COURT FILE NO.: FS-21-00100899-0000 DATE: 2024 05 23
ONTARIO SUPERIOR COURT OF JUSTICE
B ET W EE N:
MANJINDER DHILLON Sandeep Athwal, for the Applicant Applicant
- and -
NAVJEET MUNDI Vincenzo Ruso, for the Respondent Respondent
HEARD: May 17th, 2024
REASONS FOR JUDGMENT
LEMAY J.
1The parties were married on April 19th, 2018 and separated on July 13th, 2020. There are two children of the marriage. Gavin was born on July 30th, 2019 and Jayden was born on January 13th, 2021.
2This is a motion brought by the Applicant, Manjinder Dhillon to expand the parenting time that he currently has with the children. That parenting time was ordered by Van Melle J. on December 3rd, 2021. The Respondent, Navjeet Mundi, is opposed to any expansion of parenting time as she asserts that there has been no material change in circumstances since Van Melle J. made her order. In the alternative, the Respondent is opposed to any expansion of parenting time based on the Applicant’s alleged substance abuse issues.
3I have determined that there should be an expansion of the parenting time that the Applicant has, and that this time should fit both his work schedule and the children’s school schedule. I have also determined that this parenting time order should apply until the next Case Conference. At that point, the parties are free to bring further interim proceedings to change the parenting time order.
Background
a) The Parties and the Relationship
4The parties dated for approximately a year before they got married on April 19th, 2018. They separated on July 13th, 2020, although there have been attempts to reconcile since that time.
5The Applicant was self-employed until earlier this year, when he applied for and was accepted into a position as a bus driver with Mississauga Transit. As a result, the Applicant’s hours of work are going to change significantly, and may change from week to week. The materials before me did not make it clear as to where the Respondent worked or whether she was currently actively at work.
6There are two children of the marriage. Gavin, who was born on July 30th, 2019 and Jayden, who was born on January 13th, 2021. Jayden is currently being potty trained.
7As of November, 2021, Gavin was having motion sickness while travelling in the car. I have not had any updated medical evidence of this, but I do note that the Respondent’s Affidavit states that Gavin can now communicate when he is feeling sick so that the car can be stopped.
8At the time of separation, an allegation of domestic violence was made by the Respondent against the Applicant. I understand that these charges have been resolved on the basis of a peace bond and of the Applicant taking an anger management course.
9Since the separation, the parties have attempted to reconcile on a couple of occasions. They moved back in together in March of 2021 but that did not work out. The Respondent alleges it was because of the Applicant’s temper. Then, the parties attended at marriage counselling in 2022, but that did not work out. Finally, the parties attempted to reconcile in June of 2023. However, that did not work out either and the parties have made no further attempts to reconcile.
10I note that the Applicant stated that there was an attempt to reconcile in January or February of 2023. The Respondent denies this claim and says that the change in living arrangements was only because there were out-of-town guests staying with his parents and the Applicant had his parenting time at the matrimonial home.
11It is not necessary for me to resolve this final issue. However, I do want to highlight the fact that there are disagreements between the parties on what has happened in this case. It is difficult for me to resolve these disagreements on the basis of a written record. Although I have made some findings of fact as I have considered the issues, nothing in these reasons should be taken as binding the trial judge.
12The parties had litigated some issues prior to their efforts to reconcile. Once the reconciliation efforts ceased, litigation resumed. I will now lay out the litigation history in this case.
b) The Litigation History
13The parties first had an urgent Early Case Conference (“ECC”) before McGee J. on October 25th, 2021. This case conference was scheduled by the Applicant in order to obtain parenting time with the children. In her endorsement from that ECC, McGee J. noted that neither parent had attended the Mandatory Information Program (“MIP”). McGee J. went on to say:
The parents need a plan to move forward and transition the boys into a healthy two parent family in which the boys have a life with both their mother and father. The first step is for the father to parent independently.
14The Applicant then brought a motion before Van Melle J. on December 3rd, 2021. At the conclusion of argument, Her Honour wrote a brief endorsement. The operative part of it reads as follows:
I have reviewed the affidavits of the parties and heard submissions from counsel. The respondent is agreeable to the applicant having parenting time "around" her home on Tuesdays and Thursday from 9:30 a.m. to 12:30 p.m. for 2 months. She would then be agreeable to the respondent having parenting time every Sunday from 10:00 a.m. to 12:30 p.m. at his parent's home.
I do not understand the respondent's proposal as the move from two days to one day a week appears to reduce his access. In any event, I find that the applicant should have parenting time, starting now, two days per week from 9:30 to 12:30 p.m. If the parties cannot agree on the days that the respondent is to have the children, it should be Sunday and Thursday in each week. The respondent is to deliver the children to the applicant and pick them up at the end of the access period. (Her counsel said that she was prepared to do this.)
The applicant is not to consume non-prescription drugs or alcohol 12 hours before his parenting time. He is not to consume non-prescription drugs or alcohol during his parenting time with the children.
The applicant and the respondent are to ensure that all COVID protocols are followed by everyone in contact with the children.
15As described above, the parties then made some efforts to reconcile. Those efforts were unsuccessful and, in the fall of 2023, the Applicant tried to move forward with this motion. There is some dispute between the parties as to whether there was a delay in having this motion heard and, if so, who was responsible for that delay. It is not necessary for me to resolve that issue.
c) The Parenting Schedule
16The parenting schedule was as originally set out by Van Melle J. It is parenting time for three hours on Sundays and three hours on Thursdays. However, there have been three changes to the schedule since Van Melle J.’s Order was made, as follows:
a) The Respondent has parenting time on Tuesdays as well as Thursdays.
b) The parenting time was all supposed to be at the Applicant’s parents home. Thursday’s parenting time has been changed so that it takes place at the Respondent’s parents home, and the Respondent is present for the parenting time.
c) The parenting time on Thursdays was to be in the morning. It has been changed to the afternoon. Both the Tuesday and Thursday parenting time have been reduced to two hours, from 4:15 p.m. to 6:15 p.m.
17I have limited information as to how the first change came about. The Respondent asserts that the second and third changes were both agreed upon as a result of the fact that the children have started in school. Gavin is in Junior Kindergarten and Jayden is in preschool. They are both attending school in the mornings. The Applicant asserts that these changes were forced on him by the Respondent.
18As mentioned above, weekday parenting time has been taking place at the Respondent’s parents’ house. This led to an altercation on October 19th, 2023. The Applicant says that the Respondent kept coming into the living room to interfere with his parenting time. He then took out his phone and began to record her, and she called the police.
19The Respondent disputes this version of events, and says that instead the Applicant arrived early for his access, was visibly angry and that the Applicant started yelling at her in front of the children. The Respondent’s affidavit states that “I was physically shaking and I know how quickly he can ‘snap’. I called the police.”
20I do not know what happened between the parties. It is clear, however, that the police did come to the Respondent’s parents’ home while the Applicant was having parenting time with the children. This would have been a traumatic event for the children.
21Since that event, I understand that the schedule has continued. I am also given to understand that the Applicant received a small additional amount of parenting time over the Christmas holidays. The Respondent alleges that, when the children were returned from this parenting time, Jayden’s diaper had not been changed all day.
Positions of the Parties
22The Applicant argues that the Respondent is attempting to unilaterally control his parenting time with the children. He also argues that he is a good parent and that there is no evidence of a substance abuse problem. As a result, he seeks the continuation of the three visits, but asks that the weekend visit be an overnight visit and that the others be longer.
23The Respondent argues that there has been no material change since the order of Van Melle J. was made back in December of 2021. Therefore, I should decline to make any changes to that order at all. In the alternative, the Respondent argues that I should proceed with caution as the Applicant has issues with both alcohol and marijuana. There is no evidence before the Court that would assist us in interpreting the results of various drug tests. As a result, I should leave the parenting time schedule alone even if I have the jurisdiction to change it.
Issues
24Based on the foregoing, I have two issues to determine in this case:
a) Do I have jurisdiction to vary the Order of Van Melle J?
b) If so, what variations (if any) should be made to the Respondent’s parenting time?
25I will deal with each issue in turn.
Issue #1 - Is There a Material Change in Circumstances?
26Counsel for the Respondent argued that there was no material change in circumstances and that the welfare of the child would not be in danger if I did not change the Order. This argument was based on the decision in Brown v. Parsons, 2024 ONSC 443, [2024] O.J. No. 224.
27I start by observing that I am not sure that Van Melle J’s order was actually intended to be anything other than an interim interim order. The first paragraph of the operative part of her reasons speaks to the fact that there is a two week period and then a change in the parenting time will follow. It is also difficult to see Van Melle J.’s decision as anything other than an interim interim order when the passage from McGee J.’s decision (at para. to come) is considered.
28Assuming without deciding that the Order of Van Melle J. was intended to be an interim order rather than something more temporary, I now consider the case-law provided by the Respondent. The decision in Brown sets out a detailed passage from Chyher v. Al Jaboury 2021 ONSC 4358. The passage from Chyher (at para. 22) reads as follows:
22The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:
26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well-founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.
29Interim orders, especially in respect of parenting, should not be varied lightly. To permit otherwise would allow the parties to come back to Court and relitigate the same issues over and over again. There needs to be some sort of compelling circumstance that justifies a change.
30In my view, there are several compelling circumstances that require the Court to revisit Van Melle J.’s order as follows:
a) The children are now school-aged. The Respondent made changes to the parenting Orders to reflect this fact by changing the time of the parenting time as well as the location of the parenting time. The Respondent has argued that the Applicant consented to these changes. It appears to me more that he has acquiesced in these changes. Either way, however, as I pointed out to counsel for the Applicant in the course of argument, the change to the Order was necessary because the children are now school aged and their circumstances have changed.
b) The incident on October 19th, 2023 means that, if the Respondent is present during the Applicant’s parenting time, there is a risk that the children will be exposed to the adult conflict. As I will detail more fully below, this is not in the children’s best interests.
c) The Applicant’s employment has changed. He is now working as a bus driver for the City of Mississauga. As a result, his employment schedule is variable. It is likely that, at some point in the next few weeks or months, the Applicant is going to have to miss the parenting time visits. The children should have the opportunity to see their father outside of his work schedule.
31It is for these reasons that I determined during the hearing that it was not necessary to hear from the Applicant’s counsel on these arguments. There are a number of material changes in circumstances that require me to revisit this Order. The fact that a change in the child’s school schedule and the parent’s work schedule means that the parenting schedule is now not workable would appear to me to be a compelling reason to vary the existing order to meet the best interests of the child.
32In that respect, I reject the assertion implicit in the Respondent Counsel’s argument that a change in the children’s schedule permits some modification of Van Melle J.’s order without actually triggering a material change in circumstances. The order is the order, and if it is now unworkable because there are changed circumstances, the question then becomes what parenting order should take its place. I now turn to that question.
Issue #2 - What Parenting Order Should Be Made?
33The amendments to section 16 of the Divorce Act have changed what the Court must consider when deciding what the appropriate parenting order is. The amendments to section 16 of the Divorce Act require the court to focus exclusively on the best interests of the children. The analysis of what is in the children’s best interests is a holistic one. It requires me to consider the circumstances of the children, then consider what is in their best interests and then use my findings to craft a parenting order that takes those factors into account.
34The children are still quite young. At this point, I do not know a whole lot more about their circumstances except that they are generally healthy and that no special needs have yet been identified. Gavin has had a medical issue in terms of car sickness. According to the Respondent, Jayden has a sensitivity to dairy, but I have not been given any medical evidence of that.
35Given the children’s ages, they need stability and predictability. They also need a calm home environment. To the extent possible, the children should not be exposed to incidents such as the one that took place on October 19th, 2023. I am not sure precisely what happened on that day. However, I can conclude that the children were exposed to the adult conflict and that this exposure is not in their best interests.
36More generally, the Respondent has brought allegations of domestic violence against the Applicant. She has also alleged that the Respondent has a temper that he has difficulty controlling. The Applicant has responded by observing that this conduct was “very much a two-way street, as she punched me in the face the week of our wedding.” It is difficult to know what is true at this point. However, it is clear to me that the children’s best interests are served by having independent parenting time with each parent.
37Then, there is the Applicant’s assertion that the Respondent is attempting to control his parenting time with the children. As McGee J. noted, it is in the best interests of the children for them to develop independent relationships with both of their parents. If the parents can spend time together cooperatively, that is well and good, but it is not sufficient. The parents live separately and lead separate lives. It is in the children’s best interest to have independent relationships with their parents.
38This brings me to the next issue that I must address, which is the Respondent’s claims in respect of the Applicant’s alcohol and marijuana consumption. In this respect, I had the following evidence:
a) Some photos of the Applicant, including one of him holding an open beer while driving a vehicle.
b) Excerpts from an investigator’s report dated November 2nd, 2023.
39I start with the photographs. The Applicant alleges that these were dated photographs and were previously used in the motion before Van Melle J. Applicant’s counsel also acknowledges, however, that the conduct exhibited in these photographs was inappropriate and should not have happened. I accept that submission.
40The evidence from the private investigator is more current. It is surveillance from November 1st, 2023. It shows the Applicant going to the beer store and purchasing 24 cans of beer.
41However, the Respondent says that the investigator says that the Applicant was smoking a cannabis joint and not a cigarette. I have three problems with this submission. First, I have no idea who the investigator is. Portions of the report he (his gender is identified in the Respondent’s Affidavit) has provided are redacted. It is difficult to accept evidence from someone that you do not even know the identity of. Second, the evidence is hearsay as the investigator did not swear an Affidavit or otherwise tender viva voce evidence on this point and it does not appear in his report. Third, the basis for the investigator’s conclusion that it was a cannabis joint and not a cigarette is not spelled out in his report, and the picture that I was provided with gives me no basis to make this finding either.
42In the end, I have concerns that the Applicant may have a substance abuse problem. It is clear that he uses both alcohol and marijuana. However, I am of the view that the same type of order that was made by Van Melle J. can be continued. It is justified on the facts. In addition, counsel for the Applicant acknowledged that these concerns can also be addressed by having the Applicant tested for drugs from time to time.
43The concerns can also be addressed by having the Respondent do more of the transporting of the children than the Applicant. The best way to fashion that order is to have the Applicant do more of the driving at the end of access visits.
44Finally, there are the issues in respect of the schedules of both the children and the Applicant. The children are now in school, and attending school should be their primary focus. As a result, the schedule must reflect the realities on the ground.
45The schedule must also reflect the ages of the children and the fact that, to date, they have had no more than three hours in a row with the Applicant. As a result, the literature provided by the Respondent suggests that there should be a graduated schedule put in place to work up towards overnight visits.
46To that end, I am of the view that the appropriate parenting time order in this case is as follows:
a) The Applicant shall have parenting time from after school (3:30 p.m.) to 7:00 p.m. two days per week. This change is to start immediately. The Applicant is to provide his work schedule to the Respondent immediately upon receipt, and the dates for access are not to be consecutive.
b) The Applicant is to pick the children up for the start of all parenting time visits and the Respondent is to pick the children up at the conclusion of all parenting time visits. All parenting time visits will take place at the Applicant’s parents’ home, which is where I understand he lives.
c) Commencing on the weekend of May 31st - June 2nd, 2024, the Applicant is to have parenting time on either Saturday or Sunday, whichever day he is not working. That parenting time is to be for four hours for the first two weekends. It is then to be increased to six hours for the next two weekends and eight hours for the third two weekends.
d) If there are no issues with the eight-hour access visits, then the Applicant shall have an overnight visit on Friday, Saturday or Sunday of each weekend depending on which day he is not scheduled to work. The hours of the overnight visit are from 3:00 p.m. to 10:00 a.m. the following day.
e) Communications between the parties are to be either through counsel or through some sort of third-party communications tool such as My Family Wizard. Communications are to be in writing so that the Court can scrutinize the parties’ conduct if there is a dispute after the fact.
f) The Applicant is not to consume any drugs (including marijuana) or alcohol less than twelve (12) hours prior to his parenting time with the children.
g) Within two weeks of today’s date, the Applicant is to produce drug and alcohol testing from an agreed-upon facility. If the parties cannot agree on this point, I may be spoken to.
h) The Applicant is also to establish a regime of regular drug and alcohol testing to ensure compliance with paragraph (f).
i) Nothing in these Orders affects the status quo, which is that the parties continue to share joint decision-making authority for the children.
47I remain seized to deal with the implementation of this gradual schedule to the earlier of three (3) months from today’s date or the next case conference. As this is a graduated Order, it can be revisited after it is implemented. In the event that the parties require a further hearing before me, they can contact me through the Trial Office. Given the impending arrival of summer, I will be available but some of the hearings may be by audioconference.
Conclusion and Costs
48For the foregoing reasons, I am ordering as follows:
a) The Applicant shall have parenting time from after school (3:30 p.m.) to 7:00 p.m. two days per week. This change is to start immediately. The Applicant is to provide his work schedule to the Respondent immediately upon receipt, and the dates for access are not to be consecutive.
b) The Applicant is to pick the children up for the start of all parenting time visits and the Respondent is to pick the children up at the conclusion of all parenting time visits. All parenting time visits will take place at the Applicant’s parents’ home, which is where I understand he lives.
c) Commencing on the weekend of May 31st - June 2nd, 2024, the Applicant is to have parenting time on either Saturday or Sunday, whichever day he is not working. That parenting time is to be for four hours for the first two weekends. It is then to be increased to six hours for the next two weekends and eight hours for the third two weekends.
d) If there are no issues with the eight-hour access visits, then the Applicant shall have an overnight visit on Friday, Saturday or Sunday of each weekend depending on which day he is not scheduled to work. The hours of the overnight visit are from 3:00 p.m. to 10:00 a.m. the following day.
e) Communications between the parties are to be either through counsel or through some sort of third-party communications tool such as My Family Wizard. Communications are to be in writing so that the Court can scrutinize the parties’ conduct if there is a dispute after the fact.
f) The Applicant is not to consume any drugs (including marijuana) or alcohol less than twelve (12) hours prior to his parenting time with the children.
49I would also note that this order may be varied after a case conference or settlement conference, either on agreement or by way of a motion. I will now explain why I am prepared to order that flexibility in this case. First, as far as I understand this case, the parties still own the matrimonial home but neither of them are living in it. Instead, they are both living with their parents. As a result, the sale of the matrimonial home (when it takes place) may very well change the parties’ living arrangements, which may change the children’s schooling and other factors.
50Second, the children’s schedule is going to change over the next couple of years. As an example, Gavin will start Grade one in approximately fifteen months. That will require a further change to the parenting time schedule that I have imposed.
51I would note that it does not appear that the Respondent has attended at the Mandatory Information Program session. Although I do not intend to make a further Order on the subject, I would strongly suggest that she do so in the near future, so as to comply with McGee J.’s order.
52Finally, there is the subject of costs. The parties are encouraged to agree on costs. Failing agreement, the Applicant is to provide his costs submissions within fourteen (14) calendar days of today’s date. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, caselaw and offers to settle.
53The Respondent shall have a further fourteen (14) calendar days in which to provide her costs submisisons. Again, those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, caselaw and offers to settle.
54The parties are required to serve, file and upload those costs submissions in the usual course. They are also required to provide an electronic copy of those submissions to my judicial assistant, who can be reached at susan.pickles@ontario.ca.
55There are to be no extensions to the time limits for costs submissions, even on consent, without my leave. In the event that the parties do not serve and file their costs submissions in accordance with this timetable, then there shall be no order as to costs.
LEMAY J. Released: May 23, 2024
COURT FILE NO.: FS-21-00100899-0000 DATE: 2024 05 23
ONTARIO SUPERIOR COURT OF JUSTICE
B ET W EE N:
MANJINDER DHILLON Applicant
- and -
NAVJEET MUNDI Respondent
REASONS FOR JUDGMENT
LEMAY J. Released: May 23, 2024