IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Brar v. Saroay,
	2017 BCSC 2466

Date: 20171228

Docket: E052840

Registry: New Westminster

Between:

Harmanpreet Singh Brar

Claimant

And

Mandeep Kaur Saroay

Respondent

And

Power Dimensions Inc., Decision Streams Inc., SQL Dimensions Inc.,
AZ Capital Management Inc., Clear Decisions Technology Inc.,
Northern Pacific Holdings Inc., and Northern Pacific Holdings (Victoria) Inc.

Respondents by Counterclaim

Before: The Honourable Madam Justice Sharma

Oral Reasons for Judgment

(In Chambers)

Counsel for Claimant:	M. Ostrow
Counsel for Respondent:	D.H. Goodwin
Place and Date of Trial/Hearing:	Vancouver, B.C. December 28, 2017
Place and Date of Judgment:	Vancouver, B.C. December 28, 2017

[1] THE COURT:  These are my reasons. Before me is an application by the respondent seeking an order that would allow her to travel to India with her two children on an urgent basis for 14 days. The respondent says that her maternal uncle is in critical condition and she claims he may only have a couple of days left to live.

[2] The first notice that the claimant got of this request for travel was December 22, 2017, perhaps because of the urgency of the apparent illness coming on. The only evidence I have in front of me about the nature of her uncle's condition is a letter that was handed to me purporting to be from a hospital in India, and Ms. Saroay's affidavit evidence. That evidence indicates that her maternal uncle is in critical condition.

[3] She would like to go to India with her children and believes it may be the last time that she and her children will be able to visit with her uncle. Her position is that there is no good reason why permission should not be granted by Mr. Brar, and that the children have ties to the family in India, in particular her sick uncle. She also mentions in her material that the family has a history of going to India. Also, earlier this year that she took the children out of the country to Spain for one child’s soccer tournament.

[4] The situation with travel to India is very different now because the parents are separated. Therefore, the previous trips to India during the marriage do not really help me decide this issue. The travel to Spain was for a different reason and also occurred before the most recent difficulties between the parties concerning parenting occurred. So I do not find the trip to Spain to be helpful.

[5] The difficulty with the parenting is that, as far as I can tell, the father has not had any meaningful access to his children since separation. He has had time with the children but only while the mother was in that same restaurant.

[6] The mother says that is because she believes that the father's communication with the kids, or with her in front of the children, dissuades them from wanting to spend time with him. She also does not understand why he would not simply agree to a third party agency being involved, not only being at the transition, but in fact delivering the children.

[7] The only concern that guides me is the best interests of the children.

[8] I have to say that this is an extremely difficult case. On the one hand, there is the desire, quite reasonably, of the mother to visit a dying relative with her children. The importance of that is not just visiting the relative, should he pass away quickly, but also to be around extended family should he die, and partake and witness the ceremonies that are associated with that.

[9] On the other hand, the children, for whatever reason, have not spent extended periods of time with their father. If she is not given permission to go it sounds like maybe the mother would not go, not wanting to leave them with the father.

[10] However, this is a very high-conflict case, and in such cases it is very difficult, especially on an interim application, for the court to have confidence about what is going on, not because the court does not trust what is presented, but because in the early stages of a high-conflict separation emotions run high and perspective is lost by all parties involved.

[11] The father is concerned about a prolonged stay. He says India is not a signatory to the Hague Convention; therefore there is no way to enforce a return of the children should the mother not bring them back. He also points out that on previous trips, albeit during the marriage, there was an extended visitation in India, even though it conflicted with school time (on one occasion from late November until mid-January, on another from mid-February until April).

[12] As in many family cases, the affidavit material was not always the most helpful. It is full of a lot of emotion by the parties and a lot of irrelevant and, with respect, self-serving statements about parenting abilities. I do not blame counsel for that, but it does not help the court come to a decision in a difficult case.

[13] What is clear, however, is that the father has not had meaningful time with his children since separation. He has had some time, but the parties have been unable to even agree on the amount of the father’s parenting time. It is for another judge on another day perhaps to determine exactly why that is, but the fact remains he has had almost no time with his own children in almost a year.

[14] It is also clear that the elder child is in counselling and it appears that there are issues relating to stress. This is not surprising. The family has split up. The boy is 12. His father is not living with him any more. It probably does not matter how either parent behaves; that child is going to be under a great deal of stress. I do not think I can read anything into that. It is commendable that he is receiving counselling. I am disturbed that the counsellor will not talk to the father. Even if the father had communication that was perhaps ill-advised -- and I do not have evidence of that -- it may be unprofessional for the counsellor not to give him at least an update about what is going on. I am very concerned about that.

[15] I am also concerned by what I saw in the material that the mother made what is an apparently unsubstantiated report to the Ministry of Children and Family about the father. From the material, it apparently had to do with the father showing up at the children's school and allegedly making certain comments. The father is entitled to be at the children's school as far as I know. I do not see that incident as a reason for judicial or ministry interference. That the mother reported him is yet another indication of how not addressing and resolving these parenting issues is ultimately not good for anyone.

[16] It is also clear that occasionally the father has not responded in the best possible manner in his communication, and of course that is to be discouraged. However, in reading those types of communications, the bad reactions may have been out of frustration of not seeing his children.

[17] The parties are going to be in court again in early January to deal with some more parenting issues, including some of the orders I am adjourning today (seeking a more general order permitting the mother to travel with the children), and an issue to do with assets.

[18] As I said, this is a very difficult case. However, I am not granting permission for the mother to take the children to India at this time. This is a high-conflict case. There is going to be another court hearing very soon. While I do not disbelieve the mother's understanding of her uncle's condition, I am not satisfied that I have reliable information upon which to make a conclusion that delaying a trip by a week or two, if that were to be the case, will deprive the children of the benefit of being with their family and seeing their mother’s uncle. However, the best interests of the children in a high-conflict case is for them to remain in their jurisdiction.

[19] I appreciate that until there is a plan in place, it may not be best for the children to spend extensive time with their father immediately because of the lack of significant contact he has had with the children. However, the mother does have to make a choice on her own if she wants to go to India. I am not saying that the father would automatically get the children if she chose to do that, because I am not making that order. What I am saying is, taking into account all of the circumstances in front of me on this interim application, I am not satisfied it is in the children’s best interests to be further separated from their father by geography and delay in spending time with him. Given the evidence in front of me, I am not satisfied that the urgency is so great that that trip must take place immediately. Certainly I do not see why it would have to be 14 days in duration. Yes, it is better to go to India for two weeks, but if the purpose was simply to visit a dying relative, that need not interfere with their school and it could be done quicker.

[20] Given the very serious, very concerning unresolved parenting issues, I do not grant the order.

“Sharma J.”