Hastings Children’s Aid Society v. J.L., 2011 ONCJ 872

56/10 Belleville Registry Citation: Hastings Children’s Aid Society v. J.L. , 2011 ONCJ 872 IN THE ONTARIO COURT OF JUSTICE IN THE MATTER OF: THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF: R.T. and C.T., children apparently in need of protection; B E T W E E N: HASTINGS CHILDREN’S AID SOCIETY Applicant - and – J.L. and D.T. Respondents R E A S O N S F O R J U D G M E N T OF THE HONOURABLE MADAM JUSTICE ELAINE DELUZIO AT BELLEVILLE, ONTARIO ON MONDAY, OCTOBER 31, 2011 APPEARANCES: Ms. N. Phipps Counsel for the Applicant Society Mr. S. Baldwin Counsel for D.T. J.L. Personally Ms. S.

Leitch Counsel for the Children’s Lawyer INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT REASONS FOR JUDGMENT [ 1 ] This is a protection application, commenced by the Hastings Children’s Aid Society (“the Society”) on February 13, 2010. The application involves two children, namely, R.T., born […], 2000, and C.T., born […], 2003.

The biological parents of the girls are J.L. and D.T.. [ 2 ] Both the finding and the disposition are at issue. [ 3 ]The Society is asking for a finding that both girls are in need of protection based on risk of sexual and emotional harm and a Supervision Order with the girls remaining in the care of their mother, subject to access with their father in the discretion of the Society. The children’s lawyer, and the mother, J.L., support the society’s position.

The father, D.T., is opposed. [ 4 ] The trial proceeded over fourteen days: April 28, 2011, April 29, 2011, May 12, 2011, May 17, 2011, June 21 -24, 2011, June 30, 2011, September 19-22, 2011 and October 14, 2011. The Court heard from twenty one witnesses. Background Information

[ 5 ] The parents were married on July 18, 1998 and separated on March 15, 2006. At the time of their separation the parents were already experiencing marital problems. J.L. says that D.T. was drinking too much and D.T. suspected that J.L. was having an affair with their neighbour, S.T.. [ 6 ] D.T.’s mother, M.T., testified that she knew that D.T. and J.L. were experiencing marital problems about a month before they separated. She said J.L. told her around Valentine’s Day in February 2006 when she dropped by with treats for her grandchildren.

She recalls that several weeks before they separated D.T. told her he was not going to drink anymore because he was prepared to do anything he could to save his marriage. Before that both he and J.L. liked to go out to parties and they both drank. Since that time D.T. has not touched a drop of alcohol. [ 7 ] On the evening of March 15, 2006, J.L. contacted the Northumberland Children’s Aid Society (the “NCAS”) and took C.T. to the Trenton Hospital. She says that C.T., who was 2½ at the time, had made a statement “daddy put his finger in my gina”.

J.L. took C.T. to the hospital on the advice of her mother, M.H., and her brother. M.H. says she heard C.T.’s disclosure too, and she accompanied J.L. and the children to the hospital, and J.L.’s brother contacted the NCAS to report C.T.’s disclosure. D.T. was with his mother, M.T., that night when he received a phone call from J.L. who told him about C.T.’s disclosure and that she was taking the girls to the hospital to be examined. J.L. and the girls moved out of the family home that night. [ 8 ] Ms. Castonguay, a protection worker with the NCAS, was assigned to investigate C.T.’s disclosure.

She said that C.T.’s disclosure was not verified. Both J.L. and M.H. say they heard C.T.’s disclosure but Ms. Castonguay says that there was an inconsistency between what J.L. and M.H. were reporting C.T. said, and what C.T. was actually able to verbalize at that time. [ 9 ] D.T. was interviewed the next day, in a joint interview conducted by a detective at the Brighton OPP and Ms. Castonguay. Ms. Castonguay interviewed C.T. and C.T. did not repeat any disclosure, and when asked directly whether her dad had “put his finger in your vagina” C.T. said no he did not touch her.

R.T. was also interviewed at the time and she did not report any concerns. Ms. Castonguay also found that D.T. was credible in his denial, and that the children were well cared for. D.T. was not charged and the NCAS closed its file. [ 10 ] D.T.’s mother, M.T., testified that she was with her son that night, March 15, 2006 because D.T. had called her and was upset because J.L. had told him that she didn’t love him anymore. M.T. was with her son when J.L. called and that is when they found out that she had taken C.T. to the hospital. After that night M.T. asked D.T. to move in with her and his father for a while.

She was concerned about D.T. because he was heartbroken over the separation. D.T. did move in with her that night and stayed at her home. [ 11 ] After the parents separated J.L. began a relationship with her neighbour S.T.. J.L. admits that she was dating S.T. but says she and the girls lived with her parents for about seven months before she moved in full time with S.T. in October 2006. D.T. believes that J.L. and the children started living with S.T. almost immediately. [ 12 ] After the NCAS concluded its investigation into the allegation involving C.T., the parties shared custody of the girls.

C.T. and R.T. spent every Wednesday overnight and every other weekend from Friday to Sunday with their father, at their paternal grandparents home. D.T. and M.T. say they were picking up and dropping the children off at S.T.’s cottage, which they both described as a one room shack. D.T. was concerned about the girls’ living conditions because the girls were telling him that they were sleeping on a mattress in the same room with S.T.’s three sons, ages 7, 9, and 11.

J.L. says that she and the girls didn’t start spending time in the cottage until May 2006 and that the cottage had two bedrooms, a living room and a kitchen. [ 13 ] D.T. contacted Ms. Castonguay to report his concerns but she just told him he had to accept the separation. D.T. decided to start divorce proceedings to obtain custody of his daughters. [ 14 ] J.L. was also in contact with Ms. Castonguay after the March 2006 incident. On April 22, 2006, J.L. called Ms. Castonguay and asked her whether there was enough evidence based on C.T.’s alleged disclosure to withhold access from D.T.. Ms.

Castonguay told J.L. the allegation had not been verified and there was no evidence. [ 15 ] J.L. testified that D.T. drank too much when they were married and D.T. admits this but says he did not have a drinking problem. He says he did stop drinking completely several weeks before the parties separated in an effort to save his marriage. He has not had any alcohol since then. D.T.’s evidence that he has not had any alcohol since March 2006 was corroborated by M.T., and by the evidence of his sister, T.B., and his brother-in-law M.B..

R.T.'s Alleged Disclosure in June 2006 [ 16 ] The parties agree that D.T.’s divorce application, which included his claim for custody of the children, was served on J.L. on Wednesday July 19, 2006. [ 17 ] D.T. recalls that his mother picked the girls up on the Friday night after the papers were served, Friday July 21, 2006. He says later that night J.L. called him and threatened that he wouldn’t see the children. [ 18 ] The next morning, Saturday July 22, 2006, D.T., his parents and the girls were in the kitchen getting breakfast when J.L. phoned and asked to speak with R.T..

Both M.T. and D.T. testified that they were all in the kitchen and could see and hear R.T. while she talked to her mother. It was a short conversation and they did not hear R.T. say anything unusual. R.T. did not appear upset when she spoke with her mother. R.T. said her mom wanted to speak with her dad and D.T. took the phone. J.L. told D.T. she had a concern about Mr. L. sleeping in the nude with the girls. [ 19 ] The children remained in D.T.’s care until Sunday July 23, 2006 at 6:00 p.m. when he took the girls back to their mother’s home.

The following Tuesday, July 25, 2006, D.T. was contacted by the Brighton OPP and asked to attend the police station. He was charged with sexual assault and released on the condition that he have no contact with his children. He did not see his children again until February 2009.

M.T.’s Evidence about R.T.’s Disclosure [ 20 ] M.T., D.T.’s mother, was with D.T. and the girls the weekend of R.T.’s alleged disclosure. She and D.T.’s father live in Brighton, Ontario, on Brighton Bay. They have lived there for 16 years. She has two children and four granddaughters. She is a municipal counsellor for the Municipality of Brighton. She was a credible witness, and she provided a detailed account of her last weekend visit with her granddaughters.

She corroborated much of D.T.’s evidence about this weekend, and about the girls’ bedtime routines during access visits. [ 21 ] M.T. recalls picking the girls up from the maternal grandparents’ home on Friday July 21, 2006. She knew that D.T.’s divorce application had been served. She says that when the girls stayed overnight, they slept in the upstairs toy room that she had converted into a bedroom and D.T. slept downstairs in the sunroom. She was always there in the evenings with D.T. and the girls and she doesn’t remember them ever being in bed before she got home.

She was always there when D.T. put the girls to bed. [ 22 ] She recalls that Friday night was a fun night because a friend of D.T.’s was there with his children and they did kid things and had fun. The next morning they were all getting breakfast when the phone rang. It was J.L. and she asked to speak with R.T.. It was a short phone conversation and M.T. didn’t hear R.T. say anything unusual. R.T. then said “Mommy wants to speak to you, Daddy” and D.T. got on the phone. D.T. got upset and went outside to finish the conversation. She kept R.T. and C.T. busy inside the house.

When D.T. came back inside he told her what J.L. had said to him. D.T. lifted R.T. up and sat her on the kitchen counter and said that he wouldn’t do anything to hurt her. D.T. was calm when he spoke with R.T.. He did not raise his voice or get angry with her, and neither did M.T.. [ 23 ] The rest of the day was just a normal day, and D.T. and the girls went to his sister T.B.’s for a swim. They returned home that evening near the girls’ bedtime. D.T. went upstairs to put C.T. to bed first, and she was with R.T..

R.T. started to cry and said “I think I’ve done something wrong” and M.T. reassured her that she had done nothing wrong. She carried R.T. upstairs and put her to bed. Then D.T. settled both girls and came back downstairs. The girls always wanted their father to read to them at night, and R.T. often called to her father to lay down with her until she fell asleep. At one point that night C.T. woke up crying and M.T. got up to see if she was okay, but D.T. came running up the steps and said he would settle them down.

The next day the girls seemed fine and D.T. took them home. [ 24 ] Two days later, on July 25, 2006, D.T. was charged with sexually assaulting R.T.. Although all of the overnight access visits occurred in her home, including the last visit, M.T. was never interviewed by the police, by the NCAS or the Hastings Children’s Aid Society. D.T.’s Evidence about R.T.'s Alleged Disclosure [ 25 ] D.T. says he had a great weekend with the girls. They went swimming and fishing, and ordered pizza.

He recalls the girls sleeping downstairs on the first floor of the cottage but his evidence is not consistent with his mother’s evidence. She recalls that the girls slept together in one of the two upstairs bedrooms. [ 26 ] I accept M.T.’s evidence about the sleeping arrangements. She has a better and more detailed recollection about the events surrounding R.T.’s disclosure and the criminal charges against her son.

For example, she recalls that her son did place R.T. on the kitchen counter but D.T. has no memory of this. [ 27 ] D.T. says he always read stories to the girls and he positioned himself in the middle of the girls, on their bed, and read to them until they fell asleep. He said R.T. often called for him to lay down with her until she fell asleep. [ 28 ] D.T. says he did lie down with his daughters and read them stories at bedtime. He would lie down between the girls and they often fell asleep when he read. He was always fully clothed, and he never slept in the same bed with them.

He says he has never been sexually inappropriate with either of his daughters. [ 29 ] The night his mother picked the girls up, July 21, 2006, J.L. called him and threatened him that he wouldn’t see the children. On Saturday July 22, 2006 they were all sitting around having breakfast when J.L. phoned. She spoke with R.T. first and then asked to speak with him. When he talked to her she said that R.T. told her he was sleeping in the nude with the girls. D.T. says he was right there when R.T. was talking to her mother and he didn’t hear her say anything unusual.

He admits that he got angry and the conversation became “heated”. He left the kitchen and went outside on the deck to talk to J.L.. He does not remember picking R.T. up and placing her on the kitchen counter to talk to her about what J.L. had said, but both his mother and his sister recall that this happened. I accept D.T.’s evidence that he does not remember doing this, and isn’t just trying to deny that it happened.

There would be no reason for D.T. to deny that this happened since there would have been nothing wrong with D.T. talking to his daughter in a calm manner, as described by both his mother and his sister, to reassure R.T. that he would never hurt her. [ 30 ] D.T. dropped the girls off at their mother’s residence on the Sunday night and he recalls getting a lot of stares from J.L. and her parents. There was no conversation. The following Tuesday, July 25, 2006 he was contacted by the police and he went down to the police station and was charged with sexual assault against R.T..

He was released on the condition that he have no contact with his children. Evidence of T.B. about Weekend of R.T.'s Alleged Disclosure [ 31 ] D.T.’s sister, T.B., testified. She is married to M.B. and they have two girls, Natasha, 13, and Kara, 10. She works as an early childhood educator in a kindergarten program and her husband is a firefighter. She recalls D.T.’s last weekend with the girls in July 2006. She arrived at her mother’s home and found D.T. visibly upset. Darren told her about his phone conversation with J.L. and her accusation that he had slept nude with his girls the night before.

She went into the house and her mother and father were inside with both girls. She did see D.T. pick R.T. up and sit her on the kitchen counter and talk to her. He was not yelling or upset when he talked to R.T.. He just told her that he would never hurt her. The girls were playing when she arrived and seemed fine. The next day, Sunday, D.T. brought the girls to her house to play in her pool. They were in her daughter’s bedroom and R.T. made a comment about S.T. who

used to be our neighbour and is now her mother’s boyfriend. Then R.T. said to her father that she wished S.T. could go back to being our neighbour and we could be like before. J.L.’s Evidence about R.T.’s Disclosure [ 32 ] J.L. testified about R.T.’s disclosure in July 2006. She says that R.T. had been telling her about her dad being in his underwear when he was reading her stories, and about her dad sleeping with her.

She said she knew that R.T. liked having someone lay down with her at night so she wasn’t concerned but then, right before the last access visit, R.T. said her father had no underwear on and she felt him rubbing against her leg. J.L. says R.T. said this right before the access visit so she called her lawyer, and decided to let R.T. go. She said she talked to R.T. and they came up with a code word “macaroni”, that R.T. was supposed to use if D.T. was inappropriate again. She called R.T. the next morning and R.T. said “macaroni” so she asked to speak with D.T. and told him what R.T. said.

D.T. got upset and hung up on her. Then she called Ms. Castonguay at the NCAS. Ms. Castonguay thought maybe it was just bad judgment on D.T.’s part. So J.L. called her sister-in-law and she advised her to call the police. When R.T. came home on Sunday night R.T. said that they had yelled at her and called her a liar. Evidence of Isabel Castonguay, NCAS Protection Worker [ 33 ] Ms. Castonguay has been a protection worker with the NCAS since 1990.

On July 22, 2006 she received a report from J.L. that R.T. was reporting that during access her dad was laying on the bed with her and C.T. and he would occasionally be naked. J.L. told her that R.T. had called from her father’s residence to complain. Ms. Castonguay suggested that J.L. talk to D.T. again about R.T.’s comfort level. She said she intended to send a letter to D.T. to caution that such behaviour, if it was occurring, was inappropriate. The file was closed. [ 34 ] J.L. did not tell Ms. Castonguay that she had been served with a divorce application just three days earlier, on July 19, 2006.

She said that if she had known this she would have asked J.L. about this. When she spoke with J.L. on July 22, 2006 J.L. didn’t appear to be concerned about R.T.. She seemed to be just questioning D.T.’s judgment. [ 35 ] Two days later on July 24, 2006 Ms. Castonguay received a report from Brighton OPP that R.T. had disclosed sexual abuse by D.T.. The report to the police was made by R.T.’s maternal aunt. [ 36 ] Ms. Castonguay was assigned to investigate these allegations, along with Detective Andrea Pewtner of the Brighton OPP. Ms. Castonguay and Det.

Pewtner conducted a joint interview of R.T. and a transcript of that interview was filed as Exhibit #1 in this proceeding. During that interview R.T. said that her dad would lie down with her and C.T. at night and read them stories and she would awake and “my dad kind of humps me in the night and I don’t like it...because he is humping my leg” . She further stated “He doesn’t sleep in the nude; he humps me with his shorts on.” She said she could see his wiener sometimes and feel it on her leg. She said she loved her dad, and liked him reading her stories but didn’t want him to hump her.

She said her dad did not hump C.T., only her. R.T. told her that her dad would drink and would stagger when he drank and act “whacko” and she described the beer cans he would drink from. [ 37 ] On July 25, 2006, the day after R.T.’s interview, D.T. was charged with sexual assault, sexual interference, and sexual exploitation of R.T.. The police did not interview D.T.’s parents even though the sexual assaults were alleged to have occurred while D.T. was exercising access and all of the access visits occurred at his parents’ home. [ 38 ] Ms.

Castonguay commented during her testimony that when she met with J.L. while investigating R.T.’s disclosure, she did not feel that J.L. was being vindictive, since J.L. spoke about the girls having a good relationship with their father before the separation. However, Ms. Castonguay also acknowledged that J.L. did not tell her that she had just been served with D.T.’s divorce application which included a claim for custody. [ 39 ] The NCAS did not start a protection application because D.T. was on release conditions preventing him from having contact with the girls. Ms.

Castonguay recommended that J.L. and the girls receive counselling and she closed her file. [ 40 ] It is unfortunate that D.T.’s family members were not interviewed by either the police or the NCAS. Having heard and accepted the evidence of M.T., T.B., and M.B., it is clear that these individuals had relevant information about the girls’ bedtime routines and sleeping arrangements, and about D.T.’s sobriety after the parties separated in March 2006.

This information should have been obtained and taken into consideration by the police and the NCAS when assessing the strength and credibility of the R.T.’s allegations. [ 41 ] Even without any evidence or input from the father’s family, all of the charges against D.T. were withdrawn in August 2007 on the basis of there being no reasonable possibility of a conviction. Ms. Castonguay’s Involvement with J.L. and the children after July 2006 [ 42 ] Even though the NCAS did not start a protection application, Ms.

Castonguay remained involved with J.L., her mother, M.H., and R.T. and C.T. after July 25, 2006. [ 43 ] In October 2006 Ms. Castonguay reopened the file after she received a call from J.L. who was saying that C.T. had been repeating the disclosure she made in March 2006 and was saying that daddy hurt her and “dad put his finger in my gina”. She interviewed C.T. the next day and C.T. pointed to her privates and said she told dad “don’t do that” and he got angry but she could say when this happened. Once again Ms. Castonguay was unable to verify this disclosure and she closed her file. [ 44 ] Ms.

Castonguay next heard from J.L. on November 3, 2006. J.L. called her to tell her that R.T. had brought up some additional information and was now saying her dad’s penis was hard and wet and pressing against her vagina. Ms. Castonguay conducted another joint interview with Detective Pewtner of R.T. on November 9, 2006. A transcript of this interview has been filed as Exhibit #2 in this proceeding. Both Ms. Castonguay and Detective Pewtner concluded that R.T. was fabricating and they became concerned that R.T. was being exposed to too much adult information from the maternal family.

[ 45 ] The contrast between R.T.’s first and second police interviews is both striking and disturbing. In the first interview she describes her father, lying beside her fully clothed and “kind of” humping her leg.

She did not express any fear of her father and, in fact, when asked during the first interview to describe how she felt in picture that she drew, R.T. responded that she wished her dad liked her stepdad and she wished her mom and dad still loved each other. [ 46 ] In the second interview, which occurs five months later, and after having no contact at all with D.T. or his family, R.T. describes waking up and to her father humping her and feeling something hard, like a bone, near her vagina. Ms. Castonguay said that R.T. presented as genuinely afraid, weary and apprehensive during this second interview.

She worried that her dad had magical powers and could come into her bedroom at night and hurt her. She has drawn pictures of her father chasing her with a knife, and she tells Ms. Castonguay and the officer that she remembers that “a long time ago” when she was four and C.T. was a baby, she saw her father change C.T.’s diaper and she noticed him looking at C.T.’s “bird”. R.T. also describes seeing a “furry hand” that she believes is her father’s hand, moving across her door at night. [ 47 ] The following exchange between R.T. and Ms.

Castonguay raises significant concerns about R.T.’s emotional state at that time. While it seems clear that R.T. was feeling fearful, worried, ambivalent and angry, it is less clear that all of these feelings are directed at or caused by her father. She expresses confusion about where her loyalties should be and about who she should believe and she expresses anger at just about everyone, including God: Q. Alright, is there anything else you want to tell us? A. Sometimes I’m really, really confused because you know Michelle right. My step brother’s mom. Q . Yep A. She’s not really nice. Q: Have you met her?

A: Ya, she was my neighbour. Q: So what about Michelle? A: She’s uh. I don’t know like Michelle the boys believe her instead of their dad, the person they should really believe. So that’s what I’m thinking of, may be who do I believe, like I don’t want to believe the wrong one. I’m trying to get this straightened out. Like my dad’s been humping and my mom’s been spanking me when I do bad things right but we have to do that to control me right and I deserve that. Q: R.T., what are you confused about?

A: My mom like controls me, my dad doesn’t, he lets me do whatever I want so when I feel like there’s swears in my head. Okay, like there’s an f word.... so we’re like alone right? Q: Uh hm A: Okay, can I say the f word? Q: You can say it if you want. A: I have to because this is what happened. Q: Okay A: Okay it says fuck (points to head) in my head, I’m not even saying this in my head. It’s going like fuck jesus, fuck mom, fuck dad, fuck the dog and cat, fuck the persons that help you which is you and you, and I don’t know what’s going on in my head.

I think everybody had these like someone who looks like you, two of you one on your shoulders and one is in a hell costume and a nice one. Q: Ya and a nice one over here and a bad one over here and they are talking to you” A: That’s what I feel like and I don’t know, that’s the most of the my problem. I don’t know which one. My mom always told me to believe the angel and I don’t know if that’s the one that I really have to believe. Q: Sometimes it’s hard to know why things happen right. When you have the f word in your head and all this stuff, it doesn’t mean that you are going to say it.

It just means there’s a part of you that is angry. Can I tell you what I think you are angry about? I think you are angry at daddy and I think you may be a little bit angry at mommy because she has a new fiancé and you have brothers. All of these people you have to share mommy with now. Do you think that might make you a little angry? A: It makes the boys angry and I’m a little confused and scared. Q: I’m sure you are, R.T., it is scary. A: I’m scared of my dad. I feel like he’s magic and like he’s coming through the walls. I feel like he’s around me and I’m trapped in darkness.

I like listen in my head and when I listen to the swears in my head I think it’s showing that my dad is not the right one or one of them is not the good one, showing me which one is the bad one... [ 48 ] Between the time of the first police interview in July 2006 and this second interview in November 2006, R.T. was participating in

group therapy sessions for women and children experiencing family violence. [ 49 ] Ms. Castonguay testified that following this second interview with R.T. she became concerned because R.T. was describing all this “fantasy” stuff about her dad. Ms. Castonguay testified that it was clear to her after the second interview that R.T. was fabricating things. Ms. Castonguay started to worry that R.T. was saying things that would result in her being re-interviewed and therefore feeling validated. [ 50 ] Ms.

Castonguay explained that R.T.’s tirade worried her and she was concerned that R.T. was “spinning out of control”, and was “starting to internalize what other people were saying”. [ 51 ] She felt that the group therapy wasn’t positive for R.T. and that R.T., who was by then meeting with social workers, professionals and police officers, where she was the subject of their undivided attention, was becoming “trapped in the process with no way of letting it out”. Ms.

Castonguay testified, prophetically, that she was “concerned that this would become something that would consume her” and that the experience of her disclosure and the criminal and child protection proceedings, was becoming “bigger than life” for R.T.. [ 52 ] Astonishingly, following the second interview with R.T., and despite her own concerns that R.T. was hearing too much adult information from the maternal family, Ms.

Castonguay suggested to J.L. that she allow R.T. to draw pictures of her dad and then suggest that R.T. rip the picture up so that R.T. could see that he was “just little pieces of paper” and couldn’t hurt her. Under cross- examination, Ms. Castonguay defended this exercise and displayed little insight into how an exercise that involved R.T. destroying images of her father might reinforce R.T.’s negative perception of her father.

Withdrawal of the Criminal Charges in August 2007 [ 53 ] In August 2007, just days before D.T.’s criminal trial was scheduled to proceed, he was advised by the Crown that the charges against him were being withdrawn because the Crown had determined that it had no reasonable prospect of obtaining a conviction. [ 54 ] J.L. testified that she and R.T. found out that the charges were being withdrawn when they went to the Crown’s office for what they thought would be a meeting to prepare R.T. for testifying.

She says that when they were told that the charges were being withdrawn “because there was no way they could win” R.T. became very upset because she was ready to testify. [ 55 ] After the charges were withdrawn, D.T. instructed his counsel to recommence the divorce proceedings. When J.L. received a letter from D.T.’s lawyer saying that D.T. wanted to start seeing his children, she contacted the NCAS.

NCAS Protection Application Commenced in October 2007 [ 56 ] In response to D.T.’s quest to gain unsupervised access to his daughters through the divorce proceedings, the NCAS started a protection application on October 25, 2007.

In its application, the NCAS sought a finding that R.T. and C.T. were in need of protection on the ground that there was a risk of emotional harm. [ 57 ] It is significant that notwithstanding the extensive involvement of J.L. and the children with the NCAS from March 2006 until October 2007, all of which involvement was focused on the children’s alleged disclosures of sexual abuse and the outstanding criminal proceedings, the NCAS did not ask for a finding that the children were at risk of sexual harm. [ 58 ] The NCAS asked for a six month supervision order, with the children remain in their mother’s care, subject to access by D.T. supervised by the Society, for a minimum of once per week for one hour, and conditional on D.T. accepting “direction from the Society and Kinark Child and Family Services regarding ways that he and his family members should communicate with the children about the current child protection and custody/access matters”. [ 59 ] The Society asked that J.L. be required to abide by the following two terms of supervision.

The first condition was that J.L. would ensure the children attend for counselling at Kinark, and the second condition was that J.L. “ accept direction from the Society and Kinark Child and Family Services regarding ways that she and her family members should communicate with the children about the current child protection and custody/access matters.” [ 60 ] With the commencement of child protection proceedings by the NCAS, D.T.’s divorce and custody proceedings in Superior Court were once again “on hold”. [ 61 ] D.T. continued to maintain his innocence with respect to the sexual abuse allegations and refused to consent to any order in the child protection proceedings that would require him to have supervised access at the Society offices.

Evidence of April Shaw, Child Protection Worker, NCAS [ 62 ] April Shaw, a child protection worker with the NCAS, assumed responsibility for the T. file in September 2007 after D.T.’s criminal charges were withdrawn and in response to D.T.’s attempt to resume his divorce application and seeking custody and/or access to his children. Before the protection proceedings were formally started, Ms. Shaw’s role was to support the children through the custody/access proceedings to ensure that the children’s safety was addressed in those proceedings.

In an Affidavit sworn October 25, 2007 filed in support of the NCAS’ protection application, Ms. Shaw describes the Society’s initial position regarding the custody/access dispute: “ The Society took the position that a Children’s Lawyer should be appointed for the children and that D.T.’s access with the children should initially be supervised until the counsellor involved with the children assessed that they felt safe with him. “ [ 63 ] At paragraphs 15 and 16 of the same Affidavit, Ms. Shaw explains the protection concerns of the Society, which included concerns about both parents:

“ On September 21, 2007 following a case conference between Mr. and M.T. regarding the CLRA matter, the Society re-opened the file for child protection purposes, based on concerns that D.T. planned to request unsupervised access to the children. In addition, the Society had concerns about the impact of the maternal extended family members’ influence on the emotional well-being of the children.

Specifically, it was identified that the children had been privy to an abundant amount of adult information about the proceedings and that they had not been provided the counselling to permit them to move forward from the abuse they experienced. “ [ 64 ] According to Ms. Shaw’s case notes, Ms. Shaw learned during a meeting with J.L. and the maternal grandmother, M.H., on October 29, 2007, that M.H. had been sexually abused by her own father, and that M.H.’s father had abused three of her own children, not including J.L.. [ 65 ] Ms.

Shaw testified that she did have some concerns about J.L. exposing her children to adult conversations about the protection and custody/access issues. She said that on one occasion she arrived at J.L.’s home and heard J.L. talking on the phone with the counsellor from Kinark. She said she cautioned J.L. about talking on the phone when the kids were home. At one point she asked mom and grandmother to meet her in the Society offices because she wanted to talk to them without the children being around. [ 66 ] However, Ms. Shaw says she felt that J.L. was being cooperative with the Society. [ 67 ] According to Ms.

Shaw’s case notes, during a meeting with the family on a March 4, 2008, R.T. presented as very tearful and sad, saying that she missed her father and wanted to see him at the Society offices, supervised. Ms. Shaw felt that R.T. seemed genuine that day, and she told R.T. she was trying to put a plan in place so that R.T. could see her father. [ 68 ] Ms. Shaw testified that D.T. was not cooperative with the Society because he was unwilling to meet with her and did not return her phone calls. She said that D.T. did not want to be involved with the Society and did not want his access supervised at the Society office.

Dr. Voysey’s “T./M.H. Family Communication Enhancement Project” and the Decision by the NCAS to Withdraw its Protection Application [ 69 ] When the Society suggested that an assessment be conducted, D.T. refused to consent to a court-ordered assessment and instead proposed that Dr. Voysey become involved to establish an access plan. The Society agreed that Dr. Voysey could conduct the assessment, and D.T. retained Dr. Voysey privately, even paying for J.L.’s travel costs to meet with Dr. Voysey. [69] Ms. Shaw said that Dr.

Voysey’s plan satisfied the Society’s protection concerns. [ 70 ] On January 23, 2009 the Society filed a Consent to Terminate its Protection Application. A copy of Dr. Voysey’s “T./M.H. Family Communication Enhancement Project” (the Voysey plan) was attached to the Consent, and the terms of the consent, filed as Exhibit #3 in this trial, were as follows: “ The Children’s Aid Society of Northumberland terminates the proceedings and the parties agree to follow the Communication Enhancement Project prepared by Dr.

Voysey on an interim basis pending trial of the domestic proceedings, bearing court file number 240/06”. [ 71 ] Ms. Shaw testified that the NCAS expected that the access between D.T. and the children would progress to being unsupervised in accordance with Dr. Voysey’s plan. Ms. Shaw confirmed during her testimony that when the Society terminated its involvement, there were no assessments of the father that were outstanding or were to be completed. [ 72 ] The stated goal of the plan was to “safely improve the father –daughter relationship between D.T. and his two daughters ”.

Access was to start with supervised therapeutic access at Stevenson Waplak and Associates in Belleville. [ 73 ] Paragraphs 11, 12 and 13 of the plan contemplated the possibility of further involvement of an assessor after 12 sessions, before access was transitioned to untherapeutically supervised access, and again before access transitioned to unsupervised access: “11. After a minimum of twelve sessions this process can be assessed by an assessor (such as Dr. Voysey) and adjustments made. 12.

Transitions to untherapeutically supervised access, involvement of other family members and changes of location should all be made in consultation with an assessor. 13. Termination of supervised access should also be made with the assistance of and consultation from an assessor. “ [ 74 ] However, the Consent to Terminate filed by the NCAS states that the termination of the protection proceedings was based on the parties’ agreement to follow the Voysey plan “on an interim basis” only pending trial of the domestic proceedings.

And there was no additional requirement that the NCAS approve any out of court settlement by the parties, or any provision allowing unsupervised access by D.T.. Evidence of Margarida Madieros, Kinark Counsellor [ 75 ] In August 2007, the children were referred to Ms. Margarida Medeiros, a counsellor at Kinark Child and Family Services. After a waiting period of eight months, both girls started to receive counselling form Ms. Medeiros starting in May 2008. [ 76 ] Ms. Madieros testified at length and was extensively cross-examined.

She met with the girls regularly while they were having supervised access with their father in accordance with the Voysey plan. [ 77 ] During her testimony Ms. Medeiros described her role as that of a “supportive counsellor” for the girls but it is clear from the evidence that Ms. Madeiros acted as an advocate for J.L. and the girls, especially R.T.. J.L. and her mother, M.H., attended many of the girls’ counselling sessions, and were in regular phone contact with Ms. Madeiros. Ms. Madeiros attended meetings with Jeff Waplak

when the supervised access plan was being developed, and she was present during the first visits between the girls and their father which occurred on February 12, 2009. She provided ongoing input to the access supervisors about what the girls were telling her they were feeling during and after the visits. [ 78 ] Ms. Madieros presented as vague and defensive at times. She maintained that because the Crown withdrew the criminal charges, she did not approach her counselling role on the basis that the girls had in fact been sexually abused.

She was aware that April Shaw, of the NCAS was concerned that the children were being exposed to a great deal of adult information from the mother’s family, that R.T. was taking on a parentified/adult role in the family, and that R.T. was becoming entrenched in the situation. April Shaw also informed Ms Madieros that J.L. was very anxious and was worried about losing her relationship with her current partner, S.T., because C.T. was afraid of S.T.. [ 79 ] One week after the supervised access visits finally started, on February 17, 2009, J.L. told Ms.

Madieros that when she was driving the girls to their counselling session she saw D.T. driving by her house. J.L. told Ms. Madieros that she told the girls she saw “D.T.” and she called the police in front of the girls. J.L. told Ms. Madieros that the girls were going to be interviewed by the police that evening, even though neither girl had seen their father. At that time D.T. was not subject to any criminal conditions or restrictions preventing him from being in the vicinity of J.L.’s residence. [ 80 ] J.L.’s alleged “sighting” of D.T. near their home did have an impact on R.T..

During this same session on February 17, 2009, R.T. told Ms. Madieros that after the first visit, she was beginning to think her dad loved her a bit and had changed, but this incident now made her think he really hadn’t changed and she was now even afraid to play outside. [ 81 ] Ms. Madieros had been present at the first visit just a week earlier and she knew that, even after a separation of almost three years, the girls had enjoyed their first visit with their father.

Ms Madieros could have tried to reassure R.T. by suggesting that her father may have been just passing by and meant no harm, but instead she reinforced J.L.’s perception that D.T. was a person the girls needed protection from. She supported the involvement of the NCAS and the police, and she even prepared R.T. for her meeting with the police.

She also suggested in this meeting to R.T. that she could contact the Office of the Child Advocate and she told J.L. that she could apply for a restraining order. [ 82 ] D.T. was never even contacted by the police or the NCAS about this alleged incident and he says that the incident never occurred. [ 83 ] Even when Ms. Madieros was involved with the implementation of the therapeutically supervised access, the only parent she received any input from was J.L.. When D.T. tried to contact her to find out how the counselling sessions were going she did not return his calls.

When R.T. wrote out questions for her father and D.T. submitted his written answers to Ms. Madieros so that she could relay these answers to R.T. in the context of the therapeutic sessions, Ms. Madieros, in consultation with her supervisor, decided not to share his answers with R.T.. Ms Madieros did not bother telling D.T. that she would not be sharing his answers with R.T.. [ 84 ] Ms. Madieros said that R.T. was her client, and that her role as R.T.’s counsellor was to “privilege R.T.’s experience”. Ms.

Madieros was not concerned about how J.L. or M.H. might be influencing R.T.’s perceptions or her anxieties about the access visits. [ 85 ] Ms Madieros testified that when she first began counselling sessions with the girls she determined that C.T. had no memory of having been sexually abused by her father, and that C.T.’s main problem was her fear of J.L.’s current partner, S.T.. [ 86 ] J.L. told Ms.

Madieros that C.T. was afraid of S.T., that C.T.’s poor relationship with S.T. was creating a lot of stress in her household, and that J.L. was worried about losing her relationship with S.T. because of C.T.. [ 87 ] During cross-examination, Ms. Madieros admitted that she never explored with either J.L. or C.T. why C.T. might be fearful of S.T.. Instead, she accepted R.T.’s explanation that S.T. was a kind man and there was no reason for C.T. to fear him. [ 88 ] In her case notes, Ms. Madieros actually quotes R.T. (then eight years old ) as saying “ I wish C.T. didn’t cry at S.T. that much.

I think it’s because of what our real dad did – there’s lots of other good men in the world”. Ms. Madieros didn’t ask R.T. where she would have heard a statement like “there are lots of good men in the world” or why R.T. was blaming C.T.’s fear of S.T. on what their real dad did. At the time C.T. was expressing fear of S.T. it had been almost two years since the girls had seen their “real dad”. Ms. Madieros should have at least asked questions of C.T., to determine why C.T. was afraid of S.T.. [ 89 ] Ms.

Madieros continued to see both girls together while the supervised access visits were taking place even though the girls were reacting differently to the visits. Before the first visit took place R.T. told Ms Madieros she was angry about the visits being arranged but C.T. said she was excited about seeing her father. [91] When Ms. Madieros talked to the first access supervisor, Leslie Ford, about how the girls were feeling about the visits, she focused on R.T.’s anxiety and did not even mention that C.T. was excited about the visits. When it was suggested to Ms.

Madieros under cross- examination that C.T.’s needs and wishes always took a back seat to R.T.’s, Ms. Madieros agreed that C.T. was quieter and didn’t really express any concerns about the access. Ms. Madieros also agreed that R.T. felt that C.T. was being disloyal to R.T. when C.T. enjoyed herself during the access visits. [92] Although Ms. Madieros was involved in setting up the supervised access visits, by March 2009, only one month after the visits started, Ms. Madieros decided that she would not speak with D.T. about the access, and would not even communicate with the access supervisors at Stevenson Waplak.

Ms. Madieros testified that in consultation with her supervisors at Kinark she decided to confine her role to monitoring the girls’ feelings about the access. She routinely used a device she called a “fear thermometer” to gauge the girls’ level of anxiety about the visits; and when cross examined about this technique, she showed little insight into how a device called a “fear thermometer” might reinforce the girls’ negative perceptions about access. [93] Under cross-examination, Ms.

Madieros admitted that throughout her involvement as R.T.’s counsellor she did not know that M.H. had been sexually abused by her father, and that her father also abused three of M.H.’s children. Ms. Madieros agreed with the suggestion that this information about intergenerational sexual abuse in the mother’s family was relevant to her counselling role with the

children, because people with such a history have the potential to be hyper-vigilant and possibly over-react in the face of possible sexual abuse allegations. [94] It is clear from Ms. Madieros’ testimony that despite her protestations to the contrary, Ms. Madieros approached her counselling role with the children from the perspective that R.T. had been sexually abused by her father. Although she was aware of the concerns held by April Shaw and the NCAS, about the influence of the maternal family on the girls’ perceptions, she did not critically assess the information that she was receiving from J.L. or R.T..

Ms Madeiros testified that her therapeutic role with R.T. was to validate that what R.T. was saying, is what happened, and she did this, repeatedly, in C.T.’s presence. Supervised Access at Stevenson Waplak [95] After the NCAS withdrew its protection application in January 2009, it took another eight months for the parties to implement the Voysey plan. Stevenson Waplak became involved in arranging the therapeutically supervised access in February 2009 and the first supervised visit between D.T. and the girls occurred on February 11, 2009 at the Stevenson Waplak offices.

The notes detailing the observations of the access supervisors at Stevenson Waplak were filed as Exhibit #18. The first visit occurred on February 12, 2009. The visit was supervised by Leslie Ford. The girls’ counsellor from Kinark, Ms. Madieros, was also present for the first part of the visit and then spent the balance of the visit waiting in the next room with J.L. and M.H.. [96] Ms. Ford notes that before the visit started both girls said they were nervous and didn’t want to visit, but they “took a deep breath” and entered the room where their father was waiting.

The visit proceeded and the girls engaged in playing games and drawing pictures with their father. Ms. Ford writes that the girls were participating and enjoying themselves and that when she told the girls that the time for the visit was up “both girls asked if they could stay longer. They both did not want to leave right then”. When Ms. Ford took the girls to where their mother was waiting, both girls said they had fun. [97] The girls’ second visit with their father at Stevenson Waplak occurred on March 4, 2009. R.T. brought questions to the visit for her father and asked Ms.

Ford to give the questions to D.T. after she left. Ms. Ford notes that she gave D.T. the questions and he said he would respond to the questions and give his written response to Ms. Madieros since she was counselling R.T. and had helped R.T. process the questions. During a visit on March 18, 2009, R.T. was initially reluctant to participate in the visit and she asked Ms. Ford if her father had answered her written questions and Ms. Ford told R.T. that she thought the answers were going to be delivered to Ms. Madieros so that Ms. Madieros could go over the answers with R.T..

Later in the session R.T. did participate in the visit. Ms. Ford’s notes that a conversation about the sexual abuse allegation took place between R.T. and her father during the third visit, on March 18, 2009. She has recorded the following exchange which occurred while R.T. and her father were playing a game: “She said: ‘Dad why did you put your private parts on my leg?’ D.T. responded,’ I did not do that honey, when do you think that happened?” R.T. responded with “ That time we were staying at your Mom’s house and we all stayed in the same room”.

D.T. responded “I did not do that, R.T., and I did get your questions. I answered them and I am going to take them to Margarida’s office today so they will be there the next time you have an appointment with her”. D.T. also told R.T. that he was proud of her for being strong and asking the question. He told her that she could ask him any questions. R.T. said “Thank you”. And then we continued the game”. [98] Ms. Ford’s notes about that session indicate that after this verbal question and answer session, R.T. continued to play with her father for another 45 minutes. [99] Later that same day D.T. called Ms.

Madieros but she did not return his call. A few days later he delivered his written responses to Ms. Madieros’ office, but Ms. Madieros decided, in consultation with her supervisor, not to read the responses or share them with R.T.. D.T.’s letter was marked” Received but not read”.

The Consent Superior Court Order of Justice Hughes dated November 9, 2009 [100] While the Voysey plan was being implemented, and after the Northumberland CAS withdrew its protection application, the parents continued to negotiate the custody and access issues in their ongoing divorce proceedings. [101] The Consent to Terminate filed by the NCAS confirms that the NCAS was aware of the ongoing custody and access litigation when they withdrew its protection proceedings since the Society’s agreement to terminate was done on the condition that the parents would follow Dr.

Voysey’s Communication Enhancement Project “on an interim basis pending trial of the domestic proceedings, bearing court file number 240/06”. [102] Although the Consent between the NCAS and the parents, J.L. and D.T., refers to a “trial of the domestic proceedings”, it does not preclude the possibility of a settlement and it does not say anything about the parties being required to incorporate the terms of the Voysey plan into a final divorce order or agreement. [103] The Consent to Terminate does not include a condition requiring the parties to notify the NCAS in the event that the terms of access finally determined in the divorce proceedings do not mirror the terms of the Voysey plan. [104] Since the decision of the NCAS to withdraw its protection proceedings was based on the parties agreement to follow the Voysey plan “on an interim basis” only, and since the terms of the Consent do not anticipate or dictate what the terms of D.T.’s access should be in a final divorce order or agreement, it is reasonable to infer that the NCAS did not have ongoing protection concerns related to D.T. exercising unsupervised access to the children. [105] Ms.

Shaw confirmed that when the NCAS withdrew its protection application there were no assessments of D.T. that were outstanding or to be completed. [106] On November 9, 2009, the day before their trial was scheduled to commence in Superior court, the parents who were both represented by lawyers at the time entered into a Consent Final Order dealing with issues of custody and access. The terms of this

consent were negotiated following months of litigation, including several judicial case conferences and settlement conferences. The Final Order of Justice Hughes dated November 9, 2009 gives J.L. sole custody of the girls, subject to a specified, gradually expanding

schedule of access for D.T.. The terms of the Order, which detail a comprehensive and specific regime of access, are set out below: “The father shall have access to the children as follows: a. Commencing immediately, access shall be supervised by Stevenson Waplak and Associates until December 15, 2009 every Monday and Tuesday for 1 hour each; b. Commencing December 15, 2009 until March 15, 2010, access shall occur at the father’s home two (2) evenings per week on Tuesday and Thursday for 1.5 hours from 6:00 p.m to 7:30 p.m. and every Saturday or Sunday of each week for 6 hours from 12:00 p.m. to 6:00 p.m.

During this period of access, one of the following people shall be physically present to supervise the access: L.Q., C.Q. or J.Q.. One or more of these persons shall attend at Stevenson Waplak and Associates for the remaining sessions until December 15, 2009. c. Commencing March 15, 2010 and until June 30, 2010 the father shall have unsupervised access with the children two evenings per week for 1.5 hours on Tuesdays and Thursdays from 6:00 p.m. to 7:30 p.m. and every other Saturday and Sunday for 6 hours from 12:00 p.m. to 6:00 p.m. d.

Commencing July 1, 2010 the father shall have access to the children every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and to extend to the Monday until 6:00 p.m. if Monday is a statutory holiday. The father shall also have midweek access to the children every Wednesday at 6:00 p.m. to the following Thursday at 8:30 a.m. and the father shall transport the children to school on the Thursday morning; e.

The father shall have access to the children on Father’s Day of each year from 12:00 p.m. to 6:00 p.m. if he does not otherwise have access to the children on that day and the mother shall have the children on Mother’s Day from 12:00 p.m. to 6:00 p.m. if Mother’s Day happens to occur during the father’s weekend access; f. The following Christmas

schedule shall override the above regular access schedule: i. Commencing in 2010 and in even years thereafter, the father shall have the children from 6:00 p.m. on December 24 th to 4:00 p.m. on December 25 th and the father shall have the children from 4:00 p.m. on December 25 th to 6:00 p.m. on December 26 th . ii. Commencing in 2011 and in odd years thereafter, the mother shall have the children from 6:00 p.m. on December 24 th to 4:00 p.m. on December 25 th and the father shall have the children from 4:00 p.m. on December 25 th to 6:00 p.m. on December 26 th . [107] The Final Order is very comprehensive.

In addition to very specific access terms, it also contains a mobility clause requiring the mother to give 90 days’ notice of any intention to change the children’s residence or school, and divides the transportation responsibilities between the parents for access visits.

The order specifies that the father may attend all school events and requires the mother to notify him of these events, and it provides that both parents will “ encourage the children to have a good relationship with each parent; refrain from making disparaging remarks to the children about the other parent; and use their best efforts to ensure that family members and friends do not make disparaging remarks about the other parent in the children’s presence”.

Finally, the order provides that the parents will communicate by email but in the event of emergency they may communicate by phone. [108] Justice Hughes’ Order does not incorporate all of the terms of Dr. Voysey’s “Communication Enhancement Project”.

In particular, Justice Hughes’ Order specifies automatic start dates for supervised access by the aunts (December 15 2009) , and fully unsupervised access (March 15, 2010) and does not require or anticipate the involvement of an assessor during transitions from one phase of access to the next. [109] D.T. was negotiating in good faith when he agreed to the terms of access that are incorporated into the Consent Order.

For example, even though it would have been more convenient for him and his family to have his own parents or his sister or his new partner supervise his access visits in his home, when J.L. objected to these individuals as supervisors, D.T. agreed that his paternal aunts would be the supervisors. L.Q. and C.Q., both active grandmothers, started supervising D.T.’s access in the fall of 2009, and they have continued to supervise his access to this day. [110] Unfortunately, J.L. was not negotiating in good faith.

Unbeknownst to D.T. or his lawyer, J.L., who had moved from the Cobourg area to Trenton had been in contact with the Hastings Children’s Aid Society for months.

According to the files of the Society J.L. first contacted the HCAS on February 4, 2009, less than two weeks after the NCAS filed the Consent dated January 23, 2009, in which the NCAS agreed to terminate its protection proceedings and the parties agreed to follow the Voysey plan. [111] According to the HCAS records, J.L. called the Hastings Society on February 4, 2009 to report that she had been involved with the NCAS but was now living in the Trenton area, under the jurisdiction of the Hastings CAS.

She said that the girls’ father was sexually abusive, and the NCAS couldn’t do anything because she no longer lived in their jurisdiction. J.L. did not tell the intake worker about the terms of the Consent in the NCAS protection proceedings or the Voysey plan. [112] On February 19, 2009 the Society received a phone call from a Quinte West OPP officer reporting that J.L. had called the police to report seeing D.T. driving by her home. [113] On March 3, 2009, the HCAS received a call from a Mr. John Meston, of the Children’s Advocacy Office.

Mr Meston was calling on behalf of R.T. to advise that the NCAS was terminating but the family wanted the protection proceedings transferred. In fact by that time the NCAS had already terminated its application. [114] The HCAS records reveal that the Society received multiple calls from J.L. and M.H. in 2009 reporting concerns that the girls were being forced to attend access and didn’t want to go.

[115] While J.L. was continuing to report her concerns to the HCAS, the custody and access proceedings continued to be litigated in the Superior court in Cobourg. Before the Final Consent Order was entered into, there were several judicial conferences and several interim orders made, specifying D.T.’s access. [115] The divorce proceedings were originally scheduled to proceed to trial in May 2009 but only the divorce and property issues were resolved on that date.

Instead there was an interim access order made and the trial of the issues of custody and access was adjourned to the fall sittings in November 2009. [116] The interim order of Justice Ferguson dated May 4, 2009 provides in part that D.T. is to continue to have supervised access to the children at Stevenson Waplak for a “further period of six months or until trial of this matter” and that if “one or both of the children refuse to participate in the access visits that child will not be forced to participate in access but may be encouraged to participate in the visit”. [117] After the interim order of Justice Ferguson dated May 4, 2009, there were problems with the children not showing up for scheduled access visits at the Stevenson Waplak offices.

These problems with non-attendance are detailed in the Stevenson Waplak notes. J.L. testified that she was taking the girls to the visits but the girls were refusing to enter the building where the visits were to occur. [118] In August 2009 D.T. brought another motion to compel the girls’ attendance at the access visits and a further access order was made, on consent, specifying exact dates and times for the access. The order also provided that Ms. A. Gatti, of the organization Justice for Children and Youth, would be R.T.’s legal representative in the divorce proceedings. [119] According to the evidence of Dr.

Moss, and the Stevenson Waplak supervised access notes, both girls were happy and comfortable during the access visits and access visits were positive during the summer and fall of 2009. [120] However, J.L. continued to be in regular contact with the HCAS, during the summer and fall of 2009, to report her concerns that the children were being upset by the access, and did not want to go. [121] Under cross- examination, J.L. gave several reasons why she entered into the Consent Final Order on the eve of trial. The trial was scheduled to proceed on November 9, 2009, the day the Consent was signed.

Both parents were represented by counsel and the children were represented by a children’s advocate, Andrea Gatti. J.L. was being deceptive when she consented to the Final Order, since she had no intention of complying with the provisions of the order dealing with unsupervised access by the father. [122] J.L. testified that she had no money for the trial but she conceded under cross-examination that she reached the agreement to sign the Consent Order on the Friday before the trial was to commence, and just days before she married her current husband.

She was married on November 7, 2009, and the consent order was signed on what was to have been the first day of trial, November 9, 2009. [123] J.L. also said she felt forced by her former lawyer to sign the consent. However, J.L. was by then in regular contact with the Hastings CAS and she had a letter from the HCAS which confirmed the Society’s position that if D.T. was granted unsupervised access the Society would intervene to ensure that D.T.’s access remained supervised. J.L. says she showed this letter to her former lawyer, but she did not share this letter with D.T. or with his lawyer.

Supervised Access at Stevenson Waplak from February 11, 2009 to October 5, 2009 [124] The supervised access notes from Stevenson Waplak which covered the period of supervised visits at the Stevenson Waplak offices from the first visit the final therapeutically supervised visit on October 5, 2009 were filed as Exhibit #18. [125] In a case note dated April 29, 2009, Leslie Ford writes that while the girls arrive at each visit “with mixed emotions and visible anxiety about the visits”, the visits themselves seem to go well.

She notes that “R.T. and C.T. participate well in each session and ask to stay longer in each session to play more games”. [126] According to the supervised access notes, there were several prearranged visits in May and June 2009 that did not occur because the girls refused to participate in the visits. The girls were driven to the supervised access location by their mother and grandmother but they refused to get out of the car and the visits did not take place. I note that the trial in the domestic matter was originally scheduled for May 2009 and was adjourned with an interim access order in place.

A further motion to specify access was brought by D.T. in August 2009. [127] According to a Therapeutic

Summary Case note written by Jeff Waplak and dated June 23, 2009, J.L.’s lawyer contacted Mr. Waplak to complain that the access supervisors were not helping her client to convince the children to participate in the access visits. In his case note, Mr. Waplak quoted from a letter that he sent to the lawyers acting for both parents on June 9, 2009. In that letter Mr.

Waplak expressed concern that the children were refusing to participate in the access because J.L. and M.H. were not doing enough to encourage the children to participate in the access and the children knew that J.L. did not support the access: “It appears that M.T.’s beliefs and attitudes towards D.T. place her within an unmotivated position as parent to emotionally prepare, to have an assertive communication approach with her children, and indicate the safety of the organized sessions.

This is noted by M.T. seeking the support of Leslie Ford, or Andrew Moss to encourage the children to participate (should be her role) while still within the vehicle, and via the grandmother’s lack of involvement (passive nature does not assist). It is acknowledged that the children do require support from their mother pre and post access. Within access when participation occurs the supervising therapists are not reporting signs of distress with the children.

It appears a loyalty issue with the children knowing M.T.’s beliefs and attitudes towards D.T., thus going to access is directly choosing an activity that the children know their mother does not support. “ [128] By the end of July 2009, coincident with D.T. obtaining an interim specified access order, the supervised access visits resumed at Stevenson Waplak, and the supervised access notes describe positive, playful, relaxed, happy interactions between both girls and D.T.. In a supervised access note dated July 29, 2009, Dr. Moss writes: “Both children continued to show a relaxed demeanour, running

around the room and showing no signs of anxiety or tentativeness in their play.... Again, both children showed a clear wish to continue spending time with D.T. and no anxiety was noted.” In several of the access notes covering the months of August, September and October 2009, Dr. Moss writes that both girls were engaging well with their father, showed no signs of anxiety, and were consistently reluctant to end the visits. Evidence of Dr. Andrew Moss about Supervised Access Visits at Stevenson Waplak [129] Dr.

Andrew Moss, a clinical psychologist who received his doctoral degree in England specializing in adolescent and child psychology, was working at Stevenson, Waplak in 2009 and 2010. He was working there while he obtained his certification to practice independently as a psychologist in Canada. Dr. Moss explained that he was involved with the T. family from May 2009 to December 2009 and that his role was to supervise the visits between D.T. and the girls, to ensure that the children’s anxieties were mitigated as much as possible.

At that time he was not asked to assess risk or provide counselling for the girls. [130] Dr. Moss testified that when the visits first began there were times when the girls had to be encouraged to enter the building. He described R.T. as initially quite anxious and then becoming quite confident during the visits. At one point C.T. began to show anxiety and then eventually both girls were able to have access without any issues. [131] Dr. Moss said there were a few “stops and starts” at the beginning of access visits, but once the access got started there were “really very few issues”.

He saw a lot of trust occurring between the father and daughters to the point where R.T. would be out of his view and quite actively running around playing games with her father. Dr. Moss described R.T. as appearing confident in her demeanour, suggesting games such as tag, and role playing with her father. [132] Dr. Moss did see ongoing signs of the children’s anxiety. He noted, for example, that C.T. said she didn’t want D.T. to touch her. But over time the girls became more engaged and more interactive. Dr. Moss said the girls had a rule that any touching had to be instigated by R.T. and C.T..

D.T. respected that rule to the point that even when he passed the girls a can of pop he was very careful not to use that opportunity to even touch their hand. [133] Dr. Moss testified that in his clinical opinion it was natural for the children to feel anxious simply based on the fact that it had been a significant period of time during which the girls had not had access with their father. [134] Dr. Moss recalled that during one visit, R.T. asked her father “Why did you do it?” and D.T.’s response was “I wouldn’t do that, you know I wouldn’t do that”. In Dr.

Moss’ opinion, D.T.’s responded to R.T. in a very respectful way, and he saw no animosity or aggression between D.T. and R.T. during this exchange. [135] Dr. Moss testified that while the visits were still occurring at the Stevenson Waplak offices, the parties reached an agreement that the visits would occur outside of the offices, supervised by D.T.’s aunts, C.Q. and L.Q.. Both aunts were involved in last few months of supervised access visits to facilitate the transition from professional supervision to family supervision. [136] Dr. Moss said he supported this transition to untherapeutically supervised access.

Dr. Moss testified that as the supervised visits progressed the girls engaged positively with D.T. and were developing confidence and trust in their relationship. He also said that the girls were both indicating the desire to continue to develop a relationship with their father and enjoyed their contact with their father. [137] According to the testimony of Dr. Moss, who was the main supervisor of the access visits that took place at Stevenson Waplak, by November 2009 when the parties entered into the Consent Final Order in the Divorce action, the therapeutically supervised access visits were going very well.

The girls were happy and comfortable and appeared to be enjoying their visits with their father. [138] In the months of November and December 2009, when Dr. Moss was seeing positive progress in the access visits, and noting that both girls were happy and comfortable and displaying no signs of anxiety, J.L. was still reporting to the HCAS and to the girls’ counsellor, Ms. Madieros, that the girls were unhappy and anxious and did not want to attend the visits. [139] J.L. testified that she did try to encourage the children to visit with their father but she did not feel supported at Stevenson Waplak.

During cross-examination J.L. admitted that she wanted an assessment done because she believed that an assessment would result in D.T.’s access remaining supervised. When asked what she would have done if the assessment had recommended unsupervised access she responded: “ I don’t know what I would do, it’s a scary thought, I always had faith that that would not happen”. [140] J.L. testified that she first contacted the HCAS in October or November 2009 when she “knew the order was commencing” and she did so on the advice of Ms.

Madieros who told her that she had to make sure “this was a safe order to follow”. (In fact Society records say she first called HCAS in February 2009.) [141] She said that she wanted the HCAS to be involved and she supported the HCAS application for a supervision order because she was concerned about the possibility of both sexual and emotional harm to the children. She said she wanted access supervised by the Society and not by members of D.T.’s family because the girls had complained to her that during visits supervised by his aunts, D.T. was pushy, cornered them and upset them.

Evidence of Jane Robson, Protection Worker for the Hastings Children’s Aid Society [142] The first assigned ongoing worker from the HCAS was Jane Robson. She testified that the Society opened an ongoing protection file on January 4, 2010 and she had her first contact with J.L. on January 15, 2010.

J.L. told her that she felt pressured by her lawyer to sign an access agreement with her ex-husband, and that the agreement provided for supervised access in the father’s home, supervised by his aunts, progressing to unsupervised access by March 2010. [143] The HCAS started its protection application in mid February 2010. The application was signed on February 18, 2020 and was filed on March 1, 2010.

In its application the HCAS asks for a finding that the children are in need of protection based on the risk of sexual and emotional harm and asks for a six month supervision order, with the children remaining in the care of their mother, subject to

access by their father in the discretion of the Society. [144] Ms. Robson’s affidavit, sworn February 18, 2010 and filed in support of the Society’s protection application, does not provide the Court with full and balanced disclosure of all of the relevant information and contains numerous inaccurate and misleading statements. [145] Ms. Robson testified that when she was assigned to the file, her primary source of information was J.L.. Ms. Robson also spoke with individuals identified by J.L., including the girls’ counsellor, Ms. Madieros, the children’s teachers, and children’s family doctor. Ms.

Robson testified that the information she received from these sources confirmed the mother’s reports, that the girls were exhibiting signs of emotional distress and anxiety related to the access visits that were by then occurring in the father’s home, supervised by his aunts. [146] She did not speak with Jeff Waplak even though Mr. Waplak’s agency was directly involved in the implementation of Dr. Voysey’s recommended access plan and she did not ask to review the supervised access records of Stevenson Waplak. Ms. Robson did speak with Dr. Moss once to obtain his input about the access visits.

In her Affidavit at paragraph 38, Ms. Robson states that she was informed by Dr. Moss that the ”access eventually had progressed and was going well, but both girls were very sad and hesitant for the access to be moved from Stevenson, Waplak and Associates to their father’s”. At paragraph 39 she writes that “ Dr. Moss explained that with R.T.’s high levels of stress and anxiety unsupervised access may not be appropriate.” [147] At trial, Dr. Moss testified that after he spoke with Ms. Robson he was concerned that Ms. Robson was not hearing what he was saying.

He followed up his conversation with her with a letter to ensure that his input was not misinterpreted. While a copy of Dr. Moss’ letter was attached to Ms. Robson’s affidavit, the contents of Dr. Moss’ letter are not fairly reflected in Ms. Robson’s statements. In his letter Dr.

Moss writes that the girls were in fact ready to progress from therapeutically supervised access to access supervised by their aunts, in their father’s home; that the girls were not demonstrating any need to engage with further professional input to engage with their father; and that the girls were enjoying the access visits. [148] A copy of the letter written by Dr. Moss, to Jane Robson, of the Hastings CAS, was filed as exhibit #19. “ Further to our telephone conversation regarding the above, I am writing to confirm the main points of our discussion to ensure clarity.

During the period when R.T. and C.T. were engaged in supervised access within the offices of Stevenson, Waplak and Associates, there was good evidence that both children engaged positively with their father, building their confidence and trust, as indicated through greater levels of interaction. There was a period where R.T. did not choose to attend sessions however, following discussion between myself and her mother and maternal grandmother, an agreement was reached regarding the approach to take to reassure R.T.. Following this, no further issues with her attending supervised access were encountered.

The introduction of the children’s Aunts towards the latter sessions indicated a good ability to transition from professional supervision as the children appeared to bond well with other family members By the conclusion of the supervision offered by Stevenson Waplak and Associates the children were no longer demonstrating the need for any external professional input to engage with their father. Given the report that R.T. is struggling in the school environment currently (indicated through distressed behaviours), there appears to be a continued impression that R.T. has unresolved psychological issues.

I cannot offer specific advice regarding the approach to take, as this appears to be a therapeutic task to engage with R.T. regarding her cognitions, to identify what her problem behaviours are currently related to. I would suggest however that R.T. does engage with a professional, trained to work therapeutically with children, to identify if there are unmet psychological needs which require addressing.

My finding regarding access with their father, based on my experience in undertaking supervised access visits, is that the children indicated a continued wish to develop a relationship with their father, and enjoyed the contact they received from their father. I trust the above is useful in clarifying my previous input and impressions.” [149] In her Affidavit sworn February 18, 2009, Ms.

Robson also refers to information she says she received from R.T.’s teacher, L.A., and C.T.’s teacher J.H., about both girls expressing and exhibiting signs of anxiety directly related to their access visits with their father. [150] However, both of these teachers testified at trial and disputed or minimized these assertions. C.T.’s teacher, J.H., said that during the period from September 2009 to June 2010 C.T. was a delightful child.

She said there was only one incident in September 2009 when C.T. said she was afraid to see her father, and she didn’t notice any changes in C.T.’s behaviour from September 2009 to June 2010. [151] R.T.’s teacher, L.A., testified that she taught R.T. for two years, Sept 2008 to June 2009 and Sept 2009 to June 2010. She said that in the first year R.T. did appear shy and withdrawn but she found R.T.’s behaviour normal since she had just changed schools.

However during the 2009/2010 school year R.T. was an excellent student who showed no signs of distress or anxiety at school. [152] L.A. said that R.T. had a very successful school year and in fact stood at the top of her class. In fact, L.A. recalled telling a Society worker who called asking for a report on R.T. that R.T. seemed happier and her performance in school was good. [153] Jane Robson’s affidavit sworn February 18, 2010, is the initial affidavit that was filed by the Society, setting out the grounds for the Society’s protection application. This affidavit contains incorrect and misleading information.

The following statements made by Ms. Robson in her affidavit were not supported by the evidence at trial: 1.

That C.T.’s allegations of March 2006 were “not verified due to the young age of the child and the nature of her disclosure”: At trial, Isobel Castonguay testified that there were several reasons why the allegations were not verified, which included C.T.’s inability to use the language attributed to her by the maternal family members who reported the abuse; the fact that D.T. was found credible in his denial; and the fact that J.L. changed her story several times when she was interviewed about C.T.’s disclosure.

2. That criminal charges against D.T. were dropped “due to lack of evidence”. At trial, it was agreed by the parties that the criminal charges were withdrawn because the crown determined there was no reasonable prospect of conviction. 3. That the NCAS proceedings were terminated on January 23, 2009 “on the basis that the parents would continue to abide by the “plan” set up with Dr. Voysey for re-institution of access between D.T. and the children” and that D.T. would complete the appropriate assessments.

In fact, the Consent to terminate filed by the NCAS makes it clear that the NCAS terminated the protection proceedings on the condition that the parties would follow the Voysey plan on an interim basis, pending trial of the custody access issues in the divorce proceedings. 4. The NCAS file was closed because the family moved to Belleville. This statement is not accurate. The evidence before the court is that the NCAS agreed to terminate its involvement for reasons set out in the Consent to terminate. [154] At paragraphs 57-60 of her affidavit, Ms.

Robson sets out the concerns raised by the children that D.T.’s aunts were not properly supervising the visits. By February 2010, D.T.’s aunts, L.Q. and C.Q., had been supervising the visits for several months. These women had first hand and relevant information about how the visits were being supervised and how the children were doing during the visits. At trial, both women, who I found to be credible and reliable witnesses, testified tha

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