CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant, — v. —, 2011 ONCJ 652

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto Registry No. CF0-11-10239-00-A4 DATE: 3·VI·2011 CITATION Catholic Children’s Aid Society of Toronto v. M.L.R. , 2011 ONCJ 652 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant, — AND — M.L.R . and H.R.A. , Respondents Before Justice Ellen B.

Murray Heard on: 27 May 2011 Decision released: 3 June 2011 Chris Andrikakis .................................................................................... for the applicant society Katharina Janczaruk .................................................................................... for the respondents

[ 1 ] JUSTICE E.B. MURRAY:— The Society brings a motion asking for a temporary order placing the children G., aged 6, and H., aged 15, with their mother Ms. M.L.R. under Society supervision. The requested conditions of supervision include conditions that the children’s father, Mr. H.R.A., not reside in the family home, and that he have no contact with the children except as approved by the Society. The motion raises these issues: • Is the Society reasonable in its belief that Mr.

H.R.A.’s possession of child pornography constitutes a protection risk for his children? • If the Society’s protection concern is reasonable, what temporary order is appropriate to protect the children? [ 2 ] The Society’s position is that possession of child pornography by father constitutes a protection risk, and that Father’s exclusion from the family home and supervision of his visits with the family’s youngest child is necessary. The parents, Ms. M.L.R. and Mr.

H.R.A., submit that possession of child pornography does not constitute a risk to the parties’ children, and that if the court finds that such risk exists, that an order of supervision which provides that Father not be alone with the parties' youngest child provides sufficient protection for that child. [ 3 ] Early in the case, the Society agreed that it had no concerns about unsupervised contact between father and H.. When the motion was first before the court on March 29, 2011, the Society agreed that access between H. and his father would be in accordance with the child’s wishes.

No material had yet been prepared by the parents. A “without prejudice” order was made in accordance with the Society’s request that father be excluded from the home, and have contact with G. only as approved by the Society. The motion was put over for the parents to file materials. When the matter came before me on April 11, 2011, I asked counsel to provide expert evidence, if available, that spoke to the connection between possession of child pornography and direct sexual abuse of a child.

That evidence was provided, and the argument on the motion was completed on May 27, 2011. [ 4 ] I have decided that a temporary order should issue placing the children in Ms. M.L.R.’s care, and providing that Mr. H.R.A. shall have no unsupervised contact with G.. His contact with the child must take place in the presence of Ms. M.L.R. or the parties’ adult daughter, Ms. M.A.R.M., or any other adult approved of by the Society. I have not excluded Mr. H.R.A. from the family home. My reasons for the decision are set out below. The Statute [ 5 ]

Section 51 of the Child and Family Services Act governs the custody of a child in a protection case during the period before adjudication has been made about whether the child is in need of protection, and, if a finding is made, what is the appropriate disposition. Adjournments 51.--

(1) The court shall not adjourn a hearing for more than thirty days, • (

a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or • (

b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment. Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, • (

a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; • (

b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; • (

c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or • (

d) remain or be placed in the care and custody of the society, but not be placed in, • (

i) a place of secure custody as defined in

Part IV (Youth Justice), or • (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. Criteria

(3) The court shall not make an order under clause (2) (

c) or (

d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (

a) or (b). Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (

c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community. Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2) (

b) or (

c) may impose, • (

a) reasonable terms and conditions relating to the child's care and supervision; • (

b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and • (

c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. Application of s. 62 (4) Where the court makes an order under clause (2) (d),

section 62 (parental consents) applies with necessary modifications. Access

(5) An order made under clause (2) (

c) or (

d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate. Power to vary

(6) The court may at any time vary or terminate an order made under subsection (2). Evidence on adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances. The evidence [ 6 ] Ms. M.L.R. and Mr. H.R.A. have been married for 21 years. They have three children, Ms. M.A.R.M., aged 19, H., aged 15, and G., aged 6. All three children live at home. Mr. H.R.A. operates a tax preparation business out of an office in the family home. He is active in events in Toronto’s Latin American community. He has no criminal record. Ms. M.L.R. works outside the home at the “407/ETR”. [ 7 ] The parties’ oldest daughter, Ms.

M.A.R.M., is in second year of an accounting program at community college. Their son, H., attends secondary school. Gabriela attends primary school. Ms. M.A.R.M. and H. have had the responsibility to care for G. after school when Ms. M.L.R. and Mr. H.R.A. are working. [ 8 ] All three children do well in school. H. and G. are active in extra-curricular activities and sports. Ms. M.A.R.M. works part-time.

The parents say that the children are “happy and well-adjusted”, and the Society has presented no evidence to contradict that assertion. [ 9 ] The Society’s first contact with this family took place in December 2009, when Mr. H.R.A. was charged with a variety of offences alleging historical sexual assault against a Ms. B.S.Ms. B.S. was 17 years old at the time the charges were laid; she alleged the offences took place some 7-10 years prior, when she was a child and was cared by Mr. H.R.A.’s mother as a baby-sitter. She alleged that Mr.

H.R.A. tutored her during this time, and that he had sexually abused her while displaying “porn” on his computer. [ 10 ] Mr. H.R.A.’s conditions of release did not contain any provisions related to contact with his children.

[ 11 ] The Society was notified of the charges by police. Mr. H.R.A. denied the allegations, and has pled not guilty to all charges. Mr. H.R.A. and Ms. M.L.R. cooperated with the Society’s investigation. All three children were interviewed privately by the Society workers. Ms. M.L.R. said that Mr. H.R.A. was a “devoted, dedicated and very responsible parent”. She did not express any concern that the children were at risk of harm from their father. [ 12 ] The Society was satisfied that there was no protection risk, and closed the file at intake level. [ 13 ] At the time that Mr.

H.R.A. was charged in December 2009, police seized his computer. In February of 2011, police contacted the Society advising that, based on an examination of the contents of that computer, Mr. H.R.A. had been charged with possession of child pornography. [ 14 ] No one from the Society has seen any of the images on Mr. H.R.A.’s computer, nor have they asked to do so. Police have advised that the computer contains 27,000 images of children pornography and 27,000 images of adult pornography; that some images were “violent” and “very graphic”; and that the images did not involve Mr.

H.R.A.’s children. [ 15 ] No information was provided as to whether the images of child pornography featured girls, boys, or children of both sexes. No information was provided as to whether these images had been accessed after downloading, and if so, how often. [ 16 ] Ms. M.L.R. cooperated in allowing all three children to be interviewed by police and Society workers at a location designed for such interviews. There was no evidence that any of the children had been abused by Mr. H.R.A. [ 17 ] Mr. H.R.A. pled not guilty to the charge.

However, for the purpose of this motion, his lawyer agreed that I could assume that the hard drive of his computer seized in December 2009 contained child pornography. Mr. H.R.A. has suggested to a worker that the pornography was not downloaded by him. His bail conditions on this charge place no restriction on his contact with his children. [ 18 ] Mr. H.R.A. has not come to trial on the charges laid in December, 2009. In fact, his preliminary inquiry has not even taken place. It is clear that trial on either set of charges is a long way off. [ 19 ] Ms.

M.L.R. was interviewed by the Society on February 24, 2011, after her husband was charged with possession of child pornography. She continued to believe that he did not pose a danger to the children, and stated that he would not “do it to my kids”. She did not acknowledge that her husband possessed child pornography, but commented that if he did, that it was “not that bad”, and that “by looking you are not there and not damaging them”. She added, however, that the charges were serious and disturbing, and that she would do whatever the Society felt was needed to protect the children. [ 20 ] The fact that Mr.

H.R.A. was charged with another offence related to children caused the Society to reconsider its position. [ 21 ] A Society worker asked Ms. M.L.R. to ensure that Mr. H.R.A. leave the home and have no contact with the children unless supervised by the Society. She agreed. Mr. H.R.A. left the home and lived with his sister. However, after two weeks, he moved back in. He found it too difficult to operate his business away from his office. It was tax time, his busy season, and his family could not get along without his income.

The Society commenced this application on March 18, 2011. [ 22 ] As indicated above, a “without prejudice” order was made on the first return date of this motion which provided that Mr. H.R.A. was not to be in the home, and was to have contact with G. only as approved by the Society. On April 26, 2011, after receipt of some responding material from the parents and pending full argument of the motion, I modified this order to allow Mr. H.R.A. limited access to his office (which is the basement and accessed by a separate entrance) to meet with clients. There is no evidence that Mr. H.R.A. or Ms.

M.L.R. have violated the terms of these orders. [ 23 ] Counsel for the Society filed the evidence related to any known link between possession of child pornography and what is

referred to as “contact offences”, involving direct acts of child abuse. Counsel for the parents also filed material on this point. Counsel agree that research on this issue is at an embryonic stage. The research filed may be summarized as follows: • Consumption of child pornography is a valid diagnostic indicator of pedophilia. • Approximately 12 % of those convicted of possession of child pornography (“online offenders”) have also been convicted of prior contact offences. • Approximately 55 % of online offenders admit to a prior incident of direct sexual abuse of a child for which they were not charged.

This may be an over-reporting, as there were incentives within treatment programs for these individuals to make these admissions. • Recidivism among individuals whose only offence is possession of child pornography is low; approximately 6% incur a further conviction for possession, and 4% commit future contact offences. • Work is just beginning to isolate the risk factors which might identify the subset of online offenders who have a high risk of committing contact sexual offences in the future.

Some factors that have been identified are prior criminal history, younger offender age, substance abuse problems, intimacy deficits, and sexual deviance. [ 24 ] The Society would like Mr. H.R.A. to cooperate in a risk assessment at CAMH before it agrees that he can return to the home, but acknowledges that because of the pending criminal charges, he may not be in a position to do so. Mr. H.R.A.’s lawyer agrees that he is not in a position to consent to such an assessment at this time.

Analysis [ 25 ] Section 51(2) of the Act gives the court a number of options as to orders to be made during the period of adjournment of a protection application, ascending in order of intrusiveness. At the low end, the court may simply provide that a child shall remain in the care of the person who had charge of her before the application was begun. If the Society demonstrates that it has reasonable concerns about a protection risk affecting the child, then a supervisory order with “reasonable terms and conditions” may be imposed.

Reasonable belief of risk [ 26 ] If the Society demonstrates that there are “reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be adequately protected by a supervision order”, then the court may temporarily place the child with another person, or place the child in temporary the Society care.

A placement with a family or community member is to be considered before an order for temporary Society care is made. [ 27 ] The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention. [1] The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care. [ 28 ] I am satisfied at this stage of the case that the Society’s belief that there is a protection risk for G. is reasonably grounded.

I say this despite the fact that there is no evidence that any of Mr. H.R.A.’s children have been abused by him. The following evidence in my view provides reasonable grounds for Society intervention: • Charges that Mr. H.R.A. abused a young girl in the past, and charges that he was in possession of thousands of images of child pornography, some of it involving young children.

The fact that criminal charges have been laid indicates that a police officer has reasonable grounds to believe that an offence occurred. • Research indicating that a significant percentage of individuals who possess child pornography have also directly sexually abused children. [ 29 ] I add that, in my view, the Society has an obligation in a protection case to continue its investigation and assessment of risk after the application is issued and a temporary order made.

In cases such as this, the Society should not expect that it would be reasonable as months go by to rely on allegations from police and to refrain from conducting its own assessment of the evidence of risk that is in the hands of the Crown and the police.

Appropriate order [ 30 ] Having found that the Society’s intervention at this stage is reasonable, what order should be made pending a protection hearing? There is no disagreement that G. should remain at home in her mother’s care. The factors cited above which justify the Society’s belief that there is a risk also establish to my satisfaction that an order of temporary supervision is required, with a condition which regulates .G.’s contact with her father. [ 31 ] Section 51(2) (

c) does not specify what factors the court should consider in determining the terms and conditions of a supervisory order.

I agree with my colleague Justice Katarynych that the interim protection imposed must be “proportionate to the need shown by the evidence”…. and that the question is “what is needed to protect the child adequately pending hearing of the society’s protection application”. [2] [ 32 ] I am conscious of the fact that “intrusion into the parent-and –child relationship by the child welfare authorities is a very serious business, a threat to the security of the parent -child relationship and a state action that can have a profound effect on the lives of both the parent and the child”. [3] [ 33 ] The term requested by the Society excluding Mr.

H.R.A. from the home would be a highly intrusive order. It is a given that it would severely restrict .G.’s contact with her father. It would have a serious negative effect on the whole family unit, threatening its stability. Mr. H.R.A. has been a very active father, on all fronts. He will be removed from the daily life of the family—meals, shopping, visits with extended family, attendance at sports events and extracurricular activities, and attendance at community events in which the family would participate. Ms. M.L.R. will effectively become a single parent. H. and Ms.

M.A.R.M., as well as G., will be cut off from normal contact with their father. [ 34 ] I am conscious of the gaps which understandably exist in the Society’s case at this time. No one from the Society has seen, let alone evaluated, any of the evidence supporting the charges against Mr. H.R. A. All that exists now are allegations that remain to be proven. [ 35 ] I am also conscious of the fact that any conditions which I impose are likely to be in force for a lengthy period of time. In order to go to trial, the Society requires disclosure of the Crown’s case in the charges facing Father.

The Society anticipates that the Crown will not agree to make disclosure, and that it will be compelled to bring a motion. Society counsel anticipates that the Crown will strenuously oppose the motion, and that the Crown will request a lengthy delay of the hearing of the motion, in order to vet and prepare material.

It would be optimistic to think that this matter could go to trial earlier than at least a year from now. [ 36 ] The business of crafting appropriate conditions of supervision at the early stages of a protection case requires a delicate balancing between imposing terms that are required to provide protection to a child against possible risk and not taking steps that would damage the family unit unless those steps are clearly necessary to protect the child. [ 37 ] In my view, it would be reasonable to allow Mr. H.R.A. back into the family home on the condition that he not be left alone with G., and that either Ms.

M.L.R. or Ms. M.A.R.M. or some other adult approved by the Society be with him when the child is present. The Society suggested that Ms. M.L.R. might not be trustworthy, because Mr. H.R.A. returned to the home after he was charged, when the Society asked her to ensure that he not do so, and because she is ambivalent about the risk that Mr. H.R.A. might pose to G.. I do not agree that Ms. M.L.R. is not trustworthy, for two reasons: 1. I think it is asking too much of Ms. M.L.R. to expect that she will without further evidence accept that the man she knows as a devoted father would abuse G.. Ms.

M.L.R. is ambivalent. She does recognize that there is potential risk, and declares that the bottom line is that she wants to protect her children. Ms. M.L.R. did not comply with a Society worker’s request, but such a request is not a court order. 2. Ms. M.L.R. and Mr. H.R.A. have complied with the court orders that have been in effect since March 29, 2011, although compliance has been difficult. Both parents are aware that non-compliance with an order can have serious consequences. I think that Ms.

M.L.R. can be entrusted to obey a court order when she knows that her compliance will be monitored by the Society. [ 38 ] My order is that G. shall remain in her mother’s care, subject to Society supervision and subject to the following conditions: 1. Ms. M.L.R. shall permit the Society worker(

s) to conduct both announced and unannounced home visits and shall allow the Society

worker(

s) to meet with the children privately at any location deemed appropriate by the Society. 2. Ms. M.L.R. shall ensure that Mr. H.R.A. does not have unsupervised contact with G., inside or outside the family home. His contact with G. shall occur only in the presence of Ms. M.L.R. or Ms. M.A.R.M. or other adult pre-approved by the Society. Mr. H.R.A. shall comply with this condition. 3. Ms.

M.L.R. shall sign consents to the release of information allowing the Society to obtain and exchange information with collaterals with whom she and/or the children are involved, including but not limited to family doctors, school professionals, and counsellors. 4. Ms. M.L.R. shall advise the Society of any change in address or telephone number, or of any change to the number or identity of the person(

s) residing in the family home at least 48 hours prior to such change occurring, or as soon as reasonably possible thereafter. 5. Mr. H.R.A. shall provide the Society with copies of his police records check. 6. Mr. H.R.A. shall make himself available to the Society worker(

s) for both scheduled and unscheduled visits, and shall maintain communication with the Society. 7. Mr. H.R.A. shall sign any consents to the release of information reasonably requested by the Society. 8. Mr. H.R.A. shall advise the Society of any change in address and/or telephone number at least 24 hours prior to such change occurring, or as soon as reasonably possible thereafter. [ 39 ] I have no information as to any education that G. may have received about appropriate boundaries and the difference between”good touch/bad touch”.

If the Society, after consultation with Mother, believes that G. requires some education on this subject, then Ms. M.L.R. shall co-operate with the Society in facilitating this education. Released on 3 June 2011. Signed: “Justice Ellen B. Murray”