COURT FILE NO.: FC-19-477
DATE: 2020-12-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Michael Sears, Applicant
AND
Sarah Linda Coristine, Respondent
BEFORE: Justice Hélène C. Desormeau
COUNSEL: Richard Bowles, for the Applicant
Ian Vallance for the Respondent
HEARD: November 27, 2020, by Zoom
RULING ON MOTION
DESORMEAU J.
Introduction
[1] In the context of a high-conflict separation, the issue for determination on this motion is the appropriate access order between the Father and his two children.
[2] At the outset of the Motion, on consent of both parties, portions of the Mother’s evidence were struck. The Father wished to file a further affidavit, dated November 26, 2020, to which he appended the access notes from the previous Sunday, photographs and a video. The Mother wished to file an Acknowledgement of Expert’s Duty form, signed and dated on November 27, 2020 by Dr. Moncion. This form was only forwarded to the parties after the Court raised a concern regarding the lack of such an Acknowledgement. Given that there was no right of secondary reply and that the filing deadlines had not been complied with, I declined to permit either to be filed or to consider the same in this Ruling.
Background
[3] The Applicant, Jason Sears (“Father”) and the Respondent, Sarah Coristine (“Mother”), were married on November 5, 2011, and separated on March 27, 2018. Together they have two children (“the children”), Vivian Coristine-Sears, born December 10, 2012 (age 7), and Tristan Coristine-Sears, born April 22, 2015 (age 5).
[4] In June 2019, the parties signed an Interim Without Prejudice Separation Agreement (“Separation Agreement”), which set out that the Father would have access to the children every second weekend from Friday at 4:30 p.m. to Sunday at 6:00 p.m., and Wednesdays non-overnight.
[5] Following the Father’s signing of the Separation Agreement, and prior to the Mother’s signing of the same, the Father was charged with historical assaults against the Mother. Those charges were withdrawn by the Crown on December 19, 2019.
[6] On October 23, 2019, the parties appeared before me for a case conference. At that time, the parties agreed, on an interim without prejudice basis, that the children would reside primarily with the Mother, and that the Father’s parenting time would resume, as set out in the Separation Agreement. Both parents agreed to strictly comply with the dairy-free diet for both children, and the gluten-free diet for Vivian.
[7] On December 17, 2019, both parties argued motions whereby the Mother sought to decrease the Father’s parenting time, and the Father sought to increase his parenting time with the children. On March 6, 2020, Corthorn J. released her Ruling (“March Order” or “Ruling”), in which she determined that the children would continue to reside primarily with the Mother, and that the Father’s parenting time would occur in accordance with the Separation Agreement: Fridays at 4:30 p.m. to Sundays at 6:00 p.m., every Wednesday from 4:30 p.m. to 7:30 p.m., and such further access as agreed upon by the parties. Justice Corthorn also ordered both parents to strictly comply with the dairy-free diet for both children and the gluten-free diet for Vivian: Sears v. Coristine, 2020 ONSC 1455.
[8] In June 2020, the Mother raised allegations of physical and sexual abuse by the Father toward one or both of the children. The Father vehemently denies these allegations.
[9] On June 9, 2020, Master Kaufman determined the matter was urgent, and on consent of both parties, he endorsed that the Father’s access was suspended until a motion could be heard on the issues.[^1]
[10] On September 10, 2020, Corthorn J. commenced but was unable to complete the motion (a) due to lack of evidence regarding the “review” of the Ottawa Police Service (“OPS”) investigation, (b) because of evidentiary issues regarding the Children’s Aid Society (“CAS” or “the Society”) records, and (c) because the CAS investigation was not yet complete. The matter was adjourned to October 2, 2020, then heard on October 7-8 and heard again on November 3-4, 2020. As outlined in Corthorn J.’s endorsement of November 5, 2020, on October 19, 2020 the parties finalized the terms of the interim agreement (“October Access Order”).
[11] The October Access Order stated, on a without prejudice basis, that the Father would have supervised access to the children, two hours per week, at a designated location in the community. The supervisor’s notes were to be provided to the parties and made available to the court for the November conference date.
[12] On November 5, 2020, Corthorn J. ordered access to be increased to three hours on November 8, 2020, then four hours on November 15, 2020, to occur in the Father’s home (“November Order”). Justice Corthorn set a return date for conference continuation before her in mid-November 2020. All of the terms of the November Order were subject to any order that I would make when the matter appeared before me on November 9, 2020.
[13] On November 9, 2020, as case management judge and due to the continuing high conflict nature of this file, I determined that I would hear all further motions and if so required, the trial. The motion for access was set for November 27, 2020, with strict timelines with which the parties were to comply.
Evidentiary issues
[14] There were a number of evidentiary issues with regard to the motion materials filed. The Court heard submissions regarding: the children’s statements; hearsay evidence; business records; the reliability of audio and video recordings; and the reliability of undated photographic evidence and drawings. The parties also attached emails from third parties to their personal affidavits.
Photographs, Drawings, Audio and Video Recordings
[15] Both parties have each attached to their affidavits photographic and/or video evidence upon which they wish to rely.
[16] The first set of photographs attached as Exhibit D to the Mother’s affidavit dated August 21, 2020 showed injuries on the children, such as bruising, cuts, and scrapes. These photographs were undated, but it was the Mother’s evidence that they occurred during access times with the Father. Attached to the Father’s affidavit dated August 26, 2020 were photographs of the same times when the children would have been with him during which the injuries were alleged to occur. The injuries depicted in the Mother’s photographs were not readily apparent in the photographs provided by the Father. Attached to the Mother’s affidavit of November 16, 2020 were several photographs, this time with the metadata.
[17] The Mother also sought to rely on audio and/or video recordings of statements made to her by Vivian. Two of the statements were struck on consent. The audio and/or video recordings included Vivian’s disclosures regarding the alleged sexual abuse, and Tristan’s statement about what he heard Vivian tell their Father.
[18] These statements were offered for the truth of their contents. The Court did not have the benefit of a voir dire to test the necessity and reliability of the evidence proffered by the Mother. There was insufficient evidence as to the taking of the statement and the circumstances surrounding the same. On its face, the Court is concerned with the statement by Vivian with regard to the sexual abuse because it begins with the Mother prompting the child to repeat herself. Without the benefit of a voir dire and cross-examination, I am not prepared to give any weight to these audio recordings.
[19] The Father provided numerous video recordings which showed the children at various times and doing various activities, such as riding bicycles and playing in puddles. While they depicted moments in time of the children having fun, they were no more conclusive than the photographs discussed above.
[20] Finally, though the Mother attached drawings made by the children to her affidavit, I cannot place any weight on them without the requisite evidentiary foundation regarding the circumstances of the making of the drawings.
Children’s Statements and Hearsay Evidence
[21] The Mother submitted that the Court should rely on the children’s statements set out in her materials for the truth of their contents. In particular, statements made by Vivian were either made to the Mother or to the child’s service providers such as Dr. Moncion.
[22] The Father argued that the children’s statements should not be admitted for the truth of their contents. He submitted that there were issues with regard to reliability and that the statements should be given little weight.
[23] Both parties’ affidavits also contained hearsay statements from third parties.
[24] Hearsay evidence is presumptively inadmissible as a matter of law unless it falls under a traditional exception to the hearsay rule. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled approach, sufficient indicia of reliability and necessity are established on a voir dire: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion: Baldree, at para. 31.
[25] In the case at hand, no oral evidence was called.
[26] Where the hearsay evidence complies with rr. 14(18) or (19) of the Family Law Rules, O. Reg. 114/99 (“FLR”), those statements shall form part of the evidence on the motion, subject to the weight the Court finds appropriate to afford the statements.
[27] Where there is no compliance with the above rules of the FLR, given that hearsay evidence is presumptively inadmissible unless it falls within an exception, no weight shall be given to that evidence.
[28] As for the children’s statements, while I find the method of introduction of the statements reasonably necessary, I find it appropriate to give them very limited weight at this stage primarily because of reliability issues. The evidence was that the statements relied upon from March 17, 2020 onward,[^2] which Vivian verbalized to Dr. Moncion and Dr. Gunnink, were made virtually in the Mother’s home. Neither Doctor was subject to cross-examination regarding the statements made by the child. There was very little context given to assure the Court that the statements were indeed made privately. The Father raised the possibility of the Mother being in the room with the child when the statements were made, which was denied by the Mother. Though Dr. Moncion’s affidavit indicated that she had no reason to believe that Vivian was lying or being coached, again, this statement was not tested in cross-examination.
[29] As for the statements made by the children to the Mother, I am again troubled by reliability issues. The evidence proffered has not been tested at trial and is completely denied by the Father.
Attachments to Affidavits
[30] Both parties have attached letters, text messages, and/or emails from third parties to their affidavits. For instance, the Mother attached correspondence from her sister Laura Coristine to the CAS worker, and an email to the Mother from someone at the OPS in which the sender’s name was blacked out. Some of the attachments to the Father’s affidavits were text messages from his landlord and emails to the children’s service providers.
[31] Both parties had sufficient opportunity to have the authors of the letters, text messages, and/or emails provide affidavits of their own to permit them to be properly before the Court.
[32] Letters, text messages, and emails attached to affidavits are not sworn evidence. Before making an order, the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents: Katz v. Katz, 2014 ONCA 606, 50 R.F.L. (7th) 1, at para. 63.
[33] Where an unsworn letter or report is tendered for the truth of its contents in respect of contested facts, the closer those facts come to the dispositive issue, the closer scrutiny the letter or report deserves, including submitting to meaningful cross-examination evidence from witnesses with firsthand knowledge of the facts: Ceho v. Ceho, 2015 ONSC 5285, at para. 50, citing Isakhani v. Al-Saggaf, 2007 ONCA 539, 226 O.A.C. 184, at paras. 37-39.
[34] Given the deficiencies regarding the attachments mentioned above, subject to my findings about business records below, I am not prepared to give any weight to any emails, text messages, or letters from third parties attached to the parents’ affidavits.
Business Records
[35] As noted above, the Father wished to rely on two sets of records from the CAS received pursuant to the joint direction of both parties.
[36] The first set of records was addressed on September 11, 2020, as set out in Corthorn J.’s endorsement of September 14, 2020. Justice Corthorn noted that the CAS records were not exhibits to an affidavit and no notice pursuant to the Evidence Act, R.S.O. 1990, c. E.23 with regard to reliance on business records was filed. Justice Corthorn required additional submissions with respect to (a) the basis upon which the records were before the court, (b) the purpose for which the records were filed, and (c) the portion of the records that were admissible for the stated purpose. The Court would then be in a position to determine what portion, if any, of the CAS records would be admissible on the motion and the purpose for which they may be used.
[37] The Father’s counsel provided the Court with a hard copy of the CAS records, as requested by Corthorn J. A bookmarked electronic copy was delivered on or about September 28, 2020.[^3] The second set of CAS records was received in early November, and a bookmarked version was provided to the Mother on November 20, 2020. On November 23, 2020, the exact pages upon which the Father wished to rely were identified. Formal notice under the Evidence Act was not provided to the Mother until November 25, 2020.
[38] Other business records filed by the Father include the access notes created by the access supervisors from Brayden Supervision Services, appended to the Father’s affidavit, and criminal Informations appended to Alan Brass’ affidavit.[^4] No notice was provided pursuant to the Evidence Act regarding these business records.
[39] The Mother wished to rely on a number of business records, including but not limited to letters from Dr. Moncion[^5] which were appended to Dr. Moncion’s affidavits, three pages of Dr. Sara Gunnink’s[^6] clinical notes which were appended to Dr. Gunnink’s affidavit, and letters from Dr. Kristian Goulet[^7] which were attached to the Mother’s affidavit. No notice was provided pursuant to the Evidence Act regarding these business records.
[40] The Mother objected to the CAS records being relied upon by the Father due to the deficiencies noted by Corthorn J. in her September 14, 2020 endorsement and the Father’s lack of compliance with the Evidence Act regarding the business records.
[41] The Father acknowledged that no notice was filed regarding the business records the Mother wished to rely upon. While he had some objections to the evidence and/or opinions contained therein, he did take issue with the lack of proper notice.
[42] In support of the Father’s position that the CAS and other business records should be considered as evidence on this motion, he directed the Court to Catholic Children’s Aid Society of Toronto v. M. (A.D.), 2016 ONCJ 742. Justice Zisman noted, at para. 20, that “the lack of formal notice is not fatal as noted many years ago by Justice Arbour, as she then was, in the case of Exhibitors Inc. v. Allen (1989), 1989 CanLII 4216 (ON SC), 70 O.R. (2d) 103 (H.C.). The court held that although formal notice is not required actual notice is required in accordance with section 35(3) of the Evidence Act.”
[43] The Father also relied on Ganie v. Ganie, 2014 ONSC 7500, which discussed the admissibility of Police Reports and CAS records. Ultimately, the Court reviewed a number of cases where records were admitted, as well as the common law exception for hearsay from business records. As noted by the Court, at para. 140, “one limitation under the common law exception is that the records are not admissible if the maker has a motive to fabricate.” That argument was not advanced in the case at hand, nor would I be inclined, at this stage, to find that any of the professionals in this case have a motive to fabricate.
[44] The Mother directed the court to Doyle J.’s comments in The Children’s Aid Society of Ottawa-Carleton v. V.M., 2020 ONSC 221. Justice Doyle did not admit the records that were proffered as business records by the CAS as they were simply attached to a staff member’s affidavit, and there was no evidence addressing the record’s compliance with the reliability assurances set out in s. 35 of the Evidence Act. Justice Doyle expressed concern that there was no evidence to satisfy the requirements found at para. 48 of Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (H.C.) – for instance, that the records were maintained in the ordinary course of business and that the notes were taken contemporaneously or shortly after the event: The Children’s Aid Society of Ottawa-Carleton v. V.M., at para. 38.
[45] One major difference between The Children’s Aid Society of Ottawa-Carleton v. V.M. and this case is that the former was a summary judgement motion in the context of child protection proceedings. In that case, the orders sought by the Society were termination of a parental and child relationship, and orders for extended society care for the purpose of adoption. At para. 24, Doyle J. stated: “Unlike family law and civil disputes, a protection case involves state intervention in a family's lives and has serious and permanent ramifications for families.” Justice Doyle referenced Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at para. 80, wherein the Court of Appeal for Ontario cautioned that courts in child protection summary judgement motions are to conduct a careful screening of the evidence to eliminate inadmissible evidence, and not give weight to evidence that would be inadmissible at trial. The case at bar is not a child protection case, nor is it a motion for summary judgement. While I am mindful that there are serious issues to be determined, the Court is not being asked to extinguish a parental relationship by the state.
[46] With regard to actual notice as opposed to formal notice, the Father’s evidence was that the Mother had the first set of CAS notes since late September 2020, and a properly bookmarked set since September 28, 2020. The Mother’s evidence was that the properly bookmarked set was received on or about November 5, 2020. The second set of CAS records was provided on or about November 20, 2020.
[47] Similarly, most of the records upon which the Mother wished to rely were served prior to the return of the September 11, 2020 motion, or at least seven days prior to the hearing of this motion. Dr. Goulet’s letters, however, were attached to the Mother’s affidavit dated November 25, 2020.
[48] It is clear that there are exceptions which could permit the CAS records to be considered by the Court on this motion. However, the CAS records were not attached to an affidavit. They are simply filed with the Court as what I would call two electronic books of documents. Without the records being attached to an affidavit, the Court has no evidence (a) that the documents are what they purport to be, or (b) attesting to their veracity. Without the proper evidentiary foundation, I will not consider these records on this motion.
[49] I turn now to the Father’s request to rely on the access notes created by the access supervisors from Brayden Supervision Services, appended to the Father’s affidavit, and the criminal Informations appended to Alan Brass’ affidavit.
[50] While no notice was provided pursuant to the Evidence Act regarding what it purports to be business records, I am satisfied that the proper evidentiary foundation has been met to permit them to be considered by the Court.
[51] As noted above, the Mother wished to rely on Dr. Moncion’s letters, Dr. Gunnink’s clinical notes, and letters from Dr. Goulet. Like the Father, the Mother provided no notice pursuant to the Evidence Act. I must differentiate Dr. Moncion’s letters and Dr. Gunnink’s clinical notes from Dr. Goulet’s letters as the former were appended to their own affidavits, while the latter was attached to the Mother’s affidavit. A further differentiation is that Dr. Goulet’s letters were only served on the Father on or about November 25, 2020, two days prior to the motion being heard. I am also troubled by Dr. Goulet’s expressed opinion regarding Vivian’s access to her Father where (a) I have no evidence of her qualifications to express such an opinion, and (b) her opinion is qualified as being “[b]ased on what mom tells me”. For all these reasons, I will not consider the letters provided by Dr. Goulet. I do, however, find that the letters from Dr. Moncion attached to her affidavit and Dr. Gunnink’s clinical notes are admissible evidence.
[52] While I have found it appropriate to admit some of the records, I am nevertheless alert to inadmissible opinion evidence or hearsay contained therein which will be given the requisite scrutiny and weight. I find it appropriate to consider statements made to these professionals by either parent and any other professionals for the fact that the statements or allegations were made and the actions the professional took in following up on them. I will also consider any evidence regarding direct observations made by the professionals.
Credibility
[53] As in all cases, credibility is an important consideration, particularly where there are different versions of events advanced by the parties.
[54] I echo the comments of Corthorn J. in her Ruling of March 6, 2020 that assessing the merits of the parties’ respective positions in this motion is particularly difficult as there is significant contradictory evidence which has not been tested at trial or through examinations.
[55] I am also troubled by the evidence provided by the non-professional collateral supports. While the collaterals were no doubt well-intentioned, their evidence is of limited assistance in assessing the merits of the parents’ respective positions. Without a proper testing of their evidence by cross-examination, I find their evidence does not assist in determining what is in the children’s best interests.
[56] With a motion like this, where there are “dueling affidavits”, I am unable to properly assess the internal and external inconsistencies between the witnesses and the documentary evidence and whether there is motive or self-interest to fabricate or downplay events. This is best left to the trier of fact at a hearing of all issues. Until then, I find it appropriate to rely on the reports of professional third parties where appropriate, provided those reports are not simply a recitation of one party to that professional.
The evidence
[57] On March 6, 2020, Corthorn J. made an order for regular access between the children and their Father. That order was not appealed, and therefore is deemed to be correct.
[58] On June 15, 2020, the Mother sought a suspension of the access order due to serious allegations of abuse by the Father toward one or both of the children. Given the serious nature of the allegations, the Father did not contest the Mother’s request for the order suspending access pending the outcome of the investigations by the OPS and the CAS.
[59] The Court is mindful that following the suspension of access, the parties agreed to an interim, interim order regarding supervised access between the children and the Father, which was made without prejudice to either party. Currently, based on that order, the Father’s access with the children is supervised and occurs on Sundays from 1:00 p.m. to 5:00 p.m.
[60] This is the Mother’s motion for a suspension of the Father’s access, or alternatively, supervised access at a neutral location for several hours per week.
[61] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 9, the Supreme Court of Canada indicated that there is a two-stage inquiry on an application for a variation order relating to custody and access: “First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances.” Justice McLachlin (as she then was) noted that “the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way” and that “the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order”: Gordon, at para. 12. Therefore, the onus is on the Mother to demonstrate that a material change in circumstances has occurred to permit a review of the March 6, 2020 order. Further, if I am satisfied that a material change in circumstances has occurred, I am directed pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“DA”), to take into consideration only the best interests of the children as determined by reference to that change.
[62] In order to properly situate the Court with regard to what is currently being advanced, I find it appropriate to review what Corthorn J. considered in reaching her determination with regard to access. As set out in her Ruling:
(a) Justice Corthorn considered the evidence of the parties, which she noted to be significantly contradictory. She also found the third party affidavits from friends and family to be biased and of little value. Ultimately, she deferred to the evidence from the professionals in reaching her determination on the issues.
(b) Justice Corthorn also referenced three referrals which were made to the CAS post separation: Sears v. Coristine, 2020 ONSC 1455, at paras. 53-54. The Society’s three file closure letters were included as exhibits to one of the Father’s affidavits at that motion. The referrals were made in February, May and September 2019. Justice Corthorn stated that in two of the letters, the author confirmed that the children are at risk of emotional harm due to the post-separation conflict to which they are exposed.
(c) With regard to dietary restrictions, in her Ruling, Corthorn J. commented that the dietary restrictions for the children have, for several years, been a source of conflict between the parties: at paras. 56-62. The Court found that the Father was skeptical regarding children’s dietary restrictions and directed the Father to set aside his skepticism on that issue for the well-being of the children.
(d) Regarding Vivian’s anxiety, Corthorn J. referenced a letter by Dr. Moncion indicating that Vivian “enjoys” the visits with her Father, and that the anxiety expressed to Dr. Moncion was with regard to the dietary issues. Dr. Moncion described this issue as causing Vivian “considerable distress” and contributing to her request that visits with the Father be reduced to one overnight from two: at paras. 63-64.
[63] Recognizing that the motion heard by Corthorn J. was argued on December 17, 2019, I find it appropriate to look from that date onward to determine whether or not the Mother has demonstrated a material change in circumstances warranting a variation of the March 6, 2020 order.
[64] On this interim motion, the parents have filed approximately 18 affidavits for the Court’s consideration. I will not go into exacting detail about the allegations contained therein. Just as Corthorn J. faced evidentiary challenges in determining the appropriate order in March 2020, so too is the evidence on this motion contradictory. Moreover, both parents again rely on friends and family to support their argument. Those friends and family again offer opinions and observations without the requisite expertise, which does not assist the Court in determining what access is appropriate in the circumstances.
The Mother’s evidence
[65] The crux of the Mother’s evidence was premised on disclosures from the children to either herself or third parties involving allegations of physical and/or sexual abuse on the children, and non-compliance by the Father with respect to the existing order regarding the children’s dietary restrictions.
[66] Briefly summarized, the Mother’s evidence was:
(a) The Mother alleged that during the course of her relationship with the Father, she was subjected to abuse by him, including physical, sexual, emotional, and verbal abuse.
(b) Vivian disclosed to the Mother multiple incidents of abuse to her by the Father, including physical, verbal, and sexual abuse.
(c) Tristan disclosed to his Mother incidents of physical and emotional abuse.
(d) Upon learning of the allegations from the children, the Mother requested an urgent motion so that the Father’s access be suspended, either permanently or pending completion of the CAS investigation.[^8]
(e) In the Mother’s affidavits, she described a number of allegations of what the children told her and third parties. The allegations indicated that the alleged abuse occurred in the Father’s home and that some of the relevant dates were prior to the December motion. For instance, in her August 21, 2020 affidavit, she detailed 25 paragraphs of incidents, some with specific dates, others marked as various dates. She provided undated photographs in support of her assertions, which she later corrected by attaching the metadata for the photographs. The allegations varied, including physical abuse disclosures by the children to the Mother; sexual abuse disclosures by Vivian to the Mother; the children’s changes in behaviours and increased aggressivity; and increased frequency and severity of nightmares, amongst many other concerns. Vivian has been self-harming, suffers from suicidal ideation, and has been suffering from panic attacks and anxiety. Both children have suffered concussions at the hands of their Father. As discussed above, some of the disclosures were audio and/or video recorded by the Mother.
(f) As a result of the disclosures by the children, the CAS and the OPS became involved. The CAS worker Mary McDonald provided a report dated September 24, 2020, as detailed below, which sets out that the allegations of physical and sexual abuse were inconclusive, yet the allegation of emotional harm was verified. The Mother disagreed with the report for a number of reasons, including further disclosures of abuse made by Vivian and that Ms. McDonald failed to speak to several individuals in relation to the disclosures. With regard to the OPS investigation, the Mother alleged that the Father’s lawyers placed a lot of pressure on the Crown to drop the abuse and harassment charges.[^9] The OPS ultimately did not lay charges against the Father.
(g) The Mother also contended that the Father refused to follow medical recommendations regarding Vivian’s concussion and failed to follow the children’s dietary restrictions, including by force-feeding Vivian food that contained gluten.
(h) The Mother denied all of the allegations advanced by the Father, Lawrence Sears, and Ryan Anderson in their affidavits. The Mother’s evidence was that Mr. Anderson has, since becoming friends with the Father in 2019, repeatedly sought to create conflict.
(i) After supervised access commenced, it was the Mother’s evidence that Vivian’s behaviours continued to deteriorate, which included public outbursts, increased nightmares, crying fits, being inconsolable for hours, urinating in her pants, recommencement of self-harming behaviours, harming others, developing nervous tics, as well as emitting high-pitched howling noises when “severely stressed”, amongst other behaviours. Tristan also had reoccurring, almost nightly nightmares, bouts of sobbing, bouts of soiling himself (sometimes several times a day), and self-harming behaviours.
(j) The children reported to the Mother being fed treats or chocolate and being given presents at every supervised visit with their Father. The Mother stated in her November 25, 2020 affidavit that “[t]he children are clearly struggling with being in the moment and having fun and enjoying the special treatment but it does not mean they are not having a hard time emotionally with the abuses that they have suffered and witnessed.” The Mother argued that by showing pictures of the children being happy at access, he is attempting to minimize the abuse just as he had done to her in the past.
(k) With respect to the supervised access visits notes, the Mother denied Emmanuella’s[^10] assertions regarding statements made by the Mother to her and provided a completely different version of events. The Mother alleged that the access supervisor was trying to bait her and that she did not maintain the proper social distance from her. The Mother also raised a number of concerns about the supervised access services. Regarding the second visit, the Mother presented a different set of facts regarding Tristan having to use the bathroom and Vivian’s negative reaction to the same. As for the third visit, the Mother addressed Vivian’s negative reaction and her stomach-ache following access into the next day. There were concerns raised about cross-contamination and questions about the Father’s use of gluten. As for the other two visits, the Mother recounted the children obtaining new clothing from the Father, Vivian looking uncomfortable, and Vivian complaining of a stomach-ache.
(l) Following the last few visits, Vivian’s behaviours continued to escalate. She was self-harming and screaming, and she continued to repeat the allegations of prior sexual abuse.
(m) In support of the Mother’s position, Carole Coubert also filed an affidavit. While Ms. Coubert may have the education and experience to “spot dysfunctional and abnormal behaviour”, the Court takes her affidavit evidence as that of a lay witness, not as that of an expert. As such, I have not considered any proffered opinion evidence contained therein. Ms. Coubert’s evidence was that since the Father’s access increased in mid-2019, she saw the children become very anxious and Vivian began having frequent tantrums. Ms. Coubert spoke highly of the Mother’s devotion to the children and her being attuned to their needs and she indicated that the Mother provided a loving and stimulating environment. She described the Mother as calm, compassionate, and exceptionally patient amongst other positive criteria. The Mother does not speak negatively about the Father, nor does she mention or make comments about him. She has witnessed Vivian self-harm and has heard disclosures made by the children. Her evidence was that leading up to access visits, Vivian has had many intense outbursts. Vivian also has had many outbursts following access. Tristan had also been more emotional and has had regressive behaviours.
(n) Laura Coristine also provided an affidavit in support of the Mother’s motion, and I have considered the portions which were properly before the court.
The Father’s evidence
[67] The Father vehemently and categorically denied each and every one of the allegations advanced by the Mother in her affidavits. He denied ever having behaved abusively toward his children or anyone else.
[68] Briefly summarized, the Father’s evidence was as follows:
(a) Following separation, the Father alleged that Mother has waged a campaign to eliminate him from the children’s lives. He argued that this is one more example to demonstrate the same. He relied on dated text messages from the Mother to him which stated, “[y]ou will never see the kids again” and “Fuck you disgusting creepoid theif [sic] rapist”.
(b) The Father stated he has gone to great lengths to appease the Mother in order to maintain contact with the children. This has included renting hotel rooms to visit with the children, completing unnecessary drug testing for which the results were negative, and purchasing a second set of appliances to alleviate any risks of cross-contamination of food and exposures to potential allergens during food preparation and storage.
(c) When the Father did not do what was asked of him by the Mother, she threatened to report him to the police and have him charged with various offences.
(d) The Mother has made false reports to the police indicating he was driving under the influence, which he denies and for which no charges were laid.
(e) In the summer of 2019, the Father was arrested and charged with historical assaults, including allegations of uttering threats and sexual assault on the Mother. As set out in Alan Brass’ affidavit, the Father’s criminal defence lawyer, those charges were withdrawn on December 19, 2019.
(f) The Mother also pursued a Private Information, more commonly referred to as a Peace Bond Application, against the Father. This was abandoned on or about March 13, 2020.
(g) Mr. Brass’ evidence was that following the police investigation, no charges would be laid against the Father regarding the allegations of physical and sexual assault on the children which formed the basis for the suspension of the March Order.
(h) The Father advanced his belief that the Mother was coaching the children to make these disclosures and he believed that the children have likely been convinced that they actually have been physically and sexually assaulted by him, though he vehemently denies doing so.
(i) The Father stated that he took to heart Corthorn J.’s comments about the degree of conflict between himself and the Mother and the negative impact on the children. He stated he has tried to set aside past conflict to focus on the children. He alleged that the Mother has done the opposite and that she has continued to deliberately and unreasonably interfere with his relationship with them.
(j) The Mother has withheld the children from access with the Father on numerous occasions for various reasons, sometimes for several weeks at a time.
(k) The Father provided photographs from the time when the alleged assaults would have occurred, time stamped to coincide with the time of the access visits. He provided detailed accounts of access times with the children to contradict the Mother’s evidence regarding the abuse and to confirm that the children’s dietary restrictions were being followed.
(l) The Father pointed to inconsistent evidence about Vivian’s concussion, allegedly stemming from a weekend with him.
(m) He did not deny that the children have had minor bumps, scrapes, and bruises sustained in the course of normal childhood activity.
(n) He denied force-feeding any child gluten-containing cereal, as alleged by the Mother. Further, as per the March Order, he lets Vivian choose whether to eat the food prepared by her Mother or that which was prepared by her Father during visits. His evidence was that he stocks gluten-free and dairy-free products in a separate fridge and pantry to allow for choices for the children that meet their dietary restrictions.
(o) Ryan Anderson provided an affidavit in support of the Father. Mr. Anderson and Ms. Coristine share custody of their daughter, Kaitlyn, born September 28, 2004. He expressed concerns about Vivian and Tristan and relied on his own past with the Mother to allege she had undiagnosed mental health issues. His separation from her was high conflict, and he indicated the Mother raised several false and unfounded accusations of physical and sexual abuse against him. Ultimately, he articulated the history he had gone through with the Mother including her frustrating his access, the concerns he had for his daughter now and then, and how it likely affected Vivian and Tristan.
(p) The Father relied on notes from the supervised access, which he stated has been a success despite the almost five-month separation between him and the children. His evidence was that the notes reflect that there is a natural display of reciprocal affection and that the interactions have been positive, and the children expressed their love to their Father along with hugs and kisses. The Father provided age-appropriate activities and assumed responsibility for how long it took to get Tristan to a washroom when he had an accident. When the visits took place in the Father’s home, he played games and engaged the children in activities, and he was able to care for Tristan when he was injured.
(q) Ultimately, the Father believes the children are being used and manipulated by their Mother. He suggested that this is due to the Mother’s own psychological problems and desire to seek revenge against him.
Dr. Moncion
[69] Dr. Moncion provided two separate affidavits, one dated August 20, 2020, the other dated November 13, 2020. Dr. Moncion is a clinical psychologist and specializes in working with children. She has been Vivian’s treating therapist since February 2018.
[70] Attached to her August 20, 2020 affidavit are her Curriculum Vitae and letters dated November 28, 2019 and June 3, 2020, which she adopts as part of her affidavit evidence.
[71] Dr. Moncion’s letter of November 28, 2019, reviewed by Corthorn J. for the March ruling, spoke of Vivian enjoying the visits with her Father. However, she was experiencing a sore stomach during or following visits. Vivian indicated to Dr. Moncion that she would rather the weekend visit be one overnight, not two nights, due to her worries about gluten which causes Vivian considerable distress. Vivian indicated that her sleep is poor after she eats gluten and then she is quite fatigued the following day.
[72] Dr. Moncion’s letter of June 3, 2020 reiterated the contents of the November 28, 2019 letter. That letter stated that the Mother has provided gluten-free foods for meals, but that Vivian indicated she is not always allowed to eat them. As previously emphasized, this situation was very stressful for Vivian and undermined the visits with her Father, which led Vivian to request no overnight visits with her Father to lessen the impact of what she was eating.
[73] Dr. Moncion went on to discuss a session with Vivian on June 1, 2020, where Vivian discussed continued dietary concerns at her Father’s home and stated she does “not feel safe” when she is with her Father. “Vivian said that he has ‘hit’ her in the face and ‘kicked’ her, ‘more than one time,’” most recently in the spring of 2020. With regard to Vivian not feeling safe, she clarified that “does not ‘feel safe’ at bath time with her Father, as he has ‘put a bar of soap inside her.’” She reported that this occurred more than once, that it first happened last summer, and that she did not recall the last time it happened. Vivian reported to her Mother what had occurred.
[74] Dr. Moncion reported the statements to CAS, and in her letter of June 3, 2020 she stated, “[u]ntil these statements are further investigated, I do not recommend that Vivian and her brother attend visits with their Father. Although I am not seeing Vivian’s younger brother, it is my understanding that he has struggled with visits as well.”
[75] Attached to Dr. Moncion’s affidavit of November 13, 2020 was her letter dated November 6, 2020, the contents of which she stated to be true and adopted as part of her affidavit. In that letter, Dr. Moncion explained she met with Vivian following the reinstatement of access with the Father. Dr. Moncion spoke with Vivian following two supervised access visits with the Father. Vivian expressed to Dr. Moncion that she “did not like seeing” her Father, that she was “scared”, and that she had “butterflies in her stomach”. She was worried about her Father not keeping the guideline distance in light of Covid-19, and she indicated that in the past, her Father had been mean and that he had thrown her and was angry at the time. She also repeated her prior statements about her Father “rubbing soap over her ‘vagina and butt’”, which makes her feel unsafe. She expressed that she had bad dreams after the visits about her Father taking her without permission or hurting her Mother.
[76] After the second visit, Vivian again said she did not want to go to the visit with her Father as she felt “uncomfortable” and “worried” during the visit. She was upset at her grandfather calling her puppy, Daisy, and “poo”. Vivian spoke of Tristan’s need to go to the bathroom and said that she was scared at her Father’s home. She reported that there was a phone call to her Mother during the visit and her Father yelled at her Mother, which upset Vivian. Her stomach hurt after the visits and she continued to have “bad dreams” after the visit.
[77] Dr. Moncion then repeated what the Mother reported to her, including that Vivian was greatly distressed following the visits, that she was more aggressive with her brother, and that she reacts strongly when Tristan mentions her Father including by yelling and howling. The Mother also reported that Vivian talked more about her Father “touching her in the bath”.
[78] Dr. Moncion suggested that Vivian would benefit from a Children’s Lawyer who would voice her concerns independently, or a private custody and access assessment. She recommended a doctor whom she previously supervised for the same.
[79] Dr. Moncion repeated the concerns outlined in her previous letters and stated that she was concerned about Vivian’s mental health. Ultimately, Dr. Moncion indicated that “Vivian is not coping well with the visits to date and any visits should continue to be a couple of hours in length, supervised, and in a neutral setting.” She concluded with “I hope that this documents my concerns and highlights my recommendation for a Children’s Lawyer to speak on Vivian’s behalf”.
[80] A plain reading of Dr. Moncion’s letters from November 28, 2019 and June 3, 2020 show an inconsistency in what Vivian was requesting with regard to overnight visits with her Father. It is unclear if she preferred one overnight, or no overnight visits. The context of the statements leads me to believe the issue was one which was raised prior to the December 2019 motion being argued.
[81] As discussed in the evidentiary issues above, I have concerns with regard to the reliability of the child’s statements to Dr. Moncion. I am also concerned that Dr. Moncion admitted that she was not Tristan’s therapist, but recommended that he not attend visits with his Father. This was clearly beyond her scope.
Dr. Gunnink
[82] Dr. Gunnink has been the children’s treating doctor since they were born. She saw Vivian on June 1, 2020, through telemedicine. Attached to her affidavit were her clinical notes from her observations of that meeting, which she adopted as part of her affidavit.
[83] Dr. Gunnink’s clinical notes reference a great deal of statements by the Mother about the background events leading up to the appointment. Dr. Gunnink then referred to speaking to Vivian, with “mom out of the room”. Vivian reported that:
(a) Her Father forced her to eat honey nut cheerios, “he put them in my mouth and made me eat them and I pushed his hands away and then ran away”; and
(b) “[D]ad kicks me and hits me and punches me”. When asked when this would occur, she stated “when I am bad then dad gets upset and hits me.”
[84] When Vivian was asked if her dad ever touches her private parts, she said “yeah”. When asked for more details she stated, “I don’t remember”. Vivian denied either parent telling her to keep secrets and stated that her Mother encourages her to tell other people if there are any secrets. When Dr. Gunnink asked Vivian if she had any adults telling her to say things that might not have happened, Vivian stated, “I don’t think so”. When asked if her Father had ever hit Tristan, she said, “he might have”. Vivian lost interest in the conversation not long afterward.
[85] Dr. Gunnink relayed the information to the CAS.
[86] Just as I had concerns about Dr. Moncion’s meeting with Vivian, I am also troubled that the meeting between Dr. Gunnink and Vivian was not face-to-face. Further, as mentioned above in the evidentiary issues section, I am concerned about the reliability issues regarding these hearsay statements.
Children’s Aid Society
[87] As a result of the allegations raised above, the CAS of Ottawa conducted an investigation. On September 24, 2020, Mary MacDonald, a Child Protection Worker from the CAS, sent a letter to the parents, via email, setting out the results of said investigation. That letter was attached as Exhibit A to the Father’s affidavit dated September 28, 2020. Ultimately, Ms. MacDonald confirmed a number of reports made to the Society regarding allegations of physical abuse of Tristan and Vivian and sexual abuse of Vivian by the Father, including the reports of: Dr. Moncion; Dr. Gunnink; the Mother; the Mother’s sister, Dr. Laura Coristine; the Mother’s Maternal Great Aunt, Carole Courbet; Cst. Leclerc from OPS; and Dr. Karwowska from CHEO. The letter detailed that there was a joint SACA/CAS investigation regarding the allegations. The police decided not to lay charges against the Father.
[88] The Society received reports from both Dr. Moncion and Dr. Gunnink who observed the children being under significant stress due to post-separation conflict. At the time of the letter, the children expressed being fearful of their Father and expressed not wanting to visit him.
[89] Ms. MacDonald indicated that in addition to observing the police interviews and the people mentioned above (minus Dr. Karwowska), she also spoke to Paula Stanistreet (third party access exchanges), Ryan Anderson, and Sandra Leblanc, the counsellor working with Tristan. The Mother provided the Society with pictures. The Society’s records in relation to the family were also reviewed.
[90] Ultimately, the Society determined that the allegation of sexual abuse by Vivian was inconclusive. The allegation of physical abuse was also inconclusive.
[91] The allegation of emotional harm was verified.
[92] I note that Corthorn J. in her Ruling referenced two letters regarding prior referrals from 2019 wherein the Society confirmed that the children were at risk of emotional harm due to being exposed to post-separation conflict.
Interim Access – Legal considerations
[93] Pursuant to s. 16(8) of the DA and s. 24(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), an order for custody of or access to a child must be made in the best interests of the child, as determined by reference to the conditions, means, needs, and other circumstances of the child.
[94] Subsection 24(2) of the CLRA sets out eight considerations for the Court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court: Libbus v. Libbus, 2008 CanLII 53970 (ON SC), 62 R.F.L. (6th) 416 (Ont. S.C.), at para. 88. The Court must also consider subsection 24(3) of the CLRA which deals with past conduct relevant to parenting and subsection 24(4) of the CLRA which deals with violence and abuse: G.T.C. v. S.M.G., 2020 ONCJ 511, at para. 61.
[95] As stated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 117, the best interests of the child is the only test in making custody and access orders. While section 16(10) DA sets out a statutory requirement to consider maximum contact with both parents, this is only so far as it fits within the requirement to serve the best interests of the child, which entails an impartial and objective view of the evidence: Young, at pp. 117-118; S.(E.) v. M.(D.), 1996 CanLII 11653 (NL SC), 143 Nfld. & P.E.I.R. 192 (Nfld. S.C.), at para. 63.
[96] In Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at para. 4, the Court of Appeal for Ontario cited with approval the following proposition from L’Heureux-Dubé J. in Young v. Young: “[T]he goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child's best interests”.
[97] Variation of a temporary access order is governed by s. 29 of the CLRA, which states that “a Court shall not make an order under this Part that varies an order in respect of custody or access made by a Court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.” Section 17 of the DA requires a “change in circumstances” to vary a custody order under the DA. In making any variation of the order, the Court shall take into consideration only the best interests of the children as determined by reference to that change.
[98] A temporary order is intended to stabilize the parties until a trial can be conducted to permit a full and complete consideration of the issues: Holland v. Fower, 2011 ONSC 4545, at para. 24.
[99] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction: A. (M.) v. D. (J.), 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946, at para. 24 (C.J.); G.T.C., at para. 68.
[100] The person seeking supervised access bears the burden of establishing that supervision is necessary: Klymenko v. Klymenko, 2020 ONSC 5451, at para. 23; G.T.C., at para. 69.
Analysis
[101] The Application was commenced by the Father under the DA. As such, the starting point in this analysis is whether or not the Mother has demonstrated a material change in circumstances with regard to the children: Gordon, at para. 9.
[102] The Court is mindful of the very serious allegations made by the Mother with regard to the physical and sexual abuse of the children, as well at the Father’s disregard for the children’s dietary restrictions.
[103] Both the OPS and the CAS conducted investigations regarding the allegations.
[104] The evidence shows that the OPS have decided not to lay any charges.
[105] The CAS investigation led to them finding emotional harm to the children. The allegations of sexual abuse by Vivian were inconclusive. The allegation of physical abuse was also inconclusive.
[106] The CAS has previously found, on two separate occasions in 2019, that the children were at risk of emotional harm due to their being exposed to post-separation conflict.
[107] The evidence shows that the criminal charges against the Father regarding historical abuse of the Mother were withdrawn on December 19, 2019, two days after the motion before Corthorn J. was argued.
[108] I am mindful that Dr. Moncion has reported grave concerns about Vivian’s mental health. Her recommendation of June 3, 2020 was to suspend access pending an investigation of the disclosures made by Vivian. Dr. Moncion’s letter of November 13, 2020 was after the first two supervised access visits. After the first visit, Vivian reported not liking to see her Father, as she was feeling scared and unsafe. After the second visit, Vivian reported feeling uncomfortable and worried. Her stomach hurt after the visits and she continued to have bad dreams. Dr. Moncion strongly advocated for Vivian to have a voice in the proceedings, by way of an OCL or a private custody and access assessment. Ultimately, Dr. Moncion found Vivian was not coping well with the visits and recommended that any visits should continue to be a couple of hours in length, supervised, and in a neutral setting.
[109] Dr. Gunnink expressed concerns that Vivian was being physically and sexually abused by the Father, as well as that the Father was disregarding the children’s dietary restrictions. These concerns were reported to the CAS, and as set out above, were inconclusive.
[110] In reviewing the supervised access by Brayden Supervision Services, I make the following observations:
(a) While at the beginning of the first visit the children were quiet and reticent to show affection to their Father, by the end of the visit the children hugged the Father back and told him they loved him. The Father made extensive preparations to ensure that the children would be warm and have fun at the visit. Overall, I found the visit to be positive. While I am mindful that the Mother disputed many of the contents in the report, I find it is more probable than not that she shared with the Supervisor very explicit details about her concerns. I am not prepared to make a determination as to whether this came from a good place or was an attempt to sabotage the visit. It was nevertheless clear that the Mother had heightened concerns about the children in the circumstances and had very little trust in the Father or the access Supervisor.
(b) The following visit involved a scavenger hunt. The children were depicted as laughing, making jokes with their Father, and having fun playing the game. The Father provided the children gluten-free candy, as independently confirmed by the Supervisor. The Father was engaged and interactive with the children. While Tristan had an accident due to a delay in getting to a bathroom, the Father was able to make Tristan laugh about it. The children saw their paternal grandfather toward the end of the visit. By the end of the visit, the children wanted to continue playing. They kissed their Father goodbye.
(c) The following visits took place in the Father’s home. Vivian was excited to share with her Father that she had lost a tooth. The children laughed when recalling past memories about their time at Tremblant. The children and the Father played together. Vivian and the Father baked cookies. At the end of the visit, the children hugged their Father.
(d) While there were different access Supervisors, overall, the visits between the Father and children were positive. The children are reported to laugh and play with their Father. The Father is appropriate, engaged, and loving. The evidence supported that the food given to the children was dairy-free and gluten-free. The Father was able to console Tristan when he was injured. The notes show a loving and caring Father who has a strong bond with his children.
[111] I am alert to the Mother’s submission that the Court should err on the side of caution when allegations are made where the children’s health and well-being are at stake. In support of this submission, the Mother directs the Court to Whitlock v. Whitlock, 2005 ONCJ 266, at paras. 10-12 and 28-30, which was a case where following separation, the Father had only ever exercised supervised access to the children. The Father had criminal charges and a restraining order against him due to domestic violence against the Mother. The Court in Whitlock found it was not in the children’s best interest to commence unsupervised visits, but ordered visits take place outside a supervised access centre. In reaching that determination, the Court stated, at para. 30, “[a]t this point, I am not even certain that supervised access is necessary to protect the children from the Father’s temper, but I choose to err on the side of caution and to institute a measure of supervision until after Christmas.” Justice McLachlan went on to order that after the Christmas holidays, the Father’s access would be every second weekend from Friday to Sunday.
[112] In De Shaikh v. Shaikh, 2017 ONCJ 819, at paras. 17 and 21-22, the Court ruled on the issue of access between the Father and his children. In that case, the Father was charged with domestic violence, wherein he was released on criminal restrictions, which he twice breached resulting in stricter bail conditions and additional charges. The Court commented that “[i]f it can be shown that contact with a parent is harmful to a child, contact can be restricted, supervised, and, in extreme, cases terminated. Violence and abusive behavior by one parent to the other can justify a termination”: De Shaikh, at para. 17, citing Jafari v. Dadar, 1992 CanLII 8642 (ON CA), 42 R.F.L. (3d) 349 (N.B.Q.B.); Abdo v. Abdo, 1993 CanLII 3124 (NS CA), 126 N.S.R. (2d) 1 (C.A.); and Studley v. O’Laughlin (2000), 188 N.S.R. (2d) 133 (Fam. Ct.). The Court determined that the allegations were sufficiently concerning and given that the evidence was incomplete, the Court erred on the side of caution, finding it was in the children’s best interest for access to be supervised until further information was available: De Shaikh, at para. 22.
[113] Justice Bondy in R.M. v. D.M., 2011 ONSC 3744, heard a motion regarding access where there were allegations of sexual abuse by the Father against the children. The children had undergone significant behavioural changes, which were likely a result of their being traumatized. The precise source of traumatization had not been determined, but the Court accepted that the underlying cause of traumatization was “probably not sexual abuse”: R.M., at para. 122. The CAS findings were inconclusive, and criminal charges were not laid against the Father. The Court did not give much weight to the lack of criminal charges “given the high standard of proof in criminal cases”: R.M., at para. 102. The Court found that there was a very real possibility that the children were being coached by the Mother. The Court found, at para. 132, that supervised access to the Father was appropriate for three reasons:
(a) The need for vigilance whenever the possibility of sexual abuse of the child exists. That is the case no matter how remote the possibility that it has occurred.
(b) The benefit of an independent trained individual to observe and report upon the children’s interactions with their father.
(c) The suggestion of [the Father’s lawyer] that supervised access may avoid the applicant bringing further allegations of sexual abuse against the respondent. In other words, [the Father’s lawyer] suggested that supervised access is at least in part for the respondent's protection.
[114] I have considered the allegations advanced by the Mother, which were not verified by the CAS. The Society has, however, verified emotional harm to the children due to the conflict between the parents.
[115] While both parents provided pictures of the children, those are but a snapshot of a fixed moment in time. Some of the photographs showed injuries on the children, some showed happy and smiling children. Both parents provided diametrically opposed versions of events. As such, on a balance of probabilities, I am unable to find how the children’s injuries occurred or more importantly, whether or not one party is directly responsible for causing those injuries.
[116] I am not persuaded, on a balance of probabilities, based on the untested evidence before me, that the Father has physically abused the children or sexually abused Vivian.
[117] I do find that the children are at significant risk due to the continued conflict between the parents. However, a review of the file demonstrates that the children have continuously been at risk of emotional harm since the parties’ separation. This is not a material change in circumstances.
[118] I have considered the cases relied upon by the Mother. I am mindful that courts have often erred on the side of caution when dealing with allegations of abuse. In this case, the OPS and the CAS have both completed their investigations. Though the Mother was not satisfied with the end result of those investigations, I find that the investigations are complete.
[119] I note that in R.M., the Court cautioned the need for vigilance whenever the possibility of sexual abuse of the child exists, regardless of how remote the possibility is. The Court ordered supervised access. It is important to note that the Father in that case was requesting supervised access, in part to avoid any further allegations of sexual abuse against him. Additionally, the Court found it would be beneficial for an independent, trained individual to observe and report the children’s interactions with the Father. Here, the Father is seeking a return to the March Order, and I have the benefit of supervised access notes which speak to the children’s interactions with the Father.
[120] I have great difficulty reconciling the allegations of the Mother and the statements made to the collaterals such as Dr. Moncion with the children’s behaviours as set out in the Supervised access notes. The access supervisors are neutral in this dispute between the parents. I have no reason to disbelieve what is reported in the notes. The access visits are positive; the children are happy to see and spend time with their Father. There is no evidence of the children fearing their Father. The Father is appropriate, engaged, and loving. I find this evidence demonstrates, on a balance of probabilities, that the children are safe in their Father’s care.
[121] I am also not persuaded, on a balance of probabilities, that the Father has failed to comply with the children’s dietary restrictions.
[122] Therefore, I conclude that there has been no material change in circumstances from the making of the March Order. The onus was on the Mother to demonstrate such a change, and I find she has not discharged her onus.
[123] Having considered all of the evidence, as well as section 24(2) of the CLRA, I find it is in the children’s best interests to resume the March Order, with gradual reintegration as set out below.
[124] As a final comment to the parents, the Court is greatly concerned about the continued exposure of the children to post-separation conflict. The CAS has now made three findings that the children were at risk or are at risk of emotional harm. I implore the parents to recognize the errors of their ways and start afresh. Justice Kurz put it best when he addressed the virus of conflict: “Putting children in the middle of conflict, demonstrating that fighting and arguing is how adults manage their disputes, making children take sides in a lose-lose game, all corrode a child's emotional equilibrium. Children have no special mask or protective gear that can shield them from this type of virus”: Ivens v. Ivens, 2020 ONSC 2194, 40 R.F.L. (8th) 135, at para. 127.
Disposition
[125] Interim order to go as follows:
The Mother’s motion is dismissed.
The Father shall have access to the children, Vivian Coristine-Sears, born December 10, 2012 (age 7), and Tristan Coristine-Sears, born April 22, 2015 (age 5), as follows:
a. Wednesday from 4:30 p.m. until 7:30 p.m., commencing December 23, 2020, and every Wednesday thereafter;
b. Christmas day, December 25, 2020 from 10:00 a.m. to 5:00 p.m.;
c. Saturday, December 26, 2020, from 9:00 a.m. to 5:00 p.m.;
d. Commencing January 1, 2021, from Friday at 4:30 p.m. to Saturday at 11:00 a.m., and every Friday to Saturday thereafter for a three-week period;
e. Commencing January 22, 2021, from Friday at 4:30 p.m. to Saturday at 6:00 p.m., and every Friday to Saturday thereafter for a three-week period;
f. Commencing February 12, 2021, from Friday at 4:30 p.m. to Sunday at 6:00 p.m., and every Wednesday evening from 4:30 p.m. to 7:30 p.m., as set out in Corthorn J.’s March 6, 2020 order; and
g. Such further access as agreed upon by the parties.
- This Schedule shall be followed unless the parties agree otherwise or the Court orders otherwise.
Pick-Up and Drop-Off
- Pick-up and drop-off shall be supervised transitions and shall occur as follows:
a) At the Father’s residence, facilitated by a mutually agreed upon neutral access exchange person, with the expenses for this individual shared equally by the parties. Failing agreement, the parties shall use Brayden Supervision Services;
Conduct of the Parties
Neither party shall consume marijuana within 12 hours of the children’s time with that party or while in a caregiving role.
Neither party shall discuss adult issues with the children nor shall the parties speak disparagingly about the other party or their family.
Tristan shall attend counselling as soon as possible if he is not already doing so and as directed by the health professional by whom he is seen for that purpose.
Both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for Vivian.
[126] If the parties cannot otherwise agree on the issue of costs, they shall each provide, in electronic format, brief written submissions of no more than 3 pages, plus bills of costs, offers to settle, and case law. The Father has 30 days from the release of this Ruling. The Mother shall have 20 days thereafter to respond, and the Father has a further 5 days after the response is served to reply, if so required.
Madam Justice Hélène C. Desormeau
Released: December 21, 2020
COURT FILE NO.: FC-19-477
DATE: 2020-12-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Michael Sears, Applicant
AND
Sarah Linda Coristine, Respondent
BEFORE: Justice Hélène C. Desormeau
COUNSEL: Richard Bowles, for the Applicant
Ian Vallance, for the Respondent
HEARD: November 27, 2020, by Zoom
RULING ON MOTION
Madam Justice Hélène C. Desormeau
Released: December 21, 2020
[^1]: The Master’s endorsement of June 25, 2020 uses the term “suspension” while the Order replaces it with the term “stayed”. The parties agree that the issue on this motion is not about the word “stayed”, but whether the March Order resumes, whether the interim interim order regarding supervised access will continue, or what access is appropriate.
[^2]: After March 17, 2020, Covid-19 changed the landscape and the evidence from these two doctors reflects interviews and meetings not taking place in their offices or face-to-face.
[^3]: Mother’s counsel identified that there was an issue regarding indexing and/or bookmarking, which was rectified on or about November 5, 2020. It is not disputed that the records in plain format were with counsel since late September 2020.
[^4]: Mr. Brass is the Father’s criminal lawyer.
[^5]: Dr. Moncion is Vivian’s psychologist.
[^6]: Dr. Gunnink is the children’s treating family doctor.
[^7]: Dr. Goulet is Vivian’s concussion doctor and Medical Director of the CHEO Concussion Clinic, the Eastern Ontario Concussion Clinic, and the Pediatric Sports Medicine Clinic of Ottawa.
[^8]: In her affidavit dated August 21, 2020, the Mother also requested the appointment of a lawyer from the Office of the Children’s Lawyer (“OCL”) or a jointly retained lawyer as well as a Voice of the Child Report or a private assessment, but this was not pled in her Notice of Motion.
[^9]: This pre-dated the December 2019 motion.
[^10]: Emmanuella was the first access supervisor.