Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2020/08/05 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: J.D., Applicant AND N.D., Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Manraj Grewall, for the Applicant Alexei Durgali, for the Respondent

HEARD: July 28, 2020

Endorsement

[1] This is the return of a motion by the respondent and a cross motion by the applicant adjourned from April 2, 2020 due to restrictions necessitated by the COVID-19 public health emergency. The respondent father seeks increased parenting time and a change to the location where the children are exchanged. The applicant mother opposes changing his contact with the children and seeks financial orders.

[2] Both parents have delivered updated materials to the court.

Parenting Issues

[3] In the interval I heard an urgent motion brought the mother. She sought to decrease the father’s access, in particular to remove any overnight access, based on statements the children had made which contained inappropriate sexual content. I dismissed that motion for reasons provided at J.D. v. N.D., 2020 ONSC 2448. In a nutshell I found that the child’s statements were not sufficiently reliable to establish her father as the person who has exposed her to inappropriate information about sexual matters that was well beyond her years and stage of development. I also found that there were issues with respect to the reliability or credibility of some aspects of both parents’ evidence. Counselling that had previously been ordered for the children had not yet commenced and had been further delayed by the COVD-19 crisis. A full assessment was scheduled to commence in June.

[4] The father’s motion is not restricted to events occurring since the urgent motion. That said it is useful to set out important events that have taken place since the release of the April 22, 2020 decision. The mother laid a complaint against the father with the Ottawa Police on April 29 alleging sexual interference to the youngest child. This was investigated by the police with no charges laid. In the course of its investigation the police asked the father to take a polygraph test which he did, successfully. The Children’s Aid Society also investigated and found the allegation unverified.

[5] The mother reported to the CAS that the elder child also disclosed sexual contact by her father on June 28. She. That investigation also found the allegation was not verified. In its July 20 reporting letter to the parents, the CAS noted that the mother often speaks to the children in a negative way about their father and questions them when they return from his home. The older child told the Society worker that her mother will often ask her if she was hit, touched or hurt by the father. The child said she did not want to be asked these questions and sometimes her stomach hurt while she was being questioned.

[6] The mother sought a referral to a psychologist from the children’s physician in an effort to get to the bottom of why they would be saying these things to her. The psychologist referred them on to the Children’s Hospital for Eastern Ontario where a physical examination revealed no signs of sexual interference. I am told that as result of that examination and the CAS investigation CHEO is not proceeding further.

[7] Other developments include that the assessment is underway. The assessor has committed to completing her work by the end of September. The first session with the children’s counsellor is set for August 14.

[8] The father seeks an increase in his Tuesday and Thursday visits currently limited to 4:30 p.m. to 7:00 p.m., to commence instead at 8:30 a.m. He also seeks to increase his alternate weekend access currently from Saturday morning to Sunday evening. He seeks a first increase to move the commencement time to Friday, and a second increase to shift the return time to Monday morning. He asks for five vacation days in August and additional time at Christmas.

[9] The mother’s position is that the status quo should remain in place until the assessment is complete.

[10] In support of his motion, the father submits he was and remains an involved, loving and capable parent. He notes that the CAS has made multiple observations of him with the children and has described the bond and affection between them. After each investigation the CAS has found him to be a capable parent. Three different social workers have interviewed the children since the separation and on each occasion have not verified the allegations against him. His view is that the mother is engaged in a campaign to bad mouth him to the children with the goal of restricting his relationship with the children. He points to the recent CAS letter as confirmatory of this.

[11] The father also maintains that the mother has some parenting issues. The CAS has verified that she hit one child on the head with a book and that she is exposing the children to adult conflict in her home. In November 2019, the mother described herself as feeling overwhelmed and expressed concern that she might hurt the children in frustration.

[12] The mother submits that she is a concerned parent trying her best to respond to alarming statements made to her by her daughters. She says she encourages their relationship with their father and gives an example of helping the children support him when his cat recently died. She says she did not plant these ideas of sexual content in the children’s minds, and that she does not raise the topic or question them except in response to their disclosures. The disclosure of actual sexual contact after the April motion was very alarming to her, not only due to the nature of the touching but due to the fact that she saw a progression consistent with his having been grooming the children for actual sexual abuse.

[13] The mother explains the children’s disclaimers to the CAS by reference to their father having told at least one of them what to say. In case her fears are ill founded she sought a psychological intervention to try to figure why the children would be saying these to her if they are not in fact happening.

[14] In response to what the father said about her parenting the mother points out that she was asking for proactive guidance from CHEO in November 2019, which she did receive. She also describes the hit on the head as with a soft covered book rolled up like a “magic wand”. This is a technique she uses whereby she taps the child on the head to “cast a spell” that causes the child to comply with a request. In this instance the request was to pick up puzzle pieces. The child cried and complained because she did not want to do so, not because she had been hurt.

[15] The mother urges that no change should be made to the father’s contact with the children pending the completion of the assessment. She submits that the timing of the first disclosure of sexual content is linked to the increase in his access in November 2019, and that consistency is best for the children at this time.

[16] One anticipates that the assessment will provide important information to the parents and to the court. The father submits that nonetheless the court should allow his motion without waiting for the report. He relies on two cases in this regard. In both the motion judge increased access and awarded overnight access without waiting for OCL clinical investigations to be completed. In both cases the fathers had been having quite limited access. One father had supervised access only. In one case, Torok v. Ball, 2017 ONSC 922, the OCL clinical investigation had been accepted but not yet started. The motion judge found that the reasons why supervision had been required were no longer present and that the mother was no longer breastfeeding the child. In Taylor v. Baker, 2016 ONSC 1259 the motion judge found that overnight access was long overdue and should commence without further delay waiting for the OCL investigation to be completed.

[17] These facts are distinguishable from the case at bar where the father already has some overnight access and the assessment is underway with a known completion date. More significantly, neither Torok nor Taylor appeared to be as factually challenging as this case. Here one parent alleges sexual grooming and interference against the other, and he alleges that she is planting these ideas in the children’s heads in a campaign to restrict his relationship with them. The assessment is expected to provide expert insight into these difficult issues which have a direct correlation to whether the father should have overnight access to the children, let alone increased overnight access.

[18] On the other hand, by her own admission the mother has not complied with an important term of my April 22 order. My endorsement included the following provision at paragraph 87:

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.

[19] I included this term in response to evidence suggesting that the mother may have influenced the children and the difficulty this created for an investigation. At paragraph 43 I said, “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.”

[20] In an attachment to her updating affidavit the mother describes her detailed questioning of one child in relation to the child’s disclosure of sexual touching by her father.

[21] I do not minimize the seriousness of allegations of child sexual abuse, but the fact is that given the outcome of the CAS investigation a finding that such has occurred cannot be made to the required standard of proof at this time. The mother’s questioning of the children as revealed by them to the CAS and in her own material continues to complicate the case.

[22] I conclude that the father’s request to increase his Tuesday and Thursday daytime access with the children should be allowed and the balance of his access requests shall be adjourned until after the assessment is completed.

[23] The exchange location when school is not in session shall be adjacent to the front of entrance of the Walmart store on Fernbank Road, rather than inside the building. I agree that outside is safer than inside given the continued presence of the coronavirus in the community. The children and parents should be masked. The parents should not speak to each other than to exchange common courtesies unless necessary to provide essential information pertaining to the children.

[24] The motion shall return during the week of October 5, 2020 on a date to be set by the Trial Coordinator. One half day shall be set aside. This time allotment is intended to provide each party with an opportunity to question the assessor should they request to do so as part of the motion hearing. Counsel shall provide the assessor with a copy of this endorsement and notify her of the motion date when it is set.

Financial Issues

[25] The mother seeks child support for the month of August 2019. She left the matrimonial home with the children at the end of July 2019. Since the children resided primarily with her in August, she says child support should be paid for that month. The father points to the interim without prejudice order made on consent on September 13, 2019. That order required child support to commence on September 1, not August 1. He says that child support should not be awarded for August until the mother complies with a disclosure order made on February 27, 2020. He believes she made withdrawals from an account that should be factored in to whether and how much child support he should pay for August. It was submitted for the mother that she has made that disclosure.

[26] The February 27 order requires the mother to produce bank account statements to the end of August, 2019. The certificate of Financial Disclosure her counsel referred to shows disclosure of such statements has been made up to April 2, 2019 but not thereafter. Accordingly, my ruling is that this issue should await completion of the mother’s compliance with the February 27 order.

[27] Next, the mother seeks an order that the father pay his percentage of certain children’s expenses which she has incurred. The father submits that these are not section 7 expenses and should be paid out of the monthly child support payment. I find that the expenses incurred for outdoor camping equipment, day camps, and swimming lessons are section 7 expenses and the father shall contribute to them. I reject his submission that because he offered to take care of the children in lieu of incurring day camp expenses while the mother worked, that therefore he should do not have to contribute to this cost. The parent with residential care is entitled to make reasonable care arrangements for the children that do not include sending them to the other parent if not required to do so by agreement or court order. The cost of swimming lessons for the period in question came to $310 and I find this is not so low as to not constitute a section 7 expense.

[28] The father shall also pay the $65.70 as his contribution to the Kids Kingdom for day care on strike days.

[29] I do not allow the mother’s claim for babysitting while she attended a parenting program or for the two amounts paid for Guides, $30 in one month and $40 in another.

[30] The hot lunch program at school for both children came to $369 for five months. The father paid for half of this, but the mother seeks an additional $84.50 from him to bring his contribution up to 73% of the total cost. This is denied. Meals are typically the responsibility of the residential parent at the time and are typically covered by the child support payment. In this instance the hot lunch program may well cost more than would the lunches the mother would normally have provided for the children on a school day. It seems to me that by contributing half of the hot meal expense the father has made up his share of any excess cost differential, and nothing further should be required of him.

[31] For these reasons the father is ordered to pay the mother the sum of $1,321.50 as his 73% of the expenses allowed above.

[32] The mother also asked the court to order the father to pay her $75.44 representing half of a payment she made on their joint line of credit. This is an accounting issue properly dealt with between the parties when they are finalizing the equalization of their net family property.

[33] The final amounts claimed by the mother were incurred to have her vehicle inspected for a listening device after she learned the father had planted one in the family vehicle. She also incurred car rental fees while her vehicle underwent inspection. These amounts may be included as disbursements in a bill of costs at an appropriate time but are not properly claimed on an interim motion as an aspect of child support or as a section 7 expense.

Costs

[34] Costs are deferred until the conclusion of the motion to be heard in October.

J. Mackinnon J.

Date: August 5, 2020

COURT FILE NO.: FC-19-1222 DATE: 2020/08/05 ONTARIO SUPERIOR COURT OF JUSTICE RE: J.D., Applicant AND N.D., Respondent BEFORE: J. Mackinnon J. COUNSEL: Manraj Grewall, for the Applicant Alexei Durgali, for the Respondent ENDORSEMENT J. Mackinnon J. Released: August 5, 2020