Court File and Parties

Court File No.: FC-23-611 (Hamilton) Date: 2023/07/12 Superior Court of Justice-Ontario

Re: JAGJIT JIMMY SOHAL, Applicant -and- SAMANJIT BHATTAL, Respondent

Before: Gibson J.

Counsel: Audrey Schecter and Lindsay Karpetz, Counsel for the Applicant Kirsten Humphrey and Elliot Vine, Counsel for the Respondent

Heard: June 22, 2023

Endorsement

Overview

[1] These competing interim parenting motions arise in the context of a high-conflict litigation, with a background of allegations of family violence and conflicting affidavit evidence from the two parties.

[2] The parties married on September 23, 2016. On May 11, 2023, Samanjit Bhattal (“the Respondent Mother”) left the parties’ residence at the paternal grandparents’ home in Stoney Creek (a community within the City of Hamilton) with the parties’ child Amber Kaur Sohal, born October 22, 2021 (“Amber”), and moved to her parents’ home in Woodbridge, some 95 km away, without notice to or the consent of her husband Jagjit Jimmy Sohal (“the Applicant Father”) for Amber’s relocation. She alleges that she was obliged to flee because she was subjected to escalating abusive and controlling behaviour towards her by her husband.

[3] The Applicant Father insists that all allegations of abusive and controlling behaviour by him are false and fabricated as part of a plan by the Respondent Mother to relocate with the child to Woodbridge.

[4] A motion was heard on an urgent basis by Brown J. on May 24, 2023, who issued a temporary Order requiring the Applicant Father’s parenting time with Amber (two overnights and one non-overnight visit per week) to be supervised by one of his aunts.

[5] The parties attended an urgent Case Conference before Bale J. on May 31, 2023. The parties agreed on consent to engage Howard Hurwitz to conduct a s.30 assessment. Mr. Hurwitz intends to commence the assessment during the week of July 22, 2023. The Applicant Father will pay for the s.30 assessment.

[6] By his Notice of Motion dated May 15, 2023, the Applicant Father requests an Order that Amber reside with him; that the parties shall jointly make all parenting decisions for Amber; that the Respondent Mother shall have specified parenting time with Amber; and that the Respondent Mother be restrained from removing the child from the City of Hamilton except as may be agreed in writing and in advance by the parties.

[7] By her Notice of Motion dated May 18, 2023, (amended June 9, 2022) the Respondent Mother requests an Order that Amber shall reside primarily with her and have parenting time with the Applicant Father at specified times.

[8] On the hearing of the long motion, the Respondent Mother submits that the Applicant Father’s motion to return the child to his care in Hamilton and restraining the Respondent Mother from removing the child from Hamilton should be adjourned, except for the issue of interim parenting time, to a date to be determined after the s.30 assessment in this matter is complete. Her position on interim parenting is that the Applicant Father should have supervised parenting time for two non-consecutive overnights spread throughout the week. In the alternative, she asks the court to authorize her relocation without notice as a result of family violence.

Positions of the Parties

[9] The Applicant Father seeks to have Amber returned to live with him in Stoney Creek and to reside with him without any supervision. He proposes that the Respondent Mother should have in-person and virtual parenting time. He says that what he describes as the unilateral self-help of the Respondent Mother should not be condoned. He submits that her unilateral actions to alter the status quo and give her an advantage in the litigation should be discouraged, and that she is using allegations of abuse to defend her sudden departure, choosing to characterize her actions as “fleeing” instead of characterizing them as an attempt to relocate without complying with the statutory notice requirements in the Divorce Act.

[10] The Respondent Mother seeks to adjourn the Applicant Father’s motion until after the s.30 assessment has been completed. She also seeks ongoing supervised specified parenting time for the Applicant Father with a review after completion of the s.30 assessment. In the alternative, she seeks an Order authorizing her relocation to Woodbridge.

Issues

[11] The main issues on this motion are:

1. Should the Applicant Father’s motion be granted or dismissed, or should it be adjourned until after the completion of the s.30 assessment?
2. If so, what interim parenting schedule is in the best interests of the child pending the outcome of the s.30 assessment?
3. Is supervision of the Applicant Father’s parenting time required on a temporary basis?
4. What joint decision-making arrangements should be in place on an interim basis?

Analysis

[12] In this case, the court is faced with a situation in which there is a young child and serious allegations of family violence by the Applicant Father towards the Respondent Mother. There is conflicting affidavit evidence in this regard, with no definitive means in the near term to make credibility assessments.

[13] When presented with conflicting affidavit evidence, the court should be very cautious in preferring one party’s credibility on affidavit evidence to that of the other party on an interim motion.

[14] To determine what is in the best interests of the child in deciding whether to authorize a relocation of a child of the marriage, the court shall take into consideration both the factors referred to in s.16(3) of the Divorce Act, and the additional factors referred to in s.16.92(1).

[15] Interim mobility rights motions are inherently very difficult due to the fact that the court does not have a full record of evidence before it upon which to base the decision. As was the case in Hales v. Lightfoot, 2022 ONSC 3517, in the present case the many affidavits filed contain conflicting evidence, and no cross-examination has yet been held. As noted in Pret-Lescard v. Pret-Lescard, 2023 ONSC 1901, the relatively small scope of information and evidence available on an interim motion, and the very nature of temporary orders, means that such orders are meant to be “Band-Aids” for the parties: the purpose of an interim order is to provide a solution to a problem that is reasonably acceptable in the circumstances to get the parties through to trial where the issues will be canvassed more thoroughly based on a full evidentiary record.

[16] In such a situation, I must attempt to discern what interim arrangements would be in the best interest of the child Amber, which must govern, and which might best mitigate risk. I must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, having regard to the factors set out at s.16(3)(a)-(j) of the Divorce Act.

[17] Amber is only 19 months old. The Respondent Mother has been, and remains, Amber’s primary caregiver. The Applicant Father has little direct parenting experience and works long hours full time. There are no allegations that the Respondent Mother has been a deficient parent, or that there is any risk to Amber in her maternal grandparents’ home in Woodbridge. An Order changing the primary caregiver at this early stage would create significant instability for Amber.

[18] On the other hand, there are allegations of family violence by the Applicant Father. I have had regard to the provisions of s.16(4) of the Divorce Act.

[19] I have also had regard to the principle at s.16(6) that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[20] I assess that it would be in Amber’s best interests to adjourn the Applicant Father’s motion to return Amber to Hamilton until after the s.30 assessment is completed, and better and more reliable evidence is available. There would be significant risks to the child’s best interests in making an Order now, and limited risk to the child’s best interests to an adjournment.

[21] There is no evidence before me that there are any major child-related decisions which need to be made for Amber in the near term on a time-sensitive basis other than the interim parenting schedule which would require the court to make an Order for interim decision making.

[22] The current arrangements pursuant to the interim Order of Brown J. should be adjusted to reduce the excessive amount of time Amber is spending in transit between Stoney Creek and Woodbridge.

Order

[23] The Court Orders, on an interim basis, that:

1. The Applicant Father’s motion to return the child to Hamilton and restraining the Respondent Mother from removing the child from Hamilton, and for joint decision-making for the child, is adjourned until a date to be determined after the disclosure meeting for the s.30 assessment;
2. The child of the marriage, Amber Kaur Sohal, born October 22, 2021, shall reside primarily with the Respondent Mother;
3. The Applicant Father shall have parenting time with Amber as follows: a. On Sundays from noon until Mondays at noon; b. On Thursdays from 3:00 p.m. until Fridays at 3:00 p.m.; c. The Applicant Father’s parenting time shall be exercised in the presence of one of the paternal Aunts at all times; and, d. The Applicant’s parenting time, and the requirement that it be supervised, shall be reviewed after the s.30 assessment is complete.
4. The parties shall share transportation of the child equally.
5. The parties may each have a virtual video call with the child on the evenings they do not have care of the child.
6. Amber is not to be removed from the Province of Ontario pending further Order of the Court; and,
7. Costs are reserved to the motions judge on the return of the Applicant Father’s motion following completion of the s.30 assessment.

M. Gibson J. Date: July 12, 2023