Native Child and Family Services of Toronto v. T.L.G., 2023 ONCJ 125

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

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

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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. ONTARIO COURT OF JUSTICE CITATION: Native Child and Family Services of Toronto v. T.L.G., 2023 ONCJ 125 DATE: March 9, 2023 COURT FILE No.: CFO-21-15974-00A3 BETWEEN: Native Child and Family Services of Toronto Applicant, — AND — T.L.G. Respondent -and- G.R. Respondent -and-

N.G. Respondent -and- J.A.N. Respondent Before Justice W. Kapurura Heard on February 27, 28 and March 1 st , 2 nd , 3 rd , 2023 Reasons for Judgment released on March 9, 2023 Lisa Hayes........................................................................ counsel for the applicant society Reide L. Kaiser........................................................... counsel for the respondent, T.L.G. Julia Tremain................................................................. counsel for the respondent, G.R. Jeffrey A. Blayways..................................................... counsel for the respondent, N.G.

No appearance by or on behalf of J.A.N.(noted in default on February 3, 2022). Lisa Laborde....................................... counsel for the Office of the Children’s Lawyer, legal representative for the child K-L Martha Chamberlain......................... counsel for the Office of the Children’s Lawyer, legal representative for the child children MJH and PAR JUSTICE W. KAPURURA: Part One – Introduction [ 1 ] There are five children before the court.

All five children are Metis, with no identified Metis community. [ 2 ] T.L.G. is the mother to all five children. [1] The following are members of the family: Child: K-L (14 years old). She is currently placed with her stepfather, G.R. Father: J.A.N. Child: MJH (12 years old), currently placed with his father. Father: G.R. Child: PAR (10 years old), currently placed with his father. Father: G.R.

Child: ENG (5 years old), currently placed with maternal grandparents. Father: N.G. Child: EVG (4 years old), currently placed with maternal grandparents. Father: N.G. [ 3 ] This trial was about whether these five children are in need of protection. [ 4 ] The main protection issues arise out of the child K-L’s allegations of sexual abuse against N.G. (the mother’s husband), and the mother’s failure to protect the children. [ 5 ] The society seeks a finding pursuant to clauses 74(2)(b), 74(2)(c), 74(2)(d), 74(2)(h), and 74(2)(

k) of the Child, Youth and Family Services Act, SO 2017, c14, Sch 1 , (‘the Act’), regarding the child K-L. [ 6 ] The society seeks a finding pursuant to clauses 74(2)(

d) and 74(2)(

k) of the Act regarding the other four children. [ 7 ] The OCL and the respondent, G.R., are not opposing the society’s request. They did not present evidence. [ 8 ] The mother did not provide instructions to her counsel regarding her position at trial. She did not file materials for the trial. She did not attend the trial. Mr. Kaiser, her counsel, participated in the trial but did not make closing submissions given the absence of instructions from his client. [ 9 ] The respondent, N.G., agrees to a finding under clause 74(2)(

k) of the Act concerning his two biological children. He is not planning for the other three children. He did not file materials for the trial. He did not attend trial. [ 10 ] The respondent, J.A.N., was noted in default on February 3, 2022. He did not participate in the trial. [ 11 ] All parties agree to statutory findings being made pursuant to subsection 90(2) of the Act. [ 12 ] The case management judge, Justice S.

O’Connell, endorsed on December 19 th , 2022, that, on consent of the parties, the hearing was bifurcated on the issue of protection finding given the difficulty of planning and disposition without a finding that the children are in need of protection. [ 13 ] The issues for the court to determine are as follows: i. Whether each child before the court is in need of protection? ii. If so, what are the specific provisions of the Act in support of a finding in need of protection regarding each child?

Part Two – Background facts 2.1 – Undisputed facts [ 14 ] The society circulated a Form 20 request to admit, ahead of the trial. The parties, except for the OCL, provided their written responses to the request to admit, either admitting or not disputing the information contained in the request to admit. [ 15 ] The following facts are undisputed. [ 16 ] The mother identifies as Metis through her mother’s lineage.

The maternal grandmother [2] , (‘grandmother’) advised a child and family wellbeing worker, Nicholas Burgess-Carvalho, that she is Metis and was not able to identify a specific Metis community. [ 17 ] There are currently no Metis communities that have been listed pursuant to

section 68 of the Act. Accordingly, no Metis organization was named as a party to this proceeding. [ 18 ] The mother and G.R. were involved in a relationship from on or about May 2009 to February 2013. They were never married but lived together. [ 19 ] Even though G.R. is not the biological father to the child, K-L, K-L was seven months old at the time the mother became involved with G.R . He acted as a father figure to K-L, and she referred to him as “daddy”. [ 20 ] The mother and G.R. were parties to a 15-day custody and access trial heard by Justice O’Connell in early 2016.

A detailed trial decision was released on March 21, 2016 ( T.E.H. v. G.J.R ., 2016 ONCJ 156 ). Justice O’Connell found that the evidence was undisputed that G.R. had acted as a father towards K-L since she was an infant. (para 478 of the trial decision). [ 21 ] Justice O’Connell noted that the mother testified during the trial that, prior to meeting G.R. , she was involved with another man, J.A.N., who was the biological father to the child, K-L. She testified that J.A.N. was “extremely violent and dangerous” and was also a “sexual offender”. She testified that he physically and sexually assaulted her.

She testified that she moved with him to Newfoundland at some point and that K-L was born when she was 19 years old. (paras 46 and 47 of the trial decision).

[22] At some point, the mother returned to Ontario with K-L. On March 27, 2009, the mother was granted final custody of K-Lwith no access (parenting time) to J.A.N. (para 47 of the trial decision). [23] A reported criminal court decision from 2013 [ R. v.

N, ] reveals that J.A.N. pled guilty to internet luringand sexual interference with a 14-year-old girl and was sentenced to thirty months in prison and three years’ probation, with conditions,including sex offender registration. [24] At the conclusion of the 2016 domestic trial between the mother and G.R., the court made an order on August 19, 2016,placing the three children, (K-L and G.R.’s two biological children, MJH and PAR) into the joint custody of the mother and G.R.

Thisorder was varied on September 25, 2019, when custody of the children K-L, MJH and PAR was granted to the mother, with G.R. havingaccess on weekends. [25] The mother and her current husband, N.G., were married on August 20, 2016. [26] They have two children together, namely ENG and EVG. [27] The mother and N.G. traveled to Newfoundland by car in July of 2020 with the children, K-L, ENG, and EVG.

They did notreturn to Ontario until January 2021. [28] During her trip to Newfoundland from July of 2020 until January 2021, the mother left her other two children (G.R.’sbiological children, PAR and MJH), in the care of G.R.

Both children have remained in the continuous care of G.R. since July 2020. [29] During the six-month trip to Newfoundland, the mother introduced K-L to her biological father, J.A.N., and they spent timetogether. [30] When the mother failed to return to Ontario from Newfoundland in the summer of 2020, G.R. (who had his two biologicalchildren in his care) brought a motion to change the final order of Justice O’Connell dated September 25, 2019. [31] The mother and her husband, N.G. returned to Ontario around January 2021.

They moved in with the maternal grandparentswho reside in Scarborough. [32] On January 26, 2021, the society intake screening received a re-directed interprovincial request from the Catholic Children’sAid Society of Toronto that originated from the Ministry of Child and Youth Services in Newfoundland. The family had been identifiedas Metis in the interprovincial request. [33] The society opened a file in relation to the mother and her husband, N.G., on January 26, 2021.

The society worked on avoluntary basis with the family between January 26, 2021, and June 9, 2021. [34] On May 31, 2021, Justice O’Connell made a temporary order in the domestic proceeding granting G.R. primary residence anddecision-making responsibility with respect to his two biological children, MJH and PAR. [35] N.G. was arrested on May 16th, 2021, and was charged with the following offences: i. Sexual assault, contrary to

section 271 of the Criminal Code. ii. Touching for a sexual purpose, contrary to

section 151 of the Criminal Code. iii. Fail to comply with probation, contrary to

section 733.1(1) of the Criminal Code. [36] The charges relate to an incident of May 15, 2021, involving the child, K-L. K-L is the complainant on the first two counts. [37] N.G. was released on bail on May 17th, 2021.

His bail conditions include conditions that he is not to contact the mother nor K-L and is not to be in the presence of any person under the age of 18 years, unless in the direct presence of another person 18 years orolder. [38] N.G.’s next court date in the criminal matter is set for January 2024, for a preliminary hearing. [39] On May 20th, 2021, the mother and the society signed two separate voluntary service agreements, one regarding the child K-Land another regarding N.G.’s biological children, ENG and EVG.

In the voluntary service agreements, the parties agreed that eachdocument was to address the risk of harm to the children because of the sexual assault allegations involving K-L against N.G. None ofthe children’s biological parents signed the voluntary service agreement. The parties agreed that K-L would reside with her maternaluncle and his spouse. N.G.’s biological children, ENG and EVG were to reside with the maternal grandparents and the mother. 2.2 – Procedural history [40] The society’s application was issued on June 9th, 2021.

In the application, the society sought an order finding all children inneed of protection and placing the children K-L, ENG, and EVG in the care and custody of the maternal grandparents for a period of sixmonths, subject to terms of supervision. The society further sought an order placing the children MJH, and PAR with their biologicalfather, G.R for a period of six months, subject to terms of supervision. [41] On June 11th, 2021, the case management judge, Justice S. O’Connell, made an order on a temporary, without prejudice,basis as follows:

i. The children K-L, ENG, and EVG, were placed in the temporary care and custody of the maternal grandparents. The mother was not to reside in the home. ii. The children MJH and PAR were placed in the temporary care and custody of their father, G.R. iii. Terms of access were made for the mother with respect to all five children. N.G. was not to have access with any child pending further court order. iv. The OCL was appointed. [ 42 ] On October 20 th , 2021, Justice S.

O’Connell made an order granting N.G. temporary access with his biological children, ENG and EVG, twice per month and supervised by the society. [ 43 ] On March 31 st , 2022, a temporary order was made on consent varying the June 11, 2021 order and placing the child, K-L, in the temporary care and custody of her stepfather, G.R., subject to supervision terms.

The mother’s access with K-L was to be supervised by an adult preapproved by the society and was to occur at a minimum of once per month, in person (subject to the child’s views and preferences). [ 44 ] On May 10, 2022, an order was made on a temporary, without prejudice, basis, allowing the mother to return to the grandmother’s home.

The mother was not to be left alone with the children, ENG and EVG, for more than an hour within the home, and if she was to leave the home with the two children, she was to be always supervised by the grandparents. [ 45 ] Therefore, at the time of trial, the children’s residential arrangements were as follows: i. The children, MJH and PAR, are placed with their father, G.R. The child, K-L, is also placed in the home of her stepfather, G.R. ii.

The children, ENG and EVG, are placed with the maternal grandparents. [ 46 ] In his Form 33B.1 Answer and Plan of Care dated September 24, 2021, N.G.(the mother’s husband) asks the court to place his biological children, ENG and EVG, and the child K-L, into the care and custody of the mother, with access to him. [ 47 ] In his Form 33B.1 Answer and Plan of Care dated September 21, 2021, G.R. asks the court to place his biological children, MJH and PAR into his care and custody.

He also seeks to have the child, K-L, placed with him, subject to her views and preferences. [ 48 ] In her Form 33B.1 Answer and Plan of Care dated September 24, 2021, the mother sought an order returning the children K- L, ENG, and EVG to her care. She seeks access terms pertaining to her other children, MJH and PAR. [ 49 ] In her Form 33B.1 Answer, the mother admitted to the following facts as contained in paragraph 6 of the society’s application: Para 9(a ): The mother and her husband, N.G., and their children resided in the grandparents’ home, and they shared a room together with two sets of bunk beds.

The mother and N.G. slept on the bottom of one bunk and K-L slept on the top of that same bunk. The other two children shared the other bunk bed. Para 9(b): The mother woke up on May 15, 2021, and noticed that N.G. was not in their bed. She got out of bed and saw N.G. climbing down from her daughter K-L’s bed. She noticed that K-L’s pants were bunched up in a way that suggested that they had just been put back on. N.G. stated that he was looking for his phone. The mother did not believe him. N.G. left the home in his car. Para 9(c): K-L reported that N.G. had been sexually abusing her for five years.

She reported that there had never been any penetration but that N.G. does try to have sex with her. He had fondled her genitals and breasts. She had not told anyone before May 15, 2021, because she worried that no one would believe her. K-L reported that N.G. sexually abuses her several times per week. The last time was two nights prior. Para 9(d): The other four children were sleeping during the incident.

Para 10 : The mother was initially supportive and protective of her daughter, K-L, and she put protective plans in place which included placing K-L in the home of her sister (child’s maternal aunt), to keep her a safe distance from N.G. and the home where she was assaulted. Para 12: On May 19, 2021, the mother sent several text messages to the child and family well-being worker which reflected that she no longer believed nor supported her daughter’s disclosures related to the sexual abuse by N.G.

Para 13: On May 20, 2021, Toronto Police advised the society worker that the mother had contacted them and expressed her distress about the condition prohibiting her from having any contact with N.G. She also expressed to the police that she did not believe her daughter. Para 14: Around this same time, the mother left the home of her parents without her children and advised the society that she was staying with a friend in the Beaches neighbourhood.

Part Three – The evidence at trial 3.1 – General [ 50 ] When the parties attended a trial management conference on December 19 th , 2022, they advised the trial management judge

that there was no consent with respect to the society’s request to enter the child, K-L’s video-taped police interview regarding sexual abuse as her examination-in-chief. The society proposed to have the video and the transcript entered, subject to cross-examination in accordance with subsection 18.3(6) of the Evidence Act . [ 51 ] At trial, the proceeding commenced with a voir dire on the issue. However, before the court could make a ruling, the parties consented to have the child, K-L’s video statement and transcript entered as her examination-in-chief.

All counsel were given the opportunity to cross-examine K-L. [ 52 ] K-L attended court through video conference. She was in a separate room at the courthouse. Her OCL counsel, Ms. Laborde, sat with her in the room as her support. The parties consented to this arrangement. [ 53 ] K-L was interviewed on May 15 th , 2021 by Detective Constable Danny Mavrou (‘Officer Mavrou’). Officer Mavrou is employed by Toronto Police Service and is assigned to the sex crimes unit which is connected to the Child and Youth Advocacy Centre (CYAC).

Officer Mavrou testified that the recording of forensic interviews at CYAC preserves the child’s statement and reduces the number of times a child needs to tell their story. [ 54 ] As per the video recording of May 15, 2021, K-L provided the following evidence regarding the events of May 15, 2021: [ 55 ] K-L went to bed around 12:50 a.m. She was wearing a tee shirt and sweatpants. The bedroom had two bunk beds. She was sleeping on the top bunk. Her mother and her stepfather, N.G., were sleeping on the bottom bunk bed.

Her other four stepsiblings were sharing the other bunk bed. [ 56 ] She remembered waking up and her stepfather was touching her underneath her clothes. The touching woke her up. She stated that he pulled down her pants to just above her knees. As K-L started explaining the graphic details of the alleged sexual assault, she started stuttering and appeared very uncomfortable. She requested Officer Mavrou if she could write some of the details on her cellphone. She wrote that her stepfather, N.G., was trying to put his penis in her.

She testified that she could tell it was N.G. because of his breathing and his body size. She also testified that N.G. had sexually assaulted her the previous week and when she was younger. Her evidence was that N.G. had been sexually abusing her for “five plus” years. She stated that the abuse started three weeks after her mother brought N.G. into her home. [ 57 ] K-L’s evidence was that there was a time when the abuse stopped when the family moved to Oshawa.

However, N.G. allegedly started abusing her again after the family traveled to Newfoundland. [ 58 ] As the interview continues, K-L tells Officer Mavrou that she felt uncomfortable naming parts of her body that had been touched. Officer Mavrou drew two plain diagrams of a person, one facing forward, and the other facing backward. He asked her to circle on the diagrams the areas she was touched. K-L scribbled on the chest area, genitalia, and hips.

The drawing was entered as an exhibit by the society. [ 59 ] When K-L was asked about the body part that her stepfather had touched her with, she stated that he used his hands, and she wrote down ‘penis’ as the other part of his body that touched her. She stated that he put his finger inside her vagina. [ 60 ] K-L told Officer Mavrou that she had not told her mother because she feared getting in trouble as her mother is married to N.G.

She also stated that her mother would always get angry at her every time she stated that she did not want to be around N.G. [ 61 ] K-L told Officer Mavrou that N.G. came down from her bunk bed after her mother asked him what he was doing on her bed. [ 62 ] The grandmother testified for the society. She is the one who called 911 following the incident. She testified that she heard the mother scream that night and she rushed to the mother’s bedroom. She found K-L in a fetal position and restless, ‘with no feeling’. She observed K-L crying silently, and her mother was beside her.

She remembered K-L refusing to be examined by medical professionals as she did not want anyone to touch her. The grandmother appeared emotional as she recalled the events of May 15, 2021. [ 63 ] As part of their evidence, the society also provided the following evidence from the officers who were involved with the family at the time N.G. was arrested. [ 64 ] Officer Melanie Bedard is a detective constable with Toronto Police Service. She works at the Child Youth Advocacy Centre (CYAC). She has been with CYAC for over four years and has been with Toronto Police Service for almost fourteen years.

Her evidence was that on May 20 th , 2021, the mother called the CYAC wanting to speak to the officer assigned to her case. She described the mother as very upset about N.G.’s arrest. As the mother was on the phone, Officer Bedard took notes of the call. Immediately following the call, Officer Bedard created an email that she sent to Officer Mavrou, the investigating officer. The email contained the following details: i. The mother was upset about the conditions of the accused, N.G., particularly the prohibition regarding contact with her. ii.

The mother believed her daughter, K-L, had made up the allegations, was lying, and required a psychiatric assessment. The mother stated that she would not cooperate with the criminal investigation. iii. The mother wanted nothing with her daughter (K-

L) and would favour testifying for her husband, instead. iv. She does not want to be contacted by the police. [ 65 ] Officer Michelle Kim is a detective constable with Toronto Police Service. She has been with Toronto Police for 15 years. She has been assigned to CYAC for two years now and had been with CYAC for about two months at the time N.G. was arrested. She described her role in the criminal investigation involving N.G. as secondary, that is, to provide support to Officer Mavrou, the investigation officer. As part of that role, she was scheduled to interview the mother on May 17 th , 2021, at 11:00 a.m.

Officer Kim provided the following email exchanges of her interactions with the mother:

i. May 17 th , 2021 at 7:16 pm: The mother wrote stating that she was not able to do a statement, writing, “I can’t….sorry!. ii. May 19, 2021, at 4:19 p.m.: The mother wrote to Officer Kim requesting that the criminal conditions placed on her husband be lifted. She stated that she still wanted him to see his children and that it was ‘unfair’ given that he had not been found guilty. She asked the reason she was not being allowed to see him given that she was neither the complainant nor the victim. iii.

May 28, 2021, at 4:18 p.m.: The mother wrote to Officer Kim asking the reason she was not allowed to see her husband. In the email, she blames her daughter, K-L, for the whole situation. She states that she had been doing her own research and K-L’s story did not add up. iv. May 31, 2021, at 10:08 p.m.: The mother wrote to Officer Kim stating that K-L created her own story, and her husband is not the man the officers were portraying him to be.

The mother states that if she were to be called to testify, she would not be a good witness. [ 66 ] Officer Kim testified that it was very concerning to the officers that the mother of the complainant would, within a two-day period, change her position saying she no longer believed her daughter.

The officers were concerned that the mother would no longer support the complainant. 3.2 – Specific evidentiary issues 3.2.1 – The mother’s 911 audio recording and transcript [ 67 ] The society sought to admit the mother’s 911 audio recording (and transcript) of May 15 th , 2021, into evidence. [ 68 ] The 911 recording is in two parts. [ 69 ] The first part relates to the grandmother who called 911. There was no objection to the grandmother’s 911 audio recording and transcript being admitted into evidence. The grandmother reported that her granddaughter had been sexually assaulted by her stepfather.

She was on the call briefly and the mother spoke in the background, stating that the stepfather, NG, was on probation. [ 70 ] The second part of the 911 audio recording relates to the mother when came on the 911 call. N.G.’s counsel objected to this evidence being admitted. [ 71 ] In the 911 call, the mother provided the following details to the 911 operator: i. She confirmed she was at the grandmother’s address at the time of the call. She provided her full legal name. ii. She provided her daughter K-L’s full name, date of birth, and age. iii.

She stated that she woke up in her sleep and she noticed that her husband’s foot was hanging over her daughter K-L’s bunk bed. She asked him what he was doing on the child’s bed, and he responded by saying that he was looking for his phone. She then told him, “But your phone is not up there?” iv. The mother instantly woke her daughter, K-L, and noticed her pants were half down. v. K-L was awake and crying and reported to her that N.G. had been touching her. vi. She provided the full name and date of birth of her husband, N.G., including his physical appearance.

She reported that he had left the home and provided a description of the vehicle he was driving. vii. She told the operator that her daughter had just disclosed to her that the sexual assault had been going on for quite a few years. viii. She threatened to kill her husband. ix. When asked whether K-L had disclosed where she had been touched, the mother responded, “Um, down, down there….I feel like I’m gonna throw up” [ 72 ] The society sought to admit the 911 recording and transcript pursuant to the res gestae exception to the hearsay rule. Ms. Hayes, counsel for the society, relied on R. v.

Mortley 2017 ONSC 3858 . In the Mortley case, the complainant on a criminal matter involving domestic violence had become uncooperative and, despite being subpoenaed, there was a concern that she would not attend court or might deny elements of prior statements. The court concluded that the 911 recording fell within the res gestae exception to the hearsay rule as the stress and pressure of the moment were manifest in the recording.

The court also concluded that the 911 recording was admissible under the principled exception to the hearsay rule as both necessity and threshold reliability had been met. [ 73 ] The Ontario Court of Appeal in R. v. Nurse , 2019 ONCA 260 (para 80 ), citing Ratten v. The Queen, [1972] A.C. 378 (P.C.) , wrote that: . . . a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule.

The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.

[74] The mother, in her 911 call, was upset by the events that had just transpired. The statements she made were spontaneous. Theevents had happened twenty minutes before the call. She had just discovered her husband on her daughter’s bed. Her daughter was in afetal position and crying. Her daughter had just disclosed that she had been sexually assaulted by her husband. During the 911 call, themother did not even want to refer to him as her husband and stated that she felt like she wanted to vomit. [75] The court is satisfied that there is no danger of fabrication to the mother’s statements to the 911 operator.

The statements weremade under the stress and pressure of what had just transpired. The court is satisfied that the mother’s statement falls within the resgestae exception to the hearsay rule. [76] For the reasons above, the court will admit the 911 audio recording and transcript of the recording into evidence. 3.2.2 – N.G.’s video recording and transcript of police interview [77] On May 16th, 2021, N.G. provided a statement to police regarding the sexual assault charges involving the child, K-L. He wasinterviewed by Detective Constable Mavrou. The interview was video recorded.

The society sought to admit the video recording and thetranscript into evidence. N.G.’s counsel, Mr. Blayways, objected to the admission of the recording and transcript into evidence. Therewas no objection that N.G. made the statement. [78] The video recording was played in court. [79] In the interview, N.G. admitted being on the top bunker (K-L’s bed) on the night of May 15, 2021. He stated that he waslooking for his phone.

He blamed the mother for the whole incident, stating that the mother and her ex-partner, G.R. (who has beeninvolved in domestic proceedings with the mother), always tend to use the children ‘to get someone in trouble’. He stated that the motherhad told K-L what to say. [80] The society’s position is that the video statement is an admission. This position was supported by the two OCL lawyers. [81] In R. v. Schneider, 2022 SCC 34, the court stated that: [52] The exception at issue in this case is a party admission.

These include any “acts or words of a party offered asevidence against that party” (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)). Although there has been debate as to whetherparty admissions are hearsay, I agree with the prevailing view set out by Charron J.: “. . . admissions from an accused fall within a well-recognized exception to the hearsay rule” (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; see also Paciocco, Paciocco andStuesser, at p. 192). [53] In criminal trials, a party admission will be evidence that the Crown adduces against an accused.

As explainedin Evans, the common law justifies allowing party admissions into evidence on the basis that a party cannot “complain of theunreliability of his or her own statements” (Evans, at p. 664). Unlike many other exceptions, justification for allowing party admissionsdoes not relate to necessity or reliability (Vauclair and Desjardins, at p. 911). This is one aspect in which party admissions do notconform to general rules. [82] The interview was conducted on May 16th, 2021 at 4:16 a.m. Mr.

Blayways, counsel for N.G., argued that given OfficerMavrou’s concession that N.G. ‘appeared tired’ in the video, it should not be admitted. He argued that when N.G. stated that he did notwish to give a statement, the officers should have stopped questioning him. This position is clearly addressed in cases such as R. v.Mortley 2017 ONSC 3858 (para 67) where the court stated that the right to silence does not extend to the right not to be questioned [83] Mr. Blayways requested the court to consider its gatekeeping role and exclude the evidence. [84] N.G. did not testify. Mr.

Blayways agreed with the court that there was no evidence before the court confirming that N.G. wastired at the time of the interview. [85] Ms. Laborde, OCL counsel, argued that N.G. had an operative mind, and his statement was a voluntary admission. In R. v.Mortley (supra at para 64), the court stated that the “operating mind” standard is a very low one. In R. v.

Whittle (SCC),[1994] 2 SCR 914, the court stated that the operating mind test requires that the accused possess a limited degree of cognitive ability tounderstand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. [86] The court looked at the circumstances pertaining to the making of the statement by N.G., which are as follows: i. He was advised that he was being recorded at the beginning of the interview. ii. Officer Mavrou advised him of his right to retain and instruct counsel.

Officer Mavrou further reminded him that he(Officer Mavrou) did not want to influence him in making a statement. iii. He was advised that he had the right to telephone any lawyer if he wished. iv. He was advised that he had the right to free advice from a lawyer through Legal Aid Ontario. He was provided with atelephone number for Legal Aid that would connect him with duty counsel. He was asked if he wanted to call a lawyer and he declined. v. Officer Mavrou read him a caution to a charged person.

N.G. was reminded of the charges he was facing and wastold that he was not obliged to say anything unless he wished to and that anything he said might be used in evidence. N.G. understood. vi. A secondary caution was read to N.G. He was advised that if he had spoken to any other police officer or if anyoneelse in a position of authority had spoken to him in connection with the matter, Officer Mavrou did not wish to influence him (N.G.), inmaking a statement.

vii. N.G. was asked if he wanted to speak to a lawyer after the second caution was read to him. N.G. declined to speak toa lawyer. viii. The statement was recorded on good-quality video and audio. [87] There is no evidence that N.G. was coerced to make a statement. There is no evidence of any threats being employed by theofficers to obtain a statement. N.G. remained calm throughout the interview and answered all questions voluntarily. [88] Further, the issue of whether he was tired or not would go towards weight, as opposed to admissibility of the evidence.

It isnot being disputed that the statement was made. [89] N.G. was not a stranger to criminal proceedings. He was previously involved in a different criminal proceeding whichconcluded by way of a guilty plea on April 7, 2021 (a month prior to the video statement). He had legal counsel in the previous case. [90] The court finds on a balance of probabilities that the N.G.’s statement to the police was voluntary, relevant, and not subject toany rule of exclusion. [91] The video statement is the only evidence before this court coming from N.G. He did not present evidence at this trial and didnot attend court.

The video statement provides an admission by N.G. of some of the details of the night of May 15, 2021, particularly thathe was on K-L’s bunk bed while naked.

As an admission, it falls within exceptions to the hearsay rule. [92] The Act is remedial legislation and should be interpreted broadly with a view to achieving the purpose of this Act. [3] [93] The court will admit the recording of N.G.’s statement to the police and the transcript into evidence. 3.2.3 – Transcript of N.G.’s guilty plea [94] On April 7th, 2021, N.G. appeared before Justice Finnestad and pled guilty to common assault involving a child victim whowas 8 years old at the time of the incident. The child was born in October 2009 and the incident happened in September 2018.

N.G. wasrepresented by counsel at the criminal proceeding. [95] Mr. Blayways, counsel for N.G. in this child protection proceeding initially objected to the admission of the evidence.However, before the conclusion of a blended voir dire on the issue, he conceded to have the evidence admitted. [96] In his guilty plea, N.G. admitted to the following facts: The complainant’s mother was friends with T.L.G. (the mother in this child protection matter). Between September 1st, 2018, and September 30th, 2018, the complainant and her mother went to visit N.G. and his wife at their residence.

N.G. and his child and thecomplainant left in N.G.s car to get some food and to run some errands. N.G. was driving. His child was in the rear car seat and thecomplainant was sitting in the front passenger seat. During the drive, N.G. reached over the complainant to get something in thepassenger side door. As he pulled his arm away, his right hand brushed across the complainant’s legs slowly for approximately fiveseconds. Later, N.G. rubbed the complainant’s right thigh with his right hand for approximately ten seconds. N.G. stopped when the complainant told him that her leg was itchy.

On April the 13th, 2019, N.G. turned himself in to the police. [97] N.G. was granted a conditional discharge and was placed on probation for 12 months. [98]

Section 93 of the Act provides as follows: Past conduct toward children 93

(1) Despite anything in the Evidence Act, in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for orhave access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [99] A criminal conviction is prima facie proof of underlying facts, but can be rebutted, with evidence not available at the criminaltrial. See: H.W. and H.D. v. A.H.C. (Ont. C.A.); Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191. [100] In CCAS of Toronto v.

C.N.G., [2016] ONCJ 6, a criminal conviction was admitted as prima facie proof of the underlying facts,including the mother’s guilty plea (a formal admission) and the transcript of the sentencing. But references in the sentencing to reports ofthe mother’s mental health were not relied on, as the full reports were not tendered, there was insufficient evidence to assess reliabilityand the prejudicial effect outweighed the probative value. [101] In M.A.L. v. R.H.M., 2018 ONSC 1597, the court stated that:

97. The fact that a person pleads guilty to a criminal offence is prima facie proof that he or she committed the offence. Zhao v.Yang 2015 ONCJ 408 (OCJ). It is always open for them to adduce specific evidence at their family court trial to try to explain why thecriminal conviction doesn’t tell the whole of the story. But in that event they should present specific evidence about all of the relevantconsiderations which went into the decision to plead guilty despite innocence. This could include: a. Particulars of any prejudice they would face while awaiting a criminal trial. b.

The strength or weakness of the Crown’s case. c. The nature and strength of any defence evidence. d. The likelihood of conviction (bearing in mind that the standard of proof is higher in criminal matters). e. The availability of legal counsel. f. Whether there was any inter-relationship or concurrence between the charge to which a guilty plea was entered, and the dispositionof other charges. g. Any other relevant or pressing personal considerations. [102] N.G.’s guilty plea is relevant to this proceeding. It is evidence of past conduct as contemplated by

section 93 of the Act. Theevidence is presumptively admissible. N.G. did not call evidence to rebut that presumption. [103] N.G.’s guilty plea is also an admission by him. The statement is only admissible for the truth of its contents against the partymaking the statement. See: R. v. Schmidt, (SCC), [1945] S.C.R. 438; Harris v. Harris, (ON SC), [1931]4 D.L.R. 933. The statement in its entirety becomes admissible, not just the damaging parts. See: Capital Trust Co. v. Fowler (1921) (ON CA), 64 D.L.R. 289 (Ont. CA). Part Three – Risk of sexual harm 3.1 – Legal considerations [104] Clauses 74(2)(

c) and 74(2)(c) (

d) of the Act provide as follows: 74(2) A child is in need of protection where, (

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

d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c); [105] The conduct in question must be engaged in by the caregiver or, if the conduct is by another, the caregiver must have failed toprotect, having known or ought to have known of the possibility. [106] The term sexual abuse under clauses 74 (2) (

c) and (

d) of the CYFSA has the same meaning as sexual molestation andexploitation under 37 (2) (

c) and (

d) of the Child and Family Services Act. See: Windsor-Essex CAS v. Ju.C., 2018 ONCJ 436; Children’sAid Society of Toronto v. R.M., 2018 ONCJ 690. [107] In the case of Windsor-Essex Children’s Aid Society v. J.C., [2018] O.J. No 3592, the court found a two-year-old male child tobe in need of protection under the risk of sexual abuse or exploitation section, where the father admitted to sexually abusing a 9-year-oldgirl he was babysitting more than ten years prior.

In that case a forensic psychiatrist said the father was a low risk to re-offend and asocial worker found the mother to “have a strong sense of what it means to be protective”. [108] In cases where disclosures of sexual assault have been made by a child, the court must not only bear in mind the risk ofpotential harm of parenting time to the siblings of the victim, but also the unseen harm that the order would cause to the victim: See:J.R. v. W.M., 2021 ONSC 1698 (S.C.J.); Simcoe Muskoka Child, Youth and Family Services v.

J.M.W., 2023 ONSC 741. 3.2 – Analysis [109] The society bears the onus to prove the risk of harm on a balance of probabilities. [110] The court finds that the society’s main witness, the child K-L, was both credible and reliable. [111] K-L adopted her video statement as true and accurate. K-L was candid in her testimony.

She provided significant detail andexplained how N.G.’s behaviour was wrong. [112] She answered all questions posed by Officer Mavrou in the police interview and posed by counsel during cross-examination. [113] Her further oral testimony in this proceeding was consistent with what she stated during her police interview. [114] K-L’s evidence focused on two main issues that are relevant to this proceeding, that is, (1) the alleged sexual abuse against herby her stepfather, N.G., and (2) her mother’s failure to protect her. [115] K-L described the sexual assault in detail.

The court was able to observe her demeanour both during the police interview and

when she attended court. Describing the events was obviously very difficult for the child. She appeared very uncomfortable when describing the sensitive details. Officer Mavrou had to provide her with some assistance by asking her to illustrate on a drawing to show the areas where she had been sexually touched by N.G. On several occasions, K-L told Officer Mavrou how she felt uncomfortable describing the events. However, she was able to provide a full account of what transpired. [ 116 ] During cross-examination by N.G.’s counsel, K-L appeared to feel betrayed by her mother.

She testified that even though she did not disclose the sexual assault to her mother for fear that her mother would get angry at her, and that the adults would not believe her if she told the truth, she stated that her mother ought to have noticed that something was wrong with her, and should have asked, but chose not to.

K-L stated that at the time of the abuse, she was young and thought the sexual abuse was normal. [ 117 ] K-L told the court that she did not feel supported by her mother and does not really want to see her. [ 118 ] K-L’s testimony was further corroborated by her mother’s statements in the 911 call.

Even in her own Form 33B.1 Answer filed in this proceeding, the mother admits a number of details which are consistent with K-L’s testimony, including the sleeping arrangements on the night of May 15, 2021, the fact that N.G. was on K-L’s bed, the positioning of K-L’s pants, including the fact that she did not believe N.G’s explanation for the reason he was on the child’s bed. [ 119 ] In his police interview, N.G. admits that he was naked, and he was on the child’s bed in the dark of the night. He told Officer Mavrou that “I was naked because I sleep naked.

I never wear boxers on or anything”. [ 120 ] K-L’s evidence was not discredited during cross-examination. [ 121 ] The court agrees with Ms. Hayes, counsel for the society, that given the mother and her husband, N.G.’s failure to present evidence at this trial, K-L is the only one among the three individuals who had the courage to come to court and provide evidence. Ms. Hayes told the court that one of the most heartbreaking particulars of this matter is the mother’s abandonment of her daughter’s interests. [ 122 ] Mr.

Blayways, counsel for N.G., argued that the society had failed to prove the risk of sexual harm regarding the other four children. This specific issue was addressed in Children’s Aid Society of Toronto v. R.M . 2019 ONSC 2251 . In that case, a mother agreed to act as her adult brother’s surety after the brother had been charged with 16 criminal charges involving luring three teenage girls, sexual exploitation, child pornography and possession of child pornography. The brother was to reside with the mother and her minor child.

When the mother argued that there was no risk as her brother had never abused or sexually exploited pre-pubescent children, the court concluded that: 67. … This is a narrow focus that ignores the broad scope of the evidence that created the risk. …the risk arose from (his) conduct; that he was secretive, showed extremely poor judgment, abused his position of trust and authority (as a teacher), lured and groomed his victims for his own sexual gratification, together with the mother’s failure to assess the and appreciate the risk that (her brother)’s conduct created. [ 123 ] In the domestic proceeding involving the mother and G.R. ( T.E.H. v.

G.J.R . , 2016 ONCJ 156 ), Justice S. O’Connell wrote the following (para 419): The mother testified at length that K-L.’s biological father was extremely violent and that he had sexually and physically assaulted her throughout their relationship. She further testified that he had a criminal record involving sexual offences against minors, and that there was an order prohibiting any access to K.-L.

Her testimony that she was now arranging for K-L. to meet her biological father after having no contact with him since birth, was frankly alarming to the court, unless her evidence about the biological father was false. [ 124 ] It is shocking that the mother traveled with K.L. to Newfoundland in July 2020 and introduced her to her biological father, J.A.N. The prohibition against J.A.N. pertaining to children under the age of 16 was still in place. As per her text message from May 19, 2021, the mother was aware that J.A.N. was on the sex offender registry.

Further, at the time of the trip, her husband, N.G. was facing serious criminal charges involving inappropriate conduct towards an 8-year-old child (the complainant was the mother’s friend’s daughter).

K-L testified that during that trip, she was sexually assaulted by N.G. in a cabin that the family was renting in Newfoundland. [ 125 ] Not only did the mother disregard the risk that she was placing K-L in when she took her to visit J.A.N, she also disregarded Justice O’Connell’s serious concerns as per the court decision above . [ 126 ] The mother has exhibited poor judgment when it comes to protecting her own children. To make matters worse, she was sleeping with a naked man, who “slept bald”, in the same room with her 5 children.

This is very concerning. [ 127 ] There is overwhelming evidence in support of the society’s allegation that the mother is not being protective towards her children. [ 128 ] The mother chose not to attend this trial. She did not file any materials. Her husband, N.G., chose not to attend this trial.

He did not file any materials. [ 129 ] The court can draw an adverse inference on a party for failing to call relevant evidence. [ 130 ] Authors Sopinka, Lederman and Bryant, The Law of Evidence in Canada (3 rd ed., LexisNexis Canada Inc., 2009), at p. 377, write that: In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.

In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[131] In Sabanegh v. Habaybeh, 2010 ONSC 6572, the court drew an adverse inference due to the failure of a party to call his father,an important witness at trial [132] In L.W.-A. v. J.C., 2017 ONCJ 741, the court drew an adverse inference against a father who provided no reason why a paternalgrandfather did not attend at court to testify. The paternal grandmother had breached an order to supervise the father’s access. She filedan affidavit but did not attend court. [133] In Children’s Aid Society of Oxford County v. Marilyn G and Gerald G, , the court stated: 19. A critical aspect in this case was Mr.

Gerald G’s failure to testify. Protection proceedings are not in the nature of criminalproceedings, where the accused is not obliged to testify. In protection proceedings, the court must be satisfied on the balance ofprobabilities that the child is in need of protection. Mr. Gerald G’s failure to testify deprived the court of any opportunity to assess Mr.Gerald G’s intentions with respect to treatment and the extent of his appreciation of the nature of the Society’s concern for the safety ofthe child.

The court that heard no assurance that the child would not be molested by him. [134] The mother did not even provide instructions to her counsel with respect to her position at trial. Ms.

Chamberlain, OCL counsel,identified several questions that remain unanswered due to the mother’s absence from the trial. [135] The court will draw an adverse inference against the mother for her failure to present evidence at trial, and her failure to instructher counsel for the trial. [136] The court will draw an adverse inference against N.G. for his failure to present evidence at trial. [137] The paramount purpose of the Act is to promote the best interests, protection, and well-being of children. [138] The court finds that the society has established, on a balance of probabilities, that that the child K-L was sexually abused byN.G. as contemplated by subsection 74(2) of the Act.

N.G. and the mother had charge of the child K-L on May 15, 2021. The mother hasfailed to protect the child. [139] The court finds that the society has established on a balance of probabilities that there is a risk that all five children are likely tobe sexually abused. Part Four – risk of emotional harm 4.1 – Legal considerations [140] Clause 74(2)(

h) of the Act provides as follows: 74(2) A child is in need of protection where, (

h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (

v) resultingfrom the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; [141] The harm described in clause 74(2)(

f) is as follows: (

i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (

v) delayed development, [142] Clause 74 (2) (

h) is a ground that involves risk of emotional harm to the child. Therefore it looks to the future. The type(

s) ofharm, the degree of the harm, and the causal connection of the harm to the mother’s or stepfather’s conduct, pre-requisites for a findingunder (

h) grounds, are all necessary for the society to prove to the court with respect to this ground. Although no actual emotional harmsymptoms are needed to be shown, the society cannot rely only on the existence of reasonable grounds to believe that a risk exists. Thisground requires the society to show that the risk does exist, and to do it on the balance of probabilities. “Risk” has been said to mean“more likely than not”. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, paragraph 16. [143] In Children’s Aid Society of Algoma v.

A.B., 2018 ONCJ 831, Justice Kukurin laid out the legal test as follows: [13] Firstly, the society must show that there is a risk is that the child will suffer at least one of the emotional harms specified in thesubsection. The harms are anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development. [14] Secondly, not any degree of these possible future harms is sufficient.

The society must establish that the degree of the harm is onethat is serious, as opposed to minimal, mild or moderate. [15] Thirdly, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or, in the words of thesubsection, is “resulting from” the parents, who are admittedly the persons who had charge, and specifically by the actions, failure to act,or pattern of neglect of these parents. [18] Finally, the society must prove that the risk of at least one of these harms, in the required “serious” degree, would result from acts or

omissions or a pattern of neglect by the parents…. 4.2 – Analysis [ 144 ] K-L has made very serious allegations of sexual abuse against N.G. The mother’s failure to support her daughter and the position she is now taking to accuse her daughter of lying puts K-L at risk of emotional harm. In her Form 33B.1 Answer and Plan of Care, the mother clearly admits that she was initially supportive and protective of her daughter, K-L, but she no longer believed or supported her daughter’s disclosures related to the sexual abuse by N.G. [ 145 ] The mother is now accusing K-L of concocting the criminal charges against N.G.

K-L has lived with her mother her whole life. The mother is the person K-L should be looking up to for protection. On the contrary, the mother is taking the side of her husband, who is being accused of sexually assaulting her own daughter. To K-L, this is disheartening. It is not surprising that K-L’s relationship with her mother has deteriorated, and she does not wish to see her mother. [ 146 ] The mother does not appreciate the risk to her children. [ 147 ] In R. v.

Friesen, (supra), the court wrote that if a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim. (para. 60). [ 148 ] Fabian Di Martino, a child and family wellbeing worker with the Society, testified that he noted, as part of risk assessment, that the mother describes K-L in negative terms in relation to the disclosures she has made about N.G.

He also noted that she does not describe any of her other children in negative terms. [ 149 ] The sexual abuse of K-L fractured this family by breaking the bond that existed between K-L and her mother. After initially agreeing with her daughter, the mother has now gone on a campaign to discredit her own daughter’s narrative of her version of the sexual abuse allegations. K-L is now placed with her stepfather, G.R., in St. Catharines, far from her two younger siblings residing in Toronto with the grandparents. [ 150 ] In R. v.

Friesen , 2020 SCC 9 , the court summarized the harm caused to children by sexual violence as follows: i. Sexual harm can interfere with children’s self-fulfilment and healthy and autonomous development to adulthood (para 58). ii. The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know (para 61). iii. Sexual violence can tear families or render them dysfunctional (para 60). iv.

The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents’ and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty (para 63). v. During childhood, in addition to the inherent wrong of interference with their bodily integrity, children can experience physical and psychological harm that persists throughout their childhood (para 80). vi.

Children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult. [ 151 ] The court finds the society has, on a balance of probabilities, established the risk of emotional harm with respect to K-L. Part Five – Risk of physical harm 5.1 – Legal considerations [ 152 ] Clause 74(2)(

b) of the Act provides as follows: 74(2) A child is in need of protection where, (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; [ 153 ] Clause 74 (2) (

b) involves a risk of physical harm to the child. The risk is that the child is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. There are three separate circumstances which may qualify for a finding on (

b) grounds. The risk may be a likelihood that (

a) the physical harm is inflicted by the person having charge of the child; or

(

b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising orprotecting the child; or (

c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protectingthe child. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, paragraphs 17 and 18 [154] The risk of harm must be real and likely, not speculative. See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.). ). [155] A child may be at risk even if the conduct is not directed specifically towards that child.

See: Catholic Children's Aid Society ofMetropolitan Toronto v. O. (L.M.), (ONCJ); Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251. 5.2 – Analysis [156] N.G. pled guilty to common assault. Section 265(1) of the Criminal Code provides that a person commits an assault when,without the consent of another person, he applies force intentionally to that other person, directly or indirectly.

N.G. admitted that hisright hand had rubbed an 8-year-old complainant’s thigh for approximately ten seconds. [157] This is very concerning behaviour towards children. [158] The guilty plea to an assault involving an 8-year-old child is relevant pursuant to

section 93 of the Act (that is, past conduct of aperson towards any child). [159] The courts have also held that sexual abuse constitutes physical harm. In R. v. Friesen, (supra, para. 82), the court stated thatany manner of physical sexual contact between an adult and a child is inherently violent. [160] K-L testified that N.G. had inserted his finger into her vagina. In Children’s Aid Society of the City of St. Thomas and theCounty of Elgin v. J.M. and T.F ., Justice M. O’Dea concluded in that case that the manner in which the sexualmolestation that occurred also constituted physical abuse as defined and contemplated by the provisions of sections 37(2)(

a) and 37(2)(b)of the old Child and Family Services Act. [161] The court finds that N.G.’s sexual abuse towards K-L constitutes physical harm to the child K-L. [162] These facts would have also justified a protection finding under clause 74 (2) (

a) of the Act, that is, actual physical harm.However, since the society has not sought that finding, and protection findings are already being made under several clauses, the courtwill not make that order. Part Five – Inability to exercise the rights of custody over a child and failure to make adequate provision for the child’s care andcustody 5.1 – Legal Considerations [163] Clause 74(2)(

k) of the Act provides as follows: 74(2) A child is in need of protection where, (

k) the child’s parent has died or is unavailable to exercise the rights of custody over the child and has not made adequate provision forthe child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume thechild’s care and custody. 5.2 – Analysis [164] Nichola Burgess-Carvalho is a children’s services worker with the society.

He testified that shortly after the mother signed a voluntary service agreement on May 20th, 2021 placing the children ENG and EVG in her joint care with the grandparents, the motheradvised that she would be leaving the home and going to stay with a friend. The grandmother asked her the reason she would leave herchildren. The mother did not provide reasons and left the home shortly after making the statement. [165] All parties in this proceeding agree to a finding under clause 74(2)(

k) of the Act. [166] The mother abandoned her two children at the grandparents’ home immediately after she signed a voluntary service agreementwhich allowed her to reside in the home with the grandparents. N.G. is unavailable to exercise rights of custody over the two children,ENG and EVG, due to his criminal charges and the related criminal release conditions. [167] The court is satisfied that the requirements under clause 74(2)(

k) of the Act are met. Part Five – Orders [168] A final order shall go as follows:

[ 169 ] Pursuant to subsection 90(2) of the Act, statutory findings are made as set out at the top of page 3 of the society’s protection application issued on June 9, 2021 (located at tab 1 of the trial record). [ 170 ] The child K-L is in need of protection pursuant to clauses 74(2)(b)(

i) and (ii), 74(2)(c), 74(2)(d), 74(2)(h), and 74(2)(

k) of the Act. [ 171 ] The children ENG, EVG, PAR, and MJH are in need of protection pursuant to clauses 74(2)(

d) and74(2) (

k) of the Act. [ 172 ] This matter is scheduled to return on May 11 th , 2023 (by video conference), at 10:00 a.m. for a case conference (for 45 minutes) before the case management judge to address the issues of planning and disposition. [ 173 ] The court thanks all counsel for their professional presentation and detailed materials filed for this trial. Released: March 9, 2023 Signed: Justice Wiriranai Kapurura