Court File and Parties

Court File No.: FC-14-421-02 Date: 2021-03-08 Ontario Superior Court of Justice

Between: J.R., Applicant And: W.M., Respondent

Counsel: Heather Garfinkel, for the Applicant Ash Keyvani, for the Respondent

Heard: March 4, 2021

Ruling on Motion

McDERMOT J.

Background

1The Applicant Mother, J.R., and the Respondent Father, W.M., are the biological parents of two children, D. who is 7 and R. who is 3. The Applicant is also the mother of a 15-year-old daughter, M. who lives with her and, until recently, the father had custody of his 13-year-old daughter, N.

2These parties had an on again, off again relationship which began in 2013 and finally ended in July, 2019. When they separated, W.M. left with N.; M., D. and R. remained in the care of J.R..

3On May 12, 2020, M. went to the father’s home for a sleepover with N. W.M. is alleged to have plied N. and M. with alcohol; M. says that after N. went to sleep, she was sexually assaulted by W.M. When W.M. went to sleep, M. called 911 and the police arrested him. The allegations were serious enough that a rape kit was performed at Soldiers Memorial Hospital. W.M. was charged with sexual assault, sexual interference and invitation to sexual touching.

4As might be expected, Simcoe Muskoka Child, Youth and Family Services became involved. They have conducted an investigation and have verified M.’s claims.

5W.M. has been released on bail. His daughter, N., was taken out of his care and for some time was with the Applicant, and then N.’s biological mother. J.R. began proceedings and brought a motion without notice to suspend W.M.’s contact, not only with M., but also with his sons, D. and R.. On June 3, 2020, on a motion brought by the Applicant without notice, Wildman J. made a temporary order placing all four children in the care of J.R. The order stated that the Respondent would have no access to any of the children. Although N. eventually went to live with her mother, the other three children remain with the Applicant. Because of this order, W.M. has not seen his sons in more than 10 months.

6It is to be noted that the Respondent’s bail conditions only prevent him from having contact “with females under the age of 16 years”. These bail conditions, notwithstanding statements to the contrary by the C.A.S. ¹ do not prevent contact between the Respondent and his sons.

7W.M. now brings a motion for a contact order for his two sons. He requests virtual contact supervised by a private agency or by the Simcoe Muskoka Supervised Access Centre.

8Because this is really the first review of an order made without notice, counsel agreed that no change in circumstances was necessary to vary Justice Wildman’s no-contact order. The issue of contact is therefore based solely upon the best interests of the children.

Determination

Determination

9For the reasons set out below, I have dismissed the Respondent’s motion for contact with the children without prejudice to it being brought back before the court upon the completion of a risk assessment as requested by the C.A.S. or the results of involvement of the Office of the Children’s Lawyer.

Analysis

Analysis

10A contact order between W.M. and the children is based upon the best interests of the children: see s. 24(1) of the Children’s Law Reform Act ² (the CLRA). Those best interests are governed by s. 24(3) of the CLRA. Important in this case, as we are addressing temporary contact between the father and his children, are ss. 24(3)(a) and (b), which focus on the children’s needs and their relationships with each parent.

11Also important are issues of family violence. The CLRA was recently amended to parallel the parenting provisions of the Divorce Act ³, which emphasize domestic violence and abuse as an issue to be taken into account in determining best interests. Although domestic violence has been, for a lengthy period of time, a factor in determining best interests under Provincial legislation, it has been nuanced and further defined by the recent amendments to the CLRA. In s. 24(4) of the CLRA, the court is instructed to take the following factors into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

12There is little doubt that the allegations made by M. would qualify as family violence under the CLRA if those allegations are proven. Sexual assault can be characterized as nothing other than a violent act involving power and control over the victim.

13In considering best interests, the court has to recall as well that there is more at stake than the two children who the Respondent seeks to have contact. There is a third child, M., who has made serious allegations against the Respondent. Notwithstanding W.M.’s suggestion that M. is not a “child of this proceeding” ⁴, her relationship and her connection with her siblings as well as her own well-being are all directly affected by the court’s decision in this matter and the court specifically finds that M.’s best interests are also in issue in the determination of the issues in this motion. That is supported by s. 24(4)(c) which permits the court to consider “indirect” threats of violence, and by s. 24(4)(f) which requires consideration of “whether the family violence causes the child or other family member to fear for their own safety or for that of another person ”.

14Finally, the Respondent says that he is presumed innocent until proven guilty, and I cannot make a finding that he committed the acts in question on the evidence that is before me. I agree that I am not in a position to make a finding as to whether the offence took place considering the conflicting affidavit evidence. However, the Children’s Aid Society has come to a conclusion and made its own findings of sexual abuse by the Respondent. And the allegations themselves have some heft as they clearly come directly from M.; she was the one who called 911 during the visit with the Respondent immediately after the alleged abuse; she did not contact the police after going home to her mother. The allegations are corroborated to some extent by the fact that the C.A.S. has interviewed M. and the parties and has verified the allegations. The Respondent says very little about the actual allegations in his affidavit but that is understandable as he is facing serious charges in this matter, and cannot prejudice his criminal proceedings. However, although it is difficult for the court to make any finding as to M.’s allegations, the court has to examine the situation from the perspective of “what if” the allegations are true and the potential strength of the allegations. And the unproven allegations themselves are an important factor in the children’s best interests at this point in time as M. has made these allegations and is an important member of the mother’s household along with D. and R.

15The Respondent Father has requested very limited access. He wants two virtual visits of two hours per week, supervised by a professional agency. At first glimpse, it is difficult to understand how he could cause risk to D. and R. assuming he is prevented from saying anything controversial.

16Considering s. 24(3)(b) of the CLRA, it is also not in serious issue that the Respondent had a good relationship with his sons, and, until May 21, 2020, he had regular and consistent weekend access to them. Without more, it is presumed that it would be in these children’s best interests that they have contact with their father whom they had seen regularly prior to the allegations being made, and that these two children have suffered a serious loss by no longer seeing their father. Although there was evidence that the eldest child does not ask to see his father, children live in the moment, and it is not surprising that this young boy is not longing to see someone who is now becoming a memory at best. The views and preferences of a 7-year-old child are important but not conclusive as to the best interests of that child, and there was no detail as to whether he was specifically asked if he wanted to see his father.

17Lined up against W.M.’s request is Simcoe Muskoka Child, Youth and Family Services. They have provided 6 different letters which have been placed before the court by both parties. In those letters, they say that they have verified the risk of harm to M. from the Applicant and that her allegations are true. To the “innocent until proven guilty” defence, they note that “even if W.M.’s criminal charges were all dismissed, the society has still verified sexual abuse and as such has a firm position regarding access.” ⁵ In another letter, the Society states that “even if W.M.’s criminal charges are withdrawn, or he is found not guilty, the Society believes the incident took place and that W.M. sexually abused a child that was in his care.” ⁶

18That position is clear: these two boys should have no access their father until he produces a risk assessment and if contact is ordered prior to completion of the assessment, that may “prompt the Society to initiate a protection application.” ⁷ The rationale behind that position is set out in detail in correspondence from the child protection worker dated February 11, 2021:

I disagree that any potential harm to [M.] resulting from [W.M].'s access to [D.] and [R.] could be easily mitigated by the virtual access simply being in a separate room. The risk of emotional harm to [M.], who is the also a child/victim/witness to the criminal proceedings against [W.M.] is unavoidable if her brothers start having virtual access with the person that allegedly sexually abused her. The children are young and will subsequently talk about their calls and conversations with their dad in their home environment, leading to the emotional harm and confusion for [M.].

[D.] and [R.] are currently unaware of the specifics around [W.M.]'s maltreatment and alleged sexual abuse of their sister. As you may be aware, [M.] has special needs and is cognitively delayed, and therefore has additional vulnerability as a result of those needs. Allowing the boys virtual contact with [W.M.] and the subsequent talk about this that will occur by the boys in the home will not only result in emotional harm for [M.], but it may also lead to [M.] feeling betrayed, and there is potential that she could share the details of her sexual assault with the boys as a result, leading to emotional harm for the boys as well. ⁸

19Mr. Keyvani objected to the court accepting these letters as evidence in this proceeding because they constitute hearsay evidence. ⁹ However, hearsay evidence is permitted under Rule 14(19) so long as the source of that information is properly before the court (which it is in this case). And the letters are direct (if unsworn) evidence of the position of the Society regarding access as opposed to the hearsay evidence that may be contained in the letter upon which the Society relies. For example, the suggestion that M. is special needs is hearsay evidence; the position of the Society resulting from that allegation is not.

20Although the affidavits are lengthy, there is very little evidence outside of the position of the Society regarding the sexual abuse allegations or, indeed, the children themselves. Both parties concentrate on perceived defects of the other which is largely irrelevant as to whether access by the Respondent to the boys is in their best interests as well as the best interests of M.. There is very little evidence beyond the position of the C.A.S. as to the best interests of the children.

21The Respondent has provided case law which says that the Society position is not determinative as to access. These cases set the Society concerns of harm to the children from the abuser as against the other forgotten factor as to best interests set out in s. 24(3)(b), which requires the court to consider the relationship between the Respondent and the boys, and the damage that the father’s lengthy absence from his boy’s lives may incur: it may take between one year and 18 months to come to resolve the criminal proceedings and the Society concerns in these family law proceedings.

22That balancing act was considered in Children’s Aid Society of Toronto v. O.N. which was a child protection case where the father was alleged to have sexually abused his young daughter. The daughter wanted to see her father notwithstanding the abuse, but the Society took the position that access should only take place in a therapeutic setting. Spence J. said that the “possibility of harm” was not sufficient to deprive the father of access for a lengthy period of time:

In the event of an acquittal at trial, the society would logically argue - consistent with the society's submissions on this motion - that no access ought to occur until the outcome of the protection application. That would result in there being no contact between father and T.N. for a period of approximately 1 ½ to 2 years, possibly longer (apart from the two-hour visit in October, 2002). This clearly poses a problem, particularly if the ultimate conclusion is that father is found not to have committed the alleged abuse. The "well being" of a child who has been living with a parent prior to society intervention and apprehension requires that the child have as much contact with her parent as possible - assuming there is no basis for the apprehension. Therefore, by acceding to the society's position, I run the risk of making an order that is inconsistent with T.N. 's well being, if it subsequently transpires that the father did not commit the alleged abuse.

23Even if the father were convicted in the end, Justice Spence also stated that the situation did not warrant a “no access” order when “the mere possibility of harm is not sufficient to discharge the society's burden of proof discussed above.”

24This case involved a child that was apparently more vulnerable than in the present case as the proposed access was to a child who was the victim of the abuse, not the siblings to the child as in the present case.

25However, there has been a sea change in the emphasis on domestic violence and abuse in the 17 years that have passed since that decision. These changes are now reflected in the recent amendments to the Divorce Act and the CLRA as reflected in s. 24(3) above. The decision of Spence J. was under Child and Family Services Act ¹⁰ which did not, at that time, have any reference to domestic violence concerning best interests and the threats that this results in to children of a relationship. ¹¹ The “possibility of harm” that was discounted by Spence J. is now of greater importance because of s. 24(4) of the CLRA.

26As well, that case is distinguishable because, unlike the present case, the father in O.N. had undergone an assessment with a psychologist, who testified at the motion and was cross examined by counsel. That psychologist testified only that it was “possible” that access would harm the child even if the access took place and the father had committed the alleged abuse. The psychologist also gave evidence that the child who had reported the abuse wanted the access. The psychologist concluded that access should only be in a therapeutic setting to address the abuse, something the court eventually disagreed with in ordering supervised access.

27In the present case, the Respondent has refused to undergo any sort of assessment. The Society has stated that they will not agree to any access until the Respondent has undergone a risk assessment. W.M. refuses to do so. He says he cannot afford the risk assessment and that it would prejudice his criminal case. He does not give the basis for the allegation that it would affect his criminal case or state that his criminal lawyer has advised him not to participate; he merely says through his lawyer that “there is no guarantee that such an assessment would not be prejudicial to [W.M.]'s criminal matter” and that he cannot afford the risk assessment. ¹² During argument, Mr. Keyvani suggested that the fact that the Respondent agreed to do it may constitute an admission of guilt, but that makes no sense when he is being asked to do so solely for the purpose of arranging access to his children. I do not believe that the results of the assessment would be compellable evidence in the criminal proceedings although that would be a question to be answered by the Respondent’s criminal counsel. The Society has responded to W.M.’s costs issues by advising as to resources which indicate that the assessment may cost as little as $2,500, certainly less than the cost of preparing for and arguing this motion. In short, the cost of the assessment would not be excessive, and I have been supplied with little rationale as to how the risk assessment would be prejudicial to the Respondent’s criminal case.

28As a result, in O.N. Spence J. was better informed of the risks of access, and had the benefit of expert evidence at the hearing of the motion. I have none of that.

29In S.M. v. N.J.M.T., 2017 ONSC 5399, the father pleaded guilty to charges of sexual interference regarding his 5 year old daughter. Summer J. found it to be in the best interests of the child that he have access to the daughter, supervised by his mother.

30Again, this case is dissimilar to the present case. The real issue during argument was who the supervisor would be. As well, the father was going to be incarcerated and prior to the event had had shared care of the child and joint custody of her. The child had a close and extensive history with the father. The purpose of the order was to give the child some limited contact with her father prior to what would be a lengthy period of incarceration.

31These cases cited by the Respondent are also distinguishable on an important point. They all involve the victim of the purported sexual abuse and do not consider the collateral damage caused by siblings having access to the abuser. The point made by the Society worker is that there is a risk of serious harm to the alleged victim of the abuse by access between her siblings and the purported abuser.

32W.M. does not even acknowledge this to be the case. He does not appear to think that M.’s best interests even matter when he says, “I do not agree that [M.] is a child of this proceeding. I am neither seeking custody nor access with her.” ¹³ Yet the OCL report that the Respondent relies upon (which recommended that N. reside with her mother) acknowledges how important sibling and household dynamics are when the investigator spoke of the discomfort that N. had in living in the same household as the step sibling who has accused her father of sexual abuse:

Sharing a room with [M.] has been really awful. [N.] advised [M.] has not talked about what happened but it has been very uncomfortable for [N.] to be there. ¹⁴

33Later, in her conclusions, the investigator states:

It is not believed by this clinician that it would be in [N.]'s best interest to reside with [J.R.] due to the presence of [M.] in the home who is the victim of the alleged sexual assault by [W.M.]. This would place [N.] back in a very awkward position. ¹⁵

34It would be similarly difficult for M. to address issues arising from her step siblings speaking with and discussing issues with the person she alleges to be her abuser. The C.A.S. worker says that this would be seen by her as a betrayal and I agree. And there is nothing which can prevent D. from discussing his contact with W.M. with M. which may cause further trauma to M. and, as suggested by the worker, to D. as well. Mr. Keyvani suggests that this risk can be mitigated by a frank discussion between J.R. and the children, but she cannot be expected to monitor all of her children’s conversations and there is no guarantee that a discussion with the children will prevent sibling discussions about the contact. I find that the Society concerns for the children, and especially M., are well founded should access be ordered.

35In the Toronto v. O.N. case, one factor that the court took into account is that there was going to be a lengthy period of time where the father did not have access pending resolution of the criminal charges. That is also not necessarily the case here. The father has the option of obtaining the risk assessment at which point in time either the C.A.S. or the court could review the issue of contact. As well, the parties have already agreed to an order for OCL involvement, another event which might allow for a review of the order. Solutions to the contact problem may very well arise in the coming months which may allow for a review of any contact issues ordered today.

36The C.A.S. has said that ordering access may “prompt” protection proceedings. I do not think anyone wants that ¹⁶ as this would result in these proceedings and any orders made in these proceedings being stayed pursuant to s. 103 of the Child, Youth and Family Services Act ¹⁷. And the parties would obviously lose their control over these proceedings as the Society would be involved and would implement its own solutions and terms of supervision onto the parties.

37I do not believe that the Society should be permitted to hold these proceedings hostage in order to have their own way regarding access. However, I take into account that an access order may result in all of this being a waste of time resultant from the commencement of protection proceedings.

38For all of these reasons, I believe that contact between the Respondent and D. and R. would not be the best interests of these three children at present.

Conclusion

39I therefore dismiss the Respondent’s motion without prejudice to it being renewed upon the completion of a risk assessment in respect of the Respondent, as well as the results of any involvement of the Office of the Children’s Lawyer. The risk assessment should take into account any harm which might be done through access not only to D. and R. but also to M.

40I am not seized with any subsequent motion regarding contact to the children.

Costs

41The Applicant has been successful and she would normally be entitled to costs. I am going to permit arguments on both entitlement to costs as well as quantum as the issues in this motion were difficult and based upon serious allegations against the Respondent. The parties may provide submissions as to costs on a ten-day turnaround, firstly submissions of the Applicant and then the Respondent to be submitted to the judicial assistant. Costs submissions to be no more than three pages in length not including Bills of Costs and Offers to Settle.

Footnotes

1. 1See correspondence dated June 2 and July 22, 2020 attached as Ex. C to the affidavit of the Applicant sworn February 28, 2021.
2. 2R.S.O. 1990, c. C.12
3. 3R.S.C. 1985 c. 3 (2 nd Supp.)
4. 4Affidavit of the Respondent sworn March 1, 2021, para. 24
5. 5Correspondence dated August 11, 2020 from C.A.S. child protection worker Krystle Horan attached as Ex. C to the affidavit of the Applicant sworn February 28, 2021.
6. 6Correspondence dated December 18, 2020 from Krystle Horan attached as Ex. C to the affidavit of the Respondent sworn February 22, 2021.
7. 7Correspondence dated January 28, 2021 from Krystle Horan attached as Ex. F to the affidavit of the Respondent, Ibid.
8. 8Correspondence dated February 11, 2021 from Krystle Horan, Ibid.
9. 9Even though the Respondent proffered three of those letters as exhibits to his own affidavit sworn February 22, 2021.
10. 10R.S.O. 1990, c. C.11 . Now repealed by S.O. 2017, c. 14 .
11. 11Even today, s. 74(3) of the Child, Youth and Family Services Act does not examine domestic violence in detail as a best interests factor, although it might be argued that to suggest that domestic violence is not a factor in child protection proceedings is logically inconsistent. Those proceedings would have to concentrate on the risk of harm which led to the proceedings being commenced including domestic violence.
12. 12Correspondence from Mr. Keyvani to the Society counsel dated February 3, 2020 attached as Ex. G to the Respondent’s affidavit sworn February 22, 2020.
13. 13Affidavit of the Respondent sworn March 1, 2021, para. 24.
14. 14OCL Report of Linda Bleau, p. 9
15. 15Ibid., pg. 11
16. 16Although surprisingly Mr. Keyvani suggested during argument that it might be beneficial for the C.A.S. to put its money where its mouth is and commence proceedings. I cannot see how that would be in anyone’s best interests and it is, in my view, to be avoided if at all possible.
17. 17S.O. 2017, c. 14 .