Court File and Parties

Court File No.: FC-19-1222 Date: 2020/04/22 Superior Court of Justice – Ontario

Re: J.D., Applicant And: N.D., Respondent

Before: Mackinnon J.

Counsel: Manraj Grewal, for the Applicant Alexei Durgali, for the Respondent

Heard: April 8, 2020

Endorsement

[1] This is an urgent motion brought by the applicant mother during the COVID-19 public health crisis. She seeks to reduce the respondent father’s parenting time with their two daughters who are four and six years of age. Specifically, she proposes that the father’s overnight time should be eliminated and that he should have daytime visits only, consisting of four hours on Tuesdays and Thursdays, and four hours each alternate Saturday and Sunday. The father opposes the motion.

[2] Two orders have been made to date regarding the father’s parenting time. The first order, dated July 30, 2019, mirrors the terms requested by the mother now. The order was made in response to an urgent motion brought by the father for access. The threshold for urgency was not met, and the order made was in the terms of the access the mother was proposing. The second order was made on November 21, 2019 as a temporary without prejudice order continuing the four-hour visits on Tuesdays and Thursdays and changing the alternate Saturday and Sunday visits to alternate weekends from Saturday at 10 a.m. to Sunday at 5 p.m., commencing November 30.

[3] Prior to the COVID-19 crisis the father had a pending motion before the court seeking to increase his parenting time. That motion was opposed by the mother, who wanted the November order to remain in place until the completion of a parenting assessment scheduled to commence in June. The father’s motion would have been heard on April 2 but for the suspension of regular sittings of the court in response to the COVD-19 crisis.

[4] A number of evidentiary issues pertaining to the father’s motion were argued on February 27, 2020. My ruling is located at 2020 ONSC 1674. At that time two documents were marked as exhibits as evidence for consideration at the upcoming motion. These exhibits consisted of a letter from the children’s physician describing what the children had told her and notes made by a Children’s Aid social worker of her investigation into the report made by the doctor.

[5] At the conclusion of the February 27 hearing, I directed each party to deliver an affidavit addressing the matters raised by these two exhibits and endorsed that each counsel would be provided up to 30 minutes to cross-examine the other party at the return of the father’s motion. As already noted, that motion did not proceed but the mother did obtain permission to proceed on the motion that is now before me.

[6] The mother says that the children have made numerous disclosures to her following the commencement of overnight access that show they are being exposed to inappropriate sexual content by the father. While it is agreed that neither child has been touched inappropriately or asked to touch anyone inappropriately, the mother is very concerned that these very young children are making the statements at all, and she submits the father may be grooming them for actual sexual impropriety.

[7] The father denies all of the allegations. He says he has not had any discussions with any sexual content with the children. He relies on the CAS investigation which did not verify the allegations. His position is that the mother has coached the children and / or is embellishing anything they may have said solely to achieve her goal which he says has always been to reduce and limit his contact with them.

The Applicant’s Affidavit

[8] The applicant attached a letter from her therapist, Dr. Meier, to her affidavit. The letter is dated March 9, 2020 and was sent to the CAS pursuant to his duty to report a likely risk of sexual abuse under the Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am. Dr. Meier writes that if the facts recorded in his letter are correct then he believes there is a potential risk the children will be sexually abused by their father. He recites the information he received from the applicant as to statements made to her by the children. He gives his opinion and reasons why he believes that the CAS investigation was incomplete, and he recommends steps to be taken to complete the investigation.

[9] The issue here is whether Dr. Meier’s letter to the CAS is admissible as an exhibit to the mother’s affidavit in support of the position she takes on this motion. In my view it is not. Even if his opinion had been deposed in affidavit form its evidentiary value would be as a litigation opinion. Dr. Meier has not and could not meet the necessary requirements to be qualified as an independent litigation expert in this case. He has been the mother’s therapist since April 2019. He has already written a letter dated June 18, 2019 which was relied upon by the mother in this case and provided his opinion that the children should live with her and not have overnight access with their father. Nor would his letter be admissible as the opinion of a participant expert. Its contents are well beyond his participant scope as the mother’s therapist. His opinion about her credibility is completely inadmissible. Accordingly, I have not considered Dr. Meier’s letter in relation to the issues raised in this motion.

[10] The mother deposes that the children were never privy to or exposed to sexual conduct or communication under her care. She says their behaviour started to change after the second overnight visit with their father. In brief, she says that on December 15, 2019 the four-year-old E. said she had a bad weekend at her father’s. The mother asked if everything was alright. E. replied she is not allowed to tell her mother, her teachers or Denyse (the CAS worker) what happens at her father’s home or else the sleepovers would stop. Over the Christmas holidays, the mother says E. sang the “penis song”. On February 6, the six-year-old O. was reticent to change into her pajamas. When she did, her mother observed a very red vagina that O. said was very sore. On February 9 in the bath, E. sang the penis song again. O. said their father sang this song in the living room. E. made other statements saying her father kisses his penis and says he does not know what to do with it.

[11] On February 13 on the way home from an evening access exchange, E. said her dad wants to touch his penis to her bum and he wants to eat her vagina. O. said daddy gives his penis a bye bye kiss and it grew a lot. Other disclosures were set out by the mother as occurring later in February and March which included reference to penis boogers, the smell of daddy’s penis (yucky), and giddy response to words appearing in the children’s homework (pussy and coq).

[12] The applicant mother took the children to their physician immediately on February 13. The physician phoned a report to the CAS. The CAS note sets out that the physician reported that E. had told the doctor that her dad rubbed his penis, squeezed it and it scares her; that E. also told the doctor that she is scared he might touch her bum with his penis. The CAS note sets out the doctor saying that E. also said to the doctor that dad wants to kiss his own penis and dad wants to chop off his penis. E. told her doctor she is happy at her mom’s and kind of scared at dad’s but ok. O. was described by the physician as quieter and as telling her that dad asked them to keep a secret. O. did not say what the secret was. O. confirmed it was dad who taught E. the penis song.

[13] The physician also provided the letter dated February 18, 2020. The letter confirms she spoke to both children on February 13, and what they said to her. The physician understood that the CAS felt comfortable that the girls had seen their father passing urine. The doctor expressed ongoing concerns in that it is very unusual for a four year old to talk about being scared of their dad’s penis or to talk about him rubbing and squeezing it.

The CAS Investigation

[14] The CAS investigation took place on February 14, 2020 in response to the doctor’s report. The CAS concluded that the allegations were not verified. The father was told to make sure the children were not exposed to adult genitals and to discuss privacy rules with them around using the bathroom.

[15] It is not clear from the CAS notes whether the social worker who conducted the investigation actually spoke to the children’s doctor. Her notes state that “the Society” received a call from the doctor. Her reporting note to the mother says, “Following the report received by the society, I had an opportunity to meet with your children and discuss the issues with the father.”

[16] On the other hand, in her session with E. the social worker does tell her that “her doctor told me” about seeing E. yesterday. She also says in the note of her telephone conversation with the father that after she received the call from the children’s doctor, she went to visit the children at school.

[17] Either way, the file note outlines what the doctor said but is not reflective of any questions and answers between the social worker and the doctor. There is no mention of the doctor being asked whether the mother was present for her interview with the children, whether she saw the children together or separately, or for her impressions of the children in terms of whether they appeared coached or spontaneous. These would all have been appropriate questions to ask the doctor.

[18] The social worker interviewed each child independently at the daycare attached to their school.

[19] After appropriate introductory remarks the worker asked E. how her mom is. E. said right away, “daddy kisses his penis, squeezes it and pees in his mouth.” E. did not know when this happened. She laughed. The worker asked her how she knows daddy does this. E. continued to laugh and then said, “mama told me to tell you that daddy teaches me the penis song.” The worker asked her what it was. E. started to sing, laughing and singing, “daddy eats 1 penis, daddy eats 2 penis, daddy eats 10 penis and the penis falls down, daddy puts jam on his penis cut the penis off and the penis falls down.” She was laughing harder and the worker asked her why. E. said, “because it is silly”. And later, “it is funny”.

[20] E. could not say when she had learned the penis song. E. also said she had told no one but the social worker. When asked who she had seen the day before besides her father, E. did not seem to remember. She said no one has told her to not say anything to anyone. She said her mom had told her to tell the social worker about the penis song. She said no one had ever touched her private parts. Nor had she seen anyone touching someone’s private parts. E. did say, “mama asked, does daddy touch your vagina and I said no.” The worker then told her she had spoken to her doctor who said she had seen her the day before. E. said yes. She was asked if she knows who her doctor is, and she said, “I don’t know.” The worker asked her what they spoke about. E. said, “the penis song” but when asked could not remember anything else. In response to other questions E. said she is ok visiting both houses and isn’t scared about something.

[21] The social worker did not ask E. about the other specific statements she had made to the doctor. She did not ask her whether she knew what a penis was, or whether she had seen a penis, or whether she had ever seen her father’s penis.

[22] The social worker next met privately with O. After appropriate introductory remarks, O. volunteered that she knew why the social worker came to see her: because they told the doctor about the penis song. She said E. told her, O. about the song. When asked if she could sing it, she sang, “penis penis comes from the air”, and said that is all she knows. O. said E. told her that dad had taught her the song. O. did not remember when E. told her about the song or when she first heard it. Maybe yesterday, she said. After a few other questions she was asked again to tell about the penis song. She said, laughing, “E. told me she saw daddy in the bathroom, he gives bye bye kisses to his penis so it can grow.” I asked her to repeat and she repeated the same thing. O. answered that she knows what a penis is and hasn’t seen one. When asked again what E. told her and when, O. said maybe it was Wednesday or Tuesday she can’t remember. She said that E. saw daddy, he gives bye bye kisses to his penis and he washes his lips. O. then laughed and when asked what’s funny she continued laughing.

[23] O. confirmed she has no secrets, no one has told her to tell the worker something or to not tell her something, she feels good about seeing mom and dad but added she used to be scared of dad when he yelled at mom but that doesn’t happen anymore. She said no one has touched her private parts.

[24] The social worker did not meet again with E. to ask her about the statements O. attributed to her about seeing her father giving bye bye kisses to his penis, so the penis can grow, and the ensuing lip washing. She returned to the Society and reported to her supervisor and to the Sexual Abuse and Child Abuse (SACA) section of the Ottawa Police. Since the children were clear that no one touched them or asked them to touch them, there was no criminal activity. The social worker was asked to speak to the father to ask him what is going on.

[25] The social worker did not attend to speak in person with the father. She telephoned him. He had the impression as stated twice in his cross-examination that the CAS did not contact him until after their investigation was complete.

[26] In their telephone conversation the social worker asked the father if he had a conversation with the children about private parts. He said yesterday E. said the word penis a couple of times, and he told her it was inappropriate. The social worker told him about the penis song and that the children say he taught it to them. He said he never did. The father questioned the social worker about how this information was found. She told him, it had been stated by the children to their mother, to their doctor and to herself. He became upset and said he felt this is something the applicant is doing to use against him in court. He said the applicant and her aunt had made false allegations of sexual assault in the past. The father said he was very upset that his kids are being used; the case is coming to court because the applicant does not want him to see the children.

[27] The father did not volunteer any other explanation. The social worker asked him if the children had seen him naked. He answered that they sometimes follow him to the bathroom and when he urinates, they giggle. She asked if he had talked to them about privacy and he said he guesses he needs to.

[28] The worker then asked him about E. stating she had seen him squeezing his penis and rubbing it and peeing in his mouth. He said he didn’t understand what she could mean. He was not asked about other statements E. had made.

[29] The social worker did not check into the father’s statement that the case was going to court because the applicant did not want him to see the kids. That was not in fact the mother’s position. She wanted to keep his parenting time as provided in the order of November 21 pending completion of the assessment scheduled to commence in June 2020. The social worker did not seek any verification that the mother and her aunt had previously made unfounded allegations of sexual assault against him. This allegation does not appear in the father ’s affidavit filed in opposition to this motion.

[30] The social worker appears to have concluded that the children had seen their father urinating. This is referred to as her conclusion in the doctor’s letter and in an email the mother wrote later that day to the social worker. But she did not reattend to ask the children if they had in fact seen this.

[31] After her telephone call to the father, the social worker emailed the mother and wrote: “Following the report received by the society I had an opportunity to meet with your children and to discuss the issues with the father. The society has not verified these allegations.” In a follow up email, sent to the social worker two hours later, the mother wrote, “When you spoke with me, it appeared that you had already made your mind up that there is nothing wrong with what [he] is doing….” The mother may reasonably have expected that she too would be interviewed as part of the investigation. Her email goes on to set out a detailed time line of all the disclosures made to her by the children, starting in mid-December 2019, up to and including that very morning.

[32] There are some references in the CAS notes that may be taken as critical of the mother. The worker noted that the mother left her a voice message after she had told her she was going to see the children, asking the social worker to ask more questions and to try to prompt O. if she did not say anything. Then the worker referred to a voice mail from the doctor saying the mother had just called her and was worried about the children sleeping over at their father’s house. The social worker described the mother as being very upset and yelling at her when she called to tell her the allegations were not verified, including saying the worker was not doing her job to protect the children. The social worker did include in her notes the new information as to what E. had told her mother that morning. The worker advised the mother that the children had not said these things to her or to the doctor. However, she would pass them on to her supervisor and to the police.

[33] That was done but the additional information provided was not taken up with the children or the father. Nothing further was done by way of the investigation.

[34] The social worker does not comment on this in her notes, but some of the children’s statements may be indicative of some coaching or influence by the mother. As soon as E. was asked how her mother was, she said, “daddy kisses his penis, squeezes it and pees in his mouth.” She also said, “mama told me to tell you daddy teaches me the penis song.” And she volunteered that her mother had asked her if her dad had touched her vagina. At the same time both children made statements that may be indicative they were not influenced, including that no one had touched them inappropriately, both said they felt ok about visiting their father’s house, E. told her mother that her dad had not touched her vagina, and O. had not been told by anyone what to say.

[35] There had also been an earlier occasion on November 15, 2019 when the social worker attended the mother’s house. The children were there, having a snack. The social worker was asking them questions such as how your day was, what did you do. Then E. said, my daddy told me that he wants my mommy dead so he can have us alone. O. said, no he didn’t say that. The worker did pursue further questions with E. receiving only vague answers such as she wasn’t sure where he had said this, and she didn’t know what he told her.

[36] The mother was present and interjected that E. told her this yesterday and that she had recorded it. The mother then said to E. “tell her everything”, and to the social worker, “He wants my kids to kill me.”

[37] Later E. said again, “dad wants to kill mom.” The social worker asked her how she knew this, and she E. replied, “he wants to have us, and mom cannot have us.” O. said again this didn’t happen.

[38] The social worker had a separate conversation with the mother while the children played. She asked her if she had reported this to the police. The mother had not. The social worker told her she should report threats or safety issues to the police. There is no indication in the motion record of any follow up with the father. I infer the social worker did not believe that he had made the statement. For his part, the father submits it was not coincidental that the allegation was made shortly before a scheduled court date of November 21, implying it was made with intent to delay or influence the outcome.

[39] There is no disagreement with the finding by the CAS that the children had not been sexually abused and that the father had not invited them to touch him sexually. That was not what had been reported to the CAS or what they had been asked to investigate. The investigation was into statements with highly inappropriate sexual content allegedly made by the father to the children.

[40] The investigation was lacking in a number of ways. Potentially important information that could have cast light upon the independence of what the children said to the doctor was not sought or obtained from her. The father was interviewed by telephone with no opportunity to observe him or assess his demeanor. The discussion was such that he had the impression the investigation was complete before he was contacted. There was no follow up of two allegations he made against the mother that lent support to his theory that she was fabricating. He was not confronted with everything the children had said to the doctor and to the social worker. The concept developed that the children had seen him urinating, yet the children were not asked if this was true.

[41] There are valid reasons why statements made by children to a parent, particularly in a high conflict situation, ought not to be taken as proof of their contents. That said the mother may reasonably have expected that the social worker would seek information from her as part of the investigation, and the failure to do so does provide an explanation for the email she sent shortly after hearing the investigation was complete.

[42] The issue here is the alarming statements and why they are being said. Each party submitted a possible explanation. The father’s position is that the mother has fabricated a narrative to paint him as a sexual deviant in furtherance of her goal to reduce his contact with their children. The mother’s position is that the father was engaging the children in very inappropriate sexual content which may constitute grooming for later sexual contact. Neither circumstance would be tolerable. Either way the children would be at risk of serious harm. The CAS investigation is not determinative of this issue.

[43] The CAS investigation may have been made more difficult by the appearance that E. had been prepared for the interview by her mother. There is a difference between reminding a child to ask her doctor about her sore throat and her ear ache, when treatment is being sought for both, and an investigation. In an investigative situation such as this one the point is for a trained and neutral investigator to have the opportunity to elicit information directly from the child independently of parental influence and according to recognized, standard investigative techniques.

[44] Some of what the children said could be explained by seeing their father in the bathroom, for example, the language of raining penises. Other statements made to the doctor and to the CAS worker are not. I refer to the bye bye kisses, the growing penis, peeing in his mouth and washing his lips. Another factor here which distinguished it from the November 21 complaint, is that O. confirmed what E. was saying. In November O. was quick to say dad hadn’t said what E. was saying he had said.

[45] For these reasons I will refer to information elicited by the CAS in its investigation but put little weight on its finding that the allegations were not verified.

The Applicant’s Affidavit, continued

[46] The mother’s affidavit describes the continuing disclosures she says the children made to her subsequent to their visit to the doctor on February 13, 2020, summarized here by date:

• February 14 E. on route to school: “Daddy puts his finger in his penis to get the slimy boogers out.”
• February 17 at bedtime: E. says she prefers her bedroom at mom’s house because her room at dad’s has penis boogers on the floor. Once she got a slimy penis booger on her cheek in her room.
• March 4, at pick up at daycare: E. keeps repeating the word, “pussy”.
• March 8, the mother passed gas and apologized. E. said it doesn’t smell as bad as dad’s penis. Mother said, What? E. answered, “Daddy told me that his penis smells yummy and I should smell it.”
• March 11: during French homework the word “coq” is read, and the girls started laughing. E. said, “daddy always laughs at that word.”
• March 20 doing homework: the mother mentioned pussy willows and the girls laughed instantly. E. said, daddy always laughs at that word.

[47] The applicant concludes her affidavit by noting that the children are not in counselling, that their sexualized communications have been increasing and she believes reverting to the access schedule in place before they started is needed to prevent the situation from getting worse.

The Respondent’s Affidavit

[48] The father makes a blanket denial of all of the allegations made by the mother. He also denies specific allegations including use of the phrase “poison puke”, telling the children to keep secrets and or giving directions not to tell, holding E. down on the bed when she would not nap, or use of the words pussy or cock with children. He denies exposing the children to masturbation or semen or asking anyone to smell his penis. He relies on and quotes extensively from the CAS investigation notes and the fact that the CAS did not verify the allegations.

[49] The father comments that the CAS interview suggests that E. came up with a penis song sometime earlier that week and that she thought it was silly. He says he personally never heard E. say the word penis until Thursday February 13, 2020. On that date as he was preparing to return them to their mother E. said “penis”. O. said to him that E. says he sang a penis song. The father said he had not. O. replied, “I keep telling Mommy, no”. The father says this was the first he ever heard of the penis song. E. said the word again and he asked her to stop.

[50] The father is clearly skeptical of the mother. He notes that she raised this issue just before the February 27 return date of his motion seeking expanded access. And although in her March 26 affidavit she now says the revelations started back in mid-December 2019, they were not included in her February 11 affidavit nor told to the CAS contemporaneously even though she had opportunities to do so; she saw the social worker on December 20, January 17 and 22.

[51] The father described the steps he takes to protect himself in case the mother makes unfounded allegations against him. He has his brothers come to the visits whenever possible and he records his visits from start to finish.

[52] He points out discrepancies between her February 11 and March 26 affidavits.

• In February she said that O. told her the father said not to tell her or her teachers about what goes on at his place, but in March she said that E. said this.
• In February she did not say that she had heard the penis song at Christmas time, but in March she says she did.
• In February she did not refer to O. having a red vagina on February 6.
• In March she says O. did and that it was very sore.
• In February she says on February 9, E. was singing a song about penises and described it as a silly song.
• In March in reference to February 9, she includes E. singing words like “raining penises”, “rains from the penis”. The mother also includes that on this same occasion E. said that daddy loves his penis and wants to eat it, that O. said her dad sings the song in the living room, and that a few minutes later E. added that her father pinches his penis, kisses it and says he does not know what to do with it.

[53] The father is also skeptical of the email the mother wrote to the CAS after being told the allegations were not verified. He describes the email as “ramping up” her allegations. He also points out a discrepancy in the mother’s description of O.’s vagina in this email to the CAS (red) and in her March affidavit “very red” and “very sore”.

The February 9 Recording

[54] In her request to bring an urgent motion the mother referred to a recording she made on February 9, 2020. I ordered her to deliver a copy to the father. Submissions would be heard during the motion as to whether the recording could be used, not to prove the truth of the contents, but to address the issue of subsequent embellishment, in other words as to her credibility and reliability.

[55] Additionally, the mother was cross-examined on the recording.

[56] In the recording E. sings “rain your penis, rain your penis, eating penis from the air”. Her affidavit includes this and goes on to say that E. also said daddy loves his penis and wants to eat his penis. The recording shows that this statement was made after the following questions from the mother and answers from E.

• Q: Where are you getting this silly song from?
• A: Daddy taught me this.
• Q: Wait, are you serious?
• A: Yes.
• Q: Do you think it is a good song?
• A: No, I think he is a bad singer.
• Q: Well I am not a good singer. Do you like this song?
• A: No.
• Q: When would anybody sing a penis song?
• A: Daddy.
• Q: Why does he sing a penis song?
• A: Cause he loves his penis and he wants to eat his penis. La la la laaaaa.

[57] The recording also contains the following exchange between E. and her mother.

• E.: He wants to eat his penis! He wants to eat it for dinner. He wants to chop it off.
• M.: Oh!
• E.: So, he can be a girl. But a girl that chopped off its penis.
• M.: OK.
• E.: A boy that is a girl. A boy that is talking like a girl. Like this (talks in a higher voice). I am good. How do you do? But boys actually don’t wear um a tutu.

[58] This exchange is not included in the affidavit.

[59] In the affidavit the mother deposed that on February 9, O. said the father sings the song in the living room. This is not contained in the recording. The affidavit says that E. said that dad pinches his penis. This is not contained in the recording. The affidavit says that she went on to say that he kisses his penis and does not know what to do with it.

[60] The recording shows how this statement was made. After the end of the first recording there is about a ten-minute interval, then a second recording starts. It begins with the following exchange between the mother and E.

• Q: E. can you tell me about that song?
• A: He really wants to eat his penis and he doesn’t know what to do to his penis. He is kissing his penis.
• Q: He kisses his penis?
• A: Yes!
• Q: Wow!
• A: giggling, that’s funny huh?
• Q: So, you said daddy … daddy taught you that song?
• A: Yes, he did. He did teach it. He did.

[61] The second recording also contains the following exchange that is not referred to in the mother’s affidavit. The mother asks E. if there any dance moves to the song. This question and the ensuing answers are in the recording but not in the affidavit:

• E.: yes.
• M.: okay
• E.: he touches his penis.
• O. ------show us.
• M.: hang on O.
• E.: no.
• M.: wait E. he touches his penis?
• E.: yes
• M.: when he sings this song?
• E.: mmhm. I’m gonna show you it after.
• M.: oh ok. so, he is the only one who touches his penis?
• E.: he is the only one.

The Cross-Examinations

[62] Each party was cross-examined for about 30 minutes at the outset of the hearing. The cross-examinations were conducted by audio conference such that I did not have the opportunity to observe the witnesses as they testified.

[63] The father agreed he was alarmed to hear what E. has been saying and agreed it is inappropriate for a four-year-old child. He records all his visits with the children from beginning to end, except for when they are in bed or napping, or playing or talking on the phone. He told the CAS he had these recordings, but the CAS did not ask for them. He said he told the CAS he could provide the recording of the one and only day on which the word penis was used in his house but was told it was not necessary as their investigation was complete. This is not contained in the social worker’s notes of their February 14 conversation; however, the father did not actually say when this was said. He denied that it would have been useful to give the recordings to the mother to assuage her concerns saying that she had been tailoring evidence and has the ability to alter and edit photos and videos. I did not find this explanation persuasive. It is unlikely that she would try and would be futile if she did try to alter a recording the original of which is in his possession.

[64] The father denied knowing what a therapeutic interview is. For that reason, he could not answer whether the CAS had conducted a therapeutic interview. He also denied knowing what grooming is. I found both answers difficult to accept. The respondent had obviously read the applicant’s affidavit very closely and carefully. In it she speaks to the therapeutic context in terms of underlying issues with what the children are saying, not just the words used, and the psychological level to it. It is also difficult to accept that the father would not be familiar with the concept of grooming especially in light of what he was reported as having said to the children. I was concerned that both of these denials were given as an effective way to shut down related follow-up questions.

[65] The father testified he had not spoken to the children about the allegations. He explained he did not want to until proper supportive counselling is in place for them and until his own counsellor is able to give him advice on how best to raise the topic with the children.

[66] The mother was asked why she did not present the statements made to her to the CAS as they unfolded. She provided two answers. She said that until recently the possibility of sex abuse did not cross her mind. It was only after hearing the cumulation of disclosures that it all started to add up for her. And, knowing that this is a very serious matter to raise she waited to get advice and support for the validity of her concerns before moving forward on it. She went to see their doctor on February 12 and based on advice received brought the children directly to the doctor the next day based on what they were saying to her on the drive home from a visit with their father.

[67] The mother also mentioned that she had told her lawyer about the February 9 disclosures.

[68] The mother testified that the second time she heard the penis song, February 9, she decided she should record it. She said the first time she heard it was over the Christmas holidays. She was asked specifically why if this was true, she had not told the CAS or referred to it in her February 11 affidavit. She answered that just because it was not in her affidavit did not mean it didn’t happen. She said her aunt’s affidavit referred to the penis song. That affidavit described E. running into the bathroom on December 24 yelling “penis” repeatedly.

[69] There was no real explanation for deposing that E. had said on February 9 that her father pinches his penis, or that O. said he sings the penis song in the living room, neither of which statements are contained in the recording. The mother also maintained that O. made this statement to the doctor and CAS social worker whereas it it is not in the doctor’s letter or CAS notes.

[70] The mother’s affidavit of February 11, 2020 sets out 11 separate reasons why the father’s access should not be increased but makes no mention of the sexual content disclosures. She had almost all the information she now puts before the court by February 18, yet submitted no additional affidavit for February 27, the date on which she would have expected the father’s motion for increased access to proceed. Her explanation that she was waiting for validation was not persuasive.

[71] The mother was also questioned about the fact that she sent an email to the CAS with additional alleged disclosures in it, two hours after she was told that the CAS investigation was complete and had not verified the allegations. In that email she writes that the CAS seems to have made up its mind before speaking to her. It would be reasonable for her to expect to have input into the investigation. The CAS did not deem it necessary to speak to her, but had they, she would have had the opportunity to provide information to them verbally, before the investigation was complete.

[72] I also accept the mother’s explanation for the discrepancies between her email to the CAS and her March affidavit. I accept that she wrote the email during her lunch hour, was short of time and worried about the upcoming access visit.

Analysis

[73] There can be no doubt that the statements made by E. are extremely unusual and well beyond the normal experience of a child her age. The parents take diametrically opposed positions placing intentional responsibility on the other. There are other possibilities which have not been developed in this hearing. Did E. perhaps walk in on her father masturbating in the bathroom? Is the mother perhaps highly vigilant and on alert for signs of any inappropriate behaviour by the father? If so, while her motivation may be to protect the children, have her efforts to do so, by questioning them, perhaps misinterpreting something they may have said, and repeating that back to them as a reality, prompted E. to make some or all of her statements whether she even knows what they mean or signify?

[74] This is an extremely challenging case, made the more so by the constraints of a written motion record with only limited cross examination by audio conference call. There are issues with respect to the reliability or credibility of some aspects of both parents evidence. Shortcomings in the CAS investigation have limited its helpfulness. Counselling that was ordered for the children in November may have provided insight into why certain statements were made but has been delayed by the actions of both parents. A counsellor has been located and appointed by recent order but getting started will be further delayed by reason of the public health response to the COVD-19 crisis. The case is complicated and requires a complete assessment. One is scheduled to commence in June. Hopefully by then it can and will proceed.

[75] The responsibility of the court is to make the order that it determines to be in the best interests of the children based on the evidence that is before it now.

[76] Paragraph 56 of the evidentiary ruling states: “Both counsel agree that statements made by the children to the social workers may be admitted for their truth and or state of mind.” These are the only child statements in the motion record offered for their truth. The statements made by E. to the social worker are set out in detail at paragraphs 19 to 21 above. There is no doubt that E. made these statements. Some questions that might have assisted determination of the ultimate reliability of her statements were not asked. Additionally, her first statement, that daddy kisses his penis, squeezes it and pees in his mouth, is made in direct response to the question, how is your mom. Clearly the answer is not responsive to the question and is suggestive of influence by the mother. E. then says at two separate points in the interview that her mother told her to tell the social worker that daddy taught her the penis song, and about the penis song. She reports another question asked by her mother as to whether he touched her vagina.

[77] There are other answers given by E. that go to reliability. She said she had not told anyone but the social worker about the penis song, but she had told her doctor about it the day before. When asked specifically about seeing her doctor she said, yes and that they had spoken about the penis song. When asked she said she could not remember speaking about anything else to the doctor, whereas she had made other disclosures to her.

[78] The statements made by O. to the social worker are set out at paragraphs 22 to 23 above. She said E. told her about the penis song and that their dad had taught it to her. She also made the shocking statement that E. told her she had seen daddy in the bathroom, giving bye bye kisses to his penis so it can grow, and then later, adding that E. had told her that after the kisses he washes his lips. These statements are evidence that E. told these thing to O., but are not evidence as to the truth of what E. told her. O. was unable to provide accurate information about when E. made these statements to her. She was not asked where she was when E. told her these things or whether anyone else was present. It may have been helpful in evaluating the significance of what E. said to her sister if it were known whether E. confided in her privately or whether O. overheard E. in dialogue with her mother.

[79] Both children told the social worker that were ok/good visiting both parents and E. said she was not scared of anything.

[80] The only other statements made by the children to an independent person were made to the doctor. They were not admissible to prove their truth, but for the fact that they were said, to show the basis of the doctor’s report to the CAS, to show what the mother relied on as validation of her concerns, and for the doctor’s own ongoing concern about what E. said to her despite the conclusion reached by the CAS. These statements are set out in paragraphs 12 and 13 above.

[81] It is not apparent from either the doctor’s letter or the CAS notes whether the mother was present during the interview of the children, or whether the children were interviewed separately. There is no information as to the doctor’s impressions of the independence of what the children said to her. E. made some statements to the doctor that she did not make to the CAS worker. O. told the doctor that their father had asked them to keep a secret but told the CAS worker that she had no secrets, and no one had told her to not tell her something.

[82] E. said two things to the doctor that do show her state of mind; she is scared dad might touch her bum with his penis and she is kind of scared at his house but ok.

[83] There were differences as between what each child said to the social worker and to the doctor.

[84] The bulk of the children’s statements are provided by the mother. These were not tendered for the truth of their contents and are not admitted for that purpose. I have reviewed what she said in this regard in detail in this endorsement. In addition to the observations already made as to difficulties with her evidence I cannot understand why she would not have brought everything she now describes as very alarming forward in affidavit form for the February 27 motion date, or why she did not include the totality of what E. said to her in her March 22 affidavit if she believed what was being said to her was truly happening.

[85] On the totality of the evidence now available E.’s statements are not sufficiently reliable to establish her father as the person who has exposed her to inappropriate information about sexual matters that is well beyond her years and stage of development.

Conclusion

[86] The motion to reduce the father’s access by eliminating overnight visits is dismissed.

[87] I make the following orders in an effort to mitigate the risk of harm that remains.

• Neither parent shall discuss with either child any of the statements with sexual content made by either child to date.
• Both parents shall instruct E. that she shall not sing the penis song if she sings it again after the date of this endorsement.
• If any further statements with sexual content are made, the mother shall not ask the child anything about it at all but shall forthwith advise CAS and the children’s physician in writing of what was said. It shall remain in their discretion what if any steps they take in response.
• Counsel for the parties shall send a copy of my reasons to the children’s counsellor and to the assessor forthwith in the hope that a suitable way to commence counselling and the assessment can be identified.
• I remain seized of procedural case management and of substantive motions.

Costs

[88] Each counsel shall deliver a Bill of Costs for this motion to me by May 15 without submissions or offers to settle the motion. I do not intend to address costs of the motion now but will do so later in the litigation. I will provide the opportunity to make submissions to counsel at that time.

J. Mackinnon J. Date: April 22, 2020