Court File and Parties

Court File No.: FS-25-00025392 Date: 2025-10-15 Ontario Superior Court of Justice

Between: Dipa Etani, Applicant – and – Mahendra Khar Koirala, Respondent

Counsel:

• Joel Wright, for the Applicant
• Maria Fernandes, for the Respondent

Heard: October 10, 2025

Decision on Motion

McCabe A.J.:

Background

[1] The parties were married for 11 years and separated in May 2024. They are the parents of three children, Drishya (born August 8, 2017, aged 8), Drishant (born Feb 20, 2019, aged 6), and Divyanka (born July 31, 2021, aged 4).

Criminal Charges against the Respondent

[2] An event occurred at the time of separation that led to criminal charges of assault and damage to personal property being laid against the respondent. These charges were withdrawn at the request of the Crown on April 15, 2025, as a result of the respondent having completed terms of a Direct Accountability program.

[3] The applicant states in her affidavit material that the respondent remains subject to an order restraining him from communicating with the applicant. The respondent's affidavit material is silent on this issue. The court notes that the copy of the criminal information attached as Exhibit A to his affidavit dated August 26, 2025, appears to suggest that a s. 810 Peace Bond may have been issued by the criminal courts at the time that the assault charge was withdrawn by the Crown. Given the state of the evidence at this stage on this point, the court is unclear whether there is a prohibition of communication or not.

Residency of Drishya Following Separation

[4] It is not disputed in the affidavit material that immediately following separation, all three of the children remained in the care of the applicant. However, on or about January 2, 2025, Drishya began residing with her father following a hospital stay arising from a serious medical issue.

[5] The applicant's evidence is that she did not agree to this arrangement. She states that during a visit with her father, the child was complaining of pain. This resulted in her father taking her to the hospital at which point it was discovered that Drishya had a lung tumor which necessitated surgery and a three-week hospital stay. The applicant states that due to the restraining order, then in place due to the respondent's pending criminal charges, she was only having contact and learning information related to her daughter's situation through family members. This meant she was unaware of her daughter's discharge date from the hospital. The applicant's evidence is, upon learning of her daughter's discharge from hospital, that she asked for her daughter to be returned to her residence or that she have overnight periods of parenting with her daughter. These requests were refused by the respondent. She states at para. 7 of her affidavit, sworn August 19, 2025, that her contact with Drishya has been restricted by the respondent and that Drishya has expressed to the applicant a desire to see her but that she is afraid of her father.

[6] The respondent indicates that Drishya has been in his care since January 2025 without any protest from the applicant and that the applicant has been able to visit a number of times but that the daughter wants to return to the care of her father after each visit. In his evidence and in his counsel's submissions, the respondent asks the court to find that the actions of the applicant related to Drishya's need for medical care portrays her acting poorly, failing to obtain or delaying the medical treatment that this child needed. He indicates at para. 17 of his affidavit, sworn August 26, 2025, that he requested through (unnamed) family members that the applicant provide the child's heath card on three occasions and that it was not until he sought assistance from the applicant's brother (from whom the court has no benefit of an affidavit) that the health card was delivered.

[7] Given this disparity in the evidence, it is unclear to the court what contact the applicant has had with her daughter since January 2025.

Residency of Drishant and Divyanka Following Separation and Events Leading to the Motion

[8] It is not disputed in the affidavit material that immediately following the separation, Drishant and Divyanka were in the care of the applicant and that they remained primarily in her care until July 12, 2025. On this date, the accounts as to the circumstances that lead to these two children being in the care of the respondent diverge greatly.

[9] It is the applicant's evidence that following several phone calls from her 8-year-old daughter, who she alleges was being coached by the respondent, and the respondent following her in his car that she conceded to these children attending for a visit at the respondent's home. This evidence is corroborated by an affidavit from the respondent's niece.

[10] It is the respondent's evidence that the two younger children were, without prior arrangement or explanation, simply dropped off at his residence by the applicant at 10:30 p.m. He states that the children told him that the applicant advised them that they were to live with him forever. Despite apparent clarity regarding the timing and detail of these events, his evidence regarding his actions earlier in the evening is not as clear. He states that he "may have left [home] to purchase some cigarettes at some point in the evening as he often [does] but that he [does] not specifically recall as it was a long time ago."

[11] He further indicates that since this date, the applicant has made little effort to contact or see the children. He states that upon being contacted by the applicant's counsel seeking the return of these two children to her care, "in the circumstances, he did not believe returning the children to the applicant was in their best interests." He provides no foundation for this belief. In his initial affidavit filed August 19, 2025, at para. 10, he suggests that the applicant's parenting time with the children should be supervised. In answer to the court's question related to his proposal for the applicant's parenting time, he now suggests that she should have unsupervised contact three out of four Saturdays of the month, overnight until Sunday.

[12] The respondent claims that since this event on July 12, 2025, the applicant has made only three attempts to contact the children. The applicant provides evidence of multiple attempts in the form of screen shots of attempted cell phone calls to Drishya.

[13] It appears to not be in dispute that the only visits the applicant has had with any of the children following the events described above have been facilitated by the family's Children's Aid Society worker.

Drishya's Mental Health

[14] The applicant alleges that after Drishya went into the care of the respondent in January, she became depressed. She states this issue was raised to her by two people, an individual who was then living with the respondent and the CAS worker, Mr. Anjum. The respondent denies that the child is depressed but acknowledges that "she is upset that the applicant calls her phone refusing to talk to her, asking only to talk with the youngest child." He assures the court that he will continue to foster a positive relationship between the applicant and the children.

[15] As the court advised counsel at the hearing, the court finds it very troubling that children aged eight, six, and four would suddenly and without warning seemingly cut off all contact with their mother, whom they have lived with for a considerable portion of time post-separation.

[16] The court is also concerned that the child, Drishya, has been brought into the conflict between her parents. Although, the respondent denies the evidence of the applicant that the phone calls that precipitated the events of July 12, 2025, were made by the parties' daughter, the evidence of the attempted efforts by the applicant to contact the children are clearly to the cell phone of the child.

[17] The respondent states repeatedly that the child, Drishya, does not wish to spend time with her mother and that the children want nothing to do with her because the applicant has estranged herself from them.

Analysis

[18] At this stage the court is asked to make an interim interim parenting time order. The affidavit material of the parties has not been the subject of cross-examination, and the CAS worker has not been examined. The court is to be guided by the best interests of the children and the factors set out at s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[19] At s. 16(3) these factors include:

(a) The child's needs given their age, stage of development and need for stability;

(b) The nature and strength of the child's relationship with each of their siblings, grandparents and any other person who plays an important role in the child's life;

(c) Each parent'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 weight to the child's age and maturity;

(f) The child's cultural, linguistic, religious and spiritual 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 the 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;

(k) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child;

(l) 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

(m) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well being of the child.

[20] At 16(4), the court is urged to consider the impact of any family violence under para. (3)(j), and take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[21] At 16(6), the court is directed in allocating parenting time, to 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.

[22] The AFCC Ontario Parenting Plan guide "has been found by many courts to be of great assistance in determining parenting schedules that are in the child's best interests depending on the age of the child and his/her development stage. Although it is not binding on the courts, the Guide provides a great deal of helpful information and reflects a professional consensus in Ontario about the significance of the current child development research for post-separation": see Melbourne v. Melbourne, 2022 ONSC 2299, at para 21; Dupuis v. Dupuis, 2024 ONSC 4836, at para. 28.

[23] A review of the Guide for school aged children reveals that where parents are in conflict, the child's sense of competence may be affected. Therefore, it is important to protect children from conflict between their parents. It further states that children at this age often feel that they need a parent's "permission" to see the other parent and that resistance to contacting a parent due to parental conflict or the influence of an aligned parent may start for children at this age or who are a little older.

[24] As a matter of law, it is well established that how much time a child spends with a particular parent is not a decision that should simply be left to the child: Hatcher v. Hatcher.

[25] As stated by Desormeau J. in Callwood v. Callwood v. Purdy, 2020 ONSC 3657, at para. 29:

…Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression arising from the parties' material or argument is one of embellishment, that impression will colour everything that emanates from that party…

… A pebble of proof is worth a mountain of innuendo or bald allegation.

Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party's failure regarding collateral issues, say their stinginess or the paucity of their financial disclosure are irrelevant and counter productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.

[26] The court is not satisfied that the respondent has or will support the children's relationship with the applicant. Given the ages of the children, the respondent has an obligation to support the applicant's relationship with them, especially Drishya following what was undoubtedly a very traumatic event in her life (her need for serious medical intervention). He relies on the terms of his then in-force restraining order to justify his actions, notwithstanding that this order arose out of the circumstances of an incident of intimate partner violence for which he has taken responsibility by virtue of his completion of the direct accountability program.

[27] Further, his affidavit evidence filed in these proceedings, particularly in relation to the issue of the incident of intimate partner violence, reads more like argument than a recitation of facts and draws inferences from the stated facts: see paras. 5 and 6 of the respondent's affidavit sworn August 26, 2025.

[28] It is the respondent's evidence as of the hearing, that the restraining order is no longer in place, and yet there is nothing in his evidence to suggest that his efforts to support the relationship between the applicant and the children have changed or improved.

[29] He provides little, if any, evidence for the court to consider related to the current living arrangements for the children or whether those arrangements are in their best interests. Instead, he devotes a considerable portion of his affidavit material to criticism of the applicant's failure to support the children financially.

[30] The court is also obliged to discourage parents from utilizing any form of self-help in anything less than the most urgent of circumstances. A parent who engages in self-help tactics, despite the best interests of the child, will generally raise serious questions about their own parenting skills or judgment: see Izyuk v. Bilousov, 2011 ONSC 6451.

Conclusion

[31] I am concerned about the behaviour of both parties.

[32] The applicant delayed seeking the assistance of the court regarding her parenting time for Drishya and has been clearly using this child as a go between to solve the apparent communication problems between the parties. She appeared to acquiesce in the child living primarily with the respondent from January 2025 until this motion was argued in October 2025.

[33] The respondent on the other hand, has exercised poor judgment in his efforts to foster and maintain a relationship between the applicant and the children. Further, his evidence related to the events of July 12, 2025, is not credible and he downplays the seriousness of the incident of intimate partner violence which led to the separation by using phrases like "fabricated" and by relying on hearsay.

[34] Perhaps thankfully for the benefit of the children, these parties reside in very close proximity to one another. That fact, together with a consideration of the somewhat self-imposed status