Court File and Parties

COURT FILE NO.: 21-22072 DATE: 20230712 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Jasdeep Singh Sandha, Applicant AND: Amandeep Kaur Sandha, Respondent

BEFORE: Garson J.

COUNSEL: Harrinder Dhaliwal and Arnab Bose, for the Applicant Andrew A. Sudano, for the Respondent

HEARD: December 12, 13, 14, 15 and 16, 2022, and May 15, 16, 17, 18 and 19, 2023

Endorsement

Introduction

[1] Jasdeep Singh Sandha (“Jasdeep”), the applicant, and Amandeep Kaur Sandha (“Amandeep”), the respondent, met in 2013 and shortly thereafter married in India in January 2014. Jasdeep was living in India at that time and Amandeep, born and raised in India, had moved to Canada in 2009.

[2] Jasdeep moved to Surrey, B.C. in December 2014 to join Amandeep and her family and their newborn son, Fateh Singh Sandha (“Fateh”), born October 17, 2014. The parties and Fateh spent the next five years in Surrey.

[3] In 2019, the parties relocated with Fateh to Belle River, Ontario. Shortly thereafter, the respondent had second thoughts and wanted to return to Surrey to again live with her family. This eventually led to the breakdown of the marriage.

[4] In July 2021 the respondent travelled to Surrey with Fateh for a family visit. During this visit, the respondent withdrew contact between the applicant and Fateh and obtained, ex parte, a restraining order in Surrey prohibiting the applicant from communicating with Fateh. This order was later set aside, and B.C. courts eventually declined jurisdiction over Fateh. Nonetheless, the respondent remained in Surrey with Fateh.

[5] The applicant next sought out and was granted a court order in Ontario compelling the respondent and Fateh to return to Belle River, as well as establishing a parenting arrangement (and later a holiday schedule) moving forward.

[6] The respondent now asks this court for an order authorizing her to permanently relocate to Surrey with Fateh and to allow her primary decision-making authority. In return, she will ensure ample parenting time for the applicant both by permitting and paying for monthly visits for the applicant to come to Surrey and by bringing Fateh to Belle River during school breaks.

[7] She argues that her life in Belle River is lonely and isolating and that she is subject to mental, verbal, and physical abuse. She enjoys strong and stable family and economic support in Surrey and is willing to ensure the applicant’s inclusion in Fateh’s life. She submits that shared decision making is not in Fateh’s best interests given the ongoing disagreements between the parties.

[8] The respondent urges the court to use great caution when placing any reliance or weight on the Voice of the Child Report (“VOCR”) given obvious signs of coaching by Jasdeep.

[9] Not surprisingly, the applicant strongly opposes this request and wishes Fateh to remain with him in Belle River. He claims that Fateh enjoys a good school, close friends, and family; equally, the applicant enjoys a better paying job and a better work-life balance.

[10] The applicant now has the help of his mother and his sister in Belle River and the flexibility with his work schedule to take time off work when he has parenting time with Fateh.

[11] The applicant’s parenting plan seeks equal time with Fateh, and decision-making authority resting with the applicant for Fateh (after consulting with Amandeep). The applicant expresses concerns that if Fateh is returned to Surrey with the respondent, Amandeep will engage in parental alienation as she previously did in summer 2021.

[12] Each party alleges at various times in the past that the other and their respective families were abusive, excessively consumed alcohol, engaged in acts of violence, were mentally unstable (including suicidal ideations), and acted in a manner that is contrary to the best interests of Fateh.

[13] These reasons explain the decisions I have reached in this high conflict matter on the issues of whether Fateh shall be permitted to relocate to Surrey with his mother and the decision making and parenting time determinations going forward.

Preliminary Issue – Hearsay statements made by Fateh to the parties

[14] It was the respondent’s initial intention to introduce into evidence many statements allegedly made out of court by Fateh to her and to third-parties about Jasdeep and his family. Jasdeep was opposed to this and if allowed, intended to also introduce many alleged statements Fateh made to him about Amandeep and her family.

[15] The parties initially proposed a form of what they described as a “rolling Khan application or voir dire” which the court rejected. When pressed to have a voir dire to determine admissibility, the respondent vacated her request.

[16] For clarity, vacating the request to admit out of court statements, allegedly made by Fateh to Amandeep, means that I will not consider (for the truth of its contents) paras. 114-116 of Amandeep’s trial affidavit, sworn December 6, 2022, as well as any other references by the parties regarding statements Fateh allegedly made to them.

Background and Evidence

The Applicant – His Affidavit and Viva Voce Testimony

[17] Both parties filed lengthy affidavits and then testified. I will summarize their evidence by category.

Life in Surrey B.C. – December 2014 - July 2019

[18] The applicant stayed with the respondent’s family during this time in a three-bedroom one-bathroom house. The respondent’s parents, her brother (and later her brother’s wife and son in 2017) as well as some temporary borders lived in the home. The parties and Fateh shared a bedroom.

[19] The applicant’s relationship with the respondent’s brother, Davinder Momi (“Davinder”) who introduced the parties, grew distant over time as the applicant believed Davinder was meddling in their marriage and finances.

[20] The applicant described the respondent’s father as “aggressive and short tempered” and felt that her family never stood up to their father. The applicant witnessed fighting between the respondent’s father Jaswant Momi (“Jaswant”) and Davinder, as well as Jaswant and Davinder’s wife Prabhjeet Momi (“Prabhjeet”).

[21] Shortly after his arrival, the applicant’s sister Gurdeep Jammu (“Gurdeep”) and her husband moved to Surrey. Gurdeep often babysat Fateh when Amandeep’s family was busy either at work, at school, or when Amandeep’s parents were in India.

[22] After spending his first few months securing a Class 1 driver’s license and later a further license to permit him to drive a heavy truck, the applicant put in long hours with his first employer before buying his own truck and working as an owner/operator up until the time of the move. When he wasn’t working these long hours, Jasdeep would spend his free time during evenings and weekends caring for Fateh.

[23] During their time in Surrey, Amandeep worked part-time as a bookkeeper and took some college classes part-time in the evenings. When neither Amandeep or her mother (who also worked part time and when she wasn’t working provided significant care for Fateh) were able to care for Fateh, Gurdeep would assist and care for Fateh. Jasdeep described Amandeep as needing a great deal of help to care for Fateh at this time. Amandeep would often become overwhelmed and would cry when Fateh cried, and that when both parties were home together with Fateh, it was Amandeep who would do the caregiving.

The Decision to move to Belle River, Ontario

[24] A friend of the applicant’s who worked with the applicant and Davinder, Surjit Gill (“Surjit”) introduced the parties to the idea of moving to Belle River. Surjit already had family in Belle River and bought a home there and moved in 2018.

[25] At that time, homes in Surrey were expensive. Jasdeep made two trips to Belle River to house hunt. The first trip was with cousins and Jasdeep sent videos and pictures of the houses he saw.

[26] A few months later with the cost of housing rising in Belle River, Jasdeep returned to Belle River with his sister, her husband, and a cousin, and after speaking with Amandeep, purchased a brand new three-bedroom home at 1334 Deer Run Trail (the “MH”) on April 14, 2019. Amandeep signed the closing documents electronically from Surrey in the presence of a notary on July 20, 2019. The deal formally closed at the end of that month.

[27] Gurdeep and her husband also purchased a home in Belle River at that time and his cousin also moved to Belle River. Jasdeep described Amandeep’s family as excited about this move and supporting them with gifts to help them with the move. Amandeep was involved in selecting some colors and backsplash for the kitchen and was excited to get new appliances and furniture for the MH.

Life in Belle River

[28] The parties and Fateh moved around July 2019. Jasdeep cited many reasons for the move including Surrey’s high crime rates, expensive house prices, and friends that had already moved to Belle River. Jasdeep insists that Amandeep wanted to move to Belle River at this time as she was having arguments with Prabhjeet and wanted to move to a home of her own. He referred to a December 13, 2018 text message between the parties where Amandeep appeared to be guiding him on certain parts of their Belle River home search and referred to further text messages received from Amandeep expressing concern that prices were going up in Belle River.

[29] They originally lived with Gurdeep for about 10 days until their house was completed. Friends came quickly for both Fateh and the parties, as they took advantage of the applicant’s sister, his friend Surjit, as well as many young kids and their families in the neighborhood.

[30] Jasdeep quickly found work and eventually settled in at RC Transport as an owner/operator which had him working less and making more. His income rose from just over $74,000 in 2018 in Surrey to just over $102,000 in 2021. His severe allergies stopped bothering him in Belle River.

[31] He spent his non-working hours playing with Fateh, his many friends, and his cousins while Amandeep cared for Fateh and prepare food for Fateh when Jasdeep worked. Amandeep initially took good care of Fateh and was involved in Fateh’s daily life including taking him to and picking him up from school.

[32] Amandeep, who had done bookkeeping in Surrey for about $2,000/month, initially stayed at home to care for Fateh. She took a beautician course at a cost of $2,800 and purchased some equipment for a home-based business but after working on this in the basement for only one week quickly lost interest. The first year in Belle River went well with the parties getting along and enjoying their new life.

[33] However, as time passed, Amandeep expressed her displeasure at being in Belle River and her desire to return to Surrey. She began to isolate herself and Fateh and stopped letting Fateh visit family or friends. Jasdeep and Amandeep fought over how to raise Fateh and his play time with friends and family. Amandeep didn’t want to travel anywhere but back to Surrey while Jasdeep wanted “fun” vacations.

[34] The parties became distrustful and accusatorial of one another with Amandeep alleging that Jasdeep excessively drank, was aggressive, that she feared him, and that a camera installed in the MH was being used by Jasdeep to spy on her. Jasdeep described Amandeep as verbally abusive to him, hiding his personal belongings, and on two separate occasions, threating to commit suicide.

[35] The first suicide threat was May 3, 2020 when Amandeep threatened to kill herself and proceeded to walk towards railway tracks outside their home.

[36] The second suicide threat took place on May 13, 2020 when Amandeep again threatened suicide with a kitchen knife in her right hand that she was waving around and in the presence of Fateh. She also threatened Jasdeep. Police were contacted and asked Jasdeep to move out for a few days which he did for 12 days and brought Fateh with him to Gurdeep’s. A May 25, 2020 text message from Amandeep to Jasdeep asks that he and Fateh “please just come home”. Both Jasdeep and Fateh did return home with a police escort. Amandeep had one demand at that time, which was for Jasdeep to sell the MH.

[37] This incident led to CAS involvement which has since been terminated. Jasdeep insisted he has never pushed, slapped, nor been physically or verbally abusive towards Amandeep in any way. He acknowledged occasional alcohol use but due to his need to undergo random drug testing through work for both drugs and alcohol, it would have been impossible for him to consume excessive alcohol daily.

[38] A July 2020 trip to Surrey for one week appeared to go well and Jasdeep described Amandeep’s family as giving the parties and Fateh a lot of respect. Yet disagreements quickly arose when the parties returned to Belle River with Amandeep missing her family, regretting the move, and starting to distance herself from their friends, Gurdeep, and her family, and not allowing Fateh to play with his friends. Arguments in front of Fateh about play dates became common.

[39] In May 2021, Amandeep’s family visited Belle River. Shortly after this visit, Amandeep expressed a wish to visit her family in Surrey. Despite Jasdeep buying her tickets for this trip for July 3, 2021, Amandeep did not want to leave on that day and ended up leaving on July 24, 2021 and returning August 16, 2021 on tickets purchased by Davinder for almost four times the cost of the earlier tickets. Jasdeep brought Amandeep and Fateh to the airport.

[40] Efforts by Jasdeep to contact Amandeep or her family on August 10, 2021 went unanswered. Calls to Amandeep’s family members went unanswered until finally Amandeep’s mother picked up the landline and explained that Amandeep was busy and couldn’t talk and then threatened Jasdeep, explaining that “police only listen to ladies in B.C.” CAS in Windsor were called and contact finally occurred by phone on or before August 16, 2021, the expected date of return.

[41] Amandeep and Fateh did not return as scheduled and Jasdeep received a text message from Amandeep telling him to sell the MH and come to Surrey and that she was not returning to Belle River. Jasdeep retained a lawyer who sent a letter to Amandeep on August 19, 2021 asking for her to return. She did not. Rather, she sent a text message that same day advising Jasdeep that after Fateh woke up she would call, which she never did.

[42] Amandeep commenced a family law proceeding in B.C. and obtained a without notice restraining order and ceased contact between Fateh and Jasdeep. Jasdeep commenced his family law application on August 27, 2021.

[43] On September 20, 2021, a B.C. court found that Fateh was a habitual resident of Ontario and that they lacked jurisdiction and accordingly set aside the earlier restraining order. Video calls between Jasdeep and Fateh began shortly thereafter on September 28, 2020.

[44] An urgent motion in Windsor followed. Fateh was ordered returned to Belle River in an October 16, 2021 order of Bondy J.

[45] Amandeep and Fateh returned on October 28, 2021 and followed the parenting time schedule set out in the order of Bondy J. This was the first time Jasdeep saw Fateh in person since their departure to Surrey on July 24, 2020, more than three months earlier. Jasdeep paid $5,000 to return Amandeep and Fateh from Surrey and offered to assist Amandeep with finding a basement rental and offered to pay her first two months rent.

[46] The parties began communicating through Family Wizard. Disagreements arose regarding how to deal with parenting time when Fateh is sick, exchange times, holiday schedules, medical and dental appointments, and extra-curriculars. The parties appear able to work out many of these minor disputes without court intervention.

[47] The parties followed the parenting time schedule as set out in the order of Bondy J. When Jasdeep had Fateh, he would take Wednesdays and Fridays off and Fateh would stay with him and his mother in the MH. Jasdeep’s mother came to Belle River in October 2021 to help Jasdeep take care of Fateh and has remained here since.

[48] Fateh has returned to Lakeshore Discovery School where Jasdeep knows his teachers. During summer vacation 2022, the parties began a week schedule (Thursday-Thursday, roughly) for parenting time and Jasdeep took off the entire week when it was his parenting time and “didn’t work for a single second” when Fateh was with him. Jasdeep believes that this shared parenting experiment went well, made Fateh happy, and allowed Jasdeep to concentrate on Fateh when he was with him and on work when he is not. Jasdeep believes it is essential for Fateh to be with both parents.

[49] Jasdeep strongly feels that Amandeep’s family is too involved and harbours animosity and ill-feelings towards him. He believes that it is not possible for him to routinely travel to Surrey to see Fateh given the excessive flight time, flight and accommodation costs, as well as his allergy issues.

[50] Jasdeep explained that he installed a single camera in the kitchen covering the main door and living area and that the purpose of this camera was for Amandeep’s safety when Jasdeep needed to be away from the home late at night for work and was never installed to spy on Amandeep. He referenced an October 28, 2020 text message he sent to Amandeep reminding her to lock the front door and switch on the camera before she went to sleep, and she responds that she has done so.

[51] The MH was sold in July 2022 and Jasdeep has purchased a new home that he has now moved into with his mother and Fateh (during his parenting time). The new house at 1358 Colonial Crossing is in the same neighborhood as the MH, near the same school. The house gives Fateh his own bedroom, a pool, and is two-three minutes walk to Jasdeep’s sister’s house.

[52] Jasdeep believes the parties should have joint decision making for Fateh and gave examples of recent coordination between the parties regarding dental care for Fateh and arranging gym classes for Fateh.

Cross Examination

[53] Jasdeep agreed that Amandeep had a lot of family support in Surrey but did not have any close friends there. He acknowledged that he resented Amandeep because of the breakdown of their marriage and that she shattered his trust in her when she halted his communication with Fateh in the summer of 2021. He agreed that visiting her family in Surrey was important to Amandeep and that he has never stopped her from doing so and he wants Fateh to have a good relationship with Amandeep’s side of the family.

[54] Jasdeep agreed that Amandeep is a good mother and takes good care of Fateh. She helps him with his homework and is quite active in caring for him. Jasdeep accepted that some of his communications with Amandeep through Family Wizard have not always been respectful to her.

[55] Jasdeep maintained that he saw Jaswant hit Davinder’s son on one occasion and this causes him concern for Fateh’s safety if Fateh returns to Surrey to live with Amandeep’s parents. Jasdeep never reported this assault he observed by Jaswant to either Surrey police or local CAS nor did he do anything to stop this action. Jasdeep explained that this was not his child and that he would have called police if Fateh were hit by Jaswant. Jasdeep maintained that he would still allow Amandeep’s father as much time as he wishes with Fateh while Fateh is with Amandeep for her parenting time.

[56] Jasdeep accepted that he is now currently being seen by an allergist in Ontario and takes prescription medications for his allergies which for the most part address the concerns.

[57] Jasdeep explained that testing for drugs or alcohol can be conducted at anytime through work and that you do not know in advance what substance they are testing for. He agreed that the random test results filed may only relate to drug testing but maintained that he is tested for alcohol through breath tests.

[58] Jasdeep agreed that Amandeep’s attitude began to shift as early as May 2020 when shown an entry from the Lakeshore OPP reports where he allegedly told police that she blamed him for separating her from her family in B.C. Despite the lack of any May 25, 2020 police report, Jasdeep insisted police accompanied him and Fateh when they returned to the MH that day. Jasdeep clarified that he actually did see Amandeep between May 13 and May 25, 2020 when he moved in with Gurdeep. This included when he saw her in the driveway, where he was trying to see Fateh, and then brought Fateh to her at the MH so CAS could interview Fateh on May 22, 2020. He explained that when he earlier said he didn’t see Amandeep during that time, he meant he didn’t sleep at the MH or stay with Amandeep.

[59] Jasdeep denied sending negative signals to his friends about Amandeep and suggested that she created this image for herself by avoiding his friends. He explained that Amandeep talks to people for a short while but does not maintain long term relationships and is not a well socialized person.

[60] When confronted with the absence of any mention of a knife in Amandeep’s hand during her second suicide threat to either the responding police officers or CAS, he maintained that he told both police and CAS that she did threaten him with suicide but may have omitted to tell them about the knife in her hand.

[61] When shown an entry from the CAS worker dated October 5, 2020 suggesting that Jasdeep feels tired when he comes home from work, he could not recall making this statement and made clear that he spent 3-4 hours with Fateh every evening after work and as the family breadwinner he had no choice but to work to support the family.

[62] Jasdeep agreed that he was the sole author of any Family Wizard messages sent under his banner and accepted that sometimes the parties argued over this platform and that some of his responses were less than perfect.

[63] He described Fateh as a trustworthy child who always speaks the truth with him. When confronted with a text message in May 2022 suggesting Fateh shared with Jasdeep everything Amandeep was teaching him about his family and himself, and that he was placing Fateh in the middle of his dispute with Amandeep, he explained that these messages confirmed her anger when she learned Fateh is going to his cousin’s home and the fact that Fateh is uncomfortable speaking truthfully to Amandeep. He denied this was inconsistent with para. 148 of his affidavit in this trial, where he stated that Fateh doesn’t tell him about his time with Amandeep and he doesn’t ask.

[64] When confronted with a series of recent Family Wizard text messages suggesting that his comments are either unhelpful or that his time is more valuable or his issues more important, he explained that Amandeep will often send him repeated messages or message him late at night before work. He told the court that although he responded to Amandeep with phrases like “please use your mind” or “next time use your brain”, these were not meant to be an insult or disrespectful, but rather were a result of her repeatedly raising small issues and requiring Jasdeep to prove menial things to her, such as Fateh being asleep or constantly blaming Jasdeep for things he did not do.

The Applicant’s Sister – Gurdeep

[65] Gurdeep, a married mother of a five-year-old and a 16-month-old, recalled her time living in Surrey and being at Amandeep’s parent’s home on almost a daily basis to help care for Fateh. She had moved to Surrey because her brother and cousins were there. When Amandeep’s parents were away, Gurdeep took care of Fateh who was often dropped off at her place by Amandeep in the morning and picked up again in the evening.

[66] She testified that Amandeep was involved in the move to Belle River from the get-go. She saw videos of potential Belle River homes sent to Amandeep and recalled Amandeep speaking with both her and her father about these potential homes. When the parties first moved to Belle River, they stayed with Gurdeep for about 10 days until the MH was ready.

[67] She spoke of the good schools and nice neighbours and houses in Belle River and how many of the neighbours have kids the same age as Fateh (some of whom are Fateh’s friends) and how her five year old son and Fateh enjoy a close relationship.

[68] Gurdeep observed a gradual change in Amandeep and denied ever demanding that Amandeep had to apologize to her for something Amandeep did or that there was ever a confrontation or disagreement between her and Amandeep.

[69] She recalled the time when her brother and Fateh came to live with her for almost 10 days after police were called and remembered Amandeep coming to her door the very next day and after Jasdeep told Amandeep he didn’t want to see her Amandeep threatened to burn down the house. She and Amandeep stopped communicating after this incident as she came to learn that Amandeep did not like her or her family.

[70] Her brother again moved in with her in July 2022 after the sale of the MH. Prior to moving in with her, she recalled her brother having parenting time with Fateh every Wednesday and alternating weekends. She also recalled how Fateh spent a lot of time with his father when he was not working, and how she and her son would also spend a lot of time with Fateh as they lived close to one another.

[71] After July 2022, she recalled Fateh coming to her home for a week at a time on alternating weeks and during those weeks Jasdeep would not go to work and was always there for Fateh when he had this parenting time. She maintained that she will always be there for her brother and Fateh and that it would be difficult and hard for her to see Fateh if he relocated to Surrey.

The Applicant’s mother – Jaswinder Kaur (“Jaswinder”)

[72] Jaswinder first came to Belle River in October 2021 to help her son take care of Fateh. She had earlier met Fateh when he came to visit her in India for 3 months on each of 2 earlier occasions on or before 2017. She currently holds a visitor’s visa which expires in 2027 and intends to remain here to help with Fateh until at least then. If necessary, she intends to seek permission to extend her stay.

The Applicant’s friend and co-worker – Surjit Gill (“Surjit”)

[73] Surjit, a fellow truck driver who currently works for the same company as Jasdeep, has known Jasdeep and Amandeep since 2016 when they lived in Surrey. He moved to Belle River in 2018 and recalled Jasdeep and his cousins coming to visit him in Belle River in that same year. Jasdeep explained to him that he did not own a house in Surrey and that it would be good for the parties if they could buy a house.

[74] He explained that as owner/operators at the same company, he and Jasdeep have full flexibility regarding time off and time for family. He confirmed Jasdeep’s week-on week-off summer schedule to permit Jasdeep to focus on Fateh and that Fateh has visited Surjit at his home many times and that Jasdeep and Surjit are part of a group of five families with more than 15 kids combined that attend each other’s parties.

[75] When shown comments Amandeep made regarding him in her trial affidavit, he denied making any such comments, and more specifically, ever saying to Amandeep that she should not tell CAS that Jasdeep drinks alcohol. He agreed that he and Jasdeep occasionally drink at home on weekends.

[76] Surjit no longer socializes with Amandeep after an altercation between Surjit’s wife and Amandeep where Amandeep told his wife to move her car from the end of her driveway or Amandeep would call 911.

Gurdeep’s Neighbor – Nitu Khosla (“Nitu”)

[77] Nitu, Gurdeep’s neighbor and friend, has two kids: ages 11 and 6. The children are friends of Fateh and play together with Fateh whenever Fateh is over at Gurdeep’s.

The Realtor – Preetinder Brar (“Preetinder”)

[78] Preetinder acted as agent for the parties for the purchase of the MH. He recalled two visits by Jasdeep to Belle River prior to the parties making a purchase. He dealt mainly with Jasdeep who showed the houses they looked at via video calls to Amandeep who remained in Surrey. The MH was a new-build and Amandeep signed the closing forms remotely and electronically. He recalled conversations with Jasdeep about countertops and brick colours and Jasdeep telling him that Amandeep would be unhappy if a certain type and color wasn’t available.

[79] He eventually met Amandeep in August 2020 when Jasdeep asked him to come to the MH to evaluate the home for sale because of the appreciation in housing prices. He recalled Amandeep stopping him from taking pictures and telling him they were not selling at that time and that she had yet to find work.

Fateh’s Teachers

[80] Rachel Janick, Fateh’s grade three teacher at Lakeshore Discovery school briefly testified. She confirmed having met Jasdeep and communicating with him via email. She described Fateh as a kind student, eager to learn, and smiling everyday. She said Fateh gets along well with others and has friends at school. Ms. Janick equally emails Amandeep and has had a conversation with her to discuss Fateh’s fatigue after some reading.

[81] Julia Faust, Fateh’s grade two teacher at the same school also testified. She has also met Jasdeep and Amandeep and had a number of brief conversations with them about Fateh’s progress and Fateh making friends at school. Ms. Faust briefly reviewed Fateh’s two report cards for that year which portray a kind, polite boy who makes friends and is quietly respectful of other’s views, and easy to get along with. She recalled Fateh’s eagerness to do the work, please others, and a consistently positive attitude.

OCL Voice of the Child Report Writer – Marsha McHardy

[82] On July 20, 2022, Hebner J. requested OCL complete a Voice of the Child Report. Clinical investigator Marsha McHardy was asked to obtain Fateh’s views and preferences to assist the court in deciding mobility and parenting issues.

[83] She interviewed Fateh via Zoom on two occasions: September 30 and October 4, 2022. She explained to Fateh, seven at the time, that he was not to be influenced by either parent and described Fateh as “willing to engage” and at times “difficult to have him focus”.

[84] During the first interview, Fateh expressed that he “loves” school and has friends at school. He was aware that his mother wants to return to Surrey and expressed that he did not want to go (to Surrey) as it “will be boring” and he will “miss his Dad”. Fateh said his mother does not listen to him and would be mad that he said that.

[85] Fateh had heard “lots of fighting and arguing” between his parents and said that his Dad told him to say that Fateh likes his Dad because he “listens to me, loves me and I would be happy with him”. Fateh said he liked it in Belle River and described it as beautiful.

[86] Fateh said he wanted to spend most days with his Dad and just “one day” with his Mom. He went on to explain that his father allows him to have friends over, but his mother does not allow him to do so and that it is “boring” at his Mom’s. Fateh explained that his father told him “not to tell secrets”.

[87] Fateh expressed that he is “scared” to tell his mother much and that his father is “easier to talk to”. He made clear when asked what he would tell the judge in this matter that “I want to stay with my Dad. I love him all the time”. Fateh went on to list three wishes: to live and play with his father, read, and sing songs with him.

[88] Fateh ended the first interview by telling the clinician that his Dad told him to tell the clinician “not to give the report to my Mom” because she might “get mad”.

[89] During the second interview, Fateh repeated that he forgot some of the things his father had told him to say during the first interview. He again confirmed he has lots of friends at school and enjoys playing “with family and playing video games”.

[90] Fateh maintained that he feels “unhappy if I cannot live with my Dad” and is worried that if he goes to B.C., he will miss his Dad and they will both be sad. He reported that he likes his father’s house more than his mother’s because his Dad’s house is “fun” and he “gets bored” at his mother’s house.

[91] He described wanting to talk to his father if he is feeling sad, scared or upset and feels “happy inside” when he is with his father.

[92] Fateh said that his mother did not tell him anything to say and that his father told him to “say the truth”.

[93] The clinician summarized that Fateh spoke positively about his father during both interviews as well as a clear desire not to move to Surrey. However, the clinician reported that she found it difficult to tell if Fateh was speaking truthfully or simply stating what his father may have encouraged him to say. Fateh may have a stronger relationship with his father, but the clinician cautioned the reader to account for Fateh’s tender age, development, and the concern that some of his views may have been influenced by his father.

[94] Marsha McHardy’s testimony confirmed that she based her report solely on the two interviews with Fateh and was unaware of the earlier police involvement, the summer 2021 events, and the court actions in B.C. She confirmed that Fateh understood his Mom wanted to go to B.C. with Fateh and his Dad wanted him to stay in Belle River. Fateh expressed that he could not have friends over to his Mom’s house.

[95] The clinician explained that she had authored roughly 40-60 Voice of the Child reports and felt that at age seven, Fateh may not have understood what others might read into some of the comments Fateh made to her. While accepting that Fateh clearly stated some facts and perceptions, she maintained concerns with some of his extreme positive expressions towards Dad and negative expressions towards Mom, suggesting that this type of “all or nothing” thinking in the absence of concrete examples may call for caution. However, she urged the court not to disregard everything Fateh said to her and insisted that she accepted many of the basic things Fateh told her as his own independent perceptions.

[96] More specifically, she accepted that Dad told Fateh to tell the truth and that Fateh did so. She accepted as independent Fateh’s comments to her: i. That his Mother doesn’t listen to him and would be mad at him for saying that; ii. That he would miss his father if he moved away and he doesn’t want to move away and wants to maintain the present stability; iii. That he clearly understood what each of his parents wanted the court to do; and iv. That his father was easier to talk to and lets him have friend’s over.

[97] She attributed comments that his Mom would be mad if she got the report and that his Dad would be very sad if he moved as examples of comments that Dad clearly made to Fateh.

The Respondent – Her Affidavit and Viva Voce Testimony

Life in Surrey, B.C.

[98] After marriage in India, Amandeep returned to Surrey in March 2014 in the hope of having a better standard of living in Canada. She became pregnant with Fateh in February 2014 and Jasdeep was unable to join her until after Fateh’s birth due to delays in the visa process. During those months, she came to rely heavily on her family for support during her pregnancy. Her mother retired early to help care for her first grandchild.

[99] Jasdeep arrived in December 2014 and initially enjoyed a good relationship with her family. Fateh’s early relationship with his maternal relatives was excellent and they provided much financial support by buying food and not charging rent or daycare fees. This allowed Jasdeep to send much of his earnings to India to repay a family loan.

[100] Amandeep returned to work in May 2016 as a bookkeeper but had a flexible schedule to plan Fateh’s appointments and do household tasks while Jasdeep’s hours were long and erratic. She described Fateh as attached to her as she was the primary parent.

[101] Amandeep is close with her brother (and his wife) who she insisted never interfered in her life. Fateh and her brother’s son enjoy an excellent relationship. She was adamant that Gurdeep played no role in caring for Fateh in Surrey.

[102] Jasdeep used eyedrops to effectively control his allergies and took medication for anxiety

The Decision to Move to Belle River

[103] Jasdeep took a trip to Belle River in late 2018 to look at investment properties with a close friend. In April 2019 after asking her to pack her bags and come look for a home in Windsor, which she was unable to do on short notice and unable to convince Jasdeep to wait and bring both her and Fateh, Jasdeep returned to Windsor. Text messages from him alleged that he was interested in buying an investment property that they would rent out for 6-12 months and later sell for a profit.

[104] Amandeep was surprised to find out on July 14, 2019 that Jasdeep quit his job and moved to Windsor and denied ever having a conversation with Jasdeep’s sister about buying a home in Windsor. Nor did she receive any videos about Windsor properties from Gurdeep.

[105] The decision to relocate to Belle River was unilaterally made by the applicant after the MH was purchased and without any consultation with Amandeep. She followed him, not because she wanted to but because she didn’t want to separate from him at that time. She denied any interest in choosing colours or products for the MH because it was being bought as an investment property

[106] Upon arrival she was shocked with the condition of the MH and initially stayed with Gurdeep. She described Gurdeep as someone who “loves to interfere in other people’s lives” and wasn’t prepared to let her do so to her family.

[107] After Fateh started school, Jasdeep’s behaviour towards Amandeep changed and he started finding faults in her and criticizing her.

[108] She testified that Jasdeep told her she didn’t have to work but never gave her any money which forced her to rely on her family in Surrey for financial support. She told Jasdeep she wanted to work and become financially independent.

[109] She had a few friends in Belle River but was later told by Jasdeep to stop visiting these friends. She always wanted to meet people and socialize with others in Belle River.

Fateh’s Fifth Birthday

[110] Family from both sides attended this stressful event before which Amandeep believed she was required to apologize to Gurdeep for some unknown reason for Gurdeep to attend the party. Amandeep was next insulted and yelled at in front of her own family and Fateh and recalls Gurdeep telling others that she “has to pay the price for this day”. This was but one example of Gurdeep interfering in Amandeep’s life and marriage and resulted in several marital conflicts. This was also the start of Jasdeep drinking alcohol alone to excess.

[111] Amandeep explained that during the pandemic, she was responsible for caring for Fateh, the MH, and Fateh’s on-line learning; she did so without a support network and while feeling isolated. She spoke with Jasdeep about working and he wanted her not to do so but to be home with Fateh.

Allegations of Family Violence

[112] Amandeep alleged that she was mentally, verbally, and physically abused from the beginning of the marriage. This included being hit, slapped in the face in front of Fateh, as well as regular violence after Jasdeep consumed alcohol. Jasdeep also suffered from anxiety and shared with Amandeep that he had contemplated suicide, smokes, and takes drugs to relieve his anxiety.

[113] Amandeep described her and Fateh “living in constant fear of Jasdeep and his extended family members”. Fateh has witnessed her being “mentally and physically controlled” over the last seven years by Jasdeep.

[114] Amandeep denied making any suicide attempts or suicide threats, and denied any erratic or aggressive behaviour.

[115] She described Jasdeep’s involvement with Fateh as limited and explained that she gets Fateh ready for school, feeds, and cooks for Fateh, attends all parent meetings at school and helps Fateh with his homework. Jasdeep spent maybe an hour with Fateh in the evenings and was always drinking, often at the truck yard or hanging with friends.

[116] Amandeep believes Fateh used the cameras throughout the MH to keep a constant watch on her and that he has recorded her phone conversations when he is not home.

[117] She testified that she had to compromise all the time and that this was very difficult for her. She has never called the police on Jasdeep because she didn’t want Fateh to be exposed to police.

[118] She described an incident that was very hurtful to her with Jasdeep’s parents (who she previously respected and got along with) where they made negative comments about the colour of her skin and told her she had to do what Gurdeep told her to do. She had a bad relationship with Gurdeep who interferes in her and others lives.

The May 2020 police incident

[119] Amandeep offered a much different version of this event. She believed this was the second call to police in a 10 day stretch and occurred after an argument which prompted Jasdeep to again call police who upon arrival, asked Jasdeep to leave the MH. CAS was notified and Amandeep shared with the CAS worker the physical abuse she endured during the relationship as well as Jasdeep spying on her and not permitting her to turn the MH camera off.

[120] After this incident, Jasdeep called Davinder and asked him if he would take care of Fateh. Amandeep said that Jasdeep has constantly threatened her in front of Fateh that he would leave her and take Fateh and that Fateh lives in “constant fear” that he will be taken away forever.

[121] Despite all of this, Amandeep, for Fateh’s sake, tried to resolve her marital issues and give Jasdeep a chance to change his ways, including apologizing to Gurdeep for no reason. Jasdeep continued to drink excessively, use abusive language and scream at Amandeep, threaten to move to India and never return. On boxing day, 2020, he kicked Fateh’s food off the table and broke the TV remote. Amandeep would often have to discard Jasdeep’s empty alcohol bottles so Fateh would not see them the following morning.

[122] Jasdeep’s behaviour developed a pattern once CAS became involved such that he treated her better around the time he knew a CAS worker would contact Amandeep, who continued to want to try to make the marriage work.

[123] She testified that she asked CAS to close their file because Jasdeep forced her to do so.

Summer 2021 trip to Surrey

[124] Amandeep explained that she spoke with Jasdeep on July 23, 2021 about the visit and that he became very aggressive and initially denied her permission until his extended family members persuaded him (after Amandeep sought their help) to permit her and Fateh to go.

[125] Jasdeep initially refused to fund the travel and then booked a ticket for her only and she was not prepared to leave Fateh in Belle River with Gurdeep so she called her brother who bought tickets for both her and Fateh which cost more as they were closer to departure date.

[126] Jasdeep spoke with Fateh twice a day through video and phone calls but refused to speak with Amandeep. Amandeep’s phone stopped working on August 16, 2021 and Jasdeep spoke with Amandeep’s mother. The following day, CAS worker Anu Kad called Amandeep about her allowing Fateh to lose contact with Jasdeep and she assured she would make contact and did so when her phone was fixed.

[127] Amandeep did not have a pre-meditated plan to separate when she left for Surrey. However, as Jasdeep was refusing to speak with her she became worried and anxious about her return and now felt that it was “unsafe to travel back with Fateh”. She then made the decision not to return which caused Jasdeep to send threatening messages once he found this out. He advised Amandeep he would hurt her, and she would never see Fateh again.

[128] Amandeep did not restrict Jasdeep’s communication with Fateh except for the one day her phone was locked. Fateh was happy to now be free from Jasdeep’s bursts of anger and alcohol abuse.

[129] She testified that her phone broke down between August 16-19, 2021 and that’s why Jasdeep could not communicate with Fateh.

[130] Jasdeep initially appeared willing to move back to B.C. but was unwilling to leave his extended family.

[131] Amandeep next obtained protection and restraining orders without notice on August 24, 2021 that prohibited Jasdeep from contacting her or Fateh and these orders were later set aside on September 20, 2021. She testified that she brough this application ex parte because Jasdeep and his parents used to threaten her that they would pull Fateh away from her.

[132] In her testimony, she made clear that she made “a big mistake” by bringing this application in B.C. without notice and is still paying for that mistake. She would never act in this fashion again and has learned her lesson. She acknowledged Jasdeep’s important role in Fateh’s life.

[133] Amandeep’s mother relocated to Belle River in October 2021 to support and help her care for Fateh, and they currently rent a basement unit for $1,700/month.

[134] Amandeep retrieved her personal belongings from the MH on November 3, 2021 and was shocked to see the home partially cleaned out and it was readily apparent that Jasdeep and Fateh were not living there. Much of Amandeep’s and Fateh’s personal belongings were gone.

[135] Communication with Jasdeep was now primarily through Family Wizard and Amandeep believes that Gurdeep drafts and sends many messages to her on behalf of Jasdeep due to Jasdeep’s English not being as good as Amandeep’s.

[136] Amandeep also believes that Jasdeep is still working long hours which makes it impractical to increase his parenting time with Fateh.

[137] Amandeep is currently working as a bookkeeper 21 hours/week at $23.75/hour and has recently started a new remote part time job at the same rate with more flexible hours. If she can return to B.C., she could work remotely for her brother starting at $4,000/month which will increase her income while decreasing her living expenses.

[138] If permitted to relocate to Surrey, Amandeep is agreeable to at least three virtual calls per week between Fateh and Jasdeep, monthly visits by Jasdeep where she will cover the costs of his flights and hotel and would come to Belle River with Fateh over the Christmas and March break and the summer break.

[139] She testified that Fateh misses his old friends and old school in Surrey and that she would welcome frequent visits by Jasdeep and pay for them as well as facilitate and support daily video calls. She outlined the various flight options from various locations, that included low cost and quick flight times.

[140] She would reside in a basement apartment in the family home and enrol Fateh in daycare while she works and in numerous sporting activities. She would receive the necessary financial and emotional support from her family and reduce the considerable stress she currently endures in Belle River.

[141] She is amenable to joint decision-making regarding Fateh’s health and education and believes that Gurdeep’s dislike of her has resulted in Fateh not wanting to go to her house.

[142] She testified that she should be the primary decision maker because she does everything with Fateh who is emotionally attached to her. She asked the court to have faith in her to follow any further orders because she has “learned my lesson”.

[143] She testified that she felt bad after reading the VOCR because Fateh was stressed, is not afraid of her, and shares everything with her. She was mad at Jasdeep for involving Fateh in this litigation.

[144] She explained that she always follows the court order even when Fateh is sick or if she gets to the exchanges early.

Current Expenses

[145] She testified that her current rental agreement for $1,700/month including utilities will soon double. She outlined her current sources of income (including employment, spousal and child support, support from her parents and the Child Tax benefit) and reviewed her monthly expenses averaging $5,225/month (not including what her mother pays for which is at least $,1000/month). She explained that on average her expenses are about $1600/month more than her sources of income and that she has no savings.

[146] If permitted to relocate, her expenses would plummet, and she could direct more money to Fateh’s education savings. She would work for her brother and double her current earnings while working from home and caring for Fateh. She would have the money to enrol Fateh in the activities she wants including a dedicated football coach.

[147] She feels isolated from most of her family and relies heavily on them for emotional and financial support. Jasdeep and his family no longer support her and have stopped her from seeing her friends.

[148] In cross examination, she made clear that she wants the current parenting time order to remain in place. She maintained she is actively looking for full time work but cannot find it locally.

[149] She agreed proceeds from the MH, for which she would eventually be entitled to half, exceeded $318,000.

[150] She maintained that she would happily facilitate more time for Jasdeep with Fateh provided he tells her about these times in advance.

[151] She denied being able to work for her brother remotely and said the nature of the work required her to be physically in Surrey. She suggested that Jasdeep simply move as well to Surrey if he wanted extra parenting time.

[152] When asked why she didn’t tell police about her allegations of violence by Jasdeep when they attended on May 2020, she explained that he had not hit her that day but had done so previously. She also told the police about Jasdeep raising and using his hand in the past. She agreed that no charges were laid by police that day.

[153] When confronted with a statement to a CAS worker on January 5, 2021 that things were going well and there was no marital conflict, she explained that she was uncomfortable with both the CAS worker and the presence of Jasdeep.

[154] When challenged with a May 20, 2020 comment to Child Protection Worker Nicole Marion denying any alcohol or drug use by her or Jasdeep, she explained that Jasdeep’s friends (Surgit and Manfred Gill) threatened her not to report any of this so that Jasdeep could remain safe from them. She went on to state that she didn’t report any of this behavior to police because she was trying to protect the marriage. She did tell CAS that Jasdeep drinks despite the absence of this in any of the CAS notes provided.

[155] She maintained that the plan was to buy the Belle River house as an investment property and that Jasdeep called her from Windsor to tell her that he had found a property. She recalled attending at the notary’s office in BC to sign the documents and insisted that the notary altered the dates (from July 20 to backdate to July 14) based on Jasdeep’s instructions.

[156] When shown a series of documents that she both acknowledged and signed (relating to Land Transfer Tax and an Acknowledgement and Direction from Purchaser) which clearly stated that the MH was to be occupied by her and Jasdeep as their primary residence, she explained that this was Jasdeep’s decision and she stood beside him. She explained that although initially bought as an investment property, it needed to then be treated as a primary residence.

[157] She explained that she never completed the 2020 aesthetician online course she enrolled in because all of the information for the course was on Jasdeep’s laptop. She remains enrolled in the course and is gradually working to complete it.

[158] She accepted that Jasdeep bought the original tickets for her in July 2021 to go to Surrey but insisted she rejected this ticket because it did not include a ticket for Fateh. When shown a document (Exhibit O in Jasdeep’s affidavit) that referred to seats for both her and Fateh for this flight to Abbottsford, she explained she saw this for the first time in trial and that at that time Jasdeep told her he only bought a ticket for her.

[159] When further confronted with a screenshotted message referring to “tickets”, she explained that she called Jasdeep after this message, and he confirmed that the ticket was only for her to travel.

[160] She explained that she started the case in BC in August 2021 because Jasdeep was making threats and she reported those threats to police in BC. While accepting that her actions by proceeding ex parte were a mistake, she agreed that she was acknowledging this mistake for the first time at trial but had not done so at various points earlier in these proceedings.

The respondent’s brother – Davinder

[161] Davinder continues to live with his parents, his wife, and his son in Surrey. He remains very close with his sister Amandeep and Fateh who he speaks with almost daily.

[162] He recalled Jasdeep and his family were in India when Fateh was born and that his mother quit her job and he took a three week vacation to care for Fateh. When Jasdeep arrived in December 2014, he almost immediately left again in January 2015 for more than three months. When Davinder’s wife, a nurse, came on scene, she also took care of Fateh.

[163] When Amandeep went back to work in Surrey, his mother became Fateh’s primary caregiver during the time his sister worked. His father, a healthy, loving, and happy person, also had a very good relationship with Fateh. Davinder never witnessed his parents use physical discipline on his son and never saw his father act aggressively towards his son.

[164] Jasdeep shared with him that Jasdeep’s father needed help from Jasdeep paying off a debt which caused Jasdeep to work long hours in Surrey. Jasdeep also told him that he liked living with his family in Surrey, even though he suffered from seasonal allergies effecting his eyes.

[165] He recalled a plan by the parties to buy an investment property and generate a profit from it and use the profit to buy a house in Surrey. His sister told him about this plan and that she was happy about it.

[166] He travelled to Belle River in 2019 for Fateh’s birthday party, which he described as very stressful. He described Jasdeep’s family as demanding and testified that they shouted that his sister apologize. This was followed by a big verbal fight and later that evening, he observed Jasdeep going to the MH garage to drink alone. This was the first time he saw Jasdeep do this (although he also saw him drinking the following evening with a friend) and it shocked Davinder.

[167] After this brief visit to Belle River Jasdeep wouldn’t answer Davinder’s calls and called Davinder one time aggressively asking him to look after Amandeep and Fateh as he didn’t need them anymore.

[168] He referred to a rare March 30, 2020 text message exchange between he and Jasdeep where he asked Jasdeep to forgive him and pleaded that he and his family didn’t do anything wrong. He explained that at this time Jasdeep was complaining about Amandeep and would say extreme things and wrongly blame her for things. Jasdeep would send Davinder recordings of Amandeep’s conversations which he testified he still has.

[169] Jasdeep would swear at Davinder and his family and made some text message threats on WhatsApp including that Amandeep would “suffer the worst harm”.

[170] The aggressive request to have Davinder take care of Amandeep and Fateh happened in the summer of 2020.

[171] Fateh has an excellent relationship with Davinder’s son and described the two-bedroom basement unit where Amandeep and Fateh would live rent free if they returned and that Fateh would have his own bedroom.

[172] He described his company, his flexibility regarding work hours and his job offer to her of $4,000-$4,500/month to start as his work from home bookkeeper with salary increases every two-three months as she takes on more responsibility.

[173] He will support his sister and Fateh financially and emotionally by returning them to the environment they lived in so happily four years ago. He will also lend financial support to Jasdeep to fly him out to Surrey and pay for his expenses.

[174] He believes Fateh’s return to Surrey will reunite him with his friends and old school and that Fateh misses Surrey and will be happy to return. He testified that the Windsor environment is not very good for Fateh because it is quite different from Surrey where both Fateh and Amandeep can live rent free and be financially independent.

[175] He explained that he speaks daily with his sister and sends money, sometimes weekly, to her in Windsor for rent, food, car and as needed. He estimated that this added up to between $2,000-$3,000/month.

[176] He did not believe there was a period between July 2021-October 2021 when Fateh was not communicating with Jasdeep except for a day or two when Amandeep’s phone wasn’t working.

[177] He knew none of the details about a restraining order Amandeep obtained in August 2021 even though he helped pay for the legal fees to obtain the order and would drive her to this lawyer’s office.

[178] He has not seen Fateh in person since October 2021. He explained that Amandeep does some work for his company now and that she can do some of the accounting work needed remotely but not all the bookkeeping.

[179] He described the parties as very happy when they lived in Surrey. Once they moved, he explained that Jasdeep would call him and aggressively explain his frustrations about the marriage and ask Davinder to talk to his sister and calm her down.

[180] He accepted that if Amandeep is not permitted to relocate to Surrey with Fateh, he would continue to support her financially.

The Respondent’s father – Jaswant Singh Momi

[181] Jaswant described a good and loving relationship he shares with Fateh. He also described how he supported Amandeep and her family when they lived in his home in Surrey from 2014-2019 rent free, and how he gave them cash for groceries and use of his car. At that time, the relationship between everyone at the home was great. Now, however, he has no relationship and does not communicate with Jasdeep.

[182] He denied ever using any form of physical discipline.

[183] He recalled the time when Jasdeep came home from work one day in 2019 and packed and announced he was moving and both Jaswant and Amandeep found this astonishing because there was no discussion about this in advance and he thought they bought the Ontario property intending to rent it out.

[184] He testified about a May 2020 and second early 2021 call from Jasdeep asking him to take his daughter and grandson back. He placed a follow-up call to Amandeep who told him everything was fine after the first call. He and his family paid Amandeep and her family a visit in 2021, where he observed that everything was normal. He believed everyone in the family seemed happy.

[185] He recalled seeing Jasdeep drinking in his garage during this trip on both days and was surprised because he had not seen him drinking before.

[186] He was unaware when Amandeep and Jasdeep arrived in July 2021 for a visit that return tickets back to Ontario had been purchased for them, or that Amandeep intended to remain in Surrey with Fateh. He was also unaware that a restraining order had been obtained by Amandeep against Jasdeep and a court case had been commenced and believed that Fateh and Jasdeep regularly communicated while they remained in Surrey.

[187] He described himself as “shocked” when the parties moved to Belle River but accepted their right to make decisions about themselves.

[188] He also agreed that he would continue to support his daughter financially if she remained in Belle River.

The Respondent’s mother – Bhakshish Momi

[189] Bhakshish stopped working after the birth of Fateh to help take care of him when the respondent lived with her in Surrey. She explained that things were very good when the parties and Fateh lived with her and her husband in Surrey and that her husband was never physically violent to the children. She described her daughter telling her that the applicant left his job and was moving to Belle River.

[190] She moved to Belle River in October 2021 to help her daughter and Fateh and at the urging of her husband. She tried to make everyone happy and helped around the home with chores. She enjoys a very good relationship with Fateh and will remain in Belle River if her daughter and Fateh are not allowed to move. She misses her family in Surrey and would offer the same level of support to her daughter and Fateh if they are permitted to relocate.

[191] She explained that by moving to Surrey, her daughter could live rent free, have no grocery bills, and have more money to spend on Fateh.

Credibility Assessments and Findings of Fact

The Applicant and his family

[192] I watched and listened carefully to his evidence. I found him, for the most part, to be a most impressive witness.

[193] More specifically, I accept his evidence that he is not and was not an alcoholic or drank excessively, that he consulted with Amandeep about moving to Belle River, and that she was aware that the MH was being bought as the primary residence for the family, that he was unable to communicate with Fateh for a period of many weeks between August and September 2021, that he was not violent towards Amandeep, and did not strike her or threaten her with violence.

[194] I will have more to say about his evidence later in my reasons.

[195] The evidence of his sister Gurdeep was helpful to the limited extent that she confirmed Jasdeep’s love and affection for Fateh, and her willingness to be there for both of them. Although I heard much evidence about animosity between Gurdeep and Amandeep, and who was to blame and who said what to who at which gathering, I need not make definitive findings about these dated and unrelated events other than to rely on them as narrative to explain the obvious breakdown in relations between the two families.

[196] I was also impressed with many of the arms-length or non-family witnesses called by the applicant. I accept the realtor’s evidence that Amandeep was involved in choosing finishes for the MH and well aware that it was being bought as the primary residence.

[197] The teachers from Fateh’s school were delightful witnesses whose evidence I accept and who confirmed Fateh’s a lovely and friendly little boy who makes friends easy and does well in school. They also confirmed that both parties are invested in and connected to his schooling activity and progress. Jasdeep’s friend and co-worker Surjit confirmed for me that Jasdeep’s employment is both stable and flexible and that they both drink occasionally.

[198] The clinical investigator and author of the VOCR, Marsha McHardy, was an excellent witness and of tremendous assistance to me. She was exemplary in ensuring that she fairly presented her findings and made clear the reservations that she had in her report considering her suspicions that the applicant may have told Fateh some things to say.

[199] However, even with those concerns, she carefully outlined for me at para. 96 above those statements that were made by Fateh that she believes were not coached and were genuine. She was careful to highlight for me that Fateh’s father told him “To tell the truth” and that her concerns about Jasdeep’s influence related to Fateh’s extreme positive or extreme negative views about each parent, but not too much of his other testimony.

[200] It is somewhat ironic that his disclosure that his father told him certain things to say, speaks volume as to the veracity of his statements. If I am to accept this as truthful, and I do, I am equally inclined to accept his remaining utterances as genuine and truthful, and I do.

[201] Marsha made clear she was unaware of the August 2021 Surrey incident.

[202] Although in the traditional sense she may have slightly exceeded the typical VOCR by recording and sharing her impressions, she did so in good faith and in the best interests of Fateh. I will have more to say about this report later in my reasons.

The Respondent and her family

[203] I also watched and listened carefully to the respondent’s evidence and believe that she too genuinely and unconditionally loves Fateh. She wants what is best for him. However, I nonetheless am left with many concerns about her testimony and the contents of her affidavit.

[204] I found many of her answers evasive, non-responsive to the questions asked, or simply not worthy of belief. For example, her story of her phone breaking down makes no sense as the reason for cutting off communication. Other family members had phones and she could have easily made efforts to use those if she truly wanted Fateh to speak with his father in August 2021. She was in the process of obtaining an ex parte order prohibiting Jasdeep from contacting her and Fateh, and her explanation defies both logic and belief.

[205] Her explanations for why she didn’t share allegations of excessive drinking and family violence with both police and CAS are also hard to comprehend. Her additional suggestion that she in fact told them about these allegations and they collectively failed to capture this in any of them in their notes again defies logic and belief, given the statutory duties and requirements placed on investigators in both of these public safety agencies.

[206] Her descriptions in her affidavit refer to “constant threats” in the presence of Fateh and of her and Fateh both living in “constant fear” of Jasdeep are not supported by others. Even her own parents saw nothing out of the ordinary in terms of violence during their visit.

[207] I do not dismiss these allegations of violence lightly. I am mindful of how difficult they are to prove, how they often go unreported, how they often take place in the absence of witnesses and behind closed doors, as well as the many barriers to disclosing these events in the context of family law proceedings.

[208] I also accept that exposing children to family violence places them at an unnecessary risk of both emotional and physical harm.

[209] However, unsubstantiated allegations must not interfere with what would otherwise be appropriate outcomes in mobility and parenting time decisions. Having found that no credible evidence of family violence by Jasdeep has been established, I need not consider its impact on the appropriateness of any orders.

[210] Her repeated reference of being threatened by Jasdeep, his family, and his friends are not supported by the evidence I accept.

[211] Her explanation about buying an investment property in Belle River runs directly in the face of overwhelming documentary and viva voce testimony to the contrary.

[212] Her story about having only one ticket bought for her and not Fateh for the July 2021 trip to Surrey also cannot withstand scrutiny in the face of overwhelming text message evidence and receipts that show two tickets were bought. I reject her testimony that she never intended to stay in Surrey and that she brought the application because of threats from Jasdeep and his family.

The respondent’s mother, father, and brother.

[213] I have no doubt that all three love the respondent and Fateh and want what is best for Fateh. They are clearly invested, emotionally and financially, in the respondent.

[214] However, given my acceptance of much of the applicant’s evidence, I reject their evidence with respect to having no knowledge of why Amandeep went to court and of her broken phone and of the MH being bought as an investment party.

[215] Much time was spent discussing a trip to Belle River for Fateh’s birthday and observations they made of Jasdeep and Gurdeep. Having found that Jasdeep was not excessively drinking, I need not spend much time trying to figure out what happened at a child’s birthday party other than to draw the obvious conclusion that these two families dislike and distrust one another.

[216] It was clear to me that all three were here to support the respondent and to corroborate some of her story. They are loving and caring family members but perhaps not accurate historians.

Positions of the Parties

[217] The applicant argues that Fateh needs stability and predictability in his life. He points to the positive aspects of Fateh’s life in Windsor with family, friends, and a good school where Fateh thrives. The VOCR makes clear that Fateh does not want to relocate.

[218] While acknowledging the bond and caring relationship Fateh enjoys with his mother, the applicant insists he can equally meet the needs of the child and enjoys a strong support network and a stable income in Belle River. He argues that Fateh should benefit from a meaningful, direct, and regular relationship with both parents.

[219] The respondent will continue to enjoy the presence of her mother and the financial support of her father and brother if she remains in Belle River.

[220] The respondent counters that this court should find a history of family violence by Jasdeep against the respondent, and place great weight on this in assessing future risk to Fateh and Fateh’s best interests.

[221] As the respondent is currently the primary custodial parent, the respondent urges me to place much weight on her views and financial circumstances in the context of deciding relocation.

[222] The respondent asks me to find the applicant’s behaviour, including many of his text messages, as objectionable, insulting, and hurtful. The respondent urges me to place no weight on the VOCR given the applicant’s undue influence on the child and characterizes the report as tainted and unreliable.

[223] The respondent points to her plan of care and relies on her willingness to increase the applicant’s parenting time if he travels (at her expense) to B.C. The respondent has followed all orders since returning from B.C. and this should clearly demonstrate her willingness to follow any future orders.

Findings of Fact

[224] Going forward, and based on my earlier credibility assessments, I make the following findings of fact: i. The applicant did not engage in family violence or in a pattern of coercive and controlling behaviour towards the respondent or Fateh, and did not compromise the safety of Fateh nor cause Fateh to fear for his safety; ii. The applicant, largely due to the nature and demands of his occupation as truck driver, did not and does not excessively consume alcohol; iii. The applicant bought the MH in Belle River with the clear understanding that he and the respondent and Fateh would make this their primary residence, and the respondent willingly participated in this acquisition, whether to support the marriage or ensure that the family unit remained together; iv. The respondent knowingly rejected two tickets bought by the applicant for her flight to and from Abbottsford in July-August 2021 and instead relied on her brother to buy these tickets and the applicant to bring her to the Hamilton airport. Thereafter, she unilaterally decided to attempt to remain in B.C. and sought out and obtained ex parte orders isolating the applicant from Fateh for many weeks and only relenting (despite CAS and counsel intervention in writing) after a court ordered her to return; and v. The parties have equally demonstrated a willingness to care for and meet the needs of the child and an unconditional love for the child.

[225] For clarity, I pause to make clear that the following issues raised in evidence are neither relevant nor material and in most cases, insufficient for me to reach determinations as to what occurred. I reference them briefly only because much time was spent discussing them. They include: i. Whether Jasdeep and his sister Gurdeep were actively involved in Fateh’s life when they previously lived in Surrey is of no consequence to me and I am unable to decide which competing version of events is accurate; ii. Any allergies and medication Jasdeep may have required or will require for his allergies in B.C. which if true, have no bearing on this outcome; iii. What may or may not have transpired at various family gatherings and who may or may not have said bad things about the other. Simply put, the parties dislike one another and one another’s families, and I need not and cannot determine with specificity what happened at Fateh’s fifth birthday party; iv. The endless Family Wizard communications filed and referred to assist me to the limited extent that they demonstrate the same ongoing difficulty with the party’s ability to cooperate when dealing with issues affecting Fateh, but I need not and cannot determine who was at fault for which exchange; v. The applicant may indeed have had to help his family in India with debt when he moved to Surrey but that is also of no consequence to me; vi. The reason a camera was installed in the MH is also of no consequence beyond my finding that it was not intended to spy on the respondent; vii. I heard and read evidence of repeated May 2020 suicide threats or attempts by the respondent, which she denies. I am unable to determine if these are true but have no evidence before me now that she poses a risk to harm herself or others, including Fateh.

[226] I next turn to the issues I must decide.

Parental Mobility Rights

Burden of Proof

[227] Section 16.93 of the Divorce Act, R.S.C. 1985, c. 3 sets out the test for determining which party bears the burden of proof.

[228] The evidence before me, based on para. 4 of the order of Bondy J., dated October 19, 2021, and para. 1 of the order of Howard J., dated July 13, 2022, both of which remain in force, and both of which appear to be substantially complied with, is that Fateh spends most of his time with his mother. She is the one who seeks to relocate Fateh to Surrey.

[229] Accordingly, s. 16.92(2) places the burden of proving that the relocation would not be in Fateh’s best interests on the father, Jasdeep, who opposes the relocation.

Best Interests of Fateh

[230] Section 16 of the Divorce Act makes clear that I must only consider the best interests of the child, Fateh, when making any form of parenting order.

[231] Primary consideration must be given to Fateh’s physical, emotional, and psychological safety, security, and well-being.

[232] A list of non-exhaustive factors that I must also consider are set out in s. 16(3). I need not recite these factors.

[233] Section 16.92(1) of the Divorce Act sets out a non-exhaustive list of additional factors to be considered in determining what is in Fateh’s best interests when deciding whether to permit Amandeep to relocate with him to Surrey. I need not recite the full list here.

[234] In Gordon v. Goertz, [1996] 2 S.C.R. 27, the Supreme Court of Canada clearly articulated that the focus must be the best interests of the child regarding the child’s needs and the ability of the respective parents to satisfy or meet those needs. Courts must have regard for the existing parenting time and decision-making arrangements in place, the views of the child, the impact or disruption to the child arising from a relocation and the desirability to strive for “maximum contact” between the child and both parents: Goertz, at para 49.

[235] The notion of “maximum contact” has evolved with time and given the recent amendments to the Divorce Act in 2021 has been recently referred to as “maximum parenting time” principle: Periera v. Ramos, 2021 ONSC 1737.

[236] In short, I must focus on Fateh’s best interests which include his physical, emotional, psychological well-being, and overall happiness.

[237] As per my earlier findings, I accept that both parents are loving and caring parents who are each, with the support of their respective families, able to adequately provide for and care for Fateh.

[238] Each parent has demonstrated to me a strong relationship with the child, an ability to meet and provide for the child’s needs, a history of demonstrated care, and a plan of care going forward that would meet many of the needs of the child.

[239] The VOCR report makes clear to me that Fateh does not want to leave Belle River and relocate to Surrey with his mother. The respondent urges me to give little to no weight to this expression given the coaching by Jasdeep and him telling Fateh what to say to the OCL clinician.

[240] I must consider the likely influence of Jasdeep to some of Fateh’s assertions and statements to the OCL. However, I must also consider the following: i. Fateh is a kind and friendly eight-year-old boy (seven at the time of these two interviews in September-October 2022) who clearly understood the two alternative living arrangements at play; ii. His statements about remaining in Belle River were clear and unambivalent. He wants to stay with and live with Dad. He does not want to move to Surrey. This view was consistent across both of his interviews; iii. Although some comments regarding the extreme positives about Dad and extreme negatives about Mom need to be seen with caution given his lack of concrete examples to support these positions and his admission that his Dad told him to say certain things, his Dad also told him to say, “the truth” and I accept that, for the most part, he did so.

[241] Let me be clear: Although only one factor in a constellation I must consider, I accept that the voice of Fateh and his wishes, views, and preferences in this regard are for him to remain in Belle River at his school, near his friends and family, and with more time with his Dad. Although only seven at the time, he is a mature young boy who understood the nature of the inquiries.

[242] I next turn to the statutory factors I must consider in light of Amandeep’s request to relocate Fateh (ss. 16.92(d) and (e) do not apply to these circumstances).

Reasons for Relocation – s. 16.92(a)

[243] The respondent says she wants to be close to her family, Fateh’s old friends and old school, and wants a better paying job with subsidized living expenses which allow her financial independence.

[244] However, Fateh was in school in Surrey until 2019 (when he was five or less) and then for a few months in 2021. The remainder of his time was in Belle River. The evidence that he thrives at school in Belle River is unchallenged. The evidence that all of Amandeep’s financial family support would continue if she remained in Belle River is undisputed and reaffirmed by each family member. Her mother made it clear to me that she is going where the respondent goes.

[245] This factor does not favour relocation.

Impact of Relocation on Fateh – s. 16.92(b)

[246] I need not repeat my comments about the VOCR. Fateh wants to stay. He wants to see his Dad regularly and spend more time with him. He likes his school and his friends in Belle River.

[247] Moving Fateh will disrupt his social and academic stability. He will be entering his third year at his school with a strong group of friends and teachers who describe him as a kind student who is eager to learn with a positive attitude.

[248] Simply put, I accept from the VOCR that Fateh’s preferences are to stay in Belle River, close to his father and friends.

[249] This factor does not favour relocation.

Time spent and involvement of each party with Fateh – s. 16.92(c)

[250] As earlier referenced, each parent is invested, involved, and committed to Fateh. Each acknowledges the importance of the continued and ongoing role of the other in Fateh’s life.

[251] I am mindful that Fateh spends more time with the respondent. However, what is equally clear from the VOCR is that he cherishes his time with his father and wants to increase this time.

[252] Jasdeep is very much involved in Fateh’s schooling, extra-curricular activities, and his well-being. Jasdeep has altered his work schedule to make his enhanced summer and holiday access viable.

[253] Although Amandeep would be physically closer to some members of her family, she has her mother with her in Belle River and her father and brother remain unconditionally supportive and committed to her and Fateh’s well-being.

[254] Although perhaps financially advantageous to Amandeep, I am not convinced that future opportunities would not arise for her to obtain and maintain gainful employment in Windsor.

[255] It is a bridge too far on the evidence before me to simply suggest that Jasdeep give up his company and his thriving job, his flexibility, and his income to move to Surrey and try to rebuild.

[256] This factor is at best neutral and perhaps slightly tips against relocation.

The reasonableness of the proposal – s. 16.92(f)

[257] Moving to Surrey would make it very difficult on Jasdeep to exercise parenting time, personal contact, or meaningfully participate in decision making responsibility.

[258] The respondent and her family are willing to pay all of Jasdeep’s expenses. This offer stands in contrast with the fact that none of them speak with him currently nor appear very fond of him. Ontario to B.C. is a long trip; Half-way across the country.

[259] Travel is not what it used to be. It is timely, expensive, and often delayed. This is not a move within a province or within driving distance. The goal of financial independence by Amandeep almost seems counterintuitive to the plan to work for her brother, live with her parents rent free, and receive subsidies for all other expenses beyond her income sources.

[260] As earlier indicated, parental and family subsidies will not disappear if she stays in Belle River. She may well be able to do some of her brother’s work remotely while maintaining her other jobs.

[261] Her proposal is unreasonable in her ill-measured expectations of how little it will adversely and deeply impact Jasdeep’s and Fateh’s time together.

[262] This factor does not favour relocation.

Compliance with existing obligations – s. 16.92(g)

[263] The evidence was clear that each party currently complies with the existing court orders regarding parenting time and financial obligations.

[264] However, this factor permits me to consider the respondent’s earlier self-acknowledged “mistake”. Her “self-help” remedy of going to BC under false pretenses, of unilaterally terminating communication between the applicant and Fateh until she could get an ex parte order and about moving very slowly to return Fateh when ordered to do so.

[265] This is nether the spirit nor the intent of family law legislation. Amandeep now admits that she has learned her lesson and would abide by any future orders. Given the role of her family in financing her 2021 actions and then indicating no knowledge of her actions, I have concerns that history may indeed repeat itself.

[266] This factor does not favour relocation.

Discussion

[267] Having reviewed the statutory list of factors I must consider, I pause to note that these cases are always difficult to decide. It is patently obvious to me that Fateh’s relationship with Jasdeep will suffer if I permit the relocation. The decline in the quality of this relationship will not be in Fateh’s best interest.

[268] I am mindful of the emotional and financial benefits that may flow to Amandeep from moving back to live with and work for her family. I also accept that as the primary caregiver, I must give serious consideration to Amandeep’s views and preferences, including her wish to achieve more financial security and independence.

[269] I cannot ignore her last trip to Surrey in assessing her motive to relocate. I am not satisfied that her proposed move is child-centered, being that it is in Fateh’s best interests. Although I accept that Amandeep’s isolation from some of her family may adversely impact her, I am not prepared to find that it has a similar or equal impact on Fateh.

[270] I take into account the modern exigencies of Facetime and Zoom, and how these tools make it easier to facilitate contact with the non-relocating parent. Yet virtual contact is not personal contact.

[271] Amandeep’s unhappiness in Belle River has not translated into bad parenting or adversely impacted Fateh. To her credit she has adhered to court orders and very much wants what is best for Fateh. Her family support will continue for as long as she remains in Belle River.

[272] I am not satisfied that the description of her current lifestyle equates with what counsel described as “making ends meat”. Her expenses on clothing, activities, and food are more than generous and her mother’s constant presence, coupled with Fateh’s schooling and activities, suggest that her “struggles” in Belle River may not be as intolerable as described.

[273] I am not satisfied that the arguments for relocation are convincing. This is in consideration of: having found that no family violence or alcohol abuse on the part of Jasdeep; rejecting much of Amandeep’s evidence regarding the August 2021 incident and the purchase of the MH; and placing little weight on alleged earlier exchanges over Family Wizard or at birthday parties.

[274] I am not convinced Fateh’s future will be better, brighter, or happier in Surrey. I am not convinced that employment opportunities will not arise in the Windsor area.

[275] The child’s wishes are clear. I decline the respondent’s invitation to place no weight on these views. They are a relevant consideration.

[276] In the end, I find that the applicant has discharged his burden and satisfied me that proposed relocation by the respondent to Surrey would not be in Fateh’s best interest. Permitting this to happen would not better meet Fateh’s physical, emotional and psychological safety, security, and well-being.

Decision Making Responsibility

[277] The order of Bondy J. at para. 6 and 7 provides for the applicant to have decision making responsibility for the child for significant and/or long-term decisions, with day-to-day decision making to rest with the parent with whom Fateh is residing with at the time.

[278] The respondent seeks to vary this to either her having decision making responsibility or in the alternative, joint decision-making responsibility.

[279] Section 16.3 of the Divorce Act permits me wide latitude in crafting an appropriate decision-making responsibility order. However, I must be mindful that there is no presumption in favour of joint decision making which should only be considered where evidence satisfies me that the parties are able to effectively communicate for the best interests of the child. Communication need not be pristine, but it nonetheless must be workable.

[280] The parties did not, do not, and cannot communicate effectively. Notwithstanding that they both love Fateh, their mistrust for one another and for their in-laws is palpable. A simple acknowledgement by each party that the other is a fit and loving parent is not enough. The need for effective communication as Fateh ages and matures will increase.

[281] The evidence I have accepted does not significantly impact the status quo on decision making. I have read the language proposed by the applicant in para’s 5-7 of his draft order. Given my decision not to permit Fateh to relocate, these proposed clauses expand Amandeep’s role in decision making while maintaining Jasdeep’s primary role in long term or substantial decision making. I accept and adopt these terms as being in the best interests of Fateh and recognizing the impediments to effective communication between the parties.

Shared Parenting Time

[282] The applicant wants equal parenting time on a week-about basis and to continue the holiday schedule as outlined in the Howard J. order. The respondent, now unable to relocate, asks me to maintain the existing status quo and the order of Bondy J. which keeps the majority of the parenting time with her.

[283] Once again, the best interests of Fateh remain the only and dominant consideration. I am mindful of the need for maximum contact by each parent.

[284] I return to the factors I must consider in determining what is in Fateh’s best interests.

[285] I agree with the applicant that both parties equally demonstrate love and affection, and both offer a warm and welcoming home with doting family and friends in support. Both enjoy an excellent relationship with Fateh. Both offer solid plans to meet his physical needs.

[286] More specifically, I find that Fateh has lived his whole life with the respondent. The evidence before me does not sway me to vary the existing order. Although displeased with her actions in August 2021 in Surrey, the evidence before me is that she has complied with court orders since her return and went as far to call those earlier actions a mistake.

[287] I focussed on the need for stability and consistency in Fateh’s life in denying the respondent’s request to relocate. Those same needs also support maintaining the current parenting time order. I accept her evidence that she now appreciates the importance of Jasdeep in Fateh’s life and wants them to have a strong relationship.

[288] I have already found that Fateh is functioning well-indeed thriving in the current situation. I pause to note that the conflict between the parties appeared to elevate as the trial approached. Yet Jasdeep fairly continued to characterize Amandeep as a caring and good mother.

[289] Fateh is almost nine. He needs both parents in his life. He needs a stable and predictable environment. He thrives in the existing environment. I will not fix what is not broken.

[290] I decline the applicant’s request for equal parenting time and conclude that the existing arrangement as set out in para. 4 of the Bondy J. order and supplemented by para. 1 of the Howard J. order shall remain.

Conclusion

[291] For the above reasons, I make an order to go in accordance with the attached Amended Applicant’s Endorsement Request, further amended and signed by me.

[292] I am mindful that this trial dealt solely with the issues of mobility, decision-making, and parenting time. Property and other issues remain outstanding.

[293] Given the length, expense, and outcome of this proceeding, I urge the parties to consider alternatives to formal litigation to resolve these outstanding issues that are primarily money driven matters.

Costs

[294] If the parties cannot agree on costs, which I strongly urge them to do, I will receive written submissions, not to exceed three pages (exclusive of Bills of Costs and Offers to Settle) from the applicant within 21 days and from the respondent within 21 days thereafter.

[295] If cost submissions are not received within the prescribed timelines, the issue of costs shall be deemed settled.

“Justice M.A. Garson”

Justice M.A. Garson

Date: July 12, 2023