COURT FILE NO.: C119/11-01 DATE: 2017/05/18

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

BETWEEN:

Children’s Aid Society of London Middlesex Timothy Price, for the Applicant Applicant

• and -

ARM Self-Represented

AM

DW Brian Doody, for DW Respondents

HEARD: February 16, 17, 21, 22, 23 & 24, 2017

REASONS FOR DECISION

GEORGE J.

INTRODUCTION

[1] The Children’s Aid Society of London & Middlesex (Society) seeks a finding that the child XR, born **, 2011, is a child in need of protection pursuant to ss. 37(2)(b)(i) and 37(2)(d) of the Child and Family Services Act (CFSA).

[2] It asks that the child placed in the care of, ARM (mother), subject to Society supervision, for six months.

[3] The mother filed an Answer and Plan of Care, and participated at trial. She is self-represented. She opposes a protection finding and asks that I dismiss the application.

[4] The respondent DW (father) is XR’s father. He filed an Answer and Plan of Care, and participated at trial. He has counsel. He too opposes a protection finding and asks that the application be dismissed.

[5] The mother and father are currently in a long-term relationship. They share identical trial positions. They want to live their life, and together care for XR, free from Society intervention.

[6] The Society’s pleadings set out a request for a protection finding, and disposition, relative to the mother’s two other children, AM born **, 1999 and AM born **, 2004. Its trial position, however, seemed to be that neither are in fact in need of protection. I agree. They aren’t. Respecting those two children the Society’s application is dismissed. That leaves XR.

[7] The respondent AM, is AM and AM’s father. He filed an Answer and Plan of Care, but did not participate at trial. In any case, given my findings respecting his children, this matter no longer concerns him.

CHRONOLOGY & COURT ORDERS TO DATE

[8] This proceeding has taken far too long to get to this point. I appreciate the child is not in care, but this is unfortunate. I am not going to assign blame. I acknowledge the divergent positions made an early resolution unlikely, and events did intervene making it difficult to commence the trial earlier. I won’t dwell on the various obstacles that have prevented an earlier hearing, but litigation concerning a child should never linger this long.

[9] This protection application was issued on February 1, 2011. The first return was February 3, 2011. On that date, Henderson J. made a temporary supervision order placing all three children with the mother, subject to terms. The father was not permitted to reside in the family home and his access was to be supervised. The Society seeks a final order on essentially these same terms.

[10] On July 25, 2011 Tausendfruend J. ordered the father to participate in anger management programming, and directed him to consent to the release of all records concerning him in the possession of the London Police Service (LPS).

[11] On December 4, 2012, Henderson J. ordered, on consent, that the Center for Addiction and Mental Health (CAMH) Sexual Behaviours Clinic assess the father pursuant to s. 54 of the CFSA. The objective was to determine whether the father suffered from any psychiatric, psychological or other disorder or condition that causes him to pose a risk to children. This assessment contemplated the use of phallometric testing. This was conducted, and Dr. Robert Dickey prepared a report. More on this shortly.

KHAN APPLICATION

Father’s History

[12] The protection concerns relate to the father, and emanate from a previous matter involving him and two of his children, K and S, from a prior relationship with CW. While never charged criminally, it is alleged he acted sexually inappropriate. Both made disclosures to their maternal aunt SW. K also made disclosures to Society worker Debbie McDonald. I am concerned primarily with K’s utterances.

[13] The Society seeks to introduce these for the truth of its content, and called each of SW and Ms. McDonald as witnesses. This was a blended hearing. The evidence heard on the voir dire is to be applied on the trial proper, subject to my ruling on the admissibility of the statements.

[14] Regardless of my decision on admissibility, it’s important that we first understand the circumstances surrounding the case involving K and S. Because of the disclosures, the children’s exposure to domestic violence, and parent’s drug use, they were apprehended from their mother CW, in 2004. They remained in Society care until December 2005 when they were placed with SW.

[15] K remained with SW, while S was, because of behavioural issues, placed back in Society care in November 2006. S became a Crown ward. K stayed with SW, who was ultimately awarded custody.

[16] SW spoke about her family and explained how she gained custody of K. She has eight children, including K. CW was adopted by SW’s parents. After CW left home, SW maintained contact with her, attending at the hospital for S’s birth.

[17] At some point after K’s birth the Society intervened. SW was eager to assist. She then came to know Ms. McDonald, who supported the placement of both children with her. This continued for a while, but S proved to be too difficult. As indicated, S was ultimately removed from her care. K remained with SW, and after some initial challenges, has done well.

SW

[18] SW testified. She says K and S made five concerning utterances to her. First, while in the kitchen, and after being served ice cream, K said something to this effect – “that’s what it looks like when daddy pees on me”. SW interpreted this to be a reference to ice cream resembling semen.

[19] Second, en route to the Society office for an interview with the police and Society worker, and while still in the car in the parking lot, K said something to this effect “I don’t want to talk to them; all they want to do is talk about the crotch game and I don’t like the crotch game”. SW had heard about the ‘crotch game’ before from S. At the time of this disclosure K was upset about having to be interviewed. For some reason SW audio recorded this statement. I did not hear this recording. It was not tendered as evidence. I think this was provided to the Society and or police at the time, but I’m not entirely certain.

[20] Third, she overheard S say this to K – “stop telling them about the crotch game or daddy will go to jail”, to which K replied “no”. SW couldn’t recall what prompted S to say this.

[21] Fourth, several years later in she believes 2013, she had a chat with K. During the conversation, K inquired about her father and said it “wasn’t fair what happened” to her. The circumstances surrounding this statement are unclear, as SW also spoke of how, on this same day, K was upset and crying about how her close friend was moving, lamenting the fact she would no longer being able to see her. SW advised she didn’t follow up or attempt to clarify with K what exactly she thought was unfair.

[22] Fifth, at some point after the 2013 conversation, SW says K told her she “only remembered the laundry room” incident. No further context was provided. I have no idea to what this was referring.

K’s Current Circumstances

[23] K is now 15 years old and resides with SW. SW was adamant that K should not be called as a witness. She testified that K likely wouldn’t be able to recall the utterances, or the actual events she spoke of. SW said this: “K has come a long way in her healing and to pry it open would not be fair……she would be terrified to testify…..she doesn’t like talking to people….she is very quiet and she would be afraid with her dad sitting here”.

[24] She testified that while K is 15, she would appear as and talk like a ten or eleven-year-old. She agreed that while K would lie from time to time, it wasn’t unlike any other child and was typically about “silly” little things.

[25] I learned during SW’s cross-examination that K eventually came to call her husband, “daddy”, and used to, at times, have difficulty distinguishing events from people. She testified that K never seemed upset after phone calls with her father.

Timing of Statements

[26] It’s not clear when these utterances were made. The best evidence is the first three were made in close proximity to each other, sometime after December 7, 2005 (when Aston J. made an order concerning these two children), and before their apprehension in 2006. The 2005 order is significant as it granted the father unsupervised access. This is paragraph 4 of that order:

The father, DW, shall have access alternate Saturdays from 9:15am – 4:50pm, unsupervised except for the pick-up and drop off which shall take place at the Society premises or on some other basis acceptable to both the Society and SW. At the discretion of the Society, after consultation with SW, access may be extended to one overnight visit each month. With the consent of SW, the Society may arrange additional access when and if appropriate. The father’s access is conditional upon his refraining from the use or consumption of any illicit drug during access or in the preceding 24 hours. The father is also entitled to reasonable telephone access twice weekly.

Debbie McDonald

[27] Society employee Ms. McDonald testified. She is now a supervisor, but at the relevant time was a family service worker. She has been with the Society for 17 years, with experience in long term files, including kinship and adoption. She was involved with K and S from 2000 until 2005, first working voluntarily with their mother CW. She described the father as periodically being in the picture. The children were never placed in his care.

[28] Before Aston J.’s December 2005 order, the father’s access was supervised, and at the Society’s discretion. Ms. McDonald was tasked with exercising that discretion, and that respecting the overnight visits set out in para. 4 of Aston J.’s order. During the currency of that order, she doesn’t recall the father ever having unsupervised access, let alone overnights. She recalls his mother and sister supervising.

[29] Concerns about the father’s inappropriate behaviour first came to her attention in 2006, when she learned of what SW says K told her. During a conversation she personally had with K, and in response to her asking how the visits with dad were going, K said “bad”. Ms. McDonald testified that K went on to say “daddy made me play games I did not want to play” and “daddy…made me play the touching game”. When asked how that game was played K said, “daddy’s crotch touched my crotch two times”.

[30] K provided additional details. She told Ms. McDonald it occurred at her paternal grandmother’s home. She said she was upstairs in her room, when her father called her downstairs. She recalled not being happy about this as she was playing. She ignored him. At some point, he came upstairs and physically retrieved her. He brought her downstairs and sat with her on his lap. According to the account provided Ms. McDonald, the father then put his hands down her pants, over her underwear, and rubbed her “crotch”.

[31] She testified about a second statement. This described an incident at the father’s residence during an access visit. According to Ms. McDonald, K told her she was watching TV when her dad called her over to the couch. She proceeded to walk over and stand in front of him. She says he then put his hand in her pants, inside her underwear, and rubbed her “crotch”. She said dad “put his finger inside the hole where pee comes out”. She told Ms. McDonald it “hurt a lot” and that dad told her to not tell anyone. K was upset and crying as she recounted this story.

[32] Ms. McDonald says she reported this all to the police. A joint Society/LPS investigation ensued. The father was not charged but S and K never returned to the family home. The father has not seen these children since. She testified to informing the father his access had been terminated in or around March 2006.

Officer Glen Hadley

[33] LPS detective Glenn Hadley testified. In 2006, he investigated these allegations. At the time, he was a member of the Sexual Assault and Child Abuse section. As part of the investigation he seized K’s underwear, submitting it to the CFS for examination. While no determination on its source could be made, semen was located.

[34] He met with K on March 20, 2006. She was hesitant to speak, and made no disclosures. At the time of this interview he was aware of one of the disclosures made to SW.

[35] Officer Hadley met personally with SW on March 24, 2006, when she advised him of all K’s disclosures. He learned K had a urinary tract infection and intense redness in her vaginal region. SW told him about the father “touching K’s crotch with his hands”, and the “ice cream incident and her dad peeing on her”. He received a handwritten note from SW, dated March 23, 2006, which detailed these disclosures.

[36] In some respects, his testimony was at odds with Ms. McDonald’s. He doesn’t recall ever interviewing her. Strange, given she was one of the Society point people in the joint investigation. He has no recollection, or notes, of Ms. McDonald advising him of K’s disclosures. He didn’t recall her telling him of any conversation she had with K. When it was suggested to him the lack of notes, and absence of memory, necessarily meant Ms. M did not convey that information to him, he disagreed.

Law – Principled Approach to Hearsay

[37] The Society seeks to introduce, for the truth of its content, the statements made to both SW and Ms. McDonald. While hearsay, it argues the statements are necessary and reliable, and in accord with the principles set out by the Supreme Court in Khan v. HMQ [1990] 2 S.C.R.

[38] The first task is to determine relevance, and then whether they fit within an already established traditional exception. The statements are obviously relevant, and do not fit within an existing exception. Of course, the overarching evidentiary principle, at least in a criminal context, is even if evidence is reliable and necessary, if its prejudicial impact outweighs its probative value, the court has the discretion to exclude it. Because this is not a prosecution, and the father’s liberty is not at stake, this is less a concern, and in any case subordinate to the best interests of the child.

Necessity

[39] Is it necessary? The main attack is this. There is a lack of quality evidence speaking to K’s ability to provide this account herself. K is now a teenager. SW couldn’t say for certain whether K had forgotten these events, believing she might have, surmising only that it wouldn’t be good for her to recount them.

[40] The Society must establish, on a balance of probabilities, that this evidence is necessary. It seems to me that with no evidence on whether it can now be adduced from the source, the Society fails this part of the test.

[41] Do special considerations apply to a child declarant in a child protection proceeding? In this respect, Khan offers some helpful comments. In the context of a discussion about sex crimes against children, the evolution in approaches to children’s evidence in other countries, and to the question of whether evidentiary rules should be more liberally interpreted in such cases, McLachlin J. writes this:

These developments underline the need for increased flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statements made by children to others about sexual abuse. Insofar as they are tied to the exception to the hearsay rule of spontaneous declarations, however, they suffer from certain defects. There is no requirement that resort to the hearsay evidence be necessary. Even where the evidence of the child might easily be obtained without undue trauma, the Crown would be able to use hearsay evidence. Nor is there any requirement that the reliability of the evidence in the particular case be established; hence inherently unreliable evidence might be admitted. Finally, the rule being of an absolute “in or out” character, there is no means by which a trial judge could attach conditions on the reception of a particular statement which the judge might deem prudent in a particular case, as for example, the right to cross-examine the deponent referred to in Ares v. Venner. In addition to these objections, it can be argued that to extend the spontaneous declaration rule as far as these cases would extend it, is to deform it beyond recognition and is conceptually undesirable.

[42] McLachlin J., while stressing the need for some flexibility, cautions against being too lax. She notes two things; first, in some cases it is just not prudent to introduce and rely upon such evidence. Second, the party seeking to introduce it must at least turn their mind to whether the evidence can be obtained from the child. In our case I have but the scantest of information as to whether K could provide this evidence and be subjected to cross-examination. I am not certain she remembers the events, which would surely impact upon necessity. I don’t even know whether she remembers giving the accounts to either SW or Ms. McDonald.

[43] On the evidence before me, to find that necessity is established, would be to render necessity a pro forma determination. The mere fact the declarant is a child does not mean the necessity threshold is met. There must be more.

[44] First and foremost, children must be protected. We should be inclined to admit relevant and material evidence if it is only available in one form. But to allow its introduction as hearsay, it must be necessary, which means I must be satisfied, on a balance of probabilities, that it can’t be introduced through the maker of the statement. While not proof beyond a reasonable doubt, this is a high standard, and SW’s evidence does not reach that standard.

Reliability

[45] In the event I am wrong about necessity, I will briefly consider the issue of reliability. These statements are not reliable. First, I have the strange omission from the officer’s notes. Much of what Ms. McDonald says she advised the officer, is not contained in his duty book. Not only that, he doesn’t remember her telling him anything. While I don’t subscribe to the view that simply because something is not in an officer’s notes, necessarily means it didn’t happen, we must remember the context here. There was a joint criminal/child protection investigation being undertaken cooperatively between the Society and LPS. What she says she told the officer is the very substance of that investigation, and the precise account she now provides the court. It is inconceivable that he would, both, not remember, and not have included her information in his notes.

[46] I have no reason to doubt K said something to McDonald about her father. But the only meaningful way for the respondents to test the evidence in this case would have been to measure it against what the police investigator recorded.

[47] One could argue SW’s evidence should be viewed differently, as her account is recalled by both Ms. McDonald and the officer. In other words, the deficiencies in Ms. McDonald’s account aren’t present here. I, however, have two concerns. First, the proximity of the utterances to the events the child purportedly speaks of, is unclear. I have no way of determining whether they were spontaneous. While it’s true I can connect the dots so to speak, and piece together when K first went to live with SW, when that was in relation to Aston J.’s order, and when the children ceased seeing their father altogether, we are now twelve years removed the statements. Not to mention the fact I was told about an audio recording of one of the utterances, which the Society, for whatever reason, chose not to introduce. Short of hearing from K herself under oath, this would have been the next best thing. It would have been one way for the respondents to test a significant aspect of SW’s full account.

[48] I appreciate the distinction between threshold and ultimate reliability. The Society argues the lower threshold has been met, and suggests I should be more concerned with what weight should attach to the statements. I disagree. Ultimate reliability goes to weight; threshold reliability is to ensure the integrity of the trial process is protected. I must ask myself, can the opposing party sufficiently test the evidence, and would I, as the trier of fact, be sufficiently able to assess it? Threshold reliability is typically met when “sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about”; R. v. Woodward, 2009 MBCA 42. In our case, because the declarant is available, I should be more narrowly focussed on whether I will ever be able to sufficiently assess the various statements’ worth, which cannot be done without a full understanding of the declarant’s current ability to provide it herself. I accept this exercise should be more flexible as we are dealing with a child declarant, but there must still be compelling evidence that speaks to this.

[49] The Society relies upon Blishen J.’s comments in CAS Ottawa-Carleton v. L.L., [2001] O.J. No. 4587. In that case, the Society sought to admit statements made by a five-year-old to two social workers, two foster mothers, and a police officer who videotaped two interviews. It also sought to admit statements made by a two-year-old to his foster mother, and to an officer in a videotaped interview.

[50] Immediately evident are two distinguishing features. First, neither K nor S were toddlers when they made their statements. That sets it apart from the statement of a two-year-old. Second, some of the statements, from each child in L.L., were video recorded. This is important as, apart from proximity, spontaneity, and other indicia of reliability, the opposing party and court had the opportunity to view and listen to the declarant. I have had no such opportunity, even though there was an audio recording of one statement, and police attempts to obtain another. None of this is to suggest a recording is required to establish reliability, but in L.L. it certainly enhanced that court’s ability to assess the statements value.

[51] In fact, Blishen J. specifically references the video recorded interviews in addressing the declarant’s demeanour, commenting as follows at para. 14:

I consider the videotaped interviews as probative evidence upon which the court would be entitled to draw its own conclusion on the issue of necessity.

Approach to Assessing a Child’s Statement

[52] L.L. suggests I should engage in a contextual analysis when assessing the necessity of a child’s statement, and to specifically consider, amongst other things, the child’s age, emotional well-being, and level of understanding. At para. 10 Blishen J. writes this:

It is in my view that the nature of the evidence required on the issue of necessity should depend upon the age of the child, nature of the statements and the circumstances of the case. As stated by Madam Justice Jones in Catholic Children’s Aid Society of Metropolitan Toronto v. R.M., [1992] O.J. No. 1097 (Prov. Div.):

Prior to the admission of such evidence, some inquiry should be routinely undertaken on the issue of necessity as well as on the issue of reliability. The nature and extent of such inquiry on the issue of necessity would depend on the facts of each particular case and the court could consider, but not be limited to, a combination of the following issues, whether the counsel consent to the admission of the evidence, the age of the child, the emotional fragility of the child, the level of understanding of the child, with the understanding that the weight of the evidence to be presented in favor of invoking this hearsay exception would vary in reverse proportion to the age of the child, with a heavy onus to be satisfied if the child is over fourteen years of age and presumed to be capable of giving evidence. Otherwise, the court is being asked to act on less than the best evidence available.

[53] The respondent parents have not consented to the admission of this evidence. Little information was presented speaking to the child’s ability to testify. I don’t know if K remembers the events or even recalls making the statements. No evidence was proffered speaking to the harm testifying might cause, beyond the speculation of the custodial parent, whose primary goal is, understandably, to protect her child. Respecting age, K is a teenager, over the age of 14, and presumed to be capable of testifying. No evidence was presented sufficient to rebut the presumption of capacity.

[54] In drawing her conclusions on necessity and reliability, Blishen J. writes that “given the age of the children and their anxious, agitated behaviours, I find, with the consent of counsel for the mother, that both children would suffer emotional trauma if required to testify at trial”. As to reliability, she went on to conclude that the evidence presented had the “circumstantial guarantees of trustworthiness”.

Decision on Khan Application

[55] While the approach may be different, and while special considerations apply in a child protection proceeding (as opposed to a criminal prosecution), the mere fact the declarant is a child does not automatically lead to admission. I recognize that, on the threshold question, I need not be satisfied on each possible indicia of reliability; weaknesses in some areas can indeed be compensated by strengths elsewhere. But protection of this trial’s integrity requires that I dismiss the Society’s motion. The record before me does not allow for a proper assessment, or equip me to answer the ultimate question of whether these events occurred. It is not simply a question of weight. The hearsay evidence cannot be admitted for the truth of its content.

[56] The Society argues that subsequent events have made the statements more reliable, presumably referring to the phallometric testing results. While that has some merit, this fact in no way enhances the respondent’s ability to test the, at this point very dated, evidence.

[57] In the event I am wrong, and should I have concluded the threshold has been met, for the foregoing reasons I would not have given much, if any, weight to the statements.

TRIAL EVIDENCE

Dr. Dickey

[58] Dr. Robert Dickey conducted the father’s psychological assessment. He prepared a report, dated March 6, 2013. Dr. Dickey did not testify. On consent his report was filed. No party requested he be present for cross-examination. There was no direct attack upon his conclusions.

[59] The father agreed to the assessment, and consented to the Society’s referral to CAMH. The goal was to assess the risk he poses to children. This, of course, is relevant in our case given the allegations concerning K.

[60] Dr. Dickey had access to a report outlining Society involvement with the father, and a parenting capacity assessment authored by Dr. L. Sas in 2007. The testing consisted of a completed referral form respecting sexual behaviours; a personal interview; and testing in a phallometric laboratory.

[61] The report detailed the father’s psychiatric history. While he denied suffering from a mental illness, Dr. Dickey references Dr. Sas’s report which says he had before experienced “suicidal and homicidal ruminations”. He has never been admitted to a psychiatric facility.

[62] In his personal interview, the father described a good working relationship with the Society. He promised to follow its instructions, and cooperate with any level of supervision. He described himself as heterosexual with a sexual preference for mature adult females. He denied having a sexual preference for minors.

[63] The phallometric testing was to measure the father’s pattern of sexual responses to different stimuli. It was designed to be biased in his favour so as to avoid improper labelling, which would obviously be devastating.

[64] The results led Dr. Dickey to conclude the father suffers from pedohebephilia, which is a sexual preference for achieving arousal and gratification through the “fantasy of or interaction with prepubescent or early pubescent children”. This is a lifelong condition with no known cure or treatment. He writes this at para. 4, at page 5, of his report:

DW suffers from Pedohebephilia. It is my position that such individuals should never have unsupervised access to or care of children. In such an instance, it is extremely likely that such individuals who suffer from Pedohebephilia, if given intimate care of children, would engage in unwanted sexual behaviours at a frequency that would significantly supersede any such behaviours which came to the attention of the criminal justice system.

[65] The report includes a recommendation for sexological treatment, with a view to assist him in identifying his thoughts and urges, and to gain a better awareness of the risks and his specific triggers.

Jennifer Holt

[66] Jennifer Holt testified. She was qualified as an expert in risk assessment for sexually offending adult males, and to treatment options.

[67] She was engaged at the mother’s request. Her focus was on whether the father could be left unattended with his children. She concluded he could not.

[68] During her interviews, she learned of a safety plan the father created while involved in the Changing Ways program, which is specifically designed to address violence against women and children. Changing Ways does not differentiate between sexual and non-sexual violence; it broadly looks at abuse in all its forms, and explores the issues of triggers and how to avoid them.

[69] Dr. Dickey’s report obviously informed Ms. Holt’s assessment. Most concerning to her was the fact the father did not agree with the diagnosis and did not believe there was an issue to address. While she did not interview the mother, she became aware through the father that she thought the diagnosis was “ridiculous”. This troubled Ms. Holt, especially if the proposed plan was to entrust the mother as supervisor. In her view, an effective plan must include a primary family support network that believes there is a risk. The mother doesn’t accept that his interaction with children needs to be monitored.

[70] The father denied having a deviant sexual interest. He expressed to Ms. Holt his strong belief the phallometric testing was flawed.

Risk Determination

[71] No one should admit to something they aren’t guilty of, or accept being a sexual deviant if in fact they aren’t. The difficultly, however, is the father, who was represented by counsel, did not in any meaningful way challenge Dr. Dickey’s findings. He did not ask he be produced for cross-examination, and consented to the report’s admission. With that, I am left with little choice but to accept the findings and to conclude definitively that he suffers from pedohebephilia.

[72] That being the case, and given the father’s current position, Ms. Holt’s opinion becomes somewhat irrelevant. Her assessment is premised on the accuracy of Dr. Dickey’s findings. She was in no position to dispute Dr. Dickey, despite counsel’s back door attempt to cast doubt on him, through her. She offered recommendations and proposed treatment options, all of which would be extremely helpful if the father acknowledged his diagnosis.

[73] Much of the recommended counselling, and Ms. Holt’s suggested ‘action plan’, could only work if there were an underlying set of facts we could all agree on. Otherwise, the temptation is too great the respondents will merely pay lip service to a plan, deviating from it when no one is looking.

[74] Ms. Holt’s opinion is the father should never be left alone with children. He requires constant ‘eyeball’ supervision. Any supervisor, including the mother, must have the father and child in their direct line of sight and within earshot.

[75] It is interesting that, under the existing temporary order, which grants the Society wide latitude and discretion, it has seen fit to allow the father in the home, subject to the mother’s supervision, so long as he doesn’t spend the night, with no reliable mechanism to ensure direct and constant “eyes and ears” monitoring. The mother must, on occasion, use the washroom, prepare meals, and engage in other household tasks without every other family member being in her immediate presence. The Society surely realizes this. It received Dr. Dickey’s report several years ago, and has presumably known of Ms. Holt’s views for some time. And notwithstanding that, it has been content with this regime with the only safeguard to date being the prospect of an unannounced Society worker visit.

[76] Ms. Holt was quite clear in that this Society-approved arrangement is insufficient and does not address her concerns. In her view, unless and until the mother fully appreciates the risks, and accepts the father’s issues, she cannot be trusted to effectively supervise.

Society Worker

[77] Society worker Maurice Dayan testified. He has been on this file since 2013. His practice is to visit the mother’s home approximately once per month. He describes these as “mostly drop in”, with an occasional scheduled visit. He has never attended to find the father alone with the children.

[78] He detailed the family’s plan, as explained to him by the mother. They hope to reunite, with the father living in the home full-time. As the mother works close to full-time hours at a grocery store, she wants him there so he can care for the child while she’s gone. According to Mr. Dayan, she is adamant the father doesn’t require supervision. She is quite skeptical of Dr. Dickey’s findings. She doesn’t believe the allegations made by the SW and Ms. McDonald.

[79] Mr. Dayan explained the Society’s position. While he’s concerned about the mother’s incurious loyalty to the father, he has none respecting her ability to care for her children. He is content XR remain in her care, so long as there are terms that focus on the father’s access. To the most contentious issue, the father’s residence, he strongly believes the current order should continue and that he should not be able to return. At least not now. In his view, the father should not be in a caregiving role.

[80] After hearing from Mr. Dayan, it still wasn’t entirely clear why, in one breath, the Society commends Dr. Dickey and Ms. Holt’s evidence to me - supporting a requirement for direct supervision at all times - and in another, despite concerns over the mother’s support of the father and her skepticism of the very evidence it accepts, be content with him in the home, under her watch. In other words, the Society seems to accept that the mother has been directly supervising all the father’s contact, while simultaneously accepting, and commending to me, outside recommendations that suggest the current arrangement is insufficient.

Evidence in Support of Respondent Parents

Mother & Sister

[81] DW’s mother and sister testified. Their goal was clearly to show the allegations made by K could not possibly be true. They each testified that during the relevant time - in and around late 2005 and early 2006 - either or both were providing constant and direct supervision of all his visits with K and S.

[82] These were well meaning witnesses. Each loves the father and wants what’s best for him. They support him, and want him to live with his family and assist in raising his child. However, after thorough cross examinations, it became abundantly clear that each was exaggerating the level of supervision they provided. They couldn’t remember some significant details, including why the father’s access needed to be supervised before the children’s allegations came to light. They also couldn’t explain why they continued supervising his access, even after the December 2005 order, which indicated supervision was no longer required.

[83] I accept they were at times supervising the father’s access. At no point, however, were they providing direct eye ball supervision. At the time, they would have had no knowledge of the allegations that ultimately led to his access being terminated. A believable story only if they were supervising the access after the allegations came to light. They weren’t.

Parents

[84] Both parents testified.

[85] The father detailed his history with the Society. He spoke of his visits with K and S. He testified he had never been alone with K, even during periods when his visits weren’t required to be supervised. A doubtful claim, and clearly an attempt to, as his mother and sister had, establish there was never an opportunity to sexually assault her. He denied ever inappropriately touching a child.

[86] He explained why he agreed to phallometric testing, when there was no way to compel it. He wanted to clear his name and believed this was the best way to accomplish that. He doesn’t accept the results. He argues the methodology was flawed. It is one thing to question the results, and if he truly believes he doesn’t have a sexual deviance, he must. But in the absence of an attack upon Dr. Dickey, and or an expert who could dispute his findings, I am in no position to impugn the testing procedure or question the results.

[87] Throughout most of the trial, I was led to believe the father takes a hard position that disputes a protection finding, and need for any Society involvement. His testimony, however, was quite different. He extolled his cooperation with the Society and compliance with court orders. He promised to do whatever it takes to be able to live with his family.

[88] While not in his pleadings, or plan of care, he essentially presented a plan that would not leave him alone with the child. He proposed his sister and mother as supervisors and agreed to “hammer out a deal with the Society respecting rules and regulations”. He summed up his initial motivation to oppose the Society’s application, testifying that:

The whole point of this proceeding is for me to prove that I can and need to be a father and be a part of my wife and children’s lives. But I will follow whatever the courts decide. This is probably my last stand. This is it for me and this is important for me and my family. It’s the only thing I ever wanted in my life was to have a wife, kids and a house, and it’s a tragedy that I can’t have that.

[89] On cross-examination, he didn’t dispute K said those things to SW and Ms. McDonald. He believes she was sexually assaulted by someone. Just not him.

[90] While he presented well and came across as intelligent, his testimony was prone to embellishment, and in some cases worse. For instance, it was pure fiction to suggest he was never alone with K. Beyond it not having a ring of truth, especially when we know he fought for, and achieved for a period, unsupervised access, on cross examination he acknowledged having told the officer, back in 2006, that he may have inadvertently touched K’s vagina while cleaning her.

[91] He lied at yet another point. He testified that, before commencing his unsupervised access, and in advance of the allegations coming to light, Ms. McDonald told him he “should be careful, as you don’t want someone to make an allegation against you that is not true”. Ms. McDonald testified in reply, denying any such conversation took place. I accept her testimony. This was never said. He advanced this story to bolster his claim the sexual assault allegations were fabricated, going one step further suggesting the Society, and specifically Ms. McDonald, shared this concern and warned him it would happen.

[92] The mother offered very little in her testimony. She wasn’t as amenable as the father, and didn’t resile from her pleaded position, which is XR isn’t in need of protection and the Society has no business in her life. When pressed, she relented somewhat indicating a willingness to follow whatever order is imposed. However, the main point she wanted to make was the father posed no risk to children whatsoever. Hers was a wholesale rejection of Dr. Dickey’s assessment.

[93] To her credit, and this became clear during Mr. Dayan’s evidence, she has complied with the temporary terms that have now been in place for several years. While she has her reservations about the need for intervention, there is no evidence to suggest she has left the father alone with the child. Furthermore, but for her support of the father, the Society has no concerns respecting her ability to love and care for all her children. She is a good mother.

PROTECTION FINDING

[94] Is XR in need of protection? On this question, I need only find a risk of harm. It doesn’t have to be a big risk. It can be a small one. I am not to quantify it. The measure of the risk is relevant to disposition, but not to the finding.

[95] Is there a risk XR is likely to suffer physical harm inflicted by his mother or caused by her failure to care for, provide for, supervise or protect him (from the father)? Is there a risk he is likely to be sexually molested or exploited (by the father), in circumstances where the mother knows, or should know of, the possibility of sexual molestation or exploitation, and fails to protect him?

[96] In my view, XR is a child in need of protection.

[97] The mother is aware of Dr. Dickey’s report. She knows its content, the findings, and recommendations. In the circumstances, I have little choice but to accept Dr. Dickey’s conclusions. The father suffers from pedohebephilia. He has a sexual preference for prepubescent and pubescent children.

[98] The parties consented to his report being filed. The respondents did not seek to cross-examine Dr. Dickey. No competing expert evidence was presented. That is not to say my task is to simply rubber stamp an expert’s findings, nor am I to allow an expert to determine the ultimate issue, but there is no reason to reject his conclusions. With that, and in light of the mother’s testimony, I must make the finding.

[99] If Dr. Dickey’s report weren’t enough, notwithstanding my ruling on the Society’s Khan Application, I can, and have, considered the fact of K’s disclosures, and circumstances surrounding that investigation (i.e. location of semen on K’s underwear). Short of a finding the father actually sexually assaulted her, the mere existence of that family dynamic, and K’s apparent stabilization after contact with her father ceased, is compelling evidence on this issue.

[100] I come to this conclusion cognizant of the seeming inconsistency between the Society’s current position, and the use of its discretion pending trial. I address this earlier, but what it has been allowing to occur in the home, is at odds with the position it now takes. I am being asked to conclude the mother puts the child at risk by virtue of her unbreakable loyalty to the father, but the reality is the Society now, and for years, has accepted that she sufficiently protects the child, and at all times monitors his access, with few safeguards.

[101] Society counsel anticipated my concerns, highlighting two things. First, that the mother has, to date, complied with court orders. And second, that her current position would have me not make an order and eliminate Society involvement altogether. He argues that without a court order, we cannot expect the mother to be as vigilant. Until she recognizes the risk, and the father takes steps to better himself, the threat of court sanction and prospect of unannounced Society access to the home, is essential.

STATUTORY FINDINGS

[102] There is no dispute concerning the statutory findings pursuant to s. 47(2) of the CFSA. The child’s birthdate and parentage are agreed upon. He is not Catholic. He does not have, nor is he entitled to, Native status.

DISPOSITION

[103] That leaves me to consider disposition. Where a child is found in need of protection, s. 57 governs. In our case, I am only considering what terms should be included in a supervision order. The Society seeks a six-month order, with the child placed in the mother’s care. At various points in the trial, reference was made to the Society’s request for a twelve-month order. However, the Society’s application, found at tab 1 of the Amended Amended Trial Record, indicates that it in fact seeks a six-month order. There is no reason to make a more intrusive order than that which is pleaded, but I do believe a twelve-month order is necessary. In the circumstances, six-months is insufficient.

[104] I am satisfied the Society has fulfilled its obligations to assist the family, and has in good faith attempted to avoid the litigation getting this far. This is evident in the significant trust it has placed in the mother, and in her commitment to abide by court orders. As I have pointed out, this is distinct from its faith in her commitment to do this were there not a court order.

[105] Given the father’s denials, mother’s loyalty, and unwillingness on either’s part to acknowledge and understand the risks, there was no less intrusive option available to the Society. This lack of recognition has impacted everything. It has limited the Society’s ability to make necessary referrals to counsellors and community based service providers. It has made all efforts to date an exercise in stop gap measures, with no progress on the ultimate goal of safely reuniting the family. The risk concerns have in no way been abated. I am worried about the collision that lies ahead should this continue and the parents don’t acknowledge the issues raised by Dr. Dickey. Court attendances and Society intervention can’t go on indefinitely.

[106] Without a dramatic shift in the parents’ position, or some new compelling evidence that speaks to the father’s risk to sexually offend, the issues present here will be precisely the same at a status review. This is the primary reason I believe a twelve-month order is necessary. Six months is simply not enough time for the required sea change in thought and approach; a required first step for the mother to prove she can protect her child without Society intervention.

[107] Whatever the disposition, it must be in the child’s best interests. Section 37(3) sets out the factors to consider. The non-exhaustive list includes:

• the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
• the child’s physical, mental and emotional level of development;
• the child’s cultural background;
• the religious faith, if any, in which the child is being raised;
• the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
• the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community;
• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
• the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent;
• the child’s views and wishes, if they can be reasonably ascertained;
• the effects on the child of delay in the disposition of the case;
• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent;
• the degree of risk, if any, that justified the finding that the child is in need of protection; and
• any other relevant circumstance.

[108] Guided by these factors, not all of which are relevant in our case, what terms are appropriate?

[109] The terms set out in Henderson J.’s February 3, 2011 order should continue. Para. 1, subparas. (a) – (k), and (n) – (p) shall be incorporated into my final order. Some minor variations are required. For instance, no reference should be made to the respondent AM or to either of his children. The only subject child is XR.

[110] Other modest changes are necessary, and will be reflected in the endorsement detailed below.

ORDER

[111] Final order to issue as follows:

(a) The child XR DOB **, 2011 is in need of protection pursuant to ss. 37(2)(b)(i) and 37(2)(d) of the CFSA.

(b) The child is not Catholic and is not an Indian or Native as defined.

(c) The child is placed with the mother ARM, subject to the supervision of the London-Middlesex Children’s Aid Society for twelve months, on these terms:

• the mother shall allow access, on both a scheduled and unscheduled basis, to the home and cooperate with a worker from the Society as frequently and for as long as deemed necessary by the Society;
• the parents, ARM and DW, shall attend and participate in all scheduled meetings with a worker from the Society, as requested;
• The mother shall allow a Society worker to have independent access to the child;
• The mother shall not allow the father to reside in or attend at the home with the child, or at any time the child could reasonably be expected to be there, without the prior approval of the Society;
• The father shall not reside in or attend at the home with the child, or at any time the child could reasonably be expected to be there, without the prior approval of the Society;
• The mother shall not allow the father to have access to the child except as authorized and upon terms specified by the Society;
• The father shall have no access to the child except as authorized and upon terms specified by the Society;
• The mother shall ensure the father does not change or bathe the child;
• The father shall refrain from either changing or bathing the child;
• The parents shall sign all necessary consents for the release of information to and from the Society as deemed necessary by the Society;
• The parents shall inform the Society of any change of address and/or phone number, prior to such change occurring;
• The mother shall advise the Society of the full names of any adult spending significant time in the home or residing overnight in the home; and
• Both the mother and father shall participate in any counselling, programs, or services as recommended by the Society, and shall comply with all recommendations arising therefrom. Respecting the father, this includes the type of counselling and treatments recommended by Dr. Dickey and Ms. Holt in their reports.

(d) The father shall have reasonable access to the child, such access to be supervised by the Society, or its delegate. No one can supervise the father’s access unless that person is approved of, in advance, by the Society.

(e) Should the Society, in exercising its discretion, decide that the father can stay overnight in the family home, or reside there full-time, it must consider, as a condition, the installation of an alarm on the child’s bedroom door that would alert the mother to anyone entering that room during the night.

[112] I make no order as to costs.

“Justice J. C. George” Justice J.C. George

Released: May 19, 2017