Null

Court File No.
297-03
Date: February 27, 2007
ONTARIO
2007 CanLII 6240 (ON S.C.)

SUPERIOR COURT OF JUSTICE
FAMILY COURT
Applicant:
C.S. Names of counsel not published, in

accordance with the order of the court made
on October 11, 2006 (see Appendix A)
Respondent:
M.S.
HEARD: October 10-13, 16-19, 23-27 and
30-31 and November 1-3, 2006
Perkins J.
REASONS FOR DECISION
The case
[1] This case is even sadder than the usual family tragedy we see in the Family Court. After
more than four years of warfare between the parents, during which the children were dragged by
both parents into the middle of their relationship issues, three of the parties’ four children have
left the mother’s home for the father’s home and no longer speak to their mother. Their recent
communications with her – infrequent, and almost exclusively by email – have been marked by
an angry and scornful tone toward her. Fearing the father and the other three children will work
to cause the loss of her relationship with the fourth child, the mother has not allowed that child to
see the father or the other three children. The couple’s considerable assets, which would
ordinarily be the children’s inheritance, have been spent on legal fees. Both parents are
emotional wrecks and are psychologically unfit to work. The father has been on long term
disability for two years. The mother has been in counselling and unable to work for at least as
long. The damage to the children is enormous too, though they at least are doing well in school.
[2] I conducted an 18 day trial in which there were over 100 exhibits, mostly emails and
letters between the parents and between parent and child, occupying thousands of pages in 15
three ring binders. Every negative event in the parties’ 20 year relationship was meticulously
examined and documented. I was implicitly asked to assign the blame for each event along the
C.S. v. M.S. Page 2 February 27, 2007
way that led to the breakdown of the marriage and to vindicate the position of one or the other of
the parties on every incident. It was as if I had the job of determining, as of the separation more
than four years ago, who was to blame for the separation and who was fit to have custody of the
children. However, the custody issue was not before me, not even for the youngest child. The
2007 CanLII 6240 (ON S.C.)

mother long ago gave up on custody of the three oldest children, knowing that they were beyond
the reach of any legal remedy. They have not even seen her for two years (except when two of
them testified at the trial). At trial, the father too conceded custody of the youngest child to the
mother. The only remaining issue about the children was access by the father and the three
oldest children to the youngest child, a 10 year old, who has not seen the father or the other
children for a year.
[3] The mother characterized this case as an extreme example of parental alienation
syndrome, in which the three oldest children have been recruited by the father, one by one, to
join him in an aggressive campaign of demonization of the mother, to the point that the three
children have adopted his view of the mother as a person unworthy of affection, respect or even
civility. The father said that the mother is mentally ill, emotionally unstable and prone to
irrational outbursts; or in the alternative, a liar who has vilified him without justification; or
both. As a result, the father said, the children have independently and with cause decided to
reject her.
[4] At the separation some four years ago, when the father left the home, the oldest child
went with him, almost from the start refusing to have anything to do with the mother. Later the
second and then the third child moved out of the mother’s home and eventually stopped seeing
her. The father said all three children were driven away by the mother, who falsely accused him
in the children’s presence of various kinds of misconduct, blamed him for the separation and
tried to enlist the children in her battle with him. The mother admitted she told the children too
much in the early days of the separation, but said that she had to, in order to defend against the
things the father was telling the children about her. She said the father was a relentless, angry,
violent and vindictive man who recruited the three oldest children in his campaign to punish her
and poisoned them against her, and that if given the chance, he would do the same to the
youngest child and use the older children to help him do it.
[5] The case has been fraught with tension. The police have been involved with this family
on numerous occasions. Criminal charges were laid against the father arising from three separate
events, but he was not convicted on any of them. For a time, there was a child protection case as
well, but it was ultimately withdrawn, without a finding in need of protection. While it was
going, one of the children was placed in the care of a children’s aid society but ran away and hid
for months. The father was accused of helping to conceal the child’s location. He was found in
contempt of court. Right after that, the child returned to the care of the CAS.
[6] The father has involved Canada Court Watch Project in his cause. Court Watch is a
lobby group whose stated aims include bringing “an end to the needless injustices being
perpetrated against many innocent children and families by institutions such as our family court
system and branches of the Children’s Aid Society.” Much information about the family and
various professionals associated with it was posted on the Court Watch website and others.
Because of the potential harm to the children and others associated with publicity in this case, I
made an order banning publication of identifying information on October 11, 2006, which is
attached to this decision as Appendix A. That is why this decision is written with initials only
for the parties’ names and gives no information that would identify them, the children or the
professionals who have worked with them. The reasons for decision and the orders of the court
2007 CanLII 6240 (ON S.C.)

must remain public, but I have gone to great lengths to eliminate identifying information from
these reasons – locations are not mentioned and not even the children’s first names, initials or
sexes are disclosed. The family is from a small enough community that I felt this was necessary
to protect the children. This case has become so contentious and there have been so many
Internet postings, complaint letters and even threats that I have gone so far as to keep all
witnesses’ and lawyers’ names out of the public record, in order to protect them as well.
[7] On November 17, 2006, I released a short endorsement giving only the result of the case,
with my reasons to come (and here they are). Shortly after that date, Court Watch on its website
invited the general public to get in touch with Court Watch to rate my judging ability, and posted
a story calling me the Grinch judge who stole a child’s Christmas and including anonymous
comments that I should be tarred and feathered and run out of town. Some member of the public
made sure I knew about this by sending it to me in an email. This case has been very unpleasant
for everyone involved in it in any way.
Issues
[8] The principal issue was access. Should there be access between the father and the
youngest child? Should there be sibling access? If so, on what terms?
[9] The second issue was support. Child support would of course be calculated according to
the Child Support Guidelines table. The father’s income was not in issue. The father submitted
that the mother should be working and contributing to the support of the children living with him
and to her own support, if not immediately then soon, and if not full time then at least part time.
The mother said she could not work for the foreseeable future. The mother also claimed, and the
father resisted, periodic spousal support. By the end of the trial, child and spousal support
proceeded largely on consent, with only the mother’s income and minor issues of detail for me to
resolve.
[10] There was also a significant issue about the mother’s request for a restraining order.
Should there be one at all? If so, could or should it be made against the three oldest children?
Result
[11] My short endorsement embodying the elements of my decision on all issues, dated
November 17, 2006, is attached to this decision as Appendix B.
[12] I concluded that there should be no access by the father or the other children to the fourth
child living in the mother’s care. My reasons are set out below.
[13] I found that the mother’s present actual and potential income was zero. I will not
mention the other support terms here, as the main points went by consent. The contested details
are discussed briefly below.
2007 CanLII 6240 (ON S.C.)

[14] On the restraining order issue, I made an order under section 46 of the Family Law Act,
R.S.O. 1990, c. F.3 as amended, and section 35 of the Children’s Law Reform Act, R.S.O. 1990,
c. C.12, as amended, prohibiting the father from:
• molesting, annoying or harassing the mother or the youngest child;

• communicating directly or indirectly with the youngest child;
• coming within 100 metres of the mother, the youngest child or any
person while the person is caring for the youngest child;
• coming within 100 metres of the youngest child’s school, the mother’s
home or any other place where the father knows the youngest child or
the mother is actually present or is ordinarily present at the time;
• encouraging or explicitly or implicitly permitting any person to
approach the youngest child with a communication from the father or
any of the other three children;
• encouraging or explicitly or implicitly permitting any person to do on
his behalf anything he is restrained from doing.
The restraining order expires on August 9, 2014, unless renewed on a motion to the court.
Reasons are given below.
[15] Costs remain to be decided. I have directed written submissions, to be followed by oral
argument.
Family and case history
[16] The mother, now 45, trained in a vocation and began working soon after she turned 18.
The father, now 51, was also working when he met her. They began dating when she was
around 21 and he was about 26. They moved in together and bought a house. They were
married in 1986. Their first child was born in 1987. The second and third children came at two
year intervals and the fourth child came along five years after the third. The children are now 19,
17, 15 and 10.
[17] From the birth of the first child, the mother did not work outside the home. The father
had a job that often took him away from home for short intervals, sometimes for one or two
overnights at a time. He was also home often for periods of a day or days between trips and
tended to limit his work days each month so as to have time at home with the family. Both
parents were heavily involved in raising the children, but the job of keeping the home fires
burning fell largely to the mother. Because the father had intervals between his trips, he was
able to set up and run a substantial business, in which the mother played a secondary role. It
occupied much of his time when he was not away. He was the primary business manager, but
when he was away, the mother tended to business affairs as needed until he returned.
[18] The marriage was troubled off and on from the start and especially for a year or two
before the final separation in 2002. The couple separated and reconciled once before then and
made a few attempts at counselling well before the separation. The mother recounted a number
of instances of assaults by the father, beginning before the marriage and ending after the
2007 CanLII 6240 (ON S.C.)

separation. She also said that the father began seeking sexual gratification in other places. The
father denied all this. He said that the mother became increasingly unstable mentally, drank too
much and lashed out at him and the children. He also claimed it was the mother, not he, who
sought sexual outlets outside the marriage. The mother denied all this. The children
remembered a lot of arguing and yelling in the months leading up to the final separation.
[19] There was an incident the day the father left the home in which each parent struck the
other. Part of it was witnessed by the oldest child, then 15. Later that day, the mother got into
an argument with this child, who blamed her for the father’s departure. Rashly, unwisely and to
her enormous and endless regret, the mother said that if the father was “such a good guy”, the
child should go live with the father. That night, the child moved to the father’s residence and
never came back. The other three children remained with the mother. At first, the father did not
see them very often, but regular access began by early 2003.
[20] There was an initial period after the separation when negotiations were underway through
collaborative law counsel and no court case was begun. But in March, 2003, the collaborative
process was at an end, litigation lawyers were retained, the court application was issued and the
motions started coming.
[21] The first motion resulted in a restraining order (March 21, 2003), obtained without notice,
against the mother. The father brought the motion without his lawyer of record at the time, who
withdrew from the case. It was followed by a second motion by the father and a cross motion by
the mother for custody of all four children. Only three weeks into the case, a judicial colleague
remarked in an endorsement, “This dispute has gotten seriously out of control.”
[22] The custody motions came on before me on April 2, 2003 during the spring trial sittings,
a time when the court in this region does not ordinarily hear motions, because of my colleague’s
desire to calm things down as quickly as possible. The mother’s lawyer told me the father was
getting new counsel and asked for a short term order to stabilize the situation for a few days. I
set aside the March 21 restraining order and made an order, for a period of six days until the
matter came back to court, that reflected the status quo, which was the oldest child living with
the father and having access with the mother in the child’s discretion, and the three youngest
children living in the care of the mother. I also set out a number of terms intended to prevent the
parents from involving the children in the issues. Those terms were continued in subsequent
orders but regrettably did not prevent the children from becoming knowledgeable about and
deeply involved in the parents’ issues.
[23] On April 8, 2003, the custody motions came back on. The father had his new lawyer in
place. The parties hammered out a consent to an assessment and to the arrangements for the
children, all of which were turned into an order. The children remained where they were, with
the father having regular alternate weekend access and a midweek overnight with the three
youngest children. Both parents were to have liberal telephone access to the youngest three
children. The oldest child was left to make access arrangements in the child’s discretion. The
children were not to be removed from Ontario without the consent of both parents, not to be
unreasonably withheld. The mother received some short term child and spousal support.
2007 CanLII 6240 (ON S.C.)

[24] During the spring and summer of 2003, the father formed a friendship and then a
romantic relationship with a married woman who lived in the neighbourhood. He and the mother
had known the woman and her husband for about three years. The woman and her husband were
experiencing difficulties in their marriage. In August, the father ended up moving into her home
with the oldest child, just as the woman and her husband began living separate and apart in the
same home. The father and the oldest child remained there for more than a year.
[25] The assessment process continued over the summer and fall of 2003. The report was
delayed, for various reasons, into the winter. By January, 2004 the situation in the mother’s
home had deteriorated seriously. The second child had become increasingly hostile to the
mother and called the children’s aid society to lodge a complaint about the mother, saying that
she was constantly badmouthing the father and driving while intoxicated. The CAS investigated
but did not intervene.
[26] The assessment report was dated February 17, 2004. It recommended joint formal
custody, with the expectation the oldest child (almost 17 at the time) would continue to live with
the father, and that the other three children should live primarily with the mother, despite the
second child’s consistent and persistent wish and the third child’s recently articulated wish to
live with their father. The father’s time with the three youngest children was to be six nights out
of every 14 as well as half the school vacations. The mother doubted the practicality of this
approach, given the children’s behaviour and articulated wishes, but was prepared to go along
with it. The father rejected it.
[27] On February 23, 2004, a consent order was made at a case conference. The assessor’s
recommendations were not implemented. The residential and visiting arrangements for the
children and the support arrangements put in place on April 8, 2003 were maintained.
Questioning of both parties was scheduled, in anticipation of a motion on all these issues in June.
The father had switched to his third litigation lawyer.
[28] On March 24, 2004, the second child left the mother’s home and moved over to the
father’s. The third child followed a few weeks later at the beginning of May. The father and the
three children all now lived in the house owned and occupied by his new partner and her
children. When the father’s second and third children arrived, tenants living in the basement of
the house were given notice and vacated the premises in order to make room.
[29] On June 30, 2004 the pending custody and access motions (on adjournment since March,
2003) were resolved by consent. This time, the order provided for joint custody of the three
youngest children (the oldest was already 17 and was not mentioned in the order); residence of
the second child to be determined by the child; primary residence of the third child to be with
the father and regular time to be spent with the mother; primary residence of the fourth child to
be with the mother and regular time to be spent with the father. By this time transfers of the
children between the parents were taking place at a police station, and this arrangement was
expressly continued in the order. The order provided for counselling for all four children and for
the counsellor to act as a parenting coordinator as well. The counselling did not happen. Neither
did the parenting coordination.
2007 CanLII 6240 (ON S.C.)

[30] On August 17, 2004 the first order for child and spousal support was made, on consent.
Before then the father had been making payments of support voluntarily. The order also dealt
with the payment out of over $590,000 of proceeds from the parties’ property and provided for
the drawing up of a trust deed for the benefit of the children by a local lawyer, who was
empowered to arbitrate any issues relating to the terms of the trust. The trust deed was never
drawn up. The order also provided again for counselling for all four children by a named person,
who was also to act as a parenting coordinator. The person declined to act when the three
children living with the father signed a letter refusing to participate in counselling. Again, the
counselling and parenting coordination did not happen.
[31] Another consent order was made on September 30, 2004 to deal with the buyout by the
mother of the father’s interest in the matrimonial home and other property matters.
[32] In November, 2004, the father went for mandatory training and testing that was required
to allow him to continue working and earning at the same level as before. He did not do well in
the training because of his psychological state, which he attributed to the stress of the separation
and the litigation. Instead of completing the training and risking a failing grade, he was allowed
to withdraw from the course and go on long term disability. He remained on disability from then
on, through the end of the trial.
[33] In December, 2004, a major development occurred. A child of the father’s new partner
made serious allegations of sexual abuse by the father. He was charged and arrested. He was
held in custody for a time. Suddenly, the three oldest children found themselves in the care of a
woman who believed that the father had committed sexual assaults on her child, who wanted
nothing more to do with the father and who had no interest in caring for his three children. The
three older children rejoined their sibling for a very brief reunification in the mother’s care, but it
was the Christmas school vacation and the two oldest children soon travelled to be with family
out of province. A few days later while the two oldest children were still away, the father got out
on bail and moved into an apartment. The third child immediately left the mother and moved
back in with the father, refused to return to the mother and refused to leave the father’s home.
Because of the pending charges against the father, the children’s aid society intervened and
began a protection application on December 20, 2004, apprehended the child from the father’s
care and placed the child in the society’s care in a foster home. When the two oldest children
returned from their trip, they resumed residence with the father. The CAS did not intervene with
respect to them because it did not consider them to be at risk.
[34] On January 18, 2005, the father and the mother each sought an order in the protection
case to have the third child placed in their care, under supervision, but neither parent succeeded.
The foster care placement was maintained, with the mother given unsupervised access and the
father supervised access.
[35] In March, 2005, the third child ran away briefly from the foster home but was returned by
the police. Soon afterward, the third child again left the foster home without permission and
went into hiding, but maintained contact with the father and the two oldest children. The father
tried again, unsuccessfully, to change the child’s placement on April 1 by a motion without
2007 CanLII 6240 (ON S.C.)

notice.
[36] The father’s third litigation lawyer retired from practice in early 2005. The father, now
unrepresented, brought a motion to reduce his support obligations because of the drop in his
income when he went on disability. It was quickly resolved by consent on March 4, 2005 with a
substantial reduction in the amount of support, effective from January 1 of that year. That same
day, the parties reached a memorandum of understanding on the exact amounts to be paid into
trust funds for each of the children. A detailed consent, undated but apparently arrived at on or
after June 20, 2005, gave effect to the memorandum of understanding. A trust account requiring
both parents’ signatures was set up in a bank for each child. The amount in each account was
different but each was in the vicinity of $50,000. The trusts were to be for “the children’s
education first and then other items.” The mother agreed to pay the cost of drawing up “a simple
trust document” and the parties agreed to nominate a neutral arbitrator to decide “any impasse
respecting the use of the trust funds.”
[37] On June 30, 2005, in the protection case, after the third child had been in hiding for three
months, the father was found in contempt of the order of January 18, 2005 that provided for the
child to remain in CAS care. The court found that he was able to be in contact with the child
when he wanted and was the directing mind of the child’s absence. He had managed to produce
the child for a psychological assessment (without the mother’s or the CAS’s knowledge, by a
second psychologist) while the child was in hiding and had also produced the child for meetings
with the Children’s Lawyer agent. The court ordered him to produce the child to the CAS by
July 5, failing which a warrant was to issue for his arrest and a fine of $1,000 a day would be
levied for every day the child was not produced. The child was produced as required and was
brought back into CAS care by the National Chairman of Court Watch.
[38] Some further terms relating to the children’s trusts and other financial issues were
incorporated into a consent order on September 28, 2005. By this point, the father had his fourth
litigation lawyer, who had acted for him in the protection case since the spring of 2005 (and who
represented him at the trial before me). Each of the children’s trust accounts received a sum in
excess of $30,000 (each child received a different amount, reflecting that some of the trust funds
for the two oldest children had already been paid out for their use). The order repeated the
provision for a new trust deed and a mediator/arbitrator. Despite the earlier consent and the new
order, the trust deed was not drawn up and no arbitrator was chosen. This order did, however,
finally resolve the parties’ net family property equalization and the disposition of jointly owned
assets. It contemplated that the issue of any adjustments to the support arrangements would be a
matter for trial in 2006.
[39] On January 19, 2006, the court in the child protection case returned the third child (then
age 14) to the father’s care under a supervision order. This came about on the motion of the
CAS, supported by the father and the Children’s Lawyer agent acting for the child. The order
required the child to undertake “reconciliation counselling” (with a view to restoring contact
with the mother) with either of two named individuals, the choice between them to be made by
the child. The child and the father met with both the named individuals. Both declined to accept
the referral because of the attitude of the father and the child.
2007 CanLII 6240 (ON S.C.)

[40] On February 14, 2006, the court dealt with the father’s motion to reinstate access to the
youngest child and the mother’s motion to impose supervision on the father’s access. The issues
were case conferenced and ultimately neither motion proceeded.
[41] The mother’s original application in this case, filed in 2003, sought custody of all the
children and proposed regular access by the father. The mother amended her application on
March 15, 2006, to recognize the change in residence of the three oldest children as a fait
accompli, but still proposed regular access under supervision to the youngest child by the father,
on condition he participated beforehand in counselling and demonstrated an ability to refrain
from making comments about the mother and from involving the other children.
[42] On June 30, 2006 summer travel by the mother with the youngest child was the subject of
a case conference. Agreement was reached and an endorsement was made on the record, though
it appears no formal order was prepared. The father contemplated bringing forward another
motion to deal with access to the youngest child, but chose instead to await the trial, which began
on October 11.
[43] Also on June 30, 2006, in the protection case, the CAS stated its desire to withdraw the
protection application. The presiding judge expressed concern about the fact that the counselling
for the child mandated by the order of January 19, 2006 had not occurred. However, on August
31, on consent of the CAS, the father and the Children’s Lawyer, not opposed by the mother, the
CAS was permitted to withdraw the application. There was never a finding that the third child
was in need of protection.
[44] I have recounted some 17 significant appearances in this case and the child protection
case. There were several others that did not result in an order or that dealt with property issues
(which have all been finally disposed of), and therefore they were not included in the history
above. A great number of those appearances resulted in consents. Yet every one of those
consents (except when the father asked for a reduction in the support) took a great deal of time,
effort and money to achieve, the great majority of the effort coming from the mother’s side, and
once agreements were achieved, the father did not always follow them (for example, preparation
of children’s trust deeds, securing counselling for the older children). This case has been hard
fought from the start, though there was a lull (in the litigation – not in the lives of the parties and
children) from the spring of 2003 to the end of June, 2004. The lull coincided with the
preparation and release of the assessment report, its rejection by the father and the decamping of
the second and third children from the mother’s home to the father’s. That is when the mother
says the father waged his most vigorous campaign, successfully, to recruit the older children to
his cause.
[45] In July, 2006, the mother and the youngest child began living with a man whom the
mother had met three years before. They had dated for some time.
[46] As the trial began on October 11, 2006, the father was living as a single parent in a home
with the three oldest children and the mother was living in a home with her new partner and the
youngest child. The three oldest children last saw the mother in January, 2005. The youngest
child last saw the father and the three oldest children in January, 2006. The governing custody
2007 CanLII 6240 (ON S.C.)

and access order was the order of June 30, 2004, which no longer reflected reality: it provided
joint custody of the three youngest children; residence of the second child to be determined by
the child; primary residence of the third child to be with the father and regular time to be spent
with the mother; primary residence of the fourth child to be with the mother and regular time to
be spent with the father; transfers to occur at the police station.
[47] The support was governed by the order of March 4, 2005: monthly child support of $741
for the youngest child and spousal support of $1,560 to the mother, based on the father’s
disability income of $95,243 annually and no earned or imputed income for the mother. By the
end of the trial, the parties agreed on an increase in the child and spousal support, based on the
father’s total 2005 income of $108,158 and the new guidelines tables in effect since May, 2006.
The new amounts were $914 child support and $1,858 spousal support monthly from November
1, 2006 and a catch up payment of $2,000 for child support underpaid in the years 2005-6. The
father submitted the mother was currently capable of earning something like $20,000 annually
but did not press the point (rightly, in light of the evidence).
[48] At the trial, the mother submitted that any access by the father or the three oldest
children, without counselling and a change of attitude and behaviour first, was not in the
youngest child’s best interests. The father submitted that he (and the other three children) should
have access now, under supervision if necessary, concurrently with counselling or even
following counselling. He did not present a plan for counselling or the name of a proposed
counsellor. Neither did the mother.
Applicable statutes
[49] This is a divorce application, in the ordinary sense of those words – each party has asked
the court for a divorce – and in the technical sense of the definition of “divorce proceeding” in
section 2 of the Divorce Act, R.S.O. 1985, c. 3 (2nd Supp.), section 3 (1), which covers
applications for a divorce whether alone or together with claims for custody, access or child or
spousal support. The governing statute for all these issues is the Divorce Act. I was also referred
to the list of factors to consider in determining the best interests of a child set out in the
Children’s Law Reform Act, R.S.O. 1990, c. C.12 as amended, section 24. They are not strictly
applicable to this case but are a useful checklist of factors to consider.
[50] The Divorce Act provisions relevant to the access issues in this case are found in section
16, and in particular in section 16 (4), (6) and (8)-(10). Section 16 is reproduced below.
Order for custody

16. (1) A court of competent jurisdiction may, on application by either or both spouses
or by any other person, make an order respecting the custody of or the access to, or the
custody of and access to, any or all children of the marriage.
Interim order for custody
(2) Where an application is made under subsection (1), the court may, on application
by either or both spouses or by any other person, make an interim order respecting the
custody of or the access to, or the custody of and access to, any or all children of the
marriage pending determination of the application under subsection (1).
2007 CanLII 6240 (ON S.C.)

Application by other person
(3) A person, other than a spouse, may not make an application under subsection (1) or
(2) without leave of the court.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to,
any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the
marriage has the right to make inquiries, and to be given information, as to the health,
education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period
or until the happening of a specified event and may impose such other terms,
conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order
under this section a term requiring any person who has custody of a child of the
marriage and who intends to change the place of residence of that child to notify, at
least thirty days before the change or within such other period before the change as the
court may specify, any person who is granted access to that child of the change, the
time at which the change will be made and the new place of residence of the child.
Factors
(8) In making an order under this section, the court shall take into consideration only
the best interests of the child of the marriage as determined by reference to the
condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the
past conduct of any person unless the conduct is relevant to the ability of that person to
act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle
that a child of the marriage should have as much contact with each spouse as is
consistent with the best interests of the child and, for that purpose, shall take into
consideration the willingness of the person for whom custody is sought to facilitate
such contact.
[51] In this case, the father argued that I should make an order for access not only by him, but
also by the three children in his care, to the child in the mother’s care. The mother opposed such
an order without the imposition of counselling first. The three oldest children did not apply for
access or bring a motion for permission to do so. Accordingly, section 16 (3) is not relevant and
the three children’s access rights, if any, come from the mother’s application or the father’s
answer, both of which ask for an access order, and the court’s power to make an order in favour
of “any one or more persons” in section 16 (4). The availability in law of an order for the three
children was raised but not fully argued before me. I have assumed without deciding that I could
make an access order in favour of the three children in this case. The mother’s amended
application seeks an order that the three oldest children be given supervised access to the
youngest child on certain terms. The father’s answer claims access, but not specifically on
behalf of the children living with him. I note, however, that ordinarily a person wanting a court
order must be a party to the case (section 16 (3) contemplates that other parties could be added)
2007 CanLII 6240 (ON S.C.)

and ordinarily if a party were able to assert a claim on behalf of another person who is not a
party, the governing statute would say so explicitly. I think that someone would have to ask that
the three children be added as parties for this purpose (if only to bind them in the determination
of any rights they might have), but as I say, I am prepared to look at the merits of the issue
without deciding the procedural point.
[52] The child support and spousal support in this case are also governed by the Divorce Act,
sections 15.1 (child support) and 15.2 (spousal support). The parties have asked, mostly on
consent, that a number of provisions be included in the support terms of the order, above and
beyond the ordinary orders for periodic or lump sum support. These provisions deal with matters
such as a trust for the children, payment of education expenses, and maintenance of benefit
coverage and life insurance. These provisions are authorized by sections 15.1 (4) and 15.2 (3),
both of which permit the court to “impose terms, conditions or restrictions in connection with the
order as it thinks fit and just.”
[53] The mother has asked for a restraining order (under provincial statutes, as there is no such
power in the federal law) to keep not only the father but also the three oldest children away from
the child in her care. Ontario legislation has two restraining order provisions that might be
applicable.
[54] Section 35 (1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended, is as
follows:
Order restraining harassment

35. (1) On application, a court may make an interim or final order restraining a
person from molesting, annoying or harassing the applicant or children in the applicant’s
lawful custody and may require the person to enter into the recognizance or post the bond
that the court considers appropriate. R.S.O. 1990, c. C.12, s. 35 (1).
[55] Section 46 (1) of the Family Law Act, R.S.O. 1990, c. F.3, as amended, reads:
Order restraining harassment

46. (1) On application, a court may make an interim or final order restraining the
applicant’s spouse or former spouse from molesting, annoying or harassing the applicant
or children in the applicant’s lawful custody, or from communicating with the applicant
or children, except as the order provides, and may require the applicant’s spouse or
former spouse to enter into the recognizance that the court considers appropriate. R.S.O.
1990, c. F.3, s. 46 (1); 1999, c. 6, s. 25 (20); 2005, c. 5, s. 27 (23).
[56] It was not suggested that there was any conflict or operational incompatibility between
these two provincial provisions and the custody and access provisions of the federal Divorce Act.
It could be argued that restraint of contact is within “terms, conditions or restrictions” in section
16 (6) of the Divorce Act, but the kinds of restraining order made under provincial law often
impose very detailed and restrictive limits on behaviour, and are more than just mere terms or
conditions relating to or restrictions of access. I am not aware of any decision expressly stating
that a provincial restraining order can be engrafted on to a Divorce Act custody or access order,
but it is done all the time without question. The federal and provincial provisions are aimed at
2007 CanLII 6240 (ON S.C.)

regulating different sorts of behaviour and use different tests, but the powers are used compatibly
to create an access (or no access) regime with additional protections in the form of a restraining
order to protect the custodial parent or the child and to ensure that the access (or no access)
regime is not abused or undermined.
[57] The two restraining order provisions cover different sets of persons – both the set of
persons who are restrained and the set of persons who are protected contain different members –
and only the FLA section expressly permits restrictions on communications. Both provisions are
commonly understood and used to include a restraint on physical approaches. I have used the
two provisions together as the foundation for the restraining order I made on November 17, 2006
in this case.
[58] The mother wanted me to restrain the three oldest children directly from harassment and
from approaching or contacting the youngest child. She did not name the three children as
parties, for understandable reasons, and did not serve them with notice of her request to include
them in a final restraining order. The mother submitted that the three children undoubtedly had
notice of what was going on at the trial and knew of the requested order. This was because they
lived with the father, they had been active participants in a number of issues in this case at his
instigation or with his acquiescence, and two of them were witnesses at the trial. However, I
concluded that, in the absence of a formal notification and an opportunity to respond at or before
the trial, the three oldest children could not properly be restrained directly from contacting or
approaching their sibling or harassing their mother or their sibling. It might have been possible
to devise a procedure before the trial, perhaps short of adding them as parties formally, to notify
them of the claim and give them a chance to respond, but this was not done either. Accordingly,
it would not be appropriate for me to express any views on the merits of a restraining order
against the older children.
[59] I have concluded, given the history of actions by the father in this case to act in
disobedience of court orders and to acquiesce in the three oldest children’s disobedience of court
orders, that there is a need to bolster the order I have made for no access with some fairly
detailed restraints on the father. The reasons for this will become more apparent from my review
of the evidence and my conclusions in relation to the central issue of access, set out below.
Evidence at trial generally
[60] I commented above on the great amount of documentary evidence. The vast majority
was tendered by the mother. She also presented the great majority of oral evidence (in both
direct evidence and cross-examination). The mother’s witnesses’ oral evidence was replete with
hearsay and much of it came in response to leading questions. The father’s counsel did not
object often. Occasionally I intervened when I thought the hearsay or the leading questions were
going to important issues in the case, but rarely did I interrupt the flow, leaving evidentiary
problems generally to be raised by counsel. In evaluating the evidence, I have tried to steer clear
of dubious hearsay and to rely mainly on evidence that was not weakened by being fed to the
witnesses in counsel’s questions.
[61] As I said during the mother’s case at trial, there was a great deal of going over ancient
2007 CanLII 6240 (ON S.C.)

history. Relatively minor incidents that occurred well before the separation were covered in
detail. The mother’s lawyer advised me that she felt she had to get all of the history before the
court in order to establish a pattern of conduct by the father and to demonstrate the true nature of
the man. This was not tendered as evidence of bad character in general, but was presented as all
relevant to his parenting – an inability to put the children’s best interests first and a blindness to
the damage he caused in acting on his need for vindication or revenge. Then there was always
the prospect of an appeal (very likely to be taken by the father if unsuccessful, submitted the
mother, with some cause). As a result, I did not cut off either party’s lines of inquiry on grounds
of tangential relevance or insubstantial weight.
[62] The children did not at any time have the benefit of representation by the Children’s
Lawyer in this case (unlike the protection case, in which the third child had counsel). At the start
of the trial it became apparent that the current wishes and preferences of the youngest child, who
was the only child for whom I was being asked to decide access, were not going to be put before
me by that means or by any other independent witness. Those wishes and preferences, even if
tainted by parental alienation, and maybe especially if they were tainted, would have been good
to know. However, I did have the benefit of a report and oral testimony from an extremely well
qualified and experienced psychologist, whose evidence, though dated, was very helpful.
[63] This was not a case where I should have adjourned the trial and referred the case to the
Children’s Lawyer. The parties, for their own reasons, had not made or renewed a motion for a
referral to the Children’s Lawyer in the many weeks and months leading up to the trial, which
they knew was coming. Under the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended,
section 89 or 112, I could have sought the Children’s Lawyer’s help on my own initiative, but I
could not compel the Children’s Lawyer to act for a child or to make an investigation. No offer
was made to pay for private representation or an update of the assessment. The case had been
going for over three years, the trial had been scheduled for months, the court had assembled a
judge and staff for an expected long trial, the parties had their witnesses and documentary
evidence marshalled and it was my duty to proceed to hear the trial on the basis of the evidence
they offered. The child is still only 10, and though the wishes and preferences of a child that age
are to be listened to, they are not as powerful a factor as those of an older child. In this case,
factors in the child’s best interests other than wishes and preferences have assumed far more
prominence.
[64] The two oldest children testified as witnesses for the father. They were 19 and 17 years
old and both lived with the father until very recently, when the oldest went away to school. The
second child was still under the father’s roof but also intending to live away from home in a few
months’ time. I would normally strongly discourage the calling of children of the marriage as
witnesses, all the more so when the purpose was to vindicate one parent’s version of the events
leading to and after separation. However, the mother did not object, as it was in her interest to
have the court observe how estranged these children were from her. In light of this, the ages and
maturity of these children and the fact that the best interests of these two children were not
before the court in any fashion, I did not try to dissuade the parties from having them testify.
[65] The mother tendered an article about parental alienation syndrome written by a
2007 CanLII 6240 (ON S.C.)

psychologist who did not testify at the trial. Unfortunately she did not have her expert witness,
also a psychologist, explain the concept in depth on the record, comment on the state of the
literature generally and the article in particular, opine as to the diagnosis, prognosis and
treatment prospects for victims of parental alienation in general and then apply the literature and
the witness’s own opinions to the child in issue in this case. And unfortunately the questions
asked of the psychologist were extremely leading – unobjected to, and put that way in the
interest of expedition, but too many words came from counsel and not as many from the
psychologist as I would have found helpful. I am not a psychologist, but I have been a judge of
the Family Court, full time, for 11 years. I have developed specialized expertise in cases
involving children, through both training and experience. Part of the value added by a specialist
judge is this training and experience. I have seen cases of parental alienation first hand and have
heard and read about others. But on the technical aspects of a psychological syndrome, it is not
safe for me to rely on my own training or experience or my own appreciation of an article by a
psychologist. It may be that social science research can be admitted into evidence without other
proof in some circumstances, but I do not feel comfortable using the article in this case to attach
a label to these children or this father. That will not prevent me, however, from making findings
of fact, from all the evidence, relating to the elements of parental alienation syndrome identified
in the article or described in the oral testimony of expert and lay witnesses.
[66] Below I set out a fairly long recitation of the principal evidence at trial. I include only
the testimony and documentary evidence that I found to be both reliable and significant.
Evidence of the mother, the father and supporting witnesses
[67] In general I found the mother was a good historian. Her version of events was usually
borne out by documentation or other witnesses’ testimony. When confronted with unfavourable
or unpleasant aspects of her own behaviour, by her own lawyer or the father’s, she conceded her
errors and several times apologized for her bad judgement. Clearly she was wracked by guilt
over some of the things she had done. She was also angry at what the father had done. She
became teary at times, sometimes shouted and sometimes needed a break in her testimony, but in
general she remained in control through the painful reconstruction of difficult times in her life.
The father’s characterization of the mother as generally irrational and unstable was not borne out
by the evidence generally or by her own testimony and demeanour at trial. That is not to say that
she had never behaved irrationally or unreasonably – she admitted that she had. Sometimes her
judgement was extremely bad, such as when she surreptitiously placed tracking software on the
father’s computer after the parties had separated or when she showed up unexpectedly with the
family dog at the children’s school in an attempt to reach out to the oldest child. Sometimes her
suspicions of the father appeared farfetched, such as when she accused him of going to truck
stops for sexual liaisons. But I did not find that her testimony was generally unreliable as a
result. Her recounting of incidents and events was vivid, detailed, logical and consistent with the
records and the recollections of other witnesses. Her pain in recalling past events was immediate
and real.
[68] The father was in general a good historian too. He too acknowledged errors on his part,
but not on the important issues in the marriage or after the separation. His testimony was
marked, however, by a number of pitched battles with the mother’s lawyer, against whom he
clearly had considerable animus. If the mother was teary and angry by times, the father was
2007 CanLII 6240 (ON S.C.)

angry more often, which usually manifested in clenched, cold politeness, giving way to heat.
The father clearly was intent on the idea that the mother was mentally ill or unstable. This point
was crucial to him. He went furthest in cross-examination, saying he had witnessed delusions,
paranoia and major mental health disorders on the mother’s part. Aside from his say so, there
was no evidence of the sort. The evidence supported a finding that the mother was depressed,
anxious and suffering from post traumatic stress disorder, but nothing clinical beyond that. He
said that she had exploded, verbally, against him and sometimes (shortly before and after the
separation) the children. As she found herself alone in parenting the children and experienced
their resistance and rebellion, culminating in the departure of three of them, I do not doubt that
she became frantic by times. On these points he was correct, but not on what flowed from them.
He also suggested some form of conspiracy to harm him by the mother and the woman with
whom he lived in 2003-4, but had no evidence to back up his theory.
[69] I note that the father took inconsistent positions on the mother’s irrationality. He said on
the one hand she was a good and loving mother and homemaker until the end of the marriage,
and on the other hand she was prone to wild outbursts directed at him and sometimes the
children throughout the marriage. He portrayed himself as the rational, patient, long suffering
husband and father. This is where I have the greatest difficulty with the father’s position. There
were many incidents reported by the mother and other witnesses of explosive, disproportionate
anger by the father that far exceeded any evidence by the father and his witnesses of irrational
behaviour by the mother. The father’s anger went beyond mere flashes. Sometimes his ability to
hold on to anger and act on it later was truly chilling.
[70] The mother called as witnesses the woman with whom the father lived in 2003-4 and
other friends and neighbours. She also called members of her own family. All these people
recounted incidents of angry or threatening behaviour by the father over the years. They gave
credence to the mother’s description of the father as being domineering, controlling and brooking
of no opposition. Two women who were neighbours or friends of the family recounted, and
demonstrated in the witness box, fear of the father resulting from their having refused to support
or continue to support his position. It was also clear that the mother still has considerable fear of
the father.
[71] One time during a family vacation out west, the father stormed off and caught a flight
back east, leaving the mother there with three small children (and, to be fair, other adult
relatives) – just because the mother had been smoking. On another vacation, a 14 year old
relative directed physical aggression against the oldest child (then about the same age), and the
father responded with an oral tirade in front of all the children later that day well after the
incident was over, followed a year later by a sarcastic, vicious email to family members that
included racial epithets against the other child. The woman the father lived with testified about
hearing the father tell two of his children to go and pour acid, which they proceeded to do, on a
neighbour’s prized flower garden in retaliation for some slight of the father. He even supplied
the acid. I am aware of the father’s and the oldest child’s denial of this incident, but I accept that
it happened as described.
[72] I know that all of the mother’s witnesses on these points were in some sense partisan –
2007 CanLII 6240 (ON S.C.)

they were family or they were neighbours who became friends, and one was the woman who
lived with the father and whose daughter made disclosures resulting in his being charged with a
serious offence, an offence of which he was acquitted. But there were far too many incidents of
anger, verbal abuse and physical abuse or damage in the oral testimony from too many different
sources for me to conclude they were all lying or exaggerating. Even less could they be said to
be conspiring together. They all impressed me as being forthright and, for some, courageous in
the face of a persisting and reasonable fear of revenge. I described one incident of retaliation in
the preceding paragraph. There was another one in the last year, when the mother’s new partner
found his truck damaged to the extent of $4,500 shortly after he was confronted by the oldest
child, who angrily blamed the mother for something that happened to the child’s own vehicle.
The mother and some of the witnesses fear the older children too. Sadly, they have reason.
They have nothing to gain and have testified in full consciousness of a fear of revenge. The
father contradicted the evidence of several of the mother’s witnesses about what he said and did.
He did not have an explanation of why I should prefer his evidence to theirs or why I should
think that the mother had persuaded all these people to help “get him.” He was the one who was
trying to make himself look good and to deny the damaging things they had to say. They were,
despite their evident fear of him, testifying against him with no apparent reason to lie and
nothing to gain. I prefer the mother’s witnesses’ evidence for these reasons.
[73] Then there is the objective evidence in the form of the father’s letters and emails. There
are complaints and remonstrances galore, descending into argument and vituperation, against
every organization and every individual involved in rendering professional services to this
family. No attempt to help has gone unpunished, if it has not turned out completely to the
father’s liking.
[74] It was very important to the mother to establish that the father had physically abused her
before, during and after the marriage on at least six occasions. She had testimony from her
family members that showed her reports of violence were not recent fabrications. She had
testimony from a witness who heard the mother and father discuss the “Jamaica incident” with
an express admission by the father that he had struck the mother. Her own testimony went into
each of the incidents in great detail and with great conviction.
[75] The father denied, minimized, deflected and explained away all incidents of violence. I
understand and make allowances for the fact that it is easy to allege violence and it is hard to
disprove allegations of conduct that went on in private. But here there is more, far more, than
just the mother’s unsubstantiated story. I do not intend to make specific findings on each single
incident where the mother said violence occurred. It is not necessary. It is clear that the mother
accurately portrayed how the couple’s life went generally. On any point on which the father had
a firm opinion, compliance was the only acceptable response. Resistance was punished by
anger, verbal abuse and sometimes physical force. Parties outside the family received their own
form of punishment, by stealth, for standing in the way. This general approach of tolerating no
opposition, within or outside the family, is relevant to show that the father who treated his wife
that way would treat his children the same way. This is not to say that the father can not be a
devoted and loving parent, as he can, when his terms are met. This is also not to say the mother
was a perfect parent, because she was not. But her parenting mistakes are in the nature of
suspicious or jealous accusations, bad judgement, embarrassing the children in front of their
2007 CanLII 6240 (ON S.C.)

friends or at worst nagging, but not abuse, punishment or revenge. Her efforts in the nature of
self help went only as far as trying to gather proof of the father’s misdeeds, not carrying out a
punishment for them, as the father has done or caused to be done.
[76] On the issue of sexual misconduct by the parties I will not have much to say. The
father’s allegations against the mother in his answer went wildly beyond anything he offered in
his evidence. His lawyer wisely did not try to prove them. The mother led some evidence to
suggest infidelity and a penchant for viewing pornography by the father, but it was not strong
and in any event not particularly relevant to his parenting, as the children were made aware of
the sexual allegations by the mother, not by the father (except once), and there was no proof he
had exposed them to pornography. It would be different if he conveyed to the children that he
thought pornography in general and visual degradation of women in particular were acceptable,
but this was not established. The mother’s efforts before and during the litigation to prove
sexual misconduct and use of pornography by the father and to discuss it with the children were
misguided, unhelpful at best, sometimes harmful to the children and sometimes illegal. Even if
the mother proved everything she sought to in this area – and she fell far short – it would have
had no impact on the sole issue before me of access to the youngest child. If all the father did
was use pornography or encourage its use, there would have been an access regime for the fourth
child that could guard against that.
Evidence of the two oldest children
[77] As the two oldest children were called as witnesses by the father, it was not surprising
that they supported his version of the events during the marriage, to the extent they were aware
of them, and after the separation. They were both fine looking, intelligent, articulate young
people. That they were speaking their own minds in the witness box was clear. How they got to
the opinions they held was another question.
[78] The oldest child, who left the mother’s home the same day that the father did, clearly felt
that the mother’s words and actions that day amounted to an eviction, and this child felt truly
homeless for some time as a result of this eviction and the father’s temporary housing situation
that lasted through to the summer of 2003. There is no doubt that the mother hectored and
harangued, both before and after the separation, in an attempt to persuade this child that the
father had wronged her and, after the separation, in an attempt to win this child back. This child
expressed love for both parents in the past and commented that the mother was “110%” a
mother. Now, though, this child felt only disappointment – formerly it had been hatred – toward
the mother, and could not understand how it came to this. The only communication left between
them was by email, in connection with the child’s need to access money in bank accounts on
which the mother had signature powers. During oral testimony, despite considerable effort to
hold them back, the tears flowed from this child’s eyes (the mother’s too), but in coming and
going from the witness box on several occasions and during oral testimony, the child never made
eye contact with the mother or spoke to her, though she was sitting directly in front of the child,
and despite the necessity of walking directly toward her and passing within a few centimetres of
her on the way to and from the box.
[79] The second child was completely, chillingly devoid of any emotion during oral
2007 CanLII 6240 (ON S.C.)

testimony. Like the older sibling, this child too refused all eye contact with the mother and said
not a word to her. Though this child claimed to be no longer angry and to be open to speaking
with the mother to heal the relationship, there was no interest shown in doing that, and the child
admitted not acknowledging or saying hello to the mother. The child’s attitude is summed up in
this quote from cross-examination:
Q. You think your mother’s a liar?

A. Yes.
Q. We’re all liars?
A. Yes.
[80] Though both these children denied anger, the anger was still there, in its cold and
congealed form – much like the father’s cold, artificial politeness to the mother’s lawyer. The
alienation of these children from the mother is now complete.
The assessment and the assessor’s oral testimony
[81] The assessment was performed by an able, experienced psychologist over a seven month
period beginning in May, 2003. At the start of the process, the oldest child had been living with
the father for eight months and not seeing the mother. The three youngest children were in the
mother’s care but regularly spending time, including overnights, with the father and the oldest
child. In his intake interview with the assessor, the father predicted that the three youngest
children, starting with the second child, would one by one become estranged from the mother,
and that is exactly what happened to the second and third children.
[82] There was not a great deal in the report that was particularly remarkable, that is, in the
context of such a high conflict case in which three of four children were involved in the battle.
The assessor did note, however, that the father brought court papers in with him to an
appointment when the children were present and proceeded to discuss the issues in the court case
in front of the children, acknowledging that this was not normally desirable, but nevertheless
asking the children to confirm his version of events. This the children did (except the youngest,
who stayed out of the discussion), though the assessor noted the discomfort of the third child and
got the impression she was agreeing primarily in order to be obedient. The father’s psychometric
test scores showed no mental illness or personality disorder but were indicative of some
defensiveness or a tendency to present himself in an unrealistically positive light (to the extent
that one of the test results could not be taken as valid) and of a tendency to display hostility or
irritability. The mother also had been, in the assessor’s opinion, involving the children in
discussion of issues that should have stayed between the parents alone. The mother
acknowledged that this was correct. The mother’s test scores also showed no mental illness or
personality disorder but did indicate self esteem problems and a tendency toward a strong need
of affection and a dependent personality that was commonly associated with chronic anger at and
fear of being controlled by others. During the observed visit with the mother and three youngest
children (the oldest child declined to come), the two youngest children appeared comfortable and
affectionate with the mother, whereas the second child showed definite tension in the
relationship with the mother.
2007 CanLII 6240 (ON S.C.)

[83] In an individual interview, the oldest child expressed anger at the mother, though
describing her as a “perfect mom” until shortly before the separation and demonstrating a
formerly close and strong relationship with her. The child was seriously distressed by hearing
the mother talk repeatedly about the father’s sexual activities and was also very critical of the
mother’s changes in lifestyle (drinking, partying), about which the child had heard in detail from
the father’s friends. The father had also provided much information about events before and
after the parents’ separation, but the child said that this was often in response to the child’s own
requests. The child knew that the father had also kept a chart of the mother’s menstrual cycles
and used it to predict her behaviour. The assessor noted that the relationship with the mother had
changed drastically from very positive (before the separation) to very negative, to the point that
the child now called her by her first name rather than “Mom”. This child saw no hope of ever
repairing the relationship.
[84] The second oldest child mirrored much of the oldest child’s anger against the mother and
the reasons for it, notably the mother’s “bad mouthing” the father and the first child, though also
stating there was formerly a close relationship with both parents. The child had made several
attempts to move from the mother’s to the father’s home and hoped eventually to be permitted to
do so, saying that there was little hope of repairing the relationship with the mother. This child
had observed first hand some of the mother’s new partying habits, developed after the separation.
Both the first and the second child showed they were hurt and upset about what they perceived as
being pushed aside by the mother in favour of other people or interests.
[85] The assessor met with the third child twice. The first time, this child described good
relationships with both parents, a desire to stay away from the parents’ disputes and an
unwillingness to express a preference about the residential arrangements. The child was closer
to the two older children and less close to the youngest, from whom there was the greatest age
difference (five years). Three months later, in December (just before the completion of the
assessment), the father asked the assessor to reinterview the third child. This time the child
expressed a clear preference to live with the father in order to get away from the mother’s
annoying and upsetting criticisms of the father.
[86] The youngest child, only six during the assessment, had not very much to say, but did
express positive feelings toward both parents with more emphasis on a close relationship with
the mother.
[87] The report was dated February 17, 2004. In the discussion and recommendations, the
assessor noted that both parents had damaged the children by engaging them in the adult issues
between the parents. The oldest child had been “driven away” by the mother and “recruited” by
the father. The second and third children had become upset about the mother’s “bad mouthing”
since the separation and had chosen to live with the father. The youngest child had been
protected by young age, but was likely to become involved in the parents’ battles as time passed.
The following are excerpts from this section of the report:
The major challenge for this assessment has been to formulate recommendations that can
offer any hope of reducing the damage that is being done to family relationships.
Although I have conducted custody and access assessments for many years, I continue to
find it hard to understand how loving, capable, and intelligent parents can act in ways that
2007 CanLII 6240 (ON S.C.)

are so detrimental to their children. …
It is extremely unlikely that the family situation will improve for the children unless [the
parents] take steps to change the way they relate to their children and one another.
Unless this happens, I find it hard to have confidence that any arrangement for custody
and access could meet the children’s needs. The children need to maintain relationships
with both parents; however, as long as these relationships afford [the parents] the
opportunity to criticize and denigrate the other, the children will remain in a highly
stressful and damaging situation. …
[88] The assessor said that “ideally the four children would resume living together”, but in
light of the oldest child’s estrangement from the mother, this could only happen if they all lived
in the father’s care. This the assessor did not support, because there was consensus that the
mother, as full time caregiver, provided high quality care before the separation and could still be
their full time caregiver, whereas the father’s plan would be to have a nanny and family friends
providing care while he was away working. The father’s proposal would be far less conducive to
a stable family life than the mother’s, and this stability was especially important for the two
youngest children, who were still relatively dependent on a parent. The youngest, a six year old
dealing with the impact of the separation, had a particularly strong need for a secure, predictable
relationship with a parent who would be with her consistently, and in any event the youngest
child considered the mother to be the primary caregiver. As a result, the assessor recommended
the father be the primary care parent for the three oldest children; the mother be the primary care
parent for the youngest child; the father have all four children for six overnights out of 14 on a
regular basis; the mother have them for eight nights of 14; and equal sharing of holidays and
vacations.
[89] Finally, some more passages from the assessor’s concluding recommendations:
3. (ii) … My recommendations regarding access reflect my opinion that, in spite

of the damaging effects of [the father’s] involving the children in the marital conflicts, he
has a very strong and close relationship with his children. It also reflects my view that, as
stated above, no arrangement for custody and access can begin to address the problems
that exist in the family. When both homes expose children to pressure and alienation,
limiting contact with one parent offers no solution.
4. I also recommend joint, rather than sole custody, subject to the following provisions:
(i) Each parent agree to see a mediator who is experienced in working in the area
of high conflict separation and divorce. The mediator would meet initially with each
parent individually. Joint sessions would be scheduled when the mediator is confident
that two conditions are met. The first is that both parents recognize their respective roles
in creating and solving the problems they have created for the children … . The second is
the mediator being confident that [the father] is prepared to discuss matters with [the
mother] in a collaborative manner and respects that they need to have equal power and
influence in deciding matters relating to the children. …
(iii) One specific goal would be re-establishing a relationship between [the
2007 CanLII 6240 (ON S.C.)

oldest child] and [the] mother. [This child] would need a great deal of reassurance that
she fully understands how she contributed to their estrangement. It would also be critical
that [the] father express full support of [this child’s] resuming a relationship with [the]
mother and acknowledge that his own actions added to the problems that developed
between them.
(iv) Recognizing that there has been severe conflict in the marriage that has
included physical aggression, there would be provision for [the mother] to make
decisions that would normally be made jointly if efforts to reach consensus fail. …
5. I recognize that the above recommendations are not in accordance with [the second
and third children’s expressed wish to live with their father]. … In the long run,
however, I believe there can be more benefit to a plan that allows the children to have the
benefit of a stay-at-home mother and regular contact with their father. [The second and
third children] both recall that their relationships with their mother were close and
positive. Working towards restoring this quality of relationship should, in my view, be
the priority rather than implementing changes that would further alienate the children
from their mother.
6. Both [the mother’s and the father’s] personality profiles suggest characteristics that, in
all likelihood, have contributed to their marital difficulties. Neither profile, however,
suggests the type of personality or emotional disturbance that would seriously undermine
their parenting abilities or preclude their participating in efforts to restore a healthier
family environment for their children.
[90] When the report came out, it was about six or eight months too late. The attitudes of the
second and third children had hardened against the mother and they left her home within weeks
after the report’s release. The mother’s reaction to the report was, “Joint custody, it’s so
unrealistic, ‘cause [the father] won’t even talk to me.” Nevertheless, she supported the report
and wanted to implement it, knowing it would be hard, with four children going back and forth,
and knowing she was the one who would have to gather clothes and homework together. The
father said the report failed to address “the underlying problem”, which was the mother’s
irrational behaviour. The father’s reaction to the report was anger, directed at the assessor,
against whom he wrote a complaint to the college of psychologists. He called the report garbage
and told the mother he ripped it up. The recommended therapeutic mediation between the
parents did not happen. Neither did the reestablishment of the relationship between the oldest
child and the mother.
[91] The assessor testified at the trial, but had not seen any of the children or the parents since
December, 2003. Nevertheless the assessor was able to amplify on some of the comments in the
assessment report, based on information known at that time and based on hypotheticals premised
on the evidence at the trial about subsequent events. In 2003 the children were being put in a
situation where they were being alienated by one parent from the other – at that point, principally
by the father from the mother. Limiting the father’s time with the children to even just a day or
two would not deal with this situation. A lot of work needed to be done by both parents, and this
required insight into the effect their conduct had had on the children. The father showed no such
insight at the time. To implement recommendation 4 (iii) in the report (reestablishment of
relationship between oldest child and mother), it was critical that the father be fully supportive of
2007 CanLII 6240 (ON S.C.)

this, acknowledge that he had contributed to the problem and give permission and state the
expectation that the child’s relationship with the mother should continue. The assessor was
concerned that the alienation and damage would continue if the second and third children went to
live with the father and that their relationship with the mother, like the oldest child’s, also would
end. The last time the assessor saw the third child in December, 2003, the child was “worn out,
battle weary” and just wanted to go live with the father and “join forces” with the father and the
two older siblings.
[92] The assessor was asked to comment on some of the characteristics of parental alienation
syndrome as described in the literature, relating them to the children in this case. Children who
are subject to parental alienation syndrome (I will call them PAS children) are very powerful in
their views of the non alienating parent. The views are almost exclusively negative, to the point
that the parent is demonized and seen as evil. In this case, the assessor recalled receiving
something written by the oldest child describing the mother as a devil and saying that suicide
was preferable to living with her. PAS children feel empowered and are rewarded for attacking
the other parent, and feel no remorse or shame for doing so. In this case, the assessor recalled
the children describing their mother in obscene terms, in contrast with their earlier politeness and
their favourable descriptions of her before the separation. PAS children have a knee jerk,
reflexive response to support the alienator against the targeted parent, often on the basis of
minimal evidence or justification. PAS children broaden their attack to encompass members of
the other parent’s extended family. In this case, the oldest child had written a letter to the
maternal grandmother attacking her and the mother’s extended family. PAS children are
recruited by the alienating parent and alienated siblings to the alienating parent’s cause. In this
case, the then 12 year old third child was recruited by the second child – who actually gave
instructions in writing on what to do in order to cause trouble for the mother – and later engaged
in a letter writing campaign with the help of Court Watch, at the father’s instigation, and has
become a hero to the father’s and Court Watch’s cause. (I will have more to say about the role
of Court Watch later.) There was also an email from the third child to the youngest, setting out
in detail all the exaggeratedly terrible things that happened – blamed on the mother – when the
third child left the care of the children’s aid society without permission and was returned to the
foster home placement. With PAS children, you can not be sure who you are listening to – is it
the child, is it the alienating parent, or in this case, is it Court Watch? The letters purportedly
written by the children in this case, or many of them, contain language that is not appropriate to
the children’s age, education or maturity. The child might sign the letter, and passionately
believe in it and defend it, but the information comes from somewhere else. An older child
might well be the source of the information.
[93] Access, even supervised, by PAS children to a child living in the targeted parent’s home
would require confidence that the alienating system (parent and siblings) want contact because
they see the other parent as a good parent to have contact with. This would require recognition
by the alienating parent and the alienated siblings of the role they played in procuring the
alienation and a solid commitment to the goals of repairing the damage and reestablishing a
relationship between the PAS children and the targeted parent. Otherwise the PAS children
would see it as their job to recruit the unalienated child to their side and have the child join in
hating the targeted parent. To achieve success in repair and reestablishment of the relationship,
you must start with the power – in this case, the father – and have him not only on board, but
2007 CanLII 6240 (ON S.C.)

actively showing leadership toward all the children having a relationship with the mother.
Without a child having permission to change, a therapist can achieve nothing. There was a need
for the alienating parent to declare, “This is a crazy war, it needs to stop. I shouldn’t have done
what I did.”
[94] The assessor was asked whether one approach to ending the conflict in a PAS situation
was to end the relationship between the PAS camp (here, the father and three oldest children)
and the targeted parent (mother) and, in this case, the fourth child. The response was that if you
don’t believe you can take steps to end the alienation, it’s a sad result but the best way to
minimize the risk of future damage is to end the relationship. It isn’t a healthy way for children
to grow up, thinking they have to capture their sibling from an evil mother. The assessor knew
the fourth child would lose the relationship with the father and the other three children, but “that
may be the best we can do.” Asked whether continuing attacks on the mother were an important
consideration in determining where to go from here, the assessor replied that it was very
significant that the view of the mother was not being allowed to change.
[95] In cross-examination, the assessor agreed the father had a very strong and positive
relationship with the children. Further, the mother’s conduct in trying to sway the children
against the father, repeatedly and over a long period, contributed to their negative feelings
toward the mother and was a major source of complaint by the three oldest children. If the
children thought the mother was responsible for the sexual assault charge against the father or
that he was being mistreated by the justice system, that could feed alienation. However, the
assessor did not say these were the causes of the children’s alienation, but rather said it depends
on how the adults around a child behave in response to events and explain them. The evidence
the assessor was able to give, it was conceded, was based on a little information from over three
years ago and some hypothetical facts.
A second assessment
[96] The father arranged for a psychologist, Dr. Marty McKay of Toronto, to perform a
psychological assessment of the third child while the child was in hiding from the CAS in April,
2004. Dr. McKay was identified by a witness as being on an advisory body (now inactive) to
Court Watch. The father said he found Dr. McKay through Court Watch and, one afternoon in
his testimony at trial, said he took the child to her. The next morning, he said he did not take the
child, he merely arranged for the assessment and the child arranged for a ride to get there. The
difference does not matter – it is clear who the directing mind was.
[97] Dr. McKay did not testify at the trial. Her report was put before me by the mother, not
the father, and not because she adopted it. Rather, the point was to show that the father, Court
Watch and Dr. McKay were involved together in frustrating the court order that placed the child
in the care of the children’s aid society. Dr. McKay’s assessment took place without the
knowledge or permission of the CAS or for that matter the mother (who held joint custodial
rights with the father, before CAS intervention), at a time when the CAS and the mother did not
know and had not known for several weeks where the child was. Dr. McKay’s report expressed
sweeping conclusions on a number of contentious factual issues based entirely on her interview
(it appears there was just one interview) of only the child and no one else, as well as on
2007 CanLII 6240 (ON S.C.)

psychological testing of the child. On this basis, without any other input, Dr. McKay concluded
that the child was under serious stress and expressed conclusions about the conduct of others in
terms such as “abuse of power and trust”, “unreasonable”, “unconscionable”, “overzealous” and
“doing more harm than good”.
[98] That Dr. McKay would do the assessment at all is quite surprising. That she would
venture the conclusions she does is even more so. In any event, the report is of no use, except to
support the mother’s case that the father and others were using this child for their own purposes.
Canada Court Watch Project’s involvement
[99] The evidence recounted above shows that Canada Court Watch Project was more than
just a support group for the father and the older children – it was an actor in some of the events
involving this family.
[100] Two representatives of Court Watch testified at the trial. They were called by the
mother, not by the father, even though he was the one who went to them for help and put three of
the children into their hands. The Court Watch witnesses outlined the purposes of the
organization (some of them are set out in paragraph [6] above and some are in Appendix A),
what services it offers, and what involvement Court Watch has had in this case. They estimated
the paid up membership of the organization (at a cost of only $60 a year) as about 500 people
(apparently there is no membership list maintained), but claimed there were “a few thousand” or
“three or four thousand” supporters across the country.
[101] Court Watch operates a Family Justice Review Committee, which is “basically like a jury
system”, a group of people called together to review documents or circumstances of a case to see
if a complaint is justified or if action should be taken. It also provides a letter writing service for
people who contact the organization and it helps people fax letters to MPs and MPPs. In most
cases it does not investigate the complaints that come in, though sometimes it does. It tries to
talk to “the other side” in a complaint, though in most cases “the other side” will not talk to
Court Watch. It maintains a website with many pages on it, one of which (under construction at
the time of trial) was a Family Abuse Registry with a list of child protection workers, doctors,
psychologists, counsellors, lawyers and judges in respect of whom “reasonable evidence was
found to exist which would show that those individuals or agencies have acted against what
members of the community feel is the best interests of children and families.” One of the Court
Watch witnesses defined the “abuse” targeted by this registry as including a violation of rights
and freedoms, and specifically the prevention of contact with family members.
[102] Another service offered by Court Watch is preparing affidavits for children – as the
witness described them, older children, mature children, generally over 12 – for use by their own
lawyer if it is suggested the lawyer is not presenting their views. There is a template of such an
affidavit on the Court Watch website, using the facts of this very case (with identifying
information removed) as conveyed by or on behalf of the third child in this case and recorded by
Court Watch. The third child, the one who ran from CAS care, used Court Watch’s service to
prepare an affidavit and gave it to the lawyer appointed for the child by the Children’s Lawyer in
the child protection case.
2007 CanLII 6240 (ON S.C.)

[103] The so called template affidavit, on the website as a sample or model for other children to
use, includes an accusation that the mother called the police in order to have the child
apprehended and forced to go with them, so as to “force me out of my dad’s house and into
foster care as part of her campaign to make my life and my dad’s life as difficult as possible.” It
goes on to accuse the mother of knowing that her calling the CAS initially resulted in the child’s
“rights and freedoms being violated by the CAS and has forced me into hiding.” It also accuses
the mother of abusing the children and of “putting her need for revenge ahead of what is best for
her children.” It further accuses CAS workers of threatening and coercing the child in an attempt
to force the child to return to live with the abusive mother. It carries on for some 12 pages with a
litany of complaints and accusations against the mother, the CAS and its workers, the police, the
foster home, the lawyer appointed for the child and the presiding judge at a hearing the child
attended. It even complains about “unlicensed” social workers being employed by the CAS.
This is the kind of help in family and child protection cases that Court Watch has on offer.
[104] Also on the website is a section for children, which one of the witnesses said was aimed
at helping them to understand their legal rights. Part of the advice on that section of the site is:
Volunteer advocates with Court Watch can help you in a limited number of ways
depending on where you live and the ability to make direct contact with you. One way in
which we help children is by giving them answers to their questions when they feel that
CAS workers or their children's lawyer are not being truthful with them or not delivering
services in a fair and efficient manner. However, be aware that most children's lawyers
and children's aid workers will not like you speaking with us because in many cases they
don't want you to know your rights and freedoms or about some of the things you can do
to defend your rights and freedoms. Although there are a number of good CAS workers
and children's lawyers who do good work for children, unfortunately, there are many who
do not. Those who do not want you to know about us, generally are afraid that we will
show you how to expose them for doing an incompetent job and in some cases expose
them for breaking the law. One of our main mandates is to teach you your rights and to
make those who are supposed to be helping you, accountable for their actions. Where
you have been lied to and deceived by workers, we will even assist you to launch
personal lawsuits against those lawyers, CAS workers and foster care workers who have
not done their job properly, however, it is important that you gather the right evidence at
the time. We can't call you first so for us to be able to help, you must request our help by
yourself. If you do wish to contact us, you should do so of your free will and not feel that
you are being forced to do so by a parent or other family member, etc.
[105] The National Chairman of the Canada Court Watch Project (and of the National
Association for Public and Private Accountability and of the Family Justice Review Committee)
is Dorian Baxter, often referred to in oral testimony and on the Court Watch website as The
Archbishop Dorian Baxter. He is an ordained clergyman. He is also an Elvis Presley
impersonator. And he is responsible for the content of the Court Watch website, approving or at
least aware of what goes on the site, though he is not personally the author of the content.
[106] In the first day of this trial, I was referred to some of the stories or articles on the Court
Watch website, and I have quoted four of them in my ruling at Appendix B. As I said there,
these articles contain unflattering, defamatory, accusatory and even threatening language in
relation to those involved in this case. Their content and language were a large part of the need
2007 CanLII 6240 (ON S.C.)

for a publication ban – to protect those who would be participating in the trial from intimidation,
and to preserve the privacy of the children, whose very personal stories had already been
exposed in great detail by Court Watch.
[107] A month after I released my decision in this case (Appendix A), I was added to the site in
an article dated December 20, 2006 and brought to my attention that same day by someone who
sent it to me, questioning how the judiciary can justify publication bans and sealing orders. The
story quotes members of the family, including the children, and “many of their friends and
neighbours in the community, including professionals” – all unnamed. The following are the
most strongly worded parts of this two page article:
The Grinch who stole one little [child]’s Christmas!

Ontario Judge’s bizarre ruling ...
According to one family and many of their friends and neighbours in the community,
including professionals, Mr. Justice Craig Perkins … overstepped his lawful jurisdiction
as a judge and committed a judicial act that many would say only a heartless and cold-
blooded Grinch could do …
Friends and neighbours in the community who knew this family’s circumstances well
were shocked when they heard about the ruling and described the ruling as absolutely
bizarre and unjust.
Some who knew the child and family said that Justice Perkins should be tarred and
feathered and run out of town …
Instead of giving this [child] the security of [the] whole loving family, Justice Perkins
imprisoned the [child] into the clutches of … an abusive and controlling mother who
would stop at nothing to seek her revenge …
The order … is an insult to the administration of justice in Canada and an assault on
freedom and democracy.
The actions of Justice Perkins amount to the state taking children away from their parents
by force, something which was done under the law in Nazi Germany during World War
Two. …
Based solely on the fact that he failed to solicit the young [child’s] wishes should be
grounds enough to declare him as incompetent and unfit to sit as a family court judge. …
Instead, Justice Perkins thwarted justice …
To further keep the truth from being known to the public, Justice Perkins also took the
draconian step of sealing the court file until the [child] was 18 years of age.
In addition he ordered that the names of the family could not be published and not even
the names of the solicitors or any of the witnesses involved.
Such a gross and widespread publication ban … is unprecedented in Canada. …
Although the publication ban was bizarre, this case seemed riddled with other examples
of judicial interference and impropriety. [Reference is then made to steps taken by other
judges.] …
It’s time to put an end to this Judicial Tyranny.
[108] The language in this story, as in the others I referred to, is extreme and monumentally one
sided. The various people who have been involved in this family’s troubles and in this case are
painted as evildoers. There is no hint that any of the actions could have been right, or even well
intentioned. The page quoted above in the website’s section for children at least makes a nod
2007 CanLII 6240 (ON S.C.)

toward the existence of good CAS workers and lawyers, but the general tone is clear: good
workers and lawyers are the exception and the many bad ones do not want children to know
about their rights and will fight to cover up their nefarious deeds.
[109] The principal actor in the Court Watch organization appears to be Vernon Beck. He is a
semi retired heating and air conditioning consultant by training and occupation. He volunteers
his time to Court Watch as “investigative reporter”, mediator, “advocate for children and
families”, interviewer, recorder and adviser of children, letter writer, affidavit drafter and website
text writer. He has no formal training or instruction in any of these fields. He is self taught, over
many years. He was the Court Watch point of contact for the father, initially, and then the
children.
[110] The two oldest children confirmed that their father had introduced them to Court Watch
and in particular to Vernon Beck. It is clear, from the father’s own evidence, that he put the third
child in touch with Court Watch by providing the telephone number to call, but he said the child
took over from there. However, when the child decided to run away from the CAS foster home,
the father said (and one of the children confirmed), the two older siblings helped in the escape.
The third child was driven by the second child to Vernon Beck’s house initially, and then went to
a friend’s house. The older siblings arranged to pick up and deliver homework from school, and
once the father sent money with them, “a substantial amount”, but he claimed he did not know
where the child was and was in touch only when the child phoned him or sent an email.
[111] Vernon Beck interviewed the third child in this case and made a videotape of what the
child had to say. It was not produced at the trial. He discussed whether the child might want to
lay criminal charges against the mother and did not advise one way or the other as to the
desirability of charges. His priority was to provide education about the child’s rights and
freedoms, not see to it that the child returned to the care of the CAS or let the CAS or the parents
know that the child was alive and well, though he did point out to the child that there would be
repercussions from going “AWOL”.
[112] Vernon Beck was also provided with an audiotape of the third child, not of his making.
Several short clips from the audiotape were posted for some time on the Court Watch website.
They were made exhibits at trial. The recordings are of a 12 year old, reading (quite obviously)
from a prepared text, complaining about the care provided by the CAS and its foster home.
Some of the complaints are quite serious. This 12 year old was exposed to the public on the
Internet for what purpose? Certainly not for the purpose of rectifying the situation for the child.
[113] The father and the oldest two children agreed that Court Watch helped the children with
some of the many letters they wrote to therapists, politicians and other persons in authority. As
for the audio recordings on the Court Watch website, the father said he had no knowledge or
involvement. So both the father and the Court Watch member deny being involved.
[114] Court Watch holds itself out as a resource to help parents and families who are not
satisfied with the performance of the justice system or the children’s aid society. In a family law
or child protection case, there is by definition always one side (and sometimes more than one
side) that is not happy with the result. Court Watch is a haven, if not a magnet, for disgruntled
2007 CanLII 6240 (ON S.C.)

parties, whether or not their dissatisfaction is justified and whether or not there are any grounds
for complaint against the system or the institutions involved.
[115] Court Watch’s procedures in investigating or verifying complaints are set out above, as
described by its own representative. Their adequacy in general is not for me to say. I will only
comment on the witness’s likening of the Family Justice Review Committee to a jury, which is
very far off the mark. What the witness may have been thinking of is an American style grand
jury, which rules on the adequacy of evidence to justify proceeding to a trial on a criminal
charge. Juries (in the USA and here) are selected at random from the entire eligible population.
They are not hand picked from the 500 or so members of an organization with particular views,
or even from a few thousand supporters. The holding of preformed views on the subject of an
issue to be put before the jury disqualifies a potential juror from participating. The evidence
presented to a jury is vetted by a public prosecutor whose duty is to uphold the rule of law and
the proper administration of justice. The result of a grand jury’s consideration of an issue is a
simple yes or no as to whether the case should be permitted to go to a trial, which occurs before
an independent, impartial judge and another jury, again chosen at random from the whole
community and made up of people who have no prior knowledge of or association with the
evidence or the issues. Juries do not authorize investigations or actions like letter writing
campaigns, recording and publishing of children’s complaints, or passionate articles on websites.
Court Watch and its Family Justice Review Committee are nothing like a jury or any other part
of the justice system.
[116] The members of Court Watch should not delude themselves, if they think that children
(“mature” children of 12 or older, even) come to them on their own. Just as in this case, children
will come to them as a result of the search by their disgruntled parent for alternatives available to
oppose the justice system or the child protection system. In this case, the father was looking for
a way to counteract what he saw happening within the child protection case. He arranged for the
three children in his care – and as a result under his sway – to meet with Court Watch. Court
Watch took the children’s very personal stories and published them for all the world to see and
hear. It helped the third child run away from the lawful care of the children’s aid society and
failed to report the whereabouts or even the wellbeing of the child to the mother (who had joint
legal custody up until the CAS apprehension) and the CAS itself. It discussed with the child the
prospect of criminal charges against the mother, a serious potential aggravation of an already
tragic situation. It set Mr. Beck up as an alternative voice for the child, when the child already
had a lawyer appointed by the Children’s Lawyer. (Besides being lawyers, the Children’s
Lawyer’s legal panel members all receive specialized training in interviewing, understanding and
representing children. Mr. Beck’s background is set out above.)
[117] I carry no brief for the child protection system, the children’s aid societies and their
workers involved with this family, the Children’s Lawyer, the Children’s Lawyer counsel
appointed in the child protection case or the actions of any of them. They can be right, they can
be wrong and they can be badly wrong in individual cases. It is not for me to say how well or
how badly they performed in the child protection case involving this family. My point is that
Court Watch and its representatives have set themselves up as investigator, prosecutor, judge,
jury and executioner in respect of the family justice and child protection system involving this
family, and they have no training, no legal mandate and no standing on behalf of the public to do
2007 CanLII 6240 (ON S.C.)

so. They are self appointed, self taught, self satisfied and not at all self critical of themselves,
their actions or their practices. They exposed the children in this family to great risk of
emotional harm in the name of their notions of children’s rights and freedoms – not their best
interests. Mention of children’s best interests is quite sparse in the Court Watch materials put
before me.
[118] The representatives of Court Watch see themselves as guardians, self appointed guardians
and watchers on behalf of the public interest. I am reminded of a quote from the Roman poet
and commentator Decimus Iunius Iuvenalis (more commonly known as Juvenal), from his
Satires, book 6:
Sed quis custodiet ipsos custodies … ?

But who is to keep watch over the watchers themselves … ?
[119] My comments about Court Watch and its members are made because they were active
participants in events that have helped shape the outcome of this case. They helped the father
drive the wedge in further between the two camps – the father and the three oldest children
versus the mother – and made the prospect of any relationship between the camps more remote
than ever. Their intervention helped solidify the three oldest children’s alienation from their
mother and increase the risk of harm to their sibling if contact were to be restored. And so their
participation helped the mother’s case for a termination of access, which is not at all what they or
the father intended.
Alienation of the children
[120] Several witnesses recounted events showing actions by the father to influence one or
other of the children against the mother. Sometimes the children would exercise influence on
each other. Some of the alienation of the children from the mother was caused directly by the
mother.
[121] It seems the mother did several things wrong. She “badmouthed” the father and told the
children about his alleged sexual misdeeds. She metaphorically pushed the oldest child out the
door on the day the father left the home. She talked to friends about her children, expressing
concerns that came back to the children’s ears, causing them embarrassment. When one of the
children left home in favour of residing with the father, she pursued the child (chiefly by
telephone) in a desperate attempt to persuade the child to return. The assessor indicated that she
drove the children away, one by one, but that alone would not have resulted in their complete
estrangement. The father supplied the missing ingredient: he was there, ready to validate the
child’s upset or anger, and to encourage the child to act on it by limiting or cutting off contact
with the mother or by writing an angry letter or email.
[122] An early incident in the parties’ marriage involving a young relative of the mother
showed not only how irrationally and virulently the father could lash out verbally, but also his
penchant for and style of doing so in writing (in the form of letters or emails). That writing style
surfaced again and again in the documentary evidence and was taken up and imitated by the
2007 CanLII 6240 (ON S.C.)

three oldest children when they were not actually guided and directed in their letters and emails.
The woman with whom the father lived testified that she saw the father dictating letters for the
three children to sign, addressed to the mother and to a proposed therapist for the children, or
simply presenting them with letters he had typed for them to sign. Some of the many letters and
emails purportedly written by the children are clearly written in an adult voice. Others are
clearly more spontaneous and uninfluenced (especially the oldest child’s more recent emails to
the mother). There is a marked difference in format and style between the two. Some of the
letters (there are examples even in handwriting, clearly copied from a typed original) have the
look and style of documents prepared by Court Watch, whose assistance the father secured from
time to time.
[123] A former neighbour heard the father and the three oldest children on the telephone all
calling the mother names when she was trying to reach the second oldest child, and witnessed
verbal abuse directed at the mother by the three oldest children on more than one occasion. On
one of those occasions, the oldest child was egging on the second child. The woman who lived
with the father heard him having discussions with the children about events in the case and
making disparaging comments about the mother to the children, including calling her names like
slut, whore, druggie and parasite, all accompanied by obscenities, and then saw the children pick
up and use the same terminology about the mother. The mother tried to stay in contact by
telephone with the children, who were not going to see her, but the father persuaded his new
partner to cut off telephone contact by threatening to have the mother charged with harassment.
[124] After the father was arrested in December, 2004, the two oldest children took the
initiative to resume contact with the mother. They came for dinner accompanied by the third
child, who continued the posture of hostility and rudeness previously adopted by all three with
the mother. The oldest child said, “Cut her some slack, she loves us.” Immediately on receiving
this permission, the hostility and rudeness fell away. However, a few days later when the father
was released from jail and called the third child on the phone, the old attitude resumed and the
child immediately left to resume residing with the father.
[125] One of the counsellors whom the third child was to consider for the purpose of engaging
with the mother in reconciliation counselling recalled clearly the negative impression the father
had on the phone about the utility of therapy. When the father came for an appointment, he
proceeded to express his strong negative views about therapy, the family’s history, the mother
and the family courts in general, all in front of the child who was supposed to be considering
engaging in reconciliation counselling under the aegis of a family court order. The counsellor, a
very experienced social worker, concluded there was little hope for success, as the father was not
giving the child the necessary permission to engage in the process and his belief system had
tainted the child’s attitudes.
[126] The father was found in contempt of court for interfering with the placement of the third
child in the care of the children’s aid society. One of the witnesses at trial reported seeing the
father and the child walking together at a time when the child had run away from the foster home
in which the CAS had placed the child. When complaint letters came in to the CAS from the
father and the child, they appeared to be written by or with the assistance of the same person. In
their oral testimony, the father and both of the two oldest children all used exactly the same
2007 CanLII 6240 (ON S.C.)

terminology to explain why, though they claimed not to know where the third child was, they
were not worried about the child being in hiding: they knew the child was “safe” and they
“trusted [the child’s] judgement”. This was clearly a joint effort and a joint story line.
[127] More recent correspondence by the children may indeed have been prepared by the oldest
child (already 19 and finished high school) without direct intervention. However, the blame
heaped on the mother’s “feminist” lawyer for the mother’s actions and the telling passage “we
know what was done and said because it came back to us” [emphasis mine] make it clear that as
recently as last summer, the father was still influencing the children and the children.
[128] My evaluation of all the evidence leads me to conclude that the three oldest children
(especially the two oldest, about whom there is more, and more recent, evidence), remain
completely estranged from the mother. Though they may not be verbalizing much anger
anymore, it is still very much there. Further, though, they regard her as a disappointment, do not
understand her motivation and have largely lost their affection for her. There is no desire on
their part to re-establish the relationship with her. The father has no insight to offer them as to
how things have come to this pass, other than to say, in effect, that the mother was and still is
irrational – crazy. He is not prepared to give the real permission required, as opposed to
mouthing insincere verbiage, to allow the children to go back to a relationship with the mother.
They all remain a solid bloc of people subscribing to the same view, which is that of the father.
The assessor saw this happening in the course of 2003 with the third child. Nothing has
happened in the last three years to change that for the better, and in fact the criminal charges and
CAS apprehension in December, 2004, followed by the third child’s flight from the CAS and the
contempt of court ruling in 2005, have only made things worse.
Conclusions on access and restraining order
[129] From the separation in late 2002 and for the next two years, these parents and the
children went through the usual struggles over miscommunications and unilateral alterations of
an agreed access schedule. The mother showed that the father sometimes used the children to
convey his messages about changes or adjustments, and as the children grew older, they made
some of the changes on their own, culminating in a move of their residence to the father’s home
and then cutting off access with the mother. My findings about the father’s exertion of control
over or influence on the children are set out above. The access relationship spiralled downward,
resulting in a shift to access exchanges at the police station, and various suspensions of access.
[130] Access by the father and the other children did take place with the fourth child during
2005. The visits were supervised and were largely positive. Why, then, have I decided that
visits can not resume now?
[131] During the several weeks that the third child went into hiding from the foster home where
the child was placed under a child protection order, the father and the two oldest children were in
regular contact with the third child. The father was observed out walking with the child. The
two oldest children picked up homework from school and delivered it. The father secured the
child’s attendance for various interviews. Both the father and the two oldest children actively
participated in the disobedience of the court order placing the third child in foster care during the
2007 CanLII 6240 (ON S.C.)

investigation of very serious protection concerns. I have no reason to have confidence that the
father or the older children would respect terms of a new access order, such as terms prohibiting
negative comments about the mother or pressure on the child to move to the father’s home, any
more than they have respected previous court orders on various subjects. I note particularly the
father’s attitude toward the order for reconciliation counselling involving the third child during
the protection case. The father was having none of it, and neither was the child as a result. So it
could never happen. I see no sign of positive change on the father’s part in promoting a
reconciliation of the three oldest children with the mother. For that matter, I see no signs of a
real interest on the part of the two oldest children to reconnect with the mother. They regard her
as the source of the troubles in the family, have not forgiven her and are not motivated to do so.
[132] I might add that during the CAS wardship period, the third child sent emails to the fourth
child that were the beginning of a campaign to recruit the fourth child to the side of the father
and the other children. The third child when 10 years old had tried to stay out of the battle
between the parents, but gave up out of battle fatigue at the age of 11 and voted with the father.
The fourth child is only 10 now.
[133] Also during that period, at one of the supervised access visits with the fourth child, the
father began the visit not by greeting his child, but rather by haranguing the CAS worker about
the faults of the CAS and telling the child about all the terrible things the agency had done to the
third child during this time. Another visit was also devoted to criticizing one of the CAS
workers. This all took place in front of the youngest child. People who are having limited,
supervised visits are usually on their best behaviour during the visits and are focused on their
child. The father was not able to exercise enough self control to keep his focus or to refrain from
discussing matters his youngest child should not hear. Indeed, he said that the child had “the
right” to know what was going on between him and the CAS.
[134] In late 2004, when the oldest three children had been with the father for some months, he
had regular access scheduled with the youngest child, but cancelled it on several occasions or
simply failed to show up, disappointing the child. When the third child of the marriage was in
foster care in 2005, the father had the right to exercise access under supervision, but according to
a CAS worker who testified, he stopped doing so because he did not want the CAS there “to
twist things”. There is some risk that the father would cut off any resumed access to the fourth
child if things were not going just as he wanted.
[135] All of these factors raise serious concerns about restoring access under any
circumstances, raising the issue of exposing a child who is happy and doing well to the
significant emotional risks of being disappointed and hurt, if access is missed or stopped again,
and of being exposed to negative comments about the mother and pressure by the father and
siblings to join them.
[136] The mother’s partner testified that the youngest child of the marriage is clingy and
insecure (the mother also said this), though becoming less so with the passage of time, and has
not asked after the father or older siblings for close to a year. It is true that this child did look
forward to the visits with the father and the other siblings when they took place in 2004-5.
2007 CanLII 6240 (ON S.C.)

However, there is no evidence that the fourth child feels a loss or a void from the disappearance
of the father and siblings.
[137] The mother’s “bottom line” on access was that it should not be allowed because the
youngest child has been “dropped like a hot potato” by the father twice (suddenly stopping his
access); the child “needs to be protected from all this”, supervised access will not be enough
protection and in any event you “can’t have it forever”; “I’m scared of that man. It’s just not
going to work”; counselling won’t work because “he’s never followed through”; “no more fear,
no more court, we all just need to move on”.
[138] The mother’s “bottom line” is a nice summary of the risks and problems associated with
any restoration of access. The risks are so substantial and their likelihood is so great that I find
we have come to the point where, as the assessor said, cutting off the relationship between the
fourth child and the father and siblings is, for now, “the best we can do.” There are not enough
positives, and there are too many and too substantial risks and negatives, to do anything else.
When the child is older, if the child begins to express a desire to restore contact, the issue can be
addressed again. However, it should be left to the child to take the initial steps. I am quite
confident that if that happens, the mother now has the insight to know that the child must be
allowed to follow that path.
[139] To reinforce the order for no access to the fourth child, I find it necessary to use the
device of a restraining order against the father. He has shown already that he is quite prepared to
ignore court orders when they do not suit him. The restraining order includes specific, concrete
prohibitions that can be enforced, if need be by the police. They include a prohibition against
acting by proxy and against knowingly permitting others to do what the father is prohibited from
doing. The father has in the past used the children as his proxy (the damage to the neighbour’s
garden; making and changing access arrangements) and admitted that he acquiesced in (if he did
not actually encourage) his children’s circumvention of the child protection order.
Support
[140] The principal issue for the support arrangements was whether the mother could or should
have present income, so as to diminish her spousal support entitlement and to require her to
contribute child support for the three children living with the father. Both the mother’s own
evidence and that of the psychologist who examined her for the purpose of determining her
fitness to work convinced me that her present income, both actual and potential, is zero. She has
not recovered psychologically from the events since 2002 enough to be able to hold down a job.
At the end of the trial, the father effectively conceded that the mother was currently unable to
work. This was also consistent with his position on the state of her mental health.
[141] The only other points of difference respecting support concerned the mother’s ability to
access various benefits the father had through employment directly, without having to go ask the
father to obtain the benefits for her. The father gave no reason why this would be a problem for
him. There was no evidence that it could prejudice him. It seemed to me to be desirable to
remove a potential source of irritation and conflict. Certainly the obtaining of the benefits for the
mother and youngest child has caused problems in the past. That is why I have also included
2007 CanLII 6240 (ON S.C.)

direct access by the mother to the travel booking system, if the plan permits it. I debated whether
to include travel by the mother alone, without the child, in the travel benefit, but concluded that
in the absence of a spousal support order it would be appropriate to provide the travel benefit
only in conjunction with travel by the child..
[142] The language in the order about life insurance, as proposed by the mother, is again a
fairly standard sort of term to include in a high conflict case to prevent future friction. Again, the
father did not show any prejudice or give a reason for not including it.
[143] The terms sought by the mother about disclosure are a result of the father’s failure to
provide prompt income disclosure in the past and, again, a measure to prevent future conflict on
matters that should be, but have not been, routine. Once again, no reason was given to oppose
this and no prejudice was shown.
Costs
[144] Costs remain the only outstanding issue, as far as I am aware. I await the submissions of
the parties, as directed in my previous endorsement found at Appendix B.
___________________________________
Perkins J.
RELEASED: February 27, 2007
APPENDIX A
[All identifying information has been removed, so that this endorsement can be made public.]
[Abbreviations used in this endorsement: AM = applicant mother; RF= respondent father.]
SUPERIOR COURT OF JUSTICE – FAMILY COURT File no. 297/03

ENDORSEMENT
November 17, 2006
2007 CanLII 6240 (ON S.C.)

I conducted an 18 day trial in this case in October and reserved my decision. The parties were
eager to have the decision as soon as possible and in particular before the Christmas and New
Year holidays. It is not possible for me to complete my reasons in time for that, but it is possible
for me to communicate the elements of my decision at this time. My reasons will follow after
the turn of the year.
There will be a final order, dated today, embodying the terms below. The language used below
is only an endorsement and needs to be fleshed out in the formal order. The parties’ lawyers
may incorporate further particulars in the formal order. If they are unable to agree, the usual
process for settling the form of an order as provided in the rules is to be used.
Divorce
On consent, divorce granted, effective in 31 days. If desired, the divorce may be in a separate
order.
Custody and access
On consent, under the Divorce Act:

Custody of [youngest child] to AM;
Custody of [second and third child] to RF;
[Youngest child] may travel with AM or on her own without RF’s consent;
[Second or third child] may travel with RF or on their own without AM’s consent;
Each party shall cooperate in securing passports and other travel documents required for travel
by [youngest, third or second child] as permitted by this order.
Not on consent (also under the Divorce Act):

No access by RF or any of the other children to [youngest child].
Restraining order
Not on consent, RF is restrained under section 46 of the Family Law Act and section 35 of the
Children’s Law Reform Act from:
• molesting, annoying or harassing AM or [youngest child];
• communicating directly or indirectly with [youngest child];
• coming within 100 metres of AM, [youngest child] or any person while the person is caring
for [youngest child];
• coming within 100 metres of [youngest child]’s school, AM’s home, or any other place
where RF knows [youngest child] or AM is actually present or is ordinarily present at the
time;
• encouraging or explicitly or implicitly permitting any person to approach [youngest child]

with a communication from RF or any of the other children [names];
• encouraging or explicitly or implicitly permitting any person to do on his behalf or for his
benefit anything he is restrained from doing.
2007 CanLII 6240 (ON S.C.)

This restraining order expires on August 9, 2014, unless renewed on a motion to the court.
Child support
All the relief in relation to periodic child support current payments and arrears was on consent,
with two small exceptions. The agreed terms were set out in paragraphs 10-12 of the draft order
provided to me at the end of the trial by AM’s lawyer. The points of disagreement were shown
in italics in the draft. The italicized passages are not to be included in my order. A statement
should be added at the beginning of paragraph 12 that the court finds the income of AM for child
support purposes to be nil, and the existing sentence should begin with “Despite the mother’s
income, ...”. The child support is under the Divorce Act.
Children’s trust and education expenses
On consent, order in terms of paragraphs 13-17 of the draft order provided at the end of the trial.
These are terms of child support under the Divorce Act.
Benefits
On consent, order in terms of paragraphs 18-21 of the draft order provided at the end of the trial.
Not on consent, the italicized passages in paragraphs 18-21 and the concluding sentence in
paragraph 20 are to form part of the order, but not the words “or without” in the second last line
of paragraph 20. In addition, not on consent, there is to be a provision requiring RF to request
and to cooperate in securing direct access by AM to the voice recognition booking system so that
AM can make her own bookings if the plan permits. These are terms of support under the
Divorce Act.
Spousal support
On consent, order under the Divorce Act in terms of paragraphs 22-27 of the draft order provided
at the end of the trial. To paragraph 22 should be added a statement of the court’s finding that
AM’s current income for spousal support purposes is nil, immediately before the last sentence
(in italics, but consented to at trial).
Life insurance
On consent, order as in the first sentence in paragraph 28 of the draft order. Not on consent,
order as per the italicized four sentences, but not referring to an offer. These are terms of support
under the Divorce Act.
2007 CanLII 6240 (ON S.C.)

Disclosure
Not on consent, order in terms of paragraphs 29-30 of the draft order, but in paragraph 30, the
reference is to be to a direction in the form provided for in the Family Law Rules or in a form
acceptable to the Canada Revenue Agency or its successor from time to time. These are terms of
support under the Divorce Act.
Other matters
Paragraphs 32-34 of the draft order are to be included. Counsel are to agree on the dates for
serving and filing written submissions. The submissions are to be in type not smaller than 12
point, not to exceed five pages (three pages for AM’s reply) plus bill of costs, relevant offers and
authorities. The submissions are to be sent to me via the Newmarket trial coordinator. I am to
be contacted through the Newmarket trial coordinator to schedule the oral costs submissions.
“C. Perkins”
__________________________________
Perkins J.
APPENDIX B
COURT FILE NO.: 297-03

DATE: October 11, 2006
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
RE: C.S. v. M.S.
BEFORE: Mr. Justice Perkins

COUNSEL: [Names not public – see par. [23] below], for the applicant mother
[Name not public – see par. [23] below], for the respondent father
2007 CanLII 6240 (ON S.C.)

[Name not public – see par. [23] below], for Children’s Aid Society
Vernon Beck in person, on his own behalf and on behalf of members of Canada
Court Watch Project, an unincorporated association
RULING AT TRIAL – PRESENCE OF MEMBERS OF THE PUBLIC,

PUBLICATION BAN AND SEALING OF COURT FILE
Issues
[1] At the beginning of this trial, the mother moved for an order to do any or all of the following:
seal the court file; exclude persons belonging to Canada Court Watch Project from being present
at the trial; ban reporting of the evidence and submissions at the trial; and prohibit or limit the
use of a tape recorder by the father to record the trial.
[2] The CAS supported restrictions on the reporting or other disclosure outside the trial of
evidence relating to a prior child protection case involving this family. That case is now over
after the application by the CAS was withdrawn, before any finding in need of protection. The
father opposed all the relief sought except the limiting of disclosure of evidence relating to the
child protection case, where he agreed any disclosure should not contain information identifying
a child involved in that case.
[3] Mr. Beck submitted that he and his organization, Canada Court Watch Project (an
unincorporated association, usually referred to as just “Court Watch”), should be permitted to
attend the trial and publish reports of the trial evidence and submissions. In his submissions, Mr.
Beck claimed that he was a member of the media or a journalist.
[4] In support of her motion, the mother gave brief oral testimony that did not assist me much.
The father did not offer any evidence. The mother also tendered a number of prints of extracts
from the website www.canadacourtwatch.com, run by Canada Court Watch Project. Mr. Beck
acknowledged that the extracts were from his organization’s website. The mother, father, CAS
and Mr. Beck told me I could look at this website for myself, which I did. The extracts I was
given were fairly typical of the contents of the site, from my cursory examination. The first
paragraph on the welcome page of the website contains the following message from the National
Chairman of the organization:
I would like to request your indispensable support to assist us in our endeavor to bring an
end to the needless injustices being perpetrated against many innocent children and
families by institutions such as our family court system and branches of the Children's
Aid Society.
Background facts
[5] The mother’s submissions included a number of facts that were accepted or not challenged
2007 CanLII 6240 (ON S.C.)

by the other three participants in this motion. The evidentiary record for the motion was not
really satisfactory, but I must take the evidence as it has been provided.
[6] This trial is the culmination of a high conflict family law case in which four children, ages 10
to 19, are involved. The three oldest children live with the father. The youngest lives with the
mother. Custody, access and support issues are before the court at the trial. I am told that the
father intends to call some or possibly all of the children as witnesses in his case. There was a
child protection case earlier, as mentioned above, and although that case is now over, I am told
that some of the CAS workers will be called to testify at this trial.
[7] The mother has assembled some expert evidence for this trial from professionals. Other
evidence will come from CAS workers who provided evidence in the protection case. Many of
those who have provided or will provide this evidence have been named, or described without a
name, on the Court Watch website in unflattering or even defamatory terms, with an invitation to
the public to comment on their experience with the person (positive or negative), in the context
of a review by Court Watch of the person’s work, at no cost to the members of the public and
with the promise of confidentiality. For one of the witnesses to be called in this trial, there is
available on the site a complete copy of a formal complaint letter to a professional disciplinary
body, with only the professional’s name removed. For some of the witnesses there is an implicit
threat of a future lawsuit. For some there is an accusation of unlawful conduct. Even a judge
who presided over part of this case is the target of such comments. The following are quotes
from the Court Watch website, provided in the evidence on this motion:
[County name] CAS worker submits highly flawed and unprofessional affidavit …
… Legal experts reviewing the documents of this CAS “child protection worker” have
indicated that this worker’s sworn evidence is highly flawed, contrary to other evidence
and in the opinion of one legal researcher, “typical of the type of garbage put before the
courts by these unlicensed and unregulated CAS workers.” Court Watch has been
advised that the parties involved are undertaking a comprehensive analysis of this
worker’s affidavits as well as other court documents for the purpose of ascertaining legal
liability for the violation of the girl’s rights and freedoms. …
Madame Justice [name] – [name of city]’s Judicial Tyrant

… In what appears to be an attempt to hide possible judicial misconduct, Justice [name]
has unlawfully blocked members of the media from her court contrary to the long
standing tradition of freedom of the press. … Her actions in ordering the media out were
arbitrary and without any reasonable foundation in law.
***** Upcoming News Story *****

… The CAS workers who seem to be at the front of what many would consider to be
malicious persecution of this girl and her family include unlicensed CAS worker [name
of worker and of CAS] and unlicensed CAS worker [name of worker and of CAS]. An
investigation will be conducted to see if the unlicensed CAS workers involved in this
case should be placed on the Family Justice Review Committee’s “Family Abuse
Registry List” for CAS workers who have, by community standards, abused children or
members of their family.
Dad fights back against what he says is a “hired gun” … psychologist …
2007 CanLII 6240 (ON S.C.)

At the link below is a copy of a complaint letter sent off to the Ontario College of
Psychologists by a family who is fighting back against what many in Ontario see as
growing problem of corruption and collusion between some members of the legal and
psychology professions in Ontario. It seems that this one … lawyer and a …
psychologist will use any dirty trick they can to destroy a family for a fee.
[8] Counsel for the mother pointed to a number of postings on the Court Watch website that
contained very detailed references to the facts of this case, though they omitted the names of the
parties and children. Those who knew the family or knew of this case – and especially the four
children themselves – would have no difficulty accessing the website or recognizing the
descriptions. Mr. Beck submitted, however, that the omission of the names was sufficient to
prevent the general public from identifying the individuals involved.
[9] The mother’s submissions and evidence were aimed at demonstrating a risk of harm to
family members and others from the publicity generated by Court Watch. The mother submitted,
and it was not denied, that every professional associated with the case has been reported to the
relevant professional governing body. For example, the mother’s therapist has been attacked,
without being named, on the website. The mother submitted she may not have the benefit, or the
same benefit, of this therapist (or another, future therapist) as the result of the adverse publicity,
a complaint to the professional governing body against the therapist and the fear of future
publicity or complaints.
[10] Mr. Beck submitted that he and his group perform an important public function in
scrutinizing the family justice system, including the work of various professions within it, and
publicizing the flaws of the system or the professions. He conceded that his group proceeds to
do this rather vigorously and in a style that participants in the system find hard to accept, but
stoutly maintained that he and his group operate within the law and in an effort to secure justice
for all family members, including the mother in this case.
Applicable law
[11] Against this backdrop, I need to examine the statute and case law.
[12] As this is not a child protection case, the applicable statutory provisions are the Courts of
Justice Act, R.S.O. 1990, c. C.43, ss. 135-137:
PUBLIC ACCESS
Public hearings
135.(1) Subject to subsection (2) and rules of court, all court hearings shall be open
to the public.
Exception
(2)The court may order the public to be excluded from a hearing where the possibility
of serious harm or injustice to any person justifies a departure from the general principle
that court hearings should be open to the public.
Disclosure of information
(3)Where a proceeding is heard in the absence of the public, disclosure of
information relating to the proceeding is not contempt of court unless the court expressly
prohibited the disclosure of the information. R.S.O. 1990, c. C.43, s. 135.
2007 CanLII 6240 (ON S.C.)

Prohibition against photography, etc., at court hearing
136.(1) Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other
record capable of producing visual or aural representations by electronic means or
otherwise,
(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is
to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has
been convened where there is reasonable ground for believing that the person is there for
the purpose of attending or leaving the hearing;
(b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion
picture, audio recording or record taken in contravention of clause (a); or
(c) broadcast or reproduce an audio recording made as described in clause (2) (b).
R.S.O. 1990, c. C.43, s. 136 (1).
Exceptions
(2)Nothing in subsection (1),
(a) prohibits a person from unobtrusively making handwritten notes or sketches at
a court hearing; or
(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively
making an audio recording at a court hearing, in the manner that has been approved by
the judge, for the sole purpose of supplementing or replacing handwritten notes. R.S.O.
1990, c. C.43, s. 136 (2); 1996, c. 25, s. 1 (22).
Exceptions
(3)Subsection (1) does not apply to a photograph, motion picture, audio recording or
record made with authorization of the judge,
(a) where required for the presentation of evidence or the making of a record or
for any other purpose of the court hearing;
(b) in connection with any investitive, naturalization, ceremonial or other similar
proceeding; or
(c) with the consent of the parties and witnesses, for such educational or
instructional purposes as the judge approves.
Offence
(4)Every person who contravenes this section is guilty of an offence and on
conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of
not more than six months, or to both. R.S.O. 1990, c. C.43, s. 136 (3, 4).
Documents public
137.(1) On payment of the prescribed fee, a person is entitled to see any document
filed in a civil proceeding in a court, unless an Act or an order of the court provides
otherwise.
Sealing documents
(2)A court may order that any document filed in a civil proceeding before it be
treated as confidential, sealed and not form part of the public record.
Court lists public
(3)On payment of the prescribed fee, a person is entitled to see any list maintained by
a court of civil proceedings commenced or judgments entered.
Copies
(4)On payment of the prescribed fee, a person is entitled to a copy of any document
the person is entitled to see. R.S.O. 1990, c. C.43, s. 137.
2007 CanLII 6240 (ON S.C.)

[13] Indirectly relevant are the provisions of the Child and Family Services Act, R.S.O. 1990,
c. C.11, s. 45. Though not directly applicable here, the mother and the CAS have called them in
aid in their submissions on how I should approach publication of evidence that was first
presented to this court in the protection application. The father has also agreed that they should
be followed here in relation to that evidence, and Mr. Beck agreed as well. The relevant
provisions are:
45.(1) In this section,

“media” means the press, radio and television media.
Application
(2)This section applies to hearings held under this Part, except hearings under section
76 (child abuse register).
Hearings separate from criminal proceedings
(3)A hearing shall be held separately from hearings in criminal proceedings.
Hearings private unless court orders otherwise
(4)A hearing shall be held in the absence of the public, subject to subsection (5),
unless the court, after considering,
(a) the wishes and interests of the parties; and
(b) whether the presence of the public would cause emotional harm to a child who
is a witness at or a participant in the hearing or is the subject of the proceeding,
orders that the hearing be held in public.
Media representatives
(5)Media representatives chosen in accordance with subsection (6) may be present at
a hearing that is held in the absence of the public, unless the court makes an order
excluding them under subsection (7).
Idem
(6)The media representatives who may be present at a hearing that is held in the
absence of the public shall be chosen as follows:
1. The media representatives in attendance shall choose not more than two
persons from among themselves.
2. Where the media representatives in attendance are unable to agree on a choice
of persons, the court may choose not more than two media representatives who may be
present at the hearing.
3. The court may permit additional media representatives to be present at the
hearing.
Order excluding media representatives or prohibiting publication
(7)The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the
hearing,
where the court is of the opinion that the presence of the media representative or
representatives or the publication of the report, as the case may be, would cause
emotional harm to a child who is a witness at or a participant in the hearing or is the
subject of the proceeding.
Prohibition: identifying child

(8)No person shall publish or make public information that has the effect of
identifying a child who is a witness at or a participant in a hearing or the subject of a
proceeding, or the child’s parent or foster parent or a member of the child’s family.
2007 CanLII 6240 (ON S.C.)

Idem: order re adult
(9)The court may make an order prohibiting the publication of information that has
the effect of identifying a person charged with an offence under this Part.
Transcript
(10)No person except a party or a party’s solicitor shall be given a copy of a transcript
of the hearing, unless the court orders otherwise. R.S.O. 1990, c. C.11, s. 45.
[14] The leading case on all the issues relating to openness of the courts and limits on
publication of court cases is Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175.
It establishes that openness is the rule and secrecy the exception, in the interest of promoting
public confidence in the integrity of the courts and public understanding of the administration of
justice. Individual sensitivities are generally not enough to close the court or its files. There are
some old recognized exceptions, which include cases involving minors. The central principle in
the majority decision of Dickson J. seems to be that “… curtailment of public accessibility can
only be justified where there is present the need to protect social values of superordinate
importance. One of these is the protection of the innocent.” Later in the case, however, Dickson
J. commented, “The effective administration of justice does justify the exclusion of the public
…” when a search warrant is being sought. The efficacy of the search and seizure in the criminal
process would be severely hampered by presence of the public, who could give advance warning
to the owner of premises sought to be searched, thus frustrating the process.
[15] The mother tried to persuade me that the publicity of Court Watch, with its attendant
implicit and sometimes explicit threats of investigation, publicity and litigation, can frustrate the
court process when expert evidence is required, as Court Watch can make that evidence hard or
impossible to get. I can not go as far as the mother would have me go here, on the evidentiary
record I have. I do recognize, however, that Court Watch (whoever they are) have in a very
personal way gone after several of the witnesses that the mother must rely on in order to prove
her case. As the mother submitted, this must necessarily have some chilling effect in this case,
or if not in this case, then in the next case, or the one after that. Sooner or later, the hatchet job
that Court Watch perform on people on their website will have an impact on the willingness of
witnesses in family law cases, or lawyers, or potentially even judges, to play their part in the
justice system. Court Watch say that they are performing the function of making sure people do
their job with care and professionalism. I find there is a real risk that Court Watch, sooner or
later, will make witnesses unwilling to come forward and give their evidence fully and fairly, out
of fear of reprisals; will make lawyers unwilling to take on cases where they know their client
has two adversaries, Court Watch and the other party; will make judges hesitant to make the
hard judgement calls they must make in determining hard cases. The continuing availability of
forthright witnesses and fearless lawyers and judges in family law cases is one of those social
values of superordinate importance referred to in Nova Scotia (Attorney General) v. MacIntyre,
[1982] 1 S.C.R. 175.
[16] Relying on M.S.K. v. T.L.T., [2003] O.J. No. 352 (C.A.), reversing [2002] O.J. No. 4179
(S.C.J.), the mother submitted that a case where risk of harm to a child is found results routinely
in a publication ban. The risk of harm in that case was of kidnapping or other financial
victimization of the child of an extremely wealthy family. Regrettably, the evidence I have been
given on the issue of risk of harm here is not as fulsome as it could be. I have been asked to take
judicial notice of the fact that 10 year olds can go on the Internet and gain access to the sort of
2007 CanLII 6240 (ON S.C.)

damaging information that Court Watch is in the habit of publishing, including specific evidence
from this case. I do know that in this case, the father was found in contempt of an order that
placed the third child in the care of the CAS and was ordered to return the child to CAS care. I
was told by Mr. Beck that the head of Court Watch returned the child to the CAS offices. I also
know that the wishes of the youngest child, and whether they have been influenced, are a central
issue in the case. And it is clear from other cases cited by the mother that the longstanding
Chancery practice of non publication of minors’ cases is still followed to some extent.
Protection of innocent children is another of those social values of superordinate importance
referred to in Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175.
[17] T. v. T., [2003] O.J. No. 132 (S.C.J.), a family law case following a civil case, T. (S.) v.
Stubbs, [1998] O.J. No. 1294, adopts the tripartite test used for injunctions (serious issue to be
tried, likelihood of irreparable harm, balance of convenience in favour of injunction). However,
T. v. T. did not result in a publication ban or even the use of initials instead of the parties’ names
when the case went forward, in part because many of the facts of the case were already in the
public press. One of the mother’s grounds for complaint against Court Watch is the prior
publication of the details of this case. However, it can hardly be said that the Court Watch
website has the same degree of publicity as the daily press.
Conclusions
[18] Returning to the statutory test, has the mother established, on the balance of probabilities
that the risk of harm (no injustice was suggested here) to any person justifies a departure from
the general principle that the public can attend trials? Mere sensitivity is not enough, but risk of
harm to the youngest child is a serious issue here. I am also persuaded that the witnesses
referred to on the Court Watch website have already suffered harm from the publicity and the
fear of further publicity is a real risk of harm to them, particularly from the way the Court Watch
website reports on matters in the courts. Is the remedy required the exclusion of some or all of
the public from the trial itself, or is there a less intrusive approach that protects from harm while
allowing public access to the trial? I must say I was not encouraged when Mr. Beck, in making
his submissions, said that he and his organization would comply with any “reasonable” order of
the court. He quickly amended his submission to drop “reasonable”. I was also dismayed to see
that he handed out a copy of a decision he relied on from a child protection case that did not
suppress the names of the parties. Despite these errors and the unsavoury aspects of the Court
Watch website, I am still very reluctant to keep any of the public, including Court Watch, out of
the courtroom. I expect that the order I make will be obeyed.
[19] There is also the practicality of the remedy sought by the mother, which would exclude
specifically the members of the unincorporated association known as the Canada Court Watch
Project from the courtroom. Is there a known or defined membership? I do not know. Even if
there is, how will membership be ascertained by court staff each day as members of the public
come into the courtroom? And what would stop Mr. Beck or anyone else from leaving the
organization and forming a new one the next day?
[20] Public access to trials and hearings, including access by an organization that has as part
2007 CanLII 6240 (ON S.C.)

of its mandate “to bring an end to the needless injustices being perpetrated against many
innocent children and families by institutions such as our family court system” (see par. [4]
above), is an important part of making sure that justice is not only done, but also seen to be done.
In balancing the risks of harm against the strong presumption in favour of openness of the court
system, I am trying to craft a remedy that minimizes the risk of harm while maximizing public
access to this trial. That is where justice can be seen to be done. But as the CAS counsel
reminded me, though section 45 of the Child and Family Services Act (reproduced above)
provides for media access to cover child protection trials, it does not provide for access to the
court documentary record of the case.
[21] The end of seeing that justice is done in this case can be met by allowing public access to
the courtroom for the trial, subject always to my discretion as the trial judge to control the
process of the court as individual situations arise. The prevention of harm to the family
members, witnesses and others can be achieved by a ban on the publication of identifying
information respecting any of them.
[22] The documentary evidence, which includes affidavits, notes and records of the CAS and
other highly personal reports and records relating to the parties and the children, is not so crucial
to the principle of open justice as the conduct of the trial itself. I think a time limited sealing
order will do what is necessary to protect the children until they are all adults, at which time the
need for protection will end, but any evidence arising out of the child protection proceeding in
the form of affidavits, productions from the CAS, and workers’ notes and records must remain
sealed, just as it would in the child protection case file.
[23] The order I make is as follows:
• The motion to exclude members of the public is refused.

• There will be a publication ban on the name, address, city or town of
residence or work, educational institution and any other identifying
information of any party, child (including children over 18), witness or
potential witness (according to the parties’ witness lists already provided
or as amended orally or in writing) or lawyer in the case.
• The court file, except for orders and reasons for decision, will be sealed
until the 18th birthday of the youngest child.
• The evidence in the file from the protection proceeding, including
affidavits by CAS workers, CAS records and individual workers’ notes
and records, will remain sealed after that date.
Some incidental issues
[24] It has been suggested, though it was not made an express part of the motion put before
me, that Mr. Beck may want to be considered a “journalist” within the meaning of section 135 of
the Courts of Justice Act so that he can tape the trial. I have seen no evidence that he qualifies as
a “journalist”. I am aware that Mr. Beck was accepted at least once as a member of the “media”
within the meaning of section 45 of the Child and Family Services Act. Again, I have seen no
evidence that he qualifies and I am not persuaded by the decision that he gave me supporting this
2007 CanLII 6240 (ON S.C.)

result that the issue was fully addressed.
[25] I have also been made aware that the mother is concerned about the use by the father of a
tape recorder at the trial. In light of the publication ban order that I have made, that issue should
no longer be of great concern. Let me indicate, however, that since we have (on consent of the
parties) a witness exclusion order, it would be doubly improper for the evidence at trial to be
disclosed to any witness.
“C. Perkins”
___________________________
Perkins J.
DATE: October 11, 2006

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Court File No.

2007 CanLII 6240 (ON S.C.)

C.S. Names of counsel not published, in

REASONS FOR DECISION

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• molesting, annoying or harassing the mother or the youngest child;

Family and case history

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Order for custody

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Order restraining harassment

Order restraining harassment

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Evidence at trial generally

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Evidence of the mother, the father and supporting witnesses

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Evidence of the two oldest children

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Q. You think your mother’s a liar?

The assessment and the assessor’s oral testimony

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3. (ii) … My recommendations regarding access reflect my opinion that, in spite

(iii) One specific goal would be re-establishing a relationship between [the

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Canada Court Watch Project’s involvement

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The Grinch who stole one little [child]’s Christmas!

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Sed quis custodiet ipsos custodies … ?

Alienation of the children

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Conclusions on access and restraining order

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RELEASED: February 27, 2007

[Abbreviations used in this endorsement: AM = applicant mother; RF= respondent father.]

SUPERIOR COURT OF JUSTICE – FAMILY COURT File no. 297/03

November 17, 2006

2007 CanLII 6240 (ON S.C.)

Custody and access

On consent, under the Divorce Act:

* Upcoming News Story *