Court File and Parties

Court File No.: Sault Ste. Marie 130/08 Date: 2013-03-01 Ontario Court of Justice

Between: Herman Joseph Guillory Applicant

— And —

Jennifer Turbin Respondent

Before: Justice Nathalie Gregson

Heard on: January 10, 16 & 25, 2012 and January 8, 2013

Reasons for Judgment released on: March 1, 2013

Counsel:

• Murdoch Carter, for the applicant
• Eric McCooeye, for the respondent

GREGSON J.:

Introduction

[1] The applicant father Herman Joseph Guillory commenced a court application on May 21, 2008 against the respondent mother Jennifer Turbin seeking joint custody of their child, namely, Dante Guillory born November 5, 2005.

[2] The mother filed an Answer disputing the father's claim and made her own court claim seeking sole custody, child support and a restraining order against the father.

[3] A temporary order was made by Justice Kukurin on January 6, 2009 on consent of the parties which amended the father's court application to include a claim in the alternative for paternal access. The mother's claim for a restraining order was also withdrawn.

[4] At the commencement of trial, the father was seeking unsupervised access to Dante on alternate weekends from Friday after school to Sunday at 6:00 p.m. and an equal sharing of the holidays such as Christmas, March Break and summer vacation as well as access time during Father's Day, Dante's birthday and for special events with appropriate notification to the mother. The father also seeks to attend all school functions and extra-curricular activities.

[5] The mother was opposed to the father's claim for unrestricted access and was seeking that he be limited to daytime supervised access.

Father's Evidence

[6] According to the father's affidavit sworn December 20, 2011, he and the mother began living together in April 2007. They terminated their relationship a year later in April 2008. Since then, the father felt the mother had continually restricted and denied him access to their son Dante. During his evidence in cross-examination, the father clarified that he and the mother in fact began their relationship in 2002, however, they had lived in separate residences until they moved in together in April 2007.

[7] The father did admit during cross-examination that the Children's Aid Society became involved with him and the mother once Dante was born. They remained involved for about one year. The Society had requested that he be supervised at all times with Dante for at least the first year of their son's life. Accordingly, the maternal grandmother agreed to help out and care for Dante when the mother worked. The father explained that when he was in high school he had been in a relationship with a partner who had a child. Apparently, a Children's Aid Society investigation ensued due to the child having an injury to their ear which the father claimed occurred while the child was at the sitter's. He only learned after Dante's birth that his name had been placed on the Child Abuse Register as a result of the injury to his prior partner's child. The father testified he saw Dante every day for Dante's first year of life but he was always supervised by the mother or the maternal grandmother.

[8] The father stated that while he and the mother were in a relationship, he was fully involved in the care of their son. He felt he had always been appropriate in his caregiving and had a positive bond with Dante.

[9] The father indicated that his separation from the mother occurred in April 2008 and claimed it was the result of the mother seeing another man. Accordingly, the father moved back in with his mother. The mother then stated to him that he could have daytime access to Dante but any overnight access was not allowed. He was then advised by the mother that any overnight visitation needed to be supervised. He was later told by the mother that any access to Dante had to be fully supervised and the mother in fact sought to terminate his access.

[10] The father claimed that he would text the mother to ask for visits and she would tell him that he was harassing her. Most of the time, the mother would not answer her calls nor were calls returned. The father felt the mother had put up constant roadblocks since their separation to frustrate his access to Dante.

[11] As a result, the father commenced his court application in May 2008. However, during cross-examination, the father admitted going out west for one month after the parties' separation.

[12] On April 20, 2009, on consent of the parties, Justice Kukurin made a temporary order which provided the mother with custody of Dante subject to the father having access every second Sunday from noon to 3 p.m. with access exchanges to occur at the paternal grandmother's residence or as otherwise agreed upon. The father was also provided with reasonable telephone access between the hours of 9 a.m. and 8 p.m.

[13] Lastly, the father was ordered to pay child support in the amount of $47.00 per month based on a gross annual income of $11,000.00.

[14] On June 17, 2009, Justice Kukurin made a further temporary order which amended some of the father's prior access provisions to permit him to have access to Dante each Sunday from 10 a.m. to 5 p.m. and each Wednesday from 3 p.m. to 7 p.m. subject to having all access be exercised at the home of the paternal grandmother. The father was also permitted to continue to have reasonable telephone access to Dante at reasonable times for reasonable duration.

[15] On December 7, 2009, Justice Kukurin granted a temporary order on consent of the parties which again amended some of the father's access provisions. The father was now permitted to have access each Sunday from 10 a.m. to 7 p.m. with exchanges of access taking place at the paternal grandmother's residence.

[16] Pursuant to the father's affidavit sworn December 20, 2011, he felt that access had been progressing well, and he and the mother were able to discuss Dante's needs amicably until February 8, 2010. On this date, he was injured in a house fire as a pot of grease fell on him and he was badly burned. He was hospitalized for one to two months and required a significant amount of time to heal. The father believed the mother began to restrict and deny access again contrary to the temporary order. The father acknowledged that the injuries he suffered did limit his ability to care for Dante for a period of time but felt the mother used this fact to suggest Dante would be in danger with him because of his alleged carelessness or negligence concerning the fire. The father stated the fire was an accident and not as a result of negligence.

[17] On May 6, 2010, on consent of the parties, Justice Kukurin granted a final order providing the mother with sole custody of Dante and the issue of child support was also finalized.

[18] On a temporary basis, the father's access provisions were amended to permit the father to have access on alternate weekends from Saturday at 1 p.m. to Sunday at 1 p.m. with the exception that access from Saturday at 8 to Sunday at 8 p.m. take place at the paternal grandmother's residence. Dante was permitted to call his mother on one occasion during the father's visit.

[19] According to the father's affidavit sworn December 11, 2011, access had been going well under the temporary order dated May 6, 2010, and as of August 2010, he assumed a settlement would be reached regarding his access.

[20] However, in August 2010, the mother made allegations claiming that he had sexually abused Dante and she began to withhold access. These disclosures according to the father took place only about two weeks after he and Ms. Webb-Guillory had been married on July 31, 2010.

[21] The police and Children's Aid Society investigated these allegations. No charges were ever laid and Children's Aid Society closed their file as they had no concerns.

[22] The father adamantly denied ever abusing any child including Dante. The father claimed he would never do anything to hurt Dante either physically or emotionally.

[23] The father stated the police and the Children's Aid Society interviewed his wife and his three step-children all of whom stated that no abuse ever occurred. The father believed he had a very good relationship with his step-children and had always tried to be a positive father figure in their lives which was confirmed during their interviews.

[24] The Children's Aid Society was aware that he continued to reside with his three step-children and after their investigation into the sexual abuse allegations, he was allowed to continue to reside with his family. He was not required to be supervised with his step-children so he sees no reason why he would require supervision during his access to Dante.

[25] In fact, during the investigations, both he and his wife Ms. Webb-Guillory fully cooperated with the police and the Children's Aid Society and answered all of their questions.

[26] According to a letter dated October 27, 2010 by Carrie Watson, child protection worker with the Intake Department of the Children's Aid Society of Algoma, the Society received a referral on August 23, 2010 which suggested that the children in his care may be unsafe due to an allegation of sexual harm being made against the father wherein he had touched his son Dante on "his bum and genitals". As a result of that information an investigation was initiated. Ms. Watson attended at the father's home that same date at 8 p.m. and asked that he and his wife Ms. Webb-Guillory attend at the Society office with their four children for the purpose of interviewing the children. Both the father and Ms. Webb-Guillory agreed and attended at the office and allowed Ms. Watson and the City police to interview the three oldest children, Cody, Kaden and Hope on an individual basis.

[27] As a result of the interviews with the children, the Society could not verify any protection concerns and the children were returned home with the father and Ms. Webb-Guillory.

[28] On September 8, 2010, the Society received further disclosure from Dante that his father had sexually assaulted him. The allegation made at that time was that the father had "sucked on his son's peep and had touched his bum with tools". As a result of that interview, Ms. Watson interviewed Cody and Kaden Webb at their school. They did not disclose any evidence of harm however, Ms. Watson asked the father to be supervised around the children and not be left in a caregiving role.

[29] The father participated in a police interview on September 14, 2010 and denied the allegations against him. On September 24, 2010, Ms. Watson advised the father he no longer needed to be supervised in his home. She further noted her that the results of their investigation remained inconclusive, the allegations made were very concerning; however, the Society was not in a position to bring forth a protection application to ensure he was supervised around the children in his home.

[30] On February 10, 2011, I granted a temporary order which provided the father access to Dante on Sunday February 20, 2011 from 10 a.m. to 2 p.m. with the exchange taking place at the Supervised Access Centre. Thereafter, as of Sunday February 27, 2011, access was to be from 10 a.m. with the exchange being at the Supervised Access Centre until 5 p.m. when the mother was to pick up Dante from the paternal grandmother's residence. All access had to be supervised at all times by the paternal grandmother.

[31] On March 2, 2011, I granted a temporary order permitting the father to have access to Dante each Sunday to be supervised by Algoma Family Services as arranged with them.

[32] On April 18, 2011, I granted a temporary order on consent of the parties which provided the father with access to Dante each Sunday from 10:15 a.m. to 4:45 p.m. to be supervised at all times by the paternal grandmother. Exchanges of access were to take place at the Supervised Access Centre at Algoma Family Services.

[33] According to the father's affidavit sworn December 11, 2011, despite access provisions being reinstated and ordered by this court, the mother continued to deny him access and has cancelled most of his scheduled access visits for various reasons such as claiming Dante was sick or that he was busy with hockey since February 10, 2011.

[34] When the father learned Dante was busy with hockey on Sundays he asked the mother to change his supervised access visits to Saturdays but she refused, stating the court order stated Sundays. As the trial was fast approaching in this matter, the father felt a motion to change the access was pointless.

[35] According to the father's testimony, he married Beverly Webb-Guillory on July 31, 2010. They have one child together, namely, Cymbelina May Webb-Guillory, born December 28, 2009.

[36] Ms. Webb also has three children from prior relationships, namely Cody, Kaden and Hope, all of whom reside with the father and Ms. Webb-Guillory. Ms. Webb-Guillory does not have a criminal record. The family reside in a three bedroom home and have been residing in the same home for one and one-half years.

[37] During cross-examination, the father did admit to separating from Ms. Webb-Guillory for one week to resolve some marital issues as they did not want to argue in front of the children. The father also stated there was a second short separation when he stayed with his mother and uncle. As a result of their marital issues, he and Ms. Webb were attending marriage counselling to learn better communication skills.

[38] The father also acknowledged there was about a one month period when Ms. Webb was pregnant with their child when he had no contact with her.

[39] The father believed his access visits with Dante at the Algoma Family Services went well as he and Dante would engage in a number of activities. Dante always seemed excited to see him and spend time with him. All affection is reciprocated. The supervised access notes demonstrated that there was a lot of positive interaction between father and son.

[40] During his examination in-chief, the father stated his last visit with Dante had occurred in late August or early September 2011. Although his mother was to supervise his visits, she was sometimes unavailable. Accordingly, he would call the Supervised Access Centre and they would check with the mother to see if a visit could be arranged. However, the mother would not agree to a visit.

[41] The father testified that although he attempted to arrange for access through the access facility from February 20, 2011 to August 14, 2011, the mother often cancelled visits with excuses such as Dante having soccer, hockey, other events or was ill.

[42] The father stated that when he did see Dante at the Supervised Access Facility, Dante appeared excited to see him and did not want to go home. Dante did not appear nervous.

[43] The father admitted during his examination in-chief that his relationship with his own mother was strained as she did not support his marriage to Ms. Webb-Guillory in particular since his wife had three children from a prior relationship. Furthermore, as his mother is semi-retired she did spend time in Florida and was not always available to supervise his visits. However, when his mother did act as supervisor to his visits, he would enjoy having Dante from 10 a.m. to 5 p.m. and his mother was always present with him.

[44] During cross-examination, the father stated he was not opposed to Dante playing hockey however he was upset with the mother for not being involved in the decision making process. He also stated he had not attended Dante's hockey as the mother had not provided him with a hockey schedule.

Supervised Access Centre Notes

[45] The Supervised Access Centre notes were provided from February 20, 2011 to August 14, 2011 and merit a review of same.

February 20: Father had a visit from 10 a.m. to 5 p.m. with the exchanges at the Centre only.

February 27: Father had a visit from 10 a.m. to 5 p.m. with the exchanges at the Centre only.

April 2: Father had a two hour visit at the Centre.

April 9: Mother cancelled as Dante had a hockey game.

April 16: Father had a two hour visit at the Centre.

May 1: Father had a visit from 10:15 a.m. to 4:45 p.m. with exchanges only at the Centre.

May 7: Father stated he tried to cancel his visit due to his illness but apparently called a different number. The Centre noted the father had called the direct line of the centre rather than the direct line of the program.

May 15: Visit was cancelled as the father's mother was not able to supervise.

May 22: Visit was cancelled as the father and the paternal grandmother who is to supervise are not speaking. The Centre will provide visitations until the matter is resolved.

May 27: Father had a two hour visit at the Centre.

June 3: Father cancelled visit stating he was sick and dizzy.

June 10: Father had a two hour visit at the Centre.

June 17: Father had a two hour visit at the Centre.

June 24: Father cancelled the visit with no reason.

July 3: Mother cancelled as she and Dante are gone for the weekend.

July 10: Father had a two hour visit at the Centre.

July 17: Father no showed for visit. The father had called to cancel but left a message on the wrong phone line.

July 24: Program closed.

July 31: Program closed.

August 7: Father's mother was unavailable to supervise. Exchange was changed to a visit at the Centre for two hours.

August 14: Father cancelled his visit without providing a reason.

Evidence of Paternal Grandmother Tina Guillory

[46] Ms. Tina Guillory provided a sworn affidavit dated December 20, 2011. She is the father's mother.

[47] Ms. Guillory indicated she initially met the mother about seven years ago when she and the father began their relationship. Following the separation she felt the mother made it very difficult for anyone in their family to have a relationship with Dante despite requests of access. It was devastating to her as a grandmother not to have regular access to her grandson.

[48] Following the temporary order dated May 6, 2010, she participated in access every other weekend as the overnight part of the father's visits had to occur at her home. She believed that access was going well as Dante always seemed to be happy enjoying time with his father and her as well.

[49] It was during one of these visits that she noticed Dante had a large bump on the right side of his head. When she asked him how he got the bump, Dante told her "Rob hurt me" and pointed to his head, referring to the mother's new partner Rob McIntosh. At the time, she did not call CAS as they had finally reinstated access to a regular schedule and she did not want the mother to deny access again. She did address her concern with the mother. The mother allegedly stated to her that Rob would never have caused the bump. When she asked her why, the mother responded that Rob had nothing to do with Dante and that Rob barely looks at Dante.

[50] Ms. Guillory left for a trip to Italy on August 6, 2010 and returned on September 7, 2010 to learn about the allegations made against her son. She was shocked and appalled by the accusations and believed them to be false. She called the mother the next day to see if she could visit with Dante on the upcoming weekend as she had many gifts for him from her trip but the mother refused. She requested and was denied access by the mother again on September 15 and 23, 2010. At that point she realized the mother was not going to permit her to have access with Dante. She was not able to give Dante the gifts she had purchased him in Italy until November 2010.

[51] The mother had also denied requests of access for her daughter Nancy on multiple occasions which included Thanksgiving, Christmas and Nancy's son's birthday.

[52] Ms. Guillory indicated that she was not always available to supervise her son's access as she does travel and the times for access do not always fit her schedule. Regardless, she believed supervision of her son's access to Dante was unnecessary.

[53] Ms. Guillory reported that during a visit dated February 20, 2011, Dante ran straight to his father, hugged him and told him he missed him which is the way Dante usually reacts around his father. They had a brunch and were able to open Christmas gifts they had purchased for Dante. Dante and his father played in the living room as she started lunch in the kitchen. The father called out to her and asked her to come to speak to Dante. She asked Dante what he had to say and Dante stated he had said a bad word and began to say the word "cock". She asked him where he heard this word and he said that his daddy had said it in the car. She told him that daddy had not said this word in the car. Dante then replied, "No Rob did". Dante did not tell her when Rob said this word to him but stated he was often left alone with Rob.

[54] During her evidence, Ms. Guillory stated she has always been willing to supervise her son's visits although she does not believe he requires supervision. Unfortunately, there are times when she cannot supervise as she does travel and sometimes she and the father do not always get along. As such, there are times when she does not speak with the father.

[55] Ms. Guillory also testified that she had been willing to supervise visits for the last six months. However, to her knowledge, the Supervised Access Centre had cancelled the visits because of Dante's hockey. Ms. Guillory did however state that she had no idea the father had not seen Dante for the past six months as she and the father had a falling out.

[56] Ms. Guillory testified that she had attended most of Dante's soccer games and she recalled the father had attended a few. She had seen Dante for a few minutes over Christmas when the mother came to pick up Dante's Christmas gifts.

[57] Ms. Guillory testified that she was under the impression she was not to call the mother. However, she then admitted that she had called the mother regarding Dante's birthday and about delivery of Christmas gifts. Furthermore, although Ms. Guillory complained the mother had not provided them with a hockey schedule, she admitted that when she asked the mother about Dante's hockey, the mother provided her with details.

Evidence of Beverley Webb-Guillory

[58] Ms. Beverly Webb-Guillory provided a sworn affidavit dated December 20, 2011.

[59] She and the father were married on July 21, 2010. They have one child together and she has three children from prior relationships.

[60] The father of her oldest child left when she was pregnant. The father of her two other children cannot be around children as he was convicted of sexual interference. When Ms. Webb-Guillory was asked whether the father knew this person, she replied that all three of them had been friends. She was surprised to learn the father stated during his testimony that he did not know him and only knew of him.

[61] Ms. Webb-Guillory testified that while she was pregnant with the father's child, they had separated due to their differences. She had known the mother when she was still in a relationship with her ex-partner and had some conversations with the mother on Facebook. She and the father eventually resolved their issues prior to their daughter's birth. Since then, she and the father had separated on two occasions. Ms. Webb-Guillory felt the father's mother was putting a wedge between her and the father. The father's mother had not opened her home to her and had never acknowledged their daughter.

[62] Ms. Webb-Guillory believed that she got along very well with Dante when they were able to spend time together.

[63] Ms. Webb-Guillory testified she did not have a criminal record. She was unemployed however received the child tax credit for her four children.

[64] She testified her husband was a very caring, supporting and loving father to all of their children and he was a very good father. He has always been a positive father figure in the lives of the children and is close to all of the children. All of the children enjoyed Dante's company.

[65] In August 2010 she was shocked by the false allegations of sexual abuse against her husband made by the mother. She had never witnessed any sort of abuse in their home. In fact she had only witnessed the father to be a loving and caring father. She cannot believe that her husband would ever behave in that fashion. Even though she and the father have had their own differences and stresses in their marriage, the father had always been caring to all of the children.

[66] Ms. Webb testified she felt the mother had coached Dante. She believed it was impossible for the father to have sexually touched Dante as she was always present when he had access. Accordingly, she refuses to speak to the mother.

Mother's Evidence

[67] The mother provided a sworn affidavit dated December 22, 2011. She indicated that she had a six and a half year relationship with the father and became pregnant with Dante.

[68] During the latter part of her pregnancy, the father was engaged to another woman, Ms. Rachel Barry.

[69] However, after Dante was born, she tried to work things out with the father for about two and a half years. However, the mother felt the father's shortcomings would not change and she eventually ended their relationship.

[70] Following the separation, the mother claimed she attempted to provide access to the father and his family. For the first few months, the father and his mother had Dante regularly for several hours at a time. She then did not hear from the father for quite some time until he called in September to ask if he could have Dante attend a family wedding in October. The mother permitted Dante to attend the wedding reception with his father.

[71] The mother stated that she had initially allowed Dante contact with the Guillory family and had even taken him to visit his paternal great-grandmother several times in the hospital in March 2009 before she passed away. The mother also accompanied Dante to her funeral.

[72] The mother believed she had always complied with the terms of any court order. When the father had his accident and was in the hospital for one month, she took Dante to see his father for one to two hour visits, two to three times per week. After the father was released from the hospital the court ordered visits could not resume as the father was unable to walk. Eventually, visits were reinstated until the end of August 2010 when Dante made sexual disclosures about his father.

[73] Since August 2010, Dante has continued to express to his mother his nervousness to be left alone with his father.

[74] According to the mother, the father made one call to Dante in early September 2010 but has made no further calls to his son. The father did attend at Dante's school in November 2010, for Dante's birthday.

[75] The mother confirmed that prior to the paternal grandmother leaving for Italy in the summer of 2010, the paternal grandmother was attending most of Dante's soccer games. The mother also permitted Dante to attend supper with his paternal grandmother and her family in August 2010.

[76] In response to the paternal grandmother stating she was told by Dante that the mother's boyfriend Rob had hit him, the mother replied she checked Dante and did not feel any bump as alleged by the paternal grandmother. She asked Dante about this and Dante apparently told her that his father told him to say that. When the paternal grandmother advised the mother about Dante's statement, she told her that Rob does not spend much time with Dante as she does not have him watch Dante since he is her son and her responsibility.

[77] The mother stated Dante is still happy to see his father however he expresses that he is worried about being alone with his father for fear "it" will happen again. Dante told his mother his concern on March 1, 2011 after he had two visits with his father.

[78] The mother has never heard Dante use the word "cock" and found it hard to believe that he would use this type of language.

[79] The mother denied that Dante had been left alone with her boyfriend Rob at the time of the incident involving the father in August 2011. Rob has a full-time job and when she cannot care for Dante, the maternal grandmother cares for him.

[80] Although the allegations against the father have been unsubstantiated, the mother believes her son. Whether the events were accurately described or not, Dante showed anger and upset regarding the visits and a very real fear that visits will not be supervised.

[81] The mother was not agreeable to have Beverly Webb-Guillory be an access supervisor for the father.

[82] It was the mother's recollection that the father called her mother on July 24, 2010 when he was having overnight access. He asked her to park in the driveway at his mother's as she usually parked on the street. Dante told her the next day that he and his father were hiding from Ms. Webb-Guillory. It was the mother's impression the father did not want his wife to know that she was there with Dante.

[83] On August 7, 2010, while picking up Dante at his paternal grandmother's home, the paternal grandmother was shocked to learn Ms. Webb and her son had been married. The paternal grandmother had been under the impression her son was moving out as he and Ms. Webb-Guillory were fighting. The paternal grandmother also disclosed to the mother that when the father stayed overnight at her home with Dante, Ms. Webb would drive by all night and phoned constantly which upset her.

[84] During the summer of 2009, when Ms. Webb was expecting a child with the father, Ms. Webb often messaged her through Facebook. She told the mother how the father was stalking her; that she had to call police; how they were fighting and how the father was denying the paternity of their child. Ms. Webb and the father were not together at that time.

[85] The mother stated Dante had been playing hockey on weekends and this would need to be incorporated in any access schedule. The mother felt she had attempted to discuss the issue of extra-curricular activities with the father however, he always became argumentative in front of Dante.

Joint CAS/Police Interviews with Dante

[86] On August 23, 2010, the mother accompanied Dante to meet with child protection worker Karen Barbeau and Detective McLeod of the Sault Ste. Marie City Police at the Society offices in Sault Ste. Marie.

[87] At the time of the interview, Dante was four years of age.

[88] A videotaped recording of this interview revealed a young boy who could not be engaged by the child protection worker and detective. Dante could not sit still and for the most part answer direct questions put to him.

[89] For example, he could not recall who lived at his father's home and who slept in which bedroom in an accurate fashion. Dante also suggested that his father was a police officer and later during the interview recalled his father being burned and going to jail as a result and this event had apparently occurred the day prior.

[90] Dante appeared quite confused in his answers, seemed unaware of when events took place and would not answer questions relating to any inappropriate behaviour or "bad stuff" at his father's home despite being queried on this subject several times by leading questions. Dante further noted he did not play games with his father when he was not wearing clothes.

[91] A second joint interview was held on September 8, 2010.

[92] Dante had completed his second day of senior kindergarten at the time of this interview. The child protection worker had gone to see him at his home between the first and second interview.

[93] Dante indicated at the commencement of the interview that he was nervous. He stated his mother had told him before going to school that he would be coming that same day to meet with the child protection worker and police.

[94] Despite the police officer asking Dante questions initially, the child remained unfocused playing with the couch cushions.

[95] Eventually, once the police officer left the interview room the child protection worker asked that Dante relay the information about his father that he had told his mother. Dante did disclose that his father had taken what appeared to be toy tools on his pee and had sucked on his pee pee. However, Dante could not recall when this had taken place other than stating "earlier" and initially suggested this had not occurred at his father's home but at his mother's home while he played with trains and was watching television.

[96] Thereafter, Dante disclosed the colour of the tools and stated his father had retrieved them from Kaden's room and had put them on his pee. Later during the same interview he stated the tools came from Cody's room.

[97] Dante indicated he could not tell the child protection worker where the tools were located in Kaden's room as his father told him it was a secret. He could not recall what room he was in when his father's sucked on his pee and could not recall who was in the home and then stated his father said it was a secret. Later during the interview he initially stated he was downstairs but perhaps upstairs when this had occurred.

[98] Dante would not answer whether he was wearing clothes then later during the interview suggested these events occurred when they played a game and that he was wearing clothes. He stated this was a secret game. He then seemed to suggest these events had happened in Cody's room. He initially stated it happened on one occasion and later suggested perhaps three times.

[99] The mother was present during both police interviews.

Evidence of Maternal Grandmother Nancy Turbin

[100] Ms. Nancy Turbin is Dante's maternal grandmother. She provided a sworn affidavit dated January 16, 2010.

[101] Ms. Turbin stated that Dante has always spoken freely with her as she has a close relationship with him.

[102] She was concerned about verbal utterances Dante made to her in her presence about his father sexually touching him. Ms. Turbin testified she never heard her daughter coach Dante about these utterances and accordingly, she had concerns about the father.

[103] Furthermore, she believed the father's lack of consistent access with Dante was negatively impacting her grandson.

Re-Opening of the Trial

[104] After the completion of the trial and pending a written reserved decision from this court, the Society commenced a court application involving the father and his wife and their four children. As such, counsel for the mother requested to re-open the trial and provide the court with this fresh evidence. This court ultimately agreed to re-open the trial permitting the information received from the Society to be tendered as fresh evidence in particular since I had been privy to this information via the child protection proceedings. At the request of counsel, I also permitted the filing of a fresh affidavit from each respecting party as nearly 12 months had lapsed since the last day of trial. Counsel for the parties were also provided a further opportunity to provide closing submissions on the fresh evidence.

Summary of Society Records

[105] It appeared both Mr. Guillory and his wife have been previously involved with the Society at some point in time in the past. However, the records did not specify many details regarding past involvement.

[106] The Society's records revealed that while Ms. Webb-Guillory was involved in a relationship with her prior partner Robert Muhonen who is the biological father of Hope and Kaden, the Society had an open protection file. Ms. Webb-Guillory had an open file with the Society from approximately 2002 to 2010. The records do not suggest the file openings led to any court intervention.

[107] In regards to the father, it appeared the Society was involved when the father was left to care for his girlfriend's child who suffered a serious head injury. As a result, the father was placed on the child abuse register. However, there is no indication whether there was any court intervention and it does not appear the father was ever charged criminally. The Society's notation on this involvement contradicted the father's evidence that the child was injured as a result of the actions of a babysitter and not by him.

[108] I can only assume the father participated in a parenting capacity assessment with the mother involving their son Dante. However, such evidence was never borne out by either parent's testimony. According to the Society records, clinical psychologist Dr. Hepburn completed a PCA in 2006 and apparently concluded the father demonstrated significant cognitive and intellectual limitations. As a result, the father would require training, social/emotional support and mentoring to acquire skills to parent his child. This PCA was never produced to the court and the author of course was never subject to any cross-examination.

[109] It appeared the Society received reports in June to July 2011, regarding inappropriate discipline vis-à-vis the father and/or his wife however, these allegations were not verified by the Society.

[110] In or about October 2011, the father attended at the Society's offices indicating he had concerns about his wife. He indicated they had separated one and a half weeks ago. He felt his wife had mental health and coping skills issues. He was concerned that his wife was suicidal as she suffered from depression. He showed the worker that his wife had sent him 119 text messages in a period of two days which he did not answer. Two messages were highly alarming as his wife claimed she wanted to take poison and go to Riverview.

[111] As a result of these concerns, the Society commenced a protection investigation. The mother denied being suicidal. She reported the father would sometimes be physical with the children which was upsetting to her.

[112] The three oldest children were interviewed and they all reported some corporal punishment by the father. They seemed happy he was no longer living with them in the home. Kaden more specifically reported that the father would use physical discipline by pulling his arms, throwing him against the wall, hitting and dragging him up the stairs. Kaden stated these actions would take place when his mother was not in the home.

[113] Shortly thereafter, the father and his wife reconciled and they began attending marriage counselling. The Society records indicated that over time, the counsellor felt these parents were committed to each other and their family.

[114] During the protection investigation, any visits at the home suggested it was always tidy and these parents were meeting all of the children's basic needs.

[115] The father denied ever being physically abusive with any of the children. He and his wife did indicate they have had to on occasion restrain Kaden and bring him to his room due to his aggressive behaviours.

[116] As a result of the family not willing to work voluntarily with the Society, the agency commenced a protection application in or about March 2012, seeking a nine month supervision order. At some point in time, the parents consented to a final order of supervision for a period of six months.

[117] The Society believed the risk of harm was high at the time they initiated the protection application due to historic concerns, the mother having a history of mental health issues with the Society, the father's cognitive abilities, the conflict between the couple and the allegations of physical discipline. The Society records also noted some concern as it appeared the parents would minimize protection concerns and often recant information provided.

[118] In May 2012, while the child Cody was hospitalized after a serious bicycle injury, the mother's Facebook page suggested the father had packed up his belongings and left during this difficult time. This page was however quickly removed and the parents stated they had fought but had not broken up.

[119] In the meantime, the parents have connected with some community supports to assist them in parenting their five children and are on the waiting list for the Triple P Parenting Program.

Mother's Fresh Evidence

[120] The mother provided a sworn affidavit dated November 22, 2012.

[121] The mother remained highly concerned with unsupervised access especially in light of the most recent protection application involving the father and his spouse.

[122] The father had not attempted to call Dante since September 2010. Furthermore, after trial in February 2012, the father initiated access through the Supervised Access Centre. Two visits were initially scheduled for two hours. The mother stated she attended for the visits and the father no showed. Visits at the Supervised Access Centre were then cancelled and no further requests for access were made.

[123] Dante was now seven years of age. Although he had celebrated his birthday, the father never acknowledged same. Dante has continued to raise the issue of sexual abuse involving his father.

[124] The mother had not heard from the paternal grandmother since trial and Ms. Guillory's last contact with Dante was at Christmas 2011.

[125] The mother stated the father had not taken an interest in his son's schooling or extra-curricular activities despite his repeated requests to wanting to be involved.

Father's Fresh Evidence

[126] The father filed an affidavit in response sworn December 19, 2012. He noted that since trial, he and his wife had a second child namely, Kyler Guillory, born December 14, 2012. Therefore, they have five children total in their care.

[127] The father stated the Society became involved with his family on September 2, 2011, when he made reports concerning his wife's mental health and thoughts of suicide. However, the father stated these concerns were now resolved. His wife did not have mental health issues as she had never been diagnosed with same or received treatment for same. He also stated his wife had never exhibited suicidal tendencies. The father claimed the text messages viewed by the Society were taken out of context.

[128] Although the Society had initial concerns of physical abuse, the father stated he had never harmed any of the children. The father noted that Kaden suffered from Defiant Disorder and ADHD and they have had to on occasion carry him up to his room. The father stated Kaden made false allegations against him. Regardless, Kaden was receiving programming and the father had been learning how to deal with Kaden's behaviours.

[129] The children had not reported further incidents of physical abuse since September 2012. In the meantime, he and his wife have attended for programming with Algoma Family Services to improve their parenting skills.

[130] The father and his wife were committed to their relationship and worked with a marital counsellor who no longer required them to attend sessions due to their excellent progress. They had worked hard on improving their communication skills with one another.

[131] The father agreed that he had to reschedule his first two visits with Dante as he had recently obtained employment and could not change his work schedule. The father claimed to have contacted the Access Centre to advise them in advance of the cancellation contrary to what the mother claimed.

[132] The father then attempted to schedule further access however he was told by the program's manager Dave Paquin that the mother would not be brining Dante to further visits.

[133] The father claimed to have contacted the school to obtain a calendar of events and activities and to obtain his son's school records. He also asked for Dante's soccer and hockey schedules from the coaches. The father stated he believed the mother had told the school and the coaches not to provide him with this information.

[134] The father agreed he had not called Dante as he had been advised in the past by both police and the Society not to contact the mother. He recalled an occasion when the mother had notified the police to lodge a complaint about him when he had called her home.

Law and Analysis

Voir Dire Evidence

[135] Prior to making any determination on the issue of access, I must first resolve the evidentiary issue of Dante's out-of-court statements. The mother has applied to the court to have the statements made by Dante which were videotaped by the Society and police submitted for the truth of their contents, as an exception to the rule against hearsay evidence, using the principle approach to the hearsay rule as set out in The Queen v. Khan, [1990] 2 S.C.R. 531.

[136] It was agreed by counsel that a voir dire would be held in order to determine whether any or all of the statements made by Dante met the test of necessity and reliability outlined in the Queen v. Khan, supra. It was agreed that the evidence from the trial would be used in the voir dire at the conclusion of trial to determine the admissibility and weight of these statements.

[137] Counsel agreed that the issue of necessity of these statements had been met given Dante's young age.

[138] In the case of Children's Aid Society of Ottawa-Carleton v. L.L., (2011), 22 R.F.L. (5th) 24, Justice Jennifer A. Blishen stated the following at paragraphs 16 to 23 which I found to be quite helpful as follows:

In dealing with the criterion of reliability, a voir dire must be held as to the factual foundation and the circumstances that court establish the statements' reliability. The court must have evidence as to the "circumstances guarantees of trustworthiness" as Wigmore put it, in order to determine reliability.

In Khan, supra, Madam Justice McLachlin indicated that many considerations may be relevant to reliability. She included such considerations as: timing, demeanour, the personality of the child, the intelligence and understanding of the child, the absence of any reason to expect fabrication, corroboration, and the child's having knowledge of matters that he or she would not otherwise have.

Although there are numerous potential considerations for the trial judge in assessing reliability, the test at the voir dire is only a threshold test. Lamer C.J.C., made it clear in R. v. K.G.B. (1990), 56 C.C.C. (3d) 200, that the trial judge is not to make a determination as to the ultimate reliability and weight to be given to the statement on the voir dire. That is a matter for the trier of fact.

In R. v. Hawkins, [1996] 3 S.C.R. 1043, the Supreme Court of Canada, once more, indicated that the requirement of reliability will be satisfied where the hearsay statement is made in circumstances which provide sufficient guarantees of its trustworthiness. It is repeated that the reliability criterion is concerned only with threshold reliability and not ultimate reliability.

In R. v. Khan, supra, the three-and-one-half-year-old girl's allegation of sexual abuse was found to meet the threshold of reliability as the child had no motive to fabricate or falsify her story which emerged naturally and without prompting; she could not otherwise be expected to have knowledge of such acts; and her statement was corroborated by real evidence, a mixture of semen and saliva on her sleeve.

On the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others.

[139] Considerations with respect to reliability in a child protection case were summarized by Judge Jones in the Catholic Children's Aid Society of Metropolitan Toronto v. R.M., [1992] O.J. No. 1097, as follows:

In the context of a child welfare proceeding, one or more of the following persons are frequently called, namely, a child care worker, a foster parent or a therapist, to give evidence of a child's out-of-court statement relating to sexual abuse. Under this exception, clearly only first hand hearsay should be accepted and then only after the court is satisfied of the following factors as they relate to the issue of reliability. The court must be satisfied that the statements have been accurately and objectively reported, and second, there is an absence of those factors that would undermine the reliability of the child's statement. The court should inquire into the circumstances surrounding the making of the statement to satisfy itself that the child had not been manipulated, coerced or pressured into making such a statement.

[140] In my view the videotaped statements which were recorded for the purposes of a criminal investigation as to whether charges should be laid against the father do meet the threshold test of reliability. The videotape reduces the concern about misreporting, distorting and fabricating evidence. It appeared the child had not been manipulated, coerced or pressured in making his statements. Despite the fact the mother was in the room during the interview, she never intervened inappropriately during the interview process and simply provided comfort for her four year old child.

[141] Having determined that the video recordings of the interviews held on August 23, 2010 and September 8, 2010 meet the threshold test of reliability, the court is then required to assess all of the evidence to determine what weight is to be used with the admissible statement.

[142] I am only prepared to give little to no weight to the videotape interviews. This is due to the fact that there are problems with the issue of the actual contents of the statements, either prompting or leading questions of Dante and the demeanour of the child during the interviews. In some cases, the statements made by Dante appear either inaccurate and at times confused.

[143] Furthermore in our case there is no real or supportive evidence as there was in the case of The Queen v. Khan, supra. There were no eyewitnesses to these allegations.

[144] Taking into account all of the evidence, I am satisfied that the ultimate reliability of Dante's statements made in particular to police and the child protection worker does not satisfy me on a balance of probabilities that the father sexually touched Dante.

[145] Despite having said the above, it is troubling that a young boy would make such allegations about his father. It is unclear what truly happened to prompt Dante in making such disclosures and it still remains concerning.

Access

[146] Section 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended states the following:

24. MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) BEST INTERESTS OF CHILD – The court shall consider all the child's needs and circumstances including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care or upbringing;

(b) the child's views and preferences, if they can be reasonably ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through adoption order between the child and each person who is a party to the application.

(3) PAST CONDUCT – A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

(4) VIOLENCE AND ABUSE – In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[147] The father initially commenced his court application against the mother in 2008 stating the mother had been frustrating his access.

[148] In my view, the evidence did not support the father's assertions. Perhaps it would have been more accurate for the father to claim the mother did not permit the access he felt he was entitled to.

[149] For example, both parties stated they separated in April 2008. The father commenced his court application one month later in May 2008. Yet, the father admitted that after separation he had gone out West for about one month.

[150] According to the mother's evidence, she permitted the father and his mother to have access several times for several hours at a time. However, she then did not hear much from the father again until September 2008 when he sought to have Dante for a family wedding in October 2008. The mother agreed to his request. I accept her evidence in this regard.

[151] Despite the father's belief that the mother attempted to deny him access, there were a number of temporary court orders made on consent of the parties. The consent nature of these orders certainly demonstrates the mother's willingness to permit the father access to their son. Obviously, the terms of access were in the father's view, restricting, as he was subject to either daytime access or supervised access when access was exercised overnight.

[152] The temporary court orders dealing with access originally made in 2009 and 2010 progressively increased the father's access rights. His own affidavit material suggested that for the most part, access had been going well until February 2010.

[153] In February 2010, the father was seriously injured when a pot of grease fell on him and he was hospitalized for one to two months. The father suggested in his evidence that the mother used this event to deny and frustrate his access.

[154] However, I accept the mother's evidence that she attended with Dante at the hospital to permit Dante to see his father. In fact, the father admitted himself that he could not initially exercise access to Dante once he was released from hospital due to the extent of his injuries.

[155] I also noted that by May 6, 2010, the father had consented to the mother having final custody of Dante subject to him having access from Saturday overnight to Sunday on alternate weekends as long as the overnight hours were exercised at the paternal grandmother's home. This was an expansion of the father's access. Clearly if the mother was attempting to use the father's accident to prevent access, she would not have consented to increase the father's access rights.

[156] In his own evidence, the father agreed access with Dante proceeded well until the allegations of sexual abuse were made against him.

[157] The father attempted to suggest the mother may have coached their son to make these allegations as they occurred three weeks after his wedding to Ms. Webb-Guillory. There was no evidence to suggest this was the motive for Dante's disclosures.

[158] Regardless, the allegations of sexual abuse against the father made in August 2010 and September 2010 were not verified or substantiated against the father. At that point in time, the father's step-children had been interviewed and they reported no concerns vis-à-vis their step-father. It was unclear from the evidence however how long the father had been living with his wife and her children as they had been recently married.

[159] Once the sexual disclosures were made by Dante, the mother was highly concerned about the father having unsupervised access continue despite the fact the Children's Aid Society could not verify the abuse and the police did not charge the father criminally. As far as I can tell, this was the only time the mother did not wish to comply with terms of an existing court order.

[160] As a result, the issue of the father's access to Dante was argued and a temporary order was made on February 10, 2011 which provided the father access on Sundays to be supervised at all times by the paternal grandmother. A further order was made on March 2, 2011, providing the father access at the Supervised Access Centre in the event his mother was not available to supervise.

[161] It was the father's evidence during trial that the mother continued to put up road blocks to frustrate his access from February 2011 through to August 2011. The father claimed access at the Supervised Access Centre was often cancelled as the mother would report Dante was either sick or was playing hockey.

[162] A review of the SAC notes indicated the use of the Centre on 21 separate occasions from February 2011 to August 2011. Of those times, the mother cancelled once on April 9, 2011 because of hockey and once on July 3, 2011 as she was out of town for the weekend.

[163] The notes from the Centre in fact revealed the father had himself cancelled the visits on seven occasions. Of the seven cancelled visits, the father provided no reason for the cancellation on two of them.

[164] For some reason, no further visits took place after August 2011. The father again claimed it was as a result of the mother's actions however, he provided no proof to suggest this was the case. The mother denied in her evidence that she was the reason why visits had ceased. The father did not bring a notice of motion to enforce his access rights nor were any letters filed during the trial suggesting the mother was not complying in bringing Dante to the Supervised Access Centre.

[165] I do note that as of September 2011, when access ceased at the Centre, the father was not on good terms with his mother and had separated from his wife. The Children's Aid Society had also commenced a new protection investigation as there were concerns Ms. Webb-Guillory had mental health issues and may be suicidal. Obviously, the father was dealing with a number of issues at that time.

[166] Since the trial, I was advised the father organized two visits at the Supervised Access Centre to see Dante however on both of these occasions he did not attend. The father claimed he called the Centre and left a message on the Friday to cancel for his Sunday visits as he had secured new employment which interfered with scheduled visits. The mother in turn stated she had attended at the Centre and the father had no showed.

[167] The father suggested thereafter that the mother refused to attend at the Centre for further visits. Unfortunately, no proof was tendered as evidence from the Supervised Access Centre to confirm the father's allegations. Considering the father's past complaints about the mother which have proven to be uncorroborated, I tend to believe the mother's version of events. Although it was not clear if the Centre simply cancelled any further visits due to the father being a "no show" or the mother now stating she would no longer be attending at the Centre, the latter would not at all be surprising considering the father's lack of consistency with access.

[168] Regardless, what is clear is the fact the father has had inconsistent access to Dante since at least February 2011 and has had no access since September 2011, a period of 17 months.

[169] Although the father has not had consistent access, he has not demonstrated an ongoing commitment through his actions. He has not called Dante since September 2010 and has not attempted to send his son any cards, letters or gifts for Christmas or his seventh birthday.

[170] Although the father claims the mother has not provided him with information regarding his son's schooling or sports, the father could have easily obtained this information himself and made direct contact with all professionals. The father had an access order and was entitled to attend at his son's school to meet with Dante's teacher or to attend any special school events.

[171] The evidence at trial suggested the father attended sporadically at Dante's soccer games despite the fact the paternal grandmother attended on a more regular basis.

[172] The father could have garnered the information about hockey through his legal counsel if it was not forthcoming from the mother. He could have also easily looked on the Soo Pee Wee website to determine when his son had hockey practices and/or games. To my knowledge, the father has not done so in the past two years despite his wish to become more involved in his son's life. Actions speak louder than words.

[173] In regards to the father's relationship with his wife it has been fraught with conflict and hence the involvement of the Children's Aid Society. This is not to say that in the future, the father and his wife will not continue to make positive strides.

[174] However, it is concerning that during the trial, both the father and his wife minimized their marital discord. They both suggested they had two brief separations as they wished to ensure the children were not being exposed to their arguments.

[175] At no time did the father or his wife advise this court they had an open file with the Children's Aid Society.

[176] The notes from the Society suggested Ms. Webb-Guillory suffered from some mental health issues which were initially reported by the father himself. Obviously, once the parents reconciled, the father attempted to recant his statements stating it was all miscommunication.

[177] Despite the father and Ms. Webb-Guillory stating at trial that the father had always been a loving, caring and supportive father, the notes of the Society suggested that at least in September 2012, his three step-children had all reported some form of abusive discipline by the father and the children were in fact elated their step-father had left the family home.

[178] Ms. Webb-Guillory herself had reported to the Society she felt uncomfortable with how her husband was physically treating her children. This was completely contrary to her evidence when she stated at trial she had never witnessed any sort of abuse. Of course, both the father and his wife suggested to the Society the father had never been physically abusive to any of the children and that Kaden had exaggerated the maltreatment he had suffered.

[179] Furthermore, it appeared there were a number of separations between Ms. Webb-Guillory and the father which included a time period prior to Cymbelina's birth, September 2012 and possibly May 2012.

[180] It is clear there have been conflicts, separations, allegations of excessive physical force and minimization of protection concerns by the father and his wife. The Children's Aid Society felt the risk of harm was high when they initiated their protection application in the spring of 2012 and there was ultimately a finding that the children were in need of protection with supervision warranted by the Society.

[181] I acknowledge the father and his wife are taking positive steps to address the risk issues borne out by the Society's protection application. However, they need to address their own personal issues and issues with their five children in their care prior to adding another child to the fray. They need to concentrate on attaining some stability within their own family unit.

[182] Furthermore, although the PCA is several years old, considering the conclusions at that time and some of the events which have transpired regarding the father's parenting, he should continue to improve and enhance his parenting skills by completing parenting courses as recommended to him by the Children's Aid Society.

[183] It was troubling to me that the father and his wife attempted to portray a picture to this court of a stable and happy family while the Society was conducting a protection investigation. Perhaps the father and his wife simply wished to put their best foot forward to ensure the father garnered unsupervised access rights to Dante. However, the father's credibility was further shaken when he attempted to suggest to this court that he did not really know Mr. Muhonen despite the fact that both the mother and his own wife testified the father had been friends with him.

[184] I am mindful that Dante is entitled to have contact with his father and that such a relationship could be beneficial and meaningful to him. Clearly when he did have access to his father, he was excited to see him and visits appeared to be positive.

[185] However, considering the inconsistent contact since August 2011 between Dante and his father for various reasons, the involvement of the Children's Aid Society with the father and his wife, I believe it is in Dante's best interests pursuant to the factors outlined in section 24 of the CLRA to have continued supervised access to his father at this point in time.

[186] In the event the father can mend his relationship with his mother and she is prepared to act as supervisor, access can be supervised by the paternal grandmother Tina Guillory on either Saturday or Sunday on alternate weekends from noon to 5 p.m. The exchanges of access shall take place at the Supervised Access Centre.

[187] In the event the paternal grandmother is either not available or unwilling to supervise, visits will take place at the Supervised Access Centre to be on either Saturday or Sunday on alternate weekends as arranged with the Centre.

[188] The father shall be permitted to call Dante during reasonable hours once per week.

[189] The father shall be entitled to access all information regarding Dante's education, medical condition or general welfare including the right to have direct communication with all professionals and coaches involved with Dante and to attend at any school functions and extra-curricular activities.

Released: March 1, 2013

Justice Nathalie Gregson, Ontario Court of Justice