Court File and Parties

Ontario Court of Justice

Date: 2016-03-15

Court File No.: Halton 325/07

Between:

Terry Frances Beatty, Applicant

— and —

David Paul Sluski, Respondent

Before: Justice Marvin Kurz

Heard on: March 4, 2016

Reasons for Judgment released on: March 15, 2016

Representation:

• Terry Beatty: on her own behalf
• David Sluski: on his own behalf

KURZ J.:

Introduction

[1] This matter came before me on March 4, 2016 pursuant to my endorsement of February 8, 2016. My endorsement of that date stated:

The issue of supervised access between the children and the two oldest children of Mr. Sluski was to be reviewed on October 22, 2015. However the review never occurred. No time was allocated and no materials were filed to allow me to deal with the issue when the third party disclosure motion was argued. On consent, I adjourn the issue of whether access between all four children should take place at a supervised access centre over to March 4, 2015 at 9:00 a.m.

I request that the CAS workers who supervised the visits, Ms. Brenda Smith, Ms. Katherine Bennett and Ms. Lynda Dikken, report by affidavit on their observations of the visits. Since Ms. Bennett and Ms. Dikken observed the same visit, I am content to obtain a report from one of them. The affidavit of Ms. Bennett will include the notes of her interviews with Melissa before and after the supervised visit.

[2] I should note, as Ms. Beatty pointed out, that O'Connell J. did review the issue of sibling access. On November 2, 2015 she ordered a further access visit for Mr. Sluski, the parties' two children, Melissa Sluski-Beatty, born December 30, 2008 ("Melissa"), and James Beatty Sluski, born July 19, 2005 ("James") (collectively "the children"), and Mr. Sluski's two eldest daughters (whom I refer to in this and my previous endorsement in this case as "N.S." and "T.S."). In this decision I refer to such visits as "sibling access".

[3] O'Connell J. based her decision on the success of a sibling access visit that took place on October 18, 2015. The visit ordered by O'Connell J. took place over two hours on December 21, 2015. It was supervised by the Halton C.A.S. ("HCAS").

[4] This matter is now before me to consider the issue of continuing sibling access. I have received the affidavits of HCAS workers, Brenda Smith and Katherine Bennett, as requested in my February 8, 2016 endorsement. Those affidavits describe the visits of October 18 and December 21, 2015, as well as the response of Melissa and James to those visits.

[5] In addition, Ms. Beatty has brought an extensive motion returnable today, seeking varied relief, as follows:

1. An Order that Justice Starr become seized of this file and all issues, specifically including access.

2. In the event that a restraining order is not granted on February 4/16, that a restraining order be issued from the family court preventing any and all contact between [NS] and Melissa and James outside of any third party court ordered supervised access still yet to be determined.

3. An order that access for James and Melissa exercised with the Respondent take place at a supervised access center.

4. An order that access between James, Melissa and [TS] start immediately at a supervised access center.

5. An order that the Halton Children's Aid provide a full copy of their files in their possession from 2003 to–date, specifically relating to Ms. Beatty and any children living with her during those times whose information is contained within "her" file, be prepared and provided unredacted, or redacted and initialized, specifically redacting contact information within 15 days, to the Applicant.

6. An order that any review of the Halton Children's Aid file be held at the Applicant's home, during a time when the children are not present, specifically with either Kathie Bennett or Lynda Dikkens, CAS employees. In the alternative, any file reviews are to be held at the Milton CAS office location.

7. An order that the Halton Children's Aid have no contact, aside from the above paragraph, with the minors, specifically, James, Melissa and Patrick, or the Applicant unless it is to notify the Applicant of any concerns which have been newly reported. With special consideration that James pooped his pants on the bus the way home after a CAS visit from a worker, the Applicant has since refused permission for the CAS workers to attend the school to interview the children there. In the event that CAS ignores the previous distress their visit caused, they should seek to interview the children at the school before this motion had been heard, the Applicant will be requesting direction from the court regarding custodial interference issues.

8. An order that Volumes one through nine of our court file be sealed, only allowing access to the Court, the Respondent and the Applicant, and that Volume ten is to be redacted and initialized. I further request that all forthcoming documentation be ordered to be initialized to protect the children's identity.

9. The Applicant, in front of Justice Starr, will be seeking directions for a determination of Charter of Rights violations specifically regarding the release of the Halton Children's Aid file as being "refused/ restricted/opposed" because she does not have counsel violates Section 15 of the Charter, in addition to considering the Court's obligation to protect my children from the risk of harm and the risk of emotional harm as set out within this Charter.

10. In front of Justice Starr, the Applicant will see direction for a Summary Judgement and be requesting times set down for this to be heard.

11. Any other orders as the court or consultation with counsel may recommend.

12. I am further requesting a hearing date be scheduled to address child support and extraordinary expenses.

Procedural Issues

[6] Although Ms. Beatty's affidavit of service shows that she sent her notice of motion, supporting affidavit and other documents to Mr. Sluski by UPS courier, he states that he did not receive them. There is no receipt to show that Mr. Sluski signed for the documents.

[7] Mr. Sluski indicated a willingness to proceed notwithstanding the fact that he had not seen the notice of motion. I offered Mr. Sluski the opportunity to consult with duty counsel before making that election. After doing so, he stated that he was willing to proceed with the argument based on the oral submissions of Ms. Beatty. He also relies on the affidavits of Ms. Smith and Ms. Bennett and the McMaster Child Advocacy and Assessment Programme ("CAAP") report cited in my previous endorsement in this case.

[8] In the reasons that follow, I consider the sibling access issue that I adjourned for argument on March 4, 2016. I also consider Ms. Beatty's motion. Since Ms. Beatty's notice of motion refers to the sibling access issue, I will follow the order of relief requested in that document.

Request 1: That Justice Starr Become Seized of This File

[9] Ms. Beatty requests an order that Justice Starr now become seized with this case despite the fact that I am its case managing judge. I have taken over this role from O'Connell J. since she was transferred to another court. In hearing Ms. Beatty's argument, I understand that this is essentially a request that I recuse myself from this case.

[10] Ms. Beatty explained that she believes that I decided her previous motion incorrectly. Therefore she wishes another judge to take over management of this file prior to trial. She anticipates more activity in this case before it goes to trial. She served Mr. Sluski with a contempt motion just as he was coming in to court for the argument of this motion. Somehow she scheduled it before Justice Starr, even though Justice Starr is not the case managing judge for this proceeding.

[11] I note that Ms. Beatty previously and unsuccessfully moved to have O'Connell J. recuse herself and to have a s.112 clinical investigation report of the Office of the Children's Lawyer set aside. Both requests were dismissed on October 23, 2014. Ms. Beatty has also sued the HCAS because of her view that its investigation of her sexual abuse allegation, which did not substantiate her claims, was negligent. Although self-represented, Ms. Beatty is a tenacious litigant.

[12] In essence Ms. Beatty is now engaged in the highly dubious process of judge shopping. She is seeking to cherry pick her judge in order to find one congenial to her perspective of this case. As Moldaver J., then of the Ontario Superior Court of Justice, once wrote: judge shopping is "… a concept both foreign to and unamicable with the most basic precepts of our system of justice."

[13] Moldaver J. then added the following comment, which illustrates the impropriety of Ms. Beatty's request.

Under our constitutional and legislative arrangements, it is the responsibility of the judiciary, not the parties, to determine the allocation of judicial work and the assignment of individual judicial officers to individual cases. The practices and procedures adopted to promote efficiency within the administration of justice will only be subject to attack if they can be shown to be abusive or unamicable to the rights afforded to informants and/or accused under the Criminal Code.

[14] There is no evidence before me to find that my assignment as case managing judge of this case is either abusive or in breach of Ms. Beatty's rights. If I erred in my February 8, 2016 endorsement, Ms. Beatty can exercise her appeal rights.

[15] Our court has adopted a process of case management to best utilize its resources. It does so in order to best meet the primary objective of the Family Law Rules, "to deal with cases justly."

[16] Justice Starr is scheduled to be the trial judge for this matter. It is urgent that this case proceed to trial as soon as possible. However if Starr J. is called upon to case manage the case as well, she could be excluded from conducting the trial. That in turn would further delay this matter as the court seeks an out of town or supernumerary judge to conduct the trial. It would be both an abuse of process, and contrary to the primary objective of the Family Law Rules to allow Ms. Beatty the right to choose her own judge. This request is dismissed.

Request 2: Restraining Order Preventing Contact Between N.S. and the Children

[17] No restraining order was granted on February 4, 2016. In fact there was no court proceeding on that date. I assume that Ms. Beatty misidentified the March 4, 2016 motion date. Ms. Beatty did say during argument that she had been seeking a restraining order to keep NS away from Melissa. But she is now withdrawing that request in favour of one for no sibling access until trial.

[18] Ms. Beatty's oral argument on this point was somewhat circular. She stated that she is willing to agree to sibling access in a supervised access centre. Any sibling access must be supervised by the HCAS. But Ms. Beatty added that such access must wait until Melissa and James have worked through some unspecified counselling issues. In other words, it should be indefinitely denied.

[19] I explain Ms. Beatty's rationale and comment on the available evidence in my February 8, 2016 endorsement, where I state:

[7] More apposite to this motion, Ms. Beatty raised another allegation of sexual misconduct. She claims that the father's oldest child, whom I will call NS, sexually abused or behaved in a sexually inappropriate manner towards Melissa. Ms. Beatty adds that James and a third child, Patrick, who is not subject to this proceeding, has been affected by this alleged behavior.

[8] The Society investigated the claims but did not substantiate them. The family was sent to the McMaster Children's Hospital Child Advocacy and Assessment Program ("CAAP") for a "child maltreatment assessment". In its report of July 13, 2015, CAAP reported that "Melissa had not disclosed any information to CAAP to support exposure to sexual maltreatment." However there was evidence that NS had touched Melissa on the bum and that the child had noted this behavior.

[9] CAAP formed the opinion that Melissa's previous disclosure of sexually inappropriate behavior at the hands of her step-sibling was the result of suggestion or leading questions by her mother and maternal grandmother. The CAAP report stated:

It is CAAP's opinion that Melissa's understanding of [NS]'s behaviors towards her has been influenced by the responses of her adult caregivers, particularly Ms. Beatty's and the maternal grandmother's responses and their belief that Melissa was sexually abuse [sic]

[10] While discounting the sexual abuse allegation, the CAAP report did raise a serious concern. It stated that the children "…had been exposed to maltreatment, specifically neglect and emotional harm, which has impacted on their functioning." It also supported the relationship between the children and their half-sisters.

[11] Ms. Beatty does not accept these findings and recommendations. She states that they differ from what she was orally advised by CAAP. She has a recording of her disclosure meeting with CAAP, which she plans to play at the trial.

Evidence from CAS Workers

[20] The affidavits of Ms. Smith and Ms. Bennett are of great assistance. In her detailed affidavit of February 25, 2016, Ms. Smith stated that the October 18, 2015 visit that she supervised in accord with O'Connell J's order, "… went very well."

[21] When told by Ms. Smith that the visit had gone very well and asked whether she would be willing to allow another to take place at an access centre, Ms. Beatty discounted the favourable nature of the visit. She added, in Ms. Smith's words, "…that her hope was that it [this case] would 'go to trial.'"

[22] Ms. Bennett had previously worked with this family. In October, 2015, she was tasked by the HCAS with introducing the children and parents to Ms. Smith, who would supervise the October 18, 2015 visit. She did so on October 15, 2015.

[23] Ms. Bennett then met with Melissa and James after the October 15, 2015 visit. On October 20, 2015, Melissa told Ms. Bennett that she didn't feel scared at the visit. She wished to see TS again. She "kind of" wanted to see NS, and explained that "kind of" means yes.

[24] James stated that the visit was "good". He stated that he wished to see NS and TS again and that he did not feel that he needed a supervisor to be present. When asked whether he felt that Melissa needed the presence of a supervisor, James responded in the affirmative. His rationale was "just because." James added that there was no "sexual harassment". He was unable to explain the meaning of that term or how he learned it.

[25] Ms. Bennett supervised the December 21, 2015 visit ordered by O'Connell J. on November 12, 2015. Ms. Bennett's description of the visit shows that there was great comfort, smiling, laughter and affection between all four siblings. Ms. Bennett reported nothing of concern. There was no indication that either Melissa or James felt any discomfort with either NS or TS. When Mr. Sluski took a photo of all four siblings, Melissa went to sit on TS's lap. She later did so again and asked TS to tickle her. The visit ended with Melissa giving each of NS, TS, and Mr. Sluski a hug.

[26] On the way home from the visit, James was quiet. He explained that he was okay, but that he just wanted to "… stay and play with [NS] and [TS]". Melissa said that she had fun and that she "… always has fun with [NS] and [TS]."

[27] Judging from the two HCAS affidavits, Mr. Sluski showed good parental control of the four children during the two supervised sibling access visits.

Analysis of Ms. Beatty's Position

[28] Despite the clear success of the two supervised sibling access visits, Ms. Beatty asks me to essentially prohibit further sibling access visits. She argues that it would not be safe to allow them to continue, even on a supervised basis. She reiterates her allegation that Melissa was sexually abused by NS. Yet she offers no new evidence of that alleged abuse.

[29] Justice O'Connell has twice ordered sibling access to maintain their relationship. Mr. Sluski was present for both visits. They were supervised by and reported upon by two experienced HCAS social workers. The workers' evidence strongly favours the continuation of the visits.

[30] In response to all of that, Ms. Beatty claims that Ms. Smith and Ms. Bennett unfairly judged the visits. She claims, without reference to any evidence, that the children reacted better to the access visits because they felt secure in the presence of the CAS workers. Nothing that the CAS workers say in their affidavits confirms this view.

[31] Ms. Beatty continues by attempting again to diminish the value of the CAAP report. She says that its finding, that Melissa had not disclosed to it any information to support exposure to sexual maltreatment, should be ignored. That is because, she argues, Melissa did not speak openly to CAAP about the sexual abuse issue. But the absence of evidence is not, in itself, evidence. It is certainly not proof that NS abused Melissa. Quite the contrary; there is simply no credible independent evidence that NS sexually abused Melissa.

[32] Ms. Beatty adds that CAAP did not find that Melissa was coached. Of course, as I stated in my earlier endorsement, it did find that the child had been "influenced" by the responses of Ms. Beatty and her mother. For Melissa the difference between the two terms, coached and influenced, is more semantic than concrete. Whether Ms. Beatty and her mother intended to coach the child in order to persuade her, or whether they influenced her without realizing that they were doing so, the result is the same. As I set out below, that influence was a matter of real concern to CAAP.

Surreptitious Recording and Transcript Evidence

[33] Ms. Beatty also supplies me with what she claims to be a transcript of a disclosure meeting with CAAP; one that she says contradicts the CAAP report. This is the alleged transcription (and a recording on a data stick) of a conversation that Ms. Beatty surreptitiously recorded during a disclosure meeting with CAAP. She says that it was professionally transcribed from her secret recording. But I see no evidence of the involvement of a professional transcriber. The alleged transcript is not signed. It makes no reference to a transcription service. It contains no statement that it is an accurate transcript of Ms. Beatty's recording.

[34] Of greater concern, surreptitious recordings must be discouraged in family law cases. The reasons for that stance were articulated by Sherr J. in Hamid v. Hamid. There Sherr J stated at par 11-12:

[11] … Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

[12] I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685:

[5] There is a wide scope for potential abuse in this practice.

[6] The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge. The suspicious and disturbing circumstances surrounding the production of this "evidence" convince me that it should be struck in its entirety and should not be before the court.

[35] Sherr J. added that the court retains some discretion to determine whether the probative value of such evidence outweighs the strong policy factors set out above.

[36] I have reviewed the transcript found as Exhibit "A" to Ms. Beatty's affidavit of July 20, 2015. Even assuming its accuracy (which I would not necessarily do) I found nothing that would justify its admission into evidence in light of the comments of Sherr J. in Hamid. In particular I found nothing in that alleged transcript that contradicts the CAAP report.

[37] I note that I asked Ms. Beatty for transcript references for the alleged contradictions. She was unable to provide them to me during her argument, even though she was the one claiming the existence of contradictions. She stated that she did not have a copy of the transcript with her. I granted her leave to go home, review her transcript and return later in the day to provide me with a note setting out her citations.

[38] Instead, Ms. Beatty provided me with a different transcript; one somewhat similar to, but clearly not identical to one attached to her affidavit. She circled certain passages of that transcript for my review. That transcript was not part of an affidavit or a court proceeding. For that reason it has no evidentiary foundation. Since I can only consider properly sworn, served and filed evidence, I ignore that second transcript.

Legal Framework for Sibling Access

[39] On this motion for temporary access, I do not have the benefit of all of the evidence that will be available at a full trial. But the absence of that fuller evidentiary record does not entitle me to abandon my role in determining what temporary access, if any, is currently in Melissa's best interests. In making that decision I have to rely on the best evidence available to me today.

[40] In making decisions about access between siblings (albeit including their father), which is the form of access that Ms. Beatty is attempting to eliminate, I must consider the following factors:

1. access is the right of the child and is determined based on that child's best interests;

2. the factors to be relied upon to determine those best interests are found in s. 24(2) of the Children's Law Reform Act;

3. sibling access must be in the best interests of all of the children involved;

[41] Here I have not been presented with credible evidence that NS sexually abused Melissa. Two independent organizations dedicated to promoting the interests of children, HCAS and CAAP, found no credible evidence of such abuse.

[42] Notwithstanding the lack of credible evidence, Ms. Beatty insists that NS sexually abused Melissa. Ms. Beatty's method of attempting to elicit evidence of the alleged abuse from Melissa, through suggestion and leading questions, has led CAAP to conclude that Melissa's statements have been "contaminated".

[43] Even if Ms. Beatty did not deliberately coach the child to lie, she does have what CAAP calls a "fixed belief" in the abuse. Her rigid position seems to be impervious to the influence of any evidence that contradicts it. In fact Ms. Beatty has unrelentingly used the court system to attack Mr. Sluski and the HCAS for opposing her views.

[44] Mr. Sluski is not asking for unsupervised sibling access. For now, he is asking for the access to take place twice per month at a supervised access centre. That is a modest request in light of the evidence. There is no reason to believe that Melissa and James will be anything but safe with their siblings in such a supervised setting. It is in their best interests to maintain a strong bond with their siblings. They clearly love them and want to see them. They should not be deprived of that relationship because of their mother's unwillingness or inability to consider any view but her own.

[45] I note that CAAP supports the continuation of the relationship between the siblings. It writes:

…CAAP supports that [sic] the relationship between James and Melissa and their older half-sisters [NS] and [TS] is also important and should be maintained.

[46] CAAP also calls for the supervision of access between the siblings, but only because of the "…ongoing animosity and distrust that exists between the parents and the maternal family members' fixed negative beliefs about the paternal family members, and in particular [NS]…"

[47] CAAP suggests that access should occur with some regularity but not interfere with any of the children's other activities. I have been provided with no evidence of any children's activities that would be interfered with by regular sibling access.

[48] Accordingly, on a temporary basis, the father and siblings are entitled to regular sibling access visits. They shall take place every second weekend for two hours at a time at a supervised access centre agreed upon by the parties. Those visits shall not take place on the alternate weekends that Mr. Sluski has his unsupervised access to Melissa and James. The supervised sibling access visits shall take place at times and dates, as agreed upon by the parties, that the access centre is available. If the parties are unable to reach an agreement in that regard, I will deal with the logistics on March 17, 2016, the date that Ms. Beatty's motion for contempt is before me.

Request 3: Supervised Access Between Mr. Sluski and the Children

[49] Ms. Beatty claims that access between Mr. Sluski, Melissa and James must now be supervised at a supervised access centre. Yet she offers no evidence of a material change in circumstances since O'Connell J. granted Mr. Sluski unsupervised weekend access to the children on October 23, 2014.

[50] Ms. Beatty instead points to the CAAP report. But CAAP wrote that "…Melissa and James' relationship with their father is important and should be supported." Further, none of CAAP's 18 recommendations calls for a limitation to Mr. Sluski's access to Melissa and James, much less a requirement that it be supervised.

[51] CAAP's biggest concerns in this case are twofold, and both arise out of Ms. Beatty's parenting. First is parental conflict that arises out of Ms. Beatty's unsupported sexual abuse allegations. Second, and closely related to the first concern, is Ms. Beatty's detrimental inability to focus on the children's needs rather than her abuse narrative. CAAP is particularly concerned about Ms. Beatty's unrelenting attempt to prove that NS sexually abused Melissa. Relevant excerpts of the CAAP report that raise concerns about Ms. Beatty's parenting include the following statements:

• CAAP did not complete a parenting capacity assessment of the parents, however on Ms. Beatty's interviews with CAAP there is information to support that Ms. Beatty functions in a state of fear and fixed beliefs which she is unwilling/unable to change at this time. CAAP strongly supports that Ms. Beatty continue with professional supports to address her fears and beliefs such that the impact on the children is minimized. CAAP would further suggest that Ms. Beatty would benefit from parenting support to address appropriate parenting boundaries and to develop skills and strategies to address Ms. Beatty's fears and anxieties when the children make comments or engage in behaviours that Ms. Beatty perceives to be concerning.

• It is strongly recommended that the focus in the family should shift away from a discussion about exposure to sexual abuse and focus on learning appropriate boundaries and behaviours within the maternal home.

• Repeated interviewing of the children regarding the same or similar concerns for maltreatment can be detrimental. Thus it is CAAP's opinion that no further interviewing or investigations regarding sexual abuse should be pursued unless there is new and compelling information to suggest that either Melissa and/or James have been exposed to sexual maltreatment.

• CAAP strongly supports that Ms. Beatty continue with professional supports to address her fears and beliefs such that the impact on her children is minimized. CAAP would further suggest that Ms. Beatty would benefit from parenting support to address appropriate family boundaries, sexualized behaviours and to develop skills and strategies to address her fears and anxieties when the children make comments or engage in behaviors that Ms. Beatty perceives to be concerning.

Legal Test for Varying Access

[52] To change the unsupervised access order, Ms. Beatty must first prove that there has been a material change in circumstances since O'Connell J granted unsupervised access to Mr. Sluski on October 23, 2014. Before making a change, the court must consider whether the issue can wait for trial. As Mackinnon J. stated in Pey v. Pey:

The policy of the law does not favour disturbing an existing residential arrangement on a temporary basis before trial, with good reason. The court is in a better position to fully consider the matter at trial. Children are thought to benefit from consistent, stable living arrangements in comparison to ones that frequently change. Court resources are limited; litigants should be encouraged to move forward to final determination rather than to occupy themselves and the court calendar with multiple motions to change temporary orders. For all of these reasons change on a temporary basis is approached with caution.

[53] If Ms. Beatty can demonstrate a material change in circumstances, and that the matter cannot await a trial, the court must then decide on which access is in the children's best interests. It will do so based on the factors set out in s. 24(2) of the Children's Law Reform Act.

[54] The following additional factors apply to a consideration of whether a particular form of access by a parent is in a child's best interests:

1. A child should have maximum contact with both parents if it is consistent with the child's best interests;

2. The best interests of the child, which include a loving relationship with both parents, should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being;

3. There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances;

4. The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction;

5. Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm.

[55] Here there is no reason to vary O'Connell J.'s order of October 23, 2014 regarding Mr. Sluski's access to Melissa and James. There has been no material change of circumstances since the unsupervised access was ordered. Even if there were, the factors cited above strongly support a continuation of the present access. This request is dismissed. However I emphasise that neither NS nor TS shall be present during that unsupervised weekend access.

Request 4: Access Between James, Melissa and T.S. at a Supervised Access Centre

[56] I have already dealt with that issue above in the context of sibling access.

Request 5: Full Copy of Halton Children's Aid Files

[57] Ms. Beatty does not appear to have served the HCAS with her notice of motion or affidavit requesting this and the next two heads of relief. That in itself should be fatal to those requests for relief.

[58] More importantly though, this issue of third party disclosure by the HCAS was decided on February 8, 2016. It is res judicata and subject to the doctrine of issue estoppel. The doctrine of issue estoppel applies to a decision in an interlocutory proceeding with regard to other proceedings in the same action. The attempt to re-litigate the issue is an abuse of process.

Request 6: Location and Conditions for File Review

[59] This request was not raised in oral argument. No authorities for the request have been provided. The issues could have been raised in the disclosure motion argued before me on January 25, 2016 and decided on February 8, 2016. The doctrine of res judicata applies not only to issues raised but that could have been raised at the proceeding. As the Ontario Court of Appeal has stated:

The doctrine of res judicata, in its wider application, prevents a person from relying on a claim or defence which he or she had the opportunity of putting before the court in the earlier proceedings but failed to do so. This principle was adopted by the Supreme Court of Canada in Maynard v. Maynard, [1951] S.C.R. 346 (at 358-59 citing the often-quoted words of Wigram V.C. in Henderson v. Henderson, (1843) 67 E.R. 313 (Eng. V.C.))

... where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.

[60] Accordingly that request is dismissed.

Request 7: Order Restricting CAS Contact with Children and Applicant

[61] Ms. Beatty did not argue this request. She has provided no evidence or authority for what is in effect a request for an institutional non-contact order. What makes this request particularly problematic is the HCAS has a mandate to protect children and promote their best interests. I dismiss this request for relief.

Request 8: Sealing of Court File and Use of Initials

[62] Ms. Beatty was unable to refer to any evidence to support the notion that the "court file" (presumably the continuing record) in this matter be sealed. She only refers to the fact that children are involved. She also made reference to some element of unfairness in that child welfare files are closed but that the HCAS chose not to bring a protection application based on her allegation of sexual abuse of Melissa. I am also unaware of what she means when she requests that Vol. 10 of the file be redacted and initialed.

[63] I do note that s. 137 of the Courts of Justice Act offers the court the discretion to seal a court file. It reads as follows:

137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

(3) On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

(4) On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see.

Open Court Principle

[64] In considering Ms. Beatty's request I must consider the application of the open court principle. As LaForme J.A. wrote for the Ontario Court of Appeal:

[140] Open justice is fundamental to our justice system. The open court principle is a "hallmark of a democratic society" which "has long been recognized as a cornerstone of the common law": Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24.

[141] Open courts allow Canadians to observe "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, at para. 22. And "[a]n open court is more likely to be an independent and impartial court": Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, [2007] S.C.J. No. 43, 2007 SCC 43, at para. 32. Finally, the principle gains importance from its clear nexus with freedom of expression, enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms: see Edmonton Journal (The) v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, at pp. 1337-40 S.C.R. The freedom of the press to attend and report on court proceedings is core to the constitutional nature of the open court principle: see Edmonton Journal, at pp. 1339-40 S.C.R.

[65] In G.M. v. R.M., Gray J. considered a request for a sealing order because one of the children before the court was experiencing gender identity issues. One of the issues before the court was the extent to which the parents could attempt to influence the development of the child's gender identity.

[66] Gray J. felt that it was necessary to protect the child from any publicity that may arise from the litigation. Yet, after reviewing a number of relevant civil and family cases, Gray J. felt that it was important to protect the integrity of the open court principle. Despite his concern with protecting the child, Gray J. felt that the public had a right to know how the debate over the handling of the child's gender identity issues plays itself out in the courtroom.

[67] At the end of the day, Gray J. refused to seal the file. But he did order that the parties and children be identified by initials only. He also prohibited any communications that could identify the parties.

[68] Here I have not been provided with a factual underpinning that would allow me to make the determination necessary to balance the interests of the children in this case against the interests of the public. I have not been made aware of any reason to suspect that the press would have an interest in this case. I have already identified the two children whom Ms. Beatty accuses of sexual misconduct by their initials.

[69] For those reasons, I believe that the trial judge will have the best opportunity to consider all of the issues in this case. She will be better situated than I to determine how to balance any privacy interests that Ms. Beatty may claim on behalf of herself and the children against the open court principle. For that reason I dismiss this request, without prejudice to the right to raise it again, upon proper notice, at trial.

Other Relief Requested by Ms. Beatty

[70] Ms. Beatty made reference in her notice of motion to certain relief that she was seeking before Starr J. That is not a formal request for relief, and the issues raised are not before me. I dismiss that part of her request for relief.

Order

[71] Accordingly a temporary order shall go:

1. Mr. Sluski is entitled to bi-weekly supervised sibling access visits that include Melissa, James, NS and TS. The visits shall take place for two hours at a time at a supervised access centre agreed upon by the parties. These access visits shall take place on weekends that Mr. Sluski does not have unsupervised access to Melissa and James. They shall take place at times that the access centre is available and which the parties agree upon.

2. I adjourn any unresolved issues regarding the dates, time and place of the supervised access over to March 17, 2016. If the parties are unable to reach an agreement with regard to those or any other details of the supervised sibling access, I will deal with them on March 17, 2016.

3. The balance of this motion is dismissed, without prejudice to the right of either party to raise the issue of the sealing of the file or use of initials to identify the parties and children, at trial, upon proper notice.

4. I may be spoken to regarding costs, if any are claimed, on March 17, 2016.

Released: March 15, 2016

Signed: Marvin Kurz J.