COURT FILE NO.: FS-17-89391-00
DATE: 2022 11 16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bhupinder Khurmi
Applicant
– and –
Luvleen Kaur Sidhu
Respondent
Stephanie Tadeo and Kulvinder Deol, Lawyers for the Applicant
Amanda Taerk, Lawyer for the Respondent
HEARD: October 5, 6, 7, 11, 12, and 13, 2022
Agarwal J
REASONS FOR JUDGMENT
I. Introduction
[1] The applicant Bhupinder Khurmi and the respondent Luvleen Kaur Sidhu seek an order for the exercise of decision-making responsibility for G.S., their 6-year-old child. The parties have resolved all of the other issues between them, including parenting time.
[2] G.S. was born into conflict. Her parents’ short marriage ended in June 2016, after only 7 months. Over the last few years, she has been the subject of several police interventions and children’s services investigations. Her parents have litigated over and over again. Despite all of this conflict, G.S. is a smart, thoughtful, happy, and loving child. She deserves the peace that will hopefully come from this decision.
[3] Khurmi seeks shared decision-making responsibility for all areas of G.S.’s well-being. Sidhu seeks sole decision-making. Under the Divorce Act, RSC 1985, c 3, s 16(1), the court must consider “only the best interests of the child of the marriage in making a parenting order....” The court has a wide discretion to craft a tailor-made decision-making responsibility framework that supports the best interests of the child, considering the unique facts of each case.
[4] A lot of the conflict between Khurmi and Sidhu revolved around parenting time, which was made worse by their tendency to make unilateral decisions that were not in G.S.’s best interests. As G.S. has gotten older, Khurmi and Sidhu have developed effective communication and cooperation in some areas, despite their differences.
[5] In considering the factors relevant to G.S.’s best interests, I believe that G.S.’s physical, emotional, and psychological safety, security, and well-being are best promoted by an order that:
(a) Sidhu shall have sole decision-making responsibility for G.S. for (i) health, and (ii) education;
(b) Sidhu and Khurmi shall have shared decision-making responsibility for (i) culture, language, religion and spirituality, and (ii) significant extracurricular activities; and
(c) each of Khurmi and Sidhu has exclusive authority to make, during that time, day-to-day decisions affecting G.S. during their parenting time; and
(d) Khurmi has a right to request from Sidhu information about G.S.’s well-being, including about her health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.
[6] I discuss the particulars of my order below.
II. Background
[7] Khurmi owns and operates a small business. Sidhu works as a real estate agent. Khurmi and Sidhu share a culture, language, and religion—they are both South Asian and practice Sikhism.
[8] Khurmi and Sidhu married in June 2016. Khurmi was charged with assaulting Sidhu in January 2017. The parties separated. At the time, Sidhu was pregnant with G.S. Khurmi was later acquitted.
[9] Both parties have, in the past, suffered from mental health challenges. Khurmi advised the court that he was taking medication to treat depression and insomnia, and that he hid his drinking from his parents. Sidhu suffered from post-partum depression. Today, neither Khurmi nor Sidhu are suffering from any mental health challenges.
[10] Khurmi started this proceeding in May 2017, before G.S. was born. At first, the legal disputes between the parties revolved around equalization of the marital property. G.S. was born in September 2017. Since then, there have been several court appearances, mostly related to Khurmi’s requests for expanded parenting time.
[11] G.S. lives with Sidhu. This court ordered that Khurmi shall have unsupervised parenting time three times per week, including one overnight visit. There is no temporary order regarding decision-making.
[12] Khurmi lives with his parents, Sukdharshan Singh Khurmi and Satwant Kaur Khurmi. Sidhu lives with her parents, Harjit Singh Sidhu and Baljit Gill, and her brother, Gurkirat Sidhu.
III. Legal Test
[13] This court may make an order for the exercise of decision-making responsibility for any child of the marriage, on application by either spouse (Divorce Act, s 16.1(1)). Decision-making responsibility means making significant decisions about a child’s well-being, including for: (a) health; (b) education; (c) culture, language, religion, and spirituality; and (d) significant extracurricular activities (s 2(1)).
[14] The court may allocate decision-making responsibility for the child, or any aspect of that responsibility, to either spouse or to both spouses (s 16.1(4)(b), 16.3)). Decision-making authority helps ensure that a parent’s relationship with their child is not marginalized. See Rigillo v Rigillo, 2019 ONCA 548 at para 12.
[15] In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” See McBennett v Danis, 2021 ONSC 3610 at para 96. See also RG v JG, 2022 ONSC 1678 at paras 117-122, and KM v. JR, 2022 ONSC 111 at paras 46-62.
[16] For the court to grant joint decision-making in some or all areas, there must be some evidence before the court that the parties are able to communicate effectively in the areas under consideration for the sake of the child despite their differences. The best interests of the child will not be advanced if the parties cannot make important decisions about the child under a joint decision-making arrangement. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. See McBennett, at para 97.
[17] In cases involving very young children, the court must account for the fact that the child is unable to easily communicate their physical, emotional, developmental, and other needs. Accordingly, the need for effective communication between the parties in a joint decision-making arrangement will be particularly pressing in those cases. See McBennett, at para 97.
[18] The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is key to determining whether an order for joint decision-making in some or all areas is appropriate. See McBennett, at para 97.
[19] A party who has not been granted decision-making responsibility for “significant decisions about a child’s well-being” nonetheless supports the child’s life and retains a decision-making role in daily issues that can be equally important to the child’s overall well-being (s 16.2(2)). This section protects children and parents who have parenting time with each other from attempts by the party who has been granted decision-making authority respecting significant decisions to intrude upon or marginalize the role of the other parent. See McBennett, at para 80.
[20] Section 16.4 establishes the right of parents who have been allocated parenting time to request and receive information about the child’s well-being, including their health and education.
[21] Section 16(1) of the Divorce Act directs that the court shall take into consideration “only the best interests of the child of the marriage in making a parenting order….” Section 16(3) sets out several factors that the court must consider in carrying out the “best interests” analysis:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing, and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) 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;
(i) 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;
(j) any family violence and its impact; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
[22] In considering these factors, the court is required to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being” (s 16(2)).
[23] The list of factors is not a “checklist to be tabulated with the highest score winning” (see Van Ruyven v Van Ruyven, 2021 ONSC 5963 at para 47). The “primary consideration” recognizes that there may be conflicts in attempting to weigh the enumerated criteria. Any such difficulties should be resolved by ensuring that the child’s physical, emotional, and psychological safety, security, and well-being are promoted. See McBennett, at para 82.
[24] In determining what is in the best interests of the child, the court shall not consider the past conduct of any person unless the conduct is relevant to the exercise of their decision-making responsibility (s 16(5)). In cases of family violence, particularly spousal violence, it is “crucial that the court consider whether a co-operative parenting arrangement is appropriate” (see Bell v Reinhardt, 2021 ONSC 3352 at para 15). Khurmi’s alleged assault led to the parties’ separation. Sidhu does not rely on this incident or its impact to argue for sole decision-making responsibility—the parties adduced no evidence on the alleged assault.
IV. Preliminary Issue: Admissibility of WhatsApp Messages
[25] Khurmi sought to put into evidence messages that he said were between him and Sidhu from the WhatsApp Messenger app. Khurmi exported these messages into a word processing document using WhatsApp’s internal tool. Sidhu opposed their admission into evidence because she cannot confirm whether the messages allegedly from her are authentic given the passage of time and number of messages. She argued that a word processing document can be easily manipulated. In R v Aslami, 2021 ONCA 249 at para 30, the Court of Appeal warned trial judges “to be very careful in how they deal with electronic evidence of this type”:
There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.
[26] The WhatsApp messages, having been exported into a word processing document, are too unreliable to be admissible. They can be manipulated and Sidhu cannot be expected to confirm, years later, that she sent them. They also aren’t probative. Khurmi says that the messages will show that he and Sidhu had an intimate relationship after their separation. He argues that the messages will show that Sidhu is not credible and that any conflict between them only emerged when he and Sidhu ended their relationship. But Sidhu admits to trying to reconcile with Khurmi. Evidence about the length and scope of their reconciliation will not help me decide what is in G.S.’s best interests for decision-making responsibility.
[27] The parties adduced several other messages from BlackBerry Messenger, iMessage, and SMS text messaging. These messages were either exported using a forensic tool or the parties filed screenshots of them, which made them reliable.
V. Credibility and Reliability
[28] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20 at para 82; R v HC, 2009 ONCA 56 at para 41.
[29] Khurmi and Sidhu both testified at trial. The parties agreed that the evidence of three of the grandparents could be given by affidavit.
[30] Despite the parties’ differences, I believe they were all telling the truth. There was a logical flow to their evidence. Their oral evidence rarely contradicted the documentary evidence. Each of the witnesses generally confirmed the evidence of other witnesses on most events.
[31] To the extent there were any differences, I believe it was because the witnesses all have a personal interest in the outcome and, as such, they downplayed events that prejudiced them and highlighted events that favoured them. Khurmi and Sidhu were, at times, evasive about events that embarrassed them. But they were also candid and capable of making concessions.
VI. Analysis
A. Overview
[32] Sidhu and Khurmi love G.S. very much. Their short relationship, however fraught it was, has produced an extraordinary little person who is, obviously, the centre of their worlds. In Sidhu and Khurmi, G.S. has two loving, hard-working parents—people who have uprooted their lives to make their homes in a foreign country, supported by their family of origin, who all appear to love G.S. very much as well. That fierce love has morphed into conflict, which has been highly disruptive to Sidhu and Khurmi and, at times, traumatic for G.S.
[33] But Sidhu’s and Khurmi’s actions must be viewed in context—they are new parents, facing all of the stressors and anxieties that come with raising a child for the first time, and doing so separately while they grieve the end of their marriage. And they have had to do all this hard work against the backdrop of a once-in-a-lifetime pandemic.
[34] As a result, their actions have been driven by an overzealous desire to keep G.S. “safe”. They have, at times, made poor choices. As elaborated on below, they have used the police and children’s services as tools to further their own needs and, in doing so, made matters worse than they should be. But, in their communications and in their presentation at trial, I see two people working hard to give G.S. everything she needs and desires in this world.
[35] I believe it is in G.S.’s best interest if Sidhu is the sole decision-maker for her health and education—G.S.’s doctors and schools need to know who is “in charge”. The evidence shows that Khurmi’s disproportional anxiety about G.S.’s health is actually harming her and is sending mixed messages to the other adults in her life.
[36] At the same time, Khurmi is key to G.S.’s life. He shall retain a decision-making role for daily issues that can be equally important to G.S.’s overall well-being while she is having parenting time with him. Khurmi shall have the right to administer standard over-the-counter medications, care, and treatments for G.S.’s routine medical and health-related issues or concerns while she is in his care. Khurmi shall have the right to request information about G.S.’s well-being, including about her health (including health records, such as lab results, publicly funded dispensed medications, digital images, like x-rays and MRIs, and hospital discharge summaries) and education (including copies of school notices and report cards, and he has a right to attend G.S.’s school, including her school activities, parent-teacher interviews, volunteer opportunities, school trips, meetings with teachers and other school employees, and special events).
[37] But Khurmi shall not make decisions about the care and treatment of G.S.’s physical, emotional, or psychological well-being. He shall not consult pediatricians or family doctors, dentists, optometrists, psychologists, psychiatrists, or other medical specialists without Sidhu making the decision.
[38] Before making a significant decision about G.S.’s health or education, Sidhu shall advise Khurmi in writing of the issue to be determined, consult him, and provide him with at least 7 days to provide his input, unless an earlier response is necessary because of the time-sensitive nature of the issue.
[39] I also believe it is in G.S.’s best interest that Khurmi and Sidhu together make important life decisions about her culture, language, and faith and, as she gets older, the significant extracurricular activities that will define who she is and will inevitably give her pleasure and fulfilment.
[40] To be clear, I am not ordering parallel parenting, where each party is given separate, defined areas of parental decision-making, independent of the other, or where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See Campbell v Campbell, 2017 ONSC 3787 at para 45.
B. Relevant Facts
1. Early Years—September 2017 to July 2019
[41] Under Khurmi’s initial bail conditions, he could not communicate directly with Sidhu. The bail conditions were varied when G.S. was born.
[42] Even then, Khurmi didn’t see G.S. very often. Though the parties disagreed on how often and said the other party was the cause, there is no dispute that Khurmi’s parenting time was short, supervised, and sporadic.
[43] The Peel Regional Police and Peel Children’s Aid Society first became involved in February 2018. Khurmi called the police after Sidhu said he could not see her (and, effectively, G.S.). CAS became involved again in June 2018 after it received anonymous letters accusing Sidhu of neglect. Sidhu believes Khurmi sent these letters. Khurmi denies doing so.
[44] As I discuss below, the police and CAS have been involved with this family several times. Since G.S. was born, the police have never laid charges against either Khurmi or Sidhu. In every case, CAS has closed its investigation as unverified.
[45] After Khurmi was acquitted in June 2018, the parties tried to reconcile. Khurmi saw G.S. more often, under Sidhu’s supervision. During this period, there was no parenting plan or temporary parenting order. Khurmi took a parenting course, showing an interest in being an involved father. Eventually, the parties’ efforts at reconciliation ended.
2. The First Parenting Order—July 2019 to March 2020
[46] Eventually, Khurmi moved for a temporary order for parenting time and contact. In July 2019, Justice Fowler Byrne ordered, as consented to by the parties and on a without prejudice and temporary basis, that Khurmi should have supervised parenting time with G.S. three times per week at an indoor playground or Sikh gurdwara. Khurmi’s parents could also have contact, though they had to be supervised by Sidhu’s father.
[47] In August 2019, Khurmi was taken to Brampton Civic Hospital by the police after Sidhu said Khurmi might commit suicide. She saw a comment Khurmi made in a Facebook group that she interpreted to mean that he might harm himself. Khurmi says his post was only intended to be supportive of another Facebook user who was threatening self-harm. The hospital discharged Khurmi that same evening. It had no concerns that he might harm himself.
[48] Even then, Sidhu unilaterally cancelled Khurmi’s parenting time that week because of her concerns for his mental health. CAS investigated, ultimately closing its file as unverified.
[49] Khurmi’s parenting time started again. There were no incidents at many of these visits. In some cases, the parties seemed to communicate and cooperative effectively. In other cases, minor matters turned into disputes, but the parties resolved many of these disagreements without incident.
[50] But, once again, in December 2019, the police and CAS were called. During a scheduled parenting time at an indoor playground, both Sidhu and Khurmi called the police. Sidhu alleged that Khurmi was “acting strange” and swore at her brother. Khurmi alleged that Sidhu’s brother gave him the finger. No one was charged. CAS closed its file.
[51] Following this incident, the parties kept parenting time as ordered by the court.
3. COVID Disrupts Khurmi’s Parenting Time—March 2020 to June 2020
[52] In March 2020, Ontario entered the first of several lock-downs because of the COVID pandemic. Under the public health restrictions, indoor playgrounds and temples were closed.
[53] On March 17, 2020 (the same day that the Ontario government declared a provincial state of emergency under the Emergency Management and Civil Protection Act, RSO 1990, c E.9), Khurmi insisted on his scheduled in-person parenting time at the gurdwara. Sidhu refused because the gurdwara was closed under the emergency order.
[54] Khurmi reported the matter to the police—he said he was suspicious why Sidhu was refusing in-person parenting time. The police asked Sidhu to bring G.S. to the police station for a wellness check, which she did. The police and CAS had no concerns.
[55] Following this incident, G.S.’s parenting time with Khurmi was virtual. Starting in May 2020, G.S. had in-person parenting time four times with Khurmi, all outdoors. Again, there were no incidents at these visits.
[56] But, then, a seemingly minor dispute again quickly escalated into conflict involving the police and CAS. On May 28th, Sidhu said the weather was unsuitable for in-person parenting time, and unilaterally cancelled Khurmi’s visit. Khurmi suggested a visit in his car or inside one of their houses. Sidhu rejected these options. Khurmi nonetheless drove to Sidhu’s house, insisting the weather was fine for a visit. Sidhu eventually called the police because Khurmi was refusing to leave. G.S. witnessed the police interview of Sidhu. The police ultimately defused the situation.
[57] There is a dispute in the evidence about how this incident ended—the police report says the parties agreed that Khurmi should come back for his next scheduled visit on May 31st but the CAS notes say that the police told Khurmi not to come back. CAS closed its file.
[58] Following this incident, Sidhu again unilaterally ended G.S.’s in-person parenting time with Khurmi (she continued to offer virtual visits). On May 31st, Khurmi insisted on his scheduled in-person parenting time and, once again, drove to Sidhu’s house even though he was unwelcome. This time, Khurmi brought a friend with him (as a “witness”). This alarmed Sidhu, both because of the COVID risk and because she didn’t know who this person was. The text messages between Khurmi and Sidhu are heart-wrenching—he is begging to see G.S. in person and she is begging him to leave her property. Sidhu says she didn’t call the police this time because she didn’t want G.S. to see Khurmi being arrested. Khurmi eventually left.
[59] The early days of the COVID pandemic were scary for everybody. The government ordered businesses and public buildings to close. Social gatherings were restricted. Hospitalizations were growing. People were dying. Thus, it was reasonable, in hindsight, for Sidhu, in those early days of the pandemic, to restrict in-person visits until she had more guidance.
[60] That said, she made no effort to accommodate any alternatives (such as outdoor visits or in another indoor location) until May 2020. On May 25th, the court denied Khurmi’s request for a case conference. But the court’s endorsement warned Sidhu about “unilateral suspensions of access by one parent, in the face of an existing court order.” Sidhu didn’t heed that warning. Her failure set the stage for the escalation of this conflict, which Khurmi exacerbated by harassing Sidhu.
4. The Second Parenting Order—June 2020 to September 2021
[61] The parties litigated a second parenting time motion in June 2020. Sidhu asked for an order that Khurmi’s in-person parenting time be at a supervised access centre—she was questioning his mental health. Khurmi asked for unsupervised in-person parenting time, including overnight parenting time. The court made a temporary order that Khurmi should have in-person parenting time three times per week at his home, supervised by one of his parents.
[62] Once again, G.S.’s parenting time with Khurmi, under the June order, proceeded relatively uneventfully through Summer 2020.
[63] In late September 2020, Sidhu suggested that Khurmi might have engaged in physical discipline and inappropriate touching, and exposed G.S. to inappropriate images. The basis for this allegation was that G.S. “smooshed” Sidhu’s face “romantically”. G.S. also seemed to suggest that Khurmi had tied her hands. G.S. said that Khurmi told her, “don’t tell mommy”. Khurmi denied tying G.S.’s hands or kissing her inappropriately. Sidhu reported this incident to CAS.
[64] Sidhu later called CAS, and “recanted her allegation that father may be responsible for molesting” G.S.
[65] Sidhu says that she never intended to accuse Khurmi of molestation—she didn’t know what the word meant when CAS used it with her. She says she looked up the meaning of the word after talking to CAS and called CAS right away to clarify the purpose for her call. Though Sidhu may not have intended to accuse Khurmi of sexual assault or abuse, she definitely suggested that Khurmi was acting improperly. In any event, CAS eventually closed the file as unverified.
[66] In December 2020, Khurmi renewed his motion for expanded parenting time. The court dismissed the motion on the grounds that Khurmi had filed insufficient evidence to rebut Sidhu’s concerns about his mental health.
[67] For the most part, Khurmi and Sidhu managed co-parenting G.S. and the parenting time without issues. There were some conflicts around health and education decisions but there were no withholding incidents like during the early days of the pandemic.
5. The Third Parenting Order—September 2021 to Present
[68] In September 2021, Khurmi again moved to expand G.S.’s parenting time with him. He asked for unsupervised and overnight parenting time. The court granted Khurmi’s motion. Though Sidhu argued, again, that Khurmi had mental health issues, Khurmi produced evidence from his family doctor, a psychotherapist, and a psychologist that he does not have any mental illness or substance abuse issues.
[69] Again, for the most part, Khurmi and Sidhu seemed to co-parent G.S. successfully after this order. Again, there were some conflicts around health decisions, as discussed below.
6. Decision-Making Around Health
[70] Khurmi has raised several concerns about G.S.’s health. For context, Khurmi, Sidhu, and G.S. were all under the care of Dr. Wajahat Hussain Rafiqi, a family doctor.
i. Speech Development
[71] In May 2020, Khurmi brought up G.S.’s speech development. He asked Sidhu to complete some checklists about G.S.’s growth from ErinoakKids Centres for Treatment and Development. Khurmi also consulted Dr. Louise Whitten, a speech pathologist. Sidhu, at first, refused to complete any forms as neither she nor Dr. Rafiqi had any concerns about G.S.’s speech.
[72] Sidhu says that to avoid another CAS investigation, she decided to placate Khurmi. She completed the ErinoakKids checklists. She also spoke to Dr. Whitten. Dr. Whitten’s notes state that Sidhu rejected Dr. Whitten’s request to assess G.S. Sidhu says that Dr. Whitten’s notes are wrong: Dr. Whitten asked if Sidhu would start a treatment program for G.S., which Sidhu rejected as unnecessary. Dr. Whitten didn’t testify.
[73] Finally, later that month, Sidhu engaged Kelyn Montano, a speech pathologist, to conduct an evaluation of G.S. Ms. Montano concluded that no speech and language intervention was recommended. This report was provided to Khurmi.
ii. Doctor’s Visits
[74] In March 2021, Sidhu and Khurmi had a series of minor disputes about G.S.’s health. Khurmi observed that G.S. had a pain in her nose—he asked Sidhu to put a humidifier in G.S.’s room and use oil on her nose. Sidhu responded that she took G.S. to the doctor, who said there were no issues and recommended saline gel instead of oil. A few days later, Khurmi observed that G.S. seemed dehydrated. Sidhu didn’t respond.
[75] Later that month, Khurmi observed that G.S. had flu-like symptoms. He said he wanted to book a doctor’s appointment. Sidhu responded that she didn’t see any symptoms, but that she would book a doctor’s appointment if necessary. Khurmi repeatedly insisted on taking G.S. to a doctor. Sidhu suggested seeing Dr. Rafiqi but Khurmi didn’t necessarily agree. Eventually, the parties’ lawyers got involved. Khurmi’s lawyer clarified that Khurmi was seeking involvement in “all aspect’s of [G.S.’s] life”, including doctor’s appointments. He also confirmed that Khurmi would only see Dr. Rafiqi for G.S.
[76] In April 2021, Khurmi raised G.S.’s possible dehydration again. He continued to pressure Sidhu to take G.S. to the doctor. Sidhu told him that she had consulted a doctor and there were no concerns.
[77] In November 2021, Sidhu noticed that G.S. had bruised knees after a parenting time visit with Khurmi. Sidhu’s innocuous question led to a firestorm of text messages from Khurmi, both defending his actions and accusing Sidhu of leaving G.S. alone. He also, as with other health issues, insisted that Sidhu take G.S. to the doctor.
[78] Khurmi repeated this conduct in January 2022. G.S. did not attend virtual school because she was sick with a cold. Sidhu booked a virtual doctor’s appointment for later that day. When she advised Khurmi, he responded with another barrage of text messages demanding that Sidhu contact the doctor and give him information, and accusing Sidhu of misleading him. He implied that Sidhu was medicating G.S. because of Sidhu’s work schedule or to avoid virtual school.
[79] Around two weeks later, something similar happened again. G.S. hurt her nose at school. Sidhu took her to a walk-in clinic later that evening. She informed Khurmi at the same time. The doctor didn’t find anything wrong. Khurmi repeatedly texted Sidhu, questioning when Sidhu learned about the injury and why she didn’t tell him until later that day.
iii. COVID Exposure
[80] In May 2021, BrightPath, G.S.’s day care centre, advised parents that someone in G.S.’s classroom had COVID. This notice prompted yet another dispute between Khurmi and Sidhu. Following the day care centre’s guidance, Sidhu advised Khurmi that she and G.S. would be self-isolating, which would impact G.S.’s parenting time with Khurmi. Khurmi sent Sidhu several text messages that appear to be controlling—telling her to postpone a meeting with her lawyer, chastising her for going on a walk the day before, advising her not to share ice cream with G.S., and telling her to get vaccinated as soon as possible.
[81] Khurmi did not seem to believe Sidhu’s position that she and G.S. needed to self-isolate. He hounded the day care for clarification on whether isolation was necessary. BrightPath confirmed to him that it was recommending isolation until further information from public health authorities.
iv. Tooth Chip
[82] In late July 2021, following a parenting time visit with Khurmi, Sidhu noticed that G.S.’s teeth were chipped. She took G.S. to Brampton Civic Hospital. Khurmi met her there. G.S. was treated with pain-killers and discharged.
[83] Following the incident, Khurmi insisted on taking G.S. to see a dentist. Sidhu’s response was that the hospital doctors recommended seeing a dentist only if G.S. didn’t feel better after a few days. Khurmi nonetheless consulted a dentist himself. Then, he took G.S. for x-rays and a checkup without telling Sidhu. Sidhu was upset that Khurmi didn’t consult her about the dentist. Given that G.S. resides with her and there was no emergency during Khurmi’s parenting time, her view was that she should have input about whether G.S. sees a dentist.
v. Hair Pulling
[84] In January 2022, Khurmi sent Sidhu a long email about “Issues to address”. In this email, he identifies several parenting issues (e.g., bedtime, screen time, and nighttime milk). Each issue is followed by a “suggestion”. At trial, Sidhu said that these “suggestions” were really dictates from Khurmi. Though Sidhu’s method and language could have been better, I believe his evidence that he was trying to show that he was an engaged and involved father by identifying issues and proposing solutions.
[85] That said, the email raised two other controversial issues. First, Sidhu continued to demand real-time updates on G.S.’s health, even regarding minor matters. Khurmi’s demands are unreasonable. Sidhu is working full-time. She is parenting G.S. most of the time. These are demanding roles. As the primary caregiver, Sidhu needs to be trusted to make proportional decisions about G.S.’s health and well-being. Not every cough or scraped knee needs a doctor’s visit or further check-ups. Though Khurmi is right to want information about major issues (for example, hospital visits), it’s unreasonable for him to demand real-time information about G.S.’s health every time she falls down or has a runny nose.
[86] Second, Khurmi observed that G.S. was “pulling her hair”. He wanted to engage a child therapist. In response, Sidhu discussed the matter with G.S.’s teacher, who suggested it was a “comfort thing” that kids do. Sidhu’s lawyer suggested perhaps G.S. was adjusting to overnight parenting time at Khurmi’s house by pulling her hair. As a result, Sidhu saw no need to see a therapist. Even then, Sidhu texted Khurmi to try to discuss his concern.
[87] In response, Khurmi sent photos of G.S. that he says showed bald spots. He threatened to take matters “into my hands” if Sidhu didn’t respond with “next steps”. Khurmi then followed up with G.S.’s teacher. He believed that Sidhu gave dolls to G.S. so G.S. could pull the dolls’ hair. G.S.’s teacher told Khurmi the same thing she had already told Sidhu: pulling hair is a habit.
[88] Undeterred, Khurmi then sought out a referral to a pediatrician, Dr. Sangeet Kathuria, from a walk-in clinic. At trial, he said that he was unhappy with Dr. Rafiqi. Sidhu objected to this referral being made without her input. Khurmi’s decision to sidestep Dr. Rafiqi is also questionable.
[89] Khurmi then unilaterally scheduled an appointment with Dr. Kathuria. She recommended bloodwork before the appointment. Sidhu made clear that she did not consent to consulting Dr. Kathuria or to G.S. having bloodwork.
[90] Khurmi also consulted a therapist. The therapist advised Khurmi that if Khurmi didn’t report this matter to CAS, he would. As a result, Khurmi reported the issue. At trial, Sidhu relied on this report as yet another example of Khurmi engaging CAS. CAS had not been involved for some time, and I accept Khurmi’s evidence that he felt he needed to report the matter given the therapist’s position. CAS eventually closed its file as unverified.
[91] This entire episode was stressful and traumatic for G.S. Sidhu testified that every time G.S. touched her hair, she would say she was not pulling it. G.S. asked to wear a cap to school to hide her hair. Khurmi exacerbated matters by videotaping her head. G.S. would say that Khurmi thinks she is bald. G.S.’s teacher reported that G.S. had a rough day (difficulty listening and not participating), which Sidhu says relates to the allegations of hair pulling. Sidhu was very emotional when testifying about the effect of this issue on G.S. I accept that Khurmi’s conduct was harmful to G.S.
7. Decision-Making Around Education
[92] Khurmi has also raised several concerns about G.S.’s education. In November 2020, Sidhu advised Khurmi that she was enrolling G.S. in BrightPath for a “few hours a week”. Though she didn’t specify the location, she did say it was “close to both parents’ residence”. There are several BrightPath centres in Brampton. Khurmi didn’t ask any follow-up questions. On January 5, 2021, Sidhu notified Khurmi again that G.S. was starting at BrightPath the next day. Khurmi argues that Sidhu intentionally hid information about the day care from him—he didn’t know which location, so he had to call around to find out where G.S. was enrolled. Khurmi’s perspective is unreasonable—he could have followed up with Sidhu to find out the location or get information about the day care centre, but he never did.
[93] The enrollment forms list both Sidhu and Khurmi as G.S.’s parents. At trial, Khurmi argued that Sidhu only listed her family as emergency contacts, thereby preventing the day care centre from contacting him. This argument is meritless—Khurmi is listed as a primary contact. Sidhu listed her immediate family members as emergency contacts because they all live in the same home, and Khurmi’s parents were in Canada on visitor visas.
[94] Khurmi complained that he wasn’t receiving information from the day care centre. BrightPath uses an app to share photos and messages with parents. Khurmi had access to the app and should have been receiving emails from the day care centre. He seemed to blame Sidhu for blocking his access. But, at trial, his evidence suggested that either he didn’t know how to access the app’s information or didn’t try.
[95] In April 2021, Khurmi asked Sidhu about G.S.’s enrolment in kindergarten. Sidhu put him off because there was “still time”. At trial, Sidhu testified that she was considering moving, which might have changed G.S.’s catchment area. Soon after, Sidhu notified Khurmi that she would be moving and enrolling G.S. in the school in her catchment area. Khurmi raised no concerns about this decision.
[96] Khurmi’s concerns are overstated. He has never disputed Sidhu’s decisions about G.S.’s education. Though he says he would like more input or consultation, Sidhu is keeping him informed about the decisions she is making about G.S.’s education and giving Khurmi space to offer his views. Khurmi dropped G.S. off at school on her first day. He is listed as a co-parent with the school. He has access to G.S.’s teachers and report cards. Sidhu made special effort to get copies of G.S.’s school records, including G.S.’s graduation certificate, for Khurmi.
C. The Best Interests Factors
[97] Again, section 16(3) sets out the factors that the court must consider in carrying out the “best interests” analysis. Several factors (history of care, G.S.’s views and preferences, family violence, and other proceedings) are irrelevant here. I discuss the remaining factors below.
1. Needs and circumstances
[98] The court must consider the unique needs and circumstances of the child. For example, age, level of maturity, and temperament can all influence a child’s ability to cope with change and their need for a particular parenting style.
[99] As a school-age child, G.S. needs experiences that help develop her sense of competence. She is old enough to understand and manage Sidhu’s and Khurmi’s different parenting styles. But Khurmi and Sidhu have exposed G.S. to too much strife. She needs to be protected from that discord.
[100] The conflict between Sidhu and Khurmi largely focused on parenting time. As Khurmi’s parenting time has expanded (and the parties have settled the final order on this issue), their conflict has largely revolved around health decisions. Khurmi’s anxiety about G.S.’s health (which has never been substantiated by a medical professional) is creating fear and anxiety in G.S. As such, to reduce this conflict, I believe that G.S. needs a parent who is the sole decision-maker on health issues. Given G.S.’s age, health decisions overlap with educational decisions (for example, consent to remove G.S. from school for an appointment). G.S. needs the other adults in her life to know who is making decisions for her, and to do so without conflict.
2. Nature and strength of relationships
[101] The nature of G.S.’s relationship with each parent is especially relevant to parenting. In addition, G.S. has important relationships with her grandparents and other family members. These relationships can provide stability at a time of substantial change in the child’s life.
[102] The strength of the relationship between G.S. and Khurmi favours that he should have some decision-making responsibility. Further, everyone in her life, especially her grandparents, have valuable knowledge to share with G.S. about her faith, language, and culture. These are strong relationships that can be nurtured by shared decision-making between Khurmi and Sidhu in some areas.
3. Supporting relationship with spouse
[103] It is generally important that each parent support G.S.’s relationship with the other parent. A positive relationship with both parents provides stability for G.S. during her parents’ divorce.
[104] Despite the conflict between Sidhu and Khurmi, I see no evidence of alienation. That Sidhu organized a visit right after Khurmi was acquitted is evidence to me that both parents can move forward in developing a positive relationship. The result is that they can be champions for each other in G.S.’s life.
4. Cultural, linguistic, religious and spiritual upbringing
[105] G.S.’s culture or religion may provide an added support system for her. Khurmi’s and Sidhu’s ability to maintain and promote G.S.’s understanding of, and link to, her cultural, linguistic and religious heritage, as well as the potential for her to develop their own cultural identity and self-esteem, are important factors.
[106] Khurmi and Sidhu are raising G.S. as a Sikh. They participated together in Sikh baby rites for G.S. (visiting the gurdwara within 40 days after she was born). Though Khurmi’s family is more orthodox than Sidhu, they have already been making decisions together about her spiritual upbringing.
5. Plans for G.S.’s care
[107] Khurmi argued that Sidhu has repeatedly opposed his requests for expanded parenting time, showing that she is unwilling to involve him in G.S.’s care. Given that the parties have resolved parenting time, they have shown that they can identify and plan, together, what is best for G.S.’s care.
6. Ability and willingness
[108] The past, present, and future ability and willingness of Khurmi and Sidhu to care for G.S. are important factors in determining her best interests. In some cases, a parent’s physical, psychological, or other limitations may raise concerns for the child’s health, safety, well-being, and development. I must consider a person’s strengths and limitations when determining parenting arrangements.
[109] Though Khurmi has suffered from mental health challenges in the past, he worked on himself to overcome these difficulties. Sidhu does not challenge Khurmi’s ability to parent and care for G.S.
[110] That said, Khurmi’s anxiety about G.S.’s health has driven him to make irrational and unreasonable demands of Sidhu and the other adults in G.S.’s life. These demands have harmed G.S. I believe this unnecessary worry is a limitation that is overcome by ordering that Sidhu should have sole decision-making responsibility for health and education.
7. Communicate and cooperate
[111] G.S. benefits when Khurmi and Sidhu cooperate and communicate. Parents who cooperate and communicate are more likely to manage flexible parenting arrangements and joint decision-making about their children.
[112] Khurmi argued that he and Sidhu can and do cooperate and communicate. Sidhu argued that the communication between them was more functional, and their cooperation is stymied by Khurmi’s demands around G.S.’s health and education.
[113] Khurmi and Sidhu have had, no doubt, challenges communicating. They were separated by the time G.S. was born. Sidhu alleged that Khurmi assaulted her, and Khurmi was heading to trial. After Khurmi’s acquittal, they seemed to be able to better resolve their differences. But that cooperation was interrupted by the pandemic. Their desire to keep G.S. safe led both of them to act unilaterally and irrationally, exposing G.S. to conflict. But, over time, they have managed their parenting arrangement amicably. Their communication challenges are largely about G.S.’s health and education.
8. Summary and Order
[114] G.S.’s best interests are met by Khurmi and Sidhu sharing decision-making for areas where they can communicate and cooperate effectively—culture, language, religion and spirituality, and significant extracurricular activities. For health and education, it is best for G.S. that Sidhu have sole decision-making to ensure G.S.’s physical, emotional and psychological safety, security, and well-being.
[115] Thus, I order:
(a) decision-making responsibility for G.S. for health and education shall be allocated to Sidhu;
(b) decision-making responsibility for G.S. for culture, language, and faith, and significant extracurricular activities shall be allocated to both Sidhu and Khurmi;
(c) Khurmi has exclusive authority to make, during his parenting time, day-to-day decisions affecting G.S.—he shall have the right to administer standard over-the-counter medications, care, and treatments for G.S.’s routine medical and health-related issues or concerns while she is in his care;
(d) Khurmi is entitled to request from Sidhu information about G.S.’s well-being, including in respect of her health (including health records, such as lab results, publicly funded dispensed medications, digital images, like x-rays and MRIs, and hospital discharge summaries) and education (including copies of school notices and report cards and he is entitled to attend G.S.’s school, including her school activities, parent-teacher interviews, volunteer opportunities, school trips, meetings with teachers and other school employees, and special events);
(e) Khurmi is entitled to request information from any other person who is likely to have information about G.S.’s well-being, including in respect of her health and education, and to be given such information by those persons subject to any applicable laws;
(f) Khurmi shall not make decisions about the care and treatment of G.S.’s physical, emotional, or psychological well-being, including that he shall not consult pediatricians or family doctors, dentists, optometrists, psychologists, psychiatrists, or other medical specialists without Sidhu’s consent; and
(g) before making a significant decision about G.S.’s health or education, Sidhu shall advise Khurmi in writing of the issue to be determined, consult him, and provide him with at least 7 days to provide his input, unless an earlier response is necessary because of the time-sensitive nature of the issue.
V. Costs
[116] The parties will engage in meaningful discussions and negotiations respecting the costs of this trial. If they cannot resolve costs, any party seeking costs will serve and file costs submissions, any relevant offers to settle, and their bill of costs by December 1, 2022. The parties’ responding submissions will be served and filed by December 23, 2022.
Agarwal J.
Released: November 16, 2022
COURT FILE NO.: FS-17-89391-00
DATE: 2022 11 16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bhupinder Khurmi
Applicant
– and –
Luvleen Kaur Sidhu
Respondent
REASONS FOR JUDGMENT
Agarwal J.
Released: November 16, 2022