WARNING
The court hearing this matter directs that the following notice 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.: C69/14 Date: 2015-02-13
Ontario Court of Justice
Re: Applicant: Halton Children's Aid Society
Respondent: P.C. (mother) Respondent: D.A.A. (father) (present but previously noted in default) Respondent: M.C. (maternal grandmother) Respondent: B.C. (maternal grandfather)
Before: Justice Victoria Starr
Counsel:
- Diane Skrow, for the applicant society
- Kathie Bennett – HCAS worker
- Sidney Hagler (not present), for the respondent mother, P.C.
- Steven Foster, for the respondent grandmother, M.C. & maternal grandfather, B.C.
- Rasim Misheal, for the child S.C.
Heard: January 29, 2015
ENDORSEMENT
INTRODUCTION
[1] This is the Court's decision on a temporary care and custody motion. The issues to be decided are:
a) Whether the child's placement should be subject to supervision by the society;
b) If so, whether as a term of the temporary supervision order, the maternal grandfather should be prohibited from being left alone with the child and from sleeping in the family residence at night; and
c) Whether the child should remain in the maternal grandmother's temporary care and custody or in the temporary care and custody of both grandparents.
BACKGROUND
[2] The child, 13 year old S.C. ("the child" or "S.C."), born […], 2001, has lived with and been cared for by the respondents, M.C. and B.C. ("the grandmother", "the grandfather", or collectively, "the grandparents") since she was six months old. M.C. is the child's maternal step-grandmother and B.C. is her maternal grandfather. They were granted final custody of the child by order of Justice R. Zisman dated July 9, 2007. The respondent, P.C., is S.C.'s mother ("the mother").
[3] An allegation was made by a 13 year old girl in March of 1994 that the grandfather had sexually abused her when she was 9 years old. In 2004, when the mother was 22 years old, she disclosed that when she was 16, the grandfather, her father, had sexually abused her. She reasserted her allegation in the summer of 2013. On September 24, 2013 the grandfather was charged with sexual assault and sexual exploitation of the mother. At least three other women have since come forward alleging that they too were sexually abused by the grandfather when they were young girls. No charges have been laid as a result of the allegations made by the four other alleged victims. The grandfather signed an undertaking in the criminal matter that states that he is to have: "no contact with any person under the age of 16 unless they are in the direct care of their parent or guardian."
[4] The Halton Children's Aid Society brought its motion in early January 2014. At that time it sought an order that the child remain in the temporary care and custody of her grandmother, subject to certain terms and conditions. Two of those conditions were that the grandfather not be left alone with the child and that he not sleep at the family home at night. Their motion has been on adjournment for over a year as a result of an out of court understanding or agreement reached between the grandparents and the Society that the grandfather would not be left alone with the child and would not sleep in the family home at night.
[5] For over a year the grandfather has been sleeping every night at some place other than in his own home. This has put stress on the family unit and in particular, the child. It is not clear how much longer this is going to go on for. Although his criminal trial is expected to end in May 2015, there may be a delay in the release of the trial judge's decision and no one knows how much of a delay there may be. There is also no assurance that even if he is found not guilty, the Society will change its position on these particular conditions. He wants to go home. His wife wants him home. The child wants him home and for the family to resume normal life again. The grandparents believe that the grandfather can return home full time and be alone with the child, despite his undertaking in the criminal matter. The grandparents brought a cross motion therefore seeking to have the child remain their temporary care and custody without supervision, or in the alternative, subject to whatever terms and conditions the court sees fit. They also seek an order authorizing the grandfather to sleep in the family residence.
[6] No submissions were made by either party with respect to any of the other terms of supervision originally requested by the Society and set out in their plan of care dated January 28, 2014.
POSITIONS OF THE PARTIES
[7] Despite the specific relief sought by the grandparents in their notice of motion, at the hearing, the position taken by their counsel was that the grandfather poses no risk to the child and thus she should remain in the care and custody of the grandparents jointly without any terms of supervision. The thrust of his argument was that:
a) No weight should be given to the evidence presented by the Society with respect to the allegations made by any of the women who have come forward including the mother, because there is no sworn evidence from any of the alleged victims. This includes from the mother who is a party to these proceedings, has been participating all along, and was present for the hearing of these motions. In other words, there is no direct evidence from the alleged victims setting out the nature and details of what the grandfather is alleged to have done to them;
b) There is no evidence that the grandfather has sexually abused the child;
c) The grandfather should be presumed by this court to be innocent until proven guilty;
d) The order requested by the grandparents is in the child's best interest. When reframed to fit into a risk analysis, I understand his argument to be that the grandfather's absence from the home at night and his inability to be alone with the child is causing such stress on the child and its continuation threatens her continued emotional well-being.
[8] The Children's Lawyer ("OCL") supported the grandparent's position on the same grounds and on the basis that the order being requested is consistent with the views and preferences of the child.
[9] The OCL and grandparents counsel both argued in the alternative, that the only term of supervision should be that a loop or chain lock be installed on the inside of the child's bedroom and utilized by her at night to prevent the grandfather from getting into her bedroom at night.
[10] The Society says S.C. is at risk of being sexually abused by her grandfather. Specifically, it is not in agreement with the plan for the grandfather to return to the family home full-time, even with or without the lock condition, for the following reasons:
a) It sends the message that the society is supportive of children having to take responsibility for protecting themselves;
b) If the lock is not utilized by S.C. and something happens, the child would blame herself for her failure to lock the door;
c) Using a lock on the child's door creates negative memories of the child previously being locked in a room by her stepmother;
d) If there were ever a fire in the family home during the night and the child needed to get out of her room quickly, a chain or loop lock could interfere with her ability to do so;
e) S.C. would not be in the direct care of her grandmother if the grandmother is sleeping which is required pursuant to the grandfather's undertaking.
THE LAW
[11] The relevant sections of the Child and Family Services Act, R.S.O. 1990, c. C-11 as amended are 51(2)(a), 51(2)(b), 51(3), and 51(3.2) which provide 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;
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). 1999, c. 2, s. 13.
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. 2006, c. 5, s. 8 (3).
[12] Under the Child and Family Services Act, any time a hearing is adjourned, the court must address the temporary placement of the child. As I have noted, in this case, both parties consent to S.C. remaining in the temporary care and custody of her maternal grandmother (although the grandparents ask that she remain in their joint care and control). The only real issue is whether that placement should be with or without the supervision of the Society and if subject to supervision, whether to grant the Society's request that a term and condition of that supervision be that grandfather not be permitted to sleep in the home at night and that he not be left alone with S.C.
[13] There is no specific test for the imposition of an order under clause 51(2)(a) or clause 51(2)(b) of the Act or the conditions and terms pursuant to the supervision order. The onus is on the Society to satisfy the court 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 adequately protected by an order returning the child to parental care with or without an interim supervision order.
[14] As noted by Justice S.S. Bondy, J. in the case of Windsor-Essex CAS v. Sarah B. 2007 ONCJ 288, 2007 OJ No. 2700, at paragraphs 16 and 17:
- … is no judicial consensus relating to the issue of the interim test before me under clause 51(2)(a) or clause 51(2)(b). Some judges describe it as the demonstration of reasonable and probable grounds to believe that a child may or is in need of protection. Others describe it as something less stringent than substantial risk and more demanding than best interests. (Note that the test under the predecessor section 47 - now section 51 - used the language of "substantial risk" rather than "likely risk of harm"). Others describe the test as a reference to section 1 and subsection 37(3) of the Act, promoting best interests, welfare and paramountcy of the child. Others refer to an "adequacy of protection and proportionality" argument pending adjudication of the issue of protection.
17 Under these circumstances, perhaps it might be best to put the test as follows: Can it be said that the conditions are such that the criteria found under subsection 51(3) can be met? If so, the appropriate interim order under clause 51(2)(c) or clause 51(2)(d) should then issue. If not, then an order under clause 51(2)(a) or clause 51(2)(b) should apply. I tend to prefer the language of the court in Children's Aid Society of Niagara Region v. Liza Marie M., supra:
[15] It is always worth remembering that, under section 51, the court is not ruling on whether a child is in need of protection but, instead, is simply determining what order will satisfy the test in subsection 51(3) until such time as the protection application is heard.
[15] Put another way, the test to apply is the subsection 51(3) test modified: There must be reasonable grounds to believe that without supervision terms it would be more probable than not that the child would suffer harm while placed with the grandparents.
[16] The onus is by its nature not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: "reasonable" grounds, a "risk", and "likely" harm, and "adequate" protection for the child. This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting S.C. in that short term. Children's Aid Society of Dufferin County v. A.T., 2011 ONCJ 52.
[17] This still leaves the issue of what are the appropriate terms and conditions relating to the child's supervision that should be attached to an order under clause 51(2)(b). On this point Justice S.S. Bondy, at paragraph 21, had this to say:
21 Clearly, there generally seems to be consensus then that interim terms of supervision must be consistent with the legislative scheme of conditions that are reasonable relating to the child's supervision as the court considers appropriate - clause 51(2)(b) - and proportionate or commensurate with the need shown by the evidence.
[18] The requirement that the interim protection terms imposed be proportionate to the need shown by the evidence is also confirmed in the case of CAS Toronto v. M.A., 2002 O.J. No. 1432 (OCJ).
[19] I adopt and apply both tests. Bearing in mind these tests, I have addressed my mind, at this temporary stage, I turn to the application of these tests to the evidence I have referred to above.
ARE THERE REASONABLE GROUNDS TO BELIEVE THAT THERE IS A RISK THAT THE CHILD IS LIKELY TO SEXUALLY ABUSED BY HER GRANDFATHER?
The Evidence
Evidence of the Grandfather's Sexual Abuse of Five Young Girls
[20] The only evidence before the court with respect to the risk the grandfather poses to the child is the hearsay (and in some instances double and triple hearsay) evidence of child protection worker, Lisa Potts. That evidence is set out in her affidavit sworn January 28, 2014. I have set out the most significant portions on this issue below.
[21] In March of 1994 it was reported to the Society that a young girl who was a family friend of this family disclosed that she had been sexually assaulted by the maternal grandfather when she was nine years old. At the time when she made the disclosure, the girl was 13 years old. The Society commenced an investigation into the sexual assault allegations however it subsequently closed its file as the young girl/victim did not wish to pursue the matter.
[22] In 2004, at the age of 22, the mother disclosed that she had been a victim of sexual assault by her father, the grandfather, when she was 16 years old; the Society investigated the reported concerns. The grandfather denied allegations of sexual abuse. The Society closed its file because it deemed that S.C. was safe due to her age (3 at the time).
[23] In July 2013, the mother reasserted her allegations of abuse at the hands of her father, S.C.'s grandfather.
[24] On July 3, 2013, the Society received a report from a professional in the community [a therapist], who reported that her client disclosed a historical sexual assault, which involved the maternal grandfather as the alleged perpetrator and which occurred when she was 15 years old. This individual/victim who is now an adult, wanted to remain anonymous and expressed concern for S.C. being in the care of the grandfather. The Society investigated the allegation, primarily as it pertained to S.C.'s safety. During the investigation, the child expressed having a positive relationship with both of her grandparents and did not express any concerns about her grandfather's behavior. S.C. was deemed to be safe in the grandparents care and the file was closed.
[25] This last referral was also being investigated by the Halton Regional Police service who continued their investigation after the Society closed its file. On September 6, 2013 Detective Constable Campbell of the Child Abuse and Sexual Assault Bureau of the Halton Regional Police Service reported to the Society (Ms. Potts), that he was investigating the maternal grandfather for historical sexual offenses and that the alleged offenses involved five females.
[26] Detective Constable Campbell advised Ms. Potts that during the police investigation the five female victims, who are now adults and have requested anonymity, reported that:
a) They were worried that S.C. was at risk being in the care of the maternal grandfather;
b) They were sexually assaulted by the maternal grandfather when they were between the ages of 9 years to 17 years of age;
c) The sexual assaults took place in bedrooms, his vehicle, and other areas of the house;
d) The maternal grandfather had an erection, which was felt through his clothes, when he pulled one of the victims onto his lap;
e) He put his hand on one of the victim's bare vagina;
f) He took one of the victims to a bedroom and fondled her breasts and vagina over top of her clothes; he said if she told anyone, no one would believe her;
g) The victim was asleep and was awakened by the maternal grandfather touching her bare vagina;
h) The victims did not want S.C. to have a similar experience;
i) He used his hand and mouth to touch the victim's bare breast;
j) He digitally penetrated one of the victim's vagina;
k) Often other adults were in the home at the time of the sexual assaults, but not in the same room that the sexual assaults took place;
l) The victim was asleep and was awakened by the maternal grandfather putting his hand under her shirt and playing with her bare nipple; and
m) The victim was sleeping and woke to the maternal grandfather touching her vagina over her nightgown with his hand.
[27] Detective Constable Campbell reported to Ms. Potts that the victims reported the allegations to the police independently, without knowledge that other victims had also disclosed, and that the victims corroborated each other's allegations of the historical sexual assault by the grandfather.
[28] According to the grandmother's evidence, the Crown sought to introduce similar fact evidence from three of the other women who claim they were abused by the grandfather as children but the request was denied by the court in the criminal proceedings.
No Evidence that S.C. has been Sexually Abused by her Grandfather
[29] There is no evidence that the grandfather has sexually abused or even acted inappropriately with S.C. S.C. has had a lawyer for several months now; she has undergone a trauma assessment; she is in ongoing counseling; and she has been interviewed on a monthly basis by the child protection worker. At no time has S.C. said anything that would support the conclusion that grandfather has acted inappropriately with her or which could give rise to a concern that he may do so. In fact, S.C. has consistently denied any sexual abuse by her maternal grandfather. The information provided by the child protection worker, the trauma report, the OCL, and the therapist all confirm this.
[30] Also filed in support of the motion was an affidavit sworn by Andrea Bucci, the law clerk employed by S.C.'s lawyer, R. Misheal. That affidavit makes clear that S.C.'s statements do not appear at all to result from any manipulation from outside sources and at all times she has maintained that her grandfather has never hurt her, or done anything bad to her.
[31] To use the counsellor's words, there is "zero indication that S.C. has been abused by her grandfather".
Analysis
[32] For the reasons that follow I have concluded that there are reasonable grounds to believe that without supervision it would be more probable than not that S.C. would be sexually abused by her grandfather and thus, suffer harm while being placed with her grandparents, particularly if such placement is not subject to the Society's supervision.
[33] As counsel for the grandparents pointed out, I have no direct evidence from the mother, the maternal grandfather, or any of the alleged victims. Subsection 51(7) of the CFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In this case I admit and act upon the evidence of Ms. Potts and by extension, Detective Constable Campbell. I find them to be trustworthy and credible sources of information. In this regard, I note that I have been offered no reason to doubt the credibility and trustworthiness of either Detective Constable Campbell or Ms. Potts. No one asserted in the evidence or in argument that either of them was not trustworthy and credible. As such, I find their accounting of what has been reported to them reliable.
[34] In finding that there are reasonable grounds to believe that S.C. is more likely to be sexually assaulted by her grandfather I have had regard to the nature of the alleged historical incidents of abuse - the age of the alleged victims, where and when these alleged assaults occurred, and the details of what occurred. All of the girls are alleged to have been the ages of 9 and 17. S.C. is 13 which places her smack in the middle of the age range of victim the grandfather is alleged to prefer. Several of the incidents appear to have occurred at night, while the girls were sleeping, and in the bedroom where the girls were sleeping. In addition several incidents appear to have occurred while other adults were around but not directly supervising the girls.
[35] Several other factors lend credibility to the accounts of the victims and thus form the basis for my belief. There is Detective Constable Campbell's report that the victims came forward with their allegations independently, without knowledge that other victims had also disclosed, and that the victims corroborated each other's allegations of the historical sexual assault by the grandfather.
[36] There is also the fact that the grandfather has been charged criminally with historical sexual offenses related to his daughter, S.C.'s mother and that the matter is proceeding to trial.
[37] The foregoing when considered as a whole is evidence of a pattern of behaviour that is of concern to the Court, particularly with children where the grandfather is in a position of trust. How much weight will ultimately be given to this evidence, given the lack of specific details and the lack of direct evidence from any of the alleged victims will be determined by the trial judge who will have the benefit of both hearing the evidence firsthand including cross-examination. At this point, on a motion, when the threshold or burden on the Society is so low and hearsay evidence admissible as long as it is credible and trustworthy, the evidence is sufficient for the Court to form a reasonable belief that there is risk that S.C. will be sexually abused by her grandfather and that the a risk to S.C. is heightened at night, while she is in her bedroom, sleeping and not in direct care of an adult other than her grandfather. For the purposes of this temporary care and custody motion, the Society has met its burden.
[38] I am frustrated by the fact that the Court has less information about the alleged assaults than everyone else. I place no weight on the fact that the similar fact evidence was not admitted in the criminal proceeding. This could have been for a myriad of reasons having nothing to do with the credible and trustworthiness of the evidence. Without the decision or the transcript of the oral reasons for ruling, I can draw no inference one way or the other from the fact that the motion was dismissed.
[39] I am not persuaded at this early stage by the grandmother's evidence that the mother has made up the allegations of her father's sexual abuse of her and has garnered other women to make similar false allegations, or, by her statement that these allegations first came to light in July 2013. I am not persuaded for several reasons: First, and most significantly, the first allegation was made in March of 1994 when it was reported to the Society that a young girl who was a family friend of this family disclosed that she had been sexually assaulted by the maternal grandfather when she was nine years old (at the time of the disclosure she was 13). This allegation was made 20 years ago by a 13 year old girl. In no way can or has this allegation been attributed to the mother, her supposed bid for custody, or her desire to seek retribution against the grandparents for taking S.C. from her. S.C. was not even born at that point and the allegation was made a year before the mother's. Second, in one instance the first contact between one of the women and the police came as a result of a call placed by the woman's therapist, not the woman herself. Third, the first time the mother's allegation that her father had sexually abused her as a child was in 2004, over 10 years ago. It did not come to light and was not made in July of 2013 as the grandmother's evidence suggests. It cannot be said that this allegation was only made after the mother redoubled her efforts in 2013 and met with friction and resistance from the grandparents to her desire to re-establish a relationship with S.C.
[40] I have also considered the grandfather's blanket denial, made through the grandmother, but put little stock in it. He had an opportunity to put a more complete set of facts to support his position that the allegations are all lies or to at least put forward the details of his defense to those allegations. His wife, and therefore most likely he, know more details about the allegations than is in evidence before me and as well, who the alleged victims are. Here I refer to: the similar fact evidence that the grandfather would have to have known details of in order to argue the motion dealing with its admissibility; the grandmother's evidence that that she has no idea why "Nancy" came forward; the grandmother's reference to the allegations (at least some of them) having been made by P.C. and her sisters; and, her statement that it is not plausible that these women would all have come forward around the same time (July 2013) unless the police were told by family members to contact them. The grandfather could have put evidence before me responding to the allegations and which could have cast doubt on the credibility and trustworthiness of the Society's evidence about the nature of the allegations. He chose not to do so, not even through the grandmother.
[41] Further, the grandfather could have put forward the transcript or written decision of the criminal judge's ruling on the similar fact evidence and pointed out to this Court why it should be given no weight (i.e. How it is unreliable, dissimilar, or so coincidental that its probative value is outweighed by its prejudice). He could have cross-examined the Society worker who submitted affidavits in support of the motion, or ask for leave to have the detective or the alleged victims whose names are known to him attend to give oral evidence at this hearing. He could also have undergone phallometric testing or the sexological assessment that the Society requested of him back in January 2014 and put that evidence before me. He has chosen to do none of these things in an effort to rebut the Society's case.
[42] While I accept the grandmother's evidence that she does not believe her husband assaulted P.C. or the other people making allegations against him because he is a gentle, kind, hardworking man who has never harmed anyone in her presence, it is not helpful. None of the alleged assaults are alleged to have occurred in the presence of another adult and the March 1994 incident (and likely several others) occurred well before the mother reasserted her allegation in 2013. The fact that the grandmother does not believe the grandfather is capable of this and has not harmed anyone in presence, does not mean it has not or will not happen.
[43] I have considered that S.C. has made no disclosures of sexual abuse at the hands of her grandfather and that she has consistently denied that her grandfather has ever acted inappropriately towards her. While I place weight on this, when balanced against all of the other evidence and factors that I have considered, it is not enough to tip or even out the balance. The fact that nothing has happened yet, does not mean there is no risk that it may happen.
[44] I am also not convinced that S.C. is likely to disclose such abuse if it does happen. The evidence shows that S.C. is keenly aware and anxious about the burden that the existing charges and undertaking given by the grandfather places on the grandfather and the grandmother. She loves her grandparents, depends on them and has since she was six months old. She is loyal to them and holds them both in the highest regard. She is a preteen who is also afraid that she will be forced to go and live with her mother, someone whom she barely knows let alone bonded to. There is a lot at stake for S.C. She has seen first-hand the reaction of her grandparents and the legal system and thus what can happen if one makes a disclosure of sexual abuse. Making a similar disclosure would jeopardize the love and affection, stability and security her grandparents offer her. I find it difficult to believe, that she would disclose such abuse whether it has already or does in the foreseeable future occur.
ARE THERE REASONABLE GROUNDS TO BELIEVE THAT THERE IS A RISK THAT THE CHILD IS LIKELY TO SUFFER EMOTIONAL HARM?
The Evidence
Trauma to S.C.
[45] With respect to the effect that everything has had on S.C. the grandmother's evidence is that:
a) S.C. is extremely frustrated and angry to be constantly questioned about her relationship with her grandfather and by the fact that the authorities disbelieve her denials that her grandfather engaged in inappropriate sexual behavior;
b) S.C. wants to know when the authorities will leave her alone so that she can resume a normal life;
c) S.C. reports being embarrassed when the case worker pulls her out of class at school to interview her;
d) S.C. has also at times been angry with her mother both for making the allegations and for pressuring her to live with her;
e) S.C. remains anxious that her mother will follow through with her demands.
[46] In her affidavit sworn January 26, 2014 child protection worker K. Bennett deposes that S.C. has told her that she would like her grandfather to be able to return to the family home full-time and does not understand why he cannot be in the home at night with her grandmother also home.
[47] In the affidavit of the OCL's law clerk, she deposes that S.C. has told her lawyer, that she is upset with Lisa Potts and the whole Children's Aid Society who informed her of her grandfather's charges before the court. She also reported to her lawyer that she misses having a normal life, "where poppa does not have to leave his home at night"; and, the fact that her grandfather cannot drive her alone in the vehicle to her activities makes her feel sad; and, she feels it is unfair that her grandmother has the entire burden on her shoulder.
[48] The stresses on S.C. go beyond not having her grandfather residing in the home full-time and his not being able to shoulder some of the burden on her grandmother as a result of his undertaking. This is made clear from the Radius Assessment Report: Focus on Issues Related to Victimization dated September 30, 2014, which is attached to the affidavit of Cindy Roberts sworn November 12, 2014. The relevant highlights from the report are these:
a) S.C. was very open regarding the stress she has experienced since the arrest of her grandfather;
b) S.C. expressed considerable sadness and loss when she thinks about the charges. Given that the current theory grandparents hold regarding the allegations are ruled related to S.C.'s mother wanting to gain custody of S.C. the sadness and loss may be related to self-blame and should be explored further in treatment;
c) The current belief held by S.C. is that her mother has gathered together individuals to "say lies about grandpa so that her mother can get custody of her". There are relationship repercussions as a result that is separate for S.C. from the outcome of the criminal trial and as such counseling to assist her with this is also recommended;
d) S.C. is very aware and focused on the stress the charges have placed on her grandparents. It will be important for all caregivers to reassure S.C. that they in no way blame her for the current situation;
e) S.C. did not express concerns regarding a sense of responsibility for the allegations of sexual abuse, however, her current rationale for the cause of the sexual abuse charges against her grandfather is so her mother can gain custody of her. Given the considerable amount of stress that the charges have caused, it is important that S.C. not internalize any sense of responsibility; and,
f) S.C. needs to learn emotional expression skills, cognitive coping and relaxation techniques to deal with her "stress" and anxiety about her future.
[49] The assessment strongly recommended that S.C. be involved in supportive counseling to address the foregoing issues and as well to allow her a safe place to explore her thoughts and feelings regarding her grandfather's arrest. They noted that the issues involved are complex and have significant implications to her family relationships; therefore, it is important that S.C. be given the opportunity to prepare herself for the court decision with respect to the disposition of her grandfather. It also recommended that S.C. be encouraged to continue her involvement in positive, school and community-based recreational programs as these are a source of affirmation and connection and part of her overall healthy support network.
Supports in Place for S.C.
[50] S.C. has been going to counselling for a few months now. The counsellor, Heather Barbour, reported to Ms. Bennett that she has met with S.C. on a monthly basis for the past several months; that sessions were going well and that her role was to support S.C. The therapist felt that continued counseling would benefit S.C. until there was a definitive decision made regarding the criminal matter with her grandfather in order to support S.C. through the outcome and to provide her with closure.
The Possibility of Grandfather's Arrest
[51] The Society (and the Crown it says) maintain that the undertaking prevents the maternal grandfather from staying overnight at the family residence as the maternal grandmother would be asleep and S.C. would not be in her "direct care" at the time. While everyone agrees that this does not preclude me from making an order permitting the grandfather to resume residing in the home, any order I make will not supplant the undertaking and thus, the grandfather could be charged with breaching his undertaking.
[52] The grandmother deposed and both counsel for the grandparents in these proceedings, S. Foster, and counsel for the grandfather in the criminal proceedings advised the court that, in their view, nothing in the undertaking prevents the grandfather from sleeping in the home and thus, his doing so will not amount to a breach in his undertaking. I note however that in an earlier affidavit, the grandmother gave different evidence. She deposed that the undertaking would still need to be modified before the grandfather could resume sleeping in the home.
Analysis
[53] Whether the grandfather's resumption of full-time residence in the family home will or will not result in his arrest and further charges is an important issue to resolve before he is permitted by this Court to do so. This could have been accomplished by obtaining a variation in his undertaking in advance of this motion, to include as a term, "except as permitted by a family court order" or a letter from the Crown confirming that if he does so pursuant to any order I make he will not be arrested. While I have the greatest of respect for the speculative opinions presented to me, they are just that, speculative. They leave the door to the possibility of his arrest wide open.
[54] The evidence shows that S.C. is very aware and focused on the stress the charges and the condition that requires her grandfather to sleep somewhere else at night, and the burden this places on her grandparents. She is also confused, angry, frustrated, sad, and anxious. Some of that anxiety relates to her perception that her mother's goal is to take her away from her grandparents. S.C. has a lot on her plate and is stressed in ways no child should be.
[55] The evidence from the trauma assessment and the therapist (discussed below) clearly establishes that this child has suffered and continues to suffer emotionally but not primarily as a result of her grandfather not being permitted to sleep in the home at night or by his inability to be alone with her. Rather, the trauma assessment shows that this is primarily as a result of the arrest of her grandfather and the uncertainty about the disposition of his criminal matter.
[56] From this evidence I draw two conclusions. First, while the child's and the grandmother's evidence both indicate that the child is upset and angry about these conditions, the continuation of the current conditions will not place S.C. at risk of emotional harm.
[57] Second and more importantly, should the grandfather be arrested and charged with breaching his undertaking, there are reasonable grounds to believe that this will likely harm S.C. It will likely have a further destabilizing effect for S.C. as well as a negative impact on S.C.'s emotional wellbeing.
[58] For these reasons I find that allowing S.C. to remain in her grandparents care without supervision or terms and granting an order permitting the grandfather to resume full-time residence in the home as he requests, would, in these circumstances, place S.C. directly in harm's way.
CAN S.C. BE PROTECTED ADEQUATELY IF THERE IS NO SUPERVISION ORDER AND NO TERMS AND CONDITIONS?
The Evidence
Maternal Grandmother's Evidence Regarding Sexual Abuse
[59] In her affidavits the maternal grandmother deposes that the grandfather denies all of the allegations.
[60] With respect to her own view of things, the highlights of her evidence are as follows:
a) "I verily believe my husband did not assault P.C. or the other people making allegations against him;
b) He is a gentle, kind, hardworking man who has never harmed anyone in my presence;
c) The allegations of abuse are totally out of character and I stand by B.C. unequivocally;
d) I support my husband without reservation;
e) If there was a scintilla of evidence implicating B.C. in the abuse of S.C. I would be the first to speak out."
[61] From other statements made in her affidavits it is also clear that she believes that the allegations, allegations made by the mother that she says first came to light in July of 2013, are the result of her step-daughter's anger at them for what she perceives to have been them taking her daughter away from her and more recently their resistance to her desire to reunite and re-establish a relationship with S.C.
[62] On January 20, 2014 the maternal grandparents met with child protection worker, Ms. Bennett. Among other things reported by Ms. Bennett to Ms. Pott's was the maternal grandmother's statement that she still feels that the allegations against the maternal grandfather are a "witch hunt" and that the lawyer said he will take care of it in court and "expose them". When Ms. Bennett reminded the maternal grandmother that it was four to five people who have come forward with allegations against the maternal grandfather, the maternal grandmother responded by stating that it is the mother and her sisters.
Analysis
[63] I have found that there are reasonable grounds to believe that S.C. will likely be sexually abused by her grandfather. None of the evidence I have relied upon in reaching this conclusion is new to anyone and thus, my finding is not likely to change the views of either the grandfather, the grandmother, or the child. They will likely continue to deny the existence of any risk that the grandfather may sexually abuse S.C.
[64] Grandmother's view of the situation and the child's view of the situation are aligned and problematic. Both believe that the allegations have been manufactured by the mother and that she has procured other women to make similar allegations in order to achieve her ultimate goal of taking S.C. away from her grandparents. Given their state of denial and very strong views, I am not satisfied that the child would take steps to protect herself and in any event, that responsibility should not fall on her shoulders. Similarly and for the same reasons, I am not in the least bit satisfied grandmother would, on her own initiative, take steps to protect the child from the risk such as by ensuring that the child is never left alone with her grandfather.
[65] Finally, even if grandmother wants to and does, on her own initiative, diligently supervise grandfather's contact with the child, I agree with the Society that the child cannot be adequately protected by the grandmother while she is sleeping. Grandmother cannot be both vigilant and asleep. Grandmother must and will sleep and she is likely to do this at night given her caregiving and homemaker roles during the day. If the grandfather is in the home at night and the grandmother is asleep, the child will be at risk.
[66] For these reasons I find that the child cannot be adequately protected from the risk of sexual abuse simply by an order that she remain in the temporary care and custody of her grandparents. That care and custody must be supervised by the Society and it must come with terms and conditions.
WHAT TERMS AND CONDITIONS WILL ADEQUATELY PROTECT THIS CHILD FROM THE RISKS?
The Evidence
The Child's Views
[67] There was some suggestion that two conditions that could be imposed were to have S.C. sleep with her grandmother in her grandmother's bed and/or put a lock on her door at night.
[68] When these potential "conditions" were initially discussed with Ms. Bennett S.C. had this say according to K. Bennett's affidavit sworn January 26, 2014:
a) She does not want to share a room with her grandmother;
b) She does not like locks, so she did not want a lock on her door.
[69] S.C. clarified her views and position regarding sleeping with her grandmother and the lock on her door later on, during a meeting between S.C., the child protection worker and her own lawyer, Mr. Misheal. At that time S.C.:
a) said that she did not want to sleep in the room with her grandmother, as that was her grandmother's place to sleep, and she wanted her grandfather to be able to sleep in the bed with her grandmother;
b) explained that she did not like locks, as her stepmother used to lock her in a room when she was younger so the use of a lock would bring back those childhood memories. S.C. reported that she would be comfortable with the loop type lock or chain type lock.
Analysis
The Reason Why Grandfather has not been sleeping in the home or Left alone with S.C.
[70] I have referred to the reason for grandfather not being left alone with S.C. and for his not sleeping in the family home at night as being the result of his undertaking or an out of court agreement reached with the Society. The fact is however that there was significant disagreement between the Society and the grandparents about this. In particular, there was disagreement about the circumstances which gave rise to the grandparents signing the Voluntary Service Agreement. I need not decide which of them is right on this point or why the grandfather has not been left alone with S.C. or not been sleeping in the home at night. While the reason is disputed, the fact that he has not been doing so since the application was started by the Society is not disputed.
Risk During the Day
[71] I am satisfied that the risk to S.C. can be managed if grandmother is directed to ensure that the child's contact with her grandfather occurs directly under the supervision of her maternal grandmother. I am satisfied that grandmother will abide by these terms for these reasons:
a) Both grandfather and grandmother have shown themselves to be governable. The evidence is that they have been cooperative with the Society. Further, there is no evidence before me to suggest that either of them have ever breached the terms of grandfather's undertaking, the terms of the out of court agreement reached with the Society, or the terms of the voluntary Service Agreement they signed. In fact, the child's comments to her counsel about the stress placed upon her grandmother because her grandfather cannot shoulder the burden of taking her to extracurricular activities and her angst over his not being permitted to be left alone with her or sleep in the family home, indicate that the grandparents are indeed abiding by these terms;
b) Grandmother has been supervising such contact for well over a year and I am satisfied, on a balance of probabilities and based on the evidence before me, that the grandfather has not in any way been inappropriate with the child.
c) I do not doubt grandmother's sincerity when she says that if there was a scintilla of evidence implicating her husband in the abuse of S.C. she would be the first to speak out. I believe that she has taken her undertaking to supervise grandfather's contact with S.C. seriously and that she will continue to do so if the Court orders her to do so;
[72] Clearly her watchful supervision coupled with the fact that grandfather has not been sleeping at night in the family home, have been effective in managing the risk.
[73] The risk to S.C. during the day is also reduced and thus managed by the fact that she is, at least for now, in school each day and by the fact that she is involved in several extracurricular activities that take her away from the home during the day. These two factors limit the amount of time that she is in the presence of her grandfather and as a result, minimize the burden on her grandmother to supervise their contact.
Risk to S.C. at Night
[74] As I have already noted, grandmother cannot both sleep at night and at the same time supervise grandfather's contact with S.C. Given this and the fact that, based on the evidence discussed above with respect to when the abuse of some of the alleged victims occurred (at night while the girls were in their beds sleeping), the risk to S.C. at night is much higher than during the day. The issue is therefore, how to protect S.C. from the risk while grandmother is sleeping.
[75] I am not prepared to direct that as a term of the supervision order, that S.C. sleep with her grandmother at night and that her grandfather sleep in a different room. Although this possibility was raised in the evidence, no one argued for this condition. In any event, this is clearly contrary to the child's views and preferences.
[76] While installing and using a loop or chain lock on S.C.'s bedroom door could adequately protect S.C. at night, I reject this option for several reasons. First, if there is one thing that the trauma assessment makes clear, it is that special care must be taken to reassure S.C. that she is in no way to blame for the current situation and that doing anything that could lead to S.C. internalizing any sense of responsibility, could harm her emotionally. Putting such a lock on S.C.'s door and then making her responsible for its use would do just that.
[77] Second, I have little confidence that S.C. will diligently remember to lock her door at night. My lack of confidence is rooted in the evidence that:
a) S.C.'s view of the situation, even if it has been formed without manipulation, is aligned with that of her grandparents and is reflected in her comment that she does not see why a lock is necessary; and
b) S.C.'s dislike of locks because of the unpleasant memories it stirs up for her. I acknowledge that she has said she would be comfortable with a loop or chain lock but based on the evidence, that change in position appears to have come about when the responsibility for enabling grandfather to come home at night to sleep was put on her and she understood that her agreement could result in her grandfather coming home at night.
[78] Should she forget or choose one night not to apply the lock and should her grandmother be sleeping, she will be at risk of harm. I agree with the Society that the risk includes the added risk of the emotional harm that could result if the lock is not utilized by S.C. and something happens, as this too could lead to an internalization of responsibility.
[79] I have considered but rejected the following objections to the lock raised by the Society. They are either not compelling or do not have anything really to do with protecting S.C. at night if the grandfather is in the home and the grandmother sleeping:
[80] It sends the message that the society is supportive of children having to take responsibility for protecting themselves; and,
[81] If there were ever a fire in the family home during the night and the child needed to get out of her room quickly, a chain lock could interfere with her ability to do so.
[82] No other options to keep S.C. safe while grandfather is in the home at night and while grandmother is sleeping were presented to the court. Having rejected the option of a lock, I see no other way to adequately protect S.C. from the risk of sexual abuse by her grandfather except to impose, as terms of the supervision order, the condition that the grandfather's contact with the child occur under the direct supervision of her grandmother and that he not be permitted to be in the home at night.
[83] No submissions were made with respect to the time the grandfather is to leave the family residence each evening and the time when he is permitted to return to the family residence each morning. If the grandparents and the Society cannot agree upon such a timeframe, either of them may contact the Judicial Secretary, Pam Jazvac, to arrange for a conference call so that I may hear submissions and give directions.
OTHER CONSIDERATIONS
[84] I recognize that not allowing her grandfather to come home at night means that S.C. and her family cannot resume a normal life and that S.C. will continue to feel sad and angry, and that grandmother will continue to shoulder the burden of tending to S.C. There is no evidence before me, however, that suggests that her stress, anxiety and negative feelings will be any more significant than they already are or that if it the situation continues it will have any long lasting negative effects on S.C.'s wellbeing. In any event, I am comforted by the fact that S.C. is in therapy and has the kind of support that will help her manage her feelings, anxiety, and stress. It is thus, important for this therapy to continue.
[85] I am also mindful about the amount of time she and her family must further endures the current stressful situation. Based on what I am told it is a matter of months before we know the outcome of the criminal trial and I suspect, if the Society does not change its position in the event that the grandfather is found not guilty, that it will be a matter of a few short months thereafter before a trial can be held in this matter. If the grandfather is found not guilty I am prepared to expedite a trial in this matter.
WHOSE CUSTODY AND CARE SHOULD S.C. BE PLACED IN?
[86] Given my decision, the terms of supervision and the possibility that grandfather may be convicted and as a result be sentenced to some period of incarceration, it does not make sense for S.C. to remain in the care and custody of both of her grandparents. She will remain in the temporary care and custody of her grandmother.
ORDER
On a temporary basis, S.C. shall remain in the temporary care and custody of her grandmother subject to the supervision of the Halton Children's Aid Society and subject to the following terms and conditions:
a) S.C. is not to be left alone with B.C.
b) B.C. is not to be in the family residence at night; and,
c) The maternal grandmother shall ensure that S.C. continues to attend at counselling with Ms. Barbour on a monthly basis.
The current date set for delivery of these reasons, February 19, 2015 at 12:00 p.m. shall remain but the purpose will be to update the Court and for the Court to monitor the situation.
Justice V. Starr
Date: February 13, 2015