WARNING

The court hearing this matter directs that the following notice 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.

87.— (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.

87.— (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.

Court Information

Ontario Court of Justice

Date: October 4, 2018

Court File No.: C12043/17

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

R.M., Respondent/Mother.

Before: Justice D. Paulseth

Heard on: September 24 and 25, 2018

Reasons for Judgment released on: October 4, 2018

Counsel:

• Chithika Withanage, counsel for the applicant society
• Jessica Gagné, counsel for the respondent/mother

Reasons for Judgment

Paulseth J.:

1. Overview

[1] The Children's Aid Society of Toronto (the society) has brought a Protection Application, dated December 14, 2017, seeking a finding that D., born […], 2012 is in need of protection and an order of six months supervision with conditions, with the child remaining in mother's care.

[2] An appellate decision ruled that there is no other legal parent requiring notice in this proceeding, other than the respondent, R.M. (the mother) the mother of D.

[3] The basis for the application is the actions of mother in supporting her brother (maternal uncle), when he was charged initially in October of 2017 with luring, sexual exploitation, child pornography, and possession of child pornography. These six charges related to a teenage girl who was a student of the maternal uncle's in the high school where he taught. Mother acted as surety for her brother and he was required to reside with her, and, in addition to other conditions, not to be alone with D except in the presence of mother.

[4] A further concern at the outset was a referral from another school that the maternal uncle's own 11 year old daughter had missed some 60 days of school the year before and was exhibiting behaviour consistent with anxiety and being the victim of bullying.

[5] By the end of November, 2017, two more alleged victims, also females under the age of 18 who were the maternal uncle's students, came forward, making allegations of sexual misconduct. In total, sixteen charges relating to luring, sexual exploitation and pornography were laid and the maternal uncle was incarcerated on November 30, 2017 until his second bail hearing on December 4, 2017. Mother agreed again to act as his surety and release conditions were established, in particular to focus on the charges before the court; such that, he could not be with females under the age of 18, including his daughter, without the presence of her mother or the maternal grandmother. The child D was not mentioned in the second bail order of December of 2017.

[6] In the mother's Answer of June 21, 2018, she agreed to a court order that the maternal uncle not reside in the home and to supervise all contact between D and her brother. She is opposed to a finding in need of protection being made given her voluntary agreement, and seeks costs of the proceeding. She does not believe her brother poses any risk to her son but asserts that her brother has not resided in her home since January of 2018, pursuant to the court order and the variation of the bail terms.

[7] In its written Plan of August of 2018, the society asks for a finding and then no further order, pursuant to subsection 101(8) of the Act. In particular, the society states that the original protection concerns have been sufficiently mitigated by the mother's brother not residing in the home, so that a protection order is not required at this time.

2. Issue Before the Court

[8] There is only one issue before the court in this hearing. Has the Society proven on a balance of probabilities that there is a risk that the child is likely to be sexually abused or sexually exploited by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child, pursuant to subsection 74(2)(d) of the Child Youth and Family Services Act? (the new Act, effective April 30, 2018)

[9] I note there is only one change in this section from the old Act; specifically changing the term "sexually molested" to "sexually abused". In the case of Windsor-Essex Children's Aid Society v. J.C., [2018] O.J. No.3592, the court said that there was no real difference in interpreting the new language in the Act, compared to the previous legislation.

[10] The legal framework is expanded in the case law to include these considerations:

• It is not necessary to prove intention to cause harm; see Jewish Family and Child Service v. R.K., 2009 ONCA 903 (Ont. C.A.);

• A parent's sexual abuse of unrelated children can place his own children at risk; see Children's Aid Society of Oxford County v. G.(M.), 1994 ONCJ 4268;

• The timing for a "risk" finding has been reviewed in several cases and will be discussed in greater detail later in this decision.

3. Evidence Before the Court

3.1 The Criminal Proceeding against Maternal Uncle

[11] With the agreement of both parties, many documents relating to the criminal proceeding against the maternal uncle were filed with this court: the Recognizances of three successive bail orders, the transcript of the full bail hearing held on December 4, 2017, and the documents relating to his guilty plea and sentencing.

[12] On October 12, 2017, maternal uncle, aged 46 years, was charged with six criminal offences, including luring a child under 18, sexual exploitation, making sexually explicit material available to a person under 18, making child pornography, possessing child pornography and accessing child pornography. The alleged victim was 17 years old and one of his students in the high school where he taught. This victim was a friend of his teen age daughter. He was released with the consent of the Crown on conditions that included that he reside with his sister (the mother in this case) as surety, have no contact with the victim, and have contact with his children and nephew (the child in this case) only in the presence of the sister (mother) or the mother of his children.

[13] On November 30, 2017, after two more alleged victims came forward, the maternal uncle was arrested and further charges were laid. Again the victims were his students and were lured into his world of secret sexual gratification when they were sixteen and seventeen years of age. The investigation was not yet complete but in one of the photos, following a nude photo of the maternal uncle, there was a photo of him holding a small child (see the transcript of the bail hearing at page 18). The child was not identified. The Crown sought to have the accused held without bail but after a hearing on December 4, 2017, he was released with conditions, which included residing with his sister (mother) again but under house arrest.

[14] Mother testified at this bail hearing about her willingness to continue as his surety. The transcript indicated:

• She was present in court to hear the concerns of the crown and their case against the maternal uncle and to see the exhibits that the Crown tendered.

• She was prepared to have her brother continue to live with her for a number of months possibly years.

• She said that hearing the Crown's case and seeing the exhibits did not affect her willingness to continue to be a surety for her brother.

• She said that she never thought he was a threat in any way towards younger people or would do such a thing as a teacher.

• In response to a question from the crown, she said that none of the charges cause her to pause in supporting her brother, knowing that it might be that there is another aspect to him that she knows nothing about.

• She also testified that she had not complied with the previous bail conditions, numbered 10 and 11 on that Recognizance; firstly, that the accused was to attend and actively participate in any assessments, counselling and/or treatment as directed by his surety. She had not directed him to any such counselling. Secondly, the accused was to sign any necessary releases to allow his surety to monitor his attendance and progress in any assessments, counselling and/or treatment. She had not asked for any releases nor monitored any treatment.

[15] In her evidence in the bail hearing, the mother testified that she and her brother had been following the conditions to "a T" but she didn't know the name of the counsellor he was seeing, only his first name "George" and didn't know the counsellor's qualifications. She also testified that her brother had never resided with her before this and that he had been employed by the Toronto Catholic District School Board for about 20 years. The evidence of the accused was that he had been a teacher with the Board for about 10 years.

[16] In a discussion about conditions, the Justice of the Peace agreed with the defence counsel, that the conditions must be tied to the charges before the court, which did not include any charges with respect to young males. For that reason (a criminal law based legal reason), the condition relating to the mother's own son was not included on the second bail. The restrictions were, however, increased to include house arrest with specific exceptions.

[17] On January 17, 2018, the maternal uncle's bail conditions were varied to require the accused to reside with the maternal grandmother rather than the mother. This followed upon the temporary supervision order made in the child protection proceedings on January 12, 2018, one term of which required the maternal uncle to be out of the mother's home. This particular term in the child protection order was later overturned on appeal on June 6, 2018.

[18] On August 24, 2018, the accused pled guilty to four of the counts, specifically two counts of luring a child, one count of making child pornography, and one count of sexual exploitation of a young person. The Agreed Statement of Facts read into the record included:

• KC was 16 when she started grade 11 in September of 2014, and the accused was her English teacher. In January of 2015, he noticed her crying during an exam and befriended her. By September of 2015, while she was also a student in his class, they were chatting regularly on social media, instigated by him. He sent her adult porn and then sexually explicit pictures of himself and then pictures of him masturbating to pornography. He asked for nude photos of her and eventually she agreed. By January of 2016, he had lured her to his apartment and began a full sexual relationship with her while she was still 17 years of age. He took photos of them having sex and photos of himself masturbating to her nude photos. He stressed the secrecy of their relationship.

• NS was 17 years old and a student in the accused's English class in the 2016-2017 school year. She was experiencing significant mental health challenges and the accused was aware of these issues and the fact that she was seeing a counsellor. He instigated a secret relationship with her on social media. She regarded him as a trusted teacher and father-figure. He confided personal details of his sexual life with her and shared an erotic story he had written about an older man and younger woman's sexual relationship. By the summer of 2017, they were exchanging nude photos and he sent her photos of himself masturbating and having sex with an adult teacher in the same school.

• JM was also a minor and a student of the accused from January until June of 2017. He instigated a secret social media chat with her, including sexual topics. She recorded the conversations but didn't want to take offence as she saw him as a cool teacher. She started ignoring his advances.

[19] For the purpose of the sentencing, father's legal team referred him to a psychiatrist, Dr Michael Colleton. His report, dated July 26, 2017, was filed by mother with the consent of the society, but the society argued that little weight should be given to it, as it was conducted for a different purpose and is largely based on self-reporting by the maternal uncle. I will discuss this issue more later in the decision. Counsel for the mother did not seek to have Dr Colleton declared as an expert in any particular field, but I note his awareness of his duty, as indicated in his signed Form 20.1, Acknowledgement of Expert's Duty. His findings include:

• Maternal uncle has an adjustment disorder with depressed mood and anxiety. The maternal uncle does not report any significant predisposition to adult mental health issues but has had recurring symptoms of depression and anxiety dating back to his first separation in 2010. Since then he reports a significant degree of instability in his personal life.

• Maternal uncle has a cannabis use disorder of moderate severity. He has been using cannabis since age 16 on a regular basis, eventually using 3 to 4 grams a day in the summer months, and increasingly relying on it. He saw the use of drugs as reducing the stigma associated with his illegal behaviour and impacting his judgment.

• Maternal uncle does not have an anti-social or other personality disorder.

• Beginning in the fall of 2015 the maternal uncle reported a number of issues in his life: loss of relationships, social isolation, loneliness, lack of intimacy, increase use of social media, increase sexual preoccupation, increased and excessive pornography use, immersion in secret lives, and increasing lack of boundaries. He reported first viewing pornography online when he moved in with his sister (the mother in this case) after his separation from his first wife. His relationship with the mother of his fourth child was conducted in secret as she was a teacher in the same high school.

• Hypersexuality was noted by the doctor, based on the maternal uncle's reports, to have occurred between 2015 and 2017. This appeared to be temporary, in the doctor's view, and not necessarily inevitable in the future. "Clearly, it does need to be addressed in a meaningful fashion."

• There was no self-report of any deviant sexual proclivity, as the maternal uncle identifies as a heterosexual male with a preference for adult females. He was charged with Indecent Exposure in October of 2001 when a female that he was interviewing for a volunteer position complained that he had shown her several photos of nude women and had then left his pants zipper undone and shown her his erect penis. He was found not guilty of this charge.

• Dr Colleton reviews the principles of risk assessment with respect to the available history of the maternal uncle, opining that he does not have "static historical risk factors" which would only increase in risk over time. Rather, in the doctor's view, his issues are described as being related to criminogenic needs. These needs include antisocial personality; pro criminal attitudes; antisocial peers; substance abuse; family/marital problems; school/work problems; and absence of prosocial recreational activity. Maternal uncle does not have the most significant risk-elevating factors but his substance abuse and relationship issues need to be addressed in treatment. The doctor assesses his risk of recidivism as low to moderate.

• Treatment was recommended as a necessary method of reducing the risk. The doctor specifically recommends medication to manage symptoms of adjustment disorder and sex offender treatment directed at boundary issues, hypersexuality and pornography use, his tendency to secrecy in recent years, and focus on his future use of social media.

3.2 Appellate Decision

[20] On January 12, 2018, after hearing argument on two motions, the motions judge made two orders: a temporary supervision order with conditions and an order for service on the biological father. Both orders were appealed by mother.

[21] The appeal was heard on March 19, 2018 and a decision was released on June 6, 2018.

[22] The motion judge was overturned on the issue of notice to the biological father of the protection proceeding. He was found not to be a parent requiring notice by the appellate judge.

[23] The motion judge granted the society's request for a temporary supervision order with terms and conditions. This was upheld in the appeal and the findings of the appellate judge included:

• The correct test for a temporary supervision order was applied.

• The test for a child remaining with a parent under temporary supervision with reasonable conditions could not be more onerous than: "reasonable grounds to believe that there is a risk that the child is likely to suffer harm and the child cannot be protected adequately by an order under s.51(2)(a) or (b)". I note that the same test is used in the new Act but with different section numbers. The test refers to a comparison with the test for a child remaining in or being place in the care and custody of the society rather than remaining or being placed at home or in the community while under supervision.

• Counsel for mother argued, as she did in this hearing, that the society had no evidence that the child was at risk of sexual harm, because the criminal charges relate to alleged behaviour with post pubescent female student, and not young boys, young children, or members of his family.

• Specifically, the appellate judge said at paragraph 25:

[24] "In my view, she (the motion judge) made no palpable and overriding error (in her assessment of the risk, as opposed to the mother's assessment of the risk). There was evidence to support that conclusion. R.M. (mother's initials) acknowledged that G.M. (maternal uncle's initials) had acknowledged some transgression. The pending charges against G.M. are serious and allege behaviour that suggests extremely poor judgment, abuse of a position of trust and targeting victims who G.M. knew to be in a vulnerable state. Because R.M. judges there to be no risk to D (her child), the risk to D is exacerbated because R.M. does not believe there is a risk to be protected against. This is apparent both on the affidavit evidence before the motion judge and in the evidence of R.M. on the second bail hearing, the transcript of which was before the motion judge. R.M.'s failure to adequately protect D is part of the protection grounds specified in the protection application: the failure of the person having charge of the child to protect the child when she knows or should know of the possibility of sexual molestation or exploitation. In my view the Motion judge did not commit reversible error in coming to a different conclusion than the Justice of the Peace (in the second bail hearing)."

[25] I note that the motions judge's description of the risk, as quoted by and upheld by the appellate judge, was as follows:

[26] "It is really not the maternal uncle who is the protection concern in this matter, it is the mother…It is the mother's reaction to the charges which gives rise to the risk of harm, not the mere existence of the charges or the mere presence of the uncle in the mother's home'. She noted that the mother attended the bail hearing, saw photos depicting sexual activity between G.M. and at least one student, the exchanges between G.M. and the students, and the entirety of the evidence and a 'profound lack of understanding of the possible risk of harm'. The motion judge found that R.M. was prioritizing G.M. over D."

[27] The procedural error made by the motion judge in the view of the appellate judge was in adding a condition that was not sought by the society and thus not considered in the arguments of counsel for mother. The motion judge was not satisfied that supervising all contact between the child and the maternal uncle while maternal uncle was in the home under house arrest was adequate. The motion judge ordered the maternal uncle to be out of the home. Only that condition was removed on appeal.

[28] Counsel for mother then sought costs against the society and the appellate judge found that the society "did not act in a patently unfair and indefensible manner. Rather, it acted in good faith." and dismissed the request on June 21, 2018.

3.3 Agreed Upon Facts

[29] Counsel for the society and mother agreed upon a number of facts which were duly executed in a document and filed in the document brief for this hearing.

[30] The identifying information for the child in accordance with the new Act was set out: D.M. was born on […], 2012. He is not First Nations, Inuk, Metis nor Jewish. His mother is R.M. and his maternal uncle is G.M., born […], 1970.

[31] The intake worker for the society contacted mother on November 3, 2017, expressing concern that the maternal uncle was living in mother's home as part of his bail release conditions.

[32] Mother and worker spoke directly on November 7, 2017. The worker acknowledged the stress for the mother in such a difficult time. Mother was also frustrated by the restrictions on the maternal uncle's access to his two youngest children who were aged 2 and 11 years. Mother works primarily from home and D attends Montessori full time. Her home is large and spread over three floors, with the 4 bedrooms on the second floor and large play areas for D in the lower level. Maternal uncle was using a bedroom on the second floor. D. has a room on the second floor beside mother's room, with a gate that he could not open on his own. Mother is often in and out of D's room during the night as he wakes up frequently. Mother said that D. was never with the maternal uncle except in her presence and she was taking the bail conditions very seriously.

[33] In the same conversation, mother was asked what she thought of the charges against the maternal uncle. She referred to him as a "fantastic father" and "great brother", with whom she has a close relationship. In mother's view, since the alleged victim was 18 years old, it did not make sense to restrict access to young or male family members. Mother said she had never had any concerns about her brother. Mother said she was open to meeting with the worker but would be contacting her lawyer if the society attempted to place restrictions on her brother's access to her son.

[34] On November 10, 2017, mother, D, and a family friend (the same older gentleman who testified on behalf of mother in this hearing) met with the worker. Mother identified challenges that D had with separation anxiety, but otherwise the child had no diagnoses or behaviours of concern. Mother described the maternal uncle as the only male figure in her son's life and a significant part of his life. She was not aware of the police having any specific evidence against her brother. She knew of only one victim who was 18 years old. She and her brother had enlisted support from both family and criminal lawyers.

[35] On November 29, 2017, two more victims came forward with disclosures and electronic evidence against the maternal uncle. His bail was revoked and more charges were laid against him. He was incarcerated from November 30, 2017 until the bail hearing on December 4, 2017.

[36] On Friday December 1, 2017, the intake worker again contacted mother and said she wanted to speak with mother about her plan to continue acting as a surety for the maternal uncle. Mother said he was family and not a threat to a five year old boy and she intended to continue to be her brother's surety. Mother referred to the additional charges as "obviously allegations". The worker said that she wanted the mother to know in advance this time that the society did not want the maternal uncle to have access to D. Mother said her brother would not have anywhere else to go and in her view was not a threat to her son.

[37] The worker explained that there were now multiple victims and, in the absence of a thorough clinical assessment pertaining to the maternal uncle's sexual preferences, the society would not assume that a five year old male relative was risk free. The worker asked mother to problem solve about this with the rest of the family, as to who else he could live with, in the event he was released. They agreed to speak the following week. The worker said that either way she would be consulting with her legal department, once she knew what the new conditions were, and would proceed accordingly.

[38] On Monday, December 4, 2017, mother attended the bail hearing and heard the charges and then gave evidence about her commitment to be a surety. The maternal uncle's charges at that time were specifically: telecommunication with person under 18 years; invite sexual exploitation of a young person age 14 to 18; make available sexually explicit material of person under 18 years of age; make child pornography; possession of child pornography; access child pornography; telecommunication with person believed to be under 18 years of age; sexual exploitation of a young person age 14 to 18; telecommunications with persons believed to be under 18 years of age; sexual exploitation of a young person age 14 to 18; make available sexually explicit material of person under 18 years of age; make child pornography (X 2); possession of child pornography; access pornography; distribute child pornography.

[39] As part of the new bail conditions, maternal uncle was to reside with his surety, the mother, and not be in direct company of any female person under the age of 18 unless in the immediate presence of mother or the maternal grandmother.

[40] On December 8, 2017, the worker left a voice mail message for the mother indicating that the society would be initiating a protection application. The application was issued on December 14, 2017 and mother was served on December 15, 2017.

[41] In June of 2018, after the appeal decision, someone reported to the society that the maternal uncle had said he was going to move back into the mother's house.

[42] The family service worker has visited mother's home monthly since February of 2018 and has never observed the maternal uncle to be in the home and has never observed the mother breaching any of the terms of the temporary supervision order. The child has been interviewed by the family service worker approximately 5 times. Nothing of concern has been observed or disclosed.

3.4 Further Evidence from the Intake Worker

[43] The society intake worker filed an affidavit for her evidence in chief and was cross-examined by the counsel for mother.

[44] On October 16, 2017, the society received a referral from the school where the maternal uncle's daughter attended. On October 31, 2017, police contacted the society about the maternal uncle's criminal charges and information police received that this uncle had contact with his young nephew, the child D.

[45] Much of the evidence of the intake worker is in the Statement of Agreed Facts.

[46] In addition, the worker was very clear that mother told her both on the phone on November 7, 2017 and in the meeting of November 10, 2017, that she did not believe the allegations against her brother. Further, on November 10, 2017, the mother stated that there was only one victim who was 18 years old. Mother had not reviewed the evidence that the police had or really looked into the nature of the charges.

[47] Once the bail condition for supervised access to D was dropped, the worker was very concerned that there was no restriction on the maternal uncle's access and now he was under house arrest in the mother's home. Further, mother did not believe the charges.

[48] The society did not have the psychiatric report until after the maternal uncle's sentencing in August of 2018. Even with the report calculating the risk as low to moderate, the worker was concerned that so much of the report was based on self-reporting from the maternal uncle.

[49] The society took the criminal charges very seriously; particularly because the alleged victims were very vulnerable; one of them had serious mental health issues; and the maternal uncle abused his position of trust and power. The fact that the alleged victims were post pubescent females did not allay the other concerns. Also the use of computers for child pornography – making it, accessing it, and distributing it – and the possible exposure to D was a concern.

3.5 Mother's Evidence

[50] Mother is 45 years old. She testified about her strong faith and her fierce protectiveness of her son. Her relationship with the biological father had been "brutal" and ended before his birth. She said that she has been a devoted single mother. She has never left D with anyone except, on rare occasions, with her mother or a maternal great aunt.

[51] Mother lives in a large new home and has her own business in the film and television fields, which she can largely run from her home. She has spared no expense, she said, for the sake of her son. She has joined a private club so that he can have all the advantages related to sports and they have travelled together on many child-centred vacations.

[52] Mother described their family as very close, as the maternal grandmother was widowed at a very young age. The maternal grandfather worked as a social worker for Catholic Children's Aid Society but died of cancer when he was very young. Maternal uncle is three years older than her.

[53] Mother was shocked by the allegations against her brother. She testified that she did not know about any issues and never had any reason to be concerned. She believed that he was innocent until proven guilty. In a previously filed affidavit in this case sworn on December 26, 2017, she expressed disbelief about the charges.

[54] Mother was interviewed at criminal court by duty counsel before the first consent bail and, before the second bail hearing, she met with maternal uncle's lawyer on the Sunday evening. She said that neither of these lawyers had any concern about her being a surety. She felt that the Justice of the Peace at the second hearing removed the condition relating to her son as there was no evidence about a male child being a victim. She felt that these criminal justice professionals supported her own view that there was no concern. She disagreed with the society asking her to re-consider being a surety and did not have a family meeting or discussion about this issue as the worker requested.

[55] Mother also disagreed with the bail condition that the maternal uncle's access to his own daughter needed to be restricted in any way. The society wanted to supervise the uncle's early visits with his young daughter, which happened to be over Christmas and were delayed due to holidays.

[56] In mother's view, she completely followed the bail conditions, and after the second bail the maternal uncle did attend counselling and also had spiritual support.

[57] Mother did not let her brother come back to live with her after the appeal judge removed that condition. The bail condition had already been varied in the criminal court to another surety. She said that she has been very stressed by the society's actions in this case.

[58] Mother wrote a letter of support for her brother's sentencing hearing, offering him a job when his period of incarceration was finished. She thought her brother showed great remorse and she appreciated that he had "boundary issues". He was sentenced to 33 months incarceration and she believes he has been transferred to Joyceville. She did not disclose when she expected her brother to be released under day or full parole.

[59] The maternal grandmother and a long time family friend both testified on behalf of the mother. They attested to her devotion to her son and the family. In their words, she is a "fantastic mother".

[60] Maternal grandmother is a retired educator and spiritual advisor to the Toronto and Dufferin Peel Catholic School Boards. She has also taught Biblical Studies at the University of Toronto. She and a number of the support people who attended court are all highly educated as well as leaders in the education field and their church community.

[61] Maternal grandmother testified that she was present during a conversation with the society intake worker and testified that at no time did the mother say she did not believe the allegations. Instead, she heard mother say the charges were "only allegations".

[62] The family friend testified that he was present during a meeting between mother and the society and testified that at no time did the mother say she did not believe the allegations. He heard the mother say that the charges were "only allegations". This family friend was a good friend of the maternal grandfather and played a close paternal role in the family after the maternal grandfather's untimely death. He said that the maternal uncle is a musician and often joined a group of folks in their community who gathered together and music was part of this fellowship. In particular, he spoke of his and the broader religious community's support for mother when she decided to break from an abusive partner but continue with the pregnancy that resulted in this child's birth.

[63] Maternal grandmother described the family and community reaction as "devastated". She described her son as very popular and often when she was out with him in public in the past, "former students would come up to them and female students, and want to talk to him."

[64] Following the second bail, maternal grandmother observed that the maternal uncle withdrew and did not see anyone. I would note that he was then under house arrest. According to maternal grandmother, he spent as much time as he could with his children and with spiritual counsellors. She named at least five priests who came to the home.

[65] It was the evidence of the mother and her two support witnesses that they had never had any cause for concern about the maternal uncle. At no time during the evidence of the mother and her supporters was the term "conviction" or "guilty plea" used – only "allegations" and "plea bargain". The maternal uncle's transgressions were repeatedly referred to as "boundary" issues. I find that these three witnesses minimized the horrendous transgressions of the maternal uncle.

3.6 Maternal Uncle's Own Child Protection Proceedings

[66] A social worker who was, until very recently, employed by this Society was called as a witness by counsel for the mother. This social worker was the family service worker for the maternal uncle's own family case file with the society. Maternal uncle is the father of four children, three by his former wife (aged 18, 16, and 11 years) and a fourth (aged 2 years) from a more recent relationship. The youngest child by his former wife is an eleven year old girl and she is the subject of a child protection proceeding. That matter proceeded to court and resulted in a finding in need of protection related to risk of emotional harm and a supervision order with the child remaining with the mother.

[67] Mother was concerned because, following the results of the child protection appeal, the society learned of a rumour that the maternal uncle intended to move back with the mother. This was followed up with mother who denied this rumour and the issue was dropped by the society.

[68] This social worker testified that the rumour began with an email from the maternal uncle's former wife but he did not know where she received the information.

[69] Counsel for the mother called the current social work supervisor of mother's file to give evidence. The supervisor also testified that the rumour came from the maternal uncle's former wife but she did not know where the information originated.

[70] Counsel for mother asked both social workers if they had lied about this information and they denied lying. Both social workers testified that they had not wanted to tell the mother the source of the email as it crossed over into the other family file and they truly did not know the source of the former wife's information. Also, once they had followed up with mother, the issue was resolved.

4. Analysis

4.1 Onus and Standard of Proof

[71] At no time does the onus leave the applicant society to prove the risk of harm on a balance of probabilities.

4.2 Probability of Risk of Harm

[72] The evidence shows that, in laying the criminal charges, the police had reasonable and probable grounds to believe that the maternal uncle for several years had been luring, exploiting and assaulting female minors for his own sexual gratification.

[73] One of the minors was a friend of his daughter.

[74] All of the minor female victims were his students.

[75] One of the female victims was self-harming before and after the alleged misconduct.

[76] The criminal court exhibits showed not only the maternal uncle's dependency on pornography involving minor girls but also a picture of him with a child mixed in with the pornography.

[77] The maternal uncle admitted to Dr. Collaten that he started to use pornography for sexual gratification when he lived with the mother for approximately 9 months after his separation from his wife.

[78] The evidence shows that the maternal uncle had a predilection for secrecy in relation to his criminal sexual activities with minors and even his adult sexual relationship with another teacher that occurred about the same time.

[79] The information from the maternal uncle is that he has had a substance abuse dependency, often using daily and that he increased his doses during summers and in recent years.

[80] In the face of all of this evidence, the mother refused and continues to refuse to see any risk to her child from her brother, the maternal uncle. Mother persisted in responding to her brother's needs for a surety and, when asked to consider other possible solutions with the family, she did not.

[81] The evidence shows that mother denies observing or knowing anything about these "criminogenic needs", as later described by Dr Collaten.

[82] In my view, the fact that the charges related to young women does not remove the evidence of risk to this child, in that the maternal uncle was:

• secretive,
• showed extremely poor judgment,
• abused his position of trust and authority, and
• lured and groomed his victims for his own sexual gratification.

[83] Until the psychiatric report from Dr Collaten prepared for the August 2018 sentencing, there was no objective opinion that in any way reduced the risk of harm to this child.

[84] The opinion of a Justice of the Peace on a criminal bail hearing does not, as confirmed by the appellate judge on the child protection temporary order, decide the issue. Family court has different considerations.

[85] All of these findings are consistent with a risk of harm that is real and not speculative. See Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[86] In the case of Windsor-Essex Children's Aid Society v. J.C., [2018] O.J. No 3592, the court found a two year old male child to be in need of protection under the risk of sexual abuse or exploitation section, where the father admitted to sexually abusing a 9 year old girl he was babysitting over ten years ago. In that case a forensic psychiatrist said the father was a low risk to re-offend and a social worker found the mother to "have a strong sense of what it means to be protective".

[87] It is clear from the case law that a child can be at risk of harm even if the conduct is not directed specifically towards that child: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.).

4.3 Should Mother Know of the Possibility?

[88] In steadfastly refusing to assess or appreciate any risk by her brother, mother created a substantial risk to her son. The evidence is overwhelming.

[89] Mother deliberately closed her mind to the possibility that her brother was guilty and further, rationalized the conviction as a "plea bargain" and the issues as simply "boundary" problems.

4.4 Is Mother Failing to Protect the Child?

[90] Mother's lack of insight into the criminal and moral wrongdoing of her brother makes it highly unlikely that she will be able to protect her child. Her child is growing every day and, if not already, will become very savy around electronic social media. Her brother was using social media to exploit young women and even, as part of his luring activity, showing them a picture of him with a young child in his arms, mixed in with his nude photos and photos of him masturbating to sexual and nude photos.

[91] Maternal uncle was targeting young women over whom he had a position of trust and authority. He was the "cool" teacher, just as he is, according to mother and the extended family, the beloved father figure to this child.

[92] It was argued by counsel for mother and mother herself that she had voluntarily offered to never leave the child alone with her brother and to not have her brother back in her home. Mother cannot protect against something she refuses to see as a risk. Mother has already offered to employ her brother when he is released.

4.5 Credibility of Mother

[93] It is easy to be sympathetic to the position that mother found herself in around October of 2017. She and the maternal grandmother were devastated. Their community was shocked. There was publicity around these charges, as indicated in the bail transcript and surely, their own religious and social communities would all have known about these charges. The maternal uncle was suspended from his teaching position and, before the end of the school year in June of 2018, he was fired.

[94] Many families were affected and I would note, (although the mother does not) in particular, the victims and their families.

[95] In addition, the society was forced to investigate the maternal uncle's role with his immediate two families: the first wife and three children and the second relationship with the teacher that resulted in the birth of a child some two years before. The relationship of the maternal uncle to D and D's mother had to be investigated when it was learned that he had moved into their home, pursuant to the first bail order. Mother said she responded to her brother's phone call from the police station without hesitation.

[96] However, there must come a time for sombre reflection. It may be that the criminal lawyers were seen by the mother as the authority at that time and no discussion was to be had with the maternal uncle about these charges. If you are a surety, though, you would surely read the charges and might reasonably be expected to speak with the investigating officer. Mother said she did not really look into the charges.

[97] Mother testified that she had not followed the original bail conditions that mandated counselling and her personal monitoring of his counselling. She appeared to stand back from the entire criminal proceeding.

[98] When the additional charges came along, mother refused to listen to the society worker's concerns and went off on the Sunday evening to meet with the maternal uncle's criminal lawyer. She had no difficulty responding to the criminal needs of her brother and seemed to think that the advice from the criminal lawyers took all precedence.

[99] In the second bail hearing, she denied her brother had ever lived with her, when in fact he had.

[100] She did not even know the full name of her brother's counsellor, only recalling his first name. She did not know his credentials.

[101] Mother had no concerns about her brother who must have been smoking marijuana when he lived with her and had started watching pornography. He was struggling with his female relationships: he was separated from his first wife and then in a secret relationship with the mother of his fourth child. When that fourth child was born, mother must have known. Mother repeatedly said they were a very close family, but mother seemed to have no concerns about her brother's parenting when one of his daughters was reported to be seriously struggling with school attendance and anxiety. Mother had absolutely no concerns.

[102] All of this strains credulity.

4.6 Dr Colleton's Report

[103] Counsel for mother served notice of intention to file the report and the society did not seek to cross-examine on it. Counsel for mother did not seek to qualify Dr Collaten as an expert in any particular field but the clear purpose in filing it in this court was to prove that the maternal uncle was not and is not a risk to this child.

[104] The court has an ongoing gate-keeping function to ensure that expert reports are conducted and presented in a way that ensures relevance, reliability, and strict admissibility standards. Our courts are very aware of the importance of taking a rigorous approach to examining the reliability of expert evidence, based on the appellate case law and, particularly, since the Motherisk Hair Analysis Independent Review and the Goudge reports.

[105] The only credentials provided by Dr Collaten were in three brief paragraphs at the beginning of his report. He is a licenced and experienced forensic psychiatrist with experience in fitness assessments, general psychiatric care to the youth and adult offender populations, and assessments in civil and criminal proceedings. There is no information about his professional writings, presentations or peer reviews. He has no experience in child protection assessments or family court generally.

[106] This report was prepared and filed with the criminal court for the sentencing hearing on August 24, 2018.

[107] I am very cautious about the treatment the court should give this report in this case based on the following:

• There is insufficient information about the doctor's credentials.
• There is insufficient information about the science he is applying in conducting the risk assessment.
• The report was prepared for a criminal court purpose and
• Much of the report is based upon the self-reporting of the maternal uncle.

[108] The report, as offered by the counsel for the mother, is however quite relevant to this court for these reasons:

a. It is information available to mother about the possible risks that her brother poses;

b. The timing of that information is relevant; and

c. The mother appeared to draw conclusions as a result of reading this report.

[109] There is no doubt that Dr Colleton conducted and documented a very thorough review of all of the criminal evidence and interviewed the accused and two collateral people closely connected to the accused/maternal uncle, including the mother in this case. The statements by the accused are completely hearsay. These statements are presumptively inadmissible for the truth of their contents because of the inherent difficulty in testing their reliability. The maternal uncle is not here to give evidence and he is not a party to this proceeding.

[110] Counsel for the society pointed to the Supreme Court of Canada decisions in R. v. Lavallee, [1990] 1 SCR 852 and R. v. Abbey, [1982] 2 SCR 24 in which the weight to be given an expert opinion is directly impacted by the extent to which the factual underpinnings of the hearsay information relied upon is proven. This is particularly relevant to an accused, such as the maternal uncle in this case, who may be trying to minimize and narrow his scope of responsibility.

[111] The doctor's information however is still helpful to the issues I outlined above. I also quote from his report information told to him by the mother as she gave evidence and was cross-examined in this hearing. I accept the hearsay information told to him by the maternal uncle not as factually true, but as information that was then available to the mother.

4.7 The Timing of the Risk Finding

[112] Counsel for the society submits that, although there is some conflict in the law, the preferable approach to the timing of a finding is a more flexible approach. Counsel for the mother disagrees.

[113] The decision of N.V.C. v. Catholic Children's Aid Society, 2017 ONSC 796, appears to determine that the finding of risk of harm, and hence the child's need for protection, must be determined at the date of the hearing and not at the date of the apprehension or the beginning of the proceedings. This case may be distinguishable on its facts as N.V.C. dealt with one episode of intoxication with a recommendation for a further child protection order.

[114] This approach also seems to conflict with the longstanding line of cases that followed the reasoning of Justice Czutrin in Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No 5754 (SCO-Family Branch), where he stated:

The conclusion that s. 37(2), 47(1) and 57(1) refer only to the start date is to interpret the Act in a manner that would undermine the purposes of the CFSA. (now CYFSA) If … the only time that can be considered when determining protection is the start date, it might result in the court returning a child to a person even if the court came to a conclusion the child was in need of protection at the time of the hearing as opposed to the date of the apprehension… This cannot be in the best interests of a child. The legislation emphasizes the need to avoid having children in limbo… The act intends to eliminate delays…Restricting the relevant date for a finding to the start date is an interpretation that conflicts with the other sections of the Act and may be contrary to the best interests of protecting children from harm. It is contrary to the direction of the Supreme Court of Canada. (para.49)

[115] Two more recent cases clarify the interpretation of the term "is a risk". In Children's Aid Society of Toronto v. S.M.T., [2018] O.J. No. 4200, Justice O'Connell said that the court should and can admit evidence arising at any time up until the date of the hearing. In Children's Aid Society of Toronto v. S.A., 2017 ONCJ 366, Justice Pawagi pointed out that the risk subsections must be considered as part of the legislation as a whole, whose objective is the best interests, protection, and well-being of children. As well, she points to subsection 57(9) (now section 101 and the same section relied upon by the society in this case for requesting no further order.) which would be superfluous if the only relevant time was the date of the hearing.

[116] Counsel for the mother submits that the use of the past tense for actual harm sections and present tense for risk of harm sections suggests that only the time of the hearing is relevant for risk based harm. This does not flow logically in my opinion as the actual harm sections rely on specific acts or events or diagnoses that have a date in the past, whereas risk is created by response to one or more issues. Response can include one or more points in time.

[117] There is also the role of temporary orders to consider, because motions that result in temporary supervision or care and custody orders should ameliorate risk and assist the parents in preparing better plans for their children. The type and degree of risk should then change.

[118] It is important to note that child protection proceedings are not like general civil litigation. There are several overarching and paramount principles to consider – the best interests, protection, and well-being of children. Taken together with the Family Law Rules, there is a focus on timely and proportionate response to managing issues in a least intrusive and respectful manner. To interpret the finding hearing as only being able to make a determination at the time of the hearing would promote delays and further litigation, a result which is anathema to the heart of the legislation.

[119] I find there was risk of sexual harm at the beginning of this application:

• The maternal uncle was a sexual predator living in the child's home.
• Mother was asked and refused to consider another surety for her brother to live with.
• Mother did not believe the allegations.
• Without the bail conditions relating to D, there was no restriction on maternal uncle's access to him.

[120] In January, 2018, mother was opposed to any restrictions on maternal uncle's access to D. She then appealed the entire temporary order, while at the same time had the house arrest bail term changed to maternal grandmother's home. Although mother was stating that she was voluntarily not permitting any unsupervised access by maternal uncle to D, she was also very clear that to her these were boundary issues and she didn't believe all the allegations. In my view, mother could not be trusted to supervise the access of the maternal uncle to her son. I find that there was continued risk throughout this period of time.

[121] Thirdly, the court finds that at the time of the maternal uncle's conviction and sentencing on August 24, 2018, there continued to be a risk of sexual harm or exploitation as mother persisted in not believing any risk existed. She could see the report of maternal uncle's psychiatric consultation and the description of the low to moderate risk even with treatment. The self-reporting actually indicated he was viewing online porn in her home and using marijuana regularly, which reduced the "stigma" for him of abusing his young and vulnerable female students. Mother wrote a letter to support her brother who ultimately received a sentence of 33 months in custody. The letter offers him employment on his release. His release to day parole could be as early as 5 months after sentencing, or six months before full parole is available. Full parole is possible after one third of the custodial sentence has been served, which is eleven months into a thirty three month sentence.

4.8 Risk vs. Ongoing Need for Protection

[122] The society has a duty to reassess its position as circumstances warrant over time. See Children's Aid Society of the Niagara Region v. D (W.); Child and Family Services of York Region v. E.(P.), [2003] OJ No 4884 (SCO) and Children's Aid Society of London and Middlesex v. S.(E.V.F.).

[123] In this case the society has carried out that duty by using the temporary supervision order and conditions to monitor the situation and continue to work with the mother as the criminal process has continued. Once the maternal uncle pled guilty and was sentenced, the imminent risk was ameliorated. Taking the least restrictive approach, the society now seeks no further protection order.

[124] In my opinion, however, the ongoing risk related to the mother's insight and judgment has not yet been addressed.

5. Conduct of the Society

[125] Counsel for the mother has criticized the society for:

• Not being clearer with the mother that they would bring court proceedings if she agreed in the second bail hearing to be a surety. I disagree. Although the worker was prepared to admit that she could have been clearer, the mother agreed in her evidence that the worker was going to consult her lawyer and that the society did not want the mother to be a surety and have the maternal uncle in the home.

• Dragging the case on for nine more months after the maternal uncle was out of the home, pursuant to a new bail arranged after the court ordered him out. I disagree. The court order was appealed by mother and argued and a decision rendered by the SCO in a timely way but not concluded until June of 2018. The mother had not filed an Answer in this proceeding until June, 2018. The fact that the finding was in dispute was made clear in the Continuing Record of the case and on January 4, 2018 was referred to an Assignment Court being held on January 9, 2018 at 2 p.m. for a hearing to be scheduled. A trial management conference was scheduled for February 2, 2018. On January 31, 2018, the trial and trial management conference dates were vacated at the request of counsel for mother on consent, in order for mother's appeal to be heard. It is clear from the record that this hearing on the finding would have been completed in February or March of 2018.

• Counsel for mother accused two of the social workers she called to give evidence of lying, without any evidence to support that accusation.

• Counsel for mother accused counsel for the society of lying about the disclosure of the email from the maternal uncle's first wife to the society workers. I reject that allegation as totally unprofessional and without foundation.

[126] During the trial management conference, (my first meeting with counsel on this case) I warned counsel not to spring surprises on the other counsel or the court. I asked them to discuss any new information in advance and outside of court and to reach agreements where they could. I intended this hearing to be focused and conducted in accordance with the highest professional practice standards to which our court has become accustomed.

[127] Unfortunately, on the first day of the hearing, counsel for mother surprised counsel for the society and the court with a document to be filed. She said the document was a statement of agreed facts that had been filed and accepted as the basis for orders in the maternal uncle's own family' child protection proceedings. This was not true. The document could not be admitted by this court but I did endeavour to assist counsel in obtaining the evidence she wanted in another way.

[128] Counsel for the mother introduced visitors to the courtroom, taking both the court and the counsel for the society by surprise. The legislation is very clear that these proceedings are not open to members of the public. The agreement of both the counsel for the society and the court was required for these visitors to remain.

[129] I found the evidence of the intake worker, the current supervisor and the former worker for the maternal uncle to be very credible. They were very calm and consistently understated. They were very sympathetic to the stressful situation the mother found herself in. They were focused on the least restrictive and intrusive response to a very complex situation. They were very complimentary of mother's parenting in all other respects than the current issues before the court.

[130] It was clear from the evidence of the mother and her support network that together they are very critical of the society and disdainful of their opinions and work. If any professional has encouraged that attitude in the family, it is very unfortunate and very undeserved.

6. Conclusion

[131] I find the child's identifying information to be:

D. M., born […], 2012. He is not First Nations, Inuk, nor Metis.

[132] Based on all of the evidence outlined above, but in particular:

• Mother's refusal to see the risk that her brother posed to her son;

• Mother's refusal to look into the first set of criminal charges against her brother;

• Mother's refusal to look into and monitor her brother's treatment as ordered in the first bail;

• Mother's refusal to consider not being a surety for her brother when two more victims and a second set of charges were laid against him;

• Mother's failure to appreciate the second set of charges as further indicators of the risk her brother posed;

• The risk posed by the maternal uncle being more than boundary issues;

• The maternal uncle preying upon vulnerable teenage girls when they were under the age of 18; he groomed them and sexually exploited them;

• The victims of the maternal uncle being his students;

• The significant risk of sexual harm continued, in my view, up until the guilty plea and sentencing of the maternal uncle. Mother's goal was to manage the society until the criminal proceedings were over and then get the society out of her life. Throughout all of this time period mother showed no insight into the terrible misconduct of her brother;

• This risk continuing with the release of the maternal uncle from incarceration, possibly in the coming months;

• Mother's understanding of the forensic report on the maternal uncle's risk of recidivism and treatment recommendations is very "cherry picked". She sees the maternal uncle as having normal sexual preferences for post pubescent girls. The report says much more than that;

• Mother being unable protect her son from a risk she doesn't see. The risk is still there even though the maternal uncle is in jail. Mother's lack of insight and poor judgment in this matter pose the risk and those issues are not resolved;

• The mother being untrustworthy based on examples of credibility concerns outlined above; and

• Mother not providing any information as to the possible release dates for the maternal uncle. The Government of Canada, on the Correctional Services web site, indicates that offenders serving federal sentences (of two years or more) are eligible to apply for full parole after serving one third of their sentence and to apply for day parole six months prior to full parole eligibility. Maternal uncle's possible release date is just months away.

I find the child to be at risk of sexual abuse or exploitation, pursuant to subsection 74(2)(d) of the Act.

[133] Having found the child to be in need of protection, the court must address the question of whether a further order is necessary to protect the child in future. The court must consider the child's best interests, as defined by subsection 74(3). The child is doing well by all accounts. The degree of risk posed by the mother's blind support of the maternal uncle has been dissipated somewhat by his removal from society. The issues will not fully be resolved, however, until the mother comes to terms with them and appreciates the tremendous amount of treatment that her brother requires for even the strongest proposed expert to classify him as "low to moderate risk". That level of risk is still too high for her child to be exposed to.

[134] If the society had sought a supervision order in this case, I would have granted such an order to ensure the mother had connected with treatment for herself. I can only hope that mother will take some time for herself and obtain mental health support to address the burdens that she carries. Accordingly, I do not make a further order at this time.

Released and Dated at Toronto, this 4th day of October, 2018

Debra Paulseth