Family Violence and Parenting Orders: Lessons from Tewari v. Tewari

The Ontario Superior Court decision in Tewari v. Tewari (2024 ONSC 682) provides important guidance on how courts analyze family violence in the context of interim parenting orders. Justice Schabas’ decision offers a comprehensive application of the family violence provisions in the Divorce Act, making it a valuable precedent for family law practitioners in Ontario.

Case Overview

Tewari v. Tewari involved an interim parenting motion for two young children: A (age 6) and A (10 months). The mother ( had fled the family home with the younger child to a shelter, alleging ongoing physical and psychological abuse. The father sought to maintain care of the older child, who had been returned to him via an ex parte order after the mother briefly took her from school. Both parents presented competing affidavit evidence regarding family violence and primary caregiving roles.

Court’s Analysis of Family Violence

Justice Schabas’ decision demonstrates how courts can assess competing claims of family violence in interim motions where evidence is limited to affidavits. The Court found “cogent and compelling evidence” of family violence after carefully examining:

• Audio recordings of conflicts
• Police notes
• Correspondence from social workers
• Children’s Aid Society records

Interim motions like Tewari pose unique evidentiary challenges, as courts must weigh competing affidavits without the benefit of cross-examination. Justice Schabas’ preference for the mother’s evidence hinged on its “cogency,” bolstered by recordings, police notes, and social worker correspondence. For practitioners, this underscores the need to prioritize quality over quantity in affidavit materials—vague or uncorroborated allegations may falter against specific, documented claims. When advising clients, consider focusing on securing tangible evidence early, as the court’s ability to resolve credibility disputes is limited at this stage.

The Court found that the father engaged in physical and psychological abuse and exhibited “coercive and controlling behaviour,” including:

• Financial control (denying the mother access to government benefits, refusing to allow her a bank account)
• Social isolation (not allowing her to work or go out alone, denying her a key to their apartment)
• Surveillance (installing cameras in the apartment)
• Resource deprivation (refusing to purchase adequate clothing or feminine hygiene products)

Particularly noteworthy was the Court’s recognition of how the father had systematically excluded the mother from the older child’s life by taking control of school and extracurricular activities and providing only his contact information to institutions.

Application of Divorce Act Provisions

The decision provides an excellent roadmap for applying section 16 of the Divorce Act, particularly the family violence provisions. Justice Schabas systematically applied:

1. The “best interests of the child” test (s. 16)
2. Primary consideration to children’s “physical, emotional and psychological safety, security and well-being” (s. 16(2))
3. Family violence factors (s. 16(4)), including:
   • Nature, seriousness, and frequency of violence
   • Pattern of coercive and controlling behavior
   • Direct or indirect exposure of children to violence
   • Risk of emotional and psychological harm
   • Impact on safety
   • Fear caused by the violence

Challenging the “Status Quo” Presumption

The decision challenges the reflexive application of the “status quo” principle in interim parenting motions. Justice Schabas rejected the father’s argument that the existing arrangement (where the older child remained with him) should be maintained, finding that:

1. The father had created an artificial “status quo” through his coercive and controlling conduct
2. The true pre-separation status quo was that the mother provided primary care to both children
3. A parent “should not benefit from their efforts to create a new status quo through coercive and controlling behaviour”

This analysis provides a useful precedent for cases where one parent has used controlling behavior to manipulate the apparent caregiving arrangement.

Sibling Unity and Breastfeeding Considerations

The Court emphasized the importance of keeping siblings together, noting it would not be in the children’s best interests to have a “significant separation” that would “affect bonding between the sisters.” This consideration was balanced with practical realities, including the fact that the younger child was still breastfeeding, which limited the father’s possible parenting time with her.

Practical Considerations in Parenting Plans

The Court’s parenting order demonstrates a pragmatic approach to interim arrangements by:

1. Acknowledging that the mother’s shelter living situation was temporary
2. Recognizing that changes in school and activities were unfortunate but manageable given the child’s young age and short time at the current school
3. Setting specific exchange times and locations (
4. Addressing practical matters like passport retention by the Court while allowing the primary caregiver access to birth certificates and health cards

The father’s financial control—denying the mother access to funds and government benefits—also raises support implications. While not adjudicated here, this conduct could justify higher spousal or child support awards to address the mother’s economic disadvantage, a factor practitioners should flag when negotiating or litigating support alongside parenting orders.

Addressing “Self-Help” Arguments

The Court provided thoughtful analysis of the so-called “self-help” issue, where the mother had temporarily taken the older child before any court orders were in place. Justice Schabas noted that while self-help measures are generally not condoned, they must be viewed in context—particularly when a parent is fleeing family violence. This balanced approach provides guidance for similar situations.

Implications for Practice

This decision offers several key takeaways for family law practitioners:

1. Evidence Collection: Assist clients in gathering and preserving evidence of family violence, including recordings, correspondence with helping professionals, and police records.
2. Coercive Control Recognition: The Court’s detailed analysis of coercive controlling behavior provides a template for identifying and documenting these behaviors beyond physical violence.
3. Expert Involvement: The credibility boost from Children’s Aid Society and social worker reports highlights the value of early referrals to community agencies. Consider coordinating with these professionals to document violence or safety concerns contemporaneously.
4. Status Quo Challenges: The decision provides arguments to counter automatic “status quo” presumptions when that status quo has been manufactured through controlling behavior.
5. Sibling Relationships: The emphasis on preserving sibling bonds, especially at young ages, provides support for keeping children together when practical.
6. Pragmatic Transitions: The Court’s willingness to order school changes and other transitions, while acknowledging their drawbacks, shows a practical approach that prioritizes safety over stability when necessary.
7. Interim Motion Strategy: Given the affidavit-only context, tailor submissions to emphasize corroborative evidence over narrative volume, anticipating judicial scrutiny of cogency at this preliminary stage.

Conclusion

Tewari v. Tewari represents a thorough application of the Divorce Act’s family violence provisions in an interim motion context. Justice Schabas’ careful analysis of competing evidence and systematic application of the relevant factors makes this decision an important reference point for family law practitioners handling cases involving allegations of family violence and coercive control. The decision reinforces that family violence must be given serious weight in parenting decisions, even at the interim stage, and provides a roadmap for gathering and presenting evidence effectively.

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.