Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22 DATE: January 13, 2020 COURT FILE No.: C210227/18 BETWEEN: CHILDREN'S AID SOCIETY OF TORONTO Applicant, — AND — L.R. (mother) T.H. (father) Before Justice Roselyn Zisman Heard on November 18 to 22, 25 to 29, December 2 to 5 and December 9, 2019 Reasons for Judgment released on January 13, 2020

Chithika Withanage........................................................ counsel for the applicant society Davine D. Burton ……………..…….……………..counsel for the respondent (mother) Cherry E. Isaacs-Reynolds....................................... counsel for the respondent (father) Gary Gottlieb......................................... counsel for the Office of the Children’s Lawyer, legal representative for the child G.R. Zisman, J.: 1.

Overview [ 1 ] This is a decision after a 15 day trial regarding G (“the child”) who is now 11 years old who has been exposed to conflict between his parents and their volatile off and on relationship since he was about 2 years old. He has been the subject of custody and access proceedings, various investigations by the Toronto Police Services (“TPS”) as a result of allegations that his father sexually abused him and he has been subjected to the involvement of the Children’s Aid Society of Toronto (“CAS” or “the society”).

As of January 2017, he has refused to have any contact with T.H. (“the father”) and L.R. (“the mother”) has alleged that she is unable to force him to have contact. [ 2 ] After attempting to work with the mother voluntarily, the society commenced a Protection Application seeking to place G and the mother’s new baby with the mother subject to the supervision of the society. [ 3 ] However, after being unable to make any progress regarding G having contact with the father, on August 13, 2019 the society filed an Amended Protection Application seeking an order that the child, G be placed in interim society care for 4 months and then be placed with his father pursuant to a 6 month supervision order. [ 4 ] The father supports the society position. [ 5 ] The Office of the Children’s Lawyer (“OCL”) seeks an order that the child be placed in the care of the mother pursuant to strict terms of supervision that would include terms that the child exercise access to his father and that the child be engaged in counselling, if he consents to such counselling. [ 6 ] The mother’s primary position as set out in her Answer, her counsel’s opening trial statement and in her affidavit and oral evidence was that the Amended Protection Application should be dismissed.

It was not clear if this meant an order pursuant to section 101 (8) or section 102 (1) of the Child, Youth, Family Service Act (“CYFSA”). It was the position of the mother that she would, despite the absence of a court order, encourage the child to have a relationship with the father. [ 7 ] However, after counsel for the society, the father and the OCL made their closing submissions, counsel for the mother withdrew this position and supported the position of the OCL that the child be returned to her pursuant to strict terms of supervision that included terms that the child would have access to the father.

This sudden change of position deprived the father from responding and left the court with evidence from the mother that it was now being asked to disregard. [ 8 ] The mother’s further alternate position was that the child be placed with his godmother NL. [ 9 ] The mother’s change in her position as to the relief she was seeking was typical of various issues that arose throughout the trial as the mother raised issues then advised that she was not pursuing them or was not clear as to the relevance of these issues.

In other instances, she raised issues that appeared to be attempts to delay or derail the proceedings. [ 10 ] The mother pursued several different themes in the presentation of her case. First, that she believed her son that the father sexually and physically abused him, that her family was aware of this abuse and did nothing and that her sisters participated in the abuse. Second, that she respected her son’s wishes not to have contact with his father, his maternal grandmother, his maternal or paternal family.

Third, that she and G did not have a close relationship with the maternal or paternal family prior to the separation. Fourth, she had a falling out with her family due to disagreements about her deceased father’s estate in Trinidad. Fifth, the father had been abusive to her throughout their long relationship and that he had similarly been abusive and had a child protection history with the mother of his other son who resides in Calgary.

Sixth, the CAS should have transferred her file to the Native Child and Family Services (“NCFS”) and that the child’s cultural, religious or philosophical beliefs were not been properly addressed by the society.

Seventh, she had cooperated with the society and the counsellors retained by the society to assist with a reunification process between the child and the father but that the society did not offer appropriate services to her. [ 11 ] These many themes were thoroughly canvassed in the lengthy and comprehensive cross-examination of the society’s and the father’s witnesses by mother’s counsel and in the presentation of the mother’s case. 2. Background [ 12 ] The mother 34 years old. She was born in Canada but is of Trinidadian descent. The father 40 years old and is of Guyanese origin.

They have one son G who is the subject of these proceedings.

[ 13 ] The father has another son who lives in Calgary and is now 16 years old. The father did not have a relationship with that child until the last couple of years. [ 14 ] The mother has another son born on […], 2018. The father is JM. According to the mother, she and JM do not live together although they are jointly parenting their new baby and JM has a good relationship with G. [ 15 ] The mother is a supervisor in the travel industry and resides in Toronto. [ 16 ] The father is in the military and is stationed in Petawawa.

Prior to the final separation between the parents, he had flexible and generous access and would travel to Toronto on most week-ends to spend time with the child. [ 17 ] The parties met when they both resided in Calgary. The parties were in an off and on relationship from 2003 until January 2017. At the time of the final separation G was 8 years old. [ 18 ] The relationship was tumultuous. There were allegations of domestic violence by both parties and both were at different times charged criminally.

All the charges were subsequently withdrawn. [ 19 ] As a result of the allegations of domestic violence the society became involved with the family in 2010 and 2011.

After initial investigations, the society closed their file at intake. [ 20 ] The parties’ separated in 2011 and on consent they entered into a court order dated February 24, 2011 giving the mother custody and the father reasonable access on reasonable notice and requiring him to pay child support. [ 21 ] The mother, the child’s godmother, the maternal grandmother, the maternal aunt, the father’s friend and the paternal aunt all testified that the father was a loving and involved parent and that he enjoyed a good relationship with his son. [ 22 ] The mother and father reconciled in 2016 and the father asked the mother to marry him.

They were to be married in February 2017. However, the father called off the wedding just prior to the mother making allegations that he sexually abused their son. [ 23 ] On January 21, 2017 the mother accused the father of being sexually inappropriate with G. The mother called the police who interviewed the child that evening. The child did not make any disclosures.

Subsequent investigations by both the police and the society did not verify any sexual abuse by the father. [ 24 ] The mother commenced a domestic court application at the end of March 2017 and obtained a restraining order against the father based on her allegation that the father has sexually abused their son. [ 25 ] In the course of the domestic proceedings, the mother obtained a final order on June 27, 2017 suspending the father’s access to the child, ordering him to pay child support and his share of

section 7 expenses. The order provided that the father had leave to file an early Motion to Change with materials from the children's aid society and the TPS. At the time of this proceeding the father was not represented by counsel and he testified that he naively thought that he could just attend court and advise the judge that he never hurt his son. [ 26 ] The father commenced a Motion to Change and during the proceedings the court made several orders for access.

However, the child refused to see his father, the maternal grandmother or his maternal aunts and the mother continued to maintain that she could not force the child to see them. [ 27 ] The society continued to be involved with the mother, G., the baby and her new partner on a voluntary basis. However, the society had difficulty working with the mother and her partner. [ 28 ] On July 13, 2018 the society commenced a Protection Application seeking an order placing both G and the new baby in the care of the mother subject to supervision of the society.

The concerns outlined included the mother’s lack of understanding and acknowledgement of the impact of ongoing false allegations accusing the father of sexually abusing G, the mother’s volatile relationship with the father and its impact on G, the children’s expose to adult conflict between the mother and the father, JM’s temperament and its impact on the children and his hostile attitude towards the society and the mother and JM’s unwillingness to work the society voluntarily to address the concerns of the society. [ 29 ] On January 9, 2019 after a contested hearing, G was found to be a child in need of protection pursuant to section 74 (2) (

h) of the CYFSA , that is, risk of emotional harm. [ 30 ] The court did not find that the baby was at risk of harm and dismissed the society’s application. [ 31 ] Subsequent court ordered access between G and the father did not take place as the child refused to get out of the car.

The society’s attempts to arrange for reintegration therapy with Marcy Urbas and then with Milan & Associates was also unsuccessful in large part due to the mother’s lack of cooperation. [ 32 ] After the reunification therapy broke down, the society brought a motion to place the child with the maternal grandmother. [ 33 ] After a contested motion heard on July 23 and 25, 2019, Justice Paulseth who was the case management judge held that the child should be placed in a neutral environment.

G was ordered into the care of the society with access to the parents and the extended family at the society’s discretion including when such access would commence. [ 34 ] On August 13, 2019 the society amended its Protection Application seeking an order that the child remain in the care of the society for 4 months and then be placed in the care of his father. [ 35 ] The father did not have access to the child from January 21, 2017, when the mother accused him of sexually abusing G until

October 19, 2019 when the child was in the care of the society and the process of reunification therapy commenced with Diana Polak. [ 36 ] The society called 11 witnesses with the most of the society witnesses’ evidence in chief being by means of affidavits.

The father testified and he called as his witnesses his friend and co-worker George who the mother had accused of sexually molesting G, the maternal grandmother, one of the mother’s sisters and his sister. [ 37 ] The mother testified as did her friend NL, the child’s godmother, the child’s teacher, a reunification therapist, the child’s therapist, the child’s traditional healer, the mother’s counsellor, a psychiatrist who assessed the child and a worker from NCFS. The court viewed two police video interviews with the child and a video of a thwarted access exchange.

Two witnesses were accommodated by video and audio testimony. All parties filed affidavit and document briefs and there were 67 additional exhibits filed. [ 38 ] This was not only a complex factual and legal case but extremely emotional for the parties and their family members. 3.

Evidentiary issues 3.1 Child’s statements [ 39 ] At the outset of the trial, counsel for the society presented a chart outlining G’s statements that she wished to tender for their truth which were namely, statements the child made to the police officers and other statements that were being introduced simply on the basis that they were made that is, for narrative or context. [ 40 ] Initially, it was not clear if mother’s counsel was agreeing to the admissibility of the child’s statements made to the police officers, therefore it was agreed that a voir dire would be held prior to the police officers testifying. [ 41 ] However, counsel for the mother then agreed that the statements were admissible meeting the requirements as to threshold necessity and reliability.

Even if mother’s counsel had not agreed, the court would have ruled the statements were admissible based on the evidence of the police officers. [ 42 ] No submissions were made as to the ultimate reliability of the statements and there was no evidence presented that would diminish their reliability. Accordingly, I find that the statements made by G to the police officers can be relied upon by the court for their truth. 3.2 Surreptitious recording of Diana Polak [ 43 ] Diana Polak was retained by the society to conduct reunification therapy with the mother and father and the child.

She met with the mother for an initial meeting on October 4, 2019. Unbeknownst to Ms Polak and without her consent the mother recorded the meeting. Counsel for the mother, wished to play the audio recording in her cross-examination of Ms Polak. All other counsel objected to the admissibility of the audio recording. [ 44 ] A voir dire was held.

The mother testified that she wished to play the video as Ms Polak in her evidence had wrongly portrayed her as being unreasonable and as threatening her during the meeting. [ 45 ] Counsel for the mother submitted that the audio tape should be admitted as it was relevant and reliable and its probative value outweighed any prejudice. She submitted that it was not a confidential meeting as the family service worker and godmother were present and the family service worker took notes. She submitted that the society was aware that the mother recorded meetings.

She further submitted that there is a power imbalance in child protection cases and the mother was concerned that the court would prefer the evidence of Ms Polak and the family service worker over her version of the meeting. [ 46 ] The audio recording was played in court and the mother had a transcript prepared that although not certified was prepared by a professional agency. There were quite a few instances of inaudible conversation. After hearing submissions and for brief oral reasons the court ruled that the audio recording was inadmissible.

I will expand of those reasons. [ 47 ] It is well accepted that the court has a general discretion to admit such recordings by balancing their prejudice against their probative value including their reliability. [ 48 ] Counsel for the mother relied on several cases [1] where taped conversations between parents or between a parent and child were admitted showing that there was alienation and inappropriate pressure put on a child.

In those cases, the probative value outweighed the trial unfairness, the court’s repugnance of illegal conduct and the general need to discourage taping of private conversations between a parent and child. [ 49 ] However, this case involves the taping of a third party professional who was to assist the parties in a reunification process. It was done without Ms Polak’s knowledge or consent.

The importance of parties working with professionals in an open and trusting relationship for the best interests of their children cannot be overemphasised. [ 50 ] Counsel for the mother could not cite one case where a surreptitious recording of a professional had been admitted. In fact, she relied on an excerpt from, Evidence in Family Law, [2] where the author states, “Recordings of third parties are not admissible, regardless of the issue faced by the court.” [ 51 ] There are few reported cases of recordings made of third parties. In the case of Fattali v.

Fattali , [3] a father secretly recorded an interview with the children’s paediatrician. Justice Vogelsang held the evidence inadmissible and determined that such forays into the gathering of potential evidence are to be strongly discouraged and that proceedings involving the best interests of children should not be based on the product of calculated subterfuge. He also held that it did not help the father’s case to be plotting tricks or deceit to advance his case.

[ 52 ] In the case of F. (J.) v. C. (V.) , [4] Justice Steinberg would not admit a recording made by the father during his session with an assessor. The father sought to record the session as he wished to expose the gender bias of the assessor. The father also refused to produce unedited copies of the recordings prior to trial.

In refusing to admit the tapes, the court adopted the reasoning of Justice Vogelsang in Fattali ,supra, and stated as follows: In addition to Justice Vogelsang’s reasons, permitting such misconduct by the applicant would discourage members of the helping professionals from providing assistance to parties who might be involved in family law proceedings arising from the problems for which they sough medical, psychological or social work help.

That would not advance the administration of justice. [ 53 ] The systematic harm to the administration of justice and to the family law system in general of permitting a party to secretly record a third party professional who is attempting to help a child and parents far outweighs any probative value that the admission of such evidence could possibly provide. [ 54 ] In this case, godmother was present at the meeting and testified as to what the mother said and what occurred at the meeting.

The court was therefore able to assess the credibility of both the mother and godmother and Ms Polak and the family service worker as to what occurred at the meeting. The audio tape would not add any more probative evidence. [ 55 ] There is already a reluctance of professionals who will agree to be involved in high conflict or child protection proceedings knowing the likelihood of litigation or being reported to their professional organizations. [ 56 ] Further, there is always a power imbalance in child protection proceedings as it is a proceeding between an individual and the state.

But that is not a reason to permit a parent to secretly record meetings with professionals or society workers.

The prejudice to the administration of justice far outweighs the little, if any probative value, of such recordings. 3.3 Violation of the Rule in Browne and Dunn [ 57 ] At various stages of the trial, issues were raised by mother’s counsel that should have been addressed to witnesses when they testified in violation of the rule in Browne and Dunn [5] which is essentially a rule of fairness. [ 58 ] Although some of the breaches were not terribly significant, there were at least two instances where the issue raises concerns. [ 59 ] The mother’s sister Li testified that she received a series of disturbing and concerning text and Facebook posts from the mother just prior to the mother making allegations that the child was sexually abused. [ 60 ] Mother’s counsel objected to the admissibility of the texts and Facebook posts on the basis that they were not authentic and had been hacked. [ 61 ] The court ruled that Li could be cross-examined on this issue and the mother in her testimony could address the issue, if she did not agree that these texts were sent by her.

However, Li was not cross-examined on the authenticity of the texts or if the texts were hacked. [ 62 ] However, when the mother testified, she raised issues with respect to the authenticity of the texts and Facebook posts namely, regarding the way they were sent, the lack of dates on some of the messages and the fact they were sent within minutes. However, none of these specific issues were raised with Li when she testified.

Accordingly, she was not given an opportunity to explain why she attributed the texts and Facebook posts to the mother or offered an opportunity to explain the lack of date stamps or the timing. [ 63 ] The mother on the last day of trial, raised the issue of whether the child was First Nations, Inuk or Métis (“FNIM”). This issue had never been raised in any of the mother’s pleadings or in her own oral evidence. None of the society workers were cross-examined on this issue. Counsel for the child had not canvassed this issue with the child.

Raising the issue in this manner at the end of the mother’s case potentially could have significantly delayed the case and required several witnessed to be recalled. [ 64 ] The court required the mother to be recalled to testify with other counsel being given a further opportunity to cross-examine the mother on this issue. [ 65 ] Counsel were advised that submissions could be made with respect to what weight the court should place on evidence that contravened the rule in Browne and Dunn . 3.4 Credibility [ 66 ] The evidence of the society workers was clear, factual and child focused.

They spoke positively of aspects of the mother’s parenting. While they were critical of her conduct, I find that they were remarkably restrained in their evidence in view of the difficulty they encountered in working with the mother and given her tendency to criticize and threaten them. [ 67 ] I find that despite lengthy cross-examination by mother’s counsel, the evidence of the maternal grandmother and maternal aunt were not impugned. [ 68 ] I also find that the father was honest and forthright. He took responsibility for his actions.

He volunteered that he had been arrested for non-payment of support and admitted that he had less than an ideal relationship with his older son. He acknowledged that he had been immature, emotionally manipulative and emotionally abusive in his relationship with the mother. He also acknowledged that his non-payment of fees for Ms Urbas caused that counselling to fall through.

Despite lengthy cross-examination by mother’s counsel attempting to impugn his credibility, he answered her questions in a straightforward manner and admitted his frailties. [ 69 ] On the other hand, the mother was evasive, dishonest and inconsistent in her evidence. She had to be directed numerous times to answer the questions being asked. On multiple occasions when an obvious contradiction was pointed out or when she was accused of

providing misleading information in court documents, she blamed her counsel. She struggled with responding to questions about her belief in the sexual abuse allegations. She tried to impeach the father’s credibility with partial text messages but when confronted with the entire text message, she denied any knowledge of the text, even the portion that she herself had introduced into evidence. [ 70 ] I find that the mother’s evidence in general is simply not credible and where there is a contradiction between her evidence and that of the other witnesses, their evidence is preferred. 4.

Summary of relevant evidence and findings of fact 4.1 Allegations of sexual and physical abuse 4.1

(1) Allegations leading up to January 21, 2017 [ 71 ] Li, the mother’s sister testified that in mid January 2017, she began to receive odd and disturbing text messages and Facebook posts from her sister. She described the mother as always being a “little out there” but the messages became stranger. [ 72 ] On January 19 th , she felt something was very wrong, that the mother’s messages were “progressively getting worse.” She called her mother to tell her that she felt the mother needed to be medically assessed.

She testified that at the time she thought that “OMG she snapped.” [ 73 ] Li identified the messages were from the mother and confirmed the mother’s telephone number. She testified that the messages started a day or so prior to the first visible time stamp from January 17 th and ending on January 23 rd , 2017. [6] [ 74 ] In the text messages the mother jumps from topic to topic often contradicting herself and appearing to lose touch with reality.

The mother speaks of keeping her housekeepers, her nanny and her 5 bedroom house (none of which she had), she says she can’t focus and doctors tell her that she could be dying, the mother speaks of slipping into depression and anxiety. The mother speaks of her debt being sky high because of the father but then a few messages later she says the father paid for all her needs and that is how she built her business. [ 75 ] The mother then says that the father called off the wedding, but it may still happen in the future.

But then the mother continued to talk about the wedding and speaks about the father asking her for a prenup. [ 76 ] By January 19 th the mother begins to talk about the father having affairs with other women. She accuses the father’s “whore” of attacking her on Facebook and says that “all his whores are ghetto trashy skanks.” The mother tells Li that the father is saying that she gave him a “blow job” [ 77 ] The mother then accuses the father of sleeping with his co-workers, their cousin, their aunt and with her and her other sister.

The mother then goes on a rampage and calls her sister vile names, accuses her and the father of having sex and making G and Li’s daughter watch them. She accuses the father of putting G in the car and molesting and raping him and that Li knew about this the whole time. [ 78 ] The mother gave some vague evidence concerning the authenticity of the texts but then she acknowledged that the telephone number shown on the text messages belonged to her. She then did not deny sending the texts.

Her only evidence was that she had no recollection of these texts. [ 79 ] The texts are quite concerning as they are disjointed, contradictory and generally make no sense. [ 80 ] The accusations made by the mother in these texts regarding the father and her sisters are like the allegations the maternal grandmother heard the mother telling G on the early morning on January 22 nd after the mother reported to the police that the father had sexually abused G and G later adopts and makes similar accusations. [ 81 ] Li found out a few days later that the mother had reported to the police that the father of sexually abused G.

The text messages Li received from the mother were part of the reason she did not believe that the father sexually abused G. as she stated, “ When you accuse every single person of doing something to the child, there is clearly a credibility issue here.” [ 82 ] Both Li and the maternal grandmother testified that they did not believe the accusations against the father because they knew his character and knew that the accusations against their family were false. [ 83 ] I find that these text messages and Facebook posts were made by the mother. [ 84 ] Although the father, maternal grandmother and maternal sister all testified about concerns about the mother’s mental health and that she was having some type of emotional breakdown perhaps triggered by the wedding being called off, no expert evidence was called.

As a result, there is no medical diagnosis of the mother’s mental health but the text messages are evidence of someone who is emotionally unhinged, irrational and emotionally dysregulated. 4.1

(2) First Police investigation on January 21, 2017 regarding mother’s allegation of sexual abuse [ 85 ] On January 21, 2017, the mother testified that the child went with the father to go grocery shopping. The father and son had brought home food from Wendy’s. The child was playing and then complained that his throat hurt and the father told him to drink some water. The father went downstairs to retrieve the groceries he left in his car. When the father returned a few minutes later, he found the door locked and the mother yelled, “ did you hurt my son what did you do”.

[ 86 ] The mother testified that the child told her “ mommy my throat is burning and daddy choked me from the inside of my throat .” She told him to go drink water 3 times before he made this statement. The mother testified that she was thinking about an incident in August when she saw the father pull the child’s hoodie. When the mother asked G what he was choked with, he replied with his penis. G then told her not to tell the police and that his Dad will go to jail for 25 years.

The mother called 911 and said that her husband hurt their son. [ 87 ] The mother could not recall exactly what she told 911 dispatcher. The mother testified that she called her mother. The father also testified that he called the maternal grandmother and his sister. [ 88 ] The mother testified that the father kept banging on the door and she finally let him in and that he kept asking what happened. The mother testified that the father looked scared, eyes wide open and panicked. She kept telling him to ask G and the father kept saying nothing happened. The father grabbed his bag and left.

The mother called police again. [ 89 ] When the police arrived, the father had left and the maternal grandmother and the paternal aunt were waiting downstairs. The paternal aunt testified that she told the father to leave and gave the police officer his contact information. [ 90 ] The mother testified that she told the police that the father choked G from the inside of his throat and there was something “ squiggly ” in his throat.

The mother then corrected her earlier testimony in which she had stated that the child only told her that the father choked him from inside his throat and stated that G had also told her that there was something squiggly in his throat. [ 91 ] Detective Constable Catharine DeOliveira and her partner arrived on the scene at 9:22 p.m. just about 13 minutes after the call to 911. [ 92 ] At the time DC DeOliveira was in uniform as a primary responder. She had 10 years of experience in general investigation and limited training regarding interviewing children.

At that time, she had only interviewed 5 children and this was her first sexual abuse investigation. [ 93 ] However, DC DeOliveira testified that she satisfied herself that the child knew the difference between the truth and a lie and she asked G open ended questions. She testified that initially G was upset but when she assured him that he wasn’t in any trouble he calmed down. [ 94 ] G was not hesitant and was able to provide details as to what he had been doing earlier in the day.

He was able to recollect at least 13 different things he did which were later corroborated by the father when they spoke to him from their squad car. [ 95 ] The father told the officers that he left because the mother had a history of coming after him with a knife and that he did not want to get charged by her. [ 96 ] DC DeOliveira stated that the child said he choked on what he ate, his mother overreacted and he loves his father. DC DeOliveira was clear that G made no disclosures of a sexual nature.

G did not say anything to support feeling uncomfortable with his father and he cried when he said, “ I love my Daddy .” [ 97 ] DC DeOliveira then spoke to the mother who told her that the child said his throat hurt and there was something “ squiggly .” It was the mother’s inference that this was something sexual although she did not directly state that she thought it was semen. The child pointed to a cup and said that his throat hurt from drinking the carbonated drink.

At no time did the mother say that she may have been mistaken. [ 98 ] In cross examination by mother’s counsel DC DeOliveira stated that the child said his throat “tingled” and he did not say “squiggly”. [ 99 ] DC DeOlievra further testified that she told the mother that she would like to take a video statement at the station but the mother declined even after she offered to bring the video equipment to the apartment. The mother stated that her priority was the child. The officer advised the mother that Child Youth Centre for Advocacy (“CYCA”) would follow up.

When she left the child was not fearful and was calmly playing with toys. [ 100 ] DC DeOliveira’s evidence was clear and credible. She was not shaken on cross-examination. [ 101 ] After the police officers left the maternal grandmother who was waiting downstairs came up to the apartment. [ 102 ] The maternal grandmother testified that the mother kept talking until 1:00 or 1:30 a.m. and made the following statements both in the child’s presence and to him: (

a) the mother said the father put his penis in G’s mouth in the car and that the father had G kneeling down and doing it; the mother kept saying that the father abused G sexually; (

b) the mother said that G said his throat hurt and that G kept saying “ nothing happened, no mommy nothing happened, Daddy didn’t hurt me;” (

c) the mother kept saying Daddy did it and that the father and a guy name George put their penises in G’s mouth at the army base; G kept saying “ no ;” (

d) the mother told G that the father made him and Ab, his cousin, watch the father and Li, the maternal aunt have sex in his truck at work; (

e) the mother told G that he had watched La, the mother’s other sister and the father having sex and G responded “ absolutely not;”

(

f) the mother was showing G her tongue and illustrating how a penis is put in a mouth alleging that the father did that to him; and (

g) G said “ Mommy absolutely not,” and that the mother replied “ you know when you say absolutely not, you are lying .” [ 103 ] The mother denied the evidence of the maternal grandmother. However, she did not give any alternative explanation or explain what she did say. [ 104 ] She testified that her focus was on G but at the same time she testified that there was no discussion about the shocking disclosures that she alleges that the child made. She testified that she helped G brush his teeth, shower and she hugged and comforted him.

But the mother did not explain how she comforted the child if she did not discuss what had just happened. [ 105 ] The mother did not dispute that the grandmother slept over that night on the couch and that G slept beside her on the floor and that he went and stayed with the grandmother in her apartment until the following Tuesday morning. [ 106 ] However, the mother never explained why the child would have wanted to sleep near his maternal grandmother and not her on such a traumatic night especially as the maternal grandmother made it clear to the mother that she did not believe any of these accusations.

If the father had sexually abused the child, why would the child not have wanted to be with his mother to comfort and protect him? [ 107 ] The maternal grandmother testified that the mother kept calling her every 5-10 minutes asking who was there, if the father was there or if she brought anyone to do something to the child. [ 108 ] The mother told her mother to return the child to her on the morning of Tuesday January 24 th , as there was a society worker coming to the home. [ 109 ] When the maternal grandmother took G to his mother’s apartment, she kept asking what she did to G and carried on about someone being over at her place.

The mother then told G that she had to check his bum and the child began to cry. The mother made the child change his clothes but did not check him and the child kept crying. [ 110 ] When the maternal grandmother testified, she became very emotional. She was quite uncomfortable in describing the sexual acts her daughter spoke of and was visibly upset and angry as she testified about her concerns about her grandson.

She asked about how a mother could do this to an innocent child putting things in his head and asking how a child could recover from this. [ 111 ] In contrast when the mother testified about these events, she was calm and showed no change in her demeanour when describing the allegations and what allegedly took place. [ 112 ] The maternal grandmother stayed for the meeting with society worker Miguel Torres. According to the maternal grandmother, the mother did not mention the sexual abuse allegations but instead she went on about the father having affairs. The society worker spoke to G privately.

There was no verification of any sexual abuse. [ 113 ] The maternal grandmother testified that she saw the mother and child at the Willowdale Christian Assembly Church that Sunday January 29 th but the mother would not allow G to sit with her and he would not talk to her. [ 114 ] In March 2017, the mother commenced domestic proceedings to obtain a restraining order against the father based on her allegations of sexual abuse.

The mother did not advise the court that that both the police and the society had not verified the allegations. [ 115 ] When cross-examined about this important omission from her court documents the mother blamed her former counsel despite acknowledging that she had read and signed her own affidavit. 4.1

(3) Second police investigation on April 10, 2017 [ 116 ] The society received further information that G made a disclosure and it was decided that the society and police would conduct a joint follow-up investigation to the initial January investigation. [ 117 ] Detective Lauren McFatridge was assigned to the case. Detective McFatridge is a experienced child abuse investigator with the CYAC. She has been assigned to the CYAC since 2013 and had previously worked in the youth bureau for 4 years.

She received training at the National Advocacy Centre in the United States on how to interview children and training with the Sick Children’s Hospital Suspected Child Abuse and Neglect department. Her ongoing training involves monthly peer reviews conducted at the CYAC where the officers watch each other’s interviews and critique them. [ 118 ] The video recording of her interview with G was played in the courtroom as well as the subsequent interview with the mother. [7] [ 119 ] On consent the child’s statements to Detective McFatridge were entered for the truth of their contents.

Detective McFatridge confirmed that G knew the difference between the truth and a lie. [ 120 ] Detective McFatridge reminded G that he spoke to the police a few months before about his sore throat and she was following up. [ 121 ] When asked about the January 21 st incident, G told her the same thing he told Detective DeOliveira except that he states he ate a spicy burger from KFC not Wendy’s. He said that his mother overreacted and he told her that.

He said that this was the craziest he had ever seen her, that she overreacts a lot and that he can’t do anything about it. [ 122 ] Detective McFatridge asked him about an allegation the mother made that he was play fighting with his mother’s shadow that

his father became angry at him and choked him.

G did not answer or acknowledge this incident. [ 123 ] G is asked about his mother talking about a “swirly” thing but G replied that it is just something his father does to refresh his tongue. [ 124 ] G said that his father never told him that he and his father can do what mothers and fathers do. [ 125 ] When asked about feeling safe with his father, G appeared to be hesitant but responded that he would feel safe if his mother was in another room. [ 126 ] G spoke of being afraid as he was worried about his father taking him away since he could be mad at his mother for not wanting G to see him.

He said that his mother is scared about him. He said that he does not really care if his parents get along but then said he wished they did. [ 127 ] Detective McFatridge asked G is he ever felt his mother was trying to get his father in trouble. G responded that he thought so and she is getting “ thousands of restraining orders” and going to the judge. [ 128 ] Watching the video, it is clear that G feels comfortable with Detective McFatridge and at the end of the interview he asked her about her job and what she does.

He does not appear to be afraid or distressed. [ 129 ] However, what is also clear is that he is beginning to express some fear, some reluctance to see his father, is aware of the conflict between his parents and is being made to feel that he must take sides. He is also aware of the court proceedings. [ 130 ] Detective McFatridge testified that once a child has disclosed to a parent, it is very uncommon for the child not to disclose in an interview as keeping secrets makes children feel sad and that in sexual abuse cases children reveal what has happened to them.

She contrasted this with the situation where a child had not already disclosed and a parent or teacher notices sexualized behavior and in that situation a child is less likely to disclose. [ 131 ] Detective McFatridge testified that generally she asks open ended questions but as G was not forthcoming, she asked him some leading questions. [ 132 ] Detective McFatridge specifically testified that G told her that his mother forced him to say that [statements that G allegedly made to the mother] and she asked him a lot of questions.

She testified that this was the only time a child has said someone forced them to say things in about a 1000 interviews she has done related to physical and sexual abuse. [ 133 ] Detective McFatridge testified that she is concerned when there are custody and access issues and a child is being used as a pawn and she wondered if this was one of those cases. [ 134 ] Detective McFatridge interviewed the mother and advised her that G had not made any disclosures about physical or sexual abuse.

She warned the mother that there is a concerning pattern by the mother of allegations but then no disclosures were made to the society and to the police. In the interview, the mother stated that the father keeps telling the child not to say anything but does not explain how this is possible since the father had not seen the child since January 21 st . [ 135 ] Detective McFatridge explained to the mother that these allegations will be listed as false allegations for the second time and that if this happens again the child will have no credibility in the future.

She told the mother that it is traumatic for a child to be interviewed by the police and that if something else happens maybe the mother heard him wrong or she is overreacting and not to call the police again. The mother made no response and then says that she doesn’t really pick up the phone. [ 136 ] In cross-examination, Detective McFatridge explained that she did not charge the mother criminally as it was difficult to prove that the mother did not actually believe the allegations. She found it hard to believe that a mother would make this up and do this is her own child.

She felt these false allegations were significant enough to warn the mother and discussed with the family service worker to support the mother and provide some options to her. [ 137 ] Detective McFatridge was highly experienced and knowledgeable with respect to sexual abuse investigations. She was an impressive witness. The mother did not provide any evidence about this interview either in her affidavit or in oral evidence. 4.1

(4) Further allegations by the mother in July 2017 [ 138 ] In May 2017, the society’s file was transferred for ongoing services on a voluntary basis to Ashley Moses, a family service worker. At the time the mother had a temporary restraining order against the father having contact with her and the child. [ 139 ] Ms Moses met with the mother on July 5, 2017 as the mother had told her that she had found pictures of G on the father’s ipad not wearing clothes, face down with his buttocks as the focal point of the picture.

The mother said she was afraid of turning these photos to the police as she had been cautioned not to make false allegations. [ 140 ] Ms Moses advised that she needed to review the photos as a referral to the police may need to be made as it was her duty to report if a crime had been committed.

The mother reported that she had not asked G about the photos. [ 141 ] The mother said that she was keeping a log of statements that G made and gave an example that in February 2017, G told her that the father was making movies of them and stated that they were at Walmart and G kept looking at the direction of the washroom when he said that they were making movies. The mother also said that in March 2017 G was looking up at the ceiling and he told her that when he was out with his father, they always are looking out for security cameras. [ 142 ] The mother told Ms Moses about a special box G kept in his room.

She looked through it and showed Ms Moses a strip of 3

photos of G and the father. In one photo they were smiling, in another G was sticking his tongue out and the father was making a silly face and in the third the father had his arms around G’s chest while appearing as if he was forcefully wrinkling his face in an angry way. When Ms Moses said that she did not see anything concerning in the photos, the mother explained that she found the third photo concerning as this was the face the father made when he orgasmed. [ 143 ] The mother then showed Ms Moses the photos she alleged were taken of the child.

Ms Moses explained that she owns an Apple computer and that she believed that the photos were a product of a photobooth application that can produce mirror images of the subject in a photo. The mother said that she could tell the photos were taken at her mother’s house. Ms Moses also told the mother that she questioned if it was G’s buttocks due to the appearance of hair. [ 144 ] Ms Moses stated that she would consult with her supervisor.

Ms Moses also noted that the time stamp on the photos was December 30, 2015. [ 145 ] The mother also brought up another sign as to why she speculated sexual abuse had taken place on January 21, 2017. When G came home he wanted to take a bath and brush his teeth which she said was out of character for him. It should be noted that when the mother gave her evidence in this trial, she said the child took a shower and brushed his teeth but that occurred several hours later and she never commented that this was unusual. [ 146 ] Ms Moses consulted with her supervisor Ms Dorian King about the photos.

Ms King agreed with Ms Moses’ assessment that these were obvious computer duplication effects. Ms King also noted that in one of the photos the shape of the buttocks was too emaciated for it to be a 6 year old child’s buttocks. [ 147 ] Ms Moses spoke to the father on the telephone about the photos. The father denied taking any inappropriate photos of his son. The father referred to a computer program with effects that can compress and duplicate pictures that appeared consistent with her own

interpretation of the photographs. [ 148 ] Ms Moses advised the mother that the society would not be taking any further action regarding the photos as the society did not believe that any of the photos were related to sexual activity. The mother appeared to have a flat affect as Ms Moses related this to her and was unresponsive when she asked the mother if she thought her rationale was plausible. [ 149 ] Ms Moses also interviewed G who did not make any disclosures to her. However, when asked about not seeing his father, he said he felt “ good ” and appeared indifferent.

When asked if he had any worries about not seeing his father, he said that he did not. [ 150 ] When the mother was cross-examined about Ms Moses’ information to her that the photos were not genuine photos showing sexual activity, the mother testified that she “ accepted what was said and moved on.” [ 151 ] However, in the mother’s December 1, 2017 affidavit filed in the domestic proceedings the mother included these photos and does not mention the society’s position.

When cross-examined, the mother could not provide an explanation except to blame her former counsel, even though the mother acknowledged reading and signing her affidavit. [ 152 ] I find that these further allegations by the mother were unfounded and that the mother once again misled the court. 4.1

(5) Allegations in September and October 2017 [ 153 ] On September 29, 2017 the society received a referral from James Carpenter, a traditional healer at Anishnawbe Health Centre, stating that G disclosed to him during a therapeutic session that the father had sexually abused him. [ 154 ] A decision was made to interview G privately at his school due to the historical unverified sexual abuse allegations, concerns related to the mother influencing G during and the suspended access between G and his father who was the alleged perpetrator. [ 155 ] Ms Moses interviewed G at school on October 10, 2017.

She spoke to a detective who declined to participate in a joint interview due to the minimal details provided and asked her to reconsult after her interview with the child. [ 156 ] Ms Moses told G that she was there to check up on him and told him that she had spoken to his counsellor who had shared some information with her. G said it was okay to speak about it with her. [ 157 ] The following was discussed in the interview with G: (

a) When asked if he could remember what he told James Carpenter G said, “ T put his privates on me [ he called his father by his first name]; (

b) When asked what prompted him to tell Mr. Carpenter this he did not know and could not remember what they were talking about; (

c) When asked when this happened, G said that it happened for about 4 years, when he was “ 4, 5, 6, and 7 years old”. He then changed his mind and said it also happened when he was 8 years old; (

d) When asked if he could draw or indicate on his body or her body what his father did, G said that the father put his private parts all over. When asked again, G said the father would place his penis on his arms and legs and motioned like a stroking action; (

e) When asked if the father had placed his penis anywhere else on his body, he said no; (

f) When asked where this had taken place, G said in a public restroom but could not indicate the location. G said nothing else happened in the stall. When asked what the father would say before entering the washroom, G said his father would say, “ lets go to the bathroom” and G would follow him. When asked if the father did anything else after placing his penis on his private parts, like what

people typically do when they use the bathroom, G said that he did not; (

g) When asked if he told his mother about this, he said he did but could not recall when; (

h) When asked if he remembered his prior interview with the police, he recalled going but only that they spoke about things like how he was doing and what his interests were. He could not recall the police officers asking him about a spicy sandwich and he said he did not know what Ms Moses was talking about; (

i) When asked about the most recent event he could recall, G said it was in a family home during Thanksgiving and that the father took him into the bathroom and placed his penis on his limbs; (

j) G said that his paternal aunt saw the father and G. When asked how, G said that she saw them enter the bathroom. When asked if the door was open and his aunt could see what happened he said the door was closed. He also said that his mother was at the home; (

k) Ms Moses asked him if he was willing to tell this to the police and he said he was; and (

l) G then asked Ms Moses if his mother knew that she was there. She told him that his mother did not know but she would tell her later. G looked around and said that he did not like it that his mother did not know. [ 158 ] Ms Moses then consulted with the TPS and was told that the police would not be pursuing this matter further. [ 159 ] Ms Moses spoke to the mother the next day and advised her that neither the society nor the police would be pursuing this matter further in G’s best interests. [ 160 ] Ms Moses told the mother it was up to her if she wanted to pursue a criminal investigation.

The mother stated that, “ when it comes to child abuse, suspected allegations, whatever the case may be, the decision to press charges is not up to me, it is the wellbeing of the child.” [ 161 ] Ms Moses stated that this was the reason that she needed to decide if it was in G’s best interests to begin this process again. [ 162 ] Ms Moses deposed that the mother argued with her that the child was being molested by the father. Ms Moses told the mother that G only disclosed that the father stroked his penis on his arms and legs.

The mother continued to argue and told her that the photos she had previously shown her were being submitted to the family court. The mother stated that the last time the police investigation did not go well as G was intimidated. [ 163 ] The mother brought up the previous allegation about the spicy sandwich and Ms Moses told the mother that those allegations were determined to be unfounded. The mother told Ms Moses that G told her that his father put his penis in his mouth. Ms Moses told the mother that G had not made that disclosure to her.

She also told the mother that when she brought up the reason G had gone to the police, he could not recall going and not even recall even when she mentioned the spicy sandwich. The mother was upset about this. [ 164 ] Ms Moses advised both parents that the allegation was not being verified due to the historical and ambiguous nature of the information provided by the child. The mother was not relieved that sexual abuse was not verified.

The mother wanted to call Ms Moses manager and appeared to be on a mission to make the society see things her way. [ 165 ] The mother did not challenge this evidence in either her affidavit or in her own oral evidence or in the cross-examination of Ms Moses. [ 166 ] Quite strangely, despite another false allegation by the mother, the society then closed its file. Ms Moses testified that the mother was meeting the basic needs of the child and no concerns were being reported.

Despite concerns about the mother’s mental health and her emotional instability, the society felt they did not have enough evidence to substantiate an order for a psychiatric assessment of the mother. Ms Moses explained that closing the file did not mean that the family was not struggling but the family did not want the voluntary involvement of the society and the family did not meet the criteria for court intervention. [ 167 ] I agree with the submissions of the child’s counsel that the society did not provide the services that were required to this child.

It was clear to all of the society workers that the mother was alienating the child through the unverified allegations of abuse and the mother’s unhealthy influence on the child. However, I do not agree that the society did not provide services to the mother. The society attempted to work with the mother, but she was uncooperative. [ 168 ] In hindsight, the society should have much earlier commenced its Protection Application as there was ample evidence at that stage that there was a serious risk of harm to the child. 4.1.

(6) Third police investigation and allegations made March to May 2018 [ 169 ] On February 26, 2018 approximately a month before a court date in the domestic proceedings, the mother reported to the police that the child was now ready to make a disclosure. [ 170 ] On March 2, 2018 Moshan Attique, an intake worker with the society, attended a joint investigation at TPS 32 division with Detective Constable Elena Stepanenko. Prior to the interview commencing the mother stated that she had been told that she could be part of the interview or observe it behind a glass.

It was clarified that she could not do so. [ 171 ] As Mr. Attique, the child and Detective Constable Stepanenko sat down, another constable informed them that she was turning on the camera in the room and left the room. [ 172 ] As soon as she stepped out, G started to cry and said that when he turned 4 it started happening. He said while crying, “ At my 4 th

birthday party, he told me not to tell my mom. Few weeks later, we went to a knife store. He asked them where the bathroom is, then he put his penis on my body.” [ 173 ] At that point the constable came back into the room and said that the camera just started rolling. According to the worker, G then stopped crying and his demeanour changed and he no longer had the same emotional intensity and just waited for instructions. [ 174 ] The video of this interview was also played in court. [8] The disclosures are bizarre, difficult to follow, disjointed and almost indecipherable. [ 175 ] G made the following statements: (

a) G detailed 5 instances of being sexually abused by his father: at a Chuck-E-cheese birthday party [9] , at a knife store, at the paternal aunt’s house, at an army base and at the maternal grandmother’s home. One of those instances also involved a friend of his father’s as well as the father. Another instance involved both of his maternal aunts as well as his father; (

b) G detailed one instance of being kicked and punched by a friend of the father’s in his father’s presence and then being made to observe his father and his two maternal aunts engage in sexual activity; (

c) G spoke of one instance of his father hitting him; (

d) When asked where he learnt the word “molest” G said he learnt the word “molest” from Jim Carpenter who told him that he had also been “molested and raped.” G said that this mother was present in his sessions and that he told James about 4 or 5 months ago but did not tell him the whole thing. In his evidence, Mr. Carpenter denied that he used the words molest or rape with G; (

e) Detective Constable Stepanenko questioned G around timelines and gaps in his story. She read from the previous reports when he said that his mother was acting crazy. G agreed that he said those things but stated that he now knew what was the good and what was not because his mother told him. [ 176 ] The father’s friend and co-worker George testified and denied all of the allegations made against him. He spoke glowingly of the father and his relationship with G. He had seen them at several military family events and other times when the father brought him to the military base.

He confirmed that G had been at his home a few times with his father but as he shares the home with his wife and extended family, they were never alone. Further, the maternal aunts were never at his home and had never met Li until this trial. [ 177 ] The only question asked of him in cross-examination by mother’s counsel was confirming that there were no cameras in the washroom at the military base. I infer that the basis for this question was to point out that sexual activity could have occurred in the washroom without anyone being aware of it.

I find that George was a credible witness and find that there is not a shred of evidence that he ever sexually or physically abused the child. [ 178 ] In a subsequent interview with the child by Mr. Attique, G said that “T” got access on December 5 th [again using the father’s first name] and now there was another court date and they were waiting for judgment.

He was worried he may have to see his father again. [ 179 ] On April 13 th , 2018 the mother was advised that there would be no further police investigation and that the police had no grounds to believe that G had been physically or sexually abused by his father. [ 180 ] The society also did not verify the allegations. It was the opinion of Mr. Attique and Dorian King, his supervisor, that the disclosures were not consistent and G gave the impression of being coached. [ 181 ] On April 16 th , 2018 Mr.

Attique met with the mother and explained that the file was being transferred for ongoing services as the society had concerns about her parenting of G, the repeated allegations of sexual abuse by the father and their impact on G and concerns about the mother’s mental health. [ 182 ] In cross-examination. Ms King confirmed that she had a case note dated March 21, 2018 stating that the mother, “ also made allegations that another boyfriend might have molested G. They are looking to get more information about this.” [ 183 ] Ms King testified that the society should have followed up on this but did not.

She assumed that the police may have followed up as this was a joint investigation. Ms King agreed that this pointed to serious concerns that G may have been molested by another man or because of further false allegations. The mother led no evidence about this allegation and did not explain her comments. [ 184 ] The bulk of the child’s disclosure made during this time period closely resemble the allegations that mother made to her sister in her text and Facebook posts prior to the mother reporting her concerns to the police on January 21, 2017.

G’s narrative became influenced by those around him that is, his mother and Mr. Carpenter. [ 185 ] I find that there is overwhelming evidence that the allegations of sexual and physical abuse against the father, the maternal family and the father’s friend are without any substance.

As soon as the mother was given reasons why allegations of abuse were not verified, the mother made new allegations trying to address those reasons. [ 186 ] I find that the mother has systematically and over time convinced the child that these allegations happened. 4.2 Court ordered access visits [ 187 ] There is a pattern of the mother not co-operating with court ordered access with the father both in the domestic proceedings and then again in the child protection proceedings. The mother provided a variety of excuses none of which I find are credible.

What is clear is that the mother had no intention of permitting the father’s relationship with G to resume.

[ 188 ] The father explained that he had been away on a military training exercise from March 21, 2017 and received the court documents about the restraining order after he returned. The temporary without prejudice restraining order was issued on March 29, 2017 without notice to the father. The endorsement states that there were serious allegations of physical and sexual violence against the mother and the child. [10] [ 189 ] On June 16 th the father returned to Ontario, although the court hearing had been adjourned the father had not filed an Answer.

The father testified that he naively thought he could just come to court, speak to the judge and tell his side of the story. The father’s explanation is consistent with the court order of June 27, 2017 that a final order was made that included a suspension of his access as he had not responded to the Application and why he was given leave to bring an early Motion to Change with material from the society and the police. [ 190 ] On July 17, 2017 the father filed his Motion to Change.

There were several other attendances to deal with procedural issues and disclosure from the society. [ 191 ] On December 5, 2017 an order was made for the father to have access on alternate week-ends for up to 2 hours at Access for Parents and Children Ontario (“APCO”). The mother was to have a neutral third party drop off and pick up the child.

The next court date was March 22, 2018 for the court to review how the APCO visits had gone. [ 192 ] The father testified that he immediately contacted APCO and was told that the custodial parent needed to attend for her intake appointment before he could attend for his intake. The father testified that he then started to get emails from the mother calling him a monster, a raper of children and speak of the disgusting things he had done to their child. [ 193 ] The father testified that he kept calling APCO begging for an appointment as he had been calling since January and was coming from out of town.

He received an appointment on March 6 th at which time he was told that the mother had refused to pay the application fee.

The father testified that he then refused to pay the mother’s fee as he planned to tell Justice Paulseth, the case management judge, what happened when he returned to court on March 22, 2018. [ 194 ] The mother attempted to have the March 22 nd court date adjourned that was opposed by the father. [ 195 ] The father testified that the mother only completed her application that is, paid the fee on March 18, 2018. [ 196 ] The mother’s only response to the father’s version of these events, is in her affidavit where she states that she attended for her intake appointment on January 18, 2017 and encloses her intake form.

However, she does not address the issue of the payment of the application fee. The mother could have easily attached proof of her payment to her affidavit. I draw a negative inference from the fact that she did not provide proof of payment earlier than March and that she did not address this issue in her oral evidence. [ 197 ] The mother’s email to the father dated March 14 th [11] is instructive to illustrate the mother’s attitude towards the father.

It is titled, “To the disgusting shit-face of a person who is no longer considered human” and reads in part as follows: Listen here you piece of shit who molests and rapes children, are you still molesting and raping children T? T- the child molester, you are a disgusting monster inside and out. Your darkened soul is starting to show on your outer appearance. Are you sexually molesting more children T? Are there more victims of your horrific abuse T? You are a nasty, disgusting pedophile who deserves to rot in jail. Do you friends and family know the truth that you really molest children?

You need to admit what you did and are still doing and visit your local police station to turn yourself in. With regards to APCO claims of delays you are referring to on “bad faith” (like you even know what that means with your illiterate and un-educated gimp of a creature self). The rest of the world bases information on facts. Please see list of facts below. [ 198 ] The email continues for another page.

But interestingly nowhere does the mother say she paid the application fee only that she attended at APCO on January 18 th . [ 199 ] Further the mother testified that she earns $30,000 to $35,000 a year and that she paid hundreds of dollars out of pocket to have G seen by counsellors of her choice. She does not explain why she was unable or unwilling to pay the $50 application fee for 3 months. [ 200 ] I find that the father’s evidence on this issue was clear and consistent and not shaken in cross-examination.

I find that the mother purposely delayed the onset of the father’s access at APCO. [ 201 ] The parties returned to court on March 22, 2018, at that time Justice Paulseth ordered that the father have access every Saturday from 1:00 p.m. to 3:00 p.m. supervised by the maternal grandmother.

The first visit was to occur on Saturday March 24 th . [ 202 ] Both the father and the maternal grandmother testified that the visit did not take place. [ 203 ] On March 16 th , 2018 the mother sent the father an email stating that she was aware that there was an arrest warrant out for his arrest. [12] [ 204 ] In the mother’s email to the father dated March 25 th [13] she confirmed that between 1:00 p.m. and 3:00 p.m. on March 24 th she was at the police station notifying them of his whereabouts. She states that he was AWOL from the military and the OPP issued another warrant for his arrest.

She states that she will never allow him to come near her or her child and that he is a fugitive and needs to turn himself into the police. [ 205 ] The mother’s email is titled, “Access denied for T due to confirmed criminal activities/active warrants/fraud investigation/Military Police advises against dropping off child to known criminal.”

[ 206 ] The mother was extensively cross-examined about this incident. She could not offer a cogent response for not attending for the court ordered access. She attempted to rely on the erroneous information she received from Corporeal Fenner. [ 207 ] Corporeal Fenner filed an affidavit and in this proceeding and confirmed that the mother called on March 24 th to ask questions about the father. When the call was transferred to him, he was not given the identifying information and gave her information pertaining to another member of the military with the same surname as the father.

He told her that the other individual he was absent without leave and a warrant was issued for his arrest. The mother called again on March 26 th and again he did not realize they were speaking about another individual. Corporeal Fenner confirmed that none of the information that he provided to the mother pertained to the father and apologized for his error. [ 208 ] In his oral evidence Corporeal Fenner could not recall when on March 24 th the mother called him.

The mother also never explained why she was calling the military police about the father or why no one mentioned this issue when they were in court on March 22 nd . [ 209 ] Based on the evidence presented on this issue I find that the mother had no intention of complying with the court order for the visit on March 24 th . [ 210 ] Both the father and the maternal grandmother continued to show up for the court ordered access visits. On March 31, 2018, the mother did not attend. [ 211 ] On April 7, 2018, the father and the maternal grandmother waited for 2 hours and the mother did not show up.

According to the father’s affidavit the mother sent a blatantly false email stating that she was there. [ 212 ] On April 14, 2018, the maternal grandmother and the father waited for about 20 minutes, the father left as there was a storm coming. About 5 minutes later, the mother showed up and the father was about to turn back when he was told that the mother was refusing to give G to the maternal grandmother. The father considered it in the child’s best interests not to further expose him to an altercation, so he did not return. [ 213 ] On April 21, 2018 the mother and her partner JM arrived.

The father testified that he saw a white SUV abruptly stop and a male who he did not know jump out and begin to shout and scream and hurl insults at both the father and the maternal grandmother. Unbeknownst to the father, the maternal grandmother begins to video tape [14] the scene on her phone. [ 214 ] The mother is seen telling the child to use his words. She is standing outside the car, while her partner continues to scream and yell. JM is belligerent, totally out of control and trying to engage the father.

The father is seen leaning into the car, telling the child he loves him while the child is saying that he is a “ rapee .” The father continues to tell the child that loves him and it is not true. [ 215 ] It is chilling and shocking to watch the mother simply standing by while her child is subjected to this scene. The mother does nothing to stop her partner and does nothing to diffuse the situation. The mother does not encourage the child to see his father or even comfort the child.

It is heartbreaking to see the father pleading with his son. [ 216 ] This piece of evidence is all that is really needed for the court to see the mother’s attitude towards the father’s access to the child. It is disturbing to watch and hard to understand how any mother would subject her child to such a scene. [ 217 ] On April 28 th , there was another scheduled visit.

JM drives up, the child is not in the car and then drives away. [ 218 ] The mother did not deny any of these events or offer any explanations other than that the child did not want to see his father, she respected his views and could not force him. [ 219 ] On May 4 th , 2018 the parties returned to court. The father had filed a motion for access and after a contested hearing, Justice Paulseth ordered that on a temporary without prejudice basis, the father was granted access on alternate week-ends with pick up at school and drop off on Monday morning by the maternal grandmother or the father.

The access was to commence that day. The order provides that the maternal grandmother, maternal aunt and paternal aunt be available to support the child, if necessary. [ 220 ] Despite the fact that the pick up was to be that day at G’s school, the mother did not advise the court or the father that she had changed with child’s school. [ 221 ] The father waited for the court order to be prepared and then attended at the child’s former school.

The father was then told that the child was no longer attending that school and he was directed to a public school close by. [ 222 ] The father along with the maternal grandmother, the mother’s sister and the father’s sister then attended at the new school. They went to the principal’s office and saw the child sitting there with his head down. He did not say anything to them.

The father was told by the principal that he could not release the child as school was over and the child was then in the care of the after-school program. [ 223 ] The father and Li, the mother’s sister went to the child care office and were told that the worker did not have the authority to release the child and she needed to call the supervisor. While they were waiting for the supervisor or the police to arrive, the mother went into the gym where G was and removed him.

She sped away onto the grass of the school yard and nearly hit a small girl. [ 224 ] The next court ordered visit was to take place on May 18 th , the father called the school and was told that the child was not in school that day. As the father lives in Petawawa which is about 4.5 hours away he did not come. [ 225 ] On June 1 st , the father again called the school and as he was told the child was in school, he began to drive to Toronto. He asked the maternal grandmother to pick up G, but he was then told that the mother had come to the school and removed the child.

[ 226 ] No other access took place. The mother asked for a change of workers from Mr. Attiah and Marcia Duncan became the new family service worker as of June 8, 2019. [ 227 ] On June 20 th , the parties were again in court. Justice Paulseth ordered access with Braydon Supervised Access Service. If necessary, the child’s godmother was to be present. Both parents were again to register for APCO. [ 228 ] The Braydon supervised access visit was scheduled for July 15, 2018. The child’s godmother testified that she offered to facilitate the visit and drove the child for the visit at Braydon.

She and someone from Braydon managed to get the child out of the car and into the building. They tried to convince the child to go into the room for a visit with his father. [ 229 ] G said he did not want to go and walked out so his godmother followed him. She drove him to get an ice cream and tried to get him to go back for the visit. She testified that she told him no one was forcing him as he said he felt forced. She told him that someone would be in the room with him and he would be safe.

He appeared upset so she advised Braydon that the child would not be returning. [ 230 ] On July 13, 2018 the society commenced its Protection Application alleging risk of emotional harm to the child. [ 231 ] At the first attendance of the Protection Application on July 19 th , 2018 an order was made that access be in the discretion of the society. Despite this order, the mother refused to contact or cooperate with the society and the society was unable to

schedule any access from mid-July to early August. [ 232 ] On August 3, 2018 Justice Paulseth made a temporary order for access for August 9 th and 10 th from 10:00 a.m. to 12:00 p.m. at the society’s office and for such access to continue every Thursday thereafter. [ 233 ] Although the mother drove the child to the visits, the visits did not take place as the child would not leave the car. The workers who tried to facilitate these visits testified that the mother did not do or say anything to encourage the child to get out of the car or to participate in the visit.

The workers were not prepared to physically force the child out of the car. [ 234 ] When asked in cross-examination what she did to encourage the access visits with the father, the mother testified that she told him, “ if he wants to go he can go.” [ 235 ] On August 20, 2018 the parties were again before the court. With respect to G, Justice Paulseth terminated her previous order of August 3 rd with respect to access to the father.

An access order was made for the child to see his maternal aunt with the visit to be facilitated by the child’s godmother. [ 236 ] Although G was driven to the visit by his godmother, he would not get out of the car. [ 237 ] When asked how his visit with his aunt went, the child indicated that he was “disgusted” that it was something he was asked to do. He said that his aunts and grandmother knew what happened to him and didn’t do anything. He said that he did not know them. He said that he was disgusted at being asked to meet with his father and that he did

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