Appeal Decision December 6, 2017 Part 1

The appeal decision being released is why this blog is coming out now.  Out of respect for the case, I waited to post the decisions and my opinions on them until after the parties have exhausted their appeals.  Sandy claims she’s going to go to the Supreme Court next, but she’s not educated enough on the law to realize that she would have to have one judge dissent to be eligible to appeal to the Supreme Court.  The other reason I am standing up against her is that in the recent past, I retired from the legal field and have nothing to lose by standing up against her.  It doesn’t mean that I am interested in having her crazy directed at me, but it does mean that I’m safer than a lot.  Her anger in her live feed yesterday just showed how hostile that she can be.  I’m sure the kids, and the father were frightened when she had her outbursts.  It’s quite apparent by her behaviour that she exhibits, that she is not the quiet little abused spouse that she would like people to see her as.  Other than continuing to file motions in Family Court, the Order and the decisions from April, 2016 stand.  The fact that 3 more judges agreed that she was virtually right in everything she did and that what she did was appropriate just strengthens the case that Sandy was in the wrong.  Not that she realizes it.  There’s a lot of background that’s reiterated from the prior decisions.  I’m not going to go into depth with that.  I will however include the background that I feel is relevant and wasn’t shown clearly in the other decision, or that has more in depth information.

Introduction and Issues

The respondent appeals orders made after a lengthy family law trial relating to custody and access for the parties’ two children, spousal support, contempt and costs.  She also moves to introduce fresh evidence.

She’s been talking on punished for protecting for weeks in August and September about having irrefutable evidence that she did not coach her kids.  We’ll talk about that.  It comes up.

The parties’ divorce proceedings can be described as a devastating and destructive war which has unfortunately consumed the lives of them and their children and has caused the expenditure of tremendous and limited resources of the police, child welfare agencies and the courts.  In her comprehensive reasons for judgment, the judge laid the fault for this carnage squarely and unequivocally at the feet of the respondent.

The issues before this Court can be summarized as follows.  First, whether the judge erred in refusing to admit into evidence, under the principled exception to the hearsay rule, video-recorded statements of the children to police regarding alleged sexual abuse by the petitioner.  Second, the reasonableness of the judge’s custody order in favour of the petitioner based, in part, on her finding of parental alienation by the respondent.  Third, the calculation of the petitioner’s spousal support obligation based, in part, on the imputation of income to the respondent.  Fourth, the reasonableness of the judge’s findings of contempt against the respondent and the resulting penalty of the payment of costs of $5,000 to the petitioner and imprisonment for 45 days to be suspended for a period of three years from the pronouncement of the order provided that the respondent complies with the terms of that order and all other orders made in these proceedings.  Fifth, the appropriateness of the judge’s order of elevated costs of $95,000 against the respondent to be satisfied, in part, by offsetting a portion of the petitioner’s monthly spousal support obligation.

As I will explain, the panel dismissed the fresh evidence motion of the respondent at the appeal hearing.  For the reasons that follow, I would dismiss the appeal, save in respect of the timing of the setoff of costs against spousal support.

Background to the Parties’ Marriage and Divorce Proceedings

I’m not requoting everything from other decisions.  I will be direct quoting things that give the actual dates of information alluded to in the other decisions.  Or that give real details.

In February 2014 an interim order for shared custody of the children was made, as well as a prevention order as to contact between the parties.  Under the prevention order, neither party could follow the other “from place to place”. 

The reason I quoted this paragraph is the other decisions said the February court order gave reasonable time.  This states what the reasonable time is that got Sandy so angry.  Shared custody, meaning they each have half time.  This is when the first sets of allegations regarding the assault against Sandy where they both drove to the police station but didn’t go in, and the first sexual abuse allegation that Sandy coached M into saying came into play.  Sandy says that the abuse allegations weren’t properly investigated and that that’s why nothing was done.  Quite truthfully, you can see the months where they were extensively investigated.  May, 2014 M made the first allegation.  October, 2014 is the first indication that Ms. Sullivan was almost finished her investigation.  That’s a six month investigation.  What more could she want?

In November, after the report was released in October, 2014 M made another disclosure regarding the child porn allegation.

In February 2015, the petitioner was again arrested by police.  His residence and electronic devices were searched by police.  No evidence to substantiate the allegations of M and J was found; no charges were laid by police.  The investigating officer testified that there were “credibility issues” in the case that did not warrant the petitioner being charged.

She complains that the judge is not trained in determining abuse.  That’s why the judge relies on testimony from people that are.  Like police, child psychologists, child assessors, social workers etc.  The claim is dead in the water when the expert testimony is there.  People listed to her and her kids claims.  People investigated them.  And experts that interviewed the children found them to be presenting as children that were coached, not children that were sexually abused.   Experts that interviewed them is key, as we will get into the “fresh evidence” shortly.

During her testimony, Ms. Grusko (family conciliation assessor) advised the Court that M’s traumatic behaviour during the separation of her parents appeared to be more consistent with parental alienation than with sexual abuse.

 

The mother claims no experts that are experienced with determining sexual abuse and Domestic Violence interviewed the children.  Ms. Grusko has over 20 years experience.  To say she’s not experienced is the understatement of the century.

Over the period of December 14-16, 2015, a private investigator hired by the petitioner’s lawyer attended to the respondent’s residence to see whether she had vacated it as required by the court order.  The private investigator observed what she believed to be parents dropping off children for daycare purposes.  On the afternoon of December 16, 2015, the private investigator attended to the door of the residence to inquire whether daycare services were being provided under the pretext that she and her husband were looking for daycare.  She had a conversation with the respondent who advised that the service was $35 per day and that the business was called “Twelve Little Monkeys”.  The respondent took her through the residence and the private investigator observed that approximately a dozen children were being cared for.

This is why the unlicensed daycare was shut down.  Rules in Manitoba are that you can have an unlicensed daycare, but you can only have 4 children present at any time, including your own.  If you become licensed you can have 6.  She was playing with those children’s lives, along with continually showing her wanton disregard for any rules of any government around her.

During the course of the trial, child welfare officials discovered that, after the children were apprehended, the respondent somehow managed to smuggle two mobile phones into the foster home so M and J could secretly communicate with her.  When confronted about the clandestine communications, the respondent initially lied that it had been occurring.  She then changed course and alleged that M had told her the staff workers in the foster home had been drunk and fighting.  She advised that M will “freak out” when she learns her phone is gone.  She also said she would sue the child welfare official for looking at the phones.

This just shows you more how the minute she doesn’t get her way, she will lie about anyone or anything to try to persuade you.

Hearsay Issues

The Judge’s Decision

At trial, the respondent sought to admit the five video-recorded statements by the children to police (three by M – June August and November 2014; two by J – August and November 2014 regarding potential child sexual abuse by the petitioner before and after the parties’ separation.  Because the respondent was relying on the truth of the children’s statements to police to assist her position on custody, the hearsay evidence was presumptively inadmissible; she bore the onus to establish the “indicia of trustworthiness sufficient to displace the general exclusionary rule” (R v. Blackman, 2008 SCC 37 at para 38).  A voir dire was held to determine whether the requirements of the principled exception to the hearsay rule, necessity and reliability had been satisfied.

The respondent does take issue with the judge’s refusal to admit the video recorded statements into evidence for their truth because of her concerns as to threshold reliability.  The judge was not satisfied that there was a circumstantial guarantee of trustworthiness due to the circumstances in the case giving rise to the possibility of the children being coached or manipulated by the respondent into making the statements. 

Fresh Evidence Motion

The fresh evidence the respondent sought to admit on the appeal consisted of expert opinions from two clinical social workers on the issue of the reliability of the children’s video-recorded statements.  According to the affidavits of the clinical social workers, they

reviewed the children’s statements to police and are of the opinion that they were not “coached” by the respondent into making the allegations against the petitioner.

This is her big evidence.  I find several issues with this evidence.

  1. The people who interviewed the children already made the determination that the children presented as though they were coached.
  2. You know that Sandy paid for these affidavits that were given without one interview with the children. Amount she paid was likely about $5,000.00 apiece.  They aren’t cheap.  You can’t rely on a social worker’s evidence without meeting with the child.

 The respondent argued that the fresh evidence casts doubt on the judge’s ruling that the video-recorded statements did not meet the requirements of threshold reliability.  She also submits that the fresh evidence should be admitted because it is in the best interests of the children that any custodial determination take into consideration the real threat that she says exists to them from the petitioner.

 

At the hearing of the appeal, the motion was dismissed with reasons to follow.  These are those reasons.

Expert opinion evidence tendered simply to bolster the credibility of a witness does not meet the Mohan threshold admissibility requirements because conclusions about the credibility of a witness are for the trier of fact, not an expert.  There is nothing in the affidavits of the two social workers (who do not appear to have ever interviewed the children and based their opinions solely on watching the video recordings) that goes to human behaviour or psychological factors that would bear on the credibility of the children that is beyond the ordinary experience of a trier of fact.  In my view, the proposed expert opinion evidence of the two clinical social workers amounts to nothing more than “oath-helping”.  Given the inadmissibility of the proposed expert evidence, it would not be in the interests of justice to admit it on appeal.

Bingo.  Again the judges get it right.   She had a year and a half where she could have taken the kids to different counsellors or psychologists, but didn’t.

Before addressing the merits of the appeal on the judge’s hearsay ruling, it would be remiss of me not to comment on the unsatisfactory nature of the respondent’s materials on her fresh evidence motion.  While a generous and flexible view must be taken to the application of the due diligence criteria set out in Palmer in matters regarding children, that does not mean that a party can simply ignore putting forward at trial available evidence which he or she believes goes to what is in the best interests of a child.  In her supporting affidavit on a motion for fresh evidence, the respondent provided no explanation as to why the evidence of the two clinical social workers was not available at the trial when it easily could have been in the circumstances.  Absent a miscarriage of justice, which I have not been convinced occurred here, the principles of certainty and finality in litigation do not allow for a party to attempt to resurrect his or her case from an unfavourable ruling by proffering evidence that could have been readily available at trial through a motion for fresh evidence on an appeal.  Such a tactic is impermissible.

I think it’s interesting that when she reads these decisions she just gets angrier at the justice system.  I’d be embarrassed for myself and my behaviour.  But I’m not abusive to spite people.

Introduction

The potential untrustworthiness of hearsay evidence, because it cannot be tested by contemporaneous cross-examination witnessed by the trier of fact, is the principle justification for the hearsay rule.  At its core, the hearsay rule and a careful application of the exceptions to it promote actual truthfinding.

You can’t say my neighbour’s best friend told me that this person was at my house without having the neighbour’s best friend in court.  It’s smart actually.

 

The relationship between the hearsay rule and family law has been an uneasy one.  In Manitoba, this Court has allowed for the receipt of hearsay evidence in child protection hearings under The Child and Family Services Act even if the evidence does not meet the requirements of a categorical exemption or the principled exception to the hearsay rule; for a contrary approach in child protection proceedings.  Additionally, hearsay evidence that is attributed to an identified source and believed to be true by the deponent can be relied on for motions.

Believed to be true is the words I would underline here.  Sandy knows she’s lying just won’t admit it.

The hearsay issue in this case related to the determination of permanent custody and access of M and J under the Divorce Act in the face of serious allegations of child sexual abuse.  Unlike a child protection hearing which is a more informal and quasi-inquisitorial proceeding or an interim order of custody and access, a permanent determination of custody and access under the Divorce Act, in order to ensure procedural fairness, must be made based on the conventional adversarial process.

The parties and the judge proceeded on the basis that accurate fact-finding was necessary for a fair determination of the permanent custody and access regime that was in the best interests of the children.  They agreed that the admissibility of the serious allegations of child sexual abuse made by the children to the police against the petitioner could only be properly addressed by a strict application of the hearsay rule and the principled exception to it.  In my view this was the correct path to follow.

What is of overriding importance in such cases is that judges hearing a trial of custody and access fulfil their gatekeeper role and resist the temptation to take a shortcut and admit child sexual abuse hearsay for the purposes of its truth, without proper scrutiny of its admissibility under common-law rules, on the premise that it can be dealt with at a later date in proceedings.  Such an abdication of a trial judge’s gatekeeper role, in a determination of permanent custody and access is an error in principle. 

The next one may have more of my own opinions, but this decision pretty much speaks for itself.

Up next.  Standard of review.

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