SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-20-18038

DATE: 2021/01/12

RE: H.A.M., Applicant

AND:

M.R., Respondent

BEFORE: M.G. Ellies R.S.J.

COUNSEL: Glen A. Cook, for the Applicant

Kerry K. Gearin, for the Respondent

HEARD: January 5, 2021 (via Zoom)

ENDORSEMENT

[1] The applicant and the respondent were married in October 2012. They separated on May 24, 2020. They have two daughters. The oldest is six years old, the youngest just turned five.

[2] The parties separated while they were staying with the respondent mother’s family for the last days of Ramadan. According to the mother, her own mother ordered the applicant father to leave because of a piece of paper found in the father’s Quran that indicated he was practicing black magic. The mother has been residing there with the children since then. The father returned to Brampton, where the parties were residing before they separated. He has not seen the children since they separated.

[3] The mother now alleges that the father sexually touched the children. The father vehemently denies it. A consent order was made at an earlier case conference requiring the father to pay child support and that the matrimonial home be listed for sale.

[4] There are two motions before me. In one, the father requests an order for access, to be exercised first “in the community” during the day and then progressing to overnight access on the weekends. He also seeks an order requesting that the Office of the Children’s Lawyer (the “OCL”) become involved. The mother opposes both requests.

[5] In her motion, the mother seeks an order for temporary custody, counselling for the children, a report on the child’s wishes under s. 30 of the Children’s Law Reform Act (the “CLRA”), and permission to file materials beyond the normal size restrictions, among other things.

[6] At the outset of the hearing, I requested the lawyers’ submissions on the issues, so that I might determine the order in which they should be addressed. Counsel for the mother submitted that I should not yet make any determination about the truth of the sexual assault allegations. Instead, she submits, I should grant the mother’s request to have the children counselled and interviewed by a professional social worker whom she has identified, to get the children’s views. She also submits that I should grant the mother’s request to allow her to obtain and file unredacted copies of Children’s Aid Society (“CAS”) notes and videos of police interviews generated in connection with the mother’s allegations of sexual abuse by the father. Only once I have all of this, she submits, should I go on to consider the truthfulness of the mother’s accusations against the father. In the meanwhile, the father should have no access. Counsel reminded me several times of my duty to put the children’s best interests first.

[7] I agree with the submission that the children’s best interests come first. However, I disagree with the submission that putting those interests first requires that I delay dealing with the sexual assault allegations. The mother’s request entails delay, if not indefinite delay, in allowing the children to have access with their father. In my view, therefore, it is critical that I determine whether there might be some truth to the allegations so as to justify the delay.

[8] I am not satisfied that there is any truth to the allegations. There are five main reasons for this.

Timing of the Allegations

[9] The first is the timing of the mother’s allegations, arising as they did after the parties separated.

[10] It is clear from the mother’s supporting affidavit that she was unhappy in the marriage for quite a while before she told the police and the CAS that her children had been sexually abused. The parties were married based on an arrangement made between their parents. According to the father, the parties never met one another until after they were married. The mother sponsored the father to allow him to come to Canada from Pakistan, which he did about two and one-half years after the marriage.

[11] According to the mother, things did not go well from the start. She alleges that the father was controlling, unreasonably jealous, impatient, unhelpful, unloving, and both physically and emotionally abusive of the entire family. Clearly, then, at the time that the mother made the allegations of disclosure by the children, there were reasons other than the alleged sexual abuse for which the mother might want to separate.

Context in Which the Disclosure is Alleged to Have Been Made

[12] The mother deposes that, while they were at her parents’ house in May 2020, she “played the truth game” with the children, asking them if they have any secrets. She deposes that the girls told her that “baba” (meaning their father) would massage them “on every part” of their body when she was not home. However, the mother does not explain why she was playing a game in which she was asking about secrets. There is no evidence of context that might make this evidence more believable.

[13] The mother deposes that the older child told her that the father touched both children in the genital area. There is no evidence to explain how the child would know about the touching of her sister.

[14] Nor does the mother give any further evidence about what the child said. One would think that, if such a disclosure had been made, the mother would have continued to ask questions to determine where, when, and how this could have happened to both children under her watch. This is especially so given the mother’s evidence that the children had reported abuse more than a year earlier and that she had taken steps to ensure it did not happen again, as I will get to now.

Contradictory Evidence About Earlier Disclosure

[15] The mother deposes that the abuse was happening for more than a year before she reported it. She says that she saw their three-year-old daughter rubbing her vagina through her clothes one day in February 2019 and that, when she asked her why she was doing that, the child said this is what baba does. The mother says she immediately called the father at work to tell him what the child had said, that he was upset, and that, when he got home, she confronted him about it. She deposes that he admitted that he did rub his daughter’s vagina because it was “normal in his culture” and that he promised not to do it again. The father adamantly denies that any of this happened.

[16] The mother’s evidence about the 2019 disclosure contradicts what she told the CAS about it. The CAS notes (p. 22 of 55) state that she told the worker that the father denied altogether touching the children when she confronted him about it, not that he admitted it and said it was a cultural thing. This is a significant contradiction, in my opinion.

Lack of Opportunity

[17] The mother’s evidence that her three-year-old daughter disclosed sexual touching in 2019 is also at odds with her evidence that the father rarely had much to do with the children and that she is a doting and careful caregiver. The mother deposes that the father only “occasionally played with our children but was typically impatient.” She deposes that the father refused even to drive the eldest child to school, so she began home schooling her. The mother also says that the father refused to drive her to university when he was not working. Based on the mother’s evidence, there was little to no opportunity for the sexual abuse to have occurred prior to February 2019 because the father was seldom, if ever, alone with the children.

[18] That is even more true with respect to the 2020 allegations. The mother deposes that, after the 2019 disclosure, she “tried to stay close to [the] children, as there were other signs that the [father] may have been sexually interested in our girls.” She deposes that she even began sleeping with them and that the reason she wanted to spend the last days of Ramadan at her parents’ home was because she “knew she had to protect [her] daughters”. Based on this evidence, there was no opportunity for sexual touching to occur after the 2019 disclosure.

Contents of the First Police Interview

[19] Perhaps the most important reason for rejecting the mother’s submission that access to the father should be delayed any further is what happened after the alleged 2020 disclosure.

[20] Because the family was ordinarily resident in Brampton, the allegations had to be investigated by Peel authorities. Both the police and the CAS became involved. The children were interviewed by the Special Victims Unit of the Peel police. According to both the name of the unit and the father’s evidence, the investigators in this unit are trained to deal with alleged victims of sexual assault. Neither of the children made any allegations of sexual improprieties on the part of the father during the interview. A note in the police file dated May 29, 2020 states that the case was closed “pending further information from the complainant [the mother]”.

[21] The mother urges me to allow her to file a video of the interviews before deciding on the potential truthfulness of the allegations. I do not believe I need to do that. She has included what I presume to be all of the excerpts most helpful to her case in her affidavit. None of them persuade me that the interviewer simply failed to ask the right questions. Indeed, I am persuaded that the interviewer was careful not to ask leading questions when it came to crucial information such as where the father touched them.

[22] The CAS also did their own investigation. The father has appended a copy of the CAS file to his affidavit. Parts of it are redacted. The mother also obtained a copy, but that copy was not filed in time for the motion. Apparently, different parts of that file are redacted. According to counsel, the difference in redaction is explained by the identity of the party requesting a copy. For privacy sake, parts relating to the other party are redacted. Nonetheless, the unredacted parts of the CAS file that have made it into the court file are sufficient to understand what happened here.

[23] No one from the CAS attended the first police interview. The CAS notes simply indicate that the interviewing officer reported to the CAS worker that the children told him the father massages them on their feet, legs, arms, back, and shoulder, but “made no allegation of sexual abuse”. However, a CAS employee did attend a second police interview, to which I will turn now.

Evidence of Coaching

[24] The mother was not happy with the results of the police investigation. After that interview, she spoke with the CAS worker and told her that the children simply did not understand what the police officer meant by “private parts”, as the excerpt contained in the mother’s affidavit shows. The CAS worker conducted a “virtual” interview with the children and reported that, indeed, this time, the oldest child did say that her father touches her “pee and poop” areas. That interview, however, was conducted after the first police interview and, I have concluded, after the mother coached the children on what to say.

[25] The mother insisted that the children be interviewed a second time by the police. The second interview took place on June 8, 2020. It was conducted by the same officer. This time, however, the CAS worker was in attendance. Both the police notes and those of the worker disclose significant evidence of coaching on the part of the mother.

[26] The father’s affidavit sets out the following excerpt from the police report:

Q. How do you know that Baba touched your head?

A. I remember.

Q. How do you know that Baba touched your back?

A. I remember.

Q. How do you know that Baba touched your pee?

A. Moma told me.

Q. How do you know that Baba touched your poo?

A. Mom told me.

Q. How do you know that Baba touched your legs.

A. I remember.

[27] The police report also noted that the oldest daughter could not provide any details of the sexual touching and maintained that she was always fully clothed during the massages.

[28] The CAS worker’s notes state the following regarding the interview:

In [the oldest child’s] interview she stated that she remembered her father massaging her back, but in regard to father massaging her “pee and poo” area, she stated that she did not recall this and added that it was her mother who advised her to mention this to the constable.

[29] Neither the police nor the CAS have pursued the allegations any further.

Conclusion

[30] For the foregoing reasons, I am not persuaded that there is any truth to the mother’s allegations of sexual assault. Given my conclusion, it would be unfair to the father to require him to wait until the children have had counselling and a report has been prepared by a professional of the mother’s choosing before granting him access. It would also be contrary to the children’s best interests, which include having contact with their father.

[31] The father is willing to begin access in a supervised setting. I do not believe that is necessary to protect the children. It may also be difficult to implement due to the present COVID-19 “lockdown”. However, if possible, it may be advisable to have the access supervised for the father’s own protection from further unsubstantiated allegations of sexual assault. I leave that decision to him. The father has been cautioned by the CAS about the issues involved in giving the children massages of any type.

[32] Although the father has indicated that he is very flexible when it comes to access, I have little to no information from the mother as to the children’s schedules. The mother was interested only in preventing access, not in having it exercised when it is best for the children. For that reason, I will order that the father is entitled to reasonable access, supervised or unsupervised, on terms to be agreed upon by the parties within ten days. If an agreement has not been reached by then, the parties will appear again before me via Zoom at a time to be arranged through the trial coordinator’s office in Toronto. Further affidavits, limited to no more than five typewritten pages, exclusive of attachments, may be filed by each of the parties relating only to the terms of access. However, they must be named in accordance with the Supplementary Notice to the Profession and Litigants in Civil and Family Matters Including Electronic Filings and Document Sharing (Caselines Pilot) (https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/).

Additional Issues

[33] Given the circumstances of this case, involving as they do the possibility that the children’s wishes may be influenced by the mother, I agree that a third party should be involved to ascertain those wishes. However, I see no reason to require the parties to deplete the proceeds from the sale of their home for that purpose, as proposed by the mother. I certainly do not agree that she should be the one to choose the third party.

[34] Instead, I agree with the father that the OCL should be asked to get involved. Now that the father has been granted access, there is no rush to having the report prepared. Indeed, the father will need time to reconnect with the children to ensure that his interaction with them is normalized before the report is prepared. An order will issue requesting that the OCL become involved.

[35] I do agree with the mother that access to the court file and publication of these reasons should be restricted. This is permitted by s. 70 of the CLRA, which requires the court to consider:

(a) the nature and sensitivity of the information contained in the documents relating to the application that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

[36] In my view, these factors weigh in favour of such an order in this case. Because the order is not opposed by the father, I will not elaborate on my reasons. An order will issue:

(a) that access to the court file shall be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; and

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

[37] These reasons have been anonymized to permit their publication.

[38] A further order shall issue requiring the parties to sign consents to permit the release of the unredacted CAS file to counsel for the father, who shall ensure that a copy is provided to the mother at her reasonable expense, including one-half of the fees, if any, charged by the CAS for producing the file. Either party shall be at liberty to file a copy with the court, but only one copy may be filed. It must be appended to a one-page affidavit identifying the records.

[39] I do not believe it is necessary at this time to allow the parties to file the police video(s).

Costs

[40] The father was successful on the main issues, namely access and the involvement of the OCL. He did not oppose the mother’s other requests. He is entitled to his costs.

[41] During the hearing, I requested the parties’ submissions on costs by asking each of the lawyers what their clients would seek for costs if successful. Counsel for the father responded that his client would seek costs in the amount of $2,500 on a partial indemnity basis. I find this to be a very reasonable amount and I order that the mother pay this amount within 120 days.

M.G. Ellies R.S.J.

Date: January 12, 2020