ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW APPEAL

Court File No.: 1096-14
Date: 20140408

B E T W E E N:

TERRI FRANCES BEATTY

Appellant In Person

Appellant

• and -

DAVID PAUL SLUSKI

Respondent In Person

Respondent

HEARD: April 2, 2014

REASONS FOR JUDGMENT

[Appeal from the Interim Order of the Honourable Justice S. O’Connell
dated February 20, 2014]

Fragomeni J.

[1] The appellant mother brought a motion for contempt as against the respondent father. The contempt alleged by the mother relates to the father leaving the two children, Melissa and James alone in the care of the father’s older daughter Neve, in contravention of the order of Justice O’Connell dated September 30, 2013. Paragraph 8 of the September 30, 2013 order states:

The Respondent father shall ensure that the child Neve will not be alone with the children.

[2] The father’s daughter Neve is 13 years of age. The children who are the subject matter of these proceedings are Melissa Sluski-Beatty, born December 30, 2008 and James Beatty-Sluski born July 19, 2005.

Reasons and Order of Justice O’Connell

[3] In her reasons for disposing of the motion and making the order Justice O’Connell stated the following as set out in the transcript filed before me:

THE COURT: Yes, thank you. So, I’ve endorsed the record as follows: Ms. Beatty is acting in person today, assisted by Ms. Lawson, duty counsel. Mr. Sluski is also acting in person today, assisted by duty counsel, Mr. Madott. I have reviewed all of the mother’s materials very carefully – this is her motion – as well as the police and CAS letters that were provided to me from the body of the court today – filed today – and the email from Ms. Peacy from the Children’s Lawyer’s Office as well, that was provided to me today. The mother has brought a further motion for contempt against the father, seeking to find the father in contempt. She is also seeking that the father’s access to the children be supervised. The mother has once again reported the father to the Children’s Aid Society…

MS. BEATTY: It wasn’t me that reported him, Your Honour.

THE COURT: … for sexual abuse and sexual impropriety. The Children’s Aid Society has started a new investigation and has opened a file. Ms. Ziotek has provided a letter regarding her investigation dated February 5, 2014, indicating that the investigation is not yet complete and that, and that the Society – and I quote – “does not have an opinion, nor takes a position with respect to the custody or access arrangements at this time.” And that is from Ms. Ziotek’s letter dated February 5, 2014. And Ms. Ziotek has interviewed both of the children. This is the third time in the past year that the mother has accused the father of either sexual impropriety or sexual abuse of the children and has denied access between the father and the children. Currently, the children have not seen their father for approximately one month, notwithstanding the court order that I made and the fact that the Children’s Aid Society is not recommending supervised access, nor has the Children’s Aid Society commenced a protection application. Further, previous reports from the Children's Aid Society indicates that they had serious concerns regarding the nature of the mother’s questioning of the children, although the children now have been separately interviewed by Ms. Ziotek in this current investigation. Given the law with respect to the principles applied for contempt motions, which is a quasi criminal remedy, the mother’s motion for contempt is dismissed. The court wishes to hear from the Children's Aid Society. The Office of the Children’s Lawyer, Ms. Peacy, has now indicated that they will not be involved in this matter, despite my direction that they become involved, as a result of the mother’s latest complaint against the father and the fact that the Children's Aid Society is investigating. The order that I am making:

1. Commencing Friday, February 21, 2014, the father’s access is to be reinstated immediately.

2. Police officers of the Halton Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and any other police force having jurisdiction, are hereby directed to enforce my court order of September 30th, 2013.

3. The mother’s motion seeking disclosure of police records and further supervised access scheduled for March 25, 2014 and served last night on the father, is hereby vacated because the mother will need to properly serve the police and, I believe, the Children's Aid Society . She is seeking relief against the Children's Aid Society.

4. The mother’s motion for supervised access and disclosure of police records is adjourned to Thursday, April 24th, 2014 at 10:00 a.m., which is a Children's Aid Society day in this court. Ms. Ziotek and/or counsel for the Children's Aid Society are directed to be present on that day to report to the court regarding its current investigation.

[4] At the hearing before me the parties produced a further letter from the Halton Children’s Aid Society dated March 31, 2014. Before I set out the contents of this letter it is important to note that the parties advised me that a further incident had been reported to the CAS relating to the child Melissa. This alleged incident took place on March 22, 2014.

[5] As a result of the disclosure made by Melissa, the mother met with the police on April 1, 2014 for three hours.

[6] Also, as a result of this disclosure, the father has voluntarily agreed with the CAS that during his access with Melissa and James, and while the CAS and Police investigations continues, he will not have Neve and Torre (Torre is 11 years old) present.

[7] The March 31, 2014 letter from Ms. Ziotek, Child Protection Worker, sets out the following:

Ms. Beatty,

This letter is to advise that the Halton Children’s Aid Society has concluded the child protection matter that was referred to us on December 13, 2013. The Society became involved in response to allegations of lock of supervision of your children, Melissa and James, during access visits with their father. It was further alleged that the father had locked James in a bedroom, and that the father had presented as being unwell in presence of the children.

Based on the information obtained throughout the investigation, the initial allegations were not verified. However, the Society is verifying a concern of risk of emotional harm as it pertains to custody and access conflict. During the course of the investigation, it has become evident that there is significant conflict related to the current custody and access order, and there is concern that this may have a negative impact on the children. Furthermore, it has been brought to the Society’s attention that there have been instances where the children have not been directly supervised during access visits (as directed by the existing court order), which has resulted in additional allegations being made.

On March 28, 2014, the Society initiated an investigation regarding inappropriate sexualized behaviour involving your daughter, Melissa. It was alleged that Melissa was touched inappropriately by a sibling during an access visit with her father. This allegation is currently being investigated, and the father has voluntarily consented to alter his access rights to ensure that the alleged perpetrator is not present during his access with Melissa and James.

If you have any questions or concern regarding this information, please contact me directly at 905-333-4441 ext 0639.

Thank you,

Yolanda Ziotek

Child Protection Worker

[8] Ms. Ziotek states in this letter that the father has voluntarily consented to alter his access to ensure that the alleged perpetrator is not present during his access to Melissa and James. The father has indicated that he will ensure both Neve and Torre are not present.

[9] The mother had served a Notice of Motion on both the CAS and the Halton Regional Police returnable in the Superior Court of Justice and the Ontario Court of Justice for disclosure of relevant information relating to the issue of supervised access which is scheduled to be heard in the Ontario Court of Justice on April 24, 2014 at 10:00 a.m. I indicated to the mother that those motions are to remain in the Ontario Court of Justice as the Superior Court of Justice had no jurisdiction to deal with those issues.

[10] The appellant sets out six grounds of appeal in her Factum:

Issue One Justice O’Connell made numerous errors of fact.

Issue Two Justice O’Connell erred in ordering a Police Enforcement clause.

Issue Three Justice O’Connell erred in relying on oral submissions made by the father. This put the mother at a disadvantage as she had no opportunity to respond.

Issue Four Justice O’Connell did not provide sufficient reasons for dismissing the contempt motion.

Issue Five Justice O’Connell should not have relied on statements made by Ms. Potts.

Issue Six Justice O’Connell was not fair or impartial.

[11] The father filed an Affidavit sworn March 27, 2014 in response to this appeal. He denies all of the allegations being made by the mother. The father submits that the CAS has no difficulty with his access to the children, unsupervised as long as he complies with CAS request not to have Neve and Torre present.

[12] The September 30, 2013 order of Justice O’Connell sets out the following access:

Commencing Saturday October 5, 2013, the Respondent further shall exercise access to the children every Saturday from 1:00 p.m. to Sunday at 1:00 p.m.

The Respondent father shall ensure that the child Neve will not be alone with the children.

[13] I am not satisfied that Justice O’Connell erred in fact or in law in making the order that she did.

[14] The February 20, 2014 proceedings, read in its entirety makes it clear that Justice O’Connell could not determine that a contempt had been proven beyond a reasonable doubt.

[15] The following excerpts of the exchanges that take place between the mother and the court demonstrate the difficulty the motions judge had in accepting the position of the mother:

THE COURT: So, which part – so you’re saying that Mr. Sluski is in contempt of my order because he’s leaving Melissa and James alone with Neve?

Ms. Beatty: And, and inappropriate sexual things are goin on while they’re alone …

THE COURT: … I did review all your materials carefully, and you’ve made a number of reports to the Children’s Aid Society alleging sexual impropriety or sexual abuse and they haven’t – they don’t agree with you.

THE COURT They’ve actually not verified any of these concerns.

THE COURT: But I read the police officer’s notes and the police officer’s notes that you attached to your affidavit seem to be very very concerned about how you were questioning Melissa, in particular.

THE COURT: …if I’m pronouncing it correctly. So you – she sent an e-mail. In her occurrence report she describes the interview and the line of questioning with Melissa. And she states as follows: “Terri Beatty’s line of questioning is extremely leading and suggestive, making the disclosure obtained from Melissa extremely problematic…

THE COURT: …the Children’s Aid Society have investigated and have not verified any protection concerns.

THE COURT: So, what remedy are you seeking today?

MS. BEATTY: I’m asking for supervised visits at a supervised centre that – I want my children to be safe. I don’t want to….

THE COURT: And when was the last time the children have seen their father?

MS. BEATTY: The weekend of February 1st – well, the weekends just after February, I had stopped visits.

THE COURT: You stopped – you – so why wouldn’t you be considered in contempt for not following a court order?

MS. BEATTY: Your Honour, I’m protecting my kids. They’re coming home and they’re telling me….

THE COURT: But the Children’s Aid Society have not verified your concerns. Ms. Ziotek is not here today. She has not provided a report saying we’re recommending supervised access or we’ll commence a protection application. Every single time you’ve reported Mr. Sluski over the past year to the Children’s Aid Society for alleged sexual abuse, the Society hasn’t verified those concerns.

MS. BEATTY: Regardless of what the Society has verified, Your Honour, I had my, my daughter this Sunday – was playing with her Barbies and wanted to know if they wanted to play the sex game. When I asked her what that was, she humped my leg. She’s five. She is coming to me with inappropriate knowledge that is coming from the fact that he is not supervising them adequately and his daughter is touching her. How am I supposed to say that’s okay, you can go to their Dad’s, when I know that that is going on. They come home and they talk about disgusting things.

THE COURT: So, Melissa is five at the – when does Melissa turn six? I’m sorry, I….

MS. BEATTY: She just turned five…

THE COURT: She just turned…

MS. BEATTY: …in December.

THE COURT: …five, yes.

MS. BEATTY: And it’s not just Melissa, Your Honour. James is saying that he’s seen them all playing naked and touching parts; that he sees other gross things happening; that – James has also told the, the Children’s Aid worker that Daddy’s asking him to lie about going out for a smoke, so that he, you know, basically doesn’t get in trouble for actually being in contempt of court. The, the investigation didn’t happen in February. Whatever he told them when they called to ask him about the kissing game negated them from actually interviewing my children. So, there wasn’t an investigation. Nothing was proven unfounded because they didn’t bother talking to the kids. And when the worker….

THE COURT: Well, they did. There’s a…

MS. BEATTY: In February, 2013…

THE COURT: …Ms. – 2013, but this is….

MS. BEATTY: …2013 was the first complaint that I made to Children’s Aid.

THE COURT: So, I’m…

MS. BEATTY: They did not talk to my children.

THE COURT: …I’m, I’m – you’re – yes, you’ve made a number of different complaints. We’re now in 2014…

MS. BEATTY: And now….

THE COURT: …so what has changed, since the number of different complaints that you’ve made over the past year that have – none of which have been verified by the Children’s Aid Society?

MS. BEATTY: I don’t feel that I’m withholding the children from him, Your Honour. I feel that I am doing what’s in their best interest and protecting them.

[16] This matter will be in the Ontario Court of Justice on April 24, 2014. The CAS and the Police have been served with disclosure motions returnable that day. The mother is seeking the following as against the CAS:

1. I am requesting an order for any and all documents related to the Kissing Game which I reported in February 2013. I would like a copy of the initial intake report, any and all of the intake supervisor’s notes as well as any and all notes made by Mary Lynn Kelly in April 2014, pursuant to the conversation I had with her at that time. I would like a written explanation as to why this information which was reported directly by me is NOT within my own file. I would also like a written explanation why James, then aged 7 and Melissa, then aged four, were not interviewed by anyone within your agency with regards to this very serious allegation.

2. I am requesting an order for any and all documents related to the report filed with the Halton Regional Police investigation in September 2013 which was run jointly with CAS. I am requesting any and all of Lisa Potts’ notes, including any and all notes written regarding any interview which she conducted, with all persons she interviewed or witnessed being interviewed. On March 17, 2014 Ms. Potts’ notes relating to myself and my children were to be redacted and provided but was not.

3. I am requesting an order for any and all notes made by Amy Bromwell.

4. I am requesting an order for any and all notes made by Meghan Crissy.

5. I am requesting an order for a letter outlining the dates and details of any report that I have made into Halton’s CAS in the past six years.

6. An order for a letter with dates and details of any reports made against me by David Paul Sluski in the past six years.

7. I am requesting an order for that, in addition to Ms. Ziotek, that Amanda Jamison and Jennifer Cloutier be made available for our court appointed time on April 24, 2014 to address the issues raised by Ms. Potts’ allegations against me regarding leading questions and coaching in relation to James and Melissa.

8. I am requesting an order for the following information be confirmed by CAS, regardless of whose CAS file contains such information, be it mine, Mr. Sluski’s or Sonya Holling’s file:

a) That David Paul Sluski was required to have supervised access with James in 2008 and the reason for it was because he was drunk and high when he was in care and control of children and that children were removed from his care, on the night in question, as a direct result of this occurrence.

b) That Neve Sluski’s bed was moved into our, my ex’s and mine while we were co-habitating, bedroom to prevent her from waking Tori up to kiss her and touch her.

c) That Neve Sluski previously made an allegation regarding being touched sexually by her older male half sibling and her older male cousin.

d) That, with the knowledge of CAS, Sonya Hollings resided with a person who had a restriction against minors and that he son Josh was also residing with her at the time and she was exercising access to Neve and Tori during this period as well.

e) That CAS determined through a Police Screening that a roommate of Mr. Sluski, who had been left in a caregiving role, was identified with having a restriction against minors.

9. An order for any and all notes taken by Yolanda Ziotek of all of her interviews and observations.

10. I am requesting that all the information which I am asking for court orders of to be made available to me directly from CAS as soon as possible, if you like, or are required to, you may also provide a copy of all I’ve requested directly to Mr. Sluski.

11. Since Ms. Bromweel needed to ask Ms. Potts regarding which child confirmed the allegation of verbal conflict and was told that it was Melissa during her Police interview, which was passed along verbally to me on March 17th, I would like an order for this information confirmed in writing along with an explanation of why this information was not already within Ms. Potts’ notes.

12. Since the reasons for Ms. Potts notes claiming that Melissa told the Police that it was only Barbies touching private areas was not contained within her notes, I would like an order requiring a written explanation for this fact.

[17] The mother is seeking the following as against the Halton Regional Police:

13. I am requesting an order for Melissa’s DVD recorded interview dated September 16, 2013.

14. I am requesting and Order for copies of any and all interview notes or other DVD’s conducted by the Police during the course of their investigation.

15. I would like an order for Officer’s Wyers hand written notes made on September 12, 2014.

16. I am requesting that all the information which I am asking for the Court to order to be provided directly to me from Halton Regional Police, if you like, or are required to, you may also provide a copy of all I’ve requested to Mr. Sluski.

[18] In Sferruzzi v. Allan 2013 ONCA 496, E.E. Gillese J.A. stated the following at para. 43:

The Supreme Court of Canada has confirmed the narrow scope of appellate review in all family law matters relating to custody and access: see Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law: Van de Perre, at paras. 11-12.

[19] I am not satisfied that on the evidentiary record before Justice O’Connell that she made any errors as alleged by the mother. The appeal is therefore dismissed.

[20] The CAS and the Police now have another complaint and they are investigating. The mother is seeking significant disclosure and relief in the Ontario Court of Justice on April 24, 2014. At that time the issues can be dealt with as more information becomes available as a result of the continuing investigations being conducted by the CAS and the Halton Regional Police.

Fragomeni, J.

Released: April 8, 2014

COURT FILE NO.: 1096-14
DATE: 20140408

ONTARIO
SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

TERRI FRANCES BEATTY

• and –

DAVID PAUL SLUSKI

REASONS FOR JUDGMENT

Fragomeni J.

Released: April 8, 2014