IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2012 SKPC 181

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 181 Date: December 5, 2012 Location: Melfort _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF AN APPLICATION TO VARY PURSUANT TO

SECTION 39 OF THAT ACT RESPECTING J.D., born […], 2004 Appearing: Ms. S. Cannon For the Ministry of Social Services Mr. T. Forsyth/Mr. M. Mahon For the applicant father, J.D. The father and child are identified by initials in order to protect their identities. JUDGMENT B. MORGAN , J INTRODUCTION

[1] By decision dated June 16, 2011 (2011 SKPC 76 , 2011 SKPC 076), this Court dealt with an application for aprotection hearing for J.D., as well as two of her siblings. In that decision, an order was made under s. 37(1)(

a) and s. 37(5) of TheChild and Family Services Act, S.S. 1989-90, c. C-7.2 (the Act), but only respecting J.D.

Citing an alleged change in circumstances, thefather now applies under s. 39 of the Act to vary or terminate that order. [2] The background for the earlier case which sets the stage for this application is best set out by reference to paragraph 7 of thatJune decision, which reads as follows: On January 21, 2011, the Ministry became aware from a member of the RCMP Detachment in Melfort that the father, J.D., had beencharged with sexual assault and sexual interference with a 12 year old child, the charges arising out of a time when that child, S., nowresiding in another town in Saskatchewan, had resided with J.D. and A.D. (his wife) in Melfort.

A family services worker from Melfort(the first worker) was assigned to look into the matter respecting the couple’s biological children, and decided to take some steps tointerview these three biological children, all of whom are the subject of this hearing. The matter the RCMP referred to was based on anallegation that while S. had stayed with J.D. and his wife A.D. for approximately six months in 2010, that child had been abused by J.D.

Thus, the RCMP officer who reported this matter to the family services worker had concerns about the biological children of J.D. [3] As both the child and father have the initials J.D., I will refer to them as the father and child to avoid confusion. [4] There were some disclosures made by each child to the workers, and the RCMP became involved, with the end result thatthe father was charged with sexual assault under s. 271 and one charge of touching the child J.D. for a sexual purpose under s. 151 of theCriminal Code.

All three children were apprehended. [5] At the conclusion of the hearing, in June of 2011, it was ordered that the child was in need of protection, but only withrespect to her father. It was ordered that the child be returned to her mother, and that the father was not to reside in or stay overnight inthe same residence as the child, nor was he allowed to have any contact with the child at any location unless such contact was under thedirect and continuous personal supervision of the mother.

There were no criminal charges laid respecting the child’s two siblings, andthey were not found to be in need of protection. [6] On April 24, 2012, the Melfort agent of the Attorney General for the Province of Saskatchewan who had carriage of thosetwo charges respecting the father and his child entered a stay of proceedings on both counts. The legal effect of a stay of proceedings isthat the Crown can recommence the proceedings within certain time limits, failing which “the proceedings shall be deemed never to havebeen commenced” (see s. 579 of the Criminal Code).

When the stay is entered the prosecution is ended (see R. v. Smith, , [1992] B.C.J. No. 2730 (B.C.C.A.), per Hollingrake J.A. @ paragraph 22). In law, on April 24, 2012, the criminal chargesrespecting the applicant father’s child were effectively concluded. [7] According to the affidavit material filed by Carolyn Shields, with the Ministry of Social Services, in response to the father’sapplication, the charges respecting S. remain before the Court of Queen’s Bench, Judicial Centre of Melfort, awaiting a trial date. [8] The issue here is whether the order should be varied or terminated.

LEGISLATIVE FRAMEWORK [9] An application to vary an order of the Court is dealt with in s. 39 of the Act, the relevant portions of which state: 39(1) Subject to subsection 2, the Court may, on the application of any party to the original protection hearing, vary or terminate an ordermade pursuant to s. 37 where:

(

a) there has been a change in circumstances; and (

b) it is in the best interests of the child to vary or terminate the order. POSITION OF THE PARTIES [ 10 ] The father has sworn an affidavit in which he states that he has complied with the terms of the June 2011 order, and in fact has not stayed overnight at his home nor had contact with his daughter except in the continuous presence of his wife since February 1, 2011 (that was the date that the father and his wife signed a parental services agreement that would ensure, among other things, that the father would have no contact with the children).

The father further deposes that he has never sexually assaulted his daughter, and that his daughter does not understand why it is that he cannot stay at home. He deposes that she does not understand why he can take the other two children to events by himself, but if the child J.D. is along, the father’s wife has to be present.

He deposes this has made his daughter upset and jealous of the other two children. [ 11 ] He further deposes that his family has had to relocate to another Saskatchewan community in order for his wife to obtain employment, and that there are practical difficulties in trying to arrange his life, and for his wife in arranging the children’s lives, so that he is never alone with his child. He seeks an order terminating these restrictions, allowing him to live at the family home and to have unrestricted contact with his child. [ 12 ] The Ministry opposes the application.

A portion of paragraph 6 of the affidavit of Ms. Shields, Assistant Supervisor of the Melfort office of the Ministry, states that: That the Ministry continues to have ongoing concerns in relation to [the father’s] inappropriate sexual behaviour around children due to the disclosures by both the child victim [S.] and his daughter.

The one matter is still before the courts and [the father] continues to face charges of sexual interference and sexual assault on a child victim. [ 13 ] The affidavit further mentions in that same paragraph 6 that the apparent reason that the charges were stayed was due to the child’s inability to testify at the preliminary hearing. The Crown need not explain why a stay of proceedings was entered; the fact is the proceedings respecting the child are terminated. [ 14 ] In any event, the Ministry continues to oppose the application on the basis, as stated in paragraph 8 of Ms.

Shields’ affidavit, that: ...the allegations made by both child victims are serious and cause concern by the Ministry for the children.

The Ministry submits that simply because [the father’s] charges with regards to [the child] have been stayed, this does not negate the fact that the Ministry continues to have protection concerns with regards to [the child] being in the care of [the father]. [ 15 ] The same affidavit also states in paragraph 9 that: The Ministry submits that if [the father] is found guilty of sexually assaulting or sexually interfering with the one child victim [S.], that the sentencing conditions of [the father] have the potential to order him not to be in contact with any children. ANALYSIS

(1) Has there been a change in circumstances? [ 16 ] In my view, there have been significant changes in the circumstances that led to the making of the original order respecting contact with his daughter. At that time, the father faced criminal charges respecting that child. At this time, the father does not face criminal charges respecting that child. The protection hearing dealt with this child, and this child’s allegations have not been proven in a trial.

Thus, in my view, the need, present in June of 2011, to put in place some precautionary measures pending the trial of the charges respecting this child are no longer necessary. [ 17 ] Further, there has been a change in the circumstances of the family itself, including the child. At the time of the hearing, the parties all lived in Melfort. The family has now relocated for the mother’s employment purposes, and one of their children is now in high school.

The effect of the order, coupled with that relocation and the change in family circumstances generally, has put pressure on the entire family unit, including the child, and there is uncontradicted evidence that the child is now becoming jealous, and questioning why it is she cannot see her father unless certain conditions are met.

(2) Is it in the best interests of the child to terminate the order? [ 18 ] In my view, it is in the best interests of the child to terminate the order; there is no longer any reason why this child, based on allegations respecting her father that are no longer before the Court, should continue to be deprived of the love and companionship of her father, nor is there any reason for her to have to suffer the confusion respecting having contact with her father in an artificial way. [ 19 ] With all respect to the position of the Ministry, I am unable to agree with the suggestion that it is justifiable to deny a parent contact with his or her child, based on alleged improprieties with another child; the Ministry’s concerns are speculative and conjectural.

The father is presumed innocent unless and until proven guilty. Even if he is to be found guilty of assaulting S., it does not necessarily follow that he could not have contact with his own children. If such were the case, any adult charged with sexual assault or sexual interference with a child would theoretically be subject to an automatic order prohibiting contact from his or her own children. [ 20 ] The application is granted. Pursuant to s. 39(1) of the Act , the prior order is terminated effective this date. B. Morgan, J