Rikhye v. Rikhye, 2017 ONSC 4722

CITATION: Rikhye v. Rikhye, 2017 ONSC 4722

COURT FILE NO.: CV-162332-SR/16

DATE: 2017 08 03

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Savita Rikhye, Plaintiff

• and -

Rajesh Rikhye and Swadesh Rikhye, Defendants

BEFORE: Bloom, J.

COUNSEL: Ralph Swaine, counsel for the Plaintiff

Harold Rosenberg, counsel for the Defendants

HEARD: July 28, 2017

E N D O R S E M E N T

I. INTRODUCTION

1The Defendants on the one hand and the Plaintiff on the other have brought before me cross-motions raising the same issue: Should Reeta Kumar, the daughter of the Plaintiff, be permitted to attend the cross-examination of the Plaintiff on affidavits on August 16, 2017, as a moral support person for her mother?

II. FACTS

2From 2012 to April 2016 the Plaintiff lived with the Defendants, her son, Rajesh, and his wife, Swadesh, at 102 Seclusion Crescent, Brampton. The Plaintiff then moved out of that property and commenced to live with Reeta Kumar, her daughter.

3Soon after the action was commenced seeking, inter alia, to set aside the transfer of the Seclusion Crescent property from the Plaintiff to the Defendants on the basis of elder abuse. A motion for a certificate of pending litigation in respect of the property was also served. Further, at about the same time, Reeta and Savita reported Rajesh to the Peel police, and he was arrested for “elder abuse”, although no charges were ever laid.

4The cross-examination of the Plaintiff on two affidavits filed by her in support of the motion for a CPL has been scheduled for August 16, 2017.

5The Plaintiff takes medication for depression and anxiety according to a note from her doctor. Further, according to the affidavit evidence of her youngest son, Rakesh, the Plaintiff “is very loving and trusting of her caregivers…[and] will go to extreme lengths to avoid upsetting …her caregiver.” In questioning on that evidence, Rakesh testified that the Plaintiff is “very simple, and doesn’t like to upset anybody that is taking care of her, because she is very needy and doesn’t want to offend anyone.” He also confirmed that Reeta Kumar is now the Plaintiff’s caregiver.

6The Plaintiff’s motion seeks an order that Ms. Kumar be permitted to attend the cross-examination on her two affidavits as a moral support person.

III. GOVERNING PRINCIPLES

7The following principles emerge from two judgments of the Ontario Superior Court of Justice, the judgment of Master Dash in Poulton v. A.&P. Properties Limited, 2005 4105 and the judgment of Master Muir in DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335:

1. since a cross-examination on an affidavit is not a public hearing, a non-party may attend to assist a party only on the consent of the other side or on the order of the court;

2. the onus is on the party seeking such an order to prove entitlement to it;

3. the non-party should not be a witness at the subsequent trial;

4. the attendance of the non-party must not disrupt the examination process; and

5. the non-party must not take the role of witness or assist the witness in answering questions.

8I add to those principles the principle, which is inherent in our system of justice, that a court in exercising its jurisdiction as to whether to allow the presence of a non-party must do so having regard to both substantive fairness to the parties and the appearance of fairness.

IV. ANALYSIS

9Counsel for the Plaintiff in oral argument has contended that the Plaintiff is a “nervous wreck”, who is 84 years old and on anxiety and depression medications; that she is easily manipulated; that Rajesh Rikhye, who is alleged to have looted her assets, will be across from her at the examination; and that there is no one other than Ms. Kumar who can be present to give her the moral support she requires to keep her stress level down to testify.

10Counsel for the Defendants has contended in oral argument that the evidence demonstrates that the Plaintiff is easily manipulated; and that she will not lie in cross-examination but rather spin things in a manner to please Ms. Kumar, who has already demonstrated her views by attending at the police station to have Rajesh arrested. He also points out that the credibility of the Plaintiff will be an important issue on the CPL motion, and that the attendance at the police station will be explored on the Plaintiff’s cross-examination.

11Counsel for the Defendants concedes that I could properly permit the presence of an appropriate support person, but that Ms. Kumar is not appropriate for the reasons he has set out.

12In agree with that contention. I would not hesitate to approve the attendance of a health worker, friend, or relative who was appropriately qualified to reduce the anxiety of the Plaintiff by his or her presence so as to assist with a proper cross-examination.

13However, having regard to the principles I have discussed above, I find that the Plaintiff has not discharged her onus to obtain the order for Ms. Kumar’s attendance. To the contrary, the Defendants could not have confidence in the fairness of the cross-examination, if they saw Ms. Kumar who attended with the Plaintiff when she secured the arrest of Rajesh. Further, I believe that the timing of the commencement of the action, being soon after the Plaintiff went to live with Ms. Kumar, creates both a danger of substantive unfairness and the appearance of unfairness if Ms. Kumar is present for the cross-examination. I am mindful of the evidence of Rakesh that the Plaintiff wishes to please her caregiver. I am, accordingly, concerned that she may feel pressure, or be reasonably seen to feel pressure, to make her evidence more unfavourable to the Defendants than it would otherwise have been, in an effort to please Ms. Kumar. I make that observation, because it is with Ms. Kumar that she lives, and with whom she lived when the action was commenced and when she attended at the police station.

14I, therefore, grant the Defendants’ motion and dismiss the Plaintiff’s cross-motion. I hold that Ms. Kumar may not attend the cross-examination of the Plaintiff as a support person for the Plaintiff.

V. COSTS

15If the parties cannot agree on costs, I will receive written submissions on that issue. The costs submissions are to be no more than 3 pages, excluding a bill of costs. The Defendants are to serve and file their submissions within 14 days from release of these reasons. The Plaintiff is to serve and file her submissions within 14 days from service of the Defendants’ submissions. There is no right of reply.

Bloom, J.