Court File and Parties

COURT FILE NO.: FS-21-20955-0000

DATE: 20210706

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMIT SONDHI, Applicant

AND:

RITIKA SONDHI, Respondent

BEFORE: Glustein J.

COUNSEL: Ines Indrakumaran, for the Applicant

Monika Goyal, for the Respondent

HEARD: June 29, 2021

ENDORSEMENT

OVERVIEW

[1] The applicant, Amit Sondhi (Amit), brings a motion asking the court to order (i) a shared parenting plan with the respondent Ritika Sondhi (Ritika) with respect to their child, Arnav Sondhi (Arnav), (ii) joint decision-making responsibility for Arnav, and (iii) imputed income of $45,000 for Ritika to be used in calculating support payments.

[2] Ritika opposes the relief sought by Amit and brings a motion asking the court to order: (i) imputed income of $98,647 for Amit, (ii) payment of spousal support by Amit (retroactive and ongoing), and (iii) payment of child support by Amit (retroactive and ongoing), pursuant to the Federal Child Support Guidelines, SOR/97-175. If shared parenting is not ordered, Ritika also asks the order for child support be without set-off.

[3] The parties filed six affidavits in support of the relief sought in both motions. It was apparent that the issues pertinent to the imputation of income and entitlement to spousal support could not be addressed in the one-hour short motion scheduled by the parties.

[4] The court proposed to determine the parenting issues raised by Amit in the current one-hour motion, with the balance of the issues and relief to be addressed in a long motion to be scheduled. The parties agreed to that approach.

[5] The balance of the relief sought in both motions is adjourned to a half day hearing on January 4, 2022. I am not seized of the return of the motion.

[6] With respect to the parenting issues, I do not find that a shared parenting plan is in the best interests of Amit, based on the evidence before me on this motion. The affidavit evidence has not been subject to questioning, and a final determination may be different depending on the evidence before the court at the hearing of the application.

[7] However, the evidence on the present motion demonstrates that (i) Amit did not share parenting duties either prior to or post separation; and (ii) there are communication concerns arising from Amit’s dealings with Ritika. These factors support a parenting plan under which Amit has overnight parenting time on alternating weekends, with one additional overnight during the week. In my opinion, such a parenting plan serves Arnav’s need for stability.

[8] As to decision-making responsibility, Amit has shown a genuine interest in Arnav’s development, education, and health, and should maintain joint decision-making responsibility on major decisions.

[9] Under the above parenting plan, there is no basis for a set-off of child support. As I make no changes at this time to any income which is the basis of prior support orders, the parties are to co-operate to determine the appropriate support under the Child Support Guidelines, based on income of $80,647 for Amit. The revised amount is to be included in an order or settled by me at a case conference if the parties cannot agree.

BACKGROUND

[10] Amit and Ritika were married in India in April 2009, pursuant to an arranged marriage. They had met twice before the marriage.

[11] Ritika sponsored Amit to immigrate to Canada and in June 2010, they started residing at Ritika’s maternal parents’ residence. In May 2013, they purchased a home in Ajax (the “Family Home”).

[12] Ritika and Amit have one child, Arnav, born on March 27, 2015.

[13] Amit and Ritika separated on January 1, 2019 and continued to reside in the Family Home albeit separate and apart. They sold the Family Home on October 30, 2020 and moved into separate residences.

ISSUES

[14] As set out earlier at para. 4, the only issues heard on this motion are (i) the appropriate parenting plan and (ii) decision making authority.

ANALYSIS

The applicable law

[15] There is no dispute that the factors to be considered by the court to address a parent’s entitlement to decision-making responsibility and parenting time are set out in s. 16 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 as amended. Sections 16(1) and 16(2) mandate that the court only consider the best interests of the child in making a parenting order, with primary consideration given to the child’s physical, emotional, and psychological safety, security and well-being.

[16] The relevant factors to be considered on this motion in determining the best interests of the child are:

(i) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability (s. 16(3)(a)),

(ii) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse (s. 16(3)(c)),

(iii) the history of care of the child (s. 16(3)(d)),

(iv) the child’s cultural, linguistic, religious and spiritual upbringing and heritage (s. 16(3)(f)),

(v) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child (s. 16(3)(h)),

(vi) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child (s. 16(3)(i)), and

(viii) any family violence and its impact on, among other things:

(a) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(b) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child (s. 16(3)(j)).

[17] Similarly, s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 provides that the court shall only take into account the best interests of the child in making a parenting order, with primary consideration given to the child’s physical, emotional and psychological safety, security and well-being.

[18] Both parties rely on case law which applied the above factors in determining parenting plans and decision-making responsibility. However, each case is fact-specific, with the governing principle being the best interests of the child.

[19] Consequently, in my analysis below, I review the evidence upon which I rely to make the orders summarized at paras. 6, 7 and 8 above.

Application of the facts to the best interests of the child

[20] I review the applicable evidence in light of the factors relevant to the best interests of the child.

Needs of the child (ss. 16(3)(a), (d), and (h))

[21] Based on the evidence on this motion, I find that Ritika played a larger role than Amit in caring for Arnav. Based on that history, I find that Ritika is better suited to meet Arnav’s needs, and should have a larger role in a parenting plan.

[22] Amit’s only specific evidence as to parental involvement was that (i) he picked up Arnav from daycare between July 2018 to July 2019; (ii) he picked up Arnav from kindergarten as of September 2019; (iii) he attended an “eye health” seminar to aid in treating Arnav’s medical issues; (iv) he attended a “French immersion” session with respect to Arnav’s education; (v) during the COVID pandemic, he worked beside Arnav while Arnav attended virtual school; and (vi) Arnav enjoys playing sports with Amit.

[23] However, the above evidence does not support the bald assertions in Amit’s affidavit that “it was always a 50/50 split”, “I have also been equally involved in Arnav’s life since his birth”, and that “[Ritika’s] claim that she was the primary caregiver is false”.

[24] Similarly, Amit’s assertion that he was “involved in day-to-day tasks such as bathing him, preparing food for him, feeding him, and playing with him” does not establish an equal parenting role. Participating in bathing, feeding, and playing does not mean that parenting is “a 50/50 split”.

[25] By contrast, Ritika provided several detailed examples of the primary role she played with respect to Arnav’s care, and the lesser role played by Amit. Ritika’s evidence included:

(i) “[Amit] has an extremely demanding work schedule”;

(ii) “[Amit] has never attended or showed any interest in Arnav’s parent teacher meetings or studies”; and

(iii) Post-separation, Ritika “took [Arnav] to all of his activities, prepared all his meals, [and] spent all my time caring for [Arnav]”. Ritika attached a detailed list of such activities, which included play dates, a cottage trip, visits to Centre Island, Niagara Falls, Marineland, the Ontario Science Centre, the Toronto Zoo, birthday parties, and family vacations.

[26] Based on the above evidence, I find that there has not been a shared parenting relationship between Amit and Ritika with respect to Arnav. The general assertions made by Amit are either poorly supported, or not supported at all, by the evidence before the court. Ritika’s evidence establishes that she has been the historical primary caregiver, and that she is best able and willing to care for and meet the needs of Arnav.

[27] As a young child, it is important that a parenting plan take Arnav’s needs into account. Amit failed to lead sufficient evidence of a shared parenting role. Consequently, I find that he is less likely to be able to meet Arnav’s needs at this stage of his development, which require a significant amount of parental involvement.

[28] Consequently, this factor strongly militates against a shared parenting plan.

Relationship between spouses (ss. 16(3)(c) and (i))

[29] Parenting a young child raises important concerns about the ability of each parent to encourage the child’s relationship with the other spouse. Civil communication between the spouses is critical to the best interests of the child.

[30] I now address the evidence relevant to these factors.

[31] There was significant debate between Amit and Ritika on minor issues such as proper bathing techniques, purchases of 3.25% milk, and changing of clothes. However, regardless of which version of the evidence is accepted with respect to these issues, the correspondence between the parties establishes that Amit frequently communicates with Ritika in a manner that does not encourage cooperation and is disrespectful.

[32] By way of example:

(i) In a text dispute over availability of Arnav for an evening talk, Amit (a) called building security at Ritika’s residence and stated that Ritika was “harming” Arnav and (b) asked Ritika “[h]ave you done anything to Arnav?”;

(ii) During video calls with Arnav, Amit has told him that Ritika is restricting parenting time because “she wants money”;

(iii) When asked by text to wait one hour to speak with Arnav because Ritika was cooking dinner, Amit stated by text that “I know you’re probably cooking something already against me .… You have wasted my life”; and

(iv) When Arnav was leaving Ritika’s residence to spend a weekend with Amit, Amit refused to return Arnav with new clothes provided by Ritika. Instead, Amit insisted that Ritika take back the clothes immediately, stating that “you have to come and get it right now” and “get it or lose it".

[33] In contrast, there is no similar evidence of Ritika addressing Amit with similar disrespect. While correspondence between counsel was frequently antagonistic, Ritika’s text correspondence establishes a cooperative approach to resolving the issues that arose.

[34] Consequently, this factor also militates against a shared parenting plan.

Cultural factors (s. 16(3)(f))

[35] Amit stated in his affidavit that it was in the best interests of Arnav “to have a healthy relationship with his paternal grandmother and uncle” and that “Arnav equally enjoys conversing with my mother in Hindi”.

[36] Amit makes no specific reference to the importance of cultural identity for neither himself nor Arnav. Amit also does not suggest that Arnav would be unable to access any cultural identity without a shared parenting plan. While I accept that parenting time is important to permit Arnav to spend time with his grandmother and uncle and enhance his opportunity to converse in Hindi, there is no evidence that a shared parenting plan is required to ensure cultural identity.

Family violence (s. 16(3)(j))

[37] Ritika asserts that she “suffered emotional abuse” since Amit “would often use derogatory language to put me down, calling [sic] fat, ugly, worthless”. Amit denies the allegations.

[38] I do not rely on this factor in relation to the parenting plan. The evidence on the motion is not sufficient to establish any basis to support either position.

ORDER

[39] Based on the above factors, I do not order a shared parenting plan.

[40] I find that some additional parenting time would be in the best interests of Arnav, as he is a young child who should be spending time with both parents, and the current parenting status quo of only providing parenting time to Amit on alternating weekends is insufficient, in my opinion, to promote a parental relationship at this important stage of Arnav’s development. Consequently, I increase Amit’s parenting time to one overnight per week in addition to the alternating weekends.

[41] With respect to decision-making power, I order that Ritika and Amit have joint decision-making power on major decisions. Given the evidence as to potential medical concerns related to Arnav’s vision and the seeking of treatment, it is in Arnav’s best interests that both parents share such decision-making power, with the courts available as a matter of last resort if they cannot agree on major decisions.

[42] With this Endorsement, there is no basis for a set-off of child support.

[43] I expect that the parties will be able to agree on the structure of the modified parenting plan. If not, I will settle the order at a telephone case conference to be scheduled through the Family Law Office.

COSTS

[44] The parties agreed that since much of the cost of preparing for the present hearing is also relevant to the balance of the motion to be heard on January 4, 2022, costs of the present motion would be reserved to that hearing.

GLUSTEIN J.

Date: 20210706

COURT FILE NO.: FS-21-20955-0000

DATE: 20210706

ONTARIO

SUPERIOR COURT OF JUSTICE

AMIT SONDHI

Applicant

AND:

RITIKA SONDHI

Respondent

ENDORSEMENT

Glustein J.

Released: July 6, 2021