Court File and Parties
COURT FILE NO.: FS-22-29037
DATE: 20220604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HARMENDER SINGH GILL
Applicant
– and –
BRINDERJIT KAUR KAILA
Respondent
Harmender Singh Gill, self-represented
Brian Burke & Crystal Heidari, for the Respondent
HEARD: May 31, 2022
M.D. Faieta J.
REASONS FOR DECISION
[1] The Respondent mother brings this urgent motion for a temporary Order for the return of the parties’ children and an order suspending the Applicant father’s parenting time pending the return of a long motion scheduled for June 30, 2022.
BACKGROUND
[2] The parties are the parents of two children NG, 3 ½ years old and SG, 1 ½ years old. Both parties are medical doctors. The Respondent works part-time as a gastroenterologist. The Applicant was a family physician. His medical license was revoked for professional misconduct in April 2021: Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49.
[3] The Respondent states that their eight-year marriage was marred by intimate partner violence. The parties separated in March 2022. At about that time the Applicant was charged with uttering a threat to cause death, uttering a threat to cause bodily harm and assault, all as against the Respondent. The Applicant’s bail conditions prohibit him from attending anywhere where the Respondent lives, works, or happens to be, or from communicating with the Respondent except through an agreed upon third party regarding the children.
[4] On March 25, 2022, the Applicant father was advised by counsel for the Respondent that she would not be returning to the marriage and would seek to have his parenting time supervised. On the same day, police attended at her home to check on the children following the Applicant’s report that she was abusing the children and planning to leave Ontario with the children. The police confirmed that they had no concerns about the children.
Events of March 29, 2022
[5] On March 29, 2022, the Respondent mother received a call from the daycare manager advising her that shortly after the Respondent had dropped off NG at daycare, the Applicant father picked up NG from daycare for a doctor’s appointment and had told her not to notify the Respondent that he had done so. The doctor’s appointment did not exist.
[6] Police were contacted. The Applicant told the police that he would return NG to his school by 3:00 pm. At 3:32 pm the daycare manager notified the Respondent that NG was not feeling well and that NG would not be returning to daycare that day or the following day. The Applicant did not return the calls of Arianne Allen, a worker from the Children’s Aid Society of Toronto (“CAST”). Nor did he return calls from police until later that evening. At 9:30 pm police advise the Respondent that the children were okay.
[7] On the evening of March 30, 2022, the Applicant returned the children to the Respondent.
Events of April 12, 2022
[8] On April 12, 2022, the daycare notified the parents that NG looked flushed and warm but that his temperature was normal. The daycare stated that NG did not need to go home. Without notice to the Respondent, the Applicant picked up NG from the daycare. The Applicant, through his lawyer, advised the Respondent he had been requested by the daycare to pick up NG, that NG had tested positive for COVID-19 and that NG would remain in his care until the end of the isolation period. The Applicant did not notify the Respondent that he had taken NG to the hospital. Hospital records obtained by the Respondent show that NG’s temperature was normal, his breathing was “unlaboured” and that he left without being seen by a doctor.
[9] On April 14, 2022, the Applicant delivered an email showing two positive COVID-19 rapid test results claiming those proved that NG was infected with COVID-19.
Case Conference
[10] An urgent Case Conference was held on April 14, 2022. The parties, represented by counsel, agreed that an urgent parenting time motion would be heard on April 28, 2022. The parties also agreed to a without prejudice plan for parenting time in the interim that would provide the Applicant father parenting time during the daytime, supervised by Renew Supervision Services (“Renew”), as follows:
• Tuesday April 19 – Friday, April 22, 2022, from 4:00 pm to 7:00 pm
• Saturday, April 22, 2022, from 10:00 am to 6:00 pm
• Monday, April 25, 2022 – Wednesday, April 27, 2022, from 4:00 pm
[11] After the Case Conference, the Applicant did not return NG to the Respondent as required by the Consent Order. NG was returned to the Respondent on April 18, 2022.
Re-Scheduled Urgent Motion
[12] The urgent parenting motion that was to be held on April 28, 2022, was, due to the illness of the Applicant’s counsel, the parenting motion was rescheduled to June 30, 2022. The Applicant is now self-represented.
[13] The Respondent states that the parties have “mostly continued to follow the pattern of the two-week schedule that was agreed to in Court, providing [the Applicant] with supervised parenting time with the children every weekday evening from 4:00 pm to 7:00 pm and on Saturdays from 10:00 a.m. until 6:00 p.m.”
Events of April 29, 2022
[14] On April 29, 2022, the Respondent mother spoke with Detective Denis Oh of the Toronto Police Service. He advised the Respondent that the Applicant had file five complaints with the police alleging, amongst other things, that she was calling the Applicant from a blocked number, that he has a video which shows the Respondent abusing the children. Detective Oh told the Respondent that he had cleared all five reports against her.
Events of May 5, 2022
[15] On May 5, 2022 the Toronto Police Service visited the Respondent around midnight. The police advised that the Applicant had made a further allegation of abuse against the Respondent in relation to a mark on SG’s finger, scratches on his stomach and a bump on his head. The police left without expressing any concern about SG being in the Respondent’s care.
[16] The Suspected Child Abuse and Neglect (“SCAN”) program at The Hospital for Sick Children reviewed the photographs of SG’s injuries (assuming that the photographs were of SG) and determined that the marks were consistent with a non-specific injury and were not typical of physical abuse
[17] On May 12, 2022, NG tested positive for COVID-19 while in the Respondent’s care. Renew cancelled the children’s visits with the Applicant so as not to expose their supervisor to the virus.
[18] The children’s visits with the Applicant father were scheduled to resume on May 17, 2022, but the Applicant declined to attend. He advised Renew that he was in the process of negotiating a lifting of the supervision requirement. A letter dated May 16, 2022, from Mr. Burke to the Applicant’s lawyer made it clear that supervision of the children while in the Applicant’s care was not negotiable.
[19] On May 18, 2022 the Applicant father picked up the children from the daycare with a supervisor from Renew at 4:00 pm for their scheduled supervised visit. The children were not returned to the usual exchange location at 7:00 pm. At 7:25 pm, the Respondent mother received a call from Joyann Oliver, a director at Renew, who advised that the Applicant refused to return the children on the grounds that they had COVID-19. Renew’s supervisor remained onsite. At 7:27 pm Ms. Oliver tried to contact the Applicant’s lawyer without success. At 7:50 pm, Ms. Oliver advised the Respondent that the Applicant stated that the children had high fevers and that he needed to seek advice from the Hospital for Sick Children. Ms. Oliver had advised the Applicant to return the children to the Respondent. At 8:12 pm, Ms. Oliver advised the Respondent that the Applicant had locked the supervisor out of his apartment and refused to allow her back in. Ms. Oliver advised the Applicant to return the children. After waiting outside for one hour, the supervisor left. Ms. Oliver advised the Respondent to call the police. The Respondent did so. At about 8:30 pm, the Applicant’s lawyer contacted the Respondent’s lawyer to advise that he planned to take SG to the hospital because of breathing troubles. The police attending the Applicant’s home at about 10:15 pm. The police advised the Respondent that the Applicant had promised to return the children on the following day.
[20] On May 19, 2022, at about Noon, the Applicant attended the Hospital for Sick Children with SG. The child was diagnosed with a fever and was given Tylenol. The Applicant father did not return the children to the Respondent mother on May 19, 2022, as he had promised. On May 19, 2022, Renew advised the parties that they had terminated their services to the Applicant father given the events of May 18, 2022. Their email states:
Given the events of May 18, 2022, Renew Supervision has made the decision to terminate services to Mr. Gill. On May 18th, Mr. Gill refused to return to Ms. Kaila and locked our supervisor out of his unit. Despite repeat telephone calls and text messages from our office, Mr. Gill refused to communicate with me, at one point, hanging the phone up, and failed to respond to any message in which I asked him to return the children or to allow our supervisor back into the unit.
[21] On May 19, 2022, at 10:30 am, the respondent was notified by the CAST that the Applicant claimed that there were scratch marks on SG’s scrotum and that she had struck SG. Later that day, the daycare manager advised the Respondent that they had not noticed any worrisome marks or scratches during the day when SG had been at school. At about 10:43 am, the Respondent received another call from The Hospital for Sick Children who advised that the Applicant had told them the day before that the Respondent had slapped both children and that NG had slap marks on his buttocks and scratches on his genitals. Dr. Schwartz at the SCAN program directed the CAST to attend at the Applicant’s home to take photos of the children. The Applicant refused to permit the CAST to take the photos without the presence of the police. Neither the police nor the CAST attended. The Applicant told the CAST that he would videotape the affected area and sent it. That never happened. The police contacted Renew. They provided their supervision notes from May 18, 2022, to the police. The notes made no mention of bruising or scratches on either child.
[22] The Respondent father has not returned the children to the Applicant mother. Further, during this period, the Respondent father has not returned the children to daycare nor did he take SG to his immunization appointment that was scheduled for May 27, 2022.
TBST Court
[23] On May 24, 2022, at To Be Spoken To Court, Justice Shore noted that all of the Respondent’s motion material had been filed and ordered that: (1) the motion would proceed on a peremptory basis, to both parties, on May 31, 2022; (2) the motion would proceed regardless of whether the Applicant was represented; (3) the Applicant father serve and file his responding material on or before May 27, 2022; (4) the Respondent mother serve and file her reply affidavit, if any, by Noon on May 30, 2022.
[24] On Sunday, May 29, 2022, at 11:09 pm, the Applicant father emailed a typed unsworn, unsigned document, purporting to be an affidavit, to the Respondent’s counsel. The Respondent’s “affidavit” was not filed with the Court and, in any event, it is inadmissible. As a result, there is no evidence before this Court on this motion from the Applicant in respect of the events described in this decision particularly as it relates to the withholding of the children on and after May 18, 2022 which precipitated this urgent motion.
CAST
[25] A letter dated May 30, 2022, from Nicole Horwitz, counsel for the CAS, was sent to the parties for purposes of being placed before this Court. The letter seeks to correct the Applicant’s misrepresentations regarding their involvement and states:
The purpose of this letter is to respond to paragraphs 17, 18, and 26 of Mr. Gill’s unsworn affidavit dated May 27, 2022 in order to ensure that the evidence pertaining to the Children’s Aid Society of Toronto (CAST’s) involvement and position is accurate. Ordinarily, CAST does not provide summary and/or position letters to courts in domestic proceedings but leaves it up to the parties and/or counsel to request CAST’s records and determine what, if anything, to put into evidence. In this case, however, a letter is being written as there is insufficient time for records to be obtained prior to tomorrow’s court date and this is the only means by which to ensure that the status of CAST’s involvement and its position is before the Court. ….
To summarize, CAST’s investigation with this family is in regard to the impact of post-separation conflict on the children and not the allegations pertaining to Ms. Kaila physically harming the children. The allegations pertaining to physical harm did not reach the stage of investigation, which was deemed unwarranted, due to all of the circumstances including the following facts:
On May 19, 2022, Ms. Arianne Allan, the CAST intake worker, contacted Mr. Gill after being advised that he (Mr. Gill) failed to return the children after a visit the night prior because of marks he located on one of them.
During Ms. Allan’s telephone call with Mr. Gill, he referenced the marks on the child; however, to date he had not provided Ms. Allan with photographs of them despite her requests. He has provided many reasons for failing to provide Ms. Allan with the photographs including that the email attaching the photographs was stuck in his outbox due to the size; however, even when Ms. Allan met with him in person and asked to see the photographs on his phone, Mr. Gill declined stating that she was not going to do anything with them and it was therefore pointless for her to see them.
On May 19, 2022, Mr. Gill advised Ms. Allan that Toronto Police Services (TPS) advised him that they would attend his home the following day with CAST; however, when Ms. Allan followed up with the Child, Youth & Advocacy Centre (CYAC) and review information provided by TPS to CAST, she ascertained that TPS attended Mr. Gill’s home on May 18, 2022 in response to his reporting that his child had been abused. When they arrived, Mr. Gill was on the telephone with Telehealth Ontario and advised that he had to take the child to the hospital for urgent medical attention as he was having trouble breathing. Mr. Gill advised that he would contact them the following day.
Ultimately, TPS determined that an investigation was not warranted after a separate officer called Mr. Gill, took down his concerns, and then spoke to the Renew Supervision worker who had reported that she had not observed any concerning marks on the child, and that when Mr. Gill asked the child about some scratches near his genitals, he (the child) advised that they were caused by another child whom he named.
On May 27, 2022, Ms. Allan spoke to the Renew Supervision worker who confirmed the same information to her.
Should the parties require CAST’s records, I suggest that a court order be obtained. …
ANALYSIS
[26] The purpose of an interim parenting order is to provide stability to the children and the parties pending trial. It has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331, para. 34.
[27] The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order: Gray v. Canonico, 2020 ONSC 5885, para. 48.
[28] The parties agreed to the parenting arrangement described in the Consent Order. It was intended by the parties that those arrangements would continue until the hearing of the long motion that had been scheduled to be heard on April 28, 2022 and when the hearing of that motion was postponed at the request of the Applicant, it was sensible for the parties to continue to follow those arrangements until the motion was heard.
[29] However, the Applicant sought to unilateral change the status quo that was reflected by the parenting arrangements in the Consent Order due to alleged illness of the child (on two occasions) and then due to allegations that the Respondent had abused the children.
[30] In assessing the best interests of the child, the Court must give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16(2) (“Divorce Act”); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2) (“CLRA”).
[31] Without seeking this Court’s approval, the Applicant chose to deny their very young children of their mother for 13 days and unilaterally jettisoned the professional parenting supervisors. To make matters worse, he justified his withholding of the children by asserting that the Respondent was abusing the children and engaged the authorities including the CAS, SCAN and the police. However, although requested to do so, the Applicant has done nothing to assist the authorities to verify what appears to be patently false assertions and, consequently, they have ended their investigations.
[32] The Applicant’s conduct raises serious concerns about his stability and the safety of the children in his care. I find that this is one of those very unusual and unfortunate circumstances where the best interests of the child is served by temporarily suspending the Applicant’s in-person parenting time pending the determination of the hearing of the long motion on June 30, 2022.
[33] The Respondent also seeks a police enforcement clause. While such order is rarely given to address potential future non-compliance with a parenting order, having considered the factors described by Justice Pazaratz in Patterson v. Powell, 2014 ONSC 1419, para. 24, I find that it is in the best interests of the children to order police enforcement.
[34] Notwithstanding the above restriction, given the conduct of the Applicant described above including his history of picking up the children from daycare on days not contemplated by their parenting plan and without notice to the Respondent or her approval, I find that it is in the children’s best interests to include a police enforcement clause having considered the factors that inform such decisions: Patterson v. Powell, 2014 ONSC 1419, paras. 11, 12 and 24.
[35] At the end of the hearing of this motion I ordered that the Applicant returned the children to the Respondent mother within two hours, and I assume that he has done so.
ORDER
[36] Pursuant to the Divorce Act and the CLRA, I find that it is in the children’s best interests to make the following temporary orders pending the determination of the motion scheduled for June 30, 2022 in respect of the relief sought by the Respondent’s Notice of the Motion dated April 19, 2022:
(1) The Applicant shall immediately return the children to the Respondent.
(2) Commencing May 31, 2022, the Applicant father’s parenting time with the children is suspended with the exception that he shall have Facetime or other similar video conferencing with the children for up to 15 minutes on Mondays, Wednesdays, Fridays and Sundays on condition that such parenting time: (1) is supervised by Renew Supervision, Brayden Supervision or any other similar professional supervisory service at the Applicant’s sole expense; (2) occurs at a time that is satisfactory to the Respondent.
(3) The Toronto Police, the Ontario Provincial Police, the Royal Canadian Mounted Police, any other law enforcement agencies and/or officials to whose attention an Order of this Honourable Court is brought, and any police authority having jurisdiction, shall enforce the terms of this Order, using such assistance and such reasonable force as is necessary in the circumstances and using all of the powers granted to them and without being confined by the time of day.
[37] In addition, I also Order that:
(1) By June 21, 2022, the Children’s Aid Society of Toronto shall deliver a copy of its records to the parties subject to the redaction of solicitor/client communications.
(2) The Respondent shall deliver her costs submission by June 10, 2022, and the Applicant shall deliver his costs submissions by June 17, 2022. Each costs submission shall be no greater than three pages, exclusive of a bill of costs.
Mr. Justice M.D. Faieta
Released: June 4, 2022
COURT FILE NO.: FS-22-29037
DATE: 20220604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HARMANDER SINGH GILL
Applicant
– and –
BRINDERJIT KAUR KAILA
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: June 4, 2022