Ontario Court of Justice
Between:
E.J.B. Applicant
— AND —
A.D.B. Respondent
Before: Justice Peter T. Bishop
Heard on: May 26 and May 27, 2015
Reasons for Judgment released on: July 13, 2015
Counsel:
- Michelle Simone, counsel for the respondent
- E.J.B., on his own behalf
Bishop J.:
BACKGROUND
1The applicant E.J.B. and the respondent A.D.B. are the mother and father of the child O.G.B. date of birth […], 2006. The father seeks custody of this child with supervised access to the mother.
2The mother A.D.B. initially sought support for herself and the child O.G.B. leave to relocate from Fort Frances to Red Lake with the child O.G.B. and specified access to the respondent for the child O.G.B.
TEMPORARY ORDERS
3On June 3, 2014 Justice Hoshizaki ordered as follows:
The child O.G.B., born […], 2006 habitual and primary residence will be with the Respondent, A.D.B.
The Applicant, E.J.B. shall obtain a mirror Order of this Order in the appropriate Minnesota Court and shall provide a copy of same to the Respondent, A.D.B. and file a copy with the Ontario Court of Justice, Fort Frances.
The Applicant, E.J.B. shall not remove the child, O.G.B., born […], 2006 from the Province of Ontario, Canada until the mirror order is obtained, filed at the Ontario Court of Justice, Fort Frances and a copy provided to the Respondent, A.D.B.
The Applicant, E.J.B. shall be allowed to exercise access visits to the child, O.G.B., born […], 2006 in the State of Minnesota once the mirror Order is obtained.
The Applicant, E.J.B. shall have access to the child, O.G.B., born […], 2006 according to the following access schedule:
- a) Every Wednesday evening from 5:00 p.m. (CST) to 7:15 p.m. (CST);
- b) Every Friday at 5:00 p.m. (CST) until Sunday at 7:00 p.m. (CST) and continuing every weekend until further Order of the Court. Otherwise the child, O.G.B., born on […], 2006 shall remain in the Respondent's, A.D.B. care.
The Birth Certificate of the child, O.G.B., born […], 2006 shall be returned to the Respondent, A.D.B. at the next access visit, June 4, 2014, at the beginning of the visit. The said Birth Certificate shall be returned to the non-custodial parent, E.J.B. for access visits once the mirror Order is obtained from a Minnesota Court.
All previous Orders are vacated, including: October 22, 2013, April 9, 2013 and February 12, 2013.
4On August 26, 2014 Justice Gibson made the following order:
The Applicant, E.J.B. pay $500 per month to the Respondent, A.D.B. for the support of the child, O.G.B., born […], 2006 retroactive to June 2014, based on an annual income of $56,000, until further notice of this court.
A Support Deduction Order shall issue.
Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.
Matter is otherwise adjourned to September 8, 2014 at 10:00 a.m. for continuation.
5On November 25, 2014 Justice Gibson made the following order:
The Applicant, E.J.B. is found to have demonstrated a settle intention to treat the children, V.T., born […] 1998 and P.T., born […]1995, as children of his family and to be a parent of the children within the meaning of section 1 of the Family Law Act.
A.D.B. provide up to date financial information from M.T., for the purpose of access any appropriate amount of child support pursuant to s.% of the Child Support Guidelines.
M.T., the biological father of P.T. and V.T. provide the court with copies of his tax returns for the years 2011, 2012, 2013.
Copies of the tax returns of M.T. are to be made available to the parties.
6On December 11, 2014 Justice Hoshizaki made the following order:
The Applicant E.J.B. shall have O.G.B., born […]2006 for the first week of school holidays from 5:00 p.m. December 19, 2014 until 5:00 p.m. on December 26, 2014.
The Respondent mother, A.D.B. shall have care on O.G.B. from 3:00 p.m. – 10:00 p.m. on December 24, 2014 (Christmas Eve).
The child, O.G.B., born […], 2006, shall spend the second week of school holidays from December 26, 2014 at 5:00 p.m. until January 2, 2015 at 5:00 p.m. with the mother, A.D.B. except for New Year's day (January 1, 2015) when O.G.B. will be with the father, E.J.B. from 12:00 p.m. until 7:00 p.m.
Regular access resumes on Friday, January 2, 2015 at 5:00 p.m.
E.J.B. and A.D.B. shall rotate O.G.B.' birthday on a yearly basis going forward.
7At the commencement of the trial, the parties narrowed the issues so that the remaining relief sought by the mother was custody of the child O.G.B., spousal support on a time limited bases until she finished school. The mother abandoned any claim for custody and support for the children of her previous marriage. The father seeks shared custody with a week on week off basis.
EVIDENCE OF E.J.B.
8Mr. E.J.B. is the father of the child O.G.B. and has tried to shield his daughter from the trauma of litigation.
9Since June 3, 2014 he has been exercising access on Wednesday evenings from 5:00 p.m. to 7:15 p.m. and each weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m.
10On occasion he would stop by at the child's school to check on her.
11The father lives in International Falls, Minnesota but works in Fort Frances, Ontario.
12He states that the child has told him that she wants equal time with him and calls him Papa.
13He admits that he has come up short as a parent and is concerned that he is not allowed to go to Illinois to visit his extended family.
14He doesn't believe the mother needs spousal support as he has never financially abused her.
15He stated that the mother worked from time to time when they were together and was self-sufficient.
16He was concerned when the mother left and moved to a woman's shelter in Atikokan.
17After separation, he ran into great financial difficulties and was forced to file for bankruptcy.
18The parties separated on February 8, 2013 and his life savings were depleted. After debts were paid there was $35.47 in the joint account.
19He made a commitment to buy another home in International Falls, Minnesota and changed residence from Fort Frances to International Falls.
20His daughter from a different relationship moved in with him for a period of time but no longer lives there.
21He works five days per week 8:00 a.m. to 5:00 p.m. He can no longer afford a lawyer as the financial institution foreclosed on the Fort Frances home.
22He stated that he cannot defend all of the things that he did so will not attempt to do so.
23He believes he is a good father and would do anything for the child and wants her to develop.
24He is currently employed at Jim McDonald Motors in Fort Frances and earns approximately $42,800.00 per year.
25His view is that there should be one week on and one week off custody.
EVIDENCE IN CROSS EXAMINATION
26He moved to International Falls, Minnesota in March, 2014.
27The parties had lived in Fort Frances for approximately six years after relocating from Red Lake.
28The exchange of the child takes place in a public forum at McDonald's restaurant in Fort Frances. He moved to International Falls, Minnesota in March, 2014 but maintained the Fort Frances residence until May, 2014.
29He did not initially pay child support.
30The mother receives medical and dental coverage on his plan.
31From June, 2014 to August, 2014 he paid the mother approximately $500.00 per month child support. The mother was staying at the family home and looked after all four children.
32There is strained communication with the mother.
33In July, 2014, his child from another relationship A.V., moved in with him as well as his ex-spouse H.V., and two other children. H.V. left in November, 2014 returning to Illinois and A.V. left in December, 2014.
34He confirms that communication between the mother and himself is minimal and is usually done through e-mail.
35He objected to the mother moving into a woman's shelter as that it is not the place for a child. He does not believe O.G.B. should need or receive counselling.
36He denied using the process of breaking a child's spirit to control them which is a military type of procedure where individuals are broken down then built back up. He employs time-out discipline.
37He denied requiring the child B.T. to eat his dinner on the floor by the dog's bowl and has never changed the locks and never locked B.T. in his room in the home.
38During his relationship, he was concerned that his step-child P.T. was receiving report cards showing low mathematic marks which was not up to her ability.
39He denied verbally abusing P.T. but did follow her to her room one time and took her by the arm and used a raised voice. He put the TV in the hall as a disciplinary measure.
40He is not able to comment on the psychological report relating to the child V.T.
41From time to time he would transport the child O.G.B. in his pick-up truck and had no car seat for her. As well, he would transport children in the bed of the pick-up truck and was stopped by the International Falls police and was cautioned about a safety concern. The police were concerned that one child was sitting on the wheel well of the pick-up truck.
42He denies having secret conversations with the child O.G.B.
43He had not called O.G.B. since the psychological report on V.T. but he attends her school to talk to her teachers about progress.
44After visitation with O.G.B. she told him that she wants fifty-fifty contact. He has no knowledge about the child telling her mother that she should get a job and that he did not know the mother's telephone number.
EVIDENCE OF BRADIS MARIE OLIVER
45Ms. Oliver is a friend of the father and has two children of her own. She is not in any relationship with Mr. E.J.B.
46She has known O.G.B. for approximately four years as her daughter is in the same class. Her son also attended kindergarten with O.G.B.
47In April, 2015 they would meet at the park and her children would play with O.G.B.
48She observed no evidence that O.G.B. was in danger and the relationship with her dad was close.
49On occasion Mr. E.J.B. has left O.G.B. in her care overnight and that Mr. E.J.B. usually talks through discipline with O.G.B.
50She has no concern about Mr. E.J.B.' parenting abilities.
51Her children want to see O.G.B. and like her.
EVIDENCE OF MARGARET ELIZABETH LOYIE
52Ms. Loyie is a Program Manager with Victim Services in the Rainy River District.
53She has a Bachelor of Social Work Degree from Carleton University and has assisted A.D.B. and O.G.B. and V.T.
54She has also spoken to P.T. on the telephone.
55In January, 2012 she personally met with A.D.B. who has returned for visits with her a few times. At the first meeting A.D.B. was very withdrawn, nervous and shaking.
56Much of their discussion has been around domestic violence and assaultive issues.
57With respect to domestic violence, Ms. A.D.B. concedes that her daughter V.T. did not feel right in the home. There was no physical violence but on a power control wheel she identified all of the issues of violence on that diagram.
58Ms. Loyie made a referral to counselling at the Riverside Community Counselling Services.
59In February, 2013, Ms. A.D.B. wanted to return with her family to Red Lake and Ms. Loyie assisted in arranging for a U-Haul to get her belongings there. She encouraged the mother to go to a shelter and made contacts with respect to achieving appropriate housing.
60After a short stay in Red Lake Ms. A.D.B. returned to Fort Frances.
61In April 27, 2013 there was an exchange of the child at McDonald's restaurant in Fort Frances.
62There was one occasion where the father followed the mother in her car with the child O.G.B. when she was returning to the shelter in Atikokan and she observed Mr. E.J.B. run a red light to keep in close proximity to the mother's car.
63She presented evidence that the mother had completed a course with respect to the child witness program and said that Mr. E.J.B. was very manipulative and engaged in crazy thinking, which is defined as setting up a situation which makes you think that you were not functioning properly.
64There was a meeting with Ms. A.D.B. on October, 2014 with concerned community support providers including the Ontario Provincial Police. Discussions were focused about the child O.G.B. and a recent assessment on V.T. and the visitation that the father was having in International Falls, Minnesota.
65Her job was to be respectful and listen and make the appropriate referrals.
EVIDENCE OF JACKLYN LOERZEL
66Ms. Loerzel works at the Riverside Community Counselling Services and has been a family violence counsellor since January, 2011.
67She first met the mother in September, 2012. She identified and produced a series of visits with the mother the first being from September 12, 2012 to March 28, 2013. The second being from September 4, 2013 to December 30, 2013 and the last being September 26, 2014 to October 2, 2014. These notes were documented and filed as business records.
68The thrust of Ms. Loerzel's evidence was the couples counselling was not appropriate because abuse had been reported. The mother did not feel safe in the presence of the perpetrator and part of their role was to prevent retaliation. Another theme was that by participating in Sisters Building Strength, a women's group, the mother would build up confidence, not experience shame, and not allow herself to be torn down.
69The community meeting on October 28, 2014 was a collaborative approach to have professionals in the community address the concerns that Ms. A.D.B. had in her marriage and her relationship with Mr. E.J.B. and the children.
EVIDENCE IN CROSS EXAMINATION
70At the first meeting in September, 2012, the mother disclosed the possibility of maltreatment. There were different types of abuse and not just physical abuse and that was not recognized by the mother. She confirmed that she had not met the child O.G.B. but there was a fear for her safety and this was checked off on a list on the intake form. The mother thought there was no need for a safety plan and confirmed that her previous relationship had been a violent one. Her conclusion was that these services were there for support.
EVIDENCE OF GABRIEL CARPENTER
71Mr. Carpenter is the Child Protection Supervisor for Kenora Rainy River District Child and Family Services in Fort Frances.
72He met with the mother in January, 2015 over the issues of domestic violence.
73Mr. Carpenter explained there are different criteria to commence a Child Protection application in Minnesota as that legislation required observable criteria, which was not the case in Ontario. If Mr. E.J.B. lived in Ontario he would have commenced a Child Protection application.
74There were concerns raised by the mother about the child visiting the father because O.G.B. was acting out verbally and psychologically. O.G.B. was preoccupied with hypnosis and wondered whether cats could be hypnotized. There are also concerns about behavioural problems with Mr. E.J.B. trying to break a child's spirit and how to handle this.
75There were concerns that the child V.T. was experiencing post-traumatic stress and there was a potential for the child O.G.B. to experience the same which would not be followed up on because of the father's residency was in Minnesota. Minnesota required observable abusive criteria where as in Ontario it was not just actual but potential emotional abuse.
76The file was open for approximately one year and closed on March 25, 2014 due to the jurisdictional conundrum.
EVIDENCE OF B.T.
77Mr. M.T. is twenty-two years of age and the birth child of A.D.B. and the step-son of E.J.B.
78He would call his step-father by his first name E.J.B. He was eleven or twelve years of age when his mother married Mr. E.J.B. He stated he was kicked out of the home when he was around fifteen years old and was told he had to leave. He had difficulties at school, was suspended and was evicted from the home in 2007 and never really moved back in. He stayed with friends, slept on park benches and there was no discussion about going home.
79He stated Mr. E.J.B. was the disciplinarian and that he would have to check in every hour with an early curfew. His room was searched and was required to sit at the kitchen table and consequences for misbehaviour would be no TV, be grounded.
80When he was first charged with possession of marijuana he was locked in his room for two weeks. Other family members would bring him food, as E.J.B. was in charge.
81While confined to his room he had no electricity and the TV was removed and it was an attempt to break his spirit. He heard this through the mouth of Mr. E.J.B. This plan was to stop him from getting into trouble.
82He never experienced being hit but he was grabbed by the hand and was squeezed so he would listen, he squeezed his pinky and brought him to the ground so he would listen. If he stayed out past his curfew he would be grounded.
83He never drank alcohol in the home.
EVIDENCE IN CROSS EXAMINATION
84He left school and did not finish high school. In November, 2014 he moved in with grandparents and obtained four credits at school. Presently he is employed as a part-time roofer and is seeking part-time jobs.
EVIDENCE OF P.T.
85She is nineteen years of age, the daughter of the mother and the step-child of the father and is attending Confederation College.
86She wrote an essay for school which was filed with the court and led the court through that letter as to what happened while living in the B. home.
87She received a low mark on a math exam being 64% and handed it to her step-father. Mr. E.J.B. was abusive and told her that this was unacceptable and it wasn't good enough for him. He stated he would make her re-do all of her grade nine and/or grade nine math.
88He grabbed her wrist and squeezed her hand and it hurt. At that time, she wanted her real dad and she was pulled to the room and shoved into the room and the TV was ripped from the wall and tossed into the hall. She was crying under a blanket. This was precipitated by her swearing at Mr. E.J.B.
89If she was not home by the 11:00 p.m. curfew, the doors were locked.
90There was a great deal of yelling for everything by Mr. E.J.B. and he would ignore the short answers. She was required to sit down and listen for an hour and her friends were not invited to their home because she was greatly embarrassed by Mr. E.J.B.' behaviour.
91After the separation she had one visit with Mr. E.J.B. and one or two phone conversations. Mr. E.J.B. said that her mother had mental problems and was bipolar and that she was probably bipolar as well.
92In April, 2015 she was told by a physician that she had cancer but was waiting for the final diagnosis.
93She experienced nightmares and panic attacks and spent time with her step-sister O.G.B. but saw her as her sister. Over the whole episode she has had a good relationship with O.G.B.
EVIDENCE IN CROSS EXAMINATION
94She was concerned that O.G.B. would suffer the same harm that she suffered from Mr. E.J.B.
95She observed O.G.B. raise her fist at her Mom immediately after talking to her father. Her observation was that Mr. E.J.B. showed poor examples of parenting and it went in cycles with long lectures.
96She stated that Mr. E.J.B. either ignored the children or yelled at them and she really didn't know what his expectations were.
97She has dropped out of Dental Hygiene course and the General Science course at college.
98In re-examination she said that she was unable to concentrate at community college and dropped out. She was going through a break up with her boyfriend and she was not sure that she was the same person. She was concerned about V.T. as well as the court proceedings.
EVIDENCE OF SHERRI ANN CAPULAK-TINNES
99Ms. Capulak-Tinnes is a psychological associate with a Master's Degree in Psychology. She is a clinical investigator at the Thunder Bay Regional Hospital. Ms. Capulak-Tinnes was qualified as a participant expert as she formed her opinions prior to litigation and was not retained by either party involved in the litigation. The court followed Westerhoff v. Gee Estate, 2015 ONCA 206, and Ms. Capulak-Tinnes was allowed to give opinion evidence with respect to the diagnosis for V.T.
100V.T. was admitted to the Child Adolescent Mental Health Program in September, 2014. She met directly with V.T. on September 23, 2014 as she appeared to disassociate and attributed this to growing up in the home experiencing emotional and verbal abuse at the hands of Mr. E.J.B.
101She was exposed to actual or perceived threats of harm and witnessed actual or serious harm on her siblings with repeated exposure to this type of stimuli.
102V.T. found it difficult to sleep and certain triggers would result in nightmares. She experienced panic attacks and was fearful of Mr. E.J.B.
103With respect to psychological tests the sound of his voice or phone call would trigger these episodes.
104Ms. Capulak-Tinnes was required under the legislation to report this abuse to the Children's Aid Society. There were fears that the child O.G.B. may be subject to this same phenomenon but she had no knowledge of O.G.B. being hurt.
105She received disclosures that O.G.B. had angry outbursts at her mother.
106Halfway through the treatment for V.T. Mr. Capulak-Tinnes spoke to the mother by phone with a view to planning treatment and discharge and plan of safety.
107The concern was exposure of this child to Mr. E.J.B. and also the effect on O.G.B. Sometimes the mother was fearful.
108The voice of Mr. E.J.B. would occasionally initiate a flashback and this witness saw that happen on one occasion.
109She never met with Mr. E.J.B. or the child O.G.B. but she was concerned about the children and the whole family and the decision for the mother to leave based on treatment. In fact she would opine that the other children would witness abuse and be affected.
110Different children have different coping abilities.
111The child V.T. was a step-child of Mr. E.J.B. and was exposed longer to this behaviour, which explains the worry on V.T.'s part for O.G.B.
112Mr. E.J.B. would threaten regularly in veiled language.
EVIDENCE IN CROSS EXAMINATION
113V.T. did not talk much about her mother but there was suicide ideation and an actual attempt. To avoid the pain, she would often put on a happy face.
114The child V.T. had changing emotions and the view of her world was that it was unsafe.
115Post-traumatic stress disorder can be not just one significant event but rather cumulative events over a period of time. The child would attribute the father's white truck to a traumatic event in the relationship.
116The child met five criteria for a mental disorder and that she told the assessor that Mr. E.J.B. called her "a little bag of shit".
117Some of the memories were blocked as a coping mechanism but V.T. thought the father was brainwashing O.G.B. about her mother.
118This child observed Mr. E.J.B. pulling P.T.'s hair. V.T. has had a major depressive episode where she cuts herself when it reminds her of Mr. E.J.B.
119V.T.'s relationship with her birth father was not strong and there is a sense of abandonment.
EVIDENCE OF A.D.B.
120Ms. A.D.B. had been a stay at home mom and worked approximately two months outside the home during the relationship.
121The father E.J.B. was the bread winner.
122In 2012 she had declared income of $7,600.00 which derived from cashing in gold shares from her marriage to her first husband.
123She is attending Confederation College enrolling in September, 2014 and has two more years to complete either in Nursing or the Health Sciences field.
124She receives $500.00 in child support from E.J.B. for O.G.B. and $400.00 each in child support from her former husband for V.T. and P.T. P.T. is attending school and that money goes through her account then directly to P.T.
125She is housed in rent geared to income housing and has been there since August, 2013 and pays $178.00 per month for rent.
126She has obtained an Ontario Student Assisted Program loan to continue her education.
127The children P.T., V.T. and O.G.B. live with her.
128She described the debts that she presently has and how they are being paid.
129She lived in a woman's shelter in Atikokan from April 2 to August 16, 2013 then moved to her current residence in Fort Frances.
130She has filed software calculations with respect to her needs for ongoing spousal support based on Mr. E.J.B. income which would result in $650.00 to $980.00 per month. She is seeking limited time spousal support until her education is completed.
131She described the situation with Mr. E.J.B. as always walking on egg shells because she didn't know what mood he was going to be in. On a bad day he would yell, slam the door and be miserable.
132The child O.G.B. is the family's number one cheerleader, always smiling, always giving hugs and she described the child's daily routine.
133Her children P.T. and V.T. are very close with O.G.B. and she has been the primary caregiver for the child since separation.
134She related an experience in 2013 when O.G.B. was bitten by a dog and the father refused to provide the insurance card to get treatment.
135Sometimes Mr. E.J.B. would show up at the school and the child would be disruptive after that. Mr. E.J.B.' attendance at the school was reported to the mother by the teacher.
136She always keeps Mr. E.J.B. updated with the child's progress at school and she tries to protect her from his outbursts.
137With respect to access, the exchange has been in a public place at the McDonald's restaurant in Fort Frances. The police attended on the first few occasions and some of the exchanges have been scary with terse conversation.
138There was an issue with the mirror order of June 3, 2014. Mr. E.J.B. became upset and would not return the birth certificate initially but eventually did comply with that request.
139She did not wish Mr. E.J.B. to attend her home as she was fearful of him but that did occur on one occasion.
140Mr. E.J.B. missed one visit since the interim order of June 3, 2014 because he was in Illinois.
141After the April 24, 2015 visit with the father, O.G.B. told her that she should be working by now.
142She remains concerned that O.G.B. is in the sole control of the father every weekend and weekends are special to both parents. She has obeyed the court order but does not agree with it.
143Over the relationship Mr. E.J.B. has been harsh with the other children and is very short tempered.
144He has physically hurt two of the children and threw one of them on the bed.
145With respect to communication she does not talk on the phone with Mr. E.J.B. and they do not talk face to face. The usual form of communication is e-mail.
146With respect to discipline she usually talks to O.G.B. but on one occasion a few months after separation O.G.B. stomped up to her room and told her that it was all her fault for this situation and punched her mother in stomach. O.G.B. is often upset with her after the return from visits with the father.
147She described the father's attitude and procedure of breaking the spirit of children as that was done in the military. He was going to break B.T.'s spirit when they were living in Red Lake and she couldn't handle B.T.'s behaviour. She regrets not doing anything and was particularly distraught when the father yelled at B.T. told him to sit on the floor beside the dogs dishes and eat his meal from that position. She was crying when B.T. gave his evidence and felt that she could not correct this because she wanted to be loyal to her husband and keep the family together not go through another separation or divorce.
148With respect to the child V.T., this child kept all of her angst inside and did not tell about the problems that she was having which manifested in a suicide attempt and the diagnosis of post-traumatic stress disorder.
149Mr. E.J.B. told her that they would have to break O.G.B.'s spirit and she adamantly said "no you will not do that".
150With respect to the child P.T. she was there when Mr. E.J.B. was physically disciplining and could not do anything. She felt frozen, her body would not move. She did not protect P.T. from the physical grabbing of the wrist and going to the bedroom. She did not approve of P.T. swearing at Mr. E.J.B. but she went into the room and hugged her and told her it would be okay and then left the room.
151He told her that breaking the kids' spirits would not work if he and she were not on the same page. If she stuck up for the children, he would leave the family and did leave about ten or twelve times for short periods which she surmised was an effort to control her. For that reason, upon separation she took all of the children with her to Red Lake.
152Since separation she has continued to work with Victim Services and has received their support when she briefly moved to Red Lake and thereafter.
153She has connections to Red Lake as she resided there since she was sixteen years old and put the children there to escape Mr. E.J.B. and only stayed for ten days until a judge ordered that they be returned.
154There is no way that she was going to simply send the children back to Fort Frances and moved all of them back herself. Mr. E.J.B. was only concerned about O.G.B.
155She attempted to have O.G.B. attend counselling but Mr. E.J.B. would not consent. After the joint meeting October 2, 2014 she felt validated about what happened in the home.
156She related an incident where the child O.G.B. who was four years old was told by her father that in the Bible that sin was caused by women. He took the child to a grocery store and pointed to tampons and said that was evil. At that point O.G.B. told her mom she didn't want to be girl again but she counselled her and told her to feel free to be what you are.
EVIDENCE IN CROSS EXAMINATION
157Mr. E.J.B. feels that it was her problem that he had to file for bankruptcy and that she should not have gone to school but should be out working. The father led the mother through the employment that she had over the relationship and she was particularly concerned that O.G.B. was molested by a seven year old boy and the father would not consent to the child having any counselling.
158Ms. A.D.B. tried to have better access but each time was met with issues with the father wanting to change things. For example he offered to let the mother have the odd weekend if she would agree to a week on and a week off schedule.
159During the relationship they never lived big but they weren't starving and she was in charge of finances to pay the bills.
160She confirmed that the dog on the floor incident in Red Lake was shortly before B.T. was kicked out of the home. She wanted to be a team player in the family and wanted to try to make the family unit work.
161The child V.T. started to cut herself in the home when the mother and the father were living together. She was very good at hiding her distress.
162She confirmed that she went to counselling after she saw her son B.T. arrested on the beach for drug use.
DECISION
163Having heard all of the evidence, reviewing the exhibits and written submissions, I am finding it is in the best interests of O.G.B. that the mother have sole custody of her for the following reasons:
(a) The mother has a good parenting plan, upgrading her education and being present and available for the child. She is in-tune with the child's needs and is providing a stable safe home environment.
(b) The mother has been responsible for making decisions including education, medical and dental appointments.
(c) She has consistently given the school reports to Mr. E.J.B. and allows the child to "decompress" after a visit with her father.
(d) The child O.G.B. has a good and close relationship with her step-sisters V.T. and P.T. and that should continue within the family constellation.
(e) The mother has been the primary caregiver for O.G.B. before and after separation.
(f) The father has been abusive to the mother, the step-children and O.G.B.: examples of abuse with respect to O.G.B. are as follows:
Inferentially, coaching the child to tell her mother that she should be working and that the custody should be fifty/fifty one week on and one week off.
Physically and verbally abusing the T. children in the presence of O.G.B.
Attending at the school to avoid waiting for the weekend visits and coaching the child to confront her mother about custody access and working.
Following the mother's car to the exchange at McDonald's and running a red light to stay in close pursuit.
Not returning the child's birth certificate immediately after the mirror order being granted on June 3, 2014.
Inferentially, coaching the child that the family situation was the mother's fault which resulted in the child punching the mother.
Attempting to employ breaking the spirit on O.G.B.
Refusing to sign the consent for counselling after O.G.B. was molested by a young boy.
Telling the child that sin was caused by women and that tampons were evil.
Failing to provide particulars of dental coverage for O.G.B. in a timely manner.
(g) Examples of abuse with respect to the mother are as follows:
Belittling her by telling her that she had never accomplished anything.
Telling her that she should be out working and not upgrading her education standards to get a better job.
Using the "breaking the spirit" technique on the step-children in the presence of the mother who was frozen and unable to resist and greatly regrets that behaviour and her inability to act.
Blaming the mother for his bankruptcy and financial difficulties.
Sending an email advising that he and the child O.G.B. had relocated in International Falls, Minnesota without advising the mother, the inference being that he had custody of the child whereas the reality was that he was exercising access at his residence in International Falls pursuant to the temporary orders.
(h) Examples of abuse with respect to B.T., P.T. and V.T. are as follows:
Using or attempting to use the technique of breaking the children's spirits.
Requiring Brandon to eat his dinner on the floor by the dog dishes.
Setting unrealistic curfews.
Having unrealistic expectations with respect to academic achievements for the children.
Locking B.T. in the room without electricity or other amenities because of marijuana use and other behavioural problems.
Using physical violence on P.T. by grabbing her wrist and squeezing her hand until it hurt.
Ripping the TV from the wall and tossing it into the hall, locking the door when she wasn't in by the 11:00 p.m. curfew.
Telling P.T. that her mother had mental problems and the mother was bipolar and she was probably bipolar as well.
Contributing significantly to causation of post-traumatic stress disorder with respect to V.T. which resulted in her suicide attempt.
Disclosing to Ms. Capulak-Tinnes that Mr. E.J.B. had called her "a little bag of shit".
Witnessing angry outbursts by O.G.B. on her mother with verbal threats in veiled language.
164Where there is a difference between Mr. E.J.B. evidence and that of B.T. and P.T., and A.D.B., I accept their evidence supported by and corroborated by evidence of the mother's other witnesses. I reject Mr. E.J.B.' version of what happened during the relationship.
165The father has no comprehension of his role as a parent has used inappropriate discipline and theories to control the entire family situation. This issue of breaking a child's spirit is totally inappropriate and almost criminal.
166The mother has been reasonable in her desire to protect all of the children from Mr. E.J.B.
167Mr. E.J.B. was aggressive when cross examining Ms. A.D.B. and some of the other witnesses. There was fire in his eyes and venom in his voice. He attempted to belittle Ms. A.D.B. for upgrading her education and didn't understand why she wanted to do that as she should be out working. He simply does not get it.
168It is unfortunate that the situation has gone on so long and that the father has had access every weekend. Weekends are important to both parents and at trial the father acknowledged that it was not beneficial to the child to be excluded from interaction with the mother each weekend. The courts making the temporary orders did not have the benefit of all of the evidence that I have had before me. The mother described that she did not bring the matter back to court after the temporary orders as she wanted to have a final resolution since the granting of the order of June 3, 2014.
169Mr. E.J.B. moved to International Falls from Fort Frances, Ontario which removed the ability of the Children's Aid Society to commence a protection application. It may be that Mr. E.J.B. calculated that move but that is unclear. He took on financial obligations of a rent-to-own home knowing that this litigation was in progress. He attempted to reconcile with his former spouse and child and that failed.
170There is a concern on the mother's part that Mr. E.J.B., being an American citizen, will simply take the child to Illinois or some part of the United States and disappear. This is a valid concern although it has not happened because of the safe guards put in place by the courts as reflected in the terms of the temporary orders.
171I am of the view that the father has been so abusive for so long that there will be a denial of access for a short period of time to give O.G.B. a chance to stabilize. In that regard, access to the father will be as follows:
No access for 45 days from today's date forward.
Access shall recommence Friday, August 28 at 5:00 p.m. to Sunday, August 30 at 4:00 p.m. in Fort Frances or International Falls.
Every second weekend thereafter commencing September 11, 2015 from 5:00 p.m. to September 13 at 4:00 p.m.
The exchange shall take place at the McDonald's restaurant in Fort Frances.
The child shall not be removed from International Falls on access visits without leave of the court.
Wednesday access shall be resumed on September 2 at 5:00 p.m. to 7:00 p.m. and then thereafter every second Wednesday in Fort Frances or International Falls.
The father shall have Christmas access as follows:
- (i) Commencing December 26, 2015 at 1:00 p.m. until December 31, 2015 at 4:00 p.m. in International Falls or Fort Frances.
- (ii) In December of 2016 from the end of the school year to December 25 at 1:00 p.m. and alternating each year thereafter.
- (iii) Two continuous weeks in the summer commencing in 2016 to be exercised in Fort Frances or International Falls with the father giving ninety days' notice of his holiday schedule.
- (iv) Alternate Easters and school March breaks and Canadian statutory holidays commencing in 2016.
The father shall not attend the child's school nor contact the child's teacher without leave of the court.
The father shall have no contact with B.T., P.T. or V.T. unless they give their initial and ongoing consent.
The respondent shall pay the mother child support for O.G.B. in the amount of $442.00 per month commencing August 1, 2015 and payable on the first day of each month thereafter. The table amount for one child is $442.00.
The mother has demonstrated a need for spousal support and the father has the ability to pay spousal support. The father shall pay the mother spousal support in the amount $500.00 per month commencing August 1, 2015 and payable the first day each month thereafter until August 1, 2017 or for as long as she is no longer enrolled in a full time educational program.
The mother shall be allowed to enroll the child O.G.B. in counselling for emotional abuse and sexual abuse immediately without the consent of the father.
All support payments are directed to the Director of Family Responsibility Office. For as long as child support is paid, the payor (and recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
Unless this order is withdrawn from the Director's Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post-judgment interest at the rate of 1.0% per year effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
The father shall obtain a mirror order of this order in the appropriate Minnesota court and shall provide a certified copy of that order to the mother who shall file it with the Ontario Court of Justice, Fort Frances, Ontario.
172If costs are an issue I may be spoken to.
Released: July 13, 2015
Signed: "Justice Bishop"