Court File and Parties
COURT FILE NO.: FS-21-101684 DATE: 2023 05 15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SOOD, Shayena AND: KUMAR, Sourabh
BEFORE: André J.
COUNSEL: G.J. Wise, for the Applicant B. Mignardi, for the Respondent
HEARD: April 24, 2023
Endorsement
André J.
1The Applicant, Shayena Sood, brings a motion for an order regarding parenting time of the Respondent, Sourabh Kumar, to R.K., the child of the marriage, who was born on August 10, 2019.
2The Respondent, Sourabh Kumar, also brings a motion for an order granting him increased parenting time with R.K. Ms. Sood is opposed to any dramatic increase to Mr. Kumar’s parenting time with R.K.
Background Facts
3The parties were married on September 1, 2011, and separated on or about January 19, 2021. R.K. was born on August 10, 2019 and currently resides with Ms. Sood.
4The parties had a troubled relationship with Ms. Sood accusing Mr. Kumar of constantly abusing her, both emotionally and physically. Ms. Sood contacted the police in 2021 and as a result, Mr. Kumar was charged with assaulting her. On January 14, 2022, the Crown withdrew the charges against Mr. Kumar.
5On January 21, 2021, Ms. Sood drew up a visitation schedule for Mr. Kumar permitting him to spend 13 hours weekly with R.K. with the promise of a review within 6 months; the promised review never occurred. This schedule persisted for 13 months during which Mr. Kumar spent parenting time with R.K. every Tuesday and Thursday from 3:00 p.m. to 7:15 p.m., and every Sunday from 11:00 a.m. to 6:15 p.m., with no overnight parenting time.
Court Involvement
6Mr. Kumar brought an urgent motion in February 2022 for an order granting him increased parenting time with R.K. Justice Fowler Byrne found no urgency particularly in light of a case conference scheduled for April 29, 2022.
7On April 29, 2022, Justice Petersen noted in her endorsement that:
The parties shall attempt to reach agreement on a new interim parenting plan that incorporates graduated increases in the father’s parenting time. If no agreement is reached by May 16, 2022, the father has leave to bring a parenting time motion with notice, to be scheduled on an emergency basis thereafter.
8The parties opted to settle their outstanding issues through mediation. They engaged in that process between September and October 2022. They succeeded in resolving issues relating to property and support. However, Ms. Sood remained opposed to Mr. Kumar having overnight parenting time.
Position of the Parties
Ms. Sood’s Position
9Ms. Sood seeks an incremental increase in Mr. Kumar’s parenting time with R.K. Her counsel suggests that in addition to the one overnight parenting time period that Mr. Kumar has, there should be an increase in overnight parenting time in August 2023 given the tender age of R.K. and the limited contact Mr. Kumar has had with R.K. She also desires the parties to have joint counselling given their acrimonious relationship in the past.
Mr. Kumar’s Position
10Mr. Kumar’s counsel submits that parenting time should be increased immediately given Ms. Sood’s deliberate actions denying him parenting time with R.K. To do otherwise would be tantamount to rewarding Ms. Sood for denying him parenting time with R.K. He currently has R.K. for approximately 13 hours weekly including one overnight period weekly. It is in R.K.’s best interests for this parenting time schedule, unilaterally imposed by Ms. Sood, to be immediately increased.
Analysis
11Both parties concede that the paramount consideration in this motion remains R.K.’s best interests. I must seek to determine, based on all the circumstances, what would be in his best interests in terms of parenting time. Absent exceptional circumstances, such as physical violence or any threats to R.K.’s physical, emotional and psychological wellbeing, maximum contact with both parents would be more consonant with R.K.’s best interests than a schedule of parenting time that is unduly restrictive.
The Law
12The following sections of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.) (“the Act”) are helpful in determining the appropriate order to be made in this matter.
13Section 16(1) of the Act provides that 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.”
14Sections 16(2) to 16(4) of the Act set out the factors to be considered in determining the best interests of the child:
Primary consideration
(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.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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 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 cooperate, 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 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; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(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 a 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.
Application of the Law to the Facts
15Much of Ms. Sood’s objections about increased parenting time revolve around her allegations of a) past abuse, b) Mr. Kumar’s limited contact with R.K., and c) R.K.’s tender age.
16With respect to the allegation of past abuse, I note that s. 16(5) of the Act, cautions that in determing what is in the best interests 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.”
17There is some evidence in this hearing that Mr. Kumar has been abusive to Ms. Sood. Ms. Swati Sarkar, who worked as a babysitter for the parties between January 2020 and April 2020, deposed that Ms. Sood was a “loving and devoted mother”, while on occasion, Mr. Kumar acted quite aggressively towards her and R.K. On the other hand, Ms. Akesh Bharti, who has known Ms. Sood since 2015, has deposed in an affidavit dated March 20, 2023, that Mr. Kumar and R.K. “share a close bond with each other” and that she observed on certain occasions that R.K. was not happy leaving his father.
18Ms. Sood has deposed that Mr. Kumar physically and emotionally abused her during the course of their marriage. The fact that the Crown subsequently withdrew two assault charges against Mr. Kumar does not necessarily constitute proof that Ms. Sood fabricated the assault allegations against Mr. Kumar. According to licenced paralegal, Tiffany Dee, who attended “Zoom” court on January 14, 2022, the Crown withdrew the two charges against Mr. Kumar, “due to lack of public interest.”
19In any event, Mr. Kumar successfully completed a “Co-parenting Well Program” in May 2021 and a refresher course under the auspices of the Family Enhancement Centre in March 2023. Additionally, The Children’s Aid Society conducted an investigation into R.K.’s well-being and closed its files after failing to find any evidence of abuse.
20I am prepared to conclude that Ms. Sood has been a caring mother to R.K. and at least for some time during their marriage, has been verbally and, to some degree, physically abused by Mr. Kumar. However, that is not determinative of the issue of increased parenting time for Mr. Kumar. He has taken steps to address any parenting issues that he has. He was deprived overnight parenting to his son for at least 13 months. It is in R.K.’s best interests to be afforded ample time to establish a close and loving relationship with both parents. There is no pressing reason why he should be denied the opportunity to spend certain weekends with his father.
21Mr. Kumar can accommodate his son without any difficulty. He lives in a 3-bedroom home in Milton. He holds a senior position with a major financial institution. A former neighbour has also deposed that Mr. Kumar has a close relationship with R.K.
Conclusion
22Based on the above, I order that:
The Respondent, Sourabh Kumar, shall have parenting time with R.K., born on August 10, 2019, commencing Tuesday, May 23, 2023, in accordance with the following schedule:
a. Every Tuesday, pick up at the daycare at 3:00 p.m. and drop off the following day at the day care;
b. Every Thursday, pick up at the daycare at 3:00 p.m., and drop off at 7:15 p.m. on the same day at the day care; and
c. Commencing May 26, 2023, alternating Fridays, with pick up from the day care and drop off on the following Monday at the day care.
Neither party shall make disparaging remarks to R.K. about each other.
Both parties shall submit written submissions on costs, not exceeding 3 pages, within fifteen (15) days of today’s date.
André J. Date: May 15, 2023
COURT FILE NO.: FS-21-101684 DATE: 2023 05 15 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Shayena Sood - and - Sourabh Kumar ENDORSEMENT André J.
Released: May 15, 2023