Harpreet Saini v. Harvandana Tuli

COURT FILE NO.: FS-12-383541

DATE: 20210507

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HARPREET SAINI

Applicant

– and –

HARVANDANA TULI

Respondent

COUNSEL:

Mervyn White, for the Applicant

Natasha Lett, for the Respondent

HEARD: May 6, 2021

Reasons for Decision

M. D. FAIETA J.

[1] The Respondent mother brings this urgent motion for an order that she be permitted to remove the parties’ children, Simar Singh, age 13, and Veer Singh, age 10, to Sacramento, California for the period from May 8, 2021 to June 12, 2021. The Respondent states that she is required to travel for work and she believes that it is not in the best interests of the children for the Applicant to care for them in her absence. The Applicant father opposes this motion out of concern for their safety given the COVID-19 pandemic in light of the ban on non-essential travel.

[2] For reasons described below, I have dismissed the Respondent’s motion.

BACKGROUD

[3] The parties were married in 2003 and separated on May 5, 2012. This Application was commenced in December, 2012. A divorce order was granted on April 3, 2013. A temporary order for custody, access and child support was issued, on consent, on June 7, 2013.

[4] The parties entered into a separation agreement dated January 24, 2015 which includes the following terms:

• The parties shall have joint custody of the children.
• The parties will share decision making regarding the children.
• The children will reside primarily with the Respondent.
• The children will reside with the Applicant on Wednesday evenings from 5:00 pm to 8 pm; alternate weekends from 6:00 pm on Friday to 7:00 pm on Sunday; If Monday is a statutory holiday, the access will be extended to Monday until 6:00 pm.
• In addition, the parents will equally share parenting time with the child over the children’s Christmas Break, Spring Break and their eight-week Summer Vacation;
• The parent residing with the children at the relevant time will make the daily decisions regarding their welfare.
• In case of special situations, both parties will cooperate and try to accommodate each other’s requirements regarding having children over the holiday and schedule;
• If either party plans a vacation with the children, that party will give the other a detailed itinerary at least 14 days before it begins including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.
• If either party plans a vacation outside of Canada with the children, the travelling party will provide the other party with a draft letter authorizing the children to travel, for the other party to execute and have notarized. Any missed access will be made up as soon as possible.

[5] The Separation Agreement has not been implemented by a court Order.

[6] In her first affidavit, the Respondent states:

• The Applicant has exercised weekend access inconsistently, sometimes only once a month rather than twice a month;
• The Applicant has only had the children in his care for one week during December 2015 for Christmas break. Simar became extremely sick and suffered two seizures. The children have not spent more than one weekend with the Applicant since that time. At that time, the parties agreed that the Applicant would only have the children in his care for 4-5 days at a time;
• In December 2016 the Applicant took the children to New Jersey for a week over the Christmas Break to visit their aunt. While there, Simar became extremely sick as a result of a virus;
• The Applicant had access from January 2020 to March 2020 on most alternate weekends;
• In March 2020, the Applicant stopped exercising access for a period due to concern that he may have contracted COVID-19 from a co-worker at the airport who had tested positive;
• From March 2020 to June 2020 the Applicant saw the children at her house in the driveway or would take them to Tim Hortons;
• Weekend access only started again in about June, 2020 and continued to August, 2020 when he was asked to leave his parent’s home;
• Since August, 2020 the Applicant has not had the children in his care for any overnight access. The Applicant occasionally picks up the children for an hour or so and takes them to Tim Hortons or another place for a treat and then returns them home;
• The Applicant has not called, or face-timed the children regularly. There have been weeks when the children did not hear from the Applicant;
• She believes that the Applicant is transient as he has not taken the children for parenting time, including this past March Break 2021 because he told them that he could not have them in his care, including overnight, because he had no place to live;
• The Applicant spoke with Simar by telephone on April 23, 2021 and told him that he could not take them for Spring Break because he does not have a residence still but would come by to see them. The Applicant picked up the children on the following Sunday around 5:00 pm and took them to Tim Hortons and returned them home.
• The Applicant had an argument with his parents which led to him being “kicked out” of their home in Markham in August, 2020 and since that time the Applicant has been “couch surfing” with friends including his girlfriend;
• After the Applicant left his parents’ home, he told the children that he was “homeless now”.
• The Applicant has not exercised consistent parenting for nearly a year. In fact, she states the Applicant has never really exercised consistent parenting time with the children since separation;
• The Applicant stopped seeing the children on Wednesdays in about 2016 as he said it did not work with his schedule. At times, the children were not able to attend the scheduled weekend access due to exams, assignments or activities;
• The Applicant has not had the children with him for almost a year;
• The children are not comfortable with the Applicant. He has a short temper and the children are afraid to tell the Applicant that they want to go to California with the Respondent;
• The Applicant has not told the Respondent about his plan to care for the children nor has he provided proof that he can care for the children. He does not know their daily routine, nor has he taken care of the children for more than one week. He is not familiar with the schoolwork or their daily care.

[7] In his responding affidavit, the Applicant states:

• “The Applicant has exercised his access regularly save and except for expected adjustments to the schedule that arose from time to time and which the Respondent and I were able to resolve between us”
• Weekend access was changed to start on Saturday mornings rather than Friday evening because of the children’s early Saturday morning basketball practices;
• His parenting time only became inconsistent as a result of the COVID-19 pandemic. He was employed as a screening officer at Pearson International Airport and felt it appropriate to cancel all in person visits with the children. As COVID-19 restrictions began to lift, he slowly began in person visits including overnight access visits.
• The children have never been uneasy or uncomfortable in his care. He has a close and loving relationship with them;
• He has taken the children to New Jersey for one-week vacations in 2016, 2018 and 2019;
• The assertion that he is transient and does not have a stable residence is completely false. He states that he has had a committed relationship with his fiancé since 20212. They became engaged to marry in February, 2020. They plan to marry in July, 2022. He has resided with his fiancé’s parents (a teacher and a Vice-Principal) since August, 2020. His drivers’ license was updated in November 2020 to show an address in Caledon. The Applicant states that he and his fiancé have been looking for a house to purchase however until they do so, they have been welcome to live with her fiance’s family indefinitely;
• He has been unemployed since January 2021 and is looking for work;

[8] In her reply affidavit, the Respondent states:

• “the Applicant was and still is transient and is not being truthful about his current living situation. Since August 2020, the Applicant has not had the children in his care for any overnights or weekends except for two overnights in February 2021 where the paternal grandfather contacted me and wanted the children to visit. The Applicant took the children for overnight access to their paternal grandmother’s home in Markham. They have never spent a weekend or any extended period at the address in Caledon.”
• “this is the first time that I have heard that the Applicant has moved in with his fiancé, and I did not even know that he was engaged to be married”
• The Applicant’s current Caledon address was not provided to the Respondent until she received the Applicant’s responding affidavit;
• “It does not make sense that the Applicant never had the children at this address between August 2020 and May 3, 2021, and yet conveniently now has a home for them on the eve of this motion”;
• The Applicant saw the children on Sunday, May 2, 2021 for a two-hour period. He did not take them to his fiance’s home in Caledon but instead took them to the usual spot at Tim Hortons where the children have had parenting time with the Applicant for the last year;
• After receiving the Applicant’s affidavit, Simar told the Respondent that he is aware that the Applicant is engaged and did not share that information with her because the Applicant had told him not to do so;
• The children told the Respondent that they met the Applicant’s fiancé at a home in Caledon a long time ago.

Travel to California

[9] The Respondent is a long-term employee of Oracle Corporation, a software company, whose headquarters is in Sacramento, California. She was promoted to the position of Application Sales Manager with Oracle America, Inc., in September, 2019. Before she accepted this position, the Respondent asked the Applicant for permission to move to California with the children. Such permission was denied.

[10] Instead, her manager permitted the Respondent to work fifteen days each month in California and the balance of the month in Ontario. When the COVID-19 pandemic arose, her manager permitted the Respondent to work solely from home in Ontario.

[11] The Respondent states that her employer has advised her that she “…needs to transition to California and eventually move there”. The Respondent further states that her employer expects her “… to work onsite and close up the year-end”

[12] The Respondent fears that she will lose her work visa and/or job if she does not travel to California for the period May 8, 2021 to June 12, 2021. The Respondent provided a letter from her employer. It confirms her terms of employment and states that her current work location is in a suburb of Sacramento, California. However, their letter does not state that the Respondent needs to be in California for the period from May 8, 2021 to June 12, 2021 or further, that she will lose her job if she fails to attend work in person.

[13] On April 19, 2021 the Respondent sent the following message to the Applicant:

My corporate fiscal year end is next month and I am planning to go to [the] USA for a period of 1 month approximately. My mom will accompany me, I wanted to get your consent to take the kids along so I can make the necessary arrangements in time.

Kids will continue studying online. Will maintain contact via phone/video calls.

Will ensure missed access is covered immediately upon return.

[14] Within minutes the Applicant responded:

There is a stay-at-home order in place as COVID numbers are continuing to increase. The kids have not been vaccinated it is not safe for them to travel.

[15] On April 20, 2021 the Respondent sent the following message:

…. I appreciate your offer to care for the kids while I am away. We could have definitely made those arrangements but since I am going for more than a week, I don’t think that would be feasible for both you and kids.

[16] The Applicant responded:

… I am more than capable to take care of my kids while you need to fulfill you obligations for work. I’m a bit confused as to why you would assume I would not be able to care for the kids while you needed to work?

[17] The Respondent replied:

… I did not make an assumption that you are not capable to care for the kids. I feel there is an interpretation issue here .. I said that it won’t be feasible for both you and kids. This is nothing against your fatherly capabilities. …

[18] This motion was filed on April 29, 2021.

COVID-19 Protocols

[19] Ontario Regulation 265/21, Stay-At-Home Order, under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, states that every individual shall remain at the residence at which they are currently residing unless leaving their residence is necessary for one or more of the following purposes: … 23. Travelling to an airport, bus station or train station for the purpose of travelling to a destination that is outside of the Province. …”

[20] Amongst other things, a Travel Health Notice, updated April 22, 2021, issued by the Government of Canada states:

The Public Health Agency of Canada is continuing to advise travellers to avoid all non-essential travel outside of Canada.

[21] In her first affidavit, the Respondent states “I strongly believe that the Applicant is more at risk of exposing the children to COVID-19, than the children going with me to California, as the Applicant is bouncing from place to place and I do not know who he is exposed to”.

[22] The Applicant states that she has previously travelled to California in August and November, 2020 for 15 days. The children remained at home in the care of her mother as the Applicant refused to allow the children to travel to California. He did not offer to care for the children. The Respondent’s mother had heart surgery in March, 2021 and cannot be left alone to care for the children in Canada alone given her condition.

[23] The Applicant’s plan is to drive to Detroit and fly out from Detroit on a non-stop flight to California. She states that there are also non-stop flights available from Toronto to Los Angeles. The Applicant also suggests that she will be able to obtain a vaccine for COVID-19 in California and her son, Simar, may be able to do so as well given that Pfizer has announced that it will seek approval for its vaccine to be administered to children as young as 12 years old.

Applicant’s Plan of Care During the Respondent’s Travel to California

[24] The Respondent states that the Applicant cannot care for the children and they cannot reside with him for the following reasons:

• The children lack a strong relationship with the Applicant and have not spent any substantial time with him since December 2015;
• The children need stability, supervision and caregiving which the Applicant is unable to provide;
• The Applicant is unaware of the children’s daily routine and is unable to assist the children with their school, spiritual, religious and cultural routines;

[25] The Applicant’s plan of care is as follows:

• He would ensure that the children maintain the same schedule as when they live with the Respondent;
• The children would live in him, his fiancé, and her parents in their four bedroom, three bathroom home;
• The children would share a bedroom and have their own bedroom;
• There is a work station available for each child in his home;
• In the morning he would get the children up and make them breakfast and then have them start their online learning.

ANALYSIS

[26] A decision regarding whether a child should be permitted to travel outside Canada is an incident of parental decision-making responsibility and as such turns solely on whether it is in the child’s best interests: See ss. 16 & 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[27] While I accept that Respondent’s evidence that she feels that her continued employment may be at risk if she does not attend work in person, it is the best interests of the children that be considered not the best interests of one or both of their parents that is relevant.

[28] When determining whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks.: Verbanac v. Dawson, 2019 ONSC 4473, para. 43.

[29] In this context, the children’s safety is a critical consideration. The COVID-19 protocols clearly direct that non-essential outside of Canada be avoided. I do not accept the Respondent’s speculation regarding the children’s relative risks of contracting COVID-19 if they remain with the Applicant while she is in California. Further, while the Applicant’s travel to the United States may be essential for her in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.

[30] This is not a case where the trip provides the children with an opportunity to explore his cultural heritage by spending time in his family’s ancestral homeland: Yacoub v. Yacoub, 2010 ONSC 4259, para. 21. In this case, the children are simply tagging along with their mother who has to work for one month because she fears that their father lacks the ability to care for them.

[31] While the Applicant may very much have taken a backseat in raising the children, I am not satisfied that he cannot care for them or assist them with their school work while the Respondent is out of the country for one month particularly given that he has made arrangements for the children to reside with him and his fiancé at her parents’ house in Caledon. While the Applicant could have done more in advance of this motion to explain to the Respondent his current living arrangements and circumstances as well as his plan for the care of the children, it is not determinative of the outcome on this motion. Considering all of the circumstances, including the children’s apparent desire to travel with the Respondent to California, I find that it is in the children’s best interests to dismiss the Respondent’s motion.

CONCLUSIONS

[32] The Respondent’s motion to permit the children travel to California for the period from May 8, 2021 to June 12, 2021 is dismissed.

[33] The Applicant shall deliver his costs submissions by May 14, 2021. The Respondent shall deliver her costs submissions by May 21, 2021. The Applicant shall deliver his reply costs submissions by May 28, 2021. Each submission shall be no more than three pages each, exclusive of settlement offers and their outline of costs. I encourage the parties to make every effort to resolve the question of costs of this motion.

[34] Although both parties consent to an order asking The Office of the Children’s Lawyer to conduct an investigation and prepare a Voice of the Child Report relating to parental decision-making, parenting time and relocation of the children from Ontario to California given the Respondent’s intention to move to California, I find that such request is premature given that the Applicant has not filed a motion for such relief.

[35] On consent of the parties, I order that this court file be transferred from the Ontario Superior Court of Justice in Toronto to the Ontario Superior Court of Justice in Brampton.

Mr. Justice M. D. Faieta

Released: May 7, 2021

COURT FILE NO.: FS-12-383541

DATE: 20210507

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HARPREET SAINI

Applicant

– and –

HARVANDANA TULI

Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: May 7, 2021