N.B. v. L.M.E. Date:, 2011 BCPC 284

Citation: N.B. v. L.M.E. Date: 20111003 2011 BCPC 0284 File No: 07-21039 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: N.B. APPLICANT AND: L.M.E. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Applicant: J. Lewis Counsel for the Respondent: K. Russ Place of Hearing: Vancouver, B.C.

Dates of Hearing: September 13, 14, 15, 16, 20, 21, 22, 23, 2011 Date of Judgment: October 3, 2011 [ 1 ] The Applicant father, N.B., and the Respondent mother, L.M.E., each seek sole custody and guardianship of their children, T.L.B., born [DOB] and M.A.B., born [DOB]. L.M.E. also seeks to set aside or vary the June 26, 2007 ex-parte order of Judge Senniw which granted N.B. sole custody and guardianship. [ 2 ] I have heard evidence over 7 days of trial followed by half-day of submissions.

Counsel for each party has also provided written submissions. [ 3 ] This is a difficult and troubling case, with lay witnesses providing completely contradictory versions of the facts, and experts providing directly opposing views and opinions. [ 4 ] During this trial I have heard evidence from N.B. and his witnesses: 1. N.B.’s mother N.A.B., 2. K.L.B. (resident manager of the apartment where N.B. and L.M.E. resided from April 2001 to May 26, 2007), 3.

Heidi Hendricks who, with the consent of both parties, was accepted by the court in the area of parent support, child development, child development trauma and repair. [ 5 ] L.M.E. testified on her own behalf.

[ 6 ] The court also heard evidence from Dr. Krywaniuk , a witness appointed by the court, as an expert in the area of clinical and neuropsychology, learning disabilities, child protection, custody and access. [ 7 ] A number of expert’s reports were also admitted into evidence by consent. These included: 1. Report of the Child and Family Investigator – Kathleen Rimar - from Denver Colorado dated June 15, 2009 and addendum dated June 23, 2009. 2. Reports of Psychological Evaluations dated September 10, 2009 by Dr. Claire Purcell. 3. Observations of parent-child interaction dated February 4, 2011 by Dr.

Claire Purcell. 4. Psycho-sexual evaluation of N.B. by Dr. Stephen Brake and Associates dated February 2, 2011. 5. Report by Dr. Lorna Fadden re: Discourse analysis of child’s statement to police dated March 7, 2011 6. Report from Heidi Hendricks of Lutheran Family Services of Colorado regarding the re-integration therapy visits by N.B. with T.L.B. and M.A.B. between July 20 and August 1, 2011 7. Letter to L.M.E. from Jesse Andrews, director of Assessment and Treatment at the Denver Children’s Advocacy Center dated September 1, 2011.

Section 15 investigation report of Dr. Larry Krywaniuk . [ 8 ] I have considered all of the evidence above, the case authorities presented by counsel and counsel’s submissions in coming to my decision. I have also considered the principles to be considered in determining the best interests of the children as set out in

Section 24 of the Family Relations Act : 24. When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances: (

a) the health and emotional well-being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. Evidence Not in Dispute [ 9 ] L.M.E. met N.B. on-line in a “pagan chat room”, in late 1999 or early 2000. L.M.E. was living with her mother in Colorado and N.B. was living in Vancouver. After about 5 or 6 months, their communication expanded to include telephone contact. In April of 2001, L.M.E.’s mother drove to Vancouver with her and her younger brother, D. to meet N.B.

L.M.E. moved in with N.B. immediately and, after about 2 weeks, L.M.E.’s mother and brother drove back to Colorado, leaving her with N.B. L.M.E. remained in Canada with N.B. from April of 2001 until May 26, 2007. During those six years together, L.M.E. gave birth to T.L.B. and M.A.B.

While they were together in Canada, N.B. and L.M.E. resided in rented accommodation in the Gastown neighbourhood of Vancouver. [ 10 ] L.M.E.’s access to medical care and other social services and her ability to work while in Canada was compromised because she was basically an illegal alien, having crossed into Canada as a visitor and never obtaining legal status as an immigrant.

N.B. and L.M.E. never married and N.B. never sponsored her immigration to Canada. [ 11 ] On May 26, 2007, N.B. came home from work to find that L.M.E. had left their home with the children without warning and without any indication of where they had gone. At that time, T.L.B. had just turned 5 and M.A.B. was just under 6 months old.

N.B. contacted the police and tried to find L.M.E. and the children, eventually locating them in Colorado, residing with L.M.E.’s father. [ 12 ] N.B. has filed applications in both Colorado and in this court seeking the return of the children who have continued to reside in Colorado with their mother since they left Canada. L.M.E. has returned to Canada with the children for this trial which will determine the issues of custody, guardianship and access. Court History [ 13 ] On June 11, 2007 N.B. filed an application for custody and guardianship in this court.

Judge Senniw’s ex-parte order of June 26, 2007 awarded him sole custody and guardianship. On January 25, 2008, L.M.E. filed her own application in this court to set aside the ex-parte order of Judge Senniw and seeking sole custody and guardianship. On April 1, 2008, L.M.E.’s preliminary motion on affidavit evidence, seeking approval for her move to Colorado with the children and varying Judge Senniw’s order was dismissed, without prejudice to her right to have the matter heard again on viva voce evidence.

[ 14 ] On June 2, 2008, N.B. applied in Colorado to have the children returned, pursuant to the Hague Convention. During the Hague Convention action, a dvd and transcript of an interview of T.L.B. was produced by L.M.E.’s counsel wherein T.L.B. disclosed sexual abuse of him by N.B. This was the first time that N.B. was aware of such allegations. [ 15 ] Judge Bryan of the Colorado District Court, Adams County, determined that the children had been wrongfully removed from Canada pursuant to

Article 12 of the Hague Convention but declined to remove the children from Colorado pursuant to

Article 13, on the ground that there was a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. [ 16 ] On June 26, 2008, L.M.E. filed a petition in Colorado, “seeking an initial custody determination” of the children pursuant to an Allocation of Parental Responsibilities Action.

The hearing in Denver, Colorado on the broader issue of permanent custody commenced on July 6, 2009 before the Honourable Judge Laff of the Colorado District Court, City of Denver. [ 17 ] On July 7, 2009 Judge Laff ordered both parties to submit to a psychological evaluation with Dr. Claire Purcell. [ 18 ] On October 13, 2009, N.B. applied to serve L.M.E. in Colorado with documents to formalize the ex-parte order of Judge Senniw.

On November 9, 2009, L.M.E. filed an application to dismiss this application for want of jurisdiction. [ 19 ] On November 13, 2009, Judge Laff , of the Colorado court, and Judge Davis of this court (as he then was), held an open court discussion on the record.

They agreed that the trial on the mother’s petition would continue in Colorado before Judge Laff , with his decision, pending the determination by Judge Davis of this court, of the appropriate forum. [ 20 ] On December 18, 2009, Judge Davis of this court rendered his decision that the Provincial Court of British Columbia was the appropriate forum in which to determine the custody, guardianship and access for the children. [ 21 ] On January 21, 2010, Judge Laff made an interim order that the children reside in Colorado.

Judge Laff ordered that any access to the children by N.B. be contingent upon a favourable psycho-sexual evaluation by a qualified professional, following which there would be a careful, therapeutic reintroduction of the children to N.B. Judge Laff stipulated that his interim order would remain in effect until the Provincial Court of British Columbia made a permanent order but, in any event, not longer than one year. That order has now expired. [ 22 ] On October 26, 2010, Judge Meyers of our court adjourned the November 9, 2010 trial date, ordered L.M.E. to cooperate with Dr.

Claire Purcell for the purposes of a psychological assessment and report, and directed the parties to set a new trial date. [ 23 ] On February 23, 2011 Judge Dhillon of our court ordered an investigation and report by Dr. Krywaniuk pursuant to

Section 15 of the Family Relations Act , adjourned the trial again and reset it on a pre-emptory basis. Judge Dhillon also ordered L.M.E. to produce a diagnosis/prognosis of her from her treating physician. Judge Dhillon further ordered re-integration therapy for the children with the father. Five re-integration therapy visits by the father with the children took place in Colorado between July 20 and August 1, 2011.

Issues [ 24 ] In addition to the disclosures of N.B.’s sexual abuse of him made by T.L.B., L.M.E. has made allegations that N.B. physically and sexually abused her during their relationship. [ 25 ] N.B. denies all of these allegations but acknowledges that T.L.B. now believes the allegations to be true. [ 26 ] I find that the previous orders of the Colorado courts, which have severely restricted N.B.’s access to the children, have been based on a tacit acceptance that these allegations are true. [ 27 ] It is difficult now, 4 ½ years since the parties’ separation and at least 5 years since the dates of the alleged sexual abuse of T.L.B., to determine whether or not the physical and sexual abuse of L.M.E. and T.L.B. at the hands of N.B. actually occurred or not.

Yet, that is precisely what this court must do. It is not possible to determine the best interests of the children without making findings on this issue. [ 28 ] If this court finds that the allegations against N.B. are well founded and valid, then clearly it would be in the best interests of the children to remain in the care and custody of L.M.E. and return to Colorado with her.

If these allegations are found not to have occurred, or unlikely to have occurred, then that would raise a number of troubling questions, including whether or not L.M.E. has been responsible for alienating the children against their father. [ 29 ] To determine this issue, it is necessary to go through both the viva voce testimony given by witnesses during the 7 days of this trial and the many expert reports that have been provided and filed by consent of both parties. This court must make findings with respect to credibility and weigh the evidence, including the expert reports.

Expert Reports [ 30 ] This court now has much more information than was hitherto available to assist in determining the best interests of the children. None of them were available to Judge Bryan’s hearing on July 31, 2008. All of the expert reports, except the report of Child and Family Investigator Kathleen Rimar of June 23, 2009 and the first report by Dr.

Purcell on psychological evaluations of September 10, 2009, were created after Judge Laff’s ruling in the Colorado courts on January 7, 2010. [ 31 ] It would appear that the report of the Kathleen Rimar , the Child and Family Investigator from Denver, Colorado dated June 15,

2009 and addendum dated June 23, 2009 were available to Judge Laff but not to Judge Bryan. It is clear that both Judge Laff and Judge Bryan relied on the forensic interview of T.L.B. by Lisa Sandoval in coming to the decisions they made. Judge Laff stated at page 13 of his January 7, 2010 ruling that he found this forensic interview compelling and credible. [ 32 ] During the course of the Hague Convention hearing in Adams County before Judge Bryan, L.M.E.’s lawyer produced a transcript and dvd of a forensic interview of T.L.B. by Lisa Sandoval. This interview took place just after T.L.B. had turned 6 years old.

During this interview, T.L.B. disclosed that his father, N.B., had sucked “the blood out of my penis” and that he had also sucked on his father’s penis. T.L.B. told Ms. Sandoval that his father had sucked blood out of his penis one hundred times and that he had sucked the blood out of his father’s penis one thousand times. [ 33 ] Kathleen Rimar , the Child and Family Investigator interviewed L.M.E. and the children directly and conducted telephone interviews of N.B. and the following persons: 1. N.B.’s friend, B.B., 2. Patricia Vaughn, the counselor at T.L.B.’s school, 3.

Kathy Jackson, L.M.E.’s caseworker though Colorado Coalition for the Homeless, 4. Amanda, case manager for T.L.B. and M.A.B. through Colorado Coalition for the Homeless, 5. Jennifer Maddox, L.M.E.’s therapist through Colorado Coalition for the Homeless, 6. B.E., L.M.E.’s step-mother, 7. N.A.B, N.B.’s mother [ 34 ] Ms. Vaughn, Ms. Jackson, Amanda and Jennifer Maddox all found L.M.E.’s allegations to be credible, believed that L.M.E. had been the victim of severe domestic violence and that T.L.B. had been sexually abused by his father. They were all very supportive of L.M.E. Ms. Maddox was quoted by Ms.

Rimar to say of N.B. that “...he appears to be a psychopath” with “no remorse” for his behavior . Ms. Rimar preferred the information received from these professionals, found L.M.E. to be very credible and concluded her report by finding that it was more likely than not that L.M. E. and T.L.B. had been the recipients of N.B.’s abuse. There is no evidence that any of these professionals relied upon by Ms. Rimar have ever met N.B. [ 35 ] Dr. Stephen Brake, a psychologist from Denver, Colorado, performed a psychosexual evaluation of N.B. In his conclusions, Dr.

Brake stated at page 10 regarding N.B.: …Psychological testing suggests that he is outgoing, sociable, and generally well-adjusted. There was no indication in the test results of significant psychopathology or antisocial personality tendencies. There was some indication that he is likely sensitive, sometimes to a fault, and may feel unfairly treated. Men with similar psychological profiles are somewhat guarded, have a tendency to rationalize their feelings, and can become irritable when frustrated.

An objective measure revealed the presence of no deviant sexual interests. [ 36 ] Commenting on the presence or absence of risk factors which could be indicative of future sex offending behavior , Dr. Brake stated at the bottom of page 10 and top of page 11: …Many factors, including those regarded as “stronger” , do not appear to be present.

More specifically, he has no proven history of sex offending, he has no documented history of criminal offending, he has no documented history of aggressive behavior (although he self- reports some as a child), he does not present with deviant sexual interests according to an objective measure, he does not appear to present with evidence of cognitive distortions pertaining to sex, he does not appear to have an antisocial personality, and he does not appear to be generally unstable. On balance, relatively few risk factors are present.

A risk assessment guideline suggests that N.B.’s risk for sex offending behavior is low (although it should be noted that the guideline is more commonly employed with convicted sex offenders). [ 37 ] Dr. Claire Purcell, a psychologist in Denver, Colorado, performed psychological evaluations of both L.M.E. and N.B. in September 2009. [ 38 ] Under the heading “Results of testing” for N.B., Dr. Purcell stated: …Personality evaluation indicated that N.B. functions quite well in both the intellectual and emotional areas.

He is an individual who tends to make decisions with an intuitive approach, depending more on what he feels than what he thinks. He is experiencing some emotional stress, probably because of his current family situation, but his resources are sufficient to keep him well organized and effective. The testing indicates that he is accurate in his perceptions and logical in his thinking; he shows qualities in the testing that suggest he expects interactions with others to be pleasant.

He is comfortable with close relationships, and comfortable in experiencing and expressing emotions. [ 39 ] Under the heading “Results of testing” for L.M.E., Dr. Purcell stated: …Personality testing indicated that L.M.E. is depressed, experiencing little pleasure in her life. The PAI indicated that she is sad, unhappy and pessimistic most of the time, having little energy, and frequent somatic symptoms. She is tense and anxious most of the time, and may often be moody and irritable. She has difficulty trusting others. L.M.E. manages to function reasonably effectively much of the time.

Her intellectual and emotional resources are within the average range, but, considering the stress she experiences (external and internal), just barely adequate to allow her to function effectively. One of the techniques she uses to prevent disorganization is to make decision-making simple by avoiding information. Typically, an individual

gathers information to help in decision-making. L.M.E. prefers to make very quick decisions with very little information. She is not likely to question her thinking, and she is likely to act impulsively, without considering consequences. [ 40 ] On February 4, 2011, Dr. Claire Purcell prepared a report on “Observation of Parent-Child Interaction”, after observing interaction between N.B. and his sons, T.L.B. and M.A.B. From the start of the interaction with N.B., T.L.B. was angry and defiant. He responded to N.B.’s initial greeting with “go to hell”.

When N.B. said to T.L.B., “I love you T.L.B.”, T.L.B. said “I don’t love you” and again repeated “go to hell” and “go back to Canada”. When N.B. told T.L.B. that his paternal grandmother loved him and wanted to see him, T.L.B. said “I don’t want to. I don’t like her anymore.” T.L.B. grimaced whenever his father tried to speak to him and was verbally aggressive and threatening to his father, saying things like “Fuck you!”, or giving his father the finger or kicking at him. N.B. was never remonstrative with T.L.B., saying things like “I’m sorry you feel that way” or “I love you T.L.B.”.

T.L.B. appeared to be working very hard at maintaining an angry glowering expression whenever he thought his father was looking at him but would look at his father with calm interest whenever he thought he wasn’t looking. [ 41 ] M.A.B., on the other hand was eager to interact with N.B. who deftly coaxed him into playing a little verbal game with him. Smiling and grinning at N.B., M.A.B. approached closer and closer to his father, until he was leaning against his father’s knees.

When M.A.B. climbed onto the couch and sat closer to his father, T.L.B. cried out angrily that his father would hurt him, but M.A.B. ignored T.L.B. M.A.B. eagerly accepted the gift that N.B. had brought but T.L.B. refused to accept his, saying he wasn’t interested. M.A.B. played happily with his presents and laughed and played with his father but at one point, he noticed T.L.B.’s angry expression and suddenly switched and glowered in imitation.

However, within a very short time, M.A.B. was again interacting with his father in a friendly way, leaning against him, talking to him, asking him for help and playing with him. [ 42 ] As the session continued, T.L.B. became less attacking towards his father and, at one point, engaged with his father in a conversation about toy trucks. Then N.B. asked T.L.B. a question and T.L.B. answered briefly before resuming his angry glowering expression. T.L.B. did not touch any of the presents or snacks that N.B. had brought. As the session continued, T.L.B.’s expression was more interested and less angry.

If he noticed his father looking at him he would scowl fiercely but otherwise would listen to N.B.’s comments and appear interested. [ 43 ] When it was time for L.M.E. to pick up the boys, N.B. asked T.L.B. if he could help him with his coat. T.L.B. grabbed his coat saying angrily “don’t touch my coat”. N.B. asked M.A.B. for a hug. M.A.B. hugged his father and said he didn’t want to leave. N.B. told the boys he loved them, that he would see them again and then left the room. [ 44 ] Under the heading “Discussion”, Dr.

Purcell wrote: The interaction was painful to observe because to see a child rejecting a parent is always difficult. It was encouraging, however, to see that N.B. was gentle, affectionate, neither defensive nor overly reactive in a difficult situation, and that his behaviour toward each of the boys was sensitive and very appropriate to the age and development stage of each. [ 45 ] Later, at the last paragraph of page 5, Dr. Purcell wrote: T.L.B. looked miserable, expressing an anger that appeared to be assumed. He did not smile once, even when he was with his mother and familiar adults.

One might hypothesize that his expression and his behaviors were justified because he had been mistreated by his father. However, they appeared to be behaviors he had been told were appropriate rather than expressions of his real feelings. When he thought no one was watching him, he watched his father with interest. In his brief verbal exchanges with his father, he was relaxed, neither angry nor fearful.

A child of four who has been molested or abused may, four years later, at eight, be frightened of the abuser, or he may be overly eager to curry favor from the abuser, but is not likely to show anger toward that person, unless he has been told by adults that he should feel and act angry. His immediate and defiant rejection of his grandmother has that same flavour, as though he has been told over and over that she is a bad person who never loved him. [ 46 ] On the last page of his February 4, 2011 report, Dr.

Purcell concluded as follows: My information came from many sources, people who knew N.B. and L.M.E. in Vancouver, N.B.’s account of his life experiences, the picture presented by testing of his intellectual and emotional functioning, the results of the sex specific evaluation, and his way of relating to the boys. There has never been an objective, neutral evaluation of the allegations of sexual abuse, but only repetitions of L.M.E.’s allegations and T.L.B.’s response to leading questions by a CFI.

An adequate investigation would have included face to face interviews with each parent, interviews of T.L.B. with each of his parents, interviews of T.L.B. by an experienced mental health professional careful to avoid leading questions or suggestions. The questions raised by Hanna Bendtsen of the Attorney-General’s office in Canada are appropriate (pages 15 and 16 of the CFI report). A psychologist, Kathryn Kuehnle , has written of the essential components of an adequate, objective, unbiased investigation of allegations of sexual abuse.

The investigation in this case was inadequate and through it’s procedures likely to result in erroneous conclusions. My conclusion from the information available to me is that N.B. was a good father who was not abusive to T.L.B.

Based on the changes in T.L.B.’s behaviour in this brief interaction session, it seems to me likely that if he were reintroduced to his father in frequent meetings, his attitude would change from negative to positive, and he would have the advantage of knowing N.B. as a parent who cares about him and who has been persistent and careful in trying to re-establish his relationship with both of his sons. [ 47 ] Dr. Lorna Fadden, a linguist specializing in discourse analysis and prosody was given a dvd of T.L.B.’s interview by Lisa Sandoval for analysis. Dr.

Fadden has written several linquistic analyses for law enforcement and legal counsel. She has also taught forensic linguistics to investigators from a variety of provincial and national law enforcement agencies. [ 48 ] Dr. Fadden noted that 60% of the questions asked by Ms. Sandoval addressing the physical details of the alleged oral sex were highly specific questions. She noted at page 3 of her report that: The research on child witness statements demonstrates that children’s overall accuracy of account decreases with highly specific questions. ( Hutcheson et. al 1995, Dent 1992, King & Yuille 1987).

Highly specific questions are those in which the questioned details

are supplied in the question itself. For example: High specificity: Was the man wearing a blue jacket? [ yes/no question] Was the man wearing a blue jacket or a black one? [ alternative question] [ 49 ] These, of course, are what we know in the legal community as leading questions. Not surprisingly, Ms. Fadden’s opinion is that evidence gathered in this manner must not be heavily relied upon without significant corroborating evidence. [ 50 ] Ms. Fadden found that several of the highly specific questions were posed as alternative questions (e.g. did daddy do A or B?). Examples of such questions in Ms.

Sandoval’s interview of T.L.B. were these: I. So when you sucked the blood out of daddy’s penis, did you see blood or not? C. Not I. Ok, did it taste like anything or not? C. Not. I. Ok. Did any other part of your dad’s body touch your body or not? C. Not [ 51 ] In her opinion, T.L.B.’s responses to the alternative questions strongly suggested that he either did not fully grasp the questions, or that the asserted information contained in the questions does not align with T.L.B .’s understanding of events. At page 5, Dr.

Fadden wrote: It is well documented in the literature on police interviewing that alternative questions are dispreferred , owing to the fact that indeed witness-generated details are evidentially superior to those generated in the interviewer’s questions. It is naturally acknowledged that interviewing children who may be of an age where more prompting is required, that alternative questions such as this are one of a few strategies necessary to obtain information.

However, in T.L.B.’s case, these alternative questions produce responses of no forensic value because it is unclear whether he is providing a truthful answer, or simply ‘parroting’ the last element contained in the question. And given that each of these sequences would elicit information of consequence regarding alleged sexual assault (as opposed to “are you in kindergarten or grade one?”) then they should NOT be relied upon. [ 52 ] Dr. Fadden found that there was little evidence of coaching but also concluded that the interview of T.L.B. by Ms.

Sandoval was “of little forensic value in the determination of whether any assault of a sexual nature has been perpetrated against him by his father”. [ 53 ] Judge Laff of the Colorado District Court, in his ruling of January 7, 2010, allowed therapeutic reintroduction of the children to N.B. once he had passed the psycho-sexual evaluation as recommended by Ms. Kathleen Rimar , CFI. Heidi Hendricks, a Licenced Protection Counselor with Lutheran Family Services of Colorado, supervised 5 re-integration therapy visits of the children with N.B., between July 20, 2011 and August 1, 2011. [ 54 ] Ms.

Hendricks, with the consent of both counsel, testified at this trial by telephone from Colorado. Both counsel consented to Ms. Hendricks being qualified by this court as an expert in the area of parent support, child development, child development trauma and repair. [ 55 ] To prepare for these visits, Ms. Hendricks arranged a pre-visit with L.M.E., T.L.B. and M.A.B. and a pre-visit with N.B. [ 56 ] At page 6 of her report, Ms.

Hendricks described the initial interaction between N.B. and his sons on their first visit: ...T.L.B. went to the seat on the couch he had pre-assigned himself and continued to look down and clutch the blanket that his stuffed animal was wrapped in to his chest. M.A.B. ran immediately to an unassigned spot, right across the coffee table from N.B. N.B. said, “Hi Buddy” and M.A.B. smiled and said an energetic “Hi” back. This was a significant change in presentation from the pre-visit with M.A.B.

During the pre-visit he sat silent and somewhat sullen throughout, having the small tantrum at the end of the session when he wanted a snack. Upon seeing his father, his face lit up, he immediately engaged and they exchanged greetings. T.L.B. did not acknowledge his father but continued to sit silently. When N.B. tried to engage T.L.B., T.L.B. refused, shaking his head and looking down. [ 57 ] Later, during this first visit, N.B. tried to engage the boys in playing with Legos . M.A.B. was happy to play with the “together” Legos with N.B. but T.L.B. said he wanted to play with the “alone” Legos .

T.L.B. never made any effort to touch those Legos . N.B. laid out the pictorial brochure and asked T.L.B. if he had any suggestions about what to build. Ms. Hendricks describes the ensuing interaction at the bottom of page 6: T.L.B. just shook his head but told N.B. that he had the same set at home and had built all the things. M.A.B. and T.L.B. decided to build a boat and were not having much success at finding the “people pieces”. T.L.B. showed his dad exactly where the pieces were.

N.B. gave the people pieces to T.L.B. and he began to build the people while M.A.B. and N.B. continued to build the body of the boat. [ 58 ] Ms. Hendricks then initiated a conversation about the stuffed animal that T.L.B. had brought. T.L.B. called the stuffed animal, which was quite tattered and worn and kept in a ziplock bag to prevent any further deterioration, “Baby Boy Kitty”. N.B. then recounted his recollection of how he had bought “Baby Boy Kitty” when T.L.B. was 2 years old. T.L.B. replied that it was his mother who had bought it. At page 7, Ms. Hendricks describes the further interaction between them:

We then talked about the other memories all the while continuing to build with the Legos , with all three parties asking for certain red pieces, certain long pieces, little lights, etc. and all parties fully engaged in handing pieces back and forth with M.A.B. and N.B. building on the same main

section of the boat. N.B. asked if T.L.B. remembered two cats and updated T.L.B. on the cats. T.L.B. remembered a third, the crabby cat and N.B. laughed about that particular cat. [ 59 ] At the end of the visit, N.B. and the boys said an easy goodbye with words. Ms. Hendricks summarized her impressions of the visit at page 8: Note : Other than upon entry, when T.L.B. came in clutching Baby Boy Kitty to his chest and looking down, once he was in the room T.L.B. never showed any fear of his father.

As time went on during the session, they engaged very naturally as co-builders and in fact their discussions of what to build and how to build the Legos was very natural back and forth. When the questions were asked, T.L.B. showed some anger which was temporary and playing resumed. During discussions of neutral memories, places they lived, the cats, Grandma, etc., T.L.B. conversed as if it was normal conversation. At no time was N.B. inappropriate with either boy or myself.

He was thoughtful in his responses, aware of the different needs of both boys and responding adequately and appropriately to the very different needs. He is warm to both boys and was easily able to move between playing Legos with the boys to being an adult figure when it was time to clean up. In getting M.A.B. a snack N.B. was conscious of making sure M.A.B.’s hands and mouth were clean afterwards. He was comfortable with himself and the boys. [ 60 ] The second visit was after Ms. Hendricks’ regular working hours due to scheduling issues.

She picked up T.L.B. and M.A.B. first and then went to the hotel to pick up N.B. When she picked up the boys, L.M.E.’s fiancé, A. greeted her and asked on behalf of L.M.E., if N.B. had told T.L.B. that he was taking the boys to Canada. A. said T.L.B. had reported this and was very scared. Ms. Hendricks assured A. that N.B. had not said this.

She then told A. (assuming that L.M.E. would hear it as well from where she was standing) that T.L.B. did not appear to have any fear in advance of the visits and seemed to also fear that in meeting with his father, he might have to go to Canada or that his father would take him there. She further assured A. and L.M.E., however, that T.L.B. seemed to relax and be able to participate, and that N.B. did not at any time act in a way that would lead T.L.B. to feel unsafe. [ 61 ] Ms. Hendricks described the drive to the hotel as follows: ... T.L.B. and M.A.B. seemed at ease and comfortable with going...

T.L.B. gave me information on a variety of subjects that he had watched on the Discovery Channel. He asked me questions to see if I knew the answers on several matters of science, space travel and world facts. Both boys were animated and talkative. For T.L.B. it was the most animation I had thus far observed. He was conversant, engaged and interested around age appropriate academia and was very much the student of many different subjects. He liked school, talked about his best friend (J.?) and TV shows he liked, all of which were on the Discovery Channel or Animal Planet. [ 62 ] Ms.

Hendricks drove them to a restaurant where they ordered dinner. Though they were anxious to eat, T.L.B. became sullen after ordering his food, looking down, not answering questions N.B. asked trying to engage in conversation. At the last paragraph of page 10 of Ms. Hendricks’ report she describes T.L.B.’s reactions: At one point, he angrily stated that his mom had given him Baby Boy Kitty and then he looked at N.B. and somewhat out of the blue he said in a loud voice with a very angry face, “I remember what you did to me and I remember what you did to my mom”.

N.B. looked taken aback and said “well, T.L.B., anything you want to say is okay and anything you want to ask is okay”. [ 63 ] Ms. Hendricks indicated that this kind of conversation should take place after dinner in the car and not in a public restaurant. The boys then ate, talked about school, about the Legos and simple everyday things. They talked about T.L.B.’s appetite and T.L.B. stated that he could eat five pizzas. [ 64 ] Ms. Hendricks, at the top of page 11 of her report, described what happened once they returned to her vehicle: ...we promptly set up an impromptu session.

I asked which issue T.L.B. wanted to start with and he said, “I remember the bruises all over my mother’s face.” N.B. said, “I don’t remember any bruises, T.L.B., I’m sorry, I just don’t. How did they get there?” T.L.B. responded again with an angry and accusing tone, “You punched her, you punched her in the face over and over”. [ 65 ] In response to questions from Ms. Hendricks, T.L.B. stated that he was present and that it took place in the living room. Ms.

Hendricks then describes this exchange: N.B. said “well, what do you remember?” T.L.B. said again, angrily and accusingly, “I remember you punching her and punching her in the face and the bruises”. N.B. did not really have a response and looked helpless to know what to say. [ 66 ] After a while Ms. Hendricks commented that all couples fight and argue sometimes and asked N.B. to describe the fighting between him and L.M.E. N.B. said he didn’t remember much fighting at all, and that any that occurred were verbal and usually about money. He said there was no punching and no hitting.

He also said that they were careful to put the children to bed before talking about grown-up issues. [ 67 ] After a while T.L.B. blurted out, “I remember what you did to me”. N.B., according to Ms. Hendricks report “looked lost and a little frustrated and gently said, “T.L.B., I honestly don’t know what you mean, what do you think I did to you?” T.L.B. did not respond. In response to Ms. Hendrick’s question whether there was something in particular he remembered, T.L.B. said “yes” but would not elaborate. [ 68 ] Ms.

Hendricks then acknowledged that both N.B. and T.L.B. had different memories about things in the past, that she did not know what had actually happened but her job was to make sure everyone was safe and respectful. She told T.L.B. that he was now 9 years old, going to school and knew how to dial 911. She told T.L.B. that if he ever felt unsafe he could leave or tell someone at school, and was old enough to call police. She told T.L.B. that because of that he could be safe no matter where he lived and no matter who he lived with. T.L.B. said he was okay with that.

[ 69 ] After N.B. was dropped off at the hotel and she was driving the children back home, T.L.B. and M.A.B. played a question and answer game. At one point, this exchange took place: ... T.L.B. said “I know what he did to my mom”. I asked him, “ what did he do to your mom”. T.L.B. said very angrily, “he raped her, he raped her all the time”. I asked T.L.B., “ tell me what rape is”. T.L.B. started to answer and said, “It’s where, it’s where”. After a pause... T.L.B. said, “rape is when a there’s a bed, and I don’t know, I think the woman (unintelligible) lies down and then she makes some noise”.

I asked T.L.B. if he has heard his mom make noise in a bed lying down. He said “yes”. [ 70 ] At page 12 of her report, Ms. Hendricks analyzed what she had seen: T.L.B.’s questions are now showing a presentational pattern as if they are both coached and rehearsed. Nonetheless, his truth at the moment is that he believes the incidents as he recalls them. Presentationally , he seems to be mimicking someone else’s voice and someone else’s words as well as someone else’s anger and has taken it on as his own. [ 71 ] At the last paragraph of page 12, Ms.

Hendricks wrote: On the surface, without a forensic interview, I do have concerns about the validity of the “bruising” story. If T.L.B. saw his mother punched, typically, he would not describe bruises, he would describe blood, swelling, crying, etc. Bruises are an after effect of punching. The punching may well have been real, I do not have adequate information to know as there is no police report or report that I have read or been given that documents this. T.L.B.’s memory of “bruises” is not what a child would describe as the result of witnessing punching.

I am very concerned with the possibility that he is being coached to the point where he truly believes these things have happened. [ 72 ] The third visit involved a trip to the aquarium. Ms. Hendricks conveyed a request from N.B. that he be allowed to a take a photograph and to buy the boys a gift. L.M.E. refused the request for the photograph and said that T.L.B. would just throw his gifts away. She eventually agreed that, if T.L.B. chose not to throw the gifts away, he could bring them home. [ 73 ] Ms.

Hendricks decided to follow and observe N.B. and the boys engaging in a normal activity, but not be actively involved, though still visible and present. At page 13 of her report, she described their interaction on this visit as follows: ... Once inside the boys and their father went without prompting into a unit of three. I held back or moved ahead to simply watch. The boys were appropriate throughout and while M.A.B. could run just a little ahead, he always checked himself and waited, never getting too far ahead. For the most part they moved from exhibit to exhibit talking about the fish.

The three of them grouped together, reading the displays, watching, taking turns pressing buttons, observing the fish and the divers, pointing at this and pointing at that. At one point the boys climbed into an underwater type bubble and you could see them start to squabble for space and N.B. very simply said, “hey guys, no fighting” and both boys immediately stopped. [ 74 ] At page 14 Ms. Hendricks described what happened at the end of the aquarium visit when they went to the gift shop: ...In the gift shop both boys chose out toys. I explained to them they did not have to choose out a toy and dad echoed this.

If they were going to throw the toy away then they could instead choose not to take a toy rather than throw it away. But if they wanted a toy, they could have one. M.A.B. chose some wind up cars that the boys played with cooperatively with their dad and one another as they waited for the shuttle. T.L.B. chose out a little tiger that closely resembled Baby Boy Kitty. When N.B. asked the name of the Tiger, T.L.B. said “Baby Boy Kitty 2”. ...We dropped N.B. off at the hotel and both boys spontaneously hugged their dad.

We drove home and the boys chatted with one another and every once in a while asked me an addition or subtraction question. [ 75 ] As Ms. Hendricks was returning to her car after dropping off the boys at home, L.M.E.’s fiancé A. called her back saying, “Look at this. Can you come back here?” Ms. Hendricks returned to the door of the house and observed the following: ... L.M.E. who remained around a corner, pushed T.L.B. forward who was sobbing and clutching Baby Boy Kitty. T.L.B. was sobbing hard and his chest was heaving with tears coming down his face.

A. seemed both confused and frustrated and asked that I come in and talk. A. set M.A.B. up in a back bedroom with a kid video and A. asked me to sit down. T.L.B. sat next to me, still sobbing and A. and L.M.E. sat on the couch next to the couch T.L.B. and I were on. A. said “This is what I don’t understand. He is so upset and why does he have to do this if it makes him so upset.” T.L.B. had stopped crying. L.M.E. said “he abused me, he abused T.L.B., he is totally violent, just ask anyone”.

I said I did not know what had happened in the past but I had been there every minute of every visit and there had not been one inappropriate action or word today. There was no time the boys were alone with N.B. and for the entire time only safe and appropriate behaviours took place. I told L.M.E. and A. that today’s visit had been easy, both boys had seemed very comfortable as did N.B. I told them about the fish and how they went from exhibit to exhibit. I turned and asked T.L.B. what happened to make him upset.

He said that he was just scared but couldn’t say really of what. [ 76 ] L.M.E. began to talk over and over about how abusive N.B. was. A. and L.M.E. talked about their ptsd and L.M.E. said she could not cope because of N.B.’s abuse of her and that no one believed her. Ms. Hendricks replied that it wasn’t that she didn’t believe her but the stories were very different and it was difficult for someone in her position to try to sort through them and make sure everyone was safe. Ms.

Hendricks then told L.M.E. that she was concerned that L.M.E. had taken the boys directly to her father’s home when they arrived in Colorado when all agreed that the grandfather was not safe and had hurt L.M.E. L.M.E. became very escalated at that point and said that though her father had sexually abused her in the past, he was fine now, that he was not the cause of her trauma, N.B. was. She said that her father had been in therapy and was different, that people could change but not N.B. [ 77 ] Eventually L.M.E. and T.L.B. were able to de-escalate but Ms.

Hendricks put in an informal safety plan for the evening as she was concerned about the stress on the family and wanted to know what would happen the rest of the night. A. called later that night and told Ms. Hendricks that it had been a rough night with L.M.E.

[ 78 ] At page 16 of her report, Ms. Hendricks described her concerns: ...Note: At this point I seriously considered ending the visits and moving the reintegration to Canada. The concerns were that the visits were traumatizing T.L.B. and that the trauma was very real. The trauma did not seem to be caused by N.B. or any threat from N.B. but from the feelings of conflict.

T.L.B. felt within himself if he betrayed his mother by not seeing his father as the horrible, terrible, awful villain she continued to tell T.L.B. about, me about and anyone who would listen. (Some of L.M.E.’s exact words were monster and evil, pure evil). T.L.B. is 9 years old and M.A.B. is 4. To have Mom talking about rape and domestic violence and sexual abuse in explicit detail was damaging to these two boys. I was concerned that any more visits would hurt the relationship with N.B. and his sons rather than progress in integration therapy.

I was concerned that T.L.B. is being put in an untenable position by not knowing how to integrate an okay, even good visit with his father without betraying his mother who he lives with and who has told him these things repeatedly, over and over and over. I am also concerned about M.A.B. who outwardly stays uninvolved but is hearing everything. [ 79 ] When Ms. Hendricks picked up the boys for their 4 th visit with N.B., she wrote at page 16: ... their new instruction from L.M.E. was not to hug their dad because he had sexually abused T.L.B. and she felt it was unsafe for the boys to be hugged.

I agreed to communicate “no hugs” to N.B. The plan was to meet N.B. at the Children’s Museum which was not so much a museum as it was a day care type centre with a lot of activities. [ 80 ] At the last paragraph of page 16 of her report, Ms. Hendricks wrote about the trip downtown in her car to pick up N.B.: The boys seemed happy. The only remnant of the prior day’s conversation about his dad was T.L.B. telling me that his mom had told him that N.B. used to tell him that there were monsters under his bed and they would kill him if he got out.

And his mom gave him Baby Boy Kitty to keep him safe at night because his dad had scared him so much and told him monsters were real and would get him. His mom gave him the Kitty because to keep him safe when he dad was so mean. I told T.L.B., “ we’ll ask dad about that because it’s not okay for dads to be telling their sons about monsters under beds and scaring them”. [ 81 ] After they arrived at the Children’s Museum, Ms.

Hendricks noted the initial interaction between N.B. and the boys: ...The boys first went into the train room and T.L.B. was very distant from his dad, wouldn’t talk, wouldn’t go near and wouldn’t engage or even look at N.B. M.A.B. was moving trains around. N.B. was patient and worked with M.A.B. and continued to check in with T.L.B. T.L.B. then began to ease up a bit and after a while they constructed a bridge together for the trains. They chose room after room of activity and in one room in particular, M.A.B. and T.L.B. played with other kids and each other (the tree house room). [ 82 ] Ms.

Hendricks and N.B. then had a moment to talk without the boys present. ...I told N.B. point blank that if any of T.L.B.’s allegations about punching, etc. were true and other allegations were not, in order to build trust, N.B. was going to have to cop to everything that T.L.B. might actually have witnessed or experienced. I explained that it is crazy making for a child when adults tell a child that the truth is a lie and lies are the truth.

Whether it happened here or in the next series of visits, N.B. would need to be honest with T.L.B. and himself about what had happened or what didn’t happen because only he and T.L.B. knew the real truth about what T.L.B. had seen and experienced. N.B. looked directly at me and said, “I never punched or hit or harmed his mother in any way. I would tell you and T.L.B. if I did.” Ms. Hendricks asked him about T.L.B.’s statements in her car about raping L.M.E. Ms.

Hendricks described N.B. being very pensive and saying “I never harmed her or touched her, and I never, ever raped her.” [ 83 ] When the children rejoined them, T.L.B. wanted Ms. Hendricks to ask the question about monsters under the bed. Ms. Hendricks described N.B.’s reply at page 17: I have pictures of your room and your mattress is on the floor. It always was. I wouldn’t have told you there were monsters under your bed because there was no room under your bed and I would never have wanted you to be scared of monsters or anything else....

I have all your toys, all your clothes, everything just like it was on the day you left. And I know your mom says she gave you Baby Boy Kitty and in a way she did. She and I were both with you T.L.B., shopping, and you were in the stroller. I saw it in the window and told your mom “Let’s get that for T.L.B. because I think he would love a kitty”. And your mom agreed. And so we both got it for you. [ 84 ] The boys finished up at the museum in the bubble room where they had a great and messy time. Ms.

Hendricks dropped off N.B. at his hotel and the boys at home. [ 85 ] The fifth and final visit was for an hour at Ms. Hendricks’ office. She describes this visit at page 18 as follows: ...We drew a picture of their favourite part of the visit and all drew the Aquarium. The boys then chose to play Legos and decided to communally build a house. T.L.B. was withdrawn at first and holding on to Baby Boy Kitty and said that at therapy he was told that “Kids could remember things too”. We all agreed that kids could remember a lot. T.L.B. wanted to build a house that they would visit in Canada.

They all added their parts. T.L.B. thought it needed to be bigger, N.B. wanted a garden and built that. M.A.B. build strong walls and they built quite a structure. The roof collapsed at one point and T.L.B. and N.B. had a long discussion about what they could do to rebuild it and make it so that it didn’t collapse. They decided on a support beam and worked to put that in place. It came time to say goodbye and the boys said goodbye and I walked them down to their mom and A.

We worked out transportation home for everyone and the visits ended. [ 86 ] Also in the book of experts’ reports is a letter dated September 1, 2011 from Jesse Andrews, director of assessment and treatment at the Denver Children’s Advocacy Center . Mr. Andrews is T.L.B.’s current therapist. He has treated T.L.B. as a client from June 19, 2009 to March 29, 2010 and again from July 2011 to the present. Mr. Andrews describe T.L.B.’s presenting problems when he began

therapy treatment as follows: ...Chronic masturbation, voicing suicidal and homicidal ideation, teeth grinding, tantrums and self-harming behaviours such as head- banging, aggression and sexualized behaviour directed towards his brother, and nightmares.

T.L.B.’s disclosures, language and symptomology is consistent with a young child that has experienced abuse, likely sexual and physical in nature. [ 87 ] Jesse Andrews concludes his letter with this opinion: ...It is the professional opinion of this therapist that T.L.B. has experienced sexual and physical abuse, both through reports from T.L.B. as well as his clinical presentation in therapy. It is also the opinion of this therapist that if N.B. was indeed the perpetrator, that the retraumatization T.L.B. might experience through visitation would be extremely damaging.

Regardless of whether N.B. actually abused T.L.B., it remains T.L.B.’s contention that he did. To continue to subject T.L.B. to visits while ignoring the allegations made by T.L.B. only replicates a pattern of control and abuse. [ 88 ] Dr. Krywaniuk’s report was not prepared and presented to the court until the fourth day of trial. Judge Dhillon of our court had ordered his report on February 23, 2011 but Dr. Krywaniuk was not able to conduct any interviews of L.M.E. and the children until they returned to Canada for this trial. Though he had provided a rough draft of his report, Dr.

Krywaniuk presented his report orally in his testimony at trial. He later provided a more complete final version of his report. [ 89 ] Dr. Krywaniuk reviewed all the other expert reports and the transcript and dvd of T.L.B.’s disclosures to Lisa Sandoval. He met with N.B., L.M.E. and the children. He also administered a number of tests. N.B. completed a couple of parenting/adolescent inventories, a child abuse potential inventory and the MMPI. He also completed another personality inventory called the NEO – rating one’s self and others (L.M.E.). L.M.E. was administered the same tests except the NEO.

However, L.M.E. also completed a couple of rating scales for the children, The Burks Rating Scale for both children and a child behaviour checklist for T.L.B. only. Because she was the current custodial parent, Dr. Krywaniuk also had her complete the parenting stress inventory – a complete inventory for T.L.B. and just the child’s portion for M.A.B. [ 90 ] At page 21 of his report, Dr. Krywaniuk provided this assessment of N.B.: ...In brief, however, it appears to me that N.B. is a concerned parent who has done whatever he could to try and re-establish contact with his children and with L.M.E.

Although he was defensive in some of the testing, it was my impression that he generally was normal with regard to his psychological adjustment and that he was a bright individual who had good insight with regard to parenting.... ... From the description of Ms. Hendricks and my own observations and interview, N.B. had a positive parenting attitude and generally good parenting insight. His interactions with the children were positive, despite a situation that would be challenging to most parents. He showed a patient nature and seemed sensitive to the children’s feelings.

I did not have any indication of violence or aggression and I understand that a previous assessment considered him to be at low risk for sexual offending. As noted, he denied all of the allegations that were forthcoming from L.M.E. or the children. [ 91 ] Dr. Krywaniuk’s assessment of L.M.E. was described as “somewhat less complete although the instruments she did complete indicated normal functioning although significant level of defensiveness. [ 92 ] In his oral presentation in court, Dr. Krywaniuk testified that he found discrepancy between L.M.E.’s views, her background information and the test results.

For example, Dr. Krywaniuk pointed out that L.M.E. told him she had PTSD but the MMPI, which has a

section dealing with PTSD, was within normal limits, i.e . did not show PTSD. [ 93 ] When Dr. Krywaniuk met with T.L.B. and M.A.B. for individual interviews when they were brought to his office by L.M.E. He later observed them during a supervised visit with N.B. [ 94 ] When he first saw the children for their individual interviews, both of them launched immediately into their stories without prompting or provocation. Dr. Krywaniuk testified that the first thing that M.A.B. said to him was “I just got hurt by my biological dad, he hurt me everywhere, he was evil, he’s just like that, he was going to kill us”. Dr.

Krywaniuk testified that both M.A.B. and T.L.B. proceeded in this way, that it was as though they had this presentation prepared for him. [ 95 ] When they came for their visit with N.B., Dr. Krywaniuk noted at page 20 of his report: ...T.L.B. and M.A.B. quite clearly were determined to not respond to N.B. T.L.B. immediately sat on a chair holding a jacket and M.A.B. sat on the floor facing a wall. N.B. brought out some juice that he offered to them but which both refused. This continued for a few minutes while he talked to them quietly.

The mood was broken when one of the children loudly passed some gas, which caused everyone to begin laughing. This continued as somewhat of a theme and the mood did generally lighten. M.A.B. became much more responsive and began interacting with N.B. in a fairly comfortable fashion. He eventually began “bugging” T.L.B., to the point of wrestling with him. N.B. tried to maintain a light and positive attitude and was successful in this to some degree. At least on occasion, T.L.B. would also begin to smile or laugh although he quickly returned to his noncommittal attitude.

He kept a relatively grim look on his face and studiously avoided eye contact with N.B. He did not respond much beyond this level but M.A.B. interacted quite comfortably with his father. Neither showed any sense of anxiety or fear of him. It seemed that T.L.B. was determined to maintain a rather hostile and angry attitude towards him. Initially M.A.B. seemed to try to do so as well but his resolve broke down quite quickly. [ 96 ] In his assessment of the interview by Ms. Sandoval, Dr.

Krywaniuk , at page 20 of his report stated: ....my overall impression was that it did not adequately evaluate T.L.B.’s allegations and I would be reluctant to conclude that he was sexually abused on the basis of this 15 or 20 minute interview. Although T.L.B. did make some provocative statements, he also seemed to provide much conflicting information and said things that did not make sense. These were not followed up and it seemed that the interviewer accepted only those statements that seem to confirm sexual abuse.

[ 97 ] Dr. Krywaniuk testified that he had done a lot of sexual abuse evaluation under contract with the Ministry of Children and Families over the past 25 years. He had seen the interview of T.L.B. three times. He felt it was “a weak interview” and that the interviewer’s conclusions were based on very little data. Dr. Krywaniuk expressed doubt as to the reliability of the data obtained. For example, Dr. Krywaniuk noted that Ms. Sandoval had explained to T.L.B. the difference between the truth and a lie, but then failed to ask T.L.B. whether what he was saying was true or not. Dr. Krywaniuk also noted that Ms.

Sandoval never challenged the things that didn’t make sense to determine which part was fiction and which part was not, which was real information and which was fantasy. In Dr. Krywaniuk’s view, the interviewer had no rationale for selecting the information that fit the allegation. [ 98 ] Dr. Krywaniuk also noted T.L.B.’s demeanor during his disclosure, that he was not showing fear or anger or any emotion, and that there wasn’t a sense of him reliving a real experience or real event. [ 99 ] At page 21 of his report, Dr.

Krywaniuk concluded: It is quite evident to me that the children are alienated from N.B. and that the concerns they express are largely not their own. Consequently, it is difficult to get at the true reality behind their experiences. However, the alienation process is quite clear and the (children) present with classic symptoms of alienation that are prompted by coaching or possibly overhearing things being said. There was evidence in the background documents that L.M.E. shows little restraint about speaking in extremely graphic and negative terms about N.B. in front of the children.

It is also quite common for children to take on these experiences as their own and then form a psychological alliance with that parent, possibly as a form of self protection or protection of the parent. Quite often, the older child will then transmit a similar attitude towards the younger child, which appears to be the case in this matter. [ 100 ] Dr.

Krywaniuk recommended that: 1. the children remain in Canada and be re-integrated with the father, 2. a therapist be engaged to intervene immediately for the alienation and for their false beliefs, otherwise these beliefs will become permanent and form part of their psychological make-up, 3. L.M.E.’s contact with the children be limited to supervised telephone access for a period of time – usually 6 months but subject to the progress of the therapy and the therapist’s recommendation, 4.

L.M.E. take steps to stabilize herself psychologically in the ensuing 6 months of limited contact, The Viva Voce Testimony [ 101 ] N.B. testified that he and L.M.E. met online, chatted by phone for 5 or 6 months and met in person when her mother drove her and her younger brother to Vancouver in April, 2000. L.M.E.’s mother and brother returned to the United States leaving L.M.E. to live with N.B. They lived together for 7 years until L.M.E. left for Colorado on May 26, 2007 with their two children. N.B. denied ever physically or sexually abusing either the children or L.M.E.

N.B. described a good relationship with both the children and L.M.E., though he also described L.M.E. as being clingy, dependent and introverted. He testified that there had been no significant problems in their relationship and that he was taken by surprise when she left with the children, without any notice or warning to him. [ 102 ] N.B. testified that he first became aware of the allegations of sexual abuse of T.L.B. when the transcript and dvd of T.L.B.’s interview by Ms.

Sandoval was produced in the midst of his application under the Hague Convention in Colorado, and that there had been no allegations of sexual abuse of T.L.B. prior to this. He testified that he and his lawyer were caught completely by surprise by this and that, prior to this disclosure, it appeared to N.B. that the judge was about to order the return of the children to Canada. N.B. also testified that L.M.E. did not make any allegations of sexual or physical abuse by him of her until after he had found them in Colorado. [ 103 ] L.M.E. described an abusive relationship with N.B.

She testified that N.B. abused her regularly, beating her up at least once a week, that the abuse began shortly after she began cohabitation with him. She testified that she didn’t have a body part that hadn’t had a mark on it as a result of N.B.’s abuse. She testified that towards the end of the relationship N.B. was abusing her sexually. [ 104 ] According to L.M.E.’s evidence, the beatings by N.B. left her with bleeding and black lips, black eyes and visible bruises on her arms and legs that took weeks to heal.

She testified that she would use clothing and make-up to hide the visible injuries. [ 105 ] L.M.E. also testified that she had seen N.B. strike T.L.B. for no reason several times and that T.L.B. had reported being struck by N.B. many more times that she had not actually witnessed. She testified that there were numerous incidents during the relationship where N.B. would try to hit T.L.B. and she would use her body as a shield to protect him. [ 106 ] L.M.E. testified that T.L.B.’s disclosure of N.B.’s sexual abuse of him occurred one day while she was in transitional housing in Colorado.

That would have been over 6 months after her leaving Canada as she had lived in a shelter for the first 6 months after arriving in Colorado. She testified that she had confronted the staff at T.L.B.’s daycare about a rumour she’d heard from a neighbour about inappropriate touching of the neighbour’s daughter by a daycare worker. The staff assured her that the rumour was not true but she worried about T.L.B. and asked him if he had exposed himself to anyone, or if anyone had done anything to him or if he had seen anything strange.

A couple of hours later while putting anti-itch cream on T.L.B.’s back, T.L.B. said “my dad said the word ‘fuck’ to me a lot”. T.L.B. then told L.M.E. about a game he and his dad played called “ sucky blood” where he sucked his father’s penis and his father sucked his penis. [ 107 ] N.A.B., mother of N.B., is now retired, having worked as a French teacher for the Vancouver School Board for 32 years, the first 12 years teaching adults and the last 20 years teaching children as a supervisor/aide.

She testified that she socialized with L.M.E. while she was living in Vancouver with her son and that she babysat T.L.B. for 3 weekends a month from Saturday to Monday, once his breast feeding stopped. She testified that she never saw bruises on L.M.E. and never heard her complain about any bruising. N.A.B. testified that she would support her son and if he were to have custody of T.L.B. and M.A.B., and that she has the financial means to ensure the boys were provided with appropriate counselling. She also testified that she and her son would move in together to a house

(both she and N.B. now live in apartment dwellings) if the children came to live with them. [ 108 ] K.L. was the resident apartment manager of the building where N.B. and L.M.E. lived prior to L.M.E. leaving for Colorado. She lived there from 1985 to 2007. She testified that she saw L.M.E. frequently. She saw her when she came to pay rent, when she was doing laundry and when she went shopping. K.L. testified that L.M.E. went shopping every day and that she would always say hi to her. K.L. testified that she never saw anything amiss about L.M.E., or any physical signs on L.M.E. that would cause her any concern.

She also testified that L.M.E. never made any complaints to her. [ 109 ] K.L. said in her evidence that she never heard any complaints about the apartment they lived in from any neighbours and that, to her knowledge, the police had never been called there. Credibility [ 110 ] I found the evidence of most witnesses to be quite credible and free of inconsistencies, with the exception of L.M.E. I found L.M.E. often appeared to have difficulty processing the information in the questions put to her, even in direct examination by her own counsel.

She appeared to be very slow in answering and sometimes her answer was not responsive to the question that was asked. Her answer to numerous questions was “I can’t remember” and she testified that she had memory and concentration problems. She remembered very little of the incident where Heidi Hendricks was asked by A. to return to the house after the third re-integration visit with N.B.

I found L.M.E. often took a very long time to answer a question from counsel, sometimes taking long pauses before speaking, even in direct examination. [ 111 ] L.M.E.’s evidence also contained some glaring and, in my view, significant inconsistencies. For example she described an incident in a park with N.B., his friend L. and her, where N.B. forced the two of them to drink a bottle of vodka. She testified in cross- examination that this incident took place when T.L.B. was still a baby (T.L.B. was born [DOB]).

In contrast to her memory of more recent events, even events last July, .L.M.E. was able to remember and describe this incident in considerable detail. According to L.M.E.’s evidence, T.L.B. was being babysat by his grandmother N.A.B. and it was a medium bottle of vodka. N.B. had 5 or 6 knives hanging from his belt in sheathes. L. was on N.B.’s left and she was on his right. N.B. suddenly, without speaking or giving any warning, pulled out one of the sheathed knives hanging from his belt and cut her on the wrist. She testified that she remembered this because it occurred, “just before the vodka hit me”.

L.M.E. showed the court the scar on her wrist resulting from this incident. L.M.E. recalled going to their apartment and N.A.B. assisting her by bandaging the wound on her wrist. [ 112 ] In cross-examination it was pointed out to her that she had provided a different version when she testified in Colorado in July 2009. On that occasion, her evidence was that N.B. had pushed her and she fell on a rock which cut her wrist almost to the bone, resulting in the scar on her wrist. L.M.E. recalled that evidence and admitted that she never mentioned any knives in her evidence on July 2009.

L.M.E. testified that the correct memory was the one she has given at this trial, notwithstanding that this evidence is another 2 years removed from the date of the incident. [ 113 ] Another significant inconsistency was her evidence in cross-examination denying that she had told Ms. Hendricks, after the third re-integration visit when both boys had spontaneously hugged their father, that the boys were not allowed to hug N.B. Her answer was “of course they can hug him.” She denied it twice. [ 114 ] When N.B.’s counsel tried to put Ms.

Hendricks’ report to her, L.M.E.’s counsel objected, taking the position that this part of the report was ambiguous, and that it could be describing that it was the boys who had communicated the “no hugs” instruction to Ms. Hendricks, not L.M.E. I do not find that part of the report ambiguous. The passage reads as follows: ...I picked up the kids and their new instruction from L.M.E. was not to hug their dad because he had sexually abused T.L.B. and she felt it was unsafe for the boys to be hugged... [ 115 ] In Ms.

Hendricks viva voce testimony by telephone from Colorado, she described this incident as follows: ..The next visit they were not allowed to give dad a hug. L.M.E. had said it from behind a wall and A. repeated it. I told N.B. that and asked him to follow that request, to not have to make the boys have to make a choice. [ 116 ] These are things that I would have expected L.M.E. to have remembered. There were many other inconsistencies, both internal and external but I find these to be the most significant.

The testimony in Colorado was relatively recent and the incident concerning the “no hugs” direction was only in July of this year. [ 117 ] As a result of the inconsistencies in her evidence, I find that L.M.E.’s evidence is unreliable. T.L.B.’s disclosure of sexual abuse by N.B. [ 118 ] In my view the best evidence available to this court establishes that the disclosure by T.L.B. of sexual abuse by N.B. that was made in May of 2008 is not evidence that can be relied on. That is the conclusion of Dr. Purcell, Ms. Fadden and Dr. Krywaniuk .

I prefer their opinions over those of T.L.B.’s and L.M.E.’s therapists and support workers. I also agree with the assessment of these disclosures by Hanna Bendtsen of the Attorney-General’s office as described at page 15 of Ms. Rimar’s report: I have serious concerns about this unsophisticated report, and wonder whether the Colorado court would be prepared to reach the same conclusions as the forensic interviewer, namely that child abuse is suspected. It is difficult to understand that the sum of the interviews with the mother, and one with the child can lead to a conclusion that child abuse is suspected.

At issue are the qualifications of the “forensic interviewer”. Is this person a child psychologist? Has she received sufficient training in interviewing children who may, or may not, have been victims of sexual abuse? Is she able to ascertain when information given by a child is factual or fantasy?

There are a number of factors which give an indication that the child is not reporting actual occurrences. When the child is asked to elaborate on the sexual abuse, he responds with tales that read more like a 6 year old boy’s fantasy, than a (distant – the abuse would have happened more than one year ago) recollection of actual events. It may be that the child has been coached by the mother or that he has been asked leading questions often enough to repeat them. The mother may or may not believe that abuse has taken place. She is herself a victim of child sexual abuse by her own father.

On the other hand, she has everything to gain by presenting a picture of the father which will prevent the children from being returned to B.C. There is an inconsistency in the mother’s story as well. In one interview she says that she was putting cream on T.L.B.’s forehead, and in another she was putting cream on T.L.B.’s back. Small inconsistencies but I will leave them to someone else for comment. [ 119 ] I found Ms. Hendricks report and evidence to be insightful and probative. She was accepted as an expert in the area of child development, child development trauma and repair.

She was the only expert who had the opportunity to observe the children in a natural, unstructured setting both alone (when they were in her car) and with N.B. She spent a considerable amount of time with the children and N.B. spanning the length of five re-integration visits. She did all of her work regarding the re-integration visits pro bono. In my view she is a totally independent and objective witness. [ 120 ] L.M.E.’s counsel has submitted that the best evidence of whether T.L.B. was sexually abused by N.B. is that of Jesse Andrews, T.L.B.’s current therapist.

Jesse Andrews’ evidence is to be found in his letter of September 1 st , 2011 to L.M.E. that was included in the book of expert reports. Mr. Andrews’ letter suggests that T.L.B. not participate in any re-integration visits with his father at all, as that would be, in Mr. Andrews’ opinion, traumatic for T.L.B., whether or not any abuse took place. Dr. Krywaniuk disagrees with that opinion. I am astounded by it. Mr. Andrews clearly has not thought through what it would mean, in terms of the appropriate therapy for T.L.B., if the abuse alleged did not take place.

If the abuse alleged did not take place then the source of T.L.B.’s trauma would obviously have to be reconsidered. [ 121 ] I have little information as to Mr. Andrews’ qualifications to give such opinions. Mr. Andrews, to my knowledge, has never met N.B. or observed his interaction with his sons. There is no indication as to which, if any, of the expert reports filed in this proceeding he has had the opportunity to review. He has not commented on the observations of N.B.’s interaction with the children by highly skilled professionals.

There is no indication that he is even aware of the observations of skilled parenting and warm and appropriate interaction that was observed. There is no indication that he is aware that T.L.B. and M.A.B. did not show fear of N.B. nor did they inappropriately try to curry favour with him. I wonder if Mr. Andrews has read Ms. Hendricks’ analysis of her observations reported at page 12 of her report where she wrote: ...T.L.B.’s questions are now showing a presentational pattern as if they are both coached and rehearsed. Nonetheless, his truth at the moment is that he believes the incidents as he recalls them.

Presentationally , he seems to be mimicking someone else’s voice and someone else’s words as well as someone else’s anger and has taken it on as his own. [ 122 ] Mr. Andrews was not called as a witness and his opinions were never subjected to cross-examination. In my view, his letter of September 1, 2011 presents him more as an advocate for T.L.B. and L.M.E. than an objective expert. I find that I can place little weight on his opinions. [ 123 ] All of the experts who have observed the children with N.B. – Dr. Purcell, Ms. Hendricks and Dr.

Krywaniuk – have expressed the concern that the allegations made by T.L.B. reflect thoughts that have been planted in him by others. Dr. Purcell and Dr. Krywaniuk are psychologists. I share their concern. [ 124 ] This concern was sharply illustrated by M.A.B. in his initial meeting with Dr. Krywaniuk . Without any prompting, or any kind of segue whatsoever, before anything else was said, this exchange took place: M.A.B.: I just got hurt from my biological dad, he hurt me everywhere, he was evil Dr. K: Evil? M.A.B.: He’s just like that, he was going to kill us. Dr. K: How do you know?

M.A.B.: I don’t what to do in that ( ?phone ) room... so he won’t find me, I just throw a toy at him. My other dad is A., we are not seeing him anymore, my biological dad was being mean to T.L.B. and mommy. Dr. K: T.L.B.? M.A.B.: T.L.B. didn’t like him, because he was saying something wrong, bad dad. Dr. K: How do you know? M.A.B.: Just know. I was in mommy’s tummy when this happen. I was just little. Dr. K: Who told you? M.A.B.: Nobody. All the time he was coming and coming – he hurt us...

I remember it. [ 125 ] At this point M.A.B. launched into a story, followed by these statements: M.A.B.: He just keeps hurting us. He hurt me in the office everywhere. The one that we talked... he almost smack me in half, he got a knife... he just went over that thing that no weapons and no guns... just like... if they do that they get into jail... if they do it 2 more

times... get that knife thingy... then go to jail Dr. K: Go to jail? M.A.B.: if he just do it 2 more times. Dr. K: What did he hurt you with? M.A.B.: The knife... on my head... I was trying to get something like a weapon to kill him... Dr. K : ? happen M.A.B.: He just took the gun away... I just got the knife out – from my home & he just go... run from me... he’s following me all the time Dr. K : ? he do with the knife M.A.B.: I just cut his hair in half & he just cut my skin off... I was trying to kick him Dr. K : ? cut skin?

M.A.B. : ... right up (forehead) but I just took his skin off and put it on me... so it can’t hurt... [ 126 ] Clearly these allegations by M.A.B. against N.B. could not be true. There had been no contact between M.A.B. and his father from the last visit with Ms. Hendricks to the meeting supervised and observed by Dr. Krywaniuk . All visits with his father after L.M.E. left the home in Vancouver on May 26, 2007 have been supervised by professionals, all of whom had observed only appropriate conduct and good parenting on the part of N.B. towards both T.L.B. and M.A.B.

M.A.B. was only 5 months old when L.M.E. left with the children to Colorado. Clearly these thoughts could not be his own. M.A.B. is not expressing his own memories. Clearly someone has planted these thoughts in M.A.B. [ 127 ] L.M.E. expressed her opinion that the thoughts could have been transmitted from T.L.B. I have doubts about that theory. Those thoughts were not planted in M.A.B. back in July of this year when the re-integration visits with Ms. Hendricks were occurring. It was evident from Ms.

Hendricks report of the incident following N.B.’s third visit with the children in Colorado last July that L.M.E. has no compunction about speaking graphically, negatively, and in emotional terms of allegations of N.B.’s abuse of her and T.L.B. in front of her children. [ 128 ] I find this exchange between M.A.B. and Dr. Krywaniuk reminiscent of T.L.B.’s interview by Ms.

Sandoval where T.L.B., with virtually no prompting, and without a question being asked, right at the beginning of the interview, states that his father was going to stab him and cut his throat. [ 129 ] If these thoughts were in fact transmitted to M.A.B. by T.L.B. then that is even more concerning and unsettling, as it would mean that T.L.B. is responsible for planting false memories and thoughts of the most fantastic sort into M.A.B. – false memories and thoughts of abuse by N.B. against them. [ 130 ] I note that in all the interaction between N.B. and his children, that has been observed and written about by the professionals, the childre

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