N.J. v. S.J., 2018 BCSC 2352

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.J. v. S.J., 2018 BCSC 2352 Date: 20181214 Docket: E34319 Registry: New Westminster Between: N.J. Claimant And S.J. Respondent Corrected Judgment: The front page of the judgment was corrected on January 9, 2018. Before: The Honourable Mr. Justice Brundrett Oral Reasons for Judgment Counsel for Claimant: J.J. Hittrich Counsel for Respondent: J.A. Thomson R. Pappas-Acreman, Articled Student Place and Date of Trial: New Westminster, B.C. September 17-21, September 24-28, October 19, 2018 Place and Date of Judgment: New Westminster, B.C.

December 14, 2018 Table of Contents Overview ... 3 Assessing the Evidence .. 4 Hearsay Evidence from the Children . 4 Parental Alienation and Parental Estrangement 8 Credibility of the Witnesses . 9 Circumstances .. 10 Early History: 1994-2008 . 10 2008 Separation . 11 2009-2010: Commencement of Family Proceedings . 12 The 2011-2013 Period . 12 The September 30, 2013 Final Crawford Order 20 Post-September 30, 2013 . 20 The October - November 2014 Disclosures . 22 Events in 2015 . 28

Events in June 2016 . 30 The January 2017 YMCA Incident 32 The December 2017 Incidents . 34 Events in June 2018 . 39 Other Events in the Summer / Fall 2018 . 42 Other Disclosures by the Children . 42 Psychological Reports .. 43 The 2012 Report of Dr. Rebecca England . 43 The 2015 Report of Dr. Alex Kwee . 45 The 2015/2016 Reports of Dr. Nicole Aubé . 46 The 2018 s. 211 Report of Dr. Peggy Koopman . 48

i) Facts in the s. 211 Report 49 ii) Conclusions in the s. 211 Report 51 Factual Conclusions on Family Violence .. 55 Authority to Vary a Final Order .. 57 Application of the Law to the Facts .. 59

Summary of Orders .. 63 Overview [ 1 ] The parties had a 7 year marriage which produced two fine young boys, 13 year old J.J. and 10 year old R.J. The parties separated in 2008. While there have been a multitude of orders in the long history of this file, most recently the parties have been operating, with the exception of brief periods, on the basis of a September 2013 consent final order issued by Mr. Justice Crawford (the “Crawford Order”).

That order granted the parties a divorce and provided for shared guardianship under s. 51 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ] as well as shared parenting time . This aspect of the trial deals with parenting issues only; namely, the application by both parties to vary the Crawford Order based on material changes to the parties’ circumstances since that order was issued. [ 2 ] Both the claimant, N.J., and the respondent, S.J., seek greater parenting time and responsibility. The parties have adopted starkly contrasting positions based upon wholly divergent views of the facts.

Each party seeks to be the primary caregiver. [ 3 ] Resolution of these issues is complicated by allegations of physical, verbal and emotional abuse by the claimant against the respondent; and the respondent’s allegation of parental alienation against the claimant. [ 4 ] The claimant’s argument is based upon the allegation that the respondent has repeatedly engaged in family violence toward the children. The claimant seeks various orders which would provide her with the majority of parenting time and a final say in decisions respecting the children.

She seeks a finding that the respondent has violated the Crawford Order by virtue of his conduct toward the children. [ 5 ] The respondent’s position is based on the premise that the allegations of abuse are false, and that instead the claimant has alienated the children against him. The respondent’s view is supported by the author of the s. 211 report, Dr. Peggy Koopman. The respondent seeks allocation of parenting time and responsibility in his favour. He seeks various orders to remedy what he says is the claimant’s alienating behaviour.

Many of his suggestions are an adoption of the recommendations in the s. 211 report. [ 6 ] At the heart of this case are the best interests of the children, as outlined in ss. 37 and 38 of the FLA . [ 7 ] Both boys have strong views about wanting to live with their mother full-time. The legitimacy of these views is questioned by the respondent and some of the report-writers, most notably Dr. Koopman. Regardless of the truth of the parties’ competing claims, there is little doubt that there has been significant disruption in the relationship between the children and the respondent.

Assessing the Evidence [ 8 ] Before setting out my detailed factual findings, I will comment on three preliminary evidentiary matters: 1) the admissibility of hearsay evidence given by R.J. and J.J.; 2) the nature of parental alienation and parental estrangement; and 3) witness credibility.

Hearsay Evidence from the Children [9] The children did not testify in this proceeding. Instead, the claimant’s allegations of abuse are founded upon their disclosures tothe claimant and third parties over time. Some of the disclosures were made to the RCMP or social workers and are contained ininvestigatory files which were admitted by agreement as business records. These disclosures are hearsay statements and therefore requirecareful scrutiny. [10]

Section 202 of the FLA allows a court the discretion, having regard to the best interests of the child, to admit hearsay evidence itconsiders reliable of a child who is absent.

Section 202 does not contain a necessity requirement. I would have nevertheless concluded thatthe necessity requirement was met by virtue of the fact that it would be potentially harmful for the children to testify in these acrimoniousproceedings: D.A.M. v. D.M.T., 2013 BCSC 359 at para. 23; J.P. v. B.G., 2012 BCSC 938 at para. 114, rev’d on other grounds, 2017BCCA 308; S.F.R. v. E.C.R., (BC SC), [1997] B.C.J.

No. 1830 (S.C.) at para. 42. [11] In addition to s. 202 of the FLA, the hearsay statements of the children may be admissible at common law under the principledexception to the hearsay rule: D.A.M. at paras. 22-26. [12] Many of the guiding authorities focus on the threshold or procedural admission of hearsay evidence: R. v. Bradshaw, 2017 SCC35; R. v. Khelawon, 2006 SCC 57; R. v. Poony, 2018 BCCA 356. Threshold reliability concerns admissibility, whereas ultimate reliabilityconcerns reliance: Bradshaw at para. 39.

In this case, the parties have not disputed the threshold or procedural admissibility of thechildren’s hearsay evidence. Rather, ultimate reliability is the issue here.

In fact, both parties rely on the disclosures for different purposes:the claimant to support allegations of abuse, the respondent to support allegations of alienation. [13] In assessing ultimate reliability, the court is to take a functional approach, focusing on the “particular dangers raised by thehearsay evidence sought to be introduced and on those attributes or circumstances relied upon … to overcome those dangers”: Khelawonat para. 93; Poony at para. 23.

Ultimate reliability—the ultimate determination of the worth of a hearsay statement as probativematerial—is concerned with the degree to which a statement should be believed, and thus relied upon to decide issues in the case. It is forthe trier of fact to determine in the context of all the evidence adduced at trial: Bradshaw at para. 39. [14] I find the factors referred to in P.V. v.

D.B., 2007 BCSC 237 at paras. 18-19 to be helpful in assessing the ultimate reliability ofhearsay evidence from J.J. and R.J.: [18] In this case, the child did not testify and, therefore, the admission of her hearsay evidence is necessary in order to fully consider thequestion of her best interests. The bigger issue is the reliability of these statements. A list of the indicia of reliability of a child's hearsaystatements was given by Dillon J. in S.F.R. v. E.C.R., supra, at [paragraph] 43: The indicia of reliability have been established in R. v. Khan, supra, and in the cases that have applied R. v. Khan.

They include: timing ofthe statement; demeanour of the child; personality of the child; intelligence and understanding of the child; absence of motive of child tofabricate; absence of motive or bias of the person who reports the child's statement; spontaneity; statement in response to non-leadingquestions; absence of suggestion, manipulation, coaching, undue influence or improper influence; corroboration by real evidence;consistency over time; and statement not equally consistent with another hypothesis or alternative explanation [citations omitted]. [19] It is now also clear that other supporting or contrary evidence may also be considered in evaluating the reliability of a hearsaystatement: see the recent decision of the Supreme Court of Canada in R. v.

Khelawon, 2006 SCC 57 at [paragraph] 92-100. [Emphasis added.] See also: A. v. B., 2010 BCSC 566 at para. 44; K.M. v. British Columbia (Director of Child, Family and Community Services), 2004BCSC 560 at para. 46. [15] While I have assessed the children’s statements in regard to these factors and other indicia of reliability, my reasons belowdiscussing the multitude of disclosures may not explicitly address all such factors.

In many cases, however, I find that the children’sstatements are reliable based upon their apparent spontaneity, the children’s circumstances and demeanour, the timing of their disclosures,an absence of a motive on their part to fabricate the disclosures, my acceptance of the reporting witness’ credibility and their lack ofmotive to fabricate the disclosures, the circumstances under which the disclosures were made, corroboration by real evidence, a lack ofsuggestion or manipulation, the consistency of the disclosure accounts over time, and a lack of credible alternative explanation. [16] With reference to consistency, I note that I must not use consistency as self-corroboration or draw the prohibited inference that awitness is more likely to be telling the truth because they repeated the same thing more than once: R. v.

Gill, 2018 BCCA 275 at para. 68.That said, the fact that the boys’ statements are generally consistent with each other adds to the reliability of each child’s individualaccount in some instances. [17] On the other hand, where guarantees of trustworthiness are lacking, hearsay dangers are present, the disclosures lack context, orthe disclosures stem from double hearsay, I would not regard the statements as being sufficiently reliable to be admissible for the truth oftheir contents. [18] In assessing the ultimately reliability of the children’s statements, I am particularly mindful of the respondent’s position that thechildren have been influenced by their mother, the claimant, to make false allegations against him. [19] I am also aware of the suggestion that the claimant may be the preferred parent because she is less demanding and rules-based,while the respondent is far more structured and routine-oriented in his parenting style. [20] Finally, I have had regard to the age and circumstances of the children (including the suggestion that J.J. is a highly intelligentchild) when considering their various disclosures, as well as the vocabulary used by the children.

[ 21 ] Aside from the substantive admissibility of the boys’ hearsay statements, statements that show the boys’ state of mind will also be admissible as a general exception to the hearsay rule where these statements are admitted not for their truth but for the fact that they were said: D.(D.) v. Children's Aid Society of Toronto , 2015 ONCA 903 at para. 39 , leave to appeal ref’d [2016] S.C.C.A. No. 61; D.M. Paciocco and L. Stuesser, The Law of Evidence , 7th Ed. (Toronto: Irwin Law, 2015) at 188; R. v. Starr, 2000 SCC 40 at para. 168 . [ 22 ] The disclosures from the children of family violence are numerous.

While I will recount them in some detail below, I will proceed with caution and accept only some of the disclosures for their truth where indicated. As to the other disclosures, I would either not admit them, or admit them only for the purpose of establishing the narrative of events or the state of mind of the boys regarding the parties. Parental Alienation and Parental Estrangement [ 23 ] The respondent alleges that the claimant has alienated both children against him, relying on Dr. Koopman’s s. 211 report which concluded that both children have become alienated from the respondent.

The claimant denies the children are alienated from the respondent. Rather, the claimant’s position is that the children are estranged from the respondent. [ 24 ] The terms “alienation” and “estrangement” have specific psychological meanings as well as legal significance in terms of remedial action: C.J.J. v. A.J., 2016 BCSC 676 , at para. 1 . In Williamson v. Williamson, 2016 BCCA 87 , at paras. 40-41 , the Court adopted the legal meaning of parental alienation as stated in D.S.W. v.

D.A.W., 2012 BCSC 1522 at para. 64 : [64] At the core of parental alienation, regardless of which doctrinal approach to that subject one is inclined to follow, is the notion that the child's decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason. If there is a reason given by the child for taking the extreme step of refusing to have a relationship with a parent, it will often be out of all proportion to the decision taken. The reasons for such decisions need to be assessed with the particular personality and experience of the child involved.

What may seem a thin or unconvincing rationale for one child may have a much more convincing force in the context of the personality and experience of another child. [ 25 ] On the other hand, a child may be alienated from a parent for good reason. When that is so, it is sometimes referred to as justified estrangement.

It is when the child expresses persistent negative feelings towards, or beliefs about, a parent that appear to have no rational or logical basis in the child's experience of that parent that the estrangement is termed pathological: D.S.W. at para. 28 . [ 26 ] As stated in Williamson , at para. 41 : [41] … the difference between estrangement and alienation lies in the cause; estrangement occurs when the child understandably refuses contact with a parent because of that parent’s behaviour, and there is a logical and rational reason for the child’s rejection of the parent.

In the case of alienation, it is said there is little or no objectively reasonable cause for the child’s rejection of the parent: N.R.G. v. G.R.G ., 2015 BCSC 1062 at paras. 277-278 . [ 27 ] The Court in Williamson held at paras. 47-48 that a finding of alienation is a serious allegation that must be supported by proper expert evidence. Dr. Koopman’s finding of alienation will be analysed with this caution in mind. Credibility of the Witnesses [ 28 ] In assessing the credibility and reliability of the various witnesses, I am aided by the principles outlined in Gill Tech Framing Ltd. v.

Gill , 2012 BCSC 1913 at paras. 27-28 , citing Bradshaw v. Stenner , 2010 BCSC 1398 at para. 186 , aff’d 2012 BCCA 296 and: Novac Estate(Re) , 2008 NSSC 283 at paras. 36-37 . While I deal with the claimant and the respondent here, I will deal with most of the secondary witnesses in my factual findings. [ 29 ] The claimant testified in a sincere, frank manner. Her presentation was that of a concerned mother who was honestly attempting to recall events.

Despite relating several instances of hostility or abuse in her marriage, she did not display animosity toward the respondent and was complimentary of him in several respects. For the most part, she had an excellent recall of events and her evidence did not suffer from major internal or external inconsistencies. She corrected herself where appropriate and acknowledged weaknesses in her evidence. While a suggestion was made in the materials of mental health issues, I saw no indication of any such condition that would impact her testimony or credibility.

Her evidence harmonizes with the evidence I accept from other witnesses. I found her to be credible and I generally accept her evidence. [ 30 ] The respondent testified as well. On critical events, I found him to be defensive, evasive, and self-justifying throughout his testimony. He was eager to be critical of the claimant, seemed overly concerned with managing his appearance to others, and was quick to blame the claimant for the boys’ animosity toward him.

He repeatedly relied upon a lack of Ministry of Children and Family Development (“MCFD”) or police findings when asked about incidents of alleged violent behaviour rather than giving an explanation for injuries to the children. [ 31 ] I accept the claimant’s evidence over that of the respondent where the two conflict. [ 32 ] In terms of the respondent’s evidence regarding his allegations of abuse, there are a great number of incidents where the boys have developed injuries during his parenting time, and I found some of the respondent’s explanations to be strained and unbelievable.

These include the bike helmet explanation for the injury to R.J.’s ear, the “guiding their heads toward their books” explanation to facilitate their studying, the “chair pushing” explanation for R.J.’s leg bruises, and the “accidental flick” explanation for the injury to R.J.’s back. I will detail these incidents further when I address the allegations of family violence.

I also accept on a balance of probabilities the reliable hearsay statements of the boys to the effect that their father was responsible for these injuries rather than the injuries occurring by accident and consequently reject the respondent’s explanations to the contrary.

Circumstances Early History: 1994-2008 [ 33 ] While I will touch on the parties’ history together, I will mostly focus on the post-September 2013 history as the primary issue is whether the circumstances warrant a change to the September 2013 Crawford Order. [ 34 ] The respondent is now 52; the claimant, 53. [ 35 ] The claimant has worked as an assistant location manager in the film industry, as a talent or casting agent, and since 2009, as a mortgage broker. [ 36 ] The respondent is a former body-builder who worked at a bottle recycling business between 1994 and 1996.

He later worked at a credit union as a customer service representative from 1997 through 2001 or early 2002. Since that time, he has been on long-term disability as a result of sciatica nerve problems. He has also reportedly benefitted from successful investments in the recycling industry, investments which he continues to manage and maintain. [ 37 ] The parties originally met in 1994 at the Pacific National Exhibition in Vancouver. The parties dated for a time from 1994 through 1997, but broke up on February 12, 1997 after an argument.

They reunited later that year after a fateful movie date. [ 38 ] The claimant testified, and I accept, that the respondent exhibited controlling behaviour in the early part of their relationship including verbal abuse, easily becoming angry with the claimant, insisting on knowing where she was, and excessively checking up on her. [ 39 ] The parties’ oldest son, J.J., was born [Redacted], 2005. [ 40 ] Unfortunately, the arrival of a child did not assist the marriage and the parties continued to fight.

Their relationship remained rocky throughout 2007 but at some point the claimant formed the desire to have a second child. Though their relationship often lacked intimacy, the claimant became pregnant for a second time. The claimant started to look for a lawyer to separate from the accused but that plan was complicated by her pregnancy. [ 41 ] The parties’ younger son, R.J., was born on [Redacted], 2008. R.J. was born with birth defects related to his esophagus, and the couple struggled with his special needs and supervision during the five months of acute care he required early on in his life.

R.J. had a speech impediment and cognitive challenges at a young age. He has struggled in school to remain at grade level, though he appears to be a vibrant young boy who can make himself understood to a patient listener. 2008 Separation [ 42 ] The parties separated on September 9, 2008 after they got into a fight. I will not attempt to resolve what precisely occurred on that date, or who hit whom first, if anyone.

However, I do accept the claimant’s evidence that she called the police after an altercation, and that she overheard the respondent repeatedly saying to J.J., then almost three years of age, “remember mama hit papa first, then papa hit mama” before the police arrived. [ 43 ] The claimant was arrested and told not to go back home. Charges against the claimant were later stayed by the Crown. She moved to her mother’s house with the children until December 2008 when she moved back to a guest room in the family home. The parties stayed in separate rooms.

In June of 2009, the claimant moved downstairs to the basement with the boys. 2009-2010: Commencement of Family Proceedings [ 44 ] The claimant filed her original family claim in the form of a Statement of Claim on December 22, 2009. The respondent filed a statement of defence on January 20, 2010. [ 45 ] Since that time, there have been various orders respecting parental access and responsibility. [ 46 ] The first order was made at a judicial case conference on July 5, 2010 before Mr. Justice Bowden. By consent, it provided for joint guardianship and shared decision making with respect to the children.

It also provided the respondent daily access to the children during the week and on alternate Saturdays and Sundays, with the claimant to have access to the children at all other times. [ 47 ] The claimant moved out of the family home in June of 2011. I accept the claimant’s evidence that the move was precipitated by verbal altercations between the two parties. The 2011-2013 Period [ 48 ] Beginning in 2011, the boys started to disclose allegations that the respondent was using excessive physical force with them.

In detailing these allegations, I have kept in mind that the issue before me primarily relates to whether a basis has been shown for varying the September 2013 Crawford Order. [ 49 ] In 2011, at an appointment with a genetics doctor, the claimant reported that R.J. stated that “my papa hits me all the time”. The doctor advised the claimant that he had to report the disclosure. While I accept this disclosure was made, there is insufficient detail or context for me to rely on it for its truth. [ 50 ] On August 13, 2011, R.J. came home from a visit with the respondent with a burned hand.

His hand was burned from a candle in

a prayer room at home. I accept the respondent’s explanation that this injury occurred by accident. I do not find this incident impacts my assessment of parenting time and responsibility. [ 51 ] In the fall of 2011, J.J. started grade 1 at [Redacted]. E.H. was the principal there from 2011 until 2016. [ 52 ] A month later, on September 30, 2011, the claimant noticed a mark on R.J.’s right hand near the area which was previously burned. She asked R.J. what happened and he replied “Papa”.

R.J. physically demonstrated his father pressing down with his thumb into his hand because he “no listen.” The claimant took a photo of the injury on September 30, 2011 and that photo was filed in evidence before me. [ 53 ] The respondent denied sticking his nail in R.J.’s hand, and pointed out that the claimant did not call MCFD or the RCMP regarding the incident. I do not accept his denial.

I accept that the respondent caused the injury when R.J. would not listen; however, I have little other evidence as to how, or why, the injury occurred. [ 54 ] On November 4, 2011, the claimant saw a mark on the left side of R.J.’s neck after he came back from a visit with the respondent. She took a picture of it which has been filed in evidence. She asked R.J. what happened, and R.J. replied “Papa hit.” When asked why, R.J. replied “no listen”. [ 55 ] This time, the claimant called the RCMP. An officer, Cst. Hong, came sometime after midnight while R.J. was asleep to investigate the matter.

R.J. was woken up to speak to Cst. Hong about the incident, and was half-asleep during the interview. Cst. Hong also talked with the respondent by telephone, and the respondent was later interviewed by the RCMP. The respondent stated he was concerned the claimant was coaching the children. [ 56 ] The respondent reported at trial that the incident was investigated by the RCMP and the MCFD but no disclosures were made to them and his parenting time resumed. He said he was led to believe that that he did not cause any injury to R.J.; however, the respondent did not outright deny causing the mark on R.J.’s face.

MCFD records indicate that the police interviewed J.J. but he did not disclose any physical abuse to himself or witness any to R.J. [ 57 ] On February 21, 2012, Mr. Justice Brown granted an order for an adjustment in parenting time. That order provided that the respondent would have access to the children on Mondays from 10 a.m. to 5 p.m., Tuesdays and Thursdays from 10 a.m. to 5 p.m., and Friday at 10 a.m. to Saturday at 5 p.m. [ 58 ] On August 20, 2012, the claimant took the children for haircuts and noticed an injury to R.J.’s ears. Again she took a picture and that picture has been filed in evidence.

She asked him how it happened, and R.J. stated “Papa” and gestured as if twisting an ear.

The claimant asked why, and R.J. stated “Get ABC wrong, get numbers wrong.” The MCFD Consultation Report discloses that R.J. also reported to the RCMP on or about August 21, 2012 that “Dadda twisted my ear” and that J.J. disclosed substantially the same information to the RCMP, stating that the respondent slapped R.J. three times on the back of the head and pulled his ear. [ 59 ] The claimant observed that there were different levels to the injury with some portions appearing newer and some older. [ 60 ] The respondent denied responsibility for the injury to R.J.’s ear.

His explanation of this injury is that it occurred as a result of a bike helmet as R.J. had recently been riding his bike for the very first time. I reject this explanation. The nature of the injuries to R.J.’s ear appear unlikely to be caused by a bike helmet as the injury is only on one side of his head, the helmet would likely have had inner padding, it would have had to have been fitted incredibly tight, and R.J. would have almost certainly complained about the discomfort. The respondent did not explain away the lack of these details in his evidence.

I find that the injury occurred as R.J. reported to the claimant; that is, by his father twisting his ear while studying. [ 61 ] The August 20, 2012 incident led to an application to the Court by the claimant. As a result of a report by Dr. Rebecca England in July 2012 (further detailed below), and the incident on August 20, 2012, Mr.

Justice Blok made the following orders on August 28, 2012: • the respondent’s parenting time be supervised until the respondent had completed, and proven completion of, two meetings with a therapist to discuss physical boundaries in the home; • both parties attend and complete the Systemic Training for Effective Parenting (S.T.E.P.) program; and • the respondent attend for a hair sample drug test. [ 62 ] On November 22, 2012, the claimant noticed that R.J. had a red face after picking him up from a visit with the respondent. She took a picture of his face.

When she asked R.J. what happened, he said that he wasn’t listening and “Papa hit”. [ 63 ] When asked about this incident, the respondent said that throughout 2012 R.J. came back from the claimant’s house with scratches on his face, body, and genitals. He suggested that these injuries were caused by her dogs. A review of the photograph indicates that R.J.’s face was not scratched, and the respondent’s explanation that the dogs caused this injury is not plausible. Further, the respondent did not appear to deny that R.J.’s face was red after the claimant picked up R.J. from his visit from the respondent.

It is not explained how a dog could cause this redness, which is consistent with a slap or flat force being applied to the face. I do not accept the respondent’s explanations because the November 22 injury was unlikely to have been caused by a dog, and because I find R.J.’s disclosure reliable. [ 64 ] On March 21, 2013, R.J. returned from a visit with the respondent with redness on his right cheek. R.J. told the claimant that he wasn’t listening and the respondent hit him.

She took a picture of R.J.’s face which has been filed in evidence and shows redness to R.J.’s right cheek. [ 65 ] At the time, the claimant texted the respondent reporting what R.J. had said. He replied, “[N.J.], stop ur lies. They studied and then they played hockey outside. So, pls stop ur lies. Stop texting me with ur nonsense and spend time with the kids.” He also told the claimant to stop brainwashing the kids.

[ 66 ] At trial, the respondent denied slapping R.J. and said he was not aware of this incident. He expressed surprise that the claimant did not report the incident to the authorities. I find that R.J.’s disclosure to the claimant as to the cause of the injury, which is corroborated by the photograph, to be reliable. I reject the respondent’s denial as not credible. [ 67 ] On April 29, 2013, R.J. got into the claimant’s car after a visit with the respondent. The claimant reported that R.J. started to tell her that “Papa hit” and when asked about the mark, R.J. replied “It’s from Papa nail”.

The claimant took a photograph of an injury to R.J.’s shoulder which shows redness in the shoulder area and a cut or scrape along the lower portion of R.J.’s neck. [ 68 ] The claimant texted the respondent asking him why he would hit R.J. across the neck to discipline him because he made some errors in his alphabet. The respondent replied telling the claimant to “stop ur lies. Ur merely making this up”. [ 69 ] At trial, the respondent said that he recalled that R.J.’s injuries occurred when R.J. fell off his chair while studying and he hit his shoulder on the rug or door.

I do not find this explanation credible given the nature of the injury. I do not accept this explanation nor the contention that the claimant fabricated R.J.’s account. I accept R.J.’s statement to the claimant as reliable and find that the injuries to R.J. occurred when R.J. was disciplined by the respondent while studying. [ 70 ] On May 17, 2013, the claimant observed an injury to R.J.’s left ear, photographs of which has been filed in evidence before me. The injury looks like a bruise on the inside of the outer ear with a crusted over abrasion in the photos.

The claimant texted the respondent asking why he was twisting R.J.’s ear again and indicated she was calling the police and that he should not bother to come and get him later that day. The respondent texted back telling her “Stop ur lies”. Apparently the respondent went to the claimant’s home, and then texted the claimant telling her to send R.J. out and to “Pls stop using the kids’ to divert attention from urself”. The claimant texted pictures of R.J.’s ear injury to the respondent asking “how did this happen again”. The respondent replied “[N.J.], stop ur lies. Once again, ur pictures don’t come through.

Where do I pick [R.J.] up from?” The claimant replied, “Right after the police interview him you Bully”. The respondent replied, “[N.J.], is that after u brainwash him? Plse stop using the kids?”. [ 71 ] The claimant did not report the May 17 th injury to the police. In her testimony, the claimant stated she did not think there was any point because R.J. was unable to articulate himself at the time.

She also expressed concern about confronting the respondent over these incidents because it could result in further trouble for the children with the respondent. [ 72 ] Also on May 17, 2013, the claimant told the school principle, E.H., that she was worried about R.J. because she noticed some marks behind his ear. That same day, E.H. became aware that J.J. did not want to go home with his dad and called him down to the office. J.J. had also spoken to J.P., the school counsellor.

J.J. told E.H. that when he and R.J. are studying and R.J. makes a mistake, the respondent waits for R.J. to go to the bathroom, tells J.J. to keep studying, closes the door after following R.J. in, and slaps R.J. To demonstrate the sound he hears coming from the bathroom J.J. clapped his hands, and told E.H. that R.J. comes out crying. Unprompted, J.J. added that when the respondent comes back out, he says “Did you see me hit him?” and J.J. replies “no because I don’t want to get slapped or anything”. J.J. reported that the respondent used to do that to him too, but now he just gets timeouts.

J.J. said the respondent used to twist his ear too. [ 73 ] J.J. told E.H. that “mom has … helped dad stop from doing that. He used to twist my ear, too. I think he’s starting that again”. J.J. reported being afraid of his dad “because he used to slap me before and he might start doing it again if I say yes … that I heard or say anything”. J.J. also told her that he was going to learn self-defence so that when he was older he could protect his brother even more.

The claimant was not present for E.H.’s conversation with J.J. [ 74 ] E.H. was a careful conscientious witness who spoke from a position of responsibility. She had no biases in favour of the claimant. She had a detailed recollection of the children’s disclosures and was paying close attention to their remarks knowing that she would have to report them to the authorities. The boys’ statements to E.H. were made without the presence of the claimant, they were unprompted by suggestion, without leading or manipulation, and there is general consistency with the children’s other disclosures.

I accept the boys’ statements to E.H. for the truth of their contents. I also accept R.J.’s disclosure to the claimant on May 17, 2013, which is corroborated by J.J.’s report to E.H., as reliable. [ 75 ] On May 20, 2013, the claimant noticed another injury to R.J.’s left ear, this time to the top outside of R.J.’s ear. She took a photograph which has been filed in evidence. This injury appears to be a crusted over abrasion.

It is a different injury than the May 17 th injury. [ 76 ] The claimant asked R.J. how the injury occurred, and R.J. demonstrated how the respondent grabbed his ear, twisted it, and that the respondent’s fingernail came into contact with his ear. [ 77 ] The respondent was shown the May 17 th and May 20 th photos at trial and denied twisting R.J.’s ear or causing the injuries.

He did not have an explanation for the May 17 th injury, but noted that he asked J.J. if R.J. had complained about any injury or pain and to both questions J.J. said no. [ 78 ] The respondent testified that after the May 20 th injury, he picked both J.J. and R.J. up from the claimant’s house and took them to the doctor because J.J. was complaining about neck pain from a car accident. He testified the doctor verified that the mark on the ear was not from ear pulling but just from activity.

That evidence was not led before me. [ 79 ] I do not accept the respondent’s explanations for the May 17 th and 20 th , 2013 injuries. I find that the injuries occurred as R.J. described, and I find his accounts reliable. [ 80 ] J.P. started working as a school counselor in September 2012 at [Redacted] Elementary. He interacted with the boys for the first time in September 2013. He interacted with the boys in the early part of his tenure and received several disclosures from them.

Later, the respondent became adamant that J.P. should not interview the boys anymore, and J.P.’s interactions with the boys ceased. [ 81 ] On September 17, 2013, J.P. met with J.J. who reported that the respondent pushed R.J. off a stool the previous day. J.P. called

the MCFD as a result and reported the disclosure. [ 82 ] On September 20, 2013 J.P. documented J.J.’s disclosure on the 17 th . J.P. wrote that: On Tuesday, September 17 th , 2013 [J.J.] reported the following information to me, [J.P.] (elementary school counsellor in Surrey School District #36): [J.J.] said that on Monday after school that he and his brother [R.J.] were working on their homework at the table.

Their father was somehow involved in this homework, and was asking [R.J.] about his work. [R.J.] was unable to speak to his father, or could not space [sic] words (according to [J.J.]) about his homework, so his father became agitated. [J.J.] and [R.J.]’s father then pushed [R.J.] off his chair and on to the ground. [J.J.] said that he wanted to protect his brother from his dad but that he couldn’t, as he is very afraid of his father. [J.J.] also indicated to me that his dad used to hit both of them, but has now stopped due to the court being more involved with his family. [ 83 ] I accept that the claimant did not tell either boy to give this information to J.P. and that J.J.’s report to J.P. is reliable. [ 84 ] As with E.H., J.P. was an independent, highly credible witness.

I accept his and E.H.’s evidence in regard to the disclosures they received from children. The statements the boys made to them were reliable in part because they were made close in time to the incidents occurring, received when the parents were not present, and were made without leading questions. As well, it is apparent that the children came to trust E.H. and J.P. over time. [ 85 ] The respondent indicated he had not previously been informed of the information in J.P.’s September 20, 2013 letter.

He stated that the only time R.J. hurt himself was on April 29, 2013 while studying stating that R.J. fell off a chair by accident. I infer from the respondent’s evidence that he denies pushing R.J. off a chair or stool in September 2013. I reject this explanation and this denial. [ 86 ] In isolation, I would not rely on the above incidents in this matter, which is squarely concerned with whether there has been a material change since the making of the September, 30 2013 Crawford Order.

However, when looked at in light of what is reliably known about the post-2013 incidents of alleged abuse, several of the August 2011-September 2013 incidents reliably fit within a pattern of the respondent using physicality as a form of discipline, a pattern which I find began prior to September 2013 and continued after that time. The September 30, 2013 Final Crawford Order [ 87 ] On September 30, 2013 the parties entered into the consent final order before Crawford J.

That order provided for a joint guardianship model in which each parent could make decisions in the children’s best interests during their parenting time. The order provided for roughly equal parenting time. Both parties now seek to vary the terms of this order in their favour. [ 88 ] Significantly, the Crawford Order also contains the following prohibition on discipline: 3.

BY CONSENT: Neither party shall physically discipline (including slapping, spanking, pinching, scratching, hair pulling and/or twisting ears) the children or either of them. [ 89 ] The claimant testified, and I accept, that this term of the order was very important to her given the historical disclosures in respect of the respondent over-disciplining the children. Post-September 30, 2013 [ 90 ] On November 22, 2013, R.J. allegedly made a disclosure to his kindergarten teacher. He then told E.H. that “papa” pushed him off a chair. E.H. asked the teacher to call MCFD.

The kindergarten teacher did not testify before me and the circumstances surrounding this statement are not sufficient to establish the reliability of the statement. [ 91 ] J.P. testified that on November 26, 2013, R.J. told him that the respondent threw a pen at him. R.J. said it almost hit his eye, that his father threw it really hard, and that his dad pushed him. R.J. asked J.P., “Why hit [R.J.]?”.

MCFD records indicate that both the November 22 nd and 26 th incidents were reported to social workers; however, no action was taken. [ 92 ] On January 28, 2014, J.J. reported to J.P. that two days earlier the respondent pushed R.J. off a chair while he was doing homework. J.J. stated that the respondent yelled at the boys, and was upset at R.J.’s inability to pronounce sounds. [ 93 ] On July 21, 2014, the claimant picked up the kids from the respondent’s care. R.J. got in the car and said “look, mama, oww”. He told the claimant that the respondent slammed his head on the table.

The claimant asked why, and R.J. responded that he got his ABCs wrong. [ 94 ] The claimant took R.J. to the Newton RCMP station and reported the incident. She also took a picture of R.J.’s injury, which is a noticeable bruise at his hairline on the upper left side of R.J.’s forehead. The injury depicted in the photo is consistent with the reported injury. I accept R.J.’s report to the claimant as reliable.

His report to the claimant was unprompted, made soon after the event, and his account is corroborated by the photograph. [ 95 ] While the claimant took R.J. to the police to make a report about the incident, she specifically told Cst. Choi that she did not want the respondent charged; she just wanted the respondent to stop, to take an anger management course, and to deal with the children properly. [ 96 ] The respondent testified that he met with police about the injury to R.J. He denied forcing his sons’ heads on the table as a disciplinary measure.

He stated that when they are not studying, he sometimes guides their head downward. He said that J.J. will sometimes “be somewhere in the sky, not knowing what he’s doing” during study time, and he has definitely put his hand on J.J.’s head to make him look down so that he will study. He admitted that with both kids he will push their head down so that they’ll start concentrating,

and that he has seen teachers do this in school. [ 97 ] I find that the respondent minimized the amount of force he used with R.J. in relation to the July 21 st incident. I accept the truth of R.J.’s report to the claimant, as corroborated by the photo and the respondent himself to a degree. [ 98 ] Approximately three weeks later, in August 2014, R.J. presented with another injury: a scabbed over cut under his left eye. R.J. told the claimant that he had made errors studying and that his dad hit him with the back of his hand. The claimant asked “how?”, and R.J. demonstrated a slapping motion with his right hand.

R.J. pointed at his hand in a gesture the claimant took to mean that the respondent’s ring hit R.J.’s face. Again, R.J.’s account is corroborated by a photograph taken by the claimant which clearly shows a scabbed over abrasion under his left eye. Similar to the July 21 st incident, I accept R.J.’s statement to the claimant as reliable. [ 99 ] On September 23, 2014, J.J. told J.P. that the respondent pushed R.J.’s chin up and down to make him eat faster because he was eating too slow. This disclosure was reported to the MCFD.

However, there is no detail or context to J.J.’s statement, and I cannot accept its truth due to insufficient reliability. The October - November 2014 Disclosures [ 100 ] The respondent gave evidence that on Wednesday October 15, 2014, he picked up the boys after school. He had them overnight, took them to school Thursday morning, and got them back on Friday afternoon. He said that he noticed an injury to R.J. on Wednesday and asked R.J. what happened.

R.J. shrugged his shoulders as if he didn’t know, then said “sofa” and “Mama’s house”. [ 101 ] Later that Wednesday evening, the respondent sent the claimant an email because there had been numerous complaints about him in the past and he did not want to get blamed. The e-mail stated “what happened to [R.J.]’s nose? I noticed that he has a bruise on his nose (see attached photo) and he has been complaining that his head hurts? What happened to him to cause this??”. A picture of R.J.’s face showing a mark on the top left side of his nose is appended to the email.

There is no mention of a couch or a chair in the email. [ 102 ] On Thursday, October 16, 2014, the claimant went to R.J.’s school to drop something off. R.J.’s teacher, T.M., pointed out R.J. on the playground. At that point, the claimant observed R.J. with a mark on his nose. The claimant took a picture of it. That picture has been filed in evidence before me and shows a red abrasion on the left inside portion of the bridge of R.J.’s nose. She stated that she asked R.J. what happened. R.J. replied “Papa mack”.

The claimant said she asked T.M. if the mark was there yesterday, and she replied that it was not. [ 103 ] T.M. testified and confirmed that she saw the mark on R.J.’s nose on what I find was Thursday, October 16th. She had not seen it before. She asked R.J. what happened. R.J. waved his hands, shook his head, and said “no”. He would not answer her. I note parenthetically that T.M. reported that there were days when R.J. expressed a desire to go to the claimant’s house rather than the respondent’s. [ 104 ] E.H. reported speaking to R.J. in her office at the end of a school day around this time.

On the evidence, I find that this must have been either October 16 or 17, 2014. She noticed R.J. had a mark on his nose and asked what he did to it. R.J. replied “papa ring hit mad”. She confirmed the injury she saw was that seen by the claimant and T.M. on October 16 th . [ 105 ] On Friday, October 17, 2014, J.P. observed a cut above R.J.’s left eye and on his nose. He asked R.J. what happened to his nose and R.J. replied, while demonstrating to J.P., “papa hit me. Slapped like this”. J.P. verified that the picture taken by the claimant on October 16 th was the injury he saw.

He also pointed out a cut on R.J.’s head, underneath his hair. [ 106 ] The MCFD records filed before me by the respondent indicate that social workers received a complaint on October 17, 2014, most likely from the school authorities, about R.J. being hit by his father while doing school work. Ms. Bristol Borden, a social worker, interviewed the boys on October 17 th .

Though she did not testify before me, the records of that interview were filed and indicate as follows: Children were interviewed. [R.J.] disclosed that dad had hit him “papa hit him” and demonstrated a swatting motion at the left side of the bridge of his nose. [R.J.] disclosed being fearful of dad, of being fearful of being hit by dad. [R.J.] has a disability which placed limits on the detail of timelines around the incidence [sic]. [J.J.] disclosed that dad is physical with [R.J.], and said that dad has not hit [J.J.] in a “couple years. [J.J.] says he did not see the incident described by [R.J.] that resulted in the mark on the bridge of [R.J.]’s nose. [J.J.] stated he is fearful of dad as dad makes a face that “looks like he is going to hit him”.

Children described dad as getting angry about the children making mistakes, largely around school work and studying. Children were co-operative, and appeared to be genuine and no [sic] coached.

Summary on ICM: [R.J.] disclosed to the interviewing MCFD social worker about being hit by dad in the face, but indicated that it may have been his ring that left a mark or Dad’s finger nail that left the mark on the bridge of his nose. However, in a separate interview with RCMP Constable [Name Redacted] [R.J.] disclosed that he had fallen at his mother home and the mark on the bridge of his nose was a result of this. [Emphasis added.] [ 107 ] I do not accept the respondent’s evidence that R.J.’s nose injury occurred accidentally after coming into contact with the claimant’s couch or chair.

If that were true, there would be no reason for R.J. to report to E.H. and J.P., people whom he trusted and confided, that the respondent hit him. Nor would R.J. have been reluctant to disclose the cause of his injury to T.M. who first noticed the mark on Thursday, October 16 th after the respondent had care of the children the evening before. Nor would he have reported to social workers that his father hit him. [ 108 ] Prior to his interview on Saturday, October 18 th , R.J. gave consistent accounts of the cause of his injury to third parties without involvement of the claimant in any way.

I find that the respondent’s email on the evening of Wednesday, October 15 th was disingenuous

in terms of the respondent not knowing the source of R.J.’s injury. Though I arrive at this conclusion independently, the fact that the respondent has engaged in deception and minimization on other occasions supports this finding. [ 109 ] J.P. reported the matter to the MCFD. The respondent found out on Friday, October 17 th that the boys were going to be interviewed by the RCMP the next day. He brought the boys in to be interviewed on Saturday, October 18 th . [ 110 ] Those videotaped statements were played in evidence before me, as were follow-up video statements taken by police on November 25, 2014.

Both sets of police statements were conducted in a non-leading manner in a comfortable setting after rapport-building techniques and a discussion of the importance of truth-telling with the children. I was able to observe the demeanour of the boys on video, and I find that these statements are admissible for the truth of their contents. [ 111 ] Of note, there is a significant difference between the boys’ October 18 and November 25, 2014 statements. [ 112 ] In R.J.’s October 18, 2014 RCMP statement to Cst.

Gosselin, R.J. at first denies that his father hits him, then states that his dad sometime hits him, “like time out”, and that if he does not study the respondent hits him with his hand in the face. He states that his father only hit him in the face one time. R.J. is specifically asked if the scratch on his nose is where his dad hit him, and R.J. replies “no”. When asked about what he told Ms. Borden the day before, R.J. says “me got up papa hit me a chair hit me”.

Later, R.J. says his father had hit him 1-3 times during study time, and that his father gets madder and madder when he does not get problems right. [ 113 ] R.J. appears anxious in the video. His answers appear rote and are devoid of spontaneity. There is no explanation as to how he would have hit his nose on a chair or couch at his mother’s place. Nor is there an explanation as to why he reported being hit by his father to E.H. or J.P. He is asked specifically why he told Ms. Borden that his father hit him, and he replies that he does not know and that it was the chair.

Though he minimizes his father’s physicality, he nevertheless reports being hit on occasion by his father during study time. [ 114 ] In J.J.’s October 18, 2014 statement, he reported that on Wednesday October 15, 2014 the respondent picked him and R.J. up from school and noticed R.J.’s mark. J.J. indicated he was not there when it happened. J.J. reported that R.J. initially stated he did not know what happened, and then later Wednesday night stated that he ran into a couch at the claimant’s house on Tuesday.

He stated that his father took pictures because he was worried about getting blamed. [ 115 ] J.J. reported speaking to J.P., and becoming aware that R.J. had reported to J.P. that the respondent was responsible for the injury to R.J.’s nose, but that J.J. did not see it happen. He also reported speaking with Ms. Borden, and being aware that R.J. told her that the respondent hit him, though J.J. said he didn’t really think this had occurred. [ 116 ] In that October 18, 2014 statement, J.J. reported that his father is good at home, that he is not scared of him, and that he used to raise his voice.

The interviewing officer asks, “You guys sometimes get scared of him like?” J.J. responds, after an initial denial, “Well maybe when he raised his voice we really just get … Like we get what’s gonna happen … like we get nervous and everything”. He reported that when R.J. makes mistakes, his dad fools around and just goofs off. [ 117 ] J.J. appears eager to explain away his dad’s behaviour and cover for him in his October 18 th statement. J.J. is very dismissive about problems at home.

His statements stand in stark contrast to the preponderance of J.J.’s other accounts that I accept as reliable, and in particular his November 25 th account. [ 118 ] In all the circumstances, I infer and find as a fact that the respondent’s presence with the children leading up to their October 18, 2014 statements influenced the children, if not explicitly, then implicitly, to minimize the violence the respondent inflicted upon them. [ 119 ] On November 25, 2014, the boys were again brought to the RCMP station and made further videotaped statements, which were introduced into evidence and which I accept for their truth for reasons similar to the October 18 th statements. [ 120 ] In R.J.’s November 25, 2014 interview, he indicated that the respondent hit him and pushed him a long time ago.

He talked about being hit by his father when doing ABCs in grade 1, and that his father then pushed J.J.’s head into the table. He reported that the respondent gets mad when they get something wrong. He said that his papa hit him and indicated he was hit on the cheek, nose and hand. He further stated that his father has a ring on his finger that hit him on the nose. He said that his dad’s ring hit him. On one occasion, he described the respondent pushing him off his chair and pushing him down on his neck. [ 121 ] R.J. reported that the claimant does not do any hitting.

When asked if there was anything he didn’t like about his mom, R.J. replied “nothing”. [ 122 ] R.J. reported telling people at school about his father. He said that one time his father hit him in a back-handed manner, and pushed him. He said he felt safe at his mother’s house, but shook his head firmly and negatively when asked if he felt safe at his father’s house. [ 123 ] J.J.’s November 25, 2014 video statement was admitted at trial, despite an objection that it was introduced too late in the proceedings.

The substance of J.J.’s statement on November 25 th contrasts to his October 18 th statement. [ 124 ] The conversation in his November 25 th statement starts with rapport-building questions. The tone is free-flowing with J.J. at obvious ease with the interviewing officer and giving spontaneous answers which show no sign of being rehearsed. He is not disparaging against his father, nor does he appear to have an agenda against him. [ 125 ] In the November statement, J.J. reports that his dad gets mad really easily. When R.J. makes a mistake, sometimes he pushes him off his chair.

He states that his father also does that to him and pushes his neck to force him down. When the boys are studying at the table, and he doesn’t understand something, his father will get mad at him. His father calls him a “dog” in the Indian language. He said this behaviour has been going on for a long time but recently stopped, though his father still pushes his neck down and calls him names.

[ 126 ] He reported that one month ago, when he was studying with R.J., he read a story and that his father got really frustrated. His father told him he had peas for brains, pushed his neck, and pushed his binder off the table.

He also reported that 3-4 months ago, his father pushed R.J. off his chair and said “I didn’t do anything right?” J.J. agreed with his father that he didn’t do anything in order to protect himself and because he was afraid to express himself. [ 127 ] J.J. reported that 4-5 months ago, R.J. told him that he was sitting wrong, and the respondent pressed R.J.’s neck down and banged his head on the table. [ 128 ] J.J. reported that when he was 5-7 years old, his father used to hit him with his hand or push him, especially when studying. Sometimes he would hit him in the face. Sometimes, he would push his chair.

Now, the respondent no longer hits J.J. but he pushes his binder and his neck, which causes “pain and stuff”. J.J. reported his father regularly makes faces at the boys with his lips pulled and his teeth out. [ 129 ] J.J. said that things have been getting better because the claimant had been reporting everything and was trying to help him and his brother. He felt safe at his mother’s house, but not at his father’s house when his father was angry. [ 130 ] He reported that he had told his counselor, the claimant, and the police about these incidents.

He said his counselor tried to relax him and R.J. and take their minds off things, but as of 2-4 weeks ago his dad said they were no longer allowed to go see the counsellor.

Events in 2015 [ 131 ] In early 2015, the claimant met with E.H. and J.P. who advised her they had concerns about disclosures from the children and would be reporting their concerns to the MCFD. [ 132 ] On June 24, 2015, the claimant filed a Notice of Application to suspend the respondent’s parenting time, and in the alternative, that his parenting time be supervised pending the s. 211 assessment by a psychologist. [ 133 ] On June 26, 2015, after hearing viva voce evidence from E.H. and J.P., Mr. Justice Joyce suspended the respondent’s unsupervised access to the children.

He ordered that: • The children be seen by and receive counselling from Dr.

Nicole Aubé, the costs of which to be borne equally by the parties; • For the next six months, that the respondent’s access to the children be supervised, and that his access shall not continue until it is supervised; • The specific arrangements respecting supervised parenting time and mutually agreeable supervision be made by counsel with liberty to apply; • The respondent engage a registered psychologist for personal therapy as required by paragraph 13 of the Crawford Order, and once the Court had a preliminary report from a registered psychologist respecting the respondent’s parenting abilities and any risk that he may present to the children, the Court could revisit the matter. [ 134 ] L.S. testified for the claimant.

He is a friend of the claimants who was retained by her to assist with her family litigation. L.S. is also a private investigator and ex-RCMP officer with considerable experience in investigating major crimes from 1969 through 1982 including sexual offences and serious violent crime. L.S. impressed me as a cautious, careful witness, with excellent recall and no sign of exaggeration in his evidence. I accept his evidence without hesitation. [ 135 ] On July 2, 2015, L.S. was with a group of adults including the claimant at the back yard of the claimant’s residence in Surrey.

R.J. was spraying water, and when told to stop he grabbed a steak knife and started shouting that “this is what he would do to papa, if papa doesn’t stop hitting him.” L.S. observed that R.J. was near violent and was out of control. It took the adults about 20 minutes to calm him down, refocus him, and return him to his normal state. [ 136 ] I find the disclosure to L.S. to be reliable.

It was spontaneous, unprompted, unsuggested, reported by a credible witness, and consistent with the claimant’s description of what R.J. told her. [ 137 ] L.S. testified and I accept that he never observed the claimant making negative comments to the children toward their father or otherwise attempting to influence the children. He heard the claimant tell the boys that they should listen to their father, to which R.J. replied “why does papa hit me then if he loves me”. [ 138 ] On December 23, 2015, Mr.

Justice Jenkins ordered a variation of parenting time by deleting the requirement for supervised access for the respondent, and ordered the respondent to have regular and ongoing unsupervised access to the children. Events in June 2016 [ 139 ] By early June 2016, the children were starting to refuse to see the respondent. On June 2, 2016, J.J. texted the claimant saying “Mom I am really scared of dad. He us [sic] starting to get really mad and angry.

I don’t know what to do”. [ 140 ] On June 3, 2016, the claimant e-mailed a social worker stating that J.J. was refusing to go to the respondent’s residence as he felt he and his dad would have a confrontation. The claimant indicated she had left voice messages for two other social workers the previous day, but had not yet heard back from them. [ 141 ] Around this time, in early June 2016, J.J. disclosed to the claimant that the respondent had tried to grab him in the school yard and that he ran away.

[ 142 ] On June 9, 2016 J.J. texted the claimant that “I am not okay going to my dads house I am terribly scared I am at friends house”. He stated he was going to a friend’s house with R.J. because he was terrified. [ 143 ] On June 22, 2016, E.H. summarized her concerns in a letter which she adopted at trial. She indicated that over the past number of years she had earned the trust of the boys, and was now their “go to” person as J.P. was no longer at the school. E.H. indicated as follows: To my knowledge, [J.J.] and [R.J.] were in the custody of their mother since last June 30 until after the Christmas break.

Beginning in mid-November, the boys began to seek me out to discuss their fears about having to go back to their father’s home (he regained joint custody). Early in the New Year, their fears and anxiety increased significantly to the point of them coming to speak to me every time it was going to be dad’s turn to pick them up. I listened without judgement. The words from both (although I never spoke to them at the same time) were consistent; dad was making threatening gestures, making faces, swearing at them, calling them liars etc. Both boys were visibly anxious and nervous and often asked if they had to go.

A few disclosures from the boys recently include: 1) When dad took them to a swimming pool he became angry that they were taking a long time to get ready and he shoved/pushed [R.J.] in to the lockers 2) The boys were playing basketball at dads. [R.J.] was taking a “granny shot”. This is where he throws the ball with two hands swinging between his legs and releasing. He said dad grabbed his neck and pushed his jaw up and called him a “dog” in Punjabi. 3) Last week dad came to pick the boys up from school. [J.J.] refused to go. He went outside to play and his dad went looking for him.

His dad grabbed him firmly enough for his shoulder to hurt. [J.J.] rolled to the ground and ran in to the school and came and shared this with me. Most recently, [R.J.] asked to see me and said, “If Papa loves me, why is he so mean and hurts me”. This was indeed heartbreaking. I did my best to respond without judgement, making a general comment that sometimes parents get frustrated and say/do things they are not proud of. Also, to also remember that no one had the right to harm them.

I have been in ongoing contact with MCFD over the years and have made numerous reports that speak to the ongoing challenged faced by the children. It is my sincere hope that these young boys are heard. They are bright, caring and deserve the kindness and respect of all. [Emphasis added.] [ 144 ] As with E.H.’s other evidence I find this letter to be a reliable indication of the respondent’s conduct towards the boys for much the same reasons: they were unprompted declarations, made without the presence of the claimant to a neutral, unbiased party and without leading or suggestive questioning.

Further, these statements were made in a relatively timely way in relation to the incidents in question. [ 145 ] As of June 2016, the claimant testified and I accept that she mistakenly did not think there was a court order in place providing the respondent with access to the children. It appears that the respondent formed the belief that the claimant was interfering with his parenting time, and the matter went in front of Mr.

Justice Saunders on June 30, 2016 on a short leave application. [ 146 ] On June 30, 2016, Saunders J. ordered that the respondent would have sole custody of the children, and the claimant would have specified parenting time on alternating weekends.

No appeal was taken from that order; however, on July 12, 2016, Saunders J. issued reasons reconsidering his earlier order after further reflection and coming to the conclusion that the June 30 th order represented too great a change in parenting arrangements, having regard to the children’s best interests. [ 147 ] Saunders J. was satisfied that the claimant had not done everything in her power to see that the children had scheduled parenting time with their father. He amended his earlier order to restore the previous orders of the Court as to parenting time. He ordered the parties to implement a

schedule of make-up time for the respondent, and urged the parties to make arrangements for the children to have regularly scheduled counselling. The effect of the July 12, 2016 Saunders order was to reinstate the Crawford Order as to parenting time and responsibility. The January 2017 YMCA Incident [ 148 ] On January 29, 2017, the claimant picked the boys up from the respondent’s house after the respondent had them for five days. On the way home, R.J. disclosed to the claimant that the respondent had pinched him and pushed him into something.

R.J. explained that while they were swimming at the YMCA, R.J. came out without drying himself properly. The respondent got mad, pinched him in the back, and pushed him hard at the same time. R.J. showed the claimant an injury to his back which she photographed. That photo shows an irregular shaped bruise on the child’s mid to upper back. The claimant reported the incident to police. [ 149 ] J.J. reported to the claimant that he was in the change room and heard something but did not see anything. [ 150 ] L.S. heard about the YMCA incident.

While he had in the past endeavoured to avoid talking to the boys about allegations of abuse, on January 31, 2017 L.S. arrived unannounced at the claimant’s residence and asked to talk to the boys. He picked up R.J. and went for lunch at a local restaurant as he had done before. Upon sitting down, R.J. told L.S. that he was at the YMCA pool in the dressing room, his dad got mad at him for being slow, he was in his trunks and as he was taking them off his dad pushed him toward the wall, twisting his skin, and leaving a mark on his back. His dad also spat on him and yelled at him.

L.S. asked if anyone else was present, and R.J. answered negatively, stating that his brother was outside. [ 151 ] L.S. indicated that R.J. expressed himself in a serious tone of voice. He did not get any indication that R.J.’s story was scripted, and the claimant did not know he was going to interview R.J. The evidence establishes that R.J. was comfortable with L.S. and had no reason to mislead him as to the incident. R.J.’s conversation was not affected by prompting or suggestion, and is consistent with the claimant’s description of what R.J. told her happened at the pool.

I find R.J.’s statement to L.S. on this occasion to be reliable. [ 152 ] I do not accept the respondent’s explanation for R.J.’s injury. The respondent testified that during his time with the children at the end of January 2017 J.J. started flicking people in the head. He testified that “just like they have marble season, they have flicking season, among other things, in schools.” He told J.J. not to do that, but he continued. Later, while putting the kids to bed, he was giving R.J. a massage. J.J. unexpectedly “flicked” him which caused him to accidentally pinch R.J. The respondent is a large man.

J.J. would have been 11 years old at the time. I do not find it credible that the respondent would have reacted to J.J.’s “flick” by accidentally causing an injury to his other son. I do not accept his explanation for R.J.’s January 2017 injury which I find completely at odds with R.J.’s statement which I

accept. In any event, the respondent’s explanation is highly unlikely even standing on its own. [ 153 ] I find that the essential features of the January 2017 incident are proven including the fact that the respondent became angry with R.J. while at the pool, pushed him, and pinched his back. [ 154 ] This incident prompted an application in front of Mr. Justice Betton. On March 13, 2017, Betton J. ordered a s. 211 assessment, and disclosure of the MCFD and RCMP records related to the January 2017 incident.

While the order for a s. 211 report was made at that time, the parties did not press for the appointment of a psychologist to complete the s. 211 report until January 2018 when Mr. Justice Crossin made a further order for the appointment of Dr. Koopman. [ 155 ] The claimant points out that despite the January 2017 incident, she did not apply for full custody or suspension of the respondent’s parenting time. The Crawford Order with its prohibition on discipline continued to apply respecting parenting arrangements. The claimant’s muted response to the January 2017 incident is inconsistent with Dr.

Koopman’s characterization of her behaviour as alienating, as further discussed below. The December 2017 Incidents [ 156 ] On December 14, 2017, yet another incident occurred after the respondent had care of the children over the preceding weekend. J.J. called the claimant reporting that his father had hit him, that he was on the street, and asked her to come and pick him up. J.J. went to a nearby school and the claimant called the police.

The claimant later arrived at the school where both children were waiting. [ 157 ] J.J. reported to the claimant that he was playing basketball at the respondent’s house when his father tried to pull him into the house. He got away and ran toward the garage door. At that point, the respondent hit him in the back a couple of times with an open hand, and yanked on a bag J.J. was carrying on his shoulder. J.J. managed to run away, went out onto the street, and called the claimant. [ 158 ] The police came to the scene at the school, as did the respondent and K.U., the respondent’s current spouse. Cst.

Lazaruk of the Surrey RCMP testified that upon attending the scene, he encountered J.J. sitting outside in cool weather wearing a t-shirt and shorts. J.J. reported to Cst. Lazaruk that his father wanted him to do homework, but he wanted to play on his phone and go outside, to which the respondent became upset. J.J. stated that he went into the garage of the house where he attempted to put his school bag on his back. J.J. stated that he proceeded to leave the garage and to go outside, when the respondent hit J.J. in the back and pulled the school bag off of his back.

J.J. then stated that he was slapped on the bum once. J.J. said he dropped his school bag, ran outside, and ran away. This account is largely consistent with J.J.’s earlier disclosure to the claimant and his later statement to police in January. [ 159 ] While on scene, Cst. Lazaruk discussed a safety plan with both parents. He decided that there was no police enforceable action to remove J.J. from the custody of the respondent.

All parties agreed and the police left J.J. in the care of the respondent and K.U. for the night. [ 160 ] The claimant took J.J. to Surrey Memorial Hospital on December 15, 2017, after he complained of back pain at school as a result of the alleged assault. The hospital records indicate that there was no obvious bruising to J.J.’s back but that he was finding it uncomfortable to sit down. [ 161 ] Cst. Lazaruk again spoke with the respondent on the night of December 15 th .

The respondent denied hitting J.J. in the back, but did admit to spanking J.J. once on the bum. [ 162 ] The December 14 th incident led to further proceedings in court. On December 20, 2017, following a without notice hearing, Madam Justice Brown ordered that the respondent’s parenting time be suspended. [ 163 ] On December 27, 2017, the respondent applied before Mr. Justice Affleck on a without notice basis for reinstatement of his parenting time. Affleck J. set aside the order of Brown J. made on December 20 th .

He ordered that the Crawford Order together with the Safety Plan of the MCFD dated December 22, 2017 was to govern the parties’ parenting arrangements. Affleck J. included a police enforcement clause in his order. [ 164 ] J.J. was interviewed in detail about the December 14, 2017 incident on January 26, 2018. This interview was videotaped. Although the passage of time is a concern, I have viewed the videotape of J.J.’s interview which was introduced into evidence by agreement.

The statement is detailed and conducted in a non-leading way after suitable rapport-building and a discussion of the importance of truth-telling. J.J.’s answers are relatively unprompted and timid when recounting events though he has a free flowing style. [ 165 ] In his January 26 th statement, J.J. recounted that on December 14 th there had been an argument in the car about R.J. losing his glasses while playing at school. J.J. asked for the yelling to stop. The respondent told J.J. not to intervene.

When they got home, J.J. was scared of what the respondent was going to do and didn’t want to go inside, so he started playing basketball. The respondent wanted him to come inside and do his homework. J.J. refused to go inside; he was still scared and did not know what the respondent was going to do. [ 166 ] A dispute occurred between the respondent and J.J. The respondent hit J.J. a few times on the arm. The respondent grabbed his basketball, and then grabbed his bag, which contained his clothes and shoes, and put it outside. J.J. started to text the claimant about the respondent yelling at them.

The respondent came outside while he was texting, prompting J.J. to try and call the claimant. The respondent asked who he was calling, and told him to shut the phone off. [ 167 ] The respondent went back inside and locked J.J. out of the house. Twenty to thirty minutes later, the respondent came back outside. J.J. went around the back of the house, entered the house, then locked the respondent out. The respondent told him to unlock the door or he would “get” J.J., that J.J. would regret it, and that he would pull J.J.’s hair out. [ 168 ] J.J. ran to the garage door and unlocked it.

The respondent caught J.J. in the garage, grabbed his bag, and ripped it off of him. J.J. reported that the respondent hit him on the butt lightly with an open hand, then fully hit him in the lower back and then hit him again with

his metal bracelet. These hits were more forceful than a spanking. J.J. then tried to call the claimant, telling the respondent that he would tell her about being hit and that he was scared. The respondent started chasing after J.J., and J.J. ran away from the house. [ 169 ] J.J. eventually went to a nearby school and called the claimant to pick him up. The claimant called the police. The police then attended the scene, and J.J. gave a statement about the events that occurred. He reported being sore the next day. [ 170 ] J.J. said he was worried because the respondent kept yelling at him and his brother.

He also reported the respondent being angry with him during the incident. J.J. reported that the claimant told him that he had no choice but to go with his dad so he went back home with the respondent. J.J. reported that he preferred living with his mother because he doesn’t get yelled at, and if he does something wrong she tries to help. He described the respondent’s approach as “you have to do it this way or it’s wrong. It’s always his way or the highway”.

J.J. said he did not want to see the respondent, at least not until he was an adult, because the respondent hits him and yells at him, and because the respondent is not supportive. [ 171 ] I note that J.J. made a similar disclosure to K.K., a friend of the claimant. While K.K.’s evidence is arguably biased, given her dating relationship with the separated husband of K.U., I accept her evidence on this point. [ 172 ] The respondent’s version of the December 14 th incident is set against the backdrop of his report of having problems with J.J. the previous day.

On the afternoon of December 13 th , R.J. was crying because the respondent wanted him to wear a jacket outside, and he told both R.J. and J.J. to come inside. J.J. was defiant, but the respondent said “if you don’t come in right now, I’m going to take you in.” J.J. responded, “what are you going to do, you can’t hit me”. The respondent said he did not want to make a scene and eventually J.J. came inside. [ 173 ] On December 14 th , the respondent reported that J.J. was again being defiant and was refusing to come inside.

This led to a confrontation in the garage where the respondent took the strap of J.J.’s bag off him, and J.J. swore at him. The respondent testified that J.J. called him a “kuta” (dog in Punjabi) and the respondent told J.J. to watch his language and not to speak to him like that. [ 174 ] J.J. then replied, “what are you going to do? You can’t do anything, are you going to hit me?” twice. The respondent replied that he could hit him because he was told by many people, including in the S.T.E.P. class, that you can hit a child on their bum as long as it’s done with an open hand.

The respondent testified that he only hit J.J. once, by slapping him on the bum. He says he did not hit J.J. on his back, and that he hit J.J. not out of anger but to show him that he was in control. [ 175 ] After that, the respondent attempted to bring J.J. back into the house but he said “I don’t want to go inside right now because I want to cool off.” He said that after a half hour or so, he got concerned about J.J. not coming in, and he sent K.U. and her daughter to look for him.

He was then called by K.U. reporting that J.J. was in the back of a police cruiser, and he went to attend the school nearby. [ 176 ] J.J.’s statements to the claimant, Cst. Lazaruk, and to the RCMP officer on January 26, 2018 are reliable. The circumstances surrounding his statements support their reliability, including the lack of involvement by the claimant in the statements to police, the non- leading nature of the questions, and the relative spontaneity in his statements. I accept his statements for their truth. J.J.’s statements are consistent with much of the respondent’s evidence.

The material departure from the respondent’s account is limited to the degree and frequency of force used by the respondent. The respondent’s evidence does not account for the injury to J.J.’s back, which I find occurred and caused discomfort to J.J. at school the next day resulting in his complaint of ongoing discomfort at his hospital visit. [ 177 ] I find that the respondent applied force to J.J. in the manner J.J. described, and that this application of force caused the injury to J.J.’s back. I accept that the respondent chased J.J. in or near the garage, caught him, and applied force to him.

I accept that this altercation may well have occurred when J.J. was being defiant. Nevertheless, the application of force in this manner is clearly contrary to clause 3 of the Crawford Order which indicates that “Neither party shall physically discipline (including slapping, spanking … ) the children”. [ 178 ] Even if I were to accept the respondent’s own evidence at face value, I would find that he violated the prohibition on spanking in the Crawford Order in the December 2017 altercation with J.J. Events in June 2018 [ 179 ] On June 13, 2018, J.J. sent the claimant a video of R.J. crying.

In the video, J.J. asks R.J. what happened and R.J. states he was pushed and hit, a

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