Determining the fact if there was physical abuse in the family or not is the corner stone of the entire case. Every word in Justice Mulligan’s decision must be flipped to the opposite if there were no physical abuse.
If there was abuse then Nikityuks’ and Skybin’s story is true, i.e. they were concerned about their safety and left to social housing to avoid confrontation.
If there were no abuse then Danilovs’ story is true, i.e. Nikityuks just wanted to live separately by all means and imitated family abuse to avoid 4 year waiting list for social housing. They probably even thought that they were doing a good thing and the family would thank them later.
Let’s look:
[170] I am satisfied that the Nikityuks were financially abused from the time they arrived in Canada. They wanted to live separately. That was the plan in the inducement e-mail. Social housing was not their first choice, but it seemed to them that it became their only choice. The Danilovs discouraged any talk of social housing and for good reason. They knew that if the Nikityuks moved to social housing, it would constitute a breach of their Sponsorship Agreement with the Government of Canada. The continual discussion about moving out and social housing became an irritant and led to emotional arguments. I am satisfied that there was a physical altercation as well, some pushing by Svetlana of her mother. But even if I am wrong on that finding, it is clear that financial abuse and emotional abuse had already occurred.
Basically, after 5 weeks of Trial Justice Mulligan could not find any evidence of alleged physical abuse despite of all effort made by YMCA, Graham Partners and Community Legal Clinic. Common sense says that if you cannot find evidence of something, that something simply is a lie.
But Ontario Supreme Court Justice Mulligan is “satisfied with his findings even if he is wrong“! How about that? This simply means that he made up his mind already before the Trial and despite of all evidence decided to send his “message” by all means.
There was no “pushing” mentioned in any evidence, neither in oral nor in written. Quite the opposite, the evidence was ”grabbing” which allegedly caused bruises “looking like fingerprints”, “5 centimeters diameter”, not “some pushing”. Bornmann even organized an idiotic “demonstration” where poor Alla, chocking on laugh, tried to improvise how she was “grabbed” and “shaken”, not very convincing but very funny.
Yana’s letter “To whom it may concern”, widely circulated (attached to Anastasia’s affidavit):
Alla showed me her arms, and there were bruises on both arms. On the weekend their daughter came for a visit from Toronto, and they showed her the bruises, too.
Well, the daughter’s affidavit is right here, and guess what? All this bullshit about bruises is just a lie! By the way, the above mentioned “weekend” was August 20, 2011, Yana’s birthday party, when Nikityuks visited her, made an expensive gift, and nobody saw any bruises on Alla who was wearing short sleeves.
August 20, 2011 – Yana Skybin’s birthday party – Alla (on the right) wearing short sleeves. No one sees any bruises.
Transcript of oral examination of Skybin:
Q626: Minor bruises?
A: There were multiple bruises on both arms.
Q627-629: How bad they were, they were just very minor bruises, slightly visible?
A: I wouldn’t call them minor. They were visible. She was wearing a shirt and they were under the sleeves. They were obvious and visible.
Q630: How did they look like?
A: A few bruises in may be 5 centimeters range on both arms, they were grey, yellow, green color
Q631-634: There were multiple bruises, 5 centimeters apart?
A: 5 centimeters in size. They were visible like if you would not mistaken them for anything else.
Q635: Mistaken them from what?
A: From an occasional bruise a person can get
Skybin’s testimony at Trial:
Q. And so let me stop you there. Are you absolutely certain that Mrs. Nikityuk showed you bruises?
A. Yes, she showed them to me. I saw them with my own eyes.
Q. And where were the bruises?
A. They were on her upper shoulders, both – like – okay, shoulders. I don’t know how to say that. Arm…
Q. Well, maybe if you could…
A. …upper arm.
Q. …direct His Honour to where….
A. Yeah, like they were upper arms, like here. And they were multiple, like from fingerprints. Like fingerprints.
Q. So, above the tricep?
A. Yeah, but – like yeah. So the arms.
Q. On both arms?
A. Both arms, yeah.
Q. And…
A. And multiple.
Q. …so you said multiple. Can you describe the bruises as best as you can?
A. Like finger – from fingerprints. From….
Q. And just another question about the bruises. You said there were multiple bruises. What did they look like to you?
A. Like fingerprints.
So, to sum up, bruises looking like “fingerprints”, 5 centimeters diameter, all kinds of colors, nobody can mistake from an occasional bruise a person can get, but nobody actually can see when Alla wears no sleeves. Not very convincing, right? So Mr. Mae needs some damage control and look what he came up with:
Cross-exam of Svetlana by Mae on Trial – Volume 3:
Q. So my last question to you, would it be a surprise to you that when Ms. Malisheva comes to this court to give evidence, she’s going to say that she went out with your mother in August 2011 and she saw the bruises on your mother’s shoulders. Would it be a surprise to you?
A. I don’t know what – how to answer the question because I don’t know. You do whatever you want to do.
Q. Well, I’m telling you that is the evidence we’re going to hear. She saw the bruises on your mother and your mother told her exactly how the bruises happened. They were caused by you and she saw exactly the same things that Yana Skybin saw on August 23, 2011 but on different day.
This obviously was a very important testimony for Mae. With proven that Yana could not see any bruises in August 2011 because there were no bruises, Mae and his buddy Bornmann delay the Trial till autumn by all means and during that 5 months gap “prepare” his new “witness” Malisheva. As a matter of fact, Mae delegated this duty to Russian-speaking Yana who basically wrote the entire script for Malisheva’s testimony, but Malisheva is not a very good actor, cannot memorize the entire script and happily screwed up. Perjury is difficult. Conspiracy to commit perjury is a felony offense, but Justice Mulligan doesn’t care about perjury at all:
Malysheva ’s testimony about “attack” which allegedly took place in August 2011:
Q Did you spend time together with them (Nikityuks) in the summer of 2011?
A Yes.
Q. During this time, were you ever told about any issues they were having?
A. No.
Q. Did you spend any time with Alla during that summer, the two of you?
A. We spent time all together: Alla, myself, Valentin, my husband, and my children.
Q. During that time in that summer 2011.
A In August, we were at the park, and Alla shared with me a problem – a family problem. Yes, we were at the park. We’re enjoying our time, and Alla complained to me that she had serious problems with her daughter in the family.
Q. What kind of problems?
A. Well first of all, she showed me bruises on her arms, and told me that her daughter attacked her at home.
Q. What did those bruises look like?
A. They looked like fingerprints.
There you go. “Fingerprints” again. Sound familiar, right? Did Skybin ever see how fingerprints look? How bruises can look like “fingerprints”? Especially 5 centimeters in diameter. How “some pushing by Svetlana of her mother” can cause bruises looking like “fingerprints” of “5 centimeters diameter”?
Malysheva Cross-ex:
Q. You spoke about Alla telling you in August of 2011, that her daughter, Svetlana, had attacked her?
A. I did not say 2011.
Q. Okay, so when did you have this conversation with Alla?
A. I met with them in October 2011. It couldn’t have been August at any rate.
Oops!
Q. Thank you. So, maybe I misunderstood. Could you tell us when Alla told you about her daughter attacking her?
A. In August. It must have been 2012, since I met them in 2011. Don’t confuse me.
Q. Okay. I’m not trying to confuse you. Do you recall where this conversation took place?
A. Of course, in a park. Killbear Park.
Q. And you had gone to Killbear Park with the Nikityuks?
A. Yes.
Q. So, I’d like to now have the witness look at the first volume of the white binder, Tab 89. And I will give you the page number, just a moment.
Q. Do you recognize these photographs?
A. Yes, of course.
Q. And is this the trip to Killbear Park you took with Nikityuks?
A. Yes
Q. Yes, and would you agree that that was on October 2nd, 2011?
A. Was – well, that’s wonderful that there is a date here. Again, it has been five years. I’m sorry, forgive me, I can’t give you exact dates. I can remember the events that took place, not the dates. I’m sorry.
Q. And so, is this the park visit that Alla showed you the bruises?
A. Yes.
Q. And this is also when Alla told you about the attack, that Svetlana had attacked her?
A. The same day, not at the same time when the pictures were taken, because everybody’s very happy in the pictures. We were there for sufficiently long time.
After that Killbear trip Nikityuks came home and Valentin said that their “friends” to whom he told that they sold property in Russia and sent all monies to Svetlana as a gift, asked him if he is a fool.
Another alleged episode of physical abuse was Pavel throwing plates at the wall. Even assuming that it happened, but there is no any proof that it did, not clear how it is physical abuse but not just damage to the wall.
There are some pictures provided by Valentin to “prove” that damage. But they:
- Were not listed in the Affidavit of Documents before the oral discovery, and that Affidavit specifically states that there are no more documents in Nikityuks’ possession relevant to the case, i.e. at the moment of swearing the Affidavit they did not have those wall pictures. And even despite Valentin is apparently doesn’t have a problem to lie in affidavits, it’s very difficult to come up with a motive why would he lie in this case that he doesn’t have any more documents related to the case. This is a unique situation when he actually swear the truth: as of April 13, 2013 he doesn’t have any more pictures or other documents relevant for the case:
Affidavit of Documents of Nikityuks before Oral Discovery - Were produced by Nikityuks after oral discovery by plaintiffs’ demand because they were stupidly mentioned by Valentin during examination.
- Do not prove anything: those are the pictures of some wall with some minor scratches which could be taken anywhere and at any time, but definitely not in plaintiffs’ house were the incident allegedly happened, because Nikityuks did not have access to the house since October 2011, and Discovery, when the pictures were produced 1st time, was in 2014, i.e. at that time they yet did not exist. Even the color of the wall is totally different, so those pictures of damaged wall are just fake.
Even Justice Mulligan who trusts Nikityuks and doesn’t trust Danilovs because they trade stocks, doesn’t say a word in his “decision” about that plates. But come on Your Honor, you cannot ignore the fact that Valentin Nikityuk perjured himself by bringing up this ridiculous “story”. And what does it say about Valentin’s credibility?
All the effort YMCA lawyers allocated on delaying the Trial into the 2nd session, finding more “witnesses” of alleged bruises during the 5 months break and preparing those “witnesses” proves the importance of the issue.
The fact that despite of that effort YMCA failed to prove that bruises ever existed, had to be properly assessed by Justice Mulligan and to dramatically affect his decision. The fact that it did not means again that he either forgot about all spring testimonies and evidences after 5 months gap, or was biased against Danilovs.