(FAMILY DIVISION)
Citation: Children’s Aid Society of Inverness/Richmond v. S.S. , 2009 NSSC 155
Date: May 8, 2009
Docket: SFPACFSA-058926
Registry: Port Hawkesbury
Between:
Children’s Aid Society of Inverness/Richmond
Applicant
v.
S.S. and D.S.
Respondent(s)
Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.
Section 94(1) provides:
“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 subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child.”
Judge: The Honourable Justice Moira Legere Sers
Heard: See attached list
Counsel: Lindsay McDonald, for the applicant
Hugh MacIsaac, for the respondent S.S.
Coline Morrow, for the respondent D.S.
November 10, 12, and 13, 2008, at Port Hawkesbury, Nova Scotia
December 17, 18, and 19, 2008, at Port Hawkesbury, Nova Scotia
January 20, 21, 22, 26, 29, and 30, 2009, at Port Hawkesbury, Nova Scotia
February 11, 12, 24, 25, and 26, 2009, at Port Hawkesbury, Nova Scotia
March 9, 10, 11, 24, and 25, 2009, at Port Hawkesbury, Nova Scotia
April 1, 2, 3, 6, 7, 8, and 9, 2009, at Port Hawkesbury, Nova Scotia
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Editorial Note
Identifying information has been removed from this electronic version of the judgment. |
By the Court:
Legal Context
[1] The Protection application by the Children’s Aid Society of Inverness/Richmond began on May 28, 2008. It concerns two children, A. (dob - September *, 2000) and V. (dob - July *, 2002).
[2] The application alleges that these children were in need of protective services pursuant to Section 22(2)(b),(d),(f) and (g). The Agency asserts that the children are at risk of physical and emotional harm and sexual abuse.
[3] Their primary focus, at this time, concerns their belief that the children have suffered emotional harm (S.22(f) and (g)) and will continue to be harmed and be at risk without appropriate interventions. They allege that the mother is currently unwilling or unable to provide necessary and appropriate services and intervention to remedy the harm.
[4] This is the First Disposition Hearing. It began on November 12, 2008, and ended on April 9, 2009, lasting a total of 29 days. 102 exhibits were produced. Twenty four (24) witnesses gave testimony.
[5] The parents had completed three days of evidence on April 15, 16 and May 16, 2008, in their Divorce hearing when this child protection proceeding commenced. The private proceeding has been stayed while this proceeding is completed.
[6] The Respondent mother availed herself of her right to cross examine six police officers and seven agency workers, including the access supervisors. Both sets of grandparents testified, as well as a child psychologist, the Assessor, a pediatrician and a few character witnesses for the mother. An expert in the art of interviewing children also testified.
[7] Only the evidence from that hearing specifically tendered by counsel in this proceeding forms part of this Disposition hearing.
Agency Plans of Care
[8] The first Plan of Care filed by the Agency on October 23, 2008, sought to continue the care of the children with the mother, lifting the father’s supervised access.
[9] The Amended Plan of Care dated February 11, 2009, to which the parents are responding, proposes removing the children from the mother’s care and placing them with the father with conditions of compliance and services. They wish to avoid placing these children in foster care pending an appropriate resolution of this case.
Parties Position
[10] The mother presents with an un-shakeable belief that the father has sexually abused his children. The mother’s explicit and implicit lack of compliance with the proposed strategy of services and therapeutic intervention is the main obstacle to effective therapeutic intervention with the children.
[11] Interwoven with this obstacle is the involvement of the children in the mother’s belief system such that the oldest child may believe she has been sexually and physically hurt by the father.
[12] The mother’s belief is reinforced by her parents belief that the father poses a threat to the children, a belief that is reinforced by their conduct and translated to the children.
[13] The Agency separately, and in conjunction with RCMP, investigated each of the three series of physical and sexual abuse allegations, each one arising out of statements made by the child A. to the maternal grandmother in 2005, 2007 and 2008. There are also statements alleged to have been made by the younger child V. There are subsequent statements repeated by the child A. and, to a lesser extent, V. to the grandfather, mother, maternal uncle, and at least two doctors.
[14] There are three joint investigative interviews (Children’s Aid Society and RCMP) for each series of statements. The interviewers did not participate in more than one interview.
[15] The child, A., gave a graphic description of events in the first statement in August, 2005, provided no disclosure in 2007 and some questionable disclosure in 2008. The child, V., provides no disclosure in these interviews. Her disclosures are conveyed largely through the maternal grandmother and mother.
[16] The Agency and the RCMP were unable to substantiate physical or sexual abuse of the children by the father.
[17] The maternal grandparents and the mother dispute the findings and challenge the sufficiency of the investigative process of both the RCMP and the Children’s Aid Society.
[18] They argue that the RCMP immediately, without completing a full investigation, questioned the credibility of the maternal grandmother, relied on the results of the polygraph and prematurely concluded that there was no evidence to substantiate charges against the father.
[19] They argue that the Children’s Aid Society relied on the police findings, failed to maintain their objectivity and failed to independently investigate the allegations.
[20] Finally, they allege that the assessor, in turn, relied on the findings of the Children’s Aid Society and the RCMP, and gave improper weight to the polygraph, thereby invalidating the conclusions in her assessment.
[21] The mother alleges that any therapist, who has knowledge through the investigative and assessment process, is tainted and conclusions acquired by way of this inadequate process are questionable.
[22] The mother concludes that the subsequent statements by the child A. have not been investigated appropriately; thereby exposing the children to the ongoing risk of sexual abuse at the hands of her father.
[23] The mother contests the Agency’s continuing involvement; seeks sole care with supervised visitation for the father. She has proposed a continuation of the supervised visits from 9:00 a.m. to 7:00 p.m. every day, two weeks at a time (to accord with the father’s work schedule).
[24] The father agrees with the Agency’s revised Plan of Care.
The Evidence
[25] If the child is not going to testify, her hearsay statements are presumptively inadmissible. R. v. Khelawon [2006] S.C.C. No.57, and R. v. Blackman [2008] S.C.C. No. 37, Charron J.
[26] To determine admissibility these statements must first be relevant to the enquiry and must then be considered within the circumstances in which they occurred to determine necessity and reliability.
Relevance
[27] If these statements were made, they are relevant to this child protection enquiry. They relate to the grounds of protection alleged. Whether they are ultimately accepted for their truth or for the fact that they have been made will be directly related to the relief claimed and the Plan of Care. This is the central issue before the Court.
Necessity
[28] The child A. was 5 at the time of the first alleged disclosure in August 2005. The events preceding the hearing indicate she has been questioned multiple times by family and professionals. The professional therapists and the police have concluded that, at this stage, further questioning will produce unreliable results due to contamination of the child’s memory.
[29] I conclude that the test of necessity has been met due to her age, the fact that subjecting her to cross-examination would be damaging and fruitless due to the history of investigation.
Reliability
[30] The second test is the question of reliability of these statements. In order to establish the circumstances in which the statement came about, the evidence of the history of the relationship and the context in which the statements were given to police, the Children’s Aid Society, doctors ,the grandmother and mother is necessary. This evidence spans the marriage and more particularly focuses on the period between 2005 and 2008.
Relationship history between the parents
[31] Except for university, the mother has essentially lived with her parents until she was married. Her parents raised her within a very traditional marriage that continues to date. Her mother was occupied largely as a homemaker who sometimes worked outside the home. Her parents are active participants in their church. Both support their daughter and are very closely connected and influential in her life and the life of their grandchildren.
[32] The mother completed her Bachelor of Education degree and has completed her courses for her Masters, subject to her thesis. She is actively involved in her *.
[33] The father comes from a stable family. His parents live in *. He enjoys their support and that of his siblings. Both of his parents have worked outside the home for a significant period of time
[34] The father completed one year post secondary education (CEEGEP) after high school, two years as a *, one year in M., one year in J..
[35] He joined the * Program, which brought him to Cape Breton where he met his wife. She was approximately 25 years old and he 23 years old. They were acquainted for approximately three months. The father left Cape Breton to continue with * in J.. Soon after, the mother contacted him to advise that she was pregnant.
[36] He cut short his term with * Program in order to be with the mother during the pregnancy. He returned to *, picked up his belongings and journeyed to Cape Breton where he attended with the mother the usual prenatal classes and attended the birth of their first born.
[37] They commenced living together in February 2000, married on July *, 2001, and separated in June, 2007. They knew very little of one another. Details of their marital difficulties are more fully discussed in the ‘Rule Assessment’.
[38] The relationship appeared stable at least through the first child's birth. It deteriorated significantly due to cultural and religious differences in their family of origin, their different views on spiritual matters, different lifestyles and experiences and different philosophies of parenting. Conflict soon developed.
[39] The mother enjoys stable employment and relies on the significant involvement of her parents in her life. This enables her to teach and attend meetings locally and in Halifax.
[40] Both grandparents are on * pensions . They live close by. Aside from their own pursuits, they made themselves available to babysit the grandchildren, assist their daughter and son-in-law in moving into their home, maintain and mow the lawn, cleaning the driveway, fix the plumbing, paint and do carpentry work, clean and effect household repairs, run errands, prepare suppers, drive the children or the parents when necessary. In their own words, they were always available to help and, in the beginning, there was a significant amount of family time spent together.
[41] The father has not been consistently employed in his field in Cape Breton, although he has consistently pursued employment and has been employed since 2007 on a two week on /off basis. When not at work, he participated significantly in the care of the children.
[42] When A. was two years of age, she began to exhibit strong personality and behavioural problems. Both parents attempted to address these problems within the context of a crumbling relationship. They turned to advice they observed on “The Nanny Show” to cope with her behaviour.
[43] By this time, the mother described frustration about the father’s lack of employment. They had a new house, she was pregnant with a second child and their view of joint parenting and sharing of household chores differed.
[44] The father resented the constant and plentiful, at times unsolicited, interventions and assistance received from the maternal grandparents. Neither handled this conflict diplomatically. The mother continued to rely on her parents to intervene and support in the household maintenance and in many other areas of their life.
[45] The decisions regarding the household were governed by decisions made between the mother and her parents with the growing resentment of the father. When he came home from work, the grandmother resented his wish to have her return to her home and allow him to take care of his children.
[46] The relationship deteriorated between the grandparents and the father. Initially, there was daily contact between the families. Gradually, as the marital conflict continued to grow, the resentment and disapproval that existed one with the other, increased. The father attempted to assert his authority as parent and met with the growing resentment of the maternal grandparents.
[47] Ultimately, the father was informed he was not welcome in the grandparent’s home; although, they expected to continue to visits their daughter in her household without interruption. He retaliated by letting the grandfather know they were not welcome in his home.
[48] Between 2005 and 2007, the mother expressed to the father her discomfort with his parents coming to visit or stay with them. They were asked not to visit during that period of time.
[49] Thus, the father had little support from his own family through this turbulent time.
[50] The father’s view of parenting was collaborative. The mother’s view appeared to be more individual and directive; less collaborative with the father, more with the grandparents.
[51] This essentially moved the father out of the centre of the parental relationship to a secondary role. This was not something he willingly consented to do. All parties recount their version of the marital history. Friction continued to grow.
[52] The mother became the primary financial provider. The father contributed financially as well. Each parent assumed a significant parenting role.
[53] There were times when the father was unemployed and the principal parent. They argued about how he assumed that role, what he accomplished during the day and whether he did so in accordance with the mother’s expectations.
[54] The father was an outsider in the context of the mother’s extended family. They would argue about such things as whether the children should go on a pilgrimage to M., occasionally organized by the grandmother. The father thought they were too young, the mother disagreed. On these occasions, the mother and her parents would override the father’s wishes. Once the children became engaged in the discussions it was, in the father’s eyes, a no win situation if he continued to protest.
[55] They argued about praying in the car, about how much noise the father and children made in church, about his lack of sufficient reverence for their church traditions. The grandfather was uncomfortable because he talked out loud to the children in church and caressed and massaged them while they sat on his lap during service, untying their hair after their daughter spent considerable time getting them ready for church. This massaging and caressing took on a more sinister meaning in 2005 after the first disclosure to the grandmother.
[56] They argued about whether the children should have milk or juice at their meal. The father wanted to limit their intake because it spoiled their supper. The mother tended to acquiesce to the children’s demands to have liquid as and when wanted. These arguments, although seemingly trivial rather ordinary differences of opinion at first, developed into division between the grandparents and the father and in actual skirmishes between the adults, neither giving in or cooperating in a joint resolution.
[57] As they continued to live together, conflict escalated. Their method of dealing with their conflict deteriorated into name calling and rude behaviour. On one occasion, the mother admits hitting the father and on another, during a skirmish between the two, she spilled juice on him. She alleges he called her names. While she alleges he called her a cow she knows or ought to know that is not an accurate translation of what took place.
[58] Any sign of collaborative parenting vanished completely, each attempting to assert their own method of discipline and parenting views on their children. When they clashed, a skirmish developed, usually in front of the children.
[59] On June 24, 2007, both took some of the other’s belongings, police were involved and a cooling off period was suggested. This was the final date of separation.
[60] The mother continued to involve her parents to sustain the household and the children in a manner she thought was appropriate.
[61] After separation, the grandparents were present when the children were exchanged to “protect the mother”. The grandfather began to videotape the exchanges and the father retaliated by using his cell phone camera. There are a number of occasions where they decided to video tape their interactions with each other as the children were passed from one to the other. Police and the Children’s Aid Society became significantly involved.
[62] While both parents are described by the assessor as loving parents, the children lived in this escalating conflict and deteriorating environment.
Pre- Child Protection Involvement
[63] The couple decided, in August of 2005, to take a vacation together, leaving the two children with the maternal grandparents. It was in this environment that the first series of statements by the child to the grandmother emerged.
[64] The only direct evidence of what A. has said flowing from the August 27, 2005, discussions between the child and grandmother is contained in child video statements to police and the Children’s Aid Society, after the fact.
[65] All other accounts are relayed through the grandmother, the grandfather and mother to other professionals.
Child Statement - August 31, 2005, at 9:30 a.m.
[66] The joint interview of the child by Cpl. S., of the RCMP, and Georgette Burke, of child protection, occurred after at least 5 other discussions with family members.
[67] Cpl. S. had the requisite training to interview children. The video itself is the best evidence.
[68] The mother was invited into the room with the child and the interviewers. A considerable period of time was spent establishing rapport. The child would not speak while Cpl. S. was in the room. He left and observed the remainder of the interview outside the room.
[69] In establishing this rapport, the child said she has a cat. The mother later advised this is not true.
[70] The child did not appear distressed and continually engaged with the mother, whispering in her ear to avoid speaking out loud to the adults.
[71] Her first statement relating to the focus of the interview is:
Daddy was mean to me. Daddy hurt me all over my bum. And my back. Hurt me everywhere.
[72] A. said she is asleep.
[73] When asked how he hurts her and when asked whether it is with a finger and teeth, A. corrects the worker by saying “with his hands and teeth. He bites me”. She is sitting with her legs open and points to her genital area, front and back. She also points to her chest. She says he comes into her room when she is asleep, it hurts. How does she know, “I am sleeping, I see him at the door (through the crack), he wears black socks”. When asked when, she advises “every day when I am sleeping”... She is asked whether his tongue stays in his mouth and she indicates “yes”. When asked when was the last time, she said “after my birthday”(i.e Sept. *, 2000).
[74] This timing, if true and accurate, would mean the previous September of 2004, when she was 4 years old.
[75] On August 28, 2005, the parents returned from their trip. On August 29, 2005, the mother was invited to come to the grandparent’s home. There was a meeting between the child and the mother upstairs.
[76] They returned downstairs where, to effect the “disclosure”, the child whispered in the grandmother’s ear and the grandmother told the story to the mother. The mother asked A. to confirm whether what the grandmother said was true and she did so. The mother amended her original statement to police in her testimony in April, 2009. In April, she testified the child largely disclosed directly to her. Her memory would be more accurate and her motivation more pure in August/September, 2005.
[77] On August 29, 2005, the mother took the two girls to S. and, in the course of the travel, the mother questioned A. in the presence of the younger child about the disclosures.
[78] In the evening of August 29, 2005, the mother told the father about these statements. He denied involvement and continues to do so to date.
[79] The local child protection agency became involved informally by a referral from the mother on Tuesday, August 30, 2005. The mother contacted Georgette Burke, a senior social worker with child protection. Ms Burke met the grandparents, the mother and the two children at the Doctor’s’s office. The mother went into Dr. M.’s office with the child.
[80] By the time the child saw a doctor on August 30, 2005, she has recounted her story and been questioned on at least 5 separate occasions. The mother then relayed what Dr. M. said. The Doctor’s’s notes confirm that:
A. was not intimidated by exam...there was no sign of intercourse, no infection. There was a small bruise just inside the labia at front not necessarily caused by abuse, but consistent with the allegation that a finger...
[81] Dr. M. asked the child:
did someone touch you where they are not supposed to? A said to Dr. M.... yeah, Papa * . Dr. M. asked with what...did he touch you? A. said with his teeth and his fingers. That she was touched “there” with fingers and teeth.
[82] The doctor’s recorded findings read:
findings red bum sore front says her Dad touched her with his hands and teeth..says there have been other occasions
bruise left buttock........(.illegible)...may be consistent with finger
[83] The mother testified that the Doctor illustrated to her, with the child on the examining table, how a finger might have caused the bruise.
[84] On September 01, 2005, Dr. M. clarified with the Agency that the bruise was “small , bluish/purple, just inside the vaginal lip”. Dr. M. was unable to say how old, somewhere in the range of two days to two weeks and:
the child could possibly have done it to herself if rough or by riding a trike. There was no sign of infection and no smell
[85] The bruise could have happened while the parents were away. The grandfather told the police in his September, 2005, interview that the children loved bike/trike riding.
[86] While the grandparents were caring for the children in the week proceeding the disclosure, the children had access to trikes, both at the grandparent’s home and their own home.
[87] At the hearing in 2009, the grandparents testified that the children did not have access to their trikes for the entire time the parents were away.
[88] I do not accept this evidence as probable. I see this evidence as an attempt to eliminate any serious look at anything other than the father as a possible hypothesis for the bruise to sustain their belief that he is the perpetrator of abuse.
[89] While the mother spoke to Dr. M., the social worker stayed with the grandparents to speak with the grandmother.
[90] She informed the social worker as follows:
about a year ago A. started to tell her something and stopped, saying ‘oops...it’s a secret’. She noticed a pimply rash...dots on A’s bum front..off and on..., in hindsight she wonders if this was a beard rub... also seen on V. on a couple of occasions in past 6 months. D.S. has a beard.
[91] The grandmother has convinced herself, the grandfather, and now the mother, that the father was engaging in oral sex with the child, explaining the diaper rash when she was younger and her difficult behaviour as she developed.
[92] The mother, the maternal grandmother and the social worker went back to the Children’s Aid Office. While there, the grandmother continued her discussion:
A. told her that one time there was blood on her panties and on the sheets. She changed them herself. She told her grandmother one time she was in *, she went for a drive with Papa *, he put garbage bags on the windows of the car and he put the window down a bit and ‘he did it to me’ there, he told her it would be more painful next time if she told.
A. showed the maternal grandmother how Pappa * holds her hands... one behind head and one behind back as he spreads her legs apart. A. said “it hurts”
[93] On August 31, 2005, at 13:08 there was a taped interview with the mother.
She advised that on her return from her trip with her husband, her mother asked her to come right over. Her mother, herself and A. sat down. Her mother helped A. tell the story. A. whispered in her grandmother’s ear and her grandmother conveyed the story to her mother. The mother would ask if it was true and A. would respond yes.
[94] A. said she had a secret. She was scared of Papa *. He had hurt her. He pretends to like her when her mother is around but he doesn’t really, he only loves V.
[95] Papa * comes into her room, mostly when mommy is away and uses his hands to open her legs, he takes off her night dress and bites her bum. He does not say anything. She knows it is him because of his black socks. She asks her mom for a lock for her room. She asked her mother to protect her. A. asked if a man was stronger than a woman and if she could protect her from Papa *.
[96] She talked about the time in * on vacation when Papa * took the red car and went for a drive with her in the car he put garbage bags on the windows and did “that” to her.
[97] The grandmother’s statement to the police was taken on September 1, 2005, 6 days after the child’s original disclosure.
Grandmother’s statement
[98] On Saturday, August 27, 2005, the children were playing on the deck. They had a great week . While playing V. threw her sandals up in the air. One hit A. She flew into a rage (not an uncommon phenomenon for A.). The grandmother drew her inside as she tried to pinch her sister. The maternal grandmother had to physically restrain A. to avoid being scratched by the child or having the child inflict injury on herself.
[99] A. sat on “the naughty mat” as her grandmother tried to get to the bottom of this rage. The child did not want to sit on the naughty mat. The grandmother asked her repeatedly to explain why she was so angry, what was bothering her. What A. is said to have disclosed to the grandmother is contained in the police interview with the grandmother on September 1, 2005. A. said:
let my arms go and I will tell you
[100] The child told the maternal grandmother:
I want my mom and dad to stop fighting . It hurts me ..they hurt me when they fight.
[101] The child said they were fighting a lot. The grandmother continued to recount the following:
Daddy hurts me too. Daddy really really hurts me.
[102] The grandmother asked A. to demonstrate. She said A. opened her legs wide. Grandmother asked where? The child points to her front and back genital area generally in the lower portion of the body. Grandmother asks how? The grandmother demonstrates by opening her mouth and showing her teeth using an audible biting motion. She said A. said “it hurt like a knife”. The grandmother asks, “Why don’t you scream for Mum?” “Because she is upstairs sleeping or not at home.” Further questioning elicits that the father gets into her bed and hurts her. She says, “Daddy tells me not to tell, he can even hear a whisper”.
[103] The grandmother brought the grandfather into the conversation. The grandmother told him what A. said to her. He asked whether that was true and the child affirmed the disclosure. The grandfather asked the child questions and elicited this information (see police interview).
[104] After the disclosure the grandmother said the child was happy and relaxed - like a burden was lifted off her shoulders. She referred to her as a “happy camper”.
[105] Further questioning from police elicited a few more details from the grandmother. She said the child said “he bites her”; she said “I don’t want Daddy to hurt me. He comes into my room when I am sleeping”. When asked what he does after, she said “he puts my underwear on and my nighty on and goes to sleep”.
[106] The grandmother said A. told her she did not want him to hurt V. He likes her, he just “flatter” her ( Flatter de la main-caresser..on the back ) (explanation mine), “but he hurts me”. The grandmother assures A. that daddy will not hurt her anymore.
[107] The interviewer continues to probe the grandmother for information. Starting again, and well into the interview, he asks the grandmother whether there is another incident. The grandmother recalled she asked the child if he did this anywhere else besides the bedroom:
The child says he took her for a drive in * and put garbage bags on the windows, let the window down a bit so she could breath and then proceeded to do “it” to her under a sleeping bag in the car.
[108] The child is further questioned by the grandmother and A. says that there was blood on her panties and sheets. She said she changed her panties in the morning and changed the sheets herself.
[109] Throughout the interview, the grandmother expresses her doubt and confusion as to what really happened. She says “I can’t believe this happened”. She expresses on several occasions that this is unbelievable, that throughout the conversation with the child she had doubts as to whether this was true. She asked the child to verify certain information by providing details.
[110] The grandmother remembered that the child said the father held her arms behind her back with one hand, opened her legs with the other and then committed an assault.
[111] In the video interview, the grandmother is prepared to consider that the child could have been exposed to sexually explicit behaviour by someone, including, but not limited to, the father or that someone acted inappropriately with A.
[112] In this interview, the grandmother expressed the hope that someone more experienced with these matters would be able to determine what happened.
[113] The grandmother later admitted to Cpl. S., and testified that after the first conversation with A. she reassessed events that happened over the course of time, evaluated them with her new insight and concluded that the father was actively engaged in inappropriate sexual behaviour specifically, oral sex, throughout the child’s young life.
[114] In the Divorce hearing in May of 2008, and in this disposition hearing, the grandmother amended this testimony regarding the doubt she originally expressed in her first police statement, explained away any inconsistencies in the child’s statements or in any witnesses statements that the child could have injured herself on a trike. This was a possibility raised by Dr. M. who examined A. in August, 2005. The grandmother is certain that the father has engaged with his children in repeated oral sex and digital penetration.
[115] On September 2, 2005, 11:00, the mother came to the Port Hawkesbury Detachment to talk with Cpl. S.. She advised him that the previous evening, on September 1, 2005, she had a conversation with A. in which she probed her with more questions about disclosures.
[116] The mother concluded that A. misread the “blood on the bed” and although the grandmother said “Papa * did this to Mommy”, the mother said this was not true. The child likely misread a period. A. said to her mother ,“Mommy it happened, he really did it”.
[117] Cpl. S. concluded that because the mother put a lot of ideas into the child’s head, any subsequent interview of A. would be suspect.
[118] The police also interviewed the grandfather.
[119] The police ultimately concluded that the allegations were unsubstantiated and closed their file in December , 2005. The Agency closed their file on December 5, 2005.
Child Therapist (Dr. Gerrior)
[120] Before the Agency closed its file, it recommended family counselling and offered to assist the mother in locating a counsellor. She declined their assistance; preferring to seek those services privately.
[121] In the fall of 2005, the mother contacted Dr. Gerrior, a psychologist in private practice. Dr. Gerrior’s October 26, 2005, interim report is before the Court.
[122] Dr. Gerrior was aware that there were allegations of sexual abuse made against the father by the maternal grandparents and that these accusations were denied. She was aware that the Children’s Aid Society and the RCMP were unable to substantiate the claims.
[123] She met with the child and sometimes one parent or the other on 15 occasions to help with behavioural issues and parenting. She had three sessions in 2005, 9 sessions in 2006 and 3 sessions in 2007.
[124] At or around the time of V.’s birth, A. began to exhibit behavioural problems, aggression, defiance, temper tantrums, etcetera. The mother described her daughter A. as a difficult child with many sensory sensitivities and she had difficulty toilet training, which caused some difficulties during the father’s supervised visits. She exhibited problems establishing daily routines, had a history of temper tantrums and non-compliance with adult requests. She was aggressive with her mother and younger sister, V.
[125] All collateral evidence supports this information. A. used inappropriate language at home, acted out with her family on outings and refused to learn steps toward her own independence.
[126] As recommended, the father contacted a counsellor, Ms. D. L. He attended 8 sessions from September 20, 2005 to May 5, 2008. In October, 2005, Ms. L. invited the mother to attend. She did not respond to the phone messages.
[127] In late 2005, Dr. Gerrior asked the mother if the father would be able to come to therapy. The mother declined his direct involvement. She promised to relay the content of the session to the father in an effort to pass on the therapists suggestions regarding A.’s behaviour. The father was always prepared to be involved and did engage when invited as the sessions were coming to a close. He attended three sessions.
[128] No disclosures of sexual abuse were made to Dr. Gerrior. A. denied any problems with her family.
[129] Dr. Gerrior described A. as quiet and engaging, requiring considerable attention, sometimes non-compliant, throwing tantrums. Dr. Gerrior did not engage with V. She was concerned however, about the aggression between the two children.
[130] After the initial sessions, her preliminary diagnosis suggested Oppositional Defiant Disorder. While A. was a challenging child, her GAF (_Global Assessment of Functioning) score was 70,( average). In January and February of 2006, there was a noted improvement in the child's behaviour.
[131] The psychologist ruled out learning disabilities and physical problems and under Axis IV identified situational, parental conflict and separation, and parent-child problems.
[132] The mother and grandparents remained focussed on using these counselling sessions to further investigate the issue of child sexual abuse, hoping to obtain full disclosure from A. in the course of therapy.
[133] On February 7, 2006, when the grandfather brought A. and the mother to therapy session, the grandfather encouraged the mother to raise with the therapist the _body game_. The therapist felt this intrusion was an attempt to derail their progress. Dr. Gerrior resisted these efforts.
[134] Dr. Gerrior recommended that the mother and the grandmother stop questioning A. about the details of the accusations brought forward by the grandparents. Her function was to provide therapy, not to investigate.
[135] She confirmed with the mother that she, as a therapist, would not tamper with the children's memory. She explained that a child’s memory was not static. She spoke of the danger of tampering with the memory with repeated questioning. She advised that there was a real possibility of altering, recreating or contaminating the memory each time the child is questioned.
[136] Dr. Gerrior confirmed that she did not know whether anything had happened to A. She advised the parents that they may never be sure of the real events because the story was so distorted with all the adult questioning.
[137] Dr. Gerrior worked independent of the Agency. She was not influenced by the investigated process. She believed the mother was torn, not wanting to disbelieve her parents and wanting to believe her husband.
[138] Dr. Gerrior decided not to pursue play therapy. She did not see trauma associated with the abuse alleged.
[139] She confirmed there was no disclosure to her and no sign of anxiety, no panic, no hyper-vigilance. She noted that when she tested A. to see what she would do in the event that she was approached by someone inappropriately, A. voluntarily advised her would contact her mom or her dad. This showed trust in both parents.
[140] Dr. Gerrior became involved with the family again on July 17, 2007. She was advised by child protection there was another accusation. The mother contacted her to set up an appointment and, in the course of that appointment, the mother admitted that the children enjoyed spending time with their father.
[141] She last saw the family September 12, 2007. She concluded that there was no indication of sexual abuse and she saw no signs that would convince her that anything had happened.
[142] Dr. Gerrior testified in 2009. She was very concerned with how little things had changed in the family dynamic. The parents had not made progress. She expressed serious concern about the well being of the children and about the kind of damage being done to these children.
[143] The therapist was concerned that the continued supervision of the father’s contact with the children and the discussions going on between the mother and the children, were harmful to the children’s perception of their father.
[144] The children were being set up to believe that there was a possibility of harm when with the father and thus, a need to protect them. There were examples of reinforcement of this notion in comments made to the children by the mother and, on occasion, by one of the access supervisors. This commentary undermines the father's authority.
[145] She concluded that the children were not being protected from the conflict. She again cautioned against further questions about what happened in the past and advised the focus should be on parenting issues.
[146] She was concerned that what was happening to the children was being ignored because of the sexual abuse allegations. She advised that therapy with the children would be destabilized if the parents did not participate and cooperate.
[147] It was her belief the children had been emotionally harmed.
Post 2005 allegations - reconciliation
[148] The father initially spent a few nights back in the home in October, moving back into the home in November, 2005. This was consensual. The father told the mother that if she was not agreeable to reconciliation, he intended to separate and he would be asking for joint custody of the children.
[149] I am satisfied the mother understood that, given the unproven allegations, a separation might result in a joint custody order given the father’s substantial connection and his role in their upbringing. Her job took her away from the home more often than his.
[150] In this proceeding, she testified she reconciled because if he lived with her, she could protect the children at all times. I do not believe that this was the reason she reconciled with the father. She expressed doubts as to his guilt to Dr. Gerrior and was clearly confused about her parents’ ongoing belief.
[151] This mother indicates she was vigilant with the care of the children in all respects. There were times over the ensuing years, between November 2005 and June 2007, when the father was alone with the children as their primary caretaker. The evidence does not support that she would intentionally leave them in any person’s care if she believed they were at risk.
[152] It is clear to me the mother had difficulty accepting or believing the father was culpable and that she did not wholly believe the allegations.
[153] It is more probable that she was concerned she may lose her primary parent status or, at the very minimum, have to enter into a joint custody situation with the father. I conclude she was not ready to end the relationship and wanted to reconcile with the father.
Second Series of Statements
[154] During the week of April 19, 2007, the children were visiting their maternal grandparents while the father was home with the children. The mother was away at a meeting. The children were shortly to be turned over to the father’s care.
[155] During her time with the children, the grandmother advised she had a number of discussions with A. and V. during which she advises they made further allegations that their father was sexually abusing them.
[156] On April 19, 2007, the grandfather called the * Detachment of the RCMP . Cst. A. attended the maternal grandparents home and spoke with them.
[157] The grandmother gave him her written recollections of conversations with the children from March 31 to April 18, 2007. She advised that the day before, as she was driving with A, that A made disclosures of sexual interference such as:
...daddy was playing with me on my bed , was playing in my bum with his fingers, daddy signed a contract with me that he would never do it again...
According to the grandmother, these allegations happened one month previously.
[158] The grandmother advised the court that she reported these allegations to her daughter when they were told to her. The mother admits that the grandmother told her she remained concerned about the father due to new statements by the children but she did not discuss particulars with her nor did she ask about these statements or report to police or child protection.
[159] The police contacted child protection. Together, they contacted the mother in Halifax to advise her of the newest allegations. The mother appeared reluctant to return that evening, as her plan was to return the following day.
[160] The police questioned the mother, looking for enough information regarding possible domestic abuse in order to have grounds to remove the father from his position of care in the matrimonial home.
[161] The police notes indicate the mother advised that she was once pushed away and pinned against the wall and that it was not the first time she was roughed up. The mother advised she was roughed up on April 17, 2007.
[162] The police obtained a warrant of arrest for the father based on allegations of domestic violence, not sexual abuse. Two RCMP officers and two social workers from child protection attended at his home to arrest him and remove him from the home. He was home putting the children to bed.
[163] He was informed of the newest developments, arrested and placed in the cells overnight. He was angry but cooperated throughout. He made appropriate arrangements to have someone come in to care for the children, pending the mother’s return. The children were not aware of the police presence; he kept any information from the children as to the reason for his departure.
[164] The police and the Children’s Aid Society noted that the children were upstairs calling to him to return to their bedroom to complete the bedtime ritual. The RCMP officers and child protection workers did not note any evidence of fear in the children. Quite the contrary.
[165] The father was held in cells overnight and released on an undertaking not to contact the children except for visitation as arranged. The agency advised supervised access was in order. No charges were laid.
[166] This approach by the police, if an accurate account, contradicts the mother’s testimony and suspicions that the police were so influenced by the polygraph results in 2005, that they failed to properly investigate the series of “disclosures” made in 2007 and 2008.
[167] The Agency was told by the grandparents that both children had disclosed some sexual touching where the father fingered both children in their vagina and bum area.
[168] On April 20, 2007, in the taped interview with the maternal grandmother, she referred to her written recollection as an aid. These notes indicate as follows:
On March 31/2007 7:15 pm Sat night as she was putting V. to bed she said “I want to tell you a secret Nanny but don’t tell anybody. When Mom and A. were in school in the day daddy put his finger up her bottom, Not my bum Nan, pointing to her rectum. It really hurt, “She cried” I don’t want to tell mom I don’t want to tell anybody.” She said she is scared because daddy is mean, maybe he won’t do it again.
[169] On April 18, V. said to her:
Nanny please don’t tell what I told you ..what Daddy did to me ..maybe you could take Daddy to the doctor;
I don’t want to stay with Daddy cause he is mean to me.;
When I said to V. she should tell someone especially mom, she said I told mom, “I think she lets him do it.”;
On April 18, 2007- the mother was going to Halifax, During breakfast ..V said, “Daddy chocked me yesterday. He tried to get my shoulder but grabbed my PJ in front and hurt the back of my neck and shoulder..because I wanted Mommy he was mad.”;
V. said “he is mean to A. punishes her a lot and makes her cry.”
[170] As to April 18, she continued:
Re: A: She asked for a rosary or a medal to protect her. ... “I said is Daddy hurting you.” She said, “ Yah but he promised he would stop he even signed a contract with me on paper promising me he wouldn’t do it again...” I said “what did he do.” .when she got off the bus one day he was home alone. “ Daddy made me slap his bum front and back .” I said “ was he naked.” She said “ yes and on my bed Nan.” She said “will you come and wash my sheets Nan...”stuff came out that smells like your bum, it smelled awful and a little pee. Oh gross it smelled awful. It was on my sheets and I had to sleep in it.” When asked whether she told mommy she said , “no because mommy said I was a liar last time and the police didn’t believe me and because when Daddy did that he took me downstairs and showed me his gun..”.she said “ I am going to get the gun and kill Daddy if he does this to me again.” She said. “ Daddy acts like nothing happened in front of mom talking and smiling when he picked her up after he made the mess in my bed.”
[171] When asked not to refer to the notes, the maternal grandmother became more confused. The police did not hide their concern about credibility issues relating to the series of statements.
[172] On April 20, 2007, 9:15 a joint interview of both children was conducted by a different senior social worker, Michael Lawrence, and Cst. H., a female police officer.
[173] A. told the two interviewers she didn’t like the fact that (her father) might be getting a job on a * and would have to be away for two weeks. She liked having him around because he gave her ice cream and plays games with them, including hide and seek. The only unusual game that was brought up was that sometimes her father would throw a bucket of slugs on her and that is why she would hide under the bed.
[174] After approximately 45 minutes, A. was asked if anything was bothering her and she replied, “no”. The interview was concluded with A. making no disclosures despite ample opportunity to do so.
[175] Within a few minutes of starting the interview, V. advised she was done talking. When asked who would you tell if something was bothering you, she replied without hesitation, her mom, her dad or her sister.
[176] The interviewers decided to try to speak with A. again. During the second meeting with A., they asked “ Has anyone ever touched you in your private parts?” She responded “ No”.
[177] The police decided not to pursue charges or further investigation.
Reconciliation
[178] By April 28, 2007, the father was back in the home.
[179] On April 20, 2007, two agency workers interviewed the mother at her home. During this interview, the mother advised the workers that there had been no violence in her marriage, although she accused the father of controlling behaviour, of blocking her when she was trying to bring the children juice at the table and of not allowing the children to drink juice until their supper was finished. She admitted spilling juice over him. She advised she was not afraid of him.
[180] On April 20, 2007, the mother advised the police she was surprised they arrested D.S. She denies that this was her intention.
[181] In clarifying, she explained the ‘pushing incident’ between her and the father, saying he prevented her from getting to the children by placing himself in between her and the children, his arms crossed against his chest.
[182] Some three years later, the mother recants her statement that there was no violence in the relationship. She advises that the father was physically and emotionally abusive. She did admit that her parents thought she was an abused woman.
[183] In the midst of a second series of allegations, the mother continued with her plans to go on a school trip to * with her students, leaving the children with the father. She was questioned about the wisdom of this by the therapist and the Children’s Aid Society. She asked the paternal grandparents to visit with the father during her absence.
CAS Interview with maternal grandparents
[184] Child protection interviewed the maternal grandparents. The grandparents were concerned because their contact with the children had been reduced since the father was unemployed. They advised that the father made arrangements for the youngest child to go to daycare rather than spend time at the grandparents.
[185] The worker considered them concerned grandparents. They raised many instances with the workers. They said A. informed them a year earlier that her father hates her and hits her and kicks her in the legs. They saw the father grab A. by her clothing and raise her to the ceiling. They advise they saw him twist A.’s arm. They acknowledged that their daughter stays with the father because she knows he will get unsupervised access to the children if they separate. They said A. told them she informed Dr. Gerrior. This was contradicted by Dr. Gerrior evidence that there were no disclosures during her therapeutic intervention with the children.
[186] There are numerous discrepancies contained in the maternal grandparents testimony, some of which may be explained due to the passage of time, frailties with memory and some for which no explanation has been offered. I mention only a few.
[187] In her July, 2007, testimony the maternal grandmother told the court in her direct examination that the child said her father puts his hand over my mouth. That is not consistent with the police statement nor the child’s statement in 2005.
[188] The grandmother said in her July 2007 testimony that she asked the child about any other incidents at which time the child disclosed the * incident. During the grandfather’s interview with the police and in his July 2007 testimony he confirmed he asked the child about any abuse committed by the father elsewhere and she said in * .
[189] In the grandmothers May 16, 2008, testimony she was asked whether A. actually said in words that D.S. put his fingers in her rectum. She answered:
No, she didn’t tell me in words, she told me in...in...right here, finger up the rectum...pointed ,quickly, there and there.
Q. And you assumed it was a finger up the rectum?
A. Well, if you’re putting a finger to your rectum and he’s hurting you up there, as an adult I know what ah, a finger up your rectum would be and, ah, what putting your mouth to somebody’s vagina would be, that’s oral sex as an adult.
[190] The grandparents testified that Michael Lawrence informed them in an interview that the Agency believed the father was guilty but they could not obtain sufficient evidence to prove it. They also advised that Mr. Lawrence testified that he believed the child’s statements.
[191] By the time, this hearing was in process, Mr. Lawrence was no longer employed with the local Agency. On redirect examination, he denied both that he informed the maternal grandparents that the Agency had drawn conclusions about the father’s guilt and that he would have conveyed his opinion regarding the father’s guilt or innocence.
Separation
[192] On June 24, 2007, the mother called the police to the house because of domestic discord. Both parents were arguing. No violence was noted and no charges were laid. This incident was the final trigger precipitating their separation. It also triggered the mother’s emergency application for custody and supervised access. Their marital discord was spilling over into the community and the school.
Emergency Interim Custody Application - June 27, 2007
[193] The mother made an emergency interim application before on June 29,2007, seeking sole custody with supervised access. The father was unable to attend the hearing due to his two week on, two week off employment at * . The mother was aware at the time of the hearing that the father was away and unable to attend.
[194] An Interim Emergency Order was granted based on the mother’s affidavit alleging child abuse and domestic violence. The issues of interim custody, access and exclusive possession of the matrimonial home were adjourned to July 24, 2007, to allow the father to appear and to complete the interim hearing.
[195] In retrospect, the degree of urgency set out in the affidavit regarding the second set of disclosures did not appear to be present when the mother was first informed of the second set of statements. She informed the agency workers she did not want D.S. to be arrested. She also had to be persuaded to return early from her meetings.
[196] The Court was informed by the mother in her affidavit, dated June 27, 2007, that the father was refusing to leave the home. She testified that the child had disclosed abuse, that she was interviewed and disclosed abuse in the interview with police and further:
That I am not sure about all of the details, but I was under the impression based on conversations, that because the investigators used leading questions, A.’s testimony was not reliable.
[197] In retrospect, it is difficult to understand why she resumed co-habitation for over a year and a half after the first disclosures. It is more likely that the mother simply did not believe the father did abuse the children and was concerned about what a custody agreement might look like upon separation.
[198] She also advised the Court that the police suggested she leave with the children and stay at her parents. She further advised that child protection suggested that they have a forensic psychiatric nurse involved. This created the impression that child welfare and the police supported her actions.
[199] The police deny they told her to leave and take the children. The police did not have grounds to suggest the children be removed. They advised they told the couple they needed a cool down period. Leaving was the mother’s choice.
[200] The Agency actually advised the parents to cooperate with a Psychological Assessment to assist in determining risk.
[201] At the time of the emergency application, the mother had finished the course of family therapy suggested by child protection and there were no disclosures. The mother knew the assessment being conducted by a forensic psychologist was for both parents.
[202] She and the father drove together to the assessors office. They had been living together since October, 2005. They had travelled twice together, out of country as a family, and between 2005 and these new allegations, had many happy times together. The father had been alone with the children while she worked and attended meetings. Her suggestion that she rarely left the home created a false impression.
[203] The Agency contacted the assessor, Ms. Valerie Rule. She was asked to conduct a Psychological Assessment on both parents in order to determine the risk of sexual and/or emotional harm to the children.
[204] Both parents consented to this assessment. Both were represented by counsel.
Other police involvement
[205] On July 8, 2007, Cpl. B. spoke with the Agency and advised that he had been called twice by the maternal grandmother who asked him to remove a collection of knives, including a switch blade, from her daughter’s home. She advised him that the father was dangerous.
[206] Cpl. B. confirmed the police went to the home collected the knives. They did not find the collection unusual. No switch blade was found. One sword and the knives, including a fishing knife, were removed as requested. No gun was found.
[207] He advised the agency that they had no evidence to support that the father was dangerous, then or currently. The father was free to collect the knives as he wished.
Completion of the Interim Hearing - July 24, 2007
[208] The Interim Hearing in * , Nova Scotia, resulted in a court ordered shared parenting arrangement. When the father was not working, the children were to be in his care from 9:00 am to 9:00 pm for the two week period.
[209] The father had been significantly involved with parenting the children due to his intermittent employment. The mother, a teacher, was also active in * duties, had many duties aside from her teaching that took her outside the home. She was also engaged in studies to complete her masters.
[210] While the father did not agree supervision was necessary, pending assessment, he agreed to have his parents or available friends and family supervise his parenting time with his children.
[211] His parents, either individually or together, came faithfully from * to stay in his household while he cared for the children. Over the course of the summer up to the commencement of the child protection application in May, 2008, this course of shared parenting continued.
The Parental Assessment - October 2007
[212] Ms. Rule is a registered clinical and forensic psychologist with the Nova Scotia Board of Examiners in Psychology. She graduated in 1988 with her Masters of Arts, Psychology from the Adler Institute of Professional Psychology.
[213] She has been previously qualified to give opinion evidence in Nova Scotia Supreme and Family Courts. She has completed 599 assessments to September, 2008, of which 72 (Adult) and 23 (adolescent) relate to sex offender risk. Her continuing education credits include many references to sex offender programs.
[214] All three Counsel accepted her as an expert assessor in child psychology, children’s needs assessment and child sexual abuse, as well as family and child therapeutic intervention.
[215] The Agency had consulted Ms. Rule earlier in 2005 by telephone after the joint interview. Her initial advice was there was a fifty percent chance the child may have been abused. She agreed that what she was told the child said was graphic. Currently, after reviewing the interview and completing the assessment , she has amended her opinion.
[216] Ms. Rule testified that there were many possible hypotheses for the child’s statement. She concluded the child’s police statement in August, 2005, was not a disclosure of sexual abuse.
[217] She believes the statements have been contaminated. She suggests that there may or may not have been an assault; the statement may be fantasy; may have been planted intentionally or unintentionally; may have been suggested or may have been misinterpreted.
[218] She testified it is not uncommon for a child to name another person as perpetrator, other than the actual person responsible.
[219] She advised she was not responsible to determine whether abuse happened. Her task was to assess the parents to determine whether they were a risk to the children.
[220] Her 86 page report has been thoroughly reviewed by all parties and the Court.
[221] Ms Rule and her office staff spent approximately 31.5 hours involved in clinical interviewing and psychometric testing of the parents, clinical interviewing of the children, family observation, telephone conferences and meeting with collateral witnesses whose names were put forward by both parents. She spent approximately 2.5 hours in telephone conversation with the mother and 1.5 hours in additional telephone conversation with the father.
[222] Ms. Rule interviewed both paternal and maternal grandparents; received a written response by Dr. Patricia Gerrior; Ms. D. L., a counsellor who had seen D.S.; along with other collateral witnesses provided by both parents. She had access to the child protection file but she did not have access to the police file. She had access to the police/child interviews
[223] The mother sought unsuccessfully to have her assessment excluded.
[224] The mother alleges that the assessor was unduly influenced by the police and Agency conclusions and their reliance on the results of the polygraph.
The Assessor’s Conclusion
[225] The assessor recommended the following:
1. It is recommended that the agency close the file at intake as there are no evident child protection concerns.
2. It is recommended that S.S. and D.S. attend mediation services in an effort to develop a method of healthy communication regarding their children in an effort to co-parent A. and V.
3. It is recommended that S.S. and D.S. participate in the family education program offered by Family Court for parents who are separated and/or divorced to help them understand how A. and V. may be processing the events of the past two years. This program was previously titled _Children Caught in the Middle_ and is a free service. They may contact the courthouse in Port Hawkesbury for more information (902) 625-4012.
4. It is recommended that S.S. and D.S. contact a professional who works with children with similar difficulties if they continue to be concerned about the girls' behaviour or emotional status. This is a free service through their local mental health department, or could be a fee for service paid through either S.S. or D.S.’s employee assistance programs.
5. It is recommended that should further allegations be brought to the attention of the Agency, that these be processed by the normal protocol.
[226] Ms. Rule raised four concerns that were the foundation for her recommendations. They are as follows, as noted on page 67 of her report:
1. S. S. and D. S.'s approach to the assessment and the resulting validity of their data.
2. The historical relationship between S. S. and D. S., in particular the family of origin differences and their personality differences and how this impacts on the current family problems.
3. The sexual abuse allegations and S.S’s additional concerns regarding D.S.'s potential for violence.
4.The dynamic between S.S.'s parents and D.S. and how this contributes to the family problems, in particular, the children's responses to the chronic acrimony.
[227] Prior to testifying in this first disposition hearing, the assessor had received all access reports and subsequent documentation concerning the children. She expressed her concern about the welfare of the children and recommended the children be assessed independently, to assess the state of their emotional well being and to make recommendations to the local mental health providers as to appropriate therapeutic intervention.
[228] This assessment has been prepared by Dr. Hartley and her report is dated April 7, 2009. The parties have not had a chance to address the contents of that report in this proceeding.
Results of Testing
[229] The assessor determined that the reliability of both the mother and father’s capacity to report their situation correctly was considered to be within normal range.
[230] Ms. Rule concluded that S.S was honest and straightforward throughout the interview and testing process, and that she is held to a high moral standard given her family background. Ms. Rule gave little weight to the fake good response style in S.S's approach to the assessment. She concluded it:
may have resulted in a different and perhaps more naive perception of the world and people's behaviours when compared to the individuals that made up the standardized samples in the test instruments. It is the assessor's opinion, based on clinical observations, clinical interview data, and collateral data that Ms. S.S. is influenced by her parents and that this may have also skewed her interview data.
[231] The father presented in a straightforward and open manner, supporting her impression that he did not attempt to 'fake good' on the assessment.
[232] After carefully reviewing the historical and cultural differences between the parents, Ms. Rule concluded that there are family of origin and lifestyle differences.
[233] I have had an opportunity to view and hear examination and cross examination of both the paternal and the maternal grandparents. I concur absolutely in the conclusion that there are significant geographical and cultural differences between their families of origin.
[234] Neither parent had mental health history or have previously received mental health intervention. The assessor found that both were psychologically stable, have good cognitive ability and, for the most part, are described by others in positive terms. She found no historical family, social, behavioural or psychological concerns with either parent with the exception of some maladaptive personality traits.
[235] She concluded that the maladaptive personality traits in both parties created difficulties in the marriage which have affected the parents' ability to problem solve and communicate well in their relationship. It is clear that they are unable to resolve their differences.
[236] Ms. Rule concluded:
... there is frequently difficulty combining these lifestyles into a model that suits them both. A successful combination requires a great deal of compromise by both parties. If this does not occur, the result is often marital discord. This dynamic becomes more prevalent when children are born, as each parent feels their lifestyle is the most appropriate for the children. This appears to be the case with (S.S.and D.S)
[237] The mother is described by witnesses as warm and generous, giving and kind-hearted, fun-loving and a good mother. She is respected in her community.
[238] The father is described by his parents as a child with a lot of friends, did well academically, had no behaviour problems as a teenager, loved sports, swam, played football, was a lifeguard, swimming instructor and took Tae Kwon Do. He was not in legal trouble as an adolescent. He is described by his parents as a wonderful artist, with a head full of ideas, ready to jump into life.
[239] The father is an outsider within the mother’s community. Other than his parents, he had no family or friends testify.
[240] During the course of the investigation, the police, the Children’s Aid Society and the Assessor concluded the father was not a risk to the children.
[241] The access facilitators, who watched over the father for in excess of a year, are not his friends or associates, nor profess to express any opinion on whether he is a likeable individual. They drew their conclusions based on what they saw and the information they had before them of their observations of his conduct. They report no concerns of risk to the children by him.
[242] In her assessment report, at page 46, Ms. Rule wrote:
the level of communication between D.S. and the children was high quality. The children are articulate and the conversation was two way, with many questions and responses about the activity they were participating in at the time.
The quality of the children’s play was exemplary. D.S. appeared to enjoy his play with the children as evidenced by spontaneous laughing and participating fully in the play.
Dynamics between S. S's parents and D.S.
[243] There is a complete breakdown in relationship between the maternal grandparents and the father. They clearly don’t like him and appear to be convinced the children have been abused by the father. The mother is significantly influenced by her parents.
[244] The assessor concludes that the relationship between the maternal grandparents and the parents is intrusive, lacking respect for proper boundaries. This relationship is part of the cause of the conflict between the parents and their inability to co-parent successfully.
[245] During the original assessment, the Assessor concluded that both parents have the necessary cognitive ability and are psychologically stable enough to co-parent their children in a manner that is healthy and positive.
[246] They both love their children and there is a healthy attachment between each parent and child. She advised they must endeavour to rise above their personal differences in an effort to provide the children with a stable and happy family life.
[247] The assessor identified that there was a concern that the ongoing conflict in the family would create emotional fall-out for both children and in particular, for A.
[248] The assessor concluded:
....there were no expressions verbally or behaviourally that would indicate that there was anything more than a loving, warm attachment between the children and their father....
[249] The assessor is as concerned as Dr. Gerrior regarding the emotional impact that the events of the past two years have had on these little girls.
[250] Late in the assessment process it became clear to the parties that the Assessor intended to recommend that the father’s supervised access be lifted.
Sketches
[251] The mother sent additional material to the Assessor’s attention. This included a collection of his sketches, a few of which contained sexual content . She discovered these documents when cleaning out her husbands personal belongings. The Court has copies of these sketches.
[252] The originals were not produced although they had been in the mother’s control and possession. All counsel agreed to copies of these sketches being filed since they formed part of the assessment. They were submitted by the mother to create an impression that the father was a sexual deviant.
[253] The father spoke to these drawings credibly. He advised that they were part of a much more extensive collection that included non sexual drawings not selected by the mother for review.
[254] The mother’s counsel argues that the selection of sketches suggests the father has a propensity to violence, is gratified by the sexual content , nudity and sexually explicit material and thus was of a personality that could be associated by implication to perversion such as child molestation, i.e pedophilia.
[255] The first group of drawings could be best described as representative of a medieval style, depicting warriors, guns, swords etcetera. The second set, the Assessor grouped into a nudity category, images of female bodies interwoven, sometimes in sexual poses. These, the Assessor noted, were not unusual drawings for an artist, particularly since they were crafted, for the most part, when the father was in his late teens.
[256] The third category contained sexually explicit material including depictions of oral sex (some of which were not the father’s work). The kind of inference counsel asks the Court to draw is of questionable validity.
[257] The assessor sought the opinion of two outside experts about this third category of drawings due, not so much to their content but as to the concerns presented by the mother and grandparents. She dismissed the remainder as not relevant to her enquiries.
[258] The assessor concluded there was no scientific research that could establish a connection between the drawings and propensity to child sexual abuse. I dismiss the suggestion of counsel in this regard as having no weight.
[259] The mother and maternal grandparents also asked the assessor to investigate a possible web site with pictures of children. She found nothing of concern. These latter two concerns delayed the completion of the assessors report.
Ongoing Referrals
[260] On the January 16, 2008, the Agency received a referral from the mother indicating that A. had been referred by her family doctor to St. Martha’s Hospital because the child had developed tics. The doctor thought that it might be due to stress.
[261] The child disclosed to the mother’s brother, having been hurt, kicked and pushed by the father. The mother’s brother confirmed the disclosure, stating that both children told him they were hurt by their father.
[262] At this stage of the children’s lives, in light of the numerous police, child protection, medical interventions and interviews, it is not unreasonable that the children believe they have been hurt. That they continue to make these disclosures does not speak to the reliability or credibility of the disclosures.
[263] The mother advised the Agency that the paternal grandmother, while supervising the father’s access, saw him hurt A. and told him to stop. In another incident, she alleged that two friends of D.S.’s were present and did nothing. The paternal grandmother contradicted this testimony.
[264] The Agency decided that the allegations required further investigation and delayed closing their file. The Agency worker contacted the mother and was informed about other concerns, including a disclosure by A. that her father and his friend had been watching adult movies during a supervised access visit.
[265] The children were interviewed at the school on January 17, 2008, regarding these new disclosures. Neither child confirmed being harmed by their father, nor made any disclosure to the Agency workers.
[266] On January 24, 2008, after their investigation, the agency closed its file.
[267] On February 13, 2008, the mother contacted the agency worker to advise of new referral information. That information indicated that the child, V. stated to her mother, on the February 10, 2008, that “Daddy put his finger in my bum” and “this happened when I was four”. The child, V., was alleged to have disclosed to her mother that she did not want to go to her father’s home because “ he puts his fingers in my bum”.
[268] The Agency contacted an intake worker with Child and Adolescent Services at St. Martha’s Hospital. She confirmed that the mother had reported to her that the child V. stated “Daddy put his finger in my bum”. The mother told the intake worker that the child said this on the past weekend and again at suppertime on Tuesday and Wednesday nights.
[269] A decision was made on the February 14, 2008, not to continue the investigation.
[270] On May 14, 2008, the mother laid a complaint of assault, alleging the father assaulted her along with allegations regarding an incident at the Parish Hall in * between February and April, 2008.
[271] The police interviewed the witnesses provided by the grandparents. The incident was not corroborated. The police declined to lay charges against the father.
[272] The mother pursued a private prosecution. The matter was heard and dismissed.
[273] On October 16, 2008, the maternal grandfather also made an application for a Peace Bond alleging that on July 14, 2008, the defendant father confined, taunted, chased him pointing an object at him which he thought was a gun. This was heard before another Judge and dismissed.
[274] The domestic discord between the parents and the maternal grandparents continued to spill over into their local church and school community.
The Third Series of Statements
[275] During the actual Divorce hearing, on May 12, 2008, the grandmother took A. to Dr. P. S.’s (also known as Dr.S. ) office for an ear ache. While there, the maternal grandmother advised the doctor that A. told her in the car, on the way to the appointment, about further sexual and physical abuse by her father. This abuse was said to have occurred sometime in January and February, 2008.
[276] Dr. S.’s affidavit of June 26, 2008, tendered by the mother’s counsel, was excluded when the doctor was not made available for cross examination. The doctors notes are contained in the Agency recordings. They indicate the following:
Also complained of chest pain she (unclear who) said she had for three months. Said her father had hit her on the chest several times in January 2008 when she was outside( father did not help her to get up)and she had fallen in the snow. was out of breath. When she woke up nobody was there .She got up and went into the house but did not tell anyone because there were visitors there( and also on occasion on the back and legs) Also told me her father was abusing her by putting her fingers in her vagina and rectum reference to her notes written May 16, 2008, (5 full days after disclosure, appointment lasted 1 hour).
Child appeared genuinely afraid
[277] The doctors notes are unclear as to who told her A., at times, has difficulty running, pants and feels tired.
[278] Dr. S. referred to another incident told to the grandmother:
“When she was sick with the flu her father brought her orange juice made her drink it and tried to remove her panties and put her fingers in her bum and vagina and one day at school she met her sister in the washroom and V. told her that D.S. was doing the same thing to her (touching her private parts)
[279] She told Dr. S. she was scared of her father and if she told anyone, he would hurt her more.
[280] Dr. S. asked her if she got hit again by her father and she said 4-5 times and on one occasion in the car when her paternal grandfather was present.
[281] A. said that she did not tell the police about the abuse because her father was present. She thinks the police and the Children’s Aid Society are (her father’s) friends and he would hurt her more.
[282] Dr. S. reported she did not find anything wrong with A. regarding her chest pains. At the grandmother’s insistence, that evening Dr. S. referred the child to emergency department at * to see the on call pediatrician, Dr. O.A..
[283] The referral note indicated the complaint was breathlessness, chest pain and weakness in running. The referral was for chest pain/sexual abuse.
[284] The grandmother took the child to the emergency department that evening. A.’s chest x-ray and EKG were completed. Although the grandmother had reported that her husband, a retired *, had taken A.’s pulse and it was elevated, in the emergency room A.’s blood pressure and pulse were normal. All tests were normal.
[285] Dr O. A. gave evidence and was cross examined at length. When Dr. S. contacted her by phone, she was informed that the child was stable and showing no signs of distress.
[286] Dr O. A. observed the child, as did an emergency room doctor. There was no evidence of healed fracture, the child appeared relaxed and happy. She observed no signs of distress, child had good colour, no signs of respiratory distress, or fast breathing.
[287] Having reviewed the results, she discussed with the grandmother that once organic causes were ruled out, they would have to look at anxiety and the reasons behind possible anxiety.
[288] In the emergency department, she limited the grandmother’s attempt to review the history of sexual abuse disclosures and stopped any discussion with the child present.
[289] The grandmother, in her testimony, suggested that it was Dr O. A. who questioned her about the history and she who suggested the mother be called.
[290] Where there is a contradiction between the testimony of the pediatrician and the maternal grandmother, I adopt as accurate the testimony of the doctor. The doctor is in the business of attending and reporting at emergencies, she is objective and less likely to be impacted by the emotional aspect of the child’s disclosures. In addition, the grandmother indicated on more than one occasion that her memory was impaired due to her health.
[291] Upon completing an examination, the specialist determined that there was no immediate urgency to the child’s situation. She informed the grandmother she wanted the child’s guardian to make an appointment with her office to spend more time sorting through the issues.
[292] On May 12 and 13, 2008, Dr. S. called the Children’s Aid Society to report the information she received from child and grandmother. She advised that, in her opinion, the upcoming access visit between the father and the children should be stopped. Dr. S. was not the family physician nor did she have prior knowledge of the history of this file, the allegations or the family dynamics.
[293] The mother called Dr. S. on May 20, 2008. She was anxious and she sought a referral to the IWK Health Centre to acquire a second independent and objective opinion. Dr. S. saw no signs of abuse. However, she was sympathetic to the mother’s anxiety and made a referral to the Children’s Hospital to try to get her a second opinion. The doctor faxed a referral for A. to the IWK Health Centre to get a second opinion on her heart and to see a child psychologist for complaint of physical and sexual abuse.
[294] The mother called the after hours child protection Emergency Duty Line in Halifax and advised of the recent disclosures. The mother taped the second conversation with the Duty Line. She was unable to find the first conversation for review by the court.
[295] In this conversation, the mother conveys to the dispatcher that there are recent disclosures that the father punched the child in the chest in January 2008. She also gives the dispatcher information about the 2005 disclosures but does not give a full picture, that these have been investigated and no action taken. Neither does she indicate that the evidence of this new disclosure was before the Court that day or that the father’s access was supervised.
[296] She is told to contact the Agency during office hours (which had been done earlier), and meanwhile to keep the children safe. She argues this was an endorsement of her plan of action to go to Halifax and seek intervention from the child abuse team at the IWK Health Centre. She advised that the emergency line duty worker told her to leave for the weekend. In truth, the mother had already planned a weekend in Halifax where she would be attending meetings. My review of the tape does not confirm she was advised to leave the area as she testified in her June 2008 testimony.
[297] She also consulted with the police and felt she obtained their implicit understanding she could remove the children to Halifax to obtain a second opinion. She advises that she was told by the police not to disclose her whereabouts.
[298] Cpl. B. testified he was trying to help the mother arrange an independent interview in Halifax until he was alerted by his superiors that this contravened the provincial protocol.
[299] The mother removed the children from the jurisdiction. She refused to tell police and agency personnel where she and the children were residing. She advised the father by e-mail that she would stop all further supervised access visits until the newest disclosures were examined. She remained in the Halifax Regional Municipality area for approximately two weeks.
[300] When questioned, the maternal grandmother evaded answering questions as to whether she accompanied the mother to Halifax. She advised she had no memory of that event. Later, she amended her testimony and advised she did attend and stay with her daughter and children while they were in Halifax. The grandfather was, at first, evasive regarding his participation and reluctantly admitted going with the mother to Halifax as well.
[301] The Agency appeared unaware that the police knew of the mother’s intentions. When it was clear they needed to contact the mother, the police instructed the Agency to contact the mother’s brother and they would likely find the mother.
[302] In the interim, on May 16, 2008, Dr. S. spoke to the RCMP and social workers separately and on May 17, 2008, she met with a social worker and two RCMP officers. They met to clear up some inconsistencies in the doctor’s reports to them.
[303] Dr. S. first reported the father had tried to put his penis in the child’s rectal and vaginal area and clarified later for them A. did not say the father put his penis in the child’s bum.
[304] The child and the grandmother were in the room at the time of the disclosures. Language was a barrier. Dr. S. had difficulty conveying the precise description of the allegations and which part of the disclosure came from the maternal grandmother and the child.
[305] On Saturday, the 17th of May, 2008, the father alerted the Agency’s Emergency Duty Line that the mother was refusing to make the children available for access; that the mother and children were not home and he continued to be concerned about emotional harm to the children and possible brainwashing that may occur.
[306] The father contacted the RCMP for assistance to attempt to exercise access as specified by court order.
[307] On Tuesday, May 20, 2008, the mother called the Emergency Duty Line, informing them that she was at the IWK Health Centre in Halifax waiting to see a doctor. She would not release information about where she was staying to police or the Agency.
[308] On May 20, 2008, the father met with the agency worker to inform them that he was unable to contact the children, they were not in school and the mother was not taking calls.
[309] On May 20, 2008, the RCMP informed the Agency that they had spoken with the mother. She refused to disclose where she was. The Agency worker attempted to locate her by phone and was advised she was not there. The worker contacted the IWK Health Centre and was told that the mother and child had been there, the child had been examined by a doctor, a disclosure had been made and the doctor noted only some bruising on the child’s leg and no evidence of chest pain or difficulty in walking.
[310] On May 20, 2008, the Agency received a phone call from the mother’s brother, J.S., giving a child abuse report, indicating A. disclosed to him that she had been struck in the chest by her father and that he had stuck her fingers in her vagina and bum, the child had cried and asked why the police won’t help her.
[311] On May 21 and 22, 2008, contact was made between the mother and the Agency. The mother continued to keep her location a secret.
[312] The children had not been returned by 22nd of May, 2008, to return to their regular school schedule.
The Third Joint Interview - June 3, 2008
[313] To address the mother’s concerns about bias, Cpl. B. made arrangements to have a qualified member from another detachment conduct the interview.
[314] The Agency arranged to have a joint agency and RCMP investigative interview for May 23, 2008, at 2:00 p.m. with Kerstin Schauss, a member of the child protection team, and Cst. R. Both were women. Both interviewers were not previously involved in past interviews although the social worker had knowledge of the file. She was largely silent during the interview.
[315] The RCMP member was briefed on the recent disclosures in 2008 by Cpl. B. and reviewed previous child protection referral information. She did not have access to the prior tapes. She did not have a discussion with Cpl. B. regarding the polygraph and does not recall knowing the results.
[316] Ms. Schauss had some knowledge, having been at some meetings between February 14, 2008, and June 3, 2008. The mother was dissatisfied with this selection. She sought someone who had no prior knowledge of the file at all. The mother was concerned that the worker and the police would approach the interview with a bias in favour of the father. There is no evidence to support actual bias in the interview.
[317] The Agency advised the mother on May 22, 2008, to have the children returned to the jurisdiction for purposes of the joint investigative interview.
[318] On May 23, 2008, the mother phoned the Agency, leaving a message indicating that the children would not be interviewed on that date.
[319] Due to the escalating conflict between the parents and the concern for the emotional welfare of the children, a Child Protection application was initiated.
[320] The Agency concluded that the children were at substantial risk of emotional harm. The harm referred to the conduct of the mother and her parents by taking the children out of the school and withholding them from supervised access with their father; the failure of the mother to cooperate and allow the Agency to interview the children to determine, what, if any risk existed; as well as the mother’s failure to inform the father and the Agency as to the location of the children.
[321] This conduct interfered with the proper investigation of the complaint, escalating the matter from a private custody matter to a child protection matter. Given the mother’s refusal to return to the jurisdiction, this was an appropriate remedy.
[322] The professionals involved were concerned about the number of interviews that had already taken place. The risk of repeated questioning increased the possibility of contamination of the statement.
[323] The Constable testified that in the third interview, on June 3, 2008, the child used adult language when making comments about physical and sexual abuse; her affect, her body language was flat; inconsistent with the allegations being put forward. There were other inconsistencies in the statement.
[324] The interviewer asks “ Has anyone ever touched you that hurt you?” She said her father hurts her, “he kicks me and touches me”. When asked what she does at her father’s place ,she says they watch TV. She says that her father is mean to her and explains about an event where her father pushed her down in the snow. She explained that her father knocked the wind out of her.
[325] The interviewer reminded A. that she was to tell the truth. The interviewer considered that these statements about the father were fabricated. At the end of the interview, when it was apparent the police and Children’s Aid Society were going to interview V., A. said to them, V. will not tell you anything “he likes her. She has not had the same adventures as I have.”
[326] During the interview, she was asked when she is with her Dad does he give her hugs. She replied “no, only Mommy gives me hugs”.
[327] The Access Facilitators Observation Reportss confirm this statement is not true. There are many activities at her father’s and they remark consistently on his patience with A.
[328] A. said that the paternal grandmother was present when the father pushed her in the chest outside the home. The paternal grandparents both testified no such incident occurred while the children were visiting their father in January.
[329] She also said she was dragged upstairs by her father, thrown on the bed, was disrobed and he placed his finger up her bum. The timing of this occurrence is uncertain.
[330] V. made it clear to the interviewer she was not interested in the interview process. She was impatient, exhibited a low attention span. They were unable to build a rapport with her. She said her sister interprets a touch as a hit. “If you touch her she interprets it as a punch and she will tell Mom.” Out of context and on the way out of the interview, she said “I want to live with Mom. Okay, Bye” and left the room. The examiner concluded she was coached .
Medical Intervention
[331] Having satisfied herself that there was no urgency to A.’s physical condition, the pediatrician arranged to have the child tested in her own environment by using a portable halter monitor. On June 11, 2008, the child was fitted with this device and the parents instructed to keep a journal for 24 hours to record any observations or complaints of the child about breathlessness or chest pain.
[332] The child went about her ordinary activities. The results indicated no evidence of chest or respiratory difficulties. However, the patient journal kept by the mother did indicate several episodes / complaints of same.
[333] Having concluded that the results evidenced no organic cause requiring medical intervention, the pediatrician referred the mother by letter dated June 21, 2008, to Mental Health Services for Assessment for generalized anxiety. The anxiety was considered significant with potentially serious effects on the child. The mother was advised and provided written material to assist her in the interim.
[334] Mental Health services replied on June 23, 2008. The mother was referred to a male psychologist, who was expected to start a practice in the * area at the end of July. The child would be one of the first group of patients to be seen.
[335] The pediatrician believed that the children would be seen by a psychologist by July, 2008. The children were not seen for therapeutic intervention until court intervention in January, 2009
[336] The mother reported to the pediatrician on August 6, 2008, that the written materials had helped and her daughter’s chest discomfort had lessened. The child was fine and her health complaints were reduced . The mother enquired about some redness on the child’s bottom and that issue was appropriately addressed during the discussion. The doctor was satisfied with the way the mother was dealing with the anxiety.
[337] In conclusion, the pediatrician saw A. three times, saw no symptoms of abuse, no medical evidence of injury or cardiovascular problems. There were no disclosures of sexual abuse.
[338] Due to the mother’s unresolved concerns about sexual abuse, the Pediatrician contacted the IWK Health Centre to enquire about the possibility of an independent assessment. She advised that, while she was not concerned about sexual abuse, she was aware of the mother’s distress.
Counselling Services
[339] The Agency expressed growing concern at the delay in accessing counselling services for the children. They asked the mother to take the children back to Dr. Gerrior. Given her misgivings that Dr. Gerrior would not investigate the sexual abuse allegations and her concerns about this therapist’s lack of objectivity, she declined.
[340] Subsequently, the mother obtained the name of a counsellor in Sydney in June, 2008, and brought that forward to the agency for their consideration. The Agency approached this counsellor to begin the process of approving her as a service provider.
[341] While the Agency was in the process of negotiating a contract, the mother found another more local counsellor, Ms. A.. She was informed by the Agency that the Sydney counsellor was approved on the roster and the local person was not. This would involve further delay.
[342] The mother did not agree to go to the first counsellor she suggested and claimed the distance was too long and too disruptive. The Agency agreed to provide the transportation. The mother remained firm and insisted on a closer resource despite the severe limitation on local resources. This delayed matters further.
[343] When the matter was referred to Mental Health Services in *, the mother insisted that the counsellors not have any information from the proceedings, including the assessment or opinions of the Children’s Aid Society and police regarding sexual abuse.
[344] The referral by Mental Health Services which resulted in an appointment in July 2008 with a child psychologist was cancelled when the mother learned the counsellor was male.
[345] The father cooperated, provided no obstacles to any therapeutic intervention and ultimately brought the issue before the Court to obtain immediate intervention.
[346] Unfortunately, although articulate, educated and apparently well respected in her professional community, the mother has displayed no insight as to how her behaviour might be seen as obstructive. She argues her participation in the search for a counsellor was helpful and cooperative. The mother wants to obtain counselling to investigate the sexual abuse allegations.
[347] Dr. Gerrior and the assessor testified of their heightened concerns about these children in the middle of this unresolved conflict. Dr. O. A. diagnosed A. with generalized anxiety disorder. The conflict that arose resulted in Mental Health Services adopting a stance that they would not become involved in therapeutic counselling until the court matter concluded.
[348] Court intervention was required to convey to the hospital services the heightened concern from the Court, the parents and involved professionals that these children need to be seen immediately.
[349] The Court imposed strict conditions prohibiting parental intervention with the therapeutic professional to prevent the conflict spilling over into the therapeutic mental health community further.
[350] Through this Court intervention, mental health resources was reinstated. They agreed to see the children on condition they report to child protection and communicate through their agency rather than the parents individually.
[351] While the Agency has been unable to substantiate the allegations that the child suffered sexual and emotional harm inflicted by the father, there remains an unresolved question that someone may have perpetrated sexual abuse in some manner against one or both of the children and that the children may continue to be exposed to such risk.
[352] The Agency argues, in the alternative, that the children have been and continue to be manipulated into making disclosure and allegations to serve purposes other than the children’s best interests. As a result, the children continue to be exposed to the risk of emotional harm.
Supervised Access
[353] The father is the only person accused of abuse. He has been supervised since June, 2005. No other person associated with the children has borne this degree of scrutiny. His parenting time supervised by family was extensive prior to November, 2008.
[354] With Agency involvement and pending resolution, all contact between the children and the father and maternal grandparents has been supervised from May, 2008 forward.
[355] In November, 2008, the mother advised the Agency that the children were afraid of and did not like the paternal grandparents. The Agency commenced supervision in November 2008 pending resolution of this hearing. This substantially reduced the father’s contact. The mother has resisted every effort of the Agency to lift supervision.
Access Facilitators Observation Reportss
[356] Two access supervisors were assigned to watch and make note of the interaction during the fathers access visits.
[357] The access facilitators notes are written independently from their observations. They do not collaborate with each other. It is an unusual case that demands this kind of vigilance.
[358] I conclude that the provision of two supervisors was, in part, to create a record of observations by two individuals that could be compared and verified.
[359] I conclude that the Agency developed a perception that the continued vigilance was not as a result of any risk that the father posed to the children, rather due to the animosity between the father and the mother’s family, the ongoing accusations, the mistrust of agency and police personnel and the risk that allegations would be made that the observations were not sufficiently vigilant to satisfy the mother and the maternal grandparents.
[360] Throughout the Access Facilitators Observation Reports and the affidavit of the Agency worker dated July 8, 2008, there are indications that the mother was not always on time or present when the access facilitators arrived to effect access between the father and the children.
[361] The accumulation of the events appears to indicate that the mother was attempting to sabotage the smooth flow of access between the father and the children.
[362] For example, on Wednesday, the 2nd of July, 2008, the children were not ready when the access facilitators arrived. The mother consistently indicates that the children are resistant to the access visits.
[363] On July 3, 2008, V., the youngest child, refused to attend for access, and the oldest child agreed to go for access on condition she be returned when she asked to be returned.
[364] As of July, 2008, having attended at the beginning of an access visit Barbara McPherson, the agency social worker had determined that the mother was directly contributing to the fear and the reluctance of the children to attend access on a regular basis with their father.
[365] In July, 2008, Ms. McPherson suggested that, in the event that the mother did not cooperate with access visits, the Supervision Order might be reviewed and a more intrusive method be employed to ensure ongoing contact between the father and the children.
[366] The Agency and Ms. Rule believe that the constant reinforcement by the mother and the grandparents to the children that they will be safe because the access is supervised conveys to the children a sense that there is a reason to be concerned about their safety.
[367] The mother does not express insight into how her behaviour affects the children. She confirms in her testimony (paragraph 27 of the affidavit dated August 18, 2008) that the children need to know they are safe because they have reason to fear and they believe, as she does, that their father has abused them.
[368] Despite the difficulties in exercising access, the bulk and weight of the Access Facilitators Observation Reports indicate that the children interact in an unobstructed, free and affectionate manner with their father.
[369] In ordinary circumstances, the Court would not have this record of protracted surveillance or the benefit of a second pair of eyes depicting the interactions between the father, the paternal grandparents and the children over such a sustained period of time, from June, 2008, to March, 2009.
[370] The Access Facilitators Observation Reports indicate consistently that the father is able, in this limited access environment, to move through their resistance and to consistently parent them patiently, lovingly and carefully, placing the children's interests at the forefront of his focus. This is despite his frustration and impatience with the lengthy process; the delays; the cancellations; the attempts by the mother, on occasion, to plan activities before, during or after his access.
[371] Notwithstanding A.'s behaviour difficulties, the father was able to engage her in activities, was able to make the best of each visit, was able to create time when their physical interaction was positive, without any evidence of fear. His daughters enjoy television, indoor activities and outdoor activities with their father in these constrained circumstances.
[372] There is tangible evidence to suggest that these children are not afraid of their paternal grandparents.
[373] A.'s presentation during these visits was, at times, aggressive against the father and her younger sister. Her behaviour was at times obstinate, defiant, untruthful to the point of being obnoxious and yet with careful and patient interjection, the father was able to move through her resistance and allow her to be the child that she is.
[374] The father watched as her defiance increased to the point of being unreasonable and he responded calmly, consistently even though her behaviour caused him considerable grief.
[375] There are glimpses of this difficult behaviour in the Access Facilitators Observation Reports during the maternal grandparents' visits, although they are far less evident. Their wise strategy is to divide their focus, one with each of the children, reducing the possibility for conflict.
[376] There is evidence to support that A.’s preoccupation with cleanliness after bathroom use is evident in her own home, has been evident in the past in her maternal grandparents' home and was certainly evident in her father's home. This does not appear to be a continuing problem.
[377] The therapist noted the level of anxiety this child experienced being in the middle of the conflict and the extreme loyalty bind created by the mistrust and conflict between the parents and the maternal grandparents.
[378] I concur with the observations of Ms. Rule when she indicated that in her view the father was patient, even in situations which called for a firm approach to A.'s escalating behaviour.
[379] The Access Facilitators Observation Reports confirm the father's deep commitment to being a significant and important parental influence in his child's life and his commitment to keep the children out of the conflict between himself, the maternal grandparents and the mother.
[380] The reports indicate that there is always an initial hesitation when the children present themselves but that hesitation is quickly resolved. The visits exhibit much touching, appropriate contact between father and children, affection and certainly great affection for the paternal grandparents.
[381] There has been no serious challenge to the father’s ability to provide an appropriate home for the children. The home is child-centred and more than adequate for the physical care of the children.
[382] Ms Rule commented on the father’s parenting despite the obstacles. She confirmed that the test results confirm no indication of pathological anger. While she describes him as a large man whose size can be intimidating, whose voice and manner can be “large”, there is no evidence to substantiate an anger management problem, no evidence of violence or a propensity for violence.
[383] She reviewed the Access Facilitators Observation Reports and advised he was extremely appropriate throughout all access visits displaying a high level of empathy. She observed that A.’s behaviour was increasingly difficult such that any parent would have a difficulty with this behaviour.
[384] There is not one occasion in these notes when the father has derogated the name of their mother or diminished her importance in their lives.
[385] In her December 18 consultation note, she concluded, having reviewed all Access Facilitator’s Observation Reports, as follows:
The findings from the parental capacity assessment in terms of the father’s relationship with the children were positive. I found a healthy and warm attachment relationship between the father and the children and that he exercised appropriate parenting strategies. There was consistency throughout all the access notes with my findings. In addition, there was consistency between the two sets of access notes from both facilitators, the father remained child focussed and loving while exercising appropriate discipline and control
[386] She advised, that clearly, the children enjoy their visits.
[387] She initially commented he could use some education regarding discipline. He provided evidence he has completed appropriate course material.
[388] He has returned to Dr. Gerrior to obtain instruction in dealing with A.’s ongoing problems.
The Paternal Grandparents
[389] G. S. and N. B. have been married for 38 years.
[390] The paternal grandmother has a Bachelor in *, a *. Now retired, she practiced * since 1969 and worked in *.
[391] The grandfather is retired, having worked as a * in a * store for approximately 42 years.
[392] These grandparents have had an opportunity to observe the behaviour of their son, his wife, S.S. and the two children during their marriage and subsequent to the birth of the children.
[393] In 2007 the mother planned a class trip to *. She asked the paternal grandparents to come to their home and assist (supervise) their son while she went to *.
[394] The paternal grandparents, through considerable effort and personal expense, made themselves available in Nova Scotia, as facilitators, to ensure the children have ongoing contact with their father. The paternal grandmother has borne the brunt of supervising the visits both with her husband and alone, when necessary. This involves a cost of travelling from * to Nova Scotia and staying with her son as required.
[395] The grandparents have not had a visit since November 16, 2008. Although, they had been accepted by the mother, without complaint, as appropriate supervisors in June 2007, in November, 2008, the mother’s allegations that the children were afraid of them resulted in the agency supervising their visits.
[396] The paternal grandfather was direct, forthright and clear in his testimony. He was a supportive grandfather and involved in the access visits engaging in children activities. I found his testimony believable.
[397] He believes his son is a good parent, a responsible, attentive, caring and loving father and has shown great patience. He does not believe there is a need for supervision but he has complied with the Court order and the requirement of the Agency.
[398] The paternal grandmother described her son's behaviour as helpful, kind and his behaviour as a father, as patient and caring. She was courteous to the Children’s Aid Society workers, the assessor, the police and others even though she was not in agreement with the supervision.
[399] She has a good relationship with her grandchildren, interacting with them extensively on her visits to Nova Scotia.
[400] Her testimony corroborates the description of D.S. in the volumes of Access Facilitators Observation Reports. These reports indicate an excellence of rapport activity and exchange between the paternal grandparents and the children. The visits supervised by the paternal grandparents evidence affection between the children and their father and the paternal grandparents. There is much hugging, reading stories, activities, good food and the usual childlike behaviour.
[401] Both paternal grandparents were present at their son’s home during the January winter 2008 “disclosures in which there is an allegation that the father pushed A. on the chest, causing her to fall in the snow. This was coupled with more allegations regarding sexual abuse.
[402] The paternal grandmother took her responsibilities as supervisor seriously, ensuring that she was present and visible during all periods of access time. Neither of them witnessed this incident. Given the level of supervision that they provided, it is difficult to imagine how this incident could have happened while they were present. I believe the paternal grandmother’s testimony.
[403] Having heard the evidence, observed the paternal grandparents testify, read the extensive Access Facilitator’s Observation Reports, which confirm from two eye witnesses the level of affection and activity between the paternal grandparents and the children, I conclude that this fear of the grandparents is a total fabrication.
[404] It is more probable that this compliant is lodged because the paternal grandparents were getting unsupervised access when the maternal grandparents were being supervised. It may also be caused by the mother’s fear that the father’s family will have some influence over the children.
[405] On one occasion in November, 2008, at the time the mother was indicating that the children expressed fear of the paternal grandparents, the child A. actually ran into the father's home and expressed surprise that the paternal grandparents were not there. She also indicated when she went into the home that she was surprised that there was food in the house.
Validity Assessment (Exhibit 29)
[406] The Agency hired Mr. Gallery as an expert to assess the validity of the children’s joint police and child protection interviews. His qualifications as an expert were accepted without objection by counsel for all parties.
[407] He is a retired RCMP officer with 32 years experience. He has conducted approximately 1,200 interviews of children involved in allegations of sexual abuse. He trained under Dr. John Yuille and now trains front line workers and police in the Step-Wise Interview Procedure and statement validity analysis methods. He has been qualified as an expert in conducting analytical reviews of sexual assault interviews in the Supreme and Provincial Courts of Nova Scotia.
[408] The expert described, in detail, the Content Criteria Rating Form which he used to rank the content criterion. This included seven elements under the general category of General Characteristics including coherence, spontaneous reproduction, sufficient detail, contextual embedding, descriptions of interactions, reproduction of conversation and unexpected complications during the incident; six elements under Peculiarities of the Content, for example, unusual detail, peripheral details, accurately reported details misunderstood, related external associations, accounts of subjective mental state and attribution of perpetrators mental state; and five characteristics under Motivation -Related contents including spontaneous -related corrections admitting lack of memory, raising doubts about one’s own testimony, self deprecation, pardoning the perpetrator and finally, under offence, specific elements details characteristic of the offence.
[409] He also described the Validity Checklist which evaluated the child’s behaviour during the interview. This includes an evaluation of the language used, the level of knowledge relative to the developmental age of the child, affect, spontaneous gestures, susceptibility to suggestion, drawings and behaviour with dolls. He evaluates this with other evidence, other statements from the child and from others and physical evidence, as well as behavioural signs.
[410] The assessor cautioned that this analytical process was subjective in nature and is secondary to the findings of a trier of fact. Mr. Gallery confirmed he does not rule out that the events the child described may have or could have happened. However, he expressed concern about the lack of spontaneity in the statements and the interaction in the interview between the child and mother.
[411] Regarding the first interview, he stated the mother’s presence in the interview was a major concern to him. He noted:
There was some improper questioning . Much was induced by the questioning of the interviewers. The child was susceptible to suggestion from some questions. None contributed to a major contamination of the interview.
While there is some detail, the descriptions of interaction with the father are vague.
There was a lack of corroborating major elements in other statements made by other witnesses, a lack of physical evidence and a lack of behavioural signs consistent with the abuse.
[412] The presence of the mother, as well as the lack of confirmed criteria in the Content Criteria Rating Form, caused him to conclude that the interview did not meet the standard required for there to be validity in the information obtained.
[413] The mother took issue with the validity assessment. She questions the experts objectivity despite her counsel accepting him as an expert. She alleges he may have been biassed due to the fact that he had reviewed a synopsis of the investigative interview and reports for the Children’s Aid Society regarding the case. He also had a copy of the basic chronology of events regarding this case and the police tapes of the three interviews of the children only.
[414] The mother disputes that there was not physical evidence and notes that her parents’ statements, her statements and her brother’s statements were not before the expert. Had they been, she argues, they would corroborate the child’s statements, as she repeated her disclosures to them.
[415] That would only speak to the repetition of the child’s statements and would not verify them or make them more reliable.
[416] She believes that the lack of spontaneity is due to the repeated interviews. Mr Gallery took the repeated questioning into consideration in his analysis.
[417] Mr. Gallery testified that there was no reason for a detailed review of the second interview in 2007 as there were no disclosures.
[418] Mr. Gallery assessed the third interview. He advises there is no spontaneous reproduction of events by the child. In the June 3rd interview, the child referred to one incident involving her father touching her. He said:
this is certainly not a consistent feature with a child who has been abused over a period of years by an adult. The incident of being pushed by her father and “having the wind knocked out of her” is contaminated by adult wording.
[419] His review of the interview, the lack of detailed information of events pertaining to the criterium reveals that the required criteria have not been sufficiently met for these matters to be considered valid as reported.
[420] In conclusion, starting from the first interview the influence of adults whether intentional or unintentional, becomes apparent in the mannerisms of the child and the way the child describes the events. Mr Gallery advises that when talking of the sexual allegations, the child does not use free text or free narrative.
[421] Of all interviews, none met the minimum standard requirements to validate the information:
Given the information available and the review format utilized the analyst must conclude that the allegations concerning the alleged abuse by a person identified as the father of the subject A. has not met the required analytical format and therefore the test of validity. This is not to say that an event or events did not occur. It is merely confirming that given the information and utilizing a scientifically devised format and the most objective manner possible the information as described has not met the required criteria.
[422] I could detect no evidence of bias in the testimony of this witness. He highlighted the frailties associated with the interviews to alert the reader that drawing conclusions on the basis of the interviews would be risky. His opinion is one of many factors to weigh when considering what if any risk the father poses to these children.
[423] Further interviewing of the child is not recommended.
[424] The mother believes all six interviewers (2 in 2005, 2 in 2007 and 2 in 2008) potentially held a bias because they had knowledge of the police and Children’s Aid Society conclusions in 2005. During the third interview in 2008, she believes that Cst. R. was informed of the police perspective by Cpl. B..
[425] She further alleges that the Children’s Aid Society used her child’s situation to find evidence of emotional abuse to support their current Plan of Care.
[426] I conclude there is no evidence of any actual bias. I do not have evidence before me that would cause me to conclude that any of the interviewers were influenced by previous materials such that the interviews favoured the father.
[427] The mother has taped her conversations with police and child protection, as well as the after hours Duty Protection Line. She believes the recordings of their conversations are not absolutely accurate and she wants her own record of proceedings.
[428] In her testimony, the mother asserted that she had proof that in a telephone conversation with her, the Agency workers were laughing at her. At the request of counsel, the Court ordered the tape produced. The 55 minute conversation relates to an attempt by Ms. Warner to discuss the new access schedule and to attempt to introduce an additional period of Saturday access for the father.
[429] There was no evidence to support the mother’s view that she was treated disrespectfully or laughed at. Quite the contrary. This tape corroborates the father’s testimony and that of two of the workers in charge of the file at different times throughout. They testified that it was difficult to talk with the mother or negotiate on any issues because she preached at them, spoke over them, failed to listen to anyone else’s opinion. The conversations degenerated and very little could be accomplished. Her in court testimony was delivered in a similar style.
[430] The mother’s manner of conversation with the workers was verbally aggressive, rigid and resistant to change. She spoke over the workers voice preventing the worker from finishing a sentence or explaining the Agency position. Despite the respectful, very patient attempts of the worker, the mother refused to compromise or adjust the schedule or to offer alternatives to ensure the father’s already limited access schedule could be maintained.
[431] For 55 minutes the mother put forward numerous obstacles including the children’s extra curricular activities, her parents’ need to have access , the children’s need to have down time, etcetera.
[432] At no point did she exhibit any flexibility or insight into the rights of the child to have appropriate contact with their father.
[433] The mother was also concerned when police questioned possible involvement by other persons, including the grandparents or herself. She insisted the focus remain on investigating the father.
[434] I conclude that it was reasonable and appropriate for investigators to look at other persons around the children, including the grandfather, in addition to the father, particularly in light of the expert testimony that abused children do on occasion name persons other than the actual perpetrator.
[435] I also conclude that the task before the Court is to determine what disposition is appropriate, after reaching a conclusion as to whether there is a continuing risk of emotional harm.
Some Collateral Witnesses
L.S.:
[436] L.S. currently teaches A. She is a former principal of the school in which the mother worked. She was very supportive of the mother professionally and personally. She knows the father far less, rarely seeing him prior to the separation. She was not in a position to comment on him as a parent. She found him disrespectful and bold because he entered her school to meet his wife on numerous occasions without signing into the office.
[437] She was acquainted with the paternal grandparents when they came to pick the children up from school. Her observations of the paternal grandfather were positive and did not corroborate the mother’s assertions that the children were fearful of the paternal grandparents in November, 2008.
J.S.S.:
[438] J.S.S. is a professional colleague and very supportive of the mother, speaking highly of her, believing her to be a very open, honest and straightforward person.
[439] The father called no non-family collateral witnesses.
Analysis
[440] The Agency investigated the grandmother’s referrals alleging sexual and physical abuse of the children by their father in 2005 (from the end of August to early December 2005) and in 2007 ( from April 2007 to the beginning of January 2008 and again in June 2008.
[441] For a different purpose and with a different focus, the RCMP investigated each of the series of allegations. They were unable to find reasonable and probable cause to lay charges against the father.
[442] Neither the expert, Mr. Gallery, or the assessor, Ms. Rule, believe the child’s statements are reliable. Each report must be assessed individually; yet, the weight of their combined testimony and conclusions is persuasive.
[443] The mother and maternal grandparents have challenged the objectivity of Ms. Rule. This arises in part because of the references to the polygraph in the report and her demeanor during their interviews of the father and his parents.
[444] It is clear, when reviewing the tape of the paternal grandparents’ interview, that Ms. Rule was favourably impressed by them. She openly praised them. It is also clear that the police officer, called in to translate between the paternal grandparents and Ms. Rule, was friendly and somewhat empathic towards the father’s plight.
[445] After hearing the paternal grandparents give evidence in French , with the benefit of a translator before I observed the Rule interview, I can independently observe that I was impressed with their testimony.
[446] At the mother’s request, I have reviewed the mother’s and father’s interviews with the assessor to determine whether there was preferential treatment.
[447] The father clearly felt very comfortable in the interview. He did not appear to know the specific allegations. The assessor canvassed many options including the possibility the allegations were tied to the grandmother.
[448] She treated both parents as if they were telling the truth. She was aware that the police did not believe the grandmother. She was very cordial and obviously impressed with both parents and said so. She praised both.
[449] The questions asked of both parents were scripted. Ms. Rule demonstrated in her testimony that her book of questions to each principal participant is identical. I have verified this by listening to the interview. The preamble was different for each parent.
[450] The interview went faster with the mother than the father. This is partly due to the mother’s confidence in understanding the questions and having answers. The father needed to have some questions clarified and his answers were given after reflection.
[451] I cannot determine whether Ms. Rule’s demeanor was less than objective as I have nothing with which to compare these interviews.
[452] She appeared empathetic to both parents. It is clear that she presents as believing the father. She frankly informed the mother in her interview that she found the father believable. She also told the mother she believed her as well. She did not appear to favour one over the other. She was more aware of language issues with the father and spoke to the mother as a professional.
[453] Contrary to the mother’s concerns, the assessor did not obviously equip the father with any more advice regarding the process than the mother.
[454] Both interviews appeared casual and she clearly engaged each of the parents such that they spoke freely and openly with her. She shared similar personal information with each of them.
[455] She spent more time with the father. He was the parent against whom the allegations were made.
[456] The maternal grandmother complained that Ms. Rule would not let them talk about the sexual abuse allegations. Ms. Rule advised she was not investigating the allegations. She had access to the Children’s Aid Society file, the police interviews and was aware of the specifics.
[457] I also listened to this interview with the maternal grandparents. The grandmother admitted, in her testimony, that she did speak of the allegations. The grandparents itemized for the assessor all of their concerns about the father’s discipline methods, his treatment of them and of their daughter.
[458] While it is reasonable to conclude the grandparents were disturbed and confused about the developments, I have no evidence to support their belief they were not allowed to speak freely about their concerns.
[459] I can indicate, after listening to the police interviews of the grandmother, while they clearly concluded they had problems with her statement, the grandmother was treated with civility and kindness.
[460] Regardless of their conclusion in 2005 , when the second statements were presented in 2007, they appeared to follow protocol, removed the father, placed him in cells, contacted the mother and began the interview process again. In their words, there is a zero tolerance policy when police deal with allegations of domestic violence.
[461] The mother and her parents are critical of the Agency, accusing them of bias against them. The evidence confirms that even after the first two investigations were complete and the third set of statements were reported, the Agency, out of caution, removed the paternal grandparents as supervisors; thereby, significantly reducing the father’s access while the Court process was underway.
[462] Even if the Court were to put aside the conclusions of Ms. Rule and the Agency, there are numerous obvious objective medical personnel who have physically examined the oldest child and found no signs of physical or sexual abuse.
The Sexual Abuse Allegations
[463] The totality of evidence surrounding the first statements causes me to conclude there are frailties with the disclosures which could lead to other equally and more probable hypothesis other than a conclusion that the father abused the children, including the following:
1. The child was not abused;
2. The child’s first interview with police did not identify sexual behaviour. The sexual description of the demonstration was the immediate interpretation of the grandmother;
3. The grandmother admitted thinking immediately her worst fears were that the father had sexually abused this child. Her responses and subsequent behaviour potentially distorted the child’s perception of events and imported sexual connotation where none existed;
4. The first doctor to see the child noted the bruising was consistent with a number of possibilities not related to sexual or physical abuse. The bruising could have happened when the father was away and the children were with the grandparents;
Contamination:
5. (A) The child was involved in at least 5 separate discussions with family members in which she was questioned about what daddy does to her. Before the joint interview by police and the Children’s Aid Society her statement was too contaminated to be regarded as reliable. In the chain of events, the child told the grandmother, the grandparents together, the mother, the mother and grandmother, the mother in the presence of the younger child, the Doctor, the Children’s Aid Society and Police in the joint interview;
5. (B) The child learned sexual terms inadvertently from being asked questions by grandmother who is not trained to interview children in such circumstances. The child grew through the repeated interviews to acquire a language of abuse. There is no evidence that support her having an intellectual, emotional or physical knowledge of sexual abuse or its effects;
6.The initial interview of the child included the mother. The child whispered to the mother throughout the interview. The police, the assessor , the psychologist and Mr. Gallery, the expert called to assess the validity of the child’s statement, all expressed concern that the presence of the mother inevitably contaminated the statements and adversely affected the validity of the interview. There is no suggestion that the mother intended to invalidate the statements;
7. The police and the Children’s Aid Society proceeded assumed a hypothesis that the allegations could be true. Both Georgette Burke and Cpl. S. were impressed with the graphic nature of the child’s statement on August 31, 2005. Each decided to continue their investigation. Neither proceeded with any doubt that these statements required investigation; This defeats the allegation that the agency was unprepared to investigate;
8. The father was the first and primary suspect; His contact was restricted. He cooperated with the investigation throughout, from 2005-2009;
9. At 4 years of age, 4 months before these statements were made (April 2005), this child went on a pilgrimage to M., in B. -with the maternal grandfather as the primary caretaker and the maternal grandmother as guide for 15 ‘strangers’. Thus, there were other possible sources of sexually explicit language or inappropriate touching. While possible, this may not have been probable if the grandparents were as diligent as they suggest and there is no reason to suspect they were not diligent;
10. The paternal grandfather babysat the child overnight during the week the parents were away. The police and the Children’s Aid Society have not seriously considered the grandfather as a possible perpetrator;
11. The child was sexually abused by someone in her extended family environment;
12. Even after the police and the Children’s Aid Society ruled out the father, there is no evidence before me that suggests that either the Children’s Aid Society or the police pursued an investigation of any other male or female figures;
Exposure to pornographic pictures:
13(a). The mother admitted that during the months preceding the statements she had used her home computer to research a paper on child sex trade for a university course she was taking. She advised that a police check of her computer may detect computer pop ups relating to this subject. Otherwise, there were no ‘dirty’ magazines in the household;
13(b). The mother disclosed to police she had, when alone, downloaded from satellite, previews of 3 pornographic videos and one movie depicting oral sex. The mother also told police she had no reason to be concerned about the father’s computer use.
During the initial investigation, the mother was uncertain and anxious about the possibility that the child accessed the videos or portions. When she testified over three years later she said there was no possibility this could have happened. This child is intelligent and precocious , well able to view computer articles and TV on her own despite obvious parental restriction. I accept the mother’s statements closer to the event as the more reliable response;
14. The mother pointed out some discrepancies in the child’s statement; eg, the child said in the joint interview she had a pet. The mother verified for police the child had neither a dog nor a cat;
15. The statements contained adult language and sexual information that are sophisticated for the child’s age and stage of development;
16. The recounting of her statements by the grandmother contained words and phrases not common to the child. They can be considered translations by the grandmother of the child’s words (Dad v. Papa *);
17. The father’s first visit with the children, after the initial statements, occurred in a supervised environment. Two social workers were present. They described the children as reacting with glee when they saw their father, very playful, without any signs of fear and engaging in much physical interplay . The child A. pleaded with him to come home. The workers noted no demonstration of fear, no attempts to appease. The children behaved happily throughout the visit;
18. The mother advised the social worker that A. experienced chronic constipation, causing some redness and irritation to bum area, habitually scratching herself and being itchy;
19. A. was 5 years old when these statements were made. She was known to be an emotionally challenging child since the age of two. Her age and stage of development would make her ‘bathroom talk’ predictable.
[464] During the initial 2005 _disclosure_ and the subsequent 2007 and 2008 _disclosures_, the allegations have been broadened to include significant physical, emotional and sexual abuse. The police investigation did not produce any charges and their file was closed on each occasion.
[465] The child protection proceeding investigated and participated in a joint investigation with the RCMP. They paid for the assessment to have a more independent substantive review of the parents clinically. They were prepared to close their file and to assist the parents by supportive services.
[466] Child protection again became involved in May, 2008. There was a third series of disclosures to Dr. S..
[467] The divorce hearing was before the Court, the father’s day time access was being supervised by his parents, the Court was in the midst of the grandmothers’s testimony when the mother removed the children from the jurisdiction.
[468] The grandmother testified about these “new disclosures” in court. No party raised the issue of what, if any, changes should be made to the current supervision between counsel or before the Court.
[469] Instead, the mother left court, contacted the provincial duty line, taped the conversation, sought advice and was told to protect the children and report to the local authorities as soon as possible. She contacted the RCMP, taped that conversation and sought assistance with her plan to seek an independent interview in Halifax. She advised she had * meetings in Halifax that weekend. She testified she interpreted the advice and support of the RCMP and the duty line as permission to take the children to Halifax where she stayed for two weeks trying to arrange an independent investigation.
[470] She did not respond to the Children’s Aid Society requests to return for a joint interview and did not advise Children’s Aid Society, the father or the Court of her whereabouts. There was no timely response to their repeated efforts to contact her.
[471] She brought the children to the IWK Health Centre to obtain a fresh assessment.
[472] The mother reasonably concluded she had the implicit consent of the police to interfere with the father’s impending supervised access visit in order to attempt to get an independent assessment at the IWK Health Centre.
[473] She refused to return with the children or disclose her whereabouts. The children’s hospital contacted the Agency in Port Hawkesbury and after examining the child, the child abuse team referred the child and the mother back to the local agency for investigation.
[474] I do not condone her self help measures. They were ill advised and triggered Child Protection involvement. She surreptitiously removed the children, avoiding direct contact with the Court or the father. She avoided telling the authorities where she and the children were and refused to bring them back to the jurisdiction, as required by provincial protocol, in order to investigate the most recent allegations.
[475] There were no disclosures to Dr. Gerrior. She had sufficient contact with the child in 2005 to observe the child’s behaviours.
[476] Dr. M.’s evidence does not substantiate sexual abuse by the father.
[477] Dr. S. and the emergency room doctor noted no physical signs of abuse or distress.
[478] Dr. O. A. conducted a more intensive investigation and noted no organic difficulties regarding the chest pain.
[479] If I were to take a broad look at the disclosures from 2005 to 2008, as noted by the grandmother, as the primary source of child statements, it would be reasonable to conclude that if the father actually sexually digitally and physically interfered with this child on a repeated basis as suggested, there would be some physical signs of this abuse in such a young child. There simply is no physical evidence to confirm physical or sexual abuse.
[480] The mother testified that, after the original disclosures, she questioned the children in the car (both were present) and played games with the children, researched the subject, bought books and educated her children on good touch bad touch, in order to address their anxieties as she could.
[481] She has challenged the validity and value of the interventions of Dr. Gerrior , Ms. Rule, the police and the conclusions and professionalism of all Children’s Aid Society workers. She contends that the expert, Mr. Gallery, was influenced by the file materials, as were the six different persons conducting the child interviews.
[482] When asked by Dr. Gerrior to have the father attend the sessions with A., the mother’s view was that A. was not comfortable with the father attending. This has less to do with the child’s discomfort, which could have been handled by the psychologist, and more to do with the mother’s discomfort. The mother wanted to control and manage the information. This approach did not respect the rights and responsibilities of the father.
[483] The mother insists the evidence supports her conclusion that the father is an abuser. It allows for no other possibilities or interpretations or insight.
[484] This does not include the father as an equal authority figure. By adopting this restrictive perspective, the mother exhibits no significant insight into the value to her children of a significantly involved equal parent, nor the corresponding loss should these children lose their father.
[485] When questioned, neither the mother, nor her parents believe they have, by word or behaviour, contributed to the children’s fear or implicitly suggested that their father’s participation in their lives must be supervised in order for the children to be safe.
[486] This is in spite of the fact that the grandfather has pursued a peace bond against the father; video taped the arrival and departure of the children while in transition between the households (it is noted that the father did the same); driven the children to therapists and instructed the mother to bring up certain topics around allegations of abuse by the father; participated in bringing the children to Dr. M., Dr. S., Dr. O.May 27, 2009 A. and the IWK Health Centre; discussed the situation with her brother in Halifax; and continued to discuss disclosures and present sexual and physical abuse by the father as the presenting problem to the doctors.
[487] There is little insight into how such obvious behaviour affects these observant and intelligent children. The mother and grandparents have helped to create this fear, exacerbate it, perhaps unintentionally endorse its validity and then use the exhibition of this heightened fear to support their belief that the father is a sexual predator and that children are afraid of him and are justifiably reluctant to visit him.
[488] Much has been made of the toileting problems experienced by A. These problems surfaced before the allegations.
[489] Unfortunately, the grandparents and mother were reluctant to admit there were any problems whatsoever in any home other than the father’s. This is not supported by the previous evidence in August, 2005, and in notes and recordings throughout where A. has been observed to experience problems, spend long times in the bathroom at the mother’s home (an admission in therapy), at the grandparents home (not as often) and most visibly, because he is the subject of such intense scrutiny, the father’s home. The Access Facilitator’s Observation Reports confirm this.
[490] In an effort to erase any other reasonable possibility that this problem is an independent issue, a result of anxiety relating to the child’s personality, or to the conflict within which she lived while the parents were married, the grandparents would not admit to any other conclusion other than it arises out of sexual abuse and /or her reluctance to be with the father.
[491] This is one of those instances where the Court relies on the expertise of persons who are knowledgeable about the strengths and frailties of child sexual abuse allegations. The net result is that two professionals schooled in child interviews were not satisfied that the statements made by the child were reliable or disclosed sexual abuse.
[492] The mother has confirmed in her testimony that she wants to employ a counsellor to get to the bottom of the allegations. She has been advised by the Children’s Aid Society, the police, Dr. Gerrior and Ms.Rule that this approach is not recommended.
[493] All professionals have recommended the children not be interviewed about these allegations again. The process is not helpful to them and, due to the time and contamination of the first statement and all that follow, it would not lead to reliable conclusions.
[494] The mother has little insight into the difference between investigative and therapeutic involvement. The police and the Children’s Aid Society were responsible for the investigative process. The counsellors that followed resisted the continued efforts of the grandparents and the mother to use them as an investigative tool rather than a therapeutic tool.
[495] The mother maintains she understands the referral to Dr. Gerrior was to establish a safe place to disclose. That is an incorrect interpretation of the referral. It was not designed primarily as a place to create an opportunity for disclosure, regardless of what the mother intended or believed.
[496] This therapy would place the children with an outside observer during the process of therapeutic sessions designed to deal with the behavioural issues arising from her life circumstances. This would include disclosures, and any subsequent disclosures, that the child might make in the sessions.
[497] Once the relationship could be established between therapist and child, the behaviour of the child could be observed to detect what, if any, issues arose for the child. It was not meant to create issues that did not arise and, as far as Dr. Gerrior was concerned, no sexual abuse issues arose and there were no sexual abuse disclosures in the sessions.
[498] For reasons that are not clear to me, there is no evidence before me that the police or Children’s Aid Society considered anyone else close to the children. After interviewing the child, the mother and father, the grandmother and grandfather and possibly speaking to the uncle, the police concluded the father was telling the truth.
[499] They suspected the grandmother had greatly exaggerated the child’s disclosures. They closed their file, and shortly thereafter, the Agency closed their file.
[500] This Court is not focussed on an analysis of the Children’s Aid Society and RCMP procedure and protocol. Nor is it the task of this Court to draw conclusions about the sufficiency of the investigative plan or process. No party tendered the entire police file. My task is constrained to the determinations required pursuant to the Child Protection proceedings.
[501] Having regard to the totality of the evidence, using the civil standard of proof, there is nothing that leads me to conclude that the father is a risk to his children. I cannot conclude that he sexually abused these children.
[502] What is the most likely scenario?
[503] The child was conflicted already due to her own personality and behaviour difficulties. This was exacerbated by significant parental conflict that has escalated considerably since her sister’s birth. Her personality and the family conflict were fertile ground for allegations of abuse.
[504] The grandparents were concerned about the marital conflict, which clearly existed early in the marriage.
[505] The parents left for a weekend to attempt to rekindle the relationship. The child is being disciplined by the grandmother because she is in a rage over an incident with her younger sister. The grandmother admits she has to physically restrain A., not an unusual experience given this child’s behaviour and difficulties.
[506] The child is attempting to scratch her or herself. She has been known to strike out, spit and have other physical responses when being disciplined.
[507] In an effort to get out of being placed on the “naughty mat”, the child promised the grandmother information that will help her explain why she is so upset.
[508] The first statement made by the child to the grandmother is, “my daddy and mommy are fighting. They are hurting me”. The grandmother ignores the reference to her daughter. The questioning begins. The child begins to respond to questions from the grandmother and, unwittingly, the grandmother’s worst fears are realized, as the child makes disclosures to her of the hurt she has felt at the hands of her father.
[509] The first disclosure is not sexual in nature. It depicts biting, holding her hands. The restraining of this child by holding her hands is not unusual. The grandmother was in the process of restraining the child to get to the bottom of her rage. The core of the disclosure was “he hurts me with his hands and teeth”. The reference to teeth is innocent enough when one considers roughhousing with a child, and the pointing at her bum could refer to any action, including a slap.
[510] There is no physical evidence of sexual abuse. No teeth marks, no evidence of digital interference or any evidence which would sustain the kind of sexual abuse allegations that has grown to include oral sex performed on the child or oral sex by the child on the father.
[511] In the three years between 2005 and 2009, there have been at least five doctors, including the attending emergency physician and pediatrician and the IWK Health Centre, who have seen these children specifically relating to sexual and physical abuse allegations. That does not include the family doctor that would see the children on a regular basis, whoever that may be. None have documented what can be considered evidence of sexual and physical abuse.
[512] The only physical evidence of injury is the small bruise depicted in the initial recordings of Dr. M.. Her findings were consistent with a self inflicted bruise, trauma from a finger, a fall from a trike, etcetera. If there was the significant sexual interference as alleged by the mother and her parents, it is reasonable to conclude that there would be more physical evidence .
[513] There are third party observations over a protracted period of supervision, in extremely trying circumstances, that the father has never faltered in his appropriate parenting of the children, despite having A. behave in a manner that would test the patience of an angel.
[514] The grandmother confirms she believes the father has performed oral sex on the daughter. She then reconstructs every incident of diaper rash, redness on her vagina or bottom, within the context of sexual abuse and feeds back that hysteria to the child.
[515] The child is then asked to repeat the disclosure for the grandfather and the effect of the disclosure on the grandparents is obvious to this bright child. The child is described as jealous of her younger sister. The attention this initially causes is positive.
[516] The child was required by the grandmother and the mother, to repeat the story over again to various doctors .
[517] Third party observers have witnessed a loving bond with the father. Maintaining this story creates a conflict for the children. It creates a heavy burden for the child to maintain this or be labelled a liar, as she has referred to early in her discussion with her mother.
[518] From that point and at each disclosure, the father is removed, limited supervision is imposed until the children are interviewed. An environment has been created in which the children’s view that Daddy did something very bad to them. They are encouraged to believe they are not safe unless their time with their father is supervised.
[519] Consider the nature of the third series of allegations made in May, 2008, on a visit to the doctor. The alleged abuse relates back to January, 2008; five months earlier. The allegation is that the father punched the child in the chest while they were playing outside his home on a supervised visit. His parents have testified they were not out of their sight. They are very believable.
[520] The punch to the chest, it is suggested, knocked the wind out of A. She was left in a snowbank until “she woke up” and went inside the home. Inside the home, she told the paternal grandmother who ignored her plight.
[521] The grandparents and the mother observe (retrospectively and currently) that A. is short of breath, complains of chest pain, weakness, etcetera. They document this in a parent journal even later, in July 2008 , when the child is wearing a halter monitor. Two general practitioners, a pediatrician and a member of the child abuse team at the IWK Health Centre find no physical evidence of chest injury or shortness of breath on examination, x-ray or as a result of the halter monitor analysis.
[522] The father’s rights and position as equal parent, and the children’s right to have him in their lives as an equal and participating parent, has been seriously undermined by the passage of time. A. visits various doctors to prove the allegations. These allegations have been cemented in their memory. The mother’s extended family has become an extended “safe place to disclose” or run from the father. The child refers to the father and Children’s Aid Society as ‘his team’.
The Law
[523] To be reliable, the child’s statements tendered through the video and others must allow for sufficient trust in the truth and accuracy of the statements because of the way in which the statements came about. The Court must be able to sufficiently assess their worth. R. v. Khelawon [2006] S.C.C. No. 57 and R. v. Blackman [2008] S.C.C. No. 37, Charron J.
[524] No one is prepared to say the child lied. No one, other than the father, is prepared to say the grandmother intentionally lied. No one is prepared to say, with certainty, that nothing happened.
[525] What we do know is that the police have concerns about the credibility of the grandmother’s account of the child’s statements. They have not laid charges, nor have they expressed any concerns about the father. Their task was to respond and to investigate the allegations to determine whether there is evidence on which to lay charges.
[526] The Agency has concluded that the father is not a risk to the child. They have not concluded that the child did not make these statements. They rely on their investigation, their subsequent interactions with the family, the assessor’s conclusions, the absence of concerns about physical and sexual abuse following Dr. Gerrior’s involvement, the absence of physical evidence and their observations of the father with the children from May, 2008, to April, 2009, to conclude the father poses no risk to the children.
[527] All professionals agree that any further interview of the children relating to these allegations would be detrimental to the children and would be entirely unreliable as it relates to finding out whether or not the child(ren) were physically or sexually exposed or abused.
[528] The child’s first statements to the police were not explicitly sexual. The assessor confirms this. It also does not contain statements that support a conclusion of physical abuse.
[529] Due to the sequence of transmission of the child statement’s, the context of significant family discord, the first statements to grandmother make sense. This child says her parents are hurting her. She has been living in family conflict for 3 years. She is bright, articulate, known to be aggressive and difficult to discipline. She may very well be hurting. One cannot conclude, in light of the entire context, that she is hurting because her father sexually abused her.
[530] The transmission of her first statement through the grandmother’s eyes and ears is problematic. The grandmother has underlying, perhaps unconscious, motives. The grandmother is afraid of losing contact with the children, knows of the family conflict, dislikes the father and constructs her own worst case scenario of sexual abuse immediately, out of that first exchange with the child.
[531] The child’s motive may be very simple. Telling someone she is hurting. The evidence supports this is not only true but her hurting is likely increasing if the conflict in this family is not arrested.
[532] There is no corroborating medical evidence of sexual or physical abuse.
[533] The sexual content is first considered by the grandmother . The numbers of exchanges and sexual talk supplied this 5 year old with language she likely never discussed with her parents and grandparents.
[534] Is there any other explanation for her advanced sexual knowledge?
[535] Yes. The least likely after all the evidence is in is that she learned this through her father. Either it arose out of the repeated sexual demonstrations and discussions , through exposure to sexually explicit information or she was exposed to someone else outside the immediate family.
[536] The probability of discovering who that might be or what was the nature and extent of exposure is minimal.
[537] There are no substantiated allegations of physical abuse of the mother by the father. I accept, as the more accurate account of the relationship, the earlier comments made by the mother that there was no physical abuse. She has later recanted that statement because it does not fit within the allegations she is now advancing against the father.
[538] Three years later, she believes she was the victim of physical and emotional abuse. I am not satisfied this is an accurate or balanced account of the relationship.
Child Protection Resolution
[539] We have left behind “the tender years doctrine”, where presumptions were made in favour of the mother as primary caretaker for young children or children of tender years.
[540] Our current legal environment presumes a child’s right to be connected in meaningful and safe ways to both parents, without calling for the Courts to assume or impute any preference.
[541] Parents are to be considered equally.
[542] In Divorce proceedings, the Courts are directed to consider in the context of each family, however it is described, which parent will best facilitate supporting contact between the child(ren) and the other parent.
[543] In Child Protection Proceedings, the Court is directed to consider the best interests of the children as it relates to protecting children.
[544] Courts are required to look to each case to determine, without bias or preference, the best interests of the children in the context of the parents and children before them.
[545] This involves an analysis of many factors, well described in case law, none of which establishes a preference by gender.
[546] In this case culture, environment and geography have produced a mix of beliefs and parental practices that clash with the legal reality. There is a fear that the father’s role in the home has placed him in a position of equality, such that the likely outcome of separation would result in a joint custodial order. That was not easily digested by the mother.
[547] This notion of equality and compromise was not compatible within the family structure, where roles were historically defined and the fear, that his position as parent could alter the cultural reality, is incomprehensible to the grandparents and the mother.
Conclusion
[548] The child’s statements in the first joint interview are not necessarily sexual in nature. By the time they are made, there has been significant contamination and questioning. I admit them only to show the nature of the conflict in which this child lives and the manner in which she has been conscripted in the conflict.
They cannot be tendered for the truth of the contents. They cannot be accurately or reliably interpreted. The 2007 and 2008 statement suffer the same fate.
[549] I am satisfied that the Agency has provided proof on the totality of the evidence, on the balance of probabilities, that these children are at continuing risk of emotional harm due to the unresolved conflict between the parents.
[550] I am satisfied that the harm arises out of the now entrenched belief, held perhaps by the mother and, certainly by the maternal grandparents, that the father sexually abused the children.
[551] I am not satisfied that the mother truly believes the father is an abuser. It has become the family position and much time was spent trying to rehabilitate the grandmother’s testimony.
[552] I am satisfied that the father is not a risk to the children. The evidence, in it’s totality, does not support the allegations that he sexually and physically abused the children.
[553] I am further satisfied that the maternal grandparents and the mother are invested in continuing to accuse the father and are unlikely, without professional interference, to cease this harmful exercise.
[554] I am satisfied that the children have been involved in the parental conflict to such an extent that the grandmother and the mother have repeatedly sought medical referrals where the child A., in particular, is exposed to repeated questioning and recitation of her story of abuse, such that she now believes she is a victim of abuse.
[555] I am satisfied that there is no medical evidence that sustains these allegations although, the possibility exists that the child was exposed to repeated sexual questioning and may have been exposed to sexually explicit material.
[556] The evidence does not disclose that the child understands the significance or implications to her of physical and sexually abuse. She simply repeats the terminology and is subject to the continued response of medical personal, the grandparents and the mother. This carries with it the risk of permanently alienating and /or obstructing the father’s role as a significant and valuable parent.
[557] While the mother and maternal grandparents are rigidly focussed on the father as the perpetrator, the risk is heightened that they are unable to protect the child from repeated exposure to other possible explanations.
[558] I am further satisfied that the mother has not accepted the advice of any of the professionals and is creating obstacles to the effective management of this risk. Between the two parents, it is clearly the father who is prepared to facilitate contact between the children and the mother. The mother has shown she is resistant to increasing the fathers’ s contact with his children.
[559] She has evidenced a desire to control his contact and to place extracurricular activities in priority over the father’s role. Her conduct does not demonstrate an ability to enter into a shared parenting strategy.
The Revised Agency Plan of Care - February 11, 2009
[560] The Agency is seeking the discretion to transition the children from the mother’s primary care to the father’s.
[561] The mother is unable and unwilling, at this stage, to cooperate with the Plan of Care to address these concerns.
[562] There is a continuing need of agency intervention to support the children and to address the conflict that has developed between the grandparents and the mother and father. Unchecked, this conflict will continue to escalate and require the chronic intervention of police and agency personnel.
[563] The evidence supports a conclusion that, without agency intervention, the mother and grandparents will continue to alienate the children from their father until he eventually loses any meaningful contact with them.
[564] Significant harm has already been effected on the relationship between the father and children.
[565] This situation requires the continuation of supervision by agency personnel and the provision of services to reduce the level of anxiety experienced by the children and the environment of conflict.
[566] The best interests of these children will be served if meaningful contact between the father and children can be re-established as soon as possible, such that the children are able to develop substantial contact with both of their parents in an environment free of conflict between the grandparents, the mother and father.
[567] At this juncture, the Court has to consider the current situation and the long term goal within the parameters of Section 45 of the Children and Family Services Act. Once the child protection issues are resolved and the Agency can terminate their involvement, the parties will continue with their Divorce proceedings.
[568] A long term view includes Section 16(10) of the Divorce Act which will then apply:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[569] The first disposition hearing began in November, 2008. The mother is focussed on proving the father’s guilt. Thus, she has been unable to cooperate with any attempt to reduce supervision of the fathers’s access.
[570] The protracted nature of the hearing has delayed the first disposition hearing while most of the access supervisors, police, child protection workers , doctors, psychologists and other witnesses are cross examined as to their findings.
[571] Rather than focus on a Plan of Care to bring agency intervention to a halt, the mother has focussed on repairing her mother’s credibility. Choosing this approach also supported her wish to obtain sole custody and maintain control over the father’s access to his children.
[572] The imposition of supervised access on his parents, who were facilitating the father’s access pending a decision, was an attempt to further separate the father from his support system and separate the children from meaningful contact with the paternal grandparents.
[573] At this time, the mother appears to have little insight into her role in the conflict and less insight into the children’s needs, including a need to be connected to their father, as well as their mother, as a fully participating parental figure.
[574] It is equally clear that the father is able to set aside his best interests to address the children’s needs. He has exhibited the patience and insight necessary to accept the counsel of the Agency and therapeutic intervention to remove the children from the conflict and sustain their contact with the mother, despite the sustained effort exhibited by the mother and grandparents to demonize him in the eyes of the children.
[575] He has also been able to identify his weaknesses as a parent and been open to education and assistance is correcting these deficits. D.S. had difficulty engaging with the grandparents and did not always respond with patience at their presence in his life. He has some insight now that likely eluded him early in the relationship. He is, at times direct, some might say abrupt. His efforts to assert his authority over his children were not always delicate. None of this equates to child abuse.
[576] I am aware that the Agency seeks to remove the children from the mother’s primary care and place them with the father. The evidence supports that the mother is difficult to engage with, is resistant to the Agency personnel, demanding of their time and resources and resistant to compromise.
[577] Before separation the status quo was that the parents were both significantly involved in the day to day care of the children. Due to his employment situation, the father had occasion to have more day time contact with the children.
[578] Reintroducing the father now, in a significant and meaningful way, requires professional assistance.
[579] The children, particularly the oldest, may require debriefing sessions to address their anxiety and introduce insight into what is actually happening versus what they believe is happening. The positive nature of their interaction with their father has to be reinforced so as to dispel any notion that they are at risk with him.
[580] The Court’s task is to preserve for these children what can be preserved of their contact with both parents --the best of each of them. The preamble to the Children and Family Services Act states as follows:
Whereas the family exists as the basic unit of society, and it’s well beings is inseparable from the common well being;
And whereas the basic rights and fundamental freedoms of children and their families include a right to the least invasion of privacy and interference with freedom that is compatible with their own interests and of society’s interest in protecting children form abuse and neglect;
And Whereas parents and guardians have responsibility for the care and supervision of their children and children should only be removed from that supervision , either partly or entirely, when all other measures are inappropriate.
[581] The Agency’s plan to relocate the children to the father’s home is based on their belief that the historical conduct of the mother, resisting and frustrating agency intervention, will continue. There is certainly a credible evidentiary basis for that belief.
[582] The evidence supports a conclusion that to date she has not been willing to gain insight into her behavior, I am satisfied that, should she choose to do so, she is capable of change.
[583] Legislation requires permanent resolution one year from the date of this decision. The family conflict that has required child protection involvement must be resolved.
[584] The mother should have the opportunity to gain insight and must show a willingness to jointly parent with the father. This would accord with the objectives stated in the preamble of the Children and Family Service Act before taking the more intrusive measure of removing the children from her care.
[585] It is, however, a reasonable certainty that, if the level of cooperation and compliance does not immediately improve considerably the Agency Plan of Care is the best and most appropriate alternative to address the children’s best interests prior to considering placement with a third party (foster care).
[586] The father has shown an ability, insight and a willingness to step out of this conflict and provide an environment where these two children have two parents peacefully in their lives. He has exhibited growth and improvement in his ability to parent
[587] The plan between now and the final disposition should include:
-An immediate transition to joint parenting, equal time sharing reestablishing the father’s role in their lives for a two week on, two week off period including overnights. This shall begin immediately upon the father being present in the community. Counsel will ensure that this transition is done peacefully;
-An immediate lifting of the supervision of the father’s time with his children.The Agency shall facilitate this and continue to pick up the children and deliver them to the father. He shall be free to return them as agreed between he and the Agency. These transitions shall be peaceful and without unnecessary discussion between the parents while the children are present. The maternal grandparents shall not be present;
-The Agency has the right to supervise and decide on major issues relating to medical and emotional intervention;
- The parents shall be assisted to develop a joint custody strategy regarding decisions relating to the educational and spiritual well being of the children. This shall include extra curricular activities. They have the right to request the parents attend counselling and mediation as they decide what best enables the parents to move forward;
- If they have not done so already, the parents shall attend parent information sessions;
-The mother shall not enroll the children in any activity occurring during the father’s parenting time without his consent and vice versa; the focus must be as a priority on reestablishing the father’s contact;
-In the event they disagree or are unable to arrive at a consensus, the Agency shall have the deciding vote in accordance with the goals of this intervention;
-During that period of time, the contact with the maternal grandparents shall not interfere with the reintroduction of the father;
- Contact with the grandparents shall be on the mother’s time and shall be agency supervised contact once every two weeks. The Agency shall offer to the grandparents educative counselling to assist them during this transition;
-The Agency shall utilize therapeutic intervention such as suggested by the assessors, Ms. Rule and Dr. Hastings, to immediately begin a course of transition moving the children to unsupervised parenting time with the father. Having said this, I remind counsel that Barbara McPherson has already completed with the father the piece referred to in Dr. Hastings report regarding removing from the children the responsibility for parental conflict . This should not be taken as an endorsement to any suggestion that the father is to assume responsibility for abuse not committed by him;
-The assistance of observers shall be available to the father to facilitate this transition. Family members may also be used as agreed upon between the father and the Agency;
-The mother shall have the option of access to counselling services to assist her in gaining insight into her role in this conflict, to aide her, coach her to assist the children to return to a parenting relationship with their father which is aimed at a long term strategy of joint parenting. This shall include an ability to share responsibility and decision making. Her counsellor shall have access to the assessment and any medical reports, as well as this decision;
- The mother shall not introduce any counselling to the children other than as determined appropriate by the Agency in consultation with the father;
-Counselling to assist the parents in co-parenting while separate should be considered and such other counselling as recommended by the Agency;
-Should the maternal grandparents wish to return to unsupervised access, they should have access to therapeutic counselling (short term) as designated by the Agency to address their role in this conflict, educate them and develop a strategy to involve themselves in the children’s lives as grandparents, subject to the rights of both parents. Failing their participation and a positive progress report, the final order will consider a prohibition against unsupervised access;
-The Agency shall consult with both Ms. Rule and Dr. Hartley to address the recommendations provided by both assessors. The Agency shall have the right to designate the appropriate therapeutic intervention, having regard to the availability of resources and the ages and stage of development of the children, subject always to review;
-Time is of the essence here. In the event there is further resistance or non-compliance or resistance with the designation of therapists and /or interference with the immediate and full resumption of the father’s role in the children’s lives, the Agency shall have the right to remove the children from the mother’s home and place them in the father’s primary care with access to the mother as determined by the agency pending variation of the court order;
-The day to day decision regarding the children, subject to Agency directive, shall be with the parent exercising parenting time;
-Neither parent shall remove the children from the jurisdiction of the Court;
-Neither parent shall attempt to obtain other medical or therapeutic intervention, except with the consent of the Agency, in advance, excepting only emergency situations;
-I see no difficulty with allowing the father a vacation trip to * to visit with his parents, after successful reintegration, subject to Agency consent and advising the Agency of his whereabouts, his time of arrival and return. Given the extent of the disruption between the children and his family, normal contact shall be encouraged;
- Any out of jurisdiction trips shall be done only after obtaining Agency consent so as not to interfere with the transition;
- There is no cause to supervise the paternal grandparents with the children;
-The transition from facilitated access, including debriefing, if determined appropriate, shall take place on or before 2 weeks from the date of this decision unless the father and Agency agree otherwise.
[588] Counsel for the Agency shall draft the order.
Justice Moira Legere Sers