W A R N I N G
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.
ONTARIO COURT OF JUSTICE
DATE: 2022-08-04 COURT FILE No.: Stratford 704-21
B E T W E E N :
Children’s Aid Society of Huron-Perth Applicant,
— AND —
A.A. and K.H. Respondents
Before: Justice K.S. Neill Heard on: July 19, 2022 Endorsement released on: August 4, 2022
Counsel: A. Lamptey ................................................................ counsel for the applicant society A. Hodder……………………………………………. counsel for the respondent, A.A. D. Winninger…………………………………………. counsel for the respondent, K. H. E. Samli ............................................ counsel for the Office of the Children’s Lawyer, legal representative for the children
Neill, J.:
[1] In the context of this Protection Application commenced on July 27, 2021 regarding the children, D., age 5, and H., age 7, the father has brought a motion pursuant to s. 98 of the Child, Youth and Family Services Act (“CYFSA”) seeking an order that the children participate in an assessment with respect to their allegations of sexual abuse by the father and whether or not their allegations have been coached or influenced by a third party.
[2] After the parents’ separated in 2019, the father was initially having alternate weekend unsupervised parenting time. The father’s parenting time changed in April, 2021 after sexual abuse allegations were made against him to being supervised by the paternal grandmother on Sundays from 10 to 6 p.m. After the Society’s Protection Application was commenced at the end of July, 2021, on August 9, 2021 a temporary without prejudice order was made placing the children with the mother subject to a supervision order, but restricting the father’s access to the children to be supervised and at the discretion of the Society.
[3] A Temporary Care and Custody Hearing was heard in October, 2021. The history of the children’s disclosures of sexual abuse by the father are outlined in my decision dated October 28, 2021. The father was charged with one count of sexual interference regarding D. Many of the children’s disclosures of sexual abuse were made to and reported by the mother.
[4] On October 28, 2021, a temporary order was made confirming that the children remain in the care of the mother pursuant to a supervision order. The father’s access with the children was ordered to be twice weekly for at least 6 hours per week, with access to be supervised either by Society staff or supervisors approved by the Society. It was ordered that once the children engage in counselling, the Society shall reassess the father’s access to determine if it can be increased. Both children had reported to their OCL counsel, Ms. Samli, that they have positive feelings towards their father and did not raise any worries about access. At the Temporary Care Hearing, Ms. Samli supported expanded access between the children and their father.
[5] Since the Temporary Care Hearing was argued, on January 28, 2022, the sexual charge against the father regarding D. was withdrawn.
[6] After the order of October 28, 2021, the father had access with the children on Saturdays and Sundays from 11 a.m. to 2 p.m., with 2 family supervisors present as approved by the Society. On April 30, 2022, there was a further allegation that the father had sexually assaulted D. during a supervised access visit and again the father was criminally charged with a condition that he have no contact with children unless pursuant to a family court order. Therefore, the father brought a motion to enable him to have ongoing access with the children.
[7] On May 16, 2022, a temporary without prejudice order was made that the father may have access with the children, at the discretion of the Society as to supervision, duration and location, including supervisors for access.
[8] The recent charges against the father were withdrawn on June 27, 2022. The mother filed a letter from Assistant Crown Attorney, Lauren Grant dated June 21, 2022, indicating that although this is not a case of the children being disbelieved, the Crown has determined that there is no reasonable prospect of conviction with respect to the charges.
Position of the Parties
[9] The father has maintained his innocence of sexual conduct towards his children throughout these proceedings. He is very concerned about the possibility that they have been coached. He does not believe that the Society has done an independent assessment on the issue of coaching and wants an assessment completed. He proposes that Dr. Louise Sas could complete the assessment. However, he cannot afford to pay for the entire cost of the assessment. At the motion, the father agreed that he may have to contribute something towards the cost of the assessment but would need a payment plan for his contribution.
[10] The Society takes no position on the assessment but believes that both parents should be assessed for the issue of coaching as both parents have made similar allegations of coaching against the other. The Society further argues that they have assessed the issue of coaching during their own investigation and have interviewed the children privately and independently. The officer in charge of the recent investigation, Officer MacRea did not advise of any concerns she had regarding coaching. It is the Society’s original position that if the assessment is ordered, the father should pay for the costs. However, at the argument of the motion, the Society appreciated that if the court agreed that an assessment was necessary, they do have the financial means to pay for the assessment.
[11] The mother takes no formal position with respect to whether or not the s. 98 assessment is ordered. She agrees that Dr. Sas is very experienced and qualified to complete the assessment but is unwilling to pay for the cost of same.
The Assessment
[12] Section 98 of the CYFSA indicates that:
S. 98(1) ORDER FOR ASSESSMENT: (1) In the course of the proceedings under this part, the court may order that the child, the parent of the child, or any other person, other than a foster parent, who is putting forth a plan for the care and custody of or access to the child undergo an assessment.
[13] The type of assessment is not specified under the Act, and could include a wide variety of assessments, including medical, emotional, developmental, psychological, educational or social assessments. However, the Act sets out the general criteria for ordering an assessment in s. 98(2), as the following:
Section 98(2): CRITERIA FOR ORDERING AN ASSESSMENT – An assessment may be ordered if the court is satisfied that,
(a) An assessment of one or more 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.
[14] The necessity for having an assessment done is for the assistance of the court and not the parties, and it must be for a specific and specified purpose. The court has to know what evidence is being sought from the assessment. Children’s Aid Society of Algoma v. M.L.B., 2012 ONCJ 456
[15] The parties do not oppose the assessment being done. One of the significant issues in this case are the allegations of sexual abuse of the children and the allegations of coaching by both parents. As in the case of Children’s Aid Society of Toronto v. K.O., 2003 ONCJ 52785 where Justice Spence was faced with a similar issue, he found both allegations of sexual abuse and coaching to be so serious that the expertise of an assessment by a psychiatrist with extensive experience dealing with children would be of great assistance to the court.
[16] In the case before Justice Spence, the Society sought to rely upon the expertise of the police at trial with respect to the issue of coaching. Justice Spence indicated, at paragraph 17, that:
“a police officer’s opinion at trial that the children lied or that the mother lied is of limited assistance to me if it is the sole or primary piece of evidence in this puzzle”.
[17] Justice Spence found that the expertise of a psychiatrist who had extensive experience dealing with children who has written articles on the issue of assessments in custody and access disputes where there are sexual abuse allegations would be of great assistance to the court.
[18] In this case, the Society indicates that the officer in charge of the sexual abuse investigation did not indicate any concerns of coaching, and will rely upon this evidence at trial. I agree with Justice Spence that the assessment of a psychiatrist with specific expertise in the area of coaching would be of great assistance to the court in this difficult case.
[19] I find that an assessment by a qualified psychiatrist or psychologist on the issue of coaching is necessary in this case and is evidence that is not otherwise available to the court.
[20] Once a determination is made that an assessment is necessary pursuant to section 98(2), the next step is to select a person to perform the assessment and to have the court appoint such a person. The father proposes that Dr. Lousie Sas complete the assessment regarding the issue of coaching, but is open to any assessor proposed by the parties.
[21] Following argument of the motion, on July 19, 2022, I ordered that, for reasons to follow:
There shall be an order pursuant to s. 98 of the CYFSA that the children, D.H. born [...], 2016 and H.H. born [...], 2015, and the respondent parents shall participate in an assessment with respect to the children’s allegations of sexual abuse and an assessment as to whether those allegations have been coached or influenced by a third party, with the issue of the assessor and particulars of the assessment to be dealt with on the next court date.
The Society shall pay for any retainer to have the assessment commenced, with the issue of the final costs for the assessment to be determined in the reasons for judgment.
[22] To avoid delays, I wanted the assessment to be able to commence immediately, and adjourned the matter to August 9, 2022 for the parties to agree on an assessor.
[23] The main issue in dispute is the cost of the assessment. Should Dr. Sas be appointed to complete the assessment, she estimates that the cost of the assessment would be between $13,500.00 and $15,000.00.
The Law and Analysis:
[24] Section 98 does not provide any guidance as to which party should pay for a court-ordered assessment. However, it is clear that the court has the jurisdiction to order who must pay for the assessment. Children’s Aid Society of Toronto v. K.O., 2003 ONCJ 52785
[25] In Children’s Aid Society of Toronto v. K.O. following his order made on the mother’s motion for a s. 98 assessment, on this issue of costs, Justice Spence stated, at paragraph 23:
I reject the society’s position that, simply because the mother argued strenuously for this assessment, she should then be responsible for its cost. From the perspective of the court, it is implicit in the making of a s. 54 [now s. 98] assessment order that the court requires this assessment – regardless of which party requested it. It is, therefore, entirely wrong in principle to submit that whichever party requests the assessment ought to pay for it, failing which there will be no assessment.
[26] In that case, it was acknowledged that the mother had very limited financial resources and was not in a position to pay for the assessment herself. Justice Spence ordered that the Society pay for the cost of the assessment.
[27] The fact that the Society is not requesting the assessment is not determinative of the issue of payment. When faced with the issue of payment for a s. 98 assessment, Justice Lalonde in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. M.J., 2009 ONCJ 6241 considered that the Society was the applicant, the court had determined that the assessment would provide great assistance to the court and is necessary to make a determination, and the parents did not have the ability to pay for the assessment. Justice Lalonde ordered that the Society pay for the costs of this assessment.
[28] The father’s recent employment pays $23 per hour. On a full-time basis that equates to an annual salary of just over $45,000. The father’s child protection and criminal legal bills are in excess of $26,000.00 to date. The father also continues to pay the table amount of child support to the mother, except for the month of July, 2022. This is the father’s motion and he has some, albeit limited, ability to pay.
[29] I have found that the requested assessment would be extremely beneficial to the court to determine the issues in this case. The concern is that if the father is solely responsible for paying for the assessment, it may not occur due to his limited means. Although I am sympathetic to the financial strains on the Society, out of all of the parties before the court, they have the means and should also assist with payment of the assessment.
[30] Therefore, I order that there be an assessment with the father paying 25% of the cost and the Society paying 75% of the cost, with the Society to pay any required retainer fee to ensure that the assessment proceeds without delay. These costs could be readjusted depending on the ultimate outcome of this matter.
Order:
With respect to the costs of the s. 98 assessment ordered on July 19, 2022, the father shall be responsible for 25% of the cost and the Society shall be responsible for 75% of the cost, with the Society to pay any required retainer fee to ensure that the assessment proceeds without delay.
Should the father not have the ability to pay his 25% share of the costs, the Society will pay the father’s portion on his behalf, and the father will enter a repayment plan with the Society to reimburse the Society for his portion of the assessment costs.
Released: August 4, 2022 Signed: Justice K. S. Neill