F.A.A. v. T.A. Date:, 2013 BCPC 37

Citation: F.A.A. v. T.A. Date: 20130131 2013 BCPC 0037 File No: F28050 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT, R.S.B.C. 1996 c.128 BETWEEN: F. A. A. APPLICANT AND: T. A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. N. HAMILTON Counsel for Applicant : J. Hittrich Counsel for Respondent : P. Khaira Place of Hearing: Surrey , B.C.

Dates of Hearing: May 8, 9, June 18, 19, 20, 21, Sept 12, 13, 14, Oct 3, 4, 10, 12, 2012 Written Submissions Received: Respondent – Oct 26, 2012 Applicant – Nov 9, 2012 Respondent’s Reply – Nov 16, 2012 Date of Judgment: January 31, 2013 INTRODUCTION [ 1 ] Z.A. is six and a half years old. She has not seen her father, T.A., for three and a half years. Z.A.’s mother, F.A.A., believes that Mr. T.A. sexually assaulted Z.A. and has refused to permit Mr. T.A. any access with Z.A. since April, 2009. [ 2 ] In this access hearing, Mr.

T.A. seeks an order for access with Z.A., starting with supervised access and moving to unsupervised alternate weekend access and sharing Z.A.’s holidays. Ms. F.A.A. seeks a finding that Mr. T.A. sexually assaulted Z.A. and based upon that finding she argues that Mr. T.A. should have no further contact with Z.A. [ 3 ] This is a very difficult case for a number of reasons. The single biggest problem is the nature of the evidence around Z.A.’s disclosures.

Z.A. allegedly disclosed to her maternal aunt and maternal grandmother that her father (or someone she referred to as her “Aba”) and paternal grandfather touched her vagina and that she was in pain. Z.A. was only three years old when she made these alleged disclosures. [ 4 ] Coupled with the alleged disclosures is medical evidence which, if accepted, establishes that Z.A. has a torn hymen. Obviously a torn hymen in a three year old girl raises serious concerns that the child has been sexually abused.

As I discuss below, even if I conclude that Z.A. has a torn hymen, there are evidentiary issues relating to the identity of the person responsible. [ 5 ] For the reasons that follow, I am unable to conclude, on a balance of probabilities, that Mr. T.A. sexually assaulted Z.A. At the end of these reasons I set out a detailed access order with a view to reintroducing Mr. T.A. into Z.A.’s life. KEY INDIVIDUALS [ 6 ] Before reviewing the evidence in this hearing, I will identify the key individuals in Z.A.’s life and those who testified in this hearing. [ 7 ] Mr. T.A. and Ms. F.A.

A. are Z.A.’s parents. [ 8 ] N.A. is Mr. T.A.’s younger sister and Z.A.’s paternal aunt. [ 9 ] Y.A. is Mr. T.A.’s mother and Z.A.’s paternal grandmother. [ 10 ] I do not know Mr. T.A.’s father’s name; however, he is referred to in the evidence as Z.A.’s “Dada”. [ 11 ] N.N.A. is Ms. F.A.A.’s mother and Z.A.’s maternal grandmother. Z.A. calls N.N.A. her “Nani”. [ 12 ] F.A. is Ms. F.A.A.’s sister and Z.A.’s maternal aunt. [ 13 ] S.A. went through a religious marriage ceremony with Ms. F.A.A. in February, 2007. He lived with Ms.

F.A.A. until August, 2008, when he returned to Fiji due to immigration difficulties he was experiencing in Canada. S.A. returned to Canada in August, 2009. He and Ms. F.A.A. separated in late August or early September, 2010. [ 14 ] Dr. Parikh is a medical doctor and has been a general practitioner for twenty two years. He is Z.A.’s family doctor. [ 15 ] Dr. Fujiwara is a medical doctor who works at the HEAL clinic in Surrey. I qualified Dr. Fujiwara as an expert in the medical examination of children and youth to determine if they have been sexually abused. Dr.

Fujiwara examined Z.A. and concluded she has a torn hymen. [ 16 ] Dr. Korpach is a Registered Psychologist with a lengthy history of treating children who have been both physically and sexually abused. Dr. Korpach interviewed Z.A. for the purpose of developing a treatment plan for Z.A. [ 17 ] Dr. Ley is a Registered Psychologist with a lengthy history of treating offenders who have committed sexually based crimes. He has completed thousands of assessments of individuals who are alleged to have committed, or have been convicted of, sexually based crimes.

He has provided risk assessments of offenders for the National Parole Board. He provided an assessment of Mr. T.A. and critiqued Dr. Korpach’s report. [ 18 ] Constable Willcock is a constable with the R.C.M.P. in Surrey. She led the investigation into the allegation that Mr. T.A. had sexually assaulted Z.A. As part of her investigation she conducted audio/video recorded interviews of Z.A. and Ms. F.A.A. [ 19 ] Sonjeeb Kajla is a child protection social worker with the Ministry of Children and Family Development. Ms. Kajla led the Ministry’s investigation into whether Z.A. was in need of protection.

During the course of her investigation she interviewed many of Z.A.’s immediate family, including Z.A.

BACKGROUND [ 20 ] Mr. T.A. is 35 years old. He is employed as a Fire Protection Technician and has been employed in that line of work for thirteen years. He lives in Delta in the basement of a home he owns with his parents. His parents live upstairs in the same home. As mentioned earlier, Mr. T.A.’s younger sister is N.A. [ 21 ] Ms. F.A.A. is 35 years old. She was born in Fiji. She has two older sisters. She lives alone with Z.A. She is a very protective mother and is devoutly religious. She is Muslim. She works in a real estate office as an administrative assistant. [ 22 ] Mr. T.A. and Ms.

F.A.A. married in 1998 in an arranged marriage, and they separated in May, 2006. Z.A. was born on February 23, 2006. She was about three months old when her parents separated. [ 23 ] During the course of their marriage, Ms. F.A.A. was disappointed and frustrated that Mr. T.A. did not spend enough time at home with her. She also disapproved of Mr. T.A. smoking and drinking alcohol. She felt he was not a good Muslim. [ 24 ] Ms. F.A.A. testified about a number of incidents when Mr. T.A. physically abused her. Mr. T.A. did not deny two of those incidents. In the first incident Mr. T.A. pushed Ms.

F.A.A. and she sustained injuries. Mr. T.A. took Ms. F.A.A. to the hospital and she lied to the hospital staff about how she sustained the injuries. The second incident immediately preceded the separation although Mr. T.A. and Ms. F.A.A. gave differing accounts of what occurred. [ 25 ] Ms. F.A.A. eventually learned that Mr. T.A. smoked marijuana. She took great exception to this. Their separation occurred on May 17, 2006, when Ms. F.A.A. discovered a bag of marijuana in Mr. T.A.’s truck. She confronted Mr. T.A. about the drugs and a verbal altercation ensued. Ms. F.A.A. testified that Mr.

T.A. became very angry and assaulted her. She testified that Mr. T.A. said, “Is it my fault my friends are fucking crack heads?” [ 26 ] During the course of this altercation, Ms. F.A.A. testified that Mr. T.A. was slapping and hitting her. She said that at one point Mr. T.A. had Z.A. in his arms and he pushed Ms. F.A.A. to the ground. Ms. F.A.A. then testified that Mr. T.A. kicked her in her vagina like he was kicking a football. She said she started bleeding. She said she was still recovering from, or had just recovered from, giving birth to Z.A. Ms.

F.A.A. testified that at one point during this altercation, Mr. T.A. was choking her and calling her vulgar names. She feared for her safety. Ms. F.A.A. also testified that she did not seek medical attention for her injuries sustained in this assault. [ 27 ] Mr. T.A. gave a different account of this altercation on May 17, 2006. He confirmed that there was an angry exchange between him and Ms. F.A.A. and that at one point he had Z.A. in his arms and he pushed Ms. F.A.A. away from him. He denied kicking Ms. F.A.A. like a football. [ 28 ] Both testified that Mr. T.A. then left the home. Ms.

F.A.A. said she called the police and told them she was planning on leaving Mr. T.A. and was taking Z.A. with her. She testified that the police told her to let Mr. T.A. know she was leaving with Z.A. and that she should call Mr. T.A. a few days after she left. Ms. F.A.A. did not tell the police that she had just been the victim of a vicious assault by Mr. T.A. [ 29 ] Ms. F.A.A. left with Z.A. that day and moved in to live with her sister where she remained for three months. [ 30 ] Following their separation in May, 2006, Mr. T.A. and Ms. F.A.A. made their own arrangements for Mr. T.A. to see Z.A.

Initially, those visits were on Saturdays or Sundays during the daytime only. Mr. T.A. did not have any overnight visits with Z.A. [ 31 ] In July, 2006, Mr. T.A. met S.G. and they began dating. Ms. S.G. introduced Mr. T.A. to drugs other than marijuana, including cocaine. Mr. T.A. used cocaine while he was dating Ms. S.G. On October 21, 2006, Mr. T.A., on his birthday, decided to quit using cocaine and testified that he has not used cocaine since that date. Mr. T.A. has provided hair samples for drug testing at times during this litigation.

The only positive test result for drugs has been positive results for the presence of marijuana. Mr. T.A. does not deny using marijuana, although he said he quit smoking marijuana two months prior to the start of this hearing. MR. T.A.’S ACCESS WITH Z.A. [ 32 ] As I indicated, following the parties’ separation, Mr. T.A.’s access with Z.A. was initially on Saturdays or Sundays on alternate weekends from 10:00 am to 4:00 pm. By January, 2007, Mr. T.A. was exercising access with Z.A. on alternate weekends for both Saturday and Sunday from 10:00 am until 4:00 pm each day. [ 33 ] Both parties testified that Mr.

T.A.’s visits with Z.A. occurred in the presence of Mr. T.A.’s family members, in particular his mother and his sister. While the presence of family members was not required for the visits to occur, it was clearly understood that Mr. T.A.’s mother or sister would be involved in the visits with Z.A. because Ms. F.A.A. had concerns about Mr. T.A.’s ability to change diapers and tend to the needs of an infant child. As well, Ms. F.A.A. preferred that a female person change Z.A.’s diapers, give her baths, and tend to her toileting. By January, 2007, Z.A. was not quite one year old and on the evidence before me, Mr.

T.A. did not object to the involvement of his mother and sister in his access visits with Z.A. [ 34 ] In August, 2008, Ms. F.A.A. began to communicate with Ms. S.G. Through that communication Ms. F.A.A. learned of Mr. T.A.’s cocaine use. Ms. F.A.A. obtained an affidavit from Ms. S.G. to support the allegation that Mr. T.A. was using cocaine. On the evidence before me, I find that Mr. T.A. had stopped using cocaine in October, 2006, nearly two years before the August, 2008, allegation. [ 35 ] Mr. T.A. testified that Ms. S.G.’s allegation was motivated by some personal dispute they had over a pet. Ms.

S.G. did not testify in this hearing because she died prior to the start of this hearing. [ 36 ] In any event, Ms. F.A.A. instructed her counsel to send a letter to Mr. T.A.’s counsel advising that unsupervised access with Z.A. would stop immediately based upon a series of allegations including drug and alcohol addiction, an inability to control his temper,

and inadequate care of Z.A. while she was with Mr. T.A. Ms. F.A.A.’s counsel, through his articling student, advised that if Mr. T.A. wished he could have supervised access with Z.A. for an hour and a half two days each week. The articling student’s letter is dated August 19, 2008 (Exhibit 16). [ 37 ] Mr. T.A.’s counsel responded in a letter dated August 20, 2008; however, Mr. T.A. did not tender that letter into evidence. In response, Ms. F.A.A.’s counsel, through his articling student, responded in a letter dated September 3, 2008, setting out Ms. F.A.A.’s concerns that Mr.

T.A. confronted her the day before on an access visit and started an argument over Mr. T.A.’s frustration over the restrictions on his access with Z.A. Apparently Mr. T.A.’s mother and sister acted inappropriately during that access visit as well. This argument occurred in front of Z.A. [ 38 ] On the basis of these new concerns, Ms. F.A.A. cancelled Mr. T.A.’s access “until further notice” (Exhibit 17). [ 39 ] Three days later Ms. F.A.A.’s counsel wrote to Mr. T.A.’s counsel confirming that access with Z.A. will not occur until such time that Mr.

T.A. agrees to terms of access that were included in a Notice of Motion dated September 6, 2008. Ms. F.A.A. wanted an agreement that Mr. T.A. would, among other things, not consume alcohol or illegal drugs in the 24 hours prior to or during an access visit with Z.A. and that Mr. T.A. would submit to random blood tests or other drug tests at the request of Ms. F.A.A. (Exhibit 25). Ms. F.A.A. further sought an agreement that if Mr. T.A. breached any of the terms of the agreement, a police officer would be authorized to arrest Mr. T.A. [ 40 ] Mr. T.A. did not agree to the access terms sought by Ms.

F.A.A., so the parties scheduled a hearing before the Honourable Judge Hicks on November 4, 2008. Mr. T.A. sought interim orders for joint custody and guardianship along with specified access. Ms. F.A.A. sought interim orders for sole custody and specified access along with the conditions referred to earlier concerning the consumption of alcohol and illegal drugs, and random drug testing. Ms. F.A.A. did not pursue her application for a police officer enforcement clause. [ 41 ] The hearing before Judge Hicks proceeded on affidavits and submissions.

Neither party nor any of the deponents of the affidavits were cross-examined on their affidavits. At the conclusion of the access hearing, the parties entered into an interim access agreement pending the receipt of Judge Hick’s decision. On November 24, 2008, Judge Hicks rendered his decision and ordered that the interim access agreement reached between the parties would continue. Judge Hicks ordered that the parties would share joint guardianship and that Ms. F.A.A. would have interim sole custody of Z.A. As well, Ms. F.A.A.’s home would be Z.A.’s principal residence. Lastly, Judge Hicks ordered that Mr.

T.A. was to pay child support to Ms. F.A.A. in the amount of $510 each month. [ 42 ] Accordingly, following the hearing before Judge Hicks, Mr. T.A. had access with Z.A. on alternate weekends on Saturdays and Sundays from 9:00 am until 4:30 pm and on Wednesdays preceding the non-access weekend from 4:00 pm until 7:00 pm. There were other terms of Judge Hicks’ order including orders prohibiting certain negative conduct on behalf of the parties in the presence of Z.A., an order that the parties utilize a communication journal when Z.A. went on her access visits with Mr.

T.A., and orders for the sharing of other information between the parties. [ 43 ] Judge Hicks did not order that Mr. T.A.’s access with Z.A. be supervised. [ 44 ] Mr. T.A.’s access with Z.A. continued without any significant disruption between November, 2008, until April 26, 2009, when, on the basis of Z.A.’s disclosures, all access between Z.A. and Mr. T.A. ceased. Mr. T.A. has not seen Z.A. since April 26, 2009, despite the fact that Judge Hicks’ order remains in effect. Z.A.’S DISCLOSURES [ 45 ] It is important to recognize that following the hearing before Judge Hicks, Mr.

T.A.’s access was not limited to supervised access. Despite there being no such restriction on his access, Mr. T.A. testified that during nearly all of his visits with Z.A., either his mother or his sister were present. As well, Z.A. never spent the night at Mr. T.A.’s home. Z.A. has a bedroom upstairs at Mr. T.A.’s home, the portion of the house occupied by Mr. T.A.’s parents and his sister. Mr. T.A., his mother or his sister would put Z.A. to sleep for her nap in her bedroom. [ 46 ] According to Ms. F.A.A., starting in early 2007 Z.A. complained of pain in her vaginal area following access visits with Mr. T.A.

Throughout this hearing Z.A.’s vagina was referred to as her “pookie”, a term Z.A. used to refer to her vagina. Ms. F.A.A. testified that 75% of the time Z.A. returned home from visits with Mr. T.A. she had a burning sensation in her vagina. [ 47 ] As well, Z.A. had undiagnosed allergies to eggs and some nuts. Mr. T.A. had cats in his home and Ms. F.A.A. was concerned that Z.A. was exposed to cigarette smoke on her visits with Mr. T.A. Ms. F.A.A. believed that Z.A. was allergic to the cats in Mr. T.A.’s home because she would come home from visits congested and sneezing. In January, 2008, Ms.

F.A.A. took Z.A. to an ear, nose, and throat specialist who recommended that Z.A. avoid being exposed to cats and smoke. Z.A. eventually underwent allergy testing but the results did not confirm that she was allergic to cats. [ 48 ] Regardless of this evidence, there is no evidence before me that an allergic reaction would cause Z.A. to feel pain or burning in her vagina. [ 49 ] At about the same time, early 2007, Ms. F.A.A. underwent a religious ceremony with S.A., following which Ms. F.A.A. and S.A. began living together. S.A. was living with Ms.

F.A.A. between February, 2007, and August, 2008, when he left Vancouver to return to Fiji due to problems with his immigration status in Canada. [ 50 ] Lastly, starting around early 2007, Z.A. started putting her hands down her diaper frequently and indiscriminately. Z.A. would touch her genital area, and Mr. T.A.’s sister testified that Z.A. would insert her finger into her vagina. Ms. F.A.A., Mr. T.A., and Mr. T.A.’s mother and sister all testified that they did not approve of Z.A. putting her hands down her diaper and tried to discourage her from doing so.

[ 51 ] It is important to keep in mind that in early 2007, Z.A. was not quite one year old. So to draw any conclusions about what was happening with Z.A. from information coming from Z.A. at that time is obviously difficult. In fact, I am unsure on what basis Ms. F.A.A. was able to conclude that Z.A. had pain or a burning sensation in her vagina starting in early 2007. I find it difficult to accept that this information came from an eleven month old child. In her testimony at this hearing, Ms. F.A.A. said that she could see that Z.A. had a burning sensation and pain in her vagina. Ms.

F.A.A. gave no further details as to how she knew that Z.A. had this pain in her vagina. For example, Ms. F.A.A. did not testify that Z.A. would cry out in pain when urinating. Ms. F.A.A. testified that Z.A. would not go to the bathroom, but she did not elaborate on that evidence. Mr. T.A., his sister, and his mother did not confirm this evidence of Z.A. complaining of a sore vagina frequently during Mr. T.A.’s access. While I accept that there may have been times when Z.A. was experiencing pain, I am unable to find that she had pain in her vagina following 75% of her visits with Mr. T.A. [ 52 ] Regardless, Ms.

F.A.A. did nothing about Z.A.’s vaginal pain for over a year. In early 2008, Ms. F.A.A. took Z.A. to see Dr. Parikh, her family doctor. Dr. Parikh performed a number of tests all of which came back negative. Dr. Parikh did not note anything that would suggest that Z.A. was being sexually abused during his examination of Z.A., but he was not asked to examine Z.A. to determine if she was being sexually abused. [ 53 ] In early 2009 Ms. F.A.A. took Z.A. to Dr. Parikh who diagnosed Z.A. as suffering from pin worms. Pin worms are generally found in the colon and around the anus of children and they can be itchy. Dr.

Parikh ordered a blood test to see if Z.A. had a bladder infection. On March 28, 2009, Z.A. had her blood test which ruled out a bladder infection. There is no evidence before me that pin worms would cause a child to have an itchy vagina. In fact, Dr. Fujiwara testified that she has never seen pin worms in a child’s vagina. She also testified that it is not uncommon to find children putting their hands down their diapers and touching themselves in their genital area. Mr. T.A. [ 54 ] Mr. T.A.’s last access weekend with Z.A. was on April 25 and 26, 2009. Mr. T.A. testified that he picked up Z.A. from Ms.

F.A.A.’s mother on Saturday April 25, 2009. Mr. T.A. learned at that time that Ms. F.A.A. was out of the country. Ms. F.A.A. had travelled to Fiji where S.A. was living after he had been forced to leave Canada in August, 2008. [ 55 ] Mr. T.A. testified that April 25, 2009, was a beautiful day. He picked up Z.A. and brought her to his home. Mr. T.A.’s father was home and his mother was doing some chores. Mr. T.A. said that his sister, N.A., was with him throughout the day. They took Z.A. to the mall where she ate pizza and then to Bear Creek Park to play. Mr. T.A. and N.A. brought Z.A. home where Mr.

T.A.’s mother had made spicy meatballs. Z.A. ate some food and then Mr. T.A. and his sister took Z.A. back to Ms. F.A.A.’s mother, N.N.A. Mr. T.A. said that there were no difficulties with Z.A. during the day and no issues with Z.A. transitioning between his care and N.N.A.’s care. [ 56 ] On April 26, 2009, Mr. T.A. testified that the weather was poor. He picked up Z.A. and brought her to his home where she ate some breakfast. Mr. T.A. and Z.A. watched television and then Mr. T.A. took Z.A. to visit with Mr. T.A.’s girlfriend, J.W. Ms. J.W. worked at a restaurant and Mr.

T.A. took Z.A. to the restaurant for a milkshake. On the way home from the restaurant, Z.A. was tired and fell asleep. Mr. T.A. put Z.A. to bed for a nap when they arrived home. Mr. T.A. testified that his mother and sister were present at home. [ 57 ] After Z.A. woke up from her nap, Mr. T.A. testified that he fed Z.A. and then he and his sister drove Z.A. back to Ms. F.A.A.’s home. Mr. T.A. testified that he had his sister travel with him when he was transporting Z.A. to and from Ms. F.A.A.’s home to assist with Z.A. as she would often pull off her socks during the drive.

N.A. would help by keeping Z.A. distracted during the drive. Mr. T.A. testified that there was nothing unusual about Z.A.’s behaviour during the visit on April 26, 2009, and he did not testify that Z.A. was upset, crying, or complaining of pain in her vagina when he dropped her off at Ms. F.A.A.’s home at the end of the visit on April 26, 2009. N.A. [ 58 ] Mr. T.A.’s sister, N.A., testified about the last weekend of visits between Z.A. and Mr. T.A. She said that on April 25, 2009, she and Mr. T.A. picked up Z.A. and brought her home for breakfast. After breakfast, she and Mr.

T.A. took Z.A. to the mall and then to Bear Creek Park. She accompanied Mr. T.A. to return Z.A. home after the visit. N.A. testified that throughout the visit Z.A. was her usual playful self. [ 59 ] N.A. testified that she accompanied Mr. T.A. to pick-up Z.A. on April 26, 2009. She said Mr. T.A. took Z.A. to visit Ms. J.W. and then brought Z.A. home. N.A. said she gave Z.A. a bath and testified that Z.A. was fine; she did not complain of any pain in her vagina during the bath nor did she look like she was in pain. [ 60 ] N.A. stated that she accompanied Mr. T.A. when he took Z.A. home at the end of the visit.

N.A. said that she did not accompany Mr. T.A. when he took Z.A. to visit with Ms. J.W. [ 61 ] Ms. F.A.A. called evidence from her mother, N.N.A., and her sister, F.A., as to what happened when Z.A. returned from her visit with Mr. T.A. on April 26, 2009. [ 62 ] I propose to review the evidence of N.N.A. and F.A. in some detail because it is to these two women that Z.A. allegedly made her initial disclosures of being touched by Mr. T.A. N.N.A. [ 63 ] N.N.A. testified that starting in 2007 when Z.A. returned from visits with Mr. T.A., she did not want to eat food and she complained about pain in her vagina.

She also testified that Z.A. would put her hand inside her vagina and that this occurred after more than half of her visits with Mr. T.A. [ 64 ] N.N.A. testified that Z.A. began speaking intelligibly in 2009.

[ 65 ] N.N.A. also testified that Z.A. would sit on the ground with a toy doll between her legs and move backwards and forwards on top of the doll. She said that she has four grandchildren and she has never seen any of her other grandchildren straddle a doll like Z.A. [ 66 ] With respect to Mr. T.A.’s access visit on April 26, 2009, N.N.A. testified that Z.A. returned to her home at 4:30 pm and that she was in pain. Z.A. complained of pain in her vagina and N.N.A. gave Z.A. a bath. She testified that she could see that Z.A. was in pain and that Z.A. could not walk straight.

N.N.A. said that the bath did not soothe Z.A. so N.N.A. took Z.A. to her older daughter’s home, A.F. At Ms. A.F.’s home was N.N.A.’s other daughter, F.A. [ 67 ] N.N.A. said that at Ms. A.F.’s home Z.A. was crying and complaining of pain. She said that F.A. gave Z.A. a bath. After the bath, F.A. reported to N.N.A. that Z.A. had told her during the bath that, “Aba chua, dada chua” which translates to “Daddy touched me, grandpa touched me”. [ 68 ] As a result, N.N.A. testified that F.A. called Ms. F.A.A. in Fiji. N.N.A. did not testify as to any specifics of the conversation between F.A. and Ms.

F.A.A. [ 69 ] N.N.A. stated that the day after Ms. F.A.A. returned home, Ms. F.A.A. and N.N.A. took Z.A. to see Dr. Parikh. N.N.A. testified that she was present throughout this doctor’s visit. N.N.A. stated that during the doctor’s visit, Z.A. stated, “Aba chua pookie, dada chua pookie” which translates to “daddy touched my vagina, grandpa touched my vagina”.

She testified that Z.A. did not say anyone else touched her vagina. [ 70 ] During her testimony on these alleged disclosures by Z.A., N.N.A. was asked to provide more details but she was unable to do so and just sat silently appearing to not understand the question. [ 71 ] When asked for more details regarding Z.A. straddling and motioning back and forth over the toy doll, N.N.A. testified that when she asked Z.A. why she was doing that, Z.A. stated, “Because my Aba does this to me”. According to N.N.A. and Ms. F.A.A., “Aba” was the word used by Z.A. to refer to Mr.

T.A. and nobody else. [ 72 ] N.N.A. testified that today Z.A. does not complain of any pain in her vagina. [ 73 ] N.N.A. ended her direct testimony by stating that Z.A. referred to S.A., Ms. F.A.A.’s second husband, as “Abu Sam” or simply “Abu”. She said that Z.A. never referred to S.A. as “Aba”. [ 74 ] In cross-examination, N.N.A. testified that she provided daycare for Z.A. while Ms. F.A.A. was working. While she had other young grandchildren, she testified that she, and she alone, was the sole daycare provider for Z.A. She testified that Z.A. was never left alone with, or cared for by, S.A.

She stated that there was no particular reason why Z.A. was not left alone with S.A. [ 75 ] I noticed during N.N.A.’s cross-examination that she would often just sit and stare at Ms. F.A.A.’s counsel when she was asked questions and not answer the questions. She appeared to understand English and was able to give her direct examination without difficulty, so it is curious that she appeared to either not understand the questions in cross-examination or was simply choosing not to answer the questions. [ 76 ] N.N.A. testified that Z.A. did not refer to Mr. T.A. very often when she was with N.N.A.

She also testified that she could not remember when Z.A. started referring to S.A. as “Abu” or “Abu Sam”. I also note that prior to Z.A.’s disclosures on April 26, 2009, there was no reason to pay attention to the names Z.A. was using when referring to Mr. T.A. or S.A. I was told that “Aba” and “Abu” roughly translate to “dad” and “daddy”. So, there is no significant difference between those two words and they could easily be used interchangeably without drawing attention that Z.A. was calling a male parental figure in her life by a different name. Despite this, N.N.A. and Ms.

F.A.A. were adamant that Z.A. only called Mr. T.A. “Aba” and only called S.A. “Abu” or “Abu Sam”. I will return to the significance of “Aba” vs “Abu” later in these reasons. [ 77 ] Returning to N.N.A.’s evidence during her cross-examination of Z.A.’s visits with Mr. T.A. over the weekend of April 25 and 26, 2009, it became clear that she does not have a clear recollection of what occurred. [ 78 ] First, N.N.A. testified that when Z.A. returned from her visit on Saturday April 25, 2009, she complained of significant pain in her vagina.

N.N.A. testified that she gave Z.A. a bath but Z.A. was crying and in pain so she took Z.A. to her daughter’s home. In essence she testified that the events that occurred on Sunday April 26, 2009, occurred on Saturday April 25, 2009. In fact, she testified that she could not remember if she sent Z.A. on her visit with Mr. T.A. on Sunday April 26, 2009. [ 79 ] N.N.A. testified that Z.A. was in significant pain. She was crying, could not eat, and could not urinate.

Despite what was obviously significant pain, N.N.A. testified that she did not take Z.A. to see a doctor nor did she ask any of her daughters or their husbands to take Z.A. to see a doctor. When asked why she did not make arrangements for Z.A. to see a doctor, she testified that she could not remember because it was too long ago. [ 80 ] Further in her cross-examination, N.N.A. testified that her memory of what Z.A. said to her was not very clear. [ 81 ] She testified that she did not check Z.A.’s hymen but checked her vagina which she said was red. N.N.A. testified that during the call to Ms.

F.A.A., she could not recall if Ms. F.A.A. asked her to check Z.A.’s hymen. Shortly after she gave this evidence, N.N.A. said that she was not sure about seeing redness around Z.A.’s vagina. She also testified that she could not remember if she checked Z.A.’s vagina after giving Z.A. a bath or after Z.A. went to the bathroom. [ 82 ] N.N.A. was asked if she questioned Z.A. as to what happened at Mr. T.A.’s home and she denied asking Z.A. if someone had touched her vagina. In virtually the same breath, N.N.A. then testified that she asked Z.A. what happened at Mr. T.A.’s home and Z.A. said, “Aba touched my pookie”.

N.N.A. added that she did not have a recollection of when or where Z.A. said these things. She then testified that she could not be sure of the exact words Z.A. used; she said she could not remember.

[ 83 ] With respect to the visit to Dr. Parikh’s office, N.N.A. testified that she had a clear memory of what happened at Dr. Parikh’s office but then added that she could not recall what questions Dr. Parikh asked Z.A. during the visit. However, she testified that she remembered what Z.A. told Dr. Parikh. About a minute later in her testimony, N.N.A. stated that she did not remember what happened in Dr. Parikh’s office and that her memory was foggy. [ 84 ] With respect to Z.A. motioning on top of the toy doll, N.N.A. testified that Z.A. was doing the rocking back and forth motion in 2007.

Z.A. was one year old at that time. N.N.A. testified that Z.A. would motion over the doll when she was watching television or sleeping. When asked how Z.A. could motion over the doll while she was sleeping, N.N.A. said she was mistaken on that point. [ 85 ] N.N.A. said that on April 25, 2009, Z.A. was motioning over top of the doll when she disclosed that Mr. T.A. and Mr. T.A.’s father had touched her. [ 86 ] When asked if she thought S.A. would do something to hurt Z.A., N.N.A. stated that she did not believe that S.A. would do something to hurt Z.A. She stated that she believed only Mr.

T.A. would do something to hurt Z.A. [ 87 ] In re-examination, N.N.A. said she had no clear recollection which day it was that Z.A. came back from her visit complaining of pain in her vagina and she said that this happened on only one day. [ 88 ] On or about May 21, 2009, N.N.A. was interviewed by Social Worker Sonjeeb Kajla, a child protection social worker with the Ministry of Children and Family Development. Ms. Kajla testified and her computer notes of her interview with N.N.A. were tendered into evidence before me (Exhibit 1, pages 24 – 25).

N.N.A.’s testimony before me differs in some significant respects from the notes of the interview with Ms. Kajla. [ 89 ] In the interview with Ms. Kajla, N.N.A. told the social worker that when Z.A. returned home from the visit on Saturday (April 25, 2009), Z.A. complained of pain in her “Bum Bum”. Nowhere in Ms. Kajla’s notes of this interview with N.N.A. does she refer to Z.A. complaining of pain in her “pookie”. At no point in the evidence before me did N.N.A., or anyone else, say that Z.A. referred to pain in her “Bum Bum”.

All witnesses testified that Z.A. disclosed pain in her “pookie”. [ 90 ] According to Ms. Kajla’s notes, N.N.A. told her that Z.A. cried all night long and the crying continued on Sunday and Monday. N.N.A. did not testify that Z.A. cried over those three days, and in fact, F.A. (whose evidence I will summarize shortly) testified that following the bath she gave Z.A. on Sunday, April 26, 2009, Z.A. stopped crying and returned to normal.

Indeed, if it is true that Z.A. cried and complained of pain in her vagina from Saturday until Monday, it makes it even more difficult to understand why someone did not take Z.A. to a doctor to find out what was causing three year old Z.A. so much pain. [ 91 ] Ms.

Kajla’s notes continue stating that N.N.A. told her that the following day (from the notes this must be Sunday April 26, 2009) N.N.A. took Z.A. somewhere (the location where Z.A. was taken has been edited out of the notes) and someone at that location witnessed Z.A. complaining that her “vaginal area and back side were hurting”. [ 92 ] Again, while the notes refer to Z.A. complaining that her buttocks and anus hurt, nobody testified about that in the hearing before me. [ 93 ] According to Ms.

Kajla’s notes, N.N.A. then asked Z.A. if anyone had touched her and Z.A. stated that “Aba and Dadda did” a reference to Mr. T.A. and his father. The notes record that N.N.A. was so shocked by this information that she immediately called Ms. F.A.A. in Fiji and Ms. F.A.A. arranged for a flight home. [ 94 ] This phone call to Ms. F.A.A. in Fiji was another source of contradictory evidence before me. F.A. testified that the phone call actually occurred between herself and Ms. F.A.A. Ms.

F.A.A. initially testified that she spoke to her mother from Fiji and then changed her evidence and said that she spoke to her sister. While not much may turn on this point, I find it curious that there is this inconsistency around who participated in the phone call with Ms. F.A.A. in Fiji after such an allegedly shocking disclosure from Z.A. I would have thought that the phone call to tell Ms. F.A.A. that Z.A. had disclosed sexual abuse by Mr. T.A. was a memorable event. [ 95 ] Lastly, I note that there is no mention in Ms.

Kajla’s notes of her interview with N.N.A of Z.A. straddling her toy doll and motioning back and forth on top of the doll, presumably in a manner that would appear to simulate sexual intercourse. Again, I would have thought that such behaviour from a three year old who is allegedly disclosing that she is being sexually abused by her father would not be overlooked in an interview with a child protection social worker who is investigating to determine whether the child has in fact been sexually abused. Based upon Ms. Kajla’s notes, it appears that N.N.A. did not tell Ms.

Kajla that Z.A. would straddle the toy doll and simulate sexual intercourse with the doll. [ 96 ] In conclusion with respect to N.N.A.’s evidence, I was not impressed with her testimony. She contradicted herself in her evidence before me, and her evidence contradicts, in significant ways, the things she told Ms. Kajla. I find that she does not have an accurate recollection as to what occurred over the weekend of April 25 and 26, 2009, nor does she have an accurate and therefore reliable memory of the visit to Dr. Parikh or Z.A.’s motioning over the toy doll.

Accordingly, I am unable to place any weight on N.N.A.’s evidence. F.A. [ 97 ] F.A. testified that she is two years older than Ms. F.A.A. She said that prior to April, 2009, she felt that Z.A.’s behaviour was quite aggressive, that she felt Z.A. wanted to say something, and that Z.A. would constantly put her hands down her pants complaining she was itchy. She testified that she would see Z.A., on average, two times a week. [ 98 ] F.A. stated that she clearly remembered the events of April 26, 2009. She said that she was at her sister A.F.’s home with her child, her mother, and Z.A.

She said that Z.A. and N.N.A. arrived at A.F.’s home together. F.A. arrived at A.F.’s home at 7:30 pm. [ 99 ] F.A. said that A.F. called her upstairs at one point in the evening because Z.A. was complaining of a sore “pookie”. F.A.

decided to give Z.A. a warm bath with baking soda to try and soothe the pain. She said that Z.A. sat in the bath for about thirty minutes. [ 100 ] F.A. then testified that she took Z.A. out of the bath and Z.A. allegedly said the following: “Do you know why my pookie hurts? Because my Aba touches me there.

Promise me you won’t send me to my Aba’s place.” [ 101 ] F.A. stated that she had a clear recollection of Z.A. saying “Don’t send me to Aba’s place.” A little later in her testimony, F.A. said that Z.A. said that her pookie hurts, “Because my Aba hurts me.” Z.A. then allegedly said, “I trust you Kala”. “Kala” translates to “Aunt”. F.A. testified that she hugged Z.A. and Z.A. then said, “I trust you Kala, that is why I am telling you this.” [ 102 ] F.A. then testified that she told Z.A., “Over my dead body” would Z.A. be sent back to Mr. T.A. [ 103 ] F.A. testified that she then picked up the phone and called Ms.

F.A.A. in Fiji. She stated that she told Ms. F.A.A. that she needed to come home and that she told Ms. F.A.A. that Z.A. did not want to go to her “Aba’s” home. Based upon F.A.’s evidence summarized above, Z.A. had allegedly said much more than not wanting to go visit her father. [ 104 ] F.A. stated that after Z.A. had disclosed this abuse to her aunt, she no longer complained of pain and continued on through the evening with no difficulty; she was allegedly “normal”. [ 105 ] The following day (Monday), F.A. saw Z.A. who allegedly said, “Kala I love you.

You promised me you won’t send me to my Aba’s home.” Then on Friday that week, F.A. saw Z.A. who said that her “pookie” hurt and that “he (presumably a reference to Mr. T.A.) plays with it.” She said that Z.A. was rubbing her hand up and down over her vaginal area and she was crying. [ 106 ] F.A. testified that she thought about calling the police, but she did not do so. She said she made sure Z.A. was safe and then left it to Ms. F.A.A. to call the authorities and report what Z.A. had told her. However, as I will discuss below, Ms.

F.A.A. called neither the police, nor the child protection social worker to report that Z.A. had allegedly been sexually abused by Mr.

T.A. [ 107 ] Lastly, F.A. testified in her direct examination that she had seen Z.A. after the “last court date” (she did not tell me what date) and Z.A. allegedly said, “you promised me you would not send me to Aba – keep your promise”. [ 108 ] F.A. ended her direct examination with an impassioned plea, “I beg you all to give her (Z.A.) justice.” [ 109 ] During her cross-examination, F.A. gave more details concerning the alleged disclosures from Z.A. after her bath on April 26, 2009. [ 110 ] F.A. said that as she was changing Z.A. after her bath, she allegedly disclosed that “My Aba touches me, he plays with it, it hurts”, and “Kala my pookie hurts, my Aba touches it, it hurts, don’t send me to my Aba” and “Aba hurts me, he touches me there, he hurts me”. [ 111 ] F.A. said that during the bath Z.A. was teary and F.A. was comforting Z.A.

She also said she noticed that Z.A.’s vagina was a little bit red. F.A. testified that she thought about taking Z.A. to the doctor but that N.N.A. said that Z.A. was fine and was eating better. [ 112 ] F.A. stated that after Z.A.’s bath, Z.A. went back downstairs and “she became her normal self”. Z.A. had no complaints of pain in her vagina after these alleged disclosures after her bath. F.A. said that all Z.A. wanted to hear that night was that, “she was not going back to her Aba’s home”. [ 113 ] F.A. testified that she called Ms. F.A.A. and told her she needed to get the next flight back home.

She said that she called N.N.A. upstairs and that N.N.A. was present during F.A.’s phone call with Ms. F.A.A. What is startling about F.A.’s testimony is that she did not tell Ms. F.A.A. any of the details of Z.A.’s alleged disclosures during this telephone call. In fact, as I will discuss shortly, it is not clear that F.A. has ever told Ms. F.A.A. of the details of Z.A.’s alleged disclosures. I say that because if F.A. had shared the details of Z.A.’s alleged disclosures with Ms. F.A.A., I would have expected that Ms. F.A.A. would have told Dr. Parikh, Ms.

Kajla, or the police about the alleged disclosure, but that did not happen. [ 114 ] F.A. stated that at some point during this proceeding, Z.A. said, “Kala you made me a promise, I know you are going to court for me.” If Z.A. in fact stated this to F.A., then it appears that Z.A. has been informed about this court case which is most troubling. The concern I have about Z.A. having been informed about this court case is the fact that she believes something bad has happened to her when that fact has not yet been determined. Should I determine that Z.A. has not been sexually assaulted by Mr.

T.A., then in addition to overcoming the lengthy period of no contact between Z.A. and Mr. T.A., these parties face the additional challenge of dealing with Z.A.’s belief that her father has harmed her. Those could be very difficult challenges to overcome. [ 115 ] I have concluded that I am unable to place any weight on F.A.’s evidence concerning Z.A.’s alleged disclosures. I come to that conclusion for the following reasons. [ 116 ] First, I have watched the video recordings of Constable Willcock’s interview of Z.A. Constable Willcock was the RCMP officer in charge of investigating the allegation that Mr.

T.A. had sexually assaulted Z.A. Constable Willcock interviewed Z.A. on May 14, 2009, and that interview was recorded. A copy of that video recording was entered into evidence as Exhibit 9. [ 117 ] I have watched the recorded interview between Z.A. and Constable Willcock carefully. It is clear to me that Z.A. had difficulty focusing on the interview and in conveying any reliable information to Constable Willcock.

In her testimony before me Constable Willcock stated what is obvious after watching the interview – Z.A. was not able to confirm with Constable Willcock any of the information she allegedly told F.A. [ 118 ] Second, I have carefully reviewed the recorded interview between Z.A. and Dr. Korpach. Dr. Korpach interviewed Z.A. for the limited purpose of developing a treatment plan for Z.A. based upon the assumption that Z.A. had been the victim of sexual abuse. Dr. Korpach was careful in her testimony to make clear that the purpose of her interview with Z.A. was not to determine whether or not Z.A.

had been sexually abused, or who had abused her, but rather to determine the best treatment plan to assist Z.A. in dealing with the fact that she had been abused. [ 119 ] Watching the recorded interview between Z.A. and Dr. Korpach on September 16, 2009, it is again clear that Z.A. was distracted throughout the interview. She was unable to focus on the interaction with Dr. Korpach or to confirm what she had disclosed to her aunt and grandmother. Z.A.’s lack of attention in this interview with Dr.

Korpach is not surprising given that Z.A. was only three years old. [ 120 ] Having had the benefit of seeing both of these recorded interviews of Z.A., I find that Z.A. would not have been able to have the detailed conversation with F.A. in which Z.A. allegedly disclosed the abuse by Mr. T.A. She simply did not have the language skills to extract the alleged promise from F.A not to send Z.A. back to visit with Mr. T.A.

Further, I find that Z.A. would not have had the maturity to confirm with F.A., on the Friday following the alleged disclosures, the promise that F.A. allegedly made to Z.A. to ensure Z.A. did not go back to Mr. T.A. [ 121 ] Third, I do not believe F.A. when she testified that after the alleged disclosures, she did not find it necessary to report the information she had allegedly received to the police or social worker investigating these sexual abuse allegations. F.A. said that she left it up to Ms. F.A.A. to pass along the information to the authorities. F.A. testified that when Ms.

F.A.A. returned from Fiji she had a long talk with her sister. F.A. was not specific as to the date of this alleged conversation. [ 122 ] If I am to accept that during this conversation F.A. told Ms. F.A.A. the details of Z.A.’s alleged disclosure, then it is nearly impossible to reconcile why those details were not reported to Dr. Parikh, Ms. Kajla (the child protection social worker), or Constable Willcock. Nowhere in the notes of these professionals, which were tendered into evidence, nor in their testimony during this trial, did any of them refer to Z.A.’s alleged disclosure to F.A.

This despite the fact that Z.A.’s alleged disclosure to her aunt contained the greatest and most explicit detail of the alleged sexual assault by Mr. T.A. [ 123 ] If any of the professionals tasked with investigating the alleged sexual assault of Z.A. had been informed of the information allegedly possessed by F.A., I have no doubt that those professionals would have made it a priority to interview F.A. However, no such interview ever took place. [ 124 ] Fourth, on May 6, 2009, Ms. F.A.A. took Z.A. to see Dr. Parikh. Dr.

Parikh’s clinical notes refer to Z.A. being “sexually molested” but contain no further detail. In his testimony at trial, Dr. Parikh stated that he remembered that Ms. F.A.A. was concerned that Z.A. had been sexually molested by Mr. T.A. and Mr. T.A.’s father. What is significant about this information is that in her alleged disclosure to F.A., Z.A. did not mention her grandfather as a person who had sexually assaulted her. Dr. Parikh did not provide any further detail around the nature of the sexual abuse allegations raised by Ms.

F.A.A. during this medical examination. [ 125 ] Fifth, on May 7, 2009, Constable Willcock interviewed Ms. F.A.A. The interview was video and audio recorded. As well Constable Willcock’s notes of that interview were tendered into evidence. At no point during that interview did Ms. F.A.A. advise Constable Willcock of Z.A.’s alleged disclosure to F.A. or the alleged promise F.A. made to Z.A. not to send her back to Mr. T.A. [ 126 ] In addition to her interview of Ms.

F.A.A., Constable Willcock interviewed N.N.A. on May 11, 2009, and during that interview N.N.A. did not tell Constable Willcock any of the details Z.A. allegedly disclosed to F.A. Constable Willcock interviewed Z.A. as I have already discussed, she interviewed J.W. (Mr. T.A.’s ex-girlfriend), Ms. Kajla, Mr. T.A., Mr. T.A.’s father, and conducted a second interview of Ms. F.A.A. on December 1, 2009. Constable Willcock audio and video recorded the second interview with Ms. F.A.A. on December 1, 2009. Again, during this second interview, Ms.

F.A.A. does not tell Constable Willcock about the alleged disclosures made by Z.A. to F.A. [ 127 ] In light of all of the foregoing, I find that Z.A. did not make the disclosures to F.A. after her bath on April 26, 2009. Ms. F.A.A. [ 128 ] Ms. F.A.A. testified that when Z.A. returned from visits with Mr. T.A. she complained that her “pookie” hurt. Ms. F.A.A. said that Z.A. complained after 75% of her visits with Mr. T.A. In addition to her verbal complaints, Ms. F.A.A. testified that Z.A. would walk awkwardly or appear in discomfort when walking. Ms.

F.A.A. described Z.A.’s walking as if she was trying to squeeze due to her pain. Ms. F.A.A. said that in response she would give Z.A. lots of water to drink and she told Mr. T.A. to give Z.A. plenty of water to drink when he had Z.A. with him. [ 129 ] At some point in 2008, Ms. F.A.A. said that Z.A. told her, “Aba licked my boobie”. Ms. F.A.A. did nothing after hearing this from Z.A. [ 130 ] Ms. F.A.A. testified in her direct examination that she flew to Fiji on April 26, 2009. She said that Z.A. returned home from her visit with Mr. T.A. after she had left for the airport. As it turns out, Ms.

F.A.A. was mistaken about the date she left for Fiji. In fact, she flew to Fiji on April 25, 2009. She was able to confirm this date with reference to her passport. Why she was mistaken regarding the date she left for Fiji was not adequately explained in her evidence. [ 131 ] She said that five or six days into her trip to Fiji she got a phone call on her cellular telephone from her sister F.A. Ms.

F.A.A. testified as to the content of this phone call from F.A. as follows. [ 132 ] She said her sister told her that something had happened to Z.A. and that Z.A. was complaining that her “pookie hurts.” According to Ms. F.A.A., F.A. told her that Z.A. was in considerable pain and that Ms. F.A.A. had to return home immediately. [ 133 ] I pause here to point out that F.A. testified that once Z.A. was reassured that she would not be sent back to Mr. T.A. she was fine and no longer in any pain. The most glaring omission from this conversation between Ms. F.A.A. and F.A. is the fact that Ms.

F.A.A. was not told that Z.A. complained that her father had touched her and that he played with her vagina and it hurt. Also missing from this conversation was any instruction by Ms. F.A.A. to her sister to take Z.A. to the doctor.

[ 134 ] Following this phone call, Ms. F.A.A. testified that she told S.A. that she had to return immediately to Vancouver and she went and caught the first flight home. [ 135 ] When Ms. F.A.A. returned home she arranged to take Z.A. to see Dr. Parikh. N.N.A. told Ms. F.A.A. that she had to take Z.A. to the doctor because Z.A.’s pain following the April 26, 2009, visit was, “the worst pain ever, totally unbearable.” Ms. F.A.A. was told that Z.A. was crawling on the floor she was in so much pain.

As I noted earlier, there seems to be a significant difference between N.N.A.’s account of April 26, 2009, and F.A.’s account of the same evening. In fact, N.N.A. told Ms. Kajla and Constable Willcock that Z.A. was in pain from Sunday until Tuesday, whereas F.A. testified that Z.A. was back to normal after her bath and after Z.A. extracted the promise from F.A. that she would not be sent back to her father. [ 136 ] Ms. F.A.A. testified that she gave Z.A. a bath the morning after Ms.

F.A.A. returned home and while in the bath Z.A. allegedly said, “Aba chua, dada chua” which again translates from Hindi to English as “Daddy touched me, grandpa touched me.” [ 137 ] Ms. F.A.A. testified that she took Z.A. to see Dr. Parikh on May 6, 2009, and that she asked Dr. Parikh to check Z.A.’s vagina. She said that Dr. Parikh spoke to Z.A. and asked her, “Does anyone touch you?” Ms. F.A.A. testified that in response Z.A. said that her “Aba” and “Dada” touched her. [ 138 ] Dr.

Parikh testified about this visit by Z.A. to his office and while he confirmed that he checked Z.A.’s vagina for signs of abuse, he said he did not recall asking Z.A. if anyone had touched her. [ 139 ] Ms. F.A.A.’s testimony concerning the visit to Dr. Parikh is troubling. Before me she testified that Z.A. disclosed to Dr. Parikh that she had been touched by Mr. T.A. and his father. However, in her recorded interview with Constable Willcock on May 7, 2009 (the day after the visit with Dr. Parikh), Ms. F.A.A. told Constable Willcock that Z.A. told Dr.

Parikh, in response to the question if anyone touched her vagina, that her “Dadi (paternal grandmother), Fufi (aunt), Nani (maternal grandmother), Mummy (Ms. F.A.A.), and Aba (Mr. T.A.) all touched her vagina” (Exhibit 1 page 174). [ 140 ] During Ms. F.A.A.’s second interview with Constable Willcock on December 1, 2009, Ms. F.A.A. spoke again about the visit at Dr. Parikh’s office and she told Constable Willcock that when asked who touches her vagina, Z.A. said that her “Aba” and “Dada” touched her “pookie”. So, over the course of approximately seven months, Ms. F.A.A.’s account of what occurred in Dr.

Parikh’s office changed dramatically. What started as a fairly benign list of individuals who touched Z.A.’s vagina had changed to single out Mr. T.A. and his father. [ 141 ] Ms. F.A.A. testified that after the appointment with Dr. Parikh she went home with Z.A. and she asked Z.A., “Why does your pookie hurt?” “What happened?” Ms. F.A.A. then said that Z.A. spread her legs and made a motion with her finger gesturing towards her vagina. What is significant about this evidence is that Z.A. did not make any disclosure at that time regarding her father or grandfather touching her vagina. [ 142 ] Another aspect of Ms.

F.A.A.’s evidence that I found difficult to understand is that she did not contact the police about Z.A.’s disclosures. She said that she was contacted by someone from the police station who arranged her meeting with Constable Willcock. If in fact Ms. F.A.A. had learned that Z.A. had been sexually abused by Mr. T.A., either through disclosures from Z.A. directly or through information obtained from her mother and sister, it is difficult to understand why she did not contact the police. Ms. F.A.A. did not explain to me why she did not contact the police with concerns that Z.A. had been sexually abused by Mr. T.A.

Sonjeeb Kajla [ 143 ] As noted earlier in these Reasons, Ms. Kajla is a child protection social worker with the Ministry of Children and Family Development. Ms. Kajla was tasked with investigating the allegation that Z.A. had been sexually abused by Mr. T.A. On May 21, 2009, Ms. Kajla interviewed Z.A. at Ms. F.A.A.’s home. She testified that during Z.A.’s interview, Ms. F.A.A. was in the kitchen; however, Ms. F.A.A. had to participate in the interview to a degree because during the interview Z.A. reverted to her Hindi language which Ms. Kajla did not understand. [ 144 ] Ms.

Kajla took handwritten notes of her interview with Z.A. She did not record the interview by way of video or audio recording. When she returned to her office, Ms. Kajla typed her notes onto her computer and then destroyed her handwritten notes. Unfortunately, the type written notes do not disclose the questions that Ms. Kajla asked Z.A., so I am unable to determine if Ms. Kajla asked Z.A. any leading questions during the interview. Ms. Kajla testified that she employed the step-wise interviewing technique for interviewing children which would preclude the use of leading questions. [ 145 ] Ms.

Kajla stated that she was unable to establish with Z.A. the difference between a “good touch” and a “bad touch”. As well, Ms. Kajla had no recollection of whether she established with Z.A. the difference between telling the truth or telling a lie. Accordingly, it is difficult to put much, if any, weight on what Z.A. said to Ms. Kajla during this interview given her very young age coupled with the lack of any attempt to determine Z.A.’s comprehension of the content of the conversation. [ 146 ] Ms. Kajla testified that during her interview with Z.A., she asked if anyone touched Z.A.’s pookie. In response to Ms.

Kajla’s question, Z.A. said that, “My Aba touched my pookie.” “My Dadi saved me.” [ 147 ] Z.A.’s “Dadi” is N.N.A. I have already concluded that F.A.’s account of her discussion with Z.A. after the bath on April 26, 2009, did not happen. If I accept that Z.A. said this to Ms. Kajla, that is further evidence to support my conclusion that F.A.’s account of her conversation with Z.A. after the bath did not occur. Z.A. is telling Ms. Kajla that her grandmother saved her not her aunt from whom she allegedly extracted a promise not to send her back to Mr. T.A. [ 148 ] Ms.

Kajla testified that during her interview with Z.A., she got Z.A. to draw on a generic picture of a person and that Z.A. appeared frustrated and angry, poking holes in the paper. [ 149 ] Ms. Kajla also stated that, during her interview with Z.A., she never mentioned S.A. She also testified that Z.A. only referred to

“Aba” and not “Abu” during the interview. Ms. Kajla testified that she clarified with Z.A. that “Aba” was a reference to Mr. T.A. [ 150 ] Ms. Kajla testified that during her interview, Z.A. was a playful child who had difficulty concentrating and was distracted. At a point in the interview, Ms. Kajla testified that Z.A. used a pen and poked holes in the generic pictures of a human that Ms. Kajla was using to assist in the interview. Ms. Kajla fairly conceded that she was unable to say what, if any, significance should be attached to Z.A. poking holes in the picture. Ms.

Kajla also acknowledged that during her interview of Z.A., Ms. F.A.A. intervened to either provide translation assistance or to reassure Z.A. that Ms. Kajla could be trusted and to tell Ms. Kajla the truth. [ 151 ] Also, Ms. Kajla testified that she did not know that Z.A. called S.A. “Abu”. Ms. Kajla was also unaware that, according to Ms. F.A.A., Z.A. had been complaining of a sore vagina since early 2007 and that S.A. had been introduced into Z.A.’s life at about the same time. Ms.

Kajla stated that if she had known this information, she would have taken steps to investigate S.A. as a possible suspect in the sexual abuse of Z.A. [ 152 ] Ms. Kajla also stated that had she known about S.A., she would have taken further steps to determine who Z.A. was referring to when she spoke of “Aba.” [ 153 ] Ms. Kajla testified that at times during her interview, Z.A. contradicted herself. However Ms.

Kajla did not explain how those contradictions factored into her assessment of whether or not Z.A.’s disclosures were reliable. [ 154 ] In her investigation notes that were tendered into evidence as Exhibit 1, Ms. Kajla writes the following at page 22: Reported incident occurred at the end of April while F.A.A. says she was in Fiji where she had gotten re-married. F.A.A. stated that she had called her mother to check and see how Z.A. was doing. F.A.A. stated that during that phone call her mother informed her that Z.A. was complaining her “bum bum” hurt and that she was afraid of her “Aba” (which is Dad).

F.A.A. stated that when she got back home Z.A. continued to express pain that is when she took her to her family doctor. Initially F.A.A. stated she thought maybe Z.A. had worms. [ 155 ] It is not clear to me why Ms. F.A.A. would say the above to Ms. Kajla. It is inconsistent with much of the evidence I heard from Ms. F.A.A., N.N.A., and F.A. First, there is no evidence that Ms. F.A.A. called home to check on Z.A. Rather the evidence is that F.A. called Ms. F.A.A. to report that Z.A. was in pain. Second, Ms. F.A.A. did not speak to her mother during this phone call.

Lastly, F.A. said that Z.A.’s pain disappeared following her alleged disclosures after her bath on April 26, 2009. N.N.A. testified that Z.A.’s pain lasted until Monday or Tuesday following her alleged disclosures and Ms. F.A.A. testified that when she returned home on May 5, 2009, Z.A. was no longer complaining of pain in her vagina. [ 156 ] Also, there is no evidence from N.N.A. or F.A. that Z.A. was complaining of pain in her “bum bum”.

Both witnesses testified that Z.A. complained that her “pookie” hurt. [ 157 ] Taking into account all of the above, I am unable to conclude that Z.A. made a reliable disclosure that she was being sexually abused by Mr. T.A. to Ms. Kajla, or that Ms. F.A.A. was accurately stating to Ms. Kajla what had occurred to Z.A. [ 158 ] On August 18, 2009 Ms. Kajla wrote a letter to Ms. F.A.A. and Mr. T.A. to provide them with her findings from her investigation. Ms. Kajla concluded that Z.A. was in need of protection from Mr. T.A. Ms. Kajla also said that Mr. T.A.’s access with Z.A. needed to be supervised. Ms.

Kajla ended her letter stating that if Mr T.A. pursued unsupervised access to Z.A. the Ministry would find that concerning and would need to take further action. Interview with Dr. Korpach [ 159 ] On September 16, 2009, Dr. Korpach interviewed Z.A. and that interview was audio/video recorded. A copy of the recorded interview was tendered into evidence as Exhibit 13. [ 160 ] In addition to the recorded interview, Dr. Korpach prepared a report dated September 23, 2009. Her report was entered into evidence as part of Exhibit 2. [ 161 ] Dr.

Korpach testified that she was consulted in this case to assist in the development of a treatment plan for Z.A. given that she had been sexually assaulted. Dr. Korpach was clear that she was not trying to ascertain whether Z.A. had been sexually assaulted, nor was she attempting to determine who committed the sexual assault of Z.A. [ 162 ] The audio/video recording of Dr. Korpach’s interview with Z.A. shows a very young child who appears more interested in playing than talking with the doctor. Throughout the recorded interview, Z.A. is distracted and not focused on a conversation with Dr.

Korpach. [ 163 ] While Z.A. makes certain statements during this recorded interview, taking the interview as a whole, I am not satisfied that I can rely on what Z.A. said to Dr. Korpach as establishing that Mr. T.A. sexually assaulted Z.A. Dr. Korpach recounts some of Z.A.’s statements in her report. Starting at page 5 of her report, Dr. Korpach summarizes her interview with, and observations of, Z.A. Among the statements Z.A. made to Dr. Korpach are the following: “Asked if she wanted to see him [her Aba], she stated no. Asked why this was, her response was inaudible.

Asked if she wanted to see him, she indicated she did not. Asked why this was, she stated something about not wanting him to “do this,” slapping at her genital area. Asked who does that to her, her response was inaudible. I asked her again if she wanted to visit [Aba], but she was distracted by the doll play. She then became distracted by the sand tray.” [page 5] “I asked if anyone has ever touched her pookie, and she stated “yes. My [Aba].” Asked what he did, she stated “he punched me. He did everything... He punched me and he poopoo on me.” However, she then laughed and appeared to be acting silly.

I asked her if this was

real or pretend, and she stated “real”. I asked her which part was real, but her response was unintelligible. She laughed, but insisted it was “real.” [page 5] “I asked Z.A. if someone did something to her pookie and she stated “yes,” and continued to say something but I could not understand. She was then distracted by the sand play.” [page 6] “I then asked if anybody touched or hurt her pookie. She responded “yes.

My [Aba].” Asked what [Aba] did to her pookie, she was distracted.” [page 6] “After some general play, I asked Z.A., in order to assess her acquiescence, “Did you say your Abu touched your pookie?” She corrected me, “no. [Aba] He’s an adult.” I asked her what [Aba] did to her pookie and she moved her hips from side to side and said “sexy, sexy, sexy.” As I did not understand this the first time, I asked her, “What?” She then repeated this action and statement.

She then talked but I was unable to understand what she was saying except for the word “girlfriend”. [page 6] “I asked her if she wanted to visit [Aba] or go to [Aba’s] house but could not understand her response. Eventually she said that she wanted to go to the doctor’s and not to [Aba’s] house.” [page 6] “I then asked her if she could show me with the baby doll what her [Aba] did. She took the doll from me, placed it on the floor on it’s back, straddled the doll, and moved her hips, appearing to simulate intercourse. She indicated she was her [Aba] and the doll was her.

Asked how this felt to her pookie, she did not respond. Asked if her pookie liked what her [Aba] did, she stated no. She agreed that it hurt.” [page 6] “I then asked Z.A. if her [Aba] has a pookie. She stated he does not, but that he has a “beebee.” She then became silly and stated he has a “gaga.” I then asked her to draw a picture of what his beebee looks like. I drew a gingerbread figure and she drew a curved line on the genital area.

She then scribbled on the genital area and commented “that’s all beebee.” She then scribbled on the face of the picture.” [page 6] “Asked if anyone else touched her pookie, Z.A. said “no one.” I asked if her mother touched her pookie and she stated no. She also stated no to her Abu touching her pookie. Asked if the doctor touched her pookie, she began throwing sand and appeared agitated and angry. Asked what she was angry about, she stated “I’m mad at [Aba].” I then suggested she redirect her anger into hitting the sofa. She did so and stated she was angry at [Aba].

Asked if she was angry with anyone else, she stated she was angry with her mother. [page 7] “Z.A. indicated, when asked directly, that her Dada (paternal grandfather) did not touch pookie. I then asked if this was real or pretend and she stated “pretend.” I asked if [Aba] touching her pookie was real or pretend and she stated “pretend.” She indicated anger with [Aba], and took sand from the sand tray and placed it on the drawing.” [page 7] “Z.A. stated, when [Aba] was on top doing “sexy, sexy, sexy” this hurt.

Asked if anything came out of his beebee, she laughed and stated what sounded like “munga.” I attempted to have her clarify what this was but she could not. I asked her if [Aba] ever made her cry, and she responded affirmatively and offered “he said you don’t belong to your parents. He said you belong to me.” She stated this made her feel very sad. She asked me “you should take me away from him.” I asked her if she meant Abu, and she clearly stated “no. [Aba].” [page 7] [ 164 ] I am of the view that the foregoing statements made by Z.A. during her interview with Dr.

Korpach are not sufficiently reliable that I can conclude from them that she told Dr. Korpach that Mr. T.A. had sexually assaulted her. [ 165 ] When she slapped her genital area, Z.A.’s response as to who had done that to her was inaudible. [ 166 ] There is no evidence that Mr. T.A. or anyone for that matter, has ever punched Z.A. or defecated on her, although Z.A. insisted that what she was saying was real and not pretend. [ 167 ] Dr. Korpach testified that she purposefully mixed up her reference to Aba by calling him Abu on two occasions and that Z.A. corrected Dr.

Korpach by confirming she was talking about her Aba. While on the surface it appears that Z.A. is certain who she is referring to, I am not. Mr. T.A. tendered several short video recordings he had taken of Z.A. during his access visits. In those videos it is clear that Z.A. refers to Mr. T.A. as Aba and Abu interchangeably. [ 168 ] Z.A.’s demonstrations as to what her Aba did to her are confusing. First she sways her hips back and forth while saying “sexy, sexy, sexy,” and then on the second occasion she places the toy doll on the ground and straddles it moving her hips in a motion that Dr.

Korpach felt simulated sexual intercourse. While I agree that Z.A.’s movements over the doll could be construed as simulating sexual intercourse, I am not sure that is the only conclusion to be drawn from her actions. I am unable to conclude from Z.A.’s actions what it is she is demonstrating either by swaying her hips back and forth and saying “sexy, sexy, sexy,” or straddling the doll on the ground and moving her hips back and forth. [ 169 ] Further, when asked if anyone else touched her pookie Z.A. said “no one.” But it is clear that others touched Z.A.’s vagina. Ms.

F.A.A. and N.N.A. both touched Z.A.’s vagina when bathing Z.A. and cleaning her after she went to the bathroom. [ 170 ] As well, near the end of the interview Z.A. stated that Aba touching her “pookie” was “pretend”. [ 171 ] Lastly, Z.A.’s statement that her Aba said, “you don’t belong to your parents... you belong to me” is not something Mr. T.A. would say to Z.A. He is Z.A.’s parent. However, it could be something that S.A. might say to Z.A. However, I am unable to conclude who said that to Z.A. because it is not clear to me who Z.A. is referring to when she speaks of her Aba.

Also, given the significant problems I have noted concerning Z.A.’s reliability, I am unable to conclude that anyone made that statement to Z.A. [ 172 ] Lastly with respect to Dr. Korpach’s

summary of her interview with Z.A., I find it significant that, as Dr. Ley pointed out, on

seventeen separate occasions Z.A.’s response to Dr. Korpach’s questioning was either inaudible, unintelligible, or Z.A. was acting sillyor was distracted and did not respond. [173] Given all of the above, I find that Z.A.’s statements to Dr. Korpach are simply too unreliable to draw a conclusion that Mr. T.A.sexually assaulted Z.A. Put another way, I find that Z.A.’s statements to Dr. Korpach do not establish, on a balance of probabilities, thatMr. T.A. sexually assaulted Z.A. [174] I will end my discussion of Dr. Korpach’s evidence by pointing out that in her report she records information she received fromMs.

F.A.A. that is not accurate. [175] On page 2 of her report, Dr. Korpach records that, “Z.A. is reported to have complained about having a sore “pookie” since theage of three after having returned from her father’s visits. It is also reported Z.A. has been complaining of pain in her genital and analarea since January, 2009.” In fact, according to Ms. F.A.A.’s testimony before me, Z.A. began complaining of having a sore vagina inearly 2007 – before Z.A. was one year old. The complaints did not begin in January, 2009. As I noted earlier, Ms.

F.A.A. commencedher relationship with S.A. in early 2007. [176] On page 3 of her report, Dr. Korpach records that, “Z.A.’s mother also reported that Z.A. has observed a significant history ofdomestic violence.” Ms. F.A.A. and Mr. T.A. separated when Z.A. was only three months old. While it may be accurate to say that Z.A.was present on May 17, 2006, the date of the physical altercation that led to their separation, I find it inaccurate to state that Z.A.observed a “significant history of domestic violence.” [177] Lastly on this point, at the bottom of page 2 of her report, Dr.

Korpach indicates what she was told about the reason Ms. F.A.A.returned from Fiji in early May, 2009. Dr. Korpach states, “Apparently after visiting with her father she [Z.A.] complained of her‘pookie’ being sore to her grandmother. [Ms. F.A.A.] returned early from the trip [to Fiji] because Z.A.’s grandmother was veryconcerned. Z.A. was taken to the family doctor.” [178] Conspicuous by its absence is any mention of Z.A.’s allegedly detailed disclosure to F.A. about Mr. T.A. playing with Z.A.’svagina and it hurting Z.A.

Case Law Regarding Hearsay Evidence Of Children [179] The evidence before me of Z.A.’s disclosures is hearsay. While I acknowledge that the audio/video recording of Z.A.’sinterview with Dr. Korpach records what Z.A. said, the video is nonetheless an out of court statement by Z.A. being introduced throughthe digital recording for the truth of its contents. I am of the view that the recorded interview of Z.A. with Dr. Korpach is hearsayevidence. [180] Hearsay statements of children may be admissible if the requirements of necessity and reliability are met – R. v. Khan (1990), (SCC), 59 C.C.C. (3d) 92; Foote v.

Foote, [1988], B.C.J. No. 278. [181] In R.(S.F.) v. R.(E.C.), (B.C.S.C.) Madam Justice Dillon reviewed the law relating to the admissibility ofhearsay statements of children. In R., supra, Justice Dillon was considering the statements of a 5 year-old boy in a case where the motheralleged that the father had sexually abused their son.

In the case before her, Justice Dillon stated, “I have no hesitation in determiningthat the hearsay evidence of these statements was necessary given the age of the child and the nature of the proceedings” (para 42). [182] I find that the hearsay evidence of Z.A.’s disclosures is necessary for the same reasons articulated by Justice Dillon. In thiscase, Z.A. was only three years old when she made her disclosures and, coupled with the nature of these proceedings, I find that it isnecessary to admit the hearsay evidence of Z.A.’s statements.

The real issue in this case, as it was in the R. case, is a question of thereliability of the hearsay evidence. [183] In considering the reliability of the child’s statements in the case before her, Justice Dillon reviewed the indicia of reliability thathave been established in R. v. Khan, supra, and the cases that have considered R. v. Khan, supra. [184] Justice Dillon listed the indicia of reliability as follows: i. Timing of the statement; ii. Demeanour of the child; iii. Personality of the child; iv. Intelligence and understanding of the child; v. Absence of motive of child to fabricate; vi.

Absence of motive or bias of the person who reports the child’s statement; vii. Spontaneity; viii. Statement in response to non-leading questions; ix. Absence of suggestion, manipulation, coaching, undue influence or improper influence; x. Corroboration by real evidence; xi. Consistency over time; and

xii. Statement not equally consistent with another hypothesis or alternative explanation. [ 185 ] Reviewing the factors above relating to a determination as to whether a child’s hearsay statement is reliable, it appears the issue of reliability has two aspects. First, the court must determine whether the child is a reliable source of information. Second, the court must determine if the statement offered in court is a reliable account of what the child said.

In circumstances where the child’s statement is audio/video recorded, the second aspect of reliability will not arise. [ 186 ] Turning to the first aspect of the reliability determination, I find that Z.A., at the time she made her disclosures, was not a reliable source of information. She was only three years old. There was no attempt by any of the professionals who interviewed Z.A. to determine if she knew the difference between telling the truth and telling a lie. [ 187 ] A review of Z.A.’s statements to Dr.

Korpach listed earlier in these reasons should be sufficient to dispose of this aspect of the reliability determination. Her statements to Dr. Korpach were confusing and contradictory. There was no consistency to what she was telling Dr. Korpach. [ 188 ] While Z.A. maintained, during her interview with Dr. Korpach, that it was her Aba who touched her and not her Abu, given that she used both of those names interchangeably to refer to Mr. T.A., it is unclear who she was referring to when she spoke of her Aba. According to Ms. F.A.A., Z.A. only referred to Mr. T.A. as her Aba.

However, prior to Z.A.’s disclosures, Ms. F.A.A. would have no reason to pay attention to how Z.A. referred to Mr. T.A. And the audio/video recordings of Z.A., entered into evidence as Exhibit 7, make it clear that prior to Z.A.’s disclosures, she referred to Mr. T.A. as Aba and Abu interchangeably. [ 189 ] However, as I discuss below, there is some very compelling real evidence that corroborates Z.A.’s statement that someone touched her vagina. Dr. Fujiwara testified that Z.A. has a torn hymen which, according to Dr.

Fujiwara is, “...abnormal and indicates evidence of attempted blunt penetration of the vagina consistent with the given history of genital fondling. It is extremely unlikely that the findings would be produced by either accidental or self-inflicted injury.” [ 190 ] Turning to the second aspect of the reliability determination, namely, did the witnesses provide me with a reliable account of what Z.A. said to them, I conclude that other than the audio/video recording of Dr.

Korpach’s interview with Z.A., they did not. [ 191 ] I have already concluded that Z.A.’s alleged disclosure to F.A. in the bathtub on April 26, 2009 did not occur. If Z.A. said something to F.A., I have no way of knowing what was said because F.A. did not tell anyone what Z.A. said. [ 192 ] For the reasons I gave earlier, I have concluded that N.N.A. does not have an accurate recollection of what Z.A. said to her on April 26, 2009. Her evidence was at times confused and contradictory. [ 193 ] None of the family members to whom Z.A. allegedly disclosed wrote down what she said. Ms.

F.A.A., after hearing Z.A.’s statement that Mr. T.A. had touched Z.A., did not call the police. When contacted by the police, Ms. F.A.A. told Constable Willcock what Z.A. allegedly said in Dr. Parikh’s office. However, in her second statement to Constable Willcock in December, 2009, Ms. F.A.A. changed her evidence and said that Z.A. told Dr. Parikh that only Mr. T.A. and his father had touched Z.A. [ 194 ] Dr. Parikh testified that he did not ask Z.A. any questions about people touching her, contrary to what Ms. F.A.A. said in her evidence. [ 195 ] While Ms.

Kajla provided her typewritten notes of the information she obtained from Z.A., I watched the attempt at an interview of Z.A. by Dr. Korpach. In light of that evidence, I find I cannot rely on Ms. Kajla’s record of her interview because I believe that her interview would be fraught with all of the difficulties so clearly demonstrated in the recorded interview by Dr. Korpach.

Conclusion Regarding Z.A.’s Disclosures [ 196 ] Taking into account the indicia listed above that should be considered when determining if Z.A., at the time of her disclosures, was a reliable source of information, I have concluded that she was not. Also, taking into account the indicia listed above that should be considered when determining if the witnesses are giving a reliable account of what Z.A. said, I have concluded they are not. Accordingly I find that the hearsay evidence of Z.A.’s disclosures is simply not reliable. I am therefore unable to place any weight on those disclosures in determining if Mr.

T.A. sexually assaulted Z.A. MEDICAL FINDINGS OF SEXUAL ABUSE [ 197 ] As noted earlier, there is evidence that Z.A. has a torn hymen. This evidence raises serious concerns that Z.A. has been sexually assaulted. [ 198 ] On May 27, 2009 Dr. Fujiwara conducted a medical exam of Z.A. from which she concluded that Z.A. has a torn hymen. Mr. T.A. did not tender a contradictory medical opinion as part of his case. Accordingly, subject to what I will say shortly, Dr. Fujiwara’s opinion is uncontradicted. [ 199 ] Dr. Fujiwara testified that she conducted her exam of Z.A. with Z.A. in a supine frog position.

She said that typically after she conducts the exam of a child in the supine frog position, she will turn the child over onto the child’s knees and place the child in a knee to chest position for a second exam. However, she said that if the child becomes upset and is restless she will not continue with the exam. She said she does not force children to have an exam. [ 200 ] In Z.A.’s case, Dr. Fujiwara said that Z.A. became upset during her exam so she did not turn Z.A. over and conduct the knee to chest exam. [ 201 ] Dr.

Fujiwara said that she had a clear view of Z.A.’s hymen during the supine frog exam and she was able to see the rim of Z.A.’s hymen on the right and left. She said that she did not see any hymen at the 5 o’clock to 7 o’clock position in Z.A.

[ 202 ] Dr. Fujiwara said that when she sees this finding in a child, her conclusion is that the child has suffered blunt penetration or attempted blunt penetration of the vagina. Dr. Fujiwara further testified that such a finding is unlikely to be the result of an accident or self inflicted. She said this because when a female child fa

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