COURT FILE NO.: 18-1002

DATE: 20201210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C.

Applicant

– and –

J.B.

Respondent

Appearing as a Friend of the Court, Leighann Burns, for the self-represented Applicant

Alexandra Kirschbaum, for the Respondent

– and –

Katherine Cooligan, for the Respondent Grandparents

P.B. and L.B.

Respondent Paternal Grandparents

HEARD: October 29, 2020 at the City of Ottawa

REASONS FOR decision

audet J.

[1] On October 29, 2020, I heard a day-long motion by virtue of which all parties in this case were seeking various orders for interim relief. While the relief sought by them was set out in more detail in their respective Notices of Motion, for the purpose of this decision, they can be summarized as follows:

1- The respondent father, J.B. (“the father”), seeks to vacate and vary the July 23, 2018 order of Justice Engelking so as to obtain the following relief:

a. that the parties’ four children (age 2, 3, 5 and 7) be immediately returned to the Ottawa area;

b. that the father be granted interim sole decision-making authority on all aspects of the children’s care, with an obligation to consult the mother prior to making any decision;

c. that the children be placed in his primary care, at the paternal grandparents' home, until such time as he can secure housing suitable for the children;

d. that the mother’s parenting time with the children be supervised by a neutral third party or in a supervised access center;

e. that in the alternative to b, c, and d. above, the children continue to reside primarily with their mother, in Ottawa, but that they begin having access to the father in accordance to a gradually increasing schedule;

f. that in the further alternative, should the court decline making an order for the immediate return of the children to the Ottawa area, an order for the children to be brought to the Ottawa area by their mother three weekends per month for the purpose of having access to their father;

g. an order for a s. 30 parenting capacity assessment;

h. an order compelling the mother to answer a number of questions asked of her during questioning, and which she refused to answer;

2- The respondent paternal grandparents, P.B. and L.B. (“the paternal grandfather”, “the grandmother” or “the paternal grandparents”), seek the following relief:

a. access to their four grandchildren; remote and other access if the children continue to reside in the United States, and specific in-person access if they reside in Ontario;

b. an order compelling the mother to comply with all outstanding undertakings, and requiring her to produce all answers, information and documentation responding to refusals from her questioning;

3- The applicant mother, C.C. (“the mother”), seeks the dismissal of all motions brought by the respondents. She also seeks an order compelling all respondents to provide all answers, information and documentation responding to refusals from the respondents’ questioning.

Background

[2] The facts in this case are lengthy and the story has numerous details, many of which are of marginal relevance to the central issue in this case, which is the best interests of the children. Those facts have been described in a Decision released by Engelking in J. C.C. v. J.B. (23 July 2018), Ottawa, 18/1002 following a family motion heard by her in June 2018, as well as in a lengthy Decision written by Justice Doody in R. v. J.A.B. (19 December 2019), Ottawa, 18/RD19579, at the conclusion of a 42-day criminal trial following which the father was found not guilty of 19 criminal offences alleged to have been committed by him against the mother (18 charges) and the parties’ oldest son (1 charge). As the family’s history has been related in great detail in these two Decisions, I will not repeat it here, except to provide some context.

[3] For five years, the father and the mother were held hostage in Afghanistan by terrorists. While they were held captive, the mother gave birth to three children and conceived a fourth; N.J.M.B. (7), D.N.M.B. (5), M.G.M.B. (3), who were all born in Afghanistan, as well as D.J.M.B. (2) who was born in the United States (after the family returned to Canada). During the rescue operation that ultimately led to the family’s release, a gun fight ensued, and they barely escaped with their lives. They returned directly to Canada, bypassing the opportunity to attend a weeks’ long military debriefing program that hostages sometimes attend in Germany. They were welcomed by the paternal grandparents in Smiths Falls, who had lobbied for their release.

[4] The parents and the three older children had been through an unbelievable ordeal and their adjustment to life at home was difficult. It is not disputed that the paternal grandparents and aunts, E.B., K.B. and H.B. (“the B. family”), played a crucial role in providing the family with the emotional, financial and logistical support that the parents and the children needed to start a new chapter of their lives in Ottawa, and the long healing process from the traumatic experiences they endured while being held captive in Afghanistan. Each member of the B. family supported the family in various ways, and for such things as obtaining citizenship for the children and dealing with the mother’s immigration status. They all provided care for the children (up to 50 hours per week), made or took them out for meals, provided clothes, games and toys, had them for sleep overs, changed diapers, took them to activities and parks, provided story time, and put them to bed. In addition, the maternal grandmother home schooled the two oldest children on Thursdays, and the maternal grandfather provided care and maintenance to the apartment where the family eventually moved into.

[5] The parents cohabited with the children in the Ottawa apartment from shortly after October 13, 2017 to the night of December 30, 2017, when the father was arrested and charged with 19 Criminal Code offences which – by the time his criminal trial began – were the following: one count of sexual assault with a weapon, one count of sexual assault, nine counts of assault, one count of uttering a death threat, one count of criminal harassment, three counts of unlawful confinement, one count of causing the complainant to take a noxious thing, one count of assault with a weapon, and one count of public mischief. The alleged victim in all charges except for one was the mother, and the parties’ son N.J.M.B. (7) – who was four at the time of the alleged offence – was the alleged victim of one count of assault.

[6] The father remained incarcerated from the night of December 30, 2017 until his release pursuant to a bail hearing on June 1, 2018. In the context of that bail hearing, the paternal grandparents agreed to act as their son’s surety after having received a comprehensive psychiatric assessment which ruled out any significant concerns about the father’s mental health (other than confirming a diagnosis of PTSD and depression). It is not disputed that when the mother became aware that the paternal grandparents had agreed to act as surety for the father, she went into hiding in Ottawa with the children and refused to allow any contact between them and their paternal grandparents.

[7] Following the father’s release on bail, the mother brought a motion seeking, among other things, an order granting her temporary sole custody of the children and leave to relocate with the children to Mechanicsburg, Pennsylvania, to be reunited with and supported by her parents, her sister and extended family pending trial. That motion was contested by the father who sought, among other things, orders precluding the mother’s relocation on a temporary basis and an order providing access between the children and the paternal grandparents and aunts (by virtue of his bail conditions, the father was precluded from having contact with the children). The father also sought an order for a parenting capacity assessment and/or the involvement of the Office of the Children’s Lawyer (“OCL”) in this matter. In the context of that motion, E.B., the father’s sister, supported the mother’s motion to relocate to the United States with the children.

Interim Order of Engelking J. dated July 23, 2018

[8] The motion before Engelking J. was argued on the basis of a voluminous written record on July 19, 2018. In her decision released four days later, she made a temporary order providing that:

1. the mother was granted interim sole custody of the parties’ (then) three children;

2. there would be no access between the father and the children pending further order of this court;

3. the mother was permitted to relocate to Mechanicsburg, Pennsylvania with the children, and the father’s consent for the children to travel to the United States was not required;

4. the father was restrained from contacting the mother or the children, directly or indirectly, except through legal counsel;

5. the father was restrained from attending within 500 meters of the mother and/or the children;

6. the father was restrained from contacting family members, friends or colleagues of the mother to inquire of her whereabouts;

7. the father’s cross-motion seeking parenting rights for himself, an order for interim access between the children and his father, mother and sisters, and a parenting capacity assessment and/or the involvement of the OCL was dismissed.

[9] It is important, in the context of the motion before me, to set out the factual findings upon which Engelking J. granted interim sole custody of the children to the mother and allowed her to move to Pennsylvania in July 2018. They can be summarized as follows:

• There was no objective evidence to support the father’s serious allegations to the effect that the mother suffered from undiagnosed and untreated mental health issues;

• There was objective evidence supporting the conclusion that the mother was healthily and protectively parenting the children. That evidence was provided by the Children’s Aid Society of Ottawa, who became involved with the family on January 1, 2018 after the father was arrested, and by extended family members, including E.B. whose evidence appears to have played an important role in the court arriving at the conclusion that the mother was an excellent parent;

• The father, on the other hand, was then facing 19 charges under the Criminal Code of Canada, at least 13 of which are for alleged violent actions towards the mother and the parties’ oldest son. He was subject to very strict bail conditions, including one preventing him from having any contact with the mother or the children. As a result, he was not in a position to carry out the duties and obligations of a custodial parent, regardless of what parenting role he may have played pre-arrest, and he was not expected to be able to do so in the foreseeable near future;

• The question as to whether there was a triable issue in relation to custody and mobility was dependent upon the outcome of the father’s criminal proceeding. On the evidence before her, Engelking J. was unable to say with certainty whether there would or would not be a triable issue in this regard. In the event that the mother continued to meet the children’s needs and adequately provide for their stability, care and upbringing, there was a strong possibility that her position on custody would prevail at trial;

• There was compelling evidence suggesting the presence of significant intimate partner violence on the part of the father towards the mother, not only as presented by the mother herself, but through the following other reliable sources:

o The Children’s Aid Society (“CAS”) had determined, following its investigation, that the children were at risk of physical and emotional harm due to family violence;

o In his Reasons for Decision on the father’s bail hearing, Justice Wadden had found certain post-arrest actions of the father to be concerning, in particular, the fact that he had written six letters to the mother’s parents while he was subject to a section 516 Criminal Code condition not to have any contact with the mother. Justice Wadden had then found that the contents of the letters “pretty much seem to be an attempt to intimidate the mother”, that the father had “shown that he had a manipulative streak and had been willing and able to defy or at least skirt a court order of non-communication.”, and that he had “expressed a dislike and a disrespect for his parents”, showing “a domineering and intimidating attitude towards them, threatening to withhold access to their grandchildren because they had spoken to the police”;

• The mother intended and was asking for permission to relocate in Mechanicsburg, Pennsylvania, where she would be moving into her parents’ home or her sister’s home;

• The mother’s sister and parents were supporting this plan and swore affidavits confirming that they were willing and able to provide accommodation, transportation, financial assistance, child-care and emotional support to the mother and the children, and to give the mother the opportunity to pursue her education and obtain suitable employment;

• The maternal grandparents, who are retired, attested that they had access to excellent medical doctors who had seen the mother in the past and that they had already contacted a psychologist in the area who was prepared to arrange suitable psychological therapy for the children to deal with their family’s traumatic past circumstances;

• The mother’s proposed plan of care would provide the children with an opportunity to socialize with cousins, aunts, uncles and grandparents and have the support of extended family members;

• Although the children were at the time home schooled, it was the mother’s intention to place them in a public school in Pennsylvania if she was permitted to relocate there;

• Overall, Engelking J. found that the mother’s reason for wanting to move were compelling; she would be under less stress, she would be within the bosom of her own family and have access to the supports that they offered.

[10] At the time of the motion before Engelking J., the father was also seeking an order granting the paternal grandparents access to the children. At the time, the paternal grandparents were not parties to this case. Engelking J. denied the grandparents’ request for access, made through the father, on the basis that she did not have authority to make an order for access in favor of a non-party. The paternal grandparents were made parties to this proceeding by me on April 23, 2019, following a contested motion on this issue.

[11] Despite dismissing the father’s request for access between his parents and the children, Engelking J. felt that it was important to state her findings with regards to the involvement of the paternal grandparents in the lives of this family since their return to Canada, and their extensive role in caring for the children. At para. 70, she stated:

… the involvement of the paternal grandparents and of J.B.’s sisters and their contact with the children has been extensive since the family’s arrival in Canada on October 13, 2017. As I have noted above, J.B. and C.C. and the children spent the first few days in Canada at the home of Mr. and Mrs. B. in Smith Falls, and after they moved to Ottawa, various members of the B. family, individually and collectively, spent up to as many as 50 hours a week with C.C. and/or the children. Everyone clearly loves and cherishes these children, and they have all extended tremendous effort to assist them with their transition to their new post-captivity lives.

[12] After having noted the mother’s refusal to allow access between the children and any member of their paternal family (with the exception of E.B., who supported the mother’s move to Pennsylvania), which in Engelking J.’s view was a decision made by the mother as a result of her legitimate and overwhelming fear of the father, she nonetheless concluded that it would not be in the children’s best interests to deprive them of the love and affection of their grandparents and aunts in the long-term. She stated:

It is my hope that my order permitting C.C. to relocate with the children to Pennsylvania will provide her with the security she feels necessary to permit L.B., P.B., H.B. and K.B. to once again have liberal contact with the children.

I have no evidence before me which would lead me to the conclusion that J.B.’s family members would not be in a position to visit with the children in Pennsylvania. I encourage C.C. to be open to that possibility, but for the reasons stated above, I decline to make any order in this regard.

[13] Within hours of receiving Engelking J.’s decision, the mother left with the parties’ three children for Pennsylvania. She gave birth to the parties’ fourth child, D.J.M.B. (2), on August 25, 2018. As will be related in more details below, since the mother’s departure for the United States, the father and the B. family (with the exception of E.B.) have had no contact whatsoever with the children. They have not met, spoken to or seen pictures of D.J.M.B. (2).

[14] As any decision I make with regards to the parenting of the children, including access between them and their paternal grandparents, will depend on where the children will live pending trial, I will deal with the father’s motion to have them returned to Ottawa first.

Relocation

Legal Framework

[15] The legal principles applicable to a parent’s request to relocate the children on an interim basis pending trial were succinctly set out by Engelking J. at para. 54 to 56 of her Decision, as follows:

54 The leading case on mobility issues remains Gordon v. Goertz[^1]. In para. 49 of the case, McLachlin J., as she then was, writing for the majority, stated:

49. The law is summarized as follows:

50. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.

51. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.

52. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

53. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

54. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

55. The focus is on the best interests of the child, not the interests and rights of the parents.

56. More particularly the judge should consider, inter alia:

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. The views of the child;

e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

f. Disruption to the child of a change in custody;

g. Disruption to the child consequent on the removal from family, schools, and the community he or she had come to know.

55 Marshman J. stated in Plumley v. Plumley[^2] at para. 7 that the important factors in deciding a mobility issue on an interim basis are:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstance that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interest of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

56 In Cox v. Darling[^3], Justice Sherr of the Ontario Court of Justice noted that: “Courts need to be very cautious in permitting temporary moves in mobility cases because the child-focused inquiry required under Gordon v. Goertz, supra, is very difficult, if not impossible, to accomplish on the conflicting affidavits that one receives in these cases.” Sherr J. stated further in the same paragraph that “courts do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption.”[^4]

Analysis

a) Material changes in circumstances

[16] In order to vary the temporary order made by Engelking J. in July 2018, as sought by the father, he must meet the threshold requirement of demonstrating a material change of circumstances affecting the children. The uncontested evidence before me makes it abundantly clear that several such changes have occurred since Engelking J.’s interim order was made, which affect the children in many materials ways.

[17] First and foremost, the father was cleared of all criminal charges against him. This, in and of itself, allows for a review of the parenting arrangements between the parents. While those criminal charges remained pending against him, the father was precluded by virtue of his bail conditions from having any contact at all with the children. This is no longer the case.

[18] Further, it is undisputed that instead of relocating to Mechanicsburg, Pennsylvania, as permitted by Engelking J.’s 2018 Order, within roughly one week of arriving there, the mother moved to Virginia with the children, three hours away from her sister’s and her parents’ homes and support. The mother’s move to Virginia is a fact that she did not disclose in the context of this ongoing family litigation until she inadvertently disclosed her residential State in an affidavit sworn in the spring of 2019. The mother’s entire plan of care that she and her extended family members presented to Engelking J. in the context of the July 2018 motion was largely premised on the extensive supports available to her and the children in Pennsylvania which included her parents, her sister and her many cousins, as well as medical supports already lined up by her parents there. Contrary to what she represented in the context of the motion before Engelking J., within one week, the mother completely changed her plan and followed practically none of the proposed plan of care upon which the order approving her move was based.

[19] Finally, and contrary to what was proposed by the mother and strongly encouraged by Engelking J. at the outset of the July 2018 motion, since she moved to the United States in the summer of 2018, the mother has completely cut off any contact between the B. family (with the exception of E.B.), from the lives of the children. Not only has she denied any contact between the children and their paternal family, she has denied them any and all information with regards to the children’s health, education and overall well-being, until she was expressly ordered to disclose such information in the context of case conferences held before Master Kaufman in the summer of 2020. Even then, the information she provided was largely curtailed to suit her own agenda and was provided in a piecemeal fashion. In other words, for roughly two years, the father and the B. family have had no contact with the children and no information about their whereabouts and well-being. The mother has also failed to comply with Master Kaufman’s order requiring her to provide her proposed schedule for reintegrating the children with the father and the B. family.

[20] I am confident that this is not how Engelking J. envisioned these children’s future when she allowed the mother to move to Mechanicsburg, Pennsylvania back in July 2018. Based on the above material changes affecting the children, it is open to this Court to review the interim parenting order made by Engelking J.

b) Best Interests - Preliminary comments

[21] An analysis focussed on the children’s best interests requires a more thorough discussion of the main material changes in circumstances described above. In the context of this one-day long motion, I received a total of 21 affidavits from the parties, some of which included as many as 56 exhibits; some of those exhibits more than 50-pages long, totaling well over 1,500 pages of written evidence. To suggest that this was an overload of information would be quite an understatement. I do not intend to provide a detailed account of all the evidence adduced by the parties in the context of this motion. In the following pages, I have attempted to focus on the most important factual findings which directly and specifically impact the children’s best interests in the context of the decision that I am required to make.

c) Best Interests – Credibility and Fact Findings

[22] Essentially, I am asked, in the context of this motion, to undo on a temporary basis a status quo that has been in place for well over two years, without the benefit of a trial. If the mother is ordered to return the children to Ottawa pending trial, I will be uprooting the children from the life they have known for more than two years with the possibility that, after trial, the mother will once again be permitted to move to the United States with the children, causing these vulnerable children much disruption and instability. The evidence before me must be extremely compelling before I make that order.

[23] The father submits that the case at bar is distinguishable from ordinary cases where one parent is seeking to change an interim order prior to trial, for many reasons. In most “ordinary” cases, interim motions are based on incomplete evidence; affidavits filed have not been the subject of cross-examination; there is no opportunity to hear testimony and to make sophisticated findings of credibility. The father recognizes that these general conditions affecting interim motions are concerning for judges who fear children bouncing back and forth as a result of rulings made from incomplete evidence.

[24] However, the father argues that these important concerns, which serve as the basis for not changing interim orders prior to trial, are significantly alleviated in this instance for several reasons. He points out that this is a case where there has already been a criminal trial, and not an ordinary one. There were 41 days of thorough cross-examination of all parties and many witnesses who filed affidavits for the purpose of the motion before me, in the context of a hearing which required the highest standard of proof. Findings of facts and credibility have been made by the judge who presided on that hearing, which according to the father, touch directly on some of the central issues in this case. The parties, their family members, members of the police force and expert witnesses gave evidence. As a result of the criminal trial, the father argues that there is a factual basis in this case that should provide the family court with much greater certainty on a motion than the court would normally have in other cases, as the parties’ respective evidence has, in fact, been tested to a very large degree.

[25] Finally, the father states that questioning of all parties in this case has taken place recently. In the context of the motion before me, significant extracts from the transcripts of questioning were provided. Disclosure of police records, CAS records, medical assessments and other objective evidence, not available to Engelking J. in the context of the motion before her, have been filed for the purpose of the motion before me. This, argues the father, allows this Court to make all necessary findings of facts to make the drastic orders which he seeks, which includes not only the return of the children to Ottawa, but a complete reversal of custody and of the parenting arrangements currently in place for these children.

[26] I agree with the father’s submissions on this point, but only to a certain extent. In the context of the criminal trial before Justice Doody, the parties made essentially the same allegations about each other as they are making in the context of this family court proceeding. The mother described an ongoing pattern of behaviour by the father throughout their relationship in which he abused her emotionally, sexually and physically; manipulated her emotionally; controlled her behaviour; and tried to make her believe she was mentally ill. The father alleges that the mother has unresolved and untreated mental health issues which impact on her ability to care for the children. He asserts that he and the children were often on the receiving end of the mother’s abuse and neglect, denies the mother’s allegations that he was abusive towards her or the children or that she feared him, and he describes the mother as a highly manipulating individual who is much more clever than the victim she portrays herself to be.

[27] As stated by Doody J. in his Decision, the trial before him was not a credibility contest. The issue was whether the Crown had proven each of the elements of the criminal offences for which the father was charged beyond a reasonable doubt. He found that it had not. In coming to that conclusion, Doody J. made important adverse findings of credibility against both parents. He concluded that there were many reasons to be concerned about both parents’ credibility, and he did not believe significant parts of their respective testimony.

[28] The burden of proof that each party must meet in the context of the motion before me is much less stringent than in the context of the criminal trial before Doody J.; the parties must establish on a balance of probabilities that the allegations they are making are more likely than not to have occurred as they describe them. Based on all the evidence before me, I am able to come to the following factual conclusions[^5]:

1. I find that it is more likely than not that the parties’ relationship was fraught with intimate partner violence, perpetrated by the father against the mother (and possibly including forms of coercive and controlling behaviour).

[29] I decline to make specific findings as to the exact nature and extent of such abuse, which will be the responsibility of the trial judge. However, while the evidence presented by the Crown in the context of the father’s criminal trial did not convince the judge beyond a reasonable doubt that the father had committed the criminal offences for which he was charged, the following evidence before me supports a finding on a balance of probabilities that intimate partner abuse did in fact occur:

• There was ample evidence adduced in the context of the criminal trial, including text messages, letters and other written documents (including the infamous List of Rules) which strongly suggested that the father attempted to control the mother and to direct how she should think, dress, behave and generally live her life. Those documents showed an attitude consistent with the cruel, demeaning and demanding person that the mother described the father to be;

• Despite the father’s denials, Doody J. was satisfied that he had an animus toward the mother and had acted towards her in a cruel, demeaning and controlling way;

• The evidence surrounding the father’s agreement to punish the mother for bad behavior by hitting her 4 or 5 times with a broom stick may not lead to a finding that the father has committed a criminal assault, but it certainly leads to a conclusion that the father felt it appropriate to physically assault the mother, albeit at her own request, to punish her;

• The conclusion of the CAS that the children were at risk of physical and emotional harm due to family violence;

• Wadden J.’s conclusions in the context of the father’s bail hearing that the father had attempted to intimidate the mother and her family, that he was manipulative and had shown a domineering and intimidating attitude towards his parents.

2. I find that the mother suffers from long-standing mental health issues which may affect her ability to care for the children and may have caused her to become abusive towards the father and/or the children at times.

[30] The evidence presented by the mother herself in the context of the father’s criminal trial painted a portrait of the state of the mother’s mental health which is telling and highly concerning. Her mental health issues began long before the parties started their relationship, and perdured throughout the parties’ relationship. During the course of the criminal trial:

• The mother admitted that she would raise her voice and curse and insult people when she became upset, and that she self-identified as “dangerously, maniacally insane”;

• She indicated that at the age of 15, she became very emotional and ran into a wall, cracking it. She also admitted to punching a wall in a separate incident. The applicant also admitted that as she got older, into her twenties and thirties, her mental health had declined and now involved more serious symptoms;

• She admitted that early on in her relationship with the father, prior to their marriage, she threw things at him and shoved him on at least one occasion on a subway platform in response to a verbal comment about weight loss, although she claimed not to be able to remember whether it was in front of a train or not, offering that “had that been the outcome of it I never would have forgiven myself” and noting she felt extreme shame afterward and it was referenced between us as her attempting to kill me. She also took up a knife to the father on two occasions;

• She could not deny striking the parties’ child N.J.M.B. (7), shoving him to the ground or pushing him into a wall in Ottawa, causing a concussion. All she responded was that she “could not remember” and that it “could have been any point in time”;

• The mother acknowledged that she had a history of harming herself, including in front of the children. She would cut herself with a razor blade on her arms and her legs and perform similar acts of self-harm, both before and after having children and she was not certain about whether she did in Ottawa. She also admitted that while in the same room as the children when she would become angry, she would hit her head against a rock or a wall;

• The mother admitted to having struggled with suicidal ideations intermittently in her twenties, and to taking an excess of sleeping pills in Panama to make a point to the father about how hurt she was during the course of an argument. She admitted to making other suicide attempts while in captivity in front of the children;

• She outlined the symptoms she experienced that made her believe she had borderline personality disorder. The symptoms included: distorted self-image, chaotic relationships, intense, at times extreme emotional reactions and while “bipolar disorder is a long term rollercoaster of extreme highs and lows, but borderline personality is more like you might feel highs and lows in the same day, you know, maybe even three or four times in the same day.” She also mentioned hyperventilating and crying from anxiety, increased symptoms of anxiety in her twenties and thirties, babbling incoherently, episodes of panic, having fits, shouting and cursing, blocking out memories, treating the father in “really bad, emotionally out of control ways”, and colossal rage;

[31] The mother has not, in the past, and is not currently, attending to her own mental health needs, which based on the evidence before me, are significant. This, coupled with my findings below as to N.J.M.B. (7)’s mental health struggles and the mother’s refusal to provide all relevant information about the children, raises significant concerns on my part as to whether it is in the children’s best interests to be cared for exclusively by their mother, without day-to-day supports, as she appears to have been for the past two years.

3. The mother, and possibly her family members, have been highly deceitful to the court during the motion before Engelking J. with respect to the mother’s plan of care for the children if allowed to move to Pennsylvania.

[32] One of the main reasons for which Engelking J. permitted the mother’s move to Pennsylvania with the children was the extensive family support that the mother and her family claimed would be available to her and the children there. I find that the mother was well aware, at the time she swore her evidence for the purpose of the motion before Engelking J., that the plan of care that she was presenting was not the one she intended to put into place if permitted to move. While I make no findings in that regard, because the evidence before me is too conflicting and contradictory, I harbour significant doubt about whether the mother’s family members were also fully aware, at the time of the July 2018 motion, that the mother had no intention to remain in Mechanicsburg long-term, or even short-term.

[33] While the maternal grandparents and sister swore, back in July 2018, that they were willing and able to provide accommodation, transportation, financial assistance, child-care and emotional support to the mother and the children, and give the mother the opportunity to pursue her education and obtain suitable employment, the mother indicated during questioning that very shortly after she arrived in their home with the children, her parents told her that her presence was too stressful and she was told she would have to move. Within roughly one week after arriving in Mechanicsburg, the mother and the children were moving to a non-neighbouring State, three hours away from her alleged extensive family support. The move happened so fast after Engelking J. released her Decision, it is simply impossible to accept that it had not been planed ahead, and for quite some time.

[34] In the context of this motion, the mother’s family members (the same ones who swore back in July 2018 that they would provide significant day-to-day support to the mother) provided evidence indicating that, although they live three hours apart, they nonetheless see the mother and the children regularly (particularly the maternal grandmother and aunt, the maternal grandfather not so much), and spend many weekends with them throughout the year. They paint a glowing picture of the mother’s parenting abilities and of how well the children are doing in her care. Without the benefit of viva voce testimony tested by cross-examination, I am unable to determine whether these witnesses’ evidence should be believed this time around.

[35] The evidence before me makes it very clear that in Virginia, the mother and the children do not have access to the kind of support network – if one exists at all – that she claimed she would have if allowed to move to the United States. The evidence presented by the mother, even if I was to believe it, does not demonstrate that her family members are playing any significant role in the children’s day-to-day care, health care, accommodation, transportation, childcare or education.

[36] The only family support available to the mother in Virginia is her half-sibling whom the family only learned existed in the years just before Afghanistan. That half-sibling, JoAnne R., is 52 years old and self-described recently as having Borderline Personality Disorder, Bipolar Disorder, Anxiety, Agoraphobia, Depression and many other mental illnesses. Although JoAnne is the only member on the mother’s plan of care that the children see on a regular basis, during her August 20, 2020 questioning, the mother removed her name from the list of people with whom the children have contact.

[37] The only clear conclusion I can draw from all this evidence is that the mother has provided the children none of the extensive family support she claimed would exist if allowed to relocate on a temporary basis.

[38] Before Engelking J., the mother also indicated that her financial assistance was limited to ODSP and rent subsidies in Ottawa, and that was one of the reasons for needing to leave Canada. During her questioning, the mother confirmed that, while in Canada, she had researched what government benefits would be available to her in the United States and already understood at that time that they would be fewer than in Canada. The father states that her disclosure confirms that she has received a total of between $6,000 and $14,000 over the past 25 months from all assistance programs in the United States. It is not disputed that the assistance from ODSP coupled with Ontario’s child tax benefits and housing subsidy would have been significantly greater.

[39] The mother also relied on her need to continue her education and obtain suitable employment as a reason to wanting to relocate to Pennsylvania, where her plan towards self-sufficiency would be made possible by the extensive support network available to her there. Given her lack of support network in Virginia, it is not surprising that the mother has made no effort at employment in the United States, and has not completed any program of education, other than a handful of transitional courses.

[40] The mother has also been deceitful to the CAS in Ontario. She did not notify the CAS of her move from Pennsylvania to Virginia. During her questioning, she admitted that she had mislead the CAS into believing that she was still living in Pennsylvania, as recently as June 2020.

4. The mother has made arbitrary decisions with regards to the children which show a willful disregard for their best interests

[41] The overwhelming evidence before me confirms that the only reason for which the mother chose to cut all contact between the children and their paternal grandparents since May 2018 is that they agreed to act as their son’s surety, which allowed him to be released from jail pending the outcome of his criminal trial. The mother has admitted as much on several occasions, including during her questioning.

[42] It is undisputed that the children became closely bonded to their paternal grandparents upon their arrival to Canada, and that the B. family was instrumental in giving these children some sense of normalcy, stability and safety after the traumatic ordeal they went through in Afghanistan. When the family was released from captivity, the paternal grandparents committed their lives to the well-being of their grandchildren, caring for, teaching and supporting them along with their son and daughter-in-law.

[43] Much evidence was adduced before me in relation to the paternal grandparents’ relationship, which is alleged to have been (and which may still be) fraught by domestic abuse. The evidence of E.B., in particular, is noteworthy and quite credible. However, her evidence is contradicted by the equally credible testimony of her two younger sisters. Without the benefit of a trial, I am unable to come to clear findings in that regard.

[44] Having said that, the undisputed evidence before me, which includes many admissions on the part of the mother made throughout the course of this proceeding and during her questioning, confirms the following:

• The mother never expressed any concerns, until this proceeding resumed after the father’s acquittal, about the paternal grandparents’ ability to care for the children;

• The mother admitted to the children having a close bond and loving relationship with their paternal grandparents and the evidence makes it clear that she relied upon them heavily to assist with their day-to-day care while living in Ottawa, including during the five months that followed the father’s arrest and incarceration;

• Although the mother was already aware of the possible existence of domestic abuse by the paternal grandfather towards the paternal grandmother before the motion before Engelking J., she still confirmed before her that she had no concerns in relation to the paternal grandparents’ ability to care for the children, and continued to include them as supports in her s. 35.1 affidavit;

• The mother admitted that the children were upset by the abrupt termination of their relationship with their paternal grandparents and that the loss of their support had been traumatic to them. She confirmed that she had explained the paternal grandparents’ absence by telling the children that “they had done bad things”.

[45] As discussed in more detail below, the mother’s decision to completely sever the children’s relationship with their paternal grandparents, in light of the above and in the manner described above, was arbitrary and unjustified. It is a decision that she made out of spite, to retaliate against the paternal grandparents for agreeing to act as their son’s surety, and without any regard for the emotional well-being of the three oldest children.

[46] On May 30, 2018, the mother brought a motion seeking an order initializing the title of proceedings to protect the children’s identity from being available to the public and to protect them from suffering harm as a result of their potential exposure to sensationalized media versions of their family’s experiences. The mother’s motion was granted, and an order was made that the parties’ and the children’s names in all court documents filed in these family proceedings be initialized, as well as the title of proceeding.

[47] Despite her having successfully obtained this order, subsequently, the mother gave interviews to the ABC, the Washington Post, the Toronto Star and the CBC during which she described, at length, the abuse she and the children had endured at the hands of the Taliban and allegedly at the hands of the father. The mother’s decision to give those interviews is not only impossible to reconcile with the motion she brought in May 2018 and her allegation that her move to Virginia was necessary to keep herself and the children safe, it was made without any regards to the significant harm this may expose the children to.

d) Best interests – Findings of Facts which I am unable to make

[48] While the evidentiary record before me allows me to come to the factual conclusions made above, the highly contradictory and untested evidence before me does not allow me to make findings of facts on the following central issues relevant to the orders I am asked to make.

1. How are the children currently doing?

[49] As previously stated, the mother has not been willing to share all of the relevant information about the children’s health, education and overall well-being to allow the parties, and the court, to assess their best interests. She has provided almost no independent and objective information in relation to the two youngest children’s health and overall well-being, other than her own testimony. During the course of her questioning, and by virtue of disclosure orders made by Master Kaufman which she initially tried to appeal, the mother was eventually required to provide more comprehensive information about the children, including from third parties. The information that she eventually provided, however, is incomplete, and its reliability was quite successfully challenged by the father in the context of this motion before me.

[50] For instance, the mother reports that both N.J.M.B. (7) and D.N.M.B. (5) were impacted by the years of captivity, and according to her, by the years of abuse they have witnessed and experienced that was perpetrated by their father. She reports that N.J.M.B. (7), particularly, has struggled the most and has been diagnosed with Chronic PTSD, exposure to violence during early childhood, and exposure to domestic violence. She confirmed that he was seen twice by a psychiatrist (without identifying the individual) to assess the need for medication, that he was enrolled in Therapeutic Day Treatment through his school and for a summer program – without more – and that she found a very supportive psychologist, Dr. Sadler, who made the above diagnosis and who is currently overseeing N.J.M.B. (7)’s treatment.

[51] The mother did not provide the medical disclosure ordered to be produced by Master Kaufman in the summer of 2020, stating that this information cannot be obtained for court purposes without a legal subpoena due to US privacy laws. The mother’s only evidence supporting this assertion is her own testimony, which is not supported by any other (and more) reliable evidence.

[52] To support her claim that N.J.M.B. (7)’s mental health has significantly improved, the mother adduced into evidence a Diagnostic Summary prepared by Dr. Sadler, which confirms that her summary is based on a comprehensive psychological evaluation completed by her in May 2020. That psychological evaluation, however, has not been produced by the mother. In her Diagnostic Summary, Dr. Sadler reports that N.J.M.B. (7) is “believed” to have achieved developmental milestones within normal limits. However, he has experienced distressing memories of traumatic events, recurrent distressing dreams related to the traumatic event, trauma specific re-enactment, prolonged distress with trauma cues or reminders, and notable physiological reactions with triggers. According to Dr. Sadler, N.J.M.B. (7) struggles to tolerate distress and uses aggression and intimidation to get his way. He has consistently labile mood, which leads to extreme reactivity to seemingly benign or small events. While some triggers are not readily apparent, N.J.M.B. (7) appears to be triggered by unexpected change, not having his way, feeling as though outcomes are not fair, or being instructed to do undesired tasks. He reportedly utilizes threats, aggression and refusal to comply as a means of tolerating distress.

[53] Having diagnosed N.J.M.B. (7) with chronic PTSD, witness to violence during early childhood and exposure to domestic violence, Dr. Sadler opined that treatment planning would need to be comprehensive, to include academic accommodations and interventions, outpatient, home-based and extracurricular supports in order to improve N.J.M.B. (7)’s social-emotional development, trauma-processing an overall well-being. She confirmed that N.J.M.B. (7) and his mother had attended 19 out of 19 scheduled outpatient therapy appointments since his initial evaluation in May 2020, and that N.J.M.B. (7) also began thrice weekly in-home therapy in July 2020. The treatment goals of such therapy include improving distress and frustration tolerance, enhancing emotional regulation skills, improving interpersonal skills and help N.J.M.B. (7) process his complex trauma history and improve his relationship with his mother and siblings. She also made many additional recommendations with regards to psychological, psychiatric, academic and psychosocial interventions.

[54] Dr. Loy, who provides the in-home therapy referred to above, provided an affidavit in support of the mother’s position in this motion. He confirms that he has been providing in-home services to N.J.M.B. (7) from June 22, 2020 to the present, at the rate of three visits to the home each week, from one to two hours each session. He stated that the mother was present to engage during each session and that she had demonstrated outstanding ability to provide for the physical, emotional and social needs of all her children. He stated that the mother clearly cared for and loved her children, as evidenced by the countless interactions between the mother and the children that he directly observed over the course of the past months. At paragraphs 6 to 9 of his affidavit, he states:

6. Due to the extent of N.J.M.B. (7) past trauma that continually impacts the severity and frequency of current problematic behaviors […] it is the recommendation of this clinician that paternal family access be extremely limited at this time.

7. Access should be transitional in nature with the least imposing form of access, such as video conferencing. Virtual access is to be supervised and monitored by N.J.M.B. (7)’s mother.

8. N.J.M.B. (7)’s participation time should not be forced or predetermined (i.e. 10 minutes, 1 hour etc.) access should be when N.J.M.B. (7) wishes to participate not when paternal family expects him to participate, as this may cause undue stress or trauma.

9. Further, if and when mother deems in-person access to be appropriate, it is recommended visitation with paternal family be supervised by an outside agency or provider via supervised visitation services.

[55] Dr. Loy recommends that paternal family access be limited, without providing reasons or a foundation for that recommendation.

[56] While the above, at first glance, supports a conclusion that N.J.M.B. (7)’s mental health and behaviour challenges, while serious, are being properly addressed by the mother, the reliability of the mother’s evidence, including Dr. Sadler’s and Dr. Loy’s evidence and professional opinions (assuming for the moment that such opinion evidence is admissible before me in its actual form, which it is not[^6]), is significantly put into question by the following:

• A review of Dr. Sadler’s Diagnostic Summary makes it abundantly clear that her conclusions and opinions rest exclusively on the information that was conveyed to her by the mother, including that N.J.M.B. (7) has been exposed to ongoing domestic violence and abuse perpetrated by his father. Dr. Sadler has never met or spoken to the father, and the extent of her investigation and exploration of other potential causes for N.J.M.B. (7)’s challenges, such as the potential impact of his mother’s mental health issues on his overall functioning, are unknown;

• I am not aware of the specific information Dr. Sadler and Dr. Loy have been provided by the mother in order to deal with the severe trauma endured by N.J.M.B. The mother’s failure to provide Dr. Sadler’s comprehensive psychological assessment is highly problematic in this regard;

• Both Dr. Sadler and Dr. Loy come to conclusions about the impact on N.J.M.B. (7) of his past experience with his father and paternal family. Dr. Loy, in particular, makes recommendations which seriously limit the father and the paternal family’s ability to have contact with N.J.M.B. (7), without ever having met these individuals and based exclusively on the – possibly distorted – information provided by the mother;

• Dr. Sadler does not appear to be aware that doctors have deemed N.J.M.B. (7) to have autism (this is mentioned in N.J.M.B. (7)’s family physician’s medical records);

• Dr. Sadler notes that N.J.M.B. (7) has seen three different therapists since he moved to Virginia (Dr. Loy being the fourth). No information whatsoever has been provided by the mother about the nature and extent of services provided by those therapists and why their services were discontinued. Whether Dr. Loy is aware of the work completed by previous therapists involved with N.J.M.B. (7) (including possible those involved in his care in Ottawa) is unknown;

• Dr. Sadler believes that N.J.M.B. (7) is enrolled in the gifted and talented program at his school, a fact that is not confirmed by the disclosure provided by the mother;

• During her questioning, the mother reported that N.J.M.B. (7) was enrolled in sports but that the COVID pandemic had caused the termination of these activities. In his report however, Dr. Sadler confirms that the child was removed from those activities “due to aggression towards teammates”;

• The extent of Dr. Sadler and Dr. Loy’s knowledge of the mother's significant mental health issues, if they are even aware of them, is unknown. Their evidence and opinion provide no insight as to whether the mother’s mental health issues may have had an impact on N.J.M.B. (7)’s own mental health issues.

[57] Based on medical records received from the mother, the father indicates that D.N.M.B. (5) has developed an eating disorder which appears to be attributable to anxiety (I have not seen the records that allegedly confirms this), and that he continues to be in need of speech therapy. His individual education plan indicates that he continues to have difficulty communicating and speaking. The father indicates that D.N.M.B. (5) was diagnosed with a developmental delay after he arrived in Ottawa, something that the mother denied at the motion before Engelking J., but which she later acknowledged in her updated 35.1 affidavit. D.N.M.B. (5) may have been enrolled in play therapy at some point, but no independent information in that regard was provided by the mother.

[58] In his affidavit sworn on October 11, 2020, the father also alleges that the disclosure update the mother provided on August 21, 2020 indicates that “the school and therapist indicate that [D.N.M.B. (5)] is struggling academically, struggles to be verbally comprehensible and has typically not met the special ed benchmarks for specific terms and that he is not expected to do so in the future”. The father did not attach the “disclosure” alleged to have been received from the mother as an exhibit to his affidavit, which is strange given the voluminous number of exhibits attached to all his affidavits. This omission is even more puzzling given that his allegation above is quite different from the evidence provided by the mother about D.N.M.B. (5)’s academic progress.

[59] To support her evidence that N.J.M.B. (7) and D.N.M.B. (5) are progressing well in school, the mother provided report cards from the Ressie Jeffries Elementary School, where she states the children have been attending school since September 2018. D.N.M.B. (5) is currently enrolled in kindergarten in that school, and according to his teacher Ms. Shy, he is either meeting expectations or progressing well in all areas of his schooling. Ms. Shy noted that D.N.M.B. (5) is an absolute joy to have in class, always putting a smile on her face. In the overall summary for the 2019-2020 academic year, the following mention is made: “D.N.M.B. (5) appears to be genuinely happy all of the time and lights up the room with his smile. He is a bright little boy.” A Comprehensive Physical Examination Report completed on July 24, 2020, which I understand from reading the report must be completed for each child no longer than one year before entry into kindergarten or elementary school in Virginia (according to the report), confirmed a clean bill of (physical) health for D.N.M.B. (5).

[60] N.J.M.B. (7), who is in grade 2, is doing remarkably well in Math, writing, sciences and social studies (with marks over 90% in these subjects). He is noted to be improving his reading skills, but also to be struggling significantly in his social growth. According to Matthew Hopple, the assistant principal in N.J.M.B. (7) and D.N.M.B. (5)’s school, the boys have not missed one day of school since they started in September 2018. He describes D.N.M.B. (5) as a well-behaved student, but reports that when N.J.M.B. (7) started kindergarten in 2018, the school created an abbreviated schedule due to his lack of socialization prior to starting school, and his dismissal time was earlier than the rest of his school-aged peers. In 1st grade, he started on a full day schedule and this has remained to this day.

[61] Mr. Hopple also reported that N.J.M.B. (7) received Therapeutic Day Treatment services “from an outside agency in the school” while in 1st grade. That agency is not identified, but Mr. Hopple confirms that the agency felt that N.J.M.B. (7) had made enough growth behaviorally to dismiss him from those services. The mother has not provided the name of the outside agency who provided services to N.J.M.B. (7) in his 1st grade, nor the name of the professional(s) who was involved or all the records and information confirming the nature and extent of the work done by that (those) professional(s) with N.J.M.B. (7).

[62] The father argues that N.J.M.B. (7) and D.N.M.B. (5) are enrolled in the Timber Ridge Academy, which is described as a reformatory school for children at risk of being removed from their home situations due to substance abuse pending criminal investigations or severe emotional disturbance in their home environment. The father raises many concerns about the children having been registered there as students.

[63] The evidence before me in no way supports the conclusion that the boys are enrolled in Timber Ridge. The mother’s evidence, which includes reports cards for both children, as well as the affidavit of Mr. Hopple, makes it clear that they are enrolled at the Ressie Jeffries Elementary School, and that N.J.M.B. (7) currently receives community in-home services, in the form of in-home sessions with Dr. Loy, whose services are provided through the Timber Ridge Academy.

[64] This being said, the court does not have a full picture of N.J.M.B. (7)’s mental health and behavioural struggles, which admittedly is complex, and it is apparent that the information provided by the mother about the assessment, therapeutic, academic and behavioural services he has received over the past two years has been significantly curtailed with a view of limiting the father’s (and perhaps this Court’s) access to that information. Moreover, I have significant concerns about whether the professionals involved in the care of N.J.M.B. (7) have been provided with a complete and accurate picture of this child’s complex history and family relationships. This leaves me with quite some pause as to the reliability of the information received from these professionals, through no fault of theirs, including from the boys’ school, although it gives me a lot of comfort to know that at least there are therapeutic services in place for N.J.M.B. (7), and that both boys are progressing well in school.

[65] There is no independent information available with regards to M.G.M.B. (3), other than medical records which do not reveal any problems in relation to her health. No independent information whatsoever was provided with regards to D.J.M.B. (2). Given that the two girls are not attending school yet, and are not enrolled in a daycare, the only information I have with regards to these two children is the information provided by the mother herself or her family members, which is limited to general statements that they are doing “wonderfully” well.

2. What was the extent of each parent’s involvement in the day-to-day care of the children before their separation, and what is their respective ability to meet the children’s needs?

[66] Each parent has adduced significant evidence to support their respective positions about the role each had in the day-to-day parenting of the children, and the level of risk that each parent poses to the safety of the children in light of the alleged abusive behavior and mental heath issues of the other parent.

[67] In support of his position that he was the children’s primary caregiver while the family was held captive in Afghanistan, that he was highly involved in the day-to-day care of the children while the family was in Canada, that he was a loving and caring father with a close bond to his children, and that the mother’s mental health issues were such that he was frequently required to step in to care for and protect the children, the father relies on the evidence of his family members, being his parents, as well as his two sisters, in addition to his own evidence.

[68] In support of her position that she was always the children’s primary caregiver, that the father was minimally involved in their day-to-day care, and that the father gradually assumed total control over her life entrapping her and the children into a web of abuse, which caused her to fear him and eventually flee for her and her children’s safety, the mother relies on the evidence of her parents, her two sisters, her cousin, E.B., a journalist who met the family upon its arrival to Canada, as well as the professionals already mentioned above.

[69] I do not intend to relate at length the evidence each of these witnesses have provided to me over hundreds of pages of written affidavits. Suffice it to say, their evidence on these key issues is diametrically opposed and highly conflicted. While many of those witnesses have testified in the context of the father’s lengthy criminal trial, the issues upon which they testified related to the specific events which led to the charges, being the alleged assaults by the father against the mother and N.J.M.B. (7). The evidence of these witnesses on issues relating to the day-to-day care of the children, the children’s overall functioning and well-being and the family’s dynamics (including the dynamics in the parents’ respective extended families) were not the subject of the criminal trial. The highly disputed evidence before me does not allow me to make important findings of credibility, which are required for me to come to conclusions of facts in relation to the parenting arrangements that would be in the children’s best interests.

[70] In summary, I am unable, based on the evidentiary record before me, to determine the following:

• The extent of each parent’s role in the day-to-day care of the children;

• The extent of the children’s current needs and each parent’s ability to meet those needs;

• The true extent of the children’s maternal family support while the children live in Virginia;

• Whether the mother or the father was ever abusive towards the children or anyone of them, as is alleged by both;

• Whether the older three children, or anyone of them, were closely bonded with their father or whether they, or anyone of them, were fearful of him;

• Whether N.J.M.B. (7)’s relationship with his mother, given her alleged mental health issues and alleged past abusive behavior towards him, was poor and highly problematic as alleged by the father;

• What the mother has actually told the children about their father’s absence for the past two years, and whether the children have come to believe – or knew from their own experience – that their father should be feared;

• Whether seeing their father again, after more than two years of complete absence from their lives, will trigger positive or negative feelings and reactions in N.J.M.B. (7) and D.N.M.B. (5), and to what extent this might cause them emotional harm.

And the list goes on.

e) Relocation - Conclusion

[71] Given all of the above, I am not prepared, at this time, to order the children’s return to Ottawa on a temporary basis pending trial or to uproot them from the life they have known for the past two years on the basis of the contradictory evidence before me. However, and for the reasons set out below, I am not dismissing the father’s motion at this point. I am only adjourning it to a later date, hoping that it will not be necessary for me to reconsider this issue before trial, but leaving it open to the father to bring his motion back before me if the mother does not fully comply with the orders I am making below.

Temporary Access to the Father

[72] The father’s request for access to the children is determined on a “best interests” test, as set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and s. 16(8) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp). Subsection 24(2) of the CLRA sets out a list of factors which are relevant to the court’s assessment of a child’s best interests. While I will not list them all here, I have considered them all in coming to the order that I make today.

[73] D.J.M.B. (2), the parents’ fourth child, has never met her father. M.G.M.B. (3), who was only one year old when she last saw her father, likely has very little memory of him, if any. Given my inability to come to any findings of facts with respect to the state of the father’s relationship with D.N.M.B. (5) and N.J.M.B. (7) before the parties’ separation, and because I do not know what, exactly, they have been told by their mother about their father’s absence for the past two years, I do not know whether seeing their father will trigger a positive reaction or cause the children emotional harm. To protect the children’s emotional well-being, access between the father and the children must resume slowly and gradually, in a way that will be sensitive to these children’s special needs and past experiences.

[74] The already trying circumstances of this case are further complicated by the fact that the parents live many hours away from each other and in different countries, that it is not safe at this time for the father to enter the United States (given what the mother may have told the American authorities about him), and the existence of significant travel restrictions imposed by public health authorities in both countries due to the COVID pandemic.

[75] In my view, in light of all these circumstances, the first step in re-instating some form of contact between the father and the children is to allow such contact to take place virtually by videoconference, and in a supervised setting, optimally a therapeutic one. I am of the view that it is important, for both parents and for the children, that access be supervised by a neutral professional, at least at the beginning. This is to ensure that there is reliable and objective evidence of what is taking place during visits to ensure the children’s emotional well-being, and to allow the court to re-evaluate the extent of the father’s access periodically pending trial. More importantly for N.J.M.B. (7) and D.N.M.B. (5), it is imperative that they be prepared emotionally for their first visit with their father in over two years.

[76] Given that Dr. Loy has been extensively involved as N.J.M.B. (7)’s therapist since the summer of 2020, that he continues to do in-home visits three times per week (for 1 to 2 hours each visit), and that he is known to all children, in my view, he would be the best person to oversee the father’s virtual visits with the children. Obviously, this responsibility cannot be imposed on Dr. Loy without his consent, which consent has neither been provided or sought at this point. Should he be unwilling to take on this responsibility, the parties will have to locate another professional supervisor available and willing to do so, or an outside agency or facility who offers supervised access services in the vicinity of her home.

[77] The details of the virtual access that I have decided to provide to the father is set out in details at the end of this Decision.

The Paternal Grandparents’ Access

[78] Pursuant to s. 16 of the Divorce Act and s. 21 of the CLRA, a parent of a child or any other person, including a grandparent, may apply to a court for an order providing them access to the child. The legal principles applicable to a grandparent’s request for access to a grandchild have been recently reviewed in great length by Justice Madsen in Ninkovic v. Utjesinovic, 2019 ONSC 558, 23 R.F.L. (8th) 172. I will not repeat those principles here. Ultimately, and as set out in the oft-cited case of Giansante v. Di Chiara, 2005 ONSC 26446, deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

a. Does a positive grandparent-grandchild relationship already exist?

b. Has the parent’s decision imperilled the positive grandparent-grandchild relationship?

and,

c. Has the parent acted arbitrarily?

[79] The question is not what is good for the grandparent, but what is in the best interests of the child. Further, the question is not what is theoretically in children’s best interests, but what is in the best interests of the particular child in the case at hand. Each case turns on its own unique circumstances and the only issue is the best interests of the child.

[80] I have already made clear my conclusion that there was a pre-existing positive and meaningful relationship between the three oldest children and their paternal grandparents, and that this relationship had been severed by the mother arbitrarily and without reasonable justification. Now I must decide whether it would be in the children’s best interests to resume contact with their paternal grandparents and if so, the form and extent that such access is going to take for the time being.

[81] The evidence before me makes is abundantly clear that the grandparents’ conduct towards these children have been nothing but exemplary during the time they were allowed to care for them. Despite allegations in relation to domestic violence between the paternal grandparents, there is no evidence whatsoever suggesting that the paternal grandparents pose any kind of threat to the children. Quite the contrary, and as admitted by the mother on numerous occasions, the paternal grandparents were a positive influence in the children’s lives, they were closely bonded to them and she never had any concerns about their ability to care for the children.

[82] The paternal grandparents’ instrumental role in obtaining the family’s release from captivity, their devotion to these children while they resided in Ottawa, their unfettered support of the mother after their son was arrested and put in jail (based on her allegations), their continued effort in trying to connect with the mother and the children in a respectful and sensitive way since she left for the United States, and their request to be added as parties to this proceeding for the purpose of re-instating some form of contact with their grandchildren, are a testament to their dedication and long-term commitment to the well-being of these children. In my view, they have much to contribute in providing the love, the support and an extended family support network upon which these children will be able to rely throughout their childhood and beyond. This should not be denied to the children solely because their grandparents have agreed to act as their father’s surety.

[83] Based on the above, I come to the conclusion that it is in the best interests of the children to have access with the paternal grandparents. Further, I find that it would be in the children’s best interests to re-instate access between the children and their paternal grandparents first, before access with their father is also re-instated. Finally, I find that the grandparents’ access, like the father’s access, must be re-instated gradually, in a way that is sensitive to these children’s emotional needs.

The Ontario Court’s Jurisdiction over D.J.M.B. (2)

[84] Although there is no formal motion before me seeking a determination as to whether this Court has jurisdiction to make orders in relation to the parties’ fourth child, D.J.M.B. (2), all parties seek orders pertaining to her and the mother raises the issue of this Court’s jurisdiction over this child in her Factum. She presented the issue as follows: “Whether three of the four children over whom this Honorable Court has jurisdiction should be returned to Canada on an interim basis pending trial, or whether they should remain in the U.S., where they have been established for over two years”. All parties made submissions in this regard during the motion, although their collective submissions were very limited.

[85] D.J.M.B. (2) was born on August 25, 2018 in Virginia. She is an American citizen and it is not disputed that she never set foot in Canada, and that she has lived her entire short life in the U.S. It is also not disputed that the Ontario Court has jurisdiction over the eldest three children.

[86] On March 14, 2019, the mother filed a Petition before the Virginia Court seeking custody of D.J.M.B. (2). At page 4, she represented to the court that she had no knowledge of “any proceeding that could affect this proceeding… which is pending in a court of this or any other state or foreign country”, specifically negating the presence of “custody, visitation… proceedings relating to domestic violence, protective orders, abuse and neglect, termination of parental rights.” This representation was clearly false, in light of the parties’ ongoing family litigation before the Ontario Court, and in light of the mother’s own Application (in Ontario) in which she claimed sole custody of the children including of “the fourth child of the marriage once s/he is born”.

[87] At some point after D.J.M.B. (2) was born, the father initiated a Divorce Application in Ontario, seeking a divorce as well as corollary relief. That Divorce Application was later consolidated with the mother’s Application under the CLRA (she had not sought a divorce when she filed her Application before the Ontario Court back in 2018). The father’s Divorce Application mentions all four children (D.J.M.B. (2) was then born). The mother consented to the consolidation of both applications before the Ontario Court. Therefore, the issues related to the parenting of D.J.M.B. (2) is currently before the Ontario Court.

[88] On February 26, 2020, the father initiated a pre-trial hearing before the Virginia Court seeking to have the mother’s Application for custody of D.J.M.B. (2) dismissed on the basis that the filing was vexatious. The Virginia proceeding was adjourned to December 2, 2020 for a pre-trial hearing to set a schedule. I am not aware at the time of writing this Decision whether Virginia has accepted or declined jurisdiction over D.J.M.B. (2).

Legal framework

[89] The issue of which court has jurisdiction over D.J.M.B. (2) is a complex legal issue which must be decided based on a very unique set of facts. Section 16 of the Divorce Act provides that when parties are divorcing in Canada, “a court of competent jurisdiction” may make orders respecting custody and access under the Act. Section 3 of the Divorce Act confirms that an Ontario court has jurisdiction to hear and determine a divorce proceeding and/or a corollary relief proceeding if either spouse has been “ordinarily resident” in the province for at least one year immediately preceding the commencement of the proceeding. Section 6, which is particularly relevant here, states:

6 (1) Where an application for an order under section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

[90] It is undisputed that this Court has jurisdiction over the divorce between the parents in this case and, therefore, this Court is a “court of competent jurisdiction” to hear and determine parenting matters as well, regardless of where the children are currently living. However, this Court may transfer the proceeding to another province, if that other jurisdiction makes more sense pursuant to s. 6 of the Divorce Act. While s. 6 speaks of jurisdictional issues between provinces, it also applies in the context of a child who is ordinarily resident in another country (unless of course the child was wrongfully removed from Canada and/or the analysis is taking place under the Hague Convention[^7], which is not the case here).

[91] Section 6 requires the court to apply a three-part test in deciding whether to transfer an application[^8]:

(1) With which province is the child most substantially connected? If the answer to that question is the province to which the transfer of the application is being sought, the Court is required to consider the second question, namely:

(2) Is the transfer of the application in the best interests of the child?

(3) Would a transfer impede the proper administration of justice?

[92] Different factors have been identified to determine where the child is “most substantially connected”, including the following:

o the immediate residence of the child;

o the duration of the child’s residence in each competing jurisdiction;

o the strength of the child’s bonds to persons and circumstances in each province;

o any change of domicile or ordinary residence of the child, including whether any removal was wrongful;

o whether the removal was justified in light of abuse directed at the child by the parent remaining in the other province;

o the behaviour of the parents towards compliance with interim custody orders;

o the province in which evidence of the child's present circumstances is most readily available;

o the province in which the issue of custody can be most easily and cheaply determined.

[93] Evidence that a parent has attorned to a jurisdiction is not determinative. Rather, the issue is to be determined is the child’s connections:

…accordingly, the parents' connections with their provinces of residence are only apposite to the extent that they relate to the child. Hence, an agreement by the parents to attorn to the jurisdiction of a certain province will seldom be decisive in determining the child's connections. Instead, factors such as any expression of the child's own wishes, access to siblings, extended family and friends, duration of residence, and the child's association with health, school, community, religious and recreational agencies, will predominate.[^9]

[94] In H. (S.J.) v. H. (M.E.), at para. 47, Czutrin J. stated that when considering the best interests of the child, the court may favour the jurisdiction that is able to proceed most expeditiously.

Analysis

[95] One the one hand, it is difficult to argue that D.J.M.B. (2) is most substantially connected to Ontario than Virginia. As stated before, she is an American citizen and she has lived in the U.S. her entire life. Evidence as to her health, her care and her development is only available in the U.S. On the other hand, forcing these parents to litigate parenting issues in relation to three of their children before one court and in relation to their fourth child before another one, in another country, hardly makes sense. It would be incompatible with any notion of fairness and efficiency.

[96] The within legal proceedings have been ongoing in Ontario since 2018. They were initiated by the mother herself and the father responded to the proceeding in Ontario. Clearly, both parties attorned to the jurisdiction of Ontario at that time. In her initial application (under the CLRA) the mother sough orders in relation to her “child to be born”, and she consented to the father’s divorce application (filed in Ontario), in which he seeks orders in relation to all four children, to be consolidated with her own Ontario application.

[97] I agree with the paternal family’s argument that it is not realistic to suggest that there could possibly be another forum more convenient to decide the best interests of D.J.M.B. (2) than the jurisdiction in which the best interests of her three older siblings are going to be assessed and determined. The evidence and analysis of which parenting arrangements are in D.J.M.B. (2)’s best interests are inextricably intertwined with the evidence and analysis relevant to the best interests of her siblings, and they should be decided together, in one court.

[98] For these reasons, I conclude that this court has jurisdiction over all four children, including D.J.M.B. (2).

The Need for a s. 30 Assessment

[99] Section 30 of the CLRA authorizes the court to order an independent psychological assessment of the parties and their children where custody of or access to those children is in dispute. The parts of s. 30 which are relevant to this motion are the following:

Assessment of needs of child

30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

When order may be made

(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application.

Agreement by parties

(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person.

Consent to act

(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.

Attendance for assessment

(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order.

Refusal to attend

(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6).

Directions

(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).

Fees and expenses

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).

[100] It is undisputable that an assessment in this case would not only be useful, it is necessary to allow the court to gain insight into the emotional and psychological traumas and stresses that each member of this family has been through, and to understand the very complex family dynamics at play here. Further, it is necessary for the court to full assess the children’s needs, particularly N.J.M.B. (7)’s and D.N.M.B. (5)’s special needs resulting from their past traumatic experiences, and the parents’ ability to meet those needs in light of the serious allegations being made in relation to their mental health and the presence of intimate partner abuse.

[101] While the physical distance between the parents may create challenges for the due completion of this assessment, the COVID-19 pandemic has taught us that there are many ways in which our work can be accomplished effectively through the use of technology. The paternal grandparents have confirmed their willingness to pay for this assessment, and they do not seek a contribution from either parent. The father and the paternal grandparents have also professed their willingness to assist the mother in making the financial transition back to the Ottawa area, should she be required to relocate here, including by providing her with funds to rent housing while she makes the necessary applications to social assistance etc. Should the parties agree on an assessor who is located in Ontario, I assume (without deciding) that they would also be willing to help with the costs associated with the mother having to travel to Ottawa with the children, and to stay in Ottawa for a brief period of time, as may be requested by the assessor to conduct observation visits and complete his or her work.

[102] At the time of the motion before me, no particular assessor had been identified by the parties. As detailed below, I will allow the parties to return before me to make submissions in that regard if they are unable to come up with a clear plan and sign retainer agreement with an assessor within 45 days.

Request for Bifurcation

[103] To the extent that his motion for the immediate return of the children was not granted, the father sought an order that the trial of this matter be expedited and bifurcated, with Part 1 of the trial dealing with the issue of the children’s return to Ottawa.

[104] Rule 12(5) of the Family Law Rules, O. Reg. 114/99, s.1 (“the Rules”) permits the court to split a case into two or more separate cases, claims or issues, where it would be more convenient to do so. The leading case in Ontario about bifurcation is Simioni v. Simioni, (2004), 2009 ONSC 934, 74 R.F.L. (6th) 202 (Ont. S.C.J.).

[105] I am of the view that no purpose would be served by bifurcating this case as suggested by the father. The issue of what parenting arrangements are in the children’s best interests are inextricably intertwined with the issue of whether they should live in Ottawa or remain in Virginia. Determining the issue of relocation first would be to put the horses in front of the cart, in my view. Before the children are returned to Ottawa, a full inquiry into their best interests is necessary, unless the children’s return to Ottawa becomes necessary as a result of the mother’s refusal to comply with any part of the court order that I make today. I have already stated that I will be prepared to re-consider my decision on temporary relocation in the event that the mother fails to fully comply with this order.

[106] For those reasons, the father’s motion for an expedited trial is dismissed.

Disclosure Orders

[107] In their respective Notices of Motion, all three parties sought orders compelling the other to answer questions asked during questioning and to comply with existing disclosure orders and undertakings. As the motion focussed entirely on issues related to the children, and due to time constraints, I did not receive comprehensive submissions on these disclosure issues. The evidence relating to outstanding undertakings and orders to produce is either missing or has not been properly identified during the motion, and some was provided to me by the parties after the motion, by correspondence through the Trial Coordination office. I have not reviewed that additional evidence as it was not properly before me.

[108] Further, additional disclosure may have been provided since the parties’ Notices of Motion were filed rendering any order I may make today moot. Simply stated, I am not in a position to decide on this issue at this time, without further submissions and clarifications being provided. This issue is therefore deferred to the next appearance before me, as set out below.

Orders

[109] Based on all the above, I make the following temporary order:

1. The four children shall remain in their mother’s primary care in Virginia, U.S.A.

2. All access between the children and their father and paternal grandparents will take place virtually for the time being, through a videoconference platform to be agreed to between the parties within 15 days.

Grandparents’ Access

3. The paternal grandparents shall have virtual visits with the children in accordance with the following schedule:

a. Every Sunday, beginning on December 27, 2020, with N.J.M.B. (7) and D.N.M.B. (5) only, at 2 p.m., unless the parties reach agreement on a different time;

b. Every Monday, beginning on December 28, 2020, with M.G.M.B. (3) and D.J.M.B. (2) only, at 1 p.m., unless the parties reach agreement on a different day/time, it being understood that the visits must take place while the older two children are in school (except if the visit falls on a holiday or PD Day).

Father’s access to the children

4. The father’s visits with M.G.M.B. (3) and D.J.M.B. (2) shall take place on Mondays at the same time as the paternal grandparents’ visits with these two children (as per para. 3b) above), beginning during the week that the two older children are back in school after the Holidays (in other words, as of January 2021 the Monday visit will be a joint visit between the two younger children, their paternal grandparents and their father).

5. In addition to the above, the father shall have one additional virtual visit every week with M.G.M.B. (3) and D.J.M.B. (2), beginning during the week that the two older children return to school after the Holidays, on a day and time to be agreed to between the mother and the father’s counsel within 15 days. That visit shall also take place while the older two children are in school. The day and time chosen for this virtual weekly visit shall remain the same every week until further order of the court, unless expressly agreed to otherwise by the parties.

6. As soon as possible after the paternal grandparents have had at least three virtual visits with N.J.M.B. (7) and D.N.M.B. (5), the father shall have one weekly supervised virtual visit with N.J.M.B. (7) and D.N.M.B. (5), for 30 minutes to an hour (depending on the level of engagement of the children), on a day and at a time to be agreed to between the mother and the father’s counsel once the identity of the supervisor, as well as his/her availability, are known. The parties should use best efforts to ensure that this virtual visit occurs on the same day and at the same time every week, and that it takes place without the presence of the younger two children (if supervised at home by Dr. Loy or another privately retained supervisor, the mother shall ensure that she is not present in the room with the younger two children during the father’s visit).

7. No later than two days after having received this decision, the mother shall inquire from Dr. Loy whether he is prepared to supervise the father’s virtual visits with N.J.M.B. (7) and D.N.M.B. (5). For that purpose, the mother shall provide Dr. Loy with a copy of this decision upon making that request to him.

8. Dr. Loy’s response shall be provided by the mother to the parties in writing, within 15 days.

9. If Dr. Loy is not prepared to supervise the father’s visits, the parties shall agree on another professional supervisor, or on a supervised access facility in the mother’s vicinity. These arrangements must be completed within 15 days of receiving confirmation from Dr. Loy that he will not supervise the visits.

10. The father shall be responsible for the costs associated with the supervised visits, which shall be paid in advance of each visit (otherwise the visit will be cancelled).

Provisions applicable to all virtual visits

11. For those virtual visits taking place in her home, the mother shall ensure that the video call is commenced as scheduled and shall provide the coordinates for the call to the paternal grandparents and/or the father’s counsel by email exchange, at least 5 days in advance of each visit.

12. If for a valid reason out of the mother’s control (i.e. a child being too sick) a scheduled virtual visit cannot occur, it shall be rescheduled within the same week.

13. The duration of the grandparents’ virtual visits with the children and of the father’s virtual visits with M.G.M.B. (3) and D.J.M.B. (2) shall be at least 15 minutes but can extend for up to 30 minutes if the children (or anyone of them) remain engaged during the conference.

14. Given the age of the two younger children, and since they may not engage for very long (or at all, as far as D.J.M.B. (2) is concerned), the mother shall ensure that they nonetheless remain in an area where the paternal grandparents and father can see them, speak to them and try to interact and engage with them.

15. Within 15 days, the mother shall provide an email address and a mailing address (which does not need to be her own residence’s) for direct delivery of mail to the children, and shall ensure that the children will receive all mail sent to them from their paternal grandparents and father, including hard copy mail, small modest gifts, emails, and videos.

16. The virtual visits may be recorded, as long as the recording is done through the computer itself and in a way that is not noticeable by the children. If there is a dispute in relation to the choice of supervisor, any terms to be included in the retainer agreement, or compliance with the access provisions of this order, a hearing can be arranged before me on 48 hours’ notice to the other parties, and I will decide.

17. The father continues to be restrained from contacting the mother or the children, directly or indirectly, except through legal counsel and except as permitted under the within order for the purpose of exercising access to the children.

Section 30 parenting assessment

18. There shall be an assessment of the children’s needs and the ability and willingness of each parent to satisfy those needs pursuant to section 30 of the Children’s Law Reform Act.

19. Within 45 days, the parties shall have completed the following:

a. Exchange of names, coordinates and credentials of assessors ready and willing to complete this assessment, including availabilities;

b. Agreement on the assessor, and;

c. Execution of the assessor’s retainer agreement and payment of the agreed-upon retainer.

20. If there is a dispute in relation to the choice of assessor, any terms to be included in the retainer agreement (including the requirement for travel to facilitate interviews or observation visits), or compliance with the assessment process, a hearing can be arranged before me on 7 days’ notice to the other parties, and I will decide.

21. The assessor shall be provided with a copy of this decision once retained. The parties are free to share with any prospective assessor a copy of this decision to facilitate the assessor’s understanding of the complexity of this case.

22. On consent of the grandparents, the costs of the assessment shall be borne entirely by them.

Return of this motion before me

23. This motion is adjourned to a date to be fixed through the trial coordinator (before me) after the father has had at least six virtual visits with N.J.M.B. (7) and D.N.M.B. (5). At that time, the following issues will be addressed;

a. Whether the paternal grandparents’ and the father’s access to the children should be curtailed, expanded or varied, and whether it should include in-person visits as well;

b. Any outstanding issues related to disclosure and the parties’ compliance with undertakings given at questioning;

c. Any matters pertaining to the due completion of the parenting assessment, including in relation to any arrangements required to ensure that the mother’s and the children’s needs are being met during any required stay in Ottawa for the purpose of the assessment process.

24. For the purpose of that motion, the parties are permitted to file brief and focussed updating affidavits in accordance with the following guidelines;

a. The updating affidavits shall be limited to information relevant to the above-mentioned issues, unless the parties are granted leave by myself to deal with any additional issues (to be brought to my attention by way of 14B motion);

b. Sworn evidence from the access supervisor shall be provided in relation to the two oldest children’s supervised virtual visits with their father;

c. Evidence related to the limits and restrictions that may be imposed on travel between the two countries due to the COVID-19 pandemic, including need for a self-isolation period;

d. The father and paternal grandparents shall serve and file their updating evidence no later than 10 days before the motion;

e. The mother shall serve and file her updating evidence no later than 5 days before the motion hearing;

f. The father and grandparents may serve and file a reply no later than 2 days before the motion hearing.

Other Orders

25. I shall remain seized of all motions in this matter, until trial.

[110] If this has not already been made crystal clear, the mother is hereby advised that failure on her part to fully comply with orders made today in relation to access between the children and their father and paternal grandparents and the completion of a parenting assessment, may result in a reconsideration of my decision to allow her to remain in Virginia with the children pending trial.

Costs

[111] In my view, success was clearly divided in this motion. Both parents rely on public funds for their day-to-day subsistence. At first glance, neither has an ability to pay a cost award. This motion pertains the best interests of four vulnerable children. I am not inclined, based on the above, to make an award of costs for this motion. However, if there are circumstances which, if known to me, might change my conclusion in this regard, I will accept brief written submissions on costs not exceeding five double-spaced pages (exclusive of Bills of Costs and Offers to Settle), in accordance with the following timelines;

• The mother to provide her submissions by December 30, 2020;

• The father and paternal grandparents to provide their submissions by January 13, 2021;

• The mother to provide her reply, if any, by January 20, 2021.

Madam Justice Julie Audet

Released: December 10, 2020

[^1]: 1996 SCC 191, [1996] 2 S.C.R 27. [^2]: 1999 ONSC 13990. [^3]: 2008 ONCJ 91, para.13 [^4]: Ibid. [^5]: During the motion before me, all parties relied extensively on findings of facts and credibility made by Doody J. in the context of the father’s criminal trial. Based on the principles set out by the Ontario Court of Appeal in Plate v. Atlas Copco Canada Inc., 2019 ONCA 196, 145 O.R. (3d) 1, I have concluded that significant weight ought to be given to many of Doody J.’s factual findings, and I have relied on them substantially to reach some of my own factual conclusions, as set out herein. [^6]: As such evidence does not comply with Rule 20.1 and 20.2 of the Family Law Rules, O.Reg. 114/99. [^7]: Hague Convention on the Civil Aspects of International Child Abduction. [^8]: H. (S.J.) v. H. (M.E.), 2011 ONSC 1569, 2 R.F.L. (7th) 436 at paras. 42-43; Sheilds v. Sheilds, 2001 ABCA 140, 281 A.R. 320 at paras. 16 and 22; Agnew v. Violo, 2013 ONSC 4430, 35 R.F.L. (7th) 384 at para. 10. [^9]: Shields at para. 16.