



COURT OF APPEAL FOR ONTARIO

CITATION: Chitsabesan v. Yuhendran, 2016 ONCA 103

DATE: 20160205

DOCKET: M45936 & M45942 (C59537)

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Janani Nicola Chitsabesan

Applicant (Responding Party/

Moving Party by way of cross-motion)

and

Ajanthan Yuhendran

Respondent (Moving Party/

Responding Party by way of cross-motion)

Steven M. Bookman, Gillian H. Bookman and Jasmine
    Jadubir, for the moving party/responding party by way of cross-motion

Michael G. Weissenborn, for the responding party/moving
    party by way of cross-motion

Heard: January 7, 2016

By the Court:

[1]

The appellant husbands motion for interim access and the respondent
    wifes cross-motion to dismiss his motion were heard with the appeal. The
    appeal was taken under reserve and the appellants motion was allowed for
    reasons to follow to be released together with the reasons on the appeal.

[2]

Under appeal was the decision of the Superior Court of Justice upholding
    the November 13, 2013 decision of the Ontario Court of Justice awarding custody
    of the child born June 14, 2012 to the respondent and allowing her to relocate
    to England with the child. The Superior Court of Justice returned the access
    issues to the Ontario Court of Justice to correct any errors or
    inconsistencies in its wording and to adjudicate on any particular matters that
    were not dealt with as completely as the judge desires in her reasons for
    decision or in the order itself. The Ontario Court of Justice then issued a
    decision dated May 6, 2015 that restricted the appellants access to the child
    to six weeks a year in one-week blocks except for the summer when he is to have
    one week at the end of July and two weeks at the end of August.

[3]

In this motion, the appellant moved for access to the three-year-old
    child from January 12, 2016 to February 4, 2016. The appellant wishes to bring
    his daughter to Toronto so she can continue to develop a close and lasting
    relationship with his mother (her paternal grandmother) and other paternal
    relatives. He noted the significant cost of purchasing three return air tickets
    to exercise each one-week access period under the trial judges May 6, 2015
    order. Three tickets are necessary since the child is too young to travel alone
    and he must fly to London, return with the child, fly back to London with the
    child and then return to Toronto alone. In addition, he points out that exercising
    access in England is difficult because of the cost of accommodation in London.

[4]

The respondent opposed the requested
    access because it would interfere with the three-year-old childs nursery
    school attendance from 8:45 a.m. to 11:45 a.m. Monday to Friday. She relied on
    the schools policy, which, understandably, stresses the importance of
    attending school regularly. She pointed out that under the policy the teacher
    is not able to authorize a leave of absence for the purpose of a family
    holiday. It is not clear to us that the school would consider absence due to
    access by a non-custodial parent to be a family holiday. We note the policy
    allows the teacher to authorize an absence in exceptional circumstances when
    requested in writing, a provision the respondent did not draw to our attention.

[5]

No matter what may be the schools
    policy regarding an absence for parental access, in our view it is not in the
    best interests of the three-year-old child to consider attendance at this
    half-day program more important than fostering a meaningful relationship with the
    childs father and his family. It is always in the best interests of the child
    to have a healthy relationship with both parents. Where the parents live so far
    apart that access with the non-custodial parent cannot take place regularly,
    compelling reason should be shown why longer periods of access are not
    appropriate.

[6]

We note that on December 22, 2014,
    Pardu J.A. ordered interim access for a block of five weeks from December 28,
    2014 to February 2, 2015. The respondent, in her affidavit opposing the motion,
    does not indicate any difficulties or inconvenience associated with that
    interim access.

[7]

The respondent also submitted that
    granting the requested access would conflict with the trial judges May 6, 2015
    order. As explained in the reasons for our decision on the appeal, that order
    was made without jurisdiction and is a nullity. The order governing access is
    the trial judges order
November 13, 2013. That order does not restrict
    access to one-week blocks.

[8]

The appellants motion is allowed and
    the respondents motion is dismissed.

Released: February 5, 2016
    (RGJ)

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


