J.M. v. R.B. Date:, 2014 BCPC 269

Citation: J.M. v. R.B. Date: 20140704 2014 BCPC 0269 File No: 15621 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M. APPLICANT AND: R.B. RESPONDENT ORDER OF THE HONOURABLE JUDGE G. BROWN Counsel for the Applicant: J. Chadola

Counsel for the Respondent: N. Hair Place of Hearing: Abbotsforfd , B.C. Dates of Hearing: December 12, 2013, February 5, 28, March 14, June 25, July 4, 2014 Date of Order: July 4, 2014 [ 1 ] THE COURT : These are my reasons for judgment in family file R.B. v. J.M., file number 15621. INTRODUCTION: [ 2 ] J.M. and R.B. are the parents of K.B., born 2006. K.B. is currently seven years old. J.M. has been the primary caregiver for K.B. and R.B. used to have overnight weekend visitation with his daughter. The father's visitation drastically changed following disclosures made by K.B. in the spring of 2013.

K.B. first disclosed to her Grade 1 teacher that her father touched her inappropriately. About one month later, she told J.M. that her father had taken her clothes off and wouldn't let her put them back on. K.B. further told her maternal grandmother that R.B. took pictures of her with her clothes off. K.B.'s behaviour also deteriorated. [ 3 ] R.B. had no contact with his daughter for a time following these disclosures and thereafter was only given supervised visitation. The Ministry for Children and Families conducted an investigation but did not find there to be protection concerns.

The Abbotsford Police Department also did an investigation which included the execution of a search warrant of R.B.'s premises. No evidence of criminal behaviour was located. More recently, Dr. Elterman did an assessment and he recommended that R.B.'s visitation be reinstated. ISSUES: [ 4 ] The legal issue is to determine what visitation or parenting time is appropriate for the father, R.B. The underlying issue is whether or not he acted inappropriately with his daughter and whether he poses any real risk to her.

As always, my only guide is the best interests of K.B., as defined in s. 37 of the Family Law Act . [ 5 ] There is also an issue about guardianship of K.B. BACKGROUND: J.M. : [ 6 ] The mother, J.M., testified. She is 36 years old. Since 2005, she was in an "on-and-off" dating relationship with R.B. K.B. was born of this dating relationship in 2006. R.B. did not reside with J.M. and K.B. after the child's birth and J.M. alleges that R.B. called her names at the time of K.B.’s birth. Thereafter, J.M. and R.B. maintained a friendly relationship and R.B. saw K.B. regularly.

There was some hope they would become a family but that never materialized. [ 7 ] During K.B.’s kindergarten year, R.B. had overnight weekend access. His access is now supervised due to disclosures made by K.B. K.B.'s disclosures were first made to her Grade 1 teacher, Ms. K., in April of 2013. During the teacher's program about good and bad touching, K.B. stood up and said, "Daddy touches my pee-pee and bum-bum all the time." I should add that these are the words, as described by the witness, J.M.

The Grade 1 teacher discussed the disclosure with J.M. but it was decided at that time to give R.B. the benefit of the doubt. However, shortly after K.B.’s disclosure to the teacher, her behaviour deteriorated; she was acting poorly, crying for no reason and biting her fingernails. [ 8 ] In May of 2013, K.B. disclosed to her mother that she had been cold because her dad had taken her clothes off and would not let her put them back on. J.M. also noticed that K.B.'s vagina was raw after a visit with her father. [ 9 ] K.B. had also disclosed to J.M.'s mother that her dad takes pictures of her with her clothes off.

These disclosures were reported to a social worker and the police. [ 10 ] J.M. also noticed that K.B. was acting out with sexualized behaviour. K.B. would, for example, straddle J.M.'s male friends. [ 11 ] The police investigation took some time. No criminal evidence was found on R.B.'s computer and nothing incriminating was found in his premises. Since the disclosure, K.B. has been in counselling.

R.B.'s visits are supervised but J.M. felt that K.B.'s behaviour once again deteriorated as soon as K.B. saw her father regularly. [ 12 ] J.M. was also not terribly happy with the access supervisors, as they have allowed R.B. to provide gifts and he has whispered things to K.B. J.M. did not feel that R.B.'s parents would be appropriate supervisors as they would not provide constant, careful supervision. J.M. did indicate that K.B. sometimes has an overactive imagination. For example, she would say she had a puppy if another child had a puppy. J.M. also admitted that her ex-boyfriend, T. N., had a criminal record.

J.M. also stated that R.B. belonged to a sex bondage club because she found a copy of a bondage contract. B.B. (mother of J.M) : [ 13 ] B.B. is the mother of J.M. and she also gave evidence. She is a special education assistant and she is well-acquainted with the Good Touching - Bad Touching program in the primary grades. She explained that when a child makes a disclosure to a teacher, there is a duty to report to the Ministry. She was firmly of the view that K.B.'s teacher should have reported the disclosure to the Ministry and not to J.M., her daughter.

[ 14 ] On May 14th, 2013, K.B. was at B.B.'s home and she disclosed that, "Dad took videos of me naked and with a red dress. He made me pose for the video." K.B. detailed the poses she did for her father. Secondly, K.B. disclosed to B.B. that her father takes pictures of her in a bra and underpants and then dresses and that her father is making a magazine and he has sold 9,000 copies. [ 15 ] K.B. further disclosed that R.B. shows the pictures of her with clothes on to Granny and Grampy but he keeps the photographs of her naked for himself. R.B. said to keep this secret.

K.B. also spoke of a secret room. [ 16 ] B.B. reported the disclosures to the Ministry. The police also interviewed B.B. and J.M. There was a video interview of K.B. B.B. says the police felt "something happened". The police also explained to her their investigation, including executing a warrant. K.B. was also taken to the HEAL Clinic. [ 17 ] B.B. also observed that K.B. was exhibiting odd behaviours. These behaviours included spreading her bottom apart, pulling her vulva apart, biting her nails, touching her nipples.

These behaviours stopped when there was no contact between K.B. and her father but they started up again when R.B. got supervised visits. [ 18 ] B.B. did admit that K.B. missed her paternal grandparents. She realized R.B.'s father was a vice-principal. B.B. also conceded that K.B. may say things to "fit in" but she denied that K.B. made up stories. R.D., Social Worker : [ 19 ] R.D. is a social worker with the Chilliwack Ministry for Children and Families. He was assigned this file in the spring of 2013.

I should add that I ordered disclosure of the Ministry file, as well as the RCMP file, for use in this proceeding. [ 20 ] R.D. was aware of K.B.'s disclosures and that they included R.B. touching K.B. on her vagina and bum in the bathroom and R.B. taking photos of her with and without clothes. R.B. was also alleged to have the photographs on his computer and there was a secret room. R.D. heard K.B.'s interview conducted by the RCMP on May 16th, 2013. [ 21 ] R.D. subsequently spoke with R.B. and R.B. denied any and all allegations. By that juncture, the RCMP had already executed a search warrant of R.B.'s home.

No evidence of pictures or other indicators of sexual abuse was found. There was some adult pornography. Medical reports revealed no evidence of sexual abuse. [ 22 ] R.D. did inform J.M. that he did not believe K.B.'s disclosures of sexual abuse. There were far too many inconsistencies and the child had a history of making up stories. R.D. had a lot of experience with child sex abuse files. In this case, he received a report, he responded immediately, interviews were conducted and collateral checks were completed.

Despite the fact that K.B. made no retraction, the allegation of sexual abuse was not substantiated, in R.D.'s opinion. He reiterated that the RCMP found no evidence and no secret room. R.D. conceded that it was always a concern when there is an allegation of a secret between father and child but the investigative tools used did not produce any proof of sexual abuse. R.D. went so far as to say he felt "nothing happened" and he closed the file. [ 23 ] In cross-examination, R.D. said that he had no protection concerns with R.B. based on the totality of the evidence.

He felt R.B. could have unsupervised overnight visits. Ms. K., Grade 1 Teacher : [ 24 ] Ms. K. was K.B.'s Grade 1 teacher and she has been a teacher since 1986. She testified about the c.a.r.e. program she was instituting in K.B.'s class. This course deals with such topics as good and bad touching, body parts and stranger danger. While Ms. K. was discussing inappropriate touching, K.B. said, "My dad touches me like that." K.B. had never said this sort of thing previously and Ms. K. was not shocked. She had "been through this before". [ 25 ] Ms. K. reported the disclosure to J.M. and not the principal.

She agreed that the protocol is to inform both the parent and the principal. However, in K.B.'s case, both Ms. K. and J.M. decided they did not want to be panicky. The child showed no other signs of abuse while in class. [ 26 ] Ms. K. also took into account K.B.'s history of not telling the truth. For example, K.B. has said, "I went to Disneyland, too," or, "I have a cat, too," when such statements were clearly untrue. She even once said that her mom was dead. [ 27 ] Ms. K. admitted that she took a wait-and-see approach because of the consequences of a false accusation. In cross-examination, Ms.

K. said that K.B. was never acting inappropriately and she was an intelligent girl who sought attention. K.B. was a chronic storyteller. Even when inappropriate touching was brought up in class the next day after K.B.'s disclosure, K.B. said nothing. Cst. Gray : [ 28 ] Cst. Gray of the Chilliwack RCMP gave evidence, as he was a partial lead investigator for the sexual abuse allegations concerning K.B. He indicated that the statements from J.M. and B.B. together with the video statement from K.B., was sufficient evidence to obtain a search warrant of R.B.'s residence.

The main concerns from the interview were K.B.'s disclosure that R.B. touched her inappropriately in the bathroom and that he took photos of her with clothing and without clothing. [ 29 ] A thorough search of R.B.'s residence was conducted and nine exhibits were seized, including a hard drive, camera, iPad, two laptops and three cell phones. No incriminating evidence was found and the Technical Unit did a full investigation. One image of female genitalia was discovered but it was not believed to be child pornography. [ 30 ] Cst. Gray reiterated that the search was thorough.

K.B. had made reference to a smashed camera. No such camera was found. Cst. Gray admitted it was always possible that a memory card for a camera could be hidden. Because no incriminating evidence was found, the RCMP did not interview R.B. In cross-examination, Cst. Gray agreed that the RCMP concluded that the allegation was unfounded. He also confirmed that the Tech Unit would have been able to retrieve any deleted items on electronic devices. He also

admitted that R.B. was cooperative with the RCMP during the execution of the warrant. Ultimately, no charges were forwarded to Crown counsel. Cst. Lounsbury : [ 31 ] Cst. Lounsbury of the RCMP also gave evidence that she conducted the video interview with K.B. on May 16th, 2013. Cst. Lounsbury had StepWise training for interviewing children. Cst. Lounsbury felt K.B. gave a credible statement. K.B. was six years old at the time of the interview and she gave good examples of the difference between the truth and a lie. Her statement appeared consistent.

K.B. could distinguish between a dream and reality. [ 32 ] I will discuss the video interview below but Cst. Lounsbury indicated it took a while for K.B. to feel comfortable. K.B. spoke of a secret and discussed posing for her father. Eventually, K.B. disclosed that she was wearing nothing during some of the poses. According to the constable, there was nothing in the interview to suggest K.B. was lying. She was a bright, articulate child and she squirmed around more at the time she spoke of the "secret". [ 33 ] During cross-examination, Cst.

Lounsbury said that K.B.'s description of her father touching her was in a bathing context but K.B. said the touching was without soap. Cst. Lounsbury conceded there were some inconsistencies between K.B.'s disclosure to her grandmother and what she said in her video statement. K.B.'s Video Statement : [ 34 ] The DVD containing the video and audio-recorded statement of K.B. was marked as Exhibit 2 in this proceeding. Sometime was spent by Cst. Lounsbury at the interview in discussing the difference between the truth and a lie. K.B. was a very talkative child.

K.B. described the living arrangements at both her mother's home and her father's home. Early on, she laughed comfortably when speaking of her father. She was obviously familiar with body parts. She mentioned that a boy, X., pulled down his pants and showed his penis. When discussing her father's place in more detail, K.B. did say she did not feel safe regarding the pipes, the basement and a spider. She also described a zombie dream. [ 35 ] She did not initially disclose anything else concerning her father.

She later does disclose that her father touches her in the nipples and vagina when in the shower and it makes her feel dizzy and embarrassed. K.B. later said that her father made her pose in a red dress and kept the picture for himself. When mentioning Dad's secret about the poses, K.B. initially said she could not remember the poses. She then said she sometimes takes poses and her father deletes the pictures. A lot of the poses made her feel sad or mad. She has posed in a red dress and a cupcake dress. [ 36 ] At one point, when K.B.'s discussing the secret, she said she forgot the secret.

However, K.B. went on to say that when she is posing, her dad has a secret machine. She likes posing wearing a dress, leotards and fancy shoes. She then returned to the topic of her father lying to her about a machine he built regarding the pictures. [ 37 ] In my view, K.B. took a long time to eventually disclose that her poses included times when she wore no clothes. She then said her father deleted some of the pictures. K.B. seemed more concerned about her dad lying about the machine than about the poses.

She also said her dad smashed his camera. [ 38 ] Later, K.B. clarified that her father touched her private parts in the bathroom with no soap. This touching was a long time ago. She said her mommy also touches her when she washes her and it is not inappropriate. K.B. did make it clear that her dad touches her vagina and her nipples only when in the bath. B.C., School Principal : [ 39 ] B.C. is the principal of K.B.'s school and she gave evidence as to the protocol when a student reports sexual abuse.

According to B.C., the disclosure is to be immediately reported to the administrator, i.e., her, and Social Services. The teacher should not talk to the parent. It is not up to the teacher to determine if the disclosure is true or not. [ 40 ] Although K.B. made her disclosure to her Grade 1 teacher in May of 2013, B.C. was not aware of the disclosure until June of 2013, just before summer break. The teacher, Ms. K. waited to inform the principal because she did not find K.B. to be credible. Ms. B.C. felt the teacher did not act appropriately. R.B. : [ 41 ] R.B. testified.

He is now 44 years of age and he is a recreational vehicle technician. He explained that he now pays $300 per month in child support and he has always paid child support since K.B.'s birth. He also has K.B. on his medical-dental plan and he pays for other incidentals. R.B. provided a brief history of his relationship with J.M. He was present for K.B.'s birth in 2006 and he said there was an argument at the hospital. His relationship with J.M. was an ongoing process and he started having weekend visits with K.B. in June or July of 2012. Couples counselling was attempted without success.

There were also a couple of attempts for the family to live together but they were short-lived. [ 42 ] With respect to the sexual bondage contract allegation, R.B. says this was more of a joke than a serious contract. He and some friends, including two women friends who are lesbians, had been to an adult event where there were these submissive/dominant agreements. R.B. apparently signed an agreement with one of the lesbian women to make the other woman jealous. [ 43 ] The RCMP records concerning R.B.'s Samsung cell phone demonstrate that he and J.M. communicated by texts regularly, sometimes with affection.

They also discussed K.B. In the past, R.B. cared for K.B. many times while J.M. was at work. There were also times when he attended K.B.'s medical appointments. [ 44 ] R.B. had filed a court application in 2007 but he never served it until May of 2013 (or at least proceeded with an application

until May of 2013) when he realized there was no chance he would be together with J.M. [ 45 ] R.B. described K.B. as very smart and very articulate. K.B. likes performing and her sense of humour is well beyond her years of age. K.B. loves to play a character and become that person, for example, Katniss from The Hunger Games. [ 46 ] K.B. has said things which were not true. For example, she claimed that she had been spanked by one of J.M.'s male friends, whom she did not like. In terms of inappropriate behaviour, K.B. has mentioned words like "vagina" and "penis" and she could be provocative at times.

For example, she could run out of her room without clothes on. R.B. also maintains that K.B.'s nail-biting is nothing new. [ 47 ] R.B. was not aware K.B. went through the c.a.r.e. program in Grade 1 until afterwards. He was not aware of K.B.'s disclosure until notified by the police. He denies taking photographs of K.B. without her clothes on. He also does not own any type of magazine- printing machine. R.B. surmises that K.B. may have got this magazine idea from the lyrics of a guitar song he was teaching her. [ 48 ] R.B.'s last unsupervised visit with K.B. was on the Mother's Day weekend in May of 2013.

That evening, R.B. laid out K.B.'s clothes while she had her bath. He had stepped out for a cigarette and then found K.B. on the phone with her mother with no clothes on. He told K.B. she needed to get up and get her clothes on. K.B. finished her conversation with her mother and put her pyjamas on. [ 49 ] In terms of photographs, R.B. says he took a picture of K.B. rollerblading but his parents take most of the pictures. His mother has taken a picture of K.B. in a red dress but he has not taken any such photos.

He admits K.B. is a "ham" and she likes to pose. [ 50 ] In terms of bathing, R.B. asserts that K.B. washes herself but he will help her in and out of the tub. K.B. likes her time in the tub and he will not stay in the bathroom but he is close by. He has washed K.B.'s hair. [ 51 ] R.B. lives in the basement suite of his parents' home in Chilliwack and his parents come down often. [ 52 ] R.B. is concerned about J.M.'s ex-boyfriend, Tom.

According to J.M., Tom was quite violent with her and he had drug issues. [ 53 ] R.B. feels that K.B.'s disclosure may be the result of a schoolmate, who he called M., I believe, who is an outspoken, rude and provocative child. [ 54 ] R.B. admits he once argued with J.M. in the truck and K.B. overheard. He now makes every effort to not argue in front of the child. [ 55 ] With respect to the police investigation, the police executed the search warrant before he got home. Everything electronic was seized and searched.

R.B. has no criminal record other than a public mischief conviction in 1997 when he was being a smart aleck with the police. [ 56 ] Once the police and Ministry investigations were concluded, R.B. was led to believe his unsupervised visitation with K.B. would be restored. This has not happened. R.B.'s visits were initially supervised by WestCoast FamilyLink and they were usually for three hours on Sundays. The charge-out rate is $40 an hour.

R.B. denies that he ever tried to whisper to K.B. during a visit. [ 57 ] On March 14th, 2014, I varied R.B.'s visitation on an interim basis to allow for Sunday visits from 10:00 a.m. to 7:00 p.m. with one of the paternal grandparents always being present. The grandmother was to attend to K.B.'s bathroom routines and bathing. [ 58 ] R.B. wishes to have his bi-weekly weekend visits restored from Friday after school to possibly Monday before school.

He also seeks to be a guardian so he can be more involved in K.B.'s schooling and counselling. [ 59 ] In cross-examination, R.B. said that the image of a vagina found on his Samsung cell phone, and dated sometime in September 2011, was, in fact, a picture of J.M. R.B. asserts that the parties had just been intimate and that it was J.M. who wanted a picture of herself because she was sore, swollen. There is a light scar on the picture indicative of a past Caesarean Section. In rebuttal, J.M. denies that the picture is of herself.

She never allowed herself to be photographed in that way. [ 60 ] In cross-examination, R.B. also confirmed that everything he had was located at his parents' home when the warrant was executed. He does not own a locker, he has no other cameras and he never smashed a camera. R.B. also admitted that he used handcuffs with J.M. to "spice things up" but K.B. was not exposed to this. It is clear from the texts sent by J.M. that she was consenting to some rough sex (see page 214 of Exhibit 1). [ 61 ] R.B. also denies that K.B. would have access to any pornography.

In rebuttal, J.M. stated that R.B. did have some S&M toys and pornography. There really was no suggestion that K.B. was exposed to any such sexually-explicit material. [ 62 ] R.B. also denied ever telling K.B. to keep a secret or that he had a secret place. He has not had any discussions about sex with K.B. R.B. also noticed years ago that K.B. had a habit of grabbing her crotch. [ 63 ] Since the disclosure in May of 2013, R.B. feels K.B. is more "clingy" than before. K.B. has a history of telling stories, including that her mother was dead or that her mother was pregnant.

S.B., mother of R.B.: [ 64 ] S.B. is the mother of R.B. and a paternal grandmother to K.B. She and her husband, K.B., live on the top floor of their Chilliwack home; R.B. lives in the basement. S.B. is a retired school clerk. [ 65 ] S.B. described her son's relationship with J.M. as more stormy as time went on. The relationship disintegrated in June of 2012 and thereafter, K.B. actually came over more often, usually every second weekend.

[ 66 ] S.B. feels her son is very patient with K.B. and he is very involved. S.B. would often go downstairs with her son and K.B. to be part of the fun. Her pantry and her husband's shop are also downstairs. [ 67 ] S.B. did not notice any abnormal behaviour on K.B.'s part. K.B. was happy to see R.B. K.B. was non-compliant at times but there was no sexualized behaviour. K.B. was a gregarious, theatrical child. K.B. would make up stories and some were real "whoppers".

Once K.B. said, "Mommy has a baby in her tummy," when this was not true. [ 68 ] Following the disclosure and the hiatus in visitation, K.B. really missed her paternal side of the family and she was almost clingy when visits resumed. During K.B.'s visit with her son in May of 2013, K.B. was non-compliant with her bath. S.B. heard her son say, "K.B., we've been through this. It's getting late." K.B. did not want her hair dried or to change into her pyjamas. [ 69 ] K.B. enjoys having her picture taken and she is a fashionista. S.B. bought K.B. the red dress.

In cross, S.B. admitted there were times when K.B. was alone with her father. However, the B.’s Sr. travel only a few times a year. K.B. Sr., father of R.B. : [ 70 ] K.B. Sr. is the father of R.B. and he confirmed the living arrangements in Chilliwack. He is a retired school principal. He described his son and granddaughter as having a normal loving relationship. K.B. Sr. does not go downstairs very often when K.B. is there but he is in and out to go to his workshop and the backyard. According to K.B. Sr., K.B. is a loving child and she likes playing with her father and reading to him.

K.B. can create stories such as saying she washed her hands when the sink is dry. [ 71 ] He said as far as the supervised visits were concerned, K.B. was happy to see them and unhappy to leave. K.B. Sr., has taken photographs of K.B. and she poses for the camera. K.B. Sr. finds the sexual abuse allegations very hard to believe. He sees no need for his son's visits to be supervised. Dr. Elterman : [ 72 ] Dr. Elterman, a well-known clinical and forensic psychologist, wrote a psychological assessment of R.B., J.M. and K.B. on May 15th, 2014.

He reviewed the RCMP interviews and some RCMP records, plus some Ministry materials. He conducted interviews and did some psychological testing for each parent. He also spoke to collaterals. [ 73 ] Dr. Elterman interviewed K.B. on two occasions. On the first occasion, the mother brought K.B. and on the second occasion, Dr. Elterman asked that R.B. bring K.B. and this was done with the supervision of his parents. [ 74 ] In the first interview, K.B. said that no one had touched her bum or vagina.

She initially denied that there was a good touching - bad touching course but later said that she told the teacher that her dad didn't touch her there. She said she was not photographed naked. [ 75 ] In the second interview with Dr. Elterman, K.B. cried at one point and said that she did say it (i.e., bad touching) happened to her teacher but it did not. After telling a lie, she could not tell the truth and also not get in trouble. She also said she did not tell the truth to the police. [ 76 ] Dr. Elterman's report concludes that the sexual abuse allegations are more likely improbable than probable.

He based this not only on the child's interview but also on the lack of evidence, his assessment of R.B. and K.B.'s history of misstating the truth. Dr. Elterman recommends a reinstatement of R.B.'s visitation. [ 77 ] There was some controversy about K.B.'s second interview with Dr. Elterman. According to J.M., K.B. said to her that her father had said she was in big trouble if she did not say it was a lie. Consequently, she told Dr. Elterman she lied about the disclosure. [ 78 ] K.B.'s second interview with Dr.

Elterman was May 3rd, 2014, and K.B. made these statements to her mother on May 21st or 22nd, 2014, just after Dr. Elterman's report was released. [ 79 ] K.B.'s counsellor gave evidence that K.B. also told her on May 28th, 2014, that if she did not say it was lie, she would be in trouble. This statement was reported to the police and Ministry. K.B. had not made this sort of statement to the counsellor earlier in the month of May. [ 80 ] For his part, R.B. said he did take K.B. out to see Dr. Elterman on May 3rd, 2014. His father drove and R.B. was in the front passenger seat.

K.B. was in the back seat with R.B.'s mother. R.B. never said anything to K.B., as was alleged. R.B. was not even aware K.B. was going to be interviewed alone with Dr. Elterman. Dr. Elterman said it was perfectly acceptable for him to ask that each parent bring the child to an appointment to keep things balanced. [ 81 ] On the second interview, K.B. was fine when she came in but she cried when discussing about not telling the truth and the consequences. Dr. Elterman was not prepared, during his testimony, to change his opinion notwithstanding the controversy surrounding K.B.'s second interview. [ 82 ] Dr.

Elterman also made it clear that although K.B. was exhibiting some unusual behaviours, like straddling a man's lap, K.B. showed no sexually-specific symptoms such as insertion, masturbation or sexual acts. He found it unusual that K.B. fabricated stories without any apparent motive. He felt K.B. made a credible retraction during the second interview. He did not feel K.B. was primed by anyone. Analysis : 1. Does R.B. pose a real risk to his daughter, K.B.? [ 83 ] I want to say at the outset that I view the mother, J.M., as a good parent, who has been the primary caregiver for K.B.

I also find that she acted appropriately when faced with the disclosures of sexual abuse made by K.B. The police, the Ministry and Dr.

Elterman have assessed K.B.'s disclosures very closely. Further, this trial has been allowed to unfold so as to make sure no stone was left unturned when it came to K.B.'s safety and best interests. [ 84 ] That all being said, based on the totality of the evidence here, I find K.B.'s disclosures of sexual abuse at the hands of her father to be highly improbable. My reasons are as follows: 1. To begin with, K.B.'s Grade 1 teacher found K.B.'s disclosure during the c.a.r.e. program to be suspect.

After explaining inappropriate touching, the teacher heard K.B. say, "My Dad touches me like that." To the teacher, K.B.'s statement was very akin to fabrications she had made in the past like, "I have a cat, too." The teacher did not follow protocol because she was acutely aware of the consequences of a false accusation. She knew K.B. was a chronic storyteller. I have some sympathy for the teacher here.

She did not blindly follow the protocol because she knew the consequences and, unfortunately, R.B. has now suffered these consequences: a Ministry investigation, a search warrant on his home and most concerning, reduced time with his daughter. There are two other points of interest concerning K.B.'s disclosure to the teacher. First, even the mother, J.M., decided to take a wait-and-see approach after learning of this disclosure. J.M. had some awareness of K.B.'s penchant for storytelling.

Secondly, it is very telling that K.B. does not repeat her disclosure the next day in class when the topic of bad touching is again discussed. 2. I found it remarkable that Social Worker R.D. said not only were there no protection concerns in this case but also he felt nothing happened. Social Worker Downing had heard K.B.'s interview with the RCMP and he looked at all other RCMP evidence and the child's medical exam. For R.D. the allegation of sexual abuse was not substantiated and he felt R.B.'s overnight visits should be restored. Rarely have I seen a social worker stick his neck out that far.

I agree with the social worker's assessment and I have even a greater body of evidence to consider. 3. The RCMP executed a search warrant of R.B.'s premises and no incriminating evidence was found despite a thorough search and the analysis of all electronic devices by the Technical Unit. I do not consider the photograph of female genitalia to be child pornography. The RCMP would have been able to retrieve deleted items on R.B.'s computer, laptop, cell phones and the like. No disturbing photos of K.B. or any other child were found. According to Cst. Gray, the RCMP ultimately concluded the allegation was unfounded.

I recognize that it is possible R.B. could have devices elsewhere but he denied this. I would have thought deleted items in the electronic materials seized would have revealed something incriminating if R.B. was a sex offender. K.B. also said there was a secret room in the house and that was never found. 4. The Grade 1 teacher, R.B. and his parents and even J.M. admit K.B. is a known storyteller. These fabrications are sometimes of the white lie variety such as, "I have a cat, too," or, "I went to Disneyland, too." Other stories are more serious. For example, K.B. saying that her mother is dead. Dr.

Elterman discusses at page 15 of his report that K.B. was feeling trapped to the extent that she realized there were serious consequences when she found herself caught up in an increasingly elaborate story about the purported inappropriate behaviour of her father. 5. Dr. Elterman discusses his second interview of K.B. at pages 10 and 11 of his report and he found that K.B. made a credible retraction of her earlier disclosure. When K.B. said it did not happen, she was crying. She explained that after telling a lie, she could not tell the truth and also not get in trouble. 6.

I appreciate that both J.M. and B.B. saw a deterioration in K.B.'s behaviour after her disclosure to the Grade 1 teacher. K.B. was acting poorly, crying for no reason and biting her nails. She was also straddling men in a peculiar way. However, I agree with Dr. Elterman that there is no evidence of sexually specific symptoms like insertion or masturbation. I also agree that some of K.B.'s distress may be connected to her being caught up in an increasingly elaborate story. 7. As both counsel suggested today, I must consider K.B.'s disclosures in the context of all the evidence, including Dr. Elterman's report.

Of course, Dr. Elterman found the disclosure to be improbable. I appreciate that both J.M. and her mother found K.B.'s disclosures to be believable and very concerning. Cst. Lounsbury also felt that K.B.'s video statement was credible. Cst. Lounsbury has experience interviewing children. This did give me pause for concern but Cst. Lounsbury dealt with the interview mainly in isolation and not in the context of all the other evidence. K.B. did not express a fear of her father during the interview. I also agree that Cst.

Lounsbury had more pointed questions towards the end of the interview. [ 85 ] Again, when I balance the evidence of disclosures to J.M., B.B. and Cst. Lounsbury against the balance of the evidence, I find K.B.'s disclosures to be highly improbable. I also found R.B. and his parents to be credible witnesses. The grandparents, especially the grandmother, were often going down in R.B.'s basement residence. I was not concerned about R.B.'s sexual activities which were between consenting adults. K.B. was not exposed to these adult activities. [ 86 ] The totality of the evidence also, of course, includes Dr.

Elterman's report and his viva voce evidence at trial. I hasten to add that K.B. even said in her first interview with Dr. Elterman that her father did not touch her inappropriately. J.M. brought K.B. to that interview with Dr. Elterman. K.B.'s more full retraction occurs in the second interview and, like Dr. Elterman, I believe it is improbable that K.B. was primed by her father to make that retraction. R.B. did not realize that K.B. would be interviewed privately by Dr. Elterman. [ 87 ] I read from the last paragraph at page 14 of Dr.

Elterman's report, as well as the next paragraph: When one considers the evidence to identify whether an allegation is probable or improbable, one looks at things such as the medical evidence, the behavioural indicators suggesting distress, behavioural indicators suggesting sexual behaviour and also the actual statement by the child. In this instance, it is my opinion that the allegation is more likely improbable than probable.

I based this not only on the child's statement to me about having lied about what R.B. did but also on the lack of evidence, my assessment of R.B. and his attitude towards the child and the history of K.B. making similar types of statements before. When K.B. says that she said this had happened to her, also, this was consistent with past behaviour but in this instance she found herself in a situation where she could not take back what she had said.

I believe that the distress that is described by J.M. is likely a result of K.B. feeling trapped to the extent that she realizes that there are serious consequences and she found herself caught up in an increasingly elaborate story about what had taken place. She then was not able to see her father and then to see him in a restricted way. I think that it is more likely that the behaviour shown by K.B. after May was the result of a child feeling that she was upset at what she had said and the fear of disclosing that it had not been true.

It would be my recommendation to reinstate R.B.'s access. [ 88 ] Based on all the evidence, including Dr. Elterman's report, I am reinstating R.B.'s visitation. I do not believe R.B. is a real risk to K.B. I am concerned about how his visits proceed in the future and though I make no orders in this regard, R.B. will have to proceed carefully and he may want his mother nearby as a witness. [ 89 ] I also think K.B.'s counsellor should be given Dr. Elterman's report and a copy of my decision and she should have communication with the father, R.B. 2.

Guardianship : [ 90 ] Based on s. 39(1) of the Family Law Act , J.M. is a guardian of K.B. She has been the child's primary caregiver since birth. This ruling is not necessarily as straightforward as it should be because s. 39(1) speaks of parents living together and then separating. The parents were not actually living together in this case when K.B. was born. However, I take a broad reading of s. 39(1) to mean a parent who resides with the child after birth is a presumed guardian. [ 91 ] Based on s. 39(3)(

c) of the Family Law Act , I also find R.B. to be a guardian. He has regularly cared for K.B. even though his visits have recently been more restricted due to the allegation. I obviously would not be making this order if I had ruled differently concerning his risk to K.B. I am of the view R.B. regularly cared for K.B. because he was having visits every second weekend from mid-2012 until the allegations arose in the spring of 2013. He also saw K.B. on a less-structured basis prior to 2012. Furthermore, R.B. has K.B. on his medical-dental plan and he pays child support. He has been to some of her medical appointments. [ 92 ] In my view, "regularly cares for" under s. 39(3)(

c) does not require something like 40 percent of time with the child. It is a fact- driven analysis based on the parent's regular involvement with the child. [ 93 ] In terms of parental responsibilities, I have included in my order a dispute resolution mechanism which favours the mother but allows father to review the decision in court. ORDERS: [ 94 ] Based on the above analysis, these are my orders.

This is simply a recital: A-1: Upon the court being advised that the name and birth date of each child is as follows, and that would be K.B., born 2006; B-1: This court is satisfied that J.M. is a guardian of the child under s. 39(1) of the Family Law Act ; B-2: This court is satisfied that R.B. is a guardian of the child under s. 39(3) of the Family Law Act ; C-1: Under s. 40 (3)(a), J.M. will have all of the parental responsibilities for the child.

During R.B.'s parenting time, he may exercise the parental responsibility of making day-to-day decisions affecting K.B. provided however that he must advise J.M. of any matters of a significant nature affecting the child occurring during his parenting time. [ 95 ] This is not part of my order but in my view I think that covers his major guardianship responsibilities.

Just to be clear about one thing, I am also going to add in that the father has the further parental responsibility of requesting and receiving from third parties health, education or other information respecting the child. [ 96 ] There will be a further order that if a guardianship issue remains unresolved, then J.M. is authorized to decide the issue in dispute and R.B. may, under s. 49 of the Family Law Act seek a review of this decision if he believes it is contrary to the child's best interests. [ 97 ] The order should further say J.M. shall have the primary residence for the child. [ 98 ] R.B. shall have parenting time with the child to include: 1.

Every second weekend from Friday after school (or 3:00 p.m. if there is no school) to Sunday at 7:00 p.m., commencing July 4th, 2014, and every second weekend thereafter. 2. Such further and other times as agreed to by the parties. [ 99 ] That is all the order is going to say but I am going to just add this to my reasons. I want the parties to digest my decision. I am also going to order a copy of this as a transcript and you will get it in a few weeks. I want to see if the parties can come up with an agreement about holidays and special times, such as Father's Day, Mother's Day, and child’s birthday.

If the parties cannot come to an agreement, the matter can come back before the court. I do not think I need to be seized because the decision will be on file when it is ordered and vetted. [ 100 ] Now, finally, I seek submissions from counsel. I have already made a past order regarding how the parties will deal with themselves and the child, and that was made June 25th, 2014. Do the parties want me to repeat it into this order because that is only

interim? [ 101 ] MS. CHADOLA: That's fine with J.M. [ 102 ] THE COURT: Okay. [ 103 ] MS. HAIR: I think my client would like for it to be put in this -- this final order, Your Honour. [ 104 ] THE COURT: All right. I am hearing agreement. The further order will be a repeat of the June 25th, 2014, order. 1. Each party will: (

a) put the best interests of the child before his/her own interests; (

b) encourage the child to have a good relationship with the other parent in a positive and respectful manner; (

c) refrain from any and all destructive, negative or hostile communications, criticisms or arguments in front of the child; and (

d) speak to the child about the other parent in a positive, respectful, honourable and constructive manner and not speak negatively about the other party or that party's partner to the child or in the child's presence. 2. The parties shall not: (

a) interrogate or badger the child regarding the time spent with or information about the other party beyond simple conversational questions; (

b) discuss with the child any inappropriate adult, court or legal matters; and (

c) blame, criticize or disparage the other party to the child in any manner, regardless of their concerns. [ 105 ] I have that order so it is easy for you type out. Those are my reasons. A transcript will be ordered. Who is going to undertake to draft that order? Obviously, you may want to wait for the transcript but somebody's got to draft it. [ 106 ] MS. HAIR: I can draft that order, Your Honour. [ 107 ] THE COURT: All right. So Ms. Hair will draft it and send it. (DISCUSSION) [ 108 ] THE COURT: Okay. Well, just a moment.

I think for that clause to make sense about things not being resolved, I should add in these two clauses then, Madam Clerk. I will simply add in this. Each guardian -- [ 109 ] THE CLERK: Sorry, Your Honour. What term should this be added to? [ 110 ] THE COURT: It will just be before the term that "if an issue remains unresolved". Do you have that one? "If a guardianship issue -- [ 111 ] THE CLERK: Yes, so just before that one? [ 112 ] THE COURT: Just before that one there will be a new order that each guardian will advise the other guardian of any matters of a significant nature affecting the child.

Now, I could add to that as well, "consult". [ 113 ] MS. HAIR: I would prefer "consult", Your Honour. [ 114 ] THE COURT: All right. Given that my ruling has gone the way it has, I think I will accede to that. Do you have anything to add to that, Ms. Chadola? [ 115 ] MS. CHADOLA: So what is it going to say? Each guardian will advise... [ 116 ] THE COURT: Well, advise and consult. [ 117 ] MS.

CHADOLA: And consult. [ 118 ] THE COURT: To be clear, just before the "if a guardianship issue is unresolved" clause, I have added in that “each guardian will advise the other guardian of any matters of a significant nature affecting the child”. I will also add in “each guardian will consult the other guardian about any important decisions that must be made and will try to reach agreement concerning these important decisions”. G. BROWN Provincial Court Judge