SUPERIOR COURT OF JUSTICE
CITATION: Rai v. Rai, 2012 ONSC 4267
COURT FILE NO.: FS-10-69975-00
DATE: 2012 07 20
ONTARIO
B E T W E E N:
S.R.
George F. Brant, for the Applicant
Applicant
- and -
SHERAPARTAP SINGH RAI and MADANJIT SINGH RAI and
PARMJEET KAUR RAI
Lorna M. Yates for the Respondent , Sherapartap Singh Rai
Nicole J. Tellier and J. Alex Finlayson, for the Respondents, Madanjit Singh Rai and Parmjeet Kaur Rai
Respondents
HEARD: January 9, 11, 16 to 20 and April 16 to 20, 23 to 27 and April 30, May 2 to 4 and June 21, 2012
REASONS FOR JUDGMENT
Seppi J.
[1] The children in this contentious custody case are the unwitting victims of an extended family’s shattered dream. The applicant Dr. S.R. is the mother of S.R.1. and A.R., born […], 2003 and […], 2005, respectively. From the time she completed her studies at New York University (NYU) to qualify as a dentist in Ontario she has been asking for custody of her children. This request, which she communicated to the respondent grandparents on July 3, 2010 when the children were six and five years of age was, and continues to be vigorously opposed by the respondent paternal grandparents, Madanjit Singh Rai and Parmjeet Kaur Rai.
[2] The grandparents have been the primary caregivers of the children with the consent of the mother and father, by what was to have been a temporary arrangement, while the parents focused on achieving their professional qualifications. The grandparents have continued in that role despite the mother’s strong opposition and tireless efforts over the last two years to be the primary parent of her children. The respondent father, Dr. Sherapartap Singh (Rahul) Rai is currently living with his parents. He admits to not having the ability to care for the children at this time while he is focusing on his addiction recovery.
Issues
[3] The issue of custody was expedited to this trial after a jointly commissioned assessment report emphatically declared the children’s best interests required them to be removed from the grandparents’ care because they “are in danger of sustaining considerable emotional harm if they are left in the custody of their grandparents”. The respondents submit the psychiatrist assessor’s opinion and report are seriously flawed and should be given no weight. They maintain the children’s best interests require them to stay with them in their house in Brampton where they have lived for most of their lives. The grandparents deny any alienating behaviour and say they always tell the children they need to go to see their mother.
[4] The central issues are the custody of S.R.1. and A.R., as well as the arrangements for access. The grandparents’ claim for child support is also to be determined. The father has consented to begin paying child support after he resumes remunerative employment.
Background
[5] The dispute over custody is between the respondent grandparents and the applicant mother. The children’s father, Dr. Rahul Rai, is presently not involved their care. He is a physician and has voluntarily withdrawn from his medical practice in Leamington, Ontario due to a serious drug and alcohol addiction, which had been escalating out of control well before the mother returned from her studies in New York. The father and mother separated in August of 2008 when it became obvious the relationship had irretrievably broken down and would not withstand the father’s addiction and marital infidelity.
[6] The father has been in compliance with the strict requirements of his recovery program. He lives with his parents in Brampton. He has not assumed any parental responsibilities to his two sons and it appears he is unable to do so due to his condition. He takes the position the children should remain in his parents’ primary care. Unlike his parents, however, he does acknowledge the positive influence of the applicant and need for the children to have a strong relationship with their mother. He is and has throughout the marriage by his own admission been caught in the middle of the conflict between his parents and former wife. He is again dependent on his parents both financially and emotionally. His recovery program requires strong support from his parents who are helping in this very difficult undertaking.
The Children
[7] During the trial, following the grandparent’s request for me to interview S.R.1., I conducted an interview of both children together and individually in chambers. Despite the evidence of the grandmother at trial about how stressed and disturbed they were about the weekends with their mother, that was not their message to me. Both boys were animated and very comfortable talking about their parents and grandparents, their schooling and activities. Both boys are obviously bonded with all of their caregivers. Their main reason for preferring Brampton over C., where they spent last summer with their mother, is that they have more friends and cousins in Brampton. They also expressed disappointment about not being able to go to work with their mother and her not staying home with them, implying they need and want to be with her more.
[8] S.R.1.S.R.1. is now eight. To date he has attended the local public school in Brampton while maintaining his residence at his grandparent’s house. He is a bright and outgoing boy. Subject to some early difficulties with printing, he does well academically. He is athletic and loves playing basketball with his brother and father. Except for some bouts of asthma and minor health issues he is relatively healthy.
[9] S.R.1. has many friends in the Brampton area. He has also made several friends where his mother lives, despite the limited time he has spent there. As the older child he often takes the lead and is protective in the company of A.R.. He also dotes on a much younger cousin, Sahib, who lives in Texas and visits regularly.
[10] S.R.1. has a loving bond with both his grandparents. He has recently been acting out towards his grandmother asserting demands, inappropriately attempting to dominate her and take advantage of her indulgence. He is amenable to both his mother and father’s discipline, but has shown a tendency to play one adult against the other, particularly as it pertains to taking advantage of the conflict between his mother and grandparents. He has a loving bond with both his parents despite their long periods of absence from him.
A.R.
[11] A.R. is considered a “baby” by his grandfather. In reality, at age seven he is only fourteen months younger than S.R.1.. He is obviously coming into his own and shows a budding confidence.
[12] A.R. is more introverted than S.R.1., recognized to be a particularly intelligent and sensitive child. He himself believes and asserts he is the best in his class. He still looks to his brother for the lead but is becoming more of an individual as he matures. Like S.R.1.S.R.1. he loves to play basketball and talked about playing basketball with his brother and father as well as his mother. He believes he is an even better player than his brother. Despite health challenges at birth he is now relatively healthy and normal in his physical development. He is affectionate with both his grandparents, his father and with his mother when he is with her.
The Parties
The Mother
[13] The mother, Dr. S.R.S.R., testified at length about her parental role and the family dynamics which have led to this dispute. She presents as highly intelligent and capable, with a balanced account of the facts. There is a tortured history of efforts the applicant has made to spend time with her children over the last two years. Her fervent wish to be with her children and efforts have been systematically opposed and thwarted by the grandparents. She told the court about this history in a calm and coherent manner. Indeed when the court reviews the entire evidence about the past events, her evidence understates the extent of the manipulation she and the children have endured as a result of the grandparents’ interference in her relationship with the children.
[14] Counsel for the grandparents challenges her credibility on the basis of testimony which they claim was deliberately false or misleading. They point to her evidence in chief which over stated the number of times she returned to Brampton during her studies at NYU. She communicated loss and disappointment over the fact her children were not with her for graduation. Yet she admitted she did not inform her in-laws of the graduation dates, which could well account for their non-attendance.
[15] The applicant did not conceal this latter fact. She informed the assessor as confirmed by his notes in evidence. She candidly admitted to the inaccuracies in her testimony when presented with specific dates of her presence in New York on certain dates.
[16] Despite these relatively minor challenges the mother on the whole was a credible witness, and her testimony is reliable. There was no attempt on her part to mislead the court, as alleged. It was conceded from the beginning she was away during most of the three years at dental school. Her memory and account of events is sound on material facts, and is consistent with other reliable evidence. On important points relating to the prolonged denial of and interference with her access by the grandparents, her evidence is amply supported by the volume of correspondence between counsel and the record of interlocutory proceedings during the events. Her plan for the children in her custody is sound and focused on the children’s best interests.
The Father
[17] The respondent father, Dr. Rahul Rai, was generally forthright in his evidence as told from his perspective. He has admitted to his irresponsible conduct which caused the marriage breakdown. Consistent with the applicant’s account about life with her in-laws, he fairly described the conflict between his former wife and his mother, to which he became the helpless intermediary. He did not, however, admit to the extent of control exerted over him by his parents when he was a youth in the way he had originally explained it to the assessor. He excused the inconsistency by claiming his sobriety was fragile at the time of his first meeting with Dr. Goldstein, thereby implying he did not know what he was saying.
[18] The assessor’s opinion on the other hand about this marked inconsistency in the father’s account, which became evident during his second meeting after he had returned to his parents’ home, is that the original open communication of his feelings was more honest and accurate, as compared to what he said after returning to his parents’ home. Dr. Goldstein’s impression about this is correct. The testimony of the father at trial shows he is conflicted, confused and still caught in the middle of this very ugly dispute between his parents and former wife over their children.
[19] The evidence as a whole supports Dr. Goldstein’s conclusion that the father’s feelings as a teenager of being controlled by the cultural family values, which were contrary to those of his high school peers, contributed to his ultimate rebellion. He told Dr. Goldstein he deliberately did not achieve his best marks in the hope of having to attend medical school away from home. Given his intellect and abilities, this is probably true. Even now he talks about the events in his life and these proceedings as having been “prefabricated”, implying he still feels he has no control over his life. He has a long way to go in his recovery and is accessing the appropriate counselling and therapy resources.
[20] Viewed in the context of the evidence as a whole the father’s continued loyalty to the cause of custody being pursued by his parents in this litigation is understandable; but it is not convincing in his current circumstances of renewed dependency. It is focused on his parents’ wishes and family values rather than the best interests of the children.
[21] His expressed wish at trial of the children needing to strengthen their relationship with their mother is genuine and a true expression of a father’s love and concern for his two young sons.
The Grandmother
[22] Parmjeet Kaur Rai, the children’s paternal grandmother, presented as a loving but overwhelmed caregiver. Despite having to testify through an interpreter her expression was animated and sincere about her care of and devotion to A.R. and S.R.1. over the years. She was obviously involved in the care of both boys from birth.
[23] The current conflict is extremely distressing for her. As the boys mature she is experiencing serious difficulties in adapting to a more disciplinary role. Although she now finally drives the children to their mother in C. on weekends, as required by court order, the task is very difficult for her. She claims she is diligent in attempting to have the children prepared to go and arrive on time, but the evidence is clear there is a lack of effort in her actions to communicate to the children the importance of their time with their mother as ordered by the court. There is credible evidence about how one of the children was still at a friend’s house in Brampton, when by court order he was supposed to be arriving at his mother’s house in C.. Despite being the primary caregiver of the children for several years the grandmother has been unable and unwilling to structure a proper routine for the children to facilitate their relationship with their mother. This conclusion is supported by her own evidence as well as the evidence of the mother and Dr. Goldstein.
[24] Mrs. S.R.’s strongest emotions exhibited during her testimony were not about her love of the children. She was most upset and angry about losses she experienced as a result of sacrificing her own needs to look after the children. Clearly she has done so. She cried when describing how she missed her daughter’s betrothal ceremony and part of the wedding ceremony because she was looking after the two little boys.
[25] There was, however, no recognition shown of the harm caused to the psyche of the children when both she and her husband embarked on a campaign to keep the mother from her children for their own selfish reasons. Her evidence that the children did not want to go to their mother did not acknowledge the instrumentation of her own actions in fostering in the children a fear of separating from her when they go away from “the Brampton house” with their mother. Sadly, the impression she left by her evidence is one of a loving, but misguided grandparent, whose own need to keep her grandchildren close has trumped the benefit of letting them go to develop a much needed relationship with a mother who loves them.
The Grandfather
[26] Madanjit Singh Rai, the children’s grandfather, is bitterly disappointed in what has been a colossal loss to his family. His brilliant and successful son, the doctor, married the perfect girl. The end of that marriage shattered his hope and dreams of these two young professionals building a life together as part of his extended family. As is clear on his evidence he was a supportive father to both his children and the applicant. His son and daughter-in-law were given credit cards, for which he was the primary debtor. With his wife he agreed to look after their children so they could pursue their professions which he wholeheartedly supported.
[27] Even after he was informed about serious problems in the marriage and his son’s rebellion into alcohol, drugs and marital infidelity, he pushed to have it fixed by enlisting the applicant to reconcile and opening a medical office in Brampton for his son. He assumed his daughter-in-law would come and live with him and his wife, even after his son was living with another woman. Believing his son would eventually come home and his daughter-in-law would capitulate for the sake of seeing her children, he orchestrated the plan to keep the children from the mother when she announced her refusal to come and live in the Brampton house. He is angry and resentful towards the mother for all the money he spent on her and what he perceives as selfishness and ingratitude on her part.
[28] Dr. Goldstein describes the grandparents’ state in this lost and unrealistic hope as “delusional”. On the evidence at trial it is clear this impossible expectation is what unrelentlessly drove the grandfather at the moment the conflict began. The children, whose relationship with their mother was attacked as a result, have become the victims of Mr. and Mrs. Rai’s impossible dream.
[29] By the time this matter came to trial, over a year and a half had passed from the original push to have the mother return to the family. Mr. Rai’s evidence was targeted at showing the court what a neglectful mother she has been. Dr. Goldstein’s notes of the grandfather’s meeting and his conclusions are consistent with how Mr. Rai presented his views at trial. His credibility was tainted by his admitted belief that family loyalty always wins over honesty, even to the point of lying under oath in his examination with the excuse that he had to keep his son’s drug addiction secret on instructions from the police. His evidence is therefore not given any weight on disputed facts, unless supported by credible evidence.
[30] This litigation has no doubt shattered Mr. Rai’s hope in July 2010 for the family to be reunited. Even then that hope was completely unrealistic having regard to the circumstances of his son’s addictions and end of his marriage. Despite this, it has become a matter of principle for Mr. Rai to keep the grandchildren within the family fold and in the Brampton house. Mr. Rai has invested so much into his plans for the extended family, which included his son the doctor and daughter-in-law the dentist. When those plans fell apart he blamed the applicant and set out to destroy her status as the children’s mother when she refused to give in.
Collateral Witnesses
For the Applicant
[31] Shelley Naegli is a young woman who works as a dental assistant at the […] Clinic. Her evidence added information from someone outside the family about the ability of the applicant to meet the children’s needs. She describes Dr. S.R. as warm, calm and friendly with her patients, a dentist who takes time to talk to her patients and makes her patients feel comfortable. Dr. S.R. is the one who sees the majority of the young patients at the clinic as she is well able to manage them.
[32] Ms. Naegli is also familiar with how Dr. S.R. interacts with S.R.1. and A.R. when they come to her office, and outside the office as, for example, swimming at the pool. She says the children are happy, “always touching her”, and Dr. S.R.’s interaction with them is positive. She also witnessed an occasion after the children arrived in C. with the grandparents and had to be persuaded by the mother to get out of the car, a task she was able to achieve without upsetting the children. To her the boys are “a true joy to be around when they are with their mother”.
[33] Chrystal Gagne also lives in C.. She testified about her observations of the mother with the children. She works as a supply secretary for the local school board. For four years until September 2011 she worked at the dental office as a receptionist and was there when Dr. S.R. started in August 2010.
[34] Her description of the applicant was that she is a “breath of fresh air” and “always cheerful”. She saw the children for the first time on July 2, 2011, and described their reluctance to get out of the grandparents car when they first arrived. She said with Dr. S.R. talking to them and the police help, it still took one hour and forty minutes to two hours for them to come out.
[35] Since then, Ms. Gagne has seen the boys playing with her two nephews and being walked to the day camp by their mother. Her description of the relationship is that it took a day or two for them to warm up at first, and they again needed time to warm up after they returned from the visit with their grandparents. She said when the children talked back Dr. S.R. would take time to reason with them, and that the kids respect her, were good with her and did not give her a hard time.
[36] Dr. Charu Sharma is a 37 year old dentist, married with an 8 year old daughter. She is a close friend of the applicant and the weight of her evidence is assessed in the light of their close friendship. Dr. Sharma has known Dr. S.R. from 2007 when they both started the dental program at NYU. She too left her child in the primary care of a grandmother during her studies, having the child returned to her when she finished school. Although she was partisan favouring Dr. S.R., she was nevertheless credible in her evidence.
[37] Both young women had been dentists in India and were admitted into the advanced placement into 2nd year at NYU, thereby able to complete the program in three rather than four years. Dr. Sharma’s evidence was helpful as a description of the gruelling study and clinical schedule involved during those years, with limited time off. This was relevant in regard to the criticism and attack by the grandparents on Dr. S.R. for not returning as often as she should have to Brampton to see the children. Dr. Sharma’s evidence supports that conclusion that frequent and extended absences from NYU were not possible if Dr. S.R. hoped to be successful in her plan to qualify as a dentist.
[38] Dr. Sharma also described Dr. S.R.’s fear of going back to her in-laws house after she had finished her program, despite being advised by one lawyer to “just pick up her kids”. She testified about the very competitive market for dentists in the GTA, where she makes a significantly smaller income as a dentist than does Dr. S.R. in her C. practice. This is evidence which gives an understandable perspective to Dr. S.R.’s decision to take a job outside the GTA.
[39] Dr. Sharma also described how she has observed Dr.S.R.’s devotion to her children when they are together on overnight stays and for social occasions.
For the Respondents
[40] Inderjit Grewal, a friend of the family, has known the Rais since 1979. She is a social worker at the Halton CAS. She credibly described the Rais as hardworking, kind, generous and supportive. She said Mrs. Rai is a gracious hostess and she keeps her house “immaculate”. She expressed the view that both of their adult children, Lovleen and Rahul, have been raised to be responsible adults. Ms. Grewal observed Rahul and S.R.’s house in Windsor. She also testified about Mrs. Rai being notably absent from the parents’ ceremony while attending to the two young boys at Lovleen’s wedding.
[41] Ms. Grewal was informed by the Rais that one of the boys said his mother had slapped and threatened him, so she told them to report it to the CAS. She said Mrs. Rai did not do that, and observed the grandmother being as “very nervous”, so she herself called the CAS to report the alleged slap.
[42] Mike Aziz is a neighbour who lives across the street from the respondents. His evidence, as an unrelated third party, relates to the relationship of the grandparents with the children. He described the area as a multicultural neighbourhood and said the Rais are typical, normal, friendly, and good neighbours. He has seen the grandparents interacting with the grandchildren and said they treat them well from what he has seen.
[43] David Brewen is a private investigator hired by the Rais on August 8, 2011 to conduct surveillance on the applicant to determine if booster seats were being used by her. The value of his evidence is discussed under the findings of fact below. His evidence is relevant to and supports the court’s findings about the motives of the grandparents to discredit the applicant, contrary to their verbal declaration about being supportive of the children having a strong relationship with their mother.
[44] The witness Inderjit Ghuman is the grandmother’s sister. She and her children have lived with the Rais from time to time, most recently from October 2004 to August 2007. She still has a key and free access to the house. She is obviously very close to the respondent grandmother.
[45] Ms. Ghuman testified about the grandparents often driving the children to Windsor to be with their parents after S.R.1. started to live with them in December 2004. She described how she, the grandmother, and the aunt Lovleen all helped looked after S.R.1. when he was a baby, even when the mother was in Brampton looking after him.
[46] Ms. Ghuman also testified about meeting the applicant at the Brampton house in July 2010. She said the applicant told her she did not live there, and was just there to get the children.
[47] Ms. Ghuman has assisted in getting the children ready to go to their mother in C.. She has frequently accompanied her sister on these trips. She gave details about how the children always resist, and say they do not want to go. She heard A.R. tell the grandmother she is not a good mama because she makes them go. She explained how her son Vickram took a video of the children resisting. She described the children’s trauma on the car trips and events which caused the delays in getting the children to C. on time. She emphasized how the grandmother had great difficulty in managing the children who have been extremely uncooperative on these trips. At some point, while describing these problems, she spontaneously became emotional and wept about how hard it is for her sister to endure this ordeal.
[48] During one trip in February they ran into bad weather. Her account supported what her sister said about Dr. S.R. insisting the children be brought to her home regardless of the weather. This contradicts the more credible account of the applicant about how she suggested they stay in a hotel in Cobourg and resume the trip in the morning. Despite what Ms. Ghuman described as severe winter weather, she and the grandmother drove the children to C[…] that night.
[49] When asked what the effect would be on the children if they were to no longer live with their grandparents, she wept again. In what seemed like a rehearsed attempt to manipulate the court she said, “Think of the poor kids and what they will go through and what kind of life they will have”. She said she believes the grandparents love and care for the children even more then their own children.
[50] Ms. Ghuman feigned ignorance of the marital problems and of Dr. Rahul Rai’s addiction. Incredibly, when asked what she knew about her nephew, a medical doctor home with his parents and not working, her response was, “All I know is that he is home and does not work - I never asked”. Despite correspondence confirming her intended supervision of access at the house, she denied such arrangements. A number of otherwise proven facts were denied by her, which she attempted to explain by saying, she does not pry.
[51] Overall, Ms. Ghuman’s evidence came across as a mirror of the grandparents’ position. She was not a credible witness. Instead of objectively describing the events she had witnessed, her testimony on controversial issues was generally an unsuccessful attempt to tailor her answers to what she believed her sister would want her to say. Often her response to unanticipated or more difficult areas of questioning was to profess ignorance.
[52] Ms. Ghuman is a very loyal and helpful younger sister to the grandmother. She acknowledges always helping the grandmother when asked. Her evidence however bears little weight when in contradiction to what other more credible witnesses have said.
[53] The witness Vickram Ghuman is the grandmother’s nephew, Ms. Ghuman’s son. He lived in the Rai household with his mother in 2005 to 2007. He described the grandparents as loving caregivers of the children and called the family peaceful. He said it was a large extended family with frequent get-togethers for birthdays and special occasions.
[54] Although he claimed to be close to his cousin, Rahul the children’s father, he said they never shared personal matters. He said he had no idea about the marital problems or the dispute over the children before he was asked to drive to C. with the grandfather in July of 2011. The second time he went there he took a video. He said it took 45 to 50 minutes to get the children out of the car. He said the grandparents never get angry, never raise their voice and never physically force the children to get in or out of the car. He said he has never heard them say anything negative about the applicant.
[55] Mr. Ghuman was credible but his evidence is limited to matters the Rais have chosen to share. His knowledge of the children is of limited observations. This became clear when he said he had no knowledge of A.R.’s club foot, despite having lived in the Brampton house at the time of A.R.’s surgery and extended rehabilitation for that condition.
[56] Lovleen Grewal is the grandparents’ daughter, the father’s sister, the children’s aunt. She now lives in San Antonio, Texas, with her husband and son, Sahib, age 4. The impression the court had from the applicant’s evidence was that there had been a close friendship between her and her sister-in-law Lovleen. Pictures of the two of them together are in evidence. It was therefore surprising when Ms. Grewal presented as mean-spirited against the applicant and negatively judgmental of her decision to study and be away from her children to qualify in her chosen profession.
[57] In chief, Lovleen Grewal implied her own parental role to be superior to that of the applicant, because she chose to leave her studies in medicine to be a full-time parent. Yet she was evasive about her real academic status when she left medical school. Mimicking her parents she incredibly claimed she was “shocked” to learn on July 3, 2010 that the applicant was not returning to live with her parents in Brampton. Yet she knew as early as 2007 that her brother was in an intimate relationship with another woman in Windsor. She refused to admit facts which would support a favourable conclusion about the applicant’s bond with her children. For example, she claimed she was not aware of A.R. counting down the days to see his mother, despite this being a common event in the Rai household when the applicant was in New York, according to the grandmother’s evidence. She claimed her parents did not tell her all the details about the custody dispute, but was very opinionated about the mother’s “abandonment” of the children having caused the children to resist regular visits.
[58] Ms. Grewal’s evidence is given little weight as a result of her obvious bias on the central issue.
Findings of Fact
[59] Dr. S.R.. is 35 years of age. She was born and raised in India. She now lives in C., Ontario, where she works fulltime as a dentist in a large local practice which includes work in B. one day a week. She is obviously very capable, successful and extremely hardworking, having gross billings in excess of $500,000.00 in 2011, her first full year as a dentist after re-qualifying in North America. As an associate her income in 2011 was 40% of the gross billings, about $230,000.00.
[60] Dr. S.R. married the respondent, Dr. Sherapartap Singh (Rahul) Rai, in summer 2001 when they were both 25 years of age. It was an arranged marriage in the Sikh tradition. She met her mother and sister-in-law when they visited India before meeting her future husband, whom she met two days before the wedding. As it took over eight months for her entry into Canada their courtship continued by phone and email between India and Canada after the ceremony. Her husband sponsored her. They were compatible as a couple, fell in love, and the early years were very happy. She became a Canadian citizen in January, 2006.
[61] The husband, Dr. Rahul Rai was born and raised in Canada. His medical studies were in the U.S. at the time he and Dr. S.R. were married. Initially the couple briefly lived in New York City, and then in Windsor for eight months while he continued his clinical rotations as a medical student in Detroit. There was a break in his medical studies after September 2003.
[62] By this time the couple was expecting their first child and they made their home base in Brampton. Dr. S.R. was also well into her efforts to re-qualify as a dentist. She continued to study in order to upgrade her knowledge commensurate with North American standards. On December 2, 2003 when she wrote one of the entry exams she became unwell. After being hospitalized she gave birth to S.R.1. on […], 2003. The couple remained in Brampton and lived as one extended family with the husband’s parents for about six months after S.R.1.’s birth.
[63] Dr. S.R. continued to study to qualify for entry into a North American dentistry program. She was encouraged in this endeavour by both her husband and her father-in-law. As the husband was required to return to Detroit for his three year residency, the couple bought a house in Windsor in June 2004 with the financial help of his parents. Dr. S.R. described her relationship with her husband during this period from June 2004 to June 2006 as “perfect”, despite the obvious challenges of his long hours, their sleep deprivation, the birth of A.R. in […] 2005, and commuting between Brampton and Windsor by the grandparents and the young couple.
[64] A.R. was born with club feet. The couple was alerted to the condition as a result of an ultrasound in the fall of 2004. Dr. S.R. testified her husband arranged to have S.R.1. relocated to the Brampton house in December 2004 so she could focus on her pregnancy having regard these problems. The grandparents in their evidence made a big issue of this, claiming the couple effectively dumped S.R.1. on them without their consent when he was just a year old. More accurately it appears this was a family decision and the grandparents at the time very generously were more than happy to help their son and daughter-in-law. The grandmother’s joy was evident even now in her evidence when she told of those early happy years with the infant grandsons.
[65] Dr. S.R. had a much clearer and more specific recollection of the timelines of the events in the family than did the grandparents or Dr. Rahul Rai. The latter admitted he was in an alcoholic and in a drug-induced haze during much of the relevant period, and deferred to the applicant for many important facts. The respondent grandparents in their evidence were intent on proving the mother had neglected her children by leaving them in Brampton with them and callously wasting their money while living the high life in New York. Consequently their testimony is not reliable in regard to facts in which it conflicts with the testimony of the mother, who was balanced in her account.
[66] Dr. S.R. explained S.R.1. was left in Brampton on December 7th, 2004 when she was expecting A.R.. She remained there for about a week to ten days before leaving to join her husband in the Windsor residence. The grandparents frequently came to Windsor with the baby S.R.1., at first over Christmas and New Year’s for several days, and again a week before A.R. was born on […], 2005.
[67] As expected, A.R. was born with club feet. A mutual decision was made for the mother to move to Brampton to facilitate his treatment. His feet were placed in a cast the day after he was born, which needed to be changed every two and a half weeks. The mother was now in the grandparents’ home with the two boys while the father remained in Windsor. She alternated for a week to ten day periods between Windsor and Brampton at the time. As she did not yet have her driver’s licence either the grandmother or grandfather would drive her for these commutes. The “shuttle” between Windsor and Brampton continued from March 2005 until June 2007, when the applicant went to New York for her dental studies.
[68] Until she left for NYU the mother had been primarily responsible for the two babies. At trial the applicant acknowledged receiving “a lot of help” from her husband’s family. She said she was “a little scared” by the overwhelming needs of the two babies, both of whom required special care. S.R.1. had asthma, which added to the difficulties. A.R. was having regular painful treatments for his club feet. Although the grandparents’ evidence portrays the mother as uncaring and unappreciative, Dr. S.R. testified their help was “greatly appreciated”. A.R. required surgery in the summer of 2005. He was in a lot of pain during his three week recovery after that. The mother noted everyone was hovering over him and of great assistance in his care.
[69] During this time Dr. S.R.S.R. was still working towards qualifying for admittance to a dental program. She spoke of the painful “boots and bar” routine required for A.R. after he had recovered from the surgery and was walking. She had to leave him for three weeks in 2006 during preparation for one of her exams, and when she returned A.R. refused the boots and bar schedule as the grandparents had discontinued it. She said this caused her some concern at the time. It was one of many differences in parenting decisions in which the mother was overruled by the grandmother.
[70] In Dr. S.R.S.R.’s mind the problems in the marriage started in 2006. She was spending more time in Brampton for the children, while the husband remained in Windsor. She testified she wanted to spend more time with her husband but was overruled by her mother-in-law. She began to feel overwhelmed in that household and testified her mother-in-law had “unrealistic expectations”, and that “nothing she did was good enough”. The evidence of the children’s father supports this conclusion. He testified about being caught in between the conflicts that arose as a result of his mother’s criticisms of his wife. The children’s mother acknowledged the father’s efforts at being a buffer between her and his parents. But in the end she felt her voice was always suppressed.
[71] By this time the grandparents were not as interested in accommodating the needs of their son and daughter-in-law to be together. They had both children at the Brampton house, which no doubt was an onerous responsibility for them. They expected their daughter-in-law to be there too. If she wanted to see her husband Dr. S.R. often had to take the bus from Toronto to Windsor, and the children would stay in Brampton with the grandparents. She told her husband she wanted them to be in Windsor with them, but he sided with his parents and opted for the children to be in Brampton.
[72] By August 2006, after one of her exams, Dr. S.R. noticed things had changed between her and her husband. He was going out with his friends and she would get calls late at night from him at the casino. She became upset with him because he was not coming to Brampton to spend time with her and the children. Her husband was pressing her to stay in Brampton to keep his mother happy, no doubt enjoying his freedom to socialize without family responsibilities. Dr. S.R. testified she became very stressed during that period and wanted her husband to rescue her.
[73] There were conflicting expectations being placed on the applicant to be a perfect mother, a perfect wife and daughter-in-law while she was also still expected to be a professional woman diligently pursuing her studies. She testified that before her admission to NYU her father-in-law was being taunted by his peers about why she was not in dental school. Her mother-in-law, on the other hand, wanted her to take more responsibility with the children.
[74] While all this was going on, the applicant was notified of her interview and acceptance to NYU in February 2007. According to the applicant this made everybody happy except her mother-in-law. Her husband encouraged her to go so she could establish herself as a dentist as soon as possible. He was finishing his residency on June 2nd, 2007. She was scheduled to begin her studies at NYU on June 4th, 2007.
[75] The plan between her and her husband, as supported by the grandparents, was for her husband to move back to Brampton after she commenced her studies to help take care of the children with the grandparents. She believed the commute would now be between New York and Brampton, instead of between Windsor and Brampton. She said when she went to NYU she trusted her husband’s and his family’s word on that. She felt her husband had paid his dues for three years to qualify as a doctor and now she had the same opportunity. In addition to her student loans and help from her parents, she had the financial support of her husband and his parents to pursue her education.
[76] It was three months after the applicant started her studies that everything fell apart. She saw an email of her husband which was descriptive of his intimacy with another woman. The husband testified he became involved and ultimately intimate with a woman named K. in Windsor, whom he met at a strip club there. The relationship resulted in their cohabitation and a form of marriage that took place in Las Vegas. Dr. Rahul Rai continues to be in communication with K. and has named her as his “spouse” contact in his addiction recovery contract filed at trial.
[77] Dr. S.R. testified she had a breakdown when she learned of the intimacy. It took weeks for it to sink in. She felt ignored as a wife though he knew she loved him. He admitted the affair to her and told her it had been going on since January 2007. She tried to save the marriage. She spoke to her husband’s sister, Lovleen, who lived in California at the time. Her sister-in-law asked her not to tell their parents.
[78] According to the testimony of Lovleen, Dr. S.R. did tell her about the adultery, but sometime later it was her understanding this was no longer an issue. Lovleen and the grandparents firmly, but not convincingly, took the position at trial that they knew nothing about the couple’s marital separation and Rahul’s addiction until July 3, 2010 when the applicant came to the respondent grandparents asking for her children. This is simply not true. There is evidence of a discussion among them which included Dr. Rahul Rai and his parents after which he reassured his parents his behaviour would be corrected. According to the grandmother her husband had a breakdown in his car after one of the trips to Windsor and confrontations with their son who was obviously avoiding them and ignoring his family.
[79] By this time it had become obvious Dr. Rahul Rai was not going to relocate to Brampton as planned. He told his wife he could make more money working full time in Leamington. He promised to relocate to Brampton in six months. Later she learned he had actually signed a one year contract as an emergency physician at the Leamington Hospital. The applicant testified she believes the real reason was not the money but it was to stay with his girlfriend, which is probably true.
[80] The grandparents’ solution after hearing about the marital problems was for the applicant to take more trips to see her husband in Windsor to rebuild their relationship. This is credible evidence from the applicant, which is supported in the context of the evidence as a whole. At trial the grandparents, implying the mother did not care about her children, made much of the fact that she did not come to see the children much during this period. This, of course, would not be possible if she had to stay in Windsor to reconcile the relationship with her husband, while also studying at NYU.
[81] The applicant explained she was constantly confronted with the evidence of the girlfriend’s presence when she made efforts to be in Windsor with her husband. She found K.’s toiletries in the bathroom and towels strewn about. She finally realized this was not a “fling” for her husband. He never apologized. Instead he began sending her abusive texts in which he blamed her for the marital failure and taunted her about having no place else to go, pointing out she had no family in Canada and her kids were with his parents.
[82] The husband’s father also told the couple he would never allow the breakup to happen, and emphasized it was not good for the children. The applicant described her husband’s behaviour as that of a ten year old with everyone chasing him and telling him how he should behave. Ironically the husband in his testimony at trial now agrees and implies he is still like a child. Dr. Goldstein, the assessor who is an experienced psychiatrist, attributes the husband’s rebellion to his lack of control over his own life as a teenager due to an overly strict upbringing, which is what he himself told Dr. Goldstein but now denies.
[83] In August 2008 the husband went to New York. The applicant believed he was coming to reconcile with her. Instead he brought K. with him telling his wife he wanted to “think things through”. He insisted on having the two women meet. According to the applicant K. became agitated when they arrived together at a lounge where K. was waiting for the respondent husband. She showed the applicant the ring the respondent had given her.
[84] That was the pivotal moment for the marriage breakdown and defined the separation. The applicant told her husband if he leaves K. she will forgive him. It was not to be. At that moment he walked away with K., a clear signal to the applicant the marriage was over. He left her a note, “I love you but I love her too”.
[85] Dr. S.R. testified that after that encounter with K. she called and told her in-laws and her brother. The grandparents were in denial and wilfully blind to the obvious. The applicant testified when she spoke to her in-laws about this they said “don’t worry we will fix it”. Her brother told her to leave her husband.
[86] As stated above, this court does not believe the respondent grandparents that they never knew about the marital infidelity and the separation. The detailed account of Dr. S.R. is clear and convincing on this issue. Her evidence about this period of time is preferred over that of the respondent grandparents. Having regard to all the facts about their son’s activities and their close family ties, their evidence of being totally oblivious to these facts is not truthful.
[87] The applicant’s parents visited from India in August 2008. There were talks among the family members at that time. The husband’s father did try to fix it. He had built a modern medical office in Brampton for his son. But after a short attempt in December 2008 to be the dutiful son, Dr. Rahul Rai returned to his girlfriend in Leamington. By then his relationship with K. had endured for close to two years. By then he was also heavily into drugs and alcohol and the seedy life of that subculture in Windsor. According to the applicant’s testimony, which I believe, the husband’s mother told her and her parents “no matter what, she [the mother] won’t get the kids”.
[88] When the Brampton medical office was ready in about December 2008 there was an attempt at reconciliation. Dr. S.R. testified when the applicant swore to her on his children’s lives his relationship with his girlfriend was over she “fell for it”. She had to fly back to New York after the Christmas break. When she called her husband on his cell phone on January 2, 2009, K. answered. The applicant said she then realized her husband would not change. She told his father, “Rahul won’t change”.
[89] Nevertheless her father-in-law ordered them to work it out. She was told she can’t see the kids if they did not do so. Her mother-in-law explained how it was necessary for women to make sacrifices in marriage. Her father-in-law told her “boys make mistakes”. She felt her love and need for the children were being used by the respondents to get her to go back to her husband. On the evidence this in fact continued and ultimately became the impetus for this litigation.
[90] By April 2009 the applicant knew it was hopeless to try and save her marriage. After a three hour meeting with a lawyer she came away believing she had no chance to have her children when she was not living in Ontario. Her only alternative would have been to discontinue her studies and fight for them in court. She felt the situation was against her. She had no money and no education to earn money. It is not disputed that, over and above the student loans she obtained and what her husband provided from his income, the grandparents were helping support her during the three years at NYU. On the advice of her lawyer therefore she decided to wait it out until she had finished the dental program. The grandfather in his evidence was angry and most resentful of the applicant continuing to accept their generosity and care of the children when she knew her marriage was over.
[91] There was conflict in the evidence concerning the funding of Dr. Rai’s dental program. The respondent grandparents in their evidence claimed the applicant was a spendthrift and took advantage of their financial generosity. The applicant testified she only had $14,000.00 left in her education account at the time of this crisis, despite having taken a line of credit for $150,000.00 which was approved in April 2007 for her education. The family finances were pooled, which was admitted by the respondents. The father-in-law looked after all the family members’ credit cards which were all on one account.
[92] There was a dispute in the trial about whether in the co-mingling of bank accounts, credit cards and family funds the reason there was so little left in the line of credit by then was some of the money had been used by the grandfather to pay for his daughter Lovleen’s $200,000.00 five day wedding celebration. The grandparents denied such use of the line of credit and testified they used their own funds and borrowed money from friends to pay for the wedding. Nothing turns on the veracity of either of these accounts as the applicant has assumed and is paying off her own debts, which include the $150,000.00 line of credit taken at the beginning of her program and additional $80,000.00 she borrowed in 2009 to continue.
[93] The respondent husband felt pressure to be a high income earner after he became qualified as a medical doctor. He worked 18 hour days, showing a net income of $169,211 in 2007 and as high as $372,878 in 2008, and $417,554 in 2009, an exceptional income at the time despite his alcohol and drug abuse problem. In 2010 he showed a gross income of $167,708 after CRA garnishment leaving a negative net income. He felt he was his parents’ investment, and was acutely cognizant of his parents’ high expectations for him. These were not expectations that were unrealistic, given the potential success of the respondent husband. He recognized this in his candid testimony at trial.
[94] After the separation and failed reconciliation attempt the applicant stopped going to Windsor. She only travelled from New York to Brampton to see the children. She testified, and this court believes, there were huge scenes with the in-laws discussing their son during this period of time. There was evidence about the grandfather installing a tracking device on his son’s car.
[95] In 2009 Dr. Rahul Rai resisted visiting his children. He admitted at trial not wanting to impose his drug-addicted condition on the children. There were a few visits when the applicant was in Brampton during which the mother and father took the kids on outings together. By October 2009, however, his visits became even more infrequent. There were a lot of false promises made by him during this time. On his own evidence his alcohol and drug addiction was by then out of control. He was spending money he did not have. The parties lost their house in Windsor after he let the mortgage go into default.
[96] On December 24, 2009 the applicant came to Brampton from New York to spend Christmas with the children. She was under huge pressure at school around this time, as she was preparing to write the board exams scheduled for January 20, 2010. When she arrived in Brampton on December 24 the family had been expecting the children’s father to arrive, but by then it appeared he was not coming. The applicant testified it was demanded of her, with the kids observing, to get their father home for Christmas. Consequently Mr. Rai drove her to Windsor that same day with the directive to bring his son home.
[97] When the applicant and grandfather arrived at the apartment the father was sharing with his girlfriend, they found a significant police presence around the building. They received a call from the police advising them of Dr. Rahul Rai being held by the police as a suspect in connection with a stabbing in the apartment. At the police station they were told to return the next morning at 7:00 a.m.
[98] The next day the grandfather and applicant learned it was K. who had actually stabbed herself, reportedly because Rahul was going to Brampton for Christmas. The applicant wanted to go back to Brampton to be with the children but the grandfather told her to stay with her husband, which she did. Dr. Rahul Rai checked her into a hotel where she spent December 25 alone as he went back to work in Leamington. He returned the next morning at about 11:00 a.m. and took her to a friend’s house, someone she believes was a drug dealer. She observed her husband doing lines of cocaine on that occasion. The experience, as she tells it, was so upsetting to her that she got sick and threw up. The two of them later drove to Brampton where she stayed until January 2, 2010. The respondent returned to Windsor.
[99] Back in Brampton her mother-in-law tried to dissuade her from going back to New York, but she had her board exams scheduled, which required intensive study for four exams. At trial she recalled the drama that took place in front of the children on the day of her departure. She felt the grandparents’ anger on account of their son’s conduct was being taken out on her in the presence of the children. She described how the grandmother grabbed her passport, her laptop and purse blaming her for her son’s problems. She recalls her mother-in-law crying and telling her, “Our son was never like this!” in front of the children who were terrified.
[100] Despite this emotional scene, Dr. S.R. still qualified and attained an A upon her graduation from NYU. Her visits were less frequent after the December/January upheaval. She was criticized at trial for not coming to A.R.’s birthday in February 2010, which they celebrated with her in March when she came to Brampton to write her Canadian qualifying exams at the University of Toronto. She acknowledged Mr. Rai picked her up from the exams.
[101] At the time of that visit in March 2010 things seemed normal between her and the boys, despite the crisis in January. They were happy to see her and, as both she and the grandmother testified, A.R. would do a countdown of the days waiting for her next visit. Clearly, despite the claims of the grandparents about there being no bond between the mother and the children, they were attached to her and were longing for her return.
[102] The applicant graduated from NYU on May 25, 2010. Although she testified she had hoped her kids would be there to be proud of what she had accomplished it appears on the evidence of the grandparents and Lovleen, supported what she herself said to the assessor, she never informed the grandparents about the date. That is not surprising in the context of her plan to leave their household.
[103] After graduation the applicant came to Brampton for four uneventful and what she called “peaceful” days with the children. She then went back to New York by bus to get her belongings. It is obvious that at this point she was not confiding in the grandparents about her ultimate plans to establish a residence with the children and remove them from the grandparents care upon her graduation, although this would have been a logical conclusion on the part of the grandparents had they not been intent on preventing it. The assessor refers to the grandparents’ wish to have everyone in the household, including the applicant with the children, as “delusional”. At the very least this hope was unrealistically optimistic and, in the circumstances there is a very fine line between optimism and delusion.
[104] By June 5, 2010 when the applicant returned to Brampton, she had decided she would not establish her residence with her in-laws. She stayed with a friend during June 2010, and called her parents to come to visit as moral support. It is obvious she was afraid to confront her in-laws after their past threat that no matter what she could not have the children if she left. She sought legal advice about her decision. Her father brought her some money and she rented a townhouse in Mississauga for three months in the hope of moving the children to live with her there.
[105] On July 3, 2010 there was a meeting between the grandfather, one of his friends, the applicant and her parents. It was not a congenial meeting between the two families as had been their past experience. The grandfather testified he had generously opened his home to the applicant’s family in the past. On this occasion, the applicant had asked her father to call Mr. Rai to inform him she was back in Ontario and request a meeting. She testified she had never felt like an adult in the Rai household; she needed her parents there.
[106] At the meeting the applicant told the respondent grandparents she would be living about 20 minutes from their house and asked the grandparents’ cooperation for her to have the children live with her. The grandfather, however, insisted she come back to live at their house. He was not comfortable in the Donut shop meeting, and wanted them all to reconvene at his house. As the grandparents tell it, the applicant in that meeting told them she hates the Brampton house. According to the applicant’s evidence the grandfather said he will die without the grandchildren. She and her parents left the meeting with nothing resolved. In hindsight, and as the evidence shows, this meeting was obviously a standoff between the parties after which the grandparents orchestrated progressive psychological and physical pressure on the children to keep them tied to the grandparents’ home and make them fearful of leaving their nest.
[107] During July 2010 the applicant’s calls to see the children went unanswered. When she finally went to the house she was met with what she called “vibes of disapproval” from the grandparents. The boys looked stressed to her and uncharacteristically avoided eye contact with her. Mr. Rai kept insisting she return to the house and when she refused he said “I’ll do whatever I have to; just watch”. When the applicant went to take the children out with her they acted scared when their grandmother sternly announced they were going to go with their mother. Rather than make a scene and upset the children, the applicant told them she would come back the next day. The day following the grandmother served her with an Ontario Court application claiming custody of the children.
[108] At this point the applicant was still working on getting her Ontario certification as a dentist, while trying in vain to be with her children. On July 30 she spoke to A.R. on the phone and, at his request, promised to come to the house to feed him cereal in the morning. Despite telling the grandmother about this plan and promise, the children were not at the house when the applicant arrived the next morning. Instead she was met by Mrs. Rai’s sister, who counselled her to go to Windsor to be with her husband, telling her the kids are okay here.
[109] The grandmother’s sister, Inderjit Ghuman denied such a conversation. She claimed it was a coincidence to run into the applicant in the Brampton house, and said she had no knowledge at the time about there being a marital separation between the boys’ parents. According to her she and the applicant were at the house at the same time that day; it was a short encounter in which the applicant told her there was a problem and she was never coming back to that house.
[110] The grandmother’s sister’s professed lack of knowledge about the family affairs, despite her almost daily attendance in that household and years of living with them, was explained as being a cultural tendency not to discuss private information with persons outside the immediate family. It is probable the Rai family only shared selected information with non-family members, but not likely Ms. Ghuman would not have been aware of this huge conflict when she and the applicant met that day.
[111] During that event the applicant waited for two and a half hours in the house for the children to come home and then left. In fact she did not see the children for a visit until September despite numerous attempts through her lawyer to arrange time with them.
[112] At a meeting with lawyers in September 2010 the grandparents took the position the children needed to gradually transition back to being with their mother. The mother relented and agreed the first contact would be a four hour visit at the Chuck E. Cheese restaurant. The applicant spoke to the respondent husband at the time about this event and he seemed oblivious about his parents claiming custody against her. The children’s father was not involved in any legal proceedings until about a year later when he filed an affidavit dated June 19, 2011 in the Superior Court proceeding in which he supported his parents in their claim for custody of the children. Although at trial he admitted much of what he said in that affidavit was not true, he nevertheless continues to support his parents’ claim for custody.
[113] This dichotomy in the father’s position was also noted by the assessor who observed his affidavit emphasized what was a reversal from his earlier interview with the father, which occurred before he had returned to his parents’ home. The father’s first meeting with the assessor took place when he was in the Homewood Recovery Program. At that time he was candid and open about his fall into the world of drugs and alcohol, and about his own inability to take on responsibilities of parenting. In that early meeting he was very supportive of the applicant’s abilities as a mother to which he also testified at the trial. He also spoke openly with Dr. Goldstein about the controlling methods of his parents, which he implicitly contradicted in his June 19 affidavit, in which he made light of his drug addiction and supported his parents or him having custody of the children, to the exclusion of their mother. As the abrupt reversal coincided with the husband’s return to his parents’ home, the obvious and logical inference from this sequence of events is that his admitted untruthful statements in the affidavit were made as a result of pressure from his parents to support them in their claims.
[114] After the applicant’s certification as a dentist in Ontario she found and accepted a position to practice her profession in C., a small Ontario town just over 200 km east of the Greater Toronto Area (“GTA”). The respondents have challenged her choice of location as being too far from the Brampton family home. No doubt their visits to the mother with the children, which are finally taking place after many failed attempts, constitute a challenging drive between Brampton and C., especially in Friday weekend traffic.
[115] The applicant initially searched for a position in the competitive GTA environment, but ultimately decided on C.. Having regard to the animosity and opposition of the grandparents towards her when she asked to have her children with her in July 2010, and thereafter, the applicant’s choice of joining a lucrative practice with weekends off in a location removed from the battle zone appears to have been sound judgment on her part in all the circumstances. Admittedly it would make joint parenting with the grandparents impossible. Due to the extreme animosity and the systematic efforts on the part of the grandparents to denigrate the mother in her role, the idea of joint parenting between these parties is neither a realistic possibility nor in the best interests of the children, in any event.
[116] The Chuck E. Cheese visit in September 2010 went well. The mother and children were finally able to renew their bonds in a happy reunion. They also were able to visit with their maternal grandparents before their return to India. There was a second visit in mid-September 2010 that the applicant also described as a good visit. The parties entered into an agreement regarding the time the children would spend with each party. This required the children being taken to a neutral location in Bowmanville for the exchange to have them go to C.. That agreement was never followed by the grandparents.
[117] At first there were excuses about the boys’ health. By October 9, 2010 when the grandmother drove them to Bowmanville, the children started refusing to come out of the car. Even when the grandmother drove them to C. the influence of her presence, which she reinforced by her promise never to leave them, resulted in the children ultimately reversing their moves towards the mother’s house and going back to the grandmother’s car. At one attempted visit the grandmother ultimately drove off while the upset children were blowing kisses and waving out the car window to their mother.
[118] The visits to follow were supposed to be overnight visits. These were aborted due to the same kind of manipulation and interference by the grandparents. When the children refused to get out of the car the grandparents made no effort to discipline and encourage them. One credible description had the grandmother sitting in the front declaring, “I want no part of this” while the children were refusing to go. All the attempted visits after October 2010 until the end of the year, which were supposed to be overnight with the mother, were aborted due to the children’s refusals and lack of effort on the part of the grandparents to encourage the visits.
[119] The grandparents enrolled the boys in soccer games scheduled on the mother’s weekends using these as an excuse. The mother was told if she wanted to see the children she could come and watch their games in Brampton. The applicant described how when she did so the children became afraid to show any affection towards their mother in the presence of the grandparents. The grandparents sent the children to a counsellor in Brampton chosen by them for the sessions to take place on the mother’s weekends. When the mother tried to communicate with the counsellor her calls were not returned. Yet the counsellor wrote a report which was very partisan against the mother, despite never having communicated with her. During that entire fall of 2010 none of the visits scheduled pursuant to the September agreement took place, due to the unending interference by the grandparents.
[120] For Christmas 2010 the mother was to have the children with her. The grandmother drove them to Bowmanville as per the agreement, but the visit was again aborted when the boys refused to get out of the car and the grandmother did nothing to encourage them to go. The exchange ended in an unpleasant war of words between the mother and the grandmother, the mother leaving the gifts for the children after becoming convinced her efforts at seeing them were not to succeed. Ultimately she gave up and did not have the children come for Christmas, despite her holiday preparations for them in C..
[121] After the New Year the parties were in court on a case conference. They entered into minutes of settlement requiring exchanges of the children at a supervised access centre. The plan was for the grandparents to drop them off and for the mother to pick them up there and take them with her for overnight visits. This was to begin early February 2011 but due to the centre’s intake procedures it did not begin until April. By then over three months had again gone by with the children under the influence of the grandparents without seeing their mother.
[122] When the process began it took the staff at the access centre 45 minutes to encourage the children to get out of the car. When they did they announced they would not go with their mother. They complained about having to drive on the highway. The applicant described the children on the one hand being happy and playful with her at the centre, while on the other refusing to leave with her and making excuses about why they would not go.
[123] After a couple of hours at the centre with their mother the children finally went, but the mother had to accommodate their seemingly irrational insistence of not going on the highway. As a result they spent the night with her locally at a friend’s house where they played with her friend’s children. Despite the difficulties at the centre the applicant described their time together as smooth and the children happy and affectionate with her. Despite the fact they would not go to C. with her, the mother was still hopeful for the next visit.
[124] Sadly two weeks later the children absolutely refused to come out of the access centre to go with her, declaring, “We can’t go with you.”, without any explanation. On the third visit the boys came without an overnight bag and without S.R.1.’s puffer for his asthma. The applicant telephoned the grandfather to bring the bags and puffer. The grandfather’s position was he would leave the bag and puffer at the centre only if the children spoke to him personally. The visit did eventually take place overnight. The mother and the children were reported by the worker to have returned with their mother in a happy mood.
[125] The next two overnight visits, however, did not take place. Each time the boys refused to come with the mother. Ultimately three out of five visits out of the access centre were unsuccessful as the children were persistently resisting the staff’s efforts to facilitate a smooth transition. By the end of May 2011 the access centre was no longer willing to participate in the process due to these insurmountable difficulties and refusals by the children.
[126] With no prospect of continuing to see her children, and having had only two overnights with them since the September 2010 agreement, the mother had to bring a motion to have her children with her. This resulted in an order dated June 30, 2011 requiring them to spend the entire summer with the applicant, interrupted by a few days midsummer with the grandparents. For these extended visits the children were to be dropped off in C. by the grandparents.
[127] Again the children’s exit from the grandparents’ car was a two and a half hour ordeal of cajoling by the mother, which was ultimately successful with the friendly assistance of the local police. The grandfather had arranged to have his nephew video the episode while he stood at a distance observing, a situation which no doubt added unnecessary and harmful drama from the children’s point of view.
[128] When the applicant finally had the children with her, she had to spend time to satisfy them there was nothing to fear. The initial strange question from A.R. was whether she was going to throw them in the river, which irrational fear he repeated several times. The applicant testified she had no idea where that idea came from, but the inference drawn by the assessor quite fairly was that the grandparents had frightened the children by making such suggestions to them. In addition to A.R.’s irrational comments about being thrown in the river the applicant recalled S.R.1. telling her at the beginning of the summer residence, “I don’t belong to you”.
[129] Despite these initial negative comments from the children what followed was an idyllic summer for them. They were finally free to enjoy being naturally loving with their mother. They participated in activities such as learning to swim, soccer and tennis lessons. The applicant had a room set up for them with books and toys. She looked after their health needs, obtaining glasses needed by A.R. and dental care for both children. She attended to their religious education and taught them prayers she had learned as a child in India. She arranged for her workday to end at 3:30 p.m. whenever possible, and for some shorter work weeks towards the later part of the summer to maximize her time with the children. She set up responsible babysitting and daycare arrangements for them while she was at work. Her office is very close to her home, within a few minutes walk, and they would often have lunch together. The children made friends in the neighbourhood and also attended day camp.
[130] The relationship between the mother and children without the interference of the grandparents became warm and affectionate. As a result of the extended residential arrangements in the mother’s home the bond between mother and children became stronger. Despite this and the boys’ absence from the grandparents, they would occasionally say things like, “the only person not in the Brampton house now is you”. The applicant testified the children still ask her why she doesn’t come back to the Brampton house to live with the rest of the family. On the evidence as a whole it is obvious the idea of this extended family unit has been planted in the children’s minds by the grandparents, who for years had not been able to let go of their ideal dream of their son, daughter-in-law and grandchildren remaining in the same house with them forever.
[131] The court order of June 30, 2011 is restrictive about the grandparents’ freedom to speak to the children. Their telephone calls were ordered to be monitored by the mother. However, the applicant observed the Rai family attempting to circumvent this restriction by arranging to have their daughter, who lived in California, speak to the children about how they were missing all the fun their cousins were having in Brampton. The applicant described how these calls would sometimes make S.R.1. cry or become progressively quiet after speaking to his aunt. The mother perceptively noted to this court that calls to the children should be to make the children happy and not designed to upset them about what they were missing by not being in Brampton. She is obviously very sensitive to their psychological needs, and recognizes the children’s ties to friends in Brampton and the ability of adults to stir up their emotions by destructive manipulation.
[132] The mother also expressed concern about the grandparents’ phone calls becoming overly frequent to as many as four times a day, which prevented her from having uninterrupted quality time with the children. These frequent calls would no doubt stir up the ideas in their minds about the whole family living together in Brampton, which they know to be the grandparents’ wish. This same wish of the family being together was expressed by the children to the court during my interview with them, which was conducted upon the grandparents request during the trial.
[133] As a further indication of the grandparents’ insensitivity and lack of insight about the harmful effects of this dispute on the children, the grandparents hired a private investigator to spy on the mother when she was with the children in the summer of 2011. The investigator testified and reported the children did not use booster seats he claims are mandated by Ontario law, that he did not see them do up their seatbelts and that the applicant drove at an excessive speed when entering the highway with the children in her car.
[134] It was insightful of the mother to note in her evidence that if the grandparents had been truly concerned about the children’s safety while driving, they would have informed her right away about this booster seat requirement. Instead they chose to secretly spy on her and pay for a report for the purpose of discrediting their mother. She had understood the children were older and taller than the requirements for booster seats. She candidly admitted she may have been mistaken about that, and as soon as she saw the report she made sure there were booster seats for the children. She also testified she always ensures the seatbelts are done up for the children, and the court notes the video of the investigator showed he did not have a full view of the seats to make any determination about whether the seatbelts were fastened or not.
[135] The surreptitious hiring of the private investigator supports what the assessor observed to be a systematic effort on the part of the grandparents to do and say whatever they could to discredit rather than support the mother in her parental role. Such a disparaging attitude towards the mother would naturally be absorbed by the children. It is further exacerbated by the conduct and attitude of family members. The children’s aunt, Lovleen, in her evidence demonstrated this by criticizing their mother for “abandoning” her children. A cousin added to the conflict by videoing a tantrum dramatically resisting going to the mother. The grandfather took pictures in a misguided effort to demonstrate to the assessor how the children had been starved during the summer by the mother.
[136] Despite the enjoyable time the children had with their mother during the summer, it is of note that as soon as they had been back in Brampton with the grandparents for a few days at the end of July the children reverted to their obstructive behaviour when going back to their mother. Upon his return it took A.R. 35 minutes to get out of the car and again he needed to be cajoled. The nephew of the grandparents’ videoing the event would have logically signalled approval of the resistance in the children’s mind. A number of other conflicts instigated when the children were back in Brampton came to light, such as the grandfather reportedly having told the children not to go to swimming classes, information passed on to the applicant from the children. In the children’s minds this would have undermined her decisions and parental authority causing feelings of insecurity in the children.
[137] After the summer period ended and the children were returned to Brampton in September, alternate weekend access was to take place in accordance with the June 30th order, pending the assessment and trial. Problems continued. The evidence is replete with voluminous correspondence between the parties’ lawyers about these problems. These highlight the extent of the roadblocks and excuses put in the way of the mother’s efforts to see the children and foster her relationship with them, free of interference by the grandparents. The assessment report prepared at the joint request of both parties also strongly supports the conclusion the grandparents have manipulated the children to such a degree that they believe they would not be safe and secure if they are in their mother’s care rather than in the familiar surroundings of the Brampton house and father’s extended family. This is a false belief which the grandparents continue to promote in furtherance of their goal to keep the children in their sole custody.
[138] It is apparent that whenever the children are required to leave the grandparents to be with their mother, and even when they were required to leave the grandparents to see the assessor to talk about seeing the mother, the children became anxious, upset, and extremely emotional to the point of frenzied violence as was personally observed of A.R. by the assessor. When A.R. engaged in such a temper tantrum outside the assessor’s office, screaming and pummelling the grandmother, both grandparents stood by and did nothing to control him, despite the need for the child to be sternly disciplined for such bad behaviour by the persons in the parental role.
[139] At trial the grandfather was unwavering in his incredible insistence there was no way the child A.R. could have pummelled his grandmother, as witnessed and noted in Dr. Goldstein’s report and evidence at trial. Dr. Goldstein was very credible on this fact and would have had no reason to make up the occurrence of such an unpleasant event. Indeed he discontinued his efforts to have the child come and talk to him when this disturbing behaviour was causing such a scene.
[140] The grandfather’s refusal to admit the occurrence of this behaviour, referring to A.R. as being a “baby”, supports the conclusion the grandparents’ overly indulgent manner with the children, coupled with their manipulative methods of interfering in the children’s relationship with the mother, would create serious harm to the children in the long term. The grandparents have already managed to manipulate the children to such a degree that they manifest beliefs and fears of not being safe and secure if they are in their mother’s care, a false belief and fear which the grandparents have instilled and promoted in the children despite the psychological harm it causes them.
[141] The grandparents’ harmful conduct has continued even during the trial, despite the grandparents’ being under court scrutiny. This is evidenced by the Rai’s April 2012 visit to the local Children’s Aid Society (“CAS”) office with a complaint about the children not doing their homework when with their mother and about how the children report their mother looks at them “with a crooked eye”. This was not the first complaint to the CAS, the first being of a report through Ms. Inderjit Grewal of the mother slapping S.R.1., an allegation the children made, which was deemed by the experienced psychiatrist assessor as false, and labelled as being not verified by the Children’s Aid Society after the first investigation when the file was closed.
[142] Now that the grandparents returned with these further complaints about homework and the mother’s crooked eye, the CAS was required to reopen its file. But there has been no verification whatsoever of any abusive conduct on the part of the mother despite the continuing efforts of the grandparents to discredit her role as a loving mother.
[143] At trial the grandparents’ position on this was that they were counselled by a family friend, who also testified, that the report of the slap should be made to the CAS. This excuse on the part of the grandparents was disingenuous. They are close to the children and would, or at least ought to have known the alleged incident was not one of abuse. The complaint was made long after it was alleged to have occurred.
[144] The children’s father, who has now made great strides in his recovery program and was able to be more objective than his parents at trial, recognized there was no risk of harm whatsoever to the children in the care of the mother and that her discipline would not include abusive behaviour such as the grandparents have been alleging. Even if the grandparents were given the benefit of the doubt as to a true belief that the alleged slap was evidence of abuse by the mother, their second attempt at discrediting the applicant at the CAS, by complaining about the children’s homework not being done and angry looks, demonstrates their true motives are to disparage the mother and not concern for the welfare of the children.
Evidence of the Assessor
[145] It was obvious the conflict regarding custody and access was escalating out of control to the point that even the access exchanges scheduled to take place at the Peel Supervised Access Centre were terminated by the staff there. At the case conference on January 31, 2011 the parties agreed to an order directing them to jointly retain and pay for a professional to conduct an assessment pursuant to section 30 of the Children’s Law Reform Act. After some debate between counsel about the cost and the person to be retained, the parties settled on having Dr. Sol Goldstein, an experienced assessor and child psychiatrist, to perform the assessment.
[146] Dr. Goldstein is a duly qualified and highly experienced child psychiatrist. Over a period of over 40 years he has worked with over 500 families and has conducted numerous assessments regarding child custody and access issues in high conflict families. His work has been widely recognized in the field. He has authored numerous publications on the topic. At this trial Dr. Goldstein was recognized by the court as an expert in the field and qualified to give opinion evidence as a psychiatrist regarding the best interests of the Rai children and issues surrounding the determination of their custody and access.
[147] In the course of his assessment Dr. Goldstein interviewed all the parties several times, as well as both children and a colleague of the mother. He saw the children interact with both the grandparents and their mother. He reviewed the voluminous written material from interlocutory court proceedings cooperatively made available to him by the parties’ counsel.
[148] The report and Dr. Goldstein’s evidence at trial is relied on by the mother. As a result of her own experience, and the assessor’s alarming conclusions about the harmful conduct of the grandparents, the mother fears the grandparents will continue to engage in behaviour that undermines her relationship with the children. Dr. Goldstein’s opinion and conclusions emphatically support her position regarding the children’s needs and best interests. He recommends inter alia that “the boys should be immediately removed from the influence from the grandparents and custody of them be granted to mother.”
[149] The respondent grandparents have vigorously challenged the assessment findings, Dr. Goldstein’s opinion and methods. The respondent grandparents submit the report of Dr. Goldstein is fatally flawed and ought to be disregarded in its totality. The objections to the Court’s acceptance of Dr. Goldstein’s opinion relate mainly to his methodology which did not follow any particular protocol with respect to the interviews and investigation conducted by him. The objections are:
• he did not review the assessment contract with them
• he did not interview the grandmother or any collaterals of the grandparents, whilst interviewing one collateral presented by the mother
• he didn’t investigate discrepancies between what the mother and her collateral said
• he did not use psychometric evaluation or questionnaires
• he made recommendations about the father’s generous contact with the children without his medical records and observing the father interacting with them
• he observed the boys with the mother more than with the grandparents
• he didn’t follow up on information presented by the mother in her email and telephone communications
• he didn’t test different hypotheses about the children’s demonstrated resistance to being in their mother’s care
• he didn’t adequately explore the children’s wishes
• he interviewed the children about their allegation of an assault by the mother contrary to best practices
• he did not address the effect of removing the children from their primary caregivers and community
• he recommended supervised access by the grandparents without regard to the feasibility of such a plan
• he offered a four month plan, with a six month review, rather than a comprehensive durable parenting plan.
[150] The objections which were most emphasized during oral argument were the failure of Dr. Goldstein to provide an interpreter for the grandparents, and his failure to interview the grandmother individually rather than merely having her present during his interviews with the grandfather and assuming she concurred with her husband’s presentation.
[151] Although Dr. Goldstein’s report does not follow any standard or prescribed format for custody assessments, his report and investigation focused on exactly the issue that was presented to him in the court materials which were sent to him by counsel at the beginning of his assignment. The circumstances under which this assessment was ordered were at a crisis level. This was also clear in the endorsement and reasons of Miller, J. when the assessment was in process.
[152] This case was not presented to Dr. Goldstein as a standard parenting capacity assessment of two parents after separation. It was clear on the material before the court, much of which he received when he was retained, that the children had been systematically prevented from spending time with their mother for any extended period of time until Justice Miller made her Order on June 30, 2010 for them to have their summer holiday with her. By the time Dr. Goldstein was retained there had been a long history of cancelled access, soccer and counselling appointments being scheduled on weekends the children were to be with the mother and overwhelmingly frequent and persistent refusals by the grandparents to take any steps to encourage the access arrangements to which they had purported to agree, and then heedlessly ignored.
[153] This was a focused assessment. The query of Justice Miller in her endorsement of June 30, 2011 acknowledges the need for an investigation into the mother’s allegations about the grandparents’ alienating behaviour towards the children. It is obvious on the evidence that Dr. Goldstein made the inquiries that were needed to get the full picture in relation to the issue for trial. He did not need to interview the school authorities, doctors or relatives on the grandparents’ side or other collaterals for this purpose. Neither are the other criticisms of his methodology valid in these circumstances.
[154] This court agrees entirely with Dr. Goldstein’s justification for his methodology as being focused on the issue, rather than adhering slavishly to all the protocols. The fact that he did not interview collaterals of the grandparents is no loss to this court. He accepted their position that they had been the primary caregivers for the children for years and that there was a strong bond between them and their grandchildren, which was also the evidence at trial. The criticism of the mother and support of the grandparents was received from their collaterals in their evidence at trial. The evidence at trial is consistent with and in substance supports Dr. Goldstein’s findings of fact. As has been shown on the evidence, further investigations and testing of various irrelevant hypotheses would not have uncovered additional reasons for the children’s resistance to seeing their mother other than the grandparents’ influence, which has been the most pervasive presence in their lives.
[155] Dr. Goldstein did not overlook the strong attachment of the boys to the grandparents, as submitted by their counsel. He recognized it as harmful because it was being used by the adults to convince the young and vulnerable grandchildren that leaving them and the Brampton house will diminish or compromise their love and security in which they have grown. The grandparents’ allegations that the mother was unfit, uncaring and had no bond with the children, because she abandoned them for selfish pursuits, was best tested by him through the numerous interviews and observations he conducted with the mother and the children.
[156] Before giving an opinion Dr. Goldstein was careful to ensure there was a solid loving and healthy relationship between mother and children. This was the logical and necessary focus of his investigation in circumstances where the grandparents, and particularly the grandfather, was accusing the mother of being neglectful, of being selfish, of spending money on herself and ignoring the children. It would have been of no utility to interview the daughter of the grandparents, the children’s aunt who, as was shown at trial, is biased and announced at the beginning of her testimony that Dr. S.R. “abandoned” her children. Dr. Goldstein did not need to interview collateral witnesses on behalf of the grandparents to hear the same opinion as a result of one-sided information received from them.
[157] At trial the court learned close relatives in the same household were kept in the dark and not informed about private family matters, such as the addictions of the children’s father and breakdown of the parents’ marriage. Interviews of the grandparents’ collaterals would not have changed the ultimate conclusions in the assessment, as was shown by the evidence.
[158] The one collateral interview on behalf of the mother was at her request. It added information to help him understand the nature of Dr. Rai’s absence from the children during her studies, which was being criticized by the grandparents. This collateral was also a mother and a dentist who had been required to re-qualify in North America. The interview gave Dr. Goldstein a perspective which would have been helpful to understanding the circumstances, and determining whether the criticism of the grandfather about the mother’s infrequent visits was a valid basis to conclude the mother was neglectful as alleged.
[159] It is clear from Dr. Goldstein’s evidence that he understood the grandfather’s position against the mother. He fairly recognized the before and after photographs of the half-naked boys returning from vacation with their mother as having been “staged” in the circumstances. At trial the grandfather and his witnesses claimed there were many pictures taken of the boys, as if to deny his purpose for showing these to Dr. Goldstein. The grandparents plan, as recognized by the assessor, was to show Dr. Goldstein how neglectful and harmful the mother was to her children.
[160] With these kinds of allegations it was important for Dr. Goldstein to spend extra time with the mother to find out for himself whether these allegations were true or not. Ultimately he concluded what was also shown at the trial, which is, that the grandparents in the execution of their negative campaign against the mother had become a harmful influence on the children and the cause of the children’s fears and objections to leaving the grandparent’s home to live with their mother.
[161] It is a valid criticism that Dr. Goldstein did not interview the grandmother who has been a primary caregiver of the children and is a principal in this custody dispute. The argument that this demonstrated a discriminatory attitude on the part of Dr. Goldstein in assuming that the wife would simply concur with the husband is noted. However, it was clear from Dr. Goldstein’s evidence that at all times during his interview with the grandfather the grandmother was there but chose not to participate or answer any of Dr. Goldstein’s questions. She left it to her husband to respond.
[162] It was also noted by the court the grandmother’s ability in English is much weaker than that of her husband, despite her having lived in Canada for over 30 years. In those circumstances she may have been reluctant to interject her comments during these interviews. It is a valid criticism to say Dr. Goldstein would have been more thorough in his questioning had he addressed the grandmother directly and interviewed her separately. However, as was shown at trial wherein the grandmother gave extensive evidence with an interpreter, Dr. Goldstein’s belief that she concurred with her husband’s point of view is right. Both grandparents were complicit and participated in their campaign to discredit the mother first to the children, and then to Dr. Goldstein and the court.
[163] The assessment report and Dr. Goldstein’s opinion at this trial is but one aspect of the evidence as a whole. To rectify any weakness that his investigation may have had as a result of not interviewing the grandmother, this court heard lengthy testimony from the grandmother on all aspects of the case, which she was able to communicate through an interpreter. There was nothing in her testimony that contradicted the findings and conclusions of Dr. Goldstein. To the contrary it bolstered his ultimate conclusions about the attitude and conduct of the grandparents in regard to their clear intention to keep the children with them in the Brampton house and allow the mother to maintain a parental role in their lives, only if she lived within that extended family unit in the Brampton house.
[164] That hope on their part was shattered during the course of the litigation, particularly after the court order for the children to spend the summer with the mother and Dr. Goldstein’s devastating report which identified their conduct. By that time their harmful conduct had become entrenched and, in fact, continued during the trial proceeding. The children’s mother’s concerns about being marginalized by the grandparents are supported by the ultimate conclusions in the assessment report.
[165] The respondent grandparents claimed at trial their Charter rights to understand the proceedings and claims against them had been violated by Dr. Goldstein not having an interpreter present during his interview with them. This argument does not succeed. Dr. Goldstein was neither informed that the Rais did not understand and/or speak English, nor did he have a reason to believe that to be the case.
[166] Dr. Goldstein was visibly surprised about the suggestion during cross-examination that he should have had an interpreter for the Rais. He testified he had no trouble understanding them at the meetings and that there was no indication by the respondents that they did not understand the process or purpose of the assessment.
[167] The grandfather’s presentation to the assessor of information in support of his position makes it clear to the court Mr. Rai knew exactly what was being investigated in the process. Dr. Goldstein’s notes contain details about what Mr. Rai told him in English, which also supports his belief Mr. Rai had no problem understanding English or the process. At trial the court observed Mr. Rai on occasion begin to answer after the English question before the translation, another indication of his abilities in English.
[168] The Rai’s lawyer at the time of the assessment spoke their language. He would have been able to explain the process to them in their own language. Had the lawyer or the Rais had any concerns about not being able to communicate with Dr. Goldstein in English, their lawyer would have raised the issue on their behalf. Before settling on the assessor there was much debate and correspondence about the fees from their lawyer, but no concern expressed about the clients not understanding English and needing an interpreter in their meetings with Dr. Goldstein.
[169] While it may have been prudent for there to have been an interpreter to assist the Rai's during the process, no one, including the grandparents’ lawyer at the time who provided the initial instructions about the assessment to Dr. Goldstein, suggested they could not speak or understand English. Dr. Goldstein testified he had no trouble understanding or communicating with Mr. Rai in English. It is obvious from his notes Mr. Rai was able to give Dr. Goldstein the information he wanted to communicate. In substance, it mirrors what he told the court through his interpreter.
[170] On the evidence both Mr. and Mrs. Rai have been living in Canada and working as productive members of our society since the 1970’s when they both came from India as young adults. They did choose to testify at trial through an interpreter and both had the benefit of a Punjabi interpreter’s assistance during the trial. There is no issue their position and evidence was not properly communicated to the court. The factual assumptions cited by Dr. Goldstein in his report and the accuracy of his knowledge about the parties, the children and the dispute, demonstrate a complete understanding between the grandfather and assessor during the course of their meetings, regardless of the absence of an interpreter.
[171] In reviewing Dr. Goldstein’s report, and having heard his and the Rais’ testimony in court, I am satisfied Dr. Goldstein’s understanding of the grandparents’ views and their position regarding the children was not hindered by a language barrier. Dr. Goldstein’s testimony at trial about the relationship between the grandparents and children, about their conduct with and towards the children, and his observations of the positive and negative aspects of their parental role was consistent with not only the evidence of the grandparents, but also the evidence as a whole.
[172] Dr. Goldstein in his observations looks at the overall situation which fairly includes the grandparents’ side of the story. He accurately summarizes the same position which was communicated in their evidence at trial. He says, for example, “the grandparents at all times presented themselves as cooperative, pleasant, but very firm in their selling of the fact that they have been the primary caretakers of the boys and they were best suited to continue to do so for the rest of their lives.” This was exactly the position of the grandparents at trial.
[173] As established on the evidence, the grandparents continued to feign ignorance of both their son’s addictions and marital breakdown during those crucial years, a fact which Dr. Goldstein also observes. Dr. Goldstein accurately describes the difficulties encountered in connection with the mother’s visits with the boys which developed and escalated with the litigation.
[174] Dr. Goldstein also viewed audio and video recordings supplied by the grandparents. He accurately understood these to have been provided in their desire for the assessor to note the distress of the children prior to the visits with their mother. He describes the video as A.R. “punching his grandmother, without her trying to stop him from doing so”, and S.R.1. “lying on the bed kicking and writhing in apparent distress.” Dr. Goldstein personally witnessed this kind of behaviour outside his office when A.R. was resisting the visit to his office when brought there by the grandparents, a scene he describes with much concern.
[175] Dr. Goldstein also considered the before and after photographs the grandparents provided to him. In these it was obvious, as it is to this court, that the photos were staged and taken after they spent several weeks with their mother in C. in an attempt to prove the grandfather’s point of alleged neglect of the children by the mother.
[176] Dr. Goldstein also found the grandparents’ handling of the boys’ report to them of a slap by the mother to be problematic, a point on which he focused in his opinion at trial as being highly significant evidence of alienating behaviour of the grandparents. In the circumstances his questions to the children about their allegation were not improper, as submitted by the respondents’ counsel. As a trained and highly experienced psychiatrist he is skilled in the conduct of such interviews.
[177] Contrary to the criticisms of the grandparents and their counsel the report of Dr. Goldstein is not skewed in favour of the mother’s position. It is fairly based on sound and detailed information from both sides gathered from an impartial perspective. Where he observed positive behaviour of the grandparents it is noted, such as his having “found the boys to be happy in [the grandparents] home and in their relationship with their grandparents.” He describes their home routine as “quite organized and geared towards studies and play in a somewhat regimented but productive fashion” as the grandparents themselves and their witnesses described during the trial.
[178] Dr. Goldstein accepted the grandparents’ word, as it was not disputed by the mother, that the children had been well cared for by the grandparents in her absence. In answer to the criticisms in regard to the absence of collateral sources in his assessment during cross-examination Dr. Goldstein astutely and logically explained his decision not to spend hours on collateral interviews, as these would unnecessarily run up the parties’ assessment costs without any benefit. This court also notes that any time taken away from the focus on the essential parenting individuals in this case would have weakened what is shown to be a thorough understanding of the situation and circumstances of this family and children by Dr. Goldstein.
[179] The assessment report and evidence of Dr. Goldstein is accepted as helpful evidence to the court’s understanding of the dynamics of this custody dispute. It is a useful tool in the determination of what is in the best interests of the children.
Critique by Dr. Simon Williams
[180] Dr. Simon Williams, Ph.D., is a psychologist originally contacted by Ms. Inderjit Grewal and then retained by the respondent grandparents to critique Dr. Goldstein’s assessment report. He was qualified to give opinion evidence as a psychologist in the field. His experience with assessments has been as a team member to prepare parenting capacity assessments under the Child and Family Services Act, primarily in regard to cases in which children have been maltreated. Dr. Williams’ only direct contact with any of the parties in this case was a brief conversation with Mr. Rai. He said he took the assignment because he felt there were glaring omissions and errors in the report which he could easily critique.
[181] Dr. Williams’ first criticism was that Dr. Goldstein interviewed Mr. Rai without a translator. However in cross-examination he agreed he had no reason to disagree with Dr. Goldstein’s statement that he understood Mr. Rai.
[182] Other criticisms were that he did not collect information from a number of sources; that it was more like a childhood maltreatment report in the criticism of the grandparents parenting of their son; that no psychometric instruments were used; that he did not analyse the wishes of the children; and that nothing in the report justifies monitoring of telephone calls.
[183] His interpretation of the report is that Dr. Goldstein is saying the grandparents have a pathological parenting style. He said Dr. Goldstein did nothing but present a picture of two reasonably well-adjusted children, and if they are really at risk, as suggested by Dr. Goldstein, it would have happened by now. He did not see any problem with the grandparents scheduling soccer on the mother’s weekend, declaring parents can’t help it if soccer only takes place on weekends. He calls alienation an “invalid theory”. He does not think it is a parent’s responsibility not to undermine the child’s relationship with other parent.
[184] Dr. Williams presented as having no real understanding of either the opinion of Dr. Goldstein, or the problems in this case. In his opinion the fact the slapping allegation was found by the CAS to have been “not verified” is not a conclusion it did not happen. He criticized Dr. Goldstein’s interviews of the children on that topic pointing out children often change their story about an allegation because they feel they are telling the wrong story when repeatedly questioned, so they change it.
[185] In his opinion this is a case of children whose primary attachment is being threatened, and one would expect the children to act out in resistance. He said the resistance is “completely normal” and he sees it all the time. He said you would not be dealing with “happy campers” if you removed them from their primary caregivers. He does not consider the reconciliation between a parent and child, or a biological connection between mother and child as anything special. He would focus on the stability of the children as the key.
[186] Dr. Williams’ evidence is not at all helpful in determining the issues in this case and is therefore not given any weight. Having worked primarily with at risk children in care, who are typically maladjusted due to incapable parents, his perspective did not address the concerns in this extended family. He took an academic approach in his critique of Dr. Goldstein’s report, without any depth of understanding regarding the issues in the conflict. He cavalierly dismissed the “theory of alienation” without focusing on the very serious concerns addressed by Dr. Goldstein about the grandparents conduct which has driven the children to irrationally fear being absent from the grandparents when in the loving and secure care of their mother.
Analysis
[187] The undisputed principle for the court in deciding custody and access is the children’s best interests. The debate on the law in this case centres on whether there should be special consideration or a presumption favouring the importance of the children’s relationship with their mother over the grandparents in the determination of their best interests, or, whether the court should follow an entirely holistic approach without any priority being given to the children’s relationship to their mother, as urged by the grandparents’ counsel.
[188] The other issues presented are whether the grandparents have engaged in harmful alienating behaviour while caring for the children, and whether the children, who are bonded with their grandparents as a result of being left in their primary care by the parents, will be harmed by an order removing them and granting their custody to the mother.
[189] As a framework for the analysis it is helpful to set out the list of factors enumerated in subsection 24(2) of the Children’s Law Reform Act, (CLRA). This list is not exhaustive. It is a helpful guide to what factors may be relevant in considering the children’s needs and circumstances in the context of determining their best interests.
[190] Subsection 24(2) states as follows:
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[191] In considering the enumerated factors it is noted that S.R.1. and A.R. have affectionate ties with all of the parties in this case. Although the grandparents have been their primary caregivers for a number of years, and the mother saw them only periodically when she was away at NYU, for the last two years this infrequent contact has not been for lack of great effort on the part of the applicant to take over the parenting role. She was also much involved in their care as infants.
[192] The children have expressed the preference of staying in Brampton. They want both parents to live there with them. This is normal, and in this case that unrealistic hope has been fostered by their grandparents. They are young and not able to consider or understand the true nature of the circumstances which have caused them to be placed within this dispute. Their wishes have minimal impact on the decision in these circumstances and at this young age.
[193] The children have lived in the grandparents’ household for many years, but the home environment and their life there has not been at all stable, particularly since July 2010. They have been witnesses of the effects of their father’s addiction on the family, and subjected to a visceral anger of the grandparents against their mother for her refusal to return to this family. They have been used as pawns to be photographed and video recorded, thereby being conscripted into the grandparents attack on their mother and her authority as their parent. They have joined the attack by making false accusations about her.
[194] All the parties have expressed and shown an ability and willingness to provide the children education and necessaries of life. The grandparents have looked after the children’s health and have provided moral and religious guidance, as has the mother. Significantly, the mother has shown a far superior understanding of the children’s emotional and psychological needs, in contrast to the grandparents, who have lost their perspective in their quest to maintain control of this extended family. They are not able to comprehend the harm caused to the children when they marginalize the mother’s role by their conduct, as seen in the eyes of the children at this most vulnerable stage of their life.
[195] The grandparents propose the children remain with them. Because of the overwhelming challenges in the commute to the mother’s home they seek to reduce her access for so long as she remains geographically distant from Brampton. This is clearly not in the children’s best interests as it would further exacerbate the marginalizing of the mother’s role by the grandparents.
[196] The mother has a stable home now and her parenting plan for the children is solid. C. is a small town with good facilities for the children’s education and activities, which the mother has already accessed during her time with the children. She is employed in a location very close to home; she has appropriate childcare arranged for when she is at work and realistically plans to shorten her work hours as soon as this litigation and its time demands are ended.
[197] At the present time the mother reasonably perceives Dr. Goldstein’s recommendations, which severely limit the grandparents’ contact with the children, as a necessary measure to allow her to re-establish her authority as a parent. The family unit in the Rai household at the present time is in a state of upheaval. The respondent father is subject to addiction monitoring and control by the grandparents as overseen by the Ontario Medical Association to ensure his continued sobriety for him to ultimately return to his medical practice. At trial he had not yet returned to work, although he was hopeful of doing so in the near future, at least on a part time basis. The grandparents are elderly and do not have the same stamina as their mother to raise two very active boys into adulthood.
[198] Understandably the grandparents are focused on helping their son’s recovery. If the children remain in their primary care this continued challenge and struggle by the father and his parents, who have become responsible to monitor him, will affect the children’s well-being. The father has been able to reconnect with his children by his renewed presence in the home, but his involvement with the children has been limited to sports and recreational activities. To date he has not shown the ability to take on any parenting responsibility. The mother is supportive of the father having regular contact with the children, provided there is proper supervision of his condition for so long as necessary during the period of his recovery.
[199] The biological tie of a mother and father to the child is the most proximate of any other in their childhood. A child’s strong and healthy bond with a parent is crucial to his development. The bond S.R.1. and A.R. have with their grandparents is important, but it does not replace the need to strengthen their bond with their mother who is a capable and loving parent.
[200] The grandparents submit the mother, by not communicating or seeing the children as often as she could have while she was in New York, is now disentitled to resume her place as the children’s primary caregiver. They, in effect, seek to compound the diminution of this important tie by keeping the children from her, action which is harmful to them. Every effort should be made to maximize the children’s time with their mother now while they are still young, to repair any damage which may have occurred due to her absence, not restrict it even further by refusing them the opportunity to be in her custody to allow the relationship to strengthen.
[201] The grandparents view the issue of custody through a clouded lens. They claim the children will be harmed if taken out of their home, but the evidence does not support such a conclusion. Dr. Williams opined to that effect; but he did so in a factual vacuum never having met the mother, the children, or the grandparents, except in a short conversation with the grandfather when he was retained to critique Dr. Goldstein’s report.
[202] The children are attached to their grandparents, but as Dr. Goldstein has wisely explained it is a very unhealthy attachment when children irrationally fear being separated from the adults to whom they are attached. That unhealthy attachment needs to be broken for it to eventually regenerate and emerge as a healthy bond between the children and their grandparents. A period of separation between the children and grandparents is a necessary step in this process to allow the children’s relationship with their mother to be normalized and strengthened, without the constant controlling and manipulative interference of the grandparents.
[203] Apart from the conclusion on all factors relating to the best interests of the children that custody should fall to the mother, it is also established in the authorities that a parent’s claim to custody takes precedence over that of a non-parent, absent unusual circumstances of parenting incapacity by the parents. The cases on which the grandparents rely in support of their position that the issue requires a holistic approach generally relate to situations in which the parent was not capable of providing a stable environment for the child, which does not apply in the case at bar.
[204] Having regard to a child’s need to maintain a strong bond with his parents, the courts have given effect to the principle that the parent’s right to custody is to be presumed over the claim of a third party to the child’s custody, absent exceptional circumstances. In M.(A.) v. P. (L.R.) (1995), 14 R.F.L. (4th) (Sask. Q.B.) at p. 273, on an application by competent and caring grandparents’ for interim custody, in circumstances where the mother was adequately able to care for the children, Gerein J. states:
Absent something unusual or exceptional a parent is in a favoured position and should be preferred over grandparents on a question of custody… To my mind, the court must look initially to the best interests of a child within the context of the child’s immediate family or what remains of it. Should the examination disclose that the situation is in a meaningful way less than one would normally expect, then the court should seek the best interests of the child beyond the parameters of the immediate family.
[205] The Supreme Court has also acknowledged the presumptive status of a parent over third parties to ensure a child’s well being. In Droit de la famille - 320 (sub. nom. Charron v. Vignaux-Fines), 1987 CanLII 20 (SCC), [1987] 2 S.C.R. 244, the Court stated at p. 280:
A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his child’s well-being. He must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. The third person must also show that, unlike the person having parental authority, he or she is able to provide the care and affection needed by the child.
[206] In Foster v. Allison, (2003) 44 R.F.L. (5th) 78, [2003] O.J. No. 3681, 2003 CarswellOnt 3528 (Ont. Fam. Ct.) 2003 CanLII 2369, para. 2, Aston J. makes the same observation in application of the CLRA as follows:
Though “any person” may apply for custody under section 21 of the Act, the statute and case law both support the proposition that parents have a preferred status or preferential claim over others.
[207] In the case at bar, S.R.1. and A.R.’s mother is a loving and most capable parent. She is the person best able to provide for their needs. Drs. Rahul and S.R. temporarily entrusted the respondent grandparents with the care of their children until they had finished their education, an endeavour that was supported by the grandparents at the time. The respondents’ steadfast refusal to allow the children to be returned to the mother’s care has been detrimental to their emotional health. Their promotion of the children’s concept of a family unit to the exclusion of the mother, unless she lives with them in Brampton, is misguided and harmful to the children’s development. Removing them from this environment and the hold the grandparents have on them is not harmful, as claimed by the respondent grandparents. It is, in all the circumstances in their best interests and a necessary step in establishing the needed strong relationship and bond with their mother.
Support Issue
[208] The grandparents claim retroactive child support against the applicant. She has been employed since August 2010. In normal circumstances she would be required to pay support to the grandparents, who have been the de facto primary caregivers for the children. However they assumed this role without her consent after July 3, 2010. It is also of note the grandparents have not made a claim against the father for child support, despite evidence of his substantial income from about 2007 to 2009. In 2010 he was dealing with his debt to CRA due to losses incurred because of his drug addiction issues and failure to attend to his financial situation. His net is therefore not an accurate reflection of the father’s actual earnings in 2010.
[209] The court has by this judgment found the respondent grandparents’ withholding of the children from the mother after July 3, 2010 to have been wrongful and harmful to their best interests. Counsel have not in their submissions addressed this anomalous circumstance as it may, or may not, affect the decision on the applicant’s child support obligation during this period.
[210] The decision on the support issue is therefore reserved pending receipt of written submissions on that issue, which submissions shall be delivered within the same time frame as the costs submissions.
Result
[211] In the result, therefore, there shall be an order as follows:
(a) The children, S.R.1. and A.R., shall be in the sole custody of their mother, the applicant, Dr. S.R.. She shall be the person responsible for all decisions relating to the children.
(b) The children shall remain with the applicant throughout the entire summer of 2012 for their summer vacation and shall be enrolled for school in C. to commence in September, 2012.
(c) The respondent father, Dr. Sherapartap Singh Rai, shall have generous access to the children upon reasonable notice to the applicant mother, provided that his access shall be supervised by the applicant or a designated supervisor of her choice, such supervision to continue until the father has been certified capable of resuming a full time medical practice by the Ontario Medical Association. The father shall at all times maintain his sobriety and abstinence from the use of recreational drugs from at least 48 hours before and during all access periods.
(d) The respondent father is entitled to reasonable telephone access to the children at times permitted by the applicant mother at her discretion, provided that he shall not engage the children in conversations about what they are missing by not being in Brampton.
(e) The respondent grandparents, Madanjit Singh Rai and Parmjeet Kaur Rai, shall not be entitled to any access, telephone or other direct or indirect contact with the children for a period of four months, except for telephone calls as stated in (f) below.
(f) The respondent grandparents may have one twenty-minute telephone call with the children between July 25 and July 29, 2012 and one twenty-minute telephone call each week commencing August 21, 2012. All telephone calls shall be at a time as permitted and monitored by the applicant mother, with the same restrictions as ordered regarding the respondent’s telephone calls in (d) above.
(g) Commencing November 23, 2012, the respondent grandparents may have six hours unsupervised access to the children every two weeks on a day agreed to by the mother. The grandparents’ access from that date to March 30, 2013, shall take place within a 30 kilometre radius of the mother’s home, and the grandparents shall be responsible for the pick-up and drop-off of the children for the access.
(h) Commencing April 2013, the grandparents shall be entitled to unsupervised access for one weekend a month from Saturday at 11:00 a.m. to Sunday at 6:00 p.m., subject to further Court Order upon motion heard by me in the event of problems relating to such access. The applicant mother shall deliver the children to the grandparents’ home at the commencement of the weekend access and the grandparents shall deliver the children back to the applicant mother’s home at the end of the weekend access.
(i) All other access shall be at the discretion of the applicant mother who may, if appropriate, provide for additional access if she deems this appropriate in the children’s best interests.
(j) In the event of any problems arising on access exchanges, the police in the jurisdiction where the access exchange is taking place shall assist to insure a peaceful transition.
(k) As it is the court’s expectation that the children in the long term will benefit from a normalized relationship with their grandparents, there shall be a review of the progress of the grandparents’ adherence to the restrictions against denigration of the applicant’s parental authority and manipulation of the children’s emotions with a view to expanding their access. This review shall be jointly scheduled by counsel through the office of the Brampton trial coordinator as a case conference to be held by me during the month of June 2013.
(l) The respondents shall not either directly or indirectly manipulate the children’s emotions by denigrating or marginalizing the applicant mother’s parental love and authority.
(m) All parties shall encourage a positive relationship of the children with the other parties in this dispute. All parties shall insure that there shall be no criticism of or disparaging comments about either parent or grandparent to or within the hearing of the children.
(n) The mother shall re-establish and regularly schedule the children’s appointments with an accredited therapist trained to work with children who have been involved in custody disputes, such therapy to continue for a period of at least 12 months commencing in September, 2012.
(o) Written submissions on costs and on the issue of support shall be submitted from the applicant by no later than August 15, 2012; from the respondents by no later than August 30, 2012; reply submissions, if any, by September 10, 2012.
Seppi J.
Released: July 20, 2012
CITATION: Rai v. Rai, 2012 ONSC 4267
COURT FILE NO.: FS-10-69975-00
DATE: 2012 07 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
S.R.
Applicant
- and –
SHERAPARTAP SINGH RAI and MADANJIT SINGH RAI and
PARMJEET KAUR RAI
Respondents
REASONS FOR JUDGMENT
Seppi J.
Released: July 20, 2012