



COURT OF APPEAL FOR ONTARIO

CITATION: Pal v. Bhatia, 2022 ONCA 68

DATE: 20220125

DOCKET: C69436

Pardu, Roberts and Miller JJ.A.

BETWEEN

Arun Pal

Applicant
(Respondent)

and

Tanya Bhatia

Respondent
(Appellant)

Michael H. Tweyman, for the appellant

Arun Pal, acting in person

Heard: January 21, 2022 by
    video conference

On appeal
    from the order of Justice Jayne E. Hughes of the Superior Court of Justice
    dated April 6, 2021, with reasons reported at 2021 ONSC 2483.

REASONS FOR DECISION

[1]

This appeal concerns minor modifications made
    to a final order respecting parenting and child support issues. The parties
    separated in 2013 after less than five years of marriage. Their only child, A.,
    is now 11 years old. Since their separation, the parties have been embroiled in
    high conflict litigation.

[2]

A final court order was made on September 15,
    2015 (the September 15, 2015 order). The respondent initiated a motion to
    change the September 15, 2015 order in September 2017, raising compliance
    issues, particularly in relation to his parenting time with A. The proceedings were
    closely case managed by the motion judge who made a series of temporary orders
    to reduce the exposure of A. to parental conflict and assist the parties in
    coming to a resolution of their dispute. At the motion judges direction, the Office
    of the Childrens Lawyer prepared an updated report to account for A.s age and
    new stage of development.

[3]

With the consent of the parties, the motion judge
    ordered the matter to proceed by summary judgment before her, explaining the
    impetus for the order in her endorsement of September 29, 2020, as follows:

Both parties and counsel
    for the Respondent Mother, Reginald McLean, agree that this is not a matter
    that should proceed to trial.
The parties reached agreement on
    the principles of a parenting plan on a number of
occasions
with the assistance of the court and counsel but have been unable to finalize
    the specific terms of the Minutes of Settlement.
I agree with counsels assessment that it is essentially tweaking
    and tinkering but the parties have been unable to conclude a final agreement.
It is agreed that none of the tweaking and tinkering impacts the Applicant Fathers
    child support obligation, and the maximum principles had been reviewed and is
    understood by the parties.
To save
    further time and expense, and to avoid the damage to the co-parenting relationship
    of the parties a trial is likely to cause, the parties have agreed that the
    matter should be scheduled for a summary judgment motion.
[Emphasis added.]

[4]

Both parties sought minor amendments to the
    September 15, 2015 order. The motion judge made minor amendments to the respondents
    parenting time, to child support, and to the shared Christmas holiday schedule.
    Given the mixed success on the issues, the motion judge made no order as to
    costs.

[5]

The appellant raises the following issues on
    appeal:

i.

The motion
    judge erred in making any change to the September 15, 2015 order without addressing
    the threshold issue of material change in circumstances.

ii.

The
motion judge erred in deciding the matter after being the
    case management judge and hearing a settlement conference.

iii.

The motion judge erred in failing
    to give effect to the parties admissions regarding regular parenting time at
    the first appearance on the motion.

iv.

The motion judge erred in failing
    to give proper weight to the childs views and preferences.

[6]

We do not accept these submissions.

[7]

The first two issues have no merit and ignore
    the parties express consent to the procedure followed by the motion judge. There
    was no unfairness or prejudice. Rather, this was a sensible and practical way
    to proceed, given the motion judges long involvement in this matter and the
    minor nature of the amendments that both parties had requested.

[8]

As already indicated, the parties agreed that the
    motion judge should determine by way of summary judgment the very few issues
    that were outstanding in order to avoid the cost and delay of a trial and
    further damage to their co‑parenting relationship. We do not accept the
    appellants submission that she merely acquiesced or was dragged along.
    That is not what happened.

[9]

The
    appellant was represented at all times by counsel (not appeal counsel) who
    never made any objection to proceeding by way of summary judgment or before the
    motion judge. Nor did he raise any issue about a material change in
    circumstances or any other impediment to the motion judge determining the motion.
    On the contrary, he gave the appellants consent to proceed in this manner and
    then sought amendments to the September 15, 2015 order on her behalf.

[10]

With respect to the third and fourth issues, the motion
    judge made no error. There was no firm agreement between the parties on the
    respondents parenting time before the motion was determined and, in any event,
    the motion judge was not bound by the parties negotiations. She had to
    consider what was in A.s best interests, particularly in the context of
    high-conflict litigation where, as the motion judge noted, the parties had
    been struggling for many months to finalize the terms of a final order and had
    reached an impasse.

[11]

The motion judges decision on the merits is unassailable.
    She carefully reviewed the parties respective submissions on each of the
    issues presented for determination. Her reasons on each issue show a sensitive
    and practical approach grounded in the evidence, relevant legal principle, and
    pointedly, A.s best interests. Her decision was clearly designed to provide A.
    with the consistency that both parties agreed was important and to reduce his
    exposure to the conflict between his parents. We see no error in her
    conclusions.

[12]

The respondent has brought a motion to submit fresh
    evidence. It does not affect the outcome of this appeal. We do not admit it.

[13]

For these reasons, we dismiss the appeal.

[14]

The respondent does not seek any costs. We order no costs
    of the appeal.

G.
    Pardu J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


