Court File and Parties

Court File No.: Toronto D10165/08 Date: 2012 September 19 Ontario Court of Justice

Between: Melanie Avakian Applicant

— And —

Leonidas Natiotis Respondent

Before: Justice P. J. Jones

Heard on: August 16 – 19 and August 24, 2011; January 9, 11, 12, 2012; June 4 – 6, 2012 and July 31, 2012

Reasons for Judgment released on: September 19, 2012

Counsel: Ms. Donna Guidolin for the Applicant Mr. Peter Carlisi for the Respondent

JONES, P. J. J.:

Introduction

[1] This is an application brought by Ms. Melanie Avakian (the mother) for custody of Emily Natiotis (Emily) born […], 2001, no access to Leonidas Natiotis (the father), child support, a restraining order, annual disclosure, permission to travel and obtain passports and other identity documents without the permission of the father, and costs.

[2] The Respondent Leonidas Natiotis (the father) has cross applied for custody of Emily, or in the alternative reasonable and generous access to the child, child support, and costs.

[3] At present, the following temporary orders made by Cohen, J. on January 8, 2010 and February, 10, 2010 are in place:

1. Emily is in the temporary custody of her mother
2. The father has no access to the Emily. The no access order allowed for one visit to be supervised by the Children's Lawyer for purposes of conducting an investigation.
3. The father is also subject to a temporary order restraining him from molesting, harassing or annoying the mother or the child and from attending at the residence, place of education or employment of the applicant or the child.
4. The father was also ordered to pay temporary child support in the amount of $104 per month on an imputed income of $14,000. per annum which I understand is not being paid.

[4] Other than a single meeting with Emily at the Children's Lawyer's Office on May 3, 2010 and at his father's funeral in November, 2008, the father has not seen Emily since May 12, 2008 when a temporary without prejudice restraining order and a no access order was put in place by Paulseth, J.

Background and Findings of Fact

[5] The parties are the natural parents of Emily Natiotis. Emily is the only child of the Respondent father and is the elder child of the two children born to the Applicant mother.

[6] The parties met on the Internet at a time when the father was living in Canada and the mother was living in Russia. They married in Greece on September 9, 1999 after a brief courtship. The mother was 24 years of age at the time of the marriage and the father was just shy of 40 years old. This was a first marriage for both parties.

[7] The mother moved to Canada as a landed immigrant in October, 2000. When she arrived, the Respondent was living with his elderly Greek parents, and she moved into that household and they all lived together as a family. After Emily was born, the families split into two households, never far away from one another, and the grandparents assisted with the care of Emily.

[8] Although the Respondent indicated in his testimony that he felt that this was a happy marriage right up to the time of separation, the Applicant told a different story. According to the Applicant, she was very disappointed with the Respondent because he seemed very dependent on his parents and he did not seem to be very ambitious. According to her, he never seemed to be able to become self supporting. At present, the Respondent has three sources of income, namely, he works part time for an accounting firm at minimum wage, which is topped up by Ontario Works and he lives in the same household as his 92 year old mother who is responsible for many of the household bills. In contrast, the Applicant is quite ambitious and hard working. Since arriving in Canada, she has attended English as a Second Language classes (ESL classes) and is now proficient in English. As well, she has qualified as a registered nurse, the same profession she had pursued in Russia and is currently working at a Bloor Street spa assisting a plastic surgeon with his procedures.

[9] The parties separated in February, 2007. No doubt the mother had been unhappy in the marriage for some time, however, I am satisfied that the separation was precipitated by the fact that the mother had met Mr. Mendez. In January 2007, just prior to the separation, the mother went on a vacation with Mr. Mendez to the Bahamas and when she returned she and Emily moved out of the matrimonial residence to their own apartment. Within a few months, Emily and the mother were living part time, then full time with Mr. Mendez.

[10] Each party has a different version of what happened at the time of separation.

[11] According to the father, he testified that he was not upset about the mother's decision to leave. It was his evidence that he told his wife that she was not welcome at the home because she "might have a venereal disease" after her trip to the Bahamas with her boyfriend, and that she had made her choice and should go live with her "lover boy". This type of disrespectful and inappropriate language punctuated the trial and, as will be seen, provided insight into father's character. When asked about the police being called by his wife at the time of separation, he agreed they had been called, and that he had been charged with assault, but only because the police would not listen to him -- he denied assaulting his wife and testified that there was no hitting, just a lot of yelling.

[12] It was his evidence, that after they separated, the Applicant would make excuses to come to the house to pick up items and that, when she came to the house, they would have oral sex until he told her to "go back to her little boy" because, according to him, "when the lemon is squeezed, you just throw it away."

[13] According to the mother, the Respondent was very upset when she told him she was leaving and that he spat on her, began calling her names such as "bitch, and whore" and that he slapped her in the face twice and pushed her. (It is not contested that the mother phoned the police and the father was charged with assault which was resolved by way of peace bond). The mother denied having any sexual relations with the father after the separation and testified that it was very difficult for her to interact with the father because he was so angry with her and abusive. She testified that he would make racial comments about Mr. Mendez who is black, and would call him a "black monkey, pimp, nigger" and would frequently insult her using sexually explicit epithets which would cause her to be in a constant state of upset and nervousness.

[14] For the first year after separation, the parties arranged access without a court order. The child lived with the mother and the father enjoyed access. The mother would drop the child at school and either the father or his parents would pick up the child from school; the mother would pick up the child from the father's home when she finished work at 7 p.m. On certain occasions the child spent the night at the father's home. I am unclear how often overnight access occurred. Suffice it is to say, I am satisfied that the father and his parents were significantly involved in Emily's life at this time.

[15] It is clear on the evidence that the relationship between the parents after separation was acrimonious, becoming more so as time passed. The access arrangement came to an end after an incident which occurred on or about February 14, 2008, when the mother called the police alleging that the father would not return the child to her care. The mother testified that the father had just learned that she was pregnant with Mr. Mendez's child and that he was refusing to bring Emily downstairs and was yelling that she was a whore and that she was pregnant with a "black monkey". The father said that he did not return Emily because Emily did not want to go home with the mother. When the police arrived, he admitted to saying to the police, "Are you retarded? Are you her errand Boys?" because he felt that the police were not listening to his side of the story. The police asked who had custody and, when they found out there was no court order they encouraged the mother to take the matter to court to have the matter determined. The mother commenced a custody application with a first appearance date of April 3, 2008.

[16] Pending the return of the court application and after this incident in February, the mother denied further access to the father. A number of events occurred after access was denied.

1. On April 10, 11, 2008, the father phoned the Children's Aid Society and made allegations that Mr. Mendez was sexually and physically abusing his daughter.
2. On April 13, 2008, the father phoned the mother's house and spoke to Emily. Emily became very upset because she said that her father had told her that he was coming to take her away. The father admitted in his testimony that he did tell Emily that he knew where she lived and that he would come and take her away but that what he meant was that he would go to court and obtain a custody order.
3. Denied access, the father began to go to the school bus stop in the morning in the hope of seeing Emily when she was dropped off there by Mr. Mendez. According to the father, his "beautiful white Greek daughter" would yell papa and jump into his arms. According to Mr. Mendez, Emily did not look happy to see her father and would be anxious when she saw her dad at the bus stop.
4. An incident documented by a police report occurred May 9, 2008 at the child's school. Mr. Mendez testified that he had begun driving the child directly to school after a number of incidents occurred at the bus stop between him and the father. He testified that on May 9, 2008, the father approached the car and demanded to speak to his "beautiful white daughter/princess" and called him a "black monkey." In an attempt to avoid trouble, Mr. Mendez did not open the car door. When the father approached the locked car he spit on the bumper, and Emily began to cry. Mr. Mendez told the court that he called the police because he did not want to get out of the car as the father looked aggressive. The father denied spitting on the car and said that Emily did want to see him and that he had come to the school to deliver cookies to her. He admitted becoming very angry with the police because he did not think they were listening to him and he acknowledged that he yelled, "Long live Osama" at the police.
5. After this incident, the mother attended court to seek emergency relief, and on May 12, 2008, Paulseth, J. granted, on an ex parte basis, custody to the mother, no access to the father and a restraining order. An order on the same terms has been continued to this date.

[17] The Children's Aid Society investigated the allegations made by the father in April, 2008. The Children's Aid Society did not verify the abuse allegation made by the father.

[18] The father testified that he reported to the police these allegations of sexual and physical abuse perpetrated by Mr. Mendez on his daughter. None of the police reports filed as business records contain any such allegations and no charges were laid against Mr. Mendez with respect to these allegations.

[19] The Children's Lawyer prepared a report and recommended that the mother have custody and that the father have supervised access at a supervised access centre and that he engage in counselling to deal with his "unresolved anger about the separation." At trial, Ms. Barlas, the Clinical Investigator who prepared the report, changed her recommendation to no access citing the father's continuing hostility towards Emily's mother and Mr. Mendez and his refusal to seek counselling in the preceding two years.

Competing Plans of Care

Father's Plan

[20] The father proposes that Emily come to live with him. He told the court that his mother has some savings, and that if he got custody, she would either buy a house or a condominium suitable for Emily. He testified that he would either live with his 92 year old mother or with his girl friend who will be coming to Canada in the near future. According to the father his girlfriend is currently living in the United States and has yet to meet Emily.

[21] His 92 year old mother testified that she loves Emily and would "cook and clean and do the laundry" for Emily if they would be able to be together again. However, she did admit that she is having some difficulties getting around and a home care worker comes to her apartment to do the cleaning and laundry for her.

[22] As to how the respondent would support Emily, the father told the court that he is working part time and receives a top up from welfare. At present he and his mother share an apartment and living expenses.

[23] He said that he hoped to retrain as a bus driver in future, but I saw no evidence that he had taken any real steps in that direction, and in fact was told by him that he currently had a suspended license because of unpaid fines. I doubted whether this plan to retrain was likely to occur any time soon or that his financial or living situation would change in the near future.

Mother's Plan

[24] The mother and Mr. Mendez live in a four bedroom semi-detached home with a large backyard in the Eglinton and Bayview area. They live there with Emily and their daughter Serena. They are both employed. The mother is employed as a registered nurse. Mr. Mendez, who is a Certified Financial Analyst, is employed as a Senior Vice President, Finance, for an international company and is currently earning $247,000. per annum. They have a nanny to assist with child care. Emily is described as a happy little girl, well settled in the home, and doing well at school with dreams of becoming a doctor. Both Ms Barlas, Clinical Investigator at the Children's Lawyer's Office, and Ms Duncan from the Children's Aid Society, met with this family and were satisfied that the mother and Mr. Mendez presented as loving parents and the children were happy, healthy and content.

Custody and Access Issue

[25] It is the father's position that Emily is at risk of harm in the mother's home because Mr. Mendez has physically and sexually assaulted his daughter in the past and, as there has been no intervention, he has no reason to believe that that behaviour has stopped. He pointed to the following hearsay evidence in support of his contention that Emily has been the subject of abuse and asked the court to admit such evidence for the truth of the facts asserted therein;

1. Out of court statements made by his daughter to him relating incidents of physical and sexual abuse perpetrated by Mr. Mendez
2. The report taken by John Issacs, Children's Aid Intake Worker, on February 26, 2008 from Emily's school. This report was filed with the Children's Aid Society's records as a business record. The report documents a telephone referral from an unnamed teacher who reported that an unidentified mother had reported to the school that Emily had said the words "sex" and there was reference to "dad" and that the report mentioned that, "he gets to see dad's penis whenever he wants" to her daughter (who is also unidentified). Teacher is reported to have overheard comment as well.
3. Statement made by Emily to Ms. Duncan that "sometimes mom and Chris fight and break glass." This comment also appears in the Children's Aid records and was repeated by Ms. Duncan at trial.

Discussion on the Admissibility of Child's Out of Court Statements for the Truth of the Facts Asserted

1. Child's Out of Court Statement Tendered by the Father Relating to Sexual and Physical Abuse

[26] The Respondent father testified that Emily had told him about incidents of physical and sexual abuse she had suffered at the hands of Mr. Mendez. He asked the court to admit the statements of the child for the truth of the facts asserted. Although many statements were sought to be admitted in the materials filed by the Respondent, I have restricted the list to those statements actually referred to in the evidence which arguably relate to physical and sexual abuse. I have identified the following statements:

• "on a number of occasions Chris bathed me when mom was at work"
• "Chris and mom would fight a lot of times and throw glass at each other and I would hide under the bed"
• "One time in summer 2007, Chris changed my clothes into my bathing suit because we were going swimming"
• Emily woke up crying in December 2007 and said "don't touch me. Papa, Chris has been touching my bum and bit me and mommy did not help me."
• Two days before Valentine's Day, 2008, Emily stated that, "Chris bites me and pinches me"
• "Do you want to turn me into a boy like Chris"
• "Mom and Chris throw things and I would be scared and hide under the bed"
• "She and her mom were sitting on a sofa and her mother took her hand and led her into the bathroom where Chris was taking a shower and her mother started taking pictures of Chris who was naked and began to jump up and down like a monkey. She said that she saw his penis".

[27] Out of court statements tendered for their truth are presumptively inadmissible unless they fall within one of the recognized exceptions to the hearsay rule or can be admitted under the principled approach to the admission of hearsay statements. As the statements sought to be admitted by the father do not fall within one of the recognized exceptions to the hearsay rule, for the statements to be admitted, I must be satisfied they pass the two pronged test for admissibility as set out in R. v. Khan, [1990] 2 S.C.R. 531. McLaughlin, S.C.J. in Khan supra at pages 546-547 made reference to the test as follows:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary'. The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances that could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanor, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances and are best left to the trial judge.

[28] The parties agreed that the first prong of the test had been satisfied. Neither party required psychological evidence on the issue of necessity. The child's evidence related to comments made to the father four or so years ago when the child was six or seven years old. As this is a family case (non criminal non child welfare file), I am satisfied that the agreement of the parties in the circumstances of this high conflict matrimonial case is sufficient to satisfy the test of reasonable necessity. Perkins, J. in C. (S.E.) v. P.(G)., [2003] O.J. No. 2744 at para. 32 spoke to the further traumatizing of young children in custody and access cases if they were required to testify as follows:

It would be ironic in the extreme on a custody and access issue, where the only factor is what is in the best interests of the child, if the litigation process were used so as to cause harm to the child for the ostensible purpose of ascertaining her wishes or even shedding light on her best interests.

[29] The approach I have adopted in this case is the same approach as followed by Harper, J. in Ward v. Swan, 95 O.R.(3d) 475 para 13 where he wrote,

(13) In the case before me, all counsel have agreed that these children have been the subject of chronic and high conflict and [page 479] that it would be further traumatizing to each of the children to be required to give testimony in this case. In this case, I agree with counsel's position and I find that the necessity requirement for the out of court statements has been met.

[30] The question of the reliability of the statements is more problematic. Since the father is seeking the admissibility of the statements, the onus is on him to prove that they are sufficiently reliable before such statements may be admitted for their truth. In high conflict matrimonial cases where one party is seeking to discredit the other party on the basis of statements made by the child to them where such statements were purportedly made without any other witnesses or any other corroboration, the task of establishing reliability is particularly difficult. Here, the mother disputes that the child ever made such statements to the father.

[31] The court must determine whether the statements are sufficiently reliable to be admitted for their truth.

[32] In proving reliability only first hand hearsay should be admitted and then only after the court is satisfied that the statements have been accurately and objectively reported and there is an absence of factors that would undermine the reliability of the children's statements. See Children's Aid Society of Metropolitan Toronto v. M.(R.), [1992] O.J. No. 1097 (C.J.).

[33] In cases such as this one, the reliability of the person reporting the child's statements is also a factor in assessing threshold reliability. In Children's Aid Society of Metropolitan Toronto v. M. (R.) [1992] O.J. No. 1097 on page 3, I quoted Professor Rollie Thompson on the issue of assessing the reliability of the in court witness who is reporting the child's out of court statements. His "rule of preference" in categorizing the persons reporting the child's out of court statements recognizes the very real concern of a court that the informant might be misquoting or fabricating the evidence of young children, either because of a failure by that witness to properly understand or document such statements, or because the informant has an interest in furthering one party's case by manufacturing evidence or by intentionally misquoting evidence where such evidence could not be tested through cross examination. In M. R. supra 2, he stated the following:

Professor D.A. (Rollie) Thompson of Dalhousie Law School presented a paper entitled "Children Should be Heard, But Not Seen. Children's Evidence in Protection Proceedings" at the National Family Law Program in July, 1990. Professor Thompson provided a "rule of preference" for assessing the reliability of in-court witnesses, in declining order of priority. His list was headed with independent professionals, non-specialized professionals trained in the necessity of accurate recordings such as social workers, psychologists, doctors, nurses, police officers, followed by independent lay witnesses with the last category being lay witnesses known to, or related to, a litigant.

[34] Unfortunately for the father, there are factors at play in this case that cause me to question whether the statements were accurately and objectively reported, and in fact, whether the statements were ever even made. The father's hostility towards the mother and her new partner is so extreme that it would be impossible for me to conclude on the balance of probabilities that the statements of the child tendered by the father were actually made, or if made, were accurately and objectively reported.

[35] In deciding to admit out of court statements for the truth of the facts asserted, I must be satisfied that the person reporting the statement is reliable, and I cannot do so in this case, as I have serious reservations about the father's reliability. I have included quotes from his evidence, which, in my opinion, demonstrate clearly his biased perspective on the case, his use of sexual language to insult and demean the Applicant, and his lack of self control. Although I am reluctant to include the quotes given their offensive nature, I am satisfied that without doing so, it would be difficult to explain why I have rejected this evidence at this preliminary stage.

[36] At trial, the Respondent demonstrated no control over his animus towards the mother and her new partner. He was angry, crude, and vengeful in his comments about them, while on the witness stand and while under oath. He referred to the mother as a "prostitute", and her house as a "bordello". He made reference to her sexual organs and sexual attractiveness or lack thereof at various points in the evidence (on one occasion he said that the applicant was so attractive that she would give a corpse an "erection", and at another time, he talked about her "baggy vagina" in a very offensive and insulting manner.) When he spoke of Mr. Mendez, his comments were intemperate in the extreme. He called Mr. Mendez a "diddler" who should be in the "slammer" where he would be "exterminated": he called him a "pervert": a "pedophile": a "monkey", to name but a few of the epithets hurled at Mr. Mendez. Notwithstanding comments from the bench, he continued to refer to Mr. Mendez as "lover boy", or as his wife's new love interest", always in a disrespectful tone of voice. From the witness stand, he looked at Mr. Mendez and said that, "He knows there is a plan. First bathing suit, then pinching, showing penis, then maybe penetration." He said that, "Mr. Mendez is a step by step sexual predator." He would repeat his accusation that Mr. Mendez was a pervert, sexual predator, and that his "beautiful white Greek daughter" was not his sexual plaything over and over again at the trial in an unrelenting manner.

[37] I had other concerns which weighed against the admission of the hearsay evidence proffered by the Respondent. The Respondent kept no written record of these statements. At various times in his evidence, he changed the words purportedly spoken by the child or altered the location where the words were supposedly said. When the father's evidence was interrupted to accommodate certain professional witnesses and his evidence started up again, I noted that he began to incorporate evidence that he heard during the break into his own evidence. For example, at one point he expressed outrage that he had not been informed about the child reporting to Ms. Duncan that her mother and Chris would "fight and break glass". By the end of his testimony, he told the court that Emily had told him that his mother and Chris "would fight and throw glass" and that she would hide under her bed".

[38] In all the circumstance, I find that the child's statements as reported by the father do not meet the test of threshold reliability and will not be admitted for their truth.

2. The Report of John Issacs, Children's Aid Society Intake, February 26, 2008

[39] When Ms. Duncan testified, she came with a copy of the Children's Aid file. Contained within the file was a "People Profile and Referral Information" form printed March 4, 2008. On consent, this report was filed as a business record and marked Exhibit 5 at the trial.

[40] The referral began with a call from an unnamed teacher who reported the following information: I quote,

"A few weeks ago a parent approached the teacher with concerns. Emily said something to daughter of parent and this daughter reported to her mom. The parent paraphrased what was said. Child mentioned the word sex and there was a reference to dad. Caller couldn't remember what the exact statement.

Today class was on a field trip. While waiting for tour guide, child told other student that he gets to see his dad's penis whenever he wants. Teacher overheard this comment.

Teacher says that child may make up stories. Child has said that dad is jail.

School has had minor issues with child, copying off others, flipped a child the finger, school addressed mom about this and mom was surprised.

School is unsure of the dad situation.

One day a dark skin gentleman came to pick up the child from school. Child referred to man as dad.

School was surprised to see a dark skin dad since dad's name is Greek.

Strengths

Mom is involved and caring

Child behaves well at school, in French Emersion Program

It is uncertain if child is making comments in regards to current dad or if there was a prior dad."

[41] The father testified that he had not been told about this referral.

[42] Once he became aware of this information, the father began to quote this report, especially the words, "see dad's penis whenever he wants" as confirmation that his daughter is being abused in the mother's home. The fact that the Society did not pursue this matter further as they took the position that there was insufficient information to indicate that there was a child protection concern is seen by the father as proof that his daughter is not being protected or taken seriously by the Society.

[43] Counsel for the father submitted that because the recording was admitted without objection as a business record, I should admit the contents of the report, including the hearsay component of the report, for the truth of the facts asserted therein. In other words, the report should be admitted not only to confirm that a complaint was taken on a certain date by a named worker, but to admit the details of the complaint for the truth of the contents.

[44] In specified circumstances, section 35 of the Evidence Act, R.S.O. 1990, c. E-23 as amended) permits the admission into evidence of otherwise inadmissible evidence contained therein as prima facie proof of the facts asserted therein. The rationale behind this exception may be stated quite simply: the circumstances of the making of certain types of reports provide sufficient assurances of reliability.

[45] I indicated to father's counsel that simply because hearsay statements were contained in a business record did not mean all hearsay statements contained in a business record are admissible for the truth of the facts asserted.

[46] There are limitations. In order for a statement to be admissible under this exception, the following criteria must be met. (See Catholic Children's Aid Society of Toronto v. J.L., [2003] O.J. No. 1722 para 10). I have considered the criteria on the facts of this case.

1. The record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record.
2. The record must be made contemporaneously with the transaction recorded or within a reasonable time thereafter.
3. Only records of "facts" can be admitted — "an act, transaction, occurrence or event".
4. The person who makes the record must be acting under a business duty and the informant must be acting under a business duty, or the informant's statements must be otherwise admissible under the hearsay rule of exception.

[47] In this regard, I rely on the comments made by Griffths, J in Setak Computer Service Corporation Ltd. v. Burroughs Busters Machines Ltd, (1977), 15 O.R. (2d) 750, which is the leading case on the admissibility of business records and the interpretation of section 35 of the Evidence Act. Griffiths, J in Setak v. Computer Service Corporation Ltd v. Burroughs Busters Machines Ltd. supra pages 762-763 [0.R.] wrote,

The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that the recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe section 36(now 35) as admitting hearsay evidence of any third party would make the section an almost limitless drag-net for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy.

[48] In this case, the Children's Aid intake worker had a duty to make the report and record the comments made by the informant. The informant was not named and the person calling was repeating third hand hearsay from another unnamed source. Section 35 of the Evidence Act does not "open the floodgates to permit the admission of otherwise inadmissible evidence simply because it has been recorded in a business record". See Catholic Children's Aid Society of Toronto v. J.L., [2003] O.J. No. 1722 para 11.

[49] As I have found that the statements sought to be admitted do not fall within the business records exception to the hearsay rule, nor is there any suggestion that such statements fall within any other head of admissibility, I have considered whether the statements are admissible under the principled approach to the admission of hearsay evidence. Given that necessity has been conceded as it relates to the out of court statements of Emily, reasonable reliability needs to be established.

[50] In this case, I must be satisfied that there is sufficient indicia of reliability to warrant the admission into evidence of the statements for their truth. Traditionally the court holds a voir dire on this issue and the court hears evidence from those persons who heard the statements and they are cross examined on the circumstances surrounding the making of the statements. Here, no such evidence was adduced. In fact, not even the names of the persons who overheard the statements were provided. The Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para 35 quoting from R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, has made it clear that the court plays an important gatekeeping role in determining what evidence should be admitted. In para 35 the court wrote,

The trial judge's role as gatekeeper is to determine whether this concern is sufficiently overcome in the circumstances of the case to justify receiving the evidence. This criterion is usually met by showing that sufficient trust can be put in the truth and accuracy of the statements the ultimate trier of fact will be in a position to sufficiently assess their worth. The two ways of demonstrating threshold reliability are not mutually exclusive.

[51] Threshold reliability has not been made out with respect to these statements. Second hand or third hand hearsay of statements made in unknown or unknowable circumstances does not afford the court a sufficient basis for evaluating the truth of the statements.

[52] The hearsay rule evolved because of a concern about decisions being made on untested, possibly unreliable evidence such as would be the case here if this evidence was admitted and acted upon. As Dickson J. stated in R. v. Abbey, [1982] 2 S.C.R.24 at 41

The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements of facts presented.

3. Child's Statement to Ms. Duncan That Sometimes Mom and Chris Fight and Throw Glass

[53] Ms. Duncan met with the Avakian/Mendez family to investigate the complaints made by the father in April, 2008. During the investigation, Ms. Duncan met alone with Emily at her school on April 16, 2008 and recorded the following conversation in her notes, "Chris and mom used to fight, break glass and yell and they would send Emily to her room so that she can't hear." As necessity has been conceded, and as I am satisfied that this statement meets the test of threshold reliability I have admitted this statement for the truth of the facts asserted. I admitted the statement for its truth because the statement was recorded by an impartial, professionally trained social worker tasked with the duty of conducting an abuse investigation. The statement was recorded in the worker's notes at the time the statement was made or shortly thereafter, the note was dated and I was advised that there had been no changes or alterations to the note. At trial she was cross examined as to the circumstances surrounding the making of the statement and I was satisfied that the statement had been accurately and objectively reported.

[54] As well, the mother corroborated this statement by the child. The mother agreed that on occasion she and Mr. Mendez would argue about the situation with the father, and when that would happen she would send Emily to her room so that she would not overhear what was being said. She acknowledged that there had been one time that she recalled when she was very upset and broke some glasses in the dishwasher by accident, but that they never threw glass or other objects at one another. The Society accepted this explanation and did not pursue this comment any further.

Out of Court Statements of the Child Sought to be Admitted as Part of Mother's Case

[55] Like the father, the mother sought to have certain out of court statements made by the child admitted for the truth of the facts asserted. Unlike the father, she did not seek to have statements made to her admitted for the truth. All the statements she identified were made to either Marcia Griffiths Duncan on April 16, 2008 or to Laura Barlas, on April 25, 2010. The statements sought to be admitted were first hand hearsay and such statements were recorded at or near the time they were made by Ms Duncan who is employed by the Children's Aid Society and Ms Barlas who is employed as a clinical investigator by the Children's Lawyer. I am satisfied that they all meet the test of threshold reliability. I found these statements by the child relevant on the issues of custody and access.

Interview with Marcia Griffith, as set out in her notes of April 16, 2008

1. Likes new dad "Chris" better; Likes "Christopher better because he doesn't scare me";

2. "my ex-dad, Leonidas, scares me a lot because one day he said he would pick me up one day—he said he was spying on me and mom—he told me three weeks ago";

3. Chris is "black"; Child said, "I want to talk to my white daughter"; "My dad doesn't like black people because he thinks black people are destroying Greeks";

4. When she gets into trouble at home she gets "punished" no games, no movies, "mom would spank on butt", Chris never hit her, she can't recall telling dad (ex-dad) this;

5. Child denies telling dad that Chris bit her.

Interview with Laura Barlas, as set out in her notes of April 25, 2010

1. What do you like about mom? "caring", "helps with homework"

2. What don't you like about mom? "nothing. Miss her sometimes when she is gone."

3. Like about Chris? "Pretty much nice". "Loves me".

4. What don't you like about Chris? "Nothing just miss him when he comes home late"

5. What don't you like about dad? "he was being mean to Serena because she's mixed. He was saying rude thing." –called her black-one day on way to school he spat on Chris' car and Chris had to call the police."

6. What made dad mad? "-Chris didn't do anything"

7. How do you get along with mom? "-close to each other, get along well, never mean to each other."

8. How do you get along with Chris? "get along pretty well with Chris" "Chris has never done anything to make me feel uncomfortable".

9. Did he (dad) ever do anything that made you feel uncomfortable? "-called her family and harassed us" "on, I know where you live. I am going to come get Emily he said to mom and Emily. Didn't really like when he said those things. Afraid"

10. How does Chris and your dad get along? "dad used to be rude to Chris, when Chris didn't do anything. I didn't like it."

11. When mad at you (mom) what does she do? "tells her not to do what she is doing "-uses her words, not her body" "mom has never done anything that has scared her before"

12. What does he (Chris) do when he's angry with you? "nothing. Talks to her" "he's never scared her."

13. Has dad ever done anything that scared you? "When he called us. Scared he was going to take me away".

14. Did mom or Chris give you any messages to give me today? "mom just told her to answer questions and if she doesn't know answer, tell worker."

Custody

[56] As I am not satisfied that there is any admissible evidence before me that Emily has been, or is currently being, sexually or physically abused, and in fact, there is a great deal of evidence that she is happy and well cared for in her mother's home, I am making an order for final sole custody in favour of the mother. Her plan of care is far superior to the plan of care of the father and is in the child's best interest.

Access

[57] The mother is seeking an order for no access to the father.

[58] In my experience, it is an unusual case where access to a parent is denied outright. As a matter of law and common sense, the right of the child to know his or her parents and the right of the parents to enjoy access to the child is a fundamental human right and is generally seen as beneficial to the child and in the child's best interest. However, there are cases in which access is denied.

[59] Rogers. J. in Jobb v. Parrish, [2001] O.J. No. 5171 was faced with a similar application to deny access to a father. In that case, on quite extreme facts, she denied access because she found, as a fact, that if access were granted to the father, his uncontrolled and abusive behaviour towards the mother would jeopardize the stable, loving home of the child.

[60] The facts here are also extreme and quite similar.

[61] In this case, if access is granted, and the father's out of control and aggressive behaviour is allowed to go unchecked, I find that the stability of Emily's home will be put at risk, as will Emily's emotional health.

[62] Emily has already been affected by the father's angry, acting out behaviour as evidenced by her out of court statements to Ms. Barlas. Emily told Ms. Barlas that she witnessed her father spitting on Mr. Mendez's car and yelling racial slurs at him which made her "scared" and "uncomfortable". Similarly, the mother has been affected by the father's behaviour. Before access was terminated, the mother testified that she was always nervous and upset because of the verbal abuse she was subject to every time she had contact with the father. As for Mr. Mendez, who has been the focus of the father's sexual abuse allegations, it is not hard to imagine how the crude and disrespectful comments made by the father to Mr. Mendez and to the court are affecting him.

[63] Furthermore, the father is obsessed with the notion that Emily is being sexually and physically abused in her home by Mr. Mendez and he is prepared to go to great lengths to prove it. For example, when he met with Emily at the Children's Lawyer's Office he kept repeating the phrase, "What else do you want to tell me?" At court the father acknowledged that what he hoped would happen was that Emily would start telling Ms Barlas about the physical and sexual abuse she was experiencing in the mother's home. I have no reason to believe the father's behaviour will change in the future.

[64] Indeed, convinced that Emily was not being subjected to physical and sexual abuse in her mother's home, and faced with the father's refusal to accept the opinion of the Children's Aid and the Children's Lawyer that no abuse was occurring, Ms Barlas recommended that there be no access at this time because the father is not able to move beyond his anger. It was her opinion that, if even supervised access were granted to the father, he would continue to harass the mother and question the child about sexual abuse. Ms Barlas recommended that access not be reinstated unless and until the father engages in counselling and, through counselling, makes significant gains in moving past his anger around separation.

[65] In all the circumstances, it is not in Emily's best interests to have access to her father, even in a supervised access facility. Access at this time would be upsetting to Emily and would disrupt her stable home because her father will not control, or cannot control, his anger against his former wife and her new partner.

Child Support

[66] I find that the father has no current ability to pay, and, because of his difficult personality, he is unlikely in the foreseeable future to become gainfully employed, even at minimum wage.

[67] I understand that the father has made no payments on the $104. per month order made by Cohen, J. on January 8, 2010. When the order was made, Cohen J. imputed a modest income of $14,000.00 per annum. In hindsight, I am satisfied that he has not made even this level of income. He is employed part time and is receiving welfare to subsidize his wages. He is also sharing expenses with his 92 year old mother. At 53 years old, with his job history, his future chances of becoming self supporting are poor.

[68] It is not in anyone's interest to have the father and the mother connected by a largely symbolic support order. If I continue to impute even a modest income to the father, I have little doubt that the order will remain in default. So long as there is a support order in default, there remains the possibility that enforcement proceedings will be instituted which will only encourage further motions to change.

[69] As I am not satisfied that the father has any ability to pay child support at this time and that he has not made the annual income imputed to him by Cohen J. since the order was made, I am ordering that any arrears which have accrued under the temporary order be rescinded.

Restraining Order

[70] I am satisfied that there are grounds to make a final restraining order under section 35 of the Children's Law Reform Act and under section 46 of the Family Law Act. I am satisfied that in the past the father physically assaulted the mother and threatened to remove Emily from her care. From comments made at trial, I have no doubt that the Respondent was verbally abusive to the mother in the past as this behaviour continued on the witness stand. Although the original temporary order was made in May, 2008 the father continues to express uncontrollable and uncontrolled anger towards the mother and Mr. Mendez which does not appear to be dissipating as time goes on. For example, as recently as August, 2011, the Respondent was seen by the Applicant walking by her place of work. In December, 2011, he delivered a birthday card to his daughter when his mother visited with Emily and in that note talked about how "they" want us to be separate forever, but "don't worry they will not succeed."

[71] Accordingly, as I am satisfied that the Applicant has reasonable grounds to fear for her safety and the safety of her child in her lawful custody, I make a final restraining order against the Respondent on the following terms:

The Respondent shall be restrained from contacting or communicating with the Applicant or the child Emily, either directly or indirectly, or from coming within 150 metres of the Applicant's home, the Applicant's place of work, and the child's school.

Travel Documents, Other Identity Documents and Travel Permission

[72] As the father has no access to the child, and there is no communication between the parties, it is in the child's best interest that her custodial parent be in a position to manage these matters for the child.

[73] On a final basis, the Applicant may obtain the child's passport or renewal thereof, travel documents and identity documents, the child may travel outside the jurisdiction with the mother or such other person she may designate without the consent of the Respondent.

Orders

[74] For the above reasons, I make the following orders:

1. The Applicant, Melanie Avakian, shall have final custody of the child, Emily Natiotis, born […], 2001.

2. The Respondent, Leonidas Natiotis, shall have no access to the child.

3. No further order for access or custody shall be brought by the Respondent without leave of the court. Any application for leave shall be brought on notice to the Applicant and the Children's Lawyer and in support for his request for leave he shall provide proof that he has attended for counselling and has made significant gains in moving past his anger arising from the separation and in accepting responsibility for his part in the breakdown of the marriage.

4. There shall be no order for child support as I find that the Respondent has no current ability to pay.

5. Arrears of child support shall be rescinded in their entirety.

6. Support Deduction Order to issue.

7. The Respondent shall be restrained from directly or indirectly contacting or communicating with the Applicant or the child Emily who is in the lawful custody of the Applicant, or from coming within 150 meters of the Applicant's home, her place of work, or the child's school.

8. The Applicant may obtain the child's passport or renewal thereof, travel documents, identity documents, and the child may travel outside the jurisdiction with the mother or such other person she may designate without the consent of the Respondent.

Costs

[75] In the event that the Applicant seeks costs, she shall serve and file a factum in support of a claim for costs (no more than 5 pages) with an attached bill of costs within 30 days after receipt of this judgment. If such a request for costs is made, the Respondent shall have 30 days to serve and file a response and the Applicant shall have a further 15 days to reply.

Released: September 19, 2012

Signed: Justice P. J. Jones