R. v. C.A.S. Date:, 2016 BCPC 162

Citation: R. v. C.A.S. Date: 20160607 2016 BCPC 0162 File No: 56520-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA at Port Coquitlam REGINA v. C.A.S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: Sheryl Wagner Counsel for the Defendant: Patti Stark Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 28 and 29; May 4, 2016 Date of Judgment: June 7, 2016

[ 1 ] The Accused has pleaded guilty to two counts of taking her infant children, S.S. and C.S., in contravention of the custody provisions of custody orders made in Canada in relation to each of them, with the intent to deprive their respective fathers of the possession of each of them, between May 1, 1998 and October 14, 1998. These dates reflect the dates on the Information sworn on October 20, 1998 and the subsequent warrant in the first instance that was issued for the arrest of the Accused.

They do not relate to the ultimate duration of the abduction. [ 2 ] C.S., the daughter and older child, was born [omitted for publication]. S.S., the son and younger child, was born [omitted for publication]. J.S., the father of the son, last saw his child on May 9, 1998. On May 13, 1998 he received a message from the mother’s lawyer saying that the mother, the Accused, was leaving on vacation and that his planned access was cancelled. J.B., the father of the daughter, appeared in Supreme Court on May 21, 1998 for a scheduled custody hearing. The mother did not appear at that hearing.

The last time he saw his daughter was at the end of April 1998. Neither father saw his child again until 2014. Each child had been the subject of acrimonious and protracted custody and access proceedings between the mother and respective father in Supreme Court. [ 3 ] From May 1998 until April 2014, there was no communication with or information provided to either father regarding the whereabouts of their children.

However, in early 2014, the daughter’s likely location was discovered on social media by her father and ultimately, on April 12, 2014, both the children were located in South Carolina where they had been living for some time with the Accused, her third husband and their son. They were returned to Canada by J.B. and his second wife. The children had been gone for nearly 16 years. The accused surrendered herself at the border to Canadian authorities on December 21, 2014.

Background: [ 4 ] The history of the litigation between the Accused and each of the fathers in this matter is included in some detail based on the materials filed at this hearing as it provides important context within which these events unfolded. For convenience, although many of the events overlap, especially in 1997 and 1998, I will deal with them one child at a time and then address the abuse allegations. A. The Daughter, C.S.: [ 5 ] The Accused married J.B. on November 19, 1990. They lived together in Edson, Alberta until their separation in June 1992 when she returned to her parents’ home in Port Coquitlam.

One week later, the accused realized she was pregnant. On initially hearing of the pregnancy, J.B. distanced himself from the Accused commenting, “Have a good life raising her by yourself.” Their daughter, C.S., was born [omitted for publication]. J.B. was allowed to see his daughter for the first time in April 1993. He had not been told of her birth until just before then. Efforts were made to reconcile but the Accused made them conditional on J.B. moving to Port Coquitlam to live in the parent’s home. This was not acceptable to J.B. and on April 6, 1993, the Accused filed for divorce.

J.B. sought ongoing access to C.S., to be exercised when he was in the Port Coquitlam area. He had moved to Clearwater, BC in March 1993. By Order dated May 26, 1993, the Accused received interim custody of their daughter with J.B. having reasonable access including at least two three-hour visits monthly. The parties were divorced March 28, 1994.

J.B. exercised this access as frequently as possible, ordinarily monthly, considering that he lived six hours from his daughter. [ 6 ] J.B. eventually made a request through his lawyer to the Accused, on about September 6, 1997, to have access to his daughter in Clearwater for Thanksgiving weekend in October of that year. The Accused was asked to respond by September 23 rd . When no response was received, further calls were made by both J.B. and his lawyer.

Although messages were left for the Accused, she did not respond until October 8 th , three days before the commencement of the requested access, refusing this access indicating that she and their daughter would be out of town. On November 4, 1997, J.B. filed a Notice of Motion seeking “permanent joint custody and specified access to C.S.”. In his supporting Affidavit, he specifically asked for access to his daughter in Clearwater for a few days per month noting the cost he had undertaken to exercise his access in Port Coquitlam and the unsatisfactory nature of visits in a hotel.

He indicated that the Accused was not in agreement and was in fact insisting that his visits be supervised by her father. Other orders relating to access were also sought including sharing holidays and sharing the travel required for access. [ 7 ] By Affidavit in response, the Accused said that J.B. had missed numerous access visits over the preceding years, sometimes with only very short notice, and that he did not always return her on time at the end of visits.

She also objected to sharing holidays on the basis that she and her parents travelled frequently and that she did not believe her daughter should miss out on these vacations. She also indicated that she did not have the financial means to afford the cost of shared travel for access visits. More importantly, she also requested “limited supervised access, or preferably no access” in order to protect C.S. from sexual abuse by J.B.. She described having had difficulty convincing C.S. (then 4½ years old) to go on visits with her father beginning in August 1997.

C.S.’s primary complaint seems to have been that J.B. paid more attention to his girlfriend than to her during the visits. The Accused then averred that on September 19 th , C.S. disclosed that her father had sexually abused her by fondling her. She then enumerated other apparent disclosures by C.S..

Ultimately, she stated that, “[d]ue to the Respondent’s history of violence…and his sexual abuse of C.S., to protect my daughter I also seek an Order for Permanent Sole Custody of C.S.”. [ 8 ] By Affidavit sworn January 28, 1998, J.B. responded, denying that his visits were irregular and stating that the only period when he missed them was because his vehicle had broken down and he had been unable to replace it for a few months. He denied witnessing any reluctance on the part of his daughter to visit with him in August 1997 or thereafter.

He specifically denied any allegations of sexual abuse including inappropriate touching. He also requested that a Custody and Access Report be ordered. The Affidavit appears to have been presented to the court before it was sworn, because on January 16, 1998, an Order was made for a Custody and Access Report to be prepared by Dr. Monica Angus, with the cost being shared. On February 18, 1998, the matter was set for trial commencing October 19, 1998. [ 9 ] The Notice of Motion from November 4, 1997, was set for hearing May 21, 1998. On that date, the Accused did not attend although her mother was present.

Her absence was not explained to the court. J.B. was granted interim joint custody of C.S. with a police enforcement clause. The matter was adjourned to May 21, 1998 and an Order was made for the personal attendance of the Accused.

[ 10 ] On May 26, 1998, the mother of the Accused, R.S., made her own application to be added as a party to these proceedings to represent her daughter’s interests, to be granted interim sole custody and guardianship of C.S., and to have all access to J.B. cancelled, “to protect C.S. from any further sexual abuse.” In addition, she wanted the report prepared by Dr. Monica Angus to be set aside as null and void. Her reasons are detailed in a lengthy and inflammatory Affidavit in support. [ 11 ] On June 8, 1998, a warrant was issued by the BC Supreme Court for the arrest of the Accused.

The application by R.S. to essentially take over the proceedings for the Accused was dismissed. [ 12 ] On July 13, 1998, the Accused’s lawyer filed a formal withdrawal of solicitor, and also filed a report and affidavit of Jean Richardson, a counsellor who had been retained by the Accused on March 18, 1998 to meet with C.S. regarding the complaint of sexual abuse. Ms. Richardson saw her on three occasions between that date and April 16, 1998. Her report was dated April 22, 1998 and a copy was provided to Dr.

Monica Angus. [ 13 ] Notwithstanding the dismissal of her earlier application, R.S. applied to the Court on July 23 rd , 1998, for copies of all test scores and notes made by Dr. Angus. This application was also dismissed. On August 5, 1998, R.S. commenced a new action seeking full custody of C.S..

According to an Affidavit filed by J.B., R.S. admitted to him that she had been in communication with her daughter and granddaughter, although apparently did not know where they were and she had repeated her request that he withdraw his application for custody of C.S. and simply agree to supervised access. [ 14 ] On September 17, 1998, J.B. filed a Notice of Motion seeking sole custody of C.S., essentially amending his earlier application for joint custody and specified access, in advance of the trial already set for October 19, 1998. [ 15 ] The trial commenced October 19, 1998 and lasted four days.

The accused did not appear nor did anyone on her behalf. Witnesses included several police officers involved in the sexual abuse investigation, Dr. Angus, J.S. (father of the other child), J.B., and a professional access supervisor. J.B. was awarded custody of C.S. and the Accused was granted supervised access, to take place in either Kamloops or Clearwater. The reasons for judgment are detailed below. Of course, this was basically academic as the Accused and C.S. were long gone. B. The Son, S.S.: [ 16 ] On November 4, 1994, about seven months after divorcing J.B., the Accused married J.S..

They lived in the home owned by the Accused’s parents. They separated on October 4, 1995 when the Accused was about five months pregnant. Their son, S.S., was born [omitted for publication]. [ 17 ] According to an Affidavit sworn by the Accused February 1, 1996, the marriage was tempestuous with numerous separations before the final separation. She described an incident on August 25, 1995, when she was three months pregnant, where J.S. picked her up from behind and swung her around during an argument. She said she saw her doctor Dr.

Ewert the next day, who performed various tests including an ultrasound which did not show any damage to the fetus. In a letter dated January 31, 1996, the doctor described the incident as occurring about August 28, 1995 and noted that “there was no need for any treatment apart from symptomatic relief”. The doctor also reported in his letter that the Accused was complaining of a number of stress-related symptoms including being frightened of J.S. and feeling threatened by him. [ 18 ] Following this incident, J.S. agreed to attend counselling and went to several sessions.

However the Accused did not feel that anything was changing, so they separated in October. Starting in November, she came to believe that J.S. was interfering with the mail at her parents’ house. In addition, the perimeter alarm at her parents’ house was activated during the night. She believed those to be the actions of J.S., although there does not appear to be any direct evidence to that effect. [ 19 ] On November 28, 1995, the Accused applied for and received an ex parte restraining order against J.S.. However, it was not entered until January 16, 1996 nor was it served upon J.S. until after that date.

In the meantime, J.S. attempted to contact the Accused by telephone from time to time, unsuccessfully. [ 20 ] On January 5, 1996, J.S. wrote to the Accused’s doctor to inquire about the development of the pregnancy. In that letter, he also acknowledged the incident which he said occurred on August 22, 1995. He described admitting responsibility and meeting with the doctor’s associate in August to obtain advice as well as attending a 24-session program through Share Society, “Ending Violence against Women”. [ 21 ] Once J.S. became aware of the Restraining Order, he immediately applied to have it set aside.

His Notice of Motion was set for first appearance on January 23, 1996, at which time it was set over for hearing on February 8, 1996. It is unclear what happened at that time. [ 22 ] On February 28, 1996, the Accused was granted interim custody of S.S. in Supreme Court with J.S. having supervised access according to a specified schedule.

In addition, a restraining order was put in place by consent prohibiting J.S. from going within 10 blocks of the Accused’s residence except for specified exceptions. [ 23 ] According to an Affidavit of J.S. sworn July 30, 1996, the parties began getting along better in March and early April of 1996, and he had more frequent visits with S.S., some even including his step-daughter, C.S.. This lasted until about mid-April when the Accused began cancelling the court-ordered visits to S.S. and refused to allow C.S. to be included in the visits.

In mid-May, she unilaterally reduced the visits to one per week from the two that were ordered, cancelling the visits that were to be at the home of J.S.’s mother. [ 24 ] According to J.S., matters deteriorated considerably over the next several months resulting in numerous confrontations between the Accused and J.S., often instigated by the Accused or her mother. As an example, during an access visit in May held at Coquitlam Centre Mall at the Accused’s suggestion, S.S. began to cry. When J.S. did not immediately turn him over to the Accused, she began pulling at her son then reached into her purse.

Unsure as to what was happening, J.S. released him. As he was doing so, the Accused

pulled out a canister of pepper spray saying she would “use it”. [ 25 ] In June, the Accused began to insist that all visits be professionally supervised. The supervision contract required that they each pay a nominal fee unless ordered otherwise. Within a few weeks, she stopped making her share of the payments resulting in the visits being cancelled.

Accordingly, J.S. applied to have the restraining order and the necessity of supervision during access set aside. [ 26 ] On August 28, 1996, in Supreme Court, the restraining order was varied to reduce the restricted area to the Accused’s residence only, rather than a radius of ten blocks, to include no contact with C.S., and to restrict communication to certain access matters only.

Access was to be twice a week, for two hours and three hours respectively, supervised by someone approved of by the Accused. [ 27 ] On November 4, 1996, J.S. filed another Notice of Motion to cancel supervised access, among other orders sought. In his Affidavit filed that date, he noted that almost immediately after the August 28 th order, the visits were missed because the Accused had not actually confirmed any supervisors and when they went ahead as scheduled, she unilaterally shortened them.

Within a few weeks, she reduced the three-hour visit to two hours, then on September 27 th , she purported to cancel them entirely. On October 2 nd , at the Early Intervention Hearing, she was ordered by Dillon J to continue the visits as ordered in August. Nonetheless the visits continued to be interfered with, most notably by her refusing to cooperate with some of the people she had selected who had agreed to supervise and by her distributing to some of them, flyers showing J.S.’s photograph with a series of police file numbers and policemen’s names handwritten on the page.

Despite having been told in court in August that a professional supervisor was not required, she then insisted on only allowing professionally supervised visits. [ 28 ] In an Affidavit sworn November 6, 1996 by the Accused, she explained that because of an increasing reluctance on the part of family friends to be involved in the access supervision, she believed a professional supervisor would be a better alternative. She continued to believe that J.S. would harass her if there was no restraining order and stated that she found “his continual attempts to contact [her] or push the limits of any order stressful”.

Accordingly she did not want any changes made to the access

schedule other than to allow her some uninterrupted time to take holidays. [ 29 ] On November 8, in an Affidavit filed in reply, J.S. indicated he had been taking a parenting course and was seeking longer, unsupervised visits. Ironically in retrospect, he also mentioned, “The Petitioner has no basis to claim she’s worried about my doing harm to S.S., or not returning him to her, except from the reports she hears of the conduct of other fathers in the media. From her previous marriage, the Petitioner had saved newspaper clippings of some men that had kidnapped, or done harm to their children.

She had them saved in her “[J.B.]-file’. She brought the ‘[J.B.]-file’ with her when we interviewed lawyers. Many of the accusations she’s claimed about me, she had claimed about her ex-husband [J.B.].” In the balance of the Affidavit, J.S. refutes all the allegations of harassing and stalking behaviour and assaultive behaviour. [ 30 ] On November 26, 1996, the parties were divorced. [ 31 ] On December 3, 1996, the Notice of Motion was adjourned and the parties were ordered into mediation at the Accused’s request. This was scheduled before Roger Nadarajan, a very experienced Family Justice Counsellor.

According to an Affidavit sworn by J.S. on January 30, 1997, after four sessions, the sole change in access was to extend the 2-hour visit to 2½ hours; the 3-hour visit would remain the same. There was no movement on supervision. Much of the time in mediation was spent on the Accused’s car insurance instead of access. Throughout this time the scheduling of visits continued to be a struggle. [ 32 ] The Accused responded to this Affidavit with one of her own, also sworn January 30, 1997. She noted that she had also agreed to having J.S.’s mother supervise the visits.

She was not prepared to consider more visits or changes in access and supervision without having an independent investigation done by a Family Court Counsellor, being a Custody and Access Report. [ 33 ] On February 4, 1997, Hutchinson J ordered a written report be prepared by Mr. Nadarajan, including a response to a particular paragraph in the Accused’s Affidavit. That report was prepared dated March 10, 1997. In it, Mr. Nadarajan described the four sessions he had with the parties, noting that the subject of child access became more contentious as the sessions progressed.

He observed that when J.S. became frustrated, he did so visibly, turning red and appearing angry. The Accused would remain calm, apparently not reacting. Mr. Nadarajan responded as requested to the description of the particular incident described by the Accused wherein she had said, “Unfortunately, the Respondent [J.S.] lost his temper on the last day (January 9, 1997) shouted at me, jumped up, raised his fist over his head and stomped his feet when I told him I was not willing to consider more days per week. I became nervous and did not want to continue mediation.” In his report Mr.

Nadarajan stated that during the January 9, 1997 session, “[J.S.] lamented about how intimate they were in the past and regretted that it all should end up in divorce and how he had to fight for accessing his son. He pointed out that she is using the access as a leverage to assert her power in the same manner she is using the restraining order. He seemed to be upset. He stood up from his chair, took off his jacket, hung it on the back of the chair and sat down. Once again he showed frustration. [The Accused] was quiet.” There is no mention of shouting, jumping, raising his fist or stomping. [ 34 ] Mr.

Nadarajan also noted that, “During the session it became apparent that the party who really despises him is his mother-in-law. From my observation both the Accused and J.S. did not seem to have any difficulty relating to each other. The information I gathered from the meeting is that in the past they have privately met with each other and talked on the phone. The [Accused] would tell her mother that she was grocery shopping when in actual fact she met with [J.S.] who would buy her groceries. [J.S.] brought this out during our meeting due to his

frustration. He felt the restraining order did not have any relevance except impeding his natural access to his son.” The Accused cancelled the mediation after the fourth session. Mr. Nadarajan opined, “My opinion is that [J.S.]’’ strength lies in his persistence to gain access to his son. However his frustration is easily noticeable by the increase in his blood pressure, revealed by the changes in the skin colour. Unfortunately because of his persistence he is often looked upon by others as an irritant. [The Accused] knowingly or unknowingly is using the access as a leverage to get things done her way.

She is articulate and possibly able to cover all her intentions by portraying them as in the best interest of the child. I am of the opinion that the restraining order is an impediment to the free flow of exchanging the child between the parents. I do not believe that [the Accused] is really frightened of [J.S.], for I understand they met not long after the restraining order was in place .” (Emphasis added) [ 35 ] Mr.

Nadarajan’s recommendations were that the restraining order be removed and that J.S. have access to the child twice a week for 3 hours and 6 hours respectively, the times and days as set out. [ 36 ] J.S.’s Notice of Motion was reset for April 21, 1997. Additional Affidavits were filed leaving practically every issue in dispute with widely varying descriptions of the same events included. As a result of Mr. Nadarajan’s report, [The Accused] agreed to increase access to the 3 hour and 6 hour visits recommended, unsupervised, the longer period being introduced a half-hour every two weeks.

Of note, attached to the Accused’s Affidavit sworn April 17, 1997 is an Affidavit sworn by J.B., the daughter’s father, on February 4, 1996 (more than a year earlier) describing the good relationship that he had with the Accused in arranging access to his daughter. Of course, that fell apart in August 1997. [ 37 ] In a decision dated April 28, 1997, Morrison J noted that, “The petitioner has to learn to trust the respondent as a parent, and to give him credit for nurturing his child, and for wanting to be a fully involved parent, as he undoubtedly wishes to be.

The respondent has to back off the behaviour that keeps his former wife off balance.” She also stated, “At the hearing, the respondent, who acted on his own behalf, seemed to be saying that there would be no more intimidating behaviour on his

part if the petitioner agreed to or the court lifted the restraining order. But at the same time, he expressed his view that this battle over the child would go on in the courts for the next 18 years. In some measure, it will be up to him to ensure [S.S.] and his mother are not put through such an ordeal. I think it is appropriate and so order that a s. 15 report on custody and access be prepared. But I am hopeful that the process of the report will confirm that these two parties are able to work out access without having to resort to the courts.” Access was varied and increased.

In addition, the restraining order was removed. In so doing, Morrison J commented, “I am hopeful that [seeking another restraining order] will not be necessary, that both parents will be putting the welfare of the child above their own needs to control the behaviour of one another.” [ 38 ] The matter returned to court on October 19, 1997 with J.S. seeking a finding of contempt against the Accused for not complying with the access orders and withholding access.

The Court noted that neither party had followed the access regimes outlined in the orders and “that neither party appear[ed] to understand the import of a court order”. Accordingly, the application was dismissed but both parties were implored to follow the orders for specified access. [ 39 ] The next day, on October 20, 1997, the Accused went to court and obtained an ex parte restraining order against J.S.. [ 40 ] On October 24, 1997, J.S. was arrested for allegedly breaching this order and was released from custody on his own recognizance on October 27, 1997, to return to court October 31 st .

On that date, the matter was adjourned to November 25, 1997. According to an Affidavit of J.S., he was arrested on October 24, 1997 while in the vicinity of but not on the Accused’s family property in order to facilitate the exchange of his son for his access visit. Apparently the Accused insisted on the exchange taking place with the assistance of a third party, although there was no court order to that effect at that time. Assorted allegations were made against him which he denied.

As a result he missed his visit and spent 2 nights in jail. [ 41 ] On November 25, 1997, in a hearing before Oppal, J, the exchanges were ordered to be made on one day by a third party picking up the child at his house, and, on the other day, by another third party delivering the child to a local Tim Hortons. The contempt application against J.S. was adjourned generally and the restraining order of October 20, 1997 was left in effect. [ 42 ] On January 29, 1998, just after midnight, the son, S.S., was apprehended by the Ministry of Children and Families as the result of an injury he had received to his face.

This will be detailed below. He was then placed in foster care. At the time, the Accused blamed J.S. for the injury although it was J.S. who had reported it to the police. S.S. was placed in foster care as the Ministry suspected that the Accused had caused the injury and she was the custodial parent.

On February 25, 1998, after many denials, the Accused eventually admitted in a statement to police that in fact she had caused the injury. [ 43 ] During and immediately after the apprehension, on January 28, 30 and 31, 1998, the Accused left several messages for J.S. proposing that they work cooperatively to address their problems, to have S.S. returned from foster care and to organize scheduling their access to him.

The tone and words in the messages did not suggest any stress or fear on her part towards J.S.. [ 44 ] On or about February 21, 1998, J.S. was again arrested for an alleged breach of the restraining order and on criminal charges relating to events at the time of his arrest. He was released on bail for the criminal charges but was remanded in custody until February 27, 1998 on the alleged breach of restraining order, at which time he was released on an undertaking six days after his arrest. He was also ordered to sign consents for the release of medical, psychiatric and psychological records.

The allegations arose from an incident between J.S. and the Accused’s father on February 21, 1998 when they met seemingly by chance in another neighbourhood. J.S. tried to speak with the father about having the Accused agree to joint custody on the basis that the Accused had caused the injury to S.S. and had lied about it. He hoped that S.S. could be removed from foster care and placed in his care. However matters between them rapidly

deteriorated. As it turned out, the Accused was in her father’s car unbeknownst to J.S.. They reported the incident to the police. Later that day at J.S.’s residence, the arrest did not go smoothly and J.S. was charged with assaulting a peace officer and escaping lawful custody. He eventually pleaded guilty to the escape receiving an absolute discharge.

The assault charge was stayed. [ 45 ] In addition to these specific events, between December 1995 and September 1998, the Accused or a member of her immediate family including her mother, father and brother, contacted the local RCMP numerous times to complain about J.S.. These complaints ranged from prowling, stalking, violating a restraining order, assault and mischief, to harassment and other matters. Of the eighteen complaints listed in the Agreed Statement of Facts, only two resulted in an arrest. The first of those arose February 21, 1998 and is described above.

The second occurred August 15, 1998, after the abduction, when he was arrested for breaching a Supreme Court restraining order. He was released on an Undertaking on August 17, 1998, and the matter was adjourned to Justice Dillon on September 8, 1998. It was dismissed at that time. [ 46 ] In addition to those reports, on October 15, 1997, the brother of the Accused reported to police that he had been assaulted by J.S.. Following a police investigation, the police determined that in fact the brother had been the aggressor and no further action was taken.

Nonetheless, this incident was used by the Accused to bolster her request for the ex parte restraining order ultimately made on October 20, 1997. [ 47 ] On March 10, 1998, an interim custody order was made in the protection proceedings with respect to S.S.. This was followed by a 3-month supervision order on April 28, 1998 returning S.S. to the Accused subject to certain conditions.

Those conditions included the Accused allowing the Director access to her home during this period to ensure the safety and wellbeing of the child, to meet regularly with a social worker, to take personal counselling, to attend parenting courses and to provide the Director with access to her medical and counselling records. S.S. was returned to his mother on April 29, 1998. [ 48 ] Numerous other affidavits were filed by both parties in anticipation of the hearings for custody and access issues and contempt matters. There was very little common ground between them.

On April 24, 1998, a two day hearing on the allegations of contempt from February, 1998, was set for May 19 and 20, 1998, before Dillon J. Counsel for the Accused filed a Trial Certificate on April 27, 1998. [ 49 ] On May 11, 1998, the custody and access matter was adjourned for the purpose of setting a trial date and appointing a Case Manager. The Accused was not present at the hearing.

J.S. received a call from the Accused’s lawyer on May 13, 1998 advising him that the Accused had cancelled his visit scheduled for that day as the Accused had left on vacation. [ 50 ] On May 20, 1998, after two days of hearing before Dillon J., with the Accused appearing by counsel but not in person, the contempt trial was adjourned to September 8, 1998. Counsel withdrew from the record on July 7, 1998. [ 51 ] On July 20, 1998, a warrant was issued for the arrest of the Accused on the matter regarding S.S.. In addition, interim custody of S.S. was awarded to J.S. with supervised access to the Accused.

The order included a police enforcement clause to apprehend the child and deliver him to J.S.. [ 52 ] On September 8, 1998, Dillon J found that she had reasonable doubt with respect to all allegations of contempt made against J.S. and they were dismissed. She terminated the restraining order made October 20, 1997. The Accused was ordered to appear before the court on September 21, 1998. In addition, a warrant was authorized for her arrest.

In her reasons for judgment, Dillon J. specifically rejected the evidence of the Accused’s mother, noting she “was obviously biased and made assumptions about events without factual foundation.

She interposed herself in a situation which was already fraught with tension, alleging that she feared for her safety when she did not secure any other family members around her and I find her unbelievable on that point.” She continued, “She also testified before this court in May of 1998 that she had no idea where her daughter and grandson are, and also told this court that she had no intention of facilitating access as ordered by this court unless the

schedule proposed fit with her timetable.” [ 53 ] Dillon J also found, “The petitioner and the child of the marriage were living at the home of [R.S.] prior to their disappearance at the time of this hearing in May of 1998. It is apparent from the evidence of [R.S.] the she and the petitioner acted together to hide the circumstances of the petitioner hitting the child which resulted eventually in intervention by social services and removal of the child from the home.

It was apparent that [R.S.] knowingly allowed the respondent to be accused of this act.” Abuse Allegations: [ 54 ] During the course of these proceedings, the Accused made separate allegations of abuse against each of the fathers. In the case of the daughter, C.S., the allegations were of sexual abuse by her father beginning in September 1997; in the case of the son, SS, the allegations were of physical abuse by his father in January 1998. A.

Sexual Abuse of C.S.: [ 55 ] The sexual abuse allegations first arose in September 1997 during a time when the Accused stated that C.S. was becoming increasingly reluctant to spend time with her father. The Ministry became involved in early October 1997. According to the Accused, C.S. made disclosures to numerous persons over the course of the next several months. The Accused reported this to the RCMP in early October 1997 and on October 8 th , Cst. Stuart was assigned to be the primary investigator. Cst.

Stuart contacted the Ministry of Children and Families and spoke with a social worker who indicated that their investigation had been inconclusive but that C.S. had been referred to counselling at Act II. The assessment from the counselling concluded that C.S. had stated that she did not like J.B. and that he touched her private parts and that it hurt her. [ 56 ] Cst. Stuart interviewed C.S. on October 9, 1997.

During the interview, C.S. said, “[J.B.] touched my privates…with a stick….He just slap it with me…slapped it on me.” It is evident from other parts of the transcript that she had difficulty distinguishing between truth and lies. Soon after, Cst. Stuart closed the police file and did not recommend charges. A week later Cst. Stuart was called by the Accused. When she returned the call, she spoke with [R.S.] who said she, [R.S.], had interviewed C.S. and had audio taped her statement. Accordingly, Cst. Stuart reinterviewed C.S. on November 3 rd ; no further disclosure was made. On January 14, 1998, the

Accused again contacted Cst. Stuart to advise that C.S. had made disclosures to her Act II counsellor. The Constable spoke with the counsellor and asked her to keep her informed. On January 22 nd , the Accused yet again contacted Cst. Stuart regarding a further disclosure, indicating that C.S. was ready to speak to Cst. Stuart. Because C.S. was in counselling, it was decided to take no further action at that time. Further calls were made by the Accused and her mother [R.S.] in April to Cst. Stuart regarding further disclosures and advising the name of the new counsellor, Jean Richardson. Cst. Stuart spoke with the counsellor. However, given all the interviewing of C.S. occurring for the

section 15 reports and the ongoing family court proceedings, she did not

schedule a further interview at that time. [ 57 ] Finally on May 5, 1998, the Accused’s brother brought C.S. to Cst. Stuart for yet another interview. From the preliminary questions, it was evident that C.S. had a better appreciation of the difference between truth and lies. In the interview it was also clear that she referred to her maternal grandfather as her dad, and referred to her actual father by his first name. When asked why she was there, she said that she “had to talk about something…about [J.B.]”.

She then said, “He put his penis in my mouth….He did it two times….That was a little while ago…It was only once.” A little later she was asked if she wanted to tell anything else about [J.B.] and she replied, “He’s supposed to buy me a nice treat.” She then corrected that to “mommy”, and when asked why she would get a treat, she replied, “Because I talked to someone”. She was asked sometime later if what she said about J.B. was a lie or the truth. She replied, “A lie”. A little later she was again asked if what she had said about J.B. was a lie or the truth. She again replied, “A lie”.

She was next asked, “Did somebody tell you to say that to me?” and she said, “Yeah”. She was asked, “Who told you to tell me that?”, and C.S. asked the Constable, “You’re talking quiet, why?” The Constable replied, “Because we’re talking quiet. Who told you to tell me those things about [J.B.]?” C.S. did not reply and went on to other subjects. A short time later there was the following exchange: Q. …So [C.S.] do you know why it was that you were told to tell me that? A. Yeah Q. Why was it? A. Because Q. Because your mommy told you to tell me that? A. Yeah. Q. Okay. And those things didn’t really happen? A.

My eyes are hurting. Q. Oh are they? A. Yeah. Q. Are they getting wet? … (just before leaving) Q. …So I’m going to ask you another question, okay? A. I don’t want to. Q. You don’t want to? Okay. Because you don’t want to tell me a lie do you? Okay. So when you said that about [J.B.], that [J.B.] put his penis in your mouth is that a lie? A. Lie Q. It’s a lie? Okay. Alright sweetheart. Okay well we’re going to stop the interview here. The interview ended at this time. [ 58 ] I will note here that Counsel for the Accused has argued that the statements made to Cst.

Stuart that day when considered as a whole are ambiguous and should not be relied upon. I do not share that view although I am conscious of the leading nature of at least one of the questions in determining the weight to be given to the answers. [ 59 ] No charges were forwarded to Crown Counsel and the Accused was advised of this on May 6, 1998. In a meeting with the Accused the following day, Cst. Stuart discussed the reasons for not recommending charges. The Ministry and J.B.’s lawyer were also advised of the status of the investigation.

These allegations had been denied throughout by J.B.. [ 60 ] Jean Richardson, a family therapist, was consulted by the Accused with respect to these allegations on March 18, 1998. She met with C.S. for three sessions, the last on April 16 th . In her report dated April 22, 1998, she said that near the end of the second session on March 25 th , “[C.S.] came up close to me and said softly, ‘[J.B.] touched my privates”. She was asked to say it again, and she did.

During the third session, C.S. approached her and said, “[J.B.] did something to me the last week. [short pause] He put his penis in my mouth and made me suck on it.” Ms. Richardson also described other interactions that she had with C.S. but no other disclosures. [ 61 ] Dr. Monica Angus met with the Accused, J.B. and C.S. during the week of April 20, 1998 for the preparation of her report.

These several and lengthy meetings included interviews and psychological testing. During this time, C.S. was seen both with her mother as well as alone. C.S. refused to see her father, J.B.. Although requested to do so, the Accused failed to return for a second meeting to finish the testing and interview, and her mother, R.S., also did not return after a very brief initial meeting with Dr. Angus. The Accused failed to provide written consent for the release of the counselling records from Act II despite a court order so they were not available to Dr. Angus.

She was given copies of numerous orders and affidavits, documents surrounding the apprehension of S.S., 36 pages of accounts and disclosures of C.S. written by the Accused and her mother R.S., and the report mentioned above from Jean Richardson. [ 62 ] In the time Dr. Angus spent with the Accused, she provided a brief personal history.

Notably there were several significant omissions in her history including any reference to her son, SS, being in care at the time of their meeting, that she had alleged that the injury to S.S. had been caused by his father, and that they also had an ongoing custody and access dispute. She completed three psychological tests and did not return to complete the fourth. Of the three completed, two included validity scales which indicated that the results were invalid as the result of a very high level of defensiveness in the responses. [ 63 ] Dr. Angus met with C.S. three times in the preparation of her report.

During C.S.’s time with Dr. Angus while the Accused was present, after naming her friends when asked, C.S. approached Dr. Angus and stated, “[J.B.] touched my privates.” This was said without emotion or distress. Dr. Angus asked her, “Did somebody tell you to tell me that?” and C.S. replied, “Yes, my Granny.” They then spoke of other matters, and C.S. again approached Dr. Angus, stating, “[J.B.] put his penis in my mouth.” She was asked who told her to say that, and she replied, “My Mommy”. The Accused telephoned Dr.

Angus after the appointment to tell her that she had not told her daughter to say that, but had encouraged her to speak out about what had happened to her. [ 64 ] During her second visit with Dr. Angus, C.S. played unconcernedly with anatomically correct dolls and made no disclosures. In contrast with the dark pictures she drew for Ms. Richardson, her pictures were happy and brightly coloured other than one apparently depicting her grandmother being sad. Other observations and conclusions of Ms. Richardson contrasted sharply with Dr.

Angus’ observations. [ 65 ] Near the end of the third visit when asked why she did not want to see J.B., C.S. replied, “Cause he is touching my privates.” She added, “that her Mummy told her he was and so did her Nana and Papa”. [ 66 ] Dr. Angus also spoke with Cst. Stuart during the preparation of her report. Cst Stuart advised her of her uneasiness with regard to the credibility of the complaint including the ultimate admission that by C.S. that she had lied.

In addition, she stated that disclosure was only made to her after repeated interviews and the reported allegations increased in terms of severity over time culminating in oral sex. She also advised Dr. Angus that she had requested that the Accused take C.S. for a medical examination but she had failed to do so. [ 67 ] In her report, Dr. Angus found J.B. to be the parent of choice for C.S. although she noted the lack of emotional bond. She added, “I have seen pictures taken as recently [as] December of 1997 of a smiling [C.S.] in the arms of her father.

If the [Accused and her family] cease their campaign to discredit [J.B.] in the eyes of the child, and if [J.B.’s] week-end access to the child is increased, [C.S.] will once again be happy and content in the company of her father. In time, [J.B.] should have the child in his care for longer periods.” She also noted: “Given [C.S.’s] cognitive delay, the fact that she is of pre-school age, and her attachment to her mother and grandmother, the statements which she has made regarding sexual activities with her father are understandable, but not credible.

The child’s statements are contradictory and her demeanour when she makes a disclosure statement leaves the clear impression that she has been rehearsed. This

interpretation becomes even more compelling when the child says that her mother and grandmother have told her to tell the Examiner that her father has interfered with her.” [ 68 ] Dr. Angus added: “It is also important that [the Accused] not be permitted to isolate herself and her children within her tightly knit family group, where child rearing practices can be concealed from her children’s fathers and the wider community. The cohesion with which the [Accused’s] family functions can be as much a risk to the children as it can be a support.” [ 69 ] Dr.

Angus’ recommendations made in May 1998, were that the father, J.B., should have custody of the daughter, C.S.; however, his actual care of her would be increased only gradually to permit the daughter to bond with him. In addition, it was her opinion that the complaints of sexual abuse were false and induced by the mother and maternal grandmother. [ 70 ] A custody trial with regard to C.S. was held in October 1998 before Shaw, J.

After hearing the evidence presented over four days which included hearing from the two fathers but with no one appearing for the Accused, he granted sole custody of C.S. to her father, J.B., and also made an order for costs of $31,939.96 against the Accused.

That amount remains unpaid. [ 71 ] In his Reasons for Judgment, Shaw J made the following observations: [1] …From the facts set out below, I infer that the mother has hidden herself and her children out of fear that she may lose control of her children in the proceeding concerning her daughter and in a separate action in respect of her son. [2] I also infer that the mother left out of fear of the consequences of having made false allegations of sexual abuse and physical abuse by the fathers of the two children…. [6] …Constable Stewart [the RCMP investigator] harboured suspicions regarding the sexual abuse allegations and her suspicions were confirmed when C.S. admitted that she had been told by her mother to state what her father did to her and for this, she would receive a treat, and stated to Constable Stewart several times that what she had said her father did to her was a lie.

C.S. also made similar admissions at an earlier interview with Dr. Angus.

[10] In her reasons for judgment Madam Justice Dillon said this: The petitioner [the Accused] and the child of the marriage [S.S.] were living at the home of [R.S.] prior to their disappearance at the time of this hearing in May of 1998.

It is apparent from the evidence of [R.S.] that she and the petitioner acted together to hide the circumstances of the petitioner hitting the child which resulted eventually in intervention by Social Services and removing the child from the home…. [11] The evidence before me supports the foregoing finding of fact and I adopt it as a finding of fact in these proceedings. [13] There are strong parallels between [the Accused’s] conduct vis-a-vis [J.B.] and [C.S.], on the one hand, and [J.S.] and [SS], on the other, such that the [S.S.] case sheds light upon [the Accused’s] intention in the present case.

In each situation, the marriage was short, less than two years. In each case, [the Accused] left the marriage within a short time after becoming pregnant. In both cases, she and her mother resorted to damning falsehoods against the fathers. This was done in conjunction with trying to eliminate access by the fathers to their children as much as possible. The intention I draw from all the evidence, including the disappearance of [the Accused] with the two children, is that she intends to put an end to any relationships that the fathers have with their children. [18] [Dr.

Angus’ opinion in her report that J.B. have custody of C.S. with [the Accused] having primary care] was formulated before Dr. Angus was aware that [the Accused] had disappeared with [C.S.] and [S.S.]. Because of the disappearance, Dr. Angus is now of the view that it is in the best interests of [C.S.] that [J.B.] have full custody of [C.S.], with supervised access only to [the Accused]. Dr. Angus testified that it is not in the best interests of [C.S.] that she grow up with the belief that her father is a sexual abuser. Dr.

Angus says that if [C.S.] stays with her mother, she will be at risk of becoming the kind of person that her mother has shown herself to be…. [19] Dr. Angus appreciates that [C.S.] has thus far bonded much more to her mother and her maternal grandparents than to [J.B.], and that she will suffer significant separation anxiety if she is taken from her mother and placed with her father. Dr. Angus has weighed this relatively short term detriment to [C.S.] with the long term harm that will be caused by staying with her mother.

In evaluating the evidence before me, I accept the conclusions set out above by Justice Shaw. B. Physical Abuse of S.S.: [ 72 ] The allegations of physical abuse of S.S. arose following an exchange for an access visit on January 28, 1998. J.S.’ mother facilitated the exchange by picking up S.S. from the Accused’s home to take him to his father, J.S.. When the Accused turned him over to her, she told the grandmother that the boy had fallen from his bed and taken his nap sleeping on the rug on the floor, and that the red mark on his cheek was the result of rug burn.

The grandmother brought the boy to his father who, upon seeing the mark and fearful of this being used somehow against him, decided to take him to his own doctor. On the way he passed a community police station so he took the boy inside to have them look into it. The police took some photos and called the Ministry. He was directed to Eagle Ridge Hospital where he met an after-hours social worker and a doctor. The doctor indicated that the mark was not consistent with rug burn. The social worker called the Accused from the hospital.

She said she had found the boy sleeping on the floor and that she had put some ointment on what she believed to be rug burn. When told that the doctor said the injury was inconsistent with a rug burn, she denied striking the boy and insisted that she was only aware of a rug burn. When interviewed in person by the social worker that evening, she suggested that perhaps J.S. had caused the injury after the exchange that day.

The social worker returned the child to the Accused after the father’s access visit had ended. [ 73 ] About an hour later, the same social worker received another call through the After-Hours number, this time from a doctor at Royal Columbian Hospital stating that the Accused and her mother had just taken the boy to the hospital alleging that the father, J.S., had injured the son by slapping him. They had mentioned nothing about the previous hospital visit at Eagle Ridge that same evening.

By the time the social worker saw the boy this time, the red mark had developed more clearly into what appeared to be a hand print.

The social worker was of the opinion that the injury occurred while the child was in the mother’s care given the history of the evening and the actions taken by the father almost immediately after receiving the boy into his care. [ 74 ] As a result of these circumstances, the child was apprehended in the early morning and placed in the interim custody of the Director where he remained until a three-month Supervision Order was made on April 28, 1998, returning him to his mother the next day.

It goes without saying that the terms of the Supervision Order were defeated with the Accused’s departure shortly after the order was made. [ 75 ] On February 25, 1998, Cst. Sanford of the RCMP met with the Accused for the purpose of obtaining a statement. She was the same police officer who had dealt with the complaint on January 28 th and who had spoken to the Accused on that evening. The Accused provided her with an already prepared signed typed statement outlining the events of January 28 th .

In that statement she stated that she told the social workers at the time that, “I did not strike or hit [S.S.]; I did not cause his injury; I would never, never do anything like that. I love and cherish my children.” She also added that after being contacted by the social worker on the evening of January 28 th , that she had called the police to find out what was going on, saying, “I told them that I was being accused of hurting [S.S.]. I told them I never touched [S.S.] and that [J.S.] had been at the Police Station.” [ 76 ] Cst. Sanford then took a warned statement from the Accused.

She was neither under arrest nor detained at the time. The Accused described that [S.S.]’s face was red when she picked him up from the floor where he had taken his nap. She repeatedly maintained that she had not intentionally hurt her child. After some time, the constable asked her: Q. Did you backhand him? A. I wouldn’t hurt my child.

Q. Did you slap him with an open hand? What happened? A. He bit me. Q. So you hit him. A. (nod up and down - indicating yes) Q. Has he bit you before? A. Yes while breast feeding, but I got him off. Q. What happened this time? A. I couldn’t get him off. Q. So this happened when breast feeding? A. No I would never hurt my child. Q. Okay when did this occur? [Cst. noted black mark on nail of her left index finger] A. When I was putting him down for his nap. Q. Do you remember how many times you slapped him to get him to let go? A. He was hanging on to my hand. Q. Did you strike him more than twice? A. I don’t know.

I would never intentionally hurt my children. Q. What were you thinking when he bit you? A. Pain. Q. Did you yell at him to let go? A. I was holding my hand, asking him to let go. Pulling my hand away. Q. Did he let go? A. No. Q. What did you do? A. I have never injured a child. Q. You have, you slapped him. A. (quiet voice) Yeah. Q. Did you realize how many times you slapped him to get him to let go? A. No. [ 77 ] In addition, in an Affidavit sworn April 19, 1998, the Accused admitted she had lied when she denied striking her son on the face describing instead a “rug burn”.

She went on to state that she slapped him after he had started to bite her finger which was in his mouth and she was having difficulty removing it. She justified her lie by indicating that she did not think her slap could have caused the injury seen by the police and at the hospital. [ 78 ] The

Section 15 report regarding S.S. was prepared June 4, 1998. Its preparation had been suspended during the time the son was in foster care. Efforts made by the Family Justice Counsellor to have further meetings with the Accused after the return of the child to her care were unsuccessful, given that she had left the jurisdiction. Given the absence of the mother and children, the Family Justice Counsellor recommended sole custody to the father, J.S., with professionally supervised access to the Accused.

Events After the Abduction: [ 79 ] On June 8, 1998, the RCMP were provided with a copy of the arrest warrant issued in the Supreme Court proceedings regarding the daughter, C.S.. On September 4, 1998, J.S. made a formal complaint of child abduction with regard to both children. A report was forwarded to Crown Counsel two weeks later and charges were sworn on October 20, 1998.

A Canada-wide warrant was issued and remained outstanding until the Accused’s arrest at the Canadian border on December 21, 2014. [ 80 ] During the intervening period, extensive efforts were undertaken by the RCMP in collaboration with the Missing Children

Society of Canada (MSCS). The police discovered that the Accused’s credit union account had been accessed after her departure and her Child Tax Credits had been deposited into an account held by the Accused’s mother, R.S., until about July 1999. Enquiries were made using CPIC, other government and police data bases, postal security, and child welfare agencies across Canada. Judicial authorizations were obtained to trace telephone numbers related to the grandparents’ residence. These suggested a link to Germany so Interpol was asked to assist. In 2002, a search warrant was obtained to seize R.S.’s work emails.

Both fathers were active in following up or developing other leads and sharing that information with the RCMP and MSCS. Various American and international agencies were asked to assist. Photographs of the two children were digitally enhanced to make them age appropriate and were circulated around the world. J.B. wanted to hire a private detective but it was simply cost prohibitive. [ 81 ] In May, 2013, the RCMP and MCSC received a tip that the Accused might be using Facebook. A page was located in the name of Angelina [S] who resembled the daughter, C.S..

It was still believed that they were in Germany. [ 82 ] In early April 2014, J.B. and his wife became aware that the grandmother R.S. had a Facebook account and had four friends including two females and one male, all with the surname, Sparkling. Their heads were covered with an image of a tiger’s head. Using this as a basis, they were able to locate a Facebook page and an Instagram account belonging to the daughter, C.S.. One of the photographs was of a church with the caption that, “My house is right across from this church”.

They were able to find the location of the church in Pacolet, South Carolina, and they immediately booked a flight to go there. They advised MCSC who advised the RCMP on April 14, 2014. [ 83 ] They arrived on April 11, 2014 and located a house across from the church. A male was sitting on the porch. They continued to watch and some time later a girl left the house. They believed her to be C.S. and called to her by name. She started to cry and ran back into the house. Shortly thereafter the Accused came outside and spoke with them. She asked how they had found her and invited them inside.

They told her not to worry as they had not told the police and they described how they had located them. The children were introduced to J.B.. They were reluctant to interact with him and S.S. became very upset, wanting to fight him. They agreed to leave and meet up again the next day at a restaurant. The children were shown photos taken with their respective fathers when they were young. [ 84 ] During the next several days, they saw the children every day, bought food for the family and clothing for the children, and obtained passport photos.

During this time the Accused spoke in negative terms about J.S. to J.B.. J.B. and his wife were also shown a photograph taken at an unknown time of the Accused’s parents with the Accused and her new American family. [ 85 ] The house in which they had been living was rundown and mouldy, and did not appear to have any food. [ 86 ] J.B. and his wife rented a car and drove with the children to Canada, entering at Niagara Falls, Ontario. They had been advised that C.S. had a health condition which prevented her from flying. The maternal grandparents met them in Toronto where they all stayed for two weeks.

The children then returned to Coquitlam with their grandparents for a short time then moved to Alberta to live with J.B. and his wife. S.S. refused to have contact with his father when he was in British Columbia. [ 87 ] After their return, the children began to disclose things they had been told. C.S. said that she was aware of the allegations that her father had molested her. S.S. blamed his father for a birth defect to his fingers, believing that it had been caused by his father punching his mother in the stomach during pregnancy.

These latter allegations had never been made in family court proceedings and there was no evidence to support that she had been punched or that even if she had, that could have caused the birth defect. [ 88 ] On May 12, 2014, R.S. contacted Cpl McNeilly, the RCMP investigator in the matter, saying that the children did not want to speak with him. She was cautioned regarding the offence of obstructing justice.

The children called two days later saying they did not wish to make statements. [ 89 ] On May 15, 2014, S.S. called the contact at MCSC to arrange a meeting with his grandmother, J.S.’s mother, before leaving British Columbia. S.S. finally met his father for the first time on May 30, 2014, when J.S. went to Alberta to see him. S.S. challenged him with having caused the birth defect, adding that he understood that J.S. had wanted the Accused to abort him and that he had punched her to try to cause an abortion.

This was denied by J.S. and simply was not true. [ 90 ] The children moved to Alberta in mid-May and have continued to reside there with J.B. and his wife. They had never previously attended school as they had no legal status or identification that could be used in the United States. Apparently the Accused home-schooled them although that may have only been to a grade eight level. The wife of J.B. works for the School Board in their city and was able to assist the children in furthering their education. S.S. entered grade 11 in the fall of 2014 and graduated grade 12 in 2015.

C.S. has been studying for her GED but has not yet graduated. The children received no medical or dental care and were never taken to hospital in the entire time they were in the United States. [ 91 ] The Accused does not have a criminal record in Canada. Neither of the fathers has a criminal record. The Accused’s Actions Since the Return of the Children: [ 92 ] After the children were returned, the Accused through her counsel began to negotiate her own return to Canada to occur June 9, 2014. However, she was arrested on June 4, 2014 in South Carolina for assaulting her third husband.

She remained in custody until September 25, 2014 when she pleaded no contest. The Court documents record that she was convicted and sentenced to time served. She was released on bond on that date pending her deportation hearing for being illegally in the United States. The American authorities had been advised following her arrest that the Canadian authorities were not requesting that she be detained in custody; rather they were going to apply for her extradition. She voluntarily surrendered herself at the Canadian border on December 21, 2014 where she was arrested.

She was released the next day on bail terms that included no contact with the children. That condition was later amended on February 6, 2015. [ 93 ] On her return she moved back in with her parents where she continues to reside. She was examined by Dr. Jeanette Smith, a

Forensic Psychiatrist, on March 24, 2015, at the request of her lawyer. Much of the material provided to the court was also provided to Dr. Smith for the purpose of her examination. The Crown takes no issue with her qualifications. However, the Crown notes that much of the self-reporting provided to Dr. Smith by the Accused and upon which Dr. Smith relied, is in conflict with the contemporaneous materials originating from the family court proceedings. In addition, there was no psychological testing and there were no collateral interviews.

As such, the Crown argues that the report is of limited assistance, particularly in its conclusions. [ 94 ] In comparing the contents of the report with the details set out above, it is clear that there are many significant inaccuracies. For example the Accused says that J.B. had no contact with C.S. for the first six months after her birth when in fact he saw her when she was two months old, when he was first told of her birth. His contact after that was not “only occasional”; rather he saw her monthly with few exceptions. He never moved to the Lower Mainland.

There is no evidence that J.S. ever wanted the Accused to have an abortion, and there is no evidence of “a particularly severe beating in October 1995”. The only specific incident described in all of the materials was in August 1995, and it was never described as “a particularly severe beating”. Although there were complaints made that J.S. stalked and harassed the Accused after their separation, those were rejected by the court in later hearings and many were found to be simply untrue.

No complaint was ever made relating to “friends” or other siblings besides the brother – and that complaint were untrue as he was determined by the police to have been the aggressor. At the time SS was apprehended, the Accused did not admit having caused the injury and instead blamed J.S.. She only admitted the truth weeks later after careful questioning by a police officer. These are just a few examples of contradictions but the report is rife with them. Some of the other materials relied upon are double and triple hearsay and as such are of no value.

In short, I find that the opinions expressed are of little value given that they are based on a series of misleading and significantly self-serving statements. [ 95 ] Dr. Smith wrote that, “It is likely that when [the Accused] fled to the US with her children, her decision-making and judgment were impaired by the prolonged stress, her high levels of anxiety, the sense of powerlessness and a genuine fear for her own safety and the safety of her children.

She apparently believed that her daughter was being sexually abused by [J.B.], feared that [J.S.] could seriously hurt both herself and her children and perceived that no one could protect her or her children.” While I am sure that this accurately states what the Accused told Dr. Smith, I am satisfied that these were not honestly held beliefs and I reject that explanation.

Rather, I am satisfied that her prime motivation in fleeing Canada with the children was that it was the next step in a prolonged effort at alienation to ensure that she no longer had to deal with their two fathers and no longer had to share the children with them. This finding is consistent with that of Justice Shaw set out above. [ 96 ] In addition I do not accept the accuracy of the statement contained in the report that, “There is no evidence of any other aggressions and there is no history of substance abuse.

Her personality is not characterized by antisocial or psychopathic traits and although she has little support in Canada, she is clearly well supported by her parents.” [ 97 ] Dr. Smith stated in her conclusions, “[The Accused] has now had three very unsatisfactory and abusive relationships and my only concern that she will once again find herself in another unhappy relationship. She minimizes this possibility, maintaining that she has learnt from experience but in my opinion this is unlikely.

She may benefit from counselling in order to explore these issues in more depth but until she is actually in another relationship this is unlikely to be a priority for her. She is otherwise not in need of psychiatric treatment.” While it is clear that there is no history of substance abuse, there is significant evidence of her aggression. In addition, it is clear that she is very much in need of counselling, not to investigate her inability to form happy relationships, but to address what appear to be other deep-seated psychological issues.

It is clear from this report that the Accused has yet to acknowledge her own short-comings and twisted thinking that resulted in her committing these offences. [ 98 ] Documents filed at the sentencing hearing indicate that the Accused attended eight sessions of “supportive weekly counselling sessions” from January to March 2016 that were offered by a counsellor trainee through the UBC Counselling Psychology program.

Because of the nature of the program as a training facility no diagnosis or treatment plan was provided and no medical report or records were made available other than confirmation of attendance so it is impossible to determine what transpired during those sessions. Victim Impact Statements: [ 99 ] Information was filed by the Crown on behalf of the two fathers, J.B. and J.S., as well as the two children, C.S. and S.S.. Not all of this was in the usual form of victim impact statements, particularly as regards C.S. who recently retracted a victim impact statement she had made earlier.

C.S. and S.S. were interviewed together on February 3, 2015 by a police officer about six weeks after the Accused’s return to Canada and before her bail was varied to provide for contact with the children. The victim impact statements of J.B. and S.S. were also in the form of interviews with a police officer in November 2015. The written statement of J.S. was completed at the beginning of these sentencing proceedings and he also addressed the court during the hearing. [ 100 ] The joint interview of February 3, 2015, with the two children gives some insight into their lives since their abduction.

C.S. recalls that their mother drove them from British Columbia with them having to hide in the back seat of the vehicle. They were taken to California, Ohio, Tennessee, and then South Carolina. They moved around to such a degree that they never felt that any place was home. They were given false names. When their mother remarried they used assorted first names and their step-father’s last name. C.S. recalls being told at about age six or seven that it would be dangerous for her to return to Canada; S.S. said he was about twelve or thirteen when he was so informed.

They were told that there were two bad men in Canada that they should be afraid of, and if immigration found them, they would have to go back. As a result of their illegal status in the United States, their mother never enrolled them in school or took them to hospital, and they received no medical or dental care. [ 101 ] As she got older, C.S. believed that she had committed a crime by being in hiding so she did not contact the authorities because she thought she would end up in jail for many years. These thoughts were apparently the result of assorted internet searches on illegal aliens.

She was also fearful because her mother had told her that she would go back to her father if she went to Canada and she did not want that because she feared her father based on what her mother had said about him. She declined to elaborate on what was said when asked. They described moving a lot because their mother would start feeling it was not safe to stay where they were, and so they would move, again. [ 102 ] In about 2011 or 2012, the children decided to look into their background and found J.B. on Facebook. They thought of

contacting him or “friending” him, but decided not to because of uneasiness about their mother’s response. They did not tell her they had located him. They also found the website that J.S. had created to locate them. Again they did not reach out, but realized that what they thought may have happened to them in terms of having fled Canada was real and not just a story. In retrospect, they seemed to regret not contacting J.B. in 2011 so that he could have taken them back.

They described that they could have started school sooner and “life would just be easier for both of us”. [ 103 ] S.S. described starting to get to know his father, J.S., since his return. He described a slow process but one that was moving forward. He also enjoyed getting to know J.S.’s mother, his paternal grandmother. [ 104 ] In a message sent to Crown Counsel on November 25, 2015, S.S. stated that he simply wished to remain neutral regarding the sentencing process.

He added that he believed it would be a good idea for his mother to seek counselling. [ 105 ] C.S. apparently prepared a Victim Impact Statement but retracted it. In a letter addressed to the court dated January 2, 2016, written just after a Christmas visit with her mother and grandparents, she described her mother as being “a good mom to my brothers and myself.” She wants to continue to have a relationship with her mother and to visit with her. She also stated, “My mother may not appear to be the best mother to the world, but she is the best mother to me.

I care about her and love her, just as any child would love their parent.” She concluded that she did not want her mother to be sentenced to jail. C.S. attended court for the first day and part of the second day of the sentencing hearing sitting with her mother and grandparents. S.S. remained in Alberta. [ 106 ] J.B.’s Victim Impact Statement was in the form of an interview in Alberta on November 18, 2015. He described how in 1998 he was in court hoping to get more access to his daughter including trips and holidays.

When he realized she had been abducted he looked for help from the Missing Children and continued working to stay busy so as to not focus on her loss. He wanted to teach her to skate and ski, but missed out on that. He noted that he did not want to take her away from her mother; rather he just wanted to spend more time with her. After the Accused left with the children, J.B. spoke with her mother, R.S., who told him that he would never be able to find his daughter.

He did not speak again with RS after that date until after the children were located. [ 107 ] He spoke of finding the children in South Carolina and the very sub-standard condition of the house. He expressed surprise that it was even allowed to be lived in. They were poorly dressed in the little worn out clothing that they had. C.S. indicated to him that they were not allowed to go out, almost as though they were living in a prison. They were not allowed to have friends over and could recall only one time that a neighbour visited. He was very aware of having lost sixteen years with his daughter.

Even after having her live with him for a year and a half, J.B. is aware that although C.S. has opened up a bit to him, it will take a long time before she opens more. He attributed that to the fact that they were not socialized to spend time with people including going to school and having experiences with other people. He described C.S. as having a very difficult time catching up in school, whereas it has been much easier for S.S.. He and his wife were able to put S.S. on their medical plan and are paying for C.S.’s medical insurance.

He commented that he could not understand the Accused’s hate for him, and the even greater hate that she has for J.S.. When asked how he felt about having his daughter back, he replied, “I feel awesome. Like it’s the best day in my life.” [ 108 ] Comments from J.B. and his wife include a desire for the Accused to reflect on how she would have responded had she been deprived of the children for sixteen years. They also hope she takes counselling.

In addition, they are hoping that she can stop continuing to speak negatively about the fathers so that in the future, all the parents can attend significant events regarding the children including weddings, etc. [ 109 ] J.S. prepared what he called an Emotional Impact Statement. He read it in court during the sentencing proceeding and made further comments. For him, the absence of his son and his step-daughter whom he also loved, was devastating. He was unable to work because of the stress and anxiety and he isolated himself from those around him.

He described himself as becoming, “totally introverted and incapable of having any healthy relationships.” He was eventually diagnosed with major clinical depression. He was unable to divert his thoughts from thinking about the whereabouts of his son. As a result, he was often in conflict with those around him – in his family, at his workplace, and in the community – because he did not believe that anyone could understand the depth of his loss.

So despite making efforts to regain employment and to re-socialize over the years, they were short-lived and infrequent and he was unsuccessful. [ 110 ] Since finding S.S., his depression is lifting slightly and he is optimistic about eventually being employed again. He described that the loss of his son was exacerbated by knowing that he was “alive, growing, maturing” somewhere without him. With his location being unknown, he knew nothing of what he looked like and how he was developing.

He “was denied all of these simple yet monumental changes in [S.S.]’s life.” He described, “I have never been able to experience the joy of helping [S.S.] to read and write, and never had the pleasure of hanging a drawing of his on my refrigerator. All the little things a child goes through were robbed from me by this one act of cruelty.” He has been treated by his family doctor since the abduction and by a psychiatrist since 2010 for his depression and other related issues.

Notwithstanding his limited financial means he hired a private detective and travelled to a number of cities to speak to authorities and other national search agency’s detectives in his attempts to locate his son. [ 111 ] The current level of contact between S.S. and J.S. is infrequent, including texting through Facebook. J.S. texts his son daily; S.S. usually replies, sometimes briefly, other times more expansively. They have met on only five occasions in two years, twice in Alberta and three times here in BC including a ten-day visit this past Christmas at J.S.’s mother’s residence.

They have found activities that they can share but S.S. has not been forthcoming about the sixteen years apart and they have not yet bridged that gap. Accused’s attitude to the offence: [ 112 ] The Accused filed a letter with the court in which she said that at the time she left Canada with the children, “I was under considerable mental stress and duress and I was afraid I wouldn’t be able to protect my children and myself. I had been pushed beyond my limits; I felt my situation was an unending nightmare and I was mentally falling apart.

I felt that I could no longer function under the pressure and I was in a constant state of fear.” She stated later in the letter, “I left with only the intention of providing a safer and more peaceful environment for the kids.” She

acknowledged that her actions, “…denied the fathers the opportunity to spend time with their children as they were growing up”, and that she had disobeyed a court order. She said she was sorry and apologized to the court and the children’s fathers. [ 113 ] The court was also provided with a letter apparently mailed March 20, 2014 from the Accused to her father. In that letter she tells her father that if she and the children are caught in the United States they will be arrested and imprisoned for ten years, so she sought her father’s assistance to return to Canada. She included her telephone number.

Interestingly, the letter also states, “Dad I would like to hear from you. Unfortunately, I do not trust Mom cause she always has a hidden agenda with malice intended and I need some straight answers without lies. Someone who I can trust.” The Crown has submitted that this letter should be treated with caution and that it may not be reliable. [ 114 ] In May 2014, members of the RCMP located a Facebook account under the name Serenna Knight. Because of the comments posted and the names of “friends”, there is no doubt that this account belonged to the Accused using a pseudonym.

When the Accused was arrested on June 4, 2014 for the assault of her third husband, several Facebook accounts were visible on the computer monitor in her home including those of S.S., C.S., the grandmother R.S., and the Accused. Messages included reference to J.B. and his wife, and S.S.’s grandmother, the mother of J.S.. [ 115 ] With the assistance of the Mutual Legal Assistance Treaty (MLAT), the RCMP were able to gain access to the Facebook accounts of the Accused and her mother.

The content of messages from the Accused to her mother after the children were found but before they were returned to Canada include her asking whether J.B. is remorseful, and stating that she and C.S. want to know what he is willing to do to “fix the situation”.

She wanted to know if J.B. was “willing to get a lawyer [to] beg the judge to let me go, [saying] it was a mistake and misunderstanding.” Then on May 31, 2014, after the children had gone to Alberta to live with J.B., the grandmother sent a message to her grandson, S.S., saying, “[J.B.] sent a letter to Jim McNeilly of the Coquitlam RCMP asking them to dro

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