Court File and Parties
COURT FILE NO.: F1019/16-1 DATE: January 28, 2021 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: K.C., applicant AND: E.D., respondent
BEFORE: MITROW J.
COUNSEL: Leonard G. Reich for the applicant Matthew Gianotti for the respondent
HEARD: November 20, 2020
ENDORSEMENT
INTRODUCTION
[1] Two motions were argued – one motion brought by each party.
[2] The applicant, K.C. (“the mother”), obtained a triage order allowing her to bring an urgent motion terminating the access of the respondent, E.D. (“the father”), or alternatively, providing for the father to have access to the child in the community supervised by the mother’s parents.
[3] The basis of the mother’s position was that the parties’ child, L., born in 2014, had made a disclosure alleging sexual abuse by the father.
[4] For his part, the father denied the allegations against him. He suggested that the mother may be suffering from a recurrence of mental health issues that she had approximately a decade ago and that the child’s alleged disclosure was in some way coached or orchestrated by the mother.
[5] The father brought his own motion seeking to return to the access specified in the existing final order, make-up access, a police assistance order, an order requiring the mother to undergo a mental health assessment and to provide medical reports, and an order finding the mother in contempt of court.
[6] For reasons that follow, the father’s access shall continue unsupervised and there shall be some limited overnight access, an order appointing the Office of the Children’s Lawyer (“OCL”) to represent the child is made and the balance of the relief sought in both motions is dismissed.
THE EXISTING FINAL ORDER
[7] On June 18, 2018, the court made a final order pursuant to minutes of settlement. That order contained a total of 39 paragraphs dealing with parenting and child support.
[8] Pursuant to the relevant parts of the final order, the parties have joint custody of the child and the father’s current regular parenting time is every Sunday from 10 a.m. until Monday morning drop-off at school.
[9] The final order also provided for additional access to include an overnight midweek visit and also a Saturday overnight visit, with the father to comply with the notice requirements to exercise the additional visits. It appears from the material filed that the father’s access consisted mainly of the weekend visits from 10 a.m. Sunday until Monday morning.
THE MOTHER’S ALLEGATIONS
[10] The mother’s evidence was that, starting in March 2020, that the child made statements to the mother describing odd behaviour by the father.
[11] The alleged declarations made by the child, as deposed to by the mother, had some rather bizarre overtones, alleging that the father woke the child in the middle of the night to show her lights in the sky, telling the child that the lights were aliens and then allegedly dragging the child by her feet into a closet and telling the child that she would be safe there from aliens. The child also made statements, according to the mother, that the father allegedly told the child that it was fun to kill animals and to kill people and that the child should kill her cat. The child further disclosed allegedly that she was told by the father that she had once killed a squirrel.
[12] The child also reported that she slept in her father’s bed.
[13] The mother deposed that after the visit on Father’s Day in June 2020, that the child had made disclosures that included allegations that the father was undressing her and taking pictures of her, that the father was looking at his cellphone observing naked people fighting and that the child saw her father’s private parts. There was also disclosure from the child that the father put Polysporin or baby oil in the child’s genital area and inside her. In addition, the child disclosed that her father gave her red and orange pills. The mother claimed that “sometimes” she has noticed that the child was lethargic after an access visit.
[14] The mother’s response after the Father’s Day access was to contact the police and also the Children's Aid Society of London and Middlesex (“the Society”). The mother deposes that she took the child to the hospital to be examined, at which time “medical staff” checked the child, took a urine sample and the doctor advised the mother that there might not be any definitive results.
[15] There is no dispute between the parties that the mother denied access after the Father’s Day weekend. It was the mother’s evidence that she feared for the child’s safety.
[16] The medical evidence included a report dated June 26, 2020, signed by Dr. Tamara Van Hooren in her capacity as a member of Academic Pediatric Medicine and Child Protection, Children’s Hospital, London Health Sciences Centre.
[17] The following constitutes a summary of evidence from Dr. Van Hooren’s report that is relevant on the motions before the court:
(a) the child was assessed in the company of the mother by Dr. Van Hooren on June 26, 2020;
(b) regarding the child’s presentation in the emergency department at Children’s Hospital on June 23, 2020, Dr. Van Hooren’s report indicated that specific concerns described in the medical record included the child’s father touching her, taking pictures of the child’s genital area and asking the child to touch him;
(c) Dr. Van Hooren stated that, at that time, the child’s examination was noted to be “unremarkable” and that an outpatient referral was placed to Dr. Van Hooren’s office;
(d) Dr. Van Hooren’s report notes that the child had shared with her mother that the father routinely puts Polysporin on the child’s vagina;
(e) during the assessment by Dr. Van Hooren, the child was questioned if her father does anything that hurts; the child responded that he “hits, kicks and punches” her. The child described not liking it when her father cleans her eyes with a facecloth. The child mentioned that the father taught her that it is okay to kill animals, although the child did not share any specific incidents where this had occurred;
(f) when asked regarding anything good that occurred at the visits with her father, the child initially said that nothing was good, but then described receiving “LOL dolls”;
(g) after prompting by the mother, the child indicated that the father likes to touch the LOL dolls “down there” and that the father wanted the child to do the same;
(h) the child further reported that her father touched her with his fingers, usually while on the bed, that he takes pictures of her with her clothes off and when alone and that he asked the child to touch him “there,” but that she refused;
(i) the child did not endorse that her father’s genitals touched her ever in the past;
(j) Dr. Van Hooren opined that the use of Polysporin on the vagina would be considered “highly unusual even in the presence of an infection”;
(k) at page 4 of the report, Dr. Van Hooren concludes as follows:
At the time of my assessment, examination of the genital and perianal region appeared normal. It should be noted that given the commonly chronic nature of sexual abuse in children; the perpetrator drive for actions to continue unreported; and the speed of mucosal healing in the genital area; a normal examination remains common both in cases of abused and non-abused children. In addition, an intact hymen does not preclude digital penetration as potentially described above. In addition, no physical findings were noted of physical abuse, with the significant limitation of not having examined [the child] following any of the reports of physical discipline described.
THE FATHER’S RESPONSE
[18] The father denied any wrongdoing, as noted earlier. The father characterized the mother’s claims as bizarre and unsubstantiated.
[19] The father claims that the child has been influenced by the mother, whose objective is to terminate his access with the child or, alternatively, limit his time with the child by imposing supervised access.
[20] The father offered some unhelpful speculation that possibly the mother’s boyfriend, who moved in with the mother in or about March 2020, may have influenced the mother’s decision to “cut” the father out of the child’s life.
[21] The father addresses, specifically, various allegations. He describes as “baffling” the allegation that he woke the child in the middle of the night to show her aliens and then put her in the closet.
[22] The father explained that he had a bonfire in the backyard and that, when he and the child were looking at the stars, they saw some fast moving lights which the father said could be spaceships and that they talked about extraterrestrial life. The father described this as harmless father-daughter conversation, following which they went upstairs and he put the child to sleep.
[23] The father denies absolutely the evidence concerning discussions with the child about killing animals. He disavows any suggestion about taking inappropriate pictures of the child and he denies giving the child any pills as alleged.
[24] However, the father does corroborate two statements attributed to the child.
[25] First, the father confirms that it is true that the child sleeps in his bed. He claims that the child expressed to him that she is scared to sleep in her room alone, so he gave her the option to sleep in her room or his room. The father adds that the child used to sleep with the mother until her boyfriend moved in; the father complains that the mother never communicated to him any concerns about this issue.
[26] Secondly, the father confirmed that he has applied Polysporin to the child’s “bum cheeks and around her private area twice, never inside it.” The father explains that the child was complaining of itchiness, so he examined her and saw that she had “a severe rash on her bum and private area” on the first occasion. On the second occasion, the father again noted “a severe rash” and that the child was complaining “her bum is itchy.”
DISCUSSION
[27] The evidentiary record on the motions is necessarily limited, it is conflicting and has not been tested by cross-examination.
[28] The limited nature of the record before the court is insufficient to allow the court to make findings as to whether sexual abuse has or has not occurred. The court’s ability to make that finding is reserved for a more fulsome process, such as a trial, or perhaps a motion for summary judgment, where findings of credibility can be made and where the admissibility of any statements made by the child will need to meet the thresholds of necessity and reliability as discussed in R. v. Khan, 1990 CanLII 77 (SCC), 1990 CarswellOnt 108 (S.C.C.).
[29] The focus on the motions is to make an order that is in the child’s best interests. This necessarily includes a consideration as to the extent of risk to the child balanced against the child’s right to have access with the father as set out in the final order.
[30] Unfortunately, the motions had to be adjourned on several occasions to allow the investigations by the Society and the police to be completed.
[31] On the first return of the motions on August 6, 2020, a without prejudice order was made suspending the father’s access as set out in the final order and, pending the adjournment, the order provided that the father shall have access every Sunday from 10 a.m. to 7 p.m. The motions were adjourned to September 1, 2020.
[32] On September 1, 2020, the Society investigation still was ongoing. The motions were adjourned to September 24, 2020 and the father’s access continued on the same terms as on August 6, 2020.
[33] On the return of the motions on September 24, 2020, the father still had not been interviewed by the Society despite his expressed eagerness to meet with a Society worker. The results of the police investigation also were unknown. A further adjournment was granted to November 20, 2020. However, the father’s access, on a without prejudice basis, was increased to include also alternate Wednesdays from 3:30 p.m. to 7:30 p.m. and alternate Saturdays from 10 a.m. to 7 p.m.
[34] By the time that the motions were argued on November 20, 2020, the Society had concluded its investigation. The Society worker conducting the investigation had forwarded a letter dated November 12, 2020 to both parties.
[35] The Society concluded that the primary allegation of sexual abuse was not verified. During its investigation, the Society identified two additional child protection concerns. The allegation that the child was likely to be harmed by physical force was identified, but not verified. The allegation that the child was at risk to be emotionally harmed, resulting from the child’s exposure to ongoing post-separation caregiver conflict, was identified, but not verified.
[36] The Society letter confirmed that its investigation is concluded and that the file is closed. There was evidence from the mother that the police investigation was closed. The mother deposes that this decision was made by the police after the father cancelled a scheduled appointment for a polygraph test.
[37] The focus of the allegations must remain on the issue of sexual abuse. The unusual evidence regarding events that transpired in March 2020 is somewhat suspect and did not result in the mother curtailing access. The mother did cancel the access visit on August 16, 2020 because, according to the mother, the child had a bruise and black eye after the Sunday visit on August 9, 2020.
[38] The father deposes that during the visit on August 9, 2020 that the child had slipped on a toy while at the father’s residence and, according to the father, scraped her nose and bruised her face on the hardwood floor. The father advised the mother immediately about this incident and his lawyer disclosed same in a letter to the mother’s counsel.
[39] The evidence suggests that this incident was an accident. The mother’s decision to breach the order by denying access on Sunday, August 16, 2020 was, in the circumstances, ill-advised and constitutes unreasonable behaviour.
[40] I take into account that, otherwise, there were no issues of any consequence that occurred during the father’s access during the period between the first return of the motions in early August 2020 and the argument on the motions in November 2020.
[41] The father’s evidence pointing to the mother’s history of mental health issues approximately a decade ago, as some explanation for the mother raising the issue of sexual abuse, is evidence that is deserving of little or no merit. The mother responds adequately to this allegation. The father’s suggestion that the mother should submit to a mental health examination, similarly, has no merit.
[42] The fact that the Society has not verified the allegations of sexual abuse is important evidence. However, that is not conclusive evidence. The evidentiary record does not contain the basis of the Society’s decision, nor does it contain the Society’s records pertaining to its investigation.
[43] I consider that the father himself has corroborated two aspects of the child’s disclosure – that the child sleeps with him and that he applied Polysporin to the child’s genital area.
[44] This corroboration of the child’s disclosure leads to the difficult and troubling question as to the extent, if any, that the balance of the child’s disclosure as to sexual abuse is, or may be, credible, assuming that the child’s statements have been accurately reported.
[45] I consider Dr. Van Hooren’s evidence as to the absence of any physical findings regarding sexual abuse. However, Dr. Van Hooren’s evidence also cautions that normal examinations remain common both in the case of abused and non-abused children.
[46] In relation to the father applying Polysporin to the child’s genital area on two occasions, I consider that the father failed to take the child to a doctor, despite describing the rash as “severe.” Also of some concern is Dr. Van Hooren’s evidence that applying Polysporin to the vaginal area would be considered highly unusual even in the presence of an infection.
[47] Despite the father’s evidence that he feels exonerated by the Society’s investigation, there is no specific evidence, either standing alone or in combination with other evidence, that is determinative of the issue of sexual abuse on the limited evidentiary record before the court.
[48] In weighing all the evidence to determine the order that is in the child’s best interests, I find that unsupervised access should continue and that there should be some overnight access as set out in the order below. This is an appropriate case to order the involvement of the OCL, with a request that the OCL consider a s. 112 investigation and report.
[49] In making the order below, I have considered also the father’s very troubling evidence that, while the Society investigation was ongoing, that he spoke to the child about the child’s allegations, suggesting to the child that the allegations are false and that the allegations may get the father in trouble. In my endorsement dated September 1, 2020, I described those allegations as “very concerning and inappropriate.” I would add that the father’s conduct in speaking to the child was bad judgment in the extreme, it was unreasonable, it impacts adversely on the father’s credibility and it may have tainted the Society’s investigation, in particular, any attempts by the Society subsequently to obtain disclosure from the child.
[50] The father’s request for a finding of contempt is dismissed. He failed to serve the mother with the correct contempt motion form and further, during argument, the father indicated that he was not proceeding with that claim.
[51] I decline to make a police assistance order. I find that it is neither necessary nor in the child’s best interests.
[52] The father had requested that make-up visits be ordered. This is not the appropriate time to order make-up visits. The order below reserves that issue to be dealt with later.
[53] I am mindful that there is a significant backlog of cases on the trial list due to COVID-19 and that any trial in this case may be delayed.
[54] The parties are encouraged to assess carefully the overnight visits that have been ordered. If the overnight visits (and also the other visits) proceed without incident for a reasonable period of time, then the parties should make best efforts to engage in settlement discussions. If the OCL accepts this case, the parties should consider carefully any recommendations that may be made by the OCL.
[55] The order below provides for an opportunity for the parties to make written costs submissions. I would encourage the parties to resolve costs, as there appears to be divided success.
ORDER
[56] I make the following interim order:
Paragraph 4 of the final order of Henderson J. dated June 18, 2018, which provides for the respondent’s regular schedule as to parenting time is suspended in its entirety.
The respondent shall have a regular schedule of unsupervised parenting time with the child as follows:
(a) every Sunday from 10 a.m. to 7 p.m., with overnights as provided in subparagraphs (b) and (c) below;
(b) every fourth Sunday, starting Sunday, February 7, 2021, the respondent’s parenting time shall be overnight from 10 a.m. Sunday to Monday morning at school time, or 9 a.m. if the school is closed;
(c) starting in June 2021, the overnight access specified in subparagraph (b) shall increase to alternate Sundays;
(d) alternate Wednesdays from 3:30 p.m. to 7:30 p.m.; and
(e) every third Saturday from 10 a.m. to 7 p.m., starting Saturday, February 6, 2021; and effective in June 2021, the Saturday access shall be from 10 a.m. to 7 p.m. on the first Saturday of each month.
- The respondent’s parenting time specified in paragraph 7 of the final order, which deals with holiday parenting time, shall continue subject to the following modifications:
(a) there shall be no overnights and, where paragraph 7 of the final order contemplates an overnight visit with the respondent, then the child shall be returned to the applicant at 7 p.m., and if the child was scheduled to be with the respondent the following day, then the child shall be returned to the respondent at 10 a.m. on the following day; and
(b) the only exception to subparagraph (a) is the parenting time during the Father’s Day weekend, which shall proceed as set out in paragraph 7(b) of the final order.
The respondent shall ensure the child sleeps alone in her room during any overnight parenting time.
Both parties are prohibited from discussing this court case with the child.
The parties are at liberty to agree in writing to any additional parenting time for the respondent, including overnights.
Each party shall have reasonable telephone and video access to the child while the child is in the care of the other party.
An order appointing the OCL shall issue in the standard form.
The respondent’s request for make-up visits shall be dealt with by the judge who deals with this case on a final basis.
The balance of each party’s motion is dismissed.
This order is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.
If the parties cannot agree on costs, then written costs submissions may be forwarded within 30 days, limited to 3 typed pages, double-spaced, minimum font 12, plus copies of any time dockets and bills of costs, with any authorities to be included only via hyperlink in the written submissions. The written costs submissions shall be filed electronically in the usual form and a copy shall be forwarded to the trial coordinator. If the parties have agreed on costs, then counsel shall advise the trial coordinator via a brief letter.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: January 28, 2021