G.Y. v. C.Y., 2024 ONSC 1673

COURT FILE NO.: FS-22-29169

DATE: 20241202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.Y.

Applicant

– and –

C.Y.

Respondent

Self-Represented Applicant

Self-Represented Respondent

HEARD: January 29, 30, 31, February 1, 2, 5, 6,7,8,9,20,22,23, March 7, 2024, April 5, 2024

a.p. ramsay j.

I. Introduction

[1] M. is very much loved by her parents. However, her parents have been involved in a high conflict family law proceeding, with serious allegations of family violence and sexual abuse of the parties’ child, M., said to be perpetrated by the applicant father. The parties do not dispute that there was family violence, but they disagree on who the perpetrator was, and who the victim of the violence was.

[2] The applicant was arrested in December 2021, on allegations of domestic violence. The police initially laid charges against the applicant. Since the separation, the respondent has reported approximately 50 allegations of intimate partner violence and coercive control, not including the abuse allegations against M. The police withdrew the charges, laying more charges after receiving a further complaint related to incidents which allegedly occurred before the parties separated. Those charges are still outstanding.

[3] Since the separation, M., who was four and a half at the time the parties separated, has told several individuals of incidents giving rise to allegations that the applicant sexually abused her and physically harmed her. The Toronto Police Services (“TPS”), Children’s Aid Society (“CAS”), and the Children and Youth Advocacy Centre (“CYAC”) all investigated the allegations. None of the authorities or agencies involved have concluded that the applicant sexually abused his daughter. The police did not lay charges regarding the sexual abuse allegations.

[4] The applicant has not had any parenting time since the time of his arrest, save for one supervised visit on January 31, 2023, facilitated by virtue of a s. 30 assessment under the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[5] Twelve family law judges have been involved in this case; six of these judges have made orders for the applicant to have supervised parenting time. There have been nine court orders for parenting time for the applicant. Of the 51 supervised parenting visits scheduled, only one took place in the context of the s. 30 assessment. The applicant brought several contempt motions, but only one was heard on its merit and ultimately not granted, primarily because of the record at the time.

[6] Costs awards have been made against the respondent for failing to comply with the court’s orders in relation to the applicant’s parenting time and failing to complete required paperwork required by the chosen supervising facilities. These costs awards are still outstanding.

[7] The trial was set down for five days but lasted 14 days, as the trial estimate provided by the parties was inaccurate. After the first few days of trial, the respondent was representing herself and by the fourth day, so was the applicant, save for the cross-examination of the respondent, completed by the applicant’s agent, Eva Chan. With the assistance of their agents in the background – Ms. Chan, for the applicant, and Jessica Cohen, for the respondent – the parties were able to navigate a very difficult trial. The court extends its thanks to both lawyers. The parties always came prepared each day and showed a remarkable mastery of the documents and CaseLines (now Case Center).

II. Nature of relief sought

[8] The applicant is seeking an immediate change of residence for M., a minimum 90-day suspension of contact for the respondent, sole decision-making authority, partition and sale of the matrimonial home, and other relief.

[9] The applicant is also seeking a publication ban and sealing of the continuing record to protect the identity of M., who turned seven before the trial concluded.

III. Background

[10] The applicant father is 41 years old and is self-employed. He owns his own business. The applicant was born in Canada and is Chinese. His family is from Hong Kong. He currently lives with his parents in Scarborough. He and his parents are Christian. The applicant and his parents speak English and Cantonese.

[11] The respondent mother is 40 years old. She was born in Jamaica and speaks English. The respondent is Catholic. Her father passed away in 2014. Her mother lives in Ontario, but the two appear to have an estranged relationship. The respondent is a university graduate and last worked as a manager in 2018. She had an online business selling cosmetics.

[12] The parties met in university in 2006. They started cohabitating in or around 2008. They married on May 21, 2011. They have one child, M., born [xx] 2017, now seven years old. M. resided with both parties from her birth until the applicant’s arrest on December 28, 2021, discussed below.

[13] The respondent currently resides in the jointly owned matrimonial home with M. and has been her sole care giver since the parties separated. M. is homeschooled by the respondent.

[14] The parties jointly own the matrimonial home in the suburb of Etobicoke.

[15] On December 28, 2021, the parties effectively separated when a friend of the respondent, John Zagala, contacted TPS, and the police attended at the parties’ matrimonial home. The applicant was arrested and charged with five counts of assault and one count of uttering a death threat against the respondent, for incidents occurring between 2008 to 2021. Conditions were imposed on the applicant’s release, which included a prohibition from possessing weapons, and maintaining a distance of 200 metres from the matrimonial home.

[16] The applicant moved in with his parents after the arrest. He has not returned to the matrimonial home, other than to pick up some of his belongings afterwards while escorted by police.

[17] Shortly before the incident, the applicant had videotaped the child’s sleep schedule with her mother during the day, and reportedly threatened to call CAS due to a concern that the child was not getting enough daylight.

[18] A day after the applicant’s arrest, the police made a domestic violence report to CAS. The applicant moved in with his parents. He made a report to CAS about his concern about M. on the same day.

[19] The applicant commenced an Application on August 8, 2022, for decision-making responsibility, parenting time, and corollary relief.

[20] On October 14, 2022, the charges against the applicant were unconditionally withdrawn at the request of the Crown.

[21] Since their separation, the respondent has made additional allegations of serious family violence said to be perpetrated by the applicant against her and M. In February 2023, the respondent emailed TPS with 38 additional allegations of assault, threats, and property damage, among other things.

[22] In March 2023, CAS received a referral that the respondent mother had reported that M. shared with her that “Mr. Y[xx] used to use his finger to poke her private since she was three years old.” There were other incidents reported by the respondent mother, which she indicates that she had observed.

[23] In the months since the proceedings commenced, M. has made disclosure to several professionals who had a duty to report; in accordance with their obligation, these professionals have reported the allegations of sexual abuse to the CAS, and CAS has, in turn, reported the allegations to the police.

[24] On September 15, 2023, the applicant was charged with one count of criminal assault, which was said to have been committed in or around October 2020.

[25] Since the parties separated, CAS has opened and closed its file on several different occasions. CAS re-opened the file after receiving a new referral from individuals with a duty to report. The CAS made a “verification” that there had been “domestic violence” shortly after the receiving the initial referral, although they did not identify the author of the violence. CAS made no similar verification of sexual abuse by the applicant. CAS found inconsistencies in M.’s account.

[26] The applicant admits that there was family violence, but says he was the recipient and not the author of the violence. He has consistently denied that he sexually abused M., and says that she is being coached by the respondent. He agreed to supervised parenting, to facilitate parenting time with M., despite his denial that he perpetrated any violence. Since the separation in December 2021, there have been numerous court orders for supervised parenting time with M. by the applicant. The applicant has only seen M. once in the context of a supervised visit to facilitate a s. 30 assessment.

[27] Pursuant to an order of Faieta J. dated June 8, 2022, the parties retained Dr. Kimberly Harris to complete a s. 30 assessment under the Children's Law Reform Act. Dr. Harris concluded that there were two options available to the family: either “a therapeutic goodbye,” or a “custody reversal” (using the new legal terminology following the changes to the federal and provincial legislation in 2021), this would be a reversal of primary residence of the child and decision-making responsibility.

IV. Position of parties

[28] The following is the position of the parties.

The applicant

[29] The applicant father says the primary issue to be determined is parenting, and decision-making responsibility, the conditions to be placed on parenting to ensure M.s short term and long-term wellbeing, because of the respondent mother’s inability to support her relationship with him. He says that the respondent mother has mental health issues, and isolates their daughter from everyone, including family members.

[30] The applicant says the matrimonial home must be sold, and an amount be repaid to his parents, which he says was a loan for the down payment on the house.

[31] The applicant says that he has been the victim of domestic violence and says there is no truth to the allegations made by the respondent. He says that the respondent has coached their daughter to make sexual abuse allegations and has exposed her to adult language, in furtherance of alienating him from his daughter. He says the respondent seeks to gain an advantage in the litigation by involving the police and child protection authorities.

[32] The applicant says the respondent has delayed the court process, delayed attempts to involve professionals, impeded his ability to exercise parenting time with his daughter, and did not co-operate with professionals except where she stood to benefit. He says the respondent has not provided consent to M.’s therapist providing her file or to speak to Brayden to schedule further supervised visits. The applicant submits that the respondent’s gatekeeping and possessiveness of M. is harmful to M. and has resulted in alienating M. from him. He says that the respondent will argue that she needs to protect M., but what she has really done is made herself the trier of fact and decision maker in this court case. Her repeated allegations are roadblocks to this court proceeding. By refusing to obey court orders for parenting time, the applicant submits the respondent has built walls around M. She has completely undermined the supervised parenting visits, which would have given the court a window into his parenting of M. and their relationship. The applicant says that in truth, the respondent wants to bar the gates and pull up the drawbridge with M. protected inside the castle, and everyone else on the outside.

The respondent

[33] The respondent is seeking an order terminating all parenting time between M. and the applicant father. She says that a “therapeutic goodbye” or termination of parenting time is in M.’s best interests. The respondent says M. continues to suffer from extreme fear of the applicant, distress, anxiety, and trauma symptoms due to the physical, psychological, emotional, and sexual abuse perpetrated by the applicant against her, as well as her direct and indirect exposure to the applicant’s severe, chronic, and repetitive domestic violence and control.

[34] The respondent seeks an order granting her sole decision-making responsibility, that M.’s primary residence remain with her, that the applicant has no parenting time, a restraining order, and an order that the applicant shall not have access to information about the child including, her health, educational, and therapeutic records, among other relief.

[35] The respondent submits that she and her daughter have suffered and experienced substantiated abuse and domestic violence at the hands of the applicant. She says she lived in a state of constant terror because of the applicant’s volatility, unprovoked physical violence, threats, abuse, punishments, and restrictions/refusals for necessities. She submits that their lives, and even daily movements, were controlled by the applicant. She submits that the applicant’s cruelty against M. includes multiple psychological, physical, and sexual abuses. She argues that during the relationship, the applicant financially controlled her, and refused to allow her to work outside of the home.

V. The issues

[36] The following issues are raised in this trial:

i. Should the parties’ names, as well as that of their daughter, and the applicant’s company’s name be initialized?

ii. What parenting order arrangement is in M’s best interest?

iii. What is the income to be imputed to the respondent mother?

iv. What are the parties’ monthly child support obligations?

v. What income should be imputed, if any, to the parties for child support?

vi. What are the parties’ child support obligations and with respect to s. 7 expenses under the Federal Child Support Guidelines, SOR/97-175.

vii. How should the court deal with the partition and sale of the matrimonial home?

viii. Do the applicant’s parents’ have an equity interest in the matrimonial home?

ix. What equalization payment, if any, should be paid to either party?

x. What is the entitlement to spousal support?

VI. Preliminary matters

Publication ban/Sealing order

[37] The request for a publication ban and sealing order are denied, for the reasons below. Anonymization is an appropriate response to protect the privacy of this very young child, and the names of her parents.

[38] There is a presumption that court proceedings are open to the public. Court openness is protected by the constitutional entrenched guarantee of freedom of expression and is essential to our democracy: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 1.

[39] This presumption may be limited only in exceptional circumstances where there is a demonstrated and serious risk to an important competing public interest: Sherman, at para. 4. Any such restrictions must be no greater than necessary to protect the competing public interest: Sherman, at para. 4.

[40] As noted by the Supreme Court of Canada in Sherman:

Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance [Emphasis added].

[41] In Ontario, when a request is made for a discretionary order like a sealing order, a publication ban, or anonymization, Part V, Section F (Publication Bans) of the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice must be followed: Cao v. Monkhouse Law Professional Corporation, 2021 ONSC 7894 (Div. Ct.). Under this section, a party seeking a sealing order is required to give notice to the media as established by the jurisprudence.

[42] However, the court has discretion to dispense with the requirement to give notice.

[43] In Sherman, at para. 38, Kasirer J. re-cast the test for discretionary limits on presumptive court openness as had been set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522:

The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. To succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

1. court openness poses a serious risk to an important public interest;

2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness - for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order - properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments. [Internal citation omitted.]

[44] In the alternative of any motion or application, there are restrictions which are utilized in the family law context to protect vulnerable children, which includes initializing only the children’s names, or where there is a risk that the children will be identified if their parents are identified, then initializing the names of the parents as well. In this case, the applicant has also asked that the name of his company be restricted to the public.

[45] Having heard the evidence, which includes serious allegations of sexual abuse against a very young child, who has no voice, the court’s view is that some restriction is necessary to prevent serious harm to M. in the future. The salutary effects of such a restriction outweighs its deleterious effects on the open court principle, and there is ample precedent for such orders: Foulidis v. Foulidis, 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18; S.M. v. C.T., 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28; G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, 46 R.F.L. (8th) 357, at paras. 43-44. If the parties were seeking a parenting order under the provincial Children’s Law Reform Act, they would have resort to s. 70 of the Act to seek an order restricting public access to the court file, or on the publication of information that has the effect of identifying any person referred to in any document in the court file.

[46] Finally, the court adopts the rationale for the restrictions set out by Chappel J. at paras. 7-9 of S.V.G. v. V.G., 2023 ONSC 3206, 93 R.F.L. (8th) 77.

Redaction of records

[47] The parties filed documents which were redacted (ex. CAS file, exhibits to affidavit), without obtaining a court order to do so. The same principles above apply to all materials filed in court. There are redactions of names of authors of emails received, contact information, “witness” names, and individuals who submitted reports. Especially in a case where credibility is an issue, full disclosure and transparency of the records is critical. The fact that the records before the court are redacted is also antithetical to the court’s open court principle.

Evidentiary issues at trial

[48] Evidence at a family law trial is viva voce, unless leave is given to file affidavits, which occurred in this case. Affidavit evidence at a trial must comply with the rules of evidence. A deponent can only give evidence on matters which are within their personal knowledge, just as if they were testifying in court. The affidavit of each of the parties, which was their evidence in chief, contained a significant amount of inadmissible evidence. For the respondent’s part, in her reply affidavit, the respondent objected to some of the inadmissible evidence in the applicant’s affidavit. The court has given no weight to the hearsay or evidence that is otherwise inadmissible.

[49] There are other evidentiary issues related to some of the exhibits to the affidavits. Exhibits were annexed to affidavits to prove the content of a document, without more. There was no agreement beforehand by the parties regarding the trial documents or exhibits, as urged by the Court of Appeal in several decisions: Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at para. 53; Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 21-35. Exhibits annexed to an affidavit is not sworn evidence: see Katz v. Katz, 2014 ONCA 606, 50 R.F.L. (7th) 1; Sears v. Coristine, 2020 ONSC 7968.

VII. Witnesses

[50] The parties called the following witnesses.

Applicant witnesses

[51] In addition to himself, the applicant called the following witnesses:

• A.Y. (applicant’s mother)

• Dr. Kimberly Harris (s. 30 assessment)

• Dr. Shazeda Haroon (reunification therapist)

• Marlyn Harry (CAS)

• Vesela Kutlesa, Georgina Mangos, Simona Ilievaa (supervisors from Brayden Supervising Services)

• Shameem Atcha (supervisor from Renew Supervising Services)

• Shawn Wygant (litigation expert)

• Matthew Krofchick (litigation expert)

Respondent’s witnesses

[52] The respondent called the following witnesses, in addition to herself:

• Liz Mestanza (friend)

• Natalie Nady (friend)

• Daniel Krause (friend)

• Dr. Diana Avalle (litigation expert)

• Dr. Jessica Blakeley (participant expert)

VIII. Evidence of the Witnesses

Applicant’s witnesses

i. G.Y. - applicant

[53] The applicant is self-employed and owns 100 percent of a service-based company that investigates and assesses heating and cooling issues in office spaces. He says that the respondent may still own her cosmetic company, which sells products online.

[54] The applicant was a credible witness. His evidence, for the most part, was internally consistent. He answered questions directly. He repeatedly made admissions that were not helpful to him. Even though he was cross-examined by the respondent herself, he agreed with her on many questions, and at times, offered possible explanations when he did not know the answer. He admitted, without hesitation, that he did not disclose the mining units and cryptocurrency to the accountant (jointly retained by the parties as a litigation expert).

[55] The applicant says that after he was charged, he moved in with his parents. On cross-examination, he testified that he had spoken to the respondent about taking M. out more, getting some sun, going to school, playing with the neighbourhood kids, and she refused all suggestions.

[56] He was asked by the police whether there had been domestic violence, and he told them the respondent assaulted him. On cross-examination, he testified that the charges related to incidents which occurred years before M. was born, and some from when she was a baby.

[57] He says it was the respondent who was abusive, and not him. He testified that the respondent was often jealous and possessive from the beginning of their relationship. She would accuse him of cheating, go through his phone book, and take his wallet and keys when he tried to escape. She would not allow him to spend time with his female friends. They had arguments because of her jealousy. He would lock himself in the bathroom to get away at times, and sometimes, she would throw herself against the door.

[58] After M. was born, she became the focus of much of the respondent’s controlling behavior.

[59] It was only during the pandemic when the applicant was working from home, that he noticed concerning behaviour by the respondent towards M. He tried to address M.’s social isolation and sleep schedule and suggested that she be placed in school. The respondent would not co-operate. He took some videos to document the sleep and schedule and advised the respondent that he intended to call CAS. He was arrested before he could call CAS.

[60] Since December 2021, he has seen his daughter only once, despite having obtained nine court orders for supervised parenting, directing the respondent to comply with the court’s parenting time orders and various terms of the court’s orders to facilitate supervised parenting with him. There have been 51 failed supervised visits out of the 52 scheduled visits, between August 2022 and August 2023, and no visits have been scheduled since October 2023, as the respondent refuses to permit M.’s therapist, Ms. Blakeley, to speak with Brayden Supervision Centre.

[61] The applicant says that the respondent has made false allegations to both the police and CAS. Since December 28, 2021, the respondent has contacted the police numerous times, claiming to have recalled additional incidents of abuse. The applicant testified that the respondent has falsely reported well over 50 incidents, which the police have investigated. The initial ten charges were unconditionally withdrawn. In February 2023, the respondent made an additional false allegation, and he was charged. The case is still pending.

[62] The applicant testified that M. was able to connect with him quickly, even after almost two years of no contact. They had had a close and loving relationship. He was never physically abusive to the respondent. He has never deprived them of using the bathroom or using racial slurs in her presence. He admits to having a crossbow, which they purchased together around the time of the George Floyd incident.

[63] The respondent was possessive and jealous, and the applicant testified that he became isolated from long-time friends, and eventually his family. She would not allow him to go to church. He did not share with his friends how bad things were. He recalls one incident when she struck him in the face and his glasses went flying. He was terminated from a teaching position because she insisted on being present for each class to prevent female students from hitting on him. He was not allowed to use social media, except for LinkedIn. In 2020, she accused him of cheating on her and using Facebook, and he was pressured into taking a polygraph test to prove he had been faithful.

[64] The applicant testified that the respondent sent a 5-page email in May 2018 to his parents before they could babysit M. He testified that the respondent was still breastfeeding M. up until the time they separated. M. was four and a half at the time. He testified that she was frequently late for work, came home during the lunch break to breastfeed M., and was on the phone with him during her commute to and from work so that she could talk to M. She was fired from her job in mid-2018, and she then accused a colleague of pushing her when she was pregnant. The employer eventually settled. He testified that she insisted that he and his parents speak to M. in English and that his parents use M’s English name. He testified that she has accused his mother of hitting M. and this false allegation, caused his parents who were prepared to supervise visits, not wanting to get involved.

[65] In mid-2021, the applicant began having concerns that the respondent was isolating M. and was only allowing M. to go to sleep at around 7am, and then waking her up to have “breakfast” at 7pm. He testified that M. had not seen the sun in more than six months by the time he was removed from the matrimonial home. After he was arrested, he called CAS the following day and reported his concern regarding M.’s sleeping habits.

[66] He testified that he started taking videos of M’s sleep schedule so he could confront the respondent and told her that he would have to report this to CAS if she did not support him in correcting M’s sleep schedule and lack of socialization. The respondent was very upset.

[67] The applicant testified that he thought about the therapeutic goodbye and weighed that option with the way M. is being exposed to very adult subject matters and things of that nature that are not true. He weighed the potential short-term negative impact to M. and concluded that it would be better for her to be in his “custody” for the interim and “through the Family Bridges Program.” He stated that “hopefully that would help M[xx], myself and yourself, Ms. Y{xx} to form a more healthy way of raising our daughter M. [xx}.”

ii. A.Y. - applicant’s mother

[68] The applicant’s mother also testified at the trial. She and her husband were born in Hong Kong, and she immigrated to Canada at the beginning at the beginning of the 1980s. Her immediate family lives in Toronto.

[69] She does not believe her son abused M. In general, A.Y. was a credible witness overall, but showed some bias towards her son.

[70] She is a retired nurse. She worked at a hospital in Toronto for approximately 30 years. She had also done some nursing in Hong Kong. Her husband is a chef. Since retiring, she volunteers at the church, and has been a Sunday school teacher. Her husband is the head of the children department, and they have served together with a scout club for children of all grades. She and her husband have been involved in missionary work.

[71] A.Y. babysat M. after the respondent returned to work after her maternity leave. The respondent had many rules, only some of which A.Y. could remember. She agreed that some of the respondent’s rules were the following: do not strip her down naked, bathe her, shower her, or wash her face; do not take M. into the bathroom or bedroom with her; no TV or cell phone; do not put the baby on grandpa’s lap, do not speak Chinese; do not join her for dinner after babysitting.

[72] She testified that if M. were to live with them, she would have her own room and bed. She says the long-term plan is to purchase a bigger house. She says she will look after M.’s hygiene, and the applicant already forwarded a detailed plan.

[73] On cross-examination, she acknowledged signing the Meridian Credit Union Gift Letter for a $100,000 loan from her to the applicant. She admitted that the document stated the following:

This is an outright gift with no repayment expected or implied, either in the form of cash or by future services by the recipient.

No part of the gift is being provided by any Third Party having any interest (direct or indirect) in the sale of the subject property.

iii. Dr. Kimberly Harris, PhD – s. 30 assessor

[74] Dr. Kimberly Harris provided a Parenting Plan Evaluation report dated August 18, 2023, pursuant to s. 30 of the Children’s Law Reform Act, under the auspices of NavOn (Navigating Onward). Dr. Harris completed this s. 30 assessment of the parties and M. pursuant to the order of Faieta J. dated June 8, 2022.

[75] Dr. Harris interviewed or consulted the parties, family, friends, and various professionals involved with the family, as well as TPS, CAS, the supervising services, and records.

[76] Dr. Harris was impartial and dispassionate in her testimony, as she strove to clarify questions for each party, once they were self-represented, and was even-handed in her testimony. It was this dispassionate approach which prompted the court to ask her to return, on the consent of the parties, after she had competed her evidence. The court sought answers to two questions, given the two options in her report and following the evidence of Ms. Haroon, the reunification therapist. The parties were afforded a further opportunity to cross-examine her and did do so.

[77] Dr. Harris’ evidence is dealt with throughout the judgment.

[78] Dr. Harris is a registered forensic and clinical psychologist in the province of Ontario and is the Executive Director of NavOn. She is also an adjunct professor in the Faculty of Education and Faculty of Social Science at Western University. At the time of the trial, she was the co-president of the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC). She teaches, trains, and develops programs in family assessment and family therapy, including voice of the child reports and child inclusive mediation. She has worked with families and children since the start of her career and has increasingly focused on families going thorough separation and divorce. She also completes parenting assessments and parenting capacity assessments.

[79] The focus of Dr. Harris’ work is the needs of the children and the ability of parents to meet those needs, with a secondary component around consultation/intervention to support families experiencing a gamut of difficult family situations. She has training and experience in family violence. In the past few years, she has sat on the National Domestic Violence Community of Practice.

[80] The court accepted Dr. Harris as an expert to provide opinion evidence to the court in parenting, decision making, and family violence.

[81] Dr. Harris testified that she set out the two stark contrasts available for this family, and the pros and cons of each option, that is having to choose one parent over the other. She testified that the respondent’s “lack of co-operation with court ordered parenting time did contribute to where we find ourselves at the end of the assessment.” She said the two options are mutually exclusive, but made no recommendations for the decision-making and parenting time of M.

[82] As Dr. Harris used language utilized before the amendments, the term she used will be employed, where appropriate.

[83] The first option is a “custody reversal” (that is a change in the primary residence of M. and decision-making responsibility). The second option is a “therapeutic goodbye.” Dr. Harris does not believe that there is any middle ground for this family.

[84] Dr. Harris was of the view that M. is likely not a victim of sexual abuse. She noted in her report that respondent “has made repeated allegations of child abuse, particularly sexual abuse, that have not been verified,” and that “the reports are inconsistent and at times her accounts impressed as changing to align with given information.” Dr. Harris testified that she views this as a severe case of parent-child contact problems which included:

a controlling/enmeshed parent, repeated allegations and investigations, aggressive acting out by the child, child guarded and hyper-vigilant to perceived threat of rejected parent, no or very infrequent contact between child and rejected parent for significant length of time (more than 12 months), and child and favored parent cannot be reassured.

[85] She noted in her report that there is “significant information pointing toward highly restrictive gatekeeping by Ms. Y[xx] which is itself harmful to children,” and maintained this view at trial. Dr. Harris indicated that “gatekeeping by allegation is a parent alienating behaviour.”

[86] Dr. Harris said the respondent set out criteria that she wanted in place, then preceded to not co-operate with parenting time. She thought the respondent was not participating in such a way that would allow M. any time with the applicant father. She says showing up physically is not the same thing as supporting the child emotionally to engage in a particular activity, event or parenting time. She set out ways in which the respondent was not supporting M. emotionally, or even physically, because she was little.

[87] Dr. Harris testified that M. has made comments inconsistent with her age and is likely repeating what she has heard. This matches with CAS concerns regarding memory contamination. Dr. Harris also identified that the respondent shares information with M. which she then takes on as her truth. The respondent has repeatedly asked M. if she wants to see her father, when at this point in M.’s young age, it was not a choice for her. Dr. Harris was of the view that putting the option forward was problematic for a number of reasons: it is not healthy for her to be put into situations where they are not co-operating, and it articulates that it is not safe.

[88] Dr. Harris was of the view that M. was socially isolated. When she interviewed her, M. could not name any friends. Dr. Harris thought homeschooling contributed to the social isolation.

iv. Shawn Wygant – litigation expert

[89] Mr. Wygant was retained by the applicant as a litigation expert. His role was limited to analyzing the data from Dr. Harris’ report.

[90] Mr. Wygant has a bachelor’s degree in psychology, a Master degree in forensic psychology and a Master degree in Clinical Psychology, and was in his dissertation phase of his PHD Clinical Psychology program at the time of the trial. He has a limited license to practice psychology. Since 2013, he has been in practice as a forensic evaluator, and has worked on over 450 cases involving domestic relations involving child custody and access, and criminal cases assessing child abuse. He has training and experience assessing child abuse in a scientific way.

[91] For the reasons set out below under the heading of “Critique Reports” within the Analysis section, the court did not find the report of Mr. Wygant helpful in determining the issue of parenting and decision making for M.

[92] Additionally, during his testimony, Mr. Wygant’s referred to articles found in Dr. Harris’ report, which were not put to her. It is not clear the nature of the opinion sought, the documents reviewed, what documents were reviewed for the purpose of his report, what evidence was reviewed or considered, and whether the authorities referred to in his report are authoritative. The report also appears to go beyond the scope of what Mr. Wygant was retained to do and provides opinions on a broad range of areas. It is not apparent to the court that Mr. Wygant, who admittedly appeared to be knowledgeable about the various subject areas he addressed, had the requisite qualification to provide opinions on these areas.

[93] Mr. Wygant testified that an anxious parent can project their fear. In his report, he noted that the research shows that anxious parents often exhibit a cognitive bias toward threat and are more likely to engage in overprotective behavior of their child due to a maladaptive perception of danger and increased sensitivity to the child’s distress in response to the mother’s anxiousness. He testified that while there is no evidence that the respondent is anxious, the detailed email to the grandparents suggests otherwise.

[94] He says there is evidence to support Dr. Harris’ hypothesis that the respondent mother is a hypervigilant mother. He indicates that the most accurate hypothesis is that M. “is not a victim of sexual abuse, but a sincere, hypervigilant parent inaccurately believes her child is the victim of sexual abuse.” It could also be accurate that the mother in this case is using her allegations of sexual abuse to manipulate the court system during the parties’ custody litigation. He said both hypotheses can be true since “many mothers” who present as a hypervigilant and overprotective parent will misreport sexual abuse allegations based on a misinterpretation of conversations they had with their child.

[95] According to Mr. Wygant, it is common to have source misallocation in children in response to a question. When a child is merely asked a question once like, “Did daddy touch your pee pee?,” the child may go on to repeat “Daddy touch pee pee,” because the source and the attribution has been incorporated into the child’s mind as a product of suggestion, not a product of their personal knowledge. He suggested that because of this, a child may falsely report experiencing something that they did not experience.

[96] He said that there is also evidence to support the hypothesis that the respondent mother is using the allegation of sexual abuse to manipulate the court system during the litigation. He pointed to the police file, the emails from the respondent to the police, the way the respondent was amplifying and adding facts, the way she was asking about updates to provide to her family law lawyer, as well as the repeated focus on the various agencies’ duty to report, a theme she repeatedly came back to with professionals (who also testified). He said that both hypotheses can be true. He noted that the latter can even be done without malevolence by an anxious parent, based on an innocent misinterpretation of what a child has said.

[97] Mr. Wygant testified that there is no way to tell if there is impact from domestic violence on a child without understanding what the domestic violence was and the child’s reactions to it. He said that sometimes children are exposed to domestic violence and there are very few or no negative repercussions on their developmental trajectory, while others who are exposed to very little may have extreme negative reactions.

[98] On cross-examination, he confirmed that being exposed to domestic violence can have an impact on a child. He was asked about a child witnessing strangulation, which he says was a corrupting message for a child and a form of child abuse. The respondent put to him where “parents who try to choke the life out of you.” which he says was not only physical abuse but also child abuse. He also noted the presence of guns, knives, and crossbow in the home, the use of a crossbow, and the insinuation of a verbal threat may constitute abuse.

v. Shazeeda Haroon - jointly retained family reunification therapist

[99] Ms. Haroon was jointly retained by the parties, by order of Steele J., as a court ordered reunification therapist. She provided a report dated September 15, 2023, under the auspices of RESTORE Counselling & Family Services. The purpose of the report was to provide a clinical intake consultation to assess the severity of the contact difficulties, as well as the ability of the family to follow through on any requirements for a successful reunification.

[100] Ms. Haroon is a registered social worker and psychotherapist with a Bachelor of Arts, Bachelor of Social Work, and Master of Social Work. She is registered with the Ontario College of Social Workers and Social Service Workers. She has worked in the fields of education, child welfare, and in private practice providing individual and family therapy. She provides various services to families experiencing high conflict separation and divorce services including reunification therapy. Ms. Haroon is a panel member of the Office of the Children’s Lawyer and provides reports under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 30 assessments under the Children’s Law Reform Act. As part of her family mediation certificate, she is trained in domestic violence.

[101] She was qualified as an expert in the field of reunification therapy at the hearing.

[102] She agreed with Dr. Harris’ use of the term “severe gate keeping.” She does not believe she and Dr. Harris had any significant differences in their findings. At the time of the report, there were over 30 failed attempts at supervised visits, which she has never seen before. She said it was unusual. She said she has never seen a situation where parenting time in a supervised setting has not happened.

[103] Ms. Haroon interviewed the parties and several other collateral sources, including M.’s therapist, and reviewed extensive documents.

[104] She testified that the respondent raised safety concerns, but even when the respondent was provided with tools to address those concerns, she was reluctant to use them. Ms. Haroon stated that both parents must agree that reunification therapy was in M.’s best interest. She identified several barriers to reunification. She pointed out that that the supervising notes indicated that there were concerns by the supervised access centres that the respondent had difficulty following their instructions.

[105] Ms. Haroon testified that the applicant thought M. having a relationship with both parents was in her best interest, while the respondent was concerned that M.’s engaging in reunification could cause harm to her. The respondent was also of the view that the focus of any therapy should be on M.’s healing from her experience of abuse. Ms. Haroon noted that the respondent “cannot commit to the provisions of the reunification therapy,” and “continues to have difficulty in following through on what is required of her to address the parent-child contact issues.”

[106] Ms. Haroon indicated in her report:

The concern in this matter is that without a significant change to the current circumstances, it is unlikely that Mr. Y[xx] and M[xx] will have a relationship, now or in the future. By accepting the current circumstances, M[xx] will have lost the connection to her father, her grandparents, and extended family members, along with the connection to her culture and community.

[107] Ms. Haroon concluded that reunification therapy was contraindicated for the following reasons:

i. The respondent did not agree that it was in M’s interest to have a relationship with the applicant.

ii. There were opportunities to mitigate the respondent’s concerns using third parties, yet parenting time was not occurring.

iii. The respondent’s approach to therapy is based on M. willingness and need to heal and reunification therapy is more directive in its approach; the expectation is that parenting time occurs.

iv. M. was highly resistant to parenting time with the applicant and had a fixed view of him.

v. Given the length of time of contact problem has existed was chronic and long-standing.

vi. Marlyn Harry - CAS

[108] Ms. Harry has been employed with the Children’s Aid Society for over two years. She obtained a Bachelor of Social Work and was completing her Master’s.

[109] Ms. Harry’s evidence was based primarily on the CAS file, which was admitted as a business record, subject to any hearsay information in the records. Ms. Harry did have a fair recollection of some of her involvement on the file. The file was transferred to her from her supervisor, Ms. Boodram.

[110] On December 29, 2021, the applicant father called CAS regarding concerns that M. was not seeing daylight. On December 30, 2021, CAS (Ms. Boodram) contacted the respondent to set up a safety assessment.

[111] Ms. Boodram spoke to M. alone on January 4, 2022. She did not disclose that she had any issues after speaking to her. The notes do not reveal that any of the other CAS workers had any issues speaking with M. CAS investigated into whether there was domestic violence.

[112] CAS concluded a verification process in April 2022, and concluded that the allegation of sexual abuse was not verified.

[113] The file was transferred to Ms. Harry in May 2022.

[114] The respondent raised concerns about the grandparents actively encouraging violence.

[115] CAS made a verification of domestic violence was made on February 15, 2022, less than a month after another worker indicated that it was required. The file was transferred to her from the previous worker, Ms. Boodram.

[116] On June 10, 2022, and June 16, 2022, Ms. Harry made phone calls to the respondent mother to schedule a home visit. She left two voice mail messages for the respondent mother about a visit but received no response. She reviewed the records which indicated that the respondent mother was not content that the CAS was not siding with her in the “custody” and “access” dispute before the court. On cross-examination, Ms. Harry was taken to a July 2022 entry, wherein she called the respondent and apologized for having the incorrect number, and advised her she had sent a letter, which the respondent indicated she had not received.

[117] During a private visit that she had with M., Ms. Harry asked M. if she had any worries, and M. answered that she would be taken away from her mom. She asked M. who will take her away from her mom, and she said “my dad.” Ms. Harry said she asked M. who told her that, and she said, “Mommy.” When she asked M., “Did mommy tell you that,” M. said, “Yes.” Ms. Harry testified that the respondent interrupted the conversation, and made it known afterwards that she was recording. Ms. Harry did not consent to being recorded.

[118] Based on what Ms. Harry observed, she thinks M. was being coached. M. kept looking over to the respondent. On cross-examination, she stated that she had not been paying attention to where the respondent went in the home. Ms. Harry indicated that a child looking for eye contact is simply looking for reassurance, but she maintained this had been a private meeting, and M. should not even have been able to see the respondent. She indicated that it had been made clear to the respondent that it was a private meeting between her and M. On cross-examination, Ms. Harry was shown a note made in December 2022, wherein the respondent asked whether she thought she was coaching, and she responded that she could not verify whether she was coaching or not.

[119] Ms. Harry testified that CAS was worried that if access did not occur, it would have a negative impact on M.

[120] Ms. Harry acknowledged that she told Dr. Harris that that although CAS could not say whether the abuse did or did not happen, they did notice some inconsistencies in the respondent’s report. The CYAC shared that the respondent indicated that she never witnessed anything between the applicant and M. when the CAS initially became involved. This has changed. Ms. Harry confirmed that she did state that witnessing the sexual abuse of your child is not something that you would likely forget. Ms. Harry also told Dr. Harris that the respondent impressed as only wanting the CAS involved when there were perceived benefits to her, resulting in a lack of responsibility by her at times. Ms. Harry also told Dr. Harris that for the most recent complaints, she called the respondent and left a couple of messages, with no responses. Ms. Harry then proceeded with an unannounced visit, and the respondent said she did not receive any messages. A visit was scheduled. She told Dr. Harris that M. was attached to her mom, but that it was interesting that she had no problem with the babysitter.

[121] Ms. Harry said she also told Dr. Harris that in the past, the respondent has demonstrated some controlling behaviour, such as wanting to review her notes. CAS observed that if the respondent wanted M. to do something, she would do it.

[122] Ms. Harry told Dr. Harris that there would likely be another allegation, since when CAS closes the file, it is in the respondent’s interest to have the file opened because then it appears that the applicant is under investigation. It allows her to control the narrative in a way.

[123] Ms. Harry testified that she told Dr. Harris that CAS recommended that the respondent seek support; she testified that the respondent indicated that she did not need support, but was focused on M., indicated that when M. is healed there would be positive impacts to her as well.

[124] On cross-examination, Ms. Harry indicated that CAS identified M. as being at risk of maltreatment, which is a risk of mental/emotional harm. There was a concern about domestic violence. Ms. Harry testified that CAS concluded during their visit that M. was happy, healthy, and attached to her mother. There were numerous questions put to Ms. Harry during her cross-examination which would require opinion evidence and were otherwise not admissible.

vii. Vesela Kutlesa - Brayden supervisor

[125] Ms. Kutlesa was one of the parenting time supervisors with Brayden Supervision Services for the applicant's parenting time. Brayden is not generally given a history about the case. Brayden’s notes were admitted as business records, subject to the same qualification as those from CAS with respect to hearsay information. Ms. Kutlesa testified that Brayden is a neutral third party.

[126] Ms. Kutlesa has been a supervisor with Brayden since 2017. She has performed both the role of parenting time supervisor in a Supervised Parenting Time capacity and the role of parenting time supervisor in a Supportive Parenting Time capacity. She has a degree in sociology from York University and a Diploma in Social Service work from Humber College.

[127] Between 2006 to 2011, she worked with at the Griffin Centre with children at a mental health agency and has been with Brayden since 2017. She worked with children ranging in age from 7 to 21. Some of the children at the Griffin Centre had been exposed to domestic violence, trauma, neglect, and abuse, and some had CAS involvement. She has no formal training in domestic violence. She has taken some courses in domestic violence, and her work was done through the framework of “trauma informed care.”

[128] Ms. Kutlesa testified that she reviewed her notes of her parenting visits.

[129] On cross-examination, the respondent repeatedly put questions to Ms. Kutlesa to elicit opinion evidence, without any report or any indication that she was qualified to offer the opinion. The questions related to the following: the behaviour of children experiencing domestic violence; whether children who have experienced violence and trauma develop a fear of separation from their primary caregiver; whether children who experience abuse are less interested in playing with others and playing; whether “children in that population” may be easily startled; and whether “that population avoids activities, places or people associated with the trauma.”

[130] Ms. Kutlesa repeatedly stated that she was there to ensure M.’s safety and to support her, which were her main goals. She was there if M. felt scared or unsafe. On cross-examination, she testified that the supervisor may facilitate the visit but does not force a child to go in.

[131] On cross-examination, Ms. Kutlesa acknowledged that children in the age range of 3 to 5 who have experienced domestic violence or trauma cling to their mother or attachment figure as a common trauma symptom. She acknowledged observing M. cling to the respondent during the visits that she supervised, that M. demonstrated avoidant behaviour, and she agreed that children may be become upset if faced with something or a situation that reminded them of the violence.

[132] The court gives little weight to much of Ms. Kutlesa’s opinion evidence. She provided no report. It is not clear from her qualifications that she could provide opinion on domestic violence, coercive control, and whether the behaviour exhibited by M. was “trauma symptom avoidant behaviour,” among other opinions sought from her. The respondent also attempted to put articles and statistics in articles to Ms. Kutlesa, including an article published in The Journal of Interpersonal Violence. Ms. Kutlesa was not aware of the article and had no off-hand knowledge of the Journal.

[133] Ms. Kutlesa testified that at the initial supervised parenting time visit, M. repeatedly stated: “I don’t feel safe with my dad - he hurt me once and I don’t feel safe.” She testified that M. had a normal affect when she made the statement, and she did not appear happy, sad, or upset. Ms. Kutlesa likened M.’s affect to her saying “Hi, how are you.” Ms. Kutlesa’s observation was that M. did not appear to be afraid at any point. Ms. Kutlesa’s agreed that M. would say the same phrase repeatedly, throughout different visits. On cross-examination, Ms. Kutlesa agreed that M. told her that her father hurt her, but she did not expand. Ms. Kutlesa agreed that domestic violence is traumatic to a young child.

[134] Ms. Kutlesa testified readily that the applicant father was “very cooperative, very pleasant, and very compliant with everything that was asked.” With respect to the respondent mother, after pausing, Ms. Kutlesa stated: “She – I wouldn’t say that she was uncooperative, but – how should I put it – maybe a little bit more directive, may be, needed to be towards M[xxx].”

[135] Ms. Kutlesa testified that different strategies were attempted to facilitate the supervised visits with the applicant father. At one visit, she suggested to the respondent that she take M. by the hand and just bring her in, but she testified that the respondent mother “says that she was trying but that M[xxx] does not like that type of touch so it is very hard to do so.” She testified that after the visit ended, she watched the respondent mother take M.’s hand and they walked back to the car, and they drove away. When Ms. Kutlesa was asked if M. had the response that the respondent mother had described when the respondent mother took her hand, Ms. Kutlessa responded: “No, she just took her hand like a child would take a mother’s hand.”

[136] Ms. Kutlesa testified that does not believe she had ever seen a case where a parent could not guide a child of M.’s age into the Centre.

[137] There are other instances in the Brayden notes which mention the respondent mother and M. holding hands, but with no mention of the response that the respondent mother says M. mentions. Some examples are as follows:

• During the parenting time visit on January 21, 2023 with Ms. Mangos and Dr. Harris, the Brayden notes indicate: “Dr Harris asked M[xxx] if Mother could leave now, and M[xxx] returned to the couch next to Mother and said no. Mother and M[xxx] held hands and M[xxx] continued to tell Mother to stay.”

• During the June 9, 2023 parenting visit with Ms. Mangos, the notes indicate: “2:15pm – This Supervisor went to the side door to meet Mother and M[xxx]. They arrived a few minutes later with M[xxx] holding Mother’s hand and skipping.”

• During the June 23 2023 visit with Ms. Kutlesa, M. stated “I don’t feel safe with my dad- he hurt me once and I don’t feel safe.” The notes indicate:

Supervisor reiterated that she was here for her safety and would support M[xxx] and have fun with her. M[xxx] continued to state “NO” and began running around the front of the building. Mother looked to Supervisor and asked If they had any ideas. Supervisor suggested taking M[xxx] by the hand and walking her to reception. Mother did take M[xxx]’s hand and walked towards the reception and M[xxx] started jumping up and down and yelling “NO” – Mother let go of her hand and continued to ask her to come inside.

• On June 25 2023, the notes from Supervisor Natasha Jaffer indicate:

2:50pm: Supervisor observed Mother and M[xxx] to be lingering outside and no movement was made towards the front entrance. While Mother was periodically holding M[xxx]’s hand, there did not appear to be movement on the Mother’s part to direct her or guide her towards the front entrance. Mother and M[xxx] were walking along sidewalk in front of the Brayden centre back and forth. M[xxx] was observed to be skipping, jumping, hopping about outside. She had a smile on her face.

• During the June 30 2023 visit with Ms. Kutlesa, the notes indicate:

3:00pm - Supervisor reminded M[xxx] that no one else was present in the reception. M[xxx] said “no thank you” I do not want to. Supervisor then suggested to Mother that she take M[xxx] by the hand and just bring her in. Mother said she was trying but M[xxx] “does not like that type of touch so it is very hard to do so.”

3:15pm - Mother walked to the outer foyer area and stood at the doors. M[xxx] walked towards Mother and took her hand to pull her away. Mother advised her that she was going to go in. M[xxx] began to pull the doors and swing them open and closed making a banging sound. This occurred for about a minute and a half. Supervisor walked out and ask M[xxx] to please stop playing with the doors, as Mother had not redirected M[xxx] to stop.

viii. Georgina Mangos - Brayden service director/supervisor

[138] Ms. Mangos has been employed with Brayden since 2019. She is one of the Service Directors and carries out supervised visits. She had two visits with M. The first was the visit with Dr. Harris, and she also had a subsequent visit.

[139] Ms. Mangos was a child and youth work and has worked in the field of mental health for 25 years. She has worked with children who have experienced trauma and domestic violence. She agreed that domestic violence can result in trauma. She was the supervisor for the January 31, 2023, visit with Dr. Harris. On cross-examination, she agreed that the respondent mother complied with Brayden’s directions. She noted that the respondent “said the right words and encouraged her.”. She went on to add: “Yes, so there wasn’t anything that you didn’t do that you weren’t supposed to.” She agreed that the respondent attended every visit.

[140] Ms. Mangos was not presented as a witness to provide an opinion on coercive control, though she was asked several questions on this area. She did not know what the term meant, and the respondent explained the term to her.

[141] On cross-examination, Ms. Mangos indicated that as the service director, she was aware of the domestic violence history with the parties. She was aware that CAS had verified domestic violence. She was aware that CAS had verified that M. had been exposed to domestic violence. Ms. Mangos was asked several questions on domestic violence and child abuse. She was not called to testify to provide opinion evidence on domestic violence and the impact on children, and several questions elicited a response of: “I don’t know that she was having that experience,” or similar responses along those lines.

[142] Elsewhere in her testimony, Mr. Mangos indicated that the supervisors were not therapist, but they could contact a child’s therapist. In this case, she was asked whether she recalled speaking to M.’s therapist, Ms. Blakely, before allowing any more supervised visits. She testified that the request was sent to the respondent by email to speak to Ms. Blakely before any more supervised visits; the Brayden supervisors would follow the direction of the therapist. Ms. Mangos testified that Brayden works as a team, and their goal was to help M. to try to facilitate the visits. She testified that it would have been helpful to obtain the techniques and recommendations from the therapist and they would have followed those directions. The applicant provided his consent for Brayden to contact Ms. Blakely; the respondent did not.

[143] Ms. Mangos testified that clients agree to the visit details and usually comply with the agreement. She testified that the applicant father was very compliant and followed all the directions, “and even when we changed the plans throughout the weeks, we did not have any issues.” She indicated that one of those changes was asking the applicant father to park his car out of view, when the respondent mother indicated that it was “a trigger” for M. The respondent mother attended the visits on time, but Ms. Mangos testified that “we just had to have M. in for the visits to begin.” Ms. Mangos said the supervised visits never began, as they were unable to get M. in the building to start them.

[144] Ms. Mangos testified that one of the strategies suggested was for the respondent mother to piggyback M., because the “hand holding” did not work, and M. was “quite playful.” M. was receptive to the piggyback ride, and she was laughing. The respondent said no because M. was too heavy.

[145] All the supervised visits failed, save for the visit which occurred with Dr. Harris. Ms. Mangos said that when she took over, there were two visits a week from June until the end of August. She testified that she had never dealt with this many failed supervised visits before.

[146] Ms. Mangos described the visit with Dr. Harris on January 31, 2023, based on her notes. Ms. Mangos testified that she was present for the meeting, which started off with the applicant father being on video, and Dr. Harris and Ms. Mangos in a room with M. The respondent mother was sitting on the couch with M. They encouraged the respondent to leave the room. The applicant father had indicated during the video call that he had made cheesecake, which was M.’s favourite. Dr. Harris suggested that they try a slice and offered some to the respondent mother, who declined. At some point, M. wanted to make sure the respondent mother also had a piece of cake.

[147] Ms. Mangos testified her notes indicate that “Dr. Harris and M[xxx] then, they did bunny hops going up the hallway to the reception area to give you the cheesecake, and then they returned to the room….and you were on the video call the entire time eating. And it started to open up the conversations.” Ms. Mangos went on to testify:

Then Dr. Harry suggested that you join us in the room, and the video call ended when you came down to the room and sat on the floor. M[xxx] then joined you on the floor. You guys watched Paw Patrol and a conversation slowly began. First of all, with Dr. Harris repeating all the questions you asked about the show, and M[xxx] slowly began answering them and without Dr. Harris repeating them. And, then M[xxx] started to open up and ask or point out things that were occurring during the show to you. And, Dr. Harris left the room for a while, so it was just me in the room with M[xxx] and yourself. And she opened up more – started playing with some of the Paw Patrol stuffy toys that you had provided, and just continuing the conversation based around Paw Patrol... Seeing that it was a winter episode we were watching, she opened up even more; she gave you some information stating that she enjoyed skating and that she played soccer…

[148] On cross-examination, Ms. Mangos agreed that the respondent mother was a comforting source for M. at the visit; she was sitting on the couch with her. Ms. Mangos agreed that she told Dr. Harris that it was typical for M. to say that the applicant father hurt her and that it was typical for M. to say that the respondent hurt her feelings. Ms. Mangos’ evidence is that at no point during the video call on January 31, 2023, did M. repeat any of the statements that she had previously stated; specifically, M. did not say that she did not feel safe, that her dad hurt her, or that she did not want to see her dad, nor did she indicate that she was scared or distressed. Ms. Mangos testified that M. did not make any such statements when the meeting changed from video to in person with the applicant father, and that M. also did not make those statements when Dr. Harris left the room.

[149] Based on the notes, Ms. Mangos testified that she estimated that it probably took fifteen minutes for M. to warm to her father, by which time he and her were sitting on the floor together. Ms. Mangos says that at the end of the visit, M. allowed the applicant father to help her put on her jacket and her boots, and she also gave him a “high five,” which was unprompted by either her or Dr. Harris. Ms. Mangos testified that there was no change in M.’s persona, and she allowed the applicant father to do that. Ms. Mangos testified that M. did not appear to be scared or in distress.

[150] Ms. Mangos has a duty to report and did report to the CAS. Ms. Mangos contacted the CAS on a few occasions for a consult, when M. had reported that the applicant had scratched her inner thigh. The CAS indicated that they were not going to investigate further. Brayden was given the “go-ahead” for the next parenting time visit.

[151] Ms. Mangos described M. as an “active,” “very friendly,” and “pleasant little girl.” She noted that M. was “running around.” She stated that “she had an active imagination,” and during one of her visits, M. talked about “butterflies and things to do with nature.” Ms. Mangos testified that M. made it clear that she did not want to attend the visits.

[152] Ms. Mangos testified that she was the supervisor for the June 9, 2023, visit where she noted that M. was running around outside, doing laps, and dancing and moving around “like a normal child.” Ms. Mangos clarified that “normal child” meant M. had been engaged in the regular childhood activity of running and skipping.

[153] Ms. Mangos acknowledged telling Dr. Harris that they tried every conceivable strategy to facilitate the visits, and that the reason M. did not want to see the applicant was that she felt unsafe, and it did not matter which supervisor was there. Ms. Mangos told Harris that it was always the same routine: the supervisors asked a question or made a suggestion, and then M. stared at the respondent mother because she did not know how to answer or whether to comply with the suggestions. Ms. Mangos also told Dr. Harris that they noticed M. saying word-for-word what the respondent mother says.

[154] Ms. Mangos agreed that she provided the following information to Ms. Harris, which appears in her report:

• According to Ms. Mangos, it is fairly typical for M. to say that she is afraid of her father because he hurt her or hurt her feelings. However more recently, M. disclosed that her father scratched the inside of her legs. This was new information for Brayden so they had to make a mandatory report. Ms. Mangos reported that she has learned that the CAS closed the file yesterday. It was Ms. Mangos’ view that there was likely to be another allegation because that appears to be the pattern, the file is closed and then there is another allegation to investigate. Ms. Mangos reported that Ms. Yeung expressed that M is now remembering more things that happened. Ms. Mangos shared that they have noticed M saying, word for word the exact same things that her mom says. M often sounds robotic in these situations like the information has been drilled into her. If she knows that her father has provided bubbles or toys, she will not touch them. But if she thinks they belong to Brayden then she will play with them. She listed everything that he brings and says that she does not like it cookies, cheesecake, chocolate cake. For example, she ate and enjoyed the cheesecake her father made in the visit on January 31, 2023 visit but now she says she doesn’t like cheesecake.[Emphasis added]

ix. Simona Ilieva – Brayden supervisor

[155] Ms. Ilieva was the supervisor for certain visits which took place between June 2023 to August 2023. She has been at Brayden since 2019 and is a supervisor at the Centre. She is a registered psychotherapist and has training in counselling psychology. She does some work in private practice and is also a program manager for the Ministry of the Solicitor General.

[156] At the first visit, Ms. Ilieva atempted to speak with M. who was responding without looking at her; she testified that M. was looking at the respondent mother when she was speaking with her. Ms. Ilieva thought the respondent could be firmer. The respondent mother told her that M. had issues with physical touch. Ms. Ilieva testified that she was not able to hear if there was an exchange between M. and her mother as they were walking away, but M. held her mother’s hand, and it did not seem that she was pulling away.

[157] At a June 2023 visit, the respondent was outside the building with M., texting the supervisor to advise that “M[xxx] was scared because father had hurt her.” Ms. Ilieva testified that the respondent advised the supervisor that M. had stated that her “father had stopped her feelings, and had hurt her, and she feels scared of him.” When Ms. Ilieva went outside, M. kept repeating that “she felt scared, hurt and, grumpy, and that father hurts her physically and emotionally and did not allow her to feel her feelings, and hurt her feelings.” Ms. Ilieva testified that M. kept repeating these words.

[158] When asked if M. used “similar language” at the visits, Ms. Ilieva responded: “It was the exact same language, I think.” Ms. Ilieva could not recall M.’s facial expressions changing. She said: “She wasn’t crying, or looking down or anything, she just kept repeating those words.”

[159] At a visit in August 2023, the applicant father wrote a letter for M. to be read by the supervisor to her. Ms. Ilieva had confirmed with the Service Director that it was something the applicant father could share. The letter read:

Hi M. The last time I saw you, you were so big, and grew up so tall. I want you to know how very very proud I am of you, and I think it is amazing that you learned how to swim and that you play soccer. I hear you can do math and you can write full sentences. I cannot believe how smart you are. I hope you are making lots of friends and enjoying the summer. I love you unconditionally, that means no matter what.

Your dada

[160] Ms. Ilieva testified that she told M. she had a letter from the father to read to her. M. looked at the respondent and started to shake her head, saying “No,” and that she did not want to hear it. She showed the respondent the letter, and the respondent indicated that she did not want it read to M., as it would scare her to know that her father knows these things. Ms. Ilieva testified that the respondent was concerned how he knew M. was good and math and was writing full sentences.

[161] Ms. Ilieva suggested that she read part of the letter, just a few sentences in which the applicant father tells M. how proud he is of her, and how much he loves her, and the respondent said no to the suggestion. The respondent refused to have the letter read to M., even after the suggestion that the letter be modified.

[162] Ms. Ilieva testified that around 1:30, when she told M. it was time to go home, her eyes opened wide, and she said: “But I have’[sic] told you about my feelings yet.” Ms. Ilieva asked M., “What about your feelings?” M. responded: “I have to say that daddy hurt me, and he hurt my feelings.”

[163] Ms. Ilieva testified that in the 2000 visits that she has completed, she has never had this many failed visits before.

[164] She testified that as a supervisor, they do not receive background information, but are notified about any restrictions about contact between individuals. On cross-examination, the respondent attempted to obtain Ms. Ilieva’s opinion on the effects of domestic violence and trauma. Ms. Illieva testified that it was not her role at Brayden to provide any professional opinion. She had some knowledge of domestic violence and trauma, and no specific knowledge with respect to children. She was also asked whether she had knowledge about anxiety and coercive control.

[165] The respondent also sought to put Ms. Ilieva questions about an article is authored by Alytia Levendosky and others, entitled “Trauma Symptoms in Pre-School Aged Symptoms exposed to Domestic Violence.” Ms. Ilieva testified that she was not aware of the authors or the article. Again, like the other supervisors, she had not prepared any report. Any opinion she could offer the court as to the causal connection between M.’s responses and trauma would require a report, and a determination that she was qualified to provide that opinion. None of those factors existed here. Ms. Ilieva herself testified that she was able to indicate what she observed but was not able to provide an opinion as to whether M.’s behaviour (not wanting to come inside the building) was “avoidant behaviour.”

[166] On cross-examination, Ms. Ilieva agreed that M. told her that she did not want to go inside, and that she did not want to see her father. She indicated that M. has stated that she was fearful of seeing her father. She indicated that she could not provide an opinion on M.s’ response but agreed in a general sense that M.’s responses could be a response to experience of domestic violence. Ms. Ilieva agreed that expression of fear could be a response to domestic violence. She agreed that being hurt physically and emotionally could be considered abuse. She agreed that the respondent was a source of comfort to M.

x. Shameem Atcha - Renew supervisor

[167] Ms. Atcha has been a parenting supervising coordinator with Renew since 2021. She was trained in England and has an Early Childhood Education Certificate. She has specialized in children with special needs, up to the age of twelve years old. She had been a supervisor at a daycare for many years.

[168] She completed approximately six supervising visits with M. None of them were successful.

[169] The first visit was on August 19, 2022. The visit started at 1:00pm and the respondent arrived at 1:57pm and parked her car. The respondent arrived late for the second visit. At the third visit, M. was on the respondent’s lap and was smiling and whispering to her mom. She wanted to go on the rides with her mom. Ms. Atcha testified that the respondent did not struggle to pick up M., because M. was “generally on her lap a lot.”

[170] Ms. Atcha testified that at the third visit, the respondent advised that M. cried before the visit and was upset. Ms. Atcha assured the respondent that M. seemed happy now and seemed interested in the rides. She testified that the respondent then looked at M. and said, “How do you feel? Why do not want to see your dad?” Ms. Atcha testified that M. then looked at her mother and started to whisper in her mother’s ear. The respondent told M. to tell the supervisor why she did not want to see her dad. M. said to Ms. Atcha, “he hurts me.” Ms. Atcha testified that after she assured M. that she is safe, the respondent apparently took deep breath and rolled her eyes. The respondent then asked M. if she wanted to sit on her lap, tried to get her on a chair to help with the transition, and then M. sat on the respondent’s lap. Ms. Atcha observed that they talked to each other, but that she could not hear what they were saying.

[171] At the August 29th visit, the respondent arrived almost thirty minutes late. The respondent ignored Ms. Atcha’s directions on how to make the transition easier. The respondent expressed concern about what was in Ms. Atcha’s documentation and challenged the Ms. Atcha about her notes and the recording of the time. Despite being late, the respondent remained at the session and had M. on her lap, although directed to allow M. to sit on a chair. The respondent got angry after she requested a receipt from the coffee shop to check the time. The notes indicate:

1:47 pm

The supervisor asks the cashier at Tim Hortons for a receipt for a sour cream glazed donut purchased around 1:30 pm. The cashier prints out the receipt and hands it over. The supervisor was not aware that C[xxx] had returned and stood behind her. C[xxx] declares, “That’s my receipt!” She seems angry as she raises her voice. She attempts to snatch the receipt from the supervisor’s hand. C[xxx], “You told them that you bought a donut, that’s a legal document, and it belongs to me!”

The supervisor responds, “I asked them for the receipt for a sour cream glazed donut that was purchased approximately at 1:30 pm.” C[xxx] appears to be very angry and stands close to the supervisor. The supervisor steps back and tries to calm her down. The supervisor explains, “You pointed out several times that you had concerns and was worried that I was documenting the wrong time. I just wanted to make sure that I had not mistaken the time. The supervisor returns to the same table where she had left her bag, and C[xxx] follows.

She shouts to the supervisor, “That’s my receipt!” The supervisor assures her she just wants to check the time so there is no misunderstanding regarding the time documentation. The supervisor reminds her that she can get another copy or take the receipt after the supervisor checks the time.

The supervisor sits at the table to look at the receipt. C[xxx] towers over the supervisor in very close proximity to look at the receipt. The supervisor feels intimidated, stands and steps back away from her. The supervisor does not have the opportunity to look at the receipt.

M lets go of her mom’s hand, steps away and looks at the floor with her shoulders slouched. M[xxx] glances up to look at C[xxx] briefly and then stares back at the floor. The supervisor feels that the situation is volatile as C[xxx] paces and continues to yell at the supervisor.

…The supervisor walks towards the exit…The supervisor did not feel comfortable to be near C[xxx] to continue the confrontation in the presence of M[xxx]. The supervisor drives away from the entrance and parks at another location in the mall. She does not want C. to follow her.

[172] Ms. Atcha said it generally takes two visits for a child to warm up, with gradual increments of time. She said the first meeting is always difficult for the child and the parent. She agreed it would be unusual for a child to warm up in 15 minutes to a parent that they have not seen in over a year and a half.

xi. Matthew Krofchick

[173] By order dated October 23, 2023, Czutrin J. directed that the parties retain a certified business valuator to complete a business valuation for the applicant’s business and determine the applicant’s income.

[174] The parties jointly retained Mr. Krofchick, who is a certified management accountant, is also now a CPA. Mr. Krofchick prepared a Fair Market Value report of the company and an income determination report. He has a certification from the Charters Business Evaluators, a certification in management consultancy and has a designation in financial forensics from the American Institute of Accountants. Mr. Krofchick was accepted by the court as a business evaluation and income evaluation expert.

[175] Mr. Krofchick testified that the value of the assets of the company is approximately $382,000, but the biggest amount is a shareholder loan of $185,000 that the applicant owes the company. In the result, subtracting the loan, the assets are about $200,000, and his liabilities are approximately $258,000. Mr. Krofchick valued the company at $123,000.

[176] Mr. Krofchick testified that the applicant’s income for 2019, 2020, 2021, 2022, and 2023, was $138,756, $131,081, $52, 325, $74,613 and $40,000, respectively. The only correction he had to his report was the correction of a typo as to one of the years.

[177] Mr. Krofchick provided alternative scenarios for the applicant income, were the court to decide that respondent did not receive $16,000 in Research and Development funds each year. While the court need not determine the issue for the purpose of determining the quantum of support, Mr. Krofchick testified that there was no change in the applicant’s income for 2021 and 2023. Under the alternative scenario, the applicant’s income would decrease. There is some evidence before the court to infer that the respondent received an income from the applicant’s company based on her own tax documents filed with Canada Revenue Agency, though she maintains that she was not paid for her services.

[178] On cross-examination, Mr. Krofchick was asked questions, which were based on hypotheticals not proven at trial. For example, he was asked about the fact that the applicant had “substantial income from cryptocurrency.” Mr. Krofchick testified that cryptocurrency is a stock, which fluctuates in value, and only when it is sold does it generate income. He was not told by the applicant that he had cryptocurrency.

Respondent’s witnesses

i. C.Y. - respondent

[179] The respondent testified that her “relationship was plagued with psychological, emotional, physical, and economic abuse and confinement.” She said there were also “multiple psychological, physical, and sexual abuses” of M. She deposed: “like M., I am a survivor of domestic violence perpetrated by [the respondent].” The respondent indicated that “[the applicant’s] violence has been chronic; it has been insidious; and, it has been ongoing for many years.” The respondent testified that the applicant removed the batteries from her car, “controlled food,” “stopped electricity to the house,” and prevented M. from getting baths.

[180] The respondent said that the applicant was arrested for domestic violence and charged with criminal assaults related to a strangulation and physical assault while M. was present. She said that her friend, Mr. Zagala, contacted the police on December 28, 2021. She said she had a discussion with Mr. Zagala, “and it was agreed that the police were required for the situation. It was very dangerous, and it was agreed that the police needed to be called.” There is currently a no-contact order in place, and an order that the applicant not come within five hundred metres. The respondent said that there is still an active charge against the applicant and there is a credible witness corroborating the events.

[181] The respondent said the applicant’s violence towards M. started even before she was born. She described that in 2017, when she was eight months pregnant, in a fit of anger, the applicant threw a series of “solid wood drawers” from a wood dresser towards her abdomen, causing her to hide in a closet. She testified that his actions also included weapons threats, including with crossbows that he purchased which were kept in an open area, and fired in the apartment. In her affidavit, the respondent deposed that there were two strangulations between 2006 and 2010. At trial, the respondent said that the applicant strangled her on multiple occasions. She testified that he had threatened to kill them if she wanted to leave the relationship. She deposed that the applicant separated her from her friends and her family.

[182] The respondent testified that neither she nor M. were permitted to sit or stand without the applicant’s permission, and if they did, “he would hurl violence.” The isolation occurred over time, to the point where there were very few people that she could contact. At trial, the respondent testified that the applicant’s violence “escalated around December 2021,” and that it “escalated towards M. at a frightening and rapid frequency.”

[183] She testified that the applicant “chokes M[xxx], and I witnessed him do it. I saw him wrap his arms across her neck, and squeeze, until she was red in the face, and her eyebrows furrowed, and gasping for air.” She said it was “life threatening and terrifying.” She said she witnessed the applicant “shoving M[xxx]” and has seen him denying her a bath “for three consecutive days.” At the trial, she testified that the applicant used the “n” word to refer to his daughter.

[184] She testified that the night after the applicant was arrested was “the first night in years” that M. was not woken up to violence, including having her blanket ripped off or furniture being thrown around the house.

[185] She testified that she has been told that there was spyware on her computer, and she suspects that it was the applicant who placed it there. She and M. are both in therapy. M. has nightmares and wakes up screaming. M. disclosed that the applicant sexually abused her and used his finger and “stopped her from feeling her feelings.”

[186] The respondent says that the grandparents, the applicant’s parents, are strangers to M. and threatened corporeal punishment. The respondent testified that she witnessed the grandmother hitting M. when she was two years old.

[187] On cross-examination, the respondent admitted that she told the police on June 22, 2022, that they were going to court soon, and she only wanted the applicant to have supervised access.

[188] Both parties have made allegations of serious intimate partner violence. The respondent has alleged family violence, coercive control, and sexual abuse of M. The court finds that there was family and intimate partner violence between the parties. Family violence affects not only the individuals and their immediate family, but also society.

[189] Both parties were involved in a relationship plagued by jealousy. Determining who was the actual perpetrator is a difficult task. The credibility of the parties must be assessed in the context of the family violence. In Barendregt v. Grebliunas, 2022 SCC 22, 66 B.C.L.R. (6th) 1, at paras. 144-145, Canada’s highest court recently acknowledged that “family violence often takes place behind closed doors and may lack corroborating evidence,” that it is “notoriously difficult to prove,” and that “most family violence goes unreported.” The respondent has alleged repeated physical, psychological, and sexual abuse, as well as threats and intimidation by the applicant during their relationship. The respondent has also alleged social isolation, coercive control, and financial control.

[190] Traditional methods of determining credibility are inadequate to assist the court in deciding whether a witness or the evidence is credible where family violence involved, as there is a danger of incorporating myths and stereotypes into the assessment. Victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent, and accurate recollection and timeline of the events in question: K.K. v. M.M., 2021 ONSC 3975, aff’d 2022 ONCA 72. There are social and legal barriers which may affect the disclosure of family violence, and any delay in disclosing its existence does not diminish its seriousness: Barendregt, at para. 183.

[191] In this case, the court accepts that there was family violence, and accepts the applicant’s evidence as more credible that it was historical and that it was the respondent who was the instigator. There is evidence to support the applicant’s testimony that the respondent shifted her possessiveness towards their daughter. Several professionals have referred to the respondent’s restrictive gate keeping. For example, Dr. Harris labelled it “highly restrictive gate keeping.” In the result, the respondent’s evidence that she has directly observed the applicant’s repeated sexual abuse of M. is not plausible, as there were signs of hypervigilance towards M. and restrictive gate keeping, as evidenced by the Rules, Appendix C, for babysitting, which she gave to the grandparents.

[192] The respondent has also provided inconsistent stories, initially telling the CYAC that she did not directly witness any sexual behaviour between the applicant and M., and then later saying that she did. The respondent described countless incidents which she said she witnessed. Dr. Harris noted that the respondent was “deeply concerned” because “it implicates her in the alleged abuse in terms of a disturbing failure to protect her child.” In her report, Dr. Harris indicated: “It is impossible for me to say that there is no risk for Mr. Y[xx] as assessment is not an exact science. I can only offer that in my opinion based on the available information, the risk is likely low that he sexually abused M[xx]”. In yet a third version of the story, the respondent gave the reunification therapist a different timeline. Ms. Haroon noted in her report:

Ms. Y[xx] reports that she first learned of the sexual abuse when M[xxx] made a disclosure to CAS during an interview and that is when she learned that Mr. Y[xxx]would abuse M[xxx] when she was in the shower or sleeping.

[193] The respondent said that she was isolated from her friends, and that the applicant would change the password on her phone; however, her friend, Mr. Krause, says they texted and spoke weekly.

[194] As noted, the respondent provided different versions of events for certain sexual abuse incidents which she says she observed. Ms. Haroon noted in her report:

“Ms. Y[xx] reports that they were potty training M[xx], and she was teaching M[xx] about her private parts and touching of her private parts and that Mr. Y[xx] put his hand in between M[xxx]’s vulva and said, “This is for dad.”

However, the respondent sent an email to Detective Panton, with the following:

2017-2019: G[xxx] telling M[xxx] her genitals were for dad (sexual grooming).

There was a morning where M. indicated that she needed to urinate. G. said he would take M. to the bathroom so I could rest. I noticed that it was taking longer than usual so I walked down the stairs to check on M. and G. ….I was behind G. and stood in the doorway. While I stood in the doorway, I saw G. wiping M.’s genitals with a baby wipe. As he was doing so, I clearly herd G. say “This [M[xxx]’s genitals] is for dad” in an aggressive voice.

[195] The evidence indicates that well before these proceedings, it was the respondent who had set out rigid rules for M.’s grandparents to follow, which dictated in meticulous and minute detail, the “do’s” and “don’ts” in caring for M. The rules even prohibited the grandparents from having visitors in their own home or taking M. outside. There were a number of tasks relating to dressing and undressing M. A portion of the list reads:

Cleanliness

Do not strip her down naked, bathe her, shower her or wash her hair or face.

Do not brush or floss her teeth.

Do not clean her ears or try to pierce them.

Her mouth can be wiped with a damp swaddle blanket after meals.

Do not play with putting product in her hair.

Do not pull her hair up or back (no ponytails).

Do not cut, trim or try to style her hair.

Do not take her into the bathroom or bedroom with you.

Do not cut her finger or toenails.

Do not take any photos or videos of her partially or completely undressed.

Do not take her to the bathroom with you.

Do not change in front of her.

Do not share pictures of her on social media.

[196] There are many inconsistencies in the respondent’s evidence about the applicant’s sexual abuse of M., her attempt to control the notes of professionals, and her asking professionals to “advocate” on behalf of M.

[197] On June 14, 2023, M. disclosed to Ms. Blakeley that her father hurt her arm and leg “approximately 3 years ago.” M. would have been four years and three months at the time the disclosure was made, making her approximately one year old at the time of the incident.[^1] M. has repeated variation of this story to others with a duty to disclose, as in the case of Ms. Blakeley, who disclosed the incident to CAS.

[198] The applicant was arrested December 28, 2021. The respondent deposed in her affidavit that he “blew up at her.” At trial, the respondent testified that his “violence escalated” that day. On cross-examination, she admitted that she there was no “physical violence.” She deposed in her affidavit that “in or around October 2022, [the applicant] strangled/choked M[xxx] while ‘playing fort’.” This incident would have occurred ten months after he was out of the matrimonial home. In addition, the respondent has given different versions of this incident and when it took place. For instance, at trial, she testified that she believes M. disclosed to her that the applicant father hurt her neck in either the winter in 2021 or 2022, and that the incident occurred in the fall of 2021. She has given different versions of the incident involving M. and her neck and has described it as playing with her dad as opposed to be choked.

[199] At the trial, the respondent appeared to be reading from a document during her warmup. On cross-examination, she repeatedly sidestepped answering many questions, offering commentary, or providing an answer that was not responsive to the questions, even for the most innocuous questions. For example, she was asked, “Was Juanita Valencia ever your lawyer?” She was asked various permutations of the same question but directed counsel to ask the question in a different way, answering only when she was satisfied with the question. Early on in her cross-examination, the respondent repeatedly asked for documents to refresh her memory to answer a question before the court insisted that she allow the applicant’s agent to control the questioning.

[200] Another method of answering questions was the tendency of the respondent to respond to a question with a statement like, “I believe this is addressed in my affidavit,” or “refer to the evidence of others,” providing commentary or other extraneous information. The court’s view is that this was a refusal to answer a question. An example of such an exchange between the respondent and the agent for the applicant was as follows:

Q. Did you comply with paragraph 1b of Justice Pinto’s order dated August 9, 2022.

A. Brayden Supervision timelines were given five to seven business days, and Brayden’s witnesses previously provided testimony that typically it takes longer. So, I believe this was addressed in my other affidavits including the trial affidavit, which was that at the time of this order, it was not feasible considering Brayden’s timeline requirements. [The applicant], I just want to catch my breath to reference the correct document...

Q. It is a yes or no question, did you comply by sending in the paperwork according to this timeline?

A. I think that’s been addressed in other court orders regarding the timelines, including Justice Sugunasiri’ s order from, I think it was February 9, 2023.

[201] In S.V.G. v. V.G., at paras. 103-105, Chappel J. exhaustively sets out the factors that the court should consider in assessing credibility in the context of family violence. She indicated that courts must meticulously assess the evidence in its totality to ensure that family violence claims are credible and are not being maliciously advanced to obtain a litigation advantage: Wilson v. Sinclair, 2022 ONSC 2154; W.A.C. v. C.V.F., 2022 ONSC 2539, at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943; Kinsella v. Mills, 2020 ONSC 4785; A.E. v. A.E., 2021 ONSC 8189, at paras. 276-281; Lee v. Eckenswiller, 2021 ONSC 6519, at paras. 27-29.

[202] Assessing the evidence in its totality, the Chronology at Appendix A, incorporated by reference, is also instructive, as it indicates a pattern whereby the respondent, or others whom she directed, would contact authorities as events were happening in the family law proceeding.

ii. Liz Mestanza – respondent’s friend

[203] Ms. Mestanza and the respondent are grade school friends. They met in grade six.

[204] There were aspects of Ms. Mestanza’s evidence which the court found credible, and other parts of her evidence which the court found was not credible. She lost touch with the respondent after the respondent and the applicant got together. She testified that it was harder to get a hold of the respondent. She called her a few times, and at times the applicant picked up, and indicated that the respondent was not available. On cross-examination, she testified that it was probably two or three instances when the applicant answered the phone, and this occurred before the parties were married. She attended their wedding. She testified that the respondent was crying at the wedding because she had forgotten cufflinks and shoes and the applicant was upset.

[205] She testified that the applicant told the respondent she had to be at arm’s reach; she was not permitted to pick up her daughter. When the respondent’s father passed away, she was not allowed to attend his funeral or visit his grave. The applicant was “always throwing furniture” at the respondent. Ms. Mestanza testified that the respondent also told her that when she and M. went out, the applicant would follow them to see what they were doing and search her Google history. On cross-examination, Ms. Mestanza testified that the last time she saw the applicant was at the parties’ wedding, which was also the last time she saw the parties together. She has never seen the applicant and M. together.

[206] Ms. Mestanza testified that when she was in labour, the respondent called and told her that the applicant had strangled her in front of M., and that they were hiding in a room. Ms. Mestanza admitted to telling Dr. Harris that she told the respondent to call the police, but then heard the respondent apologizing to the applicant, and then the phone was cut off. At trial, she says she tried calling back and texted, but did not get through. She also texted the following day. She says she reported the incident two years later in the fall of 2022 and she went to the police station to make the report.

[207] On cross-examination, she testified that she and the respondent texted each other on a weekly basis before the parties separated; after the separation, the frequency increased to every other day.

iii. Nataliya Nady – respondent’s friend

[208] Ms. Nady and the respondent met in 2002 at university. They remained friends after university. She went to the parties’ wedding in 2011. She now lives in the United States.

[209] There are problems with Ms. Nady’s affidavit, which includes evidence that is not in her personal knowledge, and to the extent that she is the recipient of statements, does not identify the source of the information, or make any conclusion about things she observed or heard.

[210] At the trial, Ms. Nady demonstrated that she was not an impartial witness by making statements and offering to provide “opinion evidence” to the court. During the course of the warmup questions, the respondent sought to elicit opinion evidence from her. Specifically, the respondent tried to get Ms. Nady to comment on “the importance of recognizing partner abuse and the effects on a child,” her opinion on what a “healthy parent child relationship” looks like, or her opinion on the ultimate question for the court to decide, that is, what is in the best interest of M. Ms. Nady made claims like, “Children and their safety should be prioritize, should be the focus for parents and everyone.” When the court was ruling that Ms. Nady could not provide opinion evidence, she interjected to seek leave to permit her to “speak as a non-expert mother.” She said: “I also have children and my observations when is spoke to [the respondent] about how the behaviour is towards the child.”

[211] There were numerous inconsistencies in Ms. Nady’s evidence, some of which conflicted with what she told Dr. Harris, and some of which is conflicting by virtue of implausibility.

[212] Ms. Nady’s qualification was not elicited for the court. She lives in the United States and is the mother of two children. She has never met M. On cross-examination, she said she travels to Canada very regularly to visit family and friends. She testified that she last met with the respondent in 2019, after M. was born, in either December 2019 or December 2020. She said that when she met up with the respondent, M. was about two at the time. She said the respondent told her that M. was “on a playdate.” On cross-examination, she admitted that it had been years since she had seen the respondent before that one meeting. She admitted that she and the applicant has not spoken since M. was born.

[213] Ms. Nady attempted to connect the respondent with another friend who had a child. She had difficulty recalling when that took place. She guessed it was around COVID, in 2020. On cross-examination, she said it was late 2021, but then said, “or more recently or most likely 2022.”

[214] The extent of Ms. Nady’s evidence on the applicant’s controlling behaviour relates to what she says she observed or was told to her by the respondent, which are all incidents occurring before and up to 2007. She said that after the parties moved in together, she and the respondent spoke less. She said that the applicant was “extremely controlling and did not want [the respondent] to interact with” her, and became angry that she “took a photo with the groomsmen and smiled politely at them.”

[215] At trial, Ms. Nady testified that she and the respondent speak on the phone on average once a month. This contrasts with her evidence in her affidavit which suggests a relationship where the two had grown apart. She deposed in her affidavit that:

After G[xxx] and C[xxx] moved in together, in or around 2007, C[xxx] and I began to talk less. I only remember having the occasional dinner with C[xxx], and we would occasionally speak over the phone, email, or LinkedIn.

[216] Ms. Nady blames the applicant for the fact that she and the respondent did not meet more often when she came to Canada every year. She deposed in her affidavit that:

There were many instances where C[xxx] wanted for me and my kids to meet and play with M[xxx], but I told her to not risk her safety or M[xxx]’s. I was scared that [the respondent] would negatively react or isolate them even more if he found out.

[217] Her explanation is also inconsistent with what she told Dr. Harris. Dr. Harris wrote:

Ms. Nady has never met M[xxx] as [the respondent] would not let [the applicant] go anywhere and then COVID restrictions happened.

[218] Ms. Nady testified that the respondent wanted to meet more often, and she asked the respondent not to do so as she knew it would not be welcomed by the applicant. She admitted that she has still not met M., up to the date of the trial.

[219] Ms. Nady said that she teaches at University of California, and during one of her training sessions, she received a slideshow on intimate partner abuse and harassment. She deposed in her affidavit that she sent a text to the respondent in or around 2020 about recognizing the signs of partner abuse. It was not evident on cross-examination as to when the text was sent. The court also has some doubt about whether the text is actually from Ms. Nady’s phone. She testified that texts get deleted after a year, and she denied that the text is from the respondent’s phone, but provided no explanation to how that particular text still existed at the time she swore her affidavit some four years later in 2024.

[220] Ms. Nady has also given multiple different versions of what she was told by the respondent as to why M. was not in school.

[221] Ms. Nady told Dr. Harris that the respondent told her that M. was not in school because the respondent would not allow her to be vaccinated. Her evidence at trial was that she was told by the respondent that she was not in school because of COVID and also because the applicant wanted her to stay home. Judicial notice can be taken as to when the pandemic was declared in Ontario, which was March 2020. M. would have been three years old at the time.

[222] In her affidavit, Ms. Nady said she “developed unwelcomed feelings towards G[xxx] over time.” Dr. Harris indicated that Ms. Nady told her that that when she first met the applicant, she did not like him. She says Dr. Harris took the statement out of context. Coincidentally, Ms. Nady also says that Dr. Harris misconstrued comments she made about the respondent’s father but was accurate in her recitation of comments she made about the applicant.

iv. Daniel Krause – respondent’s friend

[223] Mr. Krause is a friend of the respondent. Mr. Krause was a credible witness. Where his memory failed him, given the passage of time, he candidly made that clear to the court.

[224] Mr. Krause lives in Minnesota. Between 2011 to 2014, Mr. Krause was the respondent’s manager. He moved to the United States in 2014. In his affidavit, he deposed that the applicant would call the respondent multiple times throughout the workday and during meetings. He deposed that he “abruptly exit[ed] meetings or retreated to private offices/ meeting rooms to take repeated calls from [the respondent].” Following the calls, the respondent “often looked afraid, shaken, uneasy, quiet, and tense.” He would ask if she was “okay” and whether he could do anything to help, but she “was unwilling to discuss specific details about the calls.”

[225] He deposed that the respondent arrived at work on several occasions with marks on her body, including bruising on her arms, wrists, and once on her face. He testified that he “noticed signs of domestic issues and domestic violence” in 2011 or 2012, but it was confirmed when he spoke to the respondent in 2020. He said that when he asked her about the marks, she would come up with excuses. On cross-examination, he said he thought her answers were guarded and reserved. He had suspicions and concerns about physical abuse but did not pursue further investigation because the respondent did not disclose or confirm the nature of abuse. In or around 2012, the respondent showed up to work with a severely damaged work-issued laptop. Mr. Krause said that there “was little to no explanation provided for the damaged laptop,” but he “had reason to believe that [the respondent] was responsible for this.”

[226] Mr. Krause said that he observed the applicant “hiding in the bush,” but had few details about what the statement meant. He said it was his impression that the applicant “was obviously looking not be spotted.” He said that it was very rare. He testified that the applicant also went on some of the company trips.

[227] On cross-examination, Mr. Krause testified that he last saw the applicant in 2012 or 2013. He has never met M. in person, but has met M. on FaceTime, when speaking with the respondent. He has never seen the applicant, respondent, and M. together.

[228] On cross-examination, Mr. Krause mentioned several individuals with whom the respondent was close at work. He testified: “she was very social and very engaged with her team in social settings. So, I would say that she was quite popular and had several friends within the [company] scientific organization during the time I was with her.” On a professional level, he was closer to her than some of the individuals identified, “from a personal perspective,” and he indicated that she would be closer to one of her colleagues in her peer group.

[229] After the respondent contacted him in 2021, Mr. Krause says they have been speaking on the phone on a weekly basis, which is roughly the same frequency as before the parties separated. They communicated both by text and by phone, with the text messages usually initiating the conversation with a message such as, “can you talk,” followed by a phone call. When Mr. Krause was asked if he would find it surprising that the respondent indicated to police that she was unable to call the police or even speak with other people because she was so controlled by the applicant, Mr. Krause says that she would have to “go to a private location” and would “often say that she would have to go to the grocery store.”

[230] In addition to going well beyond the affidavit, the respondent sought to solicit Mr. Krause’s opinion on domestic violence and the prioritization of a child’s safety, among other things. None of this evidence is helpful to the court.

v. Dr. Diana Avalle, Psy.D – litigation expert

[231] Dr. Avalle prepared a report dated January 21, 2024. She is a licensed clinical forensic psychologist with a doctorate in Clinical Forensic Psychology obtained in 2018 from The Chicago School of Professional Psychology. She indicated that the Psy.D designation is equivalent to a doctorate designation in clinical psychology. The respondent sought to have Dr. Avalle qualified as an expert in the areas of trauma, domestic violence, custody evaluation, child abuse and neglect, parental alienation, and “Family Bridges.”

[232] Like Mr. Wygant’s report, the court does not find Dr. Avalle’s report to be necessary or of assistance to the court. She was retained to review records related to the evaluation of the s. 30 report, which was completed by Dr. Harris, and to review her recommendations, particularly referring the family to the Building Family Bridges program in the context of intimate family violence and child abuse.

[233] Dr. Avalle indicated that her area of expertise “was anything psychologically relevant in the legal field.” She carries out evaluations and assessments in different areas of law, including family law, and testified that “more specific to this case would be doing forensic evaluation or providing therapy services for individuals of all ages that have experienced some form of abuse and trauma either in childhood or as an adult.” Dr. Avalle testified that this would include completing a parenting or “custody” evaluation, “particularly where child abuse is involved.”

[234] Aside from Dr. Harris’ report, it is not clear what documents Dr. Avalle reviewed in order to arrive at her opinion. At trial, she testified that she did not meet with the applicant. She did not meet with the respondent. She never met M. She did not meet with M.’s therapist. Unlike Dr. Harris, she did not speak to the parties, nor did she speak to the collateral sources.

[235] Dr. Avalle believed that since abuse had been substantiated, a referral to the Building Family Bridges (BFB) program was not appropriate. In her report, she noted that “given this case involves substantiated allegations of abuse against the child by the father, this issue of “alienation” is moot on its surface, and thus, any recommendations for programs predicated on this notion should not even be considered.” At trial, she testified about facts not in evidence, and things not addressed in her report.

vi. Jessica Blakeley, Registered Psychotherapist – participant expert

[236] Pursuant to the order of Steele J., dated October 25, 2022, M. was referred by her parents to Ms. Blakeley.

[237] Ms. Blakeley is a registered psychotherapist. In 2021, she completed her Masters in counselling psychology. She sees M. on a weekly basis for private sessions, and believes she is benefiting from therapy. She was “quite withdrawn and quiet” initially, but has become “quite social, very open,” and “more confident” and “quite playful” now. She is speaking more about things external to her therapy sessions. Ms. Blakeley testified that M. has not disclosed any incidents of sexual abuse to her.

[238] There were two disclosures made by M. which prompted reporting. First, Ms. Blakeley’s notes from February 15, 2023, indicate: “M[xxx] disclosed that her father hurt her neck and that her father used his arms and wrapped them around her neck, and it hurt.” On cross-examination, Ms. Blakeley indicated that the disclosure was made as the session was ending. She testified that M. said, “I have something to tell you.” Ms. Blakeley invited her to share the information. M. also told her that “her father never lets her feel her feelings and would say mean things to her.” She testified that M. would not expand on that. M. indicated that she felt “sad and scared of her father and scared that he would hurt her again.” Ms. Blakeley described that “M[xxx] had her eyebrows furrowed when she was expressing this, but she did not seem overly distressed, as noted.” When she brought M. back into the waiting room where her mother was, “she snuggled into her mother, gave her a bit of a hug, and stated: ‘I told Jessica what daddy did’, and mom praised M[xxx] for sharing, and M[xxx] seemed happy with mom, and excitable and sort of being silly when getting ready to leave.”

[239] The second disclosure was on June 14th, 2023. Her notes indicate: “M[xxx] indicated that her father hurt her arm and leg. She said, “Dad scratched me on my arm and leg with his nails.” Ms. Blakeley indicated that M. shared about being brought to a visit with her father and expressed that she was scared and sad to go because her father has hurt her. M. then disclosed that “approximately three years ago” he hurt her arm and leg. Ms. Blakeley testified that it was M. who said, “approximately three years ago.”

[240] Ms. Blakeley spoke to Dr. Harris on June 13, 2023, and advised her that M. presented as a typical six-year-old, is functioning well, was very intelligent, appeared to have appropriate interactions with her mother, and did not have a lot of details when she spoke about her father. She testified that M. now seems to be quite playful and speaks about things going on outside of the therapy sessions.

IX. Analysis

A. Evidence at trial in family law proceedings

[241] As noted, evidence in family law is given by way of viva voce evidence, except with leave of the court, which was granted in this case.

[242] Evidence in chief of the parties was adduced primarily through an affidavit. In the result, the affidavits ought to have been confined to the statement of facts within the personal knowledge of each of the parties. Documents put forward as exhibits, absent an agreement as to the truth of the contents, must be capable of being proved by the deponent, in the same way as if they were testifying as a witness in court. The affidavits before the court included inadmissible hearsay evidence, including opinion evidence and argument.

[243] For example, the applicant’s affidavit included expert reports, police records, supervising service centre records, and excerpts from the transcript of the respondent. As for the respondent, her affidavit also included hearsay evidence and included opinion evidence (dealt with below).

[244] One exception to the inclusion of such inadmissible evidence is an expressed allegation of recent fabrication.

[245] As the parties are self represented, there was no voir dire on the admissibility of evidence. In a reply affidavit, the respondent raised her objection to some of the evidence in the applicant’s affidavit.

[246] There are also exhibits attached to affidavits which contained hearsay evidence, and no agreement by the party regarding the truth of their contents. As noted above, exhibits annexed to an affidavit are not sworn evidence: see Katz; Sears. In Sears, at para. 32, the court stated:

Letters, text messages, and emails attached to affidavits are not sworn evidence. Before making an order, the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents.

i. Expert evidence

(a) General

[247] Expert opinion evidence is only admissible if it is: (i) relevant; (ii) necessary to assist the trier of fact in drawing appropriate inferences; (iii) not subject to an exclusionary rule; and (iv) given by a properly qualified expert: R. v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, [1994] 2 S.C.R. 9. The Supreme Court has indicated that opinion evidence that does not meet these criteria should not be admitted: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para. 23.

(b) Commenting on credibility

[248] During the course of the trial, the parties asked various experts to comment on the credibility of evidence of a witness. The ultimate determination as to the credibility or reliability of a particular witness is for the trier of fact and is not the proper subject of expert opinion: see R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at para. 49.

(c) Section 30 Report

[249] Under s. 30 of the Children’s Law Reform Act, the court may seek the assistance of persons having special skills or experience to provide a report on the needs of the child and ability or willingness of parties to meet those needs. The provision reads:

30(1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

[250] Section 30(9) provides that the report is admissible in evidence in the application. The parties argued that the report should be filed as a numbered exhibit, and although the court ultimately ruled in the parties’ favour, it was made clear to them that the law of evidence still governed the admissibility of any hearsay evidence in the report. Neither party was able point the court to any authority to indicate that admitting the report into evidence was tantamount to accepting the report for the truth of the content. Indeed, either party has the right to cross-examine the assessor.

[251] Apart from reports governed by s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, expert evidence at a trial court is usually the viva voce evidence of the expert, and not the report the expert provided before trial: 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, citing Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Markham: LexisNexis, 2016), at pp. 1004-1005; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 131.

(d) Reports governed by s. 52

[252] Throughout the trial, the applicant or his agent advised the court that the respondent had uploaded a document during the trial to Case Center. The applicant submitted at times that the believed documents were altered. Trial Briefs and Exhibit Briefs had already been delivered. The respondent claimed she gave notice in October of 2023. During her own testimony, the respondent sought to tender into evidence of an “anxiety assessment report” prepared by a practitioner, to which the applicant objected. There was no affidavit from the practitioner. There was no consent by the parties. The respondent did not intend to call the practitioner and fairness required that the practitioner be available for cross-examination.

[253] In Girao, the Ontario Court of Appeal addressed the admissibility of a report under ss. 35 and 52 of the Evidence Act. In that case, the report was a letter from a doctor. The cited the Supreme Court of Canada’s decision of R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 1, and reiterated that hearsay evidence “is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth”: Girao, at para. 43. At para. 45, the court went on to state:

Section 52 of the Evidence Act relates to medical reports and is more expansive than s. 35. It permits the court to allow the report to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. However, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination. See Kapulica v. Dumancic, 1968 CanLII 419 (ON CA), [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, 1999 CanLII 9303 (ON CA), [1999] 46 O.R. (3d) 309, at paras. 12-15; see also Doran v. Melhado, 2015 ONSC 2845. See generally Michelle Fuerst, Mary Anne Sanderson, and Donald Ferguson, Ontario Courtroom Procedure, 4th ed. (Toronto: Lexis Nexis Canada, 2016), c. 41. [Emphasis added.]

[254] In this case, there was no agreement by the parties about the note. There was no affidavit from the practitioner to file the note, and the practitioner was not being made available for cross-examination.

ii. Lay people providing opinion evidence

[255] A basic tenet of our law is that the usual witness may not give opinion evidence, and must testify only to facts within their knowledge, observation, and experience: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49; Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819.

[256] The respondent repeatedly sought the opinion of various witnesses on a wide range of subjects involving domestic violence, coercive control, and the behaviour of children exposed to violence, among other things. She also provided opinion evidence, and the following are a few examples from her affidavit.

[257] At paragraph 163, she stated: “M[xxx]’s statements and behaviors are consistent with trauma and abuse.”

[258] At para. 152 of her affidavit, the respondent deposed:

In response to paragraph 156 of [the applicant’s] Affidavit concerning M[xxx]’s preference for and reaction to touch, this again needs to be understood from a trauma perspective. M[xxx] takes great issue with non-consensual touch. If M[xxx] feels safe and agrees to be touched she is a very cuddly and affectionate person. Context, trauma awareness and body autonomy is very important.”

[259] At para. 182, she stated:

In response to paragraph 140 of [the applicant]’s Affidavit, there are police reports from 2008-2021 which support and identify verified domestic violence. [The applicant]’s self-assessment is not a reasonable measure of [the applicant]’s propensity for violence or recidivism. The ODARA confirmed [the applicant]’s chronic history of repetitive assaults and extreme sexual jealousy are beyond social norms.

iii. Hearsay

[260] On multiple occasions during the trial, the respondent attempted to cross-examine witnesses on articles and statistics. She did so regardless of the court’s ruling, and accordingly, it must be clear that none of the articles put to expert witnesses, whether the witness was a litigation expert or participant expert, were known by the witnesses, nor did these expert witnesses acknowledge the articles as being authoritative in the field. It is well established that if a witness is asked about a text and has no knowledge of it or denies its authority, no further use can be made of the text by reading extracts of it into evidence. However, if the witness admits its authority, then they may be asked to explain any apparent differences between its opinion and their own: R. v. Marquard, at para. 114.

iv. Texts, email, and journal entries of the parties

[261] Both parties relied on documents, such as text messages and emails, which they sent to others. There was no agreement by the parties regarding the use to be made at trial of the document brief, or any of the other documents. As noted, the Court of Appeal has urged that parties engage in this practice: Girao, at para. 53; Iannarella, at paras. 127-128; and Pingue, at paras. 39-40. Unless there was an agreement by the parties, the court gives little weight, if any at all, to the content of the documents.

[262] Both parties also repeatedly relied on statements they made out of court in emails and texts, statements to staff at the supervising centres, and statements to authorities, among others. The court has concluded that no exception applies to these statements, and they are inadmissible in whatever form they are in before the court. It is well established that prior consistent statements to prove that the maker of the statement is telling the truth are presumptively inadmissible, because they tend to be self-serving statements: R. v. Morin, 2024 ONCA 562, at para. 20; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139. The Supreme Court of Canada noted that a prior consistent statement cannot corroborate in-court testimony, as it comes from the same source as the testimony and is not independent proof. Moreover, repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. There are exceptions to this general rule. One exception is where the purpose of the prior consistent statement is to rebut an allegation of recent fabrication: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272. Most recently, in Morin, at para. 20, the Court of Appeal explained the basis for inadmissibility as follows:

There are two main reasons for this. First, using a witness’s prior out‑of‑court statements for the truth of their contents engages the hearsay rule, regardless of whether the statements are consistent or inconsistent with the witness’s in-court evidence. Second, when a prior statement is consistent with the witness’s testimony, the mere fact of the consistency cannot be used to infer that the witness’s in-court evidence is more likely to be true: Khan, at para. 25.

v. Critique reports of s. 30 assessment

[263] As indicated above, the court did not find the critique reports of either Mr. Wygant or Dr. Avalle helpful to the court. In M. v. F., 2015 ONCA 277, 58 R.F.L. (7th) 1, the Ontario Court of Appeal indicated that critique evidence does not meet the criteria for expert evidence set out in R. v. Mohan. Critique evidence is rarely appropriate. It generally has little probative value, adds expense, and risks elevating the animosity of the parties: M. v. F.; Sordi v. Sordi, 2011 ONCA 665, 13 R.F.L. (7th) 197.

B. Legislation

[264] This application was commenced under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and for corollary relief under the Family Law Act, R.S.O. 1990, c. F.3. The Divorce Act takes paramountcy over the relief sought for parenting time, decision-making responsibility, child support, and spousal support. The Family Law Act governs the claim for the equalization of net family property asserted by both parties.

[265] This court may make an order providing for the exercise of parenting time or decision-making responsibility for any child of the marriage: Divorce Act, at s 16.1. Decision-making responsibility for a child, or any aspect of that responsibility, may be allocated to either spouse or to both spouses: Divorce Act, at s. 16.3.

[266] The order may be for a definite or indefinite period, and the court may impose any terms, conditions, and restrictions it considers appropriate: Divorce Act, at s. 16.1(5).

[267] The court shall take into consideration only the best interests of the child of the marriage in making a parenting order: Divorce Act, at s. 16(1). Section 16(3) lists factors for the court to consider, discussed below.

[268] When considering the factors referred to in s. 16(3), this court shall give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being: Divorce Act, at s. 16(2).

[269] The best interests test is the only test to be applied. Parental rights, interests, and preferences play no role in this determination: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.

[270] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[271] Assessing the “best interests of [a] child [for purposes of a parenting order] is a heavy responsibility, with profound impacts on children, families and society”: Barendregt, at para. 8. It is also a highly “individualized and discretionary” inquiry: Barendregt, at paras. 9, 97.

[272] Under s. 16(2) of the Divorce Act, as amended, in deciding what is in the best interests of the child, the court must give primary consideration to a child’s “physical, emotional and psychological safety, security and well-being.” In doing so, the court is guided by the factors in s. 16(3).

[273] Section 16(3) lists some of the factors to be considered by the court in determining the best interests of the child. While the list is not exhaustive, the court “shall” consider “all factors related the circumstances of the child,” including the following: the child’s needs, given their age and stage of development (s. 16(3)(a)); the nature and strength of the child’s relationship with each parent (s. 16(3)(b)); the willingness of each parent to support the development and maintenance of the child’s relationship with the other parent (s. 16(3)(c)); the history of care of the child (s. 16(3) (d)); the child’s views and preferences (s.16(3) (e)); the child’s cultural, linguistic, religious, and spiritual upbringing and heritage (s. 16(3)(f)); any plans for the child’s care (s. 16(3)(g)); the ability and willingness of each parent to meet the needs of the child (s. 16(3)(h)); the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child (s. 16(3)(h)); any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child (s.16(3)(h)(i)); the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child (s. 16(3)(j)(ii)); and any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child (s. 16(3)(k)).

C. Assessing the best interests of the child – s. 16 of the Divorce Act

i. Section 16(3) – General factors

(a) The child’s needs

[274] M. is seven years old. She is being homeschooled. From the recent accounts by Ms. Blakeley, she is doing well. The professionals, including the respondent, say that she is an intelligent child.

[275] Ms. Blakeley says that at M.’s age, M. is unable to meet her needs completely on her own and she is dependent on others. She is now functioning well.

[276] Many expressed concerns about M.’s lack of socializing with kids of her own age and learning social skills, including Sharma J. Despite promising CAS and Dr. Harris that she would put M. in school, the respondent has failed to do so, and her evidence in her affidavit falls far short of establishing that she has made any attempts to do so.

[277] Dr. Harris is of the view that school would equip M. with many social benefits and promote her social skills development with same-aged peers. When M. was interviewed by Dr. Harris, M. was not able to name a single friend. This is consistent with the applicant father’s evidence that M. is isolated and this relates to his desire for her to attend school. From the respondent’s evidence, the respondent maintains that homeschooling is best for M.’s “profile.” The respondent recently enrolled M. in a homeschool group, but according to Dr. Harris, that is not sufficient to overcome the disadvantage of M. not socializing with her peers at school.

(b) Nature and strength of the child’s relationship

[278] In resolving parenting time and primary residence disputes, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children: Barnes v. Parks, 2001 CanLII 241146 (ON CA). The Divorce Act also requires the court to assess the nature and strength of the child’s relationship with each parent.

[279] Since separation, parenting time has been primarily with the respondent mother. This arrangement was unilaterally imposed by the mother.

[280] Both Ms. Blakeley and Dr. Harris note that regardless of the origin of the abuse allegations, M. believes that she was abused by her dad and has a fear of him. M. believes that she was harmed by her father, resulting in fear which contributes to the parent-child contact problems. However, M. appears to still have a bond with her father, despite the respondent’s mother’s repeated claims that she was “terrified” and afraid of her father. At the successful visit discussed above, it only took 15 minutes for M. to warm up to her father, and at the end of the sole visit that took place 16 months after she had last seen her father, M. allowed the applicant to help her with her boots, hat, and mittens.

[281] Despite the contact problems since the separation, driven by the respondent’s fabricated allegations of sexual abuse, and contempt of all court orders, M.’s bond with her father was still present.

(c) Willingness to support relationship with other parent

[282] The respondent is not willing to support the relationship with the applicant. The applicant, on the other hand, contemplates a future that includes the respondent working with a reunification therapist to assist the parties and support them in learning how to parallel parent, so that the parties can maintain a positive relationship with M.

[283] The respondent has disobeyed every court order, while appearing that she was complying with the orders. Of the 52 scheduled parenting visit, the only one that took place was with Dr. Harris. The notes of the professionals before the court indicate that the respondent has repeatedly asked M. to tell them why she does not want to see her father and has asked her numerous times whether she wanted to see her father. In doing so, the respondent was sabotaging the applicant’s right to parenting time. The supervising professionals who testified indicated that M. repeats the same phrases over and over.

[284] In his endorsement dated October 2, 2022, Sharma J. commented that he was not satisfied that the respondent had exercised reasonable efforts to give effect to the parties’ agreement to use Renew. The court agrees with those comments. The record before the court indicates unacceptable conduct by the respondent in this regard, which frustrated the applicant’s ability to exercise supervised parenting time with Renew. Justice Sharma also expressed his concern about the respondent’s ability to parent M. and his concern that the child was not in school given the level of socialization shown by the child. He noted:

[The respondent] consistently arrived late. Her excuses test credulity. She consistently failed to follow instructions from Renew. She created an unnecessary conflict with the onsite Renew Supervisor. The result is that the applicant still has not exercised court ordered supervised parenting time with M.

The respondent provided reasons why she was repeatedly late, and why the child was afraid to see her father, and why she had difficulty getting the child to exit the car or to leave her to attend the supervised parenting session. I am concerned as to the respondent’s parenting ability, given her inability to control her child. I am concerned that the child is not in school, and her inappropriate conduct may be a consequence of not having opportunities to learn better social skills. I also have doubts as to the respondent’s willingness to comply with parenting supervision sessions, as ordered by the court given her unexplained delay in completing Brayden intake forms, her delay in identifying an agreeable section 30 assessor, and her entirely inappropriate conduct with the supervisor from Renew. The result of her delay and conduct has prolonged periods when the child does not see her father.

[285] Dr. Harris’ evidence is that the respondent “did not cooperate, in my view, with the court ordered supervised parenting time.” That fact is manifestly apparent from reviewing the supervising records. The respondent repeatedly showed up late in the beginning. She refused to follow the directions of the staff as to how to get M. to enter the building, and then would turn around and ask them what they would suggest. There is ample evidence to indicate that the respondent not only did the bare minimum, but she actively sabotaged the applicant’s parenting visits.

[286] The respondent takes the position at trial that she showed up at the visits but blames the failed visits on M.’s unwillingness to see her father. Supervised visits were being scheduled when M. was five and six years old. No visits have been scheduled beyond October 2023, as the respondent refuses to permit M.’s therapist, Ms. Blakeley, to speak with Brayden Supervision Centre. Coincidentally, these events occurred around the same time Czutrin J.’s order on October 23, 2023. Justice Czutrin directed that the respondent remain in her vehicle for supervised access visits facilitated by Brayden. The order stated that the respondent:

[S]hall remain in her vehicle and allow Brayden staff to remove the child from the car. The respondent shall comply with reasonable recommendations made by Brayden to facilitate the exchange. The respondent shall remain outside the access Centre during the child’s parenting time with the applicant….

[287] Despite the order of Czutrin J., the respondent has refused to consent to let Brayden Supervision Centre supervisors speak with M.’s therapist. Ms. Blakeley testified that she provided a consent to both the applicant and the respondent so that she could speak to Brayden. The applicant signed and returned the consent. The respondent did not sign any consent forms sent to her and did not want to provide her consent. Ms. Blakeley thought it was a reasonable request.

[288] At the trial, it became apparent during Ms. Blakeley’s testimony, that the respondent had not produced her records to the applicant either.

[289] The applicant has consented. Further visits have not been scheduled. Despite the very serious nature of the allegations involving sexual abuse of a parent of a child, the CAS notes indicate that the respondent did not always co-operate when the CAS asked for a home visit.

[290] In her report, Dr. Harris sets out the ways in which the respondent did not support M. emotionally, and physically, with parenting time. She and multiple supervision professional have indicated that the respondent could have done more to support M., in order to facilitate the visits. Dr. Harris noted that “showing up physically is not the same thing as supporting the child to engage in a particular activity, event, parenting time.”

[291] On the other hand, the respondent has attempted to enlist others who should be neutral to “advocate” for M. to not see her father, including CAS staff, and M.’s court appointed therapist, Ms. Blakeley, who has managed to not choose sides. Ms. Blakeley testified at trial that the respondent had asked her to advocate for M. to not see her father.

[292] The respondent is clear that the only option she will support is a therapeutic goodbye, whereby the applicant and his family is severed from the child’s life. The steps the respondent has taken to ensure that the applicant would not have any parenting time with his daughter indicates that she cannot be trusted to support M.’s relationship with her father. Dr. Harris noted that children are very attuned to their parents’ verbal and nonverbal distress, as it is critical to their survival. From small to large gestures, examples include: refusing to take a piece of cheesecake - which was M.’s favourite - that her dad made for a visit, when M. would have enjoyed it and wanted to ensure that her mother had piece; the respondent’s public rejection of a small overture to assist M.; and her advising the supervisor that a note, which the applicant was encouraged to write to his daughter, should not be read as to do so would “scare” M. These actions demonstrate the lengths the respondent has gone to in order to ensure that the applicant is no longer a part of M.’s world.

[293] Dr. Harris believes the respondent will continue to make more sexual abuse allegations as long as there is ongoing litigation. However, that is a choice that the respondent has and has always had.

[294] Based on the evidence, the court is satisfied that the respondent is not willing to support M.’s relationship with her father. The court is satisfied that the applicant is willing to support his daughter’s relationship with his mother.

(d) History of care of the child

[295] Until the separation, M. lived with both parents. She has a strong attachment and emotional bond with her mother. The respondent has been her sole caregiver since the separation, but that has been due to the respondent’s allegations of sexual abuse of M., the fact that the respondent has disobeyed court orders, and the multiple roadblocks the respondent has put up to prevent the applicant from seeing M. It is difficult to assess the applicant’s parenting ability, which was partly the purpose of the numerous court orders affording the applicant supervised parenting time with M.

[296] The court accepts the applicant’s evidence that he had a very good relationship with M. before the separation. There is some basis to infer that this was the case. As indicated above, even with the attempts made by the respondent to undermine that relationship, it was evident by the short period of time that it took M. to warm up to her father (less than 15 minutes), despite the respondent’s repeated protestations that she was “terrified” and “afraid” of her father, that there is a bond. Ms. Atcha’s evidence was that this was unusual.

[297] The court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child’s best interests: B.J.T. v. J.D., 2022 SCC 24, 85 C.P.C. (8th) 1, at para. 73. The respondent’s refusal to obey court orders in relation to the applicant’s parenting visit created the status quo. A party’s unilateral imposition of a post-separation parenting schedule to gain tactical advantage is not sufficient to create a status quo: see J.(D.L.) v. L.(D.L.), 2009 PECA 6, 284 Nfld. & P.E.I.R. 316, at para. 19; Miller v. White, 2018 PECA 11, 10 R.F.L. (8th) 251, at para. 39.

[298] It is well established that that a party cannot take advantage of the existence of a state of affairs produced by their own wrong: see Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2024 ONCA 57, 169 O.R. (3d) 641; Berlingieri v. DeSantis et al. (1980), 1980 CanLII 1823 (ON CA), 31 O.R. (2d) 1 (C.A.); Barclays Bank PLC v. Devonshire Trust, 2013 ONCA 494, 365 D.L.R. (4th) 15, at paras. 147-61, leave to appeal refused, [2013] S.C.C.A. No. 374; and McCallum et al. v. Zivojinovic (1977), 1977 CanLII 1151 (ON CA), 16 O.R. (2d) 721 (C.A.), at p. 726.

(e) Child’s views and preferences

[299] The views and preferences of the child is one of factor that the court may consider when determining the best interest of the child. In M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at para. 46, the Ontario Court of Appeal stated:

Canada has adopted the Conventions of the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of a child’s best interest – which is engaged in all child-related matters – must incorporate the child’s view.

[300] In S.S. v. R.S, 2021 ONSC 2137, at para. 31, Mandhane J. referred to the United Nations Convention on the Rights of the Child, and its support for the importance of considering the views and preferences of the child. She noted that “in assessing the child’s best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case.”

[301] In Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, Benotto J.A., speaking for the court, noted that while the views and preferences of children must be considered in all matters affecting them, they must be viewed in context.

[302] When conducting the best interest analysis, I note that the court is permitted to discount the wishes of the children when their wishes are not independent: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 27. Here, M. has told CAS that she fears her dad taking her away from her mother. She also disclosed that her mother told her that her father would take her away. In the court’s view, M.’s views and her feelings about her father have been corrupted by the respondent.

[303] In this case, M. is seven years old now, and was almost five when the litigation started. There is ample evidence to support a finding of coaching by the respondent. There is also ample evidence for the court to conclude that the respondent’s false allegations have damaged M.’s relationship with her father. In the circumstances, the court gives little weight to the views and preferences of M., as they are tainted by the respondent’s own views and preferences: see A.M. v. C.H., at para. 75.

(f) Child’s cultural, linguistic, religious upbringing and heritage

[304] Prior to the litigation starting, the respondent appeared to want to control the extent to which M. was exposed to her Chinese heritage, culture, and language, as evidenced by the detailed Rules to M.’s grandparents. The respondent now says that M. is participating in various events so that she may be exposed to her Chinese cultural heritage. This is a new development, and while welcomed, is not sufficient to connect her to the rich culture and heritage that she has, as opposed to what M. might gain by reconnecting with her father and his heritage, without the imposition of Rules. Both parties are Christian, though the respondent has indicated that she is Catholic. On the evidence, there does not appear to be any impediment to M. being exposed to her parents’ religion. The applicant has reconnected with his own Church, as has the respondent.

(g) Plans for the child’s care

[305] The applicant’s plan of care includes the reversal of M.’s primary residence, a 90-day block out period, and reunification therapy. His mother will be involved in assisting with M.’s hygiene. He currently lives with his parents. M. will have her own room. His expectation is that both parties will ultimately be able to parent M. together.

[306] The respondent seeks an order for a “therapeutic goodbye” (discussed below) and therapy to assist with the transition, but she ultimately desires that the applicant has no further relationship with M. She proposes that M. has therapy from a “trauma informed approach.”

(h) Ability and willingness of parties to care for and meet the needs of the child

[307] Some concerns have been raised about the respondent’s mental abilities. Dr. Harris says that she is “fragile,” but the comment was made in the context of her evidence on the pros and cons of the two options. The court is not able to make any determination on the issue.

[308] There is no doubt that the respondent loves her daughter and is very proud of her daughter; however, she appears to lack insight on the harm that her conduct is causing her daughter, as evidenced by her insistence on eradicating the applicant from M.’s life. The experts have referred to her relationship with M. as “restrictive gate keeping.” She has repeatedly exposed her daughter to different authorities and professionals to be interviewed about the allegations of sexual abuse, including CAS, CYAC, personnel at the supervising centres, and a therapist. The therapist says that whatever the source of the information, M. believes that her father hurt her; that is now her reality. But, it is perhaps a reality planted by her mother.

[309] The respondent has also prevented others from assessing the applicant’s parenting abilities. On the evidence before the court, it is the applicant who has continued to focus on what is in the best interest of M., to the extent that he was prepared to agree to a therapeutic goodbye. With the support that he has in place, including his parents – his mother, a retired nurse, and his father, a chef – the court is satisfied that the applicant has an ability to care for M.’s needs.

[310] The applicant father says that M. and the respondent live socially isolated lives. M. is homeschooled. She has not been placed in a public school, although when Dr. Harris was being cross-examined, she noted that the respondent told both her and CAS that she would put M. in school. The respondent has not done so. Although the respondent brings M. to a group drop-in centre, Dr. Harris noted that this is insufficient.

(i) Ability and willingness of parties to communicate and cooperate

[311] Given M.’s age, the parties would be required to communicate openly and freely with each other. Apart from their communication through agents and lawyers since the litigation started, the parties have not communicated. There is no realistic prospect that these two parties would be able to communicate and cooperate with each other in the foreseeable future in the best interests of M. In the circumstances of this case, against a backdrop of family violence and mistrust between the parties, it is not feasible that they would be able to cooperate on issues affecting M. M. has been exposed to the conflict between her parents. A CAS note indicates that M. told the worker that her mother told her that the applicant would hurt them. She has been told that her father will lock them up and will hurt her mother. There is no expectation that the respondent will change course. The evidence indicates that the contempt motions, the court orders, and the costs awards have not deterred the respondent.

[312] As discussed, many have called the respondent’s parenting “restrictive gate keeping.” She homeschools M. and co-sleeps with her, as noted by Dr. Harris. The evidence supports that this was the case before the separation. There is evidence before the court to infer that the applicant’s decision to challenge M.’s sleep schedule and her lack of daylight exposure was the triggering event in an already complex family dynamic.

[313] Given the very high conflict between the parties, the history of intimate partner violence alleged by both parties, and the serious allegations of sexual abuse repeatedly made by the respondent (which the court finds, on a balance of probabilities, are unfounded), and Dr. Harris’ prediction that the respondent will continue to make these allegations, shared parenting is not an alternative option.

(j) Family violence

[314] The court shall consider any family violence and its impact on the following: (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child. The family violence analysis will be addressed below.

(k) Any civil or criminal proceeding

[315] The court shall consider the existence of any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[316] At the time of the trial, the applicant had an outstanding criminal charge and a restraining order (500m). The Crown withdrew the previous charges. The most recent charges on September 15, 2023, related to alleged incidents in October 2020. The applicant stated that he intended to plead not guilty to the new charges. On the evidence before the court, the applicant has obeyed with all the court orders, directions, and restrictions imposed on him. All the witnesses, experts, and participant experts, including the staff from the supervising centres, testified that the applicant had complied with all directions.

ii. Section 16(4) - Family violence factors

[317] As discussed, most family violence goes unreported: Barendregt, at para 143. The recent amendments to the Divorce Act include a non-exhaustive list of what constitutes family violence. Section 2(1) defines family violence as any conduct, whether the conduct constitutes a criminal offence, by a family member towards another family member, that is violent, threatening, coercively controlling, or causes on to fear for their own safety. For a child, it includes the direct or indirect exposure to such conduct. The provision reads as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[318] Further, as noted above, under s. 16(2) of the Divorce Act, the court’s primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being, above all other best interest considerations.

[319] In Barendregt, at para. 143, the Supreme Court of Canada noted that research shows that children exposed to family violence are at risk of emotional and behavioural problems throughout their lives, and that harm may come from direct or indirect exposure to domestic conflicts, which includes observing the incident, experiencing its aftermath, or hearing about it.

[320] Here, CAS verified “domestic violence” in March 2022. The court is not bound by CAS’s determination. In this case, the court agrees that there has been family violence. In fact, neither party disputes that their relationship went through periods where intimate partner violence was involved. However, the parties disagree, on who the perpetrator of the violence was and who the victim was.

[321] Section 16(4) of the Divorce Act sets out several factors that the court must consider in assessing the impact of any family violence. The factors assist the court in determining the ability and willingness of a parent who engaged in family violence to care for and meet the needs of the child, and the appropriateness of making an order which would require parties to cooperate on matters related to the child.

(a) The nature, seriousness, and frequency of the family violence and when it occured

[322] Under s. 16(4)(a), the court must consider the nature, seriousness, and frequency of the family violence and when it occurred. Here, both parties have raised serious allegations of intimate partner violence and family violence.

[323] The allegations of family violence by the respondent are quite serious, including emotional, financial, and physical abuse, threats of murder/suicide, and coercive control. The respondent’s allegations include conduct which is covered by each sub-paragraph of s. 2(1) of the Divorce Act, except for threats to kill or harm pets.

[324] On the evidence, there was family violence, including coercive control. There is no doubt that M. was exposed to family violence. Given the respondent’s serious credibility issues, discussed above, it is a complex issue. The party who has consistently shown controlling behaviour, and gotten into altercations with others, is the respondent.

[325] Viewed in their totality, many of the alleged incidents, though admittedly quite serious and disturbing, are mostly historical in nature. The only attenuating circumstance is that the parties are no longer together, and most of the alleged incidents occurred before M. was born, or before she turned three years old. Based on Dr. Harris’ and Ms. Blakeley’s assessments on early childhood memory, M. would more than likely not have little, if any, memory of the incidents.

[326] Dr. Harris says that M. may be in need of protection from the respondent, rather than from the applicant.

[327] The respondent repeatedly contacted TPS after her initial contact. At trial, the respondent testified that she was only contacting the investigating officer in charge of the case to update them. The chronology below indicates that the police complaints started the date of separation. Her friend, Mr. Zagala, called the police on December 28, 2021. The applicant says the respondent had the friend call the police. Mr. Zagala did not testify at trial. Her friend, Ms. Mestanza, went to the police in 2022, after charges were dropped against the applicant.

[328] The charges laid in December 2021 against the applicant were withdrawn by the Crown in October 2022. Four months after the Crown withdrew the charges, the respondent emailed the police to report 38 additional allegations or incidents which took place between 2006 and December 2021, and related to a range of complaints from assaults to threats, and to property damage, among other things. The summary below tells only a partial story. When the dates for various court attendance, court orders, and supervising visits are combined with the chronology of charges, and the timing of the CAS referrals (Appendix A), the picture that emerges is that the respondent involved various authorities to gain a tactical advantage, as discussed more fully below. In repeatedly alleging family violence to various authorities and professionals involved in the case, the respondent herself was engaging in coercive and controlling behaviour, which would meet the definition of family violence under s. 2(1) of the Act.

[329] The charges are summarized in the chart below. At least 35 police officers were involved.

Date

Nature of the Charges

Date of Commission of Acts

December 28-29, 2021

Toronto police called to matrimonial home by John Zagala, friend of Respondent.

Applicant removed from home, arrested, and charged:

1. Assault

2. Assault

3. Assault

4. Assault

5. Assault

6. Utter death threats

7. Sometime between 2008 and 2010

8. Sometime in 2009 January 1, 2009 to December 31, 2009

9. Sometime between 2011 and 2014

10. Sometime in November 2021

11. December 5, 2021

12. Sometime between 2008 and December 28, 2021

March 3, 2022

Respondent calls police to allege further abuses.

May 9, 2022

Respondent emails police alleging further abuses from May-October 2021.

May 16, 2022

Respondent emails police alleging further abuses from December 2012, 2011-2013.

May 21, 2022

Respondent emails police alleging further abuses from 2012-2014, November 8, 2021.

June 6, 2022

Respondent calls police to allege further abuses from 2006-2009, 2019-2020, February 25, 2020.

July 4, 2022

Respondent emails police alleging further abuses from December 5-6, 2021, February 25, 2020, February 207, 2006-2009, April-December 2017.

July 28, 2022

Following charges added:

7. Assault with a weapon

8. Assault with a weapon

9. Assault

10. Assault

11. Sometime between 2006 and 2009

12. Sometime in February 2017

13. Sometime between 2019 and 2020

14. February 25, 2020

August 17, 2022

Respondent forwards to police an email she sent herself on December 28, 2012, a date on which she alleges Applicant assaulted her.

September 22, 2022

Respondent emails police alleging further abuses from 2006-2010.

October 5, 2022

Respondent called police to report assault of child between September and November 2021.

October 2022

Crown requests withdrawal of 10 charges, above.

February 21, 2023

Respondent emailed police 38 additional allegations of assault, threats, property damage, etc. ranging from 2006 to December 2021.

June 6, 2023

Respondent reports assault by Applicant to police from October 2020.

September 15, 2023

Applicant charged with one count of criminal assault.

Sometime in/around October 2020.

(b) Whether there is a pattern of coercive and controlling behaviour in relation to a family member

[330] The court must take into consideration whether there is a pattern of coercive and controlling behaviour in relation to a family member.

[331] The police notes indicate that the respondent claimed that she had been physically and emotionally abused since 2008, and “the reason she called the Police now was that she was noticing a shift in abuse from not just her, but to her daughter.” One police note reads:

[Respondent] discussed that [applicant] has full control of her life, her friends, her apps on her phone, her leaving the house, M [xx] having friends, going to the doctor, her finances, and everything about who she is. [Respondent] explained that she is not allowed to leave the house unless he is there. She said that she is not allowed to have access to any social media apps to connect with friends because he gets jealous.

[332] At trial, the respondent said that the applicant controlled her transportation, socialization, and her movements. As indicated above, her friends testified to having frequent communication with her, weekly contact in the case of Mr. Krause, and using apps to communicate. The respondent’s friends testified to communicating with her through texting and phoning each other. Mr. Krause testified that the respondent would also go grocery shopping and speak to him. There is no indication from either of her friends that the applicant accompanied her on these jaunts or was with her while she and Mr. Krause had their weekly conversations. From Ms. Nady’s evidence, she and the respondent were in regular contact in her leading re-examination question, Mr. Krause suggested that the respondent would drive to the grocery store. Dr. Harris noted in her report that despite alleging that the applicant “used social isolation as a coercive control tactic, Ms. Y[xx] has remained relatively socially isolated since separation. Relationships with her family remain strained, she has few friends.” None of the friends who testified at trial have met M. in person despite more than three years elapsing since the parties separated.

[333] Moreover, Dr. Harris indicated in her report that “while I can understand and even agree with the verification of domestic violence made by the CAS, there are problems with the domestic violence narrative.” Dr. Harris went on to state:

Further to Mr. Y[xxx] counter claims, Ms. Y[xxx]’s narrative is difficult to follow. Police and CAS have expressed concerns about inconsistencies. Many professionals have also noted concerns about tendencies to make repeated allegations and to continuously report new allegations. To illustrate this point, Ms. Y[xxx] reported throughout the assessment that she was entirely socially isolated and that Mr. Y[xxx] prevented her from communicating with others. However, she also reported that she kept in touch with friends so that if she was silent for a week, these friends would be concerned.

[334] The respondent’s evidence of the applicant’s control over every aspect of her life was belied by the following:

• The respondent says that the applicant did not want her to work. She was in the workforce for many years before 2018, holding top positions, including acting as department head, and managing a team of people. By her own evidence, she also worked for the applicant’s company for a few years. The applicant also contends that the respondent ran an online cosmetic business from home. Mr. Krofchick has not reviewed any documents related to that business though, she says it is a subsidiary of the applicant’s business.

• There is evidence of the applicant forwarding many job opportunities to the respondent; she has not denied this.

• It was the applicant who had to take a polygraph to prove his fidelity in 2020.

• The respondent says the applicant controlled her phone, changing the password so she could not speak to people. She told the police that the applicant controlled her apps on her phone. However, the evidence before the court indicates that she maintained a relationship with Mr. Krause since 2014. The two have been in communication on a weekly basis, initiating conversations by text message in advance, with the same frequency as before the separation. She would often say she has to go a private area or the grocery store. On the other hand, the respondent’s evidence is that after Mr. Krause moved to the United States in 2014, they stayed in “infrequent contact” and “did speak occasionally.” The frequency of the calls, and the ability for the respondent to travel freely to the grocery store, when her evidence is that she was closely monitored, are contradictory. The court found Mr. Krause to be a more credible witness.

• Ms. Nady said she connected the respondent with information about someone who had a child of similar age for a play date, either around COVID 2020, or more recently in 2022.

• Ms. Nady said that she frequently visits Toronto, and she would have met up with the respondent more often if the applicant had not been “so controlling all the time”. At the time of the trial, the parties had been separated for three years, yet Ms. Nady had still not met up with the respondent. She admitted she has never met M.

• The respondent’s friend, Ms. Mestanza, has never met M., even though by the time of the trial, the parties had been separated for over three years.

[335] Various professionals have used the adjective “controlling” in relation to the respondent’s actions and behaviour. She attempted to influence what went in the CAS notes and the supervising notes. Even after Dr. Harris completed her report, the respondent contacted her.

[336] The respondent’s controlling behaviour is evident in relation to her daughter, which predates the separation, and extended to the controlling the conduct of the applicant’s parents.

[337] The extent of the respondent’s coercive control, as disclosed by the evidence, extends to the numerous reports about the applicant to the police, the arming of her daughter with statements to relay to professionals with a duty to report so that CAS would re-open its file if closed at the time, involving her friends in filing reports to the police, attempting to get CAS and the child’s therapist to advocate against the applicant having any parenting time, successfully engaging in all manners of conduct to ensure that the applicant would not exercise his parenting time (including accusing his parents of abuse after they offered to facilitate the parenting), and throughout the litigation, ignoring every single court order which attempted to address her conduct, without success.

[338] The following are some examples of the respondent’s coercive and controlling behaviour:

i. The respondent sent detailed rules (Appendix C) to M’s grandparents, directing them in every facet of their dealings with M. when babysitting her.

ii. In 2020, the respondent made the applicant take a polygraph test to prove his fidelity.

iii. The applicant was isolated from his friends, family, and church family, and started to reconnect with his community after separation. The respondent has not seen friends and family members since her separation.

iv. The respondent homeschools M. According to Dr. Harris, until recently, even three years after the separation, M. could not name a single friend.

v. Professionals have indicated that the respondent’s relationship towards her daughter indicates restrictive gate keeping. The two co-sleep. M. is homeschooled.

vi. The respondent got into a dispute with a CAS worker when she interjected herself on a private interview with M. In the notes, the CAS worker indicated experiencing some discomfort at the exchange with the respondent. The respondent confronted the CAS worker in front of M.

vii. The respondent got into a verbal altercation with a Renew Supervisor, in front of M., and made the supervisor feel unsafe. The respondent tried to grab a receipt from her hand. In September 2022, Renew Supervision Services also issued a Warning Letter for Workplace Violence and Harassment to the respondent.

viii. The respondent threatened to complain to a CAS worker when CAS declined to verify sexual abuse.

ix. One of the supervisors from the Supervising Services indicated that she was trying to control what was in her notes.

x. The respondent disobeyed court orders to comply with the directions of the supervisors to facilitate parenting time with the applicant.

xi. The respondent refused to follow the directions of the staff at the supervising centres.

xii. Since the order of Czutrin J., directing that the respondent remain in her vehicle at the supervising visits, she has refused to provide her consent to Brayden speaking with M.’s therapist to facilitate setting up more parenting time for the applicant, effectively putting an end to his parenting visits.

xiii. The respondent has disobeyed 9 parenting orders.

xiv. The CAS file indicates that the respondent accused the applicant’s parents of abuse when they expressed a willingness to facilitate parenting visits.

Allegations of sexual abuse against M.

[339] After the applicant was arrested for assault and left the matrimonial home, over the course of the ensuing months, the respondent disclosed to various authorities, including TPS, that M. disclosed that the applicant had sexually abused M. The respondent disclosed that she herself had witnessed instances of sexual abuse, sexual grooming behavior, and many sexualized statements to M.

[340] The respondent deposed that on January 4, 2022, M. disclosed to CAS that the applicant “often sexually assaulted her.” The respondent said that the following day, January 5, 2022, M. made further disclosure to the police about the “sexual assaults.” The respondent said that M. has disclosed “many times” to the CAS, to Access Supervisors, her therapist, her family doctor, and to others, about the abuses and social restrictions she experienced, and that she does not feel safe around the applicant. In the respondent’s sworn affidavit, which was sworn in opposition to the contempt motion, which the applicant also relies upon, the respondent deposed that M. made disclosures to her on December 28, 2021, which is the day the applicant was arrested.

[341] On cross examination by the respondent, Dr. Harris indicated that she did not include safety planning as part of her report, because the risks were not at that level at the time of the assessment.

[342] The various investigations by TPS, CAS, and CYAC indicate that the respondent reported the following incidents:

i. In or around 2019, she respondent reported: “I observed [the applicant] say ‘that’s for daddy’ in an aggressive voice while he wiped M[xxx]’s vagina.”

ii. The respondent reported that she heard the applicant state, “I like to watch her,” when M. showered or bathed.

iii. The respondent reported that she witnessed the applicant’s “unnecessary and prolonged exposure of his genitals to M[xxx].”

iv. The respondent reported that she witnessed the applicant’s “sexual arousal (erections) from seeing M[xxx] in a complete or partial state of undress from when M[xxx] was a baby.”

v. The respondent reported that when they had sex, the applicant would call her by her daughter’s name; she reported that he called her “my beautiful M[xxx]” when they had sex.

vi. She reported that M. told her that the applicant “hurt her privates” by putting his finger in her privates.

[343] Specifically, the CAS file notes the following allegations made by the respondent in relation to the sexual abuse reports:

a. “Sometime when M[xxx] was 2 or 3, he took her to the bathroom downstairs and it was taking a while, so she went to check on what was going on, the door was open and he [sic] her [sic] say “this is for dad”;

b. “When M[xxx] would use the bathroom, he would get aroused by it”, he would try to hid [sic] it and curl into a ball and go back. When she was very young, he would sit on the toilet and say, “I like to watch”;

c. “[Applicant] got sexually aroused, when he would see M[xxx] run around naked.”

[344] The applicant says he did not have complete control over his daughter’s hygiene, and that he was never alone with her. When M. was interviewed by CAS after the abuse allegations were raised, she indicated that she was never alone with her dad and was always with her mom.

(c) Whether the family violence is directed toward the child, or the child is directly or indirectly exposed to it

[345] Under s. 16(c) of the Divorce Act, the court is required to consider whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence.

[346] The respondent alleges that the applicant’s violence has been directed towards M. and also contend that M. has witnessed violence. The follows are some of those reports:

• The respondent said that in 2017, the applicant confined her and M. to a bedroom and threw furniture and objects at a standing mirror which shattered. M. was less than a year old at the time.

• The respondent said that in February of 2020, she was sleeping with M., and the applicant ripped blankets off, kicked her repetitively, and was swearing at her. M. would have been approaching three years old at the time.

• The respondent said that in or around 2020, the applicant barricaded her and M. and refused to allow them to shower or bathe M. for three days.

• The respondent said that during 2017 to 2021, the applicant trapped her and M. in a room with a crossbow and wanted to be reassured that she would not leave him.

• The respondent said that the applicant locked her and M. in the car and in the garage many times in the past.

• The respondent reported the following regarding an incident that occurred in or around December 2021: “I observed [the applicant] wrap his arm around M[xxx]’s neck, squeezed tight, and rolled her from side-to-side on the floor.” According to her evidence, M.’s “face was contorted in pain,” and she was “making gasping sounds consistent with partial airway blockage.”

[347] The court is satisfied that M. was present when the encounters took place between her parents.

(d) The physical, emotional and psychological harm of risk of harm to the child

[348] Under s. 16(d) of the Act, the court is required to consider the physical, emotional, and psychological harm or risk of harm to the child.

[349] While the fact that the parties are no longer together is an attenuating circumstance, there is conduct on the part of the respondent which places M. at risk of psychological harm. The respondent has ignored M.’s pediatrician about not exposing M. to statements about the applicant. The respondent has ignored the advice of the professionals, as discussed above. The respondent insists that M. needs trauma informed therapy. She has exposed M. to adult situations, and has, on the evidence, forced her to choose between her mother or her father. The respondent has no insight on the emotional and psychological harm being caused by her actions.

[350] The respondent does not acknowledge that she perpetrated any violence. However, the professionals have defined what she is doing to M. as “child abuse.” While the respondent has told authorities and professionals that on several occasions she witnessed the applicant’s sexual abuse of M., this is contrary to what she initially stated to authorities. At the trial, she testified that she experienced, as well as witnessed, the applicant’s abuse over the years. This is inconsistent with what she has told authorities.

[351] The respondent has provided different dates for when she found out about the alleged abuse of M. She initially indicated that she did not witness any incidents of abuse; however, in the ensuing months, when the litigation was underway, the respondent provided more and more details of abuse. Though she now says that she witnessed the abuse, she has also said that M. disclosed her experiences of abuse on January 4, 2022. On the contrary, in the respondent’s trial affidavit, she deposed that on December 26, 2021, two days before the applicant’s arrest, the applicant “woke me up at night by putting his hand around my neck, squeezing my neck and whispering at me it was my fault for what he was doing to M[xxx]”.

[352] The respondent deposed in her affidavit that on December 23, 2021, the applicant hurt or injured M.’s ribs. She said that M. told her that “Dad made them hurt.” She deposed that she lifted M.’s shirt and noticed redness on either side of her ribs, which persisted. This account is different from the account given to the police, wherein the respondent apparently told the police that M. was not able to explain what happened to her, and that she lifted the shirt and did not notice anything. The respondent told the police that she assumed it was the applicant who was responsible. On cross-examination, the respondent could not explain the discrepancy between the two accounts.

[353] As noted by Dr. Harris, if the respondent did witness repeated sexual abuse of her daughter, this would implicate her in the alleged abuse for failing to protect her child. The court agrees with Dr. Harris. Until the respondent has some insight into how harmful the reality is that she has created, which the court believes is to further her own goals of severing the M.’s relationship with her father, then undoubtedly, the respondent’s ability to consider what is in the best interest of M. will be severely impaired. For example, the respondent has not addressed the long-term consequences for M. of having to reject her father in the event of a therapeutic goodbye.

[354] The following are some of examples of the respondent’s conduct that has created a harmful reality for M.:

• Dr. Harris says that certain behaviours by the respondent mother raises child protection concerns, and that court supervision may be warranted. Ms. Blakeley acknowledged that she told Dr. Harris that in M.’s mind, the events happened to her.

• As the professionals have pointed out, M.’s recollection of her father is that he has abused her and her mother. As M.’s therapist, Ms. Blakeley stated that the allegations, whether true or not, have become M.’s truth, such that she believes this happened to her.

• M. has been subjected to interviews with CAS, CYAC, the police, and Dr. Blakeley because of the allegations of sexual abuse made by the respondent.

• Despite being repeatedly told by professionals not to speak about certain subjects in M.’s presence, the respondent simply ignores these warnings.

• The respondent got into a verbal altercation with Renew staff in M.’s presence. The staff person feared for they safety.

• The respondent engaged in a verbal altercation with CAS staff in M.’s presence.

[355] The court agrees with the applicant that the respondent’s allegations have resulted in M. being subjected to multiple invasive interviews by CAS, the police, and other authorities.

(e) Any compromise to the safety of the child or other family member

[356] While s. 16(e) of the Divorce Act instruct that the court shall consider any compromise to the safety of the child or other family member. Although the respondent repeatedly says that her actions are motivated by her concern for M.’s safety, she has shown little regard for M.’s emotional wellbeing (for example, by disputing with others in M.’s presence). In S. v. A., 2021 ONSC 5976, 61 R.F.L. (8th) 45, at para. 25, McGee J. indicated: “No conduct by a caregiving parent that deliberately undermines a child’s sense of safety or self should be sanctioned or permitted to continue.” In that case, at para. 26, McGee J. found that the post-separation behaviour of the mother, which prevented the children from having separate feelings from her own, threatening their sense of self and security, constituted family violence.

(f) Whether the family violence causes the child or other family member to fear for their own safety or for that of another person

[357] Section 16(f) of the Act instructs that the court consider whether the family violence causes the child or other family member to fear for their own safety or for that of another person. The respondent repeatedly says that she and M. are “terrified” of the applicant. A safety plan was put in place to mitigate against any physical or emotional harm to M. It was anticipated that with supervised visits, the applicant could maintain contact with M., and the relationship would be monitored to ensure safety. However, the respondent has disobeyed every court order. For the sole supervised visit that did occur, M. warmed up to the applicant within 15 minutes after not seeing him for a year and a half. M. did not show any terror. The various supervisors testified that when M. repeated the same statements over and over again, she did not demonstrate that she was in distress.

(g) Steps taken by the person engaging in family violence to prevent further family violence and improve their ability to care for and meet the needs of the child

[358] Under s. 16(g) of the Act, the court shall consider any steps taken by the individual engaged in family violence to improve their ability to care for and meet the needs of the child. The respondent says that she is in therapy. The applicant has taken part in the Partner Assault Response Program and has worked with two therapists. Dr. Harris indicated that the Caring Dad’s program is available for the parties.

(h) Any other relevant factor

[359] Under s.16(h) of the Act, the court shall consider any other relevant factor. In this case, the court considers the applicant’s argument that the respondent coached M. to make the sexual abuse allegations. The court also consider his argument of parental alienation.

Coaching

[360] There is ample evidence to support the applicant’s position that the respondent mother has been coaching M. to make statements and to resist parenting visits. CAS indicated that there was coaching. Ms. Blakeley says there were red flags, though she could not confirm coaching. M. has made statements that are not consistent with what a child her age might say. A number of professionals described M.’s demeanor when she was making a disclosure; they noted that she was looking at her mother or not looking at the doctor and that she was speaking without any affect, behaviours which suggest coaching. After speaking with a professional, M. will run to her mother to snuggle up and tell her she has told an individual a particular piece of information.

[361] M. was interviewed by several individuals to address the inconsistencies with the interviews with respect to the allegations of sexual abuse. The CAS file noted that “there are too many inconsistencies in M[xxx]’s interviews to be able to verify allegations of sexual abuse.” CAS’s findings are not binding on the court.

[362] The court, on a balance of probabilities, finds that the respondent coached M. to make statements to individuals with a duty to report, and thereafter, reinforced the statements before supervising parenting visits with the applicant or interviews with authorities. The court acknowledges the following evidence that supports a finding of coaching:

• The respondent was observed by CAS staff to be in an area where M. was looking off to while M. was being interviewed.

• The allegations of abuse were routinely made by M. to individuals who had a duty to report. During the respondent’s cross-examination of the various individuals from the supervising facilities and CAS staff, the respondent obtained these admissions. The CAS notes indicate that it was often difficult to connect with the respondent to schedule home visits, despite the seriousness of the allegations.

• A CAS staff indicated in her notes that the respondent was coaching M. Based on the notes, the evidence for the staff to arrive at this conclusion included that the child kept looking to where the respondent was. The respondent also interrupted the interview at a delicate point, and challenged the CAS staff about the questioning of M., in front of M., despite the staff’s request that the conversation not take place in front of M.

• The respondent spoke about matters in front of M. when instructed by CAS staff to not do so.

• Examples of coaching are expressed or implicit in CAS records. For example, Ms. Henry at CAS had a call with a Brayden Supervisor on March 8, 2023. The CAS note indicates:

Each week M[xxx] is still saying that Mr. Y[xxx] has hurt her.

A couple of times supervisors have asked questions that complete [sic] stomped M[xxx] and she looked to Mrs. Y[xxx] for an answer. The next time she comes to access M[xxx] has the answer….

• A CAS note which recorded a conversation with a Brayden supervisor on June 11, 2023, reads:

Mrs. Y[xxx] was asked to stay outside of the access room, and it was Mrs. Y[xxx] that had a problem with being away from M[xxx]…By the end of the visit there [sic] were sitting next to each other watching Paw patrol. Mr. Y[xxx] asked M[xxx] for a hug, and she said no. he asked for a high five and she said yes. The question is how much of this is M[xxx]’s memory and how much of this is put into her mouth. Mrs. Y[xxx] says all the right things…

• The CAS records indicate that the respondent was reporting incidents of sexual abuse or grooming behaviour that occurred as early as when M. was two years old. Her reporting indicated that she herself witnessed it. However, when Dr. Harris reviewed the research on children, she found that recall of events prior to age three are highly unreliable. Dr. Harris also indicated that any memories that a person has of events prior to age three are more likely due to family re-telling and conversations. In the report, Dr. Harris noted that the respondent was quite vague on the timelines for the sexual abuse allegations, and when challenged, the respondent appeared to adjust the timelines, to make the events occur more recent. For example, the respondent said that the most recent sexual abuse occurred when M. was 4 years old, prior to December 2021.

• Dr. Harris advised that direct and misleading questions can negatively impact the accuracy of memories, and although the respondent was instructed not to talk with M. about the allegations until the investigation was completed, she had in fact acknowledged that she repeatedly interviewed and questioned M. about events. The respondent has not denied this.

• The respondent interrupted interviews with M.

• The respondent disobeyed court orders to remain in her vehicle for hand-off to the staff for supervised visits.

• Dr. Harris’ comments are instructive about the research on memory in small children, the unlikelihood of M. recalling more abuse details with the passage of time, and that it was more likely that M. was repeating statements made by her mom.

• The respondent reported incidents with more elaborate details, telling Dr. Harris that M. was recalling more and more incidents and details with the passage of time. Dr. Harris noted this was not consistent with the literature on how memory works through early development, and that it was more likely that M. was repeating statements made by her mom. Dr. Harris stated in her report that:

Aside from problems with memory encoding and consolidation in the early years, people also forget more and more information over time, and this trend in forgetting is particularly pronounced in young children.

• As credibility is also part of the assessment, the court notes that at trial, the respondent testified that when M. said the applicant hurt her private – M. was at the latter part of five or early part of six years old. In the court’s assessment, this is inconsistent with other statements the respondent has made. It appears to the court that the respondent may have changed the statement in order to adhere to Dr. Harris’ s. 30 report, which addressed the memory of children in early childhood. Dr. Harris in fact also noted the respondent’s changing timeline. The evidence is also not credible because the applicant left the matrimonial home on December 28, 2021, and has never returned. At the time, M. was only four and a half years old.

• Dr. Harris notes that M. has made comments that are inconsistent with those of children her age about why she does not want to see the applicant.

(i) Ms. Blakeley’s concerns

[363] Ms. Blakeley, M.’s treating therapist, also raised concerns about coaching. At trial, she acknowledged commenting to Dr. Haroon that it was possible that coaching was occurring and that it was also possible that coaching had occurred, but she could not confirm or deny either possibility. She stated: “I did say that it’s interesting that M[xxx] will tell Ms. Y[xxx], her mother, very quickly after session, that she told me information that had occurred between her and her father. She noted M. will bring up the abuse in the last few minutes of as session and that she will then leave the session and tell the respondent: “I told Jessica what dad did to me”, citing this is a red flag for her.

[364] At trial, Ms. Blakeley acknowledged that the applicant shared his concerns that the respondent was coaching M., who is sharing things that apparently happened when she was two or three years old. At trial, Ms. Blakeley agreed with questioning that she shared the following with Dr. Harris:

[A]t that age, children typically usually do not remember; we need language to code memories. We do not have the vocabulary to code the memories. We need memories to remember the details.

(ii) Clinical notes and records of pediatrician

[365] As part of her assessment, Dr. Harris reviewed the clinical notes and records of M.’s pediatrician, Dr. Naya Rizk. Neither party challenged the accuracy of Dr. Harris’ report as to the information contained in the notes. Neither party called Dr. Rizk as a witness. The report indicates that M. was seen for baby checks and was noted to be meeting her milestones. She was periodically seen for cold symptoms, dermatitis, mild abdominal pain, and vaccination.

[366] In April 2022, Dr. Rizk instructed the respondent not to expose M. to her stories about the applicant. The evidence before the court indicates that the respondent did not comply with the advice of the pediatrician.

[367] On August 23,