Director v. T.T. and A.T.(1) Date:, 2016 BCPC 118

Citation: Director v. T.T. and A.T.

(1) Date: 20160224 2016 BCPC 0118 File No: 16047 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: A.T.(2) , born [omitted for posting] G.T., born [omitted for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: T.T. PARENT AND: A.T.

(1) PARENT REASONS FOR JUDGMENT RE:

SECTION 55 OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Director: Mr. Graham Kay Counsel for the Parent, A.T.: Mr. Jeffery Shidei Counsel for the Parent , T.T.: Mr. Kenneth Walker, Q.C. Place of Hearing: Kamloops , B.C. Date of Hearing: February 1, 2016 Date of Judgment: February 24, 2016 [ 1 ] T.T. seeks interim access to his children, A.T.(2) born [omitted for posting] and G.T. born [omitted for posting]. He is supported in his application by his wife, A.T.(1), who presently has the children under a supervision order. He also has the support of his parents, L.T. and W.T., and his in-laws, E.O. and C.O.

The Director opposes the application citing the family’s unwillingness to co- operate with the Director in investigating and assessing allegations that T.T. has been viewing child pornography, and any risk he may pose to the children as a result of those allegations.

T.T. is indisputably a custodial parent. [ 2 ] Section 55(4) and (6) of the Child, Family and Community Services Act provides as follows: 55(4) If the parent who had custody when the child was removed applies under subsection (1) or (2), the court must order that the parent be given access to the child unless the court is satisfied access is not in the child's best interests.

(6) The court may attach to an access order under this

section or

section 56 any reasonable terms or conditions. [ 3 ] The sections make it clear that there is a presumption in favour of the custodial parent having access to the children. However, an allegation that a parent has been viewing child pornography, particularly where the disclosure comes from that parent, rebuts that presumption. Access may still be granted if appropriate terms can be put in place that would address the protection concerns pending trial. [ 4 ] T.T. concedes that the appropriate order to attach to any access he is allowed is that access be supervised.

He seeks to have that supervision done primarily by A.T.(1) but, alternatively, by any of the four grandparents. All of those grandparents have expressed a willingness to supervise his access and have expressed that they fully intend to comply with any terms the court may order. [ 5 ] The court cannot experiment with the safety of children in child protection matters. Where the presumption of access is rebutted by the nature of the allegations, the court must be satisfied that access is appropriate and safe in the best interests of the children.

Those best interests are often directly competing with the disruption and distress brought about by either removal of the child or removal of the parent from the home. The court’s empathy for that distress cannot result in a decision that compromises safety. [ 6 ] An interim application for access comes before any finding of protection is made. The evidence is not as fulsome as it would be at trial. Each case must be reviewed on its own facts. [ 7 ] In this case, T.T. has disclosed to his physician and psychiatrist that he has been viewing child pornography.

There is no indication of the nature or extent of the child pornography except that he has been viewing it for approximately one to two years. The disclosure came not by way of T.T. seeking help to address his interest in child pornography, but because of the depression and suicidal ideation he suffered as a result of co-workers discovering what he had been doing. In other words, T.T. sought professional help not to stop viewing the child pornography or to protect his children, but to address his own state of distress.

He has continued to seek professional help but has declined to sign releases that will provide the Director with access to the records of those professionals. While he has taken the valuable step toward acknowledging and disclosing he has this problem, he is keeping it a closely held secret.

This is not a positive sign either for assessing the risk T.T. poses for his own children or for cooperating with the Director for his reintegration to the family unit. [ 8 ] A.T.(1) clearly puts the safety of her children first and is deeply concerned about the negative impact T.T.’s removal has had on their oldest child, A.T.(2). She wishes T.T. to come home so that A.T.(2)’s life can return to a semblance of normal. Her desire to achieve this objective has made her somewhat dismissive of the protection concerns and her willingness to learn what risk T.T. may pose to the children.

She is circumspect about his disclosure, saying that she has not seen or been told what the pornography encompasses. She has not taken any steps to have the home computer analysed to assess the nature and extent of child pornography viewed on it. Having made no investigation into what he has been viewing, she strongly maintains that he poses no risk to her children. [ 9 ] Similarly, the grandparents have been circumspect about the disclosure, though they assure the court that they will comply with any order made for supervision terms.

I accept their sincerity in this regard. [ 10 ] Supervised access, particularly in cases such as this, requires more than mere presence in the same room. It requires constant monitoring of the behaviour and interactions between the child and the supervised parent. According to Ged Schwartz, there should be no contact with breasts, buttocks or genitals. This can happen in the innocent act of hugging and so supervisors must be alert to the innocent acts as well as the possible surreptitious and overt ones. There should be no whispering. Facial expressions need to be monitored.

Similarly, touching needs to be monitored. [ 11 ] A.T.(1) has already shown some insight into the extent that supervision will engage her. She advised that even if she had to take

a phone call she would ask T.T. to step outside of the house so that her attention would not be divided. This is a promising start. So too is her realization that she cannot work, care for her children and monitor T.T.’s actions by herself if he is to return to the home overnight. [ 12 ] The intentions of A.T.(1) and the four grandparents are admirable. Their determination to ensure that the supervision terms are adhered to are compelling and credible. However, interim access also demands that the supervisors understand the risk before they can be alert to it and prevent it.

While some of the proposed supervisors have indicated a willingness to attend counselling that would give them that insight, others, including A.T.(1), have not pursued that course. This limits the interim access this court can allow at present. [ 13 ] Going forward, T.T. will have unlimited telephone and Skype access to A.T.(2) so long as the telephone and Skype access is supervised at all times by any of A.T.(1), E.O., C.O., L.T. or W.T. (the proposed supervisors).

In identifying these proposed supervisors, I accept them as appropriate because of their clear expressed intention to protect A.T.(2) and G.T., and to adhere to all terms imposed by the court. [ 14 ] I remain concerned that their acceptance of T.T.’s disclosure is circumspect and that they have all jointly closed ranks against the Director who is tasked with investigating the need for protection of these children. Mr. Walker argued that they are a high functioning family with the grandparents all being engaged in either police work or work with children all of their lives.

Child abuse does not know economic or professional boundaries and child protection does not defer to them. High functioning, professional families are just as capable of child abuse as any other demographic. The court’s satisfaction with the ability of the proposed supervisors to comply with the court order and their willingness to do so to the letter must be found in their conduct. [ 15 ] To date, it appears that the grandparents and A.T.(1) have all cooperated with the strict terms of the supervision order regarding access despite their evident distress over the impact it has had over A.T.(2).

It is that conduct which has given the court confidence that they can perform as supervisors for short term periods of time for now. [ 16 ] Going forward, I order that T.T. may have supervised access with A.T.(2) and G.T. for no more than two hours per day up to seven days per week to be supervised by any of the proposed supervisors. T.T. shall not dress, change or bathe either of the children or be present while they are engaged in those activities. T.T. shall not initiate any hugs or touch either child below the waist.

If the children initiate hugs, T.T. may engage in them so long as all touching remains above the waist. T.T. shall not whisper to either child. T.T. shall not be alone for any amount of time with either child.

T.T. shall not be involved in putting the children to bed, either for naps or for the night. [ 17 ] On any of the proposed supervisors completing counselling which engages them in understanding the risks posed to children by a person who views child pornography and which trains them for more extensive supervision, then those proposed supervisors may, with the consent of the Director, engage in expanded supervised access.

In the absence of consent from the Director, either parent may apply to the court to have the supervised access expanded for those proposed supervisors who have completed such counselling. [ 18 ] T.T. shall not access any device capable of internet access while engaged in access with his children. [ 19 ] T.T. shall provide notice to the Director 24 hours in advance of any access he will be engaged in together with the name of the supervisor for that access and the location or locations where that access will take place.

The parents and proposed supervisors shall provide unlimited access to the Director during those access visits, without notice from the Director. [ 20 ] A.T.(1) has sought T.T.’s return to the home. He may attend the home for the purposes of the supervised visits. However, he cannot spend the night or return to reside in the home where the children live. [ 21 ] The Director has liberty to apply to suspend or terminate this order if any risk assessment conducted of T.T. indicates that he is greater than a low risk to offend or to harm these children. _________________________ S.D. Frame Provincial Court Judge