COURT FILE NO.: FC-20-235

DATE: 2023/08/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JULIAN MALONE

Applicant

– and –

NATASHA CAPPON

Respondent

Jonathan M. Richardson, counsel for the Applicant

Alexandra Kirschbaum, counsel for the Respondent

HEARD: Trial heard on January 30, 31, February 1, 2, 3, March 27, 28, 29, 30, 31, April 25, 26 and 28, 2023.

TRIAL decision – part one

AUDET J.

Table of Contents

A. BACKGROUND FACTS AND HISTORY OF LEGAL PROCEEDINGS. 3

1- The legal proceedings and criminal investigation. 6

2- Dr. Jeffrey Sherman – Reunification Therapy. 9

3- Criminal charges laid against the father 13

4- Valerie Morinville – Parenting Assessment 14

5- Brayden Supervision Services. 20

6- Linday Gervais – Recommendations on Reunification Therapy. 21

B. ANALYSIS. 22

1- Legal framework. 22

2- Credibility findings. 24

i) The father’s evidence. 24

ii) The father’s witnesses. 25

iii) The mother’s evidence. 26

iv) The mother’s witnesses. 34

v) Conclusions on credibility. 37

3- Allegations of family violence. 37

i) Family violence – legal framework. 38

ii) Family violence – application to this case. 39

4- Allegations of child and sexual abuse. 46

5- The maternal grandparents’ involvement 54

6- The children. 60

7- The mother’s behaviour 66

8- N.M. 70

9- A.M. and C.M. 74

10- Final conclusions on parenting. 75

C. PARENTING ORDER.. 76

[1] This trial was heard over the course of thirteen days. By the time it was heard, the parties had resolved all claims raised in their pleadings except for those related to parenting, spousal support, the mother’s claim for a restraining order and the issue of what to do with the parties’ frozen embryos. In the context of her closing submissions, the mother was no longer seeking a restraining order, but rather a non-contact order which she proposed could be mutual.

[2] Despite the above, the primary focus of this entire trial was the parties’ three children. More specifically, I was asked to decide what parenting order would be in their best interest. Because this issue is most pressing, I am releasing this trial decision in two parts: the first part below focuses on parenting issues (including the mother’s request for a no-contact order), and the second part, to be released later, will deal with all remaining issues.

A. BACKGROUND FACTS AND HISTORY OF LEGAL PROCEEDINGS

[3] The parties met in February 2006 and began living together in December 2007 or early 2008. They married on June 21, 2008 and separated on March 21, 2019. They have three children together; N.M. who was born in June 2011 (12), A.M. who was born in May 2014 (9), and C.M. who was born in June 2016 (7).

[4] When the parties met, the father was completing his clerkship with the Federal Court of Canada and the mother was already part of the labour force having completed a Business Masters’ Degree. After a brief stay in Edmonton where he worked for a few months in 2007-2008, the father came back to Ottawa where he found employment as a lawyer, and the parties got married in the summer of 2008.

[5] It is apparent that one of the things that brought these parties together initially, and kept them together for the next eleven years, was their shared desire to have children. The evidence heard over the course of this trial reveals that very shortly after the parties married, their relationship with one another and with each other’s extended families was very difficult and filled with conflict. The parties had a very different family life and upbringing, and their relationship with extended family members, daily routines and family traditions were very different. As a result, they had very divergent views on how to raise their children and frequently disagreed on many things about their family life.

[6] As will be explained in more details later in this decision, the father’s relationship with the mother’s parents (the children’s maternal grandparents) was very difficult from very early on after after the parties’ marriage. As a result of a conflict between the father and his in-laws which arose during a Christmas dinner in 2014, the father thereafter refused to attend the Cappon’s Christmas celebrations, and thereafter generally avoided all their family gatherings.

[7] Similarly, the relationship between the mother and the father’s extended family (his sister Justine and his mother, the children’s paternal grandmother) became strained as well. From on or about the same time, the mother’s participation in the Malone family’s gatherings weaned down, and she generally avoided her in-laws.

[8] The strife that occurred during the Cappon’s 2014 Christmas celebrations led the parties to consider a separation. At that time, the mother was pregnant with A.M. Although the parties did not separate, the father testified that by the end of 2014, their relationship had essentially morphed into a co-parenting relationship. Despite attending a couple’s counselling session in 2017, the parties’ marriage could not be saved. Both parties acknowledged during their testimony that there had been very little happiness, if any, in their relationship for several years.

[9] The parties’ separation occurred on March 21, 2019 (a Thursday), when the father confessed to the mother that he had rekindled his relationship with an old flame, Geraldine, over the previous couple of months and that he wanted to separate. Although this could not have come as a surprise to the mother, at first she expressed sadness and disappointment about the father’s decision. For her, keeping the family together at all costs was a priority.

[10] The following weekend (March 22 to 24, 2019), the father left the matrimonial home to spend the weekend with Geraldine in Montreal. Over that weekend, there were many phone calls and text exchanges between the parties during which the mother, according to the father, refused to accept the separation, accused him of destroying their family, and tried to convince him to keep silent about his intention to separate. Upon the father’s return on the Sunday, the mother asked him to go to his mother’s home for the night, which he agreed to do. He never returned to the matrimonial home thereafter.

[11] From that weekend and for the next eighteen months, the father moved into his mother’s home. The father admitted that during the time he lived with his mother, the atmosphere in the home when the children were in his care was stressful and difficult. The paternal grandmother was not used to having three small children in her home, which was too small for two adults and three children, and as a result the father spent most of his parenting time trying to manage the children’s behaviour instead of trying to understand why they were acting out. This led to some conflict between the father and the paternal grandmother to which the children, by the father’s own admission, were exposed. This also put a strain on the father’s relationship with the children.

[12] Initially, the mother was not prepared to allow the father to care for the children more than one day per week, in the matrimonial home (and in her presence). This led to significant conflict between the parties who then retained counsel. By September 2019, the father’s parenting time had expanded to every other weekend (including two overnights), in addition to one mid-week dinner every week[^1] with an overnight every other week.

[13] On November 19, 2019, the father had the children in his care overnight as he was celebrating his 40th birthday. The following day, he dropped N.M. at school in the morning and the other two children at daycare. The next day, a child protection worker accompanied by the police attended his home and told him that he was under investigation following a complaint made to the Ottawa Children’s Aid Society (“the CAS” or “the Society”). The father had no contact whatsoever with any of the children for the next five months.

[14] The father testified that he was never told what the complaint had been about until the joint investigation by the CAS and the police was closed in February 2020. It was only then that the father learned that he was under investigation as a result of a disclosure by N.M. that he had been inappropriately touched by his father and exposed to pornography while in his care. The evidence before me in this trial reveals that the Society’s involvement was prompted by a complaint made by Ms. Pearson, an Ontario Victim Services worker, based on information she received from the mother that she had been sexually assaulted by the father, and that she had found evidence of child pornography on the father’s computer to which she believed her children might have been exposed.

[15] In January 2020, the CAS advised the father that the police wanted to interview him. On the advice of his lawyer, the father declined to be interviewed. In February 2020, the joint investigation by the CAS and the police was closed based on their conclusion that the allegations were inconclusive, due in part to the father’s refusal to be interviewed, and because N.M.' disclosure was found to be not credible.

[16] As soon as the father was informed of the nature of the complaints and of the CAS and the police’s conclusions, he insisted on his parenting time with the children resuming immediately. However, the mother refused to do so until the CAS “provided their full report” (closing letter), which was only provided a few weeks later.

1- The legal proceedings and criminal investigation

[17] On February 7, 2020, the father initiated this court application seeking equal parenting time and sole decision-making responsibility. He also sought a divorce, child support, the equalization of the parties’ net family property and, in an Amended Application filed on March 18, 2022, the destruction of several frozen embryos kept in storage at a fertility clinic located in Boston, Massachusetts.

[18] On February 18, 2020, immediately after her meeting with the CAS (during which she was advised that the investigation would be closed) and roughly ten days after being served with the father’s Application, the mother attended the OPP station to file a complaint against the father in relation to the following alleged events;

• That the father had been verbally aggressive and abusive towards her since 2009;

• That when she was pregnant with the parties’ second child (A.M.), the father had pinned her to the bed and yelled obscenities in her face, including death threats;

• That when she was pregnant with the parties’ third child (C.M.), the father had physically tried to prevent her from going to the hospital or calling an ambulance;

• That on March 20, 2019, the father had sexually assaulted her in their house;

• That she had located pornographic videos on the father’s laptop and N.M.’ iPad, some of which showed very young females and some involved violence;

• That she had recently discovered that the father had installed a tracking device on her iPhone, iPad, laptop and on the maternal grandfather’s computer to remotely track them and view what was on their devices. She believed that the father was stalking her; and,

• That the father had misappropriated her 2018 tax refund.

[19] The police investigated these claims for the better part of 2020, and as will be discussed in more detail below, in November or December 2020 charged the father with three criminal offences: assault, sexual assault and uttering threats.

[20] In her Answer filed on March 27, 2020, the mother sought primary care of the children, sole decision-making responsibility, child and spousal support, as well as the equalization of the parties’ net family property. In her Amended Answer filed on December 29, 2022 (a few weeks before the trial in this matter began), the mother added a claim for damages based on the tort of family violence and for a restraining order. She also disputed the father’s request for the destruction of the parties’ frozen embryos, citing moral and religious considerations, and indicated a preference to having them stored and ultimately donated.

[21] As stated earlier in these reasons, by the time this trial was heard, the parties had resolved all the claims raised in their pleadings with the exception of parenting time, spousal support, the mother’s claim for a restraining order and the issue of what to do with the parties’ frozen embryos. In the context of her closing submissions, the mother was no longer seeking a restraining order, but rather a non-contact order which she proposed could be mutual.

[22] After the joint investigation of the CAS and the police was closed in February 2020, and before the father was ever made aware of the ongoing police investigation in relation to the mother’s complaint against him, a visit was arranged between A.M., C.M. and their father at their school and at the invitation of the school principal (N.M. attends a different school than his two younger brothers). This visit, which took place on March 6, 2020, was the first contact A.M. and C.M. had had with their father in five months. They were reportedly thrilled to see their father, and the reunion was happy and very emotional.

[23] On or about March 19, 2020, the father’s parenting time with the two younger children resumed, but N.M. did not resume visits with his father until April 23, 2020. According to the mother, N.M. did not want to see his father and was extremely resistant to any form of contact with him. By the beginning of April 2020, however, A.M. and C.M. had resumed their parenting time with their father every other weekend as well as one evening per week, not including an overnight on the week of his weekend with them and including an overnight on the off week.

[24] This schedule did not include N.M. Beginning on April 23, 2020, N.M. began seeing his father for 30 minutes per week (unless he refused contact), supervised initially by a family friend and later by a professional. N.M. often did not stay the entire 30 minutes. By the time the parties agreed to proceed with a parenting assessment in June 2020, N.M. would see his father in the park across from the former matrimonial home once per week, for 30 to 45 minutes, unsupervised, on either Thursday or Friday following the schedule for A.M. and C.M. These visits were very problematic as N.M. refused to engage with his father, and frequently requested that the visits end early.

[25] In June 2020, the parties agreed to retain the services of Ms. Valerie Morinville to investigate and complete a comprehensive parenting assessment. There were some delays in the completion of this assessment due to the resurgence of COVID-19 cases in 2020-2021, Public Health restrictions and the assessor’s unexpected leave of absence for medical reasons. Nonetheless, the assessment process was completed at some point in the Spring of 2021 and the report released on April 29, 2021.

2- Dr. Jeffrey Sherman – Reunification Therapy

[26] A few days before the first case conference in this proceeding, which was set to be heard on August 7, 2020, the mother advised the father that she had found a therapist for N.M. and that she hoped he (the father) would participate in this counselling process. The father had never been consulted about N.M. engaging in counselling, let alone about the choice of counsellor. Nonetheless, the father confirmed that he was prepared to participate. It was only when he spoke to Dr. Sherman after the August case conference that the father found out that N.M. had been seeing Dr. Sherman since March 2020.

[27] Dr. Sherman is a registered psychologist in Ontario since 1979. In his testimony he explained that he specializes in working with children who suffer from autism, ADHD, anxiety, ODD, disability and conduct disorders, as well as with children involved in high conflict divorces. Dr. Sherman testified as a participant expert. Throughout his testimony it was obvious that he had a profound understanding of resist-refuse dynamics for children caught in high conflict separations, as well as significant training and experience in reunification work.

[28] Dr. Sherman explained that he was first contacted by the mother in March of 2020 to see if he would see N.M. In his notes, Dr. Sherman wrote that the mother’s stated intention for seeking his services was to help N.M. adjust to the potential situation of seeing his father again. He knew that this case was a high conflict separation and for that reason, he did not see the father for several months, wanting to familiarize himself with the case first and get a clear view of N.M.’s perspective before meeting the father (who he knew was the rejected parent). It is at his prompting that the mother, after several months, asked the father if he would be prepared to participate in sessions with Dr. Sherman.

[29] Dr. Sherman explained that N.M. expressed many reasons why he did not want to see his father during their initial meetings with him. They included:

• His dad screams at him all the time;

• He hurts him;

• Because he (N.M.) is interested in sports, not in seeing his dad;

• Because he has been exposed to pornography in his father’s care;

• Because his father touched his penis; and,

• Because his father left him and he is angry at him.

[30] Despite all of N.M.’s many complaints about his father, and his strong resistance to having contact with him, Dr. Sherman concluded after meeting with the father and based on his counselling sessions with N.M. that it was important for him to resolve his issues with his father. He also did not believe that it would be detrimental to N.M.’s mental health to continue to go on visits with his father as they worked through the process of alleviating his anxiety around, and resistance to, contact with him.

[31] Throughout the months of August to December 2020, Dr. Sherman continued to work with the family towards that goal, which at the time the mother maintained she supported. It is important to note that Dr. Sherman’s reunification work was taking place contemporaneously with Ms. Morinville’s parenting assessment. It is also important to note that in the summer of 2020, the father had moved in his own apartment, and this had had a very positive impact on the quality of his parenting time with C.M. and A.M.

[32] In the Fall of 2020, the services of Jennifer Jurkofsky were retained by the parents, at Dr. Sherman’s recommendation, to supervise the father’s visits with N.M. and provide additional hands-on support during those visits. Ms. Jurkofsky is a senior psychotherapist with whom Dr. Sherman has teamed up frequently to provide support to children and parents in the context of resist-refuse situations such as N.M.’. The goal of the supervised visits was to rebuild the relationship between father and son to the point where N.M. would feel comfortable having regular unsupervised visits with his father in his home, along with his other siblings. The objectives of the weekly supervised visits included working to facilitate connection through experience by promoting engagement, supporting N.M. through observing interactions and addressing concerns, and parent coaching for the father based on each session's observations.

[33] After many supervised visits, Ms. Jurkofsky reported that N.M. was able to play with his father and to have fun during those visits. However, whenever N.M. was catching himself enjoying his visits with his dad, he would shut down and ask to be brought back to his mother. Nonetheless, Dr. Sherman was of the view that progress was being made.

[34] During one of his sessions with N.M. in December 2020, Dr. Sherman found out that the mother had enrolled him (and A.M.) in counselling services with another psychologist, Dr. Cocea, from the Eastern Ottawa Resource Center (OERC), and that he had started to see her at some point in the Fall of 2020. This was done without consultation with the father or Dr. Sherman who, up until that point, was providing that psychological support to N.M. in the context of the reunification work he was doing.

[35] When Dr. Sherman found out that N.M. was seeing another psychologist, he had a telephone conversation with the mother during which he explained that he could not continue to provide psychological support to N.M. while he was receiving these services from another psychologist. However, he told the mother that he was prepared to continue to support the reunification work between N.M. and his father.

[36] Following that discussion, on January 20, 2021, Dr. Sherman sent an email to the parties outlining his recommendations as to the ongoing reunification work, pointing out that “I am also available to help N.M. with this, providing it does not conflict with the counselling he currently receives from other sources.” He proposed the following reintegration plan to the parents:

1. Unsupervised visits continue as per agreement between N.M. and his father. These should be weekly and the type of activity should be negotiated, not the fact of the visit. The visits should start at 30 minutes and increase to 1 hour.

2. Supervised visits should continue to occur to help N.M. accept that visits can occur safely in environments proposed by his father (eg. his father's home). Professional help will continue to be needed to structure the gradual steps necessary to achieve the kind of visits enjoyed by N.M.'s siblings with their father, and to advise both parents in how to support N.M.'s ability to achieve this. The goal is for N.M. to be comfortable in accepting overnight visits. I think that it is reasonable for this to occur before the end of the next 6 months.

3. A schedule should be created each month to specify the days, length of time, and type of activity for N.M. and his father. Jennifer Jurkofsky should create this in consultation with N.M., his father, and his mother.

Parents should also be available to receive information concerning how to best support N.M. in overcoming resistance to achieving the goals. I am also available to help N.M. with this, providing it does not conflict with the counselling he currently receives from other sources. I believe that this plan is in the best interests of N.M.'s mental health, even if he currently holds other views. (my emphasis)

[37] Following receipt of this email, on January 29, 2021, the mother terminated Dr. Sherman’s services as well as Ms. Jurkofsky’s services. This was a unilateral termination by the mother without any consultation with, or the consent of, the father. It is also only at that time that the father found out that the mother had enrolled N.M. and A.M. in counselling services with Dr. Cocea, without any consultation with him.

[38] For reasons that will be explored in more detail below, I find as a fact that by retaining the services of Dr. Sherman, the mother had hoped to gain his support in limiting N.M.’s contact with his father. When that did not work, she searched for another counsellor, one who would be more likely to support her goal, which she found in the person of Dr. Cocea. As will be explained below, Dr. Cocea works exclusively with mothers who have experienced family violence. She made it clear to both parties that she does not work with fathers.

[39] On or about the same time the mother unilaterally terminated Dr. Sherman’s services, her father, Dr. Cappon, filed a complaint against him with the Ontario College of Psychologists. In his complaint, Dr. Cappon alleged that Dr. Sherman held undeclared bias, conducted himself unprofessionally, abused his putative or assumed authority, failed to treat N.M. to the best of his ability, and conducted himself with dishonesty. The mother maintained at trial that she was never made aware of her father’s complaint against Dr. Sherman to the College of Psychologists until he had filed it. As will be explained later in these reasons, I do not believe her.

[40] Unfortunately, the Ontario College of Psychologists (as other regulatory colleges) continues to take the position that it must investigate every complaint, without any initial screening for potential abuse of the complaint process for litigation or strategic purposes[^2]. As it would have been unethical for Dr. Sherman to continue to provide services to this family given the complaint filed against him by Dr. Cappon, there was no ability on the part of the father or the court to keep him involved with this family thereafter.

[41] Dr. Cappon’s complaint against Dr. Sherman was fully investigated by the College and dismissed in its entirety.

[42] From January 2021, when Dr. Sherman’s involvement with this family ended, the father’s communications with N.M. became non-existent and the progress achieved during Dr. Sherman’s and Ms. Jurkofsky’s involvement was completely lost. Visits between N.M. and his father continued to take place once a week, for short periods of time, and remained very challenging for both.

3- Criminal charges laid against the father

[43] On or about November 19, 2020, a few weeks before the mother unilaterally terminated Dr. Sherman’s services, the father was charged with one count of assault, one count of uttering threats and one count of sexual assault against the mother. Those charges were laid based on alleged events which would have taken place in January or February 2014 (uttering death threats), March 16, 2016 (assault) and March 21, 2019 (sexual assault).

[44] The father was released on the condition that he have no communication with the mother, except via email for the purpose of discussing matters about the children, and that he not be within 150 meters of the mother’s residence, place of employment, school, or other place where he knew she might be, with the exception of the park across the matrimonial home where his weekly supervised visits with N.M. were then taking place, and for exchanges of the children for his parenting time.

[45] As a result of the father’s release conditions, and until the criminal trial was completed two years later, the father was required to confirm each week, via counsel, whether N.M. would see him or not because if he were to show up at the park for a visit that N.M. did not attend, he would be considered in breach of his conditions. This gave the mother – and N.M. – an inordinate amount of power over N.M.’s parenting time with this father.

[46] In January 2021, after the mother terminated Dr. Sherman’s services, she and N.M. agreed to unsupervised visits with his father, but still to take place in the park across the matrimonial home, and only if N.M. was allowed to return to his mother’s home whenever he wanted. N.M. attended his visits wearing a watch, and generally asked to return to his mother’s home well before the 30 to 45 minutes of the visits had passed.

[47] The father’s criminal trial was held in December 2022, and all charges were dismissed.

4- Valerie Morinville – Parenting Assessment

[48] At the time Ms. Morinville completed her parenting assessment, Dr. Sherman’s services had been terminated and the father had been charged with the three criminal offences described above, but the criminal trial had not yet been held (nor would it be until well after Ms. Morinville completed her assessment). Her written report was released on April 28, 2021.

[49] It is important at this juncture to note that Ms. Morinville’s assessment – containing 117 pages – was very thorough. Aside from the usual interviews with the parties, the children, observation visits and interviews of extended family members, Ms. Morinville interviewed the children’s pediatrician, the parties’ doctors and various other health and mental health professionals involved with the family, teachers and caregivers from the children’s schools and daycare, child protection workers, access supervisors as well as Dr. Sherman and Dr. Cocea. Ms. Morinville reviewed thousands of pages of medical records, CAS records, police records, the children’s school records as well as court documents and emails exchanged between the parties and third parties.

[50] In November 2020, in the middle of her investigation, Ms. Morinville was obligated to contact the CAS due to comments N.M. made during an interview with her. As a result, the CAS got involved again and all three children were interviewed once more. For a second time, the CAS received no disclosure from the children that anyone had touched them inappropriately, despite N.M.' comments to the contrary. The file was closed again.

[51] It is important to note that, throughout the course of Ms. Morinville’s assessment process, the father was not able to provide much information in relation to the mother’s allegations of family violence which led to the criminal charges being laid against him, because those charges were still pending. Other than adamantly denying the mother’s allegations, there was no ability for him to provide his own version of the alleged events.

[52] The following observations made by Ms. Morinville in her report are highly relevant to the recommendations that she ultimately made for this family, and to the decision I have to make two years after her report was released:

In relation to decision making responsibility:

• There remains a high degree of conflict between the parents, and the children have clearly and unfortunately been exposed to that conflict;

• Both parents agree that a co-parenting relationship will be difficult moving forward and neither feels the other would be amenable to working cooperatively for the sake of the children;

• In relation to decision-making, there is no simple solution that could work for this family. By all counts, the mother is the one who organized the children's schoolwork, activities, and medical appointments during the marriage and since the separation. However, despite the mother’s assertion that she would consult the father extensively if granted sole decision-making responsibility, the reality since the separation is that she has not. She has made decisions for the children without consultation and, too often, without notification either;

• The parents have very different views on what is in the "best interests" of the children, and the consequences of some of those decisions have a high financial price. The parents disagree on whether the children should continue to attend private school, what medical treatment they should be given and the extent to which they need medical intervention, whether the children should be involved in as many extracurricular activities as the mother would want and whether they should pursue these interests at the competitive level or not;

• Ms. Morinville was concerned about the mother’s views on matters of health. More specifically, while she had no concerns that the mother would seek out appropriate medical assistance for the children when needed, she worried that the mother’s perception on health matters might be skewed and that the children could potentially be subjected to unnecessary medical interventions if sole-decision making responsibility was given to her;

• In relation to extracurricular activities, it is difficult to recommend that the father be given sole decision-making responsibility as he has historically been less involved in their activities and has not ensured they attend sports lessons on his parenting time. At the same time, it is difficult to recommend that the mother have final decision-making authority for the children's activities as her views about the children's engagement is so pronounced as to make real consultation with the father negligible;

In relation to parenting time:

• In her view, there remains too many questions to recommend that the children reside with both parents equally. A.M. and C.M. were doing well with the current schedule, despite the concerns raised, but N.M. was not ready to reside part time with his father (my emphasis);

• Given N.M.' resistance to his father, the time and assistance required to help the family work through that concern, and the fact that the younger two children were already on a different schedule than N.M., it would not be healthy to add significant changes to the children’s schedule. However, once N.M. has been following the same schedule as his brothers, and if the other questions have been sorted out, then there might be a case to be made for the children to reside equally with each parent (my emphasis);

• There were real concerns raised by professionals involved with the family about how much information concerning the adult conflict the children have been exposed to in their mother’s care. Professionals have pointed out to her on more than occasion that it is not healthy for the children to be exposed to negative messages about their father or to be informed of the adult conflict. Whether or not the mother intentionally engaged in this behaviour was unclear;

• One thing that all the children consistently remarked was the amount of time the father spends on his iPad or telephone. However, Ms. Morinville found it difficult to know what they were repeating from adult conversations and questions from their mother, and what was their real experience. Regardless, it would be wise for the father to reconsider how engaged he is with the children during his parenting time and put the electronics away.

[53] In relation to N.M.’s relationship with his father, Ms. Morinville observed the following:

• N.M. is a bright, articulate, engaging child who is, in some ways, mature beyond his years. He has, unfortunately, been placed in a difficult situation. N.M. loves his mother immensely, but sadly he is uncertain how he feels about his father. If N.M. were given his choice, he would not have any further contact with his father (would move "anywhere in Canada" away from him), and he would not want his brothers to have contact either. However, that is not considered to be in N.M.' best interest;

• What has occurred for N.M. since CAS and OPS initially became involved in 2019 has not been beneficial to the child, nor to his relationship with his father. N.M. has told his stories many times over and now one must question if he is perseverating due to the repetition. Each time N.M. tells the stories of what he perceives to be his father's transgressions, it reinforces his belief in their veracity and reduces Mr. Malone's chances for redemption. N.M. does not need further individual therapy. He needs to build a relationship with his father;

• N.M. has been put in a position of having too much power over the decision to see his father. N.M. was only 8 years old when his father's parenting time was stopped by CAS. Since that time, the mother has allowed him to take lead on when, where, how often and for long he spends time with his father, based on the child's comfort level;

• The father does not help himself in his relationship with N.M.. Regardless of the reasons, it is not helpful to consistently ask the child to spend more time with him as this allows N.M. to maintain control over the relationship, which is not healthy for him. It is not helpful when Mr. Malone shows poor judgement by not only videotaping A.M. singing inappropriately, but then showing it to N.M.. It is most unfortunate that Ms. Jurkofsky’s supervision services were terminated by the mother, as the father found her very helpful in guiding him in his relationship with N.M.;

• It is not healthy for N.M. to not have a relationship with his father. There is no evidence to suggest that the father is enough of a risk to N.M. to have his parenting rights terminated or significantly diminished. It is not healthy that N.M. dictates his time with his father. However, his very real anxiety about being with his father must be taken into consideration. A schedule of small steps with appropriate supervision is recommended to allow N.M. to move forward in rebuilding his relationship with his father, and both parents as well as N.M. need to work with a reunification therapist while the stepped schedule is put in place.

[54] On the basis of all the above, Ms. Morinville recommended a joint decision-making responsibility regime for these parents on all issues related to the children, with the ability to engage in arbitration or court process if they were unable to come to a decision.

[55] Ms. Morinville was called to testify during this trial and was able to expand on the reasons why she made such a recommendation given the very high conflict between these parents and their demonstrated inability to communicate and cooperate on most matters pertaining to the children. Her answer was simple: she had real concerns about both parents, and she was simply unable to trust either with sole decision-making responsibility on any areas of the children’s upbringing and well-being.

[56] In relation to parenting time, Ms. Morinville recommended a different schedule for N.M. than for his two younger brothers. For A.M. and C.M., Ms. Morinville recommended the following schedule:

Week One:

Tuesday after school (or 3:00 p.m.) to Wednesday return to school (or 8:00 a.m.), and Friday 3:00 p.m. to Sunday 7:00 p.m.

Week Two:

Either Tuesday after school (or 3:00 p.m.) to Thursday return to school (or 8:00 a.m.) or Wednesday after school (or 3:00 p.m.) to Friday return to school (or 8:00 a.m.)

[57] In relation to N.M., Ms. Morinville recommended a detailed stepped-up schedule beginning with one hour of supervised access per week in the community, increasing on a monthly basis with reduced levels of supervision until N.M. was on the same parenting schedule as his brothers.

[58] This stepped approach was to bring N.M. to the same schedule as his younger brothers by Christmas 2021 and be supported by significant mental health and parenting supports. More specifically, Ms. Morinville made the following recommendations:

1. The father is to participate in attachment parenting therapy.

2. N.M. and his parents will all work with a therapist who is experienced in reunification therapy.

3. Both parents will participate in the New Ways for Families program.

4. Both parents will participate in a course on parenting through high conflict offered at Family Services Ottawa.

5. The mother will work with an individual therapist with a goal of examining her views on health to assist her in having a realistic perception of her health history and to ensure the children are not subjected to unnecessary testing or procedures in the future.

6. Both parents to use Our Family Wizard for communication.

[59] The father complied with all the above recommendations. In addition to this, he also engaged in an anger management course – something that was never recommended to him by any of the professionals involved with this family. The course was highly recommended to him by another father, and he simply thought he might gain useful skills by taking the program.

[60] The mother did not comply with any of the recommendations made by Ms. Morinville in relation to programming and counselling, with the exception of the New Ways for Families which she began at some point while this trial was underway. When the trial resumed in March, the mother advised that she expected to complete the course by the end of April.

[61] Having heard both parties’ entire testimony, with the benefit of solid cross-examination to test the parties’ respective version of the facts, as well as the testimony of many of the people and professionals mentioned above, I feel confident that any questions that remained at the time Ms. Morinville completed her assessment have been satisfactorily answered during this trial. More will be said about this later.

5- Brayden Supervision Services

[62] Following the receipt of Ms. Morinville’s report, the parties attended a case conference during which they agreed to implement her recommendations in relation to the father’s parenting time with the two younger children. Pursuant to the temporary order of Justice Engelking dated June 11, 2021, the father began having A.M. and C.M. in his care in accordance with the following schedule, which remains in place to this day:

Week One:

i. Tuesday after school at 3:00 pm to Wednesday return to school or 8:00 am; and,

ii. Friday 3:00 pm to Sunday 7:00 pm

Week Two

i. Tuesday after school at 3:00 pm to Thursday return to school or 8:00 am; or

ii. Wednesday after school at 3:00 pm to Friday return to school or 8:00 am

[63] By that time, the schedule in place for N.M. required him to have parenting time with his father, at his father’s home, for eight (8) hours every second weekend, in the presence of his brothers, with the use of a supervision service. Brayden Supervision Services (“Brayden”) was being used for this purpose and supervised the father’s parenting time with N.M. from September 2021 to June 2022. N.M. was also required to spend one evening for three (3) hours in the alternate week (to include dinner) with his brothers at his father's home, without supervision.

[64] The above schedule was rarely followed by N.M. Although there was never any report of N.M. having been placed at risk of harm while in his father’s care, or any report of inappropriate behavior on the part of the father, N.M. would still request to leave early. The supervision notes from Brayden confirm that the father engaged in appropriate activities with N.M. and encouraged him to stay for the duration of the visits, to no avail. As N.M. was permitted to call his mother and to decide when he wanted to end his parenting time with his father, he would do so almost every time. Frequently, his mother would call him or text him to ensure he felt safe and to ask whether he wanted her to come pick him up.

6- Linday Gervais – Recommendations on Reunification Therapy

[65] At the June 11, 2021 case conference, the parties agreed to retain the services of another reunification therapist, as recommended by Ms. Morinville, to begin the reunification work between N.M. and his father. In August 2022, the parties retained Linda Gervais to provide recommendations in that regard. Ms. Gervais is a registered social worker with significant past experience working for the Children’s Aid Society in various capacities (including as a Child Protection Worker, Child and Youth Counsellor, Supervisor and Trainer, Foster Care and Assessment Worker and Kinship Worker), and as an addictions and mental health counsellor. She is certified to conduct forensic interviews, psycho-social assessments and reunification therapy and since 2021, she has conducted comprehensive psycho-social and family assessments for the Children’s Hospital of Eastern Ontario (CHEO).

[66] In August 2022, she conducted intake meetings with the parents and with N.M. to assess whether this family was suitable for reunification therapy and if so, to make recommendations on a treatment plan. Ms. Gervais conducted an extensive review of this file, including supervised access reports, selected CAS and police records, Ms. Morinville’s assessment, information from Dr. Sherman, and court orders. She also interviewed both parents and N.M. on a number of occasions. Ms. Gervais testified during this trial as a participant expert, and I found her to be a very credible witness.

[67] Ms. Gervais’s conclusions about N.M. were that he was very aligned with his mother and wanted to please her. Even though N.M. appeared to have realistic reasons to be estranged from his father (based on reports of the father yelling, spending too much time on his iPad and rough handling contained in Ms. Morinville’s report), she was of the view that N.M.’ resistance to contact with his father was disproportional. She explained that N.M. had made many allegations of abuse at the hands of his father but could not provide any specifics in relation to these allegations, for instance the timeframe (month, time of the day) or location of these events.

[68] Ms. Gervais was of the view that N.M. having control over when he left his father’s care was very problematic. While the mother professed to be actively promoting N.M.’ visits with his father, in reality she did not appear to do that. In Ms. Gervais’ view, the mother’s behaviour was undermining the father’s parenting time with N.M. and his ability to make parenting decisions for him. On the other hand, the father was in a difficult position, wanting to put his best foot forward by accommodating N.M.’ requests to leave while trying at the same time to meaningfully parent him.

[69] While she felt that the father needed to deal with past trauma and his sense of guilt over the current situation, Ms. Gervais also felt that the mother needed to work on her anger, frustration and perceptions of the father. In her view, what this family needed was Multi Faceted Family Therapy (MFFT), involving joint reunification therapy between N.M. and his father, as well as individual counselling for the parents and N.M. (with different counsellors), supported by a solid parenting plan allowing full participation by the father in the children’s extracurricular activities and school functions, and ongoing judicial oversight.

[70] For obvious reasons, Ms. Gervais intentionally waited until the father’s criminal trial was completed and a finding as to his culpability being made before completing her assessment and providing her recommendations. Since her report and recommendations were only completed in January 2023, days before the trial in this matter began, there was no time for the parties to consider and implement her recommendations.

B. ANALYSIS

1- Legal framework

[71] Any decision relating to a child must be made having regard, exclusively, to their best interests. When considering a child’s best interests, the court is required by virtue of s. 16 of the Divorce Act, 1985, c. 3 (2nd Supp.) (“the Divorce Act”) to consider the following legal principles:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(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 cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

2- Credibility findings

i) The father’s evidence

[72] I found the father to be a credible and reliable witness at trial. He answered questions in a straight-forward manner and conceded to many points, even when they were not supportive of his case. For instance, much evidence was given during this trial in relation to the father’s use of pornography. The father readily admitted to regularly using pornography during the later part of his marriage to the mother, which he attributed in large part to the lack of intimacy that permeated the parties’ relationship during many years before they separated. When cross-examined on this issue, the father admitted that it was possible that N.M. might have had access to pornography on one of the family’s devices (the family shared cloud accounts), despite all the safety measures he had taken to ensure that these sites would not be accessible by the children while using the family computers and shared devices.

[73] Although it was clear – and understandable given the number of allegations that he had to confront and defend against since the parties’ separation – that the father harboured strong negative feelings and resentment towards the mother and her immediate family members (particularly Dr. Cappon), these feelings did not translate into an urge on his part to denigrate them and counter their offense with accusations of his own. The father was able to acknowledge positives when there were positives about the mother and her family members. For instance, the father readily admitted that the mother was a good and caring mother during their relationship and that he had no concerns about her ability to care for the children on a day-to-day basis – other than her unwillingness to allow the children to have a relationship with him post-separation. The father was also able to acknowledge the very close bond that the children have with their maternal grandparents.

[74] The father demonstrated an ability to see both sides of the situations that were discussed by various witnesses at trial. He did not exaggerate issues or inappropriately characterize events to support his case in this trial. The explanations that he provided in relation to all the mother’s accusations, and in particular her accusations regarding his alleged misuse of technology to track her, were compelling and wholly supported by the documentary evidence presented. He made genuine attempts to remain calm, respectful and appropriate in response to the mother’s counsel’s questions. Although he showed some frustration and annoyance at times, same must be considered in the context of his having been subjected to countless allegations of abuse, neglect and criminal behaviour by the mother and her family.

ii) The father’s witnesses

[75] Other than his sister Justine, the father’s witnesses comprised exclusively of the various professionals who have been involved with this family since this litigation began (Dr. Sherman, Ms. Morinville and Ms. Gervais). Justine testified for roughly one hour. She gave her evidence in a straight-forward manner, without embellishment and her evidence was not undermined during her cross-examination. I found her to be a credible witness.

iii) The mother’s evidence

[76] The mother is clearly a very intelligent, highly educated woman. Despite her professed limited knowledge of the court process and legal principles, and her alleged lack of computer skills, I find that the mother was, indeed, quite knowledgeable on all these fronts. When she felt her knowledge was lacking, she sought out the assistance of more knowledgeable individuals (lawyers, IT technicians, health professionals, etc.) to ensure that she had all the necessary information to make decisions.

[77] During her testimony, the mother demonstrated an above-average knowledge of all matters related to health and medical issues (her own and the children’s), something that she has undoubtedly learned and researched extensively. During the trial, she was constantly (and intensively) writing notes for her counsel to consider while she was examining or cross-examining witnesses.

[78] I do not accept, as the mother would have me believe, that throughout this legal process there was a significant power imbalance resulting from the fact that the father is an accomplished litigation lawyer (her words not mine) and she is not. Indeed, I find that throughout this entire litigation, it is the mother who held most of the power. This power came from two main factors; her role as the children’s primary caregiver post-separation and the fact that the father was constantly under the scrutiny of the authorities (the police, the court and the CAS) as a result of the mother’s many allegations against him.

[79] There were significant problems with the mother’s evidence in chief. Many of the statements she made were either misleading, significantly embellished to support her narrative, or clearly exaggerated. For instance, when examined by her counsel the mother expressed how great N.M. was doing in school this year. She stated that N.M. had obtained 100% in English and expressed how proud she was of his success. However, a review of N.M.’s report card makes it clear that N.M. did not achieve a 100% mark in English this year. What he did is to achieve 100% of the learning goals set out by his teacher in this class. Indeed, in the commentary section of his report card – which was brought to the court’s attention in cross-examination only – N.M.’s teacher writes: “Les résultats sont satisfaisants quoiqu'irréguliers. Approfondissez davantage votre travail personnel et soyez plus régulier à l'oral. Vous pouvez faire mieux” (The results are satisfactory although irregular. You need to deepen your personal work and be more regular orally. You can do better).

[80] My clear impression of the mother was that she clung tenaciously to her version of the facts and maintained her position on events, never showing any openness to the many other reasonable possibilities suggested to her as to how these events could have occurred differently. This was particularly the case regarding any issues involving the father and his relationship with the children. In particular, the mother was completely unable to acknowledge any positive aspect of the father’s relationship with the children or any involvement on his part throughout the parties’ marriage.

[81] From her perspective, she was the one who did everything: she cooked, cleaned, cared for the children on a day-to-day basis – weekdays and weekends –, arranged all their activities, took them to all their activities, researched and made arrangements for their schools, attended parent-teacher meetings, researched all their medical needs and attended all doctors and dentists’ appointments with them, etc. She was unable to acknowledge any role or participation whatsoever by the father in the children’s lives, despite documentary evidence showing that the father had been actively involved with the children’s daycare and school (as shown in Ms. Morinville’s report) and attended many of their medical appointments and activities during the parties’ marriage.

[82] When confronted with the fact that the father took a six-month parental leave for both N.M. and C.M. when they were born, the mother testified that yes, she was finally able to “convince him to do that”. She then added that she was also on parental leave after N.M. was born, and that whenever the father was caring for N.M. or C.M. during his leaves, he needed the support of his own mother and sister.

[83] The mother’s credibility was significantly undermined under cross-examination. She was frequently evasive, going on very long tangents on issues not related to the questions being asked, and never missing an opportunity to bring forth the father’s alleged violent tendencies. On one occasion during her cross-examination on the issue of a soccer camp for A.M. during the 2022 Christmas holidays, the mother refused to provide the name of the “friend” who had allegedly paid for the camp and kept answering in an evasive manner even after I directed her twice to answer the question. It became quite evident that the mother was not being truthful in her testimony.

[84] Since the parties separated, the mother has made repeated allegations of abuse, lack of supervision and neglect of the children by the father. She has maintained that the father presented a real risk for the children, and most especially for N.M., despite the fact that the CAS and the police did not verify those allegations, and despite the clear conclusions of three child-parent professionals (Dr. Sherman, Ms. Morinville and Ms. Gervais) none of whom expressed any concerns in that regard.

[85] For the first time during this trial, the mother raised her belief that C.M. may have been burnt with a cigarette by his father. To support this, the mother provided a picture of C.M.’s back showing three red dots, as well as another picture that she took holding a ruler besides the three marks to show their real size and the spacing between each mark. Interestingly, C.M.’s injury was reported to the mother by N.M. when the two younger boys returned from their father’s, and the mother admitted that C.M. had never made any mention of having been burnt by a cigarette at his father’s. The mother never contacted the father to discuss this injury.

[86] In order to demonstrate that the father had inappropriately touched N.M. and that he was at risk of sexual abuse in his care, the mother used information surreptitiously obtained from the father’s personal computer immediately after the parties’ separation. More specifically, the mother used that information to support her allegations to the CAS and the police that the father was in possession of, and using, child pornography and adult pornography obtained illegally from the dark web which depicted violent acts. The mother maintained that position throughout this proceeding including during the trial, despite having been told – twice – by the police that the evidence she had gathered did not support her views.

[87] In addition, and quite importantly, the mother’s credibility was significantly impacted by the events that transpired between the parties after they separated, the timing of her many allegations against the father, and the various positions she maintained throughout this trial despite clear and compelling evidence contradicting her and her witnesses’ narrative on many issues. The mother was generally unable to concede facts that did not support her perspective and position in situations where she should have. Here are some examples.

a) Alleged financial abuse by the father and misappropriation of money

[88] The mother maintained that the father had misappropriated approximately $12,000 from her bank account post-separation, including her 2018 tax refund (approximately $6,000). This, she claimed, was part of the father’s ongoing pattern of financial abuse. More specifically, she claimed that she learned after the parties’ separation that the father had accessed her CRA tax account eight times and taken her 2018 tax refund without her consent.

[89] The credible evidence presented by the father is that, as they did for many years before their separation, the mother’s tax refund (which resulted largely from the fact that all benefits and credits available for the children, including childcare expenses paid for by the father, would be claimed by her) was used to pay the father’s income taxes. The parties were still together in 2018 and they filed their tax returns together as a family in 2019. Therefore, when the mother’s tax refund was deposited in the parties’ joint bank account on March 13, 2019 (before the parties’ separation), the father used it to pay his tax liability as he had always done in the past.

[90] The mother failed to produce any corroborating evidence whatsoever, including documentary evidence, supporting her claim that the father had misappropriated funds from her bank accounts, or otherwise financially abused her.

[91] Although the police told the mother at the time she complained that there were no reasonable grounds to believe a theft or fraud had occurred, and despite the father’s compelling explanation in his evidence in chief, the mother maintained her position during her testimony that the father had misappropriated these funds and that she was financially abused.

b) Unsubstantiated allegations by the mother to support her position

[92] It is important to note that on February 18, 2020, when the mother went to the police to file various complaints against the father, she told the police that the father smoked marijuana at least once a week, that he drank four beers every day during their marriage and that she believed he had alcohol, drug and sex addictions. These allegations were not mentioned or pursued in any way during this trial, and it is clear to me that the mother made those allegations solely to support her narrative of having suffered abuse at the hands of the father.

[93] Similarly, during her meeting with the CAS on February 14, 2020, and only after the mother was told that the investigation into N.M.’s disclosure of inappropriate sexual touching by his father was inconclusive and that the CAS would close its file, the mother (for the first time) raised her concerns about alleged inter-generational abuse in the father’s family. CAS records reveal the following:

Natasha's lawyer asked if the decision reflected Natasha's concerns regarding inter generational abuse in Julian's family. I said that these concerns had not been brought to my attention during the investigation. Natasha was asked to speak to these concerns as this is part of the reason Natasha is concerned about the children having access with Julian and his family members. Natasha spoke about:

• Children have told Natasha that their grandmother wants them to sleep in her bed because she misses having a man in her bed

• Julian's father was sexually abused

• "Julian's brother is "unusual" and does not have access with his children

• Julian's sister is also "unusual"

• family dinners include yelling and shouting directed towards the grandmother.

[94] There is no evidence whatsoever produced in this trial that would support any of those allegations (except as it relates to the father’s brother not having access to his children, for reasons unknown to me). These allegations were completely gratuitous, unsubstantiated in any way by the evidence before me, and clearly advanced by the mother for the sole purpose of securing the CAS’s support in restricting the father’s parenting time with the children once it became clear that they intended to close their file.

[95] As mentioned previously, the mother maintained throughout this proceeding and during this trial that she had discovered after the parties’ separation that the father was accessing child pornography and illegal pornographic sites from the dark web, including while the children were in his care. The evidence upon which the mother relied to support her allegations was not admitted as evidence in this trial because it was excluded on the basis that it had been surreptitiously obtained by her after the parties’ separation. Nonetheless, that evidence was brought to the attention of the police by the mother at the time she filed her various complaints against the father. On at least two occasions, the mother was told by the police that the evidence provided came from legitimate pornography sites and none of the evidence provided by her met the threshold of child pornography.

c) Allegations that the father illegally installed tracking applications on the mother’s and Dr. Cappon’s electronic devices to stalk them and wrongfully access their personal information

[96] The mother testified that very shortly after the parties’ separation, she became aware that the father was monitoring her whereabouts with the use of the “Track My iPhone” application installed by him on her cellphone. She also claimed that the father had installed spyware on the home computers, the children’s iPads and on her father’s computer with which he could spy on her and access her and Dr. Cappon’s personal information without their consent.

[97] On or about July 19, 2019, they contacted Mr. Nevin Porwal, an IT Systems and Security Specialist, to have a look at their electronic devices to identify the various applications installed on them and provide particulars as to their functionality. Mr. Porwal’s services had been retained by Dr. Cappon in 2016 to provide him with IT support from time to time, including for the management of his medical practice’s database and patients’ confidential information. After inspecting the mother’s and Dr. Cappon’s computers and electronic devices, Mr. Porwal identified various applications including a VPN (Tunnelbear), Name Changer, iTeleport, and more. He also confirmed that the application “Track my iPhone” was active on the mother’s cell phone. Mr. Porwal was asked to have all these applications removed.

[98] The mother and Dr. Cappon maintained during this trial that the iTeleport application found on their computers had been installed by the father and used by him post-separation to spy on them and access their personal information without their consent. After the parties’ separation, they went to the police to report this alleged illegal use of their computers. When interviewed by the police, Dr. Cappon stated that he had found out the father “had installed the same spyware on his computer as on (the mother’s) computer” and that maybe there were other tracking devices, similar to those he installed on the mother’s computer, that he had installed on his as well. He told the police that “This came as a huge surprise because he'd never had access to my computer without my being present.”

[99] During their testimony in this trial, Dr. Cappon and his wife stated that because of the father’s illegal access to Dr. Cappon’s computer, they were forced to ensure that he had not illegally accessed Dr. Cappon’s patients’ confidential data. In her testimony in chief (by affidavit), Ms. Lefebvre Cappon stated “The computer specialist discovered, to our shock, that Julian had. The specialist, Mr. Nevin Porwal, who is prepared to testify in court to this effect, found that Julian had installed the identical iTeleport system on Paul's computer that he had also installed on Natasha's machines.” Dr. Cappon added that he had to notify all his patients about the possible breach when he found out that the father had installed spyware on his computer.

[100] During his testimony in chief, the father explained that Dr. Cappon frequently asked for his assistance in all matters having to do with technology. Being very proficient in this area, the father had eventually installed on his computer the iTeleport software which allowed him to access Dr. Cappon’s computer remotely to provide him with assistance and fix issues he might be experiencing even if he could not personally attend his home. The father presented various emails between him and Dr. Cappon exchanged over the years (before the parties’ separation) which confirm, unequivocally, that the iTeleport software was installed on Dr. Cappon’s computer in 2017 with his full knowledge and consent, and that it was subsequently used on several occasions by the father at Dr. Cappon’s request when he needed something looked at or fixed on his computer.

[101] The father also explained why and how he had installed software and applications on the family’s various electronics devices (such as the “Find my iPhone” application) for the purpose of enhancing the security on those devices, limiting the children’s access to the internet, making all family pictures available from all devices, downloading movies and music, editing videos and so on. He was able to give a very detailed explanation of the various functionalities of each application, and the very specific reason he had installed them on various electronic devices, and how he had used them during the parties’ marriage.

[102] In the Summer of 2020, the mother was advised by the police that there was insufficient evidence to conclude that the father was using the “Track my iPhone” application to track her. She was also told that there was insufficient evidence to believe that any criminal offences were committed by the father in relation to remotely accessing her or Dr. Cappon’s computers since the father had previously had lawful in-person access to the mother’s electronic devices and Dr. Cappon’s computer, and it was quite possible that the remote access programs had been installed at that time. Further, even if the police were to find that they had enough evidence to support a conclusion that the father had illegally installed these programs, there was no evidence that he did in fact remotely access her devices or Dr. Cappon’s computer.

[103] Despite all this, the mother, Dr. Cappon and his wife continued to maintain throughout this trial that the father had illegally installed these applications and had used them to track the mother and access her and Dr. Cappon’s personal information without authorization. To support their position, they retained Mr. Porwal to provide an expert opinion. A look at the mother’s instructions to Mr. Porwal, which were included in his expert report as required by the Family Law Rules, O.Reg. 114/99 as am. (“the Rules”), is quite revealing as to the objectives the mother was pursuing when she retained him. She wrote:

8. Please list all the apps that are unusual/bizarre to have and why.

9. Please describe in layman's terms their functionality and what [the father] was likely using them for.

• E.g. Are they being used for the dark web?

• Is it a sufficient roster of apps for him to engage in illegal activity on the dark web? If not, what else would he need?

10. What explanations (either credible or not) might he give for why he downloaded and/or used these apps? (e.g. could it just have been to download regular movies not out on release yet? could it be for his music/DJ hobby?) How should those explanations be refuted and explained that the apps would be for nefarious activities?” (my emphasis)

[104] Mr. Porwal was called to testify at trial. I found he was qualified to provide expert testimony in relation to cybersecurity and computer technology matters. I found that he was a credible witness. During his cross-examination, counsel for the father went through all the applications Mr. Porwal had found on the various electronic devices he inspected and asked him whether it was possible that each one of them could have been installed by the father for the very purpose that he claimed during his testimony in chief. Mr. Porwal readily agreed that the various applications were widely installed on home computers and devices and used in the manner suggested by counsel. Indeed, Mr. Porwal readily admitted that he had no evidence to support the mother’s and Dr. Cappon’s allegations that the father had ever used any of these applications for the “nefarious purposes” alleged by them.

[105] It is ironic that the mother would so vehemently try to find fault on the part of the father for having illegally accessed her electronic devices and her father’s computer given the undisputed evidence confirming that she, herself, has surreptitiously accessed the father’s computer after the parties’ separation for the purpose of gathering evidence to be used against him in this litigation.

iv) The mother’s witnesses

[106] The mother’s main witnesses in this trial were her father Dr. Cappon, her mother Ms. Lefebvre Cappon, and her brother Olivier, as well as a few close family friends and relatives.

[107] Having carefully considered all the evidence, my impression is that their perspectives on the situation were very much coloured by the mother’s own narrative and characterization of events. Like the mother, they presented as unable to see both sides of situations that unfolded or to appreciate that the mother’s reading of situations may have been inaccurate.

[108] Except for Dr. Cappon, all other witnesses testified in chief by affidavit and were cross-examined and re-examined viva voce. All members of the mother’s immediate family (her parents and brother) maintained during their cross-examination that they had not conferred together to prepare their testimony for this trial, and that they had had no discussion whatsoever with one another about their respective testimony.

[109] Not only would it be highly unusual, in my view, for them to not have discussed their respective testimony in preparation for this trial, but it was obvious after reading Ms. Lefebvre Cappon’s and Olivier’s affidavits, and hearing the mother’s and Dr. Cappon’s testimony, that they had.

[110] The maternal family members’ joint “recollection” of the many events that transpired between the mother and the father over several years (many of which they were not personally privy to) were not only identical, but they often used the same words to describe them. For instance, all members of the maternal family remembered the exact words allegedly pronounced by the father to the mother during the events which led to the father’s being charged with uttering threats, which events would have taken place back in 2014 (“tu peux crever dans ta merde”).

[111] Both Dr. Cappon and his wife testified at trial that they had learned after the parties’ separation that the father “had told the boys about the separation, demeaning their mother and extolling “mon grand amour à Montreal” (“my great love in Montreal”). They also both knew that the father had presumably given the children “clothes which he said were gifts from this new "amour". They also both repeated the exact same story, using the same words, about the events surrounding N.M.’ birth (back in 2011) and how the father had allegedly refused to give his chair to Ms. Lefebvre Cappon at the hospital. Indeed, there were a handful of events involving some form of conflict between the father and the maternal family members – many of them having occurred many years ago – that all four family members testified about with perfect and identical recollection.

[112] Like the mother, the members of the maternal family were completely unable to say one positive word about the father, or to acknowledge any meaningful or positive involvement on his part in the lives of the children during the parties’ relationship or thereafter. They readily adopted the mother’s narrative in relation to events which they were not privy to at the time they occurred, and presented it as their own evidence. While it is quite understandable that the mother’s family members would side by her and support her through this litigation, given their very strained relationship with the father, their complete inability to see both sides of the coin or to acknowledge some responsibility on the part of the mother for how things unfolded gave me significant pause.

[113] For instance, Dr. Cappon and his wife both maintained quite strongly throughout their evidence that the father controlled all the parties’ finances and had financially abused the mother throughout the marriage. They both testified that they had only learned about this state of affairs after the parties’ separation. Although at trial they completely adopted the mother’s narrative on this, they provided no independent evidence supporting their joint belief in that regard; their only source of information was what their daughter had reported to them after the fact, and they believed her wholeheartedly. Despite this alleged financial abuse, while the parties were still together Dr. Cappon trusted the father enough to allow him to access his computer remotely in his absence to fix technical problems and, as late as 2016, to ask him to access his bank account to deal with a financial issue while the Cappon were vacationing abroad.

[114] The uncontested evidence before me is that Dr. Cappon and his wife lent the parties (both parties) $100,000 dollars to help them buy their first house. There was no fixed repayment terms but the loan bore interest at the rate of 1% per year. After five years, the parties had not made one single payment towards the loan or towards accrued interest. As a result, Dr. Cappon raised this with the parties at some point in 2017, following which the father attended the Cappon’s home to provide them with a $3,000 cheque. Remarkably, during their testimony both Dr. Cappon and his wife laid the entire blame for the parties’ failure to begin repaying this loan at the feet of the father. Ms. Lefebvre Cappon’s statement in that regard (which was mirrored by Dr. Cappon in his own testimony) clearly demonstrates my point. She stated: “After almost five years, no interest payment (1% / year) or principal were made by Julian who controlled finances to the exclusion of Natasha.” (my emphasis)

[115] Also noteworthy is the fact that only two weeks before this trial began, Dr. Cappon and his wife instructed their corporate counsel to serve notice on the father of his breach under this loan agreement and requiring a payment of $50,000 (his 50% share of this loan) on or before January 31, 2023. In cross-examination, Dr. Cappon confirmed that no such notice had been served on the mother.

[116] Just like the mother’s evidence, Dr. Cappon’s and Ms. Lefebvre Cappon’s evidence contained many exaggerations meant to show the father in the worst possible light. For example, when describing the first few interactions between the children and the father’s new partner, Ms. Lefebvre Cappon qualified those encounters as “frightening” for the children. In her affidavit, she also stated the following:

• at para. 25: “In 2017, we went to see the 2017 non-animated movie "Beauty and the Beast" which we later found out contained some violent and frightening scenes and therefore was not recommended for children under 8 years old. During the movie, I commented to Julian that some scenes were scary for the younger children who hid their faces during some parts of the movie. Julian roughly pushed my hand aside when I tried to provide reassurance to the children and shield them from the more terrifying images with the comment: "Qu'est-ce que vous faites? They have to get used to that".”

• at para. 8: “From the beginning of the marriage, Julian made most, if not all the dinners, including for the few dinner invitations at their apartment. It soon became apparent from the food that he cooked that he wanted to cook so that he could control the choice of food, how it was prepared and the time that he would eat. His were very restrictive, using high fat and salt, few vegetables and no fruit.”

[117] Dr. Cappon and his wife were so completely aligned with the mother that their evidence in this trial was, sadly, not credible. Much of their testimony was based on the selective misinformation provided to them by the mother which they readily adopted as their own. Otherwise, their recollection of events was so completely tainted by their strong animosity towards the father that it was hard to put any reliance on it.

v) Conclusions on credibility

[118] Based on all the above, I found the father to be a much more reliable and credible witness than the mother. The father’s evidence was corroborated by significant documentary evidence and his testimony as well as that of his witnesses were not undermined during cross-examination. The mother’s evidence and that of her immediate family members, on the other hand, was significantly undermined in cross-examination and generally lacked credibility. Accordingly, where there were discrepancies between their evidence, I have generally favoured the father’s evidence over that of the mother.

3- Allegations of family violence

[119] The mother has made several allegations of family violence in this case, perpetrated by the father against her. Such abuse included ongoing verbal abuse as well as a death threat, one incident of physical abuse and one incident of sexual abuse.

i) Family violence – legal framework

[120] I am very aware of the importance to take into consideration the presence of family violence in any family matter dealing with the parenting of a child (Barendregt v. Grebliunas, 2022 SCC 22). The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interest analysis (see s. 16(3)(j) and (4)). Family violence is broadly defined in s. 2(1) of the Divorce Act as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person. In the case of a child, family violence includes the direct or indirect exposure to such conduct.

[121] Section 2(1) provides a non-exhaustive list of the many forms of family violence which include physical abuse, forced confinement, sexual abuse, threats to kill or to harm, harassment including stalking, psychological abuse and financial abuse. Other types of conduct not specifically mentioned in s. 2(1) of the Divorce Act have been recognized as a form of family violence. For instance, the concept of a pattern of coercive and controlling behaviour has been found to encompass the following types of behaviours:

1. Making numerous unsubstantiated allegations against the other party;

2. Unilaterally changing court-ordered parenting time terms without justification; and,

3. Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent (M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 187).

[122] Assessing the credibility of family violence allegations presents significant challenges. Justice Chappel described those challenges in M.A.B. v. M.G.C., 2022 ONSC 7207, at paras. 179 and 180:

179 The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M.,2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., at para. 167, per Zisman J.; W.A.C. v. C.V.F.,2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

180 Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the achievement of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair,2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella; A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29).

ii) Family violence – application to this case

[123] I accept that the parties’ relationship was very difficult from early on in their marriage. Apart from their shared and strong desire to have children, the parties disagreed on much of everything else; the type of wedding they should have, whether the mother should take the father’s last name after they were married, the type of food they ate, the family’s daily routine and meal times, the type of activities they should do with their children, the extent, nature and frequency of the children’s extracurricular activities, the extent to which their extended family members should be involved in their day-to-day lives and in the way they raised their children, their career plans, family values and traditions, sexuality, religious beliefs, the management of their financial affairs, and so on.

[124] It is clear that the parties’ marriage was struggling from at least 2014, and that there was significant tension in their relationship. Both parties were estranged from the other’s extended family, the parties were frequently at odds, engaged in conflict and to a large extent living separate lives.

[125] I accept that in that context, there were often harsh words exchanged between them. I even accept, based on the evidence provided by the mother’s brother and her friend Ms. Bakmazian, that the father has often spoken to the mother in a sarcastic and condescending manner, including in front of her family members. There is sufficient evidence before me, including evidence from the children themselves, to support the conclusion that the father has raised his voice and yelled when engaged in conflict with the mother or his family members (before and after the parties’ separation), and in the presence of the children. I also accept that while the mother would not openly engage in conflict with the father’s family members, the father was much more vocal when irritated by the maternal grandparents. Both Dr. Cappon and his wife provided examples of events during which they considered the father’s behaviour towards them to have been inappropriate, hostile or downright rude (although not to the extent that they wanted me to believe).

[126] However, I do not accept that the father has been verbally abusive towards the mother for years, as she and her parents allege, by constantly demeaning her, calling her derogatory names and using fowl language when speaking to her. The evidence as a whole simply does not support such a conclusion. Furthermore, hundreds of pages of email exchanges between the parents were adduced in evidence during this trial, including a significant number of emails exchanged before their separation and the commencement of these proceedings. Neither the mother nor any of her witnesses were able to bring to my attention one single email in which the father would have used such language towards the mother. Indeed, the content of these emails show the complete opposite.

[127] I also do not believe the mother’s evidence in relation to alleged family violence in the form of physical, sexual or financial abuse. As indicated at length above, I found the mother’s evidence to completely lack credibility. Moreover, the timing of her allegations in relation to two specific historical events of family violence, when considered in relation to the history of this case, the mother’s ongoing efforts to restrict the father’s role in the children’s lives post-separation, and her ongoing (and failed) attempts to have the father charged with various criminal offenses (other than the three for which he was charged), is seriously troubling and gives rise to important concerns about the veracity of her allegations.

[128] It is telling, in my view, that the mother’s complaint to the police in relation to alleged historical events of physical and sexual violence were made within days of the mother being served with the father’s court application in this family matter, and immediately after she was advised by the CAS that the investigation was inconclusive, and that the file would be closed. Indeed, the evidence revealed that the closure meeting between the CAS and the mother took place on February 18, 2020, at 9:30 a.m., and that the mother attended the police station that same day, in the afternoon, to report (for the first time) physical and sexual abuse she allegedly suffered at the hands of the father in 2014, 2016 and on the date of the parties’ separation (March 2019).

[129] The charge of uttering death threats relates to the following alleged events. According to the mother, at some point in early 2014, and while she was pregnant with A.M., the parties had a dispute in their bedroom and the mother, who was not feeling well, decided to go sleep in the spare bedroom. As she settled into bed, the father allegedly came storming in the bedroom, door swinging, turned the lights on and continued to yell at her, calling her “putain”, “saloppe” (“slut”, “bitch”) etc. When the mother ignored him and asked him to leave her alone, the father allegedly became angrier and told her “je vais te tuer!, je vais te tuer!!” (“I will kill you!”). According to the mother, he then came onto the bed, straddling her, coming close to her face and ultimately hit the pillow besides her face before leaving the bedroom.

[130] The father testified about this alleged altercation. He could not recall any such dispute or that he ever made these threats to the mother. He vehemently denied ever making any verbal threats to harm or kill the mother. He added that at the time of the alleged events, N.M. would have been a baby who slept eight feet away from their bedroom. As a result, he said, the parties would have been extra cautious if they ever had a dispute about N.M. not hearing them argue.

[131] The mother further alleged that, on March 16, 2016, while she was pregnant with C.M., she woke up at 4 or 5 a.m. feeling really unwell. She explained that when she woke the father up to ask that he either call an ambulance or Dr. Cappon for assistance, the father rolled on top of her in the bed, held her arms down, and told her “je vais pas appeller l’ambulance ou ton stupide papa” (“I will not call an ambulance or your stupid father”), “tu peux mourrir dans ta marde” (“you can die in your shit”). The mother then asserts that when she was finally able to call her father herself, he recommended that she attend the hospital right away. When Dr. Cappon arrived, the mother stated that she pled with him to not let the father ride in the ambulance with her, and to not leave her alone in the hospital with him. She stated that she did not feel safe with the father and testified that her brother agreed to come to the hospital to be present with her. The mother could not recall whether the father had indeed accompanied her to the hospital in the ambulance. She confirmed that the father was present at the hospital but that he had left quickly after she was admitted.

[132] Dr. Cappon also testified about these events at trial. At the time the mother’s allegations were investigated by the police in September 2020, he told the police that the mother had begged him many times to not leave her alone with the father. He stated that he called the ambulance and that the mother was taken to the hospital. He stated that he followed the ambulance in his car and did not quite remember whether the father followed in his own car, but that he was certain that the father had not come with him to the hospital.

[133] During his cross-examination, Dr. Cappon was adamant that the father was not in the ambulance with the mother. He was also unable to explain who had remained home to care for the children as he, the mother and the father allegedly all went to the hospital. When it was suggested to him in cross-examination that he had remained behind to take care of the children and drove them to school while the mother and the father were at the hospital, he denied this, insisting that he had followed the ambulance to the hospital. He also maintained that he had not seen the father at the hospital.

[134] Dr. Cappon’s statement that he followed the ambulance to the hospital cannot be reconciled with his earlier testimony to the effect that when he arrived at the hospital, the mother had already been admitted and was receiving intravenous therapy to be re-hydrated. It also cannot be reconciled with the mother’s own testimony during which she confirmed that the father was, indeed, present at the hospital, although she claimed that he would have left quickly after she was admitted.

[135] The father provided a very different account of these events. He stated that when the mother woke him up telling him that she was not feeling well and wanting to go to the hospital, he first responded that the kids would be going to school and daycare within a few hours and asked whether she could wait until then to go to the hospital. When the mother insisted that she could not, he suggested that she call her father to ask him to come to the house and check up on her. After Dr. Cappon arrived at the home and asked some questions to the mother, he became concerned and recommended that the mother go to the hospital right away. The father stated that an ambulance was called and that he accompanied the mother in the ambulance to the hospital, while Dr. Cappon stayed home to care for the children. After Dr. Cappon drove the children to their school and daycare, he came to the hospital. The mother was diagnosed with dehydration (this was confirmed by Dr. Cappon), placed on intravenous therapy and given drugs for her nausea. The parties and Dr. Cappon left the hospital a few hours later.

[136] To support his version of these events, the father produced an email that he sent to the mother’s work colleagues at 7:32 a.m. that very morning, advising them that the mother would not be at work that day. He stated:

“Hello Signi and Julie,

I am Natasha's husband and we're at the high risk pregnancy clinic at the general hospital to get her checked out for what we hope is nothing too serious.

Natasha is not well and will not be able to work today. She asked me to e-mail you both and warn that she would not be able to get back to Mike Brownhill from ARI to answer his questions.

She doesn't have her blackberry but you can reach her through me at this address or by phone at 613 808-1157.

Thanks”

[137] It seems highly unlikely to me that the mother, who according to her at that time was very afraid of the father and did not want to be left alone with him, would nonetheless share her work information with him, give him her work colleagues’ email addresses and trust upon him the responsibility of notifying her colleagues that she would not be at work that day. This email also clearly contradicts the mother’s assertion that the father was only present at the hospital for a brief period, and quickly left after she was admitted.

[138] Finally, and more importantly, this email clearly confirms that the father was, indeed, at the hospital with the mother, contrary to Dr. Cappon’s testimony. Therefore, it leads to the conclusion that Dr. Cappon did stay at home to care for the children until he was able to join the parties at the hospital after dropping the children at school (he specifically confirmed in his testimony that the children had not been left in the care of the maternal grandmother). His testimony to the effect that the mother was already on intravenous therapy when he arrived at the hospital is wholly consistent with the father’s version of events.

[139] All the above raises serious concerns about the credibility of the mother’s allegations about the events that transpired that night, and her allegations that the father would have restrained her in the bed and refused to allow her to go to the hospital or to call her father for assistance. These allegations are completely inconsistent with the fact that Dr. Cappon did attend the parties’ home in the middle of the night, that the mother was transported to the hospital, that Dr. Cappon stayed home to care of the children, and that the father was present at the hospital throughout.

[140] I find the mother’s and Dr. Cappon’s version of the events not credible, and I accept the father’s version of the events that transpired that day.

[141] In his affidavit filed in support of his sister in this trial, Olivier Cappon states that in May 2016, while he lived in Toronto, he was informed by his sister over the phone that there had been several recent episodes of conflict at the parties’ household, which had resulted in emotional and verbal abuse by the father. He added that there had been some incidents of physical abuse of the mother, who was nine months pregnant at the time. The mother would have disclosed to him that she was fearful for the unborn child's safety as well as her own, stating over the phone that she “did not trust Julian with her health or that of the baby”, because of the recent episodes of physical abuse.

[142] This testimony is very difficult to reconcile with the uncontested evidence before me that C.M. was left in his father’s primary care for many weeks while the parties were completing important renovations in their home, shortly after his birth, and the equally unchallenged evidence that the father took the second half of the parental leave with him, during which he stayed home full-time with C.M. for a period of six months while the mother was at work full-time.

[143] While I accept that the mother did not trust the father by that point, as the parties’ relationship had been very conflictual for years, her lack of trust did not extend to his ability to care for the children on a day-to-day basis.

[144] Finally, the mother alleges that the father sexually assaulted her on the day that he told her about his affair with Geraldine and advised that he wanted to separate. According to the mother, when that conversation took place, the parties were sitting on the couch on the main floor of their home. The father would have placed his hand on her knee and thighs, then tried to kiss her and take off her clothes. When she resisted, he would have grabbed her by her wrists and pulled her up the stairs despite her objections and urges to stop. Once in the upstairs bedroom, the father would have pushed her on the bed, pulled her hair, turned her over so that she was facing down on the bed, penetrated her, then turned her around and penetrated her again. She testified that she was unable to remember anything else thereafter.

[145] The father’s version of what took place that day is quite different. He testified that once he admitted to the affair and told the mother he wanted to separate, the mother was sad and disappointed, and proposed that they give it another try. When the father maintained his firm position, the mother became angry and told him that he had ruined her life, that it was too late for her to start over with someone else and that she was no longer desirable. The father then tried to console her, which led to the parties kissing and then going upstairs where they had sex. The father testified that later that day, the children returned from school, had dinner and the parties put the children to bed together after which they went to bed themselves.

[146] Aside from the many negative findings made to this point about the mother’s credibility, it is difficult for me to contemplate how the father would have been able to forcibly drag the mother from the main floor to the upstairs bedroom and assaulted her in the violent manner described by the mother, given the parties’ respective physical build (the mother described herself as very athletic whereas the father is a self-admitted intellectual who was never engaged in organized sports).

[147] Secondly, the mother’s depiction of what would have been a quite horrible and violent sexual assault is difficult to reconcile with the uncontested evidence that the parties jointly cared for the children that night, put them to sleep together, and both slept in the matrimonial home. Furthermore, the mother’s version of events is difficult to reconcile with the father’s evidence – which the mother also left unaddressed and unchallenged – that during the following weekend which he spent with Geraldine in Montreal, the parties were in constant communication by phone and text messages arguing over the father’s decision to separate.

[148] Finally, it is important to add that at the beginning of these proceedings, the mother maintained the position that the parties had separated on March 21, 2019, and not on March 14, 2019, as alleged by the father. To support her position in that regard, the mother’s counsel wrote in a letter dated May 10, 2019: “Can you please advise as to the basis for your asserted date of separation of March 14, 2019? I understand from my client that the parties were together on March 14, 2019 and planned to engage in activities as a family that weekend. The parties continued to reside as a family and were intimate the following week.” This is certainly difficult to reconcile with the mother’s allegation that what took place that week was a violent sexual assault.

[149] When confronted with that letter during her cross-examination, the mother explained that her lawyer at the time had recommended that she not lay charges for sexual assault because it would impede her ability to get a “quick divorce”. She also added that she had never seen this letter before and certainly had not approved its content before it was sent by her lawyer.

[150] Upon carefully considering all of the evidence, the mother’s version of what took place that day is simply not credible, and I accept the father’s version of the events.

4- Allegations of child and sexual abuse

[151] While it is clear to me that the father, as a result of his past behaviour, poor relationship with the mother and estrangement from the maternal grandparents, has contributed to – or at least facilitated – N.M.’ estrangement from him, I am unable to accept as true N.M.’ allegations of inappropriate sexual touching by his father. In my view, N.M.’ disclosure in that regard was significantly influenced by the mother’s involvement of the children – and especially N.M. – in the parental conflict and her negative messaging about the father to the children immediately after the parties separated.

[152] I accept based on all the evidence before me that N.M. was more closely bonded with his mother than with his father before the parties’ separation. Although still a young child at eight years of age, N.M. was the oldest and he was undoubtedly more aware of his parents’ unhappiness as a couple, and of the ongoing feud between his father and his maternal grandparents (with whom he shared a very close bond) than the two younger children.

[153] After his parents separated, N.M. remained in his mother’s primary care – as did his brothers – and was significantly exposed to his mother’s and his maternal grandparents’ open scorn and hostility towards his father. Given the close bond he shared with them, it is not surprising that N.M.’s feelings towards his father easily aligned with his mother’s and maternal grandparents’.

[154] The mother made sure that N.M. was well aware of his father’s affair with Geraldine and gave him the clear message that the father was leaving them for her. The mother’s resistance to the children having immediate, meaningful and expanded parenting time with their father played a very important role in her ability to negatively influence N.M. against his father.

[155] I find that the mother actively engaged in a course of action aimed at damaging the children’s relationship with their father, from very early on after the parties’ separated, and without regard to the impact this would have on their well-being. N.M., especially, was used by the mother to achieve that goal. On one of the very first visits between the children and their father after the parties’ separation, N.M. brought him a bag filled of family pictures and told him: “ça vient de maman, pour que tu te souviennes de l’époque ou tu avais une famille” (“this is from mom, to remind you of the time you had a family”).

[156] As I previously pointed out, all the blame for N.M.’ estrangement from his father cannot be laid at the feet of the mother. The ground had long been laid for N.M.’ predisposition to side by his mother during the parties’ marriage. During his testimony, the father showed great insight into his own failures as they related to his strained relationship with N.M. He explained that throughout personal counselling, attachment therapy and reunification counselling, he gained much needed insight into how his own actions had contributed to creating distance between him and N.M., and had facilitated the mother’s efforts to damage their already strained relationship.

[157] The father acknowledged that he had broken N.M.’ heart by leaving the family home. While the father’s decision to keep his distance during the weeks that followed the parties’ separation was motivated by his desire to give the mother some space and to let things calm down, the father now realizes that from N.M.’ perspective, his father had simply abandoned him. Unfortunately, this message was actively reinforced by the mother.

[158] The father also acknowledged that he had leaned on N.M. too hard to try to contain his younger brothers’ behaviour when they were living with him in their paternal grandmother’s home during the year following the parties’ separation. He acknowledged that it was unfair to ask this of N.M., who was also struggling with his own emotional issues, and that he had been too hard on him as the eldest. The father also realized that he had deprived N.M. of things that he was deprived of in his youth (such as not giving him too much praise), in an unconscious attempt to toughen him up. In other words, the father accepted a large part of the responsibility for his estranged relationship with N.M. post-separation.

[159] Nonetheless, despite her professed desire to support reunification between N.M. and his father, the mother has instead deployed significant efforts to undermine and sabotage their relationship. After the mother found evidence of the father’s use of pornography on his computer in the days following their separation, she shared her concerns about the children’s potential exposure to the images and alleged child pornography to professionals and the police. I find that her concerns were widely and openly shared with many around her, including with the maternal grandparents, within the family home and that N.M., in particular, was well aware of this. He may have even been openly questioned about his potential exposure to child pornography on his father’s computer, but I cannot say for sure based on the evidence before me.

[160] It is in that context that the Children’s Aid Society became involved with this family in the Fall of 2019, following an anonymous person’s report of concerns based on information received from the mother. It is in the context of his interviews with child protection workers that N.M. first made allegations of inappropriate sexual touching by his father.

[161] Given the nature of N.M.’ disclosure, the Sexual Assault and Child Abuse (SACA) Unit of the Ottawa Police was consulted and a police investigation ensued. During the course of this joint investigation, the police and the Society conducted many interviews of the mother and each of the children.

[162] The following information found in the Society’s records are noteworthy in relation to N.M.’ allegations of inappropriate sexual touching, and the mother’s concerns around the father’s potential for child abuse.

[163] During her initial interview with a Society worker on November 14, 2019, the mother shared her concerns that the children might have been exposed to pornography, including child pornography, in the care of their father. She revealed that she had uncovered a large quantity of pornographic material, and that it involved “rape, incest and minors having sex with adults”. She spoke about the abuse she felt she had been subjected to at the hands of the father. At the end of the interview, she indicated to the worker that she wanted to get sole custody of the children but that she understood this was not easily obtained.

[164] During her interview with another Society worker on November 26, 2019, the mother advised that she had found child pornography on the father’s device and that she was worried about its content and impact on her children. She told the worker that “none of her children had reported concern”. She disclosed that the father “had raped her”. When asked what her hope was, she said that she hoped that the children would have supervised visits with their father, and that they would not be exposed to pornographic material.

[165] When interviewed on that same day and asked to tell the worker about his dad, N.M. said: “he puts me in front of the TV for 2 hours while he is on his phone doing stuff, he screams a lot, he gets angry pretty easily, the has fights with his mom/ they argue about stuff, he takes long naps”. When asked if there were any positive things he could tell the worker about his dad, he answered that sometimes his father wants to go play basketball and tennis, that he makes dinner at his house and that he likes to play sports with him. When asked if there was anything else important for the worker to know, the worker reported N.M.’ response as follows:

“no not really sometime father touches his balls - when he is getting his pj's on, I think father thinks it is funny but it is not. when tells father to stop he stops, happened 2 times, last time was last April”.

[166] When interviewed on that day A.M. told the worker “I am not talking about my mom, as she told me I did not have to but will talk about father”. The worker’s notes about her interview with A.M. is as follows:

I asked Adrian, What can you tell me about your dad? Adrian said, He sometimes grabs me in my arm or leg hard. Adrian got down on the floor and showed me with his leg how his dad grabs him. I asked, Why does he do that? Adrian said, I don't know. It's not nice. Where does he take you? Around. I asked, Like in a circle? Yes. Does he think he is playing. Yes but it hurts. What else can you tell me about your dad? He does a lot of things not nice, like hitting. Tell me about him hitting you. What? Where does he hit you. Everywhere. How come he hits you? I don't know, maybe because it's not nice. What else can you tell me about your dad? He's not nice. That's all I know. What do you guys do when you visit your dad? Bad stuff. What do you mean? Like everyone hits and it's really bad. What else do you do when you visit? Not a lot of good things. He doesn't play with me.

[167] N.M. and A.M. both reported concerns about their father yelling and screaming, being angry, and being on his phone too much.

[168] Given his age (he was only three years old at the time), C.M. was not interviewed.

[169] A review of the Society’s records reveals that as the investigation progressed, the mother’s allegations in relation to the risks presented by the father grew, expanded and included increasingly disturbing behaviors on the part of the children. By January 2020, the mother was reporting increasingly concerning sexualized behaviours by the children that she found "abnormal". For the first time, she reported “lewd gestures from the youngest two children”, but particularly from A.M. dating back to May 2019. Yet, by that time the children had had no contact with their father for four months.

[170] On January 2, 2020, N.M. was interviewed by Detective Gervais at the police station. He was accompanied there by his mother, his two brothers and Dr. Cappon. The following statements made by N.M. at the time are noteworthy:

• N.M. does not know why he is at police station today. He does not like talking so this was not his idea.

• When asked about some “not fun” things his dad does, he responded “I know there are some but I forgot some of them". Then N.M. thought about it and said the only thing he can remember is that his dad does not do a lot with them and just puts them in front of the TV while he does the cooking. Then he added “I know some stuff but I can't remember”.

• N.M. said he likes to spend time with each parent.

• N.M. said that he sometimes steals his dad's iPad to play video games. When his dad went to the store with his brother, N.M. made his move. He said that he saw his dad was watching something called “naked girls”, he said his friend also knows about this. N.M. said he knew his dad's password (he started to say the numbers in the password). N.M. said that he clicked on the link and there was inappropriate things. N.M. said that he saw girls sucking boys’ penises. He said this was the first time he saw this and this was the only time he saw this.

• N.M. said there is something else, and I already know this. N.M. talked about his dad grabbing Adrian roughly on his arm. N.M. also talked about his dad playing with his penis. N.M. said this happened at his grandma's house in his aunt's bedroom. N.M. said that he was putting on his pj's after having a bath. N.M. said that he had a towel around himself and his dad took the towel and started rubbing his penis. N.M. said he did not know why his dad was doing this- did not know if it was to clean him or to be funny. When asked how this made him feel, N.M. said it made him feel embarrassed.

• When asked what his dad said when he was doing this, N.M. said his dad said nothing. N.M. said he told his dad to stop and his dad did. N.M. said he told his dad to stop because he was embarrassed and because he could do this himself if he wanted.

• N.M. clarified that his dad was bathing the boys together in the tub. He said his dad did this in the usual way and he described appropriate bathing.

[171] When he was cross-examined the father acknowledged that it was possible that N.M. would have had access to one of his devices to access pornography, but that it was highly improbable since all his devices were password protected. Although N.M. had access to his iPad, the father explained that he would have been extremely prudent in not leaving pornography on his iPad. Nonetheless, he acknowledged that it was possible that N.M. might have had access to pornography on his iPad.

[172] Ultimately, the police investigation regarding the children's exposure to pornographic material was found to be inconclusive as the father chose not to participate in the investigation. The police also concluded that there were no clear disclosures from the children regarding exposure to pornographic material, nor were there any clear disclosures from the children about being exposed to sexually inappropriate behavior or actions from their caregivers.

[173] In its closing letter to the parents dated March 9, 2020, the CAS stated:

In this case, following completion of the Society's investigation, the allegations were determined to be inconclusive. This decision is due in combination to Mr. Malone's decision not to participate in the investigation, and N.M.' disclosure, despite being of serious nature, was determined to be not credible.

[174] Throughout its investigation, the Society received no clear disclosure of the children being exposed to pornography. The Society did not verify any allegations of physical discipline nor verbal abuse by the father towards the children, and it concluded that there were no child welfare reasons that would warrant it taking a position on parenting.

[175] As stated earlier, it was only when the Society met with the mother on February 18, 2020 to advise that their joint investigation with the police was inconclusive and that their file would be closed, that she made the following allegations for the first time:

• That the children have told her that their paternal grandmother wants them to sleep in her bed because she misses having a man in her bed;

• That the paternal grandfather was sexually abused;

• That the father’s brother is "unusual" and does not have access with his children; and,

• That the father’s sister is also "unusual", and that family dinners include yelling and shouting directed towards the grandmother.

[176] The mother then proceeded to ask if these concerns would change the Society’s decision to close the file. When she was told that it would not, she proceeded to go to the police to make her complaint against the father.

[177] Based on all this evidence, I come to the following conclusions. It is more likely than not that N.M. was exposed to pornography on one occasion while in the care of his father. Such exposure likely occurred as a result of N.M. taking his father’s iPad to play video games without asking for permission, or without his father’s knowledge, precluding the father from ensuring that there was no inappropriate content on his device prior to N.M.’ use. Alternatively, the father inadvertently left explicit pornographic content on his iPad which N.M. saw. Regardless, I have no concerns about the father’ ability to ensure that this does not occur in the future. Indeed, during his testimony the father stated that to deal with this issue (and the children’s complaints about his spending too much time on his iPad when they are in his care), he disposed of his iPad altogether.

[178] Based on all the evidence before me, including the significant CAS and police records adduced in evidence during this trial as well as Ms. Morinville’s report of her interviews with the children, I find that during the last few years of the parties’ relationship and during the year following the parties’ separation (while the father lived in his mother’s home), the father was prone to frustration and anger which translated into him being impatient, raising his voice and yelling. Both N.M. and A.M. have reported this concern on too many occasions to too many of the professionals involved with this family for it to be ignored or waived away. In addition, the father himself readily admitted that he was quite stressed post-separation and was not parenting at his best. Clearly, the father’s parenting style is quite different that the mother’s, and N.M. is much more attuned to his mother’s parenting style and interests than his father’s.

[179] However, none of the evidence before me supports a finding that the father ever perpetrated any act towards the children that would amount to child abuse or even neglect. Further, as I have discussed above, the father has shown significant introspection and insight about his parenting and the behaviors that might have impacted his relationship with the children negatively, more particularly N.M., before and after the parties’ separation. He gained this insight through ongoing counselling, programing and seeking advice from many professionals. While not a perfect parent, there is not a shred of evidence that would support a finding that the children were ever at risk of harm in his care.

5- The maternal grandparents’ involvement

[180] During his testimony, the father complained about Dr. Cappon and his wife’s constant meddling in the parties’ affairs and their ongoing attempts to impose their views as to how the parties should behave, run their household or raise their children. Dr. Cappon, in particular, appears to have an exceptional amount of influence over the mother. While there were certainly many reasons for the fast and significant deterioration of the father’s relationship with the maternal grandparents (including different family backgrounds, values and traditions), this was certainly an important one.

[181] The email sent by Ms. Lefebvre Cappon to the father on February 18, 2018, roughly one year before the parties separated, illustrates this rift between the maternal grandparents and the father:

Quand tu es rentré dans la famille, je t'ai accueilli comme si tu étais mon fils. En retour, tu m'as vite fait comprendre que tu n'avais aucune intention de faire vraiment partie de notre famille. La division entre ta famille et nous a été très claire le jour de ton mariage, alors que tu étais beaucoup plus préoccupé de l'impression que les juges et les avocats auraient pu avoir de ta femme. J'en étais embarrassée.

Ce rejet gratuit à cause de ma nationalité au Québec, c'est ça que tu me fais sentir depuis ton arrivé dans notre famille. Tu nous rejettes depuis ton mariage d’une façon ou d’une autre, ce qui ne favorise pas l'harmonie dans ton mariage.

Le soir de la naissance de N.M., tu étais assis sur la seule chaise confortable de la salle de travail avec ton ipad à attendre que les choses se passent. Paul et moi, essayons de soutenir Natasha dans son labeur et finalement quand j'ai commencé à me sentir mal, j'ai du te demander de me donner ta chaise. Aucune prévenance envers Natasha ou moi qui est certainement plus âgée que toi.

Très souvent, tu réagis devant nous envers Natasha sans aucune retenue pour lui donner un message négatif ou la réprimander sur quelque chose. Je sais très bien qu'elle peut dire n'importe quoi, mais est-ce que tu t'es demandé pourquoi elle le faisait. Peux-tu sincèrement dire que tu es essai d'être un bon mari? Est-ce que tu montres un peu de tendresse? Est-ce que tu sors avec elle? Faire la cuisine n'est pas synonyme d'un mariage positif. En fait, tu as évincé Natasha de la cuisine car à la vérité tu préfères manger ce que tu veux et comme tu le veux. Si bien que maintenant des repas en famille dans votre famille n'existent pas (sauf probablement chez ta mère, je présume).

Hier: On est venu pour voir les enfants et Natasha voulait marquer l'anniversaire de Paul car N.M. était malade ce jour là et elle n'avait pas pu venir avec nous. Comme moi, tu as été malade toute la semaine. Ne te voyant pas, j'ai présumé que tu te reposais. Quand tu es apparu, tu nous as tout juste dit bonjour, puis tu t'es absenté pour le gâteau. Tu t'es mis à part du reste de la famille, lorsque nous étions dans la salle à manger. Lorsqu'on était au sous-sol avec les enfants, tu fais soudain irruption en criant sur Natasha qui ne t'avait pas parlé de Merlin. Est-ce que tu ne t'es jamais demandé pourquoi elle ne te demande pas toujours ton avis? Ton irruption devant les enfants était tout à fait inapproprié. Qu'est-ce que tu leur enseignes? Finalement, nous sommes repartis, car on ne se sentait pas à l'aise et l'expérience était négative. Ce n'est pas la première fois que ce genre de situation arrive. Si dans ta famille, c'est normale de se sauter dessus verbalement comme cela, ça ne l'est pas chez nous et dans la plupart des familles normales.

C'est bien malheureux pour les enfants qui grandissent dans la discorde et le manque de discipline. Résultats, A.M. est d'une maigreur inquiétante, à toujours la sucette à la bouche, demande les choses en geignant. Les manières, la politesse et des habitudes saines de nourriture l'attitude positive s'apprennent de bonne heure. Ça prend deux parents pour leur enseigner cela. On vous l'a déjà dit, vous devez travailler en équipe et non l'un contre l'autre. Ça prend de la coopération de la communication, de l'énergie, de l'entente, du contrôle de soi et de la volonté d'élever des enfants qui seront plus tard des êtres positifs et capable d'apprécier la vie.

[182] The father’s testimony in relation to the maternal grandparents’ meddling in the parties’ affairs is supported by the evidence as a whole, as well as by several emails sent by them to the parties over the years. Of particularly note is the following emails sent by Dr. Cappon to the parties in December 2014, because N.M. (who was only four years old at the time) had started to impersonate various cartoon characters such as “Sam the fireman”:

Natasha,

Having watched the video that your mother took of the Lycee concert, here is strong advice for you:

1. Cease playing the fireman Sam and soldier routines. In my case, I no longer respond when he plays this game. I change the subject. That, I believe, is what you should do henceforth.

2. Cease having him photographed and asking him to pose for you. It is exacerbating his inner withdrawal and will impede his social development. It can lead to narcissism.

Instead, encourage him to pursue new activities.

That does not mean banning soldiers and fireman Sam. It simply means ceasing to reinforce it the way you do.

And the picture taking things IS damaging. You should stop forthwith having him pose for anyone.

[183] On December 14, 2014, Dr. Cappon sent a follow up email (given the length of that particular email, I have included only the most relevant excerpts):

Natasha and Julian,

I feel that I need to write you again about my concerns, which are growing as a result of my more recent observations.

I did email you both two weeks ago about this. I believe it best to put this in writing so that you can better digest it, preferably in conversation together; and then ask me any question that you may have.

The issue is the risk to both his personality/sense of secure identity, and his social development, occasioned largely by your well- intentioned but profoundly mistaken tendency to render him "cute" as a poseur, and to encourage his "role-playing" in various uniforms. In this regard, the latest - through the astronaut costume - is a major error in judgement.

The solutions are simple: since you have created this problem, you alone have the power to reverse the trend before it is more deeply embedded.

For our part, we do not wish him henceforth to bring any costume to our home. Nor will we countenance his being in any character while here. This will be a strict rule. As I mentioned to you before, I simply ignore his role-playing now. I do not chastise him for it or ban it. I simply refuse to acknowledge it and I change the subject.

You may believe that, since the lycee is highly structured, he needs time at home to be imaginative and to engage in free play - and that is absolutely true. But he can engage in free play without disparaging himself indirectly and warping his identity through adopting other personas. Let him imagine, eg. Puff's world or another. Let him role play as interacting animals etc. without costume. You will know this is happening when he ceases to be so emotionally invested in identifying with any particular character.

1. Never have him pose for any photograph

2. Never encourage him to dress as any character

3. Cease entirely referring to your house as the fire station

4. Move gently but firmly away from his calling you Penny and Elvis. (We notice with great anxiety how upset he is when Martine apparently mispronounces one of these names. The upset stems from his fear of loss of identity if correct form is not followed by his interlocutor. He experiences this as a form of rejection -and that is bad)

5. No more new costumes

6. Have him gradually withdraw from Fireman Sam shows, as well as any other characters: Spider man etc.

7. Never refer to him as cute or good looking in his hearing

8. Try to move away from the impression you create, Natasha, that there is value in looks and celebrity. He is now absorbing that damaging lesson.

[184] While at the time of the events themselves, the maternal grandparents criticized both parties for their behavior and the parenting decisions they were making, during the trial they both laid the blame exclusively on the father, absolving the mother of any wrongdoing. Although Dr. Cappon’s first email above was sent to the mother only, and the second to both parties, during his testimony Dr. Cappon stated that what had prompted him to send that email was the father’s behavior towards N.M. More specifically, he stated that he had observed the father to lack patience towards N.M.’ development, and he was concerned that N.M. may have been fantasizing about being another person because of his father’s behaviour towards him.

[185] This is further evidence of the maternal grandparents’ propensity to change their narrative so as to lay all the blame at the feet of the father, to support their daughter’s narrative and position in this trial.

[186] While I have no doubt that Dr. Cappon and his wife love their grandchildren very much, their significant involvement in the parental dispute after the parties separated has fueled the conflict considerably and unnecessarily. I find that the maternal grandparents contributed – consciously or unconsciously – to the important deterioration of N.M.’ relationship with his father. By their actions, they have reinforced the mother’s message to the children that their father should be feared, and that they needed to be protected from him. Among many examples, the following ones clearly stand out.

[187] Dr. Cappon was present during the father’s first visit with the children after the parties separated. The mother had insisted that the visit take place in the parties’ home (which she then occupied), and under her and her father’s supervision. The father described Dr. Cappon sitting on the couch sternly, ignoring him and angrily glancing at him. Dr. Cappon refused to leave the father alone with the children and when the father asked the mother a question, Dr. Cappon told the mother in front of the children that she had no obligation to respond to the father’s questions during his parenting time. Dr. Cappon’s behavior was not only uncalled for, it reinforced the message to the children – very early on – that the father was a danger to the mother and the children, and that “war was on”.

[188] It is not disputed that since the parties’ separation, Dr. Cappon and his wife have been involved in most exchanges of the children between their parents’ homes. The father explained that at exchanges, at least one – and frequently both – grandparents accompany the mother when she drops off or picks-up the children. Given that there are three children, two cars are often required and as a result a convoy of two vehicles often shows up at exchanges. From the father’s perspective, and from the children’s as well I am certain, this looks like a military exercise required to ensure their and their mother’s safety.

[189] The evidence also showed that when the father’s visits with N.M. were still taking place at the park, the mother insisted that Dr. Cappon be permitted to supervise. Given the very toxic relationship between the two men by that point, it was completely unreasonable for the mother to suggest Dr. Cappon as supervisor, and the father justifiably refused. Nonetheless, Dr. Cappon continued to attend at the park during the father’s visits (which were supervised by another third party), watching from a distance.

[190] But the most revealing example of the maternal grandparents’ detrimental interference in the children’s relationship with their father is the complaint Dr. Cappon lodged against Dr. Sherman. Not only was this complaint inappropriate and unjustified (if such a complaint was to be made, it ought to have been by the mother, not by Dr. Cappon), but in addition many of the allegations made by Dr. Cappon against Dr. Sherman were either absurd, unsubstantiated or unjustified personal attacks on his professional integrity. For instance, he alleged that:

• The CAS investigation had been closed without resolution as a result of the father’s refusal to participate in the investigation (he failed to mention that N.M.’ disclosures were deemed to be not credible);

• Dr. Sherman had declared to the mother that he had a “strong bias favourable to the father”;

• Dr. Sherman had “alluded to his own personal experiences of his divorce and his children choosing live with him” during a meeting with the mother;

• Dr. Sherman “exerted constant pressure” on the mother and N.M. to see his father based on a schedule that he unilaterally imposed;

• Dr. Sherman’s area of expertise was autism, ADHD and other issues unrelated to N.M.' issues, whereas the OERC (where Dr. Cocea worked) “specializes in problems of adaptation of children whose parents have had difficult separations”;

• On December 21, 2020, the counsellor assigned to the case of N.M. (Dr. Cocea) had determined that N.M. “was troubled about being coerced by Dr. Sherman”.

[191] Notably, Dr. Cappon has never met Dr. Sherman. He was never present during any of the sessions that Dr. Sherman conducted. During his testimony at trial, Dr. Cappon maintained that his complaint was based, exclusively, on the information that N.M. had given him, and he justified it on the basis that “someone had to be the voice of the child”.

[192] However, when one reads the complaint filed by Dr. Cappon against Dr. Sherman, it is very obvious that much of the information he used could have only come from the mother herself. Indeed, Dr. Cappon’s various grievances and accusations against Dr. Sherman’s work mirrored exactly those of the mother. To try to make the court believe, as Dr. Cappon and the mother did, that Dr. Cappon’s complaint was filed without the mother’s knowledge is absurd. I find it is more likely than not that this complaint was filed as a concerted effort by Dr. Cappon and the mother to end Dr. Sherman’s involvement with this family once they realized that he did not support their views that N.M.’ contact with his father should be strictly limited and supervised on an ongoing basis.

[193] Rightfully so, Dr. Cappon’s complaint was dismissed in its entirety by the College. Unfortunately, as a result of Dr. Cappon’s actions, the small and slow-paced but crucial advances achieved through Dr. Sherman’s reunification work were lost. I find that Dr. Cappon knew that his complaint against Dr. Sherman to the College would sabotage the reunification process between N.M. and his father and put an end to it.

[194] It is notable that in his complaint to the College, Dr. Cappon writes that a parenting assessor (Ms. Morinville) has been retained and that “This report will constitute the major influence in the court's decisions on these critical issues”. Yet, Dr. Cappon does not accept Ms. Morinville’s unequivocal conclusions that it is in N.M.’ best interest to repair his relationship with his father, or her recommendation that his parenting time be gradually increased.

6- The children

[195] All witnesses in this trial, including both parents, described the three children very fondly. N.M. was described as a very intelligent, sensitive and gentle child who is mature beyond his years. He has many interests including hockey (his main one), Legos, soccer and books (with a particular interest in the Lord of the Rings and Star Wars series).

[196] A.M. was described as very smart and imaginative with amazing abilities in visual and spatial arts. He was described by his father as able to build entire worlds with Legos and on Minecraft. A.M. is also very sensitive and has an enhanced need to be treated fairly. He can become emotional or impatient rather easily, including if he loses while engaged in play. A.M. loves to swim, play soccer, build things with Legos and has started playing hockey last year.

[197] C.M., as the youngest child, was reported to be very attached to his older brother A.M. from the moment he was born. Not as emotional as his older brothers, he is not easily intimidated by anyone. He was described as a very calm child who has gigantic belly laughs. If he could, he would play videogames all day, but he is very much into hockey, is a talented soccer player for his age, and loves to be active.

[198] The evidence before me supports a finding that both parties were very much involved in the children’s lives before their separation. Both parents were employed on a full-time basis and both wanted children very much. When N.M. was born, both parties took a parental leave from their employment to be home with the baby, with the mother taking a longer parental leave than the father. I accept the father’s evidence that during their parental leave with N.M., both parties cared for him on a day-to-day basis, taking him to his baby classes (music, fitness) and swimming lessons.

[199] During the 2013 Christmas Holidays, when the mother was pregnant with A.M., the parties had a huge fall-out as a result of a conflict that arose between them and the maternal grandparents over the paternal grandmother’s request to attend their home to deliver gifts for N.M. At that time, the parties considered separating. The following email sent by the mother to the father on January 3, 2014, supports three conclusions.

[200] First, the father was clearly very involved in N.M.’ care at that time because the mother was imposing a relatively equal time-sharing schedule for him going forward. Secondly, even back then the mother had a tendency to appropriate herself with decision-making responsibilities, imposing her unilateral decisions about what should happen to N.M. without consultation with the father. Thirdly, the relationship between the mother and her in-laws was as strained as the relationship between the father and his in-laws. The mother wrote:

• I will no longer eat dinners with you starting this evening. I will prepare my own meals with N.M. on Mon, Wed, and Fridays. You will prepare N.M.' meals and eat with him on Tues and Thurs.

• We will continue to sleep in separate bedrooms.

• Once your mother has moved into her town home the living arrangements can be as follows: I will stay in the house and care for N.M. from Mondays to Fridays. You can stay at your mother's place. On weekends I will stay with my parents and you will have sole care of N.M. in the house.

• You may take the car on Mon, Wed. and Thursdays when I am working from home, and most of the times on weekends to run errands and take N.M. to his activities. I may request to use the car on those days where I have appointments or have to run errands.

• You will care for N.M. in the house while I am in hospital delivering the baby. You will not be present at any time for the birth. Once I am recovered you may be permitted to visit the baby at the hospital (perhaps day 3) should I so chose. I do not wish for your family to visit the baby at the hospital with the exception of Justine should I so chose to invite her.

• Your mother cannot see N.M. or come to our house without calling me and making arrangements with me directly. Same applies once the baby is born.

• We will keep a joint account and continue bill payments as usual until such time as we can come up with a suitable arrangement.

• I will grant a divorce only once the house has been put on the market and sold at a fair price after the baby is born, and once childcare arrangements have been reached.

[201] Eventually the parties mended their relationship, but the father testified that from that point on, they were on a downward slope. Their love story had ended, but they plowed on as co-parents, due to their shared love of the children.

[202] When A.M. came along, it was agreed that the mother would take the entire parental leave with him. This was because the father was very busy at work at the time, transitioning to an acting deputy director position and it was difficult for him to get away. The father readily admitted that times were hard following A.M.’s birth as a result of health issues he (A.M.) experienced, but also because the parties were under financial and relationship stress in addition to having to care for two young children.

[203] Shortly after C.M. was born in 2016, he was admitted to CHEO based on concerns that he might have meningitis. While the mother stayed at the hospital with him, the father remained at home to take care of the older two children. The father had already made arrangements at work to be off for C.M.’s birth, and the parties had agreed that the mother would take the first half of the parental leave with him while the father would take the second half (six months each). The father testified that the mother very much wanted a girl, and when their third child was born a boy, she experienced significant disappointment. Due to the father being C.M.’s primary caregiver for several weeks after his birth (because of renovation work being completed in the parties’ home and the mother’s need to tend to the maternal grandmother’s care as a result of health issues) and having been a full-time at-home parent for him for six months, a very special bond was created between C.M. and his father, one which remains to this day.

[204] The evidence supports a finding that the parties divided among them the house-related work, and both were involved in preparing the children’s meals, feeding them, bathing them, changing diapers, driving them to and from daycare, school and activities. I do not accept the mother’s and maternal grandparents’ evidence that the father never did anything with the children. I accept that whenever the maternal grandparents were present, the father generally disengaged from the family (and, therefore, from the children) because he preferred not to be around them and to keep his distance.

[205] The father also chose to generally keep his distance from the mother (and, therefore, the children) while together in the home to avoid conflict with her. In doing so, the father most likely missed many opportunities to be involved in the children’s day-to-day lives, and to participate in family and other events that were important to them. It is not surprising, given the above, that maternal family members and friends of the mother’s family who testified at trial were of the view that the father never attended family events, observed that the father “spent as little time as possible with the family”, “minimally engaged” when present, and was “generally absent” and “disengaged” from the family.

[206] Nonetheless, the father was still an active participant in the children’s day-to-day care, activities and upbringing, and he shared a close bond with them. It was not disputed that the father frequently took the children with him to spend weekends at their paternal grandmother’s cottage. During his interviews with her, A.M. reported to Ms. Morinville that he liked to run with both of his parents, play with Lego and do crafts. Despite all the bad things he had to say about his father, N.M. nonetheless reported to Ms. Cluff (Society worker) during a November 26, 2019 interview that the best thing about his dad was playing sports. When interviewed by Detective Gervais on January 2, 2020, he repeated that he liked to do sports with his dad such as tennis and basketball, and that he liked to spend time with both his parents.

[207] Sister Nesrine, who is a Program Coordinator at L’Académie Providence where A.M. and C.M. go to school, reported to Ms. Morinville that she had a good relationship with both parents. She reported that she had less interactions with the father because she was aware that the children were in his care less. She reported that the children were doing very well at school, that they studied well and worked well with classmates. She expressed that the children were "gentlemen" at school, played well with peers and that the school had no concerns. Although this information was provided back in 2020-2021, no evidence was brought to my attention during this trial that would indicate that this has since changed.

[208] Ms. Jacynthe Bergeron, Director at Garderie Providence where A.M. and C.M. attended (before and after the parties’ separation), reported to Ms. Morinville that both parents were patient with the children when dropping them off or picking them up. She did not see anything from the children to suggest that they were mistreated in any way. The children were equally happy to see either parent before the parties’ separation and C.M. was always happy to see his father whether before or after the parties’ separation.

[209] While I conclude that both parents were meaningfully involved in all aspects of the children’s upbringing and in their day-to-day care prior to their separation, I accept that the mother took on a leading role in organizing the children’s extracurricular activities, scheduling medical appointments and ensuring that N.M.’s homework was completed (C.M. was in daycare at the time of the parties’ separation and A.M. was only five). I also accept the father’s evidence that during the parties’ marriage, it was easier to take a step back and agree with the mother’s decisions for the children rather than face the consequences of disagreeing with her and Dr. Cappon.

[210] While the mother took on a leading role in organizing things for the children, the father took on an active role in ensuring the children’s attendance. For example, he frequently attended the children’s medical appointments without the mother due to his more flexible work schedule. The father’s evidence that he was responsible “for 100% of N.M.’s hockey practices and games” prior to the parties’ separation was not seriously challenged by the mother. As noted by Ms. Morinville, it was the father who organized N.M.’s speech therapy appointments.

[211] After the parties’ separation, due to the restrictions imposed by the mother herself but also due to the CAS’ investigation and the father’s release conditions, he was essentially ousted from the children’s day-to-day care and prevented from having any involvement at all in their extracurricular activities, schooling or health care.

[212] Based on all the evidence before me, I conclude that while N.M. was more closely bonded to his mother before the parties’ separation, C.M. was more closely bonded with his father. A.M., as the middle child, was not reported to have a more special bond with either of his parents. Regardless, all three children shared a close and loving bond with both of their parents.

[213] I accept that the children had and continue to have a very close bond with their maternal grandparents and extended family. This was never disputed by the father. I have important concerns, however, about the negative messaging that the maternal grandparents have been giving the children about their father, and the possibility that they will continue – consciously or unconsciously – to undermine his role in their lives based on their own ill feelings towards him.

[214] The mother, unfortunately, was never able to acknowledge that the children also had a close bond with their paternal grandmother and with their paternal aunt Justine. The uncontested evidence before me is that when the children were in their father’s care before the parties’ separation, they frequently spent weekends at the maternal grandmother’s cottage where they would spend time not only with their father and grandmother but also with their aunt Justine.

[215] Justine is N.M.’ godmother. During her testimony at trial, she explained that she used to have a very close bond with him, that she accompanied him in some of his school trips when he was younger, attended many of his extracurricular events, and that he sometimes slept over at her place. Once the parties separated, Justine’s contact with N.M. was significantly limited. Even when the father’s parenting time with N.M. resumed, the mother objected to her acting as a supervisor and even objected to her being present at all during those visits. Justine attended an observation visit between the father, A.M. and C.M., and Ms. Morinville reported that A.M. ran to greet her when she arrived in the parking lot.

[216] N.M.’s statement to Ms. Morinville that seeing his aunt Justine for the first time in months while he was biking “freaked him out”, shows the extent to which N.M. has unreasonably and unjustifiably rejected not only his father, but his father’s entire family. Justine only started seeing N.M. again in the summer of 2022 when the father’s parenting time with N.M. was moved to his own home. Nonetheless, their relationship continues to be distant and cold.

[217] I find as a fact that before the parties’ separation, all three children shared a loving relationship with their paternal grandmother and especially with their aunt Justine. A.M. and C.M. still do, but there is a lot of work needed for N.M. to restore the healthy relationship he had with his godmother.

7- The mother’s behaviour

[218] I find that the mother has unilaterally and unreasonably restricted the father’s parenting time following the parties’ separation. This was done out of anger to punish the father, and not as a result of safety concerns.

[219] For instance, immediately after they separated the mother would not agree to more than one weekly visit between the father and the children (not including an overnight). She also placed restrictions and conditions that the father was required to meet before his parenting time could take place as scheduled (for instance, insisting that his parenting time could not occur outside of a 30-kilometer radius, knowing full well that the paternal grandmother’s cottage – which the children very much enjoyed – was 40 kilometers away from his home).

[220] Once the father was able to spend full weekends with the two younger boys, the mother’s objections to him going to his mother’s cottage with them ceased. Instead, she unilaterally registered them in a multitude of activities which required them to be at different places at the same time on the same day, during weekends, without any consultation with the father. The father’s refusal to take them to all these activities was then used by her to vilify him in the eyes of the children, and in this legal proceeding.

[221] Unfortunately, the COVID pandemic provided the mother with additional tools that she used to interfere in the father’s parenting time with the children. There was no justification for much of the conditions she imposed, other than curtailing the time the children could spend with their father and making it as difficult as possible for the children to enjoy their time with him (particularly N.M.).

[222] The mother has withheld the boys’ ski equipment, hockey equipment, preferred toys and school textbooks, as a means to prevent the father from enjoying these activities with them or to meaningfully engage in their extracurricular activities and schoolwork. To avoid all the difficulties this created, last year the father purchased separate hockey equipment for A.M. and an entire set of school textbooks for the two younger children to use in his home. He could not afford to purchase new ski equipment for them and as a result, did not bring them to their ski lessons on his parenting time.

[223] When the father was finally able to enjoy his first week of Christmas Holidays with the younger two children in four years (at Christmas 2022), the mother unilaterally registered A.M. in a soccer camp which ran for four hours every day that he was to be in his father’s care that week. The evidence clearly demonstrates that the mother registered A.M. in that camp after the parties had agreed to the holiday schedule (and therefore she knew that the two younger boys would be with him that week), and that she told A.M. about the camp before notifying the father about it. The mother knew full well that the father would be unable to deny A.M. this exciting opportunity (without disappointing him greatly), and by the same token she ruined any plans the father might have made (including going to the cottage or to his partner’s home) for his Christmas week with the boys.

[224] The mother has not allowed the father to have any involvement in the children’s health care since the parties separated. She has taken significant steps to curtail his access to information about their health; she has either ignored the father’s requests for information or provided selective information meant to ensure minimal involvement on his part; she has withheld important information about the children being sick or not provided same in a timely fashion for the father to be part of the solution; she has unilaterally changed medical appointments that the father intended to attend, changed the children’s dentists and unilaterally decided on treatment plans, generally without the knowledge of, or consultation with, the father.

[225] The mother has adopted the same pattern of behaviour in relation to the children’s extracurricular activities, registering them in a panoply of sports and activities without consultation with the father or despite his voiced objections or concerns. Given the father’s limited parenting time with the children, his reduced ability to pay for these activities (considering his child support obligations and the high costs of the children’s private school tuition) and his expressed wish to enjoy other, less structured activities with them, the father has been very resistant to the children being registered in a multitude of activities on weekends, including in competitive sports.

[226] Despite the father’s voiced concerns and objections, the mother has continued to unilaterally register the children in the many activities of her choice, only to blame the father for the children’s failure to attend all these activities consistently while they are in his care, leaving them disappointed and further undermining their relationship with him. While the mother is of the view that co-parenting is impossible with the father given his oppositional personality, in reality the mother is simply unwilling to hear or consider any views which differ from her own.

[227] It is readily apparent when one reads Ms. Morinville’s report of her interviews with A.M. and C.M. that they were much more prone to report negative things about their father when they were interviewed in their mother’s home than when interviewed in their father’s home. It is clear that these children’s expressed feelings about their father were very much influenced by their mother’s ill feelings towards him, and her demeanour and negative messaging about him, including before and after the father’s parenting time.

[228] During a virtual interview between Ms. Morinville and C.M., he reported that “he likes going to his father's house but sometimes he does not want to go because it makes his mother sad when he goes. He denied that she cries when he leaves but stated she told him “she is sad”. During an interview at his mother’s home A.M. reported he would not want to spend more time with his father than he does now because he likes his mother “a bit more”. In a later interview (via Zoom while at his father’s house) A.M. stated he should spend a “tiny bit more time” at his father's because A.M. misses his favourite things there.

[229] It is clear that N.M. and A.M. experience significant loyalty conflicts when it comes to their parents.

[230] Professionals involved with this family have also reported concerns about the children’s exposure to the parental conflict while in their mother’s care. As an example, Ms. Bergeron (Director at C.M.’s daycare) expressed that C.M. sometimes used adult words when talking about his parents' separation. To give an example, she told Ms. Morinville that on one occasion, C.M. said “Papa est méchant parce qu'il a vole l'argent de maman” (“Dad is bad because he steals my mom’s money”).

[231] I share Ms. Morinville’s conclusion that the children have been exposed to much information concerning the adult conflict while in the mother’s care. Despite several professionals having pointed out to her on several occasions that it was not healthy for the children to be exposed to negative messages about their father or to be informed of the adult conflict, the mother has gained no insight about how damaging this has been, and continues to be, for these children.

[232] Unfortunately, the mother has also taken positive steps to damage the father’s reputation with many of the professionals involved with the children. Ms. Bergeron (Director at the children’s daycare) reported to Ms. Morinville that after the parents' separation (in September 2019), the mother advised her that the father was not permitted to come to the school and that the teachers were to call the police if he attended. There were absolutely no such restrictions in place at the time. When Ms. Bergeron pointed out that the mother did not have any documents confirming this and that the daycare could therefore not deny the father access to the children, the mother went to see the teachers directly the next day to tell them that the father could not pick C.M. up from daycare. Ms. Bergeron told Ms. Morinville that she felt this was manipulative on the mother’s part and that the daycare continued to allow the father to have access to C.M. without restrictions.

[233] Following this incident, the mother made an appointment with Dr. Palayew, the children’s pediatrician, to “request a letter for school”. During that appointment, the mother disclosed to Dr. Palayew “information about the father’s family history of mental health issues and sexual abuse”. In a later appointment in January 2020, the mother reported to Dr. Palayew that the father “had been looking at violent porn, incest and minors online” and that N.M. had been “molested” by his father.

[234] Despite all the efforts deployed by the mother to undermine the father’s relationship with C.M. and A.M., they have not (yet) been successful. This is due in large part to their young age and the father’s ability to resume meaningful parenting time with them immediately after the CAS investigation concluded in February 2020. Unfortunately, this has not been the case for N.M.

8- N.M.

[235] In my view, the pattern of family violence that threatens N.M.’s present sense of security is not the father’s conduct during the marriage; it is the post-separation actions of the mother, as supported and reinforced – consciously or unconsciously – by N.M.’s maternal grandparents.

[236] N.M. has not been allowed to have separate feelings for his father than those held by his mother and grandparents. N.M. has never been permitted to feel safe in his father's care, and his mother has worked relentlessly to reinforce his fears in that regard, all the while undermining anything positive his father had to offer to him.

[237] During a case management conference held on June 11, 2021, the parties agreed to implement the recommendations of Ms. Morinville as they related to the father’s parenting time with the children. Although she was proposing a gradually increasing parenting time regime between N.M. and his father, which would have had him spend as much time with his father as his two younger brothers within months, this never happened. Since the summer of 2021, N.M. has had parenting time with his father only one day (eight hours) every other weekend (since June 2022 these visits are unsupervised) and one evening (for three hours) in the alternate week. Both visits take place while his younger two brothers are also in their father’s care. N.M. rarely stays at his father’s house for the entire time.

[238] The evidence before me is replete with examples of the many ways the mother has undermined N.M.’ relationship with his father and reinforced his belief that he cannot be or feel safe in his presence. Many of those examples have been described above, but the following non-exhaustive examples specifically related to N.M. particularly stand out.

[239] N.M. has been supplied with a cell phone by his mother, which he brings to his father’s home during his parenting time with him. While this was suggested initially by Dr. Sherman as a mean to encourage N.M. to begin unsupervised visits with his father and to make him feel more comfortable during his visits, it was never meant to be a permanent arrangement. More than two years later, and despite the father’s frequently voiced objections, N.M. continues to bring his cell phone to visits with his father and the mother continues to encourage him to call her whenever he wants to be picked up and brought back home to her, which he does almost every time. If N.M. does not call himself, the mother reaches out to him to ask whether he wants to be picked up early.

[240] On his mid-week visits with his father, N.M. frequently has a hockey game or a practice. The mother has not permitted the father to take N.M. to his games or practices, because “N.M. does not want his father there” and it embarrasses him. According to her, if the father insists on driving N.M. there, he will refuse to go. Therefore, the mother keeps N.M.’s hockey equipment in her car (instead of leaving it at his father’s house) and N.M. knows that she is a phone call away to take him to his practice even if he is in his father’s care. It is noteworthy that before the parties’ separation, the father was primarily (if not exclusively) responsible to bring N.M. to all his hockey practices and games.

[241] In May 2021, the father reached out to the mother to inform her that N.M. had told him that what he wanted most for his birthday was a hockey training toy called a “SuperDeker”. The toy was quite expensive, so the father proposed to the mother that they purchase the toy together and offer it to N.M., telling him that it was from both of them. This proposal, the father explained, was an opportunity for him to show N.M. that he shared his interest in hockey, and for the parents to show N.M. that they were able to unite despite the acrimony between them to make him happy. The father told the mother that he was even prepared to pay for the entire purchase price but still tell N.M. that it was from both of his parents.

[242] The mother initially did not respond. However, upon receiving confirmation of the purchase from the father, she advised that she was not sure whether he had purchased it yet, so she had. The father responded that he would just return the one he had already purchased and asked how much his share was. The mother never responded. Instead, she gave the toy to N.M., as her gift to him for his birthday.

[243] As explained in detail earlier in this decision, the mother unilaterally retained the services of various professionals in the hope that they would agree with and support her views that the children’s contact with their father should be significantly restricted. I find as a fact that this was the mother’s objective when she unilaterally retained Dr. Sherman’s services. I do not accept the mother’s assertion that Dr. Sherman was never retained to provide reunification therapy. If that were the case, why would she have requested the father’s participation in N.M.’ counselling?

[244] However, the mother was not able to gain Dr. Sherman’s support in restricting N.M.’ contact with his father. Instead, with Dr. Sherman’s support and guidance, N.M. and his father began communicating and N.M. was given a safe space in which he could tell his father why he was so angry at him and the reasons why he did not want to spend time with him. Similarly, Dr. Sherman guided the father in how to respond to N.M.’s anger in ways that were appropriate and supportive of repairing their relationship. He also worked with the mother and requested that she, as the favoured parent, give permission to N.M. to love his dad and have a relationship with him. When the mother realized that Dr. Sherman would not support her unstated objective, and instead would recommend an increase in N.M.’s parenting time with his father, she unilaterally terminated his services.

[245] It is specifically for that purpose that the mother carefully chose and unilaterally retained Dr. Cocea to provide individual counselling to N.M. and A.M. while Dr. Sherman was still involved, without informing him or the father. The uncontested evidence before me is that Dr. Cocea was a counsellor in a Violence Against Women program and as such, her mandate was to provide counselling to children having been exposed to domestic violence. Accordingly, she does not work with fathers, only with mothers. The mother knew this and this is the very reason why she chose her to provide counselling to N.M. and A.M.

[246] The mother does not believe that N.M. needs to have a relationship with his father. When the parties separated and even though N.M. was only eight years old, the mother has allowed him to decide whether to have a relationship with his father or not. By her actions she has supported his rejection of his father and encouraged him to resist this relationship. To this day, the mother has not and continues to not accept the outcomes of the various investigations that were undertaken by the CAS, the police and Ms. Morinville. She continues to dispute the unanimous recommendations of all professionals involved with N.M. that he needs to repair his relationship with this father and spend more time with him. Despite professing her desire to support a relationship between the children and their father, in reality the mother does not.

[247] I wholeheartedly share Ms. Morinville’s, Dr. Sherman’s and Ms. Gervais’ common view that it is not healthy for N.M. to not have a relationship with his father.

[248] During his closing submissions, the father sought to amend his claim by adding a request that N.M. be placed in his exclusive care for a period of 60 to 90 days, to allow for a period of separation from his mother and maximize the chances of success of the reunification plan he intends to put into place. I have seriously considered doing so. However, both Ms. Morinville and Dr. Sherman were of the view that it was not enough to expose N.M. to more time with his father if his anxiety around being with him was not appropriately addressed. In their view, this could cause N.M. significant emotional harm and further damage his relationship with his father. In addition, I have not been provided with the specifics of the father’s reunification plan in the event I agreed to place N.M. in his full-time care for such a long period of time. Without professional recommendations supporting this plan, I have decided against it.

[249] In my view, the multi-faceted family therapy advocated by Ms. Gervais during her testimony, coupled with a gradually increasing parenting schedule as proposed by Ms. Morinville, continues to be the best plan for N.M. at this time. There are also many parameters that must be imposed to maximize the chances of this plan succeeding. Among others, N.M. – and the mother – must be denied any ability he has of dictating his time with his father. It is also necessary for the father to have sole decision-making responsibility over all reunification efforts, therapeutic treatments and other form of professional interventions related to repairing his relationship with N.M.

[250] Additionally, it is of the utmost importance, given the history of this case, to strictly limit the mother’s ability to interfere with this reintegration plan. Among other things, the mother will be refrained from unilaterally terminating the services of any professionals retained by the father, and from filing complaints against mental health professionals involved with this family without first obtaining leave of the court. Both parents will also be refrained from discussing or sharing with family members and friends what happens in reunification therapy, and will be required to take positive steps to prevent friends and family members from interfering in any way in the reunification process.

[251] Finally, given the amount of work that continues to be necessary to repair N.M.’s relationship with his father, I am not prepared to make a final order today as it relates to N.M.’s parenting time with his father, but only a temporary one. I shall be seized of this matter for a period of two years to ensure full compliance with the parenting order I make below, and to supervise the parties’ progress in relation to the reunification process between N.M. and his father. I will make myself available to hear motions as may be needed to assist with the reunification work.

9- A.M. and C.M.

[252] I find that A.M. and C.M. have a close and loving relationship with both their parents. I find that both parents were intimately involved in their education, health care and activities before the separation and that both parents have a demonstrated ability to properly care for them on a day-to-day basis.

[253] The father is not asking to have primary care of the two younger children; he asks for equal parenting time. The mother seeks to reduce and further limit the father’s parenting time with the two boys. I find that this is an unreasonable position for the mother to take, considering all the evidence before me.

[254] I find that both A.M. and C.M. enjoy their time with their father very much. When interviewed by Ms. Morinville, A.M. reported that he is not afraid of anything in either of his homes, and that he enjoys going to his father’s home. In April 2021, A.M. stated he had been at his father's home for three days when the interview occurred, and they had done many fun things, including playing outside every day, going to the park "several times", running, playing games, as well as indoor activities such as Lego and watching television. During that interview A.M. stated that he could not think of anything he would change about either of his parents, and that he liked them "how they are".

[255] When the father saw A.M. and C.M. for the first time in March 2020 (after the Society closed its investigation), and after having had no contact with the children for almost five months, the children were thrilled to see him. Sister Nesrine, who is a program coordinator at L’Académie Providence where A.M. and C.M. go to school, reported that when the father came to the school to see the children that day, she observed that A.M. and C.M. "loved it" and were very happy to see their father. They hugged him and appeared to have really missed him.

[256] Even the mother had difficulty coming up with any negative evidence in relation to C.M.’s relationship with his father.

[257] When Ms. Morinville completed her report, A.M. and C.M. were (almost) 7 and 4, respectively. At the time of this decision, they are 9 and 7. They have had consistent, ongoing and increased parenting time with their father for the past three years. They are old enough to share their time equally with each of their parents which I find is in their best interest at this time. Furthermore, I find that it is imperative for them to spend longer periods of uninterrupted time with their father to reduce the mother’s ability to negatively influence their views of him.

[258] In light of the parties’ very different views about the nature and extent of the extracurricular activities that each of the children should participate in, I have considered imposing what we commonly refer to as a 2-2-5-5 parenting schedule. However, to ensure that the children have long and meaningful periods of parenting time with each of their parent, and to minimize the need for parental interaction and contact between them at exchanges, I have ultimately concluded that a week about schedule would be best.

10- Final conclusions on parenting

[259] Despite my harsh conclusions in relation to the mother, I wish to make it clear that in my view, N.M.’s estrangement from his father is not uniquely due to the mother’s actions post-separation. It is the result of many factors including N.M.’s natural affinity towards his mother, the parents’ very different parenting styles, their dysfunctional relationship and co-parenting during their marriage, and the very high level of conflict between them before and after they separated.

[260] It is incumbent on the parties, if they truly love their children as they claim they do, to gain insight into their own behaviors and to make the changes that are necessary for them to become better parents and to begin co-parenting effectively with each other. Most critically, they must truly support and promote the other parent’s relationship with the children and allow them to love both of their parents. The children’s well-being depends on this.

[261] Based on all the evidence I heard during this lengthy trial, I wholeheartedly agree with the following statement made by Ms. Morinville at the end of her report:

N.M., A.M. and C.M. are three wonderful, energetic, endearing children who deserve the very best from both their parents. Although Ms. Cappon is a very capable, engaged, nurturing mother, and Mr. Malone is a loving father, the parents are not providing their very best to the children while they remain engaged in conflict with each other. It is important for the children that their parents resolve the remaining issues between them and learn to co-parent. Regardless of what the end result is with respect to who makes decisions or how much parenting time each has, Mr. Malone and Ms. Cappon are tied to each other through these beautiful children, and it is incumbent on them to make it work. They owe that to their children.

[262] l wish to communicate to the mother that superficial cooperation with the reunification counsellor or superficial compliance with the order I make below will not suffice. They may put her at risk of N.M. being placed in the primary care of his father upon the return of this matter before me, if the evidence supports a finding that it would be in his best interest to do so to facilitate the reunification work.

C. PARENTING ORDER

Based on all the above, I make the following parenting order which is made on a final basis, with the exception of paragraphs 40 to and including 43 which are made on a temporary basis:

Decision-Making – General

1 - Except as otherwise set out below or in the event of an emergency, the parties shall:

a. Notify one another as far in advance as is reasonable in the circumstances of important decisions which may need to be made as well as any related deadlines;

b. Fully explore and research issues which arise on behalf of, or which affect the children about which decisions need to be made;

c. Provide to one another as much information and/or documentation as is available in the circumstances to explain and support their respective perspectives in relation to the issues to be decided;

d. Respectfully receive and consider all information and/or documentation from one another;

e. Provide reasonable timelines for a response and respect the reasonable requests of the other party for a timely response; and

f. Recognize and respect the value of the other's input and perspective in relation to all issues which affect the children about which an important decision may need to be made, before they make any new significant decision about any of the issues.

Decision-Making – Education

2- N.M. shall remain enrolled at Lycée Claudel school unless both parties agree on another school. His tuition and other academic fees shall be s.7 expenses shared between the parties in proportion to their income.

3- A.M. and C.M. shall remain enrolled at Académie Providence until each child has completed their elementary education (not including junior high). The cost of their tuition and other academic fees shall be s.7 expenses split by the parties in proportion to their income.

4- When each of A.M. and C.M. have completed their elementary education, the issue of private school (including what school the child should attend, and whether private school remains appropriate) for each of A.M. and C.M. shall be reviewed at that time (i.e., A.M. when he has completed his elementary education, C.M. when he has completed his elementary education).

5- Any such decision with respect to the continued education of C.M. and A.M. shall be made jointly by the parties. In the event the parties are unable to make the decision jointly, the father shall have the authority to make the final decision in the children's best interests.

6- Each parent shall have unfettered access to information from the children’s schools, and each shall be responsible to make arrangements with the children’s schools to receive their own separate notifications, schedules, report cards and communications. Each parent shall schedule their own parent-teacher interviews.

Decision-Making – Health

7- The children shall remain in the care of Dr. Karen Palayew as their primary care physician, in the care of Dr. Tanya Bracanovich as their treating dentist, in the care of Dr. Lauren Seagal as their immunologist and allergist. Any changes in that regard can only be made if both parents agree in writing.

8- The mother will book the children's medical appointments. She will advise the father in writing at the time of the booking, of the date, time and name of the professional. Either parent can attend medical appointments for the children. If the father plans to attend an appointment, he shall give the mother notice of his attendance within 48 hours of receiving notice of the appointment. On receipt of the father’s confirmation of attendance, the mother shall arrange accommodations for both parents to speak individually with the doctor.

9- The father will book the children's dental appointments. He will advise the mother in writing at the time of the booking, of the date, time and name of the professional. Either parent can attend dental appointments for the children. If the mother plans to attend an appointment, she shall give the father notice of her attendance within 48 hours of receiving notice of the appointment. On receipt of the mother’s confirmation of attendance, the father shall arrange accommodations for both parents to speak individually with the dentist.

10- Both parents shall be capable of, either jointly or independently, discussing the children's health, well-being, and ongoing needs with the children's health care providers and shall be provided with any information necessary to make informed decisions. The parties shall each sign a consent permitting the other party to discuss all matters with the children's physicians.

11- Decisions with respect to the children's health shall be made jointly by the parties. Should the parties be unable to reach a decision jointly, the written recommendations of the treating physician or health provider (Dr. Palayew, Dr. Bracanovich, Dr. Seagal, treating specialist, or emergency physician) shall govern. Any cost associated with obtaining written recommendations from a treating physician shall be paid by the party seeking the written recommendation.

12- Either party is at liberty to obtain a second opinion with respect to a child's health concern. Any cost associated with obtaining a second opinion will be the responsibility of the parent seeking the second opinion. If there remains a dispute between the parents, the recommendation of the original treating physician shall govern.

13- In the event emergency care for any child is required without time to inform the other parent, the parent in whose care the child shall make any decisions and shall immediately inform the other parent of all necessary information, including the emergent condition, treatment options, and the decision made for care.

14- No family member or new partner of either parent shall attend medical appointments for the children or communicate directly with their treating professionals without the written consent of both parents.

15- The parties shall exchange all necessary information to ensure the appropriate co-ordination of their extended health care benefits.

Decision-Making – Mental Health and Reunification Therapy

16- Neither parent shall retain the services of mental health professionals for C.M. or A.M., without the other parent’s written consent.

17- The father shall have sole decision-making responsibility in relation to any mental health support and reunification process for N.M.. The father shall strive to locate therapists who have relevant training and expertise in reunification therapy and attachment therapy.

18- The father shall provide the mother with all relevant information about the various therapists he is considering and give her a reasonable opportunity to provide her views and input. The father shall consider the mother’s views and input before choosing the therapist, however, the final decision shall be his alone.

19- The mother shall actively participate and cooperate in the reunification process and follow the recommendations made by the therapist in relation to individual counselling, parenting support or programming needed.

20- The father shall follow any recommendations made by the reunification therapist in relation to individual counselling, parenting support or programing needed.

21- If recommended by the reunification therapist, the father shall be permitted to retain the individual counsellor of his choice for N.M., after having given the mother a reasonable opportunity to provide her views and input as to the choice of counsellor and having properly considered those views.

22- The father shall be permitted to take N.M. out of school not more than once per week, for up to two hours, for the purpose of taking him to appointments with the reunification therapist or his individual counsellor. If N.M. is not in school at the time one such appointment is scheduled (and in his mother’s care), the mother shall be responsible for taking N.M. to his appointment and the father shall be responsible to bring him back home to his mother. The mother shall be notified of any appointment that falls on her parenting time with N.M. at least seven (7) days in advance, in writing.

23- Neither party shall be permitted to terminate the reunification therapist’s services without leave of the court, unless the therapist confirms that in their professional opinion, their services are no longer needed.

24- Neither party is permitted to file a complaint against the reunification therapist or any individual counsellor retained by the father for N.M., to their Regulatory College or governing professional body without the court’s prior leave.

25- The parties are hereby refrained from discussing or sharing with family members and friends what happens in reunification therapy. Both parties shall take positive steps to prevent friends and family members from interfering in any way in the reunification process.

26- If recommended by the reunification therapist, the mother shall engage in individual counselling to address the concerns highlighted in this decision. The mother shall provide a copy of this decision and of Ms. Morinville’s parenting assessment to her therapist at the intake stage.

27- The mother shall provide the father, and file with the court, a certificate of completion of the New Ways for Families program within 15 days. If she has not completed it yet, she shall provide an affidavit explaining why that is.

28- The mother shall immediately enrol in the Parenting Through High Conflict Separation and Divorce program offered by the Ottawa Family Services (or an equivalent program offered elsewhere) and provide the father with her certificate of completion as soon as it is completed.

29- The costs associated to the reunification process (including the cost of the reunification therapist and of N.M.’ individual counsellor, if any) shall be a s. 7 expense to be shared in proportion to the parties’ income.

Decision-Making - Extracurricular Activities

30- The children shall each be enrolled in one sport and one skills program for each of the January-June and July-December periods, unless they agree otherwise. To the extent that a child is enrolled in a competitive sport which requires attendance at more than two events weekly, that child will not be enrolled in a skills program at the same time, unless both parents agree in writing.

31- Both parents shall endeavour to ensure the children attend any jointly agreed extracurricular activities scheduled during their respective parenting time. Neither party shall be required to contribute over and above the total amount of $1,500.00 per parent, per child, per season.

32- The parent in whose care the child is at any given time shall be given priority to attend the child’s extracurricular activity to the exclusion of the other parent (and the other parent’s extended family members) unless written permission is given.

33- Decisions as to which activities to enroll the children shall be made jointly and in sufficient time to ensure the children's enrolment. Should either parent fail to respond to a request for enrolment by 72 hours prior to the commencement of the enrolment period, the request for enrolment having been made at least one (1) week prior to the commencement of enrolment, the other parent may enroll the children in the sport/skill without the consent of the non-responding parent and that parent will be deemed to have given consent.

34- In the event of a dispute which cannot be solved by negotiation, and upon considering the other parent’s position and any supporting information he/she may have, the mother shall have the ability to make the final decision in the best interests of the children for the Fall/Winter and Spring/Summer activities taking place during the 2023/2024 school year (September 2023 to August 2024), and every other school year thereafter. The father shall have the ability to make the final decision in the best interests of the children for the Fall/Winter and Spring/Summer activities taking place during the 2024/2025 school year (September 2024 to August 2025), and every other year thereafter.

35- Should either parent wish to enroll any children in more extracurricular activities than one sport and one skill for each period above, the cost of any such activities shall be entirely the responsibility of the enrolling parent. The non-enrolling parent shall have no obligation to take the children to any additional activities in which they are enrolled on their parenting time.

36- The parties shall purchase only one set of equipment for each child’s extracurricular activity which shall travel between the parents’ home, unless they agree otherwise, and the cost of same shall be a s. 7 expense to be shared in proportion to income.

Decision-Making – Religion

37- Each parent shall decide what religious involvement the children have on their respective parenting times. If the children's schools request their participation in a religious ceremony, both parents shall consent to the children's involvement, shall support the child in any such ceremony and shall ensure their presence at the ceremony.

Decision-Making - Day-to-Day

38- The parent with whom the children are living at any given time shall be responsible for the day-to-day decisions involving the children, including meals, entertainment, and hygiene. The parent with whom the children are living is permitted to travel outside of the Ottawa-Gatineau area with the children so long as any travel does not interfere with the children's schooling.

Parenting Time – Regular Schedule

39- A.M. and C.M. shall split their time between the parties' residences equally on a week- on/week-off basis from a Monday pick-up after school until the next Monday's drop-off at school. This new parenting regime shall begin on the first weekend that the father has C.M. and A.M. in his care following the release of this decision (to be clear, for the father’s first parenting week he will have the children from Friday and for the next ten days – until the children are returned to their mother’s care for her parenting week on Monday morning).

40- N.M. will spend every other Tuesday evening with the father from 4:00 p.m. to 7:00 p.m., such visits to include supper, and every other Saturday from 9:00 a.m. to 7:00 p.m. (such visits to occur on the same Tuesday/weekend as A.M. and C.M. are in the father's care).

41- Until N.M. follows the same parenting schedule as his brothers, the mother shall ensure that N.M. leaves his cell phone at his mother’s home during his parenting time with his father and she shall not collect N.M. from the father's home during his parenting time. The mother shall drop off N.M. at his father’s home at the beginning of the father’s parenting time and the father shall be responsible to drop him off at his mother’s home at the end of his parenting time.

42- If N.M. has an extracurricular activity while he is in his father’s care, the father shall be responsible to take him to that activity, and the mother shall not attend the activity (nor her extended family members).

43- Parenting time between the father and N.M. shall increase in accordance with the following schedule as soon as a reunification counsellor has been retained by the father and has had an opportunity to meet with N.M. once per week for three (3) consecutive weeks, unless in consultation with the reunification counsellor the father decides that it would be in N.M.’ best interest to delay the commencement of this increased parenting schedule (or any part thereof):

a. N.M. will spend every Tuesday evening with the father from 4:00 p.m. to 7:00 p.m. (even when his brothers are not in the father’s care), such visits to include supper, and from Friday at 4:00 p.m. until Saturday at 7:00 p.m. (on the same weekend as A.M. and C.M. are in the father’s care).

b. Following six (6) weeks of this schedule, parenting time between the father and N.M. shall increase where weekend visits extend from Fridays at 4:00 p.m. until Sundays at 7:00 p.m., with Tuesday visits maintaining the same schedule.

c. Following one (1) month of this schedule, parenting time between the father and N.M. shall increase where weekend visits extend from Fridays at 4:00 p.m. until N.M.'s return to school on Monday mornings, Tuesday visits maintaining the same schedule.

d. Following one (1) month of this schedule, parenting time between the father and N.M. shall increase where weekend visits extend from Thursday at 4:00 p.m. until N.M.'s return to school on Monday mornings. Tuesday evening visits shall move to alternating weeks at this time and can be moved to a different day of the week if the parties agree in writing. Otherwise, it shall remain on Tuesday.

e. Following one (1) month of this schedule, parenting time between the father and N.M. shall increase where weekend visits extend from Wednesday at 4:00 p.m. until N.M.'s return to school on Monday mornings, in addition to a Tuesday evening visit on alternating weeks.

f. Following one (1) month of this schedule, parenting time between the father and N.M. shall increase where weekend visits extend from Tuesday at 4:00 p.m. until N.M.'s return to school on Monday mornings, and no longer include a mid-week visit on alternating weeks.

g. Following one (1) month of this schedule, parenting time between the father and N.M. shall increase where N.M. is on the same parenting schedule as A.M. and C.M..

h. At any time, if N.M. is comfortable to speed up the parenting schedule (as confirmed by the reunification counsellor), such increase in parenting time shall occur. However, N.M. shall not be asked to do so by his father.

44- Once N.M. follows the same parenting schedule as his brothers, he may be permitted to bring his cell phone to his father’s home during his parenting time with him, subject to the discretion of the father as to its use while in his care. The mother shall not be permitted to call N.M. on his cell phone, unless the father specifically agrees in writing.

Parenting Schedule - Holidays

45- The parties shall follow the regular parenting schedule during the summer holidays.

46- Beginning in the Summer of 2024, each parent shall be entitled to two consecutive weeks of summer vacation with the children. In even-numbered years the mother shall have first pick of consecutive weeks, to be communicated to the father no later than March 1st of the year, and the father to provide his selection by March 30th. In odd-numbered years the father shall have first pick of consecutive weeks, to be communicated to the mother no later than March 1st of the year, and the mother to make her selection by March 30th. A parent’s failure to confirm their selection, in writing, by the above date shall result in their having forfeited their right to have two consecutive weeks of summer vacation during the year in question.

47- The children shall never be in the care of one parent for more than two consecutive weeks, unless agreed to otherwise. In other words, when planning summer vacation weeks, the regular weekly schedule must fluctuate so that one parent does not end up having the children in their care for more than their two consecutive weeks of summer vacation.

48- Each parent shall be free to register the children in any summer camps during their weeks with the children. The cost of any summer camps chosen by the parent shall be borne by that parent alone.

49- The parent who has the children in his or her care during any of the following long weekends shall keep the children in his or her care until the children’s return to school on the Tuesday morning:

a. Family Day weekend;

b. Easter weekend;

c. Victoria Day weekend;

d. Labour Day weekend;

e. Thanksgiving weekend.

50- If not otherwise scheduled to be with her, the children shall spend Mother's Day with the mother from 10:00 a.m. until their return to school on Monday. If not otherwise scheduled to be with him, the children shall spend Father's Day with the father from 10:00 a.m. until their return to school on Monday.

51- The mother shall spend the first week of the children's Christmas break with the Children in odd-numbered years, with the father spending the second week of the children's Christmas break with the children. The children shall be exchanged at noon on the day which is the mid-point between the last day of school in December and the first day of school in January. The father shall spend the first week of the children's Christmas break with the children in even-numbered years, with the mother spending the second week of the children's Christmas break with the children.

52- For the 2023 Christmas Holidays only, if N.M. has not yet reached the level set out in subparagraph 43(c) above, he shall be in his father’s care from December 31, 2023, at noon until January 2, 2024, at noon.

53- Any other holiday, PD Day, child's birthday, or other day off school (including the school Spring Break) shall follow the regular parenting schedule. If a child misses school due to a snow day, illness, or other reason, it is the responsibility of the parent with whom the child is staying to arrange appropriate care.

54- The parent who has care of the children in any given week shall permit, encourage and facilitate one phone call between the children and the other parent mid-week (on the Thursday after dinner, unless the parties agree to another day).

Transportation and Exchanges

55- During the school year, the children shall be dropped off or picked up directly from school.

56- If there is no school on that day, for whatever reason, it is the responsibility of the parent who has the children in his or her care to drop off the children to the other parent’s home at the end of his or her parenting time. For example, if the mother’s parenting week ends on Monday morning (when the children were supposed to be dropped off at school) and the father’s parenting week begins on Monday afternoon (when he would have picked up the children from school), the children shall be dropped off at the father’s home by the mother by 4:00 p.m. on Monday (and vice versa).

57- The parent dropping off the children to the other parent’s home shall park on the street in front of the other parent’s driveway and remain in their vehicle at all times, except to assist a child in removing his belongings from the vehicle. The other parent shall remain in their home to receive the children.

58- In the summer and during holidays when there is no school, the parent whose parenting week ends shall be responsible for dropping the children off at the other parent’s home by 8:00 a.m. on Monday mornings, unless they both agree that it would be more practical for the exchange to occur on Sunday evenings during the summertime.

59- Neither parent shall bring extended family members with them at exchanges.

Communication and Parental Contact

60- The parties shall, unless in the event of an emergency, communicate exclusively through the software program Our Family Wizard. Both parents shall register to Our Family Wizard within 48 hours of receiving this decision. Each party shall be responsible for their own cost of obtaining an Our Family Wizard license.

61- The parents shall use the calendar function to share information in relation to appointments, school events, special extracurricular events or occasions, or any other important dates for the children.

62- The parents shall reconcile s.7 expenses through Our Family Wizard.

63- Unless the parents drop off or pick up the children at the beginning or end of their parenting time, they shall refrain from attending the other parent’s residence. Unless there is a special school event, a meeting between a parent and the school (such as during parent-teacher interviews) or an emergency, the parents shall refrain from attending the children’s schools on their non-residential weeks.

64- If the parties are both in attendance at school concerts, graduation ceremonies or other school events for the children, they shall make best efforts to keep their distance from each other and from each other’s family members.

Other Parenting Provisions

65- The mother will be responsible for holding the children's legal identification documents including their birth certificates, health cards, and passports, in odd numbered years and the father in even numbered years, with the documents being exchanged each year on the day the children transition from one parent’s home to the other’s during the Christmas Holidays. For example, the mother shall provide the children’s legal identification documents to the father when the children are exchanged on the day that is the mid-point between the last day of school in December and the first day of school in January, in December 2023. The father shall do the same in December 2024, and so on.

66- The mother shall, within 10 days of this order, provide the father with notarized copies of the children’s legal identification documents. When the original legal identification documents are exchanged in December each year, the receiving parent shall provide the other parent with the notarized copies they have in their possession for the other parent to hold.

67- The parent who holds the children’s original legal identification documents in any given year shall ensure that new identification documents are obtained if they are due to expire during the upcoming year and provide the other parent with a notarized copy upon receipt. The other parent shall cooperate promptly in signing any authorization or forms necessary to obtain these documents.

68- I shall be seized of this matter as the post-trial case management judge for a period of two years, for the purpose of ensuring compliance with the above parenting order and monitoring the reunification process between N.M. and his father.

[263] I feel it appropriate and necessary to be the one notifying N.M. of the decision I have made above. To that end, I have written a letter to N.M. which shall be shared with him by the reunification therapist to be retained by the father, in a child appropriate manner at his/her sole discretion. Neither party shall share the content of the decision I have made with N.M., other than to tell him that for the time being, he will continue to see his father on Tuesdays and Saturdays at the same time his brothers are in the father’s care.

[264] The issue of costs will be addressed in the second part of this decision, which will be released in the near future.

Madam Justice Julie Audet

Released: August 1, 2023

Dear N.M.,

I know you are aware of certain things about court and that you know that a judge is going to make a decision about the time you and your brothers spend with each of your parents. Well, I am “the judge” in this case.

I have listened very carefully to everything your mom and your dad had to tell me. I also listened to Dr. Sherman, Ms. Morinville and Ms. Gervais, as well as to all the people that have talked to you and heard from you and your brothers about your family since your parents separated. I have heard from your grandparents Cappon and also your godmother Justine. I don’t know exactly what people have told you about your mom or your dad, but I know that you are old enough to be aware that there is conflict between the adults in your family. I am very sorry that you were present when some of that conflict happened, and I am sorry that you have had to be questioned by so many people following your parents’ separation.

I want you to know that despite everything that has happened, both your parents love you very much, and want what is best for you. Your parents, grandparents, aunts and uncles also want you to be happy. While the adults in your life may not all get along with each other very well, this should not prevent you from having a good relationship with each one of them. You have the right to love and spend time with any one of these adults, even if your mom or your dad doesn’t get along with them very much. All the counsellors who have been involved in your life believe that despite everything that happened between you and your father, it is important for the two of you to have a good relationship. I know he loves you very much, and that he really misses you.

I know that right now, you have concerns about spending time with your father. This is why I feel that it is better that you and your parents work with a counsellor who will help you feel safe and comfortable with your dad. I have also asked both your parents to do quite a bit of work on their own to make this as easy as possible for you. I know your dad wants to rebuild his relationship with you very much, and this is why he keeps showing up for your visits with him, even when you don't want to stay long or say you don't want to go at all.

Many people who have met and talked to you have expressed concerns to me that you feel like you need to or are able to make the decision about whether you see your dad or not, or when you should end your visits with him. You should never feel like you need to make that decision. In fact, you should not be making that decision. This is not a burden that you should have to bear. These decisions need to be made by the adults who have what is best for you in mind. Your mom and dad have asked me to make that decision. N.M., I have decided that it is very important for you to see your dad more often, and to repair your relationship with him. I know your brothers enjoy the time they spend with your dad, and I don’t see why it should not be the same for you.

I have decided to have you stay at your dad’s for the entire visits that you are scheduled to be with him and your brothers. I have asked your mom to keep your cell phone with her during those visits because I don’t want you to have the burden of deciding when you should leave. In that way, you will be in the same position as your brothers; they don’t get to decide when they leave your mom’s house or when they leave your dad’s house. Once you have started to work with a counsellor, you will also start spending more time at your dad's house, including for some sleepovers.

I do not expect you to make any decisions about this N.M.. I only want you to feel free to enjoy your time with your dad, as you enjoy your time with your mom. I also want you to know that all the adults in your life are supportive of this, even if they don’t like or trust each other. I know all of them love you and your brothers very much. Even if they don’t always feel comfortable sharing this with you, your brothers enjoy going to your dad’s house and they do a lot of fun activities with him. It is my hope that with time you will to.

I am very interested in you N.M., and in how things will go for you in the next few months. So I will continue to work with your mom and dad and invite them to come back and see me after you and your parents have started to see a counsellor, and after you and your dad have spent a bit more time with each other. I very much hope to hear positive things about your time together and that your visits with him have improved. I wish you the very best and look forward to hearing about you further when this matter returns before me. I also hope you have a great hockey season this year.

Justice J. Audet

COURT FILE NO.: FC-20-235

DATE: 2023/08/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JULIAN MALONE

Applicant

– and –

NATASHA CAPPON

Respondent

TRIAL decision – PART ONE

Audet J.

Released: August 1, 2023

[^1]: This is what is reported on Ms. Morinville’s report. However, in his testimony the father stated that at that time he had the boys for dinner each week (after school, not including overnights) alternating between N.M. one week and the two younger boys the other week. Although I note this contradiction, nothing really turns on this.

[^2]: See “Protecting Custody Assessors from Vexatious Complaints By Losing Litigants to Regulatory Colleges”, unpublished paper completed in October, 2009 by Fay Brunning, B.A., LLB, Barbara Jo Fidler, Ph.D., AccFM, Robert Groves, Ph.D., C. Psych., Arthur Leonoff, Ph.D., C. Psych., FIPA, and Jane Murray, B.Sc., LLB.