Court File and Parties
COURT FILE NO.: FS-23-36450 DATE: 20230707 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Inoj Raveendran, Applicant AND: Nevetha Sabaratnam, Respondent
BEFORE: W.D. Black J.
COUNSEL: Andrea Kim, for the Applicant S. Lawrence Liquornik, for the Respondent
HEARD: July 4, 2023
Endorsement
Overview
1The relationship between the parties in this case has been volatile. There have been allegations of violence back and forth, and criminal charges laid by each party against the other.
2Allegations of family violence are, sadly, a common feature of family disputes.
3Where family violence is present, it can cause terrible damage not only to the parties directly involved, but it is well-known and well-documented that it can also have devastating long‑term effects on children of those parties. The court must be cautious when family violence is alleged.
4The issue to be determined on this urgent motion is whether, against the backdrop of volatility, and in circumstances in which the father’s recent parenting time with the two-year-old child of the marriage has been limited, his ongoing parenting time should be truncated, should be supervised by a third party, should not include overnight visits, and should only be gradually increased in the near term.
5The parties agree that, generally speaking, it is in the best interests of their child to have meaningful time with her father.
6However, Ms. Sabaratnam argues that the necessary caution in a context of alleged violence is all the more important at this early stage of this proceeding, inasmuch as the issue of parenting time has not yet been conferenced, and given the age of the child (two).
7I find that while a somewhat graduated parenting schedule is appropriate here, the evidence does not support the level of restriction urged by Ms. Sabaratnam, and that the child’s best interests are served by a reasonably expeditious path towards shared parenting time.
The Respondent’s Positions
8The respondent emphasizes two items in particular, which she says should lead to limited, supervised, and carefully controlled parenting time for the applicant. In my view, while both items require careful consideration, neither is shown, on the record before me, to justify the level of constraint the respondent urges.
The Respondent Says Recent Volatility Should Lead to Restriction of Parenting Time
9The first item relates to recent allegations of violence and criminal charges in relation to those events.
10The alleged violence involved two separate incidents.
11In the first incident, in August of 2020, the police were called to the couple’s home and found that Mr. Raveendran had suffered multiple injuries, in the nature of cuts and abrasions. The police noted those injuries, noted odd and volatile behaviour on the part of Ms. Sabaratnam, and charged her with assault. They did not charge Mr. Raveendran.
12Soon after Ms. Sabaratnam was charged, she learned that she was pregnant with the couple’s daughter. Mr. Raveendran implored the Crown to drop the charges against her in the circumstances, and the Crown did so, although only after insisting that Ms. Sabaratnam complete the PARS program. At that point the parties resumed cohabitating for a period of time.
13There was a further incident on February 4, 2021, somewhat similar in nature to the incident leading to the charges in August of 2020.
14There was no call to the police on February 4, 2021, but the next day Ms. Sabaratnam, who was seven months pregnant, went to the hospital with vaginal spotting. I do not believe there is any suggestion that the vaginal spotting related to the incident on February 4.
15However while the respondent was at hospital the medical staff noted bruises on her arms, and after querying Ms. Sabaratnam about the incident the day prior, called the police to investigate. This time, the police charged Mr. Raveendran with assault.
16The charge proceeded to trial before Justice Javed in the Ontario Court of Justice.
17In an extremely thorough decision, His Honour found that Ms. Sabaratnam, and not Mr. Raveendran, had initiated the incident by grabbing Mr. Raveendran’s shirt collar and pushing and pulling and ripping it. He found that the bruising on Ms. Sabaratnam was consistent with Mr. Raveendran defending himself by grabbing her arms, with minimal force, to attempt to stop her from continuing to pull at his shirt (and his neck).
18In the result, Javed J. acquitted Mr. Raveendran. His Honour found that Ms. Sabaratnam’s evidence “was incredible because it was inconsistent and implausible”. Javed J. appropriately reminded and cautioned himself to avoid myth-based reasoning, as do I, but ultimately found that Ms. Sabaratnam’s account was unreliable.
19I accept the submissions of counsel for Ms. Sabaratnam that in the context of a volatile relationship, and allegations of violence on both sides, generally I should be cautious not to purport to resolve the credibility issues on a paper record, and should leave the issues to be determined, as necessary, based on viva voce evidence and a fuller record down the road.
20However, in two separate incidents, the police (in the first incident), and then Javed J. (in the second), concluded that Ms. Sabaratnam was the aggressor, was the party initiating and perpetuating conflict, and did not accept her version of events. Javed J.’s detailed analysis sets this paper record apart from one merely containing allegations back and forth.
No Evidence of Risk to Child
21Even allowing for the caution required in considering the underlying allegations on the basis of a paper record, I cannot find evidence sufficient to cause me to substantially restrict Mr. Raveendran’s parenting time. Justice Javed, who had the benefit of hearing and seeing the parties testify, concluded that Mr. Raveendran was not the instigator, and acted in a fashion consistent with simply protecting himself (and with minimal force) from the assault by Ms. Sabaratnam. This conclusion echoed the conclusion by the investigating police officers in regard to the first incident.
22There is no evidence that would cause me to conclude that Mr. Raveendran’s parenting time will be a risk to the child or should otherwise be significantly restricted.
The Respondent Says Recent Lack of Contact Should Mean Very Gradual Increase of Parenting Time
23The respondent’s second main position is that the applicant has spent little time with the child of late, and that therefore a restricted and gradual reintroduction of parenting time is warranted.
24This preliminary observation about the recent reduction in the applicant’s parenting time is accurate but disingenuous.
25That is, at various points in the recent past, and in particular after Mr. Raveendran commenced a legal separation process, Ms. Sabaratnam has imposed additional conditions on Mr. Raveendran’s parenting time. These conditions have often been introduced at the last moment and after arrangements without such conditions had been agreed, making it increasingly difficult for Mr. Raveendran to exercise that parenting time.
26Ms. Sabaratnam’s position is that the additional conditions that she has admittedly imposed are a measured and appropriate response to the concerns caused by the volatile incidents leading to the criminal allegations and charges. However, by imposing conditions arising from the altercations that she herself initiated, Ms. Sabaratnam has unfairly and arbitrarily created the recent lack of contact that she cites as a reason to restrict Mr. Raveendran’s parenting time.
27I find that it is not fair or reasonable to attenuate Mr. Raveendran’s parenting time as a consequence of incidents in which he has been exonerated (and in which Ms. Sabaratnam has been found to be responsible for initiating and perpetuating the volatility).
The Applicant’s Conduct During Parenting Time Has Been Appropriate
28Equally importantly, both before and since the incidents leading to criminal charges, Ms. Sabaratnam has relied on Mr. Raveendran to parent their child extensively, including for long periods of time (during one stretch for nine hours a day three-to-four times a week) on his own.
29There is also evidence in the record that the child knows her father, recognizes him in photographs, and asks after him when she has not seen him for a while. There is no suggestion that the child fears her father, and no evidence suggesting any risk of harm to the child when she has been in her father’s care, including the long stretches while she has been in his care alone.
30Correspondence exchanged between the parties during times when the child has been in the sole care of Mr. Raveendran, some of which is in this record, also tends to show that in that circumstance, Mr. Raveendran is thoughtful and considerate in his parenting of the child. Again, there is no suggestion of any untoward or dangerous conduct on his part.
31Ms. Sabaratnam’s argument also relies on case law that says that where a child is very young, and there have been significant periods of estrangement, particularly when there have been allegations of abuse, parenting time for the estranged parent should be gradual, for short periods of time, and potentially supervised by a third party.
32On that issue, and in relation to assessing the significance of the backdrop of alleged family violence, Mr. Raveendran included in his materials a recent decision of Kristjanson J., in which Her Honour was dealing with many of the same issues arising in the motion before me.
33Her Honour’s persuasive decision, which related to parenting time sought with a 17-month old child, included helpful perspective on the import of family violence and the (very young) age of the child. She noted that the “nature, seriousness and frequency of the family violence alleged is typical of many family court proceedings”, and that three of the numerous incidents of family violence alleged before her pre-dated the child’s birth, that the parties were now separated, and that because the parties no longer lived together and had minimal contact, the alleged family violence regarding the mother should not be an ongoing issue.
34I note that in that case, none of the allegations of violence had been tested in any viva voce hearing, let alone in a full criminal trial as in the case before me.
35In her conclusions, Kristjanson J. found that there was “no risk to AB experiencing physical, emotional, or psychological harm when he is being cared for by the father” that the family violence alleged would not “affect the ability and willingness of the father to care for and meet AB’s needs,” and that “AB should not be deprived of meaningful overnight and shared parenting time based on the evidence before [her].” (Sadiq v. Musa, 2023 ONSC 1811).
Conclusion: No Reason to Significantly Restrict Mr. Raveendran’s Parenting Time
36In all of the circumstances I am persuaded that there is likewise no basis to conclude that there will be risk to the child here associated with her father’s parenting time with her, and that neither the recent lack of contact nor the child’s age should serve to significantly reduce or restrict that parenting time.
Competing Version of Approach to Parenting Time
Ms. Sabaratnam’s Proposal
37Ms. Sabaratnam’s position was that, although she agreed that Mr. Raveendran should have some parenting time, in the near term all parenting time should be at a third-party supervisory site (the respondent suggested the Brayden facility), that the parenting time should initially be limited to two three-hour blocks per week for the first four weeks, and that Ms. Sabaratnam’s mother or sister-in-law would have to be present for the first couple of visits.
38In Ms. Sabaratnam’s proposed approach, assuming that the notes from the Brayden facility for the first four weeks did not raise concerns, then the twice-per-week visits would be expanded to four-hour blocks for another six weeks.
39After that six-week period, again assuming no issues, Ms. Sabaratnam would then suggest that a Sunday visit, from 9:30 a.m. until 5:00 p.m. be added for another eight weeks.
40Her plan, it should be noted, contemplates no overnight visits for any of the 18 weeks encompassed in the proposal. She explained that this initial 18-week plan is intended to get the parties safely to the point where the parenting issues can be addressed at a case conference.
41I find, given the absence of evidence of risk, that Ms. Sabaratnam’s plan is far too restrictive and gradual.
I Prefer Mr. Raveendran’s Plan
42I prefer, and order, Mr. Raveendran’s plan.
43That plan contemplates three-hour parenting visits for Mr. Raveendran on Mondays and Wednesdays, and Saturday visits from 10:00 a.m. until 7:00 p.m. for the first four weeks. For the next four weeks, the plan includes an overnight visit (from Friday at 4:00 p.m. until Saturday at 5:00 p.m.), increasing to additional overnights and alternate weekends until the child turns 2.5 years old, and then graduating to a full 2/2/3 schedule.
44Exchanges are to occur at a mutually agreed location between the parties’ residences, and Ms. Sabaratnam is to advise Mr. Raveendran in advance and in writing of the child’s current bedtime and routines so that he may incorporate these approaches.
45Mr. Raveendran’s proposal includes other related items, all of which appear reasonable and all of which I order.
Proviso: Order is Subject to Results
46My decision is of course subject to any evidence of any significant problems associated with and arising from Mr. Raveendran’s parenting time. In that unlikely event, either party may bring this matter back before the court.
47Mr. Raveendran, as the successful party here, is notionally entitled to his costs. However, with that observation, I leave the issue of costs to be determined by the judge hearing the initial case conference in this matter, or the judge hearing any motion relating to parenting time before that initial case conference. This direction is intended to provide additional assurance that the parenting time will be without incident.
Miscellaneous Items
48Before concluding I should address a couple of stray items.
49First, I confirm that in reaching my decision, I considered the factors enumerated under section 16 of the Divorce Act (R.S.C. 1985) and in particular the factors concerning the best interests of the child and concerning family violence, in subsections 16(3) and 16(4) respectively.
50Second, in Mr. Raveendran’s materials, there was a video attached as an exhibit to his reply affidavit, apparently recording certain behaviour on the part of Ms. Sabaratnam that Mr. Raveendran suggests tends to corroborate allegations of similar inappropriate behaviour by Ms. Sabaratnam on other occasions.
51Ms. Sabaratnam objected to my taking that video into account in my deliberations, given the general discouragement in family law of the parties resorting to recording one another, particularly in the context of a motion, and given that the video was proffered in reply, so that Ms. Sabaratnam could not respond to it.
52While the video was apparently recorded with notice to her (i.e. Mr. Raveendran told her that he was recording her) such that the concerns in the case law about surreptitious recordings may not arise here, I have not taken the video into account in reaching my decision, and did not find it necessary to do so. In other words, my decision does not rely on the video. In addition to the concerns raised by Ms. Sabaratnam, I would find it difficult to reach conclusions about Ms. Sabaratnam’s conduct in one setting based on a recording of her in another.
53As such, while I have found for Mr. Raveendran here, my conclusions do not rely on that evidence.
W.D Black J.
Date: July 7, 2023