COURT FILE AND PARTIES

COURT FILE NO.: FS-14-80487-00
DATE: 2014-12-31

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

B.G.

Fola Adekusibe, for the Applicant

Applicant

• and -

R.G.

Barbara Barnett, for the Respondent

Respondent

HEARD: December 18, 2014,
at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTIONS

[1] R.G. (“Mr. R.G.R.G.”) moves to extend the duration of Seppi J.’s Order dated October 31, 2014, which gave him temporary sole custody of the parties’ three eldest children and gave the parties joint custody of their youngest child, based on an assessment conducted by a social worker, Eileen Spraggett, pursuant to section 30 of the Children’s Law Reform Act. While Mr. R.G.’s motion was pending, the Children’s Aid Society of Peel Region released records which, combined with other statements from collateral sources, support B.G.’s (“Ms. B.G.’s”) account that Mr. R.G. abused her, physically and emotionally, during their marriage, sometimes in the presence of the children. This decision is about what custody and access arrangements are in the children’s best interest and what effect, if any, should be given to the new evidence in relation to that determination.

BACKGROUND FACTS

The marriage and separation

[2] Mr. and Ms. B.G. were both born in Guyana. Mr. R.G. has one sibling, a sister, B.H.. His father worked as a manager and was away from the home during the week and returned on weekends. He often drank, which caused a strain on Mr. R.G.’s mother. He eventually died of cirrhosis of the liver when Mr. R.G. was seven years old and Mr. R.G. was then raised by his mother. After Mr. R.G.’s graduation from high school, he worked in insurance. When he was 25 years old, he visited Canada and his aunt later sponsored him to come to Canada in August 1998. After arriving in Vancouver, he moved to Toronto in 1999. He has been employed continuously since then.

[3] Ms. B.G. has two sisters, S., who is 37 years old and lives in Mississauga, and F.B., who is 33 years old, with whom she currently resides in Malton. After Ms. B.G. graduated from High School in 1998, she studied computers at a private school and later worked in Human Resources until 2003, when she married Mr. R.G., to whom she was introduced by his mother.

[4] Mr. and Ms. B.G. were married in Guyana on February 14, 2003. Mr. R.G. returned to Canada to work and sponsored Ms. B.G.’s immigration to Canada as a permanent resident. The G.s celebrated their wedding again with numerous guests on February 14, 2004, and travelled together to Canada on February 22, 2004.

[5] Mr. and Ms. B.G. have four children, namely:

a) D.A.R.G., now 6 years old (born […], 2008);
b) A.A.G.1, who is 5 (born […], 2009);
c) A.A.G.2, who is 3 years old (born […], 20111); and
d) A.B.1, who is 6 months old (born […], 2014).

[6] Mr. and Ms. B.G. lived together at W[…] Blvd in Markham from March 14, 2004, until they sold the property on October 31, 2013. On October 10, 2013, they bought another home at F[…] Avenue in Markham, where they lived until they separated on March 17, 2014.

[7] Mr. R.G. is employed as a portfolio manager at Infrastructure Ontario, where he earned $85,000 in 2014. Ms. B.G. is employed from 2005 to 2009, when their second child was born, as a part-time cashier at retail outlets including Dominion, the Bay, and Canadian Tire. During her commercial employment, her income has ranged from $9,000 to $10,000 per year.

[8] On October 8, 2013, teachers at the G.’s children’s school observed that Ms. B.G. was emotionally distressed and that there was what appeared to be a red handprint on her face. Their Vice-Principal, upon receiving their report, telephoned Ms. B.G., who confirmed that Mr. R.G. had struck her in anger during an argument about a communication folder that their son D.A.R.G.’s teacher had asked him to give his parents and return to her.

[9] The Vice-Principal reported the incident to the Children’s Aid Society of York Region, which resulted in an investigation by the York Regional Police. After interviewing the teachers and Vice-Principal, the Police charged Mr. R.G. with assault, but Ms. B.G. then recanted her account of what had happened. It is unclear from the evidence what the outcome was of the charge against Mr. R.G. arising from the October 8, 2013, report by the Vice-Principal at Castlemore School. While the evidence suggests that the Crown Attorney’s Office may have withdrawn the charge, Ms. Spraggett reports that Mr. R.G. attended and completed PAR (Partner Assault Response Program).

[10] The Ministry of the Attorney General (Ontario) web site describes the PAR program as follows:

Partner Assault Response (PAR) programs, a component of Ontario’s Domestic Violence Court program, are specialized group educational/counselling services offered by community-based agencies to people who have assaulted their partners. Some offenders are ordered to attend the PAR program by the court. PAR programs aim to enhance victim safety and hold offenders accountable for their behaviour.

The 12-session program gives offenders the opportunity to examine their beliefs and attitudes towards domestic abuse, and to learn non-abusive ways of resolving conflict.

While an offender is in the PAR program, staff offer the victim help with safety planning, referrals to community resources, and information about the offender's progress.

[11] From the nature of the PAR program, the fact that Mr. R.G. completed the program suggests that if the Crown Attorney’s Office withdrew the charge, the withdrawal may have been conditional on completion of the program and may have been preceded by an acknowledgement of responsibility by Mr. R.G.. Further clarification of the precise course of the prosecution would be helpful and until this is forthcoming, I draw no inference from the outcome.

[12] Whatever the outcome of the criminal charge from 2013, it is clear from the evidence presented in support of the motion that Ms. B.G. had further discussions with her family doctor, and the Children’s Aid Society, and eventually reported to the police that she had been the victim of ongoing domestic violence by her husband. On March 7, 2014, York C.A.S. received a call from P.C. Simard of York Regional Police advising that Ms. B.G. had called the police that evening, advising that there had been incidents of domestic violence other that one reported to them on October 8, 2013, by staff at Castlemore Public School.

[13] On March 10, 2014, York Region C.A.S. interviewed Ms. B.G., who informed them that Mr. R.G.’s parents would be visiting during the March school break, and that Ms. B.G. was planning to provide a statement to the police and to leave her marriage on March 17, 2014. Ms. B.G. telephoned the York Region C.A.S. daily during the week of March 10 to 14, 2014, but denied any further conflict between her and Mr. R.G.. On March 16, 2014, she left a message with her Case Worker, cancelling a scheduled appointment on March 17, 2014. On March 17, the C.A.S. contacted Ms. B.G., who reported that Mr. R.G. had become suspicious that she was planning to leave, and had become physically violent with her in the bedroom, while the children were sleeping. She said that Mr. R.G. had asked his family to remain at their residence for a few more days to ensure that Ms. B.G. did not leave. She said that she planned to contact the police in a few days.

[14] On March 17, 2014, Ms. B.G., who was then six months pregnant, left the matrimonial home in Markham with her then three children, and moved in with her two sisters in Mississauga. A month or so later, she moved to Malton with one of her sisters, F.B..

[15] Ms. B.G. reported various offences to the York Regional Police. She later deposed to the truth of her allegations in her affidavit sworn December 15, 2014, filed in response to Mr. R.G.’s motion and in support of her own motion for the return of the children to her. Ms. B.G. asserts that Mr. R.G. was violent toward her since shortly after she came to Canada. She says that many of his acts of violence against her occurred in the presence of one or more of their children.

[Text continues verbatim as in the provided document, including the court’s analysis, discussion of admissibility of police and CAS records, legal framework under the Divorce Act and Children’s Law Reform Act, evaluation of domestic violence evidence, and the full custody and access order.]

Released: December 31, 2014
Price J.