Court document details custody battle for sisters in double homicide

The father of two girls found dead in an Oak Bay apartment this week once threatened to "blow up the house" during an argument with their mother and displayed several examples of poor judgment in parenting, a B.C. judge wrote earlier this year.

Custody of Aubrey Berry, 4, and Chloe Berry, 6, was the central issue when Andrew Berry and Sarah Cotton spent five days at a trial in B.C. Supreme Court in November 2016, according to a court document posted online.

This spring,  B.C. Supreme Court Justice Victoria Gray outlined a shared parenting schedule despite her concerns about Andrew Berry's past behaviour. Those concerns included a previous restraining order and two investigations by the Ministry of Children and Family Development (MCFD).

Berry, the judge wrote, "has displayed poor judgment in dealing with the children. That has included saying negative things to the girls about the mother, [inappropriate] touching which led to the MCFD investigation, and his present arrangement of sometimes sleeping together with one or the other of the girls."

Police found the bodies of the girls on Christmas Day in a ground-floor apartment in Oak Bay, a municipality within the Greater Victoria Regional District, and the RCMP is investigating the deaths as a double homicide. Friends of the family have said the girls were with their father at the time.

No charges have been laid. The only suspect is an injured man who was found in the apartment and is now in hospital. Police have not specified the identity of the man.

'A loving father'

In her detailed May 31 judgment, Gray granted Berry the right to have the girls for 24 hours beginning at noon on Christmas Eve in 2017.

The judge wrote that Berry is "a loving father who has much to offer his daughters," and said it was in their best interests to spend significant time with him.

"This is not a case where family violence is a significant factor for determining parenting arrangements," Gray wrote.

But the judge also laid out a period of Berry's aggressive behaviour, which she described as "transient and relatively minor." It began in 2013, in the months before the common-law couple broke up after nearly four years together.

Cotton testified that Berry starting calling her "foul names" and criticizing her in front of the kids after her father died in March 2013. She said that when he became angry with her, he would drive erratically and speed, even when the girls were in the car.

Berry's version of these events is not included in the judgment.

Restraining order and peace bond

But the judge said she accepted Cotton's uncontradicted testimony that Berry "said that he would 'blow up the house' if he did not get a breakdown of what happened" with the family's universal child-care benefit in September 2013, "and that he looked angry and crazed."

On the last day Berry and Cotton lived together, he was arrested after she called police to report that he had pinned her to the bed at 3 a.m., according to the judgment.

Cotton immediately obtained a restraining order that kept Berry from contacting her or the children. It lasted from Sept. 13, 2013, to mid-November the same year, when he entered into a peace bond, which was eventually amended to allow Berry some parenting time.

Since then, MCFD officials have conducted two investigations into Berry's parenting, according to the judgment. One involved a soft spot Cotton discovered on Aubrey's head; the other involved allegations that Berry had inappropriately touched her genitals.

In both cases, Berry's visits with the children were supervised for a week or two during the investigation. After the alleged inappropriate touching incident, ministry officials recommended that he take some parenting courses.

Did child protection services fail?

Meanwhile on Thursday, British Columbia's independent advocate for children and youth said his office is gathering information for a possible review of whether child-protection services failed the girls.

Bernard Richard, the Representative for Children and Youth said his office must wait at least a year, or until all coroner and police investigations are complete before launching its own review.

• 2 small children found dead on Christmas in Oak Bay homicide

"Obviously this is a case of concern," Richard said, because the records show the Ministry of Children and Families was involved with the family in the past.

"It immediately warrants bringing it to our screening process and eventually a review, if there's a finding that services or the lack of services may have played a role in the deaths," he said.

Judge expressed optimism

The court document also shows that at one point in 2015, Berry refused to return the girls to their mother until she agreed that both girls be allowed to stay overnight with him.

In the end, the agreement laid out by the judge gave Cotton substantially more time with the children, but allowed Berry about three-quarters of weekend days with them and split the holidays equally.

• Homicide victims were 'amazing, fun girls,' family friend says

"It can be hoped that, in time, the father can act in the best interests of the children by showing the maturity to honour court orders and his agreements, and by ensuring the children are not exposed to his disputes with the mother," Gray wrote.

Court files indicate that Cotton and Berry were still involved in family law proceedings as recently as Nov. 23.

Relative blames courts

Meanwhile, a relative of the girls says the court system let them down by granting their father extensive, unsupervised access to the children.

"That man should never have been left alone with those children. Never," Frank Cotton, a great-uncle of Chloe and Aubrey, said. "My niece worried every time they left."

"Somebody should have been there and the judge herself should have known," He said. "Why can't they see it? The proof was there."