WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 , (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: September 13, 2021 COURT FILE No.: C 11630/17

BETWEEN:

Catholic Children's Aid Society of Toronto Applicant,

— AND —

T.M.; V.F. and W.O. Respondents

Before: Justice Roselyn Zisman

Heard on: August 23, 2021 Reasons for Judgment released on: September 13, 2021

Counsel: Marshal Matias................................................................ counsel for the applicant society Gil Kay.................................................................. agent for the respondent T.M. (mother) Gary Gotlieb and Ayesha... counsel for the respondent V.F. (father of S.F. and L.F.) Lauren Speers............................ counsel for respondent W.O. (father of A.O. and I.O.) Katharina Janczaruk.......................... counsel for the Office of the Children’s Lawyer, legal representative for the children A.O. and I.O.

Decision on temporary motion

Zisman, J.:

[1] This is a motion by the Catholic Children's Aid Society (society) for an order pursuant to subsection 94(9) of the Child, Youth and Family Services Act (CYFSA) to vary the current access order so that access between V.F. [^1] and his children S.F. and L.F. is unsupervised and at the discretion of T.M. (mother) on several terms.

[2] The motion is supported by VF and the mother and opposed by WO (father of the children AO and IO) and by counsel for the children AO and IO.

[3] The motion relates only to the children of VF and the mother namely, their daughter SF who is 6 years old and their son LF who is 6 months old.

[4] However, it is submitted by both WO’s counsel and the OCL that the motion also has an impact on the children of WO and the mother namely, their daughter IO who is 11 years old and their son AO who is 13 years old.

[5] The background of this proceeding is set out in my decision of October 21, 2020 that dismissed a motion by VF to sever the child protection proceedings regarding his children and the children of the mother and WO.

[6] For ease of reference I set out the background as outlined in paragraphs 9 to 11 of that decision:

The society became involved with this family due to VF being accused of and pleading guilty to two counts of accessing child pornography and one count of making child pornography. The investigating police officers advised the society that they found videos and pictures on VF’s home and work computer. These included 136,000 pictures of child pornography which included full sexual contact among children and adults. In addition, there were six clips of VF’s neighbours’ child urinating in VF’s bathroom. He had previously given this child gymnastics lessons. VF’s laptop had been propped up in the bathroom to capture the child’s anus and vagina and there was a video of him training the child where he positioned her in ways to capture her genital area.

With respect to a series of these pictures of one child being sexually violated, VF had re-labelled the pictures with the neighbour’s child name and wrote that she “would love this, I hope she asks me to do this to her.”

On December 14, 2016, VF was sentenced to a further 8 months in jail. Cumulatively he spent 2 years in custody. As part of his sentence he was sentenced to a prohibition order for 10 years to 2026 that included conditions that he have no contact directly or indirectly with any person under the age of 16, unless supervised by a person the court considers appropriate, except for his child SF and then only with the approval of the mother.

VF was further charged and pleaded guilty on January 23, 2017 to 3 charges of breach of his recognizance and received a 2 year probation order. Specifically, these charges related to VF being around the children at Canada’s Wonderland, the Toronto Zoo and a park next to the mother’s home.

There was a consent protection finding that all 3 children were at risk of harm but only on the basis of section 37 (2) (l) of the Child and Family Services Act that is, on a consent finding.

In the Statement of Agreed Facts, almost all of the facts underlying the criminal charges were stroked out and VF only admitted to the fact that he had pleaded guilty to charges with respect to possession of and making child pornography. There is an inclusion of the fact that VF completed a Sex Offender Treatment Program at The M Clinic and that he was deemed to be at low risk of reoffending.

To complicate matters at the time that the Protection Application was commenced there was an outstanding SCJ proceeding between the mother and WO with respect to parenting issues regarding their children AO and IO.

Due to the commencement of this proceeding, the domestic proceedings in the SCJ were automatically stayed.

However, in order to permit the parenting issues between the mother and WO to be determined in the ongoing SCJ proceeding on October 10, 2018 I requested that the stay be lifted and that proceeding proceed.

The stay was subsequently lifted and an updated report from the Office of the Children’s Lawyer was ordered. As indicated that case is now scheduled for trial.

The connecting facts that join the two fathers and their respective children in this child protection proceeding are that the children share the same mother and the issue of what risk, if any, VF poses to the children. There is also an issue with respect to all children as to whether the mother can be relied upon to protect the children.

[7] In dismissing the motion to sever by VF the court held that it was in the best interests of WO’s children that he be aware of the information relating to VF as it directly impacted the risk if any, to his children.

[8] VF took the position that his privacy rights and the privacy rights of his family would be jeopardized if WO was permitted to have information about him and his family. He further submitted that there was a risk that information about his criminal case would be disseminated.

[9] After this decision, the society brought a motion to obtain an independent assessment of VF, to be paid for by the society, through the Centre for Addiction and Mental Health (CAMH) by a psychiatrist with expertise in assessing risk by sexual offenders.

[10] VF opposed such an assessment and wished to rely on the assessment by Dr. Jeff McMaster and Dr. Julian Gojer that had been filed in VF’s criminal hearings and other therapeutic reports from The Manasa Clinic. It was the position of the society that these assessments were prepared without any input from the society and the society had no input into VF’s therapy.

[11] On November 2, 2020, after the court ruled that an independent updated assessment should proceed, the parties spent a great deal of time negotiating the terms of the retainer agreement and agreeing upon what documents should be sent to the assessor.

[12] The assessment conducted by Dr. Mark Pearce, a forensic psychiatrist at CAMH, was filed with the court in May 2021.

[13] Based on the findings and recommendations in that report the society brought this motion.

Reports of Dr. McMaster and Dr. Pearce

[14] Dr. Pearce accepted the findings of Dr. McMaster’s assessment dated December 22, 2014 and a supplementary report dated November 5, 2015.

[15] In Dr. McMaster’s assessment of December 22, 2014 he made findings and reported as follows:

• In total over 110,000 child pornography images or videos were found and over 230,000 child nudity images or videos were found. Most of the material focused on girls aged 5 to 12 and the age range of females depicted ranged from 2 years to 17 years old. In addition, 5 or 6 videos were found of a neighbour’s 8 year old child [she was about 5 or 6 years old when the videos were made].
• VF stated that he “progressed” from viewing bondage pornography to torture pornography. VF reported that he did not masturbate to the material or the video of the neighbour’s child and was unsure if he was attracted to underage children.
• VF stated that he was uncertain why he videotaped his young neighbour. Dr. McMaster noted that VF also bought clothes for this young girl.
• Dr. McMaster opined that it was possible that VF was grooming his young neighbour by purchasing her a gymnastic outfit, coaching her, driving her family around and buying them gifts. There was also evidence he did this for other neighbours.
• VF suppressed his responses to the phallometric testing despite warnings not to do so. No valid phallometric results were possible due to VF’s likely suppression and test manipulation.
• VF minimized, denied and cognitively distorted his underlying paraphilic interest in underage females which would lessen his awareness of his risk to reoffend.
• Dr. McMaster found that VF suffers from paraphilia which increases his risk in engaging in the use of pornography and to a much lesser extent, a hands-on sexual offence that is likely elevated when using alcohol or cocaine. However, he does not suffer from a personality disorder, and has a relatively stable relationship and vocational history that suggests a lower risk.
• VF’s risk of recidivism appears to be very low and his risk for returning to internet pornography appears to be relatively higher than his risk of acting out through a hands-on offence.

[16] Dr. McMaster prepared a supplementary report dated November 3, 2015 as VF was accused of violating the terms of his bail release terms. Specifically, VF was accused of 3 breaches by being in the company of WO’s children and 3 breaches of the terms that he not be in a park or area where children under the age of 16 were present. The allegations related to VF being at Canada’s Wonderland, the zoo and a park near the mother’s home.

[17] Dr. McMaster concluded that after speaking to the mother and reviewing the police documentation that his previous opinion about the risk posed by VF had not changed. He based this opinion on the facts that firstly, VF was already at low risk; secondly, while VF participated in counselling and treatment while in custody he did not fully attend in the fall of 2013 at CAMH and his ongoing substance abuse after his initial arrest; and thirdly, VF’s lack of full treatment programming.

[18] He also opined that although VF’s family and the mother are aware of the nature of his offences and that this is potentially a protective factor but he noted that:

children can be victimized by known offenders who are family members given that it may be challenging to supervise a child at all times and given that family members may have a conflict that decreases full insight into the needs for risk management.

[19] In addition to Dr. McMaster’s assessment and report, Dr. Pearce also reviewed the Ontario Correctional Institute Sex Offender Relapse Prevention (SORP) report dated July 19, 2017 and peer review of the SORP report dated August 2017. The reports concluded that VF took responsibility for his offences and for intentionally searching for child pornography as opposed to his earlier position that he accidently found it by way of a computer virus.

[20] After VF’s release from custody, he attended for treatment with Dr. Gojer at The Manasa Clinic. VF attended the clinic’s Sexual Treatment program and continued to attend the maintenance group at The Manasa Clinic. His risk to re-offend was deemed as low and it was assessed that he has support and has acquired and continues to work on the tools and skills necessary to avoid re-offending in the future.

[21] Dr. Pearce also reviewed a letter from VF’s employer and spoke to the mother. He conducted one virtual interview of VF for about 3.5 hours.

[22] During the interview with VF, Dr. Pearce noted the following comments by VF:

• Despite initially denying that he masturbated to the videos he made of his young neighbour, when confronted he admitted to doing this and stated he was reluctant to admit this as he was embarrassed.
• VF admitted to a non-exclusive sexual interest in prepubescent females.
• With respect to the inconclusive results of the phallometric testing, VF only stated that he did not recall feeling that way.
• VF agreed with Dr. McMaster’s diagnosis that he “struggles with pedophilic tendencies” and that he was at low risk to re-offend but that he held cognitive distortions. VF stated that he worked hard in treatment to address and manage those concerns.

[23] During the interview with the mother, Dr. Pearce noted the following comments by the mother:

• She and VF has wanted to reside together for many years but WO had concerns about VF given his history.
• The mother admitted that she was aware that VF had masturbated to child pornography but had not disclosed it as she was aware VF was embarrassed.
• She had no concerns as VF was “very committed” to his therapy and in her opinion he was not at risk of re-offending.
• VF had met her older children and overall he was a “fantastic parent”.
• Both of her older children were good communicators and never expressed any concerns about VF. The mother further stated that the children would be able to advocate for themselves should VF act inappropriately.
• The mother was uncertain as to why her former partner [WO] was so concerned about VF.

[24] Dr. Pearce concluded that VF had historically abused alcohol and cocaine though he had been seemingly sober for a number of years. Dr. Pearce found that VF does not suffer from a personality disorder.

[25] Dr. Pearce further concluded that VF meets the criteria for non-exclusive heterosexual pedohebephollia. A diagnosis for pedophilia denotes a sexual preference for children but such an individual can engage in other forms of sexual activity and a proclivity for sexual contact with children cannot be expected to remit. Treatment for individuals with pedophilia involves psychological and at times pharmacological intervention.

[26] Dr. Pearce concludes at pages 19 to 20 of his report as follows:

In this case and while VF suffers from pedophilia, in my opinion it is worth remembering that he has not committed a “hands on” sexual offence. His sexual preference for children is non-exclusive and he has put forth a very good effort at taking and continuing in treatment and reducing his risk in other domains as well, such as avoiding substances and pornography. Ms M. [the mother] also presents as an insightful and diligent parent, which is a protective consideration. VF managed to complete probation and he has not offended since returning to the community. Finally and while sex of a child is typically not considered in such circumstances, as those with pedophilia are very often aroused to both male and female children (given that the bodies of children appear, phenotypically, quite similar), in this case, given the sheer volume of pornography located on VF’s computer many years ago, it is likely that his attraction is solely to young girls as opposed to young boys.

It is worth noting that the scientific literature has, over the past half a decade or so, evolved with respect to child pornography offenders in comparison “hands on” offenders. While the research database remains far from robust, it appears that offenders convicted only of CP-related offences are less likely to progress to “hands on” offending.

[27] Dr. Pearce then properly points out that decisions about access to children are not made by psychiatrists. He proposes several scenarios that the court and child welfare authorities may be comfortable with ranging from less to more risk enhancing. In all situations, he recommends that VF remain abstinent from alcohol and cocaine, continue to attend CA [cocaine anonymous] or similar groups at least a couple of times a month, remain in treatment with The Manasa Clinic at least until both children have hit puberty and he should avoid viewing pornography.

[28] Dr. Pearce recommends that the risk is assumable under a scenario that provides that VF have unsupervised contact with his children and reside with them while prescribed a less potent anti-libidinal medication, such as sertraline. He notes that this medication may reduce his sexual drive somewhat, by virtue of the side effects of the medication but otherwise the medication is generally well-tolerated.

[29] In response to a question regarding the risk VF poses to his daughter SF and to IO and AO, the older children of WO and the mother, Dr. Pearce states that generally VF should not have unsupervised access to children beyond his biological children and potentially to the WO children and that the risk/benefit analysis does not support him having unsupervised contact with other children and that he should not teach gymnastics.

[30] Dr. Pearce further opines that, given the age of the mother’s older children, VF presents almost no risk of harm to them, that his risk to his son is also very low and the highest risk is to his daughter SF, though his risk of sexually assaulting her is quite low.

[31] Although VF advised the society that he agreed with the society position on this motion, there is already a dispute regarding the medication being recommended. VF advised the society worker that he understood that Dr. Pearce suggested that he take the less potent medication whereas the society’s Notice of Motion requests a term that he take an ant-libidinal medication such as sertraline or another medication as prescribed by a physician at CAMH.

[32] The society worker sent an email to Dr. Pearce to obtain clarification regarding the medication being recommended. Dr. Pearce responded that it was not up to him but up to the judge, the society and VF. He stated that the more potent medication would certainly be the most risk-reducing but the anti-depressant would probably help somewhat and may be sufficient in the circumstances.

Other relevant events

[33] On December 4, 2018 VF applied for a variation of his prohibition order after advising the court in the child protection proceedings that he had no intention of seeking any variation. VF in his affidavit does not deny this fact but states that it was his right to do so.

[34] WO deposes that he only found out about this variation application as the Crown attorney advised his counsel. WO also deposes that he was advised that VF stated that he wished to “normalize” his relationship with the mother’s children. Although this is clearly hearsay, VF denies that he told the court that he wanted to normalize his relationship with the mother’s children AO and IO. VF states that he only told the court that he wanted to “normalize” his life with the mother. He admitted that he wanted AO and IO to attend SF’s baptism as they are a blended family. A transcript of this hearing was not provided.

[35] The outstanding domestic proceedings between the mother and WO with respect to their children was scheduled to proceed to trial. However, the trial was postposed as the mother gave birth to her son LF in March 2021.The parties attended for a trial management conference before Justice Faieta on July 9, 2021 with a further trial management conference being scheduled in August. Counsel advised that the mother would be requesting a further adjournment as she was in the process of retaining new counsel.

[36] At the court attendance on July 9^th^, 2021, counsel for the OCL expressed concerns that the outstanding SCJ restraining order only binds VF and does not bind the mother.

[37] On its own motion, the court made a temporary order finding it was in the best interests of the children, AO and IO, that the mother be bound by a restraining order.

[38] The court ordered that the mother take reasonable steps to ensure that VF comply with the restraining order against him made by Justice Paisley dated August 1, 2017 and the criminal prohibition order dated December 14, 2016 as those orders pertain to each of the mother’s children. The mother was further required to advise of any non-compliance by VF to the Toronto Police Service, the CCAS, the Office of the Children's Lawyer and WO.

Applicable legal principles

[39] The Notice of Motion by the society seeks an order pursuant to section 94 (9) of the CYFSA varying the current access order between VF and his children such that VF’s access be unsupervised with various conditions of supervision.

[40] LF is the subject of an outstanding Protection Application and on April 13, 2021 a temporary order for supervised access was made with respect to that child.

[41] However, the order of April 13^th^, was not a temporary order as submitted by counsel for the society but a temporary without prejudice order. The order provided that child LF be placed with the mother pursuant to terms of supervision and provided that the mother ensure that VF is not left alone with his son under any circumstances. The mother and VF did not file responding affidavits as all parties were waiting for the results of the assessment by Dr. Pearce.

[42] Accordingly, in my view, this motion with respect to LF is actually an original temporary motion brought by the society that has now changed its position and requesting a temporary order for VF to have unsupervised access to his son LF.

[43] With respect to the proper statutory provision that is applicable, section 94 (8) provides for access on terms the court deems appropriate, pending the adjournment of a Protection Application. But as that provision applies only in circumstances where the child is removed from the pre-intervention parent or placed with the society, section 94 (8) is not applicable.

[44] Section 104 appears to be the only legislative authority in all other cases regarding access. That section provides as follows;

The court may, in the child’s best interests,

(a) When making an under this Part; [Part III]; or

(b) Upon an application under subsection (2)

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate,

[45] I therefore conclude that this is the test to be applied to both the originating motion for access to LF and with respect to the motion to vary the final order regarding SF. With respect to SF a Status Review Application is outstanding.

[46] With respect to LF, the test is therefore simply what order is in his best interests taking into consideration the primary purposes of the legislation.

[47] With respect to SF, counsel for the society agreed that the test with respect to a variation regarding VF’s access to SF was a more difficult one as the society was seeking a variation of a final order on a temporary basis.

[48] With respect to SF, section 104 of the CYFSA, does not preclude the court from varying a final order on a temporary basis. [^2]

[49] The test for varying a final access order on a temporary basis requires the court to compare the current situation to the situation at the time of the original order. The change does not necessarily have to be material but there needs to be a change in circumstances based on the best interests of the child. The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also:

(a) that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and

(b) that the new order sought now represents what is in the best interests of the child(ren). [^3]

Analysis

[50] The court must be mindful at this stage of the proceedings the evidence is based on affidavit materials that are untested with respect to both children. It is difficult to determine the credibility of the parties when the evidence is contradictory. The only change being offered by the society in support of its changed position is the report of Dr. Pearce. The strength of his report and his recommendations have not been scrutinized by the court.

[51] There is no evidence that the current orders for supervised access by VF to his children is unreasonable, inappropriate, inconvenient, or impractical.

[52] No compelling evidence has been presented that it is in LV’s best interests that VF have unsupervised access to him.

[53] No compelling evidence has been presented that it is in SF’s best interests that the current status quo, namely that VF exercise supervised access to her, be changed.

[54] The onus is on the society as the moving party to prove that it is in LF’s best interests for VF to have unsupervised access. I find that the society has not met its onus.

[55] I also find that that the society has not met its onus to vary the final order for supervised access pursuant to section 104 of the CYFSA regarding SF.

[56] The motion is therefore dismissed.

[57] I make this decision based on the following findings:

a) The only significant new evidence relied upon by the society since the orders were made with respect to both LF and SF is the assessment of Dr. Pearce. b) The assessments of Dr. McMaster and Dr. Pearce and the reports from VF’s various counsellors have not been subject to any cross-examination either in the criminal court proceedings, the SCJ domestic proceedings or in this court. c) VF has not been co-operative with respect to providing his consent to various assessors speaking to all relevant individuals. VF did not consent to the Office of the Children's Lawyer in her investigation to speak to the police or crown attorney. He did not consent to Dr. McMaster speaking to his former wife although he places considerable blame on her for his stress that led to him abusing cocaine and viewing adult and child pornography. d) Neither VF or the mother advised Dr. McMaster that VF masturbated to both adult and child pornography. It was only after Dr. Pearce confronted VF that he admitted to masturbating to child pornography. The mother admitted that she was aware of this but did not tell the assessors to protect VF. e) Neither VF nor the mother advised the society that VF attempted to have the terms of his prohibition order changed. f) Neither VF nor the mother advised the society about the new restraining order against the mother. g) VF was alleged to breach the terms of his bail that prohibited him from having contact with AO and IO. In Dr. McMaster’s supplementary report there is evidence that the children told the society worker of the places they had gone with their mother and VF. VF places emphasis on the fact that he was not found guilty of being in the presence of these children. But the onus of proof is higher in a criminal proceeding than in this proceeding. A transcript of the court’s decision in the criminal proceeding was not provided. h) SF stated that her mother and VF take her to a park to play soccer. This would be a violation of the terms of VF’s prohibition order. VF deposes that it is not a park but on the front lawn of his apartment. The society did not attempt to clarify this issue. It is relevant as the risk to any of these children is based on the trustworthiness of the mother in ensuring that VF comply with the terms of restraining order and the prohibition order. i) The fact that SF has not reported any concerning behaviour by VF does not alleviate the risk of harm to her as frequently children do not report inappropriate behaviour especially from family member. It should be remembered that the young child VF videotaped in his bathroom did not report VF’s behaviour. j) The mother is not protective of her children AO and SO. Dr. Pearce reports that the mother stated that AO and SO would be able to advocate for themselves and tell her if VF acted inappropriately and they can protect themselves. These children are not aware of the offences committed by VF so they are not aware of the issues. Instead of the mother protecting these children she expects them to advocate and protect themselves. She has no plan to manage any risk to LF and SF. It is therefore questionable what plan she has to manage any risk to her other children. k) The mother has no insight into the impact of VF’s offences and the finding that he suffers from pedophilia or the risk to her children. She has stated several times that she does not understand why WO is so concerned about VF. l) VF suppressed and manipulated the phallometric testing in Dr. McMaster’s assessment. VF now states that he doesn’t recall doing this and the mother does not believe he would know how to do this. Dr. Pearce despite these concerns did not request any further phallometric testing. m) Dr. Pearce’s assessment is inherently inconsistent. He indicates that VF focused on pornography of girls aged 5 to 12 and the age range of females depicted was from 2 years to 17 years of age. He then states that VF presents almost no risk of harm to the mother’s older children given their age and low risk of harm to his infant son. IO is 11 years old. She is exactly in the age group that VF was attracted to. His daughter SF is 6.5 years old. She is the age that the neighbor’s child was when VF videotaped her. VF was in a position of trust with respect to the neighbour’s child as he would be in the presence of his daughter or IO. n) Dr. Pearce did not have a transcript of the testimony of Detective Richard Gaudet’s evidence at VF’s sentencing hearing. It is submitted by counsel for the society, VF and the mother that counsel for WO could have asked that this transcript be provided to Dr. Pearce either as part of his initial assessment or after his report was released. I am not prepared to ignore the contents of this transcript. VF responded to the affidavit of WO that attached the transcript as an exhibit. VF did not dispute the contents of the transcript as being inaccurate. At the sentencing hearing he had counsel at the sentencing hearing who did not object to the accuracy of the evidence. o) The transcript contains graphic depictions of the type of child pornography that VF viewed. For example, a 33 minute long video of a woman inserting sex toys into the vagina and anus of a 5 or 6 year old girl and having the girl perform cunnilingus on her. VF also manipulated 2 images of a girl between the ages of 5 to 7 years old depicting a male inserting his penis in the girl’s vagina and another one of a male having cunnilingus performed on a girl. VF changed the file name and stated he hoped ….[the neighbour’s child] would ask him to do this to her and with her. According to this evidence there were 4 videos of this child urinating. p) The transcript contains evidence of a further video of VF teaching her gymnastics. VF places his laptop between his legs and focuses it on the child’s genitals. While teaching the child gymnastics he manipulates her body to show her genital area. Detective Gaudet classified this video as child pornography. Based on discussion with the child’s mother, VF initiated contact by volunteering to babysit, volunteering to teach her gymnastics and he bought her a gymnastic suit. VF invited her over to watch movies and gave her lots of treats. It is of course not known if VF’s former wife had not reported him to the police whether VF’s contact with this child would have progressed to a hands-on assault. q) Based on the evidence before me, it does not appear that the society workers have fully reviewed the criminal transcripts or viewed any of the images or videos. It is also unknown if Dr. Pearce’s assessment would be different if he had the opportunity to view and confront VF with some of these images and videos. r) Both Dr. McMaster and Dr. Pearce rely on research that offenders that only view child pornography do not move on to hands-on sexual assaults of children. The research in this area is stated “not to be robust”. The strength of such research and if the research can be relied upon is an issue that can only be explored in cross-examination. s) VF and the mother wish to “normalize” their family. I find that this includes contact with AO and SO. I agree with the submissions of counsel for AO and SO that this is not a normal family. Both VF and the mother have continually denied, minimized, or blamed VF’s offences and behaviour on other factors. This presents a risk factor to all the children. t) VF was a professional actor for several years and the impact of Dr. Pearce only conducting a virtual interview will also need to be explored in cross-examination. u) VF and the mother have made several attempts to use this court’s findings in both the proceedings in the SCJ and in attempts to vary VF’s prohibition order. I accept as valid the concerns by WO’s counsel that other courts will place reliance on this court’s findings with respect to the risk that VF poses to children both his own and those of WO.

[58] In summary, I find that there has not been sufficient evidence provided to indicate that a change of VF’s supervised access is in either child’s best interests.

[59] On the contrary, having reviewed all of the evidence I find that there are heightened concerns about the mother’s ability to supervise VF’s access in a diligent manner given her lack of insight and her willingness to protect VF rather than to protect all her children from the risk VF may pose to them.

[60] Despite the findings that VF is at low risk of committing a hands-on sexual assault, low risk is not “no risk” and until the court has an opportunity to scrutinize the evidence further I see no urgency in changing the terms of VF’s access. There is no evidence that either child is disturbed or even aware that VF cannot be left alone with them.

[61] Despite the finding that there is also a low risk of VF re-offending by viewing child pornography or making child pornography, there is a history that VF viewed child pornography and made videos while at work and at home while living with his former wife unbeknownst to anyone. This is an offence that happens in private. Just as his former wife discovered the child pornography on his computer, there is no evidence as to what steps would be taken to ensure that the children do not have access to any computer that VF may have access to. These are issues that need to be further explored.

Order

[62] There will therefore be an order as follows:

1. The motion by the Catholic Children’s Aid Society of Toronto is dismissed.

[63] Although WO and the Office of the Children's Lawyer were the successful parties, there is no presumption that a successful party is entitled to costs in child protection proceedings.

[64] However, if costs cannot be settled and either WO or the Office of the Children's Lawyer is requesting costs, brief costs submissions not to exceed 3 pages along with a bill of costs and any offer to settle should be submitted within 30 days. The society, VF and the mother shall have 15 days to file brief responding submissions not to exceed 3 pages with a bill of costs and any offer to settle attached.

[65] I have been unable to locate any Answers filed by any party to the outstanding Protection Application regarding LF and the Status Review regarding SF. If these have been flied counsel should provide a further copy to the court. If parties have not served and filed these documents, counsel will have a further 30 days to serve and file their respective Answers and Plans of Care.

Released: September 13, 2021 Signed: Justice Roselyn Zisman

[^1]: For ease of reference T.M. will be referred to as “TM” or “the mother;” V.F. will be referred to as “VF” or “the father of SF and LF.” W.O. will be referred to as “WO” or “the father of SO and AO.” [^2]: Children’s Aid Society of Algoma v. B. (Amanda) and C. (Steven), 2012 ONCJ 351 [^3]: Children’s Aid Society of Algoma v. C.P., 2013 ONCJ 740