WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act 2017 and is subject to one or more of subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Child, Youth and Family Services Act 2017, which deals with the consequences of failure to comply, read as follows:

87.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — Where 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 re 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) Prohibition re identifying person charged — 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.

142.— (3) Offenses re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2018-07-03

Court File No.: Windsor 71/08

Between:

Windsor-Essex Children's Aid Society Applicant,

— AND —

Ju. C., Respondent;

and

Jo. C., Respondent.

Before: Justice Barry Tobin

Heard on: April 16, 17, 18, 19, 20 and 23, 2018

Reasons for Judgment released on: July 3, 2018

Counsel

David Ziriada — counsel for the applicant Society

Paul Mingay — counsel for the respondent Ju. C.

Aileen Manalang — counsel for the respondent Jo. C.

Reasons for Judgment

Introduction

[1] This is a child protection application under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the "Act").

[2] The child, R. Jo. C., was born … 2015 (the "child"). Ju. C. is the child's birth parent (the "mother"). Jo. C. is a parent of the child (the "father").

[3] The child was brought to a place of safety in Essex County upon release from the hospital following his birth. He has been in the continuous care of his paternal grandmother A. C. and paternal uncle D. C. since his release from the hospital on September 8, 2015.

[4] The Society seeks a finding that the child is in need of protection as defined in cl. 74(2)(d) of the Act. The disposition order requested is that the child be placed in the care and custody of the paternal grandmother and uncle subject to Society supervision, for a term of 12 months, pursuant to ss. 101(1) of the Act. The Society also seeks an order that the mother and father have supervised access to the child.

[5] The parents seek an order dismissing the application on the basis the child is not in need of protection.

The Issues

[6] In this hearing, the following issues are to be decided:

1. Is the child in need of protection under cl. 74(2)(d) of the Act? and

2. If the child is found to be in need of protection, what disposition and access orders are in the child's best interests?

Statutory Findings

[7] As required by ss. 90(2) of the Act I make the following statutory findings:

(a) The child's name and age: R. Jo. C., age 2 years, born … 2015;

(b) The child is not a First Nations, Inuit or Métis child; and

(c) The child was brought to a place of safety before the hearing from within the County of Essex.

Is the Child in Need of Protection?

A. Facts

(i) Finding the parents' older children in need of protection

[8] The mother and father are the parents of two older children, B. C. (… 2009) and G. J. C. (… 2010). Both children were removed from the care of the respondents shortly after their respective births.

[9] By order of Justice Bondy dated April 11, 2013, both children were found to be in need of protection under cl. 37(2)(d) of the CFSA.

[10] This clause provides that a child is in need of protection where "there is a risk the child is likely to be sexually molested or sexually exploited" by the person having charge of the child.

[11] The disposition ordered was to place the children in the custody of their paternal grandmother and uncle under s. 57.1 of the CFSA. The respondents were granted supervised access to the children.

[12] The order of Justice Bondy remains in force.

[13] The finding that the children were in need of protection was based upon a Statement of Agreed Facts that was signed by the mother and the father (Exhibit 4).

[14] The Society again relies upon the admissions contained in the Statement of Agreed Facts as one of the bases for asking the Court to find the child in need of protection.

[15] Included as part of the Statement of Agreed Facts were the following documents which contained evidence relied upon by the Court in that hearing:

(a) The transcript of the father's guilty plea hearing before Justice G. DeMarco on March 27, 2006;

(b) The transcript of the father's guilty plea hearing before Justice D. W. Phillips on April 10, 2008; and

(c) The Parenting Capacity Assessment undertaken by Dr. Jay McGrory dated June 11, 2010.

[16] The Statement of Agreed Facts sets out that the father was convicted of the following offences:

a. September 19, 1988 – Possession of narcotics;

b. January 5, 1989 - Fail to comply with recognisance;

c. March 1, 1989 — Break and enter;

d. October 29, 1992 — Possession of stolen property;

e. March 23, 1994 — Possession of narcotics;

f. January 9, 1995 - Possession of stolen property;

g. April 29, 1996 – Assault

h. March 27, 2006 — Indecent act by exposing genitals to person under 16 years of age and invitation to sexual touching under 16 years of age;

i. September 12, 2007 — failure to comply with undertaking or recognisance; and

j. April 10, 2008 — Indecent act, breach of probation and possession of marijuana.

[17] It is the conviction of March 27, 2006 in particular that grounded the finding of risk under cl. 37(2)(d).

[18] From the transcript of the guilty plea hearing before Justice DeMarco it was admitted by the father that:

(a) The victim at the time of the offence was a 9 year old girl;

(b) The victim's mother was a neighbour and friend of the father. He would babysit the victim and her brother from time to time;

(c) The father admitted to sexually abusing the victim in or about April 2005 while babysitting by:

i) Making her watch videos of him masturbating;

ii) Making her video tape him while he masturbated; and

iii) Encouraging her to touch his penis.

(d) The police seized from the father after his arrest a computer that contained:

i) 10 to 15 minute videos of him masturbating while the victim held the video camera;

ii) A recording of him promising the victim a reward if she touched his penis;

iii) Videotape of neighbourhood girls and some adult women walking in front of his house with recorded sounds of sex acts as background; and

iv) Child pornography in the form of 14 photos and four movie clips that he had downloaded from the internet.

[19] The second document referred to in the Statement of Agreed Facts was a transcript of the father's guilty plea to three charges before Justice Phillips on April 10, 2008. The criminal charge of concern in the proceeding before Justice Bondy was that he committed an indecent act. The facts giving rise to the charge occurred on July 9, 2007 when a UPS driver was dispatched to pick up a parcel from him. When the driver arrived, she found the front solid door open and the glass screen door closed. She saw the father naked from the waist down sitting on a couch pulled up to approximately two feet from the front door. The father was seen by the driver to be holding a magazine and masturbating.

[20] The last admission of fact that supported this finding, made by Justice Bondy that the children were in need of protection was found at para. 4 of the Statement of Agreed Facts:

"Ju. C. and Jo. C. have separated in the past, and during periods of separation, Ju. C. has reported being abused by Jo. C. and she has reported to the police that Jo. C. threatened the lives of her parents. In each case, Ju. C. has recanted her statements attributing abuse of conduct to Jo. C. and she has returned to cohabit with Jo. C."

(ii) Parenting Capacity Assessment by Dr. Robert Dickey dated October 30, 2009

[21] Within the child protection application concerning the parties' two older children, Justice Phillips ordered that Dr. Robert Dickey conduct an assessment of the father pursuant to s.54 of the CFSA. The assessment was said to be necessary "[t]o determine whether, and to what extent [the father] poses any risk of harm, sexually, physically or otherwise as it applies to [the two older children].

[22] The parties agreed that in the case now before the Court the report prepared by Dr. Dickie could be filed as evidence on behalf of the Society and that Dr. Dickey would not be produced for cross-examination.

[23] Dr. Dickey prepared a report which is dated October 30, 2009 pursuant to the order of Justice Phillips (the "Dickie Report"). He framed his assessment as a:

"…[p]sychiatric assessment addressing [the father's] sexual or other harm to children."

• and-

"…the focus of our assessment, given the nature of our facility and my own expertise, would address primarily the issue of sexual harm."

[24] The father did not deny having engaged in sexual impropriety with the victim. He did provide a context for his actions to Dr. Dickie. According to the father:

(i) He had consumed LSD that day,

(ii) His father had just died,

(iii) His sister was in a wheelchair, and

(iv) He just wanted to "numb the pain" so he took the LSD.

The report does not include any explanation given by the father for his possession of pornography.

[25] The father was subjected to phallometric testing. The Dickey Report states that those test results "should be viewed with caution." Notwithstanding this caution, the opinions expressed in the Dickey Report were as follows:

1. From a psychiatric perspective the father does not suffer from a major mental illness.

2. He suffers from a deviant sexual preference involving nonconsenting sexual situations, excluding violence, most prominently of an exhibitionistic nature. In our opinion, it is extremely likely that he, in this context, suffers from sexual Exhibitionism. Exhibitionism is a disorder in which the preferred method of achieving sexual arousal and gratification is through the exposure of the genitals to unsuspecting individuals. The etiology of this disorder is unknown and the course is lifelong.

3. In addition, we cannot rule out Mr. C.'s suffering concurrently from Pedohebephilia. Pedohebephilia is a disorder in which the preferred method of achieving sexual arousal and gratification is through the interaction with or fantasy of the early pubescent or prepubescent child. The etiology of the disorder is unknown. The course of the disorder is lifelong. There is no known treatment which has been reliably demonstrated to change sexual preference. His possession of child pornography and offence-related behaviour significantly bespeak to the strong likelihood of his suffering this disorder.

4. In addition to his suffering from deviant sexual preferences involving Exhibitionism and Pedohebephilia, he also suffers from a personality disorder of mixed type of antisocial and narcissistic features. This would correspond to a DSM-IV TR category of Personality Disorder, not otherwise specified. Personality disorder is a longstanding pattern of maladaptive personality features and behaviour, which are of significant severity to interfere with interpersonal and socioeconomic functioning.

(iii) Other Police Encounters

[26] In this hearing the Society also relies upon further encounters the father had with the police.

[27] The father had four other encounters with police because of alleged inappropriate sexual behaviour on his part. None of these encounters resulted in criminal proceedings being brought against him.

[28] The police reports prepared in connection with these occurrences were admitted in evidence. Their admission into evidence was allowed because they are relevant to the issues raised by the Society in its case: has the father truly addressed his history of inappropriate sexual behaviour toward the victim? This issue relates to risk and is central to the position of the parties. The documents were admitted in the context of the father's admitted actions toward the victim.

[29] The report of May 5, 2006 was admitted not for the truth of the hearsay statements made by the complainant. What is in evidence is that police were called to investigate an indecent act of a person who was masturbating while standing at the window of a residence. The residence was that of the father. The suspect was the father. He denied the allegations. No further investigation ensued.

[30] The next report concerned an incident alleged to have occurred on August 27, 2008. It was admitted not for the truth of the hearsay statements made by the complainant. What is in evidence is that police were called to investigate an indecent act that a male person holding a magazine or newspaper was alleged to have masturbated while standing in front of a window. The address where this was said to have taken place was the father's home. The father denied the allegations. No further investigation ensued.

[31] On September 30, 2008 the Ontario Provincial Police investigated a report that a male person was seen standing in his front window with little or no clothing. It was admitted not for the truth of the hearsay statements made by the complainant. The home in question was the residence of the father. The police investigated this complaint and did not conclude a criminal offense took place.

[32] The last incident relied upon by the Society was an investigation by the Ontario Provincial Police on March 19, 2005 of a person videotaping young females and children in the pool area of a motel. The father was a guest of the motel. He denied videotaping as alleged. No charges resulted from the investigation.

(iv) Planning for the Birth of the Child

[33] On July 30, 2015 three Society workers, including Jennifer Saunders, the Family Services worker currently responsible for the management of this case, met with the mother and father. The workers were aware that the mother was pregnant. The purpose of the meeting was to discuss the counselling or other steps the father had taken regarding past inappropriate sexual actions.

[34] The father told the workers about the counselling he had done.

[35] When asked by the Society to participate in further phallometric testing he refused. He did agree to provide reports from his counsellors.

[36] The Society wanted to send the reports it received from the father to Dr. Dickie for his review and reconsideration of the opinions contained in the Dickie Report. The father refused to consent to this.

[37] As the parents would not consent to further assessments updating the ones relied upon in the case concerning the two older children; the worker told the parents that it was the Society's intention to apprehend the child once born.

[38] On September 6, 2015 the parents delivered a letter to the nursing staff at Windsor Regional Hospital in which they advised that they would bring civil proceedings and disciplinary action if they contacted the Society regarding the birth of the child. That day the child was born and hospital staff did let the Society know this occurred.

[39] The child was placed in the care of the paternal grandmother and uncle on September 8, 2016. As stated earlier, the child has been in their care since that date.

[40] The Society then brought this application. At the first return of the temporary care and custody hearing on September 10, 2015 a consent without prejudice order was made by Justice Phillips placing the child with the paternal grandmother. The parents were granted access supervised by the paternal grandmother or uncle.

[41] Following argument of the temporary care and custody hearing, Justice Ross made an Order dated February 17, 2016 confirming the placement that had been made on consent. An appeal from that Order was dismissed by Justice Pomerance on September 2, 2016.

(v) Participation in Counselling

[42] As part of the probation order imposed by Justice Demarco, the father was to be assessed by Paul Adams of the Windsor Sex Offender Treatment Program. If found suitable, he was to attend a sex offender group.

[43] Between June 2006 and October 2007 the father attended approximately two or three sessions of the Sex Offender Treatment Program with Mr. Adams. In those sessions he attended, the father was uncooperative, disruptive and reluctant to talk in group therapy. He showed little empathy to his victim and according to Mr. Adams was "entrenched in a 'victim' stance." He wore dark eyeglasses and a baseball cap as if hiding from the group. As a result, his involvement with the group was terminated.

[44] Sometime in 2007, the father registered at Homewood Health Centre ("Homewood") and was put on a waiting list. On May 12, 2010 he entered the in-house/live-in Program for Traumatic Stress Recovery at Homewood. The purpose of the father attending the Homewood program was to receive treatment for his "personal trauma and post-traumatic stress." According to the father this program helped him "take full responsibility for [his] previous criminal actions and helped [him] develop socially acceptable coping mechanisms for stress… It also prepared [him] to be receptive to further treatment."

[45] Dr. Stuart Ross was the primary care-giver at Homewood when the father attended. In his letter of May 28, 2012 which was admitted into evidence on consent, he described Homewood as a facility that provided highly specialized psychiatric services. Dr. Ross is a psychologist. He was the program psychologist for the Program for Traumatic Stress Recovery attended by the father.

[46] While in this program the father acknowledged that he had been the victim of abuse and he also admitted being a perpetrator. Dr. Ross observed that this acknowledgment and admission was accompanied by considerable anxiety, regret and remorse.

[47] In March 2011, the father wanted to attend Mr. Adams program. He wrote Mr. Adams a letter dated March 31, 2011 in which he explained why he resisted Mr. Adams' help in 2006 and 2007: he had been a victim of childhood sexual abuse and was not then ready or able to speak about it. The father continued on in his letter to say he had attended the Homewood program and there accepted counselling both for what he did to the victim and what had been done to him. He asked Mr. Adams to allow him to re-attend for counselling with him at The Sex Offenders Treatment Centre.

[48] After meeting with the father on April 8, 2011, Mr. Adams decided to give him another chance and agreed to allow him into the program.

[49] The father started the program on April 11, 2011 and continued until March 16, 2015. In all, he attended at 108 sessions. Included in these attendances was relapse prevention work.

[50] This involved the father working through a workbook called "Who am I and why am I in treatment?" According to Mr. Adams, "[t]he workbook is a standard text for persons who have committed sex offences and is used widely in the USA and Canada in treatment programs and facilities for understanding offence cycle and in preparation of a relapse program." The workbook is designed for sexual offenders and introduces them to treatment and assessment. The workbook helps them understand why they sexually offend, why they deny it and what to expect from treatment.

[51] The father followed up with Mr. Adams "in completing all homework assignments demanded by the workbook including divulgence of personal information related to all areas of his life with a particular focus on sexual history." He completed the workbook within the required 11 sessions and also completed a relapse prevention plan that he presented in the group for feedback and critique.

[52] Mr. Adams discharged the father in 2015. He was of the view that the father no longer required the program's services and that he had completed all the important aspects of the program.

[53] In anticipation of this hearing the father requested Dr. Julian Gojer, a psychiatrist in forensic practice to prepare a psychiatric evaluation addressing what risk the father posed to the child.

[54] Dr. Gojer prepared a report dated July 7, 2017 concerning the father. The parties agreed that the report, Dr. Gojer's curriculum vitae and Form 20.1 Acknowledgement of Expert's Duty would be filed in this proceeding. The parties further agreed that these documents would constitute his direct evidence and that he would not be subject to cross-examination. Instead these would be the subject of submissions regarding the weight to be given to the opinion expressed and the Court's overriding gatekeeping responsibility.

[55] On the issue of risk Dr. Gojer reported that he sees the father as a low risk to re-offend.

[56] The mother obtained a report from Shawnette Thompson, a forensic social worker. Her two reports, Curriculum Vitae and Acknowledgement of Expert Duty form were filed in evidence on consent. She was not required by the Society to be produced for cross-examination. Ms. Thompson reported that in her opinion the mother "has a strong sense of what it means to be protective."

B. Legal Considerations

[57] With the coming into force of the CYFSA the basis upon which the Society seeks a finding that the child is in need of protection is cl. 74(2)(d). This clause refers to cl. 74(2)(c). These two clauses are formulated as follows:

74(2) A child is in need of protection where,

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

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

[58] The only difference between CYFSA cls. 74(2)(c) and (d) and CFSA cls. 37(2)(c) and (d) is that in the CFSA the risk arises because of a child being sexually molested. In the CYFSA the risk arises because of the child being sexually abused.

[59] I interpret that the change in legislative language does not reflect a change in what constitutes risk under this clause. The change from "sexually molested" to "sexually abused" simply identifies current or modern language usage. Both terms refer to improper sexual behaviour that occurs whether through touching or non-touching.

[60] The risk contemplated involves a chance or a possibility that is real and not speculative: Catholic Children's Aid Society of Toronto v. N.A., 2011 ONCJ 671 at para 77 where reference is made to Children's Aid Society of Ottawa-Carleton v. T. and T., [2000] O.J. No. 2273 (Ont. Fam. Ct.).

C. Analysis

[61] In determining whether the child is in need of protection under cl. 74(2)(d), I consider the following factors which support a finding of risk:

(1) The father engaged in sexual abuse of the nine year old victim as described in these reasons;

(2) He was found to be in possession of child pornography;

(3) The father admitted to indecent exposure of himself to a UPS driver;

(4) The father maintained for many years that his conviction related to the UPS driver was a set up or vendetta carried out by the O.P.P. It was only in the witness box while being cross-examined in the hearing did he acknowledge he had in fact exposed himself to the driver;

(5) The father was investigated for inappropriate sexual behaviour on three occasions arising out of complaints that concerned a male person at his residence. I do not believe the father's denials related to these investigations. There were three of them in the same relative time period. It was at a time that the father states he had not dealt with his own trauma having been sexually abused;

(6) An important aspect of the father's described recovery was being honest and forthcoming about his actions and their effect on others. Denying his responsibility for the UPS driver incident for so long detracts from the extent of the recovery the father says he has achieved. Dr. Ross from Homewood was surprised and disappointed by the father's admission. It was not consistent with his understanding of the father's willingness to address his past behaviour;

(7) There are conflicting expert reports that address the father's risk of engaging in sexual abuse in the future. However, even Dr. Gojer, the expert engaged by the father stated that he was a "low risk, and it is more likely than not that he will not re-offend.";

(8) The manner in which the father gave some of his evidence raised concern that his rehabilitation and ability to manage his behaviour was not as secure as he wanted the Court to accept. I accept the evidence of Mr. Adams, that in assessing the father's recovery it is important that he accept responsibility for his actions and demonstrate empathy for his victims. I agree with the submission of the Society that in certain instances the father's evidence lacked candor. This included:

i) Longstanding refusal to acknowledge responsibility for the UPS incident even to those with whom he was engaged in counselling;

ii) He tried to excuse his behaviour toward the victim because he took LSD, alcohol abuse, his father's death, his sister's disability and his own sexual abuse. I do not accept that alcohol had anything to do with his actions toward the victim. In his history given to Dr. Dickie he denied that the use of alcohol was involved in any of his charges. Also, in the sentencing before Justice Demarco, the Court, when dealing with contested probation conditions held, "I see no reason to be concerned that consumption of alcohol is a particular problem in your case…";

iii) On the evidence, I find that the excuses offered in relation to his sister and father are so remote as to be unbelievable as a basis for his actions that day; and

iv) His use of LSD was not mentioned in Justice Demarco's decision nor did he further reveal this to his probation officer.

(9) The father gave evidence that he had lied under oath in the past to protect himself;

(10) The father has criminal convictions for breach of probation and breach of recognizance; and

(11) The father asks the Court to consider that the victim of the father's sexual assault was female and not his daughter. He argues this is important to consider because there is no evidence that his sexual preference is other than heterosexual nor is there evidence he victimized his own children or other relatives. I find that this argument casts the meaning of sexual abuse or sexual exploitation too narrowly. It does not take into account the father's exhibitionist behaviour nor does it take into account the content of the pornographic material police found downloaded in his computer. Young males were the subject of these materials.

[62] I also have considered factors that mitigate against a finding of risk including:

(1) the offences and behaviour referred to are dated;

(2) he has not been convicted of any further offences;

(3) the father has engaged in much counselling to address his own victimization from sexual abuse and his sexually abusive behaviour; and

(4) the mother has engaged in counselling that would help her be alert to any signs of relapse by the father.

[63] When considering all the factors, those that support the finding sought and those that do not, I find that on balance the risk of harm contemplated by cl. 74(2)(d) exists. The risk is real and not speculative even after the passage of time.

What is the Appropriate Disposition?

A. Legal Considerations

[64] The CFSA mandated the Court follow a statutory pathway when determining the appropriate disposition in a child protection case: L. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] O.J. No. 119 (OCJ GD) and Children's Aid Society of Toronto v. T.L., 2010 ONSC 1376, [2010] O.J. No. 942 (SCJ).

[65] The CYFSA requires the Court to do the same. If the child is found to be in need of protection, s.101(1) requires the Court to determine if intervention through a court order is required: s.101(8).

[66] For the reasons that follow, I am satisfied that intervention through a court order is necessary to protect the child in the future.

[67] The next step is to consider which of the orders under ss. 101(1), ¶s 1, 2, 3, 4 or ss. 102 should be made in the best interests of the child. The options under subsection 101(1) and 102(1) are:

101(1) where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

(1) That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

(2) That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

(3) That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

(4) That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[68] As the disposition order must be made in the child's best interest, it is necessary for the Court to consider the circumstances enumerated in ss. 74(3) which is now formulated as follows:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) Consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) In the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) Consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) 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,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) 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,

(ix) the effects on the child of delay in the disposition of the case,

(x) 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, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[69] The Court must consider what efforts the Society or others made to assist the child before intervention occurred: ss. 101(2). In this case, the child was brought to a place of safety following his birth. It did so having regard to the past parenting evidence it had concerning the parties' two older children and the lack of information that anything had changed.

[70] Before making an order removing a child from a parent, the Court must be satisfied that less disruptive alternatives would be inadequate to protect the child: ss. 101(3).

[71] If a child is to be removed from a parent's care, the Court is to consider whether there are family or community placements before making an interim or extended society care order: 101(4).

B. Plans of Care

The Society's Plan

[72] The Society's Plan of Care is to keep the child in the care of the paternal grandmother and uncle, subject to Society supervision for a period of 12 months. In its written submissions, it asks that the terms of supervision and access be as set out in the Order of Bondy J., dated April 11, 2013, made in respect of the child's older siblings (exhibit 2). This Order grants the paternal grandmother and uncle custody of these older siblings subject to them consulting with the mother and father on enumerated items related to their upbringing. They were also obliged to advise the Society of any breach of the access terms and any requests or motion to change the terms of custody and access.

[73] In its Plan of Care, dated November 1, 2017, (exhibit 14), it proposed terms that would allow for scheduled and unscheduled access to the paternal grandmother and uncle's home, to keep the Society advised of their address and telephone numbers, sign releases and ensure access is supervised.

[74] Justice Bondy's April 11, 2013 Order also defined the access the mother and father were to have with those children as follows:

(5) The mother and father shall have access to the children as follows:

a. All access to the children B. and G. by Ju. C. or Jo. C. shall be supervised by D. C. or A. C., except during the access that Ju. C., B. and G. have with K. W., which is supervised by his grandparents, A. and I. W.;

b. Access shall be for three (3) daytime and/or early evening visits each week, scheduled with at least twenty four (24) hours' notice;

c. Jo. C. and Ju. C. shall have the ability to attend for family meals;

d. Jo. C. and Ju. C. shall have the ability to attend the children's community and sporting events as observers, such as skating, soccer, etc.;

e. Jo. C. and Ju. C. shall have the ability to attend medical or educational appointments;

f. Access shall not occur on an overnight basis.

(6) These visits and arrangements are based on Jo. C. and Ju. C. remaining married and living together. If that were to change, access visits will have to be reviewed.

(7) Jo. C. and Ju. C. may make inquiries and be given information by the children's teacher, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children and if necessary D. C. and A. C. shall provide a consent for this information to be provided.

[75] Based on the Society's written submissions, I understand it to want the terms of supervision pertaining to the paternal grandmother and uncle and access by the parents to be as set out in the Plan of Care and in the Order of Bondy, J.

The Parents' Plan

[76] In their respective written final submissions, the parents did not provide any proposed Plan of Care. It is their position that the only order the Court should make is to find that the child is not in need of protection under clause 74(2)(d).

[77] The father's Answer asked, in the alternative to a dismissal, for the return of the child to the mother's and his care, placement with them subject to a six month supervision order. No proposed terms of supervision were pleaded.

[78] The mother's Answer made the same requests; dismissal of the application or placement with the parents under terms of supervision which were not specified.

[79] Both parents want the child to live with them in their home without Society involvement. They will ensure the child continues to have contact with the paternal grandmother and uncle and siblings. While the father is at work the child will be cared for by the mother.

[80] The father has sufficient income to support the mother and child.

[81] Their home is a one-level bungalow with two bedrooms, one of which would be for the child.

C. The Child

[82] The child is now two years and nine months old. He is described as a happy and healthy child who is meeting his developmental milestones. He has resided in the care of his paternal grandmother and uncle since birth. Also residing in that home are the child's two older siblings now eight and seven respectively.

[83] The paternal grandmother and uncle are providing the child with appropriate care.

[84] The parents exercise supervised access with the child. The child cries "dada" and "mama" when the parents leave access.

[85] The father describes his relationship with the three children as close and loving.

[86] The mother's access includes caring for the child at the paternal grandmother's home for 12 to 16 hours a day.

D. Analysis

[87] In determining the appropriate disposition under the Act that is in the child's best interest, I have considered all of the evidence and in particular the following.

[88] The risk of harm to the child as found in these reasons is low. The father's past actions toward others occurred some time ago. He has not had any criminal convictions since April 10, 2008. His last conviction for a sexual offence was on March 27, 2006. But for the reasons set out above, risk remains.

[89] Since that time he has engaged in services meant to address his abhorrent sexual behaviour and his own sexual victimization. He attended at Homewood, and with Paul Adams. There is no evidence of inappropriate sexual behaviour by him in over 10 years.

[90] I accept the mother's evidence that she understands what it means to be a protective parent. She participated in counselling that included self-esteem and coping with stress. The mother understands that, given the father's history, she must monitor her children's behaviours and emotions, notice visible changes in them and maintain a trusting relationship that allows for communication.

[91] I also accept her evidence that through counselling the mother is aware of the warning signs that the father may be relapsing. If this were to occur, she testified, and I accept, she would call the appropriate authorities.

[92] The father has the support of his mother and brother (the paternal grandmother and uncle).

[93] The father and the mother have maintained their relationship despite the very serious challenges they have had to address.

[94] The father has been able to provide financially for the mother and himself through self-employment.

[95] The parents have been dutiful in attending for access such that they have a positive relationship with the child as well as their older two children. The evidence of the paternal grandmother and uncle was admitted without the Society requiring either of them attend for cross-examination. It is their evidence, which I accept, that the children are "very close, bonded and comfortable with their parents." This has developed in circumstances where the parents attend the paternal grandmother and uncle's home for access and they engage in "lots of activities such as play, finish their homework, prepare meals, etc…", and eat meals together.

[96] I conclude that the father has engaged in prosocial behaviour for a number of years.

[97] This prosocial behaviour over many years, when considered with (1) family support; (2) the mother's recognition of the need for vigilance and to protect and willingness to do so; and (3) the obviously close relationship the child has with the parents, reduces but does not eliminate the risk as found.

[98] With terms of Society supervision I find that the least intrusive disposition consistent with the child's best interests is to place him in the care of the parents.

[99] These terms of supervision shall ensure that the child maintains his relationship with his siblings and paternal grandmother and uncle.

[100] The parents seek the return of the child to them without any society involvement. For the reasons set out such a plan would not be in the child's best interests. It ignores the father's past actions which reverberate to this day and the risk he still poses.

[101] The Society's request does not recognize the gains both the mother and father have made over many years.

CYFSA Best Interest Considerations

[102] The child is too young to express views and wishes. However, even at his age, the child has demonstrated his attachment to the parents.

[103] The parents, and especially the mother, have demonstrated their ability to meet this child's physical, mental and emotional needs within the supervised conditions at the home of the paternal grandmother and uncle. They have the parental skills, home and financial resources to do so with continued Society involvement.

[104] In the care of his parents, the child will be able to continue his development of a positive relationship with his parents as a secure member of their family.

[105] The parents are willing to ensure that the child's relationship with his extended family is maintained. I accept the mother's evidence that she will ensure this happens.

[106] The parties, paternal grandmother and uncle all gave evidence that their relationships are positive. In this environment which has existed for some time, I find that the child will have the opportunity to maintain his relationship and emotional ties with the paternal grandmother and uncle.

[107] The mother spends the majority of her time at the paternal grandmother's home caring for the child. Transitioning the child to the care of the parents with the steps to be taken to maintain his connection with the paternal grandmother and uncle will minimize any disruption that might occur from the child moving to his parent's home.

[108] The degree of risk as set out earlier in these reasons is also considered in a best interest determination.

[109] I have found the risk under cl. 74(2)(d) to be real, but low. Terms of supervision that address this risk will be sufficient to protect the child. The father should not be left in a sole caregiving role when with the child; he will always need to be in the company of the mother, paternal grandmother, uncle or other third parties approved of by the Society when in the presence of the child. Also, by allowing the Society to direct the father in particular, to needed services the risk he poses can be protected against.

[110] It is expected that the father will maintain and the mother will be vigilant in monitoring his continued prosocial behaviour.

[111] In reaching this decision I have considered the father's actions over a lengthy period of time to be a more important indication of his likelihood to re-offend than his expressions of regret and contrition he gave in evidence. I attach little weight to his statements of regret and contrition given in the witness box. They seemed rehearsed and were used to deflect difficult questioning he was asked.

The Expert Reports

[112] The parties asked the Court to take into account the expert reports that were tendered in evidence. The two reports relied upon by the Society are those prepared by Dr. Dickie and Dr. McGrory. The two reports relied upon by the Respondents are those prepared by Dr. Gojer and Ms. Shawnette Thompson. The parties criticize and challenge the reliability of the other's reports.

[113] No expert was cross-examined. Counsel argued that the strength or weakness of each report could be considered and weighed just by reading them in light of the other evidence presented.

[114] The Society relied upon Dr. Dickie's report of October 10, 2009. In this report, Dr. Dickie undertook a phallometric evaluation of the father, the results of which he stated "should be viewed with some caution." He also cautioned that "[t]he use of phallometric testing in risk assessments is controversial and its use questionable."

[115] In this hearing I attach little weight to the conclusions reached by Dr. Dickie because:

(1) The controversial and questionable reliability of phallometric testing;

(2) The passage of time during which the father has not been known to reoffend and his improved circumstances;

(3) Under the heading "Opinions and Recommendations," the report refers at para 2, to "our" opinion. At paragraph 4, Dr. Dickie refers to the Sexual Behaviours Clinic team. Other than J. Busby it is not evident who else was involved in reaching the opinions made and what were their qualifications and involvement in the assessment process.

In Children's Aid Society of London and Middlesex v. B. (C.D.), 2013 ONSC 2858, Justice Harper set out the risks in considering the opinion of third parties not specifically referred to in a Parenting Capacity Assessment Order as follows:

26 In this case, we are dealing with a s. 54 Child and Family Services Act assessment. That section details the process of ordering an assessment and who can be an assessor. It is most important that the proper vetting of a proposed expert is done at the time the assessor is being appointed and it is specifically provided for in the statute where it allows for the parties to put forward an assessor who has certain skills. But it still provides for the judge to make the final determination in his gatekeeping role. The judge does not have to agree with the proposed assessor. The judge may order someone who is completely different but has the skills required by the statute and the law of evidence. In my view, that is the vetting process that is adopted in s. 54 and is the start of the vetting process for the proper exercise of the judicial gatekeeping role. The court must be satisfied that the person or persons appointed are sufficiently qualified in order that they might express opinions in a report that is intended to be filed as evidence. Another unique feature that causes a complication of applying the proper scrutiny of experts at an early stage is that s. 54 provides that this report is evidence in a proceeding. If the assessors are not pre-authorized by the judge, that runs the risk of having reports that are filed as evidence that are replete with evidence that is not admissible or otherwise would be not admissible as a result of expressions of opinions by persons who are not able to express those opinions. (emphasis added)

(4) The opinions did not take into account the father's own victimization and counselling in which he has engaged.

[116] I do accept Dr. Dickie's warning about the reliability of phallometric testing.

[117] The Society also relied upon Dr. McGrory's Parenting Capacity Assessment of January 11, 2010. In this report, Dr. McGrory was asked to determine whether the mother could "act in a protective manner for her children with respect to" the father. The opinion provided cast doubt on the mother's ability to be protective in the face of the risk posed by the father "based upon Dr. Dickey's report." He recommended that the mother sever fully from contact with the father.

[118] The risk posed by the father from which the mother would need to protect the child, was based in part upon Dr. Dickie's report. The Dickie Report is being given little weight for the reasons set out above. As such, the weight that can be placed on Dr. McGrory's opinion is much diminished.

[119] As well, Dr. McGrory's report is dated. In the intervening years the mother has demonstrated an ability to care for her children and a significant willingness to do so.

[120] In 2017, the mother engaged in counselling with Ms. Thompson to address the concerns identified by Dr. McGrory. Ms. Thompson addressed with the mother "coping with stress, self-esteem, family and what it means to be protective." The therapist concluded that the mother is a protective ally. This report and the circumstances considered are recent in time.

[121] The Society argues that the mother should not be believed because:

(1) the mother acknowledged lying under oath in 2009 during her oral questioning;

(2) she admitted lying to police about threats made by the husband;

(3) married the father one month after saying she would not reconcile with him; and

(4) she obtained expert reports without involving the Society in the process; therefore

(5) On this basis the information given to Ms. Thompson and this Court by the mother the reliability of her evidence and the report are undermined.

[122] I agree with the Society that some of the mother's past actions and statements must be considered in assessing the reliability of her evidence.

[123] In assessing the mother's likelihood of being a protective ally I put more weight on her commitment to her children, as demonstrated by her devoted care of them in the presence of the father and the paternal grandmother and uncle. The Society, paternal grandmother or uncle have not identified one instance of the mother not being protective since the child was placed in the care of the paternal grandmother and uncle.

[124] For reasons that were not explained the Society chose not to seek through Court Order updated parenting capacity assessments nor require the parents' experts to submit to cross-examination. Rather it chose to rely in part on dated reports to make its case.

[125] The Society also argues that the Gojer and Thompson reports should have little if any weight because it was not afforded the opportunity to have input into the assessment process. These reports were not custody and access assessment which must not be conducted unilaterally. The Society did not provide any case law or professional regulations that required Dr. Gojer or Ms. Thompson to consult the Society.

[126] However, I accept the Society's argument to the extent the reliability of the Gojer report is limited to the assessment of risk that the father may reoffend. I put no weight on Dr. Gojer's belief that the father "can be a good father." The extent of Dr. Gojer's opinion is limited to his expertise, that is, to prepare a "psychiatric evaluation addressing what risk he poses to the child."

[127] The Gojer report is based on documents provided by the father as well as interviews. The Society did not challenge Dr. Gojer's qualifications to provide such an opinion related to risk the father poses to the child.

[128] It argues that the report's opinion should be disregarded because:

1. It is based on information provided by the father, a person who is not reliable;

2. Dr. Gojer did not review the father's guilty plea before Justice Phillips nor the police reports detailing complaints made against him;

3. Dr. Gojer did not review the Society's factum in the temporary care and custody appeal proceeding and considered information in letters from Paul Adams that were not in evidence in this case; and

4. Dr. Gojer did not attempt to corroborate the father's claim that he had been a victim of sexual abuse.

[129] The Society asks the Court to be mindful of the "potential prejudice by an expert's reliance on unproven material not subject to cross-examination." This is an important instruction to follow in weighing the expert reports. I did so in reviewing the Gojer and Thompson reports. In particular I accept that the father was a victim of child sexual abuse and that it took him a long time to be able to address this in a clinical manner. Gojer and Thompson had substantially all of the relevant information from the parents. There is no evidence that the Society tried to adduce through cross-examination or otherwise, explaining what if any change would there be in the experts' respective opinions if they had the referred to additional information.

[130] I did not consider the report of Dr. Kalia contained in the Gojer Report. It did not meet the necessary requirements of a litigation expert report before it could be admitted.

[131] The Society has overstated the opinion expressed by Dr. Gojer. He did not, as stated by the Society counsel, find that the father "no longer presents a risk of harm to children." Rather, Dr. Gojer, as stated above, defines the risk as low and suggested that the Society remain involved monitoring the family and adopting a flexible attitude toward helping the mother in her "marriage and ability to parent her son effectively." I find that Dr. Gojer's opinion, based on his investigations, is substantially consistent with the findings made by this Court based on the evidence presented. I find the same to be the case for the opinion of Ms. Thompson.

[132] In sum, I find that the narrow conclusions of Dr. Gojer related to the father (risk) and Ms. Thompson related to the mother (protective) are consistent with the evidence found by this Court.

[133] In assessing the opinion evidence which the parties agreed could be admitted, I remained mindful of the direction of the Court of Appeal in Bruff-Murphy et al. v. Gunawardena, 2017 ONCA 502 "…that a trial judge has the ongoing residual discretion to exclude expert evidence even after admitting it, if later in the trial prejudice emerges that was not apparent at the time of admission" (para 65). In this case I have not excluded the expert opinion; rather weight given was based on reliability factors referred to in these reasons.

Paramount and Other Purposes of the CYFSA

[134] Finally, in assessing the appropriate disposition, I have considered the primary and relevant additional purposes as set out in s. 1 of the Act.

Conclusion

Best Interests

[135] I am satisfied that placing the child in the care of the parents subject to Society supervision is in his best interests as contemplated by ss. 1(1), 1(2), 74(3) and s. 101 of the Act.

[136] The father has demonstrated prosocial behaviour over a number of years which mitigates his risk to the child. The mother has provided almost daily care of the child and demonstrated an understanding and a willingness to be protective of him.

Order

[137] For these reasons the following findings and order shall issue:

1. The statutory findings required under ss. 90(2) of the Act are as follows:

a. The child's name and age: R. Jo. C., age 2 years, born … 2015;

b. The child is not a First Nations, Inuk or Métis child; and

c. The child was brought to a place of safety before the hearing from within the County of Essex.

2. The child is found to be in need of protection under cl. 74(2)(d) of the Act.

3. The child shall be placed in the care and custody of the mother and father, subject to the supervision of the Society for a period of 12 months upon the following terms and conditions:

a. the child shall reside in Essex County during the term of the order;

b. the mother and father shall keep the Society advised of their respective telephone numbers, email addresses and residential addresses and will advise of changes within three days;

c. the mother and the father shall sign all releases as may be reasonably requested by the Society to allow it to carry out its obligations under this order;

d. the mother and the father shall allow the Society scheduled and unscheduled access to their home(s) and the child.

e. the father shall not be in a sole caregiving role to the child or alone with him at any time;

f. the father shall not engage in any sexual behaviour toward or in the presence of the child;

g. the mother and father will engage in such counselling as may be recommended jointly by the Society and a mental health care provider and follow recommendations made by them. For this purpose the Society may direct the mother or father or both to attend with a mental health care provider for an assessment of the need for ongoing treatment, counselling or therapy;

h. the mother shall report any sexually inappropriate or relapse type behaviour by the father forthwith to the Society;

i. the mother shall not permit the father to be in a sole caregiving role or allow him to be alone with the child at any time;

j. the mother and father shall ensure the child has regular and frequent in person contact with the paternal grandmother and uncle and his siblings; and

k. the mother and father shall not allow third parties other than the paternal grandmother and uncle to monitor the father's care of the child unless the prior approval in writing from the Society is provided.

[138] The Court wishes to recognize the helpful and professional effort of Ms. Manalang who took carriage of the case for the father on the eve of the hearing.

Released: July 3, 2018

Original Signed and Released

Tobin, J.