Here is the "Reference Judgement from the Supreme Court file that Dave Brown talks about..
CASE LAW REFERENCE - W.P.K. vs G.R.K.
||W.P.K. v. G.R.K.
||2001 BCSC 1202
IN THE SUPREME COURT OF BRITISH COLUMBIA
REASONS FOR JUDGMENT
HONOURABLE MADAM JUSTICE GILL
|Counsel for the Plaintiff:
|Counsel for the Defendant:
|Date and Place of Trial:
July 10-13, 16,
 The parties to these matrimonial proceedings were able to come to an agreement on all financial issues. Three issues remain unresolved - custody, guardianship and access. The plaintiff seeks sole custody and guardianship of the three children of the marriage. It is her firm belief that the two youngest children were sexually abused by the defendant. In respect of access, although she agrees that it should be regular, it is submitted that for a period of three years, overnight access should not take place. The defendant denies the allegations of abuse. He seeks joint custody and guardianship, as was recommended in a report prepared pursuant to s. 15 of the Family Relations Act by Dr. Korpach, and specified access, including overnight visits. J.P.K., J.L.K. and J.A.K., the children of the marriage, are now 5, 6 and 8. J.L.K. has Down's syndrome.
 Because of the plaintiff's belief that her husband had abused their daughters, the parties separated in February, 2000. But her concerns began on August 11, 1999, when she watched an Oprah Winfrey television program entitled "Would you know if your kids were being sexually abused". One of the guests was a child psychologist who taught at Harvard and commentators discussed potential signs or manifestations of abuse, including a child becoming withdrawn or angry and masturbating excessively. By the end of the program, the plaintiff was very concerned, almost to the point of panic. She called her family physician, told her that she had a strong suspicion that abuse had occurred and arranged an appointment for the next day.
 For reasons which will be articulated later, I do not intend to detail all of the plaintiff's evidence about statements made to her by the children. She is able to describe what was said, including her reactions, in great detail because she immediately commenced taking notes and took notes until November, 1999. I will deal only with the initial discussions with each child.
 It was the plaintiff's evidence that she had noticed that her youngest daughter, who was then three, had been engaging in what she described as intense masturbation. On the morning following the television program, she asked her daughter where she had learned to rub her "bottom" and made a number of comments on the subject of privacy. J.A.K. did not answer her question. The plaintiff then directly asked if daddy had showed her and J.A.K. said yes. On August 13, she again asked J.A.K. where she had learned to rub her bottom. The plaintiff's notes describe her daughter's response as follows:
 Turning to J.L.K., the plaintiff testified that when she was changing J.L.K.'s diaper a couple of weeks later, she concluded that her hymen was gone and immediately suspected that J.L.K., too, had been abused. She asked J.L.K.: "Does someone touch your bottom". The plaintiff's notes as to J.L.K.'s response begin as follows:
She didn't answer. Then I asked if daddy touched her bottom, keeping my tone matter-of-fact, and she said "yes .... bed". Her facial expression turned earnest and sad, with wide eyes. Her expression struck me as much as her words.
The plaintiff took J.L.K. to their family physician that same day. These various examinations have been normal.
 It was the plaintiff's evidence that when she used the word "bottom", she meant the genital area. "Bottom" and "bum" are therefore different. She agreed that she could not be certain that the children made the same distinction. Apart from that concession, the plaintiff remains of the view that the children have described various types of sexual behaviour. There is at least no dispute that the defendant assisted with toileting and diapering and has necessarily touched his children in the course of those activities. Further, because of a skin condition, J.L.K. requires the application of cream to the genital area. She was not toilet trained until she was five and was still in diapers in the fall of 1999.
 By the end of August, 1999, the plaintiff had secretly placed a camera in the bedroom shared by J.A.K. and J.L.K. When she went out, it was monitored by a private investigator. Nothing untoward occurred.
 In the fall, there were two events which particularly concerned the plaintiff. On one occasion in October and on a second in November, the defendant and J.L.K. were together on a couch in the morning and the plaintiff observed that the defendant had an erection. One the first occasion, J.L.K. had been playing with her father. When she entered the room, the plaintiff sensed that her husband wanted her to leave. She therefore remained. As her notes describe it, J.L.K. returned for more bouncing and playing and it was after she got off her father's lap that the plaintiff noted an erection. As to the second incident, J.L.K. had come into their bedroom at 6:00 a.m. and the defendant got up with her and lay on the couch. When the plaintiff confronted him, he said his erection was because he needed to urinate. The plaintiff's notes record her view that it was obvious that the defendant had been "caught".
 In December, 1999, the plaintiff met with a lawyer. It was suggested that she take the children to Dr. Elterman. For reasons which were not specified, Dr. Elterman's involvement was limited to one interview of the children. Dr. Elterman's notes were, however, provided to psychologists who later became involved in this matter. He did not give evidence.
 In early 2000, Ms. B., a friend of the plaintiff interviewed J.A.K. Videotapes of these conversations were made and form part of the evidence in this trial.
 By February, 2000, the plaintiff had determined that she could no longer live with the defendant because of the risk to the children. Materials were prepared for an ex parte application, including a lengthy affidavit detailing the alleged abuse. On February 23, she was given exclusive occupancy of the family home and interim custody. To that point, the defendant had not been aware of what was occurring. Mr. K. testified that he was shocked but prepared to do whatever it took to satisfy the plaintiff that her conclusions were wrong, including see a psychologist, take a lie detector test or undergo hypnosis.
 Dr. Ley, a psychologist, was retained to conduct an assessment of Mr. K. Dr. Ley's first report is dated July 4, 2000. It details the procedures which were followed, his observations and impressions, and the nature and results of the testing that was conducted. Dr. Ley was aware of what the children had said when questioned. On that issue, his report states:
... I found [Ms. K.'s] questioning of her daughters, particularly [J.L.K.], to be very leading and suggestive. In the November 1999 transcript of [Ms. K.'s] questioning of J.L.K., there are numerous instances of exceptionally leading and suggestive questions or prompts by [Ms. K.] of [J.L.K.], and then [J.L.K.'s] responses to those leading questions seemingly lead her ([Ms. K.]) to the conclusion that [Mr. K.] sexually abused [J.L.K.]. Additionally, in that same "interview", it seems that [J.L.K.] generally responds in the affirmative, regardless of the question. Also, many of her responses are quite nonsensical, and additionally, on the basis of the transcript, I am not very confident that [J.L.K.] understands many of her mother's questions. In short, based upon my reading of that transcript, I see very little, if any, evidence therein to conclude that [J.L.K.] was sexually abused by [Mr. K.]. ...
... More generally, this entire evaluation of the possibility that the children have been sexually abused has been hugely contaminated by repeated inquiries or interviews of the children, by lay people and others, who are not experienced in the evaluation of childhood sexual abuse. Thus, it will be even more difficult now, to attempt to properly and objectively evaluate this possibility.
His report concludes with his assessment of the defendant:
In conclusion then, based solely upon my assessment of [Mr. K.], it would be my opinion that it is unlikely that [Mr. K.] sexually abused his children, for the reasons that I have outlined above. That said, I believe that [Mr. K.] would benefit from psychotherapy or counselling, that was oriented towards assisting him in coping with his current stresses and the impact of his marital separation. Also, he does have a history of emotional neglect, and some resentful feelings towards his family members, that contribute to chronic problems with anger management. Additionally, [Mr. K.] would benefit from stress management and relaxation training. Further, he might derive benefit from attending the meetings of ACOA (Adult Children of Alcoholics).
If you seek further opinions in this matter, I would encourage you to solicit the opinion of an urologist, in regards to the prevalence and normalcy of early morning erections. This issue or observation has come up in a number of cases of this type, in which I have been involved. Although I am not a physician, having read a number of urologist's reports, it is my understanding that early morning erections, or erections in association with a need to urinate are quite common, and not viewed as occurring in response to sexual arousal or stimulation.
 Dr. Ley was later provided with additional materials, including the results of polygraph examinations taken by the defendant. His second report, which is dated November 13, 2000, concludes:
In conclusion, as a result of my review of the foregoing documents, which I had not read when I prepared my July 4, 2000 report, my opinion in [sic] unchanged. In fact, if anything, it is strengthened, and I believe that it is most unlikely that [Mr. K.] sexually abused his children. I have outlined my reasons for this opinion in my previous report. Obviously, there is a significant lack of direct, consistent, or otherwise substantive psychological or behavioural evidence suggesting that the [K.] children were sexually abused by their father, [Mr. K.]. That said, there can be no doubt that this controversial case would benefit significantly, from a comprehensive, so called "sec. 15" custody and access evaluation. I gather that Dr. Mary Korpach has been commissioned to undertake that evaluation. Obviously, both Mr. Colby and myself have been relatively disadvantaged, by virtue of not being able to assess all of the principals in this family matter. Dr. Korpach is an ideal candidate to undertake this evaluation.
In closing, I should add that I notice clear indications of increasing parental alienation of [Mr. K.] from his children. In particular, it appears that the children may be developing false beliefs about his conduct and character, which is concerning, given that [Mr. K.] has had negligible contact with his children over the last seven or eight months.
 The additional materials provided to Dr. Ley included reports from Mr. Colby, a psychologist who had been retained by counsel for the plaintiff to evaluate the children. Mr. Colby interviewed the children for a total of five hours. He also interviewed the plaintiff, but did not see the defendant. His report of March 23, 2000, states that J.P.K. and J.L.K. presented that there was manual genital contact. However, the nature of this contact could not be further defined due to the limitations of the information presented by the children. He recommended that until such time as it could be determined that the children were not at risk, access should occur in a manner that provided assurances for their safety. He suggested a psychological assessment and evaluation as regards Mr. K. Finally, he recommended that the children individually be engaged in a play therapy process which, amongst other things, would allow further exploration of areas of concern. The children have, in fact, been involved in such therapy for some time.
 A further assessment was done by Mr. Colby. His report of June 21, 2000, concludes:
... The matters relating to the children's disclosures still remain ambivalent and further assessment is required before it can be determined whether or not [Mr. K.] presents risk to the children. Affidavit material provided by [Mr. K.] indicates his willingness to undergo a Section 15 Custody and Access Assessment. This is appropriate and will address the issues of the emotional and psychological status of both parents and the children relevant to the children's emotional, psychological, developmental and safety needs.
 Mr. Colby also raised concerns relating to the leading nature of the questioning of the children. His first report makes specific reference to the questioning conducted by the plaintiff on August 12 and 13 and to the direct question which was posed of J.L.K. as to whether her father touched her.
 Turning to the evidence of Dr. Korpach, in preparation of her lengthy report, she spent many hours with the parties and the children and reviewed a significant volume of material, including the plaintiff's notes and the videotapes. Both in her testimony and her report, Dr. Korpach stated she was not in a position to investigate the sexual allegations or to determine their veracity. She nevertheless commented on the available information. She stated that some information regarding the behaviour of the children would generally be considered possible indicators of sexual abuse such as J.A.K.'s masturbation. However, this view was qualified. Dr. Korpach had been provided with a videotape of J.A.K. in bed and she described what she saw as self-stimulation, not masturbation, which could be explained as the result of stress. There was also evidence which would not be supportive of the possibility of sexual abuse including the relative comfort of the children with Mr. K. and issues surrounding toileting and his bedroom, J.A.K.'s inconsistent disclosures and her current denial of having made those disclosures, the fact that all three children wanted sleep overs with their father, their relatively good functioning and adjustment and the absence of sexualized behaviour.
 Although it was not her impression that the plaintiff was malicious or manipulative, Dr. Korpach expressed a number of concerns now that the allegations have been made. Of significance is the impact that the plaintiff's beliefs have and will continue to have upon the children. The reason for the separation of the parties has been discussed with the children and Dr. Korpach's report notes that from the perspective of the children, their father did, in fact, touch their bums. The context, however, has never been clarified. In her view, it is likely that the plaintiff's statements to the children produced some initial cautiousness in their views of their father. She nevertheless described the plaintiff as having exceptional parenting skills.
 Dr. Korpach recommended joint custody and guardianship, with primary residence to remain with the plaintiff, and frequent access. She recommended that the children continue with play therapy and that before any further medical/psychological evaluations related to issues of abuse are undertaken, a professional should be consulted. She further recommended that neither parent discuss the allegations with the children without the presence of a professional.
 Like Dr. Ley and Mr. Colby, Dr. Korpach expressed concerns about the manner in which the children have been interviewed. On that issue her report states:
The process of "interviewing" the children implemented by [Ms. K.] is very concerning. Both Doctors Ley and Elterman indicate that it does appear that the children were exposed to frequent and leading interviews, and behaviour by their mother which would serve to consolidate and reinforce statements regarding their bums being touched. It also appears that such statements were inadvertently reinforced, for example, through [Ms. K.] hugging them and reassuring them or through [J.A.K.] spending special playtime with a favourite adult, [Ms. B.]. The videotapes also demonstrate such a leading process. Finally, [Ms. K.'s] fourteen page diary of concerns outlines thought processes which jump rather dramatically to conclusions of a sexual nature.
 It was not until after the completion of Dr. Korpach's report that the defendant had unsupervised access. Since January, 2001, when a consent order was made, Mr. K. has had regular visits with his daughters, sometimes overnight. Despite that, the plaintiff remains convinced that the defendant poses a risk. She explained that although a consent order was made, she felt that she had no choice but to agree and ultimately retained new counsel.
 I turn now to the submissions. Mr. Dyer, on behalf of the plaintiff described the issue in these proceedings as being whether, having regard to past conduct, the defendant presents a risk to any child. It was submitted that there was a risk to the children and the orders sought by the defendant could be appropriate only where there was no history of questionable conduct. Mr. Neville, on behalf of the defendant, submitted that nothing in the evidence supported the plaintiff's belief that her daughters had been sexually touched and the only explanation for her continued belief is her refusal to look objectively at the evidence.
 On the question of the burden of proof, counsel for the plaintiff submitted that what must be proven is that there is a real possibility that abuse would occur. The burden of proof is not on a balance of probabilities. Reference was made to two authorities - M.G.G. v. C.T.,  B.C.J. No. 2825 (B.C.S.C.) and J.P.A.D.Z. v. K.L.A.D.Z.,  B.C.J. No. 2282 (B.C.S.C.). Both were cases dealing with allegations of sexual abuse. In M.G.G., each party sought custody of their daughter. It was concluded that the allegations of abuse were groundless but in dealing with those allegations, Allan J. said the following, at para. 102:
Throughout the trial, I was extremely concerned that there may [be] some validity to the defendant's concern that S. could have been sexually abused by her father. I do not consider an allegation of sexual abuse to be the type of issue that could properly be determined on "the balance of probabilities" in this case. I have no hesitation in saying that if the evidence raised a reasonable suspicion that such abuse had taken place, or might take place, I would "err on the safe side" by denying the plaintiff either custody or unsupervised access.
In J.P.A.D.Z., C.L. Smith J. dealt with an interim application for access. She applied the standard of proof in child protection cases articulated by Lambert J.A. in B.S. v. Director of Child, Family Community Services (1998), 160 D.L.R. (4th) 264 (B.C.C.A.). She could not conclude on the balance of probabilities that sexual abuse had occurred in the past or that there was a real possibility that abuse would occur in the year prior to trial. Unsupervised access was therefore ordered.
 What the plaintiff says in these proceedings is that her concerns that two of these children were sexually abused are valid and there is a risk that such abuse will continue if the defendant's access is not limited. In my view there is very little evidence to support these propositions.
 I begin by referring to the evidence of the various psychologists. As counsel for the plaintiff correctly submitted, a court is not bound to accept the opinions of any expert. Three psychologists have nevertheless had extensive involvement in this matter. It was not suggested that the court should discount their views on the interviewing process, but it was argued that their evidence is otherwise not of particular assistance. I do not share that view. While I agree with Mr. Dyer that Dr. Ley's opinion that it is unlikely that Mr. K. abused his children has obvious limitations, his evidence is at least helpful in that nothing from his interviews or testing supported a contrary conclusion. The same can be said in respect of Dr. Korpach's evidence. The report and evidence of Dr. Korpach is also helpful in that she has spoken with the children and has given evidence of how they view their father. Her evidence that they are comfortable with him and wanted sleep overs does not stand alone. It was confirmed by a family friend who has seen the children with their father. She testified that they always seemed happy to be with him and unhappy when they had to go and recalled statements to the effect that they could not understand why they could not spend the night.
 There is almost no evidence from any expert which supports the plaintiff's position, a point emphasized by defence counsel. As was also submitted on the defendant's behalf, this is a case where no stone has been left unturned. The children have been seen by their family physician. Four psychologists have been involved to a greater or lesser extent. Reports were made to the RCMP and to the Ministry of Children and Families. The absence of evidence from any expert witness which supports the plaintiff's beliefs is thus more significant than would be the case had the allegations not been thoroughly dealt with.
 I turn next to the evidence of the parties, commencing with the plaintiff. It is necessary to deal first with her objectivity. Although what occurred after August 11, 1999, was described as an investigation, Ms. K. quickly concluded that abuse had occurred. She testified that she has questioned her conclusion many times, but it is clear that what her children said cannot be erased from her mind. The fact that every professional has expressed the view that what she heard from the children may have been generated by the very nature of the process of interviewing them seems to have made no difference.
 The manner in which the plaintiff has interpreted certain events is telling and in that regard, I am in agreement with the comment of Dr. Korpach that the plaintiff has jumped dramatically to certain conclusions. To illustrate, I refer to two events described in the plaintiff's diary which occurred in the late summer of 1999. The plaintiff had been physically ill after an evening out and when the defendant insisted that she should go to bed and offered to clean up the bathroom, her explanation for what she considered an unusual offer was that the defendant hoped that she would fall asleep "so that he would have safe and easy access to the girls". As a second example, when J.A.K. said that she liked their house, the plaintiff suspected that her husband had told [J.A.K.] that if her mother ever learned of what was occurring, they would have to move. To so easily conclude that such things are related to sexual abuse, one must necessarily be predisposed to that end result.
 How the plaintiff has dealt with evidence that does not accord with her beliefs is also telling. As already noted, Dr. Korpach referred to statements by the children that they wanted sleep overs with their father. Ms. K. suggested that because Dr. Korpach saw the children at a time when access was supervised, perhaps they believed that the supervisor would also be spending the night.
 The plaintiff made up her mind a long time ago. When asked in cross examination whether there was anything that could convince her that she was wrong, she said probably not. For that reason and for the reasons set out above, I have no doubt but that her interpretation of words and events has been significantly coloured by her beliefs.
 As stated, I do not intend to detail the plaintiff's evidence about what she was told by J.A.K. and J.L.K. My first concern is what psychologists have described as a leading and suggestive process of interviewing the children. The second and related concern is the extent to which the plaintiff, in describing what she was told, is actually interpreting and drawing conclusions which support her beliefs. It is not even simply that the plaintiff has quickly and easily reached certain conclusions. In the case of J.L.K., her difficulties in making certain sounds necessarily means that listeners must interpret her words and ask for her confirmation that the interpretation is accurate. A conversation with J.L.K., for example, began with her saying "corny", which the plaintiff believed was "horny" and the conclusion that Ms. K. drew at the end of her questioning of J.L.K. about "a horny" was that she was describing her father ejaculate.
 In the end result, I do not accept that the plaintiff's evidence of what the children have said can be relied upon to support the conclusion that she has reached.
 As to the testimony of Mr. K., the submission on behalf of the plaintiff was that the defendant had not been forthright and that on the basis of his evidence, there should be concerns. I do not agree that the defendant was not forthcoming. That he may have been somewhat defensive in responding to certain questions does not seem surprising. He did not see or speak with his children for several months after he left the matrimonial home. I accept his statement that he never believed that this matter would end with a trial in which the sole issue is whether he abused his daughters. I also agree with the argument of Mr. Neville that how the defendant responded to his wife's assertions should be considered when assessing his credibility. Mr. K. first saw Dr. Ley approximately six weeks after the ex parte order. He testified that he told Dr. Ley to do whatever was necessary. Lie detector tests were taken. Mr. K. gave evidence that he has spoken to many others about this matter and has made them aware of what the plaintiff asserts and why. He continues to be counselled by his minister.
 The two occasions when the defendant had an erection in the morning when he was caring for J.L.K. were the subject of much comment. It is of note that the various experts were aware of these incidents and no one viewed them as evidence of abuse. I do not accept that the defendant was sexually aroused or stimulated, nor does the plaintiff go so far as to make that assertion, at least in this trial. Rather, it was argued that the defendant has acted inappropriately. Whether that is so or not, the issue is whether the children are at risk and in my view, these incidents do not support that conclusion.
 Having considered the evidence in its totality, I am satisfied that the defendant does not pose a risk.
 The defendant seeks joint custody and guardianship. The plaintiff was asked whether she could work with the defendant if such orders were made. She answered affirmatively. Counsel for Ms. K. did not argue in the alternative that orders for joint custody or guardianship should not be made, nor did he make submissions on the access schedule proposed on the defendant's behalf. Custody and guardianship will therefore be joint with specified access as sought by the defendant to commence September 1, 2001. The primary residence of the children will be with their mother. Costs may be spoken to if the parties cannot agree.
"K.M. Gill, J."
The Honourable Madam Justice K.M. Gill