Kohli v. Thom: Navigating Family Violence, Relocation, and Support in High-Conflict Separations

The Ontario Court of Appeal’s decision in Kohli v. Thom, 2025 ONCA 200, is a pivotal case for family law practitioners, offering nuanced guidance on the interplay of family violence, relocation requests, and support determinations in high-conflict separations. The Court’s analysis clarifies the deferential standard for relocation decisions while underscoring the critical need to address the economic consequences of family violence when imputing income for support orders. Issued while the Supreme Court of Canada has reserved judgment in Ahluwalia v. Ahluwalia, 2023 ONCA 476, which examines the tort of family violence, Kohli v. Thom signals a growing judicial focus on the lasting impacts of abuse in family law proceedings.

The Court dismissed the appeal on relocation and parenting issues but allowed the appeal on support, setting aside the trial judge’s imputation of income to the appellant and substituting new child ($712/month) and spousal ($1,453/month) support orders from January 2022 onward, based on her actual income of $0.

Case Background

Ms. Thom (appellant) and Mr. Kohli (respondent) cohabited for 18 years, marrying in 2003 and having a son in 2018. Their relationship was marked by significant conflict, including findings of family violence against Ms. Thom, who alleged physical, verbal, and psychological abuse by Mr. Kohli (paras 11, 41). The parties separated in 2019, after a tumultuous period involving police intervention and Children’s Aid Society investigations (paras 10, 13). At trial before Justice Pinto, Ms. Thom sought to relocate with the child to New Brunswick, where her family resided, citing the need for a fresh start to recover from the abuse (para 42). She also requested sole decision-making, spousal support, and damages for family violence under Ahluwalia v. Ahluwalia, 2022 ONSC 1303.

The trial judge:

• Denied the relocation request, finding it contrary to the child’s best interests due to his established life in Toronto and Mr. Kohli’s superior ability to meet his developmental needs (paras 52-57).
• Ordered a 2-2-3 equal parenting schedule and granted Mr. Kohli sole decision-making over health and education, citing Ms. Thom’s resistance to vaccinations and socialization (paras 58-59).
• Imputed a minimum-wage income of $31,000 to Ms. Thom from January 2022, terminated spousal support thereafter, and credited Mr. Kohli for overpayments, despite finding he had abused her (paras 63-65).
• Deferred a ruling on family violence damages pending the Ahluwalia appeal (para 67).

The Court of Appeal upheld the relocation and parenting orders but reversed the support orders, finding the trial judge erred by imputing income to Ms. Thom without considering the impact of family violence on her earning capacity (paras 133-140).

Key Issues and Holdings

1. Standard of Review in Relocation Cases

The Court reaffirmed the narrow scope of appellate review for parenting and relocation decisions, citing Barendregt v. Grebliunas, 2022 SCC 22, and J.N. v. C.G., 2023 ONCA 77 (paras 80-81). Trial judges, who observe witnesses firsthand, are best positioned to weigh the fact-specific and discretionary factors under the Divorce Act. Appellate intervention is warranted only for a material error, serious misapprehension of evidence, or error of law, not for differing interpretations of the evidence. This deference underscores the high bar for overturning relocation orders and discourages appeals based on reweighing factors.

2. Family Violence and Relocation Analysis

The trial judge adopted a “blended approach” per Chapman v. Somerville, 2022 SKCA 88, evaluating Ms. Thom’s relocation request alongside other parenting issues, such as decision-making and parenting time, to determine the child’s best interests under ss. 16(3) and 16.92(1) of the Divorce Act (paras 47, 82). The Court of Appeal found no reversible error in this analysis, noting the trial judge’s careful consideration of family violence as a key factor (paras 84-89).

The trial judge found that Mr. Kohli had engaged in sustained family violence, including “beating” Ms. Thom over many years (para 49). However, he concluded this did not preclude Mr. Kohli from parenting effectively, given:

• The child’s young age (16 months) at separation, limiting exposure to violence (para 50).
• No incidents of violence post-separation (para 50).
• Mr. Kohli’s demonstrated ability to meet the child’s developmental needs, contrasted with Ms. Thom’s resistance to socialization and vaccinations (para 52).
• The child’s established life in Toronto and strong relationship with his paternal grandmother, which relocation would disrupt (paras 53-54).

The Court of Appeal endorsed this reasoning, emphasizing that family violence, while significant (Barendregt, para 147), must be weighed against case-specific facts (para 89). The trial judge recognized the potential for indirect harm from exposure to domestic conflict but found the risk attenuated due to the child’s age and the absence of post-separation violence (paras 50, 88). The Court rejected Ms. Thom’s argument that the trial judge relied on stereotypical reasoning, noting his evidence-based conclusion that Mr. Kohli posed “little risk” to the child (para 89).

The Court also addressed Ms. Thom’s reliance on a 2020 Office of the Children’s Lawyer (OCL) report recommending relocation. The trial judge deemed the report “stale dated” due to the significant time lapse (two years) and changed circumstances, such as the parties’ improved post-separation interactions (para 94). The Court of Appeal upheld this finding, affirming the trial judge’s discretion to assign limited weight to outdated recommendations (para 95).

However, the Court found error in the support analysis:

“Having acknowledged the underlying facts of the family violence and the impact of this violence on the appellant, the trial judge failed to consider the significance of these findings for the imputation of income… It was unreasonable for the trial judge not to grapple with the potential effect of this violence on the appellant’s ability to work” (paras 133, 138). (emphasis added))

Citing Leskun v. Leskun, 2006 SCC 25, the Court clarified that while spousal misconduct cannot directly influence support entitlement, its emotional and psychological consequences—such as PTSD, exacerbated OCD, or situational depression—are highly relevant to assessing employability (paras 136-137). The trial judge’s failure to engage with these consequences, despite acknowledging Ms. Thom’s mental health challenges, constituted a palpable and overriding error (para 138).

3. Procedural Considerations in Support Proceedings

The Court reiterated procedural principles critical to support determinations:

• Onus of Proof: The party seeking to impute income bears the burden of proving intentional unemployment or under-employment (Homsi v. Zaya, 2009 ONCA 322, para 111).
• Drygala Test: Courts must assess (para 123):
  • Is the party intentionally under-employed or unemployed?
  • If so, is this required by reasonable educational needs, child-care duties, or health needs?
  • If not, what income should be imputed? (Drygala v. Pauli, 2002 ONCA 711).
• Evidentiary Foundation: Judicial observations of a party’s demeanor at trial are not a sufficient basis for inferring intentional unemployment (para 139). The trial judge’s reliance on Ms. Thom’s ability to participate in court proceedings to infer employability was flawed (para 130).
• Adverse Inference: For self-employed payors like Mr. Kohli, failure to fully disclose income sources justifies an adverse inference, but the imputed amount must be grounded in evidence (Monahan-Joudrey v. Joudrey, 2012 ONSC 5984, ¶108). The Court upheld the trial judge’s imputation of $76,370 to Mr. Kohli, finding it within an acceptable range (para 120).

Implications for Practice

Kohli v. Thom offers critical lessons for practitioners handling high-conflict family law cases involving family violence. The following expanded practice tips address relocation, support, and procedural strategies.

1. Strategizing Relocation Cases

Relocation requests demand a holistic approach, as the “blended approach” requires aligning the request with all Divorce Act factors (ss. 16(3), 16.92(1)). Practitioners should:

• Build a Comprehensive Evidentiary Record: Present detailed evidence on the child’s best interests, including relationships with parents and extended family, developmental needs, and the impact of relocation. In Kohli, the trial judge found Ms. Thom’s New Brunswick plan speculative due to her lack of concrete employment or educational prospects (para 91). Anticipate judicial scrutiny of relocation plans and provide specific, evidence-based proposals (e.g., school enrollment plans, family support commitments).
• Address Family Violence Explicitly: Even when family violence is established, its weight depends on its impact on the child’s best interests. Highlight how violence affects parenting capacity or the child’s well-being, using expert testimony or psychological assessments, if possible. In Kohli, the Court upheld the trial judge’s finding that violence did not impair Mr. Kohli’s parenting due to the child’s limited exposure (para 50).
• Update OCL Reports: Outdated OCL reports risk being discounted, as seen with the “stale dated” 2020 report in Kohli (para 94). If relying on an OCL recommendation, ensure it reflects current circumstances or request an updated report before trial. Document changes in the parties’ dynamics (e.g., post-separation cooperation) to contextualize older recommendations.
• Focus Appeals Narrowly: Given the high deference to trial judges, appeals should target clear errors in law or fact, such as misapplying Divorce Act factors or ignoring material evidence. Broad challenges to the trial judge’s balancing of factors are unlikely to succeed (para 81).

2. Crafting Support Arguments in Family-Violence Cases

The Court’s reversal of the imputed-income finding underscores the need to connect family violence to economic outcomes. Practitioners should:

• For Recipients:
  • Link Violence to Employability: Explicitly tie family violence to the client’s earning capacity, citing Leskun for the principle that emotional and psychological consequences (e.g., PTSD, anxiety, depression) are relevant to support (para 136). In Kohli, Ms. Thom’s OCD and situational depression were acknowledged but not analyzed in the imputation analysis (para 126).
  • Secure Medical/Psychological Evidence: Substantiate claims of impaired employability with expert reports or medical documentation. The trial judge in Kohli noted Ms. Thom’s lack of medical evidence to support her inability to work, which weakened her position (para 125). Consider retaining psychologists or vocational experts to assess the impact of abuse.
  • Frame Consequences, Not Misconduct: Avoid focusing on the payor’s fault. Instead, emphasize how abuse has hindered the recipient’s self-sufficiency, aligning with A.C. v. K.C., 2023 ONSC 6017 (para 135). For example, argue that trauma-related mental health issues limit job prospects or require recovery time.
  • Challenge Arbitrary Imputations: If income is imputed, scrutinize the evidentiary basis. In Kohli, the trial judge’s reliance on Ms. Thom’s trial participation was overturned as an insufficient ground (para 139). Highlight gaps in the payor’s evidence of intentional under-employment.
• For Payors:
  • Demonstrate Recipient’s Capacity: Provide evidence that family violence does not impair the recipient’s employability, such as recent work history, educational pursuits, or participation in daily activities. In Kohli, Mr. Kohli argued Ms. Thom was “deliberately underemployed” but failed to meet the onus absent evidence of her current capabilities (para 122).
  • Address Child-Care and Health Needs: Under the Drygala test, show that the recipient’s unemployment is not justified by child-care or health needs (para 123). For example, evidence of available daycare or improved health could support imputation.
  • Ensure Robust Financial Disclosure: Self-employed payors must provide clear, comprehensive income documentation to avoid adverse inferences. Mr. Kohli’s failure to delineate income sources led to an imputed income of $76,370, higher than his claimed $50,400 (para 119).
• Interim vs. Final Orders: At the interim stage, courts may be cautious about imputing income to recipients with a history of abuse, as seen in Nishikawa J.’s refusal to impute income to Ms. Thom in 2020 (para 28). At trial, however, the onus shifts to proving intentional under-employment, requiring stronger evidence from payors.

3. Challenging Imputation of Income

Imputation findings are vulnerable on appeal if they:

• Fail to consider family violence’s impact on earning capacity, as in Kohli (para 138).
• Rely on judicial impressions rather than evidence (para139).
• Misplace the burden of proof, requiring the recipient to disprove under-employment rather than the payor proving it (para 138).

Practitioners should:

• Scrutinize the Drygala Analysis: Ensure the trial judge addresses all three Drygala questions, particularly whether health needs (including mental health impacts of violence) justify unemployment (para 123). In Kohli, the trial judge’s failure to engage with this factor was fatal (para 137).
• Challenge Evidentiary Gaps: If imputation rests on assumptions (e.g., economic recovery post-COVID in Kohli, para 128), argue that the payor failed to meet the evidentiary onus per Homsi v. Zaya (para 111).
• Advocate for Proportionality: When imputing income, courts must select an amount grounded in the recipient’s realistic earning potential. The arbitrary selection of $31,000 in Kohli was overturned partly due to its disconnect from Ms. Thom’s circumstances post-abuse (para 131).

4. Procedural and Evidentiary Nuances

• Self-Represented Litigants: Both parties in Kohli were self-represented at trial, limiting cross-examination on financial issues (para 113). Practitioners should leverage cross-examination to probe income claims (for payors) or employability barriers (for recipients), especially in high-conflict cases.
• Adverse Inferences: For payors, incomplete financial disclosure risks adverse inferences, as seen with Mr. Kohli (para 116). Ensure clients provide detailed records, including corporate income, expenses, and tax filings, to avoid inflated imputations.
• Interim Motions: Interim orders, like Nishikawa J.’s in Kohli (para 29), often set a baseline for support. Practitioners should advocate for realistic interim imputations, as these can influence trial expectations, though they are not binding (para 117).

Policy Implications

Kohli v. Thom reflects a broader judicial shift toward recognizing the economic ramifications of family violence, particularly in support determinations. The Court’s reliance on Leskun and A.C. v. K.C. signals that Ontario courts are increasingly attuned to how abuse shapes post-separation financial outcomes. The pending Ahluwalia appeal, which may clarify the scope of remedies for family violence, could further elevate the role of economic consequences in family law. Practitioners should anticipate heightened scrutiny of support orders in cases involving proven abuse, especially where imputing income risks exacerbating a victim’s vulnerability. This case also underscores the tension between promoting self-sufficiency and acknowledging the lasting impacts of trauma, a balance courts will continue to navigate.

Conclusion

Kohli v. Thom is a significant decision which reinforces the obligation of Ontario courts to meaningfully address the economic consequences of family violence in support determinations. While upholding deference on relocation and parenting decisions, the Court demands rigorous analysis of how abuse affects employability. Practitioners must build robust evidentiary records, strategically frame family violence arguments, and challenge unsupported imputations to secure just outcomes in high-conflict cases. As the Ahluwalia appeal looms, Kohli v. Thom serves as a critical guide for navigating the evolving landscape of family law.

Let’s continue to elevate the practice of family law in Ontario!

Connect with us on LinkedIn.

Legal Disclaimer: See Privacy Policy

Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.