Court File and Parties

COURT FILE NO.: FS-19-95305 DATE: 2023 06 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jatin Dilawari Applicant Garav Gill for the Applicant

- and –

Guninder Dilawari Respondent Self-represented

HEARD: April 26, 2023

Endorsement

D.E HARRIS J.

[1] This matter was scheduled for an uncontested trial on several family law issues. The respondent former wife had failed to respond, attend, or file any material over several years of litigation. She was noted in default on July 21, 2022. A divorce order was previously issued on February 22, 2023. However, she did appear for this trial with the couple’s 11-year-old son, Vivaan sitting next to her at counsel table. The couple live together but separately in the matrimonial home.

[2] After first excluding the son from court, I decided to grant the respondent limited rights of participation. The issues raised by the applicant are parenting, child support and equalization. Particularly on the issue of parenting, more information is generally better rather than less. The issue being the best interests of the child under Section 16(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), it was helpful to get the mother’s perspective.

The Pertinent Evidence

[3] Jatin requests final decision-making authority with respect to Vivaan. The couple were married in India in 2010. Both were working at that time. Their son, Vivaan, was born in 2011 and the family came to Canada in 2015. Breaking into the job market proved difficult. Eventually, Jatin was able to get work at good jobs. His speciality is business valuation but he had to branch out and work as a financial analyst. In June of 2017, he found his first job in business valuations.

[4] Guninder worked only intermittently, often in retail. It was part-time. She upgraded her education and took remedial classes in writing resumes. Guninder has a degree in computer science and an MBA in human resources.

[5] The couple shared childcare. However, from Jatin’s evidence that he worked much more than she did, I infer that the bulk of the childcare fell to Guninder. He was home much more during COVID, like so many, but otherwise, Guninder was with their son substantially more. In terms of taking their son to doctor appointments and the like, Jatin would do that much more often because he can drive a car; she does not.

[6] Jatin had concerns with respect to Guninder’s child rearing in the last few years. She has become a member of Brahma Kumaris, an organization that he believes is a cult. Guninder accepted in her testimony that it is a large group with several million adherents in many different countries. There are significant dietary and cultural restrictions from the organization which Jatin says Guninder imposes on Vivaan. She is vegan and only makes food prescribed by Brahma Kumaris with no preservatives and no sugar. Jatin is concerned that this food is not providing Vivaan with the necessary nutrition for a boy his age.

[7] Jatin also alleged that the cultural associations permitted are also unduly restrictive. According to him, his son is undeveloped for a boy his age in his appreciation of music and movies, for example. Jatin testified that the dietary and cultural restrictions have impeded friendships with his peers and limited his interests. He does not like to play with his schoolmates.

[8] Jatin testified that the Guninder’s interest in the organization started in 2014 while still in India. It started with regular meditation. But it increased from there, with regular videos and attendance. By the spring of 2016, it became an almost full-time preoccupation. Jatin said that the organization targets and preys on people going through hard times. There are no fees, but they have a tightly prescribed agenda. The restrictions are very severe. Physical relationships are discouraged. From early on in her association with the group, at her instance, she ceased any physical relationship with the respondent.

[9] Jatin says that Guninder has withdrawn from society and lives in an alternative reality. She only wears white clothing, as she was wearing in court during the hearing in this case. Jatin testified that when she is with friends or family, she latches on to them and wants to talk about nothing except the group. She has alienated many people. In his marriage, Jatin has lost her companionship. She would not talk to him about anything except the group. Jatin testified that all of this has had a negative effect on their son, Vivaan.

[10] Jatin and Guninder still live together in the matrimonial home but are divorced. They lead separate lives. They do not argue or fight in front of Vivaan. Jatin has begun a new life. He was remarried in India very recently and his new wife and her 13-year-old daughter are hoping to come to Canada in several months.

[11] Guninder was asked whether she wished to ask Jatin questions while he was on the witness stand and she declined. In evaluating his evidence, I will take into account that he was not subjected to cross-examination.

[12] Guninder testified herself. I will touch on only the more important points that differ from those of Jatin. In general, she testified that she worked more than he said she did in his evidence. She continually referred to being stressed by work, having to rest, and needing to take care of her health. She lost jobs due to the stress she was undergoing. It was clear from her evidence that she has struggled with health issues for many years. There was never any reference in the evidence to these problems being physical. I infer that they are mostly of a psychological nature.

[13] Guninder disputed that her group is a cult. She testified that its purpose is to uplift positivity, instill ways to think, and recognize that negative factors can restrict us. It helps her to connect with God. She has been sick and what she does with the group helps with that. Currently she spends about an hour a day on video internet calls with the group. Guninder testified that she has accumulated a good deal of stress, had difficulty concentrating, and had suffered major setbacks. But she had recovered quite a bit. She intends to change professions and was seeking a more spiritual job, something like psychic or tarot card reading.

[14] She testified that she was felled by a spiritual attack, there was a lot of pressure on her mind. She attested to seeing an object of black magic in her home. It felt like someone was beating her, she could not get up. It was something she had not experienced before.

[15] Guninder disputed that there were negative effects from her beliefs on her son. He is perfectly happy with the dietary regime, there are no cultural or developmental issues and although COVID was difficult, Vivaan has good friends.

The Parenting Issue

[16] Although expressing a preference for mutual decision making with respect to Vivaan and adding that there are not a lot of outright disagreements, Jatin wishes to have final and sole decision-making authority in case of disagreement and he wishes to have primary custody. I agree.

[17] There are two major factors. One involves Guninder’s involvement in Brahma Kumaris. Jatin says that this involvement has been detrimental to Vivaan but Guninder strongly disagrees. It is not an easy job to evaluate the situation. Healthy lifestyle advice and practical measures are very common now. The dietary restrictions looked at on their own could well be beneficial and part of the mainstream. However, Jatin alleges that the group believes that the world will soon end. There is a doomsday tinge to the group. When I questioned Guninder about the group, she suddenly became very animated, almost beatific. She went on at some length about the good things the group’s teachings and beliefs do for her. While she denied that the group believes in the imminent destruction of the world, she testified that there is a belief that we are going through transformative turmoil and that the world will transform itself from negative to positive.

[18] In general, I prefer Jatin’s evidence on the issue of the nature of this group. He was a good witness and did not seem to exaggerate for the purpose of painting Guninder in a bad light. He was trying to be fair to Guninder and was largely successful in that effort. But he was not, of course, fully objective or neutral.

[19] I need not decide where the group is a cult as such and probably in any case do not have sufficient evidence on the question to make a firm decision. But I do find that Guninder’s strict adherence to its teachings is concerning. It permeates almost all facets of her everyday life and seems to have an inordinate influence on her. There is an ideological current of a type, however, based at least on Guninder’s rendition, the group attempts to appear neutral and reasonable.

[20] Her devotion to this group and its tenets has made Guninder less attentive to and capable of parenting their son Vivaan. To some degree at least, she is delusional and fails to see reality. Decisions are made leaning more towards her needs than her son’s needs. That is pivotal with respect to parenting: Ali v. Ali 2012 ONSC 6006 at para. 41.

[21] The second factor in my decision on this is that in her testimony, Guninder testified that she is intending to go to India to live in the near future. She will stay for six months to a year. The purpose is to cure herself from the malaise she has been suffering from. Clearly, she will not be able to parent her son during that time. Both the absence itself and the willingness to leave her son for such an extended period fortify my conclusion that final decision making should be given to Jatin.

[22] The parties will communicate on significant decisions and obtain each other’s consent regarding their son as they have been doing. Vivaan’s best interest is to have his father be the final decision maker in case of a disagreement. The factors in s. 16(3) (a)-(i) of the Divorce Act all align with this conclusion.

[23] In the near future, Guninder and Jatin will not live together in the matrimonial home. Jatin will have primary custody of Vivaan and Guninder will have access. Aside from agreements between the parties which is always the preference, the proposal of Jatin for Guninder’s access is:

Week 1: Friday at 6:00 p.m.- Sunday at 600 p.m.; Week 2: Wednesday after school (or 3:00 p.m. in the event there is no school)- Thursday morning school drop off (or 8:30 a.m. in the event there is no school); Week 3: Friday at 6:00 p.m.- Sunday at 6:00 p.m.; Week 4: Friday at 6:00 p.m.- Sunday at 6:00 p.m.

[24] The holiday schedule proposed is as follows:

The child spend Christmas break with Jatin on odd numbered years and would be with Guninder on even numbered years; The child spend March break with me on even numbered years and would be with Guninder on odd numbered years; Both have two weeks of uninterrupted parenting time with the child during summer break. Guninder shall notify Jatin of her proposed two weeks by May 1 of each year. In the event of a disagreement or overlap, Jatin gets first choice on even numbered years and Guninder gets first choice on odd numbered years.

[25] I agree with these proposals. They are reasonable in the circumstances. It should be recognized that they are forward looking to the stage when the parties no longer live together and Jatin is living with his new wife. It is not easy to see into the future and there may well need to be some variation at that point.

Child Support

[26] Guninder has not filed anything in this proceeding. Jatin’s evidence was clear that she has not been working for several years and before that, worked only sporadically. Guninder’s evidence is to the same effect.

[27] Jatin seeks to impute income to Guninder. In the present circumstances, under s. 15.1(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Federal Child Support Guidelines, S.O.R./97-175, are the applicable guidelines. Section 19(1) of the Guidelines allows for the imputation of income. Here, Jatin argues that Guninder is well educated and has expertise and experience in the field of business and human resources. An income of $85,000 should be attributed to her, this figure being a modest yearly salary for a human resource professional.

[28] In the present circumstances, I would not impute income to Guninder. She has not worked for some time and in my view is currently unable to work. The evidence from both parties was similar with respect to her spotty work history. She has worked prior to the pandemic at jobs well below her education and qualifications including at Shoppers Drug Mart. But she testified that she was terminated because she was too stressed. Her work over quite a number of years has been quite sporadic. She testified that she has ambitions to be a taro card reader and no longer wants to work in the field she is educated in. At the same time, she testified that she is suffering from a serious malaise and is going to India in the near future to heal herself. Adding to this evidence is the effect of her adherence to what the applicant alleges is a cult. She is somewhat delusional. This after all was the main theme of Jatin’s evidence and submissions on the parenting issue.

[29] Together with this evidence, Guninder’s passive demeanour and speech throughout this proceeding is also worthy of note. From her work history and her present circumstances including being under the sway of Brahma Kumaris, I conclude that Guninder is currently unable to work for mental health reasons: Sheridan v. Cupido, 2018 ONSC 5817 at para. 16. Although I recognize the importance of child support and the process of imputing income to facilitate it, it would be erroneous to impute income in the present circumstances: Fraser v. Fraser, 2013 ONCA 715 (Ont. C.A.).

Equalization

[30] The applicant requests equalization under s. 5(1) of the Family Law Act in the amount of $32,041. However, Guninder’s net family property was not established on this hearing. She did not file any documentation and Jatin made no effort to establish her NFP either with documentation or in cross-examination when she took the stand. It cannot be known how much, if anything, is owed Jatin as a result.

[31] Nonetheless, it strikes me as unfair that Guninder’s failure to meet her disclosure obligations would frustrate Jatin’s entitlement to equalization. I would make the order for equalization in the amount of $32,041 but would stipulate that this sum should come out of her proceeds of the matrimonial home when it is sold.

Sale of the Matrimonial Home

[32] While provisions with respect to sale of the matrimonial home were included in the draft order, this was not addressed in the notice of application nor in submissions. Either party has leave to move for partition and sale of the home upon proper notice.

[33] With respect to costs, if so inclined, the applicant on the motion shall deliver submissions of not more than 2 pages, excluding the bill of costs, within 30 days; the respondent shall have the same limit and shall file within 20 days of the applicant.

D.E HARRIS J.

Released: June 23, 2023

COURT FILE NO.: FS-19-95305 DATE: 2023 06 23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Jatin Dilawari Applicant v. GUNINDER DILAWARI Respondent ENDORSEMENT D.E HARRIS J. Released: June 23, 2023