Court File and Parties

COURT FILE NO.: FS-16-16938-01 DATE: 20190612 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Chadwick, Applicant AND: Deanna Marie Chadwick, Respondent

BEFORE: Howard J.

COUNSEL: Jennifer Richards, for the Applicant J.J. Avery, for the Respondent

HEARD: June 7, 2019

Endorsement

Overview

[1] There are two motions before the court [Continuing Record, Tabs 27 and 30].

[2] The applicant father brings a motion [T27], seeking an order for a variety of relief including confirmation of the interim parenting arrangements for the two children of the marriage, being Tyler James Chadwick, born January 15, 2011 (now 8 years of age), and Emma Marie Leah Chadwick, born July 10, 2013 (now 5 years).

[3] The respondent mother brings a motion [T30] seeking an order striking out the affidavit of the applicant father sworn May 10, 2019 [T29], including, in particular, the transcript of a telephone conversation the applicant father had with the maternal grandmother.

[4] The motions are brought within the context of the applicant father’s motion to change the final order of King J. dated June 15, 2017, which was made on consent and provided that the parties should have joint custody of the two children and residence would be shared on, essentially, a week-about basis.

[5] The evidence indicates that the Windsor-Essex Children’s Aid Society (“WECAS”) has been involved with this family since approximately July 2016. It is common ground that the respondent mother has struggled in the past to deal with substance abuse issues and is continuing to address same.

[6] The applicant father had previously brought an urgent motion to suspend the shared custody arrangements under the order of King J. dated June 15, 2017, and to impose supervised access of the respondent mother to the children at certain specified times. On July 31, 2018, on the first return of the father’s motion, Pomerance J. made an order that all access by the respondent mother must be supervised at all times by the respondent’s mother (i.e., the children’s maternal grandmother), Ms. Denise Garant, but that the respondent could continue to have “access on a 50/50 basis, so long as the grandmother is physically present at all times during access visits.” The applicant father’s motion was ultimately dismissed on October 18, 2018, by Aston J.

[7] It would appear to be common ground that a few short weeks after the dismissal of the applicant’s urgent motion, the respondent mother was arrested and charged with possession of a controlled substance and possession for the purpose of trafficking. The respondent mother clarifies that there are only two counts outstanding and she maintains her innocence in respect of both.

[8] The evidence indicates that on or about November 9, 2018, the applicant father notified the WECAS of the new criminal charges and he was advised that the Society had implemented a safety plan to address the risks posed to the children, pursuant to which the respondent mother’s time with the children was to be fully supervised by the grandmother Ms. Garant and no visitors are to be present at the home when the children are present.

[9] It is also common ground that in or about mid-November 2018, Ms. Garant communicated to the parties that she was no longer willing or able to supervise the respondent mother’s time with the children according to the residency schedule set out in the court order, and a new schedule was then implemented. Accordingly, since mid-November, the respondent mother has had the children in her care on alternate weekends from Friday after school until Tuesday morning before school.

[10] The applicant father’s instant motion first came before King J. on May 3, 2019. Counsel for the respondent mother sought and obtained an adjournment of the motion, and terms were imposed. The motion was adjourned to May 24, 2019, and, inter alia, the court granted leave to the parties pursuant to rule 14(17) of the Family Law Rules [1] to call viva voce evidence on the return of the motion.

[11] The applicant father’s motion then returned to court on May 24, 2019, and was heard by Bondy J., who indicated in his endorsement that the motion was not ready to be heard that day because, inter alia, the respondent mother had not filed her responding affidavit (although she did bring it with her to court that day).

[12] However, consistent with the endorsement of King J. of May 3rd, the court did hear the viva voce evidence of Ms. Stacey Anderson, the WECAS Worker who has carriage of the family’s file. In his endorsement of May 24th, Bondy J. noted that:

a. Ms. Anderson has concerns if the safety plan currently in place regarding supervised access is not followed. b. Ms. Anderson also has concerns if the existing pattern of access were changed pending the hearing of the motion.

[13] In his endorsement of May 24, 2019, Bondy J. also dealt with concerns regarding the affidavit of the applicant father sworn May 10, 2019 [T29], which attaches as an exhibit a transcript of a telephone conversation that the applicant father allegedly had with the grandmother Ms. Garant on April 17, 2019. The court expressed its concern that the telephone recording had not been properly authenticated according to the standards expressed in, for example, R. v. Giroux, 2013 NWTTC 4 [2], and ordered that the offending affidavit should be struck out on that basis.

[14] In the result, Bondy J. made the following order:

a. Matter adjourned to June 7, 2019, at 10:00 a.m. b. The respondent’s access to be alternating weekends from Friday after school to Tuesday morning before school until further order of the court, such access to commence Friday, June 7, 2019, because the supervisor is currently ill. c. The access to be supervised by Ms. Linda Holisek until further order of the court. d. The affidavit of the applicant father sworn May 10, 2019 [T29] struck without prejudice to the right to file a further and better affidavit. e. No order as to costs for today.

[15] The motions then came before me on June 7, 2019. In support of their motions, the parties relied upon, and I reviewed, inter alia, the affidavit of the applicant father sworn April 29, 2019 [T28], the responding affidavit of the respondent mother sworn May 30, 2019 [T31], the affidavit of the applicant father sworn May 30, 2019 [T32], but only to the extent described below, and the applicant father’s reply affidavit sworn June 3, 2019 [T33].

[16] At the hearing on June 7th, I also heard the viva voce evidence of Ms. Stacey Anderson, the WECAS Worker, pursuant to leave granted by King J. on May 3rd, and Ms. Anderson testified in examination-in-chief, cross-examination, and re-examination.

Analysis

The respondent mother’s motion to strike the evidence of the recorded telephone conversation [T30]

[17] As contemplated by the endorsement of Bondy J. dated May 24th, striking out the affidavit of the applicant father sworn May 10, 2019 [T29], the applicant filed a further and better affidavit sworn May 30, 2019 [T32], in order to address the authentication concerns of the court. The May 30th affidavit attaches, again, a transcript of a telephone conversation between the applicant father and the grandmother Ms. Garant that allegedly occurred on April 17, 2019.

[18] I have read the contents of the eight paragraphs contained in the applicant’s May 30th affidavit, but I have not read the transcript of the alleged telephone conversation. In my view, given the objection of the respondent mother to the transcript, and given my ultimate conclusion on the issue, it was unnecessary to read the impugned transcript.

[19] The applicant father’s affidavit of May 30th makes repeated reference to paras. 18, 19, and 20 of his earlier affidavit sworn April 29, 2019 [T28], and, in particular, a conversation that he allegedly had with Ms. Garant on April 17, 2019. The gist of the conversation is described generally in paras. 18-20 of his April 29th affidavit; a transcript of the recording of the conversation is attached as an exhibit to his May 30th affidavit. Hence, one may gather the gist of the April 17th telephone conversation by reviewing the earlier April 29th affidavit, rather than reading the transcript attached to the May 30th affidavit.

[20] The evidence of the applicant father as set out in his April 29th affidavit is that, put generally, on April 16, 2019, he had a conversation in person with the grandmother Ms. Garant at the children’s school. At that time, Ms. Garant advised the applicant father that she had gone through the respondent mother’s cell phone that morning and had seen various text messages between the respondent mother and certain third persons, in which the respondent mother appeared to be making arrangements to sell narcotics, and that some of these transactions were arranged to occur in the driveway of the respondent mother’s home, at night, while Ms. Garant and the children were sleeping at the home.

[21] The evidence of the applicant father is that he subsequently telephoned Ms. Garant on April 17, 2019, so that they could discuss further the grandmother’s concerns that were relayed to him the previous morning. The applicant father recorded that conversation with Ms. Garant. There is no evidence before the court that the maternal grandmother either consented to the recording or even knew that the applicant was recording their conversation.

[22] The grandmother Ms. Garant is not a party to this proceeding.

[23] The evidence of the applicant father, as set out in para. 19 of his April 29th affidavit, is that during his conversation with Ms. Garant on April 17th, she seemed “to resile from her earlier assertions that [the respondent mother] was dealing narcotics in the driveway when the children were asleep in her home.” However, the applicant father deposes that Ms. Garant did confirm, inter alia, that the respondent mother is dealing drugs.

[24] The respondent mother denies that she is dealing drugs.

[25] The respondent mother vehemently objects to the introduction into evidence of the transcript of the alleged telephone conversation between the applicant father and Ms. Garant on the grounds of, inter alia, public policy considerations and its inherent unreliability, to the extent that the critical portions of the transcript are nothing more than hearsay evidence. The respondent mother renews her motion to strike out the affidavit of the applicant father of May 30th.

[26] I would allow the respondent mother’s motion and strike out the impugned transcript of the telephone conversation between the applicant father and the grandmother. I do so for at least three reasons.

[27] First, I agree with counsel for the applicant that there are public policy considerations that weigh against admitting the impugned evidence. I have previously commented [3] on the practice of making surreptitious recordings by parties in family law cases – which practice has often been to referred as “odious” and “repugnant” by the courts – and have expressed my agreement with the observations of Sherr J. in Hameed v. Hameed that the surreptitious recording of telephone conversations by parties in family law cases should be strongly discouraged by the courts.

[28] Such practices offend the privacy interests of the individual and the family, and are the type of “odious practice” that the courts typically seek to discourage in family law proceedings because they are destructive of the maintenance, restructuring, and encouragement of constructive family relationships. [4]

[29] In Hameed, the father included transcripts and audiotapes of telephone calls that he had surreptitiously recorded with the mother and of a telephone conversation that he had with a third party who had supervised his access. He filed this material to argue that the mother had lied in her material when she said that she was not interested in reconciling with him and that the access supervisor did not agree with how the mother described the father’s parenting skills in her affidavit. That evidence was ruled inadmissible by Sherr J., who commented as follows:

Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the court work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process. …

The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. [5]

[30] In Veljanovski v. Veljanovski, 2016 ONSC 2047, I followed and applied the dictum of Sherr J. in Hameed v. Hameed, in a situation where, even after the court had previously warned the parties to stop recording one another, the mother hired private investigators in order to verify the father’s workplace shift schedule and, thus, his alleged unavailability to parent the children. The surveillance took the form of photographs and video recordings, primarily of the father but also incidentally of the children, their grandmother, and their aunt, as well as the installation of a GPS tracking device on the father’s car.

[31] In the result, I held that in view of the strong public policy reasons disapproving of surveillance practices in family law matters, I was not convinced that the applicant mother in Veljanovski had established a sufficiently compelling reason to have the fruits of the surveillance admitted into evidence. Accordingly, I allowed the respondent father’s motion to exclude the surveillance evidence and struck out various paragraphs of the applicant mother’s affidavit relating to the surveillance evidence. [6]

[32] Further, given the mother’s resort to what I described as the “odious” and “repugnant” practice of video surveillance after the court had already directed the parties to stop recording each other, I held that the mother’s conduct was a “significant factor” in this regard in my subsequent decision to deny the mother her costs of the motion even though she was the successful party on the motion. [7]

[33] Second, the impugned transcript of the applicant’s conversation with the maternal grandmother implicates the evidence of a third party to the litigation. The maternal grandmother, Ms. Garant, is not a party to the instant proceeding. The courts have generally ruled inadmissible the recordings of third parties.

[34] For example, in Fattali v. Fattali, a father secretly recorded an interview with the children’s pediatrician. The court ruled that such recordings were inadmissible, and Vogelsang J. offered the following explanation:

To better his case, he attended on the paediatrician … to discuss the administration of the drug to Simon. He secretly taped the interview by concealing [a] recorder on his person. His counsel wished the audio tape to form part of the evidence at the motion. In my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of children should not be decided on evidence the product of calculated subterfuge. It does not help the father’s position to be plotting tricks or deceit to advance his cause. [Emphasis added.] [8]

[35] Third, there is merit in the position of the respondent mother that the reliability of the proffered transcript is undermined given that it is comprised of hearsay evidence, if not double-hearsay. Indeed, the evidence offered to the court of the disreputable conduct of the respondent mother, i.e., the alleged trafficking in drugs, is grounded in out-of-court statements allegedly made by the respondent mother to the maternal grandmother (hearsay), which were then relayed by the maternal grandmother to the applicant father (double-hearsay). The hearsay nature of the proffered evidence obviously undermines its probative value.

[36] Again, the respondent mother strenuously objects to the admission of the evidence given its prejudicial impact on her.

[37] In the circumstances, having regard for the admonition in Hameed v. Hameed, I am not satisfied that the applicant father has established compelling reasons why the impaired probative value of the hearsay or double-hearsay evidence of the statements allegedly communicated by the respondent mother to the maternal grandmother and then to the applicant father can be said to outweigh its prejudicial effect, especially given the manner in which it was surreptitiously obtained.

[38] As such, I agree with the submission of counsel for the respondent mother that the statement’s probative value is outweighed by its prejudicial effect.

[39] For all of these reasons, I would exclude the impugned evidence. Specifically, I would order that the transcript of the telephone conversation between the applicant father and the maternal grandmother held on April 17, 2019, being Exhibit “A” to the affidavit of the applicant father sworn May 30, 2019, should be struck out and removed from the Continuing Record.

[40] Before leaving the issue, I note that although Bondy J. made a similar order striking out the entirety of the affidavit of the applicant father sworn May 10, 2019 [T29], that affidavit remains in the Continuing Record. In the circumstances, it is appropriate to give directions to court staff to have that affidavit removed.

The motion to confirm the respondent mother’s access [T27]

[41] The applicant father moves for an order confirming the terms of access that the respondent mother has actually been having with the children since mid-November 2018, i.e., that the respondent mother have the children in her care on alternate weekends from Friday after school until Tuesday morning before school. The applicant father also requests that the order of the court reflect the current safety plan of the WECAS, pursuant to which the respondent mother’s time with the children is to be fully supervised by an adult person approved by the WECAS, and no visitors are to be present at the home when the children are present.

[42] The position of the respondent mother is that the schedule of access of the respondent mother should immediately return to the shared residency arrangements provided by the final order of King J. dated June 15, 2017. On the issue of supervision, I believe it is fair to say that the respondent mother does not contest the issue of supervision for the purposes of the instant motion without prejudice to her ultimate position that there should be no supervision of her time with the children. As Ms. Avery put it, the issue of supervision will be left for a later date.

[43] It is common ground that Ms. Linda Holisek has been approved by the WECAS as an appropriate supervisor, and I understand that Ms. Holisek is prepared to serve (or continue to serve) as the approved supervisor.

[44] It is also common ground that the court may make an interim order varying the terms of the final order of June 15, 2017, [9] if there has been a material change in circumstances.

[45] In my view, it is clear that there has been a material change in circumstances in this case. The reality is that, essentially as a result of the safety plan of the WECAS that requires the respondent mother’s time with the children to be fully supervised, combined with the grandmother Ms. Garant’s decision that she is no longer willing or able to serve as her daughter’s constant supervisor when the children are with their mother, the parents have not been following the shared residency week-about schedule contemplated by the final order of June 2017.

[46] Instead, and the evidence is not disputed on this point, it is clear that since mid-November 2018, the respondent mother has been having the children in her care on alternate weekends from Friday after school until Tuesday morning before school. That has been the de facto status quo for more than half a year going back to mid-November 2018.

[47] I appreciate the respondent mother’s position that she was not the person who was responsible for the decision to change the parenting schedule and she should not be faulted for it. As Ms. Avery put it, the respondent mother has not been “in the driver’s seat.” As I have said, and as the respondent mother’s materials and submissions acknowledge, the driving force behind the current status quo has been the WECAS safety plan and the decisions made by the maternal grandmother.

[48] That said, it is immaterial that the respondent has not been at fault or responsible for the change in the parenting schedule. Considering the matter from the children’s perspective, their de facto reality of parenting time with their mother every other weekend from Friday to Tuesday would remain the same whether or not that schedule might be said to be a product of any misconduct on the part of the respondent or otherwise. Irrespective of the reasons for it, that has been what the children have known now for more than half a year. And half a year is a long time in the eyes of a five-year-old and eight-year-old.

[49] At the same time, it should also be noted that the current parenting arrangements are not the result of the applicant father attempting to create some new status quo simply to gain some tactical advantage for the purposes of the litigation. There is no doubt but that the court will not reward a parent who has unilaterally tried to create a new status quo for the purposes of an interim motion. [10] But this is not one of those cases. The father did not create this situation.

[50] On my view of the evidence, I am satisfied that the current parenting arrangements are in keeping with the best interests of the children. In this regard, I note the circumstances of the younger child, five-year-old Emma. It is common ground that Emma displays some behavioural issues. It is not seriously contested that consistency in schedule is crucial for Emma and that she does not do well when her routine is altered or is made unpredictable. [11]

[51] The evidence of the applicant father is that Emma’s behaviours at home and at school have dramatically improved since the residency arrangements changed in mid-November 2018. The father’s view is that Emma did not do well under the shared residency schedule that existed prior to November 2018.

[52] I am assisted by the evidence of Ms. Anderson, the WECAS Worker, given at the hearing of the motion before me. I would summarize the salient points of Ms. Anderson’s viva voce testimony as follows:

a. The WECAS remains of the view that the respondent mother’s parenting time with the children needs to be fully supervised by an approved person. b. The WECAS remains of the view that its current safety plan continues to be appropriate and necessary. c. In the past, there have been multiple breaches of the safety plan by the respondent mother. d. The WECAS believes that if the respondent mother had unsupervised access, the children would be put at risk. e. The WECAS has approved Ms. Linda Holisek to supervise the respondent mother’s parenting time with the children. f. Ms. Anderson understands that Emma has behavioural issues and receives services from Children’s First. Her understanding of Emma’s situation is that “consistency is really important” and that “a schedule is necessary” to help with Emma “being advised of what is coming next.” g. Ms. Anderson spoke with Emma’s school principal the day before she testified before me, and she understands from the principal that the school has seen an improvement in Emma’s behaviours while at school, and that the last real incident with Emma was in April 2019. She also understands from the principal that Tyler has been doing very well at school and has not been exhibiting negative behaviours. h. In Ms. Anderson’s view, the children appear to be doing well in their current residency arrangement. She believes that Emma’s behavioural issues have improved over the past six months. i. While the position of the WECAS remains that the respondent mother’s parenting time needs to continue to be supervised, the Society does not have a position as to when that supervision should end. Ms. Anderson said that question depends in part on whether the respondent mother continues to make certain choices. The point was pursued in cross-examination, and Ms. Anderson testified that in order for the supervision to end, the respondent mother would need “to stop engaging in criminal activity and associating with people who engage in criminal activity.” j. Ms. Anderson does not have a concern regarding the adequacy of mother’s actual parenting skills. k. Ms. Anderson believes that the respondent mother has generally been compliant with the Society’s safety plans, that it was the maternal grandmother who was non-compliant from time to time, but that the respondent mother also did not report those breaches.

[53] I conclude that the current parenting arrangements, that is, the de facto status quo that the children have known since last November 2018, is serving the children’s best interests and should be preserved. Some of the general reasons why the status quo should be preserved on an interim motion were articulated by J. Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.), as follows:

There is a golden rule which implacably governs motions for interim custody: stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children, the parent having de facto custody should be deprived thereof. On this consideration hangs all other considerations. On motions for interim custody the most important factor in considering the best interests of the child has traditionally been the maintenance of the legal status quo. … By status quo is meant the primary or legal status quo, not a short lived status quo created to gain tactical advantage. [12]

[54] In my view, those reasons apply very aptly to the circumstances of the instant case and, in particular, to the circumstances surrounding Emma. Stability is not only a primary need for children “caught in the throes of matrimonial dispute” but even more so for a child with behavioural needs who, like Emma, needs stability, consistency, and predictability. Both children appear to be doing well in their current residency arrangement. The school principal reports that the school has seen an improvement in Emma’s behaviour at school in recent months and there has been no further episode since April 2019. The WECAS Worker is of the view that Emma’s behavioural issues have improved over the past six months. That view is consistent with, and corroborates, the evidence of the applicant father.

[55] There is no practical way to determine whether the improvements in Emma’s behaviour are merely coincident with or caused by the change in residency arrangements; however, the children are not to be used as variables in some sociological experiment. They are both doing well now, and they are both entitled to some stability, consistency, and predictability in their lives while their parents’ litigation is on-going. More than that, Emma’s circumstances demand it.

[56] In my view, the best interests of the children and, in particular, of Emma are best served by confirming the de facto status quo in an interim order.

[57] That said, having regard for the testimony of Ms. Anderson as to when the Society believes that supervision of the respondent mother’s time with the children may no longer be required, it may well be – one certainly hopes – that the circumstances surrounding the mother may change in the future. Accordingly, it is appropriate to make the interim order on a without prejudice basis.

Costs

[58] I note that both Aston J. in his endorsement of October 18, 2018, and Bondy J. in his endorsement of May 24, 2019, made no order as to costs. Justice Aston held that the motion(s) before him was not an appropriate case for costs.

[59] I would make the same disposition. The respondent mother was successful on her motion to strike out the applicant father’s recording of his telephone conversation with the maternal grandmother. The applicant father was successful on his motion to confirm the existing parenting arrangements. Collectively, success on the two motions was divided.

[60] In the circumstances, both parties should bear their own costs. There shall be no order of costs in favour of either party.

Conclusion

[61] For the reasons set out above, I would make the following orders.

[62] The motion of the respondent mother to strike out the affidavit of the applicant father sworn May 30, 2019 (T32) is allowed in part and, to that end,

a. Exhibit “A” to the affidavit of the applicant father sworn May 30, 2019, found at Tab 32 of the Continuing Record, being the transcript of an audio recording of a telephone conversation between James Chadwick, Denise Garant, and Melissa Marlein, made April 29, 2019, is struck out; b. Court staff are directed to remove the said Exhibit “A” from the Continuing Record; and c. Court staff are directed to prepare a replacement page 2 of the Cumulative Table of Contents of the Continuing Record, as filed in the yellow Endorsement Record, indicating in a notation to Tab 32, that Exhibit “A” to the affidavit of the applicant father sworn May 30, 2019, was struck out and ordered removed from the Continuing Record by order of Howard J. dated June 12, 2019.

[63] Further to the endorsement of Bondy J. dated May 24, 2019, which struck out the affidavit of the applicant father sworn May 10, 2019, in its entirety,

a. Court staff are directed to remove the said affidavit of the applicant father sworn May 10, 2019, in its entirety, from Tab 29 the Continuing Record; b. Court staff are directed to insert a replacement page at Tab 29 of the Continuing Record stating as follows:

The affidavit of the applicant, James Chadwick, sworn May 10, 2019, was ordered to be struck out by the order of Bondy J. dated May 24, 2019, and has been removed from the Continuing Record by direction of Howard J. dated June 12, 2019.

c. Court staff are directed to prepare a replacement page 2 of the Cumulative Table of Contents of the Continuing Record, as filed in the yellow Endorsement Record, indicating in a notation to Tab 29, that the affidavit of the applicant father sworn May 10, 2019, was struck out by the order of Bondy J. dated May 24, 2019, and ordered removed from the Continuing Record by order of Howard J. dated June 12, 2019.

[64] There shall be an interim without prejudice order that:

a. The two children of the marriage, being Tyler James Chadwick, born January 15, 2011, and Emma Marie Leah Chadwick, born July 10, 2013, shall reside with the respondent mother, Deanna Marie Chadwick, on alternate weekends from Friday after school until Tuesday morning before school, provided that, i. The respondent mother’s parenting time with the children shall be fully supervised by Ms. Linda Holisek or by such other adult person approved by the Windsor-Essex Children’s Aid Society as the parties may agree or this court may order. ii. During those periods when the children reside with the respondent mother, there shall be no third-party visitors at the respondent’s home when the children are present. b. The two children shall reside with the applicant father, James Chadwick, at all other times.

[65] There shall be no order as to costs.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard Justice

Date: June 12, 2019

[1] Family Law Rules, O. Reg. 114/99. [2] R. v. Giroux, 2013 NWTTC 4, [2013] 4 W.W.R. 130 (N.T. Terr. Ct.), at para. 23, followed in R. v. Risling, 2015 ABQB 716, 617 A.R. 80, at paras. 112-116. [3] Veljanovski v. Veljanovski, 2016 ONSC 2047, 81 R.F.L. (7th) 190 (S.C.J.), at paras. 37-60. [4] Ibid., at para. 49, citing Brian J. Burke and Margaretta H. Hanna, “Surreptitious Recordings in Family Law: Of ‘Odious and Repugnant Practices,’ ‘Calculated Subterfuges,’ ‘Tricks and Deceit’ – and The Truth” (Law Society of Upper Canada, 8th Annual Family Law Summit, April 1, 2014) at p. 3-3 et seq. [5] Hameed v. Hameed, 2006 ONCJ 274 (O.C.J.), at paras. 11 and 13. [6] Ibid., at para. 56. [7] Veljanovski v. Veljanovski, 2016 ONSC 5063 (S.C.J.), at paras. 15-32. [8] Fattali v. Fattali, [1996] O.J. No. 1207, 22 R.F.L. (4th) 159 (Ont. Ct. (Gen. Div.)), at para. 5. [9] See rule 15(28) of the Family Law Rules. [10] See Howard v. Howard, [1999] O.J. No. 3164, 1 R.F.L. (5th) 375 (S.C.J.), at para. 4 per Aston J., citing LiSanti v. LiSanti, [1990] O.J. No. 3092, 24 R.F.L. (3d) 174 (Prov. Ct., Fam. Div.) at paras. 10-11 per Vogelsang J. See also McPhail v. McPhail, 2018 ONSC 735 (S.C.J.), at para. 16; Jean-Francois v. Barnes, 2012 ONCJ 124 (O.C.J.), at para. 37; Windsor-Essex Children’s Aid Society v. T. (E.), 2012 ONCJ 109 (O.C.J.), at para. 11; and Nyari v. Velasco, 2008 ONCJ 272 (O.C.J.), at para. 16. [11] That was certainly the evidence of the applicant father, as set out in para. 3 of his reply affidavit [T33.] To the same effect was the viva voce evidence of Ms. Anderson, and while Ms. Avery took some objection to having Ms. Anderson speak to her understanding of such matters, I note that the respondent mother does not take a contrary position in any of her affidavit material. Indeed, I note para. 10(g) of the respondent mother’s Form 35.1 affidavit sworn May 31, 2018 [T11], which indicates that Emma has “behaviour problems: won’t listen, tantrums … I agreed to Children First program …” [12] Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.), at para. 1, recently followed in Bloom v. Bloom, 2017 ONSC 1568 (S.C.J.) per A. Doyle J. [Bold and italics emphasis in the original.]