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.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2016-05-20

Court File No.: Brampton 20097/12

Between:

The Children's Aid Society of Peel, Applicant

— AND —

K.K.

W.B.

Respondents

Before: Justice Philip J. Clay

Heard on: May 18, 2016

Reasons for Decision released on: May 20, 2016

Counsel

David Sider — counsel for the applicant society

Adrian Baker — counsel for the respondent mother

The respondent father acted on his own behalf but obtained advice from Ms. S. Nimjee D/C

Michael Freeze — counsel for child through the OCL

Decision

CLAY J.:

MOTION

ADJOURNMENT REQUEST

[1] On behalf of the father Ms. Nimjee asked that this motion be adjourned to allow the father an opportunity to obtain counsel. She said that he had never qualified for LAO assistance before but his application for a certificate was now being processed. She said that this meant that the father was approved. The father said he had already contacted a lawyer who was prepared to represent him.

[2] The OCL and the Society opposed an adjournment. The mother was not asked her position. I did not require submissions from the other parties. This matter has been ongoing since 2012 and the issue of the father undergoing phallometric testing and/or a sexual preference assessment had been addressed frequently since that time. The Society had never taken steps to require the father to undergo the testing and they were proceeding towards a possible resolution of this matter without it.

[3] On March 30, 2016 the Office of the Children's Lawyer was granted leave to bring a motion seeking an order that the father undergo a Sexual Offence Specific Assessment. Filing deadlines were set and every party filed affidavit material on the issue. On March 30, I noted in my endorsement that the father wished to speak to a lawyer before responding to the request for an assessment. The father has had from 2012 until this motion to obtain legal advice on this issue. He has known of this specific motion since March 30, 2016. He filed a responding affidavit.

[4] I find that this file needs to move along as it is well past the time lines set out in the Child and Family Services Act (CFSA). The father had many opportunities to obtain counsel before the motion. Adjournment request denied.

THE LAW

[5] The OCL motion was brought pursuant to s. 54 of the CFSA. The sub-sections that are relevant to this matter are set out below.

Order for assessment

54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child.
2. A parent of the child.
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. 2006, c. 5, s. 10 (1).

Assessor selected by parties

(1.1) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court. 2006, c. 5, s. 10 (1).

Appointment by court

(1.2) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria:

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.
2. The person has consented to perform the assessment. 2006, c. 5, s. 10 (1).

Same

(1.3) If the court is of the opinion that the person selected by the parties under subsection (1.1) does not meet the criteria set out in subsection (1.2), the court shall select and appoint another person who does meet the criteria. 2006, c. 5, s. 10 (1).

Regulations

(1.4) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed. 2006, c. 5, s. 10 (1).

The applicable regulation is Ontario Regulation 25/07. Section 2 of the Regulation is set out below:

Criteria for ordering an assessment

2. An assessment may be ordered under section 54 of the Act, if the court is satisfied that,

(a) An assessment of one or more of the persons specified in subsection 54(1) of the Act is necessary for the court to make a determination under Part III of the Act, and

(b) The evidence sought from an assessment is not otherwise available to the court.

[6] Mr. Freeze referred to the decision in CCAS of Toronto v. B.W., 2013 ONCJ 417. In that case Justice Spence found that it was not necessary for the mother to have a psychiatric assessment as there was other evidence before the court that allowed it to make a judicial determination without the requirement for an assessment. In the course of his reasons Justice Spence adopted the analysis of Justice Kukurin in CAS of Algoma v. M.(P.), 2008 ONCJ 768:

A thesaurus examination of the adjective "necessary" and its noun form "necessity" yields connotations such as requisite, required, needed, essential, vital and indispensable. A review of the dictionary meaning of "necessary" results in similarly couched language. "Necessary" is that which "cannot be done without" or is "unavoidable in the nature of things."

[26] "Necessary" is several steps beyond desirable or helpful. Now that necessity for a judicial determination has been made not only a criterion by statute (even if by reference to regulation), but also a prerequisite to the making of a section 54 order, many of the considerations referred to in the context of the exercise of judicial discretion became somewhat academic. They are not even reached if the motion applicant cannot get past the threshold of the section 2 criteria.

[7] In that decision Justice Kukurin found that the necessity threshold was not met when the Society sought a parenting capacity assessment on the basis that it "may assist the court".

OCL POSITION

[8] Mr. Freeze noted that although the matter had been before the court since July 2012 the OCL was only appointed in September 2015. He had the assistance of a clinical investigator Tracy Majewski M.S.W. Ms. Majewski swore the OCL affidavit which set out why the OCL took the position that a Sexual Offence Specific Assessment was necessary for the court to make a determination in this matter.

[9] Ms. Majewski noted that the parties' son, J.B. born XXXX XX, XXXX and his brother G.C. born XXXX XX, XXXX were apprehended on July 13, 2012. J.B. has remained in care ever since. G.C.'s biological father obtained a custody order for him on April 15, 2015.

[10] Ms. Majewski noted that in the Society's child protection application they set out the following facts with respect to J.B. and his family. In November 2011 the Mother observed J.B. performing fellatio on his brother G.C.. The Peel Regional police conducted interviews with the two children. G.C. initially disclosed that the father (W.B. who is his step-father) had forced him to suck on his penis. He subsequently told the police that the father had not forced him to perform oral sex but that the father had forced J.B. to suck on the father's penis. The father denies sexually abusing the children. G.C. recanted his statements. The police investigation did not result in any charges being laid against the father. On November 11, 2011 the mother entered into a Voluntary Services Agreement.

[11] The said affidavit went on to state that in early 2012 the Society conducted its own investigation for the child G.C. with the Suspected Child Abuse and Neglect (SCAN) program at the Hospital for Sick Children. They reviewed video interviews and conducted their own interviews. The author of the SCAN report concluded that "based on the information reviewed, it is the author's opinion that G.C. was likely sexually abused by Mr. W.B." I must note that I am not making any conclusions based upon this information as to what may have occurred. I am simply recognizing that the Society and the SCAN team believed that G.C. was sexually abused.

[12] Ms. Majewski notes that a Statement of Agreed Facts (SAF) was filed with this court on November 7, 2012. Both the mother and the father signed the SAF. The filing of this document led to protection findings under s. 37 (2) (d) (f) and (g) of the CFSA. Section 37 (2) (c) and (d) read as follows:

(c) the child has been sexually molested or sexually exploited, including by child pornography, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c);

[13] In the agreed facts section paragraph 18 stated:

18. W.B. has indicated his willingness to participate in phallometric testing and Mr. W.B. and the Society are exploring funding options.

[14] Ms. Majewski said that the need for an assessment is also based upon the fact that J.B. is a very vulnerable child due to him being diagnosed with the following conditions:

a) Attention Deficit Hyperactivity Disorder (ADHD)

b) Alcohol Related Neurodevelopmental Disorder

c) Specific Learning Disorder with Impairment in Reading

[15] The clinical investigator's affidavit referred to the evidence in the Society records that J.B. had acted out in a sexual manner in foster care and at school.

[16] The OCL brought this motion because at this time the Society's Plan of Care is to have J.B. return home to the care of his mother and father. The parents have recently admitted that they are now living together in the same home. There is no one else residing there. The Society letter of September 30, 2015 sets out the Society's bottom line expectations for the parents if J.B. is to be returned. It did not include an assessment and it did not address the risk of J.B. being harmed in a sexual manner by the father. Ms. Majewski pointed out that there were records that showed that the Society had been asking the father to do phallometric testing and/or an assessment since the apprehension on July 13, 2012. Information was provided to him about the CAMH Sexual Behaviour Clinic as early as June 19, 2013. The father had not completed any form of testing, counselling or assessment on the sexual abuse protection concerns.

[17] The OCL affidavit attached the names and curriculum vitae's of three potential assessors. All of them had provided their consent and set out the terms of their assessment and the time and approximate cost of same. The OCL's preferred assessor is Dr. Smita Tyagi a forensic and clinical psychologist at CAMH. Dr. Tyagi told Ms. Majewski in telephone discussions on April 6 and 20th the following:

a) If the father obtained his CPIC records first and there was a good short condensed Society file review the hours would be 15-18 at $225 per hour;

b) She anticipated the costs of the assessment to be around $3,500; and

c) She could start the assessment in mid to late June provided that the preliminary steps had been taken.

[18] Mr. Freeze asked the court to find that the assessment was necessary in order to assess the now joint plan of care of the mother and the father to parent J.B. He said that J.B. was a vulnerable child and the court did not have any evidence that directly addressed the risk of sexual harm that the father might pose to his son. He said that the evidence was that 8 year old J.B. could not protect himself and the OCL had real concerns about the mother's ability to protect her son.

SOCIETY POSITION

[19] Mr. Sider stated that the Society was not opposing the OCL's motion. The Society filed the affidavit of their child protection worker Michael Appiah. He had been on the file since December 2013. He noted that the father had always denied the allegations of sexual abuse. He said that initially the father had agreed to phallometric testing and the issue was the responsibility of payment for same.

[20] Mr. Appiah had many positive things to say about the father's parenting abilities as demonstrated through his consistent attendance at access visits. He noted the frequent requests for the father to complete an assessment. The father would respond that he is innocent and then take no steps. The father and mother were not living together until the spring of 2016. The Society had concluded that the mother could not be a primary caregiver. Mr. Appiah's affidavit stated that the Society was hopeful that extended family or other kin would be able to present a plan. The Society's application before the court was for a Crown ward order but the Society was looking at alternatives.

[21] By September 2015 the Society was looking at the possibility of placing J.B. with the parents if certain bottom lines were met. As noted above, notwithstanding the verification of abuse and the protection finding on that ground the bottom lines did not include the assessment that had been requested since 2013.

[22] Mr. Sider said that the Society would be prepared to pay $3,000 towards the costs of an assessment and that the Society was content with any of the three assessors put forward.

MOTHER'S POSITION

[23] Mr. Baker stated that the mother was not opposed to an assessment. It could provide useful information. She had filed an affidavit setting out her position. He acknowledged that the mother's position as to whether the father had sexually abused G.C. had vacillated over time. At first she did not want to believe it. Then she thought if the Society were convinced that it happened it must have occurred and she signed the SAF referred to earlier. Since September 2015 with the Society looking towards family re-unification without any assessment she thought that the abuse could not have happened.

FATHER'S POSITION

[24] The father filed an affidavit. He focused on the positive steps that had occurred since the summer of 2015. He noted that the Society agreed to J.B. having some unsupervised day access twice a week with his parents. He referred to all the positive comments that had been made about his parenting abilities. He essentially took the position that the file had seemed to have moved past the issue of why the children came into care as in the last year the focus was on family re-integration. He claimed to not understand why the abuse allegations were being re-visited this late in the day.

[25] The father said that "I never did say no" to phallometric testing and an assessment. He took the position that the Society chose not to pursue the assessment. He said the tests are very intrusive and he did not think that they were necessary at this point. In his affidavit he referred to other children in the foster home perhaps being responsible for any sexualized behaviour that J.B. might have exhibited. He said that he had asked for that to be investigated.

[26] The father said that given the excellent progress that had been made an assessment would only add costs to and delay the proceeding. He said that he had been under severe scrutiny for 54 months and to start another investigation would undermine the cooperative work that had taken place.

ANALYSIS

[27] The issues for me to determine are whether the requested assessment is "necessary" and whether the evidence it could provide could not be obtained in any other way.

Necessary

[28] I find that the assessment is necessary. J.B. is a very vulnerable young boy. His mother observed him performing fellatio on his brother G.C. in November 2011. He would only have been 5 years old at that time. G.C. initially told the police that the father had required J.B. to perform oral sex upon him. G.C. later recanted and his disclosures were inconsistent. Nevertheless, the Society and SCAN verified that G.C. had been sexually abused. The parents agreed in November 2012 to a finding that both boys were at risk of sexual harm from a caregiver. The father was the only male caregiver and there was no evidence of any other adult male in J.B.'s life at the time. The child protection concerns were very serious.

[29] The Society had taken the position from the outset that the father needed to do an assessment. For whatever reason by the summer of 2015 an assessment was no longer a bottom line condition. The father lays great emphasis on this fact. I find that it is not relevant to my determination.

[30] In the course of a child protection proceeding there are often many issues and many changes in the circumstances of the proposed caregivers. Until the summer of 2015 the possibility of the mother and father co-parenting J.B. did not seem to be on the Society's radar. They were looking for a Crown ward order while at the same time being alert to a kin plan. When they ruled out the mother as a primary caregiver and when no other kin had stepped forward the possibility of the father and mother making a joint plan became a focus. At that same time the OCL was appointed.

[31] The OCL took a fresh look at the entire file and after a comprehensive investigation Ms. Majewski came to the conclusion that the Society's "bottom line" was missing a key component. The OCL was able to persuade me that the Society's original position was not only well founded but critical to the resolution of this matter. It is not helpful to criticize the Society for not bringing this motion. However the fact that they did not does not assist the father's argument. The need for an assessment is no less urgent just because the Society did not seek it. I must determine this matter by looking at all of the facts as set out in the affidavits and exhibits filed.

[32] The father clearly has many strengths as a parent as shown by access reports. He is also quite clever. He has been able to maintain that he is not opposed to any assessment but then deflect the frequent efforts of the Society to get him to undergo one. He now says that an assessment will delay the matter. I find that there will be no delay as it is not possible for this court to consider making the father J.B.'s primary caregiver without answers to critical questions around his sexual preferences and behaviours.

No other evidence

[33] There have been no other assessments of either parent in this file. The only other evidence that this court has about the father's sexual preferences is the evidence from two vulnerable young boys in their interviews with the police, the Society and SCAN. The father has simply denied that anything inappropriate occurred.

[34] This assessment is critical not only to whether the father could be considered as a primary caregiver but also as to any access issues concerning J.B. and his father.

ORDER

1. The father W.B. shall undergo a Sexual Offence Specific Assessment to be conducted by Dr. Smita Tyagi.

2. The father W.B. shall:

   a) Apply for his CPIC records on or before May 27, 2016 and deliver them to the assessor as soon as they are obtained;

   b) Provide to the assessor any information that she may reasonably require in order to complete her assessment; and

   c) Attend at scheduled meetings with the assessor and co-operate fully with her assessment process.

3. The Society shall:

   a) Prepare a summary of the child protection concerns related to the risk of sexual harm and deliver same to the assessor on or before May 27, 2016; and

   b) Deliver to the assessor her requested retainer by the date required and pay all invoices for the assessment process.

4. The Assessor shall:

   a) Confirm in writing to all the parties by May 27, 2016 the date she will begin the assessment and her anticipated completion date;

   b) Provide a detailed accounting to the Society for her services and not exceed the sum of $4,500 plus H.S.T. and disbursements without providing an interim report to the parties and the court detailing why the assessment will cost more than the highest amount of her original estimate; and

   c) Deliver a report to the parties on or before August 12, 2016 or provide an interim report to the parties and the court detailing why the assessment will take much longer than the time set out in her original estimate.

5. This matter remains on the list for June 1, 2016 to be spoken to. The Society and the father shall file a 14C confirmation on May 30 to advise if the steps that they were required to take prior to May 27 were completed.

   a) If Dr. Tyagi has been retained and is able to comply with the terms set out in this order then the parties may adjourn the June 1, 2016 attendance by obtaining a date from the trial co-ordinator in September 2016 for a settlement conference before their case management judge the Honourable Justice S.V. Khemani;

   b) If Dr. Tyagi has not been retained or is unable to comply with the said terms the OCL shall obtain updated information about the other proposed assessors' ability to comply with the said terms. The parties shall then attend before Justice Khemani to agree upon an alternate assessor and to obtain a court order for her to complete the required assessment.

6. There shall be no costs of this motion.

Released: May 20, 2016

Justice Philip J. Clay