Court File and Parties

Date: October 30, 2020

Court File Number: 141/2018

Ontario Court of Justice at Orangeville

Between:

D.R. Applicant

and

K.M. Respondent

Before: Justice B. E. Pugsley

Heard: October 28th, 2020

Released: October 30th, 2020

Appearances

• Applicant assisted by Duty Counsel Gary Wright
• Respondent assisted by counsel on limited retainer, Ms. Yi Fang Zhuang

Endorsement

Background and Procedural History

[1] The parties have two little girls: SGM (DOB: …) and SMM (DOB: …). The Applicant (Mother) commenced an Application in the fall of 2018 seeking custody and access by the Respondent in her discretion. At the same time, she alleged physical abuse of the children by the Respondent's family and by the Respondent himself and sought an order without notice to the Respondent (Father). She alleged that the Dufferin CAS told her that any access by the Respondent should be supervised. This would not be the last time that the Applicant leaned upon purported advice by the local child protection agency in keeping the children from their father.

[2] On November 8th, 2018, Justice R.H.K. Schwarzl granted an order without notice granting D.R. temporary without prejudice custody and giving her discretion over what access K.M. could have with the children.

[3] On November 21st, 2018, the review of Justice Schwarzl's ex parte order and the hearing of the Respondent's cross-motion were heard together. On November 23rd, 2018, my endorsement was released to the parties: see D.R. v. K.M., 2018 ONCJ 840. Inter alia, the endorsement noted that the only access that the Applicant would agree to was access in her personal presence. I noted that the Dufferin CAS by law was required to step in in cases of child protection concerns and had not then done so. I noted that it was clear that the Applicant had pumped her children for information about their father and his family and that she had a friend document their statements. At the time the girls were 4 and 2 years old respectively. I implied that the agency was inadvertently allowing themselves to be converted into an ally by the Applicant in her domestic proceeding. Some of my observations have their parallel in the current matter.

[4] My order regularized access between the girls and their father and granted costs to the Respondent.

[5] On April 10th, 2019, the parties entered into final minutes of settlement for joint custody and extensive parenting time with the Respondent.

[6] Around about September of 2019 the Applicant decided that there would be no access under the April 2019 consent order. The Respondent has basically not exercised his residential rights with the children for over a year now.

The Child Protection Proceeding

[7] On October 10th, 2019, the two children, and the Applicant's older child, "I.", were taken to a place of safety without a warrant by a social worker employed by the Children's Aid Society of the County of Dufferin ("Dufferin CAS"). The apprehension of the children followed an investigation by the Dufferin CAS and the police in Orangeville and Peel Region, related to extensive allegations that the children had been sexually abused by their father and, later, members of his family.

[8] The allegations set out in the Child, Youth and Family Services Act application (which I case managed) did not however relate to the Respondent's conduct but rather to that of the Applicant (Mother) with regard to her pressing of the alleged sexual abuse with various official and medical entities. The Dufferin CAS application suggested that the actions of the Applicant were such that they needed to intervene. Neither the Dufferin CAS nor the police found that the allegations were supported by their investigations.

[9] On December 11th, 2019, the Dufferin CAS withdrew their application on consent and without costs.

The Current Motion to Change

[10] On February 27th, 2020, some two months later, the Applicant (Mother) brought on a Motion to Change the consent final order made in April, 2019. Once again she simultaneously brought an ex parte motion in Chambers seeking sole custody, no access to the Respondent, and a restraining order to protect the Applicant and the children.

[11] The supporting Affidavit dated February 26th, 2020, alleged that the girls had been physically and sexually abused by the Respondent (father) and that the allegations had been reported to the Dufferin CAS as early as September 2019. The Applicant related that the agency had become involved but did not note that the proximate cause for the apprehension of the children was the Dufferin CAS concerns with her behavior and mental health. The Applicant supported her position for no access by 2 letters from the Dufferin CAS to K.M. (December 23rd, 2019 and February 5th, 2020) stating that they do not support access by him and that while the children are obtaining services they would not tell him what services. They suggested that he contact the Applicant. Further, the Applicant filed a report of a pediatric psychiatrist concerning an examination of SGM. That examination took place on December 17th, 2019, six days after the consent withdrawal of the protection application by the Dufferin CAS.

[12] Again, as was the case in the first application in 2018, the letters from the CAS are used by the Applicant in an attempt to ally the agency to the Applicant without the agency actually having to take any child protection steps. The Applicant also swore that the Respondent had bought a gun and that his rejection of the CAS instructions by continuing to press for the access provided for in the final court order placed her and the children in danger.

[13] On February 28th, 2020, Justice L. Thibideau sitting at Orangeville, made a time limited ex parte order. His endorsement references "an abundance of caution" as the basis for the order. He noted in his endorsement that in spite of the Applicant's statements to the doctor during a psychiatric consultation referenced in The Applicant's affidavit SGM still wanted to see her father. His Honour's order gave sole custody to the Applicant, ended the Respondent's access, and required that the matter be brought back as a motion within 30 days, with his order expiring at the end of that time. Justice Thibideau made no restraining order.

[14] Justice Thibideau's order without notice came before the court for a motion review on March 11th, 2020. On consent the motion review was adjourned to be heard on April 15th, 2020.

[15] The next week the courts commenced a lengthy period of repeated involuntary adjournments required by the COVID-19 pandemic emergency. As a result, the ex parte order remained in place and unchallenged far beyond the time frame anticipated by Justice Thibideau, this court, or the parties.

[16] During some of the subsequent COVID related adjournments neither party appeared before the court in writing or remotely. The matter was adjourned pursuant to the directive of the Chief Justice of the Ontario Court of Justice in multi-week segments. Adjournment dates were selected by the court without input from the parties (who by then were both self-representing).

[17] On September 9th, 2020, the Respondent, after silence for months, sought extensive relief by motion without notice. At the same time the courts were opening up for the remote hearing of some family court matters, at first by teleconference and lately using the Zoom video conferencing app. His order was not granted but his material was available to be used at the long-delayed review of Justice Thibideau's order made without notice. The motion review was scheduled for October 28th, 2020.

[18] On October 19th, 2020, the Applicant brought on yet another motion for an order without notice. That motion was dismissed with her material available for use at the motion review. A copy of her affidavit was sent by the court office to the Dufferin CAS for their information.

[19] Both parties filed further affidavit material before the motion review.

Procedural Issues with Affidavit Material

[20] The Respondent's affidavit contains photocopies of affidavit material filed in the Dufferin CAS child protection proceeding. Such material identifies the parties in a public forum – since the continuing record in this application is a public document. That material should not have been filed without editing and will be removed form the continuing record by the court office and sealed in an appropriate envelope.

[21] As already indicated because of the nature of the Orangeville family court I was the case management judge in both the CAS and the domestic matters.

[22] The motion review took place on October 28th, 2020, as scheduled. All material filed by the parties was before the court. As is common where parties create material without legal guidance, much of the material is profoundly improper and should not have been filed with the court. Unattributed statements and opinions of others are improper. What the party's opinion is about the other party, their actions, or what is "right" is improper. A party's personal views of the conduct of each other are improper. None of that material is helpful.

[23] The bare filing of medical documents of a highly personal and prejudicial nature, without any expert interpretation to assist the court is of limited value to the court.

[24] An affidavit in a court action is a statement of facts without argument. Argument is replete in the material of both parties.

[25] It is no answer that the parties are self-represented. Both once had counsel. They have decided that no legal counsel is now needed in this matter despite what they both regard as the vital nature of their action for the children's future welfare. They are held to the same standard as those parties with lawyers and depart from that standard at the risk that their case will not be well presented.

The Parties' Positions

[26] The Applicant, assisted by duty counsel, submitted that the children are profoundly unsafe seeing their father, that if I ordered access of any kind then in any event the Dufferin CAS would immediately start a child protection proceeding to stop access, and that if access was ordered over SGM's counselors' advice the counselors would end all counselling. Some of these institutional opinions are related through her. She relies on medical evidence, including from the Hospital for Sick Children, that sets out a diagnosis that SGM at the least had been abused by someone.

[27] For the first time since the 2018 application the Applicant advances evidence in her latest affidavits that the Respondent was abusive throughout their relationship and was physically abusive to SGM as early as age 2.

[28] The Respondent, assisted by counsel retained only for the motion, submits that he has never abused his children, that many of the incidents pointed to by the Applicant are alleged to have occurred after he stopped seeing the children, and that the Applicant has actively poisoned the children against him and his family, and that she has planted the notion of abuse in the children's minds. He seeks access immediately and asked that the OCL be appointed.

Analysis of the Allegations

Initial Investigation and CAS Response

[29] As noted above, in October 2019, the Dufferin CAS apprehended the girls after repeated allegations were made by the Applicant of pervasive sexual abuse by the Respondent. The police were engaged. That CYFSA proceeding soon ended. No criminal charges have been started.

[30] As already noted, parts of the Applicant's material parallels allegations from 2018, save and except with a sexual component to the alleged abuse now added.

[31] An examination of the material and exhibits filed by both sides again reveals the extent to which each party seeks to engage public authorities as allies.

[32] After the first motion review was argued in November 2018, and while my decision was under reserve, the Applicant had already engaged the Dufferin CAS and through them the Peel Regional Police in allegations of a sexual nature directed at the Respondent by SGM through the Applicant. Immediately after my endorsement was released to the parties on November 23rd, 2018 (the next day) the Applicant was in further contact with the CAS about her concerns with the access that I had ordered the day before, advancing fresh details about what the child had revealed about her father's conduct. The agency followed up and determined that there were no child protection concerns. The police advised that there was no basis to charge the Respondent. That Dufferin CAS investigation was closed on December 18th, 2018.

[33] As noted in April 2019, the parties agreed to comprehensive final minutes of settlement with joint custody and extensive access. The Applicant was represented by counsel at that time.

Pattern of Escalating Allegations

[34] As early as September 2019 however the Applicant was again reporting to a worker at the Dufferin CAS incidents she recalled that in retrospect, she believed were examples of the sexual abuse of both her children at the hands of the Respondent. From the detail of the emailed statement of September 30th, 2019 from the Applicant to the CAS worker (see exhibit E and following to the Respondent's affidavit dated August 12th, 2020) it appears that the Applicant has been observing and recording extensive acts and utterances made by the children and observed by her, including repeatedly physically checking their private areas for evidence of sexual abuse. By a second email sent 6 hours later, the Applicant reveals that the girls both spoke of their father video recording his sexual abuse of them. The Applicant has repeatedly engaged medical practitioners in repeated physical examinations of the children. The Peel Regional Police were again engaged to investigate the pervasive physical and sexual abuse of the girls by the Respondent as early as a few months after the parties signed their consent final minutes of settlement last year. The Orangeville Police Service was later engaged concerning for the first time alleged abuse of "I." by her step-father K.M.

[35] On September 16th, 2019, the children were interviewed (with their older step-sister and in the presence of the Applicant) and made no allegations of sexual abuse.

[36] The Dufferin CAS and the police appeared at that point to have become skeptical of the allegations that were being relayed by the Applicant from her children.

[37] On September 24th, 2019, the Applicant herself took her daughters (and their older step-sister) to the emergency department at the Hospital for Sick Children in Toronto and reported to the doctor there that her children had been the subject of a long history of alleged sexual abuse. She asked that they be seen by the SCAN unit there. The doctor called the Dufferin CAS.

[38] The Dufferin CAS agreed to engage in a further investigation jointly with the Peel Regional Police. Between the first visit to the Hospital for Sick Children and September 27th, 2019, the Applicant called the SCAN unity repeatedly with increasingly serious allegations about the Respondent's sexual abuse of the children and also suggested that there was sexual misconduct with his mother. The allegations expanded to sexual abuse of the children by members of the Respondent's family as well. SGM was reported by the Applicant to be sexually abusing her little sister, including inserting a knife handle into her sister's vagina.

[39] The Applicant submits that the CAS worker and the police were biased against her. She has made formal complaints about the investigating officers. She states that the Dufferin CAS has apologized to her.

[40] As late as her affidavit dated October 14th, 2020, the Applicant continued to expand the alleged acts of abuse. She provides apparently new and very detailed never before disclosed allegations of ongoing sexual abuse as told by her daughter to her. There are details about the Respondent's sex toys and his firearm.

Basis for CAS Apprehension

[41] The Dufferin CAS apprehension was not done because of evidence of the alleged sexual assaults by the Respondent. Rather, as noted above, the decision to apprehend the three children was related to the highly interventionist behavior of the Applicant related to the repeatedly unproven allegations of such abuse engaging embarrassing examinations of her children by the Applicant and by medical practitioners.

[42] After the girls were apprehended on October 11th, 2019 the CAS sought to place them outside of the care of both parents and instead in the care of the Applicant's mother.

[43] The agency's investigation in concert with two police services found no evidence of the sexual abuse the Applicant had alleged and rather, noted the Applicant's own serious mental health issues. The agency reported via affidavit in that proceeding that the Applicant appeared to frequently intervene when the social workers tried to interview the children about their father, that she coached them, and that the Applicant said that the only interview that would be successful in disclosing the abuse would be if she herself was allowed to interview her children. This is a direct repeat of the conduct I referenced in my endorsement of November 23rd, 2018. D.R. was reported to have been angry and abusive towards the social worker conducting the children's interview.

[44] The Applicant has a history of some mental health concerns including bi-polar disorder but in the opinion of her caregivers is managing her condition well on medication although somewhat hypomanic at the time when her initial allegations were being pressed with the authorities.

CAS Role and Withdrawal

[45] Within days after the withdrawal of the protection application the Applicant continued to engage the Dufferin CAS in blocking access by the Respondent – a role arguably outside their legislative mandate: there was an existing order for joint custody and extensive access; they had days before stated that there were no child protection concerns. A letter from the CAS may have the imprimatur of an official government direction to lay persons. Here they not only informed the Respondent (notably two days before Christmas) that he was not welcome to see his children, the letter refused to disclose (to a joint parent) what therapy his children were receiving. That no access position was repeated in February 2020 by the agency in a second letter to the Respondent.

[46] The agency appears to have forgotten my November 23rd, 2018 caution in this case that they be sensitive to private parties using them as a tool in a domestic family court matter. It is disconcerting to see an agency using their undoubted persuasive power to influence a Children's Law Reform Act proceeding without apparently intending any formal involvement.

[47] The Respondent was a party to the Dufferin CAS protection application. If his access pursuant to a court order had child protection concerns, then the agency need not have withdrawn the application.

[48] The Agency's evidence made it clear that they found the allegations of sexual abuse unfounded. Their letters should have explained the basis for their subsequent belief that his access should end.

[49] The Applicant ties much of her thesis that there should be no access at all to her belief that the sexual abuse by the Respondent, including a multitude of allegations not earlier placed before the Dufferin CAS, is "proven". These include allegations that were in fact found to be unproven by the Agency.

Medical Evidence Analysis

[50] SGM's pediatric psychiatrist has noted a decline in her emotional health that completely postdates the last time she had access with her father, and indeed post-dated the order stopping such access.

[51] Her reported behaviors include acts against her sister's private areas and inserting objects into her own private areas. The psychiatric examinations cited by the Applicant initially are generally based upon her relating what the children told her and not what the children relate to the practitioner. The physical examinations cited as supportive of sexual abuse noted some signs of external acts to the private areas of the children but do not state that the Respondent was the source of those acts. The HSC and emergency reports of physical examinations of the children as filed by the Applicant predate the decision by the Dufferin CAS to apprehend the children. Again, the reports suggest that the signs of genital abrasions are caused by some person, but do not identify the Respondent as that person.

[52] Notwithstanding the evidence that the allegations are not just repeated but are seemingly becoming more and more elaborate, on July 30th, 2020, the agency wrote both parties to advise that they were closing their file. For the first time the Dufferin CAS stated that the sexual abuse by the Respondent (including the very behavior that they had not verified) was now verified by "multiple [unnamed] service providers". None the less they stated that because the issue of access and custody was before [this] court there was no need for the Agency to continue to be engaged: "there is no further role for the Society".

[53] I find this conclusion surprising: either these events took place as the Applicant describes in which case the children have been sexually abused for years in many highly detailed acts of criminal abuse, including new allegations on a seemingly month by month basis, in which case surely the CAS needs to provide extensive engagement, or none of these events took place at all (as the Agency thought when they first apprehended the children), in which case the Agency has left the children in the care of someone who is actively causing the children harm by repeatedly engaging them in treatment, reinforcement, and examinations related to events that never took place.

[54] It is not good enough to leave the matter in the hands of the domestic family court to sort out on the simple basis that the Respondent should have no access, that the matter can be dealt with by two self-represented persons with no resources, and that's the end of the Dufferin CAS engagement.

[55] The lack of information flowing to the Respondent concerning the treatment of his children is concerning. A case conference with the children's caregivers would surely benefit everyone in understanding how they will be treated for their obvious current trauma, however caused. An independent assessment would probably be of great help.

Source and Structure of Allegations

[56] It is apparent that the bulk of the allegations reported here are reported by the Applicant as she relates what the children have said to her and what she reports seeing. The structure of the allegations is largely built on the foundation of what she has relayed from the children to others.

[57] I am disappointed that the CAS is no longer engaged with this matter.

Impact on the Children

[58] It seems self-evident that the children whatever happens are squarely in the middle of this dispute. Past history from the time of the start of the application in 2018 outlined repeated and pervasive interrogations by the Applicant of the children – first as to physical abuse by the Respondent and his family, evolving into detailed sexual abuse allegations immediately after the release of the order restoring access. The vast bulk of the allegations are routed through the lens of the Applicant who as observed in the CAS protection application was not prepared to have anyone speak to the girls except in her presence. Indeed, she suggested in effect that she conduct the investigation. By and large that is what has happened on the face of this record.

[59] Whatever the rights and wrongs of this matter, the children appear to be in grave danger of psychological harm on a vast scale which may affect them for years. I fear that the damage has already progressed to the point where, true or not, they are fully convinced that the Respondent and his family are monstrous sexual predators.

[60] I urge that the Dufferin CAS (who will receive a copy of this endorsement) take a sober look at what they may yet do to help this family.

[61] I have asked the Office of the Children's Lawyer to become engaged here. At first, I was reluctant to ask them. Now I feel that their intervention here would be very helpful to these two little girls. To do so is up to them, but I will copy this endorsement to them if it helps their decision.

Restraining Order and Communication

[62] The Applicant again seeks a restraining order here. As yet there is no evidence that such an order is proper or necessary. The parties both are (by choice) self-representing. They need to communicate to continue this matter. Such communication is expected to be civil and confined to the four corners of this dispute. No one on one verbal communication is necessary and should be avoided. If this advice is insufficient, I will address the matter again.

Decision on Access

[63] The key issue before me is whether there should be interim access between the Respondent and his girls. He offers supervised access if necessary.

[64] Sadly, I cannot permit access at this time and on this record.

[65] This is not because I believe the Applicant or disbelieve the Respondent: I can't order access because however caused, on this untested record, there is a high degree of probability that forcing access without much focused pre-counselling or therapy will cause psychological harm to the girls. They were either abused or believe by now that they were abused. I will not visit the sins of their parent, if any, upon these little girls.

[66] This is not a "victory" for the mother nor a "defeat" for the father although I suspect they will each see it that way. These children are now damaged. I will not risk adding to their damage on this flimsy untested record.

[67] The Respondent is the adult here. He is better able to bear the short-term disappointment of this order than the children are. There is no basis to grant his request to simply order that they have weekend access literally this weekend.

Costs

[68] The Applicant has been "successful" on this motion, however by her actions to date in this disturbing matter is not particularly deserving of costs. My decision here is made to protect the children, not to recognize the veracity of her evidence. In any event she is self-represented such that costs are unlikely to flow in her direction. No offers to settle were referenced.

Order

[69] I therefore make the following interim order (not on consent):

1. As previously ordered, I ask that the Office of the Children's Lawyer engage this matter. The parties are to file their intake forms forthwith. A copy of this endorsement shall be sent by court admin to the OCL to supplement the comments set out when I signed the order.

2. A copy of this endorsement shall be sent by court admin to Kathleen O'Grady, counsel, Dufferin Child and Family Services, for the consideration of that Agency.

3. The extracts from the child protection proceeding (116/19 at Orangeville) contained as exhibits to the Respondent's affidavit shall be removed from the continuing record and placed in the file in a sealed envelope inscribed: not to be opened without further judicial order.

4. There are no costs of this motion.

5. Pending further court order or the written agreement of the parties, signed witnessed and dated, there will be no access between the Respondent (Father) and the children of the parties, SGM (DOB: …) and SMM (DOB: …).

6. The Applicant shall not discuss this court action with the children.

7. Adjourned to November 18th, 2020, at 10 am via Zoom TBST as previously endorsed.

B. E. Pugsley

Justice B. E. Pugsley

OCJ at Orangeville