COURT FILE NO.: FS-13-76817-00
DATE: 2021 06 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
K.K.
Bhupinder Nagra
Applicant
- and -
M.M.
Aida Pasha
Respondent
HEARD: November 30, 2020, December 1-4 and 14-18, 2020, February 5, 2021, March 17-18 and 24-26, 2021, and April 1, 6 and 8, 2021.
REASONS FOR JUDGMENT
Petersen J.
PRELIMINARY NOTES. 5
OVERVIEW.. 5
Introduction. 5
Parenting Arrangements Prior to Trial 7
ISSUES AT TRIAL. 8
Dismissal of M.M.’s Equalization Claim.. 10
THE TRIAL. 11
Evidentiary Rulings. 12
Request for Dr. Gobrial to Give Oral Evidence. 12
Admissibility of Hearsay Evidence. 13
Dr. Roberts’s Clinical Notes. 19
North York General Hospital Records. 19
Dr. Zalan’s Notes. 21
Boost Assessment Report 22
Betty Stockley’s Letters and Supervision Notes. 24
Other Medical Reports. 26
Dr. Gobrial’s Letters and Notes Regarding the Children. 28
EMS Ambulance Report 30
Police Occurrence Reports. 31
CAS Records. 31
V.K.’s Email Messages to CAS. 34
Barry Brown’s Letter 36
APCO Supervision Notes. 38
Rejected Hearsay Evidence. 39
Transcript of 911 Call Made by V.K. 40
Video Recordings of Exchanges. 41
Video Recording of J.K. 42
Surreptitious Audio Recording (and Transcripts) of the Father 43
Dr. Goldstein’s Reports & CPSO Materials Relating to Dr. Goldstein. 47
Interpretation of the Regulated Health Professions Act 50
CPSO Materials Relating to the Father 63
Judicial Interviews of the Children. 65
V.K.’s Affidavit 67
Credibility Findings. 69
RELATIONSHIP HISTORY PRIOR TO SEPARATION. 72
Engagement and Married Life in India (December 2002 to November 2007) 72
Married Life in Newfoundland (December 2007 to June 2011) 80
Married Life in Toronto (June 2011 to September 2011) 88
Sustained Manipulation of Mother’s Mental Health. 89
Newfoundland (2010-2011) 89
Toronto (2011) 99
M.M.’s Evidence About her Hospitalization (September 2011) 101
Alleged Overdose in India (2010) 106
K.K.’s Evidence About M.M.’s Hospitalization. 117
Post-Discharge Married Life in Toronto (October 2011 to August 2012) 128
Conclusions Regarding K.K.’s Manipulation. 134
Married Life in Brampton (August 2012 to October 2012) 136
Culminating Incident that Triggered Separation. 152
POST SEPARATION. 156
M.M.’s Actions Immediately After Separation (November / December 2012) 156
K.K.’s Actions Immediately After Separation (November / December 2012) 159
K.K.’s Visit to Bur Oak Medical Centre. 159
Ontario Court of Justice Proceeding. 162
Commencement of this Proceeding in Superior Court of Justice. 165
Children in Father’s Custody (January 4, 2013 to March 1, 2013) 166
Mother’s Updated Medical Evidence and Motion for Custody. 170
Children in Mother’s Custody (March 1, 2013 to March 19, 2014) 171
Finding of Parental Alienation (March 2014) 174
Children in Father’s Custody (March 2014 to November 2018) 178
November 30, 2018 Interim Access Order 194
Father’s Interference with Mother’s Parenting Throughout 2019. 204
OCL Interviews and Voice of the Child Report (November 2019) 218
“Coffee Time Access” (November-December 2019) 224
Adjournment of Trial under False Pretenses in January 2020. 226
Parenting Arrangements from February 2020 to September 2020. 231
V.K.’s Change of Residence (September 2020) 236
Holiday Access December 2020. 240
Adjournment of Trial under False Pretenses in January 2021. 242
Parenting at Time of Trial 246
Counselling for J.K. and Electronic Monitoring. 247
ANALYSIS OF CHILDREN’S BEST INTERESTS. 250
Parties’ Positions on Parenting. 250
Statutory Framework for Analysis. 253
Analysis of Relevant Factors. 256
Parenting Orders. 269
SUPPORT ISSUES. 279
Support Paid To Date. 279
Statutory Framework for Calculating Income for Support Purposes. 279
Parties’ Positions on Support Issues. 280
M.M.’s Line 150 Income Adjusted per Schedule III of the FCSG.. 282
Should Additional Income be Imputed to M.M.?. 283
K.K.’s Line 150 Income Adjusted per Schedule III of the FCSG.. 293
Should Additional Income be Imputed to K.K.?. 300
Calculation of Retrospective Child Support Payments. 307
Prospective Child Support 312
Section 7 Expenses. 312
M.M.’s Entitlement to Spousal Support 315
Amount and Duration of Spousal Support 318
TIMETABLE FOR WRITTEN SUBMISSIONS. 320
Written Submissions on Spousal Support 320
Written Submissions on Life Insurance to Secure Support Payments. 321
Written Submissions on Proportionate Contributions to s. 7 Expenses. 322
Joint Written Submissions Regarding Costs. 323
PRELIMINARY NOTES
NOTE 1: This divorce proceeding commenced in January 2013. The Trial started on November 30, 2020 and concluded on April 8, 2021. Amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) were enacted and came into force on March 1, 2021, in the middle of the trial. Pursuant to s. 35.3 of the Divorce Act, I have decided the parenting issues in this case in accordance with the current legislative framework, but I adopt the former terminology of “custody” and “access” (which is no longer used in the statute) when referring to interim orders made in this case before March 1, 2021 and to other cases decided under the previous statutory regime.
NOTE 2: Relying on the inherent jurisdiction of this court, I order that the publication of this decision use initials only for the names of the parties and their children. Both parties requested this order and I agree that it is appropriate. The children have suffered significant emotional damage and should be shielded from potential further harm that could result from the publication of their names or of their parents’ names. I therefore refer to the Applicant as “K.K.” or as “the father” and to the Respondent as “M.M.” or as “the mother” throughout this decision.
NOTE 3: I have ordered that portions of the record be sealed from the public and be accessible only to the parties, their counsel, and authorized court staff. Specifically, the mother’s medical records that were tendered as exhibits have been sealed because of the sensitive and confidential nature of the contents of those documents, and the potential harm that could be caused to her if the documents were disclosed. The Applicant father may only access and use the sealed exhibits for purposes relating to an appeal of this Judgment.
OVERVIEW
Introduction
[1] This case is a cautionary tale about the perils of courts granting interim parenting orders based on motions brought by a party without notice to the other side or based on an assessor’s recommendations without the benefit of a full trial.
[2] It is also a heartbreaking saga of family violence and parental alienation. It exposes the extreme vulnerability of immigrant women who find themselves trapped in a relationship with an abusive intimate partner and no established connections to community supports or social services.
[3] The children involved in this case are the tragic casualties of a protracted high-conflict legal battle between the parties. The father’s Application was issued on January 3, 2013. The mother filed her Answer on February 27, 2013. Unfortunately, for a variety of reasons, the trial did not start until November 30, 2020. Both parties contributed to the delay. Some of the delay (i.e., May 2020 to November 2020) was due to the COVID-19 pandemic.
[4] The parties had approximately 40 court appearances at motions and conferences prior to the trial. Both were represented by different counsel at different points in time. Both self-represented for periods of time. A single case supervision judge was seized of the file from March 2014 to October 2019, but over the entire duration of the proceeding, the parties appeared before ten different judges. I was not involved in the case prior to the first day of trial.
[5] Numerous interim findings were made at various steps in the proceeding, some of which I have overturned with the benefit of a more comprehensive record. Most notably, a finding of parental alienation by the mother was made by a motion judge in March 2014. That finding was based, in large part, on the expert evidence of a court-appointed assessor named Sol Goldstein. For reasons explained below, Dr. Goldstein’s reports were not relied upon at trial, except insofar as they relate to the narrative of what transpired. I ultimately made a finding, based on the totality of the evidence at trial, that the mother did not engage in any alienating conduct, but rather was the target of the father’s vilification and parental alienation.
Parenting Arrangements Prior to Trial
[6] The parties have two children. A daughter, V.K., who is 16 years old, and a son, J.K., who is 11 years old. They were 8 and 3 years old when their parents separated in November 2012.
[7] In the wake of the parties’ separation, the court issued a series of three alternating temporary sole custody orders. The children’s primary residence was transferred back and forth between their parents’ homes in Brampton and Toronto. V.K.’s school changed with each move. There were consecutive weeks when they had no contact, only telephone contact, or only supervised visits with the other parent. It must have been an extremely confounding experience for them to be repeatedly uprooted.
[8] Eventually, after living with their mother in Toronto for a year, with only J.K. having regular parenting time with his father, the interim finding of parental alienation was made in March 2014 and temporary sole custody of the children was granted to the father. For the next six and a half years, the children resided with the father in the matrimonial home in Brampton and had extremely limited parenting time with the mother. There were lengthy periods in 2014, 2015 and 2019 when they had virtually no contact or communication with her.
[9] In September 2020, V.K. left her father’s residence and moved in with her mother. At the time of trial, the children were living in separate residences, with J.K. visiting the mother’s house on weekends.
Issues at Trial
[10] The central issues in this case are the credibility of the parties and the best interests of the children. More specifically, the issues for me to determine are as follows:
(a) How should parental decision-making responsibility be allocated?
(b) With whom should the children primarily reside?
(c) What parenting schedule should be followed for each child and what, if any, terms and conditions should be imposed on the parties’ parenting time?
(d) Should income be imputed to either or both of the parties for support purposes?
(e) Does the father owe retrospective child support to the mother and if so, how much?
(f) Does the mother owe retrospective child support to the father and if so, how much?
(g) What child support should be paid on an ongoing basis?
(h) What future contributions must the parties make to special and extraordinary child-related expenses pursuant to s. 7 of the Federal Child Support Guidelines, SOR/97-175 (in addition to any monthly child support payments that they are required to make)?
(i) Is the mother entitled to partial reimbursement from the father of s. 7 expenses that she has already incurred and, if so, how much?
(j) Has the father overpaid spousal support since the parties separated and if so, how much? Conversely, does the father owe retrospective spousal support to the mother and if so, how much?
(k) Does the mother have an entitlement to ongoing spousal support payments and if so, in what amount and for what duration?
(l) What, if any, orders should be made regarding benefits coverage and life insurance to secure the parties’ support obligations?
(m) Should any retrospective support payments be offset against outstanding costs awards?
(n) Should a restraining order be imposed on the father?
Dismissal of M.M.’s Equalization Claim
[11] In her pleadings, the mother made a claim for an equalization payment. At a Trial Management Conference on October 28, 2019, the case supervision judge ordered that she was “deemed to have no claim to equalization” because of her failure to file an updated Financial Statement as ordered by the court. She had been given several opportunities to update her Financial Statement and had repeatedly failed to comply with court-imposed deadlines.
[12] The mother filed a motion on October 27, 2020, seeking an order to have her equalization claim reinstated. The motion was adjourned and set down to be heard on the first day of trial. I denied the motion based on Rule 25(19) of the Family Law Rules, O.Reg.114/99, which governs the court’s jurisdiction to change a previous order.
[13] Rule 25(19) provides that an order may be changed if it was obtained by fraud, contains a mistake, or was made without notice. None of these circumstances applies in this case. The mother had been warned by the case supervision judge in an Endorsement dated May 17, 2019 that an order terminating her equalization claim might be made if she did not serve and file an updated Financial Statement. She therefore had notice before the order was made. She did not allege that the order was obtained by fraud or that it contained a mistake. She therefore failed to establish a basis for the relief that she was seeking.
The Trial
[14] The trial took much longer than was originally anticipated. It was scheduled for only five days, which was a gross underestimation by both parties. It lasted 18.5 days, including one day devoted to preliminary issues and an emergency one-day mid-trial motion. The father was initially representing himself, but he retained Ms. Bhupinder as counsel for the mid-trial motion hearing and she continued to represent him throughout the second half of the trial.
[15] The father, while self-representing, was permitted to adduce previously sworn affidavits (prepared for pre-trial motions) as part of his evidence-in-chief. Both parties testified for multiple days and were cross-examined at length by opposing counsel.
[16] Two additional witnesses were called during the trial. The first was Charles Thomas, a Peel Children’s Aid Society (CAS) worker who has been involved with the family since February 2019. The second was Wendy MacKenzie, a clinician from the Office of the Children’s Lawyer (OCL), who interviewed both children and prepared a Voice of the Child report dated December 2, 2019.
Evidentiary Rulings
[17] Numerous evidentiary rulings were made at the outset of the trial and during the trial. No oral reasons or only cursory reasons were provided for most of the rulings, with written reasons to follow. Those reasons are set out below.
Request for Dr. Gobrial to Give Oral Evidence
[18] At the commencement of the trial, the mother sought leave of the Court to add her current family physician, Marcos Gobrial, to her witness list. She wished to call Dr. Gobrial to testify about his knowledge of her health as it relates to her ability to care for the children and to her employability. The latter issue is relevant to the father’s argument that income should be imputed to her based on intentional underemployment.
[19] The father objected to the mother’s request. He expressed concern about potential bias because he had made a complaint about Dr. Gobrial to the College of Physicians and Surgeons of Ontario (CPSO).
[20] No report from the doctor or will-say statement had been served on the father. No disclosure of the doctor’s clinical notes had been made. The potential prejudice to the father, who was at that time self-represented, was obvious.
[21] No explanation was provided by the mother for why she waited until the eve of trial to raise this issue. The parties’ witness lists had been fixed by the case supervision judge during a Trial Management Conference on October 28, 2019. She had more than a year to provide notice and disclosure to the father.
[22] For the above reasons, I denied the mother’s request to add Dr. Gobrial to her witness list. Later during the trial, the mother attempted to introduce a letter from Dr. Gobrial expressing his professional opinion about medical restrictions on her employability. I refused to admit the letter. The prejudice to the father of permitting Dr. Gobrial’s evidence to be adduced in a hearsay fashion, without the opportunity for cross-examination, was even greater than the potential prejudice of adding him to the mother’s witness list on the first day of trial.
Admissibility of Hearsay Evidence
[23] Both parties sought to rely on extensive hearsay evidence during the trial. Few objections were raised to its admissibility, but the father was self-representing during the first half of the trial and may not have appreciated the hearsay nature of the evidence or his opportunity to object to it (although his right to object was explained to him at the outset of the trial).
[24] Out-of-court statements can only be admitted for their truth if they fall within one of the traditional exceptions to the hearsay rule or within the principled exception to the rule, as developed in Supreme Court of Canada jurisprudence. The latter exception permits judges to admit hearsay evidence for its truth if it meets the twin threshold requirements of necessity and reliability, provided that the prejudicial effect of the evidence does not outweigh the benefit of receiving it. As Charron J. explained in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49:
The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.
[25] The necessity criterion does not require proof of the declarant’s unavailability or incompetence to testify. There are varying degrees of necessity, ranging from the fact that the declarant is deceased to the fact that little would be gained by the declarant’s attendance in court. “Necessity” has been given a flexible definition, capable of encompassing these diverse situations. “Reasonable necessity” has become the test and it may be met in circumstances where only expediency or even convenience militate in favour of admitting the evidence, especially where there are high circumstantial guarantees of reliability: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22 (QL), at paras. 106-107.
[26] The intrinsic risks associated with hearsay evidence were explained by the Supreme Court in B.(K.G.), at paragraph 68:
When hearsay evidence is tendered, the trier of fact is being asked to act on second-hand testimony: the trier never actually hears or sees the hearsay declarant make the statement, and so has no basis on which to evaluate the statement for him or herself. Rather, the trier of fact must rely on the account of the statement given by the testifying witness, with all of the inherent weaknesses of recollection and perception that human witnesses possess.
[27] In this case, however, almost all the hearsay evidence is documentary in nature, so the risk of having to rely on a person’s “inherently weak” recollection of a declarant’s statements is not present. The documents in question were generated years ago and likely contain a more accurate record of the authors’ observations than could be obtained if they testified at trial, given the passage of time. When written records are created contemporaneously by someone having personal knowledge of the matters being recorded and under a duty to make the entry, such records are admissible as prima facie proof of the facts stated therein: Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608, at pg. 626; B.(K.G.), at para. 107.
[28] The reliability criterion addresses a threshold of reliability, rather than ultimate reliability: B. (K.G.), at para. 835. The admission into evidence of documents that contain hearsay statements in no way precludes a party from challenging the accuracy of the entries in the document.
[29] When dealing with documentary hearsay evidence, it is important to consider whether the documents constitute business records that fall within the statutory exception to the hearsay rule set out in s. 35 of the Evidence Act, R.S.O. 1990, c. E.23:
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
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(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.
[30] The leading case on the interpretation of s. 35 of the Evidence Act is Setak Computer Services Corp. v. Burroughs Business Machines Ltd., [1977] 15 O.R. No. (2d) 570 (Ont. H.C.) (QL), which includes the following passages:
40 … [I]f the writings or records offered in evidence fall within the broad wording of section 36 [now s. 35] and satisfy the criteria of that section, then they should be admitted, even though they do not fall into the category of what are commonly considered to be business records, such as ledger accounts, time cards, payroll records, and other routine commercial records at which the legislation was primarily but obviously not exclusively aimed.
44 …It is my view that once the writings or records meet the criteria of section 36 [now s. 35], the court has no discretion as to whether or not they should be admitted, but may in the circumstances attach no weight to them.
47 It is clear from the wording of section 36 [now s. 35] that it is not necessary that the maker of the writings or records be called to personally identify the documents. …
54 …Unless it appears from the context of the record, or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in the transcribing, then in each case, it would seem to me, the court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory.
56 … [W]herever it is clear from the context of the minutes that some positive act, transaction, occurrence or event happened at a meeting, then the minutes are prima facie evidence thereof.
57 Where the minutes appear to record an oral statement attributable to one of the persons present, I see some difficulty however, in admitting the minutes as prima facie evidence of any act, transaction, occurrence or event described in such a statement. …
59 However, … the minutes may not be received to prove the validity of any opinion expressed at a meeting. I say that, regardless of who offered the opinion. …
60 It is clear that by virtue of subsection 4, of section 36 [now s. 35], lack of personal knowledge by the maker does not affect the admissibility of the writing or record, and that entries may be based upon information furnished to the maker by others. That seems to me to be a reasonable construction without in any way torturing the meaning of the section, and obviously the section contemplated admission of hearsay evidence. The question is, to what extent does it open the door for the admission of pure hearsay, to prove the acts, transactions, occurrences or events described in such hearsay? May the writings be used to establish as proof of the contents statements made by any third party and duly written down or recorded by an entrant acting in the regular course of business?
63 … The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe section 36 [now s. 35] as admitting hearsay evidence of any third party would make the section an almost limitless dragnet for the introduction of random testimony from volunteers outside of the business whose information would be quite beyond the reach of the usual test of accuracy. In my opinion, section 36 [now s. 35] of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.
[31] Another relevant exception to the hearsay rule is the admissibility of admissions against interest made by one of the parties outside of court. In R. v. Foreman (2002), 2002 6305 (ON CA), 62 O.R. (3d) 204 (Ont. CA), at para. 37, the Court of Appeal for Ontario held that, “[a]dmissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis.”
[32] Having reviewed the applicable exceptions to the general rule that hearsay evidence is inadmissible, I will now turn to an examination of the specific hearsay evidence tendered by the parties in this case.
Dr. Roberts’s Clinical Notes
[33] Dr. Bernard Roberts was the mother’s family doctor from 2008 to 2011. The father adduced and sought to rely on his clinical notes at trial for the truth of their contents.
[34] The clinical notes document the doctor’s personal observations of the mother (his patient) and of the father, on occasions when the father attended the doctor’s visits. Dr. Roberts recorded information shared with him by the parties, as well as actions taken by him during the consultations, such as the prescription of medications to the mother. He also expressed a variety of medical and non-medical opinions. His notes were made contemporaneously, in the usual course of his professional practice and pursuant to his duties as a physician.
[35] Based on s. 35 of the Evidence Act, the clinical notes are admissible as evidence of Dr. Roberts’s personal observations of the parties during the visits. They are also admissible as evidence that certain statements were made by the parties during the visits, but not for the truth of those statements. Any opinions expressed by Dr. Roberts in the notes are admissible only for the narrative of what transpired, not for the validity of the opinions.
North York General Hospital Records
[36] Both parties sought to rely on records relating to the mother’s hospitalization at North York General (NYG) Hospital in the fall of 2011. The records contain the personal observations of four different psychiatrists who examined the mother, at least two of whom also spoke to the father about the mother’s mental health. They document statements made to the doctors by both parties. They also document events, such as the mother’s involuntary admission to the hospital and the reasons for that admission. Finally, they include diagnostic information and medical opinions expressed by the treating physicians.
[37] The hospital records were all dictated by the physicians shortly after their examinations of the mother and their conversations with the father. They are sufficiently contemporaneous to satisfy the requirements of Setak. The records were generated in the usual course of the doctors’ professional practice and in accordance with their duty as physicians.
[38] Based on s. 35 of the Evidence Act, the hospital records are admissible as evidence of the psychiatrists’ personal observations of the mother. They are also admissible for the fact that certain statements were made by the parties to the psychiatrists, but not for the truth of those statements. Any medical opinions expressed in the hospital records are admissible only for the narrative of what transpired (i.e. to show that certain diagnoses were made by specific physicians at certain points in time) and not for the validity of the opinions.
Dr. Zalan’s Notes
[39] Dr. Zalan is a psychiatrist who treated the mother after her discharge from NYG Hospital in October 2011 up until December 2012. Both parties sought to rely on his Clinical Notes dated October 21, 2011, as well as on handwritten notes that he gave to each of them in October 2012. The mother also sought to rely on letters that Dr. Zalan provided to her in 2013, after he stopped treating her.
[40] For the same reasons articulated above with respect to the admissibility of Dr. Roberts’s clinical notes, Dr. Zalan’s October 22, 2011 clinical notes are admissible as evidence of his personal observations of the parties during that visit and of the fact that certain statements were made by the parties during the visit, but not for the truth of those statements. Similarly, any medical opinions expressed by Dr. Zalan in the clinical notes are admissible only for the narrative of what transpired and not for the validity of his opinions.
[41] The handwritten notes given by Dr. Zalan to the parties in October 2012 and the letters provided by Dr. Zalan to the mother after the termination of their doctor-patient relationship are admissible only for the narrative of events, not for the truth of the statements contained in the documents, nor for the validity of any opinions expressed by the doctor.
Boost Assessment Report
[42] In May 2013, V.K. was referred to Boost, an organization that conducts assessments of youth for the purpose of identifying possible trauma resulting from interpersonal abuse or exposure to family violence. V.K. was, at that time, living with her mother, who had temporary exclusive custody of the children.
[43] V.K. attended six sessions at Boost between July and September 2013. The sessions were then stopped because the father objected to V.K. attending at Boost while Dr. Goldstein’s court-ordered assessment was simultaneously conducted.
[44] A report was prepared by the Boost social workers who had carriage of the file. The report contains statements made by V.K. during private sessions; the results of V.K.’s psychometric testing; self-reported information from V.K. about her affect and behavioural regulation, school and social functioning; and opinions and recommendations expressed by the social workers.
[45] The report was tendered by the mother for the truth of statements made by V.K. (as recorded in the report) and for the opinions expressed by the social workers. The father sought to rely on the report as evidence that certain statements were made by V.K., but not for the truth of those statements.
[46] The report is not admissible for the validity of any recommendations or opinions expressed by the social workers, who have not been qualified as experts. It is admissible for the fact that V.K. made certain statements to the social workers. The report was generated by medical health professionals who documented statements made by V.K. during assessment sessions. The reliability of the documentation is satisfied by the manner in which the report was generated. The necessity of relying on the report as evidence of V.K.’s statements is established by the fact that nothing would be gained by calling the social workers to testify about what V.K. said to them almost eight years ago. The statements recorded in their report are more reliable evidence of what she said than their recollection would afford.
[47] The report is not admissible for the truth of statements made by V.K. to the social workers. The sessions at Boost were conducted in the context of assessing whether V.K. demonstrated signs of trauma from exposure to family violence. The social workers were operating from the premise that V.K. had been exposed to family violence – a premise that is disputed by the father. The context in which the statements were made undermines the reliability of the evidence if tendered for its truth. Moreover, the evidence would be prejudicial to the father and, given its questionable reliability, it is not admissible for the truth of V.K.’s statements.
Betty Stockley’s Letters and Supervision Notes
[48] The mother adduced several letters written by Betty Stockley, a Registered Psychotherapist who provided her with court-ordered counselling on the topic of parental alienation in 2014. Ms. Stockley was approved by the case supervision judge to deliver the counselling after being cross-examined by the father’s counsel. In 2015 and 2016, with the court’s approval, Ms. Stockley supervised multiple sessions of reintegration between the mother and the children after an extended period of separation.
[49] All but one of Ms. Stockley’s letters are addressed to the attention of the court. They do not satisfy the statutory requirements for the admissibility of business records under s. 35 of the Evidence Act because they were not written contemporaneously with the acts and events described and were not made in the ordinary course of Ms. Stockley’s therapy. Rather, they constitute summaries written after the fact and were prepared at the request of the court or at M.M.’s request for the court proceeding.
[50] Portions of some of the letters are, however, admissible for limited purposes, pursuant to the principled exception to the hearsay rule. The court-addressed letters dated from 2014 and 2015 summarize Ms. Stockley’s client relationship with the mother and the counselling that she provided. They are admissible as evidence of the dates of the sessions, the content of the counselling and M.M.’s participation in and engagement with the therapy. For those purposes, the reliability criterion is satisfied by the fact that the letters were generated at the request of the court and were prepared based on contemporaneous notes made in the usual course of Ms. Stockley’s professional duties. The necessity criterion is also satisfied by the fact that Ms. Stockley, if called to testify, would likely not be able to provide additional or better evidence beyond that which she recorded in her notes more than five years ago.
[51] Ms. Stockley’s court-addressed letters from 2014 and 2015 also include her opinions about the mother’s psychological functioning and recommendations about parenting, which the court did not ask her to provide. These portions of the letters are not admissible for any purpose, as Ms. Stockley was not qualified as an expert to provide such opinions.
[52] One of Ms. Stockley’s letters, dated February 19, 2015, is addressed to M.M. It recounts interactions that Ms. Stockley had with Dr. Goldstein, who was appointed by the court to oversee the parental alienation therapy that Ms. Stockley was delivering. The purpose for which the letter was drafted and the circumstances under which it was generated are unknown. The letter does not satisfy the reliability criterion and therefore constitutes inadmissible hearsay. I have not relied on that letter for any purpose.
[53] Finally, Ms. Stockley’s letter dated January 25, 2016 records her personal observations made during approximately a dozen supervised visits between the children and the mother in her office. It documents statements made in her presence by the children and by the mother during those visits. Pursuant to the principled exception to the hearsay rule, the supervision notes contained in this letter are admissible as evidence of the acts, occurrences and statements observed and recorded by Ms. Stockley.
Other Medical Reports
[54] The mother adduced multiple medical reports from her current family physician (Dr. Gobrial); from two psychiatrists (J. Srinivasan and Hagen Rampes) who assessed and treated her; from a psychologist (Arpita Biswas) who also assessed her; and from another psychologist (Pushpa Kanagaratnam) who provided her with counselling on parental alienation. These reports contain statements made by the mother to the doctors who authored them. They also contain the doctors’ opinions about her mental health diagnoses and prognoses.
[55] The father sought to rely on the reports for the fact that certain statements were made by the mother to the doctors during her assessments. The mother did not object to the admissibility of the reports for that purpose and, in fact, confirmed that many of the statements were made. A few of the statements were inconsistent with statements that she made during the trial. The reports are admissible for the fact that prior inconsistent statements were made by her.
[56] Most of the mother’s statements as recorded in the doctors’ reports are consistent with the evidence given by her during the trial. These prior consistent statements are not admissible, let alone for their truth. They are inadmissible because they are self-serving and have no probative value: R. v. Evans, 1993 102 (SCC), [1993] 2 S.C.R. 629, at para. 34. The fact that the mother said things out-of-court previously that are consistent with the statements she made under oath during the trial does not constitute corroboration of her own evidence. To admit the statements for that purpose would be contrary to the rule against oath helping. Moreover, repetition of the same statement over and over again does not render the statement any more likely to be true.
[57] However, the psychiatrists’ and psychologists’ reports are admissible, pursuant to the principled exception to hearsay, for the purpose of establishing the narrative of what transpired in this case (i.e., that the mother consulted certain health care professionals on specific dates for particular reasons, that the doctors produced reports for the court on certain dates, etc.).
[58] With the father’s explicit consent, which was expressed with the benefit of his counsel, these medical reports were admitted for the truth of certain statements recorded in them and for the validity of certain opinions expressed about the mother’s mental health. Specifically, the mother sought to rely on the letters and reports from Drs. Gobrial, Srinivasan and Rampes to establish that: (1) she has not been taking any psychotropic medications or mood stabilizers since 2013, (2) she has not exhibited symptoms of mania or depression, and (3) she does not currently suffer from any major mental health condition that requires treatment. Ms. Bhupinder confirmed that these facts are not disputed. She clarified on the record that the father is not asking the court to award parental decision-making authority and principal residence of the children to him based on an allegation that the mother is unable to care for them due to mental illness.
Dr. Gobrial’s Letters and Notes Regarding the Children
[59] In addition to the above-discussed letters and reports from Dr. Gobrial pertaining to M.M., the mother also produced letters written and signed by Dr. Gobrial in his capacity as the children’s family physician. One is a typed letter dated January 24, 2014 and the other is a short, handwritten note dated June 5, 2013. Both documents contain the doctor’s personal observations of the children and record statements and disclosures made to him by the children during their visits to his office. The disclosures convey alleged mistreatment of V.K. by the father and disparagement of the mother by the father in J.K.’s presence. The mother sought to rely on Dr. Gobrial’s letters for the fact the statements were made to him by the children, and also for the truth of the content of the children’s statements.
[60] The letters are addressed “To whom it may concern”. They do not form part of Dr. Gobrial’s clinical notes. It has not been established that they were generated in the usual course of his medical practice, so they are not business records captured by s. 35 of the Evidence Act. They are, however, contemporaneous notes of comments made to the doctor by the children during the exercise of his professional duties as their family physician. The circumstances in which the statements were made and were recorded satisfy the requirement of threshold reliability.
[61] Pursuant to the principled exception to the hearsay rule, the letters are admissible as evidence of the fact that certain statements were made to Dr. Gobrial by the children. The admission of the letters for that purpose is reasonably necessary because, if called as a witness, Dr. Gobrial would not likely be able to provide any additional information about the children’s statements beyond that which he recorded in his letters more than seven years ago.
[62] The more difficult question is whether the letters are admissible for the truth of the statements made by the children. The admission of the doctor’s letters for this purpose constitutes double hearsay. The “broken telephone” risk associated with double hearsay – namely that the accuracy of the statements may have been lost through the imposition of an intermediary – is reduced because the doctor made contemporaneous notes of the children’s statements. It is those contemporaneous notes, and not the doctor’s inherently fallible recall of the statements, that the mother sought to introduce as evidence. For that reason, the letters satisfy the threshold requirement of reliability.
[63] The reasonable necessity of admitting the letters for the truth of the disclosures made by the children rests on the fact that it would not be in the children’s best interest to require them testify about the statements at trial. The risk of emotional harm to them is too high.
[64] The evidence is potentially prejudicial to the father, but its prejudicial impact is outweighed by the benefit of receiving it. Dr. Gobrial’s letters are therefore admissible for the truth of the children’s statements documented by him. This in no way precludes the father from challenging either the accuracy or the truth of the children’s statements recorded in the letters.
[65] I note that Dr. Gobrial’s typed letter dated January 24, 2014 includes observations of the children made by other parties who relayed their observations to Dr. Gobrial. It also includes opinions expressed by Dr. Gobrial about the impact of the parties’ conflict on V.K.’s emotional and psychological wellbeing, and about what parenting arrangement would be in V.K.’s best interests. Those portions of the letter are not admissible for any purpose.
EMS Ambulance Report
[66] The mother produced a copy of an EMS Ambulance Report from the day that she was transported to NYG Hospital in September 2011. It contains the contemporaneous personal observations of the paramedic who prepared the report and records events that transpired in the parties’ home that day, as well as statements made by the parties on that occasion. It was prepared during the ordinary course of the paramedic’s duties and in accordance with their employment obligations.
[67] The mother sought to rely on the EMS document primarily as evidence that certain statements were made by the father to the paramedic on the date in question. The document is admissible for that purpose under s. 35 of the Evidence Act. It is not admissible for the truth of the father’s statements to the paramedics.
Police Occurrence Reports
[68] The mother produced several police occurrence reports. They are all contemporaneous records generated in the ordinary course of the officers’ professional duties and in accordance with their obligations of employment. They contain the direct personal observations of the officers who prepared them. Pursuant to s. 35 of the Evidence Act, they are admissible evidence of the events recorded and of the fact that certain statements were made by the parties. They are not admissible for the truth of the parties’ statements to the police.
CAS Records
[69] Both parties produced voluminous Peel CAS records, consisting of hundreds of pages dating from 2012 to 2021. They sought to rely on these records for acts and occurrences that are documented in them, and for the fact that statements were made to CAS workers by the children, by the parties, and by others at particular points in time. Both parties also sought to rely on the CAS records for the truth of the statements documented in them.
[70] Almost two dozen people contributed to the creation of the CAS records over the years. Charles Thomas, the CAS worker who most recently had carriage of the family’s file, was called by the mother as a witness to testify at trial. However, he could not speak to the content of the reports that he did not write.
[71] All the CAS reports were prepared by employees in the ordinary course of their duties. Most were written contemporaneously with or very shortly after the occurrences and statements recorded. Reports that were not generated contemporaneously are not admissible. Pursuant to s. 35 of the Evidence Act, the contemporaneous CAS reports are admissible for the acts, occurrences and events recorded based on the personal observations of the authors. They are admissible for the workers’ observations of the children but not for the validity of any opinions expressed by the workers about the children (such as their ability to distinguish between truth and a lie, their credibility, etc.). They are not admissible for the validity of any opinions expressed about future risk to the children.
[72] Relevant statements made by the parties and recorded in the contemporaneous CAS reports are admissible for the fact that the statements were made. The parties’ statements to the CAS workers are also admissible for their truth if they fall within the “statement against interest” exception to the hearsay rule: DeGiorgio v. DeGiorgio, 2020 ONSC 1674, at para. 55.
[73] The contemporaneous CAS reports contain statements made to CAS workers by police officers, doctors, teachers and shelter workers. The reports are admissible, as business records, for the fact that these third-party statements were made. They are also admissible for the truth of these third party statements because the individuals in question were providing information under a legal duty to report their concerns about the children’s safety to the CAS pursuant to s. 125(6) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14: DeGiorgio, at para. 60; Setak, at para. 63.
[74] The father sought to rely on a CAS report that records information given to an intake worker by an anonymous individual who identified themself as the parties’ neighbour in Brampton. That report is admissible under s. 35 of the Evidence Act for the fact that the statements were made, but it is not admissible for the truth of the statements made by the neighbour because it constitutes unreliable double hearsay. The neighbour was not acting pursuant to a duty to report.
[75] Finally, under s. 35 of the Evidence Act, the contemporaneous CAS reports are admissible as evidence of the fact that certain statements were made by the children, provided that the statements in question were made directly to the CAS worker who recorded them. These statements by the children are also admissible for their truth because they fall within the principled exception to the hearsay rule. The reliability of the evidence of the children’s statements is established by the circumstances in which the contemporaneous CAS reports were generated. The necessity of admitting the statements is established by the need to avoid calling the children as witnesses at trial.
V.K.’s Email Messages to CAS
[76] The CAS file contains a series of email messages from February through April 2019 addressed to Mr. Thomas and to another worker named Helaina Arhontakis. The name of the sender is Himani Gupta. The first message contains the subject line, “V.K. – please help”. The messages are all signed “V.K.”. The first message ends with the explanation, “[t]his is a (sic) account I created to write this email without my dad finding out.”
[77] The messages contain allegations of physical and psychological abuse by the father, as well as allegations of parental alienation of the mother. The mother seeks to rely on the messages for the truth of their contents.
[78] The father argues that the email messages are fake. He is convinced that the mother authored them and sent them under V.K.’s name. He points to the email address, which is not V.K.’s. He argues that the language used, specifically the word “manipulate” and the expression “ring leader” (to refer to Dr. Goldstein), are evidence that the mother crafted the messages. M.M. denied writing them.
[79] The evidence does not support the father’s theory that the email messages were drafted by M.M. The language used in them is inconsistent with M.M.’s command of the English language. I heard her testify for many days and I do not believe that she is capable of crafting the disputed messages. M.M. is able to express herself well in English, but during her testimony, she exhibited ingrained speech patterns, such as using “ed” for the past tense of every verb. She consistently said things like, “he hitted”, “it breaked”, and “I hurted”. The emails in question do not contain these grammatical idiosyncrasies. Furthermore, the CAS file contains emails that were drafted and sent by M.M. and the contrast in the writing style is apparent. Moreover, there is no evidence that the colloquialism “ring leader” is part of M.M.’s vernacular. During her cross-examination, M.M. stated (credibly) that she did not know what the expression meant. Furthermore, V.K. used the word “manipulate” during several interviews with CAS workers, so it was clearly part of her vocabulary.
[80] Charles Thomas testified that he met with V.K. in person and she confirmed that she authored the email messages and sent them under the pseudonym Hamani Gupta. Mr. Thomas also stated that the content of the messages was the same information that V.K. relayed to him directly when they met in person. Based on his evidence, I find that the emails are authentic, were drafted by V.K. and were sent to the CAS as a request for help by V.K.
[81] The email messages are unedited. They are reproduced in full in the CAS file. They were preserved by the CAS workers in accordance with their employment obligations. In these circumstances, they satisfy the threshold reliability required for admissibility. They also satisfy the necessity requirement because of the need to avoid calling V.K. as a witness. Any potential prejudice to the father of admitting the email messages without an opportunity to cross-examine on them is outweighed by the benefit of the court receiving the evidence. The messages are therefore admissible for the truth of their content under the principled exception to the hearsay rule.
Barry Brown’s Letter
[82] Barry Brown is a social worker whose agency, Optimal Family Services Inc., was approved by the Court to provide supervision of the father’s interactions with the children during parenting visits that occurred in May 2013. Mr. Brown prepared a letter for the parties’ counsel dated June 6, 2013. It contains his personal observations of the children and the parties, as well as a summary of observations made by a visitation supervisor named Jill Brianski. Ms. Brianski reported her observations to Mr. Brown in accordance with her employment duties at Optimal Family Services.
[83] The letter from Mr. Brown does not satisfy the criteria for admissibility of business records under s. 35 of the Evidence Act. It is, however, admissible for certain purposes pursuant to the principled exception to the hearsay rule. It was generated based on Mr. Brown’s and Ms. Brianski’s direct personal observations of the parties and the children, in circumstances that were approved by the court. They were neutral observers who generated a report as part of their obligation to the parties. The report was prepared shortly after the supervised visits took place. In these circumstances, the report satisfies the threshold reliability criterion.
[84] The letter also satisfies the necessity criterion because Mr. Brown or Ms. Brianski, if called to testify at trial, likely would not be able to provide additional evidence beyond what was documented in the letter almost eight years ago. The letter is therefore admissible for the narrative of what transpired with the children (e.g., that they had supervised visits with their father on specific dates), as well as for the fact that certain acts, events and statements were observed and heard by the supervisors during those visits.
[85] Mr. Brown’s letter also contains his opinion about the inappropriateness of comments made by K.K. to J.K. during one of the supervised visits, as well as recommendations from Mr. Brown regarding counseling for the children and the father. Those portions of his letter are not admissible and have not been relied upon.
APCO Supervision Notes
[86] The mother produced a voluminous binder of observation notes made by employees at Access for Parents and Children in Ontario (APCO), a supervised access centre in Toronto. The notes record the supervisors’ observations of the mother and of the children during weekly supervised parenting visits from April 2016 to September 2016, as well as interactions with the father after each visit.
[87] The APCO notes constitute business records and satisfy the criteria set out in s. 35 of the Evidence Act and Setak. They were produced in the usual course of the employee’s duties, were made contemporaneous to the acts, occurrences and statements recorded, and contain the personal and direct observations of the authors. They are therefore admissible for the acts, occurrences and statements recorded. The notes are admissible for the fact that the parties made certain statements, but not for the truth of any of the parties’ statements, unless they fall within the “statement against interest” exception to the hearsay rule: DeGiorgio, at para. 55.
[88] The APCO notes also contain written records of statements made by the children during their supervised parenting time with the mother. Those portions of the notes are not only admissible for the fact that the statements were made (pursuant to s. 35 of the Evidence Act), but also for the truth of the statements (pursuant to the principled exception to hearsay). The threshold reliability of the evidence has been established. The necessity of relying on the reports for the truth of the children’s statements arises from the need to shield the children from the litigation and avoid calling them to testify. The benefit of receiving the evidence outweighs any potential prejudice.
Rejected Hearsay Evidence
[89] The mother sought to introduce a variety of letters and affidavits authored by individuals who were not on her witness list, including friends, family members, and social workers. The affidavits in question were prepared in connection with pre-trial motions and sworn in support of M.M.’s position.
[90] These hearsay documents are not business records, do not fall within any of the traditional categories of exceptions to the hearsay rule, and do not satisfy the twin criteria of reliability and necessity to fall within the principled exception to the rule. Although the statements contained in sworn affidavits have some indicia of reliability because they were made under oath, the circumstances in which the statements were made gives rise to questions about their reliability, namely whether the witnesses are biased in favour of the mother. Moreover, the documents were not prepared contemporaneously to the events that the authors describe.
[91] No explanation was provided by the mother for why the authors could not have been called as witnesses during the trial. Without producing the witnesses for cross-examination, the prejudice to the father of admitting the documents for their truth was substantial. The mother was therefore not permitted to tender these documents as evidence. Some of them were marked as lettered exhibits for identification purposes only because the parties were questioned about statements contained in them.
Transcript of 911 Call Made by V.K.
[92] The mother produced a transcript of a 911 call from October 2012, without the actual audio recording of the call. In the transcript, the caller identifies herself as a girl, gives her first name as V. and provides the father’s address as the address from which she is calling. The father acknowledged that the call was made by V.K. but claims that the mother put her up to it. Neither parent was home at the time of the call.
[93] The audio recording of the 911 call constitutes a business record that would be admissible pursuant to s. 35 of the Evidence Act for the fact that the call was made and that the recorded statements were made by V.K. There is no suggestion that the transcript of the call is inauthentic or incomplete. In the circumstances, the transcript is admissible for the same purposes as the audio recording would have been admissible.
[94] The transcript is also admissible for the truth of the statements made by V.K. and as evidence of her state of mind at the time, based on the principled exception to the hearsay rule. The reliability of the evidence is high. It is an official transcript of a contemporaneous recording made by a government agency that has a duty to record such calls in the public interest. The necessity of receiving the evidence for a hearsay purpose is satisfied by the fact that it would be contrary to V.K.’s best interests to have her testify.
Video Recordings of Exchanges
[95] The father adduced as evidence two video-recordings of J.K. taken during and after aborted exchanges of the children in January 2020. At that time, the court had ordered weekend access for the mother, but the visits were not taking place. The father advised the court that he was encouraging the children, but they were refusing to go with their mother. A motion judge made the unusual order that the attempts to transition the children into the mother’s care be video recorded.
[96] The first recording is taken inside a subway station where the exchange was to take place. Both parties and both children are depicted at various points in the video. The video captures J.K.’s resistance to go with his mother. The video has high probative value.
[97] Neither parent challenged the authenticity of the recording. It was not done surreptitiously. Both parties were aware and the children were also aware that the recording was being made by the father’s friend, pursuant to the court order. In the circumstances, the recording is admissible for the acts, gestures, occurrences and statements that are captured by the recording, and as evidence of J.K.’s state of mind.
[98] The second recording was made inside the father’s vehicle after the aborted exchange at the subway station. It shows J.K. in the back seat of the vehicle talking about his feelings towards his mother and about why he does not want to go to her residence. The child is responding to questions from the father during the recording.
[99] The father sought to rely on the second video for the statements made by J.K. and as evidence of his state of mind. I admitted it with the mother’s consent, but I have concerns about the fact that the child’s remarks are being prompted by questions from the father. The recording may not reflect J.K.’s authentic feelings. He may have been encouraged to make certain statements on camera or may have felt compelled to make statements demonstrating loyalty to his father given the circumstances. The risk of contrivance causes me to give the second video much less weight.
Video Recording of J.K.
[100] The mother sought to introduce as evidence a video recording of J.K. and one of his friends playing drums in the basement of the father’s home. The video shows J.K. screaming into the camera, using profanities, and making sexist statements. The mother tendered the video to show the negative influence of the father as a role model for J.K. and the absence of appropriate adult supervision while J.K. is in his father’s care. The video is not probative of either of those things.
[101] The reliability of the video was not established by the mother. It appears to have been a “selfie” video taken by J.K. It is unclear how it ended up in the mother’s possession. It is unclear whether the video was edited. The purpose for which the video was taken is unknown. The circumstances under which it was taken are also unknown. The children could have been acting out for any number of reasons.
[102] I ruled that this video recording of J.K. and his friend was inadmissible based on its unreliability and lack of probative value.
Surreptitious Audio Recording (and Transcripts) of the Father
[103] The mother adduced an audio recording and several transcripts of audio recordings of the father speaking with his nanny and with the children. Most of the conversation is in English, but some Tamil words are used. The transcripts are attached to an affidavit of translation sworn by a translator who deposed that she transcribed the recordings to the best of her ability and faithfully translated any Tamil words to English.
[104] V.K. used her iPad to make the recordings in the father’s home and in his car, without his knowledge or consent. They were made in December 2018, at a pivotal point in the mother’s relationship with the children. It was then that J.K. began to seriously resist attending for visits with his mother and V.K. chose to stay with her brother at her father’s residence. For the next 10 months, the mother had virtually no contact with the children despite court-ordered parenting time.
[105] In the audio recording, the father shouts at J.K., insults him and his mother, and tells him the mother does not want to look after him and V.K. In the transcripts of the other recordings, the father coaches the children on what to say and do during access exchanges to avoid going to their mother’s residence. The nanny is also recorded encouraging the children not to go to their mother’s home. The mother sought to rely on the audio recording and on the transcripts for the fact that certain statements were made by the father and the children, and as evidence of the father’s verbal abuse of the children.
[106] The recordings are relevant to the issue of what is in the children’s best interests because they may provide accurate evidence of the father’s interactions with the children during the specific times of the recordings: Tillger v. Tillger, 2019 ONSC 1463, at para. 61. I recognize that the recordings do not capture all the interactions between the father and the children around that time. They may not be typical. The recorded moments were selectively chosen by V.K. with the intention of revealing her father’s abusive language and conduct, as well as his efforts to influence the children not to go to their mother’s home. On the other hand, the recordings were made over several days and in at least two different locations, so they do not represent an isolated incident.
[107] Surreptitiously obtained electronic recordings are often excluded by trial judges based on policy reasons that strongly discourage their use in family litigation: DeGiorgio, at paras. 10 to 13. Such recordings undermine the core purposes of family law, including reduction of conflict in order to promote the children’s best interests and the maintenance of healthy family relationships. Admitting such evidence condones deceit and encourages behaviour that results in distrust, making rational and reasonable resolution of parenting issues more difficult. Consequently, judges typically exercise their discretion to exclude surreptitious recordings, even if otherwise admissible, unless there are compelling reasons to admit them as evidence: Tillger, at paras. 62-68.
[108] In this case, the recordings have extremely high probative value. They speak to why the court-ordered access schedule was not being respected. They constitute evidence of active parental alienation by the father at a pivotal point in J.K.’s relationship with his mother.
[109] The father objected to the admissibility of the actual audio recording, stating that someone must have tampered with the volume of the recording to amplify his voice. He did not challenge the accuracy of the transcripts, including the translation of the Tamil words used, but he objected to their admissibility on the basis that they constituted a violation of his privacy. When questioned about the content of the transcripts, he admitted that he made the statements attributed to him and said the transcripts reflected everyday conversations in his home.
[110] I excluded the actual audio recording because the maker of the recording, V.K., would not be called as a witness to address the father’s concern about possible amplification of the sound. There was no way for the court to verify the recording’s accuracy with respect to the volume of his voice.
[111] I admitted the affidavit with the transcripts, despite the recordings having been surreptitiously obtained, because there was no challenge to the reliability of the evidence and its high probative value outweighs its prejudicial effects. I note that this is an unusual case in which surreptitiously obtained evidence was gathered by one of the children, rather than by one of the parents. If there were evidence to support the father’s contention that the mother requested or coached V.K. to make the recordings, I would have excluded the transcripts on public policy grounds. It would be extremely inappropriate for a parent to manipulate a child in that manner in order to obtain evidence for use in a family law proceeding.
[112] In this case, however, the evidence establishes that V.K. made the recordings on her own initiative and uploaded them to her mother’s computer during a home visit. V.K. transferred the audio files without the mother even knowing that she had done so. This was clearly a cry for help by V.K. She wanted the mother to know what was happening inside the father’s home and vehicle. In the circumstances, the policy reasons for excluding such evidence are less compelling.
Dr. Goldstein’s Reports & CPSO Materials Relating to Dr. Goldstein
[113] The father intended to call Dr. Goldstein as a witness to testify about the assessment he was appointed to conduct pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C12. On the first day of trial, the father advised that he sent a summons to Dr. Goldstein to attend, but the doctor did not show up. He did not request that the court compel the doctor to attend and testify. He nevertheless asked the court to admit Dr. Goldstein’s s. 30 reports and letters into evidence and to give weight to the opinions and recommendations contained in them.
[114] The mother objected to the admissibility of Dr. Goldstein’s reports and letters and to any testimony by Dr. Goldstein. Her objection was based on findings of the CPSO arising from complaints that she filed against him. She adduced a copy of a decision of the Inquiries, Complaints and Reports (ICR) Committee of the CPSO dated April 16, 2018, pertaining to one of her complaints. The decision establishes that the ICR Committee had serious concerns about Dr. Goldstein’s approach to the s. 30 assessment in this case, including unsubstantiated conclusions and lack of skill and judgment.
[115] In its decision, the ICR Committee noted that the mother’s complaint was one of several complaints about Dr. Goldstein. The panel acknowledged that the adversarial nature of the clinical subspecialty in which Dr. Goldstein practices placed him at higher risk for complaints, but noted that the complaints shared similar themes, including: (1) lack of objectivity in approaches to parenting/custodial assessments, (2) invoking of parental alienation to the exclusion of alternate hypotheses (most notably trauma or abuse in the marital or parental relationship), (3) report-writing that is idiosyncratic, impressionistic and without substantiation of some aspects of the synthesis of information in high stakes situations with interpretive complexity, and (4) lack of caution/humility in making conclusions that are admittedly challenging to prove.
[116] The ICR Committee concluded that Dr. Goldstein would benefit from remediation. It ordered him to complete a specified education program, engage in self-directed learning, be subject to clinical supervision, and then be reassessed after one year by an independent assessor to determine whether he has incorporated the corrective changes that the Committee deemed necessary into his practice.
[117] The mother also adduced copies of documents that were before the ICR Committee when it considered her complaint against Dr. Goldstein, including the written report of an Independent Opinion Provider (IOP) who was retained by the College to opine on whether Dr. Goldstein’s assessment in this case fell below the standard of practice for the medical profession.
[118] Finally, the mother also adduced a print-out of the CPSO’s on-line Public Register regarding Dr. Goldstein’s member status. It confirms that, effective April 2019, Dr. Goldstein gave undertakings to the Discipline Committee of the CPSO, including (i) not to conduct any new assessments of individuals who he believes have been subject to or have engaged in parental alienation, (ii) to terminate any ongoing physician-patient relationships in which parental alienation is at issue, and (iii) not to provide written or oral opinion evidence about parental alienation to any third party, except as required by law, in which case he will advise the relevant parties, in advance of giving evidence, to consult the CPSO’s Public Register.
[119] The father objected to the admissibility of all the CPSO documents. After hearing submissions from the parties (including written submissions contained in an affidavit sworn by the father on August 1, 2018 and prepared with the assistance of his former counsel), I ruled that the ICR Committee’s decision and the print-out of Dr. Goldstein’s member status report on the CPSO Public Register are admissible. I excluded the other materials that were before the ICR Committee. I advised the parties that I would provide written reasons for my ruling, which are as follows.
Interpretation of the Regulated Health Professions Act
[120] K.K. objects to the admissibility of the CPSO documents based on s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (RHPA), which states:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[121] K.K. argues that the purpose of s. 36(3) of the RHPA is to keep civil proceedings separate from college proceedings, so the documents relating to the CPSO proceedings against Dr. Goldstein cannot be used as evidence in this proceeding. He further submits that he would be prejudiced if the CPSO documents were admitted as evidence because he was not a party to the proceedings against Dr. Goldstein before the CPSO and had no opportunity to challenge the evidence that was called in that proceeding.
[122] M.M. argues that s. 36(3) of the RHPA does not apply in this case because she is not seeking to use the disputed evidence to obtain any orders against Dr. Goldstein. She submits that the CPSO materials are relevant to the best interests of the children, which is the paramount consideration in this case. She further submits that, if the CPSO materials are excluded pursuant to the RHPA, the court will not have a full narrative of the events that led to the children’s current situation, including the mistakes that were made in terms of decisions for these children, which impacted them and will continue to affect their emotional development and wellbeing.
[123] There is no dispute that the CPSO proceedings involving Dr. Goldstein were proceedings conducted pursuant to a health profession Act, which is a precondition for the application of s. 36(3) of the RHPA.
[124] The father argues that s. 36(3) applies in this proceeding and constitutes an absolute statutory bar to the admissibility of all the CPSO materials. In my view, the admissibility of each of the disputed CPSO materials needs to be addressed separately.
[125] Let me begin by noting that s. 36(3) of the RHPA does not preclude the admissibility in this proceeding of evidence pertaining to the fact that M.M. made two complaints about Dr. Goldstein to the CPSO. As the Court of Appeal for Ontario has ruled, the reference in s. 36(3) of the RHPA to a "report, document or thing" draws a distinction between a written complaint to a college and the fact that a complaint was made: F. (M.) v. Dr. Sutherland (2000), 2000 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal refused, 2001 CarswellOnt 1081 (S.C.C.); Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, at para. 25.
[126] Moreover, not all reports, documents or “things” related to proceedings before a professional regulator are captured by the prohibition set out in s. 36(3) of the RHPA. The prohibition only applies to (i) records of such proceedings, (ii) documents “prepared for” or (iii) statements “given at” such proceedings, and (iv) orders and (v) decisions made in such proceedings. The excerpt from the CPSO’s on-line Public Register regarding Dr. Goldstein’s member status does not fall within any of these five categories.
[127] In Conroy v. CPSO, 2011 ONSC 324, aff’d 2011 ONCA 517, leave to appeal ref’d 2012 698 (SCC), this court considered the application of s. 36(3) of the RHPA in a motion to strike a Statement of Claim. The claim was made by a medical doctor who sued the CPSO for damages arising from his referral to the Fitness to Practice Committee (FTPC) at the College and the publication of his referral on the College’s Public Register. The motion to strike was successful. The Court found that the claim had no chance of success because most of the evidence required to establish the facts pleaded by the plaintiff was inadmissible under s. 36(3) of the RHPA. However, the Court held, at para. 56, that the referral of the doctor to the FTPC and the posting of this referral on the College website escaped the prohibition in s. 36(3) because they were made after the doctor’s certificate of registration was suspended and the College no longer had jurisdiction over him.
[128] In this case, although the CPSO still had jurisdiction over Dr. Goldstein when it published his undertakings on its website, that publication occurred after the CPSO proceedings against him were concluded. The website information refers to undertakings given by Dr. Goldstein. It does not constitute an order or decision of the CPSO. The information on the Public Register is therefore not captured by s. 36(3).
[129] I conclude that Dr. Goldstein’s membership status information is admissible in this proceeding. It is relevant to the issues before me, particularly the issue of the admissibility of Dr. Goldstein’s opinions and recommendations and to any weight to be given to them. It is not prejudicial to the father.
[130] The other CPSO documents adduced by M.M. – namely the decision of the ICR Committee in the matter of her complaint against Dr. Goldstein and the report of the IOP who was retained by the College – fall within the five categories of evidence that are deemed inadmissible “in a civil proceeding” pursuant to s. 36(3) of the RHPA. However, in order to determine whether these documents are inadmissible by virtue of the operation of s. 36(3) of the RHPA, I must first determine whether the proceeding before me constitutes “a civil proceeding” within the meaning of s. 36(3).
[131] The interpretation and scope of application of s. 36(3) have been considered by the Court of Appeal for Ontario in numerous cases involving civil actions against professional regulators and between patients and health care professionals. In those contexts, the Court of Appeal has consistently refused to read into s. 36(3) an implied exception for cases involving fraud or bad faith: Sutherland, at paras. 26-34; Task Specific Rehabilitation Inc. v. Steinecke (2004), 2004 4853 (ON CA), 244 D.L.R. (4th) 414 (Ont. C.A.); Lipsitz v. Ontario, 2011 ONCA 466, 281 O.A.C. 67 (Ont. C.A.); and Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461. This court has followed the appellate authority in several cases: Svec v. College of Psychologists of Ontario, [2010] O.J. No. 4804 (Ont. S.C.); Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248, [2010] O.J. No. 4017 (Ont. S.C.). In these civil actions, s. 36(3) has consistently been interpreted as “a blanket prohibition against the admissibility of all evidence collected during the course of” a professional regulator’s investigation and has been described as an “absolute” prohibition: Conroy, at para. 55.
[132] The Court of Appeal has not, however, interpreted s. 36(3) of the RHPA or considered the scope of its application in family law proceedings. Neither party provided me with any jurisprudence that deals with this issue in a family law context. The issue was raised before Kitely J. in McCain v. Melanson, 2016 ONSC 6350, in the context of an applicant’s motion to disqualify a lawyer from continuing to act as counsel for the respondent in an annulment proceeding, but she found (at para. 58) that it was unnecessary to decide the issue.
[133] The only other family law case that I was able to identify is Veneris v. Koh Veneris, 2018 ONSC 4164, in which Akbarali J. dealt with an application to introduce fresh evidence on an appeal of an arbitrator’s decision. The fresh evidence included a psychologist’s report prepared for the College of Registered Psychotherapists of Ontario in a discipline proceeding arising from a complaint by one of the family law litigants against an expert witness in the case. Akbarali J. provided six reasons for not admitting the report, including the “statutory prohibition on accepting a report prepared for an RHPA proceeding into a civil proceeding” (para. 19). The totality of her analysis of the issue consisted of the following: “The appellant argues that I can ignore this statutory prohibition based on the best interests of the child. There is no such discretion in the statute. I disagree that I can disregard the prohibition that the legislature has set out.”
[134] I am not bound by the decision of this Court in Veneris. I note that Akbarali J. did not consider or specifically address the issue of whether the legislature intended to refer to a family law proceeding involving parenting issues when it used the phrase “civil proceeding” in s. 36(3) of the RHPA.
[135] I must interpret s. 36(3) by reading the words of the statute in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo v. Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, at para. 26. My interpretation must also be guided by the statutory rules that govern the interpretation of statutes: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 117. Those rules emphasize the need to construe a statute in a way that best attains its objects: Interpretation Act, R.S.O. 1990, c. I.11, s. 10; Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1).
[136] A contextual approach to interpreting the application of s. 36(3) in this proceeding entails consideration of the unique concerns at stake in family law litigation, particularly parenting disputes that must be decided in accordance with the best interests of children. There are significant differences between the interests at play in traditional civil proceedings and those at play in family law proceedings. For example, civil actions typically involve strangers or individuals who are at least in an arm’s length relationship and whose relationship will end conclusively when the litigation is over, whereas family disputes concern people in intimate relationships, people whose relationships - especially when they have children – continue long after the litigation is concluded.
[137] A civil action usually involves a discrete past event. Resolution of the issues, whether they pertain to liability or damages, tends to revolve around concrete facts that are susceptible to conclusive measurement or other empirical analysis and quantification, such as the conditions of a road, the placement of a fence, or the loss of income. A family trial, in contrast, typically examines a sequence of events that began in the past but that continue up to the date the trial commences. In some family law proceedings, as in the case before me, the judge may take into account events that transpire during the trial. Liability is not an issue; family law legislation long ago dispensed with any notions of “fault”. The resolution of parenting issues in a family law trial requires an assessment of children’s best interests, which necessitates consideration of intangible matters that are not amenable to empirical measurement (e.g. the nature and strength of a child’s relationship with each parent, the parties’ capacities to make child-focused decisions and to meet a child’s needs, the parties’ willingness to support the other parent’s relationship with the child, and the parties’ abilities to nurture the child’s linguistic, religious and cultural heritage).
[138] Furthermore, once liability is established in a civil action, most of the remedies available in civil proceedings (apart from specific performance and injunctive relief) consist of monetary compensation for damages. In family law proceedings involving parenting issues, there is no restitution awarded for past events. Rather, the court seeks to craft orders that will promote the child’s best interests in the present and for the foreseeable future.
[139] These are but a few examples of the important differences between traditional civil proceedings and family law proceedings. These differences are the rationale for the development of unique Family Law Rules, distinct from the Rules of Civil Procedure. As this court noted in Children’s Aid Society of London and Middlesex v. R.T., 2014 ONSC 4788,
[25]… legislatures expressly and implicitly have recognized and indicated to courts, through the enactment of separate and different rules of procedure applicable to family disputes and child protection proceedings, (such as Ontario’s Family Law Rules), and uniquely applicable statutory timeline provisions, (such as those found in s. 70 of Ontario’s Child and Family Services Act, R.S.O. 1990, c. C.11), that significantly different interests are at stake in relation to such matters, and that significantly different approaches may be appropriate.
[27] … as the special legislation applicable to such disputes suggests, there may well be important, additional and quite different considerations to weigh in the balance; i.e., when it comes to determining whether the appropriate process for resolving such disputes should differ in material ways from that applied to traditional civil litigation.
[140] Similarly, in C.M.M. v. D.G.C., 2015 ONSC 2447, at para. 16, this court stated:
…The rationale for having separate rules governing family law proceedings is that there is a distinct difference between the issues raised in family law matters and those raised in general civil proceedings. Not only are the issues to be addressed fundamentally dissimilar, so is the approach that is taken to the resolution of those issues.
[141] In Frick v. Frick, 2016 ONCA 799, at para. 11, the Court of Appeal for Ontario stated,
The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
[142] In C.M.M. v. D.G.C., 2015 ONSC 39, at para. 65, this court reviewed the evolution of the Family Law Rules, including the recommendations of the Ontario Law Reform Commission’s Report on Family Law in the 1970’s, which recommended that procedures in family cases “be as simple and inexpensive as possible and that delays be minimized” because family law litigants typically do not have large resources.
[143] In determining whether the prohibition in s. 36(3) of the RHPA applies to the CPSO materials relating to Dr. Goldstein in this case, the court must interpret the legislation within the distinct contextual framework of family law parenting disputes, where the children’s best interests are the paramount consideration. Interpreting the phrase “a civil proceeding” in s. 36(3) to include the proceeding before me would result in an absurd outcome that cannot have been intended by the legislature. As Laforest J. stated in Re Estabrooks Pontiac Buick Ltd., [1982] N.B.R. (2d) 201 (NBCA) (QL), at para. 21:
The fact that the words as interpreted would give an unreasonable result … is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity.
[144] If the CPSO decision against Dr. Goldstein were inadmissible, I would be required to consider the opinions and recommendations of Dr. Goldstein, as set out in his s. 30 assessment reports, without taking into account the fact that the ICR committee of the CPSO found that those very reports were prepared in a manner that does not meet professional standards of skill and judgment reasonably expected of a competent psychiatrist. This would place M.M. in the position of having to duplicate the CPSO proceeding by calling expert evidence (different from the evidence put before the ICR Committee) to prove the deficiencies in Dr. Goldstein’s report before me. It would lengthen the trial considerably and would substantially increase the costs incurred by both parties, all of which runs contrary to the general approach to family law litigation that seeks to promote accessibility and minimize litigation expenses so that the parties’ resources can be allocated to their children instead.
[145] Moreover, if the CPSO materials were inadmissible, and M.M. were unable to marshal the necessary evidence to challenge Dr. Goldstein’s reports before me, I would be left to determine the children’s best interests without reference to critical evidence about the validity of the opinions expressed by the court-appointed expert. In the specific circumstances of the case before me, where a motion judge relied on Dr. Goldstein’s opinions and recommendations in making an interim finding of parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of Dr. Goldstein’s opinions. The legislature cannot have intended such an absurd result when it enacted the statutory bar on the admissibility of decisions of professional regulators “in a civil proceeding”.
[146] The Court of Appeal for Ontario, in Sutherland, identified the primary purposes of s. 36(3) of the RHPA as follows:
[29] …to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings — a health professional, a patient, a complainant, a witness or a College employee — fearing that a document prepared for College proceedings can be used in a civil action.
[147] The reason why the Court of Appeal has consistently refused to read a fraud or bad faith exception into s. 36(3) in civil actions is because it would defeat this purpose: Sutherland, at para. 29. That reasoning does not apply in this case. Admitting the CPSO materials relating to the mother’s complaint against Dr. Goldstein would not in any way undermine the objectives of s. 36(3). It would not discourage complainants from reporting professional misconduct to regulators, nor would it impede the investigation, prosecution or defence of professional discipline proceedings by causing an individual involved in such proceedings to fear that a document prepared for the College proceeding could be used in a subsequent family law case. Dr. Goldstein is not a party in the proceeding before me. He has no exposure to liability in this case. M.M. is not seeking any orders against him.
[148] I conclude that s. 36(3) of the RHPA does not apply and does not render the disputed CPSO evidence inadmissible in this proceeding.
[149] The mere fact that the CPSO materials are not excluded by virtue of s. 36(3) does not render them admissible as evidence. The father argues that the materials should nevertheless be excluded because they are highly prejudicial. He was not a party to the proceeding before the CPSO and had no opportunity to challenge the IOP’s report.
[150] In my view, the IOP report is inadmissible for two reasons. First, it constitutes hearsay that does not fall within any exception to the hearsay exclusionary rule. Second, the IOP has not been qualified by this court as an expert to give opinion evidence.
[151] The ICR Committee’s decision, on the other hand, is admissible pursuant to the principled exception to the hearsay rule. I disagree that it is prejudicial to the father. It contains no evidence pertaining to his parenting ability. It discredits Dr. Goldstein’s reports, upon which the father wishes to rely, but Dr. Goldstein is not the father’s witness. Dr. Goldstein was appointed by the court, pursuant to s. 30 of the Children’s Law Reform Act, as an independent individual who “has technical and professional skill to assess and report to the court” on the needs of the children and the ability and willingness of the parties to satisfy those needs. Evidence of deficiencies in Dr. Goldstein’s professional skill is relevant to assist the court in its determination of the children’s best interests.
[152] With respect to Dr. Goldstein’s reports and letters, they are admissible in this proceeding pursuant to Rule 20.3(7) of the Family Law Rules. However, I made a ruling during the trial that they would only be admitted for the purpose of assisting me to understand the narrative of what transpired prior to trial. I advised the parties that no weight would be given to Dr. Goldstein’s opinions or recommendations because of the findings of the ICR Committee that the reports were conducted in a manner that falls below professional standards, and because of the undertakings that Dr. Goldstein has given to the CPSO.
[153] It is worth noting that, even if I had not admitted the IRC Committee’s decision, I would not have relied on the opinions and recommendations contained in Dr. Goldstein’s reports unless the father produced Dr. Goldstein for cross-examination at trial, which he was unable to do. The father did not ask me to compel Dr. Goldstein to attend, but had he done so, I would have denied the request based on the undertakings that Dr. Goldstein has given to the CPSO.
CPSO Materials Relating to the Father
[154] Two complaints were made to the CPSO about the father’s conduct in connection with this litigation.
[155] First, the mother’s former family doctor, Dr. Komathy, made a complaint alleging that K.K. forged her signature on two documents: (1) a requisition dated November 13, 2012 for disclosure of M.M.’s hospital records and (2) a letter dated November 16, 2012 on Dr. Komathy’s letterhead, setting out M.M.’s medical history and alleging that CAS involvement was required because M.M. assaulted the children. The requisition was signed by K.K. in an effort to obtain documents to be used as evidence in this proceeding. The November 16, 2012 letter was adduced by him as evidence when he commenced this proceeding.
[156] Second, M.M. complained to the CPSO that the father signed a patient authorization on her behalf, without her knowledge or consent, on the November 13, 2012 requisition for disclosure of her hospital records.
[157] The fact that these complaints were made has been proven in the trial. The fact that K.K.’s licence to practice medicine was suspended for two months by the CPSO as a result of M.M.’s complaint against him has also been proven. Both parties testified about these facts. Subsection 36(3) of the RHPA does not preclude the admissibility of their testimonies regarding these facts: Sutherland, at para. 45.
[158] M.M. also sought to adduce into evidence a copy of the CPSO Discipline Committee’s decision dated December 20, 2017 in the matter of her complaint against the father. She further sought to adduce as evidence a print-out from the CPSO’s Public Register regarding the K.K.’s Member Status information, which includes a summary of the Discipline Committee’s findings and orders. The relevance of these documents was not challenged, but the father objected to their admissibility based on s. 36(3) of the RHPA.
[159] I ruled, at the commencement of the trial, that the disputed CPSO documents were admissible in the circumstances of this case. I indicated that the reasons for my ruling would be provided later in writing. However, as the evidence at trial unfolded, it became apparent that it would not be necessary for me to rely on the CPSO materials in connection with M.M.’s complaint against K.K. in order to determine the issues in dispute. I have therefore disregarded the Discipline Committee’s decision and the information on the CPSO Public Register.
Judicial Interviews of the Children
[160] The mother requested that the court conduct judicial interviews of both children pursuant to s. 64(2) of the Children’s Law Reform Act. Her primary reasons for making the request were: (1) the children’s views and preferences needed to be taken into consideration, (2) circumstances had changed since the OCL’s Voice of the Child Report was prepared a year earlier, and (3) V.K. had made a specific request to “speak to the judge”.
[161] Both the Children’s Law Reform Act and the Divorce Act include provisions requiring trial judges to consider the views and preferences of children when making decisions about their parenting. Judicial interviews of children are one means of ascertaining a child’s views and preferences. Such interviews are within a trial judge’s discretion, but “should be limited and not seen as an opportunity to obtain vital information shielded from the knowledge of and challenge by the parties”: Hamilton v. Hamilton, 1989 CarswellSask 68 (Sask. C.A.), at para. 3, adopted in Ward v. Swan, 2009 CarswellOnt 2882 (Ont. S.C.), at para. 17. The potential prejudice to the litigants is substantial. There are alternate and preferable ways to gather reliable evidence of the children’s views. The OCL is often relied upon in Ontario courts for that purpose.
[162] In this case, a Voice of the Child Report was prepared by an OCL clinician based on interviews conducted with both J.K. and V.K. in November 2019, one year prior to the commencement of the trial. The clinician, Ms. MacKenzie, was a witness in the trial. Her report and her testimony constitute evidence of the children’s views and preferences at that particular point in time, which was approximately 10 months prior to V.K.’s decision to change residences and live with her mother.
[163] Ms. MacKenzie’s interviews of the children are not so outdated as to be irrelevant or useless to the court in ascertaining J.K.’s and V.K.’s current views and preferences. Her evidence must, however, be considered in conjunction with the undisputed fact that, subsequent to the OCL interviews, V.K. decided to live with her mother full time. V.K.’s decision, in that regard, is also evidence of her preference, as expressed through action.
[164] There is sufficient evidence before the court, without conducting judicial interviews, to enable me to ascertain the children’s current views and preferences. This is a high-conflict case in which the children have suffered greatly. It would not be in their best interest to interview them as part of the proceeding because it would place them at the centre of their parents’ conflict.
[165] Moreover, in cases like this, where both parties are making allegations of parental alienation, the court must be particularly attuned to the possibility that the children’s views may not be independently formed. The OCL clinician, who is trained and experienced at conducting child interviews, is in a better position to make that assessment than the court.
[166] Ultimately, the risk of harm to the children outweighs any potential benefit that might be gained from interviewing them. The mother’s request for judicial interviews was therefore denied.
V.K.’s Affidavit
[167] There was a three-month suspension of the trial after the first ten days of the hearing. During that hiatus, an incident occurred at the father’s residence, which resulted in V.K. calling the police. The mother then brought an emergency mid-trial motion for a change in the children’s primary residence and for sole custody to be vested in her temporarily until the conclusion of the trial.
[168] I agreed to hear the mother’s mid-trial motion on an urgent basis. The parties were directed to submit affidavits, which would also constitute evidence in the trial. They were advised that the motion for interim relief would proceed without cross-examinations, but that they could cross-examine on the affidavits when the trial resumed.
[169] Both parties submitted their own affidavit, as well as a supporting affidavit from one other witness. The mother tendered an affidavit sworn by V.K. In the affidavit, V.K. attested to the recent events that caused her to contact the police.
[170] I can appreciate the mother’s dilemma. She drove V.K. to the father’s home on the date in question but remained outside the residence. Since she was not present inside the house, she could not testify as to what happened. Any statements made to her by V.K. about the incident would constitute hearsay, inadmissible because of their prejudicial effect. The mother wished to place relevant evidence before the court and felt that her only option was to tender an affidavit from V.K.
[171] I did not permit V.K.’s affidavit to be used as evidence on the motion. Admitting her affidavit would have triggered the father’s right to cross-examine her at trial. The father would have been faced with an impossible choice of either allowing V.K.’s evidence to go unchallenged or subjecting V.K. to cross-examination, which would no doubt be an upsetting and potentially traumatic experience for her.
[172] In addition to the prejudice to the father, which militated against admitting the affidavit as evidence, I concluded that it would not be in V.K.’s best interest to be directly involved in the litigation. Although she is 16 years old, even mature minors need to be shielded from their parents’ conflict, not dragged directly into the battlefield of adversarial litigation.
Credibility Findings
[173] During their testimonies at trial, Mr. Thomas (the CAS worker) and Ms. MacKenzie (the OCL clinician) appeared to recount their observations to the best of their recollection, without embellishment or material omission. Their evidence is supported by contemporaneous records. Neither party seriously challenged the credibility of these two witnesses, and I have no reason to question it.
[174] The credibility of the parties, on the other hand, was a key issue in the trial, central to most of the necessary factual findings. The mother accuses the father of committing repeated acts of physical and psychological violence toward her throughout the marriage. She alleges that the children were exposed to many incidents of family violence. She also accuses the father of psychologically abusing both children and of physically striking V.K. She further claims that he actively manipulates and influences J.K. in a deliberate effort to undermine her relationship with J.K.
[175] The father denies all these allegations and submits that they constitute a false narrative designed to alienate the children from him. He accuses the mother of coaching V.K. to make false CAS and police complaints against him and to fabricate allegations of abuse.
[176] I am not required to choose between the parties’ competing narratives, nor am I required to believe or disbelieve either of their testimonies in its entirety. It is a trite principle of law that I may accept all, part or none of any witness’s evidence, and may attach different weight to different parts of a witness’s evidence. However, in this case, I have concluded that the father is utterly lacking in credibility. I have therefore rejected virtually all his evidence whenever it conflicts with the mother’s evidence.
[177] There are multiple reasons why I found the father to be not credible. He lacked candour and intentionally concealed relevant facts from the court. He exhibited a selective memory during his cross-examination. He became evasive when confronted with difficult questions; he equivocated and prevaricated to avoid answering them. When he took the stand at the end of the trial to give reply evidence, he was combative throughout much of his cross-examination, refusing to answer several questions and arguing with opposing counsel instead.
[178] On multiple issues, the father made prior inconsistent statements for which he offered no reasonable explanation. There were internal contradictions in his testimony and his evidence shifted in a self-serving manner when these inconsistencies were pointed out to him. Furthermore, some of his testimony was contradicted by reliable contemporaneous documentary evidence. Finally, portions of his testimony appeared disingenuous because his statements were so implausible as to strain credulity.
[179] Specific examples of the above deficiencies in the father’s credibility are woven throughout my reasons below. There are many more examples that are not included in this Judgment.
[180] In contrast, the mother testified in a candid and forthright manner. She readily made significant admissions against interest. She would not, however, allow for even the possibility that her daughter V.K. had made untruthful or exaggerated statements to third parties about the father’s alleged abuse. She resisted acknowledging inconsistencies in V.K.’s statements and blamed them on the inaccuracy of the third parties who recorded them. Her entrenched unwillingness to question the veracity or accuracy of V.K.’s statements is understandable given her own personal history of being disbelieved when she was being truthful about the abuse that she endured. I therefore do not consider her inflexibility on this issue to be a major deficiency in her overall credibility. It is noteworthy that this inflexibility did not extend to other aspects of her testimony. While she was at times adamant about her answers during her cross-examination, she was neither uncooperative nor reticent.
[181] The mother had a marked tendency to meander during her testimony. Her answers often went on at length, deviating from the original point she was making, or they were prefaced by long introductions before getting to her point. She did this both during her examination-in-chief and during her cross-examination and had to be cautioned by me several times to be more concise in answering the questions asked. I attribute this meandering to an ingrained pattern of speech and to catharsis resulting from a longstanding desire to be heard on the topics about which she was testifying, rather than to any evasiveness on her part. Her answers were responsive, they were just unnecessarily long.
[182] The mother’s narrative was coherent. Although she was confused on some of the relevant dates and there were minor inconsistencies in her evidence, these deficiencies are more likely attributable to lapses in memory resulting from the passage of time than to deliberate dishonesty on her part. Overall, her testimony was internally consistent. It withstood skillful cross-examination by opposing counsel over several long days.
[183] The evidence given by the mother is in harmony with the preponderance of probabilities based on other credible evidence at trial, including the testimony of the OCL clinician and the CAS worker. Much of her testimony is also supported by the documentary record. Unlike the father, I found her to be a credible witness and a mostly reliable historian.
RELATIONSHIP HISTORY PRIOR TO SEPARATION
Engagement and Married Life in India (December 2002 to November 2007)
[184] Both parties grew up in India. They were not raised in the same village, but they have known each other since childhood because they are first cousins. K.K.’s parents died in a motor vehicle accident when he was five years old. He was raised by grandparents and the parties’ aunts and uncles.
[185] Both parties have post-secondary education. K.K. has a doctorate in medicine and M.M. has a master’s degree in information technology. M.M. was 23 years old and K.K. was 27 years old when they married on March 10, 2003. M.M. testified that she was pressured by family members to agree to the marriage. After the wedding, the parties moved to Chennai, where K.K. had rented a home and obtained a job in a private hospital.
[186] K.K. testified that his long-term goal has always been to construct a hospital in India to provide health care to indigent people. To earn enough money to achieve that goal, he planned to obtain a licence to practise medicine in Canada. He began studying for accreditation exams to pursue a medical career overseas. He stated that he discussed his plans with M.M. and she encouraged him to follow his dreams. M.M. denies having any knowledge of his plans to immigrate to Canada at that time.
[187] Prior to their wedding, M.M. had been working for a short time in the field of information technology. When she began cohabiting with K.K., he would not allow her to work outside the home. According to her testimony, which I accept as credible, K.K. was extremely controlling from the outset of their marriage. She stated that she lost her freedom and individuality while living with him. He insisted that she dress in a particular fashion, wear only certain colours, listen only to certain music, cook and eat only the food he liked to eat. He even demanded that she pray to a specific god. K.K. denies these allegations, but I accept them as true.
[188] It is undisputed that M.M. was miserable in the marriage. Within about 30 days of the wedding, she returned to her parents’ home in Pollachi and told them that she wanted a divorce. They urged her to remain in the marriage and try to make it work for the sake of the entire family’s reputation. They pressured her to return to live with K.K., which she did.
[189] M.M. testified that, upon her return to Chennai, she suffered physical and verbal abuse at the hands of K.K., who struck her in anger and constantly put her down. He told her that she was beneath him because he was a doctor, and that he sacrificed a lot in marrying her, just to show gratitude to the family members who raised him. She testified that living with K.K. was “breaking” her inside. She tried to leave him again about three months into the marriage, but she felt the weight of familial, religious and cultural norms pressing down on her. Her mother kept telling her that “he will change”. She did not want to shame her family, so she hoped that her mother was right and agreed to stay in the marriage.
[190] When cross-examined on this topic, K.K.’s counsel suggested that, had the alleged abuse really been happening, M.M. surely would have left the marriage. This line of questioning rests on discredited myths about how victims of domestic violence ought to behave. M.M. explained that her parents always convinced her to go back. She said that in her culture, separation and divorce were frowned upon. She testified that she was pressured to compromise, to give her husband another chance, to try to make the marriage work. She pleaded with them, sharing her experiences of abuse and pain, but extended family members were also applying pressure for the marriage to remain intact. She testified, “me being a girl child, my voice was not heard”. She ultimately succumbed to the family pressure. Contrary to the insinuation of K.K.’s counsel, there was nothing implausible about her testimony.
[191] I should note that, on several occasions during her testimony, M.M. referred to Indian cultural norms. I have accepted as credible her testimony about her personal exposure to certain customs and norms in India, and about the values that informed her own family’s dynamics. I make no findings about Indian culture generally. Given the broad ethnic and religious diversity of the population of India, it would not be reasonable or appropriate to generalize about Indian culture.
[192] During her examination in chief, M.M. testified that she conceived a child within the first six months of the marriage but miscarried the pregnancy after K.K. punched her in the abdomen. She repeated her account of this event during her cross-examination and was not challenged on it. K.K. did not address the topic when he testified in reply, other than his blanket denial of any physical abuse. I accept M.M.’s evidence as true.
[193] M.M. conceived again a few months later and carried the second pregnancy to term. Around the seventh month of her pregnancy, she went to live with her parents. Both parties testified that it is common in their culture for a woman to go to her mother’s home to give birth and to remain living there for several months after the birth.
[194] M.M. testified that K.K. provided no financial support to her while she was pregnant and living with her parents. He testified that he gave her money to cover her living expenses and to attend at a hospital to give birth. I prefer M.M.’s testimony on this issue because K.K. contradicted himself. Although he claimed to have supported her financially in the months leading up to the birth of their first child, he also testified that he stopped working during that period to devote himself to studying for an upcoming medical exam. He said he “had to beg people for money” to help him pay the $500 exam fee. Given that he was struggling financially and had no income, I find it improbable that he was making support payments to M.M.
[195] K.K. was required to travel to Dubai to take his exam and he therefore missed the birth of their first child. He explained that he could not reschedule the exam because he would lose his $500 deposit, which he could not afford to repay. He said he prioritized writing the exam because it would provide the opportunity for a more prosperous future for his child.
[196] When K.K. returned from Dubai, he went to visit M.M. and spend time with their newborn daughter, V.K. M.M. testified about an argument that they had in her parents’ presence, which ended with him ripping her housecoat and exposing her naked body. M.M. said she felt deep shame because her father had to cover up her nudity. She recalled that her parents were upset with K.K. and told him to “get out” of their house.
[197] When K.K. was questioned about this incident, he denied hitting and pushing M.M. and tearing her clothes, but when asked whether his mother-in-law told him to leave the home, he said, “I don’t remember”. I would expect that such an event would be sufficiently memorable that he should have been able to answer the question with a simple yes or no. I infer from the fact that he did not outright deny being ousted from the home that the ouster likely happened. This inference supports my conclusion that M.M.’s description of the argument is probably accurate.
[198] M.M. testified that, to this day, she is still angry with her mother because when K.K. returned to her parents’ home several days later, her mother let him in. M.M. explained that she wanted nothing to do with him and had refused to open the door to him. She recalled her mother saying that K.K. was her mother’s nephew and V.K.’s father and should therefore be welcomed back into the home.
[199] A few weeks later, in early December 2004, K.K. travelled to Canada to pursue his dream of practising medicine overseas. M.M. testified that he provided her with no financial support while he was away, whereas he testified that he sent M.M. $50-$100 monthly to support her and the child. His claim is difficult to reconcile with his testimony that he survived in Canada on borrowed money, struggling financially and literally “begging people to help” him buy clothes and pay for accommodation. He said he was so destitute that he was eating only one meal a day in a Gurdwara because he did not have money to buy food. I conclude that it is unlikely, in the circumstances, that he was wiring money to M.M. in India. I accept her testimony that she received no financial support from him.
[200] M.M. testified that V.K. had a weak immune system from birth and experienced multiple infant health issues that required frequent trips to a paediatrician’s office. M.M. started working as a teacher in a local school about three months after V.K. was born to earn money to pay for the medical bills. Her parents and siblings cared for V.K. during the day.
[201] M.M. testified that, when K.K. called her parents’ home from Canada, she initially refused to speak to him. She was trying to save money to pay for a divorce. Her mother, however, would put the phone up against V.K.’s ear so that V.K. could hear K.K.’s voice. M.M. was angry at her mother for doing this, but over time, she saw that V.K. was responding joyfully to her father’s phone calls. Her family members urged her to “give him another chance” for V.K.’s sake. She became persuaded that it was in her daughter’s best interest to have a relationship with both parents, so she began to speak with K.K. on the phone when he called.
[202] K.K. testified that, during his first trip to Canada, M.M. would sometimes take his calls, but other times refused to speak with him. He said she “had some issues” so he spoke to her doctor about it. He was asked to elaborate and stated, “[s]ome days, she spoke well to me, and sometimes not, so I would reach her doctor and ask what was happening to her.” He claimed that M.M.’s doctor told him there were “serious biochemical changes” going on in M.M.’s mind. K.K. was extremely vague about the nature of the purported mental health issue, stating simply that it was “something related to anxiety”. Given his medical training, I would have expected him to be able to be more precise in his answers.
[203] M.M. denies that she had a mood disorder at that time. She denies that she was being treated by a physician for any sort of mental health issue. Based on the totality of the evidence at trial and considering the vagueness of K.K.’s evidence, I accept M.M.’s testimony on this point.
[204] In December 2005, after writing his qualifying exams in Canada, K.K. travelled back to India and lived with M.M. and V.K. in M.M.’s parents’ home for approximately four months. M.M. testified that she was once again subjected to physical hitting, baseless accusations and emotional abuse. K.K. denies these allegations of violence, but I find that they are consistent with the preponderance of probabilities based on the totality of the evidence at trial.
[205] K.K. departed again for Canada in March or April 2006. M.M. and V.K. remained in India at her parents’ home. K.K. kept in touch with them by telephone. M.M. testified that, at times, when V.K. was crying, her mother would suggest that she call K.K. to soothe the child. M.M. recalled that it was “beautiful” to see V.K. stop crying when she heard her father’s voice. She realized that V.K. had bonded with K.K. and was benefitting from the calls.
[206] K.K. returned to India in 2007. He had obtained his Canadian licence and wanted to take M.M. and V.K. back to Canada with him. M.M. was reluctant to go because she feared for her safety. She testified that she was worried about how she could protect herself “from this man” while living in a foreign country. She was besieged by extended family members, especially male elders, who implored her to follow her husband. Her mother and uncles persuaded her that it was best for V.K. She recalled K.K. asking her for another chance, promising that he “would not do it again”. She relented and agreed to accompany him.
Married Life in Newfoundland (December 2007 to June 2011)
[207] The parties and V.K. landed at Pearson airport in Toronto in late November 2007. V.K. was three years old. M.M. had little English fluency and no international travel experience. She had no prior exposure to Canadian culture and was facing a challenging period of dislocation, profound adjustment, adaption and acclimatization.
[208] K.K. immediately departed for Newfoundland, where he had received a job offer. M.M. and V.K. stayed in Toronto at the home of a family friend named Thanushanti. After three weeks, they joined K.K. in Newfoundland.
[209] The family initially lived in Port aux Basque near Corner Brook, then relocated after about three months to Grand Bank, where K.K. was practising medicine. Although Grand Bank was less remote, it still felt quiet to M.M., who was accustomed to more densely populated living conditions. She felt terribly isolated compared to her former life in India, where she was surrounded by family and regularly interacted with co-workers, neighbours and peers.
[210] K.K. worked regular day shifts at a hospital and did night shifts in the emergency department. M.M. took care of V.K., prepared all the family meals and maintained the household. She testified that K.K. controlled their finances. She said she had no source of income, no credit card, and not even a bank account. They did not have a joint account. She had to ask him for money whenever she needed to buy something.
[211] K.K. did not outright deny these claims about their finances. During his cross-examination, he said he could not remember whether M.M. had a bank account in Newfoundland. He could not recall whether she had a debit card for his account. He acknowledged that she did not have a credit card but added that she could not qualify for one because she was unemployed. He did not suggest that he let her use his credit card. Instead, he testified that he was the only breadwinner in the family, so he took her shopping when she needed to buy clothing, shoes or groceries. He said he took her out to eat in a restaurant every week. He insisted that “she had money” because she was living with him. In other words, she had access to his money at his sole discretion. K.K.’s testimony on this topic supports M.M.’s contention that he used his position of relative financial power to exert control and reinforce her dependence on him.
[212] K.K. would give M.M. $5 so she could pay for a taxi to take V.K. to a drop-in-centre for parents and pre-school children once a week. She met and befriended a woman named Susan at the drop-in-centre. Susan’s son Nathan became friends with V.K. M.M. testified that staff at the drop-in-centre asked her to work cleaning toys for three to four hours a week. The work did not require any English language skill. She wanted to do it, but K.K. said no.
[213] When he was asked whether M.M. wanted to work outside the home while they were living in Newfoundland, K.K. responded that she did not have a Social Insurance Number and was in Canada on a visitor’s visa, so she could work. He was then asked whether M.M. could have obtained a work permit despite her visitor status in Canada. He said “I left that to her. I cannot force her.” He added, “I told her the rules of the country, as a visitor you cannot work without a work permit. I told her the rules, that’s all.” He was then asked whether he encouraged her or helped her to apply for a work permit. He responded, “I don’t remember, but I know the laws.” As a newcomer to Canada, M.M. did not know the laws. She was unaware of how she could go about obtaining a work permit and K.K. did nothing to enlighten her. He was selective in the information that he shared with her because he did not want her to take any other steps toward independence.
[214] According to M.M., K.K. criticized her constantly, insulting her cooking, her parenting and the way that she dressed and talked. He continued to exert control over every aspect of her life, from what she wore, to what she listened to, and who she spoke to.
[215] M.M. did not have a cell phone. They had a home phone, but no long-distance calling plan. She testified that he would give her phone calling cards to contact her family in India, but he used the cards to monitor the numbers that she called and the length of the calls. He would interrogate her about them. She started asking Susan for rides to the drop-in centre so she could save the $5 taxi fare and use the money to purchase her own calling cards to contact her family without his knowledge. Susan bought the calling cards for her because she could not leave the house.
[216] K.K. testified that, in the fall of 2009, he obtained a Vonage account, which allows for telephone calls over the internet. He said M.M. then “had liberty to receive calls and call anybody from the home line”. However, he did not deny M.M.’s testimony about the use of calling cards prior to the fall of 2009.
[217] M.M. testified that, other than Susan, she had no support network and was extremely isolated. K.K. contested her narrative. He insisted that it was he who was isolated. He said he had no friends in Newfoundland except for one doctor colleague. He claimed that M.M. knew a lot of people and had an active social life, whereas he was either working at the hospital or staying home to look after V.K.
[218] I found K.K.’s evidence on this issue to be self-serving and implausible. He had almost two prior years of experience living and studying in Canada, was more fluent in English and more familiar with the environment, social norms and customs here. He had a job that permitted him to interact with colleagues daily and afforded him an elevated social status as a medical doctor. He was no doubt working hard and focusing on his career, but the suggestion that he was isolated caring for V.K. while M.M. was busy and immersed in the community is doubtful. She was culturally dislocated and had no means of developing a vast social network without a driver’s licence, money, credit, English fluency or a job.
[219] M.M. depended on K.K. for transportation. She described driving with him as “torture” because he would lock the car doors and berate her. In the car, she could not escape his verbal abuse. At home, M.M. said she would lock herself in the washroom where at least she had a window to escape if necessary. She testified that K.K. subjected her to physical and sexual violence. She stated that V.K. witnessed the verbal abuse and his physical aggression but was not exposed to the acts of sexual aggression because they occurred behind closed doors.
[220] M.M. explained that she was unaware of any supports available to her in the community. Her friend Susan knew some of what was happening and encouraged her to report K.K.’s violence to the police. She told Susan, “We don’t do that in our culture.” She had nowhere to go and no means to support herself without K.K. When recalling that period of her life, M.M. found it difficult to find the words to express how she felt. She said, “I was dead body.”
[221] K.K. acknowledged that they argued and that there were “ups and downs” in their marriage, but he asserts that M.M. has fabricated the allegations of abuse. Based on my assessment of their respective credibility, I prefer and accept M.M.’s testimony about the family violence. M.M. gave birth to their second child, J.K., in the fall of 2009. By then, V.K. had started school. When J.K. was six months old, they hired a housekeeper to assist with cleaning. They began to enjoy a more financially comfortable lifestyle. K.K. would rent a local ice rink so the children could go skating. He took the family to a community centre pool to swim. They went whale watching on a boat tour. But according to M.M., whose evidence I accept as credible, the father’s verbal abuse and physical aggression continued unabated. She recalled him throwing and breaking dishes when he did not like the curry she prepared. She said both children were regularly exposed to such incidents of family violence.
[222] In November 2009, one of V.K.’s teachers contacted the Children’s Aid Society (CAS) because of a disclosure that was made by V.K. There are no CAS reports from Newfoundland in the record, so the precise nature of the disclosure is not in evidence, but the fact of the disclosure and M.M.’s resulting “acute reactive stress” is mentioned in the clinical notes of M.M.’s family doctor at the time.
[223] According to M.M., K.K. convinced her the CAS would come and take the children away. She was fearful of this, so she told the CAS workers who came to the home that nothing happened. She told the teacher at V.K.’s school that it must have been a misunderstanding. She deliberately withheld reporting K.K.’s violence because she thought she would lose custody of her children.
[224] M.M. testified that K.K. suspected her friend Susan had contacted the CAS, so he forced M.M. to withdraw from their friendship. He forbade Susan and Nathan from visiting their home. M.M. became even more isolated and unhappy as a result. M.M.’s evidence on this issue was not challenged on cross-examination and was not contradicted by K.K. when he testified.
[225] In the summer of 2010, the parties and the children took a trip to India. After visiting K.K.’s hometown, K.K. dropped M.M. and the children at M.M.’s parents’ home in Pollachi. When he returned to pick them up, M.M. did not want to leave with him. An argument erupted, after which M.M. made a complaint to the local police, alleging that K.K. was harassing and abusing her.
[226] The police investigated and eventually mediated a resolution to the complaint. On or about August 4, 2020, K.K. signed an agreement not to disturb M.M. and to provide her with monthly financial support while she stayed at her parents’ home with the two children. M.M. agreed, in exchange, to withdraw her complaint. The parties agreed that M.M. would remain in India with the two children longer than originally planned. It was understood to be a temporary separation, but for as long as M.M. wanted to remain in India. K.K. returned to Canada by himself.
[227] A copy of the agreement that was mediated by the Indian police and signed by the parties was adduced by K.K. during the trial. It is written in Tamil. No English translation was provided for the court, but the parties agree on the content of the document, so I did not insist on a translated copy.
[228] M.M. remained in India with the two children until January 2011. V.K. attended school in India. K.K. sent monthly support payments in accordance with their agreement.
[229] M.M. testified that K.K. enlisted the support of their mutual relatives to pressure her to return to Canada. She said the “same cycle happened”. Ten people from her extended family came to her parents’ home and urged her to return to Canada for the sake of the two children. She agreed to go back. K.K. travelled to India to get her and the children in December 2010. The family travelled back to Newfoundland together in January 2011.
[230] Shortly after their return from India, K.K. started planning a move to Ontario. M.M. was hopeful that she would be much happier living there. He was looking for work in the Greater Toronto Area. She had spent three weeks at Thanushanti’s house in Toronto when she first arrived in Canada and was therefore aware that it was a large urban centre with a sizable Indian community. She was excited about the prospect of meeting people from her community who spoke her language. She believed that she would be less isolated in Toronto and was looking forward to the move.
Married Life in Toronto (June 2011 to September 2011)
[231] The family relocated to Ontario in June 2011. The parties lived in a rented apartment on Bayview in Thornhill. K.K. was working at several medical clinics in Brampton, Ajax, Markham and Vaughan. He regularly worked six or seven days a week. M.M. was caring for the children.
[232] Shortly after moving to Ontario, M.M. slipped in the washroom and tore a ligament in her leg. It was a painful injury. She continues to suffer the lingering effects of the injury to this day.
[233] K.K. wanted to hire a nanny, but M.M. objected. They argued about this frequently. M.M. saw no reason for an outsider to come into their home and care for the children because she was available and capable of doing so. She had no work outside the home; raising the children was her entire focus in life. She felt that hiring a nanny was just one more way for K.K. to denigrate her by suggesting that she was not a good enough mother.
[234] M.M. testified that V.K. had swimming and skating lessons in a nearby community centre, so she brought the children there. She spent time with them at a library. When V.K. started school in Toronto, K.K. showed M.M. how to take public transit so she could accompany V.K. on the bus to and from school. She would take J.K. to a drop-in centre while V.K. was in class. She enjoyed these outings as they gave her opportunities to interact with other people.
Sustained Manipulation of Mother’s Mental Health
[235] A pivotal incident occurred in September 2011, which resulted in M.M. being hospitalized for 17 days in NYG Hospital. Before reviewing the evidence related to that incident, it is necessary to provide some background information for context.
Newfoundland (2010-2011)
[236] While living in Newfoundland, M.M. was seeing Dr. Bernard Roberts as her family physician. Dr. Roberts was a colleague and close friend of K.K. They socialized together outside of work. M.M. was seeing Dr. Roberts for a variety of routine health issues in 2008 and 2009. Beginning in March 2010, Dr. Roberts began to treat M.M. for depression and anxiety.
[237] M.M. testified that K.K. returned home after attending a physicians’ conference in the winter of 2010 and advised her that he had spoken to Dr. Roberts at the conference and Dr. Roberts thought that she was experiencing postpartum depression. She had never heard the expression “post-partum depression” and did not know what it meant. K.K. made an appointment for them to speak with Dr. Roberts. M.M. did not question this because she had faith in K.K.’s medical knowledge and trusted Dr. Roberts’s advice.
[238] Dr. Roberts’s clinical notes record, in significant detail, nine meetings in his office between March 30, 2010 and June 21, 2011, each one for “depression and anxiety” and “severe marital disharmony”. The clinical notes prior to March 30, 2010 make no mention of depression or anxiety. Post-partum depression is only specified in a couple of the notes.
[239] M.M. described the first visit to Dr. Roberts’s office after the physician’s conference as an exercise in frustration. She recalled that K.K. and Dr. Roberts “talked very high” as medical professionals and she was unable to follow their dialogue. She cried and tried to convey, with her limited English, that her despair was related to the mistreatment she was receiving from K.K. She recalled telling Dr. Roberts that she was not getting proper sleep and was not able to connect with anyone in the community. Dr. Roberts’ clinical notes for that March 30, 2010 visit read as follows:
Depression/anxiety. Past history of depression having been on Prozac in the past. Has all of the vegetative symptoms of depression including increased irritability, mood swings, insomnia, lack of interest, decreased socialization, problems with thinking and concentrating and making decisions. Her problems are compounded by insolation [sic] ie she is living in Grand Bank and isolated by the community because of her culture.
[240] M.M. did not have access to Dr. Roberts’s clinical file at the time and was not aware that he had made those entries in his clinical notes. She testified that she had no past history of depression and did not tell Dr. Roberts that she did. She further testified that she had never been prescribed Prozac and did not tell Dr. Roberts that she had been. She suspects that K.K. gave that false information to Dr. Roberts, but candidly acknowledged that she did not hear him do so. K.K. denied sharing any information about M.M.’s medical history with Dr. Roberts.
[241] I accept M.M.’s testimony that the past medical history information conveyed to Dr. Roberts was inaccurate and was not supplied by her. There were opportunities for K.K. to share the information with Dr. Roberts. The two men knew each other well and spoke often. They had talked about M.M. possibly having postpartum depression during a recent physicians’ conference, and K.K. had booked the appointment with Dr. Roberts. I infer that the incorrect information must have been provided by K.K.
[242] Other than the reference to isolation within the community, the way Dr. Roberts described M.M.’s symptoms of depression is consistent with the information having been provided by a third-party observer, rather than self-reported by her. I find it probable that K.K. provided both the symptomology and the psychiatric history.
[243] M.M. testified that K.K. and both children accompanied her to every appointment with Dr. Roberts. She said it was customary in India for couples to attend doctor’s appointments together and discuss their problems and each other’s health issues as a family. She was not familiar with Canadian standards regarding doctor-patient privilege. She was not aware that she had the right to request privacy with Dr. Roberts. In any event, she initially thought he was going to help them solve their marital issues. She came to realize later that he was focused on treating her for what he perceived to be post-partum depression because he had been “preloaded with information” from K.K. suggesting that her mental health was the issue.
[244] Dr. Roberts’s clinical notes confirm his perception that, “There seems to be fairly severe marital disharmony because of the depression.” From M.M.’s perspective, the inverse was true: to the extent she may have been suffering from depression, it was because of the so-called “marital disharmony”, or rather the intimate-partner abuse to which she was being subjected.
[245] K.K. initially testified that he was “just a taxi driver for the appointments” with Dr. Roberts. He said he drove her and dropped her off at the doctor’s office, then waited outside. He claimed that “whatever happened was between her and the doctor.” His evidence shifted later in his testimony when he acknowledged that, “if they want me to come in, I would”. He added that, according to Canadian standards, nobody can sit with a patient during a doctor’s visit unless the physician first obtains the patient’s consent. He implied that M.M. expressly consented to his presence whenever he was there. M.M. denied this.
[246] Given the shift in his testimony, K.K. was asked to clarify whether or not he attended M.M.’s appointments with Dr. Roberts. He equivocated, first stating that he drove her to the appointments but waited outside, then stating that he “may have been inside the room” with the doctor. He ultimately admitted that he was sometimes in the doctor’s office with M.M. but not always. However, he consistently denied discussing M.M.’s medical history with Dr. Roberts, providing Dr. Roberts with any information about her symptoms, and having any influence over or involvement in M.M.’s care and treatment.
[247] Dr. Roberts’s clinical notes do not list who was present at the meetings, but it is clear from the content of the notes that K.K. was in attendance for many, if not all, of them. It is also apparent from the notes that K.K. interacted with and provided information to the doctor relating to M.M.’s symptoms and medical history.
[248] For example, Dr. Roberts commented in one of his notes that the parties were “quiliring (sic) like children while they are in the office.” On one occasion, he mentioned both parents and the children being present, despite his suggestion that V.K. be removed from the room. On the date of each visit, he recorded information shared during the session, some of which obviously reflects K.K.’s perspective. (e.g. “The husband is trying his very best to try to help the situation along”, “He is apparently working all day and then comes home and does the cooking and the dishes etc.”, “She refuses to take part in anything in the house or outside the house”, “She continues to play games with her husband’s work schedule”, “She does very little work at home. He does all the cooking at home. She is constantly complaining about the way in which he does his work.”) These statements, which were recorded during different visits over time, corroborate M.M.’s testimony that K.K. was present and was sharing information with Dr. Roberts about their marital difficulties and about her alleged symptoms of depression. During his cross-examination, K.K. ultimately admitted to having made some of the above statements to Dr. Roberts.
[249] The clinical notes show that Dr. Roberts prescribed anti-depressant and anti-anxiety medication to M.M. on March 30, 2010. Subsequent notes dated April 16, 2010 record that M.M. was refusing to take the medication because she was breastfeeding. Later notes show that the prescription was renewed. Dr. Roberts wrote, “The husband with (sic) monitor the Cipralex and will gradually titrate the Cipralex up depending upon S/ in mom and the baby.” This notation constitutes compelling circumstantial evidence that K.K. was communicating doctor-to-doctor with Dr. Roberts. It establishes Dr. Roberts’s understanding that K.K. was actively involved in monitoring M.M.’s symptoms and treatment compliance. It contradicts K.K.’s testimony that he did not speak to Dr. Roberts about M.M.’s mental health or treatment because of doctor-patient privilege.
[250] The clinical notes dated February 16, 2011 state, “Has just returned from India after staying with her parents for 8 months…. She is on numerous medications from her treating psychiatrist in India.” M.M. denied seeing a psychiatrist in India during her stay in 2010. She denied being prescribed any medications while in India and denied bringing any medications with her from India. She testified that she did not say those things to Dr. Roberts.
[251] When she was asked where Dr. Roberts obtained this incorrect information, she responded, “not from me”. She was asked whether K.K. was in the room with Dr. Roberts during that visit. She said yes but noted that he did not make those statements to Dr. Roberts in her presence. She demonstrated restraint in not speculating that K.K. must have provided the false information to Dr. Roberts on some other occasion. Throughout her testimony, she exhibited no tendency toward conjecture or hyperbole, despite obvious opportunities where the temptation to engage in such behaviour presented itself. She was cautious not to overstate facts within her knowledge. This caution contributed to my positive assessment of her credibility.
[252] Dr. Roberts’s clinical notes dated March 16, 2011 include the following information:
She continues to play games with her husband’s schedule. She calls him at work when he is on call at the emergency and then hangs up on him stating that she is going to do away with herself. He then immediately has to excuse himself from the hospital and has to rush home only to find that she is sleeping. She has also on one occasion taken an overdose of gravol when he was on call. She continues to play games with the family.
[253] M.M. testified that she was not aware of this information having been shared with Dr. Roberts. She denied ever calling K.K. at work and threatening to harm herself. She denied calling him at work and then hanging up on him. She said he never rushed home because he was afraid that she would self-harm. She was adamant that she never took an overdose of Gravol. She stated that she did not provide any of that information to Dr. Roberts. She was understandably troubled to discover (from the notes) that Dr. Roberts thought she was “playing games” to manipulate K.K. and wreak havoc on his work schedule.
[254] During his re-examination, K.K. admitted that he provided the disputed information to Dr. Roberts, but he claimed to have done so in M.M.’s presence. He said, “She agreed to those statements.” I reject this testimony as improbable and self-serving.
[255] M.M. consistently denied overdosing on Gravol, as alleged by K.K. He was questioned about this supposed suicide attempt and was asked whether he could produce a medical record of M.M.’s hospitalization or treatment for the overdose. He responded that he called the Poison Centre in Newfoundland when it happened and they advised him to monitor M.M.’s symptoms at home, so he did not bring her to the hospital. I find it improbable that a physician who was practising emergency medicine would feel the need to call a Poison Centre help line for a toxicology consult about an over-the-counter medication and for advice on whether to transport the patient to hospital. I believe that the Poison Centre is a cover story invented by K.K. to account for why no medical documentation of the alleged suicide attempt exists.
[256] I accept M.M.’s testimony that she did not overdose on Gravol, either accidentally or intentionally. I conclude that she did not tell Dr. Roberts she had overdosed on Gravol. She had no reason to give such false information to the doctor. The information was mostly likely conveyed by K.K.
[257] M.M. initially resisted taking anti-depression medication when it was first prescribed by Dr. Roberts. She said she only took Celexa, which she understood to be a drug that would assist her with restorative sleep. It appears from Dr. Robert’s notes that Celexa is also an anti-depressant.
[258] M.M. explained that, over time, she was persuaded by K.K. and Dr. Roberts to take whatever medications were prescribed. The clinical notes show that Dr. Roberts prescribed Cipralex, Rivotril, Pristiq and Remeron. She was asked what the Remeron was for and answered, “I don’t know what it was for. They give me tonnes of medication. I didn’t investigate for what reason they are giving it.”
[259] Her use of the pronoun “they” was not in error. She testified that there were two occasions when K.K. prescribed medication to her or changed the dosage of medication prescribed by Dr. Roberts. She also said K.K. would bring her medications from the pharmacy and she took whatever he told her to take because she trusted his judgment as a doctor.
[260] K.K. testified that he is not a psychiatrist and does not prescribe psychiatric medications. He asserted that he would not, in any event, prescribe medication to his own spouse. There is circumstantial evidence to support M.M.’s claim that K.K. did, in fact, prescribe or at least supply her with medication. Dr. Roberts’s clinical file confirms that he prescribed Cipralex and Rivotril to M.M. on March 30, 2010 and again on April 16, 2010. At the next visit to his office, his notes reflect that M.M. had started taking Celexa, which he had not prescribed. M.M. was not seeing any other physician who could have prescribed the Celexa to her in April 2010. I infer that this was one of the occasions when K.K. prescribed or provided anti-depressant medication to her.
[261] The last entry in Dr. Roberts’s clinical file is dated June 21, 2011. The notations for that visit confirm that both parties were present. Dr. Roberts wrote, “things appear to be going well. They are leaving in a week for Ontario. The family seems very happy today and there does not appear to be any stress or striph [sic] between the husband and wife.”
Toronto (2011)
[262] Shortly after the parties relocated to Toronto, M.M. needed to see a family physician to follow up on the torn ligament that she sustained in a fall. K.K. made an appointment for her with a physician at Bur Oak Medical Centre, one of the clinics where he was working in Markham. Although the doctor’s name appears as “Komathy Jayashankar” on her letterhead, the parties consistently referred to her as “Dr. Komathy” throughout the proceeding, so I have adopted that nomenclature.
[263] K.K. drove M.M. to the appointment. M.M. recalled that he told Dr. Komathy she was being treated in Newfoundland for post-partum depression. He informed the doctor of the anti-depressant medications that she was taking, even though she was not there to consult about her mental health. Dr. Komathy then referred her Thuraisamy Sooriabalan, a psychiatrist at Scarborough Centenary Hospital, for an assessment.
[264] M.M. testified that K.K. also accompanied her to the appointment with Dr. Sooriabalan. She recalled the two men talking “in medical language” that she could not follow, then Dr. Sooriabalan telling her she was “under severe depression”. He prescribed new medications for her. She did not understand the basis for his diagnosis, but she took the medicine that he prescribed.
[265] K.K. initially admitted telling Dr. Komathy the medications that had been prescribed to M.M. by Dr. Roberts. He was then questioned about why M.M. could not speak for herself during the doctor’s visit. He began to equivocate, claiming not to remember what happened in the doctor’s office and stating that he “left it to her [M.M.] to talk to the doctor and I was not involved in that”.
[266] K.K. was asked whether it was upon his recommendation that Dr. Komathy referred M.M. to Dr. Sooriabalan. He scoffed, “I don’t even know who Dr. Sooriabalan is” and claimed not to remember attending the appointment. He later changed his evidence and said, “I remember taking her up to the office but after that, I don’t remember what happened.” It was put to him that he sat through M.M.’s appointment with the psychiatrist and provided Dr. Sooriabalan information about her medical history. He deflected the question by stating that, according to Ontario standards, a patient should provide their own history, so if Dr. Sooriabalan was taking M.M.’s history from him, then the doctor could be reported to the CPSO.
[267] Ms. Pasha then put to him that he not only spoke for M.M. at the appointment with Dr. Sooriabalan, but also provided incorrect information and intentionally misled the doctor into misdiagnosing M.M. with severe depression. He responded that if the psychiatrist was misled, it was not his fault because he is “just an ordinary practitioner.” It was clear by this point in his testimony that he had been untruthful when he initially stated that he did not even know who Dr. Sooriabalan was.
[268] Neither party could recall the names of the medications prescribed by Dr. Sooriabalan, but it is undisputed that they were different from what M.M. had been taking in Newfoundland. M.M. testified that, after she started taking the new drugs, she began to experience shortness of breath. She said she complained about this side effect to K.K., but he ignored her and said it was all in her head.
M.M.’s Evidence About her Hospitalization (September 2011)
[269] On September 26, 2011, while K.K. was at work, M.M. called 911 because she was gasping for air and felt she could not breathe. An ambulance responded. The paramedics looked at her pill containers and documented what she was taking. They gave her an oxygen mask and took her blood pressure. They asked whether anyone was available to care for the children while they transported her to the hospital. She gave them K.K.’s contact information and they called him.
[270] M.M. recalled that the paramedics gave her medication that made her drowsy. When K.K. arrived home, she was on a stretcher. She could see him speaking to the paramedics at the front entrance and overheard him telling them that she had depression in her twenties and had attempted suicide. Her thoughts were racing as she asked herself, “why is he lying?”
[271] M.M. was transported to the NYG Hospital in the ambulance. She was taken to the emergency department, where she waited in the hallway on the stretcher. K.K. arrived with both children. She recalled that he was angry at her and demanded, “Who gave you permission to call 911? Now you will know who I am!”
[272] She said she felt drowsy from the medication she had been given and was crying. She asked K.K. why he lied to the paramedics and told them that she had depression before they married and that she had tried to commit suicide. She testified that he responded, “Whatever I say is the truth. I said the truth.” She found this statement to be “really alarming”.
[273] Eventually, K.K. and the children went home. M.M. was moved from the hallway to a hospital room, where she was seen by a doctor named Jamie Blicker. No Tamil interpreter was provided to help her communicate. The doctor had difficulty understanding her English, plus she was drowsy from medication. She had trouble explaining herself to him. That doctor left and, some time later, another doctor came into her room and told her, “We spoke with your husband. You will be admitted here for a few days.” She thought she was going to be treated for her shortness of breath.
[274] The next morning, she was taken to the psychiatric unit and was admitted involuntarily for an assessment pursuant to a Form-1 Application under the Mental Health Act, R.S.O. 1990, c. M.7. M.M. recalled that, in the days that followed, she met with a female doctor named Dr. Guimond. She pleaded with that doctor for help and tried to explain what was happening to her. She asked for a Tamil interpreter because she did not have the necessary vocabulary to express herself. She did not know the words “domestic violence” in English. She did not know the word “abuse” at that time. She said the hospital staff told her that her English was good, and that no interpreter was required.
[275] M.M. tried in vain to convey to Dr. Guimond that she had no history of depression other than the post-partum diagnosis made by Dr. Roberts in Newfoundland. She told Dr. Guimond that her husband was lying to the doctors and trying to take her children away from her.
[276] M.M. wanted to leave the hospital to take care of her children, but she was not permitted to go. She called her friend Thanushanti, with whom she had stayed when she first arrived in Canada. She asked Thanushanti to give her news about the children’s wellbeing. Thanushanti contacted K.K. and arranged for the children to visit her at the hospital. They arrived with a nanny that K.K. had hired to care for them. M.M. was shocked by this. She had made it clear that she did not want a nanny caring for the children.
[277] M.M. testified that she was told by the doctors that she could not go home because she was bipolar. She did not know what the word “bipolar” meant. The doctors told her she needed to be medicated. She was convinced that there was nothing wrong with her mental health. However, she complied by taking medications that were given to her because she believed it was the only way she would be discharged from the hospital.
[278] After about six days, the hospital let her start going home on overnight passes. She said she was quiet while home and focused on spending time with the children. She fed them, showered them and slept with them. But the next day, K.K. would give a false report to the doctors about her behaviour in the home. She stated incredulously, “He did this in front of my eyes”. She testified that she would tell the doctor, “He is lying.” She said they ignored her truth. Her night passes were cancelled.
[279] M.M. testified that, while she was hospitalized, she was prescribed Lithium for her bipolar diagnosis. She takes the position that she was misdiagnosed and blames K.K. for deliberately misleading the psychiatrists at NYG Hospital to make a bipolar diagnosis.
[280] M.M. was cross-examined at length by Ms. Bhupinder, who put to her that she was not, in fact, diagnosed with bipolar affective disorder and was not prescribed Lithium. M.M.’s evidence was unshaken by the questioning and is supported by the documentary record.
[281] K.K. tried to downplay all this medical evidence at trial, likely because it reflects more poorly on him than on the mother. He did not even mention M.M.’s hospitalization pursuant to a Form-1 application during his testimony-in-chief. When he was cross-examined about it, he initially claimed that he could not remember most of the salient details.
[282] He confirmed that, in September 2011, he received a phone call at work from paramedics who told him his wife was sick and needed to be taken to the hospital. They asked him to come home to look after the children. He said he could not remember anything else from the phone call. He stated that all he could remember from that day was seeing his daughter and two-year-old son “sitting there” when he arrived home. He could not remember who else was present in the home or how many people were there. He answered, “I don’t remember” to a series of questions about the incident but was firm in answering “no” when asked whether he spoke to the paramedics at his home while M.M. was being sedated. His evidence on that point is contradicted by the EMS Ambulance Report, which begins with the following comment:
Pts husband attended the scene and informed the crew that she had had a long battle with depression that included at least 2 previous overdose attempts. Pt has recently been getting worse with states of psychosis, and has even begun beating their children (as per husband).”
[283] K.K. was shown the EMS report and was asked whether he now recalled speaking to the paramedics. He admitted, “I said this to them”, and insisted that the information was true, that M.M. had battled depression and had made two overdose attempts. He was asked whether he also told the paramedics that M.M. had begun beating their children. He responded, “That I don’t remember.” I accept the EMS report as an accurate record of what he told the paramedics that day.
[284] Before continuing to summarize K.K.’s evidence about the events of September 26, 2011, it is necessary to review the parties’ evidence about M.M.’s alleged overdoses. I have already rejected K.K.’s testimony that M.M. overdosed on Gravol while they were living in Newfoundland. For the reasons set out above, I accept M.M.’s submission that K.K. fabricated that evidence to influence Dr. Robert’s assessment of her mental health status. I will now deal with the second alleged overdose.
Alleged Overdose in India (2010)
[285] K.K. testified that the second overdose occurred during their visit to India in the summer of 2010. He recalled M.M.’s parents contacting him to tell him that she was hospitalized. He said she overdosed on Ativan and the doctors had to “de-intoxicate” her. He stated that he paid her hospital bill before she was discharged. He did not produce proof of payment.
[286] M.M. denied that any suicide attempt, accidental overdose or hospitalization occurred in India in 2010. K.K. insisted that both overdoses happened. He said, “I did not make these up. She was treated by Dr. Roberts in Newfoundland. I have his medical reports here.” It is noteworthy that M.M.’s purported overdose in India is not mentioned anywhere in Dr. Roberts’s clinical file. There were six appointments with him after the parties returned from India in January 2011. At the first of those appointments on February 16, 2011, Dr. Roberts noted that M.M. had stayed back in India for eight months “due to the severe crisis involving herself and her husband”. This notation is consistent with both parties’ testimony about M.M.’s complaint of abuse to the police in India and the temporary separation agreement that they signed to resolve the complaint. Dr. Roberts made no record of any overdose being reported to him.
[287] Given the nature of the treatment that Dr. Roberts was providing to M.M. and the level of detail with which he made his clinical notes, I find it very unlikely that either K.K. or M.M. ever mentioned to him an overdose resulting in hospitalization in India during the summer of 2010. He surely would have included that information in his notes had it been conveyed to him.
[288] Furthermore, I find it equally unlikely that such an overdose event occurred, because it would have been a critical piece of information to share with Dr. Roberts, who was treating M.M. for depression and anxiety at the time. The fact that K.K. did not mention it to Dr. Roberts, especially during the visit in March 2011 when he told Dr. Roberts about the purported earlier Gravol overdose, suggests that it did not happen.
[289] During his cross-examination, Ms. Pasha asked K.K. whether he could produce any documentary evidence to corroborate M.M.’s hospitalization in India in 2010. He testified at length about how M.M.’s mother blocked his efforts to obtain that evidence. He explained that he brought a motion for disclosure and then his former lawyer attempted to obtain the hospital records from India, but M.M.’s mother went to the administrative department and directed them not to release the records to him.
[290] The Trial Record shows that K.K. obtained a court order on May 10, 2013, requiring M.M. to execute releases for disclosure of her Canadian medical records to his lawyer. The order also required M.M. to sign a release authorizing her own lawyer to request full disclosure of all records in the possession of “KG Hospitals Coimbatore, Tamil Nadu, India”. M.M.’s lawyer was ordered to request the medical records from that hospital and produce them to K.K.’s lawyer and, if no records were received, to produce the correspondence with the hospital.
[291] K.K. testified that M.M.’s authorization was ineffective because “the law in India is different” and M.M.’s mother told the hospital not to release the records to his lawyer. This evidence is inconsistent with the terms of the order, which required M.M.’s own counsel to obtain and then disclose the hospital records. Indeed, the May 10, 2013 order expressly prohibited K.K. from communicating with the hospital in India. The order stated: “The Applicant shall not communicate with the hospital and the Respondent’s inquiry shall include inquiring whether the Applicant or his family/friends have communicated with the hospital at any time.” Given this order, it is improbable that K.K.’s lawyer wrote directly to the hospital to request the records. Moreover, it is improbable that the hospital would have refused to release M.M.’s health records to M.M.’s own lawyer based on interference by M.M.’s mother.
[292] Despite these improbabilities, K.K. insisted on his version of the events. He repeated several times during his cross-examination, which took place in December 2020, that he and his former lawyer attempted to obtain proof of M.M.’s overdose and hospitalization in India but their efforts were blocked by M.M.’s mother.
[293] Three months later, during M.M.’s cross-examination on March 25, 2021, K.K.’s counsel suddenly produced a document purporting to be an official hospital record from India pertaining to M.M.’s overdose in July 2010. The document was tendered for the purpose of impeaching M.M.’s testimony that “nothing happened” requiring her hospitalization while in India that summer.
[294] I was displeased with this ambush tactic. Ms. Bhupinder explained that K.K. had only given her the document that morning, which is why it had not previously been disclosed to M.M. or Ms. Pasha. I was inclined to disallow it based on the lack of disclosure, but I recognized that it was a key piece of evidence relevant to the central issue of the parties’ credibility, so I decided to conduct a mini-hearing within the trial on the admissibility of the document. I required K.K. to testify and be cross-examined. To ensure trial fairness, I permitted M.M. to speak to her lawyer about the document, despite being in the middle of her cross-examination.
[295] The disputed document is a single page. It contains handwriting in English but bears a stamp in the upper right corner that is printed in Tamil. No evidence was given about what that stamp says. The bottom right corner bears a stamp printed in English stating, “Assistant Surgeon, Govt. Hospital, Pollachi”. An illegible signature appears above the lower stamp.
[296] The handwritten notations include M.M.’s name, age and gender, as well as “w/o [K.K.]”, which K.K. confirmed refers to “wife of” K.K. M.M.’s parents’ address is written near the top of the page. The notes state that the patient is “alleged to have consumed Antipsychotic tablets (40 in number) at 9:30 PM on 31-07-10 at the above-mentioned address”. There are other notations, including M.M.’s pulse and blood pressure readings, a remark that she “talks incoherantly (sic)”, and the words, “Ryles tube aspiration”. The words “police intimated” appear mid way down the page. One of the last notations before the signature reads, “Pt ref. to CMCH”.
[297] K.K. identified the document as a hospital record relating to M.M.’s treatment for an overdose at Pollachi Government Hospital in her hometown in India. He said it was given to him by police officers when he was called in for an investigation of M.M.’s complaint about him in August 2010.
[298] K.K. testified that he had the document in his possession for the past ten years, but never disclosed it to his lawyers and did not produce it earlier in the proceeding because he had been ordered by the court not to release any of M.M.’s medical records. This explanation is either disingenuous or irrational because the court order in question, dated May 10, 2013, simply states that M.M.’s medical records “shall not be used for any purposes but these proceedings, shall not be removed from [K.K.’s solicitors’] offices other than in regard to these proceedings and may not be disseminated in any manner other than in the context of these proceedings”. At no time was K.K. ordered not to adduce M.M.’s medical records as evidence in this proceeding.
[299] K.K. added that another reason for not disclosing the hospital record previously was the fact that M.M. had made a complaint to the CPSO against him for obtaining her medical records without her consent. He said he did not want to face another complaint. He was cross-examined about his prior inconsistent statements to the effect that he and his counsel had attempted in vain to obtain hospital records from India and had been blocked by M.M.’s mother. He explained that his earlier testimony was in relation to records from a different hospital, namely KG Hospital in Coimbatore.
[300] Ms. Pasha asked him to explain why he brought a motion in court to obtain an order for the release of M.M.’s hospital records from KG Hospital in Coimbatore if he knew that she had been treated for the overdose at the Government Hospital in Pollachi. He said it was because M.M. was transferred to the hospital in Coimbatore. He stated that the notation “Pt ref. to CMCH” (Patient referred to CMCH) confirms this. He explained that KG Hospital is also known as Coimbatore Medical College Hospital and that CMCH is an acronym for that hospital. He said it was at CMCH that he paid M.M.’s hospital bill before they discharged her, which is why he was seeking those records in his motion. He then spontaneously asserted,
This record is the key to everything. I keep telling the courts that she attempted suicide and nobody wanted to believe me. Luckily, I searched and found this this morning. It was in my blind spot. Luckily, [my lawyer] Ms. Buphinder asked me to search.
[301] K.K. denied Ms. Pasha’s suggestion that he fabricated the Pollachi Government Hospital record. I admitted the document as evidence, but advised the parties that its authenticity, reliability and any weight to be given to it were yet to be determined.
[302] M.M.’s cross-examination resumed. She maintained her position that the alleged overdose did not occur and that she was not hospitalized while in India in July 2020. I accept her testimony on this issue as credible. I have concluded, on a balance of probabilities, that the purported record from the Pollachi Government Hospital is inauthentic. There are several reasons for this conclusion.
[303] First, K.K.’s testimony that he obtained the hospital record from the Indian police during an investigation into a complaint about allegations of domestic abuse is illogical. He did not explain how M.M.’s hospitalization for an overdose related to the police investigation.
[304] Second, even if K.K. did obtain the document from the police in August 2010, it makes no sense that he would have withheld it from his own lawyers and from the court out of fear of breaching a court order or being disciplined by the CPSO. As noted previously, there was no court order preventing him from using M.M.’s medical records in the context of this proceeding. Moreover, K.K. knew he was permitted to rely on M.M.’s medical records in the context of this trial because he adduced other medical records as evidence during his case-in-chief.
[305] Third, the constraints he cites (namely fear of another complaint to the CPSO and a desire to comply with the May 10, 2013 order) did not exist at the very outset of this proceeding. When he first came to this court, in an effort to establish that the children were at risk of harm in M.M.’s care, he filed several medical records pertaining to M.M.’s mental health, all of which he had obtained without her consent. Had he been in possession of the Pollachi Government Hospital record confirming a suicide attempt by overdose, he surely would have included it in the materials that he filed in support of his emergency motion for sole custody of the children in January 2013. His problems with the CPSO came later. There was no reason why he would not have attempted to use the document to his advantage at the commencement of the proceeding.
[306] Fourth, if K.K. was in possession of the Pollachi Government Hospital record in May 2013, he would have had no reason to bring a motion for disclosure of the CMCH Hospital records.
[307] Finally, K.K. violated the May 10, 2013 order by using Dr. Zalan’s October 2011 clinical notes in a criminal proceeding in April 2014. That breach demonstrates that he did not feel constrained by the court order or by potential CPSO proceedings.
[308] It appears that K.K. realized the weakness of his explanation for not disclosing the disputed document sooner because his evidence shifted during his cross-examination. He changed his testimony from asserting that he was afraid to use M.M.’s confidential medical records to claiming that he had forgotten where he placed the hospital record (“it was in my blind spot”). His statement that he was “lucky” to have searched and discovered it that very morning – after more than eight years of litigation – is so preposterous as to insult the court’s intelligence.
[309] Even if he had misplaced the document, he surely would have referred to its existence when he was cross-examined in December 2020 about the lack of documentary evidence to support his claim that M.M. overdosed on Ativan while in India during the summer of 2010. The fact that he did not bring it up until the middle of M.M.’s cross examination in March 2021 supports an adverse inference that it was not in his possession, and likely did not exist, when he was testifying in December 2020.
[310] For these reasons, I accept M.M.’s submission that the purported hospital record is fake. I believe that it was created by K.K. (or by someone upon K.K.’s direction) at some point after K.K. concluded his testimony in December 2020.
[311] I should note that there are features of the document itself that raise serious doubts about its authenticity. First, there is no letterhead. There is nothing on the document to suggest that it constitutes an official hospital record other than the two stamps. Second, the stamp in the upper right corner is in Tamil, but the stamp beneath the purported author’s signature (“Assistant Surgeon”) is in English. I find this odd because I would expect both stamps to be in the same language, whether Tamil or English.
[312] Third, the “Assistant Surgeon” stamp does not bear the surgeon’s name, which is also peculiar. I would expect that if the Assistant Surgeon used a stamp on hospital records beneath their signature – presumably because signatures are often illegible – the stamp would include their printed name as well as their title.
[313] Fourth, the handwriting on the document is entirely in English, even though M.M. and her family members would most likely have been speaking Tamil to the emergency physician had she been hospitalized in Pollachi.
[314] Fifth, the document includes information that is not relevant to M.M.’s clinical presentation or treatment, but coincidentally is corroborative of evidence given by the father in this family law proceeding. For example, it lists her parents’ address and specifies that she consumed the antipsychotic tablets at that address. It mentions that M.M. is the “wife of K.K.”, even though K.K. was not present when she was ostensibly admitted to the hospital. It includes the words, “police intimated”. There is no obvious medically relevant reason why a treating physician would make such notations. I believe that K.K. inserted the words “police intimated” on the record to provide circumstantial corroboration of his story that he was given the document by the police in India. He likely added the other details to corroborate additional elements of his testimony (e.g. that M.M. overdosed while at her parents’ home).
[315] Finally, if M.M. was aspirated in the government hospital in Pollachi, as the “Ryles tube” notation suggests, there is no obvious reason why she would then have been transferred to another hospital. I believe that the patient transfer notation was written by K.K. to provide him with a means of explaining his prior inconsistent testimony about having been blocked by M.M.’s mother in his efforts to obtain the Coimbatore hospital records.
[316] For the above reasons, I reject the document as inauthentic. I accept M.M.’s testimony that she was not hospitalized in India during the summer of 2010 and did not overdose on Ativan (or any other medication). I conclude that K.K. fabricated evidence (or knowingly obtained and adduced fabricated evidence) to try to justify untruthful statements that he made to the paramedics and doctors who treated M.M. at NYG Hospital in September 2011.
K.K.’s Evidence About M.M.’s Hospitalization
[317] Returning to K.K.’s testimony about the events of September 26, 2011, he recalled bringing the children to the hospital to see their mother but denied speaking to the doctor on duty in the emergency department. He was specifically asked whether he shared information about M.M.’s alleged 2010 suicide attempt with the emergency doctor. He responded, “I don’t remember”. He was asked whether any doctor at the hospital reached out to him to inquire about M.M.’s medical history. He responded, “I don’t remember”. I concluded that he was feigning memory lapses because he was trying to avoid having to answer questions about the veracity of information that he provided to the doctors at NYG Hospital in September 2011.
[318] In his Emergency Consult dated September 26, 2011, Dr. Jamie Blicker states: “The history is obtained from the patient’s husband.” He notes that he called K.K. at home and “spent some time chatting with him and got a very complete history from him.” He also notes that K.K. is a family doctor who was recently practising in Newfoundland.
[319] According to the Emergency Consult, the history provided by K.K. included that the parties enjoyed a good relationship until after the birth of their son, when M.M. became depressed and was diagnosed with post-partum depression, for which she was treated in India for eight months without success. Dr. Blicker noted K.K.’s observation that, since their recent move to Toronto, M.M. “seems to have quite an off affect”. The doctor’s notes include the following passage:
They recently moved to Toronto on July 3, 2011 and he has been extremely busy with work and notes that his wife’s behaviour has become increasingly erratic. She is quite paranoid and accuses him of all kinds of things. She also, apparently, becomes quite agitated and talks about god quite frequently. She also is extremely irritable and inpatient (sic) with her children and, apparently, has hit the children on occasion while teaching them. She was seen by her family doctor and referred to Psychiatry and she was seen … by a psychiatrist who initiated her on [new medications]. She did not seem to improve, according to her husband, and she has previously been on Pristiq while in Newfoundland and this was recently discontinued about two weeks ago. The patient actually called 911 this evening complaining of chest pain and shortness of breath; however, I believe that is really a side issue.
[320] In the section of the Emergency Consult subtitled “Physical Examination”, Dr. Blicker states:
She denies any overt suicidal or homicidal ideation; however, her husband notes that she has talked about killing himself (sic) in the past and per EMS she apparently had taken a previous overdose Gravol, and then another previous attempt with Ativan. Her husband also notes that she has been speaking to people who are not present.
[321] Dr. Blicker performed a physical examination of M.M. and remarked in his Emergency Consult that she seemed “quite disorganized in her thinking”. He stated his “clinical suspicion” that she might have “depression with psychotic features”. He concluded, “The collateral history obtained by the husband, I think, is sufficient to merit placing the patient on a Form-1, at least for now, to ensure the safety of the children and of the patient.” Dr. Blicker further noted, “I spoke with her husband and informed him of my plan” to place M.M. on a Form-1 and “he is in agreement with this.”
[322] Having originally testified that he did not speak to the emergency doctor on duty that night, then having testified that he could not remember whether he spoke to the emergency doctor that night, K.K. eventually admitted that he spoke to Dr. Blicker. He recalled the doctor calling him and saying that M.M. was disoriented and not responding to his questions. He said he told the doctor what had happened in Newfoundland and during the eight months that M.M. was in India. He acknowledged that he mentioned the two suicide attempts. He said he was just talking to the doctor in his “personal regard” as M.M.’s husband, and not as a physician giving a medical opinion.
[323] K.K. confirmed that he told Dr. Blicker M.M. had become paranoid and agitated, was talking about god frequently, and was speaking to people who were not present. He disputed the suggestion that this information influenced the doctor’s decision to place M.M. under a Form-1.
[324] A second Emergency Consult was prepared the next day by a psychiatrist named Dr. Weinstein. His notes include the following passage:
Today, the patient states that her husband wants to paint her as a bad mother, and keep her children away from her. According to the husband, with whom I did not speak but I relied on Dr. Blicker’s notes, the patient’s behavior has become increasingly erratic recently, she has been accusatory towards him of all kinds of things, including trying to keep her away from the children. She has been irritable with the children and the husband believes she hit one of the children while trying to teach them something.
[325] Dr. Weinstein summarizes M.M.’s past psychiatric history based on Dr. Blicker’s notes, which reflect the information provided by K.K. The summary includes the following: “The patient apparently has had two overdose attempts previously, one with Gravol and another with Ativan. This was related to Dr. Blicker by the husband. The husband also mentions that she has talked about killing herself.” Dr. Weinstein also notes that the husband is a family physician.
[326] Dr. Weinstein conducted a mental status examination of M.M. and recorded the following observations:
Her speech was of normal pressure and tone. The patient initially was pleasant, but became more irritable as the interview wore on. On thought content, she seemed preoccupied with beliefs that her husband does not like her, and wants to paint her in a bad light. She denied any perceptual problems such as auditory or visual hallucinations and did not appear to be hallucinating objectively. The husband has related to the Emergency physician that the patient talks to herself quite a bit, and also talks about God frequently. She described her mood now as being upset. The affect was initially pleasant, but them became somewhat irritable. She denied any active suicidal ideation or plans or any harmful thoughts towards herself or other at this time. The husband has mentioned to the Emergency physician that the patient has talked about killing herself in the past. The patient’s judgment was difficult to assess. She was oriented to three spheres. Intellect appeared to be in the average range.
[327] Dr. Weinstein made no diagnosis. He confirmed that the “patient will be admitted under the Form 1 filled out by Dr. Blicker” but stated that she “certainly does require more thorough evaluation.”
[328] Marie-Claude Guimond is the physician who oversaw M.M.’s treatment once she was admitted to the psychiatric unit. The Inpatient Consultation prepared by Dr. Guimond on September 28, 2011 shows that K.K. also influenced how Dr. Guimond assessed and treated M.M.
[329] Dr. Guimond noted that M.M. was brought to the hospital because of shortness of breath, which she attributed to a recent change in her medications. Dr. Guimond stated, “The patient reports that she was taking these medications for postpartum depression, but she denies struggling with depression.” Dr. Guimond made the following remarks,
[S]he denies any symptoms of depression. She reports that she continues to enjoy her children and spoke with reactive affect about how much she enjoys playing with them. She also denies symptoms of mania, including racing thoughts, irritability or aggression. In the Emergency Room the patient presented as “hypomanic and disorganized, as well as difficult to assess.” The husband reports that the patient has been agitated and paranoid about his whereabouts as well as verbally and physically aggressive towards the children. Apparently, she has been focusing quite a bit on the past and talking about the husband lying. When I asked the patient about that, the patient did report that she felt like her husband was lying. She says that he is extremely critical of what she does, and that she does everything wrong, according to him. She says that he wants her to be depressed and wants to take the children away from her. She says that he makes her cry. She says that he has even lied about her being in restraints while in the hospital. The patient denied any hallucinations or ideas of reference. During this assessment, at least, she did not appear particularly paranoid. She denied any suicidal ideation.
[330] Dr. Guimond’s Inpatient Consultation includes a very brief summary of M.M.’s “Past Psychiatric History”, which appears to have been derived from information in Dr. Blicker’s Emergency Consult. It misstates that M.M. “had an ER visit two weeks ago at Scarborough Centenary Hospital”. M.M.’s visit to the Scarborough hospital was a scheduled visit with Dr. Sooriabalan, pursuant to Dr. Komathy’s referral. Dr. Guimond’s summary accurately records that she was taken off Pristiq and put on her current medications. The summary then states, “According to the husband, the patient has since then been psychotic.”
[331] Dr. Guimond’s observations upon a “Mental Status Examination” include that M.M. was calm, pleasant and cooperative, but almost tearful at one point during the interview. She described M.M.’s affect as “only slightly labile.” She observed that M.M.’s speech was “possibly mildly pressured, although not grossly so”, that M.M.’s thought form was “goal directed, although at times possibly somewhat over inclusive”, and that M.M.’s thought content “revealed no evidence of clear-cut delusions, although she did talk about the husband lying.” Dr. Guimond remarked that M.M.’s “judgment and insight were fair.”
[332] Dr. Guimond did not make an immediate diagnosis. She remarked, “I have asked [M.M.] to sign a release of information form so that we can get Dr. Sooriabalan’s notes…. The patient has asked us not to release any information to the husband, but I may call him tomorrow for collateral information.” Dr. Guimond noted that M.M.’s Form-1 was set to expire the next day and that M.M. “does not want to go back to live with [her husband], but that she, upon discharge, wants to go live with family friends.”
[333] M.M. was not released from hospital the next day when her Form-1 expired. A hospital Discharge Summary dated October 12, 2011 documents that her original Form-1 admission to the psychiatric unit was “later changed to a Form-3 under the criteria of risk to others, due to the reported physical aggression toward her children.” K.K. refused to admit, during his cross-examination, that he was the one who reported M.M.’s alleged physical aggression toward the children. He insisted that M.M. made that disclosure herself, though he did not claim to have been present when this occurred.
[334] There is no evidence in any of the hospital records that M.M. ever made such a disclosure. On the contrary, the documentary record establishes that K.K. reported to the emergency department doctor that M.M. had started hitting the children. He also made a similar comment to the EMS paramedics. His disclosures resulted in an extension of M.M.’s involuntary hospitalization based on a concern that she presented a danger of harm to the children. They also resulted in a compulsory report by the hospital to the Toronto CAS.
[335] In M.M.’s Discharge Summary, Dr. Kathleen Bingham noted that M.M.’s husband is a family physician. Dr. Bingham referred to information provided by K.K., including his report that prior to her hospitalization, M.M. was becoming increasingly suspicious of his behaviour. Dr. Bingham cited examples given by K.K., such as M.M. accusing him of trying to monitor her using the fob for their apartment door and of giving her the wrong medication. Dr. Bingham stated, “According to her husband, she was increasingly irritable with the children, including striking them in the face.” Dr. Bingham noted that M.M. “denied being physically aggressive towards her children and stated that all of her difficulties arose due to the husband’s poor treatment of her.”
[336] The portion of the Discharge Summary entitled “Past Psychiatric History” was written almost exclusively based on information supplied by K.K., including the mention of depressive symptoms dating back to her twenties and two overdoses, “one with Gravol and another with lorazepam.[^2]” Even the section entitled “Course in Hospital” included input from K.K.:
On assessment, she was noted to have pressured speech, a tangential thought process and paranoid ideation towards her husband. Collateral information from her husband also revealed evidence of previous manic symptoms including increased talkativity and goal-directed activity. As such, the preliminary diagnosis was bipolar affective disorder, current episode manic.
[337] The Discharge Summary records that M.M. was doing well in the psychiatric unit, presenting as cooperative, eating and sleeping well, and not expressing any suicidal or homicidal ideation. However, it states, “[i]nitially on passes, she continued to exhibit manic behaviour, according to her husband, including increased talkativity, irritability, and increased goal-directed behaviour. For this reason, lithium 300 mg t.i.d. was added to her medication regimen” and the medications prescribed to her by Dr. Sooriabalan were discontinued.
[338] M.M. was educated about bipolar disorder prior to her discharge. The Discharge Summary states that she “exhibited good insight into her previous manic symptoms. However, she continued to endorse some suspicion towards her husband, including the idea that he had disconnected her phone so that she was unable to speak with her relatives and that he had switched her keys.”
[339] M.M. testified at trial about the keys. She said that when she was home, she kept misplacing her apartment keys. She would be certain that she had put them in her handbag but then she would not be able to