Court File and Parties

Court File No.: D55033/11 Date: 2015-01-26 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Robert Scarlett, Applicant (father) And: Robyn Farrell, Respondent (mother)

Before: Justice Robert J. Spence

Trial heard: 15, 16, 17, 18 and 19 September, 14, 24 and 27 November and 23 and 24 December, 2014

Reasons for Judgment released on: 26 January 2015

Counsel:

• Mr. Danny Bertao, for the applicant, father
• Ms. Andrea Kim, for the respondent, mother

Introduction

[1] This is primarily a one-issue case. The parties are the natural parents of a daughter, Al.. ("child") who is seven years old. The father has consented to sole custody to the mother.

[2] The father has had no contact with the child for almost three years. He seeks an order for access to the child. Initially, he is asking for supervised access, bi-weekly, with the access to be reviewed in six months' time. The mother is asking the court to formally terminate the father's relationship with the child by ordering that there be no access whatsoever, now or in the future.

Background Prior to the Birth of the Child in March 2007

[3] The father is 51 years old. The mother is 31 years old. The father says that when the parties met, he was 39 years old and the mother was 18 or 19 years old. Shortly after meeting, the parties began to live together.

[4] The father's evidence in chief reveals only sparse detail concerning the first several years of the parties' relationship, prior to the birth of their child. He acknowledges that they experienced "difficulties in our relationship", but attributes those difficulties to the fact that the mother was "very young and wanted to spend time with her friends, attend parties and travel", whereas the father preferred to "settle down and build a family".

[5] In his evidence in chief, the father made a number of accusations about the mother and her behaviour, including that the mother worked as a prostitute and an "adult club dancer". He stated that their relationship problems were attributable to the mother's inability to "contain her emotions", and that she experienced "severe outbursts of anger".

[6] More specifically, the father testified:

[Mother] would threaten to make allegations to the police or she actually made allegations to the police against me. . . . as a way of maintaining control, such as being free to decide when she wants to involve me in her life or [the child's] life. At times, during an argument, she would suddenly say wild accusations about me and threaten to have me charged. . . . [She] was verbally and emotionally abusive in our relationship and I still feel the effects of her abuse.

[7] Father acknowledges that he was convicted of assaulting the mother in 2006. He characterizes the assault as simply "aggressively pulling a dog leash from [her] hand". However, the incident was actually witnessed by an undercover police officer who stated that

[the father] chased [the mother] . . . caught up to her and struggled [with her] for control of the dog leash . . . and violently pushed the victim backwards causing her to stumble and almost fall to the ground.

[8] Father states that apart from that incident "I have not committed violence against [her] or threatened to commit violence.

[9] Mother has a very different story about the parties' relationship prior to the birth of their child.

[10] She testified that the relationship was an abusive one, almost from the outset. Only five days after they moved in together, in December 2003, she says that he struck her when she began to cry because he had forgotten her birthday. She says that she was so upset with him that she used "vulgar" language toward him.

[11] On October 23, 2004, the police were called to their apartment. The mother says that he was being violent, that he trashed their apartment and would not let her leave. The police report confirms mother's complaint that she was being held in the apartment against her will.

[12] On November 26, 2004, the mother says that the father "forced himself on me sexually and he hurt me". She attended a walk-in clinic with bruises on her legs. The clinic report was filed as an exhibit.

[13] Another walk-in clinic report dated May 18, 2005 states "assaulted by ex-boyfriend". Mother says father raped her on that occasion.

[14] At least one of the clinic reports disclosed some observed bruising on the mother's body.

[15] On cross-examination, father's counsel accused mother of lying about both those incidents, suggesting that if she was raped – or assaulted – the perpetrator was another ex-boyfriend who, mother acknowledges, had previously been stalking her.

[16] In February 2007, the mother made an application for compensation to the Criminal Injuries Compensation Board, for injuries she says she suffered at the hands of the father.

[17] Mother testified that the father "continued to assault me on a weekly basis", stating that either she or her neighbours would often call the police.

[18] Despite mother's allegations of father's abusive behaviour toward her, father's counsel accused her of repeatedly lying and, in doing so, he referred to a number of inconsistencies in mother's evidence which, at least to some extent, suggested that she was not being entirely truthful.

[19] Nevertheless, in one police report dated May 24, 2005, the police officer who prepared the report, after being called to the parties' home, noted [my emphasis]:

Police were advised by [the neighbour] who lives . . . across the hall . . . that it is not unusual to hear both parties yelling and arguing in their apartment.

[20] On this particular occasion another neighbour had called the police because he heard shouting and arguing, and he believed that there was a domestic incident occurring in the parties' apartment. However, when the police arrived and investigated, the police officer noted in his report that mother stated father "had never physically harmed her".

[21] The foregoing is intended only as a representative sample of the evidence surrounding the various allegations of domestic violence in the parties' relationship in their early years together prior to the child's birth.

Following the Birth of the Child in March 2007

[22] Father states that initially he was an involved partner with the mother, and an involved parent to the child. He was at the hospital when the child was born. He says that he purchased diapers for the child, as needed, and that he was a significant presence in the child's life.

[23] He says that his relationship with the mother began to deteriorate in 2008, attributing this to mother's wish to "attend parties" and the fact that she "traveled while I stayed at home carrying for Al.."

[24] The parties separated in October 2008 and until March 2009, the father says the relationship can best be described as "on and off again". In one email from the mother to the father in January 2009, mother wrote "we miss you much more . . . far more than ever b4".

[25] In March 2009, the mother travelled to Vancouver and left Al.. in the father's primary care for approximately two weeks. It appears that the maternal grandmother came into the home to assist the father with child care duties. Father's counsel cross-examined mother on why she would allow someone who had repeatedly raped her to take care of their young child for two weeks. Mother responded that this was why she asked her own mother to come into the apartment to assist the father with the child care responsibilities.

[26] After March 2009, the father's contact with the child became quite minimal and, except for one brief visit in March 2012, ceased entirely in March 2011, according to the father's evidence.

[27] As I noted above, following the separation, the mother did send emails to the father from time-to-time, expressing her love for him and stating that she missed him.

[28] And yet on other occasions, it is clear that the conflict continued between them. In one police occurrence report dated September 7, 2007, the police attended the mother's apartment and noted:

There is a long history of domestic incidents where police were called.

[29] In April 2009, the mother says that he appeared at her apartment, and when he saw that she had boxes packed and was getting ready to move, he accused her of trying to "sneak out" and take the child. He refused to leave and she ran into the bedroom and locked the door. She says he kicked down the door and jumped on top of her and tried to strangle her, all the while in the presence of the child who was screaming "mommy, mommy". She managed to telephone the police, whereupon he immediately left her apartment.

[30] When the police arrived she told them she was "shook up" and she provided a description, but the police were unable to find him because, according to the mother, he was "homeless".

[31] A report of this incident, prepared by the police was introduced into evidence by the father, who notes that the police report stated:

When police arrived on scene, Robert had already left. No assaults or threats were made.

[32] Following that incident, mother went to a woman's shelter where she remained for a few weeks.

[33] Mother says that it was "almost a year" after this "strangulation" incident before she had contact with him again; and yet, she still felt "it's important for a child to have a mother and a father".

[34] In her testimony, mother said that initially she wanted the father to be involved in the child's life because she believed he was capable of being a good parent. On occasion, she said, he seemed to "care". He did come with her to the child's doctor, once, for a check-up, but he didn't come into the doctor's room. Nevertheless, mother did state that "at least he made the effort to come in".

[35] While acknowledging these positives for father, mother also stated that he was not involved in medical care or schooling. He did not help to wash or put the child to bed. Nor did he help to feed the child, apart from a couple of occasions while she was in a high chair. (although mother had to be careful because he would try to give the child chicken to eat before she had teeth).

[36] She says she did agree, reluctantly, to allow the child to be in father's care when she went to Vancouver; however, this was prior to the "strangulation" incident (referred to above). And, as I previously noted, she says she took precautions by asking her own mother to help out.

[37] The maternal grandmother reported in January 2012 that the child had disclosed to her in December 2011 that the father had touched her private parts, stating "my daddy is evil because he poked a hole in my na-na". Following an investigation by the police and the children's aid society, the abuse disclosure could not be verified. No charges were laid.

[38] Father says that this story was concocted by the mother and the grandmother, in response to the father's initiation of this court proceeding, in an effort to cut him out of the child's life. He points to the fact that after the father obtained a temporary access order on December 30, 2011, mother raised these allegations of child abuse for the first time, and then succeeded in obtaining an order on June 1, 2012, setting aside father's access order.

[39] The children's aid society was involved at various times. It appears the first such involvement came in April 2007, when the police contacted the society to report that father had assaulted mother.

[40] The society attended mother's home and found it to be clean and appropriate. Mother was cooperative with the society. The society sent letters to the father in an attempt to speak with him, but they received no response from the father. The society concluded that there was a risk of emotional harm to the child due to her exposure to domestic violence in the home. This risk of harm was based on the society worker's investigation, as well as her knowledge of the history of the parties. The society eventually closed its file.

[41] A subsequent referral to the society occurred in September 2007. Again, this referral came directly from the police to the society, arising from concerns about domestic violence between the parties. The society again spoke with mother and had no concerns about her, or about her interaction with the child. Nor did the society have any concerns about the mother's care of the child, following receipt of information by the society from both the child's paediatrician and the mother's social worker.

[42] However, the society was again concerned about how the interaction between the parents themselves created the risk of emotional harm to the child. And in a letter to the father dated December 18, 2007, the society warned the father about the dangers of domestic violence, and the impact this can have on children. The society has no record of father responding to this letter; nor was the letter ever returned, undelivered, to the society.

[43] Father's counsel argues that all of these allegations of domestic violence have their genesis with mother, specifically, her complaints to the police, her complaints to the social worker, her complaints to the counsellor, and so on. If mother is not credible then perhaps all of these allegations about domestic violence are entirely unfounded, according to the father.

Mother Moves to Kingston in July 2012

[44] Mother says she moved from Toronto to Kingston because she was afraid for own safety as well as the child's safety. She says that she and her own mother had both been "stalked" by the father following a court appearance earlier in July 2012. This is denied by the father.

[45] Michelle Cunningham is a child and youth community counsellor at Interval House in Kingston. Following the mother's move to Kingston, she connected with Ms. Cunningham who was running a program designed for children who had witnessed violence in the home. This program was developed in conjunction with the London children's aid society and the police, and it is funded by the Province of Ontario.

[46] Mother enrolled the child in that program, which consists of one 90-minute session weekly, for a total program duration of eight weeks. Mother told Ms. Cunningham that she was enrolling the child because of the violent relationship between herself and the father. At some point during the program, the child made certain spontaneous disclosures to Ms. Cunningham. A voir dire was held on the admissibility of the child's statements, at the conclusion of which I ruled that the following statements were admissible:

• "it makes me scared when daddy is mean to mommy"
• "mommy makes me happy", and
• "dads are evil"

[47] I admitted these statements only for the purpose of the child's state of mind, not for the truth of their contents.

The Office of the Children's Lawyer

[48] On January 31, 2013 Justice Carole Curtis requested the appointment of the Office of the Children's Lawyer ("OCL"), to provide services pursuant to section 112 of the Courts of Justice Act. On April 30, 2013, the file was assigned to an OCL clinician, Deborah Connerty.

[49] Ms. Connerty obtained her Social Service Worker Diploma from Seneca College in 1992, her Bachelor of Social Work from Ryerson in 1997 and her Masters of Social Work from York University in 2005. She has worked actively in the social work field for 23 years.

[50] More recently, she has had her own private counselling practice since 2005, and has been a clinician with the OCL since 2011.

[51] She conducted an extensive investigation which culminated in a 37-page report which she released on October 7, 2013. In that report, she recommended, in part:

• Custody of the child should be with mother;
• Residency of the child should be with mother; and
• Father should not have access to the child.

[52] Father filed a formal objection to the OCL report.

[53] At trial, I gave both parties leave to cross-examine Ms. Connerty.

[54] Initially I conducted a voir dire as to the admissibility of certain statements which the child made to Ms. Connerty during the course of her meetings with the child. I excluded certain statements in their entirety. However, I did admit the following statements, for the purpose of the child's state of mind, not for the truth of the contents.

1. Stephanie knows my daddy hurt me in my private parts; she is evil in her own way;
2. Her stomach hurts when she talks about her daddy and that this means she is scared;
3. She had felt her stomach hurt before, and she felt it hurt when she talked about her dad;
4. When her father touched her private parts she was going to have a tummy ache;
5. Her father seemed nice only when they played soccer, but that he was only acting nice and that he is really evil, and just pretending to be nice;
6. She hates her father because he is evil; and
7. She did not want to see her father and that he had hurt her when she was young.

[55] Ms. Connerty said that she had to push the child a bit to get her to talk about the father. In respect of some of the things the child said, Ms. Connerty testified that it seemed "unusual" for a child to talk about certain incidents so long after their occurrence. Her statements about her father seemed to Ms. Connerty to be "highly contextualized", so that it was difficult to know how much was her own recollection and how much was from exposure to other persons. For example, the child once told Ms. Connerty that the mother had been given a flower when the child was in the mother's tummy. Obviously, this information could not have come from the child's own personal knowledge.

[56] Father's cross-examination of Ms. Connerty focused on undermining her investigative procedures, and thereby attempting to call into question her conclusions. For example, Ms. Connerty acknowledged in cross-examination that certain statements made by the child may have been influenced by others and, accordingly, the investigator cannot accurately conclude what her independent views and preferences are, given such influences. And father's suggestion was that if the child's views as set out in the foregoing statements are not independent, Ms. Connerty ought to have entirely discounted them and, accordingly, she ought not to have given them any weight in her recommendations.

[57] Ms. Connerty stated that while it was clear to her that much of what the child said was likely influenced by others, nevertheless every child's state of mind comes from a number of different sources, including influences from other people. All children are influenced, either by what they see or what they are told and, as Ms. Connerty said, "this is a whole child and you can't break it down into discrete pieces". In effect, outside influences or not, the child's state of mind reflects that child's reality. In other words, what is real for a child is subjective for that child. Ms. Connerty testified that it was "clearly uncomfortable and painful" for the child to talk about her father.

[58] Father's counsel pointed out that Ms. Connerty may not have followed every recommended procedure in her assessment, as set out in a document from the Ontario College of Social Workers entitled "Custody and Access Assessments" ("College document"), which became part of the evidence in this trial. Ms. Connerty acknowledged that while this may have been true with respect to certain procedures that she followed, much of the College document consists of guidelines only; and they are not to be followed slavishly, as each assessment depends on its own circumstances.

[59] For example, while the College recommends observation visits between a parent and a child, Ms. Connerty did not conduct an observation visit between father and the child. Ms. Connerty explained that while such visits can be helpful, in this case she was concerned about a number of things, including:

• The child voicing that her father had hurt her;
• The father hadn't addressed how he dealt with anger issues given the assault charges, including his prior assault of mother for which he was convicted; and
• Father's ongoing use of cocaine despite his assertion that he had stopped using illicit drugs.

[60] Ms. Connerty was also concerned that, given mother's expressed fear of father, she might flee if the father became involved in this process. In retrospect, Ms. Connerty did state that, given all these concerns, perhaps she could have added a piece in her report dealing with her rationale for proceeding in the way that she did. However, the failure to include this methodology statement does not, in itself, take away from the overall merits of the assessment, according to Ms. Connerty.

[61] Father's counsel challenged Ms. Connerty's observation that the relationship was "fraught with quite a lot of conflict and violence." He suggested that this information could only have come from mother, and if mother was unreliable, then Ms. Connerty's assertion would be incorrect. However, Ms. Connerty said she took into account the various police reports resulting from their attendances at the mother's apartment, as well as neighbours who repeatedly complained about the frequent arguments, which they were able to hear behind the closed doors of their own apartments nearby.

[62] Ms. Connerty also saw the police report, where the officer himself had witnessed the damaged door arising from mother's complaint that father had broken into her room – regardless whether there was an actual physical assault, as alleged by mother.

[63] And, of course, Ms. Connerty was aware that father had assaulted mother and that he had been convicted of this offence in 2006.

[64] Father's counsel was critical that the meetings were unbalanced, specifically, that Ms. Connerty had three meetings with mother and two meetings with father.

[65] Father's counsel also pointed out that Ms. Connerty may have exaggerated or been inaccurate when she

• Criticized father for not taking any responsibility for the breakdown in his relationships with 3 of the 5 mothers with whom he has had children; and
• Noted that father had been stopped by the police on 14 different occasions for suspicion of being a drug dealer when, in fact, although he was stopped by the police on a number of occasions, only some of these were drug-related.

[66] Father's counsel suggested that Ms. Connerty may have been biased against men in crafting her report in the manner she did. He pointed out that Ms. Connerty had been the Outreach Program Manager at Women's Habitat of Etobicoke from 2007 to 2011. However, Ms. Connerty noted that she has counselled male clients and has worked in a supported living residence for adult men, group homes for men and homeless youth of both genders.

[67] Ms. Connerty stated that while she may not have strictly followed all the College guidelines, where she did deviate, she made a conscious decision to do so. She also consulted with her own supervisor beforehand who agreed with her decisions.

[68] The OCL report sets out a lengthy criminal record for the father, with assaultive behaviour beginning in 1983, up to the last assault conviction in 2006, a timeline of about 23 years during which the various offences were committed. Ms. Connerty said that when she interviewed the father about that last assault conviction – the assault against the mother – he "definitely became agitated" when she asked him what he had done to resolve his own anger issues since then.

[69] In her interview with the father, Ms. Connerty said that he had not been forthcoming about his criminal record. Father had told her that had hadn't used drugs for 5 years; but she then subsequently learned that he had been recently charged with both marijuana and cocaine-related offences.

[70] In Ms. Connerty's discussion with father's doctor, the doctor stated that the father's issue with drugs is his biggest problem.

[71] Father had told Ms. Connerty about not having access to one of his older children and in doing so, Ms. Connerty said that father took no responsibility for the absence of his relationship with that child.

[72] Whether or not every detail in her report was entirely accurate, Ms. Connerty stated that both father's drug addiction – which appears to be ongoing – as well as his lengthy criminal history, played a large role in her report and in her recommendations. Again, she emphasized that not every complaint about domestic violence came from the mother alone, pointing to the police report dated May 14, 2005 wherein the neighbour said "that it is not unusual to hear both [parents] yelling and arguing in their apartment".

[73] In deciding on a no-access recommendation, Ms. Connerty also took into account her observations of the child. She stated that a child's views and preferences are only one factor, and the younger the child, the less weight she will give to those views and preferences.

[74] However, this child's state of mind – regardless of it's genesis – had become "subjectively true" for her. In other words, it was her reality. And because of that Ms. Connerty feared that reintroducing father into the child's life would expose her to risk of emotional harm.

[75] In her interviews with the mother, Ms. Connerty detected more fear than anger. While there may have been some anger moments, mother's overarching concern was one of safety for herself and the child. Ms. Connerty stated that the fear one parent has of the other parent is something which can negatively impact on the emotional wellbeing of a child, something which she felt was relevant to the facts of this case.

[76] Overall, despite some shortcomings that the father's counsel referred to in the OCL report, I find no basis for concluding either that Ms. Connerty was biased against the father, or that she over-relied on some background inaccuracies in the report itself, particularly when, in the context of a 37-page report, those inaccuracies are weighed against the overall substance of the report.

The Maternal Grandmother's Testimony

[77] There is no doubt that the grandmother loves her daughter and the child. However, her evidence was so replete with animus toward the father, as well as exaggeration and hyperbole, that I am unable to accord it any weight whatsoever.

[78] For example, at the outset of her evidence in chief, she stated in a purely gratuitous manner, that early on in the parties' relationship, the father may have stolen $350 from her home when he was there to visit with the mother.

[79] On another occasion she described the father simply as "evil".

[80] She also testified about a number of inappropriate behaviours by the father, without actually having witnessed them herself. She alleged there was a risk that the father might abduct the child, but was forced to acknowledge that she never witnessed a single act that would support such a concern.

[81] Apart from these few illustrative examples, I do not find it at all useful to summarize the entirety of her evidence in order to attempt the fruitless task of sorting out what parts of her evidence may be believable and what parts are not. For the purpose of my decision and the facts upon which I am able to rely, her testimony was of no assistance whatsoever.

Assessing Credibility

[82] In considering the testimony of both parents, I am forced to conclude that neither one of them was particularly believable in a number of respects. They both suffered from what I might characterize as a "credibility gap".

[83] The mother attempted to paint the father as little more than an overly predatory individual who engaged in this predatory behaviour on an almost non-stop basis.

[84] Father attempted to portray himself as an innocent parent who only wanted to settle down, be a parent and be there for his daughter but, sadly, was the innocent victim of the mother who only cared about partying and having her own way. He failed to acknowledge that he was in any way responsible for the conflict in the parties' relationship.

[85] Neither of these respective portrayals is supported by the evidence.

[86] Mother's assertions that she was victimized almost on a "weekly" basis are simply not supported by the evidence. Specifically I note that

• She continually told police officers who came to her apartment that the father had not hurt her.
• The medical evidence is sparse, vague and ambiguous.
• The numerous emails she wrote to the father telling him that she and the child missed him, and the affectionate manner in which she signed those emails, all belie her allegations or, at least the frequency of the allegations of rape and sexual assault. Referring to just one example, on December 7, 2009 she emailed him saying "thank you for Al.. the greatest gift of all. Kisses … I love you forevermore call me. I still want to marry you". Her explanation for that email was simply "I wasn't exactly myself". And it must be remembered that this came shortly on the heels of her application to the Criminal Injuries Compensation Board, and the hearing which followed, in which she made numerous and serious allegations of physical assaults inflicted on her by the father.
• If she was truly being raped on a weekly basis, it is difficult to understand why she would later leave her child alone with the father while she went to Vancouver for two weeks, notwithstanding her explanation that this was the reason she asked her mother to help out.

[87] Mother also gave a curious and incredible explanation for the withdrawal of one particular assault charge which she says she laid against the father in April 2007, the allegations of which she said she later recanted. She apparently telephoned the father's criminal lawyer and (according to her) read a script written out by the father, wherein he forced her to recant the allegations she had made in her statement to the police. The only problem with mother's version of the events is that the timing of her phone call to the lawyer was prior to the laying of the criminal charge.

[88] In cross-examination about her visit to the father's apartment in March 2012 – the last time father saw the child – the mother was asked whether she was afraid of the father while she was in the apartment. She replied: "for me to say I'm not afraid would be insane". In asserting this at trial, she directly contradicted her own earlier statement in which she had said

with [the other child's mother] present [in the father's apartment] I knew the Applicant [father] would not hurt me.

[89] Overall, the mother's credibility left something to be desired.

[90] For his part, the father himself has an equally distant relationship with the truth. In his affidavit evidence in chief, he said (as I noted at the outset), that mother was "very young and wanted to spend time with her friends, attend parties and travel", whereas the father preferred to "settle down and build a family". The family man image that the father attempts to portray is completely belied by the fact that while he was still in a relationship with the mother, he had another child with a different woman. And then, to compound that egregious breach of trust in his relationship with the mother, he actually complained in his testimony that mother went into a "jealous rage" when she found out about the impregnation. In fact, he blamed mother's reaction ("she can be vile and insulting") for the fact that his subsequent involvement in that other child's life turned out to be "less than minimal".

[91] As I stated earlier, father claimed that he was the primary parent while mother went out and partied during the child's very early life: "Robyn frequently went out with friends, attended parties and traveled while I stayed at home caring for Al.." He emphasized that he was in the child's life from "infancy up to five years"

[92] And yet, on cross-examination the father admitted that:

• Mother had to instruct him how to feed the child;
• He couldn't remember if he fed the child a bottle or baby food;
• He couldn't remember if the child was ever breastfed;
• He never bathed the child until she was old enough to go into an adult tub;
• He never researched schools or daycare;
• He never took the child to the doctor on his own;
• He never cared for the child when she was sick; and
• He couldn't recall any places where he says he purchased clothes or diapers for the child.

[93] As I noted earlier, in March 2012, the father had the last visit with the child at his apartment. Present at the time were the mother, the child, the other mother with whom the father had a child, and two other children. Father took three fairly brief cellphone videos during that visit. In his affidavit in chief he describes those videos as revealing great affection by the child toward him, including:

• Child blows him a kiss;
• The child singing "we want to see daddy, we want to see him every day";
• The child singing "we want to go out with daddy every day because we want to see him; and
• "we want daddy".

[94] However, the videos reveal nothing of the sort. In the first video, the father is heard to say "Al.. do you miss your daddy". In response, the child is actually non-verbal.

[95] In the second video, taken at the mall near father's apartment, the child can be seen on a rocking toy, but again, she is not verbal. It is the father's other child who is seen to be more engaged.

[96] The third video, taken back at the father's apartment, does show Al.. with a toy guitar in her hands. But the father is continuously prompting the children by telling them to say "we want to see our daddy every day"; again, he urges the children to say "we want to see daddy every day, just use those words". While the children do sing "Rudolph the red nose daddy, Al.. does not sing along with the father's other child(ren); and because of this, the father's other child complains "Al.. is not singing with me" and, again, "wait until Al.. sings with me."

[97] So while the videos do not reveal overt fear by the child, her demeanour is far from revealing the great affection, or desire to be with her father, which the father unequivocally states to be the case, in his affidavit evidence in chief. Despite father's constant importuning visited on the children, Al.. in fact remains quite reserved.

[98] Notwithstanding that the OCL report recommended counselling for the child, the father disagrees, asserting that the videos themselves reveal that the child has not been traumatized. The best that can be said about Al..'s demeanour, as revealed in those videos, is that she was near-emotionless. Even then, it must be emphasized that she was in her mother's presence at the time, the person who was responsible for her day-to-day care. At the very least, that would have afforded the child some measure of comfort and security and, likely, would have mitigated any fear or anxiety the child would have felt.

[99] In short, the videos do not disclose what the father says in his affidavit evidence in chief.

[100] In the father's Form 35.1 affidavit where he is required to list his criminal convictions, he omitted a number of those convictions. In his cross-examination, he attributed these omissions to the fact that "my memory is not 100% accurate.

[101] He was asked why he failed to be forthright to disclose additional criminal charges when he was charged in 2012 with drug trafficking. He responded: "I didn't feel the charges were going anywhere, so I didn't want to prejudice myself by announcing the charge". In fact, although the trafficking charge was dismissed, he was convicted of illegal possession of drugs arising from that same charge. In short, the father acknowledged having made a conscious decision to lie, in order to suit his own purposes in this litigation.

[102] Whereas the mother quite likely exaggerated the level and frequency of domestic violence, the father dismissed it in its entirety. Clearly the independent evidence of regular and continuous conflict is something the court cannot ignore. Yet the father failed to own up to any of this. In his detailed evidence-in-chief set out in his affidavit, not once does he take responsibility for any of the domestic conflict which occurred during the course of the parties' relationship. To the extent that he acknowledges they had verbal arguments, he blames these entirely on the mother. In light of all the evidence in this case, that position is not credible.

So Where Does the Truth Lie?

[103] Truth is generally best gleaned from objectively ascertainable facts, regardless of what a particular individual might say, particularly in a "he-said, she-said" contest.

[104] I have referred to some of the objectively ascertainable evidence earlier in these reasons. Nevertheless, I will repeat some of that evidence again – as well as other objectively ascertainable evidence – to explain why, given the totality of that evidence, I have concluded that, first, this was a relationship replete with domestic conflict and, second, the father was responsible for a considerable amount of that conflict.

[105] The police were regular visitors at the apartment of these parties during the course of the relationship. Not only was there frequent police contact regarding incidents between the parties themselves but, additionally, the police reports indicate that the father himself was often stopped and investigated by the police for one thing or another.

[106] Police occurrence reports ("P.O.R.'s") can often be very revealing about the behaviour of an individual, regardless of the laying of a criminal charge. For example, in Children's Aid Society of London and Middlesex v. K., Justice Grant Campbell stated, at paragraph 34:

The admissibility and use of the P.O.R.s may truly enable the court to view a more complete and more accurate picture as to what may be in the child's best interest. In the latter situation, the court would weigh the information contained in the P.O.R.s appropriately since its obligation toward the child is immediately triggered when it becomes aware of the existence of information that could reasonably pertain to uncovering what is in the child's best interest.

[107] The evidence in this case reveals numerous P.O.R.'s spread over a lengthy period of time, covering the years from prior to the parties' relationship, to the end of that relationship. Many of the reports pertain to the father himself, and many pertain to the parties while they were together.

[108] Behaviour – again, not necessarily the proof of criminal behaviour - can reasonably be ascertained from these kinds of reports. If there are just one or two P.O.R.'s, that may be an indication of nothing at all. But when there are many such reports, over a long period of time that can be very revealing to the court. And, in my view, the existence of these numerous P.O.R.'s is very telling in the circumstances of this case.

[109] It appears that from 1992 to 2013, there were approximately 60 police occurrence reports – mostly in connection with the father alone, that is, not connected to any disputes between the parties. A number of these occurrences were in connection with minor incidents, or "routine stops", but others were in connection with far more serious incidents – threatening, harassing, weapons, drugs, robbery.

[110] Father's criminal record appears to date back to 1979, when he was first convicted of two counts of theft. From there, his record is lengthy. A number of charges resulted in acquittals; a number of charges were withdrawn; a number of charges resulted in convictions.

[111] What is particularly telling about some of those convictions is that, in addition to drug-related matters, they include

• Indecent assault on a female
• Assault
• Criminal harassment
• Utter death threats
• Assault against the mother

[112] In his testimony, the father acknowledged that a 1996 conviction for criminal harassment originated from a complaint by "my other child's mom". He said "my son's mother laid false charges against me". He testified that he could not remember the name of his child's mother.

[113] Another charge for criminal harassment on July 19, 1995 is shown in his record as having been withdrawn. However, in his testimony, the father said that the complainant was "someone I was seeing" and that the charge was laid "rightfully so". Interestingly, in one of his few acknowledgments of wrong-doing, the father testified that although that charge was withdrawn, "I've come to terms that I was in the wrong".

[114] In November 1996, he was charged with sexual interference of a 9 or 10 year old child of a woman he was seeing at the time. That charge was dismissed because, as the father testified, the judge had a "problem" with the child's testimony.

[115] And, as I stated earlier, the father was convicted in 2006 of assaulting the mother herself.

[116] The father also has a history of drug-related incidents, including his most recent conviction in 2014.

[117] What all of this reveals is that the father has a demonstrated history of skirting around the edges of socially and criminally acceptable behaviour and, sometimes, piercing through those edges into flagrant criminal misconduct. When he was asked on cross-examination what steps he has taken to address his long-standing drug abuse problem, he responded simply that he hasn't been to treatment since that last conviction.

[118] The father's anger and his demonstrated inability to often regulate his behaviour is also well reflected in an email he sent to the mother on August 25, 2008, a portion of which I extract in the following [father's emphasis]:

[after complaining in the email about mother's own behaviour, he continues] GO FUCK YOURSELF BITCH because that's all you are and all you'll ever be. You never deserved a man like me and maybe that's why I fucked around on you in the first place. You have fucked around on me since and still bring up what I did before you fucked up. . . . as long as you remain the person you are you will always make my skin crawl. I resent you for what you did in front of Al.. the last 3 times. You are extremely disturbed YOU ARE A FAKE, A SLUT, AND A FUCKING LOOSER!

[119] The "family man" who just wanted to "settle down" and raise his child, is not the person who is reflected in the objectively ascertainable facts of this case. It is not the person who decided to impregnate another woman while he was still in a relationship with the mother.

[120] Nor is it the person who has had five different children with five different women.

[121] The father would have the court believe that the conflict which was evident throughout the parties' relationship was either minimal in nature, or solely the mother's fault. As to the latter, I wish to make it clear that there is reason to conclude from the evidence that, at various times during the course of their relationship, both parties were complicit in the conflict which took place.

[122] However, the fact of that conflict cannot be disputed. The objectively ascertainable evidence reveals neighbours complaining to the police about the constant loud arguing, so loud that it could be heard by those individuals inside their own apartments, and so loud that it warranted police intervention.

[123] The objectively ascertainable evidence also reveals anger and conflict that was so heated that, at least on one occasion, it resulted in the father breaking or damaging a door in the mother's apartment.

[124] Whether all the forcible confinements, sexual assaults and other assaults that were alleged by the mother actually occurred is not something this court can determine from the evidence. As I stated earlier, it is highly unlikely that they occurred to the extent complained of by mother. But that at least some of these occurred, appears highly likely in the context of all the evidence in this case.

[125] When mother and Al.. finally moved from Toronto to Kingston in July 2012, the court accepts the natural inference, to which mother testified, that she was trying to get away from the father.

[126] The OCL conducted a thorough investigation before releasing its report and recommendations in October 2013. As I noted earlier, father's counsel challenged many aspects of that investigation in an effort to undermine the conclusions reached by the clinical investigator, Ms. Connerty. While there may have been some weaknesses or even some relatively minor inaccuracies in the body of the report, it is the conclusion of this court that the report has much merit.

[127] That is not to say that simply because the OCL recommended no access for the father, that this court will accept such a recommendation as definitive. While the OCL is at liberty to make recommendations in its report, it is solely for this court to make the determination of what is in the best interests of the child. The OCL report is simply one piece of evidence which the court must weigh in its consideration of the dynamic of this family and, ultimately, what is in the child's best interests.

[128] All of that said, I do wish to refer to one piece of the report which, in my view, fits with the overall narrative in this case. Ms. Connerty stated [my emphasis]:

[mother's] own personal accounts and police reports show that she has moved from apartment to apartment as she feared being found. Having worked with [mother] she comes across as someone who does not trust and this at times could make it difficult to work with her. She was difficult to contact, appointments were scheduled at the last minute, and she required accommodation to do the interviews in Kingston, she was preoccupied with issues related to her and Al..'s safety. With the right amount of consistent communication she did participate fully in the investigation. Her behaviour was actually not that unusual for a woman who has experienced abuse and had negative experiences throughout her life with adults she trusted, and negative experiences with professionals who she has found unhelpful. In fact, in spite of her difficulty trusting, [mother] continues to reach out for help, and this aspect of her character shows a strong ability to be resilient.

[129] Again, while the court does not necessarily accept the extent of the "abuse" which Ms. Connerty refers to, as related to her by mother, the fact that there was abuse is something which this court concludes is borne out by the evidence.

[130] But what may be most troubling about this abuse, and the effect it has had on mother, is how it has impacted on what is in Al..'s best interests. Ms. Connerty states [my emphasis]:

Al.. has been exposed to [mother's] fears and preoccupations, she sees her mother as fearful. Her life has been unstable as she has had to move on numerous occasions. It is important that for Al.. the focus be on building stability and that she have strategies to cope. It is recommended that Al.. go to counselling to deal with any distortions she may currently have so that she can sort out her own personal life experiences and separate them from those of her mother.

[131] The father rejects the OCL conclusion that mother is fearful of him. He also rejects the OCL recommendation that the child attend counselling. His rejection of the latter recommendation is based solely on his belief that the aforementioned videos reveal that she has a strong connection to the father, something which I have rejected in my earlier discussion of those videos.

[132] Father states that he believes the child has been "coached" and that this coaching accounts for some of the statements which I have referred to earlier in these reasons. The father may indeed be correct that the child's expressed fears and discomfort emanate, to some extent, from the mother. Ms. Connerty stated as much when she said that the child had been "exposed" to her mother's "fears and preoccupations". Nevertheless, that has now become part of this child's reality, regardless of its origin.

[133] In his submissions, the father's counsel argued that the evidence of domestic conflict rests solely on mother's credibility. For the reasons I have discussed, the evidence compels me to reject that argument.

[134] Father's assertion that mother fabricated parts of her evidence, likely has merit. I have said as much earlier in my reasons. But that does not detract from the objectively ascertainable evidence which I have discussed in some detail. And it is in this objectively ascertainable evidence where the court ultimately finds the most helpful nuggets of truth.

The Law

[135] Father's counsel submitted a number of authorities which stand for the proposition that access to a parent is generally in a child's best interests; and access will not lightly be taken away by the court. As Justice Trousdale stated in Chartrand v. de Laat, 63 R.F.L. (6th) 196 (Ont. S.C.J.), at paragraph 112:

To deny access to a parent is a remedy of last resort. See Jafari v. Dadar, [1996] N.B.J. No. 387.

[136] And, continuing at paragraphs 113 and 114:

[113] Justice Blishen in Jennings v. Garrett, 5 R.F.L. (6th) 319 (Ont. S.C.J.), stated:

As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

[114] Justice Blishen went on to weigh and balance numerous factors in the context of the child's best interests including the following factors in coming to a determination whether access should be terminated:

(a) the maximum contact principle;

(b) the right of a child to know and have a relationship with each parent;

(c) a limitation of a consideration of parental conduct to that conduct which impacts on the child;

(d) the risk of harm: emotional, physical and sexual;

(e) the nature of the relationship between the parents and its impact on the child;

(f) the nature of the relationship and attachment between the access parent and the child; and

(g) the commitment of the access parent to the child.

[137] This case neatly sets out the importance of access, and the factors which a court might well consider in deciding whether or not to remove access from a parent.

[138] Father's counsel also submitted a number of authorities which stand for the proposition that an OCL report is simply one piece of evidence and must be considered very carefully by the court in deciding how much weight ought to be accorded to that report. See for example, Richardson v. Gardner, (1996) CarswellOnt 87 (O.C.J.) and H.F. v. K.L., [2003] O.J. No. 4669 (Ont. S.C.J.)

[139] Counsel also submitted authority for the principle that a child's views and preferences are not determinative of what is in the child's best interests, but only one factor for the court to consider. See Islam v. Rahman, 2005 CarswellOnt 1911 (Ont. S.C.J.)

[140] I agree with all of the principles stated in these cases. They are long-standing principles which the courts have adhered to in custody and access cases and, for the most part, they do not generate controversy in the case law in this area.

[141] However, the one case in particular which I conclude has significant applicability to the facts of this case is a decision of Justice Stanley B. Sherr in K. (M.) v. R.(T.), 2014 CarswellOnt 1401 (Ont. C.J.), a case which I intend to refer to at some length.

[142] This was a case about an abusive marriage between the parties, a case where the father absolutely denied ever having been violent. At paragraph 65, Justice Sherr stated [my emphasis]:

The mother testified that the children are doing well. They enjoy many activities. They are both doing excellently in school. Both children are healthy and very social. She worries that the reintroduction of the father will upset the children's safety, stability and security. The evidence supported that she has been an excellent mother, in very difficult circumstances for the children.

[143] I stop here to note that the evidence in the present case, from the third party sources, is that the mother is providing excellent care for Al.., and that after a number of moves in the past, Al.., has now found stability and is attending school regularly in Kingston.

[144] At paragraph 82, Justice Sherr continued [my emphasis]:

A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000 CarswellOnt 4889 (Ont. S.C.J.).

[145] Justice Sherr then referred to Jennings v. Garrett, supra, quoting Justice Blishen at paragraph 135 of her judgment, as setting out a number of "useful factors that have led courts to terminate access" [my emphasis]:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. History of violence; unpredictable, uncontrollable behaviour, alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of a relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access.

[146] I have chosen to emphasize certain portions from the above because I conclude they have applicability to the facts of this case.

[147] On the evidence, I conclude that the father's behaviours played a significant role in the creation of the mother and child's fear.

[148] I also conclude there has been a history of violent and unpredictable behaviour, some of which may have been witnessed by the child.

[149] As evidenced by the previously quoted email from the father, he has engaged in a denigration of the mother, through the use of foul and vulgar language. In my view, it does not matter that the child may not have seen that particular email, as the contents of that email combined with the conflict between the parents reveal an attitude of denigration strongly held by the father against the mother.

[150] There is no ongoing relationship between the father and the child. As I noted earlier, except for a brief visit at the father's apartment in March 2012, there has been no access since March 2011. And prior to that, between 2009 and 2011, the access was minimal and sporadic, according to the father's own evidence.

[151] As to the child's views and preferences, it is evident that she not only has no wish to have a relationship with her father, but the mere discussion of her father, and recollection of events in the past cause her to become upset and fearful.

[152] Justice Sherr noted the fact that the children in his case had lived in a stable home environment since their separation from their father. In speaking about the father and what he had to offer the children, Justice Sherr stated, at paragraph 87 [my emphasis]:

The father took no real responsibility for his actions and instead chose the path of denial. This informs the court that he is a poor candidate to change his behaviour towards the children.

[153] In the present case, there is no evidence to suggest that the leopard has changed his spots; and, because of that, this father is also a "poor candidate to change his behaviour" toward the mother. Why is this important? As Justice Sherr stated, a mother's stress and anxiety over the prospect of reintroducing the father into the family life, is a significant consideration. At paragraph 88, he stated [my emphasis]:

The mother has extreme anxiety about the prospect of the father seeing the children, even in a supervised setting. She does not trust him. . . . Even if the mother's safety concerns are a bit excessive her understandable anxiety and fear is the reality that the children must deal with. It does not serve the children's best interests to destabilize the mother by re-engaging her in any way with the father. She will undoubtedly suffer significant anxiety if an access order is made. The evidence indicates that the children are attuned to their mother's emotions. They would likely be adversely affected by the mother's anxiety and likely . . . suffer their own anxiety about the visits. The benefit of knowing the father does not justify this risk to the children.

[154] I find that the foregoing paragraph is highly applicable to the facts of this case. That the mother is anxious about the father, and that she fears him, is something which is borne out by the evidence. That she is very fearful of a reintroduction of the father into her life, and into the life of the child, again, is also supported by the evidence – even if her "safety concerns are a bit excessive".

[155] I analogize this with the "thin skull" rule in torts cases, specifically, that the offending party takes his victims as he finds them. Even where the victim may be unusually vulnerable, the offending party is still liable for the damage he inflicts on her.

[156] Similarly, in this case, even if the mother is unusually prone to stress and anxiety, even if she may have created in her own mind a not entirely justified basis for the extensive fear she now has of the father, nevertheless, I accept that this is her reality. And her reality trickles down onto the child and thereby becomes part of the child's reality. Accordingly, it makes no difference whether the child has been to some extent influenced by the mother, all of this has now been incorporated into the child's belief system and, subjectively, it is as much of the child's present reality as if she had witnessed or experienced the events herself.

[157] To destabilize the mother and the child by injecting the father back into their lives, particularly after such a long absence, would be of no benefit whatsoever to this child. Al.. has moved on; she has a life with her mother in Kingston, hours away from Toronto, and far from the location where all of the parental conflict took place.

[158] Referencing again Justice Sherr's statement that

Access is only to be ordered in circumstances where there will be a benefit to the child

the evidence in this case leads me to conclude otherwise, specifically, that ordering access would not only confer no benefit on Al.. but would more likely cause her emotional harm.

[159] As an aside, I wish to point out the following. When father's counsel began his submissions, I asked him how the logistics of the proposed supervised access would work, given that father lives in Toronto and mother lives in Kingston, where the child attends school during the week. The father's position, as stated by counsel, is that the mother could travel to Toronto on a bi-weekly basis so that he could exercise two hours of supervised access on the weekends. Alternatively, she could meet him half-way between Kingston and Toronto and he would then travel the rest of the way with the child to Toronto. In other words, it is the father's position that the child should effectively travel six hours, round trip, so that he could exercise two hours of visiting time. At no time did the father consider the more child-focused approach that, perhaps, he should be the one who travels to Kingston, where the child lives, so that the child would not have to be put through the extensive travel time he was suggesting. Although my decision in this case is not dependent on this point, I did find it very revealing that the father would take such a position.

[160] I have carefully considered all of the principles pertaining to access and the importance of maintaining or establishing a relationship between a child and her parent. I do not find it necessary to discuss most of the cases submitted by both counsel, as many of them stood for similar principles, principles to which I have previously referred. And some of the case law pertained to issues which, on the facts of this case, I have found not to be relevant.

[161] Based on the facts of this case, as I have found them, and applying those facts to the legal principles, I have concluded that not only would access not add anything beneficial to this child's life, but it would likely risk destabilizing her, thereby resulting in significant emotional harm.

Conclusion

[162] In his amended application, the father sought:

1. Sole custody of the child;
2. In the alternative, access "in accordance with a regular schedule";
3. Direct information from third party service providers for the child; and
4. A non-removal order from the Province of Ontario.

[163] At the outset of trial, father amended his position by seeking bi-weekly supervised access for two hours per visit, rather than custody or "regular" access.

[164] In his opening statement, he also sought various other types of relief, which are generally dependent upon the court ordering that he would become reintegrated into the life of the child. Apart from the father's difficulty that those various requests for relief were not pleaded, I am dismissing all of those claims for relief given that I am making a no-access order with the intention of permanently severing his connection to the child.

[165] In her Answer/Claim, the mother sought:

1. Sole custody;
2. No access or, in the alternative supervised access;
3. A restraining order; and
4. Child support.

[166] I advised the parties at the outset that because the assignment court judge had set five days for trial – and it was clear to me that far more trial time would be required just to deal with the access issue - there would be no ability to address the issue of child support and that this issue would have to be dealt with at a later time, if at all. In fact, the only issues which the parties identified as outstanding when they appeared before the assignment court judge were custody and access. Neither party seemed to the assignment court judge to be much interested in the child support issue.

[167] At the outset of trial, the father abandoned his claim for custody, conceding the mother's claim for sole custody.

[168] It appears that there has been no contact between the parties for a number of years. Accordingly, at this point the court does not see the need to impose a restraining order against the father. The mother's claim for a restraining order is dismissed. However, I dismiss that claim subject to the following comments.

[169] I caution the father to refrain from communicating with the mother, unless she specifically invites such communication. And I caution the mother, now that there is to be no contact between the father and Al.., that there should be no need for her to initiate contact with the father, absent extreme and exigent circumstances. Both parents need to get on with their lives, independent of each other.

[170] I make the following additional orders on a final basis:

1. Sole custody to mother;
2. No access to father;
3. Father's claim for third party information pertaining to the child is dismissed;
4. Father's claim for a non-removal order is dismissed;
5. Mother shall have the right to apply for passports and any government or official documents pertaining to the child, all without the father's consent; and
6. Mother may travel with the child outside Canada without the father's consent.

[171] Returning to the issue of child support, it was clear from the evidence that the father has long relied on social assistance, or other unconventional means, by which to support himself. In my view, it would little benefit the mother to return to court to pursue the issue of child support. While that claim does remain outstanding, I would discourage the mother from proceeding with it.

[172] I say this for two reasons. First, even if the court were to ultimately impute some income to the father, it is highly unlikely that any such order would be enforceable, as a practical matter.

[173] Second, and more important, in my almost 13 years on the bench I have dealt with many high-conflict custody/access cases. However, this case may be very close to the top (or the bottom, depending on one's perspective) in terms of the level of conflict and its potential for risk of serious emotional harm to a child. It would serve no purpose – and indeed could result in further stress, anxiety and even emotional harm – to bring the parties back into court and to sit across the table from each other. They would both be much better off to remain out of each other's lives from this point forward. And the main beneficiary of that permanent separation would be the child herself.

[174] Should the mother decide that she wishes to pursue support, despite my recommendation to the contrary, and in the event she requires a Legal Aid certificate to do so, I would urge Legal Aid to decline to issue a certificate for this purpose, for the reasons I have set out in this judgment. And if mother's counsel seeks authority from Legal Aid to pursue child support, I expect counsel to bring these reasons to the attention of Legal Aid.

[175] And, primarily for reasons of unenforceability, I would discourage the mother from seeking her costs of this trial. Nevertheless, if she chooses to do so she may file brief submissions, not to exceed three pages, within 30 days of the release of this decision. The father's response shall be filed within 15 days thereafter, also not to exceed three pages.

[176] Finally, I want to thank both counsel for their hard work and presentation in this most difficult of cases, including their willingness to remain in court until 5:00 p.m. on Christmas Eve in order to complete the trial.

Justice Robert J. Spence

January 26, 2015