COURT FILE NO.: FC-21-158

DATE: 2024/02/01

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

Tina Lauzon, Applicant (herein Tina)

AND:

Colby Benedict, Respondent (herein Colby)

BEFORE: The Honourable Mr. Justice Rick Leroy

COUNSEL: Emma Dupuis, Counsel for the Applicant

Penelope Gardner, Counsel for the Respondent

Gabrielle Beaulieu, OCL for the children

HEARD: October 16, 17, 18, 19. 20, 24, 25, 26, 27, 30, 31 and November 1, 2, 3, 6, 7, 8 and 9, 2023 and December 18, 2023

REASONS FOR JUDGMENT

Issues

[1] The issues for decision are the respondent father’s (Colby) parenting time and the Court’s views on counselling for the children, Cruz, born December 24, 2012 - (12) and Corbin, born January 27, 2016 – (8).

[2] As the result of mid-trial settlement discussions, the parties consented to a final order recorded in Justice Desormeau’s endorsement as follows:

1. The mother shall have sole decision-making responsibility regarding the children;
2. The children shall reside primarily with the mother;
3. The mother shall inform the paternal grandfather: Keith Benedict, regarding any major medical decisions, via email: XXXXXXXXXXXXXXXX. Keith shall communicate with the father, and may respond within 24 hours, limited to one email and limited to the content / specific information regarding the children, to set out the father’s views;
4. The children shall continue to be immersed in the Mohawk culture (including attending events in Akwesasne, reading etc.;
5. The children shall continue to attend Akwesasne Mohawk School (AMS) until graduation, and then CCVS;
6. Police enforcement;
7. The father shall not communicate with the mother directly or indirectly save for matters relating to paragraph 3, above;
8. The father has the right to obtain information from all of the children’s service providers and
9. On a separate order: A declaration is hereby made that Mr. Benedict is found to be father to Corbin and Cruz.

The following issues remain unresolved:

10. The father’s parenting time and/or holidays/ and/ or exchanges; and
11. Who the counsellor for the children might be – 3 sisters / central healing?

[3] My obligation, as trial judge, is to render judgment in the best interests of the children. That generally entails application of the instruction directed in section 24 of the Children’s Law Reform Act (CLRA) to the facts of this case. This is time-tested non-exhaustive guide. The analysis portion of these reasons follows the substance and structure of section 24. Rather than read the section into the record, it is attached to these reasons as Appendix A and should be considered as part of my reasons.

[4] This ruling is made without the benefit of submissions from Colby. The schedule agreed to by the parties provided for delivery of Colby’s written submissions on or before December 1st, 2023. Counsel was unable to secure instruction from Colby for release of submissions. It was then agreed that Colby would make oral submissions on December 18, 2023. Colby did not attend. That said, I have considered Colby’s evidence, argument and position adduced through the trial.

RULING

[5] My conclusions, after hearing testimony over three and one-half weeks and having read and considered the various affidavits filed and after reviewing the submissions delivered by counsel, are that a final order is to issue as follows:

1. Colby Benedict’s parenting time with Cruz and Corbin is suspended until further order of this court, based on material change in circumstances;
2. If the court in the future believes it is appropriate to resume a parenting time regimen for Colby with Cruz and Corbin this court recommends that all Colby’s parenting time be supervised initially, that reintroduction be incremental, beginning remotely, progressing to CYC or other reliable supervised access center and to more fulsome engagement.
3. Without in any way intending to limit the judicial independence of a future hearing justice, a material change in circumstances that may weigh in favour of the resumption of parenting time would be: i. The written report from a qualified therapist confirming the therapist has reviewed these reasons and discerned and enumerated the reasons for juridical concern regarding Colby’s ongoing interaction with Cruz and Corbin; and ii. The therapist has crafted and implemented the therapeutic strategy best suited to mitigate the effects of Colby’s traumatic life experiences; iii. Colby has undergone a mental health assessment (testing behavioural and cognitive functioning); iv. Colby acknowledges the hurt, loss, fear, anger and trauma he experiences and how those unresolved emotions have distorted his views regarding childcare and respectful adult relations, has engaged in therapy dedicated to mitigation of the behavioural implications and committed, with full particulars, to change; v. Colby has demonstrated, with full particulars, an understanding of the impact of his behaviour on the children and their mother; vi. Colby has actually honoured this order for a sustained period of time; and vii. Colby has completed a parenting course that addresses the impact of parental conflict and violence on children.
4. Such counselling as might be beneficial to Cruz and Corbin is to be directed at helping them safely re-set the dynamics of their relationship with their father and older brother and may be implemented, or not, within the exclusive decision-making duties assigned to the mother; and
5. There shall be a one-year restraining order prohibiting Colby from communication with Tina, Cruz and Corbin in any form whatsoever; and
6. There shall be a one-year restraining order prohibiting Colby from encroaching within a one-kilometer radius of Tina’s home, workplace, place of worship or any place she might reasonably be expected to be; and
7. Colby, whether personally or by agent is precluded from collecting either Cruz or Corbin or both from the AMS for any reason; and
8. Colby shall not remove either of Cruz Benedict born December 24, 2012 or Corbin Benedict born January 27, 2016 from the Province of Ontario; and
9. Tina may relocate with Cruz and Corbin within East Region without notice to Colby or his consent; and
10. Third parties involved with Cruz or Corbin shall not disclose their residential address to Colby; and
11. Colby to pay Tina’s costs fixed in the amount of $20,000;
12. Colby’s motion to change ought not to be constrained by unpaid costs;
13. Colby’s motion to change may be brought within a year if Colby has achieved the awareness aspired to in subparagraphs 1 – 3 hereof;
14. Colby has an obligation to pay child support to Tina for the support of Cruz and Corbin in accordance with the child support guidelines. Colby shall direct his father, Keith, to convey the full particulars of future employment to Tina within 10 days of commencement of such employment. Colby shall pay child support to Tina for the support of the children in accordance with the child support guidelines commencing on the 1st of the month following commencement of employment.

Reasons

Contextual Family Background

[5] Colby is 41. Notwithstanding the long history of domestic violence, Colby was emotionally distraught when Tina separated. Even though the relationship had become empty, they continued to present as family which was central to Colby’s dignity and sense of community standing. When Tina left his world turned upside down. He has yet to normalize the loss. The hurt evolved to anger. Unfortunately, that anger remains unresolved.

[6] Colby determined to control Tina notwithstanding the separation. Although they worked on a shared parenting time model for several months, Colby unilaterally removed Cruz and Corbin from Tina’s care and withheld them for six months beginning on March 15, 2021.

[7] Colby constructed and promoted a false reality unsupported by evidence concerning Tina. Colby repeats the same mantra to every third-party community resource who would listen. In his recitation Colby alleges that Tina is a practicing drug addict, she is abusive/neglectful toward Cruz and Corbin, she is active in the sex trade, she suffers from schizophrenia and that she got what she deserved during incidents of domestic violence in their home.

[8] Colby’s response when Tina started this proceeding was to take his concerns to the CAS for the United Counties of Stormont Dundas and Glengarry – herein CAS.

[9] In testimony, Colby lamented the loss of the only significant spousal relationship of his life for reasons he cannot understand. For that he blames Tina. He deflects responsibility for his part in the relationship breakdown.

[10] Colby’s behaviour drove the conflict in the file. Colby triggered multiple investigations into his assertions, all of which were conducted with diligence and refuted by reality.

[11] Colby’s responses when results were returned are consistent. He is blameless. He feels that the efforts of third-party community resources were biased, conspiratorial and incompetent. His resort to toxic ranting is the result of their provocation.

[12] Colby did not enjoy cross-examination. He laments his impression that he was being made out to be a monster. That he recognizes the impropriety of his actions and how they appear to others is a good first step.

[13] Colby experienced a difficult childhood. Colby’s mother passed when he was very young. His father, Keith was largely absent. Colby’s care derived from extended family and fostering. By grade 10, he was involved in tobacco smuggling. He said he was detained in the Brockville jail before trial for eight months during the 10th grade after a supply of Indigenous tobacco was found in his school desk. He recalls that he was convicted and sentenced to time served and a fine which remains unpaid. He remembers feelings of abandonment on release. He was alone in Cornwall with no one to go to. He said he drifted to his father’s home on the Island but that by then, his father had a new wife and family in a small home which was not a good fit.

[14] Tina is 40 years of age. Tina reported close family connections with her parents and siblings. She is particularly close with her sister, Lisa who provides daily help and support.

[15] Colby and Tina began cohabiting in Cornwall in 1998 when they were 15 and 16 respectively. Both were out of school. Tina returned to secondary school and, after graduation, attended post-secondary to obtain a personal support worker qualification. Her avocation now is as health care aid for the elderly.

[16] Tina undertook to assist Colby’s education hoping he would qualify for his general education diploma – GED. Initially she did the schoolwork for Colby. When they realized Colby would have to pass an in-class written examination he began to participate. With her assistance Colby obtained the GED.

[17] She supported them financially while he looked for work.

[18] Chase was born in March 2005 – now 18. Tina became a stay-at-home mother and primary parent. She acknowledged that Colby was a proud father but left child-care matters to Tina. She enrolled Chase in the Akwesasne Mohawk School (AMS) and exclusively looked after health and education issues.

[19] They moved residence to Cornwall Island in Akwesasne Mohawk Territory when Chase was 6 or 7. They immersed in Colby’s extended family. Colby’s work in the masonry field took him away from home from Sunday to Friday weekly for fifteen years.

[20] Cruz was born on December 24, 2012 – 12. Corbin was born January 27, 2016 – 8.

[21] Tina recalled that Colby was a good dad then. He took the boys fishing, swimming and 4-wheeling on Saturdays.

[22] There was foreshadowing of things to come. Tina acknowledged using cocaine once when Chase was very young. Colby’s response was to shove her face into a door breaking her nose. Colby was charged and convicted. She went to a woman’s shelter in North Dundas for 2 weeks until arrangements could be made for return to their home.

[23] Tina was diagnosed with lupus. Her doctor prescribed low dose oxycodone for pain. Colby found that unacceptable. Tina said the medication did not mitigate pain, so she did not renew the prescription. Nonetheless, it seems to be a cornerstone of Colby’s assertions of drug abuse and addiction.

[24] Tina said she felt isolated on the Island. Colby was gone through the workweek while she was home with three children without vehicle or phone. Their relationship failed. When Colby got home on Friday night arguments ensued. Colby exited to spend time with his extended family. Tina began to spend more time with her family.

[25] Colby expressed confusion over the relationship failure. He was doing his part. He had a good job, enough to support his family and to buy a Ram half-ton off the lot. He was proud to have a family. He does not understand what happened. Bill Roundpoint, a long-time friend and counsellor with Akwesasne Representation and Advocacy Program (ARAP) observed that Colby’s behaviour is driven by acute hurt, loss and anger of an unrequited first love.

[26] Colby noted the stigma from the limits imposed on his time with Cruz and Corbin he feels in his small community.

[27] The children witnessed the arguing. Tina reported violence including a punch that knocked her front teeth out, assault with a weapon – tire iron, a kick to her head with his work boot leaving a serious laceration which Tina and a neighbour sealed with Gorilla Glue. Colby did not acknowledge the details but noted that Tina would not stop complaining to the point where he could not self-regulate. He consistently maintained that Tina’s injuries from their conflict were her fault.

[28] In addition to the domestic violence witnessed by the children, Colby resorted to profane pejoratives such as calling her a dirty fucking junkie prostitute cunt. The violence often ended when Colby ordered Tina from the home with the words “Get the fuck out you dirty cunt”.

[29] The evidence is that notwithstanding release conditions precluding contact through the period of separation, Colby continues to repeatedly call Tina’s phone to berate, threaten and intimidate her. Cruz and Corbin are not oblivious to the calls and content. Their experiences over time inform the evolution of their views and preferences.

[30] By way of example, Colby acknowledged having sent the following message to Tina on the Sunday of Thanksgiving one week before start of trial. The recording can be heard at: https://1drv.ms/f/s!AowQ1YMhGTtggcQXCdTMwdQksk8XqQ?e=d5LLjm

Transcript: "You dirty selfish cunt, you couldn't let the kids go to the gravesite with us, you gonna have every fucking holiday, gotta have it your way eh, fucking piece of shit. Haven't you had it your way enough?".

[31] This conflict resulted in many short-term separations ending after Colby would co-opt Tina’s father into convincing Tina into reconciliation, refreshing the cycle many times.

[32] During a separation in 2019 when Tina was staying with her sister Lisa and Lisa’s spouse, Colby observed an unknown-to-him vehicle parked overnight in front of Lisa’s home. He presumed the worst and jealousy overtook him. He followed the brother-in-law’s vehicle to a nearby Tim Hortons early morning and while the brother in law’s vehicle was in the drive-through line up smashed the windshield, passenger side window and mirror with a tire iron. Colby was charged, convicted and made restitution after the brother-in-law explained innocent circumstances.

[33] Colby attracted more criminal convictions in October 2020 when he smashed a flowerpot at the front door of the home of Tina’s brother with the same tire iron after the occupants denied him entry.

[34] Tina acknowledged one time incident of cocaine use in 2020. She said it was a gift from a friend.

[35] Tina’s summary of drug use involves two casual individual incidents of cocaine consumption, separated by many years, the second while she was in the throes of her experiences with domestic violence and secondly the brief round of consumption of lupus related prescribed low dose oxycodone.

[36] The relationship ended for the final time in July 2020.

[37] If Tina had not left Colby, she risked formal intrusion by Akwesasne Child and Family Services (ACFS) and removal of Cruz and Corbin to a place of safety. As part of the background to this family the ACFS was entertaining protection proceedings due to concern for intense family conflict and domestic violence.

[38] Tina moved to Cornwall. Colby was initially contrite and even agreed to assist with her move. It went well until Colby, in Cruz’ presence, slit the bottom of her new mattress with a knife. Colby denied this. Other than that, they were outwardly making the best of the situation. From July 2020 until March 15, 2021, Tina cared for the boys during the school week and Colby on weekends.

[39] This compromise shrouded profound issues incapacitating the family and was doomed to fail.

[40] Until it became apparent that prospects for a child-focused agreement on parenting time were frustrated, Tina supported and encouraged the father children relationship and all it entails.

[41] I’ve recounted Colby’s experiences with third party community resources since mid-2021 in the paragraphs following to illustrate how intractable Colby is in this matter and to demonstrate the futility of abandoning Tina to her own resources in pursuit of a negotiated best-interests outcome for Cruz and Corbin.

Family Court proceedings

[42] On March 15, 2021, Chase, their oldest son, collected Cruz and Corbin from Tina in Cornwall, ostensibly for the purpose of attending a birthday party on the island. Colby withheld them from Tina for the next six months. Colby asserted that Tina abandoned them together with the recitation that Tina is an unfit mother. The evidence is otherwise. After Tina alone completed eleven affidavits, after sixteen interim appearances and eleven temporary orders, all of which Colby disregarded, the file arrived on the trial list.

[43] In her affidavit deposed May 26, 2021, Tina noted that her counsel, seeking to resume Tina’s parenting time, sent three letters to Colby on each of April 22, 2021, May 4, 2021, and May 18, 2021, without response. Colby acknowledged receipt of these letters to Tina. Deadlines were disregarded. Tina was investigated by the SD&G Children’s Aid Society (CAS) in relation to Colby’s allegations related to Tina’s use of drugs, child neglect and abuse. The CAS investigation confirmed there were no child protection concerns for the children in Tina’s care and the CAS advocated resumption of residence with Tina.

[44] Tina was compelled to bring an urgent motion. On June 16, 2021, with counsel, they agreed in principle to temporary minutes of settlement. Tina was to have supervised access at the Centre York Center (CYC) supervised access facility in Cornwall twice weekly and under the supervision of her sister Lisa once weekly.

[45] Colby declined to execute the minutes. By August 10, 2021, 2 months later, Colby had not taken steps to file a form 35.1 nor did he engage with the CYC.

[46] Tina was compelled to move for an order returnable August 13, 2021. That was granted together with authorization for review at the end of September. Tina had not seen the boys since March 15, 2021. Costs were fixed against Colby in the amount of $1,200. Not paid. Colby was ordered to make the necessary arrangements with the CYC that day. He did not. On September 12, 2021, he cancelled the scheduled visit citing intention to consult legal counsel.

[47] Colby was candid with the CAS – he was not going to voluntarily permit the children to reunite with or even visit Tina. He expressed the view that Tina should have to pay a price for leaving.

[48] The OCL order was issued on September 21, 2021.

[49] Through this period, Colby was subject to a no-contact order in respect to Tina derivative to the criminal charges arising from the Tim Hortons and flowerpot incidents. Colby breached repeatedly. He told Tina, by text dated September 29, 2021, that she would not see the boys again until all criminal charges were withdrawn. He included the usual pejoratives.

[50] Tina had been residing with her sister Lisa out of fear for her safety in light of Colby’s threats to same. Colby triggered a confrontation at Lisa’s home late in the evening of September 30, 2021.

[51] By October 10, 2021, there had been three parenting time visits. The York Center notes exude the love and trust the boys have for their mom. The contempt motion returnable October 22, 2021 was adjourned to November 12, 2021 at Colby’s request so he could deliver response materials.

[52] Colby cancelled visits beginning October 27, 2021, reporting Covid-related hiatus. Tina confirmed with the school that to be untrue.

[53] On November 12, 2021, before Justice Waters, Tina withdrew the contempt claim and they agreed to a parenting time schedule that allowed the boys to be with Tina beginning November 17, 2021, every Wednesday from school to 7:00 p.m. and every Friday from school to Saturday at 3:00 p.m., exchanges at the Island gas bar.

[54] It seemed like a reasonable stop gap temporary order except that Colby withheld the boys from school on Wednesdays and Fridays. The boys were absent 62 days each for reasons unrelated to the pandemic or Indigenous spiritual days. The report cards note that, but for extensive absenteeism, Cruz and Corbin are curious and committed students with good academic potential.

[55] When Ms. Savoia interviewed Colby, she observed that Colby was oblivious to the impact of so much absenteeism on Cruz and Corbin’s academic performance in school and their marks.

[56] Tina brought an urgent motion to redress the situation returnable February 22, 2022, adjourned to February 28, 2022. Justice Desormeau determined that Colby was deliberately in contempt of the Waters order by withholding the boys from school on Wednesdays and Fridays to thwart time between the boys and their mom. She extended the weekend parenting time from Saturday at 3 to Monday at school. Police enforcement was ordered through to August 28, 2022, and the costs issue adjourned to April 14, 2022.

[57] During the next interval, Colby thwarted police enforcement by removing the boys to the American side of the Island and alluded to a possible relocation out of jurisdiction.

[58] Friday, May 20, 2022 was illustrative. This was a scheduled exchange day from Colby to Tina. Unknown to either parent, OCL counsel and Ms. Savoia were interviewing Cruz and Corbin at school on zoom that afternoon. Chase and Keith Benedict – Colby’s father went to the school and attempted to remove the boys to thwart the scheduled exchange to Mom’s care at school end.

[59] This was not atypical. Colby depicted their role as protectors and cited how the boys pleaded with him to intervene, so they did not have to go to Tina’s that weekend. OCL concluded that Colby provoked the incident that morning when he told the boys before school they were not going to their mothers after school. OCL asked the principal to ensure the boys went with their mother. The school was placed on lockdown and the Benedicts were asked to leave. The principal arranged for the boys to leave with their mother by the back door. The Benedicts took umbrage. Keith filed a grievance with the school board which after two unsuccessful hearings was dismissed.

[60] Colby’s reactions when he perceives having been foiled is to attack with toxic vitriol. With the school, Colby crossed a line when he threatened the principal. As the result the principal took defensive measures, and the board issued a notice to Colby under the Trespass to Property Act. He is not allowed access to school property.

[61] OCL counsel wrote to Colby following this incident beseeching him to normalize.

[62] Colby refused to cooperate with exchanges. In testimony he explained that he assured Cruz and Corbin he supported parenting time with Tina so long as they would be safe in her care; however, as in his view, they were unsafe in her care he did not support exchanges and parenting time with Tina.

[63] Cruz and Corbin were exposed to repeated police enforcement experiences. Tina sought police enforcement 16 times to the point the Akwesasne Mohawk Police Services (AMPS) asked her to make other arrangements. Colby ensured the boys were seldom at school on the scheduled exchange days. Each police intervention involved a standoff on the Benedict property with profane yelling consuming at least 2 hours and sometimes longer. It meant that Wednesday evening parenting time was compromised to the point of disappearance.

[64] On May 27, 2022, Justice Desormeau endorsed an order restraining Colby from removing the boys from Ontario without a Court order or notarized consent from Tina. Police enforcement was extended to November 26, 2022. Costs of that motion were fixed on June 14, 2022, in the amount of $2500 – unpaid.

[65] Colby continued to breach in the month following.

[66] On July 17, 2022, this Court ordered that the boys were to reside with Tina for an uninterrupted period of three weeks to be followed by week-about routine. It is noted that Tina sent the boys to participate in a funeral ceremony with their father during the initial three-week placement in her care.

[67] The week-about routine was briefly suspended on the direction of ACFS CPW Mitchell on October 29, 2022, after allegations were made and apparently verified by Cruz and Corbin during interviews with the OCL and ACFS. Tina reluctantly complied. She did not wish to aggravate the situation.

[68] The circumstance was that Cruz and Corbin observed a Ram 1500 with markings unique to Colby’s truck swerve into the path of the brother-in-law’s vehicle as it returned from the exchange point at the gas bar. The occupants included Tina, the brother-in-law, Lisa and the two boys. OCL thought the incident sufficiently serious to report to child protection on the island. CPW Mitchell believed the children’s reporting in separate interviews. He noted that the boys were much distressed and confused by the incident. They could not understand why their Bubba would do that. Mitchell recorded how Cruz recounted an incident as passenger in his father’s truck when Colby ran another person with whom he was having issues off the road. Colby’s parenting time was reinstated on November 12, 2022.

[69] Colby then unilaterally withheld the boys from Tina at the end of the first week citing the same recitation of drug use, neglect and abuse of the boys. That prompted another motion returnable December 16, 2022. CAS and ACFS again did their diligence and did not verify Colby’s assertions. Both confirmed that there were no protection concerns in Tina’s home. Justice Desormeau extended the police enforcement term for twelve months and assessed costs against Colby fixed in the amount of $1,000 – unpaid.

[70] The Court addressed the file on June 8, 2023/September 6, 2023. The latest disturbing incident involved the same brother-in-law. He was in Massena New York with Cruz and stepson to collect a part he ordered through the local hardware store. He parked out front. He and the boys entered the store long enough to process the purchase. In that brief interlude, someone slashed the two rear tires of his vehicle putting the brother-in-law to considerable expense and inconvenience. The authorities were able to secure recorded video surveillance capturing the slashing event. Cruz and brother-in-law identified the perpetrator as Colby. At trial it was confirmed that Colby is facing charges in New York state in relation to this matter.

[71] As might be expected, Cruz is confused and frightened by this incident. Whether Colby is convicted or acquitted Cruz believes Colby slashed the tires.

[72] Although Colby has not been convicted, there is a pattern of disregard for societal norms very concerning to the Court and, if this is his work, it represents a significant escalation in acting out anti-social misconduct. Having regard to the risk to Cruz’ emotional health, Justice Desormeau suspended Colby’s parenting time, extended the police enforcement order indefinitely and prohibited Colby from going to the AMS. Akwesasne Representation and Advocacy Program (ARAP) paid for the installation of a full security system in Tina’s home.

[73] Ms. Savoia, as OCL social worker, expressed concern for the safety, security and emotional well-being of the children.

[74] Although less of a safety issue and more of an attempt at coercive control Ms. Savoia observed that Colby withheld Cruz and Corbin’s prescribed glasses when Cruz and Corbin were returned to Tina. Not a deal breaker on its own rather an indicator along with everything else of disregard for Tina’s and the boys’ sensibilities.

[75] Ms. Savoia noted that both Cruz and Corbin independently disclosed that Colby threatened more than once to kill Tina. Both are fearful of a home invasion and forcible removal.

Colby and third-party community resources

[76] Colby is a member of the Mohawk of Akwesasne. He was capably represented by legal counsel through the trial. That said, recognizing how difficult family court trial can be, before opening statements, the Court offered Colby opportunity of soliciting a community elder, a close friend, family member or a trusted counsellor or anyone who might be able to put into plain words the reasons driving our court process to sit with him through the trial. That offer was never withdrawn. Colby did not exercise that option.

[77] The evidence adduced through the trial illuminated the reason. As will be explained, over the last eighteen months Colby alienated likely advisors. For example, the ARAP, whose role is to advocate for the Indigenous community of which Colby is a member, issued a Notice under the Trespass To Property Act precluding Colby’s attendance on its property after confrontation with him.

The Criminal Justice System

[78] Colby was sentenced in Ontario Court on December 22, 2022, in relation to the “flowerpot” incident at the home of Tina’s brother July 29, 2020, for three counts of escape and failure to comply with bail terms arising from incidents on September 24, 2020, and July 29, 2021 to probation for twelve months. One term included a contact prohibition in relation to Tina. He was sentenced on July 7, 2023, to another twelve-month probationary order in relation to breach of an outstanding no-contact undertaking on June 17, 2021. This probation order precluded contact with Tina for a further twelve months through to July 23, 2024.

[79] As noted, Colby is charged in New York State for the tire slash incident in Massena this past summer. There is no further information.

[80] This trial had to be pushed back one day because Colby had been arrested and detained on multiple breach charges in Ontario. The processing of those charges is at the early stages.

Stormont Dundas and Glengarry Children’s Aid Society (CAS)

[81] There are two child protection agencies involved. The CAS has exclusive jurisdiction over child protection matters in its territory. Protection concerns regarding Tina’s parenting are investigated by CAS. When children are Indigenous, the CAS will, by law and custom, engage Indigenous input, generally from ARAP. Akwesasne Child and Family Services (ACFS) has exclusive jurisdiction over child protection matters in its territory. Protection concerns regarding Colby’s parenting as resident of Akwesasne are investigated by ACFS with input from ARAP.

[82] Between May 20, 2021, and July 2023, the CAS received twelve duplicative reports from Colby citing deficits in Tina’s parenting capacity in the form of inappropriate discipline and neglect, prostitution, mental health issues and drug use. The CAS is obliged to investigate. In each case, Tina cooperated, made the boys available, allowed the worker into her home and was open to advice and access to services. She engaged with Victims Services to safety plan. She completed the recommended PPP units. The context for the file opening in May 2021 involved the unilateral withholding beginning in March 2021 that led to Tina’s application.

[83] The CAS had identified parental conflict as the basis for ongoing services but saw no impediment to Tina resuming a caregiving role. Colby acknowledged he had done things resulting in charges but that it was Tina who provoked him, and she was the one to make him act that way. He resisted responsibility for his behaviours. He offered the same perspective in testimony before the Court.

[84] When the CAS supported reunion with Tina and safety planning therefor, Colby refused to cooperate and noted that the CAS decision forced him to withhold the boys from Tina, which is what he did.

[85] Colby’s practice of placing Cruz and Corbin at the center of his angst did not abate in 2023. On January 10, 2023, the CAS received a referral from ACFS suggesting concerns regarding inappropriate discipline and inadequate supervision in Tina’s home. Jon Lazore, CPW with ACFS was present in Colby’s home, in Colby and Chase’s presence to hear Corbin recount how Tina had dragged Corbin down the stairs, locked him in his room and abandoned the house.

[86] Ms. Ouimet is a CPW with the CAS assigned to the case. She said she reviewed the CAS file records. She knew that the Akwesasne Representative Advocacy Program (ARAP) were involved with Cruz and Corbin and enquired whether Maddi Peters might interview the boys at a neutral site such as the AMS. The school declined that request citing fallout from the incident at the school in May 2022.

[87] The boys were interviewed independently in their bedrooms in Tina’s home on January 19, 2023. The CPW’s conclusion was that the boys believe Colby encourages them to advance false reporting of physical abuse, inadequate supervision, drug use etc. They love both parents and yearned for an end to the conflict. Both noted; however, that Colby really wanted them to live with him.

[88] Colby expressed his concern that the Society risked the children's safety in Ms. Lauzon's care. He repeated the refrain that Ms. Lauzon was locking the children in their rooms, not providing adequate supervision, yelling at them and not meeting their medical needs. He further questioned, without factual foundation, Ms. Lauzon's sobriety and the status of her mental health.

[89] Although Tina cooperated fully, she did observe that these reporting and CAS intervention were consequential to Colby’s anger and ongoing effort at coercive control post-separation. She noted that Colby had co-opted Cornwall Police Services by requesting multiple gratuitous police safety checks.

[90] Colby released Cruz and Corbin for their week with mom on January 30, 2023, only after police enforcement.

[91] Colby contacted the CAS again to express his displeasure with CAS efforts, insisting on repeating his narrative regarding Tina’s parenting.

[92] Cruz and Corbin were interviewed at the Koala Center again on February 3, 2023, in the presence of the ACFS worker – Jon Lazore, the boys’ Mohawk advocate, Maddi Peters and the CAS worker Ouimet in relation to Colby’s reporting from January 30.

[93] By this time Cruz and Corbin were expressing concerns for repercussions when Colby learned that they did not verify his reporting. Both independently expressed concern over how Colby would react to learning of the substance of the interview.

[94] That manifested the same day. Mr. Lazore visited Colby at his home while the boys were in school to apprise Colby of the result. The boys arrived on the bus as Mr. Lazore was leaving. Shortly after, Colby contacted Mr. Lazore requesting his return as Cruz contradicted Mr. Lazore’s reporting to Colby and it needed to be sorted out. On Mr. Lazore’s return Cruz, in Colby and Mr. Lazore’s presence, denied the change in narrative from the Koala Place interview earlier in the day.

[95] Jon Lazore’s observations of the dynamics of that discussion are recounted in the portion of these reasons dedicated to the interaction between Colby and the ACFS.

[96] Coincidently, CPW Ouimet reached out to the school principal to enquire about marks, cuts on Corbin’s nose or the like. The principal noted she would have observed anything like that and did not – further cementing Colby’s conspiracy theory.

[97] The salient notions that came from this investigation is that the boys at the time remained committed to both parents, there were no child protection issues in Tina’s home, and they felt as though their dad encouraged them to disparage the time they had with their mother, but that none of the reporting dad made to the CAS about life in Tina’s home was true.

[98] It had to be concerning for the boys to go into interviews knowing they would be contradicting Colby. The workers were concerned about the oppressive effect on the boys from seemingly unnecessary interviews in response to Colby’s repeated referrals based on his construct. The ARAP, on behalf of the Cruz and Corbin, agreed to triage Colby’s referrals moving forward with the view to freeing them from the anxiety inherent in the interview process.

[99] Following a joint verification meeting with the involved agencies, they confirmed that the protection concerns cited by Colby were without evidentiary foundation and were not verified. They closed their files.

[100] In testimony, Colby denied the inherent emotional distress this had to cause Cruz and Corbin.

[101] The CAS file re-opened on April 1, 2023, following a referral from Cornwall Police Services (CPS) indicating a report that Tina had punched Cruz in the face the day prior leaving a mark on his nose. This resulted in a joint CAS/CPS and ARAP interviews. There was a mark on Cruz’s face but from an earlier incident where Corbin may have upset Cruz on his hoverboard. They confirmed that Tina had tended to Cruz with ice. The punch storyline was not verified and was in fact discredited as another invention instigated while the boys were in Colby’s care. The report was not verified, and the file closed on May 12, 2023. The CAS chose to not extend the file for one month as that would entail another interview with the Cruz and Corbin and the Society was concerned about increased influence on the children to make denigrating remarks about their mother.

[102] By this time, Colby was openly alleging a corrupt and incompetent relationship between the CAS, ACFS, ARAP and AMPS.

[103] The last noted CAS involvement occurred on August 11, 2023. This was the day of the standoff at the campsite. Colby for all the same reasons refused to release the boys to police enforcement. He called the CAS after-hours number demanding that the worker instruct police to leave his premises and the boys with him. The call ended when the worker declined prompting a profane tirade from Colby disparaging the CAS.

Akwesasne Child and Family Services (ACFS)

[104] Before separation in July 2020, Tina and Colby lived in Akwesasne Mohawk Territory in Ontario. As noted, the ACFS had been concerned about domestic violence prior to July 2020 when Tina left Colby for good. If she had not diffused the exposure to domestic violence by leaving, ACFS intended formal intervention.

[105] ACFS opened a file on or about September 9, 2022, after the swerve allegation. After interviewing the boys, CPW Mitchell suspended Colby’s parenting time until Mr. Mitchell could sort it out and develop a safety plan to suit the circumstances.

[106] CPW Mitchell resumed Colby’s parenting time on November 9, 2022, and Colby immediately withheld the boys from Tina and school.

[107] CPW Mitchell’s investigation revealed some concern over physical discipline in Colby’s care but of a degree that might be resolved by a safety plan.

[108] The more serious issue raised was in relation to emotional harm consequential to Colby’s inability to comport in a way that constrained his post-separation aggression. CPW Mitchell was satisfied that Cruz and Corbin were frightened as result of the swerve and could not understand why their father would do that to them. Mr. Mitchell noted Colby’s practice of interrogating the boys on return from Tina’s care. Colby then and at trial did not discern how unsettling those conversations had to be for Cruz and Corbin.

[109] Notwithstanding best efforts, CPW Mitchell could not convince Colby that Mr. Mitchell did not have standing to investigate Tina in the Cornwall jurisdiction. This was provocation to Colby. Colby refused to meet CPW Mitchell to complete the safety plan knowing that, had he complied, parenting time with Cruz and Corbin would resume. That would mean to Colby that he had to acknowledge the issues with his parenting uncovered by ACFS investigations. Colby is intolerant to suggestion indicative of parenting deficit. Colby’s reality then and at trial is such that there is nothing he might do to improve his parenting practices.

[110] Colby’s response when his sensibilities are not assuaged is to lash out. By the end of November 2022, Colby had become aggressive with CPW Mitchell. The tone and content of Colby’s emails to CPW Mitchell amounted to ranting to which there was no rational response.

[111] As with his inability to understand his responsibility for the domestic violence directed at Tina, Colby in testimony continued to express the perspective that the CAS, ACFS, ARAP, OCL, AMS and AMPS are corrupt, conspiring against him such that he is victimized by the system necessitating aggressive response.

[112] The working relationship between CPW Mitchell and Colby failed. It was time to change workers. Jon Lazore was drawn into the vortex of the January/early February 2023 imbroglio. As with CPW Mitchell after Lazore devoted considerable effort at trust building with Colby there was a period of relative respect and courtesy in Colby’s messaging.

[113] That structure crashed after the Koala interview. I won’t repeat the narrative included in the CAS section.

[114] Concerns for their safety has been a concern for Cruz and Corbin. Mr. Kennedy CPW seconded to ACFS was briefly involved in the interview process during the April 2023 opening. In discussion around the recently installed security system Mr. Kennedy testified to the effect that the children questioned the amount of time it would take for the police to arrive if they pressed the panic button. When Mr Kennedy said it would take three (3) minutes, the children responded that they would all be dead.

[115] Jon Lazore’s email to Colby on February 15, 2023, in response to Colby’s toxic communication from the day before, succinctly summarizes the Mr. Lazore’s sense of futility:

“You literally just said in your email that police came Friday so to me that meant that you kept the children again. I did not tell you that I’m siding with the lawyer on fines or jail time. If you read it again all I did was try and inform you what could happen.

You are talking about us emotionally harming your children? You started this investigation by asking me to listen to their disclosure. I reported it to the CAS, and then the boys both told CAS investigators that the stuff never happened. Then we thought that was suspicious so ARAP, CAS and ACFS interviewed them at Koala Place, and they both told us that you made them lie about the whole thing.

It was obvious when I went back to the house that your children were lying and scared (emphasis added), Cruz continuously looking back at you looking for your response to everything he was saying, but you cannot see what is obvious, and you cannot see past your own beliefs. (emphasis added)

I explained everything to you, but you still think we are all lying. So Yes, please file a complaint and contact a lawyer. I am 100% in agreement with you. Let them investigate this whole thing.

I will request to close the file today because you are requesting for it to be closed, and also because I do not think I can assist your family any further. You will receive a letter of closure in the mail.

If you have future child protection concerns call the CAS as the mom does not live in our jurisdiction. I wish you and your children the best.

Good bye

Jon”

Jon Lazore subsequently reported concerns over his observation that Colby stalked Mr. Lazore’s spouse after this interaction.

Akwesasne Representative Advocacy Program – Bill Roundpoint

[116] Mr. Roundpoint is a counsellor with ARAP who has known Colby for over 20 years. He is and was most sensitive to Colby’s struggles.

[117] On September 1, 2022, he emailed Colby –

“What I do know is, you are a good father to your boys, there is genuine love and affection shared between you and them. You are a skilled stone mason who needs to get back to work. If I were to guess as to what the problem is, it is the breakup/separation with kids mother still lives in you, which has caused much pain in your heart. I think (without knowing) that all your boys want to see their mother but don’t want to hurt you as they see the pain you are in. I tell you this with respect.”

[118] Colby believes that ARAP is “covering up the children’s disclosures”. Colby burned his connection with that agency. ARAP served a notice under the Trespass to Property Act on Colby on October 17, 2023.

Akwesasne Mohawk Police Services - AMPS

[119] Justice Desormeau ordered the first police enforcement term on February 28, 2022, set to expire August 18, 2022. At the time, Tina’s parenting time was limited to Wednesday evening and Friday overnight.

[120] Usually, a police enforcement term is intended to be situation specific and time limited. Resort to police assistance is intended to be a last resort remedy. The underlying aspiration is that the inclusion of the enforcement term will be sufficient in and of itself to achieve orderly exchanges. These orders are not intended to engage the police in exchanges as matter of routine or to relieve a parent from arranging delivery to the exchange site. Children caught in high conflict files have a difficult enough time coping with parental behaviour. The addition of police enforcement is recognized as another layer in the distress experienced by children in difficult exchanges. The expectation is that the parties to the parent time exchange will perceive the benefit of orderly safe exchanges and mitigate exchange misconduct that justified the order.

[121] AMPS participated in sixteen exchanges returning Cruz and Corbin to Tina. Some were orderly. Some involved confrontation and spectacle. Some exchanges took less than an hour and some took longer than two hours. Tina noted how the process frustrated Wednesday time to the point she gave up.

[122] In this case, Colby confirmed in testimony that he viewed police enforcement as a routine feature of exchanges returning Cruz and Corbin to Tina. Notwithstanding that Cruz and Corbin were awaiting an exchange and were witness to confrontation between Colby and police, he said he did not discern any uptick in their distress levels as these experiences played out.

[123] Detective Nathan Sawatis was the officer most often tasked with attendance at Colby’s home to collect the boys. Colby became a nuisance to the point of public mischief. Colby repeatedly insisted on recounting his grievances regarding Tina and blaming the police for siding with her and not performing their duties. He called into the police emergency number so often he jeopardized the number’s efficacy and AMPS warned Colby to desist.

[124] Detective Sawatis noted that Cruz and Corbin, in Colby’s presence, displayed reluctance about returning to Tina. Their reluctance disappeared, and they were content to go once they were in the cruiser and beyond Colby’s influence.

Joannie Benedict

[125] Joannie is Colby’s cousin, younger with boys in the same age cohort. Her residence was two doors down from Colby. She said she is unwilling to serve as exchanges agent. She is estranged from Tina and aligned with Colby. She is very fond of Cruz and Corbin and observes that her sons enjoy their time together.

[126] Joannie has offered to take the boys for sleepovers. Although receptive in principle, Cruz and Corbin consistently withdrew with the advice that “We have to stay home because Dad needs us.”

OCL

[127] In separate reasons I decided that disclosures made, sentiments expressed and children’s communicated views and preferences in the course of the OCL investigation process as reported in testimony and in affidavit by Ms. Savoia were properly before the Court for truth of content.

[128] The file was assigned to her on March 16, 2022. Her qualifications and experience in working with and for children is exceptional. Cruz and Corbin were fortunate to draw Ms. Savoia to work for them. I accept her evidence without reservation. She is sensitive to the Indigenous element in the file. Ms. Savoia applied best practices in every interview and investigation. She interviewed Cruz and Corbin nine times, six in 2022 and on March 29, September 18 and 21 in 2023. I will discuss the evolution of their views and preferences later. She interviewed each parent once. As she said, her focus is on the children; not so much on the parents. She reached out to all the involved collaterals.

[129] The collaterals confirmed the narrative depicted by Cruz and Corbin. None of the collaterals expressed concern for the safety of the boys in Tina’s care.

[130] That Colby’s purposes were at odds with the role of the OCL was immediately apparent. As with every other community resource brought in to assist the family, he withheld cooperation when he perceived their mandate is not necessarily aligned with his agenda.

[131] Ms. Savoia interviewed Colby first. His focus was directed at poisoning Ms. Savoia’s view of Tina – he recited the same construct; namely, his perspectives on Tina’s drug and consumption, her abuse and neglect of the children. He struggled to redirect focus to Cruz and Corbin. He denied knowing how poorly the boys were doing in school or that it could be due to absenteeism while in his care; he denied his part in the record of family domestic violence or that he interrogated the boys when they returned from time in Tina’s care.

[132] Tina, on the other hand, was attuned to the effects of domestic violence on the boys, to the effects of ongoing exposure to parental conflict and interrogation. Tina’s perception of her children dovetailed with the impressions formed by Ms. Savoia. Tina expressed concern for the safety of Cruz and Corbin when they visit Colby. She disclosed that Colby stalks her.

[133] By May 26, 2022, OCL had interviewed Cruz and Corbin by Zoom, always individually four times – once when they were in Colby’s home, twice in Tina’s home and once at the AMS on May 20, 2022. By then, Colby revealed having recorded his interview as well as the solicitor-client interviews – boys and OCL when they were in his home. This, notwithstanding OCL precautions regarding confidentiality.

[134] The OCL encountered the same theme running through every set of interactions involving Colby and third-party resources. Cruz and Corbin have become conditioned to tell Colby what they understand he wants to hear. In neutral non-threatening environments – Koala Place, ACFS, AMS or alone in their rooms in Tina’s home, they are allowed to freely disclose their views and preferences. Colby’s response when he learns of reporting different than his expectation is to blame the third party for manipulating the boys’ views and preferences. Accordingly, he was determined to record any solicitor client interviews in his home. As such, there were no more solicitor client interviews in Colby’s home.

[135] Colby denied the neutrality of such locations as the school, Koala Place and their bedrooms in Tina’s home. He had concluded the principals involved were joined in a conspiracy against his interests.

[136] In the months of March through May 2022, Tina’s parenting time was set for Wednesday evening after school to 7:00 p.m., and Friday from school overnight to Saturday. Cruz and Corbin were clear in their preference to have similar amounts of time with their mother and father. Both noted that Colby struggled with acceptance of their declarations of love for Tina and their wish to spend more time with her.

[137] Colby challenged the integrity of the OCL process and substance. He decried OCL’s failure to consider his concerns regarding Tina’s lifestyle and their failure to consider Chase’s positions and memories. He was disturbed that the OCL position advanced for the children was no different than conclusions and opinions of the CAS, ACFS, ARAP; namely that the mom offered suitable home and parenting.

[138] He advised of intention to withdraw the consents he signed at file opening and requested a change of OCL representation for the boys. OCL noted in reply that they would refer the request to their supervisors. By July 7, 2022, Colby said he would consent to further interviews with the boys so long as the interviews were recorded word for word.

[139] He expressed concern about how OCL had not factored Chase’s memories into the metric. OCL counsel noted in response that there is room for different outcomes for different children. Chase was 18 at date of trial. There is consensus that Chase aligns with Colby. It is unclear and not particularly relevant whether Tina had a substance problem prior to separation. The uncontradicted evidence is that, since separation, Tina leads a clean lifestyle. She has been investigated and tested many times over the past 3 years and the conclusion is consistent, she is clean. Ms. Savoia noted that it is not uncommon for victims of extended domestic violence to resort to substance use to escape unfortunate reality.

[140] She noted the ongoing coercive control Colby exerts:

• The endless fixation and repetition of grievances long past if they existed at all;
• The endless request for police safety checks;
• The context he takes with the boys – I am fine with parenting time with Mom so long as you are safe but we know you are not safe so I will withhold you;
• The tire slashing;
• The swerve;
• The visit to the house September 30, 2021;
• The stalking – drive byes and telling the boys I will be back for you;
• Slashing the mattress;
• Repeated threatening and pejorative phone calls and messages;
• Repeated breaching of the contact prohibition contained in two probation orders – Colby is undeterred by Court orders;
• Allegations of stalking the AMS principal after May 2022;
• Allegations of stalking Jon Lazore’s spouse in February 2023;
• Not allowing the boys to take their glasses when with mother;
• Words spoken to the boys to the point that when he sees Mom he will kill her.

[141] Colby declined OCL offering for a disclosure meeting in October 2022. Instead, he insisted on production of the OCL legal file. Counsel advised Colby that the information contained in Ms. Savoia’s affidavits were accurate recordings of the children’s comments. Otherwise, the solicitor/client file is privileged for good reason.

[142] The boys were interviewed the last time in September 2023. By then, their contact with Colby had been terminated by Court order. Their depiction of time with Colby suggested a person in serious turmoil on the edge of completely losing capacity to self regulate:

• Prevalence of angry disposition toward the boys
• Recent drive by’s
• Stalking
• Telling the boys about how he intends to kill their mom
• The pre-trial phone message

[143] Both boys are fearful over what Colby might do. The order to stop Colby’s parenting time gave the boys respite from the burden of having to mollify him. They expressed a sense of safety and security in mom’s home. They were relieved to have the security system installed in the home.

[144] The Court asked Ms. Savoia while testifying to explain to Colby in terms he would understand why Cruz and Corbin would repeatedly tell him what he wanted to hear. In response, Ms. Savoia turned in her chair to face Colby directly and began to explain. Colby turned his face away from her and began speaking with counsel. The effect was poignant.

[145] In terms of views and preferences Cruz agreed to supervised parenting time with Colby so long as Colby gets some help to change his behaviour. Cruz misses Chase and would enjoy time with him.

[146] Corbin is unprepared to have parenting time with Colby. He does not view supervision as helpful. He notes that his dad has done mean things to him when other adults were present, and no one protected Corbin. He too wants to see Chase.

[147] Ms. Savoia noted that Colby’s behaviours trip 15 of 41 identified risk factors for uxoricide including:

i. Common law relationship ii. Child custody or access dispute iii. Unemployed iv. Evidence of mental health/psychiatric problems v. Obsessive behaviors vi. Undeterred by authority vii. Sexual jealousy viii. Prior destruction or deprivation of victim’s property ix. History of violence outside the family x. History of domestic violence xi. Threats to kill xii. Prior assaultive behaviour with weapon xiii. Extreme minimization of spousal assault history xiv. Access to weapons xv. Victim vulnerability

[148] She observed that Tina will be at highest risk of serious harm or death today. Time will pass very slowly for Colby today and for the next while. In terms of help Ms. Savoia noted that Colby’s behaviours are coming from a place of great hurt and pain. He needs culturally sensitive trauma counselling addressing early childhood trauma and how that informs his behaviour today. It is a long-term process that could take months or years.

[149] The efficacy of counselling will turn on whether Colby can acknowledge his hurt and loss; whether he can commit to change; and will entail life changing adaptation.

Central Healing counselling for the boys

[150] This was Colby’s initiative. As with every other community resource, Colby’s purpose is to enlist another weapon to use against Tina. He is not committed to whatever the counselling might do for them; rather he said he aspires to some kind of disclosure that will oblige the counsellor to file a report with child protection or police services to trigger another investigation and round of interviews.

[151] He consistently repeated that if we resumed the pre-September parenting time regime, he would resume the withholding practices “to protect his sons” together with police enforcement and the resulting turmoil.

[152] The OCL. CAS, ARAP and ACFS agreed that repeated interviews themselves engender distress related to coaching and the post-interview recrimination from Colby for not repeating what it was they may have said to him.

[153] The Central Healing witness confirmed virtually unlimited funding for counselling the Indigenous. This may be an effective starting point for Colby.

Analysis

[154] Cruz and Corbin’s best interests are the only consideration in this analysis. The perspective is that of the children rather than that of the parents.

[155] Subsection 24(2) if the CLRA provides that in determining the best interests of a child the Court shall consider all factors related to the circumstances of the child and in so doing shall give primary consideration to the child’s physical, emotional and psychological safety, security and well being.

[156] Implicit is the need to consider the level of hostility exhibited by a parent and the extent to which that hostility undermines the children’s stability including whether and how much the parent seeking parenting time has used contact for purposes collateral to a best- interests relationship.

[157] Subsection 3 breaks that down offering factors that might come into play in the family before the Court. The list is not exhaustive nor is it a checklist to be tabulated with view to a score. The analysis entails a holistic review of the children and their needs. No one factor is given statutory preeminence.

[158] I have factored these considerations into the final order as follows:

The needs of the children given their ages, stages of development and the children’s need for stability.

[159] I am concerned about two competing outcomes.

[160] One is the effect of resuming the way things were before Justice Desormeau suspended Colby’s parenting time. That is untenable. Colby needs to learn empathy. The Court’s mandate is to ensure the emotional and physical safety of the children and their caregiver.

[161] The other is the effect that a hiatus in the father child relations may have on two children who, but for Colby’s behaviours, would embrace parenting time with him. There is no issue that Cruz and Corbin have room in their hearts to love both parents, Chase and extended families and to benefit from healthy family relations on both sides. That said their most recent instruction to the OCL suggests awareness of the instability imposed by their father on their lives over the last 2.5 years.

[162] Cruz and Corbin will embrace reconnection with Colby if he is able to develop the requisite insight and perspective. They will need that in their lives.

[163] I noted at the end of trial before we broke to receive written submissions that reversion to the situation prior to Justice Desormeau’s ruling suspending Colby’s parenting time in July 2023 was not an option. Colby is unequivocal about his intention to revert to the same practices as before and depicted in these reasons when his parenting time is reinstated. He committed to withholding the children, to delivering them to any community resource agency who will listen to his recitation of beliefs in relation to Tina’s lifestyle and parenting.

[164] It is axiomatic that Cruz and Corbin will benefit from the security of stability. A big portion of their lives has been consumed by instability. Before the separation the ACFS was concerned about the effect of domestic violence in the home on the children. The agency was close to removing the boys to a place of safety and likely would have done so without Tina’s decision to leave the relationship.

[165] The instability in their lives post separation derives exclusively from Colby. He withheld contact with their mother for 6 months beginning March 15, 2021. He reported Tina to the CAS 12 times since 2021. Each reporting entailed CAS investigation including worker interviews. He confounded initiatives to orderly exchanges. He exposed the boys to police enforced exchanges in the range of 16 times. He leaves toxic phone messages. The boys believe he swerved his truck at their vehicle. He relentlessly interrogated them about life in Tina’s home after Tina’s parenting time. He withheld them from school for 62 days in 2021. He instigated confrontations at the school – example May 2022 and but for the strong moral compass demonstrated by the principal would have compromised the place of safety value of the school. The tire slash incident destabilized Cruz’ sense of safety, security and well-being. Colby repeatedly uses the police as proxy for ongoing harassment by requesting police safety checks on Tina.

[166] Ms. Savoia and the professionals involved in this family have testified to the father’s lack of insight as to how his behaviour is impacting the children.

[167] Colby demonstrated inability to understand the scope of the harm that the children have experienced beyond any physical discipline:

• Colby admitted to having Mr. Lazore attend his residence to confront the children about what they told workers.
• Colby admitted to keeping the children for extended periods of time, at times blaming the mother for not picking them up.
• Colby admitted to keeping the children from taking their glasses to their mom’s residence.
• Colby admitted to favouring using police officers to exchange the children, rather than finding a third party to do so.
• Colby admitted to questioning the children, seeking more details and clarifications following interviews with professionals.
• Colby has repeatedly taken the children to professionals to make unfounded allegations against the mother.
• When referring to incidents of physical violence towards third parties, Colby victimized himself and explained his behaviour as reactive. He would not have had to do what he did if they had not wronged him.

[168] Cruz and Corbin would benefit from healthy relationships with Colby, Chase and the Benedict extended family. As it is results in unreasonable instability and anxiety. Colby is urged to seek out ways to normalize his response to the relationship failure and move on to more insightful mature relations. The best outcome is one where Colby embraces the value of change and discernment in timely manner so he can resume his proper role. Until that comes to be, exposure to Colby is problematic.

The nature and strength of the Children’s relationships with parents and extended family.

[169] Tina was always the primary parent. The objective evidence is that the mother/children relationships are healthy and able to withstand external challenges. The boys feel safe and secure in Tina’s care. Notwithstanding what they feel is pressure brought by Colby to disclose “bad” behaviour by Tina when both are removed from Colby’s zone of control, they express their unease about telling lies about her. There is no evidence to suggest that Tina has ever coached them to report Colby’s misconduct to an investigator.

[170] Cruz and Corbin are well aware of how much Colby needs their time and affection. Joannie’s observation to that point was poignant. It signifies that the father child dynamic has become distorted on many levels. Cruz and Corbin are very sensitive to Colby’s sensibilities. Colby is insensitive to theirs. In that context the boys have weathered the domestic violence, interrogation into life in Tina’s home, their perception that Colby wants them to denigrate their mother during interviews with other adults while simultaneously experiencing Colby’s anti-social behaviours such as the telephone messaging, the ruminations about killing Tina or abducting the boys, or about the swerve and stalking.

[171] Colby has not recovered from the hurt, loss, anger of the relationship breakdown. Colby told Ms. Ouimet back in 2021 that Tina should pay for her role in the relationship failure, just as he had. He was determined to withhold Tina from the boys regardless of the results of CAS investigation. More recently Bill Roundpoint and Jon Lazore recognize that Colby weaponized the boys to make Tina pay.

[172] He doesn’t recognize how traumatic this is for them. That is the issue. Although he does not understand it, Colby treats Cruz and Corbin as pawns. That is not a secure relationship.

[173] Colby’s extended family enables Colby’s behaviours. If Colby is to manage a change in his parent/children relationships, he will have to do it independently.

Each parent’s willingness to support the development and maintenance of child’s relationship with the other parent

[174] Although Tina is frustrated by Colby’s sustained effort at coercive control – withholding the boys, the telephone calls, the public mischief and stalking, police checkup calls and the interminable false reporting to CAS, ACFS, CPS, AMPS it was indicative of her commitment to facilitate Colby’s parenting time last year when she pushed back against CPW Mitchell’s decision to suspend Colby’s parenting time after the swerve investigation. She resumed the week about schedule immediately after CPW Mitchell authorized it.

[175] There is no evidence of a Tina-agenda to discredit Colby.

[176] As noted, Colby has dedicated the last 2.5 years to discrediting Tina and tearing down the mother/children relationships. Colby perceives an either/or choice – Mom or me. He gave no indication of an intention to change course during the trial. He remains committed to making her pay under the guise of protecting Cruz and Corbin.

Children’s views and preferences

[177] Children’s views and preferences while important are not determinative. Children caught in parental conflict are innocent and vulnerable victims. While their views and preferences were admitted for truth the influence on outcome is negligible.

[178] The outcome on the substantive ruling has been driven almost exclusively by Colby Benedict. Unfortunately, Colby is bereft of insight into the effect of his behaviours. If they could trust him, Cruz and Corbin would resume regular parenting time with Colby in a heartbeat. Right now, they cannot. Colby will have to earn back trust if he truly aspires to a healthy parent child relationship with Cruz and Corbin. To do that he needs to let Tina go and move on. That entails serious counselling and therapy.

[179] With that caveat, the views and preferences of the children have been ascertained in thorough reliable fashion. Nine interviews between a most capable social worker and each child. I am satisfied that the views expressed on their behalf are independent as well as in conformity with what they have experienced over the last few years and through their lives.

[180] Of course, they love Chase and both parents. Initially they were favouring equal time with each parent. Best of both worlds. We cannot know what life in Colby’s home is like. There are issues with the interrogations directed at denigrating Tina, there is the ongoing pressure to testify against her in interviews with the many service providers and to discount any joy they experience in her care, there is the pressure to assuage Colby’s fragile ego and the ever-present anxiety in the prologue to scheduled exchanges.

[181] Their instructions evolved overtime. I attribute such changes as they were to their ongoing experiences with Colby. Justice Desormeau’s order to suspend Colby’s parenting time gave Cruz and Corbin a breather; time to reflect and experience security in their residential circumstances.

[182] Colby pays no heed to Court orders. One of the reasons that many family proceedings degenerate into expensive merry-go-round rides is the all-too-common casual approach to compliance with Court orders. Non-compliance undermines the efficacy and integrity of our process. The children’s best interests have been compromised. We are here and are left with the fallout. Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion.

[183] If Tina chooses to enrol Cruz and Corbin in counselling designed to reset their father child dynamic, they will learn better coping skills around Colby’s deportment.

[184] Corbin does not want parenting time with Colby at the moment. He is fearful of Colby and the incessant impulsive behaviour.

[185] Cruz is amenable to supervised parenting time in the context of expectations of change in Colby’s deportment after counselling. I expect that if Colby uses the next while efficiently, he may be able to effect the change necessary to reboot his role in their lives. Once Cruz settles in Corbin will follow suit.

[186] Colby’s conduct over the past 18 months suggests he is close to a break with reality. Cruz and Corbin have had front row seats to the drama. They are afraid of him.

Children’s Mohawk cultural, linguistic, religious, and spiritual upbringing and heritage

[187] Cruz and Corbin are Mohawk. Tina subscribes to fully supporting their Mohawk cultural, linguistic, religious and spiritual heritage. Chase went to the AMS. Cruz and Corbin – the same. That Tina is not Indigenous may be an impediment, but she resided in the Mohawk community for many years, is familiar with traditional practices and the boys have files with ARAP whose role is to accommodate the boys’ cultural growth.

[188] I don’t know how safely full participation in traditional cultural activities might play out. A lot depends on Colby and the Benedict family and their capacity to put aside their collective contempt for Tina. The best case is one where Colby accepts the views of the counsellors and other professionals who have talked with him over the last 2.5 years, acknowledges the need for change and begins the healing involved in trauma counselling.

[189] Everyone involved in the file hopes he can get to the point where he can safely resume parenting time with the boys so he and his family can safely immerse Cruz and Corbin in their culture.

Any family violence and the impacts:

[190] Family violence is a critical consideration in the best interests analysis.

[191] There is evidence of family violence long before the final separation. It goes back to shortly after Chase was born. Along the way there was the punch to Tina’s mouth, the kick to her head and the assault with the tire iron. ACFS was alert to the violence and safety planning while Tina remained with Colby had little chance of efficacy.

[192] The incidents at the Tim Horton drive through and the flowerpot matter were driven by jealousy. The September 30, 2021 attendance at the residence where Tina was living contrary to the no contact prohibition, swerve and tire slash are indicators of intimidation and coercive control.

[193] Cruz, Corbin and Tina are victimized by the excessive requests for safety checks, child services and police investigation, arbitrary and unilateral withholding of the boys at scheduled exchange times, the toxic phone messaging, the drive byes, threats against Tina’s safety communicated to the boys are incidents of Colby stopping at nothing to maintain control over Tina.

[194] The last phone message was one week before trial. The tire slashes a month or so before trial. Colby was incarcerated over the weekend before trial after arrest in Cornwall on multiple contact breach charges.

[195] Cruz and Colby are afraid of what Colby might do next.

[196] Colby denies that any of this should influence the Court’s decision and he should have licence to carry on as before.

[197] The Court has to go with reliable and credible evidence adduced at trial. Interminable repetition of unsubstantiated bald assertion, as is the case with Colby as he churned through various community resources, each of whom undertook their own diligence as they are obliged to do, itself is an issue. That Colby is seemingly unable to accept the validity of independent investigators is an issue. The manner in which Colby responds to information inconsistent with his perspectives is an issue.

[198] Although Cruz and Corbin are ostensibly central to his behaviours the quest is directed at Tina. That Colby consented to a final order giving Tina exclusive decision making and primary residence suggests that he is not particularly concerned about their wellbeing in her care. He knows that the many allegations he promulgates are untrue.

[199] The conclusion that Colby is and has been controlling and jealous is compelling. Colby’s seems to be driven by his need to control Tina. He is obsessed with what he believes he has lost or what she has taken from him by her leaving. It is an illusion. The relationship failed for whatever reason. The Court agrees with Ms. Savoia to the point that Colby may benefit from sensitive trauma therapy.

[200] A parent who fails to allow children to have separate feelings for the other parent is a form of coercive control. The evidence is that Cruz and Corbin are not allowed or at least they feel they are not allowed to express endearment for Tina when they are with Colby. On the contrary, they feel they are urged to denigrate her.

[201] Bill Roundpoint and Jon Lazore tried to redirect Colby in a respectful and sensitive manner. They saw that Colby’s misconduct was driven by loss and jealousy. Mr. Roundpoint recommended that Colby get back to work and on with his life. Both had to walk away from the situation in the face of Colby’s intransigence.

[202] Through this trial, Colby showed no remorse, acknowledgment of his behaviour, let alone a willingness to change his behaviour.

[203] Ms. Savoia noted that the evidence in this file raises several risk factors when assessing risk for lethality.

[204] In these circumstances, the Court is obliged to do what it can to protect Tina and the children. Colby is undeterred by Court orders. Supervision without recognition of the reason for it is unsafe. The Court has no confidence in Colby’s capacity to honour protocols in relation to supervised parenting time.

[205] In cases of family violence, the Court shall take into account the safety of the children, and other family members and the Court must consider whether supervised parenting time at a supervised access centre will provide sufficient safety to the children and third parties who may be driving them to and from the exchanges.

[206] The only way this deadlock resolves is if Colby develops some insight into the effect of his misconduct on the boys and Tina. The supervised access center cannot protect the family before and after visits. Parenting time at a supervised access centre, will put both the children and the third party facilitating the parenting time at risk of being stalked as well as being physically harmed. It jeopardizes the anonymity of Tina’s address.

[207] The children’s views and preferences were reliably ascertained by Ms. Savoia. They are entitled to consideration. They are, for good reason, afraid for their safety and that of their mother.

Restraining Order

[208] The facts constitute reasonable grounds for Tina and the boys to fear for their safety.

Mental Health Assessment

[209] The OCL submitted that Colby should be ordered to undergo a mental health assessment. While the Court agrees that such an assessment will be an important first step in Colby’s rehabilitation process this is, with respect, something that is best left to Colby. If he wants to repair his relationship with Cruz and Corbin, he will of his own initiative take the first step in creating an evidentiary basis for showing a change in circumstances that merits reinstatement of parenting time.

[210] Otherwise, this becomes another unenforceable obligation.

Conclusion

[211] Colby’s family – Tina, Chase, Cruz and Corbin will forgive Colby in an instant should he choose to get the help he needs. Everyone, including Colby, will benefit. Otherwise, the family and Colby lose one of the most important relationships in their lives. Colby would choose well if he reaches out to his old friend Bill Roundpoint to help get him started.

[212] Order to issue in accordance with paragraph 5.

The Honourable Mr. Justice Rick Leroy

Date: February 1, 2024

Appendix A

CLRA - Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care f or and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

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

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

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

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

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

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

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

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.