The court said it wasn’t urgent. How a bitter custody battle ended with the death of a GTA kindergartener and her father
|Toronto Star 16 Feb 2020 at 10:45|
Twelve days before her four-year-old daughter and ex-husband were found dead at the base of a cliff, Jennifer Kagan asked a court to take urgent action.
“We have a father who appears to be escalating in his abusive behaviour towards his daughter,” her lawyer told Newmarket Judge George MacPherson on Jan. 28. Kagan’s ex-husband was “out of control,” the lawyer said, imploring MacPherson to suspend Robin Brown’s access to his daughter Keira, the kindergarten student at the centre of a bitter custody dispute.
It was urgent, lawyer Lawrence Liquornik argued, according to transcripts of the hearing, because Brown had coached Keira to falsely say she had been abused by Kagan’s husband. Kagan had no evidence Brown intended to harm the girl, but the matter was under investigation by Jewish Family and Child Services. The children’s aid society’s investigation may have found something troubling, and so the court should compel the agency to release its records and, in the meantime, suspend Brown’s access, Kagan’s lawyer said.
For years, Brown had been admonished by judges for his repeated lying. He forged evidence and attempted to defraud the court. He was bullying and aggressive to Kagan. All this detailed in official court records. Now, according to Kagan, he was manipulating their daughter. “This behaviour by Mr. Brown, viewed in the context of a continuum of his past behaviour, constitutes an alarming, threatening, escalation in his conduct,” Liquornik said.
MacPherson did not see it that way. “There are two sides to every story, and I have one side,” the judge said. “I have not heard the other side of the story yet, and so what makes more sense to me is to have the Society complete their investigation.” He scheduled another hearing for Feb. 20.
Brown’s and his daughter’s bodies were found at the base of a cliff in Rattlesnake Point Conservation Area in Milton late on Feb. 9. They had injuries police described as being consistent with a fall. Halton police are investigating the deaths and have said they are considering all possibilities.
Kagan, a palliative care doctor, and her husband, Philip Viater, a family law lawyer, believe Brown killed Keira and himself because he was about to lose custody or have it severely restricted. They believe the court should have seen it coming.
“If a lawyer and a doctor with unlimited resources could not save Keira, then absent some changes, the court cannot stop any psychopath who wants to harm his or her children,” Viater said, via text, on Friday morning.
The Star has been unable to speak to Brown’s family. Lights were on inside his Woodbridge home earlier this week and a vehicle was parked in the driveway, but there was no answer at the door. Next-door neighbours said they had almost no interaction with Brown or his partner.
Elliot Vine, a lawyer who previously represented Brown in the custody dispute, declined to comment.
Phone calls to the home owned by Brown’s father went unanswered. At the Burlington office of Brown’s engineering consultancy, Rubidium Environmental, a “temporarily closed” sign had been placed in the window.
Kagan and Brown had been fighting over their daughter for nearly her entire life. She was born on May 29, 2015, and by the following February, Kagan and Brown were separated. The court file of their unrelenting custody battle would eventually come to fill more than a dozen banker’s boxes.
In late 2017, an 11-day trial granted Kagan sole decision-making authority, but Brown was given substantial custody, including three out of every four weekends. The trial judge, Douglas Gray, found that Brown had a “distinct propensity for lying” and was bullying to Kagan and others, but he was “not convinced that these features should result in any reduction in the time Keira spends with her father.”
As part of that trial, a psychiatrist, Dr. Peter Sutton, was tasked with assessing both parents’ abilities to care for their daughter, who was only 18 months old at the time. Sutton found no issue with Brown’s parenting and in fact recommended he get more time with his daughter, including more overnight visits.
Although there was never any evidence or allegation that Brown might physically harm his daughter, Viater said judges failed to take seriously ample evidence of Brown’s deceitfulness and escalating erratic behaviour. Court records shows they verbally reprimanded and warned him, but rarely altered his access.
“Court systems do not anticipate this level of duplicity,” Judge Heather McGee told Brown, who mostly represented himself, after she discovered last summer that he had attempted to defraud the court by filing a motion that dramatically differed from one he had used to seek consent from Kagan’s lawyer.
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McGee barred Brown from filing similar motions without first getting permission from the court and ordered him to pay $2,825 in costs — but the transgression did not affect his custody.
Last August, for the first time since the proceedings began, Brown claimed he had Mi’kmaq ancestry, part of an effort to challenge Kagan’s decision to put Keira in a private Hebrew school. The judge, Robert Charney, dismissed the motion, saying whether or not Brown was Mi’kmaq, Kagan still had sole decision-making authority over the child’s education. But Charney was also skeptical: “Given the father’s unfortunate ‘propensity to lie’ and forge documents, the court should not simply accept this belated revelation at face value.”
Judges continued to sanction Brown and make significant costs judgments against him but, as MacPherson noted in the Jan. 28 hearing, “it does not seem to be any deterrent.”
Judge after judge criticized both parties for litigating every disagreement but, Viater said, they so often misunderstood the conflict and failed to recognize Brown as the antagonist. In spite of the numerous court sanctions against Brown throughout their years of proceedings, judges continued to treat Kagan as an equally responsible combatant, Viater said.
Records from the Jan. 28 hearing show MacPherson spent the majority of his time criticizing both parents for not getting along.
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“Both of you should say to yourselves, ‘What is the one thing that I can do to make life better for Keira?’ ” he says at one point. “And the answer is to stop fighting with the other parent.”
Viater said the lectures didn’t help. “Simply going to litigants and saying, ‘You guys all need to get along,’ isn’t helpful when one person is an actual good parent ... and the other person is really trying to get their claws into the other parents.”
In October, Brown’s access to his daughter was briefly curtailed when he did not return her to her mother when he was supposed to. He claimed Keira was sick, but a judge said his evidence was “weak” and a child psychologist filed an affidavit saying Brown had coached his daughter to lie about it. For one week, Brown was only allowed supervised access to his daughter, and a judge warned him to adhere to the custody schedule.
This was the only time in the nearly four-year separation that a judge limited Brown’s access, according to court records reviewed by the Star.
Viater and Kagan believe Keira’s death was preventable and they plan to do whatever they can to try to make sure something like it doesn’t happen again.
“My wife and I are fully committed to ensuring that this death is not in vain,” he said. “We intend to turn the system on its head.”