Court File and Parties

COURT FILE NO.: F11761/20 DATE: 2021-03-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brandon Pettit, Applicant AND: Magdalena Pettit, Respondent

BEFORE: Heeney J.

COUNSEL: Joanne Beasley, for the Applicant Jena Wagner, for the Respondent

HEARD: February 19, 2021, by virtual hearing

Endorsement

[1] This is a motion, brought by the respondent, to vary the interim order of Gorman J. dated October 14, 2020. That order provided that the applicant would have access to the children Sophia, born May 11, 2016, and Edison, born November 20, 2018, three weekends per month from after school (3:00 p.m.) on Friday until Sunday at 5:00 p.m., extended to Monday if Monday is a holiday. The parties were ordered to equally share all access transportation, with the one being responsible for pickup and the other being responsible for drop off.

[2] The respondent now asks that the applicant’s access be reduced to alternate weekends, and that those visits take place at the residence of his mother, Nancy Pettit, and be under her supervision. She also asks that the applicant be solely responsible for transportation.

[3] The applicant essentially asks that the order of Gorman J. continue. He does agree to have access at his mother’s residence, but firmly opposes the request for supervision.

[4] The order of Gorman J. was made on a contested basis following argument at a special appointment, based upon many affidavits filed, and factums from both parties. The order that Gorman J. made ̶ that the applicant have access 3 weekends each month ̶ was, in fact, the precise access that had been proposed by the respondent in her factum.

[5] The respondent’s request for a change in that order was clearly prompted by an incident where the child Sophia allegedly told the applicant that the respondent’s neighbour Bob had “touched her bum”. The applicant explains in his affidavit that he had initial concerns on December 27, 2020 when Sophia threw a tantrum, and complained that Mommy makes her call Bob “dad” and she didn’t want to, because she didn’t like him. She also “doesn’t like sleeping in his bed with him”.

[6] On the weekend of January 17, 2021, during an access visit, Sophie was again upset, and said that she did not want to go back to her mother’s because she does not want Bob to be her dad. She said that Bob touched her bum. When asked by the applicant what she meant, she said “my bum where I pee”. He asked her to show him, and she grabbed her crotch. He asked “how does he touch you”, and she said “he poked me”. The applicant got out his phone to record this and told her she could have a lollipop if she repeated it.

[7] The next day, January 18, 2021, the applicant reported this to the CAS.

[8] On January 21, 2021, the respondent had the applicant charged with criminal harassment, and two historical counts of assault with a weapon. The “weapon” in one instance was a towel and the other was a crumpled up bed sheet, both of which she alleged were thrown at her by the applicant, in 2016 and 2018 respectively. As to the criminal harassment, she alleges that the respondent had driven by her residence on December 26, 2020 following an access exchange; that on January 10, 2021, while she was driving following the pickup of the children at McDonald’s, she encountered the applicant in his vehicle at an intersection approximately 300 meters south of her home; and that Sophia told him on January 20, 2021 that the applicant made her show him where Bob lived, and that he later parked in Bob’s driveway to wait for him to return home.

[9] The applicant denies having criminally harassed the respondent, but could say very little about it given that the matter is now before the criminal courts.

[10] The CAS completed their investigation, but did not verify that the child had been sexually assaulted by Bob. They did express concerns, in a letter from Halton CAS to the respondent dated February 1, 2021, that the children “are being impacted by the post-separation conflict by Brandon”. Interestingly, they sent a letter to the applicant on the same date, where they did not attribute the conflict to the applicant, but were instead neutral in tone. That letter said the following:

After interviewing all relevant parties, the Society will not be verifying that Sophia was sexual assaulted.

The Society also investigated concerns that both Sophia and Edison are being emotionally harmed due to the ongoing exposure of conflict between yourself and their mother, Maggie Pettit. The Society has concerns that the children are impacted by the post-separation conflict and as such has verified this concern.

[11] The letter went on to define post-separation conflict as including “one or both parents making negative statements about the other”. This paragraph was also included in the letter to the respondent.

[12] As a result of the charges against him, the applicant was released on a recognizance that prevented him from having any contact with the respondent or the children, except pursuant to a valid order from a family court. Because of that, the applicant had no access to the children from the time of his arrest until the matter came before me on February 19. I ordered, in an interim interim basis, that access resume for the weekends of February 26 and March 5, at the home of Nancy Pettit and in her presence, pending release of my decision.

[13] The question now before the court is whether the best interests of the children require a change in the order of Gorman J.

[14] The respondent argues that the applicant fabricated the allegation that Bob inappropriately touched Sophia, and bribed her with a lollipop in order to get her to state the allegation while he recorded it. She also points to the charges now before the court to argue that the applicant presents a risk of emotional harm to the children, such that a reduction in access, and the imposition of supervision by the applicant’s mother, is justified.

[15] The applicant, on the other hand, explains that he was presented with a statement by Sophia that indicated that she had been sexually molested by the neighbour. It would have been negligent in the extreme for him to have done nothing. He had to act in order to protect the child. The first step in doing so was to record the statement that Sophia made. While offering her a lollipop to repeat her statement was a clumsy way of proceeding, it is understandable. His next step was to report the complaint to CAS. I accept that Sophia did, indeed, make the statement that she did, and I find that it was entirely appropriate that he reported the matter.

[16] The fact that CAS could not verify that Sophia was sexually assaulted obviously means that Sophia did not repeat the allegation to them. That does not mean, however, that she did not state it to the applicant.

[17] As to the charges that were laid against the applicant by the respondent, I am highly sceptical, both as to their substance and as to the motivation for the complaint having been made at all. The timing speaks for itself. The fact that the applicant was arrested on January 21, only three days after having made his compliant to the CAS on January 18, leads to the inference that these charges were a means of gaining a tactical advantage over the applicant. That is precisely what she achieved, in the short term at least, since the applicant was denied all access for more than one month thereafter. It is telling that she now complains for the first time about having been assaulted by the applicant in 2016 and 2018, yet it was she who, despite that alleged history, proposed that the applicant have unsupervised access on three weekends each month, in argument before Gorman J.

[18] I find no basis to change the order of Gorman J., except for minor modifications, and the motion of the respondent is dismissed.

[19] An interim order will go as follows:

• The applicant shall have parenting time with the children on the first three weekends of each month, with a weekend to be defined as commencing on the first Friday of the month, commencing March, 2021, from Friday at 3:00 p.m. until Sunday at 5:00 p.m., or Monday at 5:00 p.m., if Monday is a holiday;
• The respondent shall have parenting time with the children at all other times;
• The applicant shall pick the children up at the commencement of each access visit, at the children’s school/daycare;
• The respondent shall pick the children up at the conclusion of each access visit, at the home of Nancy Pettit. The applicant will not be present for these access exchanges;
• Access shall be exercised at the home of Nancy Pettit, but it will not be necessary for her to supervise the visits;
• The applicant shall have additional reasonable access to the children during holidays, to include one-half of the March school break;
• These access arrangements shall be reviewed following completion of the s. 112 clinical investigation by the Office of the Children’s Lawyer;
• The case is otherwise adjourned to April 23, 2021 to be spoken to.

[20] I encourage the parties to resolve the issue as to costs. If they are unable to do so, the applicant may make brief written submissions within 15 days, followed by brief submissions from the respondent within 10 days thereafter, and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved costs between themselves.

Mr. Justice T. A. Heeney Date: March 1, 2021