In August, Lawrence O’Neil, the Associate Chief Justice of the Family Court, awarded custody of a five-year-old boy to the child’s father, who has a history of domestic violence, even though the father had previously signed away his right to custody.
A troubled relationship
The names of the parents and child in this story are covered by a publication ban to protect the child. For simplicity’s sake, I’ll use pseudonyms and refer to the father as Jim, the mother as Maria, and the child as Mark.
Jim is the son of a man who was a prominent municipal and provincial politician in the 1970s and 1980s. Maria is of Mexican descent — it’s unclear from the court records if she herself immigrated from Mexico, but international travel would become an issue in the court proceedings.
In November 2012, Jim, then 29 years old, was in court on two domestic assault charges involving Maria.
During those proceedings, Jim agreed that before he and Maria were a couple, Jim had been charged with the domestic assault of a previous girlfriend. “I had a bit of a drinking issue back in the day,” Jim told the court. Choking back tears, he continued: “I don’t drink anymore. I don’t do drugs. I don’t smoke.”
On the charge that he assaulted the previous girlfriend, Jim had been given a conditional discharge — one of the conditions was that he attend counselling. “I went through to my proper time,” Jim explained, “but it costs a lot of money to get counselling.”
After Maria and Jim started a relationship, they moved into an apartment in the north end of Halifax. On November 12, 2011, however, Maria secured a peace bond against Jim. Details of the incident leading to the peace bond are not in the court record, and no charges were laid.
Referring to the November 12, 2011 incident a year later, the court transcript has this exchange:
Crown prosecutor Darrell Martin: Did you tell the prosecutor that you did not want to testify in court?
Maria: I don’t think I said that, no.
Martin: Okay, but you were satisfied to have this dealt with by way of a peace bond?
But Jim was then in court on two new charges of domestic assault, which occurred on October 20, 2012 and November 11, 2012.
There was a peace bond separating the couple, but under its terms Maria could give Jim permission to be present with her, and in September 2012 they moved back in together, to a south end Halifax residence. Martin described the October 20 assault:
[Maria] indicated that there was a verbal argument between she and [Jim]. She at that time was nine months pregnant. The argument continued into the living room, all the way over to a bedroom door. She alleges that [Jim] pushed her down onto the floor with a two-handed push.
Once she was on the floor, she stayed there. They continued to argue. She then got up and went to grab a bottle of juice from the fridge. While she was leaning over, she alleges that [Jim] punched her in the buttocks.
And [she] asked him to leave the area. He indicated no, he owns the place and pays all the bills and he feels that he should stay. She called the police, however when they showed up she wouldn’t report the incident to them. She indicated that she was scared. This is what she said on November 11, when the alleged second offence happened.
Martin went on to detail that second incident:
The child had been born by that time. She was in a verbal argument again with the accused over the heat being turned up too much. She reports that he was extremely mad, irate, because the heat was up too high and that he got out of control. She asked him to leave, however he refused and continued to argue with her.
He began yelling and screaming at her in front of their two-week-old baby. When he refused to leave, the victim had told him that she was going to call the police. She was then indicating that he was on the peace bond, and because — because she no longer wanted him there, she was going to call the police about that.
He then hearing this allegedly grabbed her with one of his hands near her right shoulder and collarbone area for a brief moment, causing some temporary pain. She received two small scratch marks of the area and police actually were called.
Maria then went to the police station, where she provided an audio and video statement about both incidents, and Jim was charged and jailed.
At the hearing a few days later, Martin, the crown prosecutor, told the court that he was opposed to releasing Jim from custody. But Jim’s lawyer, Brian Church, suggested that Jim be released to his father, who lived in the Hubbards area, on the condition that he stay away from Maria and continue at his job. With a two-week-old baby, Maria was in no position to go back to work, and she needed Jim’s financial support.
Justice John MacDougall was clearly ambivalent about the plan to release Jim, but consented to it. He went on to require that all communications between Jim and Maria go through either Jim’s father or the court:
The reason for that, I believe, … [is] [Jim] is not responsible enough to handle that on his own, for whatever deficiency there might be, and [Maria] does not appear to be responsible enough to know the trouble that she’s putting [Jim] in should he screw up yet again.
Continuing, the judge addressed Jim directly:
If you want to do something for your child, then start doing it now, and tears aren’t going to help it. If you’re embarrassing yourself by crying here today, think of what it’s going to be when you’re prohibited from seeing your child completely.
Subsequently, Jim pleaded guilty to a single assault charge, and was sentenced to two years probation and 30 hours of community service.
Another assault allegation
The court records reviewed by the Examiner don’t say how Jim and Maria’s relationship proceeded over the next year or so. But in his August decision, O’Neil recounted that on February 27, 2014, the Department of Community Services filed a protection order for the child, Mark.
“The trigger for the involvement of the child protection authorities in 2014 was the fact the parties’ child was left alone by her (sic) mother, when [Jim] was out of the Province,” wrote O’Neil. “The mother was threatening or planning to commit suicide when [Jim] left her because of conflict in the relationship.”
In his decision, O’Neil made no reference to Jim’s history of domestic violence, but he focused intensely on Maria’s mental state.
After Community Services became involved with the child, a court-ordered psychological assessment of Maria found that she had, according to O’Neill, a “history of serious mental health conditions” that were revealed in mental health assessments from 2004 and 2005.
But while Mark remained in interim care and custody of Community Services, both parents had access to the child.
A month later, Maria’s mother came from Mexico to care for the child. The child protection file has this notation dated April 2, 2014:
[Maria] is hoping for a family placement with her mother. [Jim] is also consenting and supports [Maria’s] plan. [Jim] has started his counselling. The Minister will work with [Jim] in setting up an access schedule.
The file continues on April 30, 2014:
The Minister is proposing, under a third-party supervision order, that the child be placed in the care of … the child’s grandmother (speaks very little English, [Maria] translated for the court…). The child will be transitioned back to the home, with the hopes that an Order will be granted before the protection date of May 26, 2014.
In the Order the Minister will be requesting that [Jim] will not be residing with the child and have not (sic) contact, unless supervised with the agency office.
Nowhere in the child protection file is Maria’s mental health considered, and the Department of Community Services does not appear to have had any reservations about Maria’s mental state, as a year later, on April 7, 2015, the child protection order for Mark was terminated and a new consent order was issued.
By that time, Jim and Maria were living together again. The new order gave “care and custody” of Mark to Maria and, wrote O’Neil, “was silent as to [Jim]’s role. The parties continued to cohabit and [Jim] was [also] a daily caregiver of the child…”
Jim agreed to and signed the consent order.
In retrospect, two points stand out in the consent order:
“3. [Maria] is hereby authorized by the Court to obtain or renew a passport for the child…, at any time, without the need for the consent of any other person.
4. [Maria] is hereby authorized by the Court to travel with [Mark], within or outside of Canada, at any time, without the need for the consent of any other person.”
Then, late in December 2015, Maria applied for an emergency protection order against Jim. In the application, Maria made the following allegations about an incident she said happened on December 28, 2015:
I was driving my car, but some things in my car, Respondent chased me with his car — asking me where I was going — Thought I was going with some one else — after that he texted me — on phone he was yelling calling me names = bitch = I did hang up on him, he followed me and stopped following me — its a girlfriend — alot of cars
On the section in the application about the history of domestic violence in their relationship, Maria wrote:
Respondent has hit me not allowed me to go out of apartment — not allowed me out of the bedroom 2 or three days before X mas — He gets angry — about a fist(?) (unreadable) — calling me names — bitch, cunt, trying to make me angry — quite sure seeing someone romantically — he has saying in the past he’s been guy to be kitled (sic) — he’s been charged before when [redacted] a new born — he assaulted me [unreadable], went to court and jail —
The allegations made in Maria’s application for a protection order were consistent with the details of Jim’s previous convictions on domestic assault charges, but O’Neil had a different read on it — he implied Maria was lying.
Previous to the application being filed, noted the judge, Jim and Maria had exchanged texts, “wherein he sought to make arrangements to see his child and she purported to be interested in cooperative (sic) in this regard. However she was not. In response to [Jim’s] efforts to locate his son [Maria] applied for and was granted an emergency protection order…”
Clearly, in reality, [Maria] was contemplating a way to exclude [Jim] from the child’s life and hers. By seeking an emergency protection order “EPO,” she accomplished this objective immediately. An “EPO” is an “ex-parte” order, i.e. one that can be sought and granted solely on the evidence and submission of one party to a Justice of the Peace and considered and granted in the absence of the other party.
That, of course, is the purpose of an emergency protection order — to provide immediate protection for someone who fears domestic assault. The law allows for the person named in the protection order to contest the order, giving that person the opportunity to appeal it to the court within 30 days. Jim made no such appeal.
Maria disappears with Mark
The child protection order for Mark that was issued on April 7, 2015 gave sole custody of the child to Maria, who had the right to travel with him anywhere in the world without the permission of any other person, including Jim. She appears to have taken that right, and left the Halifax area with Mark after she filed the protection order against Jim.
Jim has been hunting for Maria and Mark ever since.
While Jim didn’t contest Maria’s protection order against him, he did go to court to find Mark, and found a sympathetic judge in O’Neil.
Jim first appeared before O’Neil on April 19, 2016. “The matter was adjourned until June 2, 2016 to give the Court an opportunity to locate [Maria],” wrote O’Neil, referring to himself in the third person as “the Court.” He continued: “The Court described the situation as serious and undertook to maintain close management of the file.”
Over the summer of 2016, Jim appeared twice more before O’Neil and then before Justice Legere Sers, who was sitting in for O’Neil. Jim told both judges that he was trying to locate Maria. Referring to the case notes, O’Neil said that Sers told Jim he would have to serve Maria with notice of the hearing, and that “proof of service on [Maria] was necessary for the matter to proceed and to have the merits of [Jim’s] application considered.”
“Proof of service” is a court document that is signed by a process server. It certifies that someone has in fact been given legal written notice of a hearing or other court procedure that they are required to attend or are being given an opportunity to respond to.
Family court files are sealed, so the Examiner can’t determine with certainty that there is no proof of service of Maria, but none of the other court documents reviewed for this story make reference to such a document. In his decision, O’Neil makes no reference to a certified proof of service of Maria, and the judge implies that a non-certified verbal notification was enough for him to revoke Maria’s custody of the child. Moreover, an appeal of O’Neil’s decision notes that O’Neil wrongly concluded that Maria “was aware of any application to remove the child from her care and patently ignored it, failing to subject herself to the jurisdiction of the court.”
So far as can be determined, there is no solid evidence that Maria was even aware of the custody battle over her child.
The strange tale of witness protection
Jim told the judges that Halifax police and the RCMP had told him that Maria was in the Witness Protection Program.
Jim told O’Neil that in June a Halifax cop named Constable Mandru told Jim that Maria was in the Witness Protection Program but that Mandru would make sure she received a subpoena. Subsequently, Justice Sers, sitting in for O’Neil, told Jim that the case couldn’t proceed, so he should subpoena Mandru.
Mandru appeared before O’Neil on December 13, 2016. O’Neil describes that appearance as follows:
Constable Mandru testified and confirmed he believed the Respondent was aware of the proceeding and was served. He confirmed having discussed the proceeding with Constable Ian Nielsen, “the liaison Constable from the Halifax Regional Police with the Witness Protection Program.”
Constable Mandru confirmed his July 18, 2016 telephone call to [Jim] cautioning him about his efforts to locate the [Maria] and his child. He said he had done so at the request of Constable Nielsen. He confirmed he was told to reference the Witness Protection Act and the fact [Jim] might be charged if he persisted. He said he was told to communicate this by the Agency that had the Respondent in witness protection.
Constable Nielsen works in the regional office of the RCMP located in the Burnside Business Park, Dartmouth.
Constable Mandru explained that local police forces have liaison officers with the Witness Protection Program but in fact, the RCMP runs the entire program.
On February 21, 2017, a federal lawyer named Melissa Grant appeared before O’Neil on behalf of RCMP Constable Ian Nielsen. Grant told O’Neil that Maria was not under the protection of the Witness Protection Program.
At that hearing, Jim said that Nielsen got him in touch with Lieutenant Benoit Vigneault of the Sûreté du Québec, and that Vigneault had told him he would help get court documents to Maria.
Vigneault testified via video before O’Neil on April 11, 2017. Wrote O’Neil:
The overall impression the Court is left with after hearing Lieutenant Vigneault and his counsel is that as far as Lieutenant Vigneault knows, when assisting [Maria], his force was acting in good faith at the request of the Halifax Regional Police.
Frustratingly, O’Neil doesn’t give any more details of Vigneault’s testimony.
A source with knowledge of this case tells the Examiner that Jim and the police are possibly conflating the federal Witness Protection Program with a Quebec provincial program aimed at helping the victims of domestic abuse evade their abusers — that program, for example, provides a mail drop so abusers can’t find their victims’ addresses on court documents.
Regardless, in his ruling, O’Neil suggested that the RCMP, Halifax Regional Police, the Sûreté du Québec, and — “possibly” — Legal Aid had conspired to hide Mark from his father by falsely claiming that Maria was in the Witness Protection Program. In a subsection titled “Role of Police,” O’Neil wrote:
[Jim] is in the unenviable position of not being able to turn to the police for assistance in locating his child. Given the role of individual police officers and police departments or leadership at various levels of these police forces in assisting [Maria] to hide the subject child from her (sic) father, this is understandable. This Court shares some of [Jim’s] concern given the real possibility that errors were made by police forces in responding to the circumstances of this family. Asking these forces to participate in exposing their “errors” places them in a real or perceived conflict of interest which may affect their motivation to assist. To date, these forces have not voluntarily come forward to assist the Court.
So, either a mother with full legal custody of her son was simply fearful and attempted to hide from the man who had been convicted of assaulting her, or she engineered her disappearance with the help of three police agencies that concocted a false tale about the Witness Protection Program.
O’Neil discounted any suggestion that Jim’s history of domestic violence entered the equation:
I have considered the issue of domestic violence as provided by s.18(6)(j). These parents parented together for six months after the child protection authorities were involved. The trigger for the involvement of the child protection authorities being involved was the mother’s decision to leave the child alone.
In short, because Maria allowed her former partner back in the house despite his past convictions for assaulting her, those past convictions were irrelevant. And the subsequent accusations contained in the protection order were to be ignored because, implied O’Neil, Maria was lying. All that mattered is that in a moment of crisis in the relationship, Maria had left Mark alone.
O’Neil ordered the arrest of Maria. “Once located, the child shall be removed immediately from the care of the mother,” wrote O’Neil. “This direction reflects the court’s concern about the state of the mother’s mental health, a state that may be affected by the pending removal of her child from her care.”
After Mark is seized, O’Neil says he will oversee a transition plan to transfer him to Jim’s custody.
Jim goes public; Maria appeals
After O’Neil made his ruling, Jim went public with it. He created a Facebook page in September, posting screenshots of the decision and naming and posting photos of himself, Maria, and Mark in apparent violation of the publication ban on the case.
Jim has not responded to a friend request on Facebook, and the Examiner has no other way of contacting him.
An appeal of O’Neil’s ruling has been filed by Legal Aid lawyer Linda Tippett Leary with the Court of Appeal. Tippett Leary has not responded to a request for comment.
Judge has a history of controversy
A former Legal Aid worker, Lawrence O’Neil was the Progressive Conservative Member of Parliament representing Cape Breton Highlands – Canso from 1984 to 1988. He used that position to rail against women’s right to abortion. “In 1985,” reported the Canadian Press, “O’Neil moved to introduce a bill to amend the Criminal Code to require that every unborn child be represented by legal counsel at therapeutic abortion committees across the country.” In 1988, he told the House that “It appears that there is widespread acceptance of the notion that a mother should have the right to control her body. There is no such right.”
O’Neil was appointed to the bench by Stephen Harper in 2007.
The ruling in the recent child custody case was not the first time Justice O’Neil has taken extraordinary steps to protect the rights of a father. In August, a three-judge panel of the Court of Appeal strongly rebuked O’Neil for his “entirely hypothetical” concern for a biological father involved in an otherwise straightforward adoption case.
In that case, the adoption of a young child in the care of the Department of Community Services was delayed by months because O’Neill wondered if the father had been given proper notice, but the father didn’t have custody of the child, and the Court of Appeal ruled, he had no right to such notice in any event. Justice Cindy Bourgeois, who authored the decision, wrote that the delay was a “patent injustice” to the adoptive parents.