) ) J.J.W. Applicant – v. –, 2024 ONSC 265

CITATION : W. v. F., 2024 ONSC 265 COURT FILE NO.: FS-19-0008197 DATE: 20240125 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) J.J.W. Applicant – and – K.F. Respondent ) ) ) ) ) ) ) ) ) Paul Riley, for the Applicant Alexander Novak, for the Respondent ) ) HEARD: October 30-31, November 1-3, 6, 14- 16, 2023 PUBLICATION BAN THIS CASE INVOLVES ALLEGATIONS OF CHILD SEXUAL ABUSE.

WHILE CHILD PROTECTION PROCEEDINGS HAVE NOT BEEN INITIATED, IT IS CONSISTENT WITH THE STATUTORY OBJECTIVES UNDERLYING S. 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017 , S.O. 2017, C. 14, SCHED. 1, AND S. 486.4 OF THE CRIMINAL CODE , RSC, 1985, C. C-46, THAT A PUBLICATION BAN ISSUE RESTRICTING PUBLICATION OF INFORMATION THAT MAY IDENTIFY THE CHILD. ACCORDINGLY, A PUBLICATION BAN ORDER IN THIS CASE IS MADE, PROHIBITING PUBLISHING OR MAKING PUBLIC INFORMATION THAT HAS THE EFFECT OF IDENTIFYING:

(1) THE CHILD WHO IS THE SUBJECT OF THIS FAMILY LAW PROCEEDING; AND

(2) THE CHILD’S PARENTS OR A MEMBER OF THE CHILD’S FAMILY. THE CHILD’S NAME, HIS PARENTS’ NAMES, AND ANY FAMILY MEMBER’S NAME HAVE BEEN INITIALIZED IN THIS JUDGMENT. Justice m. sharma Introduction [ 1 ] This Judgment concludes a 10-day trial. The issues deal primarily with parenting issues related to the parties’ now 6-year- old son, child support and spousal support. At trial, the Respondent advised she no longer sought an Order to relocate with the child. I describe the issues more precisely below. [ 2 ] What happened in this case has been tragic. I begin with an overview of facts.

It is longer than usual but necessary given the lengthy history and to frame the issues. Next, I identify the legal issues to be determined, followed by my assessment of credibility and analysis of the legal issues. Overview [ 3 ] The Applicant, J.J.W. (the “Father”) met the Respondent, M.F. (the “Mother”) in 2012 while he was working in Washington, D.C. on a temporary work permit. At the time, he was a nurse working in the field of infectious disease. He is a Canadian citizen. The Mother was an occupational therapist and an American citizen. [ 4 ] In 2013, the parties moved in together.

They were married in Toronto on August 17, 2013. For the first two years of their marriage, they continued to reside in Washington, D.C. [ 5 ] In April 2016, the parties moved to Toronto. Around this time, the Mother obtained her permanent residency allowing her to work in Canada. The Father, at the time, was completing a PhD at the University of Toronto in public health policy. The Mother said their move to Toronto was temporary.

The Father said it was permanent. [ 6 ] The Father is employed as a public health consultant with a multi-national company where he provides advice to governments internationally on infectious disease. He primarily works remotely from home. [ 7 ] The Mother, upon her move to Toronto, took steps to become licensed to work as an occupational therapist in Ontario. She

successfully completed her licensing exam. There were periods when the Mother returned to the USA to work. Her evidence, however, was that to become licensed in Canada, she had to have worked a certain number of hours prior to her licence being issued to meet a currency requirement. At the time of trial, she had not met her currency requirement. As an alternative to pursuing her currency requirement, she would have to return to school in Canada. [ 8 ] Both parties gave evidence of verbal and physical abuse, and coercive control exerted by the other.

Prior to moving to Toronto, both parties acknowledged they would argue. Their arguments grew after they moved to Toronto. In November 2016, while the Father was working abroad and the Mother was in Toronto, parties engaged in several days of abusive text messaging. In December 2016, parties travelled to Montreal for New Year’s Eve. There, they had an argument that led to physical violence. [ 9 ] In October 2017, the parties’ child, G, was born. The parties continued to argue. 1 st CAST Investigation [ 10 ] On January 30, 2018, parties met with a couples’ therapist, Ms. Sarah Nobel. Following this meeting, Ms.

Nobel contacted the Children’s Aid Society of Toronto (“CAST”). Ms. Nobel reported to CAST that she had met with the parties, that they reported to her name calling, yelling, and threats, and a recent incident where the Father choked and spat on the Mother. [ 11 ] Ms. Christina Borges from CAST was assigned. On February 3, 2018, she visited the parties at home. There is a dispute as to whether Ms. Borges accurately recorded an admission allegedly made by the Father about putting his hands around the Mother’s throat and spitting on her. Ultimately, Ms.

Borges, in consultation with her supervisor concluded that emotional harm to the child due to exposure to partner violence was not verified because the alleged historical partner violence occurred prior to G’s birth, and because the parties did not engage in arguments that would put G at risk. 1 st Criminal Charges [ 12 ] On January 28, 2019, the Father was home taking care of G while the Mother was out for the evening. When the Mother returned, the parties argued. The Father states that the Mother was drunk, became “hysterical”, took G and locked herself in a room.

The Mother says that she had to barricade herself in a room. At around 2 a.m., the Father called the Police to seek help. When the Police interviewed the Mother, she reported the alleged choking incident and a death threat from 2018, and a further death threat from that day. The Father was charged with one count of assault and one count of uttering a death threat from the alleged incident in 2018, and a further count of uttering a death threat from the early morning of January 29, 2019.

Conditions of the Father’s release did not limit his ability to have parenting time with G. 2 nd CAST Investigation [ 13 ] The second CAST investigation was launched because of the Police charging the Father on January 29, 2019. Ms. Rayna Morris-Cullin was assigned to investigate potential emotional harm / exposure to conflict by the child. [ 14 ] On or about February 21, 2019, CAST concluded its investigation. CAST verified that the child had been exposed to emotional harm and conflict because both parties acknowledged being in verbal disputes that the child witnessed.

CAST closed the file as the parties were living apart and managing their differences, and there were no further child protection concerns. Family Proceeding Launched [ 15 ] Following the criminal charges being laid, the Father’s lawyer arranged parenting time for the Father on February 12-13, 2019, but the Mother did not arrive at the designated transition location with the child. The Mother had taken the child to Michigan for six weeks, without notice to the Father. The Father, through his lawyer and police officials in Canada and Michigan, attempted to locate the Mother and the child.

Michigan Police ultimately found the Mother with the child in Michigan. The Mother returned to Toronto voluntarily. [ 16 ] The Father initiated this family Application on May 27, 2019. [ 17 ] Parties worked out an arrangement for the Father to have regular parenting time. [ 18 ] On August 21, 2019, despite the 2 nd CAST investigation being closed, the Mother’s counselor contacted CAST to ask that this case be reopened and to “view it as a case of violence against women”.

According to the CAST note, the counselor reported to CAST that the Mother had noticed “significant behavioural issues” and was questioning the Father’s parenting because the child’s behaviours were worse when he came back from spending time with the Father. The counselor also reported that the Father is a marijuana user and has mental health concerns. [ 19 ] On or around October 17, 2019, parties signed Minutes of Settlement that settled on an interim and without prejudice basis a parenting

schedule which saw the child spend five overnights with the Father over a two-week period, plus holiday time. This was subject, however, to review following a report from CAST on the recent allegations from the Mother’s counselor. [ 20 ] On October 23, 2019, Ms. Morris-Cullen concluded her investigation of whether the child was exposed to emotional harm or conflict, and the Father’s capacity to parent.

As part of her investigation, the Mother reported that she was worried about the Father’s parenting, that the child was clingy, had temper tantrums, showed anger towards a family cat, and returned to her from the Father with a bad odour as if he was not clean. [ 21 ] Ms. Morris-Cullen also met with the Father, who did not report any of the same behavioural concerns when the child was in his care. He admitted to Ms. Morris-Cullen of smoking marijuana socially, but never while caregiving or before his parenting time. He denied current mental health struggles but acknowledged prior work-related stress.

[ 22 ] Ms. Morris-Cullen concluded that she was not able to accurately assess the reason for the difficulties the child was experiencing when in the Mother’s care, and that his temper tantrums could be a product of his age (two years-old at the time) and a sense of frustration for not being able to accurately express himself. As with her prior investigation, she concluded that the child is likely being exposed to the emotional impact of the parties’ separation and did not verify any concerns about the Father’s capacity to parent. The 2 nd CAST file was again closed.

Spousal Support / Child Support Motion – November 13, 2020 [ 23 ] On or about November 13, 2020, parties settled on consent a motion brought by the Mother for child and spousal support.

Pursuant to the Order of Hood J., the Father was to pay $2,660 per month in spousal support commencing November 15, 2020, and pay child support in the amount of $1,044 per month, commencing November 15, 2020. [ 24 ] At trial, there was no argument that the Father had not adhered to this or subsequent court ordered support obligations. 1 st Criminal Trial – Uttering Death Threat in January 2019 [ 25 ] Ultimately, the Crown withdrew the two charges of assault and uttering threats from the alleged events in 2018.

The remaining charge, of uttering a death threat in January 2019, proceeded to trial. [ 26 ] On December 3, 2019, the criminal trial was heard. Moore J. of the Ontario Court of Justice found the Father was not guilty of uttering a death threat.

Conferences before Shore J. [ 27 ] On March 1, 2021, Shore J. presided over a settlement conference where parties reached a final agreement on property issues, namely that the Father would pay the Mother $52,500 in satisfaction of property issues arising from the breakdown of their relationship, and the Father would also pay $1,206 in monthly child support, and $3,323 in temporary monthly spousal support. The remaining issues for trial were the potential relocation of the Mother with the child to Washington D.C., and the residential

schedule of the child. [ 28 ] On July 9, 2021, and August 3, 2021, parties had further attendances before Shore J. The August 3, 2021 Endorsement indicated, in part: “The parties continue to make progress but have not reached a resolution of parenting and spousal support issues.” August 9, 2021 Settlement (in principle) of Family Proceeding [ 29 ] On August 9, 2021, parties appeared before Shore J. for a Trial Management Conference (“TMC”). The Endorsement indicated that parties had settled all outstanding issues but needed time to amend their agreement/consent order.

Shore J. ordered that if parties had not signed an agreement or consent order by September 10, 2021, a further TMC was to be scheduled. 2 nd Criminal Charge and 3 rd CAST Investigation [ 30 ] On July 29, 2021, prior to the case conference with Shore J. on August 9, 2021 , the Mother’s lawyer sent a letter to the Father’s lawyer. The letter reported that the child had recently described to the Mother a “feather tickle game” the child played with the Father, and when the child asked the Father to stop, he would continue touching him “everywhere on his body” and that this made the child feel “yucky”.

The letter also reported that in one instance, the child reported he was proud because he told the Father to stop, and that “this time” he did not touch the child’s privates. The child is reported to have said that when “his daddy touches his penis his penis gets ‘big’”. At the time of the alleged incidents, G was three and a half years old. [ 31 ] While the July 29, 2021 letter from the Mother’s counsel alluded to both lawyers’ professional obligations to report “alarming disclosure” from the child, the Mother’s lawyer in her letter did not “necessarily suggest” CAST be involved.

Rather, the letter suggested that the child begin play therapy. It asked the Father to consent to play therapy, which would also be beneficial to address the child’s behavioural issues. [ 32 ] The Father testified that he did not fully understand the letter. He understood it as a threat to report these allegations to CAST, which he states were false, if he would not consent to play therapy. [ 33 ] On Saturday August 7, 2021, the child’s maternal grandmother, PK, contacted CAST to report physical and sexual harm to the child.

The CAST note records that the Mother was contacted by phone the same day at 4:19 p.m., and that she had advised the CAST worker that the Father’s next scheduled parenting time with the child was on August 9, 2021 at 5:00 p.m., and that they also had a case conference with a family court judge on August 9, 2021. [ 34 ] Two days later, on August 9, 2021 at 12 noon, parties had their conference before Shore J. where parties settled all issues in this case, including parenting. [ 35 ] Later in my Judgment, I describe in greater detail the events of August 9, 2021.

For the purpose of this overview, the child was interviewed by Det. Constable (“DC”) Michael Agostinho of the Toronto Police. The interview was observed by a new case worker at CAST, Ms. Carrie Hoffelner. Following those interviews and some investigation by DC Agostinho, DC Agostinho reported to Ms. Hoffelner on August 10, 2021 that he will likely not lay any charges. Immediately thereafter, according to the CAST note, Ms. Hoffelner left a voicemail message with the Mother asking to meet with her again the next day on August 11, 2021. Ms.

Hoffelner testified that the purpose of this meeting was for safety planning for the child when in the Father’s care, unrelated to the criminal investigation and consistent with CAST’s child protection mandate. [ 36 ] On August 11, 2021, when the child was interviewed a second time, although the first by Ms. Hoffelner, the child provided

additional details of the alleged sexual abuse that was not reported by the child during his prior interview with DC Agostinho on August 9, 2021. Because of this new disclosure, DC Agostinho then conducted a further interview of the child. As a result of the new details of abuse disclosed by the child, the police charged the Father with sexual assault, sexual interference and invitation to sexual touching of a child. He surrendered himself into custody on August 12, 2021. [ 37 ] The Father has not seen his son since. [ 38 ] The Father has consistently denied all allegations of inappropriately touching his son.

At trial, his evidence was that the Mother’s family or others, intentionally or unintentionally, raised the possibility with the child that the innocent “tickle feather” game was sexual in nature. This resulted in a false narrative in the child’s mind. Or he argues that the Mother, CAST and, in particular, Ms. Hoffelner from CAST, intentionally or unintentionally, suggested to the child and convinced the child that sexual behaviour had occurred when, in fact, it did not.

Continued Family Proceedings [ 39 ] On September 2, 2021, Monahan J. (as he then was) heard an urgent motion brought by the Father for a resumption of the parenting

schedule that had been in place prior to the criminal charges, and an Order that the Mother not be permitted to travel outside Canada with G. The Mother brought a cross-motion, seeking a dismissal of the Father’s motion, an Order for sole decision-making, and leave to travel to the USA with G. [ 40 ] On September 8, 2021, Monahan J. released reasons. Among the Orders made, Monahan J. denied the Father a resumption of his parenting time with G, but he did permit the Father to have parenting time in accordance with bail conditions.

He permitted the Mother to travel to the USA for a time-limited purpose on 30-days notice to the Father, but he did not permit the Mother to travel to the USA for work purposes due to concerns the Mother may seek to establish a new status quo . [ 41 ] On September 13, 2021, parties appeared before Shore J. for a trial management conference. At this appearance, parties consented to an Order for the Father to have supervised parenting time with the child for four hours each week. The parenting time was not to occur at CAST’s offices or a supervision centre.

Notably, the Order granting the Father parenting time was subject to the approval of CAST to ensure CAST had no safety concerns with the supervision terms. [ 42 ] The Father took prompt steps to arrange private supervision services, in accordance with the Order made by Shore J. [ 43 ] On November 12, 2021, Ms. Hoffelner on behalf of CAST wrote to the parties advising that the allegation of sexual harm to G had been verified. It set out conditions under which supervised parenting time could occur. Those conditions included a psychosexual assessment of the Father and resolution of the criminal charges.

The letter acknowledged that the Court issued an order permitting access under certain conditions, but at this time, CAST concluded there was no emotionally safe way to support the Father’s access to the child. [ 44 ] The evidence at trial was that the Father, eager to have the psychosexual assessment conducted so that he could resume parenting time with G, even if it were supervised, sought to have the psychosexual assessment performed by CAMH. However, the Father discovered that CAMH would only perform such an assessment for those convicted of sexual offences involving a child.

CAMH, therefore, would not do such an assessment. Even if the Father were acquitted, CAMH would still not perform the testing because it would not conduct such an assessment for parenting purposes. The Father reported this to CAST and inquired if there were other ways to have the psychosexual assessment done by another provider, but CAST would not waive this condition nor recommend another assessor.

As such, the Father has not had any parenting time with G since the charges were laid on August 11, 2021. 2 nd Criminal Trial [ 45 ] On February 24, 2023, Hogan J. of the Ontario Court of Justice released reasons for judgment, finding the Father not guilty of any of the charges relating to sexual abuse of the child. [ 46 ] When the decision was released, the Father was out of the country. 4 th CAST Investigation [ 47 ] Notwithstanding the Father’s absence from the country, and on the same day Hogan J.’s decision was released, at least two individuals called CAST.

They reported that because the Father no longer had criminal conditions restricting his access to the Mother or the child, they worried that the Father would take unilateral steps to resume his parenting time. [ 48 ] The first caller was a Boost Child and Youth Advocacy Worker. She reported to CAST that the Mother feared that the Father or his sister (who lived in Calgary) would show up at the Mother’s home and try to take the child. The second was DC Agostinho.

From the CAST note, it records him as reporting to CAST that “he wanted to make CAS aware and believes that [the Father] will feel vindicated as he was not found guilty. He advised that [the Mother] is quite worried about this ruling and what [ the Father] may do.” [ 49 ] Ms. Jenna Burnett was assigned to this fourth CAST investigation.

On May 30, 2023, the investigation was closed with a finding that sexual harm to the child was verified, and that there have been no changes in circumstances that would mitigate the potential risk of further sexual, psychological and physical harm to the child if he had contact with his Father. It recommended a trauma assessment that would inform a safety plan for future contact. Trauma Assessment [ 50 ] Parties and CAST agreed to have Ms. Shiona Robertson conduct a trauma assessment of the child. She is a social worker and completed a masters in counselling in psychology, with 23 years experience.

In her work, she often deals with children in the context of child abuse allegations and reunification. Ms. Robertson completed a report following her assessment of G and gave evidence at trial.

[51] Ms. Robertson’s assessment was not a parenting assessment. She did not seek to assess the allegations of parental alienation,or the truthfulness of the allegations made by the child. Ms. Robertson gave evidence at trial. She assessed the child as having a lowlevel of trauma, lacking symptoms. She ruled out more serious developmental trauma. She said the trauma could be a product of thealleged abuse, of potentially being told to make the abuse allegations, or of being exposed to the parties’ conflict. [52] Parties agreed mid-trial to adopt her recommendations.

A mid-trial Order was made implementing the recommendations. The mid-trial Order required G to commence play therapy with Ms. Robertson immediately. After three sessions, or such furthersessions as Ms. Robertson deems necessary to develop a rapport with the child and to prepare him for a reunification process, Ms.Robertson will assess the child’s needs with the expectation that the reunification process as recommended by Ms. Robertson willunfold. The reunification process would see 4-way sessions occurring, with the child and Ms. Robertson, and the Father and histherapist, Ms. Colleen Kamps. Ms.

Kamps also gave evidence at trial. [53] The Father was concerned about the role of the CAST in the reunification process, arguing they have not been independent orobjective. The Mother did not want CAST to be restricted in their involvement. As part of my mid-trial Order, I ordered on a temporaryand without prejudice basis that CAST not interfere or hinder the reunification process and that they are to remain at arms-length at alltimes. ISSUES [54] The issues in this case, as raised by the parties in their pleadings, and as adjusted based on the parties’ submissions at trialmay be stated as follows: A.

Parenting 1. What parenting orders should be made with respect to the child (parenting time, communications, decision-making, mobility)? 2. What orders, if any, should be made restricting or requiring the involvement of the CAST or Police to carry out any parentingorders made? B. Financial Orders 3. What are the parties’ incomes for support purposes? 4. What amount of child support should be payable by whom, and whether a retroactive award of child support should be made, eitherto the Applicant or the Respondent? 5.

What orders, incidental to support, should be made (e.g., maintenance of medical, health and dental benefits for the child, lifeinsurance)? 6. Is the Respondent entitled to spousal support, and if so, in what amount and for which duration? C. Other Orders 7. What mobility restrictions, if any, should be in place? 8. Has the Father established facts to support the tort of malicious prosecution, and if so, what damages should be awarded? 9. Should a preservation order or accounting be ordered? 10.

Should an order issue restraining one party from annoying, harassing or molesting the other, and restraining them from being within100 metres of the other? 11. Should a Divorce issue? Credibility [55] Before turning to the issues, I provide an assessment of the key witness’ credibility. [56] The Court must consider many factors when assessing credibility.

It must do its best to articulate “the complex interminglingof impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events": R. v.Gagnon, 2006 SCC 17 (S.C.C.), at para. 20. [57] The Court may accept some, none or all of a witness’ evidence: R. v. D.R., (SCC), [1996] 2 S.C.R. 291 perL’Heureux-Dubé J. (in dissent in the result) at p. 318; R v. Cunsolo, 2011 ONSC 1349 at para 228. [58] The assessment of credibility is a “holistic undertaking, incapable of precise formulation”: Dunford v. Hamel, [2018] ONSC3427 at para. 20.

However, certain factors are often relied upon in undertaking an assessment of credibility, as listed more fully inMcBennett v. Danis, 2021 ONSC 3610 at para. 41: a. inconsistencies in the evidence, which may exist between a witness’ evidence and various other things – the evidence of othercredible witnesses, the documentary evidence, or the witness’ previous evidence; b. whether a witness has a motive to deceive;

c. whether the evidence is inherently improbable and implausible? Is it “in harmony with the preponderance of the probabilitieswhich a practical and informed person would readily recognize as reasonable in that place and in those conditions?" (Faryna v. Chorny, (BC CA), [1952] 2 DLR 354 at at p. 357); d. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”; and e. Whether a witness is able to make concessions or gives self-serving evidence. The Father [59] I begin with the Applicant.

I found the Father to be a highly credible and reliable witness. [60] The Father was organized, straightforward and precise in giving his testimony. His answers were inherently logical, plausiblewithin the context of events that were happening at the time, and consistent with the documentary evidence in this case. When histestimony was inconsistent with a note recorded by CAST, notably the alleged choking and spitting incident, he provided a plausibleexplanation as to why the CAST note may not have been accurate.

I found no other instances of inconsistencies with his testimony. [61] At times, he was defensive and argumentative during his cross-examination. He explained, however, that he felt that he wasbeing re-tried on charges for which he had already been acquitted, and that he had already taken responsibility in his examination in chieffor certain mistakes he made, notably instances of verbal abuse and physical violence. He was emotional at times, particularly whentestifying about the last time he saw his son – some 830 days prior to trial.

He was otherwise forthright and not hesitant in answeringquestions. [62] The Father made concessions. He admitted in chief and while cross-examined that he inappropriately engaged in abusive textmessaging with the Mother while he was in South Africa from November 15 to 17, 2016. He testified that he takes responsibility for thewords he used and that it was a mistake. He explained the circumstances around these text messages. He also admitted to slapping theMother when the parties were in Montreal in December 2016 for New Years’ Eve, however this was in response to her hitting him with aremote control.

He also admitted that there were other instances when the parties engaged in verbal abuse. [63] While he was angry at times, I did not find this created a motive to deceive the court. The Father believed that he and his sonhave been a victim of the Mother’s false criminal accusations, and that the Mother has responsibility for letting or encouraging either herfamily or CAST sexualize an innocent game with the child. Notwithstanding what he believes the Mother may have done or may havebeen responsible for, he testified that he does not blame the Mother and that he did not wish to attack her.

Rather, he places primaryblame on Ms. Hoffelner at CAST. The Mother [64] The Mother’s testimony, on its own, left a general impression of being credible. She explained the positions she was takingand events that were plausible based on the events or circumstances unfolding at the time. [65] Much of her testimony focussed on coercive control and abuse she endured.

It was possible for the Mother to provideimportant corroborating evidence, but she did not do so. [66] For example, she testified about frequent text messages sent by the Father that were abusive in nature, not unlike the messagessent by the Father in November of 2016. In fact, she testified that she had years of such text messages. However, she failed to introduceany evidence of those text messages. [67] She also testified that at a medical appointment at Mt. Sinai Hospital, a physician asked the Mother, while the Father was notin the room, whether the Mother was a victim of human trafficking.

She stated that this was because the doctor “did not have a goodfeeling about what was going on in the relationship and what [the Father] was asking and how he was trying to control the situation in thehospital room, and [the Mother] was the patient who was there, and [the doctor] did not want him anywhere near the situation.” However, the Mother did not call the doctor to testify about what the doctor had observed.

She said that she also had texts of the Fatherbeing upset after he was removed from the hospital room, but she did not introduce those text messages. [68] There was other critical evidence that the Mother alluded to at trial that was not introduced into evidence. She testified that onJuly 16, 2021, while videorecording the child outdoors on a boardwalk, the child spontaneously recounted some of the allegations of himbeing improperly touched by the Father. However, that video evidence was not introduced as evidence. [69] Her evidence suggested that she took unreasonable positions in this litigation.

For example, she testified that when the partiesdisagreed on third party professionals to become involved in this case, she objected to the Father proposing the names of threeindividuals and having her select one of the names proposed. She testified that she wanted a voice, and this process denied her a voice. However, she did not provide evidence of times when she proposed the names of three individuals for the Father to select.

It is neitherunreasonable nor uncommon for disputing parents to settle disputes about the selection of professionals by one party proposing thenames of three professionals and the other selecting one. [70] Some of her evidence was not plausible. For example, she testified that she had taken national registration exams in 2017 thatwould allow her to work as an occupational therapist in Ontario. However, she then testified that because the parties never intended tostay in Canada, she never pursued obtaining her licence by completing her currency requirement. It is unclear why an individual would

complete exams to be licenced to work in Canada if there was never an intention to remain in Canada. [ 71 ] Some of her testimony was misleading or inconsistent with records. On August 9, 2021, when parties appeared before Shore J., the Mother testified that she had agreed to a 50/50 shared parenting

schedule on a week about basis. This is consistent with Shore J.’s Endorsement of the same day stating parties had settled all issues. The Mother acknowledged that this was after her lawyer had written to the Father’s lawyer on July 29, 2021 raising concerns about the child’s disclosure of abuse. The Mother testified that the issue of this disclosure was raised with Shore J. during a breakout room discussion at that case conference, and that Shore J. responded that it would be the responsibility of the child’s play therapist to raise any additional disclosure from the child.

The Mother further testified that while at the case conference on August 9, 2021, she received a text message from CAST asking for a safety planning meeting with the child that same day. I find the Mother’s testimony on these issues was misleading or false. [ 72 ] First, the discussions she had at the conference are privileged.

Even if I were to admit her assertion that she advised Shore J. at a case conference on August 9, 2021 (or possibly the prior conference on August 3, 2021) about the child’s disclosure, I reject any suggestion that she was transparent in the family court proceedings with respect to the CAST investigation.

The CAST note on Saturday August 7, 2021 states that the Mother had reported to the CAST worker during a telephone call at 4:19 p.m. that “there is a court date on Monday @ 9am and that the family court judge is aware of [G’s] disclosure.” This documentary evidence shows the Mother was clearly aware and had been involved in the CAST investigation prior to the August 9, 2021 case conference when parenting issues were settled with Shore J. [ 73 ] I reject any assertion that Shore J. was advised of the CAST investigation when the settlement was reached.

In her Endorsement of July 12, 2023 at a motion, Shore J. wrote: “On August 7, 2021, two days prior to the conference [on August 9, 2021], the Mother made a complaint to CAS, concerned that her son has been sexually assaulted by the Father. She said nothing at the conference, when the settlement was reached.” [ 74 ] Parties agreed that the case conference before Shore J. on August 9, 2021 was held at 12 noon. The CAST note from this date records that Ms. Hoffelner spoke with the Mother at 10:40 a.m., prior to the attendance before Shore J. According to Ms.

Hoffelner’s notes, the Mother is reported to have said to Ms.

Hoffelner the following: “he is supposed to see him today at 5 she doesn’t have a car, taxi is possible she doesn’t know how long court will be she was worried she said her son was sick he called 911 on her claiming that her son was being abused and neglected he will say I’m in violation of the custody order she says this has to be addressed it is peculiar timing, she doesn’t know what is true and what isn’t she wants him to tell his truth contact info shared taxi for 2:30 at her place [address] in front of the building” [ 75 ] This confirms the Mother was aware, prior to the case conference before Shore J., that she would be bringing the child to CAST later that day by taxi.

Her testimony, that she learned during the case conference by way of text message that she was to bring the child to CAST for a safety planning meeting, was clearly false. Up until trial, the Mother had been seeking to relocate to the USA with the child. The way in which she was engaging CAST, while at the same time, settling parenting issues in this Court, suggests improper motives. [ 76 ] The Mother did make some concessions.

For example, she admitted to attacking the Father in Montreal, consistent with the Father’s testimony. [ 77 ] However, she made no concessions with respect to the Father’s capacity to parent. She made minimal concessions of participating or instigating any arguments with the Father. In her testimony, she did not deny some factual claims made by the Father, such as her throwing dishes in the home. Her testimony in chief was focussed primarily on attacking the Father. [ 78 ] She refused to concede that the child’s recounting of the allegations, given his age, may not have been accurate.

On cross- examination, when confronted with the inconsistent testimony of the child at the second criminal trial around his reports of sexual abuse or as reported to CAST or the Police, the Mother acknowledged that she will never know whether the Father engaged in the sexual abuse, but regardless, she believed her son. Given the inconsistencies, her admitted lack of direct knowledge as to what actually occurred, and the child’s age of three and a half when the events allegedly occurred, I questioned whether her reasoning was informed by logic or her emotions.

I also questioned whether she participated knowingly or unknowingly in developing her son’s narrative.

[79] For these reasons, and despite her otherwise compelling testimony, I am not satisfied with the truthfulness or reliability of theMother’s evidence. Ms. Carrie Hoffelner & Ms. Jenna Burnett [80] Ms. Hoffelner testified at trial. She provided helpful evidence with respect to CAST processes, and the two interviews withthe child on August 9 and 11, 2021. However, I found some of her evidence to be defensive or difficult to understand. Ms. Hoffelnerwas on bereavement leave during the trial due to a death in her family.

I viewed her evidence from the perspective of someone who wasgrieving, which may have impacted the quality of her testimony. [81] Ms. Burnett also testified. Her evidence was focussed on events that followed the Father’s acquittal of sexual offencesinvolving his son. [82] As I discuss later in my reasons, I am concerned about the positions Ms. Hoffelner, Ms. Burnett and CAST took with respectto the objectivity of their investigations, and positions they took that impacted this family litigation. While I appreciate the statutorymandate of CAST, I was not persuaded that Ms. Hoffelner, Ms.

Burnett and CAST sufficiently considered positions other than thoseadvanced by the Mother or those who advocated on her behalf. In particular, no explanation was provided as to why CAST imposed thecondition that the Father have a psychosexual assessment by CAMH before supervised parenting time could occur, when CAST and Ms.Hoffelner was specifically advised that such an assessment would not be possible. The condition was impossible for the Father to meetand ought not have been made by CAST if they knew it was impossible for him to meet. No explanation was provided by Ms.

Hoffelneras to why this condition was not removed. For all these reasons, I was left questioning the objectivity of their evidence at trial. DC Agostinho [83] I found DC Agostinho to be candid and forthright in giving his evidence. On cross-examination, he admitted in hindsight howhe should have questioned the Mother about potential coaching of the child. Like Ms. Hoffelner and Ms. Burnett, I questioned hisobjectivity. Following the Father’s acquittal of the sexual offences involving G, he called CAST after speaking with the Mother.

Hecalled to report that, following the Father’s acquittal, he believed the Father “will feel vindicated” and that the Mother was worried whatthe Father might do. These actions, by an investigating officer and following an acquittal, suggest that he lacked objectivity and wasaligned with the Mother. If DC Agostinho had reasonable and probable grounds to suspect the Father would engage in a potential crimeof child abduction following his acquittal, he ought to have exercised his authority as a police officer rather than rely on his position as apolice officer to influence CAST’s investigation. ANALYSIS OF ISSUES A.

PARENTING ORDERS Issue 1: What parenting

schedule should be ordered? [84] In making a parenting order, the Court shall only take into consideration the best interests of the child: Divorce Act, RSC 1985, c. 3 (2nd Supp.), s. 16(1).

The Court must consider all factors related to the circumstances of the child, including those factors in s.16(3) of the Divorce Act, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s. 16(3). [85] In considering the best interests of the child factors, I begin with the allegations of family violence, and in particular, theallegation that the Father perpetrated sexual violence against the child.

Family Violence [86] In considering family violence in this case, I am mindful that domestic violence allegations are notoriously difficult to prove. Direct or indirect exposure to family violence can have significant impact on the lives of children: Barendregt v. Grebliunas, 2022 SCC22 at paras. 143 – 144. An assessment of the allegations must be grounded in the judge’s assessment of all the evidence in acase. [87] I have explained why I found the Father’s testimony to be credible and reliable. He vehemently denied inappropriate touchingof his son of a sexual nature.

His evidence was that he had purchased a craft set for the child around Thanksgiving that included afeather. He denied ever referring to it as a tickler, but he admitted to playing with his son with the feather and that the feather was usedto tickle him on his cheeks, nose and toes. He encouraged his son to take items from his house to the Mother’s home. In October 2020,he dropped off his son with the Mother with the feather. [88] The Father testified that he understood from the criminal trial that his son participated in a Zoom call with the Mother and herfamily where he showed those on the call the feather.

During this call, the Father alleges that members of the Mother’s familysexualized the feather. The Mother’s evidence at this trial was consistent. She admitted that on this Zoom call, G introduced the featheras a “tickler”. The Mother’s brother responded in jest to the effect of “That’s what you tell your kid!” Then everyone laughed about it. The Mother acknowledged in cross-examination that her brother was inferring an adult meaning.

The Mother later testified that shethrew the feather in the garbage, after G disclosed the alleged sexual touching. [89] The only other potential witness to the alleged sexual abuse was the child. However, all of the evidence from G is hearsay. At trial, it was received through what the child is alleged to have recounted to the Mother, DC Agostinho, and Ms. Hoffelner. The childalso gave evidence at the criminal trial.

There were no other witnesses of the alleged sexual abuse. [90] Hearsay evidence of a child may be admitted for the truth of its content where the underlying principle behind the hearsayrule of necessity and reliability are met: R. v. Khan, (SCC), [1990] 2 SCR 531.

[91] It is unusual and not desirous for a child to give direct evidence in a family proceeding. In this case, the child has alreadytestified once at a criminal trial. He has also been questioned by the Police and CAST about the allegations on several occasions. Giventhe history of this case and the fact that the child has already testified at the prior criminal trial, it would likely have been traumatic forhim to give evidence once again.

Therefore, I find that it is necessary to rely on his prior testimony and other out of court statements. [92] In assessing the reliability of what the child said previously about the alleged sexual assault, I find that what the child mayhave reported to the Mother is not reliable. The Mother had motive to deceive. She could have produced corroborating evidence in thenature of the video recording she took of the child in July 2021, but she did not adduce that evidence at trial. She could have made acomplaint to CAST, if she had reason to believe the allegations, but she chose not to – instead, her mother did.

This leads me to questionthe Mother’s motives. The allegations arose in the context of this highly contested family litigation. As I explain below, the child wasalso not consistent in what he reported. [93] I also have reservations about the reliability of what the child reported to DC Agostinho and Ms. Hoffelner. [94] When the child was interviewed by DC Agostinho on August 9, 2021, which was observed by Ms. Hoffelner, Ms.

Hoffelner’snotes report the child said the following: his dad touches the child, after “the tickle feather game”; that “he needs to go to jail”; and that“mommy” said that the Father needs to go to jail. When asked if his dad touches his privates, which the child explains as parts of hisbody used “to go potty”, the child first says his dad touches him on his face and feet, but shortly after said “he touches me on myprivate” while they are in bed and while he is wearing his clothes. The child further stated the neighbors come when he screams forhelp. [95] I do not find this account to be reliable evidence.

First, when the child was asked to tell DC Agostinho about his Father, theconversation according to the CAST note prepared by Ms.

Hoffelner was as follows: “do you see daddy tell me about daddy ok at my dad’s house dad touches me he starts touching me and then after he does the tickle feather game he touches me he uses feathers for tickle game he needs to go to jail who said that mommy…” [96] The fact that this 3.5-year-old child, when asked about his Father, immediately launched into being touched by his Father andthat his Mother told the child that his Father needs to go to jail suggests that the child was primed and influenced by the Mother.

DCAgostinho, during his cross-examination, admitted that he could not recall asking the Mother about her conversation with G about theFather going to jail. DC Agostinho stated he kept the issue of possible coaching in the back of his mind, but that did not recall discussingwith the Mother any possible coaching.

He admitted on cross-examination that, in hindsight, it would have been an important question toask the Mother. [97] Second, the alleged touching that was reported was “over the clothes” and could have been very innocent, as part of normalplay between G and his Father. [98] Third, DC Agostinho investigated whether neighbours had responded to calls of the child screaming, as G had reported this toDC Agostinho. DC Agostinho, after contacting neighbours, testified that he was unable to find neighbours who would corroborate whatthe child had said.

This was one of the factors DC Agostinho considered when he determined on August 10, 2021 that no charges werelikely to be laid. I note, however, that the absence of corroboration is not a sufficient basis, on its own, to reject hearsay evidence: R. v.Khan, citing R. v. B. (G.), 9SCC), [1990] 2 SCR 30 at p. 55. [99] On August 11, 2021, the child’s recounting of the alleged sexual assault changed significantly. This was after DC Agostinhospoke with Ms. Hoffelner on August 10, 2021 to say that charges would not be laid. Ms. Hoffelner’s notes indicate that this was becauseDC Agostinho reported that (

a) there was no corroboration with neighbours; (

b) there were speech issues with the child; (

c) that whilethe child was clear about his dad touching him, the child did not report him touching his Father, and (

d) there was no touching reportedunderneath clothes. [100] Ms. Hoffelner’s notes reveal that two minutes after this call with DC Agostinho on August 10, 2021, Ms. Hoffelner left avoicemail message with the Mother asking to see her and G on August 11, 2023. Ms. Hoffelner testified that the purpose of this meetingwas to engage in safety planning. She explained that even though the criminal process would not be unfolding, she still had to conduct asafety assessment of the child. [101] At the interview on August 11, 2021, the child reported more details of the alleged touching. Ms.

Hoffelner testified that it isnot CAST’s usual practice to audio or video record an interview with a child; it is the police who normally records interviews. Ms.

Hoffelner said that she recorded in CAST’s note keeping system, minutes after her interview with the child, most questions and answersput to the child but not all. [102] According to Ms. Hoffelner’s note, the child reported to Ms. Hoffelner on August 11, 2021 that (

a) his dad touches the child’spenis and it gets big; (

b) his dad touches his bum and then makes it hard; (

c) his dad’s hand touches the child’s penis; and (

d) his dadtouches the child “through” the child’s clothes; and (

e) his dad pulls his pants down and makes the child touch his dad’s penis. [103] What is remarkable from this CAST note is that, in response to the second question put to the child, the child immediatelylaunches into the allegation of sexual assault with the further particulars that were lacking in the initial interview with DC Agostinho. Ms.

Hoffelner testified that she then stopped the interview, consistent with protocol, and reported the new details to her supervisor. [104] On August 11, 2021, DC Agostinho, who had been working in the same building that day – the Child Youth and AdvocacyCentre – was advised of the new allegations. He conducted his second interview of the child as a result of the new details reported by Gto Ms. Hoffelner. Upon review of Ms. Hoffelner’s notes of DC Agostinho’s second interview, the child repeated some of the samedetails reported to Ms.

Hoffelner earlier that day. [105] I find that what the child reported to DC Agostinho and Ms. Hoffelner on August 11, 2021 was not reliable for the followingreasons. [106] First, both DC Agostinho and Ms. Hoffelner testified that they were alive to the possibility of G being coached. Both wereaware from the August 9, 2021 interview that the Mother had told the child that the Father “needs to go to jail”. Ms. Hoffelner testifiedthat the information G shared on August 11, 2021 was “very detailed for a child of his age”. Ms. Hoffelner left a voicemail message forthe Mother on August 10, 2021.

As this message was left two minutes after Ms. Hoffelner’s call with DC Agostinho, it is reasonable tologically infer that Ms. Hoffelner advised the Mother that charges would not be laid. It is possible she also explained the reasons why. Despite all of this, when the child promptly reported on August 11, 2021 further details of the alleged abuse filling in the preciseevidentiary gaps identified by DC Aghostino, neither Ms.

Hoffelner nor DC Agostinho questioned the Mother to assess whether coachinghad occurred between August 9 and August 11, 2021. [107] Second, on August 11, 2021, the child promptly reported to Ms. Hoffelner and DC Agostinho after the first question or two, ofthe new and significant details of abuse. This suggests the child was primed to provide these additional details.

While I accept that Ms.Hoffelner did not record in her notes a verbatim recounting of her interview with G on August 11, 2021, her notes suggest that the child,without hesitation, promptly reported the missing details of the abuse. [108] Similarly, the child promptly reported the further details when he was interviewed by DC Agostinho on August 11, 2021. Thechild’s interview with DC Agostinho was video recorded, but that recording was not introduced as evidence in the family trial.

HoganJ., who did view this recording of the second interview with DC Agostinho, stated in her reasons at para. 12: In G’s second interview on August 11, with DC Agostinho he was asked at the beginning of the interview, “Do you remember the mostimportant thing when talking to a police officer – you do remember what that is, the rule? What is it? [G] immediately replied, “Thatmy Dad touched me”. He then went on to state that his Dad touches his penis and makes it big and he keeps it in my bum and makes ithard.

He stated at that point in the interview that when this happened his clothes were on but when his Dad touches his penis his Dad’shand is inside his clothes. When asked by DC Agostinho to demonstrate for him what Daddy’s hand does he can’t do so and reverts tosaying – “just touching”. When asked for more detail he at first says he is sitting when the touching happens but then states that his Dadmakes him lay down. DC Agostinho then tells him that last time he didn’t say anything about “penis” and [G] answers that he did andthen says his Mommy told him to tell about penis. [109] Neither DC Agostinho nor Ms.

Hoffelner, at the trial before me, offered evidence to suggest that that the child did not promptlyreport the additional details of abuse when he was interviewed on August 11, 2021. The fact that Hogan J. found, from the videoevidence, that “Mommy told [DC Agostinho] to tell about penis” further supports a finding that the Mother influenced the child. All ofthis suggests the child had been primed by the Mother. [110] Third, there is evidence to suggest that the Mother, intentionally or unintentionally, coached G. The Mother denied doing so.

Although, she did give evidence that establishes she had communicated negative messages to G with respect to the Father, which mayhave contributed to or created G’s narrative. It is not disputed that she told G that if “someone” is touching G and that person does notstop, G should kick the person in the face. She also told G that people who touch a child’s privates should be in jail. The Mother’stestimony was that these were general messages communicated to G about anyone, and not directed at the Father.

However, if thesemessages were communicated to G around the time of the disclosure, when the Mother was worried about potential sexual abuse andasking G questions about touching and the tickle feather game, one would expect G to make a connection to his Father. G told DCAgostinho and Ms. Hoffelner that the Mother told G that his daddy should go to jail. I find that the evidence establishes that that theMother influenced the narrative that G reported to DC Agostinho and Ms.

Hoffelner. [111] Fourth, Hogan J., who did hear the child’s testimony during the criminal trial and after considering the legal principles forassessing a child’s evidence, rejected the child’s evidence. She concluded that the child’s evidence was inconsistent, that it changedfundamentally, and that the child was capable of making up a story: R. v.

W., Reasons for Judgment, Hogan J., released February 24,2023, paras. 41, 48 – 53. [112] I asked counsel to provide authority as to whether I may rely on Hogan J.’s evidentiary findings, recognizing of course thatdifferent standards of proof apply to the ultimate issue of whether the Father engaged in sexual touching of his son in the criminalcontext (i.e., proof beyond a reasonable doubt) and in the family context (i.e., on a balance of probabilities). The Father’s counselreferred me to Malik v. Malik, 2019 ONSC 5959 , and British Columbia (Atty. Gen.) v. Malik, 2011 SCC 18.

The Mother’scounsel did not address this issue. [113] The cases cited are not directly on point. They stand for the proposition that “a judgment of a prior civil or criminal case isadmissible, if considered relevant, as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided

the parties are the same or were themselves participants in the prior proceedings on similar or related issues”: see British Columbia (Atty. Gen.) v. Malik , 2011 SCC 18 at para. 7 . In this case, the issue is whether Hogan J.’s evidentiary findings and conclusions with respect to the reliability of G’s evidence at the criminal trial should be afforded any weight because G did not testify at this family trial.

This trial is not an interlocutory proceeding. [ 114 ] I find that it is appropriate to admit and afford some weight to Hogan J.’s findings and conclusions with respect to her assessment of G’s evidence for the following reasons. The parties and the issues are the same. Hogan J. had better and more complete evidence than what was presented at this family trial. G testified at the criminal trial, but not the family trial. There was video evidence of interviews with G at the criminal trial, not entered as evidence in the family trial.

The Mother had opportunity at this family trial to make argument or adduce other evidence that might result in me making a different evidentiary finding than Hogan J. with respect to the reliability of G’s evidence. She did not make new arguments, nor did she rely on new evidence. In fact, she relied on less evidence at the family trial than was presented at the criminal trial (e.g., she did not adduce the video recording of the child’s interview with DC Agostinho, or the video of the child on the boardwalk reporting inappropriate touching to the Mother). [ 115 ] In British Columbia (Atty. Gen.) v.

Malik , Binnie J. stated at para. 37: The admissibility of prior civil or criminal judgments in subsequent civil proceedings, and the effect to be given to them, must be seen in the broader context of the need to promote efficiency in litigation and reduce its overall costs to the parties.

The doctrines of res judicata , issue estoppel and abuse of process are all part of this larger judicial policy but they do not exhaust its potential. [ 116 ] I find that an equally compelling judicial policy, like the need to promote efficiency in litigation and reduce costs to parties, is the need to avoid having a child testify twice.

This, in my view, is a sufficient justification to admit prior evidentiary findings from a criminal judgment in a subsequent family trial, where the parties and the issues are the same or similar. [ 117 ] For these reasons, I find that hearsay evidence of G, reporting inappropriate sexual touching by the Father to the Mother, DC Agostinho and Ms. Hoffelner, to be unreliable. There is strong evidence to suggest that the Mother had a role in what G reported to these individuals, and that she influenced what G reported to these officials.

While I accept the child made the statements attributed to him, I am persuaded on a balance of probabilities that the statements were a product of G being influenced, either intentionally or unintentionally by the Mother or her family, to have G believe that innocent play by the Father was sexual in nature. As stated by Hogan J., I am also persuaded that the child was capable of making up a story. Even if I were not to admit or give weight to Hogan J.’s evidentiary findings, I would still conclude, on a balance of probabilities, that the alleged sexual touching did not occur.

I prefer the reliable and credible evidence of the Father over the unreliable, hearsay evidence of G. Other evidence of family violence [ 118 ] I refer to the evidence of verbal and emotional abuse in chronological order. [ 119 ] Parties admitted to having arguments prior to moving to Toronto in 2016. According to the Father, he and the Mother argued a lot. He saw the move to Toronto as being an opportunity for a fresh start in their relationship. [ 120 ] In November 2016, when the Father was working out of the country, the parties engaged in a heated and abusive text message exchange.

The Father was taken to the parties Whats’ App text messages from November 15, 2016 to November 17, 2016, when the Mother was contemplating having an abortion. He admitted in chief and while being cross-examined that this multi-day text message exchange with the Mother constituted significant verbal abuse directed by him towards the Mother.

He explained, however, that while he fully respected the Mother’s right to choose to have an abortion, he was angry that the Mother was making this decision without hearing his views and without obtaining medical advice regarding fears the Mother had regarding her pregnancy. [ 121 ] Having reviewed this text message exchange in its entirety, it does constitute significant verbal and emotional abuse by the Father against the Mother.

The Mother also engaged in some abusive language, but it paled significantly in comparison to the abusive language used by the Father. [ 122 ] The Mother testified that the verbal and emotional abuse was not isolated to this occasion. She stated it continued thereafter and was cyclical. She indicated she had years of similarly abusive text messages where the Father would say “fuck off”, “cunt”, and “you’re weak and pathetic”. However, she did not introduce any of those text messages into evidence. [ 123 ] When the Mother was pregnant with G, the Father described the pregnancy as horrible for the Mother.

He described the Mother as being very cruel, she would smash dishes, tell him to “fuck off”, and engage in name-calling. The Father admitted he was not blameless at this time, and that they both engaged in name-calling. [ 124 ] When G was born, the parties continued to argue. This is confirmed in the CAST notes from February 2018.

After the parties’ separated, there was one further incident when during a transition of the child at a Starbuck’s, the Father admitted to calling the Mother a bitch. [ 125 ] On a balance of probabilities, I am satisfied that both parties engaged in verbal and emotional abuse, and that the parties’ continued to have oral disputes in front of G after he was born. [ 126 ] Parties agree that there was at least one incident of physical violence but disagree on whether further incidents occurred. [ 127 ] The Father’s testified that the only incident of physical violence occurred in Montreal at a hotel on New Year’s Eve in December 2016.

He says the parties were intoxicated, had been arguing about the Mother’s recent abortion, and that the Mother hit the Father with a remote control. In response, the Father admitted to slapping the Mother. At trial, he admitted that this was inappropriate, and he expressed regret for his behaviour. He said he slept the rest of the night in the car. [ 128 ] The Mother says there was more than one incident of physical abuse. She admitted that she had attacked him in Montreal by

hitting his hand, and in response, the Father slapped her face with the back of his hand. She further testified that in January 2018, the Father had choked and spat on her, and that he wanted to smash her face in. The Father denies this further incident. [ 129 ] To support her allegation of physical violence in 2018, the Mother relies on the CAST note from Ms. Borges from February 3, 2018 which was made after a home visit with the parties that day.

The note reads: “Along with [G] being born, [KF] and [JW] felt themselves distancing as their focus was on [G] and so they sought help from a couple therapist who reported them to CAS after one meeting.

In this initial meeting with the therapist, the parties felt she wanted to focus on the worst of their marriage, much of which is historical. [JW] acknowledges that 2 years ago in Montreal, [JW] and [KF] were inebriated on New Years, got into a disagreement, and [JW] did put his hands around [KF’s] throat and spit on her. [ JW] takes responsibility for this and has since been seeing a psychotherapist in Toronto, where he works on relationship issues….” [emphasis added] [ 130 ] The Father denies that this is what he acknowledged to Ms. Borges.

He denies ever putting his hands around the Mother’s throat, spitting on her, or ever threatening her. He states that when parties met with their therapist, he admitted to slapping the Mother, which was in response to the Mother hitting him with a remote control. This is the event that happened in Montreal. He states that this CAST note does not accurately reflect what he acknowledged, although the time period (i.e., New Years Eve 2016 in Montreal) is accurate. [ 131 ] I am not persuaded, on a balance of probabilities, that the Father attempted to choke, spit on or threaten the Mother.

I come to this finding for the following reasons. [ 132 ] The CAST note is not clear as to whether the statement references what the Father acknowledged to Ms. Borges or what he is alleged to have acknowledged to their therapist, Ms. Nobel. The reference in the preceding sentence to “the initial meeting with the therapist” makes it confusing as to whether the next sentence is in reference to what the Father acknowledged to Ms. Borges or to Ms. Nobel. Neither Ms. Borges nor Ms.

Nobel provided evidence at trial. [ 133 ] According to both parties’ testimony, the CAST note about this second incident of physical violence is not accurate. The Father admits that he did report to Ms. Nobel, when asked about the worst thing that had happened during their marriage, about the fight with the remote control and the slap in Montreal on New Years in 2016. Then Ms. Nobel met with the Mother privately. Thereafter, Ms. Nobel called CAST. [ 134 ] The Mother’s evidence is that the incident of choking and spitting was not in Montreal. She states it happened just before the parties went to see Ms.

Nobel in January 2018. She was complaining about breastfeeding and in response, the Father said he wanted to smash her face in. She said he then followed her into the hallway and proceeded to strangle her up against the wall. The next day, she arranged for the parties to meet with Ms. Nobel. The Mother acknowledged that the parties each met separately with Ms. Nobel, but that the Mother described this incident to Ms. Nobel when both parties were in the room. [ 135 ] The initial call from the Ms.

Nobel to CAST, as recorded in the CAST note, states that the incident of choking and spitting happened just four weeks prior to the parties’ meeting with Ms. Nobel, not two years prior on New Year’s Eve in 2016 as recorded in Ms. Borges’ notes, and not “just shortly before Sarah Nobel was called”, as alleged by the Mother. While the CAST note is more consistent with the Mother’s testimony at trial, it remains unclear whether this version of events is what the Mother had reported to Ms. Nobel and not what the Father acknowledged to Ms. Nobel or Ms.

Borges. [ 136 ] As both parties state that the content of the CAST note is inaccurate – the Father denies the choking and spitting and the Mother says the timeframe and location are inaccurate – I do not find this CAST note to be reliable. Without hearing from Ms. Borges or Ms. Nobel, it is not possible to rely on the CAST note as corroborating one party’s version of events. [ 137 ] There was a further incident reported by the Mother.

On January 28, 2019, the night when the Father called the police and the police arrested the Father, for uttering a death threat that night, the Mother stated that she was bruised on her arms because of the Father grabbing her arms firmly. She testified that he did not hit her that night. I am not persuaded there was physical violence that evening. The police did not lay assault charges relating to events on January 28, 2019. The Mother testified that she had forensic photos taken of her bruises on January 30, 2019, but she only adduced her own photos – and not Police forensic photos of the bruises.

No charges were laid. Even if the Father did hold the Mother’s arms firmly, it would appear to be a relatively minor incident of physical violence. It seems equally probable that the bruises related to her barricading herself in a room with G that night. The Mother testified that she did not even notice the bruises until the following morning. [ 138 ] For these reasons, I find that both parties had engaged in physical violence, but they were minor and isolated incidents.

Given the criminal trials that have occurred and the fact the parties are now separated, I am persuaded that future violence is unlikely to occur between the parties. Coercive Control [ 139 ] The Mother testified about a pattern of coercive control in the parties’ relationship. In Washington D.C., she said she wanted to spend time with her friends and workout, but the Father wanted her to spend more time with him, so she placated him. In Toronto, when G was born, she said she assumed primary care of the child and that the Father was not letting her take breaks.

Her only break was when she went to Washington D.C. for a long weekend to work. She said that the Father told her that until she got a full-time job, parenting was her full-time job. She said the Father would frequently stay out until 2 a.m. after drinking and smoking cannabis all night. If she woke him up, he would get mad at her. She said the Father had a “hair trigger” temper.

She would keep G in a baby carrier so that she could leave the home on a moment’s notice with the child to mitigate the child’s exposure to conflict. [ 140 ] There was insufficient evidence, in my view, to support a finding that the Father exerted a pattern of coercive control over the Mother. When the Father was cross-examined, he was taken to a text message on January 25, 2019 where the Mother asked the Father for a break because she was having an anxiety attack. He testified that he did respond to her text by coming home and allowing her to

take a break. He explained that he may have arrived 20 minutes late, but that he did provide her with a break that night and others. He also responded to the Mother’s claim that he engaged in conduct to isolate her. He explained that when G was very young, and because the Mother was breastfeeding, she needed to be around G more regularly. He denied attempting to limit her freedom. He explained that the parties had a parenting

schedule in place, and that it was often on the Mother’s parenting time that the Father would receive text messages asking him to relieve her. I note that the night of January 28, 2019, which led to the charges being laid, the Mother was out with friends while the Father was home caring for the child. At the time, the child was one and a half years old. The Mother testified that prior to separation, the Mother would return to the USA to work while the Father cared for the child. This is inconsistent with the Mother’s testimony that the Father prevented her from working.

Impact of Family Violence on the Child [ 141 ] The Mother and the Father both engaged in name-calling and arguments in the child’s presence prior to separation. Post- separation, the Mother also engaged in behaviours which support a finding that she negatively impacted the child’s views of his Father by what she has communicated to G. I turn to the issue of parental alienation next. [ 142 ] The Father also admitted to yelling and name-calling in front of the child prior to separation.

Post-separation, during a transition he admitted to calling the Mother a bitch in the child’s presence. [ 143 ] At trial, the Father acknowledged the inappropriateness of this behaviour. His counsellor, Ms. Colleen Kamps, testified about the work the Father has been doing with her in managing his emotions. Consistent with the Father’s testimony, she indicated that the Father expressed to her that he wishes no harm to the Mother, or a desire to exclude her from G’s life. Rather, his focus has been on managing his emotions, and to remain hopeful of having time with his son again.

She found him to be open and candid at their meetings. I am persuaded that to the extent the Father holds negative feelings towards the Mother, he recognizes that it is not in the child’s best interest to expose G to his anger or the parties’ conflict. I am not concerned the Father’s past inappropriate outbursts in front of G will reoccur.

Parental Alienation [ 144 ] The Father alleges parental alienation by the Mother. [ 145 ] Parental alienation has been described as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship.” Alfredo Ciarlariello v. Annina Iuele-Ciarlariello , 2014 ONSC 5097 at para. 3 . [ 146 ] The long-term harm of encouraging or allowing a child to reject a parent was stated succinctly by McGee J. in S. v.

A ., 2021 ONSC 6976 , at para. 30 : Whether passively permitted or actively encouraged, a child who rejects a parent is parallelly empowered to reject other important people in his life. He is taught to avoid difficult feelings instead of how to cope with them and to work through them.

He suffers an emotional impairment that deprives him not only of the love and protection of a parent, but of a wide array of complex social relationships . [ 147 ] The effect is to seriously undermine the parent-child relationship, with negative consequences for the child. [ 148 ] Parental alienation is a legal concept as opposed to a mental health diagnosis, which may be determined without expert evidence: A.M. v. C.H ., 2019 ONCA 764 at para. 35 ; O.M. v. S.K., 2020 ONSC 3816 . [ 149 ] The test often cited for parental alienation, set out by McKinnon J. in Fielding v.

Fielding , 2013 ONSC 5012, at paras 134-137 , is met when the following four criteria are present: a. There was a positive relationship with the targeted parent; b. There is an absence of abuse by the targeted parent; c. The alienating parent uses many of the alienating strategies; and d. The child exhibits most of the alienated child behaviours. [ 150 ] In this case, I am satisfied that G had a positive relationship with the Father. Based on the Father’s evidence, I am persuaded that he had a close, loving and affectionate relationship with G prior to August 2021, but since then, there has been no relationship.

He described his work experience with children in the past working at SickKids hospital and overseas. During his parenting time with G, he would engage in crafts, take him to the aquarium and Blue Jays game, and had registered him in soccer. The Father witnessed G, enjoying his time with him, and described G as a “very fun, happy, laughing little boy.” The time he spent with his son was not insignificant. He had extended periods with his son, including some periods lasting a week or more, with overnights. The last time the Father saw G, G ran to his Mother and then returned to give his Father another hug.

The Mother did not offer evidence to counter that a positive relationship existed. Therefore, the first prong of the test is met. [ 151 ] For reasons given, I am satisfied that the Father did not sexually abuse the child. I am satisfied that the child, when he was around one and a half years old, had witnessed verbal arguments between the parties. In addition, I am satisfied G witnessed at least one occasion when the Father engaged in name-calling of the Mother during a transition at Starbuck’s. However, the evidence from Ms.

Robertson is that the only reason G does not wish to see his Father at this time is because of the alleged inappropriate touching. I am satisfied nothing improper occurred. Therefore, the second prong of the test is met. [ 152 ] In terms of the third and fourth prong, there are a list of factors, based on expert evidence in other cases, which can assist the

court in determining whether alienating strategies or alienating behaviours exist: Fielding , supra at para 136 and 143; A.M. v. C.H ., 2018 ONSC 6472 at paras 108 – 109 . The list is lengthy and I will not repeat it all, except to identify whether such alienating strategies or behaviours have been found to exist in this case. [ 153 ] In terms of alienating strategies, I find that the Mother has engaged in the following alienating strategies: a. She has badmouthed the Father . She has told G that his Father should be in jail. This is what the child reported to DC Agostinho and Ms. Hoffelner. b.

The Mother created an impression that the Father was dangerous. She told him that he needed to go to jail. She encouraged the child to kick the Father in the face, rather than discuss with the Father that he disengage if the child says he no longer wished to play a game that involved touching. c. The Mother has limited contact between G and the Father. Immediately after the Father’s first arrest, she left for the USA with G for several weeks. She did not bring G to a scheduled transition location. The Father had to engage a lawyer to locate the Mother and have her return with G.

Thereafter, she made it difficult for the Father to exercise parenting time with G. Finally, on August 9, 2021, when she agreed to an equal parenting schedule, she failed to advise the Father or the Court of a CAST investigation that ultimately resulted in criminal charges and derailed the parenting plan to which the Mother had agreed. d. The Mother has sought to distort comments of the child to justify accusations. When the child attended his second interview with DC Agostinho on August 11, 2021, the child told DC Agostinho that “Mommy” told G to tell DC Agostinho about “penis”.

For reasons given, I am satisfied she influenced what the child reported. While I accept the Mother’s acknowledgement that she will never know whether there was abuse, her steadfast belief in what the child has reported was unreasonable after factoring in the child’s age, the inconsistencies in what he reported, the absence of corroborating evidence, and the child’s capacity to make up a story. e. Through her actions, the Mother has demonstrated she does not believe the child has any need for a relationship with the Father.

Following the Father’s second arrest, there was no effort on her part to try to resume a supervised parenting schedule, or even a telephone or video call between the child and his Father. She was aware of the impossible conditions imposed by CAST that would have prevented any sort of supervised parenting

schedule with the Father, yet she did not advocate or seek to implement even a telephone or video call with him and the child. Furthermore, after the Father was acquitted, rather than finding ways to permit a resumption of the parent-child relationship, she double- downed. She asked a Boost Worker and DC Agostinho to call CAST to report a concern for the child’s safety, although she had no information to suggest the Father would abscond with the child. In fact, the Father was out of the country in Asia for work when the decision acquitting the Father was released.

The effect, if not the intent, was to further delay a resumption of the parent-child relationship. She delayed Ms. Robertson commencing her work as a trauma assessor. Shore J., in her Endorsement on August 2, 2023, found that the Mother did not accept any of the first three dates offered for Ms. Robertson to commence her work with the child, notwithstanding a prior Order that she was to accept the first available date. And up until trial, she also sought to permanently relocate with the child to the USA, which would have had serious implications for the Father’s relationship with G.

These facts speak to the lack of importance the Mother placed in the child’s relationship with his Father, and her desire to delay the resumption of a parent-child relationship. [ 154 ] In terms of indicia of the child experiencing alienating behaviour, the best and most recent evidence from the child is from Ms. Robertson. The focus of her assessment was on the child’s trauma. It did not opine on whether alienation occurred or what would be the most appropriate parenting plan. However, her report does speak to the child’s attitudes towards his Father. Ms. Robertson reported the following: a.

Rejection of the Father. The child was avoidant when discussing anything related to his Father. His facial expression would change, his jaw looked tense, he clenched his teeth and would became dysregulated. The child said he does not want to see his dad “because what he did”, although the child stated that what happened with his Father was not scary or frightening. When asked what he likes about his dad, the child responded, “don’t like anything.” When asked if there was anything else he doesn’t like about his dad, the child responded, “that he touched me.” b. Child is ambivalent towards his dad.

When asked to name members of his family, he did not name his Father. However, later the child confirmed that “dad likes me because he’s my family”. The child said he thinks about his dad a little of the time, as compared to other things he thinks about (Star Wars most of the time, then dinosaurs, science and space). c. Child blames his dad. The child stated that he does not see his dad “because of what he done”. Later, he put a mark beside his dad’s name when asked who was to blame for what happened.

However, the child, at a different point of the assessment indicated that he thought “nothing” should happen to the person who touched him. [ 155 ] In my view, the test has been met for a finding of parental alienation. However, unlike other cases of parental alienation, where there is a pattern of intentional denigration by the alienating parent towa

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