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Father ‘going downhill’ in months before daughters’ deaths, lawyer says

A court judgment and news reports suggest Andrew Berry was going downhill in the months before the deaths of his two young daughters on Christmas Day, says Victoria family lawyer Trudi Brown.
Bouquets of flowers have been left on the front lawn of Oak Bay's Haro Apartments on Beach Drive, where the girls bodies' were found. Dec. 27, 2017

A court judgment and news reports suggest Andrew Berry was going downhill in the months before the deaths of his two young daughters on Christmas Day, says Victoria family lawyer Trudi Brown.

The bodies of Chloe, 6, and Aubrey, 4, were found by Oak Bay police in Berry’s Beach Drive apartment about 5 p.m. on Dec. 25. Berry, 43, was taken to hospital with self-inflicted wounds.

There has been no update on his condition.

Police are treating the deaths as homicide. No charges have been laid.

Brown has not acted for either Berry or Sarah Cotton, the mother of the two girls. But her 45 years of experience as a lawyer and as the leader and mentor of the family law bar in B.C. gives her insight into family law proceedings.

After reading the judgment of the five-day family trial, which took place in November 2016, Brown said the case started exactly as cases should.

“It started off with mediation. Both parties had divorce coaches. There’s a mention of custody specialists. They made agreements about parenting in 2013 and 2014. So they were doing everything right,” Brown said.

“Then, clearly, Dad started representing himself. You get the sense from reading the judgment, he stopped communicating with the mother at all. She would ask him things and he wouldn’t respond. I read that, in hindsight, as a man who’s going downhill.”

Things appeared to spiral even more in the summer of 2017, when Berry left his job with B.C. Ferries. Brown Bros. applied to the court to evict him from his apartment over unpaid rent. Then, according to neighbours, B.C. Hydro cut off his power off a week before Christmas.

“Those are warning signs,” Brown said.

One of Berry’s neighbours told the Times Colonist that a complaint had been made to the Ministry of Children and Family Development when the power was cut off. It’s not known whether the complaint was received or investigated.

“I would have thought that might have twigged them to something,” Brown said.

According to the judgment, which was published on May 31, the ministry conducted investigations into Berry’s parenting in 2015 and 2016.

In 2015, the ministry opened an investigation after comments by Aubrey raised concerns that the father might have touched her inappropriately.

The investigation concluded that Berry had acted inappropriately while drying Aubrey after a bath, but not with criminal intent. His visits with the girls were supervised for one or two weeks.

In January 2016, another ministry investigation was opened when the mother discovered a soft spot on Aubrey’s head. After that, Berry’s visits were supervised for less than a week.

The ministry is doing a preliminary review of the case. The provincial director of child welfare has 30 days from the date of the children’s deaths to determine whether a more in-depth review is warranted.

The director must consider the need for public accountability where details of an incident have been widely reported and a review might clarify the ministry’s involvement. A review can take three to eight months.

Brown said that in her reading of the judgment, there is no evidence of high conflict in the discussions over custody.

“There was discussion about how much time he should have and who should get the decision-making power, but it’s not the high-conflict cases I see where people are in courts every few months arguing about something,” she said.

It’s not known why Berry represented himself in the court proceedings, Brown said. During the family trial, he was working at B.C. Ferries and making a good wage.

He might not have had money for a lawyer, or did not like the advice of a lawyer, she said.

“Legal aid is virtually non-existent if you have an asset or a job,” said Brown, who regularly sees unrepresented people in family court.

Victoria lawyer Michael Mulligan also expressed concern about Berry representing himself during the family trial.

Mulligan represented Berry in a criminal trial in November 2013 after he was charged with causing Cotton to fear he would injure her. Berry was placed on a 12-month peace bond with conditions not to have any communication with Cotton unless complying with a family court order.

“A man who has difficulty paying his B.C. Hydro bill is in Supreme Court dealing personally with a family law matter involving huge amounts of arrears.

“You can imagine how that might not be ideal,” Mulligan said.

Until 2002, legal aid would have been available for family law cases like that, he said.

“If we are looking to do something as a community to avoid tragedies like this, one of the things we can do is try to ensure that people who are unable to afford counsel have lawyers,” Mulligan said.

“If you don’t have counsel, there’s nobody advocating for you and you don’t have a legal recourse for things in a meaningful way.

“There’s no buffer between the parties.”

More often than not, it’s women who have no representation, Mulligan said.

“It’s a recipe for bad things if you have people feeling powerless and unrepresented in the court process.”

Brown was the family lawyer acting for Dan Cunningham when his former wife, Kaela Mehl, killed their 18-month-old daughter, Charlotte, by feeding her a fatal overdose of sleeping pills, then smothering her. Mehl was convicted of first-degree murder in October and sentenced to life in prison with no possibility of parole for 25 years.

“We have no way of knowing in our world today when people get isolated and don’t have support, what’s going to happen and what’s going to trigger people,” Brown said.