SUPERIOR COURT OF JUSTICE - ONTARIO
RE: G.S., Applicant
AND
S.B., Respondent BEFORE: Justice Engelking COUNSEL: Applicant, Self-Represented
Jennifer Jolly and Mary Cybulski, for the Respondent
HEARD: August 2, 3, 4, November 29 and 30, and December 1 and 2, 2022
REASONS FOR DECISION
1When determining a child’s best interests, clause (j) of subsection 24(3) of the Children’s Law Reform Act requires the court to consider:
(j) any family violence and its impact on, among other things,
(i) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) The appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child;
2Subsection 24(4) provides that in considering family violence under subsection (3)(j), the court is to take into account:
(a) The nature, seriousness and frequency of the family violence and when it occurred;
(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member,
(c) Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) The physical, emotional and psychological harm or risk of harm to the child;
(e) Any compromise to the safety of the child or other family member;
(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) Any other relevant factor.
3This is quite possibly the worst case of a pattern of coercive and controlling behavior by the Applicant father, G.S., towards the Respondent mother, S.B., that I have ever seen. The family violence perpetrated by G.S. has been serious and unrelenting for 11 years. The child who is the subject of this proceeding, J.C.B.S (hereinafter referred to as “J.”), who is almost nine years of age, has been emotionally harmed by it and continues to be at risk of emotional harm from it. G.S. is incapable of recognizing it and has taken no steps to prevent further family violence from occurring or to improve his ability to care for and meet the needs of J.
4For the reasons that follow, I make an order placing J. in the primary residence of S.B. with graduated, increasing parenting time to G.S., so long as certain preconditions are met. I also make an order granting S.B. sole decision-making authority over J., as well as an order regarding on- going child support.
Background Facts
5This matter was commenced by G.S. by application dated July 17, 2017, which was amended on September 25, 2020, pursuant to an order of Justice Blishen dated September 18, 2020, and again amended on December 9, 2021, pursuant to an order of Justice Shelston dated July 9, 2021. In his Amended Amended Application, G.S. seeks the following orders:
Sole custody (now decision-making authority) over the parties’ child, J.
Primary residence of J.
Permission to relocate to either Montreal or Athens, Greece with the child
Supervised access (now parenting time) for J.’ mother, and
Retroactive and ongoing child support for J.
6S.B. opposes G.S.’s application, in particular his request for permission to relocate the child. In her Amended Answer of December 14, 2021, S.B. seeks the following orders:
sole decision-making authority for J., or in the alternative, an order for parallel parenting
shared parenting time along with a holiday schedule
child support and proportional contribution to s. 7 expenses as of January 1, 2022, on a set-off basis on an imputed income to G.S or an average income over a 3-year historical period, and an order securing such support against his estate, and
a continued and final order restraining G.S. from communicating with her except by OFW regarding J. and to facilitate telephone calls with J.
7The relevant undisputed history is as follows:
The parties met in or about 2011. S.B. was a 19-year-old server and student; G.B. was the 37-year-old owner and operator of a nightclub. They had an off and on-again relationship for a couple of years.
The parties lived together for a very brief period from the fall of 2012 to April of 2013
S.B. discovered she was pregnant in April of 2013 and, by mutual agreement moved out of G.S.’s home and went to live in a townhome she shared with her mother.
J. was born in December of 2013. For approximately the first two years of J.’s life, he lived in the primary care of S.B. G.S. originally visited with J. in S.B.’s home, but by the time he was about a year and a half, J. started having visits, including overnight visits, at G.S.’s home.
By the time J. was approximately two and a half, this had evolved into a shared parenting regime, which continued to the summer of 2017.
S.B. was hospitalized for a week in July of 2017 due to a mental health crisis, during which she was diagnosed with a borderline personality disorder, adjustment disorder and alcohol abuse. After her release, G.S. would not agree to reinstate the 50/50 parenting schedule but insisted on access with J. by S.B. to be supervised by him or by S.B.’s father, C.B.
G.S. filed his original application on July 17, 2017, which was the same day of S.B.’s release from hospital.
On December 7, 2017, Justice Sheard granted a Final Order requiring the parties to communicate only by OFW, except in the case of an emergency, and to “delete any
electronic, digital, videos, media or photos of each other of a sexual or otherwise compromising nature.”
In 2018 and 2019, S.B. suffered from a substance abuse problem.
The OCL was appointed to conduct a clinical investigation in 2017. The investigation was not completed but a report was provided in June of 2018.
On May 23, 2018, Justice Ryan Bell granted a temporary order on consent of the parties for sole custody and primary residence of J. to G.S. with supervised access to S.B., either by him or the Supervised Access Centre at Family Services Ottawa.
Paragraph 5 of Justice Ryan Bell’s order provided: “the parties shall review the issue of access, with a view of increasing access, once the Respondent mother has successfully completed a rehabilitation program and can demonstrate she is no longer under the influence of illegal substances and/or alcohol.”
S.B. attended a residential treatment facility in July of 2018.
In January of 2020, S.B. entered detox for alcohol abuse and attended a residential treatment program at Homewood Health Centre in February of 2020. She has remained free of substances but for a one-day alcohol relapse in June of 2020.
In December of 2020, after an argued motion, Justice Parfett granted a new temporary order providing for S.B. to have unsupervised parenting time with J. on a gradually increasing basis by March of 2021.
From March of 2021 to July of 2022, S.B.’s regular parenting time with J. was to be every second weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. and every Wednesday from after school (or 3:30 p.m.) until the next morning at school (or 9:00 a.m.), as well as two telephone calls per week.
Justice Parfett also granted a temporary order restraining G. S. from contacting Ms. B except via OFW or to facilitate telephone calls with J.
The parties engaged Victoria Hasbani to conduct a s. 30 CLRA parenting assessment, the report of which was completed in December of 2021.
The matter was originally scheduled to proceed to trial in January of 2022. It was adjourned at the request of G.S. to peremptorily take place during the May 2022 trial sittings, however, was not reached during that list. The trial was then rescheduled to August of 2022.
On July 12, 2022, Justice Audet granted a temporary order increasing S.B.’s parenting time on alternating weekends to start on Friday at 6:00 p.m. and end at 8:30 a.m. or camp on Mondays, extending her time to Tuesday morning at 8:30 a.m. on the August long weekend, and providing her with a week of summer vacation from Friday, August 12, 2022, to 6:00 p.m. the following Friday.
The trial of the matter commenced on August 2, 2022. On August 4, 2022, G.S. had a medical health crisis, and on August 5, 2022, the matter was adjourned to the September 2022 trial sittings. As a term of the adjournment to the next sitting, I made a temporary
order that the parents would have parenting time on a week on/week off basis, with the exchange to take place on Fridays at the end of camp/school or at 6:00 p.m.
Immediately prior to the resumption of the trial, S.B. brought a motion for an order for the appointment of an Amicus Curaie.
G.S. did not appear at the September resumption of the trial. I heard the motion for appointment of an Amicus Curaie in writing. On September 22, 2022, my endorsement on the motion was released and an order for the appointment of the Amicus was made. Ms. Lisa Sharpe was subsequently identified as the Amicus.
The trial was adjourned to the next sitting for the Amicus to become acquainted with the matter.
On October 3, 2022, I released an endorsement in relation to additional terms of the adjournment.
G.S. then brought a motion, heard in writing, for an order that I recuse myself from hearing the trial. On October 31, 2022, I released my endorsement dismissing G.S.’s motion.
On November 29, 2022, the trial resumed. G.S. did not participate.
8By the time the trial resumed in November of 2022, S.B. had changed her position based on what had been transpiring since my temporary order of August 5, 2022, to one seeking that J. be placed in her sole care for a period of three months with no contact with G.S., to then revert to shared parenting if G.S. is able to demonstrate improvements and an ability to manage himself.
S.B. also definitively sought an order for sole decision-making authority to her.
9At the end of the trial, S.B. sought an urgent order placing J. in her sole care pending the release of my trial decision and requested an order for police enforcement of same. S.B.’s week of parenting time was to commence on Friday, December 2, 2022, at 6:00 p.m. and G.S. was messaging her that she would not be able to retrieve J. As had been the case various times since my August order, it was uncertain when S.B. might be permitted by G.S. to retrieve J. Additionally,
S.B. was extremely concerned as to the messaging J. was receiving and the pressure to which he was subject from G.S. Based on the evidence I heard at trial, I granted the urgent order.
Analysis
10Although the dynamics of the relationship certainly pre-existed S.B.’s initial hospitalization, the case began in earnest, both literally and factually in terms of G.S.’s control of J., in July of 2017. As is indicated above, after S.B. was hospitalized for a period of one week,
G.S., with no legal authority, refused to resume the shared parenting schedule which had been in place prior to S.B.’s hospitalization. From that date forward, to Friday, December 2, 2022, G.S. has used his physical control over J. to exert control over S.B.
11In addition to coercion, incessant harassment, surveillance, and disparaging S.B., G.S. has used threats to control and manage S.B. His most common threats involved a) involving police and having S.B. charged for her alleged threat to have him killed after April of 2018 (which he has done); b) contacting the media and/or making the matter public on social media, and sharing his perception of S.B.’s history of sex work, her struggles with addiction and her alleged threat to have him killed, c) disseminating intimate pictures of S.B. (which he has done), d) telling J. about his mother and everything she has done wrong and/or done to him (G.S.), and d) restricting and/or severely controlling her contact with J. (which he has done for years).
12As I have indicated, until July of 2017, S.B. and G.S. exercised a form of shared parenting of J., which had started in the summer of 2016, when J. was about two and a half years old. Although S.B. felt it important for J. to have a relationship and time with his father, she testified that during this period, G.S. never left her alone; he was obsessed with where she was and whom she was with. G.S. messaged her multiple times a day. Many of his messages were imploring her to get back together with him and reacting angrily when she declined. S.B. testified that after she went back to work and tried to start dating, things got much worse. G.S. started stalking her, watching her house, and sending her pictures of her driveway. He also would track down persons online that she was dating, contact them and threaten them or tell them how horrible she was.
13Entered as Exhibit #42 to the trial was a thread of text messages between G.S. and S.B. from the latter’s phone commencing on May 10, 2016 and ending on October 5, 2017. This exhibit is illustrative of the type of communication that was occurring between them during this period. G.S.’s texts are voluminous, often with between 5 and 10 texts sent by him in a row, minutes apart, some of which are very lengthy. They are demanding, at times disparaging towards S.B. and often aggressive. By contrast, S.B.’s responses are generally short, respectful, and polite. The first 31 pages of the exhibit are messages between May 10, 2016, commencing at 5:48 p.m. and May 13, 2016, ending at 4:57 p.m. During this 36-hour period, G.S. sent S.B. 342 texts, very few of which pertained to J. or his care. Most of the texts relate to G.S.’s obsession with the person S.B. was
seeing at the time and to his unrelenting effort to get her to reconcile with him. S.B. texted G.S. 139 times over that same period and most of her texts were about J. and his care. At least twelve times in this exchange, S.B. either requested that G.S. stop messaging her in the way he was or told him she did not want to talk about what he was talking about as follows:
May 12, 2016, at 11:25 a.m.: “Can you please stop with these messages? I’ll review the documents your lawyer sends.”
May 12, 2016, at 11:35 a.m.: “Anyway I’m not going to reply to any more messages on this topic.”
May 12, 2016, at 12:49 p.m.: “Told you don’t want to discuss more right now.”
May 12, 2016, at 6:40 p.m.: “Now, please stop sending me these kinds of messaging. I will ask my lawyer to get in touch with yours about it if it doesn’t stop.”
May 12, 2016, at 8:42 p.m., in response to G.S. stating that he would back off of the person S.B. was dating if she’d give him 50.1% custody, by not “busting ur balls every 15 mins”: “Not harassing me every 15 mins? You shouldn’t be doing that anyway. I’ll be talking to my lawyer about all this.”
May 12, 2016, at 8:45 p.m.: “I’ve had enough with the harassing messages.”
May 12, 2016, at 8:46 p.m.: “Ok. I’m going to ask once nicely for you to stop messaging me about anything not related to [j], his routine or schedule.”
May 12, 2016, again at 8:46 p.m.: “I will not be answering messages of this nature.”
May 12, 2016, at 8:48 p.m.: “Send my lawyer the agreement you made when it’s ready and I’ll review it then. I’m not continuing these conversations.”
May 12, 2016, at 9:13 p.m.: “Anyway I’m not going to discuss this anymore. This has been too stressful and I want to just focus on my work tomorrow and [j] this weekend.”
May 12, 2016, at 9:23 p.m.: “I am fine, but having this conversation at the time is causing me a lot of undue stress. So let’s leave it. You can decide what you want to do with your lawyer. I’ll meet with mine soon, if you do send the agreement I can review it.”
May 12, 2016, at 11:19 p.m.: “I am at home. I just went to get [J.]. I told you I just don’t want to discuss this further. Going to bed soon to be ready for work tmr.”
14At no time did G.S. respect S.B.’s requests. Indeed, he at times appeared to double down in his efforts to get her either to reconcile with him or tell him why she would not, all the while disparaging her for her dating practices. In this exchange, G.S. is incensed that S.B. will not take him up on his “offer” to have her back. Some of his messaging is, in fact, brutally abusive, as the following example demonstrate:
May 12, 2016, at 11:49 a.m.: “You have hurt me enough for ur selfish reasons. Wanna keep fucking him do it. Yes right now it hurts me because I convinced my self again I care about u to do this. Yes I’m jealous. I’m sure I’ll go back to where I was 6 months ago and not give a fuck.”
May 12, 2016, at 9:23 p.m.: “I’m gonna give u some advice. Just so you understand. Any guy u date…if I want to fuck [u over] all I need to do is talk to them. If we r not together and u meet a nice guy I won’t really have a reason to fuck u. But [A.]. I suggest u have him talk to me sooner than later. Oh I’ll trash u. So u are better off knowing if my trashing u will cost u [A.] now… than later. U date him… 3 months from now 6…Sooner or later I’ll talk to him. Are u sure what I say to him won’t affect ur relationship. Do u want to take that chance.”
May 13, 2016, at 10:22 a.m.: “The day will come that [j] will find out everything u have done to me. He will also learn that after everything u did to me I still tried 2 years in to still do this for him… so keep changing dippers and doing all the things you are doing knowing that there will come a day he will despise you. Everything that is happening right now I called it b4 he was born. Your [sic] going for one guy with money to the other. The funny part is that even when u have them they r not enough. Nothing u ever do I don’t see it coming and predict the outcome. Lets see when you [sic] dad’s “faith” runs out on you. My offer is done. You have hurt me enough again to not want to do this. Yes it would be fighting every day because you are a selfish person. All you care about is your self. Anything good you do for others there is an angle for you. I think that. You’re whole dad’s side of the family thinks that. Won’t be long with or without me b4 [A.] sees that and the next guy. You will never last with any guy. With new you had a chance to pull it through for [J.’s] sake. You didn’t want it. You don’t know what sacrifice is. If you had done what’s right for [J] is because others are watching. You can’t control the monster inside. So continue in this path and watch me get full custody. Not that you will care much. You know he will be well taken care off [sic] so you will justify that as well. Same way you didn’t care when he was sick. All you cared about was fucking [A.]. I will be adding more things to that aggremtn [sic]. And if you don’t like them I’ll take my chances in court. I really know in the end you don’t want him 24/7. That would mean no life for you. This is a lose lose for you and I will see to it. You have fucked me over countless time. But you have NEVER outsmarted me.
15The remainder of Exhibit #42 continues in a similar vein, though at times G.S. appears more able to focus on exchanging information about J. One gets the impression that those are times
when S.B. in not romantically involved with anyone. There is a large gap in the thread between October of 2016 and June of 2017, but when it picks up on June 24, 2017, G.S. is again berating
S.B. about a “guy”, and is again exerting pressure on her in this regard. On June 24, 2017, at 3:24 p.m., he writes: “U chose the guy again like every other time. We will all have to deal with the consequences including [J.]”, and at 4:26 p.m., G.S. writes: “It’s fucked. U are really fucked.” On June 28, 2017, at 11:54 p.m., G.S. writes: “And I know I know ur with him right now yet u don’t give a fuuuuuuuck.” Commencing at 12:30 a.m. on June 29, 2017, G.S. sends S.B. 14 messages, asking when she is returning home to [J.], ending at 9:58 a.m. with him stating: “Look how many times I’ve called u”. He earlier stated (at 2:45 a.m.) that he had called her “20 times” from his home.
16S.B. testified that this type of messaging form G.S. had an extremely detrimental effect on her health. She was afraid to leave her home as she was being stalked by G.S., she had terrible anxiety and became “pretty non-functional”. She, therefore, checked herself into the Queensway- Carleton hospital, from which she was released after a week.
17After S.B.’s release from hospital, G.S. became even more brutal in his communications with her when he believed she was lying to him about seeing someone. The following are examples of G.S.’s messaging, which include overt threats about her contact with J., G.S. implicating S.B.’s father in his plans, and numerous vulgarities:
July 16, 2017, at 10:35 p.m.: “U will not see [j] for a long time.
July 16, 2017, at 10:40 p.m.: “Just told your dad everything.”
July 16, 2017, at 10:56 p.m.: “I said lie to me again n u will lose him for good.”
July 16, 2017, at 10:57 p.m.: “And u will c him at ur dad’s when I give him to him.”
July 17, 2017, at 12:18 a.m.: “This bullshit that ur working on getting better won’t fly tomorrow.”
July 17, 2017, at 12:27 a.m.: “Can u fucking reply u fucking cunt so I can get some fucking sleep.”
July 17, 2017 at 12:28 a.m.: “U FUCKINF [sic] CRAZY FUCKINF [sic] CUNT”,
“I can’t stand u anymore”, “Cuuuuuuunt” and “Not enough that u fuck my friend not enough that u have been prostituting ur self u continue to fuck me.”
July 17, 2017, at 12:29 a.m.: “U are a cunt”, “Check Facebook u cunt” and “I blocked u.”
July 17, 2017, at 12:30 a.m.: “Watch what happens I was thinking u out of my life and [J.’s].”, “And I will c to it” and “Be a prostitute be w.e.u will stay the fuck away from my son.”
July 17, 2017, at 1:22 a.m.: “U know I’m thinking this is about a guy. U know ur dad will think the same. U know my behaviour is justified and what I’m thinking is justified yet u leave mekke this. And the only reason u would is if this is about a guy tonight. Nothing else explains it. Ur dad will back my desision [sic] tomorrow. U will not get alone time with [J.] for a very long time Was tonight worth it?
18And on it goes. A truly concerning aspect of this is that the above is only one method of communication G.S. was employing with S.B. He was also incessantly calling her on the telephone, as is noted in his texts, sending her voluminous messages on Facebook messenger, and sending emails to her. The onslaught would be truly unbearable for anybody, but all the more so for a young person suffering from mental health issues, to which G.S.’s presence in her life no doubt significantly contributed.
19After S.B.’s release from hospital, G.S. maintained a firm grip on his control over J. and only permitted S.B. to visit with him at her father, C.B.’s home, sometimes at her mother’s home, or at his home, and entirely at his discretion. This situation continued until the fall of 2020, except that he later refused for S.B. to visit at the homes of her family members or to have anyone other than him supervise. In the meantime, S.B. continued to struggle and became more and more despondent over her situation with J. She felt very ashamed and embarrassed that she was unable to see J. on her own, the child whom she had raised until July of 2017. It was at this point, late 2017 and into 2018, that S.B. began to really struggle with addiction issues, specifically to alcohol and cocaine, the latter of which she used between December of 2017 and the spring of 2018. S.B. indicated that G.S. presents her as having always struggled with addictions, which she states is untrue. However, she was abusing substances in the spring of 2018. It was also at this time that the ill-fated “death threat”, upon which G.S. relies so heavily to justify his subsequent actions, occurred.
20In addition to messaging and/or calling S.B. incessantly, G.S. also took to audio or videorecording conversations with those around him, including S.B., C.B., J., his lawyer, a hospital social worker and S.B.’s friends. G.S. sought to have numerous audio or video recordings entered as exhibits to the trial. On August 4, 2022, I delivered my oral ruling on the admissibility of 15 audio and video recordings (and/or transcripts) proffered by G.S. In it, I admitted a portion of a transcript of an audiotaped conversation on April 27, 2018, between G.S. and S.B.’s friend, Tiffany Sametz-Dinelle, namely, from page 37, line 11 to page 39, line 1 of Part 1 of the conversation1, not for the truth of its contents, but for the fact that the statement was made by Tiffany to G.S. It proceeds as follows:
TIFFANY SAMETZ-DINELLE: Apparently Jay (ph) can take care of you is what I – was heard.
G.S.: Jay (ph) can not take care of me. Yeah, the – he can try to take care of me, but he cannot take care of me.
TIFFANY SAMETZ-DINELLE: I don’t want to be part of it. It’s – you know what?
G.S.: Like, I don’t know what to do, like all I gotta do… TIFFANY SAMETZ-DINELLE: You know what?
G.S.: …is make one phone call right now, they’ll find out who these guys are, somebody’s going to go talk to them and if Jay (ph) moves, they’ll kill him.
TIFFANY SAMETZ-DINELLE: The thing is, is like…
G.S.: So, I’ve got to protect myself, and I’ve got to protect [J.] TIFFANY SAMETZ-DINELLE: Yeah. And…
G.S.: And – and again, her saying this doesn’t mean that he said it. This might be [S.] talking shit.
TIFFANY SAMETZ-DINELLE: So, she – you know how she’s been like cocky and confident and bitchy?
G.S.: Yeah
TIFFANY SAMETZ-DINELLE: She was like, “Well, for the first time, I feel safe against [G.]. I know that, like, Jay (ph) would do this if I asked him to.”
G.S.: Do what?
TIFFANY SAMETZ-DINELLE: Take care of you. G.S.: How is he going to take care of me?
TIFFANY SAMETZ-DINELLE: There’s one ending. G.S.: Eh?
TIFFANY SAMETZ-DINELLE: It’s one ending. G.S.: To kill me?
TIFFANY SAMETZ-DINELLE: Yeah.
21The above transcript reveals only that the statement made to Tiffany was that she “heard”, presumably, though not explicitly, from S.B., that Jay “can take care of you.” In this transcript, there is no evidence that such a statement or request was ever made by S.B. to Jay, the person whom she was seeing at the time. Indeed, Tiffany states that it could occur if S.B. “asked him to”, not that she had asked him to. There is no evidence that any direct threat of any kind was made by
S.B. Ironically, the only direct threat in this transcript is made by G.S. when he states that he could make one phone call and if “Jay moves, they’ll kill him.”
22Nevertheless, G.S. has since fixated on this information as being demonstrative of S.B. conspiring to have him killed. He has used it as leverage against S.B., including to coerce her into consenting to a temporary order in May of 2018 granting him sole custody of J. with supervised access only to her.2 G.S. threatened on many, many occasions to go to the police and/or have S.B. charged with a criminal offence in relation to this incident. Interestingly, he did not do so prior to obtaining her consent to the temporary order. He, did, however, go to the police later, first on June 14, 20183, and then on two more occasions subsequently, attempting to get them to lay charges against S.B. After speaking only to G.S., the police investigation of June 14, 2018, concludes with:
“Following a review of this occurrence, it was determined that a criminal offence did occur, however no chargeable suspect has been identified and there are no solvability factors present.” The police have never laid a charge against S.B. in relation to this alleged threat. When G.S. did not meet with success in this endeavor, he also laid a private information against S.B., which the Crown Attorney later stayed.
23S.B.’s evidence in relation to this issue is that she was seeing a Haitian guy, Jay, in the spring of 2018, which G.S. really didn’t like. J. was never exposed to Jay. S.B. was struggling with substance abuse and said something to Tiffany along the lines of “I wish someone would help me deal with G.”, while under the influence. She testified that it was a stupid thing to say and that she regrets ever having done so. She did not, however, request or instruct Jay to do something to G.S. and she doubted that Jay even knew G.S.’s last name. S.B. indicated that G.S. was pressing her friends for information about her, and playing them off against her, including Tiffany, who was already upset about her drug abuse. Tiffany was not produced as a witness by G.S. in this trial.
24In his affidavit sworn on January 11, 2022, which was entered as Exhibit #2 in the trial,
G.S. states at paragraph 24, b.: “In April 2018: the mother’s best friend informed me that S.B. had instructed her boyfriend at the time (who was a drug dealer and member of a dangerous gang in Ottawa and Montreal) to have me murdered, and he agreed to do it.” (Emphasis added). He then relies on an undated text exchange between him and S.B., which S.B. indicated was sometime in May of 2018 prior to Ryan Bell J. order, attached as Exhibit “F” to his affidavit, in support of his position. The exchange is as follows:
G.S.:
CAS just called Cslkig [sic] me back
Didn’t tell her yet for death threats 1:23 p.m.
But just the fact u are with drug dealer fear for [J.’s] life and asking me to relocate
They r getting back
Having that paper ends it.
But she’s still digging about drugs.
Coming to meeting me tonrorow [sic] for 3 hour meeting with [J.] 1:24 p.m.
Maybe Susan put it in her report to them.
I think they know. Talking to me about drive by shooting 1:26 p.m
Can’t fucking believe u have made such a mess fuck 1:28 p.m.
S.B.:
Then let’s sign something
They don’t need to investigate since [j] not with me
There are no threats and no need for moving etc as long as this gets shut down
1:31 p.m.
I repeat. There is no risk to you or [j] right now
I’m getting treatment yes. And no there was never risk of harm to [j] and not serious about that about you either
6:19 p.m
G.S.:
Clearly it was convincing enough for your best friends that have not spoken to me in 10 months to come to me. Their fear was real and so was mine. And b4 u try to drill your own friends know that I have TXT voice recordings of everything. I am trying to get you to give up now b4 Cheryl calls the pol (VIEW ALL)
6:29 p.m.
S.B.:
I have already said I will agree to your terms for now if you aren’t going to police
And by help I mean I’m, going to inpatient rehab And nothing is happening to you
So yes I’m willing to make whatever agreement 6:38 p.m.
But if she or you goes to the police or you put some of that info in a motion etc, then all bets are off. I’ll still go to treatment for myself and [j]. But won’t be making agreements with you if you do that
6:39 p.m.
You told me if I agree no police. Well I’m telling you I agree. At least until long term assessment and treatment completed. So there you go. I’ve admitted I need that and will be doing it.
6:40 p.m.
G.S.:
I’m saying is that if I see you trying to get better I will try for the police not to go further. I truly believe u wanted to off me and I didn’t sleep all night last night. Been in this business all my life and for the first time ever I was scared u manipulated this guy (VIEW ALL)
8:13 p.m.
S.B.:
So you’ve reported or not I’m going to a program But I need to know that 8:14 p.m.
G.S.:
I am not calling police I told u. Everyone is telling me to do it I won’t. But all this will be in motion that will be done within next 24 hours. What the judge does I don’t know. I sent those msgs to tel u that if u try to bullshit etc that’s when u might get fucked with the law. Show remorce [sic] get (VIEW ALL)
8:17 p.m.
S.B.:
Okay but if you’re sending all this info to judge it’s the same as police Your lawyer has it
8:39 p.m.
All you have to do for custody right now is cite my drug use And I told you I’m going to a program
8:40 p.m.
25G.S. relies on S.B. stating: “But if she or you goes to the police or you put some of that info in a motion etc, then all bets are off” (emphasis added) at 6:39 p.m. in support of his belief that S.B. intended to have him killed.
26S.B. testified that by the time of this exchange, she had already decided she needed treatment and was intending to go regardless of what G.S. did. She indicated, however, that if he intended to go to the police or to court, all bets were off in terms of her consenting to him having sole custody of J. S.B.’s testimony was that this is very clear from the contents of the exchange, that she was prepared to consent to something in the short term, as she was planning to go to treatment anyway, but if she had to go to court to defend herself, or if G.S. was going to go to the police, she was not going to sign any agreement. She indicated that her statement: “But won’t be making agreements with you if you do that” immediately following the “all bets are off” statement, make it abundantly clear that was what she was talking about.
27Indeed, the entire exchange is evidence of G.S. using a threat to go to the police or to put information about the alleged threat in court documents to obtain S.B.’s consent to him having sole custody and primary residence of J. As I have indicated above, G.S. did not go to the police prior to the order of Justice Ryan Bell being made. Obviously, G.S.’ assertion of power had the desired effect, as S.B. testified she consented to the temporary order contrary to legal advice.
28Interestingly, G.S. did go to the police in June, as I have indicated, notwithstanding that he said in this exchange that he would not do so if S.B. was “trying to get better”, which she obviously was. S.B. attended treatment at the Homewood Health Centre in July of 2018 and ceased to use
cocaine, though she testified that she remained “ambivalent” about total abstinence from alcohol until she reattended treatment in early 2020.
29S.B.’s father, C.B., also testified as to his understanding of the alleged threat made by her in relation to G.S. C.B. is an orthodox priest, and he indicated that as such he has both a personal and professional obligation to report to the Children’s Aid Society if he believes a child is at risk. He, in fact, did make one earlier such report to the CAS regarding S.B. when she was not doing so well. C.B.’s evidence in relation to the alleged threat, however, was that when G.S. made him aware that “S. tried to kill him”, C.B. spoke to S.B. to ask her about the safety of G.S. and J. He was assured by S.B. that there was no possibility of any risk from her saying anything to anyone.
C.B. indicated that when he attempted to tell G.S. that he was not at any risk, or that there was no threat against him, G.S. would simply not hear of it. In C.B.’s words, “G.S. held on to it at all costs.” Admitted as Trial Exhibits #1114 and #1125 are copies of text messages from G.S. to C.B. in which the former spends a great deal of energy attempting to convince the latter of S.B.’s “guilt” in this regard. C.B. indicated that he told G.S. many times that if he wanted to go to the police he should do so, yet G.S. continued to send C.B. lengthy, argumentative messages, often accusing
C.B. of lying or being prepared to lie to the police. C.B. indicated in his testimony that he was contacted by the Ottawa Police Services twice and each time simply told them what he knew. C.B. was also aware of the private information filed by G.S. It was his belief that neither the police nor the Crown pursued charges against S.B. because there was “presumably nothing to pursue.”
30Based on the evidence before me, I find that G.S. is not at any risk of harm from S.B., nor on a balance of probabilities has he ever been. G.S. has nevertheless fixated on S.B.’s alleged threat to have him killed, to the degree that it apparently forms part of the basis of his diagnosis of Post Traumatic Stress Disorder, which he has since approximately 2020 used to justify both his request to relocate with J. and his exercise of control over and/or his fear for J.
31G.S. has been seeing Dr. Dino Zuccarini since August of 2020, though he previously attended five sessions of couples counselling with him with S.B. in 2017. Dr. Zuccarini swore an affidavit on July 22, 2022, which G.S. sought to have admitted into evidence, and he also sought
for Dr. Zuccarini to be permitted to testify as a participant expert. Unfortunately, Dr. Zuccarini’s evidence was presented more as that of a litigation expert in the guise of a participant expert. In his affidavit, Dr. Zuccarini improperly purported to give evidence about S.B. and about J., the latter of whom he had never met. The degree of impropriety in Dr. Zuccarini’s affidavit evidence led me to the conclusion that his evidence overall, including that which might pertain to the diagnosis and treatment of G.S., was unreliable. On August 5, 2022, I released an endorsement on my evidentiary ruling regarding the admissibility of Dr. Zuccarini’s affidavit and his ability to testify in the trial, a copy of which is attached as Schedule “A” hereto.
32Frankly, my impression of Dr. Zuccarini is one of a highly aligned professional, who appears to have unvaryingly reinforced G.S.’s view of events, as opposed to having assisted him in considering other possibilities, obtaining some incite into his own functioning and/or finding ways to manage his own anxiety. Indeed, G.S. frequently references “D”, “Dino” or “Z” in his voluminous texts, Facebook messages or emails, as being in support of his position and/or view in all things. G.S. advised the s. 30 CLRA assessor, Ms. Hasbani that “both he and the psychologist [meaning Dr. Zuccarini] believe she has ASPD and is a sociopath.” Although hospitalized twice for mental health concerns, and followed by her own psychologist, who testified in the trial, S.B. has never been diagnosed with antisocial personality disorder or as a sociopath. As a result of my ruling, I have received no evidence from a reliable mental health practitioner for G.S. and am, thus, not aware of his current mental heath diagnoses, though it is clear to me that he suffers from serious mental health issues, not the least of which appears to be severe anxiety when feeling a loss of control.
33In the spring of 2018, a clinician from the Office of the Children’s Lawyer, Susan Woollam, was engaged in conducting a clinical investigation which had been ordered by then Master Champagne on November 21, 2017. Ms. Woolam did not complete her investigation as S.B. advised that she was going into treatment, but she did provide a report of the information gathered to that point.6 G.S. has fixated on the following statement made by Ms. Woolam at page 14 of her report, which he often repeats in his affidavits and verbal or written submissions: “She appeared to be more of an interested relative who was babysitting, than a mom.” This is perhaps
understandable, however, given how little S.B. was seeing J. at the time, and given that she was then very much in the throes of her addiction. Indeed, the assessment was disrupted for her to address her addiction. With respect to G.S., Ms. Woolam indicated at page 13:
Although Mr. [S.] has never been physical with Ms. [B.], he has had her followed, and made threatening and hurtful comments in communication with her. He appears unrelenting in communication when he wants Ms. [B.] to contact him. Mr. [S.] has been advised to stop communicating with Ms. [B.] in this manner but cannot seem to help himself. He appears at times to be extremely focused on Ms. [B.] and her life style. One wonders if he may be mixing up his concern about her mental health with feelings about his lost relationship with her. Mr. [S.] seems to feel that if he continues to pressure Ms. [B.] to get treatment by denying her access to [J.], she will get better and be the kind of parent he thinks she should be. Mr. [S.] blames Ms. [B.] for his aggressive behaviour making statements like, “she makes me act like this”, “I am going to blow”, “I can’t help it”.
34This, to me, is far more concerning than the statements made with respect to the stiffness of S.B.’s interaction with J. Nevertheless, the assessment was abandoned, and the temporary order of Justice Ryan Bell dated May 23, 2018, was made on consent of the parties. It provided that G.S. have sole custody and primary residence of J, with S.B.’s access set out in paragraphs 2 through 5 as follows:
- The Respondent mother shall have access to the child on a supervised basis for 2 hours every week, supervised by the Applicant father, until further agreement between the parties or further order of this court.
3.The supervision by the applicant father shall be carried out at a reasonable distance form the child and the Respondent mother so as to permit the child and the Respondent mother to interact appropriately as between them.
The Respondent mother shall apply for supervised access through the Supervised Access Centre through Family Services Ottawa. Once a spot becomes available, the Respondent mother shall have access to the child on a supervised basis for 2 hours every week, supervised by the Supervised Access Centre, until further agreement between the parties or further order of this court.
The parties shall review the issue of access, with a view to increasing access, once the Respondent mother has successfully completed a
rehabilitation program and can demonstrate she is no longer under the influence of illegal substances and/or alcohol.
35S.B. indicated that she consented to this order, contrary to the legal advice she was receiving from her then counsel, because she was about to enter a treatment program, and she believed that her access with J. would be revisited once it was completed. She did complete a residential treatment program in August, but her access was not revisited.
36S.B. did not apply to the Supervised Access Program at Family Services Ottawa as set out in paragraph 4 of the order, a decision which she in hindsight greatly regrets. Her evidence is that she was concerned that it would not be good for J. to see her only once weekly, and in an environment that was not familiar to him. She was also being told by G.S. that her time with J. would be very limited through the program, as opposed to seeing J. at his home, which she could do both more often and for longer periods. She additionally thought that her access would change as she continued to improve her circumstances. However, it did not change, and S.B. continued to see J. at the home of or in the presence of G.S. for the next year. Unlike in the period between July of 2017 and May of 2018, when S.B. was visiting with J. in the home of her father or her mother,
G.S. would no longer permit her to visit with J. with anybody other than him. S.B. testified that this was a particularly difficult period for her as, to see J. at all, she had to be with G.S., who interpreted either her or her family’s willingness to be with him as positive, and indeed, generous on his part. This is particularly true of S.B. accompanying G.S. and J. on a trip to Florida. S.B. testified that she did so for two reasons: first, G.S. was planning a trip with J. and stated to her in front of the child that she should come. J. became excited and she did not want to disappoint him. Second, S.B. indicated that she was being offered the ability to spend real parenting time with J. – full days, overnight, breakfast, dinner, bedtime – for the first time in three years, and she desperately yearned for it. All she has ever wanted is to be a parent to J., and so she took the opportunity to spend a few days with him in Florida, for half of which trip she and her then partner paid.
37As I have indicated above, S.B. had been ambivalent about abstaining completely from the use of alcohol after her treatment program was completed in 2018. She indicated that she never drank in front of J., indeed her time with J. was completely controlled by G.S., though he did encourage her to drink in Florida, which she did not do. S.B. testified that she would binge drink
from time to time, which she increasingly recognized as unhealthy. In late 2019, S.B. made up her mind to return to treatment to deal with her alcohol addiction. It was at this point that her father, C.B., recognized a real change in her and a true commitment to addressing her issues. She attended detox in January of 2020 and again attended a residential treatment program at the Homewood Health Centre in February of 2020. S.B. has remained sober since that date but for a one-day relapse with alcohol in June of 2020.
38Despite the changes in her life, G.S. still refused to reduce the supervision of or expand her access with J. He also continued to refuse her many requests to exercise it in the presence of her father and/or his wife, her mother or her then partner. This is particularly significant at it relates to C.B., as G.S. also began to restrict his access with J. in the spring of 2020, ostensibly related to COVID.
39Both S.B. and C.B. testified, and it is confirmed within some of the messaging in the documentation provided by G.S., that C.B. was very involved with J. throughout his life, essentially until the spring of 2020. First, S.B. and J. used to visit and stay with C.B. weekly when
J. was a baby. This morphed into J. staying with C.B. on weekends without S.B. Once the parents moved to a 50/50 schedule, this continued, regardless of in whose care J. was. Even after J. was primarily in G.S.’s care, he would still spend time weekly with C.B. This included overnights on almost every Saturday, as G.S. was often working at his nightclub. J. was part of C.B.’s church community on Sundays, and because C.B. regularly had Mondays off, J. would sometimes also spend them with “Pa”. C.B. and his wife were authorized to pick up J. from his school and C.B.’s wife was even authorized by G.S. to attend J.’s parent/teacher interviews. C.B. was authorized and did take J. to medical appointments.
40In 2020, however, two things happened: 1) C.B. began to support S.B., and 2) the pandemic. Between mid-2017 and late 2019, C.B. shared many of G.S.’s concerns about S.B., and
G.S. saw him as an ally. Indeed, G.S. frequently communicated with C.B. about S.B. and what from his perspective was wrong with her. He also shared either things C.B. said about S.B. or things he perceived C.B. to have said about S.B. with her. However, C.B.’s evidence was that once he saw S.B.’s commitment to tackling her issues in late 2019 and he began to fully support her in doing so, G.S. ceased to see him in the same light. Although J. had to that point a very warm and
loving relationship with his maternal grandparents, via frequent and extended contact, G.S. put a stop to it. G.S. justified the restrictions on C.B.’s time with J. by reference to the COVID-19 pandemic, however, C.B. testified that throughout the pandemic, he was following three sets of stringent COVID protocols - those of the Ontario government, those required by the Pennsylvania Bishop of his ministry, and those of the Anglican church his congregation was renting. Notwithstanding this, G.S. made is very difficult for C.B. to see J. after March of 2020, and he saw little of him until S.B. obtained unsupervised and extended access by virtue of Justice Parfett’s temporary order of December 17, 2020. Like S.B., C.B. could only see J. at G.S.’s home and usually in his presence. Throughout the entire time that S.B. or her family members visited with J. at the home of G.S., be it between July of 2017 and May of 2018, or from May of 2018 to December of 2020, G.S. seemed to think that their willingness to attend his home or participate in special occasions, such as a birthday or Christmas celebration, signalled acceptance of the situation. It did not; however, it was the only way people to whom J. was important could spend any time with him at all.
41In May of 2020, S.B. and her partner with whom she had been living for a time separated and S.B. got her own apartment on Bronson Avenue. G.S. was not happy with this development and insisted that S.B. was reverting to her “old ways” of using substances and/or seeing men. During this same period, although she had to travel from downtown Ottawa to almost Kanata to visit with J. at his home, G.S. would not permit her to take public transportation due to COVID risks. S.B. was no longer being driven to her access by her former partner, and so she bought a bicycle and started riding to Kanata. Unbeknownst to her, this extreme physical activity exacerbated what turned out to later be diagnosed as endometriosis. While she was experiencing significant pain and was frequently attending the hospital to determine its cause, G.S. continued to inappropriately communicate with her and accuse her of many things, most notably of abusing substances. He did not believe that she was attending hospital for anything other than mental health or substance abuse issues. G.S.’s approach, of course, contributed to her difficulties.
42G.S. was also sending lengthy text or other messages to C.B. throughout this period, which were overwhelming and at times abusive. Being on the receiving end of same, C.B. began to understand to what S.B. had been subjected for many years, and he also began to realize that G.S. had been and was still negatively affecting S.B.’s mental health. In the summer of 2020, he and
the other of S.B.’s supports decided that enough was enough and steps needed to be taken to get
S.B. out of the situation in which she found herself. It was at this time that S.B. retained her current counsel and decided to bring a motion requesting an order for more expansive and unsupervised access. It was also at this time that CAS of Ottawa became involved based on a referral from the social worker at the hospital regarding concerns for S.B. being the subject of domestic violence. Pending the motion, and with the encouragement of the CAS for S.B. not to exercise access in the presence of G.S., S.B. also arranged for her existing access to be supervised by Brayden Supervision Services. Although this meant not seeing J. for a period while it got organized and restricting her access to J. once it got started, she finally ceased visiting with him at G.S.’s home or in his presence. G.S. often accuses S.B. of “abandoning J.” or of not wanting to see him during this period, notwithstanding he left her little choice, as he would not agree to any supervision of her access other than by him or a supervision service. This was also at a time when the need for supervision, if it ever existed, was long, long past.
43Just as G.S. had restricted C.B.’s contact with J. based on COVID risks, moreover, he also interfered with S.B.’s supervised access with J. by insisting on a “no touching rule” at the visits. This made it awkward for J., but S.B. enforced the rule out of fear that G.S. would otherwise not permit the access to occur. G.S. was, however, very arbitrary about his own rule, on two occasions allowing J. to give S.B. a hug at the end of a visit (September 25, 2021, and October 30, 20217), to only then insist that the rule apply at the next visit. Both the restrictions on C.B.’s contact and the “no touching rule” were, moreover, also happening when G.S. was traveling to Montreal with
J. to visit family and sending back pictures of the child hugging his cousins. As with everything else, G.S. used the COVID-19 pandemic as another tool by which to limit and/or control S.B.’s interaction with J.
44Two things, however, happened because of Justice Parfett’s temporary order of December 17, 2020. The first is that S.B.’s access to J. was expanded to gradually include overnight visits, and the supervision was lifted. By March of 2021, S.B.’s court ordered parenting time was every Wednesday from after school until Thursday morning at school, and every second weekend from
Saturday at 10:00 a.m. to Sunday at 6:00 p.m. Justice Parfett’s temporary order also included the following provisions relating to S.B.’s parenting time:
Exchanges will occur at the school or at the home of the Applicant, if school is not in session or it is a weekend. One of the Respondent’s support persons should be present for the exchanges.
The Respondent can designate one of the following people to assist her with transporting the child from and to parenting time: [C.B.], [(his wife), M.C.B.] or [(S.B.’s mother M.M.].
C.B., M.C.B. or M.M. are designated as persons who can assit the Respondent in caring for J.C.B.S. They can be present in her home or at events where the Respondent is also with J.C.B.S. These persons will wear a mask if they are inside or in an enclosed space, such as a car, with the child until such time as masks are no longer recommended by public health authorities in Ontario or pursuant to a court order.
The Applicant will facilitate telephone access between the Respondent and the child every Monday and Thursday at 7:00 p.m. He will allow the call to take place in [J.’s] bedroom, in private and he will not interfere with or interrupt the call.
The Applicant will unblock the Respondent from [J.’s] phone such that she and J.C.B.S. can send text messages and voice memos.
If the Respondent or her three support persons as noted above travel outside the National Capital Region, with the exception of travel to Carleton Place and/or Brockville, Ontario, the person or persons who travelled will not have contact with J.C.B.S. for 7 days following their return to this area. This provision will remain in place until public health authorities in Ontario declare there is no longer any significant risk of contracting Covid-19 or the parties consent or there is a court order.
The Respondent shall not consume alcohol or non-prescription drugs in the 12 hours preceding her parenting time with J.C.B.S. and not during her parenting time.
10, The Respondent will continue with random drug and alcohol testing and will provide the Applicant with the results of the tests on a monthly basis. If any test should return positive, the parenting schedule as set out in this order will be suspended until the Respondent can demonstrate she has had two consecutive negative drug and alcohol tests that are taken a minimum of a week apart. While the order is suspended, the Respondent can continue to see the child twice a week
(Wednesday and Saturday) at her home from 3:30 to 7:30 pm, supervised by one of her three support people.
45S.B. testified that since the order of Justice Parfett was granted, she has never, of her own accord, missed a visit. Indeed, she indicated that she has never even been late by ten minutes. Any parenting time she has been unable to exercise, more about which I will speak later, has been because of actions taken by G.S.
46S.B. has also continued to provide negative drug and alcohol tests since the temporary order was made. To date, S.B. has missed only one test, on March 30, 2021, which she testified was because she did not receive the notification from DriverCheck. She completed the test the next day and has had no other missed tests. S.B. testified that later in 2021, G.S. expressed that the monthly drug tests ordered by Justice Parfett were not satisfactory to him and that he would only be satisfied with hair follicle testing. She set this up through “DriverCheck”, the same agency she had been using for breath and urine testing since August of 2020, and ensured that G.S.’s then counsel had direct access to the test results8. Although hair follicle testing is typically done once every three months, G.S. also decided that he required test results once every two months. S.B. has, therefore, been doing that since August of 2021. She indicates that such testing costs over $500 each time and provided an invoice to demonstrate this.9 It has also caused her to lose a significant amount of hair, as a good chuck is cut out each time. All tests conducted have been negative for drugs and alcohol.10
2020, December 29, 2020, January 4, 2021, January 25, 2021, February 2, 2021, February 18, 2021, March 9,
20221, March 30, 2021, April 1, 2021, April 8, 2021, April 19, 2021, May 7, 2021, May 31, 2021, June 28, 2021,
July 27, 2021, and hair test results for August 9, 2021, September 8, 2021, November 10, 2021, January 7, 2022,
March 10, 2022, April 7, 2022 and June 22, 2022, Exhibit #63, DriverCheck hair test results from August 8, 2022 collection, Exhibit #10, DriverCheck hair test results from November 8, 2022 collection.
47The second development was that Justice Parfett granted a restraining order against G.S. Paragraph 11 of her temporary order provided:
- The Applicant is restrained from contacting the Respondent except via Our Family Wizard and to facilitate the telephone calls with
J.C.B.S. The Applicant is prohibited from texting, emailing or other wise contacting the Respondent. The Applicant shall not attend within 100m of the Respondent’s place of residence, employment or any other place she may be, except for court ordered schedule exchanges, and school events provided that the Applicant does not approach or attempt to interact with the Respondent.
48S.B. testified that for the first time since she met G.S., she felt that she was able to live her own life. G.S. was no longer permitted to attend her home, which he had been randomly doing at her Bronson Avenue apartment. Nor was he able to interfere in her work life or dating life. His communications, moreover, were restricted to only by OFW, and only about J. She was no longer subject to his incessant telephone calls, texts, Facebook messenger messages and emails. She was no longer under constant pressure to respond to his multiple calls and messages when he wanted something. She was no longer subject to his scrutiny about how she looked, how she was dressed, whom she was seeing, where she was going and what she was doing with J. S.B. testified that for the first time since she was 19 years old, she has “been able to live and work with a little bit of personal freedom.”
49To a large degree, this was true. S.B. was able to spend more time with J., when G.S. facilitated it. She was able to develop and nurture her relationship with him. She was able to go to work and come home normally. She was able to eventually enter a relationship with her now partner, Wade, a man whom she met at Homewood in 2020. However, S.B. remained vulnerable to G.S.’s physical control over J. and to his messaging, this time via OFW.
50S.B. indicated that visits immediately went well with J. once they started unsupervised. J. was always happy and excited to see her. She had no parenting issues with him. She did, however, have issues with G.S. overholding J., frequently based on him supposedly exhibiting “COVID symptoms”. G.S. also either kept J. from school on Wednesdays or insisted that J. first come home after school and be picked up at there. Although he did not abide by the order as it pertained to pick up at school, G.S. insisted on the order being followed to the letter by S.B. On one occasion,
S.B. rented a cottage in the Outaouais region of Quebec, about one half hour from Gatineau, which she thought was in the National Capital Region as per paragraph 8 of Justice Parfett’s. S.B. testified that she was alone in her apartment the week before. Nevertheless, after going to the cottage, G.S. required her to isolate for seven days upon her return, thereby having to miss her limited time with
J. G.S. also interpreted Justice Parfett’s temporary order as not permitting her to travel to Carleton Place without being subject to isolation for seven days, which is, of course, the complete opposite of what the order states. In the spring of 2021, when J. was home and attending school virtually,
S.B. offered to take him earlier or keep him longer to assist, which offer G.S. refused. In the fall of 2021, J. had nine absences from school, five of which were on Wednesdays. When S.B. required the assistance of her father to pick up J. from school, G.S. began to insist that J. bus home first or that J. choose whether he wanted to bus home or be picked up by “Pa” at school. G.S. would also sometimes book activities for J. on Wednesday, such as karate, and he would also spend long periods of time on the telephone with J. on Wednesday evenings, which of course interfered with S.B.’s time with him.
51G.S. has also continued to communicate inappropriately with S.B. via OFW. He has frequently complained to her about Justice Parfett’s restraining order against him, which he believes is unjustified. He has written to her on OFW talking about moving to Greece, with or without J., about J. turning on her, about S.B. trying to kill him and about his version of their history. Many of his messages have nothing to do with J. or any logistics relating to his care or scheduling, which are, frankly, the only things G.S. should be talking to S.B. about on OFW.
52Regardless, S.B.’s parenting time with J. continued as per the temporary order of Justice Parfett. Notwithstanding that she had continued to test negative for drugs and alcohol, and that her time with J. was going very well, but for three extra nights in the summer of 2021, G.S. did not agree to any expansion of her parenting time. S.B. did, however, consent to G.S. travelling with J. to Greece to visit his parents, despite that she would be losing some of the little parenting time that she had, which G.S. did not make up.
53In June of 2021, the parents agreed to a s. 30 of the CLRA assessment being conducted by Ms. Victoria Hasbani. Ms. Habani’s report was released on December 31, 202111, immediately before the January 2022 trial sittings, at which this matter was scheduled to proceed. At the request of G.S., and on motion, the trial was adjourned to the May 2022 sittings.
54Emanating from her interview with J., Ms. Hasbani noted certain concerns in the body of the report that: 1) J. was told by G.S. that they needed to move to Greece to take care of his paternal grandparents “who might fall on the ground and no one is going to be there to help them, (page 23); 2) J. stated in response to a question from her that coming home from school on his mother’s parenting time day was daddy’s idea (page 22); and 3) J. stated that G.S. had spoken to him. about a 50/50 week on/week off schedule and he said: “one things for certain; I don’t want it” (page 23).
55In the “Analysis/Conclusions” section of her assessment, Ms. Hasbani noted inter alia, the following:
A considerable amount of [Mr. S.’s] focus has been around the abuse and trauma he has experienced which stemmed from Ms. [B.’s] infidelity, drug abuse and mental health issues. He provided countless examples, pictures and videos, stemming back to up to 10 years ago. This information, while he is of the opinion is currently relevant to establish [Ms. B.’s] character as a person and mother, is dated. [Ms. B.’s] presentation as a parent today, as opposed to when she was unwell, is very different. (Page 43)
56Regarding G.S.’s “allegation that [Ms. B.] conspired to have him killed, Ms. Hasbani noted:
[Mr. S.] recently wrote to this Writer saying: “In order for what I ([Mr. S.]) recommend to happen, you need to set the record straight…And making it clear that you think she did try to kill me suggesting deeper mental issues would do it…There. This is how I stay and drop criminal charges. Does this work for you?” This form of bargaining statement has also been made to [Ms. B.] and her father repeatedly. [Ms. B.] expressed feeling that this is a form of intimidation and threat not only to her, but her family.
It is important that [Mr. S.] recognize that [Ms. B.’s] involvement in [J.’s] life should not be dependant on whether or not he seeks criminal charges, nor whether [Ms. B.] admits or recounts events he feels are lies. A child’s relationship with their parents needs to be completely independent of the high conflict issues between the adults. (Page 43)
57Later, on page 44, Ms. Hasbani noted: “While [Mr. S.] indicated that he continued to fear for his life and [J.’s], limiting [J.’s] access to his mother based on this fear, is unreasonable in this Writer’s view.”
58With respect to S.B.’s mental health, Ms. Hasbani indicated at page 45 that “has been engaged in consistent and sustained individual and group treatment for 2.5 years”, with Dr. Gagnon, who also testified in this trial. She continued at page 46 to state:
[Ms. B.] has addressed and continues to address her mental health issues. Over the years, she has accessed different supports and taken medication. [Ms. B.] presented herself to her family physician or to the Emergency Department when she was not well. She has sought treatment for the diagnosis of BPD and still sees her psychologist. Given her history, it is likely that she would access supports should her mental health deteriorate.
59With respect to S.B.’s additions, Ms. Hasbani indicated on page 47 of the report:
Every urine and hair follicle test has resulted in a negative reading. By her own account and accounts of the professionals involved, along with her family members and partner, [Ms. B.] had maintained sobriety. She is committed to her journey and accesses support regularly.
…It is this Writer’s view that [Ms. B.’s] addiction issues are being well- addressed and supported. She has accessed her support system but also treatment when her use was problematic. It will be vital that [Ms. B.] reach out for help should she experience decline.
60Regarding G.S.’s request to move with J. to Greece, Ms. Hasbani wrote:
In considering this request, it is important to recognize the importance of [J.’s] relationship in this area. He has a strong relationship with his mother and extended family. For years, he spent weekends with his maternal grandparents. He has connections to friends, school and other family members in Ottawa.
Moving to Greece is a great distance from Ottawa. [Ms. B.’s] parenting time would be substantially limited. While [Mr. S.] wrote to this Writer, “I can promise you she would have more access than anyone else that ever moved away. I would see to that”, this Writer is skeptical in consideration of the demonstrated history of conditions already surrounding time between [J.] and his mother. He also has strong opinions on her mental health, substance use and relationship with men. As the Children’s Aid Society noted, this Writer is also of the opinion
that [Mr. S.] would struggle to manage [J.’s] access with [Ms. B] and her family due to the high conflict between them.
It is not in the Writher’s view that relocating [J.] to a different country, would be in his best interests. (Page 49)
61With respect to S.B.’s parenting time, Ms. Hasbani wrote at page 52: “While there was evidence in the past to suggest that [Ms. B.] was not in a position to parent., at this time there is no evidence to suggest that restriction in [Ms. B.’s] time with J. would be in his best interests.”.
62Ms. Hasbani recommended that these parents with have joint decision-making with the involvement of a Parenting Coordinator, or parallel decision-making with the involvement of a Parenting Coordinator. She also recommended a 50/50 schedule of parenting time, with a gradual increase in S.B.’s parenting time, starting with an immediate increase to every second weekend from Friday to Sunday, then increased to Friday to Monday until arriving at a 2/2/3 schedule in the summer, with two one-week periods of uninterrupted time for each parent in July and August and shared holidays, either on a split or in alternating years.(Page 54)
63Ms. Hasbani also made several corollary recommendations, including that communication between the parties be limited to any necessary decisions for J. and that G.S. not communicate with any members of S.B.’s family. Ms. Hasbani also recommended that S.B. “continue with hair follicle testing until she reaches 2 years of sobriety”, which has, of course, long passed. (Page 55)
64On page 56, Ms. Hasbani made the following final recommendations:
l. It is recommended that neither party expose [J.] [to] their adult issues and situation, nor question J. about his time with the other parent, or make suggestive or directive comments about his time with the other parent.
m. It is recommended that the parties continue to use Our Family Wizard but limit content to only pertinent information about J. They should limit communication to 2-3 sentences.
65In relation to J.’s exposure to parental conflict, Ms. Hasbani noted:
In conclusion, what is consistent with these parties is that they have both demonstrated their love and commitment to J. J. is a well-adjusted
young boy who know he is love and cared for by his parents. J. is not aware of the level of conflict his parents are engaged in. For the most part, they have both protected him from their own feelings about each other. This is a notable strength of both these parents.
66Unfortunately, this has not remained the case. S.B. testified that in the spring of 2022, when she and C.B. picked J. up, he stated in the car: “I need to keep my phone on the bedside table to phone daddy in case of an emergency.”. S.B. explained to J. that their practice was to leave his phone on the entry way table and that at her house, he can come to her in the case of an emergency. Around that same time, S.B. notice hushed whispering when she went to say: “time for bed” to J., and he stated: “Daddy’s telling me to call him back after you leave my room.” S.B. noted that when J. first started visiting with her, he slept well at her home. However, she began to more recently notice that J. was sleeping poorly, and he seemed to become sleep deprived. She then discovered that G.S. had been telling J. to call him in secret after they had gone to bed.
67Although she was reticent to do so, as she has generally respected J.’s privacy, S.B. did check J.’s phone and take some screen shots of messages between G.S. and him. On March 30, 2022, there is a message from G.S. at 10:28 p.m. telling J. to “CALL BACK”.12 There is an exchange, which includes a voice text from J. to G.S., followed by G.S. stating “I don’t want to get you in trouble” and “Go to sleep lol”, which is at 11:11 p.m.
68On April 27, 2022, after J. advised G.S. that he wanted to get off the phone and do something with S.B., there is a series of messages on his phone from G.S. at 7:32 p.m., twice at 7:33 p.m. and 7:49 p.m. (so four times in a row) which all state: “CALL BACK”, followed by another message from G.S at. 8:43 p.m. stating: “You upset Me yesterday with what you said and now this.”
69On May 21, 2022, at 7:11 p.m., G.S. sent a message to J. of “CALL BACK”, and then again at 8:02 p.m., he messaged “CALL BACK”, and “I tell you what you’ve been doing is not cool and that I’ve told you before it’s not cool and you just hang up on me like that”, to which J. responds: “I’m sorry” and G.S. states: “U hurt daddy (emoji)”.13
70S.B. testified that messages like these make J. feel not good. She indicated that they sometimes only come to her attention because J. is upset. She has also witnessed G.S. get upset with J. when he wants to get off the phone with G.S. She recalled many times when J. was visiting at her Bronson apartment that G.S. would tell J. he had to be the one to end the call, which only made J. feel guilty. When S.B. first started having Wednesday evening visits subject to the temporary order of Justice Parfett, she attempted to manage phone calls by G.S. by agreeing upon a time. S.B. did not think a call was necessary because she only had a few hours with J., but she agreed in the hopes that it would placate G.S., who would otherwise bombard her or J. with calls.
G.S. neither respected the time nor that any limits be placed on the length of his calls.
71G.S. has additionally continued to message S.B. inappropriately on Our Family Wizard. Notwithstanding Ms. Hasbani’s recommendation to limit messages and keep them focused on J.,
G.S. sent S.B. a five-page letter in April of 2022 full of vitriol attached as a PDF to an OFW message.14 S.B. finally tired of receiving this kind of messaging from G.S. and made a report to the police this fall. G.S. has, consequently, recently been charged with breach of Justice Parfett’s restraining order.15
72S.B. has also become increasingly concerned about J. and the negative messaging he receives about her, or about his time with her from G.S. An extremely telling example is with respect to what transpired when S.B. took J. to Bluesfest this summer in July to see her partner, Wade’s, band play. Coincidentally, Wade’s band was scheduled to play when S.B. had parenting time with J. They, therefore, planned to go and see him play, and J. was extremely excited about it. S.B.’s two sisters and her brother-in-law were in attendance, as was C.B. S.B. and Wade took
J. out for dinner and had a really nice time with him. They then met with the family, and J. joined them for the concert while S.B. spent part of the time backstage with Wade. S.B. testified that she did not take J. backstage, because she was unfamiliar with what it would be like and needed to see it for herself first. She felt it would not be a responsible thing to do. The arrangement was, therefore, that J. would be with the family out front and that S.B. would check in with them from time to time. C.B. testified that J. loved the concert and the experience of Bluesfest. He was on his
“Pa’s” shoulders and was hitting balloons with the boyfriend of a high school friend of S.B.’s that they met there. According to C.B., it was a lot of fun and J. had a great time. The plan for after the concert was for C.B. to walk J. back to the apartment on Bronson, where S.B. would join them.
C.B. indicated that J. did not articulate any worries or negativity until they were almost home, when he started to get agitated and was talking about needing to call his father. As they were walking up to the apartment, J. started to say he was upset with S.B. because she wasn’t with them during the concert part of the evening. His upset grew until he was on the phone with G.S. C.B. indicated that during the phone call, it was very upsetting to hear the anger J. directed at S.B. He stated that rather than calm or redirect J., G.S. reenforced how terrible his mother had been. C.B. indicated that if he had not been at the concert and witnessed J. “having a blast”, he wouldn’t have thought it was the same evening or that he was at the same event. C.B. stated that as bad as having to hear the phone call was, the more striking thing was that as soon as J. put the phone down and was done with it, he was relaxed and fine again. No anger at S.B. was apparent in him after the phone call was over. Both S.B. and C.B. testified that it was extremely upsetting that G.S. ruined what was supposed to have been a very special evening for the whole family.
73G.S. also ruined what was supposed to have been S.B.’s week of summer vacation with J. at her family’s cottage in New Brunswick. On July 12, 2022, Justice Audet released an endorsement which expanded S.B.’s time with J. pending the trial to include every second weekend from Friday to Monday morning, and for “one complete week of summer vacation with the child, starting on Friday, August 12, 2022 at 6 pm until the next Friday at 6 pm”.16 In her endorsement, Justice Audet stated: “In the context of this motion, the mother is only seeking a modest increase of her parenting time during the summer, namely, extended weekends from Friday at 6:00pm to Monday at 7:30pm, in addition to the child’s regular Wednesday overnights with her, and one full week of summer vacation with the child to travel to her family’s cottage in New-Brunswick.” However, while she did order one week of “vacation”, Justice Audet did not specifically state in her order that S.B. would be permitted to travel to New Brunswick during that week with J., nor did she vary the previously existing provision in the temporary order of Justice Parfett dated December 17, 2020, which provides that: “Neither party can remove the child from the jurisdiction
without the written authorization of the other party, consent not to be unreasonably withheld. The party travelling with the child must provide the other party with proof of return tickets, itinerary and contact information.” When it came time for S.B. to retrieve J. on August 12, 2022, G.S. first withheld him for two days, ostensibly because he was ill, and second, refused to consent to S.B. travelling outside of the province with him. S.B. was devastated as this would have been the first time in several years that she could enjoy this type of trip with J., which she had done twice previously when he was a young child. Her partner, Wade, came down and they discussed other plans, perhaps a short trip to Toronto or Niagara Falls. When J. talked to G.S. on Sunday evening, after she had managed to retrieve him, however, he mentioned to his father that they were planning to drive to Toronto the next day. G.S. “freaked out” on OFW, again relying on Justice Parfett’s temporary order, and threatened S.B. with an amber alert “with yours and Wade’s description”.17
74S.B. did not end up travelling anywhere with J. on her one week of vacation with him. On September 23, 2022, the parties appeared before me to seek clarification of her ability to do so, and given the provisions of the December 17, 2020, temporary order and that there was no motion before the court, I was not prepared to change the order. However, in my endorsement, I indicated: “Having said that, I have encouraged the parents, particularly Mr. S. to consider the potential benefits to J. of having such a vacation with his mother and her family.” G. S. has not done so. Indeed, given what has transpired since August 5, 2020, I am of the view that G.S. is incapable of making decisions which are in the best interests of J., and that his extremely disruptive behaviour, interference with S.B.’s parenting time, and negative messaging are causing psychological harm to J.
75As I have indicated, the trial of this matter was adjourned in January of 2022 and not reached in May of 2022. It commenced before me on August 2, 2022. On August 4, 2022, after three days of dealing with evidentiary issues relating to an 878-page document G.S. served on S.B. on the night of August 1, 2022, contrary to Justice Audet’s Trial Scheduling Endorsement Form and Trial Management Endorsement dated July 11, 2022, G.S. had a medical crisis for which he attended the Queensway-Carleton Hospital. On August 5, 2022, when it was clear that G.S. was not able to continue, I adjourned the trial to the September 2022 trial sittings. I also changed the
parenting schedule pending the resumption of the trial to one of week about parenting time with the exchange occurring on Fridays. I did so for several reasons. First, the adjournment was short – from August 5 to September 19, 2022, and it was for the sole purpose of G.S. getting his blood pressure under control. Second, pursuant to the temporary order of Justice Audet dated July 12, 2022, S.B. was already scheduled to begin a full week of parenting time on August 12, 2022. Third, I had access to the endorsements of Justice Parfett dated December 17, 2020, and Justice Audet dated July 12, 2022. S.B. had been having unsupervised, overnight parenting time with J. for almost two years without incident by the time of the adjournment. Fourth, although I had not yet heard Ms. Hasbani’s evidence, I did have access to her report as it formed part of the Trial Record. A year ago, Ms. Hasbani recommended increasing S.B.’s parenting time to 50/50 on a gradual basis. However, G.S. had permitted no increases of any kind post receipt of the assessment, and
S.B. parenting time remained minimal, for no evidentiary reason that I could see. Finally, I wanted to test G.S.’s ability to support J. in being co-parented by his mom. G.S. has dismally failed that test.
76Little did I know that the trial would not resume on September 19, 2022. However, G.S. did not appear on that date, and indicated in writing to the court that he was not participating for the same reason as he had sought the adjournment in August, although no new medical evidence was provided. In the interim, S.B. brought a motion for the appointment of an Amicus Curaie to assist the court in obtaining G.S.’s evidence and challenging S.B.’s evidence. I heard the motion, for which G.S. had provided an affidavit, on September 20, 2022, and I granted the order on September 22, 2022, my reasons for which are at G.S. v. S.B., 2022, ONSC 5383. The trial was then adjourned to this sitting to allow the Amicus to become familiar with the case.
77I next heard a motion in writing brought by G.S. to have me recuse myself from hearing the trial for bias. I released my endorsement on the recusal motion, a copy of which is attached as Schedule “B” to this decision, on October 31, 2022, and I dismissed G.S.’s motion.
78When the trial commenced on November 29, 2022, G.S. was again not present. However, the Amicus Curaie reported on her meetings and communication with him in anticipation of the trial, and that he was presently in constant contact with her. I recommenced that trial and finished hearing the evidence on Friday, December 2, 2022. G.S. joined the proceedings only once, on
Thursday, December 1, 2022, for a discussion with counsel only on the role of and his dissatisfaction with the Amicus. After much fruitless discussion, G.S. revealed that his request was for the court to permit him to file an affidavit regarding his problems with the Amicus, which I declined to allow. After a brief recess, the trial resumed, again without the participation of G.S. At the end of the evidence, S.B. requested an order placing J. in her sole care with limited contact with G.S. pending the release of my decision, which temporary order I granted for reasons which will be discussed below.
79As I have noted, S.B. has been worried about J. and the messaging he has been receiving from G.S. for some time. Some examples of the cause for her concern have been provided above. Indeed, Ms. Hasbani noted some concerns of this nature as long ago as December of 2021. S.B. also noted from time to time that J. was expressing worry for G.S. Since August 5, 2022, however, things have gotten much worse.
80First, on August 5, 2022, in addition to ordering week about parenting commencing on August 12, 2022, I also ordered that S.B. have J. in her care for the weekend of August 5 to 8, 2022, based specifically on the health issues G.S. was experiencing. I wanted to provide G.S., who indicated that he was participating in the virtual hearing from his phone in the parking lot of the hospital, an opportunity to attend to his medical care without having to worry about the care of J. However, contrary to my order, G.S. immediately attended J.’s day camp to pick him up. He then kept J. overnight and only permitted S.B. to pick him up the next day. J. had a couple of video calls that weekend, of which S.B. made some notes. On these calls, S.B. overheard G.S. “trash talking her” to J. One exchange which she noted was G.S. stating to J.: “Daddy just needs to heal from things”, and J. replying: “Things she’s done to you?” In another, G.S. instructed J. to “tell your mother I’m not sick, I’m fine” and J. stating to her: “He’s only sick when I’m not with him.”
G.S. also instructed J. to ask S.B. to bring him home on the weekend, and when J. said he couldn’t text in the morning because he would be at church, G.S. stated” “Then don’t go to church.” G.S. also asked J. if he remembers why they’re not doing 50/50. J. replied: “Yes, because we’re moving to Greece”, to which G.S. stated: “I’m going to Greece, don’t know if you are going.” Additionally, anytime J. expressed positive things about S.B. to G.S., he was met with a negative response.
81Second, I have already described that G.S. overheld J. from August 12 to 14, 2022, when S.B.’s first week of parenting time was to commence. He also, in my view, in the words of Justice Parfett, “unreasonably” withheld his consent for S.B. to travel with J. to either New Brunswick or Toronto/Niagara Falls. It is completely unclear why G.S. would deprive J. of the enjoyment of either attending the cottage with S.B.’s family for a week or going to Toronto or Niagara Falls with his mother for a brief vacation. G.S. appears not to be able to consider J.’s interests at all. Rather, his focus is on his need to maintain control over J. and over S.B.’s parenting time with him.
82Right after my temporary order in August, S.B. and J. had a conversation J. in which he said: “I don’t think I want 50/50”. S.B. responded that they should give it a try and see how it goes.
S.B. reported that, although confused, J. did really well when she started having him for a week at a time (or the part of the week for which G.S. would produce him). J. was expressing warmth and comfort and was enjoying his time with her. S.B. reported that J. was, additionally, very excited when she., her sister, brother-in-law and little nephew moved into a home together in Kanata in September. They followed a normal routine in her home, and shared hugs and snuggles. However, she noticed more confusion in J. as time went on. He was not communicating as fluidly as he previous did with “safe” people, such as S.B.’s brother-in-law or her stepmother, both of whom he dearly loves. She also noticed that when J. would get calls from G.S., he would robotically repeat lines, including the infamous: “I don’t want 50/50”. Indeed, S.B. indicated that J. has always had “an unfortunate level of information about the litigation.” She testified, in fact, that when J. first started coming to her home after the Parfett J. temporary order in December of 2020, he spontaneously stated: “Thank God for the judge. I’m happy to see you Mommy, I don’t want to do 50/50, I don’t want to do week on/week off.” J. was six years old at the time.
83In early August, like in March, April and May of 2022, S.B. noted an exchange with G.S. on J.’s phone which was worrying for her due to both G.S.’s insistence that J. needed to phone him and because of his questioning of what J. was doing while with her. The exchange is as follows:
G.S.:
Morning
J.:
Good morning (emoji) daddy (emoji)
G.S.:
Bebe
U didn’t call me in the morning (emphasis original)
J.:
Looooooove u
G.S.:
Thought u would when mama sleep
J:
Sorry I forgot (emoji)
G.S.:
Of so u forgot about dada Ok
U forgot me already in a day (photograph)
J.:
I’m is [sic] sorry (emoji)
G.S.:
I forgive u
J:
Ok
How is your day going so far
G.S.:
On the computer Working
But doing great Where u at What u doing
J.:
My mom doesn’t want me texting u rn
G.S.:
Why?
Are you guys doing something?
J.:
We r in car right now
G.S.:
Then why not txt with me? You txtin sofia at all?
J.:
I am doing errands With my mom
G.S.:
nice
J.:
Yes I called Sofia We had a chat
G.S.:
Nice. Msu have been fun Must
J.:
We doing fun things
G.S.:
With sofia or mommy
J.:
Mommy Not Sofia
I am doing fun things with mommy (emoji)
G.S.
Like what
J.:
We are doing errands
G.S.:
Whats so fun about errands lol
Your mother should bring u to cosmic adventures That we have a membership
J.:
We are stopping somewhere I have to go my mom doesn’t want me to text u right now so I to go
84In addition to very inappropriately guilting J. into engaging with him, G.S. is dismissive of J.’s attempts to heed his mother’s instructions while in her care. It is clear, moreover, from its contents that the entire exchange is intended to meet G.S.’ needs, not J.’s.
85S.B. testified, additionally, that on a recent drive home after picking J. up from G.S., he told her that daddy was showing him directions from “your house to his house and from school to his house”. About a week after this, J. started to make comments about running away from school. On September 7, 2022, G.S. sent S.B. the following message on OFW:
He is crying like crazy like I’ve never seen him cry before. He is screaming he hates you
He is saying he will leave in the middle of the night He will try to take the bus on Friday home
He is going crazy.
I’ve been saying this over and over a year now that it will happen but you only think of what you want.
You think he will suck this up. He will not. He will hate you.
What is forced on him is not right. It’s never forced on a child after 5 years. He has every right to feel like this.
I don’t have to say anything to you. I can just sit back and let him hate you and that will put an end to all this sooner or later.
This will affect him in school. He will tell his teachers. He will see the social worker at school.
If he hates you it’s game over for you. How can I not see that.
I’m telling you because it’s completely unhealthy for him to hate you.
You don’t care how he feels. I get that. I’m sure you care about having a son that hates you
This is where this is going and it’s going to get worse and worse.
Yet your fucking lawyers keep pushing. We will end up front page all over the media. He will hate you.
What will you have accomplished in the end?
You promised him no EDP. Yet your lawyers email me today saying they want to make sure you can put him in after school care.
He is in my bed balling right now. I can hear him.
You can’t take a child away form the only home and parent they know. You can’t buy their love or manipulate them to do this. Especially not [J.].
Oh. And you never should have told Carly and Nick what you were doing back then. Nick has been justifying to everyone what you did by giving them the website and all your pictures past 2 years. Someone gave me everything 2 days Ago. EVERYTHING.
Escortbabylon.net
Makes any pictures I ever had look like nothing.
Told you. The truth sooner or later comes out. 5 years later someone gives this now. And most are November 2017. Post diagnosis.
86S.B. indicated that this message was sent at a time when J. was not yet exhibiting any worrisome behaviours or making any worrisome statements. She testified, in fact, that J. was super excited to see her when she picked him up on the Friday after his first week of school. However, it did not take long for J. to start echoing G.S.’s statements in this OFW message.
87The above message, in which G.S. employed many of the same tactics he has used throughout their relationship, was in fact an odious signal that G.S. was starting to spin out of control. First, in it, G.S. planted the seed that J. would “leave in the middle of the night”, meaning from her home, something J. has never done nor threated to her to do to that point. Second, he threatened S.B. with J.’s impending hate of her, something he has done many, many times in the past. Third, he threated media exposure of their dispute, something he has also done many, many times in the past, including to C.B., who has a genuine and justified concern for the harm which is constantly being threated upon his family. Fourth, G.S. spoke of himself being J.’s only parent, a theme to which he often reverts, notwithstanding that S.B. has never been absent from J.’s life,
and has had very meaningful, unsupervised parenting time with him for the past two years (of which she would have wanted a great deal more, but for G.S.’s intransigence). Finally, G.S. reverts as well to judgments and implicit threats around S.B.’s past sexual activities, something which is completely irrelevant to her current (and past) ability to parent J. Indeed, G.S. very recently (in September of 2022) sent sexually explicit photographs of S.B. to her father, C.B., for reasons that can only be comprehensible to him.
88Although J. has never threatened to S.B. that he would leave her home at night, he did later mention to her that it would be a “two-hour walk home”. This worried S.B. a great deal, as she believed J.’s statement related to G.S. having earlier shown J. the route from her home to his and from school to G.S.’s home. She considered it to be an “outlandish thought” on J.’s part, and one clearly put in his head by G.S. On November 4, 2022, J. locked himself in the bathroom of G.S.’s home at the time that S.B. was to pick him up. According to S.B., J. stated during this incident: “If I keep saying I’ll run away from school does that end 50/50?” S.B. feels very badly for J. seeming to think that either he is responsible for G.S. (“Daddy’s sick”, “I’m worried about my dad, he’s sick, he’s going to be alone”), or that he is responsible for what happens (“I don’t want 50/50”, “If I keep saying I’ll run away from school does that end 50/50?”).
89During the delay of the trial from September to November, I invited submissions from the parties regarding additional terms of the adjournment. On October 3rd, I released my endorsement for a further temporary order pending the completion of the trial as follows:
a. Neither parent will interfere with the other’s parenting time by picking up JCBS form school, during school (including lunch) or other activities when it is not their parenting time.
b. The parent who is not with JCBS may telephone once a week, on Tuesdays at 7:15 p.m. The call may last up to twenty minutes. Neither parent shall ask or encourage or otherwise indicate to JCBS that he should telephone them beyond this weekly call. JCBS may send messages and photos to the parent with whom he is not spending time, and the parent may respond.
c. Each parent may travel without restriction, without JCBS, on their non-parenting time without the need to self-isolate upon return.
90These terms were necessary as G.S. was either picking J. up from school, attending school at recess during S.B.’s parenting time and/or keeping J. home from school. He was also continuing to telephone J. constantly and/or insist that J. call him while in the care of S.B. G.S. was also attempting to still use Justice Parfett’s reference to self-isolation against S.B., even when she travelled to Carleton Place to see or work with C.B. in their shared farming business.
91A common theme throughout this case is that G.S. interprets court orders however he sees fit. Thus, notwithstanding paragraph 8. b. of my above referenced endorsement, G.S. has continued to reinforce to J. that he can call him whenever he wants. He has also taken the position that he (G.S.) can call J. whenever he wants. In an email to Ms. Jolly on October 21, 2022, G.S. wrote at 4:05 p.m.: “Mrs. Jolly. As I have already stated to your client. Unless [J.] is told that he is allowed to call either parent when he wishes, provided it’s done during appropriate times and not during special activities, I will then be forced to call him myself.”18 On October 21, 2022, in an email to Ms. Jolly at 8:04 p.m., G.S. reiterated that, stating that no evidence had been presented to the court demonstrating “why the child should not be allowed to call me as he has always done.”19 Essentially, G.S. disagreed with the court order and intended to do as he wished, or to have J. do as he (G.S.) wished. In a screenshot of a text exchange between G.S. and J. one week after the October 3, 202220, endorsement was released, the following appears, although S.B. believes G.S. may have deleted some portions of the thread:
J.:
Hi.
Da (emoji)
G.S.:
Bebe
J.:
(emoji)
G.S.:
Where r yaaaa
How’s it going
J.:
I can’t call u my mom said no
G.S.:
She can’t say no
U can call me if you want
J.:
But
She said no
G.S.:
[J.]. If you want to call me call me
J.:
But she won’t let me (emoji)
92There is clearly no effort on G.S.’s part to assure J. that he is fine and that he should enjoy his time with S.B. rather than be phoning him. S.B.’s evidence was that this kind of messaging to
J. was and is having extremely negative affects on him, as it almost always upsets him and derails their family time. S.B. indicated that in reviewing J. texts with G.S., she has the odd time seen one that can be characterized as positive, but more often than not, they are upsetting to J.
93For her week of November 18 to 25, 2022, S.B. was not able to retrieve J. until Wednesday, November 23, due to G.S. overholding him. When S.B. messaged G.S. on November 18, 2022, on OFW about the anticipated exchange, his response was: “As I told your lawyers and also the amicus did in her own way. I will try my best to get him to agree to come to you. He refuses to come as long as this scheduled is in place.” There follows a long missive from G.S. at 7:05 p.m. in which he justifies his overholding of J.21 He variously states:
You can’t force this on him.
If we force him to go to you while he is threatening to leave school and your house while in your care will only make things worse, and could put his life in danger.
The Court changed the schedule too soon, too quickly. [J.] wasn’t given time to adjust to this schedule.
If you keep pushing this he won’t want to see you at all in the end.
If he leaves your house in the middle of the night as he keeps threatens [sic] to do, CAS will take a more active role in our case. What will you do? Chain him?
We need to figure out what schedule [J.] will accept at this time and work hard on gaining his trust again.
With [J.] the way he is right now no court can fix this. Only you can.
Given the circumstances you have my consent to call [J.] anytime you want right now. If that doesn’t work feel free to ask me to have him call you.
94G.S. simply refused to comply with the existing court order requiring an exchange of the child every Friday at 6:00 p.m. for week about parenting. He also kept J. home from school on November 21 and 22, contrary to my October 31, 2022, endorsement. Ironically, G.S. refers to the court having made a change in the parenting schedule too precipitously, while not himself having considered any change in S.B.’s regular parenting time for two years, all the while interfering in the minimal parenting time she did have. Even if he did not agree with a 50/50 schedule, G.S. could have agreed to incrementally increase S.B.’s time with J. anytime since the release of Ms. Hasbani’s report. Not only did he not do so, much to J.’s detriment, he continued to interfere in the little time S.B. did have. As a result of G.S.’s interference on this occasion, S.B. was unable to get J. in her care until Wednesday, November 23, 2022; instead of having J. for seven nights, as per the court order, S.B. had him for two.
95Under the circumstances, S.B. expected Wednesday to be rough with J., but that wasn’t the case at all. J. was fine in her care. However, G.S. sent her a message by OFW on November 23, 2022, telling her to have J. call back his friend, Luc, who been calling him. At 5:02 p.m., G.S. wrote: “Tell [J.] to turn on his volume and call Luc back. Pls make sure he has his phone at school and at home. If he does something crazy he better be able to contact us.” (Emphasis added). S.B. testified that the school is well aware of parenting exchange days and on those days, she sends J.
with his phone to school. On non-exchange days she does not send the phone because J., who is eight (almost 9), doesn’t need it. S.B. testified further that she had given J. the option of calling Luc on her own. This message is indicative of G.S.’s continued need to both control S.B.’s parenting time, limited as he was able to make it, and his projection of J. being possibly about to do “something crazy.”
96S.B. indicated that G.S. has always interfered in her parenting time and the trial was replete with evidence of him having done so. She testified that in the last few months, however, since the change to the schedule in August, G.S. has been purposefully attempting to alienate J. from her. She fears very greatly, moreover, that his efforts are bearing fruit. S.B. testified that her telephone call with J. on Tuesday, November 29, 2022, was “really turbulent”. She indicated that J. immediately started regurgitating lines robotically – that he doesn’t want 50/50, that is not going to come to her house on Friday. J. was extremely agitated and speaking to her in the tone and style of G.S. She stated that there was “barely any good part to the conversation”, though J. did enjoy saying hello to his cousin, E. and to the family cat. As or more disturbing than this phone call, is a text message exchange between J. and S.B., which is undated but which she identified as occurring in late November, which reads as follows22:
J.:
Me upset so you’re upsetting me
S.B.:
[J.] I’m really sorry you feel upset
I hope you’re feeling better from being sick really soon (emoji) I miss you lots
I’m just doing some training videos for my new job so I’m going to get back to my computer
Message me again if you want to chat (emoji) hopefully you have a relaxing afternoon
J.:
Daddy keeps telling me I have to go to you. But I don’t want to. He says he will get in trouble if I don’t. But if you force me to do this I will leave can you not talk to Daddy and fix this. I will keep arguing with you until 50/50 stops. If I have to I will leave the house I will do the 2- hour walk in the cold to get the [sic] daddies.
J.:
Why don’t you ever pick up when I call you
S.B.:
Sorry I missed your call. Daddy said you’re sick, I hope you feel better quickly (emoji).
97This exchange is exceedingly disturbing. First, J.’s “asks” are clear echoes of G.S.’s earlier communications, particularly his September 7 and November 18, 2022, OFW messages to S.B. J. is programmed, and has been so since as early as December 2020, to not want “50/50”, regardless of what his reality may be. His threats to “leave”, his request for S.B. to “talk to Daddy and fix this” and his unrealistic threat to leave the house and “do the 2-hour walk in the cold to get to daddies” all have the markers of intentional influence, if not direct coaching. Second, J.’s unrelenting demand to hear back from S.B. immediately is eerily reminiscent of G.S.’s abusive communications with her throughout their acquaintanceship.
98S.B. was scheduled to commence her next week of parenting time with J. on Friday, December 2, 2022, at the close of the evidentiary portion of the trial. The messaging coming from both G.S. and seemingly J. at that time was that she would not be able to get J. into her care at 6:00
p.m. on Friday. Based on all that had transpired since August 5, 2022, but more specifically since about the beginning of November, S.B. requested an order placing J. in her care, with a police enforcement clause, pending the release of my decision.
99I was prepared to and did make that order. There is no doubt that G.S. has been taking steps to, if not alienate, then seriously interfere in S.B.’s relationship with J. He has done so since July of 2017, however, his efforts have become more pronounced at times where he has perceived a risk of S.B. succeeding in obtaining more time with J. This was true after S.B. completed treatment
in 2018, when he insisted on her access to J. being exercised in his home and supervised by him. It was true after she completed treatment in 2020, and her family rallied around her to support her. It was true at the time of Justice Parfett’s temporary order in December of 2020. It was true after Victoria Hasbani recommended an increase to S.B.’s parenting time in her report of December 31, 2021. And it certainly has been true since I made a temporary order for week about parenting time on August 5, 2022.
100G.S. has, in my view, psychologically harmed J. by requiring him to incessantly telephone him or receive his telephone calls while in S.B.’s care, thereby interfering with her parenting time, by causing him to secretly call him after S.B. has gone to bed, by requiring J. to immediately respond to his (G.S.’s) need to hear from him and to apologize for not having done so and/or for hurting him, by requiring J. to constantly insist (from 6 years of age) that he does not want 50/50, by messaging to J. that time with his mother or things his mother does are negative, by keeping J. from his mother contrary to existing court orders, by keeping J. from school when he should be with his mother, and by messaging to J. that he (G.S.) is unwell and J. needs to look after him (as he messaged to J. about his parents in Greece, as was noted by Ms. Hasbani).
101G.S. is unwell. But he is not J.’s responsibility, nor is he S.B.’s. Furthermore, S.B. is not responsible for the state of G.S.’s health. G.S. is responsible for the state of his health and it is incumbent on him to do something to improve his situation, just as S.B. did a great deal to improve hers. G.S. needs to find a way to support that S.B. belongs in J.’s life as a fully involved parent. His inability to do that to date has caused G.S. to make decisions which are not in J.’s best interests. Again, these include interfering with S.B.’s parenting time, withholding J. from her care, influencing J. negatively and disrupting other relationships for him, particularly that with C.B., his wife, and S.B.’s mother, with all of whom J. had warm and loving relationships prior to the disruption.
102G.S. has also not acted in J.’s best interests in other ways. For example, when J. came into S.B.’s care after the temporary order of Justice Parfett, she noted he had several cavities, which ultimately resulted in dental surgery and the removal of some teeth. G.S. was oblivious to this issue and neglectful of J.’s dental health. G.S. also attempted to remove J. from the French Immersion program in his school, which neither S.B. nor J.’s teachers supported. S.B. has a very
structured approach to her parenting time with J., particularly relating to homework, and is, in my view, much more attuned to his educational and medical needs. She is much more apt to make decisions for J. which are in his best interests, as opposed to meeting her needs, as G.S. has done. I have little difficulty finding that an order of sole decision-making authority to S.B. is in the best interests of J.
103I also have no difficulty finding that a relocation of J. to Greece by G.S. is not in the child’s best interests. It is clearly designed to meet G.S.’s needs, not the child’s. J. is connected (and now reconnected) to not only S.B., but also her sisters, brother-in-law, nephew, father and step-mother and mother. J. has also attended that same school since he began. He has friends with whom he is close in Ottawa, specifically Sofia and Luc. J. also expressed to Ms. Hasbani that he did not want to move to Greece. Moreover, given G.S.’s treatment of S.B.’s parenting time when they live in the same city, I have no confidence that he meaningfully preserve that relationship from a distant country.
104G.S.’s suggestion of a move to Montreal was vague and undefined. He provided no evidence as to what he would do for employment in Montreal, where he proposed they would live, where J. would attend school or what kind of parenting time S.B. would have in such a scenario. I do not consider it to have been a realistic plan, and equally do not find that it would be in J.’s best interests.
105The more difficult issue is that of the appropriate allocation of parenting time. J. is very closely bonded to G.S. and he misses him when he is with S.B., just as Ms. Hasbani found he misses S.B. when he is with G.S. G.S.’s friend, Annamaria Barbera, who is Sofia’s mother, testified as to their close bond, and described G.S. and J. as “peas in a pod”, and “inseparable”. Under normal circumstances, and in keeping with the recommendations of Ms. Hasbani, this is a case in which I would make an order for shared parenting time on a week on/week off basis. Although Ms. Hasbani recommended a gradual increase to a 2/2/5 schedule, I agree with S.B. that any schedule with a multiplicity of exchanges is not a good one. On shared parenting, I would have no difficulty finding that, left to his own devices, J. would readily settle into such a schedule, as indeed he did when it was first imposed. J. knows, however, that his father requires him to be
unhappy with that schedule, just as he knew his father required him to be unhappy over Bluesfest, when, in fact, he had a wonderful time. These are, therefore, not normal circumstances.
106Indeed, as has been submitted by S.B., this is a case in which many of the indicators of alienation as set out by Justice Nicholson in A.M. v. C.H., 2018 ONSC 6472 at paragraph
109 are present. These include allowing the child to make decisions about contact, being unconcerned for S.B.’s missed parenting time, conveying distain or disapproval of activities engaged in by J. with S.B., portraying himself as J.’s “only parent”, portraying S.B. as dangerous, exaggerating S.B.’s negative attributes and ignoring her positive ones, repeating a delusional or distorted history of S.B.’s involvement, requiring J. to secretly call him late at night when in S.B.’s care, and conveying hurt to J. when he does not immediately respond to him.
107S.B.’s position is now that J. be placed with her for a period of three months with limited parenting time/contact with G.S. to give J. a break from the pressure he has been under, especially more recently (though I would say since at least the release of Ms. Hasbani’s report), and to give
G.S. time to engage in some services. In her submissions, S.B. has provided a draft order with a graduated increase in G.S.’s parenting time in three stages. Stage 3, should G.S. meet the preconditions to achieve it, would see his parenting time increasing to alternating Wednesdays from school/camp to Monday mornings at school/camp. With this draft I agree, but for some limited amendments, one of which would be to include one two-hour supervised visit weekly in addition to the two weekly video calls, as opposed to as an alternative to them.
108S.B. also seeks an on-going child support order based on an imputed income to G.S. of
$50,000 per year. G.S. has failed to provide disclosure which has previously been order by the court in relation to his business interests and financial dealings. He appears to have made no efforts to become employed in any capacity whatsoever from the time that his nightclub closed due to COVID-19 pandemic, prior to which his income was $134,456.35. G.S.’s lifestyle, moreover, is reflective of a person who has access to capital. This includes taking numerous vacations, driving luxury vehicles, and owning a house which is, by his own admission, worth at least $1.65 million. I find that G.S.’s annual income for support purposes is $50,000.
109S.B. also acknowledges that she owes G.S. child support for the period of July 2021, when she became steadily employed, to August 2022, in the amount of $5,011, which agrees to deduct from one of the costs awards owing by G.S. to her. That order will be granted.
110Finally, there is no doubt that a continued restraining order against G.S. is required. As I have outlined above, S.B. was only able to establish her own life, relatively free of G.S., after Justice Parfett made a restraining order against him. S.B. has, in fact, done a remarkable job. She is an incredibly strong, young woman, who was able to rise above the unrelenting harassment, stalking, tracking, berating and threatening behaviour of G.S. It is a testament to her that she kept her focus on J., and doing what was necessary to regain, build and maintain a close and loving relationship with him.
Order
111For the reasons given above, there shall be a final order as follows:
PURSUANT TO THE CHILDREN'S LAW REFORM ACT, THIS COURT ORDERS THAT:
- By no later than three weeks following the date of this order, the Father shall engage a therapist with expertise in family relationships (other than Dr. Dino Zuccarini) to assist him in developing self-awareness and insight into the issues referenced in this Court’s reasons for decision, including with respect to his own behaviours and how to cease behaviours that are destructive to the Mother’s relationship with the child "JCBS", born [redacted], 2013 (“J.”) and harmful to the Mother. The Father shall:
a. Provide the therapist with a copy of this Court’s reasons for decision and this order; and
b. Authorize and instruct the therapist to speak with the Mother after any initial intake but before therapy commences, and authorize the therapist to contact the Mother at any stage to speak with her further, at the therapist’s discretion.
- By no later than three weeks following the date of this order, the Mother shall engage a therapist for J., the purpose of which shall be to support the child’s relationship with
his mother, support the child in following this court order, and assist the child in not feeling responsible for his father. Further,
a. The therapist shall be provided with copy of this Court’s reasons for decision and this order; and
b. Following any intakes required by this therapist, the Father will not contact the therapist except at the therapist’s specific request.
- J. shall reside primarily with the Mother. The Father’s parenting time with J. shall increase in stages as set out below, subject to the Father meeting requirements for progressing for the next stage.
Requirements for Moving to the Next Parenting Stage
The Father shall attend the six-week Parenting Through High Conflict Separation and Divorce Course. He will provide proof of attendance and completion of the course to the Mother through Our Family Wizard. Completion shall be a pre-requisite for stage 2 of his parenting time, below.
The Father shall attend and complete the Caring Dads Group program (14 sessions) (facilitated by Catholic Family Services Ottawa). The Father will provide confirmation of attendance and completion of the course to the Mother through Our Family Wizard. Completion shall be a pre-requisite for stage 3, below.
Stage 1
- J. shall reside with the Mother for twelve consecutive weeks following this order, subject to the below:
a. Two weekly video “check-in” calls for 20 minutes each, to occur on Monday and Thursday evenings at 7:15pm unless the parents agree otherwise. On these video calls and all other calls and video calls under this order:
i. The Father must keep to general topics relating to the child;
ii. The Father may not state directly or indirectly or infer that he does not support the parenting schedule;
iii. The Father must not indirectly or directly criticize the Mother;
iv. The Father must not speak of adult matters, court, lawyers, or discuss the schedule with J., and
v. The Mother may end these calls if the Father is, in her view, not engaging appropriately with J.
b. The Father shall have parenting time of up to two hours, once a week, supervised (at a location other than at the Father’s home) by a Supervision Service agreed to by the parties. The supervisor shall take notes which shall be produced to both parties and made available to the Father’s therapist.
Stage 2
- After twelve weeks in Stage 1, provided that the Father has met the criteria set out in paragraph 1 and attended at least four sessions with this therapist, and that he is not in breach of the order, and has complied with paragraph 4 (completed the Parenting Through High Conflict Separation and Divorce Course), then J. shall continue to reside primarily with the Mother and shall have parenting time with the Father as follows:
a. Alternating weekends, from Friday after school or camp, or 5:30p.m. if there is no camp or school in session, to Monday morning, at school or camp, or 8:30a.m. if there is no camp or school in session.
b. Two weekly video “check-in” calls for 20 minutes each, to occur on Monday and Thursday evenings at 7:15pm unless the parents agree otherwise, with the same conditions as set out in stage One.
Stage 3
- After sixteen weeks in stage 2, provided that the Father has met the criteria set out in paragraphs 1, 4 (Parenting Through High Conflict Separation and Divorce Course), and 5 (Caring Dads Program Course) above, and providing that he is not in breach of the order,
J. shall continue to reside primarily with the Mother and shall have parenting time with the Father as follows:
a. The Father’s parenting time shall increase to alternating Wednesdays, from after school or camp, (or 5:30p.m. if there is no camp/school in session), to the next Monday morning (5 consecutive overnights), at school or camp, (or 8:30a.m. if there is no camp/school in session). If there is no school on Monday the Father’s parenting time will be extended to Tuesday morning, at school (this extension does not apply to the summer school holidays).
b. Video “check-in” calls for 20 minutes each, to occur on each Monday and on alternate Thursday evenings (on Thursday the week where J. is not with the Father) at 7:15pm unless the parents agree otherwise, with the same conditions as set out in stage 1.
Holiday Parenting Schedule for J.
- The holiday schedule shall override the regular schedule:
a. Summers shall be spent in accordance with the regular schedule, as set out above.
b. Starting in 2024, if either parent wishes to travel internationally with J. for longer than the operative schedule permits, they may do so for up to 10 days (longer if agreed by the parties), which shall include their regularly scheduled weekend. In even-numbered years, the Mother will advise of her chosen travel weeks (if any)
by March 1, the Father will advise of his chosen weeks by March 15, and this shall be reversed in odd-numbered years.
c. Christmas: Over Christmas Holidays, the weekends that J. will be with each parent shall remain unchanged. However, in even-numbered years, starting 2024, the Father shall have J. for his first week of vacation (Monday to Friday) and the Mother shall have J. for the second week of vacation (Monday to Friday). This shall be reversed in odd-numbered years starting in 2023.
d. March Break: In even-numbered years, starting in 2024, the Father shall have
J. from Monday to Friday, resulting in 7+ consecutive days with J. (weekends shall remain unchanged). In odd-numbered years, starting 2023, the Mother shall have J. for the full Monday-Friday, resulting in the Mother having 7+ consecutive days with J. (As applicable, the schedule will either be on Monday morning at 8:30a.m. or Friday at 4:00p.m.)
e. Easter: In even-numbered years, starting 2024, J. shall be with the Mother from Thursday after school (or 4:00p.m.) until Tuesday morning at school, over Easter, and with the Father from Friday after school (or 4:00p.m.) until Monday at school over the Orthodox Easter. This shall be reversed in odd-numbered years, starting 2023. In the event that Orthodox Easter falls on the same weekend as Easter the parties shall alternate; J. will be with the Mother in the first year that this occurs (2025), and with the Father the next year that this occurs (2028).
f. All other holidays shall be spent as they ordinarily occur in the schedule.
- In the event that the Father moves to Greece, then J. shall reside primarily with the Mother, and the Father shall have parenting time with J. as follows, except that there shall be no travel internationally under this paragraph until the Father is not in breach of this order and has complied with paragraphs 1,4, and 5, of this order:
a. The first three weeks of each summer, in Greece;
b. Ten days each Christmas Break;
c. Every March Break (Friday to Sunday (10 days));
d. Facetime/video calls, three times per week, on specified days, for up to 20 minutes;
e. Other times, in Ottawa if the Father is in Ottawa, as arranged on Family Wizard between the parties; and
f. One of (b) or (c) each calendar year must be exercised in Canada/US to minimize travel for J.
Further Call (Video or Telephone) & Text Rules
Text Messages Between J. and the Father
Subject to the below two paragraphs, the Father shall not text J. pending further order of this court or explicit agreement in writing from the Mother through Our Family Wizard.
The Mother is permitted at her sole discretion in consultation with J’s therapist if required, to decide how often if at all J is texting his father. If J texts the Father, the Father may reply back briefly.
The Mother will communicate any “rules” regarding texting to the Father, who will abide by them.
Telephone Calls and Video Calls between J, and the Father
Except for the calls specified within this order, in each stage, the Father shall not telephone or video call J. for any reason, whatsoever.
The Mother is permitted at her sole discretion in consultation with J’s therapist if required, to decide how often if at all J. should be permitted to telephone or video call his father (in addition to the explicitly scheduled calls by the Father).
The Mother will communicate any “rules” regarding this section, to the Father, who will abide by them.
Rules for the Mother/General Rules
The Mother may text, telephone or video call J. if she believes it would be of benefit to J., at her discretion. She shall exercise her discretion with care and with J.’s best interest in mind, only.
If a parent misses a call from J., he or she may call back within ten minutes, but not later than that.
Neither parent shall ask J. to call them or contact them.
Protocol for Exchanges of J. (including which parent he should be released to by school or camp)
All exchanges shall occur at school or day camp. If school or day camp is not in session, the exchanges shall occur at Costco in Kanata, at 770 Silver Seven Rd. On the (few) occasions when the exchanges occur at Costco, the Father will stay immediately next to his car during the entire exchange and will not approach the Mother.
All exchanges shall occur at 8:30a.m. if not specified elsewhere, if school or camp is not in session, except for (a) the holiday schedule set out above and (b) if J. is too ill to attend school/camp. If J. is too ill to attend school/camp, the other parent shall promptly notify the other parent (by 7:30am) and the exchange shall occur at 5:30p.m.
The parent who is scheduled to care for J. after school shall be responsible for J. during the school/camp day. Only the parent caring for J. may retrieve J. from school/camp on a school/camp day. For greater certainty, until the Father enters stage 3 of parenting time, he has no parenting time during school days.
The Father may not attend at the school for any reason during the Mother’s parenting time. Attending at the school includes but is not limited to taking J. for lunch, attending at lunch time, bringing anything to J. at school, attending at recess, biking by the school at lunch time or recess.
But in the case of illness, neither parent may keep J. out of school except for (a) a family funeral (b) a pre-planned out of province vacation on his or her own parenting time or (c) on advance written consent of the other parent. If J. is kept from school due to illness, he shall be placed in the care of the parent who is regularly scheduled to retrieve him from school on that day.
For further clarity, this Court directs J.’s school and/or camps to only release J. to the scheduled parent or the parent’s delegate(s) unless there is written or verbal confirmation from the scheduled parent otherwise. As an example, if the Mother is scheduled to pick up
J. from school/camp on a Tuesday, the Father shall not be permitted to keep J. out of school on that day or pick up J. from school on that day.
The parties will not approach each other at exchanges. Either parent may have delegates assist with exchanges or pickups/drops offs at their discretion and/or attend in lieu of the parent, including a relative or care provider, regardless of the exchange location. The parents will not speak to each other on the exchanges except for a friendly “hello”. Information needed for the parent picking up J. shall be passed through Our Family Wizard.
The parents shall each notify J.’s school as to the existence of this new Order and provide a copy of it to the school.
Messaging to J.
28.. At the request of J.’s therapist, this court may provide a note directly to J., to be shared with him as the therapist sees fit, to help J. understand the court order and why he must follow it.
Decision Making and All Other Parenting Terms
Decision-Making & Information
The Mother shall have the legal authority to make all major decisions for J. including but not limited to decisions surrounding J.’s health (including physical and mental health), education, religion, and major extracurricular activities.
The parties will continue to communicate through Our Family Wizard and will each pay their own renewal fees.
Prior to any major decisions being made by the Mother, the Mother shall give the Father as much notice as is reasonably practicable, including the decision to be made, the timeframes for making the decision, and any considerations or information required in order to make the decision.
Each parent shall have full rights of access to information with professionals involved with J.
Each parent may make decisions as to extended care (before & after school care or similar) on their own parenting time.
The parties shall not plan engagements for J. (play dates, parties or other activities) during time when J. is in the care of the other parent. The parties shall respect the other parent’s parenting time.
Each parent may enroll J. in day camp of his or her choice, on his or her time with J.
Neither parent shall request modifications to the schedule except for important life events such as weddings, baptisms, or funerals. This clause shall be used sparingly (no more than a two or three times per year at most). Should the parents agree in writing, on Our Family Wizard, to change the parenting time schedule, this shall not be construed as setting a new status quo or otherwise changing this order.
Travel and documentation, residence
Travel with J.: This section only applies to the Father if he has complied with paragraphs 1, 4, and 5 of this order. Each parent may travel with J. within Canada. Each parent may travel with J. outside Canada on one week’s notice by car, or two weeks’ notice by air. For travel outside Canada with J., the other parent shall sign a travel consent within five days of being provided with same for consideration, upon production of ticket and travel information. Consent for travel will not be unreasonably withheld.
The Mother shall keep J.’s health card and will provide the Father with a clear colour photo of each side as well as a notarized copy. She will provide him with the original health card when he is travelling with J., upon his request, which he will return to her when J. is returned.
The Mother shall be responsible for J.’s documentation management as well as decisions related to J.’s social media use and internet identity.
The Mother shall keep J.’s passport and provide the passport to the Father as reasonably required for travel and he will immediately return it to her after J.’s travel. The Mother may renew J.’s passport without the need for the Father’s signature.
Restraining Order and Conflict Avoidance
The Father is restrained from contacting the Mother except via Our Family Wizard, in relation to pertinent information about J. The Father is prohibited from texting, emailing, messaging, or otherwise contacting the Mother. The Father will not attend within 100m of the Mother’s place of residence or employment, or any other place that she may be, except for court ordered scheduled exchanges set out herein, and school events for J., provided that the Father does not approach or attempt to interact with the Mother.
The parties’ use of Our Family Wizard shall be limited to pertinent information about J:
a. Messages on Our Family Wizard will be no more than two or three sentences in length unless passing along detailed information from a third party (medical, educational, etc).
b. Neither parent shall use Our Family Wizard to make any historical complaint against the other; the communications shall be limited to current issues relating to
J. only.
The Father shall not tape, monitor, track, or follow the Mother, regardless of whether otherwise permitted by law.
The Father shall delete all electronic, digital, video, media and photos of a sexual or otherwise compromising nature of the Mother immediately, to comply with the final order of Justice Sheard dated December 7, 2017.
Further to the order made orally on August 2, 2022, the Father shall immediately delete all recordings made of this trial. In addition, he shall sign an affidavit that he has done so and serve same on the Mother within 7 days of this order.
Neither parent shall speak disparagingly of the other or their family.
Neither parent shall publish or disseminate any material with respect to court proceedings, including posting online.
The Father shall not contact persons in the Mother’s life (friends, relatives) who have expressed that they do not wish to be contacted by him including Craig Bowers, Mary Bowers, Chloe Bowers, or James Mills.
Neither parent shall expose J. to their adult issues and situations, nor question J. about his time with the other parent, or make suggestive or directive comments about his time with the other parent.
Health
- Public Health guidelines around Covid shall be respected.
Case management + Guidance
Post-trial case management shall continue for a period of two years for the purposes of ensuring implementation of and compliance with this Order. I shall remained seized of the post-trial case management.
Neither parent may withhold J. based on his or her view that the other parent is not following the order.
Should the Father withhold J., the Court shall provide the Mother with urgent court dates for a contempt hearing and inclusion of a police enforcement clause if necessary.
This order must be followed in spirit as well as letter. This Order replaces all previous orders as between the parties, interim and final, except in relation to any cost award for the trial.
A copy of this decision is to be sent by the Mother to Ottawa CAS, to the attention of the family service worker most recently attached to the file, or her/his supervisor.
PURSUANT TO THE FAMILY LAW ACT, THIS COURT ORDERS THAT:
Child Support
- Child support owing by the Respondent SB to the Applicant GS as of today’s date (including any s. 7s) shall be set at $5,011, based on:
a. Payments of $311.00 per month from the period of July 2021 to July 2022 based on the Respondent S.B.’s 2021 income of $35,598.00, for a total of $4,043.00;
b. Payments for July to August 2022 of $484.00 per month, based on the Respondent Mother’s estimated pro-rated income in those months of $52,500, for a total of $968.00;
c. The $5,011.00 shall be paid by an immediate direct reduction of the cost award of Justice Parfett of February 16, 2021, owing to the Respondent S.B. by the Applicant G.S. This shall as of the date of this Order reduce the arrears owing under that specific order to $9,989.00. After this reduction, there are no arrears in child support payable by either parent to the other.
The Applicant G.S.’s income shall be imputed to $50,000.00 per annum or his actual income, whichever is higher;
Starting on the first day of the first month following this order, and on the first day of each month thereafter, the Applicant shall pay child support to the Respondent in the sum of $461.00 per month, based on his imputed income of $50,000.00, as support for the child JCBS, born [redacted], 2013, in accordance with the Federal Child Support Guidelines.
Based on this order, the Respondent S.B. may claim the eligible dependent credit for the child.
The Applicant and the Respondent shall pay 50% of JCBS’s special and extraordinary expenses, which is in proportion to their incomes. The parent incurring the cost shall provide the other with the expense receipt within 7 days of incurring the expense via Our Family Wizard, and payment shall be made within 14 days to the parent incurring the expense. These amounts shall be paid/reimbursed separately from the monthly child support payments.
Special and extraordinary expenses for J. include:
a. Karate (including gear) and any replacement activity;
b. A maximum of two extracurricular activities, which if over $400.00 per year shall require consent of both parties (which will not be unreasonably withheld), and if under $150.00 shall not qualify for sharing;
c. The portion of extended health and dental care premiums deductibles attributable to the child, calculated by subtracting the difference from the individual cost from the family plan cost;
d. Medical, health, and dental expenses to the extent not covered by either parent’s extended health and dental plan(s);
e. Summer camps (each parent may schedule camps on their time), provided it does not exceed $350.00 per week without consent of the other parent;
f. Any daycare or childcare required due to employment;
g. Post-secondary education costs for a first degree or diploma, including tuition, after the child’s reasonable contribution to the expenses, which may be by way of loan;
h. School fees such as for class trips;
i. A new snow suit and boots, annually, if agreed upon in writing; and
j. Any other expense agreed upon in writing, in advance.
The Applicant G.S.’s obligations with respect to disclosure under Justice Shelston’s interim order of January 6, 2022 continue and the Applicant G.S. shall in addition notify the Respondent S.B. of any change in his earnings including any employment. Should the Applicant G.S. seek a review of support, the Respondent may seek an imputed income to the Applicant different than that set out above, without need of establishing a material change of circumstances.
The Applicant G.S.’s child support obligations including s. 7s shall constitute a first charge as against his estate in the sum of $100,000.00 in favour of the Respondent S.B.
UNDER THE FAMILY RESPONSIBILITY AND SUPPORT ARREARS ENFORCMENT ACT:
- Unless the order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amount owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
UNDER THE COURTS OF JUSTICE ACT:
- This order shall bear post-judgment interest at the rate of 4.0% per annum effective from the day of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default.
Costs
112S.B. has been entirely successful on this trial and is entitled to an order for costs. If the parties are unable to agree on the quantum payable, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:
The Applicant/Father to serve and file his submissions by December 30, 2022;
The Respondent/Mother to serve and file her submissions by January 13, 2023; and,
The Applicant/Father to serve and file his reply, if any, by January 20, 2023.
Engelking J.
Date: December 15, 2022
COURT FILE NO.: FC-17-1480
DATE: 2022/12/15
ONTARIO SUPERIOR COURT OF JUSTICE
RE: G.S., Applicant
AND
S.B., Respondent BEFORE: Justice Engelking COUNSEL: Applicant, Self-Represented
Jennifer Jolly and Mary Cybulski, for the Respondent
ENDORSEMENT ON MOTION
Engelking J.
Released: December 15, 2022
SCHEDULE "A"
COURT FILE NO.: FC-17-1480
DATE: 2022/08/05
ONTARIO SUPERIOR COURT OF JUSTICE
RE: G.S., Applicant
AND
S.B., Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Applicant, Self-Represented
Jennifer Jolly and Mary Cybulski, for the Respondent
HEARD: August 2- 4, 2022
ENDORSEMENT
ENGELKING J.
1This is my evidentiary ruling on the ability of Mr. S.’s proposed participant expert, Dr. Dino Zuccarini, to testify in this trial, for which submissions were received from the parties in writing.
2A participant expert is defined in Rule 20.2 of the Family Law Rules as a “person who is engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events in issue.”
3As is noted in Westerhof v. Gee Estate, 2015 ONCA 206, a participant expert is only able to speak to “relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.”
4Dr. Zuccarini is a registered Clinical Psychologist whom Mr. S. has been seeing individually since August of 2020, for a total of 35 times.
5Dr. Zuccarini previously saw Ms. B. individually on 49 occasions between February 2013 and September of 2017, and he saw Ms. B. and Mr. S. together for couples counselling on 5 occasions between 2014 to 2017.
6Dr. Zuccarini has voluntarily sworn an affidavit dated July 22, 2022. Although he is not S.B.’s treating psychologist and has not had any interaction with her since at least 2017, Dr. Zuccarini provides opinion evidence in his affidavit regarding:
Ms. B.’s purported diagnosis, for which he has never tested her nor made, and the effectiveness or ineffectiveness of her current treatment, including DBT, without ever speaking to her treating psychologist and based solely on information from Mr. S.
The risks associated with alcohol recidivism and how they may apply to Ms. B., although he has made no personal observations or examinations of Ms. B. regarding same.
The nature of Ms. B.’s relationship with J., not having spoken to Ms. B. since 2017 and having never seen or assessed J. in any way
Critiquing portions of Victoria Hasbani’s December 31, 2021, report without having seemingly read the full report, and without having spoken to Ms. B. since 2017 or ever having seen or assessed J. in any way, nor having ever conducted a parenting assessment
Diagnosing J. by inference with “attachment trauma” without having spoken to Ms. B since 2017 or ever having seen or assessed J.
Referring to J. as having been “abandoned” without having spoken to Ms. B since 2017 or ever having seen or assessed J.
7Opinion evidence is presumptively inadmissible. It may, however, be admissible if it meets the two-part test set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2.S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2SCR 182.
8The first part of the test, as set out in Mohan, is for the court to determine threshold admissibility based on 1) relevance, 2) necessity, 3) the absence of any exclusionary rule and 4) a properly qualified expert.
9The second part of the test, as set out in White Burgess, if threshold admissibility is met, is for the court to exercise its’ gatekeeping role by determining whether the benefits of admitting the proposed evidence outweigh its potential risks.
10Turning to the first of the four factors in the first step of the test, that of threshold admissibility, Dr. Zuccarini’s opinion evidence as a participant expert pertaining to his diagnosis and treatment of Mr. S is relevant to the proceedings and would therefore meet the threshold.
11With respect to necessity, opinion evidence regarding the diagnosis and treatment of Mr.
S. may assist the trier of facts in ascertaining Mr. S.’s capacity to act as parent to J. and to coparent or cooperate with Ms. B. However, while Dr. Zuccarini indicates that he has diagnosed Mr. S. with Post Traumatic Stress Disorder, he has provided no information about his diagnostic process, treatment of Mr. S. and/or his progress in managing his PTSD. His evidence in this regard is, therefore, not that helpful to the court.
12With respect to the absence of an exclusionary rule, opinion evidence is an inference from observed facts as per R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 at 409. While an opinion about Mr. S’s diagnosis and functioning may meet the threshold based on Dr. Zuccarini’s observations of him, any other opinion contained in his affidavit does not, as they are all based entirely on hearsay from Mr. S. over the past five years. Dr. Zuccarini has observed nothing of Ms. B, Ms. B and Mr. S.’s interactions since 2017 or of J. ever. He has never spoken, moreover, to Ms. B.’s treating psychologist. Dr. Zuccarini’s opinions are not based on observed facts; rather, they are based almost exclusively on what he has been told by Mr. S.
13Finally, with respect to Dr. Zuccarini’s qualifications, Ms. B. concedes that he is a registered psychologist with years of training and practice. No CV was provided to the court, so I am unable to confirm his qualifications even on a cursory level. Nevertheless, subsumed within the category of a properly qualified expert in this branch of the test are the concepts of independence and impartiality. Dr. Zuccarini is not independent, indeed he appears to have been retained by Mr. S. to act in the role of a litigation expert in the guise of a participant expert. Nor is Dr. Zuccarini impartial. He relies almost entirely on information provided to him by Mr. S. to opine on Ms. B.’s diagnosis, current functioning and treatment, as well as to opine on J.’s state of being, what is wrong with Ms. Hasbani’s report and what would be in the boy’s best interests. He
has seen neither Ms. B. for five years nor J. ever. He is so far beyond his scope in terms of the opinions proffered in his affidavit that his opinions on anything, including Mr. S.’s mental health, are frankly rendered totally unreliable.
14Indeed, it is shocking, and I would think possibly in breach of some ethical obligation that Dr. Zuccarini has to Ms. B., that he would render an opinion about her at all without her express consent, even if it is one from 2017. Certainly, he is not qualified, and was likely not authorized by Ms. B., to give an opinion about her in 2022.
15I find it equally shocking that Dr. Zuccarini does not seem to consider his individual work with Mr. S., after having seen Ms. B. individually and both together in couples counselling, and specifically his proposed testimony against a former client, to constitute a serious conflict of interest.
16For these reasons, I find that Dr. Zuccarini does not meet the test for threshold admissibility as set out in Mohan, and he will not be permitted to testify in this matter.
17Even if he did meet the threshold test, which he does not for the reasons stated, I would find, in my gatekeeper function, that the risks associated with Dr. Zuccarini’s biased, unbalanced opinions based on almost exclusively on what he has been told by Mr. S. for five years far outweigh any benefit his evidence would provide.
Madam Justice Tracy Engelking
Date: August 5, 2022
COURT FILE NO.: FC-17-1480
DATE: 2022/08/05
ONTARIO SUPERIOR COURT OF JUSTICE
RE: G.S., Applicant
AND
S.B., Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Applicant, Self-Represented
Jennifer Jolly and Mary Cybulski, for the Respondent
ENDORSEMENT
Engelking J.
Released: August 5, 2022
SCHEDULE "B"
Superior Court of Justice, Family Court Cour supérieure de justice - Cour de la famille
Court File Number / Numéro de dossier du greffe
FC-17-1480
(Name of court / Nom du tribunal)
Endorsement Sheet /
Page d'inscription
at / au
161 Elgin Street, Ottawa, ON K2P 2K1
(Municipality / Municipalité)
Date
Applicant(s) / Requérant(e)(s) :
G.S.
Present / Comparaît
October 31,
2022
JUSTICE ENGELKING
Counsel / Avocat(e) :
Present / Comparaît
Duty Counsel /
Avocat de service
Respondent(s) / Intimé(e)(s) : S.
. B.
Present / Comparaît
Counsel / Avocat(e) :
JENNIFER E. JOLLY (not present)
Assisting: M. Cybulski
Present / Comparaît
Duty Counsel /
Avocat de service
Order to go in accordance with minutes of settlement or consent filed. /
Ordonnance conformément au procès-verbal de l’audience de transaction ou le consentement déposé.
ENDORSEMENT SHEET/PAGE D’INSCRIPTION
The Applicant, Mr. G.S. has brought a motion requesting an order that I recuse myself from the trial of this matter on the basis that there is a reasonable apprehension of bias. He also seeks an order that the matter be set down for hearing in the January 2023 trial sittings.
Justice Audet has dealt with the latter issue in her case management endorsement of October 19, 2022, in which she has ordered the trial to proceed in the November 2022 trial sittings, whether before me or another judge, if Mr. S.’s motion is granted.
Mr. S. has filed a 46 page, 314 paragraph affidavit in support of this motion which was sworn on September 30, 2022. It reiterates much of the evidence contained in his trial document, as well as his previous affidavits before the court on temporary hearings. Most of it is irrelevant to the request he is making on this motion; rather it is a restatement of his overall position and his theory of the case. The basis of Mr. S’s position, however, with respect to the allegation of bias appears to be that he does not agree with rulings I have made to date. These include evidentiary rulings with respect to the admissibility of audio/video recordings he has made, the admissibility of the affidavit of his psychologist, Dr. Zuccarini and the doctor’s ability to testify, and the terms of adjournment I implemented upon the adjournment of the trial in August.
Mr. S. takes particular offence to the order of August 5, 2022, in which I implemented a week on/week off parenting schedule pending the return of the trial in September, which was again adjourned due to both Mr. S.’s unwillingness to participate and Ms. B. bringing a motion for the appointment of an amicus curaie, which was granted.
Mr. S. asserts that I have villainized him in some way. On the contrary, as can be seen in my endorsement appointing the amicus, I have both attempted to assist and have accommodated Mr. S. where necessary. I have noted that the January and August adjournments were at his request, while the May adjournment was the result of the court’s inability to reach it. The result, however, is that factually the trial has now been adjourned four times, for three of which he has been responsible.
FLR-A 9D (01/09) Page 1 of / de 3
- In her submissions on the recusal motion, the amicus raised three issues;
a. The week on/week off term of the adjournment, which she characterizes as a substantive order disrupting the status quo;
b. Cumulative comments by the court amounting to bias; and,
c. Failure to appropriately accommodate Mr. S.
- With respect to the first issue, Mr. S. submits that I granted the term of adjournment without evidence to support it, and that I exhibited bias in doing so. However, Mr. S.’s trial evidence, an 876-page document, sworn but not yet adopted by him on the stand, had been gone through at length by the court over the first three days of the trial in August. Additionally, the report of the OCL clinician, Ms. Hasbani dated December 31, 2021, formed part of the trial record, and all previous endorsements of the court with reference to the evidence led in the temporary hearings were at my disposal, as were three Requests to Admit which were unanswered by Mr. S. While Ms. Hasbani did indicate in December of 2021 that increases to Ms. B.’s parenting time to get to a shared parenting schedule should be made on a gradual basis, many months of Ms. B. continuing to have parenting time with
J. without incident had since transpired. The term of adjournment was based on the evidence available at the time it was made, while at the same time considering the potential prejudice to Ms. B. (and J.) of granting or not granting the adjournment.
Mr. S. also ignores that Ms. B. sought other terms of the adjournment, particularly the September adjournment, for which Mr. S. was also responsible, which I did not grant.
With respect to the second issue, the example provided is that the court stated: “this is a simple case about parenting time and decision making” (as opposed to one that also had many complicated financial issues), which hardly rises, in my view, to a statement which engenders an apprehension of bias. In his affidavit of September 30, 2022, Mr. S. raises other statements, including some in my endorsement on the admissibility of Dr. Zuccarini’s evidence, as exhibiting bias. However, my comments on Dr. Zuccarini are explained within the body of my decision on the admissibility of his evidence, and as I indicate below, are based on the application of the law of evidence.
With respect to the third issue, the amicus submits that the court’s ruling with respect to Dr. Zuccarini “seems unfair” because “he is Mr. S’s primary emotional support person”. The evidentiary rulings, including that involving Dr. Zuccarini, were made based on the law of evidence and the court’s obligation to be the gatekeeper against inadmissible evidence. Accommodation of an individual in a court process does not entail ruling otherwise inadmissible evidence admissible.
Ms. S. relies upon the case of Kingdon v. Kramer, 2015 ONSC 397, which sets out at paragraph 10 the principles which apply where a party seeks the recusal of a trial judge based on a reasonable apprehension of bias. The test or threshold that Mr. S must meet is high, and the quality of the evidence necessary to prove a reasonable apprehension of bias must also be high.
As set out in paragraph 10(b), the applicable test is: “What would an informed, reasonable, and rightminded person, viewing the matter realistically and practically, and having thought the matter through conclude? Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?” The test is objective and the analysis of its application is contextual and fact specific. The extremely challenging
context of this case is set out in my endorsement dated September 22, 2022, regarding the appointment of amicus.
FLR-A 9D (01/09) Page 2 of / de 3
Mr. S., in my view, has not met his onus. While I recognize that it is Mr. S.’s opinion that I am biased, just as he alleges in his affidavit that Justice Parfett and Victoria Hasbani are, I am not convinced that “an informed, reasonable and rightminded person, viewing the matter realistically and practically, and having thought the matter through” would come to the same conclusion.
Mr. S.’s motion for an order that I recuse myself from hearing the trial based on a reasonable apprehension of bias is dismissed. Pursuant to the endorsement of Justice Audet dated October 19, 2022, the trial shall recommence on the first day of the November 2022 trial sittings.
Engelking J.
NOTE REGARDING THE RECORD: The official record of a conference is the endorsement prepared by the presiding judge or master. Participants are advised that it is the policy of the Superior Court of Justice that discussions taking place at conferences are otherwise privileged and confidential. Although a reporter was present and the proceeding was recorded, such recordings at conferences are for use of the presiding judicial official, similar to his or her own notes. As such it is the policy of the court that transcripts are not available. Any request for a transcript or access to an audio recording must be made by motion on notice and will be granted only in unusual circumstances.
REMARQUE AU SUJET DU PROCÈS-VERBAL : Conformément à la politique de la Cour supérieure de justice, les discussions ayant lieu lors des conférences constituent des discussions confidentielles et privilégiées. Bien qu’un sténographe soit présent et que l’audience soit enregistrée, l’enregistrement n’est effectué qu’à titre de référence pour le juge présidant l’audience, comme s’il s’agissait de ses propres notes. Ainsi, le dossier officiel de toute conférence s’avère l’inscription préparée par le juge ou le protonotaire ayant présidé l’audience. Par conséquent, les parties ne peuvent pas obtenir de transcription de la conférence. Si, en raison de circonstances exceptionnelles, une partie souhaite tout de même demander une transcription ou un enregistrement audio, elle doit présenter une motion avec préavis à cet effet.
FLR-A 9D (01/09) Page 3 of / de 3
Footnotes
- Transcript of April 27, 2018 “Recording of Conversation between [G.S.] and Tiffany Sametz-Dinelle, Caselines page A1781
- Temporary Order of Justice Ryan Bell dated May 23, 2018
- Trial Exhibit #90, Ottawa Police Services Occurrence Report #2018-142859
- December 1, 2020 text message from G.S. to C.B.
- November 16, 2021 text message from G.S. to C.B.
- Trial Exhibit #94, Discontinued Report of the Children’s Lawyer dated June 6, 2018
- Trial Exhibit #59, Brayden Supervision Notes, September 25 to December 12, 2021. After the first one, G.S. “sprayed” J. with a disinfectant.
- Trial Exhibit #64, DriverCheck Contact Update dated July 19, 2021
- Trial Exhibit #65, DriverCheck Invoice dated January 2, 2022
- Trial Exhibit #18, Onepointscreen dated July 21, 2020, Exhibit #7, Request to Admit dated July 6, 2022, containing DriverCheck breath and urine test results from collections on August 28, 2020, September 16, 2020, October 28, 2020, November 10, 2020, November 26, 2020, December 4, 2020, December 10, 2020, December 17,
- Trial Record, Tab 13, Assessment of Victoria Hasbani dated December 31, 2021
- Trial Exhibit #36, Screen Shot of J.’s phone, March 30, 2022
- Trial Exhibit #33, Screen shot of J.’s phone, May 21, 2022
- Trial Exhibit #60, PDF letter from G.S. to S.B. dated April 11, 2022.
- Trial Exhibit #66, Undertaking of G.S. dated October 27, 2022
- Endorsement of Justice Audet dated July 12, 2022.
- Trial Exhibit #24, OFW message from G.S. to S.B. dated August 15, 2022
- Trial Exhibit #30, email exchange between G.S. and J. Jolly dated October 20-21, 2022
- Trial Exhibit #31, email from G.S. to J. Jolly dated October 21, 2022
- Trial Exhibit #32, screen shot from J.’s phone of a text exchange between G.S. and J.
- Trial Exhibit #39, OFW exchange between S.B. and G.S. dated November 18-19, 2022
- Trial exhibit #40, late November text exchange between J. and S.B.