) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — v. —, 2011 ONCJ 711

Sault Ste. Marie Registry No. 132/2011 DATE: 2011·VIII·17 CITATION: Children’s Aid Society of Algoma v. L.R. , 2011 ONCJ 711 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — AND — ) ) L.R. and A.R. ) Respondent mother, L., on her own behalf Frederick Baxter, for the respondent father, A1. ) ) ) HEARD: 16 August 2011 kukurin J. [ 1 ] JUSTICE J. KUKURIN:— This is a decision on two motions: (

a) The first (at Tab 2) by the Applicant society is for an order for temporary care and custody in favour of the mother, Ms. L.R.L., subject to an interim supervision order in favour of the society with a number of terms and conditions, and subject to interim access to the father supervised in the discretion of the society, to be arranged with the society, and also subject to a number of conditions; and (

b) The second (at Tab 12) by the Respondent father for interim paternal access that is unsupervised, to take place at his home for three days including two overnights each week, the specific days to accommodate his shift work days off. [ 2 ] The child H. is nine years old. She had lived with her mother, Ms. L.R.L., and her father, Mr. A.R1.A1., from birth until her parents separated in May 2011. Mr. A.R1.A1. has moved out of the family home. The society has started a child protection application and contemporaneously has brought its motion (at Tab 2) for temporary care and custody of H. in favour of her mother.

In this motion, the society is seeking certain conditions on paternal access. [ 3 ] No one opposes temporary care and custody of H. with her mother, Ms. L.R.L.. Nor does anyone oppose a supervision order. Nor does anyone take issue with the terms and conditions which the society wishes to form part of that order. No one, in fact, opposes paternal access taking place between H. and her father, Mr. A.R1.A1.. What is in issue in these motions is the kind of paternal access that will take place. [ 4 ] The society wants an order that requires that Mr.

A.R1.A1.’s access with H. is to be supervised in the discretion of the society by a person approved by the society. It is proposing to exercise that discretion by requiring all of his access to be supervised. A “without prejudice” order with this provision was made earlier in this case. The society has insisted that all of his access be supervised. However, it has approved as access supervisors, Mr. A.R1.A1.’s mother (A4.), his wife Ms. L.R.L., and his former wife, Ms. C.R.C.

The society does not seem to be overly concerned when, where and for how long access visits take place so long as they are not overnight and provided that an approved access supervisor is always personally present during these visits. [ 5 ] Since the separation in May 2011, H.s visits with her father had been arranged between her parents. These have involved three days including two overnights once per week. The father, Mr. A.R1.A1., has a son, A2., from his former marriage to Ms. C.R.C.. A2. is age 13. He was having similar three day per week access visits with his father.

These took place at H.s home until the father moved out in May. They continued at the father’s current home after the separation. H. and A2. are half siblings. They are well acquainted with each other and have spent much time together since H.s birth. [ 6 ] The father’s access with both H. (and A2.) was interrupted by the commencement of this child protection case. The society did not apprehend H. from her mother. However, it obtained an interim without prejudice order that required her mother, Ms. L.R.L., to permit paternal access only as permitted by the court or agreed to by the society.

The father’s access in that interim order was to be supervised in the discretion of the society, was to be arranged with the society at a location approved by the society. Moreover, such access was subject to a number of other terms and conditions. This order was made by Gregson J. and is dated June 29, 2011. [ 7 ] The father opposes the continuation of these access terms and conditions. He seeks an interim order that permits him to have unsupervised access to H..

He would like the duration of this access to be three days per week, including overnights, and to coincide more or less with the access he has with A2., so that both children will spend time together and with him during their access visits. He would like his access to H. to be arranged between himself and her mother, Ms. L.R.L., rather than with the society. [ 8 ] The mother, Ms. L.R.L., supports the father’s claim for access to H.. She does not believe that Mr. A.R1.A1. would sexually harm her if he were to have unsupervised access.

[ 9 ] The society opposes Mr. A.R1.A1.’s claims. It believes that all of his access to H. should be supervised, and that unsupervised access to her by him places her at risk of harm. [ 10 ] On August 17, 2011, I made an order in a parallel child protection proceeding involving the child A2., permitting paternal access to Mr. A.R1.A1., unsupervised, for a minimum of three days weekly, including overnights, to be arranged between Mr. A.R1.A1. and A2.’s mother, Ms. C.R.C..

Is the same kind of access order appropriate to be made with respect to H.? [ 11 ] The basis for the protection concern in both cases is identical. The society’s ground for a finding that each of these children is in need of protection is that spelled out in s.37(2)(

d) of the Child and Family Services Act (CFSA) [1] , namely that there is a risk that each of these children is likely to be sexually molested or sexually exploited by the person having charge, or by another person where the person having charge knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child. In the case of H., the person having charge is unquestionably his mother Ms. L.R.L. (and for H., it is Ms.

C.R.C.). [ 12 ] The risk of sexual molestation or exploitation in each of these cases is not alleged by the society to arise directly from the mothers of these children. Rather, it is the father, Mr. A.R1.A1., who the society maintains is the source of the risk of harm, and it is the mothers who should know of the possibility of such harm from him, and who fail to protect the children. [ 13 ] After Ms. C.R.C. and Mr. A.R1.A1. separated in March 2000. The father lived alone for about a year in an apartment. During this time he was developing a relationship with Ms.

L.R.L. who had separated from her husband in 2001. Ms. L.R.L. and her two children from her former marriage, A3. (now age 25) and K. (now age 23), moved into Mr. A.R1.A1.’s home in October 2001. Ms. L.R.L. gave birth to Mr. A.R1.A1.’s daughter H. (now age 9) in March 2002. Ms. L.R.L. and Mr. A.R1.A1. married in July 2003. [ 14 ] The factual basis for the society’s insistence that the father is a source of risk of sexual harm are two incidents. When the first of these happened is disputed in the evidence. However, it was when A3. was at least eighteen years of age, and possibly even nineteen.

This must have been in 2003 or 2004. The incident involved oral sex (cunnilingus) between Mr. A.R1.A1. and A3.. This apparently took place at the Morin Street home. This incident was not disclosed by either A3. or Mr. A.R1.A1. to anyone else. Not until May 2011. On May 4, 2011, as A3. was driving Mr. A.R1.A1. to pick up his own vehicle, there was some conversation between them that was sexual in nature and which Mr. A.R1.A1. himself admits was inappropriate on his part. A3. interpreted what he said to be an invitation for sexual activity (a proposition).

This talk may well have included a reference to the oral sex incident that had taken place some seven or eight years previously. It certainly resurrected for A3. an incident which she claims was extremely upsetting for her back then. This May 4, 2011 incident was equally upsetting. A few days later, (ironically on Mother’s Day), A3. disclosed to her mother, Ms.

L.R.L., what had happened on May 4, 2011 as well as what had happened seven or eight years previously. [ 15 ] In May 2011, A3. was age 25 years, was married and was the mother of two children, ages 4 and 1 ½ , the latter of whom was in the vehicle during the May 4, 2011 incident. [ 16 ] The society’s argument is that the father is consumed with sex. He does not adhere to normal sexual standards of behaviour. He lives his life well beyond the bounds of acceptable sexual conduct.

When he engaged in oral sex with A3., he was married to her mother and accordingly was, by definition, A3.’s stepfather. [2] Engaging in oral sex with her was, from any perspective,

an act of marital infidelity, and was doubly reprehensible as it was an egregious breach of his responsibilities as a stepfather to a stepchild. This is not all of the society’s evidentiary ammunition. It relies on evidence of the mother, Ms. L.R.L., that Mr. A.R1.A1. was unfaithful to both herself, as well as to Ms. C.R.C., with another woman, that he continued to try to persuade Ms.

L.R.L. to become involved in sexual threesomes and foursomes during their marriage, that he engaged in various forms of sexual flirting with other adults, that he was accessing “hooker” sites on the computer and lying about doing so, that he is a compulsive liar and cheat and has sexual problems insofar as young adult females are concerned. She believes that he has no (sexual) boundaries as far as females are concerned. Paradoxically, she does not believe that he would sexually harm H..

The fact that the father would, as late as May 2011, make sexual overtures to a married mother with two children, one who is still technically his stepdaughter, emphasizes, as far as the society is concerned, the risk of sexual harm that he represents for H. and A2. both. [ 17 ] Counsel for the society stated quite emphatically that the issue in these motions is whether supervision of the father’s contact with H. should or should not be ordered by the court. Counsel for the mother and for the father seemed to agree with this. [ 18 ]

Section 58 is the only provision in

Part III of the CFSA that authorizes a court to make an order for access in a child protection (or status review) case. [3] My

interpretation is that whether an access order is made or not is to be determined by applying the best interests test. What terms and conditions the court imposes on any access order it may make are not necessarily tied to the best interests test. There may be other considerations that may be considered appropriate that are not included in the mandatory judicial considerations listed in s.37(3) CFSA. [4] [ 19 ] This case rests entirely on risk of sexual harm to H.. “Sexual harm” may be too casual a term to use in a case such as this one. The actual statutory terminology is risk that the child will be “sexually molested” or “sexually exploited”. There are no

definitions in this statute for the words “molested” or “exploited” or, for that matter, for the word “sexually”. [ 20 ] Their ordinary meanings, particularly considered in the context of conduct towards a child, are sufficient to identify what kinds of risk are involved. I use the plural because there are two very different risks involved in the terminology used in the statute. One involves molestation, which implies some kind of improper or illicit interference with a person, generally with a sexual motive. The other involves exploitation.

This implies using someone or something in a sexual way for selfish gain or selfish ends, not necessarily involving molestation. In the present case, (unless I have missed the point entirely), the society does not appear to be suggesting that the risk to H. is one of sexual exploitation by her father.

Rather, its case rests on the risk that her father will engage H. in, or expose H. to, some sexual conduct inappropriate for someone her age. [ 21 ] The question for the court to decide is whether this supervision of access condition is appropriate to impose, and if H. is to spend three consecutive days including two overnights each week alone with her father. In view of the decision with respect to interim paternal access with A2., any disparity that may result from an order for substantially different terms of access require some judicial

justification. [ 22 ] There is clearly an established and positive relationship between H. and her father. She has lived in a home in which he was her biological father, was married to her mother, and was the adult male figure in the household. This persisted for nine years. [5] Even following the marital separation of her parents, H. continued to see her father. [ 23 ] There is no evidence at all that the father has ever misconducted himself in a sexual manner with H.. [ 24 ] The mother, Ms. L.R.L., endorses, almost advocates for, the access order that the father is seeking.

She does not have any fears that the father is a source of sexual harm to H. [ 25 ] From the scant evidence about her wishes, H. seems to want to have access to her father unhampered by supervision and wishes it to include overnight stays. [ 26 ] It appears from the evidence that A2. will be visiting with the father at most of the times that the father would like to have access visits with H..

While he cannot be considered a paternal access supervisor, A2.’s presence during H.s access visits would provide some deterrence against any inappropriate sexual misconduct on the part of the father. [ 27 ] H., at age 9, is able to verbalize any concerns or any problems that she may experience with respect to access visits with her father. She has a mother who is now well aware of the nature of the society’s protection concerns.

The society also has unlimited access to H. for purposes of interviews to obtain any information it wishes. [ 28 ] All of these factors militate in favour of expansive paternal access terms, unhampered by the requirement of adult supervision. However, there are other considerations that do just the opposite. [ 29 ] At 9 years of age, H. is extremely vulnerable to inappropriate sexual behaviours by others.

There is no evidence of H.’s level of sophistication, nothing to suggest that she is mature beyond her chronological age, or that she has any special experience or other means to self protect against sexual harm from others. Very little is known from the evidence about the level of her sex education.

The fact that her father is C. her father, and a person not only in a position of trust, but also one with parental authority makes her, in my view, even more susceptible to sexual harm from him. [ 30 ] The confidence that the mother has that the father will not sexually misconduct himself with H. is not shared by this court. Historically, the mother was totally unaware of the sexual misconduct of the father with another of her daughters a number of years ago. Perhaps, knowing what she knew about the father, even then, she was not as vigilant as she should have been.

The mother knows a great deal more now about the father and his sexual views and behaviours. Her present position with respect to paternal access to H. seems to discount the facts of the father’s sexual history and his views. The fact that she instigated their present marital separation when she learned of the father’s misconduct with her daughter, A3., suggests that what the father did was a significant issue to her and in their marriage. Her somewhat casual belief that the father would not behave in this way with another of her daughters seems somewhat incongruous.

It certainly seems inconsistent with her allegations about him, particularly that he does not seem to have a proper concept of appropriate sexual boundaries [ 31 ] The kind of the harm sought to be protected against is of some importance to the issue of access. The father’s sexual experiences suggest that he has progressed well beyond innocent but questionable sexual behaviour. His sexual behaviour with A3. was well up on any normal scale of heterosexual sexual behaviour.

From the evidence filed, I infer that this one sexual episode has had severe and serious emotional repercussions for A3. which have persisted over many years. In short, should there be some sexual harm occasioned to H. by her father, it is likely that the harm would be substantial and significant. It would not be innocuous. [ 32 ] Perhaps the most significant factor is the recentness of the behaviours of the father. The evidence does not support one isolated sexual incident eight or nine years ago. The father’s life seems to be have been preoccupied with sex and continues to be so.

The event which precipitated A3.’s disclosures of his dated sexual misconduct with her was another incident of sexual misconduct on his part, again with A3., and one that happened within the last few months. In short, his judgment of what is sexually proper and improper continues to be impaired, even to the present. And the present is when access with H. is to take place. [ 33 ] Not to be minimized is the fact that H. is female. The evidence is that the father’s sexual preferences are to females.

While that evidence suggests that it is to adult females that he directs his sexual behaviour, there is nothing that draws the line at any particular age. In the case of A3., she may have been an adult, but just barely an adult. [ 34 ] The statute permits the court to impose conditions on access that it considers appropriate. In this case, I do not believe it is appropriate that the father have unsupervised access with H., at least not at this interim stage of this proceeding. The risk is too great. The likelihood of harm is too great.

The potential harm is also too great. [ 35 ] The father’s access to H. shall continue to be supervised in the discretion of the society. There will be no overnight visits. This still permits H. to spend time with her father and engage in activities with him. It does not really limit the times. But it does require adult supervision of their contact with each other. I would maintain the current provisions in place with the words ‘on a without prejudice basis” deleted therefrom. The father’s motion at Tab 12 is dismissed. Released: 22 August 2011 Justice John Kukurin Ontario Court of Justice

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c) the child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child; (

d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause ( c ); (

a) when making an order under this Part; or (

b) upon an application under subsection (2), 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6.

The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10.

The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance.