NEWMARKET COURT FILE NO.: FC-13-43934-00
DATE: 20151009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nina Tailor Daya
Applicant
– and –
Anesh Daya
Respondent
Judith Holzman, Counsel for the Applicant
Ken Nathens, Counsel for the Respondent
HEARD: October 9, 2015
RULING ON MOTION
JARVIS J.:
[1] This is an urgent Motion by the respondent father (hereinafter “the father”) and a cross-motion by the applicant mother (“the mother”) dealing with access to their three and a half year old daughter Rheyna, who resides with her mother. Despite the fact that since the parties’ separated in March 2013 unsupervised access has taken place without a court Order, the mother insists that access now be supervised: the father disagrees. This is a high-conflict case.
Background
[2] The parties married on July 8, 2010 and separated on March 27, 2013. Rheyna was born February 13, 2012.
[3] The mother commenced an Application on August 1, 2013 claiming, among other things, a divorce, custody, child support and a restraining Order. On November 13, 2014 McGee J. made an Order, with the parties’ Consent, resolving all issues between the parties including equalization of the spouses’ net family properties (even though not pleaded) save and except for the parenting issues. The divorce was severed from the remaining issues and on December 19, 2014 Wildman J. made a divorce Order.
[4] On November 13, 2014, McGee J. also made an Order appointing the Office of the Children’s Lawyer, which appointment was accepted, and a Report of the Children’s Lawyer pursuant to section 112 of the Courts of Justice Act undertaken and completed by August 6, 2015. That Report recommended that the mother have sole custody of Rheyna and that the child have access with her father. Of importance, in my view, are the communication recommendations in the Report, which are detailed and extensive. Until the events which precipitated the husband’s urgent Motion, he was exercising access with his daughter every second weekend from Friday (4:00 p.m.) until the following Sunday (5:00 p.m.) and every Tuesday evening from 4:00 p.m. to 7:00 p.m. As already noted the custody/access arrangements were informal in the sense that there was no outstanding court Order.
Motions Relief Sought
[5] By letter dated September 29, 2015 mother’s lawyer conveyed to the father’s lawyer her client’s instructions to withhold access to Rheyna due to the mother’s allegation of inappropriate sexual touching of the child. That letter also referenced a Motion date scheduled for later in the month of October, 2015 although as it transpired when this urgent Motion was argued, the court had no record of any such Motion being scheduled. The father moved immediately for an Order for access, to which the mother responded. Both parties agreed to an Order being made requiring the Children’s Aid Society of the Region of Peel to release its records pertaining to the child to counsel, the Society having been given notice of this request and the court being advised by counsel that the Society (for whom no one appeared on the Motion) did not oppose the relief sought.
Evidence
[6] Each party filed their own Affidavits, those of friends and, in the mother’s case, a summary of involvement prepared by a Child and Family therapist to whom the mother had taken the child after the OCL’s Report was concluded on August 6, 2015.
[7] The OCL Report referenced contact with the family’s physicians (past and present), the child’s Montessori school supervisor, the mother’s psychotherapist, a marriage counsellor, an intake worker with the Children’s Aid Society of the Region of Peel, and written reports and documentation from York Regional Police Services, Peel Regional Police Services, Toronto Police Services, York Region Children’s Aid Society and St. Michael’s Hospital (dealing with a 2008 hospital admission of the father).
[8] While the OCL Report, and the parties’ evidence, narrated the parties’ escalating history of conflict, and concerns about the other’s behaviour and parenting styles, what precipitated the Motions now before this court is the wife’s allegation that the father is inappropriately engaging in conduct of a sexualized nature with the child. This is not a new allegation, and it is vehemently disputed by the husband.
[9] Some background is in order.
[10] In March 2015, after the OCL began its investigation, the Children’s Aid Society of the Region of Peel contacted Toronto Police Services after the mother reported that the child had made comments of a sexualized nature to her mother involving her father and that she (the mother) speculated that the child may have been exposed to pornography while residing with the father. An examination by a SCAN nurse practitioner was unremarkable. The mother was told that there were several explanations for the child’s vagina appearing red after a visit with her father that were not trauma based. After speaking with the father, both the police and the CAS determined the incident to be unfounded.
[11] As already noted the OCL Report was dated August 6, 2015.
[12] On August 19, 2015 the mother, without notice to the father, consulted a Child and Family therapist because she was concerned about the child’s behaviour. A summary of the therapist’s involvement prepared by the therapist indicated that the mother had reported that since March 2015 the child had been disclosing concerning behaviours, that she (the mother) had contacted the CAS, that CAS and SCAN interviews of the child had taken place, and that CAS remained involved. The mother was “concerned for her daughter’s safety and well-being and looking for support for her.”
[13] Weekly sessions with the therapist (five in total) followed. The therapist recorded information of a sexualized nature involving the child and her father. All sessions ended with the mother’s participation and, on several of those occasions, the mother “shared” with the therapist what the child was reluctant to say, or really meant. The therapist also recorded other information “shared” with her by the mother about sexualized conduct involving the father and child, as allegedly reported by the child to her mother.
[14] A Report by the therapist to the CAS and, in turn to Toronto Police Services, led to a further contact with the parties and the child, including interviews, but did not result in any steps being taken by either. The husband alleges that the child has been “coached” by the mother and that the allegations made of improper conduct are false and intended to limit the child’s time with him.
Analysis
[15] In Bates v. Bates[^1] Richetti J. was tasked with determining custody and access in favour of a father whom the mother had alleged had sexually abused their four year old daughter. The facts of that case, including the allegations made, bear many similarities to this case. The local Society and police services were involved, and both concluded that the allegations were unfounded.
[16] Richetti J. was confronted with the difficult question of what should the court do when presented with allegations of sexual abuse where the evidence did not support that allegation. He identified three analytical approaches,
The Balance of Probabilities Approach
125 In Canada, some judges have used a balance of probabilities standard to determine whether a child had been sexually abused.
130 Unfortunately, where a “balance of probabilities” or “preponderance of evidence” standard is used where sexual abuse is alleged, the result is either a finding sexual abuse occurred or didn’t occur. Regardless of the outcome, if this civil standard is applied, there is likely to remain considerable uncertainty as to whether the sexual abuse occurred. In other words, a finding there was no sexual abuse using this standard might be made despite a significant or substantial risk that the sexual abuse had occurred. If the court determines that the parent making the allegation did not meet the standard, does the court assume there is no risk of harm to the child relating to sexual abuse in determining what is in the child’s best interests? I think not. It is unclear how a determination of whether sexual abuse occurred using this standard can be of much assistance to the court in determining the degree of the risk of harm to the child and an overall determination as to what is in the “best interests of the child.”
“Real or Substantial” Risk of Harm
131 Aware of the shortcomings of a determination as to whether sexual abuse had occurred using a balance of probabilities standard, most Canadian cases proceed with a risk of harm analysis.
136 If requiring a court to find “real” or “substantial” risk of harm is intended to suggest that the risk must be more than speculative or simple conjecture, I agree. On the other hand, if it is intended to suggest that the risk must be more than “significant”, then I disagree. The use of the qualifying descriptor – real or substantial, detracts from the role of the court which is to assess the risk of harm to the child and apply the risk of harm as a factor in determining the best interests of the child.
Risk of Harm
137 Justice McLachlin’s (as she then was) statement in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.) described the “risk of harm” rather than “substantial”, “significant” or “real” risk of harm as a factor in determining the best interest of the child.
138 I prefer the description by Chief Justice McLachlin to “risk of harm” as a factor in determining the best interests of the child rather than any reference to “substantial” or “real” risk of harm which inherently suggests a threshold to overcome or a degree of weight to the factor.
139 …[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.
[17] The basis of the wife’s insistence that husband’s access be supervised is her concern that the child has been sexually abused. This concern, as already noted, is not new but ever since it was raised a plethora of agencies and services, including other professionals, have been involved in investigatory, counselling and therapeutic capacities. Several were already involved. A number of observations may be drawn from all of this evidence:
(a) The child is described as engaging, articulate and happy;
(b) No academic or classroom socialization concerns were expressed, and the child was noted as functioning appropriately to her stage of development;
(c) The child’s pediatrician reported no concerns with the child and felt she was “adjusting well” (although the context for that comment is unclear). The child’s previous doctor reported no concerns about the parents’ interactions and was not aware of anything that would impact either parent’s ability to care for the child. He had no concerns with respect to her development;
(d) As noted by the OCL there “…is significant evidence of the parents’ inability to engage in co-operative and effective co-parenting of the child. Both parties have acknowledged longstanding issues with communication and documentation from several different supportive agencies and/or services confirm this as well”;
(e) Throughout the course of the OCL’s investigation, the parents continued to excessively argue about many aspects of the child’s care;
(f) The mother’s psychotherapist reported that communicating with the father caused the mother a lot of anxiety and stress. The father was elsewhere described as immature and impulsive;
(g) The allegation of inappropriate sexual abuse by the father in March 2015 was investigated by the Peel Children’s Aid Society (“the Society”). No findings were made and the file closed. No concerns were expressed with respect to the child in her father’s care;
(h) The March allegations against the father were investigated by Toronto Police services and determined to be unfounded. The disclosures allegedly made then are echoed in the more recent summary by the therapist whom the mother retained after receipt of the OCL Report, and repeated by the mother to the therapist;
(i) The child’s pediatrician reported that the mother brought the child to see her in May 2015 due to concerns about what the child had told her. After speaking with the child, who described being hit in the pubic area and “bum”, the child told the doctor that she had a good time with her father. The “rest of the information” came from the mother. On examination, the child showed no evidence of injury or illness;
(j) Further allegations made against the father were also not verified but the Society’s file was kept open to maintain contact with the family due to concerns about on-going adult conflict and “as a support in order to ensure [the child] is not exposed to the conflict”;
(k) As required by law, the therapist reported the disclosures made to her by the child to the authorities in September 2015. A representative of the Society and a constable from the Toronto Police Child and Youth Advocacy Centre interviewed the child on September 25, 2015. While the parties dispute what they were afterwards told by the constable, the fact is that no charges were laid, the investigation was apparently closed and the Society undertook no action except to advise that it was taking no position regarding the father’s access. The Society did suggest to the father that he not insist upon further access until the parties’ Motions were heard;
(l) The OCL Report, the mother’s evidence, and her counsel’s submissions referenced the mother’s concerns about the mental health of the paternal grandmother, and the child being left in her care. The father indicated through counsel that he would not object to an Order that dealt with that concern;
(m) As a general observation, the communication recommendations made by the OCL detailed parameters and reciprocal expectations for the parties’ interactions.
[18] In Bates, Richetti J. determined that, notwithstanding the serious allegations made by the mother, her evidence was insufficiently credible to establish sexual abuse of the child and that there was a low risk of harm, and significant benefit, to the child having a relationship with her father. Counsel for the mother in this case distinguishes Bates on the basis that, unlike that case, there is credible expert evidence of the therapist of sexualized contact or behaviour involving the child and her father. This is troubling for the following reasons:
(a) The therapist was retained by the mother without any notice to the husband, even though there was an on-going dispute between the parties involving the child’s parenting;
(b)The therapist purposely refrained from any inquiry into the parties’ history that precipitated her retainer. Her Report is silent about any history of the parties’ parenting conflicts. It does not appear that the mother shared with her the OCL Report;
(c) The therapist’s recording of the details about the father’s contact with the child as “shared” by the mother, who also told the therapist on many occasions what the child “meant”, is presumably intended to lend to the therapist’s narrative a credibility and weight which, in my view, is unwarranted.
[19] It is clear to this court that, troubling as are the mother’s allegations, she does not accept the conclusions reached by the various agencies and authorities involved that her concerns are unfounded or incapable of verification. She moves for an Order that, relying on the recommendations by the OCL, she be awarded custody but then rejects those recommendations dealing with the father having unsupervised access, and she is otherwise silent about the additional recommendations made by the OCL that would structure the parents’ communication to reduce conflict and promote more effective co-parenting behaviour. Much of the mother’s evidence challenged the father’s parenting skills and style. She challenged the reliability of the police interview of the child in late September 2015 before deciding to withhold access and, possibly to lend credence to retaining the therapist, stated that was done on the recommendation of the Society, although there is no confirmatory evidence of that from the Society.
[20] In my opinion, there is insufficient credible evidence that the child has been sexually abused by her father, and no reason why access should be supervised. As in Bates, there is in my view a low risk of harm, and significant benefit to, Rheyna having a meaningful relationship with her father. I am not prepared to make an Order for temporary custody in favour of the mother.
Disposition
[21] Accordingly, an Order shall issue as follows:
(1)On Consent, in accordance with schedule “A” to the father’s Motion, a copy of which schedule is appended to this Ruling and shall form part of the issued Order;
(2)The child, Rheyna Daya born February 13, 2002 shall continue to primarily reside with her mother;
(3)Effective October 16, 2015, the child shall have regular visits with her father at the following times:
(i) Every second Friday afternoon from after childcare at 4:00 p.m. until 5:00 p.m. on Sunday evening; and
(ii) Every Tuesday after childcare at 4:00 p.m. until 7:00 p.m.
(4)The child shall spend the first week of Christmas holidays with her father in 2015 from December 27, 2015 at 10:00 a.m. to January 3, 2016 at 5:00 p.m.
(5)In the event that the child’s time with her father takes place during a long weekend, the child shall be returned to her mother’s care on the Monday at 5:00 p.m.;
(6)While in the care of her father, the child shall not be left in the sole care of the paternal grandmother;
(7)Neither party shall retain the services of a therapist for the child without the consent of the other. No view is expressed about the continuation of the therapy which the wife recently initiated;
(8)The mother’s cross-motion is dismissed.
[22] Two final comments.
[23] No criticism is expressed about the therapist retained by the mother. She was legally required to report what the child told her. It seems to me, though, that it was incumbent on the mother to share with the therapist considerably more information than was reported.
[24] As for the mother, given the history of conflict between the parties, and the involvement of so many professionals, none of whom has validated her concerns, she should reflect upon the entirety of the OCL’s recommendations.
[25] If the parties are unable to resolve the issue of costs, the father shall deliver his costs submissions limited to three double-spaced pages and Offer to Settle (if any), Bill of Costs and Authorities upon which he was relying within 15 days from the date of release of this Ruling. The mother shall have ten days from her receipt of the father’s submissions to respond. The father’s reply to the mother’s costs submissions (if any) shall be delivered within a further period of five days afterwards.
Justice D.A. Jarvis
Released: October 9, 2015
SEP. 2 8. 20 15 2 :53PM P E E L C A S L E GAL D E P T NO. 10 8 9 P. 3
"Schedule A"
- THIS COURT ORDERS THAT all documents in the possession, control or power of the Children's Aid Society of the Region of Peel as of the date of this order, and as are relevant to the material issues In this action, and, in particular, copies of all statements recorded in writing, be provided to the counsel for the Applicant and the Respondent, except for eny docurnents or portions thereof that are the proper subject of claim for privilege or that Identify non-professlonal third parties or are prohibited by law to be disclosed pursuant to the Child and Family
Services Act or any other legislat!on. Should copies of any such documents be provided to counsel, the same shall be used only for legitimate purposes connected with this litigation and shall be destroyed once the litigation is at an end.
THIS COURT ORDER THAI the above order is deemed to have been satisfied once the documents are available for production to the counsel for the Applicant and Respondent and Child(ren).
THIS COURT ORDERS HAT the requesting party shall be responsible for the cost of photocopying and shall reimburse the Children's Aid Society of the Region of Peel for the same.
[^1]: 2011 CarswellOnt 3876, 2011 ONSC 3027, [2011] W.D.F.L. 4002, [2011] W.D.F.L. 4003, [2011] W.D.F.L. 4006, 203 A.C.W.S. (3d) 101 (Ont. S.C.).