Court File and Parties

COURT FILE NO.: FC-07-FS039889-0000 DATE: 2021/03/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TARPINDER SINGH SIHOTA, Applicant AND: GURINDER KAUR SIHOTA, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: James Mountford, Counsel for the Applicant Ritika Kumar, Counsel for the Respondent

HEARD: March 3, 2021

Endorsement

Overview

[1] This is the father’s Motion for reinstatement of parenting time which has been unilaterally suspended by the mother.

[2] For the reasons that follow, the mother shall comply with the terms of the Order of Justice Campbell dated September 24, 2013, delivering the children for the father’s parenting time as set out therein.

[3] If the mother seeks to change that Order, she should bring a Motion to Change. In the interim she must comply with the Order.

[4] The father also brings a Motion to strike the affidavits of his children, filed by the mother in this proceeding. At the hearing of the Motion the mother withdrew those affidavits. They should not have been filed. While the children’s views and preferences are undoubtedly important, there are more appropriate ways to put those views before the Court.

Materials

[5] I have been provided with and have reviewed the following materials for this Motion: a. The father’s Notice of Motion signed December 18, 2020 (re parenting); b. The father’s Notice of Motion signed January 19, 2021 (re children’s affidavits); c. The father’s affidavit sworn December 17, 2020; and d. The mother’s affidavit sworn January 7, 2021.

[6] Affidavits of both children were also filed. The contents of the children’s affidavits, now withdrawn, have not been considered or relied upon in this decision.

Factual Background

[7] The parties are the parents of two teenage girls, Esha (age 15) and Rhea (age 13).

[8] The parties have been separated since 2006. On September 24, 2013, Justice Campbell made a Final Order which provided in part that: a. The mother would have custody of the children; b. The children would be in the care of their father on alternate weekends from 3:30 p.m. to Monday morning at 9:00 a.m.; and c. Each Tuesday and Thursday after school (end time not specified).

[9] Justice Campbell’s Order was on consent, and based upon Minutes of Settlement filed by the parties.

[10] There has been conflict between the parties. At several points in time the mother has made allegations against the father which have ultimately not been substantiated.

[11] On November 30, 2020, the mother advised the father by letter from her counsel that she had concerns about the children’s time with their father. These concerns included: alleged threats of self-harm; that the father interrogates the children during his parenting time; that the father reprimands the children for spending too much time with their mother; and that the children have been given the silent treatment. The letter states that the father’s behaviour has impacted the children’s mental health.

[12] Most concerningly, the letter from counsel also states as follows: “the children will no longer be attending access until they are both able to obtain the necessary counselling that they require.” The letter goes on to tell the father not to attend at the children’s school or to contact them through social media.

[13] The mother did not then, and has not yet started a Motion to Change or taken steps to change the Court order. She simply stated that she would not be following it.

[14] The children have not had time with their father since late November 2020, now three months ago. He sought an urgent case conference in December 2020 but was told that this was not available. He then brought this Motion on an urgent basis.

The Mother’s Stated Concerns

[15] I have reviewed the mother’s affidavit carefully. I note, as did the father’s counsel, that it is rife with hearsay statements.

[16] The mother’s fundamental concern seems to be that the children say they no longer wish to see their father due to his “abusive actions and complete disregard for their mental and physical well-being.”

[17] The mother’s materials refer to allegations that she made to the Children’s Aid Society in 2008. I note that the parties entered into the Consent Order well after these allegations were made.

[18] She refers to what she says were the father’s threats of self-harm and insulting comments to the children in 2018 and the children not wanting to attend access thereafter. Notwithstanding her stated concerns, she did not bring a Motion to Change at that time, either. It appears there was a gap in parenting time, although it was subsequently reinstated.

[19] The mother then sets out evidence about child support issues, which were raised in the fall of 2020. This appears to have led to some conflict between the parents. The mother worries that the father is pressuring the children to spend time equally with each of them in light of her request for increased child support.

[20] The mother says that following the visit with their father on the weekend of November 28, 2020, the children were upset.

[21] The mother makes general statements about the father stating at various (unspecified points in time) that he will kill himself, and of making insulting statements to the children. For example, she states: “The Applicant often threatens to kill himself, or disown the children when he is displeased with them.”

The Father’s Response

[22] I have also, of course, reviewed the father’s materials carefully.

[23] His materials describe a loving relationship with his daughters.

[24] His materials flatly deny the allegations of threats of self-harm or insulting comments to the children. He suspects that where the mother has attributed comments to the children, the mother has fabricated the children’s statements.

[25] The father has remarried. He states that he has never been happier. He says that he and the children enjoy their time together. The father states that he does not make negative comments about the mother.

[26] The father wholly denies that he “interrogates” the children.

Analysis

[27] The father simply wishes to have the mother follow the 2013 Order of Justice Campbell and have his parenting time reinstated. He says that Orders are to be followed and that there are processes in place to change Court Orders. Letters unilaterally terminating parenting time are not one of those processes. The father asks that the Court order make-up time for time lost, and suggests that this be in the form of one month of uninterrupted time with the father.

[28] The mother states that she simply wants what is best for the girls, that she is trying to protect them, and that she cannot “make them” see their father. She says the children wish to have a voice in what their time with their father looks like. Her counsel states the mother has “no issues” with access. The mother suggests counselling. The mother’s counsel states that the girls want an opportunity to speak with the father privately about what their concerns are.

[29] I am unable to make findings on the evidence before the Court that the father poses a risk to the girls or to find on a balance of probabilities that he has in fact been threatening to harm himself. The mother’s accusations in this regard are diffuse and lack specificity.

[30] Nor am I able to find that the father interrogates the girls as the mother alleges. Indeed, on her material for this Motion it appears that it may be she that does the interrogating.

[31] There appears to be conflict between the parents that may have been exacerbated by issues related to child support. The mother’s materials do not set out concerns so serious that the 2013 Order would be changed, even temporarily, on this urgent Motion.

[32] The governing Order was made in 2013 when the girls were approximately 6 and 8 years of age. Although I am not prepared to make changes to the 2013 Order today (nor is there a Motion before the Court from the mother seeking that relief) it may very well be that the girls would want a say in what their time with their father looks like, or that they have concerns that they wish to discuss.

[33] The mother, however, is on the wrong track, thinking she can simply suspend access. If she would like to change the 2013 Order, the proper approach is to bring her Motion to Change. She could seek the appointment of the OCL within that Motion to Change, to give the children an opportunity to feel heard. A Voice of the Child report may be possible. Meanwhile, the mother’s obligation is to tell the girls that their parents made a plan in 2013 which is in the form of a binding Court Order, and that both parents have an obligation to follow that Order until the Court makes a new one. Just as the mother presumably requires that the children attend school, attend with the dentist, and attend to other obligations, she should be role modelling for the girls that Court Orders are to be followed. This is what responsible parents teach their children.

[34] I note that the mother purported to suspend access three months ago. No Motion to Change has been brought, even though the mother is represented. I was not advised that a draft has even been prepared. I find this astonishing.

[35] The Order below provides for a reinstatement of parenting time as sought by the father. I am not, however, prepared to order “make-up time,” and certainly not for an uninterrupted month, as sought by the father. The priority must be to get the schedule back up and running. The Court has insufficient evidence to determine what make-up access arrangements would be in the children’s best interests at this time.

A Word about the Affidavits of the Children

[36] The affidavits were withdrawn at the Court’s encouragement at the commencement of the Motion. They should never have been filed. I can think of no action that would place children more squarely in the middle of their parents’ conflict than having them prepare affidavits for their parents’ litigation.

[37] I encourage counsel to decline to prepare, serve, or file affidavits of children in family law litigation. There are better ways of hearing children’s voices. This should be a bright line not crossed, as I learned long ago from my mentor, Philip Epstein.

Costs

[38] I have heard from both counsel on the issue of costs both in the event of success and also if unsuccessful. The father seeks full recovery of costs in the amount of $9,000 if successful. The mother seeks costs of $8,500 if successful. Neither counsel provided a bill of costs, nor did either counsel request an opportunity to file one, likely given how similar the costs amounts are.

[39] In this case, the father has been successful, but for the issue of make-up access. He is presumed entitled to costs.

[40] Applying Rule 24(12) I make the following comments: a. The mother’s behaviour in this case was not reasonable, either in terms of her failure to follow the Court Order, or in terms of filing affidavits of the children and not withdrawing them until the commencement of the Motion; b. Both counsel appear to have spent comparable time in relation to this Motion given their almost identical cost claims. While the father’s counsel is more senior his fees are in the same range as mother’s counsel’s stated fees; c. Neither party provided the Court with offers to settle or indicated that any had been exchanged, whether formally or informally; d. The father has now missed three months of parenting time and the girls have missed this time with him. This is not acceptable; e. The mother has counsel. Her behaviour can in no way be excused or mitigated by a lack of knowledge of her legal obligations in the face of the existing Order.

[41] In all of the circumstances, I find that the fair, reasonable, and proportionate amount for the mother to pay the father on account of costs is $8,000 inclusive of HST and disbursements. I find that this amount recognizes the seriousness of simply declining to follow a Court Order without taking steps to change it, while recognizing that the father was not successful on the narrow issue of make-up access.

[42] The amount payable on account of costs shall be paid at a rate of $250 per month commencing April 1, 2021.

[43] Accordingly, based on all of the foregoing, I make the following Order:

1. This Motion may proceed on an urgent basis before a Case Conference;
2. The parenting schedule set out in the Order of Justice Campbell dated September 24, 2013 shall immediately be reinstated and the mother shall take all reasonable steps to ensure that the children attend for their scheduled time with their father;
3. The balance of the relief sought is dismissed; and
4. The mother shall pay to the father in the amount of $8,000, on account of costs, at a rate of $250 per month commencing April 1, 2021.

L. Madsen, J. Date: March 5, 2021