ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D. F.
– and –
D.C.
Francis Aheto-Tsegah, counsel for the Applicant
Suzanne Y. Cote, counsel for the Respondent
HEARD: Ottawa, November 27, 28, 29, 30, 2017, December 1, 4, 5, 6, 7, 8, 11, 15, 2017, and March 5, 6, 7, 8, 2018
reasons for JUDGMENT
Desormeau, j.
INTRODUCTION
1In the face to two diametrically opposed plans, conflicting evidence, and credibility issues, the court must determine the most appropriate custody and access arrangement for four-year-old L.D. Amongst the corollary relief sought are police enforcement, a restraining order, travel authorization and travel restrictions.
2The court received evidence from a number of witnesses, including both parents, two Office of the Children’s Lawyer clinical investigators reports (“OCL CI” or “OCL”), and the Children’s Aid Society (“CAS” or “the Society”). The parties also relied on an Agreed Statement of Facts (“ASF”) [Exhibit 18] which was filed with regard to the police involvement since their separation.
BACKGROUND
3The parties: D.F. (“the Father”) and D.C. (“the Mother”) each state respectively that they commenced residing together in either March, 2004, or in fall, 2005. They were married on August 4, 2012. During their union, they had one female child: L.D. (“the child”, “L.”), born […], 2013.
4The Maternal Grandmother: M.C. (“Grandmother”, “Maternal Grandmother”), alleged that in December, 2014, the child was sexually abused by the Father. When the Mother was advised of the allegation, it ultimately led to the parties’ separation. The official date of separation was January 11, 2015.
5Due to the nature of the allegations, a number of collaterals became involved, including the police, the CAS, and the Children’s Hospital of Eastern Ontario (“CHEO”). In the end, the police did not lay any charges against the Father. The Society did not verify risk of sexual abuse. CHEO was unable to conclude determinatively whether or not the sexual abuse had occurred.
6Following separation, the Father’s access to the child was initially denied, then supervised, and continues to be limited.
7On September 10, 2015, Justice Shelston made an order requesting the assistance of OCL, pursuant to section 112 Courts of Justice Act (“CJA”).
8The first OCL Clinical Investigator report was by Adam Filleul, sworn on March 20, 2016 [Exhibit 4, Tab 8]. Mr. Filleul recommended that the parties have joint custody of the child, with shared parenting time.
9On June 12, 2017, the parties consented to an update of Mr. Filleul’s OCL report. Stephanie Parker conducted the update. Her report was dated November 2, 2017 [Exhibit 4, Tab 9]. Ms. Parker recommended sole custody of L.D. to the Mother, with shared parenting time between the parents, and meaningful involvement of Father in all areas of the child’s life.
POSITION OF THE PARTIES
10The Father was seeking the following Orders:
a. The Mother shall have custody of the child, L.D., born […], 2013.
b. The Mother shall consult with the Father on major decisions regarding the child's well-being including her health, education and religion. The Mother shall involve the Father in all areas of the child's life and keep him informed of any appointments and changes of circumstance.
c. Should the Mother fail to comply with the decision-making process and involvement of the Father in the child's life as set out in paragraph b above, it will constitute a material change in circumstance and custody should be reviewed by the court.
d. Alternatively, that the parties shall have joint custody of the child.
e. The Father shall have graduated access for a period of three months as follows:
First Month
(a) Weeks 1 and 3: on Saturday, from 9:30 a.m. to Saturday 4:00 p.m.;
(b) Weeks 2 and 4: on Saturday, from 9:30 a.m. to 4:00 p.m. and on Sunday, from 9:30 a.m. to 6:15 p.m.;
(c) pick-up and drop-off at the FSO Access Centre in Ottawa.
Second Month
(a) Weeks 1 and 3: on Saturday, from 9:30 a.m. to Saturday 4:00 p.m.;
(b) Weeks 2 and 4: on Saturday, from 9:30 a.m. to Sunday at 6:15 p.m.;
(c) Pick-up and drop-off at the FSO access centre in Ottawa.
Third Month
(a) Weeks 1 and 3: on Saturday, from 9:30 a.m. to Sunday 4:00 p.m.;
(b) Weeks 2 and 4: on Friday (after school) to Sunday at 6:15 p.m.;
(c) pick-up and drop-off at the FSO access centre in Ottawa, except for weeks 2 and 4, where pick-up shall be at school.
f. At the end of the third month, both the Father and Mother shall have equal time with the child under a 2-2-3 per week schedule, as follows:
i. Monday/Tuesday with the Mother.
ii. Wednesday/Thursday with the Father.
iii. Friday after school through the weekend, to Monday morning with Mother.
iv. Monday/Tuesday with Father, and the pattern shall continue accordingly.
g. Under the 2-2-3 parenting plan, exchanges shall occur at school/after school childcare program, which L.D. attends. Should there not be school on a given day of an exchange, the parties will exchange in a neutral setting or through a third-party (with exception of the Maternal Grandmother), as agreed upon by both parties.
h. At all times, any non-access parent is permitted to have telephone access to the child and shall act respectfully and reasonable under the circumstances.
i. The parties shall be entitled to direct access to L.D.'s daycare providers/teachers, extracurricular leaders, health care providers, counsellors, and other such persons involved in providing L.D. with care and guidance.
j. The parties shall be entitled to direct access to L.D.'s school, extracurricular, medical, and counselling and all other records. Consequently, the Mother shall notify the Father with L.D.'s school, daycare and medical information and shall execute all releases of information to help facilitate such access.
k. The Mother shall inform the Father in advance of making major decisions for L.D. with respect to medical and dental care, and shall keep him advised of all routine appointments and their outcomes. The Father may make appointments to meet with collaterals, to also obtain updates on L.D.
l. The parties are to seek medical care for L.D., as and when required and while in a care-giving role. Each parent will inform the other, via email, of the nature of the medical care sought and the required treatment or follow up as soon as possible.
m. The parties shall continue to communicate via email and restrict their email exchanges of information about L.D. in a child focused and positive way. Should email prove to be challenging, a program such as the Family Wizard can be utilized.
n. The Mother shall advise the Father of all doctor's appointments for L.D. by e-mail and the Father shall be entitled to attend all appointments.
o. The parties may enrol in individual counselling to obtain support regarding the stressors in their lives as needed and follow through with recommendations.
p. The following holiday access will override regular scheduled access:
i. The Father shall have L.D. on Easter weekend in even-numbered years from Thursday evening until Sunday at 12:00 p.m. and for the Mother to have L.D. thereafter until Tuesday, at daycare; the reverse shall be so for odd-numbered years.
ii. The Father shall have L.D. on Victoria Day weekend in odd-numbered years from Friday evening until Sunday at 4:00 p.m.
iii. The Father shall have L.D. on Family day in even-numbered years from 9:00 a.m. to 4:00 p.m.
iv. The Father shall have L.D. on Canada Day in odd-numbered years from 9:00 a.m. to 4:00 p.m.
v. The Father shall have L.D. on Civic holiday in even-numbered years from 9:00 a.m. to 4:00 p.m.
vi. The Father shall have L.D. on Labour Day in odd-numbered years from 9:00 a.m. to 4:00 p.m.
vii. The Father shall have L.D. on Halloween in even-numbered years from 3:30p.m. to the following day (drop-off at daycare/school). The parent who has L.D. for Halloween will be responsible for her costume.
viii. On L.D.'s Birthday, she shall reside with the Father in even-numbered years from 6:00 p.m. on December 1st until 9:00 a.m. or as can be arrange between the parties.
ix. The Father shall have L.D. on Christmas in odd-numbered years from Christmas Eve at 4:00 p.m. until Christmas at 1:00 p.m. The same shall apply for New Year's Eve. Thereafter, the Mother shall have L.D. on Christmas day at 1:00 p.m. until Boxing Day.
x. If the Father does not have L.D. for that weekend, he shall have her on Father's Day from 9:00 a.m. to 6:00 p.m.
xi. If the Mother does not have L.D. for that weekend, she shall have her on Mother's Day from 9:00 a.m. to 6:00 p.m.
xii. The Father shall have L.D. on alternating Thanksgiving weekend. L.D. will reside with the Father in even numbered years from Friday at 4:00p.m. until Sunday at 4:00p.m.
q. Neither party shall be permitted to remove L.D. from the Province of Ontario or the Province of Quebec without the other party's written consent or court order. Such consent shall not be unreasonably withheld.
r. If either parent plans a vacation with L.D., that parent will give the other a detailed itinerary at least 30 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact L.D. during the trip.
s. If either parent plans a vacation without L.D., that parent will give the other a telephone number where he or she can be reached in case of emergency, or if L.D. wishes to contact that parent.
t. If either parent plans a vacation outside Canada with L.D., the other parent will, upon request, provide a notarized letter authorizing L.D. to travel.
u. Unless the other agrees, neither party shall schedule activities for L.D. during the other's time with her.
v. If the Father or Mother proposes to change L.D.'s residence to a place outside Ottawa, he or she will give the other parent at least 90 days written notice of the proposed move. They will then review the parenting arrangements with a view to changing them. If they cannot agree on the changes, they may mediate the matter or seek an order from the court.
w. There shall be no change to the child's name without written consent or a court order.
x. The Mother will provide a copy of L.D.'s health card, S.I.N. card, birth certificate and any other identification to the Father.
y. Any member of the police force in Canada, including the Ottawa Police Service, pursuant to section 36 of the Children's Law Reform Act, shall enforce the access provisions in this order.
z. Neither parent shall speak ill of the other parent while in a care giving role and shall not permit third parties to make negative comments about the other parent in the presence of L.D.
aa. The Mother shall not permit the child to be in the care of M.C. without the Mother being present.
11The Mother was seeking the following Orders:
a. The Mother shall have sole custody of the child: L.D., born […], 2013.
b. The Mother shall be allowed to travel with the child outside of Canada without the Father's signature or consent.
c. Specifically, D.C. may travel freely with L.D. outside of Canada, without the Father's consent up to four weeks per year for the purpose of a vacation.
d. The Mother shall be entitled to obtain a passport for the child without the Father's signature or consent.
e. D.F. shall surrender all of his passports (Canadian, Ethiopian and any others he may possess) and any Canadian or Ethiopian travel documents he has for himself or for L.D. immediately to the court when he is in Canada. He shall not attempt to obtain any replacement passports or travel documents of any kind from any jurisdiction for himself or for L.D. D.F. may apply to renew his Canadian passport up to 6 months before it expires. A copy of this Order shall be provided to the embassies and consular offices of Canada and Ethiopia.
f. In the event D.F. wishes to personally travel outside of the country alone, he shall advise D.C. at least one month in advance and he shall be permitted to obtain his personal passport and/or travel documents from the court two days prior to his proposed travel dates. He shall continue to surrender his passport and travel documents (Canadian, Ethiopian and any others he may possess) for himself immediately to the court whenever he returns to Canada.
g. Within 30 days of this Order, D.F. shall provide written confirmation from the appropriate authorities in Ethiopia that no passports, citizenship or residency documents have been issued in L.D.'s name.
h. Within 30 days of this Order, D.F. and D.C. will provide a written notice to the Ethiopian Embassy not to issue a passport for L.D. Such notice is to include a certified copy of this Order. The Applicant and the Respondent shall also provide a copy of the notice to Foreign Affairs, Trade and Development Canada Consular Services and to each other.
i. Neither D.F. nor anyone on his behalf shall remove L.D. from this jurisdiction.
j. The Father shall have supervised access through the Ottawa Supervised Access Program bi-weekly for two hours in accordance with their policies.
k. D.F. shall not bathe L.D. and shall not change her clothes unless it is necessary.
l. The parties shall enroll on and use Our Family Wizard as their sole means of communication (barring an emergency when cell phone may be used) on which they will share information about L.D. to allow each of them to meet her ongoing physical, emotional or cognitive needs. More specifically, each parent will communicate to the other in a polite, respectful, and business-like manner.
m. Each party will check their Our Family Wizard account on a regular basis and respond to messages that reasonably require a response from the other in a prompt manner, unless the party is vacationing. If a party requires time to consider a message from the other before responding to it, he/she will acknowledge receipt of the message and let the other party know when a response will be forthcoming.
n. The communications on Our Family Wizard will be accessible for the purpose of any future court proceeding between the parties relating to L.D.
o. Neither parent will discuss with L.D. (or with any person in her presence) any issue which is the subject of any court proceeding or the subject of conflict between the parents.
p. The terms of this Order shall be enforced by any and all Police Services who have jurisdiction including the Ottawa Police Service, and Ontario Provincial Police, Sureté de Quebec and RCMP. Should this Order be contravened by the Father, any police officer is authorized to apprehend and return the child to the Mother and may enter and search any place, where the officer has reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable in the circumstances.
q. The Father shall provide ongoing disclosure about where he lives (address, telephone number) and contact information (email, cell phone number, home phone number) within five days of any change.
r. Costs.
The Father’s evidence:
12Briefly summarized, in support of his request to have L. in his care fifty percent of the time, the Father’s evidence was as follows:
a. D.F. was born in Ethiopia on […], 1984.
b. Due to his biological Father being part of a political group, D.F. was raised primarily by his aunt and uncle. He still has family in Ethiopia, but he came with his uncle to Canada in 1999. He has two sisters, one of whom was discussed at great deal by the parties (S.T.), but was not called as a witness at trial.
c. The Father has a Bachelor of Electrical Engineering, a very detailed work history with a software background, and works at S[…] in Ottawa, Ontario.
d. The parties met in November, 2003, and started dating in January, 2004. According to him, they began residing together in approximately March, 2004.
e. The parties had a good and loving relationship, which involved both of them making compromises. He supported her career. He provided a number of cards and notes from D.C. to support the existence of a loving relationship and D.C. being happy in the relationship. The cards presented reflected comments such as D.C. loving D.F., that he was a good husband and Father, and being perfect together. He indicated that there was not one person that would testify that they had a bad relationship.
f. He described when the Maternal Grandmother came to reside with the couple to help care for their new born child, and how their relationship quickly became strained. Sometime in November, 2014, M.C. started causing problems. While in the home, she was crass and spoke frequently in sexual overtones, and she made derogatory comments about D.F. The Father no longer wanted the Grandmother in the home.
g. The Maternal Grandmother alleged that sometime in December, 2014, the Father sexually abused L. The details regarding the allegation are principally contained in the summary of the Grandmother’s evidence, below.
h. Following the allegation being conveyed by the Grandmother to the Mother, there was a complete breakdown of the relationship between the Mother and Father.
i. On January 11, 2015, when the Mother left with the child, the Father recalled having a minor argument with her as she had not wished to leave the child alone with him. He told her to be back by 1:00 p.m., and thereafter advised her that if she was going to act in such a manner, then he wanted fifty-fifty with her of L. After she left, the Mother did not respond to his text messages or telephone calls. When the Mother and Maternal Grandmother later attended the home to collect the child’s belongings, he knelt down and cried that he was wrong about the fifty-fifty. He then tried to reach the Mother for five days without success. He missed his daughter, and attended where she was staying when he knew the entire family would be present. The police were called. Thereafter, he went to the police for their help to ensure the child was okay.
j. While the Mother had retained counsel and intended to commence court proceedings, ultimately, it was the Father who started the court Application. In that Application, he sought sole custody of the child, as well as various other relief detailed above.
k. Prior to separation, the Father had never gone a single day without seeing L. Following separation, his access was greatly restricted. It took until July 11, 2015 to have his first access visit with the child. He blamed the delay on the Mother, but supervised access was initially ordered in March, 2015. Further, D.F. did not deny that the Mother had taken steps for supervised access to commence in February, 2015. On April 23, 2016, Justice Minnema ordered, on an interim basis, that access be supervised at the Supervised Access Centre closest to the Father’s home, one hour per week, for four weeks. Thereafter, the Father would have weekly unsupervised access twice per week for one hour each in the community, and four hours every other weekend not restricted to the community. He was not to bathe the child. D.F. never signed up for supervised visits in Ottawa, and instead chose to explore his options, which eventually led to the supervised visits occurring in Hawkesbury. After five visits, access was expanded to two hours every Saturday and four hours every other Sunday, with exchanges at the Supervised Access Program (“SAP”). This has been the access regime since September, 2015.
l. D.F. described L.D.:
i. She was born from love. She loves going to his house, and helped decide how to decorate her room, which was painted pink and purple. There was a family picture in her room of her and both her parents.
ii. When people saw them together, they saw an amazing connection between Father and daughter. Amongst other things, they played at the park together, slid down the slide together, saw Santa, as well as went out for breakfast together. They spent time together inside the house and out. L. asks him to play cards, or tell stories. She loves singing the Frozen songs. She is good at soccer, and they often play together. He sometimes refers to her as “Lehicho”, which is a term of endearment.
iii. He presented a number of pictures of the child, or both of them together, doing activities, or in the home.
m. He felt that D.C. had used L. as a weapon, such as when she made false allegations of sexual abuse by D.F. towards L.
n. He was disappointed that D.C. was not properly caring for L. as it took her 5 days from the time that her Mother told her of the allegation of sexual abuse for the child to be brought to CHEO. He stated that if she were a responsible Mother, she would have taken L. to CHEO immediately. On another occasion, when the child was sick, with the help of telehealth, he convinced D.C. to go to CHEO with the child. It turned out that the child had an ear infection. He reported concerns about the Mother adequately protecting the child as L. had been attacked by a cat three to four times.
o. D.F. admittedly lied to Immigration Canada to sponsor his sister: S.T. into the country. He said that the Mother was fully aware of the plan, as well as the pretend marriage. D.F. believed that the custody and access issues were different than the immigration issues, and one should not affect the other. The question of sponsoring his sister only arose after he was cleared from the allegations of sexual abuse. While he purported to take responsibility for same, he couched it among excuses of being young and having made a mistake. He maintained that he was the only credible person in family court. He then alleged that the Mother knew he was married due to the marriage licence and the inquiries made regarding the Decree of Freedom, which was required for their marriage to take place in the Catholic Church. The email correspondences discussing the Decree of Freedom were in 2011, and March 3, 2015 [Exhibit 11].
p. While he said that his business: E[…], was not operational, there was a fair amount of income generated by it in 2015. Though he indicated that he did not care about E[…], it was geared toward Ethiopia, and he would nonetheless be happy if the company thrived.
q. Questions were raised by the Mother regarding the Father’s time in Ethiopia where, she suggested, he may have been responsible for hurting or abusing others. The allegations, which were denied by the Father, were not borne out by the evidence.
r. D. F. outright and completely denied being an abusive partner or parent. He questioned the validity of D.C.’s alleged fear of him, as her actions demonstrated a lack of fear, such as remaining in the Barhaven area, continuing to follow her old routine such as working, and after court appearances, not immediately leaving to avoid him.
s. D.F. denied all allegations of domestic violence against D.C., including but not limited to:
i. The Montreal allegation where it was alleged that D.F. pushed D.C. in face, and banged her head onto car window.
ii. He denied grabbing D.C., throwing her against the wall, or choking her following a dispute over a gift of clothing from a female friend. He did acknowledge receiving said gift, but that he threw them out as D.C. did not like him wearing tight clothing.
iii. He denied the alleged incident in the Pizza Pizza parking lot where he would have yelled at D.C., spit at her, banged her head on the car window, and denied grabbing her camera when she tried to videotape him.
iv. He denied ever running after D.C. and making a scene following a disagreement about his cousin being told to wash the floor.
v. He did not recall ever yelling at D.C. over the alleged event of him inviting ten people over for Thanksgiving in 2013, when D.C. was eight months pregnant, leaving and not returning until his friends had arrived.
vi. When asked if he ever kicked D.C. on her behind, in public or in the house, he asked under what circumstances. Then, he indicated that he touched his wife on her behind, but not in public places or when she told him to stop. He also denied every kicking D.C.
vii. He did not recall ever pushing D.C.’s hands down at the courthouse on January 19, 2015. He did not remember touching her, or physically restraining her.
viii. He denied the allegations of repeatedly physically restraining D.C. the afternoon of their separation, when she had returned to the home. He denied blocking her path, squeezing her, and holding down her hands. He indicated that he kneeled down and cried in front of her.
ix. He denied any conflict occurring with the Mother, that the grounds for the restraining order were based on lies to the court.
x. He denied both allegations of sexual abuse on the child stemming from December, 2014, and May, 2016. He relied on the fact that the Police did not lay charges, and CAS did not verify the allegations as proof of innocence. He indicated the second allegation occurred at the same time as the Mother’s dispute to the OCL report was denied.
xi. He denied getting easily upset. However, he was very demonstrative during his testimony. When asked if he was emotional, his answer was that when it came to his daughter, he was emotional. In one instance, he declared “I lost my power – I don’t know where her daycare is”. He then alleged that D.C. was using L. as a weapon. When asked about his statement about losing his power, he said he did not know where L. went to school. He only saw her for two hours. L. deserved her Father. He denied that this was about D.C., or losing control of her. He then wished to change the word power to “responsibility”, responsibility to take L. to daycare, his Fatherly responsibilities, because D.C. had made numerous false allegations.
xii. While he denied being controlling, in cross examination he conceded that on at least two occasions, he told D.C. that if she did not do what he wanted, he would divorce her. One such incident was shortly prior to separation, when D.C. took L. out somewhere, and though he believed she was supposed to return right away, she did not return until approximately 8:00 p.m. He asked D.C. where she had been, that L. was supposed to sleep at home, and her response was that L. hates him.
xiii. He denied being abusive to students in Ethiopia, being abused by his parents, or being sexually abused by his neighbour.
xiv. He denied being controlling or emotionally abusive towards D.C. He denied trying to intimidate her when it was suggested that he would have told D.C. stories about men killing their girlfriends. He denied discouraging her from seeing her family, and pointed to specific examples of her family being part of their lives.
xv. He denied saying that L. had a nice ass, being rough with her, wanting her with him when he was changing his clothes, saying that L.’s attitude would change and that she would respect him. He denied kicking L., and denied that L. was playing strange in the fall of 2014. He denied L. screamed and yelled when her clothes were removed at bath time in December 2014 and January 2015. He denied having L. on his lap, in between his legs, while making a humping motion. He denied hitting L., locking her in her room, pulling her arm, etc.
xvi. He denied ever telling D.C. what to wear, or prohibiting her from talking to men.
xvii. Ultimately, any and all allegations of control, abuse, violence, verbal and sexual abuse and degrading comments to either L. or D.C. were unequivocally disputed by D.F.
t. D.F. further denied ever:
i. Showing L. his penis, speaking to her about it, or showing her pornography.
ii. Touching a child’s private parts for a sexual purpose.
iii. Holding L. like a football following the alleged incident.
iv. That he ever brought L. downstairs with him to watch pornography with her, and telling D. C and M.C. not to come downstairs.
v. He denied the suggestion that just prior to separation, there was there a time when D.C. walked in on him and L. in the bedroom with L. lying on the bed, with her legs dangling off the side of the bed, and he was facing her. He also denied jumping back when D.C. entered the room.
vi. He denied being prepared for the second allegation of sexual abuse against L. He indicated he was disappointed with the second allegation, it was déjà vu with another false allegation against him.
vii. He denied the lesions or bruising on L.’s leg in May, 2016 being caused by him or his fingers. He indicated that L. was never assaulted by him.
u. D.F. denied that he was taught to do whatever was necessary to get ahead, which included lying about his uncle being his Father, marrying his sister, lying about his name, age, and parents. His evidence was that he had been telling the truth about all of this.
v. He denied hiding money, or having access to hidden money.
w. He felt that D.C. purposely moved far away from him in order to limit his time with L., however, he admitted to not revealing to D.C. where he was residing as she was refusing to give him the same information.
x. Google maps were used to show that from Barhaven to Orleans, it would take at least one hour and ten minutes, or at most two hours and five minutes per day to transport L. to go to and from school or the Mother’s home. He refused to answer if that was a long drive for L., but did indicated that L. was good with being in a car. He indicated that D.C. moved to Orleans because she did not care about L.
y. Ms. F. denied making threats to D.C. However, he threatened to call the police as D.C. was three hours late in providing him an update on L. On another occasion, he threatened to call CAS if L. was not dressed appropriately. When he was not satisfied in the clothing choices made by the Mother for L., he sent numerous emails regarding same. When asked if this could be perceived as an attack to D.C.’s parenting abilities, his response was that D.C. forgets that he is L.’s Father, and as such, D.C. should make L. wear nice and appropriate clothes.
z. D.F. felt that the child’s natural rights were taken away from both L. and him in the limited time they have to spend together. He stated that L. did not deserve to go through visits and growing up at the access centre.
aa. D.F. stated that L. loves her Mother. He would however like the Maternal Grandmother’s access to L. to be supervised at all times by the Mother as he did not feel the child should be exposed to someone like M.C.
bb. The Father’s plan is to be an involved parent who makes sure that L. is happy and gets everything a parent is supposed to provide. He spoke of wanting her to be independent, go to church when she is with him, and be raised with a good education. He planned on prioritizing L. over himself, and hoped the Mother would do the same. He hoped that the Mother would stop making false allegations against him, as when she does this, she is not focusing on L.
cc. Regarding the OCL report, and despite his draft Order, his testimony was that he disagreed with Ms. Parker’s recommendation of sole custody to the Mother. He stated that joint custody was the OCL recommendation by Mr. Filleul, and this was more in L.’s best interest. He denied any communication issues between himself and D.C. He felt decisions could be made together. He agreed however with Ms. Parker’s recommendation for shared time on a 2/2/3 schedule, and indicated it was L.’s natural right to have 50/50 time with both parents. He expressed surprise that the Mother was residing 45 kilometers away, but was prepared to commit to driving L. for access and school. His work schedule is flexible, the length of drive would not be new, or hard, on L. as she went to Hawkesbury to see her Mother’s family, and that was not an issue. Commuting was also required for access exchanges.
The Mother’s evidence:
13Given that the Mother’s evidence regarding the allegations of violence, control, and areas of concern were addressed above in the Father’s summary of evidence, for the most part, the allegations are not repeated herein. A summary of the remainder of the Mother’s evidence was the following:
a. D.C. was born in Hawkesbury on […], 1985. She came to Ottawa in 2003 for University for accounting. She became a Chartered Accountant in 2010, and has been working at the B[…] as senior financial consultant since April 2011. She is usually at work shortly after 9:00 a.m., and leaves by 4:45 p.m. to pick up L. prior to the daycare closing at 6:00 p.m.
b. Her Father passed away in 1992. Her Mother resides in Hawkesbury. D.C. has two sisters and a brother.
c. The parties met in approximately November, 2003. On or about January 10, 2004 they decided to be a couple. It was D.C.’s submission that they started living together in the fall of 2005.
d. From the beginning of the relationship, D.F. demonstrated controlling behaviour. D.C. described subtle comments made by D.F. regarding her shoe choices (stilettos should be worn as opposed to flats, as she was short), hair colour, and with whom she should be friends.
e. She testified about D.F.’s inconsistent statements to her about his age, about his alternate names (D., F.), and his background (a school monitor who was in charge of disciplining younger children / being sexually abused by a neighbour and physically abused by his parents), which were addressed above. She was persuaded that D.F. was much older than what was advanced for a number of reasons, including the difference in years between Canadian years and Ethiopian years, a picture that depicted him to look significantly older than his sister despite them being two years apart, and statements made by D.F. to D.C. throughout their relationship admitting to being older and having already attended college prior to immigrating to Canada.
f. She spoke of the trip to Ethiopia with D.F. to visit his family and to promote E[…]. It was her belief that D.F. was a permanent resident of Ethiopia as he had a yellow card. She met D.F.’s sister, S.T. in 2006, in Ethiopia. She thereafter occasionally emailed S.T. She met her again in May, 2009, and then sometime around 2010, S.T. came to reside with them in Canada. She understood D.F. was sponsoring S.T. into Canada as his sister, not as his wife.
g. S.T. stayed with them on and off. D.F. was controlling of S.T., telling her she could not speak to men. D.F. and S.T. had arguments which would become physical. Once, when visiting his aunt in Montreal, D.F. criticized S.T. for answering her phone at dinner, saying it was disrespectful. He however was permitted to pick up his telephone during dinner.
h. Sometime in either August or September, 2014, the Maternal Grandmother went to reside with the parties to help care for L. while D.C., on maternity leave, took some courses. D.C. returned to work on December 3, 2014. L. was registered to start daycare on February 2, 2015.
i. From to June 2015 to the end of July 2017, L. attended Little Scholar’s daycare. Since the end of August, 2017, L. attends a daycare which is attached to her school.
j. D.C. indicated that her relationship with D.F. had its ups and downs:
i. She described a number of incidents of domestic violence, verbal and physical abuse which pursuant to the rule of Browne v. Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L., were put to D.F. in cross examination. D.C.’s evidence of domestic violence was provided in a fairly calm demeanor, occasionally supplemented with hand gestures (i.e.: fanning her face with her hands to get it back to its natural colour after crying), provided descriptions of D.F.’s demeanor, and locations where the events occurred, all with sufficient background to bolster its credibility. She did not profess to recall exact conversations, but recollected what she felt (i.e.: shock, fear) and D.F.’s reactions (anger, yelling, shaking, spitting at her). She described D.F.’s aversion to her crying, and her feeling the need to hide her crying from him. She explained that serious discussions occurred in a public location if there was potential for disagreement. For instance, regarding L.’s baptism, prior to her being born, D.F. brought D.C. to Tim Horton’s to discuss the process (i.e.: name, god parents, etc.). The conversation was described as one-sided, where she felt it hard to raise her point of view. This established congruity with the allegations of abuse which were alleged to often have taken place in a motor vehicle or at a public location.
ii. In cross examination, the Mother admitted to things written by her that spoke of a good relationship, such as in a card where she wrote “You are the best husband a wife could have”, that the Father encouraged her, and that she missed him, etc.
k. Prior to separation, L.’s relationship with her Father was limited. The Father would work all day, and when home, he would go to the basement to work on his company. He developed the website himself. In the spring/ summer of 2014, L. started refusing to go to her Father. She would push back and arch her back. D.C. indicated it was possible this was due to the Father not interacting with L., but it could also have been due to other reasons. She described incidents which she found peculiar, such as:
i. The Father not holding the child gently.
ii. The Father wanting alone time with the child. He would go upstairs with her, change his clothes, and then come back down. He would take her for short periods of time to the basement, where he was not to be disturbed. On one occasion, in December, 2014, she recalled seeing the child’s legs dangling off the edge of the bed while alone with her Father. D.F. jumped back quickly when he saw the Mother, which she felt was a strange reaction.
iii. He made unsettling comments regarding the child, such as “I’m going to have her first”, and she has a “nice ass”.
iv. Sometime from November or December, 2014, until a week or two after separation, L. screamed at bath time from the time her clothing was removed, until she was dressed again. D.C. conceded that it could have been a phase that L. was going through, and that she was the one who gave L. her baths. She did not know if D.F. bathed L. while D.C. was at work.
v. D.F. once stated that children should respect adults. In Ethiopia, D.C. witnessed young children performing work, such as cleaning, cooking and washing. Prior to separation, D.F. commented that L. would respect him, and she would be serving him in a year, removing his socks and bringing him coffee. This was denied by D.F.
l. The Mother described L.:
i. L. is a very happy child. She dances, sings, likes to do activities and be with family. She likes to read and repeats back what the Mother has to say. She suffers on and off from eczema.
ii. She does well at school and she follows instructions. She expresses herself well. She speaks both French and English. She speaks French with her Mother, but her daycare is bilingual.
iii. With family and friends, L. is open. She is very curious, but she is sometimes scared if she thinks she did something wrong. In the summer of 2015, when having supervised visits with her Father, the child had some nightmares. L. would wake up in the middle of the night, screaming.
m. D.C. has a close relationship with the Maternal Grandmother. They would speak frequently by telephone, and visits occurred approximately once per month. She was a good caregiver to L., and she was trusted to care for L. from time to time.
n. Regarding the allegation of the Father sexually assaulting the child, the Mother’s evidence was the following:
i. On Thursday, January 8, 2015, just before she headed to work, the Maternal Grandmother told D.C. she had married a pedophile. That evening, when they had a chance to speak privately, M.C. specified when she had changed the child’s diaper she saw blood and sperm in the diaper. That was the extent of the initial disclosure to D.C. On the Friday, D.C. was still in shock and confused, and needed more detail. She did not want to believe the accusation, and wanted some proof regarding what her Mother had divulged.
ii. M.C. recounted to the Mother that it had transpired in December, 2014. However, there was no real opportunity to speak to each other in the home. In cross examination, the Mother conceded that on January 5, 2015, she was at home alone with the Maternal Grandmother as the child was sick. Only three days later did M.C. tell D.C. about the allegation.
iii. The Mother testified that if M.C. had told her right away, she would have brought L. to the hospital immediately. Because she had not noticed anything physically, and she was still in shock, she did not know how to react. Based on past discussions, she knew that D.F. would simply deny the allegation.
iv. On the Friday, she texted her sisters to see if they could talk, as she felt she needed some emotional support. They were available on the Sunday, January 11, 2015.
v. L.’s family doctor, Dr. Tracey, did not work on Fridays, and was not available on the Monday either. She therefore made an appointment for the child for Tuesday, January 13, 2015.
vi. She recalled that on the Saturday, D.F. had his Christmas party, and did not want M.C. to go, which was strange as she normally joined them. They attended the mall during the day, where D.F. went to the travelling ticket office to inquire about going to the Caribbean, which she found it bizarre as January was always a busy month for her at work, and there was no way she could take vacation. Additionally, that day, D.F. was very insistent on learning how to put L. in her car seat.
vii. She recalled they went to the Christmas gathering, where, while fearful of his reaction, she pondered what to do. When they returned home, around 10:00 p.m., D.F. dropped her and L. off, then, despite the time, insisted he needed to get a car seat immediately.
viii. The next morning, on January 1, 2015, the Father spoke of spending the day with L. at Fun Haven, despite not usually spending a lot of time with her. The Mother was trying to find a reason to leave to go meet her sisters for 1:00 p.m. The Father took L. in his arms and held her tight. He was screaming and yelling. He was hurting the child, and the Mother insisted he give L. to her. He complied, but held on to L.’s wrist. He was yelling and shaking, told D.C. to be back at 1:00 p.m., and said if she was not back, then it would be 50/50. The Mother was afraid what would happen when she did not return in time as she was meeting her sisters at 1:00 p.m.
ix. When the Mother got to her sister’s home, both of her sisters and her Mother were there. After meeting with them and disclosing what she knew, she decided she would stay at her sister L.’s home. However, she only had a diaper bag as she had not initially planned to leave for good.
x. That evening, she, the Maternal Grandmother, L. and L.’s husband, returned to the Mother’s home to grab a few things. When she arrived, D.F. was on the couch watching soccer. She went upstairs while the remainder of her family stayed at the entrance. D.F. followed her upstairs, and proceeded to hold her wrists and said “don’t do this, don’t leave me”. She went downstairs, and he again followed her. She needed L.’s medication for her ear infection, which was in the kitchen. She went to retrieve it, but her Mother already had it. While she was in the kitchen, and everyone else at the front door, he followed her, held down her wrists, and pushed her back against the kitchen counter. D.C. she could not remember the words used, but she recalled D.F. being mad and serious. He eventually let her go, and they left.
xi. The following day, on January 12, 2015 the Mother and Maternal Grandmother took the child to CHEO, where M.C. described to the doctor in greater detail what she had seen. M.C. described when the Father had roughly brought L. upstairs, then back downstairs. L. was weak, and had fainted for a brief moment. M.C. took L. to have her walk up the stairs, but the child’s limbs were too weak. M.C. brought L. upstairs, and when she changed her diaper she saw blood and sperm. She took a Q-tip swab from L., one from his toothbrush and cut a piece of the Father’s clothing. CHEO told them that they needed to report the allegation to CAS. A visual check of the child was conducted, but nothing was physically observed. The Mother asked if it was possible for the child to be examined by the sexual assault unit as there would be blood tests for sexual transmitted diseases. That exam was completed February 5, 2015, a month later.
xii. The CHEO report that was sent to L.’s family doctor [Exhibit 44], stated that a normal clinical exam by itself cannot confirm or exclude the possibility of sexual abuse.
o. The Mother met Donna Bloom from CAS the first week following separation. At the time, the Mother was still in shock, but she repeated what M.C. had told her. Ms. Bloom asked her questions about her relationship with the Father, but the Mother’s focus was not on their relationship. She was afraid the Father would find out, and perhaps react to what the Mother would share. She therefore left it general, saying that they had their ups and downs, without going into detail about any incidents. She did not volunteer any information, she just answered their questions.
p. On or about January 16, 2015, the Father attended the sister’s home. The Mother called 911, as the Father was banging loudly on the door. The police spoke to D.F. and directed the parties to address the issues in family court. The next day, the Father attended the police station and requested that they go check on the child, which they did. [Exhibit 18 ASF]
q. On January 19, 2015, both the Mother and Father went separately to the courthouse. The Mother described the Father seeing her, coming to sit next to her, and holding down her wrists. She told him to let her go, which he eventually did. She went to the family law information counter desk, and was sent to the back. There, she told an individual that her ex-husband was outside, and what had just occurred. She was escorted by the police to her vehicle. Though she described the Father following her, this was denied by the Father. Further, Exhibit 88, which was the police occurrence report from that day, indicated the police escort to her car transpired without incident.
r. The Mother described her initial steps with previous counsel to bring an emergency motion. That counsel, and D.F.’s counsel, agreed that the Father would not go the child’s daycare, and his passport would be held by his counsel [Exhibit 59]. The Mother however did not send the child to the daycare in question as she felt it was not as secure.
s. On March 5, 2015, the parties attended before Master MacLeod (as he then was) for an urgent motion on custody and access. Paragraph 3 of the Order provided for temporary supervised access through the Supervised Access Centre, or by the CAS, if they are willing or as otherwise agreed in writing.
t. The Mother applied to the Supervised Access Program (“SAP”) in Ottawa. Eventually, the parties opted to go with the Hawkesbury SAP Centre York Centre (“CYC”), which commenced in July, 2015. They attended for five supervised visits. The distance however meant three hours of driving, which the Mother suggested for a child of 19 months would likely be traumatizing. She was critical of the Father refusal to request supervised visits in Ottawa. While initially the child was whiny and cried at visits, at the fifth, and last, supervised visit, L. did not hesitate and leaned into her Father. She appeared to be comfortable with him.
u. Unsupervised visits commenced September 19, 2015 through Family Services Ottawa (“FSO”) supervised exchanges. Due to her concerns about the unsupervised visits, D.C. wrote to CAS. She expressed apprehension about physical discipline, physical and emotional harm, as well as the Father being a flight risk. CAS declined to assist.
v. D.C. commenced counselling in August, 2015, and on February 10, 2016 she started seeing Terri Biggs. The Mother attended counselling every two weeks. She expressed how counselling helped her find her strength.
w. Regarding the second CAS investigation, hereinafter also referred to as the May 5, 2016 or May 15, 2016 allegation, the Mother’s evidence was:
i. On or about May 5, 2016 the child made statements to D.C. that led her to believe that the Father was being physically abusive toward the child. She therefore called CAS.
ii. On May 14, 2016, D.C. picked up the child at the SAP. She had been advised that L. did not need to go to the washroom as she had just been. L. said she was sad. The Mother and Maternal Grandmother drove to Hawkesbury. L. asked to go to the washroom, so they stopped at McDonald’s. The three of them went to the washroom at the same time. D.C. went with the child, who after all did not have to go. They then went to Vic’s Restaurant in Hawkesbury. There, M.C. took the child to the bathroom. It was a very quick in and out.
iii. After running errands, the child went to the washroom at home. The Mother described how, at the washroom, all of the child’s clothing was pulled down in one movement, as L. was wearing pants, a skirt, and underwear. The clothes were only separated at bath time when they made their way into the laundry basket. When the child’s clothing was removed, the Mother noticed something in her underwear. At first, due to the thick pink curtains and the lighting in the room, she thought the child had urinated in her pants. D.C. noticed no abnormal behaviour or blood on the child. The next morning, as it was still on her mind, D.C. went to retrieve the underwear and brought it back to her room where there was daylight to look at them. At first, she thought the underwear were discoloured from L.’s pants, so she put her leggings in hot water to see if the dye would come out. She thought maybe the child had dropped chocolate milk on herself in the car, but there were no stains on the outside of her clothing. She therefore took the child to CHEO.
iv. At CHEO she first went through Triage [Exhibit 70] where she described her observations. She spoke with doctors, and a person from the sexual assault unit. She called FSO to advise she may be late as she was at CHEO. CHEO contacted CAS and the Police, and the doctor indicated that the child would not make it to the visit with her Father. An intake worker went to the hospital. A call was also placed to the Father to confirm that the child would not make the visit.
v. D.C. met Yvonne Richards from CAS the following day. At that time, the Mother was uncertain if Ms. Richards would be attending given her understanding that there would be a joint investigation. Ms. Richards looked at the notes on her laptop, and told the Mother that they kept track of different concerns raised, and that it was concerning to them to hear of the Mother’s allegations. She indicated that without sufficient evidence, it would look bad on the Mother. They did not end up discussing either the incident of alleged physical abuse, or the blood in the child’s underwear.
vi. At the police station, D.C. met with both the police and the CAS. The CAS concluded that it was all about custody. However, the Mother already had a custody order, so she was confused. She indicated to them that custody was not her focus, CHEO was her focus. Based on the ASF [Exhibit 18], the police notes indicated that Detective Cyr-Pidcock understood from CAS that the Father was anxious to meet with the police and the CAS, and that he had copies of an order awarding him 50/50 access of his daughter, as well as a document showing the Mother appealed the 50/50 access and got denied. However, the evidence did not show a change in custody, and there were no new orders.
vii. Around the same time as the above, the OCL report by Mr. Filleul was released, setting out a recommendation for 50/50 access. A fulsome notice of objection to the OCL report had been filed by the Mother. No significant changes to the report were made. The OCL CI disclosed the child’s daycare information which led the Mother to file a complaint against Mr. Filleul. The Mother’s counsellor also filed a complaint. There were also issues surrounding the OCL disclosure meeting which were raised by the Mother.
viii. It was not until she received the CHEO records in September, 2016 that she saw the doctor’s note at Exhibit 48 where the doctor’s diagnosis was “possible sexual abuse.”
x. At separation, the Father remained in the matrimonial home on Nutgrove. The home was sold in June, 2016. Despite this, Justice Doyle’s court order from June, 2017, did not indicate an address for the Father. A T4 had been provided sometime around that time frame with an address on Overlake Drive. The Mother only formally learned of the Father’s new address at Ms. Parker’s OCL disclosure meeting, held on September 14, 2017.
y. D.C. was surprised by Ms. Parker’s recommendations of a 2/2/3 schedule, or 50 percent of the time. She was worried that Ms. Parker relied on the first OCL report. She was concerned about the distance between the two homes, and the impact on the child, as there are approximately 45 kilometres between the homes. D.C. was also under the impression that there would be a further conference between herself and Ms. Parker. While there were back and forth messages without any further discussions, no meeting took place.
z. Regarding the travel distance, the Mother expressed concerns about L. travelling from her Father’s home in Barhaven, to her school in the Orleans area on a daily basis when with the Father. The child is usually up at 7:30 a.m. to be at school on time, which starts at 8:25 a.m. Pick up at daycare must be before 6:00 p.m. The Mother leaves work from downtown Ottawa at 4:45 p.m. to pick up the child before the daycare closes. If there are three late pick-ups, the child loses her spot at daycare. The Father works in Kanata, and it would take him longer to get to the child’s school. It would be a long day for L. if she had to get up an hour earlier to make it to school on time while fighting traffic, and then another hour of commuting after school. She felt that time travelling in the car is not time with the child. The child is tired and ready for bed by 7:30 p.m. Currently, with exchanges occurring at FSO, L. gets a break half way to effectuate the exchange. If the exchanges occurred at school, L. would not get a travelling break.
aa. The Mother confirmed that she had been providing updates about the child to the Father since February, 2015. These updates focused on what L.D. was learning and able to do, as well as providing medical updates. The Father criticized the Mother for the updates being brief, and despite them occurring regularly, in early 2015, he threatened to call the police if the Mother did not immediately provide him an update.
bb. The Father also threatened to call CAS on the Mother for sending the child for a visit, in wintertime, in a sleeveless dress with a light jacket [Exhibit 34]. There was no allegation that the child had been cold, simply that the clothing was not appropriate.
cc. The Mother also described the Father’s failure to provide and / or lengthy delays in complying with the disclosure orders.
dd. D.C.:
i. Denied any knowledge of D.F. being previously married. She indicated the city hall employee completed the marriage licence document [Exhibit 10], and confirmed answering that she and D.F. were not siblings. She recollected signing the licence, and she understood to check her own information. She denied seeing on the form that D.F. was previously married. When asked about the Divorce Order and her reaction to same, D.C. was evasive in her responses. She testified that that there were things in the relationship that he did that she really did not question.
ii. Regarding the Decree of Freedom emails [Exhibit 11], she only recalled communicating with the church to organize dates for the wedding. She did not recall the email in question, and wondered if D.F. was in communication with them. She harkened back to discussions about religion and culture, and that D.F. said some of his family would not want to be in a catholic church.
iii. During a conversation with CAS regarding the first allegation in January, 2015, she admitted it was possible she spoke of D.F. being emotionally abusive toward her, but not physically abusive. She also admitted to not wanting to believe what had been alleged against D.F. However, this was not the same as not believing it occurred.
iv. She raised concerns about the Father being abused, how it affected him, and how it could be relevant to determine custody and access to L.
v. She admitted to being questioned by police regarding possibly committing public mischief, however, no charges were laid.
vi. She provided reasonable explanations for the scratches on L., including a cat scratch, a scratch from a fall while the Mother was building an Ikea bookshelf, and a scratch from the park.
ee. In cross examination:
i. She denied the Police indicated to her that she could be charged.
ii. She denied intentionally fabricating evidence, exaggerating or falsely reporting allegations, misleading or misrepresenting allegations against the Father.
iii. She acknowledged that her Mother told her of the December, 2014 incident approximately three weeks after it occurred.
iv. She agreed that on December 3, 2014, she nursed L. at night. That was the same day that D.F. took a shower in front of L., and when a text message exchange took place. She acknowledged that between December 3, 2014 and December 31, 2014, she was the one bathing L., so she would have had the opportunity to see any injuries to the child. She indicated that there was redness and inflammation on the child’s labia, but when CHEO looked at L., it was a month later. She believed there was bruising on L.’s hips around the December 2014 time frame.
v. She conceded the possibility that Ms. Bloom from CAS directed her to take the child immediately to CHEO if there were any future incidents. She also recognized she waited until the next day to take the child to CHEO following the May, 2016 allegation.
vi. She acknowledged having commenced a letter writing campaign, writing to Immigration Canada and CAS. Her evidence was that she wanted advice.
vii. She took possession of her new home in May, 2017.
viii. The 2008 to 2013 Income Tax Returns were prepared together. From 2008 until 2011, the couple declared on their taxes that they were single. D.F. told her he did not want to file as common law, and she followed his directives despite the declaration box on the returns.
ix. The Mother’s assessment of L.’s language proficiency was different than that of the daycare.
ff. In hindsight, the Mother did not want it to be true, but she felt that there was sufficient evidence to support the concerns that led to the party’s separation. She believed that the Father possibly did to the child what he had done to her, which was to abuse her physically and emotionally.
gg. The Mother did not suggest that the Father not have access with the child. She believed however that the relationship should be safe for L., and be in her best interest. She suggested supervised access was appropriate as the child would not be scared or worried about speaking up or contradicting him.
The Maternal Grandmother’s evidence:
14M.C.’s evidence is summarized as follows:
a. Her husband, D.C.’s Father, died in 1992, when D.C. was 7 years old.
b. D.C. left the home when she was 17 years old. She brought D.F. to meet her when she was about 23 years old. They had been dating for approximately one to two months prior. D.F. was kind and polite. At supper, he made the sign of the cross, which M.C. found polite. She believed he was catholic.
c. D.C. asked her to move in with the couple to help watch L., who at the time was only a few months old. M.C. agreed, but not to cook and clean their home.
d. In describing the routine, M.C. indicated that L. would eat breakfast at 8:00 a.m., then take morning and afternoon naps, with a lunch in between. She was responsible for L. from the time the Mother left the home until she returned from work. D.F.’s sister: S.T., was also in the home around that time.
e. M.C. took care of L. from the time she was a couple of months old until she was 1 year and 15 days old.
f. D.F.’s only responsibility was to take out the garbage. It turned out that M.C. cleaned, occasionally shovelled, and sometimes made dinner for the family.
g. D.F. would spend a lot of time in the basement, but would come up for supper. He also worked, and on week-ends he watched soccer in the basement.
h. When D.C. arrived home, she would finish feeding L., then give her a bath. Upon D.C.’s arrival, M.C. went to her room and stayed there. There was very little communication between the two of them, as coldness had developed between them.
i. M.C.’s observations of D.F. toward and with L.:
i. She never saw L. laugh with her Father. He would not make her laugh. She never saw him play with the child. He would stare at her, not speaking, sometimes from three feet away.
ii. She described a day before L.D. had turned one year old, when the Father was lying in a reclined position on the couch, bouncing L. between his legs, with his penis between her thighs (not exposed). When D.C. entered the room, and asked him what he was doing, he only pushed L. back onto his thighs.
iii. On another occasion, when D.C. was preparing dinner, D.F. took L. downstairs. She did not hear laughter or toys being played with. They were downstairs for about 30 minutes. When she asked D.C. about it, she was told that D.F. did not want to be disturbed. When they returned upstairs, D.F. brusquely gave L. to M.C.
j. The December, 2014 allegation:
i. About fifteen days after D.F. was bouncing L. on his lap as described above, the Father had grabbed L. from the Grandmother’s arms. It was about 8:00 a.m. M.C. was holding L., and D.F. put his hand on her breast to push her away. M.C. told him that she had not yet fed L. D.F. took L. upstairs, and came back down at 8:55 a.m. While they were upstairs, M.C. heard D.F.’s music playing on his cell phone. He turned it off almost immediately. Through the vent, she could hear an “hmm” sound from L. When she heard the “hmm” sound, she believed D.F. was doing something to L. When he brought her back downstairs, L.’s arms were limp, she had round eyes, and she was not moving. Usually when L. saw M.C., she would move, but not that time. D.F. put L. into M.C.’s arms. M.C. told L. that she was heavy, and questioned why. D.F. left for work, and told M.C. if anything happened, she was to call him, and gave her another phone number. M.C. put L. in her high chair to eat the breakfast she had prepared. L.D. did not want to eat. M.C. thought maybe she needed a diaper change, so she put her down. The child started to walk around the counter, then fell unconscious, twice.
(a) In cross examination, M.C. added that when the child was upstairs, after the music stopped, she heard L. crying, as if she was starting to cry. The sound was blocked, like she was being prevented from crying. The sound came from the ceiling vent. Then she heard the “hmm” sound. After all of that, she heard D.F. making grunting noises. The sound was like that of a man who finished masturbating. When he brought L. downstairs, he held her like a trophy.
(b) Despite having raised her own child, despite L. passing out twice, she did not call the police or an ambulance. She did not do so the next day either, nor did she take the child to the hospital as she did not have a car.
ii. M.C. then picked up the child, put L. on the steps to go upstairs as L. liked to climb them. M.C. was going to help her, but the child was completely out of breath. M.C. brought L. upstairs to the change table, unzipped her pajamas, and saw one side of the sticky material of her diaper was down. She undid the diaper completely, and removed it. When the diaper was removed, there was blood in the diaper, and blood around her clitoris. Her poop was approximately 7 inches long, black, fresh, and on both sides of her diaper. L.’s clitoris was bright red, and sticking out approximately half a centimetre. M.C. described feeling sick, and holding herself up as she did not want L. to be alone. L. was inordinately still during the diaper change, which normally took 25 minutes to complete. M.C. threw the diaper into the garbage pail, which she described as the mistake of her life.
(a) In cross examination, M.C. added that while L.’s diaper was being changed, L.’s legs were shaking a lot, and the right side of her vulva was red and wrinkled.
(b) She stated that D.F. had abused L. on her daughter’s bed. After she put L. in her crib, and L. was sleeping, M.C. went to the parents’ bedroom and rubbed her hand on the side of the bed. The blanket was wet, and there was a very strong smell. She went to the closet door in the washroom, which was never open. On that day, it was open, and there was a small pill bottle that said “child” on it, but it was from D.F.’s doctor as he had hurt his arm. She suspected that maybe he gave L. a pill as the child’s eyes were straight and not moving at all. She indicated she had told the Police, CAS, and everyone who was sent to them about the bottle.
(c) Later that day, both D.F. and his sister were home before D.C. finished work. He would not look the Grandmother in the eyes. He again took L. from her arms and took her upstairs. She followed him upstairs, at which point S.T. yelled out “leave him alone”. She went to her room, but her room was close to L.’s. She said that D.F. never changed the child’s diaper, but she could see that he checked L.’s vulva.
(d) After D.C. returned home from work, the parents were upstairs and M.C. was in her bedroom. When L. saw her Father, she screamed. D.C. then changed her diaper, and M.C. believed that D.C. saw what M.C. had seen. While this was not stated in evidence by the Mother, the Grandmother allegedly heard the Mother tell the Father that they would talk about it after Christmas, and that she did not want to spoil Christmas.
iii. The next day, D.F. checked the garbage three times during the day, as well as the following day, trying to locate the diaper. On garbage day, he finally found it, and took out the garbage bag containing the diaper, along with the rest of the garbage. At the time, the Grandmother was in her bedroom. While taking out the garbage, D.F. turned and looked up at the window to see if she was there.
(a) In cross examination, she indicated that when D.F. looked up at her in the window while disposing of the diaper, she thought he was conveying to her that her proof just left.
(b) In cross examination, it was established that there was no garbage pickup took place on the week of December 18th. There was only recycling pick up. At that point, M.C. then could not recall what day of the week D.F. took out the garbage. M.C. was asked why she did not just show her daughter the diaper. She responded that she could not speak to her daughter, she barely saw her, and when D.C. came in, she would bring L. upstairs.
iv. M.C. recalled thinking that she needed some evidence. She used a Q-Tip and brushed L.’s vulva with it. She thought she could get some sperm off of the pajamas, so she cut a small piece of the Father’s pajamas to give to the police. She put both items in a baggie.
v. When asked the date of occurrence, M.C. indicated December 15, 2014. She told herself she needed to remember the date, and that her husband’s birthday was the 15th of August, and what D.F. did to L. was the 15th of December. She believed it was a Monday.
(a) In cross examination, a note by the child’s doctor: Dr. Tracey, stated that the concerns of sexual abuse, as reported by the Grandmother, would have occurred on December 3, 2014 [Exhibit 100]. The Grandmother denied ever speaking to the doctor. Dr. Tracey’s note indicated that the Grandmother reported it to the Mother on Thursday, January 8th, 2015.
(b) The Grandmother agreed in cross examination that she told the police that the incident happened on December 3rd, 2014.
(c) It was confirmed that on or about the 15th of December, D.C. took D.F. to the Keg for his birthday. M.C. admitted that despite the allegations, on December 25th, 2014, they all went to Sylvie’s house for Christmas supper. M.C. would have shared some information with Sylvie prior to December 25th, and on that day, she told her everything.
vi. Initially, M.C.’s evidence was that she told her daughter about the incident three to four days after it had occurred. On the day she made the disclosure to D.C., D.F. again grabbed L. from M.C.’s arms, and while he was going upstairs, she told him to “take your girlfriend upstairs”. He was upset, and asked twice why she would say that. She wanted him to say what he had done to L. Instead, he just smiled and went upstairs. When L. was returned to her, M.C. checked, and he had not done anything to her.
(a) Later in her evidence, the Grandmother testified she told the Mother the morning following the incident of sexual abuse, as opposed to three to four days later. When she told the Mother, she had L. in her arms, and D.F. was still in bed. She signaled for D.C. to come near her, and told her “do you know what you married, who you married. You married a pedophile.” Because D.C. was on her way to work, she told her M.C. to watch L. M.C. testified that she also told her daughter that the child’s clitoris was out, and there was blood around it, and that her vulva on her right side was folded. This did not form part of D.C.’s evidence.
(b) In cross examination, M.C. said she told D.C. the day after she told D.F. to take his girlfriend upstairs, as opposed to the same day, which would have been December 16, 2014. As a result, D.C. told her that she only had a couple of days to work, and asked the Grandmother to keep her eyes on L.
(c) The CAS notes from Ms. Bloom indicate, as reported by the Mother, that incident was disclosed to D.C. on Thursday, January 8, 2015.
(d) In the police notes, at Exhibit 108, M.C. reported telling her daughter about the incident about three weeks after it happened. She told the police that she did not call them on the day of the incident because she did not know what to do, that she thought of going to the neighbours, but was afraid of leaving L. at the home. When asked what she told the police when they inquired why she did not tell the Mother, her evidence was that she was afraid the Father would do it to the child again, however, her response to the police had been that she was afraid of her and his reaction, she did not know what would happen. She acknowledged also telling the police she was afraid the Mother would be mad at her. When asked why the Mother would be mad at her, she told the police “her character, his character, he did not want me to go to the party”. She was asked by the police if the Father gave her a reason for him not wanting her to go to the party, and she answered that she thought he knew what she knew.
vii. When asked why she did not tell the Mother immediately, she indicated that D.F. would take the Mother to his friends’ homes, and tell her he did not want M.C. to go.
viii. At trial, she maintained that they left the home approximately three weeks after the incident.
k. M.C. kept a number of notebooks in which she wrote out the child’s daily routine. They were kept in the kitchen, the bedroom, and in the living room. There was one book she used more than the others, where she kept important notes. When the Grandmother went to gather her belongings, one of them was missing. It was produced at trial, but M.C. indicated pages had been torn from it as some of the November and December notes were missing [Exhibit 107]. The Grandmother had apparently written the number for Children’s Aid (L’Aide de l’enfance) in the notebook, but in the original produced at trial did not contain that annotation. She had made that note because of what D.F. had done to L., in case things got worst and she had to call someone. She did not call CAS because she did not have a phone book. She did not call 911, though she indicated that at one time the number appeared on the telephone screen.
i. In cross examination, the Grandmother’s attention was brought to a date found on the same page as the CAS number, being January 8th. Her evidence was that they had nothing to do with the other, and January 8th had to do with her medication.
l. After M.C. and D.C. left the home with L., they went to L.’s home. Later that day, they returned to get some of L.’s belongings, leaving L. at L.’s home. When they attended, D.F. was angry. He squeezed D.C.’s arm tightly, and said “I don’t want you to leave me”. At the time, the couple was in the kitchen, as was the Grandmother. D.C.’s back was to M.C. M.C. heard D.C. tell D.F. that he was hurting her. L. and her husband were at the front door, and when they were signalled by the Grandmother to go into the kitchen, D.F. let D.C. go because he saw that they were not alone.
m. Her evidence was that at one point, L. started crying when her Mother bathed her. The start date of the crying was extremely vague, but it stopped following the parent’s separation.
n. Regarding the May, 2016 allegation:
(a) On the day in question, L. left for the visit with D.F. with a cute little hairband in her hair. She was happy and smiling. When she and D.C. went to pick up L. after the visit, the band was no longer in her hair. The child had a very sad face, her head was down, and while holding the Grandmother’s hand, L.’s hand was shaking.
(b) The Grandmother recalled that she was the one taking care of L., and thought maybe the Mother had classes that day.
(c) After the visit, the three of them went to Hawkesbury. She recalled going to the restaurant with L. and the Mother. She brought L. to the washroom once. She did not notice blood in the child’s underwear. Prior to going to the restaurant, they stopped by her home, where L. went to the washroom. At the time, L. did not have to go.
(d) She did not see what had happened to L., it was the Mother who saw it. D.C. called M.C. the next day to tell her she had spent the night at the hospital, where they kept L.’s underwear. There were no discussions about DNA, but the Grandmother was advised that the blood was from L.
o. M.C. recalled L. having fun with her Father when he took her to a place with slides, and when he took her to East Side Mario’s.
p. M.C. confirmed that in the summer of 2017, when L. was changing daycares, L. was in M.C.’s care for an estimated 120 hours. She denied putting things in L.’s head.
q. When it was suggested that she did not like the Father, she stated she would have liked the Father to be nicer to D.C., to respect D.C. and the child. M.C. recalled when the Father went to her home for Thanksgiving and he told M.C. that her daughter was ugly.
r. M.C. described L. as a child who loved to change dresses, up to four times a day. She matched her shoes to her dresses. L. is very intelligent, has a good memory and is a quick learner. She has a good appetite. She loves her Mother very much. She described L. bringing her Mother a wet face cloth one day when her Mother had a head ache, and put it on her forehead.
s. She described playing “high ho”, or playing outside with L., and singing together.
t. She recalled D.F. telling M.C. not to talk to the neighbours, that it was nobody’s business what was going on in their home.
u. She denied making any comments of a sexual nature in front of D.F. and his friends. She denied having pictures of men wearing bikinis in her home.
v. In cross examination, she conceded that when asked by Mr. Filleul to describe life for the couple prior to the incident, she voiced no concerns. She had indicated to him that they worked well together. She tried to remedy her answer by indicating that she was not there to see how things were going, that she simply said to herself that things were fine. She then recalled the couple laughing and tickling and being playful together in the beginning.
w. She further agreed that at the beginning, things were great for the new family. When asked if L. was happy, she answered in a confrontational fashion, stating that she was not always checking to see if L. or the parents had a smile on their faces. She indicated that she was residing in Hawkesbury, she was not always there.
x. She acknowledged that L. travelled well to and from Ottawa to Hawkesbury, which was approximately 90 minutes each way.
y. M.C. denied planning to hurt D.F. or the child. She loves her granddaughter very much, and agreed she would do anything to keep her safe. However, despite seeing something very horrific happen to her, she did not call CAS, the police, or the child’s Mother on the day it occurred. She told the Mother as soon as she had the chance. She admitted that if L. had fallen down the steps, hit her head and was unconscious, as opposed to having been abused by her Father, she would have called D.C. to let her know that an ambulance was required. She was afraid of the Father’s attitude in the house. She did not trust him. He gave her orders. She was afraid for her daughter and granddaughter. Despite the fear of D.F., she never moved from her residence in Hawkesbury, as she said the law exists, they were still in court, and her door was protected by an alarm.
15Overall, the majority of M.C.’s evidence regarding dates was contradictory and unreliable.
16While M.C. clearly has a great deal of love and affection for both her daughter and granddaughter, as a whole, she presented with significant animus toward the Father, which brings into question the reliability of her evidence.
Information from CAS:
17Ms. Donna Bloom, an investigator from the Children’s Aid Society of Ottawa, became involved on January 12, 2015, following a call from the CHEO emergency department regarding concerns of alleged sexual abuse by the Father toward the child. She and the Ottawa Police Services investigated the allegation. She met with the Mother and Maternal Grandmother, separately.
18The Mother disclosed that she had learned of the December, 2014 allegation on January 8, 2015, which led to the delay in attending CHEO. M.C. reported to Ms. Bloom that she had been concerned about the Father’s behaviours toward the child, including lying on the ground with L. on his genitals, that he would hold her too tightly, that he would shush her. M.C. stated that on the day of the alleged incident, both the bedroom and bathroom doors were locked when D.F. had L. upstairs. M.C. indicated that the incident took place in December 2014. When she changed L.’s diaper, she was in shock and threw it out, but did put a Q-tip into L.’s vagina to get a sample of the semen. The child had bruising on her hips.
19Ms. Bloom advised the Mother that if she had serious concerns about the child, she was to take the child to the doctor’s office without waiting.
20She confirmed that D.F. was not charged. The CAS did not verify any concerns, and they closed their file.
21Ms. Yvonne Richards’s was the child protection investigator involved with the parties from May, 2016 until September, 2016. She attended the Mother’s home on May 16, 2016 to address concerns on what was the initial referral, relating to physical discipline of the child. Upon arriving, the Mother advised Ms. Richards that there had been another referral made on May 15, 2016 regarding what appeared to be blood in the child’s underwear following a visit with her Father. After confirmation of same, Ms. Richards did not proceed with the investigation as protocol was to conduct a joint investigation with the police. Independently, CHEO reached out to CAS and the police regarding the May 15, 2016 allegation.
22Ms. Richard’s evidence was that the police investigated the allegations, and no charges were laid.
23During the course of her investigation, the worker observed L. with the Father. She did not observe anything inappropriate, distressing, or anything outside of the usual parent/ child healthy interaction. L. did not show any nervousness. She testified that in a case of allegations of physical discipline or sexual abuse, two very serious allegations, she would expect to see nervousness or discomfort. L. sat on her Father’s legs. The visit was between 30-45 minutes. Ultimately, no concerns were noted.
24She observed D.C. during her interview at the police station. D.C. went to CHEO with the underwear when she became increasingly concerned about the stain. She did not check her daughter, but took her to CHEO after the child made a statement.
25Ms. Richards observed D.F. at the police station. He did not make any statements that revealed any physical or sexual harm to L. She also spoke to D.F. personally. He asked CAS to help the Mother because the child should not be put in this situation. Ms. Richards understood that D.F. was frustrated about the situation, and recognized that parents often want the Society to take a position. She did not see D.F.’s requests as wanting to have custody of the child. She found D.F. presented as credible, and very emotional, about what his daughter had experienced.
26The initial concern reported on May 5, 2016 to CAS was based the child hitting herself and making statements about her Father. This led D.C. to be worried about physical discipline while in the Father’s care. The Society expressed concerns about the inference drawn by D.C., that she jumped to conclusions, and that her responses to the child were concerning. Due to the conclusions the Mother was reaching, along with the current custody and access issues, the Society was worried about the child being subject to the parent’s own agenda. The Mother was cautioned about the potential of emotional harm to the child by being brought into the conflict. Following the observation visit with the child and the Father, and the Mother’s caution to deter false allegations, the file was closed. The worker testified to not receiving any new complaints regarding this matter since then. Ms. Richards acknowledged that she may have told D.C. that if there were any further calls, there would be more intrusive involvement by the Society.
OCL Reports:
27To assist the court in determining what is in the child’s best interest, the court has received two OCL reports pursuant to section 112 CJA. The first report was by Adam Filleul, where he recommended joint custody with shared parenting. A fulsome dispute to same was filed by the Mother. Ultimately, however, the report remained substantially unchanged.
28On November 2, 2017, Stephanie Parker from the OCL provided an updated report. Rule 21 FLR states: any dispute to a report must be communicated within 30 days of its release, and that a trial shall not be held, and the court shall not make a final order, until the 30 days to file a dispute has expired or the parties file a statement giving up their right to that time. This issue was addressed with the parties during the trial. At the time, both parties indicated, through counsel, that they did not wish to dispute the OCL report. However, the Mother’s evidence clearly went against the OCL’s recommendations. In this case, the court weighs the lack of formal dispute with the commencement date of trial (November 28, 2017), and both parties’ desire for an expeditious and final resolution of the matter.
29In Ms. Parker’s report, she recommended sole custody to the Mother, with a gradually increasing access arrangement leading to shared parenting with a 2-2-3 schedule.
30Both OCL reports are recommendations made to the court on custody and access, based on the clinician’s investigations. To determine what weight is to be given to the information and recommendations contained in the two reports, the following was important:
a. Neither party challenged Mr. Filleul nor Ms. Parker’s qualifications.
b. Both Clinical Investigators spoke with the Children’s Aid Society, received reports from CHEO and the police:
i. Both OCL CI refer to the results of polygraph evidence. The court determined this evidence was inadmissible, and it was not considered in its determination of the issues.
i. Ms. Parker confirmed that if the polygraph evidence did not exist, her conclusions would remain unchanged.
ii. Both OCL CI’s confirmed that CAS did not verify the allegations of sexual abuse or physical abuse by the Father toward the child. CAS reported to OCL that they took no position regarding access.
iii. Mr. Filleul and Ms. Parker indicated with regard to the police investigation, no charges were laid.
iv. Mr. Filleul’s report stated that CHEO concluded there was no observable physical evidence that L. had been sexually abused. Ms. Parker indicated that CHEO could not establish that the sexual assault occurred on both occasions where L. had been seen. Exhibits 43, 44, 48 and 49, which were put to the OCL CI’s in cross examination, led to a less conclusive position: “…the presence of a normal clinical exam by itself cannot confirm or exclude the possibility of sexual abuse” [Exhibit 44, page 3] and “Physical exam was normal, which does not deny the concerns for sexual abuse.” [Exhibit 49] Both OCL thereafter confirmed that CHEO could neither confirm nor deny if there had been sexual abuse.
c. Mr. Filleul concluded that there was no evidence to suggest that the Father posed a risk of sexual harm to the child, or that parenting time should be supervised or otherwise restricted.
d. Mr. Filleul stated that “there has been no evidence presented that Mr. [F.] intends to return to Ethiopia”, yet testified that he did not ask D.F. about travelling, and was under the impression that D.F. had no intention of travelling with L. Mr. Filleul indicated that if the Father followed what he said, then as set out in his report, there was no evidence to suggest that D.F. posed a flight risk. The Father had advised Mr. Filleul:
i. He was not concerned about his risk of deportation despite the manner in which he moved to Canada, and his false sponsorship of his sister.
ii. He did not have access to his passport unless it was on consent of both parties, and he would consent to conditions restricting his access to L’s passport.
e. In the updated report by Ms. Parker, D.F. indicated he would like to take L. to Ethiopia for an extended vacation. However, given that there had been no evidence of attempts to leave the country during unsupervised access between D.F. and L., Ms. Parker came to the same conclusion as Mr. Filleul, that D.F. was not a flight risk.
f. Mr. Filleul revealed the name of the child’s daycare to the Father when specifically requested to keep it confidential by the Mother. Due to same, the Mother refused to provide this type of information to Ms. Parker.
g. Mr. Filleul did not speak or understand French, and M.C. was not comfortable in speaking English. Mr. Filleul admitted that there were clear communication difficulties which affected his ability to elicit or understand information from the Maternal Grandmother.
h. Ms. Parker initially agreed that that Mr. Filleul’s report was premised to be correct. She clarified however that she conducted her own investigation, and made her own findings.
i. Ms. Parker agreed that as a general presumption, both parents should be available to a child and play an active role in their lives.
j. Both Mr. Filleul and Ms. Parker concurred that the Mother was the primary caregiver to L. prior to separation.
k. They each observed L. to have a positive relationship with both her Mother and Father.
l. Both clinicians confirmed D.C. reported allegations of abuse and control in the relationship with D.F. D.C. also reported D.F. being abusive toward his sister. The concern of physical abuse toward L. was raised in the second report. The clinicians both acknowledged contradictory accounts of the relationship by both parents. D.F. denied all of the Mother’s allegations. Mr. Filleul put very little, if any, emphasis on the allegations. Based the high level of conflict between the parties, and the Mother’s reported fears of the Father, Ms. Parker recommended sole custody of the child to the Mother.
m. At trial, Mr. Filleul stated that he did not feel that the circumstances at the time were in L.’s best interest. His recommendation was to provide an opportunity to increase L.’s relationship with her Father. On the issue of custody, he felt it was in L’s best interest to have an opportunity to experience a new parenting plan before making a new recommendation. His report suggested sharing joint custody, or alternatively remain silent on custody until the new parenting schedule had been implemented. The parenting schedule provided a goal of shared (50/50) time.
n. Ms. Parker recommended that L. have increased access time with her Father and be given the opportunity to have a strong and positive relationship with him as well as with her Mother, through equal time spent in both homes. She recommended the current access time would gradually increase to equal access time for L. with both parents sharing parenting on a 2-2-3 schedule. She stated in her report that an equal access schedule was recommended due to the Mother and Father’s significant strengths. There was an expectation on the Mother to involve the Father in all areas of the child’s life, failing which, a change of circumstance would occur and custody should be reviewed.
o. While the Mother’s home address was not provided to Ms. Parker, the clinician was made aware of the 45-kilometre distance between both parents’ home and despite same, maintained her recommendation. She stated that due to L.’s age, a schedule with more frequency between both homes continued to be most appropriate. The Father was willing to do pick-ups and drop-offs from and to school / daycare. On days where there was no school or daycare, exchanges would occur at a neutral mid-point location in the City of Ottawa. An exchange program was not recommended due to their limited hours.
p. Based on Ms. Parker’s recommendation, evidence led at trial established that L. would be in the car between 70 minutes and 2 hours, five minutes (125 minutes) per day. Ms. Parker acknowledged that it was a long time for a little girl to be in the car, but she had factored in the travel time when she made her recommendations.
Agreed Statement of Facts [Exhibit 18]:
31Rather than calling the police as witnesses at trial, the parties agreed that their evidence would be contained in the Agreed Statement of Facts, which, briefly summarized, set out the following:
a. The police were called by CAS on January 13, 2015 regarding allegations of sexual assault.
b. On January 16, 2015, the police were called to the maternal aunt’s home as the Father was present and refusing to leave. At that time, the police advised the Father of an ongoing investigation between them and CAS. Police checked on the child, who was asleep in her crib. The next day, the Father attended the police station, which led to a safety check of the child.
c. On January 19, 2015, the police were dispatched to the Ottawa courthouse to accompany the Mother to her car.
d. On January 21, 2015, the Mother and Maternal Grandmother were interviewed by Detective Woods. M.C. provided Detective Woods with the two Q-Tips and a clothing sample, sealed separately in zip lock bags. On January 22, 2015, the Father was interviewed by Detective Woods, and provided a DNA blood test, signed a consent form for the DNA, and agreed to polygraph testing.
e. On February 2, 2015, the Father provided a video of the child which had been taken December 3, 2014 by S.T.
f. The Father attended for polygraph testing on February 13, 2015. On February 18, 2015, the Mother and Maternal Grandmother were interviewed and advised that no charges were going to be laid. Detective Woods also determined that the samples provided by M.C. could not be used as evidence as there was no corroboration regarding how and when the samples were taken.
g. On May 15, 2016, the police were called by CAS regarding blood found in the child’s underwear the night before. Detective Cyr-Pidcock’s notes from May 16, 2015 indicated that she understood from CAS that the Father was anxious to meet with CAS and police, had a copy of an order awarding him 50/50 access of his daughter, and a document showing that the Mother appealed the 50/50 access and got denied.
h. From May 18, 2016 to September 22, 2016, interviews occurred between the police and D.F., D.C., and M.C. The Mother and Grandmother underwent polygraph testing.
i. On August 4, 2016, the DNA report regarding the child’s underwear indicated that no male DNA was detected. The blood belonged to the child. Amylase was also detected in the child’s underwear and was not attributed to male DNA.
j. On September 6, 2016, a forensic scientist indicated to the police that “Furthermore, to be clear, the amylase detected is not specific to saliva, it may be associated with other bodily fluids/tissues (including faeces). Furthermore, any DNA from said area cannot be attributed to a specific body fluid/tissue (and may or may not be associated with the amylase activity detected). Based on the above, it is my opinion that no further work is warranted.”
k. On September 22, 2016 Detective Cyr-Pidcock advised the Father by telephone that no charges would be laid, and the file was closed.
Information from Carrie Dean – Daycare Worker:
32Ms. Dean testified about her involvement with the child and the parents while L. was at the Little Scholars daycare. She described L. as being very quiet. She would talk to her in English. She was in the casa (preschool) program prior to Ms. Dean leaving for maternity leave.
33She sometimes saw the Mother, but she had no contact with the Father except for one occasion. While Ms. Dean did not have a clear recollection of that occasion, she was able to refresh her memory based on the Incident Report Form dated August 12, 2016 [Exhibit 106]. She recalled receiving a telephone call from a gentleman claiming to be L.’s Father. She could not give out any information regarding the child because she could not confirm his identity. He became upset. She recalled being distraught about the phone call, but could not remember the tone used by the caller. The centre refused any future communication with the caller. No apology was received by the Father. If incidents like this were to continue, the result would be termination of services for the child. She denied the Father’s assertion that he communicated with her politely and respectfully.
34In cross examination, she could not recollect any information of a custody battle, or discussing why the Father was not listed as a pick-up person. The intake form would have been completed by the Mother. She confirmed that Exhibit 106 was verbalized by herself, and typed up by another person at the center. After it was typed, she read and signed the report. D.C. would have been provided a copy of the incident report via email. The Mother apologized for the incident. Services to L. were not terminated, and there was no further contact by the Father.
35Ms. Dean did not recall L. displaying any inappropriate behaviour or sexualized comments.
ISSUE 1: POLYGRAPH EVIDENCE
36At the outset of trial, the first issue argued was that of the polygraph test results. For detailed reasons put on record, the test results shall not form part of the evidence as they are not admissible. Further, despite polygraph testing and results being discussed in some reports upon which the parties rely, they are irrelevant, and have not been considered whatsoever in this court’s analysis.
ISSUE 2: CREDIBILITY
37Over the length of the trial, the court listened attentively to the parties’ evidence. The Father, the Mother and the Maternal Grandmother all presented with credibility issues. Their evidence was coloured by emotion generated by the breakdown of the relationship and the allegations of abuse.
38In assessing the credibility of the parties, the court reflected on the outline for assessing credibility as set out in Novak Estate, Re, 2008 NSSC 283, which was reviewed by Justice Beryl MacDonald in N.D.L. v. M.S.L., 2010 NSSC 68 at paragraph 13. Specifically considered was whether the testimony was plausible, inconsistencies and weaknesses in witnesses’ evidence, including internal inconsistencies, prior inconsistent statements as well as inconsistencies between the testimonies of different witnesses. Motives of witnesses to fabricate evidence was also assessed. There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence: R. v. D.R. [1966] 2 S.C.R. 291 at paragraph 93; N.D.L. v. M.S.L., supra.
39For the following reasons, the court has significant misgivings about D.F.’s evidence, and for the most part, finds it to lack credibility:
a. D.F. was born in Ethiopia, where for the first few years of his life, due to his Father’s political connections, he resided with his uncle: F.M. (also known as F.W.). His uncle was listed as his Father on his birth certificate, and his uncle’s wife: A.L. (also known as A.W.) was listed as his Mother on his birth certificate. He was therefore known as D.F. On his marriage licence application [Exhibit 10], a sworn document, D.F. listed these two people (his aunt and uncle) as his parents, despite his testimony that they were not his actual parents.
b. D.F. sponsored his sister: S.T. into Canada. He indicated that he was “very truthful from the beginning”, yet in the same breath, explained how he went to Ethiopia, and married his sister in order to sponsor her illegally into Canada. He signed an application through Immigration Canada to sponsor S.T., stating an intention to proceed only if no interview was required. The application indicated S.T. was his wife. He did not declare that she was his sister. He testified that D.C. was in charge of the process, but he signed the application. Thereafter, contradicting himself, he stated that he filled out the information to sponsor S.T. He stated that he did not have the benefit of a lawyer, and wished he had read the information on the website. He stated that it was his design to bring S.T. into the country, not lie to Immigration Canada. In cross examination, D.F. was very defensive and evasive regarding this issue.
c. D.F. and S.T. filed for a joint Application for Divorce [Exhibit 24], dated June 13, 2011 by D.F., and June 14, 2011 by S.T. S.T. was the Applicant. D.F. testified that most of the process was completed by S.T. He recalled signing some papers as directed to by S.T. In cross examination, D.F. admitted he not only signed the Application, but completed other parts of the paperwork, such as the relationship dates. While he testified that he swore to tell the truth for the Affidavit for Divorce, his evidence was that “at the time, I had no idea what affidavit means. The only thing I know is that I signed a paper.”
d. When asked by his counsel how the court was to believe him based on the forgoing credibility issues, D.F. stated that the issue of his daughter’s custody and access were different from the immigration issues. He did not see how one had to do with the other. He indicated “I haven’t done anything wrong… yes, I brought my sister as my wife, I made a mistake. I apologize for my mistake, I will never do it again… I didn’t know what I was doing, I was young. As a result, I take responsibility.” He then indicated that when it came to family court, he was the only credible person, he was honest and told the truth, whereas D.C. was not telling the truth.
e. There was question as to D.F.’s real name, given that his birth parents were not those listed on his birth certificate. Though D.F. was evasive about this issue, he nonetheless confirmed that he not only went by D.F., but has also gone by “D.”, and his friends called him “F.”.
f. D.F.’s evidence at trial was inconsistent with what was contained in his court documents, for instance:
i. In his Reply and Affidavit of April 7, 2015, he indicated that he was not raised by his biological parents, which was contrary to what he stated in his police interview. To police, when asked by whom he was raised, he said family. The police asked if it was like a Mother and Father, and D.F. said yes. At trial, he said he was raised by his uncle and aunt until he was 12 years old. There was no mention of that age in his Reply or Affidavit. D.F. indicated that the affidavit was general. At trial, he was being specific. As for the police interview, he indicated that he was not asked about living with his uncle. When asked directly, he denied lying to the police about who raised him.
ii. D.F. testified that he worked 8 hour days, and occasionally in the evening or on the weekend. It was put to him that he told police that 98% of the time, he worked 16 hour days. He denied any recollection of that statement, and indicated that the statement was a mistake: “it’s the same thing that when you type, you make a mistake. That was a mistake”. When asked if the statement should not have been said because it was not true, his answer was “it’s not about true or false, it’s a mistake, 16 hours is not a valid number”. When it was suggested that his working long hours matched D.C.’s version of events, he then indicated that was before L. was born.
iii. In his Reply and his Affidavit of Feb 28, 2015, he indicated that Detective Woods determined that there was no semen or blood found on the Q-tip from the first alleged sexual assault. He confirmed that his affidavit was a sworn document. He also testified that this was the information he received from his lawyer at the time. He also told the Children’s Aid Society this information, however the Agreed Statement of Facts does not reflect same. At that point in time, counsel for the Applicant stipulated that the truth was misstated in D.F.’s affidavit, as the Q-tip was in fact never tested. D.F.’s Affidavit of April 7, 2015, stated that the “the lab processed the swab and neither blood nor semen were present”. Counsel for D.F. stipulated that the wrong information was communicated into evidence to the court.
g. D.F.’s evidence about the dispute with the child’s daycare was diametrically opposed to that presented by the daycare worker. The worker testified about a telephone call from the Father that left her upset. D.F. started by blaming D.C. for the incident in the first place, as she was the one who would communicate with the daycare, and he was not aware what she would tell them. He then said that he was the one who was threatened, that the behavior described was not his behaviour, and in fact, the incident never happened. The court preferred the evidence of the daycare worker despite her faded recollection of events.
h. With regard to the May, 2016 allegation, D.F. reported to CAS that he had an order awarding him 50/50 access to L., which the Mother had appealed and had been denied. This was not in fact true, and what D.F. had was an OCL report, to which the Mother had filed an objection. Whether this was an oversight or an attempt to manipulate the CAS was unclear.
i. D.F.’s testimony was fraught with diatribes, denials of wrongdoing, and deflections which included making accusations against the Mother, or statements that the Mother was limiting the child’s “natural rights”. He was evasive in his answers and repetitive. When asked pointed questions that went to his credibility, he either blamed others for his mistakes or misstatements (i.e.: Immigration paperwork stemming from his arrival into Canada was his uncle’s fault, information contained on his Income Tax Return was not completed by him personally), repeatedly apologized for his actions (i.e.: having provided false information to Immigration Canada when he sponsored S.T., or having sworn a false Affidavit for Divorce), or provided outright denials to any and all allegations. His evidence was less than forthright. He continuously took the position which aligned with the most favourable outcome sought by him, in an “ends justify the means” type of manner.
j. D.F.’s trial testimony was troubling as he purported to be truthful, yet lied to the court on his Affidavit for Divorce, and lied to Immigration Canada in his sponsorship application, where a declaration was required. D.F. suggested that admitting to the above errors in judgement should excuse his behaviour, and not weigh against his evidence. On numerous occasions throughout the trial, D.F. testified that it was not his intention to lie. However, the evidence belied his assertion. The court finds that D.F.’s evidence demonstrated a carelessness with the truth which significantly undermined his trial testimony.
40The court noted the subsequent that diminished D.C.’s credibility:
a. D.F. testified that D.C. was aware of the plan for S.T. to immigrate to Canada under false pretences, and that D.C. was aware of the marriage between D.F. and S.T. Despite D.C.’s denials, the court has difficulty reconciling these denials with the email correspondence between herself and the church regarding the Decree of Freedom [Exhibit 11].
b. The court is also unable to accept D.C.’s evidence that she did not see that a box was checked off in the application for the marriage licence [Exhibit 10] indicating that D.F. was previously married. The court finds that there was sufficient evidence to establish that D.C. was aware D.F. was previously married. This court is unable however to determine if D.C. was aware that D.F. married his sister, that he sponsored her into Canada under false pretences, or that D.C. was involved in any manner with the sponsorship application. Suffice it to say that only D.F.’s signature was on the sponsorship application.
c. On or about January 16, 2015, D.C. told Ms. Donna Bloom from CAS that D.F. was emotionally abusive to her, but not physically abusive. In cross examination, when Ms. Bloom’s notes were put to her [Exhibit 90], D.C. testified that she recalled telling Ms. Bloom that D.F. had not punched her in the face, and indicated that her focus about the child, not her relationship with D.F. This information was problematic given that was one of D.C.’s main issues was the physical abuse she suffered at the hands of the Father.
d. Despite her educational and professional background, D.F. admitted to filing her Income Tax Returns marking herself as single, allegedly at the behest of D.F., notwithstanding having to make a declaration on the return as to the validity of the information.
e. D.C. provided the court with an affidavit dated March 4, 2015 [Exhibit 87] where at paragraph six, she indicated that on March 3, 2015, Detective Woods advised her that the results of the DNA test (Q-Tip swab) were negative, and that the Father’s DNA was not on it. This sworn or affirmed statement was not supported by the ASF [Exhibit 18], which sets out that the samples provided could not be used as there was no corroboration as to how and when the samples were taken.
f. Further, D.C.’s testimony regarding the Father following her when she was leaving the Ottawa courthouse on January 19, 2015 was not consistent with the police report which indicated that the escort was completed without incident.
41With regard to the evidence provided by the Maternal Grandmother, M.C.:
a. M.C. provided what the court finds to be categorically unreliable information regarding dates. She was clearly confused about when events occurred, yet refused to admit to any confusion. For instance, she spoke about telling her daughter, D.C. in May, 2017, about comments made by the child in June, 2017. She was unable to reconcile the impossibility of recounting something which could not yet have occurred, and remained steadfast in her belief of when each event occurred.
b. M.C. was equivocal about the date of the alleged sexual assault. She told the police that it was December 3, 2014. It was alleged that she conveyed the same information to the child’s doctor. At trial, her evidence was that she told D.C. the incident occurred December 15, 2014. She maintained that date as the date of the alleged abuse.
c. She provided equally conflicting evidence about when she disclosed the allegation to D.C. While she initially advanced that she told D.C. about the allegations three to four days after it occurred, the same day she made the “girlfriend” comment, she then said she told the D.C. the day after she made the girlfriend comment. Then she stated that she disclosed to the mother the day after the allegation of sexual abuse. Finally, she indicated she disclosed it three weeks following the allegation of abuse. D.C. and CAS noted the disclosure was made on January 8, 2015.
d. M.C.’s evidence about the disposal of the child’s diaper following the alleged sexual abuse was not believable. She testified in chief that her greatest mistake was throwing out the diaper. D.F. took out the garbage that day, something he rarely did. The following day was the garbage pick-up date, and she recalled seeing D.F. take out the garbage, look up to her at the window to see if she was there. However, in cross examination, it was established that there was no garbage pick up the week of December 15, 2014, the date she was certain the abused occurred.
e. Ultimately, the court found that M.C. presented with significant animus toward the Father, which greatly affected her credibility.
42As a rule, where corroborating evidence has been provided from an independent source, the court was more inclined to accept that evidence. Where the court was required to make a finding based solely on the contradictory evidence of the parties, the court favours the evidence of the Mother. However, due to insufficient and contradictory evidence presented at trial, the court is unable to find, on a balance of probabilities, that the child was either sexually or physically abused by her Father. This issue is addressed in greater detail below.
ISSUE 3: HEARSAY EVIDENCE
43During the course of the trial, this court heard evidence of statements made by L.F. to either to the Mother and /or to the Maternal Grandmother. Blended Voir Dires were held. Both parties agreed that the statements made by the child were reasonably necessary as neither felt it was appropriate to call the child. Therefore, an analysis this part was not required. The court found that some of the proffered statements met the threshold reliability test and were therefore admitted, subject to determination of ultimate reliability at the trial.
44After having heard all of the evidence, this court finds, on balance of probabilities, that the statements allegedly made by the child were not sufficiently reliable to afford them any weight. This determination is based principally on the following:
a. The mental and physical age of the child when making the statements.
b. The circumstances of the taking of the statement.
c. The risk that the child was influenced or manipulated. (for points a, b, and c above, see Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para. 60)
d. The statements were not made to an independent third party. They were only made to the Mother and/ or the Maternal Grandmother, both of whom have an interest in this litigation and the outcome.
e. Both the Mother and Maternal Grandmother presented with significant credibility issues when it came to their evidence, predominantly that of the Maternal Grandmother.
f. The lack of specificity surrounding the statements, particularly those made to the Maternal Grandmother.
g. The probative value of the statements does not outweigh the prejudicial effects of same.
ISSUE 4: ALLEGATIONS OF SEXUAL AND PHYSICAL ABUSE ON THE CHLD
45The evidence led by M.C. regarding the alleged sexual abuse which occurred just prior to the parties’ separation was inconsistent, confusing, and at times contradictory. She and D.F. are the only two people who testified at trial that actually know what occurred on the day in question.
46The Father repeatedly indicated at trial that he was innocent of the allegations. He relied on the fact that the police did not lay charges, and that the CAS did not very risk of harm to the child to support his innocence. While these factors are important, they are not conclusive of innocence.
47The Father questioned the delay in M.C. telling the Mother about the allegations. The court is mindful that there can be a multitude of reasons that can lead to a delay in disclosure, such as fear, guilt, or lack of understanding and knowledge. Delay in disclosure, standing alone, should not give rise to an adverse inference against credibility (see R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44).
48The court is unable to draw any conclusions regarding the blood in the child’s underwear which was discovered on or about May 15, 2016. The DNA results from the blood found in the underwear confirmed it was the child’s DNA, and that there was no male DNA in the underwear.
49The court finds that the appropriate standard in determining this issue is the balance of probabilities approach. To echo the comments made in N. (A.) v. W. (B.), 2005 ONCJ 301, [2005] O.J. No. 5246 (Ont. C.J.) at para. 18:
Like the children's aid society, all I can conclude is that the allegations made cannot be verified. Although anything is possible, assertions must be proven on a balance of probabilities in a court of law such as this. This court has a duty to assess the overall best interests of children, which not only includes having to evaluate allegations of harm but also allegations of harm based on conduct by either parent, and also the potential harm caused to the children as a result of their emotional and physical ties with a parent being severed for long periods of time.
50Ultimately, after hearing all of the evidence, the court is left with too many inconsistencies, ambiguities and contradictory statements to determine, on a balance of probabilities, that the alleged sexual or physical abuse against the child occurred. The issue regarding risk of harm is addressed below.
ISSUE 5: CUSTODY AND ACCESS
51The Mother was seeking an order for sole custody of the child. She also requested that the Father’s access to the child be supervised and limited.
52Though the Father in his Application sought sole custody of the child, in submissions, he requested sole custody to the Mother, or alternatively joint custody. Regarding access, the Father adopted the OCL recommendations that he have unsupervised access to the child based on a gradually increasing schedule leading to shared time between both parents.
THE LAW
53This is an Application under the Divorce Act (“DA”), the Family Law Act (“FLA”) and the Children’s Law Reform Act (“CLRA”).
54The starting premise is both parents are equally entitled to custody of a child: section 20(1) CLRA.
55Pursuant to section 16(8) of the Divorce Act, and section 24 CLRA, an order for custody of or access to a child must be made in the “best interests of the child”, as determined by reference to the conditions, means, needs and other circumstances of the child.
56Other relevant considerations from the Divorce Act are:
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
57As stated in Young v. Young, the best interest of the child is the only test in making custody and access orders. While section 16(10) DA sets out a statutory requirement to consider maximum contact with both parents, this is only so far as it fits within the requirement to serve the best interests of the child, which entails an impartial and objective view of the evidence (see Young v. Young, (1993) 1993 CanLII 34 (SCC), 4 S.C.R. 3, at para’s 210, 212 and S.(E.) v. M.(D.), 1996 CarswellNfld 278). Parental preferences and “rights” play no role: Young v. Young, supra.
58Subsections 24(2), (3), (4) CLRA set out the relevant considerations in assessing the best interests of a child.
59A joint custody order may be appropriate in three main types of cases: (1) where the parties agree to a joint custody order; (2) where there is a positive history of cooperation between the parties; and (3) where it is appropriate to preserve one parent’s relationship with the child: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA); Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 193 O.A.C.; Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556 (O.C.J.); Patterson v. Patterson, 2006 CanLII 53701 (ON SC), [2006] OJ No. 5454 (S.C.J.).
60The court compared sole and joint custody in Kruger v. Kruger:
In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.
By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent's immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.
If the foregoing can be said to be a reasonably accurate formulation of what is involved in this kind of joint custody, it seems obvious that it is indeed an arrangement that requires maturity on the part of each parent:
(a) in accepting that the other is a person with whom he or she can share, on an equal basis, the control over and responsibility for the child which together they, as parents, must assume in making the many important decisions that must be made with respect to the child's care, upbringing and education (including of course the child's religious upbringing); (b) in accepting that the child must physically reside with one or the other of them (in the words of Weatherston, J.A., in McCahill v. Robertson (1974), 1974 CanLII 2225 (ON SC), 17 R.F.L. 23, quoted in Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 at p. 396, 95 D.L.R. (3d) 529 at p. 534, 8 R.F.L. (2d) 236, to which reference has already been made: ''A child must know where its home is and to whom it must look for guidance and admonition ..."), and (c) in accepting that generous access by the other parent is an essential part of the arrangement and must be assured by some sort of agreement that can operate in such a way that it will not ultimately reduce to ruins the whole arrangement.
Above all, it requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work: Kruger v. Kruger, 1979 CanLII 1663 Ont. C.A.; Khaled v. Khaled, 2014 ONSC 2087, at para. 57.
61There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort: See V.S.J. v. L.J.G., 2004 CanLII 17126 at para. 128; Jafari v. Dadar, [1996] N.B.J. No. 387 (QL). However, a non-custodial parent does not have an absolute right to access. Access shall only be ordered in circumstances where there will be a benefit to the child: Worthington v. Worthington, 2000 CanLII 22469, at para. 56.
62Supervised access is not the norm in custody and access disputes. For an order for supervised access to be made, it requires evidence of unusual or exceptional circumstances. The onus is on the parent who seeks to limit access to prove that the restrictions are in the best interests of the child: C.G. v. M.G., 2009 ONCJ 254 at para. 9. Supervised access is just one small step away from a complete termination of the parent-child relationship: V.S.J. v. L.J.G., supra, at para. 1. Supervised access is seldom viewed as an indefinite order or long-term solution. While there may be occasions when supervised access is appropriate for medium or long term, this may undermine the child’s right to maintain personal contact with the parent: V.S.J. v. L.J.G., ibid, at para’s 138 and 139.
63A section 112 C.J.A. OCL report is not an expert report nor is it an assessment. An OCL report is largely a fact gathering exercise. The statute expressly provides for an investigation to be made and for a report that includes recommendations: Taylor v. Clarke, 2017 ONSC 1270 (Ont. S.C.J.). It is to the court to make the ultimate determination of what is in the child’s best interest, and this cannot be abdicated to a clinician. The report is a useful tool but is merely part of the evidence: see Rice v. Abbott, 2006 CarswellOnt 7769 at para. 97; Jobb v. Parrish, [2001] O.J. No. 5171 (Ont. S.C.J.))
64OCL recommendations should be considered and weighed along with all the other evidence. They are not determinative. The weight to be given to the recommendation is affected by the weakness in the report: Rice v. Abbott, supra, at para. 99.
65A parent’s past conduct may be considered only to the extent that it relates to their ability to act as a parent. While some actions may reflect poorly on a party as a spouse, this may have not affect the party’s ability to parent: Somerville v. Somerville, [2007] O.J. No. 1079 (Ont. C.A.).
66In any case, an allegation of a parent's sexual abuse is a very significant factor relevant to the parent's ability to act as a parent and to the child's overall best interests to avoid future physical and emotional harm that would befall a child if subjected to sexual abuse by a parent. See s. 16(9) of the Divorce Act and s. 24(4) (d) of the CLRA: Bates v. Bates, 2011 ONSC 3027 at para. 122.
67As stated by Justice Puddester in S.(E.) v. M.(D.), supra, at para. 50, the assessment to be conducted by the court is not whether or not a particular incident was proven on a balance of probabilities, but rather the issue is the child’s best interest, taking into consideration all of the evidence, including risks or likelihoods.
68Regarding risk of harm, Justice Richetti stated:
[T]he court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any "risk of harm" to the child. It requires the Court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The Court's determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child's best interests going forward: Bates v. Bates, supra, at para. 139; Daya v. Daya, 2015 ONSC 6240.
69The issue in a custody and access case where sexual abuse is alleged is not whether it has been proven that sexual abuse did occur in the past but whether there is a real risk to the child in the future and, if so, whether that factor, when weighed against all of the other factors bearing upon the best interests of the children mandate a particular result: C.(C.) v. B.(L.), 1995 CarswellNfld 79, at para. 85; S.(E.) v. M.(D.), supra, at para. 79. Thus a finding, on the burden of proof applicable to admissible evidence, that it has not been established that sexual abuse in the past did occur, does not shelve the issue of abuse. The court must go on and determine whether, on the totality of all admissible evidence, there is a real or substantial risk of future harm to the children resulting from potential sexual abuse even though it has not been proven in the past to the level required by the applicable standard of proof: C.(C.) v. B.(L.), supra, at para. 87.
70Further, it is the task of the court to consider the evidence as to the abuse, within the context of all circumstances, and to determine whether, on a balance of probabilities, unrestricted access would create a significant or substantial risk of future physical and / or emotional harm to the child: S.(E.) v. M.(D.), supra, at para. 84.
ANALYSIS OF CUSTODY AND ACCESS
71It bears repeating that this court’s primary objective in custody and access cases is to determine what is in the child’s best interest. In this case, the court not only has two loving parents proffering evidence and very detailed plans, but two OCL reports, information from various collaterals sources such as CAS, the police and CHEO, which form the over 100 exhibits filed during the course of the trial.
72The court notes the plethora of issues taken by the Mother regarding the OCL investigation and report penned by Mr. Filleul. The Court accepts that there should have been a bilingual investigator appointed in order to speak with the Mother’s family, and the Clinical Investigator failed to keep the child’s daycare information confidential despite the Mother’s request. He failed to place any importance on the allegations of domestic violence. Mr. Filleul also relied on the Father’s polygraph test results, which cannot be considered as evidence in this trial. These frailties affect the strength of his report.
73While neither parent filed a dispute to Ms. Parker’s report. However, it was clear that the Mother did not agree with shared parenting, and argued that Ms. Parker used Mr. Filleul’s report as a starting point from which to conduct her investigation. The Father contented that joint custody was the superior recommendation, not sole custody to the Mother. Despite the arguments advanced by the parties, based on Ms. Parker’s testimony, the court finds that Mr. Filleul’s report was not the starting point of her recommendations. Further, while she too considered the results of the Father’s polygraph test, she was able to conclude that it had not influenced her decision. Finally, it was clear Ms. Parker had turned her mind to the distance between both parent’s home, and the time the child would spend travelling based on her shared custody recommendation.
74The court finds that the credentials of the investigators, their experience, background and abilities were not undermined in any significant fashion. Although there were weaknesses in both OCL reports, such as their consideration of the polygraph evidence, these weaknesses do not completely undermine their weight.
75The court is mindful that the OCL reports are recommendations that provide first-hand information which deserves serious consideration, but are not binding. The court must determine the best interest of the child on all of the evidence and the appropriate legal principles, and not abandon that decision to an assessor: Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, at para’s 43 and 67.
76There is no doubt that both parents love L.D. immensely. Both feel that they know what is in her best interest, and present plans that they each propose will best address her needs.
77For the ensuing reasons, the court finds it is in the child’s best interest that the Mother have sole custody of the child:
a. The uncontested assertion that the Mother was the primary caregiver prior to separation.
b. In its most recent report, the OCL recommends sole custody to the Mother.
c. The Father consents an order based on the OCL recommendations.
d. The court finds that the parents exhibit a high level of conflict with each other. For instance:
i. The Father’s assertion was that the Mother failed continuously to put the child’s needs first. He took issue with the clothing that the child wore, saying it was not appropriate for the temperature, and even threatened to call CAS due to same. He contended that threatening to call CAS was not a threat, he would take action and call whoever needed to know as this was very important for any parent. He denied that it was an attack on the Mother’s parenting abilities, and stated “I am her Father, she forgets this. I am her Father, make her wear nice and appropriate clothes”.
ii. The Father texted the Mother, threatening to call the police should he not receive his weekly update about the child as it was three hours late. He denied the text messaged being a threat, and denied there being any conflict between the parties. He indicated that the Mother was lying to make the court believe there was conflict. Then he stated that as a Father, he had a duty to report if something was outside of normal. The court believes the Father felt it would be appropriate to call police should the Mother be late in providing a weekly update.
e. The court finds that the Mother has established, on a balance of probabilities, that a power imbalance existed in the parties’ relationship. For instance, the court found it very telling when the Father spontaneously declared that he had “lost his power”. In the circumstances, it is this court’s view that an order for joint custody would invite the power imbalance to regenerate and would increase the risk to the child of being exposed to domestic conflict.
f. The guidelines set out for joint custody in Kaplanis v. Kaplanis, supra, have not be established. There was insufficient evidence to demonstrate a history of cooperation between the parties, there was no agreement to a joint custody order, and the court is not persuaded that a joint custody order is appropriate or necessary in order to preserve the Father’s relationship with the child.
78The court however finds it is in the child’s best interest that the Father have access to information.
79The court finds it is appropriate that the Mother consult with the Father regarding major decisions, and keep him advised of all areas of the child’s life. The court is not prepared to order that failure to do so would constitute a material change in circumstance as it is felt that this will simply create more conflict between the parties.
80The parties’ evidence differs regarding the delay in access commencing following separation. The evidence establishes that the Mother offered supervised access in February, 2015. Further, in March, 2015 Master MacLeod (as he then was) ordered interim supervised access, and on April 23, 2015 Justice Minnema again ordered supervised access. Ultimately, it took until July 2015, for the Father to see the child as he failed to put access with L.D. before his own need to control the situation. Even then, the Father wanted access on his own terms, and despite court orders that access should occur at the Ottawa Supervised Access Program, he organized same to occur at the Hawkesbury Centre York Centre.
81Since September, 2015, the Father’s access has been two hours every Saturday, and four hours every other Sunday, with exchanges at the Supervised Access Program.
82Throughout, the Father demonstrated a compulsion to control the process, for instance:
a. When and where supervised access would occur.
b. Failure to comply with orders for disclosure with until absolutely necessary, some on the morning of trial (i.e.: un-redacted immigration file).
c. While the Father criticized the Mother for failing to provide the OCL her address, he also failed to disclose same to the Mother and her counsel, taking a ‘tit for tat’ approach.
83The evidence supports the conclusion that the Father is a controlling individual. Everything had to be on his terms or not at all. The difficulty is that when parents are raising a child, it cannot be all or nothing. Compromises and concessions need to be made in the child’s best interest, and not the parent’s.
84In assessing what is in the child’s best interest, section 16 of the D.A., including the principle of maximum contact, as well as the following considerations as set out in section 24 of the CLRA are relevant:
(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
85The evidence shows:
a. L. has a positive, loving relationship with both of her parents. Both OCL, who were independent collaterals, described the relationship between the Father and the child as a positive one, filled with reciprocal affection between them. D.F. was observed to be attentive, engaged, and active with the child. Both OCL supported an expanded relationship between L. and her Father. The Mother and child were also described as having a positive relationship.
b. Neither OCL interviewed the child. Therefore, L.s’ views and preferences cannot reasonably be ascertained.
c. L. has been in the Mother’s primary care since separation. She has also exercised regular and consistent access with her Father since July 2015.
d. Both parents have demonstrated the ability, willingness and desire to provide the child with guidance and education, and the necessaries of life. There was no evidence that the child had any special needs.
e. Both parties have presented viable plans for the child’s care and upbringing.
f. Both proposed family units involve only the parent and child.
g. The court questions the ability of both parents to act as a parent. Examples of concerning behaviour include:
i. The Father’s critical view of the Mother’s choices of clothing for L., which led him to threaten to report the Mother to CAS. He thought that it was not fair to the child that she was not wearing nice clothing, and that the Mother forgets that he is the child’s Father.
ii. Despite that the allegations that the Father abused the child were not verified by CAS, that no charges were laid, that CHEO could not make any conclusive determinations, and that OCL recommended unsupervised access to the Father, the Mother’s position on access was a significant step back from that which the child currently enjoys. The Mother appeared unwilling or incapable of accepting the conclusions reached by any independent investigators.
h. Both parents are L.’s biological parents.
86In considering s. 24(3) and 24(4) CLRA, the court has reflected on the allegations of domestic violence and abuse advanced by the Mother. Despite the Father’s unequivocal denials, the court is persuaded, on a balance of probabilities, that there was domestic violence and abuse from the Father toward the Mother during the course of their relationship.
87Conversely, on a balance of probabilities, the court is not persuaded that the Father abused the child. However, this does not equate to there being no risk of harm to the child of sexual or physical abuse.
88Moreover, despite the Father’s assertion that all of the Mother’s actions, including the allegations of abuse, were malicious attempts to terminate his relationship with L., and despite delay in seeking medical attention, the court is not persuaded that the Mother’s motives were out of spite. This court finds that the Mother took the necessary steps to protect the child.
89The Mother requested that the Father have limited supervised access. The onus is on her to prove that restrictions are in the best interest of the child. The Mother suggested that the unusual or exceptional circumstances were met given the Father’s lies to Immigration Canada and to the court, risk of harm to the child, and the risk that the Father abscond with the child.
90The best interests of the child analysis involves a thorough review of all the benefits and risks to the child of a proposed course of action. As set out in Bates v. Bates, supra, allegations that the Father abused the child are a very significant factor. It may be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent: see Bates v. Bates, at para. 139, from Young v. Young, supra.
91In assessing what is in L.D.’s best interest, as directed in V.S.J. v. L.J.G., supra, the court weighed and balanced numerous factors:
a. The maximum contact principle.
b. The right of a child to know and have a relationship with each parent.
c. A limitation of a consideration of parental conduct to that conduct which impacts on the child.
d. The risk of harm: emotional, physical and sexual.
e. The nature of the relationship between the parents and its impact on the child.
f. The nature of the relationship and attachment between the access parent and the child.
g. The commitment of the access parent to the child.
92In concluding that there is a low risk of harm, the court has considered the ensuing:
a. The first allegation was that the Father sexually abused the child sometime in December, 2014. The allegation was not verified by CAS, and charges were not laid against the Father.
b. Since September, 2015, the Father has been enjoying unsupervised visits with the child.
c. Ever since the Father started having unsupervised access, there was one allegation of physical abuse and one allegation of sexual abuse by the Father toward the child, both advanced in May, 2016. The allegations were not verified by CAS, and charges were not laid against the Father.
d. D.F. was found to be credible by CAS.
e. CHEO was unable to conclude determinatively whether or not the sexual abuse had occurred.
f. The Mother was cautioned by the Society against making any further allegations against the Father.
g. The nature and timing of the allegations.
h. There was no evidence of D.F. ever being convicted of a criminal offence.
i. The evidence presented regarding D.F.’s past in Ethiopia where he was a school monitor, or that he suffered abuse while residing there was denied, and was not sufficiently established to be pertinent.
j. Both the OCL and CAS workers noted a positive relationship between the child and the Father.
k. The credibility of all of the witnesses.
l. Both OCL reports recommended that D.F.’s access with the child be substantially increased.
m. There was insufficient independent evidence to establish, that from the child’s perspective, the access exchanges were not proceeding smoothly.
n. The Father’s conduct, viewed objectively.
93The court is cognizant that the Father believed the Mother moved to her current location out of malice. This was not thought the be the case by OCL Ms. Parker, and the court is not convinced of same, particularly given the Father similarly failed to advise the Mother of his change of address.
94In the circumstances, based on the totality of the evidence, the court does not find that the Mother has met her onus in persuading the court that supervision of access is required.
95The court is also not satisfied that restrictions on the child’s access to the Maternal Grandmother are warranted.
96The court finds that it is in the child’s best interest to have frequent and regular access with her Father. However, L. should continue to have a stable home environment, which has been present in her Mother’s home since separation.
97Having considered the legislation, the case law, the OCL reports, and after a careful review of all of the evidence, as well as: the level of conflict between the parties, the prior domestic violence, the continued control issues exhibited by the Father, the lack of trust between the parties, and the distance between their homes, the court is not persuaded that a shared parenting regime is in this child’s best interest.
98Due to the control issues exhibited by the Father, as well as the history of domestic violence, the court finds it would be beneficial that he attend counselling, to include a component addressing anger management.
99Further, in an effort to try to mitigate any future conflict, a detailed access regime between the child and the Father is required, as set out in the disposition section below.
ISSUE 5: FLIGHT RISK
100D.C.’s concern regarding the Father being a flight risk was based on a number of issues including:
a. D.C. asserted that D.F. will do whatever he wants, whenever he wants, such as when and where supervised access commenced.
b. D.C. does not believe that D.F. will follow a court order, as he has failed to abide by orders in the past, such as failing to provide disclosure.
c. D.F. has made misrepresentations to Immigration Canada about his parentage and false marriage, which could lead to his deportation.
d. D.F. has the ability to leave the country as D.C. believed he had accumulated quite a significant amount of money, particularly as his income was approximately $120,000.00 per annum.
e. He has a home with no equity, and a mortgage greater than the value of the home.
f. There is no agreement with Ethiopia to return a child if he absconds with L.D.
g. There is no exit control in Canada.
h. D.C. suggested that D.F. was a permanent resident in Ethiopia and therefore it was easy for him to travel.
i. D.F. has a company in Ethiopia, and prior to separation he intended to go there for a year. The plan that had been discussed between the parties was for the Father to go there alone, while the Mother stayed in Canada to care for the child. In December 2014, the Father was still talking about it.
j. The Father’s family resides in Ethiopia.
101D.F. denied being a flight risk as Canada was his home. He has resided in Canada for about 20 years. He has full time employment that he loves, friends, and soccer here. He says that D.C. is a flight risk.
102D.F. would like authorization to travel with L., including outside of Canada, but is prepared to provide the Mother with the travel details sufficiently in advance. She would have the same obligation.
103The financial evidence provided was not insufficiently persuasive to establish that D.F. has accumulated a significant amount of money.
104The Father has been having unsupervised visits with L. since September, 2015. There was no evidence presented to the court about the Father attempting to leave with L. in the past 2.5 years of unsupervised visits.
105After weighing all of the evidence, the court is not persuaded that the Father is a flight risk.
106However, given the serious repercussions to the child should the Father decide to abscond with her, and to mitigate risk to the child, the court finds it is appropriate to make the restrictions on the Father’s ability to leave the country with L., as set out in the disposition section.
107The court does not find that similar restrictions on the Mother are necessary.
ISSUE 6: RESTRAINING ORDER
108Sections 46 FLA and 35 CLRA both address restraining orders. Though they have very similar language, section 46(2) FLA clarifies against whom a restraining order can be made, and includes a former spouse.
109Section 46(1) FLA and 35(1) CLRA state that on application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
110A restraining order may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate: sections 46(3) FLA and 35(2) CLRA.
111As set out by Justice Dunn in Khara v. McManus, 2007 ONC 223, at paragraph 33:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
112Justice Dunn then stated that past acts or words of harassment must have some current relationship with the present fears. It may not be enough that the party was violent in the past if the current relationship is not conflicted. The court will look closely at the intervening period between the past harassment and what is perceived to be present concerns.
113In V.S.J. v. L.J.G., supra, Justice Blishen found that a restraining order was appropriate despite there had not been incidents of direct harassment of the Mother for some time, based on the background of verbal, emotional and some physical abuse, amongst other factors, including the stress to the Mother.
114A restraining order can create a settled and restrained atmosphere for the Mother to continue caring for the child and to avoid confrontation between the parties. (see Fuda v. Fuda, 2011 ONSC 154 at para. 35)
115In the case at bar, court has already found there to be a background of domestic violence and abuse from the Father toward the Mother. The court has considered that these past acts, along with the Father’s continued need for control, and the continually conflictual relationship. The Mother’s evidence was that the Father has not attended her place of work since separation. Apart from the January 29, 2015 courthouse event, and once parking behind her car at FSO, there has been no face to face contact with the Father since separation. There are staggered times for supervised access exchanges.
116In the circumstances, though there has been some time since the last occurrence of harassment or violence, given the ongoing level of conflict present in the relationship, the court finds that a restraining order is appropriate.
117D.F., born […], 1984, shall not directly or indirectly contact or communicate with the Respondent Mother by telephone, text message, email and any form of internet communications or chat, except Our Family Wizard as per the terms of my order of today’s date, and except: as set out in my order of today’ date regarding access to L.D., or further family court order, or in the limited circumstances of an emergency relating to L.D. while L.D. is in the Applicant Father’s care when a phone call may be placed.
118The restraining order shall remain in effect until further order of this court.
ISSUE 7: POLICE ENFORCEMENT
119The Mother requested a police enforcement clause form part of the final order. The Father disputed the request.
120Section 36 CLRA addresses when a police enforcement clause may form part of an order.
121The test is whether the court is satisfied that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child. If satisfied, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be. R.S.O. 1990, c. C.12, s. 36 (1). The CLRA permits provisions be imposed in an Order such that the police force having jurisdiction where the child may be to apprehend and deliver to the child to one party.
122The evidence at trial was that the Father has been exercising regular unsupervised access with the child since September 2015. There was no evidence that the Father has refused to return the child to the Mother at the end of his access visits.
123While the court is mindful that the Mother fears that the child will not be returned her, the court is not persuaded that reasonable and probable grounds have been established to permit such an order. Consequently, the Mother’s request is denied.
DISPOSITION
124Both counsel were very helpful in providing draft orders for the court’s consideration. Some of their terms are incorporated into the final order.
125The terms of the final order are as follows:
1The Respondent Mother: D.C. shall have sole custody of the child: L.D., born […], 2013.
2The Mother shall consult with the Father on major decisions regarding the child’s well-being, including her health, education and religion. The mother shall involve the Father in all areas of the child’s life and keep him informed of any appointments and changes of circumstances.
3The Father shall have access to the child: L.D., as follows:
a. For three week-ends, commencing July 28, 2018 the Father shall have the child on Saturdays from 9:30 a.m. to 4:00 p.m.;
b. For the next three week-ends, commencing August 18th, 2018, on Saturdays from 9:30 a.m. to 4:00 p.m., and from Sundays at 9:30 a.m. to 6:15 p.m.;
c. For the following four week-ends, commencing September 8th, 2018 week-end, from Saturday at 9:30 a.m. to Sunday at 4:00 p.m.;
d. Commencing October 6, 2018, and every second week-end thereafter, the Father shall have the child from Friday at 6:00 p.m. until Sunday at 4:00 p.m.;
e. Commencing October 10th, 2018, and every Wednesday thereafter, from after school or 3:00 p.m. until 6:00 p.m. Exceptionally, the Father shall pick up the child at the daycare, and return the child to the daycare parking lot. The Father is to ensure that L.D.’s homework is completed during this access time;
f. Unless otherwise specified, exchanges shall occur at FSO Access Centre in Ottawa. Should the FSO centre be closed, then access exchanges shall take place in the parking lot of the Ottawa Police Services Station located at 474 Elgin Street, Ottawa, Ontario;
g. Commencing in 2019, both parents shall have two non-consecutive weeks of uninterrupted access in the summer. Dates shall be chosen by the Mother in odd-numbered years by May 1st, and chosen by the Father by May 15th. In even-numbered years, the dates shall be chosen by the Father by May 1st, and by the Mother by May 15th.
4The following holiday access schedule shall override regularly scheduled access:
a. The Father shall have L.D. on Family day in even-numbered years commencing in 2020, from 9:00 a.m. to 4:00 p.m. The Mother shall have L.D. on Family day in odd-numbered years, commencing in 2019, from 9:00 a.m. to 4:00 p.m.
b. If the Mother does not have L.D. for that weekend, she shall have her on Mother's Day from 9:00 a.m. to 5:00 p.m.
c. If the Father does not have L.D. for that weekend, he shall have her on Father's Day from 9:00 a.m. to 5:00 p.m.
d. The Father shall have L.D. on Easter weekend in even-numbered years from Thursday evening until Sunday at 12:00 p.m. noon and for the Mother to have L.D. thereafter; in odd-numbered years, the Mother shall have L.D. on Easter weekend in from Thursday evening until Sunday at 12:00 p.m. noon and the Father shall have L.D. until Monday at 5:00 p.m.
e. The Father shall have L.D. on Victoria Day weekend in odd-numbered years from Friday at 6:00 p.m. until Sunday at 4:00 p.m. In even-numbered years, the Mother shall have L.D. on Victoria Day week-end for the same times.
f. The Father shall have L.D. on Canada Day in odd-numbered years from 9:00 a.m. to 4:00 p.m., and the Mother shall have the child in even-numbered years.
g. The Father shall have L.D. on Civic holiday in even-numbered years from 9:00 a.m. to 4:00 p.m., and the Mother shall have the child in odd-numbered years.
h. The Father shall have L.D. on Labour Day in odd-numbered years from 9:00 a.m. to 4:00 p.m., and the Mother shall have the child in even-numbered years.
i. The Father shall have L.D. on Halloween in even-numbered years from 3:30p.m. (or after school) to 7:00 p.m., and the Mother shall have the child on odd-numbered years. The parent who has L.D. for Halloween will be responsible for her costume.
j. The Father shall have L.D. on alternating Thanksgiving weekend. L.D. will reside with the Father in even-numbered years from Friday at 6:00p.m. until Sunday at 4:00p.m., and on numbered years, the child will be with the Mother for these dates.
k. The Father shall have L.D. on Christmas in odd-numbered years from Christmas Eve at 4:00 p.m. until Christmas day at 1:00 p.m. The same shall apply for New Year's Eve. In even-numbered years, the child shall be with the Mother from Christmas Eve at 4:00 p.m. until Christmas day at 1:00 p.m. The same shall apply for New Year's Eve.
5The parties shall be entitled to direct access to L.D.'s daycare providers/teachers, extracurricular leaders, health care providers, counsellors, and other such persons involved in providing L.D. with care and guidance.
6The parties shall be entitled to direct access to L.D.'s school, extracurricular, and medical records. Consequently, the Mother shall notify the Father with L.D.'s school, daycare and medical information and shall execute all releases of information to help facilitate such access.
7The Mother shall inform the Father in advance of making major decisions for L.D. with respect to medical and dental care, and shall keep him advised of all routine appointments and their outcomes. The Father may make appointments to meet with collaterals, to also obtain updates on L.D.
8The parties are to seek medical care for L.D., as and when required and while in a care-giving role. Each parent will inform the other, via email, of the nature of the medical care sought and the required treatment or follow up as soon as possible.
9There shall be no change to the child's name without a written consent or a court order.
10Neither parent shall speak ill of the other parent while in a care giving role and shall not permit third parties to make negative comments about the other parent in the presence of L.D.
11The Mother shall be allowed to travel with the child outside of Canada without the Father's signature or consent.
12Specifically, D.C. may travel freely with L.D. outside of Canada, without the Father's consent up to four weeks per year for the purpose of a vacation.
13The Mother shall be entitled to obtain a passport for the child without the Father's signature or consent.
14The Respondent Mother shall retain L.D.’s passport except as agreed upon between the parties or as ordered by this court.
15D.F. shall surrender all of his passports (Canadian, Ethiopian and any others he may possess) and any Canadian or Ethiopian travel documents he has for himself or for L.D. immediately to D.C. or her counsel, at her choosing, when he is in Canada. He shall not attempt to obtain any replacement passports or travel documents of any kind from any jurisdiction for himself or for L.D. D.F. may apply to renew his Canadian passport up to 6 months before it expires. Both parents shall provide a copy of this Order to the embassies and consular offices of Canada and Ethiopia.
16In the event D.F. wishes to personally travel outside of the country alone, he shall advise D.C. at least one month in advance and he shall be permitted to obtain his personal passport and/or travel documents from D.C. or her counsel, at D.C.’s choosing, two days prior to his proposed travel dates. He shall continue to surrender his passport and travel documents (Canadian, Ethiopian and any others he may possess) for himself immediately whenever he returns to Canada.
17Within 30 days of this Order, D.F. shall provide written confirmation from the appropriate authorities in Ethiopia that no passports, citizenship or residency documents have been issued in L.D.'s name.
18Within 30 days of this Order, D.F. and D.C. shall provide a written notice to the Ethiopian Embassy not to issue a passport for L.D. Such notice is to include a certified copy of this Order. The Applicant and the Respondent shall also provide a copy of the notice to Foreign Affairs, Trade and Development Canada Consular Services and to each other.
19Neither D.F. nor anyone on his behalf shall remove L.D. from this jurisdiction without an order from this court. This does not include D.F.
20The parties shall enroll on and use Our Family Wizard as their sole means of communication (barring an emergency when cell phone may be used) on which they will share information about L.D. to allow each of them to meet her ongoing physical, emotional or cognitive needs. More specifically, each parent will communicate to the other in a polite, respectful, and business-like manner regarding items such as:
a. Any changes to L.D.’s ongoing daily routine during an access period.
b. Any health, behavioural or other problems a parent encounters with L.D. during the time she is in his/her care.
c. Any illness L.D. experiences while in the care of the relevant parent and details relating to any medication given to her and the time at which it was given as well as information about future doses of medication that may be required by her during an access period;
d. Any significant injury that L.D. suffered from while in the care of the relevant parent.
e. L.D.'s developmental milestones.
f. New approaches to specific parenting issues being implemented by a parent.
g. New foods that are introduced by either parent into L.D.’s diet.
h. Any requests for changes to the access schedule.
i. The identity of any third party who is regularly in contact with L.D.
21Each party will check their Our Family Wizard account on a regular basis and respond to messages that reasonably require a response from the other in a prompt manner, unless the party is vacationing. If a party requires time to consider a message from the other before responding to it, he/she will acknowledge receipt of the message and let the other party know when a response will be forthcoming.
22The communications on Our Family Wizard will be accessible for the purpose of any future court proceeding between the parties relating to L.D.
23The Father shall provide ongoing disclosure about where he lives (address, telephone number) and contact information (email, cell phone number, home phone number) within five days of any change.
24Neither parent will discuss with L.D. (or with any person in her presence) any issue which is the subject of any court proceeding or the subject of conflict between the parents.
25It is strongly recommended that the Father attend counselling, to include a component addressing anger management.
26D.F., born […], 1984, shall not directly or indirectly contact or communicate with the Respondent Mother by telephone, text message, email and any form of internet communications or chat, except Our Family Wizard as per the terms of my order of today’s date, and except: as set out in my order of today’ date regarding access to L.D., or further family court order, or in the limited circumstances of an emergency relating to L.D. while L.D. is in the Applicant Father’s care when a phone call may be placed.
27The restraining order shall remain in effect until further order of this court.
COSTS
111Should counsel be unable to agree on costs, submissions shall be provided to the court in writing and electronically. They should not exceed five pages in length plus attached bills of costs and offers to settle. The Respondent shall deliver her submissions within 20 days of this decision. The Applicant shall deliver his submissions by within 20 days of receiving the costs submissions from the Respondent. The Respondent may exercise a brief right of reply within 15 days of receiving the Applicant’s submissions.
Madam Justice Hélène C. Desormeau
Released: July 20, 2018
D.F. v D.C., 2018 ONSC 4481
COURT FILE NO.: 15-233
DATE: 2018/07/20
ONTARIO
SUPERIOR COURT OF JUSTICE
D. F.
– and –
D. C.
JUDGMENT
Madam Justice Hélène C. Desormeau
Released: 2018/07/20