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.
45.— (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.
45.— (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 and Parties
Court File No.: C57225/12
Date: 2012-10-24
ONTARIO COURT OF JUSTICE
TORONTO NORTH FAMILY COURT
BETWEEN:
JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO
Sara Westreich, for the APPLICANT
APPLICANT
- and -
H.B.S. and J.Z.
RESPONDENTS
Counsel:
- Brian Ludmer, for the Respondent, H.B.S.
- Sheri Hirschberg, for the Respondent, J.Z.
- Sheldon Wisener, on behalf of the Office of the Children's Lawyer, for the children, M.S. and J.S.
Heard: October 22, 2012
Justice: S.B. Sherr
ENDORSEMENT
Part One – Introduction
[1] Jewish Family and Child Service of Greater Toronto (the society) has brought an amended notice of motion, seeking an order placing the children, M.S., age 9, and J.S., age 7, (the children) in the temporary care and custody of their mother, the respondent, J.Z. (the mother), subject to detailed terms of society supervision. The society seeks an order that the respondent H.B.S. (the father), have access to the children in their discretion. They also seek terms of supervision for the father, including terms that he provide full disclosure of his involvement with the criminal justice systems in both Canada and the United States and full disclosure of his treatment records from the State of Utah, where he was involved in a diversionary sexual offender program from 1985 to 1988 arising from a rape conviction.
[2] The mother and counsel for the children, through the Office of the Children's Lawyer, support the society's motion. The mother brought her own motion for the return of the children to her care.
[3] The father opposes the society's motion and brought a motion seeking an order that the children be returned to both parents, subject to terms of society supervision. The father proposes that the children share time with him and the mother on a week-on, week-off basis. He opposes the society's requests for further disclosure of his criminal and therapeutic records.
[4] The parties filed voluminous material for these motions, constituting six continuing motion records, transcripts of questioning of two society workers, factums and case briefs. I will not specifically list the material filed. I read it all. The father also organized two document binders for the court. I read the documents in these binders that his counsel asked that I review.
Part Two – Background
[5] The parents were married in 2002. They separated on April 5, 2012 and continue to live separate and apart. This is the first marriage for both parents.
[6] The parents have no children other than the two children who are the subject of this court case.
[7] The society first became involved with this family on February 23, 2012. The referral was from the Toronto Police Services. The mother had attended at the police station claiming that she was afraid to return home because the father had discovered that she had gone to see a lawyer about a divorce. The father subsequently met with the police and made numerous allegations against the mother, including that she assaults him and engages in inappropriate sexual contact with the children. The police advised the society that the parents have a history of making accusations against the other and then refusing to follow through with police investigations.
[8] The society has remained involved with the family since that time. The parents continued to make multiple allegations about the behaviour of the other to the society.
[9] The mother took the children, left the father and moved into a shelter on April 5, 2012.
[10] The father obtained an order without notice to the mother from the Superior Court of Justice on April 10, 2012, requiring her to return the children to the matrimonial home. The mother moved back into the matrimonial home with the children. The parents continued to complain about the other to the society.
[11] On May 22, 2012, the father was charged with 3 counts of assault and 2 charges of sexual assault against the mother.[1] The father denies the allegations. His criminal release terms prohibit contact with the mother. He had to leave the matrimonial home and live with a surety. His surety was T.J. The father deposed that he began having an intimate relationship with T.J. at this time. The father lived with T.J. until July 6, 2012.
[12] On May 24, 2012, the without notice order was set aside in the Superior Court of Justice. The father was granted a temporary order of day access, with an early return date to court. On May 29, 2012, the parents entered into a consent order. They agreed to share time with the children on a week-on, week-off basis, with the children remaining in the matrimonial home (a nesting order).
[13] On June 8, 2012, the society was advised that there was an entry in the father's police file, for the date July 6, 1994, with references to the Extradition Act (Canada) and forcible sexual assault charges in the United States.
[14] On June 15, 2012, the father had his criminal court bail terms varied to permit the nesting order made in the Superior Court of Justice to take effect.
[15] The father began his week rotation in the matrimonial home with the children on July 6, 2012.
[16] On July 7, 2012, T.J. contacted the police and the society and made disclosures of protection concerns (specifically about sexually inappropriate behaviour) about the parents.
[17] On July 9, 2012, T.J. removed herself as the father's surety.
[18] On July 11, 2012, the father was again able to vary his bail terms. He had obtained a new surety and was permitted to reside in the matrimonial home.
[19] The mother obtained her own apartment and on July 25, 2012, the parties agreed to vary the Superior Court order, effective July 28, 2012, with the alternating week parenting arrangement to continue.
[20] The children were apprehended by the society on July 26, 2012. The protection concerns will be detailed below.
[21] On July 30, 2012, Justice Harvey Brownstone made a temporary, without prejudice order placing the children in the temporary care of the society, with access to the parents to be in the discretion of the society, taking into consideration the advice of the psychiatrist the society is consulting. This order is still in place.
[22] A forensic interview was subsequently conducted on the children. The children did not report any further protection concerns. The society started access with the parents after they received this report. The parents are presently exercising supervised access to the children.
[23] The parties conducted out-of-court questioning of both society workers who have acted as the family service worker for this family. The transcripts of the questioning were filed on this motion.
Part Three – Legal Considerations on Temporary Care and Custody Motion
[24] The legal test for me to apply on this motion is set out in subsections 51 (2), (3), (3.1) and (3.2) of the Child and Family Services Act (the Act) that read as follows:
Custody During Adjournment
51 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in,
(i) a place of secure custody as defined in Part IV (Youth Justice), or
(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.
Criteria
51 (3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with Relative, etc.
51 (3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.
Terms and Conditions in Order
51 (3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child's care and supervision;
(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
[25] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the society has to meet.
[26] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[27] Subsection 51 (3.2) applies to an order being made in accordance with clause 51 (2) (b) for a temporary supervision order. Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056.
[28] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51 (2) (b) of the Act or a removal order pursuant to clauses 51 (2) (c) and (d) of the Act – the issue to be determined in making the non-removal order under clause 51 (2) (b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20.
[29] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
[30] The Act gives priority to the person who had charge of the children prior to society intervention under Part III of the Act (subsection 51 (2) of the Act). There can be more than one person in charge of the children. See: Children's Aid Society of Toronto v. A.(S.) and R. (M.), 2008 ONCJ 348. In the case before me, both parents had charge of the children at the relevant time in their week-about parenting arrangement. Accordingly, in the circumstances of this case, I find that it is appropriate to apply the test set out in paragraph 25 (the two-part test) separately to both parents.
[31] Subsection 51 (7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. Family and Children's Service v. R.O., 2006 O.J. No. 969 (OCJ).
[32] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence. Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).
[33] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children. Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).
Part Four – The First Part of the Two-Part Test
[34] The evidence is overwhelming that the first part of the two-part test has been met against both parents. The court is satisfied that there are reasonable grounds to believe that there is a real possibility that if the children are returned to either of the parents, it is more probable than not that they will suffer emotional and sexual harm as described in clauses 37 (2) (d) and (g) of the Act. These clauses read as follows:
Child in Need of Protection
37 (2) A child is in need of protection where,
(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c);
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
4.1 Sexual Boundaries
[35] The evidence showed that the mother acted in a sexually inappropriate manner with the children. The mother admitted that the children would play with her nipples, grab her breasts and ask for milk, even though she was not breast-feeding either of them. The mother would also shower and bathe with them. The father filed photos of the mother with the children posed in sexually suggestive poses. The children were too old to be engaging with the mother in this manner.
[36] The mother told the society that the children's play with her breasts was a Chinese custom (the mother is of Chinese heritage) – that this is common until children are five years old. She provided no corroboration of this custom. In any event, the children were over 5 years old when this took place. The behaviour was inappropriate and the mother has now acknowledged this.
[37] The society warned the mother about the inappropriateness of this conduct. The mother deposed that she stopped this behaviour once instructed by the society. The father alleges that it continued.
[38] The society was also concerned that the father was showering with the children and about his sleeping arrangements with them. He promised to stop this. The society provided no evidence that the father failed to comply with this request.
[39] Of greater concern to the court is that the father claimed that the mother had been acting in a sexually inappropriate manner with the children for over two years and he did nothing about this. It took the mother's complaint about him to the police in February of 2012 for him to report his concerns.
[40] It is also of considerable concern to this court that the father took these pictures of the mother in sexually suggestive poses with the children and held on to them for two years, not disclosing them to the society until September of 2012. Despite the voluminous material he filed on these motions, he failed to provide an adequate explanation for taking these photographs. The fact that the father took the photos suggests that he shares the blame for them with the mother.
[41] The father claims that he was afraid to disclose the mother's sexual misconduct since the mother would hold the rape conviction over him. However, this fear did not stop the father from making several reports to the police in the past about her conduct. It was not a credible explanation.
[42] It appears at this point that at worst, the father was an active participant in this sexually inappropriate behaviour, and at best, he demonstrated terrible judgment, and failed to protect the children. Either interpretation places the children at risk of sexual harm. The father's conduct is even more concerning when placed in the context of other information the society has learned about him that will be set out below.
[43] The evidence of risk of sexual harm to the children was increased by the reports made by T.J. on July 7, 2012. It appears from the society's case note that T.J. was fearful of the father finding out about her report and wished to remain anonymous. When the society worker told her about the need to protect the children, T.J. came forward with her information.
[44] T.J. reported that the father had told her that the mother would ask the children to suck on her nipples until they became hard and that on one occasion he came home to see one of the children sticking his fingers in his mother's vagina.[2] She advised the police of the photos that the father had taken of the mother and the children, referred to above.
[45] T.J. also reported concerns of conversations she overheard the father having with the children. She experienced these phone calls (set out in paragraphs 43-45 of the affidavit of Sascha Gurwitz, sworn on July 30, 2012) as sexually suggestive. The society was subsequently able to clarify that some portions of these conversations were innocent and misinterpreted by T.J., but not the entire content of these conversations.
[46] T.J. reported that on two separate occasions, her own sons had disclosed that M.S. had grabbed their penises.
[47] Subsequently, T.J. reported to the police that the last time she had intercourse with the father, he stopped midway and asked her, "What would you think of a 10-year-old performing oral on you?" The father denied ever saying this. He termed T.J.'s reports as twisted and distorted. The court was given no reason why the father's surety would make such allegations. This is particularly so since she subsequently provided the father with a positive reference letter for his case in the Superior Court of Justice, describing him as a perfect gentleman, explaining that her withdrawal as his surety was due to pressure from her ex-husband and not attributable to anything that the father had done.
4.2 Father's Pattern of Violent and Aggressive Behaviour
[48] The risk of sexual and emotional harm to the children is significantly increased by the father's troubling history. The father did not initially reveal any of this history to the society and they have learned about this history in increments. Their knowledge about this history remains incomplete.
[49] The court was directed to the Form 35.1 filed by the father in his case in the Superior Court of Justice. In this form, the father reveals that the full extent of his criminal history was being convicted of attempted rape in Utah in 1985.
[50] The society was unaware of the father's criminal convictions at the time of the apprehension. They first learned about the father's criminal conviction for rape on August 2, 2012, when they were contacted by the mother's counselor, who advised them that the mother had disclosed this information during a counseling session.
[51] The society subsequently spoke to the father and learned that he was actually convicted of rape (not just attempted rape) in the State of Utah and that he spent three years in a diversionary sexual offender treatment program at the Utah State Hospital instead of going to jail.
[52] The society asked the father for full disclosure of what had happened in Utah and his treatment records from the diversion program. The father resisted this request. In October of 2012, he provided a one-page letter, and subsequently a short affidavit, from the Superintendant of Utah State Hospital, who was the director of the treatment program when the father attended this program. The letter and affidavit set out that the father was treated for a peer-related rape, that there was no record of inappropriate behaviour or deviancy towards children and that the father was not treated for a mental illness.
[53] The father argued that this history is irrelevant to his parenting today – that was who he was then, not who he is now.
[54] The father did not advise the society that there actually were two charges of sexual assault in Utah in 1984. The society obtained the information about these charges directly from the State of Utah. These records were filed on the motion.
[55] In the first complaint, the father had allegedly gone on a blind date. The father wanted to have sex with this woman. She said no. The father allegedly forced himself on the woman, removed her top and bottom, keeping her pinned down with his weight. She said that the father was striking the floor with a drum stick as he did this. This allegedly happened on June 30, 1984.
[56] The second complaint was from a different woman on July 17, 1984. The complaint says that this woman used to work with the father. She said that the father was making harassing calls to her (a recurring theme in this case). She asked him to stop. One week later, she said that the father knocked on her door uninvited, forced his way into her apartment, kept pushing her, took her pants off and raped her while she fought him.
[57] The father did not provide any information about which of these cases he was convicted on. His position was, "it doesn't matter". He is wrong. It does matter.
[58] The society also learned that the father was convicted in Canada of criminal harassment. The father claimed that this involved his making harassing phone calls to a women (not the same woman he allegedly harassed and raped in Utah) after the breakup of their relationship when he was in his early twenties, that he received a conditional discharge for this offence, and that the incident is now irrelevant. He provided no documentation to substantiate his evidence. He only provided evidence that he no longer has a criminal record in Canada or in Utah.
[59] The society recently received an anonymous package containing a headline from a Toronto newspaper in 1994. Ordinarily, such evidence would have minimal weight, but in the context of this history, its credibility and trustworthiness is enhanced and it creates more concerns about the father. The article reports that the father had been arrested in Toronto as he was sought by police in Utah, on charges of sexually assaulting two women in Utah, two years before.
[60] The father explained that he was released after being arrested by the Toronto police as they learned that the underlying charges for the warrant from Utah had been withdrawn.
[61] Despite requests from the society, the father did not provide any evidence about the nature of these allegations or any documentation that led to the withdrawal of the charges.
[62] This history (and the father's attempts to prevent full disclosure of it) buttresses the reliability of the mother's subsequent allegations of violence by the father.[3] She claims that he physically and emotionally abused her both before and during the marriage. She says that he tied her up and raped her before they were married and insisted on having sex five times each week. She said that the father never assaulted her in front of the children.
[63] The mother set out evidence of extreme controlling behaviour by the father. She said that he would call her up to 30 times per day (similar to past allegations of telephone harassment from other persons), hacked her email, checked her luggage and would interrogate her at work. He would tell her what she could and couldn't do. He would threaten to take the children away from her.
[64] The society worker spoke to the principals of the children's two schools. They both expressed concern to her about aggressive behaviour by the father towards school staff.
[65] M.S.'s principal reported that a female staff member found the father to be intimidating towards her and at one point he attended at her office daily in an effort to have J.S. placed in the school.
[66] J.S.'s principal reported concerns about the father acting aggressively with female staff, including an incident the year before where a teacher felt that he was acting aggressively with her when she was disciplining another student. The principal also related an incident in the spring of 2012, where the father brought court documents to him and was aggressive towards him.
[67] The father deposed that he had intervened when he felt the teacher at J.S.'s school was mistreating the student.
[68] The court notes that T.J. advised the society that she wanted to remain anonymous because she was afraid of the father's reaction.
[69] The final concern about the father's violence came from the father's aunt. The society was discussing placing the children with her. She reported to the society that she and her husband could not do this as they were physically afraid of the father. The aunt expressed fear for the mother and the children if the court places the children with the mother.
[70] The father filed numerous affidavits from family members (as well as his own affidavit), describing this aunt as mean, vindictive, dishonest and estranged from the family. He denied her allegations.
[71] The father has been seeing a psychiatrist for four years. He filed affidavits from the psychiatrist stating that in his opinion the father has no mental illness and poses no risk of harm to the children. The psychiatrist deposed that he was aware of the rape and criminal harassment charges. This evidence had limitations. The psychiatrist is not privy to the full evidentiary record presented to the court. The focus of his therapy has been to support the father. Virtually all of his information is based on self-reporting by the father. He has never interviewed the mother.
[72] The father also filed many affidavits from family, friends and community members attesting to his character and qualities as a parent. I have little doubt that these persons have experienced him in this way. He has been described as very intelligent. It is clear that he presents himself differently to different people. Some people experience him as a dedicated father and a personable figure. Others experience him as intimidating, frightening and dangerous. It is this latter personality that poses the risk of harm to the children.
4.3 Children's Exposure to Domestic Violence
[73] The parents have made multiple allegations about misconduct by the other. It is clear that the children have been exposed to much of their conflict.
[74] The children confirmed to the society that they frequently saw the parents fighting and swearing at one another. They confirmed that they twice saw the mother hit the father with objects. They never saw the father hit the mother.
[75] The conflict between the parents escalated after the society became involved. The children were at risk of emotional harm being exposed to this conflict.
4.4 Cooperation
[76] The evidence shows that the mother was not cooperating with the society prior to the children being apprehended. She did not return phone calls and cancelled meetings. She did not disclose to the society her knowledge about the father's criminal conviction in Utah prior to the apprehension. Her level of cooperation has significantly improved since the apprehension.
[77] The father has also provided limited cooperation to the society. He initially insisted on being present for interviews with the children. He did not disclose his criminal conviction for rape in Utah, his conviction for criminal harassment or the Extradition Act matter until confronted about them by the society. He has only made disclosure about his criminal and therapeutic involvement on his terms, and in an incomplete manner. He has resisted a further exploration of his criminal and therapeutic records.
[78] In light of the evidence provided to the court, and the way it has been revealed, there is no question that the father's complete medical and criminal involvement needs to be fully explored.
[79] The frustration by the parents of the society's investigation increased the risk of harm to the children.
4.5 Needs of the Children
[80] The father showed a lack of insight into the needs of the children by the position he took on this motion. The society asked him to agree to the children being returned to the mother, on a without prejudice basis, on August 30, 2012. The father refused and provided considerable evidence attacking the mother's ability to parent the children that had to be investigated by the society. An adjournment of the society's motion was granted. A second adjournment of this motion was granted at the request of the society on September 14, 2012.
[81] The position of the father was interesting. He supported the children being placed with both parents on a weekly basis. However, when it was suggested that the children be solely placed with the mother, he engaged in a full-out attack of the mother and the risks she posed to them. The argument was incongruent. It seems to the court that either the mother is capable or not capable of caring for the children on a full-time basis. It is not dependent on whether the children are also returned to the father in alternating weeks.
[82] The father argued that the children would be emotionally harmed if only returned to one parent – they would wonder why their father is viewed as dangerous. The father has been aware that the children have been expressing that they are unhappy in society care and want to go home. The father's position appears to the court to be more about preventing the mother from gaining an upper hand in their custody struggle and about his own needs, rather than being about the best interests of the children. It is also more evidence of controlling behaviour, which is a very disturbing pattern to this court. The father's lack of insight into the children's needs increases the risk of emotional harm to the children.
[83] It is apparent that the parents' behaviour has adversely affected the children. The sexualized behaviour of M.S., reported by T.J., was set out above in paragraph 46. The society worker deposed that the father expressed to her ongoing concerns about the children acting out at school prior to the apprehension. According to the father, J.S. had an incident at school where he cut holes in his t-shirt at the nipples and was running around the classroom. The court received evidence of behavioural challenges that the foster parents are having with both of the children. The society indicated that the children's foster home would have to be changed if the court did not place them with the mother.
4.6 Summary
[84] The evidence reveals a disturbing pattern of behaviour by the father. It is not isolated or contained to what happened in the 1980's, as stated by him. The evidence shows that the father was a violent sexual offender at that time. He tried to keep this history from the society and when confronted with it, tried to minimize and contain it. This certainly undermines the reliability of his evidence. There is some evidence of similar sexual violence allegations in 1992 that have not been adequately explained. We have similar allegations of violent sexual behaviour against the mother that took place from 2001 to 2012 and that culminated in the current criminal charges against the father. The father took pictures of the children in sexually inappropriate situations with the mother and claimed to be aware of significant sexual misconduct by her, yet did not protect the children. T.J. reported very troubling comments by the father of a sexual nature and expressed fear of his learning about her reports. There is evidence of aggressiveness to school staff. His aunt and uncle physically fear him. There are also continuing themes of controlling behaviour and harassing telephone calls in this history.
[85] The father claims that he is not the same person he was in 1985. This evidence shows that there is a real risk to the children that this is not the case.
[86] The mother crossed sexual boundaries with the children. She failed to cooperate with the society prior to the apprehension. She shares responsibility with the father for exposing the children to domestic conflict. She failed to report to the society the risks posed by the father, and in doing so failed to protect the children.
[87] The court is satisfied that the society has met its onus and established the first part of the two-part test. This court finds that there are reasonable grounds to believe that there is a real possibility that if the children are returned to either of the parents, it is more probable than not that they will suffer emotional and sexual harm as described in clauses 37 (2) (d) and (g) of the Act.
Part Five – The Second Part of the Two-Part Test – Are Supervision Terms Adequate to Protect the Children?
5.1 The Mother
[88] I find that the supervision terms requested by the society are adequate to place the children in the mother's temporary care.
[89] I continue to have protection concerns about the mother, including:
a) Her sexually inappropriate behaviour with the children.
b) Her continued minimization in her affidavit of the inappropriateness of the photos of her and the children.
c) The lack of evidence of gains she has made in counseling.
d) Her own violence with the father in front of the children and contribution to the domestic conflict.
e) Her judgment in staying so long with the children with the father, in what she describes as a dangerous situation. The court received no evidence about how this is being addressed.
f) The court has concerns with the mother's credibility, although not to the same extent, at this point, as it has with the father's. The father provided credible evidence that the mother was running an illegal business out of her home, despite the mother's claim in her affidavit that these were merely gifts for friends.
[90] These concerns are offset by the following factors:
a) The society reports that the mother has been compliant with sexual boundaries with the children since she was warned about them.
b) The children report no further problems with sexual boundaries with the mother.
c) The mother has shown insight by acknowledging that her behaviour was inappropriate.
d) The mother has been very cooperative with the society since the apprehension of the children and has responded well to society direction.
e) The society has explored her plan for the children and finds it suitable.
f) The mother has appropriate accommodation for the children.
g) The society is satisfied with the mother's supports for the children.
h) The mother, who is a flight attendant, is making arrangements with her employer to work only day flights, to be more available for the children.
i) The mother is willing to ensure that the children go to Hebrew school and extra-curricular activities.
j) The mother is observed to have a warm and loving relationship with the children.
k) The mother is now engaged in counseling.
l) The concern about the children being exposed to domestic violence is now addressed by the separation of the parents and the bail terms prohibiting the father from contacting the mother.
m) The children, and in particular, J.S., are not happy in foster care and want to go home.[4]
n) If not placed with the mother, the children's placement would have to be moved. The court is concerned how this would affect their stability and emotional welfare.
5.2 The Father
[91] The evidence set out the following positive factors about the father:
a) He has a warm and close relationship with the children.
b) He has always been actively involved in raising the children. He was a stay-at-home father, while the mother would often spend several nights away from home at her work.
c) The father received glowing references about his character, parenting and relationship with the children, from many friends, family and community members.
d) The father has been in engaged in therapy for four years and presented very positive evidence from his therapist.
e) The society has no concern with the father's physical plan for the children. He has appropriate housing, strong supports and, with the help of family, can financially provide for the children.
f) The father is very responsive to the educational needs of the children. The children have done well in school.
g) The father has complied with the terms of access to date.
[92] Notwithstanding these positive factors, the protection concerns about the father set out in section 4 above are too profound at this time to safely return the children to his care. Supervision terms are not adequate to protect the children.
[93] This court is very concerned that the father shows absolutely no insight in his material about the protection concerns. He didn't give an inch about any of them. He doesn't acknowledge that photographing the mother and children, holding onto these photos and not reporting significant sexual misconduct was wrong and exposed his children to harm. He takes no responsibility for the domestic conflict he had with the mother and how this conflict exposed the children to emotional harm. He merely blames her. He does not see how his decision to oppose the return of the children to the mother, if they also aren't returned to him, may result in the children remaining in care, causing them emotional pain.
[94] The externalization of blame by the father was a constant theme on this motion. The father felt that the society has conducted a biased investigation. He asked for the first society family service worker to be removed. He was granted this wish. He then had long and bitter complaints about the society and specifically the second family service worker. A significant amount of his voluminous material was dedicated to the injustices perpetrated on him by the society. He clearly perceives himself as a victim. Yet he has been the person who has frustrated the society's investigation into his past.
[95] When faced with the allegations from the school principals, the father blamed the school staff. He claimed that T.J.'s statement that he asked her about having oral sex with a 10-year-old was false. He attacked his aunt's character when she claimed to be afraid of him. He showed no recognition of how some people perceive him.
[96] The father's externalization of blame and lack of insight make him a poor candidate at this point to make the meaningful changes that are necessary to adequately address the significant risk concerns. He is going to have to have a major shift in attitude if he wishes to achieve his goal of having the children reside with him. This court is going to move very cautiously with respect to him.
[97] The father also fails to see how his criminal and therapeutic history is relevant. Faced with the entirety of this evidence, there is much more that the court needs to learn about the father before it can be satisfied that the children will be safe in his care. The evidence reveals disturbing protection concerns that have a consistent sexual overtone. The court remains very concerned about the father's character and the possibility of the children being exposed to violent behaviour and attitudes.
Part Six – Access
[98] Subsection 51 (5) of the Act provides that where an order is made under clause 2 (c) or (d) of subsection 51 (2), the court may order access on any terms that it considers appropriate. [5] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 37 (3) of the Act. I have done this.
[99] I find that, due to the protection concerns set out above, the father's lack of insight about these concerns and the fact that this court requires far more information about him to assess the level of risk he poses to the children, it is in the best interests of the children that the father's access remain in the discretion of the society at this time. At this point, this means that his access will be supervised. I have also considered that the foster parents are reporting to the society that the children are coming home unsettled after their supervised community visits with the father. They report that the children are more oppositional and fighting more with one another. This needs to be further explored by the society. The society can relax the supervision terms if the father is able to produce evidence that mitigate the protection risks. A discretionary order will also permit the society to develop relationships with potential community supervisors for the father.
[100] It is also in the best interests of the children at this time to support and consolidate their placement with the mother. The children have gone through a very difficult time. Given the father's animus to the mother, I am concerned that the father might undermine this placement if his access is not controlled. The society will be able to monitor his behaviour at this point to ensure that this does not happen.
Part Seven – Production of Records
7.1 What the Society is Seeking
[101] The society seeks orders pursuant to section 74 of the Act and rule 19 of the Family Law Rules (the rules) that the father provide the society with the following: his criminal record from the State of Utah, all records pertaining to his conviction and sentencing in Utah, including charging documents, police incident reports, pre-sentencing reports and assessments; all records from his diversionary treatment program in Utah, including assessments, clinical reports and phallometric testing; all records of his criminal charge in Ontario for criminal harassment, including police incident reports, records of his conditional discharge and pre-sentencing reports; records of his withdrawal of charges under the Extradition Act and all records of his current charges for sexual assault, including the information, bail conditions and police incident reports.
[102] The father has already disclosed his criminal record from Utah.
7.2 Legal Considerations
[103] Section 74 of the Act reads as follows:
Record
74. (1) In this section and sections 74.1 and 74.2,
"record" means recorded information, regardless of physical form or characteristics; ("dossier")
"record of personal health information" has the same meaning as in the Mental Health Act. ("dossier de renseignements personnels sur la santé")
Motion or Application, Production of Record
74. (2) A Director or a society may at any time make a motion or an application for an order under subsection (3) or (3.1) for the production of a record or part of a record.
Order
74. (3) Where the court is satisfied that a record or part of a record that is the subject of a motion referred to in subsection (2) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court.
Same
74. (3.1) Where the court is satisfied that a record or part of a record that is the subject of an application referred to in subsection (2) may be relevant to assessing compliance with one of the following and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produce it or a specified part of it for inspection and copying by the Director, by the society or by the court:
An order under clause 51 (2) (b) or (c) that is subject to supervision.
An order under clause 51 (2) (c) or (d) with respect to access.
A supervision order under section 57.
An access order under section 58.
An order with respect to access or supervision on an application under section 64 or 65.1.
5.1 A custody order under section 65.2.
- A restraining order under section 80.
Court May Examine Record
74. (4) In considering whether to make an order under subsection (3) or (3.1), the court may examine the record.
Information Confidential
74. (5) No person who obtains information by means of an order made under subsection (3) or (3.1) shall disclose the information except,
(a) as specified in the order; and
(b) in testimony in a proceeding under this Part.
Conflict
74. (5.1) Subsection (5) prevails despite anything in the Personal Health Information Protection Act, 2004.
Application: Solicitor Client Privilege Excepted
74. (6) Subject to subsection (7), this section applies despite any other Act, but nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.
Matters to be Considered by Court
74. (7) Where a motion or an application under subsection (2) concerns a record of personal health information, subsection 35 (6) (attending physician's statement, hearing) of the Mental Health Act applies and the court shall give equal consideration to,
(a) the matters to be considered under subsection 35 (7) of that Act; and
(b) the need to protect the child.
Same
74. (8) Where a motion or an application under subsection (2) concerns a record that is a record of a mental disorder within the meaning of section 183, that section applies and the court shall give equal consideration to,
(a) the matters to be considered under subsection 183 (6); and
(b) the need to protect the child.
[104] Rule 19 of the rules reads as follows:
19. (1)
Subject to subrule (1.1), every party shall, within 10 days after another party's request, give the other party an affidavit listing every document that is,
(a) relevant to any issue in the case; and
(b) in the party's control, or available to the party on request.
EXCEPTIONS
19. (1.1) Subrule (1) does not apply to the Office of the Children's Lawyer or to children's aid societies.
ACCESS TO LISTED DOCUMENTS
19. (2) The other party is entitled, on request,
(a) to examine any document listed in the affidavit, unless it is protected by a legal privilege; and
(b) to receive, at the party's own expense at the legal aid rate, a copy of any document that the party is entitled to examine under clause (a).
ACCESS TO DOCUMENTS MENTIONED IN COURT PAPERS
19. (3) Subrule (2) also applies, with necessary changes, to a document mentioned in a party's application, answer, reply, notice of motion, affidavit, financial statement or net family property statement.
DOCUMENTS PROTECTED BY LEGAL PRIVILEGE
19. (4) If a party claims that a document is protected by a legal privilege, the court may, on motion, examine it and decide the issue.
USE OF PRIVILEGED DOCUMENTS
19. (5) A party who claims that a document is protected by a legal privilege may use it at trial only,
(a) if the other party has been allowed to examine the document and been supplied with a copy, free of charge, at least 30 days before the settlement conference; or
(b) on the conditions the trial judge considers appropriate, including an adjournment if necessary.
DOCUMENTS OF SUBSIDIARY OR AFFILIATED CORPORATION
19. (6) The court may, on motion, order a party to give another party an affidavit listing the documents that are,
(a) relevant to any issue in the case; and
(b) in the control of, or available on request to a corporation that is controlled, directly or indirectly, by the party or by another corporation that the party controls directly or indirectly.
DOCUMENTS OF OFFICE OF THE CHILDREN'S LAWYER OR CHILDREN'S AID SOCIETY
19. (6.1) The court may, on motion, order the Office of the Children's Lawyer or a children's aid society to give another party an affidavit listing the documents that are,
(a) relevant to any issue in the case; and
(b) in the control of, or available on request to, the Office of the Children's Lawyer or the children's aid society.
ACCESS TO LISTED DOCUMENTS
19. (7) Subrule (2) also applies, with necessary changes, to any document listed in an affidavit ordered under subrule (6) or (6.1).
DOCUMENTS OMITTED FROM AFFIDAVIT OR FOUND LATER
19. (8) A party who, after serving an affidavit required under subrule (1), (6) or (6.1), finds a document that should have been listed in it, or finds that the list is not correct or not complete, shall immediately serve on the other party a new affidavit listing the correct information.
ACCESS TO ADDITIONAL DOCUMENTS
19. (9) The other party is entitled, on request,
(a) to examine any document listed in an affidavit served under subrule (8), unless it is protected by a legal privilege; and
(b) to receive, free of charge, a copy of any document that the party is entitled to examine under clause (a).
FAILURE TO FOLLOW RULE OR OBEY ORDER
19. (10) If a party does not follow this rule or obey an order made under this rule, the court may, on motion, do one or more of the following:
Order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge.
Order that a document favourable to the party's case may not be used except with the court's permission.
Order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.
Dismiss the party's case or strike out the party's answer.
Order the party to pay the other party's costs for the steps taken under this rule, and decide the amount of the costs.
Make a contempt order against the party.
Make any other order that is appropriate.
DOCUMENT IN NON-PARTY'S CONTROL
19. (11) If a document is in a non-party's control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
[105] The court's authority under subsection 74 (3) of the Act is discretionary. The court may order the production of evidence that may be relevant, but it is not required to do so. Children's Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100.
[106] The phrase "may be relevant" is not an onerous test. Children's Aid Society of Algoma v. P. (D.), [2007] O.J. No. 3601 (SCJ). The society requires full disclosure to properly meet its mandate to investigate protection concerns. Some courts have defined the test as meaning a "semblance of relevance". A document may be relevant for production and investigation purposes, but may not be admissible at trial. Nova Scotia (Minister of Community Services) v. B.L.C., 2007 NSCA 45.
[107] The test for disclosure in s. 74 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39. See: Native Child and Family Services of Toronto v. P. (Sherry) et al., 2009 ONCJ 473.
[108] Where the best interests of the child at are issue, the court has a positive obligation to ensure that the most helpful and relevant information is before the court. Children's Aid Society of London and Middlesex v. K. (S.) (2006) CarswellOnt 4027 (SCJ); Catholic Children's Aid Society of Toronto v. R. (L.), 2005 ONCJ 19.
[109] Police records, notes and incident reports are relevant under subsection 74 (3) of the Act. Children's Aid Society of Thunder Bay (District) v. D. (S.), supra.
[110] A person has possession or control of a document if they can obtain the document from a third party by making a request. The court may compel that person to produce that document rather than forcing the other party to make a third party production motion. Michaud v. Cormier [2009] N.B.J. No. 182 (N.B.Q.B.).
[111] The court does not weigh privacy interests in a section 74 hearing other than the privacy interests already provided for in the section. Children's Aid Society of Algoma v. P. D., [2006] ONCJ 170.
7.3 Analysis
[112] Counsel for the society skillfully set out in her submissions many of the unanswered questions about the father, including:
a) For which of the two charges in Utah was he convicted?
b) Was one of the charges withdrawn? Was there a statement of agreed facts?
c) On what basis was he admitted to the diversion program for sexual offenders?
d) On what basis was he discharged from the diversion program?
e) Was he released on parole? What were his conditions of release? Did he comply with the conditions?
f) Was there any psychological or psychiatric report conducted on the father that may give us guidance about him? What tests were conducted on him?
g) When was he convicted of criminal harassment? What were the actual allegations? Were there overtones of violence in the allegations? Was there an agreed statement of facts that was filed? Does this behaviour tie in to a pattern of violent behaviour?[6]
h) What were the allegations from the State of Utah which resulted in his arrest under the Extradition Act? Were the allegations similar to prior incidents? Do they contribute to a pattern of sexual violence? Do the records show why these charges were withdrawn? When were they withdrawn? Did the warrant relate to parole terms?
[113] The father took the position that the information he provided from the Superintendant of the Utah State Hospital and his production of his current Utah and Canadian criminal record is sufficient evidence for this court. This court strongly disagrees with this position. The father's history of violence with sexual overtones dictates that his entire criminal and therapeutic history should be an open book for the court to examine to ascertain the level of risk that he poses to the children. These documents easily pass the low evidentiary threshold of "may be relevant", set out in subsection 74 (3) of the Act. The protection and safety of the children trumps any privacy interest asserted by the father. It is not acceptable for these children that this court make important decisions about their future with these gaps in the evidence and unanswered questions.
[114] Section 74 of the Act has generally been used by the society as a vehicle to obtain records from third parties for investigative purposes. However, I see nothing in the section that would preclude the society from applying this section to obtain documents from a party to a case. Subsection 74 (3) speaks of obtaining documents from any person – a party can be such a person.
[115] In this case, the society does not have the option of using Section 74 of the Act or subrule 19 (11) of the rules to obtain third party documents from authorities in Utah.[7] This court has no authority to compel the production of such documents from institutions in the United States. It only has the authority to make orders about the father's production of these documents.
[116] The father concedes that he can obtain the documents from the diversion program in Utah upon request. He is unsure if he can obtain the criminal records from Utah if requested. However, there is no reason why he cannot make this request from them or execute any necessary release or authorization for the society to obtain these records. I find that he has possession or control of these records as defined in subsection 74 (3) of the Act. He is the only person in this case capable of obtaining these documents. To date, he has refused to produce these records to the society. Lastly, the Superintendant from Utah State Hospital provided no evidence that would invoke the procedure set out subsection 35 (6) of the Mental Health Act.[8] It is appropriate to order the father to take steps to obtain this disclosure.
[117] The father also has the ability to obtain his records requested by the society from sources in Ontario and has refused to disclose them to date. It is appropriate to order him to provide this disclosure as well.
[118] In the alternative, the society is entitled to the records requested pursuant to Rule 19 of the rules. I find that these documents are relevant to the issues in this case and in the father's control, or available to him on request (see: subrule 19 (1)). The society made a request for these documents and the father denied their request.
[119] The protection, safety and best interests of the children dictate that the society and the court have full disclosure of the father's therapeutic records from Utah. These interests take priority to any claims for privacy or privilege. See: R. v. S. (R.J.), [1985] O.J. No. 1047 (CA); Porter v. Porter, [2009] O.J. No. 1638 (SCJ); Godwin v. Bryceland, 2008 ONCJ 495, [2008] O.J. No 4039 (OCJ).
[120] The father expresses concern that the contents of his records will leak into the community and be shared with the children. He is also concerned that they will be used in other court proceedings. Subsection 74 (5) of the Act provides for confidentiality of this information. I will also place other restrictions on the information to address the father's concerns.
Part Eight – Conclusion
[121] An order will go on the following terms:
a) The children will be placed in the temporary care and custody of the mother, subject to society supervision on the terms set out in paragraphs 4-22 of the society's amended notice of motion dated October 11, 2012.
b) Temporary access between the children and the father and any other family members shall be in the discretion of the society, not less than once each week for the father. The society shall determine the level of supervision required for these visits.
c) The father shall provide the society with copies of the documents set out in clauses (b)-(f) of paragraph 24 of the society's notice of motion dated October 11, 2012. He shall directly request these records from the relevant third parties and sign any releases or authorization requested by the society for them to obtain these documents directly from them. He shall immediately provide proof of these requests and any response to these requests, upon receipt, to the society.
d) The parties shall comply with the confidentiality requirements set out in subsection 74 (5) of the Act, with respect to the records ordered to be produced by the father.
e) Copies of the records shall be provided to the mother's counsel. She can review them with her client, but shall not make copies of the documents or release them to the mother.
f) The parties are not to release the documents to any person other than any professional retained by them to assist in the litigation or assess the evidence.
g) The parents are not to discuss the contents of these records with the children.
[122] The parties need to give serious thought as to next steps in this case. I have made it clear that the father must provide full disclosure of his past to be able to move forward in his goal to reunite with the children. Consideration should be given to an independent assessment of the father once this disclosure is obtained.
[123] It was very evident in this case that the communication between the father and the society is poor. It is incumbent on both parties to improve this. I suggest that counsel and their clients arrange a meeting to discuss all concerns prior to the next court date.
[124] This case is adjourned until December 13, 2012 at 10:00 a.m. for a case conference to discuss the next steps in this case. This case conference will not exceed thirty minutes. No further motions or affidavit material shall be filed with the court without my prior leave. Enough material has been filed already. This appearance will be focused on solutions, not further allegations. A short updated case conference brief should be filed by each party. In the event that any counsel is not available on this date, a new date can be coordinated, on consent of all parties, with the trial coordinator.
[125] I thank counsel for their presentation of this difficult case.
Justice S.B. Sherr
Released: October 24, 2012
Footnotes
[1] The father had called the police to the family home on May 21, 2012, expressing his concern that the mother was having the children play with fireworks. The mother was interviewed by the police and criminal charges were subsequently laid by the police against the father.
[2] The father denied telling T.J. this, stating that he told her that the children would touch the outer portion of the mother's vagina and that he never told her that the mother would ask the children to suck on her nipples until they became hard.
[3] This is not a finding that these incidents took place as described by the mother. However, the allegations, when combined with the other evidence, constitute very serious protection concerns.
[4] Counsel for the children put on the record that the children love and miss their parents and want to return home to both of them. He did not, however, support the return of the children to the father.
[5] This case is unusual in that an order under clause (b) of subsection 51 (2) was made in favour of the mother, but not the father. With respect to the father, though (another person in charge), the mother would be "another person" as set out in clause (c) and this would trigger subsection 51 (5) of the Act as the applicable access test for the father. If I am wrong about this analysis, the applicable section for access for the father would be set out in section 58 of the Act and the test would be what access order is in the best interests of the children. There appears to be little practical difference in the access tests set out in subsection 51 (5) and section 58 of the Act.
[6] At this point we only have the father's version of this event, without corroboration.
[7] The society explored this option and found that obtaining a third party production order would not facilitate production of these records.
[8] The former director of the father's treatment program did not indicate that disclosure of the documents would cause the father emotional harm. The father also did not assert this would be the case. His concern was about his privacy rights and the use of the information. Subsection 35 (6) of the Mental Health Act reads as follows:
35 (6) Where the disclosure, transmittal or examination of a record of personal health information is required by a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court of competent jurisdiction or under any Act and the attending physician states in writing that he or she is of the opinion that the disclosure, transmittal or examination of the record of personal health information or of a specified part of the record of personal health information,
(a) is likely to result in harm to the treatment or recovery of the patient; or
(b) is likely to result in,
(i) injury to the mental condition of a third person, or
(ii) bodily harm to a third person,
no person shall comply with the requirement with respect to the record of personal health information or the part of the record of personal health information specified by the attending physician except under an order made by the court or body before which the matter is or may be in issue after a hearing from which the public is excluded and that is held on notice to the attending physician.