ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Monica Cecilia Izquierdo Rubio
Applicant
- and -
Martin Berendson Leigh
Respondent
Debora Brubacher, for the Applicant
Self-represented
Deborah L. Stewart, for the Office of the Children’s Lawyer
HEARD: April 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 24, 25, 26; May 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, 31; June 3, 4, 5, 6, 7, 10; and July 11, 12; with further written submissions due August 9, 2024
REASONS FOR JUDGMENT
MITROW J.
1. INTRODUCTION
1This seven-week trial regarding the parties’ now 11-year-old child is the latest chapter in an exceptionally high-conflict case where the parties have engaged in constant litigation, starting when the child was an infant, and spanning two continents.
2The applicant mother fled with the child from her home country, Peru, in the face of ongoing litigation in Peru involving parenting issues, and arrived in Canada in early November 2019, claiming that she was fearful for the lives of herself and the child because of the father’s conduct. The respondent father followed the mother to Canada, specifically to London, Ontario where the mother and child were residing, and where both parties continued to reside at the time of trial.
3The father commenced an application pursuant to the Hague Convention1 (“Hague application”) seeking the return of the child to Peru. The Hague application was dismissed. The respondent father appealed to the Court of Appeal for Ontario and his appeal was dismissed (“Hague appeal decision”).
4This current trial required the court to consider a parenting plan for the child. This was acknowledged by the Court of Appeal for Ontario in its reasons.
5The most significant issue in this trial relates to the parenting order that is in the child’s best interests. The other main issues relate to the applicant mother’s claims for child support, a restraining order and an order pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“vexatious proceedings”) prohibiting the respondent father from instituting any proceedings except by leave of a judge of the Superior Court of Justice.
6For reasons that follow the order below includes that the applicant mother shall have sole decision-making responsibility for the child; the child is to reside with the mother; the respondent father has no parenting time with the child subject to the procedure and conditions specified in the order where parenting time could be arranged; father is ordered to pay child support; a final restraining order is granted; and the mother’s claim for an order pursuant to s. 140 of the Courts of Justice Act is granted.
7For convenience a table of contents is appended to these reasons for judgment as a schedule.
2. BRIEF BACKGROUUND
8During this trial the applicant mother requested to be addressed as Ms. Izquierdo and the respondent father requested to be addressed as Mr. Berendson. Accordingly, in the balance of these reasons, the parties are addressed as requested, and at times are referred to as the applicant and the respondent.
9Both parties were born and raised in Peru. Mr. Berendson also is a German citizen and has both German and Peruvian passports. The parties’ relevant employment histories are dealt with later in these reasons.
10The parties were married August 3, 2012 in Peru. They separated in or about the latter part of 2013 or early 2014. The parties have one child, a son, M, born in February 2013 (“the child”). The parties’ marriage was annulled in Peru.
11Ms. Izquierdo has three other children who are now adults: her son, H, her daughter, J, and her son, D, who were born, respectively, in 1993, 1996 and 2001. Mr. Sandoval is the father of H and J and Mr. Ruben Mimbela (“Mr. Mimbela”), who testified at trial for Mr. Berendson, is D’s father. Mr. Berendson has no other children.
12At the time of trial, Ms. Izquierdo was age 53 and Mr. Berendson was age 56.
13Shortly after Ms. Izquierdo and the child left Peru, they arrived in Canada on or about November 4, 2019, and they made a claim for refugee status. Ms. Izquierdo’s partner with whom she had been residing in Lima, Peru, also came to Canada. Ms. Izquierdo, the child and Ms. Izquierdo’s partner have continued to reside together in London, Ontario.
14A decision of the Immigration and Refugee Board of Canada states that in relation to Ms. Izquierdo, the child and Ms. Izquierdo’s partner, that their claims for refugee protection were heard on October 27, 2022, and that the Refugee Protection Division determined that the “claimants are Convention refugees and therefore accepts the claims.”2
15Ms. Izquierdo testified that she and the child have permanent resident status in Canada.
16Mr. Berendson arrived in Canada in or about July 2020 at the height of the Covid pandemic. He has been residing in London, Ontario since shortly after his arrival in Canada. Mr. Berendson has made application for refugee status; further details regarding same are discussed later in these reasons.
17It is Ms. Izquierdo’s evidence that she fled Peru with the child as a result of her fears for the lives and safety of herself and the child because of Mr. Berendson’s history of family violence. Mr. Berendson has an entirely different narrative. His evidence is that he is the victim of a child abduction perpetuated by Ms. Izquierdo and others; that he is a loving father who has been deprived of having a relationship with the child; that he seeks to be reunited with the child so that he can continue the loving father-son relationship that they had in Peru. Mr. Berendson either does not acknowledge, or denies, engaging in any conduct constituting family violence.
18As discussed in more detail later, the child has no ongoing relationship or any contact with Mr. Berendson.
3. THE ISSUES
19The issue that occupied most of the trial related to the parenting order that is in the child’s best interests. The substantial evidence at trial in relation to the parenting issues included a not insignificant volume of evidence directed at the allegations of family violence perpetrated by Mr. Berendson.
20For his part, Mr. Berendson during his testimony accused Ms. Izquierdo’s son, H, of perpetrating violence against Mr. Berendson. In addition, Mr. Berendson’s witness, Mr. Mimbela, testified and accused Ms. Izquierdo of violent behaviour towards Mr. Mimbela. These allegations are discussed in more detail later in these reasons. Findings are made rejecting both Mr. Berendson’s and Mr. Mimbela’s accusations.
21In relation to the parenting issues, Mr. Berendson raised the applicability of s. 41 of the Children’s Law Reform Act, R.S.O. 1990, c C.12, (sometimes referred to as the “CLRA”). He claimed that the courts in Peru retain jurisdiction in dealing with parenting issues, and Mr. Berendson claimed that the existing parenting orders made in Peru should be enforced. The issue in relation to s. 41 raised by Mr. Berendson is fraught with inconsistencies. That issue is dealt with separately in these reasons.
22The remaining main issues include Ms. Izquierdo’s claims for child support, an order pursuant to s. 140 of the Courts of Justice Act and a restraining order. Those issues are also dealt with separately in these reasons.
23The remaining issue relates to an order made by the court during the trial prohibiting access to the digital audio recordings of this trial. That order allowed the parties to make submissions as to whether the order should continue after the conclusion of the trial. This issue is briefly dealt with separately in these reasons.
4. THE POSITIONS OF THE PARTIES AND THE OFFICE OF THE CHILDREN’S LAWYER REGARDING THE ISSUES
24At the outset of the trial, Ms. Izquierdo3, Mr. Berendson4 and the Office of the Children’s Lawyer (“OCL”)5 each filed a proposed draft order dealing with the issues in this trial. In their written closing submissions and during oral closing argument, there was some expansion as to the relief sought in the various draft orders.
i. Ms. Izquierdo
25In relation to the parenting order, Ms. Izquierdo seeks sole decision-making responsibility for the child and a continuation of the primary care of the child. Ms. Izquierdo seeks an order that Mr. Berendson have no parenting time with the child, except on the child’s initiative and consent, and on a supervised basis.
26In addition, in relation to parenting, Ms. Izquierdo requests orders as follows: that she retains control over the child’s personal identity documents, including the right to apply for or renew government-issued documents without Mr. Berendson’s approval or consent; an order permitting Ms. Izquierdo to change the child’s principal place of residence without Mr. Berendson’s authorization; an order permitting travel anywhere with the child without Mr. Berendson’s authorization; and an order that Mr. Berendson have no access to any information regarding the child including information from third-party service providers except as the child may choose and with the child’s prior written consent.
27Ms. Izquierdo seeks a wide-ranging order prohibiting Mr. Berendson from publicizing the child in any manner including on social media.
28Regarding child support, Ms. Izquierdo seeks an order of child support based on imputation of income to Mr. Berendson.
29Ms. Izquierdo also seeks a restraining order against Mr. Berendson, that includes non-communication in relation to Ms. Izquierdo, her partner and the child, except as permitted in a parenting order.
30Regarding s. 140 of the Courts of Justice Act, Ms. Izquierdo seeks an order prohibiting Mr. Berendson from commencing further “applications and/or motions” except as may be permitted by the court.
31Regarding the issue of access to the digital audio recordings of this trial, Ms. Izquierdo supports an order prohibiting access to those recordings.
ii. Mr. Berendson
32In his draft order, Mr. Berendson seeks: immediate restoration of his parenting time with the child; an order that the courts in Peru have jurisdiction over this case; and that the restraining order made against Mr. Berendson in this court be terminated.
33Further, Mr. Berendson opposes the claim for child support and he opposes the claim against him for an order pursuant to s. 140 of the Courts of Justice Act.
34Mr. Berendson did not articulate clearly a position concerning access to the digital audio recordings of the trial.
iii. OCL
35The OCL’s written closing argument as to the orders was more detailed than in the draft order. The OCL seeks an order as follows:
a. Ms. Izquierdo shall have sole decision-making responsibility for the child, and the sole right to determine where the child lives, and with whom, without notice to Mr. Berendson;
b. Mr. Berendson shall have no parenting time or any form of contact with the child, except on the child’s initiative and consent;
c. Mr. Berendson shall have not have access to any information regarding the child, including information from third-party service providers except as the child chooses and with the child’s prior written consent;
d. Ms. Izquierdo may travel anywhere with the child with no requirement of notice to Mr. Berendson and no requirement for Mr. Berendson to consent;
e. Ms. Izquierdo shall have control of all government and any other documents relating to the child, including the sole right to apply for any government-issued documents; and
f. The OCL proposed a detailed provision prohibiting Mr. Berendson from broadcasting, in any form including social media, any image or identifying information regarding the child.
36The OCL supports an order prohibiting access to the digital audio recordings of the trial and an order against Mr. Berendson pursuant to s. 140 of the Courts of Justice Act.
5. BRIEF SUMMARY OF PREVIOUS COURT PROCEEDINGS IN ONTARIO
i. Hague Application
37In March 2020, Mr. Berendson commenced his Hague application. This application proceeded to a trial and a decision was released June 21, 2021.6
38The reasons for judgment framed the various issues and the conclusions.7 For the purpose of the current trial, most relevant were the conclusions that the child’s habitual residence immediately before removal was Peru; that the child was wrongfully removed from Peru because the father had custody rights in Peru that were being exercised; and that there is a grave risk that the child’s return to Peru would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.
39As noted earlier, Mr. Berendson’s Hague application for the return of the child was dismissed.
40It is apparent from the comprehensive reasons for judgment, comprising 84 pages, that Mr. Berendson’s behaviour and conduct towards Ms. Izquierdo and her family was a significant issue during the trial of the Hague application. A number of allegations made against Mr. Berendson during the trial of the Hague application were repeated by witnesses in the present trial and formed part of the evidentiary record.
41In the Hague application, the refusal to return the child was based on article 13(b) of the Hague Convention8:
Article 13
Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
42While there was evidence that was common to both the Hague application and the present trial, the focus of each proceeding differed substantially. The Hague application was governed by the principles set out in the Hague Convention and the jurisprudence applying those principles, and did not involve a determination of the child’s best interests which is the focus of the current trial in relation to the parenting order.
43Mr. Berendson was ordered to pay $50,000 in costs regarding the Hague application.9 Those costs remain unpaid.
ii. Mr. Berendson’s Second Hague Application
44Mr. Berendson commenced an application in January 2022. He sought various relief pursuant to the Hague Convention. This application was commenced after the judgment was rendered in the first Hague application, but prior to the hearing of the appeal.
45A motion was brought by Ms. Izquierdo to dismiss the second Hague application. On August 2, 2022, the court dismissed Mr. Berendson’s second Hague application, describing it as an abuse of process10 and an attempt to re-litigate the initial Hague application.11
46The court awarded costs to Mr. Izquierdo in the amount of $5,000.12 Those costs have not been paid.
iii. Decision of the Court of Appeal for Ontario (the Hague appeal decision)
47On August 12, 2022, the Court of Appeal for Ontario dismissed Mr. Berendson’s appeal13 from the judgment dated June 21, 2021, that dismissed the Hague application.
48The Hague appeal decision included important guidance and direction to this court in relation to the current trial. At paragraph 5 the court states:
[5] As I will explain, because of the delay, this court is now limited in its remedies. It has been more than two-and-a-half years since the abduction, and it is simply too late to return the child, who is now estranged from the father. The only available remedy at this point is a direction to the court below to move quickly to a resolution of a parenting plan with a fresh approach to the evidence.
49The court stated further that as a result of the application judge’s decision, that Ontario is now exercising jurisdiction to conduct an application by Ms. Izquierdo for a parenting order: para. 13.
50The court acknowledged at para. 38 the applicability of article 16 of the Hague Convention which states that the court of the requested state shall not decide the merits of custody until there is a determination that the child will not be returned. The court added that is where the family is now; that the parenting of the child remains to be determined.
51The court emphasized in para. 39: “… that the merits of the parenting proceeding should be considered with a fresh approach.” In making that statement, the court identified gaps in the Hague application judge’s analysis14 and court discussed its concerns more specifically in paras.41-49. At para. 50, the court reiterated its directive that the current parenting application requires a fresh approach:
[50] The application judge’s credibility findings do not amount to a reversible error. However, the difficulties I have articulated with respect to the process followed here and the application judge’s analysis require that the court approach the ongoing parenting application afresh.
52The court’s directives to appoint a case management judge and to appoint the OCL were implemented promptly.
53The court at para. 54 stated: “… I would order an expediated assessment pursuant to s. 30 of the CLRA …”. Despite this order, no s. 30 assessment was conducted. The failure to comply with this order is addressed later in these reasons.
54These reasons for judgment are guided by the directive from the Court of Appeal for Ontario to approach the parenting application afresh.
6. THE WITNESSES IN THIS TRIAL
55Both parties testified and each party’s evidence spanned many days. In addition, Ms. Izquierdo testified briefly in reply. Ms. Izquierdo testified in Spanish and Mr. Berendson testified in English except for some very brief and concise evidence that Mr. Berendson elected to give in Spanish.
56As the applicant, Ms. Izquierdo had a number of witnesses planned but in order to shorten the trial Ms. Izquierdo put in her case through her testimony and also through the testimony of her daughter, J. Ms. Izquierdo removed her two sons, H and D, from her planned witness list with the proviso that she would call those witnesses, if necessary, in reply, which is what occurred.
57All of Ms. Izquierdo’s witnesses testified in Spanish. H and D testified in-person and J testified remotely from Lima, Peru. When being cross-examined by Mr. Berendson, both Ms. Izquierdo and H requested accommodations so that they did not have to look directly at Mr. Berendson while he was questioning them. The court directed the use of a one-way screen which prevented the witness from seeing Mr. Berendson, but which allowed Mr. Berendson to see the witness.
58The OCL’s case followed the presentation of Ms. Izquierdo’s case. The OCL called one witness who was the clinician assisting OCL counsel. The clinician testified remotely.
59The testimony of Ms. Izquierdo’s witnesses and the OCL witness is discussed later in these reasons.
60Mr. Berendson also removed a number of witnesses from his planned witness list. Mr. Berendson called five witnesses. One of those witnesses as noted earlier was Mr. Mimbela and his evidence is dealt with later in these reasons.
61Two of the Mr. Berendson’s witnesses, Mr. David Jansen (“Mr. Jansen”) and Ms. Cindy Hoy (“Ms. Hoy”) fell into the category of character witnesses. They both testified in English and in-person. Mr. Jansen met Mr. Berendson following Mr. Berendson’s arrival in Canada and has known Mr. Berendson for about three years. While Mr. Jansen spoke positively of his relationship with Mr. Berendson, and his observations of Mr. Berendson’s interactions with others including children, I find that Mr. Jansen’s evidence is not helpful in deciding the issues in this case. Mr. Jansen has never met the child.
62Ms. Hoy met Mr. Berendson two-and-a-half years ago. Her testimony described Mr. Berendson in very favourable terms; he is regarded as part of her family and has a good relationship with her children. Ms. Hoy described in positive terms the activities that Mr. Berendson engaged in with her children.
63Ms. Hoy has not met the child. I assess her evidence as being of marginal relevance and of little assistance.
64Mr. Lennon Godversen (“Mr. Godversen”) testified remotely and in English from Lima, Peru. Mr. Godversen gave brief evidence regarding his observations of the positive interaction between the child and Mr. Berendson at a Father’s Day event in 2019 in Peru. Mr. Godversen acknowledged that he first met Mr. Berendson on that occasion. While I take Mr. Godversen’s evidence into account, it is limited only to one observation of Mr. Berendson and the child.
65Ms. Wendy Cotlear Leon testified remotely from Guelph, Ontario and in Spanish. She has been in Canada for 21 years. She attended university in Peru. Much of this witness’ evidence was neither helpful nor probative with the exception of the witness’ observations of Mr. Berendson and the child. This witness testified that she travels to Peru and recalled seeing Mr. Berendson and the child at the beach. Her evidence suggested that she travels to Peru annually. It was not clear from this witness’ evidence how many times she saw Mr. Berendson together with the child and if she saw them each year that she visited Peru. When the witness did observe Mr. Berendson and the child it was not a planned meeting but rather a casual encounter occurring for example when she went for a walk on the beach. I do accept this witness’ evidence that she observed Mr. Berendson playing with the child in a creative way and that the child was laughing. The witness never observed any interaction between Mr. Berendson and the child that raised any concerns. I conclude that this witness observed positive interactions between Mr. Berendson and the child in Peru, but that the witness’ observations were not frequent.
7. CREDIBILITY – THE PARTIES
66Ms. Izquierdo testified in a straight-forward manner, including during cross-examination. While at times Ms. Izquierdo was non-responsive to the question posed, or attempted to provide unnecessary detail, I find overall that that did not impact Ms. Izquierdo’s credibility and reliability.
67I find that Ms. Izquierdo was an honest witness, doing her best to explain to the court what she perceived to be the relevant factual background. During her examination-in-chief, Ms. Izquierdo admitted that she had been sanctioned by the courts in Peru for her behaviour on some occasions in failing to have the child ready for visits with his father.
68Regarding Mr. Berendson, there was a palpable dichotomy as to Mr. Berendson’s presentation in the witness stand. When giving evidence relating to non-controversial matters, including particularly during his evidence-in-chief, Mr. Berendson generally was a reliable witness. This included testimony about his family’s background, his experience living with a family in the United States as an exchange student, his varied work experience and his activities and experiences while living in Canada.
69However, when confronted with controversial topics, and in particular topics focusing on his impugned behaviour, Mr. Berendson’s presentation and credibility were transformed. Mr. Berendson disliked any line of questioning that portrayed him in a negative light. He became argumentative and non-responsive; he falsely accused the questioner of bullying him; he made attempts to engage the questioner in an argumentative dialogue; when presented with an English translation of a Spanish document, Mr. Berendson deflected questions about the content of the English translation, demanding to see the Spanish version, claiming he did not trust the translator, even though the court had made a ruling on a voire dire that the translator was competent and qualified to translate from Spanish to English (the issue pertaining to the translator is discussed later); he gave answers that were sarcastic or at times outlandish when pressed to explain his behaviour; Mr. Berendson was adept at employing prevarication to avoid answering questions that he did not like; and despite having demonstrated an impressive memory when testifying about many details relating to his upbringing and work history, Mr. Berendson would profess, unconvincingly, that he could not remember when presented with a question that he preferred not to answer.
70Mr. Berendson was neither a credible nor reliable witness during much of his cross-examination, and in particular relating to his behaviour and conduct underpinning the allegations of family violence. There were occasions when Mr. Berendson lied brazenly to the court while in the witness stand.
71Unless otherwise indicated in these reasons, I prefer and accept the evidence of Ms. Izquierdo and her witnesses where their evidence conflicts with Mr. Berendson’s evidence. On issues relating to allegations of family violence inflicted by Mr. Berendson and its effect on Ms. Izquierdo and others, I find that Mr. Berendson’s evidence generally is not worthy of belief.
72The reasons below contain a number of specific examples relating to conflicting evidence and findings of credibility.
73An example of Mr. Berendson’s obfuscation during cross-examination related to a proceeding conducted in Peru in the Piura Superior Court of Justice on August 12, 2022.15 That proceeding was identified as involving family violence. Mr. Berendson and Ms. Izquierdo were listed as defendants. Mr. Berendson attended the hearing; Ms. Izquierdo did not attend the hearing. Mr. Berendson was described as responding to questions “after taking the oath.” The hearing appears to have been conducted virtually.
74During cross-examination by the applicant’s counsel in this trial, Mr. Berendson was directed to his evidence at the hearing in Peru where he testified that he is trying to locate his son who has been missing since 2019 along with his mother; and that he does not know where they are, it might be Canada, but he has no precise address. Mr. Berendson was challenged on that evidence, it being suggested to him that he knew at the time of that hearing that Ms. Izquierdo and the child were in London, Ontario. Mr. Berendson responded, “I’m not sure.” Thereafter, Mr. Berendson dodged further questions on the topic of the hearing in Peru, demanding to see the Spanish version and claiming that he did not trust the English translation. It is noted that Mr. Berendson’s evidence to the Peruvian court also included a statement that he has not seen Ms. Izquierdo since 2019. Also, it is noted that the applicant’s exhibit brief containing the document regarding this hearing in Peru, including the Spanish version and the English translation, had been served on Mr. Berendson in November 2023.
75The foregoing evidence given by Mr. Berendson to the Peruvian court on August 12, 2022 was false. Mr. Berendson knew that Ms. Izquierdo and the child were in London, Ontario. He and Ms. Izquierdo had attended a lengthy trial in London regarding the Hague application that started on September 21, 2020 and ended February 17, 2021. Further, as discussed in more detail later in these reasons, Mr. Berendson had seen the child during some video visits occurring during the Hague application and shortly after the Hague application concluded. In addition, Mr. Berendson was able to physically see the child during an in-person supervised visit in London, Ontario, although that visit did not go well as discussed later in these reasons. Finally, approximately four months prior to the hearing in Peru, Mr. Berendson had posted a photo16 on social media of himself in a park near the child’s residence, with a poster containing a message in Spanish to the child. That occurrence is discussed in more detail later in these reasons where Mr. Berendson’s evidence is rejected that he did not know the area in London where the child was residing.
76It is apparent that Mr. Berendson’s dishonesty when testifying was not limited to the current trial in Ontario; he also has been dishonest when giving sworn evidence to the courts in Peru.
8. THE TRIAL – ITS LENGTH AND MR. BERENDSON’S BEHAVIOUR
i. Overview
77This trial was scheduled to commence in November 2023. It was adjourned to April 2024 as a result of Mr. Berendson’s counsel bringing a motion to be removed as counsel of record due to health issues.17
78This trial took significantly longer than estimated. Additional time was necessary because substantial portions of the evidence required interpreters. However, both parties spent too long in the witness stand. There were occasions when the court had to place and enforce limits on the testimony of the parties, and witnesses. I would add, for clarity, that the undue length of this trial was not attributable in any way to the OCL. During the trial, the court prohibited cellphones in the courtroom.18
79Both parties did assist by paring down their respective witness lists. For the applicant, as mentioned earlier, this included not calling two of her adult children as witnesses during the presentation of her case; the applicant did reserve the right to call those two witnesses in reply should circumstances require and that did occur as discussed in these reasons.
80There were aspects of Mr. Berendson’s behaviour during the trial that added to the delays. While Mr. Berendson’s behaviour included times when he was polite and respectful, there were occasions when his conduct was disruptive. Over the course of the trial, Mr. Berendson was prone to making impromptu statements that were not responsive to any evidentiary issues or any requests for submissions. Mr. Berendson complained about not feeling comfortable in the courtroom. He made unjustified complaints about the lawyers; he made unfounded complaints about the location of courtroom cameras and what was being displayed on the courtroom computer screens; he questioned the presence of courtroom security officers asking why they were there and he made baseless complaints about the location in the courtroom where the security officers were seated.
81On one occasion, on the record, the court had to deal with a complaint from a male interpreter19 about Mr. Berendson’s behaviour while they were both in the washroom during a recess. Although Mr. Berendson was apologetic, the court was required to spend time dealing with this matter, and directing that there shall be no further communications with interpreters outside of the courtroom; as the trial continued however, it became necessary for the court to repeat that directive.
82On another occasion, prior to the court being called into session at the start of the day, there was an occurrence in the courtroom involving Mr. Berendson and a police officer, while others, including counsel, were present.20 This was referred to briefly, on the record, when the court was called into session. However, Mr. Berendson was not present in the courtroom and the trial had to be stood down while the registrar, on the court’s direction, emailed Mr. Berendson requiring his return so that the trial could continue.
83Later in the trial, during cross-examination by the OCL, Mr. Berendson had been asked about his proposal to have the child live with him for up to 90 days and how that would be enforced and whether the police would have to “drag” the child out. Mr. Berendson, ignoring the question, then gave his account of his interaction with the police officer claiming that he had been “dragged” out of the courtroom and he blamed OCL counsel for failing to intervene; it was that accusation against OCL counsel by Mr. Berendson that prompted OCL counsel to put a few questions to Mr. Berendson in cross-examination focusing on Mr. Berendson’s alleged improper behaviour during the police occurrence.
84It is beyond the scope of this trial to delve into any inquiry as to what had occurred in the courtroom while the court was not in session. Any search for the truth regarding this incident would require witnesses who were present, including police, to give evidence and to be cross-examined. The OCL properly refrained from any further cross-examination regarding this matter which had been raised by Mr. Berendson and was not responsive to the question he was asked. Accordingly, I make no finding as to what occurred between Mr. Berendson and the police in the courtroom while the court was not in session. This matter however did result in the trial being delayed due to Mr. Berendson not being present when court resumed.
ii. Mr. Berendson’s Documentary Evidence
85Mr. Berendson failed to comply with the court-ordered deadline that required both parties and the OCL to serve and file with the court prior to trial all documents to be relied on; and the documents once filed with the court and accepted by the court, then could be uploaded to CaseLines.21
86When the trial started, counsel were not aware of the documents Mr. Berendson intended to rely on because of his failure to serve, and then file the documents with the court with proof of service. Ms. Izquierdo had to begin her evidence without knowing the extent of Mr. Berendson’s proposed documentary evidence.
87Mr. Berendson’s approach was to upload documents into CaseLines without first properly serving and filing the documents with proof of service, and without waiting for confirmation from the court that the documents were properly filed before loading them into CaseLines. It was not possible for counsel to assist Mr. Berendson by reviewing his documents in CaseLines, even if not properly served and filed with the court, with a view perhaps to consenting to the admission of some documents, because Mr. Berendson was loading pages of documents into CaseLines by the thousands.
88Approximately halfway during the trial, the court noted that Mr. Berendson’s documentary disclosure process was chaotic; that he had at that point, loaded over 383 documents into CaseLines totalling over 5,300 pages. Mr. Berendson claimed that there was no prejudice to counsel because counsel allegedly were familiar with the documents in any event. However, that prompted valid objections from counsel, in particular the OCL, because the OCL had not been involved in the first trial. By the time this current trial was concluded, Mr. Berendson’s documents loaded into CaseLines exceeded 8,700 pages.
89Early during the trial, while the court was in session, Mr. Berendson purported to serve documents by handing each counsel a USB stick containing various documents. Understandably, this prompted valid objections, and caused more delay.
90Mr. Berendson had ample time to serve and file his documents properly given that the trial did not start in November 2023 and was adjourned, as noted earlier.
91Accommodations were made during the trial to allow Mr. Berendson to refer to some of his documents not properly served and filed. This included, for example, some videos of his interaction with the child that were filed as exhibits. Mr. Berendson had been most adamant that the videos were important.
92When Mr. Berendson was given an opportunity to file some of his documents as exhibits, notwithstanding his failure to serve and file all his documents prior to trial as ordered, the court gave specific direction to Mr. Berendson regarding the procedure to do so, including serving the intended exhibits on counsel within a specified time frame. Despite this accommodation, there were instances where Mr. Berendson failed to comply with the court’s direction. One such instance included Mr. Berendson’s failure to comply with the court’s direction relating to Mr. Berendson’s desire to file various photographs as exhibits.22
93The issue relating to Mr. Berendson’s documents caused ongoing delay and distraction, including requiring a voire dire. Mr. Berendson would attempt to refer witnesses to documents that he had uploaded to CaseLines but had failed to properly serve and file with the court. This would prompt justifiable objections from counsel and took up unnecessary trial time.
94Near the end of the trial, Mr. Berendson submitted that he had been blocked from CaseLines. He asked whether the judiciary had blocked him. Mr. Berendson was advised that that had not occurred. Mr. Berendson then was provided with contact information for CaseLines and the registrar was instructed to assist Mr. Berendson in that regard should Mr. Berendson request assistance.
95It is apparent that Mr. Berendson is adept at using a laptop. He testified, as noted later in these reasons, that he conducted computer workshops as part of his volunteer work. It is notable that Mr. Berendson provided no credible evidence, including from CaseLines, to corroborate his submission that he had been blocked from CaseLines.
iii. Mr. Berendson’s Written Closing Argument
96Mr. Berendson’s written closing argument submitted July 5, 2024 had appended to it various documents that were not in evidence. These documents included a letter, a London police records check and a court decision from Peru dated June 10, 2024.
97On July 12, 2024, when oral argument was heard, Mr. Berendson was given an opportunity to file additional written submissions limited to the issue of the applicant’s claim under s. 140 of the Courts of Justice Act, said submissions not to exceed 10 pages. Mr. Berendson failed to comply with this order. His written submissions with attachments totalled 73 pages and included submissions not related to s. 140. I have considered only submissions related to s. 140. Mr. Berendson also included affidavits and two decisions from the courts in Peru dated August 1, 2018 and September 3, 2019.
98The documents that Mr. Berendson appended to his written closing submissions including the letter, police records check and affidavits have not been considered because they are not included in the exhibits filed at trial. Any Peruvian court decisions appended to Mr. Berendson’s written submissions have not been considered, unless those decisions have been included in the exhibit briefs filed in this trial.
iv. Translation of Documents from Spanish to English
99The applicant’s two main exhibit briefs23 had been served and filed in November 2023, well in advance of this trial. These two exhibits contained various Spanish documents accompanied by translations into English. Many of the Spanish documents related to court proceedings, including criminal investigations, in Peru. Near the beginning of the trial, Mr. Berendson complained that the translator used by the applicant to translate documents from Spanish to English was not qualified to do the translations. The basis of Mr. Berendson’s complaint came from an email received by Mr. Berendson in November 2023 from the Association of Translators and Interpreters of Ontario (ATIO). As a result, a voire dire was held to determine whether the translator was properly qualified. It is sufficient for the purpose of these reasons to note that the translator was found to be qualified to do the translations. The court provided detailed reasons in the ruling on the voire dire, which included a finding that Mr. Berendson had not disclosed to counsel, prior to trial, any issue concerning the translations, notwithstanding that in November 2023 he had been in possession of the ATIO email and the two exhibit briefs that contained the Spanish documents and the translations.
100Throughout the trial, and despite the ruling on the voire dire, Mr. Berendson continued to deflect questions during cross-examination when he was shown a translated document; Mr. Berendson as noted earlier would complain that he did not trust the translator. Trial delays ensued because Mr. Berendson refused to accept the court’s ruling.
101Also noteworthy, is that despite being given an opportunity during the trial, Mr. Berendson failed to adduce any evidence that addressed, specifically, any instances where the applicant’s translator made errors translating documents from Spanish to English. This issue continuously raised by Mr. Berendson created unnecessary delays in the trial.
v. Conclusion
102While much of Mr. Berendson’s behaviour during the trial explained in part why the trial took longer than necessary, I do not take that behaviour into account when deciding the issues in this case, other than the issue related to s. 140 of the Courts of Justice Act.
9. PARENTING ORDERS MADE IN PERU
i. Overview
103At the court’s request, the applicant’s counsel served and filed, during the course of the trial, a brief24 containing the court orders made in Peru regarding parenting. The court’s request was necessary because after the trial started, Ms. Izquierdo made reference to some of these parenting orders, but the orders had not been filed as exhibits by either party. In addition, as noted earlier, Mr. Berendson was seeking recognition and enforcement of Peruvian orders pursuant to s. 41 of the Children’s Law Reform Act, but those orders had not been filed as exhibits. The contents of the proposed Peruvian court orders brief was discussed on the record and included some orders requested specifically by Mr. Berendson.
104The discussion on the record, during the trial, revealed some challenges regarding which translation to use pertaining to the three appeal decisions made in 2019 in the Superior Court of Justice of Piura, Second Civil Court. These three appeal decisions consisted of the main appeal decision dated April 17, 201925, followed by two brief decisions26 dated May 10, 2019 and June 28, 2019 containing corrections to the first decision.
105For each of those three decisions there were two sets of translations; one set of translations was from Peru and the other set of translations was from Ontario. The Peruvian court orders brief included both sets of translations for all three appellate court decisions. Submissions during this trial centered around the main appeal decision (Decision No. 2 dated April 17, 2019). The applicant’s counsel submitted during that during the Hague application trial that Mr. Berendson’s counsel had obtained the Ontario translation because of concerns for the accuracy of the Peruvian translation, and that the Ontario translation was relied on during that trial. Mr. Berendson did not dispute this submission.
106The applicant’s counsel further submitted that during the appeal to the Court of Appeal for Ontario, that Mr. Berendson who was self-represented, filed the Peruvian translation (of decision No. 2 dated April 17, 2019) rather than the Ontario translation relied on during the trial. Mr. Berendson did not dispute that submission. In its decision27, the Court of Appeal for Ontario summarized and relied on the Peruvian appellate court decision dated April 17, 2019 (Decision No. 2).
107Pursuant to an endorsement made during this trial28, it was ordered that the Ontario translation would be used for this trial for the Peruvian order dated April 17, 2019, and that the Peruvian translations would be used for the two remaining orders. The endorsement also provided a process to deal with any issues regarding the translations.29 However, none of the parties complied with the order as it related to rectifying any potential translation errors.
108The parties did identify, on consent, a translation error contained in the Ontario translation for the order dated April 17, 2019.30
ii. The Parenting Agreement and Order Made in 2014
109The parties, shortly after separation, had entered into a conciliation process where they agreed to a parenting arrangement. Thereafter the conciliation agreement was approved, by the First Family Court in Piura by order dated November 6, 2014.31
110The conciliation agreement approved by the court included the following:
a. Mother has custody of the child;
b. The father’s visitation schedule includes:
i. Tuesdays and Thursdays from 3:00 p.m. until 6:00 p.m.;
ii. Alternate weekends, each Saturday and Sunday from 9:30 a.m. until 6:00 p.m.;
iii. On weekends, the child will remain at the home of the paternal grandparents, but with prior coordination with the mother, the child can have special outings in the company of the father or paternal family;
iv. The child to spend Mother’s Day and Father’s Day with the mother and father, respectively, and December 24 with the mother and December 25 with the father; and
c. There was a provision for the father to pay monthly child support ($700 Sol) plus the father was solely responsible for all expenses for the child relating to “schooling and healthcare.”
111There was no indication in the conciliation agreement, and subsequent court order, that the parenting and child support provisions were other than final.
iii. Decision No. 4: Superior Court of Justice of Piura, Fourth Family Court of Piura dated August 1, 2018
112Following Ms. Izquierdo’s move to Lima, proceedings were initiated by both parties to change the existing order.
113The court made a decision that included the following:32
a. The court declared as partially founded the cautionary measure of temporary shared custody requested by Mr. Berendson with respect to temporary shared custody of the child;
b. The current alternate weekend visits on Saturdays and Sundays from 9:30 a.m. until 6:00 p.m. were to continue, with the child to stay in the home of the paternal grandparents unless prior arrangements are made with the mother for special outings with the father or the father’s relatives;
c. The existing arrangements for Father’s Day and Mother’s Day were continued as were the arrangements for the child to spend December 24 with the mother and December 25 with the father;
d. The visits were ordered to take place in Lima according to the father’s ability to travel as well as the child’s school schedule; and
e. A provision was added for the equal sharing of school holidays and summer holidays; also included was a provision requiring the mother to notify the father when she is away, so that the father can care for the child if he is available to travel to be with the child.
iv. Appeal Decisions: Superior Court of Justice of Piura, Second Civil Court
114The decision dated August 1, 2018 was appealed by both parties. There were also three other court orders that were appealed but those three appeal decisions are not relevant in regards to determining the status of the parenting order that was in place following the appeal decisions.
115The appeal decision dated April 17, 201933 upheld the decision dated August 1, 2018 to declare the cautionary measure of temporary shared custody (as had been requested by Mr. Berendson) on the following terms:
a. The alternate weekends, Saturday and Sunday from 9:30 a.m. to 6:00 p.m. were continued but without the requirement of having to spend time in the home of the paternal grandparents, but rather the visits can take place in their company outside of their home upon prior arrangement with the mother and special outings can be scheduled with the father or the father’s relatives;
b. There were provisions regarding special occasions including Father’s Day, Mother’s Day, father’s birthday and the child’s birthday;
c. Regarding Christmas, the child will spend December 24 with the mother and December 25 with the father but because of the distance between the father’s and child’s home, two more days were added to the father’s schedule;
d. There was a provision for equal sharing of school holidays between the parents including a provision that visits may occur anywhere in the country; and
e. A provision was included that the father can care for the child if he is able when the mother is away and not with the child.
116The second appeal decision was dated May 10, 2019.34 This order resulted from Mr. Berendson’s request to correct an error so that the visitation dates of Tuesday and Thursday from 3:00 p.m. to 6:00 p.m. were added to the visitation schedule. The appeal court corrected the error and restated in full the order made on April 17, 2019 which included the provision for Tuesday and Thursday visits.
117The third appeal decision was dated June 25, 2019.35 This order resulted from Mr. Berendson’s request to correct the order made May 10, 2019 because when the full order was restated, it did not include the reference to joint temporary custody, but rather referred to only a temporary visitation arrangement. The appeal court corrected this error and stated that the arrangement was joint temporary custody.
10. MR. BERENDSON’S FAMILY VIOLENCE IN PERU – FOCUSING ON USE OF SOCIAL MEDIA
i. Overview
118It is trite to observe that an individual who harbours evil intent can use social media for purposes of targeting, harassing and destroying peoples’ lives. In this lengthy trial, there was abundant evidence that Mr. Berendson did just that in relation to Ms. Izquierdo. Mr. Berendson’s use of social media also had deleterious effects on Ms. Izquierdo’s three adult children.
119The OCL characterized Mr. Berendson’s behaviour as a “reign of terror on the maternal family by father.”36 While condemnation in such strong language must be reserved for the most egregious of cases, I find on the evidence that this is such a case. Mr. Berendson’s behaviour is psychological abuse and constitutes family violence.
120What is striking and highly concerning about Mr. Berendson’s conduct in relation to his use of social media is that he made no effort to deny the behaviour, nor did he attempt to explain it. When cross-examining Ms. Izquierdo and her witnesses, Mr. Berendson did not challenge nor confront them in any meaningful way, if at all, about their evidence as to how Mr. Berendson’s social-media conduct affected them.
121Mr. Berendson’s written closing submissions37 do not contain any discussion about his impugned behaviour. During his oral closing submissions, Mr. Berendson feigned surprise and expressed concern that his behaviour was being addressed – a most disingenuous position, I find, given the many weeks of evidence heard by the court.
122The discussion of the evidence in this part of the reasons, and the immediately following part, focuses primarily on Mr. Berendson’s behaviour regarding social media, although in relation to Ms. Izquierdo’s daughter, J, the discussion also includes other aspects of Mr. Berendson’s treatment of J. Other family violence including physical violence, is discussed separately in these reasons.
123During the course of Mr. Berendson’s lengthy evidence-in-chief, the court encouraged and reminded Mr. Berendson, on multiple occasions, to ensure that he addressed the evidence that the applicant had put in relating to Mr. Berendson’s family violence, including his use of social media, his death threat, and physical violence including the fracture of Ms. Izquierdo’s finger.
ii. Ms. Izquierdo
124Ms. Izquierdo was married previously to Mr. Sandoval. As noted earlier, he is the father of her two eldest children, H and J.
125Ms. Izquierdo had married Mr. Sandoval in the earlier 1990s and had separated from Mr. Sandoval approximately five years later. Subsequently, Ms. Izquierdo started a relationship with Mr. Mimbela, D’s father. Ms. Izquierdo had not kept in touch with Mr. Sandoval. The last she knew was that he was living in southern Chile with his new family. Ms. Izquierdo explained that she and Mr. Mimbela had learned in or about 2005 that Mr. Sandoval was apparently deceased. They did some research to corroborate this – Ms. Izquierdo testified there was a medical and death certificate and a gravestone. It was Ms. Izquierdo’s understanding that Mr. Sandoval had died in 2004. However, Ms. Izquierdo was told by Mr. Berendson shortly after their separation that Mr. Sandoval was alive. Ms. Izquierdo testified she then learned that Mr. Sandoval had faked his own death.
126It was at this point that Mr. Berendson embarked on a long journey of intimidation and harassment of Ms. Izquierdo by accusing her of bigamy – that she had married Mr. Berendson knowing that Mr. Sandoval was alive. Mr. Berendson accused Ms. Izquierdo of colluding with Mr. Sandoval to fake his own death. Mr. Berendson instigated a criminal complaint process against Ms. Izquierdo in 2014 alleging bigamy. It was Ms. Izquierdo’s unchallenged evidence that criminal charges were not laid and that this criminal process was dismissed after a number of years. She also testified that Mr. Berendson appealed to the superior prosecutor who also dismissed the complaint. There was no credible evidence from Mr. Berendson challenging these assertions by Ms. Izquierdo. Furthermore, Mr. Berendson’s pursuit of criminal charges through the prosecutor’s office included a dismissal by the prosecutor’s office to re-open an appeal decision confirming the dismissal of the criminal complaint.38
127While discussing this criminal process instigated by Mr. Berendson, Ms. Izquierdo became emotionally overwrought in the witness stand.
128The fact that Mr. Sandoval had faked his own death was not at issue in this trial. The issue centered around Mr. Berendson’s campaign to portray Ms. Izquierdo as a bigamist, including doing so on a national level in Peru.
129Ms. Izquierdo worked as a lawyer in Peru. She was living in Piura when she was married to Mr. Berendson. At the time of separation, Ms. Izquierdo described herself as financially responsible not only for the child M but also for her other three children, D, J and H, who are were approximately ages 12, 17 and 20, respectively, when the parties separated.
130As a lawyer, Ms. Izquierdo worked in Piura as a government official for the municipal council in Piura. Mr. Berendson raised the bigamy issue while Ms. Izquierdo was working in Piura. Ms. Izquierdo testified that Mr. Berendson would bring documents addressed to the mayor and other elected authorities that contained complaints of bigamy against her. Mr. Berendson sought out journalists and articles were published, including Ms. Izquierdo’s picture, in a newspaper. As Ms. Izquierdo testified, she worked with politicians, and it presented for them an image problem to be seen with Ms. Izquierdo given the allegations being made against her by Mr. Berendson.
131I accept Ms. Izquierdo’s evidence, that as a consequence, she lost her employment in Piura. She testified, emotionally, that she had to leave Piura. She did so in early 2017 and secured new employment in Lima, which was approximately 1,000 kilometres from Piura. Ms. Izquierdo moved to Lima taking M with her. This move created significant acrimony between the parties and resulted in numerous additional court proceedings, including criminal complaints.
132Mr. Berendson elevated his social media attacks against Ms. Izquierdo to describe her also as a child abductor. (There is more discussion later in these reasons about the parenting-time issues that emanated as a consequence of Ms. Izquierdo’s move to Lima.)
133Ms. Izquierdo filed an exhibit brief that contained numerous social media posts from Mr. Berendson39. During the trial, in order to reduce the documentary evidence, Ms. Izquierdo agreed to rely only on certain documents contained in the social media brief, with the caveat that if it became necessary during the trial, then Ms. Izquierdo could request the court to rely on an excluded document.40 A similar process was utilized by Ms. Izquierdo regarding her main exhibit brief.41 While it is not necessary to discuss in detail the entire contents of the applicant’s social media brief, these reasons do make reference to some specific social media postings, in particular the ones discussed by Ms. Izquierdo in her evidence. Where indicated, some specific social media postings are filed also as separate exhibits.
134In early 2017, Ms. Izquierdo did obtain employment in Lima; however, Mr. Berendson, according to her evidence, had contact with her employer in Lima. Ms. Izquierdo testified that her boss showed her his cellphone with a telephone number on it to confirm that he had had contact with Mr. Berendson. Also, Mr. Berendson testified that he did speak to Ms. Izquierdo’s boss. Ms. Izquierdo’s boss did not testify, and hence, statements made by him to Ms. Izquierdo as to his conversation with Mr. Berendson are not admissible for the truth of those statements.
135However, Mr. Berendson did admit that he told Ms. Izquierdo’s boss that Ms. Izquierdo had just abducted their son from Piura. Mr. Berendson also admitted he was asked, “What is happening with this dead man being alive?” Mr. Berendson testified he responded that that was not his problem. Given Mr. Berendson’s extensive campaign regarding the bigamy accusations against Ms. Izquierdo, it is difficult to accept Mr. Berendson’s evidence that his statement was limited to this issue not being his problem.
136It was Ms. Izquierdo’s testimony that around June 2017, a show was broadcast on television on a national level that dealt with the “bigamy” allegations Mr. Berendson had been making against her.
137Ms. Izquierdo gave evidence about some specific social media posts made by Mr. Berendson. As an example, on Mr. Berendson’s YouTube account, there were four screenshots showing four videos.42 The videos are of various lengths as shown in the screenshots. One video screenshot shows Ms. Izquierdo with the caption “Breach of visitation regime.” Another screenshot video has the caption “Bigamy” followed by Ms. Izquierdo’s name. Another video has the caption “Piura man who was not dead.” Ms. Izquierdo identified that two specific videos discuss the bigamy allegations. It was also Ms. Izquierdo’s evidence that one of the videos in this YouTube post, specifically the video shown to have a length of 10 minutes and 30 seconds, was the subject of broadcast on a national level in Peru.
138Ms. Izquierdo testified that she was not doing well on the day following the national broadcast about her. She had arranged for a lawyer to come to her home that day to discuss that broadcast. While she was meeting with the lawyer, Mr. Berendson attended at her home in Lima with two police officers, indicating he was there to exercise his parenting time with the child. I accept Ms. Izquierdo’s evidence that she did not know that Mr. Berendson was coming to Lima. She testified that he just showed up with the police officers. It was Ms. Izquierdo’s evidence that Mr. Berendson was not there to exercise parenting time but rather to mock her, and to show her how powerful he was in promoting a broadcast on a national level and then showing up at her home as if nothing had happened.
139Mr. Berendson did not specifically address this occurrence in his evidence nor did he question Ms. Izquierdo about it during his cross-examination. However, Mr. Berendson did post a message on his YouTube account.43 In this message, Mr. Berendson complains that Ms. Izquierdo failed to comply with the visitation regime. He also accuses Ms. Izquierdo of being under the influence of drugs that day.
140I prefer and accept Ms. Izquierdo’s evidence as to what happened the day following the broadcast rather than the information posted by Mr. Berendson in his YouTube account.
141Mr. Berendson also made social media posts as follows:
a. Mr. Berendson made a social media post where he referred to a report being broadcast on television featuring a man who “played dead” for seven years; this social media post mentioned Ms. Izquierdo by name44.
b. Ms. Izquierdo referred to a Facebook post45 by Mr. Berendson describing a television show called, in Spanish, “Rey con Barba”, and giving the time that the show was being broadcast and encouraging readers not to miss it. It was Ms. Izquierdo’s evidence that during the television show, Mr. Berendson portrayed her as a bigamist; Mr. Berendson did not contradict this evidence at trial. This social media post also includes a photo of Ms. Izquierdo sitting beside the mayor at a council meeting in Piura.
c. On his Facebook account46, Mr. Berendson shared a screenshot from YouTube. Ms. Izquierdo testified that the screenshot contains a photo of her. The description beside the photograph identifies Ms. Izquierdo as a lawyer, refers to bigamy in Peru, and also includes mention of non-compliance with a visitation regime. It was Ms. Izquierdo’s uncontradicted evidence that the screenshot was about another newscast report about her;
d. On July 17, 2017, Mr. Berendson posted a statement on his YouTube account47 referring to a program that was broadcast that day. Mr. Berendson’s statement identifies Ms. Izquierdo as a lawyer and speaks to her complicity in faking Mr. Sandoval’s death. There is reference also to Ms. Izquierdo not complying with the court-ordered visitation schedule. This post includes a YouTube link to the “Rey con Barba” broadcast;
e. In a Facebook post48, Mr. Berendson identifies Ms. Izquierdo as a lawyer and asks how long she will continue with her lies. Mr. Berendson then includes a quote from Joseph Goebbels, described by Mr. Berendson as the minister in charge of propaganda for Adolf Hitler’s government in Nazi Germany. The alleged quote refers to repeating a lie often enough and it becomes the truth. Mr. Berendson’s use of this alleged quote is both offensive and ironic. It is offensive because of its reference to the Nazi regime. It is ironic given Mr. Berendson’s own behaviour in propagating unfounded conspiracy theories portraying Ms. Izquierdo as a bigamist. That same Facebook post also includes a screenshot from a program described as “Bigamy–Part 2” naming Ms. Izquierdo, describing her as a lawyer and giving the date that the program was aired.
142After losing her job in Piura, it was Ms. Izquierdo’s evidence that her contract in Lima was not renewed.
143I accept Ms. Izquierdo’s evidence explaining how she was affected by Mr. Berendson’s accusations. Ms. Izquierdo’s description of her suffering, including emotional and psychological suffering, was compelling. I found Ms. Izquierdo’s evidence to be credible, reliable and trustworthy. She was affected financially. The child M, and also her other children, witnessed her suffering which, in turn, affected them emotionally. As a lawyer, Ms. Izquierdo prided herself in her professionalism. She gave evidence in a most poignant manner about losing her job, losing her dignity, and enduring emotional suffering.
144The evidentiary record supports the conclusion which I make, that the bigamy allegations against Ms. Izquierdo were contrived and baseless. Mr. Berendson pursued these allegations with the intent of harming Ms. Izquierdo. Ms. Izquierdo’s evidence that Mr. Berendson was the driving force behind escalating those allegations into a national news story was not challenged by Mr. Berendson during his cross-examination of Ms. Izquierdo nor did Mr. Berendson make any effort to contradict this testimony during his evidence.
145Ms. Izquierdo initiated a complaint against Mr. Berendson regarding the bigamy allegations. In a document relied on by Ms. Izquierdo from the Superior Court of Justice in Lima, dated December 19, 2018, Mr. Berendson was sentenced after having been found guilty of slander and aggravated damages in relation to the bigamy allegations made against Ms. Izquierdo.49 While this document does corroborate Ms. Izquierdo’s testimony, there is sufficient evidence apart from this document to support the aforementioned findings that the bigamy allegations were contrived and baseless. It is noted that Ms. Izquierdo’s documents included a copy of Mr. Berendson’s appeal of this decision.50 However, there was no evidence as to the disposition of the appeal.
146After Ms. Izquierdo moved to Lima with the child, she testified that Mr. Berendson initiated a criminal complaint of abduction against her and her mother, and also alleged that her three other children were accomplices. The prosecutor’s office in Peru released a decision dated May 4, 201751 dismissing these allegations, including making a finding that Ms. Izquierdo had legal custody of the child.
147When cross-examined by Ms. Izquierdo’s counsel, Mr. Berendson agreed that the kidnapping complaint had been dismissed and that the finding was made that Ms. Izquierdo did not kidnap the child.
148Throughout the course of this trial, Mr. Berendson consistently, whether in his evidence or during submissions, referred to Ms. Izquierdo moving with the child to Lima as an “abduction” or “the first abduction”. Mr. Berendson continued deliberately to use this misleading description despite the dismissal of his kidnapping complaints by the prosecutor’s office. Mr. Berendson’s branding of the move to Lima as an abduction was unjustified, and was part of his campaign of psychological abuse of Ms. Izquierdo and also her adult children.
iii. J – Ms. Izquierdo’s Adult Daughter
149As indicated earlier, J testified remotely from Lima, Peru. She was a credible and reliable witness and in particular gave compelling evidence regarding Mr. Berendson’s behaviour, including his use of social media, and how his behaviour affected her and members of her family. J’s testimony was not shaken in any way by Mr. Berendson during cross-examination; and in his own evidence, Mr. Berendson failed to address J’s evidence that was critical of his behaviour.
150I accept J’s evidence, summarized below as being credible, trustworthy and reliable.
151J resides in Peru. She is a general physician; having graduated recently, J indicated at the time of trial that she was not yet working.
152When Mr. Berendson first started living with her family, J was quite fond of Mr. Berendson, describing him as a very nice person. Mr. Berendson treated her well, including taking her on various outings and activities that she enjoyed. She then described Mr. Berendson as having had a radical change in the way he treated her, her mother and members of her family. J moved from Piura in 2014 to attend university. However, in the initial years, she would return to Piura to visit one or two times per month, in addition to visiting during holidays and vacation. When J’s mother moved to Lima in 2017, J resumed living with her mother.
153J described being stalked by Mr. Berendson. When she returned to Piura to visit, it was her evidence that she was afraid to go out in the street. Mr. Berendson would follow her and yell at her. She described walking many blocks but he was still there. J testified that the harassment was not only in person but also on social media. Mr. Berendson would publish pictures of her and images of her family, speaking badly about them.
154It was J’s evidence that Mr. Berendson contacted her friends’ parents or families of her ex-partners to make derogatory comments about her. J described this harassment as continuing for six or seven years until her mother left the country.
155J testified that Mr. Berendson accused her of being a criminal in relation to the kidnapping allegations. During the initial years after her mother left Peru, J described Mr. Berendson as constantly posting on social media about her family. This included publishing pictures of her – including a picture J had previously taken showing J and the child M outside of the university she was attending. Mr. Berendson’s social media posts stated this was the last place where the child was seen.
156Mr. Berendson in his social media posts “tagged” the university with pictures of her, saying she was a medical student at the university, that she was a criminal and had kidnapped Mr. Berendson’s son.
157J also received copies of the social media posts from friends; J explained that these posts were available to people who were students at the university. It was J’s description that Mr. Berendson successfully defamed her.
158In relation to her evidence of being followed by Mr. Berendson, J testified that Mr. Berendson would videorecord her. She described Mr. Berendson as yelling at her, insulting her, and making arm and hand gestures directed at her. She testified specifically about Mr. Berendson gesturing at her with the middle finger of his hand, as an insult directed at her, and Mr. Berendson making a gesture of moving his hand across his neck.
159During cross-examination by the OCL, J testified about statements made by Mr. Berendson to her in front of the child. On one such occasion, Mr. Berendson called her a drug addict and an alcoholic, and on another such occasion, Mr. Berendson insulted her by making comments implying that she was looking for men. J was asked about Mr. Sandoval, her biological father, who had faked his own death. J recalled being quite young when she was told that her father had died. In 2014, she learned he was alive.
160It was J’s evidence that Mr. Berendson mocked her that Mr. Sandoval was not dead; that Mr. Berendson told J that Mr. Sandoval faked his death because he did not love her; that Mr. Berendson accused J and her mother of being criminals, knowing that Mr. Sandoval was not dead. J testified that she had no knowledge Mr. Sandoval was alive until receiving that information in 2014.
161J confirmed that when she visited Piura, that the bigamy allegations against her mother were in newspapers, on the radio, and on television. After her mother moved to Lima, J confirmed that the bigamy allegations were the subject of national news coverage, that Mr. Berendson was featured in the story portraying her mother as a bigamist.
162Although the national news coverage did not identify Ms. Izquierdo’s children by name, it was J’s evidence that Mr. Berendson through his social media postings would share the national news coverage and would state, by name, that J, her mother, her now-adult siblings and her grandparents were all involved. This included publishing pictures of J. On a Facebook page, Mr. Berendson shared the national news story and talked about J and her family, saying that they were all accomplices. J also testified about the ridicule that her mother was subjected to by people who were friends of Mr. Berendson, including derogatory and vulgar descriptions of her mother.
163Mr. Berendson’s accusations, his social media postings and the news coverage had significant effects on J. She testified feeling shame; she suffered anxiety and depression; she felt devastated; she sought therapy; at one point, she struggled, believing Mr. Berendson’s statements that her father (Mr. Sandoval) did not love her and chose to fake his death; she stopped visiting Piura for a period of time and lost relationships with her friends; due to her depression, she lost a lot of weight. She was in university and this caused her academic performance to deteriorate; for a period of time, J took medication to assist her in controlling her emotions. During cross-examination by the OCL, J described that in 2017, she had a serious relationship with her boyfriend; and that Mr. Berendson went to the office of her boyfriend’s mother showing her documents of the various allegations Mr. Berendson had made. J testified that this resulted in ending her relationship with her boyfriend. As a consequence, J testified that the child became very sad as he had enjoyed a loving relationship with J’s boyfriend. In relation to her weight loss, J testified that Mr. Berendson would mock her and say that she was bulimic. She recalled Mr. Berendson videotaping her and telling her to throw up. Mr. Berendson then uploaded that video to his YouTube account. J testified that this video was posted in 2017 and was there until approximately 2021. She assumed that Mr. Berendson removed the video as she had not been able to find it.
164Regarding the effect of Mr. Berendson’s conduct on her half-sibling D, J testified that he suffered serious depression and attempted suicide on one occasion.
165In relation to the child M, J explained that he could see how the family was suffering although he was too young to understand what Mr. Berendson was doing. She described the child as being intelligent enough to see the effect on the family.
166During cross-examination by the OCL, J added that she tried not to show the child how she was affected by Mr. Berendson’s conduct but that, at times, it was difficult for J and also her mother not to cry, and this would sadden the child.
167J’s evidence was passionate when she described how her mother was affected by Mr. Berendson’s conduct. J testified her mother suffered a lot. She had been a charismatic and happy person. Her persona and attitude changed. Her mother was sad, depressed, and lost her enjoyment of life. J testified that her mother wanted to stay strong for the child, but inside she was destroyed, very sad, and almost always crying in her bedroom. J testified that through all of her mother’s suffering, that her mother tried to do her best for her family. J stated that Mr. Berendson destroyed her mother’s life.
168During the time period of the events described by J, she was a young woman, ranging in age approximately from her late teen years to her early twenties. Considering that Mr. Berendson at one time was in a stepparent role to J, I find appalling the level of cruelty to which J was subjected. It is not an exaggeration to describe Mr. Berendson’s behaviour as harbouring sadistic overtones. Despite spending approximately ten days in the witness stand, Mr. Berendson offered no credible explanation, not even a hint, as to why he targeted J with his abusive behaviour.
iv. D – Ms. Izquierdo’s Youngest Adult Son
169As noted earlier, D, who is Ms. Izquierdo’s youngest adult son, was called by Ms. Izquierdo as a reply witness. As part of his case Mr. Berendson had denied that his behaviour caused harm to the people that the child loves. Further, as mentioned earlier, D’s father, Mr. Mimbela, was called as a witness by Mr. Berendson. During his testimony, Mr. Mimbela confirmed that D had attended a clinic in Peru, the suggestion having been made by Mr. Berendson during his questioning of Mr. Mimbela, that D’s attendance at the clinic was related to intoxication. D responded to both of those issues in reply.
170D’s evidence also covered other topics including Mr. Berendson’s aggressive behaviour at Ms. Izquierdo’s home after separation and Mr. Mimbela’s accusations of family violence perpetrated against him by Ms. Izquierdo. These portions of D’s evidence are discussed later in these reasons.
171D was a credible, reliable and trustworthy witness. I prefer D’s evidence where it conflicts with Mr. Berendson’s evidence.
172D described, during the years, living in terror that something may happen to him or his family. He spoke of coming home and seeing his mother crying. At one point, early during D’s evidence-in-chief, Mr. Berendson, most inappropriately, interrupted D’s evidence by asking whether the witness had been warned about perjury.
173D’s testimony as to Mr. Berendson’s conduct towards him and the effects of Mr. Berendson’s conduct included:
a. coming home from school in Piura, on numerous occasions and seeing the police there;
b. that he is afraid of cameras because of Mr. Berendson constantly using his cellphone camera in D’s presence;
c. describing himself feeling “humiliated” and “destroyed” and that he could not bring friends to his home;
d. that wherever D goes he carries with him images of Mr. Berendson screaming, his whistling and Mr. Berendson’s face;
e. not being able to walk without looking over his shoulder and feeling insecure;
f. attributing his feelings of insecurity to Mr. Berendson threatening him and publishing about him on social media;
g. that Mr. Berendson published D on social media using a photo of D at school wearing his school uniform, and mentioning his name; and that when asked how that made him feel, D stated, his voice breaking, that he felt horrible and humiliated;
h. that in 2019 D was in a clinic because of a suicide attempt, attributing the suicide attempt to his insecurity and not feeling safe at home or in school or anywhere because of Mr. Berendson’s conduct; and confirming also that he tried to hurt himself on another occasion;
i. when responding to the OCL’s cross-examination, as to whether the child was impacted by observing D’s reaction to Mr. Berendson’s conduct, D explained that although he tried to hide his sadness, that he would still cry in front of the child and the child tried to comfort him and that the child was aware of the reasons of D’s distress;
j. during cross-examination by Mr. Berendson, D referred to the exposure of his mother on national television, which D testified caused him to withdraw and hide; and
k. D described Mr. Berendson being physically aggressive with him.
174During portions of his testimony, particularly when describing Mr. Berendson’s behaviour, D became emotional, at times, crying. Mr. Berendson, during his cross-examination of D, tactlessly reminded D, that the day before, D had walked into the washroom at the courthouse while Mr. Berendson was in the washroom, and Mr. Berendson suggested to D that D stayed in the washroom, and that he did not run out or display any alarm or shock at seeing Mr. Berendson. This insensitive question elicited from D an intense, stentorian response where D testified that he was in shock, that he stayed in the stall and that he almost passed out. While giving this evidence, D was sobbing in the witness stand.
175D acknowledged, during cross-examination by Mr. Berendson, that as a child, he accompanied Mr. Berendson on various child-focused activities, including fishing, flying kites, visiting a salt mine, going to Lima to see paragliders and seeing scale-model airplanes. However, similar to J’s evidence, Mr. Berendson’s problematic behaviour described by D occurred after his mother separated from Mr. Berendson. D was approximately age 12 at that time.
176In response to question from the OCL, D indicated that Mr. Berendson never shared or explained to D his purpose in treating D the way that he did including why Mr. Berendson posted D’s picture wearing a school uniform.
177The evidentiary record supports the conclusion that D, like J, suffered significantly from Mr. Berendson’s abusive conduct. D’s suicide attempt also was part of J’s testimony. The foregoing conclusion that D suffered significantly from Mr. Berendson’s behaviour is supportable independently by other evidence including the testimony of Ms. Izquierdo and J. However, D’s testimony does serve to corroborate that other evidence.
v. H – Ms. Izquierdo’s eldest adult son
178H was called in reply to respond to Mr. Berendson’s accusation that H had shot Mr. Berendson during an alleged incident that had occurred prior to the parties’ separation, and to reply to Mr. Mimbela’s accusation against Ms. Izquierdo. In addition, H’s evidence included a reply to Mr. Berendson’s denial that Mr. Berendson had kicked open the door to Ms. Izquierdo’s residence after separation. The foregoing evidence is dealt with later in these reasons.
179H is a psychologist. He received his training in Peru. H’s evidence as to Mr. Berendson’s treatment of his mother, including the use of social media, was canvassed primarily during cross-examination including cross-examination by Mr. Berendson. H’s testimony regarding how Mr. Berendson’s conduct affected him was responsive to Mr. Berendson’s denial that his conduct affected people that the child loves.
180During cross-examination by the OCL, H testified that he was present when Mr. Berendson insulted members of his family, including his mother at parenting-time exchanges and in the presence of the child.
181H referred to Mr. Berendson’s social media posts insulting his sister, referring to her as a criminal as well as H, and making fun of H and his sister as the children of a dead man.
182During cross-examination by Mr. Berendson as to whether H had seen Mr. Berendson at the movies in Piura (apparently this occurrence being after Ms. Izquierdo had left Peru with the child), H acknowledged that he had seen Mr. Berendson on that occasion. H was accompanied, according to his evidence, with his partner at the time and also his father, Mr. Sandoval. In response to a somewhat accusatory question from Mr. Berendson about H’s alleged demeaner towards Mr. Berendson on that occasion, H gave an emotional response, telling the court that on that occasion Mr. Berendson caused him shame and embarrassment because Mr. Berendson started yelling, referring to H’s father as the “dead man” and making fun of his father in front of other people who were present, creating a spectacle, while at the same time video recording the occurrence. H explained that this was one of the few times that he had gone out with his father to get to know him a little better. It is unclear what Mr. Berendson sought to gain from broaching this topic during cross-examination.
183Later during cross-examination, Mr. Berendson ill-advisedly pressed H about the national news coverage, including whether H had seen his mother and his father on national television. H responded in part by telling Mr. Berendson that he had seen his parents on national television, and accused Mr. Berendson of publishing this on social media. At this point, H was very emotional and could not proceed any further. At this juncture of H’s cross-examination, Mr. Berendson had exceeded the extended time limit that had been given to him to complete H’s cross-examination.52 Further, H had exited the courtroom abruptly in a state of elevated emotional distress. As Mr. Berendson had exceeded the time limit, including an extension of the time limit, that had been given to him to complete H’s cross-examination, Mr. Berendson was advised that his cross-examination of H was over. I assess H’s evidence as described above as being credible, reliable and trustworthy.
11. MR. BERENDSON’S FAMILY VIOLENCE IN CANADA – FOCUSING ON USE OF SOCIAL MEDIA; MR. BERENDSON’S INAPPROPRIATE USE OF EMAILS
i. Interim Restraining Order and Interim Social Media Order
184In the current proceeding, MacLeod J. made two interim orders dated March 9, 2022 – an order prohibiting Mr. Berendson from posting about this case on social media53 (“the social media order”), and a restraining order against Mr. Berendson54 (“the restraining order”). Neither of these orders was appealed and they remain in effect. Although there was an earlier restraining order dated October 7, 202155, these reasons for judgment refer to the order made by MacLeod J. as it supplants the earlier order.
185The restraining order included the following provisions: (a) prohibiting Mr. Berendson from contacting, communicating directly or indirectly with Ms. Izquierdo, her partner and the child; (b) Mr. Berendson was not to come within 500 metres of the place of residence, school and workplace of Ms. Izquierdo, the child and Ms. Izquierdo’s partner at any time for any purpose; (c) Mr. Berendson was restrained from communicating directly or indirectly with Ms. Izquierdo, her partner and the child via email, social media, telephone or any other means except as may be specified in subsequent parenting orders; and (d) Mr. Berendson was not restrained in any way from communicating with Ms. Izquierdo’s counsel.
186Despite the exception to the non-communication provision via a subsequent parenting order, no interim parenting orders were made after the date of the restraining order.
187The social media order states that Mr. Berendson “… shall not make social media posts or publications of any manner which specifically name or identify [the child, the applicant or her partner] in connection with any litigation, past or present, involving the parents.”
ii. Mr. Berendson’s Behaviour Including Use of Emails
188There was evidence in this trial regarding Mr. Berendson’s inappropriate use of email communication, with some of the emails being used for the purpose of harassment and intimidation.
189An example of this is Mr. Berendson’s email to the Court of Appeal for Ontario56 sent December 1, 2022 at 12:38 a.m. This email includes the following statements made by Mr. Berendson in the body of the email:
a. “I cannot handle this anymore, is it a crime to love your son in Canada?”;
b. “I cannot take this anymore”;
c. There is reference to Mr. Berendson losing his father (child’s paternal grandfather) during the Hague application trial and that Mr. Berendson was not allowed to see his son to grieve with him; Mr. Berendson refers to losing his grandmother (the child’s paternal great grandmother) “yesterday”;
d. “We will just keep dying, it is not fair”;
e. “Should I expire to make things easier on the kidnappers?”;
f. “I cannot take this anymore” (this is the second time this phrase is used);
g. “This is killing my family and the ones that can put a stop to this are just ‘watching from the bleachers’ ”; and
h. “I cannot take this anymore. I am tired. I am 55. I don’t have much healthy time left.”
190There are photos of various people attached to the email including photos of the child and other persons, and a photo showing a room with flowers and notes attached to the flowers with a casket in the background.
191During cross-examination by the OCL about this email, Mr. Berendson was combative and provided answers that were not responsive to the questions asked. He acknowledged writing the email. He saw nothing wrong with the email. Mr. Berendson was asked whether the reference to “watching from the bleachers” was a reference to the London judiciary. He denied that but when asked who he was referring to he stated he did not know and to take it “as a poem.” The email was forwarded well after the Court of Appeal for Ontario rendered its decision in August 2022. Mr. Berendson acknowledged he had no ongoing proceeding before that court.
192Mr. Berendson was asked repeatedly why he sent this email to the Court of Appeal for Ontario. He responded because he felt like writing, adding that he shared the email with Justin Trudeau.
193The OCL counsel pressed Mr. Berendson whether he gave any thought in sending the email as to the potential impact it might have on the child. His facile response was that he did not send the email to any children, that the email was to “grown-ups”.
194The exhibit also includes an email from the judicial assistant from the Regional Senior Justice containing a message from the Regional Senior Justice to both parties’ counsel in this case. The message indicates that counsel are being forwarded a copy of Mr. Berendson’s email and attachments and refers to the content as concerning for reasons that will be obvious to counsel. In relation to Mr. Berendson evidence that this email message was sent to “grown-ups”, Mr. Berendson was asked whether he would agree that the grown-ups would include court staff who might be concerned about the contents of this email. Mr. Berendson’s cavalier response was that they never told him anything about their concerns and he suggested to OCL counsel that she is welcome to bring them to court and ask them.
195Mr. Berendson kept insisting that the child has nothing to do with this email and he brushed off all suggestions that he had any responsibility if there were some consequences to the child as a result of this email.
196In fact, there were consequences to the email.
197It was Ms. Izquierdo unchallenged evidence during cross-examination by the OCL that she received word from her lawyer, as a result of the email, to pick up the child from school for safety reasons. It was Ms. Izquierdo’s testimony that when she attended the school to pick up the child, that the child was scared and surprised. As part of the safety plan, the mother, her partner and child stayed in a hotel for almost five days and the child did not go to school. The mother indicated that the child was told that they would be away from the house for a few days.
198This incident demonstrates that Mr. Berendson has no boundaries as to whom he sends emails to and what he says in the emails. The contents of the email and the reference to death, and the photographs are disturbing. This email raises legitimate concerns about the state of Mr. Berendson’s mental health, his lack of judgment and his failure to recognize how his conduct can impact others including the child.
199The OCL was scheduled to present the OCL case on the morning of May 14, 2024. The OCL clinician was the scheduled witness. Shortly before court was scheduled to start that morning, Mr. Berendson forwarded an email57 to both OCL counsel and the applicant’s counsel containing three attachments, including an attachment described as the “Witness sworn declaration death threat”58 (the other two attachments59 are not relevant).
200The “Witness sworn declaration death threat” is a document in Spanish that was translated. Portions of the translation, and also the original Spanish version are redacted. In the statement, the deponent whose name is redacted, declares under oath that in the month of January 2020, that Mr. Berendson approached the deponent and asked whether the deponent knew where his son was. Because of the redactions it is not clear where the statement was taken but it appears to have been made and sworn in Peru. The date is July 21, 2020. The deponent responded no; the statement indicates that the deponent was scared because of how violently Mr. Berendson spoke to the deponent. The deponent stated that Mr. Berendson told the deponent that if Ms. Izquierdo does not give Mr. Berendson the child that he can kill Ms. Izquierdo and her partner because he will not allow his son to have a stepfather; Mr. Berendson also told the deponent that any time he has a chance that he will take the child and kill himself and the child. The deponent deposes being horrified by Mr. Berendson’s comments and in the statement further deposes that the deponent fears for “my life and integrity” if Mr. Berendson finds out the statement is made and the deponent asks that the deponent’s personal information be kept confidential to guarantee the deponent’s safety.
201It was suggested to Mr. Berendson by the OCL during cross-examination that the purpose of sending this document was to intimidate, warn and threaten both OCL counsel and the OCL witness. Mr. Berendson rejected that suggestion. His evidence included that this document was not his evidence but rather was a document obtained by Ms. Izquierdo for the Hague application trial. Mr. Berendson suggested that he was serving this document (and the other two documents) to file with the court.
202That explanation is not credible in the least. Earlier in the trial, Ms. Izquierdo testified that Ms. Berendson had told a witness (interviewed by the Ministry of Women and Vulnerable Population in Peru) about his threat to kill Ms. Izquierdo, the child and himself. Mr. Berendson promptly, and correctly, objected to this evidence as hearsay and his objection was sustained. The deponent of the death threat statement was not called as a witness in this trial and Ms. Izquierdo did not attempt to file any sworn statement from any deponent about Mr. Berendson making death threats.
203The death threat statement is an inadmissible document for the truth of its contents. Mr. Berendson knows that. It would be inconceivable that Mr. Berendson was intending to file this document with the court, as the document would be prejudicial to Mr. Berendson if filed as an exhibit for the truth of its contents.
204I find that Mr. Berendson had no intention to “serve and file” this document with the court; rather, Mr. Berendson emailed this document just prior to the start of the OCL’s evidence to scare, threaten or intimidate the OCL counsel and the OCL witness.
205Later that same morning, Mr. Berendson sent a further email60 to both counsel, just prior to the OCL witness starting her evidence. The subject of the email was “SERVING ONLINE REVIEWS OCL TO BE FILED.” The body of the email indicated “please find documents to be filed today to the court.”
206The email contained two attachments; one attachment61 was an online rating of the OCL witness who was about to testify and the other attachment62 was an online rating of the OCL counsel.
207During cross-examination by the OCL, Mr. Berendson was asked whether he had sent this further email that morning and he professed that he did not remember. When presented with the email he agreed that he sent the email. The ratings of the OCL witness were very negative and amounted to personal attacks. It was not clear who the authors were. When it was suggested to Mr. Berendson that the ratings for the OCL witness were uniformly bad, Mr. Berendson refused to agree and offered a disingenuous response that he will not judge. He gave a similar response to the suggestion that the ratings for the OCL counsel were positive and negative, but mostly negative. Mr. Berendson was asked what the purpose was of emailing those reviews. He claimed he wanted to bring them to the court’s attention – he wanted to “help the judge” as he put it.
208This response is quite unbelievable. Also, Mr. Berendson did not cross-examine the OCL witness regarding any online reviews, nor did he attempt to file any of the online reviews as exhibits. Had he done so, the online reviews would not fall into the category of admissible evidence. Also, documents that the parties were relying on for the trial had to be served prior to the trial pursuant to court orders made at the trial management conference.
209Mr. Berendson’s evidence that he allegedly sent these documents “to help the judge” is nonsense. Mr. Berendson sent the emails for the purpose of harassing and intimidating the OCL counsel and her witness.
210During the OCL’s cross-examination of Mr. Berendson on May 30, 2024, it was suggested to Mr. Berendson that earlier that morning, he had sent to OCL counsel and the applicant’s counsel excerpts from the OCL counsel’s Twitter account that included references to the OCL counsel’s deceased parents. Mr. Berendson testified that he sent an email to the OCL counsel that morning with a compilation of her social media entitled “Shit Show.” When it was suggested to Mr. Berendson that this email was sent for the purpose of intimidation and distraction, he responded that the purpose of the email was “to inform the judge.” Mr. Berendson then added that the document is in CaseLines and he began to instruct the OCL to open the document in CaseLines. The OCL counsel understandably did not oblige.
211Mr. Berendson’s behaviour in emailing a compilation of OCL counsel’s Twitter account that morning has only one conceivable purpose and that would be to annoy, distract, harass or intimidate OCL counsel. Mr. Berendson’s behaviour including the label he attached to the compilation also is disturbing because it is evidence that Mr. Berendson’s propensity to harass and intimidate is not restricted to Ms. Izquierdo and members of the maternal family.
212The process of litigating in this court, does not include deliberate and willful acts designed to harass and disparage counsel for the opposing side. Mr. Berendson’s ill-mannered behaviour does not assist him when assessing credibility.
iii. Mr. Berendson’s Use of Social Media in Canada
213Mr. Berendson continued his regular use of social media in Canada to publicize this case which included his view of his unjust treatment. Examples are included the applicant’s social media brief.63 It is not necessary to discuss specifically the various social media postings as they speak for themselves. The discussion below however does include a reference to some of the social media posts that were subject of testimony during the trial.
214I accept Ms. Izquierdo’s evidence that the child was negatively affected by the social media posts. On one occasion after coming home from school, the child spoke about a friend “googling” them and the child asked why it stated that he was kidnapped.
215Ms. Izquierdo gave evidence unchallenged by Mr. Berendson that he had tampered with the Facebook page for the child’s school such that a picture of Mr. Berendson and the child appeared in the school’s profile. As a result, the school principal contacted Ms. Izquierdo expressing concern and this resulted in a safety plan being implemented for the child.
216As a consequence, Mr. Berendson was blocked from the school’s Facebook page. This prompted Mr. Berendson on his “X” account (formerly Twitter) to post a message64 criticizing the school principal for blocking Mr. Berendson, telling the school principal this is not a Catholic way to act and not to play God (the child attends a Catholic school). There is a picture of Mr. Berendson and the child in this social media post and Mr. Berendson tagged the Catholic and public school boards with this post which was after the social media order.
217During cross-examination by the OCL, Mr. Berendson was asked whether he gave any thought as to how his posting, including photos, on the school website would affect the child in relation to his peers. Mr. Berendson’s response was to ask rhetorically whether he is a monster and he referred to evidence (discussed later in these reasons) where the child had a positive reaction when Mr. Berendson visited the child at his school in Peru.
218Mr. Berendson’s response demonstrated his continuing inability to consider how his conduct can negatively impact the child.
219Throughout the trial, on numerous occasions, Mr. Berendson accused Ms. Izquierdo’s counsel of being involved in an immigration scheme in collaboration with an immigration lawyer who Mr. Berendson identified by name. At other times, Mr. Berendson referred to the alleged scheme as immigration fraud. Mr. Berendson coined these phrases in relation to the refugee claim made in Canada by Ms. Izquierdo and also her partner.
220These allegations found there way into Mr. Berendson’s social media posts. In one post65, made after the social media order, Mr. Berendson posted a photo of the immigration lawyer stating in part that the lawyer was ruining the child’s life and that what the lawyer is doing is not legal. Consistent with Mr. Berendson’s habit, this post contained various tags including the Immigration and Refugee Board and the Law Society of Ontario. Mr. Berendson’s accusations of immigration fraud and immigration schemes fell into the realm of bald allegations. There was no evidence corroborating or substantiating these allegations. Rather, this was a tool used by Mr. Berendson to attack Ms. Izquierdo’s service providers – in this instance, her lawyer. In addition, Mr. Berendson testified during cross-examination that he has sued Ms. Izquierdo’s counsel for “defamation, libel” in small claims court.
221I accept Ms. Izquierdo’s evidence that Mr. Berendson targeted other service providers. In Peru, he filed complaints against four of Ms. Izquierdo’s lawyers with their professional regulatory bodies in Peru, with the result that they could no longer represent Ms. Izquierdo. Mr. Berendson did not contradict this evidence, but he did testify that he had instigated a process against one of the lawyers for bringing forth a “false witness”; however, there was no credible evidence corroborating that this complaint had any merit.
222Ms. Izquierdo received support from a local organization providing shelter, support and counselling for abused women and their children. It was Ms. Izquierdo’s unchallenged evidence that Mr. Berendson used social media to discredit the work of this organization and that he published the name of one of the persons working in that organization.
223The foregoing demonstrates that Mr. Berendson employed a strategy to target Ms. Izquierdo’s service providers as a means of harassment and intimidation.
224For his part, during the course of the trial, Mr. Berendson on various occasions, either through submissions or as part of his evidence, told the court that he was afraid of both Ms. Izquierdo’s counsel and the OCL counsel. These statements by Mr. Berendson are not believable, are not corroborated by any credible evidence and were made by Mr. Berendson for the sole purpose of enhancing a persona that he pursued assiduously throughout the course of the trial – that he was the victim.
225Mr. Berendson had posted a Spanish newspaper article from Peru dated April 27, 2023 on his Twitter account.66 In that article, Mr. Berendson is quoted discussing this case and the kidnapping of his son. In the caption under Mr. Berendson’s picture, the name is shown as “Carlos Berendson.” Mr. Berendson had no explanation why he was identified as Carlos; however, his correct name is stated in the body of the article. Mr. Berendson denied suggestions by Ms. Izquierdo’s counsel during cross-examination that this post was a violation of the social media order. The cross-examination devolved into a sparring match where Mr. Berendson was not credible and made multiple disingenuous statements resisting valid suggestions that this post was a violation of the social media order.
226In his social media posts, Mr. Berendson exhibits little or no restraint. In one social media post, referring to Hitler, Mr. Berendson states “right now in 2023” that people are using “Hitlerian practices” wanting to take away all his family, and Mr. Berendson refers to being in London, Ontario.67 When asked during cross-examination to explain the reference to Hitler, Mr. Berendson offered an unconvincing response that he was “venting.”
12. FAMILY VIOLENCE – MR. BERENDSON’S PHYSICAL AGGRESSION AND HARRASSMENT
227I am satisfied on the evidence that Mr. Berendson has been physically abusive towards Ms. Izquierdo. Some of those occurrences are described below.
228Ms. Izquierdo testified in detail about an incident that occurred prior to separation where Mr. Berendson began pulling Ms. Izquierdo out of their car, following an argument. Ms. Izquierdo held onto the car, but Mr. Berendson used the car door to hit Ms. Izquierdo’s hand that was gripping the car. Ms. Izquierdo suffered a fracture as a result of her hand being hit with the car door. Ms. Izquierdo’s testimony included that Mr. Berendson dragged her out of the car by her hair, that he threw her against some bicycles and then he left. One of Ms. Izquierdo’s fingers, as a result of being fractured, has a permanent deformity that Ms. Izquierdo described during her evidence. After being injured during that incident, Ms. Izquierdo had to rely on a friend to take her to the hospital.
229Ms. Izquierdo did not call the police. She testified she was embarrassed and did not want her family to know.
230Mr. Berendson referred to the “finger-breaking” incident and testified “I deny those allegations.” He also stated that he has never pulled Ms. Izquierdo’s hair. He did not otherwise specifically respond to Ms. Izquierdo’s detailed evidence regarding this incident.
231During the trial, the court’s various cautions to Mr. Berendson, during his evidence-in-chief, urging him to respond to allegations made against him, included specifically this allegation described by Ms. Izquierdo where she sustained a fracture to her finger.68
232I accept Ms. Izquierdo’s evidence that the foregoing incident occurred as she described. I do not believe Mr. Berendson’s evidence that he never pulled Ms. Izquierdo by her hair, nor do I believe his evidence denying the “finger-breaking” allegation.
233In 2015, there was the “pepper-spray incident” at Ms. Izquierdo’s home. Ms. Izquierdo had a number of guests at her home including her mother, and her daughter, J. Mr. Berendson arrived to return the child following his visit with the child. Both Ms. Izquierdo and J gave similar evidence as to what occurred. According to their evidence, Mr. Berendson unreasonably refused to hand the child over to either Ms. Izquierdo’s mother or J, demanding instead that Ms. Izquierdo receive the child personally. An altercation then ensued during which Mr. Berendson grabbed Ms. Izquierdo by the neck and pepper sprayed Ms. Izquierdo’s mother and one other guest. While the altercation was ongoing, J removed the child from the car.
234During Mr. Berendson’s testimony, he portrayed himself as a victim, claiming that a number of people who were at Ms. Izquierdo’s home charged at him and removed the child from the car. He said he pepper sprayed the husband of one of Ms. Izquierdo’s friends. Mr. Berendson claimed that his car was vandalized by Ms. Izquierdo, her mother and others.
235Mr. Berendson did not dispute Ms. Izquierdo’s evidence that for a number of years afterwards that he had pursued a criminal process against Ms. Izquierdo, her daughter, her mother and others as a result of that incident, and that eventually the criminal complaint was dismissed.
236While I accept Mr. Berendson’s evidence that he pepper sprayed one of the guests, I do not believe the rest of Mr. Berendson’s evidence regarding this incident. He offered no explanation as to why people would allegedly charge at him just because he was returning the child after a visit. I prefer the evidence of Ms. Izquierdo and J. I find that Mr. Berendson precipitated this incident with his aggressive and unreasonable behaviour.
237Mr. Berendson testified during cross-examination by Ms. Izquierdo’s counsel that after separation he only attended at Ms. Izquierdo’s residence for visitation purposes, and nothing more and that he never entered her house again. However, there was an incident that occurred on October 23, 2015 in Piura, described by both D and H, which contradicts Mr. Berendson’s evidence. This date is confirmed by a police report noting complaints made to police that day.69 The allegation was that Mr. Berendson kicked open the door to Ms. Izquierdo’s residence.
238The relevance of the police report is to corroborate the date of the incident. Mr. Berendson was shown the report during cross-examination and did not take issue with the date of the occurrence. Mr. Berendson denied the suggestion during cross-examination that he had kicked open the door to Ms. Izquierdo’s residence.
239Notwithstanding Mr. Berendson’s denial, I prefer the evidence of H and D. Their evidence was consistent and discloses that Mr. Berendson attended at Ms. Izquierdo’s residence demanding to take the child. Ms. Izquierdo was not home at the time. Mr. Berendson was agitated, yelling and he began kicking the door and forced it open. H took the child to a different area of the home for safety. H and D’s maternal step-grandfather was called and he attended, and an altercation ensued between him and Mr. Berendson. H recalled specifically that this incident occurred on a Friday as he had plans to go out that day with some other people who also were present in the home when the incident occurred.
240It is important to note, as discussed earlier, that at the time there was an existing court order in Peru dealing with Mr. Berendson’s parenting time which did not include Fridays.
241Ms. Izquierdo testified that Mr. Berendson had forced her to have sexual relations without her consent. In his testimony, Mr. Berendson denied this allegation. Each party’s evidence on this issue was very brief and neither party cross-examined the other. The evidentiary record is insufficient to make a finding that Mr. Berendson’s family violence included sexual abuse as alleged by Ms. Izquierdo.
242The evidence at trial satisfies me, and I find as a fact, that while Ms. Izquierdo continued to reside in Piura, that Mr. Berendson repeatedly intimidated her and others in her home by attending at her home shouting, swearing, ringing the doorbell and kicking the door.
243In particular, Ms. Izquierdo testified that Mr. Berendson would manipulate a power meter, located outside near her home, disrupting electrical service to her house. Ms. Izquierdo stated this frightened the child.
244J added that she was present many times when Mr. Berendson came to the house with no reason to be there as it was not a visitation day and that he would repeatedly ring the doorbell, scaring her. Similar to Ms. Izquierdo’s evidence, J experienced an occasion when she was in the home with a female friend and Mr. Berendson cut the power service leaving the house in darkness.
245Mr. Berendson did not contradict the foregoing specific evidence relating to his ongoing attendances at Ms. Izquierdo’s home. Mr. Berendson’s immature behaviour defies rational explanation. It constitutes harassment and amounts to family violence.
246It is noted that Ms. Izquierdo obtained a restraining order dated May 5, 2017 in Peru against Mr. Berendson based on his conduct.70 Although I do not rely on this order in reaching the conclusion that Mr. Berendson engaged in behaviour amounting to harassment, the order does corroborate that in Peru Mr. Berendson’s behaviour attracted judicial sanctions.
247Ms. Izquierdo testified about an incident that occurred in February 2019, when the child was almost 6 years of age, at the beach house residence of the paternal grandmother in Peru. Ms. Izquierdo had brought the child for a visit as Mr. Berendson was there. While Ms. Izquierdo was saying goodbye to the child, Mr. Berendson grabbed the child from Ms. Izquierdo, ran through the house with the child, yelling at Ms. Izquierdo through a window. Mr. Berendson had only a towel around him. The towel fell off during the incident leaving Mr. Berendson naked. The child was crying and in significant emotional distress. At one point, Mr. Berendson locked himself and the child in a room. Eventually, the paternal grandmother was able to intervene and de-escalate the situation.
248It is salient that the child remembered this incident and recounted the incident to OCL counsel and the clinician. The child’s recollection is described in the affidavit of the OCL clinician.71 The child’s recall included his father being angry; having just a towel and then being naked; his father locking both of them in a room and his paternal grandmother intervening. More importantly, the child’s description included that he was very scared (the child’s statements to the OCL clinician were admitted into evidence for the truth of the statements as explained later in these reasons).
249Mr. Berendson’s response to OCL counsel’s cross-examination about the child’s recollection of this incident, was that the child’s recollection was made-up memory, made up by the OCL.
250Mr. Berendson’s bald assertion about a made-up memory by the OCL is not credible in the least. I accept Ms. Izquierdo’s evidence regarding this incident. I find that Mr. Berendson’s rather bizarre behaviour frightened the child and caused the child emotional upset. Mr. Berendson’s conduct raises questions about the state of his mental health and emotional stability at the time. I find that Mr. Berendson accepts no responsibility for his conduct. Although Ms. Izquierdo’s evidence is sufficient, I would add that her son H, who was also present, testified regarding this occurrence and his evidence corroborates Ms. Izquierdo’s evidence.
251Both parties recalled an incident involving a bus. The parties were in their car. Mr. Berendson was driving and the child was with them. Mr. Berendson did not dispute Ms. Izquierdo’s evidence that the child was approximately six or seven months old, and that the incident occurred prior to separation. At this point, the parties’ evidence diverges.
252Ms. Izquierdo testified that the bus driver had honked. Mr. Berendson stopped the car in the middle of the road and stepped out of the car. This caused the bus to stop. Mr. Berendson then took out his gun (which he always carried with him, according to Ms. Izquierdo) and placed the gun on top of the car. He then took a baseball bat out of the car and approached the bus driver’s window yelling and threatening the bus driver. Mr. Berendson then returned to the car and they left with Mr. Berendson driving in an erratic manner.
253Mr. Berendson testified that he did not remember exactly what the bus driver did, but when the bus stopped, so did Mr. Berendson. He approached the bus driver’s window asking him “why did you do that”, telling the bus driver, “that was a dangerous maneuver.” At this point, to Mr. Berendson’s surprise, Ms. Izquierdo exited the car holding the child and began brandishing his pistol that was in the car. She then handed the pistol to Mr. Berendson. There was no baseball bat according to Mr. Berendson. He stated he was shocked and embarrassed; they got back in their car and drove on.
254I prefer and accept Ms. Izquierdo’s evidence where it conflicts with Mr. Berendson’s evidence. The evidence in this trial has demonstrated that Mr. Berendson has had an issue with anger and aggressive behaviour. Also, Mr. Berendson testified initially that he could not remember exactly what the bus driver did, but later changed that narrative by allegedly asking the bus driver why he engaged in a dangerous maneuver. Mr. Berendson’s description as to what provoked the incident lacks consistency and is not credible.
255It is also concerning that Mr. Berendson engaged in this threatening behaviour in the presence of the child.
13. FAMILY VIOLENCE – MR. BERENDSON’S DEATH THREAT
256I turn to Ms. Izquierdo’s allegation that she received a death threat from Mr. Berendson. In her evidence-in-chief, Ms. Izquierdo addressed the death threat on two separate occasions. By way of context, a petition dated October 14, 201972 was filed in the Family Court of the Judicial District of Lima by the Ministry of Women and Vulnerable Population. This petition was filed on behalf of Ms. Izquierdo. The petition sought numerous protection measures against Mr. Berendson as a result of allegations of abuse against Ms. Izquierdo, the child M, and Ms. Izquierdo’s children, D and J. These allegations are described in the petition. The protective measures that were sought included a requirement that Mr. Berendson maintain a specified distance from the alleged victims, that Mr. Berendson’s permit to carry a firearm be suspended and that Mr. Berendson’s parenting time be suspended.
257Regarding Ms. Izquierdo’s evidence on the first occasion73, when asked whether Mr. Berendson threatened her directly, Ms. Izquierdo testified that he told her on several occasions that he was going to destroy her, that he would not stop until he would see her like a street dog and that Mr. Berendson would constantly threaten her over the phone and in person that “he was going to end me.”
258On the second occasion74 Ms. Izquierdo was referred specifically to the petition and was asked why she left Peru before the petition had been dealt with. Ms. Izquierdo testified that Mr. Berendson was upset about the petition, that he called her to insult her, that he “said curse words” and “at that moment he said he had to finish me.” Ms. Izquierdo added that the “death threats” he made on this occasion, caused her to go into “panic mode.” Ms. Izquierdo also was aware that Mr. Berendson had a permit to carry a firearm.
259Mr. Berendson forcefully denied that he ever made any death threats. His denial was a general statement; he did not address specifically the conversation that Ms. Izquierdo said they had following the filing of her petition.
260I find Ms. Izquierdo’s evidence regarding the death threat made by Mr. Berendson to be credible. I prefer her evidence over Mr. Berendson’s evidence. I do not believe Mr. Berendson’s evidence denying that he made a death threat.
14. FAMILY VIOLENCE – MR. BERENDSON’S ALLEGATION THAT HE WAS SHOT BY MS. IZQUIERDO’S SON, H
261Prior to separation, while Ms. Izquierdo was pregnant with the child, Mr. Berendson was shot while he and Ms. Izquierdo attended at the residence of Ms. Izquierdo’s mother. H and a number of other persons also were present.
262The gist of the significant factual dispute is that Mr. Berendson claims that H deliberately shot Mr. Berendson with a revolver. Both H and Ms. Izquierdo testified that Mr. Berendson accidentally shot himself with his own revolver while carelessly handling the revolver.
263This occurrence was first raised by Mr. Berendson during his examination-in-chief. By that time, Ms. Izquierdo had already put in her case. Mr. Berendson had not cross-examined Ms. Izquierdo regarding this incident even though he was aware that she had been present. While the failure to do so may have engaged the rule in Browne v. Dunn,75 no objection was taken. Instead, H and Ms. Izquierdo testified about this incident in reply.
264There was no dispute that Mr. Berendson and Ms. Izquierdo had gone for a visit to Ms. Izquierdo’s mother’s residence. It was Mr. Berendson’s evidence that Ms. Izquierdo and H engaged in an argument regarding H’s girlfriend and that H became angry and aggressive towards his mother. Mr. Berendson then warned H not to touch his mother. At this point, H pulled a revolver out of his backpack and shot at Mr. Berendson. Mr. Berendson had jumped and the bullet went through his left knee and lodged in his right leg. Mr. Berendson claimed this happened at the residence of Ms. Izquierdo’s mother, but outside.
265The evidence of Ms. Izquierdo and H was similar. There were a number of people in the house. Mr. Berendson was showing his revolver and discussing it. He began to handle it somewhat carelessly, prompting a warning from Ms. Izquierdo. At that moment, while the revolver was in Mr. Berendson’s possession, the revolver fired and Mr. Berendson sustained the injuries that he had described.
266There was no dispute that Mr. Berendson was taken to the hospital accompanied by Ms. Izquierdo and others who were at the house. On arrival at the hospital, they were directed to go to another hospital.
267While at the hospital, the police were called and attended. Mr. Berendson testified that he did not want H to go to jail so he showed the police officer his gun license and told the officer that he had accidentally shot himself while cleaning his gun.
268H indicated that he went to the hospital also, but left after his mother told him that Mr. Berendson was out of danger. It was not disputed that Mr. Berendson underwent surgery and that he eventually made a full recovery.
269Mr. Berendson agreed during cross-examination by Ms. Izquierdo’s counsel, that he went to the police approximately five years later, after Ms. Izquierdo had moved to Lima, to complain about the “attempted murder” by H. Mr. Berendson agreed that his criminal complaint was “dismissed.” Mr. Berendson also acknowledged that he went to the police in London, Ontario to revive the complaint against H after H arrived in London.
270During that same cross-examination, Mr. Berendson was reminded that when the incident occurred initially, that he had reported it as an accidental shooting. Mr. Berendson responded that that was not correct. He was reminded immediately a second time that he had reported to the police an accidental shooting. Mr. Berendson’s response was “no”, that he went to the emergency room and the police officer was there. Mr. Berendson was reminded promptly yet a third time that his report to the police was an accidental shooting. Mr. Berendson testified that he did not make any reports to the police.
271Mr. Berendson’s evidence that H shot him is not worthy of belief. I regard that evidence as a fabrication to harass H as part of Mr. Berendson’s anger after Ms. Izquierdo moved to Lima (being the “first abduction” according to Mr. Berendson). Mr. Berendson had cross-examined H extensively about this incident, asking detailed questions, including who was present in the house, and where, the layout of the furniture, where Mr. Berendson was seated and how Mr. Berendson shot himself. H recounted specifically that Mr. Berendson had asked H if he knew anything about weapons; that Mr. Berendson then showed H his gun, and H testified that at one point Mr. Berendson was twirling the gun on his finger. H’s evidence was consistent, credible and not shaken during cross-examination. Mr. Berendson created self-inflicted damage to his own credibility by refusing to acknowledge during cross-examination that he had reported this matter to the police, initially, as an accidental shooting.
272I accept and prefer H’s evidence that Mr. Berendson accidentally shot himself while carelessly handling his own revolver inside the home of Ms. Izquierdo’s mother. Although I am able to reach this conclusion based on H’s evidence, it is noted that his evidence was corroborated in all material aspects by Ms. Izquierdo’s credible evidence.
15. EVIDENCE OF MR. BERENDSON’S WITNESS, MR. RUBEN MIMBELA – INCLUDING FAMILY VIOLENCE ALLEGATIONS
273Mr. Mimbela was a member of the Peruvian air force. As noted previously, he testified from Peru and his testimony was in Spanish. As discussed earlier, Mr. Mimbela is Ms. Izquierdo’s former partner, and he is D’s father.
274Many of the topics pursued by Mr. Berendson during his examination-in-chief of Mr. Mimbela were of little, if any, relevance to the issues before the court and do not merit further discussion. Mr. Mimbela’s evidence-in-chief, stretching from the afternoon and taking up half of the following day, was much longer than it should have been as Mr. Berendson was preoccupied with an agenda that was of little assistance to the court.
275Regarding D, I accept Mr. Mimbela’s evidence that Mr. Berendson promoted telephone contact between D and Mr. Mimbela. However, during his examination-in-chief, Mr. Berendson asked Mr. Mimbela whether he recalled D going to a clinic in Lima for “some sort of intoxication.” In his response, Mr. Mimbela did confirm that D was at the clinic. Given the inuendo that D attended at the clinic related to “intoxication”, D, during his reply evidence addressed the reason that he was at the clinic, and as discussed earlier, that evidence was not helpful in the least to Mr. Berendson.
276Mr. Mimbela’s evidence included his observations of the interaction between Mr. Berendson and the child. Mr. Mimbela did not see anything unusual and did not witness the child being afraid of Mr. Berendson. Mr. Mimbela was not challenged on this evidence, and while I accept his evidence, it is noted that Mr. Mimbela’s observations of Mr. Berendson together with the child were infrequent and isolated.
277Regarding the family violence issue, Mr. Mimbela testified that Ms. Izquierdo during an argument took his pistol that he kept in his briefcase in a high place and that she pointed the pistol at him and pulled the trigger. However, no bullet came out because Ms. Izquierdo did not first take the necessary step, as explained by Mr. Mimbela, regarding the preparation of the gun’s chamber. Mr. Mimbela testified that this incident occurred in January 2010 at their former residence in Piura. During this incident, Mr. Mimbela took the gun away from Ms. Izquierdo. In addition, it was Mr. Mimbela’s evidence that Ms. Izquierdo caused window-damage to his car, that he drove the vehicle to the air base to clean out the broken glass and then he drove to Lima, a distance of approximately 1,000 kilometres. Mr. Mimbela testified that Ms. Izquierdo’s children were present during the altercation. He referred to D and H by name as being present.
278When Ms. Izquierdo first testified in this trial, Mr. Berendson never put this incident to Ms. Izquierdo during cross-examination as required by the rule in Browne v. Dunn, supra. However, no objection was taken to this evidence. Instead, Ms. Izquierdo was permitted to testify about this incident in reply.
279During cross-examination it was put to Mr. Mimbela that this incident never happened; but he rejected that suggestion.
280Ms. Izquierdo testified that she has never threatened anyone with a gun. She said that the incident described by Mr. Mimbela never happened. Ms. Izquierdo corroborated Mr. Mimbela’s evidence to the extent that he always stored his gun in his briefcase in a high place, but she added that the briefcase had a code on it and that she had no access to the code and was unable to open the briefcase. Ms. Izquierdo further testified that when the parties separated, that Mr. Mimbela already was living in Lima; that he had reconnected with his wife; and that Ms. Izquierdo had given him an ultimatum. This eventually resulted in Mr. Mimbela leaving their house and taking his belongings with him. Ms. Izquierdo testified that Mr. Mimbela drove his Jeep to the airport and then he drove his Toyota to Lima. She added that she was not present when Mr. Mimbela attended at the house taking his belongings and vehicles and also leaving her a note.
281During cross-examination, Mr. Mimbela testified that he had four vehicles that included a Jeep and a Toyota.
282Both H and D testified about this alleged incident in their reply evidence. H denied witnessing any occurrence where his mother either pointed a gun at Mr. Mimbela or was holding a gun. H also denied witnessing any incident where his mother damaged the windows of Mr. Mimbela’s car. D denied witnessing any occurrence where his mother pointed a gun at his father or damaged any windows of his vehicle, including during January 2010.
283I do not believe Mr. Mimbela. I accept and prefer Ms. Izquierdo’s evidence where it conflicts with Mr. Mimbela’s evidence, and I take into account the evidence of H and D which serves to provide some corroboration of Ms. Izquierdo’s evidence. Also, Mr. Mimbela agreed that he did have a Jeep and a Toyota vehicle, which were the vehicles identified by Ms. Izquierdo that Mr. Mimbela drove first to the air base and then to Lima.
284Finally, it is noteworthy that after failing to put this incident to Ms. Izquierdo when she first testified, that Mr. Berendson, while cross-examining Ms. Izquierdo during her reply evidence, elected not to cross-examine Ms. Izquierdo on her reply testimony regarding this incident.
16. THE CHILD – IN PERU
285The child was less than one year old when the parties separated; there is no dispute that Ms. Izquierdo has been the child’s primary caregiver. As a result of various court orders made in Peru, discussed previously, Mr. Berendson had a schedule of parenting time that in large measure was facilitated through the ongoing involvement of the child’s paternal grandmother with whom Ms. Izquierdo always maintained a positive and congenial relationship. This was the situation while Ms. Izquierdo and the child lived in Piura and later in Lima.
286I am satisfied on the evidence that the child usually would go to the maternal grandmother’s residence where Mr. Berendson would spend parenting time with the child. That was usually the case while Ms. Izquierdo lived in Piura. Ms. Izquierdo testified that Mr. Berendson did not exercise overnight parenting time and Mr. Berendson did not disagree with this evidence during his testimony. During his meeting with the OCL, Mr. Berendson agreed that there were no overnights since 2014; he claimed that he was not “permitted” to have overnights, and his reason for that was that he “just never changed it.”76
287Mr. Berendson described Ms. Izquierdo’s pregnancy as being high-risk and gave detailed evidence regarding the lengthy trip to Lima with Ms. Izquierdo, and also D, to ensure that Ms. Izquierdo received the best medical care during the child’s birth. Both parties were proud parents, thrilled with the arrival of their son. Mr. Berendson was a proud father for the first time.
288The evidence established that the child did enjoy various activities with Mr. Berendson. Mr. Berendson provided descriptions of these numerous activities with the child during his parenting time, and I accept Mr. Berendson’s evidence. Ms. Izquierdo also confirmed that there were visits that the child enjoyed.
289Mr. Berendson described in detail his visit at the child’s school in Lima in October 2018 and the child’s enthusiasm on seeing his father at the school and introducing his father to his classmates. Mr. Berendson’s attendance at the school was a surprise to the child and was made without Ms. Izquierdo’s knowledge. However, that does not diminish the child’s enthusiastic response when he saw his father. Although I am satisfied with Mr. Berendson’s testimony regarding this school visit, Mr. Berendson also provided a video of that visit which was filed as an exhibit77 and corroborated his testimony.
290Notwithstanding the child-focused and positive visits that took place, there was significant evidence in this trial regarding Mr. Berendson bringing the police when he came to pick up the child. This was very upsetting to the child. It scared him. The extent of Mr. Berendson’s use of the police cannot be overstated – it was significant. As some corroboration, in the petition previously referred to filed by the Ministry of Women and Vulnerable Population, there is a reference to 158 “police verifications.”78
291Ms. Izquierdo described the child’s reaction to the police being present. The child would become nervous, he would run around and squeeze his hands.
292J described the child as being scared, asking not to bring the police. J testified that Mr. Berendson would state in front of the police that he had attended to pick up the child earlier but that no one was home, so he returned with the police. However, Mr. Berendson had not been there previously, rather he arrived initially with the police. I accept J’s evidence in that regard.
293When Mr. Berendson arrived with the police, J described Mr. Berendson as yelling and making fun of her and always video recording. Ms. Izquierdo also testified about the constant video recording by Mr. Berendson.
294J mentioned occasions when she was in Piura that she would be home, and her mother would be at work. She did deliver the child to Mr. Berendson for his visit, but she described the child as angry and not wanting to go.
295After Ms. Izquierdo moved to Lima, given the approximate 1,000 kilometre distance from Piura where Mr. Berendson resided, there were ongoing issues regarding Mr. Berendson’s parenting time. I find as a fact that Mr. Berendson had a habit of just showing up at Ms. Izquierdo’s home, with no advance notice to Ms. Izquierdo, on one of his scheduled visitation dates. The regular parenting-time schedule no longer made sense given the distance between the parties; however, Mr. Berendson would arrive unannounced, frequently with the police, demanding his scheduled parenting time.
296J explained there were occasions when she would be at home in Lima and Mr. Berendson would arrive without notice. He would ring the doorbell incessantly, and that if the child was not there, he would return with the police. This also occurred on days that were not Mr. Berendson’s scheduled parenting time.
297For his part, Mr. Berendson denied yelling and other inappropriate behaviours attributed to him when attending for parenting time. I prefer the evidence of Ms. Izquierdo and J where it conflicts with Mr. Berendson’s evidence on this issue.
298I find that Mr. Berendson used the police to create a record of alleged non-compliance with court orders when he attended at Mr. Izquierdo’s residence in Lima without any prior notice regarding his intention to exercise his parenting time.
299Over the years there were occasions when Ms. Izquierdo failed to have the child available for visits; Ms. Izquierdo agreed she had been ordered to ensure compliance with the parenting schedule. However, the vast majority of the chaos and police presence at parenting-time exchanges was orchestrated deliberately by Mr. Berendson and was not in the child’s best interests.
300As in Piura, a number of successful visits occurred in Lima including when arrangements were made between Ms. Izquierdo and the paternal grandmother. However, the positive visits that occurred when Ms. Izquierdo was aware that Mr. Berendson was attending to exercise parenting time did not erase from the child’s memory the frightening and ongoing episodes when the police were present.
301Despite credible evidence to the contrary, Mr. Berendson testified without equivocation that the child was not afraid of the police. In support of this conclusion, Mr. Berendson testified about an occurrence in 2017 in Lima. I accept Mr. Berendson’s evidence that he attended at Ms. Izquierdo’s apartment to exercise parenting time but that Ms. Izquierdo and the child were not home. Mr. Berendson went to the police station and while returning with the police officer, walking on the sidewalk, Ms. Izquierdo pulled up in her vehicle and stopped. The child was in the vehicle in the back seat and Ms. Izquierdo’s mother was in the front seat. The child willingly held out his arms so that the police officer could lift the child out of the car through the window and place the child on the sidewalk. The child displayed no apprehension at the presence of the police officer and the child reacted affectionately towards Mr. Berendson. At Mr. Berendson’s request, the video of this event was marked as an exhibit.79 Although the video corroborates Mr. Berendson’s testimony, I do not view the video as necessary evidence because I was satisfied with Mr. Berendson’s oral testimony.
302The circumstances of this occasion, where the child was comfortable in the car with his mother and maternal grandmother and did not react negatively when seeing the police officer, do not retract from, or undermine, the significant probative evidence of the child’s emotional upset and angst because of police presence. Further, the child’s negative reaction to seeing police was part of the child’s disclosure to the OCL during interviews, as discussed in more detail later in these reasons.
303Ms. Izquierdo gave examples of the child’s behaviour during occasions in Peru when the child would refuse to attend a visit with Mr. Berendson. This would occur for example on occasions when the paternal grandmother was not present. The child would yell, cry and hang on to Ms. Izquierdo; he would say he did not want to go and would lean against the wall, his face covered by his hands while screaming; the child’s upset would lead to the child hitting both himself and Ms. Izquierdo. Mr. Berendson was described as being at the door witnessing this behaviour. There was no credible evidence from Mr. Berendson disputing this testimony about the child’s behaviour. I accept Ms. Izquierdo’s evidence. Further, as noted later in these reasons, the same behaviour was witnessed by staff at the supervised access centre in London, Ontario.
304I also accept Ms. Izquierdo’s evidence that while in Peru she arranged for the child to have therapy to assist him in dealing with these behaviours.
305I address an issue regarding blood tests. Although Ms. Izquierdo was responsible for the child’s healthcare, there is evidence that Mr. Berendson, without notice to Ms. Izquierdo, took the child for blood tests under the pretext that the child was not being fed properly. I am satisfied on the evidence that Ms. Izquierdo always was attentive to the child’s healthcare including nutrition; and that this unilateral conduct by Mr. Berendson, which caused upset to the child, was neither necessary nor in the child’s best interests.
17. THE CHILD – IN CANADA
i. The Child’s Parenting Time with Mr. Berendson
306There were a number of orders made during the Hague application that provided for Mr. Berendson to have parenting time with the child either in-person on a supervised basis, or remotely by way of video or telephone calls with some of those calls being supervised.80 The first order81 that was made in the Hague application provided for remote parenting time before Mr. Berendson had arrived in Canada. All of the in-person supervised visits are best described as dismal failures due to the child’s absolute refusal to participate in the visits despite the efforts of Ms. Izquierdo (when she was present) and the supervisor urging the child to participate.
307There were six attempts at in-person supervised visits. The first three visits were supervised by Brayden Services Inc. (“Brayden”) during the Hague application trial, and the last three visits were supervised by Merrymount Family Support and Crisis Centre (“Merrymount”) following the release of the trial decision in the Hague application. The evidence regarding the in-person supervised visits included the reports from Brayden82 and Merrymount83 filed as business records. A Spanish language interpreter was present for the Merrymount visits and the supervisor for the Brayden visits spoke Spanish.
308The first two Brayden visits were scheduled to occur at a restaurant and the third visit was to occur at a bowling alley. For all three visits the child’s refusal to participate in the visits reached such a heightened level that the supervisor decided against further attempts to force the visit. During the visits the child engaged in escalating emotional behaviour including crying and screaming. There was no actual engagement between the child and Mr. Berendson except during the second visit in the restaurant.
309During that visit, the child attended with the mother’s partner. While the child was inside the restaurant, Mr. Berendson walked in and the child started screaming that he did not want to see Mr. Berendson and for Mr. Berendson to get out. Mr. Berendson attempted to approach the child showing him some gifts that he brought but the child began walking around the restaurant moving chairs and flipping some chairs to the floor. Throughout the child was described as escalating and screaming without stopping, prompting the supervisor to end the visit.
310Regarding this visit, during cross-examination by the OCL, it was suggested to Mr. Berendson that the child started overturning tables and chairs. Mr. Berendson responded that that never happened. He did acknowledge that the child was upset and added “… he did not flip tables or nothing.” Mr. Berendson also disagreed with the suggestion that the child was “out of control”, responding that the child “was just not being him.” This evidence contradicts Mr. Berendson’s description during his interview with the OCL where Mr. Berendson described the child as “out of control” and “kicking chairs trying to flip tables.”84 I find that at trial, Mr. Berendson deliberately minimized the extent of the child’s behaviour on that occasion. Mr. Berendson’s evidence was not credible. Further, Mr. Berendson’s trial testimony is contradicted by the Braydon notes.
311During the three attempted visits at Merrymount, it was not possible to have the child engage at all with Mr. Berendson who was waiting in a different area of the building. Ms. Izquierdo brought the child each time. Ms. Izquierdo’s evidence is corroborated by the Merrymount notes. The child’s behaviours included refusing to enter the building, screaming, including on one occasion prolonged crying and screaming, running out of the building and hitting Ms. Izquierdo.
312I accept Ms. Izquierdo’s evidence that she encouraged the child to attend the in-person visits. She reassured the child that he would not be alone and that he would enjoy the visit. In attempting to minimize the child’s anxiety, on some occasions the child was not told in advance that he was going to a visit. Nothing worked. The child’s aversion to in-person visits was resolute. No amount of reasoning or persuasion, including by the supervisor, had any affect.
313Ms. Izquierdo described in detail her efforts to assist the child by arranging therapy for the child in London. The child attended for a number of appointments. The purpose for the therapy included assisting the child in dealing with his anxiety regarding visits with his father, including virtual visits. Ms. Izquierdo testified that the child, as a result of anxiety regarding the visits, engaged in aggressive behaviour and suffered physical symptoms such as ticks and blinking of his eyes. On one occasion the child said he wanted to kill himself. Those were additional reasons for arranging therapy for the child. Ms. Izquierdo was able to access some subsidies for the therapy, but at times she had to pay some of the costs herself. There was no financial assistance from Mr. Berendson for the therapy expense. Following an attempted visit, the child would display anger at Ms. Izquierdo and would accuse her of lying to him about going to the visit.
314Regarding the video and telephone calls, those efforts at parenting time generally did not go well. The child was resistive and reluctant. If Mr. Berendson called, and the phone was handed to the child, he would move away or throw the phone. I accept Ms. Izquierdo’s evidence that she took all reasonable measures to facilitate calls between the child and Mr. Berendson. Ms. Izquierdo did describe a few calls between the child and the paternal grandmother that were cordial.
315While the evidence was unclear as to how long the calls continued, Ms. Izquierdo estimated that the calls continued for two months. During his interview with the OCL, Mr. Berendson referred to the calls as not being pleasant, and that the child would refuse to talk to him. 85
ii. The Child’s Views and Preferences
316In compliance with the directive in the Hague appeal decision regarding involvement of the OCL, the case management judge made an order86 requiring the involvement of the OCL. The file was accepted by the OCL via appointment of counsel and a clinician to assist OCL counsel. The clinician was assigned to this case in October 2022.
317The role of the OCL in this case included assisting the court in providing evidence regarding the child’s views and preferences. The OCL clinician’s evidence consisted of two affidavits87 that summarized the interviews with the child and the parties. As noted earlier, the clinician also testified at trial remotely. As a result of some issues raised on behalf of Mr. Berendson, the clinician’s first affidavit was redacted to eliminate a number of paragraphs, and it is the redacted affidavit that the court relies on.
318The child was interviewed on four occasions88, the last time being approximately three months prior to the commencement of trial. Following a voire dire, a ruling was made that statements made by the child to the OCL clinician, and also to OCL counsel who was present at all interviews, were admissible as to the truth of the facts contained in the statements, based on necessity and threshold reliability. Absent this ruling, however, statements made by the child to the OCL indicative of the child’s state of mind would be admissible as an exception to hearsay rule: Ward v. Swan, 2009 22551 (ON SC), 2009 CarswellOnt 2435 (Ont. S.C.J.), at paras. 4-8.
319I am satisfied that the clinician’s evidence as to statements made by the child, and also statements made by each of the parents, to the clinician, was accurate and reliable based on the clinician’s methods and protocol followed during the interviews.
320The clinician’s evidence was credible and reliable. Mr. Berendson’s thorough cross-examination of the clinician did not weaken or call into question the clinician’s evidence as to the child’s views and preferences or the clinician’s evidence as to the accuracy of the statements made to the clinician by the child and the parents.
321By way of context the child was age six (nearly age seven) when he left Peru. He was almost age 11 when last interviewed by the OCL. The child had been in Canada for approximately four-and-a-half years when this trial started.
322The clinician’s evidence supports the following findings which I make:
a. the child adamantly refuses under any circumstances to have direct or indirect contact with his father;
b. the child hates what his father has put him through in Peru and hates his father’s conduct towards the child’s family;
c. while discussing topics relating to his home life, school life, his interests and his activities and friends, the child presented as relaxed;
d. when the topic of his father was broached, the child’s demeanor changed dramatically; he became anxious, distraught, sad, emotional, angry and resentful; he was observed putting his hands over his ears and his head under his pillow, refusing to talk about anything to do with his father;
e. following the two initial meetings with the child, it was necessary for the OCL to take a break from further meetings with the child due to the significant distress and anxiety exhibited by the child when attempts were made to discuss his father; there was concern expressed by the clinician that the interview process itself was triggering the child to experience more distress;
f. the child’s memories of his father attending with the police to his home in Peru are strong and vivid; it was the clinician’s evidence that the child described this “… over and over and over …”; the child stated that he became very afraid when the police attended, and from the child’s description other family members were also distressed by the police presence;
g. when discussing his paternal relatives, for example his paternal grandmother, the child exhibited no reactions of anxiety or distress, as compared to when his father was mentioned;
h. the child presented as happy and content regarding his school; he described having a great teacher, lots of friends; he plays soccer with his friends and has a lot of fun; the child expressed that he is very happy living with his mother, his stepfather and with his dog; the child has a happy life with his mother and stepfather and there is nothing the child would change about his life with his mother; in his last interview, the child was in grade five and said that all is “good” although algebra and math are hard, but he can still do it; the child enjoys social studies and learning about health;
i. the child is very close to his half-sister, J; he has an awareness of his father’s efforts to hurt J on social media; he knows his father made his sister cry a lot; the child expressed that he hates his father and feels everyone in Peru knows about his family because of his father;
j. as discussed earlier in these reasons, the child recounted the incident at the maternal grandmother’s residence and being scared when his father grabbed him wearing only a towel that fell off;
k. the child’s aversion to contact with his father includes refusals to receive any communication in any form or gifts from his father, even if vetted by someone else, including his mother; the child did appear to relent, somewhat, during his last interview when he indicated he would take gifts if he was forced to do so;
l. across all interviews the child’s views and preferences were consistent;
m. importantly, the child frequently alluded to his desire just to be left alone and just to be “a regular kid”; he was aware that at his school he was different because there was a safety plan put in place to protect him; the child wants to enjoy a normal life without the ongoing consternation of these proceedings including interviews; the child recounted to the OCL that he and his mother had to go into hiding for his safety, staying at a hotel for several days and missing school; this occurrence related to Mr. Berendson sending an email to the Court of Appeal for Ontario as discussed earlier in these reasons, and although the child was not aware of the specifics, he knew it had to do with his father; and
n. the child’s own recollection of the occurrences including police attendances, the incident at the paternal grandmother’s residence and having to stay in a hotel and miss school, are accurate as to material details and are corroborated by other evidence in this trial.
323I am satisfied by the evidence, and I find that the child’s expressed views and preferences are strong, reliable, independent and genuine, and are in entitled to weight.
iii. The Child – His Current Situation
324There can be no doubt that both parents have a deep love and affection for the child. Mr. Berendson during his interview with the OCL described the child as very clever and born gifted. Ms. Izquierdo testified that the child is very kind, loving and a good friend. The child did not speak English when he arrived in Canada but now speaks English “perfectly.”
325Ms. Izquierdo further testified that the child is doing well in school; that he likes science but is having some issues with math and Ms. Izquierdo spoke about arranging some assistance to help the child with his math. The child enjoys his friends and playing soccer.
326Ms. Izquierdo has been the subject of police “wellness checks” in London at the behest of Mr. Berendson. He did admit that he made those requests; however, during his evidence, Mr. Berendson could articulate no specific, credible reason for his wellness-check requests. Ms. Izquierdo testified that on one occasion, the police attended at 1:30 in the morning and that the child was asleep and woke up when the police attended. While Ms. Izquierdo described the police as being very kind and then leaving, the child was scared.
327It is notable that the child independently recollected this occurrence, telling the OCL that his father caused the police to check on him in the middle of the night. This scared the child; it made him angry and he wants his father to leave him alone.
328I find that Mr. Berendson’s requests for police wellness checks constituted blatant harassment. Furthermore, from the child’s perspective after having endured years of police attendances at his home in Peru initiated by Mr. Berendson, it would have been particularly traumatic and upsetting for the child now to endure similar harassment in London, Ontario.
329It was also Ms. Izquierdo’s uncontradicted evidence that Mr. Berendson complained to the children’s aid society. As a result, there were several visits by the society. An investigation was started. The society interviewed the child, the mother and her partner and went to their home. Following the society investigation, no court case was started and no further action was taken. There was no credible evidence from Mr. Berendson or anyone else providing a reasonable explanation as to why Mr. Berendson contacted the society.
330Mr. Berendson left messages to the child, in Spanish, by hanging a large coloured poster in a park together with a balloon, by writing a message on the back of a street sign89 and by writing a message on a white board located outside of a local restaurant. Ms. Izquierdo described the restaurant sign as being white and that the message was written with a marker. Mr. Berendson published a photo of the poster in the park on his Twitter account90 after the date of the social media order. It was not in dispute that Mr. Berendson wrote the three messages.
331I accept Ms. Izquierdo’s evidence that the location of all three messages was within a block of where she and the child were residing in London at the time. I also accept Ms. Izquierdo’s evidence that on one occasion she saw Mr. Berendson, on the street, outside of her home.
332During cross-examination by the OCL, Ms. Izquierdo detailed the child’s reactions after seeing the three messages. The child was described as being anxious, anguished and nervous. Physically, the child’s face turned red, he spoke nervously, he grabbed Ms. Izquierdo’s hand wanting to leave and the child did not want to go outside.
333Mr. Berendson testified that he did not know where the child was living at the time when he left the messages. He agreed he did not leave such messages elsewhere in the city. When pressed by the OCL during cross-examination, Mr. Berendson denied that he knew where the child lived or the area where the child resided. Mr. Berendson also denied the suggestion that he put the messages where did so that the child would see them. When asked to explain why he chose those locations, Mr. Berendson’s sarcastic response was “… because I love the area.”
334Mr. Berendson’s denials and evidence are not credible. I do not believe his evidence. In the past Mr. Berendson had hired private investigators to locate Ms. Izquierdo after she left Peru with the child. It defies belief that Mr. Berendson left the messages where he did without knowing where the child lived, or at least without knowing that the child lived within that vicinity. Mr. Berendson’s purpose in placing the messages where he did was to ensure that the child saw them. The messages were directed specifically to his son, including, in Spanish, that “daddy loves you” and referring to the child in Spanish by his nickname. Mr. Berendson gave no consideration as to how the child might be affected by seeing the messages given the child’s past negative reactions to the attempts to implement parenting time, in particular in-person parenting time in London, as discussed earlier.
18. MR. BERENDSON’S RELIANCE ON S. 41 OF THE CLRA
335Mr. Berendson’s position includes an argument that the Peruvian courts retain jurisdiction. He relies on s. 41 of the Children’s Law Reform Act and submits that this court should recognize the Peruvian order made by the appellate court (“the Peruvian order”) on April 17, 2019 (together with corrections in the two subsequent orders)91 as discussed earlier. Section 41 states:
Enforcement of extra-provincial orders
41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
336Throughout this trial, there was evidence that Mr. Berendson continued to litigate parenting issues in Peru. Ms. Izquierdo sought an order in Peru that the court proceeding should be discontinued on the basis that Mr. Berendson’s Hague application was dismissed, that there is currently an ongoing parenting proceeding in Ontario and relying on the current circumstances and the length of time both parties and the child have been in Ontario. Ms. Izquierdo’s request to terminate the proceeding in Peru was dismissed by the Peruvian court on January 25, 2024.92
337Mr. Berendson’s position during the trial that the Peruvian courts have jurisdiction and that this court should recognize the Peruvian order requires some scrutiny.
338In his answer93 Mr. Berendson pleads specifically that he will not challenge that the child’s habitual place of residence is London, Ontario.
339Mr. Berendson in his answer requested that the Peruvian order “for joint custody” be recognized and enforced pursuant to s. 41. However, Mr. Berendson then requests a regular parenting schedule where the child spends a week-about with each parent. This was not the visitation schedule contained in the Peruvian order where the regular parenting schedule included three hours on Tuesdays and Thursdays and alternate weekends on Saturdays and Sundays.
340During his testimony Mr. Berendson expanded his request asking that the child be placed with him for 60 to 90 days isolated from the “abducting party.”
341During the fairly intensive case management process, the numerous endorsements that were made by the case management judge included:
a. An endorsement dated June 16, 202394 noting that Mr. Berendson’s counsel stated that Mr. Berendson will not seek the return of the child to Peru; that he is content that the child live in Ontario and not move; and the issue that remains outstanding is the parenting time that Mr. Berendson is to have with the child; and
b. An endorsement dated November 14, 202395 where it was stated, that as previously conceded, the child’s primary residence is to remain with the applicant and that this is not an issue for trial.
342The foregoing suggests that Mr. Berendson seeks an order to recognize part of the Peruvian order, being the portion relating to custody but that he seeks a different order than the Peruvian order regarding parenting time. Further, it is noted that the Peruvian order is temporary.
343It is important not to conflate s. 41 with the issue of jurisdiction. In the Hague appeal decision, the Court of Appeal for Ontario96 as discussed earlier, made clear that the court must now decide parenting issues: see paras. 5, 13, 38, 39 and 50, and in particular para. 13 states:
[13] As a result of the application judge’s decision, Ontario is now exercising jurisdiction to conduct an application by the mother for a parenting order.
344In addition, I would note the following:
a. Ontario has jurisdiction pursuant to s. 22(1)(a) (“habitual residence”) given Mr. Berendson’s acquiescence on the issue of habitual residence (s. 22(2) cl. 2, CLRA); and
b. While the principles set out in s. 19 of the CLRA include a recognition that the concurrent exercise of jurisdiction by judicial tribunals in different states ought to be avoided (s. 19(1)(b)), that principal is subject to “exceptional circumstances.” In the present case, considering the length of time that the child and both parents have been in Ontario, and that Mr. Berendson does not seek to return the child to Peru, it is more appropriate for this case to be determined in Ontario.
345The issue relating to s. 41 turns on whether this court, in exercising its jurisdiction in deciding the parenting issues, should recognize the Peruvian order.
346The OCL submits that it is an abuse of process for a parent to seek recognition of an extra-provincial order under s. 41 after that parent’s application under the Hague Convention (incorporated at para. 46 of the CLRA) has been dismissed. The applicant adopts the OCL’s submission.
347The authorities relied on by the OCL include:
a. In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, an employment law case dealing with issue estoppel, the court commented on the impropriety of relitigating an issue, stating in part at para. 18:
... An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
b. Toronto (City) v. C.U.P.E, Local 79, 2003 SCC 63, was a case involving an arbitration where the Supreme Court of Canada relied on the doctrine of abuse of process in finding that the appellant union was not entitled to relitigate the griever’s conviction in a criminal proceeding. The court stated at paras. 35 and 37:
35 Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, at p. 616), and as “oppressive treatment” (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007:
. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
37 In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis in the original];
c. In Northenor v. White, 2024 ONSC 208 (Ont. S.C.J.) [unreported]97, the father’s claim under the Hague Convention that the mother had wrongfully removed the parties’ child from the United States was dismissed. The father then brought an alternative claim under s. 40 seeking return of the child. The court dismissed the alternative claim on the basis that a party should not be able to use that process after the parties’ Hague Convention proceeding has been dismissed: paras. 30-32.
348I concur with the OCL’s submission that Mr. Berendson’s claim under s. 41, in the face of a dismissal of the Hague application, constitutes re-litigation and amounts to an abuse of process.
349Alternatively, even if s. 41 was available to Mr. Berendson, then pursuant to s. 42 a court may supersede an extra-provincial order. Section 42 states:
Superseding order, material change in circumstances
42 (1) Upon application, a court by order may supersede an extra-provincial order in relation to decision-making responsibility, parenting time or contact with respect to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) although the child is not habitually resident in Ontario, the court is satisfied
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,
(iii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iv) that the child has a real and substantial connection with Ontario, and
(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
350In the present case, there has been a material change in circumstances since the Peruvian order and the condition in s. 42(1)(a) is met. Even if the child was not habitually resident in Ontario, then all the conditions in s. 42(1)(b)(i)-(v) are satisfied.
351While I make no order under s. 41, I do take into account and consider the Peruvian order.
19. DISCUSSION – THE BEST INTERESTS FACTORS
a. The Relevant Legislation
352As noted earlier, the Children’s Law Reform Act, is the applicable legislation in this case. When making a parenting order s. 24 requires the court to take into account only the best interests of the child, requires the court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being and sets out the factors that the court shall consider relating to the circumstances of the child.
353For convenience, sections 24(1), (2), and (3) are reproduced:
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 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 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.
354The court is required to take into account the impact of family violence: s. 24(3)(j). In doing so, the factors listed in s. 24(4) shall be considered:
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.
b. Section 24(3) – the best interests factors
a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
355For almost his entire life, the child has lived in the shadow of non-stop litigation, both in Peru and Ontario. While in Peru the child was subjected to various interviews and assessments. At this point, the child’s needs include: the continuation of a stable home life; preservation of his emotional and psychological safety by being able to function as a child, go to school, pursue friendships and play sports without the constant pressure and anxiety regarding the issue of Mr. Berendson’s requests for parenting time; being able to enjoy his day-to-day life without fear for his safety; this means being able to enjoy a walk in the park, going to a restaurant or walking along the sidewalk without being startled by messages directed at the child on posters or messages written on restaurant bill boards or scrawled on the back of street signs; this means being able to go to school without being stigmatized by the implementation of a safety plan; and this means not having to leave his home and missing school and go to a hotel because of frightening and disturbing messages sent to the court after midnight.
356The child’s needs include a right to privacy, and a right to live his life without an incessant barrage of social media about himself or his family.
357The child’s needs must be formulated, “given the child’s age and stage of development”: s. 24(3)(a). Having attained age 11 prior to the commencement of this trial, the child’s needs