Court File and Parties

COURT FILE NO.: FS-22-104152-00 DATE: 2023 04 04 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Gurpreet Kaur, Applicant R. Sidhu, for the Applicant

- and -

Jagjit Singh, Respondent P. Hundal, for the Respondent

HEARD: March 24, 2023

Endorsement

MCGEE J.

Motion for Order before a Case Conference Dismissed

[1] On Friday, March 24, 2023, I dismissed Mr. Singh’s extensive parenting motion served before a Case Conference with reasons to be provided, and invited costs submissions. These are my reasons and my decision on costs.

Background

[2] The parties are the parents of three-year-old Gurjazz. They were married on November 29, 2017 and lived in Peel Region upon their arrival in Canada. They separated on June 21, 2022 when Mr. Singh was charged with an assault causing bodily harm to Ms. Kaur.

[3] Since separation, Gurjazz and his mother have been living at the Salvation Army Honeychurch Family Life Resource Centre, a shelter for women and children. Ms. Kaur is on social assistance and Mr. Singh is employed, earning approximately $30,000 per year.

[4] Mr. Singh is paying table child support for Gurjazz and has had parenting time in accordance with a temporary, without prejudice agreement dated December 9, 2022. The parenting exchanges have been supervised so that they comply with the terms of Mr. Singh’s recognizance. Exchanges have typically occurred at Gurjazz’s daycare except for parenting time on Sundays when a family member has supervised the exchanges.

[5] On February 27, 2023, Ms. Kaur informed Mr. Singh in an email exchange between counsels that she had been approved for subsidized housing and would be moving to Scarborough. She proposed a gradual adjustment to the parenting time as Gurjazz adjusted to the move. She offered to work out different terms for pick up and drop off because Gurjazz would be changing daycares.

[6] As her responding affidavit explains, Ms. Kaur has been on a waiting list for subsidized housing since separation. She has roots in Peel, and she has tried hard to stay in Peel, but the wait for subsidized housing in this Region is 10-12 years.

[7] Ms. Kaur has already declined two offers for subsidized housing – one in Hamilton and one in the Niagara Region – so that she could stay closer to the Peel Region. Her ability to stay in the Salvation Army shelter is limited. By the end of 2022, she had overextended her time.

[8] When a long term, stable, and affordable residence in Scarborough became available in February 2023, she accepted it. A March 14, 2023 letter from the shelter confirms that Ms. Kaur had no choice but to accept the placement.

[9] A second letter from the shelter, written by a Housing Worker, advises that “Ms. Kaur's Ontario Works income cannot support the expenses of the rising housing crisis and the rent required for a two-bedroom apartment. Ms. Kaur received a third subsidized housing offer within the GTA. She had no other option but to accept this third offer since she had exhausted her stay at the shelter. Ms. Kaur only wants the best for herself and her son and the decision she made to accept the housing offer was the best option.”

[10] A third letter from a settlement counselor dated March 21, 2023 describes how the subsidized community housing hub for the Scarborough residence is assisting her with furniture, food, subsidized childcare, and employment services.

The Father’s Urgent Motion dated March 17, 2023

[11] Mr. Singh instructed his counsel, and his counsel accepted his instructions to bring an Urgent Motion which came before me on Monday, March 20, 2023. None of the above information was included in Mr. Singh’s supporting affidavit but for the reference to Ms. Kaur living in a shelter and having moved without his consent or a Court Order.

[12] His Motion asks for an Order to be granted before a Case Conference and before he files an Answer on the following terms: that Gurjazz “be returned to his status quo domicile in Brampton, Region of Peel,” that the parties have interim joint decision-making responsibility, that Gurjazz continue to attend day care in Brampton, that Ms. Kaur not be allowed to relocate with Gurjazz outside of Brampton without his consent, and that the police enforce the above terms.

[13] The information in Mr. Singh’s affidavit was lengthy and alarming. I will summarize it as follows:

• He was not made aware “in any way or form that the applicant mother removed and relocated with my child to another city.” She has acted with “blatant and with callous disregard for the consent agreement between the parties.”
• He only learned on Friday March 10, 2023, when he went to the daycare to pick up Gurjazz, that his son had not been there all week. He contacted the mother through a third party and was told that she (the mother) had not yet heard anything through her lawyer about any pickup arrangements. He then heard from his counsel who told him that the mother’s lawyer had told her (Mr. Singh’s lawyer) that the mother had moved to Scarborough with Gurjazz a week prior.
• He is certain that the mother’s actions are part of a larger plan to alienate him from his son. He states that the mother has never explained to him why she can’t get employment or afford housing.
• Alternate parenting time arrangements were put in place for the intervening week of March 13, 2023 which, in his view, did not go well because he had to pay for an Uber and the mother was late.
• He intends to have equal parenting time and be involved in all aspects of Gurjazz’s life. He asserts that there are no grounds for parenting to be supervised.

[14] Upon receiving the urgent motion and having no information but for Mr. Singh’s affidavit, I provided a timeline for Ms. Kaur to respond. The motion was then returned to me on Friday, March 24, 2023. Because I was also hearing a regular motions list, the parties and counsels appeared before me by Zoom as the first matter on my list.

Rule 14(4.2) of the Family Law Rules

[15] Rule 14(4.2) of the Family Law Rules, O. Reg. 114/99 under Courts of Justice Act, R.S.O. 1990, c. C.43 states that no Notice of Motion or supporting evidence may be served, and no Motion may be heard before a Conference dealing with the substantive issues in the case has been completed, unless there is a situation of urgency or hardship, or a Case Conference is not required, or there is some other reason in the interest of justice.

[16] It is almost twenty years since the Family Law Rules were enacted, and the test for a motion to be heard prior to a Case Conference remains the same. As set out by Justice Wildman in Rosen v. Rosen, “urgency or hardship” contemplates issues such as abduction, threats of harm or dire financial circumstances.

[17] Rosen also provides that the moving party on a Motion before a Case Conference must first inquire whether a Case Conference date is available, whether on a regular, an urgent or an early list. Second, the moving party must attempt settlement discussions prior to attending the Case Conference.

[18] As I stated in Clemente v. O’Brien, 2020 ONSC 3287, negotiation and problem solving come before litigation. A moving party must make genuine efforts to try to settle a matter before bringing a motion. Resolution efforts may only be bypassed when there is an immediate and specific risk of serious harm to a child.

[19] There is good reason for this approach. When problem solving takes precedence over family law litigation, the potential for a reasonable and affordable outcome multiplies exponentially. Conversely, when the first step in the litigation is a race to the Courthouse on reactive and incomplete information, the potential for a reasonable and affordable outcome plummets.

[20] Family issues, particularly parenting issues, are painful and complicated. Emotions run high. Particularly so in the early stages of the dispute. Events are easily misconstrued in the fog of war.

[21] Motions are expensive. Parties pay for legal assistance with precious after-tax dollars or receive limited hours of assistance from Legal Aid. If litigation is prioritized, finances are almost certain to be exhausted long before the complicated work of restructuring one family into two families is complete.

[22] This reality has been long recognized by the Ministry, court connected services, family service professionals, legal organizations, and the courts.

[23] The Ministry promotes the benefits of early resolution through services such as the Mandatory Information Program, Automatic Orders, court-connected Mediation Services, and Dispute Resolution Officer (“DRO”) programs. The Brampton court provides early judicial resolution through Early Case Conferences (“ECC”) and regular Case Conferences.

[24] Unless a child’s circumstances are urgent as set out in Rosen v Rosen, these are all resources that can, and with regard to judicial Case Conferences, must be accessed before bringing a Motion.

This was Not an Urgent Motion

[25] The terms of Mr. Singh’s recognizance prevent direct communication with Ms. Kaur. Mr. Singh’s affidavit confirms that when he went to pick Gurjazz up from the daycare on March 10, 2023, his counsel had not yet informed him of the February 27, 2023 exchange in which Ms. Kaur advised that she had been accepted for subsidized housing in Scarborough. I accept that he was shocked to learn in this manner that his son’s residence had been changed.

[26] I also accept that Ms. Kaur had no way of knowing that Mr. Singh did not know that she had moved. The text messages between she and the third party show that she was still waiting on word from his lawyer as to her proposed alternatives for Gurjazz’ pick up and drop off.

[27] Rather than problem solve the impasse, Mr. Singh took this as proof that his son was being deliberately removed from his life; a fear that is not objectively valid. At no time has Ms. Kaur suspended parenting time, despite the stress of the separation and securing housing.

[28] Upon learning of Mr. Singh’s concerns, Ms. Kaur’s counsel immediately proposed an ECC on March 14, 2023. No reply was received. Instead, Mr. Singh instructed his counsel, and his counsel accepted his instructions to bring an urgent Motion before a Case Conference.

[29] I find that the refusal to canvass settlement, and the refusal to attend an ECC disqualify Mr. Singh’s motion for a hearing before a Case Conference pursuant to Rosen.

[30] Moreover, I find that the substance of Mr. Singh’s Motion was not urgent.

[31] In making this finding, I first acknowledge that the temporary, without prejudice December 9, 2022 Agreement provides that Gurjazz’s residence will not be relocated out of Peel Region without the father’s consent or a Court Order.

[32] Consent in such an Agreement is predicated on consent not being unreasonably withheld. At the time of the consent, Gurjazz was residing with his mother in a shelter that was known to offer only temporary accommodations.

[33] Ms. Kaur ran out of housing options early last month. She had turned down two other housing assignments and she was required to leave the shelter. Mr. Singh does not propose that he be Gurjazz’s primary caregiver, nor does he propose a solution as to where his young son will live while in his mother’s care. He argues only that his parenting routine remain unchanged.

[34] This is neither a reasonable nor a child-focused approach. The move to Scarborough resolved dire housing circumstances for Gurjazz. Parenting decisions are based on a child’s circumstances, not a parent’s circumstances.

[35] It would have been desirable for Ms. Kaur to have moved for an Order permitting the move, prior to the move. At the same time, I find that her breach of the Agreement does not create a situation of urgency for the child sufficient to permit Mr. Singh’s Motion before a Case Conference. The Motion is dismissed.

[36] The parties may schedule an ECC or a DRO Case Conference for a Case Conference within the next few weeks, after Mr. Singh has filed an Answer. The parties are required to attend the Mandatory Information Program and upload Certificates of Attendance to Caselines. The parties are also required to complete Intakes for Peel Family Mediation Services.

Costs

[37] Bringing a motion before a Case Conference that is not urgent is unreasonable litigation conduct. It attracts an enhanced award of costs to achieve the third of the four purposes of a costs award: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants; and to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules, see: Mattina v. Mattina, 2018 ONCA 867.

[38] I must also discourage the less-than-full candour of the father’s materials. It was only in the mother’s responding materials that I learned of her housing situation, the February 27, 2023 notice to the father, the mother’s efforts to keep parenting time moving forward, and her invitation to an ECC.

[39] I assess costs on a full recovery basis in the amount of $2,825.00, being $2,500 in fees and disbursements plus HST. Costs are forthwith payable from Mr. Singh to Ms. Kaur.

[40] Although Ms. Kaur’s counsel indicated that her client’s full recovery would be in the range of $5,000, I observe that this amount would have included a Motion that she served for the return of the Motion. I declined to hear any cross motion and Mr. Singh incurred no costs of response. Instead, I assess the above costs only on Ms. Kaur’s response to Mr. Singh’s urgent Motion brought before a Case Conference.

McGee J. Released: April 4, 2023