DATE: 20050121

DOCKET: C42594

COURT OF APPEAL FOR ONTARIO

RE: RAINA BHANDARI (Plaintiff/Applicant (Appellant)) – and – VINEET KUMAR BHANDARI (Defendant/Respondent (Respondent in appeal)

BEFORE: MOLDAVER, GILLESE and JURIANSZ JJ.A.

COUNSEL: Jeffery Wilson For the appellant Raina Bhandari

Harold Niman and Katharine Rajczak For the respondent Vineet Bhandari

Dan Goldberg Office of the Children’s Lawyer

HEARD: January 17, 2005

On appeal from the order of Justice Kenneth Langdon of the Superior Court of Justice dated October 21, 2004.

E N D O R S E M E N T

[1] This is an appeal by Raina Bhandari (the mother) from the order of Langdon J. dated October 21, 2004, requiring the mother to comply in all respects with the consent order of Seppi J. dated June 3, 2003 and imposing additional terms and conditions.

[2] The parties are in essential agreement that Langdon J.’s order should be set aside. To the extent that it purports to add to or vary conditions imposed by Seppi J. in her original consent order without the approval of both parties, we acknowledge the mother’s concern that the motion judge provided no reasons for making the changes he did. On behalf of the respondent Vineet Kumar Bhandari (the father), Mr. Niman submits that apart from the costs aspect of Langdon J.’s order, which he seeks to uphold, the remainder of the order should be set aside and Seppi J.’s order should be continued, albeit with a few minor adjustments upon which the parties have agreed.

[1] Between the time of Langdon J.’s order and today, as a result of interim orders made by Chief Justice McMurtry in the context of this appeal, the Office of the Children’s Lawyer was appointed to represent the children. Mr. Goldberg from that office appeared on the appeal and made submissions on the childrens’ behalf. His submissions are based largely on the initial findings of Ms. Frances Cappe, an experienced clinical investigator employed by the Office of the Children’s Lawyer.

[2] In a nutshell, as a result of the investigation conducted by Ms. Cappe, Mr. Goldberg submits that, having regard to the best interests of the children, Seppi J.’s order requires some immediate alterations, most of which are already in place as a result of the Chief Justice’s interim order of December 16, 2004 with one notable exception, namely, a term altering the existing residential arrangements governing the children. To that end, while he concedes that his office requires more time and more information to fully assess the situation, he urges the court to accept Ms. Cappe’s view that in the current circumstances, “the least detrimental interim arrangement for the children would be for them to primarily reside with their mother and to reside with their father alternate weekends from Thursday after school until Monday morning at school”. Mr. Wilson, on behalf of the mother, supports that submission.

[3] In urging this approach, Mr. Goldberg recognizes that it does not entirely conform with the wishes of the children, who, at this time, are requesting that they be permitted to reside almost exclusively with their mother and only on alternate weekends with their father. He also recognizes the concern, expressed by the father, and supported tentatively by Ms. Cappe and others, that the present views of the children may be the product of manipulation by the mother. Nonetheless, given that the children are, at the moment, “extremely entrenched in their decision to change the alternating weekly schedule” and that they “want their views to be heard and … followed”, he points to Ms. Cappe’s overriding concern that if “their views are not, to some degree acknowledged, their relationship with their father will deteriorate much further” and the father “will be seen by the children as thwarting their strongly held preferences.”

[4] As indicated, the father opposes any order that would vary, even temporarily, the residential arrangements contained in Seppi J.’s order. He submits that the mother has manipulated the children and that the views they are presently expressing about him and the living arrangements with him are not genuinely held. He further submits that if the residential arrangements are varied in accordance with the suggestion of the Children’s Lawyer, the mother will use the opportunity, no matter how brief, to further influence the children against him and the children will be left with the “inappropriate message” that they “are entitled to change a court order on their own whim”.

[5] We acknowledge the father’s concern and accept that it is genuinely and sincerely held. By all accounts, the children love him and they have no desire to sever their relationship with him. They simply wish to alter the living arrangements, contained in Seppi J.’s consent order, that the parties agreed to in June 2003.

[6] The facts of this case are most disturbing. The parents have been feuding with each other since the time of their separation in 1998 and unfortunately, they appear to be fixed in their ways, regardless of the repercussions that may have on the children.

[7] On behalf of the children, Mr. Goldberg candidly concedes that in so far as living arrangements are concerned, the best interests of the children are presently unknown. More information is needed before that assessment can be made with any degree of certainty. In the interim, however, he maintains that the benefit that will be gained from altering the childrens’ present living arrangements is likely to outweigh the detriment that will likely occur if the status quo is maintained. In this regard, we note that the living arrangements being suggested by Ms. Cappe essentially track the arrangements that existed from the time the parties separated in 1998 to the time of Seppi J.’s consent order in June 2003.

[8] In all of the circumstances, we are of the view that for the relatively short period of time it will take for the Children’s Lawyer to gather further information, the interests of the children would be best served by permitting them to live primarily with their mother as suggested by Ms. Cappe. In so concluding, we are not to be taken as doubting the sincerity of the father’s position and his genuine concern about the well-being of his children; nor have we ignored the troublesome evidence that the mother may be manipulating the children against the father. We simply believe that for a brief period of time, an adjustment to Seppi J.’s order is required so that all concerned will have the information needed to determine what living arrangements will truly serve the best interests of the children.

[9] Accordingly, we would allow the appeal, set aside Langdon J.’s order and in its place substitute the following order:

(a) the order of Langdon J. dated October 21, 2004 is set aside in its entirety;

(b) the order of McMurtry C.J.O. dated November 26, 2004 appointing the Children’s Lawyer is continued;

(c) the judgment of Seppi J. dated June 6, 2003, shall remain in effect save and except that:

(i) paras. 6 and 23 of the judgment of Seppi J. are suspended;

(ii) the children shall reside primarily with their mother and, commencing Thursday, January 27, 2005, reside with their father alternate weekends from Thursday after school until Monday morning at school. The pickup and drop-off arrangements shall be as set out in paragraph 6. This schedule shall change for Mother’s Day and Father’s Day which shall be governed by the judgment of Seppi J., paragraph 25;

(iii) if a statutory holiday occurs on a Monday when the father should return the children to the school, instead the father shall return the children on Tuesday.

(iv) paras. 8, and 9 of the judgment of Seppi J. are suspended;

(v) the parents shall attend for open counselling with a counsellor that is to be selected by the Children's Lawyer, such counsellor’s fees to be paid on a 50/50 basis by the parents;

(vi) the children shall attend for open counselling with a counsellor that is to be selected by the Children's Lawyer, such counsellor’s fees to be paid on a 62/38 ratio. The parents shall make themselves available as the counsellor deems necessary;

(vii) any requests for information from the counsellors referred to in paragraphs (v) and (vi) above shall be made only through the Children's Lawyer;

(viii) neither the father nor the mother shall show to the children any court document, correspondence or e-mail communication relating in any way to this litigation;

(ix) the mother shall take no steps to enrol the children in a new school;

(x) in the event that the court finds that one of the parties has breached a term of this Order, the party in breach shall pay all the litigation costs of the opposing party and the Children's Lawyer arising from such breach forthwith on a full indemnity basis.

(c) this interim order shall remain in effect until June 30, 2005 or further order of a court of competent jurisdiction.

COSTS

[10] If the parties are unable to agree on costs, they may make brief written submissions to the court (not to exceed three pages double-spaced) within ten days of the release date of these reasons.

Signed: “M.J. Moldaver J.A.

“E.E. Gillese J.A.”

“R. G. Juriansz J.A.”