Court of Appeal for Ontario
Date: 2025-03-13
Docket: COA-23-CV-0654
Panel: Janet Simmons, Steve Coroza, Lorne Sossin JJ.A.
Between:
Vikas (Vick) Kohli (Applicant/Respondent)
and
Sheri Thom (Respondent/Appellant)
Appearances:
Michael H. Tweyman, for the appellant
Mark DeGroot, for the respondent
Heard: October 11, 2024
On appeal from the order of Justice Andrew Pinto of the Superior Court of Justice, dated May 25, 2023.
Overview
[1] This appeal concerns parenting and support in the context of a high-conflict separation. The appellant, Sheri Thom, seeks to overturn an order, which, among other things, dismissed her request to relocate with her young son to New Brunswick and rejected her claim for spousal support from her former spouse, the respondent, Vikas “Vick” Kohli.
[2] The issues before this court are whether the trial judge erred in dismissing the request for relocation despite the finding of family violence against the appellant and whether the related rulings on mobility, parental decision-making and support payments can stand.
[3] The appellant also seeks to adduce fresh evidence on appeal about her current financial and living situation.
[4] The respondent initially filed a cross-appeal challenging the orders for insurance and other benefits and equalization payments to the appellant, but it was abandoned prior to the hearing of the appeal.
[5] For the reasons that follow, we would allow the appeal in part. In our view, the decision to impute income to the appellant after finding that she was the victim of family violence, without specifically considering whether that violence affected her earning ability, constitutes reversible error. We would not, however, disturb the factual findings on the relocation request and accordingly dismiss that ground of appeal.
Facts
(1) The Relationship and Separation
[6] The appellant and the respondent started cohabiting in December 2001 in California and married in 2003. Since neither party was a permanent resident in the United States, they eventually moved out of the country in 2007 to live in New Brunswick. After a year in New Brunswick, the parties moved to Toronto.
[7] The respondent was the primary income-earner in the relationship, working various jobs in the earlier years and eventually co-owning a consulting business, Trilateral Management Inc. (“Trilateral”), incorporated in 2007 and revived in 2017. In 2011, he had started another business, Aequitas International Inc., but parted ways with the co-owners in 2016 and was bought out in 2017.
[8] The appellant worked minimum wage jobs until 2011 when she left the workforce due to a bad back. In addition, she experienced symptoms of obsessive-compulsive disorder (“OCD”) and anxiety that made it challenging to find employment.
[9] Their son was born in April 2018. By then, the parties were experiencing a significant breakdown in the relationship. On September 11, 2019, the respondent received a letter from the appellant’s counsel stating the appellant’s intention to separate. They continued to live together for several days until the appellant told the respondent that her father was coming to help her and the child move to New Brunswick, where her family lived. The respondent interpreted this to mean the appellant would be taking the child imminently and moved out of the home with the child to a friend’s residence. He informed the police of his taking the child out of the matrimonial home in response to the appellant’s plans.
[10] The appellant claimed that the respondent kidnapped their son, who was still breastfeeding. She then contacted Peel Regional Police and made allegations of historical abuse. The respondent was charged with numerous offences, including assault and uttering threats, which were later withdrawn after the respondent entered into a peace bond. The child was returned to the appellant’s care and the parties have remained separated since.
(2) History of Conflict and Abuse
[11] Both parties gave evidence that their relationship was abusive and at times violent. The appellant claimed that the respondent not only abused her physically over the course of their marriage, but verbally and mentally as well. She detailed being threatened with death by the respondent and struck repeatedly while pregnant in attempts to harm the foetus. She described him as a master manipulator and testified that he constantly gaslit her and blamed her for his violent behaviour.
[12] The respondent denied the allegations of domestic violence, though he conceded that things at times became physical in the context of defending himself. He claimed it was the appellant who would not let him walk away when arguments got heated and that the appellant also became violent at times.
[13] The respondent gave evidence that the police were called on six occasions during the relationship: twice by himself and four times by the appellant. The respondent claimed he called the police either to diffuse the situation or to avoid false allegations of abuse. Children’s Aid Society (“CAS”) did two full investigations in 2019 and 2020 following police complaints.
[14] Both parties agreed that there had been no incidents of violence since the date of separation. The respondent claimed that the parties were getting along better, pointing to the fact that the parties took their son to Canada’s Wonderland together 11 times in the summer of 2022. The appellant claimed that the respondent’s behaviour was not genuine; any improvement in the parties’ relationship was the result of the respondent’s strategic efforts to improve his behaviour prior to and during trial.
[15] The allegations of family violence permeated the arguments made during trial and previous interim motions. The outcome of those interim proceedings are canvassed below for context leading up to the trial.
Procedural History
(1) Commencement of the Family Proceedings
[16] As mentioned, the appellant retained custody of the child after the parties’ separation. On October 4, 2019, the respondent filed an urgent motion for parenting time. The appellant responded with materials containing allegations of “abuse, violence, unfit parenting and overall distrust.” Given the nature of the allegations, the matter was adjourned by Diamond J. to allow the respondent to file reply materials. The matter was referred to the Office of the Children’s Lawyer (“OCL”). Diamond J. also ordered on consent that the respondent’s interim access be increased to four supervised access visits, amounting to twelve hours per week.
[17] The parties returned before Del Frate J. on October 31, 2019, after reply submissions were filed. The order of Diamond J. was continued and a direction for consent of both parties to major medical decisions added.
[18] On August 12, 2020, when the child was about 28 months old, the OCL provided a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “OCL Report”) detailing the history between the parties and the recommendations of the clinician following her investigation. The OCL Report recommended that the appellant retain full custody and that she be allowed to relocate to New Brunswick, subject to certain conditions pertaining to the child’s health and development, including enrolling the child in school.
(2) Motion for Increased Parenting Time
[19] On November 26, 2020, the respondent brought a motion for increased and unsupervised parenting time. His position was that it was not in the child’s best interest that his parenting time be supervised and limited to 12 hours a week, and that paying for supervision services was a “significant financial burden”. He sought a gradual extension of his parenting time to include overnights and ultimately a 2/2/3 parenting schedule.
[20] The appellant opposed the motion on the basis that the respondent had undiagnosed mental health conditions and anger management issues that made her fear for her and the child’s safety. She feared that the respondent would engage in a murder-suicide and/or harm the child to hurt her. In the appellant’s trial affidavit, she explained that this fear partially stemmed from the experience of her former lawyer who tragically lost his stepchild through an alleged murder-suicide by the child’s father.
[21] Nishikawa J. determined that it was not possible, nor necessary to make findings about the allegations of abuse to determine the issues before her, except to the extent the evidence impacted the respondent’s request for unsupervised parenting time.
[22] Finding that the appellant’s allegations of abuse “had some evidentiary basis”, Nishikawa J. considered whether the respondent’s past conduct had an impact on his parenting ability. She noted that there was “an absence of evidence to suggest that [the respondent] pose[d] any risk to [the child], whether to hurt [the appellant] or for any other reason”, and found that the appellant’s fear that the respondent would commit a murder-suicide was unsubstantiated. In her view, the respondent’s past anger issues did not create a risk of harm or result in the respondent being an unfit parent. Moreover, Nishikawa J. found it significant that the murder-suicide fear had not been raised by the appellant until the proceedings were commenced, despite repeated interactions with the police and the CAS in the past.
[23] For the above reasons, Nishikawa J. found that supervised parenting time was no longer required, and the best interests of the child warranted an extension of the parenting time beyond the allocated 12 hours a week. She ordered a transition period from third party supervision to supervision by the child’s paternal grandmother. She was not, however, prepared to immediately order the father’s requested 2/2/3 schedule or overnights. Instead, Nishikawa J. ordered that the respondent was entitled to unsupervised parenting time on a gradually increasing basis.
(3) Cross-Motion for Interim Spousal and Child Support
[24] At the same hearing, the appellant brought a cross-motion for interim spousal and child support on both compensatory and needs-based grounds. She sought amounts at the high-end of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) (“SSAGs”) and the Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”) due to her unemployment, citing childcare responsibilities and her prolonged absence from the workforce as the reasons for her inability to return to work. She attributed the gap in her employment to Post-Traumatic Stress Disorder (“PTSD”) from “years of abuse at [the respondent’s] hands”, as well as persistent back pain she had dealt with since 2011.
[25] The appellant argued a higher annual income should be imputed to the respondent because he failed to disclose required financial information, and the nature of his self-employed status and shareholder assets provided him with more cash flow than his reported income suggested. The respondent denied having any additional funds. He argued that his business had suffered due to the COVID-19 pandemic, and the separation caused him to incur significant debt. Further, the respondent argued that the appellant should be imputed with a minimal amount of $30,000 annually since she was intentionally unemployed while capable of working.
[26] Nishikawa J. found that the appellant was prima facie entitled to support as she had not been employed in over nine years at the time and the respondent was the family’s sole source of income during the marriage.
[27] Noting that the support inquiry at the interim stage did not require “an in-depth analysis of the parties’ circumstances”, Nishikawa J. found that there was a lack of evidence to impute the alleged income to the respondent. Instead, she determined it appropriate to use the respondent’s 2018 line 150 income of $93,035.
[28] Nishikawa J. was not prepared to impute income to the appellant. She cited the appellant’s absence from the work force over several years, her diagnosed mental health conditions and her status as primary caregiver to the parties’ young child, as considerations. In addition, she noted the mother’s lack of post-secondary education and the impact of the COVID-19 pandemic as hindrances to obtaining employment.
[29] Nishikawa J. ordered that the respondent pay spousal support at the mid-range of the SSAGs at $1,739 per month and child support of $855 per month on an interim without prejudice basis, based on the respondent’s reported 2018 income. She also ordered that both parties produce the requested financial disclosure that would allow the matter to be properly determined at trial.
(4) Renewed Motion for an Increase in Parenting Time
[30] On May 11, 2021, the parties returned before O’Brien J. for the hearing of a variation of parenting time brought by the respondent due to delay of the trial. At the time of the hearing, the respondent had 30 hours per week with 10 hours on Tuesdays, Thursdays and Saturdays. The respondent sought overnights with the child, as well as a gradually increasing schedule that would result in 50/50 parenting time. The appellant again opposed the motion, citing the respondent’s past abuse and requested that the matter be adjourned pending the completion of a mental health assessment.
[31] The appellant submitted new evidence of the respondent’s alleged abuse, including videotapes and photos of alleged injuries resulting from abuse before the child’s birth. Though O’Brien J. agreed that the new evidence provided further support to the claim that there was violence in the parties’ relationship, she held that she was “limited in [her] ability to make any final determination with respect to [the] incidents” without the benefit of viva voce evidence and cross-examination. Nonetheless, she relied on the previous endorsement by Nishikawa J. and found that the new evidence did not discredit the previous analysis and did not satisfy her that the respondent’s parenting time should not be increased. The “abundant” evidence before her demonstrated that “more recently, and since separation, [the respondent] had demonstrated an ability to parent [the child] appropriately.” Further, there were no allegations of violence, abuse, or inappropriate behaviour “of any kind” post-separation.
[32] Weighing the factors set out in s. 16(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), O’Brien J. found that it would be in the child’s best interests to gradually increase the respondent’s parenting time to include two overnight visits per week but declined to increase the time to a 50/50 split.
[33] On the same motion, the respondent requested, for the first time, sole decision-making authority with respect to health issues. Since the request had not previously been raised and the respondent did not have leave to bring a motion on decision-making, O’Brien J. declined to hear submissions on the issue.
(5) Motion for Request to Relocate
[34] On July 13, 2021, the appellant filed a notice of motion for summary judgment seeking an order permitting her to relocate the child’s permanent residence to Saint John, New Brunswick. On August 5, 2021, the motion was heard by Kimmel J.
[35] In an endorsement dated August 19, 2021, Kimmel J. determined that the interim request for relocation could not be determined off a paper record and dismissed the motion without prejudice. She found that the request raised genuine issues requiring a trial given the appellant’s challenges to the respondent’s credibility and the allegations of historic family violence. The appellant’s motion for leave to appeal the order to the Divisional Court was dismissed.
The Trial Before Justice Pinto
[36] Despite two requests for an adjournment by the respondent, whose counsel was unavailable at the time, the trial commenced September 12, 2022, before Pinto J. and lasted 11 days [1]. Both parties were self-represented. The respondent, as the applicant, sought joint decision-making and a 2/2/3 equal time parenting arrangement. The appellant sought sole decision-making and a relocation order permitting her to move with the child to New Brunswick.
[37] The appellant also sought $150,000 in damages under the new tort of family violence established in Ahluwalia v. Ahluwalia, 2022 ONSC 1303, 161 O.R. (3d) 360, for the physical and mental abuse that she suffered over the course of the relationship. Since the trial, this court released its decision, which reduced the $150,000 damages award in that case to $50,000 and held that in the circumstances of that case, existing torts, properly applied, address the harm suffered such that a novel tort for family violence was unnecessary: see Ahluwalia v. Ahluwalia, 2023 ONCA 476, 167 O.R. (3d) 561. Leave to appeal to the Supreme Court was granted: [2024] S.C.C.A. No. 41061. The appeal was argued on February 12, 2025 and judgment reserved.
(1) The Respondent’s Evidence
[38] The respondent described his marriage to the appellant as toxic. He claimed that much of their disagreements were borne out of their different interpretations of the other’s actions during fights. The respondent cited the appellant’s OCD as the reason for much of the parties’ conflict; he testified that it affected not only their relationship, but also her parenting, as he alleged the appellant’s OCD got worse after the child was born.
[39] The respondent opposed the appellant’s relocation to New Brunswick because he believed her plan for their life in Saint John was speculative. He also sought joint decision making, citing several concerns about the appellant’s parenting. For example, on the appellant’s insistence, the child was still being breastfed and taking frequent naps, which he opposed due to the child’s age: four and a half years old at the time of the hearing. The respondent also cited concerns with the child’s medical care, development and socialization as he believed the appellant was intentionally not facilitating any social outings for the child or herself. Further, her resistance to both potty-training and vaccination meant that the child could not attend school.
[40] The respondent maintained that despite their disagreements, he considered the appellant to be a loving and caring parent to the child.
(2) The Appellant’s Evidence
[41] The appellant led evidence that the respondent was physically, verbally, and mentally abusive. She testified that the respondent threatened to kill himself and kill her in violent and disturbing ways. The appellant additionally alleged that the respondent was “financially abusive”, in that he threatened to hire a “legal shark” in the proceedings to deplete her and her family’s savings. She testified that the abuse caused her to suffer from PTSD and situational depression, and exacerbated her OCD symptoms.
[42] The appellant explained that she wanted to move to Saint John with the child to have a fresh start with the love and support of her family, which she needed to recover from the relationship. It was the absence of this love and support, she argued, that had stunted her ability to deal with the lasting effects of the abuse on her self-esteem and mental health.
[43] The appellant claimed that her failure to facilitate social relationships for herself or the child in Toronto was partly because of her poor health and partly because of the COVID-19 pandemic. The appellant took the position that she was not an “anti-vaxxer”, but instead a “free rider”, meaning that she would allow the child to be vaccinated in certain situations, but would take advantage of any exceptions to vaccinations offered by schools or other public authorities.
[44] The appellant cited the psychological effects of the abuse, her low level of education and back pain as having contributed to her unemployment. In addition, if she did work, she would have to find childcare, which she could not afford. She claimed that moving to Saint John would help with most of the above factors; she would have the support of family to help care for her and the child, and the cost of living in Saint John was lower relative to Toronto. She conceded that she was not taking any medication to help with her back and had not sought out any low-income support programs.
[45] While the appellant conceded that the respondent had never been violent toward the child, she expressed fear that he would one day, just as the respondent’s father had been toward him. She believed that this fear has not yet materialized only because the child has not yet reached the age the respondent was when his father started his pattern of abuse.
The Decision Below
[46] On May 25, 2023, the trial judge released his decision dismissing the relocation request and granting a 2/2/3 parenting schedule, in addition to making ancillary orders about decision-making, spousal and child support. The primary findings are discussed below.
(1) The Request for Relocation
[47] The trial judge instructed himself to use the “blended approach” to determine what parenting arrangement was in the best interests of the child, meaning that he did not consider the appellant’s relocation request separately from the other parenting issues: Chapman v. Somerville, 2022 SKCA 88, at para. 41.
[48] He went on to consider the factors enumerated in s. 16(3) of the Divorce Act and found that the most relevant factors that applied here were: the child’s needs given his age and stage of development (s. 16(a)); the nature and strength of the child’s relationship with each spouse and others who play an important role in the child’s life (s. 16(b)); each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse (s. 16(c)); any plans for the child’s care (s. 16(g)); and any family violence and its impact (s. 16(j)).
[49] The trial judge first addressed the issue of family violence. He found that the respondent engaged in family violence by “beating” the appellant “over the course of many years”, normalizing violence and verbal abuse throughout the course of their relationship.
[50] Nonetheless, while he recognized that childhood exposure to family violence may cause harm or risk of emotional problems for children later in life, he found that these risks were attenuated by the child’s young age and relatively short exposure to family violence:
[G]iven the specific facts of this case, including the fact that [the child] was 16 months old when his parents separated, and that there have been no further incidents of violence against the [mother] post-separation, I am satisfied that there is little risk to [the child] experiencing physical, emotional, or psychological harm when he is being cared for by [the respondent]. I do not find that the family violence that has occurred in the parties’ marital relationship would affect the ability and willingness of [the respondent] to care for and meet [the child’s] needs, considering the totality of the evidence before me. [Emphasis in original].
[51] In addition, the trial judge found that there was no evidence to support the appellant’s position that the respondent had not abused the child only because he had not yet reached the age at which the respondent’s father began his pattern of abuse. The finding of family violence was therefore not determinative of the parenting arrangement in line with the child’s best interests.
[52] The trial judge found that based on the child’s age at trial (almost 5 years old), he needed greater independence and socialization to meet the proper stages of development. He found that the respondent was more prepared and better equipped to facilitate the child’s needs, as the appellant was responsible for much of the child’s lack of exposure and socialization outside of the home. He rejected the appellant’s position that things would change once she moved to New Brunswick as speculative and found that the appellant had not demonstrated that she was taking positive steps towards the child’s social and educational development. The trial judge expressed concern that the appellant had difficulty differentiating what was in the child’s best interests as opposed to what was in her own best interests. He found that she often projected her own subjective views onto her son when describing prior events. The trial judge concluded that the child’s need for stability would be best met in Toronto, given that he grew up in the city and if he was to move to New Brunswick, his time with his father would likely be greatly reduced.
[53] The trial judge found that the child’s relationships with both his paternal grandmother and the appellant’s family were positive and affectionate. However, the trial judge found that the child’s relationship with the appellant’s family was largely aspirational, given the infrequency with which they had seen him since his birth. In contrast, the child’s paternal grandmother saw him at least twice a week. The trial judge found that a move to New Brunswick would sever this important relationship. While he acknowledged that the appellant’s family testified that they would care for the child in New Brunswick, he found that his focus had to be on the appellant and her parenting, not on the intentions of the appellant’s family.
[54] Turning to the willingness of each party to support the child’s relationship with the other, the trial judge highlighted that the respondent was prepared to share parenting time equally, while the appellant sought to reduce the respondent’s parenting time. She believed that as long as he was not honest about his abusive behaviour during their relationship, he remained a threat to the child.
[55] The trial judge found that the respondent’s plans for the child’s care were more realistic for nearly the same reasons that he found the respondent was the parent who could better provide for child’s needs.
[56] The trial judge considered the additional factors enumerated in s. 16.92(1) of the Divorce Act, as required when considering a request for relocation. After considering all the factors, the trial judge found that relocation would be detrimental to the child. While he accepted that the move would likely be beneficial for the appellant, he emphasized that the focus of his analysis had to be on the child’s best interests. First, the move would strain the child’s relationship with the respondent and his paternal grandmother. Given the finding that the respondent had a better plan of care and development, he found that separation would be detrimental. Second, the trial judge again stressed that while he acknowledged the appellant’s family had offered to help after the move, his focus had to remain on the appellant’s ability to provide for the child. He found that he had little evidence that things would be different for the appellant in New Brunswick in terms of employment, socialization, and supporting the child’s needs, given that the appellant had not yet taken any steps to change her circumstances.
[57] In conclusion, the trial judge held that while he understood why the appellant wanted to move to New Brunswick, and how it could be beneficial for her own development, it was not in the child’s overall best interests to relocate.
(2) The Parenting Order
[58] Starting with decision-making authority, the trial judge instructed himself to follow the principle set out in Kaplanis v. Kaplanis, 2005 ONCA 266, to determine if joint decision-making would be appropriate. He found that the evidence showed that the parties were at fundamental odds about virtually all aspects of parenting, and that their disagreements often arose from the appellant’s insistence that things be done her way. Given the appellant’s resistance to vaccination and the resulting impact on the child’s ability to attend school, the trial judge found that joint decision-making with respect to health and education decisions was not feasible. The respondent was thus awarded sole decision-making over decisions pertaining to health and education. All other decisions were to be jointly made.
[59] Turning to parenting time, the trial judge accepted the respondent’s request for a 2/2/3 equal time parenting arrangement based on his factual findings under the factors enumerated in s. 16(3) of the Divorce Act.
(3) The Request for Support
[60] The respondent argued that his child support obligations should be varied based on his reported income from 2017-2021. He submitted evidence of his annual income reported to the Canada Revenue Agency that established the following amounts:
- 2017 – $123,074 based on his Notice of Assessment (“NOA”)
- 2018 – $93,753 (NOA)
- 2019 – $76,370 (NOA)
- 2020 – $43,137 (NOA)
- 2021 – $46,093 (Line 150 Income, not NOA)
[61] The trial judge accepted that the respondent’s business was significantly impacted due to the COVID-19 pandemic, causing his earnings to diminish in 2020 and 2021. However, he found that as of 2022 onwards, the respondent had failed to “clearly delineate the sources of his income” making it difficult to approximate his income for the purpose of determining child support in accordance with ss. 16 - 20 of the Guidelines.
[62] As a result, the trial judge found that the respondent’s Guidelines income for 2022 was $76,370 to account for, inter alia, the waning effects of the pandemic, the respondent’s role as shareholder, director or officer of a corporation, and the lack of evidence on the specifics of his business’ income and deductions, leading to an adverse inference. Nevertheless, he found that the income previously attributed to the respondent was higher than what he was actually earning and as a result, the respondent had overpaid in both child and spousal support.
[63] The trial judge also accepted the respondent’s submissions that the appellant’s lack of efforts to find employment or apply for any government assistance was unreasonable, and that she was intentionally unemployed. In his view, since the child was getting to an age where he could have been enrolled in daycare or spent more time with his father, the appellant could and should have made efforts to find work. The impetus to do so should have grown once it became apparent during the lengthy litigation that she would not be relocating to New Brunswick anytime soon. By January 1, 2022, the parties would have been separated for almost 2.5 years, which he opined was “adequate time, given [the appellant’s] circumstances, to contribute some income to the parties’ relationship.” Consequently, the trial judge found that, effective January 1, 2022, the appellant would be imputed an annual minimum wage salary of $31,000.
[64] Using the amounts as prescribed by the Guidelines, the respondent was ordered to pay $712 per month in child support based on his income of $76,730; and the appellant was ordered to pay $264 based on her imputed income of $31,000. Due to the newly imputed income toward the appellant, the respondent was credited for $7,013 for overpayment of child support up to and including September 2022.
[65] For spousal support, the trial judge ordered that the respondent pay $0 based on his finding that the appellant could have and should have found work during the relevant period. The respondent was credited with an overpayment of $27,560, due to the appellant’s imputed income.
[66] Finally, the respondent was ordered to pay an equalization payment pursuant to s. 5 of the Family Law Act, R.S.O. 1990, c. F.3. The trial judge found that in submitting his financial records and Net Family Property (“NFP”) statement, the respondent had failed to include certain amounts and had double-counted loans from his parents in the amount of $65,000 as both a debt to be repaid and an investment of funds as consideration for share ownership of his companies, resulting in a lesser ownership interest for him. To rectify the double counting, the trial judge recalculated the NFP amounts and based on the adjustments, ordered equalization totalling $49,567.63 to be paid to the appellant.
[67] Despite the finding of historical family violence, the trial judge declined to make a ruling on the appellant’s damages claim per Ahluwalia, as this court’s decision was pending. He decided instead to defer his order until the decision was released and if applicable, request further submissions from the parties.
Fresh Evidence
[68] The appellant seeks to have an affidavit, sworn by her on September 26, 2024, updating her financial status, admitted as fresh evidence, together with supporting documentation.
[69] In Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, the Supreme Court of Canada emphasized that the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below. [2] Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice.
[70] The Palmer criteria consist of the following principles to guide the discretion of the appellate court considering the admission of fresh: see Barendregt, at para. 29:
(i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will not be applied as strictly in a criminal case as in civil cases);
(ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
(iii) the evidence is credible in the sense that it is reasonably capable of belief; and
(iv) the evidence is such that, if believed, it could have affected the result at trial.
[71] As the Supreme Court stated in Barendregt, without undermining finality, “in cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life” (at para. 4).
[72] The evidence tendered by the appellant concerns her and the child’s dire living circumstances since December 11, 2023, after trial and the respondent’s post-trial failure to pay child support. These circumstances occurred after the trial and, in the appellant’s submission, as a result of the support orders of the trial judge. It is unclear, however, whether the proposed evidence satisfies the first Palmer criterion that they could not, by the exercise of due diligence, have been obtained for the trial. As the Supreme Court emphasized in Berendregt, at paras. 57-61:
In sum, the focus of the due diligence criterion is on the litigant’s conduct in the particular context of the case. Considering whether the evidence could have been available for trial with the exercise of due diligence is tantamount to the requirement that the evidence could not, with the exercise of due diligence, have been obtained for trial. Where a party seeks to adduce additional evidence on appeal, yet failed to act with due diligence, the Palmer test will generally foreclose admission.
[73] The circumstance of living in a shelter in East Scarborough, far from the child’s school is arguably relevant to the sole consideration in a case involving parenting orders; namely, the child’s best interests, as required by s. 16(1) of the Divorce Act and s. 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[74] The respondent opposed admission of the fresh evidence. He does not dispute that the appellant is living in a shelter but argues that the appellant is manipulating the situation to place herself in a shelter by failing to apply for all the benefits to which she is entitled, and using her available resources for storage fees rather than proper shelter.
[75] Further, while acknowledging he did not pay the child support pursuant to the trial judge’s order, the respondent asserts that since May 2023, pursuant to a “side-arrangement,” he has been paying for a range of expenses in lieu of child support and in excess of his obligations. According to the respondent, he mistakenly thought he did not need to meet his support obligations while the appellant had not yet returned the overpayment identified by the trial judge, and once alerted to this error in July 2024, began paying support in August 2024.
[76] While, in our view, the appellant may be able to satisfy the first prong of Palmer, we do not see a basis for admission based on the other criteria.
[77] We do not see this evidence bearing on a decisive or potentially decisive issue. The trial judge had evidence of the appellant’s financial circumstances before him, and we are not in a position to determine if this proposed evidence is credible. Finally, given the conclusions we reach below, we do not see how this evidence could have affected the result.
[78] We would dismiss the motion to admit the fresh evidence.
ISSUES
[79] The appellant raises two grounds of appeal:
- The trial judge erred in denying the appellant’s request to relocate to New Brunswick; and
- The trial judge erred in calculating spousal and child support.
ANALYSIS
(1) The Trial Judge Did Not Err in His Decision on Relocation
(a) Standard of Review
[80] Decisions in family law cases are subject to a narrow scope of appellate review due to the highly fact-specific and discretionary determinations made by trial courts: Barendregt v. Grebliunas, 2022 SCC 22, at paras. 100, 6, citing Van de Perre v. Edwards, 2001 SCC 60, at para. 11. Since the trial judge has the intangible benefit of hearing from the parties directly, the trial court is best positioned to determine a parenting arrangement, including a request for relocation: Barendregt, at paras. 100-101.
[81] As this court has confirmed, our task is not to impose the decision we would have made after engaging in a fresh analysis or balancing the various factors differently. We can intervene only if the motion judge erred in law or made a material error in the appreciation of the facts: J.N. v. C.G., 2023 ONCA 77, at paras. 9-10, leave to appeal refused, [2023] S.C.C.A. No. 112; and Shipton v. Shipton, 2024 ONCA 624, at para. 22.
(b) The Trial Judge Made No Reversible Error in His Analysis or Conclusion
[82] We find no error in the trial judge’s findings with respect to the appellant’s request for relocation. The trial judge properly instructed himself on the “blended approach” to determine what parenting arrangement was in the best interests of the child. He did not consider the appellant’s relocation request in isolation or separate it from the other parenting issues: Chapman v. Somerville, 2022 SKCA 88, at para. 41. His analysis considered the applicable factors set out in s. 16(3) and s. 16.92(1) of the Divorce Act, as required when considering a request for relocation.
[83] The appellant argues that the trial judge made palpable and overriding errors in (i) failing to properly apply his findings of family violence to the issue of relocation which reflected improper stereotypical reasoning; (ii) failing to properly consider the reasons for the move, including the importance of a happy and well-adjusted primary parent; and (iii) rejecting the OCL Report recommending sole decision-making to the appellant. We will address each issue in turn.
(i) The Trial Judge’s Reasoning Did Not Perpetuate Myths and Stereotypes About Family Violence
[84] We agree with the appellant that a finding of family violence is an important factor in mobility cases: Barendregt, at para. 147. Where allegations of family violence are raised, it is incumbent on the trial judge to carefully evaluate the allegations, and approach them with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt, at para. 144.
[85] The judge must be attentive to the harm a child may experience through indirect exposure to domestic conflict: Shipton, at para. 27.
[86] The appellant submits that the trial judge improperly focused on his finding that the respondent had not physically harmed the child and his finding that there had been no violence between the parties since the separation. According to the appellant, not only did the trial judge err in finding these factors to be determinative, but his reasoning perpetuated myths and stereotypes about family violence.
[87] We are not persuaded by the appellant’s submission. In our view, the trial judge was attentive to the impact of family violence on the best interests of the child. The trial judge highlighted the importance of family violence in his analysis by considering this factor first with respect to the enumerated considerations under s. 16(3). He focussed his analysis under s. 16(3)(j): (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply, to cooperate on issues affecting the child.
[88] The trial judge also recognized that family violence impacts children through indirect exposure, observing:
I am mindful that research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497: Barendregt, at para. 143: McIntosh v. Baker, 2022 ONSC 4235, at para. 18. [Emphasis added.]
[89] However, the trial judge grappled with the specific facts of the case and he concluded: “I do not find that the family violence that has occurred in the parties’ marital relationship would affect the ability and willingness of the [respondent] to care for and meet [the child’s] needs, considering the totality of the evidence before me.” (Emphasis in original). We see no support for the submission that the trial judge engaged in prohibited stereotypical reasoning in his analysis. To the contrary, the trial judge highlighted the specific facts of the case and concluded that given that the child was 16 months old when the parties separated and that there had been no further incidents of violence since the separation there was little risk to the child (who was 4 ½ years old at the time of trial) experiencing physical, emotional or psychological harm when he was being cared for by the respondent. That was a finding that was open to the trial judge, and we see no basis to interfere with it.
(ii) The Trial Judge Did Not Err in His Consideration of the Appellant’s Reasons for the Move
[90] The appellant argues that the trial judge erred in his analysis of her reasons for the move because he failed to properly account for the interrelatedness of a parent’s wellbeing with the best interest of a child: Barendregt, at para. 173. The appellant submits that the trial judge paid “lip-service” to this principle and failed to apply it to the appellant’s reasons for the move, resulting in a palpable and override error.
[91] The appellant’s position mischaracterizes the approach of the trial judge. The trial judge set out the appellant’s reasons for the move and then highlighted the case law affirming that an improvement in a parent’s wellbeing is often in the best interest of the child. The trial judge recognized “the benefits that may accrue to the appellant” from the move, but that his “focus must remain on the best interests” of the child, and he then listed several other relevant considerations related to the mother’s motivation and plan for the move. He noted:
- the appellant has not lived in New Brunswick for 14 years;
- the appellant has no vocational or educational plan for herself in New Brunswick;
- the appellant’s plan for herself and the child is entirely dependent on the goodwill of her parents and family;
- the appellant’s reasons for the move were strongly premised on her only being able to recover from family violence once she gets to New Brunswick, even though the parties have continued to live in Toronto and have been separated for 3 years; and
- the family dynamics between the parties is such that the move to New Brunswick would compromise the relationship between the child and the respondent.
[92] The trial judge’s reasons do not disclose error; the focus of the analysis under s. 16(3) remains, under each subsection, on the best interests of the child. While it is undisputed that the improvement in wellbeing of the parent requesting relocation is an appropriate consideration under the analysis, it is only one factor among many that the trial judge considered. It is clear that the trial judge considered that factor but in the end found it did not outweigh other relevant considerations.
(iii) The Trial Judge Gave Appropriate Weight to the OCL Recommendations
[93] The appellant claims that the trial judge did not give the OCL recommendation relating to relocation sufficient weight in his analysis. We reject this argument in light of the factual findings made by the trial judge.
[94] The trial judge acknowledged the OCL recommendation that the appellant be permitted to relocate to New Brunswick with the child. However, the trial judge concluded the report’s recommendations were “stale dated” given the significant length of time between the report and trial. In addition to the considerable passage of time, the trial judge found that the recommendations were a product of the circumstances that were no longer at play; at the time of the report, there was a non-contact order between the parties and the child was much younger (28 months). At the time of trial, the child was between four and a half and five years old, and the parties were in contact, even taking the child on outings together to Canada’s Wonderland the previous summer.
[95] In our view, the trial judge did not err in his consideration of the OCL report. The crux of the appellant’s complaint is that the trial judge did not give enough weight to the report. That is not a legal error. What weight the OCL recommendation was to be given was for the trial judge and he did not exercise his discretion unreasonably. Instead, he considered the context in which the report was made and his findings with respect to the changes in the child’s needs and circumstances. It was on this basis that he declined to follow the recommendation of the report.
[96] In sum, appellate intervention in a relocation decision, as noted above, is warranted only where a material error, a serious misapprehension of the evidence, or an error in law has occurred. The trial judge’s relocation analysis reveals no such reversible error.
[97] For these reasons, we would reject the first ground of appeal and affirm the trial judge’s decision on relocation.
(2) The Trial Judge’s Error in the Order for Support
[98] The trial judge made the following orders for child and spousal support covering the period of the interim order of Nishikawa J. until the trial, and the period going forward from the trial.
[99] With respect to child support, pursuant to ss. 15.1(1) and (3) of the Divorce Act, the trial judge held the following:
| Time Period | Appellant’s imputed annual income | Respondent’s imputed annual income | Monthly child support obligation [3] |
|---|---|---|---|
| October 2019 to December 2019 | $0 | $76,370 | $0 payable by either party |
| January 2020 to July 2020 | $0 | $43,137 | $0 payable by either party |
| August 2020 to December 2020 | $0 | $43,137 | $395 to the appellant |
| January 2021 to December 2021 | $0 | $46,093 | $427 to the appellant |
| January 2022 to September 2022 | $31,000 | $76,370 | $712 to the appellant |
| October 2022 to December 2022 | $31,000 | $76,370 | $712 to the appellant |
| January 2023 onward | $31,000 | $76,370 | $712 to the appellant |
[100] The trial judge made the awards above subject to a credit in favour of the respondent for any overpayments, representing the difference between what he had paid subject to the interim order of Nishikawa J., and his actual obligations for that period as established on a fresh imputation of income. As referenced, the respondent was credited in the amount of $7,013 in respect of his overpayment of child support up to and including September 2022.
[101] With respect to spousal support, pursuant to ss. 15.2(1) and (3) of the Divorce Act, the trial judge held:
| Time Period | Appellant’s imputed annual income | Respondent’s imputed annual income | Monthly spousal support obligation |
|---|---|---|---|
| October 2019 to December 2019 | $0 | $76,370 | $0 payable by either party |
| January 2020 to July 2020 | $0 | $43,137 | $0 payable by either party |
| August 2020 to December 2020 | $0 | $43,137 | $666 to the appellant |
| January 2021 to December 2021 | $0 | $46,093 | $726 to the appellant |
| January 2022 to December 2022 | $31,000 | $76,370 | $0 [4] |
| January 2023 onward | $31,000 | $76,370 | $0 |
[102] Underlying these orders is the imputation of additional income to the respondent prior to 2022 and to the appellant after 2022.
Disposition
[151] For these reasons, we would allow the appeal and vary the support obligations of the respondent to the appellant as set out above. We trust that the parties can agree on adjustments based on amounts already paid. If not, the parties may make brief submissions to the court of no more than 3 pages on this issue.
[152] The appellant is entitled to the costs of this appeal, which we would fix in the agreed upon amount of $7,500, all-inclusive.
Released: March 13, 2025
“J.S.”
“S. Coroza J.A.”
“L. Sossin J.A.”
“I agree. Janet Simmons J.A.”
Footnotes
[1] The adjournments were denied because they would have required a lengthy delay in commencing a trial involving a relocation request.
[2] In Barendregt, the Court emphasized that, “[30] Palmer applies when evidence is adduced on appeal ‘for the purpose of asking the court to review the proceedings in the court below’: Shulman, at para. 44. Palmer does not, however, apply to evidence going to the validity of the trial process itself (R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 76‑77), nor to evidence adduced ‘as a basis for requesting an original remedy in the Court of Appeal’, such as a stay of proceedings for an abuse of process (Shulman, at paras. 44‑46).”
[3] The trial judge held that the respondent’s support obligation should commence in August 2020 because prior to that date the respondent was paying monthly townhouse rent and credit card bills for the appellant in lieu of support.
[4] The respondent was credited with the amount of $27,560 for overpayments of spousal support up to and including September 2022.
[5] As referenced in the facts section, Nishikawa J. calculated that the applicant’s yearly income was in fact $93,035.
