Preamble

WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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) Offences 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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 07 20 COURT FILE No.: Sault Ste. Marie 38/20

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA Applicant,

— AND —

L.M. A.L.-S. B.B. Respondents

Before: Justice H. A. Mendes

Heard on: June 6, 2022 and June 22, 2022 Reasons for Judgment released on: July 20, 2022

Counsel: R. Lindenbach for J. Mealey........................................ counsel for the applicant society S. McCooeye for E. McCooeye......................... counsel for respondent A.L.-S. (father) K. Whitfield................................. counsel for respondent B.B. (maternal grandmother) Not appearing although served with notice................................................. L.M. (mother)

Endorsement

MENDES J.:

[1] The Children’s Aid Society of Algoma brought a motion for an order pursuant to section 98 of the Child, Youth and Family Services Act, initially returnable on January 26, 2022, for an assessment of the respondent father, A.L.-S.

[2] The questions the Society would like the assessor to consider are:

(a) What is the father’s psychosexual profile?

(b) What risk, if any, does the father pose to a minor male child?

(c) What risk, if any, does the father pose to a minor female child?

(d) If the father does pose a risk of harm, are there any services or programs that the father could undertaken to lessen or diminish the risk, and what is the likelihood of success?

(e) If the father does pose a risk of harm, what recommendations, if any, to generally reduce the risk?

(f) Does the father have any other mental health considerations that would affect the father’s level of risk if any to children?

(g) Any other issue that the assessor believes to be appropriate.

Background

[3] This protection application was commenced on February 27, 2020, with a first return date of March 4, 2020. The subject child, N.M. born […], 2019, was placed in the care of the respondent maternal grandmother, on March 4, 2020, on an interim and without prejudice basis, unopposed by the respondent parents.

[4] The temporary care and custody hearing was held on September 29, 2020, and the decision was released on October 14, 2020. The result of the temporary care and custody hearing was that the without prejudice term of the order dated March 4, 2020, was removed at the temporary care and custody hearing. The child still remains in the care of the maternal grandmother.

[5] Protection findings have not been made yet. The Society seeks a finding under the following sections:

(1) 72(2)(b)(i): there is a risk that the child is likely to suffer physical harm by the person having charge of the child or caused by that person’s failure to care for, provide for, supervise or protect the child adequately.

(2) 72(2)(b)(ii): there is a risk that the child is likely to suffer physical harm by the person having charge of the child or caused by that person’s pattern of neglect in caring for, providing for supervising or protecting the child.

(3) 74(2)(d): there is a risk that the child is likely to be sexually abused or sexually exploited by the person having charge of the child or by another person where the person having charge knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child.

(4) 74(2)(h): there is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[6] A review of the endorsements in this matter reveal that the Society has considered seeking a psychosexual assessment of the respondent father since March 2021. The potential of proceeding with a psychosexual assessment was raised again by the Society at a settlement conference held on August 31, 2021, which notably was the third settlement conference in the matter. The assessment was raised again when the matter was addressed on the child protection list on September 22, 2021, and finally at the trial management conference held on December 7, 2021.

[7] At the trial management conference, the Society was ordered to bring the psychosexual assessment motion by no later than January 19, 2022. The motion for the assessment was filed by the Society on January 20, 2022.

[8] The motion was set for argument on March 7, 2022. The motion did not proceed that day, as the Society’s counsel took an unexpected leave of absence. The motion was rescheduled for argument on June 6, 2022.

[9] On June 6, 2022, the hearing commenced, however the court required further information regarding the specific details of the assessment and the methodology of same so the continuation date of June 22, 2022, was set. Argument of the motion was completed on June 22, 2022.

Position of the Parties

[10] The Society is of the view that a psychosexual assessment, which may include phallometric testing, of the respondent father is necessary for the court to determine the risk that the father poses to the child and the father’s level of functioning. The Society argues that the assessment is necessary for the court to have in order to make the best possible decision in the child’s best interests and that without the assessment, the court will be in a difficult position to determine the issues at trial.

[11] The maternal grandmother supports the Society’s motion. The respondent mother did not attend at the hearing although she was served with the motion and given notice.

[12] The respondent father opposes the motion. The father is of the view that the assessment is not necessary given the information that is already before the court regarding his criminal record and the claims advanced in the protection application. Further, he questions how or why a psychosexual assessment would be required to determine his functioning as a parent. The father believes that the assessment is extremely invasive and infringes upon his section 7 Charter rights of life, liberty and security of the person and section 8 Charter rights of unreasonable search and seizure. Lastly, the father is of the view that the selected assessor is not an expert.

Law

[13] Section 98 of the Child Youth and Family Services Act states:

98 (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (3) and (4):

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

Criteria for ordering assessment

(2) An assessment may be ordered if the court is satisfied that,

(a) an assessment of one or more of the persons specified in subsection (1) is necessary for the court to make a determination under this Part; and

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

Assessor selected by parties

(3) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court.

Appointment of person selected by parties

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

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.
2. The person has consented to perform the assessment.

[14] Section 98(6) states:

Regulations

S. 98(6) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed.

[15] Sections 98(12) provides:

Assessment is evidence

S. 98 (12) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

[16] O-Reg 155/18 General Matters under the Authority of the Lieutenant Governor in Counsel under the Child Youth and Family Services Act provides the following at section 34:

Court Ordered Assessments

Timing of assessment

34. (1) A court may order an assessment under section 98 of the Act if the criteria set out in subsection 98 (2) of the Act are satisfied and,

(a) the court has received evidence, held a temporary care and custody hearing and made an order pursuant to subsection 94 (2) of the Act;

(b) the court has made a finding that a child is in need of protection pursuant to subsection 74 (2) of the Act; or

(c) all parties to the proceeding consent to the order being made.

(2) An order under clause (1) (c) may be made at any time during the proceeding

Contents of assessment order

35. (1) In an assessment order, the court shall include the following:

36. The reason the assessment is necessary.

37. The specific questions that are to be addressed by the person performing the assessment.

38. What questions, if any, specifically require recommendations.

39. The time period for completing and filing the assessment report.

(2) Without limiting the generality of the questions that are to be addressed by the person performing the assessment under paragraph 2 of subsection (1), the court may order that some or all of the following be assessed:

1. The parenting capabilities of the proposed participants in the child’s plan of care, including those attributes, skills and abilities most relevant to the child protection concerns.
2. Whether the proposed participants in the child’s plan of care have any psychiatric, psychological or other disorder or condition which may impact upon their ability to care for the child.
3. The nature of the child’s attachment to a proposed participant in the child’s plan of care and the possible effects on the child of continuing or severing that relationship.
4. The psychological functioning and developmental needs of the child, including any vulnerabilities and special needs.
5. The current and potential abilities of the proposed participants in the child’s plan of care to meet the needs of the child, including an evaluation of the relationship between the child and the proposed participants in the child’s plan of care.
6. The need for and likelihood of success of clinical interventions for observed problems.

Contents of assessment report

36. Without limiting the generality of the contents of an assessment report, every assessment report shall include the following:

37. A resumé of the person performing the assessment outlining, i. the assessor’s academic and professional qualifications and credentials, including any publications relevant to the questions being addressed, and ii. information regarding the type and number of assessments previously conducted by the assessor.

38. A schedule setting out, i. a summary of the instructions received, whether written or oral, ii. a list of the questions upon which an opinion is sought, and iii. a list of the materials provided and considered.

39. A schedule setting out the methodology used in carrying out the assessment, including the interviews, observations, measurements, examinations and tests, and whether or not they were conducted or carried out under the assessor’s supervision.

40. The reasons and factual basis for any conclusions drawn by the assessor.

41. A direct response to the questions presented to the assessor in the assessment order, or an explanation of why these questions could not be addressed.

42. Recommendations where these were required of the assessor, or an explanation of why recommendations could not be made.

Analysis

[17] This matter is very dated. The protection application has been outstanding since February 2020 and while some of the delay may be attributable to the COVID-19 Global Pandemic, it is unacceptable that the Society has waited over two years to bring a motion for a psychosexual assessment, especially since the Society raised its intention to do so in March 2021. The issue of the respondent father being a sexual risk to the child was clearly contemplated by the Society given the findings sought in the protection application.

[18] There is no issue as to the timing of the request for a section 98 assessment as a temporary care and custody hearing was heard on September 29, 2020, and an order made. A section 98 assessment may be ordered if the court is satisfied that it is necessary, and the evidence sought from the assessment is not otherwise available.

[19] The onus is on the Society to demonstrate why the assessment is necessary. The Society has numerous affidavits filed and has obtained police records regarding the father that set out his criminal convictions for multiple sexual assaults, failing to comply with probation orders, assault, mischief, possession of a controlled substance, break and enter, theft, dangerous operation of a motor vehicle, robbery, fail to comply with recognizance and breach of conditional sentence.

[20] The respondent father is currently 34 years old. He is required to comply with the Ontario Sex Offender Information Registry as a result of his convictions in 2007, 2008 and 2013.

[21] The father was found guilty of sexual interference on December 9, 2004, as a young person (16 years old). The father was found guilty of sexual interference of a person under the age of 16 and sexual assault on September 17, 2007, as an adult (19 years old). On May 7, 2008, the father was found guilty of failing to comply with a term of his probation prohibiting contact with children.

[22] On August 13, 2008, the father was found guilty of luring a person under 14 years of age by means of telecommunication and failing to comply with probation. The father was 20 years old at the time of that offence. He was also found guilty of sexual interference on February 20, 2013, at 25 years old.

[23] While the father’s convictions may be somewhat dated, I am of the view that these convictions are very relevant to the chid protection proceeding. The Society argues that the father lacks insight as to the significance of these multiple convictions, based on comments made by the father to the child protection worker. [1]

[24] The father’s insight and understanding or lack thereof regarding his criminal convictions will be subject to cross examination when this matter eventually proceeds to trial. I am of the view that the court certainly is in a better position to make a determination on the issues in this case after hearing evidence from the witnesses, with the benefit of that evidence being tested through cross examination.

[25] I am not satisfied on the evidence before me that a psychosexual assessment or a psychosexual profile for the father is necessary or that it will assist the trier of fact in this case. The use of the term “necessary” in section 98 of the CYFSA means than the assessment must be something more than helpful or desirous. [2]

[26] Further, it is not clear to me what exactly the assessment will entail. The evidence of the Society is that they “propose to rely on the expertise of the assessor as he has the expertise in regards to using the appropriate tools that will provide an accurate assessment in regards to the father and any risk he may pose”. [3]

[27] I asked for further details regarding the nature of the assessment and if it would involve phallometric testing. The information obtained by the Society from the assessor was that the assessment would include phallometric testing and no other testing. [4] The required time for the assessment to be completed is two days.

[28] Even with the “clarifying information” regarding the assessment, I am still not certain as to what the assessment would in fact entail and what will be occurring over the proposed two-day period.

[29] Phallometric testing is, in my view, extremely intrusive and it is the court, and not the assessor, that must determine if phallometric testing, should occur as provided for in the legislation [5]. It appears from the assessor’s email that phallometric testing will be performed but no other standardized testing will be utilized. As such, the Society’s assertion that the assessment will assist in determining the father’s functioning does not accord with the information provided by the proposed assessor.

[30] I am not certain as to the relevance of the results of the phallometric testing. The father already has multiple convictions for sexual interference and sexual assault. The Society has sought multiple findings in the protection application and the trial judge will ultimately have to determine the most appropriate findings based on the evidence if the issue of finding is not resolved. The trial judge as the trier of fact is best positioned to make findings having heard all the evidence.

[31] Even if I were inclined to order the assessment and appoint the suggested assessor to conduct the assessment under section 98, it will ultimately be up to the trial judge to determine if the assessor is in fact a properly qualified expert. Thereafter, if the assessor is qualified as an expert, the trial judge would then determine what weight the assessment should be given, if any.

Order

[32] Consequently, the Society’s motion at Volume 1 Tab 21 of the continuing record for a psychosexual assessment of the respondent father is dismissed.

[33] The child protection application shall be set for a trial management conference continuation with a view that this matter should proceed to trial in short order.

Released: July 20, 2022 Signed: Justice Heather-Ann Mendes Ontario Court of Justice

Footnotes

[1] Affidavit of Renee Jefferson sworn January 18, 2022 paragraph 7

[2] Children and Family Services for York Region v. L.M. et al, 2018 ONSC 6156 paragraph 49

[3] Affidavit of Renee Jefferson sworn January 18, 2022 paragraph 16

[4] Affidavit of Renee Conolly sworn June 17, 2022 Exhibit A page 5

[5] Children and Family Services for York Region v. L.M. et al, 2018 ONSC 6156 paragraph 53