Q.M.S.Q. v. S.Q., 2021 ONCJ 334

CITATION: Q.M.S.Q. v. S.Q., 2021 ONCJ 334

DATE: June 14, 2021

COURT FILE NO. D10317/18

ONTARIO COURT OF JUSTICE

B E T W E E N:

Q.M.S.Q.

ACTING IN PERSON

APPLICANT

• and -

S.Q.

RICHARD TEICHER, and MYLES GOODMAN-VINCENT, student-at-law, for the RESPONDENT

RESPONDENT

HEARD: JUNE 7-8, 2021

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] The primary issue in this trial was about what parenting time, if any, the applicant (the father) should have with respect to the parties’ two children, K.Q., age 13 and H.Q., age 11 (the children).

[2] K.Q. has refused to have any contact with the father since December 2019. H.Q. has refused to have any contact with the father since January 31, 2021.

[3] The other issues at trial related to the respondent’s (the mother’s) request for a restraining order against the father and as to whether orders should be made permitting her to obtain or renew government documentation for the children, and permitting her to travel outside of Canada with the children, without the father’s consent.

[4] Final orders were made earlier in this case by Justice Carolyn Jones for the mother to have final decision-making responsibility for the children and for the father to pay child support to the mother.

[5] The court received evidence from the parties and from a clinician (the clinician) from the Office of the Children’s Lawyer (the OCL), who conducted an investigation and prepared a report pursuant to section 112 of the Courts of Justice Act (the report or section 112 report). The court reviewed the report and supervised parenting time observation notes that were filed as business records from Access for Parents and Children in Ontario (APCO) pursuant to the Evidence Act.

[6] Allowances were made by the court for the father because he was acting in person. He was permitted to file additional documents at the trial. This documentation included a medical report from his family doctor. The mother, reasonably, did not object to the late admission of these documents.

Part Two – Factual background and court history

[7] The father is 41 years old. The mother is 39 years old.

[8] The parties were married in May 2007.

[9] The parties are the parents of the children. They have no other children.

[10] In January 2012, the parties and the children came to Canada from Dubai.

[11] The parties and the children became Canadian citizens in 2015.

[12] In January 2016, the parties and the children moved back to Dubai for six months. They returned to Canada in July 2016.

[13] In September 2017, K.Q.’s teacher called the Children’s Aid Society of Toronto (CAST) after K.Q. reported family violence by the father.

[14] The parties separated at the end of September 2017. The mother and the children moved into a shelter for victims of family violence.

[15] The father was criminally charged in September 2017 with two counts of assaulting the mother and with one count of uttering threats against her.

[16] The parties have not reconciled since their separation and the children have continuously lived with the mother.

[17] The parties agreed to have the father visit with the children supervised by CAST.

[18] There were two visits supervised by CAST. They were unsuccessful. CAST terminated the visits because it felt that it could not keep the children emotionally safe during the visits because of the father’s behaviour.

[19] At the first visit, the father told the children that he was not eating because they were not with him, brought up court several times, gave K.Q. a message to give to the mother and cried for the last five minutes.

[20] At the second visit, in January 2018, the father cried audibly for most of the visit and made the children feel uncomfortable. After the visit, the father was told that he could not have two visits a week and he told the worker that he would leave the country and not come back – even if his children died.

[21] The father was encouraged by CAST to pursue counseling. The father said that he was not interested. He attended at CAST unannounced on two occasions in an emotional state, begging for visits to be reinstated. CAST did not agree and advised him to come to Family Court.

[22] On February 8, 2018, the father issued an application seeking parenting time with respect to the children.

[23] The father withdrew his application in March 2018. He went to Dubai for several months. He testified that he needed a break, as he was very stressed by his separation from the mother.

[24] On July 12, 2018, the mother issued this application.

[25] The father returned to Canada in July 2018 for his criminal case. He was convicted of two charges of assault against the mother and was placed on probation for two years. That probation order has now expired.

[26] On December 10, 2018, the father filed his Answer/Claim.

[27] On February 21, 2019, at a case conference before Justice Jones, the parties consented to an order that the mother have final decision-making responsibility for the children and that the father have temporary supervised parenting time at APCO.

[28] On September 6, 2019, the parties consented to decreasing the level of supervision for the father’s parenting time at APCO. The first hour and the last 30 minutes of the visits were to be supervised and the middle two hours were to be unsupervised in the community.

[29] On October 1, 2019, Justice Jones made an order that neither party was to discuss the case with the children or disparage the other parent to the children. She also referred the case to the OCL.

[30] On December 15, 2019, K.Q. refused to see the father. He has refused to have any contact with the father since then. The father continued to see H.Q. at APCO.

[31] APCO suspended operations at the outset of the pandemic in March 2020 and the father did not see the children.

[32] Virtual visits between the father and H.Q. started through APCO in July 2020. K.Q. refused to have these visits with the father.

[33] On July 7, 2020, the OCL delivered the report to the court. The father filed a dispute to the report. The OCL filed a response to the dispute maintaining its factual findings.

[34] The father then brought a motion to increase his parenting time with the children. The mother brought a cross-motion to decrease it.

[35] On December 11, 2020, Justice Jones significantly reduced the father’s parenting time. She ordered that the father have temporary virtual parenting time with the children in alternate weeks, supervised by APCO, subject to the wishes of the children. This is the order that is currently in place.

[36] On January 31, 2021, H.Q. refused to see the father. She has refused to have any contact with him since then.

[37] On April 1, 2021, Justice Jones ordered the father to pay the mother costs of $2,250 for the contested motion that was heard in December 2020.

Part Three – Credibility and reliability

[38] The court found the mother to be a credible and reliable witness. Her evidence was clear, detailed and not over-stated. Most importantly, her evidence was often corroborated by neutral sources.

[39] The father was neither a credible nor a reliable witness.

[40] Despite pleading guilty to two counts of assaulting the mother, the father claimed at trial that he only touched the mother’s hand to stop her from disciplining a child. He said that he pleaded guilty to protect the mother from humiliation at the criminal trial. This was not credible.

[41] The father was avoidant when asked difficult questions at trial. He often said, “it was 50/50” when asked about the truth of an allegation – such as allegations of family violence. It was difficult to determine from him which portions of the allegations he felt were true and which portions were not.

[42] Even more concerning to the court was the reliability of the father’s evidence. A major theme that emerged in this case was that the father perceives events much differently than everyone else. The father would claim that a visit was successful when the children were expressing to many people how distressing it was to them. He would claim that he had a wonderful relationship with the children – all evidence to the contrary.

[43] The father testified that he has difficulty expressing himself properly and that everyone misunderstands him – even his family. He said that other people, including the mother, might interpret his behaviour as threatening – but he means no harm and that he is not dangerous.

[44] The father clings to a perception that the mother is alienating the children from him. There was no evidence to support this. The mother has consented to trying different parenting arrangements. The children have expressed their views and concerns about the father to many professionals. They have done this consistently.

[45] The court preferred the evidence of the mother, the clinician and the professionals referenced in the report when their evidence conflicted with the father’s evidence.

Part Four – Review of the parties’ evidence

4.1 The mother

[46] The mother is very afraid of the father.

[47] The mother said that she was frequently the victim of family violence during her relationship with the father. This family violence took place in the presence of the children. She described the father as being dangerous when he became upset. He would yell, push her, strangle her, and punch her on her arms, leaving bruises.

[48] The mother stated that the father would often threaten to crash the car while he was driving her and the children.

[49] The mother described the father as aggressive with the children – often yelling at them and shaking them. He would be punitive by making the children skip meals. She said that he discouraged the children from going to school and doing homework or participating in activities. She emphasized that most of the abuse to the children by the father was verbal and emotional.

[50] The mother described the father as very controlling. He had complete control of the family’s finances. He prevented her from making friends and refused to let her return to school.

[51] The mother said that the father was diagnosed with major depression in 2014 and that he had suicidal ideation. She said that the father was prescribed medication to stabilize his mood but was inconsistent in taking it.

[52] The mother said that the father was very unhappy and that he openly blamed her and the children for his unhappiness.

[53] The mother said that she obtained the help of CAST and moved with the children into the shelter in September 2017. She subsequently went back to school and obtained a degree in Early Childhood Education in 2020.

[54] The mother described how the father has stalked her several times since the separation.

[55] The father acknowledged at trial that in October 2017, he tracked the mother through the GPS on the children’s IPAD and located the address of their shelter. He enlisted his sister, who approached the children on their way to school. The mother was very shaken by the ease with which the father had located her. She and the children had to move shelters. The children had to change schools.

[56] The mother was further shaken when the father served her with court documents at her second shelter in 2018. The father claimed that he learned this address through documents he had obtained in the criminal court matter.

[57] The mother said that there was a third incident in 2019 where the father approached the children close to their new residence. The father claimed that he was driving a taxi and just happened to see the children – that it was an accidental encounter.

[58] The mother said that she obtained the father’s consent to travel to Dubai with the children to see her family in 2019. The mother testified that the father then gave her travel details to paternal family members who accosted her at the Dubai airport upon her arrival, demanding to see the children and telling her that she should reconcile with the father. She called airport security and they left. She later learned that the father was waiting outside the airport. The father did not deny this.

[59] The mother is afraid of the father learning her present address.

[60] The mother attested that she has wanted the children to have a positive relationship with the father. This is why, she said, she agreed to try some unsupervised parenting time.

[61] The visits became increasingly difficult and unbearable for the children.

[62] The mother testified that the children became very stressed about the visits. They would complain about stomachaches after them. H.Q. started developing behavioural problems and was suspended from school for two days after the unsupervised visits started.

[63] The mother said that she has followed the recommendations made by the clinician. She has obtained a therapist for H.Q. She said that K.Q. is on the waitlist for the Big Brothers program.

[64] The mother said that the children have been doing well since their parenting time with the father stopped.

[65] The mother said that she has set up a separate email address for the father to communicate with the children. She feels that this is safe since she can monitor the messages coming in and out. She said that the father has sent four email messages to the children since she set up this email address, but they are not ready to respond to him yet.

[66] The mother asks that the father’s parenting time be limited to communicating with the children through this email address. She seeks a restraining order against him. She also asks to dispense with his consent to obtain government documentation and to travel outside of Canada with the children for vacation purposes. She does not believe that the father will reasonably sign consents. Specifically, she does not want to advise him of travel details to avoid a repeat of the disturbing incident that took place at the Dubai airport in 2019.

4.2 The father

[67] The father claimed that he is now a changed man. He testified that he took an anger management course and the person who conducted the course explained that the father had problems controlling his emotions because of a brain injury he suffered as a child. This person is not a doctor and was not called at trial.

[68] The father said that he is now taking medication for major depression and that he has been more alert, calmer, energized and focused for the past three to four months.

[69] The father stated that there has been a drastic change in his negative behaviour. He said that his anger has decreased.

[70] The father testified that he began having anxiety issues and minor depression in 2012 because he was unsuccessful in bringing his parents to Canada. He said that this developed into major depression. He said that he was prescribed medication but had negative reactions to it.

[71] The father said that he has been in receipt of Ontario Disability Support Payments for the past two and a half years due to his anxiety and depression.

[72] When asked about the alleged family violence, the father testified that “no relationship is perfect”. He said that he engaged more in verbal abuse than physical abuse. He acknowledged that he shouldn’t have done this, but it was never “life-threatening”. He blamed his medications for his behaviour.

[73] The father said that some people take words differently – that maybe he sounded rough or threatening but he wasn’t. He said that the mother took his words in the wrong way.

[74] The father described the mother’s allegations as 50% right and 50% wrong. He did not elaborate further despite being asked to do so.

[75] The father said that the mother is a good mother who looks after the children’s needs.

[76] However, the father also believes that the mother is alienating the children against him. He believes that the children want to see him and that the mother has prevented this. He believes that if only the children had generous unsupervised parenting time with him everything would be fine.

[77] The father filed a series of social media messages between himself and the children from 2019 that he felt proved this point. They didn’t. Many of the messages showed him placing considerable pressure on the children and asking them to keep secrets from the mother.

[78] The father admitted that he emotionally broke down at visits, “as any reasonable father would do”.

[79] The father admitted that he would tell the children that he wanted them to live with him.

[80] When asked whether he told the children to keep secrets at the visits, the father answered, “somewhat yes, somewhat no”.

[81] The father felt that the children were comfortable at the visits with him.

[82] The father acknowledged one incident at APCO on January 12, 2020 where he “lost control” in front of the children when they refused to have a visit with him

[83] The father felt that he was misunderstood at CAST and at APCO.

[84] The father also felt that he was misunderstood by the clinician. He challenged her experience.

[85] The father conceded that he had troubled communications with the professionals involved with him in this case.

[86] The father said that the court system has abused him, and that CAST has ruined his life.

[87] The father was asked how often he wanted to see the children. Initially he answered, “now and then”. When asked to be more specific, he said that he would like to see them on weekends.

[88] The father said that he has taken parenting courses. He filed the certificates.

[89] The father said that he has been regularly seeing his doctor for the past few months. This was confirmed by his family doctor in an April 2021 letter filed. The doctor stated that the father was stable and compliant with his medication.

[90] The father was asked why he had not seen a psychiatrist or a therapist, as recommended by both CAST and the clinician. He blamed the pandemic. He testified that “eventually I will go to a psychiatrist and prove that I am a different person”.

[91] The father does not feel that he is any threat to the mother. He opposes her request for a restraining order.

[92] The father asks that his consent be required if the mother wishes to obtain government documentation for the children or if she wishes to travel outside of Canada with them.

Part Five – Evidence from the clinician

5.1 Quality of the report

[93] The clinician conducted numerous interviews with the parties and the children. She also observed a visit between the father and H.Q. She spoke with many collateral sources such as the school principal, the children’s teachers, the father’s family doctor and the mother’s family resource worker. The clinician also reviewed business records from CAST, Toronto Police Services, APCO and Dr. Roz’s Healing Place. She also reviewed documentation of the father’s completion of an anger management program and the Caring Fathers program.

[94] The court is satisfied that this was a comprehensive and helpful investigation and report.

[95] The findings in the report aligned with the other evidence heard by the court and the court’s observations of the parties. This strengthened the value of the report.

[96] The court had no concerns with the clinician’s experience. She is a regional clinical supervisor at the OCL and provides oversight and direction to other clinicians. She has a master’s degree in social work and has been a registered social worker for seven years.

5.2 Admissibility of out-of-court statements in an OCL report

[97] In George v. Nguyen, 2017 ONCJ 161 Justice Victoria Starr considered the admissibility of out-of-court statements found in section 112 reports conducted by the OCL.

[98] Justice Starr found that if these statements are not formally challenged, they are presumptively admissible as if original evidence tendered at court.

[99] Justice Starr came to this conclusion based on a comparison of the differential treatment in the relevant legislation and rules of section 112 reports and the reports of expert assessors appointed pursuant to section 30 of the Children’s Law Reform Act (the Act). She also considered the purpose of the OCL investigation and the important role these reports play in promoting the primary objective of the Family Law Rules.

[100] Justice Starr pointed out that subsection 112 (3) of the Courts of Justice Act very clearly states that the report forms part of the record upon the OCL filing it and provided it meets the technical requirements identified in the subsection.

[101] At paragraph 20 of her decision, Justice Starr wrote:

Finally, this interpretation and approach enables the court to deal with cases justly as required by subrules 2(2) and in the ways contemplated in subrule 2(3). This is why: The majority of litigants simply do not have the resources to hire assessors, conduct their own investigations, or, to participate in lengthy trials. Many of them are also unrepresented and simply do not know what information the court needs to make a decision, let alone how to go about getting the information needed. In these situations the court often needs some way of obtaining reliable information from collaterals. Obtaining an OCL investigation and report gets the information the court needs to determine a child’s best interests in front of it. The issue is not one of admissibility but rather the weight to be afforded to the out of court statement – something judges are tasked with. Dispensing with the need to call each and every person the OCL spoke to as a witness at trial, unless formally challenged, allows the court to deal with cases justly as required :

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[102] In George, as in this case, the section 112 report contained statements by people who were not called by either party to give evidence at the trial. The father, in George, served a dispute wherein he challenged the reliability of out-of-court statements made by six witnesses in the section 112 report. The out-of-court statements of witnesses that he did not challenged were admitted. Three of the six challenged witnesses testified at the trial. Justice Starr ruled that the out-of-court statements made by the three challenged witnesses who did not testify at trial were inadmissible.

[103] Justice Starr ruled that where the reliability of an out-of-court statement contained in the report is not challenged (which included the child’s statements in her case), that evidence is admissible. The court would determine its weight.

[104] The Court of Appeal in Knapp v. Knapp, 2021 ONCA 305, recently rejected a ground of appeal that the trial judge improperly relied on inadmissible hearsay contained in a section 112 report by the OCL. The court stated that the evidence had been put to both parties in cross-examination and that neither party denied the accuracy nor sought to call the declarants as witnesses.

[105] Justice Marvin Kurz took a similar approach to Justice Starr in dealing with out-of-court statements contained in section 112 reports in M.A. v. E.A., 2017 ONCJ 930. Justice Kurz added that the same analysis set out in George applied to the business records which the OCL investigator relied upon in preparing the section 112 report.

[106] Justice Kurz added one modifier – that where the section 112 report offered double or triple hearsay evidence, he would ignore it as it would be too remote and unhelpful to the adjudication process.

[107] Justice Kurz’s approach recognizes the importance of the judge’s gatekeeper role in ensuring that courts make decisions based on reliable evidence.

[108] The court repeats what it wrote at paragraph 134 of G.S.W. v. C.S., 2018 ONCJ 286:

At the core of the admissibility analysis is the reliability of the proposed evidence. Unreliable evidence should never be necessary. Unreliable evidence cannot support a fact in issue -- so it can't be relevant. Reliability is also a critical consideration at the gatekeeper stage as it will not be worth the time and cost involved to introduce unreliable evidence. See: The Motherisk Report at pg. 34; The Goudge Report, pars. 477-479; R. v. Abbey, 2009 ONCA 624; Children's Aid Society of Toronto v. D.S., 2013 ONCJ 531.

[109] The court is mindful that direct evidence from witnesses is likely to be more reliable, as it is not being interpreted by a third person. Witnesses are also likely to be much more careful about, and accurate with their evidence if they know it will be in a court affidavit and they may be cross-examined about it (see the court’s comments in paragraph 20 of Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661).

[110] The court will follow the approach taken by Justice Starr in George, keeping in mind its gatekeeper role to ensure that it only gives weight to reliable evidence. As Justice Kurz pointed out in M.A., the more removed the source of the evidence is from the clinician, the less reliable the evidence usually becomes.

[111] In determining the weight to give to out-of-court statements contained in a section 112 report, the court should conduct a full contextual analysis. Factors - such as the out-of-court statements being made by or to neutral professionals with a duty to keep contemporaneous notes and records, the statements being consistently made by several witnesses and the statements being corroborated by other evidence presented at trial – will enhance their reliability and the weight to be placed on them.

5.3 Application of admissibility issues to this case

[112] The father filed a dispute to the report. He was represented by counsel at the time.

[113] The dispute mainly denies several statements attributed to the father by the clinician and challenged the clinician’s recommendations.

[114] The father denied that he told CAST that he pushed the mother when he was charged with assault. Since the CAST worker was not called, the court will not rely on that statement.

[115] The court will rely instead on the father’s conviction for assaulting the mother.

[116] The only other out-of-court statement challenged in the report by the father was a statement from a CAST worker that the father followed her and the children in his car after a visit. The father did not deny that he was behind the worker’s car in his car. He explained that he was not following them and only drove “in the appropriate direction to get to his destination”.

[117] The father did not challenge the other out-of-court statements contained in the report from collateral sources. He also did not challenge the statements made by the children contained in the report – although he believes the mother unduly influenced them.

[118] In this case, the weight of the out-of-court statements (not made by the children) contained in the report was enhanced because most were made by or to neutral professionals with a duty to prepare contemporaneous notes and records of the event. The statements made about the parties and the children were remarkably consistent over a long time and established clear patterns and themes. The mother confirmed the veracity of many of these statements, and with minor exceptions, the father did not oppose them.

[119] The court gave considerable weight to the statements made by the children to the clinician. She is a professional trained in interviewing children. She is required to keep contemporaneous notes and records of her interviews. She is neutral. She spoke separately to the children. The children spoke to her openly. She described them as bright and articulate. The statements were not made under circumstances of suspicion. The children’s statements made to her were consistent with statements that they had made to other people. The clinician observed and confirmed the father’s behaviours that the children spoke to her about. The father did not dispute that the children made these statements to her. Although the clinician testified, the father did not cross-examine her about these statements.

[120] The court attributed weight to the children’s statements contained in the APCO records. They were recorded by persons who are required to contemporaneously record their observations at visits. APCO is neutral. The actual observation notes were filed for the court to review. This allowed the court to assess the context in which the statements were made. The statements were not made under circumstances of suspicion. The children’s statements in the APCO records were consistent with statements made to other persons. The father did not dispute these statements or seek to call a witness from APCO.

[121] The child statements made to APCO were given less weight than the child statements made to the clinician. They are double hearsay. They were recorded by different persons and the court does not know about the skill or training of each person who recorded the statements. Unlike the clinician, no one from APCO was called to testify.

[122] The court attributed the least weight to the statements that the clinician said the children made to CAST workers. The court considered that these statements were contained in business records prepared by neutral professionals who are required to contemporaneously record events. They were summarized by the clinician, who has the same responsibility. Almost four years later, it is unlikely that the CAST workers would have much memory of the events surrounding the statements. The child statements were also consistent with subsequent statements made by them. The statements were not denied by the father.

[123] However, unlike the APCO reports, the court did not have the benefit of seeing the actual CAST business records. The court does not know who from CAST recorded the child statements, their level of training and experience in interviewing children, the circumstances surrounding the taking of these statements and what questions were asked that might have prompted the children’s statements. This is important, as the father claims that the mother influenced these statements.

[124] The court will only rely on the child statements made to CAST for the purpose of explaining why the society became involved with this family – because the children reported family violence by the father and expressed their fear for the mother’s safety. The court will not rely on any specific allegation set out in the child’s statements for the truth of its contents.

5.4 Review of the report

[125] The clinician had no concerns about the mother. She found that the mother has provided a high level of care and support for the children. She observed that the mother was very attuned to the children’s interests and personalities.

[126] The clinician found no evidence that the mother was alienating the children from the father. She said that the children had a justifiable estrangement from him.

[127] The clinician expressed significant concerns about the father. She recommended that he have no parenting time with respect to the children.

[128] Due to her concerns about the safety of the children and the mother from the father, the clinician took the unusual step of sending her report to CAST for safety planning.

[129] The clinician’s review of the APCO notes revealed that the concerns about the father’s parenting documented by CAST in 2017 persisted. The problems included:

a) The father crying, making the children feel uncomfortable and bad.

b) The father making comments about not being able to eat if he could not see the children.

c) The father telling the children to pass messages to the mother and to tell her that he should come and live with them.

d) The father whispering to the children.

e) The father asking the children at visits to text him.

f) The father being unable to control his anger, at times. At the January 12, 2020 visit, the children refused to see the father. The father scared them by yelling loudly from the other room at staff to tell his kids, “when I am dead, don’t come to see me then, I am done. From this day, they are no longer a part of my life”.

g) The father asking H.Q. to pass messages to K.Q., after he stopped attending visits.

h) The father not listening to what H.Q. was interested in talking about.

[130] The children reported to APCO staff that their time with the father in the community had not gone well because he was crying, talking about the mother and telling them to come back to him.

[131] The clinician deposed that these statements made by the children to APCO staff were consistent with the children’s statements made to her during her investigation.

[132] School staff reported to the clinician that H.Q.’s behaviour changed in September 2019 after she began having unsupervised parenting time with the father. She began having challenges with peer conflict and was suspended.

[133] The clinician observed a visit between the father and H.Q. At one point, the father went to the washroom and H.Q. said to the clinician, “Please do not leave. I will be scared if you leave”. She went on to say to the clinician that she only agreed to leave the APCO building because the clinician was there. She said that she was not comfortable telling the father this.

[134] During this visit, the clinician said that the father asked H.Q. to pass a message to K.Q. about getting a gift if he visits, made a negative remark about the mother and told H.Q. that it was ok if she had a Tik Tok account, although her mother had said no to this. He also told H.Q. twice that he cannot normally eat without her there.

[135] The clinician expressed concern that the father felt that this was a positive visit. She believes that he has no insight into the children’s feelings or his parenting deficits and that he has very limited parenting skills.

[136] The clinician said that K.Q. told her that the reason he does not want to see the father is because the father asks about the mother, tells them to come back and makes H.Q. upset when he cries in front of them. He said that he had tried asking the father to “stop making comments and he doesn’t listen”. He said that he did not want to speak with the father and that he had blocked him on social media.

[137] The clinician says that the children’s views and wishes have remained clear and consistent.

[138] The clinician spoke with the father’s family doctor who told her that he referred the father to a psychiatrist in September 2016, but he only went to one appointment, saying that he was too busy with work to come back. The father was offered ongoing follow-up by the psychiatrist, but he declined this. He said that the father was also offered psychotherapy but said that time was a constraint and did not follow through with this.

[139] The family doctor told the mother that his diagnosis for the father was Generalized Anxiety Disorder and persistent depressive symptoms with anxiety.

[140] The clinician reported that the CAST notes set out that K.Q.’s school made a referral due to reports of family violence in September 2017.

[141] The clinician deposed that in the CAS records the following was stated:

We are worried that the father, despite his engagement in services, is a high risk for re-offending – his mental health, lack of support, comments about self-harm, hopeless thinking, him asking the society to relay messages on his behalf all show an interest on the reunification of the family and not on accepting the present situation….we are equally worried that access to the children could be used as an opportunity to gather more information and make the children feel guilty for leaving and this could result in emotional harm.

[142] The clinician observed that the father’s overall lack of remorse and responsibility for the effect of his actions on others appeared to be a pattern for him. Despite similar concerns expressed by CAST in 2017, the father had not made any meaningful gains in his parenting ability or his ability to modify his behaviour. The clinician deposed that the father spoke openly to her about telling his children that he would like to get back together with the mother and gave examples of involving the children in conflict.

[143] The father told the clinician that he had read on a website about statistics regarding fathers who are depressed and driven to suicide because of being separated from their children. Though he denied current suicidal ideation, he told the clinician that he could understand this.

[144] The clinician made a number of recommendations, including that:

a) The father have no parenting time with respect to the children.

b) Any future communication with the children should take their wishes into account.

c) The father have no communication with the mother.

d) K.Q. be enrolled with the Big Brothers program.

e) H.Q. receive individual counseling.

f) The father follow up on a referral for psychiatry and engage in therapeutic support regarding parenting in the context of separation and divorce.

Part Six – Parenting orders

6.1 Legal considerations

[145] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Act.

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

[147] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[148] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[149] Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence. It reads as follows:

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[150] Family violence has been given a comprehensive and useful definition in subsections 18 (1) and (2) of the Act. The definition of family violence in subsection 18 (1) of the Act reads as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

[151] Subsection 18 (2) of the Act reads as follows:

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

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

33. 1 Protection of children from conflict

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

[153] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[154] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

[155] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[156] However, a parent does not have an absolute right of parenting time. Parenting time is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that parenting time will not harm the child; that is far too low a threshold. See: Worthington v. Worthington 2000 CanLII 22469 (ON SC), 2000CarswellOnt 4889 (SCJ).

[157] In V. S. J. v. L.J.G., 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate parenting time:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707.

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. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769 (N.B.Q.B.); Abdo v. Abdo 1993 CanLII 3124 (NS C.A.), (1993), 126 N.S.M. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay 1987 CanLII 147 (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[158] The party who seeks to reduce normal parenting time 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. See: M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

[159] In M.K. v. T.R., [2014] O.J. No. 596, this court denied parenting time to a father and considered the following:

a) The father had been violent and controlling towards the mother during their relationship.

b) The father denied having been violent. This made him a poor candidate to change.

c) The mother’s stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety.

d) Parenting time is only to be ordered in circumstances where it will benefit the child.

[160] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.

[161] The court has taken these factors into consideration, where relevant, in determining what parenting orders are in the child’s best interests.

6.2 Discussion

[162] The court finds that it is in the best interests of the children that they only have parenting time with the father through the email account monitored by the mother. Further parenting time will not benefit them.

[163] The primary best interests consideration in subsection 24 (2) of the Act is the children’s physical, emotional and psychological safety, security and well-being.

[164] The children are very clear that they do not feel emotionally safe with the father. He pressures them to tell the mother to reconcile. He asks them to keep secrets from her. He pressured H.Q. to tell K.Q. to see him and to promise him gifts if he did so. He tries to manipulate them by crying during visits and telling them that he cannot eat. He tells the children they will be living with him. He makes negative statements about the mother to them. K.Q. would tell him to stop and he either couldn’t or wouldn’t. H.Q. pleaded with the clinician not to leave her alone with the father during a visit.

[165] The evidence indicates that the father’s conduct deeply affected the children. Both children were very stressed and exhibited physical symptoms of stress. H.Q. struggled with her social relationships when the father had unsupervised time with her. She is now engaged in therapy to deal with this.

[166] The children finally said enough, when the father’s behaviour at visits persisted. The visits were too stressful for them and they refused to have any more contact with him. First K.Q. stopped attending visits and then H.Q.

[167] The views and wishes of the children are an important best interests consideration in this case. The clinician described the children as thoughtful and articulate. They have consistently stated that they do not want to have contact with the father and have clearly expressed why.

[168] There is no evidence of parental alienation by the mother. She has agreed to different attempts at parenting arrangements.

[169] The mother’s parenting proposal is sensible in these circumstances. It provides a controlled gateway for the father to have a relationship with the children in the future – when they are ready.

[170] Family violence is also an important best interests factor in this case. The court finds that the father perpetrated family violence against the mother and the children, “as defined in the Act”. The children witnessed the father’s physical and emotional abuse of the mother and were the victims of emotional abuse by him as well.

[171] The father continues to minimize the extensive family violence perpetrated by him against the mother and the children. He continues to externalize blame on the mother. He still believes that she misunderstood his conduct.

[172] It is very concerning that the father stalked the mother after their separation. This caused her considerable fear and destabilized her and the children. They were disrupted, as they had to move shelters and the children had to change schools to keep safe from the father. The court does not accept the father’s statements that these encounters were innocent or accidental.

[173] The incident at the Dubai airport in 2019 is also very concerning. It informs the court that it is in the children’s best interests that the mother be able to obtain and renew government documentation for the children and travel with them for vacation purposes outside of Canada without the father’s consent. Given his manipulative conduct, it is also imperative that he be given no notice about when or where the mother is traveling with the children.

[174] The father has very limited parenting abilities. He is focused on his own needs and has no insight into his children’s needs. Despite considerable intervention by professionals, the father was unable to change his negative behaviour at visits over the course of almost four years. He could not control his behaviour, even when supervised and when being observed by the clinician.

[175] The father has failed to follow up on the clinician’s recommendation to obtain psychiatric treatment and to see a therapist. He has been historically resistant to this, not following up on previous referrals by his family doctor. He blames the pandemic for not doing this, but provided no evidence of efforts to obtain these services.

[176] The father now claims his behaviour was due to a brain injury suffered when he was younger. The person who told him this is not a doctor. He claims that he is now taking medication that has drastically improved his conduct – he is a changed person, he says. This improvement, he says, has been for the last 3-4 months. If so, this is a positive development.

[177] However, at trial, the father continued to show many of the same behavioural patterns revealed by the evidence – namely a profound lack of insight about how his conduct damaged the mother and the children and externalizing blame on to everyone but himself. He continues to view himself as the victim. This was a continuing theme in this case. He claims parental alienation by the mother. He blames CAST for ruining his life. He feels that the clinician and APCO misunderstood him. He feels mistreated by the court. He accepts little responsibility for his actions.

[178] Particularly concerning is that the father continues to perceive events in a way that appears to have no relation to reality. He believes that his visits with the children were positive despite the overwhelming evidence from multiple sources, including the children, that they were not.

[179] All of this makes the father a very poor candidate to change and puts the children at significant risk of emotional harm if he is granted parenting time with respect to them.

[180] Several attempts have been made over the past four years for the father to have positive parenting time with the children. These attempts have been a failure – particularly when a portion of the visits were unsupervised.

[181] It is important to the children’s stability and their emotional and mental development to have little contact, if any, with the father at this time. He has put them through a very difficult childhood. They want and need an extended break from him.

Part Seven – Restraining order

7.1 Legal considerations

[182] The mother’s request for a restraining order is made pursuant to section 46 of the Family Law Act. This section reads as follows:

Restraining order

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[183] The legal principles for the court to apply are as follows:

a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work or travel. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

c) It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.

d) Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254.

e) The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

f) A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

g) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

h) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

i) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

j) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

k) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: Stave v. Chartrand, 2004 CarswellOnt 2469 (OCJ); D.C. v. M.T.C., supra.

l) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.

m) A no-contact or communication order made pursuant to section 28 of the Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

n) A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

7.2 Discussion

[184] The court recognizes that it has the lesser option of making a no-contact order pursuant to section 28 of the Act.

[185] The court considered that the father has not contacted the mother since his probation order expired in the summer of 2020.

[186] However, the court finds that a restraining order, as requested by the mother, is necessary in this case for the following reasons:

a) The extensive family violence perpetrated by the father culminating in his criminal conviction.

b) His stalking behaviour after the parties separated.

c) His manipulative conduct that resulted in the 2019 incident at the Dubai airport.

d) The father has shown that he is very resourceful and determined when trying to track the location of the mother and the children.

e) The father has enlisted his family members as proxies to harass the mother and to try and convince her to reconcile with him.

f) The father’s pattern of manipulative behaviour.

g) The father’s minimization of his behaviour.

h) The father’s lack of insight into the impact of his behaviour on the mother and the children.

i) The father’s externalization of blame for his behaviour.

j) The father’s continued desire to reunite with the mother and the children.

k) The increased risk to the mother when the father receives the negative outcome of this case.

l) The father’s refusal or inability to obtain psychiatric and therapeutic treatment despite having mental health issues.

m) The father’s history of non-compliance with his medication regime.

n) The mother having an objective and subjective basis to fear for her safety. She is very scared of the father and for good reason. Any additional security that a restraining order gives her will provide the children with more stability and will be in their best interests.

Part Eight – Conclusion

[187] The court understands that this decision will be difficult for the father to accept. He loves his children and desperately wants a relationship with them. However, he has a lot of work to do before he will be able to convince a court to change this order.

[188] The father should find a psychiatrist, regularly see the psychiatrist and follow the psychiatrist’s treatment recommendations which may involve medication and some form of therapy. He will need to provide the court with a comprehensive psychiatric report setting out: his diagnosis and prognosis, his treatment plan and compliance with that plan, and the gains he has made in his insight and his ability to control his conduct.

[189] The court hopes that the father does this. It is essential for his own mental health. It is also likely his only pathway to eventually have a positive relationship with the children.

[190] It is also important for the father to understand that even if he makes these improvements that it may take some time for the children to have the necessary trust to resume a relationship with him. A lot of damage has been done.

[191] The children will be very sensitive to any pressure the father places on them to resume their relationship. Such pressure will likely only result in pushing the children further away from him. The father will need to be patient if he wants to have a relationship with the children.

[192] A final order shall go on the following terms:

a) The father’s parenting time with respect to the children shall be limited to the following:

i) The mother shall maintain a separate email address for the children and the father to communicate with each other.

ii) The mother may monitor any messages between the father and the children and determine if they should be delivered.

iii) The children may decide if they want to receive or send message on this email address.

b) The father shall have no other parenting time with respect to the children.

c) The mother may obtain or renew government documentation for the children, including passports, without the father’s consent.

d) The mother may travel with the children outside of Canada with the children, for vacation purposes, without the father’s consent. The mother has no obligation to notify the father about where or when she will be going on these vacations.

e) A restraining order is granted against the father. The court will complete a separate restraining order endorsement.

[193] If the mother seeks costs, she shall serve and file written submissions by June 28, 2021. The father will then have until July 12, 2021 to serve and file his written response. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[194] The court thanks counsel and the parties for their civility during the trial and commends mother’s counsel on his sensitive and professional presentation of this case.

Released: June 14, 2021

_____________________ Justice S.B. Sherr