Armstrong v Coupland, 2023 ONSC 5451

COURT FILE NO.: 404-21

DATE: 2023-09-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Derek Clifford Armstrong

Applicant

– and –

Amanda Elizabeth Coupland

Respondent

Applicant, Self-Represented

J. Swan, Counsel, for the Respondent

HEARD: February 10, 13, 14, 15, 16, 17, 2022 and March 6, 7 and 9, 2022

JUDGMENT

The honourable madam justice c. lafrenière

Matter before the Court

[1] This is my decision regarding the trial in this matter. I will identify the Applicant as the father and the Respondent as the mother in this decision.

[2] The father’s application is dated March 29, 2021. The mother’s answer is dated May 4, 2021.

Background and undisputed facts

[3] I find the undisputed and background facts are as follows:

a. The father’s date of birth is August 16, 1977;

b. The mother’s date of birth is May 6, 1987;

c. The parties never married;

d. There is one child of the relationship: Eliza Anne Marie Coupland, born May 8, 2019;

e. The mother has an older child, Cora Lynn Faith Little, born December 29, 2010, who is not a part of this proceeding;

f. The father has older children: Jack Armstrong, born in 2003 and Carter Armstrong, born in 2006. Jack is autistic. Jack and Carter live in Kirkland Lake with their mother, Melodie Trish McNaueal (“Trish”);

g. The father separated from Trish on March 9, 2016;

h. Jack and Carter have lived with their mother since their parents separated;

i. The father also has a stepdaughter, Jessica Young, who is almost 30 years of age;

j. The mother says the parties were in an “on-again/off-again” relationship from August 16, 2016 until May 5, 2019;

k. the father says their relationship was not “on-again/off-again” during the period when they were in a long-distance relationship;

l. The father relocated from Kirkland Lake to Hamilton and moved into the mother’s home in August 2018;

m. The parties lived together from August 2018 until a few days before Eliza’s birth on May 8, 2019;

n. The parties reconciled and were again in a relationship from February 21, 2020 until September 22, 2020;

o. The father maintained a separate residence from May 19, 2019 until September 22, 2020;

p. The father spent time at the mother’s home when they were trying to reconcile the relationship in the period from February 21, 2020 until September 22, 2020 when the parties ended their relationship on a final basis;

q. Eliza has resided primarily with the mother from birth and shared parenting time with the father on a supervised basis except for a few brief occasions when the parties were attempting to reconcile and a two-month period from mid-September until mid-December in 2021 pursuant to Justice MacLeod’s Temporary Order dated September 10, 2021;

r. At the time of trial, the father was having supervised parenting time at the Access Centre at the YWCA in Hamilton;

s. The father has been employed at Duke Electric for more than 10 years;

t. The mother has been employed at Canada Post since 2017;

u. The father was charged with driving under the influence (“DUI”) in February 2019 and in 2012 or 2013. The first charge resulted in a nine-month suspension of his driver’s licence and the second a suspension of about eighteen months;

v. The father is paying child support for Carter in the monthly amount of $400.00 pursuant to a Final Order dated April 2022 based on his 2021 income of $52,807.00. He is not paying child support for Jack any longer; and,

w. The father has an outstanding criminal charge of harassment against Trish in Kirkland Lake.

Temporary Orders

[4] Justice Donahue heard an urgent motion brought by the father April 8, 2021 Both parties were self-represented at that point. Justice Donahue made an interim interim without prejudice order providing that the father would have weekly supervised access through Brayden Supervision Services in the community. Justice Donahue ordered in person visits were to be three hours and if in person was not available due to the pandemic, the father was to have weekly virtual visits of 15 minutes in length. She also ordered that Eliza’s primary residence would be with the mother.

[5] The father brought a motion for parenting time which was triaged by Justice Pazaratz on April 27, 2021. Justice Pazaratz’ endorsement is set out below:

1. This matter came to me today for Triage pursuant to the Notices to the Profession issued by the Chief Justice on April 20, 2021, and by Regional Senior Justice Sweeny on April 22, 2021 (in relation to Central South Region).

2. The Applicant father submitted a Motion/Conference Triage Form, a copy of which is attached.

3. Based on the summary provided in that triage form I have determined that this matter does not meet the requirement for “urgency”, which governs which matters will be allowed to proceed during the COVID-related suspension of court operations.

4. I am mindful that this case involves important parenting issues, and those are always given priority in our family court system.

5. However, it would appear that after a lengthy gap, parenting time in relation to this young child was recently restored for the father pursuant to Justice Donohue’s temporary temporary without prejudice order of April 8, 2021.

6. While it is likely that parenting time will continue to evolve, the court system will not be able to address the next transition until the suspension of court operations has been lifted.

7. I recognize that there has been considerable conflict between the parents, and the delay in returning to the court will likely be frustrating for both the mother and the father. I would urge both parents to show flexibility and cooperation during these difficult times, for the sake of Eliza.

8. Our court system went through a similar suspension of operations last year. Parents who cooperated with one another during the suspension invariably made a good impression with judges once court operations resumed. Parents who were less cooperative during the shutdown generally found that once court resumed their credibility had been eroded.

[6] The father brought a motion seeking a finding of contempt and a motion for specified unsupervised parenting time (and in the alternative specified supervised parenting time). The motion for contempt was withdrawn on the day of the hearing, July 22, 2021. Justice Sweeny found the parenting time motion was not sufficiently urgent to proceed before a case conference (scheduled for August 24, 2021 at 10:00 am) and ordered the father to pay $1,500.00 in costs at the end of the litigation.

[7] The case conference was held by Justice Reid on August 24, 2021. The parties were able to resolve several issues on consent and Justice Reid made an order on consent, as follows:

a. Mr. Armstrong was declared to be Eliza’s father.

b. On a temporary without prejudice basis:

i. the mother would have decision-making authority for Eliza and primary residence of her;

ii. The mother to cooperate to update Eliza’s official records to reflect the order as to parentage;

iii. The parties to communicate through Appclose application; and,

iv. Father to pay child support of $315.00 monthly based on gross annual income of $36,078.00.

[8] The parties did not reach an agreement regarding the father’s parenting time.

[9] The father brought a motion for unsupervised parenting time returnable on September 10, 2021. Justice MacLeod granted an Order, on consent, providing that the father would have unsupervised parenting time Tuesdays and Thursdays from 4:00 pm to 7:00 pm and Sundays from 10:00 am to 2:00 pm.

[10] The order further provides all communication is through the AppClose application and is to be child focused and related to parenting Eliza only and that neither party is to speak negatively about the other in Eliza’s presence.

[11] Further, the father is prohibited from consuming alcohol or any illicit substances 12 hours before a visit and during the visit.

[12] In Justice MacLeod’s endorsement granting the order, he specifically endorsed that the parenting time schedule was to remain in place until the settlement conference scheduled for late December 2021 unless there were issues requiring the parenting time to be decreased.

[13] On December 10, 2021 Justice Chappel released a 28-page judgment setting out her reasons for dismissing the father’s motion and allowing the mother’s motion. The father’s motion was to increase his parenting time to every Monday and Wednesday from 4:00 pm to 7:00 pm and every weekend from Friday at 4:00 pm to Sunday at 4:00 pm. The father also sought parenting time during the Christmas holidays and the right to have Eliza in his care, if the mother was unable to care for the child during her parenting time.

[14] The mother sought an order varying Justice MacLeod’s order to provide the father’s parenting time is supervised by Thrive Counselling.

[15] Justice Chappel varied Justice MacLeod’s order to provide:

a. The father’s parenting time would be supervised by the Children’s Aid Society (“CAS”) if it consents to supervise and/or Thrive Counselling.

b. The parenting time was to be as accommodated by the CAS and/or Thrive but no more than twice a week for two hours per visit.

c. The father was prohibited from consuming alcohol or any illicit drugs during his parenting time and for a least 24 hours before the start of his parenting time.

d. All communications between the parties shall be through counsel or a third party agreed upon in writing. The father’s communications were subject to the following terms and conditions:

i. His comments shall be strictly limited to issues pertaining to the child;

ii. His messages shall be brief, informative and courteous;

iii. He shall refrain absolutely from making derogatory comments about counsel, any agreed upon third party and the mother and shall refrain from setting out personal opinions regarding their character.

[16] Justice Chappel provided that, if the father breached the communication provision, the mother could apply for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules.

[17] Justice Chappel found there had been material changes in circumstances relevant to Eliza since September 10, 2021 that warranted variation of Justice MacLeod’s order. Justice Chappel noted at the outset of her reasons that the CAS was in the midst of a child protection investigation at that time.

[18] I set out the paragraphs from Justice Chappel’s reasons for her decision because she carefully outlined the evidence before the court and set out why the father’s behaviour was not acceptable. Her reasons should have guided the father to moderate his behaviour. Unfortunately, they did not.

[19] Justice Chappel found at paragraphs [34] through [44] of her judgment:

[34] To begin with, I note that when MacLeod J. made his temporary order dated September 10, 2021, he clearly had concerns about the Applicant’s history of substance abuse and “combative” behaviour towards the Respondent. However, he felt based on the evidence before him that these concerns were not of such a severity as to justify supervision of the Applicant’s parenting time with Eliza. Nonetheless, because of those concerns, MacLeod J. stated that the parenting terms that he was ordering were to remain in place until at least the settlement conference in December 2021, barring any negative incidents that would warrant a decrease in the Applicant’s time with Eliza. Despite this clear direction, the Applicant has since September 10, 2021 demonstrated that he had no intention of abiding by the parenting time terms set out in the order made on that date, and has embarked upon a persistent, systematic campaign with the Respondent and her counsel to change those terms. The Applicant insists that there was an understanding by the end of the court appearance on September 10, 2021 that the parties would work towards an increase in his unsupervised time with Eliza leading up to the settlement conference. There is no evidence whatsoever in support of any such understanding. The endorsement of September 10, 2021 clearly reflects that there was no such intention, and that MacLeod J. would not have supported an increase in unsupervised parenting time without further judicial input on the issue after considering how the Applicant’s parenting time had gone. The Respondent strenuously argued in court on September 10, 2021 that the Applicant’s time with Eliza should be limited to professionally supervised parenting time. For the Applicant to suggest that the Respondent was supportive of a significant increase in his parenting time by the end of that court appearance is simply not plausible. The Applicant’s alleged misapprehension of the outcome of the September 10, 2021 court appearance raises serious concerns regarding either his credibility or his ability to process information clearly and to conduct himself appropriately in response to court orders.

[35] The Applicant’s behaviour in relation to his parenting time with Eliza since September 10, 2021 has wreaked havoc on the Respondent’s life and seriously impacted her ability to focus on caring for Eliza and her other daughter Cora. It has also placed an incredible strain on the Respondent’s counsel, Ms. Swan, in her efforts to represent the Respondent in this matter. Since shortly after September 10, 2021, the Applicant has bombarded the Respondent and Ms. Swan with regular requests, at least 2 to 3 times per week, to change the times for his visits, increase his parenting time, allow for overnight time and change the location of parenting time exchanges. He has typically made these requests on very short notice, has demanded a response by a specified time, and has threatened to simply take or keep Eliza in accordance with his requests in the absence of a response within his unilaterally set response time. Many of the requests have been made on a Friday evening before his Sunday visits. As part of this campaign to change the parenting terms of the existing order, he has relentlessly pressured the Respondent at the time of parenting exchanges to concede to his demands for increased parenting time and other changes to the existing order. This behaviour became progressively more frequent and assertive, to the point that the Applicant simply began to dictate changes to the September 10, 2021 order without regard for whether the Respondent consented or not. These persistent requests have caused the Respondent a great deal of distress and have disrupted her daily functioning and parenting. She became extremely anxious at parenting exchanges because of her expectation that the Respondent would pressure her in front of Eliza. In addition, she has had to frantically seek out her counsel, often over the weekend, to obtain advice and attempt to respond by the deadlines set by the Applicant for a reply to his demands. To her credit, she and Ms. Swan were generally able to respond on time, but at a huge personal toll as well as a professional one for Ms. Swan. On each occasion, Ms. Swan has asked the Applicant to confirm that he will abide by the terms of the September 10, 2021 order. Until November 19, 2021, the Applicant reluctantly agreed to abide by the order. However, on Friday November 19, 2021, he sent several emails to Ms. Swan, stating that on a go-forward basis, commencing November 21, 2021, he would be keeping Eliza every week from Sunday at 10:00 a.m. until Thursday at 7:00 p.m., regardless of the Respondent’s consent. He also sent a text message to the Respondent’s best friend, Rachel Chabot, on November 21, 2021 before his scheduled visit began, stating that he would be keeping Eliza in his care every week from Sunday morning until Thursday evening. Ms. Swan advised the Applicant that the Respondent did not agree with this plan, and asked him once again to confirm that he would abide by the terms of the September 10, 2021 order and return Eliza to the Respondent’s care after his visit on November 21, 2021, at 2:00 p.m. He did not commit to doing so.

[36] I summarize the evidence in support of the above-noted concerns in greater detail below. However, I note that in addition to those concerns, the Applicant has since September 10, 2021 demonstrated extremely poor impulse control and a general sense of dysregulation in his communications with Ms. Swan and the Respondent about issues pertaining to Page: 17 Eliza. The communications demonstrate a pattern of him being conciliatory at first when making requests, but then quickly becoming disrespectful and belligerent when things do not go as he wishes. In these communications, he has been demanding, has launched insults against Ms. Swan and the Respondent, has accused the Respondent of alienating him from Eliza and Ms. Swan of being an accessory to this alleged alienation, and has threatened to report Ms. Swan to the Law Society of Ontario for alleged professional misconduct. At times, these communications have occurred late at night and he has sent several messages in succession. Many of the communications have been rambling in nature and very difficult to comprehend. The Applicant’s Reply affidavit filed on this motion was similarly prolix in nature and difficult to follow. In addition, the Applicant’s notes about his visits with Eliza reflect that he had no intention of ever abiding by the parenting terms of the September 10, 2021 order, and that he has a very negative view of the Respondent as a person and a parent.

[37] The details respecting the concerns described above are as follows:

1. On September 16, 2021, only 6 days after the existing order was made, the Applicant sent Ms. Swan a convoluted, 8 page email requesting a significant expansion of his parenting time leading up to the settlement conference in December 2021, for parenting exchanges to occur at the parties’ homes rather than the MacDonald’s, and for makeup time for missed visits. He also indicated that he would be recording all parenting time exchanges using a dashcam, and he set out a complex proposal for how the parties should discuss issues respecting Eliza. The Applicant also set out specific deadlines for when he expected to receive responses to each aspect of his proposal. He commented that he felt this significant expansion of his parenting time aligned with the order made on September 10, 2021, and that he would therefore be bringing a motion to seek an order in accordance with his proposed schedule if the Respondent did not commit to abide by it by October 31, 2021.

2. A week later, on September 23, 2021, the Applicant commented in a note that he made about his visit that day that the Respondent was reluctant to speak to him at the parenting exchange when he wanted to talk about his visit and his parenting time. He also indicated that Ms. Swan had sent him a letter regarding his proposal, and that the Respondent was “not interested in helping to reintegrate me into Eliza’s life.” He stated that he would try again the next day to garner the Respondent’s cooperation through her lawyer, “but I think I’m going to need to file another Motion.”

3. In his note respecting the visit on September 28, 2021, the Applicant commented that Eliza has made comments that suggest that she is being “programmed by the Couplands,” that the child Cora is likely involved in this programming, and that he attempts to engage Eliza in discussion about this during visits to see the full extent of this alleged behaviour. He notes that he is a pillar of stability for Eliza “amidst the craziness that she’s exposed to at her mom’s.” In addition, he comments that another motion will be required to get this “craziness” to stop, but that he would try one last time to get the Respondent to be more reasonable.

4. His note regarding the visit on September 30, 2021 indicates that he pressed the Respondent for additional parenting time for Thanksgiving weekend during the parenting exchange, despite the fact that Ms. Swan had already addressed his request for additional time. This clearly caused the Respondent stress, as the note indicates that she swore at him in response to the request and told him to just get Eliza out of the car. The Applicant added at the end of his note that Eliza wants more time with him, and “I’m going to get it for her. Simple as that.”

5. The Applicant indicated in his note respecting the visit on October 3, 2021 that he again asked the Respondent about more time for Thanksgiving at the parenting time exchange that day.

6. On October 5, 2021, the Applicant sent Ms. Swan and the Respondent an email complaining that she and the Respondent had not responded to his proposal for expanded parenting time, other than to refuse to respect Eliza’s best interests and to ignore the directions given by MacLeod J. at the hearing of the motion on September 10, 2021 regarding more parenting time for him. He noted that he had attempted to talk to the Respondent at parenting exchanges about Thanksgiving weekend, but described her as “Oppositional and Defiant, as though she’s been inflicted by some sort of disorder.” He suggested that the Respondent was using Eliza as “a pawn in her affectation,” and that perhaps she needed counselling. Ms. Swan responded promptly on October 6, 2021, asking what the Applicant was proposing for Thanksgiving weekend. She also requested that the Applicant cease insulting the Respondent in his communications, since this did not assist in the negotiation process. In his response on October 6, 2021, the Applicant again referred to the Respondent as “Oppositional and Defiant,” and asked for an overnight visit with Eliza and that the location for parenting exchanges be changed. Before Ms. Swan was able to respond, he sent another email on October 8, 2021 demanding a response by the end of the day, failing which he would simply make a decision on his own.

7. On Saturday October 23, 2021 at 9:17 p.m., the Applicant sent Ms. Swan and the Respondent an email declaring that commencing with his visit the next day, Sunday October 24, 2021, he would be keeping Eliza until 8:00 p.m. on Sundays rather than the court-ordered time of 2:00 p.m. and he would be doing the parenting exchange at an address in Stoney Creek rather than the MacDonald’s stipulated in the court order. He asserted that he would be returning the child to the Respondent on Sunday October 31, 2021 at her home, rather than the MacDonald’s, and at 6:00 p.m. rather than the court-ordered time of 2:00 p.m. Furthermore, he stated that upon returning the child to the Respondent on that day, he would be going “trick or treating” with them in the Respondent’s neighbourhood. Finally, the Applicant dictated that for his visit commencing November 7, 2021, he would be keeping the child until the following Thursday November 11, 2021. In this email, he stated that the only other option was for the Respondent to continue to abuse Eliza by alienating her from him, and that this alienation was established at the court appearance on September 10, 2021. In response to this email, the Respondent was compelled to contact her counsel on an urgent basis over the weekend. Ms. Swan sent an urgent email to the Applicant asking him to confirm that he would adhere to the terms of the September 10, 2021 order, failing which the Respondent would not be bringing Eliza for the visit the next day. The Applicant responded on October 24, 2021, stating that he would comply. However, in that email, he accused Ms. Swan of supporting family conflict, accused both her and the Respondent of failing to abide by MacLeod J.’s direction that they promote a meaningful relationship between him and Eliza, asserted that the Respondent was abusing Eliza by keeping her from the court-ordered parenting time with him and that Ms. Swan was enabling that abuse, and accused Ms. Swan of using threats and ultimatums against Eliza to gain control over him.

8. On Friday November 5, 2021 at 4:48 p.m., the Applicant sent Ms. Swan and the Respondent another email requesting additional time with Eliza starting the next day, Saturday November 6, 2021 at 1:00 p.m., until Sunday November 7, 2021 at 7:00 p.m. He stated that he would be attending the Respondent’s home rather than the MacDonald’s at 1:00 p.m. unless he heard back that this was not acceptable. Again, this email sent the Respondent and her counsel into urgent reaction mode over the weekend.

9. On November 8, 2021 at 8:48 p.m., the Applicant sent Ms. Swan and the Respondent another email asking that his visit on Thursday November 11, 2021 commence at 10:00 a.m. rather than the court-ordered time of 4:00 p.m., so that he could take Eliza to a Remembrance Day celebration at the Stoney Creek Cenotaph. He noted that Remembrance Day is a very solemn occasion in his family, and that he would like to start Eliza “on the path of reverence for this occasion as I know that your client is indifferent to the reverence of our fallen family members.” Although Eliza is only 2 years of age, the Applicant expressed that Eliza should begin to participate in this celebration so that she could develop a sense of “what is important to her kin from both sides of her lineage.” He demanded that the Respondent advise him of her position the next day at the parenting exchange, failing which he would simply proceed with his plan and pick the child up at the Respondent’s home, rather than the MacDonald’s, on November 11th at 1:00 p.m. He asked Ms. Swan to finally encourage the Respondent to be amicable. His comments in this email were disjointed, aggressive, intimidating and threatening in nature and tone. He stated as follows: I look forward to beginning a more friendly relationship with your client. It’s what Eliza wants right? Right? Right? Just kidding. I know what she wants. She told me so. You could never know my Sweet Beautiful Amazing Wonderful Lovely Smarty Pants Bimpy Gurl like I do. Have you even met her? With all due respect. Get your client to be agreeable soon. I promise that you’ll get all of that hurt that you’re creating in Eliza’s life from your support of this animosity back on you somehow by karma. Could you please send me your goddamned LSUC #. I’ve only been asking for it for a fifth of Eliza’s life. It seems like you don’t want me to make a complaint against you disrespecting the legislated changes. Have you had others? Are there many more? Remember when I asked you for the respect that you would show to your professional peers in the spring. Yeah. Here we are! The Applicant then accused Ms. Swan of not sharing all of his messages with the Respondent and stated: “I hope that you understand that I wish for you to exit Eliza’s life forthwith. You’re a blight on hers and Amanda’s existence that will be eradicated next time we’re in court if I have my way. That’s my hope. Please stop taking advantage of your client’s anxiety issues to pad your bank account. It’s pretty despicable even for you. Despite being against the law. The Applicant also stated in this email that he would not be using “that bullshit app” any longer, referring to the AppClose app that he is required to use pursuant to the September 10, 2021 order, and stated that his agreement to anything that he was forced to accept was very tenuous.

10. Despite the caustic nature of the Applicant’s email on November 8, 2021, Ms. Swan responded calmly and respectfully on November 9, 2021 a 10:47 a.m., asking him once again to stop sending threatening correspondence. She noted that he was making on average 2 to 3 requests each week to change the existing order. Nonetheless, she noted that he had not set out a clear proposal for November 11th, since he had not specified when he wished to return Eliza to the Respondent’s care. She asked him to clarify this point so that she could seek instructions about his request from the Respondent. The Applicant’s response was once again disrespectful and malicious in nature. He denied having been threatening in his email and accused the Respondent of not complying with certain aspects of previous orders. He did not provide a suggestion for an end time to the November 11th visit. Instead, he made the following discourteous comments: In plain English. If I don’t hear from your client tonight in person that she desires to prevent Eliza spending the day with me on Thursday then I will show up at her home to pick Eliza up at 10:00 a.m. on Thursday November 11, 2021 as I will consider that she is in agreement of such by her lack of disapproval. Should you require it I can translate that to French or Spanish for you or I can recommend an excellent ESL course for you to help with your reading comprehension skills. The Applicant went on to suggest that Ms. Swan and the Respondent were defying MacLeod J.’s directions to permit a meaningful relationship between him and Eliza by not conceding with his requests. He then made the following comments about Ms. Swan: Please stop using Eliza and your client as a means to get vengeance on me because Justice MacLeod made you look like a fool I court [stet]. It’s unprofessional and despicable. Please stop preying on Ms. Coupland’s severe anxiety and encourage her to be more peaceful as Justice MacLeod encouraged you to do in our last hearing.

11. The Applicant’s communications became even more concerning on November 10, 2021. On that evening, commencing at 8:06 p.m., he sent six separate emails to Ms. Swan and the Respondent. The first two were identical. In those emails, he accused Ms. Swan again of taking advantage of the Respondent’s alleged anxieties, and claimed that after December 1st, he would reach agreement with the Respondent about his parenting time regardless of how hard it was for Ms. Swan to gain her cooperation. The clear message was that he intended to start exerting increased pressure on the Respondent directly to cave into his demands for more parenting time with Eliza. He announced that he was “done” with being patient, and that he would soon be making decisions for Eliza that did not include the Respondent’s agreement. He accused Ms. Swan of attempting to bankrupt him and asserted “Please provide me with a valid reason why Eliza can’t spend the night with me by Thursday November 11, 2021 at 4:00 p.m. or that’s what she’ll be doing until Sunday. Seriously, are you’re [stet] done helping your client hurt my child, or not, your choice JSwan.” He alleged that communication, expectations and contact between him and the Respondent were being impeded by Ms. Swan’s presence and accused Ms. Swan once again of being involved simply for financial gain. He reiterated that MacLeod J. had made Swan “look like an idiot,” and added as follows: Is that all Eliza’s well being is worth to you. A paycheck. I’m sorry that you’re barren but that doesn’t mean that Eliza has to suffer because you had a verbal tongue lashing from a judge during one of our interactions about her. Do you really want to progress this any further. I can dig deeper.

12. In his third email dated November 10, 2021, the Applicant stated as follows: Just so that you know, I’m now devoted to making sure that you, personally, cannot hurt any more kids like you’re hurting Eliza. You’re my next project. This is the last communication the you [stet] will receive from me. I am no longer in agreement with the bullshit that is hurting Eliza.

13. In a further email to Ms. Swan and the Respondent on November 19, 2021 at 9:19 p.m., the Applicant continued to berate Ms. Swan and the Respondent and to accuse them of abusing Eliza by not complying with his demands. The Applicant appears to have become increasingly dysregulated by this point, as there are many typographical errors in his email. He accused Ms. Swan again of taking advantage of the Respondent’s alleged anxiety, told her to “grow up,” once again called her “a blight on Family Law,” and suggested that she “pivot to Injury Law dur [stet] to your penchant for hurting children.”

14. In his final message dated November 10, 2021, at 10:04 p.m., the Applicant believed that he could no longer email Ms. Swan directly and therefore directed the message solely to the Respondent. He continued to berate the Respondent for not conceding to his demands and stated “Does Eliza keep remembering that her daddy is a piece of shit how you would have it or does Eliza get to enjoy a life with her daddy… You’re a bit bad mother. Maybe you can let go of the bad ideology that your mother and sister and the system made you think was normal so that Eliza can have a normal life like all of her friends in grade 3. Or 4. Or 5. Or 6. Are you a monster or not. I’m waiting to find out.”

15. The Respondent allowed the Applicant to have his scheduled visit with Eliza on Sunday November 14, 2021, despite the concerning nature of the emails of November 9, 2021. As I have indicted, he claims that the Respondent attended the parenting exchange late on that day, and that she appeared to be intoxicated when she brought Eliza from her vehicle. The Respondent adamantly denies that she was intoxicated. She states that she and Eliza had had a very bad night because Eliza could not sleep, and that she had therefore messaged the Applicant to ask that the visit start and end later so that they could get some rest. She also claims that the Applicant again pressured her at the time of the exchange to have more parenting time, and that he called her a “dumb twat” when she told him that she was not comfortable having that discussion. There is no independent evidence to substantiate the Applicant’s concerns that the Respondent was intoxicated on November 14, 2021, and I note that the Applicant did not make a report to either the police or the Society to relay his concerns. Significantly, he claimed that there was a video of the Respondent stumbling across the parking lot towards her car, but he has not produced any such video. However, on November 19, 2021, he again sent several messages to Ms. Swan and the Respondent, this time after midnight, setting out his alleged concerns relating to the Respondent’s presentation on November 14, 2021 for the first time. He relied on those alleged concerns to dictate that commencing on Sunday November 21, 2021, he would be keeping Eliza in his care every week from Sunday at 10:00 a.m. until Thursday evening at 7:00 p.m. He stated that he was no longer in agreement that the current court-ordered parenting terms were providing the “meaningful relationship” that Justice MacLeod intended for Eliza, and relayed information about the daycare arrangements that he had made for Eliza during his planned extended parenting time with her. He acknowledged that he had confronted the Respondent about being intoxicated on November 14, 2021 at the parenting exchange on November 19, 2021, and that he had been pressuring her during exchanges to have extended overnight parenting time. He suggested that the Respondent needed to make Eliza a priority “over her leisure, work, attitude, wants and wishes for herself,” and that her misguided views of him were based on her own anxieties. He added that Eliza would “enjoy a level of consistency that she has rarely had with your client since I left her abuse and will be introduced to being an integral member of a social society as children should be at her age.” He suggested that the Respondent would be permitted to see Eliza during his time provided that she “gets acquainted with Eliza’s real needs and wants.”

16. On November 21, 2021, the Applicant also sent a text message to the Respondent’s best friend, Rachel Chabot, reiterating his intention to keep Eliza from Sunday morning until Thursday evening going forward, and threatening that the Respondent would lose Eliza “if she doesn’t smarten up really fucking fast.”

[38] As I have previously noted, the Applicant did not respond to a request from Ms. Swan for confirmation that he would abide by the court order after his emails of November 19, 2021, and therefore the Respondent has not made Eliza available for parenting time since that date. Ms. Swan advised the Applicant in correspondence dated November 23, 2021 that she would be bringing a motion seeking to change his parenting time to supervised visits only.

[39] The Applicant’s conduct since September 10, 2021 in relation to his parenting time and his communications to Ms. Swan and the Respondent constitute family violence within the meaning of section 18(1) of the Children’s Law Reform Act. The communications have often been inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards Ms. Swan, they have been sent to the Respondent as well and have been clearly designed to destroy a solicitor client relationship that the Respondent considers to be critical to ensure the safety and wellbeing of herself and her two children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the Respondent. The Applicant has also been demanding and coercive with the Respondent during parenting time exchanges and has referred to her in derogatory terms in the presence of Eliza since September 10, 2021. All of this behaviour has been extremely destabilizing for the Respondent and in turn, for Eliza. The Respondent has been fearful during every visit that the Applicant would not return Eliza to her care, and she has found the parenting time exchanges to be extremely nerve-wracking. Her concerns respecting the Respondent’s mental health and abusive conduct have been so significant that she has taken time off work and is residing with family members in an attempt to cope with the situation.

[40] Unfortunately, the Applicant’s inappropriate conduct since September 2021 is not isolated in nature; the evidence indicates that the Applicant has a long-standing history of engaging in family violence. As I have discussed, the Respondent states that he has been emotionally and verbally abusive and controlling towards her throughout their relationship and since the separation. She has provided a detailed description of two occasions, in 2019 and 2020, when he exhibited extremely violent and frightening behaviour in the presence of the children Cora and Eliza. He has been verbally abusive towards Cora, and the evidence indicates that he was also verbally abusive towards his older special needs son. The child Eliza would have been very seriously harmed in September 2020 if the Respondent had not intervened during the incident between the parties to prevent the stroller from toppling over.

[41] The evidence before me raises serious concerns that the Respondent is either suffering from significant mental health difficulties or experiencing ongoing problems with substance abuse. The Respondent’s evidence respecting his history of significant substance abuse problems, associated with volatile and aggressive behaviour, is very credible, particularly given that he has been convicted of two charges of impaired driving. It appears that he has only recently had his driver’s licence reinstated, and that he can only drive his vehicle if he tests negative for alcohol on a breathalyzer machine.

[42] The Applicant does not acknowledge any of the concerns outlined above. There is no evidence that he has engaged in any counselling or consistent, long-term substance abuse treatment and relapse prevention services, or that he recognizes a need to do so. He denies having ever subjected or exposed Eliza to any abuse, and he claims that there have been no concerns about his parenting time with her since September 2021. There is no independent evidence about how those visits have gone, but significantly, the Respondent states that Eliza has begun to exhibit uncharacteristic violent behaviour since the visits began, including a recent incident when she kicked the family cat. The Applicant admits that he is a “difficult and cantankerous” person, as MacLeod J. described him in his endorsement of September 10, 2021, but he claims that his conduct has been justified based on his concerns about the Respondent. First, as discussed above, he alleged that the Respondent was intoxicated at the parenting exchange on November 14, 2021. The Respondent had a credible explanation for her presentation that day, and there is no independent evidence to corroborate the Applicant’s allegation. Furthermore, there is no evidence that the Respondent has a history of inappropriate alcohol use. The Applicant also alleged on November 10, 2021 that the Respondent had used cocaine the previous weekend, without providing any proof whatsoever in support of this serious allegation. The Applicant further claims that the Respondent has engaged in a mission to alienate him from Eliza, and that his conduct is attributable to his frustration with this alleged alienating behaviour. He also accuses Ms. Swan of being complicit in this alienation by representing the Respondent in this proceeding. I do not accept his claims of alienating behaviour by the Respondent. The material before me supports a finding that the Respondent has had very legitimate concerns about the Applicant’s substance abuse, mental health, abusive conduct and unpredictable violent outbursts throughout the parties’ relationship and since their separation. The Applicant’s inappropriate conduct has been directed not only towards the Respondent but also to third parties, including Ms. Swan and the staff of Brayden. Despite these concerns, the Respondent has made numerous attempts during previous separations and since the parties’ final separation in September 2020 to ensure that the Applicant maintains a meaningful relationship with Eliza. She initially facilitated parenting time in her presence, despite the history of family violence and the stress that ongoing contact with the Applicant caused her. She agreed to parenting time supervised by Brayden, but the Applicant completely sabotaged efforts by that agency to serve him and the child. Since September 10, 2021, she has attempted to work cooperatively with the Applicant to accommodate some of his parenting time requests, only to be met with aggressive and vitriolic responses. She continued to permit the Applicant to have his parenting time until November 21, 2021 despite his numerous threats to keep Eliza from her at the end of his time. Notwithstanding her ongoing serious concerns, she has proposed supervised parenting time in her cross motion rather than requesting a cessation of contact altogether. The Respondent’s conduct towards the Applicant in regard to parenting matters has in my view been beyond reproach.

[43] By way of summery, having carefully considered all of the evidence and the concerns described above, I conclude that it is in Eliza’s best interests that the Applicant’s parenting time be limited to visits supervised by either Thrive Counselling or the Society if it consents to providing supervision, and no more than twice per week for two hours. The attempt to implement unsupervised parenting time has enabled the Applicant to perpetuate his history of family violence against the Respondent. It has caused a great deal of distress and disruption for Eliza’s primary caregiver, which has in turn been detrimental to Eliza’s overall well-being and stability. Eliza has been showing signs of emotional distress since the unsupervised visits began in the form of violent behaviour that she never exhibited in the past. There are in my view very significant concerns about either the Applicant’s mental health or ongoing substance abuse issues. He presents as incapable of regulating his emotions and reactions appropriately on a consistent basis. In the past, he has insisted that there is no need for him to refrain from consuming alcohol or marijuana while in a care-giving role. He has a history of violence and emotional and verbal abuse towards family members when he is intoxicated. Given his negative view of the Respondent and the numerous derogatory comments that he has made about her in the email communications and his personal notes since September 2021, there are very serious concerns that he would make negative comments about the Respondent to the child during unsupervised visits. He cannot be trusted to abide by a court order permitting him unsupervised time or to return Eliza to the Respondent at the end of his parenting periods. In addition, he has begun to make very serious unsubstantiated allegations of substance abuse by the Respondent. He does not acknowledge any of these concerns and has not demonstrated a willingness to engage in services to resolve them. Having regard for all of these concerns, the Applicant simply cannot be trusted to have unsupervised parenting time with Eliza in a manner that supports her safety and wellbeing. Moreover, I conclude that the supervision must be either by the Society, if it consents, or a professional supervision service or agency. Neither the Respondent nor Brayden have been able to manage the Applicant’s controlling, coercive and disruptive behaviour in relation to parenting time, and therefore I conclude that supervision by a family member or another member of the community would simply result in severe stress for that person and more challenges and chaos for this family. In fact, given the present state of affairs, I have serious reservations as to the ability of any supervised parenting time agency to manage the Applicant’s behaviour and demands more successfully than Brayden. Time will tell whether these reservations are well-founded, and it is my sincere hope that the Applicant will be more cooperative this time around with respect to the supervision services that are implemented.

[44] I have considered the Respondent’s request for a restraining order. She bases this request on the concerns respecting family violence and her claim that the Applicant has been driving past her home and the residence of the maternal grandmother, who cares for Eliza while the Respondent works. The evidence does not satisfy me that the Applicant has engaged in stalking behaviour in the vicinity of the two residences. He acknowledges having driven by the residences on November 21, 2021 in an attempt to locate Eliza, and on one other occasion in front of the Respondent’s home. Given that I am ordering supervised parenting time, there will be no need for the parties to have face to face contact, and this will alleviate some of the concerns respecting the Applicant’s abusive conduct towards the Respondent. I am of the view that the remainder of the concerns can be addressed at this point by way of a general order prohibiting the Applicant from being within 100 meters of the Respondent’s place of residence, her place of work and the home of the maternal grandmother Faith Coupland, and requiring that any communications between the parties be either through counsel or a third party agreed to in advance in writing between the parties. I am including terms in my order aimed at ensuring that the Applicant’s communications with counsel are civil. I am also ordering that if the Applicant breaches these terms regarding communication, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules. I emphasize that if the Applicant does not comply with these terms, or if he engages in any further type of intimidating conduct towards the Respondent, then the Respondent may to apply to this court any day of the week on an urgent basis to renew her request for a police enforced restraining order.

[20] The evidence carefully reviewed by Justice Chappel was presented at the trial before me.

[21] Despite the warning afforded to the father by Justice Chappel’s reasons and Order, the father did not abide by the terms of her Order and the mother returned the matter to court as Justice Chappel provided due the father’s breach of the Order.

[22] On February 11, 2022 Justice Gordon found the father to have breached the communication provision of Justice Chappel’s order twenty-five times and awarded costs of $5,000.00 for the breaches and $500.00 in costs for the motion.

[23] On June 2, 2022, Justice Bale granted the mother’s request for a restraining order. The father brought a motion with respect to his parenting time also returnable before Justice Bale.

[24] Justice Bale reviewed the evidence before her and provided the following reasons:

[3] The Applicant father’s Notice of Motion seeks a complete overhaul of the current parenting terms provided for in the Temporary Order of the Honourable Mme. Justice D. Chappel, dated December 13, 2021, including approximately 20 claims for substantive relief. During argument the Applicant appropriately re-focussed his position to request variation of paragraph 2 of the Temporary Order of Justice Chappel to request that his supervised parenting time take place at Dalhousie Place in Brantford, Ontario.

[4] The Respondent mother is opposed to a variation of the order. In essence, she asserts that supervision is no longer possible through Thrive Counselling, solely as a result of the Applicant father’s behavioural issues. She does not wish to be inconvenienced by travel to distant supervision centres, when the father’s poor conduct is the cause of the family’s inability to use local services.

[5] Further, the Respondent mother seeks to renew her request for a restraining order which prevents the Applicant from contact and communication with the Respondent, and from attending at her place of residence, employment, the home of her mother, and her counsel’s law office. She asserts that the father’s intimidating conduct has not improved, as optimistically contemplated within the decision of Chappel J., and she continues to fear for her safety and for the safety of her family. The Respondent also seeks an order preventing the Applicant from bringing further motions without leave of the court. The Applicant is opposed to these requests.

[6] A detailed review of the relevant background in this matter is contained within the judgment of Justice Chappel dated December 13, 2021 and will not be repeated. The following information however is highlighted for purposes of these motions:

a. The parties have one child together, namely Eliza Coupland, born May 8, 2019. Eliza is now 3 years of age.

b. The parties separated for a final time on September 22, 2020.

c. The Children’s Aid Society of Hamilton has had past involvement with this family.

d. On April 8, 2021 a Temporary Without Prejudice Order was made by Justice M. Donohue, wherein the Applicant father was granted weekly parenting time with the child, to be supervised through Brayden Supervision Services.

e. The father enjoyed supervised parenting visits on 8 occasions between April 2021 until August 2021. Brayden Supervision Services declined to provide further services to this family a result of issues arising in their dealings with the Applicant father.

f. On September 10, 2021 a Temporary Order was made by Justice R. MacLeod, permitting unsupervised parenting time between the Applicant and Eliza on Tuesdays, Thursdays and Sundays.

g. On December 13, 2021 the terms of Justice MacLeod’s Temporary Order were varied by the subsequent Temporary Order of Justice D. Chappel. The Applicant’s parenting time with Eliza was again ordered to be supervised – this time through either Thrive Counselling or through the Children’s Aid 3 Society of Hamilton for a period of up to two hours, twice weekly. Further, in an attempt to manage the Applicant’s behaviours, the court placed restrictions on the Applicant’s attendance at the mother’s home and work, and the maternal grandmother’s home, and on written communications between the Applicant and the Respondent and her counsel. The court ordered that for each breach of these restrictions the Respondent mother could apply for an order of costs, pursuant to Rule 1(8)(a) of the Family Law Rules. h. On February 11, 2022 the matter returned to court, this time before Justice D. Gordon. The mother was granted costs of $5,000.00 for approximately 25 breaches of the terms of the Temporary Order of Justice Chappel.

ANALYSIS

[7] As was explained to the Applicant during the conduct of the motion, the starting point for analysis on these motions is the December 13, 2021 Temporary Order of Justice Chappel. That is, the judgment of Justice Chappel is presumptively correct, and this court cannot go behind that order nor question the correctness of the terms imposed. A. Issue #1: Variation of Parenting Terms

[8] The applicable law as it pertains to the father’s request for variation of parenting terms was thoroughly and ably laid out for the parties in paragraphs 18-27, and 29-32 of Justice Chappel’s December 13, 2021 decision in this matter: 2021 ONSC 8186. I would add to this review of the law, that although the legislation does not set out a specific test with respect to varying an interim order, the change must be one that results in a compelling reason to vary the previous order: see Radojevic v. Radojevic, 2020 ONSC 5868, at para. 26. Specifically, in requesting a temporary change to the existing terms of a Temporary Order, the moving party faces a strong onus to produce cogent and compelling evidence in favour of a change in the child’s best interests.

[9] I have thoroughly reviewed Justice Chappel’s Reason’s for Judgment dated December 13, 2021 and note the following:

a. The court found that the father’s conduct from September 10, 2021 to the date of the motion, and in particular his communications with the Respondent directly and through her counsel, constituted family violence within the meaning of s. 18(1) of the Children’s Law Reform Act.

b. The court was specifically concerned that the father’s volatile behaviour might be as a result of significant mental health issues or ongoing problems with substance abuse.

c. The father did not acknowledge any wrongdoing or real concerns pertaining to his actions or conduct and was focussed upon the role of the Respondent and her counsel in the conflict.

[10] After thorough consideration of the motion before her, Justice Chappel specifically concluded that “it is clearly in Eliza’s best interests that the Applicant’s parenting time with her be supervised by a professional agency (italics added) until the Applicant accesses services to address the concerns regarding his well-being and behaviour and demonstrates progress in addressing those concerns”. On this basis, the December 13, 2021 Temporary Order provided that the father shall have parenting time with Eliza, supervised by the Children’s Aid Society of Hamilton if they consent to supervise and/or through Thrive Counselling. Parenting time was to be no more than twice per week for two hours on each occasion.

[11] On this variation motion the Applicant was urged to focus his submissions on explaining to the court ‘what has changed’ since the December 2021 Order of Justice Chappel, that would justify a variation of the parenting terms in the best interests of Eliza, rather than attempting to relitigate the issues and repeating to the court his opinion as to why Justice Chappel was incorrect in her decision. He thereafter was able to focus his attention on the difficulties that have arisen in arranging supervised parenting time through a professional agency.

[12] First, the parties agree that the Hamilton Children’s Aid Society did not consent to supervising the father’s parenting time. Second, it is clear that on January 20, 2022, a Coordinator with the Thrive Counselling Family Visiting Program advised, in writing, that they would not be proceeding with processing the family’s application for supervision through the agency: recent communications with the father led them to conclude that he would have difficulty cooperating respectfully in the program, a basic requirement for the provision of services. 1 It appears that a very unproductive telephone conversation took place between the father and the Thrive program coordinator which led to this decision. As a result of these circumstances, the Applicant father has now not seen the child since November 2021.

[13] I am satisfied that the Children’s Aid Society’s decision not to assist with supervision, and the administrative decision at Thrive Counselling not to provide supervisory services for this family, is a material change of circumstances. In a footnote Justice Bale noted that a similar issue arose in relation to the provision of services to this family by Brayden Supervision Services as per the correspondence of D. Sliwinski, Managing Director of Brayden Supervision Services, dated August 10, 2021. Justice Chappel found supervised parenting time between father and child to be in the best interests of Eliza. Had the court known in December 2021 that the CAS and Thrive would be unable/unwilling to provide assistance, the terms of the Applicant’s supervised parenting time would have included provision for supervision by another professional supervision agency.

[14] This issue must be remedied in the child’s best interests. The court is presented with two options:

a. The Applicant father advises the court that Dalhousie Place in Brantford, Ontario could presently accommodate one supervised parenting visit of one hour per week. He asserts that the added travel time to Dalhousie Place is approximately 12 minutes each way from the mother’s home. He is anxious to resume his parenting time with the child, as it has now been six months since he has shared time with Eliza.

b. The Respondent mother requests that supervised parenting time take place at the YWCA Family Access Centre in Hamilton. She advises that her work and family commitments render added travel time to Brantford an unfair burden upon her. She advises that she has placed her name on the YWCA Hamilton waitlist for local supervision services. She is unaware of the length of the waitlist, although the Affidavit material filed does not inspire confidence that the wait will be short.

[15] In considering these options in the best interests of Eliza, I conclude that, at this time, Dalhousie Place is the best option. The inconvenience of added travel time to Brantford is counter-balanced by a reduction of two parenting visits per week to one parenting visit per week. As such, I am satisfied that paragraph 3 of the Temporary Order of Justice Chappel dated December 13, 2021 must be modified as follows:

Para. 3: The Applicant shall have supervised parenting time with the child Eliza Anne Marie Coupland, born May 9, 2019 (“the child”), as follows:

a. Commencing as soon as may be accommodated by the supervising agency, at Dalhousie Place in Brantford, Ontario for a maximum of one visit per week for up to two hours, as may be arranged and accommodated by Dalhousie Place;

b. Commencing as soon as may be accommodated by the supervising agency, at the YWCA Family Access Centre in Hamilton, Ontario for a maximum of two visits per week for up to two hours, as may be arranged and accommodated by the YWCA Family Access Centre; and

c. Both parties shall forthwith ensure proper registration on the waitlist for supervision services at the YWCA Family Access Centre in Hamilton, Ontario, and upon acceptance and commencement of supervised parenting time at this centre, the father’s supervised parenting time at Dalhousie Place will be terminated.

[16] To be clear, I find no other cogent or compelling evidence of a material change in circumstances which would warrant any other expansion of the father’s parenting time with Eliza at this time. The Applicant has not acknowledged any of Justice Chappel’s concerns which formed the basis of the need for supervision, and in fact has continued to engage in the harmful pattern of conduct and communication which resulted in the restrictions on his parenting time, as discussed below. The Applicant’s requests for additional parenting time and joint decision-making authority are dismissed on this basis, to be explored more fulsomely at trial. Further, his request for benefits coverage and reimbursement of costs, as claimed within the Notice of Motion dated February 2, 2022 lack the requisite 6 evidentiary foundation and are also dismissed on a without prejudice basis to be pursued further at trial.

B. Issue #2: Renewal of Respondent’s Request for Restraining Order

[17] On December 13, 2021 Justice Chappel declined to grant a formal restraining order in favour of the Respondent mother. Instead, she attempted to manage the Applicant’s conduct and communications with detailed orders and creative enforcement mechanisms. However, the court emphasized that: “if the Applicant does not comply with these terms, or if he engages in any further type of intimidating conduct towards the Respondent, then the Respondent may apply to this court any day of the week on an urgent basis to renew her request for a police enforced restraining order”.

[18] A motion was heard before Justice Gordon on February 4, 2022. A review of the court’s decision dated February 11, 2022 reveals that the Applicant’s conduct did not improve in the intervening period. The court found that the Applicant father sent a derogatory and threatening email to the Respondent mother’s counsel on the very day that Justice Chappel’s endorsement was released, and thereafter continued to send hostile and abusive communications to both the Respondent and her counsel.

[19] In his decision, Justice Gordon concluded that the Applicant intentionally attempted to harass the Respondent and her counsel with his bullying tactics and in doing so repeatedly breached paragraph 8 of the December 13, 2021 Order of Justice Chappel. Specifically, he had done so 25 times by January 18, 2022 (when the motion materials were prepared). To sanction these breaches, Justice Gordon ordered costs of $5,000.00 payable by the Applicant to the Respondent payable forthwith. The Applicant has not complied with the costs award of Justice Gordon to date.

[20] Of utmost concern to this court, and despite the recent and repeated warnings of both Justice Chappel and Justice Gordon, the Applicant father has continued in his overtly hostile communications. In particular:

a. On February 7, 2022 (after the enforcement motion was heard but prior to the release of Justice Gordon’s decision) the Applicant father sent email communications to the Respondent mother and her counsel. The email communications use profane language and attack the character and professional reputation of counsel.

b. On February 7, 2022 the Applicant father also sent a direct text message to the Respondent mother threatening contempt.

c. On February 8, 2022 the Applicant father sent email communications to both the Respondent and her counsel. The father’s email references a “chance intersection” between the mother and father in front of the maternal grandmother’s driveway. He notes: “I did gain the knowledge of Eliza’s safety when I saw her arm flailing in the back seat on my way by your client and that prevented a call to the police tomorrow so that they could check on her wellbeing for me. So that’s a good thing. Please tell your client that I’m appreciative of her efforts to keep Eliza alive”.

d. On February 14, 2022 the Applicant father emailed both the Respondent mother and her counsel multiple times. In the series of emails produced to the court the Applicant:

a. Continues to denigrate the Respondent and her counsel;

b. Threatens that if he does not receive an immediate response to his request for parenting time that day, that he would attend at counsel’s office ‘to receive an answer’ and ‘to begin negotiations’; and

c. Advises that he “will not be doing supervised access” with Eliza.

e. On February 18, 2022 the Applicant again threatened to attend at the Respondent’s counsel’s office.

f. On February 20, 2022 the Applicant sent further emails directly to the Respondent mother. Within those emails he seems to suggest that his complaints made regarding the judiciary and the Respondent’s counsel can be “withdrawn at any time” but not “without absolute certainty that it is in Eliza’s best interest”. He continues to denigrate the Respondent and her counsel.

g. On February 21, 2022 the Applicant father sent another email to the Respondent and to her counsel wherein he denigrates the character of counsel (e.g., calls her “a crappy human being”, a “dumbass”, a “despicable human”, “sub-par lawyer”, etc.), and the mother (e.g., “a monster”, a “worthless parent”, etc.). He advises that both the Respondent and Justice Gordon are mistaken. Specifically, that financial consequences will not “make me comply with your demands”. The father also seems to suggest that counsel would be subjected to his physical “wrath” if she were a man. The email is somewhat rambling and disjointed and difficult to decipher at times.

h. On February 24, 2022 the mother reported her concerns relating to the father’s email communications to the police. The police spoke to the father on the same day. In response, the father sent two further email communications to the Respondent that evening: a. At 9:36 p.m.: “Hi, You’re absolutely delirious if you think that I’ll be letting go of Eliza at any point in her life. For the next 98 years I will be the ultimate description of what a father should be to her and, as has been so dramatically represented, that’s because I will never be subservient to YOU. Nice eh!”; and b. At 9:56 p.m.: The Applicant father emailed the mother “following [his] harassment by the HPS today and their selfish 8 treatment as such”. Within the body of the email that follows, the Applicant describes his hate for some of the Respondent’s family members, and with respect to her counsel, the father advises - “She’s done”.

i. On February 28, 2022 the Applicant again advises the Respondent’s counsel that he will be attending at her office if he does not receive a satisfactory response to demands contained within his email.

j. On March 1, 2022 counsel for the Respondent sent formal correspondence to the Applicant which:

a. Reminded him that he continued to be bound by the terms of communication ordered by Justice Chappel;

b. Requested payment of the costs award of Justice Gordon;

c. Drew his attention to the criminal harassment provisions under the Criminal Code (as previously drawn to his attention by Justice Gordon); and

d. Advised him in no uncertain circumstances that he was not welcome to attend at the office of the Respondent’s counsel at any time and that police would be called in response to any such attendance.

k. On March 3, 2022 the Applicant sent a one-line email to counsel for the Respondent at 9:16 p.m. which simply reads “Goodnight Ms. “Piece of Shit Human being Swan”.

l. On March 5, 2022 and March 6, 2022 the Applicant cc’d counsel for the Respondent on emails sent to his former partner and mother of non-subject children. Within these exchanges he appears to believe counsel to be ‘acting illegally’ and in conspiracy with his former partner.

m. On March 6, 2022 the Applicant sent another one-line email to counsel’s office staff, stating “Hello, Please tell your boss stop her illegal activities in my life immediately. Thank you”.

n. On March 7, 2022 the Applicant sent a group text message to the Respondent, her counsel, and his former partner wherein he:

a. Calls his former partner a crappy human being and demands final settlement in 7 hours and 24 minutes;

b. Alleges that both of his former partners have been acting in bad faith, refers to them as child abusers, idiots, and garbage humans, and advises that they need serious mental health help;

c. Uses profanity;

d. Alleges that counsel is engaging in illegal activities, and refers to her as a hateful, despicable woman;

e. Advises that he will destroy anyone who gets in the way of his relationship with his children;

f. Refers to the recipients as baby-snatchers;

g. Advises that he is “not ever leaving [their] lives”; and

h. Advises that counsel’s “days are numbered”.

o. On March 8, 2022 the Applicant sent a short email to the Respondent and her counsel accusing counsel of professional malfeasance.

p. On March 9, 2022 the Applicant sent an email to the Respondent and her counsel wherein he advises that he will be seeking counsel’s “disbarment and/or disinclision (sic) from a bench assignment forever”. He advises that he would discuss withdrawing his law society complaint against her if she ‘reverses her course of action in Eliza’s case”. In a second email, only to counsel, he advises that she “is the reason that this system is broken and I will use you as an example to change it before I die… Justice Pazaratz won’t be there to defend you as I steer your fate to that end”.

q. On March 9, 2022 the Applicant again cc’d counsel on another (very acrimonious and disparaging) email to his former partner.

r. On March 12, 2022 the Applicant emailed the Respondent and her counsel a notice that he would be bringing a claim in the Ontario Court of Justice relating to counsel’s alleged interference in his proceeding against his former spouse.

[21] The court is advised that on March 17, 2022, the father’s harassing communications with counsel and the Respondent inexplicably stopped. The Respondent mother advises that she did not return the matter to court earlier because she enjoyed the reprieve from constant communications harassment between March 17, 2022 and May 4, 2022.

[22] The father did not file any response or explanation for the very concerning communications he engaged in with the Respondent or with counsel as reviewed above. Instead, he simply argues that there is no basis for a restraining order because:

1. He has not communicated with her since March 17, 2022 and the Respondent herself is happy with the communications between them; and

2. He has not violated the distance proximity restrictions imposed upon by Justice Chappel as it pertains to attending at the mother’s residence, place of employment, or the home of the maternal grandmother.

[23] Restraining Orders in family court proceedings are governed by s. 46 of the Family Law Act, R.S.O. 1990, c. F-3 as amended, and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. In this proceeding, pursuant to the Children’s Law Reform Act, the court may make an interim restraining Order against the Applicant father if it is found that the Respondent mother has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody.

[24] A thorough review of the key principles pertaining to restraining orders in family court proceedings can be found in the case of Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506, at para. 44:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

c. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.

d. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.

e. The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.

f. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

g. It is not necessary for a responding party to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, 2011 ONSC 1452.

h. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

i. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a Respondent’s actions or words. A court must be able to connect or associate a Respondent’s actions or words with an Applicant’s fears. See: Fuda v. Fuda, supra.

j. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

k. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C.

l. It is appropriate, in borderline cases, to consider the balancing prejudice to the Respondent, if the restraining order is granted. See: D.C. v. M.T.C.

m. A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C.

n. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Children’s Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C.

[25] It is clear that the conduct must be of a sort that a reasonable person would regard as disturbing, or as a source of anxiety or irritation to a substantial degree – not trivial or casual annoyance. It is a question of degree: a restraining order should not be granted unless a clear case has been made out: Sniderman v. Sniderman, 1981 CanLII 4166 (ON SC), [1981] O.J. No. 1119, Ciffolillo v. Nieweglowski, 2007 ONCJ 469 at para. 23-24.

[26] I am satisfied that this is a clear and appropriate case in which to grant a Temporary restraining order. I am satisfied that the Respondent mother’s fear for her physical and emotional safety, and for the safety of her children is reasonable in the circumstances of this case.

[27] In December 2021, Justice Chappel attempted to manage the Applicant’s increasingly harassing and intimidating behaviours by imposing restrictions on his communications with the Respondent. Within hours of the release of the court’s judgment, he had breached those terms. In fact, he breached the terms no less than 25 times over the next few months, and was ‘fined’ for those violations by Justice Gordon in February 2022.

[28] The Applicant did not learn his lesson. Instead, the father ignored the costs sanctions imposed upon him by Justice Gordon, and ignored the further warnings of the court and references to criminal harassment charges under the Criminal Code. He advised the Respondent that she and Justice Gordon were mistaken – that financial consequences would have no impact on his conduct. True to his word, the Applicant continued on his campaign of intimidation and harassment of the Respondent and her counsel, and breached the terms of paragraph 8 of Justice Chappel’s order at least ten more times in the following days.

[29] When the Applicant was issued a warning by police, he immediately resorted to emailing the mother again, denigrating her intelligence and threatening her counsel. The Applicant’s 12 repeated threats to attend at counsel’s office are particularly concerning. I interpret his words as a threat to resolve issues through physical intimidation and potential violence if he does not get the response he demands. These words are designed to cause the Respondent distress: fear of violence, and concern that the Respondent’s counsel will no longer be willing or able to continue to act on her behalf as a result of the Applicant’s intimidation tactics.

[30] The father’s actions constitute far more than a nuisance to the mother. His behaviour is erratic and unpredictable. At times his thought process appears distorted: he is unduly focused on the relationship between the Respondent and her counsel, rather than upon the best interests of the subject-child. This was evident not only in the written materials before the court, but within the oral submissions made on this motion. That the mother has enjoyed a brief period of reprieve from the father’s long-standing and persistent harassment does not detract from a reasonable fear that his behaviours could start again tomorrow. The father provided no explanation to the court as to the intensity and fervour of his previous communications, nor why they suddenly abated. The Respondent mother should not be left to guess. Other less restrictive measures have failed to assist in governing the Applicant father’s conduct. Threat of criminal consequence, in the form of a formal restraining order, is now necessary to compel ongoing compliance.

[31] It is appropriate to both limit communications with the Respondent mother and the children in her lawful care, and to prohibit the Applicant’s attendance at other locations where the mother is known to frequent, including her home, work, her children’s schools/places of childcare, and her counsel’s office. A Temporary Restraining Order shall issue in the attached form.

[32] Interestingly, the father’s Notice of Motion (at paragraph 2) requests a limit of one child focused, congenial, and informative communication per week in writing on parenting issues. Given the pervasive difficulties in communications evident in this matter, I agree that it is appropriate to limit the volume of communications. As such, communications between the Applicant and the Respondent’s legal counsel shall be limited to one written communication each per week, save and except as may be required for

(i) service of court documentation,

(ii) in situations of urgency, or

(iii) as otherwise agreed between the Applicant and counsel. To that effect, paragraph 8 of the Temporary Order of Justice Chappel, dated December 13, 2021, shall be varied to include the following additional provision:

“Paragraph 8(d): Save and except

(i) as may be required for the service of court documentation, or

(ii) in situations of urgency, or

(iii) as may be agreed to in writing in advance, the Applicant and counsel for the Respondent shall exchange a maximum of one written communication with the other party each week”. Parties and counsel need not respond to any communications which offend these restrictions.

ORDER

[35] On the basis of the above:

1. A Temporary Restraining Order shall issue, as per the separate Form 25F: Restraining Order endorsed on today’s date;

2. The Temporary Order of the Honourable Mme. Justice D. Chappel dated December 13, 2021 shall be varied as follows: a. Paragraph 3 shall be replaced with the following:

3. The Applicant shall have supervised parenting time with the child Eliza Anne Marie Coupland, born May 9, 2019 (“the child”), as follows:

a. Commencing as soon as may be accommodated by the supervising agency, at Dalhousie Place in Brantford, Ontario for a maximum of one visit per week for up to two hours, as may be arranged and accommodated by Dalhousie Place;

b. Commencing as soon as may be accommodated by the supervising agency, at the YWCA Family Access Centre in Hamilton, Ontario for a maximum of two visits per week for up to two hours, as may be arranged and accommodated by the YWCA Family Access Centre; and

c. Both parties shall forthwith ensure proper registration on the waitlist for supervision services at the YWCA Family Access Centre in Hamilton, Ontario, and upon acceptance and commencement of supervised parenting time at this centre, supervised parenting time at Dalhousie Place will be terminated.”

b. The following provision shall be added to the existing paragraph 8:

“8(d): Save and except as may be required (i) for the service of court documentation, (ii) in situations of urgency, or (iii) as agreed to in writing in 14 advance, the Applicant and counsel for the Respondent shall exchange a maximum of one written communication with the other party each week”.

3. All other claims for relief are dismissed.

4. There shall be no order as to costs.

[25] I have set out Justice Bale’s reasons in detail because they afforded the father another warning that he had to moderate his behaviour and stop harassing and attempting to intimidate the mother and her counsel. These reasons offer a second “wake up” call to the father following Justice Chappel’s first warning in her reasons. Unfortunately, the father did not heed the warning provided by either Justice Chappel or Justice Bale.

[26] On June 30, 2022 at the Trial Management Meeting (“TMM”) Justice Bale scheduled this matter for trial on the sittings of November 28, 2022 for 9 – 10 days. As the father indicated he had counsel, who might be retained. The TMM was adjourned to September 21, 2022.

[27] On September 21, 2022, at the TMM, Justice Gambacorta completed the Trial Scheduling Endorsement form with the parties and confirmed the matter on the trial list.

[28] On October 14, 2022, Justice Brown granted an order on consent for release of records from the Ontario Provincial Police (“OPP”) and the Hamilton Police Service (“HPS”).

Father’s position

[29] The father seeks unsupervised parenting time. He seeks to gradually increase his parenting time to eventually have an equal time share with the mother, such that Eliza resides in both parents’ homes and that neither parent’s home is designated as her primary residence. He seeks shared decision-making responsibilities.

[30] With respect to the outstanding child support arrears in the amount of $14,318.00, pursuant to the Temporary Order of Justice Reid, the father seeks to fix the amount at $4,000.00 to be paid in monthly instalments of $333.33 for a period of 12 months.

[31] The father seeks payment from the mother of the costs of supervised parenting time through Brayden Services ($2,412.00) and the YWCA Access Centre ($1,135.00) on the basis that the order for supervised parenting time was a without prejudice order to seek adjustment of the cost (the father to pay in the first instance) and that the supervision was entirely unnecessary.

[32] The father withdrew his claim regarding his Charter Rights.

[33] The father testified and called Peter Joshua Lowry and David Russer as witnesses.

Mother’s position

[34] The mother seeks sole decision-making responsibility and primary residence of Eliza. She seeks an order requiring the father’s parenting time to be supervised. She asks that the father’s parenting time continue to be supervised at the YWCA.

[35] The mother seeks on-going child support in accordance with the Ontario Child Support Guidelines (“OCSG”) and determined by the father’s Line 150 income. The mother seeks payment of the outstanding arrears in full.

[36] The mother describes the relationship as volatile. She experienced domestic violence at the hands of the father during the relationship and his abuse has continued since the parties separated. There have been numerous incidents of police involvement.

[37] The mother prepared a four-volume exhibit book.

[38] The mother seeks a final restraining order.

[39] The father has an alcohol abuse problem and is unwilling or unable to follow court orders.

[40] The mother testified and called the following witnesses:

a. Deborah Sliwinski;

b. Mary Anne Duncan;

c. Danielle Brown; and,

d. Joseph Surrao.

Father’s case

Evidence in Chief

[41] The father was born and raised in Kirkland Lake. His sons from his first marriage were born in Kirkland Lake and still reside there. He moved to Hamilton in August 2018 to pursue a relationship with the mother.

[42] The father separated from his first wife, Trish, in March 2016.

[43] The father and mother began a relationship when they were both living in Kirkland Lake. He connected with the mother on the “Plenty of Fish” site in August 2016. They had known each other previously. The mother told the father she was moving to Hamilton in a couple of weeks.

[44] The mother moved to Hamilton in August 2016 with Cora. Cora’s father had been living in Kirkland Lake but had moved to Cambridge, where he continues to live. The father understood the mother wanted to move to Hamilton to be closer to Cora’s father. The mother further indicated she wanted to secure her High School Diploma and pursue post-secondary education at Mohawk College and McMaster University.

[45] The parties had a long-distance relationship until the father moved to Hamilton in August 2018. The father visited the mother and Cora in Hamilton, and the mother and Cora visited the father in Kirkland Lake. The father says it was not an “on again/off again” relationship from his perspective.

[46] The father spent a lot of time in his evidence emphasizing the mother’s unreasonable decision to move to Hamilton and her refusal to return to Kirkland Lake.

[47] He described the mother wanting to be closer to Cora’s dad as just an excuse because he told the mother he would drive Cora from Kirkland Lake to Cambridge to share parenting time with her father every other weekend. The father acknowledged the travel time from Kirkland Lake to Cambridge one-way is 7 hours, at that time Cora was 6 years old in 2016. It is not reasonable, I find, to suggest a child of 6 be subjected to a 14 hour round trip on alternative weekends.

[48] The father described meeting with resistance from the mother and her family about their relationship. The mother’s sister said there was no way the mother was moving back to Kirkland Lake. The father described the parties as having frequent arguments from April 2018 until August 2018 when he moved to Hamilton.

[49] The father said his separation from Trish was amicable until March 2018. He enjoyed week about parenting time with the boys when he lived in Kirkland Lake.

[50] When the father said he was re-locating to Hamilton, his relationship with his ex-wife and his sons “took a turn”. He has not seen Jack since 2018. The father described Jack as “estranging himself” and said he got no cooperation from his ex-wife.

[51] Carter visited the father in Hamilton and the father visited him in Kirkland Lake many times, but the regular visits ended when the father was charged with DUI in February 2019 when driving back to Hamilton from Kirkland Lake. The father’s driver’s licence was suspended from February 2019 until March 2021.

[52] After the February 2019 DUI the father had a device in his car which would require him to take a breathalyzer test and if he failed the car would not start. He filed Alcolock Reports which covered the period from April 16, 2021 to June 6, 2021.

[53] The reports show he failed the test on April 16, April 29, May 1, May 11 and June 6 of 2021. The father said he had used hand sanitizer on April 16^th^; mouthwash on May 1^st^ and June 6^th^; and windshield washer fluid inside the car on April 29^th^ and May 11^th^ as explanation for the failed tests.

[54] The father described his ex-wife as someone who knew how to navigate the family court system and one who was not willing to make any compromises in their long-distance relationship.

[55] The father moved into the mother’s apartment in August 2018. The mother refused to add him to the lease on her apartment.

[56] They learned the mother was expecting Eliza in September 2018. The father says the mother’s attitude towards him began to change mid October 2018.

[57] He described there being “premeditation” to what the mother did by not putting him on the birth certificate and refusing to co-parent with him.

[58] On May 3, 2019, he had a beer after work. When he got home, the mother was irate and called him a drunk. She packed a bag and left. A couple of days later she sent him a text message saying he had one week to vacate the apartment and that if he caused problems, she would call the police.

[59] The police were called, and he had to leave the apartment because he was not on lease. He slept in his car the next two nights in the parking lot of the apartment building, then spent two nights at the hospital after Eliza’s birth. Then he spent two nights at a hotel before he secured a short-term rental.

[60] The mother refused to put his name on the birth certificate.

[61] He says he was spending a lot of time at the mother’s apartment helping with the baby. He slept on the couch. Then by July 1^st^ he was living at the apartment full time. He thought they were reconciled.

[62] In November 2019, the mother said she was moving from the apartment and the father was not coming with her, Cora and Eliza. She moved into the same apartment building as her mother. The father arranged to get a room about a 15-minute walk away.

[63] In January 2020, the mother insisted the father’s contact with Eliza be supervised and in the community.

[64] On February 21, 2020, the mother and father reconciled. They lived together until September 2020. He kept his rented room because he did not want to be homeless again if she threw him out.

[65] On September 8, 2020, they agreed he’d give up the room and move into the mother’s apartment full time.

[66] On September 21, 2020, he officially moved in and gave up his room.

[67] The next day he picked up a six pack and walked home. The mother was irate when she saw the six pack. The mother screamed “what the fuck are you doing with that?”

[68] The father says he walked into the apartment to put the beer in the fridge and wash his hands. She said she did not want any beer in the house while she was working. She worked night shift, and the father was supposed to be taking care of Cora and Eliza while she worked. The father took the beer next door and gave it to the maternal grandmother, Faith Coupland and her friend who were sitting on the porch. The mother continued to yell. The father tried to put Eliza into the stroller to take her for a walk. The mother violently approached him and gouged his face. The mother took Eliza out of the stroller. He walked away. He sent her a text that he was going for a walk, and they could talk when he came back about what had just happened and his parenting time going forward due to the dissolution of their relationship. He went to his friend’s house. The mother texted him advising his stuff was ready to be picked up. He wanted his passport. She said she did not have it but that is not true because he gave it to her. The police were called and told him the mother said she did not have the passport and if he did not leave, he’d be charged with harassment, so the father left. He said at that time it was around midnight.

[69] The father says he walked nine kilometres to work the next day and started work at 5:30 am. He flew to Timmins and then went on to Kirkland Lake for a week.

[70] On the way home from the airport, he texted the mother about arranging time to see Eliza.

[71] He got a room again in the same location just a different unit.

[72] He had facetime calls with Eliza three times a week. The final one was October 14, 2020. The mother and Cora were in the background making noise and distracting Eliza. The mother said, “say fucking bye to daddy”.

[73] He did not see Eliza again until Justice Donahue’s order in April 2021.

[74] The father called the CAS and reported the mother was putting Eliza in the middle of the conflict. He hoped the CAS would help de-escalate the situation.

[75] The mother demanded supervised access. The CAS would only offer supervised access for children in care and the YWCA was closed because of COVID.

[76] He said he walked by the mother’s home every night on his way to his friend, Dave Russer’s home. They were doing woodwork together. He would let the mother know he was going by in case she would let him see Eliza. She never did.

[77] The supervision by Director for Brayden Supervision Services (“Braydon”) was very expensive.

[78] The father described a severe breakdown in communication between him and Brayden.

[79] He acknowledged the email from Debbie Sliwinski, the Managing Director at Brayden dated August 10, 2021, advising that Brayden was suspending service to the family. The father said, “Perhaps I got a little cantankerous”.

[80] After that, the mother offered brief zoom calls.

[81] At the case conference before Justice Reid on August 24, 2021, they agreed on some terms but not his parenting time, so he brought a motion seeking unsupervised parenting time that was heard by Justice MacLeod on September 14, 2021. Justice MacLeod advised the parties he was going to order some unsupervised parenting time and urged them to work out a schedule on consent. The parties did so.

[82] He says he tried to communicate “nicely” with the mother, but her response was he had to talk to her lawyer. He emailed her lawyer and did not receive any responses. His efforts were ignored.

[83] On Sunday November 14, 2021, when he met the mother at the exchange point (she was late) he thought the mother might have been “under the influence”. When he returned Eliza to the exchange point there was a strange man sitting in the mother’s car. He asked who he was and was told “Cal”.

[84] On the following Tuesday, when Eliza was asleep in the car, he asked the mother if they could talk about Christmas. She said you have to talk to my lawyer. He told her she needed not to be drunk like last Sunday. He had messaged her earlier through the AppClose saying “don’t show up under the influence again or I’ll call the authorities”.

[85] He received an email from Ms. Swan asking for confirmation he would return Eliza at the end of the next visit.

[86] When the mother did not meet him at the exchange point, he called the police and CAS and said last time (the previous Sunday) she was drunk. The police said they could not send anyone at that time. He went to her house to see if she and Eliza were there. He also drove to the mother’s brother’s home (Jeremy MacDonald) and to her mother, Faith’s home. He did not find the mother and Eliza. He went home. The CAS called him. The mother produced Eliza at 2:30 pm at the police station. He was told she is fine. The mother did not allow him to see Eliza pursuant to the MacLeod J. order after that date.

[87] The father’s last unsupervised visit was November 19, 2021.

[88] The father noted that Justice Chappel’s order, dated December 13, 2021 provided his parenting time was to be supervised by Thrive Counselling (“Thrive”).

[89] Thrive declined service to him because he expressed frustration when they refused to give him a start date. The father said he did not threaten or use profanities but probably raised his voice on the telephone.

[90] Justice Bale’s order of June 2, 2021 changed the place of supervision from Thrive to Dalhousie Place, in Brantford, until the supervised access centre at the YWCA was available in Hamilton.

[91] The YWCA offered a one hour visit every other week. Dalhousie Place said they would not offer time on the other week because the YWCA was offering service. He had one hour every other week until December 2022 when the time was increased to two hours once a week which has continued until January 2023 when it was again increased to Friday evening from 6 pm to 8 pm and Saturdays 10 am to 12 noon.

[92] Eliza enjoys their time together and does not want to leave at the end of the visit.

[93] The father says supervision is no longer required and Eliza needs normalcy and stability. The schedule at the YWCA changes all the time. His time should be as set out in Justice MacLeod’s order gradually increasing and eventually becoming equal time.

[94] The father says he will cooperate with the mother regarding the mother’s choice of daycare and school for Eliza.

[95] If Eliza was in his care half of the time he could take her to school in Stoney Creek (about at 20-minute drive from his home) and would use the Early Years Centre located at the school for before and after school care. His work is very accommodating. He can work 7 am to 3 pm or 8 am to 4 pm. He currently has a one-bedroom apartment and would sleep in the living room when Eliza was with him. He is looking for a bigger place.

[96] He suggests he and the mother communicate using the AppClose program and also use a communication book that travels with Eliza. The parties must share information regarding Eliza’s appointments, dietary needs, issues arising while in the care of the other parent. Eliza’s health card, library card and other documents could be put in the communication book. He agrees Eliza’s passport and birth certificate should be held by the mother.

[97] He would want Eliza to have daily face time with the other parent. He wants Eliza to have a dedicated device at each home for this purpose.

[98] He would maintain the routine the mother has established for Eliza with respect to mealtime and bedtime.

[99] He wants the mother to participate in co-parenting training with him.

[100] The father has volunteered in the community and wants to involve Eliza in volunteering activities.

[101] The father was charged with criminal harassment in March 2022, but he was not served a summons until August 2022. The charges relate to emails he sent to his ex-wife when dealing with child support issues. Child support with respect to his sons was finalized in April 2022.

Cross examination

[102] The father acknowledged his relationship with his ex-wife and boys deteriorated for more reasons than his relocation to Hamilton. He agreed there was a confrontation between him and Jack, which Jack recorded on his iPad. They were both screaming and using profanity. The father said he had not been drinking at the time.

[103] The father started an application in Kirkland Lake in April 2018, because his ex-wife was withholding the children.

[104] Visitation was ordered to be 3 hours facilitated by the Office of the Children’s Lawyer (“OCL”) to reunite the children with the father.

[105] The father has not seen or had any communication with Jack since April 26, 2018.

[106] The father continued to have regular time with Carter. While he lived in Kirkland Lake the father saw Carter daily. After he moved to Hamilton, in August 2018, the father returned to Kirkland Lake every other weekend to see Carter. This routine came to an end in February 2019 when the father was charged with Driving Under the Influence (“DUI”) and his driver’s licence was suspended. He continued to have regular face time with Carter until July 2021.

[107] The father says now he and Carter do not communicate. Carter suffered an injury to his collarbone and required surgery in Timmins. When the father went to the hospital, Carter sent a message saying, “why are you stressing me out.” The father says his ex-wife did not want him there. Since then, he has not seen or communicated with Carter. He sends him birthday and Christmas greetings. He is waiting for Carter to reach out.

[108] Copies of text messages between the father and Carter were put to the father. These messages are dated July 21, 2021 and September 16, 2021.

[109] On July 21, 2021, the father and Carter were exchanging messages when Carter was at the hospital regarding upcoming surgery. His mother was with him, and the father texted to say he was at the hospital and would make his way to where Carter was.

[110] Carter texted back:

Can I do this myself please

I really dont [sic] need both of you making [sic] more stressed than I already am

[111] The father responded,

Yes I just want to see you before you go in buddy.

Stressed” that’s not why I’m here In fact I asked if this could be friendly when I said I was coming. I love you and I support you but I’m your dad and I’d like to be kept in the loop at least.

I’m here now I just thought you and I could have a few minutes together before you go in and while your mom checks you in. That’s all.

Im on the bench in front. If your mom doesn’t want to be friend that’s fine but I’m here for you. Not her. Just let me know what you’re going to do so I don’t just here like an idiot waiting for nothing . I’m sorry this isn’t able to be friendly Carter.

That’s what I want.

[112] Carter responded:

Well dad fuck off and do something not here and go cause right now this is way more stressful than it needs to be because of you and its not about you and want its about me right now so just go somewhere else ok mom doesn’t want to talk to you right now and I don’t either at the moment we can have a visit later or tomorrow I’m stressed enough and YOU are making it worse ok your my dad and that’s great but I seriously don’t need you here so quit wasting your time and wait somewhere else you didn’t need to come up here I’m [sic] the first place anyways it was completely unnecessary so quit making me stresses or there’s going to problems!

[113] The father responded:

Thank you for finally being honest about me coming here. You knew I was all along but here we are. I’ll be at Jens. Please consider FaceTiming me during your appoint and lose your attitude please. It’s ugly. At least point it where it should be. I love you.

Oh yeah. Your mom was given every opportunity to tell me not to come but she didn’t . So your stress was caused by not communicating effectively and its not because it was s me being secretive. Good luck. Let me know what happens please

Oh yeah. Anything I do for you is never a waste of time. Just saying

[114] Carter responded:

You can stop talking about my mom or I swear to god me and you won’t have a ducking [sic] relationship anymore and I’ll make mom my legal guardian so shit [sic] your goddam [sic] mouth and don’t talk about mom anymore the damage has been done go be a dad to your daughter.

[115] On September 21, 2021 Carter responded to a message from the father about returning a bike and saying he would try and call that night. Carter responded:

Go fuck yourself dad. If you ever call my mom a lunatic again I swear to god we’ll never ever see each other again stay out of my life and just pay your fucking child support ok for me not her. Don’t plan on calling me.

[116] The father says he has not had the opportunity to attempt to repair the relationship with Carter because of his involvement in the care regarding Eliza.

[117] The father says his ex-wife involved the Northeastern Ontario Family and Children’s Service (“NEOFACS”) in Kirkland Lake in March 2018 and sought their advocacy to alienate his children from him. She was successful because she worked with the agency.

[118] The NEOFACS was briefly involved with his family in 2013, when he and his wife separated for a short time. No protection concerns were identified in either involvement.

[119] He met with a worker at the agency office. He described the meeting as going “pretty terribly”. He acknowledged he filed a complaint with the Child and Family Service Review Board (“CFSRB”). The father says malfeasance was found against NEOFACS and in August 2018, NEOFACS was ordered to close its file. He acknowledged his use of alcohol was an issue and that he was asked to provide a urine sample. He did and nothing came of it. He says he never drank alcohol in a caregiving role – only after the children were in bed.

[120] The Hamilton CAS records indicate that both the mother and father had involvement with NEOFACS in earlier relationships. The father has a special caution on his profile that he is verbally aggressive at times from 2018.

[121] The father says that when he was charged with DUI in 2012 or 2013, he had only consumed half a beer and his friend convinced him to drive to McDonald’s. There was a cop in the bar where he and the friend were and the cop followed him and charged him.

[122] When he was charged in February 2019, he had only had one beer, when he stopped at the side of the road to let his dog out. There was a freezing rainstorm at the time. He knows he made a poor decision to drink the beer.

[123] The father denied arguing with the mother, when she said he should not drive to Kirkland Lake after he had been drinking.

[124] When asked if his alcohol consumption was an issue in the relationship with the mother the father responded it was an issue she had from her childhood.

[125] He severely cut back his drinking. They attended couples’ counselling and alcohol was not an issue. They attended three sessions. He does not remember when exactly but in 2019, after Eliza’s birth.

[126] The father says he had no difficulty communicating with the Brayden personnel until Ms. Swan became involved. After Ms. Swan became involved, the Brayden people were concerned about not having a set schedule of parenting time.

[127] The father conceded that he could not commit to a set day and time each week. He insisted that this fact did not create any difficulties.

[128] The father was shown a letter dated August 10, 2021, see Respondent’s Exhibit Book, Volume 1, tab 9 page 27. This letter is the letter advising that Brayden will no longer offer services.

[129] The father said he absolutely raised his voice about the cancellation of the August 4, 2021 visit.

[130] The father wanted proof the mother refused in home visits supervised by Brayden for when he returned the matter to court.

[131] The father agreed that as soon as Justice MacLeod’s order on September 14, 2021 (the “TO”) was received, he began emailing Ms. Swan asking for more time such as at Thanksgiving, Hallowe’en, and Christmas.

[132] He agreed that Ms. Swan responded, on September 14, 2021, stating the mother wanted to follow the TO to which they had agreed.

[133] On October 8, 2021, the father sent an email to Ms. Swan, two of her support staff and the mother stating:

Hello

I’ll need to know what your clients decision is about Eliza’s time with me for this weekend, Sunday October 10 & 11, 2021, by the end of business today, Friday October 8, 2021. Failure to provide that will result in a decision about such being made solely by me and further court action.

Your cooperation in this matter is requested.

Derek Armstrong

[134] Justice Chappel and Justice Bale describe the father’s emails in great detail in their respective decisions. Justice Chappel focused on the father’s communications after Justice MacLeod’s order and Justice Bale focused on the father’s communications after Justice Chappel’s order. I rely on their reasons which I have set out above. I will not set out every email again but will highlight some of them.

[135] The father acknowledged he was told by Ms. Swan to communicate with her and not with the mother directly.

[136] Ms. Swan advised she wanted to be able to review his proposals with her client.

[137] He acknowledged he would email Ms. Swan and request changes to the parenting time schedule on 24 hours or less notice. The father says doing so was reasonable because he had already made the request directly to the mother through AppClose.

[138] The father accused Ms. Swan of disrespecting the legislative changes to the Divorce Act which he described as “lawyers are not to be supporting conflict between the parties”. The father was asked how it was promoting conflict, when the mother did not agree with the increased time he was requesting. The father responded he makes respectful requests and gets no answers. Then, he acknowledged he did get answers “no not at this time.”

[139] The father says the mother never used the AppClose as it was intended. He asked her to partake in discussions, but she never participated.

[140] The father acknowledged that despite receiving correspondence from Ms. Swan that the mother’s position was that the TO was to be followed, he asked to hear the mother’s answer directly from the mother.

[141] He acknowledged that he was rude in his emails to Ms. Swan (on November 8 and 9, 2021) but insisted he was justified because he was responding to her earlier emails.

[142] He was challenged that when he does not get his own way, he believes he is entitled to be rude. He did not agree.

[143] On November 9, 2021 the father sent an email to Ms. Swan at 12:24 pm stating:

Please stop using antagonizing terms such as claiming to have been threatened when no such thing has been communicated at all. It is only in your best interest to keep the idea of a conflict that doesn’t exist alive and it hurts everyone else involved including your client and especially Elia to keep perpetuating it. Yes there are court orders, plural that need to be followed though you have instructed your client not to follow certain ones. For example, your client is contemptuously withholding the information about Eliza’s health care providers and is also contemptuously refusing to cooperate in providing me Eliza’s birth certificate with my name on it though I have given many options to both of you as to how this can be done.

In plain English. If I don’t hear from your client tonight in person that she desires to prevent Eliza spending the day with me on Thursday then I will stop up at her home to pick Eliza up at 10:00 a.m. on Thursday November 11, 2021 as I will consider that she is in agreement of such by her lack of disapproval. Should you require it I can translate that to French or Spanish for you or I can recommend an excellent ESL court for you to help with your reading comprehension skills.

Justice MacLeod made it clear Eliza deserves to have a meaningful relationship with me. This is not the case due to your client’s refusal to support it. Please stop using Eliza and your client as a means to get vengeance on me because Justice MacLeod made you look like a fool in court. It’s unprofessional and despicable. Please also stop preying on Ms. Coupland’s severe anxiety and encourage her to be more peaceful as Justice MacLeod encourage you to do in our last hearing.

I look forward to hearing from your client this evening regarding Thursday’s visit from 10 am until 7 pm I only ask that you encourage her to finally be a responsible co parent. It’s what Eliza deserves.

[144] The father sent emails to Ms. Swan and the mother on November 10 2021 at 8:06 pm; 8:23 pm 8:59 pm; 9:04 pm; 9:19 pm; and 10:04 pm – six emails in the space of two hours. The father said he sent the six emails “to communicate what I needed to communicate that night”. He did not expect a response that night.

[145] The father acknowledged the emails did not contain parenting proposals and that he made threats against Ms. Swan. He said he did so because he believed she was supporting the conflict between him and the mother and not supporting amicable discussions between him and the mother.

[146] In the email sent at 8:06 pm on November 10, 2021 the father stated:

Could you please instruct your client to treat me like a human being for Eliza’s sake as the legislation has been changed in order to prevent people like you from taking advantage of your client’s anxieties for your benefit.

. . . Very soon I’m going to be making decisions for Eliza that don’t include your clients agreement. I know that she was doing cocaine last weekend. Who the fuck is sitting in the front seat of her car called “Cal . . . I don’t know his last name”. that’s your client’s words.

. . . Please provide me with a valid reason why Eliza can’t spend the night with me on Thursday November 11, 2021 at 4:00 p.m. or that’s what she’ll be doing until Sunday. . .

. . .This whole situation would be so much more easy for Eliza if your client would just be reasonable. Communication, expectations, and contact between your client and I are all impeded by your presence.

. . . I’m sorry that you’re barren but that doesn’t mean that Eliza has to suffer because you had a verbal tongue lashing from a judge during one of our interactions about her.

. . . You will never be a Judge as long as you keep supporting Amanda’s wish to keep this conflict going. I go away when my child gets what intend for her. It’s really that simple. See you in court in avouer [sic] weeks.

Not respectfully,

Derek Armstrong

PS : You should have just been friendly in the first place.

[147] The father was asked if the emails were in response to anything. He said he was responding to Ms. Swan’s “support of zero communication between me and Ms. Coupland”.

[148] In in an email on November 10, 2021 at 8:59 pm the father stated:

Just so that you know I’m now devoted to making sure that you personally can’t hurt anymore kids like you’re hurting Eliza. You’re my next project. This is the last communication the [sic] you will ever receive from me.

I am no longer in agreement with the bullshit that is hurting Eliza.

Goodbye.

[149] In an email dated November 19, 2021 sent at 12:19 am the father said, “Eliza is not seeking your client’s approval’ and “I’ve decided Eliza’s current situation is changing. . .” The father said he meant he would be returning the matter to court.

[150] The father stated in the email:

Starting Sunday 21/11.2021 Eliza will be coming to live at home with me each week from Sunday to Thursday while Amanda is working her regular night shift. Eliza is not seeking you clients approval or agreement but only her cooperation. Her daycare is all set and paid for at East end Scholars, St. Luke’s or St. Ann’s whichever is available at the time. Eliza will enjoy a level of consistency that she has rarely had with your client since I left her abuse and will be introduced to being an integral member of a social society as child should be at her age. I realize that you’re going to advise your client to not drop Eliza off on Sunday because you’re a leach on society, sorry a family legal professional, but does Eliza deserve to be put through that again. It’s only about Eliza (and Cora and Carter and Jack and Jessica)and no one else. Can you please respect that.

Your client can’t legitimately be in disagreement with that given that she’s a drunk driver, confirmed videoed stumbling across the parking lot last week.

Should your client wish to have access with Eliza during those 4 days a week, we can certainly discuss that before I apply for the no trespass orders for each of those daycare locations on Monday.

[151] The father said he would get a trespass order to prevent the mother from absconding again. He was asked when she absconded with Eliza and his response was when the mother moved in February 2021 and refused to tell him where she was and refused to allow the authorities to tell him where she and Eliza were.

[152] The father sent a second email on November 19, 2021 at 12:29 am to Ms. Swan and the mother stating:

Dear Ms. Swan

Also please know that I only returned Eliza tonight because your clients language and physical posturing indicated that she was going to become violent again and I didn’t think that Eliza should be exposed to that again. Please make sure your client is behaving as a responsible parent for Eliza going forward.

Thanks

Derek Armstrong

[153] The father said that when he met the mother at the exchange point, Eliza was asleep in the car. He attempted to have discussions with the mother. She became irate and shoved him to get Eliza out of the car.

[154] Ms. Swan responded to the father’s emails on November 19, 2021 at 3:03 pm advising that the mother was not in agreement with his request for extended time and asking that he confirm he will adhere to his court ordered time. Ms. Swan also asked the father to please refrain from speaking about this matter at the access exchanges and stop calling the mother derogatory names.

[155] He acknowledged that in November 2021 there was a temporary order in place unlike February 2021 and that the mother was complying with the temporary order. He later said he did not recall if he responded to Ms. Swan’s email requesting he confirm he would adhere to the temporary order.

[156] On November 10, 2021, at 10:04 pm, the father sent an email to the mother. He said he was not able to copy it to Ms. Swan. The subject line reads “Eliza is tired of this”. The father states in the email:

Does Eliza keep remembering that her daddy is a piece of shit how you would have it or does Eliza get to enjoy a life with her daddy… You’re a bit bad mother. Maybe you can let go of the bad ideology that your mother and sister and the system made you think was normal so that Eliza can have a normal life like all of her friends in grade 3. Or 4. Or 5. Or 6. Are you a monster or not. I’m waiting to find out.

[157] Continuing the cross-examination, Ms. Swan put a text message to the father, that is undated. The text was sent to the mother and Ms. Swan:

So Amanda is going to have to stop hiding behind her lawyer. I’m keeping Eliza for the week on Sunday unless I hear from her about a plan to make me a bigger part of Eliza’s life. That’s what is happening in your friends life atm. She’s my daughter too not just hers and she’ll lose her if she doesn’t smarten up really fucking fast.

[158] The father said he did not recognize the text but acknowledged that it is his Facebook profile photo, and that Eliza is in the photo. He said he does not recall sending the message.

[159] Again, he stated did not recall if he responded to Ms. Swan’s email asking him to confirm he would adhere to the court order.

[160] After November 19, 2021, the mother denied the father’s parenting time.

[161] The father reluctantly agreed that he had made numerous requests to change the parenting time set out in the TO and that he had said Eliza would be primarily living with him.

[162] Justice MacLeod’s endorsement dated September 10 2021 was put to the father. Paragraph 6 reads as follows:

6. This case is scheduled for a SC in December 2021. This schedule should remain in place until then, barring any negative incidents which would warrant a decrease in his parenting time.

[163] The father acknowledged that despite the endorsement, he made numerous requests to increase his parenting time.

[164] The father acknowledged receiving a copy of Justice Chappel’s Temporary Order dated December 13, 2021. Paragraph 8 of the Order was put to the father. It reads as follows:

8. All communications between the parties shall be through counsel or another third party agreed upon in advance in writing. The Applicant’s communications with counsel and any third party agreed upon communication purposes shall be subject to the following terms and conditions:

(a) His comments shall be strictly limited to issues pertaining to the child;

(b) His messages shall be brief, informative, and courteous; and,

(c) Without limiting the generality of subparagraphs (a) and (b), he shall refrain absolutely from making derogatory comments about counsel, any agreed upon third party or the Respondent, and shall refrain from setting out personal opinions regarding their character.

9. In the event that the Applicant breaches the terms set out in paragraph 8, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules.

[165] The father was challenged that his email of December 13, 2021 at 6:59 pm to Ms. Swan was in breach of paragraph 8. The father denied that it was. His email is as follows:

Hi,

I won’t be subjecting our daughter to further abuse through the use of thrive counselling. Eliza and I will spend time together starting tomorrow or as soon as possible as the Hamilton Children’s Aid Society is able to accommodate it, in my home, of course.

This is the only way that I will support this order and it is now up to your client to decide whether to allow it or not. Ms. Nicholson has been advised.

Thank you!

Big D

[166] The father said in his view this email is in compliance with the terms of Justice Chappel’s order.

[167] At 7:55 pm the father sent another email to Ms. Swan:

What’s it going to take for Eliza to get her daddy back. I get it your [sic] protecting your client [sic] financial best interest. But really. What is it going to take for Eliza to get her daddy back. The daddy that she loves and adores, makes decisions with and has meaningful moments with. The daddy that she makes memories with. You know that you’re [sic] client is only setting Eliza up for the life that she had as a displaced young lady. I’m sorry that you feel that I have a vendetta against you but I do not and . . . it’s legitimate. For Eliza. Because you suck it hard Ms. Swan. Really Hard. You’re the monster that I hope to rid Eliza’s life of. Just saying.

So for Eliza it’s going to be CAS or nothing. See you at the bullshit settlement conference that they’re forcing to do.

Regards,

Derek Armstrong

[168] The father agreed the second email is not in compliance with Justice Chappel’s TO.

[169] The father then stated he had not seen Justice Chappel’s TO at that point. Counsel pointed out he mentions Thrive Counselling and more importantly that the TO was released on December 13, 2021. The father then said he had received the TO but had not opened it yet.

[170] Also on December 13, 2021, the father sent emails to Ms. Swan at 7:01 pm and 7:38 pm:

a. At 7:01: Monday. For Eliza right?

b. At 7:38: Sure. Details!?!?

[171] The father said he was not sure who he was talking to in these emails.

[172] Also on December 13, 2021, the father sent an email to Colleen Morrow who is a member of Ms. Swan’s staff:

Just so that you guys are aware 100 feet is not that far and and [sic] im [sic] far from done with your child abusing asses. Good luck. You’re my new mission.

[173] Justice Chappel’s TO provides at paragraph 7 that the father is not to attend within 100 meters of the mother’s home, workplace or the home of her mother, Faith Coupland.

[174] The father refused to acknowledge that his language was threatening or intimidating in the email.

[175] He did acknowledge that it was not an acceptable way to speak to the law firm representing the mother. He denied the email was harassing and/or intimidating.

[176] The father sent another email at 8:49 pm to Madison Bell, another member of Ms. Swan’s staff:

Let’s go JSwan [sic]. It seems that you think I’m weak. I have only just begun making your life a living hell. Game on. MS. Bell

[177] The father denied this email was harassing and/or intimidating. Asked to explain what he meant by “a living hell” he replied he intended to make complaints about Ms. Swan through legal avenues.

[178] The father said these emails were responding to Ms. Swan’s support of zero communication between him and the mother.

[179] The father denied that he expected Ms. Swan to convince the mother to be agreeable with his proposals.

[180] The father sent another email at 9:11 pm. This email is addressed to Ms. Bell, Ms. Morrow and the mother:

Hi ladies,

I’m sorry that my disdain for Ms. Swan has made me seem like an unreasonable person. In all probability, and if Ms. Swan wasn’t involved, we might be friends. I’m sorry that you all got caught up in this. It has been an emotional journey for me. . .

But don’t worry because I won’t ever give up. I’ll be here forever, I promise.

When your boss decides that Elizas [sic] well being is worth more than her prospective paycheck. . . which I’ll never pay btw. . ever. . . let me know that it’s safe to pursue your clients bullshit conflict. Otherwise I’ll be in touch. Your boss is a twatwaffle and cancer is going to get her eventually. You’re very welcome.

Goodday [sic]

[181] The father denied this email is intimidating, but he agreed it was not acceptable. He was frustrated. He eventually acknowledged that his emails on December 13, 2021 were “somewhat harassing”.

[182] The father acknowledged sending an email to the mother on Christmas Day 2021, at 7:20 pm, in breach of the TO. The email subject line is “Happy Christmas” and reads as follows:

Hello Amanda,

Im [sic] sorry that this is all going on. It’s not what I wanted for Eliza or Cora.

I know that you all had a great Christmas and I was hoping to take part in that in a very small way. I emailed your lawyer a week ago saying that I had set up a ZOOM meeting with for today but you didn’t log on. That wasn’t unexpected but it was still disappointing. I’m sending you this because I don’t believe that you were provided with the information that I gave your lawyer on 21/12/21. I have set up another ZOOM call for 715pm today so that Eliza can say Merry Christmas to me today. Here’s the link. Why can’t she say hi to her daddy today for Christmas. Even if we only get 5 minutes. I’m lease [sic] be reasonable.

The following link is a ZOOM link that allows Eliza to say merry Christmas to me on Christmas Day just before bed. It’s really your choice. I want to be your friend.

[183] The father sent emails to the mother on December 26, 2021 at 11:52 am and 2:34 pm.

[184] In the first email, which is three paragraphs long, the father refers to their “court battle” and tells the mother how he spent Christmas in the first paragraph concluding with:

. . . but I didn’t get to see or even talk to my daughter at all. Be like Elsa.

[185] The father continues in the second and third paragraphs:

At the risk of sounding like a whiner, what’s the problem here.? For over a year I’ve been doing exactly as you stated you wanted me to do to be part of Eliza’s life. We’ve done the supervision and she even had 103 hours of time with me at home so what’s the problem? What more do you need for Eliza to be safe with me? Please let me know. I’ll provide it.

You know that she wants to be in my life so why would you do this to her.

[186] The father states in the second email:

Look I’m sorry that I wasn’t the man that you expected me to be. I was under an incredible amount of pressure back then. You know that. I did my best to be your ally but here we are.

My only concern in contacting you is about Eliza’s well being. It’s really confusing for her to be kept from seeing her dad at this points [sic] of our case. I’m sure that you’ll agree that having all of that time with me previously would have given Eliza the impression of safety given that she was asleep for 2/3 of our exchanges very [sic]Tuesday and Thursday night. But I’m 103 hours she and I never provided you with an opportunity to report malfeasance. That is what makes me sad for Eliza. Could you please make an effort to do what is her best interest and allow virtual contact under your own supervision or someone else’s. We did that before so I don’t see a problem.

When you’re regaling your people of this egregious act of contempt please wish them a Merry Christmas and happiness. For you and the girls too.

When we truly let go of what the past was directing us to can we only find the path to the destiny that has always been.

Merry Christmas.

[187] The father confirmed he seeks joint decision-making with the mother. He was asked how he would communicate with the mother in the event of a disagreement. His response was that he would communicate civilly and that he has demonstrated he can do so.

[188] He acknowledges that the email he sent later on at 7:55 pm is not in compliance with the order. The father then said he had not received the order yet. When challenged that he refers to Thrive Counselling and the CAS he continued to say he was not aware of the order yet. When challenged further that the order was released earlier that day, the father acknowledged he had received it by email but had not yet opened it.

[189] By “living hell” he said he meant he intended to make complaints through legal channels.

[190] He would not agree “Your boss is going to get cancer” is intimidating but agreed it is not acceptable. He was frustrated.

[191] He agreed his email to the mother on Christmas Day was in breach of Justice Chappel’s order.

[192] The father emailed Ms. Swan at 11:08 pm on January 6, 2022. He copied the email to the mother. The email was put to the father in cross-examination. He denied the email breached the terms of Justice Chappel’s order to refrain from making derogatory comments about the mother and her counsel. The father said the email needed to be read in full. He said it is child focused.

[193] I have reproduced the email in its entirety below:

Hello,

Is this why you’re trying to bully me into accept this agreement for $750.00. I’m just wondering why you are financially bullying me out of Eliza’s life. Is it a matter of statute or like before when you had a vendetta against me for your personal treatment by Justice MacLeod on September 8, 2021 who wasn’t in your pocket like Ms. Chappell [sic] and Mr. Pazzaratz [sic].

You do know that Mr. Pazzaratz [sic] comments on that day were a huge breach of trust by the judiciary and in complete contravention of Eliza’s and my right to due process as per the Charter of Human Rights of Canada. Yes, I quoted that correctly and I will also quote 200 + more cases of precedence when we head to court again at trial because your client is a fraud. Your asinine 100’ restraining order is a joke all around the child welfare community of Hamilton, just so you know. You are a joke to the CAS, Strive [sic], CHCAS, several psychiatrist and psych therapists and most of the legal community in Toronto. You thought I was a dumbass but don’t worry, I make sure that your reputation is worthless by the time that we’re done. That process is well underway. You should have worked with me from the start.

By the way, when will I finally get your client’s cooperation in providing me with Eliza’s Birth Certificate so that I can have it changed as she agreed to under Justice Reid’s order. I’ll also need to know, in an email and not only Official Court Documents that your client doesn’t wish to negotiate with me ever. You know, an affirmation from her that she never wants to negotiate with me. We haven’t agreed on that yet though your clients submission at the Settlement Conference seems to indicate that she never wanted to cooperate in Eliz’s best interest ever. I’ve been asking that question for 8 months so it’s probably time that you answer it directly, unless you’re still unwilling to cooperate with me, which is your clients prerogative, thou absolutely detrimental to Elia’s well being in every court. As was emailed to Ms. Bell you have until Monday January 10, 2022 at 2 pm to respond, after that date I will be submitting our case for review by the Supreme Court of Canada for Judicial and Professional Malfeasance which should not be too hard given the Hamilton Superior Family Courts exposure to the environment.

This case should have been a simple determination of parenting time and parentage for Eliza. You alone Ms. Swan have decided to procure your clients obedience in a conflicted environment for Eliza for your clients financial well-being, which financially benefits you as well. Given that there are no financial issues other than support in our case I believe that I won’t have any trouble proving this. Our trial will see to that. Your professional misconduct has been dealt with by me personally immediately following Mr. Pazzaratz’s inappropriate comments about your professionalism at the settlement conference.

You have until 2pm on Monday January 10, 2022 to make your clients intentions aware to me. After that date I will pursue all, including to the highest avenue to make sure that all parties at fault get their just deserves [sic].

You really should have just been honest with me from the start about your client’s unwillingness to be cooperative with me. I get it though you’re a liar. . . I mean lawyer. . .no. . .I meant liar.

Empowered by your personal blatant corruption.

Derek Armstrong.

[194] Later, the father agreed the comments about Justice Pazaratz were not in compliance with the order.

[195] AppClose messages sent by the father to the mother on January 6, 2022 were put to the father in cross-examination. The father stated at 9:30 pm:

I hope you’re happy. You’re [sic] unwillingness to help Eliza have a happy life over your own financial well being will cost your lawyer her career. But you never cared how your actions hurt others . . .especially Eliza. You’re a dolt.

[196] At 9:33 pm the father sent another message:

That [sic] how judicial impropriety works. Did you think you could lie your way through this forever. That’s just idiotic. I’ve sent a proposal to your lawyer that is in everyone’s best interest. You should find out about that.

[197] The father agreed these messages were in breach of Justice Chappel’s order.

[198] The email the father sent to Ms. Bell of Ms. Swan’s office on January 6, 2022 at 9:24 pm was put to him. The subject line reads “Your Jackass Boss”. In the email the father states:

Hi

Please advise Ms. Swan that her efforts to thwart justice for Eliza are being treating [sic] as such the proper authorities have ben notified about the Judicial prejudice in FC-21-404-00 and that Ms. Swan herself has been named as a complicit participant in this corruption of justice for Eliza.

Should Ms. Swan decide to settle this issue of costs for the previous motion hearing as she previously suggested in an email, am willing to settle for $4.00. That is my offer. I understand that Ms. Swan can work the rules better than me but her solicitation of a reprimand for me from Justice Pazzaratz [sic] crossed a very thick line from a human rights point of view.

Please tell Ms. Swan that if she wants to keep accepting the rope that will hang her and her client then she is more than welcome to accept it but I will never succumb to a bully anywhere. I have never and I will not.

Ms. Swan and Ms. Coupland have until 2pm on Monday January 10 2022 to respond to m request for appropriate supervised parenting time made yesterday. In the absence of that response I will be forced to bring more motions before the court at that time.

Please also express to Ms. Swan that I am even more focused on bringing her to [sic] lack of professionalism to light because of Justice Pazzaratz’s [sic] unsolicited comments at the Settlement conference.

I eagerly await Ms. Coupland’s (Swan’s) cooperation in providing Eliza with a healthy coparenting environment or we can see how this plays out.

Derek Armstrong

[199] The father agreed the above email is a breach of Justice Chappel’s order.

[200] Several emails sent on January 13, 2022 from the father’s email address were put to him. He said he did not send these emails and that they must have been sent from the cellphone he gave Cora.

[201] An email sent from the father to Ms. Swan and the mother at 9:21 pm on January 17, 2022 was put to the father. The father said he did not recall sending it. The contents of the email are as follows:

Hey,

Diony [sic] worry. I’m on top of what is Eliza’s well being even though you’re both lost. So here’s the deal Amanda, When your idiot, reactive, incompetent lawyer decides that Eliza’s best interest is what matters. . . that’s when we’ll talk. Until then you’re enemy number one because you’re in Jswans [sic] camp.

When you start thinking for yourself we can talk. Ok child/

Goodbye Jennifer

Big Daddy

[202] He did recall the email he sent to the mother at 9:52 pm on the same day.

Hi Amanda,

I hope that Eliza and Cora are well.

I just spoke to Mary Anne Duncan at Thrive Counselling and she hung up on me when I asked her for proof of your registration, I’m in contact with the director of services because I believe that our lawyer is trying to keep Eliza from her parenting time again. That’s why Brayden pulled out. Because I should [sic] them how they were not a neutral third part. WHATS THE FUCKING PROBLEM LADY.

You’re getting child support and I successfully made me her dad. . . even though you’re in contempt of that order. When does this end for Eliza? I would have had it done for her in April but your as special kind of abuser aren’t you. This doesn’t end until she tells you to stop it. See you in court in a couple weeks. Maybe you should take into consideration what’s best for her and stop deciding to do what’s best for your lawyer.

I would say that I sleep better than you at night except you’re a psychopath. Good luck during the next 13 years of court. That’s what you wanted right.

D

[203] The father agreed the above email is a breach of Justice Chappel’s order.

[204] The father says the breakdown with Thrive Counselling was because he asked what the wait time would be after temporary restrictions due to COVID-19 were put in place. Thrive refused to answer and he needed the information to return to court.

[205] Emails from Mary Anne Duncan, coordinator family visiting program at Thrive were put to the father. One is dated December16, 2021 and one is dated January 17, 2022. The father had reached out in December as to the wait time.. In the email dated December 16, 2021 he was told it was two to three months. The father was provided a fact sheet on how to access the service, information on fees and an application form. He was told that to get on the waiting list he had to complete and send in an application.

[206] In the January email, Ms. Duncan stated she was following up on their telephone conversation from that afternoon. She again enclosed an application form that she advised needed to be completed and returned to her. She confirmed she had not received the application from Mr. Armstrong and had checked her junk emails and deleted emails to make sure she had not missed it. Ms. Duncan explained that she could not provide a date when the service would return to in-person visits. She pointed out that the sooner she had the application the better because they could offer some virtual service to families on the waiting list where appropriate. She also responded to a suggestion that she was colluding with Ms. Swan, who she said she assumed Ms. Swan is the lawyer representing Ms. Coupland and continued to state it was not uncommon for her to communicate with parties’ lawyers about the service and this fact did not impede her ability to be a neutral third party.

[207] The father was not satisfied with the answer in the January email. The father agreed it was fair to suggest he wanted something concrete as to when in-person visits would resume, and he was being told that it was not possible.

[208] He said that he was aware that Dalhousie Place was available and that because Ms. Swan had insisted on using Thrive in several motions, he thought there might be collusion.

[209] The father sent six emails to Thrive on January 17, 2021 after the email was sent to him by Ms. Duncan at 4:38 pm on that day. The emails were sent at 5:32 pm, 9:25 pm, 9:30 pm, 9:37 pm, 10:07 pm, and 10:14 pm. The father sent a further email on January 18, 2021 at 1:02 am.

[210] In the email sent at 10:07 pm the father said, “can you stop being affected by male violence toward you and treat me with dignity finally”. The father was asked to explain what he meant by this statement. He said he was referring to male violence that could have happened to Ms. Duncan and that was why she was treating him the way she was during their telephone conversation. He confirmed that Ms. Duncan never told him she was a victim of male violence and there was no evidence to support this conclusion. He just made an assumption. The father described Ms. Duncan as offensive and accusatory with him during the phone call. She raised her voice but did not use profanity.

[211] In the father’s application for Thrive (included with this email) he wrote “Bullshit court order” as the reason for the referral.

[212] The father said he sent 5 emails to Thrive within about 45 minutes on the evening of January 17, 2021 to make sure he was being understood.

[213] The father reluctantly acknowledged he was not allowing an opportunity for response between his emails because he was sending them late at night. He expected to receive a response in the morning.

[214] He described Ms. Duncan as treating him like a criminal by her language and air.

[215] The subject line of the email sent at 1:02 am is “this was sent to your boss tonight. . . just saying”. The father could not explain why he said this in the subject line.

[216] The father received an email from C. Vieira-Martin at 9:30 am on January 18, 2021. Ms. Vieira-Martin stated there was an issue with his paperwork, in that he had not sent in the application until January 17, 2021.

[217] The father denied there was any issue with his paperwork.

[218] Ms. Vieira-Martin stated a date for in-person visits to resume could not be provided because “the agency has no ability to predict the course of the pandemic or public health safety guidelines”.

[219] She further stated:

There is a concern about the Program Coordinator [Ms. Duncan] and potential bias. Thrive does not tolerate abusive and harassing behaviour towards our staff. The Program Coordinator was relaying information around the current status of your registration and potential for visits. Your response is considered harassing, inflammatory and unwarranted.

Respectful cooperation with program requirements is required for participation in our services.

We will not be proceeding with your program registration at this time as it does not appear that you are able to comply with this basic and essential requirement.

[220] He acknowledged that he had no information that Ms. Swan had communicated with Thrive.

[221] He agreed that his comment “be friendly with me or with your “friend Ms. Swan” in his January 17, 2021:

It’s your call if you want to be seen as a lawyer follower or working with the dad that is more than capable of taking care of his daughter (See Brayden files). Your call. Be friendly with me or your “friend” Ms. Swan.

[222] The father stated he did not see his emails as harassing or abusive. He was asked if there was anything he would change about his behaviour with Thrive. He said had Thrive been able to provide services, he would not have become as frustrated with them as he did.

[223] The email sent by the father on February 7, 2022 at 7:08 pm to Ms. Swan requesting the mother’s cooperation in a zoom call was put to the father. The father addressed the email to both Ms. Swan and the mother, but it was only sent to Ms. Swan. The father said if he did not hear from the mother, he would present this as evidence of Ms. Swan’s wish to waste the court’s time. He further stated:

Please, please, please, implore your client to finally be friendly after 502 days of Eliza’s ordeal (that’s Justice Gordon’s math). I’ll be logged on at 745 pm today 7/2/22to SEE my Sweet Beautiful Amazing Wonderful Lovely Smarty Pants Bimpy Gurl [sic]. I hope that your client logs on too this time, and that if it doesn’t work, that she’ll have the presence of mind to FaceTime me so that Eliza can get her daddy time.

Much peace and love to you,

Derek Armstrong

[224] The father wrote an email to Ms. Swan and copied to the mother on February 7 at 7:20 pm saying that Ms. Swan would have to make sure that the mother unblocked all of his email addresses for this to work. He said “all of them are tied to my zoom account. Sorry Amanda.”

[225] At 8:12 pm the father sent another email to the mother not copied to Ms. Swan, yet he seems to be speaking to Ms. Swan, he says in part:

. . . I’m convinced that you think that I’m upset with your client, but I’m not. I’m pissed with you personally. I realize from years of exposure to the corrupt family justice system that all I have to do is make sure that your professionalism is in question. Which I have done. That’s the only way that an SRL gets one over on a leech like you.

[226] The father continued in the email to assert that he is a good dad who has “taught all of the children to swim, skate, ride a bike, and most importantly, how do [sic] properly deal with insignificant conflict.”

[227] The father further stated:

In Eliza’s best I am making a final plea for your clients [sic] amicability. It is now up to her to make arrangement for Eliza’s unsupervised parenting time with me. I didn’t ask for friendliness or for cooperation. Only AMICA-fucking-BILITY. For once in Eliza’s life from your client so that Eliza and I can finally be free of her obsessive control and cohesion.

[228] The father’s final line in the email is “Much love and admiration”.

[229] The father messaged the mother through AppClose at 9:48 pm on February 7, 2022 stating:

Hey. I’m not sure what what down tonight but if that was your lawyers play then she’s grasping at straws. Let me know tomorrow by 2pm about how Eliza gets her unsupervised in person parenting time with me or you’ll be held in contempt along with your lawyer.

[230] The father said what he meant was that unless the deadline was met, he would bring a motion to change Justice Chappel’s order.

[231] In an email to Ms. Swan, Ms. Bell and Ms. Morrow on February 10, 2022 at 10:30 am the father stated, in part:

As you are aware, unless your client decides to negotiate a change in your friend Justice Chappel’s order then Eliza has no parenting time with me. The order clearly states that Eliza deserves a relationship with me as have all the others. Please seek that your clients makes an effort to allow Eliza to have reasonable parenting time with me and let me know her response in 24 hours. Failure to observe this deadline will result in our client being CC’d on all requests made to you in further to ensure that she is getting these requests in a timely manner.

[232] The father’s email of February 10, 2022 was in response to an email sent from Ms. Swan early that morning. Ms. Swan was responding to the father’s email of February 9, 2022 at 7:36 pm in which he asked her to confirm in writing she continued to be retained by the mother.

[233] Ms. Swan stated in her email that she continued to be retained and if that changed, she would file a Notice of Change in Representation. She also stated:

Further, please stop emailing my client directly. You have been emailing her, while addressing me, so perhaps you can ensure that you remove her email from any and all correspondence that you send. This also means not messaging her through AppClose. Again this is in accordance with Justice Chappel’s order.

[234] The father said he continued to try to communicate directly with the mother despite Justice Chappel’s order because he did not believe Ms. Swan was providing his emails to the mother. He said he made this assumption because of the combative communications he was receiving from Ms. Swan. He acknowledged he had no evidence to confirm his suspicion. He continued to copy the mother on his emails to Ms. Swan’s office. He agreed he was in breach of Justice Chappel’s order.

[235] He was asked if he recalled the police telling him to stop communicating outside of what is deemed acceptable by Family Court. He responded the police told him to keep his emails professional. He told the police to keep their nose out of their family matter and any further involvement would be considered harassment.

[236] He denied that the police were reviewing Justice Chappel’s order with him.

[237] The father agreed that it is clear in the occurrence report that the police were aware of Justice Chappel’s order.

[238] The father said when cross examined about his emails requiring the mother’s proposal for his in-person unsupervised parenting time, that his position was after Thrive was unwilling to provide service, Eliza’s time with him did not need to be supervised.

[239] The father acknowledged he continued to breach the Order after his discussions with the police and Justice Gordon’s order. The father said he did so because he wanted open communication in his and the mother’s co-parenting plan.

[240] One time after the Restraining Order was granted on June 2, 2021, he attempted to communicate with the mother to express his condolences at her father’s passing. He was aware it was breach of the restraining order.

[241] An occurrence report from the HPS dated March 18, 2022 was put to the father. He said the report is unreliable. He said he had 2 or 3 drinks that night. He denied that he was belligerent and that he pulled his pants down. He denied showing bruises to the police. He does not recall throwing food at the pizza store clerk. It is not possible he was so drunk he can’t remember, he asserted. The report states the video collaborated the store employee and owner’s story. The father says he was assaulted that night. No charges were laid against the father or the employee and store owner.

[242] He prepared a complaint OIPRD regarding the police malfeasance because they did not investigate the case and were actively “tanking” it so they would not have to investigate. He did not file the complaint.

[243] He sent an email to Ms. Swan and copied it to the mother on February 14, 2022 stating, “I am no longer willing to support Ms. Chappel’s order so we will require a new one”. He said he meant he would go back to court.

[244] The father’s email to Ms. Swan and her staff dated March 9, 2022 and sent at 10:30 pm was put to the father.

Ms Swan,

I received your email though I have not opened it because I did not send those emails to you. I would never include you in matters that weren't assigned to you by LAO and I apologize that my ex wife decided that you should be included. Please ensure that your client returns my registered Apple device, forthwith, so that we may avoid these instances in Eliza's best interest going forward.

As for the matter of Eliza's Parenting time, I will point out that your client has already committed to the court that she delivers her child, Cora Little, to Matthew Little on a by weekly basis to his home in Cambridge Ontario. I will also point out that Dalhousie Place in Brantford is half of that distance and only 12 minutes more travel than Thrive Counselling in Burlington according to Google Maps. Therefore, your client is now in contempt of this most recent order by Justice Chappel, as well as that of Justice MacLeod and Justice Reid before.

In speaking to your clients contempt of the orders, I will not be pursuing her for that to her benefit but I will instead continue to pursue your disbarment and/or disinclision [sic] from a Bench Assignment forever because you are actively supporting this abuse against my daughter. That was your choice Ms. Swan. We could have worked amicably through this but you decided to get a lovely LAO payout instead.

Please understand that I tried to gain your cooperation in mitigating what my ex-wife and your client have brought into your professional life. I knew that they would do this but you didn't want to mitigate it either it seems. It was never my intention to be in conflict with you. Initially, I had hoped to garner your support in allowing all 5 of my children to see a peaceful outcome in Eliza’s case. But here we are at your behest.

As per your February 14 2022 email, I am still waiting for your clients solution to ending the abuse that she is perpetrating against our daughter. What is her solution? Does she want one? Does your client really want our daughter to have a relationship with her father like she didn't? I will also include the Zoom Call invitation that she sent me on March 7 2022 that resulted in nothing as was the case for all of the previous Zoom call invitations from her, every Monday since January 14 2022.

Notably, I will not be a partisan to Eliza's abuse anymore. If your client would like an amicable resolution for Eliza I am receptive to that for 24hours, After that we will be pursuing this in court for however many more years as it takes to get Eliza her Equal and shared parenting time with each of her biological parents. I promise to make sure that you, Ms. Swan, are not a part of that.

You should also know that the LAO is investigating your malfeasance having to do with my case in the OCJ as well as the rest of your unprofessionalism that led to the LSO professional Complaint against you in December. Please keep in mind that I am not upset by Ms. Coupland’s actions but I am appalled and disgusted by yours. Should you decide to reverse your course of action in Eliza's case I am more than willing to discuss withdrawing my complaint against you. Should you desire that you can reach me anytime at my regular number.

Your client is always encouraged by me to seek a friendly resolution in Eliza’s best interest and has been included in this email because you’re untrustworthy, Ms. Swan I am very confident that this message would not have reached her unless I sent it to her directly. Please finally encourage your client to stop this nonsense for Eliza and choose a more peaceful path without your unnatural influence.

Respectfully to Amanda, Maddison, Colleen, but not you Ms. Swan,

Derek Armstrong

[245] He said he meant that he would keep the process going for years and the mother would not be able to afford to retain Ms. Swan. He asked Legal Aid Ontario (“LAO”) to investigate because he believed Ms. Swan was giving legal advice to Ms. McNaueal. His belief was based on his experiences with Ms. Swan and coincidences in the two cases.

[246] He filed a professional conduct complaint with the Law Society of Ontario (“LSO”) because of Ms. Swan, the mother’s lack of willingness to change orders that didn’t work and her unwillingness to schedule parenting time as soon as possible and Ms. Swan’s scheduling of a hearing on the same date he had a hearing in Kirkland Lake.

[247] He has not paid the $5,000.00 nor the $500.00.

[248] A Police occurrence report regarding domestic disputes with then girlfriend, Jaryden Cooper dated July 28, 2022 was put to the father. He denied the contents of the report.

[249] He says the police “grounded” him by throwing him to the ground and attacking him. The police “blew through the apartment door” when he opened it just a crack because of his dog. He said he would get his girlfriend and the door automatically closed. He denied the statement attributed to him “get out . . . taser my balls.”

[250] The father denied that he refused to identify himself. The police returned 40 minutes later because his girlfriend would not calm down, so the noise continued. The father denies yelling obscenities. The father was handcuffed, arrested and placed in the cruiser. He denied that he resisted arrest. He had to stay at the police station until he sobered up. He said he had only 3 or 4 drinks.

[251] The father was fined for being intoxicated in a public place (the hallway of his building).

[252] An Occurrence Report dated August 11, 2022 was put to the father. He said Ms. Cooper became irate and was yelling on that day. He asked her to leave. She would not so he called the police. He denied he had been drinking that day. He was having a beer when the police arrived. He denied being confrontational with the police.

[253] The Crown disclosure from Kirkland Lake regarding the charge of criminal harassment was filed as Exhibit 20. The mother’s counsel went through the disclosure in her cross-examination.

[254] The Information dated August 8, 2022 states that between February 1, 2022 and March 9, 2022 without lawful excuse and with intent to harass repeatedly communicated by emails.

[255] It is noted that the father has been sending dozens of unwanted emails described as “overly excessive” on the edge of criminal threats.

[256] The father said he did not recall how many emails he sent to his former wife, Trish. The emails are attached to the crown disclosure. The father said he has not gone through them. He is not aware of 17 incidents as set out in the disclosure.

[257] The Crown synopsis states:

On March 9, 2022 the victim Melodie McNaueal came to the Kirkland Lake OPP with a harassment complaint involving her ex-husband/accused, Derek Armstrong. Since approximately February 1, 2022 he has been sending dozens of unwanted emails. Copies of those emails were handed over to police for review. These emails were found to be overly excessive and some even on the edge of being criminal threats. Armstrong is not showing any signs of ceasing despite being told numerous times by McNaueal to stop. McNaueal only keep [sic] this open line of communication since they have a 16yr old child in common. A warrant is being requested for Armstrong.

[258] The father denied that his emails to Ms. McNaueal were “overly excessive and on the edge of criminal threats”.

[259] When he and Ms. McNaueal separated, in 2013, he was arrested and charged with assault. The charges were withdrawn at Ms. McNaueal’s request. His 17-year-old stepdaughter was being rude to him, and he asked her to leave the house. Ms. McNaueal called the police. The allegation was that he had been physical with his stepdaughter. He denied yelling, being physical with her and using obscenities.

[260] The father thought that Ms. Swan was giving advice to Ms. McNaueal. He described Ms. Swan in an email dated March 7, 2022 as a “hateful despicable woman”. The email was sent to Ms. McNaueal, Alison Fantin, Ms. McNaueal’s former supervisor at Kirkland Lake District Composite School (“KLDCS”), the mother and Ms. Swan.

[261] I set out below the significant passages in the father’s email, in my view:

Hi Trish and Amanda,

Trish,

I’m going to need confirmation that you want to come to an amicable conclusion about our financial issues in the next 7 hours and 24 minutes. It’s what is fair to our kids and to Amanda and Cora and Eliza. You will absolutely be portrayed as the crappy human being that you are to all of those people into perpetuity. Forever. Regardless

Trish, Please could you finally be amicable about the dissolution of our marriage. It has become very apparent that you are acting in bad faith as has Amanda and I’m asking that both of you finally become amicable for once in the matter for the sake of all of the children.

I have enough proof from Trish tonight to prove it so you both might as well try to save Ms. Swan from her illegal activities. Maybe the kids can get some normalcy for it or at least they can move on from that hateful, despicable woman.

My only interest is in having a loving relationship with all of my children into longevity and I am absolutely not opposed to destroying anyone that gets in the way of that after the last 6 years of hell for me with the baby snatcher and the boys (3 yrs for Eliza with Amanda) Ms. Swan, Trish, Amanda….

. . . Ms. Swan’s LAO payment is only making this more difficult on the kids. That’s why he’s so in vested in our kids “well being”. You 2 idiots brought this to her and she saw dollar signs as well as our kids misfortunes. But Ms. Swan didn’t care about the misfortunes of our kids only the CASH PAYOUT. As long as she can secure payments for the court . . . “I know Ms. Swan to be a fine litigant” (Justice Pazaratz 22/12/2021 HSJC who is now under judicial review for that comment) and herself then you care about your child. Right ?? Wrong. Abso…fucking…lutely WRONG. Anyone that thinks that’s ok is a . Period. So says the law. . . .

. . . Ms. Swan,

Please let me know when your client is going to allow Eliza to have a relationship with her daddy? It’s what she’s been ordered to do and is what is fair and just for Eliza’s best interest.

Carter and Jack can decide for themselves.

Get on Ms. Coupland soon Ms. Swan.

Derek Armstrong

You both need serious help coparenting help. Garbage human being. All three of you.

Ask the kids in 18 years. They’ll tell you.

[262] He states he wants his children (the boys) to move on from Ms. Swan. Ms. Swan asked the father “how do I have anything to do with your children?” he responded that he thought she was assisting Ms. McNaueal.

[263] Asked what he planned to tell Jack and Carter he said, “the truth” and their mother perpetuated the conflict between them and him.

[264] He acknowledged the email is not friendly and there are profanities throughout. He agreed it would be upsetting to receive it. He was asked “how is someone supposed to co-parent with you when you are sending emails like this” he answered was “by choice” because it is right for the children. He acknowledged the email was not promoting co-parenting but denied it was frightening.

[265] On March 7, 2022 Ms. Swan sent an email to both the father and Ms. McNaueal stating that she had received emails from both of them the day before and that she is not retained by Ms. McNaueal. She asked that they remove her from all correspondence between them.

[266] In the March 8, 2022 email, the father says he will show all communication between him and Ms. McNaueal and the court papers to Jack and Carter someday. In his testimony, he added the caveat “should they ask”. He also stated in the email “they need to know what kind of person their mother is”. When asked what he wanted them to know he said he thinks she is a psychopath. He believes she is a psychopath because she has untreated and unresolved Post Traumatic Stress Disorder (“PTSD”). If the children ask him about the separation, he will tell them so they can heal from the trauma.

[267] The father tried to have the counter staff at the Family Court swear his financial statement he needed to file in the Kirkland Lake court case. He knows Ms. Swan’s office is across the street from the courthouse and that she socializes with the courthouse staff. He deduced this fact because of the resistance he has met from the staff and the fact that they treat him “like he is a pain in the ass”.

[268] On March 8, 2022, at 8:42 pm, the father in an email to Ms. McNaueal, he called her a “despicable cunt”. The father stated:

The staff at the SCJ Family Courthouse here wouldn’t take my Financial Statement to be sworn as is today and I can’t take anymore tine off work. The courthouse thing might have something to do with Ms. Swan’s office being right across the street from the courthouse and because there was a slight discrepancy of my 2019 NOA. Swan & Saenz Law’s Office actually looks down into the windows of the courthouse’s public counter. I know from the zoom calls. Not to mention all of the lawyer/legal themed bars in a 2 block radius of all three courthouses in Hamilton. Anyway, wreck her career for your personal benefit. I don’t care either way.

The point is that your latest efforts to thwart Justice for everybody, Eliza included (you despicable cunt)are done after our next court date. . .

[269] On the same date at 8:49 pm the father sent another email to Ms. McNaueal stating:

. . Go Fuck yourself Putin

Ps. Yes the boys will be shown this too act accordingly

[270] At 9:02 pm the father emailed Ms. McNaueal again stating:

Please be aware that all of your communications and action/inactions over the past 2 days is all the proof that required to show that professional malfeasance is being perpetrated by Ms. Swan.

[271] Asked how he expected Ms. McNaueal to coparent with him when he calls her a “cunt” the father responded, “I don’t”. He added “it would have to be her choice to be amicable for the sake of our children”. He agreed his communication with her does not promote amicability.

[272] In an email to Ms. McNaueal dated March 9, 2022 at 9:04 pm the father ends the message with “die, Derek”. He said this was a typo and he intended to write “bye”. He denied this was a threat but agreed it was extremely offensive.

[273] On January 23, 2022 at 12:29 am the father sent an email to Ms. McNaueal. The father outlines his plan for reunification with Jack and Carter. He states:

How it will happen is that I’ll have an awesome relationship with Eliza soon, once Amanda becomes reasonable, that will be used to change Carter’s unhealthy opinion of me, then Jack will come around as I apply gentle pressure using the influence from Carter’s awesome relationship with us in his adult transformation to a successful and well adjusted adult in his thirties.

[274] When he has prioritized his relationship with Eliza then he will turn to Carter, and he believes Carter will encourage Jack to have a relationship with him again.

[275] The father was charged with careless driving on August 5, 2018. He was sleepy and drifted into a guardrail.

[276] A letter from the YWCA access centre dated January 17, 2023 was put to the father. The letter is addressed to the father and is from Daniella Bozur, manager supervised parenting services.

[277] Ms. Bozur states:

Following your daughter’s departure from the YWCA you were speaking to another parent. In a raised voice, you stated “I’ve had it up to here with this fucking crap. I don’t know if you’ve noticed but it’s getting worse and worse each time” referring to Eliza crying before leaving the visits. You said that you were intent on getting things sorted out as soon as possible. The other parent said in reply “I feel for you man. I’ve been doing this for 5 years now.” You shook your head and replied “oh no were not going that long no fucking way. She’ll be dead before that happens.”

Supervised Parenting Services takes these comments very seriously. As a result, Hamilton Police Services were contacted. These comments are not acceptable and based on our policies we have a responsibility to report such comments to ensure safety.

At this time, we will continue to provide services. However, should there be further concerns around safety or policy breaches, your service may be suspended or terminated.

[278] The father said he was talking to the supervisor not another parent. He did not say “she’ll be dead” but rather “I’ll be dead” because he believes the stress of the situation will cause him to have a heart attack. The combativeness from the mother and the stress of court will cause him to die of a heart attack.

[279] The father’s financial information was reviewed in cross-examination. His pay statement from October 20, 2022 shows year to date income of $52,000.00 approximately. His Line 150 income (confirmed by his Notices of Assessment) over the last three years is:

a. 2019 $63,383.00

b. 2020 $59,590.00

c. 2021 $52,807.00

[280] The father is aware of that pursuant to the TO made on consent and dated August 24, 2021 by Justice Reid that he is to pay child support commencing September 1, 2021 of $315.00 based on estimated income of $36,078.00.

[281] He acknowledged that he did not make any child support payments during the period from the parties’ final separation until the date of the TO (September 22, 2020 – August 31, 2021.)

[282] He has not made regular payments under the Temporary Order. He says he has not received anything from the Family Responsibility Office (“FRO”) and does not think the order is being enforced.

[283] There is a CAS case note dated December 15, 2021 from Jessica Nicholson regarding her telephone call with the father that day. She notes the father is upset. She further states:

Says Amanda and her lawyer got what they wanted from court. In the order it says that he can get supervision through the Society. Worker advised that the Society only provides supervised access for children who are in the Society’s care. Derek says he wants worker to put Eliza in Society care. Says Eliza is being abused by his alcoholic coke-head ex-girlfriend.

[284] The father wanted a home visit. He said the next court date was December 21, 2021 and if he did not have his home visit by that date, he would pursue an investigation through the CFSRB. The worker told the father the Society cannot force the mother to send Eliza for a home visit. The father said the Society was not taking his complaints seriously and that it was like the courts want him to be angry and do something stupid.

[285] Ms. Nicholson further recorded in her note:

Derek said the abuse to Eliza is being sanctioned by the court because Amanda told them she is afraid of what he might do to her because he hasn’t seen Eliza in so long. Derek said he wants to do [sic] know if he has to beat the crap out of Amanda before anyone will take him seriously. Derek repeats he wants the Society to supervise his visits with Eliza. (Emphasis added)

Worker repeated that the Society supervises access for children in care. Worker mentioned that the order also stated an alternative organization to supervise access. Derek cut worker off and accused worker of “working for Amanda”. Derek said worker already spoke to Amanda before speaking to him and that worker is taking Amanda’s side. Worker advised that Amanda sent worker a copy of the endorsement yesterday. Worker advised that she has not spoken to Amanda about the endorsement. Worker advised that she glanced through the endorsement before she called Derek this morning to familiarize herself with the current situation.

Derek repeated that he is frustrated. Derek said he wants a call from worker’s supervisor today or he will be filing a complaint with the CFSRB. Worker advised that she will notify her supervisor of Derek’s request for a call.

Derek said he wants a letter from worker stating anyone of the following:

Worker will bring Eliza to his home for a supervised home visit

Worker will not be bringing Eliza for the home visit because Amanda is refusing to let worker bring Eliza

Worker will not bring Eliza for the home visit because worker is impeding the investigation.

Worker advised that she is off for the next two weeks and repeats why she cannot force a visit between Derek and Eliza at his house.

Derek says he wants the file to be transferred to someone else, wants the investigation to start it over “give it to someone who knows what they’re doing”. Says worker is not taking his concerns seriously enough. Derek repeats he wants the home visit scheduled or he wants a letter and he also wants worker’s supervisor to call him today or he will be moving forward with a complaint. Worker advises that it is Derek’s legal right to move forward with complaint if he chooses to. Derek hangs up the phone on worker.

[286] The father said his concerns were not being taken seriously because the mother was abusing the child when she did not return her to the father for visits after November 21, 2021. He wanted the Society to investigate this abuse and to enforce his parenting time. He was frustrated and believed he was being antagonized so that he would do something stupid.

[287] Asked what he meant by something stupid the father responded, “just what it says – colloquially in conversation.”

[288] He believed the court was sanctioning the child abuse because he was not heard in Justice Chappel’s court and the order she made was not fair.

[289] He said what he meant by “beating the crap out of” the mother was that the only thing the Society takes seriously is domestic violence.

Re-examination

[290] The father revised his answer with respect to the email dated September 28, 2022 marked as Exhibit 50. He says he never sent this email (to Ms. McNaueal and copied to the mother).

[291] In the police occurrence report dated September 30, 2022 (the mother contacted police because the father had breached the terms of contact) the father told the police his phone had been hacked.

[292] The father says Ms. McNaueal has exaggerated the period during which he was sending her emails.

[293] The father says Ms. McNaueal has manipulated Carter against him and that his relationship with both of his sons has been impacted by his relationship with their mother.

[294] The father said the antagonism he has experienced has contributed to the degradation of his ability to remain amicable.

[295] The father believes he and the mother can successfully co-parent Eliza. A solid order will allow he and the mother to put the conflict behind them and after a significant period of compliance with the order.

[296] The father says his ability to be patient and to control his outward expression of frustration has been impacted by all the obstacles put in his path: the mother, Ms. Swan, Brayden, the court.

[297] The father continued that conflicts are rarely one-sided, and he believed it important to take responsibility.

[298] On September 22, 2020, the day the parties separated, he messaged the mother and hoped she would take responsibility for her attack on him and her excessive behaviour. The mother did not respond. She locked the door to the house while he was on his walk to “cool off”. From this point the dynamic was that the mother required absolute obedience. If he did not comply exactly with what she demanded she retracted from any meaningful conversations or discussions. Her withdrawals from conversation/discussion have added to the dynamic existing today. He had no contact with Eliza until Justice Donohue’s order in April 2021. The mother blocked him by text, email and Facebook. He reached out to her family respectfully and was met with resistance from all of them.

[299] The father was dismissed from his job in May 2021, before he could quit. There was a personality issue. The work environment was toxic. He was given two weeks pay in lieu of notice.

[300] The father injured his foot and was unable to walk for eighteen weeks. He was out of work from February 2017 until April 2018.

[301] The father described himself as being in a “quasi fugue” state due to the following circumstances:

a. The injury to his foot in early 2016;

b. The car accident when he hit the guard rail on August 5, 2018;

c. Being out of work from February 2017 until April 2018;

d. Ms. McNaueal withdrawing the boys from him in 2013 and the ensuing court action;

e. The move to Hamilton which was a difficult decision because he did not want to leave his boys;

f. Stress of travelling every other weekend to Kirkland Lake to see the boys;

g. The DUI in February 2019;

h. The COVID-19 pandemic;

i. The mother’s decision to dissolve their relationship; and

j. The mother’s denial of his visits with Eliza in 2021 and pursuant to Justice MacLeod’s order.

[302] The father said the emails he sent were around an event that would re-open a traumatic wound. He takes full responsibility for the emails he sent and what he said in them.

[303] The father said French is his first language and that at times he was not communicating what he intended because of this fact.

[304] Yet in his email to Ms. Swan dated November 9, 2021 he stated:

Should you require it I can translate that to French or Spanish for you or I can recommend an excellent ESL court for you to help with your reading comprehension skills.

[305] The father says he is remorseful about the emails and understands why the mother may not want to communicate directly with him.

[306] He has sought help through counselling. Currently, he is on a wait list with Hamilton Catholic Family Services. He attended a walk-in clinic for counselling for three sessions after Eliza was born and sporadically since. He and the mother attended couples’ counselling for three sessions with a Dr. Lynn Purvis. Dr. Purvis got a job somewhere else, and the mother did not want to go on with someone new. After that point they were trying to reconcile.

[307] He had telephone sessions with Catholic Family Services between March 2021 until July 2021 as in-person was not possible due to COVID. The sessions were one hour long, and he met with his counsellor, Emily Alton, eleven times.

[308] Since the summer of 2022, he has found he can implement the strategies that he has learned.

[309] His family doctor has given him referrals for counselling at his request.

[310] He has never been diagnosed with a mental health issue.

[311] He did not send the email dated September 28, 2022. He checked his sent folder on September 29, 2022 and noticed an email sent to the mother and Ms. McNaueal. He did not recognize it. He took a screen shot of it and deleted it. At work he saw a Facebook post he did not recognize and took a screen shot of it and deleted it. He called the HPS to say someone is sending emails and posting on Facebook as him.

[312] The police told him to delete his accounts. When he said that was excessive the response was if you don’t you will be arrested so he unlinked the accounts. He told the police about the phone he gave Cora and the police said they were advised she does not have it.

[313] He had a friend coming for the weekend from Alberta, it was a long weekend because of Truth and Reconciliation Day on September 30, 2022 and he thinks the mother and McNaueal planned to have him in jail over the long weekend to ruin his plans and they sent the email and post using the phone he gave Cora.

[314] The father says the occurrence report dated July 28, 2022 cannot be relied upon. The chain of events set out is inaccurate. During the first visit from police there was no “grounding.” His girlfriend answered the door and talked to her and told them to keep the noise down. The second time the police came they blew the door open and grounded him and put him into the cruiser. They did not arrest him which he says is unusual when a person is grounded. He agrees he was intoxicated in a public place and was arguing with his then girlfriend. He was grounded one other time by police when he was arrested for assaulting his stepdaughter in 2013.

[315] The occurrence report at p. 115 cannot be relied upon either because again the chain of events is not accurate, and things were omitted. It was a disagreement between the father and staff because he was under the influence, but he was not driving. Rude comments were made to him, so he tossed his food on the counter and went to walk out of the store when three people attacked him punching, kicking and threw him into a car – he thought he was going to die. He did not have his phone so went home to get it and called 911. He went back to the corner of King Street and Gage Avenue to wait for the police. The police were there when he arrived. They told him to get the “fuck out of here”. The police said they would not be taking a report from me. The father said he had been attacked and assaulted yet he was cautioned that if he chose to give a statement he would be arrested and charged with a hate crime. So, he went home.

[316] The father said the police are lying in the report.

[317] The father’s reference to “those people” meant his upstairs neighbour who complains about his dog.

[318] When Amanda was in passive labour, the father said he had only one beer but had been working continuously for two weeks twelve-to-sixteen-hour days because he was planning to take unpaid leave after the baby was born. Because he was so tired it may have seemed he was under the influence.

Brayden

[319] The father had 8 supervised visits through Brayden between April 2021 and August 2021. In August the agency advised no safety issues were observed during the visits, however, the agency was not willing to work with the family any longer due to the difficulties experienced when attempting to work with the father. The difficulties included:

a. the father’s scheduling of visits and then canceling at the last minute,

b. his agitation and confrontational behaviour when his last-minute requests for visits could not be accommodated;

c. his repeated request that the agency confirm in writing it was not working for the mother; and

d. his demands for documents and explanations and his complaints that the agency had not addressed situation to his satisfaction.

Peter Joshua Lowry

[320] Mr. Lowry is the father’s neighbour. They have known each other two years. Mr. Lowry has three children: two boys ages 20 and 18 and a daughter, Katherine or “Kat” who is 4.

[321] The father and Mr. Lowry socialize occasionally and have set up playdates with their daughters. Mr. Lowry described the father as friendly, outgoing, polite and hospitable during the play dates. Mr. Lowry has a good relationship with the mother of his sons and the mother of his daughter. He believes he has a good co-parenting arrangement with both of his former partners.

[322] He would ask the father to assist him with childcare if needed when Kat is in his care.

[323] Mr. Lowry is aware of the father’s DUI convictions.

David Russer

[324] The father and Mr. Russer met through their employment in midsummer or the fall of 2019. Mr. Russer described their relationship as not really close but good friends until September 2020 when they became really good friends.

[325] Mr. Russer lives in the neighbourhood of the residence the parties shared until they separated in September 2020.

[326] The father visited Mr. Russer’s shop to work on woodworking projects and other projects. He often brought Carter and Cora with him.

[327] He met the mother maybe once at a Tim Hortons in Stoney Creek.

[328] Mr. Russer saw the father in the community with Eliza. He never saw the father being inappropriate with her. The father never appeared to be under the influence of alcohol or substances during those occasions.

[329] The father stayed with Mr. Russer after he was “kicked out” of the house on September 22, 2020 for a few nights.

[330] After the father rented the room on Barton Street, he continued to visit Mr. Russer and his shop working on projects for Eliza and Carter.

[331] The father asked Mr. Russer to describe his demeanor to the mother. Mr. Russer replied the father was frustrated not mad.

[332] The father and Mr. Russer would have a beer or two at the end of the evening but not when they were working in the shop and not if they had to work the next day.

[333] The father brought Eliza to the shop when he had unsupervised visits with her on one occasion. After that he did not bring her again because as Mr. Russer stated, “Amanda wouldn’t let you see her”.

Mother’s case

Mother’s evidence in chief

[334] The parties’ relationship began in mid-August 2016. They met on an on-line dating site, but the mother knew of the father before in the small town of Kirkland Lake. The relationship was platonic at first. She was moving to Hamilton in a couple of weeks time. She never intended to have a long-term relationship. It was more of a summer fling.

[335] The mother was born and raised in Hamilton. All of the mother’s family lives in Hamilton. Cora’s father lives in Cambridge. The mother planned to further her education at Mohawk/McMaster. The decision to move home to Hamilton was a joint one with Cora’s father. They had been discussing it for months both wanting to move home to be closer to their families.

[336] Just before the move, the father said he wanted to pursue a long-term relationship and the mother agreed to give it a shot.

[337] The father had his sons in his care every other weekend. In the beginning she saw the father about every six weeks when he came to Hamilton.

[338] They did not see each other that often but when they did the relationship was good. The mother thought things were “quite perfect”.

[339] His visits became more frequent after he lost his job in February 2017. When he began to visit mid-week and stay longer the mother started to notice his drinking. He drank every night. He was frustrated with his job loss and financial issues. His go-to coping mechanism was to drink. He would become agitated with the mother, and they had silly arguments. The father would leave in the middle of the night drunk and drive back to Kirkland Lake.

[340] She learned to disengage or not engage in the silly arguments. She learned from his point of view you were either with him or against him. It was a problem if she disagreed with him. There was not an opportunity to reach an understanding.

[341] The incident with Jack in March 2018 was a catalyst that pushed things into a new dimension. In Kirkland Lake, the father played hockey on Friday nights and then went drinking with the team. She and the father were texting as he was walking home. She got a text message there had been conflict with Jack and then she saw the video that Jack posted on Facebook.

[342] The video was entered into evidence.

[343] After this incident things escalated significantly. The father’s drinking, anger and volatility increased significantly. He blamed the mother because she moved to Hamilton. He said she should have been there and then she could have prevented the incident. He demanded that she send a message to his ex-wife, Trish. The mother said everything was her fault all the time according to the father and because of her he was in this situation with his boys. It always came back to her move to Hamilton. At this time, she was living in Hamilton, and he was still living in Kirkland Lake. He was involved in family court with his ex-wife. The Office of the Children’s Lawyer (“OCL”) was involved.

[344] He was randomly back and forth between Hamilton and Kirkland Lake. There was no schedule to his visits.

[345] The mother found out she was pregnant in late September early October 2018.

[346] The father had recently moved to Hamilton tentatively. He still said his address was Kirkland Lake and still went back and forth.

[347] Their relationship did not change after they learned of the pregnancy. The father continued to drink excessively and to lash out at the mother. She repeatedly tried to talk to him about his drinking. One change was her tolerance to his drinking. She never asked him to stop drinking completely but rather told him his drinking needed to be more appropriate. He would drink 2 or 3 or 5 beers every night.

[348] He was aware he would not be welcome in the Labour and Delivery suite if he was drinking by me or by the hospital.

[349] He would say it was not a problem, but nothing changed.

[350] He was clear he would not attend Alcoholics Anonymous (“AA”) because the organization was religious based, and he had no respect for it. The mother believes the paternal grandfather is involved in AA in Kirkland Lake and the father has no respect