Court File and Parties
COURT FILE NO.: FS-19-12956
DATE: 20210527
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vikas Kohli Applicant
AND:
Sheri Thom Respondent
BEFORE: Madam Justice O’Brien
COUNSEL: R. Niman and Patricia Gordon for the Applicant
D. Sherr for the Respondent
HEARD: May 11, 2021
ENDORSEMENT
[1] The Applicant father, Mr. Kohli, brings this motion to expand his parenting time with the parties’ son, X, who is three years old. This motion follows a long motion brought by the Applicant in November 2020, in which the Applicant sought and was granted increased and unsupervised parenting time. Prior to that motion, the parties had agreed on a without prejudice basis that the Applicant would have 12 hours of supervised parenting time per week.
[2] The Applicant and the Respondent, Ms. Thom, were married from May 14, 2003 to September 11, 2019. They have one child, X, who was born in April 2018.
[3] By decision dated February 4, 2021 (found at Kohli v. Thom, 2021 ONSC 927), Nishikawa, J. ordered that the Applicant was entitled to unsupervised parenting time on a gradually increasing basis, such that currently he has 30 hours per week, with 10 hours on each of Tuesdays, Thursdays and Saturdays. In addition, the Respondent mother, Ms. Thom, was required to facilitate video calls between the Applicant and X on the days on which the Applicant did not have parenting time. Nishikawa, J. stated that the parenting schedule she ordered was without prejudice to the Applicant’s ability to bring a motion for overnights or additional parenting time after April 26, 2021, particularly if the trial of this matter is delayed.
[4] The trial of this matter now is delayed. Kraft, J. specifically granted the Applicant leave to bring this motion at a case conference on March 12, 2021. A combined settlement/trial management conference is scheduled for July 21, 2021, but questioning still needs to occur, as well as a long motion scheduled for August 5, 2021 by which the Respondent is seeking an order permitting her to relocate with X to New Brunswick.
[5] On this motion, the Applicant is seeking increased parenting time to include overnights with X. He proposes a gradually increasing schedule that would result in 50/50 parenting time within approximately six weeks of my order.
[6] The Respondent opposes any increase in parenting time. She alleges that the Applicant was violent and abusive in their marriage. She is concerned that the Respondent is not capable of controlling his impulses and ultimately will behave in an abusive manner toward X. She asks that the matter of increased parenting time be adjourned pending the completion of a mental health assessment of the Applicant.
[7] The Applicant denies physical abuse toward the Respondent during their cohabitation but acknowledges that they experienced significant conflict, including often yelling at each other. He alleges that the conflict arose in part from issues arising from behaviours associated with the Respondent’s anxiety and obsessive-compulsive disorder (“OCD”), which during certain periods were untreated.
[8] I note that the Applicant also raised on this motion a request for sole decision-making authority with respect to health issues. The motion was scheduled for one-hour and the Applicant did not have leave to bring a motion on decision-making. Accordingly, I declined to hear submissions on that issue.
[9] For the reasons that follow, I conclude, on an interim basis, that it is in X’s best interests to increase the Applicant’s parenting time to include overnights, though not to increase it to 50/50 at this time.
Legal Principles
[10] In determining parenting time, as set out in the recently amended Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the only consideration is the best interests of the child. Subsection 16(1) provides:
16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
[11] At s. 16(3), the Divorce Act provides a non-exhaustive list of factors to consider in determining the best interests of the child. However, the central focus must always be the child’s physical, emotional and psychological safety, security and well-being. To that end, subsection 16(2) provides:
16(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[12] The factors set out in s. 16(3) are:
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b. The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
d. The history of the care of the child;
e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
g. Any plans for the child’s care;
h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
i. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
j. Any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in 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 co-operate on issues affecting the child; and
k. Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[13] In this case, the Respondent has made serious allegations that the Applicant committed family violence when the parties lived together. Therefore, it is important to consider the factors related to family violence, as set out in s. 16(4) of the Divorce Act. These are:
a. The nature, seriousness and frequency of the family violence and when it occurred;
b. Whether there is a pattern of coercive and controlling behaviour in relation to the family member;
c. Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
d. The physical, emotional and psychological harm or risk of harm to the child;
e. Any compromise to the safety of the child or other family member;
f. Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
g. Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
h. Any other relevant factor.
[14] I have reviewed the broad and detailed definition of “family violence” contained in s. 2(1) of the amended Divorce Act and note that it encompasses, for example, the “direct or indirect exposure” of a child to the impugned conduct. Family violence includes conduct that is violent or threatening and conduct that constitutes a pattern of coercive and controlling behaviour. It also includes conduct that causes the impacted family member to fear for their own safety or for the safety of another person.
[15] Subsection 16(5) cautions against taking into account past conduct as follows:
16(5) In determining what is in the best interest of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[16] Subsection 16(6) addresses the allocation of parenting time, emphasizing again the principle of the best interests of the child as follows:
16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[17] Finally, I note that pursuant to s. 16.1(2) of the Divorce Act, I am authorized to make an interim parenting order pending determination of an application.
Endorsement of Nishikawa, J.
[18] The Respondent has not addressed most of the factors set out in s. 16(3) of the Divorce Act, as her overarching submission is that the Applicant is violent and abusive. She submits that the Applicant is impulsive and over time cannot be trusted to behave in a safe manner with X.
[19] However, in her recent endorsement, on a fulsome and comprehensive record, Nishikawa, J. directly addressed this issue and ordered increased, unsupervised parenting time for the Applicant. I agree with the conclusions of Nishikawa J. and the new evidence the Respondent has filed on this motion does not persuade me that Nishikawa, J.’s conclusions should be changed.
[20] Although she faced the challenge of a paper record without cross-examination, and in spite of the Applicant’s denial of violence, Nishikawa, J. acknowledged an evidentiary basis for a finding of violence. She found that, on the record before her, the Respondent’s allegation of abuse had “some evidentiary basis.” She noted an “apparent acknowledgment of physical abuse” by the Applicant in some of his e-mails. She also noted that the report of the Office of the Children’s Lawyer (“OCL”) referenced collateral information that verified the Respondent’s allegations of abuse. She further stated at para. 41:
When weighed against the Respondent’s detailed allegations, the Applicant’s blanket denial rings hollow. Moreover, in a number of email messages, the Applicant unleashes torrents of insults and name-calling in extremely offensive language. The content of those messages is abusive. Other than to allege that the Respondent has altered some of the email chains, the Applicant has not offered an explanation for those messages or for the email messages that acknowledge physical abuse.
[21] In spite of finding an evidentiary basis for the Respondent’s allegations, Nishikawa, J. ultimately ordered an expansion of the Applicant’s parenting, including for his parenting time to become unsupervised. First, she concluded that the e-mail chains and alleged incidents relied on by the Respondent took place at “a time of considerable conflict, hostility, and instability in the parties’ relationship” when the parties were not yet parents. She found that the historic evidence had to be examined within the context of the evidentiary record as a whole, including more contemporaneous evidence of the parties’ respective parenting abilities.
[22] At the motion before me, the Respondent submits that Nishikawa, J. incorrectly understood the conflict between the parties to be limited to a particular time during their relationship. She has submitted new evidence of videotapes from the period the parties were living together, both before and after X’s birth. The videos mostly capture the Applicant yelling and swearing in a highly agitated manner at the Respondent, with the Respondent also swearing and contributing, but in a calmer and less aggressive manner. In one video, it appears that the video ends at a moment when the Applicant physically rushed at the Respondent and she was frightened. The Respondent also details in her affidavit specific incidents of alleged abuse from before X’s birth, such as photographs from alleged incidents on May 13, 2015 and July 23, 2016 that show red markings on her body. She says these photographs represent the Applicant having slapped and grabbed her. She also recounts that in 2019, the “Applicant grabbed me and slammed my body up against a brick wall.”
[23] I agree that these videos, photographs and other allegations provide further evidence suggesting violence in the parties’ relationship while living together. On this motion, without viva voce evidence and the benefit of cross-examination, I am limited in my ability to make any final determination with respect to these incidents. I agree with the Applicant’s submissions that the videotapes should be viewed with some caution, as it was under the Applicant’s control as to when she would start and stop a video. The Applicant alleges that the Respondent would provoke him and say she “could not hear [him]” during an argument, and then record him. He also has provided some videos of his own, for example one in which the Respondent is threatening to call the police because the Applicant was taking X to the park. Nonetheless, the Respondent’s videos and photographs do provide further evidence of the high conflict during the parties’ cohabitation and provide some evidence of violence and abuse.
[24] As this is not an appeal of Nishikawa, J.’s decision, and keeping the best interests of the child at the forefront, I am entitled to consider new evidence that was not before Nishikawa, J., even covering the same time period addressed by her decision. That said, I conclude that the new evidence does not change Nishikawa, J.’s analysis, with which I agree, nor does it convince me that the Applicant’s parenting time should remain at its current level, without any overnight visits.
[25] The reason Nishikawa, J. ordered unsupervised parenting time is because of the abundant evidence that, more recently and since separation, the Applicant had demonstrated an ability to parent X appropriately. She relied on the OCL report sworn July 29, 2020, in which the OCL clinician both observed the Applicant’s interactions with X and gathered information from collateral sources. This information did not reveal any concerns or indicators that the Applicant presented as aggressive or hostile to X. Nishikawa, J. also found at para. 52 of her decision substantial evidence in the record from third parties to support that the Applicant is a “loving, caring and attentive father.” This included evidence from supervised access centre workers, who described the Applicant as “calm,” “gentle,” and “attentive.”
[26] In addition, Nishikawa, J. noted at para. 54 that the Applicant had attended counselling since September 2019. The counsellor completed an anger assessment that raised no red flags. The counsellor stated that the Applicant did not express anger about the court process nor place blame on the Respondent. The counsellor further stated that the Applicant is focused on resolving problems, is engaged in counselling, and receives support from others, including a dad’s group and friends.
[27] The Respondent submits that Nishikawa, J. should not have accepted this evidence, as the Applicant had “fed” the counsellor a “false narrative” about himself. Further, given that the Applicant wholly denies the abuse, he could not have gained insight nor reformed and rehabilitated.
[28] I understand the Applicant’s fear given her narrative of her experience with the Respondent; however, the evidence on this motion, does not support a finding that the Applicant is a threat to or will cause harm to X. As further discussed below, the violence and abuse pre-dates separation, was not directed to X, and the evidence post-separation points to the Applicant having a warm and loving relationship with X.
[29] Indeed, Nishikawa J. stated as follows at para. 55:
Significantly, the Respondent acknowledged to the OCL clinician that she has no specific concerns about the Applicant’s parenting and that she wants the Applicant and X to have a close relationship.
[30] The OCL clinician swore her affidavit attesting to the report on July 29, 2020, approximately ten months after the parties’ separation and therefore well after all the new alleged incidents of abuse before me. Indeed, as discussed below, there are no allegations of violence, abuse or inappropriate behaviour of any kind of which I am aware post-separation.
[31] In short, I do not find that the new evidence would change the overall conclusions of Nishikawa, J.’s endorsement.
Evidence since new schedule of unsupervised parenting
[32] The order of Nishikawa, J. took effect on February 7, 2021, first with the Applicant’s parenting time supervised by his mother and then with unsupervised parenting time commencing on March 7, 2021. Since March 28, 2021, the Applicant has had 30 hours of unsupervised parenting time per week, on Tuesdays, Thursdays and Saturdays from 9 a.m. to 7 p.m..
[33] The Applicant’s evidence is that the unsupervised parenting time has been entirely successful, and that X “thrives” in his care. He states that since the increased parenting time, X no longer is “frantic” and “clingy” about their short time together. The Applicant describes cooking and eating together, during which he introduces X to foods and traditions from his Indian heritage. He says X now naps well in his home and that he has many toys in the home for X. According to the Applicant, X loves playing with him in the park next to his home and they enjoy music and dancing together. The Applicant also emphasizes that his mother lives with him and that the parenting time allows X a relationship with her, including more opportunity to learn about his Indian family and heritage.
[34] The Applicant specifically relies on the importance of having some overnight time with his child, as referenced in Hasan v. Khalil, 2012 ONSC 7264, at para. 17.
[35] The Respondent raises some concerns about the Applicant’s expanded parenting time. She has noticed X having more extreme tantrums that involve self-biting, which started after the expanded parenting time. She finds X to be more anxious, fearful, and clingy with her.
Applying factors to determine the best interests of the child
[36] Considering this evidence, as well as the findings of Nishikawa, J. described above, I now address the factors from s. 16(3) of the Divorce Act that I consider most important to determining X’s best interests.
[37] The child’s needs, including the need for stability and the history of the care of the child: Although the Respondent’s primary submission is that the Applicant should not have expanded parenting time with X because of concerns about volatility, abuse and violence, I also take into account that she has been X’s primary caregiver. The OCL report noted this and recommended that the Respondent have sole custody of X.
[38] The nature and strength of the child’s relationship with each spouse and any grandparents: There is no dispute that X has a strong bond with the Respondent. To his credit, the Applicant’s evidence acknowledges that the Respondent is a loving mother. At the same time, the third-party evidence in the OCL report supports that the Applicant is a loving, caring and attentive father. In addition, the Applicant lives with his mother, X’s grandmother, so X has the opportunity to deepen his relationship with her when he has parenting time with the Applicant.
[39] Each spouse’s willingness to support the relationship with the other spouse: The Applicant supports the Respondent’s relationship. The Respondent expressly does not support the Applicant’s relationship. It is clear this is due to her view that the Applicant poses a danger to X.
[40] The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained: It is not possible for me to specifically ascertain X’s views and preferences. I take into account the evidence that he is happy and enjoys his time with both parents. The OCL report states that “Xander appeared to enjoy his time with his father and mother. It was apparent in the observation visits, reports from private access supervisors, and through conversations with Mr. Kohli and Ms. Thom that Xander is loved and well cared for by his parents. The observation visits and information obtained regarding supervised access suggest that Xander is developing a positive, trusting relationship with both parents.”
[41] Although the Respondent raises concerns about X biting his hands, I have no evidence to tie this to parenting time. However, I accept the Respondent’s evidence that X is more anxious and clingy with her, which would not be surprising after increased separation from his mother, with whom he has spent most of his time since the parties’ separation.
[42] The child’s cultural, linguistic, religious and spiritual upbringing and heritage: The Applicant has highlighted in his material that he exposes X to the food and other culture of his Indian heritage.
[43] The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child: Neither party suggests that the other party is unable to care for X, except for the Respondent’s serious concerns about family violence. Although the Applicant notes that the Respondent does not receive treatment for her anxiety and OCD, he does not suggest that she is unable to care for X. Further, the OCL report finds that the Respondent’s health does not interfere with her ability to parent X. A medical assessment from June 2020 found that the Respondent’s OCD was in remission and medication was not indicated.
[44] Any family violence: This factor must be considered carefully in the circumstances of this case. The Respondent’s allegations are that the violence against her was serious and occurred repeatedly. However, even if the full details of her evidence are accepted, which I am not able to do entirely in the circumstances of this interim motion, the evidence does not support an inability of the parents to meet X’s needs in a shared parenting scenario. I am not aware of any evidence that any violence has ever been directed toward X. While he was exposed to violence during the parties’ cohabitation, the evidence does not support that he has been exposed to any violence since separation over a year and a half ago. Further, while I understand that the Respondent feared for her safety while the parties cohabited, the evidence does not suggest that she fears for it now.
[45] Taking all of these factors into account, I consider it to be in X’s best interests to increase the Applicant’s parenting time to include overnight visits. I do not consider it in his best interests at this time to move quickly to a 50/50 schedule. This family has experienced serious conflict and instability. I therefore put a high emphasis in this case on maintaining a level of stability for X and not changing his schedule entirely, particularly given that the changes appear to be causing him at least some anxiety. That said, the evidence does not support any serious concerns arising from the Applicant’s parenting time and all the Applicant’s evidence is that X is thriving with the increased time.
[46] The Respondent submits that the Applicant’s parenting time should not be increased until he has undergone a mental health assessment. At the last case conference, the Applicant did agree to undergo such an assessment. However, Kraft, J.’s order scheduling this motion was not contingent on such an assessment. Moreover, in attempting to schedule that assessment, the Respondent insisted on a single assessor and refused to provide a second name when the Respondent raised a conflict related to the proposed assessor.
[47] I have reviewed the Respondent’s 14B motion filed after the hearing of this motion and the Applicant’s response to that motion. The Respondent’s submissions were not properly dealt with by a 14B motion. That said, I am of the view that the Applicant should have agreed to the Respondent contacting me to alert me to an error she thought I had made in my comments concerning Kraft J’s order. It turns out that by the time of receiving the 14B materials, I had already re-reviewed Kraft J.’s order. I agree that, to the extent my comments and questions at the hearing suggested I believed the Respondent was required to provide two proposed assessors to the Applicant, this was not correct. I do not believe it was improper for the Respondent to attempt to bring this to my attention and, therefore, I do not award costs of the 14B motion.
[48] Although the Respondent is correct that Kraft J. did not specifically state that each party needed to provide the other with two proposed assessors, the order does require the parties to agree on the assessors. In that context, I do not consider it reasonable for the Respondent to insist on a single assessor and to provide only one name. Therefore, I do not accept that the Applicant is responsible for any delay in the assessment.
[49] More importantly, while the Applicant has agreed to undergo a mental health assessment, the record before me and before Nishikawa, J. already included a thorough and detailed OCL report, that took into account information from various third parties, including the Applicant’s therapist and over 150 supervision reports.
[50] I consider the cases cited by the Respondent to be distinguishable. For example, in Baran v. Baran, 2019 ONSC 2653, which was specifically cited during oral argument, the court did not have before it evidence from extensive supervised visits and a thorough OCL report finding that the father had a warm and positive relationship and was able to care for the child, nor evidence from a therapist who stated she did not have concerns the father would act out violently. This case is closer to S.S. v. R.S., 2021 ONSC 2137, in which overnight time was granted to the father where there had been prior violence. Indeed, in that case, there was evidence of family violence both during and after the marriage and the court specifically found that the father had engaged in corporal punishment against one of the children.
[51] Taking all of the factors into account, I consider it in X’s best interests to move to two overnights per week with the Applicant. This means that most of his time will remain with the Respondent, considering that she has been his primary caregiver and for the purposes of stability given his young age and the amount of conflict in the family. However, it will also allow the Applicant meaningful additional time and will continue to allow X’s relationship with his father to develop.
[52] I have reviewed the Applicant’s proposed stages 1 and 2 for increased parenting time. I have attempted to keep the proposed framework, while making changes to limit his parenting time to two overnights. I also have shortened the time on Thursday during stage 1 and I would order stage 1 to last for three weeks, to give more time for X to adjust to overnights with the Applicant. I would alter the Applicant’s proposed stage 2 to shorten the time away after one overnight, so that X will return from the second overnight the following day at noon. The schedule will remain at stage 2 for the purposes of this interim order. The new schedule will commence the week of May 31, 2021.
Costs
[53] At the hearing, the parties agreed that if they were not able to reach an agreement on costs, they would upload their Bills of Costs as well as any Offers to Settle on Caselines. I stated I would not review these documents until after the release of my decision. Following the release of these Reasons, I will review those documents and release an endorsement addressing costs.
Order
[54] Therefore, I order on an interim basis that the Applicant will have parenting time with X commencing May 31, 2021 as follows:
[55] Stage 1: May 31 to June 21, 2021:
a. Mondays from 9 am to Tuesdays at noon
b. Thursdays from noon to 7 pm
c. Saturdays from 9 am to 7 pm
[56] Stage 2: Commencing June 21
a. Mondays from 9 am to Tuesdays at 7 pm
b. Fridays from 9 am to Saturdays at noon
Date: March 27, 2021