2008 BCSC 1280 K.R. v. F.A.G.

Before: The Honourable Madam Justice Allan

Reasons for Judgment

Counsel for the Plaintiff	John R. Shewfelt
Counsel for the Defendant	Kris S. Pechet & Mark McDonald
Date and Place of Trial:	July 28-31 & August 1, 2008
	Vancouver, B.C.

[1] The plaintiff, K.R., sues the defendant, F.A.G., for damages arising from a single act of sexual assault that she alleges occurred when she was a young child in foster care at the home of F.A.G. and his wife C.G. F.A.G. denies the assault.

Background:

[2] K.R. and her brother, Keith, who is two years younger than her, lived with their biological parents until November 30, 1984, the day before K.R.’s sixth birthday, when they were apprehended by the Ministry of Human Resources (the “Ministry”) and put into foster care. K.R.’s father was, for the most part, absent. Her biological mother, who is aboriginal, was addicted to drugs and alcohol and currently lives in the downtown eastside neighbourhood of Vancouver. K.R.’s behavioural problems were serious enough to warrant a referral to Children’s Hospital for assessment. Her Ministry records indicate that in January 1985, there were concerns about her hysterical laughing, crying and wailing; non-responsiveness to praise or reprimand; reaction to discipline by swearing or crying; and her general grief over the loss of her parents.

[3] At trial, K.R. was able to recall her mother letting her have a sip of coffee, teaching her to tie her shoes and, on one occasion, baking. She also remembered her mother throwing her down a set of stairs and spanking her with a high heel for ripping out a hole in the wall. In her answer to a question in interrogatories as to whether she had suffered traumatic incidents in her life other than sexual assaults, K.R. replied that she had suffered harsh treatment and physical punishment by her biological mother before being placed into foster care. She could only recall two memories of her father – putting little handcuffs on her and Keith and giving them identical fire trucks.

[4] On February 5, 1985, K.R. and Keith were transferred to the foster care of F.A.G. and C.G. C.G. is now deceased.

[5] F.A.G. and his wife lived in a four bedroom two-storey home in New Westminster. They took in foster children from 1979 until about 1987 when K.R. and Kevin left. In 1985, F.A.G. and his wife occupied one of the two upper floor bedrooms and his son G.G. and Keith occupied the other one. The living room and kitchen were also upstairs. One of the two downstairs bedrooms was occupied by K.R. and C.R., F.A.G.’s natural daughter. C.I.A.G., his adopted daughter, and S.A.G., another foster daughter, occupied the second.

[6] C.R., who shared a bedroom with K.R., testified that when K.R. first arrived, she had two or three nightmares, crying “Daddy don’t; Daddy don’t” and pulling her nightgown down over her crotch. C.R., who was 12 or 13, woke her mother, C.G., who comforted K.R. and told her not to be afraid. K.R. had no recollection of those nightmares.

The Alleged Assault:

[7] K.R. testified that she was regularly invited by F.A.G. to lie and sleep on the waterbed in his bedroom when C.G. was not home. She also said that she used to comb his hair a lot. K.R. described only one incident of a sexual nature by F.A.G.:

I don’t know if it was that night, but for some reason the memory link, I always remember it with that night. I remember F.A.G. and C.G. arguing and yelling, I remember glass being broken. The next memory I have is on being woken up and asked if I wanted to go sleep in the waterbed. I don’t remember how I got there, I just remember being in the waterbed. And then awoke again, to feel my pants and underwear being pulled down to my ankles, and then I remember looking down and seeing F.A.G.’s head and he put his tongue to my, to my, and in my vagina, and I don’t know how long it was for, just felt like a long time, I wanted it to stop. And then I remember him pushing next memory I have is his pushing my head down, felt like it was trying to be pushed under a blanket, don’t like being under blankets, and I was trying to fight out of the blanket, and I was shaking my head no, and I was scared. And I remember seeing his penis and he tried to put my head towards his penis and I kept on shaking my head, I remember him saying just do it, and I said no, I can’t. And then I remember him saying “like you didn’t like it”, and then told me to get out of the -- get out, I was being a baby or a cry baby, and I was crying, I was trying to pull up my pants and I felt embarrassed because I was having a hard time getting out of the room, and I came out of the room, saw my brother. I was so upset. And he came running to me and helped me take my pants off, and I raced down the stairs, and then I remember Keith coming on to me a little bit, just looked at me, kept on crying, I believe I fell asleep. I don’t remember anything else after that.

[8] K.R. testified that she saw F.A.G.’s penis briefly but looked away because she was scared and did not want to look at it. She said it was the first time she had seen adult male genitalia.

[9] Keith testified that he witnessed part of the assault through the partially open bedroom door which was one to two inches ajar. He estimated that he stood there for 20 to 30 seconds. He said he saw F.A.G. and K.R. on the bed lying down. F.A.G. was wearing a shirt and pants with a belt and K.R. was wearing only a T-shirt. He described what he saw:

Well, from the start I can’t recall if I was coming from outside or downstairs, but I happened to be going up the stairs by F.A.G.’s room, and I noticed the door was ajar, and I saw that my sister’s pants were not on and he is [sic] his hands near her hip and genitalia area, and then he proceeded to take his left hand and place it on his belt and undo his belt and his pants and place his genitalia in his hand and then place his, my sister -- his hand on my sister’s back of the neck just near the hairline. And I, I remember he tried to proceed to push her head towards his genitalia, and I was very frustrated and I was so upset that I couldn’t see any more, and I decided to walk away, and into the living-room, to wait till my sister to come out.

[10] He testified that he watched a cartoon on television for what he estimated to be 20 to 25 minutes. He then saw K.R. come out of the bedroom:

She was crying and trying to get herself up and I noticed that her pants were wrapped around her legs and that’s why she couldn’t move. So I took her left leg loose from her pants and as soon as they were loose, she ran downstairs and I waited at the top of the stairs so that F.A.G. wouldn’t come out after her, to protect her. And then I proceeded to go to see if she was okay when F.A.G. didn’t come out.

[11] In cross-examination, Keith testified that he only looked into the bedroom when the door was ajar when something caught his attention. He stated that on a previous occasion, he had seen his sister and F.A.G. throwing a blanket around when the door was open more. On that occasion, he heard laughing and joking.

[12] Keith said that at the time of the sexual assault, something had caught his eye through the one inch gap. Mr. Pechet, counsel for F.A.G., suggested that he could not have seen inside the room when he walked past it because the door would have been in his way unless he turned to look in and even then he would not have a view of the bed or anyone on it. Keith adamantly disagreed with that suggestion.

[13] He described what he saw as his sister “being molested” by F.A.G. When it was suggested that he knew nothing about molestation at that age, he retorted that he had learned about strangers from his teachers from kindergarten. At first he said that he had learned about molestation and improper sexual touching from one of his teachers before he saw the assault. He later conceded that his teacher had told him to be careful not to talk to strangers and had not talked about good touching and bad touching and sexual organs.

[14] F.A.G., his adopted daughter C.I.A.G., and his natural daughter C.R., recalled that G.G. had a waterbed in the bedroom he shared with Keith, who slept on a bunk bed. Keith said he only remembered sleeping in the same room as G.G. on one occasion and he did not recall that G.G. had a water bed. He thought that F.A.G. and C.G. had the only waterbed in the house.

[15] K.R. testified that when she came out of the bedroom, her brother helped her take off her pants so she could move. He later came downstairs to see how she was and to comfort her but they did not speak about the incident. She did not think that he had observed the assault.

[16] After Dr. Janke, a psychiatrist retained by the plaintiff’s counsel, Mr. Shewfelt, interviewed K.R., he reported that she had told him that she recalled going downstairs crying where she woke her brother who comforted her. In cross-examination, she insisted that her memory that she saw her brother upstairs was vivid and that she had not told Dr. Janke otherwise. Mr. Shewfelt submits that the most likely explanation for this divergence is that Dr. Janke, who does not record his interviews, later paraphrased her incorrectly in his report. On the other hand, in cross-examination, Dr. Janke acknowledged the importance of accurately recording a history. He is an experienced psychiatrist who has testified in Court many times and he was fully aware of the purpose of the interview.

[17] Keith’s evidence was unsatisfactory. He was called to corroborate the plaintiff’s evidence by testifying as to what he says he observed as a four or five-year-old child, more than 22 years ago. Both he and K.R. say that they never spoke of the incident and indeed they lost contact for many years. In January or February 2008, after K.R. started this action, they were in communication and he told her “he had seen something”. This conversation took place after K.R.’s examination for discovery and before the first trial date, which was adjourned in order for defence counsel to interview Keith. However, Keith declined to be interviewed and the defence had no opportunity to discuss his evidence with him before he took the stand and testified at this trial.

[18] During her examination for discovery, K.R. conceded that she had not seen the face of the person touching her although she said he identified him from his hair and his voice. Mr. Pechet notes that Keith was the only witness who stated he saw F.A.G. commit the sexual assault.

[19] I find that the detailed description of what Keith observed as a four or five- year-old child does not ring true: “ … and then he proceeded to take his left hand and place it on his belt and undo his belt and his pants and place his genitalia in his hand and then place his, my sister -- his hand on my sister’s back of the neck just near the hairline.” F.A.G. and his daughters C.R., C.I.A.G., and S.A.G., all testified that if the bedroom door was just ajar an inch or two, a person in Keith’s position could not see anyone on the bed. Indeed, while F.A.G. conceded one might be able to see the very lower right corner of the bed, his daughters all stated one could only see the dresser and the window but not the bed.

[20] There is no question that K.R. and Keith, both abandoned by their natural parents, were closely bonded and that K.R. staunchly protected and supported Keith. She was terribly upset when he was punished. It is likely that he was punished frequently as F.A.G. and his family all described Keith as a troublesome child. He poked holes in F.A.G.’s waterbed, he set the house on fire, he cut up school photographs, et cetera. K.R. does not recall those incidents and did not remember making the complaint that launched the investigation of the home by the Ministry. While Keith testified that one of the few things he remembered from those days was that he was disciplined by F.A.G. and not C.G., the uncontested evidence of F.A.G. and his family was that discipline was meted out by his wife C.G. Indeed, C.G. was investigated by the Ministry for inappropriately punishing Keith after K.R. made a complaint to the Ministry that C.G.’s punishment of Keith was too harsh. K.R. does not remember making that complaint.

[21] There are significant discrepancies between the versions of the incident described by K.R. and Keith. K.R. was sure that it occurred at night time and the only source of light was coming in from the hall. Keith was adamant that it was daylight on a sunny day with light coming in through the bedroom window. K.R. said she thought she remembered F.A.G. and C.G. having a fight that night and C.G. leaving the home. If it were night time, then F.A.G. would have had to come to the bedroom K.R. shared with C.R. and take her through the recreation room where the teenagers gathered.

[22] Keith stated that both K.R. and F.A.G. were visible as the bed was made and they were not under the covers. However, K.R. said she was in the waterbed and F.A.G. pushed her head down – it felt like he was trying to push her under a blanket and she was trying to fight out of the blanket. She also told Dr. Janke that she was under the covers of the bed and F.A.G. was trying to get her to perform oral sex on him. In cross-examination, she said at first that she did not believe she was under the covers. She then said that her head was pushed underneath the covers and the other person’s body was under the covers as well, where she saw a penis.

[23] Keith said that when he observed them, K.R. was only wearing her T-shirt. K.R. told Dr. Janke that when she woke up, her pants were around her ankles and “he was giving me oral sex”. Both K.R. and Keith described her as having difficulty leaving the bedroom because she was hobbled by her pants.

[24] Although both K.R. and Keith say that Keith was outside the door and helped her free her pants which were tangled around her legs, she appears to have told Dr. Janke that she went downstairs crying where she woke up her brother who comforted her.

[25] Keith stated that he, K.R. and F.A.G. were the only people at home at the time of the incident that he observed. That would be unlikely as all of the defence witnesses denied that F.A.G. ever babysat for his own children or the foster children.

[26] Further, it is troubling that the first person to whom Keith and K.R. gave their full and detailed accounts of the alleged incident was plaintiff’s counsel, some 22 years after the event.

[27] Mr. Pechet considered it significant that K.R. told Dr. Janke that F.A.G. had said “come on, you like it” rather than “like you didn’t like it” which suggests a different message. I do not consider this an important discrepancy. It would be more surprising if an adult could remember the precise wording that she heard as a child 22 years earlier.

[28] F.A.G. denies assaulting K.R. In the circumstances of this case, it is impossible to prove a negative and, of course, there is no onus upon him to disprove the assault. The testimony of his three daughters – natural, foster, and adopted – corroborated his evidence to the extent that he was a man of good character and not the type of person who would perpetrate such an assault. They said that they were unaware of any sexual misconduct or innuendo on his part; he never made sexual jokes or references and he did not dress immodestly. He had limited interaction with any of the children in the home; they described him as a provider who spent little time with any of the children. He worked at LaFarge Cement and put in a lot of overtime although that often required him to sleep during the day. In his leisure time, he golfed and curled. He never considered it his job to babysit when his wife was absent. C.I.A.G., the oldest of the girls, had that role. F.A.G. would have had limited opportunity to perpetrate a sexual assault upon any of the girls in his home.

[29] In many cases, for example, B.(M.) v. British Columbia, 2003 SCC 53, the perpetrator engaged in sexually inappropriate behaviours such as masturbating where the foster children could see him, taking underage foster daughters to the Legion, offering them presents in return for sex, and touching them in a way that made them uncomfortable.

[30] I found F.A.G.’s three daughters to be direct and forthright witnesses.

[31] On the other hand, it is true that many sexual assaults upon children have been committed by adults considered by their families and the community to be of sterling character. As well, descriptions of actual sexual assaults may sound improbable with respect to their often brazen timing and location, and the improbable acts involved. Moreover, it is virtually impossible to determine such issues as probability and opportunity on the basis of evidence given by witnesses describing the atmosphere in a family home more than 20 years later.

[32] In April 1986, social workers with the Ministry received a complaint from K.R. that she did not like the way C.G. yelled and hit her brother Keith. An investigation was undertaken. Keith was reported to have said: “Auntie C.G. digs her nails in my neck” and K.R. said that C.G. “slaps him on the head and tried to grab him by the neck when he set fire to the bed.” When social workers attended, K.R. told them that Keith got the spoon when he was bad but she was good and did not “get the spoon” and was not hit. She also said that “Uncle F.A.G. spanks with the belt” but she could not describe the belt. During those interviews, K.R. did not disclose that she had been touched or sexually assaulted by F.A.G.

[33] F.A.G. was so angry about the investigation that he demanded the foster children be removed the next morning. However, C.G. was concerned that they had nowhere to go and convinced him to wait until placements could be found.

[34] At the time of the complaint, Colleen Sinclair supervised the social workers who were assigned to the foster children in the region that included New Westminster. She oversaw the investigation relating to the home of C.G. and F.A.G., and testified as to how the investigation would have been conducted. As part of the Ministry’s protocol, the investigation would have commenced by reviewing the foster home file for any prior complaints.

[35] Each child had their own social worker who would have been contacted and asked if there were any concerns. Social workers were sent to interview all of the children in the home on a one-on-one basis. Ms. Sinclair said the focus was on the safety of the children in the home and their well-being. The social workers would have established rapport with the children and taken the opportunity to learn if there were any concerns. They would have reviewed how the children were feeling and ensured that all of them were safe.

[36] The Ministry never received any complaints of sexual abuse by anyone in the home of F.A.G. and C.G.

[37] K.R. took the initiative in spontaneously making a complaint about the treatment of Keith by C.G. She testified that she was unsure as to whether the alleged incident of sexual abuse occurred before or after the investigation by the Ministry. One would expect that if she had been sexually assaulted by F.A.G., she would have spontaneously reported that or, at least, disclosed it when she was interviewed by the social workers as part of the investigation that her complaints had instigated. Because F.A.G. was furious that the Ministry had reacted to the complaint by K.R., which he considered completely unfounded, it is extremely improbable that he would have brazenly assaulted K.R. after being subjected to the massive and instantaneous response of the Ministry.

[38] K.R. related two other accounts of sexual abuse that occurred in the foster home, although she could not recall whether they occurred before or after the alleged incident of sexual abuse by F.A.G. One occurred when a teenage girlfriend of one of F.A.G.’s daughters was sleeping with her. When she was asleep, the girl placed K.R.’s hands on her breasts and K.R.’s finger in her vagina. She said that the other girl also wet the bed but that she got blamed for it. She said the second incident occurred when she was asleep on the sofa and G.G., the son of F.A.G. and C.G., rubbed her vagina over her clothing with his stocking foot.

[39] Mr. Pechet emphasized the fact that after K.R. left the foster home, she visited F.A.G. and C.G. and gave them a note telling them that she missed them, that she loved them, and that she would come and visit them often. In my opinion, if a child of that age were sexually abused by a caregiver, it would not be unusual for her to experience conflicting feelings, including love, for the perpetrator.

[40] K.R. said that after she was assaulted by F.A.G., she chose to forget about it and pretend it had not happened.

The plaintiff’s life after she left the foster home:

[41] After approximately two years in their foster home, K.R. and Keith were adopted by another couple, R.R. and L.R. K.R. lived with her adopted parents until she was 15 or 16 when she requested that she be placed into care. When she was approximately 15, she began drinking alcohol and smoking marijuana. She began drinking alcohol in large amounts, more than “a 26-er” at a time. She used LSD frequently in her mid-teens. She was often in conflict with her adopted parents, her teachers and her school mates. Between the ages of 15 and 21, K.R. engaged in a crime spree. She bragged that on occasion, she had made up to $1,800.00 a day. She said that over three and a half years, she committed between three and six “break & enters” a month, as many as 200 such crimes in total. She admitted to assaulting people, selling drugs, and committing frauds. She agreed that “honesty was not her priority” and many of her crimes were, in fact, crimes of dishonesty. She was also promiscuous in her teenage years and often had casual sex to feel wanted and loved. The Ministry’s records indicate that in 1994, when she was 16, K.R. told a social worker that a 26-year-old man had raped her. In her interview with Dr. Janke, K.R. said she did not consider that event to be significant. She said that she had been drunk and thought that he had not heard her say “no”. The intercourse had ended when she said “no” loudly enough for him to hear her. She reluctantly filed a criminal complaint at the urging of her social worker.

[42] Since abandoning her criminal life style, K.R. has had a series of temporary low-paying jobs. She told Dr. Lohrasbe, a psychiatrist retained by the defence: “I found it hard to adjust from a big cash flow in crime to a minimum wage.”

[43] In 1999, K.R. deliberately became pregnant and stopped using alcohol and drugs. However, her son’s father was unstable because he continued to drink, use drugs, and engage in criminal activities and she relapsed into heavy drinking. She stopped binge drinking when she met her present husband in 2002. Since the birth of their two daughters in 2003 and 2005, she has been monogamous and not used any alcohol or drugs.

[44] K.R. has always suffered from sexual problems and says that sex, even with her husband, repels her. She particularly dislikes oral sex or being touched in the genital area.

[45] Over the years, K.R. has taken courses towards her high school diploma and at the date of the trial, she was registered at Okanagan College in a two-year associate of science program. She hopes to then transfer to the University of British Columbia for her undergraduate bachelor’s degree. She has family in the Okanagan who can assist her with childcare.

The Disclosure of the Alleged Assault:

[46] Evidence of disclosure of abuse is not used to confirm the truthfulness of the allegation. Rather, it is to show “the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”: R. v. Dinardo, 2008 SCC 24 at para. 37, citing McWilliams Canadian Criminal Evidence (4^th ed. (looseleaf)) at pp. 11 - 45 (emphasis in the original).

[47] Prior to her full disclosure of the alleged assault to her lawyer, K.R. alleges other incidents of partial disclosure. She testified that before she and Keith were adopted she was questioned by a psychologist or a social worker who kept persistently asking her where she was touched or what happened. She said that ”I grabbed the dolls and said this is what happened, and I remember throwing them on the ground and kept on playing and they seemed to leave me alone after I said that.” She said that she put the hand on the doll’s side and the face of the boy doll on the crotch of the girl doll. K.R. did not recall anything happening after that disclosure and agreed with counsel that there is no record of such an event. She said that she was angry when she received her file and found no record of that disclosure. She could not recall where such an interview happened or why. She agreed that she had not named F.A.G. as the person who had touched her. As Mr. Pechet notes, she failed to make mention of this interview in her interrogatories or her examination for discovery when she was asked about disclosure. In cross-examination at trial, she thought the disclosure had been made to a social worker before she left her foster home. She said she had not remembered that interview at the time she completed the interrogatories or her discovery.

[48] After K.R. and Keith were adopted, K.R.’s behaviour deteriorated in school and at home. Her adopted mother, R.R., discovered a note in which Keith alluded to sexual activity with K.R. She took both children to a child and adolescent psychiatrist, Dr. Golden. In his report of April 14, 1992, Dr. Golden stated that when R.R. had confronted them, Keith said that K.R. had fondled him and K.R. said that Keith had asked her to fondle him but she had refused. Dr. Golden wrote that when he saw both of them, they initially denied being victims of sexual abuse. However, K.R. later told him that her “Uncle” F.A.G. used to ask her to come into bed with him when his wife was not present and at one point “Uncle [F.A.G.] asked me to suck him and I refused.” Dr. Golden thought there was a possibility that they had both been sexually abused in the past but considered it difficult to assess.

[49] In her testimony, K.R. agreed that her adopted parents would have been mad if she had admitted any sexual contact with her brother. She also said that Dr. Golden “wouldn’t stop asking me about sexual abuse in my past and sexual stuff between my brother until I admitted something.”

[50] As Mr. Pechet notes, that allegation transformed K.R. from a “suspect” to a “victim”. Moreover, she did not allege that F.A.G. had touched her improperly, only that he had asked her to perform oral sex upon him.

[51] A couple of months prior to trial, K.R. said that she had phoned her adopted mother, R.R., who lives in New Brunswick. They were talking about Dr. Golden and R.R. said that K.R. had told her “something” after a visit to a psychiatrist, although had she thought it was not Dr. Golden but a different psychologist. K.R. had no recollection of that conversation prior to recently talking to her adopted mother. She testified that the telephone conversation refreshed her memory and she now recalls that she told R.R. what she had told Dr. Golden.

[52] K.R. says that after she left her adopted parents’ home, she told a social worker of F.A.G.’s assault while she was living with T.I., her foster mother when she was approximately 16 or 17. However, she could not remember the name of the social worker or whether she had provided any details of any allegation to her. There is no record of such a disclosure.

[53] The next disclosure, and the only full disclosure, was many years later, to Mr. Shewfelt, her lawyer and to Dr. Janke, the forensic psychiatrist retained by Mr. Shewfelt.

The plaintiff’s claim that she suffered damage as a result of the sexual abuse by F.A.G.:

[54] The plaintiff submits that the sexual assault caused her lifelong psychological damage, including symptoms of post-traumatic stress disorder (“PTSD”), anxiety, difficulty with sleep, loss of appetite, irritability and suicidal thoughts. Her self-esteem is low and she has difficulty developing trust in people who are close to her. She is unable to enjoy sexual intimacy with her husband. She has suffered from depression. She believes that the sexual assault was a major contributing factor to her failure to complete high school, her history of alcohol abuse and promiscuity, and her impaired income earning capacity. She has taken medication for depression and mood disorder.

The expert evidence:

[55] Both Dr. Janke for the plaintiff and Dr. Lohrasbe for the defendant are experienced forensic psychiatrists with vast experience in diagnosing and treating victims and perpetrators of sexual abuse. Both agreed that in this case, multiple early life events contributed to K.R.’s many difficulties.

[56] Dr. Janke conducted a two hour interview with K.R. in January 2006. He considered the incident of sexual abuse by F.A.G. to be a significant and material contributing factor to K.R.’s ongoing depression. He also said:

The sexual abuse [K.R.] experienced in association with the other abusive behaviours she describes within the … household and her early history of caregiver instability would be the major factors in her inability to successfully complete school. These would be a contributing factor to her substance abuse in conjunction with in all likelihood a very strong biological predisposition towards substance abuse.

[57] Dr. Janke also believed that K.R. demonstrated some of the symptoms of PTSD although she would not qualify for a diagnosis of that disorder.

[58] He considered that her inability to enjoy sexual intimacy with her husband was a direct result of the sexual abuse she suffered as a child. He described the sexual abuse as a “package” in that there were multiple incidents of inappropriate sexual behaviour but he saw the alleged abuse by F.A.G. to be the most serious incident and the greatest contributor to her behavioural difficulties. In particular, and in the absence of other evidence, he considered K.R.’s abhorrence of oral sex to be directly linked to that experience. He did not consider the incident in which G.G. rubbed her vaginal area with his stocking foot to have had any significant affect on her development. The incident with the teenaged girl would be expected to have a greater impact than the occurrence with G.G. as it was more prolonged, more sexual, and involved a degree of force.

[59] Dr. Janke testified that there was a high correlation between early childhood abusive experiences, including – but not limited to – sexual abuse, and substance abuse in adolescence and adulthood. Because of the strong genetic component of substance abuse, he would expect that even if K.R. had been in a stable placement and received appropriate love, care and supervision, she would still have been at high risk for substance abuse in her adolescence.

[60] He agreed that the instability of her chaotic early childhood and her biological history would have predisposed K.R. to develop mood disorder and experience extreme difficulties as she went through the transition from childhood into early adulthood.

[61] All of those factors – the familial predisposition to substance abuse and mood disorder, and the instability and chaos of her early childhood – could trigger a cascading effect leading to educational, vocational, and relationship problems.

[62] In my opinion, Dr. Janke’s opinion that the alleged sexual assault was one of the factors leading to her difficulties cannot be used as evidence that the sexual abuse did in fact occur. As part of his retainer, he was told to assume as a fact that the alleged abuse took place.

[63] In cross-examination, Dr. Janke agreed that even if her experiences in F.A.G.’s home had been neutral – neither positive nor negative – K.R.’s biology and unstable early years put her at high risk for the development of trust issues with adults, school difficulties, substance abuse, employment problems and negative peer associations:

Well, if we were to take the … experiences in the [G] household out of the equation, and if we were to assume that her life, from the time going into the [G] household to early adolescence was neutral, in other words, she didn’t receive any benefit from placements in terms of stability, loving, caring, intimacy, building of sense of self-esteem and self-worth, and she didn’t have any negative experiences, she would have been at high risk of, of all of those things. The early instability would lead to difficulty in trust which would interfere with her ability to function in school. Probably the most important factor would have been the predisposition to substance abuse, because that in and of itself can lead to basically all of the problems that we are talking about.

So, it the absence of any benefit coming to [K.R.], from the time she entered the [G] home until early adolescence, she would have been at high risk to seek out, as most adolescents, do, some experience with alcohol and drugs, and would be at high risk of developing significant problems …. including trust issues with adults.

[64] In cross-examination, Dr. Janke also acknowledged that it was “very, very common” for adults who sexually abuse children within the ambit of their authority to do so on a serial basis.

[65] Dr. Lohrasbe conducted a two and a half hour interview with K.R. on November 29, 2007. He did not find her to be depressed or to reveal any features of PTSD or a psychiatric disorder. He found that given her chaotic background, she was coping relatively well with the stressors of her life.

[66] Dr. Lohrasbe stated that the plaintiff did not report nightmares or daytime flashbacks to traumatic incidents and had no suicidal ideation. He did not find any PTSD symptomatology during his interview with her. He opined that the stability of her marriage and lifestyle and commitment to improving herself through education had positively impacted her mood since she had seen Dr. Janke in January 2006. He felt that the only psychiatric diagnosis that K.R. demonstrated was sexual dysfunction. He noted that although sexual dysfunctions can follow sexual assault, they can also exist in the absence of sexual assault.

[67] In Dr. Lohrasbe’s opinion, the etiology (or root causation) of K.R.’s problematic behaviours and symptoms was difficult to determine as there were multiple potential factors including genetic vulnerabilities, perinatal maternal substance abuse, and early life exposure to parental conflict and abuse and abandonment. Her teenage years were chaotic, substance-abusing and criminal. He stated that, assuming the alleged sexual assault took place, it was one event among many that influenced her psychosocial development, identity formation, capacity to cope with the stresses of life and the development of psychiatric symptomatology. In his opinion, such a single incident could not be directly linked with non-sexual problems such as conflicts with peers and adults, irritability, moodiness, educational problems, work problems, substance abuse and anti-social behaviours. There were too many influences present to permit singling out any single incident and holding it substantially responsible for those behavioural and symptomatic outcomes. He stated in his report:

The impact of key life events is often cumulative and traumatic events at specific life stages influence the development of vulnerabilities and sensitivities to future life events.

[68] It would be impossible to sort out the relative influence of genetic vulnerabilities, perinatal factors, maternal substance abuse, and early life exposure to parental conflict and abuse.

[69] However, Dr. Lohrasbe agreed that it was possible that the alleged single incident involving the defendant could have had an impact on her sexual dysfunctions. K.R. reported that assault as one of three sexual incidents in the G. home. Dr. Lohrasbe considered that it would be difficult to tease out the effect of the alleged incident with F.A.G. from the effects of the other two incidents. Further, the cumulative effect of the plaintiff’s self-described promiscuous behaviour in her teenage years was also significant. He noted:

While it is true that sexual abuse in childhood can lead to sexual dysfunctions, it is also true that the self-hate and disgust over prior sexual activities during teenage promiscuity can lead to reactive sexual dysfunctions in adulthood.

[70] He concluded that there was simply no way of meaningfully sorting out the relative role of those numerous factors relevant to the plaintiff’s sexual dysfunction. He conceded that, if it occurred, that incident was likely to have had some impact on her subsequent sexual dysfunctions. However, that incident could not be directly linked with K.R.’s other non-sexual problems. He also testified that many people who have not been sexually abused have an aversion to oral sex.

The Standard of Proof:

[71] Although the standard of proof is the civil standard of a balance of probabilities, the evidence must be scrutinized with care and caution where serious allegations such as sexual abuse are in issue.

[72] In B.(M.) v. British Columbia, 2001 BCCA 227, rev’d on other grounds, 2003 SCC 53, Prowse J.A. considered the standard of proof in the context of a foster father’s sexual abuse. At para. 25, she cited Bater v. Bater [1950] 2 All E.R. 458 (C.A.) for the proposition that there are degrees of probability within the civil standard to acknowledge the seriousness of the allegations in issue. Similarly, in C.(R.) v. McDougall, 2007 BCCA 212 at para. 30, Rowles J.A. cited Bater, stating that “[t]he common law recognizes that in cases where morally blameworthy conduct is alleged, the evidence must be scrutinized with care and the civil standard of proof applied so that it is ‘commensurate with the occasion.’”

[73] The difficulties in determining the facts in a case of alleged – but denied - historical sexual abuse cannot be underestimated. The sole issue is credibility.

[74] The classic statement with respect to a witness’s credibility is found in Faryna v. Chorny (1951), 2 D.L.R. 354 at 357, [1952] 4 W.W.R. 171 (B.C.C.A.). There, O’Halloran J.A. stated:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[75] An assessment of credibility of the plaintiff must take into account the fact that K.R. was six or seven years old when the events took place more than 20 years ago. In R. v. W.(R.), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 at 144, McLachlin J. stated:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the event to which she is testifying.

[76] That observation is equally applicable to the evidence of Keith who would have been four or five years old at the material time.

[77] Mr. Shewfelt suggests that on at least two occasions, F.A.G. was a dishonest witness and his testimony should not be believed. On his examination for discovery, F.A.G. had stated that he had no knowledge of any of the foster children using the waterbed. However, he also testified that on more than one occasion, the waterbed was punctured by K.R. or Keith when they were playing on the bed and he had to patch it. He explained that “discrepancy” by stating that his wife had told him the children had jumped on the bed and he had no personal knowledge of that fact.

[78] Second, F.A.G. learned of this litigation when a private investigator came to interview him in May 2006. The investigator warned him not to dissipate his assets or transfer title to his property disposition of the pending litigation. Shortly after that visit, he put his daughter C.R. on the title of his condominium as a joint tenant. He testified that he did so as an estate planning move in response to the death of his wife five years earlier. He was adamant that the change in title had nothing to do with the pending litigation. At the same time, he changed his will and C.R. was the executor of his will. C.R. was not cross-examined on the issue of whether they had discussed the fact that the title change was related to the visit of the investigator. In any event, he did not attempt to transfer his property out of his name.

[79] I did not find F.A.G. to be a dishonest witness.

Conclusion:

[80] There is no question that K.R.’s early life was marked by chaos and pain. She was abandoned by her biological parents and placed in a number of foster homes. She underwent early childhood emotional and behavioural problems. She had serious conflicts with her adoptive parents. She became a victim of serious substance abuse. As a result of those factors, she suffered numerous negative experiences through her childhood, adolescence and early adulthood.

[81] Were it not for the evidence of Keith, K.R.’s allegation would stand alone in the context of F.A.G.’s denial and evidence of his good character and lack of opportunity. However, for the reasons discussed earlier, I did not find Keith’s testimony to be reliable and I assign it no value in corroborating K.R.’s evidence. In some aspects, it contradicted K.R.’s account of the alleged incident.

[82] K.R.’s evidence must be scrutinized in accordance with the high degree of probability required to prove such a grave allegation and the principles set out in Faryna v. Chorny.

[83] There are a number of factors that raise serious concerns about K.R.’s account of the alleged abuse.

[84] Never once in 22 years did she complain that F.A.G. had improperly touched her. Obviously, no independent investigation could be undertaken by the time she made a full disclosure in the context of seeking financial compensation. Some of her recollections were based upon what she read in her social services file. She has no explanation as to why she never made a complaint to the police.

[85] The “disclosure” to Dr. Golden did not include any reference to F.A.G. performing oral sex on K.R. The circumstances of that partial disclosure (that F.A.G. had asked for oral sex) are suspect. She and Keith were accused of having sexual contact and Keith had apparently admitted as much. Her “disclosure” served to deflect attention from any “wrongdoing” she was accused of having done. There is no record of any other disclosures in the extensive Ministry records. K.R. raised the “disclosure” regarding the anatomical dolls for the first time at trial.

[86] I do not find that the plaintiff has established that any of K.R.’s many problems can be attributed to the alleged sexual assault by F.A.G. Both Dr. Janke and Dr. Lohrasbe recognize that K.R.’s difficulties result from a combination of biological and social factors in her early childhood. Both consider that her genetic vulnerabilities, unstable early childhood, abuse and abandonment prior to fostering, strongly predisposed her to substance abuse, extreme difficulties in puberty, and the development of mood disorders.

[87] Clearly K.R. was a very troubled child before she was put into the home of F.A.G. and C.G. She was abandoned by her parents after being mentally and physically abused. Her unfortunate history strongly disposed her to a troubled future. From the time she was five or six she was fiercely independent and strong-willed, loyally supporting Keith and even instigating an investigation with her complaint over the punishment that he received from C.G. I find it improbable that K.R. would not have complained to the Ministry of a sexual assault if it had happened before she made her complaint about C.G.’s treatment of Keith. Considering the Ministry’s consequent scrutiny of the household, it is equally improbable that any sexual assault would have been perpetrated after the investigation. It is further improbable that if any post-investigation assault had occurred, that K.R. would not have made an additional complaint to the Ministry.

[88] Furthermore, K.R. followed a lucrative criminal career for about six years before having children and deciding to upgrade her education. The nature of her criminal involvement in dishonest acts such as fraud and forgery strongly suggests that she is capable of deception for the purpose of financial gain.

[89] In all of the circumstances, I conclude that K.R. has not proven that F.A.G. committed a sexual assault upon her when she was a young foster child in his care.

[90] The plaintiff’s claim is dismissed.

“M.J. Allan J.”
______________________________

The Honourable Madam Justice Allan

Citation:	*K.R. v. F.A.G.,*
	2008 BCSC 1280