Windsor-Essex Children’s Aid Society v. J.S., 2023 ONCJ 333

WARNING The court hearing this matter directs that the following notice should 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: Windsor-Essex Children’s Aid Society v. J.S., 2023 ONCJ 333 DATE: April 11, 2023 COURT FILE No.: FO-21-000000-21-00000 BETWEEN: Windsor-Essex Children’s Aid Society

Applicant, — AND — J.S. Respondent, M.D. Respondent, Walpole Island First Nation Respondent Before Justice S. Bondy Heard on July 5 th , 2021, August 3 rd to August 6 th , 2021, October 5 th to October 8 th , 2021, November 16 th to November 18 th , 2021, January 11 th to January 12 th , 2022, January 14 th , 2022, and April 25 th to April 26 th , 2022 Final Written Submissions received September 9, 2022 S. Hurley……….. counsel for the Applicant, Windsor-Essex Children’s Aid Society C. Redmond……………………………………….………..counsel for the Applicant, J.S. P. Rowley ……………………………………………..counsel for the Respondent, M.D. C.

Johnson …………………counsel for the Respondent Walpole Island First Nation P. Kondruk……………………………..counsel for the Office of the Children’s Lawyer BONDY, J.: REASONS Introduction:

[ 1 ] This is a Protection Application that was commenced January 25 th , 2021. The Applicant is the Windsor- Essex Children’s Aid Society (Hereinafter the “ Society ”). The child who is the subject of these proceedings is A.D. who was born […], 2014. [ 2 ] His parents are J.S. (the “Mother”) and M.D. (the “Father”). The parties to this Protection Application are the parents and the Walpole Island First Nation as A.D. and the Mother are band members. The Office of the Children’s Lawyer represented A.D. throughout these proceedings. [ 3 ] The Society seeks a finding of protection under s. 74 (2) (

h) of the CYFSA which reads that a child is in need of protection when “there is a risk that the child(ren) is/are likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self- destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child(ren’

s) parent or the person having charge of the child(ren)”. [ 4 ] In the event of that finding, the Society by its Answer seeks an Order having the child remain in the care of his Mother, subject to terms of supervised access to the Father. [ 5 ] The Mother by her Answer concurs with this request. [ 6 ] The Office of the Children’s Lawyer concurs with that request. [ 7 ] The Walpole First Nation concurs also. [ 8 ] The Father by his Answer seeks a dismissal of the Protection Application stating there is no basis to the finding of protection sought and seeks an Order that A.D. remain with his Mother subject to supervision of the Society with unsupervised access to the Father. [ 9 ] Given the complexity of the evidence, I conducted a bifurcated hearing with the evidence relating to protection only being first heard.

This is my Ruling and Reasons on that finding. Background: [ 10 ] A.D.’s parents were never married, they resided together for a period of time and ultimately separated sometime around 2017. They have been involved in litigation ever since that separation relating to issues of custody and access (now described as decision making and parenting time) of A.D. An Application under the Children’s Law Reform Act resulted in an Order of custody to the Mother made by Tobin J. on May 18 th , 2018. I issued a consent Order on June 18 th , 2019, providing the Father with supervised access on alternate Sundays.

The parties had attended for mediation and resolved the issue of the Father’s access even though a trial of the issue had been directed by Tobin J. [ 11 ] By 2019, competing Motions to Change were initiated by the Mother and Father as the party supervising A.D.’s access was no longer willing to do so. I gather that the loss of this supervisor and the Father’s corresponding loss of access time to A.D. generated this new litigation.

By interim Order of December 16 th , 2019, Vickerd J. varied my Order and allowed for two other persons to supervise the Father’s visitation to A.D., namely, A.D.’s grandmother and uncle. [ 12 ] On March 27 th , 2020, Phillips J. made a further Order varying the interim Order of Vickerd J. in the face of cross motions and competing conflictual Affidavits by the Mother and Father. Justice Phillips’ Reasons are detailed and instructive. He noted that Tobin J. had stated that “ The Father fairly and candidly stated that he is not opposed to Ms. S. having custody of the child.

What he wants is an opportunity to play a significant role in the life of his child. ” He noted that my final Order of June 18 th , 2019, was on consent. He noted that on both occasions, the Father chose to concur in a Consent and did not engage in litigation. [ 13 ] He also noted that Vickerd J. had previously made an Order for the appointment of the Children’s Lawyer which resulted in an investigation being pursued. She dismissed the Father’s interim claim for custody before her.

A CAS investigation at that time was noted as identifying post separation conflict as being “verified” but “A.D. [does] not appear to be overly affected at this point. ” He also noted the dismissal of criminal proceedings against the Father in which the Mother was the Complainant. He noted that some of those charges were dismissed, one was withdrawn and there was a Crown request to dismiss the remaining counts. He considered that direction by the Crown as “remarkable” and “exceptional”, but his reasons do not elaborate what evidence was before him to draw that conclusion.

He noted specifically that the Father’s Form 35.1 Affidavit before him revealed no criminal record or pending criminal charges. In the face of the pandemic and the unworkable arrangements related to exercising access at a community-based access centre and the evidence that A.D. was enjoying time with his Father, he allowed for both compensatory and unsupervised access by the Father to A.D.

I note with emphasis “ provided that his Father does not expose his son to the ugliness of the custody and access litigation”. [ 14 ] He also said this: “If this child is at risk, it is in consequence of being at the center of a litigation war between his parents. A.D. must not be caught in the crossfire. Both the adults are culpable in this respect”. [ 15 ] A trial of the issues addressed in the competing Motions to Change was heard by Ross J. on October 19 th , 20 th and 21 st of 2020.

Justice Ross’ Reasons of June 2 nd , 2020, reflect that she faced a confusing quagmire of proceedings, evidence and positions advanced by the Mother and Father. Nonetheless, her Reasons are detailed and instructive. [ 16 ] Her findings note that there was general disagreement between the Mother and Father about the periods of time they lived together, how well or how poorly A.D. was taken care of, why they separated and who was the primary parent during the time they lived together.

By the time of the hearing, the Mother was proposing unsupervised access to the Father, however her trial testimony and her original Motion to Change sought supervision over the Father’s access as the Mother claimed she was fearful of the Father and her son. Justice Ross noted that at the same time the Mother did not give any evidence or call any evidence from a third party as to why, after several months of unsupervised access, she was now seeking supervised access.

These were deficiencies noted by Justice Ross. [ 17 ] In commenting on the Father, Justice Ross opined that “ [the Father] simply could not turn his attention to the issues at hand. I

formed the distinct impression that [the Father’s] anger and loathing for the [Mother] overshadowed his ability to consider the decision the court was being asked to make .” She also found, and I emphasize that “[ the Father’s] obsession with what he perceived as wrongdoing against him by [the Mother] completely prevented him from putting his best foot forward as a parent”. Justice Ross was referring to the criminal charges that the Father had faced where the Mother was the Complainant and his ongoing concern how that would impact his claims.

She also found that the Father could or would not make a connection between how his request for every Saturday access may be interfering with his son’s connection to Walpole Island and his First Nation community there.

During the trial, the Judge noted that as it related to this request (that A.D. spend time at Walpole Island and the activities there) the Father became visibly and verbally upset, shouting out that “he was tired of the racism”. [ 18 ] Justice Ross also found that there was commonality between the parties and their witnesses that there were often (perhaps always) some kind of verbal dispute during the access exchanges, with reports of police being called and the Father shouting at third parties present.

She found that “the takeaway from all of this evidence about these loud shouting matches is that [A.D.] was present for all of them. It is hard to imagine how this little boy was feeling about watching his parents and the other adults shout and threaten one another every time he went for access with his dad and when he came back.” Most importantly, she found that “ Neither parent was able to explain the problem to me.

Sadly, neither parent seemed to have any insight as to how their behaviour was impacting their son”. [ 19 ] In conclusion, Ross J. kept A.D.’s custody/decision making with his Mother with unsupervised access to the Father. She provided that he could decide what “one” extracurricular activity A.D. could engage in. She expressed that she found it was important for A.D. to have weekend time with his Mother, which weekend time would include the Walpole Island activities.

Her Order provided for a detailed access regime for the Father, including terms and dates, transportation to and from the visits, pick up and drop off points, including statutory and summer holidays and vacations. She provided a comprehensive template for A.D.’s visits with his Father. [ 20 ] This comprehensive regime of parenting for the Mother and Father ordered by Ross J. was never implemented as these Protection proceedings were commenced prior to the delivery of Justice Ross’ Reasons and resulting Order.

With the commencement of child protection proceedings, the Children’s Law Reform Act proceedings were stayed by operation of s. 116 (6) of the Child Youth and Family Services Act. [ 21 ] On February 1 st , 2021, the Court placed the child A.D. in the temporary temporary care and custody of his Mother subject to Society supervision on terms and conditions pending argument on the Society’s motion with supervised access to the Father.

On April 8 th , 2021, Phillips J. made a temporary Order pending trial having A.D. remain in his Mother’s care and custody subject to Society supervision on terms and conditions and that supervised access continue with the Father subject to terms and conditions. On November 8, 2021, in the course of this trial, the Society sought to vary the terms of the prior interim Order relating to the Father’s access. That motion was dismissed with oral Reasons by Phillips J.

Identification of Issues: [ 22 ] I have reviewed the written Submissions filed by counsel and I have categorized the issues before me on the “finding” portion of the hearing as follows: a. Is there sufficient evidence on the balance of probabilities that there is a risk that the child is likely to suffer serious emotional harm in or more of the following ways: (

i) Serious anxiety; (ii) Depression; (iii) Withdrawal; (iv) Self-destructive behaviour; (

v) Aggressive behaviour; (vi) Delayed development b. Is it fatal to the Society’s case that the Society has produced no independent, third-party expert evidence that the child is at risk of suffering the serious harm as described in s. 74 (2) (

h) of the CYFSA ? c. Did the Society engage in a strategy of selectively disclosing evidence and/or tailoring evidence which can or could lead to a finding of bias only discoverable under cross-examination which irreparably tainted the trial process and contributed to the Father’s difficult and combative conduct during the trial and pushing his level of frustration beyond reasonable limits;

d. Are the child’s utterances whether as to his state of mind or the truth of its contents, it having been agreed by counsel that these statements met the threshold test of necessity and reliability, ultimately admissible as necessary and reliable and capable of sufficient weight to give rise to the finding in “a.” above ? The Society’s case: Ms. S.L.: [ 23 ] The Society’s case consisted of the observations by the OCL Clinician, Ms. S.L, and the social workers assigned to work with the Mother and Father, Ms. L.B., Ms. D.C. and Ms. K.C. [ 24 ] The evidence of Ms.

S.L. consisted of a redacted copy of an Incomplete Report as the Father decided he was no longer interested in completing the OCL process and no final recommendations were completed. She was able to make observations of A.D., what each household offered to him in the way of activities and housing, contrasted parenting styles and she spoke to A.D. during four individual visits. Her observations were subject to cross-examination that I will detail below. [ 25 ] There were a number of themes that emerged when she spoke with A.D.

He expressed that he was scared at times of his Father, his Father yelled at him and others at times, he was afraid of going out on his Father’s boat and although he enjoyed playing baseball with his Father, he didn’t like running after the balls as punishment if he failed to hit them. A.D.’s father was clearly very proud of his abilities at baseball and praised him for his talent. A.D. was observed as hesitant and withdrawn with his Father, but he told the clinician that there were times that he enjoyed his visits with his Father, such as when he went swimming in the pool with his cousin B.

She noted that A.D. did not volunteer answers when he was around his Father. He had to be prompted by his Father to do so. [ 26 ] When A.D. was observed with his Mother, they painted, he was given a choice of what to play and what colours to choose. In contrast to the Father, the Mother did not ask A.D. to tell the clinician what he felt or what he liked about anything. She, too, praised him for his artwork and choice of colours. A.D. was spontaneous and sat in close proximity to his mother.

She observed he appeared engaged in the choice of activities his mother gave him and he willingly produced what he was working on with the clinician. [ 27 ] The evidence revealed that over the course of the clinician’s four (4) individual visits with A.D. began to open up more about his feelings and concerns. He was worried that if his Dad found out anything that he said, he (the Dad) would get mad. He could not tell his Father he was afraid of riding in the boat, but he would still go because his Father wanted him to. He could not tell him he didn’t like chasing the baseballs, as he would get yelled at.

He volunteered that he liked steak, but not the way his father prepared it. It was too spicy. He was aware that his Father would return him from his access visit late as they were watching his cousin’s baseball game. He also said that when he was returned from his visits with his Father, his parents did not speak to each other, and he sighed, but said this was fine. During his first visit with the clinician and while at his Mother’s house, he said he wanted to live there. He described his Mom as good, and his Father was the “bad one”.

During his second visit with the clinician and while he was at his Father’s house, he was worried that his window was open, and that his Father was listening. He did express that he wanted to spend more time with his Mother as she was often working on the computer as she was at school. He also expressed that he wanted his Dad to be nice. By his third visit with Ms. S.L. , A.D. explained that his Dad had yelled at him because he (A.D.) told the clinician the truth and he was scared about the boat as it had flipped over, and they had to hang onto the side of the boat.

He also said that his father had called him a “pig” and that he used that word describing his mother, his maternal grandmother, uncle and cousins. This is when he said he was sad. [ 28 ] During A.D.’s fourth visit with the clinician while at his Father’s house, this is when he became upset, started crying, and attempted to cover the phone he was speaking from with the sleeve of his shirt. His paternal grandmother had interrupted the visit and wanted the clinician to speak to A.D. while all the other members of the family were present as “[A.D.] has been told what to say”.

A.D. was unclear whether his grandmother left the room or if he had privacy. This is when the Father entered the room, was not prepared to continue with the OCL process, told the clinician that A.D. was being manipulated and started to yell at the clinician. The Father denied that he was yelling and told the clinician that he was taping his conversation with the clinician. [ 29 ] In conclusion, at no time did A.D. volunteer that he wanted to live with his Father.

Her evidence revealed that she was concerned that A.D.’s visits with her were not private but despite that, she was confident that he had told her the truth from his perspective. [ 30 ] Cross-examination of Ms. S.L. by Father’s counsel revealed that she did not talk about truth and lies with A.D. and did not ask him specifically about yelling and what that meant to him. She acknowledged she did not probe A.D. when he said he was thrown against the wall when he was young. She explained that her function was not to investigate; rather she was exploring what A.D. recalled.

She agreed with Father’s counsel that not everything referred to in her notes or within quotations in her notes was reflected in her Report. Cross-examination by Mother’s counsel and OCL revealed that A.D. was concerned that if she told his Father what he was saying, his Father would get mad. She repeated that this was a common theme by A.D.; fear of reporting, being scared and his apprehension about lack of privacy at his Father’s home while being interviewed. [ 31 ] In totality, her Report and her observations were uncompromised in any meaningful way.

Cross-examination by Father’s counsel did not establish or suggest why Ms. S.L. ’s concerns over A.D’s privacy were unfounded. No specific suggestion was put to her why or how there was an alternative theory by the Father that his son was being manipulated, other than the bald claim that the Mother was telling him to lie and that she was a liar. She was not compromised on the critical observation that when the Father terminated the investigation, he was observed as yelling at her and that he suggested he was taping his conversation with her. Ms. K.C.:

[ 32 ] The Society workers each had a distinct role and relationship with the parents and A.D. Society worker Ms. K.C. had been assigned to the case as a family services worker after July 24, 2020. I would note this was prior to and during the ongoing custody proceedings and many months thereafter. She testified in the course of that trial. According to Justice Ross’ Reasons, she spoke to her observations only and “neither party sought to introduce statements made by [A.D.].” She had interviewed A.D. about five (5) times at the time of her testimony according to Justice Ross.

Justice Ross’ Reasons reflect that Ms. K.C. said that A.D. presented as more comfortable at his Mother’s house, that he was quieter and reluctant to talk at his Father’s house. Justice Ross noted that Ms. K.C.’s investigation was not complete, but she had this to say about her evidence overall: “ Although KC (Ms. K.C.) was a fine witness, there really wasn’t anything in her evidence from which I could make any conclusions as to A’s [A.D.]’s best interests.” [ 33 ] The evidence revealed that Ms.

K.C. was working with the Mother and Father and spoke with A.D. as she was monitoring the unsupervised visits and what was occurring at the point of access exchange between the Mother and Father. At this trial, there were four sources of information relating to her observations and contacts. They include her Affidavits of January 25th and June 24 th , 2021, her case note recordings of April 11 th , July 23, August 10 th , August 22 nd , October 8 th , and November 4 th of 2020 and Recordings of January 4 th , March 10 th , April 27 th , and May 25 th of 2021.

Much of this evidence was the subject of cross-examination by the Father’s counsel. He asked that these documents be admitted on the trial. [ 34 ] Initially A.D.’s visits with his Father were unsupervised as a result of Justice Phillips’ March 27 th , 2020 Order. Much of what A.D. disclosed to Ms. K.C. had the same themes as what A.D. told Ms. S.L. . A.D. spoke of being yelled at and scared of his Father; his Father called him stupid and “not to act stupid”.

A.D. repeatedly said that he was being asked to tell the lady (the OCL clinician) that he wanted to stay over or stay with his Father (i.e., to live with him). According to A.D., he was asked by his Father and others to say that on a video and that his Father tried to make a video of him saying that. A.D. reported that when he wouldn’t do this on one occasion his Father threatened to leave him at a beer store and locked him out of his car. This was apparently sometime around October 2020. A.D. was also questioned about the incident in January of 2021.

A.D. said he was pounding on the car door to get back into his Dad’s car and this scared him. He said he was crying a lot. His Father also yelled at him and said the “s” and “f” word when he wouldn’t do what his Father wanted. [ 35 ] The Society’s involvement commenced with a referral from A.D.’s aboriginal counsellor. There was an allegation by A.D. that in July of 2020, his Father had squeezed his neck. Safety plans were developed. On one occasion when Ms.

K.C. discussed A.D.’s disclosures, the Father confronted A.D., he told A.D. that his Mother had told him to say these things and A.D. shouted at his Father to stop raising his voice at him. A.D. was described as visibly upset by Ms. K.C. as she was present when this happened. Generally, and most times when the Father heard what A.D. was saying, he denied that he was doing anything wrong, he offered that all of what A.D. was saying was as a result of the Mother’s wrongdoing and that as far as he was concerned she was putting ideas into A.D.’s mind.

He also expressed that all of this would be brought to an end when he obtained custody of A.D. after Justice Ross’ ruling was released. [ 36 ] According to Ms. K.C.’s testimony and her Affidavits and recordings, all of the above should not suggest that A.D. did not want to visit his Father; she noted positive activities such as swimming and Hallowe’en, basketball and baseball. Her assessment was that the constant questioning of A.D. about sleeping over and the Father’s conflict with the Mother in the presence of A.D. was impacting A.D.’s desire to keep seeing his Father.

The Society was waiting to bring a Protection Application as they wanted to “ await the outcome of the [custody/access] proceeding and “should [that] outcome … mitigate the safety risks to [A.D.] then they would not need to bring an Application ” . From what I can glean from all this evidence, the Affidavits and the case recordings, the situation between the Father and the Mother during exchange times started to deteriorate. Police were called to intervene. Comments such as “you’re a pathetic Mother” were used by the Father while A.D. was present. The Mother’s sister was insulted.

The Father refused to allow A.D. leave his car to rejoin his Mother following one such visit. The Father did not want to talk about the “beer store” incident and he expressed that A.D. was being “mentally abused”. [ 37 ] Around the time of these incidents, the Society commenced their Protection Application. Thereafter, the Father’s visits with A.D. were supervised. The relationship between the Father and Ms. K.C. continued to worsen. He was angry and upset.

He expressed his belief that his son was being coached and threatened; he described the Mother as a compulsive liar and he thought by April 2021 he would have an Order for 50-50 custody of A.D. (I note that this was the second return date of the temporary care motion before Justice Phillips). He sent vulgar and insulting text messages to Ms. K.C.; over time their vulgarity and angry tone increased.

Once A.D.’s visits were supervised at his Father’s home, he described his visits as “good”, he was having “fun” and a “good time” (these are his words) and he explained that “there was someone there to make sure his Father wasn’t yelling at him”. At the same time, he said that his Father was “was whispering in his ear that he should say that he wanted to stay over”. On the whole after the visits were ordered to be supervised, A.D. was observed as less stressed and happier. He was expressing this to Ms. K.C.. His Mother was observed as less stressed and happier.

She, too, was receiving text messages from the Father, but she was ignoring them and she was happy she did not have to worry about conflict occurring in front of A.D. with the access exchanges as they were now arranged by the Society. [ 38 ] Ms. K.C.’s cross-examination was conducted by Mother and Father’s counsel and the OCL counsel, Ms. Kondruk. Several key areas were clarified in the cross- examination conducted by the Mother’s counsel and OCL. Ms. K.C. clarified that she was physically present when she made the observations she did about A.D. and his Father about the events of August 23 rd , 2020.

On this day, there was a meeting with the Father about A.D.’s disclosures that his Father would yell at him and tell him to stop lying. She was physically present when he raised his voice, turned to A.D. and said, “He’s scared to look you in the eye because he has to go to that shithole, he’s threatened”. A.D. was observed as quiet, withdrawn and eventually shouted at his Father to stop raising his voice at him. She clarified that the Father would refuse to be re-directed when he would become agitated with her; even raising his voice at her. Other times during phone conversations, he would hang up on her.

Eventually, Ms. D.C. was appointed as the Father’s worker as the Father alleged that he was being “harassed” by Ms. K.C.. In April of 2021 the Father delivered an exceptionally insulting and potentially threatening email. The message contained the following: “With all due respect, you can talk to my lawyer if you have anything to say to me. I have nothing to say to you. You’re lazy, incompetent, failed to do your job and its [sic] pretty evident of your dereliction..

And because of your failed duties, an innocent child yet again is suffering emotional distress, insufficient time with his biological family (temporally) [sic]... God will deal with you for that though… Don’t call or text me ever again or I will call police for harassment..”

[ 39 ] As for her observations of A.D. during their meetings, Ms. K.C. described him as fearful, that he expressed a fear she felt that was very genuine and tied to being alone with his Father. She repeated that she would discuss with A.D. what he meant by being scared and what the difference was between a truth and a lie. She opined that she was never under the impression that A.D. was being coached. [ 40 ] OCL cross-examination was helpful as it clarified the events throughout the summer and fall of 2020, when the Father’s access was unsupervised and the parties were awaiting a trial date before Ross J.

What that examination revealed was that A.D., over time and over the course of his visits with Ms. K.C., began to complain more and more about the visits; his fearfulness, the incident at the beer store and how he was being pressured to say he wanted to live with his Dad during the time the OCL investigator was interviewing him. He said he even made a video taken by the Father. A.D. first disclosed the beer store incident on October 8 th , 2020. But despite A.D.’s distress, the visits continued as the CAS directed the Mother to support A.D.’s visits, notwithstanding A.D.’s complaints.

Her evidence reinforced that she first spoke to the Father about the beer store incident and the Father’s alleged threats to A.D. on October 9 th , 2020, the day following A.D’s disclosures; not the early part of January 2021 as asserted by the Father. On October 9 th , 2020, this is when the Father sent a text message to Ms. K.C. stating, “NO CHILD IN THE WORLD SHOULD EVER BE PUT THROUGH THIS MUCH MENTAL ABUSE !!!!!!!”.

The Society formed the position by early January 2020 that it was time to bring this Protection Application as A.D. was being exposed to exchange visits where the Father allegedly told his sister-in-law to “get her fat face back in the car,” was describing the Mother as a “pathetic excuse for a Mom”, recording the exchange visits and police intervention was required from time to time. [ 41 ] The Father’s counsel cross-examined Ms.

K.C. on why, according to the theory of the Father, there were omissions in her trial Affidavit when compared to her previous Affidavit at the time of the temporary care hearing and her detailed case recordings. The question at all times was: “Why was this part not put in your trial Affidavit?” Another complaint was that Ms. K.C.’s Affidavit addressed that when she spoke with A.D. she always reviewed the difference between the truth and a lie. Some of her case note recordings did not mention this fact.

The net effect of these questions was to suggest that A.D. was making up lies or untruths when he said he was scared or fearful as he was being pressured by his Mother to do so. The suggestion was that her trial Affidavit was misleading. [ 42 ] Father’s counsel objected that an alleged choking incident raised by A.D. in July of 2020 was referenced in Ms. K.C.’s case notes, but not referred to at all in her trial Affidavit. Another issue raised was why her case recording and Affidavit disclosed different dates. Father’s counsel suggested that Ms.

K.C.’s Affidavit was misleading as it didn’t provide detailed accounts of the positive aspects of the Father’s visits with A.D.

For example, her trial Affidavit did not disclose that A.D. had told her in an August 22 nd visit that his Father did not hit or hurt him, that his parents did not say bad things about each other when they picked him up, and that A.D.’s visit that day was going well, but he still didn’t want to sleep over at his Dad’s. [ 43 ] Much was made of the October 8 th interview with A.D. where A.D. disclosed that his Father had threatened to leave him at a store if he didn’t tell the OCL investigator that he wanted to live with him. Father’s counsel’s suggestion was that Ms.

K.C.’s notes inferred that A.D. told her that he had called back the OCL investigator that very day after his Father took him to the store. Father’s counsel also referred to Ms. K.C.’s notes that she had called the OCL investigator who wasn’t sure if there was enough time for A.D. and his Father to have gone out anywhere between the two calls. This kind of detail was not addressed in her trial Affidavit. [ 44 ] Other suggestions included that A.D. was making things up when Ms.

K.C.’s recording reminded A.D. during a November 4 th visit that A.D. did not have to “come up with stories about his Dad during each visit” and that they (the CAS) wanted him to have a positive time with both parents”. [ 45 ] Defense counsel was also particularly critical of the fact that Ms. K.C. did not personally attend at the Father’s house to review his surveillance video of the home relating to a January 2021 visit that he had with A.D.

The Father asserted that he was home that entire day and could not have taken A.D. to a store and threatened to leave him there. [ 46 ] All of these suggestions were entirely valid inquiries but the question at all times is what did they establish or prove? The Father’s counsel should have asked the OCL investigator what she meant by the statement that there wasn’t enough time to have gone out anywhere on October 8th when he had the opportunity to do so directly with her during cross-examination. His approach was contrary to the rule in Browne v. Dunn . Asking Ms.

K.C. what the investigator meant when she said there wasn’t enough time is something she cannot answer. Moreover, I am not entirely sure that it was a reasonable inference to draw from the notes that what A.D. was saying is that he called the investigator or that the incident occurred between her two calls. The notes are confusing on this issue. At the same time, the court notes that A.D. never wavered from the disclosure that his Father threatened to leave him at a store if he didn’t tell the investigator that he wanted to live with him. [ 47 ] The Father’s insistence that Ms.

K.C. should have come to his house and seen his surveillance camera footage in January of 2021 did not answer the question of what happened with A.D. and his Father on October 8 th , 2020. As for whether A.D. had the knowledge, ability, memory, cognitive ability and language skills to sufficiently detail what happened on October 8 th is unknown. As for whether the incident actually occurred on October 8 th is another issue. To be sure, Ms. K.C.’s case note recording of the October 8 th meeting between she and A.D. is more detailed than the content of her Affidavit.

And as for why her Affidavit read the way it did, Ms. K.C. offered she did not prepare her trial Affidavit or make the legal decision as to what was relevant or not in its preparation. That fell to Society counsel. One suggestion offered by the witness is that it would make for a very lengthy Affidavit if it contained everything in her 137 pages of case note recordings. Another answer provided was that according to her understanding the Society Affidavits are crafted with a focus on the evidence supporting the finding of protection. She indicated that her practice was to prepare a

summary. The case note recordings are available to counsel and the drafting of the actual Affidavit is left to Society counsel. Why Society counsel made the choices he did, she did not know. She also readily conceded there would be differences between her trial Affidavit and the one used in support of the temporary care Order. Her trial Affidavit was used for one purpose; her temporary care motion for another. She offered there may even have been page limits in connection with the temporary care motion Affidavit that would reduce it length and detail. [ 48 ] As for why the case note recordings and her

summary of meetings and events would bear different dates; she explained that the recording program at the Society would automatically assign a different date depending on the time the data was entered. This accounted

for the difference in time. Once entered, the data cannot be altered or deleted. I take no issue with that explanation. [ 49 ] As for the suggestion that her Affidavit and her evidence were designed to paint the Father essentially in a negative light, she rejected this suggestion, referring to her Affidavit and case note recordings. These documents acknowledged that there were positive aspects of the Father’s visits with A.D. A.D. would report the visits as good and that he was happy. Other times he was scared and fearful. [ 50 ] At the end of Ms.

K.C.’s testimony and after a thorough review of her Affidavits and the various case note recordings, I was not satisfied that the Father’s counsel had proved that Ms. K.C. was attempting to tailor her evidence or selectively disclose the facts that could only be discovered through cross-examination. To be sure, some of the ambivalence around A.D.’s October 8 th disclosure should have been more thoroughly canvassed in her trial Affidavit. They were more thoroughly canvassed in her case note recordings.

But as I said above, it is quite unclear what A.D. was saying about the “beer store” incident and precisely when it happened. And Ms. K.C. did not draft the Affidavit placed before the Court; Society counsel did. [ 51 ] Frankly, and with all due respect, the problem rests with the preparation of the Affidavit itself. The Affidavit should have been prepared with considerably more care and attention to detail. Leaving it to Father’s counsel to parse out the numerous recordings to present a more balanced and nuanced account of the October 8 th disclosure is an unacceptable practice on the part of Society counsel.

The Affidavit in question was drafted in the usual Society style with numerous paragraphs detailing a chronological narrative of case events. This makes for unnecessarily lengthy Affidavits lacking in focus and identification of issues. However, on the whole I was satisfied, particularly in reviewing the various case note recordings before the Court and the evidence of Ms. K.C. herself that she was not biased or trying to withhold critical facts from the Court.

I was particularly impressed that she was candid in saying that in hindsight, she could or should have followed up more thoroughly with A.D. relating to his October 8 th disclosure, particularly after the OCL didn’t know if there had been enough time for he and his Father to drive to a store. It should be kept in mind that A.D. made a further disclosure about the beer store incident in early January 2021.

A thorough examination of her case note recordings reflects that she was careful to document what she asked A.D.; that she captured A.D.’s responses; that she routinely attempted to satisfy herself that he understood the difference between a lie or a truth when she was speaking with him; that she cautioned him on at least one occasion that it wasn’t necessary to simply tell her “stories” about his Dad. [ 52 ] In the end, A.D.’s disclosures of October 8 th remain a confusing mix of facts and circumstances that I am not confident can be easily resolved when they interface with the justice system.

The evidence reflects that there have been multiple interviews with A.D. and Society personnel and multiple disclosures over time. A.D. appears to have repeated the allegation again in January of 2021 as this was all part of his expressed fearfulness and feeling scared. I do not fault this witness with the manner in which her Affidavit was prepared. There was no attempt by this witness to distort the fact-finding function of this Court. I find that she was an honest and reliable witness; she was upset that her Affidavit did not disclose facts that were presented in her

summary to counsel. [ 53 ] I will address the issue of balanced and sufficiently detailed Society Affidavits at a later point in this ruling. Ms. D.C.: [ 54 ] Ms. D.C., another family services worker, was assigned to work with the Father just prior to the commencement of the Protection Application. She had several conversations with the Father. When he learned that the Society was bringing a Protection Application he thought the whole thing wasn’t serious. At one point he laughed, and denied there was anything wrong.

He asserted that the accusations made by A.D. were false and they were encouraged by the Mother; he said that she had coached the child to say things about him (the Father). He thought he had “won” joint custody and “he could not wait to see the Mother’s face” when she learned of this. This was, I find, a rather curious statement by him, as there were no findings issued by the Judge at the time the protection application was commenced. [ 55 ] Ms. D.C. either spoke or had contact with the Father on February 3rd, 9 th , 11 th and 12 th . After a gap in time, she became his worker once again in April of 2021.

Her involvement consisted of many conversations about setting up access between the Father and A.D. She described the Father as upset, that he considered himself an “amazing” Father and that he described A.D.’s Mother as “psychopathic” and “psychotic”. He opined that A.D. would grow up hating his Mother, he would be confused and he “would kill people”. According to the Father, A.D. begged and cried not to return to his Mother’s house when he was visiting him.

They prayed together and A.D. prayed not to have to go back to his Mother’s, according to the Father. [ 56 ] As for visits with A.D., the Father would not visit A.D. at Society’s offices as he wanted the visits at his home. As a result, there were no visits between A.D. and his Father from sometime in January to mid-March of 2021. As Ms. D.C. and the Father continued to meet and talk, he used terms that “all of this was shit”, that he wanted 50/50 custody now, that he would take a polygraph test and he had a lawsuit pending against the Society.

Another continuing theme was that the Mother was the reason behind “all of this”. Overall, he was incensed that his visitation to A.D. was ordered to be supervised. But at the same time, he said he was thinking about stopping access to A.D. as he was going to make a new life for himself, he was getting married, and he might be travelling as his brother had made the “big leagues”. As the visits progressed into the spring of 2021 there was disagreement as to whether he would wear a mask. I note that the pandemic was in full swing at this point and the workers were wearing full PPE.

The Father refused to wear one claiming he had a Doctor’s note exempting him from this requirement, but Ms. D.C. noted that he never produced any such documentation. Visits were limited to one person only due to COVID protocols. The Father wanted his mother to be present; he claimed his brother lived with him so the one-person rule couldn’t be adhered to. Issues were raised whether he was whispering into A.D.’s ear during visits as the supervising access workers could see him doing this. The Father told Ms. D.C. that all he was doing was telling A.D. that he loves him.

But that is not what A.D. was reporting. [ 57 ] After June 12, 2021, A.D. stopped visiting his Father following what A.D. described as a “bad’ visit. Ms. D.C. interviewed A.D. following the June 12 th visit. His Mother said that following the visit with his Dad he was crying all weekend. According to A.D., his Father told him that “he was done with it” and A.D. yelled at his Father as “my dad wants me to think my Mom does stuff and she doesn’t.” A.D. told Ms. D.C. that everyone was yelling at the visit and what this meant was that they had raised voices. When Ms. D.C.

attempted to discuss the visit with the Father, he was combative and defensive. The Father said that A.D. was being coached, that as A.D.’s father he had a right to ask him questions and he denied there was yelling going on. When Ms. D.C. explained that A.D. didn’t want to visit with him following the June 12 th “incident” as he was scared, the Father repeated that he was being coached, that A.D. wanted to stay with him and told him so and told Ms. D.C. to “fuck off” when she didn’t see any reference to A.D. ever making that statement to anyone. [ 58 ] As for cross-examination of Ms.

D.C., she expressed that she considered her relationship with A.D. as familiar and friendly. In totality, she was not compromised on her interview techniques with A.D. following the June 12 th visit. She and A.D. met outside in a private setting, out of earshot of anyone at his Mother’s home. She described A.D. as not nervous and not looking around to see who was listening. A.D. kept saying “I’m safe here”. She felt there was no reason whatsoever that he would be untruthful about the events of June 12 th and her failure to ask more open-ended questions did not compromise what she heard.

The Father’s counsel established that she did not discuss with A.D. the difference between a truth and a lie, but she countered that hers was not a full Ministry interview. She acknowledged that A.D. could not tell her what yelling meant, even though the term was used eight (8) times during their conversation. She also didn’t consider him confused about being left sometime earlier at a store when he wouldn’t do what his Father asked of him. [ 59 ] All in all, Ms.

D.C. was not compromised on the fundamental issue that she selectively introduced evidence that was contrary to the Father’s interests or tailored her responses in any way. Interestingly, Father’s counsel did not address how or why the Mother may have coached A.D. which was a central theme to the Father’s denials or what it was about A.D.’s responses that suggested he was being coached. Interestingly, she was not examined on the issue of the Father’s refusal to visit A.D. following commencement of the Protection proceedings, until he could see A.D. at his home.

She was not examined on the Father’s derogatory comments about the Mother, what he had to say about A.D. growing up and “killing people” and his combative and defensive posture following the June 12 th visit. All in all, her evidence was untarnished in any material or substantive way. I do not find that she was biased. Ms. L.B.: [ 60 ] Ms. L.B. is what she described as a Child and Family access worker and has been employed by the Society for over ten (10) years. She supervised the visits of May 8th, and May 29th 2021 between A.D. and his Father and directly observed the events of June 12th, 2021.

As for the two visits in May, each visit occurred at the Father’s home with multiple family members present. The Father could be heard accusing A.D.’s mother of deleting family members from a video game. He was heard telling A.D. that “people are telling [you] what to like and not like”. The Father asked A.D. if he missed him, and he told A.D. he likes being with him. He was seeking a positive response from A.D. and offered that he fed A.D. “like a King”. When the visit was ending, the Father ignored the worker when she cautioned it was time to get A.D. ready to leave.

On both of these visits, it was noted that A.D. hugged his Father on arrival and on leaving, together with other family members. He was observed as having a fun time with his cousin, he was given a present – a Nike track suit and he was told to wear it home and wear it again when he returned. [ 61 ] The events of June 12 th , 2021, require explanation and detail. This date was a scheduled supervised visit. The Father, however, was concentrating on his phone. He then moved to start cutting A.D.’s hair and A.D. started crying and said that “it hurts”. This is when the visit appeared to unravel.

The Father told A.D. that he was done “giving up his life” for A.D. because he lies, that A.D. was lucky to have a Father like him, that he had spent 4 years dealing with A.D.’s lies and his Mother’s manipulation. When Ms. L.B. cautioned that she would have to end the visit if the Father kept speaking like this to A.D., the Father said he was done, not doing this anymore, that he would speak to his son if he wanted and kept calling A.D. a liar and that A.D. was trying to hurt the Father. Eventually, after some coaxing, Ms. L.B. took the Father outside and spoke to him there.

Apparently the Father had been reading Affidavits for this trial and he was upset; he repeated that A.D. was being manipulated by his Mother, that he wanted to abandon “all of this”; that A.D.’s mother was “out to get him”. As he had with Ms. D.C., he offered to Ms. L.B. that he had a new woman and was getting married. [ 62 ] When the visit reconvened, A.D. did not want to stay as he said there was “too much yelling” and he told Ms. L.B. this. But when his Father asked him if he was leaving, he told him “no”.

Even after A.D. returned he was asked “if he knew how lucky and blessed he is to have this amazing family” by his Father. When the Father and the family members realized that A.D. was leaving early and had agreed to leave early, the Father told A.D. that “if he chooses to leave, he will never see him again”, that he “coaches other young boys, and they love him and want to be with him”, “that A.D. was giving up the best Father in the world’ and that “A.D. should be careful about leaving as he was being bribed and doing what people told him to do “and “he was ungrateful for leaving”.

He was told that his Father drove six hours to visit with him and that “he just won 50/50 [custody] so he would be with his Father half of the time”. His Father told A.D. that by leaving he was making his grandmother cry. Throughout all of this, A.D. was observed as initially screaming at his Father, crying, non-responsive to his Father’s questions and finally sobbing loudly as he entered the volunteer driver’s car. A.D. had to be comforted by the driver as he left the visit. [ 63 ] Cross-examination of Ms.

L.B. by Father’s counsel again revealed that she did not put in her trial Affidavit that the Father “teared up” and was upset during his conversation with Ms. L.B. during the June 12 th visit. She also willingly agreed that the Father was not yelling, that it was A.D. who started to yell.

As for A.D.’s comments that there was “too much screaming”, she agreed that the Father did not scream but she described his voice as raised and his tone as stern. [ 64 ] Under cross-examination by other counsel, she said her attempts to redirect the Father were futile; that he wouldn’t accept her attempts to redirect when he lost control during that day. This is the point when the Father said, “he is done and not doing this anymore”. She described in detail that when the Father was cutting A.D.’s hair it was a direction, not a request.

She also offered that when A.D. started to cry after the haircut that his Father did not console him. She described in detail that A.D. was teary, wide-eyed, and wouldn’t talk. She described him as frozen. It was only when A.D. entered the volunteer driver’s car, that he sobbed loudly. She offered that this appeared to be a release for A.D. from his previous frozen state. She also offered that it was the volunteer driver who consoled A.D. rather than his Father. She observed A.D.’s father as standing at his household door; he didn’t approach the car or A.D. [ 65 ] In totality, Ms.

L.B.’s observations of the June 12 th visit between A.D. and his Father remained intact and without compromise. Her observations and her account of that visit remained unimpeached in any meaningful way. Her evidence and account of June 12 th

was a compelling piece of evidence. I was not satisfied that she had tailored or selectively disclosed her evidence in any manner. The Mother’s Evidence : [ 66 ] The Mother’s evidence in chief was admitted by way of an Affidavit and oral testimony. She was cross-examined by all of the parties’ counsel. [ 67 ] Some of her evidence was historical in nature.

She testified as to how and when she met the Father, what the course of their relationship was like, historical issues related to how he treated A.D. as a baby, the circumstances that led her to eventually separate from him and the various court proceedings between them. She also spoke of the access exchanges with the Father and A.D, what happened when it was supervised or unsupervised and their ongoing relationship generally. She presented with a very flat affect, always very calm and considerate.

I would describe her as a most polite, but at the same time a meek individual, quiet and unassuming almost to a fault. She never raised her voice or used profanity of any sort. Even during cross-examination with the Father’s counsel, she engaged in a similar manner. A number of Exhibits were attached to her Affidavit and contained numerous text messages exchanged between the Father and her. Most appeared to be generated by the Father.

The parties had earlier agreed through counsel that these text messages, save and except for a text message which the Father relied upon and which he said purportedly was sent to him by the Mother, could be admitted without formal authentication. I will address at a subsequent point the contents of the Father’s email and its admissibility outcome. [ 68 ] According to the Mother her relationship with the Father was a conflict ridden one at all times, both while they lived together and after separation.

Her life with him was marked with numerous incidents of strikes, blows and punches; she alleged he burnt her with a cigarette lighter and shot at her with a BB gun. She alleged that the abuse was both was physical and emotional including abuse towards A.D. while he was an infant or small child, all of which I would note, was at all times vigorously disputed by the Father.

In respect of her allegations, I refer to paragraph 10 of her Affidavit of July 6, 2021, filed in these proceedings. [ 69 ] The collateral issue as to who had been abusive to whom and the outcome of the criminal case was a continuing subject of disagreement. Similar to Justice Ross’ findings, the issue of whether the Mother was lying, had encouraged A.D. to lie and the results of the criminal proceedings between the Mother and Father was a pressing issue for the Father. The only information that I was provided with was a photocopy of a handwritten endorsement by Verbeem J.

SCJ dated October 7th, 2019, dismissing and acknowledging the withdrawing of various counts by the Crown. None of the counsel involved produced a transcript that could help me understand the basis of the Judge’s findings and what the Crown’s request was/were. This would have been helpful for the court, but the evidence was simply not produced. [ 70 ] According to the Mother, after the parties’ separation and at a time when the Father first started exercising supervised access at a supervised access center in Chatham, and thereafter in Windsor, the visits grew to be positive.

She expressed that she was happy he was building a positive relationship with A.D. Eventually, she and the Father negotiated that supervision by Ms. R. would occur. She was the wife of the Father’s friend and the Mother thought this was a good thing. Eventually, that arrangement had to be changed as the supervisor was no longer willing to assist; oftentimes she was not available on weekends, but overall, according to the Mother, when examined by the Court, she thought that Ms. R. was trying to do a good job.

When a new Order of supervision was necessary, this is when the Mother brought a Motion to Change, and the supervision was changed to A.D.’s grandmother and uncle. The Mother was concerned about this change. She felt that the Father’s mother and uncle were both afraid of the Father and would basically just do his bidding; but she was prepared to honour Justice Vickerd’s interim Order and according to her, she wanted A.D. to have a happy time with his father and she encouraged the visits.

It was the Father she said who suggested the OCL investigation in the course of the Motion to Change; only to have him discontinue the process. A.D. would eventually complain as time moved on that the visits upset him, he was anxious and upset before the visits. She described him as quiet and withdrawn. On some occasions, he was observed crying following his visits with his Dad. This is when she would encourage A.D. to “have a good time”. He told his Mother that his Father was wanting him to appear on a video and say that he either wanted to sleep over or wanted to live with him.

Other times, he told he had been forced to make the video and that such a video existed. [ 71 ] When A.D.’s grandmother and uncle were supervising A.D., the Mother testified that she was constantly pressured to have A.D. stay over with his Father. She resisted this as these were not the terms of Justice Vickerd’s Order and she was worried about him and the stress he was experiencing. Other problems included the Respondent Father was often late returning A.D.

Once the visits were entirely unsupervised from March of 2020 until commencement of the child protection proceedings, A.D. began to complain more and more about yelling and threats unless he did what his Father wanted. At access exchange visits, the police were called to intervene by both the Mother and Father. On one occasion, the mother was fearful of the Father. On another occasion, she called the police as the Father was refusing to turn over A.D. and he was filming his son, who had become upset and was crying. This incident is particularized in paragraphs 37 through 39 of her Affidavit.

The Father apparently called the police several times to conduct “wellness” checks on A.D. when he was in his Mother’s care. [ 72 ] Text messaging pursuant to the Order of Justice Phillips became an ongoing problem. A sampling of the Father’s text messages to the Mother are found at Exhibits “E” “F” and “G” of her Affidavit. Apparently the messages were relentless and incessant. She had a separate phone which was supposed to serve as the means to send and receive text messages with regards to access with the Father.

A sampling of this texting shows they contain language that includes messages from the Father to the Mother that: A.D. hates his mother; that she should stop making up lies and harassing the Father; that when she loses custody she will understand; that the Mother was dropped by four (4) lawyers and told by five (5) judges to stop her behaviour; that the Mother was pathetic and [A.D.] is finally starting to see how evil you are; that she should “fuck off”; that she was a loser and that she was not to touch “my” son’s hair or buy him shoes at Walmart. One text calls her a “piece of shit”.

There are references to the Father posting videos online. The Mother was never sure whether the videos were in fact posted online, she only knew what the Father said in his text messages. I repeat, this is just a sampling of the language. Apparently, the texting and language continued up to and after the custody trial and until the commencement of the Protection Application.

The texting was so difficult for the Mother that eventually she would not open her phone to read what the Father was saying. [ 73 ] The Mother explained that during the custody trial she offered unsupervised and weekend visitation to the Father even though

she remained fearful and scared as she wanted to extend an olive branch to him. At all times she preferred the supervised visitation, she explained. As for why she would make such a suggestion when she remained fearful and scared both for herself and A.D., she said she never saw the OCL clinician’s report until after the trial was completed. She never knew what A.D. was conveying to his indigenous counsellor as their sessions were private.

She only knew what A.D. was saying to her and despite her reservations, she wanted the access to work for A.D. and his father. [ 74 ] As for the Father’s access after supervised visits were ordered, she said that A.D. appeared to enjoy his visits and was having a happy time initially. Again, she expressed that she was happy about this development. When A.D. returned from his visit on June 12, 2021, he had been crying, he told her he was hurt when his Dad was cutting his hair; he expressed that his Dad was mad at him. He also said that “everyone was calling me a liar, including Uncle R. and his cousin B.”.

He also said that “his Father said he was done with him; he was never going to see him again”. [ 75 ] Cross-examination of the Mother by the OCL and Society counsel was helpful as it provided useful observations of A.D.’s behaviour and temperament before and following visits with his Father. Sometimes prior to a visit, his Mother described A.D. as anxious. His Mother said that she could tell if A.D. was mentally exhausted or unhappy afterwards. Sometimes he would fall asleep; other times he expressed upset. Sometimes A.D. would talk incessantly and “go on a rant”; sometimes he would cry.

Another descriptor used was that A.D. was very upset. This was particularly so when the police would be called. She described that one access exchange was recorded by A.D.’s uncle. Another time, the Father wouldn’t let A.D. exit the car as he was upset that her sister was present in her car. She expressed she found it difficult to remember dates and times as it was traumatizing for her, especially given what she described as a long history of abuse towards her by the Father.

She described the Father as yelling at the police. [ 76 ] She described A.D.’s visits with his Dad following Society supervision as much different, more comfortable, that A.D. seemed happy and not worried. She expressed that she worried about A.D., but he seemed to be having a better quality of time with his Father. When the visits were unsupervised, she noted that A.D. was “definitely worried”. [ 77 ] As for the police wellness checks initiated by the Father, she expressed that this had happened several times; she thought this started to happen after the protection proceeding was commenced.

With these visits, she said that when A.D. saw the police he was scared. [ 78 ] As for cross-examination by the Father’s counsel, she conceded that the numerous criminal offences that the Father was charged with in connection with her allegations of abuse were dismissed or withdrawn. She was emphatic that at no time did she threaten to report the Father to the police and at no time did she ever send him a text threatening to do so. She explained that the text message (this is Exhibit “C” to the Father’s Affidavit which he ultimately failed to authenticate) was altered by the Father.

She expressed that the message was in a different coloured bubble from the other bubbles contained in the chain of messages. As for access exchanges, she reiterated that she didn’t want to go alone, but this appeared to enrage the Father when she came with her sister. She added that the Father would message her that she had to attend the exchange on her own; A.D.’s grandmother and uncle would do the same. Eventually, she wanted an extra person to protect herself. This generated more and more text messages telling her to “grow up and come alone”.

As for the access exchanges, she described them as the “biggest source of conflict” with the Father. She denied ever yelling; she described the Father as aggressive towards her. [ 79 ] It was cross-examination by the Father’s counsel that provided even more clarification about her position at the hearing before Justice Ross. She expressed that she wasn’t aware of A.D.’s disclosures to the clinician at the time of the custody/access trial.

She consented to unsupervised visitation even though the access exchanges and conflict were ever increasing as “every time they went to Court [the father] was getting more and more.” She felt she had to be realistic; she described that she gave in. She wanted to appear reasonable; she hoped that things would go better.

She was prepared to keep A.D. in private counselling but overall, she had no idea of the problems that A.D. was expressing to the OCL clinician. [ 80 ] I want to note the behaviour exhibited by the Father throughout the Mother’s testimony in-chief and during cross-examination by counsel for all of the parties. He was participating by Zoom and as a result of his behaviour and unwillingness to quit interrupting the proceedings, he was muted at times. When he didn’t agree with an answer provided by the Mother, he would hold up a sign saying, “lies” if the muting was turned on.

He continued to interrupt proceedings time and time again, even though he was muted. At one point, the muting was turned off and he screamed that “the allegations of violence had been dismissed in the criminal courts” He continued to yell and scream and could not be dissuaded from this type of conduct. One counsel complained that the Father was treating the proceedings as a spectator sport.

At the completion of the Mother’s testimony, he could be observed waving his phone, turning his zoom screen on and off, leaving his seat in front of the camera, pacing the room and holding up notes saying “lies”. [ 81 ] Commenting generally on the Mother’s testimony, she found it difficult to remember specific dates and times of the access exchanges. When pressed, she said it was all so traumatic for her and she would prefer to forget it all. As I said at the outset of this section, she was a meek witness. She appeared withdrawn and frankly “beaten down”, but overall, she testified in a forthright manner.

I do not find she was compromised during her cross-examination by the Father’s counsel. She disputed sending the Father a Facebook message or text message and that denial was not compromised. She readily acknowledged that the criminal proceedings between she and the Father were dismissed and/or withdrawn. Her descriptions of A.D.’s behaviour following visits and during access exchanges were unchallenged. She expressed being fearful of the father and his family. This was largely unchallenged. She described the access exchanges as conflict-driven and marked with aggression by the Father.

This, too, was largely unchallenged. No specific evidence was put to her as to how she encouraged and/or facilitated A.D. in making complaints against the Father. She did not present as psychotic, psychopathic or angry with the Father, she expressed no malice whatsoever. Frankly, she appeared scared of him and weary over the ongoing conflict and litigation between them. The Father’s Case:

Mr. O-D.: [ 82 ] This witness is the Father’s brother and provided an Affidavit for his evidence in-chief and was cross-examined by all parties’ counsel. He was examined over the course of two and a half days. [ 83 ] Mr. O-D.’s Affidavit was brief, some forty (40) paragraphs long, but with very short sentences in each, and largely refuted that the Father would yell or scream at A.D.; that the Father didn’t conduct himself in that fashion with A.D.; that his son B. and A.D. enjoyed a close and loving relationship and A.D. had a close relationship with the rest of the family, including A.D.’s grandmother and Mr.

O-D.. Most importantly, he asserted that he was not afraid of his brother. He addressed three visits that took place: October 31 st , 2020 (a visit on Hallowe’en night), January 2 nd , 2021 (this is one of the dates referenced in Ms.

K.C.’s Affidavit where A.D. alleged he had been taken to a store/beer store and his Father threatened to leave him there if he did not say on video or tell the OCL investigator that he wanted to stay over and/or live with his Father) and June 12 th , 2021. [ 84 ] After a voir dire as to admissibility, I allowed the filing of a very short video that he had taken showing A.D. running towards his Father on an access visit. On viewing the video, A.D. was clearly very happy and joyful to see his Father.

There was much confusion as to when the video was recorded, its date and time, but nonetheless I admitted it on this trial, but I was never sure when it was taken. [ 85 ] I would describe Mr. O-D. as a combative witness, often responding to questions with his own question. He would editorialize if he thought the question was meaningless. He engaged in debate with the Court about the questions asked of him by counsel. I would describe him as “testy” and argumentative. At one point in his Zoom testimony, he left the screen and court after his phone rang.

Curiously, the Father left the screen/zoom court shortly thereafter. It should be noted that the Father was not attending at his lawyer’s office, but from his own home. When Mr. O-D. returned, he was cautioned about speaking to anyone about his testimony while he was in the course of delivering it and/or speaking with the Father. He insisted he had not spoken with the Father. I was never quite sure about that assertion. [ 86 ] During cross-examination, Mr. O-D. largely disputed Ms. L.B.’s observations of A.D.’s visit of June 12th, 2021.

He described that “at no time was any of us yelling or screaming” but they were “emotional”. When pressed as to why his Affidavit deposed that the visit didn’t end well and “it broke his heart when it ended” he was unresponsive to the question at times; at other times he simply said the visit was just “great”. He also testified that at no time was A.D. crying, insisting that A.D. was just upset. He suggested it was A.D. who was yelling, not his Father. He also offered that the reason A.D. was unresponsive to his Father was because A.D. was lying.

He also offered that it was a perfectly normal thing for a Father to keep asking his son why he kept lying and to press him for an answer. The Father’s evidence: [ 87 ] The Father’s evidence consisted of an Affidavit of July 8th, 2021, his 35.1 Affidavit sworn August 5 th , 2021, and his extensive oral testimony in-chief.

The Father was cross- examined by all parties’ counsel. [ 88 ] In his trial Affidavit, the Father asserted that he would fully cooperate with the Office of the Children’s Lawyer, sign all releases of necessary information, allow the CAS scheduled and unscheduled visits to his home and allow the CAS worker to interview his child, in private or otherwise. His July 8 th Affidavit deposed that he has no criminal record or any pending criminal charges nor any previous CAS involvement. This was false as is reflected below. Eventually, he completed a 35.1 Affidavit at the Court’s insistence.

At paragraph 8 of that Affidavit, he deposed that the Mother had been abusive to their son; that she struck the child in the face multiple times, even strangling his son when he was three (3) years of age. He described the Mother as angry and abusive and although he reached out to her family for help, they failed to intervene. [ 89 ] By a fresh 35.1 Affidavit, he acknowledged he had a number of criminal convictions. They include the following: (

i) December 31, 2010: Conviction for uttering threats, failure to comply with Officer in Charge undertaking and Mischief under $5,000. Sentence was ten (10) days custody (four (4) days pre-sentence custody) with probation for three (3) years on Uttering threats, Concurrent sentence on counts of failure to comply and mischief. (ii) April 3, 2012: Conviction for failure to comply with Probation Order. Sentence was four (4) days custody (three (3) days pre- sentence custody). (iii) July 25, 2012: Conviction for aggravated assault.

Sentence was nine (9) months custody with 18 months probation and a mandatory firearms prohibition Order under s. 109 of the Criminal Code . [ 90 ] I would note that notwithstanding his conviction for aggravated assault, the Father’s fresh 35.1 Affidavit at paragraph 6 states that there is an incorrect entry on his Record as the assault conviction applies to a bar fight only and not the Mother, “while defending himself”. [ 91 ] The Father’s Affidavit contained a number of Exhibits which were ultimately admitted on the trial proper.

These particular exhibits consisted of “selfies” or video clips of the Father and A.D., showing them at happy moments during his access visits i.e., playing in the leaves, sleeping with his Father, a video of January 2 nd , 2021, and a video of A.D. running into his Father’s arms as entered through his brother, Mr. O-D.. [ 92 ] There are a number of repeated themes in the Father’s Affidavit.

First, he relies on the Order of Ross J. of June 2 nd , 2021, where he was awarded unsupervised overnight parenting time with A.D. asserting that the learned Justice noted in her Ruling that there was “no evidence adduced showing that [he] [had] ever harmed [A.D.]”. He acknowledges that he refused to participate further in the OCL investigation of Ms. S.L. . He does not elaborate why. He alleges that after the Protection proceedings were commenced, he did not see A.D. from January 2 nd , 2021, until March 2 nd , 2021, and again after June 12th, 2021.

He refers to the criminal proceedings between he and the Mother which resulted in a dismissal or withdrawal that I referred to above. Exhibit “C” to his Affidavit was a text message that

he alleges the Mother sent to him so that she could lie to the police and say that he hit her and A.D. The Court required that the message be authenticated in some fashion as the Mother did not admit sending the message and its authenticity was in issue. The Father declined to take the steps to authenticate Exhibit “C when the opportunity arose for him to prove how and when he received the text. It is noted that all that was produced before the Court was a faded copy of the message that had been photocopied. Someone had penciled in the date of 2017 beside the Mother’s alleged message.

The colouring of the messages allegedly exchanged between the Mother and Father was different. The Court was most desirous of learning more about these anomalies. Instead, the Father asserted that the document/text had been “authenticated” before Justices Verbeem and Ross in the proceedings before them. He provided no other proof other than this bald assertion. He made these comments despite his lawyer’s instructions to the Court that the process to authenticate Exhibit “C” would not be pursued.

To repeat, there was no transcript ever produced relating to the authentication before another court or how the message was utilized in either proceeding. The voir dire into its admissibility was abandoned. As a result, this Exhibit was not allowed to be entered as evidence on the trial. [ 93 ] The Father’s Affidavit asserted that he was a loving and good father and that he would never yell or scream at A.D. [ 94 ] The Father’s Affidavit refutes certain aspects of the Affidavit of Society worker Ms. K.C. of June 24th, 2021; Ms. L.B of June 22nd, 2021; Ms. D.C. of June 23rd, 2021; and the OCL clinician A.G..

Relating to Ms. K.C., he disputes the events that she describes relating to Hallowe’en evening of October 31 st , 2020, but expresses that he is ashamed of his role in getting A.D. upset that night. He disputes that he ever threatened to leave A.D. alone at a “beer store” in January of 2021 and asserts that he had a surveillance camera which would show that he never left his home that day at all. He complained that no Society representative came to his house to view his surveillance camera footage. He provides an explanation as to why he did not call Ms.

K.C. when she asked him to as he spoke to an after-hours worker instead. [ 95 ] As for the events of June 12 th , 2021, the Father agrees that he was upset once he read the Society worker’s Affidavits for this proceeding, but he disputes that he was yelling or screaming at A.D., nor belittling or calling him names. He acknowledges that he made a big mistake even questioning A.D. about his allegations, but he explains that he only wanted to know why his son wasn’t telling the truth. As for Ms.

D.C., he agrees he was vulgar when he spoke with her on June 16 th , 2021, but he provides an explanation that he was hurt and frustrated. In conclusion, he asserted that A.D.’s indigenous status is part of his identity, and he respects that. He asserts that all he wants to do is move on with his life and comply with the Order of Justice Ross. [ 96 ] The Father also spent the better part of an additional day and a half with oral testimony before the Court. This is despite the fact that he had been afforded the same opportunity as the Mother to file a trial Affidavit detailing his evidence in-chief.

He demonstrated little control over what he had to say when he had the opportunity to do so. He described the mother as a “psychopathic vindictive ex” that doesn’t know how to co-parent. He alleged that she had mental issues and was on a lot of medication when they were together.

As for the Hallowe’en visit of October 2020, he reported that he had called the Mother telling her that he would keep A.D. until 8 p.m. and when she objected as the drop off time was 7 p.m., as she had her own plans for the evening he told his son, “Your mom’s not gonna let you go trick or treating” He described the Mother’s upset and exchange of text messages with him as “disgusting” which allegedly reduced he and A.D. to tears. He described the Mother’s reaction as completely inconsiderate, extreme and excessive.

When A.D. arrived at the access exchange, he offered that there were more words exchanged between he and the Mother and the Father’s brother started recording the Mother. The Father described this incident as “parental alienation and abuse”. [ 97 ] He expressed that he considered the disclosure by A.D. that his Father had threatened to leave him at a store as a malicious complaint fabricated by the Mother. There was no mention in his evidence in-chief that the issue of A.D.’s disclosure had come up previously on October 9 th , 2020 when he met with the worker.

In early January 2021, he was late returning A.D. from a visit, and he offered that A.D. was tired from running around at his house “as [his mother] keeps him isolated in a room on a video game”. [ 98 ] He blamed the Mother for missing A.D.’s access for 60 days in the early part of 2021 even though the February 1 st Order of Justice Phillips provided for his supervised access. As for surveillance cameras at his home, he indicated that he installed them at the suggestion of his former counsel, Ms.

Carroccia and he offered that she told him that “the Mother was the “most psychotic person” she had seen in 31 years.” [ 99 ] In-chief, he offered that Ms. K.C. had asked him to send her a video of his January 2 nd visit, where he said it proved he did not take A.D. out to the store and did not leave his house with him. H

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