Court File and Parties
Newmarket Court File No.: FC-17-55032-00 Date: 2018-10-18 Ontario Superior Court of Justice
Between: Children and Family Services for York Region, Applicant – and – L.M., Respondent J.G., Respondent
Counsel: Anthony W. Snider, for the Applicant Marlo K. Shaw, for the Respondent Mother Heather Hansen and Shannon Beddoe, for the Respondent Father
Heard: October 10, 2018
Ruling on Motions
MacPherson J.:
Motions
[1] The applicant, Children and Family Services for York Region (“the Society” or “CAS”), brings a motion requesting the following orders: (a) An order placing the child, A.G., in the care and custody of the Society with access to the parents at the discretion of the Society; (b) An order that independent legal counsel be appointed to represent the children, A.G. and M.G.; and (c) An order pursuant to section 98 of the Child Youth and Family Services Act, 2017 (“the CYFSA”) requiring the respondent father (“father”) to submit to a sexual behaviours assessment, to include phallometric testing if deemed advisable by the assessor, such assessment to be conducted by Dr. Alina Iosif.
Summary of Order
[2] As the Society has not completed kin assessments, the motion placing the child, A.G., in the care and custody of the Society is adjourned, on consent, to December 3, 2018. This will provide the Society with an opportunity to consider kin placements in advance of the motion.
[3] For the reasons set out below, the request for independent legal counsel to represent the children, A.G. and M.G., is dismissed.
[4] For the reasons set out below, the request for an order pursuant to section 98 of the CYFSA requiring the father to submit to a sexual behaviours assessment, to include phallometric testing if deemed advisable by the assessor, is dismissed.
Background
[5] The respondents separated in 1998. There are two children of the relationship and they are subject to the child protection proceedings, A.G. (age 13) and M.G. (age 15).
[6] Following separation, the respondents engaged in several years of litigation. The primary dispute surrounded the parenting arrangements for the two children.
[7] The respondent mother (“mother”) has since re-married. Her husband lives in Arizona and she wants to move to Arizona with the children.
[8] In 2015 a 12 day custody and access trial was held before Justice Fryer. She released her decision on May 6, 2016. In her decision, Justice Fryer confirmed that there was conflict throughout the marriage with incidents of domestic violence witnessed by the children. Justice Fryer considered the expert evidence of Dr. Morris, who completed a custody and access assessment, and the evidence of the children’s therapist, Diane Moody. Both agreed that the children’s long term growth required them to have a good relationship with both parents.
[9] Justice Fryer found the father credible. She noted that the father acknowledged his contributions to the circumstances of the children.
[10] Justice Fryer found the mother’s evidence to contain significant disconnects. Her evidence focused on the father’s negative actions. She placed emphasis on the views and preferences of the children without being prepared to acknowledge that those views and preferences might not be genuine expressions and that she might have influenced the children.
[11] Justice Fryer found that the mother was the children’s primary attachment figure. She also identified a number of examples where the mother interfered with the father’s relationship with the children. She found that the children displayed a number of behaviours exhibited by alienated children.
[12] Justice Fryer noted that the father’s ability to facilitate a relationship between the children and their mother was not questioned. The father had some parenting deficiencies, anger management issues of concern and there was also an issue related to his sexual addiction.
[13] At the time of trial in 2015, the children were experiencing significant emotional turmoil. Justice Fryer made a joint custody order placing the children in the primary care of the mother. Justice Fryer stated that she did not place the children in the primary care of their father as she was concerned about the emotional impact on the children and because there were a number of concrete terms proposed to address the children’s unjustified rejection of their father and their mother’s role in it. Included in this were therapeutic supports, a parenting coordinator, and access to the father.
[14] Justice Fryer also refused the mother’s request for permission to relocate the children to Arizona. She did provide opportunity for a review of that decision. In October 2017 the mother commenced an application to again request an order to relocate the children to Arizona.
Child Protection Application
[15] In December 2017 the Society commenced a Protection Application requesting a six month order placing the children in the care of the mother on conditions.
[16] The commencement of the Protection Application was precipitated by A.G.’s November 17, 2017 allegation that his father had inappropriate sexual contact with him. The disclosure was made to the mother and it was not spontaneous. It was made after the mother asked A.G. if his father had ever touched him inappropriately.
[17] The father denied that there was anything untoward in his contact with A.G. indicating instead that he had hugged the child.
[18] Although the CAS child protection worker (“CAS worker”) found certain elements of the allegations credible, her investigation into the sexual abuse allegations was inconclusive.
[19] At the early stages of the Protection Application, the CAS worker did not have the full context of the lengthy litigation history, the expert reports or the decision of Justice Fryer. However, the decision to commence the Protection Application, in addition to the aforementioned allegation of inappropriate sexual contact, also included concerns for the children’s emotional health as a result of the impact on the children of the father’s yelling and the children’s exposure to adult conflict.
[20] Despite the allegation of inappropriate sexual contact, the Society states that there is an enormous concern with respect to the children’s emotional condition. The Society says that there is something very seriously happening. The children have anxiety and fear. The children are being impacted by what is going on.
[21] A motion was heard before me on January 11, 2018. I made the following order: the children, M.G. and A.G., shall be placed in the temporary care and custody of their mother, L.M., subject to the supervision by the Children and Family Services for York Region and subject to the following conditions:
- L.M. shall permit the CAS workers access to the home and the children as requested;
- L.M. and J.G. shall sign the necessary consents to permit the CAS to exchange information with third party collaterals and services who are involved with the parents or children;
- L.M. and J.G. are refrained from discussing the issues relating to the proceeding with the children and shall ensure that the children are not exposed to any negative or derogatory comments or opinions, expressed or implied about the other party; and
- L.M. shall ensure the children attend therapy sessions;
- Access between J.G. and the children, namely, M.G. and A.G., shall re-commence immediately and shall be facilitated by a therapist trained in reunification therapy. The therapist shall be chosen exclusively by the Society after receiving input from the parents. The cost of the therapist shall be shared equally between the parents. The reunification therapist shall continue until such time as the Society determines it is no longer necessary;
- The quantity of access, scheduling of access and location of access shall be at the discretion of the Society.
- In the event access does not occur, or in the event that any of these conditions are not followed, the matter shall return before me for a consideration of an alternate care and custody arrangement. [This order was previously made in Children and Family Services for York Region v. L.M. et al, 2018 ONSC 382, at para 53].
[22] The Society has made great efforts to set up a therapeutic process to facilitate access. Despite these efforts, the children have refused to have any access with their father, even in a supervised therapeutic setting.
[23] Since the allegations were made on November 17, 2017, A.G. has not seen his father. M.G. saw his father on only two occasions. The first was on January 10, 2018. The second was July 9, 2018.
[24] The CAS worker, states in her affidavit, “From the Society’s perspective, the children remain mired in the middle of a prolonged custody/access dispute between their parents within which: (a) There are concerns that the mother’s own relentless and persistently negative opinion of the children’s father has contributed to the alienation of the children from their father, and prevented access from occurring; and (b) Where the children are rejecting of their father, have a damaged relationship with him, and where there are sexual abuse allegations made by [A.G.], which have been deemed by the Society as inconclusive, but which are concerning given the father’s history of intrusive sexualized thoughts and actions; and (c) Where the children and their father were previously involved in extensive reunification work once already and the children are refusing to participate in such work again.”
Request for the appointment of the Office of the Children’s Lawyer
[25] At the motion heard before me on January 11, 2018, the Society requested an order that the Office of the Children’s Lawyer (“OCL”) be appointed to represent the children. The argument made then, and now, is that the children are adolescents and need to have a voice. I declined the appointment of the OCL on January 11, 2018 for the following reasons: [46] In my view, the OCL is unnecessary to adequately determine the views and preferences of the children. The children have been extremely vocal about never wanting to see their father again. They have been extremely vocal about their alignment with their mother. [47] Representation of the children in the proceeding would exacerbate a situation where the children are far too empowered, far too engaged and far too impacted by the conflict and potential alienation evidenced in the proceeding. Ultimately their position will be of little assistance to the court if their views and preferences stem from the mother’s interference in their relationship with their father. [48] Further, representation at this stage could potentially delay the ongoing investigation, and would certainly delay the implementation of an access regime. [These reasons were previously stated in CAS v. L.M. et al, 2018 ONSC 382, at paras. 46-48].
[26] Section 78 of the CYFSA states:
Legal Representation
Legal representation of child 78 (1) A child may have legal representation at any stage in a proceeding under this Part.
Court to consider issue (2) Where a child does not have legal representation in a proceeding under this Part, the court, (a) shall, as soon as practicable after the commencement of the proceeding; and (b) may, at any later stage in the proceeding, determine whether legal representation is desirable to protect the child’s interests.
Direction for legal representation (3) Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child.
Criteria (4) Where, (a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be placed in interim or extended society care under paragraph 2 or 3 of subsection 101 (1) ; (b) the child is in the society’s care and, (i) no parent appears before the court, or (ii) it is alleged that the child is in need of protection within the meaning of clause 74 (2) (a), (c), (f), (g) or (j); or (c) the child is not permitted to be present at the hearing, legal representation is deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes, given due weight in accordance with the child’s age and maturity, that the child’s interests are otherwise adequately protected.
Where parent a minor (5) Where a child’s parent is younger than 18, the Children’s Lawyer shall represent the parent in a proceeding under this Part unless the court orders otherwise.
Is legal representation desirable to protect the child’s interests?
[27] Many aspects of the situation remain unchanged since the order made on January 11, 2018. The children have refused to see their father in a therapeutic setting with their reunification counsellor. They have not followed the terms of the court order.
[28] Justice Fryer found evidence of alienation. She states in her decision: [184] The Father asserts that the Mother cannot participate in the repair of his relationship with the children. The history relayed to me through the evidence at trial would suggest that this might be true. However, the optimal remedy is one in which the children know their Mother is prepared to support. The court heard many hours of evidence about the Mother’s ambivalence about the boys’ relationship with their Father and the foundation for such ambivalence. The time for ambivalence is over. The boys are being negatively impacted not just by the conflict to which both parents have contributed but also by the Mother’s continued failure to permit–if not support–the children in having a relationship with the Father. [This finding was made in J.M.G. v. L.D.G., 2016 ONSC 3042, at para 184].
[29] The evidence before this court remains consistent with the findings of Justice Fryer. The children are well aligned with their mother. She accepts and justifies the children’s ambivalence towards their father. She describes the father in very unflattering terms including psychotic, a pathological liar, parental alienator, manipulator and abuser. The children are not shielded from her position. An example occurred on July 10, 2018 when the CAS worker was meeting with M.G. after his visit with his father and the mother entered the room. The CAS worker writes in her affidavit: [The mother] returned to the room where I was meeting with [M.G.]. [The mother] stated that since [M.G.] was older, he could not be forced to participate in access if he did not want to. She said that she felt that it would be extremely inappropriate for the Society to take the children out of their home to punish them for not wanting to be in the same room as their abuser. This concerned me as I was struck by the fact that she was, in my presence, agreeing with [M.G.’s] failure to ignore (sic) the judge’s order, in effect empowering him with her approval, referring to [the father] as an abuser when that had not been established, and characterizing the Society’s efforts to secure compliance with the Judge’s order as “extremely inappropriate” and as “punishment”. This heightened my concern about the nature of the discussions that occurred when no one was present to monitor what was being said.
[30] Further, the mother indicated to the CAS worker that she was proud of A.G. for standing up to his reunification therapist when he felt she wanted him to say that he would see his father.
[31] The mother has been unable or refuses to have the children participate in the reunification process. She states in her evidence, “I have been candid in acknowledging the difficulty that I face in having the children rebuild their relationship with their father. I have enlisted the help of my husband, my adult sons and my parents. I have sought out parenting strategies from professionals.”
[32] The mother describes the children as suffering from anxiety and panic symptoms when forced to see their father. Ms. Geraldo, the facilitator of reunification, described A.G. as very emotionally dysregulated when talking about contact with his father, crying when the topic was brought up. When speaking about reunification therapy, the mother stated that she will not use force to get the children to comply as that would be harmful for the children and not appropriate. Further, the mother stated to the CAS worker that she did not agree with the Society pushing the boys to attend reunification therapy with their father as it was detrimental to their mental health. She stated that the fact the children no longer wanted to see their father was actually healthier than experiencing traumatic bonding.
[33] Throughout, the mother has been insistent on OCL representation for the children. There is a letter from Justice for Children and Youth also advocating for representation. There is an affidavit sworn by M.G. requesting representation and justifying his refusal to see his father.
[34] It is hard to imagine, and I do not accept, that the mother actively encourages the children to attend the court ordered reunification therapy. What were the repercussions to the children for not following her direction, for not following the advice of her husband, her parents and her adult sons? What were the repercussions to the children for not following the court order? The absence of this information suggests that there were no consequences and that the mother permitted them to make the decision not to participate which aligns perfectly with her position.
[35] The mother describes Justice Fryer as grossly biased. She accuses the CAS of dismissing her safety concerns and letting the father ‘get away with it’. She described the CAS worker and the reunification counsellor as having a position that was skewed in favour of the father. Other professionals are dismissed by the mother if there is any disagreement with the mother’s approach including Dr. Fidler and Dr. Hurwitz.
[36] The mother’s extended family have been sending email correspondence to the Society taking exception to the Society’s position and actions and alleging in very strong language that the Society’s proposed actions are inappropriate.
[37] Child representation in a case with, potentially, this level of parental alienation does not, in any way, protect a child’s interests. These children have been the unwilling participants in a battle that has been going on for many years. They have seen numerous doctors and counsellors (including reunification counselling twice), CAS social workers, and a parenting coordinator to name a few. They are already too empowered and far too engaged in this process. The empowerment extends to and includes choosing not to follow the recommendations of the CAS and not following the court order.
[38] The children are far too impacted by the conflict and potential alienation evidenced in the proceeding. They are experiencing medical issues including panic attacks and anxiety. Appointing the OCL would further empower and involve the children. It would also reward them for not following a court order. Their views and preferences, as influenced as they may be, are well known.
[39] I accept that the CYFSA has, as one objective, the participation of children. However, the paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children. For all of these reasons I decline to order the appointment of the OCL to represent the children at this time.
Sexual Behaviours Assessment
[40] The Society is seeking an order that the father participate in a sexual behaviours assessment. It is noteworthy that the allegation made by A.G. is that his father hugged him in a sexual way. He states that this occurred a few times over the course of 2017. The allegations were made to the police and no charges were filed.
[41] In determining whether to order the sexual behaviours assessment of the father I am guided by section 98(2) of the CYFSA.
[42] Section 98(2) of the CYFSA states:
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.
[43] The use of the word ‘may’ suggests the court has discretion to order or to not order an assessment even if the two criteria are satisfied.
Is the sexual behaviours assessment necessary to make a determination under Part V of the CYFSA?
[44] The onus of satisfying the court that the assessment is necessary falls on the shoulders of the party requesting the order. In this case, the onus is on the Society.
[45] In their notice of motion the Society requests an order that the father complete a sexual behaviours assessment, to include phallometric testing, if deemed advisable by the assessor.
[46] The Society’s investigation into the allegations made by A.G. was inconclusive. The Society noted that the allegations were not spontaneous as they were prompted by the mother’s question and the allegations occurred following the mother’s recent (and second) attempt to obtain a court order permitting her to move with the children to Arizona. When considering the backdrop which includes both the possibility of alienation and the background of the father’s sexual issues, the Society, in terms of the investigation, has not made a determination if A.G.’s allegations represent any real risk. The Society, in oral argument, stated that the results of a sexual behaviours assessment would “tip in favour of” or “against” a determination of whether the children are in need of protection from the father.
[47] The mother supports the Society’s request.
[48] The father opposes the testing. He states that it is intrusive, unnecessary and the results are questionable. Further, he states that the mother has shared sensitive information in the past and he believes that she will do so again. He is a doctor and works with children. He is concerned about his privacy and his career. The mother stated that even if the results were in the father’s favor she would not accept them as he may be able to manipulate the results.
[49] The use of the term ‘necessary’ in section 98 of the CYFSA means that the assessment must be something more than helpful, more than desirous.
[50] When the Society commenced the Protection Application, they desired an opportunity to see the interaction between the children and their father as part of their investigation of the allegation and to make a determination if the children were in need of protection. This did not happen. The mother refused or was unable to have the children attend the therapeutic reunification process.
[51] Currently, the Society is of the view that risk of harm to the children may exist independent of a determination of the risk of sexual abuse. More specifically, the CAS worker stated: The Society had also made it clear to [the mother] on other occasions that the Society worker’s, if they were to be called upon to offer an opinion on the sexual abuse allegations and their veracity, in the context of a situation where there had already been negative findings about [the mother’s] activities, and where the court had already called seriously into question the legitimacy of the children’s complaints against their father and had imposed a therapeutic regime designed to address these issues, it was imperative for the Society’s workers to see the children engaging with their father (and vice versa). The Society continued to believe that if there was some deep-seated or ‘real’ reason why the children were not prepared to have contact with their father (as opposed to the exaggerated or manipulated responses that are often the hallmark of cases where there is alienation or parental influence) then a therapeutic process designed to explore the re-building of the relationship and any impediments to that was of significant importance.
[52] The Protection Application requests multiple findings that the children are in need of protection. Apart from the allegation of sexual abuse, the Society requests an order that the children are likely to suffer emotional harm as a result of the emotional impact on these children of the continuing conflict between the parents. Accordingly, the information that is to be gleaned from a sexual behaviours assessment is not necessary to make a finding that the children are in need of protection as other grounds exist.
Is the sexual behaviours assessment necessary to make a finding that the children are at risk of sexual abuse in the care of their father?
[53] I do not think so. The Society has requested a sexual risk behaviours assessment, to include phallometric testing if deemed desirable by the assessor. Phallometric testing is extremely intrusive. It is not the type of testing that should occur unless it is necessary. The framing of the relief itself certainly suggests it may not be necessary. The court, and not the assessor, must decide if phallometric testing, as part of a sexual behaviours assessment, should occur. That is what the legislation provides.
[54] Further, the allegations in this case, in my estimation, do not cry out for a sexual behaviours assessment. The allegation is that the father hugged A.G. in an inappropriate way. The allegation, as described, could very well have been innocent but misinterpreted. There are no other ‘victims’. The police did not lay charges. The Society found only certain elements of the allegations to be credible. I do not see a sexual behaviours assessment as necessary. Perhaps it is desirous, perhaps it would be helpful, but it is not necessary.
Is a sexual behaviours assessment necessary to make any other determination under Part V of the CYFSA?
[55] There are many determinations that the court may be asked to make under Part V. At this point in time, the court is not being asked to make an order with respect to access. That order was argued and made in January 2018.
[56] The Society brought a motion to bring A.G. into care. It was adjourned. The Society has not yet amended their Protection Application to align with the relief set out in their motion. Although the Society intends to amend the Protection Application, their concern with the current placement, with the mother, has everything to do with alienation and nothing to do with the allegations of possible sexual harm.
[57] Accordingly, and for the reasons outlined the request for a sexual behaviours assessment is denied.
Order
[58] The applicant’s request that independent legal counsel be appointed to represent the children, A.G. and M.G. is dismissed; and
[59] The applicant’s request that the father submit to a sexual behaviours assessment is dismissed.