COURT FILE NO.: FS-23-39713 DATE: 20240131 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Prateek Tewari, Applicant AND: Mamta Tewari, Respondent

BEFORE: Schabas J.

COUNSEL: William Francis, Counsel, for the Applicant Pamila Bhardwaj, Counsel, for the Respondent

HEARD: January 25, 2024

Endorsement

Introduction

[1] The parties married in India in 2017. It was, according to the Respondent (“Mamta”), an arranged marriage. Their first child, Advika, was born February 8, 2018. In 2019 the family moved to Calgary. They returned to India in 2021. In February 2022 they moved to Toronto where they continue to live. Their second child, Anaisha, was born in Toronto on March 17, 2023.

[2] The marriage has not been happy. There have been many conflicts between Mamta and the Applicant (“Prateek”), including physical conflict.

[3] On December 5, 2023, Mamta fled the family’s home in Etobicoke with Anaisha and has lived in a shelter since that time. Children’s Aid advised Prateek that Mamta was in a shelter but, as is its practice, has not disclosed the location of the shelter other than saying that it is in the east end of the City. On December 8, 2023, Mamta picked up Advika from her school and Advika stayed with her until December 12, 2023, when Prateek obtained, ex parte, an order to have Advika returned to him.

[4] On December 20, 2023, a temporary order was made by Rhinelander J., on consent and without prejudice, directing Mamta to surrender the children’s passports and birth certificates. Rhinelander J. made interim orders for parenting time until January 6, 2024 which provided, in summary, for Prateek to spend time with Anaisha several times for a few hours and for Mamta to have similar parenting time with Advika. Exchanges were to take place at a police station.

[5] On January 8, 2024, Kraft J. made a further temporary, without prejudice order, on consent, that Prateek would have parenting time with Anaisha on Mondays from 4:15PM to 7:15PM, that Mamta would have time with Advika on Wednesdays from 4:15PM to 7:15PM, and that on Saturdays from 1:30PM to 6:00PM Mamta would have Advika and Prateek would have Anaisha. Exchanges would continue to take place at a police station. Kraft J. also set January 25, 2024 for the return of Prateek’s motion, and imposed a schedule for the serving of affidavits and factums.

[6] On January 25, 2024, I heard the parties’ submissions regarding parenting time. Prateek and Mamta both filed lengthy affidavits together with supporting documents and audio recordings, among other things.

[7] Prateek seeks to have Advika remain in his care and for Anaisha to remain with Mamta, and that the parent with primary care make day-to-day decisions. He proposes the following parenting schedule:

Week 1 i. Monday 4:00PM to 7:00PM: Applicant Father shall have care of Anaisha and the Respondent Mother shall have care of Advika. ii. Wednesday 4:00PM to 7:00PM: Respondent Mother shall have care of Advika. iii. Saturday 11:00AM to 3:00PM: Applicant Father shall have care of Anaisha. iv. Saturday 3:00PM to Sunday 12:00PM: Respondent Mother shall have care of Advika.

Week 2 v. Monday 4:00PM to 7:00PM: Applicant Father shall have care of Anaisha. vi. Wednesday 4:00PM to 7:00PM: Respondent Mother shall have care of Advika. vii. Saturday 1:30PM to 6:00PM: Applicant Father shall have care of Anaisha and the Respondent Mother shall have care of Advika.

The Respondent shall have additional care of the child Advika on the following days which Advika does not have school from 9:30AM to 4:00PM: February 16; March 15; April 19; May 20; and June 7, 2024.

[8] Mamta seeks an order that both children reside primarily with her, and that she have decision-making authority. She proposes that Prateek have parenting time with the children follows:

Advika: • Week 1: Friday 4:00PM until Sunday at 6:00PM; • Week 2: Friday 4:00PM until Saturday at 3:00PM; • Every Wednesday from 4:00PM until 7:00PM.

Anaisha: • Every Wednesday from 4:00PM until 7:00PM; • Every Friday from 4:00PM to 7:00PM.

[9] The limited parenting time for Anaisha proposed by Mamta is due to the fact that she continues to breastfeed the child. When Anaisha is no longer breastfed, Mamta proposes that Prateek’s parenting time with Anaisha be the same as with Advika.

[10] The parties are in agreement that exchanges can take place at Keele Subway station, as proposed by Mamta.

Applicable Law

[11] The only consideration in making a parenting order under s. 16 of the Divorce Act, RSC 1985, c 3 (2nd Supp) is the best interests of the child. Subsection 16(3) sets out a non-exhaustive list of factors to be considered in determining the best interests of the child. These factors include:

(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.

[12] Subsection 16(2) directs that in considering those factors the court shall give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[13] Subsection 16(6) states that “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.” Subsection 16(5) prohibits consideration of past conduct “unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.”

[14] Subsection 16(5) directs that the following factors be taken into account in considering the impact of family violence under ss. (3)(j):

(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.

[15] It is well-accepted that the best interests of a child are usually furthered by having a loving relationship with both parents. Emphasis must be placed on the importance of bonding, attachment and stability in the lives of young children. Any limitations on parental access to their children, including supervised access, must be justified based on a risk of harm to the child’s physical and emotional well-being.

[16] On interim parenting motions, such as this one, the statu quo – which is the situation which existed prior to the separation - is an important factor. However, there is no presumptive rule in favour of the status quo; rather, as the test is always what is the best interests of the child, the Court must “carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements”: McPhail v. McPhail, 2018 ONSC 735, quoting Chappel J. in Batsinda v. Batsinda, 2013 ONSC 7869 at paras. 25-26.

Discussion and application of the evidence

[17] In this case there is competing affidavit evidence from Mamta and Prateek. Prateek asserts Mamta has been violent towards him and the children. He urges me to maintain the status quo and submits that Mamta’s “self help” in removing Advika from school and the home for several days in December demonstrates that she has acted contrary to Advika’s best interests. Prateek states that he has been the primary parent to Advika and therefore she should remain with him.

[18] Mamta, on the other hand, describes a history of violent, coercive and controlling behaviour by Prateek. She states that she has been the primary parent to both children, staying at home while Prateek worked, and that in the past year, since Advika started attending school, Prateek has taken steps to exclude Mamta from decision-making and involvement in Advika’s school and extra-curricular activities, as well as at home. Both parties state that Advika has been exposed to the conflict, each blaming the other.

[19] This is a motion for interim orders, and it is challenging to make findings of fact based on competing affidavit evidence. However, in considering the cogency of the evidence, and the supporting material which includes recordings of conflict between the parties, police notes when they have been called, correspondence from social workers who have been assisting Mamta and the details provided there, as well as notes from the Children’s Aid Society, I prefer the evidence of Mamta over Prateek.

Family Violence

[20] Mamta’s description of violence in India is compelling and was not disputed by Prateek. She ran away from him there as well. Although Mamta was charged by the Toronto Police with pushing Prateek in 2022, it was Mamta who called the police out of fear, when she was pregnant with Anaisha, and her explanation for why she did not report assaults by Prateek is credible. The charge was ultimately withdrawn after Mamta completed a one-year peace bond – a fact not mentioned by Prateek in his affidavit supporting the ex parte order in December, 2023.

[21] Mamta was referred to a social worker after complaining of abuse to her obstetrician while pregnant with Anaisha. The Children’s Aid Society and social workers at EarlyON and at LAMP began assisting her, including safety planning and providing her with bus tokens to go to programs. This was well before she left the home in December 2023.

[22] It was observed, consistent with Mamta’s complaints, that Mamta wore the same clothing every day because, as Mamta said, Prateek would not purchase clothing for her, or feminine hygiene products. She was denied a phone with a data plan (only obtaining one, it seems, with help from her parents in India). Mamta was not allowed to work or go out alone. Prateek did not give her a key to their apartment. He controlled money Mamta received from the Canada Revenue Agency; she was not permitted to have a bank account. Prateek put cameras in their apartment to monitor Mamta. He verbally abused and belittled Mamta in front of the children.

[23] For about the past eighteen months, Prateek has excluded Mamta from having any control over, and only limited involvement with, Advika. Prateek would take Advika to school and other activities and would only provide his contact information to the school and other institutions, not Mamta’s. This is effectively acknowledged by Prateek, as Prateek relies on his recent extensive involvement with Advika’s upbringing to support his position that Advika should reside with him. This may well be turning Advika against her mother and is not in the child’s best interests.

[24] Mamta’s evidence is that Prateek threatened to throw her out of the home and made other threats towards her in Advika’s presence. She ultimately fled the family home on December 5, 2023 when Prateek caused her to fear for her life, which is supported by a recorded conversation.

[25] In Armstrong v. Coupland, 2021 ONSC 8186, Chappel J. stated:

The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes. The examples of conduct that constitute family violence is expansive, but it is non-exhaustive. The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment. The specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognizes the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact that parent’s ability to meet the child’s physical and emotional needs.

[26] In my view, there is cogent and compelling evidence to support the conclusion that Prateek has engaged in physical and psychological abuse towards Mamta and has exposed Advika to that conduct. This has happened on several occasions and is supported by recordings and police notes. Prateek also engages in coercive and controlling behaviour towards his family, and to Mamta in particular. He has failed to provide Mamta with funds, or clothing, or resources. He controls all the money and has taken control of all of Advika’s activities to the exclusion of Mamta. He has caused Mamta to fear for her safety. All of this clearly falls within the definition of family violence as defined in s. 2 of the Divorce Act.

[27] Further, under. s. 16(4) of the Divorce Act, I must take into account that the violence is frequent and serious. There is a pattern of coercive and controlling behaviour. The exposure of the children to this violence raises concerns about emotional and psychological harm to the children. It has caused Mamta to fear for her safety. The existence of such violence raises serious concerns regarding the ability of Prateek to cooperate on issues affecting the children and to appropriately meet the needs of the children. Indeed, there is evidence even from Prateek about his own emotional instability and feelings of burnout. In my view, the family violence in this case supports an order that the primary residence of the children be with Mamta and that she have sole decision-making authority.

The “status quo”

[28] Prateek argues that the status quo should be maintained, noting that this is an interim parenting motion and that in the absence of evidence that the existing situation is harmful to the children the status quo should be maintained.

[29] Leaving aside the harmful situation described above, Prateek’s submission begs the question of what constitutes the status quo.

[30] The parties moved to their apartment in Etobicoke in October 2023, less than two months before Mamta left the home. Advika had been attending her school for just over one month on December 5, 2023. Mamta was a stay-at-home mother while Prateek worked full time. Prateek’s evidence that he has been responsible for all of Advika’s school and extra-curricular activities (skating, piano, ballet, and likely swimming going forward) and that he takes primary care of her at home too, must be assessed in the context of him excluding Mamta from Advika’s activities.

[31] In my view, the status quo prior to the separation was that Mamta provided primary care to the children while Prateek worked. Despite Prateek’s conduct, it is clear from the CAS reports that Advika is also bonded with her mother. Although Prateek relies on statements by Advika to the CAS that suggests she prefers to be with him, at her age and in the circumstances, those statements cannot be given much weight. Prateek should not benefit from his efforts to create a new status quo through coercive and controlling behaviour that has excluded Mamta from many aspects of Advika’s life and threatens to alienate Advika from her mother. In my view, to continue to have Advika in the primary care of Prateek will be harmful to Advika.

Other “best interests” factors

[32] There are other factors to consider in determining appropriate parenting orders in this case.

[33] The parties have two children, and it is desirable that the children remain primarily together. At the present time Prateek cannot have, nor does he seek, lengthy parenting time with Anaisha as she continues to breastfeed. The children are young and a significant separation at this time will affect bonding between the sisters and would not be in their best interests.

[34] Mamta is currently living in a shelter, and placing Advika with her will necessitate a change in schools and a change in her after school activities. However, the evidence before me is that the shelter can accommodate Advika with her mother and sister, and Mamta is on an urgent priority list for social housing. It is clear that several agencies and social workers are assisting Mamta and her family. A change in school is unfortunate, and another change may be required when Mamta leaves the shelter, but Advika is still very young – she is in kindergarten – and has only been at her current school for a few months. Further, other after-school activities will be available to her, and it is also open to Prateek to continue to take her to some activities during his parenting time.

[35] In assessing the best interests of children, the primary consideration is the physical and emotional safety of the children. Applying all the relevant factors in s. 16(3) of the Divorce Act, and in particular the age, stage and needs of the children, their relationships with both parents and with one another, the willingness (or not) of each spouse to support the development and maintenance of a relationship with the other spouse, the history of care of each child and their willingness and ability to care for and meet the needs of the children, the willingness (or not) of each spouse to communicate and cooperate with each other on matters affecting the children, and the impact of family violence, all favour placing both children in the primary care of Mamta and granting her decision-making authority.

The “self help” issue

[36] Prateek submits, nevertheless, that Mamta’s actions in taking Advika out of school and away from the family home in December constituted inappropriate self-help and was not in the best interests of the Advika. It is true that self-help measures are not to be condoned and can raise questions about the parenting skills of the party that engages in such conduct. Here, however, the so-called self-help must be considered in the context of Mamta’s actions and in particular the family violence from which she was fleeing. She did not breach any court order in removing Advika from school and from Prateek’s care, nor did her conduct upset a lengthy status quo arrangement; rather, her actions were driven by the concerns I have addressed above and Mamta’s concern for the emotional, physical and psychological well-being of Advika. Accordingly, I place no weight on this submission by Prateek.

Terms of the parenting order

[37] The competing proposed parenting orders are also insightful into the positions of the parties.

[38] Prateek seeks very little time with Anaisha and he proposes very little time for Mamta to spend with Advika – including just one overnight every two weeks. This is consistent with Prateek’s conduct excluding Mamta from Advika’s life. His proposal is not consistent with, nor does it promote, a strong and loving bond between the children and both parents and does not further the best interests of the children. Indeed, his proposal, providing so little time for Advika to see her mother, suggests that Prateek is not interested in cooperating on parenting and that he lacks insight into his own harmful conduct.

[39] Mamta proposes that Prateek have Advika for three nights out of each fourteen nights, on a two-week schedule, and while parenting time with Anaisha is limited, Mamta proposes that Prateek have the same time with her as he has with Advika once Anaisha stops being breastfed.

[40] Mamta’s proposal is not ideal either, as three nights out of fourteen is not a large amount of time for the children to be with their father. However, there are concerns about Prateek’s conduct which need to be addressed. As Karakatsanis J. observed in Barendregt v. Grebliunas, 2022 SCC 22 at para. 136, while “maximum contact” with both parents is preferred, all parenting time decisions must be made in the best interests of the child. Justice Karakatsanis also noted at para. 143:

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. 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.

[41] In addition to Prateek needing to gain insight into his conduct and how it affects his children, the parties currently live far apart in the City, making weekday parenting time challenging. Hopefully, some of these challenges can be addressed in the next few months as the parties adjust to their new circumstances. A case conference has ben scheduled for June 26, 2024, at which time any desired changes can be raised and, hopefully, agreed upon.

[42] There was no motion for spousal or child support before me; however, financial statements have been provided and it is clear that Prateek is obligated to provide support. If support cannot be agreed upon, I grant leave to Mamta to bring motions for child and spousal support. Alternatively, or in addition, support issues can be raised at the case conference.

[43] Further, although the children’s passports should remain with the Court, other government issued identification for the children, such as birth certificates and health cards, should be provided to Mamta as the parent with primary care and decision-making authority.

[44] In conclusion, I make the following interim parenting order:

(a) Advika and Anaisha shall reside primarily with Mamta;

(b) Mamta shall have decision-making authority for both children;

(c) Prateek shall have parenting time with the children follows:

Advika: • Week 1: Friday 4:00PM until Sunday at 6:00PM; • Week 2: Friday 4:00 pm until Saturday at 3:00PM; • Every Wednesday from 4:00 pm until 7:00PM.

Anaisha: • Every Wednesday from 4:00PM until 7:00PM; • Every Friday from 4:00PM to 7:00PM;

(d) Exchanges of the children shall occur at Keele Subway Station;

(e) Neither parent shall be allowed to leave Ontario with the children without the consent of the other parent or a court order. The children’s passports shall remain in the possession of the Court, but other government-issued identification shall be provided to Mamta; and

(f) Neither parent shall disparage or speak negatively about the other parent in the presence of the children.

Paul B. Schabas J. Date: January 31, 2024