BARRIE COURT FILE NO.: FC-06-640-01
DATE: 20150804
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: H.L., Applicant
and
M.K., Respondent
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: Lynn Burgess, for the Applicant
M.K., Self-Represented
HEARD: July 22, 2015
ENDORSEMENT
[1] This motion is brought by the applicant father for expanded access with his daughter, F.L., born […], 2004. The father wants to re-establish his relationship with his daughter and establish a graduated access regime. The respondent mother agrees to a much more limited access regime. The case has a long history of court orders, allegations of sexual abuse and conflict.
[2] For the reasons set out below I allow the father’s motion for expanded access on a graduated basis, but on a slower schedule than the one he has proposed.
Background
[3] The father and mother were involved in a common law relationship of approximately sixteen months which resulted in the birth of their daughter. The child was four months old when they separated in February 2005. The father commenced Family Court proceedings in 2006, seeking specific terms of access. The terms of custody, access and child support were settled on a temporary basis by court order, dated August 23, 2006.
[4] In September 2009, just three months before the father’s Family Court action was scheduled for trial during the December 2009 sittings, the mother accused the father of sexually abusing their daughter, who was then four years of age. Her affidavit material in the present proceeding sets out her allegations in this regard. She alleges that her daughter told her that her father was “keeping her up late at night” and “touching her at night and that it hurt. She said that he was putting cream on her saying that she needed it because she was having a reaction to poison ivy.” The father was arrested and charged with sexual assault and sexual interference on September 16, 2009. On October 23, 2009, the father was charged with a second set of criminal charges arising out of the mother’s allegation that he had sexually assaulted her at the time of their separation in 2005.
[5] As a result of the criminal charges, the Family Court matter was removed from the December 2009 trial list and the father did not have any contact with his daughter.
[6] The first set of charges regarding the allegation of sexual assault of the daughter proceeded in June 2011. On cross-examination, the daughter acknowledged that she did not remember any sexual touching. Following the close of the Crown’s case, the Crown Attorney invited the judge to dismiss the charges and enter an acquittal. On June 22, 2011, Justice Harper dismissed the charges against the father.
[7] The second set of charges, those relating to the assault of the mother, proceeded to trial on October 21, 2011 and, after three days of cross-examination of the mother, the case was adjourned to February 8, 2012. A few days before the trial was to continue the Crown Attorney advised the defence that the trial would not continue and on February 8, 2012, the judge dismissed the charge of sexual assault.
[8] Following the dismissal of the criminal charges the father tried to re-establish some supervised access with his daughter, but this was rejected by the mother, who advised that she would not be prepared to support access until a proper recommendation was obtained from a mental health professional.
[9] On September 14, 2012, the parties attended a settlement conference and agreed to jointly retain psychologist, Dr. Peter Marshall, to conduct an assessment on the needs of the child with the focus on the future relationship, if any, between the father and his daughter. Dr. Marshall is a psychologist with more than thirty years’ experience specializing in the treatment of children, adolescents and families, and has conducted numerous assessments relating to custody and access.
[10] Dr. Marshall provided a very detailed and carefully considered report on October 15, 2013. Dr. Marshall interviewed both parents and daughter and administered various clinical evaluative tests to the father. Dr. Marshall noted that the daughter knew that she no longer saw her father because he had touched her in the genital area, but that “she did not remember the touching, but had been told about it by her mother and stepfather.” She did recall having fun with her father and “appeared to have a genuine recall of her [paternal] grandparents” whom she described as “nice” and whom she would want to see again. Dr. Marshall concluded that while the child had very little memory of her life before 2009, what little she could recall of access suggested “it was a positive experience, both with respect to contact with her father and her paternal grandparents.”
[11] While acknowledging the limitations of psychological assessments, Dr. Marshall indicated that the assessment conducted did not indicate that the father had personality characteristics or tendencies that would potentially undermine a parent-child relationship, and that his profile from the Child Abuse Potential Inventory does not conform to the pattern associated with high risk of physical abusiveness to children.
[12] Dr. Marshall’s report stated:
There is very little to indicate that FL has any recollection of being sexually molested by her father. During the initial interview, she was clear in stating that she had no memory of the alleged abuse. She also indicated that her mother and stepfather had told her that her father had molested her. During the second session, FL told me that she had a ‘vague’ memory of being molested by her father. During the same session, however, she clearly indicated that she had been reminded of what to say during the interview by her stepfather and mother. The foregoing suggests strongly that she was ‘coached’. In drawing this conclusion, I want to emphasize that ‘coaching’ does not necessarily imply that the parent deliberately ‘planted’ a false allegation. It can always be the case that the parent believes the abuse happened. The ‘coaching’ situation in such a situation would not be malicious; rather its purpose would be to increase the likelihood that the child will disclose something that did – or is believed to have – happened. Regardless of the underlying motivation, such coaching seriously undermines the credibility of the disclosure.
[13] In light of this assessment, Dr. Marshall found “no basis for concluding that resuming access would be detrimental to FL” and recommended initial access taking place in a supervised setting and involving both the father and his parents, who could have a role to play in addressing matters relating to privacy and appropriate touching. He recommended a specific program that related to cases of alleged but unsubstantiated sexual abuse. If the initial visits and sessions progressed well, there could be “a quick transition to access in the grandparents’ home during the day” with the grandmother providing “any aspect of physical care that might involve a degree of physical beyond normal demonstrations of affection…” Assuming no problems were encountered access would progress to overnight visits.
[14] Initially, the mother would not agree to implement the recommendations of Dr. Marshall. The matter returned to trial scheduling court and the parties signed a consent to temporary order, dated November 12, 2013, agreeing to retain family therapist, Lois Chouinard, “to implement the recommendations of Dr. Marshall.” Lois Chouinard was to determine “the progression of and the timing of the resumption of access and any other matter relating to the resumption of access…”
[15] This process was conducted throughout 2014 and ended on December 20, 2014, when the mother unilaterally terminated the process, alleging that the child was refusing to participate. The progress of that process was set out in Ms. Chouinard’s report, dated January 31, 2015.
[16] In her lengthy and detailed report, Ms. Chouinard described how the process of reconciliation between the father and the child began as office appointments and expanded into planned community activities, building progressively from one hour to eight hours. Ms. Chouinard states that the mother indicated throughout her ongoing safety concerns for her daughter in the care of the father and her resentment that the court had pushed the reconciliation efforts forward. Ms. Chouinard states: “[M.K’s] hostility towards this writer grew throughout the process, she was slow to respond to email and then refused to communicate without others present, she expressed her anger and hostility in front of F.L., her cooperation deteriorated…M.K. often projected her own mistrustful, angry feelings about this writer to be her daughter’s feelings about this writer.”
[17] Ms. Chouinard noted that the child “became comfortable with spending periods of time doing activities with H.L., with this writer being in the background of the activity”, but that “distress was observed for F.L. when she was exposed to M.K.’s angry reactive actions and comments. M.K.’s behavioural escalations were more intense at each phase that the reconciliation/SACS access progressed to in time or format.”
[18] Below is a summary of the conclusions made by Ms. Chouinard in her report:
(a) F.L’s distress has developed when her mother has pressured her to share her wishes and feelings about the reconciliation process. The projection of M.K.’s personal distress, negative feelings about the process onto F.L. has been emotionally abusive to F.L. F.L. has not received permission, through actions or words, from her mother to develop a relationship with H.L.; yet she has and that relationship has shown growth during the therapy process.
(b) M.K.’s actions must be addressed, as they are alienating and emotionally distressing to her daughter. M.K. is unable to insulate her daughter from her own beliefs and emotions.
(c) M.K. is emotionally stuck in her belief that her daughter was sexually assaulted by H.L. F.L. has given inconsistent disclosure about this throughout the years…The current interactions between H.L. and F.L. are observed to be appropriate, safe, caring and normalized father-daughter exchanges. F.L. shows comfort, humor, playfulness, respect and good listening with H.L.
(d) F.L. and H.L. have made significant gains in developing their father-daughter relationship after a lengthy period of disruption during which F.L. was exposed to multiple traumatic events including Court testimony, her mother’s continual hostility towards H.L. and high conflict during transitional experiences. It is this writer’s opinion that there are no safety issues for F.L. when in the care of H.L.
[19] Ms. Chouinard recommended that access for the father continue to occur and progress with the goal of eventually returning to every other weekend, summer holidays and special occasions, with diminishing clinical supervision. Ms. Chouinard also recommended that the mother arrange for a referral for herself for a psychiatric assessment and evaluation of her mental health and will being.
[20] The mother has alleged that Ms. Chouinard and the father “became very close throughout the reconciliation therapy process…and developed a friendship. As a result H.L. was able to convince Lois Chouinard that I was acting in bad faith and was too overcome with my anger towards H.L. to allow the reconciliation process to work”.
[21] On April 9, 2015, the father brought this motion to expand temporary access between him and his daughter in accordance with the recommendations of Ms. Chouinard. This access would progress from every other Saturday or Sunday for a period of eight to nine hours (supervised for two hours) for three months, to every other weekend on both Saturday and Sunday from 9:30 a.m. to 6:00 p.m. (supervised for two hours each day) for three months, to every other weekend from Saturday at 9:30 a.m. to Sunday at 6:00 p.m. (supervised for two hours each weekend) for one month, to every other weekend on both from Friday at 6:00 p.m. to Sunday at 6:00 p.m. (supervised for two hours each weekend) for one month, and thereafter on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. without supervision.
[22] The mother’s position is that the father’s access should be supervised and limited to one to two hours every other week for four to six months. After that period access would be reviewed by Child Youth and Family Services, and, if the child is feeling safe and agrees to continue, access could be expanded.
[23] The mother relies primarily on the affidavit of Daria Dalton, a social worker and Family Service Worker with Simcoe Muskoka Child, Youth and Family Services (SCCYFS). Ms. Dalton’s affidavit was signed the day before this motion was heard, and no one from SCCYFS appeared at the hearing to make submissions. Ms. Dalton indicates in her affidavit that she has reviewed the affidavits of the father and the mother filed in this matter and had “one brief phone call” with the father, although she does not set out what was discussed in that brief call. She also spoke with the child on one occasion about her wishes with respect to access with her father.
[24] Ms. Dalton’s affidavit states: “I can confirm that there is an ongoing [child protection] file but the current child protection concerns are not in regards to H.L.” This statement is not particularly helpful, and raises several questions, which the court would ideally want answered in this case. To whom do the current child protection concerns relate and what is the nature of these concerns? Do they relate to the mother or the child’s stepfather? It is not clear why the SCCYFS has declined to fully disclose this information in the context of this case. What is significant, however, is that they do not relate to the father.
[25] Ms. Dalton’s affidavit states: “I can advise the Court that the Society verified sexual abuse of F.L. by H.L. that was reported on September 10, 2009.” She does not say any more than this on the important issue of sexual abuse. She does not identify by name who at the “Society” made this verification. Nor does she offer any explanation as to how this allegation was verified, a particularly troubling omission given the dismissal of the criminal charges and Dr. Marshall’s report which indicated that the child did not have any memory of being abused and his concerns about coaching. There is no explanation or analysis of any kind to explain this “verification” and, as a result, I am inclined to give it no weight.
[26] Ms. Dalton’s affidavit states that during their discussion, the child made the following statements:
(a) She had told the reconciliation therapist, Ms. Chouinard, that she did not want to have the access visit in December 2014;
(b) She felt like she had to tell Ms. Chouinard many times that she did not want to have visits with her father anymore;
(c) She had already told Ms. Chouinard on her third individual therapy session that she was nervous about the access visits;
(d) She got less nervous after seeing H.L. the first few times and “he was nice”;
(e) She had trouble with motion sickness and the drive to and from access was too long for her;
(f) She was “scared” and “nervous” about spending extended periods of time, i.e. more than one hour, with H.L.
(g) She might be open to short visits for an hour if M.K. or M.P. were present. I asked if anyone else could be there and she said she would have to meet them to know if she would be comfortable;
(h) She did not want to be alone with M.K.;
(i) No one had told her to say she did not want to go for access. It was her choice to not have the last scheduled visit in December 2014.
[27] Significantly, Ms. Dalton acknowledges that when this conversation with the child occurred, the child was aware that it was possible for her stepfather to overhear the conversation. Ms. Dalton does not explain why the conversation was conducted within his earshot rather than in private.
[28] While Ms. Dalton believes that the concerns about being uncomfortable and nervous about access with the father as expressed by the child were genuine, she acknowledged that the “conversation occurred in a context of ongoing conflict and multiple assessments” and indicated that “the Society is not taking a position but offering a description of what the child has stated on one occasion” and she recommends that a children’s lawyer be appointed for this matter to help the court obtain information about the child’s wishes.
[29] Ms. Dalton’s affidavit concludes as follows:
I believe, based on this and other conversations I have had with F.L., that F.L. has experienced emotional harm due to adult conflict. I agree that she would benefit from individual counselling to help her cope with this. I have recommended that M.K. and/or M.P. access counselling for her and I have made suggestions for referrals to local services”.
[30] Ms. Dalton also indicates that she supports M.K. “having a psychiatric assessment …as recommended in the report of Ms. Chouinard.”
Analysis
[31] In deciding the father’s motion for access to his daughter, I am bound by s. 24 of the Children’s Law Reform Act, R.S.O. 1990, C.12, which requires that the decision be based on the best interests of the child. The relevant provisions read as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
- (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[32] The child’s best interests must be ascertained from the perspective of the child rather than of the parents. The wellbeing of the child must take precedence over the wishes of the parent seeking access. (Denmore v. Denmore [2006] O.J. No. 4258 at paras. 20-22). In Gonzalez v. Tobradovic, 2014 ONSC 2468, at para. 76, Justice Price summarized some additional factors which the Court must consider in making this assessment:
(i) the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;
(ii) the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner;
(iii) the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and
(iv) whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.[citations omitted]
[33] The child should have the maximum contact with both parents if it is consistent with the child’s best interests (Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27). In the present case, both parties agree, at least in principle, on graduated access on the basis of the considerations listed in s.24(2), and in particular s.24(2)(b) (the child’s views and preferences, if they can reasonably be ascertained). As the conflicting expert evidence demonstrates, there has been some difficulty in ascertaining the child’s true views and preferences in this regard.
[34] The best interests of the child may be met by having a loving relationship with both parents and should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental wellbeing (Pastway v. Pastway (1999) 49 R.F.L. (4th) 375 (Ont. Gen. Div.). Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children, like the one in this case, who require a gradual reintroduction to a parent until such time as the relationship has been sufficiently rehabilitated or re-established (Najjardizafi v. Mehrjerdi 2004 ONCJ 374, [2004] O.J. No. 5472 (OCJ).
[35] In cases where sexual abuse has been alleged but not confirmed, the court must first consider whether it is satisfied on the balance of probabilities that it occurred. But even where the evidence does not support a finding of sexual abuse on a balance of probabilities, the court must go further and consider, on the basis of the whole of the evidence, whether there is a risk of harm to the child if access is given without protection against that risk. A risk must be more than speculative or simple conjecture (C.B. v. W.B., 2011 ONSC 3027, at paras. 125 – 137). In this regard, I adopt the conclusion set out by Justice Ricchetti in C.B. v. W.B., supra, at para. 139:
In conclusion, the court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child. It requires the Court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The Court's determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.
[36] For the reasons set out at paras. 6, 12 and 25 above, I am not persuaded on a balance of probabilities that the sexual abuse alleged by the mother did occur. The preponderance of evidence from both the trial and Dr. Marshall indicates that any recollection that the daughter may have of this alleged abuse is the result of being informed of it by her mother and/or step-father.
[37] Having reviewed the various affidavits and expert reports, I am most persuaded by the careful and detailed analysis of Dr. Marshall and Ms. Chouinard. What is most significant from these reports is that neither found any basis for concluding that resuming access would be detrimental to the child and both expressed a concern that the child has been unfairly influenced by the mother. Ms. Choiunard, who spent the most time together with the father and the child, concluded that “F.L. and H.L. have made significant gains in developing their father-daughter relationship after a lengthy period of disruption”. The analysis and conclusions of Dr. Marshall and Ms. Chouinard appear to be based on a more comprehensive review of the child’s circumstances than the more cursory report provided by Ms. Dalton. In addition, I am not persuaded that Ms. Chouinard’s approach to this case has been anything less than professional and objective, and I reject the mother’s assertion that Ms. Chouinard did not approach this case with complete objectivity.
[38] Based on this expert evidence I conclude that there is a low risk of harm to the child but significant benefits to her having a relationship with her father, and it would therefore be in the her best interest to continue with a modified version of the graduated access proposed by Ms. Chouinard. The modifications to be made will continue the graduated access taking into account the interruption of access since December 2014, and the child’s expressed discomfort, which must be respected whatever its origin.
Conclusion
[39] Based on the foregoing this court orders:
(a) Access shall recommence on the second weekend following the release of this Order
(b) This access will progress from every other Saturday or Sunday for a period of eight to nine hours (supervised for two hours) for six months, to every other weekend on both Saturday and Sunday from 9:30 a.m. to 6:00 p.m. (supervised for two hours each day) for three months, and then to every other weekend on both Saturday and Sunday from 9:30 a.m. to 6:00 p.m. without supervision for three months.
(c) Thirty days prior to the end of this first year the access will be reviewed by Lois Chouinard, who will conduct an interview or interviews with the daughter as she considers appropriate to establish the daughter’s views and preferences and make recommendations with regard to expansion of access to overnight on alternate weekends. If the parties can agree on a professional other than Ms. Chouinard they may retain that other person. The cost of this assessment will be shared by the parties.
(d) All access exchanges shall occur under the supervision of the Supervised Access Center or by another professional agency retained by the applicant.
(e) All access exchanges will take place in Collingwood. The paternal grandmother, C.L., may act as agent for the applicant and pick up the child and return her to access exchanges.
(f) Neither party may make any statement or gesture in the presence of their daughter which is derogatory of the other parent or permit her to be in the presence of a non-party who is making derogatory statements about the other parent. Both parties shall take reasonable steps to insulate her from adult conflict.
[40] If the parties cannot agree on costs, the applicant may provide written submissions within 30 days (maximum 5 pages in addition to the bill of costs), and the respondent will have 20 days to reply with the same page limit.
Charney J.
Released: August 4, 2015