COURT FILE NO.: C849/10-01

DATE: September 25, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

BETWEEN:

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

Tim Price for the Children’s Aid Society

Applicant

• and -

C.D.B. and L.D.B.

Hamoody Hassan and Sharon Hassan for C.D.B.

Lisa Walters for L.D.B.

Salim Khot, Donald Kilpatrick and Barbara Hoover for the Children’s Lawyer

Respondents

HEARD: See Schedule A

HARPER J.

ISSUES

[1] The Children’s Aid Society of London and Middlesex (“Society”) brought an application on September 10, 2010, pursuant to s. 37 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended], for a finding that the three children of C.D.B. and L.D.B were in need of protection. At the time, the children were the following ages: MDB, born […], 1994, was 15 years old (one day before his 16th birthday); RB, born […], 1997, was 12 years old; and MXB, born […], 2005, was 5 years of age.

[2] In addition to the child protection issues, both parents brought an application for divorce, custody and access, spousal and child support, division of property and equalization. It was agreed that the latter claims would follow th e trial of the child protection matter and that the evidence in the child protection matter, where appropriate, would be applied to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am. by S.C. 1997, c.1], the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and the Family Law Act, R.S.O. 1990, c. F.3 claims.

[3] Some of the material issues that must be determined in this case, relative to the child and parenting issues, are as follows:

a. Does the mother have a serious alcohol problem and other behaviours that have not only been significant contributors to the estrangement of the two older children but also impair her ability to care for the youngest child?

b. Has the mother made serious false allegations against the father and the oldest child that would contribute to emotional abuse of all of the children and prevent her being in a care giving role?

c. Is the father a controlling, abusive and coercive man who has severely alienated the two older children to the point that he should be considered the main catalyst in the allegations with respect to MDB that led to the criminal charges against him of attempted murder of his mother?

d. If the father is such a person, is there a real likelihood that he will also alienate and emotionally abuse the youngest child?

e. Does the child MDB pose a threat to his younger brothers of physical or emotional and or physical harm or the risk thereof such that his contact with his siblings should be supervised?

f. Does MDB and C.D.B. pose a threat of harm and even death to L.D.B.?

g. What are the possible solutions left to the court to decide the future relationships between the children and their parents?

LITIGATION BACKGROUND

[4] The complexities and issues in this trial are at the far end of anyone’s definition of extreme. It is helpful to detail at least some of the complex issues this trial has dealt with. From the outset of the filing of the protection application until the receipt of written submissions this matter took extraordinary twists and turns. The polarization of the parties, lawyers and other significant players helped explode this matter into one of the longest trials that spanned over 154 days of evidence. At stake in the matter before me is the future relationship between parents and their three children, and between the three children. The child protection issues were always the core issues in this trial but the focus of some of the significant players became crime, punishment and retribution. Allegations of domestic violence grew as time went on. Assertions that the father was coercive, controlling and abusive went from emotional abuse, to as far as him being a murderer who should be feared by all who opposed him, to him being someone who used his eldest son as a gun in his hands to try to kill the mother of these three children.

COMPLEXITIES AND SERIOUSNESS OF THE ISSUES

The Pre-Trial Process

[5] The father and mother physically separated at or about the end of May 2010. From that point until August 30, 2010, the children, MDB, RB and MXB, resided with the father in the matrimonial home in Strathroy, Ontario. They had some access to their mother. This access was resisted by the two older children.

[6] When the Society brought its protection application with respect to all three children on September 10, 2010, the child MDB was 15 years old and was criminally charged with, among other things, assault causing bodily harm to his mother and assault with a weapon. He spent approximately five days in jail while his bail hearing proceeded. He was eventually placed on strict conditions of bail that prohibited him from having any contact with his mother and restricted his ability to see his siblings unless certain conditions were met. After the criminal charges were brought against the child MDB, he was required to live with a surety outside of the father’s home where his brothers continued to reside.

[7] Prior to August 30, 2010, the children had always lived in the matrimonial home in Strathroy since the parents move to Canada from England in 2002. When the parents physically separated at the end of May 2010, all three children lived with their father in the matrimonial home. However, on October 29, 2010, Vogelsang J. issued an order granting the temporary custody of the youngest child MXB to the mother. The mother represented that she was residing with her parents in Chatham at the time. Temporary custody of the child RB was continued with the father and access between MXB and his father and siblings was also detailed but continued to be difficult to arrange due to the complexities of the criminal charges and bail conditions on the oldest child. MDB could no longer communicate with the mother and RB became increasingly resistant to seeing his mother.

[8] The child MXB was moved to Chatham to live with his mother, however, this arrangement did not last long. The father appealed the order of October 29 and Hockin J. granted a stay pending the appeal to the Divisional Court. The child MXB was returned to live with the father pursuant to this order of Hockin J. dated November 19, 2010. From November 19, 2010 until April 1, 2011, a period in excess of four months, MXB and RB resided with the father back at the matrimonial home in Strathroy. They saw their brother MDB within the complicated weave of the bail conditions and access orders of the Family Court. MXB continued to see his mother pursuant to the Family Court order and neither MDB nor RB saw their mother.

[9] In the first part of February 2011, the criminal charges against MDB were upgraded to include attempted murder of his mother. He was re-arrested and went through a bail hearing that spanned 18 days in the month of February 2011. He was incarcerated throughout that period and eventually released on stricter bail conditions. There was no explanation given at trial as to why the charges were increased to such a severe level. The father C.D.B. stated that he was of the impression that the Society and the police stated that if he tried to get new bail terms that would allow all three boys to be with each other without the stringent restrictions, the charges would be increased despite the fact that there was no new evidence since the original charges were brought against MDB on August 30, 2010, some five months earlier. None of the police assigned to the criminal investigation testified at trial to give any explanation as to why this increase in the charges took place.

[10] The father, C.D.B., testified that the mother L.D.B.’s brother, D.T., used to work at the Strathroy police Department and for a period of time worked with Detective McGuire, who was the lead investigator on the criminal investigation that led to the charges against the child MDB and the increased charges. Neither Detective McGuire nor L.D.B.’s brother, D.T., now an OPP officer, testified in this case.

[11] On April 1, 2011, Bryant J. granted the Society’s motion dismissing the father’s appeal of Vogelsang J.’s order of October 29, 2010. He also removed the stay and the child MXB was moved, yet again, to reside with his mother in Chatham, Ontario. The access between the children has continued to be a struggle. RB has rarely seen his mother and MDB continues to be unable to communicate with his mother due to the bail conditions and much later in the process a peace bond was put into place.

[12] At the time this trial started on October 13, 2011, the child MDB was still living with a surety. That changed in January 2012 as a result of a consent order between Crown and criminal defence counsel that amended his bail conditions to allow him to reside with his father. Since then, the children, MDB and RB, have resided with their father. The child MXB has resided with his mother and visits his father and brother at their home. RB and MDB continue not to see their mother.

[13] An assessment pursuant to s. 54 of the Child and Family Services Act was completed and filed shortly before the trial started. On the 154th day of the trial, I issued a written ruling that resulted in the assessment being declared to not be a proper assessment pursuant to the Child and Family Services Act, s. 54 and I did not allow the originally named assessor, Dr. Dan Ashbourne, to testify.

Some of the Legal Twists and Turns in this Hotly Contested Matter

[14] During the course of this trial, there have been numerous unique, complex and, in some cases, unprecedented voir dires and other arguments that have resulted in rulings on evidence that are unique to the very nature of this extreme conflict. Some of the these motions, requiring the extensive input of counsel, were:

a. motion for release of investigation material from Crown and police relative to the Youth Criminal Justice Act, S.C. 2002, c. 1 charges;

b. motion related to the admission of text messages that were on the child MDB’s cell phone and were photographed by his mother without his knowledge or consent;

c. motion for the admission of evidence of multiple audio recordings that were made by the father without the knowledge or consent of the mother;

d. motion for the admission of evidence, including video recordings taken by private investigators retained by the father for surveillance of the mother;

e. motion by the father for the production and use of certain diaries of the mother, summaries of which were reviewed by the mother during the course of her examination in-chief;

f. motion by the father for the production of the books and records of the mediator engaged by the mother and father from “closed mediation” and for the mediator to testify at trial;

g. rulings on the extent to which the Society could cross-examine a child who was the subject of their own protection application; and

h. rulings relating to the extent to which the seven counsel in this case could cross-examine a witness when they were not adverse in interest.

[15] These rulings represent some but not all of the complex legal issues that required the input of the legal representatives of these children. They also contributed to the extraordinary length of this trial. Many of the rulings were released in writing, some were given orally.

Complications that Contributed to the Extraordinary Length of These Proceedings

[16] The manner in which this case was conducted, from the date of filing pleadings until the commencement of the trial, significantly contributed to the extraordinary length of the trial itself. This in turn has an impact on the fact finding process, credibility findings and of course on the eventual options that are open to the court. Some of the factors that contributed to this complexity are as follows:

a. the lack of proper pleadings;

b. no pretrial questioning or discovery even when orders were granted for such questioning;

c. parallel processes of criminal charges and child protection;

d. three changes of interim custody of the youngest child; and

e. rigid positions taken with no reassessment of those positions as circumstances changed.

The Lack of Proper Pleadings

[17] Throughout the course of this trial, I made numerous references to the frustration and bind that the court was placed in by the lack of material facts that clearly define the issues. This was true in both the pleadings relating to the child protection application and the divorce application. The pleadings were replete with allegations that were not backed up by even a minimal statement of material facts that would be relied upon to support the allegations. Some significant examples from the protection application dated September 10, 2010 are:

Para. 11 a):

The mother indicated there were issues related to domestic violence during the interview. She stated that her relationship with C.D.B. was emotionally abusive, although not physically.

Para. 11 b):

The mother reported there had been an incident in February 2010 during which C.D.B. had allegedly threatened a friend of hers and a peace bond had been in place as a result.

Para. 20:

During the Society’s involvement both parents consistently spoke negatively regarding the other.

Para. 32:

The Society believes the children are in need of protection. The parents have clearly been embroiled in a contentious custody and access dispute to which the children have been exposed and involved. The Society is concerned regarding the impact of this situation on the emotional wellbeing of the children …

[18] The examples above are only a few examples of how the pleadings became allegations without material facts. C.D.B.’s answer gave particulars of his denials and specifics relative to claims of L.D.B.’s problems with alcohol. However, much of the answer in the child protection application dealt with the specific event of the allegation of assault by MDB on his mother on August 30, 2010.

[19] L.D.B.’s answer in the protection application claimed that C.D.B. was manipulating and alienating the children. Much of L.D.B.’s answer contained dated “allegations” of statements that L.D.B. claimed that either C.D.B. or MDB made to illustrate her allegation of alienation.

[20] There was never an amendment to any pleading. The allegations and counter allegations grew as motions and supporting affidavits seemed to expand the allegations relentlessly.

[21] L.D.B. claimed in her divorce application that her husband was “emotionally abusive to her” but no details of any kind were given to support this statement.

[22] L.D.B. swore her first affidavit within an ex parte motion that she brought in a divorce proceeding on April 23, 2010. L.D.B. portrayed herself to be the helpless victim of a husband who was controlling, abusive and coercive. Once again, no details were given.

[23] What the court was faced with was an ever growing amorphous blob of allegations that were followed by testimony of incidents never alluded to in any previous pre-trial pleading or affidavit.

[24] In Bemrose v. Fetter, 2007 ONCA 637, 42 R.F.L. (6th) 13, the Ontario Court of Appeal commented on this very frustration that is faced by the courts all too often. Gillese J. stated at para. 51:

[51] I begin with some general comments about the proffered evidence. It consists solely of Ms. Bemrose’s long, rambling affidavit which is filled with hearsay, sweeping statements and allegations of improper behaviour on the part of Mr. Fetter. There is nothing to substantiate the statements contained in the affidavit. It covers time periods before and after those covered by the orders under appeal. It raises matters which appear to have little, if anything, to do with the matters in issue on appeal. No attempt is made to relate the information to the matters in issue on appeal. Even if admissible, information of this sort presented in this way is not particularly helpful.

Lack of Questioning

[25] One of the significant problems in family law is that in the majority of cases all the court is presented with are “sweeping statements” and long rambling affidavits filled with hearsay. Coupled with mere allegations and little supporting facts, there is no order to the efficient and effective movement of these cases. They end up taking on a life of their own.

[26] While the Family Law Rules, O. Reg. 114/99 provide an exception for questioning in child protection matters, that does not mean they cannot occur when a court decides that it is necessary for the fair and proper conduct of a hearing. In this case, questioning was ordered by Henderson J. when certain private investigation surveillance videos and reports were revealed in an affidavit. Despite that order, no one submitted to questioning.

[27] Without details in any pleadings and without specifics being learned by tools such as questioning, this trial often became discovery within the trial. It would be easy to refuse to allow this to happen except for the fact that we are dealing with the welfare and protection of children. We are also dealing with extreme issues of whether or not a son may have tried to kill his mother and would pose a continuing threat to her and to his siblings. As a result, many of the increasing allegations and new testimony of facts never seen before had to be considered. Of course, this required easing certain restrictions to allow fair process.

[28] One example of the ever evolving incidents is the mother testifying for the first time at trial that she had real fear of her husband, as he told her on one occasion that he had murdered someone while he lived in Northern Ireland. This serious allegation was never brought up until the mother testified at trial. I will deal with this issue, among many others, later. I bring it up at this time only to illustrate the complications that occur when pre-trial processes are not proper or not properly taken advantage of.

Credibility

[29] Determining the credibility of certain witnesses relative to the material issues in a case is central to making findings of fact that I must make. In family trials, it is often very difficult to see through the fog that is created by litigants whose own reality is mostly altered by a combination of memory challenges, perspectives, emotion and sometimes purposeful deception. Seeing through that fog is challenging but absolutely necessary when the stakes are the highest they can be.

[30] Children have varying degrees of input to their fate in family litigation. Their future relationships with their parents, their extended family and their own siblings are being shaped and often they are only watching like spectators and often with an obstructed view. That is why all professionals who play a role in child protection and custody matters must perform their tasks in a thorough, objective and skilled manner. This includes assessing and reassessing their positions when appropriate. I will deal with this in greater depth later in these reasons. Suffice it to state, at this stage, I find that many professionals accepted allegations as fact without scrutiny and allowed themselves to be influenced and manipulated.

[31] I have approached this trial and the construction and analysis of these reasons with a heightened sense of my need to be vigilant about the assessment of the evidence and the credibility of the witnesses.

Factors in Determining Credibility

[32] In an article in the Advocates’ Society Journal published in 2002, Gloria Epstein J. gave some guidance on what factors should be considered by a court when dealing with what is often a challenging exercise (The Honourable Justice Gloria Epstein, What Factors Affect the Credibility of a Witness? (2002), 21 Advocates’ Soc. J. 1, at 10-16.):

Consistency

Whether a witness’ evidence is internally consistent is also a factor the courts use in assessing credibility. In F.H. v. McDougall, 2008 SCC 53[^1] Rothstein J. cited R. v. R.W.B.,[^2] which stated, “[w]hile it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence.”

Rothstein J. went on to state that in a civil context, a trial judge, “must look at the totality of evidence and assess the impact of the inconsistencies on that evidence on questions of credibility and reliability pertaining to the core issue in the case.”[^3]

The Context of the Totality of the Evidence

As confirmed by the Supreme Court in R. v. Gagnon, 2006 SCC 17,[^4] a trial judge’s assessment of credibility is given much deference because assessing credibility is “not a science”, and it is “very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” Assessing credibility can be even more challenging in the family law context, as recently noted by Ferguson J. in L.M. v. T.M., 2012 NBQB 238.[^5]

Credibility assessment in high conflict family court litigation often is problematic. Husbands and wives or partners who find themselves in such circumstances in many instances have singly or collectively girded themselves for an anticipated marriage break up for quite some time before separation occurs and litigation formally begins. That emotional resolve of each party is only increased when the custody of the couple’s children are the centrepiece of the dispute. Sadly, the conflict all too often deepens with each passing month of litigation.

Indeed, the credibility analysis is important in such cases because, as Rothstein J. stated in F.H. v. McDougall,[^6]

[F]inding the evidence of one party credible may well be conclusive of the results because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case.

OVERVIEW

[33] It is my intention to make assessments of credibility and findings of fact on material facts and issues as they are developed in these reasons. The multiplicity of the facts and issues that need to be analyzed and determined in this case are unusually high. The versions of these facts and issues given by the witnesses are often polar opposite. The Society and Barbara Hoover, counsel assigned to represent the youngest child, MXB, by the Office of the Children’s Lawyer, acted throughout this case as one party with very little, if any, adversity of interest. The lawyer assigned as counsel for the eldest child, MDB, acted as one with the father, C.D.B., with very little adversity of interest. The lawyer assigned as counsel for RB, Salim Khot, often took a neutral position or no position at all with respect to many of the submissions on the admissibility of the evidence. In his final submissions, Mr. Khot submitted that the child, RB, now almost 16, did not wish to see his mother. He also asserted that all of the children should spend as much time together as possible. He did not take a position relative to many of the findings of fact that I needed to make in this matter.

[34] The only child to testify was the eldest child, MDB.

Background and the B. Family’s Early Years

[35] The father, C.D.B., age 53 and the mother, L.D.B., age 47, met at some point in 1987, when C.D.B. was visiting Canada. C.D.B. was a British citizen from Northern Ireland and residing in England. L.D.B. was a Canadian citizen residing with her parents in Chatham, Ontario.

[36] Later in the summer of 1988, C.D.B. and L.D.B. met again while L.D.B. was travelling in Europe. They started their relationship and were married in Chatham on March 24, 1990. Shortly after their marriage, they moved to England where they both worked and eventually started a family. They first lived in Liverpool. C.D.B. was a mechanic by trade. He worked on race and rally cars for various companies. He traveled a lot for his work and was away for significant periods of time. When he was away, L.D.B. got a job in administration in a law office. She also took a course in medical administration. C.D.B. obtained employment with the racing division of Ford Motor Company in the south of England. L.D.B. obtained employment at various airports in London and other parts of England. She also worked in retail and in a restaurant/pub from time to time.

Life in England

[37] Their first child, MDB, was born in England on […], 1994. Their second child was born on […], 1997, also in England. L.D.B. stated that C.D.B. travelled a lot and was away for a period of six months to Europe, Australia and New Zealand. Her maternity leave was only for a period of 12 weeks and she went back to work as a personal assistant to a general manager. She could work from home for two days and one day at the office. She also had the child in a daycare. When the child, MDB, was a toddler, according to L.D.B. he was a “joy”, a “happy ball of fun.” She stated that C.D.B. loved him and when he was home things were good. He would play with the child outdoors and L.D.B. would do crafts inside with him. L.D.B. complained that C.D.B. did not like the mess that was created, so he refused to allow her to have play-doh in the house. L.D.B. said she would keep a “secret stash” hidden away. According to L.D.B., C.D.B. found some play-doh once and gave her his “evil face” that was scary.

[38] L.D.B.’s testimony at the trial was almost completely void of anything positive about C.D.B. Her constant theme was that he was abusive, controlling and coercive. She described her life from the date of her marriage to C.D.B. as one in which she could not exercise any free will. L.D.B. gave numerous examples of her life in England immediately after their marriage. According to her, she was not allowed by C.D.B. to shop for any items, including clothes for herself, without first getting his permission and final approval once she made any purchase. She stated that she would have to come home and show her purchases to her husband and, if he did not approve, she would have to take them back.

[39] One of her most extreme examples of C.D.B.’s abusive control – that she testified at this trial about but made no reference to in any pleading or affidavit until her testimony – while they lived in England, was her allegation that he refused to allow her to keep any new shoes that she purchased unless she first had sex with him while she wore the shoes. She stated that on one occasion she did not do this and he put the shoes in the shoe box on the mantel with a note that stated that she knew what she had done and she knew she could not keep these shoes.

[40] L.D.B. learned she was pregnant with their second child on MDB’s second birthday. This pregnancy had some difficulties and L.D.B. needed a lot of rest. Her mother came to visit and help out for a period of approximately three weeks. L.D.B. testified that she was embarrassed for her mother. According to L.D.B., C.D.B. would not even drive her to the store for groceries and she claimed C.D.B. treated her mother like a servant. L.D.B. stated that, although C.D.B. still travelled a lot for his work, when he was home he was very moody. She stated that C.D.B. would go from anger to just wanting to sleep all the time. He eventually stopped working in 1998. C.D.B. denied L.D.B.’s version of these events. He claimed that he and his wife did everything together when he was home and they were both loving and caring spouses and parents. She had access to a joint bank account and he did not control her financially or by dictating what she could or could not purchase.

[41] C.D.B. denied that he controlled L.D.B. in any way. He specifically denied the shoe allegation and the control she claimed he exercised over her relative to all forms of shopping. He stated that throughout a substantial part of the time that they lived in England, he was in Europe a lot during the week as part of his job as a mechanic on the race car circuit. According to C.D.B., L.D.B. had access to the joint bank account and her own credit card. She had her own friends and had frequent contact with them. She often made the home purchases and purchases for herself without his knowledge or any need to have his approval or consent.

[42] C.D.B. testified that after his retirement he was the primary caregiver in the home for the young children as his wife worked full time. L.D.B. testified that, although her husband was not working, he was not the primary caregiver. This will be addressed later due to the conflict in the evidence and the very different versions of their family life.

[43] C.D.B. and L.D.B. decided to move to Canada in 2003. As with most of the evidence in this matter, they even disagreed on the reasons for the move. Suffice it to say, one consideration for the move was both L.D.B. and C.D.B. projecting that the climate in Canada would be better for L.D.B.’s arthritis than the climate in England. In addition, the decision to move would place L.D.B. closer to her family, who all lived in Ontario.

[44] The witnesses who corroborated the allegation of L.D.B. with respect to control by C.D.B. relative to shopping while they lived in England was L.D.B.’s mother and to some degree her sister, P.. I find that most of P.’s testimony relative to the B.’s family life in England was a recitation of what her sister told her. She had little to no contact with the B. family while they lived in England and only brief contact when the B. family came to visit in Canada. L.D.B.’s mother admitted they did not visit L.D.B. and C.D.B. often. I find that L.D.B.’s mother was so aligned with her daughter that she presented as rigidly biased in a negative way against C.D.B. Her testimony in direct examination was often a planned recitation of some events that would paint C.D.B. as controlling in the extreme. However, in cross-examination, she admitted that she did not have many opportunities over the approximately 12 years her daughter and son-in-law lived in England to actually observe their interaction as a family and as parents. I reject much of her evidence. I will further elaborate on her lack of credibility later.

[45] L.D.B.’s evidence of abuse, coercion and control is not consistent with other witnesses who testified about the family’s life in England or in Canada. It was also not consistent with the strength of character that L.D.B. demonstrated in many other parts of the evidence that will also be detailed later in these reasons.

[46] When C.D.B. was challenging the terms of his retirement from Ford, it was L.D.B. that pursued that appeal with relentless determination. It was largely as a result of her determined pursuit that C.D.B. was given the retirement terms that were satisfactory to L.D.B. and C.D.B.

[47] L.D.B. and C.D.B. went on numerous holidays while they were living in England and some of those holidays included L.D.B.’s parents, who came over to England and Northern Ireland to visit on two occasions. L.D.B. travelled back to Canada to visit her family with C.D.B. and the children and on her own on a couple of occasions.

[48] I find that the decision to move from England to Ontario was largely for the benefit of L.D.B. She had arthritis and it was thought that the weather in Canada would be better than the constant dampness of England. Her family would be close by. C.D.B.’s only family would be even farther than they were from England to Northern Ireland.

[49] C.D.B.’s sister, B.B., and her husband, D.B., both came from Northern Ireland to testify at this trial. I found both B.B. and D.B. to be credible and sincere in their testimony. They were obviously protective of C.D.B. and I am factoring in their closeness to C.D.B. in my assessment of their evidence and credibility. However, both of their testimonies had the ring of truth and reality as they related to the everyday life of C.D.B., L.D.B. and the children while they had the opportunity to observe them in England. When C.D.B. and L.D.B. lived in England, they often saw C.D.B.’s sister and brother-in-law, B.B. and D.B. C.D.B. and L.D.B. went to visit them in the Isle of Man or Northern Ireland and sometimes B.B. and D.B. would visit them in England. They described C.D.B. and L.D.B. as such a loving and affectionate husband and wife, who were completely devoted to their children. B.B. described L.D.B. in such glowing terms that she referred to her in an email that she sent to L.D.B. on February 27, 2010 as “mother earth.” She stated: “L.D.B., you know you have always been ‘mother earth,’ I have had such strong admiration for you as a mother. You have been so dedicated as both and always thinking about what is best for your children, all of sudden you seem prepared to screw them up mentally, I cannot for the life of me understand.” Later in that same email B.B. wrote: “… my concern for you all is very, very genuine especially for my brother and I give you my assurances that now that I will not see him being blamed in the wrong. I will take whatever measures I think necessary in this situation.” After B.B. further expressed dismay at such an unexplained change in L.D.B., she stated: “Just can’t believe it! That’s not the L.D.B. that I know and love. I have seen you through 20 years of marriage and as I have previously said, my admiration for you has been immense.”

[50] When B.B.’s husband, D.B., testified, he stated that he was helping C.D.B. with both living and legal expenses for this trial. At the time he testified, near the close of the evidence, he had provided C.D.B. with the combined legal and living expenses totalling approximately $1,500,000.

[51] L.D.B. has close friends who live in England. F.S. and P.S. became friends with C.D.B. and L.D.B. while they lived in England and during the early part of their marriage. They saw each other frequently during this period. I found it strange that C.D.B.’s friend, F.S., travelled from England to visit L.D.B. in Strathroy, Ontario while C.D.B. and their two older boys were in England in the crucial time period of early April of 2010. F.S. visited L.D.B. at the very same time C.D.B. and the two older boys were in England staying at the S. home. I find the timing of this to be very curious because it appeared that, although they seemed to be extending the hand of friendship to C.D.B. and his two boys, F.S. was with L.D.B. while she was preparing to take C.D.B. to court on an urgent ex parte basis. F.S. subsequently monitored the child MDB’s Facebook page and sent L.D.B. a copy of some of MDB’s Facebook notations that had numerous references of foul language used by the child. She was clearly an ally to L.D.B. in support of the positions that she was taking in this litigation.

[52] Despite her ability to travel to Canada at a time when L.D.B. was planning to bring this matter to court, F.S. did not testify at this trial. There were no requests by L.D.B. to allow her to testify either by video or other electronic means in order that she might corroborate any of L.D.B.’s versions of what an awfully controlled and abusive life she had when their family lived in England.

[53] I find that F.S. could have and should have testified. There was no explanation as to why this witness was not called. I draw an adverse inference that she did not.

Family Life after their Move to Canada from 2002 until 2009

[54] C.D.B. never worked fulltime outside of the marriage after he retired from Ford. Upon their move to Canada in 2002, they lived for a short period of time with L.D.B.’s parents in Chatham. They then purchased their matrimonial home in 2002 at H[…] Boulevard., Strathroy, Ontario. C.D.B. stated that they used the money from the sale of their home in England to purchase this home in Strathroy. L.D.B. claimed that she was not aware of the finances and, according to her, C.D.B. controlled all of the finances. This will also be referred to later, as the conflict in the versions of each of them differs drastically.

[55] C.D.B. and L.D.B. had their youngest child, MXB, on […], 2005. C.D.B. stated that he continued to be the primary caregiver as his wife obtained a part time job as a medical administrator in the department of neurology at London Health Sciences Centre.

[56] The family lived in the matrimonial home with their children until the end of May 2010. L.D.B. stated that she had expressed to her husband in January 2010 that she no longer wanted to be married to him. C.D.B. testified that no such conversation occurred. He stated that, although there were difficulties in the marriage in the last couple of years leading up to the winter and spring of 2010, they were still trying to make their marriage work.

[57] The testimony of A.C., S.R., R.H. and his wife A.H.1, all painted a picture of L.D.B. and C.D.B. having a relationship that was the exact opposite to the picture L.D.B. provided in her testimony. They all described C.D.B. and L.D.B. as loving and affectionate toward each other. They all asserted that C.D.B. and L.D.B. were so dedicated to their children that the H.s often expressed to each other that they would try and model their parenting after C.D.B. and L.D.B. All of these witnesses described C.D.B. and L.D.B. as inseparable, loving and so much fun to be with.

[58] A.C. and her husband became friends of C.D.B. and L.D.B. They socialized at each other’s homes from 2002 until 2007. L.D.B. and A.C. started to go to the gym together as frequently as two to three times per week during that period. According to A.C., over that five year period of time, L.D.B. never expressed any concerns about being abused, coerced or controlled by her husband. She never expressed fear, nor did she act fearful of her husband.

[59] The exact same description was given by both A.H.2 and A.H.1 about their observations of L.D.B. and C.D.B. They also described the B. children as terrific boys, who were always respectful to adults and loving and caring to each other and their parents. The constant references to C.D.B. and L.D.B. as being so loving, caring and respectful of each other was in stark contrast to the testimony of L.D.B., her mother and her sisters. I find it most significant that no other witnesses were called on behalf of L.D.B. to corroborate her testimony that she was the victim of domestic violence, abuse and control by C.D.B. Any witnesses called by L.D.B. to corroborate her testimony of her being such a victim came from either the two men she was having affairs with or her mother and her sister. Any of the professional witnesses L.D.B. called only knew L.D.B. as a victim, according to information given by L.D.B. to them.

[60] L.D.B. and her mother, E.T., both testified that the control by C.D.B. continued after the move to Ontario from England. L.D.B. stated that C.D.B. would not allow anyone to use the front door or the garage. E.T. stated the same thing in her evidence. However, this was not corroborated by any other witness. A.C., R.H., A.H.1 and A.H.2 were all frequent visitors at various times to the home of C.D.B. and L.D.B. Each one of those witnesses testified that they always used the front door. In fact, they all seemed surprised that the question was even asked. The child MDB was asked the same question and was also surprised the question was even asked. He stated that they would use the front door but often used the back as it was easier and more convenient if they were bringing something inside like groceries. He did not confirm that anyone was under any restriction on the use of the front door or garage.

[61] L.D.B.’s mother, E.T. also testified that she never saw C.D.B. hug or tickle his children or even read to them. It was not until cross-examination that she admitted that she did not attend their home that often and she and her husband went to Florida for six months of every year. I find that E.T. was simply not credible.

[62] The most egregious example of her lack of credibility came when she stated during her testimony that she had heard that her daughter was caught on tape swearing at the children. This immediately rang alarm bells as E.T. could not have known this unless she talked to someone about the evidence. I had issued a witness exclusion order at the outset of the trial. E.T. stated that she learned about the tapes about ten days prior to her testimony. This placed that knowledge at the same time that her daughter L.D.B. was in cross-examination and subject to my order not to talk to anyone about her evidence.

[63] E.T. denied that she talked to her daughter about the evidence. At first, she insisted multiple times that she could not recall where she got the information, despite the fact that it was only ten days earlier. At the time, I informed her that I took this matter very seriously and wanted her to think about where she got the information over the lunch break. After lunch, she stated that she thought about it and recalled that she overheard her daughter talking to her counsellor on the telephone one night after she had testified that day. She stated that she heard her daughter state that she was upset that there were recordings played in court that caught her swearing at the children.

[64] L.D.B. gave similar evidence. She stated that she felt so bad about hearing her voice in court that she needed to call her counsellor and tell her about her feelings. I ordered the counsellor to testify about this phone call only. The counsellor stated that she is the one who called L.D.B. about something unrelated to the case. This contradicts L.D.B.’s evidence, who stated that she called the counsellor in order to talk about her feelings. The counsellor testified that it was during the conversation that L.D.B. stated that she was feeling bad about the evidence but very significantly made no mention of recordings being played in court that captured her swearing at the children.

[65] C.D.B. denied that he was ever abusive and controlling towards his wife. According to C.D.B., he and L.D.B. were loving and respectful of each other and, until the fall of 2009, there was no indication that their marriage was in trouble. C.D.B. indicated the problems that started to surface in their marriage found their roots in L.D.B.’s increased consumption of alcohol. According to C.D.B., this started in or around 2007. I will elaborate further later in this judgment on the issue of the use of alcohol.

[66] I find the evidence of A.C., R.H., A.H.1 and A.H.2 to be sincere, real and very credible. None of these witnesses had any axe to grind. They all painted a very similar picture of the household of the B. family – open, loving, caring and almost always doing things as a family.

[67] A.C. and her then husband, J.C., lived close to the B. family from 2002 to 2008. A.C. stated that she and her husband were friends of C.D.B. and L.D.B. and they often socialized together. They usually spent time at C.D.B. and L.D.B.’s home but they also spent time with them in their own home. According to A.C., L.D.B. became even closer to her as they went to the gym together two and sometimes three times per week. A.C. described the B. family as very close and loving. She stated that she always observed the relationship of C.D.B. and L.D.B. as playful, respectful and loving. She never observed C.D.B. to be critical or controlling of L.D.B. She also stated the L.D.B. never expressed any concerns to her about C.D.B.’s treatment of her or the children.

[68] A.C. described L.D.B. and C.D.B. as “great parents” and both parents as being very dedicated to their children. According to her, both of them shared the parenting and household tasks. She stated that they worked well as a “team.”

[69] A.H.1 and A.H.2 also testified. Like A.C. and J.C., I was most impressed with their candor. They related their evidence in a straightforward manner that had the ring of reality. They were also not aligned as advocates with anyone. Simply put, they told it like it was.

[70] They were neighbours in Strathroy from 2003 to 2008. They even continued their contact after they moved out of the area. When they lived in Strathroy, they became close friends with both L.D.B. and C.D.B. They were often in contact with them daily. They socialized in each other’s houses. A.H.1 stated that she became close with L.D.B. They often went shopping or just spent time together talking. She stated that during her extensive contact with L.D.B., she never observed any behaviour on the part of C.D.B. of a controlling or critical manner. According to her, L.D.B. never expressed any concerns to her about the way in which C.D.B. treated her.

[71] According to both A.H.1 and A.H.2, they spent a lot of time in the B.’s home and they were always made to feel welcome. Both of these witnesses described the B. family as “very close and loving.” They stated that C.D.B. and L.D.B. were affectionate to each other and to their children. They described both as good parents whose lives were focused and dedicated on their children. What stood out in their testimony was the view that both expressed that they were so impressed with L.D.B. and C.D.B. as parents, they viewed them as model parents whom they wanted to emulate.

[72] It was very clear to me that both A.H.1 and A.H.2 became close to the B. parents and to their children. They described the children as being behaved, respectful and a pleasure to be around. They described these children as being very close and loving to each other.

[73] G.V. testified as part of C.D.B.’s case. He is an accountant by profession. He came to know the B. family through MDB’s involvement with soccer. G.V. was a soccer coach in London, Ontario. He coached MDB for the summer and winter leagues for 2007, 2008, 2009 and part of 2010. The team travelled a lot to both Windsor and Toronto. They socialized together and went out for dinners. G.V. also went to the B. family home for a dinner one occasion and their friendship grew. G.V. and his wife also babysat the B. children on one occasion when C.D.B. and L.D.B. went to England.

[74] G.V. described the children, MDB and RB, to be extremely well behaved and well mannered. They played well with his children. He described the B. family as loving and close. He stated that both C.D.B. and L.D.B. doted on their children and were very affectionate toward them.

[75] He characterized C.D.B. and L.D.B. to have a very good relationship and he never saw C.D.B. to be controlling or coercive to L.D.B.

[76] Much of the descriptions of the B. family given by this witness were strikingly similar to those given by the other witnesses called by C.D.B.

[77] G.V. also testified that in or around December 2010, he sent out an email to all parents whose children were on his soccer team asking about their intentions relative to the upcoming season. G.V. stated that he received an email reply from L.D.B. stating that MDB would not be playing with the team for the next season as the B. family was most likely moving back to England. This testimony contradicts the testimony of L.D.B. that she had no intention of moving to England and that the marriage was not salvageable at this stage.

The Events from December 2009 to August 30, 2010

[78] In December 2009, C.D.B. had to undergo back surgery. During the month of December, he had severe pain and limited mobility. He was on pain medication and he mostly stayed in the lower level of the house in order to accommodate his lack of mobility. His operation was on January 9, 2010. After that date, multiple events occurred that caused this family structure to implode.

[79] C.D.B. testified that, in the fall of 2009, he and his wife had been planning to move the family back to England. He stated that their reasoning was primarily to accomplish two things. One was that his wife, who had a form of arthritis, was finding the Canadian winters hard on her joint pain. They had originally come to Canada thinking the wet conditions in England were harder on L.D.B. but, after living in Canada for seven years, they realized it was worse in Canada for L.D.B.’s condition. L.D.B. does not agree that she ever agreed to move back to England. She testified that she only went along with certain of the plans because she was afraid of C.D.B.

[80] According to C.D.B., the second reason for the move back to England was that their eldest son, MDB, was a superior soccer player who had a potential future in soccer in England. MDB and his father had gone to England for a soccer tryout in January 2009. This resulted in MDB being invited back for a second soccer tryout that was, in essence, moving his potential to the next level of consideration for an eventual career in professional soccer.

[81] I find that both C.D.B. and L.D.B. entered into plans to move the family back to England starting in or around the fall of 2009. L.D.B. admitted she was making both inquiries about homes in England and Northern Ireland on the internet and by communicating with her sister-in-law, B.B., who resided from time to time in one of her homes in Northern Ireland. She also talked to B.B. about potential jobs in the United Kingdom. According to B.B., the primary expressed goal of C.D.B. and L.D.B. for the move was to advance their son MDB’s soccer career.

[82] Although their house in Strathroy was listed for sale in November 2009, C.D.B.’s back condition did not lend itself to keeping the house in marketable state. According to C.D.B., they did not renew the listing when it expired at the end of January 2010. L.D.B. stated they did not renew the listing as she had told her husband in January she would not move to England and no longer wanted to be married to him. C.D.B. denies that L.D.B. told him she no longer wanted to be married to him in January 2010. He claims that their plans to move were not off the table by the time that he went back to England. In this regard, G.V., a soccer coach for MDB in 2007, 2008 and 2009, contacted all the parents of the soccer team members in or about December 2009. He stated that L.D.B. emailed him to tell him that MDB would not be playing in the next season as the family was moving to England. I accept C.D.B.’s evidence that he started to have concerns that his wife was staying away from the home more often than she used to. She went to work earlier and, according to C.D.B., was dressing more provocatively. She stayed out later and often went to the gym, in addition to going to work.

[83] C.D.B.’s concerns culminated into reality when he saw multiple emails on the family computer that revealed that she was having an affair with Dr. N., who worked in the same neurology unit that she did at the London Health Sciences Centre Hospital (“LHSC”). As elaborated on in the next paragraph, surreptitiously taken audiotapes taken by C.D.B. revealed that L.D.B. continued to support her husband after this affair was revealed and after he was charged with threatening Dr. N.

February 2010 Criminal Charges Against C.D.B.

[84] One of the significant contributing factors to the tragic events that enveloped this family occurred in February 2010. According to C.D.B., his wife left her email open on the family computer on or about February 8, 2010. He noticed this late in the night of February 8 and into the early morning hours of February 9, 2010. C.D.B. read what he referred to as multiple and shocking emails between his wife and Dr. N., who was the incoming Chief of Neurology at the LHSC.

[85] On February 9, 2010, C.D.B. and L.D.B. drove their son MDB to his personal trainer appointment in London, Ontario. They dropped their son off at this appointment and, according to C.D.B., they sat in their car in the parking lot of a local restaurant. It was at this time that C.D.B. stated that he told his wife that he read these emails. C.D.B. also stated that L.D.B. admitted to having this affair but told him that it was over. C.D.B. stated that he and his wife were very emotional. They did some crying but in the end they resolved to try and work things out for the sake of the children. As MDB was not finished his workout, they went into the restaurant and C.D.B. stated that he ordered a double vodka for L.D.B. while they waited for their son. C.D.B. said that he may have had water but he denied drinking alcohol. When their son arrived at the restaurant, C.D.B. stated that he drove to a mall in the north end of London with L.D.B. and their son, MDB, in the car as passengers.

[86] C.D.B. testified that they arrived at Masonville Mall at or around 6:30 p.m. According to him, he intended to go into the mall and go to a cellphone establishment in order to get one of the children’s cellphones fixed. He stated that he was then going to meet his wife and son at the grocery store across the street. He testified that once his wife and son left, and while he was walking toward a mall entrance, he realized that he did not have his wallet. By this time, his wife had left and he proceeded to walk from the mall to the street that he would have to cross. C.D.B. stated that while he was walking toward the crosswalk, he saw what appeared to be Dr. N.’s car. He stated that he knew it was his car because he had seen it on a previous occasion. It was distinct because it had special aluminum alloy wheels.

[87] As he proceeded to walk toward the grocery store, he decided to go into the Chapters store that had a Starbucks adjoining it. He knew that, as his wife was known to stop and get coffee at that Starbucks, he suspected that Dr. N. may have also gone to that Starbucks. According to C.D.B., when he entered the store he saw his son, MDB, his wife and Dr. N. all standing together near the magazine rack of the Chapters store. C.D.B. stated that he approached Dr. N. and asked to speak to him. They moved approximately 15 feet away from his wife and son and he told him to stay away from his family. C.D.B. stated that he knew about the affair and had read the emails. He stated that he gave him a disc of the emails that he had made. C.D.B. stated that after he did that, Dr. N. left the store and that was the extent of the interaction between them.

[88] There was cross-examination of C.D.B. relative to how he ended up going from the mall to the Chapters store. L.D.B. testified that he forced her to lure Dr. N. to the Chapters store in order to threaten him. I reject her testimony in this regard. I accept the version of events given in testimony about this incident by C.D.B. and the child MDB. Both Dr. N. and L.D.B. were inconsistent in their testimony relating to this important event.

Dr. N.’s Version of Events

[89] Dr. N. testified in these proceedings. I will deal with his testimony and my assessment of his credibility at this stage as it is essential to my findings on these material facts.

[90] By February 2010, Dr. N. was about to be appointed as the Chief of Neurology at the LHSC Department of Neurology. L.D.B. worked as a medical administrative assistant for another neurologist in the same department and she had worked in that capacity since approximately 2005.

[91] Dr. N. had seen C.D.B. in his capacity as an on call neurologist sometime in 2009. At that time, C.D.B. had something wrong with his elbow and he attended at the hospital for some tests. Dr. N. interpreted those tests and had a brief consultation with C.D.B. about it. At no other time did Dr. N. act as C.D.B.’s doctor.

[92] Dr. N. saw the child MDB on January 7, 2010 at the hospital where both Dr. N. and L.D.B. worked. L.D.B. brought MDB in to see him for a consultation as a result of noticing a twitch that had developed in his face. Both C.D.B. and L.D.B. were concerned as they learned that MDB had engaged in a game of choking to the point of passing out with some of his friends. MDB did pass out and the twitch became obvious as time went on. C.D.B. claims that he had no knowledge that L.D.B. was taking their son to see Dr. N.

[93] Dr. N. testified that he was on his way to watch his daughter’s hockey game on the evening of February 9, 2010 when he received a page from L.D.B. asking him to meet them at a Starbucks to take a look at her son MDB, as she claimed that his symptoms had gotten worse. He met both L.D.B. and her son MDB at the Chapters store at approximately 6:45 p.m. MDB stated that he was surprised that Dr. N. was asking him about his twitch as he did not feel things had changed or gotten worse and no one had told him that Dr. N. would see him again.

[94] According to Dr. N., he started to talk to MDB when he saw C.D.B. enter the store and approach him. According to Dr. N., C.D.B. was very loud, vocal and swearing. He stated that C.D.B. produced a piece of paper that had on it a man wearing a balaclava and holding a gun. He testified that C.D.B. threatened him by telling him that this is what is going to happen to him and his family. Dr. N. also stated that C.D.B. gave him a CD. He claimed that he never looked at the CD and merely assumed it contained emails between him and L.D.B. He stated that he left the Chapters and, as he was outside, he heard someone banging on the window and when he looked he saw C.D.B. at the window making a slashing movement at his throat.

[95] Dr. N. stated that the whole conversation with C.D.B. took approximately three to five minutes. According to Dr. N., after this incident he drove to his daughter’s hockey game. He arrived at his home approximately one hour later. When he arrived home, he stated that his son gave him an envelope. In the envelope was a picture. On the top half of the picture there was a person wearing a balaclava with Dr. N. written above the person with the balaclava. He claimed that he did not recognize the person in the picture. Dr. N. went to a friend’s home, who was an RCMP officer. After discussions with him, he called the London Police Service and that resulted in charges being laid against C.D.B. for, among other things, threatening to cause physical harm.

[96] C.D.B., MDB and L.D.B. all gave testimony relative to this incident. C.D.B. denied that he threatened Dr. N. other than to tell him to stay away from his family. He stated that he and his wife did attend at Dr. N.’s home later that evening; however, it was only to drop off a note from L.D.B. stating that she did not want to have anything to do with him in the future.

[97] MDB corroborated much of C.D.B.’s version of the events. He stated that his father came into Chapters and asked to speak to Dr. N. and they walked approximately 15 feet from where he and his mother were standing. He did not hear what they said. However, he did not see any angry gesturing, nor could he hear any shouting, yelling or swearing. He also did not see his father waiving any paper at Dr. N. MDB also stated that after Dr. N. left Chapters, he just left the building and no one pounded on the window or made a gesture with their hands of slicing their throat. MDB also stated that he was surprised that Dr. N. showed up at Chapters. According to MDB, his symptoms had not gotten worse and when Dr. N. asked him how he was, he looked at him strange and told him that he was fine.

[98] L.D.B. gave so many inconsistent versions of this event that her testimony is extremely incredulous. Much of what L.D.B. testified to relating to this event was inconsistent with statements that she had given to the police, her employer and notes that were given to C.D.B.’s criminal defence lawyer. What was consistent in her testimony at this trial was her constant refrain that whenever she said something previously to anyone that supported her husband, it was only because she feared him and she was merely towing the party line to please her husband.

[99] I will comment in more detail on L.D.B.’s credibility issues later in these reasons. Suffice it to state, at this point, that she did not contradict herself on one very significant detail about this event. She stated that she did not hear what her husband said to Dr. N. on this occasion; however, she did not hear any shouting or swearing as Dr. N. had claimed. In addition, no other witnesses were called to corroborate Dr. N.’s testimony that C.D.B. was angry, shouting and swearing. This was a busy store at a busy time in the day. Everyone agreed in their testimony that there were many patrons in the store and in the vicinity where the alleged event was supposed to have taken place. The fact that no other witnesses were called to corroborate the claim of Dr. N. that C.D.B. had acted in an angry, swearing and shouting manner and waiving a paper that was a picture of a man with a gun and balaclava raises a red flag about his testimony. When taken together with the fact that neither L.D.B. nor MDB testified that C.D.B. acted in the manner Dr. N. described, nor did they confirm that C.D.B. was waiving this threatening picture, I conclude that Dr. N.’s testimony about this threatening incident is not believable.

[100] The versions that were given by Dr. N. and L.D.B. must also be looked at under the backdrop of the relationship they were having at the time. L.D.B. stated in her testimony that she did have “intimate sexual encounters” with Dr. N. over the time period from the end of December 2009 until sometime in February 2010. Their intimate relationship carried over the time that her husband C.D.B. was being treated for his back problems at the hospital that both L.D.B. and Dr. N. worked at. L.D.B. admitted in her testimony that she had an intimate sexual encounter with Dr. N. in his office area the same day that her husband had been operated on for his herniated disc.

[101] During his direct examination, Dr. N. stated that he only had a “juvenile flirtation with L.D.B.” He claimed that the numerous emails between himself and L.D.B. only amounted to flirtatious conduct. He initially denied any sexual contact with L.D.B. However, when confronted with L.D.B.’s testimony that she had intimate sexual encounters with him, his testimony changed to “we may have fondled each other over clothing.”

[102] He denied that either he or L.D.B. was ever undressed during any of these encounters. However, in cross-examination, Dr. N. was confronted with multiple emails between himself and L.D.B. One of the emails sent to him by L.D.B. dated January 14, 2010 read: “I should be embarrassed for my willingness to undress in your presence but you are a bit like one of those snake charmers. Your hands start moving and clothes start undoing. …” When confronted in cross-examination with that email and others between him and L.D.B. of a similar nature, Dr. N continued to misrepresent the extent of the relationship he was having with L.D.B. The email stream between L.D.B. and Dr. N. between January and February 2010 suggested that there was a strong developing romantic and sexual relationship between Dr. N. and L.D.B. When taken together with other evidence, I draw the inference that L.D.B. and Dr. N. were sexually intimate and reject his evidence that they were merely flirting with each other.

[103] I fully recognize that conduct should not be a consideration when considering custody issues. However, the relevance of this evidence is that L.D.B.’s conduct in these two months had a significant impact on her family and direct impact on the children. I find that she was having this affair with Dr. N. at a time when Dr. N. had seen her eldest son MDB for neurological issues. This in itself is very problematic. In addition, L.D.B. worked in the same department as did Dr. N. and, at the time they were having this affair, he had been selected as the Chief of the Department of Neurology in which L.D.B. was working as an administrative assistant to one of the staff neurologists. Dr. N. attempted to assert in his testimony that he was not the Chief of the Neurology Department in January and February of 2010. Once again, in cross-examination, he was confronted with a copy of Clinical Neurological Sciences news release from the University of Western Ontario that stated: “At the January 14, 2010 Division of Neurology Meeting, Dr. N. was nominated by his peers as the Chief of their Division.” Dr. N. claimed that he was only nominated and the position did not start until later spring. I find that Dr. N. made every effort to downplay conduct on his part and calls into question his credibility and his motive to misrepresent the facts.

[104] I also reject Dr. N.’s evidence that it was somehow acceptable for him to see the child MDB “off the books” so to speak. He claimed that he was only doing a favour for a friend when he saw MDB and that this “off the books” and off the record type of thing is done all the time. He claimed that when that happens, there is no need to keep records and that is why he had no medical records of his examinations and any diagnosis or prognosis relative to the child MDB. The Policy Statement #5-05 of the College of Physicians and Surgeons of Ontario was filed as exhibit 183 at trial. It read: “Physicians are obligated to make records for each of their patients … Every patient encounter must be documented and dated in the medical record.” There are no exceptions for “off the record involvement of a medical doctor” for friends or relatives. If this type of thing is done all the time, as claimed by Dr. N., it should not be done. One of the reasons for proper medical recordkeeping by a heath care professional is to have a complete and accurate record of any examination at the time it is done and any diagnosis, prognosis and treatment suggested. This is essential for the proper care and future care of a patient. It is very concerning that this doctor did not record his observations, diagnosis, prognosis or suggested treatment of a child, who had a potential neurological deficit as a result of the child fainting while playing a choking game with friends.

[105] I find that Dr. N. and L.D.B. were having intimate sexual encounters over the time period from at least January through to February 8, 2010. I find it extremely concerning that Dr. N. saw this child, MDB, professionally, while he was having sexual relations with the child’s mother and to not record his observations, diagnosis and any treatment suggestions. This conduct is so egregious that I view his testimony around the alleged threat charges against C.D.B. to be so caught up with his need to protect himself, with respect to his professional career and his family that his testimony must be looked at with serious suspicion.

[106] Dr. N. also wrote a prescription for Percocet for C.D.B. at the request of L.D.B. in December of 2009. C.D.B. testified that he did not ask for them, he did not take them and he was not aware that L.D.B. had asked for them. He stated that he already had pain medication from his own doctor. Dr. N. testified that he also did this off the record for a friend. He did not contact C.D.B.’s doctor, nor did he see C.D.B. prior to giving the prescription. In my view, Dr. N. breached so many fundamental ethical rules as set out above that his testimony is clouded with the mist of his need to protect himself. I find that Dr. N. has no credibility when it comes to what he alleges occurred on February 9, 2010. C.D.B. was arrested, charged with threatening, detained and let out on bail with his wife L.D.B. being his surety. This had a significant impact on the B. family. The oldest children became aware of the events and their father’s challenges, and this had an impact on their inner turmoil. However, this turmoil got even worse for the children over the months of February, March and April of 2010.

L.D.B. becomes C.D.B.’s Surety Re the Threatening Charges

[107] C.D.B. was charged with threatening Dr. N. on February 10, 2010. The police came to the B. family home early in the morning. C.D.B. was asked to go into the garage of the home and talk to the police. It was at that point that he was formally charged. C.D.B. got some clothes and was taken away by the police. MDB stated that he had started to walk to the school bus on a very snowy day and returned as he thought the bus might be cancelled. On his return, he saw his father being taken away by the police. There is no doubt in my mind that at least the two eldest children were aware that their father was arrested. He spent two nights in jail and, over that time period, L.D.B. was busy arranging to hire a criminal lawyer for her husband. She engaged the services of a criminal lawyer, J.L. She met J.L.’s assistant, M.A., at her husband’s bail hearing on February 11, 2010.

[108] M.A. testified that she became aware that L.D.B. wanted to be her husband’s surety. When she met her at the courthouse, it appeared to M.A. that L.D.B. was anxious to get her husband home. She also testified that L.D.B. and C.D.B. appeared to be very close and caring for each other during this time at the court.

[109] M.A. stated that she explained the responsibilities of being a surety to L.D.B. She felt that L.D.B. understood her role as a surety. She was aware that she had a duty to ensure that all of the terms of the bail conditions were met and that she must report any violation of the conditions. One of the conditions she would have been responsible to report if there was a breach, was if she became aware that her husband had possession of a weapon. M.A. stated that this type of infraction would be taken very seriously.

[110] M.A. also testified that she explained to L.D.B. that she could withdraw as surety at any time. She also stated that she would have made it clear that if she withdrew herself as surety, C.D.B. would be arrested immediately unless another surety was in place in order to effect a seamless transition. M.A. made it clear in her testimony that if she had any hint that L.D.B. was in any way fearful of C.D.B., that would have set off huge alarm bells and she would not have allowed the matter to proceed with L.D.B. as surety. C.D.B. was released on bail with his wife as his surety on February 11, 2010.

[111] L.D.B. testified that she was only given a very general idea of what a surety was and that a piece of paper was shoved in front of her for her to sign. She recalled that if there was a breach she would have to pay $1,000. I do not accept L.D.B.’s account of the information she was given at the time she entered into the surety on behalf of her husband. I found M.A. to be very professional and knowledgeable of this area. She was also very forthright in her testimony. M.A. worked for a well-known and much respected criminal lawyer who has since become a judge of the Ontario Court of Justice. I accept M.A.’s testimony with respect to the information she gave to L.D.B. on February 11, 2010.

L.D.B.’s Multiple Versions

Statements to her Employer

[112] On February 16, 2010, L.D.B. attended a meeting with Mr. Ron Heyboer, the Manager of Fire, Security and Safety Planning at the LHSC.

[113] She testified that she made notes of what she was going to say to Mr. Heyboer and showed them to C.D.B. in order that he would be satisfied that she was telling the “party line.” C.D.B. stated that he never saw these notes until he reviewed the disclosure in his criminal lawyer’s office. He also stated that he never told L.D.B. what to say about the events that led to the charges. He stated that anything she told her employer and his criminal lawyer were all her own statements without any influence by him.

[114] The notes L.D.B. made of the meeting she had at Mr. Heyboer’s office highlighted the following:

a. She stated that she wanted them to know “with 100% certainty that there is absolutely no threat to myself or my children in our home. There has never been a threat and I have no concerns in that respect.”

b. She was not at liberty to answer a number of questions “until she received further direction from my lawyer.”

c. She attended the meeting with Mr. Heyboer in order to find out why he had called her house on the Wednesday checking up on her wellbeing and safety.

L.D.B.’s Communication with C.D.B.’s Criminal Lawyer

[115] C.D.B. and L.D.B. attended at C.D.B.’s criminal lawyer’s office to review and comment on the Crown disclosure with respect to this threatening charge. I accept C.D.B.’s testimony that each of them was given a pad of paper to write their own comments about the disclosure they reviewed. One parent watched the youngest child while the other reviewed and wrote their comments and then the roles were reversed. The notes of their comments were copied at the lawyer’s office and he and his wife took the originals.

[116] Some of L.D.B.’s notes read:

Wife paged MN because he had seen her son on the previous Sunday for a tic that recently started. Following a training session the tic was exaggerated so L.D.B. paged him to ask him to have another look at him. When he arrived in Chapters he looked at MDB & asked a few questions. At this point C.D.B. entered the store and asked in a calm voice if he could have a word with him. No shouting, no profanities.

C.D.B. is the gentlest man I know but did not say about crossing the line.

[117] In her testimony at trial, L.D.B. stated that she just wrote what C.D.B. wanted her to write. I reject that testimony. Her statements to C.D.B.’s criminal counsel were similar to many of her comments that were captured on audio recordings taken by C.D.B. surreptitiously over the period of February and March 2010. I admitted these recordings after lengthy voir dires. My ruling was given orally at the time; the recordings’ probative value outweighed their prejudicial value. These recordings show a side of L.D.B. that she attempted to hide from the court. They go to her testimony relative to her conduct as a parent, her use of alcohol and her assertions that C.D.B. was a controlling, coercive and abusive man. Most importantly, they give a peek into the environment the children lived in for at least that tumultuous period.

[118] At trial, L.D.B. claimed that MDB and the other children did not see their father get arrested in February 2010. She also stated that C.D.B. did make a threatening gesture at Dr. N. as he left the Chapters store. She also stated that C.D.B. did drop off a threatening note intended for Dr. N. at his home that night. However, one of the audio recordings filed as an exhibit in this trial captured her saying something very different:

How can I work down the hall from the person who had you put in jail, C.D.B.? And who got these frigging criminal charges hanging over your head and that’s costing us a frigging fortune with the lawyer? Not to mention all the stress and all the added crap with it. How could I possibly work down the hall from someone like that you tell me. Seeing him day in and day out. I’d look at him and I get a flash of MDB seeing you in handcuffs. I’d look at him and remember the scared looks on the boys’ faces when the cops were at the door. I’d look at him and remember the feeling of helplessness that night when you were in jail. I look at him and remember that fucking harrowing day in court. All the fucking sleepless nights. And you expect me to work down the hall…

Statements of L.D.B. Captured on Audio Recordings

[119] L.D.B. testified she never yelled, swore or was abusive to anyone in their home. She went so far as to state in direct examination that she would always talk to the children about how “loud voices get you nowhere.”

[120] One of the recordings filed and noted as CD#1 Clip 2 was a recording of a conversation with L.D.B. and C.D.B. with the youngest child in the background. In this recording, L.D.B. is extremely agitated and raising her voice to the point of her being out of control in front of the child. She is swearing continuously, yelling and pounding the table angrily. She was angry over a lawsuit involving repairs to a van they had rented. With no regard to the fact that their youngest child was present, L.D.B. is yelling swear words, often using the word “fuck.” At one point the youngest child is calling for his mother and she yelled back at him to “get your ass to bed now.” C.D.B. testified that L.D.B. was intoxicated during this recording and many others. He stated that her speech was slurred and she could not be calmed, despite many attempts by C.D.B. to calm her down. I find that these audiotapes capture L.D.B. during times when she is in uncontrolled rages, swearing, yelling and in obvious disregard for whoever was within ear shot or view. I also find that her speech is often slurred and that she is apparently under the influence of an intoxicant.

[121] C.D.B. testified that, when L.D.B. drank to excess, her behaviour started to become increasingly erratic. He stated that this erratic behaviour was seen and heard by the children and it started to have an ever-growing negative impact on them.

[122] L.D.B. stated in her direct examination that she only drank socially and never more than two drinks at any given social event. She also stated in her direct examination that she was never intoxicated and certainly never in front of her children. The portrayal by L.D.B. of someone who was even tempered and balanced with the children and in her home setting generally came to a crashing halt when certain family videos and numerous surreptitious audiotapes were admitted by me into evidence.

[123] These audio recordings and some home videos depict L.D.B. as someone who is behaving in an alarming and abusive manner toward her husband and her children. I find that she was often under the influence of excessive use of alcohol when she made many of the concerning statements and acted in the manner that she did.

[124] Some of the audio recordings capture discussions by L.D.B. about the threatening charges and her relationship with Dr. N.. On the March 25, 2010 recording, L.D.B. states that she could not go back to work and that her job at the hospital is over. She is heard to tell C.D.B. that she is “scared of him [Dr. N.], frightened of him.” She is also heard to state: “I was pulled in, sucked in by that lecherous fucking asshole.” On that same date, L.D.B. is heard on the recording stating that she had been to see an employment lawyer, Stephanie Montgomery, and was told that she had a good case against Dr. N. as he was in a position of power over her. L.D.B. was also heard to state that the lawyer told her that it did not matter if it came out that she had an affair with another person at about the same time.

[125] On March 25, 2010, a further recording captures L.D.B. repeating that she was standing not far from C.D.B. and Dr. N. on the night of the alleged threat and there were “no raised voices, shouting or swearing.”

[126] In a conversation recording between C.D.B. and L.D.B. on March 26, 2010, C.D.B. attempts to try and find out why L.D.B. is acting the way she is that day. L.D.B. goes into a tirade with multiple exclamations to C.D.B. to “fuck off.” When C.D.B. tries to tell L.D.B. that Dr. N. had been taking advantage of L.D.B., L.D.B. tells him that it did not matter, as she had the affair. She then goes into what can only be characterised as a litany of foul expletives:

So what are you what are you trying to say C.D.B. – sitting back there being fuckin Mr. fuckin - I’m the fuckin biggest fuckin I’m the biggest fuckin cock fuckin I’m the biggest fuckin biggest shot on the fuckin planet.

[127] On March 30, 2010, there is a further recording of L.D.B. and C.D.B. having a conversation about Dr. N.. The youngest child is present for a period of time during this conversation. In relation to the threat charges against C.D.B., L.D.B. stated that she very much hoped it would resolve soon and that she “just wants to come out fighting … like the frigging Tasmanian devil with my claws out.”

[128] In that same recorded conversation, L.D.B. repeated that she told the police that C.D.B. had never been violent toward her or the children and that he was her husband and she wanted him home. L.D.B. talked about how Dr. N. took advantage of her when she was vulnerable. L.D.B. also stated that Dr. N. met with her twice on the day of C.D.B.’s surgery on January 12, 2010. She also complained about Dr. N. being controlling and “stalkerish.”

[129] Many of the above references from the audio recordings relate to the events surrounding the affair with Dr. N. and the alleged threats. They are further confirmation of how L.D.B. told one thing to her employer, the police, C.D.B.’s criminal lawyer, and on the various recordings that differed from the events that she testified to in this trial. On the recordings, she consistently referred to C.D.B. not being violent. They also consistently refer to a limited conversation between Dr. N. and C.D.B. on February 9, 2010 at Chapters with no raised voices and no threatening gestures. She did a 180 degree turn at trial. Her testimony at trial talked of C.D.B. threatening Dr. N. and, for the first time, asserting that he made a threatening gesture of slitting a throat at Dr. N. when he was leaving Chapters. L.D.B. is simply not credible on the issue of the threats and I reject her evidence in this regard.

The Chaotic Environment in the B. Home: February, March and April of 2010

[130] The audio and certain family videos were admitted by me at the trial as their probative value far outweighed their prejudicial value. The Society, the mother and the lawyer for the youngest child, MXB, all strenuously resisted the admission of the recordings. All of them took the position that the father tampered with the recordings to the degree that their accuracy was not sufficient to allow for the admission into evidence. I will deal with the positions taken by the Society later in these reasons. For the purposes of this portion of the reasons, I find that the recordings were an accurate reflection of the events that occurred.

[131] Counsel for the Society stated that he was taking the audiotapes to a technical specialist in order to bring to the court evidence to establish that the recordings were tampered with or altered. He was given time for this to happen. However, despite this time, neither the Society, nor the lawyer for the mother or the lawyer for the youngest child called any evidence to establish that there was alterations or tampering with the recordings. During the voir dire, I specifically asked the mother, when she complained that she heard clicks on the audio, whether the content was an accurate reflection of what had occurred and she replied that it seemed to be. I find that the audio and the family videos that were shown, except for one video, accurately reflected the events that were captured on the recordings. The one video I find was altered will be dealt with later.

[132] The family videos to a significant degree corroborate the evidence of the father and the eldest son with respect to the increasing problems the mother, L.D.B., was having with alcohol consumption and her associated erratic and sometimes fearful behaviour.

Florida Vacation 2007

The Family Video of a Florida Holiday

[133] L.D.B. stated that she was never intoxicated and certainly never in front of her children. A video captured a segment of the family’s holiday in 2007 that was very concerning. At this time, the child RB would have been approximately eight years old. The video depicts the child RB in his pyjamas in a bed, still awake, and in obvious discomfort. His discomfort was due to his mother being so intoxicated that she could hardly speak in any coherent manner. The bed had to some degree collapsed and L.D.B. was in her panties, with one of her arms stuck in a top she was either trying to get on or off. Her speech was slurred and she was obviously extremely intoxicated. At one point, the child RB could be heard to utter the words “you drunken bastard,” as he rolled over on the bed in obvious disgust at what he was observing.

[134] In addition to attempting to not allow this evidence to be admitted at all, counsel for the Society, the child MXB and the mother, L.D.B., all tried to emphasise that this video was somehow staged. Much of the cross-examination was devoted to whether the child MDB or the father C.D.B. took the video. None of that was at all relevant to the issue of whether L.D.B. was so intoxicated in front of her eight year old so as to invoke such a response from him. This also became material due to the mother L.D.B. attempting to misrepresent the level of her use of alcohol.

Video Clip of a Woman Staggering on all Fours

[135] One of the family videos that I find was altered was a video that captured a Christmas period in the B. home in 2009. The video starts with a rather lengthy song and dance and silly play amongst the children. During this dancing and singing there is an approximately 1.5 second clip of a woman with blond hair on all fours in the front entranceway of the B. home. According to C.D.B., the woman in this short video clip is L.D.B. He stated that she was so drunk she could not even stand up. C.D.B. testified that the children were in the lower level of the home and L.D.B.’s brother, Br., was visiting. Everyone was drinking; however, Br. and L.D.B. were also doing shots. He felt this was a major contributor to L.D.B. being so intoxicated. When the video was stopped at one point, you could see a foot just wearing a sock standing on the landing above the woman on the floor below. According to C.D.B., it was Br. who was laughing at his sister and pouring beer on her from above.

[136] L.D.B. was shown the video in the voir dire and she stated that she could not tell who the woman was. She stated that she did recall that Br. was present that night and that everyone was drinking. She did not recall being so drunk. Despite this evidence and other important evidence that Br. should have been called to refute, L.D.B. did not call her brother Br. as a witness. I draw an adverse inference to Br. not being called to refute this evidence that the woman on the floor who was in such a state of intoxication was L.D.B. In addition, the circumstances cry out for an explanation by L.D.B. and her only testimony was that she could not make out from the short clip who the woman was. She could not offer any other explanation of who it even might be.

[137] The court was left with a 1.5 second clip that was immediately followed by an out of sequence taping by L.D.B. of the youngest child singing and dancing. It was obvious to me that the out of sequence recording that recorded over the woman on all fours on the floor was staged by the mother. The child had no interest in continuing to sing and dance; however, the mother can be heard to continuously encourage him to keep going. The recording was paused often and the mother could be heard to give instructions to MXB to pick up his dance from where he left off. This lengthy over taping, in my view, was done by L.D.B. in order to erase the very damning evidence of her being so immobile due to alcohol intoxication that she could not even get herself out of the position she was in on the entranceway floor. I also find that it stretches any form of credulity to have her claim that she could not make out who the woman on the floor was.

[138] L.D.B. admitted in cross-examination that their home was an open concept home and you could easily hear what was going on in other parts of the house from many other parts of the house. I have no doubt that the children saw and heard many incidents of inappropriate behaviour on the part of their mother and this is highlighted by many of the audio recordings. In many of the recordings, L.D.B. is simply oblivious to who heard her and to the impact on children in what and how she was saying and behaving.

[139] I find that L.D.B. did use alcohol excessively, which contributed to erratic behaviour on her part within the last six months prior to April 2010. The children were exposed to this. A number of the audio recordings demonstrate that they were present or within hearing distance. I find that her behaviour within this time period had a drastic impact on the relationship between the mother and at least the two older children. Some of the events are detailed below.

[140] I find that the two eldest children knew that their father had been arrested and charged with an incident that involved a doctor that worked with their mother. I find that the eldest child knew before February 28, 2010 that his mother had an affair with this doctor, who was the alleged victim of this alleged threat. On February 28, 2010, a further implosion of their family was witnessed by all three children.

[141] In order to properly understand the depth of the implosion, a little background is appropriate. The child MDB had a promising soccer career. He had played on a number of teams over the years and was easily identified as someone who might have a chance to advance in this sport. At one point in or about the winter of 2009, MDB played on a team out of Windsor, Ontario. A teammate of his was a boy named Alex. Alex’s father, S., was an assistant coach and manager of this soccer team.

[142] In September of 2009, MDB went with his father to England for a soccer tryout. If he was chosen, he would be invited to a further tryout that could advance his goal of playing professional soccer even further. In or about the late fall, early winter of 2009, MDB was notified that he was chosen to attend the next level soccer tryout in England. This was to take place in April 2010.

[143] During the winter months of 2009/2010, MDB played in a winter league in the Windsor/Michigan area. Most of MDB’s family and friends were extremely proud of MDB’s accomplishments. The B. family actually set plans in motion to move back to England. One of the driving forces behind this was in order to advance MDB’s soccer aspirations. C.D.B. and L.D.B. even listed their house for sale in or about late fall, early winter of 2009. L.D.B. made inquiries about job opportunities back in England at around this time period.

[144] In or about the month of December 2009, C.D.B. became very ill with a herniated disc. He could hardly ambulate and his wife L.D.B. took on the lion’s share of the work in the home and the busy days of transporting the children to many of their events. This included transporting MDB to his soccer games and practices in the Windsor/Michigan area. MDB testified that he became concerned that his mother was acting in an inappropriate manner with his soccer manager, S.. He stated that they flirted and on one occasion he saw them hug and kiss. Both S. and L.D.B. denied this in their testimony. S. and his family became friends with the B. family and visited in the B. family home on a couple of occasions. The nature and quality of those visits will be discussed later.

[145] As noted above, the early part of February was riddled with turmoil in this family with the surfacing of the affair that L.D.B. had with Dr. N. and the charges against C.D.B. that resulted against him and his wife becoming his surety. MDB testified that on February 28, 2010, he was at home with all his family members. His brothers were playing video games downstairs and he was on his way upstairs when he saw his mother’s cell phone buzzing. He recognized the phone number. It was S.’s number. He thought that the message related to a soccer event so he opened it. He was shocked to see that the message from S. to his mother proclaimed his love for her and asserted that he never lived before he met her. MDB stated that he forwarded the message to his father’s cellphone. According to MDB, his father was in the garage and when his mother learned of the message and the exposure she started to scream “your father is in the garage, he has a gun and he is going to kill us all.” C.D.B. testified that he called MDB to open the door so that he could gain entry back into the home. When he got into the home, both MDB and C.D.B. testified that L.D.B. was intoxicated, slurring her words and yelling irrationally. C.D.B. tried to calm her and the whole family met in one of the bedrooms downstairs, with C.D.B. trying to assure the children that everything was going to be all right.

[146] According to C.D.B. and MDB, L.D.B. continued her erratic slurring statements and stated that she was in love with S. and within six months she was going to run away with S.. The children were so upset, RB ran upstairs to his room and MDB helped with MXB while L.D.B. went off by herself to another area in the house. By the next morning, according to MDB and C.D.B., L.D.B. acted as if nothing had happened. I accept the version of events as stated by MDB and C.D.B. L.D.B. was extremely vague in her recollection of this event. Her position at trial was more focused on what I feel to be her efforts to deflect the focus on what she did and said to pose the question of how C.D.B. got the text from S. on his phone.

[147] L.D.B.’s testimony was replete with attempts to claim a conspiratorial plot between her son MDB and his father, C.D.B., to show her in a bad light. I do not agree that C.D.B. and MDB acted collaboratively to harm L.D.B. or to set her up to look bad. This text from S. came from S.’s phone. He admitted that he sent a text to her that sounded like that text. The explanation by MDB that he heard his mother’s phone vibrating and recognized the number as his soccer manager’s is realistic and I accept this as what happened.

[148] I also find that the children and C.D.B. were subjected to further frightening and abusive rants of L.D.B. when the whole family was in one of the bedrooms and C.D.B. was trying to calm things down. At some point, L.D.B. asserted that she was going to run away with S. and that C.D.B. was not the father of their youngest child, MXB. This episode must have been severely traumatic for the children. Unfortunately, professionals charged with the duty to protect these children from such abuses did not perform their job in a manner that eased the emotional pain of these children.

The Trip to England

[149] The impending trip to the soccer tryouts in England for MDB and the B. family became a significant transition to the perfect storm that this family would be thrust into. MDB was still going to his soccer trials in England for the first of April 2010 but the question of what members of his family were going with him started to loom over everyone. C.D.B. still wanted the whole family to go. L.D.B. was simply not going and she made it very clear that she would not let their youngest child, MXB, go. She also did not want RB to go. One of the audio recordings filed as evidence capture L.D.B. stating: “if you think for one minute … you don’t have my permission to take MXB to England and you cannot have his passport. No friggen way you are taking MXB … over my dead body.” The child RB came into the conversation and was upset as he heard his mother state that she did not want him to go either. L.D.B. is heard on the recording to say that she would not stop him as he was 12 going on 13 and he could make the choice.

[150] Another recording on March 24, 2010 captured L.D.B. stating: “You’re going to fuck off to the UK … And stay there the fucking till 2000 fucking 12, I don’t give a fucking shit.” C.D.B. took this as just another one of L.D.B.’s rants while in an intoxicated state.

[151] On March 27, 2010 at 8:28 p.m., C.D.B. received a text from L.D.B.’s phone. It read: “I’m gonna kill you and everyone else.” C.D.B. could not recall when he read that text. However, he stated that she often made wild and erratic statements while drinking alcohol.

[152] The audio recording of March 25, 2010 is a good example of the toxic dynamic that was developing between the child MDB and his mother, L.D.B., with each of them willing to challenge the other with verbal and physical aggression. This dynamic would get worse and, in my view, play a role in the events that unfolded on August 30, 2010. However, between March 25, 2010 and August 30, 2010 things only got worse.

[153] L.D.B. admitted that she felt that C.D.B. wanted her to go to England with him and all three children as he was afraid of what she would do to get a divorce while he was gone. C.D.B. testified that he was afraid of that but he was also afraid of what she might do as she was his surety. C.D.B. asked L.D.B. to sign a document that he prepared stating that she would take no legal steps while he was away. He wanted things to calm down and upon his return they would try to work their troubled marriage out. C.D.B.’s concerns were warranted.

[154] The decision was made that C.D.B. and his two oldest children, RB and MDB, would go to England. They were to leave April 1, 2010 and return April 22, 2010. Even the trip to the Toronto Airport had its own mystery. The whole family went in the car to the airport. The mother, father and the eldest child testified that the ride was quiet and strained. There were a few text messages sent from C.D.B. to L.D.B. when they were at the airport. C.D.B. texted L.D.B. that they were about to board the plane and everything was all right. However, two very concerning texts appeared to come from L.D.B.’s phone to C.D.B.’s phone around the time of the departure to the U.K. The first text was on March 27, 2010 at 8:28 p.m. and read: “I’m gonna kill you and everyone else.” The second text from L.D.B. to C.D.B. was on April 1, 2010 at 2:27 p.m. and read: “I hope you all drop dead and don’t come back.”

[155] The mother, L.D.B., claimed that she did not send those concerning text messages and that somehow C.D.B. manipulated things to place them on her phone or create a false text. She offered no independent evidence to corroborate this allegation. In addition, the audio recording of March 24, 2010, just three days before the first concerning text, captured L.D.B. stating: “You’re going to fuck off to the U.K. … And stay there the fucking till 2000 fucking 12, I don’t give a fucking shit.” When taken together with L.D.B.’s substance induced rant of March 24 and all of the multiple manipulations on the part of L.D.B. that have found to have occurred over the few months previous, I draw the inference that she did send those text messages.

[156] The audio recordings referred to above of March 26, 28 and 30 demonstrate L.D.B. in both an agitated and erratic state. In the recording of March 30, 2010, L.D.B. and C.D.B. were on their way to C.D.B.’s criminal lawyer. When C.D.B. told L.D.B. that he had forgotten a paper they intended to bring to the lawyer, L.D.B. called C.D.B. a “fucking retard.” Other recordings over this period of time demonstrate that L.D.B. is constantly telling her husband to “fuck off.” On one recording she is heard to say multiple times “shut the fuck up [C.D.B.].” All of the recordings are completely inconsistent with a woman who is so afraid of her husband that she blindly goes along with whatever he states because of fear due to his abusive controlling and coercive conduct toward her. They demonstrate the exact opposite.

[157] The events from at least April 16, 2010, when L.D.B. went to P.C. Vandenberg to tell him that her husband was verbally abusive and controlling toward her and that her lawyer was going to court the next week, was the start of an avalanche that toppled onto these children.

The Soccer Trials in England

[158] MDB and C.D.B. testified that they were all excited and having a wonderful holiday in England. C.D.B. took the children to many tourist sites and they loved seeing the place that they were born in. MDB had his soccer trials and good news started to come from these tryouts. C.D.B. testified that there were two inquiries from major teams, one being Manchester United. There was nothing concrete, however the mere expression of interest was a huge potential for the child MDB. C.D.B. stated that he gave whatever details he could to his wife. She told the children in text messages that she was proud of MDB and happy for his success. The children seemed elated with their experience by this time while in England. This exuberance was soon to come to a crashing halt.

The Emergency Application and Motion Brought by L.D.B.

[159] At the core of our system of justice is the concept of fairness. That is why judges are very hesitant to grant ex parte orders. The chance of harm being done when someone comes to court and misrepresents reality is so great that caution must be exercised when granting such orders. On April 27, 2010, L.D.B. brought an application to the court in London, Ontario for a divorce. She also claimed custody of all three of the children and exclusive possession of the matrimonial home. She asked for a restraining order claiming that her husband was “emotionally abusive, controlling and coercive.”

[160] At the same time, she brought an urgent ex parte motion asking for an order for interim custody of the children, an order that the children be immediately returned from England with police assistance and a restraining order against her husband, as well as exclusive possession of the matrimonial home. What L.D.B. had told P.C. Vandenberg was true when she met with him, that her lawyer was preparing documents to bring the matter to court on an urgent basis the week after April 16, 2010.

[161] The claims she made in the affidavit she swore on April 23, 2010 were in essence that this emotionally abusive and controlling father was refusing to bring the children back from England on April 22, 2010, as originally planned. She claimed that she was told by someone she did not identify that C.D.B. was getting passports for them and she feared that she would never see the children again. I was the judge that heard that ex parte motion. Based on the mother’s representations at that time, I granted the order returning the children to Ontario and that they reside in the matrimonial home with their mother. I made that order and motion returnable in one week. I was misled by the mother, L.D.B., on this occasion. She used this process in order for her to gain an advantage in litigation that she had already been planning.

Actions of the Mother, L.D.B., while C.D.B. and the Children were in England

[162] It was not until this trial that the court learned that the mother, L.D.B., had been planning to get an order from this court as early as April 16, 2010. On that date, she went to see a police officer, P.C. Vandenberg, at the Strathroy, Ontario police station. L.D.B. told P.C. Vandenberg that her husband was emotionally and verbally abusive to her; however, on this occasion she claimed it was never in front of the children and he was never physically abusive to her. She also told him that her husband was in England with her two oldest children and that they were due to come back on April 22, 2010. She advised him that she was his criminal surety but she had been to her lawyer and her lawyer planned to be in court by next week to get an order for exclusive possession of the family home and emergency custody of the three children. As well, she was going to get a restraining order against her husband.

[163] She had told him that she was having an alarm installed in her home that same day they were speaking. She was advised by her lawyer and the police to withdraw herself as her husband’s surety. P.C. Vandenberg advised her that based on this information she should have her home flagged as a “domestic violence home.” P.C. Vandenberg stated that this was a process in that jurisdiction, that upon the mere making of an allegation of domestic violence, without investigation, the police would flag the home “DV” and a special alert would go out in case any calls were made. At a minimum, two cars would be dispatched to that home already alerted of possible domestic violence. As it turned out, this was eventually done by L.D.B.

[164] At the same time that she was seeing her lawyer and the police, and planning to get an emergency order and withdraw her surety, she was in constant communication with her children and C.D.B. in England. This is despite the fact that she stated in her affidavit to get the emergency order that he was not communicating with her, and that that was part of her worry. She also claimed that he was planning to leave with the kids and not return them. This was shown at trial to be a complete misrepresentation of the facts.

[165] From April 1, 2010 until the children’s return on April 30, 2010, there was communication by telephone, text and email. The actual points of communication totaled approximately 60 discussions or text or email messages. In her affidavit, she only attached two such electronic communications. She never told the court that there was constant communication about problems with rearranging flights and the fact that C.D.B. was making every effort to return home with the children. She did not share with the court that she had offered to go to England and pick RB up, so he would not have to travel alone and that remained one of the options until tickets were purchased for the April 27, 2010 return. That did not happen, as the children became sick when they witnessed their father’s shock reaction when he was told that L.D.B. had removed herself as his surety on April 26, 2010.

[166] On April 13, 2010, three days before she told P.C. Vandenberg that her lawyer would be in court getting an emergency order, L.D.B. had obviously been told that her son had been doing extremely well in soccer. She sent a text to her children and husband stating: “Fantastic tell MDB I am so proud of him and love him. Tell RB we love him.”

[167] Between April 14, 2010 and April 18, 2010, L.D.B. became aware that C.D.B. and the children were going to visit his sister and brother-in-law in Northern Ireland. On April 18, 2010, she sent a text to C.D.B.: “Let us know when you arrive safely. Hope you had good journey (sic). Give MDB and RB our love. All good here.” This was two days after she told P.C. Vandenberg that she was going to get an emergency order by the following week.

[168] By April 19, 2010, L.D.B. had been told that two soccer clubs were showing interest in MDB. L.D.B. sent a text reply that states: “Excited for MDB. Details would be appreciated. Keep me posted.”

[169] By April 20, 2010, L.D.B. had learned that there may be problems with flights due to volcanic ash that had been drifting over the Atlantic and causing flights from Heathrow and other airports to be delayed or cancelled. L.D.B. sent a text on April 20, 2010 to C.D.B.: “What about flight back for RB on thurs? I think he is ok to travel on own? I think he will be fine but i don’t mind coming to pick him up in uk. Great for MDB.” At least on April 20, 2010, L.D.B. was all right with MDB staying on with his father in England if it meant furthering his soccer career. However, she was insisting that RB return, even with the uncertainty of the flight situation. She did not tell anyone that she was planning to see her lawyer in three days to get an emergency order.

[170] C.D.B. testified that he called L.D.B. on April 21, 2010 to update her on the travel situation. According to C.D.B., L.D.B. became very angry and accused him of lying about the travel problems and his inability to book a flight. She eventually hung up on C.D.B. Later that day, RB and MDB sent an email to their mother. The email was filed as an exhibit. This email expressed anguish and concern on the part of the children. RB was particularly upset. He stated in the email that they had been trying to call her but only got her voice mail. He also told his mother that they had been happy in England and all he wanted was to be there for the “biggest momment (sic) in MDB’s life.” He expressed anger and frustration that his mother wanted him to travel over eight hours by himself when he was afraid that the plane would crash due to the volcanic ash. RB had been following the news in the UK and constantly watching the internet for updates. According to C.D.B., he was truly afraid. RB then told his mother in this email that his new flight had been scheduled for April 27 and he gave her the details of the flight. When L.D.B. testified, she claimed that she felt the email was from C.D.B. and not RB or MDB. MDB testified it was from him and his brother. C.D.B. also stated the email was from the boys. I find that the email was from the children and once again their frustration and fears were not being listened to.

[171] On April 22, 2010, L.D.B. sent a text that reads: “I have had a voicemail from MDB & RB. Can u please email me with flight details.” She was already given the flight details from RB by email the day before. She did not communicate on April 23, 2010. That was partly because she was at her lawyer’s office swearing her affidavit to get her emergency order. On April 24, 2010, her text to the children simply read: “Going to Br. as per email. Just email or txt when u get a chance or call at Br.s. Any trouble with RBs flight? What r boys up to. Hope something fun. Love 2 m&r.” I find that this email’s matter of fact tone and cavalier expressions of just another day is yet another example of how deceptive she was. The day before, on April 23, 2010, she had sworn an affidavit that claimed C.D.B. was abusive and a man to be feared and that he had threatened a co-worker, who L.D.B. later admitted she was having an affair with. She omitted that from her affidavit of April 23, 2010. She also did not disclose that she had made numerous statements to her employer, the police and the criminal lawyer that her husband was not abusive and he did not threaten the doctor.

[172] L.D.B. confirmed in her testimony that she had a telephone conversation with C.D.B. on April 21, 2010, in which he detailed the concern about the weather and flight situation and that she told him she did not believe him. She also confirmed that she had a call from her children, RB and MDB, on April 23, 2010. She testified that during that call she did not even ask RB about his flight. She also confirmed that she had a telephone call with C.D.B., RB and MDB on April 26, 2010 and with C.D.B. on April 27, 2010. In neither of those calls did L.D.B. refer to the fact that she was going to court for an urgent order or that she had withdrawn as surety for C.D.B.

[173] In her ex parte motion that was before me on April 27, 2010, L.D.B. withheld extremely important information about the multiple communications she was having with her husband and the children about the details that were known about MDB’s successes in the soccer efforts. She led me to believe on that occasion that C.D.B. was being very vague about what was happening with MDB. She also withheld extremely important information relative to the efforts being made around a very confusing time concerning flights being cancelled and the efforts made by C.D.B. to reschedule. She led the court to believe that he was not communicating with her and was planning to keep the children from her by keeping them in the UK. She also misled me with respect to the level of fear she had about C.D.B. due to his control, abuse and coercive conduct.

[174] On the eventual return of the motion on May 26, 2010, Campbell J. set aside my order of April 27, 2010 after reviewing some of the information that should have been before me and, on consent of the parties, he allowed C.D.B. to return to the matrimonial home to reside with the children and his wife.

The Removal of the Surety

[175] On April 26, 2010, L.D.B. sent a text to C.D.B. that simply advised him to talk to his criminal lawyer. She did not tell him that by that time she had withdrawn as his surety and that he would be arrested upon his return to Canada. When C.D.B. did contact his lawyer, he was devastated and in a state of shock. He stated that the children were with him at his sister’s home in Northern Ireland and that they must have seen him collapse on the floor and become tearful. He could not believe that his wife would cause him to go to jail upon his return to Canada.

[176] The children were now put in a position that they would have to travel alone in order for their father to attempt to arrange for another surety prior to his return to Canada. The love and respect that the two oldest children had for their mother was rapidly declining as they saw their father in this situation and their reflection on their own plight. MDB would not let his brother RB fly alone. He would forego his immediate soccer plans and fly back with his brother.

[177] When they arrived back in Canada, they were met at the airport with police and their maternal uncle, D.T. He was an OPP officer. Needless to say, MDB testified that he was extremely upset with what had happened. According to MDB, their uncle was very angry with them and he expressed that by yelling at them and swearing at them. D.T. was not called to testify.

[178] I find that L.D.B. executed an extremely manipulative and cunning plan which set this court action into play. She did not need to withdraw her surety. She could have waited until C.D.B. returned home and a new surety was in place. She did not need to come to court and mislead the court about the abuse and fear that she had of C.D.B. I find the false allegations by the mother of abuse and fear became the most significant factor that drove the balance of this case into 154 days of trial explosion.

[179] Many professionals did not do their jobs in an unbiased, objective and thorough manner. From April 23, 2010, L.D.B. made one after another self-reports of false allegations of abuse and they were accepted without scrutiny and without investigation by professionals who had the responsibility to do a thorough and objective investigation and they did not.

The Return from England

[180] The children, RB and MDB, returned to Canada on April 30, 2010. C.D.B. and his sister B.B. went back to B.B.’s home in Northern Ireland on May 1, 2010. This is the first time C.D.B. saw the divorce application and urgent motion and order obtained by his wife, L.D.B. Once again, he was shocked to see these documents and read their content. He made arrangements with the help of a lawyer from the UK and the Consulate to hire a family law lawyer in London, Ontario. He also made arrangements with his criminal lawyer to get a new surety and have the threat charges dealt with by entering into a peace bond. He would have to be arrested upon his return to Canada until this had been put into place.

[181] C.D.B. flew back to Canada with his brother-in-law, D.B. He came along for company and support. When they landed in Toronto, they had to wait until London Police drove to the Toronto Airport to arrest and accompany C.D.B. back to London. When he arrived in London, it was too late for him to be brought before the court for a bail hearing and he had to spend the night in jail before he could attend court in the morning. He was released the next day.

[182] Understandably, C.D.B. was afraid to contact L.D.B. to make arrangements to see the children. Instead, he and D.B. attended to the Strathroy police station to tell P.C. Vandenberg he was back and ask him if he could contact L.D.B. to see if she would agree to let their uncle, D.B., and him see the children. L.D.B. would not allow this visit to take place. D.B. returned to England without seeing the children. C.D.B. went to live with a friend and one of his new sureties, R.H. For the next few weeks, C.D.B. had little contact with his sons. He got them a replacement cellphone when MDB told him that his mother had taken his phone away as a punishment. He was receiving very concerning texts from the boys that reflected that they were becoming increasingly fearful of their mother and her behaviour.

[183] On May 17, 2010, he received a text from MDB that said “both really scared.” On May 20, 2010, C.D.B. received a text from his son that said “both really scared. Think been drinking. Don’t know what to do.” There were a number of texts with this same type of fear expressed from the boys to C.D.B. over this time period. C.D.B. told them to call the Children’s Help Line or the Society. On May 20, 2010, L.D.B. allowed C.D.B. to see the children at a soccer game. The family law matter was scheduled to be in court on May 26, 2010.

[184] On May 17, 2010, L.D.B. had taken her son MDB’s cell phone, allegedly as a punishment. MDB testified that this was important to him as it was the only way for him to be in contact with his father. An argument broke out between MDB and his mother. L.D.B. claimed that MDB became angry and hit his door and pushed her. MDB agreed that he was angry but stated both he and his mother were. He agreed that he hit the door but denied he was physically aggressive to his mother. L.D.B. did not just retain MDB’s phone as a punishment, she went to her sister P.’s home and they took digital photos of some of MDB’s text messages. They deleted many others. The intercepted text messages were offered as exhibits by the mother at the trial.

[185] On May 17, 2010, the police attended to the B. home. L.D.B. stated that she triggered the alarm. MDB stated that he called the police and, when his mother saw him call the police, she triggered the alarm in order to claim that he was the aggressor. No charges were laid. MDB went to his friend’s home to cool off.

The Children’s Reports to the Society

[186] MBD testified that before his father came home from England, he called the Society to complain about his mother’s drinking and behaviour and that no one had called him back. The Society workers testified that they did not find a record of this call. However, they only searched the electronic data and not the paper records. MDB further testified that he called the Society again on May 17, 2010 and told the worker that he was concerned about his mother’s drinking and behaviour. Cheryl Montgomery testified that she was a child protection worker with the Society. On May 17, 2010, she was the emergency duty worker on call. She was responsible to take calls when she was paged and to talk to the caller and make a record of the call and pass it on to the appropriate next step. On this evening, she received a call from a person who identified himself to be MDB. He said his age was 15 and that he had two younger brothers in the home. He told the worker that his mother had been drinking a lot lately and was “hammered the night before.” He also stated that his mother drives while she is drunk with his brothers in the car and that she “acts crazy.” He stated that his mother accused him of stealing and had taken his phone as a punishment. He now had no one to call to make him feel better. MDB told the worker that the police had been called but the worker did not ask why or what happened. Ms. Montgomery told MDB that she would pass his information on to another worker who will call him. She also told him to call back that evening if his mother was drinking a lot.

[187] Ms. Montgomery agreed that when children under 16 are in a home where a parent has alcohol problems, it is a serious situation that the Society deals with all the time. She also agreed that when a report of parental drinking has been made, someone should meet with the family as soon as possible.

[188] Tina Carvello, another protection worker with the Society, testified that she was working as an intake screener at the Society on May 17, 2010. She stated that she received a call at approximately 3:53 p.m. on May 17, 2010 by a person who identified himself to be C.D.B. C.D.B. told her that he was the father of three young boys, ages 15, 13 and 5. He provided his address and his wife’s name and the home phone number. He also told the worker that his 15 year old son had been pushed by his mother and had contacted the police. C.D.B. told the worker that the police came to the house but the mother made false allegations that her son MDB had assaulted her. He further told the worker that his son MDB had previously called the Society and complained about his mother’s drinking but no one called him back. Ms. Carvello conducted a record search but she could not find a record of MDB’s previous call. She confirmed that it was a computer search she conducted, not a paper record search. She agreed that if the call was made after hours, there would only be a paper record.

[189] Ms. Carvello stated that she tried to contact the Strathroy Police but they never called her back. She consulted with her supervisor and documented the call to her own paper records and not the Society’s computer base. She took no further action.

[190] Cheryl Grant was a protection worker who also testified on behalf of the Society. On May 18, 2010, she was working as an intake worker. She stated that she got a call from a man identifying himself as J.F. He was a guidance counsellor at MDB’s school and he was calling to express concerns over MDB. He advised the worker that MDB was a good student. He stated that MDB had met with him that morning and expressed concerns over what was happening in his home. MDB told J.F. that the police had been to the house the night before and that his mother had kicked the door in. MDB told him that his family was “falling apart.” He told J.F. that his mother had been drinking heavily and that her behaviour was bad when she was drunk.

[191] Ms. Grant testified that the information given to her met the eligibility spectrum used by the Society to identify risk to children. She stated it met two criteria, parent child conflict and heavy use of alcohol.

[192] On May 19, 2010, Ms. Grant received another call from someone who identified himself as J.C. This caller said he was calling on behalf of “his friend” MDB. J.C. told the worker that MDB had been locked out of the house by his mother because his mother did not want him to be alone in the house while she was at an appointment that MDB did not want to go to.

[193] Ms. Grant was working as an emergency duty worker. She received information about a telephone call that had reportedly been made to the Society by a person who identified himself to be RB, the middle child of the B. family. The referral note stated that RB was concerned that his mother would do something dangerous to him. Ms. Grant stated that she called RB back. RB told her that he was “afraid his mother might do something.” Ms. Grant stated that she felt the child was “vague” and would not give particulars. The child also expressed to Ms. Grant that it was not fair what his mom was doing to his father. He stated that his father was now back in the home but he was afraid of his mother when she was in the house. He told the worker that his parents were going through an “ugly” divorce. RB described to the worker the fact that he and his brother and father were in England and his mother took his surety away. He stated that his father came back May 12, 2010 but could not come back to the house until May 26, 2010. RB told Ms. Grant that he was “frightened.”

[194] Ms. Grant asked RB if he was afraid for his immediate safety and he said he was not. She gave him the number for the emergency service and told him she would pass his information on to someone. Ms. Grant did not feel that RB’s call was an emergency and she did not ask to speak to RB’s father, despite the fact that RB had told the worker that his father was in the backyard. This worker made the determination not to take a more active role. Ms. Grant became the fourth Society worker who stated that she would document the call and hand it to another worker for determination of what action would be taken.

[195] Kathy Tomenac was the fourth Society protection worker to testify. She was the emergency worker on call on May 22, 2010. She stated that she received a page at 12:12 a.m. She called the number and it was C.D.B. He went through the recent history of the soccer trip to England and the return of the children while he stayed back for a few weeks. He stated that the boys kept telling him that their mother was “acting mean.” He also stated that the mother told the boys that she would “put them in a home.” He told the worker that his wife had “alcohol problems” and that she had an affair. He stated that she could be fine in the morning and by evening “it was worse.” He told the worker that he was concerned for his boys and how their mother’s behaviour might impact on them.

[196] Ms. Tomenac stated that she consulted her supervisor and she documented the call by paper report and passed it on to another worker. C.D.B. testified that he kept receiving concerning information from his children and no one was doing anything. He was getting frustrated and that is why he called them again just after midnight on May 22, 2010. His children were upset and scared and he felt helpless because he could not do anything.

[197] In the “summary of previous Society involvement,” there is no mention of MDB’s call to the Children’s Help Line by the children nor was there any mention of the calls from C.D.B. or the telephone call from RB and J.C. The only call mentioned in the summary is a call from J.F., the guidance counsellor from the school.

[198] Dawn Whalls was a protection worker who was assigned as an intake worker in May 2010. She would be involved with a family as long as the family was working with the Society on a “voluntary basis.” She stated that she became involved with the B. family in May 2010. She stated that she was aware that the family had been identified within the eligibility spectrum under the headings of parent child conflict and parental alcohol use.

[199] According to Ms. Whalls, the required response time to make contact with the person reporting would vary under the spectrum. She felt this reporting required a seven day response time. She did not say why.

[200] Ms. Whalls called L.D.B. on May 20, 2010 but did not meet with her until May 26, 2010. She did not meet with C.D.B. and the first partial in-person interview of any of the children by someone who worked at the Society was on June 1, 2010.

[201] L.D.B. told Ms. Whalls on May 20, 2010 that her husband had previously threatened a co-worker and was charged with uttering threats. She did not make any mention of the fact that she was having an affair with this alleged victim or that she had previously claimed to other professionals that her husband did not threaten Dr. N., as he alleged. L.D.B. also told Ms. Whalls that she was C.D.B.’s surety but that she withdrew as his surety and she feared him. She stated that her son MDB was angry at her as a result of her withdrawal as his surety. She did not mention that withdrawal caused C.D.B. to remain in England while her children had to fly home alone from England, as C.D.B. would have been arrested as soon as he arrived at the Toronto Airport with his children present.

[202] L.D.B. told the worker that she “had to get an order in order for C.D.B. to return the children to Canada from England.” As she did in her urgent motion, she did not mention that there were difficulties getting flight confirmations out of England due to volcanic ash clouds. Nor did she mention that at the time she was getting an urgent order representing that her husband was withholding the children in England, he was actively trying to get flights for their return, and that her husband and the children were in constant contact with her.

[203] On May 26, 2010, L.D.B. did not attend the motion in which my urgent order was returned before Campbell J. after C.D.B. had a chance to respond to the ex parte affidavit that was originally before me on April 27, 2010. Instead, she attended a meeting with Ms. Whalls at the Society. On this occasion, L.D.B. not only repeated the claims she made over the phone about MDB and his anger and aggression toward her but she also claimed that her husband C.D.B. was “emotionally abusive to her … never physically but emotionally.”

[204] Ms. Whalls referred her to the Women’s Rural Resource Centre (“the Centre”) to develop a safety plan. L.D.B. testified that she did go that Centre. She told them that her house was flagged as “Domestic Violence” by the Strathroy Police. According to L.D.B., she gave them some details of how her husband was emotionally abusive to her. However, no one from the Centre was called to testify and the Society worker did not contact them to determine what she told them. Nevertheless, L.D.B. called Ms. Whalls after she went to the Centre and told her that the Centre told her that they assessed her case as “very high risk.” Thus far, L.D.B. had made uncorroborated allegations of emotional abuse to the Strathroy Police, who flagged her home as “DV.” Armed with that flagging, she told the Centre about some sort of abuse perpetrated on her by her husband and the fact that the police flagged her home. According to L.D.B., the Centre then assessed that her situation was “high risk for abuse.” Based on this, Ms. Whalls told L.D.B. she needed to develop a safety plan.

[205] During the meeting with Ms. Whalls on May 26, 2010, L.D.B. received a call from her lawyer telling her that C.D.B. was being allowed back in the home and that the order of April 27, 2010 was set aside. L.D.B. told Ms. Whalls that her lawyer told her to stay in the house. However, according to her, the police told her to get out of the house as part of her safety plan.

[206] On May 27, 2010, Ms. Whalls got a call from L.D.B. who told her, despite her lawyer’s advice, she had taken the youngest child MXB out of school on May 26 and had gone to a shelter with him. After further discussions with her lawyer, she returned to the matrimonial home with the child. She told Ms. Whalls that she did not feel the situation in the home was “healthy.” L.D.B. called Ms. Whalls on May 31, 2010 and Ms. Whalls asked her about interviewing the children. L.D.B. stated that would do no good as they had been “coached by C.D.B..”

[207] Over the entire course of her involvement, Ms. Whalls never asked L.D.B. about her drinking. She stated that “there was no evidence of her use of alcohol.” I find that statement incredible. There were multiple expressions by the children of fear of their mother’s behaviour when she drank alcohol. These children were living with that reality. The Society owed a duty to the children to properly investigate instead of waiting for something to come to them to corroborate what the children were saying. The children’s calls should not have been ignored. Call after call from the children and others expressing the same concerns of children living in turmoil and fear should have resulted in something more than recordings of the call with the intent to pass it on to someone who may or may not do anything about it.

[208] The Society noted this case on the eligibility spectrum as concerns for alcohol and parent child conflict. They did nothing to investigate either concern by the time they were ready to close their file in June 2010.

[209] C.D.B. brought the children into the Society to be interviewed on June 1, 2010, immediately upon being asked to do so. The assigned worker, Ms. Whalls, did not interview the child MDB. She assigned a social work student to do the interview. Given the number of calls and expressions of fear by these children, I find the actions of the Society unacceptable in delaying any follow up interviews for almost three weeks from the first call and then assigning a student to conduct the interview. In my view, this was an inexcusable breach of their duties as they are enumerated in the Child and Family Services Act, s. 15. They did not investigate, nor did they make any efforts to provide services to children in distress. Even if the Society felt they had nothing to go on to further the investigation with respect to alcohol abuse, they knew these children were fearful of their mother and they needed to provide them with a resource to deal with their turmoil.

[210] On June 1, 2010, MDB told the student interviewing him that his mother was “messed up,” that she had threatened him and that she drank to excess. When asked how he knew she drank, MDB stated that in the morning she was okay but later she would be slurring her words, her hair would be messy and he could tell by her voice that she had been drinking. MDB stated that his mother was not the same person she was the year before and that she had changed because of her drinking. MDB described the affairs his mother had with the doctor and another family friend. He claimed that his mother was mentally abusive and she threatened to put the children in a home. He told the student that their mother had removed phones and would not let them talk to their father. He claimed that she drank while driving with him and the youngest child in the car. He stated that he reported this to the police once.

[211] Later evidence that came before me at the trial was from the police officer who took that call from MDB. P.C Vandenberg stated that he did take a call from MDB on May 24, 2010. The child expressed concern that his mother was drunk and she was driving his youngest brother to a soccer game. The officer went to the wrong location. After he realized that no one was at the location he was at, he drove to the home of L.D.B. Her car was in the driveway. He received no answer when he knocked on the door a number of times. He decided nothing could be done and he left. He did not follow up in any way with this report. The Society did nothing and they drew an inference that the police must have investigated and did not confirm what the child was telling them.

[212] I am concerned that the student, Matt Barns, who interviewed the child, did not testify. The court has no way of knowing what questions were asked and how they were asked. Ms. Whalls did not put the details of the interview in her affidavit that she filed with the court. The interview and investigation by the Society into the children’s fear and the alcohol use by their mother came to an abrupt end.

[213] Ms. Whalls stated that as the interview was “winding up,” MDB was asked if there was anything else the Society should know. MDB stated that the former soccer coach had tried to put his hand down RB’s pants and had put his hand on MXB’s crotch. Ms. Whalls stated that statement required the interview to end as protocol required a joint interview now be conducted by the Society and police as a sexual abuse investigation. The issue of the alcohol connected to the mother’s threatening behaviour of the mother was never revisited with the children by the Society.

[214] Ms. Whalls testified that she told L.D.B. that allegations of sexual abuse had been made against S. by MDB. L.D.B. was told that there would be an investigation and that she should not contact S. in advance of the police interview. L.D.B. did contact S. before the interview. She denied that Ms. Whalls told her not to contact him before the interview. She stated that she only told him that the police were coming down to interview him but she did not say why. I do not believe L.D.B. She admitted that she was having an affair with S. at this time. She claimed to the children and others that she wanted to “run away” with him. His own text to her that was seen by the children on February 28, 2010 was an exclamation that he never lived until met her and that he loved her.

[215] I accept the testimony of Ms. Whalls that she told her not to contact S.. I find that L.D.B. was warned of the nature of the investigation. I draw an adverse inference against L.D.B. for contacting S. before the interview and possibly contaminating the interview and investigative process.

[216] Ms. Whalls stated that the reason you want to prevent an alleged perpetrator from even knowing of an impending interview was to have the element of surprise. This increases the opportunity to get answers that you might otherwise not get. The element of surprise assists in preventing contamination of the interview by having the alleged perpetrator prepare for answers that he would give. However, the Society worker did not feel this conduct on the part of L.D.B. hurt the investigation. I do not agree. The sexual abuse specialist for the Society testified, Ms. Demers. She agreed that warning an alleged perpetrator of an impending interview would be concerning. L.D.B. protected a man she was having a relationship with instead of protecting her children. She chose, in my view, to warn him as opposed to finding out the truth.

[217] The investigation consisted of S. being interviewed. On consent of the parties, his police interview was filed as an exhibit. The police interviewer did not testify. The interview yielded nothing by way of incriminating statements. Only denials that he did anything that could be considered sexual abuse. I find that this whole process was deflected by not only the prior warning to S. but also the nature of the interview by the police. The focus was the investigation of “sex abuse.” They did not consider the possibility of “inappropriate touching.” I find that MDB was telling the student social worker who interviewed him there was inappropriate touching by S.. By the time this got to the police, it was a sexual abuse investigation with no consideration that the incident may have occurred as inappropriate touching that should have been warned against.

[218] The child MXB was interviewed by Ms. Demers. The interview was not long and did not disclose anything concerning. The child had just turned six years old and the interview was conducted in a manner that would avoid any leading questions. The child was merely asked open ended questions and he did not make any reference to improper touching.

[219] Incredibly, RB was also interviewed and he did confirm that S. touched his leg toward the higher part of his thigh. This statement was not included by the supervisor, Susan Schiedel, in her affidavit of September 9, 2010. She simply stated that RB did not disclose sex abuse. In her testimony at trial, she tried to justify the omission in her affidavit by stating that the affidavit was only a summary of some of the evidence.

[220] L.D.B. left the matrimonial home in the first week of June 2010. She left all three children to reside with her husband. She went to stay at a hotel for in excess of one month that was arranged and paid for by Victim Services. It must be emphasized that not only had her husband not been charged or convicted with any violent act against her at this time, she claimed to the Society, the police and in her court affidavits that he was never physically abusive to her. She had also noted to the police that “he was the gentlest man I know.” In a most ironic twist, L.D.B. was captured on one of the audio recordings filed in evidence stating: “what do you want me to do C.D.B., put it in writing or on a tape recording ‘you have never laid a hand on me?’” Nevertheless, L.D.B. managed to construct a “safety plan” that included her living in a hotel, the address of which was only disclosed to a very few people that included the Society, Victim Services, the police and her family members.

[221] On June 18, 2010, the Strathroy Police did an investigation at the B. family home. This investigation was to see if C.D.B. should be charged with assault with a weapon. L.D.B. attended the Strathroy Police station. She testified that she did this in order for them to have a record of her concerns that her husband and her son were trying to set her up by placing a vodka bottle in her bag. I find this testimony on the part of L.D.B. to be yet another manipulative projection on her part.

Investigation into Assault with a Weapon

[222] P.C. MacPherson testified that she was employed with the Strathroy Police on June 18, 2010. She was on duty that day when L.D.B. attended at the station sometime in the afternoon. This witness testified under summons. She claimed that she did not have access to her notebook as it was the Monday after a long weekend and her Staff Sergeant had her notes in a locked area that she did not have access to. She did have the written occurrence report before her.

[223] When she first testified in her direct examination, she stated that L.D.B. told her she believed that C.D.B. and her eldest son were trying to set her up in order that she would lose custody of her children. She stated that she found alcohol in her son’s bag. She stated L.D.B. thought her husband had placed it there in order to get her caught with alcohol when she was driving with the children.

[224] At this time, P.C. MacPherson thought there was some prohibition on L.D.B. consuming alcohol. This was not long after MDB had contacted the police about his mother drinking while driving his youngest sibling to soccer. That incident, I referred to earlier. The police did not follow through with that investigation. P.C. MacPherson stated that after L.D.B. told her about her concerns about being set up, she told her that she had gone to the matrimonial home for access and C.D.B. threw a basketball at her. According to P.C. MacPherson, as soon as she heard that, she told L.D.B. that she needed a written statement from her and as soon as she got the statement she had enough grounds to arrest C.D.B. for assault with a weapon.

[225] According to P.C. MacPherson in direct examination, she went out to the matrimonial home and was joined by another officer. She stated in direct examination that she arrested C.D.B. and she saw the other officer place him in his police cruiser, in front of the children. She then went on to state that she talked to the child MDB about the basketball incident and he told her it did not happen as his mother suggested. She then stated that the other officer who arrested C.D.B. told her that C.D.B. gave a similar version to what MDB gave to her. As a result, P.C. MacPherson stated she felt she did not have enough evidence to charge C.D.B.

[226] P.C. MacPherson also stated that MDB told her that he does drink alcohol with friends from time to time and he did have alcohol in his bag.

[227] When P.C. MacPherson was cross-examined by Mr. Hassan, she repeated her testimony that she attended at the B. home and spoke with MDB and saw C.D.B. being placed in the cruiser. She stated that the alleged basketball incident happened the day before and that she did not come into the police station that day as she had already emailed Detective McGuire (the head of the Domestic Violence Unit) at the Strathroy police station to tell him about her concern over the alcohol set up. According to P.C. MacPherson, L.D.B. did not tell her about the basketball incident until she asked her if there was anything else she wanted to add to her statement.

[228] At this point in her testimony, incredibly, P.C. Macpherson had a different recollection of the event. She proceeded to tell the court that she was developing a clearer recollection of the event. She changed her testimony. She then claimed she did not go out to the B. home at all. She stated that two other cruisers attended. It was only when they called her back and told her that charges could not be laid as they were getting a completely different story that she went out to the home. I find this officer’s testimony alarming. For a police officer to give such disparate versions of a potential arrest of a father, in front of his children, is appalling. The disregard for accuracy, thoroughness and objectivity is extreme. The lack of any understanding of the impact of what an officer might do on little children is frightening.

[229] I find that this incident is a further event that increased the trauma to these children and any negative feelings they were developing over their mother was exacerbated. This incident was reported to the Society worker, Ms. Whalls. However, given P.C. MacPherson’s lack of credible testimony, I cannot be sure which version of this event was given to or understood by the Society.

The Mediation and Agreement

[230] After L.D.B. moved out of the matrimonial home to live with her parents in Chatham in or about July 2010, she was seeing MXB but rarely her oldest two boys at first. The parties agreed to enter into mediation with a local mediator, Paula DeVeto. The mediation agreement was for the process to be “closed.” For written reasons that I released during the trial after a lengthy voir dire, I admitted the evidence of Ms. DeVeto into the trial. The probative value outweighed the prejudicial value of protected privilege that was assigned by the parties. The testimony of Ms. DeVeto was significant as it related to the manner in which L.D.B. used the process. It is significant to me that, despite her claim of emotional abuse, she entered into the mediation process at all. However, she did have legal advice and Ms. DeVeto indicated that she was vigilant in screening for power imbalance throughout the conduct of the mediation. Ms. DeVeto felt that with her legal representation she was able to come to numerous agreements that were reduced to writing by way of at least four memoranda of understandings (“MOU”).

[231] It is significant to note that during this process, after almost every MOU was reached, L.D.B. complained to her lawyer and sent emails directly to the mediator complaining that C.D.B. was breaching the agreements immediately upon him entering into them. These complaints were not shared with C.D.B. or his lawyer. In addition, when the assessment process was underway, L.D.B. complained to the assessors that C.D.B.’s coercive, abusive and controlling behaviour was consistent with the manner in which he obstructed the mediation process. Ms. DeVeto testified that, in her view, C.D.B. did not obstruct the mediation process and he was not coercive, abusive and controlling during the process. Despite these complaints, the mediation continued and the Society was in the process of closing their case. They felt that the parties were dealing with their own issues.

[232] The two eldest boys, MDB and RB, were interviewed by Ms. DeVeto. She confirmed that the boys told her exactly what they were trying to tell the Society and others for months, that was, the degree of fear about their mother’s conduct when she drank and the fact that her drinking and conduct was becoming more problematic. She felt that the boys were good and very polite boys who were expressing certain fears of their mother; however, they loved her and hoped that one day things would get better.

[233] On August 25, 2010, the parties entered into a MOU that was to be the subject of a “consent interim court order.” The order was drafted and approved and signed by the mother, L.D.B., and her counsel, but had not yet been signed by the father as of August 30, 2010. This agreement and draft court order provided that the father, C.D.B., would have custody of all three children and they were to have exclusive possession of the matrimonial home. Access was to be on certain terms and those terms had been set up to be eased in and increased with the two older boys. Because of their concerns about their mother, access was to be in a public place with all three boys once per week. They had an agreement that access would take place at Alexandra Park in Strathroy. At least five or six weeks of one afternoon access at the park had taken place in that setting before August 30, 2010. The mother, L.D.B., would bring a picnic lunch and the boys would be given the opportunity to play together and with their mother.

[234] By August 30, 2010, the father, C.D.B., and the two eldest children had what they wanted. All three children were in the father’s custody and they had had access to their mother on agreed terms that were intended to rebuild a relationship with their mother. L.D.B. was in the complete opposite position she was in when she obtained her urgent order on April 27, 2010. She no longer had custody and she was living out of the matrimonial home. The preceding state of affairs existed going into the access of August 30, 2010.

The Events of August 30, 2010

[235] A dramatic and severely traumatic event occurred in the park in the afternoon of August 30, 2010. This event would change the life direction of this family and, in particular, these children for years to come. This event also played a significant role in driving the conduct of mainly the professionals and the court from that day forward.

[236] C.D.B. drove the children to the park at around 1:00 p.m. on August 30, 2010. It is not disputed that the children went to see their mother who was at a picnic table with lunches prepared. C.D.B. drove out of the parking lot and away from the park. The mother and children had some things to eat and the two youngest boys went off to the children’s play area to try to catch crayfish from the stream. Shortly after the younger children left to play elsewhere in the park, MDB and his mother decided to take a walk and talk in another area where there was the stream and an old pathway for a small rail line that use to be operative. They walked and talked for a short while and both MDB and L.D.B. were pleasantly surprised that they were communicating at all. Both testified that they were enjoying this interchange. Their agreement on what happened at the park completely differed at the point they both stated that they crossed over a little bridge over the stream.

The Incident by the Bridge

[237] There was extensive evidence and submissions relative to details of the events of August 30, 2010. Much of the detail given at trial by the various witnesses is not material to the issues that I must decide. L.D.B.’s testimony gave versions of this crucial event that differed in many ways from previous testimony she gave either in the form of previous affidavits or statements that she made to the police and her testimony at her son’s preliminary inquiry. Much of her testimony at trial I find to be a mixture of some facts and allegations and her after the fact suspicions of a conspiracy that she attributed to her husband, C.D.B., and her son MDB, with some form of knowledge of the conspiracy on the part of her child RB. I do not accept any of her evidence in this regard.

[238] She asserted at trial that MDB attacked and tried to kill her that day with the full knowledge, support and planning of her husband, C.D.B. Her version at trial was replete with her speculation that there was some form of nefarious meaning to be attributed to where her husband parked that day and the manner in which he parked. She also speculated in the same way as to who got out of the car first and that MDB was somehow continuing his plotting with his father as he delayed joining everyone else and continued to talk to his father.

[239] C.D.B. and MDB testified that they arrived and parked at the park in the same fashion as they always did. MDB did not delay his joining everyone and, when he did, his mother asked him to get the picnic cooler as it was too heavy for her. He did so and joined the others. It is of no significance to me who suggested that the two youngest children go off and play or fish. The fact is they went off by themselves to play in another area that would prevent them from witnessing what later occurred between their mother and brother.

[240] L.D.B. stated that it was her son MDB who asked her if she ever thought someone was following her and then pointed in a direction for her to look to see if someone was there. She claimed that she looked and then felt a couple of hits that hurt her head. She stated that her son hit her a number of times, possibly eight to ten times with a rock, and she fell into the stream. According to her, he got on top of her and he shoved her head under the water in an effort to try to drown her. She struggled and freed herself and eventually ran across the bridge to seek help from a man who was nearby with his little daughter. She claims that she yelled to the man to call 911 as her phone was not working. She also testified that when she was escaping from the stream, she saw her son MDB with a knife.

[241] MDB testified that his mother then asked him if he was aware that there had been cougar sightings in the London area and he said no. According to MDB, his mother then pointed in a direction and asked if the cougar might be there. Upon her pointing, MDB stated that he looked away and, when he turned back, his mother was lunging at him with a knife stating that he would no longer be “his father’s side kick.” MDB stated that he was injured by the knife and he tried to defend himself and put his arms up and around his mother. At that point in the struggle, he fell into the stream and his mother got on top of him and slashed at him again with the knife. MDB testified that he grabbed a rock from the stream and hit his mother a couple of times on the head and at that point she scrambled out of the stream and ran out of the embankment.

[242] There was a witness who did observe certain things that day. Gary Flynn testified that he was at the park at the time. He stated that he was sitting on the grass area near a large tree about 300 yards from the stream and bridge that was the subject of the incident. He had his little daughter with him. She was playing and he was watching out for her. He also had his dog, which was secured near the tree. Mr. Flynn stated that he was also working on his computer and he looked up from time to time to check on his daughter and the dog, and scanned the surroundings.

[243] Mr. Flynn testified that he saw what he thought to be a young man and woman horse playing by the stream. He stated that at one point he saw the man jump on the woman’s back while they were walking as if they were in a continuation of their horse play. He stated that they disappeared for a time and then he saw the woman come up from the stream holding her head and obviously hurt. She was yelling that her son hit her. He went to her and he described her as coherent, deliberate and clear. He also stated that she was talking on the phone to someone as if talking to a friend.

[244] Mr. Flynn described the younger man coming toward them and holding his side as if injured. He was yelling “mom.” Mr. Flynn told him to stop where he was and that he had called 911. MDB stopped and lay on the ground. At some point, the woman said she was sorry to the little girl and told her everything would be all right.

[245] I find that MDB’s version of events is most consistent with Mr. Flynn’s observations. Mr. Flynn was not in a good position to see everything. Three hundred yards is a long way to see any details. Neither L.D.B. nor MDB testified about anyone jumping on the other, either in horse play or not. However, that observation is more consistent with MDB’s statement that he put his arms up to his mother in defence of the slashing with a knife and then fell into the stream.

[246] Most relevant to me is that L.D.B. stated that her son had her on her back in the stream and that he had pushed her head in the water and tried to drown her. Mr. Flynn also stated that when the female approached him, some of her clothing was wet but some not. He stated that her hair was not wet and her back was not wet. He also stated that he did not have the impression that she had been immersed or dunked in water. This evidence clearly demonstrates that L.D.B. was not on her back in the stream as she claimed and her son did not push her head in the water in order to drown her.

[247] I also find that L.D.B.’s testimony that her son hit her on the head eight to ten times with a rock is inconsistent with reality. MDB was a strong, athletic boy. If he forcefully hit his mother on the head with a rock that many times, and then got on her in the water and tried to drown her, she would not have presented as clear, coherent and deliberate to Mr. Flynn only a few seconds after this form of alleged assault. Her injuries were more consistent with being hit on the side of the face and head with a rock in self-defence while she was on top of MDB in the stream.

[248] I find it significant that L.D.B. did not attempt to call 911. Instead she called her father and her lawyer. I find that type of conduct is more consistent with ensuring that there would be consequences rather than getting help for herself and her son. This type of conduct continued from the time L.D.B. went to the hospital. She received a couple of staples to close a wound on her head. She wanted to know if her son was still in the hospital, not to check on his wellbeing but to see if she could let him see what he had done to her.

[249] L.D.B. was going to be discharged from the hospital that same night. Instead of just being discharged and going straight home to recuperate, she insisted on attending at the police station in order to make a statement about her son attacking her. L.D.B. gave a videotaped statement of what happened to her and that video was also filed as an exhibit on consent. The obvious injuries to L.D.B. were to her one eye that was reddish black and swollen as a result of being struck. There were no other injuries that were obvious from the video. After the interview, L.D.B. claimed that she was dizzy and she was taken back to the hospital. She remained there for another five days.

[250] The police took a number of photos of the injuries suffered by L.D.B.. They demonstrated the swollen, discolored left eye and one other head wound that is consistent with the wound that required staples. No other injuries on the rest of her body were noted and no other injuries on the rest of L.D.B.’s body were testified to.

[251] I found it significant that for the next five days while L.D.B. was in hospital and for a number of days that she was at her mother’s home in Chatham, either L.D.B.’s sister or her mother took voluminous pictures of her injuries daily in order to have a moment by moment chronicle of her healing process. L.D.B. later put these pictures into a computer program that allowed her to have a picture and a running commentary about her “feelings.” I find that this conduct on the mother’s part, taken together with other events I will detail shortly, go more to her need to present herself as an extreme victim in order to give credence to her claims of abuse. There is no doubt that she sustained injuries as a result of a physical altercation with her son MDB. My findings are that those injuries were sustained as a result of MDB defending himself against his mother. The audio recording of March 26, 2010 I referred to earlier was almost a foreshadowing of the dynamics between MDB and his mother that could erupt into the explosion that it did. It bears repeating. While L.D.B. was demonstrating erratic behaviour and is heard ranting and swearing on the audio about the two men she had affairs with, she is heard to demand of MDB “move your leg” as she is going past him. He is heard to say “what are you going to do mom hit me?”

The Impact of the Criminal Charges

[252] MDB was 15 years old when he was charged with a serious offense. He was charged with a number of charges, the most serious at the time was assault causing bodily harm and with a weapon. The Society brought this application on September 10, 2010. They based much of their claims that the children were in need of protection on the basis that MDB was charged with these serious offences.

[253] The protection application was signed by the supervisor on this Society file, Susan Schiedel. It was not until her testimony at this trial that we learned that all of the information in the application that Ms. Schiedel placed before this court, in the application and supporting affidavit, came from the notes of the workers who reported on what the police had told them.

[254] The worker assigned to the file long term was Tamil Upton. She was assigned on October 29, 2010. She testified that the Society believed that the child MDB assaulted his mother. According to her, very serious charges were laid and the Society needed to take steps to ensure the safety of the other children and the mother. Ms. Upton also stated that she believed the children’s father, C.D.B., played a role in the assault. She took that position, not on the basis of any investigation that she did but on her discussions with the mother and on her reliance that the police did a thorough investigation, in addition to other professionals expressing their views to her.

[255] The Society felt from the outset of this case that MDB was influenced by his father, who was an abusive, controlling and coercive man. They claimed that the two younger children, RB and MXB, needed protection against their father and from their brother, MDB. The Society did not talk to the child MDB. They never even sought to see how he was coping with all of this or to determine what, if any, services they could provide him. They treated him as a perpetrator of a major crime against his mother, at the behest of his father.

[256] Ms. Upton was aware that MDB filed his own criminal complaint against his mother. In that complaint, he alleged that his mother attacked him with a knife and he was defending himself. The Society never even considered this as a possibility. Once again, they relied on the fact that if the Crown did not take this seriously and withdrew MDB’s complaint, there must not have been anything to it.

[257] The Society acted throughout the pre-trial and trial process as if their counsel was the lead counsel for the mother. Mr. Price, counsel for the Society, did most of the legal arguments and made most of the objections to the admission of evidence. It became very clear that the Society, the mother and Barbara Hoover, the lawyer for the youngest child MXB, were of one interest throughout the trial.

[258] When the child MDB testified at this trial, I wanted submissions from all counsel on the extent to which the Society could be allowed to cross-examine a child who was the subject of their own application. I was advised that there was no case law on the issue and was assured by counsel for the Society that he would govern himself accordingly, recognizing that he was in a complex legal position. The cross-examination proceeded fairly under the circumstances.

[259] I find that the Society never sought to identify the parental conflict they noted as part of their eligibility spectrum. They never investigated the source of that conflict. They merely accepted it as being a father who was the master planner and executor of major abuse against the mother and victim, L.D.B.. They never interviewed C.D.B. or any of the witnesses that testified on behalf of C.D.B.. I found it shocking to hear the main worker, Ms. Upton, who was assigned after the criminal charges were laid against MDB, admit in her trial testimony that looking back on it in hindsight, it might have been a good idea to get C.D.B.’s side to the story. She also conceded that it might have been useful had she interviewed his collaterals.

[260] Ms. Upton was so aligned with L.D.B. she even demonstrated her obvious view that she felt L.D.B. was a victim in need of protection by sitting beside her throughout the whole trial on the days she attended. That represented most of the 154 days. At one point in the trial, I had to caution both Ms. Upton and L.D.B. to stop reacting outwardly to some of the evidence and stop passing notes to each other or pointing out certain things in written documents to the other during the testimony. It was not only distracting to the court and the witnesses, but it was an obvious demonstration of a lack of objectivity and professionalism. The Society is a statutory litigant and, whatever the outcome, they must work with the children and parents subsequent to this case. This type of conduct added to the dynamic of “them against us” that prevents people from having the ability to work with each other.

[261] Ms. Upton admitted in evidence that she had multiple meetings, phone calls, emails and text messages with L.D.B. She did not have such meetings with C.D.B. The only meetings she did have were often strained as a result of the circumstances or very short. She clearly acted throughout the conduct of this case as if C.D.B. was this coercive, abusive, manipulative man. She testified that she believed he was, and that he was responsible for MDB’s attack on his mother in Alexandra Park on August 30, 2010. She believed that because she was relying on the police. She stated that she assumed the police did a thorough investigation and that MDB was guilty.

[262] She took the position from August 30, 2010, supported and sometimes directed by her supervisor, Ms. Schiedel, that MDB was guilty and that his father C.D.B. did not recognize this. As a result, C.D.B. could not be trusted and, therefore, the Society did not support the child MDB living in the home with C.D.B. and his other brothers. I find that there was no evidence to support the position taken by the Society. C.D.B. gave them a plan to protect all of the children and allow them to be together. The Society stubbornly rejected this plan largely on the basis of what L.D.B. was representing to them.

[263] Throughout the period of time that MDB was under bail conditions and a curfew, L.D.B. tried a number of times to get the Society or the police to have his bail revoked, claiming that he breached terms of bail. The evidence did not support those allegations either. L.D.B. complained to Ms. Upton that MDB was spending time with his brothers unsupervised. This was not the case. She called the police on September 17, 2010 to tell them that MDB was at a dance past his curfew. There was also no evidence that happened. She got the Society to oppose A.C. as a supervisor for the boys’ access. C.D.B. had advanced her to the court and the Society took the position that she was inappropriate. The Society felt that A.C. was C.D.B.’s girlfriend. They received that information from L.D.B. She received that information from a copy of a Facebook page of MDB sent to L.D.B. from her friend F.S. in England. In it, MDB called A.C. the best “step mom ever.” That reference, as it was revealed in evidence, was MDB referring to her in that way as he had been living at her house when she was his surety. MDB testified to that and both A.C. and C.D.B. denied they had any relationship other than friends. This is yet another example of the Society leading the charge that was sparked by unsubstantiated allegations of L.D.B.

The Evidence of Ms. Upton and her Supervisor, Ms. Schiedel

[264] By the time Ms. Upton was assigned to this case, she had worked with the Society for five years. She had her MSW degree. Her first contact with the family was on October 29, 2010 during the motion before Vogelsang J.. Ms. Schiedel was her supervisor.

[265] At the motion before Vogelsang J., the Society and the lawyer for the youngest child, Barbara Hoover, strongly supported the mother’s position that the youngest child be taken from his father, even though he lived in the home with his father all of his life and had been living with his father and brothers since his mother left the matrimonial home in the first week of June 2010. However, in the motion before Vogelsang J., the Society claimed that the child MDB was influenced by his abusive father and he was a threat to not only his mother but also his siblings.

[266] Largely based on the representations of the Society and Barbara Hoover, Vogelsang J. changed the interim custody of MXB. Vogelsang J. accepted the submissions of the Society and Ms. Hoover that transferring custody to the mother was the only way to protect the child from his father and his older brother. Vogelsang J. stated in his reasons for his decision:

MDB is apparently lost. RB is slipping away. It is clear to me even on this conflicting evidence that if MXB stays with his father as his custodian, no order could protect him adequately from the potential of serious emotional harm.

[267] Vogelsang J. did not have the opportunity to hear and see all of the evidence that I did. Vogelsang J. was left with the limited and un-scrutinized allegations and serious criminal charges that were hovering over this family until this lengthy trial was nearing a close. A striking example of the difference in the evidence was the testimony of the Society supervisor, Ms. Schiedel. Before Vogelsang J., she swore an affidavit that asserted that there was a witness to the alleged assault on the mother on August 30, 2010. At paragraph 27 of her affidavit of September 9, 2010 she stated:

The incident was witnessed by a citizen who does not know the family. That individual reported having witnessed a male tackle a female and attempt to throw her into the water.

[268] This certainly gave the impression to Vogelsang J. that the witness, who was later identified as Mr. Flynn, saw everything. I have detailed Mr. Flynn’s testimony at this trial earlier in these reasons. The impression given to Vogelsang J. was wrong. Mr. Flynn did not witness the whole event. He was far away and distracted. He never saw a male tackle a female and try to throw her in the water as represented by Ms. Schiedel. He testified he saw a male and a female horse playing. He lost sight of them for a while but never testified that he saw a male try to throw a female into the water.

[269] Ms. Schiedel did not know what Mr. Flynn would say in his testimony. She never interviewed him and she completely relied on third hand information given to her. This was not made clear in her affidavit. The representation in her affidavit before Vogelsang J. gave the distinct impression that she was directly knowledgeable about Mr. Flynn’s possible testimony.

[270] The explosive dynamics surrounding this case continued to move the justice system in a manner that impacted negatively on these children. I do not say this as a criticism to the judges who had to hear the rapidly escalating pre-trial motions. They all had to act on what was presented to them in the small but extremely contested snapshot in time. Often, what was presented to them was inaccurate.

[271] The order of Vogelsang J. was appealed and leave was sought to stay that order. Hockin J. granted such leave pending the appeal on November 19, 2010. Only three weeks after the child MXB was moved to live with his mother, he was sent back to live with his father.

[272] From approximately November 19, 2010 until April 1, 2011, a further four months, MXB and RB lived with their father. MDB was living with a surety due to the criminal charges against him and he saw his brothers in the home of his father under strict terms that required supervision.

[273] C.D.B. was in the process of making an application to ease the bail restrictions in order for the children to have easier access between each other and allow MDB to live at home with his brothers. He testified that he was informed by the Crown and the Society that if he proceeded with this application, the charges against MDB would be increased. He proceeded with his application to change the bail conditions. On February 1, 2011, MDB was re-arrested and charged with attempted murder of his mother. There was no new evidence presented or disclosed at this trial that justified the increase in the charges from the date of the original charges.

[274] It was very disturbing to me that L.D.B. admitted that her brother D.T. was an OPP officer and that one of the videotaped interviews of Detective McGuire showed him telling one of the children that he knows his Uncle D.T. and that he used to work with him when he worked at the Strathroy police department. L.D.B. was heard on one of the audio recordings telling C.D.B.’s sister that she could talk to her brother in order to get to the bottom of the Dr. N. charges. The suggestion being made in the evidence was that L.D.B.’s brother may have had a role to play in influencing the conduct of the criminal case. D.T. was not called as a witness and I am unable to make any findings in this regard. I can only conclude that the increased charges did not happen as a result of new evidence.

[275] MDB spent an additional 23 days in jail while his new bail hearing moved agonizingly slow through the criminal process. The Society continued to play the role of the mother’s advocate throughout this period. Ms. Upton constantly demanded the opportunity to visit with the two younger children in the father’s home. She seemed oblivious to the turmoil that the father and the three children were dealing with. MDB was in jail once again. The father was dealing with that criminal process, as well as trying to support his son while he was back in jail. He also had to deal with the emotional fallout on his other boys, especially RB, who was missing his brother horribly. Both C.D.B. and his lawyer were in constant communication with the Society via Ms. Upton, their lawyer Mr. Price and other counsel in order to attempt to work out access, the children’s schedule and provide some sense of normality in the children’s lives and to attempt to deal with the criminal lawyers in order to advance MDB’s criminal process.

[276] Despite the fact that there was extensive communication and negotiations to achieve contact with the Society worker, Ms. Schiedel wrote a letter to the Crown during the second bail hearing for MDB stating that C.D.B. was not cooperating with the Society. He was not communicating with or allowing the workers to see the children in his care. I find that to be a gross misrepresentation of the reality at that time. This misrepresentation did not surface until Ms. Schiedel was cross-examined at this trial. She was not called as a witness by the Society. She was summoned by the father and declared an adverse witness in order for the father’s lawyer to cross-examine her.

[277] The bias in favour of the mother, demonstrated by the Society from early May 2010, continued and grew as both the criminal and child protection proceedings moved forward. The Society brought a motion to the Divisional Court in March 2011 asking that the father’s appeal of the order of Vogelsang J. be dismissed for failure to perfect his appeal. Similar representations about C.D.B.’s lack of cooperation were presented to the court at that time. The Society made representations that C.D.B. was also making it difficult for the mother to get access to the child MXB. This was a further misrepresentation of the facts. The Society did not tell the court that the father had been giving the mother extra access of one night per week that was not part of the access order of Hockin J. of November 19, 2010. That motion to dismiss the father’s appeal was granted by Bryant J. on April 1, 2011. Once again, the custody of the child MXB was transferred back to his mother, who represented that she continued to reside in Chatham, Ontario with her parents.

[278] The endorsement of Bryant J. was inadvertently not sent to C.D.B.’s lawyer, Mr. Hassan. Despite the lack of service, the Society vigorously demanded that the child MXB be transferred to the mother within a couple of hours of the reasons of Bryant J. being released. The Society made no efforts to talk to RB, who was still residing with the father, about the impact of this order. They completely ignored what emotional impact might befall on him.

[279] No one at the Society gave any thought to a reasoned calculation of the timing of a custody transfer, given the re-introduction of the Vogelsang J. order. The weekend starting the day of the release of Bryant J.’s reasons was rightfully C.D.B.’s weekend with MXB. Instead, they took the position that there should be an immediate transfer of custody and they were ready to get the police involved to make that happen. Eventually, this fact was pointed out by Mr. Hassan and MXB was transferred to the mother on the Sunday evening. The child MXB has primarily resided with the mother, L.D.B., in Chatham since April 1, 2011.

[280] The child MXB has had access to his father and brothers largely on alternating weekends. All access that involved MDB was restricted due to the terms of his bail up until January 2013. This issue was always driven by the criminal process and the Society, the mother and the lawyer for MXB consistently advancing the position that MDB represented a risk of harm to his mother and his siblings.

[281] C.D.B. testified that he had a mounting sense of frustration that the Society was not listening to his children. He did not trust them. The Society made a determination early in the involvement of Ms. Upton that they would not allow Ms. Upton to be alone with C.D.B. The stated reason was that, on one of the early discussions with C.D.B., he made a comment that the worker appeared to be using an inducement to his child in order to get him to say or do something. He stated that seemed to be a technique used by perpetrators of abuse. I agree that comment was inappropriate. However, pointing out to C.D.B. that comments like that are inappropriate would have been the proper way to handle this. The Society should have attempted renewed efforts to work with him. They did not. Instead, any time a worker went to see the children in C.D.B.’s home, another worker had to be with them. That reduced the times that were available to see the children. The Society also took the position that they would not see the children after 4:30 p.m.. This was in spite of the fact that the children and the father were dealing with complex daily schedules of the children and the emotionally charged issue of the criminal charges against MDB.

[282] Partly as a result of the manner in which he felt he was being treated and partly as a result of the fact that he felt no one was doing anything about dealing with the claims that he and his children were making about L.D.B.’s increasing erratic behaviour while she was consuming alcohol, C.D.B. did not share with the Society that he had audio recordings that tended to corroborate what he and his children were saying about the erratic behaviour and alcohol issues. At first glance, it would appear that C.D.B. was wrong not to provide that evidence to the Society. However, when one looks at the total conduct of the Society throughout their involvement, C.D.B.’s concerns about its bias in favour of L.D.B. was reasonable.

[283] When Mr. Hassan on behalf of his client sought to introduce the audio recordings, the Society vehemently opposed the recordings being admitted into evidence. Their lawyer, Mr. Price, took the lead in the conduct of the voir dire and conducted to determine their admissibility. I find that the Society conducted themselves generally in the conduct of this case in a manner that took them outside of the legal expectations of a statutory litigant.

Legal Considerations of Statutory Litigants

[284] Two Supreme Court of Canada cases comment on the significant consequences of state intrusion in the form of child apprehension proceedings (New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 and Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519). I can only emphasis that when the state has the statutory duty to investigate abuse and protect children, that duty carries with it a high onus to conduct themselves in a professional and objective manner.

[285] In Children’s Aid Society of London and Middlesex v. E.V.F.S., 2004 34346 (ON SC), [2004] O.J. No. 1216, at para. 14, Vogelsang J. stated:

THE NEED FOR FAIR DEALING AND FAIR PROCEDURE

41 Just dealing with a case in accordance with the Rules and acting to ensure fair procedure for all parties was recently examined by Justice Sherrill M. Rogers in Children and Family Services of York Region v. P.E., J.M. and B.E. (2003), 126 A.C.W.S. (3d) 402, [2003] O.J. No. 4884, 2003 CarswellOnt 4138 (Ont. Fam. Ct.). Although this case involved a determination of costs, considerable reliance was placed by Justice Rogers on Children's Aid Society of Waterloo Region v. B.-C.(Z.) and B.-C.(J.) (1996), 1996 4742 (ON CJ), 67 A.C.W.S. (3d) 522, [1997] W.D.F.L. 315, 10 O.F.L.R. 124, [1996] O.J. No. 4245, 1996 CarswellOnt 4670 (Ont. Prov. Div.), and the following references to fairness in the exercise of a society's statutory mandate found therein.

[3] Protection agencies are not ordinary litigants. The society has a mandate to protect children, and children have a right to be protected.

[4] As party of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities a society must exercise good faith, due diligence and reason in its investigations. A society is not free to assume that "if there is smoke, there must be fire".

[5] Nowhere is a society authorized, in the name of the powers entrusted to it by the legislature, to ignore or trample on a parent's rights.

[7] An ordinary person perceives a society as having acting fairly in the following circumstances:

(a) before launching a court proceeding, the society has undertaken a thorough investigation [of] allegations or evidence of a child's need for protection;

(b) as part of its thoroughness, the society has recognized and acted on its duty to look beyond an allegation for corroboration or independent evidence of it;

(c) as part of its thoroughness, the society, mindful of its duty under subsection 2(2) of the Act to ensure that children and parents have an opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, has interviewed the person who is alleged to have created the need for protective intervention, invited that person to have counsel involved, permitted that person an opportunity to reply to the allegation, and then weighed the competing versions for their likely reliability and credibility - before the society proceeds to "validate" the allegation and draw the unequivocal conclusion that the need for protection exists;

(d) the society has demonstrated its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made;

(e) as part of is [its] thoroughness, the society, has been alert to rancour that might reasonably be animating the allegations;

(f) the society has reassessed its position as more information becomes available, even if a court hearing is in session at the time; in short, it has continued its investigation up to the time of a final court determination of the alleged need for protection, and done so in a vigorous professional manner; and

(g) the society has investigated all pieces of relevant information, not just those pieces for which there is uncontroverted proof.

[286] Children’s Aid Society of the City of Kingston and County of Frontenac v. J.M.S., [2004] O.J. No. 844 (S.C.) outlines the duty of fair and frank disclosure on the Society and the requirement for fair and balanced pleadings.

[287] Re. R.M.C., 1980 3794 (ON CJ), [1980] O.J. No. 1768 (P.C.) stands for the proposition that a Society must bring all material evidence before the court, even if it goes against its case. Children’s Aid Society of Algoma v. R.M., 2001 25594 (ON CJ), [2001] O.J. No. 2441 (C.J.), also requires the Society to present full and impartial evidence to the court.

[288] Children’s Aid Society of Hamilton v. E.O., 2009 72087 (ON SC), [2009] O.J. No. 5534 (S.C.) outlines the disclosure obligation of the Society and the duty to present all relevant evidence and act in a fair and just manner.

[289] In this case, the society did not live up to most of the duties itemized above. My further reasons will elaborate more on this vexing issue.

The Private Investigators

[290] C.D.B. hired the private investigation firm, MKD International, to do surveillance on his wife. The firm was paid for by C.D.B.’s brother in-law, D.B., and instructed by C.D.B.’s lawyer, Mr. Hassan. Neither C.D.B. nor D.B. had any communications with the investigators.

[291] The Society, the mother and Ms. Hoover all opposed the admission of any evidence from the private investigators. At first, they claimed that they never received a report, although they had been served with affidavits of some of the investigators that had been the subject of a previous pre-trial motion. In addition, Henderson J. granted a pre-trial order allowing all parties to question any of the investigators on affidavits filed. In addition, the Society, the mother and Ms. Hoover also advanced motions to strike affidavits of other investigators who assisted Stuart Darnley, the lead investigator, in his investigation. That motion was successful, largely due to the issue of late filing of those affidavits. No one took advantage of that order to question the investigators. A voir dire was held. Before the voir dire was completed, all counsel who previously objected to the evidence withdrew their objection.

[292] Mr. Darnley was an experienced police officer, formerly with the Toronto Police Service for over 30 years. He used a number of other investigators to assist him. They were all former police officers with extensive experience in criminal investigation and surveillance. The investigators who worked on the file and also testified at this trial were: David Lewis; Michael Finn; and John Beswick.

[293] The investigators were retained to conduct surveillance on L.D.B. initially for a 17 day period from February 10, 2011 to February 27, 2011. Surveillance took place on 12 days within that period. The investigators were further retained for an additional four days from March 3, 2011 to March 6, 2011.

[294] It is not necessary to detail all of the testimony related to the surveillance. I heard the testimony of all of the investigators. I found that each of the investigators was candid about their investigation and the limitations of their investigation, for the most part. I saw each of the videotaped surveillance during the testimony of the responsible investigator.

[295] There was surveillance of the mother, L.D.B., and the child MXB sleigh riding in a park. The investigators were of the opinion that L.D.B. was under the influence of some substance as they felt that her speech and movements that day reflected such. I saw those videos and I am unable to find as a fact that she was or was not under the influence of an intoxicant on that day. There are too many other explanations that might account for her voice, at times either playful with her son or slurring her speech. At times she may have been unsteady due to a substance or simply walking that way due to the weather and ground conditions.

[296] I do feel I am able to make certain findings as a result of the remaining surveillance videos and testimony of the investigators. I find that during the surveillance period, L.D.B. was observed to make large purchases of alcohol at various LCBO stores on different days within a very short period of time. Many of the purchases were made during a period in which she had the care of the youngest child while under the scrutiny of the court as a result of allegations of alcohol abuse being made and when she was restrained by court order from drinking alcohol to excess while with her child.

[297] Under the above circumstances, the frequency and amount of alcohol purchases she made are concerning in themselves. When taken together with other acts observed and previous evidence captured on audio recordings, these purchases take on a greater significance when I am considering the inferences that can be drawn.

[298] On February 24, 2011, L.D.B. was observed to attend at an LCBO during her lunch hour from her work in Windsor. She purchased a 750 millilitre bottle of vodka. She left the store without even waiting for the clerk to place the bottle in a bag. She walked out of the store simply holding the bottle in her hands. She returned to her vehicle and placed the bottle in her car. She stopped at a convenience store and purchased a small bag of something and then proceeded to travel to the Chatham area, and then the Strathroy area to pick up her parents and son MXB. On more than one occasion, the investigators clocked her speeds in excess of 120 kilometres per hour on two lane highways. This was concerning to the investigators who witnessed this, as on a few of those occasions the child MXB was in the car. The investigators did not call the police or the Society. They did not want to blow their cover.

[299] On February 26, 2011, L.D.B. stopped at an LCBO in Chatham and purchased a 750 millilitre bottle of rum and a 750 millilitre bottle of Smirnoff vodka. She then travelled to a variety store and again exited that store with a small bag. She then went to the trunk of her car and brought the bottles of liquor into the car with her. She was then observed leaning out of the driver’s door while she poured out part of the contents of a pop can. The bottles of liquor remained in the front seat of the vehicle with her. She was observed by the investigator to lean over in the direction of the passenger’s seat after she emptied a portion of the pop can out the window. He expressed the view that, as a result of his many years of experience as a police officer, the conduct of L.D.B. that he witnessed was consistent with someone who was making efforts to conceal that they were drinking alcohol while driving. When taken together with all other evidence in this trial, I agree that, on the balance of probabilities, L.D.B. was conducting herself in a manner on this day that it is most likely she consumed alcohol in a secretive manner in her vehicle.

[300] I find that on February 27, 2011, L.D.B. was observed to attend a parking lot of a plaza in Windsor, Ontario. She retrieved a shopping bag and a plastic bag from the trunk of her vehicle. She took those bags and deposited them in a garbage can in the parking area of the plaza. When she went into the store, the investigator went to the garbage can and retrieved the bags that contained two empty bottles of Smirnoff vodka. L.D.B. testified that she had placed those plastic containers in her trunk from a party at her brother’s home a number of weeks previous to that. She stated that she did not want to leave those bottles as clutter at her brother’s home and this was a way to help with clean up. She stated that she forgot about the bottles until that day and took the opportunity to dispose of them in that parking lot.

[301] I find L.D.B.’s explanation stretch any limits of credibility and I do not believe her. I find that she was disposing of those bottles in a manner that would provide the optimal opportunity to keep her alcohol use a secret.

[302] Each one of the events above, that demonstrated that L.D.B. purchased large amounts of liquor in a short time, taken alone, is not significant. However, when looked upon in the totality of the evidence, the children’s expression of concern about alcohol and behaviour of their mother, the father’s expressed concerns, and the video and audio recordings corroborating much of what the children and father were saying, these purchases and conduct take on significance that they would not otherwise have taken on.

[303] A the time of all of the purchases, she was, by consent court order, prohibited from drinking alcohol to excess while her child MXB was in her care. L.D.B. knew that she was under scrutiny at this time due to the allegations being made by her children and her husband. All of the above demonstrate to me that L.D.B., at its least, exercised an error in judgment in making the purchases that she did at the time she did. At its worse, this demonstrates that she has a significant problem with alcohol that she cannot control. I find the latter proposition to be true.

The Actions of the Society Following the MKD