



COURT OF APPEAL FOR ONTARIO

CITATION: Lenihan v. Shankar, 2021 ONCA 142

DATE: 20210303

DOCKET: M52203 & M52231 (C68956)

Benotto J.A. (In
    Chambers)

BETWEEN

Kevin William Lenihan

Applicant
(Moving Party on M52203/
Responding Party on M52231)

and

Indira Shankar

Respondent
(Responding Party on M52203/
Moving Party on M52231)

Andrew Chris and Joanna Hunt-Jones, for
    the moving party/responding party

Indira Shankar, acting in person

Heard: February 17
    and 25, 2021

REASONS FOR DECISION

INTRODUCTION

[1]

The applicant, Kevin
    Lenihan, is the father of two-year old M. The respondent, Indira Shankar is the
    mother. They have been involved in high conflict custody litigation for M.s entire
    short life. Ultimately, the trial judge awarded sole custody to Mr. Lenihan and
    the right for him to move to Oregon with M. Ms. Shankar appeals. Mr. Lenihan
    brought a motion for security for costs.

[2]

At the original return
    of the motion, Ms. Shankar indicated that she wanted to file a response, but
    the court office would not accept her material because it was not in the
    correct format. I adjourned the motion to be returned before me and advised the
    motions office to accept her material notwithstanding its deficiencies.

[3]

I have now heard and
    read submissions from both parties.

BACKGROUND

[4]

Mr. Lenihan, an
    American citizen, lives in Oregon where he owns a home near to his parents and
    two brothers. He and Ms. Shankar met in Oregon. Very quickly after their
    meeting, Ms. Shankar moved into his home and they married in June 2017. Ms. Shankar
    is a citizen of India with permanent residence status in Canada. A month after
    their marriage she returned to Canada ostensibly to maintain her permanent
    residence status. The following month, the parties learned that Ms. Shankar was
    pregnant. Mr. Lenihan moved temporarily to Ontario to be with her. Problems in
    the marriage arose and they separated in December 2017.

[5]

In early February 2018 Ms.
    Shankar sent Mr. Lenihan a series of text messages indicating that the baby had
    been born prematurely and was in the neo-natal intensive care unit, breathing
    on a ventilator. These statements were false. M. was born on March 30, 2018.

[6]

M. was born with a
    condition called craniosynostosis. She underwent three corrective surgeries in
    2018 and 2019. The surgeries were successful, and she has no continuing
    disability, although updates will be required from time to time.

[7]

From the day of her
    birth, M. has been at the center of conflict and litigation. Due to allegations
    made by Ms. Shankar, the Childrens Aid Society (CAS) became involved. So too
    did the Office of the Childrens Lawyer (OCL). The CAS and OCL determined
    that the allegations were false. Several family court judges conducted case
    conferences. Finally, the custody trial began on November 17, 2020.

[8]

Mr. Lenihan and
his mother travelled from their home in Oregon
    to Ontario two weeks in advance of the trial to sit out their required
    quarantine period in a local hotel where they maintained their residence
    throughout the proceeding.

THE TRIAL

[9]

The trial lasted for
    four weeks.  The trial judges reasons describe its many challenges.
On the fifth day of trial, Ms. Shankar,
    alleging that Mr. Lenihan was not the biological father, filed the results of a
    paternity test. She then said he was just a sperm donor and filed a Sperm
    Donor Agreement which showed he did not want to be involved with the child.
    She also filed an email exchange between the father and his counsel which
    alleged the planning of a criminal act to remove the mother from the
    litigation. It became evident rather quickly that these documents were  in the
    words of the trial judge  transparent and shocking forgeries created by the
    mother. This was not the only forgery presented by Ms. Shankar. She also
    presented an 18-page affidavit from someone who  upon being called as a
    witness by Mr. Lenihan  said she did not know Ms. Shankar and had never signed
    the affidavit.

[10]

The mothers two counsel 
    her tenth and eleventh  withdrew from the record upon realizing their
    unwitting participation in placing fraudulent evidence before the court. The
    trial judge granted Ms. Shankars request to continue the trial in-person. The
    day was a Friday. It concluded with witness planning, generous directions on
    self-representation and the sorting of details for that evenings weekend
    transfer of M. to her father.

[11]

Thirty hours later, Ms. Shankar
    boarded a plane for Delhi, India, first class, with a transfer from Delhi to
    Bengaluru. She did not inform the court, the father or the child. She did not
    return. Her agent counsel attended on the following Monday, seeking leave for
    the mother to continue with the trial on Zoom from her family home in India.
    The trial judge granted the request and ordered her to provide travel and other
    particulars, including a copy of her return ticket. A return ticket was never
    provided.

[12]

The trial continued until
    December 11, 2020. Ms. Shankar never returned.

[13]

Due to the urgency of the
    situation, the trial judge gave oral reasons at the end of the trial, to be
    followed by more extensive written reasons. She 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 [M.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.

[14]

The trial judge
    dispensed with the requirement of the mothers consent for M. to travel.  She also
    dispensed with the need for the mothers consent to issue a birth certificate,
    passport (both Canadian and American) and any other travel or identifying
    documents necessary for Mr. Lenihans return to Oregon with M.

[15]

As she said she would,
    the trial judge then provided more detailed written reasons reported at 2021
    ONSC 330.

FURTHER REASONS OF
    THE TRIAL JUDGE

[16]

The trial judges
    further reasons examined the extensive evidence and her findings in more
    detail, all with a view to the childs best interests. She
concluded that Ms. Shankars actions were entirely
    inconsistent with the childs best interests. She had taken extreme steps to
    keep the father, the professionals, CAS and the OCL from knowing basic facts.
    She did not name the father on their daughters Statement of Live Birth or
    obtain a birth certificate. She asserted non-existent court Orders to
    professionals and the hospital and ignored Orders that did exist, particularly
    Orders for disclosure. She had a second child but did not disclose the father of
    her second child or his legal name to Mr. Lenihan, the Society, the OCL or the
    Court. She repeatedly threatened the father, his family and CAS workers.

[17]

The trial judge found that
    the mother had virtually no credibility because of her repeated lies and
    attempts at forgery. She was also, according to the trial judge, incapable of
    putting the childs needs before her own. She went to extreme lengths to attack
    the father.

[18]

The trial judge found the
    father caring and competent, attuned to the childs needs and genuinely willing
    to foster the mother-daughter relationship while being appropriately
    protective. Because of the allegations against him by the mother, he was
    extensively investigated by the Toronto and Peel CAS. He has been further
    vetted by a Childrens Lawyer. The OCLs final Report detailed 18 substantive
    allegations that had been made by the mother against the father, all of which were
    determined to be false. The OCL found him to be a fully available and capable
    caregiver. His plan of care is sound and supported by his extended family. He
    offers the child a stable, healthy, and emotionally rich childhood. The trial
    judge said that he built a strong attachment with M. in the face of
    unimaginable adversity. She found that the father will meet the childs
    medical, educational, and emotional needs. She had evidence from a pediatrician
    in Oregon who has agreed to continue the required follow-up for her care. The
    trial judge found that the father was more than a capable parent.

[19]

Against this background
    Mr. Lenihan moves for security for costs of Ms. Shankars appeal.

SECURITY FOR COSTS

[20]

It is rarely
    appropriate to award security for costs in a child-related matter. This is a
    rare case. As the trial judge said:

I say this
    gravely: but for cases of infanticide or abduction, Ms. Shankars actions in
    and outside of this litigation exceed any known to me in the caselaw.

[21]

I turn to the legal principles
    engaged by the motion in the context of these facts.

(1)

Applicable test

[22]

Security for costs may
    be ordered pursuant to r. 61.06(1) of the
Rules of Civil Procedure
, R.R.R.
    1990, Reg. 194, when it appears that:

(a)

There is good reason to
    believe that the appeal is frivolous and vexatious, and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal;

(b)

An order for security
    for costs could be made against the appellant under r. 56.01; or

(c)

For other good reason,
    security for costs should be ordered.

[23]

The overarching
    principle is the justness of the order sought.

(2)

Frivolous and vexatious

[24]

There is good reason to
    believe that the appeal is frivolous and vexatious.

[25]

The appeal is readily
    recognizable as lacking merit and therefore frivolous. The trial judge made
    credibility and factual findings that were strongly supported by the evidence
    and the mothers conduct throughout the proceedings, which I have summarized
    above. In particular, the trial judge carefully considered the childs best
    interests and found that they were best served by being with the father in
    Oregon. Because of the mothers conduct towards the father and his family,
    there was no basis to award joint custody.

[26]

Ms. Shankars appeal raises
    no errors of law. She challenges the trial judges findings of fact and her
    assessments of credibility. As I have set out, the trial judge gave detailed
    reasons for her findings. Under these circumstances there is little chance of
    overturning the result: see
Henderson v. Wright
,
    2016 ONCA 89, 345 O.A.C. 231, at para. 19.

[27]

The mothers conduct
    toward the father throughout has also demonstrated that there is good reason to
    believe that the appeal is vexatious.

[28]

Ms. Shankars motion
    material runs to approximately 160 pages single spaced. In her written and oral
    submissions, she makes outrageous claims against Mr. Lenihan including that he
    has trafficked, abducted, illegally brought the child to the United
    States, and is torturing M. and keeping her in a cage. She says he is a drug
    addict and homeless. She has already reported him to Child Protective Services
    in Oregon. She says that he may sell the child or give her up for adoption.
    She claims that she does not know if the child is alive or dead, then describes
    their regular Skype calls.

[29]

There is clearly good
    reason to believe that the appeal is frivolous and vexatious.

(3)

Insufficient assets in
    Ontario

[30]

Although the mother says
    she has returned to Ontario, her materials contradict this. Her costs
    submissions filed on February 5, 2021 repeatedly assert that she lives in India
    with her family. She states in those submissions that she had no choice but to
    leave Canada. She also claims to have no money.

[31]

During her oral
    submissions, she said she was in Ontario and working for the government. She
    has claimed an income of $95,000 per year. Her last filed financial statement,
    together with her representations throughout the proceedings, indicate that she
    has no assets available to pay the costs of this appeal.

(4)

Other good reason

[32]

There are other good
    reasons to require security for costs.

[33]

First, the mother engaged
    in deceitful and fraudulent conduct as found by the trial judge.

[34]

Second, the child is now
    in Oregon. As the trial judge recognized, future parenting disputes would be addressed
    there.

[35]

Finally, and most
    importantly: this appeal involves the wellbeing of a child who has been the
    subject of litigation her entire life. Her best interests must be considered in
    every step of the proceeding. Her best interests would not be served by a
    continuation of this proceeding. The impact of this litigation on the child
    cannot be ignored. As Poupore J., sitting as an appeal judge of the Divisional
    Court said: security for costs [is] warranted because of the applicants
    motivation for the appeal, the cost to the parties and judicial resources used
    to date and the impact of the litigation on the children:
Morwald-
Benvenides v. Benvenides
, 2017 ONSC 3786, [2017] W.D.F.L. 3729, at para. 13.

MOTHERS MOTION FOR A
    STAY

[36]

Ms. Shankar included in
    her responding material a request that the child be returned to Ontario,
    thereby requesting a stay of proceedings.

[37]

The test for a stay of
    judgment pending appeal is the three-part test set out in
RJR-McDonald Inc.
    v. Canada (Attorney General),
[1994] 1 S.C.R. 311, at p. 334. The
    appellant has the burden to demonstrate that (1) there is a serious question to
    be determined on the appeal; (2) she will suffer irreparable harm if the stay
    is denied; and (3) the balance of convenience favours granting a stay. These
    three criteria are not watertight compartments. The court must decide whether
    the interests of justice call for a stay:
Circuit
    World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677.

[38]

I have already
    described why there is no serious issue to be determined on appeal.

[39]

The child is the one
    who will suffer serious harm. She is in Oregon with her father, grandparents
    and extended family. She has a pediatrician. On the other hand, there is no
    basis to conclude that the mother will suffer serious harm if the stay is not
    granted.

[40]

The balance of
    convenience favours the child remaining in Oregon with his father and his
    family.

[41]

For these reasons, I do
    not require responding material from the father for the mother has not met the
    test for a stay.

CONCLUSION

[42]

The motion by Mr.
    Lenihan for security for costs is granted. Ms. Shankar is required to deposit
    $30,000 to the credit of the appeal by March 30, 2021.

[43]

Ms. Shankars motion
    for a stay pending appeal is dismissed.

[44]

Costs of these motions
    are payable by Ms. Shankar to Mr. Lenihan fixed at $6,500 inclusive of HST and
    disbursements.

M.L.
    Benotto J.A.


