OTTAWA — Nova Scotia's highest court says a judge performed a "substantial wrong or miscarriage of justice" in stripping custody from a mother who fled an abusive partner, and that a warrant should have "never" been issued for her arrest.
The province's Court of Appeal released the blistering decision Tuesday outlining how several of Associate Chief Justice Lawrence O'Neil's conclusions in a custody case last year were based on "no evidence."
"I am at a complete loss to understand the judge's reasoning on this issue," Justice David Farrar said Tuesday of the Canada-wide arrest warrant. The identities of the mother, father, and five-year-old child are under a court-ordered publication ban.
Associate Chief Justice Lawrence O'Neil (bottom left) poses with colleagues in this Aug. 3, 2017 photo. (Nova Scotia Barristers' Society/Facebook)
O'Neil sided with the father, who applied for custody after his former partner left the province with their son. Three police agencies provided testimony that they believed violence was a factor in why the mother fled.
O'Neil brushed off the officers' evidence, and instead suggested that police were colluding with the mother to block the father's access to their son.
"The judge made a decision without hearing evidence from any party with respect to the best interests of the child," wrote Farrar about the original case in the Nova Scotia Supreme Court's family division.
The written ruling outlines the reasons behind an appeal court decision last month that restored sole custody of the boy to his mother, who has been living in Mexico as a dual citizen of Canada and that country.
The appeal court also quashed an arrest warrant that O'Neil had ordered in an attempt to bring the mother — who was in hiding as part of a secretive government initiative that helps victims escape extreme domestic violence — into his courtroom.
Earlier this year, HuffPost Canada published an investigation into the case, and how participating in the Confidential Service for Victims of Abuse program placed the mother in a terrible Catch-22.
'Erroneous view' of the relationship
It all began in 2015, after the mother left Halifax and moved to Quebec. Multiple agencies, including police, concluded the father's record of domestic violence supported her concerns for her own safety.
During custody proceedings, a lawyer for Quebec police told O'Neil about an email they had seen from the father which stated "he would find [the mother] whenever .... wherever she is and the child and that she couldn't escape."
O'Neil heard the case with no evidence the mother even knew court proceedings were underway. It's standard procedure in family law that all parties are informed of any court activity so a decision can be made in the child's best interest.
Farrar said because of the woman's absence in court, O'Neil had an "erroneous view" of the relationship between mother and father. Based on the fact the pair had co-parented for six months, O'Neil had ruled out domestic violence as a factor in the custody case.
"His failure to ensure that [the mother] was aware of the proceedings, making a decision without hearing evidence and changing the custody agreement, resulted in a substantial wrong or miscarriage of justice," wrote Farrar.
Look at what this woman had to go through to get to this. It's unacceptable.Rona Ambrose
Former interim Conservative Party leader Rona Ambrose, who has been a longtime advocate for survivors of domestic violence, previously criticized O'Neil's "shocking" ruling.
Judges are "not gods that are all seeing and all knowing and always get it right," she said in an interview Tuesday.
"Look at what this woman had to go through to get to this. It's unacceptable."
The sharp rebuke of O'Neil's judgment comes more than a year after the Court of Appeal condemned him for creating a "judge-made vortex of uncertainty and delay" in an unrelated adoption case.
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Despite having two of his rulings overturned in 15 months, O'Neil is unlikely to face any punishment.
Jennifer Stairs, spokeswoman for the Nova Scotia Judiciary, told HuffPost that the Court of Appeal exists because sometimes judges can get it wrong, and if that happens, judicial independence protects then from punitive measures.
"Judges need to be able to make decisions free of any outside pressures or influences," she said. "That ensures every matter that comes before the courts is judged fairly and impartially."
Ambrose said this case underscores why sensitivity training is necessary for judges, and how O'Neil could have benefited from additional education.
"He had no awareness of the context of domestic violence and the issues surrounding it. And guess what — training would have made a big difference," she said.
Before Ambrose left federal politics, she tabled a private member's bill proposing that all lawyers appointed to the federal bench must complete mandatory sexual assault training. The bill is currently being reviewed in the Senate.