COURT OF APPEAL FOR ONTARIO

CITATION: Lenihan v. Shankar, 2021 ONCA 142

DATE: 20210303

DOCKET: M52203 & M52231 (C68956)

Benotto J.A. (In Chambers)

BETWEEN

Kevin William Lenihan

Applicant (Moving Party on M52203/ Responding Party on M52231)

and

Indira Shankar

Respondent (Responding Party on M52203/ Moving Party on M52231)

Andrew Chris and Joanna Hunt-Jones, for the moving party/responding party

Indira Shankar, acting in person

Heard: February 17 and 25, 2021

REASONS FOR DECISION

INTRODUCTION

[1] The applicant, Kevin Lenihan, is the father of two-year old M. The respondent, Indira Shankar is the mother. They have been involved in high conflict custody litigation for M.’s entire short life. Ultimately, the trial judge awarded sole custody to Mr. Lenihan and the right for him to move to Oregon with M. Ms. Shankar appeals. Mr. Lenihan brought a motion for security for costs.

[2] At the original return of the motion, Ms. Shankar indicated that she wanted to file a response, but the court office would not accept her material because it was not in the correct format. I adjourned the motion to be returned before me and advised the motions office to accept her material notwithstanding its deficiencies.

[3] I have now heard and read submissions from both parties.

BACKGROUND

[4] Mr. Lenihan, an American citizen, lives in Oregon where he owns a home near to his parents and two brothers. He and Ms. Shankar met in Oregon. Very quickly after their meeting, Ms. Shankar moved into his home and they married in June 2017. Ms. Shankar is a citizen of India with permanent residence status in Canada. A month after their marriage she returned to Canada ostensibly to maintain her permanent residence status. The following month, the parties learned that Ms. Shankar was pregnant. Mr. Lenihan moved temporarily to Ontario to be with her. Problems in the marriage arose and they separated in December 2017.

[5] In early February 2018 Ms. Shankar sent Mr. Lenihan a series of text messages indicating that the baby had been born prematurely and was in the neo-natal intensive care unit, breathing on a ventilator. These statements were false. M. was born on March 30, 2018.

[6] M. was born with a condition called craniosynostosis. She underwent three corrective surgeries in 2018 and 2019. The surgeries were successful, and she has no continuing disability, although updates will be required from time to time.

[7] From the day of her birth, M. has been at the center of conflict and litigation. Due to allegations made by Ms. Shankar, the Children’s Aid Society (“CAS”) became involved. So too did the Office of the Children’s Lawyer (“OCL”). The CAS and OCL determined that the allegations were false. Several family court judges conducted case conferences. Finally, the custody trial began on November 17, 2020.

[8] Mr. Lenihan and his mother travelled from their home in Oregon to Ontario two weeks in advance of the trial to sit out their required quarantine period in a local hotel where they maintained their residence throughout the proceeding.

THE TRIAL

[9] The trial lasted for four weeks. The trial judge’s reasons describe its many challenges. On the fifth day of trial, Ms. Shankar, alleging that Mr. Lenihan was not the biological father, filed the results of a paternity test. She then said he was just a sperm donor and filed a “Sperm Donor Agreement” which showed he did not want to be involved with the child. She also filed an email exchange between the father and his counsel which alleged the planning of a criminal act to remove the mother from the litigation. It became evident rather quickly that these documents were – in the words of the trial judge – “transparent and shocking forgeries created by the mother.” This was not the only forgery presented by Ms. Shankar. She also presented an 18-page affidavit from someone who – upon being called as a witness by Mr. Lenihan – said she did not know Ms. Shankar and had never signed the affidavit.

[10] The mother’s two counsel – her tenth and eleventh – withdrew from the record upon realizing their unwitting participation in placing fraudulent evidence before the court. The trial judge granted Ms. Shankar’s request to continue the trial in-person. The day was a Friday. It concluded with witness planning, generous directions on self-representation and the sorting of details for that evening’s weekend transfer of M. to her father.

[11] Thirty hours later, Ms. Shankar boarded a plane for Delhi, India, first class, with a transfer from Delhi to Bengaluru. She did not inform the court, the father or the child. She did not return. Her agent counsel attended on the following Monday, seeking leave for the mother to continue with the trial on Zoom from her family home in India. The trial judge granted the request and ordered her to provide travel and other particulars, including a copy of her return ticket. A return ticket was never provided.

[12] The trial continued until December 11, 2020. Ms. Shankar never returned.

[13] Due to the urgency of the situation, the trial judge gave oral reasons at the end of the trial, to be followed by more extensive written reasons. She said:

Time is of the essence in this decision. There is a young child who has been living in a hotel for the past 20 days with a father who is a resident of Oregon, and a mother who has left the jurisdiction without a return ticket.

I find that it is in [M.’s] best interest to transfer her residence from Ontario, Canada to Oregon, USA where she will have a stable residence, extended family supports, medical care and a good education. In doing so, I acknowledge that this change in residence will remove this case from Ontario jurisdiction.

[14] The trial judge dispensed with the requirement of the mother’s consent for M. to travel. She also dispensed with the need for the mother’s consent to issue a birth certificate, passport (both Canadian and American) and any other travel or identifying documents necessary for Mr. Lenihan’s return to Oregon with M.

[15] As she said she would, the trial judge then provided more detailed written reasons reported at 2021 ONSC 330.

FURTHER REASONS OF THE TRIAL JUDGE

[16] The trial judge’s further reasons examined the extensive evidence and her findings in more detail, all with a view to the child’s best interests. She concluded that Ms. Shankar’s actions were entirely inconsistent with the child’s best interests. She had taken extreme steps to keep the father, the professionals, CAS and the OCL from knowing basic facts. She did not name the father on their daughter’s Statement of Live Birth or obtain a birth certificate. She asserted non-existent court Orders to professionals and the hospital and ignored Orders that did exist, particularly Orders for disclosure. She had a second child but did not disclose the father of her second child or his legal name to Mr. Lenihan, the Society, the OCL or the Court. She repeatedly threatened the father, his family and CAS workers.

[17] The trial judge found that the mother had virtually no credibility because of her repeated lies and attempts at forgery. She was also, according to the trial judge, incapable of putting the child’s needs before her own. She went to extreme lengths to attack the father.

[18] The trial judge found the father caring and competent, attuned to the child’s needs and genuinely willing to foster the mother-daughter relationship while being appropriately protective. Because of the allegations against him by the mother, he was extensively investigated by the Toronto and Peel CAS. He has been further vetted by a Children’s Lawyer. The OCL’s final Report detailed 18 substantive allegations that had been made by the mother against the father, all of which were determined to be false. The OCL found him to be a fully available and capable caregiver. His plan of care is sound and supported by his extended family. He offers the child a stable, healthy, and emotionally rich childhood. The trial judge said that he built a strong attachment with M. in the face of “unimaginable adversity”. She found that the father will meet the child’s medical, educational, and emotional needs. She had evidence from a pediatrician in Oregon who has agreed to continue the required follow-up for her care. The trial judge found that the father was “more than a capable parent”.

[19] Against this background Mr. Lenihan moves for security for costs of Ms. Shankar’s appeal.

SECURITY FOR COSTS

[20] It is rarely appropriate to award security for costs in a child-related matter. This is a rare case. As the trial judge said:

I say this gravely: but for cases of infanticide or abduction, Ms. Shankar’s actions in and outside of this litigation exceed any known to me in the caselaw.

[21] I turn to the legal principles engaged by the motion in the context of these facts.

(1) Applicable test

[22] Security for costs may be ordered pursuant to r. 61.06(1) of the Rules of Civil Procedure, R.R.R. 1990, Reg. 194, when it appears that:

(a) There is good reason to believe that the appeal is frivolous and vexatious, and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) An order for security for costs could be made against the appellant under r. 56.01; or

(c) For other good reason, security for costs should be ordered.

[23] The overarching principle is the justness of the order sought.

(2) Frivolous and vexatious

[24] There is good reason to believe that the appeal is frivolous and vexatious.

[25] The appeal is readily recognizable as lacking merit and therefore frivolous. The trial judge made credibility and factual findings that were strongly supported by the evidence and the mother’s conduct throughout the proceedings, which I have summarized above. In particular, the trial judge carefully considered the child’s best interests and found that they were best served by being with the father in Oregon. Because of the mother’s conduct towards the father and his family, there was no basis to award joint custody.

[26] Ms. Shankar’s appeal raises no errors of law. She challenges the trial judge’s findings of fact and her assessments of credibility. As I have set out, the trial judge gave detailed reasons for her findings. Under these circumstances there is little chance of overturning the result: see Henderson v. Wright, 2016 ONCA 89, 345 O.A.C. 231, at para. 19.

[27] The mother’s conduct toward the father throughout has also demonstrated that there is good reason to believe that the appeal is vexatious.

[28] Ms. Shankar’s motion material runs to approximately 160 pages single spaced. In her written and oral submissions, she makes outrageous claims against Mr. Lenihan including that he has “trafficked,” “abducted,” “illegally brought the child to the United States,” and is torturing M. and keeping her in a cage. She says he is a drug addict and homeless. She has already reported him to Child Protective Services in Oregon. She says that he may “sell” the child or give her up for adoption. She claims that she does not know if the child is alive or dead, then describes their regular Skype calls.

[29] There is clearly good reason to believe that the appeal is frivolous and vexatious.

(3) Insufficient assets in Ontario

[30] Although the mother says she has returned to Ontario, her materials contradict this. Her costs submissions filed on February 5, 2021 repeatedly assert that she lives in India with her family. She states in those submissions that she had no choice but to leave Canada. She also claims to have no money.

[31] During her oral submissions, she said she was in Ontario and working for the government. She has claimed an income of $95,000 per year. Her last filed financial statement, together with her representations throughout the proceedings, indicate that she has no assets available to pay the costs of this appeal.

(4) Other good reason

[32] There are other good reasons to require security for costs.

[33] First, the mother engaged in deceitful and fraudulent conduct as found by the trial judge.

[34] Second, the child is now in Oregon. As the trial judge recognized, future parenting disputes would be addressed there.

[35] Finally, and most importantly: this appeal involves the wellbeing of a child who has been the subject of litigation her entire life. Her best interests must be considered in every step of the proceeding. Her best interests would not be served by a continuation of this proceeding. The impact of this litigation on the child cannot be ignored. As Poupore J., sitting as an appeal judge of the Divisional Court said: “security for costs [is] warranted because of the applicant’s motivation for the appeal, the cost to the parties and judicial resources used to date and the impact of the litigation on the children”: Morwald-Benvenides v. Benvenides, 2017 ONSC 3786, [2017] W.D.F.L. 3729, at para. 13.

MOTHER’S MOTION FOR A STAY

[36] Ms. Shankar included in her responding material a request that the child be returned to Ontario, thereby requesting a stay of proceedings.

[37] The test for a stay of judgment pending appeal is the three-part test set out in RJR-McDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The appellant has the burden to demonstrate that (1) there is a serious question to be determined on the appeal; (2) she will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours granting a stay. These three criteria are not watertight compartments. The court must decide whether the interests of justice call for a stay: Circuit World Corp. v. Lesperance (1997), 1997 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677.

[38] I have already described why there is no serious issue to be determined on appeal.

[39] The child is the one who will suffer serious harm. She is in Oregon with her father, grandparents and extended family. She has a pediatrician. On the other hand, there is no basis to conclude that the mother will suffer serious harm if the stay is not granted.

[40] The balance of convenience favours the child remaining in Oregon with his father and his family.

[41] For these reasons, I do not require responding material from the father for the mother has not met the test for a stay.

CONCLUSION

[42] The motion by Mr. Lenihan for security for costs is granted. Ms. Shankar is required to deposit $30,000 to the credit of the appeal by March 30, 2021.

[43] Ms. Shankar’s motion for a stay pending appeal is dismissed.

[44] Costs of these motions are payable by Ms. Shankar to Mr. Lenihan fixed at $6,500 inclusive of HST and disbursements.

“M.L. Benotto J.A.”