) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — v. —, 2011 ONCJ 710

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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (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. Sault Ste. Marie Registry No. 132/2011 DATE: 2011·VIII·17 CITATION: Children’s Aid Society of Algoma v.

C.R. , 2011 ONCJ 710 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — AND — ) ) C.R. and A.R., ) ) ) ) ) ) Lynn Tegosh, for the respondent mother, C.R. Frederick Baxter, for the respondent father, A.R1. David Stone, for the Office of the Children’s Lawyer, counsel for the child, A.R2. ) ) ) HEARD: 16 August 2011 [ 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. C.R., 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 A.R2. is age 13. He resides with his mother Ms. C.R. and has done so since she and his father, Mr. A.R1., separated in March 2000 when A.R2. was not quite two years of age. Apparently, there is an order that deals with custody of and access to A.R2.. No one has produced a copy of this order as yet. [ 3 ] The father Mr.

A.R1. has had access with A.R2. for over eleven years. What form that access may have taken over these years is not disclosed. However, the most recent access arrangements between the parents involved weekly access visits by A.R2. with his father for three consecutive days including two overnights. According to the father, Mr. A.R1., he has a close relationship with his son and they have done many activities together. [ 4 ] Counsel appointed to represent A.R2. confirms that there is, and has been, a good relationship between father and son.

The access arrangements represent a consistent routine over a number of years. A.R2. wants very much for his access visits with his father to continue unchanged from what they had been. He wants to have regular and frequent access and does not wish such access to be supervised. [ 5 ] Paternal access continued after Ms. C.R. and Mr. A.R1. separated in March 2000. The father lived alone for about a year in an apartment. When Ms. C.R. left their former family home, he moved back in and A.R2.’s visits took place there.

During this time he was developing a relationship with L. who had separated from her husband in 2001. L. and her two children, A. (now age 25) and K. (now age 23), moved into Mr. A.R1.’s home in October 2001. L. gave birth to Mr. A.R1.’s daughter H. (now age 9) in March 2002. L. and Mr. A.R1. married in July 2003. A.R2.’s contact with his father through access visits continued through all these changes. Notwithstanding that he continued to live with his mother Ms.

C.R., in her care and custody, he was totally accepted by the father’s new family, which included his half sister H., who is four years his junior. [ 6 ] This access relationship was interrupted by the commencement of this child protection case. The society did not apprehend A.R2. from his mother. However, it obtained an interim without prejudice order that required his mother, Ms. C.R., to permit paternal access only as permitted by the court or agreed to by the society.

The father’s access in this 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 ] Since the making of this order, the society has apparently approved Ms. C.R., L. and the paternal grandmother (A.) as paternal access supervisors.

The access visits are permitted anywhere in the community so long as at least one of these persons is physically present and supervising the father’s contact with the son. [ 8 ] Contemporaneously with this child protection case involving A.R2., the society commenced a parallel child protection case involving the child H.. 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) , 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 A.R2., the person having charge is unquestionably his mother Ms.

C.R. (and for H., it is L.). [ 9 ] 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., 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. [ 10 ] 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 A. 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. and A.. This apparently took place at the Morin Street home. This incident was not disclosed by either A. or Mr. A.R1. to anyone else. Not until May 2011. On May 4, 2011, as A. was driving Mr. A.R1. to pick up his own vehicle, there was some conversation between them that was sexual in nature and which Mr. A.R1. himself admits was inappropriate on his part.

A. 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 A. an incident which she claims was extremely upsetting for her back then. This May 2011 incident was equally upsetting.

A few days later, (ironically on Mother’s Day), A. disclosed to her mother, L., what had happened on May 4, 2011 as well as what had happened seven or eight years previously. [ 11 ] In May 2011, A. was age 25 years, was married and was the mother of two children, ages 4 and 1½, the latter of whom was in the vehicle during the May 4, 2011 incident. [ 12 ] 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 A., he was married to her mother and accordingly was, by definition, A.’s stepfather. [1] 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, L., that Mr. A.R1. was unfaithful to both herself, as well as to Ms.

C.R., with another woman, that he continued to try to persuade her 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 lied 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, and who is still technically his stepdaughter emphasizes, as far as the society is concerned, the risk of sexual harm that he represents for A.R2. and H.. [ 13 ] Counsel for the society stated quite unequivocally that the issue in these motions is whether supervision of the father’s contact with A.R2. should or should not be ordered by the court.

Counsel for the mother, for the father and for the child seemed to agree with this. [ 14 ] This raises the question of which statutory provisions apply to the judicial determination of this issue. The motion of the society is for a temporary care and custody order. In terms of placement, it is asking for a non removal order [2] pursuant to s.51(2)(

b) CFSA . [3] The court can impose reason terms and conditions on the mother, and for that matter, on the father as well. The most contentious supervision order condition sought in the case involving A.R2. is the requirement that the mother, Ms. C.R., not permit access to the father, Mr. A.R1., except as is permitted in an order for access made in this proceeding, or as specifically agreed to by the society. There seems to be a consensus that, insofar as the mother is concerned, the court can impose such a condition.

It is more a question of whether it should do so. [ 15 ] The actual contest here is not with respect to a supervision order condition unless the court imposes some kind of condition

of paternal access to A.R2. that involves access supervision. The real issue is whether a paternal access order will have some provision for access supervision. [ 16 ] I agree that s.51(5) CFSA [4] has no applicability in this case. This subsection does not apply where the temporary care and custody order during an adjournment is made under s.51(2)(b). The logical next question is what provision of the statute governs the making of an order for access in such circumstances. The answer, in my view, is s.58 CFSA . [5] [ 17 ] This subsection has tricky wording.

It suggests at the outset that “ a child’s best interests ” is the criterion [6] for making such an access order, and later, in the same subsection, specifically provides that what “ the court considers appropriate ” is the criterion for the court’s decision on the terms and conditions, if any, that it imposes on whatever access order it may make. Are these consistent? Or are they different? Or is this simply legislative sloppiness? [ 18 ]

Section 58 is actually 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. [7] 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. [8] [ 19 ] This case rests entirely on risk of sexual harm to A.R2.. “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 A.R2. is one of sexual exploitation by his father.

Rather, its case rests on the risk that his father will engage A.R2. in, or expose A.R2. to some sexual conduct inappropriate for someone his age. [ 21 ] It is for the purpose of reducing or removing entirely this risk that the society is seeking a judicially imposed condition which will require his access to A.R2. to be supervised by someone approved by the society.

The underlying logic is that the father would not do anything sexually inappropriate if there are eyes watching him and A.R2. together. [ 22 ] The question for the court to decide is whether this supervision of access condition is appropriate to impose, and, in particular, if A.R2. is to spend three consecutive days including two overnights each week alone with his father. [ 23 ] My starting point in interim access orders in child protection cases is to examine what was in place before the society intervened in the family.

In this case, there was an established paternal-filial relationship, existing access arrangements, even an existing access order (even though its precise terms have not been introduced into evidence). These were not recent or newly developed. They have been in place for most of the child’s life. They have been and continue to be beneficial and meaningful for the child as well as for the father. The mother approves and endorses the resumption of the access that had been in effect before the society’s intervention.

The child, who, at age 13 years, is quite capable of expressing his wishes and preferences, wants this as well. [ 24 ] The society wishes to change the status quo in terms of access to A.R2., and to do so quite drastically. I can only interpret totally unsupervised to fully supervised as a drastic change. The society has the onus to justify the appropriateness of such a change. [ 25 ] I am not satisfied that the society has done so. I come to this conclusion for a number of reasons. [ 26 ] First, and perhaps most importantly, there has been over ten years of paternal opportunity for sexual molestation of A.R2..

There is not a scintilla of evidence that anything remotely sexually inappropriate has taken place with him in all of that time. [ 27 ] Second, the totality of the evidence is that the father’s sexual proclivities and sexual preferences have been directed at adult females, albeit on at least one documented occasion, a relatively young adult female. A.R2. is clearly not in this category. Moreover, the father’s sexual activities have never taken place in the presence of any children.

There is no evidence that the father is a pedophile or that he has any sexual predilection for children. [ 28 ] Third, A.R2. is now thirteen years of age, old enough, in my view, to know what kind of conduct between himself and his father is sexually inappropriate. He now has his own lawyer. He has his mother with whom he lives. He goes to school where he has teachers and peers. He is evidently capable of verbalizing his wishes and preferences, from which I infer that he is equally capable of making a report of any untoward conduct by his father.

This is not placing on A.R2. any more of an obligation to protect himself than that which is expected of any thirteen year old child. [ 29 ] Fourth, the drastic change in the circumstances in which he sees his father since the society’s intervention has had an adverse effect on the child’s emotional health. [ 30 ] Not to be overlooked is a fifth consideration, namely that the father’s misconduct with A. is now out in the open. He is aware that the eyes of the society as well as those of the mothers, L. and Ms. C.R., are upon him. This is a deterrent in itself against engaging in any questionable sexual conduct.

This is even more so when one considers that he is involved in two child protection proceedings. [ 31 ] In

summary, I do not find that the risk of the type of sexual harm which the society wishes to address with the requirement of paternal access supervision is anywhere close to the magnitude that makes such a condition “appropriate” to impose in an order for paternal access. A.R2. can spend time with his father as he did before the society started this child protection case. Counsel for the father

explained that the three days with two overnights per week cannot be fixed to particular days because the father’s work

schedule varies from week to week. Moreover, it appears that the father may spend additional time with A.R2., with maternal consent, in activities with him or in recreational activities with peers at which the father attends. In view of these circumstances, it is better to order the father’s access to be reasonable access, subject to the consent of the mother as to location, time, frequency and duration, with such access to be at minimum three days per week including two overnights. [ 32 ] Counsel for the mother, Ms. C.R., was recently retained.

Perhaps because of this, she had little time to review the current conditions applicable to the mother in regard to the interim without prejudice supervision order. She did not take issue with any of these except that in clause (1)(h). In view of my proposed order of paternal access, this paragraph will be excluded but the remaining clauses will apply to the s.51(2)(

b) order I will be making. [ 33 ] As for paternal access, there are six clauses [(

a) to (f)] in paragraph (2) of the interim without prejudice access order. Counsel for the father did not address the in/appropriateness of these clauses. The society wanted them to continue in any order made on these motions. In absence of any argument that they are objectionable, I intend to include all but clause (

f) which would clearly be inconsistent with the father’s entitlement to exercise access that includes overnight visits. Released: 17 August 2011 Signed: “Justice John Kukurin” (

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. (

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.