Court File and Parties

COURT FILE NO.: FC-12-3056-0

DATE: 2014/03/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NIKHILESH HARIT, Applicant

AND

JASPREET HARIT, Respondent

BEFORE: M. Linhares de Sousa J.

COUNSEL: Rodney B. Cross, counsel for the Applicant

Richard P. Bowles, counsel for the Respondent

HEARD: March 3, 2014

ENDORSEMENT

Factual Background of the Motion

[1] On September 25, 2013, Mr. Justice Laliberté granted specified access to the Applicant father, Nikhilesh Harit, to his two children, Aneesha Harit, born July 22, 2004 and Ajeet Harit born December 16, 2006. At that time the parties had undergone a thorough assessment carried out by Dr. Arthur Leonoff dated July 2, 2013.

[2] Mr. Justice Laliberté found that the recommendations made by Dr. Leonoff in his report of July 2, 2013 relating to the custody of and access to the children of the marriage would be in their best interests and he granted his order accordingly. Mr. Justice Laliberté also recognized that his order was a temporary one, for the transitional period of adapting to the new reality in the context of what he called “a long standing acrimonious family setting.”

[3] Mr. Justice Laliberté concluded his endorsement with the following:

[T]hese arrangements should be discussed and monitored in the context of a case conference in mid January 2014, so that the parties should schedule each a conference by communicating with the trial co-ordinators; …

[4] Unfortunately, that case conference never took place before the events which brought the parties back to court on this motion. Ms. Harit has unilaterally terminated, all access to the two children granted to Mr. Harit under the order of Mr. Justice Laliberté dated September 25, 2013. Mr. Harit claims that Ms. Harit is in breach of that order. Ms. Harit does not deny that she is in breach of that order but submits that she has terminated the access of the children to their father in their best interests. She seeks to have Mr. Harit’s access resume only under supervision, along with other relief.

[5] Mr. Harit alleges that Ms. Harit is in contempt of the current order for access to his children and wishes an order to that effect and to have his access under the current order to be reinstated.

Dr. Leonoff’s Assessment of the Family

[6] As was recognized by Justice Laliberté, Dr. Leonoff, during the course of his assessment of all of the members of this family, became only too familiar with the dysfunctional and high conflict nature of the parental dynamics existing between these two parties and how this has affected the two children of this couple.

[7] Dr. Leonoff states at page 47 of his report as follows:

In general, therefore, I do not perceive any special needs regarding Aneesha and Ajeet although my interviews with them reveal that they are being affected by the chronicity of the angst and uncertainty. Further, they did witness violence and both were affected by the yelling they experienced. They have heard too much and the police have been involved too often not to ring alarm bells in the children. They hold their dad responsible and not their mother.

Mr. Harit might be inclined to blame his wife for this situation at least for her role in impressing the significance of these occasions on their kids. On the other hand, can we really judge her for summoning police if she felt threatened and harassed? The children accept that their father was out of control in these situations and although they both acknowledge that he does not become maladaptive with them, they do not second-guess their mother’s assessment either. In other words, they want their father to prove to them and their mother that he can rise to the challenge of parenting and serve as an asset.

[8] Dr. Leonoff saw the real challenge in this case might be to “rehabilitate the father’s image and role for the children”. He did not see “joint legal custody” as a viable option because it would “add to the conflict well into the future” between the parties.

[9] Nevertheless, Dr. Leonoff also recognized some potential problems in granting the mother sole custody at page 48:

Nevertheless, I am concerned that sole custody to the mother will enshrine a dysfunctional asymmetry, relegating Nikh Harit to the role of an unreliable parental figure that cannot be trusted. This would have far reaching consequences for the children and would lock Jaspreet Harit into the unenviable role of overseer. Further, it would dispossess an already powerless paternal figure and add to his “failure” in his own and the children’s eyes. I am quite certain that this would sustain the worst parts of their dynamic and undercut any hope of redress.

Thus, my proposal is that the parties accept joint legal custody with the provision that Ms. Harit would have “final say” while Mr. Harit could invoke secondary arbitration if he is not given proper opportunity for input or where a decision is made on a major issue affecting the children that he cannot accept. …

[10] It is evident from the reasons of Dr. Leonoff that Mr. Harit had to seriously address some of his deficiencies as a parent to his children, accept responsibility for them, and be less defensive about them so as to gain the necessary insight into his situation and conduct. Consequently, Dr. Leonoff recommended shared legal custody, primary residence with Ms. Harit and with Ms. Harit having final say about those matters impacting the children’s health, education and general welfare after consulting Mr. Harit and determining his views.

[11] Dr. Leonoff went on to specify the regular and generous access Mr. Harit should exercise to his children (see paragraphs 6 to 20 inclusive of Dr. Leonoff Report). At paragraphs 11 and 12 of his recommendations Dr. Leonoff states as follows regarding any change to access:

Any adjustment to regular access should be subject to focused reassessment. In terms of a request to increase access, this should not occur before Ajeet turns 9 years of age. The assessor should be a mental health professional with suitable expertise and experience. Any increase should only be considered if family tensions are lower, confidence in Mr. Harit higher and the schedule in place has been consistently and reliably observed.
Any further finding by the Ottawa CAS that Ajeet and Aneesha have been place at risk either by negligence or violence should be cause for immediate reassessment and a review of these recommendations. These suggestions for a parenting plan are based on an attenuation of risk factors and a movement towards better containment and a diminution of conflict.

[12] Ms. Harit submits that since the recommendations of Dr. Leonoff and the order of Justice Laliberté dated September 25, 2013, the conflict between herself and Mr. Harit has not been attenuated, the responsibility for which she places in the hands of Mr. Harit. While also making reference to much of the family history which was before Justice Laliberté, Ms. Harit relies on four incidents since that order which support, she submits, her justification for unilaterally terminating access. It is her position that Mr. Harit’s conduct during those four incidents show that he cannot control his anger and that he continues to place the children’s safety at risk. According to Ms. Harit, Mr. Harit’s access should be supervised until he has provided this Court with a psychiatric assessment as to his mental health.

[13] Mr. Harit takes the position, while he does not deny that the four separate incidents referred to by the mother were situations of tension and frustration for him and the children, they fall far short of justifying any unilateral termination of access, in view of the reports and observations of Dr. Leonoff of the dynamics between he and Ms. Harit. Furthermore, Ms. Harit, herself, must take some responsibility for the conflict that arose during the four incidents in question.

[14] Both parties have presented their own version of the four incidents and have produced recordings of their exchanges, which I have had occasion to hear.

The Four Incidents

[15] The four incidents in question took place on the following dates, October 23, 2013, October 25, 2013 weekend access, January 18, 2014 dance recital and February 1-2, 2014 weekend.

October 23, 2013, the Nanny Incident.

[16] Justice Laliberté granted his order on September 25, 2013 so this incident, dubbed the nanny incident would have taken place approximately after Mr. Harit had already had one or two visits with the children, apparently without incident.

[17] The conflict here arose when the children’s nanny did not respond to Mr. Harit’s many phone calls to the nanny regarding his bringing the children home from a visit and the transfer of the children to their home. The recording of this incident shows a very irate Mr. Harit asking the nanny why she did not answer the phone, to stop using the speaker phone, a nanny desperately trying to stay out of the parental conflict and the very audible whispers of Ms. Harit coaching the nanny about what she should say to Mr. Harit on speaker phone which only upset him even more. Mr. Harit after picking up the children was intent on waiting for the nanny to her regular bus stop to continue discussing the incident with her which clearly was bad judgment on his part. This incident took place in the presence of the children.

[18] With respect to this incident there is absolutely no reason why Mr. Harit should have gotten as upset as he did, especially when he had the children in his care. Nonetheless, I cannot conclude that Ms. Harit with her obvious whispering coaching of the nanny did not in her own way contribute to the escalating conflict.

October 25, 2013 Weekend

[19] This weekend would have been the weekend access following the incident with the nanny. Ms. Harit’s information about this incident all came from what the children reported to their mother after the weekend. The reporting from the children indicated that the weekend upset the children because of their father’s continued negative words about their mother and his continual complaints that he did not have the children 50 percent of the time. According to Ms. Harit, the children were visibly upset upon returning home. One has to ask how the children’s reporting to their mother came about. There is no evidence regarding that.

[20] Mr. Harit provided his own version of that weekend in an e-mail to his then lawyer (tab 21, exh. K). The conversations Mr. Harit says he has had with his children in that exhibit regarding their time with him, things their mother has said or done, shows very bad judgment on his part as a parent. There is no question that Mr. Harit appears to respond to statements made to him by his children and to his perceptions of Ms. Harit’s motivations in this litigation. However, these kinds of conversations, sucks the children into the parental conflict and demeans the other parent. It shows little insight on Mr. Harit’s part. This is not in the best interests of the children and he must stop engaging the children in such conversations.

January 18, 2014 Dance Recital

[21] During this incident, after some two and one-half months of access without incident, Mr. Harit had care of the two children because it was his weekend with the children. He had taken his daughter to her dance recital and Ms. Harit was also present at that recital. According to Mr. Harit, he took exception to Ms. Harit seeing his daughter Aneesha backstage to see to her daughter’s hair and make-up. The parties apparently had a disagreement over Ms. Harit doing this since it was, strictly speaking, Mr. Harit’s weekend. When Ms. Harit unilaterally decided to go backstage to see her daughter, Mr. Harit followed her, presumably to tell her not to do it. From the recording, Ms. Harit immediately became hysterical telling Mr. Harit to not follow her and that she would call the police. All of this was, of course, in the presence of the children. To add to the stress of the situation, Ms. Harit’s father, who was sitting in the audience proceeded to have a medical crisis and had to be taken to the hospital.

[22] Who should take responsibility for this incident? In my view, both of them equally. Ms. Harit should have respected Mr. Harit’s access time and not pursued a course of action that would inevitably contribute to conflict. What is less than perfect hair and make-up on a child compared to what those children experienced that day? There is a need for Ms. Harit to also learn and exercise some better judgment. Mr. Harit should not have followed Ms. Harit backstage with his son in tow. I am not quite sure what he was hoping to accomplish by doing that. Given the history of this family, did he really think that the parties would have a civil and polite conversation about the pros, cons and legality of Ms. Harit being back stage with their daughter? What is clear from this incident is that the parties’ contact with each other should be restricted and limited even if it means that one of them may miss some events in their children’s lives.

February 1-2, 2014, Weekend Relating to the Police Traffic Stop.

[23] It is hard to believe but this incident arose as a result of Ms. Harit not being able to hear her child on speaker phone, during their father’s access time and while they were in the car with their father and grandfather on their way to what was to be a joyful event for the children, namely, attendance at Winterlude. By the end of the conversation, according to Mr. Harit, Ms. Harit ended up hanging up and giving instructions for the children to call from a land line. Ms. Harit makes no mention of this part of the incident. As a result, Mr. Harit was extremely frustrated and ended up being stopped by the police, an incident that did not go much further than that police stop. The children never did make it to Winterlude that day. Ms. Harit indicates that the children reported to her that during that weekend their father was angry and said negative things about her.

[24] Who can take responsibility for this incident which again arose as a result of the contact the parties had with each other during Mr. Harit’s access time like the previous incident? I believe both parties contributed to this incident. There is no question that Mr. Harit’s response was inappropriate and not in the best interests of the children.

[25] I conclude that, based on the evidence of both parties to this incident, I have sufficient evidence to reach my conclusions regarding this incident without making an adverse inference against Mr. Harit, because he has not presented an affidavit from his father, who was present during the police stop. I fail to see how embroiling further extended family members in this family dispute, which has already been done, will in any way advance the best interests of the children.

[26] As a result of this last incident Ms. Harit unilaterally terminated access. The children have not seen their father since February 5, 2014. As a result, Mr. Harit and Ms. Harit have brought their respective motions.

[27] There is no question that these children continue to suffer from their parents’ conflict. There is also no question that Mr. Harit still has a long way to go in the control of his frustration and anger at his parental situation. He has yet to learn what is an appropriate response to the parental conflict, one that is child focused rather than one that is focused on injustices to himself and a historical family situation that he helped create. Mr. Harit has communicated with his lawyer that he is “emotionally, mentally, and physically drained.” He should try to imagine how his children are feeling and attempt to give them some parental protection instead of drawing them into the conflict. He will also have to decide whether he has the emotional, mental and physical energy to create a conflict-free setting for his children’s visits. If not the existing visits, as recommended by Dr. Leonoff will have to be reconsidered.

[28] Ms. Harit justifies her unilateral termination of access in the words of Justice Laliberté and Dr. Leonoff that the existing access regime was set up in the context of them being discussed and monitored by way of a case conference which was to take place in January and which never did take place. Ms. Harit indicates that she was prepared to leave the review to the newly set case conference date in March of 2014. However, she sees the last incident as creating “serious jeopardy” to her children and consequently, she chose to terminate access.

[29] On the evidence, I believe that Ms. Harit, by her conduct also contributed to the escalating conflict in at least three of the four incidents. Furthermore, not in any of those incidents would I conclude that her children were in “serious jeopardy” so as to terminate unilaterally the access of her children to their father.

[30] At page 48 of his report Dr. Leonoff pointed out the disadvantage to these children if sole custody were awarded to their mother. I believe Ms. Harit’s unilateral termination of access in February of 2014, rather than bringing the matter before the court first or even returning the matter to Dr. Leonoff, is perhaps a realization of that concern expressed by Dr. Leonoff. Dr. Leonoff spoke of not increasing access until family tensions are lowered. He did not entertain a termination of access until family tensions are lowered but rather a review. That review should have taken place before access was terminated unilaterally by Ms. Harit or until the court ordered such a termination.

[31] For these reasons, the existing order of Justice Laliberté is immediately reinstated with access to commence the first full weekend following the release of this endorsement, until further order of this Court.

[32] The only variations I make to the existing order of Justice Laliberté are the following.

[33] Telephone access should be unrestricted for the children. Neither parent shall call the children while they are in the care of the other parent. The children shall be free to call the other parent and neither parent will in anyway interfere with those calls. Nor will they listen in on those calls. Both parents are ordered to keep those calls, which the children shall make to them, to no more than 10 minutes.

[34] For the time being, neither parent shall attend any of the children’s events or be present at these events while the children are in the care of the other parent.

[35] Neither parent is ever to speak negatively of the other parent while the children are in their care. Neither parent is to speak to the children about any issue in this litigation even if the subject is raised by the children.

[36] It is strongly suggested that the parties return to Dr. Leonoff to establish some ground rules regarding when there should be parental contact in the lives of these children and any future counselling or medical treatment the parents may wish to pursue. If the parties choose to do this, Dr. Leonoff should be given a copy of the order of Justice Laliberté and a copy of this endorsement.

[37] I have heard the arguments of counsel for Ms. Harit in support of ordering disclosure that would breach Mr. Harit’s solicitor-client privilege with his previous lawyer. I was not persuaded by his arguments. Nor do I conclude that such disclosure was necessary to determine this motion in the best interests of the children.

[38] The last issue is that of costs. Counsel for Mr. Harit shall have two weeks from the date of this endorsement to serve and file his written submissions on costs of the motion. Counsel for Ms. Harit shall then have two weeks from that date to serve and file her written submissions on costs of the motion. Counsel for Mr. Harit shall then have one week to serve and file a reply, if any, which he may wish to make.

M. Linhares de Sousa J.

Released: March 19, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE