M.R. v. A.R., 2023 ONCJ 214

ONTARIO COURT OF JUSTICE

Date: March 20, 2023 Court File No.: D40480/20

BETWEEN:

M.R.

Applicant

— AND —

A.R.

Respondent

Before: Justice Melanie Sager

Heard on: February 27, March 2, 3, 6, 7, and 8, 2023 Reasons for Judgment released on: March 20, 2023

Counsel: Ayesha Hussain, for the applicant A.R., on his own behalf

SAGER J.:

Introduction

1A trial was held in this matter over six days to address parenting issues regarding the parties’ 9 year old daughter (the child).

2The Applicant (mother) asks the court to order the child’s primary residence be with her and that she have sole decision making responsibility for the child. She also seeks orders permitting her to obtain government issued identification for the child and to travel with the child outside of Canada without the father’s written consent. With respect to the Respondent’s (father) parenting time, she requests an order that he be restricted to supervised parenting time only after engaging in a therapeutic reintroduction process overseen by an appropriate professional with the expertise to provide reintegration therapy.

3The mother also seeks orders requiring the father to complete a parenting program prior to commencing parenting time, the parties to communicate through a parenting App, that the child shall not be exposed to any conflict, and an order prohibiting the father from having any direct or indirect contact with her other than through the parenting app and from coming within 500 meters of her.

4The father asks the court to order the child’s primary residence be with him and that he have sole decision making responsibility. He seeks an order for child support from the mother, an order that the mother be restricted to supervised parenting time until she completes “psychiatric therapy” and “parenting counselling”. He requests an order that only following successful psychiatric and parenting counselling, and provided the supervised parenting time is successful, can the mother apply for unsupervised parenting time. The father also seeks an order prohibiting contact between the child and some maternal relatives/family friends.

5Prior to trial, the parties resolved the issue of child support on a final basis pursuant to the order of Justice Paulseth granted dated April 26, 2022.

6This matter was referred to trial by Justice Debra Paulseth on March 14, 2022 to proceed in the July 18-25, 2022 trial sittings. A focused trial plan was crafted which included orders that evidence in chief be by way of affidavit. Cross examination of the parties was limited to three hours while each additional witness was limited to 30 minutes of cross examination. Each party was permitted to call four witnesses. The trial was estimated to be four days. When the case was first referred to trial both parties had counsel. At trial the father was unrepresented.

7In advance of trial, the parties both filed voluminous affidavits and document briefs. The mother served and filed an Affidavit for trial that references four other affidavits filed with the court at previous stages in the litigation upon which she is relying. The father served and filed a 125 page affidavit with over 100 exhibits and three large binders of documents not referred to in his affidavit which he referred to as ‘Evidence/Document/Disclosure for trial’. The binders contained hundreds of pages including the entire file of the Children’s Aid Society of Toronto (the society), several inches of police records, years of the mother’s medical records, pictures, emails, text messages and WhatsApp records.

8On the first day of trial the parties were advised that their evidence was disproportionate to the issues and that their affidavits would have to be amended. The father was told that his affidavit had to be shortened and the mother was advised that she had to consolidate her evidence into one affidavit containing all of the evidence she wished to rely upon from previous affidavits as opposed to simply stating that her evidence includes four previously sworn affidavits which were more than two years old and were prepared in support of motions for temporary orders.

9The court was mindful of its obligation to provide reasonable assistance to a self-represented litigant [1] and spent two hours explaining why their evidence in chief must be marshalled more efficiently and for the father, how to do that.

10The parties were advised that they would have to serve and file their amended trial affidavits by 4:30 p.m. on March 1, 2023 and the trial would continue on March 2, 2023. The parties were consulted and agreed to the length of their affidavits and the number of pages of exhibits that could be attached. Prior to adjourning for the day, the court heard from the clinical investigator from the Office of the Children’s Lawyer (OCL) whose evidence will be referenced below.

11In addition to the parties, the court heard evidence from the clinician from the OCL, the mother’s sister, a family friend with whom the mother lived after separation, a therapist engaged by the mother to provide counselling to the child, the paternal grandmother, a friend of the parties whose family lived in the same building, and a worker from the society. The mother’s sister and the society worker gave evidence by video. Everyone else appeared in person.

12The trial proceeded over six days. The cross examination of the parents, specifically of the mother, took much longer than the three hours permitted by the Case Management Judge.

13While the father requested an order for child support in his Answer and Claim and in his opening statement, no evidence was called on this issue. As the parties consented to a final order requiring the father to pay the mother child support, the issue of child support was not referred to trial by the Case Management Judge and is not referenced at all in the trial plan. The father was advised at the end of the trial that it could not adjudicate his claim for child support at this trial.

14The only issue for the court to determine is what parenting orders are in the child’s best interests?

Background of the Parties

15The parties were both born in India and entered into an arranged marriage in 2007. The parties’ only child was born on […] , 2013. Neither party has any other children.

16During the marriage the parties lived together at various times in India, the United States, Regina and Toronto.

17Both parents obtained post-secondary educations in India. The father is a Technical Systems Analyst and works for a major Canadian financial institution. The mother obtained both a Bachelor’s and a Master’s in computer science and took a computer course at Humber College. She too works for a major Canadian financial institution in the Information and Technology department.

18The parties’ evidence differs on the level of the father’s involvement in the child’s life during the marriage but the mother does not deny that the father was an active parent who interacted with school officials, doctors and the child’s tutor at Kumon. As will be addressed in detail below, whether the father was an equal caregiver to the child during the marriage or was not equal but actively involved does not impact the decision on what is in her best interests today.

19The parties separated on June 2, 2020 when the mother was charged with assaulting the father and as a term of her release, not permitted to return to the home they shared with the child who remained in the father’s care.

20Following her arrest, the mother reported to the police physical abuse of her by the father who was subsequently charged with three counts of assault.

21All criminal charges against both parties were dropped.

Background of the Litigation

22The mother issued her Application with the court on July 10, 2020. It was amended on August 18, 2020. The father’s Answer and Claim is dated September 24, 2020.

23On July 10, 2020, the mother brought an urgent motion without notice to the father. Justice Sherr made a temporary without prejudice order requiring the police to locate, apprehend and deliver the child to the mother and for the father to have no contact with the mother or the child pending return of the motion. The temporary motion was argued on July 20, 2020 before Justice Robert Spence.

[24] On July 21, 2020, Justice Spence released written reasons and made the following temporary orders: (a) The mother was granted temporary custody of the child. [2] (b) The father was ordered to provide the mother with the child’s government related documents and the mother was granted the authority to apply for any additional government issued documents for the child without the father’s consent. (c) The father was ordered to have supervised access to the child by a third party such as Brayden Supervision Services (Brayden), the society or Access for Parents and Children Ontario. (d) The parties were ordered to refrain from discussing any aspect of the litigation or criminal charges or adult issues in general with the child or allow any other person to do so. (e) The father was prohibited from having contact with the mother or the child except as provided by court order. (f) The father was prohibited from removing the child from the Province of Ontario. (g) All police or law enforcement agencies with jurisdiction to do so, were ordered to enforce the terms of the order.

25On September 17, 2020, Justice Spence ordered the father to have weekly access to the child supervised by the society and for the society to release its notes to the parties after the completion of six supervised visits.

26On November 19, 2020, after the child attended five supervised visits and refused any further contact with her father, Justice Spence made an order requesting the OCL to investigate and report to the court.

27The mother failed to deliver an intake form to the OCL and the request for involvement was denied.

28After a second order for the appointment of the OCL was made on November 19, 2020, the court was advised on February 8, 2021, that the OCL report would be issued shortly but that the investigation could not be completed due to the child’s unwillingness to participate in an observation visit with her father.

29On May 31, 2021, Justice Spence heard motions brought by both parents and endorsed “The order which I make is directed toward the establishment of a meaningful relationship between [the child] and her father.” Justice Spence ordered the father to have “therapeutic/reintegration parenting time” facilitated by Brayden’s “Nurturing Parent Program” once per week for four weeks for two hours per visit increasing to twice weekly if the visits “progress reasonably well and the child does not display signs of excessive anxiety”. The mother was ordered to take all reasonable steps to encourage the child to participate in the supervised access. The matter was to return to court after 12 supervised visits.

30The matter was adjourned at the parties’ requests several times between May 31, 2021 and December 16, 2021 to allow the child and the father to complete the Nurturing Parent Program which had not been completed due to the delay in starting the program, the child’s resistance to attend visits and the father’s travel out of the country for two months.

31On December 16, 2021, Justice Paulseth presided over the Case Conference and was advised that there had only been one visit supervised by Brayden pursuant to the Nurturing Parenting Program. The matter was adjourned to March 14, 2022 for a Trial Management Conference.

32On March 14, 2022 Justice Paulseth referred this matter to trial during the July 18-25, 2022 trial sittings and scheduled a continuing Trial Management Conference for April 26, 2022. On April 26, 2022, the focused trial plan referred to above was ordered.

33At the request of counsel the trial was adjourned from July 2022 to October 2022 due to outstanding disclosure. Justice Paulseth endorsed that if the case was not ready for trial in October 2022 it will be stayed.

34On October 14, 2022, the parties requested the trial be adjourned to the next sittings. Justice Paulseth stayed the case and ordered that a party may move to lift the stay once all disclosure and trial preparation was complete.

35On January 16, 2023, Justice Paulseth lifted the stay and set the case for trial in the February 2023 trial sittings.

36As will be set out below, the child has lived with the mother exclusively since July 15, 2020. After having five visits supervised by the society in 2020 the child has refused any further contact with the father. Further attempts were made for the child to have visits with her father through Brayden’s Nurturing Parent Program between October 2021 and February 2022 and as part of the clinical investigation by the OCL between December 2020 and January 2021 but the child refused any contact with her father.

The Law

Statutory Considerations

37Subsection 24(2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

38Subsection 24(3) of the Act sets out a list of factors for the court to consider when determining a child’s best interests. This includes a consideration of the child’s views and preferences, giving due weight to the child’s age and maturity.

39The court must consider whether there has been family violence as part of the best interests consideration. Family violence is defined in subsections 18(1) and (2) of the Act. Factors related to family violence are outlined in subsection 24(4) of the Act as follows:

Factors Relating to Family Violence

(4) In considering the impact of any family violence under clause (3)(j), the court shall take into account, (a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and (h) any other relevant factor. .

40Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

41Section 28 of the Act sets out the types of parenting orders the court can make.

42Subsection 33.1(2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33.1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

Best Interests

43The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It “is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her.” [3]

44The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. [4] Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. [5]

Family Violence

45The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[46] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows: The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

47Denigrating your spouse in front of the children fits within the definition of family violence. [6]

Children’s Views and Wishes

[48] In Decaen v. Decaen, 2013 ONCA 21 the Ontario Court of Appeal set out the following factors in assessing the significance of a child’s wishes: a) whether both parents are able to provide adequate care; b) how clear and unambivalent the wishes are; c) how informed the expression is; d) the age of the child; e) the child’s maturity level; f) the strength of the wish; g) the length of time the preference has been expressed for; h) practicalities; i) the influence of the parent(s) on the expressed wish or preference; j) the overall context; and k) the circumstances of the preferences from the child’s point of view:

49Where a parent has unduly influenced or poisoned the views and wishes of a child, the court is entitled to give them little or no weight. [7]

Parenting Time

50A starting point to assess a child’s best interests when making a parenting time order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. [8]

51The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being.

The Position of the Parties

The Mother’s Theory of the Case

[52] The mother’s theory of this case can be summarized as follows: (a) The father was abusive towards her throughout their 13 year marriage. He isolated her from her family. (b) The child has witnessed a significant amount of the physical abuse perpetrated by the father and is scared of her father. (c) The mother told no one of the abuse she suffered and trained her daughter not to tell anyone as she wanted to keep her family together and she was embarrassed. (a) The father forced the mother to obtain an abortion when she became pregnant with another girl after their first child. As of 2014, the mother was showing signs of depression due to the physical abuse she suffered, a miscarriage she had in 2012 and the abortion. (b) As a result of the physical abuse she suffered, a miscarriage in 2012 and the abortion, as of 2014, the mother was showing signs of depression. (c) The father wanted the mother to leave the marriage and, on many occasions, asked her to leave. The mother would not voluntarily leave the marriage as her goal was to keep her family together. As a result of her refusal to leave, the father began instigating the mother and gathering evidence in the form of photographs and videos to use against her. She was constantly being photographed or videotaped by the father (d) The father’s actions culminated in a fabricated assault on June 1, 2020 that led to her arrest and removal from the matrimonial home. The father created an audio tape in which both parties and the child can be heard. The father made it sound as though he was being assaulted and presented this audio to the police in support of his claim that the mother assaulted him. (e) After the mother was removed from the home the father would not allow her to see their daughter unless she signed a document prepared by him that set out the terms of her visits. She would not sign the document. (f) When the mother commenced this litigation her worst fears came to fruition as the father is claiming she suffers from untreated mental health issues and has alienated the child from her father. (g) The parties’ child is refusing to have contact with the father due to his abusive behaviour witnessed by the child her entire life. The mother has in no way coached or manipulated the child to reject contact with her father. (h) The father has taken no steps to address his abusive behaviour that has damaged the parties’ daughter. Until he does, and participates in reunification therapy, he should not have unsupervised parenting time.

The Father’s Theory of the Case

[53] The father’s theory of this case can be summarized as follows: (a) The father has always been a loving and supportive husband. He has never harmed the mother or their daughter. (b) The father has been the victim of violence by the mother. This began in 2018 following a period where the mother had negative thoughts and pursued treatment with a psychiatrist. (c) The mother became more and more aggressive and violent as of 2018. He could no longer endure her treatment of him after the assault that took place on June 1, 2020 so he called the police and the mother was charged with assault. (d) He insisted the mother sign an agreement before seeing the child following her removal from the home and her failure to do so was unreasonable and resulted in the child not seeing her for 45 days. (e) The fact that the mother left the child with the father for 45 days is only one example of many that demonstrates that the mother has never believed that the child is not safe in the father’s care. (f) The father learned in the course of the litigation that the mother was diagnosed with a mood disorder during the marriage and now realizes that her failure to treat the disorder has resulted in her passing on her negative thoughts to the child causing her to reject the father. (g) After the mother obtained a temporary custody order and the child was returned to her care in July 2020, the mother began coaching and manipulating the child. As a result, it was not long after the child returned to her mother’s care, that she began to resist contact with the father. As the child showed no fear of the father while in his care for 45 days during which the society did an investigation and concluded that the child was safe in his care, it is only logical to conclude that the mother has alienated the father from the child and what the child has told third party professionals is not her words or her experience. (h) As the mother has alienated the child from the father, the father should be granted primary care and sole decision making responsibility for the child or she will not have a relationship with her father. (i) The mother’s contact with the child should be supervised in order to protect the child from the mother’s alienating behaviour.

The Evidence

The Parties’ Respective Allegations of Domestic Violence

54The mother’s evidence is that the father has been physically, emotionally, verbally and psychologically abusive to her their entire relationship. She says he is short tempered and becomes violent when angry. She did not tell anyone about the abuse as she was embarrassed and wanted to keep her family together. When she did try to document the injuries she suffered as a result of the abuse by taking photographs, the father deleted them. She was able to keep some photographs safe and relied on them as evidence to corroborate her claims of abuse at trial.

55The mother said that she was orphaned when she was 8 years old and raised by her siblings. She wanted very much to have a happy and healthy marriage and a daughter who lives with and is raised by a mother and father. As a result, she said she did everything she could to keep her family together despite the abuse.

56In order to keep her family together, the mother explained that she had to ensure that her daughter did not tell anyone what was going on in the home. She “trained” the child not to disclose to anyone including relatives, teachers, friends or her tutor at Kumon what occurs in their home.

57The physical abuse described by the mother which she says is corroborated by the photographs is extensive. She claims to have been hit, punched, pinched, slapped, scratched, kicked and pushed. She produced colour photographs of bruising on her face, arms, leg, neck and back and cuts and scratches on her legs and arm.

58The mother also describes extreme emotional and psychological abuse by the father who she says was constantly photographing and videotaping her. She said he would assault her and then videotape or photograph her reaction, she assumed to use against her. She said this left her in constant fear.

59The mother also said she was isolated by the father who did not approve of her family and limited her contact with them. She had to hide when she spoke to her family or call them from her office.

60The mother says that the father and his family were not pleased to learn that she was pregnant with a girl. She says that the father and the paternal grandmother forced her to eat “herbal seeds” that they believed would change the sex of the fetus from a girl to a boy. When she resisted digesting the seeds, she said the father would “forcefully open my mouth and his mother would force the herbal seeds down my throat.”

61The mother says that when she learned she was pregnant with another girl, the father forced her to have an abortion. She says she did not want to have an abortion but she had no choice and has been “traumatized” by it.

62As a result of the abortion, the father’s abuse and her isolation the mother says she became depressed. The mother began seeing a psychiatrist and claims that the father would “coach” her on what to say. On some occasions the father attended the sessions with the mother. The mother says she has not been diagnosed with a mental illness other than depression which she attributes to the marriage.

63The father denies that he has ever been violent towards the mother. He says that he never saw the bruises or scratches on the mother’s body, other than the marks on her neck which was due to an allergic reaction to jewelry, until he saw the pictures she produced in the litigation.

64The father claims that the mother “on several occasions has threatened me that she will hit herself and get me in trouble. These threats have now materialized in her sworn affidavits.”

65The father says it is him who has been the victim of violence by the mother which began around 2018. He says that a video of the mother walking down the hallway outside their apartment in bare feet and holding a slipper is evidence of the abuse he suffered. The mother says she was outside the apartment in bare feet holding one shoe after the father beat her and she said she would defend herself with the slipper.

66He also says that in 2019 the mother broke a plate over his head “when she noticed I had her phone” and knocked him unconscious. He says she grabbed the phone from his hand and during the exchange “my hand got injured with a broken plate”. The mother and the child have both reported that the father broke the plate over his own head. The child told he OCL clinician that he used a part of the broken plate to cut his arm and then put blood from his arm on his face.

67The father did not call the police or take photographs of his injuries from the plate he claims the mother broke over his head.

68The father says that on June 1, 2020, the mother told him she wished to leave the home and left with her belongings at 9:30 p.m. When she returned an hour later, the father says out of fear for his safety, he turned on the voice recorder on his phone. He says when he refused to bring the mother’s luggage in from the hallway, “she physically assaulted me and that also got recorded.”

69The mother’s evidence is that on June 1, 2020, the father asked her to leave the apartment which she did hoping he would calm down. When she came back, she did not assault the father. Rather, he fabricated the voice recording to make it sound like she hit him. The mother can be heard laughing at one point in the short video. She sounds calm and then all of a sudden the father is crying out loudly, almost screaming in Hindi. He sounds to be crying and you can hear the child say “mama, mama”.

70The father admits to taking photographs and videos of the mother but says he did it to have a record of her increasingly erratic behaviour.

The Evidence of the Clinician from the Office of the Children’s Lawyer

71The clinician assigned to this case by the OCL, Eva Casino, has a Master’s degree in social work and is a registered social worker. She has worked as an OCL clinician for 21 years and as a therapist for 35 years. The child was 7 years old when the investigation was conducted between December 2020 and February 2021.

72Ms. Casino was not able to complete her investigation as the child refused to participate in an observation visit with her father. Despite this, the investigator produced an 18 page report which attaches an appendix of source information that is 29 pages and provides summaries of all the collateral information she collected.

[73] At page 11 of her report, Ms. Casino provides her observations of a visit with the child and her mother. She described their interactions as “warm and relaxed”. In summary, Ms. Casino reports: “The tone of the interactions was warm, playful and affectionate. [The mother] included [the child] in every decision. [The mother] was very gentle and soft-spoken in her interactions and encouraged [the child], who presented as very confident. Her previous family life seemed to be on her mind and [the child] recalled several negative memories of her father. It was of note that every time there was a noise from upstairs, [the child] had a startled response.”

74Ms. Casino also saw the child alone twice in her home. On both occasions the mother left the home during the interview. The child reported being very close to her mother and described what they liked to do together.

75Ms. Casino said that her interview of the child was one of the longest she has every recorded. The child went on at length about her recollection of what went on her family’s home and how it affected her. She “recalled her parents fighting almost every day since she was little. As what she meant by “fighting” she said she saw her father hurt her mother with his hands and his feet and his [finger] nails.” The child reported to Ms. Casino “I saw the fights. I was scared. Sometimes I’d go to my bedroom and closet: Mostly I hid in the closet. I would go in the middle of the fight. I wished my Mom could hide in the closet with me.”

76The child told Ms. Casino that she saw her father pull her mother’s hair and scratch and pinch her. She also said she has seen her father punch her mother a lot and she has seen blood on her mother’s knees. Ms. Casino reported that the child said, “My Mom would cry. Daddy would say ‘sorry, sorry’ after he hit her: I don’t want a dad like that.”

[77] During her interview Ms. Casino reports that the child went on at length and provided details some of which include the following: (a) When the fight was over her father would apologize to her mother and grab onto her. (b) Her father hates her mother who is scared of him. (c) Sometimes her mother would take her away when her father was upset as “we weren’t safe so we had to go”. (d) Sometimes her father would block the doorway so she could not leave with her mother. (e) She does not trust her dad. (f) She said her dad likes to take pictures. (g) She said her father would hurt himself and arrange items on top of him to look like he was hurt and try to blame her mother. (h) Both parents told her not to tell anyone about the fights between her parents. (i) After returning to her mother’s care she was scared she would have to go back and live with her father. (j) Her father broke things including her toys and punched the wall when he was angry. (k) She had bad dreams and stomach aches a lot.

78The child also told Ms. Casino that sometimes when her father hit her mother she got hurt. She said she sometimes got pushed and fell when her mother was being hurt by her father. She described an incident where her father broke a plate over his head and used the broken pieces to cut his arm and wiped the blood from the cut on his face. She said when the plate fell to the floor and broke further, a piece cut her face.

79The child also told Ms. Casino that her father became angry with her over trivial things. She described how he yelled at her for misplacing a pencil case and putting a doll in a drawer. She also said that she could not have friends over to her home and that her father would not let her play at friends’ homes. She said that her mother and her had to speak to her aunt in private or her father would be mad.

80The child told Ms. Casino that during the six weeks she did not see her mother between June and July 2020, after speaking to her mother on the phone, she told her father that she wanted to see her mother and “he hit me and he slammed the door loud”.

81The child told Ms. Casino that she does not like her dad and that he is a bully and has lied so much. She said she wants him to change. She said he needs “lessons” “to learn not to be upset and mad and bad.” When asked what she meant by “bad” she said hurting with his hands, and feet and nails and words.”

82When asked about the visits with her father that were supervised by the society, Ms. Casino said the child was frustrated with the society’s failure to respect her wish not to see her father. She said she hated the visits and reported to the society that they went well as she was scared of her father’s reaction. The child said to Ms. Casino that when she spoke to the society worker, “I made up stuff. I said fake things. I had to. I was living with him.” She also said when she spoke to the worker while living with her father, “My dad was close, so I said we had fun.” With respect to the supervised visits with her father after being returned to her mother’s primary care, the child said, “I smiled for the pictures he took: I told Natalie [second CAS worker]: It’s hard to be mad at my Dad: he might hit me” and that she was worried that she would be sent back to live with her father.

83In her evidence, Ms. Casino described the child as very intelligent, articulate and curious. She said when she discussed her familial circumstances she became more serious. Ms. Casino said the child was consistent over two interviews and gave a very clear and detailed accounts of what she experienced when her parents lived together.

84Ms. Casino also spoke of the reliability of what the child told her as she used language appropriate for her age, recalled a significant number of details and spoke of how she has been impacted by what she witnessed. Ms. Casino rejected the idea that the child has been coached to say what she did.

85Ms. Casino’s report is extremely thorough and detailed in terms of the information she collected and her observations of the child both with her mother and on her own. Ms. Casino believes that the child has witnessed domestic violence, specifically her father abusing her mother.

86Ms. Casino was a very credible witness. She gave straight forward answers and provided a very clear understanding of her findings. Her credibility was not damaged by cross examination.

The Evidence of the Worker from the Children’s Aid Society

87The society worker that supervised two of the father’s visits with the child after she returned to live with her mother in July 2020, and who had frequent interactions with the family, gave evidence. On the issue of domestic violence, the worker said that the society verified that the child was at risk of mental or emotional harm due to partner violence and risk of emotional harm due to risk of caregiver conflict.

88In their interaction with the family, the society conducted itself on the belief that there had been some domestic violence by the father against the mother. For this reason, the society suggested the father attend their ‘Caring Dads’ program which is designed to assist parents whose children have been exposed to domestic violence or child abuse.

89The society worker ’s evidence is that while there may have been one incident of a physical altercation involving mother, there was a pattern of violence by the father directed at the mother.

90The society worker’s evidence is that she believed the child to be genuine when she spoke to her about her experiences and her father for the most part [9] . The worker said that the child spoke to her like a child who has been exposed to domestic violence.

91The society worker said the child did not tell her that her mother hit her father.

92The society did not verify physical violence towards the child.

93The society worker’s evidence was fair and balanced and always focused on the child. Her evidence is extremely reliable as she was a very credible witness.

Conclusion and Findings Regarding Allegations of Domestic Violence

94The court had some concerns with the evidence of both parents.

[95] The father pointed out several inconsistencies with the mother’s evidence on this issue that he says undermines her credibility including the following examples: (a) The mother has made inconsistent statements regarding the alleged abuse in her reports to the police and the society. For example, she did not report being choked or hit with “heavy studded rings” or with a fist to the police. The mother says she was suffering from “trauma” and cannot recall exactly what she told the police and the society. (b) The mother did not report the alleged domestic violence to anyone until she was arrested for assaulting the father. The mother says that she did not tell anyone including her own family as she wanted to keep her family together and was embarrassed. (c) The father says the mother’s sister has no credibility as she said the mother sent her photographs of her injuries from the abuse in either 2018 or 2019 which contradicts the mother’s evidence that she did not tell her family about the abuse. (d) The mother told several medical professionals during the marriage as demonstrated by her medical records that her husband is very supportive and they have a good marriage. The mother says the father took her to her medical appointments and he told her what to tell the doctors. (e) The mother would not have left the child in the father’s care on several occasions and asked him to come pick her up when the mother was in a hotel for a night if she believed that the child was scared of him or would be at risk of harm while in his care. (a) The mother only alleged that the father had hit the child after the child was returned to her care. There are conflicting reports by the mother as to whether the father has hit the child. The mother says that she never reported that the father hit their daughter as she was always protecting him and did not want the father of her child to go to jail. This is a contradiction. The mother made complaints to the police about the father assaulting her. If the father had been charged and convicted, he could have been sent to jail. (b) The mother produced a photograph of a bruise around her mouth and said it was taken on May 2, 2019 a few days after she was assaulted by the father. He questions the authenticity of the photo because on May 5 th and 6 th , 2019, the mother attended the hospital for an ear infection and the hospital records do not disclose a bruise on her face. The hospital records from May 6, 2019, indicate swelling on the mother’s face but not a bruise. (c) The photographs of the marks on the mother’s neck are due to an allergic reaction to jewelry which is corroborated by the mother’s medical records and therefore is not evidence of abuse.

96Additional concerns about the credibility of the mother’s evidence about supporting a relationship between the child and her father are set out later in this judgment.

97In assessing the mother’s evidence, the court recognizes that it must consider the impact on the mother of being a victim of domestic violence and how that might affect the reliability of her evidence.

98While the court has some concerns with the mother’s evidence and treated it with caution, what buttressed the reliability and credibility of her evidence was the strong corroboration of her evidence combined with the lack of credibility of the father’s evidence which will be addressed below. Overall, the mother’s evidence on this issue considered with the evidence of Ms. Casino and the society worker is preferable to that of the father.

99The mother’s evidence that the father was abusive is supported by very clear colour photographs of her injuries. The father’s evidence that he never saw any of the bruises until he viewed the photographs is difficult to accept. He claimed to be a loving, supportive husband and father but failed to notice large purplish bruises and scratches on his wife’s body.

100The father’s evidence on whether he saw the bruising on his wife changed during cross examination. In his affidavit evidence in chief, he says “I recall a scratch on [the mother’s] neck and I also asked [her] about the scratch. [She] advised me that it was because of her long nails.” In oral evidence when asked about the injuries in the photographs produced by the mother, he said that he has never seen the bruises and cuts on her body prior to receiving the photographs as “we weren’t intimate”.

101The father’s evidence on the events of June 1-2, 2020 was confusing. He said in his direct evidence that he called the police on June 2, 2020 as he was concerned for his safety and wanted the mother’s aggression to stop but in cross examination he said he did not intend for the mother to be charged and that he called the police because he wanted a separation and to leave the home. He said he would have left the home and been content for the child to stay with the mother.

102The father’s evidence as to why he called the police is inconsistent with his insistence that the mother sign an agreement before seeing their daughter (this will be covered in detail later in this Judgment). If his intention was to move out of the house and let the mother and child stay there as he claims, why would he require the mother to sign an agreement before having contact with the child? Why not just let the child live with the mother as he claimed was his intention when he called the police? His evidence on this issue makes little sense.

103The father’s description of the assault that he claims occurred on June 1, 2020, includes no details at all. He simply says the mother “physically assaulted” him when he refused to bring in her luggage. The audio recording provided by the father does not provide persuasive evidence of an assault by the mother. The parties are not speaking English in the recording although the court was provided with a certified transcription. The parties sound very calm and the mother laughs and then suddenly, the father is crying out loudly, almost screaming in Hindi. He sounds to be crying and you can hear the child say “mama, mama”.

104The father says the audio evidence and the charges laid by the police is conclusive evidence that the mother assaulted him. Using his logic, the fact that the police charged him with assault of the mother, and she has photographs of her injuries is also conclusive evidence of his abusing her.

105The court rejects the father’s assertion. The court does not believe that the mother assaulted the father. The audio recording provided by the father in no way provides satisfactory evidence of an assault by the mother. Furthermore, the lack of details of the event provided by the father lends further support to the conclusion that the incident did not occur as the father describes. Even if it did and the mother hit the father on his shoulder as he claims on June 1, 2020, the court finds that this was likely an isolated incident.

106The father’s evidence that only the mother is to blame for not seeing the child for six weeks between June and July 2020 because she did not sign his agreement is incredulous. The mother does not trust him. Why would she sign something that he prepared? The mother’s friend was correct to be concerned about the legal implications of signing the father’s agreement. The mother’s decision to consult a lawyer and commence legal proceedings is completely understandable.

107The father argued that the child’s use of the words “Judge” and “lessons” is evidence of her being coached. I reject the father’s argument as the child was told about the Judge making decisions about her father’s parenting time by the society worker. I agree with the OCL clinician that the child answering “take lessons” when asked how the father could change is entirely appropriate for her age.

108The father’s claims that the mother was abusive towards him are not believable. The video of the mother walking down the apartment hallway in bare feet holding a slipper did not portray the mother as the father describes. The court cannot conclude from that short video that the mother was in any way acting aggressively or threatening towards the father.

109The father’s description of the plate incident is also dubious. He says the mother smashed a plate over his head knocking him unconscious and that his hand got cut by the plate when she grabbed his phone from her hand. He does not explain clearly how his hand got cut by a piece of the plate. He also took liberty with the word “unconscious” in his evidence in chief explaining in cross examination that he fell down as opposed to being unconscious. The mother and child both report that the father broke the plate over his own head and used a broken piece of the plate to cut his arm. The lack of details as to how the father cut his hand makes the mother’s and child’s version of events more plausible.

110It is clear from the evidence that the father photographed and videotaped the mother excessively. He attempted to rely upon a number of photographs and videotapes in support of his case. The sheer number of these items and what the father was documenting supports the mother’s claim that this behaviour was psychological abuse. For example, he said he took photographs of the mother walking in the parking lot outside their apartment building as she had been leaving the house unannounced and he did not know where she was going so, he photographed her. Once again, the father’s evidence seemed illogical.

111It is also puzzling why the father did not photograph his injuries considering he photographed and videotaped the mother excessively and doing mundane things like walking down the hallway or outside in the parking lot.

112I do not believe that the mother injured herself as the father alleges.

113The evidence of the OCL and the society worker is extremely compelling and corroborates the mother’s evidence. Both witnesses gave evidence that they concluded the child had witnessed her father be physically abusive towards her mother. They both gave evidence that there was no reason to conclude that the child’s comments to them were anything but genuine and stem from her own experienced.

114The OCL clinician denied any signs of the child being coached or manipulated by the mother and commented on the tremendous amount of detail the child provided of her experiences in the home with her parents and she used age appropriate language and spoke of how she was impacted by what she experiences.

115I find that the evidence demonstrates that the father was physically and psychologically abusive towards the mother throughout their relationship and that the child witnessed the abuse on several occasions. The father also exerted coercive control over the mother for example by isolated her from family, constantly monitoring and photographing and video taping her and insisting she sign an agreement before she would be permitted to see her daughter in June 2020. The abuse committed by the father against the mother was not a one-off, it occurred regularly and throughout the child’s life. I accept that there has been a pattern of violence by the father directed at the mother and which was witnessed by the child.

Child's Resistance to Contact: Violence vs. Parental Influence

116The father says the child has been coached and manipulated by the mother and her supporters. He says the mother is alienating the child from him. He says the words the child uses when she talks about him are not her words and that the mother has systematically eliminated him from the child’s life by negatively influencing the child against him, failing to follow court orders for parenting time, and failing to take the child for counselling despite several professionals recommending she do so.

117The mother vehemently denies all allegations that she has done anything to alienate, coach, influence or manipulate the child to refuse to see the father and says she has fully complied with all orders of the court regarding the father’s parenting time. She says she wants her daughter to have a relationship with her father and has actively encouraged one. She says conclusively “I have never taken any steps or made any comments to [the child] to minimize or criticize the Respondent.”

118The mother brought the child to all scheduled supervised parenting time but after the first five visits she simply refused to see her father. On some occasions, the mother’s family brought the child to a scheduled visit and she refused to get out of the car and go with the supervisor.

119The mother says that the father’s refusal to allow her daughter and her to see one another between June 2, 2020 and July 15, 2020 was traumatic for the child and that the father does not appreciate that this has had a lasting impact on the child and the father’s relationship with her.

120The mother’s evidence is that she completed all necessary intake forms for Brayden Supervision Services and the OCL. She says this is evidence of the fact that the child’s refusal to go has nothing to do with her or anything she has done.

121In support of his position on this issue, the father refers to endorsements of the Case Management Judge in which he notes the mother’s reluctance to facilitate the father’s parenting time and one occasion when the endorsement stated that the mother was of the opinion that the child’s relationship with the father should be terminated in supp

122The father says the mother suffers from an untreated mental health condition and as a result her negative thoughts and feelings about him are being transferred to the child.

123It is appropriate to address this issue by considering three periods of time: 1. During the marriage; 2. From June 2, 2020 until July 15, 2020 when the child was in the father’s care; and, 3. After July 15, 2020 to date during which the child has been in the mother’s care and has had little to no contact with the father.

During the Marriage

124The mother says the child witnessed many of the father’s assaults of her and she tried to shield her daughter as much as possible by covering her eyes and ears and sometimes leaving the home with her. She says the child often cried and hid in the closet. Both the mother and the child reported that sometimes the child was hurt during the father’s assaults.

125The mother says the father denigrated her to the child, often when she was not around. The child reported what the father said about her to the mother. The father also spoke negatively to the child about the mother’s family.

126The mother says that the child has been significantly impacted by what she witnessed. She is scared of her father and when they resided together, she engaged in self-preservation behaviour by doing and saying things to keep the father from becoming angry.

127The father denies the mother’s claim that the child witnessed him physically abusing her. The father says that he has been nothing but a loving, caring supportive father who was involved in all aspects of her life. He denies being a danger to the child or that she is scared of him. He says they have always had a very close relationship.

128The friend of the family who once lived in the same building as the parties and the child and whose wife operated a daycare in her home the child attended, said the child and father seemed close. He said the child never appeared afraid of him or any male parents that came to pick up their children. He noted nothing of concern about the child’s behaviour in his presence.

129The father provides no explanation for the detailed description the child provided to the OCL of what she witnessed other than to say that these are not the child’s words and that the mother had six months to coach her to say these things between July 15, 2020 and the commencement of the OCL investigation.

Child's Residence with Father (June 2 - July 15, 2020)

130On June 2, 2020, the mother was arrested and charged with assaulting the father after he called the police. She was not permitted to return to the home. The child was present in the home when the mother left with three police officers. The mother told the child that she was going to work and would be back.

131After the mother was charged with assault, she says the father would not let her see the child unless she signed a document he prepared which she would not do. As a result, she only had telephone contact with the child for six weeks.

132The mother says she spoke to her daughter every day who told her she missed her and asked when she was coming home.

133The mother’s family friend gave evidence that when he accompanied the mother to retrieve her belongings from the matrimonial home the child was hysterically crying. The father denies that the child was crying and the paternal grandmother said the child did not ever say she missed the mother.

134The same friend of the mother said that he communicated with the father via email and once by telephone to discuss the agreement the father was insisting the mother sign. The friend said that he felt the mother was being forced to sign something that may have legal consequences and that she should consult a lawyer. He told the father the mother would not sign the agreement. He said that during the telephone call he had with the father, the father became enraged and hung up on him.

135The father says that he immediately agreed to facilitate access between the mother and child and that her refusal to sign what was clearly a visitation agreement and not a custodial agreement is the only reason the mother and child did not see one another. Therefore, he says it is entirely the mother’s fault that the child did not see her for six weeks. He said it was unreasonable for the mother and her friend to refer to the agreement as a custody agreement as it clearly was not.

136The father also blames the child’s resistance to having contact with him on the mother telling the child that he called the police which resulted in her being arrested and removed from the home. The mother’s evidence is that she originally told the child that she was leaving for work but when the child repeatedly asked her when she was coming home in their daily phone calls, the mother says she became upset and emotional and told the child on June 11, 2020 that she would not be coming home as the father called the police and had her arrested.

137The society worker, the OCL and the therapist who met the child three times as part of an assessment she was doing that was not completed, all gave evidence that the child spoke about not seeing her mother for so long and that she missed her. The evidence provided by the third party professionals is that this period of separation had a negative impact on the child.

138The OCL clinician said that after speaking to her mother on one occasion during this period, the child told her father she wants to see her mother and he became very angry and yelled at her.

139The society worker said the child had a very difficult time with the separation from her mother and blamed her father for her mother’s arrest. The worker said that this was very traumatic for the child.

140The therapist who met with the child on three occasions in 2020 said that she talked a lot about how frightened she was when her mother was taken away and she did not know when she was going to see her again.

141The father relies on the society’s notes from the period of time when the child was in his care and she reported no concerns to the society who found that the child was safe in his care. [10] He does not view this period of time as traumatic or difficult for the child as she was happy and safe in his care.

Child's Residence with Mother (July 15, 2020 - Present)

Events Following Child's Return to Mother

142After the mother commenced court proceedings, she was granted temporary custody and primary residence of the child on July 15, 2020.

143After returning to her care, the mother says the child clung to her. She could not go to the bathroom without her worrying about where she was going. She says the child was scared and it took a long time for the child to believe she would not be taken away from her.

144When the child was ordered into the mother’s custody, the father was granted supervised access by a third party to be organized by the parties. The father says the mother’s failure to comply with court orders for his parenting time began right away.

145The father says the mother delayed the society’s first interview of the child after being removed from his care for 14 days. He asks the court to infer that in the 14 days between the worker’s visits with the child, she was coached by her mother on what to tell the worker.

146The mother says that the delay was due to her desire to give the child time to get comfortable and feel stable after the “trauma” she suffered and “after she was told so many bad things about me.”

Father's Supervised Visits with the Child

147The father had his first supervised visit with the child on August 6, 2020. The society worker wrote in the observation notes that the child was reluctant when she first arrived and would not go to her father or make eye contact with him. She noted that this behaviour was very different then the last time she saw the child with her father when she was in his primary care. The society worker says after some reluctance by the child to go towards her father, the visit went well and the father acted appropriately.

148The notes show that the child is comfortable in the father’s care, draws him a picture, enjoys a meal with him, sits close to him, says that she is not bored and does not want to go, and hugs her father goodbye. The notes did not indicate that the child was crying before or after the visit.

149The father says the society notes show that he is “not violent and aggressive”.

150The mother acknowledges that the society’s notes are mostly positive but says that the child was having serious negative reactions to the visits both before and after. She says the child had nightmares, stomach aches and was crying both before and after visits with her father. The mother says the child had “meltdowns” and refused to attend the visits and “I would encourage her by reminding her about how much the Respondent loves her.” The mother says, “I wanted the visits to go well for [the child’s] sake.”

151The father emphasizes the fact that the mother did not cooperate to schedule his second visit until September 24, 2020. This visit took place after a court appearance on September 17, 2020, when Justice Spence endorsed, “Despite my previous court order mother is not inclined to cooperate with supervised access.” The father says this is evidence that the mother delayed his visits in order to manipulate the child to refuse contact with him.

152The mother says that she was very busy at the time with work and her general responsibilities. She also had to come from downtown to the society’s offices during a working day which was difficult.

153After a visit scheduled for August 28, 2020 was cancelled by the mother due to her work obligations, the second visit supervised by the society occurred on September 24, 2020, 49 days after the first supervised visit. When the child arrived for this visit she told the worker that she did not want to see her father “because he says bad things to her about her mom”. After the society worker told the child that she will be there to make sure nothing bad is said to her, the child agreed to attend the visit. Once again after showing some reluctance to approach and interact with her father, the visit went well. The father acted appropriately and the child hugged him goodbye and posed for a selfie with him.

154The society supervised the father’s third visit with the child on October 1, 2020. When the supervisor approached the child upon her arrival, she immediately told the supervisor that she did not want to visit her father. She said she did not like that her father said “hey” to her rather than “hello” and she did not like that he was smiling. When the worker told the child that she thought the last visit went well, she responded by asking why she is having these visits and that she does not want to visit her father.

155The society worker spoke to the child about the visits being supervised for her protection. The child stated more than once that she is uncomfortable with the visits and said, “my mom basically told me he arrested her” and “I did not tell wrong things but he did and has been lying for my whole life.” The worker noted that the child was on high alert looking out for her father and that she “jumped a little each time she heard a door open and told me she was looking to see if it was her dad.”

156As the child continued to resist the visit and the supervisor encouraged her to attend, the child told the supervisor that she was worried that she would be removed from her mother’s care and forced to live with her father. Eventually the child agreed to attend the visit with her father.

157Considering the child’s comments to the supervisor and her resistance to the visit, it went quite well. The father was appropriate with the child, they played games and laughed and the supervisor recorded that the child “seemed at ease”. As they were about to leave, the child reminded the father not to forget to take their picture, which he did.

158After the visit the child asked to speak to the supervisor who asked her if she has any concerns about the visit. The child said no but that she is worried about how her dad will behave when the visits are not supervised. When the child was brought out to mother, she pulled the supervisor aside and asked “so are you going to continue with the visits?” The society worker told the mother that the visits are court ordered and will continue. She also told the mother that despite the child’s reluctance when she arrived, “the visit actually seemed to go quite well, she was happy during the visit and the father was appropriate.”

159The fourth visit supervised by the society took place on October 8, 2020. The visit went well as the child engaged with the father and appeared to enjoy the visit. The worker wrote that she was affectionate and playful with her father, giggled and smiled, posed for selfies and said, “I wish we could see each other for a long time.” At the end of the visit the father gave the child a watch, took more photographs and hugged goodbye. As the child approached the mother in reception and showed her the watch, the mother said, “So many bribes since this all started.”

160The father’s fifth and last visit supervised by the society occurred on October 15, 2020. When the society worker met the child to bring her into the visitation room she told her she did not want to attend the visit and that she had told her worker this multiple times but still has to attend. After some discussion the child agreed to go with the society worker and attend the visit. In front of the child the mother said to the worker that she does not understand why the child is being forced to attend the visits and that she is only going because her father gives her gifts. The mother said that the child gets nervous before and after the visits and the child added, “Yes, I get nightmares, tummy ache.”

161When the child saw her father he hugged her but she did not hug him back. She then asked for her gifts. The father redirected the child and then set out the food he brought which they ate together. When the father took some pictures of the child, she used a code word which signaled to the worker that she wanted to be removed from the visit. The society worker took the child out of the room and she said she did not like her father taking photographs of her as he will show them to her grandmother. The worker asked the child if she wanted her to ask the father to delete the photographs and she said no, but to tell the father for the next visit. The child agreed to return to the visit.

162The rest of the visit went well and the child allowed the father to take more photographs. The society notes state that the child smiled, giggled and engaged in conversation with her father.

163When the society worker brought the child to her mother and was leaving, the mother called her back and said in front of the child, she “is crying because she gets really nervous and now she will be like this for a [sic] 2-3 days.” The worker asked the mother not to talk about the visits in front of the child and then asked her why she is crying. The child said, “I don’t want to choose who to live with…I like dad, I like playing and I like when he brings me presents and I also like to click pictures but I don’t know.” The mother then asked the society worker to document that the child feels uncomfortable before and after the visits and that she feels that she is being forced to attend.

164Shortly after the visit on October 15, 2020 ended, the mother called the society worker and told her that the child, who she could hear sobbing in the background, is very uncomfortable with the visits with her father and being told she has to go. The child told the worker she wants the visits to stop and that she only wants the gifts.

165The society’s notes described a follow up conversation between the worker and the mother on the same day. The mother told the worker that the child is very upset after visits and that she is concerned about the stress this is causing the child. She said that it takes days for her to calm down and that she is having nightmares and stomach aches. They discussed counselling for the child which the worker emphasized was important.

166In this conversation the mother asked the worker “if the Society can do anything to stop the visits.”

[167] On October 21, 2020, the mother sent the society worker and email which is in effect a request for the society’s assistance in terminating the visits between the father and the child. The mother implores the worker noting that the child cries before and after the visits and attaches three videos of the child that she says were taken before the September 24, 2020 visit and shows the child’s distress at being forced to attend the visits. The mother writes in this email, “[The child] has never had a childhood, since she was in my womb. She has only witnessed Violence, Physical, verbal and mental, by [the father]. That problem needs medical treatment. [The child] is a battered girl child. I am a battered woman….I have suffered [the father’s] violence since the night of my marriage in 2009, 13 years ago, [the child] has suffered since she was conceived in 2013…all [the child] asks for is to have what remains of her childhood, away from [the father’s] violence.

168The father says the videos the mother sent the society cannot have been recorded just before the visit of September 24, 2020, as the file is recorded as “VID-20200926” which is September 26, 2020, two days after the visit occurred. The mother cannot explain the discrepancy with the dates. The father says that these videos show the child sitting on the mother’s lap while a third party makes the recording [11] . He says this is evidence of the mother’s manipulation of the child.

169On October 21, 2020, the society worker who gave evidence at the trial spoke with the mother and child. The mother expressed her concern about the ongoing stress the visits with the father are causing the child. The worker then spoke to the child and asked her if anything would make her feel more comfortable with her father? The child told her that what will help is not seeing her father “because it’s obvious, he beats”. She then said, “I love him if he wasn’t fighting and arresting people and telling lies.”

170On October 21, 2020 the society notified the parties that as the child was resisting contact with her father, they can no longer supervise his parenting time.

Appointment of the Office of the Children’s Lawyer

171On August 17, 2020 the Case Management Judge made an order on consent requesting the involvement of the OCL. Despite the father’s lawyer providing the mother with the intake form to be forwarded to the OCL, the mother did not complete the form and the request for involvement was declined on September 8, 2020.

172The mother says she did not complete the OCL intake form as she was “in so much trauma”, did not have a lawyer and was not sure what to do. On the date of the order, the mother was in fact represented by counsel who was not removed as her solicitor of record until August 25, 2020.

173The father says that the mother purposely delayed the involvement of the OCL “because she need[ed][sic] more time to coach [the child].”

174The Case Management Judge made a second order appointing the OCL on November 19, 2020. Justice Spence ordered the parties to complete and deliver the intake forms to the OCL within seven days. Justice Spence asked the OCL in his endorsement to consider this a high priority case and endorsed, “I have made it clear to both parents that the OCL shall be entitled to observe the child and the father together, if so requested, and the mother is to cooperate fully with the OCL investigator, notwithstanding any reluctance which may be expressed by the child to the mother to attend such observation visits.”

Attempts at Supervised Parenting Time by Brayden Supervision Services Inc.

175On February 22, 2021, the father’s lawyer communicated with the mother and proposed that the child and father participate in Brayden’s Nurturing Parent Program. The mother did not respond to the lawyer’s communication. She said that she was waiting to see the outcome of the OCL’s report. [12]

[176] On April 6, 2021, the parties attended in court and Justice Spence endorsed the following: “Father is proposing two visits per week supervised by Brayden. Mother is not prepared to consent and is currently taking the position that the long history of abuse and violence by the father should result in a termination of the parent-child relationship with the father.”

177The mother testified that she never wanted to terminate the child’s relationship with her father but she was unrepresented and “I’m not very good at speaking English”. She said she wanted the father to go for an assessment and improve himself by, for example, taking an anger management program.

178On May 31, 2021, on consent the court ordered the father to have therapeutic/reintegration parenting time with the child facilitated by Brayden’s Nurturing Parent Program. The parties were ordered to “cooperate with Brayden to ensure that all intake or other documentation is completed so that the visits can commence at the earliest opportunity.” The mother was ordered to “take all reasonable steps to encourage [the child] to participate in the supervision access visits.”

179By June 25, 2021, Brayden had not received the mother’s intake form. In her evidence in chief, the mother acknowledges that she was slow in contacting Brayden supervision services after the order was made for the Nurturing Parent Program on February 8, 2021 because she did not have a lawyer and “truly did not understand the process”. In cross examination the mother denied any delay and said that she sent the form in on time but there was some sort of error with their “internal system” and they did not see if.

180Between July 9, 2021 and July 20, 2021, the father’s lawyer attempted to have the mother agree to the visits occurring at a location of a Toronto Public Library. Before they were able to agree, the father left the country to be with his ailing father in Ohio. He was gone between August 3, 2021 and October 3, 2021.

181On the first visit with Brayden scheduled for October 30, 2021, the child refused to get out of the car. She told the supervisor in no uncertain terms that she did not want to see her father. She used very strong, direct words to convey her wishes to the supervisor as evidenced in the observation notes.

182The supervisor asked the mother if she could speak to the child privately but the mother refused. When the supervisor asked if the mother was consenting to the child seeing her father, the mother did not answer. The mother said, “I have tried to bring her here, she is here, I cannot force her.” At that point the child says from the car, “I told you, tell the judge that I say I do not want to see my father that is my final answer.”

183The father cancelled the next scheduled visit for November 7, 2021, and on November 11, 2021, his counsel at the time emailed Brayden to advise that the father is requesting to pause the Nurturing Parent Program to attend reunification therapy, something suggested by the Service Director at Brayden.

184The father’s evidence is that he returned to the Nurturing Parent Program after the court did not support his request for reunification therapy on December 16, 2021 and the parties were instructed by the court to attend the Nurturing Parent Program as ordered.

185A second attempt at a visit at Brayden took place on January 15, 2022. After 20 minutes of trying to coax the child out of the car, she was told that if she went inside the centre with the supervisor, they would play a game and she would not have to see her father. She agreed and began walking towards the centre with the supervisor when “the mother stepped out and was visible to [the child]” and [the child] saw her and ran towards her.” When the supervisor suggested to the mother that she leave, the mother told her that the child wanted and her and said, “What I must do?”

186The child and father did not see one another on January 15, 2022. He says that the mother interfered with the visit by stepping out of the car so the child can see her. The mother says that she went inside the Brayden centre on January 15, 2022 as it was very cold and she was trying to warm up. Her evidence is contradicted by the observation notes kept by the Brayden supervisor.

187When the child arrived at the Brayden centre for the next visit on January 22, 2022, she would not get out of the car and yelled at the supervisor “You don’t understand me, I do not want to see my father!” After about 15 minutes of trying to convince the child to go inside to meet her father without success, the visit was cancelled.

188On February 2, 2022, Brayden notified the parties that as the child would not participate, they could not provide the Nurturing Parent Program to her and the father.

Mother's Decision Regarding Child's Counselling/Therapy

189The father says that the mother’s failure to obtain counselling for the child is part of her plan to alienate the child from him. He refers to a number of recommendations from third party professionals for the child to receive counselling. He believes the mother’s failure to arrange for therapy for the child is out of fear that it would result in him being reintroduced into her life.

190The society, the OCL and Brayden all recommended some sort of counselling for the child. In 2020, the mother took the child to see a counsellor who suggested she complete a psychological assessment of the child. The child attended three visits with the therapist and the mother terminated the relationship before the assessment was completed.

191The father says the mother terminated the relationship with the therapist because she wrote that the child should have contact with the father sooner than later.

192The mother says that she could not take time off work to take the child to the therapist, she had recently moved, was busy and, the sessions were expensive. She also said that the child had “settled” after the tumultuous period when she was with her father for six weeks without seeing her and is now in a supportive environment. The mother also said she did not complete the assessment as “I was traumatized”.

193The mother was asked why she did not take the therapist’s offer to have sessions with the child on weekends and her evidence on this issue changed slightly. She said that by the time the child was free of the controlling, monitoring behaviour of the father, she was doing well and the mother thought the child could recover without counselling.

194The society notes make it clear that the mother did not believe the child needed counselling. She asked the society workers why her daughter needs counselling when it is the father who needs help. She also said she does not need to enquire why the child is having nightmares and stomach aches as she knew the reason was her being forced to see her father.

195The society’s notes show they offered to cover the cost of the counselling that was not covered by the mother’s insurance. When asked whether the society offered to pay the for the counselling the mother said she did not recall. She also did not know if she had benefits for counselling for the child which demonstrates that she did not make this enquiry with her insurer.

Mother's Mental Health and Child's Resistance

196The father believes that the mother has an untreated mental health issue that is causing her to pass on her negative thoughts of him to the child.

197The father presented the mother’s medical history in detail through her medical records. He believes she has a mood disorder as one medical professional queried that in his notes in 2016. He says he did not know the mother was diagnosed with a mood disorder until he obtained her medical records in the course of the litigation and now it makes sense to him that the mother’s refusal to take medication for the disorder is causing her to negatively impact the child’s view of him.

198Medical records show that the mother saw a psychiatrist in 2016 and 2017. She also had several appointments with her family doctor during which she discussed her mental health struggles. In 2017, the mother’s psychiatrist noted in his records that his impression of the mother is that she is suffering from a “major depressive disorder, current episode mild-to-moderate without psychotic symptoms”.

199The mother denies being diagnosed with a mood disorder or having any current mental health issues. She says her relationship with the father triggered her depression and she pursued treatment at the time. Now, she says the father is attempting to use her depression against her in this litigation.

200While the society did not express concern that the mother may be suffering from a mental health issue, the worker said that it is “very clear” that the mother does not think visits with her father is in the child’s best interests “and she didn’t want these visits to go ahead even with the safeguards we implement. [The child] would pick that up from her mom and her mom’s behaviour.”

201The worker gave evidence that there was pressure on the child to say things others wanted her to say. The worker said that she believed the child felt that if she reported enjoying visits with her father to her mother, her mother would be offended.

202The worker said that “there is pressure on [the child] with respect to her relationship with her father because it did not align with her mother’s hopes.” She said, for example, the mother’s comment in front of the child after the visit the father gave the child a watch that he is bribing her, puts pressure on the child that could have been relieved if she said something positive.

Conclusions and Findings Regarding Child's Refusal to Have Contact with Father

203The father denies being abusive or aggressive in any way towards the mother during the marriage or that the child ever witnessed any violence perpetrated by him. The court has already found that the father engaged in a pattern of violence against the mother which the child witnessed. What the child experienced before her parents separated has certainly affected her view of her father and in turn her relationship with him.

204The father sees everything as black and white. If the mother did not report abuse, the abuse did not occur. If the mother told her psychiatrist that he was a supportive husband, then he was a supportive husband. If the mother ever left the child in his care, then he cannot be violent or aggressive. If the child laughs and plays with him at visits, she clearly is not scared of him and therefore he did not abuse the mother.

205This case is anything but black and white. The effects of domestic violence on the victim and children who witnessed it are very complicated. The evidence in this case demonstrates this fact in a very stark manner.

206The evidence demonstrates that the child loves both her parents. She has said as much to the third party professionals who gave evidence. The evidence shows that she is clearly very attached to and comfortable with her mother and likely wants to protect her. Wanting to protect her mother and the attachment she has to her will influence the things she says and does, especially in relation to her father.

207Not only has the father hurt the mother to whom the child is loyal and aligned, he has also hurt the child by exposing her to his violent behaviour. He has hurt and scared the child which has impacted the child’s trust in him. This has undermined her sense of security and stability and her ability to trust adults. Therefore, he has hurt the child in a significant way.

208The father must educate himself through counselling to understand what his daughter has endured and how he has contributed to that. If he does not do this, he may never be able to work his way back into her life, which is something he demonstrated at the trial to be the singular most important thing to him. He must take some responsibility for what his daughter is experiencing and why she resisted contact with him.

209The child has not had the opportunity to process the violence she witnessed during the marriage perpetrated by one person she loves against another person she loves. This is further complicated by her natural alignment with her mother who does not support her having a relationship with her father. Her love for her parents and the emotions she is experiencing must be an enormous burden for a 9 year old child to manage. This is why several people have urged the mother to arrange counselling for the child. The child is not emotionally and psychologically well. She needs counselling, as recommended, to process and try to understand all the emotions she is experiences in her very young life.

210The father’s actions on June 2, 2020 have left an indelible mark on the child. First of all, he made an audio recording of an assault that likely did not occur, or at least did not occur as he claims, called the police and relied on it to have the mother charged with assault and removed from the home. This resulted in the child not seeing her mother for six weeks and learning her father was responsible for her mother being arrested by the police. Then he refused to allow the child to see her mother unless the mother signed an agreement he drafted. This ruptured her sense of security with her mother. She now lives with the fear that if she engages more with her father this might result in her losing her mother again. She wants to protect that at all costs.

211The father kept his 7 year old daughter from her mother for six weeks for which he shows no remorse and very little understanding of the impact this had on her. He refuses to acknowledge that this was traumatic for the child and said repeatedly that it goes both ways as he has not seen his daughter for almost two years.

212The father’s evidence for the period of June 2, 2020 to July 15, 2020 demonstrates his lack of insight into his daughter’s needs and best interests. He takes no responsibility for his role in the events of June 2, 2020. He is unable to be retrospective and consider that the choices he made have significantly impacted his daughter and their relationship.

213The father boasts that he was sensitive enough to his child’s needs not to tell her that her mother made complaints to the police that resulted in him facing criminal charges. The mother was in a very different situation. Her daughter saw her taken away by three police officers. She told her not to worry that she was just going to work. Several days later when the child asked the mother when she will see her and when is she coming home, the mother breaks down and tells the child her father called the police and she cannot come home.

214Yes, the mother’s judgement was questionable but the father must take the bulk of the responsibility for the child learning what he did. He put the mother in an awful situation. Had he just let the child stay with the mother as he said he intended or at least let her see her mother regularly, she might have been better able to avoid telling the child the truth.

215While the father’s conduct has contributed significantly to the child’s refusal to see her father, I reject the mother’s evidence that she has done nothing to influence the child’s views of her father.

216The mother is also unable to accept any responsibility for the child’s refusal to see her father. While her life was clearly in turmoil, she did not say in retrospect that she regrets telling the child that her father is responsible for her being arrested and unable to return home. She also did not give evidence to suggest that she understands how her conduct in relation to the father’s parenting time sends negative message to her daughter. She did not demonstrate an understanding of how her choices have contributed to the trauma the child has suffered. She also does not show an appreciation for how her conduct and comments in front of the child have influenced the child’s view of her father.

217The mother has clearly interfered in the child’s relationship with her father. This finding could be based solely on the mother’s request to the society to terminate the father’s visits and to Justice Spence to terminate the child’s relationship with her father. But it is more than that. It is the videos she took of her daughter and sent to the society. It is the comments she made to the society inappropriately in front of the child more than once. It is her refusal to allow the Brayden supervisor to speak privately with the child and it is her decision to come into the child’s view after the Brayden supervisor finally convince the child to go into the centre with her.

218While at times the mother’s messages to the child may have been subtle or indirect, such as the comment about the father bribing her with presents, other times she is very direct and shows no subtlety at all. She made it very clear on several occasions in court, in meetings with the society and during the Brayden intervention that she does not support the father seeing the child. The mother is not absolved of blame in relation to the child’s resistance to contact with her father.

219Everyone that spoke about the child said she is very intelligent and articulate. The parents are also very clearly intelligent. The mother should know that if she makes negative comments about the father or the visits or she records the child sitting in her lap talking about how she does not wish to go on the visits, she is sending a very clear message to the child that she does not support her having a relationship with the father. The child’s loyalty is to her mother which makes the pressure on her to reject her father to align with her mother’s wishes immense.

220The mother’s position that she whole heartedly supports the child having a relationship with her father and not only has she done everything to foster that, but she has also done nothing to negatively impact it is not supported by the evidence. This is simply not true. Her actions are inconsistent with her evidence and statements to third parties.

221The evidence demonstrates that the mother delayed implementing the father’s parenting time which was to be supervised by the society. She failed to send an intake form to the OCL when they were first appointed. She told Justice Spence that she believes the child’s relationship with her father should be terminated. She engaged in behaviour that grossly delayed the child and father’s participation in the Nurturing Parents Program [13] . While she did take the child to all the scheduled visits, her behaviour before and after the visits as documented by the society and Brayden make it very clear that she in fact does not support the child having a meaningful relationship with her father. Her actions speak much louder than her words.

222That being said, the mother’s choices and conduct are informed by her experiences during and immediately after the marriage. The court cannot ignore the fact that she has been a victim of significant domestic abuse when considering her conduct.

223I find that the mother does not suffer from an untreated mental health illness as the father claims. The evidence does not support such a conclusion.

224What the mother has engaged in is not parental alienation. Her actions are the result of years of abuse by the father. She believes she was protecting the child and acting in her best interests. She did not act on false beliefs nor was she scheming to eliminate the father from the child’s life. She was doing what she thought she needed to do to protect her daughter. The mother too needs counselling. Given what they have been through, the mother has a lot of work to do to take care of the child’s and her mental health.

225The evidence at this trial has made it clear that both parents have at times failed to show good judgment and make child focused decisions. They both likely require the assistance of a mental health professional to understand why they made the choices they did and how those choices have impacted their daughter and her relationship with the other parent.

226I cannot say with certainty why the mother did not pursue counselling at least for the child if not for herself. It may very well be that she was worried that counselling for her daughter would provide a gateway to a relationship with the father that she did not support. Her evidence is that she is now ready to support reintegration therapy and she supports an order for same. The court is optimistic that a structured court order in addition to the findings made in this judgment will assist the mother in making positive changes in her life that will assist her in supporting her daughter’s needs and best interests in relation to the father.

227I find that the child’s physical, emotional and psychological safety, security and well-being is best fostered and promoted in her mother’s primary care. Removing her from her mother’s care would be extremely detrimental to her wellbeing and therefore contrary to her best interests.

228I find that the child’s connection to her mother and the stability she enjoys in her care must be maintained in order to promote her best interests. This requires an order that she maintain her primary residence with mother. The strength of her relationship with her mother, her views and preferences, the mother’s demonstrated willingness and ability to care for her, and the impact of domestic violence on the child all provide further support for an order maintaining the child’s primary residence with the mother.

229As the mother has been a victim of significant domestic violence by the father, I find that an order for joint decision making with respect to the parties’ daughter is not in the child’s best interest. The mother cannot be expected to engage in joint decision making with a former spouse who was violent towards her throughout their 13 year marriage and who she does not trust. Parents who do not trust and respect each other will likely face serious difficulties making decisions regarding their child together. This is exhausted by the power imbalance in the parties’ relationship. Therefore, I must determine which parent is better able to carry out the responsibilities entrusted to them as the decision maker for the child.

230The mother was granted a temporary order for decision making responsibility for the child on July 21, 2020. She has for the most part carried out the responsibilities associated with this order for over two and a half years without concern or complaint from the father. There were no issues raised about the mother’s care of the child’s education or medical needs. I find that the mother, as the child’s primary caregiver, and who has had sole decision making responsibility for the child for over two years is best equipped to make major decisions regarding the child prospectively. Therefore, I find that it is in the child’s best interest for the mother to have sole decision making responsibility for the child.

231Both parents ask the court to order reunification therapy. I find that such an order is in the child’s best interests in order to maintain a semblance of hope that she can enjoy some type of a relationship with her father. But, in order for there to be any chance of success, both parents must obtain some counselling or guidance to prepare themselves for how to deal with the feelings and emotions their daughter has as a result of her experiences. If they do not do this, I fear there will be little chance of a successful reunification. They also must learn how to interact with their daughter in a manner that does not influence her opinion or views of the other parent. She must be afforded the opportunity to make decisions regarding her relationship with her father based on her experiences and feelings and not be influenced or pressured by anything her parents say or do. They must learn how to free their daughter of this pressure.

232The father specifically must understand that a successful reunification with his daughter is likely dependent, in part, upon him accepting responsibility for the lack of a relationship that currently exists. He cannot expect to pursue reunification therapy without addressing head on the violence that occurred in front of the child.

233The mother asks for the father to be solely responsible for the cost of the reintegration therapy. The mother must be required to contribute towards the cost so that she too is investing in her daughter’s future relationship with her father which the mother said repeatedly in her evidence is important and is a relationship she has always fostered. It is important for both parents to contribute to the cost of the reintegration therapy to demonstrate that they have an interest in the process and hopefully a positive outcome.

234I decline to make the orders requested by the mother for police enforcement of this order as well as an order restraining the father’s contact with the mother are dismissed as I do not find that the evidence supports such orders being granted.

Orders

235The mother shall sole decision making responsibility with respect to the child, V.R. who shall have her primary residence with the mother. The mother shall notify the father of all major decisions she makes affecting the child through the parenting app referred to below.

236The mother shall be permitted to obtain the child’s passport and all government issued identification without the father’s consent or signature on the applications.

237The mother shall be permitted to travel with the child outside of Canada for a vacation without the father’s prior written consent. The mother shall provide the father with a detailed itinerary of the trip at least 14 days prior to travel.

238The parties shall communicate about the child through a parenting app such as Appclose. If they cannot agree on which app to use, the mother shall decide.

239The father shall complete a parenting program such as ‘Caring Dads’ as soon as possible.

240The mother shall pursue counselling for the child to help her process the violence she witnessed during the marriage.

241The mother shall give serious consideration to pursing counselling for herself to address the impact of the violence she suffered and how that impacts her views of the child’s relationship with her father.

242Neither parent shall expose the child to adult conflict.

243Neither parent shall speak negatively about the other parent to or near the child or allow any third parties to do so.

[244] The father shall have parenting time with the child as follows: (a) The parties shall immediately retain the services of a qualified professional to conduct reunification therapy for the child and her father. (b) Within 14 days of the date of this order, if a qualified professional has not already been retained, the mother shall provide the father with the names of three professional therapist qualified to conduct reintegration therapy and who she is prepared to retain and the father shall have 14 days to advise the mother of which therapist he chooses to conduct the reintegration therapy. (c) The parties shall cooperate to retain the professional reintegration therapist on an expedited basis and attend all appointments on the first available dates offered to them. (d) The structure of the therapy shall be determined by the professional reintegration therapist chosen by the parties to complete the reintegration therapy. This includes whether and when the child and father might have sessions together and how and where that occurs. (e) The goal of the reintegration therapy is to allow the child and the father to have meaningful unsupervised parenting time together. This may require a number of supervised visits first either following the reintegration therapy or as part of the therapy, followed by unsupervised day visits that may or may not require supervised pick up and drop off, followed by longer day visits and eventually uninterrupted overnight parenting time. The timing of each increase in the father’s parenting time will be informed and guided by the reintegration therapist and the child’s best interests given the progress of the therapy. (f) The therapist shall be provided with a copy of this Judgment. (g) The father shall be permitted to bring a Motion to Change his parenting time if the parties cannot agree on what parenting time is in the child’s best interest only after completion of the reintegration therapy as confirmed by the therapist.

245The parties shall share the cost of the reunification therapy such that the mother shall be responsible for 25% of the cost and the father shall be responsible for 75% of the cost.

246If either party is seeking costs of the trial, they shall serve and file costs submissions not exceeding five pages not including Offers to Settle or a Statement of Costs within 20 days of the date of this Judgment. The cost submissions shall be filed with the court by delivering a hard copy to the Trial Coordinator’s offices.

247A party responding to a claim for costs shall have 20 days to serve and file their response which shall not exceed five pages not including Offers to Settle or a Statement of Costs. The responding submissions shall be filed with the court by delivering a hard copy to the Trial Coordinator’s offices.

Released: March 20, 2023 Signed: Justice Melanie Sager

1Pintea v. Johns, 2017 SCC 23.

2This order was made before the amendments to the Children’s Law Reform Act replacing terms like “custody” and “access” with “parenting orders”.

3Phillips v. Phillips, 2021 ONSC 2480.

4Gordon v. Goertz, 1996 SCC 191.

5Young v. Young, 1993 SCC 34; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

6Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235; V.P. v. D.M., 2019 ONCJ 289.

7A.M. v. C.H., 2019 ONCA 764.

8I.A. v. M.Z., 2016 ONCJ 615; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

9I will address the worker’s concerns about pressure on the child to say things others wanted her to say later in the judgment.

10It is important to note that these interviews of the child took place before the child knew the mother was arrested, as opposed to being away from the home for work and would not be returning to the home.

11The videos are in Hindi.

12The OCL’s report is dated February 17, 2021.

13I must note here that it was very poor judgment on the father’s part to leave Toronto for two months while he is trying desperately to get reacquainted with his daughter through Brayden’s Nurturing Parent program.