SUPREME COURT OF Nova Scotia

Citation: M.Mc. v. S.Mac., 2022 NSSC 153

Date: 20220509

Docket: SFHPSA,  No.  110112

Registry: Halifax

Between:

M.Mc.

Applicant

v.

S.Mac.

Respondent

 

Judge:	The Honourable Justice Cindy G. Cormier
Heard:	November 8-9, 2022, in Halifax, Nova Scotia
Counsel:	Bernard Thibault, Eugene Tan, Ray Kuszelewski, Laura McCarthy, for the Applicant; Self-represented at trial Morgan Manzer, Lauren Murphy, Christopher Robinson, Mitchell Broughton, for the Respondent

 

 

By the Court:

Introduction

[1]             The parties were in high school when they started dating.  They have one child together, V born in May 2017.  V. was approximately 4 and a half years old at the time of trial in November 2021.

[2]             V.’s parents, Ms. Mc. and Mr. Mac. were in an on and off again relationship for 5 years, and they separated a final time in October 2017.  The parties never resided together.  Ms. Mc. acknowledges Mr. Mac. “did spend a few nights with me at my home on occasion after V. was born,” but she suggests he did not assist with any night-time care of V. Ms. Mc. noted that Mr. Mac. declined her parents’ invitation for him to reside with them. V. has always resided primarily with Ms. Mc.  Mr. Mac. suggested that before they ended their relationship he would “often spend the night at Ms. Mc.’s parent’s home with Ms. Mc. and V.”

[3]             Ms. Mc. and V. resided with Ms. Mc.’s mother and her father, until her mother passed away in December 2019. Mr. Mac. has mostly resided with his mother, his mother’s husband, and his grandmother.  For a brief time, Mr. Mac. resided with an intimate partner. 

[4]             Ms. Mc. filed a Notice of Application on August 1, 2018, expressing concerns about Mr. Mac.’s parenting time with V.  Ms. Mc. has argued that the issues she raised were either impacting or had the potential to impact on Mr. Mac.’s ability to parent V.  Ms. Mc. had concerns about Mr. Mac.’s mental health, parenting skills, inconsistent contact with her and with V., failure to consistently inquire about or express concern or interest in V.’s everyday development and her needs, and failure to respond to her requests or directions in relation to the care of V.

[5]             Ms. Mc. requested an order requiring Mr. Mac.’s parenting time to be supervised by her or by another responsible person. She suggested Mr. Mac. have very limited specified supervised parenting time with V. –  no more than several hours a couple of times per week.  She was opposed to any overnight parenting time (supervised or not).

[6]             In June of 2020, after Mr. Mac. had not had in person parenting time with V. for several months, the parties reached a consent agreement on expanded weekend day-time parenting time for Mr. Mac., but Ms. Mc. continued to refuse to allow unsupervised parenting time or overnight parenting time. The issue of overnight parenting time for Mr. Mac. was outstanding and was scheduled to proceed to trial. 

[7]             After agreeing to exercise virtual parenting time with V. March through the end of June 2020, Mr. Mac. had his first supervised in-person parenting time with V. at the end of June 2020 and 2 more in July 2020.  After the third visit, Ms. Mc. reported that she suspected Mr. Mac. had touched V. inappropriately.  Ms. Mc. requested that Mr. Mac.’s parenting time with V. be terminated.  She took the position that it was “unnecessary for Mr. Mac. to be in V.’s life.

Evidentiary issues

[8]             A motion hearing was scheduled April 11, 2019, and the Court ordered the production of relevant portions of Mr. Mac.’s mental health records.

[9]             Mr. Mac. expressed concern about and requested portions of Ms. Mc.’s. affidavit, sworn September 18, 2020, be struck.  A motion was heard on December 8, 2020.  Mr. Mac. argued that Ms. Mc.’s affidavit evidence contained hearsay, oath helping, and speculation, as referenced in his affidavit filed with a Motion to Strike Affidavit Evidence.  An Order was granted striking paragraph 11 of Ms. Mc.’s affidavit.

[10]         The parties consented to allow the business records of the Department of Community Services – Child Protection and the IWK Children’s Hospital records, produced pursuant to Orders for Production to be entered as exhibits at trial.  Ms. Mc. acknowledged she did not provide a copy of any of the records to her expert, Dr. Kiran Pure.

[11]         On November 1, 2021, Ms. Mc. filed a letter with the Court enclosing video evidence. She sought to introduce the video evidence stating in part, “I have video evidence I would like to send in to be used of my daughter V. in court.”  Materials filed late by Ms. Mc. were excluded due to the substantial prejudice to Mr. Mac.

[12]         Evidence of the results of Mr. Mac.’s participation of a polygraph test were not provided to the Court or admitted into evidence and no expert testified.   

[13]         Lay witnesses included Ms. Mc., Mr. Mac., and Mr. Mac.’s mother. Expert witnesses included Dr. Pure and Dr. Kormistova.

Initial request for supervised parenting time 

[14]         Between August 2018 and November 2021, Ms. Mc. raised a series of concerns regarding Mr. Mac.’s parenting time with V.  Ms. Mc. took the position that Mr. Mac. should be given the opportunity to parent V. without the assistance of Mr. Mac.’s mother or anyone else. Ms. Mc. claimed she wanted Mr. Mac. to have all “the space to care for or interact with V.” and to take responsibility for parenting her and to bond with her.

Mr. Mac.’s mental health

[15]         Throughout the proceeding, Ms. Mc. expressed concern about Mr. Mac.’s mental health.  Initially, she stated that Mr. Mac. had been diagnosed with “bipolar disorder and schizophrenia” and that he had been “in and out of hospital over the years since the beginning of our relationship.”  Ms. Mc. stated that while they were in a relationship, Mr. Mac. did not take his medication consistently, and he tried to harm himself, including an attempted suicide in 2012, reportedly driving his vehicle into a telephone pole.  Ms. Mc. stated that she had observed Mr. Mac. when he was suffering from “mental distress” and when he was exhibiting symptoms of “mania, depression, or schizophrenia.”

[16]         Ms. Mc. reported that Mr. Mac. had been hospitalized due to concerns related to his mental health, including at the following institutions: the Colchester East Hants Centre in Truro; the Abbie J. Lane Memorial Hospital in Halifax; and the EC Purdy Building in Dartmouth, where she stated he had been admitted just prior to V’s birth.

[17]         Ms. Mc. expressed concern that “he does not always seek medical assistance.”  She observed that when Mr. Mac. “starts having symptoms of mania, he becomes very hyper and starts talking about God and he sees ‘signs’.” She stated that “he goes through themes where one time he thought he was a superhero, and another time he was God or sent by God.”

[18]         After reviewing Mr. Mac.’s mental health records produced pursuant to an Order for Production granted in April 2019, Ms. Mc. suggested that despite his reported remission, she still had ongoing concerns related to Mr. Mac.’s “history of suicide ideation and manic and depressive episodes.” Ms. Mc. also expressed concern regarding Mr. Mac.’s disclosure that “loud noises and crowds” were triggers for him.

[19]         Mr. Mac. explained that he was diagnosed with bipolar type 1 when he was 18 years old, and he was last hospitalized in March 2017, before V.’s birth.  He stated that he had never been diagnosed with schizophrenia.  He explained that since 2015, he had been seeing Dr. Tanya Pellow every three months and Rebecca Upshall RN on a weekly basis.

[20]         He acknowledged he had stopped taking his medications several times due to side-effects he experienced; however, he suggested he had been “consistently following a strict medication plan since V. was born.  He explained that “within the next two weeks I will [sic] taking my medication by needle to ensure that I do not forget my medication.”  Mr. Mac. later advised that he began “taking injection medication in April 2019.” 

[21]         Mr. Mac. argued that his “mental illness does not affect [his] ability to understand parenting decisions.”  He stated “I am fully competent to make parenting decisions relating to V.  I believe that having a strong relationship with V. supports my remission and recovery.”  Mr. Mac. provided two letters from his treatment team members confirming his diagnosis and that he is in remission.

[22]         On January 18, 2021, Child Protection Services followed up with Mr. Mac.’s treatment team at Connections in Sackville, Nova Scotia. They confirmed his diagnosis of bipolar disorder and confirmed Mr. Mac. was compliant with treatment, there were no medication compliance issues, and that Mr. Mac. had a relapse prevention plan. They advised that Mr. Mac.’s early warning signs included: difficulty sleeping; not eating enough food; “seeing meaning in objects that would impact his life;” not caring about his personal well-being; and being more reckless. They confirmed Mr. Mac.’s relapse prevention plan included:  calling the team at Connections; calling mobile crisis; going to the emergency department; or talking to his family. They confirmed Mr. Mac. has had to enact the plan in the past and they have noted no issues with his follow through.

[23]         Mr. Mac.’s evidence persuades me that since V.’s birth he has been following through with his relapse prevention plan. I find that with the help of his family he has been able to identify when he is struggling and when he needs to seek help. I find that Mr. Mac.’s diagnosis and his history of difficulties prior to V.’s birth do not in and of themselves suggest that Mr. Mac.’s parenting time with V. should be terminated.  The issue of supervision during his parenting time and supervised overnight parenting time will be discussed further in my decision.

Ms. Mc.’s mental health

[24]         The records of the Department of Community Services – Child Protection suggest that Ms. Mc. suffers from “a psychiatric disorder, is mentally challenged, has a gastro-intestinal disorder, and suffers from anxiety.” The impact Ms. Mc.’s challenges might have on her parenting of V. were not canvassed during the ongoing proceeding or at trial.  I understand Ms. Mc. continues to live with and receive support from her father, although her mother passed away in 2019. 

Mr. Mac.’s parenting skills

[25]         Ms. Mc. initially suggested Mr. Mac. did not have sufficient parenting skills or sufficient parenting knowledge to meet V.’s everyday care needs without supervision and support, and he could not manage to care for V. overnight. 

[26]         Ms. Mc. stated that all of Mr. Mac.’s parenting time had been supervised by her while she provided for most of V.’s needs. Ms. Mc. referenced having left Mr. Mac. with V. on one occasion in August 2017, and she had noted “he did not cope well with V.’s cries and needs.  She claimed “he did not feed or change V. while [she] was gone. [She] was gone for about an hour.”

[27]         Ms. Mc. claimed that when Mr. Mac. visited V. at her home, he would seek Ms. Mc. out when V. needed to be changed. She stated: he has never fed her; changed her diaper; given her a bath; or provided her nap-time routine. In addition, she expressed concern that: he responds negatively to V. when she cries or is upset; he does not attempt to comfort V.; he refuses to change or feed V.; his mother often intervenes, controls, or dominates the visits so Mr. Mac. is not required to parent; and Mr. Mac. provides V. with his phone instead of playing with her.

[28]         Mr. Mac. claimed that he had had unsupervised parenting time with V. “before the parties broke up.” He suggested it was Ms. Mc. who “unilaterally imposed a condition that all his parenting time would be supervised by her in her home,” and that he “complied with her request” to be able to spend time with V. 

[29]         Mr. Mac. acknowledged he was initially “nervous to feed and bathe V.”  At trial Mr. Mac. stated that he had “worked hard to be more hands on.” He described his relationship with V. as “a very playful relationship” and suggested “it has grown significantly over the past year.”  He indicated “he would be more comfortable parenting V. without Ms. Mc. watching over him.” He reported that in February 2019, he had successfully completed the Handle with Care parenting course in Sackville.

[30]         In 2019, Ms. Mc. expressed concern that Mr. Mac. had requested parenting time which fell during V.’s naptime. Ms. Mc. suggested that at that time V. was napping for two to three hours per day, between 12:30 and 4:30, eating dinner at 5:00, and that her bedtime routine started shortly after that time.

[31]         In his affidavit filed in May 2019, Mr. Mac. sought supervised parenting time on specified Saturdays and Sundays between 1:00 pm and 4:00 pm.  On October 8, 2019, I granted an Order providing Mr. Mac. with specified parenting time every Saturday between 9:00 am and 12:00 pm and every second Sunday between 9:00 am and 12:00 pm.  I agreed with Ms. Mc. that Mr. Mac.’s parenting time with V. should be arranged at a time when V. is not overtired and does not require a nap.

[32]         I find Ms. Mc. has been V.’s primary parent throughout V.’s life. I accept that Mr. Mac. was initially more comfortable allowing others, such as Ms. Mc. and his mother, to take a lead role providing care for V. while he was exercising his parenting time.  I also accept that Ms. Mc. was the parent who was responsible for developing and maintaining a consistent routine for V.

[33]         Following Ms. Mc.’s court application in August 2018, while the parties were subject to the scrutiny of the Court, Mr. Mac. did participate in programming designed to help him develop the parenting skills necessary to provide the level of care which would be expected of any parent in a caregiving role. In his affidavit sworn August 12, 2020, Mr. Mac. suggested I have “learned to give V. my full attention while caring for her…”.  I accept that Mr. Mac. has improved his parenting knowledge and skills, and I am reassured by examples of his willingness to accept feedback and support from Ms. Mc. and from his family.

Ms. Mc.’s suggestion Mr. Mac. was inconsistent in exercising parenting time

[34]         Ms. Mc. suggested Mr. Mac. had not maintained consistent contact with her or with V. and he had not consistently inquired about V.’s physical and emotional development. She also suggested that after their relationship ended, Mr. Mac.’s parenting time with V. was limited due to Mr. Mac. experiencing suicidal ideation. 

[35]         Mr. Mac. stated that:

V. used to visit my home frequently until Ms. Mc. and I broke-up in November 2017.  Generally, Ms. Mc. was present, however, there were times when I was unsupervised with V. After we broke up, access at my home became less frequent despite my requests. All of my other visits have taken place at Ms. Mc.’s home with her present.

[36]         As noted previously, in August 2018, Ms. Mc. was seeking, among other requests a term in an order specifying Mr. Mac.’s parenting time would be supervised by her, or by another responsible adult twice per week, for one hour each time. She also requested sole custody and decision-making responsibility. 

[37]         In his affidavit sworn April 2, 2019, Mr. Mac. expressed concern that he had only had two supervised visits per week, for 1 to 3 hours duration at Ms. Mc.’s home since the parties separated on or about November 2017.  He argued that he was never inconsistent with trying to exercise his parenting time with V., but that Ms. Mc. limited his parenting time and at times she denied him parenting time for no valid reason.

Mr. Mac.’s claim that Ms. Mc. denied his parenting time with V. in February 2019

[38]         Mr. Mac. stated that Ms. Mc. refused to allow him parenting time in February 2019.  He explained that he had been hospitalized February 3 through 12, 2019, following a fainting spell.  He reported that the fainting spell was related to complications with the “common cold” and that he was not hospitalized due to any mental health concerns.

[39]         Mr. Mac. explained that Ms. Mc. refused to believe his hospitalization was not related to ongoing mental health issues. Mr. Mac.’s mental health records were released pursuant to an Order for Production granted in the Spring of 2019.  The records confirm Mr. Mac. was not hospitalized in February 2019 due to mental health issues.  Mr. Mac. has since provided evidence that he continues to actively address his mental health issues through treatment with the goal of avoiding any relapse.

[40]         Although Ms. Mc. did not have Mr. Mac.’s mental health records in February 2019, Mr. Mac.’s mother had been attending his parenting time and Ms. Mc. was also present for much of his parenting time. There is insufficient evidence for me to conclude that due to any mental health symptoms Mr. Mac. has ever behaved inappropriately while in V.’s presence.  I find that given the supervised nature of Mr. Mac.’s parenting time, Ms. Mc. unreasonably withheld parenting time from Mr. Mac. in February 2019.    

Mr. Mac.’s claim that Ms. Mc. denied his parenting time with V. April 9, 2019 – May 14, 2019

[41]         Ms. Mc. has suggested Mr. Mac. was inconsistent with contacting her to exercise parenting time with V. between April 9, 2019 and May 14, 2019.  She stated that Mr. Mac. had not contacted her between April 12, 2019 and May 17, 2019.

[42]         In his affidavit sworn May 14, 2019, Mr. Mac. stated that he had not had parenting time with V. after April 9, 2019, when he and his mother saw V. at Ms. Mc.’s home. 

[43]         Mr. Mac.’s mother swore an affidavit and she stated that she had attended parenting visits with Mr. Mac. at Ms. Mc.’s home in April and May 2019, and that on one occasion she arranged to have Ms. Mc. bring V. to her sister’s home. She noted that she had only ever had one visit with V. when Ms. Mc. was not present and she babysat for the parties.

[44]         Mr. Mac. stated that after the motion hearing (to obtain copies of his mental health records) was held on April 11, 2019, “I have become increasingly uncomfortable having access in Ms. Mc.’s home and believed it is inappropriate for V. to be placed in conflict between Ms. Mc. and I.”  Mr. Mac. explained that since April 11, 2019, “I have requested, through counsel, to have access with V. in my own home supervised by my mother and/or supervised access through Veith House.”  Mr. Mac. indicated that he intended to “gradually increase [his] supervised parenting with V. over the summer of 2019 to allow her to become comfortable while in [his] care.”

[45]         I find that Mr. Mac. was attempting to secure more meaningful parenting time with V. in an appropriate manner.  There is no evidence to suggest that Mr. Mac. has criticized Ms. Mc., has expressed anger, has become volatile, or has failed to respond to any of Ms. Mc.’s concerns.  Mr. Mac. has provided evidence of his participation in and/or engagement in a parenting skills programming (which included information about children who may develop symptoms of bipolar) and his ongoing relapse prevention treatment. 

[46]         Given the supervised nature of Mr. Mac.’s parenting time with V. and the supports he has had in place with his mother, his mother’s husband, his grandmother, and his treatment team, there was no good reason why Ms. Mc. denied him parenting time supervised by his mom at his mother’s home. I conclude that in April and May 2019, Ms. Mc. unreasonably denied Mr. Mac. supervised parenting time with V. as requested by him.

[47]         Ms. Mc. did not provide sufficient reasons to explain her refusal to allow Mr. Mac. to have supervised parenting time, supervised by someone other than her, including his mother or another.  Mr. Mac. was not obligated to continue to accept only what Ms. Mc. was prepared to offer.  Ms. Mc. was obligated to be reasonable when considering Mr. Mac.’s requests, and I find that she did not take a reasonable position regarding Mr. Mac.’s reasonable request for his mother to supervise his parenting time with V.

[48]         On June 20, 2019, an interim hearing was held.  An Interim Order was granted providing Mr. Mac. with supervised parenting time, supervised by his mother: on Saturday June 22, 2019, from 9:00 am to 12:00 pm; on Saturday June 29, 2019, from 9:00 am to 12:00 pm; every Saturday 9:00 am to 12:00 pm in July 2019; in August, September and October 2019, every Saturday from 9:00 am to 12:00 pm, and every second Sunday 9:00 am to 12:00 pm. There was an expectation that Mr. Mac.’s mother would advise Ms. Mc. of any symptoms Mr. Mac. was exhibiting and Ms. Mc. was entitled to provide transportation for all Mr. Mac.’s parenting time with V.  The Order as issued on October 8, 2019.

Mr. Mac.’s claim that Ms. Mc. denied his parenting time with V. between December 22, 2019, and January 21, 2020

 

[49]         On October 31, 2019, the parties appeared for a court conference.  Mr. Mac. was not represented by legal counsel at that time.  He advised that he had moved out of his mother’s home and had been living with his “now ex-girlfriend.” He stated that he was “stressed out as his father was diagnosed with dementia.”  The Court advised Mr. Mac. that he should continue to advise his mother and Ms. Mc. when he is feeling unwell.  He confirmed he was “well enough” to see V.

[50]         Ms. Mc. stated that on December 19, 2019, Mr. Mac. reported to her that he was “unwell” and requested access be discontinued. Ms. Mc. explained that she took V. to visit Mr. Mac.’s mother on December 22, 2019, believing Mr. Mac. was at work, but he arrived home. She expressed concern that Mr. Mac. saw V. at that time, given that he had previously reported to her that he was feeling unwell. 

[51]         As noted previously, there is no evidence that Mr. Mac. has ever been unable to manage his symptoms while in V.’s presence.  In addition, with both Ms. Mc. and Mr. Mac’s mother present, I am not convinced that the situation described by Ms. Mc. placed V. at risk.

[52]         On January 21, 2020, the parties appeared for a further court conference. Mr. Mac. advised the court that Ms. Mc. had refused to re-start his court ordered parenting time when he contacted her on or about December 22, 2019, to advise her he felt well enough to see V. again.

[53]         As an explanation, Ms. Mc. alleged that she had denied Mr. Mac.’s parenting time because she believed Mr. Mac. had been involved in a car accident while he was under the influence of alcohol.  I noted that there were safety measures in place with Ms. Mc. providing all transportation for V. to and from Mr. Mac.’s parenting time and Mr. Mac.’s parenting time being supervised by his mother. I directed Ms. Mc. to file an affidavit explaining why she had not followed the interim order provisions related to Mr. Mac.’s specified parenting time for the period between December 22, 2019 and January 21, 2020.

[54]         I directed that she provide affidavit evidence to support any reasonable belief she may have had that V. was placed at risk by Mr. Mac.  I explained that until the matter could be heard, she was directed to follow the interim parenting order specifying Mr. Mac.’s parenting time.  Ms. Mc. failed to file an affidavit as directed.  I would note that at the court conference on January 21, 2020, Ms. Mc. did not communicate any concerns about any observed regression in V.’s development or any problems with V. at all.

[55]         Mr. Mac. denied he was driving while under the influence at any time and he denied that he had been charged with impaired driving.  In addition, he objected to Ms. Mc. withholding his parenting time on V.’s last birthday and at Christmas. In response to Ms. Mc.’s refusal to restart his parenting time after he had communicated to her on or about December 22, 2019 that he wished to restart it, he suggested he was no longer wiling to disclose to Ms. Mc. any information about his mental health status for fear she would refuse to restart his parenting time after any disclosure from him.

[56]         Mr. Mac. followed the Court’s direction and clearly considered V.’s best interests by advising Ms. Mc. that he was feeling unwell on or about December 19, 2019. He subsequently reached out to Ms. Mc. to advise her that he was ready to restart his parenting time with V. She failed to do so, thereby discouraging a continued open line of communication from Mr. Mac.

[57]         Protective measures have always been and continue to be in place for Mr. Mac.’s parenting time with V.  I find that between December 22, 2019, and January 21, 2020, Ms. Mc. unreasonably withheld Mr. Mac.’s parenting time. 

[58]         Even if Ms. Mc. suspected Mr. Mac. had been drinking and driving (in this case she submitted no evidence to support a finding that he was, although she was directed to file an affidavit outlining her reasonable beliefs), Ms. Mc. does not have the authority to punish Mr. Mac. by withholding his parenting time with V. unilaterally.  Each time Ms. Mc. denied Mr. Mac.’s parenting time, she did so in contravention of an order specifying his parenting time.  Ms. Mc. was not entitled to dispense with Mr. Mac.’s right to be heard by the Court before any decision was made to further limit his parenting time with V.  

Refusal to restart parenting after Covid 19 restrictions were reduced

[59]         Mr. Mac. acknowledged that during the “peak of the Covid 19 restrictions,” the parties agreed his parenting time with V. would be via video calls. Ms. Mc. suggested that Mr. Mac. failed to participate in video calls on March 18 and 19, 2020, and on April 11 and 12, 2020, but that “after some discussion, there was increased contact between May 2 and 24, 2020.” I accept that Mr. Mac. missed videoconferencing calls with V. as indicated by Ms. Mc.  I am unclear about the reasons for Mr. Mac. missing those visits, or whether he provided notice to Ms. Mc. in advance. I suspect he did.  

[60]         Mr. Mac. reported, and Ms. Mc. did not deny, that when Mr. Mac. was late for a call on May 16, 2020, Ms. Mc. refused to allow him to speak with V. that day. Ms. Mc. did not state what Mr. Mac.’s reason was for being late or why she could not accommodate him on that day.  I find that with very few exceptions, Mr. Mac. has shown he was interested in having parenting time with V.

[61]         Mr. Mac. participated in most virtual parenting visits scheduled with V. throughout March, April, May, and much of June 2020. Any parenting time, virtual or otherwise, is important. Ms. Mc. should always ensure V. is present for Mr. Mac.’s parenting time and Mr. Mac. should ensure he attends all his parenting time unless he is unwell.  Mr. Mac. should always give Ms. Mc. as much notice as possible if he is unable to parent V. at his scheduled time.  

[62]         Ms. Mc. stated that in or around May 30, 2020, Ms. Mc. arranged a “social distancing visit” between Mr. Mac. and V. and she was disappointed Mr. Mac. stayed only 90 minutes.  She noted that Mr. Mac. subsequently requested a return to virtual parenting time.  I find that when restrictions lessened in late May or early June 2020, the parties had difficulty working together to provide V. an opportunity to have meaningful contact with Mr. Mac.  Mr. Mac. indicated that he was disappointed that Ms. Mc. would not “bubble” with his family.  Ms. Mc. argued she could not “bubble” with his family as she had been told he had “bubbled” with his girlfriend.

[63]         Ms. Mc. in fact refused to restart Mr. Mac.’s in person supervised parenting time when he requested her to do so on June 6, 2020, and again on June 13, 2020.  Given the guidelines in place to help families facilitate court ordered parenting time during Covid 19, I find Ms. Mc. unreasonably refused Mr. Mac.’s in-person parenting time.

[64]         On June 10, 2020, the parties appeared before me at a court conference. They suggested the only outstanding issue was Mr. Mac.’s parenting time. Mr. Mac. once again expressed concern that Ms. Mc. was refusing to “bubble” with his family. 

[65]         On or about June 20, 2020, the parties appeared before another judge, and they agreed to terms which were included in a Consent Interim Order which was later issued on July 15, 2020.

[66]         On June 23, 2020, the parties appeared before me for a court conference. They confirmed their agreement to expand Mr. Mac.’s parenting time to every Saturday commencing June 27, 2020, from 9:00 am to 6:00 pm. and every second Sunday from 9:00 am to 1:00 pm commencing June 28, 2020. There was no agreement regarding overnight parenting time for Mr. Mac. with V., and the parties requested the matter be scheduled for a hearing.

[67]         Mr. Mac. had three supervised parenting visits with V. The first visit was on June 27, 2020, (after which Ms. Mc. alleged V. suffered heat stroke and was sick for four days).  Mr. Mac. had two other supervised parenting times until all his supervised parenting time was terminated after the visit which occurred on or about July 18, 2020.

Investigation following the termination of Mr. Mac.’s parenting time after July 18, 2020

[68]         Ms. Mc.’s next affidavit was filed in August 2020. The only concern she raised about Mr. Mac. or V. was a suggestion that V. had experienced heat stroke after she attended only a portion of an extended supervised parenting time with Mr. Mac. on or about June 27, 2020. I understand Ms. Mc. took V. home early on that date. Mr. Mac.’s mother swore an affidavit and she denied V. was in the sun for any extended period. 

[69]         Mr. Mac. indicated that he had suggested Ms. Mc. take V. to be examined at the hospital if she was concerned, and she failed to do so.  Given that this matter was before the Court, if Ms. Mc. believed V. had suffered heat stroke through the neglect of Mr. Mac. or his mother, it was incumbent upon her to seek out a medical opinion and to provide a report for the Court.  Ms. Mc. had more than a year – between June 27, 2020, when the incident allegedly occurred, and trial in November 2021 –  to file any medical evidence. I understand that despite her stated concerns about V., that Ms. Mc.  did not take V. to a hospital.  Ms. Mc. did not provide any medical evidence to support her claim that V. was sick for four days following her visit with Mr. Mac.

[70]         Children thrive when circumstances are predictably consistent. Children can also rise to the occasion when they are provided with the reassurance and support of all the important adults in their lives.  Although I find there have been times when Mr. Mac. may have felt unwell and he felt the need to focus on his own mental health rather than on V., there is no evidence to suggest he has ever or would ever place V. in harm’s way.

[71]          I find Ms. Mc.’s decisions to limit Mr. Mac.’s time with V., especially since he responded to her concerns appropriately, were not supported by any credible evidence of an apparent or real chance of harm to V.  I find Ms. Mc.’s refusal to allow Mr. Mac.’s mother to act as a supervisor for Mr. Mac.’s daytime parenting time was unreasonable.

[72]         I accept Mr. Mac.’s evidence over Ms. Mc.’s evidence regarding V.’s visit on June 27, 2020. Ms. Mc. has failed to prove to me that Mr. Mac. or Ms. Mac. were responsible for V. becoming sick, or to even prove that V. was ill on the day of the visit or as she suggested “for four days following her visit” on or about June 27, 2020.

Ms. Mc.’s suggestion that Mr. Mac. failed to respond to her requests

[73]         Ms. Mc. expressed concern about Mr. Mac.’s failure to respond to her requests including but not limited to: child proofing his mother’s/grandmother’s home due to her concerns V. might ingest or choke on small items; continuing to text her late at night or very early in the morning despite her requests that he not do so; failure to ensure his mother’s dogs were not present when V. visited; and as noted above, his failure to satisfy her that he was adhering to Covid 19 restrictions.

[74]         Ms. Mc. had also raised a concern about Mr. Mac.’s mother’s dogs.  I do not find fault with Ms. Mc. for raising the concern.  I note that it was not V. who had ever been harmed by a do; however, I find Ms. Mc. had no reason to believe Mr. Mac. and his mother would not ensure V.’s safety, even if they did not put in the measures that Ms. Mc. felt were necessary.  I find Mr. Mac. provided a viable solution, suggesting they be contained behind gates.

[75]         Ms. Mc. contacted the Department of Community Services – Child Protection to report various concerns about Mr. Mac.’s intimate partners being present during his parenting time with V.  In January 2019, she reported to Department of Community Services – Child Protection that she had information to suggest Mr. Mac. and his girlfriend were having sex while V. was unsupervised.  The referral information was not investigated.  In August 2019, she made another referral expressing concern that although Mr. Mac. had stated to her that he did not want V. spending time with his girlfriend (without providing any reason for his position), that she had later observed that his girlfriend was at his mother’s home during his parenting time with V.  The matter was not investigated.

[76]         Ms. Mc. did not provide additional information to this Court related to the above noted concerns.  I am unclear whether Ms. Mc. spoke with Mr. Mac. regarding the concerns she had related to his intimate partners or if she told him she had contacted the Department of Community Services – Child Protection to make referrals about him.

[77]         None of the above-noted concerns were sufficient for Ms. Mc. to unilaterally refuse to allow V. to have supervised visits with her father, especially while he was being supervised by V.’s paternal grandmother. Issues raised such as safety proofing, failure to abide by requested texting times, and failure to restrict V.’s exposure to family pets, should never have been reported to authorities or resulted in a denial of Mr. Mac.’s parenting time, even if Mr. Mac. chose not to comply with her request or to address it in his own way.

[78]         Later in the proceeding, Ms. Mc. raised a concern about Mr. Mac. not adhering to Covid 19 restrictions. I will revisit the issue of Covid 19 restrictions later in my decision. I would note that between March of 2020 and June of 2020, Mr. Mc. Switched to virtual parenting time with V. in response to Ms. Mc.’s concerns, and he did so despite the exceptions which existed for families charged with facilitating court ordered parenting time for a child.

Conclusion

[79]         Based on the number and type of complaints raised by Ms. Mc. and based on a report included in the business records of the Department of Community Services – Child Protection file that Ms. Mc. has “a psychiatric disorder, is mentally challenged, has a gastro-intestinal disorder, and suffers from anxiety,” I have concerns about Ms. Mc.’s: level of understanding; her ability to recognize when V. is at risk; and her ability to appropriately respond to any real risk.  I also have significant concerns with respect to what if any impact Ms. Mc.’s reactions or responses to any perceived risk to V. has had on V. and will continue to have on her.

Ms. Mc.’s initial concern that Mr. Mac. was not providing hands on care for V.

[80]         Ms. Mc. stated that during her relationship with Mr. Mac. and for “a few months following the end of their relationship” she had encouraged V.’s relationship with Mr. Mac., his mother, his grandmother, and at one time with his father.  Indicating that she “routinely went to Mr. Mac.’s grandmother’s home to visit with her and with V.”  Ms. Mc. suggested that when Mr. Mac. “began seeing a new partner, he asked me to stop visiting his grandmother’s home.” My understanding is that Mr. Mac. preferred to have his parenting time with V. without Ms. Mc. present.

[81]         As noted previously, the parties ended their relationship in October 2017.  It is unclear when Mr. Mac. “began seeing a new partner,” but Ms. Mc. made her application to this Court in August of 2018. In her affidavit filed on July 27, 2018, Ms. Mc. stated “after October 2017 to present, Mr. Mac. has been visiting V. approximately two times per week and is currently visiting V. on Tuesdays and Thursdays for approximately one hour at a time.”

[82]         Mr. Mac. and his mother first filed affidavits in April 2019 suggesting Mr. Mac.’s parenting time with V. take place at his mother’s house without Ms. Mc.  At that time Ms. Mac. swore an affidavit indicating she had been attending all of Mr. Mac.’s parenting time and she was prepared to continue to supervise Mr. Mac. and to lock up her dogs.

[83]         In her affidavit filed in June 2019, Ms. Mc. confirmed that Mr. Mac.’s mother was “routinely present for Mr. Mac.’s visits” with V.  She then suggested that Mr. Mac.’s mother was “not a suitable supervisor for Mr. Mac.’s parenting time for the following reasons:
Ms. Mac:

(a)              failed to protect V. in the past (referring to a period before June 2019, and assuming the reference was in relation to Ms. Mac’s dog “snarling and snaping at V.” subsequent to Ms. Mac.’s dog having bitten a family member):

I find there is no evidence V. was harmed. Ms. Mac. had agreed to mitigate the risk of potential dog bite by locking up her dogs, and subsequently Mr. Mac. suggested they would use gates to contain the dogs.

(b)             protects Mr. Mac. first by minimizing his mental health issues;

I find there is no evidence that while in the presence of V. Mr. Mac. has ever presented in a manner which could harm V. in any way.

(c)              requested Mr. Mac. have care of V. while he was in the middle of a mental health crisis and was unstable;

Ms. Mc. is aware of the evidence presented regarding Mr. Mac.’s remission, his treatment team, and his relapse prevention plan.  In addition, there is no evidence before the court to suggest that Mr. Mac.’s mother cannot ensure or will not ensure V.’s safety if Mr. Mac. does experiences a mental health crisis or presents as “unstable.”

As will become evident in the next point of concern raised by Ms. Mc.: on the one hand Ms. Mc. suggests Mr. Mac.’s mother has placed V. at risk of harm but in the alternative, she has suggested that Mr. Mac.’s mother takes control of V. and that she cares for V. during Mr. Mac.’s parenting time.

(d)             treats Mr. Mac. like a child and does not require him to take responsibility for caring for V.;

As noted above, this argument runs counter to the argument that Ms. Mc. advances in (c), suggesting Mr. Mac.’s mother would not intervene or become involved to ensure V.’s needs were met, regardless of Mr. Mac.’s presentation on any particular day.

(e)              she has supported Mr. Mac.’s decision to cease prescribed medications in the past and has failed to monitor his medication use when directed to by Mr. Mac.’s health care team; and

Mr. Mac. acknowledged he has stopped taking medication in the past. He subsequently arranged to receive his medication by injection starting in April 2019, “so he would not forget.”

(f)               She has withheld information from [Ms. Mc.] about Mr. Mac.’s mental health status so Mr. Mac. could have parenting time with V.

Without further expert evidence regarding any risk Mr. Mac. would pose to V. if he had a “mental health crisis” or was “unstable”, it is difficult to fault Ms. Mac. for encouraging Mr. Mac.’s ongoing and consistent parenting time with V. 

In addition, I find that after Mr. Mac. was ordered to provide Ms. Mc. with his mental health records (April 2019) and he was subsequently ordered to let Ms. Mc. and his mother know if he was well enough to have visits with V., that he did so. 

The problem arose when Ms. Mc. refused to re-start his parenting time (December 22, 2019 – January 21, 2020) when he advised her that he was able to see V. again.  In any event, there is no evidence before me to suggest that Mr. Mac.’s family cannot manage any crisis or take over the primary supervision or care of V. during Mr. Mac.’s parenting time if Mr. Mac. is unwell.

Request for termination of Mr. Mac.’s parenting time following Ms. Mc.’s allegation of sexual interference

[84]         On or about July 18, 2020, Ms. Mc. changed her position from requesting that Mr. Mac.’s parenting time with V. be supervised to requesting that Mr. Mac.’s parenting time with V. be terminated forever. Given the history of this matter, it is of note that Ms. Mc. changed her position shortly after she recognized that Mr. Mac. was continuing to seek expanded parenting time with V.  On June 20, 2020, the parties agreed to the terms included a Consent Interim Order, including that V. would have her first in person parenting visit with Mr. Mac. since Covid restrictions were initiated in March 2020.

[85]         The expanded parenting time began on June 27, 2020, expanded from the previous time frame of 9:00 am to 12:00 pm, to 9:00 am to 6:00 pm.  I understand Ms. Mc. ended V.’s visit early alleging V. had “heat stroke.”  She subsequently provided no evidence to support her claim.

[86]         Following Mr. Mac.’s final visit with V. on July 18, 2020, Ms. Mc. reported that while she was bathing V., that V. presented with redness or soreness in her vaginal area and Ms. Mc. asked V. if someone “touched her down there.”  Ms. Mc. reported that V. had responded “daddy.”

[87]         Ms. Mc. has testified that she had “previously made a doctors appointment for V. on July 14, 2020, as V. had begun to ‘wet’ herself after being successfully ‘potty trained.’ It is unclear whether V. was scheduled to see a doctor on July 14, 2020, or whether Ms. Mc. had called to make an appointment for V. on that day.  There is no independent evidence before me confirming that Ms. Mc. raised any such concerns with V.’s doctor, querying any medical explanation for V.’s discomfort, or arranged any medical testing prior to Ms. Mc. asking V. if she had been touched and thereby suggesting to V. that someone touched her inappropriately and this may be causing her discomfort.

[88]         Mr. Mac.’s parenting time with V. was scheduled until 6:00 pm on July 18, 2020. Subsequently Ms. Mc. indicated that V. was experiencing some vaginal discomfort, and Ms. Mc. stated that she observed redness in V.’s vaginal area, which apparently prompted Ms. Mc. to ask V. “if somebody had touched her vagina.”

[89]         I am concerned that Ms. Mc.’s fist instinct in response to V.’s reported soreness or discomfort (combined with her suggestion that V. was experiencing incontinence and/or difficulty sleeping for a period), was not to follow up with the doctor’s appointment she had reportedly scheduled or try to arrange an appointment sooner, but instead she asked V. if someone had touched her vagina.  The question posed by Ms. Mc. suggests to V. that someone touching her vagina could be the cause of any redness or discomfort.    

[90]         Ms. Mc. claimed that on July 14, 2020, she had made an appointment for V. to see her family doctor as V. had been exhibiting “redness” and “irritation” in her vaginal area, and V. was showing some regression in her toileting behaviour.  Given the history of Ms. Mc. repeatedly raising many, what I now find to be unsubstantiated and meritless. concerns about Mr. Mac., I find it is concerning that Ms. Mc. did not provide any independent evidence confirming she had contacted V.’s doctor’s office on July 14, 2020, or any evidence that she had previously sought a medical opinion about any possible medical, emotional, or developmental explanation for V.’s alleged presentation, behaviour, or regression. 

[91]         I would note that during the period when Ms. Mc. claims V. began showing some regression (between the summer of 2019 and the summer of 2020), that V. was experiencing some very significant life changes.  Mr. Mac. began having supervised parenting time at his mother’s home, V.’s maternal grandmother (who V. had lived with her entire life) passed away in December 2019, V. was introduced to Mr. Mac.’s new intimate partner(s), Ms. Mc. began denying V.’s father’s parenting time in or around December 2019 through to January 21, 2020, and life as we knew it changed dramatically in response to Covid 19.  There is no evidence that other explanations were fully considered if in fact V. was showing some regression, acting out behaviourally (her therapist was unaware that Mr. Mac. had been diagnosed with bipolar), and V.’s family doctor did not testify about any possible medical explanations for any redness or discomfort if in fact there was any (IWK examination on July 18, 2020, was “unremarkable”).

[92]         Ms. Mc. does not appear to have an understanding and she does not show any appreciation for the potential pitfalls of investigating alleged sexual abuse in young children.  She continues to videotape V.’s alleged disclosures.  She does not accept that the initial investigation was contaminated, and that any further disclosures by V. (based on the same evidence/evidence existing before the closed ended questions were asked) is unreliable.  Ms. Mc. does not appear to understand why a closed ended question may have potentially led V. to respond in a manner consistent with Ms. Mc.’s expectations (as suggested by the question itself). 

[93]         Due to V.’s age and her stage of development, any person speaking with V. should have ensured they asked open ended questions which would not lead V. to respond in a certain manner.  If V. had made a “spontaneous utterance”, then professional interviewers would have been relied upon to follow up, with the expectation they would not prompt V. to provide any particular response.  V.’s interpretation of what may or may not have happened to her could easily have been influenced by the reaction of others.

[94]         It is important to consider that if V. was touched inappropriately, she may have had mixed feelings about what happened to her and/or she may not have understood the significance of what happened.  It is usual practice for anyone questioning a young child about sexual abuse to make every effort not react in an emotional way to any information tending to prove the abuse happened or that it did not happen, so as to avoid encouraging the child to respond based on the interviewer’s reaction.

[95]         Based on Ms. Mc.’s account of her conversation with V., if in fact the conversation took place as Ms. Mc. suggested it did, I find that Ms. Mc. asked closed ended questions that implied the answer or likely influenced V.’s answer.  I find that any information Ms. Mc. obtained from V. was contaminated by Ms. Mc.’s choice of questions and her likely reactions to V.’s responses.

[96]         Ms. Mc. swore affidavits on July 27, 2018 and June 14, 2019, suggesting Mr. Mac. had never spent more than an hour at a time with V. and did not provide sufficient “hands-on care” for V.; August 28, 2020 when Ms. Mc. suggested V. suffered “heat stroke” at her first in person parenting time with Mr. Mac. on June 27, 2020, reporting V. “was sick for four days”; and she stated that Mr. Mac’s mother, Ms. Mac. had informed her that V. had “hit” Mr. Mac. on July 18, 2020, further to him taking her lip gloss from her.  In addition to my concerns about the questions Ms. Mc. may have asked V. after V.’s visit with her father on July 18, 2020, I am concerned that those questions were asked shortly after Mr. Mac.’s supervised parenting time had just restarted and after Ms. Mc. realized the Court would still be considering expanding Mr. Mac.’s parenting time to overnights.

1^st investigation

[97]         On July 18, 2020, Ms. Mc. contacted the Department of Community Services – Child Protection. The report states that Ms. Mc. made a referral suggesting the following:

V. started going to visits with her father, Mr. Mac. a year ago.  She stated that prior to going on access, V. had been toilet trained. Once she started having access with Mr. Mac. V. started peeing in her pants again. She refuses to use the washroom.  She was experiencing soreness in her vaginal area, and she had trouble sleeping.

Ms. Mc. stated that the access visits had stopped throughout the Covid 19 restrictions. Throughout the time frame with no access, V. had no peeing accidents and was comfortable in using the bathroom. Ms. Mc. stated that V. has just started visiting her father again.  V. came home tonight her vaginal area is once again red and sore.  Ms. Mc. asked V. if someone had been touching her vaginal area. V. responded, “daddy touched down there.”  Ms. Mc. will be taking V. into the IWK Emergency Department this evening. I asked Ms. Mc. to contact PART once the child had been examined by a physician. I asked Ms. Mc. when V. was due for her next access visit with Mr. Mac. Ms. Mc. stated that V. is due to see her father at 9:00 am tomorrow morning.

10:46 pm (referencing the time the entry was completed?)

I received a telephone call from Ms. Mc. The physical examination by the IWK physician did not reveal any findings.  The physician has forwarded a referral to the START team for further investigation. I stated that until the Agency receives the finding from the START team at the IWK, that V. is not to have access with Mr. Mac.  I stated that should Mr. Mac. require verification that access can not take place at this time that he is able to contact the Agency.  PART SW.

[98]         The relevant past history was reviewed:

Relevant Past History

January 30, 2019 – referral from Ms. Mc. regarding concerns that while Mr. Mac. (who has bipolar) and his girlfriend are having sex that nobody is watching V. – not investigated.

August 2019 – referral from Ms. Mc. that in the past Mr. Mac. had stated that he did not want his girlfriend around V. and she had seen his girlfriend was present during Mr. Mac.’s last parenting time with V. – not investigated

September 25, 2019 – referral from Ms. Mc. seeking direction about whether she should send V on a visit with Mr. Mac. if he is “not well mentally and using marijuana” – not investigated.

[99]         On July 18, 2020, after contacting the Department of Community Services – Child Protection, Ms. Mc. took V. to the IWK Children’s Hospital.  Ms. Mc. arrived at triage at the IWK Children’s Hospital on July 18, 2020, 9:06 pm (21:06), and V. was first seen by the doctor at about 9:48 pm (21:48).  I have no reassurance that V. was not present while Ms. Mc. advised staff at the IWK of her concerns for V., including but not limited to: triage staff, emergency staff, and START staff.  No IWK staff persons were called to testify.

[100]    The IWK Triage Assessment/Care Initiation Report dated July 18, 2020 (time 21:06), states in part:

 

mom reported that V. has peed pants x 2 today, since being at dad’s house today. Vagina was reddened and looked different mom asked if anyone touched her vagina and she said “yes” and when asked who she said “daddy”.  Under events the report indicated Ms. Mc. reported V. was: drinking well, voiding well. 

[101]    The Triage Assessment Report also includes a notation indicating:

“ongoing for 1 year with dad – peeing pants with going home.”  When only with mom accidents.

[102]    The IWK Emergency Treatment Record for V on July 18, 2020 (time 21:48 - 23:04), indicates:

Re: urinary incontinence

 

Toilet trained x 2 years.  Pre covid hx of intermittent urinary incontinence when home from dad’s house x 3mo no visits at dads and no incontinence.  Past three weekends supervised daytime visits @ dad’s and urinary incontinence when home after visits. 

No blood, no abdominal pain, no discharge, no fever.  Pt c/o “vulvar discomfort” mom put in tub and mom “asked if anyone touched her down there” and she said “yes daddy”.  Mom called DCS who directed pt her to ED.  At dad’s house with paternal grandmother and grandparents.  As per mom, bathroom visits with grandma.  No hx local trauma or injury.  No nausea, vomiting or diarrhea.

 

“Vaginal exam unremarkable, no blood, no discharge”

 

The IWK Consultation Report from START for V. dated July 18, 2020, indicates Ms. Mc. brought V and advised she had a “concern for new urinary incontinence, occurs “only on weekends when home after visits w dad”.  Patient (V) uncomfortable voiding; mom asked if “anyone had touched her down there”, she said “yes daddy”.  Mom called DCS who directed patient to emerg. No physical evidence, no indication for further medical exam by START (specialized medical team responding to child abuse).

…

START - July 20, 2020

Plan – no further medical intervention required at this time.  May refer to therapy if family interested

[103]    Ms. Mc. stated that she had taken V. to the IWK in response to V.’s alleged complaints that she was “sore.” Ms. Mc. indicated she was told an investigation would begin and that she should stop V.’s visits with Mr. Mac. After Ms. Mc. made a referral to the Department of Community Services – Child Protection, and she took V. to the IWK Children’s Hospital to be examined, on or about July 19, 2020, she advised Mr. Mac. that she was suspending his in person parenting time “on recommendation of chid protection services.” 

[104]    On July 23, 2020, Ms. Mc. reported to the Department Community Services – Child Protection that while she and her brother were sitting on the floor with V., V. peed on the floor. Ms. Mc. alleged that when she asked V. why she peed on the floor, V. stated “she was scared to use the bathroom because daddy touches her.”

[105]     On July 27, 2020, V. was formally interviewed by a police officer and a representative from the Department Community Services – Child Protection team. V. reportedly stated to them “daddy touches me” and she used the word “dick” during the interview. The investigators noted that V.’s demeanor did not change when she stated “daddy touches me” and that V. continued to interact in a conversational manner while she made the statement and after she had made her statement about her father touching her.  I understood that V.’s reaction, or non-reaction, was not something the interviewers relied upon when they determined the interview was “inconclusive.” Again, a young child’s reaction is not persuasive in and of itself.  The interviewers suggested that V. was unable to provided “context,” which again, is not determinative.

[106]    Mr. Mac. was questioned and he denied touching V. for a sexual purpose.

[107]    On July 28, 2020, Ms. Mc.’s father reported to a representative of the Department Community Services – Child Protection team that he understood Ms. Mc. was “fighting over custody as she feels that Mr. Mac. cannot handle overnights and weekend visitation.”  He stated that he was concerned “around language V. is using after spending time with her father.”  Mr. Mc. stated that she now uses the term “dick” to refer to a penis.  Again, it was clear to everyone involved in this matter that Ms. Mc. was “fighting for custody” and that she did not feel Mr. Mac. was competent to exercise extended parenting time on weekends or overnight parenting time. 

[108]    There is no doubt that abuse can happen under many circumstances, however, allegations of sexual abuse raised within the context of a “fight” about Mr. Mac.’s parenting time, especially given the circumstances which existed in this matter, including: the timing of the allegation; the circumstances around the alleged disclosure; the inconsistencies and lack of independent evidence with respect to V.’s presenting “symptoms”; the other possible explanations for V.’s “symptoms” or behaviour and lack of thorough consideration of those other possibilities; Ms. Mc’s failure to provide all the relevant information to V.’s family doctor or her therapist; the lack of assurances that V. was not present when Ms. Mc. spoke to others, including health professionals about her suspicions: and Mr. Mac.’s parenting time was supervised and therefore he had less opportunity to be alone with V.  

[109]    On November 1, 2021, Ms. Mc. filed correspondence with the Court stating in part:

….

I have a video of myself trying to get a sweater on V. something I have been trying to work on with her.  V. has said in the past the daddy would cover her face with a sweater in the tent (play tent) and touch her vagina. Also her being afraid to go out because she’s scared he might come to take her.

I have a video at the end of V. crying calming her down, not wanting to put a sweater on and not wanting to go out because she’s scared daddy’s going to take her. She’s having a hard time because he knows where we live.

Video of V. saying she doesn’t like Peppa pig anymore because she would be watching to [sic] while he did things to her.  She hasn’t watched it in a long time and used to live watching it.  It came up on Netflix and she said it.  I had her repeat herself.

As noted previously, the recordings Ms. Mc. attempted to have admitted as evidence were excluded as evidence in trial in November 2021.  Mr. Mac. objected to the recordings being admitted as Ms. Mc. did not comply with filing deadlines.  In addition, to concerns related to timely disclosure, there were obvious concerns related to the reliability of any recordings Ms. Mc. would have submitted to the Court. 

[110]    I am not suggesting that sexual abuse does not happen to children who have parents engaged in litigation related to custody and parenting issues.  I except that it does.  What I am saying is that when parents fail to follow what has commonly come to be accepted as best practices when interviewing young children, that it will likely be impossible to determine whether or not something happened to the child in question.  I am also suggesting that Ms. Mc.’s constant efforts to limit or control Mr. Mac.’s parenting time with V. prior to any allegation, although not determinative, is very worrisome.

[111]    On July 30, 2020, Mr. Mac. received correspondence from Kirsten Hall, BSW, intake social worker with the Department of Community Services – Child Protection, dated July 30, 2020, stating in part:

The investigation was regarding concerns of Risk of Sexual Abuse – Child Exploitation.  These concerns have been found to be inconclusive. There is an expectation that you continue to act as a protective parent and any concerns regarding custody and access are to be directed to Family Court. 

 

In consultation with my Supervisor, KH, I am writing to advise you that the Department will be closing your file.

The file at the Department Community Services – Child Protection closed on August 9, 2020.  The Department of Community Services – Child Protection, police services, and the IWK did not pursue the matter as the investigation was “inconclusive” partly but not solely due to the fact that it was “contaminated.” 

[112]    There is no question in my mind that all the professionals involved in the investigations understand that sexual abuse or sexual interference can and does occur in young pre-school age children without physical evidence being found and that often a child does not react with any great deal of emotion and may present as rather matter of fact about the alleged incident.  I find that those involved in the investigation understood that children who have been sexually abused present in many different ways, both physically and emotionally.

2^nd investigation (conclusion no new evidence justifying further investigation)

[113]    On August 12, 2020, Mr. Mac.’s mother swore an affidavit.  She stated in part:

Mr. Mac. was taking V. to the washroom when she had to go until her mom Ms. Mc. noticed she had a red bum and that he wasn’t wiping her the right way. I have been taking V. to the bathroom since then and I’ve been teaching Mr. Mac. how to do so properly. 

I have been with Mr. Mac. and V. through all the parenting time.  When Mr. Mac. took V. to the bathroom I was always in the connected room and the door was open.

[114]    I understand Mr. Mac.’s mother to have suggested that she had taken over helping V. with her toileting needs before or at least by the time Mr. Mac.’s in person parenting time with V. was reinstated at the end of June 2020.  The IWK record confirms Ms. Mc. understood that V.’s grandmother was helping her.  I am not saying Mr. Mac. had no other opportunity, I am just indicating this was another factor considered by me.

[115]    On August 19, 2020, Dr. MacLeod sent a note to Ms. Mc.’s legal counsel stating:

The above-noted patient presented today requesting that I provide a letter permitting you to speak to me regarding an ongoing legal issue.  Ms. Mc. has provided me with verbal consent to speak to you.

I trust this is satisfactory.  

[116]    Ms. Mc. swore an affidavit on September 17, 2020, and therein she first raised the issue of possible regression in V., stating that V. was experiencing problems with potty training. Ms. Mc. attached the observation note completed by Dr. Wayne MacLeod, on or about August 19, 2020.  His note included two quotes of what V. allegedly stated in his presence:

“that daddy touched her vagina”; and

“daddy touched me in the vagina with his hands and dick”

The circumstances surrounding the apparent “spontaneous utterances” were not described in any detail.  It is unclear who else was present in the room with V. and it is unclear whether anyone asked V. any questions leading up to what I understand Dr. MacLeod was suggesting were “spontaneous utterances”.

[117]    In addition, Dr. MacLeod noted that Ms. Mc. had reported V.:

had recently presented with “new incontinence and fearful behaviour consistent with regression and she isn’t eating very well either.  That word for phallus is not used in mom’s home.”

In this instance it appears Ms. Mc. has suggested that V. was presenting with “new incontinence” presumably on the three occasions her father had parenting time since it restarted in late June 2020.

[118]    Ms. Mc. reported to the Department of Community Services - Child Protection that her family doctor referred V. to Dr. Kiran Pure and Associates. She further reported that V. was first seen by Dr. Kiran Pure on September 15, 2020. Ms. Mc. suggested that Dr. Pure “confirmed to me that V. is telling the truth about the allegations.”

[119]    In September 2020, during V.’s. sessions with Dr. Pure, Ms. Mc. reported that V. had been “potty trained” by he time she turned two (May 2019), but she started “to urinate in her pants/bed in 2019.” Ms. Mc. reported to Dr. Pure that V. often came home from visits with her father “peeing in her pants and with having a red and sore vagina.”

Paediatric Psychology Report completed October 25, 2020

[120]    Dr. Pure reported that Ms. Mc. and V. met with her on September 15 and 24, 2020. Dr. Pure’s Paediatric Psychology Report was completed on October 25, 2020, and states in part: that on September 15, 2020, Ms. Mc. and V. met with Dr. Pure and Ms. Mc. reported that V. was experiencing significant difficulties upon resuming contact with her father. The issues recorded by Dr. Pure included: V. not wanting to eat anything, biting her nails, sucking her thumb with increasing frequency over the last year, occasionally grinding her teeth, and “as of a few months ago she has started to bang her head.”  Ms. Mc. reported regression in V.’s: sleep, eating, toileting, mood/personality, anxiety, and behaviour. Ms. Mc. also suggested she saw physical signs V. had a “sore and red vagina.”

[121]    Despite Ms. Mc.’s suggestion that V. had exhibited “significant difficulties” upon resuming in-person parenting time with her father in late June 2020 until mid July 2020, which she raised with Dr. Pure on or about September 15, or September 24, 2020, many of those alleged concerns about V.’s behaviour were not included in Ms. Mc.’s affidavit evidence sworn in late August 2020, or in mid September 2020 (eating problems, biting her nails, sucking her thumb, grinding her teeth, and that she had started to bang her head a few months ago).  Up to that point, Ms. Mc. had observed that V. presented with a “red bum” and Ms. Mac. started assisting her with her toileting, then subsequently she suggested V. presented with redness, that her vagina looked different, and she had been peeing in her pants and upset/refusing to use the bathroom after visits with her father.

[122]    Further, Dr. Pure reported that Ms. Mc. explained to her that during the early stages of the Covid 19 pandemic, V. “did not see her father and these issues subsided; however, upon resuming visits with her father, Ms. Mc. notes that the issues re-emerged and caused much concern”. 

[123]    As noted previously, Ms. Mc.’s affidavit sworn August 28, 2020, suggests she “had previously made a doctor’s appointment for V. on July 14, 2020, as V. had begun to ‘wet’ herself after being successfully ‘potty trained’ for a year.”  No mention of many of the other concerns discussed with Dr. Pure on either September 15, or September 24, 2020.

[124]    Dr. Pure observed that during her first session with V., that V. showed a “remarkable and substantial change in mood and behaviour when the undersigned mentioned her father” and that when Dr. Pure asked V. about the play set she was playing with, “pretending some of the characters were her mother, her uncle, her grandfather, Hunter” asking “which one was her daddy” Dr. Pure noted that V.:

was silent and her eye contact diminished.  The contrast in her behaviour was very notable.  A number of times, the undersigned (Dr. Pure) tried to casually insert her father into the dialogue, and each time V. stopped talking and one time, she started crying.  After some time, when the undersigned (Dr. Pure) quietly {in parallel} played with V., she spontaneously stated “daddy touch my gina”. With many pauses during the conversation, V. clearly stated that her daddy touched her vagina, that he touched her vagina with his hand – she said “he touched me lots with his hand”.  She stated that “I was lying down” and referenced being in a bedroom and watching television.  V. used the word “dick” but it was unclear what she meant and the undesigned did not pursue this [at that time] to avoid further placing pressure on V. and to avoid having her shut down her dialogue.  When asked to identify an emotion (on a feeling board), she identified a sad face in reference to her father, in contract to identifying a happy face in relation to all the other people in her family.  V. said “I am sad” and “I am scared” in reference to her father.  V. showed the undersigned (Dr. Pure) where her vagina was and where her father allegedly touched her.  She stated that it happened more than once.

Dr. Pure stated that upon meeting V. for a further session on September 24, 2020, “she reiterated the same information regarding alleged abuse by her father, showing consistency with details, and in her feelings.”

[125]    Dr. Pure would later testify at trial and state that Ms. Mc. did not advise her there was an ongoing court proceeding where she and Mr. Mac. were attempting to resolve issues related to his parenting time or that Mr. Mac.’s parenting time had always been supervised by her or by his mother.  Dr. Pure indicated it was not her role to determine what happened but to meet V. where she was.  The problem in this case may be that Dr. Pure met V. after V. had been influenced into believing or she had been encouraged to repeat certain comments.

Referral from Dr. MacLeod

[126]    On September 17, 2020, Dr. MacLeod contacted the Department of Community Services – Child Protection.  It was only at that time that he reported that on August 19, 2020, V. had disclosed to him “daddy touched me in the vagina with his hands and dick.”

[127]    He stated further stated that based on his observations of the child and the mother he did not feel the child was “coached.” He indicated he was concerned that Ms. Mc. had identified V. was recently experiencing “new” urinary incontinence issues, she was not eating, and that her “behaviours were regressing.” Dr. MacLeod was not called as a witness at trial.  As noted previously, it is unclear to me exactly what the circumstances were surrounding V.’s disclosure or why Dr. MacLeod did not report the information to the Department of Community Services – Child Protection immediately after he met with Ms. Mc. and with V. on August 19, 2020.  It is perhaps noteworthy that he only made the report to the Department of Community Services – Child Protection, after V. began seeing Dr. Pure, and made similar statements in Dr. Pure’s presence. 

[128]    On September 17, 2020, the Department of Community Services - Child Protection contacted Ms. Mc. to advise her of the referral information they had received from Dr. MacLeod.  Ms. Mc. confirmed that Mr. Mac. “is court ordered to have access every weekend” but that she had not been permitting access since V.’s “disclosure” on July 18, 2020.

[129]    On that same date the Department of Community Services – Child Protection intake social worker consulted with the intake supervisor and a decision was made to request that Mr. Mac.’s parenting time remain supervised. Ms. Mc. was advised of the agency’s position, and Ms. Mc. stated she would not be permitting Mr. Mac. to have any parenting time.

Further information provided by Ms. Mc.

[130]    Ms. Mc. filed a further affidavit on September 24, 2021, suggesting V. was making statements such as “daddy touch me” in “mixed company as well as to strangers.”  It does not appear that Dr. Pure included that concern in her reports from her sessions with V. on September 15, 2020 and September 14, 2020, and perhaps that’s because Ms. Mc. was referring to V. making statements to Dr. MacLeod and to Dr. Pure?  Once again, Ms. Mc. suggests V. is now afraid of Mr. Mac. “V. speaks of her fear of Mr. Mac. coming to take her: she often will not go outside.” 

[131]    On October 5, 2020, Ms. Mc. reported to the Department of Community Services – Child Protection that V. had been seeing Dr. Kiran Pure and that Dr. Pure had suggested to her that V. “was telling the truth.”  Dr. Pure testified that she observed V.’s disclosures and her demeanor to be consistent with V. having been sexually abused; however, Dr. Pure acknowledge she was not advised of many of the other circumstances in V.’s life.

[132]    On October 6, 2020, child protection social workers met with Ms. Mc. and V.  Ms. Mc. reported to the Department of Community Services – Child Protection workers that V. was “terrified of her father and does not want to live there, because she is worried that he will take her.” When the child protection social workers asked to speak with V., she refused and began to cry.

[133]    On October 6, 2020, Ms. Mc. reported to the Department of Community Services - Child Protection that she believed that Mr. Mac.’s mother, Ms. Mac., was not actually supervising Mr. Mac.’s parenting time with V.  Ms. Mc. opined once again that V. is terrified of her father and that she is “worried he will take her.”

[134]    Given the history of this matter, I am extremely concerned about how and why V. has developed fear of her father. When V. was interviewed and she first uttered a statement suggesting her father had touched her, she showed no fear and no apparent distress or any understanding of any implications of what might have happened to her. Since that time, V. has allegedly developed a fear of her father and apparently a host of other symptoms which Ms. Mc has attributed solely to the alleged past sexual abuse of V. by Mr. Mac.

[135]    Although Mr. Mac. was “supervised” by his mother every time he saw V., it is unlikely that Mr. Mac.’s mother was always in the same room as V. or that she observed every interaction between V. and Mr. Mac. I am not saying abuse could not have happened.  I am stating that given all the circumstances, I find it is more likely than not that Ms. Mc. has either unwittingly, or she has intentionally influenced V.’s reporting.  Both possibilities raise serious concerns about V.’s future wellbeing.

[136]    There was no dispute between the parties regarding the police report to the Department of Community Services – Child Protection, that Mr. Mac. did take a polygraph test and he reportedly passed, with the polygraph technician finding that Mr. Mac. did not sexually interfere with V.  Neither to police nor the technician testified.  I have considered this information only from the perspective that there is no dispute that Mr. Mac. was willing to subject himself to testing and he did.

Response from Mr. Mac. and his mother

[137]     On October 13, 2020, Mr. Mac.’s mother reported to child protection services that V. and Mr. Mac. had always had a good relationship, that V. had never slept over at their house, and the only time she had observed V. get angry was on July 18, 2020, when Mr. Mac. took V.’s lip gloss away (there was evidence to suggest she was eating it).  Ms. Mac. stated that V. had cried during that visit, and Ms. Mc. later reported that Ms. Mac. reported that V. had hit Mr. Mac. Mr. Mac.’s mother also observed that the sexual abuse allegation was made by Ms. Mc. shortly after Mr. Mac.’s lawyer mentioned extending V.’s visits to weekend sleepovers.

Follow up contact by Dr. Pure with child protection services

[138]    On October 13, 2020, Dr. Pure spoke with the Department of Community Services - Child Protection. Dr. Pure advised that while attending sessions, V. had made several statements suggesting Mr. Mac. had touched her.  She opined that V. had appeared fearful when they spoke of her father. Dr. Pure indicated that V.’s statements were consistent for a 3-year-old and suggested V. was not lying.

[139]    On October 16, 2020, Dr. Pure indicated to child protection services that she had a follow up session with V. and her mother Ms. Mc to provide Ms. Mc:

with concrete strategies and resources on how she can support V. and help her better regulate her mood and behaviour.” 

[140]    Dr. Pure Suggested that:

behavioural change such as headaches, stomach pain, loss of appetite, and sleeping problems are some of the ways children may respond physically to anxiety, confusion, anger, fear, and shame that can be brought on by sexual abuse. Below, please find a list of some common indicators/warning signs in children who have experienced sexual abuse that are noted in V. based on maternal report (my emphasis):

Physical signs: signs of trauma to the genital area, such as unexplained bleeding or bruising.

Dr. Pure did not suggest that V. exhibited any of those behaviours or symptoms while in session with her.

[141]     Dr. Pure confirmed she did not see the IWK reports regarding V.’s visit to the IWK on July 18, 2020.  With respect to V.’s physical signs, I prefer the evidence of the team of doctors who examined V. at the IWK Children’s hospital on the evening of July 18, 2020, to any report from Ms. Mc. of what she allegedly saw on that date. I am not persuaded that Ms. Mc. observed any reddening of V.’s vagina on July 18, 2020.

[142]    If I am wrong and Ms. Mc. did observe redness and that V.’s “vagina looked different,” I then have difficulty reconciling why Ms. Mc. would not have taken V. to see her physician rather than question V. about possible touching.  In addition, given Ms. Mc.’s statements to some individuals that this was a longstanding issue I am unclear why she would not have provided the court with evidence of V.’s history of seeking medical attention to determine if there was a medical cause.

[143]    In her report Dr. Pure also commented about likely behavioural signs:

 

Behavioural signs:

 

•         Not wanting to be left alone with certain people or being afraid to be away from primary caregiver.

•         Regressive behaviours or resuming behaviours they had grown out of, such as thumbsucking or bedwetting.

•         Spending an unusual amount of time alone or withdrawn behaviour.

•         Emotional signs:

•         Change in eating habits

•         Change in mood or personality, such as increased aggression

•         Excessive fear/anxiety

•         Loss or decrease in interest in activities and friends

•         Nightmares or fear of being alone at night

•         Self-harming behaviours – head banging

[144]    I would think that the above noted symptoms could be present in V. for reasons other than that she was sexually interfered with by her father. I would reiterate that very few of the above-noted symptoms were raised by Ms. Mc. in relation to V. before mid-September, when the second investigation was prompted by Dr. MacLeod’s call to the Department of Community Services – Child Protection, or before V. began seeing Dr. Pure on September 15, 2020.  Therefore, despite the matter being scrutinized and being before the Court since August 2018, and Ms. Mc. presenting as highly motivated to prove to the court that V. should not be spending any additional time with Mr. Mac., Ms. Mc. did not raise many of the above noted concerns in court, but she raised them with Dr. Pure.

[145]    Dr. Pure went on to say that:

The effects of childhood sexual abuse last into adulthood.  Childhood sexual abuse is correlated with higher levels of depression, guilt, shame, self-blame, eating disorders, somatic concerns, anxiety, dissociative patters, repression, denial, sexual problems, and relationship problems in adolescence and adulthood, especially if untreated.  V. has experienced some sort of trauma based on her behaviour changes and based on what she disclosed to the undersigned (Dr. Pure)… Childhood sexual abuse is obviously often a traumatic experience that has many consequences throughout the person’s life and the child needs to rebuild a sense of trust and security and safety.

[146]    On November 16, 2020, the police reviewed the information Dr. Pure had provided to the Department of Community Services - Child Protection.  While considering all other relevant factors they decided it was not in V.’s best interest to be interviewed again. The police determined that the information from Dr. Pure was based on the same allegation (interference happened end of June 2020, or during two possible visits in July 2020) and the same evidence which was available at the time of the fist interview in July 2020.

[147]    On November 16, 2020, in a follow up conversation between Dr. Pure and the Department of Community Services – Child Protection on November 16, 2020, Dr. Pure confirmed that V. was still active in therapy and that she had been “consistent in her behavioral responses when dad is brought up in conversation i.e. demeaner change, ‘shuts down’, and V. says ‘I’m sad about daddy.’”  Dr. Pure also advised that V. continued to be consistent in disclosing “daddy touched my vagina.” Dr. Pure described V. as a “happy go lucky girl” and described Ms. Mc. as supportive and “not ill motivated at all.”

Risk assessment, further collateral contacts, and closure of Department of Community Services’ file

[148]    On November 18, 2020, the assigned intake child protection social worker with the Department of Community Services – Child Protection and the supervisor assigned the investigation noted: that V. had been interviewed by a police officer and by a social worker; that a social worker had attempted to complete a second interview with V., but V. became emotional and she refused; that the child had reportedly disclosed to her doctor; and she had reportedly disclosed to her therapist.  They concluded that it was not in V.’s best interest to participate in a second formal interview as the information from Dr. Pure was based on the same evidence (three supervised visits, one in June 2020, and two in July 2020),  which the first formal interview was based on. They also considered that Mr. Mac’s parenting time with V. had always been supervised and that Mr. Mac. had not had any form of contact with V. since July 18, 2020. 

[149]    I agree with the Department of Community Services’ finding that the “integrity of the investigation has been compromised.” I would further suggest that due to the history of this matter, and Ms. Mc.’s involvement in recording her discussions with V., that on balance of probability any new evidence collected by Ms. Mc. between July 18, 2020, and November 2021, was unreliable.

[150]    On November 18, 2020, Mr. Mac. confirmed with the Department of Community Services – Child Protection, that he had not seen V. since his last visit with her on or about July 18, 2020.  He confirmed that all his parenting time had been supervised up to and including on July 18, 2020.  Once again, he denied any wrongdoing. Mr. Mac. confirmed his ongoing involvement with his mental health treatment team to assist him to address symptoms of bipolar disorder.  He confirmed he had taken a parenting course which included information on the topic of parenting a child with bipolar disorder due to the risk V. may be diagnosed in the future. 

[151]    When Dr. Pure testified in November 2021, she opined that “separation anxiety” was not a potential issue which would apply to V. as her parents “had separated when V. was an infant.” Dr. Pure’s evidence suggests she believes V. was sexually abused by her father.  Dr. Pure did not believe V.’s symptoms were related to V. being cut off from seeing her father or his family after V. had seen them consistently since her birth.

[152]    At trial, Dr. Pure testified that she was not made aware that Mr. Mac. had been diagnosed with bipolar disorder.  As a result, she would not have considered whether V.’s symptoms might be related to the onset of a mental health condition which may or may not be similar to her father’s mental health condition.

[153]    On November 24, 2020, the assigned social worker and the supervisor assigned to the investigation by the Department of Community Services – Child Protection reviewed the matter. They once again discussed: the number of times various people, including Ms. Mc. and other professionals had spoken with V. about her father allegedly touching her vagina; they also considered that Mr. Mac. had not had parenting time with V. since July 18, 2020; that all his parenting time was supervised; that V. had never stayed with Mr. Mac. or his family overnight; and that the parties were involved in ongoing custody and access litigation (since 2018).

[154]    On November 30, 2020, the police advised the Department of Community Services – Child Protection that Mr. Mac. had taken a polygraph test on November 26, 2020. They advised that the polygraph examiner had determined that Mr. Mac. was being truthful when he stated that he had not touched V.’s vagina for a sexual purpose.

[155]    On January 18, 2021, Mr. Mac.’s mother, Ms. Mac., stated to the Department of Community Services - Child Protection, that she had been supervising Mr. Mac.’s parenting time with V. “since V. was two years old.” She noted that Ms. Mc. would “cancel visits for various reasons.” She explained that on one occasion Ms. Mc. cancelled a visit suggesting V. was “getting heat stroke” that V. played outside in the sun for 20 minutes, that Ms. Mc. called 811 regarding her concerns; and that Mr. Mac. encouraged Ms. Mc. to bring V. to the hospital” if she was concerned.  Ms. Mac. reported that Mr. Mac. had been helping V. with her toileting during his parenting time, and the door to the bathroom remained open and she could hear them in the bathroom.  Ms. Mac. stated that when Ms. Mc. advised that V. was “getting a rash around her vagina” that Mr. Mac. stopped helping V. with her toileting as he “thought he was doing it wrong,” and Ms. Mac. began helping V. for those few times she needed to use the toilet while attending Mr. Mac.’s parenting time which was scheduled for only three hours at a time until the summer of 2020 when he had a few supervised daytime visits for a longer period. Ms. Mac. stated that by the time V.’s visits were extended, she was the one helping V. with her toileting. Ms. Mac. described Ms. Mc. as a “fantastic mother” but suggested she may be “overly cautious with V.”

[156]    Ms. Mac. stated that Ms. Mc. had advised her that V.’s therapist (Dr. Pure) opined that Zoom calls with any of Mr. Mac’s family “would be detrimental” to V. and that included any Zoom calls with V.’s paternal grandparents or aunt. On November 8, 2021, Dr. Pure testified and stated that she did not tell Ms. Mc. to cut off V.’s contact with Mr. Mac.’s extended family. 

[157]    As noted previously, on January 18, 2021, child protection services followed up with Mr. Mac.’s treatment team at Connections in Sackville, Nova Scotia.

[158]    On January 26, 2021, the Department of Community Services – Child Protection concluded their second investigation. The overall risk of harm was deemed to be low and the investigation “inconclusive.” The file was closed.

[159]    On January 27, 2021, Mr. Mac. and Ms. Mc. were advised of the agency’s decision to close the file.  Ms. Mc. responded by stating that “Dr. Pure has stated that assault happened and that should be enough evidence”… “indicating this may come out in the media.” 

[160]    As of April 16, 2021, Mr. Mac. had not had in person parenting time with V. for 9 months.  The parties sought to schedule a 2-day trial, and it was scheduled on November 8 and 9, 2021.  On June 2, 2021, the parties appeared before another judge for a case management conference. Ms. Mc. confirmed she was seeking sole decision-making responsibility. Mr. Mac. was seeking joint custody and shared decision-making. The parties agreed Ms. Mc. would continue to have primary care of V. In addition, Ms. Mc. sought child support and a determination of Mr. Mac.’s income, but she was not asking Mr. Mac. to contribute to section 7 expenses.  Mr. Mac. was seeking specified parenting time with V.

[161]    On November 1, 2021, Ms. Mc. discharged her legal counsel and requested an adjournment of the trial dates. Her request was denied due to the significant prejudice to Mr. Mac. which could not be compensated with an award of costs.

Expert testimony at trial

[162]    At trial on November 8, 2021, Dr. Pure was qualified as an expert in the field of “psychological assessment and treatment of children, adolescents, and families.”  Dr. Pure stated that she was providing V. with trauma focussed behaviour therapy aimed at reducing the potential effects of trauma from sexual assault. Dr. Pure stated that she was treating V. for what she presented with and that she did not need to gather evidence. 

[163]    Dr. Pure confirmed that throughout her involvement with V. and Ms. Mc. she was under the impression that the Department of Community Services – Child Protection was still investigating the allegations of sexual abuse, and she had only found out a short time before she testified that the investigation had concluded.  That they had determined the investigation was inconclusive.

[164]    Dr. Pure offered the opinion that although V. had reportedly not provided sufficient information during the formal interview with police and child protection services, that she did not conclude abuse did not happen. Dr. Pure was not aware of certain information which had been available to the police and child protection services when they determined the formal interview with V. and the investigation was “inconclusive.” 

[165]    Dr. Pure stated that she was left with the impression that the “investigation was not fulsome,” stating that it was “critical not to discount a child’s voice.”  She acknowledged it was not her place to make recommendations for V.’s ongoing contact with Mr. Mac. 

[166]    Dr. Pure was not aware that on November 30, 2020, the police had advised the Department of Community Services – Child Protection that Mr. Mac. had taken a polygraph test on November 26, 2020, and the polygraph examiner had determined that Mr. Mac. was being truthful when he stated that he had not touched V.’s vagina for a sexual purpose.

[167]    Dr. Pure confirmed: she did not review the Department of Community Services – Child Protection file; she had never reviewed the joint protocol interview completed with V.; and she had never observed V. with Mr. Mac. Dr. Pure acknowledged that Ms. Mc. had never told her that she had denied Mr. Mac.’s parenting time prior to the alleged disclosure on July 18, 2020.

[168]    Dr. Pure confirmed she was unaware the parties were before the Court to deal with custody and parenting issues and that Ms. Mc. had been opposed to Mr. Mac. having any unsupervised parenting time before V.’s alleged disclosure on July 18, 2020. As noted above, Dr. Pure was also unaware that Mr. Mac. suffered from bipolar disorder, and that pending further decision of the Court, Mr. Mac.’s parenting time was limited and supervised, and that he did not have overnight parenting time with V.

[169]    With respect to Dr. Olga Kormistova’s report, Dr. Pure stated that she had consulted with other “senior psychologists,” and they all concurred that without Dr. Kormistova having met with V. or spoken with the “expert who sees the child (V.),” it is dangerous to give an opinion. As noted above, Dr. Pure commented about Dr. Kormistova’s opinion that a child presenting with anxiety and depression could be because the parents are separated. 

[170]    Although Dr. Pure acknowledged that no doubt there would be common features, she did not think it was appropriate for Dr. Kormistova to imply that V.’s presentation is due to parental separation, as V.’s parents had separated when she was an infant. I find that Dr. Pure was missing key information when she concluded that V.’s comments and behaviour were consistent with her having been sexually abused by her father.  I find there were several other possible explanations for V.’s presentation and her consistent comments about her father. 

[171]     Dr. Kormistova testified:

CORMIER, J.        …

CORMIER, J.        Ms. Mc., do you have objection to this witness being qualified as an expert in clinical psychology, neuropsychology, developmental psychology and rehabilitation and school psychology?

Ms. Mc.                 Um, no.

CORMIER, J.        …

CORMIER, J.        Okay and then you have your curriculum vitae with attachments. Alright, Ms. Mc., do you have any questions?

Ms. Mc.                 Yes, I do.

CORMIER, J.        Please go ahead.

Ms. Mc.                 Have you ever spoken to Dr. Pure directly regarding V?

Dr. Kormistova     No, I didn’t.

Ms. Mc.                 Have you treated or spoken to V directly?

Dr. Kormistova     No, I didn’t, but I did review videos of **inaudible**, and I did review all the files provided with the IWK records

Ms. Mc.                 Would you please say she is lying

CORMIER, J.        …

Ms. Mc.                 Volume 2, Tab 3 C, page 1, point 2. You pointed out that the IWK stated there was no physical evidence found of sexual abuse. Do you agree that sexual abuse can still take place even if there is no physical evidence?

Dr. Kormistova     Uh…in some cases when…in some cases that I reviewed, for example, in choking cases, um, it could be an internal trauma instead of an external one. But I’m not familiar with other cases. So, I want to, but are you asking about physical trauma or physical evidence?

CORMIER, J.        Just hold on. You’ve been asked if there are ever sexual abuse cases, so a sexual abuse case where there is no physical evidence.

Dr. Kormistova     Yes

Ms. Mc.                 Volume 2, tab 3c, page 1, point 5. You imply all children use the word “peepee” to describe genitals. Do you believe that all children of V’s age must use those words to describe genitals?

Dr. Kormistova     Maybe not all children, but I’ve worked with abused children as a therapist for probably 10 years, when I began working in **inaudible** and none of them mention adult words at this age.

Ms. Mc.                 Do you agree that it is a smart decision to teach children the proper words for their genitals?

Dr. Kormistova     I believe that in terms of language, sexual vocabulary improves between age 4 and 6. And this is maybe when appropriate teaching is supposed to be provided, but not in the case where the child is already has this information. Provided parenting **inaudible**

Ms. Mc.                 Volume 2, tab 3c, page 3, point 7, or number 7, point 3.

CORMIER, J.        …

Ms. Mc.                 You listed the behaviours that an abused child could display. Is it possible that a child could be sexually abused even if they do not display any of these behaviours you listed?

Dr. Kormistova     It is possible, but I am talking from my own experience as a child therapist who works with abused children, as an assessor who assessed abused children, and as a professional who has used literature regarding child abuse, sexual abuse.

Ms. Mc.                 3c, page 2, number 7 point 1. Can sexual abuse still have taken place without the accused being found guilty?

Dr. Kormistova     Well, from my experience working with as a medical assessor worker with children **inaudible mumbling** during the investigation, it always takes place prior to lying. Sexual abused child statement, providing statement to sexually abused child.

Ms. Mc.                 So are you agreeing or disagreeing that sexual abuse can still have taken place without the accused being found guilty?

Dr. Kormistova     **inaudible**
Ms. Mc.                 Pardon?

Dr. Kormistova     I disagree. I think there is a proper protocol for the department of community services and police. So, they investigate case and case, they found something, child requires therapy and additional psychology assessment. In that case it’s proper to talk about potential sexual abuse. But there is a protocol, statute protocol, how to investigate the case. That is my presumption.

Ms. Mc.                 Those are all of my questions.

CORMIER, J.        I’d like to ask a few questions. One of them is what is the protocol for the investigation. Are you aware?

Dr. Kormistova     Um, I know that medical assessor interviews, interviews the parents and the children. And police also interview the child. I review many video records of for potentially abuse. I review them and for this case too.

CORMIER, J.        Do you know if and when the agency closed this file?

Dr. Kormistova     I am not aware of the data or the date but I do know the agency closed the file and the department of community services, also the IWK discharged the child.

CORMIER, J.        Okay and when an investigation is determined to be inconclusive, what does that mean to you?

Dr. Kormistova     That they didn’t find any evidence. And more than that, in IWK record I read that child is healthy. This is their, basically, reason for the discharge.

CORMIER, J.        …

  Although I found the testimony of both expert witnesses helpful, I do not adopt all of the expert testimony of either of the expert witnesses.  I note that neither of them had the benefit of all the information I have reviewed.  In addition, I note that Dr. Pure’s role was to meet V where she was and to help her cope, not determine what did or did not happen.  I also note that Dr. Kormistova’s testimony may have been more geared toward a court proving that “beyond a reasonable doubt” that a child had been sexually abused.  Regardless of what happened to V or did not happen, my focus must be on her best interests moving forward. 

 

[172]    I believe Dr. Kormistova, was suggesting that given the circumstance of this case, that Dr. Pure should not be treating V. as though she has been sexually abused.  I do not propose to tell Dr. Pure or any other psychologist how they should do their job, however, I find that on a balance of probabilities V. was not sexually interfered with by her father.  I further find it is more likely than not, that Ms. Mc. either truly believed V. was sexually abused and influenced V. to believe she was, or that Ms. Mc. intentionally influenced V. or coached V. to tell others that her father had touched her.   

Mr. Mac.’s argument

[173]    On November 8, 2021, Mr. Mac.’s counsel made his oral submissions. He suggested Ms. Mc. was attempting and to some extent she had succeeded in alienating V. from Mr. Mac.  He suggested that if the evidence was considered in an objective manner, the Court would find that Mr. Mac. did not sexually interfere with V. He emphasized that upon V. indicating her vagina was sore, Ms. Mc. immediately jumped to an impermissible conclusion and asked V. “if someone was touching her down there.” He reminded the Court that one investigation was closed in late July 2020, and another investigation began after Dr. MacLeod and Dr. Pure contacted the Department of Community Services – Child Protection and that the second investigation was subsequently closed. He emphasized that Mr. Mac. had subjected himself to a polygraph and the technician had determined he was telling the truth when he stated that he had not touched V. for a sexual purpose.

[174]    I have already commented about the limited use of polygraph evidence, that no report was filed, and the technician did not testify; however, I have considered that Mr. Mac. was willing to take the test.

[175]    Mr. Mac. suggested that Ms. Mc. had waged “a campaign” against Mr. Mac. and she had been supported by Dr. Pure because Ms. Mc. had kept Dr. Pure in the dark about most of the ongoing court proceedings. He confirmed Mr. Mac. was prepared to pay retroactive child support of $4,697.56 to Ms. Mc. for V.’s care.

Comments, questions, or requests

[176]    After he concluded his submissions on November 8, 2021, I asked Mr. Mac.’s legal counsel to submit representations for special parenting time on behalf of Mr. Mac. Correspondence was received November 9, 2021, copied to Ms. Mc.  Mr. Mac. made the following requests through correspondence including:

Per your Ladyship’s direction near the end of the proceedings today, the following is Mr. Mac.’s request for special occasion parenting time:

•         On even numbered years, Mr. Mac. shall have parenting time with V. on Christmas day from 9:00 am to 7:00 pm.

•         On odd numbered years, Mr. Mac. Shall have parenting time with V. on Christmas Eve from 9:00 am to 7:00 pm.

•         On even numbered years Mr. Mac. Shall have parenting time with V. on her birthday from 9:00 am to 1:00 pm.

•         On odd numbered years Mr. Mac. Shall have parenting time with V. on her birthday from 1:00 pm to 7:00 pm.

•         Mr. Mac. shall have parenting time with V. on Halloween from 4:00 pm to 7:00 pm on even numbered years.

•         Mr. Mac. Shall have parenting time with V. on Easter from 9:00 am to 7:00 pm on odd numbered years.

•         Mr. Mac. Shall have parenting time with V. on Thanksgiving from 9:00 am to 7:00 pm on even numbered years.

•         Mr. Mac. also requests that his mother, Ms. Mac, do pick up and drop offs of V.

[177]    I find that it is in V.’s best interests for her to work with her therapist, or with another support person identified by Mr. Mac, to become confident and comfortable spending supervised time with Mr. Mac. which may be supervised by any of his extended family or any other reliable adult.  The issue of any failure on the part of Ms. Mc. to do everything within her power to support and encouraging V. to spend time with Mr. Mac, or with his extended family may be reviewed at the request of Mr. Mac. on an urgent basis.

Ms. Mc.’s arguments

[178]    On November 9, 2021, Ms. Mc. made her oral submissions. She stated that she “knew when [her] child is being honest.” As noted, I have found Ms. Mc. has either intentionally coached V. or she is unable to or has given no consideration to the possibility that V.’s seemingly spontaneous utterances were influenced by Ms. Mc.’s questioning and her reactions.

[179]     Ms. Mc. indicated that she did not withhold Mr. Mac.’s parenting time “for no reasons.”  I identified Ms. Mc.’s reasons in detail, but I found that those reasons were not significant enough for her to have denied Mr. Mac.’s parenting time. Ms. Mc. argued that it was not safe for V. to be around Mr. Mac. I disagree. I have no reliable evidence to suggest Mr. Mac. has ever posed a risk to V.

[180]    Finally, Ms. Mc. argued that “it may be traumatizing for V. to see Mr. Mac. again.” I agree that reintroducing Mr. Mac. will need to be handled carefully and with a great deal of focus on V.’s needs.

[181]    In November 2021, I gave the parties permission to start the process, suggesting I was likely to recommend Mr. Mac. have parenting time again or at the very least that his extended family have contact with V.  

[182]    I stated that I would likely need to provide written reasons, especially given the divergent viewpoints of the expert witnesses, but I was likely to order that Mr. Mac. and/or extended family be permitted to start rebuilding trust with V., ideally through V.’s therapist if she was willing to facilitate that process.

[183]    Ms. Mc. requested that I include specific provisions in any order permitting Mr. Mac. to have parenting time with V.  She requested terms requiring Mr. Mac. to have “constant supervision” while with V. and no overnight visits.  She further requested that Dr. Pure be involved in any reintroduction between V. and Mr. Mac. and that she be permitted to facilitate V.’s drop-offs and pick-ups. 

 

(a)         I am not prepared to order “constant supervision,” of Mr. Mac.  Although I do recommend, under the circumstances that Mr. Mac. arrange to never be alone with V., given the extremely high risk of further allegations of abuse.

(b)              I do find it is in V.’s best interests that, if Dr. Pure agrees, Dr. Pure be involved in V.’s reintroduction to her father and extended family. If not, then other arrangements will need to be made.  Specifically, Mr. Mac. would provide a list of three possible support persons who would be designated to assist V., and I recommend Mr. Mac. obtain expert advice about how to proceed with the reintroduction.  If Dr. Pure is unwilling to assist, I am prepared to hear further representations from an expert identified by Mr. Mac. 

(c)              I find that when Mr. Mac.’s parenting restarts, it may occur at Veith House, at Mr. Mac.’s mother’s home, and that his mother, his mother’s husband, his aunt, or any other adult person (who can provide a criminal record check and a child protection record check), are authorized to supervise Mr. Mac.’s parenting time with V.

(d)             I do not feel it is in V.’s best interests for Ms. Mc. to provide transportation for drop-offs and pick-ups on a go forward basis. I find that exchanges at Veith House or by a third party (not Mr. Mac) may be more appropriate. I would encourage the parties to discuss this issue. If there is no agreement, I am prepared to hear further evidence on that point.

[184]     As noted on November 9, 2021, I was initially hopeful I could provide an oral decision, however, upon review of the materials and due to the conflicting expert evidence, I determined it would be in V.’s best interests for me to provide a written decision. This decision should be read by any witness the parties propose to have testify at any review hearing scheduled in the future, and by any professional who agrees to facilitate V.’s reintroduction to her father. 

[185]    To avoid confusion, I have included excerpts from the comments I offered to the parties on November 9, 2021. These comments were offered by me on that date after the parties’ evidence was complete, and their arguments concluded.

Comments of Justice Cormier | November 9, 2021, at 10:07:13

CORMIER, J.        …

 I can say that the issue of V seeing or not seeing her father is a pressing issue …, but hopefully V isn’t aware of this proceeding and hasn’t been told about it, …

Child support

I do have some questions for you Ms. Mc if you don’t mind.

Ms. Mc.                 Yes.

CORMIER, J.        Okay. So, I’d asked you to give some thought to the issue of their proposal that he pay amount they had calculated yesterday. That he pay that forthwith. What is your position?

Ms. Mc.                 Yes and that is fine. I do have the date of the last payment.

COMRIER, J.        Okay, was it an additional payment on top of the $486.81 payments that we talked about?

Ms. Mc.                 No, these are from 2020.

CORMER, J.         Okay. Either way we would just take it off the top of the $5,000 owing in any case. …I would probably have him draft the Order for this matter, and when he does there’ll be a preamble at the beginning and it will indicate that the parties agree that his income was $25,920 in 2021 starting, I believe it was November. So that was only for part of 2021, I guess I should be clear about that. And that it was $23,031.12 in 2020, and we’ll say up to November until he got his increase. Then for 2019, it was $16,035, and for 2018 it was $11,559 and we discussed those numbers. So those would be in the Order explicitly. I would ask that they be in it. For 2018, he wouldn’t have owed anything because he came under the amount. He didn’t earn enough for the tables to apply to him. Then in 2019 it was $86, and then in 2020 it was $166 until October 2021 when his income changed. Alright, that’s how we talked about it yesterday. You understood that yesterday?

Ms. Mc.                 Yes.

CORMIER, J.        And you’re fine with those numbers?

Ms. Mc.                 Yes.

CORMIER, J.        And it’s $202 going forward from November 1^st forward. So, Mr. Broughton, you should be able to draft that Order.

Mr. Broughton      Yes my Lady. That’s no problem.

CORMIER, J.        Okay, so that’s part of it. And I just wanted to know if you’ve had the opportunity, Ms. Mc to receive and review the letter that was sent to me by Mr. Broughton about the holiday period, okay?

Ms. Mc.                 Yes, I did receive that.

CORMIER, J.        Alright, and so, I want to be clear about what your position is, because you clearly indicated to me that you believe something happened and that Mr. Mac. did touch V and that he was inappropriate with her sexually. So, you’re saying that you want V to remain involved with Dr. Pure. Are you taking the position that he not ever have contact with her again? Because you talked about reintroduction. But what is your position? You said if the Court ordered –

Ms. Mc.                 I would like her to be no contact. But one thing is if the ruling is that there is contact, I would like those things put in place.

CORMIER, J.        Okay. Alright. And the number, I just saw it. Mr. Broughton, just for the record, so it’s on the record, it’s $4,697.56.

Mr. Broughton      Yes my Lady, I calculated that as well.

CORMIER, J.        Okay, I think that was your number from yesterday but I have a new judicial assistant so I want to make sure it’s in the record if anybody needs it.

Alright, so if you went through that list assuming that a judge would allow some contact of some sort, do you have any opposition.

Ms. Mc.                 I have no issues with them.

CORMIER, J.        Okay, alright. And, I’d like to ask you a few questions, and I’m not asking you these questions because I made up my mind, I’m asking these questions because I have various scenarios running through my mind about what to do and I want to know your position on some of them if that’s okay.

Ms. Mc.                 Yes.

CORMIER, J.        Alright. From the perspective of a Court, it’s not unusual to have a situation where it’s unclear and in a family court or a civil court, we make decisions based on the balance of probabilities. I don’t know if you know that.

Ms. Mc.                 Yes.

CORMIER, J.        Okay. And so that is different from the criminal court, did you know that?

Ms. Mc.                 Yes.

CORMIER, J.        Okay, so in here it’s the balance of probabilities and in criminal court it’s beyond a reasonable doubt. …And so, I know you’re arguing and you’ve already argued that because, just because there wasn’t any physical evidence doesn’t mean nothing happened and your arguments focus on that just because he wasn’t found guilty, and that would have been in a criminal court and beyond a reasonable doubt, right? That’s what you’re saying to me.

Ms. Mc.                 Yes.

CORMIER, J.        Right. Okay, so, often times, in certainly the Supreme Court of Canada, they have said that it’s a very extreme position for any court to take away a parent’s access to a child and it has to be a very extreme situation. Now, of course, what I hear you arguing that this is one of those situations, and I’m not taking away from your argument. What I’m saying to you today is I have to balance, I have to think of V and I can say that I’m not supposed to give part of a decision and then divide the decision. So, telling you part of what I might decide now before I have everything together, judges are required to give sufficient reasons and they have to be organized in a way that is understandable and hits all the relevant points I’m supposed to hit….

Ms. Mc.                 Yes.

CORMIER, J.        Okay…, I still have to decide contact with his extended family, because a child has a right to know both sides of her family and not to feel cut off, generally speaking, from one side of the family. You heard Dr. Pure, she took the position, I know you took a different position based on the questions you asked her, I can tell from the file, Ms. Mc, that you’ve been put in a position that is an unfortunate position that the Minister sometimes takes, which is to say, protect your child. You know, I think a lot of judges would think if they had a concern, they should have made an application, so you wouldn’t be put in that position. But in one way, the Act, the Children and Family Services Act requires that they try to be least intrusive, so they create the least amount of upheaval in families’ lives, so they’re trying to balance various principals in deciding whether to go forward. But from my perspective, sometimes, it leaves different people handling a file, not having had first-hand knowledge of everything that is going on, you know, and because, if they were before the Court, there would be affidavits, it’d be more formalized. I don’t want to criticize any one agency or not. I know I made comments yesterday about the investigation. People do the best they can, but certainly, my background is in social work and interviewing, so I’m familiar with what Dr. Kormistova was trying to say, although I don’t agree with all of her comments, and I found that her testimony was a bit troubling at times. So, I’m going to give it some thought, Ms. Mc, but I’m always going to be thinking of it from V’s perspective and about the people who have been supportive to her and I would expect everybody to think of it from her perspective. I do agree with you that Dr. Pure presented as a clinician that did the best she could with the information she had. I was disappointed that you hadn’t provided her more information about our involvement and concerned about that. So I’m going to have to go through…there are good arguments from both sides. From Mr. Mac.’s side and from your side. It is, as Dr. Pure has said, a very complicated issue. This is not a straightforward issue. Parents, just because a parent, if I even found you to have been denying or overprotective without good reason initially, even if I found that, it doesn’t mean that you were trying, that the abuse didn’t happen. So I have to give some really careful thought to how we move forward. And that is what I would ask everybody to do is think about how we move forward. That’s what our Court of Appeal, what our Supreme Court of Canada wants us to, is to try to move forward on these matters. So I’ll try to come up with a decision that obviously keeps V as the center, as the central figure. Mr. Broughton and Mr. Mac., you may not feel that Dr. Pure presented as unbiased, but I do. I am relying on her information knowing that she didn’t have all the information, so that might have changed the course of things. And children are allowed to seek treatment, and mistakes can be made about whether or not somebody was touched or not, but if she is presenting with certain behaviours and or, I guess she is presenting in a certain manner that is interfering with her life, then she needs attention, and certainly, if I don’t make a decision today, I expect V to continue to meet with Dr. Pure, and I expect that, and I’ll say that part of it, and I already said my reasons. I accept her evidence and I accept that she didn’t know everything and perhaps things would have proceeded a bit differently had she known everything. I thought that she was very willing to accept that she might have said things to Ms. Mc that might have contributed to Ms. Mc keeping the child away, but either way we had an alleged disclosure that had to be investigated and that sometimes results in parents not having contact for a period. So, I am going to close for now, I think I’ve said enough, but I just wanted to explain myself a little bit and just let everybody know that Dr. Pure will be involved, so that if V has upcoming appointments and at the very least, I expect to involve, I have in mind, and this is a question I had for Ms. Mc, that I went about in a very round-about way, just trying to make sure we were on the same page, and that is, how you feel about Veith House involvement.

Ms. Mc.                 That’s like a visit centre, right?

CORMIER, J.        Why don’t I tell you about it rather than ask you that question assuming you know about it. And I’ll tell you the reason, and I know I’ve been directing my comments to Ms. Mc, that’s because she made her submissions today, but I certainly will turn my attention to Mr. Broughton and Mr. Mac. next. The Veith House, from my perspective, from a judge’s perspective, there’s been concerns raised about whether Ms. Mac. has been properly supervising V when she is with Mr. Mac., and frankly, if I do put supervision in place, it is a supervised space where they have trained supervisors who have to be in the room and take notes. In my experience, over many years of dealing with child protection and child sexual abuse issues, whether as a social worker or as a lawyer for the Department of Community Services, or as a judge, we’re always trying to make sure that we can get some independent information about how somebody is managing with a child when they are reintroduced. Right now Mr. Mac. seems to be, not seems to be, he is opposed to having Dr. Pure continue for various reasons, and I can understand why he would be, I just don’t agree with his reasons. And so, if Dr. Pure continues, from his perspective, that’s a biased involvement. Veith House is a neutral location where people will be taking notes and they are not involved in the same way that Dr. Pure is as V’s therapist. She is V’s therapist and V has a right to have a therapist. And I’m not, based on the information I have, going to take that away from her. And so, by having Veith House involved, you’d have independent people sitting there and somebody could be involved in introducing that V trusts, and reintroducing Mr. Mac., and frankly, from my perspective, I think, Mr. Mac., the best chance of success at reintroduction, if that’s what I decide, would be to have Dr. Pure there to reintroduce and then move away from her being present at the Veith House location, and I say that because then I get independent information about how that is going, or everybody would. We wouldn’t have Ms. Mac. involved, who obviously is his mother, so that’s not considered independent. And then Dr. Pure is not necessarily considered independent from Mr. Mac.’s perspective. So that’s the type of thing I’m thinking about. How do I, if I’m going to reintroduce dad, how do I do that where there is the best chance of success. In other words, the child feels comfortable. And let me talk about Veith House. Veith House, you’d go for an interview, you’d go with V. They’d show her around, they’d tell her you can give a sign if you’re feeling uncomfortable, and they’d end it if they needed to. So they have a full series, you know, you don’t see Mr. Mac. when you arrive, so you don’t come into contact with one another, and I think of the suggestions Mr. Mac. had made is that, he wanted his mother to pick V up, and I think that’s probably because, you believe V was touched by him. Just think from his perspective. Because of all of this involvement, and because of the way V was interviewed, and because of the follow-up, and because of the leading questions that were obviously leading, that you gave, there are certainly instances where children have been…and then, I notice that she uses the whole thing about dad not to do things, because maybe she is comfortable at home or whatever.

…

In this case, the other issue I have is, I can’t let preconceived notions about Mr. Mac. suffering from bipolar disorder muddy the waters. Just because he has bipolar doesn’t mean he is more likely than not to have done something that V has suggested. What I can say is that the investigation, it was, and you keep saying that you know your child, but the reason why professionals call it, or say that something has been, is no longer valid because of the way the questions were asked is because it can lead a child for whatever reason. Whether she just didn’t like the way dad was playing whatever they like to play. I don’t know. So, I have to weigh the pros and the cons, and maybe just look at it as if something did happen, do we move forward. Is there enough, is there too much of a risk to move forward or not? Mr. Mac. acknowledges there has to be a period of reintroduction, so I have to consider it. And the Veith House option with you being able to go over there and check it out and perhaps have somebody there that V is comfortable with when she is first introduced with dad, I think is the best way of reintroducing if that’s what I decide. I tried to give you as much information as I could before I ask you to give me an answer, but are you prepared to give me answer about Veith House…? That’s up to you.

Ms. Mc.                 Yes, I will agree to Veith House.

CORMIER, J.        Alright, so one of things I do as a judge, is I try to figure out what is already agreed, but you say you would agree, but you would only agree if I don’t decide that he has no contact…correct?

Ms. Mc.                 Of course.

CORMIER, J.        I can say that is really unlikely, Ms. Mc, that I won’t try to find a way for the family, at least, and Mr. Mac., and it’s very unlikely that at the end of the day, that’s what my decision would be. That he have no contact at all.

…

It may seem simple to either one of you, Mr. Mac., or Ms. Mc, that I would just (give my decision) but I do have to cover certain areas and I have to explain them and I have some remarks to make about the expert testimony and I need to be organized in doing that, and frankly, I may end up having too much to say to do it in an oral. I may end up just having to write it, to have a written decision, okay? As I said before, Dr. Pure, that’s not something that I’m going to… there’s already an Order in place and I’ve talked about how Ms. Mc needs to follow that order. Obviously, she hasn’t been following that Order. So, I’m going to try to get a decision out as soon as possible so Mr. Mac. is not waiting any longer to see V, and I can assure him that he is likely going to see V, it’s just how that’s going to happen. At the very least, Ms. Mac., or the relatives will get to see V and that I will be working around how to do that in a way that it will be most successful and least risky for V. Alright? So thank you very much and please call in at the same number at 3:30.

Continued at 15:30:58

CORMIER, J.           …application that started back in 2018. There’s an interim order in place currently. I’ve heard evidence yesterday and submissions from Mr. Broughton on behalf of Mr. Mac. yesterday. Ms. Mc’s submissions today. I’ve talked generally about the process. One of the things I’ve looked at is there are several comments I’ve made about the expert witnesses, and I don’t have time today to fully canvas all of that and explain my comments and I need to do that.

…

        Judges have six months from the date of the decision (trial) to produce reasons and a decision, and so I’m going to definitely try to put this one as a priority and that the outside date that I’m shooting for having a decision either in writing or orally, if it’s orally, I will have my office get in touch with both of you about that. The interim order, just so that Ms. Mc understand, is still in place. I do understand though that Mr. Mac. recognizes that V  sorry, I’m sorry, V is…there is some requirement to rehabilitate the relationship. So, obviously, the operative interim order, nobody is saying that is the best way of approaching the problem. I would invite both of you to come up with a solution to that. If you want. Obviously, Ms. Mc is taking the position that she doesn’t want, um, Mr. Mac. to have contact with V at all, and I haven’t clarified whether… I’ve indicated it was unlikely that I would grant that order, but I haven’t provided reasons or a final decision. As of right now though, the interim order is in place and does allow some supervised contact. The supervised contact isn’t, I suppose, something that anybody recognizes is the best solution right now. We did talk about Veith House. If Veith House and Dr. Pure come up with some idea on how to approach the problem in the interim, then of course they can do so, and my decision will have come afterwards. So I am giving you the latitude to do that. Mr. Broughton, I know that is not very satisfactory for your client, and that’s why I intend to work as hard as I can, but I do have other cases before him that also deserve my attention and some of them have been waiting five months….

Mr. Broughton      Yes my Lady, thank you. My client appreciates you making this a priority.

CORMIER, J.        Alright. Any questions, Ms. Mc.?

Ms. Mc.                 No.

CORMIER, J.       Alright then. I’ll either release, like I said, and I’m likely to  release a written a decision on this issue, given that there had been concerns raised about various professional…the evidence provided by various experts who were qualified as experts. I’m going to have to explain my findings as thoroughly as I feel necessary, and I don’t think I can do that in an oral decision….If I happen not to be able to do it, I’m reminding you a judge has six months. I’ll do my best to have it done by the 17^th, but that’s what I’m shooting for, alright? You will hear from me. I don’t expect to hear from you. Although, Mr. Broughton, you can certainly draft the, um, I would expect your client to start paying or to pay the money as agreed. The child support, and start paying child support and you draft a final order on child support if you wish or just have him pay that. Presumably that is going to be through the maintenance enforcement office. And the other decision in relation to child support would be whether or not it makes for this, these parents to be registered with the recalculation clerk. Have you given that any thought Mr. Broughton?

Mr. Broughton       Yes, um, I almost always put in the recalculation clause for parents so it’s recalculated each year.

CORMIER, J.          Okay, Ms. Mc, do you understand what that is?

Ms. Mc.                  No, I do not.

CORMIER, J.          Okay, so we have a very nice system within Nova Scotia. Sometimes it works well. It doesn’t apply to everyone. It doesn’t apply to people who have imputed income or when a parent is outside the province, the payor is outside the province. It does apply in certain circumstances. It seems it would apply in Mr. Mac.’s circumstances as a payor. He lives in the province and he has a salary, and what they do is, instead of the money, sorry, instead of the…well the disclosure will still go to you, but his yearly disclosure of his salary, of his income, will go to them as well as you. If it goes up or down, they will adjust accordingly. If you disagree with their adjustment, you can intervene and say you are not accepting it, okay? But it saves you having to come back every time or having to discuss it with Mr. Mac.. They do it automatically.

                    Ms. Mc.       Okay. Thank you.

CORMIER, J.        Do you feel comfortable with that?

Ms. Mc.                 Yes.

CORMIER, J.       Okay, so, the child support provisions – sorry, the order, the provisions in the order will provide for him paying through the Maintenance Enforcement Program, the Nova Scotia Maintenance Enforcement Program. In addition to that, you both have to register. The order will be registered once Mr. Broughton drafts it and sends it in, which I am asking him to do, okay? So that that’s not slowed down.

Mr. Broughton      No problem my lady. I’ll draft that order and file it with the court. Um, I’ll send it to Ms. Mc to review as well as prior to filing it with the court.

CORMIER, J.       Alright. And how and when will she get her money then, the $4600 whatever odd dollars there were.

Mr. Broughton     I spoke with my client about this. He was going to send it by way of an email transfer.

CORMIER, J.        Is that acceptable Ms. Mc?

Ms. Mc.                 Yes it is.

CORMIER, J.        Okay. And then, if he sends it that way, um, Maintenance Enforcement will likely be in touch, and you can indicate in the order that I’ve given permission for him to pay that out by email transfer and proof of that transfer being sent to Ms. Mc is sufficient proof that the retroactive claim has been dealt with, okay?

Mr. Broughton      Yes my Lady, thank you.

CORMIER, J.        Do you have any questions about what I’ve said?

Mr. Broughton      No my Lady.

CORMIER, J.        And Ms. Mc, do you have questions?

Ms. Mc.                 No, Your Honour.

CORMIER, J.       Alright, well, again it’s been, it’s a difficult situation and I know it’s difficult on both of you. I’ll do my best to make my decision clear. It’s the bestI can do. Thank you very much.

Law

[186]    The applicable legislation is the Parenting Support Act (PSA) which states in part that the PSA:

grants the court powers under section 18 (1), to make decisions related to (a) decision-making responsibility; (b) parenting time; (c) a parenting arrangement dealing with any of the areas set out in subsection 17A(3); (d) a parenting plan made under Section 17A; and (e) any other matter the court considers appropriate.

 

Pursuant to section 18 (2) on application by a parent, guardian or grandparent or, with leave of the court, on application by another person, the court may make an order respecting (a) contact time; (b) interaction; and (c) any other matter the court considers appropriate.

 

Pursuant to section 18 (2A) an order referred to in clause (2)(b) may include any provision respecting interaction, including provisions permitting the person granted interaction to (a) attend specified activities of the child; (b) send gifts to and receive gifts from the child; (c) communicate with the child whether orally, in writing or by other means; and (d) receive from a person designated in the order, photographs of the child and information regarding the health, education and well-being of the child.

 

Pursuant to 18 (2B) an agreement registered under this Act or a court order may grant parenting time or decision-making responsibility for a child to one or more persons.

…

Pursuant to section 18 (4) subject to this Act, the father and mother of a child are joint guardians and are equally entitled to the decision-making responsibility for the child unless otherwise (a) provided by the Guardianship Act; or (b) ordered by a court of competent jurisdiction.

 

Pursuant to section 18 (5) in any proceeding under this Act concerning decision-making responsibility, parenting arrangements, parenting time, contact time or interaction in relation to a child, the court shall give paramount consideration to the best interests of the child.

Pursuant to section 18 (6) in determining the best interests of the child, the court shall consider all relevant circumstances, including:

 

(a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;  I find that V has very special needs due to the ongoing conflict between her parents and she will require the support of a trained professional to help her acquire coping strategies and assist her to reunite with her father and his extended family.

(b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian; I find that Ms. Mc. has failed to support V’s relationship with her father and with his extended family, at one point suggesting Dr. Pure told her she should cut off all ties.  I accept Dr. Pure’s evidence when she stated that she did not tell Ms. Mc. to cut ties with Mr. Mac’s extended family.

 (c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; I have found that Ms. Mc. has been V’s primary parent throughout her life time.  Having said that I do wonder what level of involvement Ms. Mc’s mother had with V prior to her passing away in December 2019, believe both V’s maternal and paternal grandmother’s were involved in her care.

(d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educa­tional needs; It is unclear to me whether Ms. Mc. or Mr. Mac. intend to continue to reside with their extended family but I find that the support provided to the parents is helpful to V.  
(e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including the child’s aboriginal upbringing and heritage, if applicable;
(f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonably be ascertained; I am not prepared to accept Ms. Mc’s statements about V’s views and preferences, and I am concerned that her views and preferences have been influenced by fears which are unfounded.

(g) the nature, strength and stability of the relationship between the child and each parent or guardian; I find that V has always been in Ms. Mc’s care, given my findings I have concerns about the nature of the bond V may have with Ms. Mc.

(h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life; As noted previously, I find it is more likely than not that V’s primary attachment with family other than her parents was with her maternal grandmother and then her paternal grandmother.  Ms. Mc. did not call any family members in support of her application.

(i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co­operate on issues affecting the child;  Ms. Mc. may have trouble complying with my decision.  I am not convinced that Ms. Mc. will be prepared to accept my finding that it is more likely than not that the abuse did not happen, and therefore V’s support persons should be considering other avenues to address any apparent “symptoms” of abuse.

….

Pursuant to section 18 (7) when determining the impact of any family violence, abuse or intimidation, the court shall consider

(a) the nature of the family violence, abuse or intimidation;   I have determined that on balance of probabilities Mr. Mac. did not sexually interfere with V.  However, I am concerned with Ms. Mc’s ongoing criticisms of Mr. Mac. and I am therefore ordering that both parties participate in a parenting capacity assessment to obtain recommendations about how to assist both parties to co-parent V effectively despite their respective challenges.

[187]    I have included excerpts from the case of M.D.C. v. C.M., 2000 CanLII 2053 (NSSC), which was decided by the Honourable Justice John M. Davison.  I found the facts were very similar to the facts I have had to consider in this case, except, I do not find Mr. Mac. behaved in an aggressive or violent manner toward Ms. Mc. or V. 

[188] Justice M. Davison decided as follows:

DISPOSITION

 

[60] The petitioner says the child should not have access to her father.  She agreed there would be an agreement on access if “this business of biting had not occurred”.  The accusation made against the father is a horrendous one and obviously goes directly to the question of access.  Certainly if the father’s allegation is true, that the petitioner or a member of the petitioner’s family has programmed the child to make these comments, that conduct would have been done by a person who is not considering in any way the best interest of the child. The hostility between the parties is excessive. There is a third possibility.  Sometimes a parent believes the other parent has committed an act of sexual impropriety on a child which belief is founded on misunderstandings arising from mistrust and hostility toward the other parent. It has been said a young child is quite susceptible to acquiring a description of the alleged event when the matter is repeatedly discussed.  I refer to the comments of Professor Nicholas Bala and John Schuman of the Faculty of Law of Queen’s University in their article entitled Allegations of Sexual Abuse When Parents Have Separated.  The paper was presented at the County of Carleton Law Association Family Law Institute Conference on May 28, 1999 and at Education Programs of the Ontario Office of the Children’s Lawyer on June 7, 1999.  On page 2 of the article the authors say:

 

Children can often provide accurate and detailed accounts of abuse that they have experienced. However, a child who has been repeatedly questioned by a parent who may have preconceptions or biases about the possibility of abuse, may be quite suggestible and manipulable. Repeated questioning by a trusted adult can alter the memory of a child, especially a young child, to resemble the beliefs of the accusing parent. As a result of leading questions or suggestions from a parent, a child may come to believe that abuse occurred and create descriptions of events that did not occur.

 

[61] There is no question the child is making the comments which have been ascribed to her and which are set out in these reasons.  I do not know, on the evidence before me, why she is making these comments. Furthermore the only person who testified with any experience in matters of child psychology does not know what happened.  L.L.S said she believed something happened in the child’s groin area but she was “not sure exactly what happened”. On the other hand, she said some person could have coached the child. The witness said “I am not sure whether or not something happened here, I have concerns something may have happened” and she recommended there be conducted a parental capacity assessment and a personality assessment of both parents. I agree with the suggestion of L.L.S. I listened carefully at the trial. I secured the tapes of the evidence and listened to these tapes. I could not come to any conclusions except those findings set out in these reasons. I did not find there was evidence to permit me to find there was sexual impropriety effected by the respondent on the child.

 

[62] The petitioner said she could not think the respondent did something sexual to the child. She said she did not know what happened but that something is triggering the comments. I find the evidence of the petitioner indicates uncertainty as to what took place. She refers to the child’s sensitive skin, the fact she has eczema and is in need of special cream in the vaginal area.  She says the child came from the home of the respondent with bad diaper rashes. She believes something happened to elicit the responses of the child whether it was a bite, a pinch or a zipper caught her or whatever it might have been.

 

[63] M.S.M. was examined by a doctor who found nothing untoward in his examination. The petitioner did not believe the examination was thorough. The respondent passed a polygraph test on the subject of abuse. The petitioner was not impressed with that and stipulates they can be influenced by the ingestion of alcohol or drugs.

 

[64] The respondent is adamant he did nothing of a sexual nature to the child. I have reservations about some of the evidence given by the respondent, but I do believe he loves his daughter and the petitioner does not seem to dispute that.

 

[65] The assessment may be of assistance on the issue of the allegations advanced against the respondent. Any assessment will be more encompassing than the hearing before the court. That is often the case. The respondent is unemployed, and I am instructed on a legal aid certificate. He was ably represented by Mr. Carruthers who, in my view, conducted insightful cross examinations. But all of the evidence I heard, except for the respondent, was from witnesses called by the petitioner. I did not hear from the doctor or those in charge of the polygraph test.

 

[66] These references are not complaints against the role played by the respondent’s counsel. He was at a disadvantage. He had difficulty contacting the respondent who not only failed to keep in contact with counsel but, for some reason, failed to show on the first morning of trial.  The respondent was fortunate to have the services of Mr. Carruthers who conducted the case in a careful and professional manner despite the lack of funds at his disposal. The point is the assessor will be in a position to consider evidence as it relates to both sides of the issue of sexual assault.

 

[67] I believe it would be informative for the assessors to read the comprehensive decision of Justice Legere dated April 23, 1999. It was an application by M.D.C. for interim custody of M.S.M. wherein she proposed liberal access between C.M. and his daughter which included weekday access from 8:00 A.M. to 4:30 P.M. when he was not working but with a restriction on overnight access. There were five days of hearing and twelve witnesses. The judge gave C.M. access two days a week from 7:30 A.M. to 5:00 P.M. but overnight access was to be supervised by a person named S.P.. The reason for supervised overnight access was expressed by Justice Legere as follows:

 

... If C.M. is in possession of or can participate in a psycho-social/educational assessment that measures his cognitive ability, academic skills and receptive vocabulary development, personality behaviour, social and emotional level of functioning, parenting attitudes, strengths and weaknesses, this in my view would be of assistance to himself and a court in the future to explain some of the emotional and unpredictable behaviour.   

           

In light of all of the above joint custody would not serve the best interests of this child. The mother, M.D.C., will have sole custody. In granting her sole custody I expressly indicate that C.M. has been and ought to continue to be a part of his daughter’s life, in a regular and consistent, safe and healthy manner.

 

I find that when calm in normal circumstances, C.M. does have the ability to care for this child during the daytime hours. Pending completion of anger management and parenting courses that address the impulsivity exhibited by C.M., overnight unsupervised access visits will be delayed. The evidence and his behaviour raises in my mind sufficient concern about what could happen were he to face the ordinary nighttime unpredictable difficulties or emergencies faced by parents. In my view I would be in a better position to assess his behaviour and his ability to deal with the unexpected issues that arise knowing more about his emotional and intellectual state. At this point I remain sufficiently concerned to recommend an overnight access take place in a supervised setting. If he is appropriate in his interaction this person can report on his progress after a period of time passes. (my emphasis throughout).

Analysis

[189]    I accept that it is possible Ms. Mc. was not intentionally coaching V.  This still leaves me with concerns about Ms. Mc.’s lack of knowledge about the pitfalls of speaking to young children about sexual abuse in the manner that I have concluded she did.

[190]    I find it is more likely than not that V. was susceptible to being influenced by the questions she was asked, the reactions to her answers, and what she heard other people say about what had allegedly happened to her.  I find it is more likely than not that she did “acquire a description of the alleged event when the matter was repeatedly discussed in her presence.” MDC supra.

[191]    As I stated to the parties, this was a difficult case.  The facts in this case highlight that it is never in a child’s best interest for a parent to jump to any conclusions.  By proceeding without any knowledge of how to proceed, there is a serious risk that even well-intentioned people may ultimately interfere with an investigation and/or make it impossible for health providers or investigators to do their jobs properly. 

[192]    The courts will always be cautious and reluctant to rely on utterances from a “child who has been repeatedly questioned by a parent who may have preconceptions or biases about the possibility of abuse.” MDC supra.  I have found that V.’s utterances were not “spontaneous utterances” given the questions asked of her by her mother.  I accept that it is well known that very young children can “be quite suggestible and manipulable” and I find it is important to have appropriate safeguards in place to increase the chances of determining what may have happened, if anything.  Those safeguards include properly trained interviewers.

[193]    The courts have found, that “repeated questioning by a trusted adult can alter the memory of a child, especially a young child, to resemble the beliefs of the accusing parent.” MDC supra.  If Ms. Mc. did indeed ask V. the questions, she has suggested she asked V., then V. was asked leading questions.  If Ms. Mc. did not have the insight or knowledge to avoid using leading questions with V., I am not confident that Ms. Mc. had the insight or knowledge to know that she should refrain from showing any negative reaction to any disclosure V. may have made or that she should refrain from asking further follow-up questions. 

[194]    Ms. Mc.’s letter to the court dated November 1, 2021, enclosing what she claims to be her discussions with V., is further evidence that she does not comprehend the need for very young children to be interviewed under very controlled conditions.  I find it is more likely than not, due to Ms. Mc.’s ongoing focus on her belief that V. was abused and her ongoing tendency to attribute all of V.’s behaviours to past abuse, that V. has come to believe that the abuse occurred and she has created descriptions of events that did not occur.

Disposition

1          Custody

[195]    I am not prepared to grant Ms. Mc. sole custody of V.

[196]    Given that Ms. Mc. has always been responsible for arranging V.’s schedule, I am granting Ms. Mc. primary decision-making authority related to her extra curricular activities and her school placement but not medical decision making.

2          Parenting

[197]    Given the parties’ agreement, I will grant Ms. Mc. primary care of V.

[198]    I am granting an order suggesting a support person shall begin encouraging V. to consider Mr. Mac: attending at specified activities where she will be; sending gifts to Mr. Mac. or receiving gifts from Mr. Mac. and his extended family members; and/or Mr. Mac. communicating with V. whether orally, in writing or by other means.

[199]    Ms. Mc. shall provide Mr. Mac. and/or his mother with ongoing updates with respect to V.’s development and her interests, including providing up to date photographs and information about V.’s activities, her medical appointments, and her education.  She shall also provide up to date information about V.’s interests and hobbies.

[200]    I am granting a Veith House Order and I am directing that V.’s current therapist, if any, or another support person other than Ms. Mc. will help facilitate V. being reintroduced to Mr. Mac. and to his extended family through Veith House.

[201]    I am deferring any decision about Mr. Mac.’s overnight parenting. 

[202]    I find I would benefit from the parties’ participation in a parental capacity assessment with a psychological component to be completed on both Ms. Mc. and Mr. Mac. before I preside over any further review of this matter. I order both parties to participate in a parental capacity assessment with a psychological component.  The matter may return on my docket for a conference within six or nine months or upon completion of the assessment as noted.

3          Additional parenting / holiday parenting

[203]    Mr. Mac.’s requests included in his correspondence to the court on November 9, 2021, and consented to by Ms. Mc. should the court order parenting for Mr. Mac. is granted.

4          Child support

[204]    Was resolved by consent in November 2021. 

Cormier, J.