Creek (“1045 North Service”);
d) That the parties not speak to each other during the exchanges;
e) That the parties only communicate via e-mail, and regarding the children only;
f) That she be able to unilaterally decide what daycare the children will attend and what extracurricular activities the children shall participate in during her parenting time, the Father’s financial contribution not being unreasonably withheld;
g) That she be permitted to file her Amended Application;
h) That any costs award be paid from the Father’s share of the net proceeds of sale of the matrimonial home, namely 8518 Heritage Road, Brampton (“the matrimonial home”); and
i) Her costs.
[3] The Father seeks the following:
a) An order that the children reside with both the parties, pursuant to a shared parenting arrangement rotating on a 2-2-3 basis;
b) That they share holiday time equally with the children;
c) That the parties have joint custody of the children;
d) That neither party shall incur section 7 expenses without the other’s written consent in advance, not to unreasonably withheld;
e) That the police enforce access and exchanges, if necessary; and
f) His costs.
[4] During the course of the motion, a number of items were resolved on consent. This included the Father providing the documentation necessary to value the Mother’s pension, that the Father consents to the late filing of the Amended Application, that the parties only communicate through www.ourfamilywizard.com, and that a request be made that the Office of the Children’s Lawyer become involved. The Father also advised that he would not be pursuing the police enforcement clause, and both agree that any costs can be paid from the net proceeds of the matrimonial home.
[5] Accordingly, the remaining issues must be decided:
a) Interim parenting schedule for the children, including day care;
b) Enrollment in extra-curricular activities and payment of same; and
c) Discharge of $150,000 encumbrance of 1045 North Service.
Background
[6] The parties were married on March 3, 2012. The parties separated and reconciled on a number of occasions, and finally separated on August 22, 2019.
[7] There are two children of the marriage, namely Milania Johan Dhillon, born February 9, 2015 (“Milania”) and Milena Johal Dhillon, born September 14, 2019 (“Milena”), (collectively “the children”).
[8] The parties disagree on who was the primary caregiver to the children during the marriage and afterwards. The Mother maintains that they separated after only a few months of marriage, in or around August 2012, but then reconciled one month later. She maintains they separated again in August 2014. Six months into this separation, Milania was born. The parties remained separated until October 2016, when they reconciled. At that time, Milania was between 1.5 and 2 years old. The parties remained together for almost three years before they separated. Milena was born less than a month after this final separation. The Father agrees that there were a number of separations during the marriage, but he has not provided any evidence with respect to the specific dates of the separations or the frequency of his access to the children during these separations.
[9] During the separations, the children primarily resided with the Mother, who facilitated access to the Father. The exact amount of access was not indicated by either party.
[10] From the date of separation until the end of January 2020, the children resided with the Mother, who accommodated the Father when he requested time to see the children. At the case conference, the parties entered into Interim Minutes of Settlement, dated January 31, 2020, whereby the parties agreed on an interim and without prejudice basis that the children would reside primarily with the Mother and the Father would have access to Milania on alternate Fridays after school until the return to school the next Monday, and alternate Wednesdays after school until drop off on Friday at school. With respect to Milena, due to her young age, she resided primarily with the Mother and saw the Father for two hours, three times per week. This access schedule continued after the suspension of schools due to the COVID-19 pandemic. Accordingly, the Father also had access to Milania during the day when he had mid-week access. In their Minutes of Settlement, the parties agreed to review the access schedule no earlier than April 2020, and then agreed that either party could bring it back before the court. The Mother maintains that she desired to revisit the schedule at that time but was delayed by the suspension of court operations.
[11] The Mother is a school principal. Her maternity leave is now over, and she is returning to work full time. The access schedule, especially with respect to Milena is no longer feasible. Even if she is able to work remotely, which she has advised she can, she will still need to be available throughout the school day to perform her administrative tasks and to support her staff and students. In addition, Milena is now one year old, and appropriately, the frequency and length of her access visits with the Father should be revisited.
[12] The Father was a private investigator when the parties were first married. He has not worked since 2016. The Father maintains that the parties made the mutual decision that he would not work so that he could look after the children and spend more time with the family. This allowed the Mother to further her career. The Mother maintains that her extended family actually looked after the children while she worked, while the Father otherwise occupied himself. She maintains that he should be working.
[13] It is the Mother’s position that the access since January 30, 2020 has not gone well. She indicates that Milania is not being washed properly, that the Father does not support Milania’s education, and that he doesn’t bring her to her activities or shows up late. She says Milania misses Melina as they are on different schedules. Also, she claims the Father does not facilitate phone access between her and the children while they are in his care, and he did not use Milena’s agreed-upon formula.
[14] The Mother also made serious allegations about domestic violence as against her and her parents, and she believes the Father’s request for more access is simply another form of abuse. She believes he has no intention of becoming employed and wishes to collect spousal and child support from the Mother as a form of punishment. The Father denies these allegations and argues there is no reason to reduce his access to his children.
Interim Custody
[15] In determining an interim access order, the Divorce Act, R.S.C. 1985, c. 2 (2nd Supp.) states:
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[16] Reference should be had to section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which outlines factors to be considered when determining the best interest of the child. The status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests: Grant v. Turgeon, 2000 2256 (Ont. S.C.), at para. 15. The court in Grant continues to state, at para. 26, that when it is difficult to identify the status quo that should continue until trial, one should find direction in the words of Zuber J.A. from Court of Appeal for Ontario in Sypher v. Sypher, 1986 6337 (Ont. C.A.), wherein he states at p. 413:
At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose the purpose of an interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.
[17] Of particular assistance are the comments of Pazaratz J. regarding interim orders for custody in Coe v. Tope, 2014 ONSC 4002, where in he states at para. 25:
a. The material is hastily prepared, incomplete, and untested. The facts are often still evolving.
b. As in this case, elevated emotions are heightened by the fact that the parties are in a state of transition. Both parties are relocating to new homes. Even without ongoing custody litigation, that would be stressful for everyone including the children.
c. The obvious strategic dynamics associated with temporary motions cannot be ignored. Already, counsel are arguing “status quo” even before they can agree on what the status quo consists of. Temporary and even temporary-temporary orders often have long-term implications. Being fair to the parties as litigants is important. Being fair to the children is even more important.
d. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process – quite often at a trial (citations omitted);
e. The status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change (citations omitted);
f. Courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception (citation omitted);
g. Physical separation between parents usually entails some continuing geographic proximity — usually within the same community. Where travel time and arrangements are not a serious complicating factor, courts can determine timesharing and other parenting issues purely on the basis of "best interests" considerations. Maximum contact with both parents is presumed to be beneficial (citation omitted);
h. Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues.
[18] In keeping with the last point raised by Pazaratz J., the Ontario Court of Appeal has since confirmed in Rigillo v. Rigillo, 2019 ONCA 548, at paras. 3-4, that the goal of maximum contact is only to be overtaken to the extent that it conflicts with the best interests of the children. In addition, when considering the status quo, no consideration should be made towards any status quo that occurred as a result of a “without prejudice” order put in place prior to that time: Rigillo, at para. 9.
[19] Based on the uncontested facts, it is clear that, when the parties were together, the children were accustomed to having both parents in their life on a daily basis. When the parties separated, they lived primarily with the Mother, whether or not she was on maternity leave, and had access to the Father. At no time was it alleged by the Father that during these previous periods of separation, he had equal time with the children. Both children were born while the parties were separated. In the first almost two years of her life, Milania lived primarily with the Mother. For the first six months of her life, Milena lives primarily with the Mother.
[20] It is also clear that if the Mother’s allegations about the Father’s ability to parent over the last few months were made out (and at this juncture I am making no such determination), this conduct in itself is not a reason to decrease the time the children spend with the Father. Parenting practices such as these do not call out for a “nuclear approach”, being the decrease or suspension of access. The Father, or both parties for that matter, should be given an opportunity to correct any such alleged conduct, and mutual directional orders can be given in that respect.
[21] The question then remains: applying the considerations outlined herein to the particular facts of this case, should access stay the same, or be increased? If it is to be increased, by how much and how soon?
[22] Even at this early stage of the proceedings, the following factors are clearly in the children’s best interests:
a) The children should have frequent and regular contact with each parent;
b) The children should be kept healthy and follow regular hygiene practices while with both parents;
c) The children should be supported in their education by both parents;
d) The children should be supported in any extra-curricular activities to which the parents agreed or were ordered by the court; if the children are enrolled in extra-curricular activities by one parent that do not interfere with the other parent’s time, that other parent should not discourage or criticize that activity;
e) The children should not be exposed to unnecessary conflict between their parents;
f) Children should not be made part of their parents’ conflict or be advised on the status of the litigation, except to tell them when they will reside with each parent; and
g) Children naturally love and trust both parents. They should not have to hear one parent talk about how the other parent is not worth of that love or trust It does not take any degree of expertise to understand how conflicting and stressful that would be to a child.
[23] As indicated herein, there is no reason to reduce Milania’s access to her father. Given the age of Milena, it is time to start increasing her time with the Father. When considering the best interests of the children, I must consider their interests both individually, and together, as siblings. I find that it would be in the best interests of the children, in this case, that Melina’s access be slowly increased so that it matches that of Milania, so that moving forward, they start to enjoy a full family life with both parents, together. After their access schedules are synchronized, the parties will be in a better position to advocate for a more permanent schedule going forward, presumably with the assistance of the Office of the Children’s Lawyer.
[24] The Father’s access to Melina must also be changed to take into consideration the Mother’s return to work. Access exchanges cannot take place in the middle of the day. The Mother needs to be available for her work, whether in person or online. The Mother’s employment should not be placed in jeopardy, especially since she is the sole source of income for this family at this time.
[25] The Mother requires daycare for her children - before and after school care for Milania and daycare for Milena. Given that the Father does not wish to avail himself of daycare at this time, the Mother should be free to choose the daycare of her choice that is suitable for the children and accommodates her employment. The Father should pay his proportionate share of these costs. When the Father returns to work and requires daycare himself, these costs are properly apportioned between the parties as well.
[26] I do not agree that it is in Milena’s best interests to stay with the Father instead of attending daycare while in the Mother’s care. Each parent is entitled to make day-to-day decisions regarding their children during their parenting time. The Mother has determined that during her parenting time, Milena would benefit from a daycare environment and a regular routine during the days. It would also be in the parties’ best interests that access exchanges take place at a school or daycare, so that as much as possible, interaction as between the parties can be kept to a minimum. This is especially true due to the current restrictions on their contact as outlined in the Father’s conditions of his release pending the adjudication of his criminal charges.
Extra-curricular Activities
[27] On January 31, 2020, the parties already agreed on extra-curricular activities that the children would participate in. There is no reason to vary that agreement.
[28] The parties are free to enroll the children in any activity they wish during their parenting time, but if it conflicts with the other parent’s time, they need that parent’s consent, or they cannot assume the other parent will facilitate attendance. Also, with the exception of the activities already agreed upon, a parent cannot be expected to be paid their proportionate share of the expense of that activity unless they receive their other parents’ consent, in advance, in writing.
Charge on 1045 North Service
[29] An agreement was already reached on this issue on January 31, 2020, that the Father would discharge this charge. While it is not clear if this has been formalized into an Order, the terms of the Minutes of Settlement are such that it was anticipated that it would be an Order.
[30] The Mother simply seeks that the Father abide by the Order already made. The Father has provided no evidence in his materials as to why this was not done. The Father has requested, as a pre-condition, that the matrimonial home designation on this property be removed before the discharge is completed.
[31] With respect, no such request is before the court. As indicated, the Father has provided no evidence as to the circumstances surrounding this charge, why the matrimonial home designation has any relevance, and why he has not discharged it yet.
[32] Accordingly, the Father is currently in default of that order. A further order will be made again, to which the Father is urged to adhere.
Conclusion
[33] For the foregoing reasons, I make the following orders:
a) On consent,
The parties shall not communicate with each other, except with respect to the children, and only through the online communication platform: www.ourfamilywizard.ca. Each party will register within fourteen (14) days and be responsible for their own registration fees;
The Father shall provide the appropriate consent to late filing of the Mother’s Amended Application, if not already done so;
The Father shall provide all necessary documentation to the Mother to allow her to value her pension, if not already done so;
b) On a without prejudice basis, the child, Milania, will reside primarily with the Mother and have access to the Father on a two-week rotating schedule, as follows:
Week one: from after school or after school care on Fridays at 5:30 p.m. until the following Monday at the commencement of before school care or school. If this weekend includes a statutory holiday on Monday, access will be extended until the return of school or before school care on Tuesday morning. If school is not otherwise in session, access shall continue until 5:30 p.m. on Monday.
Week two: from Wednesday at 5:30 p.m. until Friday at the commencement of school or before school care. If school or after school care are not operating for whatever reason on Friday, the Father shall return the children to the Mother by 5:30 p.m.
c) On a without prejudice basis, the child, Milena, will reside primarily with the Mother with access to the Father as follows:
Commencing September 21, 2020, until and including October 18, 2020, every Wednesday and Friday from after day care (or 5:30 p.m.) to 7:30 p.m., and every Sunday from noon to 4:00 pm.
Commencing October 21, 2020, until and including the end of December 2020, on the following alternate week basis:
(i) Week one (coinciding with week one for Milania): Wednesday from 5:30 after day care until 7:30 p.m. and from Sunday from noon until Monday morning, with the return to daycare.
(ii) Week two (coinciding with week two for Milania): Tuesday from 5:30 to 7:30 p.m. and then Thursday from after day care until the return to day care on Friday morning.
- Commencing January 1, 2021 for a period of 2 months:
(i) Week one (coinciding with week one for Milania): Saturday from 3:00 pm. and overnight until Monday morning, with the return to daycare.
(ii) Week two (coinciding with week two for Milania): on Wednesdays from after school or day care at 5:30 p.m. until Friday at the commencement of daycare or school. If school or day care are not operating for whatever reason on Friday, the Father shall return the children to the Mother by 5:30 p.m. that day;
d) On a without prejudice basis, commencing March 1, 2021, both Milania and Milena will reside primarily with the Mother, with access to the Father on a two-week rotating schedule, as follows:
Week one: from after school or daycare on Fridays at 5:30 p.m. until the following Monday at the commencement of daycare or school. If this weekend includes a statutory holiday on Monday, access will be extended until the return of school or daycare on Tuesday morning. If school or school or daycare are not otherwise in session, access shall continue until 5:30 p.m. on Monday.
Week two: from Wednesday after school or day care at 5:30 p.m. until Friday the commencement of daycare or school. If school or day care are not operating for whatever reason on Friday, the Father shall return the children to the Mother by 5:30 p.m. on Friday;
e) All access exchanges will take place at school or daycare, or if not in session, at the police station currently being used;
f) The parties shall not speak negatively about the other parent in the presence of the children, nor allow others to speak negatively about the other parent in the presence of the children;
g) The parties shall not discuss the litigation with the children or in the presence of the children;
h) During each party’s parenting time, they shall ensure:
That the children are delivered to school or daycare on time;
That they will support Milania’s education, ensure all assignments are completed and share any important information regarding her education or Milena’s daycare through ourfamilywizard.com;
That the children are free to initiate telephone contact with one parent by phone, text or video while in the other parent’s care; the parties will be supportive of this communication;
That the children attend the extra-curricular activities agrees to in the Interim Minutes of Settlement dated January 30, 2020, or any other activity to which they agree; and
That the children practice proper hygiene, including hair care and bathing;
i) Milania shall be enrolled in the two activities identified in paragraph 2(a) & (b) of the Minutes of Settlement dated January 31, 2020 unless the parties agree otherwise in writing;
j) Both parties are free to enroll the children in any other activity during their parenting time, but it may not interfere with the other parent’s parenting time without the other parent’s written consent, in advance through www.ourfamilywizard.ca. No consent should unreasonably withheld;
k) Neither parent may demand payment of the other’s proportionate share of any extra-curricular activity unless ordered by the court, or the other parent has provided their written consent to that activity, in advance through www.ourfamilywizard.ca. No consent is to be unreasonably withheld;
l) The Father shall forthwith discharge the charge for $150,000 currently registered against title to 1045 North Service;
m) The parties are encouraged to resolve the issue of costs. If they are unable to do so, the parties shall serve and file their written submissions on or before 4:30 p.m. on October 2, 2020. The parties shall serve and file their responding submissions on or before 4:30 p.m. on October 16, 2020. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca, and directed to my attention. No submissions may exceed 10 MB; and
n) The remainder of the Mother and Father’s motions are dismissed.
Fowler Byrne J.
Released: September 15, 2020
COURT FILE NO.: FS-19-96242
DATE: 2020 09 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KULWINDER KAUR DHILLON
Applicant
- and -
KARANPAL SINGH DHILLON
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: September 15, 2020