COURT FILE NO.: FS-17-00089391-00
DATE: 2021 09 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bhupinder Khurmi v. Luvleen Kaur Sidhu
BEFORE: FOWLER BYRNE J.
COUNSEL: Thomas MacLennan, for the Applicant
Amanda Taerk, for the Respondent
HEARD: September 24, 2021, by videoconference
E N D O R S E M E N T
[1] The Applicant Father has brought a motion seeking to expand his parenting time with his daughter, G.K.S., who is now 4 years old.
[2] This couple was married for less than a year. The Respondent Mother was only 6 weeks pregnant when they separated. They have been litigating parenting time since. Property and spousal support issues have been resolved on a final basis. Only the parenting issues remain.
[3] Currently, the Father has access on Tuesday and Thursday for 4 hours and on the weekends for up to eight hours. There are no overnight visits and all parenting time must be supervised by one of the Father’s parents. Parenting time exchanges are to be done by the paternal grandfather, with the paternal grandfather doing all the driving.
[4] The Father is content that the child reside primarily with the Mother, but wants his access to be expanded so that he continues to have his mid-week access but that his access to the child is expanded to alternate weekends, overnight, and asks that the requirement of supervision be lifted.
[5] The Mother’s main concern is her belief that the Father has mental health issues that prevent him from providing a safe environment for their child. She points to a historical post on social media where the Father speaks of suicide. She also relies on earlier admissions by him of this post, and his earlier admission that he has drank to excess and hid it from his parents.
Background
[6] The parties disagree as to why there was not consistent parenting time prior to 2019. Nonetheless, on July 31, 2019, at a case conference, the parties consented to an order that the Father have parenting time for one hour twice a week during the week, and two hours on each weekend. The parenting time was to be at an indoor playground or at the Sikh Temple, and the Mother was to be present. The child was 2 years old at the time.
[7] Parenting time did not progress smoothly. On August 3, 2019, the Mother claims she saw messages on the Father’s Facebook account that she believed to be suicidal. She called the police to check on him. The police brought him to the hospital for an assessment. The Father denies he was suicidal.
[8] In order to assist the court, the Father produced the hospital reports for that day. The records are clear that the Father reported that he was looking at a website about committing suicide. He said he had thought about it. He also admitted that he was drinking and that he was going through a custody battle with his ex-wife. In the hospital notes, it states that the reason for his visit was “depression/suicidal/deliberate self harm”. It appears that the Father was assessed at the hospital several hours later where he reports that he has no suicidal thoughts or intentions, and that his words were misinterpreted.
[9] The clinical impression of the assessing physician at the hospital was that the patient was in a situational crisis given the difficulties in seeing his daughter. The physician notes that the Father adamantly denies that he is suicidal. The physician stated “...it is my impression that he replied to the [Facebook] post with short words causing one to believe that he may be a risk”. He gave the Father medical clearance to go home.
[10] Access continued until the COVID-19 pandemic, at which time the Mother unilaterally suspended the Father’s parenting time. The Father was required to bring a motion, which the motion was heard before McSweeney J. on June 19, 2020.
[11] When the matter was argued, the Mother raised concerns about the Father’s mental health, his drinking and two incidents, unrelated to mental health, that occurred during the Father’s parenting time. The Mother also indicated her desire for a professional assessment that the Father was able to parent properly and safely.
[12] After hearing arguments, McSweeney J. nonetheless expanded the mid-week address to four hours and the weekend excess to a maximum of eight hours. She did not feel overnight access was warranted at that time. Parenting transfers were to be done by the paternal grandfather and parenting time was to take place at the Father’s home supervised by at least one of his parents.
[13] In her endorsement, Justice McSweeney highlighted mental health concerns on the part of both parties. She notes the Mother’s admission of suffering from postpartum depression. Justice McSweeney also noted that earlier in the application the Father claimed to suffer from severe health conditions and was dependant on heavy medication, such as Zopiclone (sleeping aid) and Escitalopram (anti-depressant) to explain why he did what he did in relation to property issues. She also noted that he claimed he drank alcohol and hid it from his parents.
[14] In the end, Justice McSweeney did not believe that professionally supervised access was necessary. She noted the severe mistrust as between the parties. She also considered the Father’s offer to conduct access at his house and that he was agreeable to one of his parent’s being present when he had his parenting time.
[15] The Father was content with this access until December 9, 2020, when the Father brought a motion seeking to expand his parenting time to include overnight access and dispense with supervision. The Father’s motion was dismissed. In his reasons, Justice Fragomeni stated that the limited medical information provided by the Father did not warrant an expansion of parenting time or that it be unsupervised. He stated:
[15] It is important for the father to obtain a complete and detailed report setting out his current status as it relates to his mental health issues, if any, what medication he is on, if any, and if he is what the effect is of taking such medication as it relates to being able to care for the child. It may very well be that his family physician will identify no concerns, however, in order for this court to properly assess whether unsupervised expanded access is in the child's best interests this information is necessary.
[16] Justice Fragomeni further stated that he could not accept the Father’s position that there were no mental health issues, given the evidentiary record. No specific order was made that required the Father to obtain “a complete and detailed report” as outlined in para. 15.
[17] At a settlement conference that took place just over a month later, Justice Price noted that the settlement conference was being partially adjourned “…to enable Mr. Khurmi to produce a psychological report and drug testing.” In his endorsement, he also indicates that the information the Father did produce regarding his mental health did not satisfy the Mother. In particular, she sought a detailed assessment which included an assessment of the effects of his medication on his ability to care for the child. Justice Price made no specific order for medical documentation from the Father.
[18] Since late 2020, the Father has provided his OHIP claims file from 2012, the hospital records from his admission in August 2019, and the following evidence regarding his ability to parent the child properly and safely:
a) A letter from Dr. McDowall, a registered psychologist, who indicated that she has begun counselling with the Father to “help him stay grounded and focused throughout his divorce.” In particular, they were working on managing his stress of a high conflict divorce, manage his feelings of being victimized and the challenges of not seeing his daughter. Dr. McDowall opined that the Father was taking his mental health seriously.
b) A letter from Dr. B. Nanar, dated April 30, 2021, who is the Father’s family physician. Of note is the fact that Dr. Nanar has only been the Father’s family physician for approximately 4 months. In his letter, addressed to the Father’s counsel, he states that he was asked to provide the letter “…to report to the court regarding his current mental health issues, what medication he is on and if he is, what the effect is of taking such medication as it relates to caring for his three-year-old daughter.” In preparation of this letter, Dr. Nanar reviewed the Father’s OHIP claims history, the file of his former family physician and the hospital records from August 2019. He stated, “Based on my review of his medical records, our meetings, and my observations of him, he shows no signs or symptoms of mental illness. Mr. Khurmi is not taking any prescription medications.” Dr. Nanar also sent the Father for a toxicology screening on January 22, 2021, which came back negative for drugs or alcohol. Dr. Nanar concludes, “Mr. Khurmi does not appear to suffer from mental health issues. I have no concerns about his ability to care for his daughter based on allegations of mental illness or drug use.”
c) A letter from Mr. Paul Dilworth, a registered social worker and psychotherapist, dated July 14, 2021. Mr. Dilworth was retained by the Father’s counsel to “..determined that [the Father] does not have mental health issues neither is he using medication.” Mr. Dilworth reported meeting with the Father on five separate occasions, and discussed his childhood, experiences, education as well as his two marriages. After recording his observations and impressions, he concluded, “He does not appear to have any mental health issues and claims not to be using any psychotropic medication.” He then said, “I have only formed the conclusion that Bhupinder Khurmi provides excellent care to his daughter during his visits. She seems certainly not at any risk.”
Law
[19] When determining parenting time, the court shall first and foremost take into account the best interests of the child. In so doing, the court shall consider all of the factors related to the circumstances of the child, but shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s.24(1), (2) Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[20] Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.
[21] The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long-time solution: M. (B.P.) v. M. (B.L.D.E.), 1992 CanLII 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33.
[22] The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.
[23] When considering the best interests of the child, the new amendments to the Divorce Act require that the court consider whether there was any family violence and what the impact of that violence is upon the ability and willingness of any of the parties to care for and meet the needs of the children. When considering family violence, the court should consider, inter alia, the nature, seriousness, and frequency of the violence and whether the violence was directed towards the child or whether the child was exposed to it. Also, the court shall consider the physical, emotional and psychological harm or risk of harm to the child, the compromise of safety to the child or a family member, and any steps taken by a person who has perpetrated the violence to prevent further family violence and improve their ability to care for and meet the needs of the child.
Analysis
[24] The Mother has failed to satisfy the onus of showing that supervised access is necessary.
[25] The last incident of any mental health crisis on the part of the Father was in August 2019, which the doctor at the time indicated was a situational crisis. Even if the Father was suicidal, and I am not making a finding either way, it was over two years ago, with no further report of such behaviour.
[26] In addition, while the Mother’s Application contains allegations of family violence, there are no such allegations being put forth at this time. While it may have been an issue during the relationship, and again, I am not making a finding either way, it does not appear to be an issue now.
[27] Also, I have considered the Father’s previous statements regarding his use of medication to explain his previous actions in relation to the property matters, and his statement of drinking too much during his criminal trial. Again, these statements are historic, and no evidence has been provided to show that these situations persist.
[28] The Father has produced a OHIP claims file since 2012. He has provided a letter from his family physician, a psychotherapist and a psychologist. All of these individuals opine that the Father is not suffering from a mental health illness, that he is not abusing drugs or alcohol and that his daughter is not at risk while with him. The Father admits stress and anxiety arising from these proceedings, but he has been addressing same with a counsellor.
[29] The child is now four years old. She has had consistent access with her father for some time, and she is at the age that additional access, expanded to overnight, is warranted. It would be appropriate though, to gradually increase the access so that the child can become accustomed to this new schedule.
Costs
[30] The Applicant was successful and is entitled to his costs. Both parties served offers to settle. The offers are not so far apart, both offering overnight access, albeit with slightly different terms. The Mother’s offer though, is less than what was granted.
[31] Even though the Mother did offer overnight access, I find that overnight parenting time would not have been offered without this motion being brought, and the Father should have his partial indemnity costs. The amount though, should be reduced to reflect what is reasonable and proportionate in the circumstances.
Conclusions
[32] For the foregoing reasons, I make the following orders:
a) Leave is granted to the Respondent Mother to file her affidavit sworn September 20, 2021.
b) The child shall reside primarily with the Mother;
c) The Applicant Father shall have parenting time with the child, unsupervised, as follows:
every Tuesday to Thursday from after school until 7:00 p.m.; the Father shall pick up the child from school and return the child to the Mother’s home by the specified time; the Mother shall advise the school of this arrangement;
When school is not in session, the Tuesday and Thursday parenting time will be from at 3:00 p.m. to 7:00 p.m.
for the next four weekend parenting visits, from 10:00 a.m on Saturday until the Sunday at 6:00 p.m.;
Following these four weekend visits (in approximately eight weeks’ time), from after school on Fridays (or 3:00 p.m. when school is not in session) until Sunday at 6:00 p.m.; and
Facetime access no less than twice per week between 7:00 and 8:00 p.m.
d) When the child is with the Father overnight, the Father will facilitate facetime communication between the child and the Mother before bedtime;
e) During parenting time and for 12 hours before, the Father shall abstain from consuming alcohol or non-prescription drugs;
f) Each parent shall notify the other in the event the child sustains a serious injury;
g) Each parent shall provide their cell number to the other, if they have not already, and shall keep their cell phone with them when exercising their parenting time;
h) Neither party shall travel with the child outside of the province of Ontario without the written consent of the other party or court order;
i) If either party travels with the child more than 200 km from their home, they will notify the other party, indicating their destination and when they will be returning;
j) Both parties will ensure that they use the appropriate car seats when transporting the child by automobile;
k) This matter is adjourned to a trial management conference fixed for June 21, 2022, 3:30 p.m. (please note the change of time);
l) For this trial management conference, the parties are to serve and file the following:
i. A Trial Scheduling Endorsement Form, jointly prepared by counsel;
ii. Draft order; and
iii. Offer to settle
m) The Mother shall pay to the Father his costs of this motion in the sum of $1,000, payable in 30 days.
Fowler Byrne J.
DATE: September 27, 2021
COURT FILE NO.: FS-17-00089391-00
DATE: 2021 09 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bhupinder Khurmi v. Luvleen Kaur Sidhu
COUNSEL: Thomas MacLennan, for the Applicant
Amanda Taerk, for the Respondent
ENDORSEMENT
Fowler Byrne J.
DATE: September 27, 2021