Appeal Court considers stay of custody order in the face of forged evidence
By Georgialee A. Lang
Many family law attorneys enjoy their practices, despite the rigours of high-conflict litigation and often, never-a- dull-moment narratives, but Ontario counsel surely just survived the emotional wear and tear inflicted by a mother in a recent Ontario case.
In Lenihan v. Shankar 2021 ONCA 142, a custody case, the appeal court considered an application brought by a 2-year-old’s father for security for costs of the mother’s appeal and a stay application brought by the mother, who had lost custody in the court below.
The parties met in Oregon in March 2017 and married in June 2017. The mother was a citizen of India, with permanent residence status in Canada, who a month after their nuptials returned to Vancouver to maintain her Canadian immigration status. She then moved to Ontario and her husband followed her, where she advised him she was pregnant. But that news was
not enough to keep the marriage on track, and the parties separated in December 2017, with the father returning to his home in Oregon.
In February 2018 the father received notice from his estranged wife that their child had been born prematurely and was in neo-natal intensive care on a ventilator. That advice turned out to be false; however, the child was born with craniosynostosis, a condition in which one of more of the fibrous sutures in an infant’s skull prematurely fuses into bone, changing the growth pattern of the skull. The child was actually born on March 30, 2018 and several successful operations completely addressed the child’s skull problems with no remaining disability.
From the day of the child’s birth the mother made scurrilous allegations against the father and enlisted the assistance of child protection authorities and Ontario’s Office of the Children’s Lawyer, who both investigated and rejected the mother’s outrageous allegations, including those of sexual and physical assault, that the father wished to “kill the baby;” that he wanted her to have an abortion; that he did not want to pay child support, and many other equally ludicrous claims.
A custody trial began in November 2020 and the father and his mother arrived in Ontario and self- quarantined in a hotel for the required 14 days prior to the commencement of the trial, and where they remained for the four-week trial.
To describe the trial as a “debacle” fails to capture the turmoil created by the child’s mother. It began on day five, when the mother testified that the father was not the child’s biological father and presented a paternity test to the court. She alleged that he was a sperm donor and filed a “Sperm Donor Agreement” in evidence. She also submitted an e-mail exchange between the father and his lawyer which alleged a criminal act to remove the mother from the litigation.
It quickly became apparent that these documents were “transparent and shocking forgeries prepared by the mother.” But they were not the only fraudulent documents. The mother tendered an 18-page affidavit from a person who, when called as a witness by the father, said she did not know the mother and had never signed an affidavit.
At this juncture, the mother’s legal team, notably her tenth and eleventh counsel, withdrew from the record upon realizing their unwitting participation in placing forged evidence before the court.
The court then permitted the mother to continue and self-represent, and set out a schedule and generous advice as to how she could do so, and ordered weekend parenting time for the father.
However, the mother must have realized that the “jig was up,” as she then boarded a plane for Delhi, first class, without notifying her spouse or the court. An agent appeared on her behalf on the following Monday as court reconvened.
The trial judge agreed that the mother could continue the trial on Zoom from India but must provide the court with details of her return travel arrangements to Ontario, including a return ticket. No ticket was produced, and the mother did not return to Ontario; however, the trial continued until Dec. 11, 2020.
On Dec. 11, 2020 the trial judge delivered short oral reasons, with fuller reasons to follow. He said:
“Time is of the essence in this decision. There is a young child who has been living in a hotel for the past 20 days with a father who is a resident of Oregon, and a mother who has left the jurisdiction without a return ticket.
I find that it is in [the child’s] best interest to transfer her residence from Ontario, Canada to Oregon, USA where she will have a stable residence, extended family supports, medical care and a good education. In doing so, I acknowledge that this change in residence will remove this case from Ontario jurisdiction.”
In written reasons handed down on Jan. 14, 2021, the judge described a mother who sent hundreds of abusive, threatening text messages to her spouse; failed to list him as the child’s father on the birth registration; asserted non-existent court orders to professionals and hospitals; ignored legitimate court orders; failed to disclose the existence of another husband and a second child to the father; and threatened the father’s family and child protection case workers.
With respect to the father’s application for security for costs of the appeal, the court remarked that such an award was rare in a child-related matter but noted that “but for cases of infanticide or abductions, Ms. Shankar’s [the mother] actions in and outside of this litigation exceed any known to me in the caselaw.”
The mother, still lacking any insight in her behaviour, filed a stay motion of 160 pages alleging that her husband had “trafficked,” “abducted,” and “tortured” his daughter; describing him as a “drug addict” and “homeless;” and that he would “sell his daughter,” all allegations that were patently absurd. The court ordered that $30,000 be posted as security for costs and dismissed her stay application.
It remains a mystery to right-thinking people how a person can be so consumed with what? Anger or resentment, fear or shame, or is it mental illness? And how can courts address these cases in the context of our adversarial family system of justice? These are difficult questions that lawyers and judges continue to ponder.
**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada.
Lawdiva aka Georgialee Lang