Court File and Parties

COURT FILE NO.: FC-16-747-1 DATE: 2023/11/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shanna Fuschia Johnson, Applicant AND Zackery Apps, Respondent

BEFORE: Justice Engelking

COUNSEL: Deanna Paolucci, for the Applicant Cynthia Squire, for the Respondent and Self-represented

HEARD: January 19, 20, 23-27, 2023, May 1, 2 and 5, 2023, and June 20, 21, 22 and 23, 2023.

Reasons for Decision

[1] This trial was originally heard from January 19 to 27, 2023, but was reopened for three days in May of 2023 and again for another three days in June of 2023 for reasons which will be discussed below. Ms. Squire was counsel for the Respondent during the January and May attendances at trial. However, Zackery was self-represented during the June attendance.

[2] This is the sad case of two brothers, 10-year-old, S.J. and 8-year-old, K.J. Their parents are the Applicant mother, Shanna, and the Respondent father, Zackery. Throughout my decision, I will be referring to the parents by their first names, not out of a lack of respect, but for ease of reference. The children will be referred to by their initials only.

[3] Zackery has brought a Motion to Change the Final Order of Justice Roger dated March 9, 2017, which granted sole custody of the children to Shanna, supervised access only to Zackery, along with unspecified child support and a restraining order.

[4] Zackery seeks an order for sole decision-making authority over and primary residence of the boys with him, with specified parenting time to Shanna. He also seeks to vary parts of the restraining order.

[5] Shanna seeks to have the children in her primary care and to also have sole decision-making authority over them with specified parenting time to Zackery. She also requests that the restraining order remain in place.

[6] For the reasons that follow, I order that Shanna have sole decision-making authority over and primary residence of C. and K., with Zackery’s parenting time to be determined.

Background Facts

[7] Shanna and Zackery were in a relationship from 2011 to January of 2016. Zackery left the family home in December of 2015, but their final separation was as of January 2016. Two boys were born of the relationship, S.J. in April of 2012, and K.J. in August of 2014.

[8] After separation, the children lived solely with Shanna. Indeed, for reasons which remain largely unexplained, Zackery did not see them for more than two years after separation, until Shanna sought out his involvement in the spring of 2018.

[9] By way of uncontested trial, Shanna obtained an order from Justice Roger dated March 9, 2017, which provided:

• Shanna to have sole custody of the children.
• Zackery to have “Supervised access, at the discretion of the Mother, only after he has addressed the concerns of the Children’s Aid Society of Ottawa, or with this agency’s consent.”
• Zackery was restrained from direct or indirect communication with Shanna or the children except through the CAS, legal counsel or any other professional in the community to facilitate access to the children, and to communicate with the children during such access.
• Zackery to notify Shanna if he secures gainful employment and to pay table child support thereafter.
• Zachery to pay LAO $2000 costs.

[10] Shanna had various struggles with the children and with her own mental health during 2017 and 2018. In October of 2017, Shanna became overwhelmed and placed a call to the CAS of Ottawa looking for assistance. Her evidence was that while the CAS was involved with her at the time, the children were not removed from her care. Rather, her mother, Aysha Johnson, assisted her by voluntarily caring for the boys in her home from October 2017 to January of 2018, when they were fully reintegrated back into Shanna’s care. Shanna continued to also care for the boys at her mother’s home and was additionally involved with Crossroads at this time to try to identify strategies that would assist. Shanna took steps to address her mental health issues, which included seeing her family physician and being put on an antidepressant, making an appointment with a psychiatrist at Primrose, connecting to a counsellor, Nichelle Bradley, getting a referral for a psychologist (though the waitlist was long) and having an assessment completed.

[11] As indicated, in or about April of 2018, Shanna contacted Zackery’s mother, Susan Klassen, to talk about the possibility of Zackery seeing the boys. According to Shanna, C.J. was noting other children’s fathers at school and was expressing to her an interest to see his own. Susan assured Shanna that Zackery’s mental health was stable, and visits commenced being supervised by either Shanna’s friend, Beckie or by Susan. Visits went well, and in July, Shanna reached out to the CAS to ascertain whether they could move to unsupervised, which they became in the later fall of 2018.

[12] The most significant date in this case is October 11, 2018, on which an event occurred which caused the children to end up in the primary care of Zackery. They remained in Zackery’s primary care with varying degrees of access to or parenting time for Shanna from that date until June 23, 2023, at which time I ordered them to be placed in Shanna’s primary care with sole decision-making authority to her and limited parenting time to Zackery pending the release of this decision.

October 11, 2018

[13] On October 11, 2018, an incident occurred which resulted in Shanna being charged with two counts of assault. Shanna’s description at trial of what occurred was as follows: In the week prior to October 11, 2018, Shanna had pneumonia. She also suffers from reactive asthma and indicates that it was bad that week because of the pneumonia. The children were with Zackery the weekend before for Thanksgiving and returned to her care on Wednesday. On Thursday, October 11, 2018, Shanna was still sick, and was also having panic attacks; she took the kids to school by UBER. Shanna asked her father to pick up the boys from school and bring them home, which he did, but he could not stay so only dropped them off. The boys were rambunctious and jumping around a lot. Shanna got them to leave her room and was trying to get them to go downstairs. According to Shanna, C.J. hit his head on the wall, and was running down the stairs saying he was going to call Papa. Shanna remembers getting downstairs and unplugging the phone from the wall; she remembers nothing after that. Shanna later woke up on the ground while C.J. was on the phone to his father. Susan showed up and Shanna asked her for her puffers. The paramedics then arrived. After Shanna was finished with the paramedics, the police arrested her for assault. Shanna did not know what they were talking about. One charge of assault apparently related to Shanna “kicking” the boys off the bed while still in her room upstairs, and the other related to “choking” K.J. The charge relating to the kicking off the bed was later dropped, and the charge relating to choking K.J. was pursued.

[14] Both children gave statements to the police on April 11, 2018, as did Susan Klassen. [K.], who was three years old at the time of his interview, stated in response to the direct question [1] : “Did you get hurt today”, “mom choked my neck for nothings [sic]”. When then asked: “How did it happen”, Kade responded: “I don’t know”.

[15] [C.], who said he was six years old at the time, indicated during his interview [2] , the following:

I will tell you what happened to mom. My mom’s dad my grandpa picked me up at school and dropped me off at mom’s I told mom I wanted to live with dad and she kicks us out of the bed and started kicking our head. I tried talking to papa. Mom took the phone and hit it and choked Kade and I was crying. I wanted to talk to papa and mom said…and she banged her head on the wall and I called 911 and I told the Police what happened.

We were in mom’s bed. Me, [K.] and mom. I told her I wanted to go with Papa and she got mad and she choked [K.].

In response to: “You said she pushed you?”, [J.] stated: “Kick me of the bed and kick me in the bed.”

And the following exchange occurred:

D: You fell off the bed and hit your head? V: I don’t remember D: What was mom saying? V: don’t remember D: Did you talk to Grandpa Daniel? V: Mom was smashing the phone. She is a mean a [sic] mom and I don’t like her and she was hurting my brother. When I hung up she said see what happened. Mom was choking Kade in the kitchen and mom’s room. Kade was pushing mom’s hand away.

[16] In her testimony at trial, Susan stated that she attended Shanna’s home immediately after receiving a call from Zackery, who had been called by [C.]. Susan encountered Shanna on the floor gasping for air. [C.] called 911 and Susan provided them with the address. Shanna asked her about a blanket and her puffer. [C.] told her that Shanna was banging her head on the wall and chocked Kade. After Shanna was attended to by the paramedics, Susan drove the children to the police station to be interviewed. In the interim, Ben Forsom, from the Children’s Aid Society of Ottawa attended and approved Zackery to assume care of the children.

[17] Shanna was released on an Undertaking on that date, the conditions of which Shanna was able to have varied as of December 24, 2018, to include a provision which provided for access to her at the discretion of the CAS. Her signed Undertaking dated February 28, 2019, which is consistent with her evidence in this regard, provided: “Access to [K.J.] and [C.J.] to be determined by a family court order made after February 5, 2019 or at the discretion of the Children’s Aid Society.” [3]

[18] Shanna indicated that despite her desperation to see the children and her many efforts to make that happen, Zackery would not agree to anything she proposed, or the Society supported. In a January 28, 2019, supervision note between CAS Supervisor, Coleen McInnis and Child Protection Worker (“CPW”), Ben Forsom, [4] it is confirmed that Shanna had varied her criminal condition to permit access at CAS discretion, and that the CAS was approving someone (whom Shanna identified as the maternal grandmother) to supervise. The note further confirms that Zackery “has not supported this. He worries that kids will not be returned to him and that [redacted] will be on the side of mom. He is not proposing anyone else.” Also confirmed in the same note is that the kids want to see Shanna, “but are worried she may hurt them”, and that they miss her.

[19] On February 20, 2019, Shanna called the newly assigned CPW, Matthew Lafosse, to ask for an update on when she would be able to see the children. [5] Shanna and Mr. Lafosse spoke on February 28, 2019, where she was again asking for supervised visits. Mr. Lafosse’s note of that date indicates: “I stated Access is at our discretion, but my understanding is I am not in a position to force Mr. Apps to provide access if he disagrees.” In this telephone conversation, Shanna raised a concern that Zackery was alienating the children.

[20] Indeed, despite her efforts, Shanna did not have any access to or contact with the children from October 11, 2018, until Justice Audet made a temporary order for same on June 21, 2019.

[21] With respect to the issue of her criminal charge of assault pursuant to section 266 of the Criminal Code of Canada, a finding of guilt was made, and Shanna was sentenced to one year probation commencing July 3, 2019. Shanna’s Probation Order dated July 3, 2019, contained no prohibition on contact with the children.

[22] Shanna’s evidence was that she did not plead guilty to the offence; rather she chose not to dispute the facts as set out by the Crown for two reasons. First, Shanna indicated she was told by her lawyer that she would not see the children “for years” if she went to trial, and second, she did not have any knowledge of what transpired on October 11, 2018, beyond what she described above. Indeed, in her April 24, 2019, endorsement, Justice Audet referred to Shanna’s intentions by stating on page 3: “I am advised by mother’s counsel that the mother has not plead guilty, but that she will not contest the charges (by that I assume the mother intends to follow the procedure set out by the Ontario Court of Appeal in R. v. R. P., 2013 ONCA 53). The mother’s sentencing is set to take place in June.” [6]

[23] In R. v. R. P., the Ontario Court of Appeal found at paragraph 66: “there is no statutory provision or common law principle that prohibits the procedure at issue in that case and in this case after an accused has entered a plea of not guilty.” Nor did the Court of Appeal see it as a problem that the accused in that case asserted his innocence and did not admit guilt to his counsel. In this case, Shanna’s position is that something happened on October 11, 2018, before or at the time that she passed out. She accepts that she may have in fact hurt K. in some way, perhaps by grabbing him around the neck or shoulders as she lost consciousness, but that it is impossible that she “choked” or deliberately harmed him.

[24] Shanna questions whether the children even knew what “choked” meant at three and five years of age respectively. Indeed, she relies on an unannounced home visit made by CPW, Matthew Lafosse to her home on March 12, 2020, more than two years after the incident in question, when the boys were visiting with her under the supervision of her mother. On that occasion, C. accused the maternal grandmother of choking him. Mr. Lafosse’s note [7] states: “I observed the situation, and this did not occur and and [sic] [redacted] stated that she did not choke him to [C.]. [C.] calmed and returned to the game after a brief time.” This, to Shanna, demonstrates either that C. doesn’t (or didn’t) know what choking is, or that he will say it indiscriminately to meet his own needs.

[25] Shanna’s position taken at the time of the incident, at the time of her sentencing and at this trial, presents a severe problem for Zackery, and for his supports, Susan Klassen and his partner, Van-Anh Nguyen. They all insist, particularly Zackery and Susan, that Shanna must admit to what she did to K. and take responsibility for it. The incident, moreover, has morphed in their minds, but most particularly Zackery’s, from having “choked” K. to having tried to kill him. Most unfortunately, K. seems to have come to believe that his mother tried to kill him on October 11, 2018. This has severely affected his self-esteem and mental health. Indeed, it would be devastating for any child to believe that his mother attempted to murder him. I have little doubt that K.’s belief has been reinforced, for years, by Zackery, for reasons which I will discuss further below. As a result, K. has most unfortunately come to feel unloved and unworthy, which is reflected in his very troublesome behaviors.

Litigation History

[26] As indicated above, almost immediately after the incident, Shanna was trying to regain contact with the boys, to no avail. Zackery commenced his Motion to Change on January 15, 2019. On March 18, 2019, Justice Audet granted the parties leave to bring a motion to deal with the issue of Shanna’s access to the children. Justice Audet heard the motion for access by Shanna on April 23, 2019, but in her endorsement of April 24, 2019, set out that she did not feel she had sufficient independent evidence to decide the issue. She, therefore, seized herself of the matter and adjourned it to a further motion before her in June.

[27] Justice Audet heard the adjourned motion on June 21, 2019, and made a temporary order for Shanna to have access to the children four hours per week, two on Sundays from 3:00 p.m. to 5:00 p.m. and two on Wednesdays from 5:00 p.m. to 7:00 p.m., supervised by her brother, Damian Johnson, or her mother, Aysha Johnson. She ordered a continuation of the motion in late August or early September to review Shanna’s access.

[28] The matter was again before Justice Audet on September 4, 2019, at which time she extended Shanna’s access to three weekends a month from Sunday at 11:00 a.m. to Monday morning, and from after school on Wednesday to 7:00 p.m., both to be supervised by either Damian or the maternal grandmother. Justice Audet also requested the involvement of the Office of the Children’s Lawyer to hopefully conduct a clinical investigation pursuant to s.112 of the Courts of Justice Act.

[29] At a March 4, 2020, Trial Management Conference, Shanna’s friend, Beckie Grossner was added by Justice Audet to the list of approved supervisors on consent.

[30] On July 23, 2020, the matter was back before Justice Audet as both parties agreed at that time that it was no longer appropriate to have Aysha Johnson, who had been Shanna’s main supervisor, supervise the visits. On July 28, 2020, Justice Audet ordered that Shanna’s parenting time would be unsupervised every Sunday from 3:00 p.m. to 5:00 p.m. (again for three Sundays of the month) and every Wednesday from after school to 6:00 p.m., to be exercised in a public place within 10 kilometres of Zackery’s residence. If an approved supervisor was available, Shanna’s parenting time could be expanded to 7:00 p.m. on both Sundays and Wednesdays and did not need to occur within 10 kilometres of Zackery’s residence. The maternal grandmother was not to be present for any of Shanna’s parenting time. Justice Audet again requested the involvement of the OCL.

[31] Shanna exercised her parenting time pursuant to this order, difficult as it was during the pandemic and while pregnant, until March of 2021, when Zackery unilaterally terminated it. In September of 2021, Shanna sought to have an urgent motion scheduled before Justice Audet to address Zackery’s non-compliance with her July 2020 order. Justice Audet thought it more important to move the matter on to trial, and to this end, encouraged the parties to schedule a Trial Management Conference.

[32] A TMC was scheduled for January 28, 2022, but was mistakenly converted into a Settlement Conference before Justice MacEachern. In her endorsement released February 9, 2022, Justice MacEachern referenced Zackery’s non-compliance with the existing order and his insistence that Shanna have only supervised parenting time, as well as Shanna’s insistence that her parenting time occur as per Justice Audet’s July 23, 2020, order. At paragraph 13 of her endorsement, Justice MacEachern indicated:

Again (and again) this matter needs to get on a trial list but given the extensive delay since the Applicant has seen the children, and the Father’s position, I am making the order below, on a without prejudice basis, so that at least the Mother has the option if she wishes and can afford it, to have parenting time with the children pending further order. The terms reflect what the Father says he requires for the Mother’s parenting time to recommence. I have also provided below for the parties to return to Justice Audet for her to address interim parenting and specifically the Mother’s request for relief related to the Father’s non-compliance with the July 28, 2020 order.

[33] Justice MacEachern made the following order regarding these issues:

16. Without Prejudice to the applicant’s position that the Respondent is required to comply with the temporary order of July 28, 2020, that her parenting time should not be subject to supervision, that other supervisors should be approved, and that there should not be any restriction on her driving the children: A. The following services shall be considered “approved supervisors” for the purpose of paragraph 5 (page 5) of Justice Audet’s July 28, 2020, Temporary Order: i. The Family Service Ottawa’s Supervised Access Program; ii. Brayden Supervision; and iii. Renew Supervision Service. B. The Applicant may, at her election, arrange for supervision with any of the above-approved supervisors, for the purpose of exercising her parenting time in accordance with the July 28, 2020 Order. C. The Applicant may submit an Application to Family Services Ottawa to be placed on their waiting list for their Supervised Access Program. If she does, the Respondent shall cooperate with the Application by completing and submitting, in a timely way, any required forms. D. Pending further order of the court, the costs of such supervision shall be paid by the Applicant. The issue of who should pay for such services may be raised in the motion provided for below. E. If the Applicant has someone else operating the vehicle, the Applicant may pick up and drop off the children by car, without supervision (see para 7 of Justice Audet’s July 28, 2020 order). F. The Father shall ensure that the Applicant has her parenting time scheduled in accordance with the above terms and the July 28, 2020 order. He shall comply with this order. (Emphasis is original).
17. The Applicant may schedule a 45-minute Motion before Justice Audet, to be scheduled through the Trial Coordinator, for the earliest possible date that accommodates the timelines below, given the court’s capacity.

[34] Shanna thereafter engaged Renew Supervision Services and recommenced having supervised parenting with the children from March 2 through to June 1, 2022. As per the endorsement of Justice MacEachern, the matter was back before Justice Audet on motion on May 12, 2022. In her June 7, 2022, endorsement, Justice Audet made the following order regarding Shanna’s parenting time:

1. Commencing immediately, the mother shall have unsupervised parenting time with the children every Sunday, for the full day, from 10 a.m. to 7 p.m
2. If the mother has her newborn child in her care during the visit, she shall be accompanied by a third party throughout the visit (but not the maternal grandmother) to assist with her newborn child’s needs. (Emphasis is original).
3. The mother’s parenting time shall take place in Ottawa (with no restriction as to the location itself, as long as the maternal grandmother is not present), to minimize the need for the children to travel to attend those visits.
4. Commencing on July 16, 2022, the children will have parenting time with the mother in accordance with the following schedule: a. Week one: from Saturday morning at 10 a.m. until Sunday afternoon at 6 p.m. (at her home in Brockville, it being understood that her partner or another third party will be present with her during daytime to assist in the care of the three children); b. Week two and three: on Sunday, for the full day, from 10 a.m. to 7 p.m. (in Ottawa, in accordance with paras. 2 and 3 above); c. Week four: the children will remain in their father’s care for the entire weekend.
5. Beginning on August 12, 2022, the mother’s weekend of parenting time (Week one of the schedule) will begin on Fridays after school (or if there is no school, at 3:30 p.m.).
6. In addition to the above parenting time, the mother will be allowed parenting time with the children on Wednesdays, from after school (or if there is no school from 3:30 p.m.) until 6:00 p.m., in Ottawa, in accordance with paras. 2 and 3 above, if she is able to travel to Ottawa on that day. The mother shall confirm to the father in writing by 7 p.m. on Mondays if she is able to travel to Ottawa the following Wednesday. If no written confirmation is provided by Monday at 7 p.m., the Wednesday visit will not take place.
7. The parents will exchange the children at the Super Dome on GreenBank and Hunt Club.
8. For the time being, the restrictions imposed on the maternal grandmother’s contact with the children remains in place. To be clear, there shall be no contact between the maternal grandmother and the children pending trial, where this issue can be reviewed.

[35] Justice Audet also ordered that the children were to be immediately enrolled in counselling with Melissa Lafreniere and attend counselling in accordance with her availability.

[36] On July 6, 2022, Justice MacEachern added the matter to the January 2023 Trial Sittings for a seven-day trial. Shanna exercised her parenting time with the children (not however without issue or disruption) in accordance with Justice Audet’s June 7, 2022, Temporary Order to the commencement of the trial. At the conclusion of the evidence at trial, with closing submissions outstanding, I granted a temporary order varying Shanna’s parenting time as follows:

1. There shall be a variation to Ms. Johnson’s parenting time pending the release of the trial decision as follows: a. Commencing Friday, February 3, 2023, Ms. Johnson shall have parenting time with the children, [C.] and [K.] every second weekend from the end of the school day on Friday to the commencement of the school day on Monday. b. Pick up and drop off of the children shall be at school. In the event that there is no school or one or both children are prohibited by the school from attending school, the pick up and drop off of the child who is not permitted to be in school shall be on Friday at 3:00 p.m. and on Monday at 8:30 a.m. at the regular exchange location. c. Ms. Johnson’s parenting time on Wednesdays shall continue, and shall be from 3:00 p.m. to 7:00 p.m., to be exercised in Ottawa. d. There shall be no prohibition on the Maternal Grandmother having contact with the children, however, such contact shall be in the presence of Ms. Johnson or her spouse, Michael Leclair.

[37] The trial reopened on May 1 and 2, 2023, to deal with new information regarding mainly the children’s schooling as well as some problems with parenting time exchanges, with closing submissions heard on May 5, 2023. On that date, I made a further temporary order as follows:

There will be a temporary order regarding exchanges for parenting time and summer parenting time, to be read in conjunction with my temporary order of January 31, 2023, as follows:

1. The Applicant mother may have her partner and the maternal grandmother, or maternal grandfather, or partner alone, or the maternal grandfather alone, attend to the exchange of the children, with or without her present.
2. The Respondent father may have his mother or sister, or any third party with whom the parties agree in writing, attend to the exchange of the children, with or without him present.
3. If the Applicant or the Respondent are present at the exchange, she or he shall remain in her or his vehicle at all times during the exchange.
4. Under no circumstances shall either party speak poorly of the other, their respective partner of other family member to or in the presence of the children.
5. Any parenting time that does not occur due to poor weather/driving conditions, illness or the children’s behaviours shall be rescheduled within 30 days. All missed parenting time shall be made up.
6. The parents consent to any assessment necessary to determine qualification for a section 23 placement in school. If the children qualify for such a placement, they shall be registered in same, either in Ottawa or Brockville, according to their primary residence as determined by final order of this court.
7. Both parents shall ensure that the children attend school on time and every school day, unless a child is ill, suspended or expelled or has a medical or therapy appointment.
8. Summer parenting time shall go a per the draft order filed.

[38] Much to my surprize, the parties reached an agreement on a summer parenting schedule which was to see the children with each parent on a shared, alternating week on/week off basis. Based on the evidence heard to that date, I did not expect that such a schedule would come to fruition. I was not wrong, and by mid-May, the boys began to run from Shanna at school exchanges. She was unsuccessful in having parenting time with them due to same on Wednesday, May 24, 2023, and the weekend of May 26, 2023. Shanna forewent her scheduled parenting time for June 7, 2023, due to the air quality advisory and forest fire smoke in the air in Ottawa, albeit with a hope to have it made up, which was not agreed to by Zackery and Susan. On June 13, 2023, both parents received an email from legal counsel for the Ottawa-Carleton District School Board, Richard Sinclair, indicating that due to the boys “refusing to voluntarily leave the school with Ms. Johnson” … “effective immediately we have made the determination that the exchange in parenting time can no longer take place at Manordale Public School.” The expectation from the school board was that the parents would arrange for the parenting exchange to occur elsewhere. They reverted to their previous exchange location, however, the boys continued to refuse to attend with Shanna for her parenting time.

[39] The trial reopened for a second time based on this evolving situation. On June 23, 2023, after receiving two more days of evidence from the parties, I granted the following temporary order:

1. Pending the release to the parties of my Reasons for Decision, there shall be a temporary order, which supersedes all previous orders in this matter, as follows: a. Commencing immediately, the Applicant, Shanna Johnson, shall have primary residence of the children, [C. C. J.], born *****, 2012, and [K. J. J.], born ******, 2014. b. The Children’s Aid Society of Ottawa is requested to assist in transitioning the children into the care of the Applicant. c. The Applicant, Shanna Johnson, shall have sole decision-making authority over the children, which expressly includes the ability to register the children for school in Brockville for September of 2023 at a school of her choosing. d. The Respondent, Zachary Apps’ parenting time shall be suspended for one month. Commencing July 24, 2023, he shall be entitled to supervised parenting time once per week for a minimum of two (2) hours. The parties shall identify and take all steps necessary to engage a professional supervision service as soon as possible. If there is a cost to the supervision service, the Respondent shall be responsible for such cost. The Applicant or an agent chosen by her shall be responsible for delivering the children to and receiving them from the supervised access facility before and after the Respondent’s parenting time. e. Any police force having authority shall enforce this order. Specifically, such police force shall be authorized to locate the children, enter into any premise to do so and assist the Children’s Aid Society of Ottawa in ensuring the children are placed in the care of the Applicant. f. A copy of the endorsement shall be immediately served upon the Children’s Aid Society of Ottawa (in whose jurisdiction the Respondent lives) and Children and Family Services of Lanark, Leeds and Grenville (in whose jurisdiction the Applicant lives). g. Counsel for the Applicant, Shanna Johnson, shall arrange for the service of a copy of the court’s endorsement and issued order on the Respondent, Zachary Apps at the time of the retrieval of the children from him, or as soon after as is practicable.

[40] To the court’s knowledge, the children have been in Shanna’s primary care since that date.

Analysis

[41] There is no doubt that there has been a material change in circumstances affecting the children since the order of Justice Roger was granted. That change occurred on October 11, 2018. A new determination as to what is in the best interests of C. and K. is, therefore, required.

[42] When making a parenting order with respect to a child, I am required by subsection 24(1) of the Children’s Law Reform Act, to “only take into account the best interests of the child in accordance with this section.”

[43] Subsection 24(2) dictates that in determining a child’s best interests, the court “shall consider all factors related to the circumstances of the child, and in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[44] The factors relating to the circumstances of the child outlined in subsection 24(3) of the Children’s Law Reform Act, are:

(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability. (b) The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life. (c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. (d) The history of care of the child. (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. (f) The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage. (g) Any plans for the child’s care. (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. (i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child. (j) Any family violence and its impact on a person’s ability to meet the child’s needs or the appropriateness of an order which would require cooperation. (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[45] In the past four years and eight months (October 11, 2018, to June 23, 2023), Zackery has shown himself as utterly incapable of meeting the children’s educational and medical/psychological needs, of supporting the development and maintenance of their relationship with Shanna, of communicating and cooperating on matters affecting the children, and of sheltering them from family violence and/or adult conflict. Most significantly, I find that he has damaged the children’s emotional and psychological safety by fostering in them a strong fear of their mother, the basis for which is not supported by evidence.

Educational/Medical Needs

[46] With respect to C. and K.’s educational needs, the evidence has demonstrated that Zackery has experienced extreme difficulty in having them attend school regularly and stay in school when they do attend. C. began attending school in September of 2017 at St. James School while in Shanna’s care. Shanna’s evidence was that St. James was not a good fit for him and he moved to W.O. Mitchell, which had more resources available to assist him, by November. In the 2017-2018 school year at W.O. Mitchell, C. was absent a total of 5.5 days, and late for 18. S. continued and K. commenced school at W.O. Mitchell in September of 2018. As noted, they went into Zackery’s care as of October 11, 2018. By their November 5, 2018, report cards, they had both missed 8 days and were late for 10. For the 2018-2019 school year, C. was absent 29.5 days and late 56 days, and K. was absent 27.5 days and late 66 days. In the 2019–2020 school year, C. was absent 15 days and late 41; K. was absent 15.5 days and late 40. In the 2020–2021 school year, C. was absent 50.5 days and late 22; K. was absent 52.5 days and late 25 days. The boys moved to the Pinecrest Public School in September of 2021. For the 2021–2022 school year C. was absent 71 days and late 20; K. was absent 76 days and late 41. From September 7 to November 17, 2022, C. was absent 34 days and late 19. He was also “dismissed” for 6 days. [8] During that same period, K. was absent 32.5 days, late 19 and dismissed for 8. [9] At the time of the original trial, the boys were still at Pinecrest School, however within days of it being completed, both were permanently expelled. By the time of the May reopening of the trial, C. and K. had been admitted to Manordale Public School, at which there was some improvement in their attendance.

[47] Zackery’s evidence was that he was not happy with the children attending Pinecrest Public School. Although the children were in his care at the time of the change from W.O. Mitchell, and although he would have had to agree to their enrollment or transfer to Pinecrest, Zackery blamed Shanna for the change because of her move out of the W.O. Mitchell catchment area to Brockville. He also attempted to suggest that he was not notified of her intended move, notwithstanding that his lawyer referenced her anticipated move in an email to Shanna on which Zackery was copied. [10] Regardless, the children were transferred to Pinecrest. Even though their attendance records were not great at W.O. Mitchell from September of 2018 to June of 2021, they exponentially deteriorated at Pinecrest, as did the boys’ behaviours, so much so that they were ultimately expelled at eight and ten years of age respectively. Some of this period included absences related to the pandemic, lockdowns and/or required periods of isolation. However, online schooling was also available during those COVID related disruptions. A review of the boys’ Attendance Profiles for Pinecrest from September 1, 2021, to June 30, 2022, [11] reveals that Zackery often kept the boys home for having a bad night, being “away”, having problems with his truck/transportation issues or even to “test” how long it took for Pinecrest staff to call about their absence from school. Zackery also took it upon himself to keep the boys out of school on Fridays because he wanted to attend his family cottage in Quebec on the weekends, and he tended to keep both boys at home even if only one “had a bad night”, was exhibiting behaviour difficulties or was sick. In the boys’ report cards, for many of their classes, grades were unable to be given due to “insufficient data”.

[48] Although Zackery was aware of and attentive to the behavioural issues the boys were having at school, besides being available to speak to them during the day to see if he could redirect them, or to pick them up, if necessary, he has done little else to attempt to address their needs. It appears Zackery has also sabotaged the plan to have the boys enrolled is a s. 23 school as per paragraph 6 of my May 5, 2023, temporary order. It was shortly after this order that the boys started running away from Shanna at school or refusing to go with her for parenting time. Shanna’s evidence is that during the May 17, 2023, pick up at school, which was difficult but happened, C. expressed to her in the presence of the Vice Principal that “it was all her fault that they were going to a s.23 school”, which he also referred to as a “retard” school. When Zackery was questioned about this, he suggested that C. could be hearing from other children that a s. 23 school is a “retard” school; however, that begs the question of how C. would even know they would possibly be going to such a school and why it was Shanna’s “fault” when it was done by consent order, unless he was told so by Zackery.

[49] Indeed, Zackery has obtained or maintained no services for these boys in the four years and eight months they have been in his care. Given their extreme needs and behavioural challenges, which include being violent towards others and making self-harming statements and gestures, this is shocking.

[50] In his evidence, Zackery pointed to some efforts to obtain services for the boys, but even when made, there was no follow through or maintenance by him of any services for these very damaged children. As with the school issue, Zackery tended to blame others for his failings in this regard. He expressed frustration with the availability (or lack thereof) of youth mental health services. Zackery also felt that services were only offered for the short term when long term counselling was required. He also stated that the CAS had interfered with services, and Shanna had failed to provide her consent.

[51] Zackery’s position on some of these issues was not born out by the evidence. Shanna, for example, was able to demonstrate that she had provided consent for any service requested but for one - the very recent suggestion of counselling by a counsellor identified by Zackery, Michelle Aziz. Her reasons for this were twofold: 1) the boys were engaged with (or supposed to be engaged with) Melissa Lafreniere for counselling as per Justice Audet’s June 7, 2022, temporary order, and 2) Ms. Aziz would not be covered by Shanna’s spouse, Michael’s benefits, and she did not want to be left paying for it, as she had for everything else. Otherwise, Shanna indicated that she consented to any service requested, and additionally continued to press for or seek out services herself. This was supported by documentary evidence.

[52] While Zackery did arrange for counselling with the boys with Cara Diamond at Minwaashin Lodge in early 2019 (via the Circle of Care), he failed to follow through with it after it was paused for the court to determine what Shanna’s parenting time would be. Zackery blamed the CAS for putting a halt to this counselling, despite Ms. Diamond indicating it could be resumed once Shanna commenced parenting time. In a letter dated April 28, 2020 [12] , Ms. Diamond indicated that in an email to Zackery dated April 29, 2019:

I explained that this was just a temporary situation and that once the court had decided their mother’s access, that Minwaashin could continue to support them – be that in continuing to build rapport to help them overcome the event, or to support them in the transition back to seeing their mother. However, I have not heard from Mr. Apps since that date, and therefore no further counselling has occurred.”

[53] Indeed, Shanna was following up with Ms. Diamond in July of 2019, after her parenting time commenced, to see if Zackery was arranging for her to recommence counselling the children. However, Zackery was not. Zackery was upset with the CAS, whom he testified he plans to sue when this case is completed, for interfering in the counselling, and he may also have been upset with Ms. Diamond after the CPW, Matthew Lafosse reported to him that: “There was a worry from the counsellor the boys were being prepped/coached.” [13]

[54] Zackery also did have his family physician, Dr. Maha Wanes Hana, see the children and refer them to a paediatrician, Dr. Najat Sasani. On May 27, 2019, Dr. Sasani wrote a letter to Dr. Wanes Hana [14] , in which Dr. Sasani shared her impressions of C. as:

[C.] is a 6-year old boy with behavioural difficulties at home and school with features of ADHD. Trauma caused by the reported neglect and physical/emotional abuse has big negative impact on his ability to cope. Dad was already told that [C.] and his brother [K.] have ADHD which he adamantly disputes. He is working on setting a stable environment for the boys with routine and clear rules and expectations.

I understand that [C.] and his brother are receiving counselling and play-based therapy at “Circle of Care Centre”. I recommended that they continue with this program until we arrange for them to see mental health. To help with behavioural strategies at home and school, I provided dad with pamphlet for crossroads program and I recommended he contact them as soon as possible…

To have a better understanding of [C.’s] day-to-day functioning, I requested that dad and [C.’s] teacher fill screening questionnaire. We agreed to meet again for follow-up in July and I requested that [sic] brings [C.’s] report card along to the next appointment.

[55] Interestingly, Dr. Sasani’s impression from Zackery is that the boys were in counselling at the time of this letter, though it had already been placed on hold in April of 2019. Additionally, notwithstanding the recommendation that it continue, Zackery did not make that happen. I also received no evidence that he contacted Crossroads as per Dr. Sasani’s suggestion.

[56] On K.’s chart, there is a similar letter from Dr. Sasani addressed to “To Whom It May Concern” dated May 23, 2019 [15] , but it includes the following: “[C.] and [K.] were referred to Dr. May Martin, a pediatric psychiatrist who according to dad, required that mom be present for the assessment which dad not agree to. Boys were then referred to Dr. David Palframan, pediatric psychiatrist. Unfortunately, this referral was also denied with advice to make a referral to CHEO mental health services.”

[57] Also, on May 29, 2019, Anna-Marie Brownrigg, Centralized Mental Health Intake Worker for CHEO, wrote a letter to Dr. Sasani [16] , in response to her referral, in which she informed Dr. Sasani that her referral of C. to the “Young Mind CHEO/Royal Mental Health Services” was not accepted, but recommended that contact be made to any of the following for C.: Mental Health and Addictions Nurses (LHIN), Crossroads Children’s Treatment Centre, Mental Health Walk In Clinic, Family Services Ottawa, Counselling and Family Services (CFSO) and Jewish Family Services. I am unaware of Zackery following up with any of them.

[58] In October of 2019, both children were seen at CHEO Emergency for behaviour difficulties, including suicidal behaviour. Also, in the fall of 2019, Dr. Wanes Hana made a referral for K. to Dr. Megan Lelli, a pediatric psychiatrist. Contrary to Zackery suggesting that Shanna was not consenting to this, Dr. Lelli’s reporting letter to Dr. Wanes Hana dated November 22, 2019, states: [K.’s] mother was contacted prior to our meeting today and agreed to [K.] being seen in assessment.” [17]

[59] Dr. Lelli’s impression of K. was that a full diagnostic assessment for ADHD was not possible at that time given his lack of stability and predictability due to the ongoing custody dispute. Dr. Lelli recommended individual counselling for K. and/or family counselling through Ottawa Family Services, Jewish Family Services, Catholic Family Services or through the Ottawa Centre for Attachment and Trauma. She also recommended Crossroads Children’s Mental Health Centre “for behavioural and parenting support.” I am not aware of Zackery following up with any of these recommended services.

[60] Dr. Lelli sent a follow up letter to Dr. Wanes Hana dated January 31, 2020, to provide further information after having a telephone conversation with Shanna. Dr. Lelli stated in her letter: “ I underscore that while this information would have altered the content of my report, my overall impressions and recommendations remain the same .” (Emphasis is original)

[61] On January 21, 2020, C. was seen at Dr. Wanes Hana’s clinic, where it was noted: “behaviour disorder most likely ADHD” and a referral was made to Dr. Dixit. Subsequently, Shanna advised Dr. Wanes Hana that the children’s primary physician was Dr. Turley at Primrose Medical Clinic in Ottawa, and their charts were transferred to Dr. Turley.

[62] Nevertheless, they did see Dr. Shannon Bucking, acting as Locum Pediatrician to Dr. Dixit, in April of 2021. In her letter to Dr. Wanes Hana regarding C. dated April 21, 2021 [18] , Dr. Bucking indicated: “It is strongly recommended that Dad/CAS continue to make efforts to engage both [C.] and [K] in counselling service (public or private) to assist with processing some of the difficult situation they have had to live through.” I am unaware of Zachery doing so at that time.

[63] In a June 18, 2021, note to file, Dr. Bucking indicated under “Impression/Plan: “ In my professional opinion, even if only 10 sessions available, I believe that counselling is an important component to both [C.] and [K.]’s health and well-being. Despite offering several suggestions, Dad remains adamant that it would be better for no counselling whatsoever. I am concerned about this, and I will be communicating with CAS about this, to ask for their support in continuing to make efforts to get a counsellor involved.” (Emphasis is original) I am unaware of Zackery making any efforts to obtain counselling for the children in response to this recommendation.

[64] Dr. Dixit also made a consult note dated September 1, 2021, and provided Zackery with letters addressed to the Principal of C. and K.’s school dated September 2 and 3, 2021, respectively, informing her that both had been diagnosed with ADHD and indicating that “an urgent psychoeducational assessment is indicated at this time.” [19] Dr. Dixit had further appointments with C. on December 1, 2021 and April 20, 2022, after both of which she continued to stress the importance of counselling for the children and encouraged Zackery to follow up with the school about the psychoeducational assessment. After an October 26, 2022, appointment with C., Dr. Dixit indicated that “Counselling has been initiated for [C.], which has been helpful”. This is, of course, only after Justice Audet ordered it to happen and by whom it was to happen. By the time of trial, the psychoeducational assessments had not been done, and Zackery had taken no steps to follow up on them.

[65] In September of 2022, Zackery had an appointment with Dr. Anne Gilles of CHEO in which he discussed his frustration with the mental health system. In November of 2022, K. was seen by Dr. Rishi Kapur as a mental health outpatient on referral from Dr. Gilles. Nothing appears to have come of his meeting with Dr. Kapur, though Zackery relied on K.’s contact with Dr. Kapur as reason for doing nothing else.

[66] This contrasts with Shanna, who, even when she was struggling with her own mental health issues and feelings of being overwhelmed, sought out every service she could think of to assist the boys while they were in her care. This included calling the CAS for assistance herself in October of 2017, engaging with Crossroads in 2017/18, having the boys attend counselling at the Western Ottawa Resource Centre, consulting with her family physician and trying ADHD medication for C. Even after the boys were in Zackery’s care, Shanna continued to try and obtain services for them. She was extremely concerned that they were not receiving counselling, which she profoundly believed they needed. She was also advocating with Pinecrest Public School and with Manordale Public School for resources to get C. and K.’s needs met.

[67] In relation to school, but also spilling over into medical care, Shanna also came to believe that the boys, but particularly C., would benefit from medication to assist in managing and controlling his ADHD. This was not Shanna’s first choice, and she struggled with it early on, but came to understand that C. did better at school when on medication.

[68] C. was initially diagnosed with ADHD in 2017 by Dr. David Palframan. This diagnosis was confirmed by Dr. William James at a November 2, 2017 visit to CHEO Outpatient Mental Health Services, wherein Dr. James’ “Visit Diagnosis” was ADHD, Oppositional Defiance Disorder, Anxiety disorder – unspecified and Post-traumatic stress disorder. [20] Dr. James wrote a reporting letter to Dr. Hurley dated November 2, 2017 [21] , in which he stated that C. had previous been started on Ritalin in September, but did not do well on it, and then started on Biphentin, which caused him to stutter, become depressed and zombie-like. Dr. James, therefore, recommended that they start C. on Adderall-XR (extended release), which Shanna did.

[69] Shanna’s evidence is that C. began to improve while on Adderall-XR, which was an extended-release tablet he was given in the morning. Shanna stated that he was doing quite well at school in the spring of 2018, which is supported, in my view, by the very infrequent absences he had over that period. Shanna indicated that the medication was for C.’s attention at school, and she did not necessarily give it to him on weekends or during the summer.

[70] By the summer of 2018, Shanna had, of course, reconnected the boys with Zackery. Shanna advised Zackery by text message dated September 10, 2018, that she would be putting C. back on his medication [22] . In that message she stated: “I’m disappointed. Was hoping he was gonna be okay without the meds.” On September 19, 2019, Shanna had a text message exchange with Susan wherein she agreed that Susan could come to the next school meeting with her regarding C. Shanna stated at various points in this exchange: “I really hope they stop trying to push meds” and “Yeah I want to have him reassessed. I don’t think he has ADHD or oppositional defiance disorder” [23] . On the same date, Shanna had a text exchange with Zackery wherein she stated: “Your mom and I are going to meet with the principal today. I didn’t give [C.] any medicine today. Going to try and sort this out without meds as best as we can.” [24]

[71] Zackery and Susan rely on these exchanges to demonstrate that Shanna was not actually in support of C. being on medication, and that she was not providing it to him. Shanna’s evidence was that both Zackery and his mother, Susan, were against her putting C. on ADHD medication, and she felt under a great deal of pressure to not do so. She struggled with trying to balance C.’s need for medication with the strong opposition she was receiving from Zackery and Susan. She, therefore, waivered, but ultimately decided that it was best for C. if she did place him back on the medication, which she believes helped him a great deal.

[72] Shanna points to an email from C.’s primary teacher, Ashley Costain dated October 4, 2018, in support of this fact. Ms. Costain indicated in her message: “We have definitely noticed a very positive change in [C.] over the last week and a half. He has been able to focus and control his impulses, he stays in class and on the schoolyard and is beginning to participate on the carpet. We have also noticed that he is interacting with his peers more often and in a very positive manner.” [25]

[73] Notwithstanding this improvement for C. at school, Shanna’s evidence was that Zackery unilaterally stopped giving C. his medication without medical advice after the boys went into his care on October 11, 2018.

[74] Zackery’s evidence was that he does not accept that the boys have ADHD, or anything else which “puts a label on them”. He is adamantly opposed to medicating the boys. Zackery’s position stems in part from his own experience as a child, where he struggled with many of the same challenges as C. and K., and in part from his identification of an Indigenous man. Zackery described himself as “proud Haudenosaunee man” and indicated that it is against Haudenosaunee culture/practice to give medication to growing boys. Zackery, however, did not proffer any expert on Haudenosaunee culture and practices in support of this position. While I sympathize with his view of this, without such evidence, I cannot find it to be factual.

[75] Zackery, in fact, rejects the diagnosis of C. and of K. as having ADHD, as does his mother, Susan. Zackery sees C. and K. as regular boys who are rambunctious and have some difficulty regulating. Even if Zackery’s position is that the children should not be medicated, several other suggestions to manage C. and K.’s behaviours have been made over the years. Zackery has chosen not to employ any of them. Dr. Dixit clearly expressed her concerns to Zackery, on more than one occasion, about the impacts of untreated ADHD. In her letter to Dr. Wanes Hana dated April 20, 2022, Dr. Dixit stated that she discussed with Zackery “ADHD and consequence of poorly treated ADHD”. In her October 26, 2022, letter to Dr. Wanes Hana, Dr. Dixit reiterated, speaking of Zackery: “Again we discussed ADHD and the consequences of poorly treated ADHD.” Zackery, however, appears to have chosen to disregard the findings and/or advice of every expert (Dr. Palframan, Dr. James, Dr. Sasani, Dr. Bucking, Dr. Dixit) that has ever been consulted with respect to these children.

[76] Zackery has gone even further than ignoring medical advice regarding the children’s diagnoses with ADHD or refusing to give them medication for ADHD. He has, in fact, accused Shanna of trying to “poison” the children by putting ADHD medication in a powdered form on their food, most recently on May 5, 2023. This has been a theme in Zackery’s theory of the case for some time. Zackery and Susan insist that Shanna filled a prescription for ADHD medication for C. even after the children ceased to be in her care. They also insist that Shanna has sprinkled “white powder” from “blue and white pill capsules” on the children’s food because she cannot manage their behaviours. Zackery states that the children have identified these blue and white pills to him. They refer to this as Shanna poisoning the children.

[77] Shanna adamantly denies that any such thing as ever taken place. First, she states that she has no blue and white capsules. C.’s last prescription for ADHD medication was for Adderall-XR, which is neither blue and white, nor in powder form. Second, Shanna produced C.’s prescription history from her pharmacist, which begins on August 17, 2017, and ends on September 12, 2018 [26] . The prescription for Adderall-XR (“ACT-AMPHETAMINE XR 10MG/MIXEDSALTS AMPHETAM 10MG”) prescribed by Dr. James commenced on November 2, 2017, was refilled approximately every two weeks, and ended on September 12, 2018. Contrary to Zackery and Susan’s assertions, there is absolutely no evidence before this court that Shanna filled a prescription for either of the children post them going to live with their father.

[78] Additionally, on May 5, 2023, C. was taken by Zackery to the Emergency Department of the Kemptville Hospital, where Susan lives. Dr. Steven Gravelle gave the following history of C.’s visit to the hospital [27] :

• [C.] states he told the teacher at school today that he thinks his “mom is poisoning” him
• Complex familial history: Dad states he and his ex ([C.] and his brother’s Mom) separated five years ago. Mom was convicted of “aggravated assault against a minor” for abusing her sons in 2018. Kids have been living with Dad for 5 years. Mom has had supervised visitation rights for 3 years and recently has had unsupervised visitation rights for the past 9-12 months (every other weekend). [C.] states that he does not like his Mom, and is afraid of her because she has “tried to kill me and my brother” by “choking my brother”. [C.] states his Mom has allegedly “cut me with a knife and hit me”. [C.] reports he has notice his Mom sprinkle blue and white pills (the powder contained inside) in his food several times. [C.] states that the brown line on his left ankle is because “my Mom burned me with a lighter while I was sleeping but I did not wake up” CAS is involved in this case, as well as an extensive legal involvement with police and courts. [C.] states that “my Mom is a druggie and has guns in her house”. Dad reports that Mom’s new partner is a transgender (born woman, transitioned to man, and now transitions again to woman) which is “difficult for the kids”. Dad states he does not have legal full custody of his kids. Dad was advised by their Family MD (Dr. Wanes) to go to ER if ever he suspects his kids are being poisoned.
• [C.] reports no BM x 2, abdominal pain and nausea.
• Some of the above conversation was had without [C.] in the room

[79] The result of this visit was “Urine Tox: negative”. The doctor’s impressions were: “1 -Complex Familial Situation with CAS involvement 2-Likely Constipation 3. Possible PTSD of Child. ?confabulation of burn on his leg in his sleep?”

[80] Zackery was dissatisfied with this outcome, noting that, unlike CHEO, the Kemptville Hospital did not have the necessary tools to carry out appropriate testing. Despite all evidence to the contrary, he remains convinced of his theory.

[81] Shanna’s position at this point is that these boys desperately need to be on medication for ADHD, which she believes will give them their best chance to settle down, focus and succeed at school. She also feels very strongly about them being in a s.23 school to get the support that they need, and that it is crucial to have their psychoeducational assessments completed. Shanna has been in contact with Maynard Public School in Brockville, which is in her catchment area and has appropriate resources, including tutors as needed.

[82] Shanna also believes that it is crucial for the boys to participate in counselling. She has been in favour of and advocated for same for many, many years. When the boys were still in her care, Shanna participated with Crossroads from approximately October of 2017 to March of 2018. She also had C. doing counselling with Maureen Sullivan at the Western Ottawa Resource Centre. Shanna wanted the boys to continue with Ms. Diamond in 2019, but as has been noted, Zackery did not follow up with it. In March of 2022, Shanna was interested in Renew Supervision Services’ proposal [28] to involve a counsellor associated with their agency, Nadia, to assist K., but advised that Zackery would have to be consulted. Shanna also reached out to Mellissa Lafrenière day after she was proposed, and made an intake appointment for April 6, 2022, but it didn’t work for Zackery.

[83] On the issue of counselling, Justice Audet stated the following in her June 7, 2022 endorsement:

Counselling has been highly recommended as an essential service for these children by just about every professional who has been involved with them over the course of the past three years: the OCL, the CAS, the children’s doctors, and this court. Despite this, the father has failed to ensure their immediate and ongoing involvement in counselling (they have attended some counselling at different places but each time the sessions were discontinued).

The parties have agreed on Melissa Lafrenière as a suitable counsellor for the children. However, the father states that she only has availability on Fridays. The father’s refusal to attend counselling with the children on Fridays is rooted in his desire to go to the cottage with the children on Fridays (or Thursday nights) for the weekend. The children’s school records confirm that the children very rarely attend school on Fridays. The father explains that the decision not to send the children to school on Fridays was based on their (previous) school’s implementation of a four day schedule for the children, due to their special needs. No evidence from the school was provided by the father to support this allegation. The father’s wish to go to the cottage with the children every weekend is a well-known fact. The children’s need for counselling is more important than the father’s wish to spend an extra day at the cottage on weekends, regardless of whether the school has recommended a four-day academic schedule for them or not.

These children are in dire need of counselling to sort out their many contradictory emotions towards their parents, the ongoing parental dispute, and the many traumas they have endured during their very young lives.

[84] Justice Audet ordered the following as it relates to counselling:

1. The children shall be immediately enrolled in counselling with Melissa Lafrenière.
2. The children shall attend counselling on any day that Ms. Lafrenière is available, and as frequently as she, in her sole discretion, recommends. If Ms. Lafrenière only has Fridays available, then counselling will take place on Fridays.
3. Both parents’ contact information shall be provided to Ms. Lafrenière so that she may contact either one of them as needed, for reasons that she, in her sole discretion, deems appropriate and necessary. Ms. Lafrenière shall not be compelled to testify as a witness in this matter unless she, in her sole discretion, is of the view that her testimony is in the children’s best interests.
4. Both parents shall ensure that the children attend all their counselling sessions with Ms. Lafrenière, unless a child is too sick to attend (in which case a doctor’s note shall be provided).
5. Neither parent is allowed to remove the children from counselling with Melissa Lafrenière under any circumstances, without my prior leave.
6. The cost of the counselling which is not covered by the mother’s or her partner’s health insurance shall be shared between the parties as a s. 7 expense. Ms. Lafrenière is hereby authorized to send her invoices directly to both parents, and to make arrangements directly with either parent for the payment of the children’s counselling sessions through their insurance.

[85] Shanna was very dedicated to the children’s counselling with Ms. Lafrenière. She made all the appointments to December of 2022, but for three made by Susan, and she ensured that they were happening every two weeks. Shanna participated in some visits when suggested by Ms. Lafrenière, and she also reached out to Ms. Lafrenière to discuss parenting techniques and how to address self-harming statements made by the boys. According to Shanna, since December Ms. Lafrenière was becoming increasingly concerned about the boys’ lack of engagement with her, and she recommended Shanna also be present at all appointments.

[86] By the May re-opening of the trial, the counsellor had changed. Zackery testified in May that the children were not able to have a positive relationship with Ms. Lafrenière because of Shanna. His position, notwithstanding Justice Audet’s order that Ms. Lafrenière would only testify at her sole discretion, was that the boys’ time with Ms. Lafrenière was “not therapy”; rather it was “Shanna trying to get documents for court to make her look good”. Zackery also stated that Ms. Lafrenière “is not a therapist” and that “it is a sham”. At times, he refused to recognize it as therapy for the boys and referred to it as “unification therapy” for Shanna only. Clearly, Zackery was not supportive of the therapy with Ms. Lafrenière, which was ordered by the court. Undoubtedly, the boys were attuned to this lack of support.

[87] Although Zackery has demonstrated that he can meet the boys’ immediate physical needs, I find that he has not been able to meet their educational, medical or psychological needs. Based on her history of advocating for and engaging in services for C. and K., I find additionally that Shanna is more likely to do so.

Development and Maintenance of the Child’s Relationship with the Other Parent

[88] Regarding this best interest factor set out in subsection 24(3) of the Children’s Law Reform Act, Zackery has utterly failed to demonstrate any ability to support and maintain C. and K.’s relationship with Shanna.

[89] From the outset, after the children came into his care on October 11, 2018, Zackery has refused for Shanna to have parenting time with them (October of 2018 to June of 2019), interfered with or disrupted the parenting time she did have (March of 2021 to June of 2022), accused Shanna of abusing or causing injury to the children, accused Shanna of poisoning the children, accused Shanna or her partner, Michael, of locking the children in their rooms, accused Michael of “staring at” C.’s penis, accused Shanna of having a gun in her home, and accused Shanna of hitting and yelling at the children.

[90] Zackery is convinced that Shanna physically assaulted C. and attempted to kill K. on October 11, 2018. Although Zackery states that he is supportive of Shanna, and that he encourages the children to see her, his actions and attitudes belie this. One of the most blatant examples is the position Zackery took in relation to Shanna’s parenting time after unilaterally stopping it in March of 2021. Two incidents occurred in March – first K. sustained a possible concussion while riding in Shanna’s car on March 14, 2021, and second, Shanna grabbed S. at the door of the school when he was refusing to go with her for parenting time on March 17, 2021.

[91] The Children’s Aid Society of Ottawa was apprised of both incidents, the first by telephone call from OPS Constable Nesbitt on March 15, 2021, who was not pursuing any charges, and the second by W.O. Mitchell school personnel on March 18, 2021. On March 19, 2021, CPW Victoria McAllister wrote a letter to both parents regarding these incidents. Ms. McAllister wrote [29] :

The Society is worried about the level of fear [C.] expresses to have of his mother and this has been demonstrated physically, emotionally, and verbally in the above noted incident on March 17. [C.] expressed that “his mother “is going to kill me”. [C.] also advised that he was scared to go to his mother’s without [K.] and was refusing to attend access by physically holding onto the door frame while Shanna continued to pull at him attempting to remove him physically which could result in physical injury. Further, the Society is worried that with ongoing access with the mother without a counsellor present that the children will continue to be emotionally impacted by access as the children have demonstrate reluctance and fear of attending access. There have been ongoing reports from the children regarding Shanna using physical force. The Society is concerned with the mother’s current state of mental health due to her management and reaction to this incident.

This letter is written to advise of our concerns for your children and their ongoing access with Shanna Johnson due to their expressed level of fear and demonstrated physical resistance in attending access. Attempts were made to reach Shanna to discuss this incident, but no response was received from her.

[92] Zackery took the reference to “without a counsellor being present” to mean that it was the Society’s position that Shanna’s access to the children required supervision. This was despite that the Society twice wrote to the parents clarifying its position in this regard. On July 28, 2021, CPW Stephanie Belanger wrote a lengthy letter to both parents setting out the history of the Society’s involvement with the family. Ms. Belanger indicated the following in her letter [30] :

During the current involvement, the Society was asked to investigate if there are any current concerns that would warrant taking more intrusive measures such as the Society insisting on a limitation of Ms. Johnson’s access rights. There are still concerns about Ms. Johnson’s mental health/regulation, and post-separation partner conflict. In the course of my work with the family, I have also developed concerns about Mr. Apps willingness to secure treatment and support for the children’s mental health needs. Despite these worries, I can advise that there are no child welfare reasons that would warrant the Society taking a position on custody and access.

The Society understands that you are presenting your positions in the Family Court and that the Court will be making a decision with respect to the best interest of the children. The Society has no child welfare reason to intervene with this process since the Court will receive all the information necessary to determine how and when Ms. Johnson can have contact with the children. (Page 1)

Ms. Johnson has made many pleas to the Society to have her access reinstated. It should be noted that the Society has never interfered or limited Ms. Johnson’s access. It appears that the March 2021 letter was misconstrued as recommending a limit on her exercising her access rights. (Page 2)

[93] On July 30, 2021, in response to Shanna’s demand that the existing court order be complied with by Zackery, his then lawyer, Mr. Langevin stated in an email [31] : “I suggest you disclose the name of the counsellor and then we can get on with setting up access. That March CAS letter was very clear on my read.”

[94] On August 3, 2021, CAS counsel, Tara MacDougall, wrote a further letter to the parents clarifying the Society’s position. While the Society continued to believe that a counsellor for the children would be helpful to Shanna, Ms. MacDougall indicated [32] :

I wish to reiterate in the strongest of terms, the Society is not taking a position on custody or access; we currently have no child welfare reason to insist on any specific terms of custody or access arrangements for either parent. (Emphasis is original)

[95] Despite these very clear messages from the Children’s Aid Society of Ottawa, Zackery maintained the position that a counsellor needed to be present or that Shanna’s access to the children needed to be supervised, notwithstanding the existing order of Justice Audet dated July 23, 2020. It was for this reason that Shanna sought to have the issue of her parenting time deemed urgent in September of 2021, as set out above, which resulted in Justice Audet attempting to move the matter on to trial and in Justice MacEachern in January of 2022 urging compliance with the existing order by Zackery, while at the same time encouraging Shanna to commence with supervised access with the children, which she shortly did at her own expense. As a result of Zackery’s position, Shanna lost parenting time with the children from March of 2021 to her first supervised visit on March 2, 2022.

[96] As noted above, Shanna exercised supervised parenting time on March 2, 13, 16, 20, April 3, 17, May 1, 8 and June 1, 2022. The access supervisor’s notes of those visits [33] , as well as her testimony, reveal that boys were generally happy to see Shanna and had warm and loving interactions with her, even after having been prevented from seeing her for nearly a year. This seemed particularly true of K., who frequently sought Shanna out to cuddle. The boys consistently expressed missing Shanna, loving Shanna and wanting to be with Shanna more. However, on certain occasions, one or the other of the boys were more dysregulated. On those occasions, their pronouncements were incongruent with their overall experience. For example, the access supervisor, Duaa Affat’s note for March 16, 2022, reveals that C. made the following statements:, “Shanna is going to steal us and kidnap us”, “She wants to steal and kidnap [K.] and me”, “Shanna talks like a baby and it’s her narcissist voice, she is all fake, she just wants to take us away from papa and she needs to stop”, “If you give papa a hard time then we will give you a hard time when we see you”, “Papa says he doesn’t want us to see you all the time but we see you sometimes and that’s enough”, “I don’t want [K.] to tell you all the bad things at home and I don’t want the supervisor to write it down so papa doesn’t get in trouble” and “I just don’t want to get in trouble by papa”. There was also an exchange between Shanna and C. as follows:

Shanna: “The day that I was at your school you told your teacher and principal that I tried to kill you and you ran inside the school. Was that true? C.: “I just said that and I was overreacting. You didn’t want to kill me. I just said it.” Shanna: “Well I don’t like it when you don’t tell the truth and what you said isn’t right and not the truth.” C.: “Yeah I know and I’m sorry for overreacting. I didn’t mean to.”

[97] Upon return of the boys to Zackery at the exchange, Ms. Affatt noted C. to state to Zackery: “I told the supervisor to write down that Shanna is going to kidnap us and she told me and [K.] that we can sleep over.”

[98] On the same date, in response to a query from Shanna if he was okay after the previous Sunday’s exchange, K. stated: “I’m ok and papa says that you said he pushed me.” He also was noted to make the following statements: “She is going to kidnap me”, “You’re a liar and a bad mama”, “You are a bad mama and you know it”, “I’m just mad at you about your lies on Sunday” and “Vananh (Zackery’s girlfriend) threatened to cut [C.’s] stuffies all the time when he is bad”.

[99] As indicated, these statements from both boys were incongruent with the visit itself, which entailed St. Patrick’s Day celebrations, coloring and playing, preparing and having a meal, expressions of Shanna and the boys loving and missing each other and watching TV and cuddling.

[100] The boys dysregulation, and particularly K.’s, on this date was preceded by an exchange gone bad at the last visit on March 13, 2021. Ms. Affatt described it thus in her note:

5:00 pm

The writer and [C.] meet Zackery outside the Superdome parking lot. The writer does the exchange and reveals that [K.] is upset and crying. The writer says: “[K.] mentioned a few times that he wanted to die, that he is ugly and he doesn't feel safe”. Zackery didn’t respond. He just looked at the writer. The writer said: “[K.] doesn’t want to get out of Shanna’s vehicle. [K.] says he doesn’t feel safe and [C.] always hits him”.

Zackery says: “Well it’s my kid and I'll go get him from her car”. The writer said: “You are too close to Shanna’s vehicle. Can you please wait by your truck?” Zackery replies: “No, I’m not waiting by my truck and I'm going to get my kid out of her car”. Zackery refuses to go back to his truck. He is very close to Shanna’s vehicle.

The writer calls Melissa Emon at 5:03 pm. The writer goes back to Shanna’s vehicle and asks: “Can you both please get out of your car and walk towards the dome so Zackery can come and get [K.] out of your vehicle?” Shanna said: “Sure we can do that, but he doesn’t feel safe right now”. The writer says: “Please email or call Melissa with all your concerns and questions”.

Both Shanna and Michael leave the car and walk towards the dome. The writer says to [K.]: “It’s time to go home with your dad and he is waiting for you”. [K.] says: “I want to go home with mama. l don't feel safe and l don't want to get hit again”. Zackery yells: “[K.], let’s go”. [K.] shakes his head and says: “no”. Zackery yells: “[K.]”. [K.] gets out of the car. He runs away from Zackery. Zackery grabs [K.] by his arm and [K.] falls to the ground. [K.] screams and cries saying: “l don’t want to go home”. [K.] refuses to get into the vehicle. Zackery forces [K.] into the car. Zackery puts [K.’s] seatbelt on and [K.] has his head down. Zackery left at 5:09 pm. Shanna left at 5:10 pm

[101] As a result of Zackery’s physical handling of K. on March 13, 2021, Ms. Affatt made a report to the CAS of Ottawa pursuant to her statutory duty to report, which may explain some of the comments of the children at the March 16, 2021, visit.

[102] The next visit that was problematic for the children was on April 17, 2023. On that date, Zackery approached Ms. Affatt at the commencement of the visit and berated her about her report to the Society. Ms. Affatt’s notes the following:

At 11:05 am Zackery arrives. Zackery exits his car and approaches the writer. [K.] and [C.] remain in the vehicle.

Zackery walks to the writer and aggressively says: “Can I ask you something?” The writer replies: “Hi, sure”. Zackery starts yelling and shouting at the writer. He says: “Can you stop lying to CAS and stop accusing me of being a bad parent?” The writer responds: “I’m sorry you feel that way, but l made that call, and it was my duty to report what happened”. Zackery walks toward the writer and yells and shouts in the writer's face and says: “You're a liar, a fucking liar, and you're accusing me. it’s all fucking lies”.

Zackery is pointing and shaking his finger in the writer's face. The writer moves back and says: “Please move back, you're too close to me and I feel uncomfortable”. Zachery stops and stares at the writer. He has an angry look on his face. Zackery moves back and says: “I’m going to record this to protect myself from your lies”.

Zackery was arguing with the writer about the CAS call that was made on March 14, 2022. Zackery goes into his car, grabs his phone, and starts to record the writer. The writer says: “We are here for an Easter visit”. [K.] and [C.] get out of the car and stand there listening to Zackery arguing with the writer. They look scared. The writer calls Melissa Emon, Intake Coordinator at Renew Supervision Services.

Shanna's dad, Daniel, comes out of his vehicle because he was concerned about the safety of the writer. Daniel asks: “Is everything okay?” Zackery yells: “Mind your own business, get back into your car”. Daniel asks: “Duaa are you okay and safe?” The writer replies: “Please go back to your car”. Zackery and Daniel yell at each other. They put their middle fingers up at each other.

Daniel goes back into his vehicle. Zackery says to the writer: “I don’t even want you here or supervising my kid's visits. You're a liar”. The writer says: “Stop yelling at me. We are here for a visit, the end of the conversation about CAS. Do you want to continue with the visit, or do you want to end the visit and leave?” Zackery keeps calling the writer a liar and is saying he does not want the writer to supervise the visits.

Zackery states: “I drove for an hour”. The writer says: “Okay”. A passing motorist stops his vehicle and asks if everything was okay. Zackery tells the motorist: “Yes, we are fine sir, we are just doing an exchange”. Zackery smiles at the motorists. The motorist drives off but parks a few metres away with his window down. The writer did not say anything to the motorist as the writer was scared.

Zackery continues to yell and shout at the writer about the CAS call and says he is being investigated and it is all lies. The Ottawa police are called by Renew to support the exchange. The writer asks: “Can we continue with the exchange?” Zackery says: “Fine”. Zackery says to [K.] and [C.]: Remember what I told you to do”. [K.] and [C.] nod. The writer, [K.], and [C.] walk to Shanna’s vehicle. Shanna hugs and kisses the children. Shanna puts the children into the vehicle and buckles them in.

[103] During this visit, [K.] stated to the access supervisor: “You’re a liar, you lied, and I hate you.” He also stated to Shanna: “Go away, you are going to steal me, and I hate you”, “No, I’m mad at you and I hate you”, “Yeah, Duaa is a liar. She doesn’t deserve it”, “I hate everyone” and “No she is a liar [referring to Duaa]”. Again, these statements were incongruous with the overall execution of the visit, which entailed Easter celebrations, gifts for C.’s birthday, game playing, expressions of love and affection, and hugs and cuddling.

[104] K. seemed to be particularly dysregulated at the May 1, 2021, visit. On that date, K. is noted to have stated to Shanna: “I don’t want a hug from you. You are lazy. You just go on your phone and you are dumb. You don’t care about your kids”, “You’re mean to me and you choked me”, “You hurt me! You almost killed me”, “Well, you tried to choke me”, “If you were a better mom, it wouldn’t have happened”, “You just go on your phone. You are an idiot”, “You are a liar. Dad was a pet groomer and he was making the money”, “You’re being mean to me every second”, “You are a liar. You are bugging me”, “If you didn’t choke me, this court thing wouldn’t have happened” and “You are not a mom. You are an abuser”. C. also stated to Ms. Affatt: “Your notes are inaccurate”.

[105] These statements by the children evince, in my view, that they are heavily influenced by Zackery’s narrative, and that they are receiving information from him regarding the contents of Ms. Affatt’s notes and/or the litigation. They clearly feel compelled to parrot Zackery’s positions, and they do so, notwithstanding that their interactions with Shanna, her partner, Michael, and their maternal grandfather, Daniel, are generally positive and affectionate.

[106] As is noted above, by June of 2022, Shanna’s parenting time moved to being unsupervised and was being incrementally increased. This did not prevent Zackery from interfering with it, whether by calling the police alleging that she was intoxicated, preventing her from picking up the children because she was alone with her daughter in the car, not allowing Michael to pick them up on his own [34] , or her parenting time ultimately ceasing to occur altogether as of May 2023.

[107] Shanna’s position is that S.’s visit to the Kemptville District Hospital on May 5, 2023, is illustrative of both Zackery’s paranoia and his modis operandi. According to Shanna, Zackery very much wants C. and K. to be afraid of their mother. He also seeks to convince others, particularly professionals in the community, that they are.

[108] The “history” given by both Zackery and C. to Dr. Gravelle on May 5, 2023, is bizarre, to say the least. Shanna’s new partner, with whom she shares a daughter, testified twice in this trial, on January 30 and June 22, 2023. Michael was very concerned about some of the statements made to him or in his presence by the children, and the stress under which they appeared to be living in the care of their father. Michael too has been accused of many things by Zackery, such as staring at C.’s penis, locking the boys in a room, having videos of same-sex activity on his phone accessible to C., and, of course, being the subject of sex change processes, all of which he has denied, and none of which were supported by the evidence given at trial.

[109] Zackery, indeed, seems incapable of supporting C. and K. in having a loving, meaningful relationship with Shanna.

Communication and Cooperation

[110] Zackery seems equally incapable of communicating and cooperating with Shanna on matters affecting the children.

[111] A prime example of this is with respect to C. and K.’s schooling. When the boys were both expelled from Pinecrest Public School, Zackery did not consult with Shanna on into what school they should attempt to next get C. and K. Rather, Zackery arranged for C. and K. to be enrolled in Manordale Public School, which his sister, Samantha’s kids were also attending. Shanna did not agree with this choice as she envisioned issues of adult conflict arising, based on both Samantha and Susan frequently attending the school to pick up Samantha’s children. On Friday, March 24, 2023, Shanna wrote an email to Shannon Smith of the Ottawa-Carleton District School Board, advising that she was not in agreement with the boys’ enrollment at Manordale, and asking for another school in the boys’ catchment area to be identified. However, despite Shanna’s opposition, the boys were spoken to about the school and were excited about attending. Shanna, therefore provided her consent on Monday, March 27, 2023 in an email to Ms. Smith, in which she indicated the following [35] :

I had the boys over the weekend and it appears they have been talked to about Manordale and now have their hearts set on going there with their cousins. They expressed they would be very upset if I didn’t agree to them going there. It seems I have no choice now but to agree and allow them to go to Manordale since this was already discussed with them before the adults actually agreeing.

I will have to make arrangements with the school for me to pick them from and drop them off from the office or a different entrance than the main one so as to avoid congregating with Zac’s family.

[112] Zackery and Susan were both very negative about Shanna not consenting to the children attending Manordale, even though she ultimately did as “their hearts [were] set on going there”. In other words, Shanna acted in the children’s best interests, notwithstanding that she did not agree with the choice of school. Shanna’s stated concern, moreover, proved to be a valid one. Interactions at the school between Shanna and Zackery’s family members were fraught with difficulties. This included the involvement of Samantha’s eldest child in certain instances where the boys ran from Shanna at scheduled exchanges. As indicated above, on June 13, 2023, both parents received a letter by email from counsel for the OCD School Board, Richard Sinclair, in which he stated:

I have had the opportunity to review this matter with Principal Simpson and Superintendent Baker. My understanding is that the children have been refusing to voluntarily leave the school with Ms. Johnson, and that in some cases they have tried to run away from the school. This has also led to ongoing adult conflict at Manordale tied to pickup. The current situation is not sustainable, and cannot be permitted to persist. It is creating risk to our staff, and is exposing our staff and students to this conflict. Moreover, it is exposing your children to adult conflict in a manner that is not in their best interest, and we will no longer tolerate this situation taking place at the school.

Principal Simpson and Superintendents Baker and Smith have all made clear that school staff will not restrain or block the children in order to physically compel them to leave the building with Ms. Johnson at the end of the school day.

As such, effective immediately we have made the determination that the exchange in parenting time can no longer take place at Manordale Public School. This means that we will not permit Ms. Johnson to pick up the children on days in which she has parenting time. Going forward, parenting time exchanges must take place off of school property. School staff will not release the children to Ms. Johnson, and will instead release them only to Mr. Apps or to someone designated by him to pick them up. It is our expectation that Mr. Apps will then make arrangements for the exchange to take place at a neutral site, off of school property.

[113] Zackery’s position was that this letter evinced that the view of school personnel was that Shanna was the problem. However, this is not what the letter says. In fact, it reinforces Shanna’s original concern that having the children attend Manordale would lead to “ongoing adult conflict at Manordale tied to pickup”, which is indeed what happened. Contrary to Zackery’s view, Shanna was not being barred from Manordale. Rather, the school staff was not prepared to have the exchanges continue to occur at Mandordale for the reasons stated, though they did still expected the exchanges to take place.

[114] Another example of Zackery’s inability to communicate and cooperate with Shanna, as has already been commented upon above, was in relation to the provision of services for the children. Although Zackery attempted to blame Shanna for the lack of certain services, he presented no evidence of any effort on his part to consult with her or directly seek her consent for same, even through Susan, if necessary. Zackery has simply not involved Shanna in anything relating to the care of the children from the day they came to live with him.

Sheltering from Family Violence and/or Adult Conflict

[115] This case has a history of both parents failing to shelter the children from family violence and adult conflict. Shanna’s position is that one of the issues with which C. has been dealing is the post-traumatic stress he has experienced because of the violence perpetrated by Zackery during the relationship. This is supported in some of the early documentation on the file, including CAS records and Dr. James’ assessment of C. in late 2017. Zackery’s position is that both boys, but particularly K. has suffered from post-traumatic stress because of Shanna’s actions on October 11, 2018.

[116] Clearly, these children have been exposed to a great deal of turmoil in their young lives. However, the evidence reveals that Zackery continues to reenforce, not just with the boys, but with anyone with whom he comes into contact, that Shanna attempted to kill K. and that she continues to present a danger to C. and K. The boys, moreover, parrot Zackery’s narrative, even in circumstances in which one would not expect that to be the case. Additionally, Zackery’s outburst with Ms. Affatt on April 17, 2021, is illustrative of Zackery willingly or neglectfully exposing the children to violence/conflict. His behaviour was so alarming on that occasion that a passing motorist stopped to check if Ms. Affatt was okay and would not leave to ensure she was.

[117] At times, Shanna’s response to Zackery or Susan has not been helpful. She has become upset, and police have been called on many occasions to either enforce her parenting time or to document its denial. Additionally, Renew Supervision Services required the presence of police to protect Ms. Affatt from Zackery’s aggression [36] . Both Zackery and Susan have accused Shanna of calling the police “on the children”, as opposed to on Zackery or due to his behaviours. Regardless of the reason for which police are called, C. and K. have been exposed to them much more than children ought to be.

[118] All of this has damaged the children’s emotional and psychological safety. Most significantly, fostering in the children a strong fear of their mother, has severely impacted their emotional and psychological safety. Except for the fact that something happened on October 11, 2018, about which little is actually known, there is no evidence which supports that supposition. In fact, the opposite is true. Unlike when Zackery disappeared from the children’s lives of his own volition, only to be reintroduced at the initiative of Shanna, Shanna has never done so. She has fought to be a presence in their lives from the day they left her primary care. Shanna has never given up on the C. and K., even over extensive periods of forced absence. She has constantly sought to re-establish and maintain her relationship with the children, and she has tirelessly advocated for appropriate resources for them, even though she had no control over them being able to benefit from same.

[119] Shanna has also continued to work on herself and her mental health challenges. Shanna was very open about her previous struggles, particularly in 2017/18 and an attempted suicide in the fall of 2020. She acknowledged her diagnosis of having traits of borderline personality disorder (“BPD”) and spoke to the work that she has done over the years to address it, as did her long-time counsellor, Nichelle Bradley. Although Shanna imbibed little, she identified that alcohol was not a good mix with her diagnosis and testified that she stopped drinking any alcohol in late 2020. Additionally, Shanna has worked through Dialectical Behaviour Therapy (“DBT”) and mindfulness to manage her BPD such that she no longer requires medication.

[120] Ms. Bradley was qualified as a participant expert in clinical psychotherapy. Her evidence was that Shanna has been a client of the Primrose Medical Clinic since 2016.

[121] Ms. Bradley confirmed that Shanna has received DBT, which she described as a form of therapy for people living with intense emotions and which teaches skills to cope with those intensities. Ms. Bradley reported that Shanna was “doing really well with that”, and that she has seen other therapists as well, especially one Jennifer Nelson, whose expertise is in DBT. Ms. Bradley also confirmed that Shanna as not consumed alcohol since late 2020. Ms. Bradley was impressed with Shanna’s openness to resources and her commitment to self-care.

[122] Ms. Bradley’s evidence was that in her 25 years of practice, she has never seen anyone more determined that Shanna. She described Shanna as having incite, knowing her triggers and wanting what was best for her children and herself. She saw Shanna as “very, very devoted to the care of her children”. Ms. Bradley had no concerns for Shanna’s mental health currently but noted that she would need to maintain her skills in regulating her emotions.

[123] Zackery too is noted to have a troubling mental health history, which included references to schizophrenia, paranoia, and anxiety, to the latter of which admits. Indeed, Zackery testified that he is on ODSP due to an anxiety disorder. Unlike Shanna, however, Zackery did not provide any evidence of concrete steps he has taken to address his issues.

Conclusions

[124] As was indicated above, at the conclusion of the second re-opening of the trial, I made a temporary order placing C. and K. in the primary care of Shanna with sole decision-making authority resting with her and limited parenting time with Zackery pending the release of this decision. I did so as the evidence to that date was clear that C. and K. were being negatively influenced by Zackery and his support persons to such an extent that it was unlikely that they would have any relationship with Shanna at all if the status quo continued.

[125] On the issue of credibility, where there have been diversions in the evidence (which is with most of the evidence led at trial), I have preferred Shanna’s evidence over that of Zackery. My reasons for this are several. First, as I have indicated, Shanna was extremely forthright about her past, including in relation to evidence that was not flattering to her. Second, documentary evidence presented by both parties tended to support Shanna’s version of events. For example, while Zackery insisted that the Children’s Aid Society of Ottawa removed the children from her care in the fall of 2017, the Society’s records confirmed Shanna’s version of events, which was that the Society agreed with her mother stepping in to help Shanna on a voluntary basis. Similarly, Shanna’s evidence about providing consents for services and about seeking out services for the children in the first place was also supported by the documentary evidence filed. Documentary evidence from the Primrose Medical Clinic, additionally, supported both Shanna and Ms. Bradley’s evidence with respect to attending to her mental health issues. Third, Zackery’s evidence was deflective, in that he tended to blame others, be it Shanna, the police, the CAS, school personnel, Renew Supervision or medical practitioners for any issues arising for the children. Zackery took absolutely no responsibility for how these children’s lives have unfolded or why their needs have not been met. Finally, Zackery’s evidence was at times incredulous. His insistence, for example, that Shanna was attempting to poison the children, or that Michael is transgendered, defied belief.

[126] Based on all the above, I find that it is in the best interests of C. and K. that they continue to reside primarily with their mother, and that she continues to have sole decision-making authority over them. Shanna has proven herself to be an effective advocate for the children, and I have little doubt that she will engage them in the services they need, something that Zackery has failed to do for four and a half years. While consultation with Zackery (through Susan, if necessary) will be required, Shanna shall have the exclusive authority to make all major decisions for them.

[127] At the time of my temporary order, I briefly suspended parenting time with Zackery to allow the children to settle in with Shanna absent his strong negative influence. This was to be followed with supervised parenting time with C. and K. for a minimum of two hours per week with the cost of such supervision to be born by Zackery. I have no knowledge as to whether Zackery has arranged and accessed such parenting time since the date of my order.

[128] Zackery has a great deal to offer C. and K. He is skilled in outdoor pursuits. He has Indigenous heritage, and possibly teachings and knowledge to pass on to the children. He is curious and knowledgeable regarding history and exploration. Zackery loves C. and K. Unfortunately, he has been unable to put the boys needs ahead of his own view of Shanna. Zackery’s role with C. and K. will be uncertain so long as he sees Shanna as a person who seeks to do them harm, rather than as a parent who is loving and devoted to them. Further evidence will, therefore, be required to ascertain what parenting time with Zackery going forward will be in the best interests of the children.

[129] Additionally, given the change in the parenting schedule, the need for an ongoing restraining order will need to be addressed upon the return of this matter to court. In the interim, I make no change to the existing restraining order.

Order

[130] Based on all the above, there shall be an Order as follows:

1. The Applicant Mother shall have sole, final decision-making authority over the children, C.J. born April 26, 2012, and K.J. born August 1, 2014.
2. The Applicant Mother shall consult with the Respondent father on major decisions affecting the children and shall consider his input, if any, but she shall have the sole authority to make final decisions for them.
3. The children shall reside primarily in the care of the Applicant Mother on a final basis.
4. The parties shall arrange a further two-day hearing through the office of the Trial Coordinator for the court to determine what final parenting time order for the Respondent Father will be in the children’s best interests. In the interim, the Respondent Father’s parenting time shall continue in accordance with my temporary order dated June 23, 2023.
5. The evidence-in-chief for the continuation of the hearing shall be by affidavit. The Respondent Father shall serve and file 10 days before the hearing date an affidavit of no more than 10 double-spaced, 12-font pages, as well as necessary exhibits, which shall include all supervised parenting time reports (if any) completed since July 24, 2024.
6. The Applicant Mother shall serve and file 5 days in advance of the hearing her affidavit of no more than 10 double-spaced, 12-font pages, as well as necessary exhibits.
7. Each party will be permitted to cross-examine the other on their respective affidavits at the hearing.
8. The court reserves the right to hear other evidence on the issue of the Respondent’s parenting time, if necessary. However, leave of the court will be required if either party seeks to call any evidence beyond their affidavits referred to above.

Engelking J. Date: November 28, 2023

[1] Trial Exhibit #40, Synopsis of Interview of K.J. by Detective Helen Grus dated October 11, 2018 [2] Trial Exhibit #40, Synopsis of Interview of C.J. by Detective Helen Grus dated October 11, 2018 [3] Trial Exhibit #93, Undertaking of Shanna Johnson dated February 28, 2019 [4] Trial Exhibit #55, Supervision Note of Coleen McInnis dated January 28, 2019 [5] Trial Exhibit #51, Contact Log of Matthew Lafosse dated February 20, 2019 [6] Endorsement of Justice Audet dated April 24, 2019 [7] Trial Exhibit #56, Contact Log of Matthew Lafosse dated March 12, 2020 [8] Trial Exhibit #23, Attendance History for C. dated November 17, 2022 [9] Trial Exhibit #22, Attendance History for K. dated November 17, 2022 [10] Trial Exhibit #66, Email from Jeffrey Langevin to Shanna Johnson dated July 30, 2021 [11] Trial Exhibits #30 and #31, Attendance Profiles, Pinecrest P.S., for C. and K. from September 1, 2021 to June 30, 2022 [12] Trial Exhibit #38, Letter from Cara Diamond to Mr. Emery dated April 28, 2020 [13] Trial Exhibit #37,Contact Log of Matthew Lafosse dated April 17, 2019. [14] Trial Exhibit #6, Letter of Dr. Sasani to Dr. Wanes Hana dated May 27, 2019 [15] Trial Exhibit #34, Letter from Dr. Sasani addressed To Whom It May Concern dated May 23, 2019 [16] Trial Exhibit #8, Letter from A.M. Brownrigg to Dr. Sasani dated May 29, 2021 [17] Trial Exhibit #5, Letter of Dr. Lelli to Dr. Wanes Hana dated November 22, 2019 [18] Trial Exhibit #32, Letter of Dr. Buking to Dr. Wanes Hana dated April 21, 2021 [19] Trial Exhibits #14 and #15 [20] Trial Exhibit #79, CHEO clinical note of Dr. William James dated November 2, 2017 [21] Trial Exhibit #79, Letter from Dr. James to Dr. Hurley dated November 2, 2017 [22] Trial Exhibit #25, text message exchange between Shanna Johnson and Zackery Apps dated September 10, 2018 [23] Trial Exhibit #44, text message exchange between Shanna Johnson and Susan Klassen dated September 19, 2018 [24] Trial Exhibit #26, text message exchange between Shanna Johnson and Zackery Apps dated September 19, 2019 [25] Trial Exhibit #51, email from Ashley Costain to Shanna Johnson dated October 4, 2018 [26] Trial Exhibit #50, Patient Medical History for [C.J.] from Russell MacDonald Pharmacy Inc. printed on January 6, 2023 [27] Trial Exhibit #132, Kemptville District Hospital, Emergency Department – Summary of Care for C.J. dated May 5, 2023 [28] Trial Exhibit #69, Email from Renew Supervision Services to parents’ counsel and parents dated March 14, 2022 [29] Trial Exhibit #63, Letter from Victoria McAllister to Shanna Johnson and Zackery Apps dated March 19, 2021 [30] Trial Exhibit #67, Letter from Stephanie Belanger to Shanna Johnson and Zackery Apps dated July 28, 2021 [31] Trial Exhibit #66, Email exchange between Shanna Johnson and Jeffrey Langevin dated July 30, 2021 [32] Trial Exhibit #68, Letter from Tara MacDougall to Shanna Johnson and Zackery Apps dated August 3, 2021 [33] Trial Exhibits #72 and 73, Renew Access Supervision Notes March 2 through June 1, 2022 [34] Trial Exhibit #110, Email exchange between Shanna Johnson and Susan Klassen dated March 14-15, 2023 [35] Trial Exhibit #112, Email exchange between Shanna Johnson and Shannon Smith dated March 24 -27, 2023 [36] Trial Exhibit #41, Email from Joyann Oliver, Co-Director, Renew Supervision to Zackery Apps dated April 17, 2022