WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO. C56317/12
DATE: 2012-08-07
Citation: Children’s Aid Society of Toronto v. L.E., 2012 ONCJ 516
ONTARIO COURT OF JUSTICE
TORONTO NORTH FAMILY COURT
IN THE MATTER OF A PROTECTION APPLICATION UNDER PART III OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, C. 11, REGARDING THE CHILD, C.W., BORN ON […], 2005.
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
MAE-TUIN SETO, for the APPLICANT, CHILDREN’S AID SOCIETY OF TORONTO
APPLICANT
- and -
L.E. and G.W.
CHAD D. RAWN, for the RESPONDENT, L.E.
RESPONDENTS
TSHIMANGA-ROBERT BUKASA, for the RESPONDENT, G.W.
SARA WUNCH, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the child, C.W., not participating in this hearing
HEARD: JULY 30, 2012
JUSTICE S.B. SHERR
REASONS FOR JUDGMENT
Part One – Introduction
[1] This trial was about whether the child C.W. (the child), born on […], 2006, is a child in need of protection pursuant to clause 37 (2) (b) (risk of physical harm) of the Child and Family Services Act (the Act).
[2] The Children’s Aid Society of Toronto (the society) apprehended the child on March 14, 2012, after they were advised that the child had made disclosures of physical and sexual harm against her by her father, the respondent G.W. (the father). The child has remained in the society’s care since that time.
[3] The society initially sought a finding that the child was in need of protection due to risk of both physical and sexual harm. At the outset of the trial, the society advised the court that they were withdrawing their request for the court to make a finding that the child was at risk of sexual harm. This left the issue as to whether a finding should be made that the child was in need of protection due to a risk of physical harm.
[3] The respondent, L.E. (the mother), is the child’s mother. The respondents (the parents) have another child, age two, who lives with them and is not the subject of any court proceeding.
[4] The parents ask that the protection application be dismissed and that the child be immediately returned to their care. They both adamantly deny that the father has ever physically or sexually harmed the child. They both admitted to doing some minor spanking of the child, but that this last happened over two years ago.
[5] The child’s lawyer, through the Office of the Children’s Lawyer, did not participate in this trial, but at the trial management conference put on the record her support of the society’s request to find the child in need of protection. The views and preferences of the child, as expressed by her counsel, are to be placed in the care of her mother, but not her father.
[6] The parties agreed at the trial management conference that all statements made by the child to third parties, including a videotape of an interview of the child by the police, would be admissible, but arguments would be made about the weight that the court should attach to these statements.[^1] The parties also agreed that this trial would only deal with the finding phase of the protection application and that if the child was found to be in need of protection, the issue of disposition would be dealt with at a later date.
Part Two – Background
[7] The mother is 30 years old and the father is 37 years old. They began cohabiting in 2004 and married in 2010.
[8] The mother is employed full-time as a sales specialist. This is her first marriage and she has no other children other than the two children she has with the father.
[9] This is the father’s second marriage. He has six children, including the two children he has with the mother. Three of his children live in Trinidad and one child lives in Montreal.
[10] The father spends most of his time in Montreal. He is employed there as a machine operator on a full-time basis. He comes to Toronto and resides with the mother about one weekend each month. He will stay on these occasions for one or two nights.
[11] The father was laid off from work earlier this year from February until June. The father was living in Toronto with the mother and their two children at the time of the apprehension.
[12] In September of 2011, the mother’s parents, from the Caribbean, came to visit her. They were living in the family home on the day of the apprehension and were assisting with child care. They have recently returned home.
[13] The parents have had no prior involvement with child protection authorities.
[14] On March 14, 2012, the society received a referral from the supervisor of the child’s March Break Day Camp (the camp). Based on this referral, the society investigated the possibility of sexual harm by the father against the child.
[15] The society and the police commenced a joint investigation on March 14, 2012 and the child was interviewed at the police station. The child did not disclose any sexual abuse by her father, but did make disclosures of physical harm against her by him. She also expressed fear of her father during this interview.
[16] On the same day, the child was taken to the Suspected Child Abuse and Neglect Unit at the Hospital for Sick Children. They found no suspicious marks on the child and found no medical evidence of abuse.
[17] The police determined that there was insufficient evidence to lay criminal charges against the father.
[18] The child was apprehended by the society on March 14, 2012.
[19] The society issued their protection application on March 19, 2012, seeking a finding that the child is in need of protection pursuant to sub-clauses 37 (2) (b) (risk of physical harm) and (d) (risk of sexual harm) of the Act, and a disposition that the child be made a society ward for six months.
[20] On March 19, 2012, Justice Ellen Murray made a temporary, without prejudice order, placing the child in the care of the society, with access to the parents to be in the discretion of the society, not less than twice per week, for two hours each visit. This order remains in place. The parents have consistently exercised their access with the child.
Part Three – The law
[21] The society seeks a finding that the child is in need of protection pursuant to clause 37 (2) (b) of the Act. This clause reads as follows:
37 (2) (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
[22] The society has the onus, on a balance of probabilities, to establish that the child is at risk of physical harm.
[23] The risk of harm under clause 37 (2) (b) of the Act must be real and likely, not speculative: See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.).
[24] It is not necessary for the society to prove an intention to cause the child harm before finding that the child is in need of protection. Physical harm caused by neglect or error in judgment is still physical harm. But, it must be more than trifling physical harm. Children’s Aid Society of Niagara v. P.T. (2003) 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290.
[25] The use of physical discipline was discussed by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, 2004 1 S.C.R. 76. This was a criminal law case, but the court’s comments about the use of physical discipline are helpful. The court wrote at paragraph 37:
Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful (emphasis mine). These types of punishment, we may conclude, will not be reasonable.
[26] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children’s Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, (Ont. C.J.), at paragraphs [13]-[26]. The parties had disclosure of the relevant evidence in this case.
[27] The flexible approach is appropriate in this case as the child made multiple allegations of physical harm by her father against her, after she was apprehended, fully crystalizing the risk concerns.
Part Four – The evidence
4.1 The witnesses
[28] The society’s case relies entirely on the statements of the child to third parties. There was no medical or eyewitness evidence corroborating her disclosures of physical harm against her by the father.
[29] The court heard that the child made disclosures of physical harm against her by the father to the police and to three society workers, Henry Tran (who was present during the police interview), Lisa Hilliard and Julie James, The court heard evidence from these three society workers. The court also had the opportunity of observing the videotaped interview of the child with the police.
[30] The parents both testified on their own behalf. They called no other witnesses.
4.2 The police interview
[31] The police interview of the child was conducted on March 14, 2012. Two police officers, Detective Constable Halijaste (male) and Detective Constable Mosher (female), and society worker Henry Tran were present during the interview. The interview took place at the police station. The interview lasted about one hour and 15 minutes. There were two short breaks during this interview, where the adults left the room, and the child quietly colored pictures. The interview was primarily conducted by Detective Constable Halijaste. Mr. Tran asked the child a few questions, but was not an active participant in the interview. For the last 20 minutes of the interview, Mr. Tran and Detective Constable Halijaste left the room and the child was interviewed alone by Detective Constable Mosher.
[32] The child appeared quiet and a bit apprehensive during the police interview, but remained very composed for a child of her age, particularly given its length. She appeared to understand most of the questions asked of her and answered them politely and directly. She stated that she understood the difference between the truth and a lie. She presented intelligently. She became tearful when relating incidents of physical harm against her by her father. The child appeared to be more open, talkative and comfortable when speaking alone with the female police officer.
[33] The police officers presented in a sympathetic manner to the child during the interview. They were faced with a difficult task. They had been told about certain disclosures by the child of a sexual nature. They were trying to elicit them from a young child who was frightened by the situation she found herself in. They wanted to ensure, if these allegations were true, that the child was safe. They attempted to ask open-ended questions, particularly about the sexual abuse allegations, but didn’t make much progress with them.
[34] Much of the interview was focused on whether the father had ever sexually harmed the child and comments that the child had purportedly made to her camp counselor the day before.[^2] The child did not verify, and in fact, denied any incidents of sexual harm by her father against her during the interview.
[35] However, during the interview, the child did make allegations of inappropriate physical discipline by her father against her and expressed that she was afraid of him. This was apparently the first time that these disclosures had been made. They had not been expressed to her camp counselor the day before.
[36] While being interviewed with the three adults in the room, the child made the following disclosures against her father:
a) Her father gets upset and beats her a lot.
b) Her father beats her a lot and beats her hard. When asked where, she showed her arms and legs.[^3]
c) She is afraid to talk about her father.
d) Her father doesn’t hit her much, just a little. When asked why, she said it was because “sometimes I don’t listen much, but I do listen sometimes”.
[37] The child made further disclosures when being interviewed alone by Detective Constable Mosher as follows:
a) She is afraid of her father. He beats her with a belt and left a mark. She remembered her father hitting her with a belt one or two times. He doesn’t do this anymore. He did this because she didn’t listen. Her mother was present when this happened and didn’t say anything.
b) She was afraid that her father would start hitting her again.
c) Her father slapped her on the back of the head on the way to camp that morning. It didn’t hurt, but she cried.
[38] There were several aspects of the police interview that were problematic, particularly the portion of the interview conducted by Detective Constable Halijaste. These difficulties will be set out below.
[39] Mr. Tran testified that he is a senior worker for the society. He has taken courses in the interviewing of children in abuse allegations and trains younger workers in this area. He acknowledged that an interview of an hour and fifteen minutes is too long for a child of this age (she was 5 years old when interviewed). He testified that he tried to encourage the police to speed up the interview during the breaks. He agreed that it was a problem that the child expressed that she was tired during the interview. The risk of a long interview, he said, is that a child might tell the person in authority what they think that person wants to hear.
[40] Mr. Tran also acknowledged that Detective Constable Halijaste was often asking the child leading questions. He said that the danger of doing this is that young children will sometimes want to please the person in authority and give them the answer they think that they want to hear. A leading question will often have the effect of suggesting the right answer to the child. Some examples of leading questions or leading comments made by Detective Constable Halijaste were:
a) Did any bad things happen at home?
b) It was something about your Dad - we were told something bad happened.
c) Sometimes adults do bad things.
d) We think something bad happened with your Dad at home and it involved private parts.
[41] Mr. Tran also acknowledged that it was problematic that Detective Constable Halijaste repeated questions or made comments that something was wrong, when he didn’t get the answers he was seeking from the child, such as:
a) I think something bad is happening, you can tell me.
b) I think something bad happened and you are afraid to tell me.
c) I think you are scared and are afraid to talk about it.
Mr. Tran said that he would not have made these comments. He said that the danger is that the interviewer is sending the child the message that something is wrong. By repeating the comments when the interviewer doesn’t get the answers sought, the risk, again, is that the child will give the interviewer an answer they think they want to hear just to please them.
[42] The deficiencies of the interview were magnified by the fact that the child was fearful of what might happen to her. She expressed during the interview that she was afraid that when the police came to her camp, they were going to take her away from her family. She appeared (understandably) frightened to be examined by three adults, at a police station, about very specific abuse allegations. Mr. Tran confirmed that the child told him that she didn’t like Detective Constable Halijaste and was afraid of him.
[43] These flaws in the police interview caused the court to treat the disclosures made during it with considerable caution.
4.3 Lisa Hilliard
[44] Ms. Hilliard was a social work student training with Mr. Tran when the child was apprehended. She has subsequently become a family service worker for the society.
[45] Ms. Hilliard testified that she watched the police interview from a monitor in another room on March 14th, 2012. Ms. Hilliard arranged for an emergency foster home for the child that night, and after the interview drove the child to the foster home.
[46] Ms. Hilliard stated that she drove the child to the society office from the foster home the next day. The plan was for her and the child to spend the day together, until an appropriate foster home could be found for the child.
[47] Ms. Hilliard described the child as talkative and relaxed on the way to the society office. The two of them played comfortably at the society office. The child told her that she was having a “really fun day”. Ms. Hilliard testified that at lunch she asked the child what kinds of things she does with her dad. The child answered, “I don’t understand why he beats me so much”. The child then asked Ms. Hilliard if she would be telling the police officer about this. Ms. Hilliard told the child that she would have to tell Mr. Tran. The topic was not discussed again.
[48] The child’s statement to Ms. Hilliard was spontaneous and not prompted. The child was comfortable with Ms. Hilliard and the setting she was in when she made the comment. Ms. Hilliard made a contemporaneous note about the statement. The court finds that Ms. Hilliard accurately related the child’s disclosure.
4.4 Julie James
[49] Ms. James was assigned as the child’s children service worker by the society on April 10, 2012 and continues to act in that capacity.
[50] Ms. James is a very experienced worker with extensive experience in interviewing children where there have been allegations of abuse. She has a Masters in Social Work and is working on her doctorate. She said that she has conducted hundreds of interviews with children.
[51] Ms. James described that she has a very comfortable relationship with the child. She spoke about the child in glowing terms. She described the child as wonderful, outgoing, bright, curious, warm, eager to engage, social, talkative, articulate, that she relates well to adults, makes friends easily, is likeable and well-behaved. She said that the child has good learning skills and work habits.[^4] She said that she has had about 20 contacts with the child and seven private interviews.
[52] Ms. James was a thoughtful and impressive witness. She demonstrated techniques of interviewing children that allow them to express their feelings in an open and developmentally-appropriate manner. She described how she used these techniques with the child. Ms. James also emphasized the importance of not asking leading questions to children.
[53] The child made disclosures about her father on four separate occasions to Ms. James.
[54] Ms. James testified that she met with the child on April 16, 2012. They played a game where various questions were asked of the child, such as, who loves and takes care of her and the child would answer by putting paper hearts beside pictures of her family members.[^5] When asked if there was anyone that she was afraid of, the child pointed at a picture of her father.
[55] The next time that Ms. James met with the child was on April 19, 2012. During this meeting, the child talked to Ms. James about her dad hitting her with a belt. She said that her dad was mean. When asked what she meant, the child said that her father hits her with a belt and described being hit with different belts with different colors. Ms. James said that the child appeared uncomfortable talking about her father and didn’t seem to want to give her a lot of information. The child did not specify when she was hit.
[56] The next time that the child made disclosures to Ms. James was on May 3, 2012. Ms. James said that the child was blaming herself for being in foster care. The child expressed to her that she wanted to go home. When asked what, if anything, she wished to change at home, the child said that she wished that her father wasn’t mean to her and wouldn’t hit her. When asked when she was hit, the child, Ms. James said, just shook her head and closed down.
[57] The final disclosures made to Ms. James by the child were during a meeting on May 24, 2012. The child disclosed that when upset her father “slaps her, like they beat me”. When asked where, she pointed to her arms and back. When asked when the last time was, she said she didn’t know. When asked if it hurt, she answered, “a little bit, not much”. She later spontaneously said to Ms. James, “sometimes he uses a belt”. She also told Ms. James that her mother used to hit her, but not anymore. Ms. James said that the child often didn’t understand why she was being hit. Ms. James described the child as relaxed when talking about the positive things in her life and tense when making the negative disclosures. She said that this was the child’s usual pattern when speaking to her about her family.
[58] The court finds that the child’s statements made to Ms. James are reliable. The child was comfortable with Ms. James. The statements made to her were in response to open-ended questions or made spontaneously in safe and comfortable settings (such as the foster home and the child’s school). Ms. James is a professional who had a clear recollection of the statements and had no motive to misrepresent the evidence.
4.5 Access visits
[59] Mr. Tran and Ms. James have supervised access visits between the parents and the child. Both of them described the visits between the child and the mother as positive. The mother and the child are comfortable with one another and interact well. The mother comes prepared for the visits with food and activities. She is very cooperative with the society. Mr. Tran testified that the child’s relationship with the mother is “excellent, trusting”.
[60] Mr. Tran testified that the child refused to see the father at the first scheduled visit and appeared frightened of him, but did talk to him at the very end of the visit. She has agreed to see her father since then.
[61] Ms. James testified that the father usually does not engage well with either of the two children during the access visits. Instead, he will often sit on the couch directing the mother what to do and criticizing her or complaining about her parenting. She said that the mother does her best with the two young children during the visits, but the father will often not help her out. Ms. James says that she has spoken to the father about this, but he continues to act in this manner, although she has observed that he will make some better efforts to engage with the children after their discussions. She commented that the child doesn’t approach her father much during visits, and spends most of her time with her mother. She acknowledged that there has been some improvement in the interaction between the father and the child since the visits started.
[62] Mr. Tran also testified that the father and the child were initially distant at visits. He said that the child’s relationship with the father is different than her close relationship with her mother. He was more positive in his observations about the interaction between the father and the child than Ms. James. He said that there has been improvement in this relationship– they are more comfortable and interacting more. He describes their relationship now as “quite positive”.
4.6 The parents’ evidence
[63] The father testified that he has never physically or sexually harmed the child. He admitted to spanking the child. He said that he did this rarely and could count the number of times that he had spanked her on his fingers. He said that he would lightly spank the child on the behind, with an open hand, but that this had last happened over two years ago. He said that he never used a belt on her. He said that he now uses different discipline techniques. If the child is misbehaving, he says that he will have her sit down beside him - the equivalent of a time out. He said that he will explain things to her and reason with her and finds this to be effective. He says that sometimes he will use a stern voice.
[64] The father could not understand why the child might have made these allegations against him. He said that on March 14, 2012, while on the way to camp, the child said that she had forgotten to brush her teeth. He had her turn around, go home and brush her teeth. He denied slapping her on the back of the head that morning. He said that what happened was that he pulled her hood over her head and she might have misinterpreted this action.
[65] The father acknowledged that he was distant at first on access visits with the child. He said that due to the allegations and the society workers taking notes on the visits, he didn’t know how to act. The court appreciates that he might feel this way, and that this would explain some of the distance between him and the child. He said that this has improved and he believes that he and the child are back to where they were before. He does not believe that the child is afraid of him.
[66] The mother testified that she has never seen the father physically abuse the child. She repeated the father’s evidence about his spanking the child, lightly, on rare occasions, over two years ago. She said that she would spank the child more often than the father, but hasn’t done so for a long time. She did not believe the child’s disclosures of physical harm by the father and felt that someone must have put the idea in her head. She said that she asked the child if the allegations were true at a visit and the child told her that she had told a small lie.[^6] She did not believe that the child was scared of the father. She testified that if the child had been abused, she would have told her, as they have a very close relationship. The mother testified that the father was rarely alone with the child, as either she or her parents would have been present, and no one ever saw him hit her.
[67] The mother speculated that the child might have been angry with the father. She said that the father was the primary disciplinarian in the home and the child would ask her when he was going back to Montreal. The mother said that the child might have been angry with the father due to having to return home that morning to brush her teeth. She said that this might have been the child’s attempt to have the father removed from the home.
Part Five – Discussion and findings
[68] The parents argued that the court should reject the child’s allegations due to lack of medical evidence or witnesses to the alleged harm. These were factors that were considered, but were not determinative. The court finds that the child’s disclosures were credible and reliable.
[69] The child has made consistent and frequent disclosures of inappropriate physical discipline by her father and fear of her father over a period of two months. She has used the words beat, hit and slap to describe his use of discipline. These disclosures have been made to different persons in authority, the police and three different society workers. The frailties of the police interview of the child, set out above, were rehabilitated, to a large extent, by the subsequent disclosures made to the two social workers, in circumstances that the court found to be very reliable. This enhanced the reliability of the child’s statements made during the police interview.
[70] It is highly unusual in this court’s experience for a child of this age to consistently fabricate allegations of this nature and to express such consistent fear of a parent.
[71] The court was given little reason to believe that the child manufactured these disclosures. She was described as an intelligent, outgoing and well-behaved child. No credible evidence was adduced that the child is manipulative or deceitful. She misses her mother and brother and wants to go home. There does not appear to be any real motivation to lie about her father. If anything, she would be motivated to minimize these events in order to return home. The theories advanced by the parents that the child either wanted to force the father out of the home, because he was the family disciplinarian, or she was upset at him for the tooth-brushing incident were highly speculative and not supported by the entirety of the evidence.
[72] It was apparent to the court how painful this experience has been for the parents. They love the child and want her to be home. They do not see themselves as abusive parents. It is with an appreciation of this context that the court still had difficulty with the reliability of their evidence.
[73] The court does not accept the father’s evidence that he did not use a belt on the child. The child was very specific about his use of a belt, at one point talking to Ms. James about different colored belts that he used. It was apparent during the police interview, as well as to Ms. James that the child was fearful of her father’s use of the belt on her.
[74] The court also does not accept the parents’ evidence that the father stopped using corporal discipline over two years ago. The father was unable to articulate any reason why he chose to stop disciplining in this manner two years ago - he said he just decided to, “life changes”, he said. He became vague during cross-examination as to when he did spank the child – “maybe at age three”. The child’s recollection and fear of what she described as beating was too vivid for this to have been as historic as stated by the parents. For example, the child was very specific that the father would hit her on her arms, legs and the back, not just the behind as stated by the parents. She was able to demonstrate this to the police (arms and legs/behind) and to Ms. James (arms and back). It is unlikely that the child contrived such detailed evidence.
[75] The court also finds that the father minimized the incident on March 14, 2012. The child was very specific about being hit on the back of the head with an open hand by the father, as he was upset with her. The father’s version of events seems unlikely. It is more probable than not that he was upset by her failure to brush her teeth and he reacted inappropriately.
[76] The child stated that the mother was aware that the father was hitting her with a belt and did nothing. The court found this evidence credible. The court has a significant concern that the mother has consistently refused to consider that the child’s allegations may be true. She is more willing to believe that the child is a liar, or that someone has planted these allegations in the child’s head than believe her child.[^7] It makes the court question whether she has put the father’s needs ahead of the child’s in the past, and whether she might continue to do so in the future, putting the child at an increased risk of harm.
[77] The court finds on a balance of probabilities that the child has been subjected to inappropriate physical discipline by the father. It also finds on a balance of probabilities that the child has been scared of the father, and in particular, was very scared of him on the day she was apprehended.
[78] The next issue for the court to consider is whether the inappropriate physical discipline by the father crosses the threshold to create a risk of physical harm to the child as defined by clause 37 (2) (b) of the Act. As set out in Children’s Aid Society of Rainy River v. B. (C.), supra, inappropriate physical discipline will not always result in a finding in need of protection.
[79] The parents argued that the society failed to follow up with the child on what she meant when she said that her father “beat her”. They argued that in their culture, beating means spanking. They offered no independent evidence that this was the case, but the court took this argument into consideration. The court observed that the mother would unintentionally interchange these terms in her testimony. The child interchanged the words beating, hitting and slapping when describing incidents of physical discipline by her father.
[80] The parents argued that such a well-adjusted child could not have been abused – as surely she would be showing some signs of emotional trauma. No expert evidence was led to show whether or not trauma from inappropriate physical discipline will be immediately apparent in a child. The court is not willing to jump to the conclusion proposed by the parents. What the evidence does inform the court is that this child was very afraid to return home if her father was there. This consistent expression of fear is an indicator that the effects of the father’s inappropriate discipline on the child have been significant.
[81] The parents argued that the child would never have been apprehended if not for the sexual harm allegations that were not pursued at this trial by the society – the inference being that any disclosures of physical harm were regarded by the society as minor. Mr. Tran acknowledged that if not for the sexual harm allegations, it is unlikely that the child would have been apprehended on March 14, 2012 - the allegations of physical harm made during the police interview would have not justified this action. The court also notes that the society chose to leave the younger child in the home with the parents, without any court intervention.
[82] However, this case is not about whether the child should have been apprehended or about whether the inappropriate discipline would have been uncovered, if not for the sexual harm allegations. It is about whether there is sufficient evidence to find the child in need of protection due to risk of physical harm, as defined in clause 37 (2) (b) of the Act.
[83] The court finds that the threshold has been passed in this case. This case was about more than occasional light spanking by the father. He was hitting the child on her arms, legs, back and behind. His use of a belt on the child, combined with the child’s consistent expressions of fear of him, informs the court, on a balance of probabilities, that the discipline used by the father was not mild, but excessive and created a risk of physical harm to the child as defined in clause 37 (2) (b) of the Act.
[84] It was noteworthy that the parents went into considerable detail in their evidence about how these events have adversely affected them. However, they spent little time discussing the difficulties that the child might be experiencing. They never reflected that the father’s form of discipline might be making the child fearful and never considered that they might need to change how they disciplined her. The mother’s failure to believe the child’s allegations and protect the child, the parents’ denial that there is any problem with the father’s use of physical discipline, and their lack of insight into the feelings of the child all increase the risk of physical harm to the child.
[85] The court finds that the society has met their onus, on a balance of probabilities, of proving that the child is in need of protection pursuant to clause 37 (2) (b) of the Act.
Part Six – Order and conclusion
[86] An order will go as follows:
a) Statutory findings are made as set out by the society on the top of page two of their protection application, pursuant to subsection 47 (2) of the Act.
b) The child is found to be in need of protection pursuant to clause 37 (2) (b) of the Act.
[87] The court wishes to emphasize that this decision was only about whether the child was in need of protection. It was not about whether the child should be returned home.
[88] During this trial, the court heard evidence that the child misses her mother and brother and wants to go home.
[89] The court also heard evidence that the access visits between the mother and the child have been excellent and that the mother has been very cooperative with the society. Mr. Tran testified that except for the mother’s lack of support of the child’s allegations, the society has no concerns about the mother’s parenting abilities.
[90] The court heard that the father has returned to work and is staying in Montreal most of the time.
[91] It is also apparent that some therapeutic intervention is required with respect to the father/child relationship. The court is encouraged that this relationship has been improving.
[92] Given this evidence, there appear to be viable solutions to the disposition issue and the court trusts that counsel will use this short adjournment period to work on these solutions, so that the child’s placement is settled before the school year begins.
[93] This case will return to court for a case conference on the issue of disposition on August 29, 2012 at 9:00 a.m.
[94] I thank counsel for their professional presentation of this case.
Date: August 7, 2012 _____________________________
Justice Stanley Sherr
[^1]: The parties agreed that the court should watch the videotape of the child’s interview with the police in advance of the hearing and this was done. [^2]: The court did not hear details of the allegations of sexual harm. [^3]: The child pointed to her upper leg and arguably this could have been interpreted as being hit on her behind. [^4]: The child had a very good report card in grade one and was described by her teacher on the report card as a warm and caring student who always approaches new learning experiences with confidence and eagerness. [^5]: The child emphasized her mother as the person who most loved and cared for her during this game. [^6]: At the outset of the trial, counsel for the parents stated that the parents were no longer taking the position that the child was lying about her disclosures (their position taken at the trial management conference); however the mother’s evidence indicated that she still felt otherwise. [^7]: The mother told Mr. Tran that the child is a liar and the society shouldn’t believe anything that she says.