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 45(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: 2016-06-17

Court File No.: Toronto CFO

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO, Applicant,

— AND —

G.C. and J.C., Respondents.

Before: Justice E.B. Murray

Heard on: May 2, 3, 5, 9–13, 2016

Reasons for Judgment released on: June 17, 2016

Counsel

Ms. Mei Chen ...................................................................... counsel for the applicant society

Ms. Tammy Law ............................................................... counsel for the respondent mother

Mr. Ian McCuaig ................................................................... agent for the respondent father

DECISION

MURRAY, E.B. J.:

[1] Introduction

This is my decision after trial on an application by the Catholic Children's Aid Society of Toronto concerning two children P., born [...], 2010, and E., born [...], 2013. G. and J.C. are the parents of the children. The Society began its application in June 2013, seeking a finding that the children were in need of protection pursuant to section 37(2)(d) of the act, alleging that they were at risk of sexual abuse by G. The Society further requested an order that the children be placed with J., subject to Society supervision and a number of conditions. The conditions included the following:

• G. not to reside in the family home; and
• G. to have no access to the children except when supervised by a third party who was pre-approved by the Society.

A. History of Proceeding

[2] Prior Criminal Convictions and Initial Contact with Society

Prior to the birth of the children, G. was found guilty of sexual offences, including abuse of a child and indecent exposure, and was diagnosed with pedohebephilia and exhibitionism. The C. family only came to the attention of Society in April 2013, when an anonymous caller contacted Society to advise that G. had a criminal record for child abuse.

[3] Initial Motion and Interim Care Order (June 2013)

The Society brought a motion asking that G. be removed from the home while its investigation was ongoing. G. and J. did not agree. On June 19, 2013, the case management judge, Justice Heather Katarynych, declined to make the order. She placed the children in the temporary care of their parents, subject to Society supervision, on a without prejudice basis with a condition that the parents cooperate in an updated assessment of G. and work with the Society to try to forge a united plan.

[4] Interim Care Motion (April 2014)

After an updated risk assessment of G. was conducted, the interim care motion was argued in April 2014, with the Society again requesting G.'s removal from the home and a provision for supervised access. Justice Katarynych directed that the children remain in the care of both parents, subject to Society supervision. Her order of April 7, 2014 aimed to protect the children but keep G. involved as their father. The order provided:

• that G.'s contact with the children was to be fully supervised by J., or another person fully aware of his diagnosis.
• that G. continue treatment with his psychiatrist, Dr. Scott Woodside, and cooperate in taking medication to reduce his sex drive.
• that G. not sleep in the family home at night.
• That G. avoid certain types of contact with the children, such as bathing, toileting, or kissing.
• That J. access education about G.'s condition and how it might be managed.

[5] Protection Finding (October 2014)

A protection finding pursuant to s. 37(2)(d) was made on consent on October 2, 2014.

B. Positions of the Parties

[6] Society's Position

The Society now asks for the same order as to disposition initially requested in its protection application in June 2013, a six-month supervision order providing for the children's placement with J., with G. vacating the home entirely, and having access supervised by someone other than J., to be pre-approved by Society. In counsel's opening statement, she advised that Society's position was prepared to allow such access for up to 4 hours daily.

[7] Parents' Position

G. and J. agree that G.'s access to the children should be supervised, but say that J. (in addition to others who are fully informed of the risks he may pose) is an appropriate supervisor. They make further requests which reflect the recommendations of Dr. Julian Gojer, the psychiatrist they retained to assess G. They propose a continuation of the status quo resulting from the current interim order which allows G. to be in the family home during waking hours, with one change. They ask that the condition that G. take medication to reduce his sexual functioning be removed, and replaced by a condition that he continue treatment with a psychiatrist fully qualified to treat sexual disorders, treatment that might or might not involve a continuation of medication, depending on what is agreed upon by G. and the doctor.

[8] Future Reintegration

G. and J. ask that the order set out further conditions which would allow G. to be would be fully reintegrated into the family home in the future. Those conditions are that J. commence personal counselling, that the parents commencing couples counselling, and the establishment of an electronic or mechanical means to allow J. to monitor G.'s whereabouts in the house—for example, a buzzer that would alert her if he left their bedroom in the evening.

[9] Evidence Presented

In the trial I heard evidence led by Society from protection worker Elisabeth Fitzgerald; family service workers Laurentiu Sasarean and Gustavo Guillen; supervisor J. Maryk; and psychiatrist Dr. Scott Woodside, who assessed G. in 2009 and 2014, and is currently monitoring his medication. Both G. and J. gave evidence. I also heard evidence led by them from Stephanie Swayne, a social worker who when at CAMH had worked with G.; Katie Konyk, a social worker at CAMH who worked with J.; and psychiatrist Dr. Julian Gojer, who assessed G. in 2016. I also considered the agreed statement of facts signed by the parties in August 2014 to support the protection finding, as well as other documentary evidence filed.

C. The Law

[10] Statutory Framework

Section 57 of the Act provides that where a protection finding has been made and the court is satisfied that a further order is necessary to protect the children, that the court may make one of a number of orders, including an order of up to 12 months providing that the children be placed in the care of a parent or other person, subject to Society supervision.

[11] Necessity of Further Order

In this case, everyone one agrees that a further order is necessary to protect the children.

[12] Conditions and Proportionality

The order may include reasonable terms and conditions. Those conditions should relate and be proportionate to the risk which the order aims to manage.

[13] Least Disruptive Course of Action

The conditions should also be consistent with purposes set out in section 1 of the Act, which includes the directive that the "least disruptive course of action" should be employed that is consistent with promoting the best interests, protection and well-being of children. In other words, the court must make an order that is the least disruptive or intrusive option that is consistent with adequate protection of the child.

[14] Best Interests Factors

The best interests factors to be considered are set out in section 39(3) of the Act:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

D. Evidence

[15] Disputed Issues

Much of the evidence given by the parents with respect to their background and current situation is undisputed. What is disputed or questioned is their belief and acceptance now and in the past of G.'s diagnosis and the implications for risk to the children that flow from that diagnosis.

1. Background

[16] J.'s Background

J. is 29 years old. She was born in Canada to parents who emigrated from the Azores. She was raised in the Toronto area. Her evidence is that she was abused, both physically and emotionally, by her mother throughout her childhood, and that her father tolerated and sometimes joined in this abuse. J. has two younger siblings, M., who is three years younger than her, and SE., who is approximately 15 years younger.

[17] J.'s Education

J. had basic literacy problems in secondary school affecting her receptive and expressive language ability. She failed her Grade 9 literacy test, and was placed in a "learning strategies" program in which she was given extra time and individual attention by a teacher who explained concepts step-by-step. She was able to graduate from high school, and worked at various retail/sales jobs. J.'s evidence is that she has always done better with mechanical tasks, figuring out "how things work", rather than written or spoken expression.

[18] G.'s Background

G. is 35 years of age. He was born in Colombia, and completed high school and attended college there, without graduating. He came to Canada in 2002, and applied for refugee status. He had the support of John M., an older cousin who had established himself here, and initially lived with Mr. M. and his family in Toronto. G. hoped to further his education and attend university. He soon realized that he was financially unable to do so. Mr. M. helped G. get a job as a brick layer's assistant. G. soon progressed to work as a bricklayer in the construction industry.

[19] G.'s Language

G. speaks English, but his first language is Spanish. During this trial, he gave his evidence through an interpreter; he heard the rest of the evidence without continuous translation, relying on the interpreter for occasional assistance.

[20] Meeting and Relationship

J. and G. met in 2002 when they worked in a grocery store. They became friends and started dating. In 2006 when J. was 19 years old, she left her parents' home to live with G. J. testified that she saw G. as "rescuing her" from an unhappy home life. J. was estranged from her mother at the time she left home, but still had communication with her father.

[21] Family Changes

Sometime after J. moved out, her parents separated. J.'s mother underwent a program for gender re-assignment, and re-partnered. SE. was in her mother's care, but visited her father on alternate weekends.

[22] Home Purchase

At Mr. M.'s urging, G. and J. purchased a home. It was a financial stretch for them. They rented out sections of the house to make ends meet. J.'s father Tony rented the basement. SE. came to visit him on weekends, sometimes also coming upstairs to visit with J.

[23] Marital Difficulties

G. and J. began to argue frequently, mainly about financial issues. The arguments became worse when J. stopped working, to attend a college early childhood education program. In 2008 G. lost his job. He testified that he was unhappy with his life, and found little support in his relationship with J. J. says now that she thought that they had a good relationship at the time—perhaps because she had little idea from her own family experience of what a good relationship looks like. She says that, looking back, she sees that there were warning signs that something was wrong with G. that she did not understand, but that would alarm her if they occurred today.

2. G.'s Offences

[24] Indecent Exposure

G. began spending time away from home. He began exposing himself to women and girls, often masturbating while he did so; he did this on multiple occasions. He testified that he did not target girls (as opposed to adult women), but that in fact perhaps half the time it was girls aged 10-12 and up who were the objects of his offences. G. said that his intention at the time—which he now sees as warped—was to attract adult women to have sexual relations with him.

[25] First Arrest (March 2008)

In March 2008 G. was observed with his pants undone in a car in front of a school. He was arrested and charged with committing an indecent act in a public place. He pled guilty, and was sent for an assessment at the Centre for Addiction and Mental Health (CAMH) by Dr. Stephen Hucker.

[26] Sexual Abuse of SE.

G. then sexually abused SE., who was then 7 years old, while she was on a visit to her father at their home. This occurred two or perhaps three times. On one occasion, the child was sitting on his lap while they played a computer game, and he fondled her vagina. On another occasion, G. told the child to close her eyes, placed his penis in her mouth, and licked her vagina; he did not ejaculate. Both these offences took place when J. was not present; on one occasion, she was absent from the room for only ten minutes, while she showered.

[27] Second Arrest (January 2009)

G. did not use physical force or threats in the course of this abuse. SE. told a classmate what G. had done to her. An investigation quickly ensued, and he was arrested in January 2009 and charged with two counts of sexual assault, sexual interference and invitation to sexual touching. The information charged that these offences took place between February 1, 2008 and January 11, 2009. G.'s evidence was that they occurred in January, 2009.

3. Risk Assessment and Sentence - 2009

[28] Dr. Woodside's 2009 Assessment

G. was detained after his arrest. He pled guilty to the offences regarding SE., was sent for an assessment at CAMH by Dr. Scott Woodside before sentencing. Dr. Woodside issued a report June 9, 2009 in which he made the following findings and recommendations:

• G. suffers from exhibitionism and pedohebephilia, a preference for sexual contact with pubescent or pre-pubescent girls.
• G. was at moderate to high risk to re-offend.
• Treatment should include therapy using a cognitive behavioural and relapse prevention model; use of a sex-drive reducing medication was strongly recommended.
• G. should have no unsupervised contact with individuals under age 16 "in perpetuity".

[29] Further Discussion of Assessment

More will be said below about Dr. Woodside's assessment.

[30] Sentencing (July 2, 2009)

On July 2, 2009 G. was sentenced on all offences to 45 days in jail in addition to the time already served, followed by 3 years' probation. His probation included terms to attend counselling and rehabilitative programs for sexual behaviour, to have no contact with SE., and not to have unsupervised contact with anyone under age 16. He was placed on the Sex Offender Registry for 10 years, and is subject to an order pursuant to S. 161 of the Criminal Code which prohibits him for 10 years from attending at places where young children are known to be, such as school, parks, and swimming pools.

4. What G. Told J.

[31] Initial Denial

J. had visited G. in jail while he was detained. He testified that he did not feel safe discussing the charges with her, except to say that he was not guilty. Their visits were not private, and he was wary of what they said being relayed to others, particularly to other inmates who would treat child sex offenders harshly. When G. was released on August 2, 2009, he told J. that he had not abused SE. He explained to her that he chose to plead guilty to get out of jail; waiting for a trial would have meant a much longer time in jail, time that they could not afford to have him not working.

[32] J.'s Initial Belief

J. testified that at the time she believed G. when he denied abusing SE. Both of J.'s parents had told her over the years that SE. was manipulative and made a habit of lying to cause trouble.

[33] Marriage and Pregnancy

J. and G. were married on September 19, 2009. Within a short time, J. discovered she was pregnant with P. The pregnancy was unplanned.

[34] Financial Crisis

G. and J. could not keep up mortgage payments. They lost the house, and filed for bankruptcy in late 2009.

[35] G.'s Admission

Sometime in late 2009 G. admitted J. that he had in fact sexually assaulted SE. He did not show her Dr. Woodside's report, or tell her about the diagnosis. He did tell her that he had changed, that he would take treatment, and that he wanted to be a good husband and father.

[36] J.'s Turmoil

J. testified that she was in turmoil. She did not know what to think. She was upset that he abused her sister and had lied to her. She wondered if he was a risk to other children. She thought about leaving G. She barely spoke to him for weeks.

[37] Decision to Stay

Despite her qualms, J. wanted her unborn child to have a father in his life, and wanted that child to have a better home than she had. She reflected that G. had always been good to her, patient and never violent. She was a devout Catholic and did not want to divorce. J. finally decided to trust that G. was changed, and hope that he would be ready to tell her more in the future.

[38] G.'s Difficulty Accepting Diagnosis

G. testified that at the time he was released from jail, he had great difficulty accepting that he was a pedophile, and that this was a life-time condition. The diagnosis did not fit with his self-image of being a "good, hard-working person, with good values". He was unable to talk with J. or anyone else about this for months.

5. J. Starts Supervising G.

[39] Discovery of Dr. Woodside's Report

P. was born on [...], 2010. J. testified that after the child's birth, she became more concerned and more vigilant about G. and any risk he might pose. She looked for, found, and read Dr. Woodside's report. She did not understand it all, but was disgusted when she saw the report that he had exposed himself to adult women and girls hundreds of times and that he had abused SE. not once, but twice.

[40] Confrontation and Continued Relationship

J. confronted G. and they argued. J. says that she thought again about leaving, but saw that by this time G. was getting treatment at CAMH for his sexual disorder. She read his homework assignments from the relapse prevention group, and was persuaded that he was working hard.

[41] Protective Measures

J. decided to give G. a second chance, just as he had given her a second chance when she left her unhappy family home. She told him that if he re-offended she would leave, taking P. with her. Her evidence is that she also took her own precautions, to protect P. She insured that G. was never alone with the baby, and that he did not bathe or change the child. She monitored his use of the internet to check for suspicious activities.

[42] Limited Understanding

J. testified that at that time, she still did not have a full understanding of G.'s condition. For example, she did not understand that it could not be cured, only managed.

[43] Family Recovery

J. and G. determined to stay together, and "be a family". G. completed a 12-week relapse prevention program at CAMH. J. went to business school, obtained a diploma, and got a job as an office assistant. G. returned to construction work. The family began to recover financially.

[44] Involved Fatherhood

J. and G. testified that although J. did not permit him to care for P. alone, he was a fully involved father. With J. present, he played with the child, read bedtime stories, and participated in family meals and outings. The family socialized with John M. and his family and with another cousin, Edgar M., and his family. For a time they stayed in touch with J.'s father Tony. That relationship withered; J. says that it was because Tony's new partner objected to their continued contact.

[45] Non-Disclosure to Treatment Team

G. did not disclose in his CAMH group therapy or to his probation officer that he was a father. He acknowledged that he and J. were afraid that if he did so, the Society would become involved and they might lose P.

[46] Immigration Issues

G.'s convictions triggered a revocation of his permanent resident status in Canada. However, the deportation order that resulted was stayed on certain conditions, one of which was obtaining a further psychiatric report. G. obtained a report from Dr. John Arrowood, a psychologist at CAMH who had been involved in his group treatment. The Immigration and Refugee board found that as the new report was not from a psychiatrist, this was a violation of the stay order. The Board lifted the stay. G. testified that he had not understood the difference between a psychologist and a psychiatrist and that he did not intend to violate the order. Despite the revocation, G. is still permitted to stay in Canada as a protected person, but has been warned that a further conviction could result in his deportation.

[47] Completion of Probation

G. successfully completed his probation in 2012.

6. The Society Gets Involved

[48] Anonymous Report

P. was a healthy, happy child. E. was born on [...], 2013. She was a planned baby. The C. family did not come to the attention of Society because of any allegations of abuse or neglect, but because an anonymous caller advised that G. was a convicted child sex offender with children in his home.

[49] Initial Cooperation

Although J. and G. were shocked to have an unannounced visit from protection worker Elisabeth Fitzgerald, they were cooperative. They signed releases. J. told Ms. Fitzgerald about the steps she was already taking to insure that G. was not alone with the children.

[50] Initial Assessment

Ms. Fitzgerald noted that the children appeared healthy and clean, that the home was appropriate. She testified that she had no concerns about the children's care.

[51] Critical Factor in Society's Position

Ms. Fitzgerald testified that in her investigation she considered what the parents told her, Dr. Woodside's 2009 risk assessment, the report from G.'s probation officer (that he had not re-offended while on probation), and reports about G.'s active participation from 2 relapse prevention groups at CAMH from 2010 and 2012. She testified that Dr. Woodside's report was the critical factor in Society's determination of its position that G. had to vacate the family home and have only supervised access to the children.

[52] Society's Concerns About Understanding

Ms. Fitzpatrick was concerned, however, that the parents did not sufficiently appreciate the risk G. posed to the children. She understood J. to say that G. would not re-offend because he had "learned his lesson" and because he would not offend against his own children. Ms. Fitzpatrick understood G. to say that he did not consider himself to be a risk to his children and that he did not have "these types of feelings" any longer.

7. Dr. Woodside's 2014 Report

[53] Updated Assessment

Dr. Woodside did a further assessment of G. at Society's request, and released his report on January 29, 2014. He again interviewed and tested G., who advised him that he felt he had learned from treatment about "mindfulness, being aware of his thoughts, and acceptance (of his diagnosis). …he also learned to communicate and seek help if he was worried he was going to relapse".

[54] J.'s Understanding

Dr. Woodside interviewed J. He noted that she had not received any counselling or education on G.'s illness. He said that she believed from G. that his illness was "in the past". She did not think that he had a sexual interest in children at present.

[55] Lifetime Disorder

Dr. Woodside advised J. that pedophilia is a lifetime disorder.

[56] Continued Risk Assessment

Dr. Woodside still classified G. as moderately to high risk to re-offend. His recommendations remained that he have no unsupervised contact with children under 16 years of age.

8. Case Classified as "High-Risk"

[57] Intensive Supervision

The case was classified by the Society as "high risk". This resulted in visits (announced or unannounced) every two weeks by a worker. During visits workers routinely talk to the children (P. and later E. too) privately to monitor their welfare. They ask, among other things, about whether their father is ever alone with them, and whether he is involved in bathing or toileting them. Workers have talked to talk to P.'s daycare, and later to E.'s daycare and to P.'s school staff. After the temporary supervision order of April 7, 2014 which required that G. vacate the home in the weekends, workers have also quizzed the children about whether their father was at home at night to sleep. On one occasion, a worker came at 5 a.m., waking the household, and searched every room in the house to see if G. was there; he was not.

9. Expert Evidence

9.1 Qualification

[58] Qualification of Experts

I heard evidence from psychiatrists Dr. Scott Woodside, who was called by the Society, and Dr. Julian Gojer, who was called by G. On consent, and after a voir dire was conducted, I qualified Dr. Woodside as an expert in forensic psychiatry, with special expertise in the assessment of risk of violent and sexual offending, as well as in the assessment and treatment of sexual offenders. On consent, and after a voir dire was conducted, I qualified Dr. Gojer as an expert in forensic psychiatry, specifically with respect to risk assessment, treatment, and management of violent and sexual offenders.

[59] Dr. Woodside's Qualifications

Dr. Woodside has worked his entire career at CAMH. He currently serves as the clinical head of the Sexual Behaviours Clinic, a staff psychiatrist in the Complex Mental Illness program, and a member of the Ontario Review Board. Although Dr. Woodside was involved in providing group therapy to child sexual offenders in his early years at CAMH, for the past 12 years he has restricted his practice to treating these offenders with medication that reduces sex drive. Dr. Woodside has conducted many assessments in criminal cases, including violence and sexual violence risk assessments and dangerous offender and long term offender assessments. In the civil arena Dr. Woodside has conducted return to work assessments, workplace violence risk assessments, and assessments regarding the psychiatric impact of trauma. He is recognized by the College as a specialist in forensic psychiatry.

[60] Dr. Gojer's Qualifications

Dr. Gojer is the founder and director of the Manasa Clinic, psychiatrist at St. Lawrence Valley Correctional and Treatment Centre, a staff psychiatrist at Toronto Western Hospital, and a member of the Ontario Review Board. He was a staff psychiatrist at CAMH from 1994 to 2007, and currently consults with the Sexual Behaviours Clinic and the Anger Clinic at CAMH. The Manasa clinic provides treatment and counselling by a multidisciplinary team. At the clinic, on contract to probation and parole, Dr. Gojer conducts sex offender groups for 24 clients each year. St. Lawrence Valley is a medium to maximum security facility that houses all inmates with serious psychiatric problems in Ontario. Dr. Gojer directed the sex offender program there, and continues to provide group counselling for inmates including sex offenders. Dr. Gojer has conducted many assessments of sex offenders and violent offenders, including assessments for dangerous and long term offender hearings and assessments of fitness to stand trial and criminal responsibility. Dr. Gojer has also assessed individuals for bail hearings, the Ontario Review Board, probation and parole, and Children's Aid societies.

[61] Assessments Conducted

Dr. Woodside assessed G. in 2009 for his sentencing on his criminal offences. At the request of the Society, he assessed him again in 2014. Dr. Gojer assessed G. in 2016.

[62] Areas of Agreement

Dr. Woodside and Dr. Gojer agreed about several important issues:

• Most sexual offenders do not re-offend. Only about 5-15% of offenders are charged or convicted of subsequent offences. (Dr. Woodside cautioned, however, that most sexual offences are not reported.)
• G. suffers from two sexual disorders, hebepedophilia (an attraction to pubescent and pre-pubescent girls) and exhibitionism ("exposure of one's genitals to strangers, accompanied at the time or later by masturbation to thoughts of exposing oneself").
• G.'s condition cannot be "cured", it can only be managed.
• G.'s contact with children under 16 should be supervised.
• Anyone supervising G. should understand the nature of his disorder and possible triggers.

[63] Areas of Disagreement

Dr. Woodside and Dr. Gojer differed as to the weight to be assigned to various factors in assessing risk to re-offend, and in their approach to treatment.

[64] Supervision Opinions

Dr. Woodside did not express an opinion as to whether he considered J. to be a reliable supervisor, but did say that it was "unlikely" that any one individual could provide appropriate supervision over a 24-hour day. Dr. Gojer's opinion was that the current system of supervision provided by J. was appropriate, and said that with some further work it was reasonable to expect that G. could live in the home full-time.

9.2 Methodology for Assessment

[65] Assessment Tools

Both experts used a variety of approaches in their assessments: an actuarial tool, the Static 99R or Static 2002R; a psychopathology assessment tool; phallometric testing; a review of relevant documents with respect to G.'s offences and his treatment; psychometric testing of G.; and interviews with G. and J.

[66] Static 99R Tool

The Static 99R is a 10 item checklist based on historical factors, such as number of victims, whether victims are related to the offender, gender of victims, and age of offender. The checklist was developed using prison populations of sexual offenders and their rates of re-offence within 5, 10 and 15 years. According to Dr. Woodside, it is the most widely used actuarial tool to predict risk of sexual recidivism and a "moderate predictor" of recidivism, accurate 70-80% of the time.

[67] Limitations of Static 99R

The Static 99R does not take into account two factors which are known to be highly related to sexual offending against children, the presence of anti-social pathology and the presence or absence of a diagnosis of pedophilia.

[68] Phallometric Testing Results

Both experts considered the results of phallometric testing on G. conducted by Dr. Stephen Hucker in 2008 in preparation for G.'s sentencing on the indecent exposure charge. G.'s test results indicated a sexual preference for pubescent girls. His next highest level of arousal was to neutral stimuli, rocks and landscapes. His next highest level of arousal was to adult females and to pre-pubescent boys.

[69] Non-Exclusive Preference

G.'s profile on the phallometric test was like most child sexual offenders in that his interest in sex with girls is non-exclusive; he also shows interest in sex with adult females. The experts agreed that an offender who shows an exclusive interest in sex with children is much more likely to re-offend.

[70] Psychopathology Assessment

Both experts agreed that the presence of psychopathology is a strong risk factor for re-offending, as psychopaths are much more likely to re-offend and much less amenable to treatment. In assessing G., they both used an instrument to test for psychopathology. His score was now, within normal range, and both assessors agreed that he did not demonstrate anti-social characteristics.

[71] Protective Factors

Both experts agreed that certain factors are protective against re-offending: a stable marital relationship, a satisfactory sexual relationship with an adult; stable employment; absence of a mental health diagnosis; and absence of a problem with substance abuse. They agreed that those positive factors are present in G.'s case.

9.3 Modes of Treatment

[72] Psychological Therapy

There are two major treatments used to manage pedophiles, psychological therapy and medication that reduces sex drive. Cognitive behavioural treatment is the most common type of psychological therapy employed. It can be conducted individually or in a group, and involves mindfulness training—being aware of one's thoughts, learning to control one's thoughts, and learning to identify triggers and to reduce stress.

[73] Sex Drive Reducing Medication

Medication involves use of anti-depressants, which reduce genital sensitivity, or of anti-androgens, a stronger medication that reduces testosterone. Dr. Woodside's evidence is that the aim of using anti-androgens is to reduce sexual drive, to "child-like levels". Most men who use this medication experience a loss of sexual interest and difficulty in achieving an erection and orgasm.

[74] Side Effects of Anti-Androgens

Use of this medication also reduces the desire and ability to engage in healthy, appropriate sexual relationships with adult females. Anti-androgens have side effects, such as bone loss, fatigue, weight gain, and unwanted breast development. Dr. Woodside testified that most of his patients who are constrained to take such medication (e.g., when on probation) discontinue when they have a choice.

[75] Effectiveness of Treatments

Dr. Gojer testified that research indicates that behavioural therapy is as effective as medication in controlling the urge to re-offend. Dr. Woodside's evidence was that although some studies showed modest effectiveness for offenders participating in cognitive behavioural therapy, rigorous, high-quality studies indicate that there is no evidence that either cognitive behavioural therapy or medication reduces recidivism.

9.4 Dr. Woodside's Evidence

[76] Factors Affecting Expression of Deviant Interest

Dr. Woodside observed in his 2009 report that whether an individual who suffers from a sexual disorder such as pedohebephilia "expresses that deviant sexual interest depends on a variety of factors, including the degree of psychological and social stress that an individual is under, the ability to cope and adapt to that stress, the presence of alcohol or substance abuse, the presence of a concurrent antisocial personality disorder or psychopathy (which, in the absence of significant conscience development will tend to reduce the resistance to acting out on their aberrant sexual drive), and the presence of absence of treatment."

[77] Current Risk Assessment

Dr. Woodside's reports both classified G. as a moderate to high risk to re-offend; during cross-examination he testified that according to the Static99R, G. would now be assessed as a low to moderate risk to re-offend. Dr. Woodside acknowledged that the nature of risk is ultimately dynamic, saying that while G. may not now be at significant risk to act on an underlying sexual preference, that at times of stress this risk would be elevated.

[78] [Paragraph number in original]

[79] Reliance on Actuarial Tools

Dr. Woodside testified that when assessing risk he preferred to rely on actuarial tools as opposed to clinical factors—unless clinical factors were "very compelling"—because human beings have difficulty in assigning appropriate weight to relevant risk factors. The most significant factors Dr. Woodside considered in forming his opinion were G.'s diagnosis of pedophilia, the profile of his past offending, and his results on the Static99R.

Static99R Scoring

[80] Static99R Scores Over Time

In 2009, Dr. Woodside scored G. 5 out of 12 on the Static 99R. In 2014, he scored him as 4. Both scores indicated a moderate to high risk of re-offence. By the time Dr. Woodside gave evidence, he testified that G.'s score was 3 by virtue of his increasing age, indicating a low to moderate risk of re-offence. He said that this score placed G. in a class of offenders about 3.3% more likely to re-offend than the average sexual offender.

Diagnosis of Sexual Disorder

[81] Best Predictor of Re-Offending

Dr. Woodside testified that the single best predictor of sexual re-offending is a diagnosis of pedohebephilia and/or a phallometric test showing a strong attraction to children.

[82] Reliability of Phallometric Testing

Dr. Woodside's evidence is that although the results of phallometric testing are not reliable in all instances, that the CAMH laboratory insists on a high degree of specificity, resulting in very few false positives. For that reason, he placed some reliance on the results of G.'s phallometric test.

[83] Support for Diagnosis

Dr. Woodside testified that several factors support his diagnosis of pedohebephilia: G.'s admission that he was sexually attracted to young girls and that he had been sexually attracted to SE.; his phallometric test results; and his admission that at some point in is life (14 years ago) he had sought out child pornography.

[84] Further Evidence on Diagnosis

Dr. Woodside's evidence continued as follows:

• Pedophiles offend in equal rates against family members and non-family members. In other words, there's "no protective value …. in terms of your own children versus other people's children".
• The fact that an offender has chosen female victims does not mean that he will not offend against male children; about 20% of offenders have a bi-sexual attraction. However, Dr. Woodside testified that if G. offended in the future, he would most likely offend against girls and in the same fashion as he had previously.
• The Static 99R does not assist in predicting whether an offender will offend against a particular person, or at a particular time, or the severity of any offending.

Clinical Factors

[85] Non-Disclosure Concerns

Dr. Woodside said that he was "deeply concerned" that G. had not begun to use sex drive reducing medication until compelled to do so by the April 2014 order. He noted that while G.'s insight into his condition had improved by early 2014 (the time of his second assessment), it was still deficient. He noted that G. had not disclosed to Dr. Hucker in 2008 that he had a sexual interest in children. He did not tell J. the truth about his offence against SE. initially. He did not tell his probation officer or the treatment team at CAMH that he was a father. Dr. Woodside said that this pattern of non-disclosure led him to question whether G., if he suffered from recurring fantasises about sex with children, would seek help.

[86] Avoidance of High Risk Situations

Dr. Woodside testified that he has never before worked with a child sexual offender such as G. who was living in a home with children. Dr. Woodside said that the primary focus for treatment of child sex offenders is "the avoidance of high risk situations". He was reluctant in his evidence to endorse any arrangement that would increase G.'s contact with his children. For example, he said, a diabetic is wise if he does not even enter a chocolate shop; why should a pedophile take a chance by increasing his exposure to children?

[87] Medication-Based Treatment

Dr. Woodside explained his decision to concentrate his therapeutic work with sex offenders to medication-based treatment. In his view there is "slightly better evidence" that medication is more effective than therapy. Over the past 12 years working with moderate to high risk offenders whom he has treated with medication, only 2 of approximately 100 have re-offended while taking the medication.

[88] Current Treatment with G.

Dr. Woodside gave evidence as to his work with G. since he began taking anti-androgen medication. He meets with G. every two months. The medication and dosage has been varied from time to time to try to lessen some of the unwanted side effects, such as fatigue and back pain. Blood tests indicate that G.'s testosterone level is "almost completely" suppressed. G. acknowledges to Dr. Woodside that he finds young girls attractive, but credits his work in mindfulness in avoiding having fantasies about sexual activity with these girls.

9.5 Dr. Gojer's Evidence

[89] Clinical vs. Actuarial Approach

Dr. Gojer assessed G. in 2016, two years after Dr. Woodside's last assessment. His approach was different than Dr. Woodside, in that he placed more weight on clinical rather than actuarial factors. Dr. Gojer observed that actuarial instruments "give you a number… clinical factors help with risk management." He explained that it is "misleading to talk about level of risk without talking about risk management….Risk can be high, but well-managed, and relatively low, but not well managed."

[90] Risk Management Approach

Dr. Gojer has had extensive experience advising and educating probation and parole officers as well as social workers in various agencies about risk and risk management. He said that even if G. scored low on a Static measure, the fact that he had a history of offending against a 7-year-old girl who was a family member means that the risk is very clear, and that the risk will likely increase as E. grows older. Dr. Gojer observed that G.'s test results and his pattern of offending indicate a preference for heterosexual contact, but said that that caution should be exercised with respect to male children.

[91] Experience with Similar Cases

Although it is rare that an offender is permitted to return to live in a home with children, Dr. Gojer has worked with such offenders—perhaps one or two each year. His evidence is that a careful management and supervision plan was designed to assist these individuals, and that follow-up indicates no re-offending.

Criticism of the Static

[92] Overestimation of Risk

Dr. Gojer testified that in his view the Static test (the Static 99, 99R and 2002R) overestimates risk, as the development group for the test is made up of more serious offenders from penitentiary populations, offenders with a higher incidence of psychopathology. He went on to say that evidence as to the effectiveness of such actuarial instruments to predict re-offence among child sexual offenders, and particularly intra-familial offenders, is "very weak".

[93] Limitations of Static Scoring

Dr. Gojer's scoring of G. on the Static was similar to that done by Dr. Woodside, but Dr. Gojer placed much less weight on that number. He pointed out that the Static tests did not consider, for instance, the experience of an offender in treatment, or his reaction to sex-drive reducing medication.

Phallometric Test

[94] Unreliability of Phallometric Testing

Although Dr. Gojer considered the results of G.'s 2008 phallometric test, he placed minimal weight on that data. He observed that courts in Canada and the U.S. recognize the unreliability of this testing, and thus do not allow phallometric results in evidence; an exception is made on sentencing, where evidentiary standards are less rigorous. Dr. Gojer pointed to the fact that G.'s phallometric test yielded questionable results. It indicated strongest sexual arousal to pubescent girls; pre-pubescent girls did not register, although it was a pre-pubescent girl who was his victim. the next highest level of arousal indicated was to rocks, an "obvious flaw".

Clinical Factors

[95] Dynamic Risk Factors

Dr. Gojer testified that he considers clinical or dynamic factors in 4 groups:

• Biological. For example, does the individual have a major mental illness requiring treatment?
• Psychological. E.g., "does the person have insight into the problem, does he take responsibility, and does he have high or low self-esteem? Does the person work well with his therapist? Can he be trusted?
• Social. Does the individual have supports in the community? A job? A healthy recreational outlet? A positive relationship with a spouse?
• Legal. Are there effective, enforceable legal mechanisms available to manage risk?

[96] Non-Exclusive Sexual Preference

It was important to Dr. Gojer that G. did not have an anti-social personality disorder and that his sexual disorder was non-exclusive—in other words, he is attracted to adult females as well as pubescent and pre-pubescent girls. Dr. Gojer's evidence is that, like psychopaths, offenders with an exclusive sexual preference for children are much harder to treat successfully. They are in his view truly "incurable", whereas there is some evidence that individuals with a non-exclusive sexual preference for children may succeed in suppressing an arousal in the future after treatment.

[97] Participation in Treatment Programs

Dr. Gojer also considered and placed weight upon G.'s participation and growth in four programs of group therapy for child sexual offenders at CAMH (2010, 2012, 2014 and 2016), and his experience in group therapy at the Manasa clinic. Dr. Gojer noted G.'s taking responsibility for his offending, his acknowledgement of the need to be aware of his thoughts, and his articulation of pro-social goals. The 12 week Manasa program focussed on "understanding cognitive distortions, the role of fantasy in sex offending, cycle of offence, shame, pornography and its impact, victim impact, healthy boundaries and relationship understanding risk and a relapse plan". G. credited the training he received in this therapy with the fact that he was not having fantasies about sex with young girls even before he began taking anti-androgen medication.

[98] Understanding of Illness

Dr. Gojer found that G. has "a good handle" on understanding his illness and relapse prevention. He found that J. has a good understanding of G.'s illness, believes that it is lifelong, and accepts that continual monitoring of G. is required.

[99] Positive Factors

Dr. Gojer was impressed with the many positive factors in G.'s situation, noted below:

• G. understands and takes responsibility for his offending.
• 7 years without re-offending.
• Pro-social goals and behaviour.
• Two years of compliance with strict conditions of supervision by the Society.
• Diligent pursuit of education and therapy to manage his sexual disorder.
• A willingness to take medication in order to stay connected to his family, despite the very negative side effects.
• A non-exclusive type of pedophilia, which makes him more likely to benefit from treatment.
• A willingness to engage in therapy, and a good connection to therapists.
• A willingness to work with the Society, and a good relationship with the supervising social worker.
• An understanding and acceptance of his condition, and possible triggers.
• A supportive relationship with his spouse.
• The strong motivation which he and J. have to keep their family together.

[100] Current Risk Level

Dr. Gojer said that he believed that G. had offended during a unique, very high stress and low-support phase of his life. He said that clinically, he considered G. to currently be at low risk to re-offend. He found that it was "highly unlikely" that G. would attack either of his children.

[101] Truthfulness

Dr. Gojer was concerned with the fact that G. initially concealed the truth about his situation from his probation officer and the CAMH treatment staff, because his truthfulness is important in managing his disorder and in his being willing to get more help if required. Dr. Gojer testified that G.'s results in psychological testing as well as his interview impressions gave him confidence that G. was currently "open and forthright" in dealing with his sexual disorder.

[102] Child-First Approach

Despite his view that G. is "highly unlikely" to sexually abuse his children, Dr. Gojer was clear that "we must place the child first" and treat G. as an individual who is at risk to offend against children again. That does not mean to him that G. is like "a wild beast", waiting for any unsupervised moments to offend. Rather it means that a reliable system to monitor changes that may increase risk, combined with informed supervision of G.'s time with the children, should be in place.

Medication Questioned

[103] Necessity of Medication

Dr. Gojer questioned the need for the use of anti-androgen medication for G., given G.'s report that he had not experienced fantasies about sex with young girls (as distinct from an acknowledgement that he felt an attraction) since well before his use of the medication. Dr. Gojer's view is that since research indicates that therapy is as effective as medication in controlling these urges, use of medication should be avoided unless clearly necessary. Dr. Gojer said that he would use this medication only in very high risk cases, such as management of a serial rapist.

[104] Health Effects of Anti-Androgens

Dr. Gojer testified that in treating the non-exclusive pedophile, one therapeutic important goal is to encourage the development of a healthy adult sexual relationship. Anti-androgens make this very difficult, and have other effects detrimental to health with long-term usage—damage to the liver and bones, fatigue, and loss of sexual interest.

Recommendations

[105] Recommendations for Full Reintegration

Dr. Gojer's opinion was that the current regime of allowing G. in the home during the day, supervised by J., can safely continue, but that steps could be taken which would result in G. being completely and safely integrated into the home—sleeping there at night, as well as being there during the day. Those steps are:

• Initiating couples counselling for G. and J., to strengthen their relationship and improve communication. Dr. Gojer also noted that the therapist would serve as another monitor of the family's home life, as it is difficult to mask dysfunction from a therapist who is seen regularly.
• Individual counselling for J. Dr. Gojer found that therapy would be beneficial for J. because of issues in her family history, as well as the stress she faces in being responsible for supervision of G. Again, that therapist would serve as a monitor of the family's home life.
• Simple "engineering" of mechanisms that would help J. monitor G.'s movements in the home—for example, a lock on the bedroom door to which only J. would have the key, and baby monitors in the children's rooms to allow her to awake if required.

9.6 Stephanie Swayne

[106] Background

Stephanie Swayne has a Master's degree in social work and was employed at the Sexual Behaviour Clinic at CAMH participating in assessments and conducting group therapy for 12 years before leaving to work in private practice in 2015. Ms. Swayne worked with G. at CAMH in two group therapy programs (2010 and 2012) and in individual therapy from late 2014 to early 2015.

[107] Observations of G.

Ms. Swayne said that participants in group therapy discussed understanding risky situations, development of pro-social values, mindfulness, healthy relationships, and boundary setting. She found that that G. was cooperative and engaged in group sessions. When she met with him in 2014 for individual therapy (after completing the program at the Manasa clinic), Ms. Swayne was "impressed" by his understanding of the issues involved in his diagnosis and specifically in management of the risk he posed to his children.

[108] Disclosure in Group Therapy

Ms. Swayne testified that participation in group therapy at CAMH was voluntary, as was disclosure of the reason an individual was attending. G. was open about this, identifying that he had offended against a young family member. When questioned by Society counsel as to whether she was concerned that G. had not disclosed that he was a father, Ms. Swayne said that he still "participated meaningfully" in the group, noting that it was unusual for participants to disclose "everything".

[109] Safety Plan Development

In 2014, at G.'s request, Ms. Swayne met with him and J., and Katie Konyk, another CAMH worker who was counselling J., in order to develop a safety plan that would meet the safety concerns of the Society and allow the family to stay together. Ms. Swayne met 3-4 times with G. and J. and Ms. Konyk to develop the plan. She visited the couple at home, and met with the Society, the couple, and the lawyers involved.

[110] Safety Plan Details

In the safety plan G. and J. developed rules to manage risk in the home. Many of these rules were already in place—e.g., "G. is never to take the children to the bathroom". J. and G. strategized about how to handle unexpected situations—e.g., what G. would do if he came out of the shower thinking he was alone, and saw the children there. They also planned how to handle emergencies. For example, if J. had to be hospitalized, they identified who could take over care of the children.

[111] Handoff to Society

Ms. Swayne passed the finished safety plan on to family service worker Gustavo Guillen in January 2015, when she was leaving CAMH. She expected that the next step would be that the Society would meet with the parents and provide feedback, and that the parents would work with CAMH to fine tune the plan.

[112] Plan Not Implemented

That did not happen.

[113] Experience with Similar Cases

Ms. Swayne testified that she had worked at CAMH and in private practice with other clients in the same situation as G. and J.—parents of young children who wanted to stay together even though the father suffered from pedophilia. She said in cross-examination that no one would ever say that there was no risk in such a situation, but that in some cases the risk can be managed safely. She said that at CAMH while she was there, that if a family with a pedophiliac father wanted to stay together, that the staff at the family support program would work to see if the risk could be safely managed. She had advised the Society worker of the names of other workers (in his agency and another agency) who had done this work.

9.7 Katy Konyk

[114] Background

Katy Konyk is a social worker employed at CAMH. She has a Master's degree in social work, and did a practicum at the Sexual Behaviours Clinic supervised by Stephanie Swayne. J. contacted her in March 2014 in order to get information to help her better understand the risk which G. potentially posed to the children, and to get supportive counselling for herself as a supervisor.

[115] Counselling Sessions

Ms. Konyk and J. had five in person counselling sessions, lasting about an hour, as well as a number of telephone counselling sessions last 45-60 minutes. Their last session was at the end of May, 2015. Ms. Konyk discussed with J. general psychological information about child sexual offenders, explained the tools used to assess offenders, and talked about strategies to manage risk and to control the stress in her life.

[116] Observations of J.

Ms. Konyk testified that J. was pleasant, cooperative and "passionate" about keeping her family together. She was motivated to understand risk and her role in managing that risk. Ms. Konyk's evidence included the following observations:

• J. was confused about Dr. Woodside's 2014 report—that G. was still at moderate to high risk of re-offending. That view did not fit with her experience of G. now. She noted that G. had made many changes and had done a lot of work, saying that she did not feel he would harm the children. She was open to discussion about this. Ms. Konyk explained to J. how the Static 99 was scored, that it was an actuarial instrument that did not take into account factors like G.'s work in therapy. That helped J. to understand Dr. Woodside's report better.
• Ms. Konyk discussed with J. dynamic risk factors, what could change. J. impressed her as being committed to understanding the risk, and receptive to feedback.
• Ms. Konyk explained to J. in detail what pedophilia and pedohebephilia meant—she was open to this information. They also discussed what had been "missing" in J.'s family of origin, and the importance to her of giving her children a strong, loving family experience.
• Ms. Konyk discussed with J. the stress of having G. not living at the home full-time, and how to parent while still monitoring him. Ms. Konyk reassured her that she could fulfill the role of supervisor and still be a loving mom, and build a strong family.
• Ms. Konyk suggested further work that J. could do to deepen her understanding of G.'s illness—internet research and a video. J. did this.

[117] Safety Plan Assistance

Ms. Konyk assisted J. in developing the safety plan for the Society, but was clear that she did not write it—J. and G. did. She testified that J. was able to explain G.'s diagnosis, the risks involved, and his triggers.

9.8 Society Workers

[118] Lack of Experience

The C. family has had contact with three Society workers, Elisabeth Fitzgerald, Laurentiu Sasarean and Gustavo Guillen. None of these workers have ever dealt with a family in which a parent was a convicted child sex offender, and in particular with a family that wanted to stay together under such circumstances. None of the workers made inquiries within their agency or to other agencies to find professionals who had dealt with such a case.

[119] Cooperative Parents

All the workers testified that the parents were cooperative and pleasant to deal with.

9.8.1 Elisabeth Fitzgerald

[120] Investigation and Assessment Worker

Ms. Fitzgerald, the investigation and assessment worker, was involved for about 6 weeks. The substance of her evidence has already been set out above.

[121] Initial Findings

Ms. Fitzgerald found that P. and E. appeared healthy and happy; she had no concerns about their development. Ms. Fitzgerald testified that although she told J. that G.'s condition was a "lifelong disorder", she did not spend time explaining this to her. She said that although J. assured her that she never left G. alone with the children, she did not think that was an important fact to be included in her affidavit evidence.

9.8.2 Laurentiu Sasarean

[122] Family Service Worker

Mr. Sasarean was the family service worker for about 10 months, from November 2013 to August 2014. He initially searched for a professional to do an assessment of G. and contacted Dr. Gojer. Dr. Gojer declined, saying that he was more involved in treatment than assessments.

[123] Misunderstanding of Recidivism Research

Mr. Sasaerean's evidence was that Dr. Woodside's reports (June 2009 and January 2014) were his primary source of information in his assessment of risk in the family on an ongoing basis. Mr. Sasarean testified that his understanding was that the risk of re-offending was 'very high" for child sexual offenders. This belief was contrary to the evidence of both Dr. Woodside and Dr. Gojer as to the research on recidivism.

[124] Concerns About J.'s Supervision

Mr. Sasarean went on to say that he believed that J. did her best to supervise, but that the Society had a concern about her ability to do so in the long term. He did not think that J. believed that G. would re-offend. It was not clear if he clarified with her that she had this belief because she was supervising him consistently, or because she simply didn't believe that he would be capable of offending.

[125] 24-Hour Supervision Requirement

Mr. Sasarean testified that the Society could not approve any plan that would allow G. to stay in the home supervised by J., because 24 hour supervision was necessary: the supervisor would have to be awake all night while G. was sleeping.

[126] Rejection of Camper Plan

When Justice Katarynych's order was made in April 2014, G. and J. developed a plan whereby he would sleep in the evenings in a camper in the driveway and J. would lock the door, not admitting him until morning. The door had double locks. Mr. Sasarean consulted his supervisor, and rejected this plan as insufficiently protective.

[127] Monitoring Visits

Mr. Sasarean testified that he made approximately 20 visits to the family, some of which were unannounced:

• During these visits he questioned P. about sleeping and bathing arrangements on these visits, and questioned J. about the daily routine.
• He agreed that there was no indication that J. was not supervising G. consistently.
• He agreed that after the April 2014 order which required G. to vacate the home in the evenings, there was no evidence that there was a breach.
• He agreed that the children always appeared well-cared for.

9.8.3 Gustavo Guillen

[128] Current Family Services Worker

Gustavo Guillen is the current family services worker, and the worker who has worked with the family for the longest time—23 months.

[129] Working Relationship

Mr. Guillen testified that J. and G. had been cooperative with him, and he felt that they had a good working relationship. J. and G. said the same thing in their evidence. J. observed that one thing that helped in the communication was that Mr. Guillen, like G., was of Latin American background, and that both spoke Spanish as their first language.

[130] Observations of Family Dynamics

Mr. Guillen testified as to the following observations he made in his visits to the family every two weeks over 23 months:

• The children are "close" to G.; they are "very comfortable with him".
• G. is "a very good father….he loves his children and works very hard for them".
• Although G. cannot hug or kiss the children (as per the restriction in the April 2014 order), they love him and show it.
• Mr. Guillen would expect the children to suffer emotional harm if their father daily was removed from their daily lives, and they would likely require treatment.

[131] Compliance with Conditions

Mr. Guillen's evidence was that the parents have been compliant with the many conditions in the April 2014 order. In all his visits, announced and unannounced, including the unannounced 5 a.m. visit, he has never seen indications that G. and J. had breached the order which provided for supervision of G. when he was with the children, and directed him to leave the home in the evenings to sleep.

[132] J.'s Compliance Details

Mr. addressed in detail how J. has complied with the order:

• He described the steps she has taken to insure that the children are not alone with G. even during brief periods, such as when she may be in the bathroom.
• He reported that she is teaching P. about "good touch/bad touch".
• He agreed that she has accessed counselling services at CAMH to educate herself about G.'s condition and support her in her role as supervisor.
• He said that on the few occasions on which G. was with P. not in her presence, J. insured that he was supervised by a responsible adult who understood G.'s disorder and the necessity for supervision.
• He agreed that she has signed consents for the Society to speak with collaterals, and is generally cooperative.

[133] Assessment of J. as Supervisor

Mr. Guillen testified that J. is "a very good mother" and "will put her children first". He is confident that J. would report a breach by G., if that occurred. In his opinion, J. is an appropriate supervisor for G.'s contact with the children. Despite his view, Mr. Guillen acknowledged that the Society was concerned that J. might minimize the risk to the children. He agreed that statements J. had made in the past to the effect that she did not think the children were at risk when around him could mean simply that she thought there was no opportunity to harm the children if she was always supervising.

[134] Recommendations for Further Assessment

Mr. Guillen testified that a family–centred conference in this case had recommended a second opinion after Dr. Woodside's January 2014 report was received, but the Society was not willing to fund such an opinion. Mr. Guillen said that it "could be worth assessing" Dr. Gojer's recommendations, which had been produced recently for the trial.

[135] Uncertainty About Society's Plan

As far as the Society's plan, Mr. Guillen's evidence was that it was premature to talk about specifics. He was not sure:

• if the Society would require access to be outside the home;
• what duration and frequency would be approved and facilitated;
• and whether J. would be considered by the Society to be an acceptable supervisor.

[136] Willingness to Supervise

Mr. Guillen said that it was unrealistic to think that access would occur every day, and agreed that the case would not qualify for the Saturday access program in Toronto. Mr. Guillen added, however, that if a third party supervisor was required, that he would volunteer, outside his normal duties, to supervise access on alternate Saturdays.

[137] Follow-Up Meeting Not Held

Mr. Guillen testified that he had understood after the parents presented their safety plan in January 2015 that there would be a follow-up meeting with CAMH staff and the parents in which the Society gave feedback. However, the meeting never took place because Ms. Swayne left CAMH, the parents were without counsel, and no one from the Society or CAMH rescheduled. Mr. Guillen leave a message for G.'s CAMH counsellor Rob Peach, and received no reply; no further follow up was done. He considered referring J. and G. for couples counselling, but did not do so because he did not want to overload them.

9.8.4 Jennifer Maryk

[138] Unscheduled Witness

Society counsel called an unscheduled witness, supervisor Jennifer Maryk, to "clarify the Society's plan".

[139] Limited Involvement

Ms. Maryk has never met or observed J., G., or the children and has never discussed the case with Dr. Woodside or Dr. Gojer or any of the CAMH personnel involved with the family. She supervised the family service workers in this case, but was absent for most of the time the case was open at the agency (24 out of 34 months absent).

[140] Reliance on Workers

Ms. Maryk testified that she had confidence in the experienced workers assigned to this family, and relied upon their observations and assessments.

[141] Society's Plan

Ms. Maryk evidence was that the Society's plan—as to the children's contact with their father—was to allow up to 4 hours of access each day, to be supervised by someone other than J. who had an understanding of G.'s history and the Society's concerns. The Society was not in a position to provide such supervisors, but would assess anyone put forward by the family. She explained that this plan was a balance between giving the children quality time with their father, and protecting them. Her plan when the trial was concluded was to ask the Simcoe agency to supervise on behalf of CCAS Toronto. She acknowledged that that agency has no Spanish-speaking workers, and relies on interpreters.

[142] Society's Concerns

Ms. Maryk's evidence was as follows:

• The Society's protection concerns stem not just from Dr. Woodside's reports and G.'s record of sexual abuse of a child and indecent exposure, but from J.'s minimization of his history and the risk.
• Although the children did not report to her workers that their father was ever in the house in the evenings to sleep, she was suspicious that they had been coached.
• Ms. Maryk's understanding is that Dr. Woodside assessed G. as "moderately high" risk to reoffend; she was unaware that his evidence now was that he could be seen as "low to moderate" risk of reoffending.
• Ms. Maryk believed that research demonstrates that child sexual offenders "often re-offend".
• Ms. Maryk was "unsure" as to whether J. would report abuse by G. She questioned whether J. would recognize if G. was "grooming" the children for sexual abuse.

9.9 Jacqueline R.

[143] Family Support

Jacqueline R. is a strong support to the C. family. She is the former wife of John M., G.'s cousin. When G. first came to Canada, he lived with her and John and their children, and she regarded him as, "one of the kids". She and John separated about 9 years ago, but have remained on good terms.

[144] Relationship with J.

Ms. R. has known J. from the time that she and G. began dating. When the children were born, J. often asked Ms. R. for advice about their care (since she was not close to her own mother), and Ms. R. gave advice about many; things, such as the importance of routine.

[145] Observations of Children and Parents

Ms. R. sees P. and E. 2-3 times a month since the family moved to Bradford; when they lived in Toronto, the contact was more frequent. She sometimes babysits for J. Ms. R. makes the following observations:

• The children "are great"—happy, outgoing, well-behaved—"a joy to be around".
• J. and G. are "really good" with the children—patient, focussed in their discipline, "really enjoying" the children.
• G. is conscious of trying to do everything he can in the house to relieve J. of some of the responsibility.

[146] Understanding of G.'s Condition

Ms. R. read Dr. Woodside's report about 3-4 years ago, and is aware of his convictions for sexual assault of SE. and of indecent exposure. She felt "uncomfortable" when she found out what G. had done, but she accepts and believes that "it did happen". Ms. R. understands that G.'s condition is lifelong, and understands the necessity of supervision of his contact with the children.

[147] Protective Measures

Like J., Ms. R. has talked with the children about "good touch/bad touch". She checks with them periodically about who is bathing or toileting them or putting them to bed. She has assisted the children in the bathroom and bathed them, but has never seen G. do these things, and has never had the children tell her that he has done so.

[148] Warning Signs

Ms. R. identified circumstances that would lead her to be concerned that G. might decompensate and be at risk of offending, such as financial stress or use of marijuana. She said that if she observed these things, she would contact the Society and would talk to him and J. about what further supports were needed.

[149] Accommodation Arrangement

Ms. R., her two adult daughters, and her mother live in a home in west end Toronto. After G. was required by the April 2014 order to maintain a residence where he could sleep outside his family home, she or John or Edgar (another cousin) offered him night time accommodation. G. has lived in her home in the evenings since shortly after the April 2014 order which required him to leave his home in the evenings.

[150] Evening Routine

She testified that during the work week G. comes home to retire at about 10:30 p.m., and leaves very early in the morning. His bedroom is next to hers, so she hears him coming and going. On the weekends, he leaves at about 8 a.m., and returns late, at about 12:30 a.m. If he is going to be late, he calls her.

[151] Consistent Compliance

There have been no nights that G. has not slept at her home.

In response to the possibility that the court might not permit J. to supervise G.'s time with the children, Jackie testified that she is willing to supervise G., for the 4 hours allowed by Society up to 3 days each week. She works Saturday, Sunday and Monday, so the only available days would be Tuesday–Friday. She would supervise from her home in Toronto, possibly being able to go to Bradford once a week.

9.10 G.'s Evidence

[152] Opening Statement

G. began his evidence by saying "I suffer from pedophilia and exhibitionism. I pose a risk to my children. We are here to see how we can manage that risk." G. said that he hoped that the risk could be managed to allow P. and E. to have him in their lives as their father.

[153] Difficulty Accepting Diagnosis

G. testified that he had been slow to accept the reality and implications of his diagnosis. He had thought of himself as a "good and loving person", and had great difficulty accepting that he was attracted to pubescent and pre-pubescent girls. He questioned how could that be, if he was a "good person". G. said that learning to accept these facts and educating himself about his condition has been a gradual process.

[154] Initial Dishonesty

G. acknowledged that part of his initial reluctance to accept his diagnosis was his failure to be honest with J. At first he denied abusing SE. When he did admit the abuse, he wrote down what he had done, rather than telling J. face to face. He did not then give J. Dr. Woodside's report, because he was still trying to "make sense" of what it meant. Before P. was born, G. told J. that he was "cured".

[155] Current Acceptance

G. testified that he has, due to the therapeutic work he has done over the past six years as well as support from J. and from his religion, reached a point where he accepts his condition and the risk he poses to children, including his own children. He says that he has not offended since his arrest, and is confident that he can continue to live a healthy life and be a father to his children.

[156] Participation in Treatment Programs

G. has participated in multiple therapy groups to assist him in understanding and dealing with his diagnosis. These groups include the CAMH Mainstream Sexual Offender Relapse Prevention Treatment groups in 2010, 2012, 2014 and 2015. That group is a 12-16 week program in which clients work through a series of exercises to reduce the likelihood of re-offending. CAMH psychologist Dr. John Arrowood has worked with G. in some of these groups, and describes the program as follows:

"Topics include acceptance of responsibility for offences, development and enhancement of victim empathy, understanding and identifying distorted cognitions that support sexual offending, identification of emotional and environmental precursors to sexual offending, the development of an offence cycle summary, and fantasy management strategies. The group also focuses on the acquisition of a variety of life skills including building health relationships, confidence and self-esteem, emotional control, creativity, goal setting, achieving happiness, health knowledge and spirituality. The final stage Involves the development of a community based relapse prevention plan. The relapse prevention plan encompasses the above concepts and is tailored to the individual."

[157] Initial Referral

G. was referred to the first CAMH program by Dr. Woodside, and started it after his release. He started the second group when Immigration Canada required an assessment of him following his conviction.

[158] Manasa Clinic

When Society began its action, G. sought further treatment at Dr. Gojer's Manasa clinic, where he participated in a 12 week program similar to the CAMH program described above.

[159] Progress in Treatment

CAMH therapist Stephanie Swayne worked with G. before and after his participation in the Manasa group. She observed a real increase in his acceptance and understanding of his condition after he returned from Manasa. She testified that it was rare to have a CAMH client be motivated to participate in the Relapse Prevention group more than once.

[160] Further Steps

G. has taken the following further steps to manage his condition:

• He and J. worked at CAMH with Stephanie Swayne and Katy Konyk to develop a safety plan to try to meet the Society's concerns.
• Since April 18, 2016 he has also participated in the CAMH Follow-up group, run by Dr. Arrowood. Dr. Arrowood says that this is a group for treatment clients who have completed the Mainstream curriculum and want "continued support in monitoring factors that affect their risk to re-offend". Participants share information about their daily lives, and explore how events may affect their risk to re-offend and how they are addressing these risks. Participants may attend this group as long as they wish.
• He is engaged in individual therapy with Rob Peach, a CAMH therapist.
• For the past three years he has met regularly with Father Charles, the priest from his former parish, for counselling. Father Charles is aware of G.'s condition. G. is a Catholic, and attends mass regularly.
• G. discussed his past "false thinking", giving as an example his perception that SE. had wanted his sexual attention.

[161] Mindfulness and Fantasy Control

G. testified that he has been able to acknowledge that he has an attraction to young girls. He testified as to how his training in mindfulness helps him control his thinking, so that he does not engage in fantasy about sexual activity with them. This involves being aware of his thoughts and how to control those thoughts and how to redirect himself to positive images—mainly images of his children and J. G. said that he had not engaged in any fantasizing involving young girls since his imprisonment.

[162] Response to Fantasies

G. was asked what he would do if he found himself having a sexual fantasy about either of his children. He answered that, despite the fact that this thought was repugnant to him, he accepted that he was a potential risk to them. He replied that he would tell J. and his therapist immediately, and tell Society's worker. He would voluntarily move away from the home, until everyone agreed that he could return.

[163] J.'s Ultimatum

G. said that J. has warned him that if there is any sign that he has abused either child, she will take the children and leave him. He has no doubt that she would do so. His evidence is that If J. asked him to leave, he would leave.

[164] Positive Activities

G. gave examples of how the therapeutic work in which he has engaged inform his daily life, by orienting him to positive activities and relationships:

• G. greatly values J.'s support and love. He said he has learned that maintaining a healthy relationship with her is critical in helping him to avoid re-offending, and considers their communication to be good and open.
• He tries to maintain other friendships as part of a healthy lifestyle.
• G. has developed interests which occupy his energies—painting, playing the guitar, and gardening.

[165] Daily Life Structure

G. also testified as to the ways in which he and J. structure their daily lives to avoid situations which are risky:

• G. texts J. on his way home. This prompts her to finish activities that might be more difficult if he and the children were both present.
• The high point of G.'s day is when the children run to him as he gets home. He is, however, careful not to initiate hugs or kisses; when the children want to kiss him, he gives them his cheek. He is careful not to let either child sit on his lap, and tells them that they can sit beside him.
• At home, the ground floor is open plan. G. and J. will often cook the evening meal together, while they watch the children play.
• While J. is in the room, P. plays board games with his father, and E. may join in.
• G. is able to read the children a bedtime story every night, with J. present.
• When G. leaves the house in the evening to return to Toronto, J. turns a deadbolt which she does not unlock until morning. Before G. leaves, J. watches him take the medication prescribed by Dr. Woodside.

[166] Identified Triggers

G. testified as to what he sees as possible triggers for re-offending: stressful situations, financial problems, trouble in his relationship with J., frequent use of pornography, and becoming isolated. He gave examples of how he has learned to avoid or manage these problems. He agreed that a further step forward would be for him and J. to engage in couples therapy, to strengthen their communication.

[167] Medication Side Effects

G. gave evidence about his use of sex drive reducing medication. The first medication tried, Androcur, made him tired and dizzy. Dr. Woodside switched him to Provera. G. said that its negative side effects are less serious, but still very unpleasant—heartburn, growth in the breast area, loss of hair, weight gain. The intended effect, a dampening of his sexual function, worries him. He cannot have a normal erection. This has affected his sexual relationship with J. G. said that he thinks it is important for him to have a healthy sexual relationship with her—to be "able to express my love in a sexual way".

[168] Backup Supervision

G. identified family members who could care for the children if J. was for some reason unavailable—for example, if she was ill. In addition to Jackie R., Jackie's daughter Nathalie and G.'s cousin Edgar and his wife are supports. All of these individuals are aware of G.'s condition and why supervision is required.

[169] Future Plans

G. hopes to bring his mother from Colombia to live with the family, and she could also potentially provide supervision. That is a long term project, however, as she must satisfy certain financial requirements from Immigration Canada before she will be allowed entry.

9.11 J.'s Evidence

[170] Affidavit Evidence

J. swore an affidavit which contained a part of her evidence in chief. I set out the concluding paragraphs of that affidavit:

42. Although G. has committed a shameful wrong in the past, he has shown our children and myself nothing but kindness and decency. He has never been harsh with the children or me. He has not physically or sexually abused any of us. If he did, I would leave him right away.

43. I am ashamed of what G. has done in the past. I live the consequences of that past every day. G. has told me that he does not want to harm me or the children and more specifically, that he is aware that he needs to manage and control his deviant behaviours. I believe G.'s sincerity. At present, I see G. working hard to protect himself against triggers that would lead to a breakdown and I see him continuing to work hard towards controlling his behaviours.

44. In addition, I now have a better understanding of G.'s diagnosis and am even more vigilant than I have been in the past prior to the involvement of the agency. If there are any changes to the routine at home, I would immediately be suspicious and question G. If G. presents in any way out of the norm, I would also question him. I am always aware and mindful that G. poses a risk to the children. If I ever suspect that G. may imminently have a breakdown, I would leave him immediately and inform the CCAS.

45. G. has been an excellent father to both children. He is kind to the children and loves them very much. He is an integral part of our family. The children know him as an involved father. I do not want our family to be split up.

[171] Gradual Understanding

J.'s evidence is that she came to understand G.'s diagnosis and its implications slowly. As set out above, when G. first admitted to J. when she was pregnant that he had abused SE., she was "in turmoil". She understood that he meant to change and would get "treatment", but did not understand that he suffered from a serious psychological disorder. Despite her limited understanding, she was cautious; when P. was born, she took care to insure that G. would not be alone with the child.

[172] Reading Dr. Woodside's Report

When J. read Dr. Woodside's report she learned more, but did not understand that G.'s condition was lifelong, and could be managed but not cured. The report did alert her to the fact that G. had offended against SE. within a short period of time, as little as ten minutes. That made her even more careful about monitoring the time that G. spent with P., and with E. after she was born. For example, J. said that in late 2013 (before the order directing G. not to sleep in the home in the evening), she attached a mechanism to the door of the bedroom she shared with G. so that she would be alerted if he opened it.

[173] Counselling with CAMH

J. started counselling with Katy Konyk at CAMH in late 2014; she describes their work together as "awesome". J. learned much more about G.'s condition and management strategies for that condition. For example, J. had not understood the Static 99R, the instrument upon which Dr. Woodside places so much weight, until Ms. Konyk explained. J. has continued counselling with Erin Stirr at CAMH. Those sessions are usually by telephone.

[174] Cross-Examination on Statements

J. was cross-examined at length about statements she made to others which the Society interprets as indicating that she does not fully understand or minimizes the risk arising from G.'s condition. For example, at a family centred conference in May 2015, J. was reported to have said that she didn't believe that G. was capable of hurting his children. J. testified that she meant to express that G. was working hard at managing his condition and was "not an evil person"; she did not mean to say that she did not believe that his diagnosis was not lifelong, or that he should not be supervised when with the children.

[175] Recognition of Warning Signs

J. testified that as a result of her work with Ms. Konyk and Ms. Stirr, she has learned what might trigger offending behaviour in G.: use of pornography, financial problems, and stress in their relationship. She would now recognize the "warning signs" that something was not right with G. She said that in 2007-2008, the period during which G. was offending, he would come in from work and ignore her, and did not socialize with friends; he isolated himself. J. reports that now G. joins in with her and the children gladly when he returns from work. If he has had a bad day, they discuss it. If J. sees "warning signs", she will know to insure that both G. and she get additional support, and that the Society is alerted.

[176] Willingness for Couples Counselling

J. is ready to engage in couples counselling as recommended by Dr. Gojer.

[177] Society's Response to Safety Plan

J. testified that Mr. Guillen advised her that the Society thought the safety plan developed by her and G. was good in the short-term, but not in the long term. She said that Society offered no suggestions for improvement of the plan, or further programming or other efforts that she or G. should make to try to keep their family together. Although J. was disappointed in Society's response, she testified that she and Mr. Guillen had a good working relationship, based on "mutual understanding and respect".

[178] Daily Routine

J.'s evidence gave comprehensive details about the family's daily routine during the work week and on weekends. I do not set out all this evidence, but give an example of how the routine is attuned to safety concerns. J. showers with G. after the children are in bed (before he leaves the home for the evening) or during the day while he is at work.

[179] Family Activities

Part of the family routine is to attend mass with the children each Sunday, either in Bradford or at their former parish in Toronto. Every Sunday G. prepares a Colombian breakfast for the family.

[180] Description of Children

J. described the children. E., 3 years old, likes to sing and is very active—"like a gymnast". She is learning more and more words. She loves to have her father read to her. P. is learning to read and is already 'a bookworm". He is "opinionated" and loves to tell her and G. about what is going on at school. When G. is working with tools at home, P. tries to join in. J. says that G.'s relationship with the children is "awesome".

[181] Future Employment Plans

J. is now at home full time with E. She is planning to return to work, and will register E. in a daycare program when she obtains employment. As she did during her previous employment, J. will be solely responsible for getting P. to and from school and E. to and from daycare.

[182] Concerns About Separation

J. worries that the children will suffer from the loss of daily emotional support of their father if G. is not permitted to continue being in the home. She will become a single parent, and it will be to her alone that the children can turn for love and guidance on a daily basis.

10. Analysis

[183] Balancing Factors

What order is in P.'s and E.'s best interests? In answering this question, the Act directs that I consider a number of factors:

• What is the degree of risk to the children involved in contact with their father?
• What is the risk to the children of an order that greatly restricts contact with their father?
• What is the importance of the children being able to grow up in their family?
• Are the children's needs for love, guidance and stimulation being met well now?

[184] Least Disruptive Course of Action

In making an order, I must choose the "least disruptive course of action" available to achieve the paramount purpose of the Act—to promote the best interests, protection and well-being of children.

[185] Central Issue

The Society and the parents are in agreement that any order I make should require that G.'s contact with the children be supervised. The issue is who should supervise that contact, and whether he can continue to live in the home, either as now, during non-sleeping hours, or full-time.

[186] Society's Plan

Society counsel argues that its plan reflects the proper balancing between protection of the children and maintenance of their relationship with their father. Realistically, that plan entails at the most perhaps 12 hours of contact a week, and likely much less time than that. The Society does not think that J. should supervise, and there is no other supervisor who can spend significant amounts of time supervising in the long term, given the logistics involved and the family's schedule.

• The Society itself has identified no resource available to supervise that meets its criteria.
• Although Mr. Guillen indicated a willingness to come on his own time, that cannot be the basis for a long-term plan.
• Ms. R. indicated a willingness to supervise for the 4 hours proposed by the agency three times weekly, but primarily at her house in Toronto. She has not been approved by the Society. Travel time between Bradford and Toronto, P.'s school schedule, G.'s work schedule, and J.'s schedule when she returns to work would make supervision in Toronto during the week difficult. Ms. R. works on weekend, and cannot supervise then.

[187] Parents' Plan

The plan that J. and G. put forward is basically a continuation of the status quo which has existed since April 2014, with the possibility of an extension that would allow G. to live in the home in the evenings if certain conditions are met. They argue that their plan gives the children the benefit of being raised in an intact, loving family, with protection in place that is appropriate given G.'s diagnosis and offence history. They point out that this plan has worked well over the past two years. They say that the quality of the relationship the children have with their father now, as a caregiver who is part of their daily lives, is vastly different from what could be sustained by one or perhaps two short visits a week—all that is likely possible under Society's plan.

The Society Plan

[188] Absolute Protection

The primary benefit of the Society plan is that it provides protection that is close to absolute for P. and E. against any possibility of abuse by G. Everyone agrees that risk of abuse is real; it cannot be forgotten that G. abused a child who was like a family member.

[189] Negative Aspects of Society Plan

There are, however, significant negative aspects to the Society plan:

• If the plan is implemented, it is likely that the children's relationship with their father will be damaged. Based on all the evidence, I find that this relationship is positive and important to them.
• If the plan is implemented, will J., in effect, become a single parent. The children will need to rely upon her for day-to-day care, affection, and guidance; the benefit to the family of having an active, caring father will be greatly diminished.
• If the plan is implemented, it will enforce a separation between J. and G. that will likely damage their marital relationship.
• These factors all threaten the stability of the children's family and home.

The Parents' Plan

[190] Positive Factors

Many factors support the plan put forward by J. and G.:

• P. and E. are healthy, happy children. No one questions that P. and E. have received good care from G. as well as J.
• The children have a loving relationship with their father as well as with their mother, a relationship that is supported by daily contact.
• J. and G. have worked together as a team to live as a family; there is no reason to conclude that they cannot continue to do so.
• The evidence supports a conclusion that the children are well-protected from the risk of abuse now. The supervision system directed by Justice Katarynych over two years ago has functioned properly. Workers have monitored the family's compliance by unannounced visits and interviews with the children and collaterals, such as the staff at P.'s school. G. has had no unsupervised contact with the children.
• J. and G. have demonstrated that they can work cooperatively with the Society under the current supervision order.

[191] Risk Assessment

The negative factor in the parents' plan stems from the risk of abuse by their father that may be entailed by continued regular daily contact. In order to weigh that factor properly, it is important to explore the nature of that risk, G.'s current ability to manage the risk, and J.'s fitness to act as a supervisor and monitor of G.

What is the Risk in This Case?

[192] Society's Early Position

I begin by observing that the Society took a position very early that G. had to be removed from the home and that J. was not to be trusted to supervise his contact with the children. That position was based in part on a misunderstanding of the research about recidivism by child sexual offenders. For example, Mr. Sasarean thought that most such offenders re-offend. Those views were not expressed by Dr. Woodside (or Dr. Gojer).

[193] Lack of Evolution in Society's Position

The Society's view of the case has not changed over the three years that it has supervised, although it has found no evidence of unsupervised contact by G. with the children and has observed the continued healthy development of the children. The Society's appreciation of the understanding that both G. and J. have of G.'s condition and the potential risk that he poses to the children has not reflected the changes which the parents themselves have experienced in their views.

[194] Risk Assessment by Experts

Dr. Woodside ultimately assessed the risk posed by G. as "low to moderate"; Dr. Gojer ultimately assessed the risk as "low". Both agreed on G.'s diagnosis, and gave G. similar scores on the Static checklist. It is important to realize when dealing with the predictions made based on actuarial tables such as those which support the Static, that such instruments can tell you about recidivism within a group, but tell you nothing about the likelihood of any one individual within that group re-offending.

[195] Dr. Woodside's Treatment Objective

While Dr. Woodside declined to comment on the plans put forth by the Society and the parents, he made it clear that the objective of any treatment plan he endorsed was the elimination of any chance of re-offending by G.

[196] Dynamic Nature of Risk

Dr. Woodside conceded that G. at the present time may be doing well and not be "immediately at risk to go do something". He cautioned, however, that pedophilia puts G. at "actuarial risk" (as determined by the Static99R), and that this risk may be affected by dynamic factors that would make him more likely to act on that underlying preference, factors such as the loss of a job or a relationship. G.'s failure in the past to disclose his offending against SE. to Dr. Hucker and to disclose the fact that he had a child to his probation officer made Dr. Woodside question whether G. would report a decline in his ability to effectively control his deviant sexual preference.

[197] Non-Disclosure Concerns

I am concerned about the issue of non-disclosure by G. of information relevant to assessment of the risk he poses to children. I note, however, that G.'s failure to disclose this information occurred in 2008-2010, at the early stages of his becoming aware of and understanding the implications of his condition. I am satisfied from G.'s evidence as well as from the evidence of Stephanie Swayne and Dr. Gojer, who have discussed these issues with him more recently than Dr. Woodside, that G. would now be more likely to disclose if, for example, he found himself unable to resist having fantasies of sexual contact with children.

Risk Can Be Managed in the Home

[198] Weight Given to Dr. Gojer's Opinion

I give considerable weight to Dr. Gojer's opinion as to how well the risk which G. presents can be managed in the community and at home. Dr. Gojer has extensive experience in treating sexual offenders, including those who offend against children. In contrast, I note that Dr. Woodside's experience is more focussed on assessment and that his work in treatment has been restricted to treatment with medication.

[199] Dr. Gojer's Analysis

Dr. Gojer testified that clinical factors were more important to him in his assessment of G. than "the number" resulting from the Static2002R. Dr. Gojer provided a cogent, persuasive analysis of the factors which led him to the view that G. was currently at low risk, a risk that could be managed within the home. Dr. Gojer says that even though he considers G. low risk for many reasons, because protection of children is his top priority, he recommends a regime of supervised contact be continued as one management tool. This guards against the day that G. may, under stress, be more likely to act on his underlying deviant preference.

J.'s Role in Managing Risk

[200] J. as Supervisor

As Dr. Gojer observed, J. plays a critical role in any plan that keeps G. in the home. I understand the Society's initial discomfort with J. as a supervisor, given statements she made indicating that she did not think that G. would harm the children. Those statements do not, however, lead me to find that J. is not and would not continue to be a reliable supervisor. I say so for the following reasons:

• J. has shown an understanding of G.'s condition and the risk he poses to the children that has developed over time, as she has received more education and counselling.
• J. has historical problems using expressive language. From everything J. (and others) experience day-to-day, G. is a good and loving father. How can J. acknowledge this experience of G. as well as articulate that, based on G.'s diagnosis and history, he poses a risk to the children? These are not inconsistent beliefs, but to explain how she might hold both views may be beyond J.'s ability to communicate.
• J.'s actions in providing for supervision of G. speaks to her belief that he does pose a potential risk. Despite J.'s statements questioning whether G. would offend against his children, she has, since shortly after P.'s birth, acted to insure that he is not left alone with either child. She began this practice after G. admitted that he had abused SE., despite the fact that she then knew little about his diagnosis and its implications. Observations by the Society's workers, as well as the evidence of Jackie R., who is in the home frequently, support the finding that J. has continued this practice.
• J. knows that she risks losing care of the children if she does not supervise G. She knows that the Society consistently checks up on her supervision.

[201] J.'s Protective Instinct

The Society questions whether J. would be willing to contact them and/or leave G. if she saw any indication that he was abusing the children. In support of this submission, the Society points to J. telling Dr. Woodside in 2009 that she would leave G. if she found that he had actually abused SE., and then not separating when G. told her the truth. This comment was made by J. seven years ago when G. was still incarcerated. The comment was made before J. gave birth to a child. I do not rely on that comment to assess her current ability to be protective to P. and E. I accept the assessment of Mr. Guillen that J. is "a mother first", and will do what is necessary to protect the children.

Conclusion

[202] Preservation of Family

I do not think that it is necessary to destroy these children's family to provide them with protection against possible abuse by their father. As Dr. Woodside and Dr. Gojer said, the nature of risk in a case such as this can change. In the future it may be necessary to exclude G. from the family home. That is not necessary now. I am satisfied that the children can be protected against the risk posed by their father and continue to reside in a home in which they are loved and cared for by both parents with supervisory conditions that in many respects mirror the conditions of the interim supervisory order made by Justice Katarynych two years ago.

[203] Therapeutic Supports

The order I make will provide that therapeutic supports to this family be maintained, both to control the risk of G. re-offending and to create a likelihood that if his risk level was increased because of dynamic factors that support would be increased and Society would be alerted.

[204] Assessment of Alternate Supervisors

I also direct that Society take the steps it deems necessary to assess whether Jackie R. or any other individuals proposed by the parents are appropriate alternate supervisors for G.'s contact with the children.

[205] Medication Decision

I will not require that G. take sex drive reducing medication as a condition of supervision. If that medication is not required to control pedophilic fantasies—which according to the evidence, it is not—than it makes good sense that G. be free to reduce or eliminate the use of such medications, in order to strengthen a healthy sexual relationship with J. My order will be that G. continue in treatment with Dr. Woodside or with any other psychiatrist who is experienced in the management and treatment of child sex offenders, and that he follow the treatment plan developed with that psychiatrist.

11. The Order

[206] Disposition Order

I order that the children be placed in the care of their parents under Society supervision for a period of six months and subject to the following conditions:

1. The Society shall be permitted to make announced as well as unannounced visits to the family home.

2. G. continue in treatment with Dr. Woodside or with any other psychiatrist who is experienced in the management and treatment of child sex offenders, and he shall follow the treatment plan developed with that psychiatrist.

3. J. shall insure that G. is supervised at all times in his contact with the children. This supervision shall be provided by her or by another individual who is fully informed of the risk to be monitored and who works cooperatively with J. and with the Society.

4. Until further order of the court, G. is to maintain alternate accommodation to sleep outside the family home during night-time hours, and is not to be in the family home during those hours.

5. G. is not to act in a way that might trigger sexual touching of either child. For clarity, there is to be no kissing of any part of the body of child, no exposure or touching of the genitalia of either child, no bathing of either child or exposure of either child to their father's bathing, showering, or dressing.

6. J., with the assistance of the Society and other supports as arranged, shall insure that P. and E. are taught the difference between "good touch" and "bad touch", and educated as to what to do if he or she experiences "bad touch".

7. G. shall continue regular attendance at the CAMH Follow-up Group.

8. J. shall continue regular therapy sessions with Erin Stirr or another counsellor at CAMH or another agency, to provide support for her in her role as supervisor and to help her explore personal issues from her own family. These sessions can be conducted by telephone.

9. J. and G. shall sign releases as reasonably requested by the Society, including releases to allow Society to receive information from their therapists, G.'s psychiatrist, P.'s school, E.'s daycare facility, the family doctor, and any person whom J. plans to supervise G.'s interaction with the children.

[207] Conditions for Future Full Reintegration

Dr. Gojer testified that after some further work is done, G. should be able to be safely reintegrated into the daily life of the family home on a full-time basis. He recommended individual counselling for J., which I have ordered above. He also recommended as follows:

• G. and J. initiate and maintain couple's counselling.
• G. and J. install some system—perhaps simply a lock or buzzer on their bedroom door, with baby monitors in the children's rooms—that could alert J. if G. attempts to leave their bedroom in the evening. (Their bedroom contains an ensuite bath, so it should not be necessary for him to do so.)

[208] Future Review

I agree that if this further work is done, the issue of whether G. can return to the home full-time may be considered. If counsel for the parents wish to pursue the matter, then I direct that they contact the trial coordinator to set a date for any time after September 1, 2016 for an initial conference to determine what type of hearing is advisable to deal with this last issue. I expect that at the hearing, when scheduled, the court will have confirmation that this further work has been done and is ongoing, and that the parents have complied with other conditions of supervision already ordered.

[209] Continued Direct Supervision

Ms. Maryk indicated in her evidence that the Society intended to outsource its supervision of this family to the Simcoe agency. I understand that it is a burden for CCAS to continue to supervise this family, who live a 45-60 minute drive from Toronto. However, I think it is important for the agency to continue its work directly, at least over the transition period of the next 6 months. The circumstances of the case are difficult, and it is important that someone with a good relationship with the parents and understanding of the facts assist them during this period. It also seems helpful that a worker who speaks Spanish, such as Mr. Guillen, be there to work with G. I would therefor appreciate it if the Society continued to supervise directly during this time.

June 17, 2016

Justice E. Murray