Reasons on Long Motions

Court File No.: FC-24-60216
Date: 2025/03/13
Ontario Superior Court of Justice
Between:
Swati Kaushik, Applicant
and
Shivam Sabhlok, Respondent

Justin Lee, Counsel for the Applicant
Rupa Murthi, Counsel for the Respondent
Heard: March 5, 2025
The Honourable Justice J. Breithaupt Smith

Background

1. For brevity, I refer to the Applicant as “Mother” and the Respondent as “Father.” In order to minimize the impact of this decision upon the parties’ children, I have chosen the pseudonyms “Sara” for their older child, age 9, and “Sam” for their younger child, age 2. They were married in India on October 28, 2012. Father moved to Ontario in 2019; Mother joined Father with Sara in 2020 and Sam was born here in 2022.

2. Mother commenced this litigation by means of a motion brought without notice on an urgent basis. The motion came before me on September 18, 2024. On the basis of the evidence before the court at that time, I issued a restraining order against Father and authorized Mother to travel with the children to stay temporarily with her sister in New Jersey until January 31, 2025. I found a situation of urgency or hardship and that the children were habitually resident in Ontario. I granted Mother sole decision-making responsibility and primary residence of the children on a without prejudice basis. Certain other procedural relief was also addressed.

3. Father brought a cross-motion following receipt of my endorsement and, on October 18, 2024, Justice Gibson authorized it to proceed on an “expedited” basis. Both motions came before Justice Piccoli on October 31, 2024, but the materials were in a state of disarray such that Her Honour set out timelines for their correction and filing. Her Honour made best use of the court’s time by holding a case conference in which judicial opinions were given. Consequently, the issue of “urgency” under Rule 14(4.3) is no longer live. Further, as all materials have been served well in advance of today’s hearing, the relief sought at paragraphs 1–4 of Mother’s Amended Notice of Motion are moot.

4. As my endorsement authorized Mother to remain with the children in New Jersey until January 31, 2025, Justice Piccoli extended that date to March 31, 2025 in anticipation of this hearing.

5. Note that this matter is also on the trial list for the three-week sittings commencing June 9, 2025, the Trial Management Conference having been held before Justice Piccoli on January 23, 2025. Ten days are anticipated for trial.

Scope and Materials

6. Each party has a motion before the Court today; combined they seek relief on the following issues:

   a. Redaction of Mother’s Address: Mother seeks to have her address listed as “c/o counsel” on the pleadings; Father does not object to this request.

   b. Decision-making for the children: Mother seeks sole responsibility whilst Father’s Notice of Motion is silent on this point, although he argues that Mother has not been responsible in the exercise of temporary, without prejudice decision-making responsibility.

   c. Primary residence of the children: The parties agree that the children should remain primarily resident with Mother, however Father asks that the children be returned immediately to Kitchener to live in the matrimonial home whilst Mother seeks to remain in New Jersey with maternal family until August 31, 2025.

   d. In Person Parenting Time between Father and the children: Mother proposes that the children have unsupervised visits with Father every weekend; such visits would alternate between Ontario and New Jersey, and she would pay all costs associated with the visits in Ontario. Visits in Waterloo Region would take place on alternate Saturdays for up to twelve hours; visits in New Jersey could take place from Saturday mornings overnight to Sunday afternoons, depending upon Father’s travel schedule. Father proposes a graduated increase in parenting time, which would start with alternate weekends, not overnight, on each of Saturday and Sunday for ten hours, and would transition to full alternate weekends in May. He also seeks Wednesday evening visits in each week. This parenting time proposal from Father would be the same whether Mother is obligated to return to Ontario or not.

   e. Virtual Parenting Time between Father and the children: In addition to her biweekly in-person proposal, Mother suggests virtual visits on Wednesdays and Sundays in each week from 7:30–8:00 p.m.

   f. School enrolment: Mother seeks to continue Sara’s studies at the school located in the catchment area where she is living in New Jersey whilst Father asks that Sara be returned to school in Kitchener.

   g. Restraining Order: Mother asks that it continue while Father seeks to have it rescinded.

   h. Exclusive Possession: The parties agree that, if Mother is required to return to Ontario with the children, she shall have exclusive possession of the matrimonial home and its contents until further order of the court.

   i. Non-Dissipation Order: Mother seeks to preclude Father from depleting any property under his control; Father disputes the need for any such order.

   j. Costs: Each party claims costs of both motions, dependent upon success. At the outset of argument on the prior return date of January 14, 2025, I asked counsel to reach an agreement as to quantum and was advised that the successful party would receive $10,000.

7. In accordance with the Confirmations filed, the following materials were reviewed for the argument of the long motion:

   a. Mother’s Amended Notice of Motion dated October 28, 2024;
   b. Mother’s Affidavit dated September 16, 2024;
   c. Maternal Aunt’s Affidavit dated September 16, 2024;
   d. Mother’s Affidavit dated September 18, 2024;
   e. Mother’s Affidavit dated October 28, 2024;
   f. Mother’s Supplementary Affidavit dated November 12, 2024;
   g. Mother’s Form 35.1 and Form 35.1A Affidavits;
   h. Mother’s Updating Affidavit dated February 28, 2025;
   i. Father’s Notice of Motion dated October 17, 2024;
   j. Father’s Affidavit dated October 16, 2024;
   k. Father’s Affidavit dated October 30, 2024;
   l. Father’s Form 35.1 and Form 35.1A Affidavits;
   m. Father’s Supplementary Affidavit dated November 7, 2024;
   n. Father’s “Updated” Affidavit dated January 8, 2025;
   o. Father’s Updating Affidavit dated February 28, 2025;
   p. Father’s draft Order;
   q. Compendia;
   r. Transcripts from Questioning of each party on February 19, 2025;
   s. Updated Facta; and
   t. Affidavits of Service.

8. I would confirm that these motions are seeking temporary relief. The timing of the trial in this matter effectively means that I am being asked to determine the parenting plans for the balance of the 2024-2025 school year.

Evidence and Credibility

Uncontested Matters

9. Counsel confirmed at the hearing today that the following points, not otherwise found in the materials, are uncontested:

   a. Father cannot reside at the matrimonial home during his parenting time as his conditions of release require him to remain with his surety. Father cannot currently travel across the border.

   b. The parties have agreed to list the matrimonial home for sale. Thus, even if Father were to obtain a variation of his conditions of release allowing him to have parenting time at the matrimonial home, he would experience a change in housing shortly.

   c. Father is currently paying $1,789 monthly for the support of the two children on a voluntary basis. No court order exists in that regard at this time.

   d. Mother concedes that Father would have increased costs associated with exercising his parenting time in New Jersey in accordance with section 10(2)(b) of the Federal Child Support Guidelines. She further agrees that Father should be able to deduct reasonable travel costs from child support as a result.

   e. Father has no family in Ontario. His surety is an acquaintance about whom there is no evidence (this person is not listed as someone with whom he resides on Father’s Form 35.1 Affidavit).

   f. Mother is in the United States on a visitor’s visa that expires on August 31, 2025. She works remotely for a Canadian company and has no employment or long-term residency prospects in the United States.

Preliminary Issue – Cross-examination & Questioning

10. There was some confusion regarding cross-examination on the Affidavits filed. When the parties were before Justice Piccoli for what became an urgent case conference, they agreed that there would be no cross-examinations. Later, Justice Parayeski declared in his Endorsement on November 28, 2024: “The issues presented in this motion are of such significance, cause and complexity that they cannot be decided on the basis of diametrically opposed affidavits, upon which not even questioning has taken place.” His Honour adjourned the long motions, writing: “It is contemplated that there will be viva voce evidence led and cross examined upon, obviously at the discretion of the judge hearing the motion.”

11. One of the central issues alleged in this matter is family violence. Father’s Affidavits rely upon a blanket denial of all allegations. Mother attests that she and the children are too traumatized to return to reside in the matrimonial home because of the abuse.

12. In submissions on January 14, 2025, Ms. Murthi for Father noted that the criminal proceeding is ongoing and cited the advice of Father’s criminal counsel that cross-examination under oath could be problematic. Mr. Lee for Mother advised that he had prepared for the hearing on the presumption that viva voce cross-examination would be taking place and that a late denial of Mother’s request to cross-examine Father would be unfair. Detailed discussions were held regarding the potential impact of cross-examination under oath upon Father’s ongoing criminal proceeding. The option of conducting out-of-court examinations pursuant to a Summons, rather than receiving in-court viva voce evidence, was canvassed.

13. With the benefit of consultation with Father’s criminal counsel, it became apparent that Father’s testimony given in the Family Court context could be used only to impeach any testimony that he might give in the criminal proceeding. This is consistent with Family Law Rule 20(24)(c). Section 5(2) of the Canada Evidence Act prohibits the use of “answers” (i.e. evidence) in subsequent criminal proceedings against the witness making the statement. Testimony given in the context of a Summons for Questioning or at a family trial would certainly qualify as exempt from self-incrimination in the criminal context, and therefore Father can be fully and properly cross-examined without risk.

14. With this in mind, the first hearing date before me was adjourned and the parties conducted questioning on the affidavits on February 19, 2025. Updating affidavits and Compendia were served, filed and uploaded to Case Center. The Court was provided with the link to the electronic transcripts of questioning, and I read both transcripts in their entirety. No cross-examination was conducted at the hearing.

Mother’s Evidence

15. Mother attests that she was the victim of physical, emotional, and financial abuse, including coercive control, at Father’s hands. She recounts incidents where Father:

a. screamed at her and at her mother, including in the children’s presence;
b. struck her in the face;
c. threw objects at her, including while she was holding Sam;
d. stabbed her with a sharp object;
e. controlled her financially;
f. isolated her, prohibited her from having contact with her sister and sent abusive emails from her account to her contacts;
g. drove erratically and recklessly with a view to frightening or injuring her;
h. involved the children directly by asking them whether he should “send Mummy away from this house;”
i. threatened to kill her, her family members and himself; and
j. threatened to take the children from her.

16. She attests that she is isolated in Kitchener, that most of her family remains in India and that her closest relative is her sister, Chhavi Kaushik, who is a medical doctor practising in New Jersey. She says that Father has intentionally limited her contact with her family and has become enraged when he catches her communicating with them. Mother says that Father monitors her whereabouts, her cellphone use (including emails) and her bank accounts. She says that he manages the passwords to all of her private accounts and has limited her access to her bank accounts. In July of 2024, he impersonated her in emails sent to lawyers dealing with her father’s estate and harassed her mother during the estate distribution process.

17. Mother attests specifically that, as of September 2024, Father’s threats had increased to the point where they were taking place “almost daily.” Overall, her evidence suggests that his abusive behaviors were escalating. On each of September 10th and September 11th, Mother alleges that father attempted to drive away rapidly while she was leaning into the vehicle to buckle the children into their seats. Mother’s fear of Father’s actions increased such that she asked her sister to come to Kitchener to be with her.

18. Mother attests that on the night of September 12, 2024, after her sister had driven from New Jersey, Father returned home around 6:00 p.m. and, angry that Chhavi was present, left again with a bag of clothes. He returned around 12:45 a.m. when the household was sleeping, enraged, and demanding that Chhavi leave. She did so. Mother attests that Father then began screaming and assaulting her, pulling her hair and shaking her head, twisting her forearm, and punching her in the shoulder. He threatened to take both children to India and demanded that Sara choose between her parents. Three hours later, police arrived and arrested Father.

19. Mother does not have a driver’s license. She does not have unmonitored access to her own bank accounts. She does not know what notifications may be connected to her banking and communication accounts. She fears for her life and the lives of the children. She has nowhere to live other than the matrimonial home and does not trust that Father would comply with any no-contact order. As a result of the police delay on September 12–13, 2024, she writes: “I have no confidence that I can rely on the authorities to adequately protect my children and me.”

20. Mother attests that the climate at her sister’s home in New Jersey is of great benefit to herself and to both children. Sara has settled into school and activities there. She pleads with the court for her own physical safety and mental well-being, which impact upon her ability to provide a stable and nurturing environment for the children. She says that a return to the matrimonial home as sought by Father would not be safe for her physically or mentally. Although Sara does not have immediate access to health care in the United States, both Chhavi and her husband are medical doctors.

21. Mother asserts that she has always been the children’s exclusive caregiver and that Father has had no experience in providing day-to-day care for the children, let alone addressing illness or other issues.

22. She proposes ongoing telephone and/or video calls twice weekly in addition to unsupervised visits in Waterloo Region on alternate weekends for up to twelve hours per session. She undertakes to provide all transportation for the children between New Jersey and Ontario. She also suggests that Father come to New Jersey in the opposing alternate weekends to have overnight visits with the children (Saturday morning to Sunday evening) there. She asserts that she is alive to the importance of maintaining a healthy bond between Father and the children.

23. During the questioning (cross-examination) on her Affidavits, Mother admitted that Father had never physically harmed the children and confirmed that she does not believe that he would do so. She confirmed that, prior to September 12–13, 2024, there had been no calls to police or child protection services. She admitted that “it didn’t occur” to her to tell Father that she had enrolled Sara in school in New Jersey. She disagreed with the suggestion that Father cared for the children while she was working, and instead testified that she was able to work on the second job from home after she had put the children to bed. She agreed that Father would cook occasionally for the family, usually on weekends.

24. In response to Father’s assertion that $200,000 was in an account in her name, she said [sic]:

I didn’t know, he was managing all the finances, I just found out the apps which were installed in my phone, when I received it after his arrest, and I just tried to get hold of the - because everything was linked and he set up the passwords, so everything was linked with his number, so I called all the banks, the apps ah for those banks, ah I just called them and told them the situation and they asked - I mean they gave me access, some word like biometric enabled, so I could enter those apps. Ah but, yeah, that's how I knew that.

25. As it turned out, Mother did have full access to the banking information through the apps installed on her cellphone. She could access the accounts using biometrics (i.e. finger- or face-print), although she was unaware of this until recently. It is curious that Mother, as a software engineer, would not have investigated this possibility. It certainly would be strange for Father to abuse Mother financially by placing significant resources into her sole name. However, Mother confirmed that Father kept her bank and credit cards in his wallet and that she had to ask him before making any purchases. Her bank and credit cards were returned to her by police following Father’s arrest.

26. I am concerned about Mother’s admission that she had no plan to tell Father about the enrolment of the children in school or daycare in New Jersey. I am also hesitant on the question of financial abuse. The evidence before this court regarding that allegation is too contradictory to support a finding. Otherwise, Mother’s evidence generally stood firm through her questioning.

Father’s Evidence

27. Father denies any form of family violence. He denies controlling any aspect of Mother’s life and asserts that he supported her “in all her endeavours.” He says that arguments took place, “but we have always reflected upon it, talked it out with each other and moved on.” He denies controlling Mother’s finances and states that Mother removed $32,000 from their joint account, along with jewellery and cash, when she left the matrimonial home on September 16, 2024. In addition, he points to the $200,000 in liquidity to which Mother has access (in the form of her own savings account that he opened and managed) in defence of the allegation of financial abuse.

28. He states that Mother never had her own cellphone and was using his device for personal chats. He denies engaging in self-harm as a form of intimidation and states that the photograph included in Mother’s materials depicts injuries he sustained falling off a ladder in the garage.

29. He attests that he was involved in Sara’s life in India such that he went to all appointments for the child and took her to temple, parks and dance classes. He states that, here in Kitchener, he would be alone in a caregiving role to both children after the end of his workday as Mother was working two jobs. He asserts that Mother could readily walk between the matrimonial home and Sara’s school (where Sam attended daycare) or the Huron Community Centre (where Sara has attended many activities in the past). He notes that Mother has an Indian driver’s license and could obtain her qualification here in Ontario upon completing the necessary exams. He alleges that Mother is used to the affluent lifestyle that she is enjoying in New Jersey, which is closer to their experience in India than the living situation in Kitchener; he seems to suggest that this is a significant motivating factor for her.

30. During questioning, Father was cagey and evasive, sometimes almost argumentative. Despite having been clearly advised that his responses could not be used to incriminate him in the criminal case, he refused to answer direct questions about the events of September 12–13, 2024. He eventually admitted that he was “emotional” and that he was unpleasantly surprised at the presence of his sister-in-law in the home on September 12th. He admitted that he “was not calm and controlled” when he returned to the home at approximately 1:00 a.m. on September 13th. He confirmed that the parties had what he called an argument, but at the same time denied raising his voice, saying: “I don’t remember because it is very subjective, like I’m talking here, so you think that my voice is loud, so I was in my normal tone.” He then waffled on that position, saying: “During the argument we might have changed the tone…” He reluctantly admitted that Sara was awakened by the argument but then deflected the reason, saying that it was in fact Sam’s “mumbling, crying or asking for the feed” that woke her up. He claimed that Sara never cries as a result of any contact with him, and that she only cries when disciplined by Mother.

31. I pause here to note that, contrary to submissions by Mother’s counsel, I do not draw an adverse inference against Father for his self-enrolment in anger management and positive co-parenting courses. It is imperative that individuals are encouraged to engage therapeutically, and I will not hold his participation in such courses against Father.

32. Having said this, I conclude based on the entirety of Father’s evidence that he is extremely hesitant to admit to any wrongdoing of any kind and that he has not demonstrated any insight into family violence in this matter. Simply stated, I disbelieve his testimony regarding family violence, particularly during the month of September 2024, and I find that he is the perpetrator of family violence against Mother. Where there is a discrepancy, unless otherwise stated I prefer Mother’s evidence.

Sara’s Evidence

33. It is undisputed that Sara wrote a letter to Father, on or about August 1st, which read [sic]:

Dear papa, I love you as much as mama, you are my father, family, best friend, and I really want everyone to be happy. Not sad or angry. Please, just calm down. I know you are frustrated, mad, and sad, it's OK, I felt that way before. I know it's hard but it's going to be OK. Please, calm down, talk it out, and cheer up. Lots and lots of love, Sara.

34. Father does not have any specific recollection of this letter. He was questioned about it and confirmed that he does not believe that it was fabricated or that Sara was forced to write it. He dismissively indicated that he received many letters, notes and gifts from Sara, who is very expressive with her emotions. He denied any knowledge of a reason for the child to write such a letter, suggesting that it could have been as a result of a conflict between them over Sara’s wish to play with a particular toy or “some difference in opinion.”

35. It is clear to this Court that Sara wrote the letter for its stated purpose: to attempt to placate and calm Father after some kind of outburst wherein he was “frustrated, mad and sad.” Sara recognizes Father’s need to take a different approach (to “talk it out”). Not only does this prove the impact of Father’s volatile behaviours upon Sara, it is also suggestive of a possibility that Sara could take on responsibility for managing Father’s emotional state. That Father doesn’t even remember this letter, let alone have any insight into its significance, is worrisome.

Maternal Aunt’s Evidence

36. Chhavi Kaushik, Mother’s sister, swore an Affidavit in this proceeding in which she recounted the events of September 12–13, 2024. She witnessed Father’s rage (which appears to have been triggered by seeing her in the home) and his threat that if she didn’t leave “something really bad would happen.” She witnessed Father going through Mother’s cellphone and saw the effects of his control over it in disconnecting Mother from her family. She experienced a harrowing three-hour wait for police to respond. She observed her sister’s visible fear of Father. She described the safe harbour that she is able to provide to Mother and the children at her home in New Jersey. Although she is Mother’s sister, and therefore undoubtedly aligned with Mother, I accept her narrative of the events of September 12–13, 2024.

Law & Discussion

I. Parenting Issues

37. The parties were married and thus Sections 16.1 through 16.4 and 16.6 of the Divorce Act apply.

38. This is an interim relocation request by Mother arising in the context of allegations of serious and prolonged family violence. There are many parallels with the relatively recent Supreme Court of Canada decision in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 SCR 517. The following directions from Karakatsanis, J. writing for the almost-unanimous majority, are essential to the correct assessment of this matter (internal citations omitted):

[142] Since Gordon,[1] courts have increasingly recognized that any family violence or abuse may affect a child's welfare and should be considered in relocation decisions.

[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 behavioral problems throughout their lives… Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

[146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis… Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

[147] Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.

[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider [the factors set out at section 16.92(1) of the Divorce Act]:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

39. As in this matter, in Barendregt the mother sought to move a full day’s drive away from the matrimonial home. There was no question that such a move would drastically reduce the children’s day-to-day contact with their father. The mother submitted that the move would provide her with the benefit of housing support, childcare and significant emotional support in the context of extracting herself from a violent relationship of 8 years’ duration. The trial judge found that “the father had assaulted and emotionally traumatized the mother; and his conduct at trial was abusive, and profoundly offensive.” Only one instance of violence, “when the father likely assaulted the mother during an argument,” is referenced in the Supreme Court of Canada's decision.

40. Importantly, Justice Karakatsanis dealt squarely with the legislative tension between what was once known as the “maximum contact principle” and the assessment of the best interests of children who may be relocating to a distance from the left-behind parent. Whilst confirming that a decision must consider the potential negative impact of the loss of day-to-day contact with the left-behind parent, Her Honour wrote [emphasis in original]:

[164] First, the question before the trial judge was not how to best promote the parenting time factor; It was how to best promote the best interests of the children. These considerations are not synonymous. Nor are they necessarily mutually reinforcing. Courts should only give affect to the parenting time factor to the extent that it is in the best interest of the child.

41. Her Honour also affirmed that escaping from family violence and seeking the support of extended family members and/or a community of origin are “an important factor in relocation cases.”

42. As this is a request for a Temporary Order to remain in place until the earlier of the rendering of the trial decision or August 31, 2025, there are further considerations, described thus by Justice Wood at paragraph 9 of Costello v. Johnston:

a. where there is a genuine trial issue, a Court should be reluctant to disrupt the status quo,
b. even with a genuine trial issue, the move might be allowed if the moving parent’s position stood a strong possibility of success at trial,
c. the existence of compelling circumstances (such as a limited window of opportunity to explore the financial benefit to the family unit) may justify allowing the move.

Best Interests Factors

43. The issues of decision-making and parenting time are assessed in the context of the “best interests test,” with detailed factors set out in the prevailing legislation. In the interests of brevity, I will not recite each of the factors as set out in Sections 16.1 through 16.4 and 16.6 of the Divorce Act, but rather note my conclusions below, based upon the evidence and a global assessment of the best interests of these children. I note specifically that my findings at this interim stage are subject to future change based on more fulsome and detailed evidence that will be available to the trial judge.

a. Sara and Sam are at very different developmental stages. Sara’s needs for socialization, schooling and extra-curricular activities are well supported both in New Jersey and in Kitchener. Sam has access to day care in both locations.

b. Sara is closely bonded to both parents; her love for Father is clearly demonstrated in the (admittedly curated) notes from the parenting time supervisor. Sam too is reported as comfortable in Father’s care. In New Jersey, both children have the significant benefit of extended family; I find that Father controlled contact between Mother (and by extension the children) with maternal family from their home in Kitchener. It is uncontested that Father has no family in Ontario.

c. Mother confirms that the children need time with Father and supports a safe and positive relationship. She confirmed that she does not believe that he will intentionally harm them when they are in his care. Father makes no direct comment in his Affidavit about his support of Mother’s relationship with the children. Father makes much of Mother’s cancellation of a visit over the weekend of February 21–23, 2025, when serious winter storms wracked Ontario and Southern Québec. He further points to Mother’s failure to advise him of Sara’s school enrolment as demonstrative of her unilateral action to minimize his involvement.

d. Sara’s views have not been sought out, per se, however her understanding of Father’s emotional outbursts is evident in the letter that she wrote to him, which was entered into evidence in this matter.

e. Both parents have similar cultural backgrounds (although members of Mother’s family are vegetarian); no issue in this regard is raised.

f. While both parents indicate their willingness to meet the needs of the children, having regard to Father’s evidence under questioning, I do not believe that he has the ability to do so. From a practical perspective, Father cannot reside in the matrimonial home and is currently residing with a surety who is unknown to the children. There is no information available regarding that individual or regarding the children’s safety or well-being should they spend time at the residence of the Father’s surety on weekends. I will point out here that Father has been voluntarily paying child support of $1,789 monthly since October of 2024, which speaks to his willingness and ability to provide financially for the children.

g. I find that Mother has been the primary caregiver since the family arrived in Canada. I accept Mother’s evidence that, as the sole caregiver, she has always been responsible of the children’s needs. Father has shown a clear lack of insight into Sara’s emotional needs and he minimizes the disruption to both children caused by violence in the home.

h. Father has taken a number of courses associated with conflict and anger management. Unfortunately, during questioning he did not articulate any learning success in the coursework that he has undertaken – one gets the impression that he may have taken the courses in order to satisfy the courts rather than for true personal growth. However, as noted above, I do not draw a negative inference against Father as suggested by Mother’s counsel for undertaking the courses.

i. It is interesting to note that Father repeatedly accuses Mother of relying upon stereotypes, alleging that she is manipulating the Court by referring to pre-marital issues with a dowry. He recites his view that Mother is “a strong and independent woman” with a university education who worked 12-hour shifts in India in a position consistent with her career choices. Presumably, he is suggesting to the court that, as a result, Mother could not possibly be a survivor of family violence. Such a suggestion plays into stereotypes about family violence; for clarity, I do not accept any of this evidence as persuasive in assessing whether family violence did, or did not, take place.

j. At this point in time, the parties cannot co-parent due to the history of coercive control and family violence that I find to be prevalent in this matter. The timing and severity of the incidents, particularly the apparent escalation as of early September 2024, is concerning. The events of September 10th and 11th, where Mother alleges that Father twice drove their vehicle away rapidly whilst she was half-way inside it buckling the children into their seats is particularly disturbing – at best, it suggests a reckless disregard for Mother’s life. It is undisputed that the children were present on the night of September 12–13, 2024; Father’s suggestion that they were not disrupted by that night’s events is nonsensical. I find that the children were directly aware of, involved in```mdx

citation: "Kaushik v. Sabhlok, 2025 ONSC 1517" parties: "Swati Kaushik v. Shivam Sabhlok" party_moving: "Swati Kaushik" party_responding: "Shivam Sabhlok" court: "Ontario Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2025-03-13" date_heard: "2025-03-05" applicant:

• "Swati Kaushik" applicant_counsel:
• "Justin Lee" respondent:
• "Shivam Sabhlok" respondent_counsel:
• "Rupa Murthi" judge: "J. Breithaupt Smith" year: 2025 decision_number: 1517 file_number: "FC-24-60216" source: "https://www.canlii.org/en/on/onsc/doc/2025/2025onsc1517/2025onsc1517.html" cited_cases: legislation:
  • title: "Divorce Act, RSC 1985, c 3 (2nd Supp)" url: "https://laws-lois.justice.gc.ca/eng/acts/d-3.4/"
  • title: "Canada Evidence Act, RSC 1985, c C-5" url: "https://laws-lois.justice.gc.ca/eng/acts/C-5/"
  • title: "Federal Child Support Guidelines, SOR/97-175" url: "https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/" case_law:
  • title: "Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 SCR 517" url: "https://www.canlii.org/en/ca/scc/doc/2022/2022scc22/2022scc22.html"
  • title: "Costello v. Johnston" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii2088/2003canlii2088.html"
  • title: "Gordon v. Goertz, [1996] 2 SCR 27" url: "https://www.canlii.org/en/ca/scc/doc/1996/1996canlii191/1996canlii191.html" summary: > This decision addresses interim parenting arrangements and a temporary relocation request in the context of serious allegations of family violence. The court finds that the mother, Swati Kaushik, should retain sole decision-making responsibility and that the children should remain primarily in her care in New Jersey until trial or August 31, 2025. The court applies the Supreme Court’s guidance in Barendregt v. Grebliunas, emphasizing the impact of family violence on the best interests of the children and the appropriateness of temporary relocation in such circumstances. The restraining order is rescinded, and costs are awarded to the mother. interesting_citations_summary: > The decision is notable for its application of Barendregt v. Grebliunas, 2022 SCC 22, which clarifies the role of family violence in relocation and parenting decisions. The court also discusses the interplay between the “maximum contact principle” and the best interests of the child, and the use of the Canada Evidence Act to protect against self-incrimination in parallel criminal proceedings. keywords:
• Swati Kaushik
• Shivam Sabhlok
• Family violence
• Temporary relocation
• Parenting time
• Sole decision-making
• Best interests of the child
• Barendregt v. Grebliunas
• Divorce Act
• Ontario Superior Court of Justice areas_of_law:
• Family Law

Reasons on Long Motions

Court File No.: FC-24-60216
Date: 2025/03/13
Ontario Superior Court of Justice
Between:
Swati Kaushik, Applicant
and
Shivam Sabhlok, Respondent

Justin Lee, Counsel for the Applicant
Rupa Murthi, Counsel for the Respondent
Heard: March 5, 2025
The Honourable Justice J. Breithaupt Smith

Background

1. For brevity, I refer to the Applicant as “Mother” and the Respondent as “Father.” In order to minimize the impact of this decision upon the parties’ children, I have chosen the pseudonyms “Sara” for their older child, age 9, and “Sam” for their younger child, age 2. They were married in India on October 28, 2012. Father moved to Ontario in 2019; Mother joined Father with Sara in 2020 and Sam was born here in 2022.

2. Mother commenced this litigation by means of a motion brought without notice on an urgent basis. The motion came before me on September 18, 2024. On the basis of the evidence before the court at that time, I issued a restraining order against Father and authorized Mother to travel with the children to stay temporarily with her sister in New Jersey until January 31, 2025. I found a situation of urgency or hardship and that the children were habitually resident in Ontario. I granted Mother sole decision-making responsibility and primary residence of the children on a without prejudice basis. Certain other procedural relief was also addressed.

3. Father brought a cross-motion following receipt of my endorsement and, on October 18, 2024, Justice Gibson authorized it to proceed on an “expedited” basis. Both motions came before Justice Piccoli on October 31, 2024, but the materials were in a state of disarray such that Her Honour set out timelines for their correction and filing. Her Honour made best use of the court’s time by holding a case conference in which judicial opinions were given. Consequently, the issue of “urgency” under Rule 14(4.3) is no longer live. Further, as all materials have been served well in advance of today’s hearing, the relief sought at paragraphs 1–4 of Mother’s Amended Notice of Motion are moot.

4. As my endorsement authorized Mother to remain with the children in New Jersey until January 31, 2025, Justice Piccoli extended that date to March 31, 2025 in anticipation of this hearing.

5. Note that this matter is also on the trial list for the three-week sittings commencing June 9, 2025, the Trial Management Conference having been held before Justice Piccoli on January 23, 2025. Ten days are anticipated for trial.

Scope and Materials

6. Each party has a motion before the Court today; combined they seek relief on the following issues:

   a. Redaction of Mother’s Address: Mother seeks to have her address listed as “c/o counsel” on the pleadings; Father does not object to this request.

   b. Decision-making for the children: Mother seeks sole responsibility whilst Father’s Notice of Motion is silent on this point, although he argues that Mother has not been responsible in the exercise of temporary, without prejudice decision-making responsibility.

   c. Primary residence of the children: The parties agree that the children should remain primarily resident with Mother, however Father asks that the children be returned immediately to Kitchener to live in the matrimonial home whilst Mother seeks to remain in New Jersey with maternal family until August 31, 2025.

   d. In Person Parenting Time between Father and the children: Mother proposes that the children have unsupervised visits with Father every weekend; such visits would alternate between Ontario and New Jersey, and she would pay all costs associated with the visits in Ontario. Visits in Waterloo Region would take place on alternate Saturdays for up to twelve hours; visits in New Jersey could take place from Saturday mornings overnight to Sunday afternoons, depending upon Father’s travel schedule. Father proposes a graduated increase in parenting time, which would start with alternate weekends, not overnight, on each of Saturday and Sunday for ten hours, and would transition to full alternate weekends in May. He also seeks Wednesday evening visits in each week. This parenting time proposal from Father would be the same whether Mother is obligated to return to Ontario or not.

   e. Virtual Parenting Time between Father and the children: In addition to her biweekly in-person proposal, Mother suggests virtual visits on Wednesdays and Sundays in each week from 7:30–8:00 p.m.

   f. School enrolment: Mother seeks to continue Sara’s studies at the school located in the catchment area where she is living in New Jersey whilst Father asks that Sara be returned to school in Kitchener.

   g. Restraining Order: Mother asks that it continue while Father seeks to have it rescinded.

   h. Exclusive Possession: The parties agree that, if Mother is required to return to Ontario with the children, she shall have exclusive possession of the matrimonial home and its contents until further order of the court.

   i. Non-Dissipation Order: Mother seeks to preclude Father from depleting any property under his control; Father disputes the need for any such order.

   j. Costs: Each party claims costs of both motions, dependent upon success. At the outset of argument on the prior return date of January 14, 2025, I asked counsel to reach an agreement as to quantum and was advised that the successful party would receive $10,000.

7. In accordance with the Confirmations filed, the following materials were reviewed for the argument of the long motion:

   a. Mother’s Amended Notice of Motion dated October 28, 2024;
   b. Mother’s Affidavit dated September 16, 2024;
   c. Maternal Aunt’s Affidavit dated September 16, 2024;
   d. Mother’s Affidavit dated September 18, 2024;
   e. Mother’s Affidavit dated October 28, 2024;
   f. Mother’s Supplementary Affidavit dated November 12, 2024;
   g. Mother’s Form 35.1 and Form 35.1A Affidavits;
   h. Mother’s Updating Affidavit dated February 28, 2025;
   i. Father’s Notice of Motion dated October 17, 2024;
   j. Father’s Affidavit dated October 16, 2024;
   k. Father’s Affidavit dated October 30, 2024;
   l. Father’s Form 35.1 and Form 35.1A Affidavits;
   m. Father’s Supplementary Affidavit dated November 7, 2024;
   n. Father’s “Updated” Affidavit dated January 8, 2025;
   o. Father’s Updating Affidavit dated February 28, 2025;
   p. Father’s draft Order;
   q. Compendia;
   r. Transcripts from Questioning of each party on February 19, 2025;
   s. Updated Facta; and
   t. Affidavits of Service.

8. I would confirm that these motions are seeking temporary relief. The timing of the trial in this matter effectively means that I am being asked to determine the parenting plans for the balance of the 2024-2025 school year.

Evidence and Credibility

Uncontested Matters

9. Counsel confirmed at the hearing today that the following points, not otherwise found in the materials, are uncontested:

   a. Father cannot reside at the matrimonial home during his parenting time as his conditions of release require him to remain with his surety. Father cannot currently travel across the border.

   b. The parties have agreed to list the matrimonial home for sale. Thus, even if Father were to obtain a variation of his conditions of release allowing him to have parenting time at the matrimonial home, he would experience a change in housing shortly.

   c. Father is currently paying $1,789 monthly for the support of the two children on a voluntary basis. No court order exists in that regard at this time.

   d. Mother concedes that Father would have increased costs associated with exercising his parenting time in New Jersey in accordance with section 10(2)(b) of the Federal Child Support Guidelines. She further agrees that Father should be able to deduct reasonable travel costs from child support as a result.

   e. Father has no family in Ontario. His surety is an acquaintance about whom there is no evidence (this person is not listed as someone with whom he resides on Father’s Form 35.1 Affidavit).

   f. Mother is in the United States on a visitor’s visa that expires on August 31, 2025. She works remotely for a Canadian company and has no employment or long-term residency prospects in the United States.

Preliminary Issue – Cross-examination & Questioning

10. There was some confusion regarding cross-examination on the Affidavits filed. When the parties were before Justice Piccoli for what became an urgent case conference, they agreed that there would be no cross-examinations. Later, Justice Parayeski declared in his Endorsement on November 28, 2024: “The issues presented in this motion are of such significance, cause and complexity that they cannot be decided on the basis of diametrically opposed affidavits, upon which not even questioning has taken place.” His Honour adjourned the long motions, writing: “It is contemplated that there will be viva voce evidence led and cross examined upon, obviously at the discretion of the judge hearing the motion.”

11. One of the central issues alleged in this matter is family violence. Father’s Affidavits rely upon a blanket denial of all allegations. Mother attests that she and the children are too traumatized to return to reside in the matrimonial home because of the abuse.

12. In submissions on January 14, 2025, Ms. Murthi for Father noted that the criminal proceeding is ongoing and cited the advice of Father’s criminal counsel that cross-examination under oath could be problematic. Mr. Lee for Mother advised that he had prepared for the hearing on the presumption that viva voce cross-examination would be taking place and that a late denial of Mother’s request to cross-examine Father would be unfair. Detailed discussions were held regarding the potential impact of cross-examination under oath upon Father’s ongoing criminal proceeding. The option of conducting out-of-court examinations pursuant to a Summons, rather than receiving in-court viva voce evidence, was canvassed.

13. With the benefit of consultation with Father’s criminal counsel, it became apparent that Father’s testimony given in the Family Court context could be used only to impeach any testimony that he might give in the criminal proceeding. This is consistent with Family Law Rule 20(24)(c). Section 5(2) of the Canada Evidence Act prohibits the use of “answers” (i.e. evidence) in subsequent criminal proceedings against the witness making the statement. Testimony given in the context of a Summons for Questioning or at a family trial would certainly qualify as exempt from self-incrimination in the criminal context, and therefore Father can be fully and properly cross-examined without risk.

14. With this in mind, the first hearing date before me was adjourned and the parties conducted questioning on the affidavits on February 19, 2025. Updating affidavits and Compendia were served, filed and uploaded to Case Center. The Court was provided with the link to the electronic transcripts of questioning, and I read both transcripts in their entirety. No cross-examination was conducted at the hearing.

Mother’s Evidence

15. Mother attests that she was the victim of physical, emotional, and financial abuse, including coercive control, at Father’s hands. She recounts incidents where Father:

a. screamed at her and at her mother, including in the children’s presence;
b. struck her in the face;
c. threw objects at her, including while she was holding Sam;
d. stabbed her with a sharp object;
e. controlled her financially;
f. isolated her, prohibited her from having contact with her sister and sent abusive emails from her account to her contacts;
g. drove erratically and recklessly with a view to frightening or injuring her;
h. involved the children directly by asking them whether he should “send Mummy away from this house;”
i. threatened to kill her, her family members and himself; and
j. threatened to take the children from her.

16. She attests that she is isolated in Kitchener, that most of her family remains in India and that her closest relative is her sister, Chhavi Kaushik, who is a medical doctor practising in New Jersey. She says that Father has intentionally limited her contact with her family and has become enraged when he catches her communicating with them. Mother says that Father monitors her whereabouts, her cellphone use (including emails) and her bank accounts. She says that he manages the passwords to all of her private accounts and has limited her access to her bank accounts. In July of 2024, he impersonated her in emails sent to lawyers dealing with her father’s estate and harassed her mother during the estate distribution process.

17. Mother attests specifically that, as of September 2024, Father’s threats had increased to the point where they were taking place “almost daily.” Overall, her evidence suggests that his abusive behaviors were escalating. On each of September 10th and September 11th, Mother alleges that father attempted to drive away rapidly while she was leaning into the vehicle to buckle the children into their seats. Mother’s fear of Father’s actions increased such that she asked her sister to come to Kitchener to be with her.

18. Mother attests that on the night of September 12, 2024, after her sister had driven from New Jersey, Father returned home around 6:00 p.m. and, angry that Chhavi was present, left again with a bag of clothes. He returned around 12:45 a.m. when the household was sleeping, enraged, and demanding that Chhavi leave. She did so. Mother attests that Father then began screaming and assaulting her, pulling her hair and shaking her head, twisting her forearm, and punching her in the shoulder. He threatened to take both children to India and demanded that Sara choose between her parents. Three hours later, police arrived and arrested Father.

19. Mother does not have a driver’s license. She does not have unmonitored access to her own bank accounts. She does not know what notifications may be connected to her banking and communication accounts. She fears for her life and the lives of the children. She has nowhere to live other than the matrimonial home and does not trust that Father would comply with any no-contact order. As a result of the police delay on September 12–13, 2024, she writes: “I have no confidence that I can rely on the authorities to adequately protect my children and me.”

20. Mother attests that the climate at her sister’s home in New Jersey is of great benefit to herself and to both children. Sara has settled into school and activities there. She pleads with the court for her own physical safety and mental well-being, which impact upon her ability to provide a stable and nurturing environment for the children. She says that a return to the matrimonial home as sought by Father would not be safe for her physically or mentally. Although Sara does not have immediate access to health care in the United States, both Chhavi and her husband are medical doctors.

21. Mother asserts that she has always been the children’s exclusive caregiver and that Father has had no experience in providing day-to-day care for the children, let alone addressing illness or other issues.

22. She proposes ongoing telephone and/or video calls twice weekly in addition to unsupervised visits in Waterloo Region on alternate weekends for up to twelve hours per session. She undertakes to provide all transportation for the children between New Jersey and Ontario. She also suggests that Father come to New Jersey in the opposing alternate weekends to have overnight visits with the children (Saturday morning to Sunday evening) there. She asserts that she is alive to the importance of maintaining a healthy bond between Father and the children.

23. During the questioning (cross-examination) on her Affidavits, Mother admitted that Father had never physically harmed the children and confirmed that she does not believe that he would do so. She confirmed that, prior to September 12–13, 2024, there had been no calls to police or child protection services. She admitted that “it didn’t occur” to her to tell Father that she had enrolled Sara in school in New Jersey. She disagreed with the suggestion that Father cared for the children while she was working, and instead testified that she was able to work on the second job from home after she had put the children to bed. She agreed that Father would cook occasionally for the family, usually on weekends.

24. In response to Father’s assertion that $200,000 was in an account in her name, she said [sic]:

I didn’t know, he was managing all the finances, I just found out the apps which were installed in my phone, when I received it after his arrest, and I just tried to get hold of the - because everything was linked and he set up the passwords, so everything was linked with his number, so I called all the banks, the apps ah for those banks, ah I just called them and told them the situation and they asked - I mean they gave me access, some word like biometric enabled, so I could enter those apps. Ah but, yeah, that's how I knew that.

25. As it turned out, Mother did have full access to the banking information through the apps installed on her cellphone. She could access the accounts using biometrics (i.e. finger- or face-print), although she was unaware of this until recently. It is curious that Mother, as a software engineer, would not have investigated this possibility. It certainly would be strange for Father to abuse Mother financially by placing significant resources into her sole name. However, Mother confirmed that Father kept her bank and credit cards in his wallet and that she had to ask him before making any purchases. Her bank and credit cards were returned to her by police following Father’s arrest.

26. I am concerned about Mother’s admission that she had no plan to tell Father about the enrolment of the children in school or daycare in New Jersey. I am also hesitant on the question of financial abuse. The evidence before this court regarding that allegation is too contradictory to support a finding. Otherwise, Mother’s evidence generally stood firm through her questioning.

Father’s Evidence

27. Father denies any form of family violence. He denies controlling any aspect of Mother’s life and asserts that he supported her “in all her endeavours.” He says that arguments took place, “but we have always reflected upon it, talked it out with each other and moved on.” He denies controlling Mother’s finances and states that Mother removed $32,000 from their joint account, along with jewellery and cash, when she left the matrimonial home on September 16, 2024. In addition, he points to the $200,000 in liquidity to which Mother has access (in the form of her own savings account that he opened and managed) in defence of the allegation of financial abuse.

28. He states that Mother never had her own cellphone and was using his device for personal chats. He denies engaging in self-harm as a form of intimidation and states that the photograph included in Mother’s materials depicts injuries he sustained falling off a ladder in the garage.

29. He attests that he was involved in Sara’s life in India such that he went to all appointments for the child and took her to temple, parks and dance classes. He states that, here in Kitchener, he would be alone in a caregiving role to both children after the end of his workday as Mother was working two jobs. He asserts that Mother could readily walk between the matrimonial home and Sara’s school (where Sam attended daycare) or the Huron Community Centre (where Sara has attended many activities in the past). He notes that Mother has an Indian driver’s license and could obtain her qualification here in Ontario upon completing the necessary exams. He alleges that Mother is used to the affluent lifestyle that she is enjoying in New Jersey, which is closer to their experience in India than the living situation in Kitchener; he seems to suggest that this is a significant motivating factor for her.

30. During questioning, Father was cagey and evasive, sometimes almost argumentative. Despite having been clearly advised that his responses could not be used to incriminate him in the criminal case, he refused to answer direct questions about the events of September 12–13, 2024. He eventually admitted that he was “emotional” and that he was unpleasantly surprised at the presence of his sister-in-law in the home on September 12th. He admitted that he “was not calm and controlled” when he returned to the home at approximately 1:00 a.m. on September 13th. He confirmed that the parties had what he called an argument, but at the same time denied raising his voice, saying: “I don’t remember because it is very subjective, like I’m talking here, so you think that my voice is loud, so I was in my normal tone.” He then waffled on that position, saying: “During the argument we might have changed the tone…” He reluctantly admitted that Sara was awakened by the argument but then deflected the reason, saying that it was in fact Sam’s “mumbling, crying or asking for the feed” that woke her up. He claimed that Sara never cries as a result of any contact with him, and that she only cries when disciplined by Mother.

31. I pause here to note that, contrary to submissions by Mother’s counsel, I do not draw an adverse inference against Father for his self-enrolment in anger management and positive co-parenting courses. It is imperative that individuals are encouraged to engage therapeutically, and I will not hold his participation in such courses against Father.

32. Having said this, I conclude based on the entirety of Father’s evidence that he is extremely hesitant to admit to any wrongdoing of any kind and that he has not demonstrated any insight into family violence in this matter. Simply stated, I disbelieve his testimony regarding family violence, particularly during the month of September 2024, and I find that he is the perpetrator of family violence against Mother. Where there is a discrepancy, unless otherwise stated I prefer Mother’s evidence.

Sara’s Evidence

33. It is undisputed that Sara wrote a letter to Father, on or about August 1st, which read [sic]:

Dear papa, I love you as much as mama, you are my father, family, best friend, and I really want everyone to be happy. Not sad or angry. Please, just calm down. I know you are frustrated, mad, and sad, it's OK, I felt that way before. I know it's hard but it's going to be OK. Please, calm down, talk it out, and cheer up. Lots and lots of love, Sara.

34. Father does not have any specific recollection of this letter. He was questioned about it and confirmed that he does not believe that it was fabricated or that Sara was forced to write it. He dismissively indicated that he received many letters, notes and gifts from Sara, who is very expressive with her emotions. He denied any knowledge of a reason for the child to write such a letter, suggesting that it could have been as a result of a conflict between them over Sara’s wish to play with a particular toy or “some difference in opinion.”

35. It is clear to this Court that Sara wrote the letter for its stated purpose: to attempt to placate and calm Father after some kind of outburst wherein he was “frustrated, mad and sad.” Sara recognizes Father’s need to take a different approach (to “talk it out”). Not only does this prove the impact of Father’s volatile behaviours upon Sara, it is also suggestive of a possibility that Sara could take on responsibility for managing Father’s emotional state. That Father doesn’t even remember this letter, let alone have any insight into its significance, is worrisome.

Maternal Aunt’s Evidence

36. Chhavi Kaushik, Mother’s sister, swore an Affidavit in this proceeding in which she recounted the events of September 12–13, 2024. She witnessed Father’s rage (which appears to have been triggered by seeing her in the home) and his threat that if she didn’t leave “something really bad would happen.” She witnessed Father going through Mother’s cellphone and saw the effects of his control over it in disconnecting Mother from her family. She experienced a harrowing three-hour wait for police to respond. She observed her sister’s visible fear of Father. She described the safe harbour that she is able to provide to Mother and the children at her home in New Jersey. Although she is Mother’s sister, and therefore undoubtedly aligned with Mother, I accept her narrative of the events of September 12–13, 2024.

Law & Discussion

I. Parenting Issues

37. The parties were married and thus Sections 16.1 through 16.4 and 16.6 of the Divorce Act apply.

38. This is an interim relocation request by Mother arising in the context of allegations of serious and prolonged family violence. There are many parallels with the relatively recent Supreme Court of Canada decision in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 SCR 517. The following directions from Karakatsanis, J. writing for the almost-unanimous majority, are essential to the correct assessment of this matter (internal citations omitted):

[142] Since Gordon,[1] courts have increasingly recognized that any family violence or abuse may affect a child's welfare and should be considered in relocation decisions.

[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 behavioral problems throughout their lives… Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

[146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis… Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

[147] Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.

[152] The crucial question is whether relocation is in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being. This inquiry is highly fact-specific and discretionary.

[153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A court shall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, any incidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage. A court shall also consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child. These examples are illustrative, not exhaustive. While some of these factors were specifically noted under Gordon, they have broad application to the best interests of the child.

[154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the unique challenges posed by relocation cases. In addition to the factors that a court will generally consider when determining the best interests of the child and any applicable notice requirements, a court should also consider [the factors set out at section 16.92(1) of the Divorce Act]:

• the reasons for the relocation;
• the impact of the relocation on the child;
• the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
• the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
• the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
• whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

39. As in this matter, in Barendregt the mother sought to move a full day’s drive away from the matrimonial home. There was no question that such a move would drastically reduce the children’s day-to-day contact with their father. The mother submitted that the move would provide her with the benefit of housing support, childcare and significant emotional support in the context of extracting herself from a violent relationship of 8 years’ duration. The trial judge found that “the father had assaulted and emotionally traumatized the mother; and his conduct at trial was abusive, and profoundly offensive.” Only one instance of violence, “when the father likely assaulted the mother during an argument,” is referenced in the Supreme Court of Canada's decision.

40. Importantly, Justice Karakatsanis dealt squarely with the legislative tension between what was once known as the “maximum contact principle” and the assessment of the best interests of children who may be relocating to a distance from the left-behind parent. Whilst confirming that a decision must consider the potential negative impact of the loss of day-to-day contact with the left-behind parent, Her Honour wrote [emphasis in original]:

[164] First, the question before the trial judge was not how to best promote the parenting time factor; It was how to best promote the best interests of the children. These considerations are not synonymous. Nor are they necessarily mutually reinforcing. Courts should only give affect to the parenting time factor to the extent that it is in the best interest of the child.

41. Her Honour also affirmed that escaping from family violence and seeking the support of extended family members and/or a community of origin are “an important factor in relocation cases.”

42. As this is a request for a Temporary Order to remain in place until the earlier of the rendering of the trial decision or August 31, 2025, there are further considerations, described thus by Justice Wood at paragraph 9 of Costello v. Johnston:

a. where there is a genuine trial issue, a Court should be reluctant to disrupt the status quo,
b. even with a genuine trial issue, the move might be allowed if the moving parent’s position stood a strong possibility of success at trial,
c. the existence of compelling circumstances (such as a limited window of opportunity to explore the financial benefit to the family unit) may justify allowing the move.

Best Interests Factors

43. The issues of decision-making and parenting time are assessed in the context of the “best interests test,” with detailed factors set out in the prevailing legislation. In the interests of brevity, I will not recite each of the factors as set out in Sections 16.1 through 16.4 and 16.6 of the Divorce Act, but rather note my conclusions below, based upon the evidence and a global assessment of the best interests of these children. I note specifically that my findings at this interim stage are subject to future change based on more fulsome and detailed evidence that will be available to the trial judge.

a. Sara and Sam are at very different developmental stages. Sara’s needs for socialization, schooling and extra-curricular activities are well supported both in New Jersey and in Kitchener. Sam has access to day care in both locations.

b. Sara is closely bonded to both parents; her love for Father is clearly demonstrated in the (admittedly curated) notes from the parenting time supervisor. Sam too is reported as comfortable in Father’s care. In New Jersey, both children have the significant benefit of extended family; I find that Father controlled contact between Mother (and by extension the children) with maternal family from their home in Kitchener. It is uncontested that Father has no family in Ontario.

c. Mother confirms that the children need time with Father and supports a safe and positive relationship. She confirmed that she does not believe that he will intentionally harm them when they are in his care. Father makes no direct comment in his Affidavit about his support of Mother’s relationship with the children. Father makes much of Mother’s cancellation of a visit over the weekend of February 21–23, 2025, when serious winter storms wracked Ontario and Southern Québec. He further points to Mother’s failure to advise him of Sara’s school enrolment as demonstrative of her unilateral action to minimize his involvement.

d. Sara’s views have not been sought out, per se, however her understanding of Father’s emotional outbursts is evident in the letter that she wrote to him, which was entered into evidence in this matter.

e. Both parents have similar cultural backgrounds (although members of Mother’s family are vegetarian); no issue in this regard is raised.

f. While both parents indicate their willingness to meet the needs of the children, having regard to Father’s evidence under questioning, I do not believe that he has the ability to do so. From a practical perspective, Father cannot reside in the matrimonial home and is currently residing with a surety who is unknown to the children. There is no information available regarding that individual or regarding the children’s safety or well-being should they spend time at the residence of the Father’s surety on weekends. I will point out here that Father has been voluntarily paying child support of $1,789 monthly since October of 2024, which speaks to his willingness and ability to provide financially for the children.

g. I find that Mother has been the primary caregiver since the family arrived in Canada. I accept Mother’s evidence that, as the sole caregiver, she has always been responsible of the children’s needs. Father has shown a clear lack of insight into Sara’s emotional needs and he minimizes the disruption to both children caused by violence in the home.

h. Father has taken a number of courses associated with conflict and anger management. Unfortunately, during questioning he did not articulate any learning success in the coursework that he has undertaken – one gets the impression that he may have taken the courses in order to satisfy the courts rather than for true personal growth. However, as noted above, I do not draw a negative inference against Father as suggested by Mother’s counsel for undertaking the courses.

i. It is interesting to note that Father repeatedly accuses Mother of relying upon stereotypes, alleging that she is manipulating the Court by referring to pre-marital issues with a dowry. He recites his view that Mother is “a strong and independent woman” with a university education who worked 12-hour shifts in India in a position consistent with her career choices. Presumably, he is suggesting to the court that, as a result, Mother could not possibly be a survivor of family violence. Such a suggestion plays into stereotypes about family violence; for clarity, I do not accept any of this evidence as persuasive in assessing whether family violence did, or did not, take place.

j. At this point in time, the parties cannot co-parent due to the history of coercive control and family violence that I find to be prevalent in this matter. The timing and severity of the incidents, particularly the apparent escalation as of early September 2024, is concerning. The events of September 10th and 11th, where Mother alleges that Father twice drove their vehicle away rapidly whilst she was half-way inside it buckling the children into their seats is particularly disturbing – at best, it suggests a reckless disregard for Mother’s life. It is undisputed that the children were present on the night of September 12–13, 2024; Father’s suggestion that they were not disrupted by that night’s events is nonsensical. I find that the children were directly aware of, involved in, and impacted by the family violence that has occurred in this matter. I accept Mother’s evidence that she continues to fear Father.

Barendregt Factors

44. As noted above, the Supreme Court of Canada outlined the following additional factors to be reviewed when considering a relocation case:

a. the reasons for the relocation;
b. the impact of the relocation on the child;
c. the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
d. the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
e. the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
f. whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

45. My conclusions regarding these factors can be summarized as follows:

a. Mother’s primary reason for the relocation is to seek the support of her immediate family following her disentanglement from an abusive marriage.

b. While certainly the children have had to adjust to their new location, the timing of the temporary relocation has been consistent with the 2024-2025 academic year and they are reported to have adjusted well. It is not unreasonable for a child of Sara’s age to spend one academic year in another location without prejudicing her ability to return and successfully re-integrate into her place of habitual residence.

c. Again underscoring that the trial judge will be in the best position to fully assess this family’s history and future, for the purposes of these motions I find that Mother has been the primary caregiver since 2020 and that Father has provided transportation, assistance with some household tasks, and some parenting (primarily of Sara) between Mother’s arrival in Canada and September 12, 2024.

d. The parties do not have an existing order or agreement addressing mobility issues.

e. Mother proposes that she continue to bring the children to Kitchener on alternate weekends for visits with Father. She suggests that the children can be in Father’s care from 10:00 a.m. to 10:00 p.m. on alternate Saturdays, which accommodates the travel time. She further proposes that, when his criminal proceeding allows, Father travel to New Jersey on opposing alternate weekends to visit the children, having them in his care from Saturday morning to Sunday afternoon depending upon his travel plans. She acknowledges the additional cost associated with this parenting time and is willing to reduce child support accordingly.

f. I find that both parties have complied with the orders made to date in this matter. Specifically, they have worked together to navigate Father’s parenting time on alternate Saturdays in Waterloo Region, which has included the management of third parties for communication and exchanges.

Temporary Mobility Factors

46. To determine the proper outcome on a temporary basis, I must be mindful that:

a. the status quo should not be lightly disrupted where there is a genuine issue for trial;
b. part of the analysis includes the likelihood of success at trial for the moving parent; and
c. compelling circumstances may justify allowing the move.

47. Section 16.9(1) of the Divorce Act requires at least 60 days’ advance notice of any intention to relocate with children of the marriage. Father argues that Mother failed to meet this requirement. It is correct to say that Mother did not provide Father with any advance notice of her intention to relocate temporarily to New Jersey, however section 16.9(3) provides for an exception in the court’s discretion, including “where there is a risk of family violence.” Considering my conclusion that family violence is present in this situation, I find that Mother was exempt from providing advance notice of her intention to move temporarily to New Jersey.

48. In one sense, the long-term residency of the children is a genuine issue for trial; in another, it is not. The prospect of an international relocation is certainly a genuine issue for trial. If, however, the question is primary residency with one parent or the other, from the perspective of the evidence available on this temporary analysis, I conclude that Mother has always been the primary caregiver for the children. It stands to reason that this is likely to continue; in that sense, from today’s vantage point, while the location of residence may well change following a trial, it is unlikely that the status quo of primary residency with Mother will be disrupted.

49. The second factor is similarly two-edged in this matter. If Mother’s position at trial is that she should be permitted to remain in the United States with the children without legal status or employment prospects there, it is unlikely to succeed. However, and despite the alternative pleading in her Notice of Motion, she is asking that the children be permitted to remain in New Jersey in her primary care temporarily until the expiry of her visitor’s visa at the end of August. It bears remembering that, from Sara’s perspective, the request is that she remain in the home of her maternal aunt and uncle to finish out her school year. Mother has presented no plan for long-term residency in New Jersey and, rather than speculate about her intentions at trial, I must take the facts and the relief sought as they stand today.

50. Finally, we again encounter the impact of family violence in this analysis, as the need for Mother to flee to a place of safety with the children in the absence of any family members in Canada (let alone Waterloo Region) is certainly a “compelling circumstance.” Mother has no supports here; to suggest that she can co-parent with Father and rely upon him for support in the face of the current criminal charges against him is impractical.

51. All of the cases cited by counsel pre-date the Supreme Court of Canada’s clear direction in Barendregt that family violence must be thoroughly considered when assessing a proposed move. While I agree with my colleagues’ comments that an interim motion ought not to be used to cure a unilateral move, particularly in the face of restrictions on mobility, those comments are not applicable here. Mother did not unilaterally move with the children: she brought an urgent motion, without notice in the context of her stated fears for her safety, and I granted her permission to temporarily relocate to New Jersey. Further, Parliament saw fit to include sections 16.9(3) and (4) to dispense with notice of a proposed relocation in the context of family violence. This underscores the significance of that issue in assessing the propriety of a proposed move.

Conclusion

52. Father proposes that the children visit with him on each of Saturday and Sunday in alternate weekends, not overnight. He has not provided the court with a clear understanding of the location at which parenting time would occur – he has no family in Ontario and is prohibited from attending at the matrimonial home. He thus is presumably reliant on his surety, about whom no information is provided. He contemplates an increase to alternate weekends inclusive of overnights as of May 1, 2025, but there is no concrete plan to address his terms of release or to arrange alternate housing suitable for the children by that date. With four months remaining in the school year, Sara would have to switch schools, possibly twice (once upon her return from New Jersey and potentially a second time when the matrimonial home is sold if neither parent remains in the catchment area for Kitchener).

53. In contrast, Mother’s plan offers the option for Father to see the children every weekend as soon as his cross-border travel is no longer restricted. She is willing to reduce child support to accommodate his travel expenses. As the parties awaited the argument of these long motions, Father’s parenting time has increased from three-hour supervised visits to twelve-hour unsupervised visits. Considering that he cannot currently accommodate overnights with the children, this is a significant shift. This increase has taken place over five months: an efficient pace that demonstrates Mother’s willingness to prioritize Father’s relationship with the children.

54. Overall, I conclude that the best interests of the children require them to remain primarily in Mother’s care in New Jersey until the release of the trial decision or August 31, 2025, whichever is earlier. I further find that Mother’s proposal for parenting time is superior and confirm that Sara would complete this academic year in New Jersey. With respect to decision-making, having regard to my conclusion that family violence is a significant consideration here, Mother will continue to have sole decision-making responsibility on a without prejudice basis. I again confirm that all these provisions will be subject to the trial judge’s assessment on fulsome evidence. The trial judge may well reach an opposite conclusion to my assessment at this interim stage.

Restraining Order

55. There is no evidence that Father has made any attempts to breach the restraining order or that he has failed to respect the boundaries of the parties’ separation in any way. I am mindful that an ongoing restraining order could limit his ability to travel across the Canada/U.S. border, particularly if he is going to the area where Mother resides. Mother is well supported in New Jersey and the post-separation emotional intensity appears to have subsided. Consequently, I find that the restraining order is not required at this time. Father is cautioned that the issue remains open for the reinstatement of a restraining order by the trial judge.

Exclusive Possession

56. As a result of my conclusions regarding the parenting issues, there is no need for any order for exclusive possession of the matrimonial home and its contents.

Preservation/Non-Dissipation Order

57. Mr. Lee for Mother suggested that a preservation/non-dissipation order was necessary to combat financial abuse in this matter. As noted, I cannot be certain on the conflicting evidence in this matter that Father in fact committed financial abuse, although the trial judge may find differently. No evidence of actual dissipation of assets by Father post-separation was provided. No case law was cited in support of the concept of preservation of assets as a preventative measure in the context of family violence. I decline to make the preservation/non-dissipation order.

Costs

58. The parties agreed that the winning party would receive costs fixed in the amount of $10,000. There is no question that the primary issue was the temporary relocation of Mother and the children. Mother was successful on that issue, inclusive of without prejudice sole decision-making and her proposed parenting plan. While Father was successful on the discontinuation of the restraining order and in defending against the preservation/non-dissipation order, I find that Mother was substantially more successful and thus she is the litigant entitled to costs of $10,000.

Order

59. Based on all of the foregoing, Temporary Order to issue, with counsel to insert the full names of all involved and the dates of birth of the children:

60. The Applicant’s address shall be redacted from the style of cause and she shall be permitted to indicate “c/o counsel.”

61. The Applicant shall have sole decision-making responsibility for both children.

62. Both children shall remain primarily resident with the Applicant in New Jersey, United States of America, on a temporary basis until the release of the trial decision or August 31, 2025, whichever is earlier.

63. Commencing on March 8, 2025, and on alternate Saturdays thereafter, the Respondent shall have parenting time with the children in Ontario on the following terms: a. Up to twelve hours of unsupervised parenting time on each occasion. b. At least one week prior to the scheduled visit, the parties shall confirm the time and length of the visit. c. The parties shall arrange a mutually agreeable third-party to facilitate the exchanges. d. Exchanges shall occur in Waterloo Region, but the Respondent may exercise the parenting time anywhere in Ontario. e. The Applicant shall be solely responsible for all costs of transporting the children between Waterloo Region and New Jersey.

64. Commencing on three days’ advance written notice from the Respondent to the Applicant (via counsel), the Respondent shall have additional parenting time in New Jersey on alternate weekends opposite his parenting time set out at paragraph 4, above, on the following terms: a. Parenting time to run from Saturday morning overnight to Sunday on such exact terms as accord with the Respondent’s travel schedule, or on such other exact terms as the parties agree upon in advance in writing. b. At least one week prior to the scheduled visit, the parties shall confirm the time and length of the visit. c. The parties shall arrange a mutually agreeable third-party to facilitate the exchanges. d. The Respondent may deduct reasonable costs associated with his travel to and from parenting time from child support currently being paid voluntarily.

65. Paragraphs 2 through 6 of the Temporary Order of Breithaupt Smith, J. dated January 14, 2025 shall continue.

66. Sara shall continue to be enrolled at, and attend, [identification of school name and address redacted for publication purposes] in New Jersey for the balance of the 2024-2025 academic year.

67. The Restraining Order dated September 18, 2024 is rescinded.

68. Costs shall be payable by the Respondent to the Applicant, fixed in the amount of $10,000. Same shall be paid by means of an adjustment to the division of the parties’ shares of the equity in the matrimonial home upon its sale, or on such other exact terms as the parties may agree upon in writing.

J. Breithaupt Smith
Released: March 13, 2025

[1]: Gordon v. Goertz, [1996] 2 SCR 27