J. Q.B. A.D. 1994 No. 2686 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: R. G-H and W. G-H and HELENE CHRISTISON and HELENE CHRISTISON COUNSELLING INC. and K. T. (H.) DEFENDANTS R.A.J. Robertson for the plaintiffs and T.M. McManus A.S. Brent for the Christison defendants R.G. Kennedy for the defendant K. T. (H.) and J. E. Seibel JUDGMENT WEDGE J. November 5, 1996 INTRODUCTION This action arises out of bitter divorce and an acrimonious custody dispute. The parties each contend that the facts bring into conflict different fundamental societal interests: society's interest in the protection of children from abuse, society's interest in the protection of the good reputation of its members and society's interest in the fair and effective administration of justice. R.G.H., the father of two little boys, and his present wife, W.G.H., claim that the mother of the boys, his ex-wife, K.T., and child and family counsellor, Helene C., wrongfully accused them of physically and sexually abusing the children. The allegations appeared as facts in four reports prepared by the counsellor and given to the family court, social services, the police and other persons. The accusations were found by authorities to be baseless. The plaintiffs, the father and his present wife, both medical professionals, say that the dissemination of the unfounded and defamatory accusations was motivated by his ex-wife's attempt to gain sole custody of the boys and that the counsellor was "hired gun" in her hands. [This strategy has been described as the "weapon of the times"]. As result, they have suffered loss of reputation, professional standing and marital discord. The scurrilous content of the reports and the spread of their libellous falsehoods had escalated over period of two years and law suit was the only way of stopping the damage. The co-defendants, the mother and counsellor, protest that they were both under duty to report the boys' disclosures of physical and sexual abuse in the father's home. The reports were prepared for use in family court custody proceedings and their maker is protected by law from being sued. The motive behind legal action is to bankrupt the ex- wife so that she will be unable to oppose an application by the father to change the joint custodial arrangement, if he and his wife decide to move to the United States to practice medicine. In the best interest of the children, the trial should never have happened. The issues to be decided are:1.Did the co-defendants libel the plaintiffs by publishingeach of the four reports thus causing damage to theirreputation?2.Did the co-defendants conspire together to libel theplaintiffs and wrest custody from the father?3.Was the co-defendant counsellor incompetent and unqualifiedto assess and counsel the children and negligent in thepreparation of the reports? THE FACTS There is little dispute over the sequence of events leading up to trial. The facts must be set out in some detail. K.T. and R.G.H. were married in 1980. R.G.H. is specialized medical doctor and K.T. was trained as nurse. They had two children, (born […], 1987) and K, (born […], 1989). By 1990, their marriage had deteriorated to the stage that they agreed to separate and prepare to divorce. On December 27, 1990, K.T. moved to Vancouver with friend, David. She left she said, because R.G.H. "did not understand what my goals and aspirations were" and that she needed to remove herself temporarily "to learn to be better mother." She told family counsellors in British Columbia and later in Saskatoon, horror stories of R.G.H.'s control over her, his terrible temper and his physical and sexual abuse of her. According to R.G.H., who denied abuse, K.T. left to resume her education. Before separation, the parents had agreed in writing that they would have joint custody of the boys. Their primary residence was with their father and their mother returned from Vancouver one week-end month to be with them. This continued until May 29, 1991, when K.T. moved back to Saskatoon now "ready to be mother to her children." R.G.H. claimed and K.T. did not deny, that what K.T. really wanted was reconciliation between them. But R.G.H. was not interested and had started to date W.G.H., divorced medical doctor with one child, M. In June of 1991, R.G.H. and W.G.H. and their children started living together as blended family. Almost immediately, K.T. began to feel that W.G.H. was usurping her place as and K's mother and the seeds were sown for the four acrimonious years to follow. Upon application to the Family Court by K.T. in February, 1991, the custodial arrangements had been continued on an interim basis, but now that she was in Saskatoon again, she wanted prime residency. Eventually, in February, 1992, week long trial on the issue of custody was held in Unified Family Court before Madam Justice M. Carter, who made the interim arrangement final. In her judgment dated March 5, 1992, Madam Justice Carter observed that "the relationship between this young woman, W.G.H., and K.T., the mother, were, to put it gently, strained: confrontation, accusations, intimidation were used instead of ordinary communication." (p. of unreported judgment). At p. of her judgment, Madam Justice Carter stated that W.G.H. had telephoned K.T. indicating that K.T. should ". butt out. K.T., on the other hand had called W.G.H. names that are usually attributed to fish wives, and no doubt goaded her into attacks on K.T.." Madam Justice Carter refused to disrupt the status quo, that being that and reside in their father's home, and stated: at the conclusion of the trial gave judgment for divorce as both parties undertook not to appeal the divorce judgment, and as the hostility is so high between W.G.H. and K.T., ordered that the judgment take effect from the 29th of February, 1992 (thus ensuring that the celebration of that event would be only every four years). Within eight months of the trial, on October 23, 1992, K.T. applied to vary Madam Justice Carter's order on the grounds that the boys were not being cared for properly in their father's home. In support of his allegations, she filed report prepared by Helene C. (of Helene Christison Counselling Inc.). This report dated October 16, 1992, is the first of the allegedly defamatory reports. Helene, who had not been able to interview R.G.H. and had never been in K.T.'s home, after interviewing K.T. and/or the children about nine times in September and early October, recommended that the children "should unquestionably be placed with their mother for the best possible care." Madam Justice Carter struck K.T.'s affidavit with the attached report and denied the request for variation. (The four Reports are exhibits on record). On December 16, 1992, as the result of an application by R.G.H., consent order was issued, directing compensatory Christmas access to K.T. but dismissing his application to restrain his ex-wife from taking the children for any counselling for year. By this time, they had seen Helene for seven more sessions. On this application Helene filed an affidavit to which she attached Report #1. This affidavit contained the first innuendo of sexual improprieties by W.G.H.. It was also sworn to be made in support of an order for home study which (insofar as could ascertain) had not been included in the motion nor consented to by either R.G.H. or K.T. in the December 16, 1992 order. In February of 1993, only three months later, K.T. again applied to vary the custodial arrangements. The alleged change in circumstance was that K, the younger child, was now being physically abused by his father and W.G.H.. On January 6, 1993, K.T. noticed bruises on K's buttocks. She immediately took the child to their family doctor, Dr. Mark Boechler, who saw "faint bruising" but could not determine the cause. Not satisfied, K.T. photographed K's buttocks and took the photographs to Dr. Anne McKenna, pediatrician at the University Hospital, where W.G.H. also practised. On the strength of K.T.'s information and the photographs, Dr. McKenna was of the opinion that the bruises were "unequivocable evidence of child abuse" and recommended that R.G.H. and W.G.H. should not have access to the boys for three months. Dr. McKenna sent copy of her report to the Department of Social Services so that there could be an investigation by the department and/or the police. Faced with Dr. McKenna's opinion and further report prepared by Helene C., dated February 9, 1993 (Report #2 Progress Report for Children), R.G.H. sought an opinion from Dr. Martel, another pediatric specialist. Report #2 contained allegations of physical and sexual abuse and alcoholism. By this time, W.G.H. was pregnant with R.G.H.'s child and consumed very little alcohol. In an affidavit, R.G.H. had admitted to spanking on his bare buttocks with his hand. had been chasing his step-brother M, another 3Ã¯Â¿Â½ year old, with play scissors sharp enough to cause injury. R.G.H. deposed that in retrospect, he believed that he struck too hard but felt that the situation was serious at the time. Dr. Martel disagreed with Dr. McKenna. He wrote that he would not and could not form the opinion that the condition shown in the photograph was "unequivocable evidence of child abuse." In February 8, 1993 affidavit, K.T. said that she feared for the children's safety if their father had unsupervised access. (At trial the year before, K.T. had said that R.G.H. was good father). It is obvious that Mr. Justice F. Dickson did not find child abuse. On February 12, 1993, he dismissed K.T.'s variation application and ordered that she pay $600.00 costs, rather unusual order in family court chamber applications. That decision did not bring an end to the ever escalating dispute. Acting on Dr. McKenna's report, in February, the Department of Social Services investigated the complaint. Norm Pantel, social worker who interviewed R.G.H., W.G.H., K.T. and the boys, did not take the allegations of abuse seriously. He believed that Helene C. was "hired gun." Not deterred by all of the above, Helene C. prepared the report dated June 23, 1993, (Report #3 Follow-up Psychological Report) announcing further disclosures by the children at the continuing counselling sessions. The report contained degrading accusations of sexual touching, sexual exploitation of and alcoholism against W.G.H. (R.G.H. had become less of target by this time). Copies of Report #3 were now sent to three social workers at the Department of Social Services, to Dr. McKenna and probably to the police. In any event, in July of 1993, Corporal Simpson of the Saskatoon Police Service investigated the allegations of the sexual criminal offences. He interviewed all of the parties and reported that had made no disclosures to him and that "there was no evidence of abuse." K.T. pressed on. On August 18, 1993, she noticed several bruises on K's body which he alternatively said, then denied, were caused when W.G.H. hit him with bat. K.T. took to see Dr. Misfelt, who reported on August 19th, that she "could not say conclusively that the bruises were the result of the physical abuse." (The very minor bruises seemed to be those common to all active little boys not the type for which one would expect trips to emergency departments or doctors). Maureen Millar, of the Department of Social Services conducted an extensive inquiry this time. During September, meetings and interviews with all concerned took place. On September 27, 1993, Ms. Millar reported that "there was no evidence of abuse." All was quiet for few months until January 1994. Helene C., apparently outraged that her opinions had been ignored by the courts, the Department of Social Services, the police and doctors, except Dr. McKenna, wrote the report of January 6, 1994, (Report #4 Short But Disturbing Up-date), repetition of horrendous abuse and disgusting drunken behaviour by W.G.H. and litany of praise for K.T., her client. copy was sent to Maureen Millar and to the City Police. R.G.H. and W.G.H., through their counsel had, several times during 1993, attempted to have K.T. consent to home study but there was never an agreement as to who should conduct it. Finally, in early 1994, Dr. McKenna was contacted and asked to refer the youngest child, K, to Dr. Ester Cherland, child psychiatrist. After the usual assessment procedures and tests were carried out, Dr. Cherland reported back, on February 21, 1994, to Dr. McKenna. On p. of Dr. Cherland's letter, this appears: The question Dr. McKenna asked of me was whether could give an opinion to her about the allegations of abuse of [K] which have not been substantiated. Do they appear credible? It is not difficult to infer that by early 1994, Dr. McKenna was having second thoughts about her diagnosis of year before which had been used by K.T. in attempts to vary custody. In this trial, the spanking seemed to be the focal point of the defence and was the only real independent evidence of excessive parental discipline. Dr. Cherland's assessment letter is interesting. It appears to be very neutral, makes no accusations of inappropriate behaviour by any of the parties but the inference is clear: she found no sexual or physical child abuse and was of the opinion that "was doing very well in his growth and emotional well being. This is evidenced by comments from both of his teachers." She also thought that he had had enough counselling. On p. of the report she concluded: My suggestion is that because of the ill feeling from the beginning, it may be appropriate for [K] to not continue to see Ms. Christison. If another counsellor is desired by K.T. or R.G.H. feel that it is important they both agree about the counsellor before [K] were to begin. It may be important for that counsellor (sic) understand both parents (sic) position before beginning and decide if the separate goals the parents may have for counselling are compatible enough to be therapeutically helpful to [K]. If were to see [K] for an assessment of his developmental and emotional well being, would not investigate further the current allegations. feel it is important to leave any issues with the Department of Social Services and the police. In addition, would like about months to pass from his current counselling sessions. As stated before would see [K] with each of his parents on one occasion and am not prepared to see either [K] or his brother in counselling. In letter to Dr. Cherland dated May 2, 1994, Helene C. wrote that she was responding to the above report. The tone of this letter was vindictive, self-serving and defensive. She questioned Dr. Cherland's judgment and actually asked her to revise her report (on p. 2): In light of these points, wonder if you would be prepared to revise your report and recommendations and whether you would at least be prepared to interview these children after have had an opportunity to prepare them to speak to you freely and without fear. six month wait is ludicrous when one considers the ongoing damage these children are suffering. (the underlining is mine) K.T. followed Dr. Cherland's recommendation that counselling be brought to halt for six months. But Helene C., now in defence of her reputation, kept the acrimonious feelings festering. In August 1994, the six month interlude during which Helene C. could not see the children, was coming to an end and during which period no further "disclosures" by the boys were reported. R.G.H. and W.G.H., on the advice of their legal counsel, decided that the only way to stop the perceived damage to their reputations and their emotional well-being was to launch this law suit. In flurry of publicity near the end of 1994 and early 1995, Helene C. gave interviews to the Star-Phoenix and CBC in which she aired her complaints about being sued. She did not name the plaintiffs but portrayed herself as the sole saviour of two abused children whose complaints were not taken seriously by any of the authorities charged with child protection, including the courts. In the meantime, K.T. had met Don J., her present husband, in July of 1994 and she married him in April of 1995. Don is social worker with the Young Offenders branch of the Department of Social Services. He is divorced and he and his ex-wife have joint custody of their two children. The children reside with their mother and Don has access five days month when his children and K.T.'s become blended family during K.T.'s access to and K. The tensions and acrimony lessened somewhat, according to W.G.H., after K.T. changed solicitors and retained Mr. Kennedy of the Gauley firm in early 1995. In letter he suggested that, in the best interest of the children, an agreement should be reached, perhaps through mediation, to prevent trial in which "no party wins all parties lose." This did not happen but on July 15, 1995, K.T. tendered written apology "To Whom It May Concern." The apology was not accepted by R.G.H. and W.G.H. as being an unequivocable apology. (The effect of this apology will be discussed later). So, as shield from the weapon of choice in custody disputes, this trial which should never have happened, did happen. THE ACTIONS LIBEL The elements of the tort of defamation are so well established in the common law that there is no need for authoritative support. The plaintiffs must prove that each of the defendants published written defamatory statements which would likely injure their reputations. They may rely upon three presumptions: that the statements were published maliciously (malice in law), that the statements were false; that they suffered damage. To defend themselves, each of the defendants has the burden of establishing that she enjoyed privilege which may be absolute or qualified and/or statutory. Absolute privilege gives total protection from law suits; qualified privilege may be defeated by proof by the plaintiffs that the defendants acted with actual malice; the degree of statutory privilege depends upon the protection granted by particular statute. libel action may also be defended by plea of justification: the defendants must prove that every defamatory statement is true. Justification is not an issue in this trial. The plaintiffs were advised in mid-July 1996, that K.T.'s justification plea would be withdrawn. This was done formally on behalf of K.T. on the first day of trial and on behalf of Helene C. on the fourth day of trial. THE LIBEL ACTION AGAINST K.T. Publication Every repetition of defamatory statement is new publication the person who repeated it is to be treated as though it had originated with her. It is no defence that K.T. merely distributed Helene C.'s Reports in which the defamations were written. K.T.'s admissions and the evidence establish that she published the Reports as follows: Mr. McAskill, Principal, River Heights School Report #1 Mary Hanna, Kindergarten Teacher, River Heights School -Report #2 Joan Lutz, Teacher, Park Heights Pre- School Report #3 Laurie LaFortune, Teacher, Park Heights Pre-School Reports #1 #2 Carol Cunningham, Teacher, North Saskatoon Pre-School. Ron Boden, Principal, River Heights School Report #3. Dr. M. Boechler Report #1 Workers at the Saskatoon Community Health Clinic- Reports #3 Dr. Marlys Misfeldt. #1 (perhaps #2 3#). Dr. Cherland- reports #1, #2 and #3. Defamatory At the outset, K.T.\'s counsel conceded that, ontheir face, the allegations of sexual and physical abuse andalcoholism in Reports #2, #3 and #4 were defamatory. Report #1 dealt, for the most part, with perceived emotional neglect by R.G.H. and W.G.H., the wealthy, busy professionals. The children were said to be in danger of becoming "poor little rich kids". While the Report is critical of R.G.H. and unprofessionally one-sided containing assumptions without factual basis, do not think that it is defamatory. In hindsight, R.G.H. might have been wise to attend one meeting with Helene C. and K.T. (with or without the boys) to attempt to stave off further attacks. Qualified Privilege K.T. must therefore establish that she had qualified privilege to publish Reports #2 and #3. person who makes statement in discharge of public or private duty about subject matter in which both that person and the person to whom the statements are made have legitimate common interest is said to enjoy qualified privilege. In Sapiro v. Leader Publishing (1926), 20 Sask. L. R. 449, the Saskatchewan Court of Appeal explained that it is the special relationship between the publisher and the person to whom the communication is made that makes it her duty to speak. In L.G.C. v. V.M.C. [1996] B.C.J. no. 1585, Dorgan J. of the British Columbia Supreme Court explained parental duty in the context of its facts (on p. 7): Similarly it is not difficult to conclude that parents will be held to the highest moral, legal and social duty to receive information from their children regarding incidents or allegations of sexual abuse and that their interest in receiving communications of this nature are common with the interests of their children who make such communications. The fact that the alleged abuser is one of the parents, it seems to me, highlights the importance of legally recognizing this privilege. If the law did not recognize communications of this nature as being privileged, little protection would be afforded those members of family who stand in most need of it. To protect their children is, without doubt, one of the highest duties imposed upon parents. But the "communications of this nature" referred to in the above passage were communications of adult children to their mother about sexual abuse by their father when they were younger. These persons were the defendants being sued by their father. Their mother believed them. The situation here is in no way comparable. Teachers, doctors, nurses, do have reciprocal duty to receive such information from parent and then report it to proper authorities but when K.T. delivered the Reports to the recipients, she knew that the accusations had been declared to be without foundation by the Department of Social Services, the police and the court, and did not pass on that information. Rather, she told them to keep the reports confidential. The Supreme Court in Hill v. Church of Scientology and Manning (1995), 1995 CanLII 59 (SCC), 126 D.L.R. (4th), 129, emphasized that qualified privilege attaches to the occasion upon which the communication is made, not to the communication itself. Although have reservations, shall proceed on the basis that prima facie, K.T. enjoyed qualified privilege because parental duty is so compelling. In order to defeat the defence of qualified privilege, the burden of proof rests on the plaintiffs to establish that the statements were made with express malice which can be proven by extrinsic or intrinsic evidence. The Supreme Court in the Scientology case, commented upon the concept (on p. 170, para. 145): Malice is commonly understood, in the popular sense, as spite or ill will. However, it also includes, as Dickson J. pointed out in dissent in Cherneskey, supra, at p. 346, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created: see, also, Taylor v. Despard (1956), 1956 CanLII 124 (ON CA), D.L.R. (2d) 161, [1956] O.R. 963, 1956 CanLII 124 (ON CA), [1956] O.W.N. 829 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth: see McLoughlin, supra, at pp. 625- 6, and Netupsky v. Craig (1972), 28 D.L.R. (3d) 742 at pp. 746-7, 1972 CanLII 19 (SCC), [1973] [146] Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded: see Raymond E. Brown, The Law of Defamation in Canada 2nd ed. (Scarborough: Carswell, 1994), at pp. 13-193, 13-194; Salmond and Heuston on the Law of Torts, 20th ed. by R.F.V. Heuston and R.A. Buckley (London: Sweet Maxwell, 1992), at p. 16-7. As Earl Loreburn stated at pp. 320-21 in Adam v. Ward, supra: the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. [147] In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. (Underlining is mine). The relationship between K.T. and W.G.H. was particularly acrimonious but K.T. insisted that her only motive in publishing the slanderous falsehoods was the welfare of her children. She had duty to protect them from abuse by making known to various teaching and health professionals what the children had told her about their father's "alcoholic home" and W.G.H.'s disgusting sexual misbehaviour. In para. of the apology of July 15, 1996, she wrote: These reports are defamatory of R.G.H. and his wife W.G.H. as they contain allegations and imputations concerning the character and reputation that are wrong, totally inappropriate, and have no basis in fact. If, as K.T. said, the allegations were "wrong" and had "no basis in fact," how could publishing them be in the best interests of her children? Reports #2 and #3, containing untrue and degradingallegations are in themselves intrinsic evidence of malice. Each time K.T. failed in her application to vary custody with Helene C.'s help, the nature of the Reports become more scurrilous. In her evidence at trial, K.T. seemed to retract her admissions in the apology that the allegations in the Reports were true, by repeating, like broken record, "I believed what my children told me." The whole long history of K.T.\'s attempts in andout of court to discredit R.G.H. and W.G.H. so that K.T. couldhave the children live with her and restrict access to R.G.H.,is extrinsic evidence of "impure motive" or, in other words,"malice". The information communicated was not reasonably appropriate in the context of the circumstances existing when K.T. published the Reports. K.T. taped every telephone conversation between her household and R.G.H.'s for period of about four years, from 1992 to 1996, for total of over 24 hours of recordings. (Helene C. was not party to any of these conversations.) The existence of these tapes came to light during Mr. Kennedy's cross-examination of W.G.H.. The reasons given for my refusal then to stay proceedings or allow lengthy adjournment of the trial are on record. add now that allowing stay of proceedings for non-disclosure or long delay in the trial for "fishing expedition" would not have been in the best interests of the children. In Fattali v. Fattali, 1996 CanLII 7272 (ON SC), [1996] O.J. no. 1207, (p. 5), the family court judge said, in refusing the admission of an audio tape in custody hearing: His counsel wished the audio tape to form part of the evidence at the motion. In my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of children should not be decided on evidence the product of calculated subterfuge. It does not help the father's position to be plotting tricks or deceit to advance his cause. K.T.\'s excuse (which I do not accept) was that she taped inorder to keep track of the number of telephone calls she madeto her children. I think it was just another trick to try andadvance her cause. The Witnesses In his testimony R.G.H. said that K.T. was very angry when he began dating, and then living with W.G.H.. R.G.H. thought that the children were adjusting well and had adapted to the change in their living arrangements. They were, at least in his home, normal, happy, scrappy little boys who did not need counselling or therapy. In the fall of 1992, after they had lived with R.G.H. for nearly two years, Helene C. telephoned him to request that he take part in her counselling sessions. He refused for that reason. Besides, he said, he had information that Helene C.'s professional expertise was suspect. The continuing variation applications and the reports alleging alcoholism and sexual abuse outraged him. R.G.H. regretted the severity of the spanking he had given in January of 1993, but only spanked because of "life and limb issues." The Reports had devastating effects on his wife; she suffered insomnia and emotional distress and their marriage deteriorated. The allegations of bizarre sexual behaviour by W.G.H., which he must have permitted, were known around medical circles and referrals of children to him by other doctors practically ceased. The tenor of his practice changed. At this time he and W.G.H. have no plans to practice in the United States. W.G.H.'s distress was evident as she sat through the whole trial. She was very emotional witness and did not disguise her continuing animosity towards K.T. and her goal to expose Helene C. as incompetent. Between them, they have made her life "hell" for the past four years. Her marriage had been in danger of falling apart and her practice at the University Hospital was curtailed. W.G.H. presented herself as very intelligent, outspoken, determined and somewhat arrogant person. She vehemently denied, and cried over each degrading passage from Report that was referred to in court. W.G.H. admitted that she was capable of calling K.T. bitch and Helene C. charlatan. There were some things which she could not, or would not, recall. Her anger at times was so all consuming that it seemed to obliterate some of her memory. W.G.H. did not learn until August of 1994, how widely the Reports had been circulated. She testified that had she known earlier, she would have jumped off the University bridge. She denied saying some things which she probably did say. An example was her denial of telling Judy Hubbard (Don's ex-wife) that she wanted to bankrupt K.T. so that the court actions would stop. But for the most part, with few exceptions, found her to be credible witness. think that, to certain extent in the beginning, W.G.H. helped to foster K.T.'s jealous rage towards her. Had she been little more tactful and less blunt about her motherly responsibilities towards her husband's children and not referred to them as "her boys" in K.T.'s hearing, K.T. might not have felt so threatened and vindictive. Don Hubbard, K.T.'s present husband and social worker, did not meet K.T. until July 1994, and married her in 1995. He post dated the counselling sessions, the Reports and the most frenzied period of K.T.'s attempts to change custody. Don and his ex-wife Judy have two children who reside with their mother, spend access periods with Don and K.T., and frequently and K. The three households are good examples of modern blended families. Don said that he observed signs of distress in and late in 1994 and thought that they needed professional help. Don does not believe in corporal punishment nor does K.T. now although she had admitted to having earlier spanked occasionally. Don, who could not in any sense be described as an independent witness, did concede that when his children and K.T.'s were together, they all sometimes exhibited tantrums and aggressions like all normal children. Judy Hubbard testified that she and Don got along together quite well after their separation and had no real trouble in arranging access until Don met K.T.. It seems, she said, that "after K.T. comes on the scene lot of people have trouble Don was like puppet." K.T. once accused Judy of abusing her children. Don and K.T. tried to insist that Jeremy, one of Don's children, take counselling but Judy saw no reason for it. There was even threat to "take Judy to court" to change the joint custody arrangement. Since this action was started, access has become easier. Judy had contacted W.G.H. and R.G.H. in February of 1995 because she had heard they were having problems with K.T.. They met at R.G.H.'s home. Judy confirmed that W.G.H. had said that they wanted to bankrupt K.T. so she could not go to court any more. (W.G.H. was probably capable of having said this.) As witness, K.T. was the complete opposite of W.G.H.. As calm and cool as ice on the stand, she played the part of the reasonable, aggrieved, concerned parent to the hilt. K.T. is also well educated and intelligent woman. She earned Bachelor of Science in Nursing in 1979, and Bachelor of Commerce degree in 1992, after her divorce. K.T. returned from her sojourn in Vancouver the spring of 1991, only to find that R.G.H. was committed to W.G.H. and that W.G.H. seemed to be usurping her place as and K's mother. Then the struggle for custody as outlined earlier took place. After checking with Mr. Timothy Turple, her legal counsel at the time, K.T. went to see Helene C. and then took the boys to her for counselling and/or therapy. From September 1992 to February 1994, Helene C. had approximately 45 hour long sessions with the children, during which time the boys, particularly K, were said to have made increasingly disturbing disclosures to her. K.T. testified that "Helene said the children told her things. believed what they had told her." With the discovery of the bruises on K's buttocks in January of 1992, K.T. thought she had concrete evidence of abuse, confirmation of the disclosures to Helene and fuel for the next run at custodial variation. On K.T.'s behalf, it was argued that her belief in what the boys disclosed to her and to Helene C., is evidence that she acted without malice to protect them from abuse. K.T. is intelligent and experienced enough to have realized that the sophisticated wording of many of the "disclosures" was so beyond the language skills of 3Ã¯Â¿Â½ year old child, that they were not to be believed. She did not expect the teachers and others to whom she published Reports #2 and #3 to take them literally and to act upon them immediately because she asked them to keep the Reports confidential. Had she believed the dangerous allegations, she would not have said, through her legal counsel in letter dated January 26, 1995 (an exhibit at trial) "that nothing that had transpired in the past can or should affect the boys' residence." All in all did not find K.T. to be an entirely credible witness. In the context of libel action (or negligence or conspiracy) alleging sexual physical abuse, having its roots in custodial dispute, balancing of the interests of the parties starts with the scales heavily weighed on the side of the children's interests. Society is so shocked and revolted by disclosures by children of abuse at the hands of persons entrusted with their care, that there is almost presumption that the allegations are true. Anyone with reasonable grounds to suspect abuse by another has moral and legal duty to reveal the disclosure to child protection or police services which in turn have duty to investigate. In D.B. v. Children's Aid Society of Durham (unreported [1994] O.J. no. 643, action 20962/87) March 23, 1994, the trial judge quoted an exceptionally well-qualified expert on child and family problems (in para. 55): Perhaps the most difficult thing for social worker to achieve is to be able to manage her own feelings while participating in the investigation. She must at all times realize that an alleged perpetrator will always be considered to be guilty by the outside world and should therefore avoid adding to this problem. She indicated that this is particularly so where this type of allegation is made during the course of custody dispute. Such is the increasing frequency of such allegations that she described this tactic as "the weapon of the times". The societal value of good reputation was proclaimed by the Supreme Court in the Scientology case on p. 10: Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy good reputation. reputation tarnished by libel can seldom regain its former lustre. democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. And on p. 176: The written words emanating from the news conference must have had an equally devastating impact. All who read the news reports would be left with lasting impression that Casey Hill has been guilty of misconduct. It would be hard to imagine more difficult situation for the defamed person to overcome. Every time that person goes to the convenience store, or shopping centre, he will imagine that the people around him still retain the erroneous impression that the false statement is correct. defamatory statement can seep into the crevices of the subconscious and lurk there every (sic) ready to spring forth and spread its cancerous evil. The unfortunate impression left by libel may last lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in manner that will truly remedy the situation. (Emphasis is mine) The underlined words are an eloquent description of what W.G.H. said she felt when her colleagues at the hospital, the nurses, teachers and friends on social occasions looked at her in certain way and she did not know who was aware of the existence or contents of the Reports. In the balancing act here, adding the weight of time during which the "truth" of falsehood was proclaimed and the Reports were at large, the malicious motive and the equivocal apology, the scale is tipped in favour of the reputations of R.G.H. and W.G.H.. LIBEL ACTION AGAINST HELENE C. AND HELENE C. COUNSELLING INC. Helene C. did not give evidence at trial. All claims against her were defended with the propositions that Helene C. enjoyed either an absolute privilege which protected her from all legal actions arising out of her position as witness in court proceedings or qualified statutory privilege under The Child and Family Services Act, S. S. 1989- 90, c. C-7.2. Absolute Privilege agree that the law with respect to witness immunity is ancient and "absolutely unarguable." An accepted definition of absolute privilege, of which witness immunity is branch, is found in The Law of Defamation in Canada, Brown (2d) Edition, 1-17: .... There is also an absolute privilege for all those communications made in the course of, or incidental to, the processing and futherance (sic) of judicial and quasi-judicial proceedings. tribunal is exercising functions equivalent to those of court if it is adjudicating upon and determining legal rights between parties, and if it has the power to require the parties' attendance, hear evidence under oath, administer fines, impose punishments, render decisions and enforce orders. The protection extends to all those persons who participate in the proceedings, including the judge, jury, witnesses, parties and their counsel. Also it extends to the content of all pleadings, documents, and testimony offered in evidence, and to all actions taken preliminary but necessary to the institution or processing of the action or essential to the judicial review of or execution upon the judgment or decision. Insofar as the first two of Helene C.\'s Reports weretendered in Unified Family Court variation hearings, and theother two were prepared in contemplation of using them infuture hearings, Helene C. unquestionably enjoyed an absolute privilege. On the other hand, it is also absolutely inarguable that the privilege was lost when Helene C. published them outside the boundaries of the court proceedings. This is true whether the Reports were to be considered those of an ordinary witness or an expert witness. In the British Columbia cases of Carnahan v. Coates (1990), 1990 CanLII 2299 (BC SC), 71 D.L.R. (4th) 464 and M.-A.(N.) v. M.-A. (I.A.S.) (1992), 1992 CanLII 254 (BC CA), 93 D.L.R. (4th) 659, the courts explored the rationale behind witness immunity. On p. 664-665 of the later case, the following appears: The rationale for the protection offered witnesses from suit, expressed in Watson v. M'Ewan, [1905] A.C. 480 (H.L.), was expressly adopted by the Supreme Court of Canada in Halls v. Mitchell, [1928] D.L.R. 97, 1928 CanLII (SCC), [1928] S.C.R. 125. There Duff J. stated, at pp. 113-4: The basis of the judgment in Watson v. M'Ewan, [1905] A.C. 480, is that statements made by witness as such, in Court, as absolutely privileged, and that this privilege would become illusory, were it not applicable for the protection of statement by an intending witness, as to the nature of the evidence to be presented in Court. As the protection by privilege of the testimony of witnesses in Court is regarded by the law as essential to be administration of justice, and as the extension of that protection to such preliminary statements is regarded as essential to the effectiveness of the substantive privilege, such preliminary statements are held to fall within the rule; but, as Lord Halsbury points out, this strict necessity is the basis of the privilege. In Watson v. M'Ewan there was no question, as Lord Halsbury observes, of communications to persons other than those engaged professionally in preparing the evidence to be presented in Court, and obviously the principle does not extend to such collateral statements. It protects the respondent, whatever his motives may have been, in respect of statements made before the Workmen's Compensation Board and in respect of statements made to the claims agent, voluntary though they were, as to the evidence which he was prepared to give; but this privilege has no relation to the statements made to Dr. Campbell, to Dr. Hewitt, or to Dr. McCallum. (The underlining is mine). The principle thus has no relation to the "collateral statements" to any of the organizations or individual doctors to whom the reports were published for purposes other than use in court. In these two cases, the British Columbia courts in these two cases were very concerned with the protection of the expert witness who, they said, are increasingly necessary for the administration of justice. Any relaxation of the witness immunity rule would discourage experts from reporting or testifying. (The loss of well-qualified, well-prepared expert opinion would be indeed unfortunate but perhaps little discouragement of ill-prepared, one-sided "hired guns" would not be amiss). Once Helene C. published her Reports to various social workers at the Department of Social Services, the police and the doctors, she forfeited her absolute privilege. Statutory Privilege There is some evidence gleaned from the read-in questions from Helene C.'s examination for discovery and the adoption of her pleading by the plaintiffs' counsel, that Helene C. may have had prima facie statutory privilege under s. 12(1) or (3) of The Child and Family Services Act for her publications to the Department of Social Services and the 12(1) Subject to subsections (2) and (3), every person who has reasonable grounds to believe that child is in need of protection shall report the information to an officer or peace officer. (3) No action lies against person who makes report pursuant to subsection (1) unless that person makes it maliciously and without reasonable grounds for his or her belief. (Emphasis is mine). It is to be noted that the Act provides that no action lies unless the person making report makes it maliciously and without reasonable grounds. Both criteria must be satisfied. For the reasons given in my discussion of the libelaction against K.T., I find that Reports #2, #3 and #4 were,on the whole, slanderous. Report #1 was not. It is not necessary or practical to classify all of the individual sentences and phrases in these Reports as either slanderous or innocuous. But here are examples: [B] disclosed and demonstrated how W.G.H. screeches, stumbles, and walks when she drinks. It was very clear that he knew first hand about drunkenness. [B] also disclosed that she fell and smashed bottles in her attempt to refill, and she once threw-up on him and he had to go wash off by taking bath. (June 22, 1993 report). Both children disclosed separately that Ms. Kirkpatrick was lolling about naked with her hand on her crotch and flopped on the couch holding on to her crotch asked if they thought she was being polite by covering her crotch while naked, they indicated that she was enjoying herself and doing it for fun. (June 22, 1993 report). [K] also disclosed that W.G.H. made him comb her belly to the crotch. (June 22, 1993 report). [K]... disclosed that she used Fisher Price knife and threatened to cut off his penis, he ran his finger down his chest and belly and pointed to his face, and his bum. (June 22, 1993 report). Both children say that W.G.H., drunk or sober gets up and hits the children for no apparent reason that the children understand. (June 22, 1993 report). [K] is singled out and taken to bed with adults and his tummy and chest touched. W.G.H. also licks his face and chest with his pants on, but no shirt. He is also exposed to "running naked in the morning and holds on to her "pee pee" when everyone is gone." (June 22, 1993 report). he indicated that she squeezed his penis hard before he pooped. (June 22, 1993 report). Helene C. withdrew her plea of justification at trial. She is not claiming the truth of the above statements nor has she tendered any apology. Reasonable Grounds The legislation requiring person to have "reasonable grounds" of abuse or neglect before reporting information to an officer or peace officer, imports, think, an element of negligence mere suspicions are not enough. The person intending to report has duty to make careful (reasonable) inquiries as to the accuracy of the information, considering its sources. person in the position of Helene C., purporting to counsel over 200 troubled children or families year, must be, or should be, aware that in the heat of custody battles charges of emotional, physical and sexual abuse are made with increasing frequency. shall examine Helene C.'s credentials and techniques more fully in another context. Suffice to say here that two well-qualified experts, after examining Helene C.'s curriculum vitae, the Reports and viewing video tape of one interview with K, were both of the opinion that her qualifications and performances were not up to the professional standards of person holding herself out to be "psychological" counsellor and therapist. As an unprofessional observer of the video tape, was dismayed at the leading questions and unfounded assumptions that the child was about to disclose some horrendous abuse at W.G.H.'s hands and that was "scared" near the end of the taping. It appeared to me that wanted to go home because he was bored after 45 minutes of "aeroplane play." That child was subjected to at least 40 other such sessions over two-year period. For Helene C.'s grounds of belief to be reasonable, she should have gone beyond K.T.'s word and K's painfully extracted "disclosures", if that is what they were. She fails the first branch of the exception in s. 12(c). Malice Reports #2, #3 and #4 contain in them intrinsic evidence of malice. am satisfied that Helene C.'s actions and words outside of the protection of the court proceedings are clear extrinsic evidence of malice. In the text, Duncan and Neill on Defamation, (2d) edition, p. 114, para. 17.05, there is an extensive discussion on malice in the context of qualified privilege. Particularly relevant to this case is the following passage (p. 115): Even positive belief in the truth of what is published on privileged occasion which is presumed unless the contrary is proved may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or illwill towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. (Underlining is mine). In her examination for discovery and statement of defence, Helene C. admitted that she pursued her attempts to gain validity for her reports for her "own impugned personal and professional integrity and reputation." She had been thwarted by the courts, the Department of Social Services and the police and her dominant motive in further publication was to obtain "some private advantage, unconnected with the duty or interest." After the law suit was launched, she involved the media in the case not for the protection and interest of the children, but for her own protection and interest. In an article in the Star-Phoenix, she implied that her allegations had been exaggerated to force authorities to accept her information. Her motivation was not pure. Malice has been well-established. The second branch of the statutory exception is of no assistance to Helene C. Common law qualified privilege The statutory privilege in s. 12 of The Child and Family Services Act is perhaps more stringent re-statement of the common law governing qualified privilege. In addition, her publication went beyond "officers and peace officers." It follows that any such privilege which she may have had was defeated by malice. CONSPIRACY K.T. and Helene C. This cause of action in the plaintiffs' claim was the subject of non-suit motion by both defence counsel.  Itwas submitted that the conspiracy claim should be dismissed,since damages in the alleged conspiracy merge in theindividual damages attributable to the publications of thedefamatory material. In support of this merger argument, decision of the English Court of Appeal in Ward Lewis [1955], All E.R. 55, was relied upon. Lord Denning said (at p. 56): It is important to remember that when tort has been committed by two or more persons an allegation of prior conspiracy adds nothing. This case was applied in Elliott v. CBC (1993), 24 Carswell's Practice Cases (3d) 143, which held that where conspiracy to commit tort was alleged, the claim for conspiracy merged with the claim in respect of the underlying tort. In restrospect, think that the only flaw in the non-suit argument was that it was probably premature. At trial, there had been, as yet, no determination that any tort had been committed. That finding has been made now. On that basis, dismiss the conspiracy claim against all defendants. Had not come to this preliminary conclusion, it would have been difficult, on the evidence, to find that there had been prior agreement between the defendants and action taken together to cause damage to R.G.H. and W.G.H.'s reputation. NEGLIGENCE Helene C. and Helene C. Counselling Inc. The plaintiffs' statement that Helene C. conducted negligent investigations which lead to the allegations in the Reports raises several interesting and, perhaps, as yet unresolved questions of law. It seems that anyone so inclined may hang out shingle proclaiming herself or himself "counsellor" and/or "therapist". There is no legislation governing these generic terms. Is there minimum standard of competency to which such person must adhere? What duty is owed and to whom if customer or client or patient suffers damage as result of incompetent treatment or therapy? Helen C. does not have doctorate in psychology which is requried by law for one to practice as psychologist. Nor is she member of voluntary organization, the Canadian Guidance and Counselling Association which publishes Guidelines for Ethical Behaviour, code intended to be guide to counsellors in their everyday conduct and in the resolution of ethical dilemmas. Helene C. does not subscribe to that code. Her expertise, she said (in her examination-for-discovery) comes from wide experience, intuition and an extraordinary memory. She takes no notes during an interview, nor does she make any later, as she remembers everything her hundreds of interviewees tell her and what she has observed. Her "Brief Resume" included in one ofthe Reports, shows that she has an extensive educationalbackground in the United States and then in Canada, years ofexperience but no clinical training in counselling orinterviewing children. Dr. G.R. Fothering, registered and experienced psychologist, described the standard of care expected of registered psychologist in the treatment of patients and the preparation of reports. He also gave critique of video- taped session with K. He concluded that it had many instances of intrusions, failures to listen therapeutically, leading questions and supplied frames for expected ideation all of which violate the standard for both psychological therapeutic assessment and psychological therapeutic intervention, which contaminate the therapeutic alliance. Conclusions based on any contaminated therapeutic alliance are suspect. Dr. Walt Pawlowich, the past president of the Canadian Guidance and Counselling Association, testified that psychological data must be unbiased, accurate, factual and objective. Care must be taken not to ask suggestive questions which will lead children to answers which they think are expected of them. Too numerous interviews cause stress inyoung children - 45 sessions are excessive. It is unprofessional not to keep record, preferably video record, of each interview. In his opinion, Helene C.'s methods fell below the minimum standard expected of trained family counsellor. accept the opinions of these eminent professionals that Helene C. did not conduct herself with that minimum standard. But did she owe duty of care to W.G.H. and/or R.G.H.? (To the credit of both parents, the children are not parties to this action and were not called by either side as witnesses. Perhaps that is ray of hope for better relationships in the future). The British Columbia Court of Appeal in Carnahan said (on p. 471): The state of the law regarding the nature of professional person's duty toward those who come within the range of foreseeable harm from professional misconduct is unsettled. In M.-A. (N.) which followed two years later, the same court dismissed father's action in negligence based upon unsubstantiated allegations of sexual abuse of his child, on the grounds that negligent psychologist owed duty only to the Superintendent of Child Welfare, who had requested psychological report, not to the father despite the harm done to the father's relationship with the child. The Ontario Court of Appeal in D.B. v. Children's Aid Society of Durham, found that caseworker, who was negligent in the performance of her statutory duties owed duty of care to the adult plaintiff. He was the father who had lost custody of his two daughters as the result of the unfounded allegations, in report, that he had sexually molested them. (The daughters were infant plaintiffs distinguishing factor). It was argued on appeal by the defendant Society that it owed duty of care to the children but there was no "co-extensive duty to the alleged abuser" (para. 8). The court found that The Ontario Child and Family Services Act imposed duty of care to the father which was codification of the limited duty of care the society owed to the father at common law. On appeal, the Society conceded that combination of negligence and lack of good faith would give rise to common law cause of action against it but the Court of Appeal declined to decide whether the common-law limited the duty of care to the father so as to preclude mere negligence as cause of action. Frame v. Smith (1987), 1987 CanLII 74 (SCC), 42 D.L.R. (4th) 81, is an interesting decision of the Supreme Court which was interpreted by the British Columbia court in Carnahan to say that injury to familial relationship may not constitute an actionable loss. The Supreme Court was faced with the request to extend the existing tort law to include liability for interference with family relationships. The parties to the action were the divorced mother and father of three children. The father claimed damages from his ex-wife for deliberately interfering with his access rights. The Court upheld an order to strike the claim on the basis that there was no common law right to access upon which an action could be granted. Rights to custody and access were governed by statute. On pp. 118- 119 La Forest J. for the majority stated: In sum, it is by no means certain that permitting civil actions against the custodial parents can be said to be in the best interests of the child, whether this be by creating tort or recognizing fiduciary relationship arising out of court order. Resort even to fines and imprisonment, which is permitted by the Act, has been described as not "entirely appropriate": see James G. McLeod, "Annotation" to O'Bryne v. Koresec (1986), 1986 CanLII 1315 (BC SC), R.F.L. (3d) 104 at p. 105. That is because these may encroach on the resources of the custodial parent and because the child may suffer from the knowledge that one parent has taken such drastic action against the other. This applies, and in some respects with greater force to legal action. Damages can impose far greater financial burden than the fine of up to $1,000 which may be imposed under the Act (s. 39(1)). Furthermore, though the imprisonment of one parent at the behest of the other may be damaging to the child, litigation by one against the other over protracted period may well be even more damaging. Wilson J., dissenting, said that violations of any common law right of custody or access would give rise to cause of action for breach of fiduciary duty. It follows upon the reasoning of the majority that while Helene C. is not parent to these children, (who are not parties to the action) she may have owed them fiduciary duty as their counsellor. However, she owed no corresponding duty to one of their parents for damaging family relationships. The negligence claim against Helene C. andHelene C. Counselling Inc. is dismissed. DAMAGES The plaintiffs have been successful in their libel actions against the defendants and are entitled to damages from each. They have withdrawn their claim for damages for loss of income but ask for general (or compensatory) damages, aggravated damages, punitive damages and $40,740.13 in special damages incurred, they say, in defending themselves and maintaining custody for R.G.H.. The plaintiffs rely upon the substantial awards to lawyers, recently upheld by the Supreme Court, for loss of their reputations. In both the Scientology case and Botiuk v. Toronto Free Press Publications Ltd., (1995) 126 D.L.R. (4th) 609, the Supreme Court held that lawyer's reputation for honesty and integrity is necessary for the practice of law and the whole administration of justice. The good reputations of doctors like R.G.H. and W.G.H. are as important to them, to the interests of society as whole and, in this case, to children in particular. W.G.H. gave up her practice at the University Hospital because she did not know how far the defamatory statements about her alcoholic and sexual behaviour had reached. R.G.H.'s specialized practise included many children referred to him by other doctors. Those referrals dried up when there were rumours that he had some involvement in the abuse of his own children. In deciding under which heads damages should be awarded, look again to the Scientology case. At pp. 176-79, the court discussed general damages which are presumed from the very publication of false statements and are awarded at large. jury (or judge) "should be free to make an assessment of damages which will provide the plaintiff with sum of money that clearly demonstrates to the community the vindication of the plaintiffs' reputation". But the court also suggested that it would not be inappropriate to consider the financial resources of defendants. The court affirmed that it is well-established principle that all persons who are involved in the commission of joint tort, are jointly and severally liable and it would "be inappropriate and wrong in law. to apportion liability either for general or for special damages between joint tort feasors". This comment did not apply to aggravated damages "which are assessed on the basis of the particular malice of each joint tort feasor." In the peculiar circumstances of this case, the above makes it very difficult to apply the rationale of the decision of the Frame case (referred to above in another context) in which the Supreme Court frowned upon civil awards of damage against one parent in favour of another which would act against the best interests of the children. La Forest J. said (at p. 115) that courts are given role of ensuring that issues involving custody of and access to children are determined on the basis of the best interests of the children: Damages may in some cases, deprive child the support he or she might otherwise obtain from custodial parent. So this Court should not play part in "bankrupting" K.T., joint custodial parent with liberal access. She must be able to supply the children with some comforts and all necessities while they are with her. There are no such restraints placed on damages assessed against the defendant Helene C. and Helene Christison Counselling Inc. whose Reports gave K.T. the ammunition she sought to fire her barbs, but venture to guess that her financial resources are limited. interject here: this case was decided upon its own unusual facts. It should be confined to these facts and not be used to encourage actions between hostile parents. Aggravated Damages In discussing aggravated damages the court said: (p. 183 para. 188): Aggravated damages may be awarded in circumstances where the defendant's conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robbins J.A. in Walker v. CFTO Ltd., supra, in these words at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress the humiliation, indignation, anxiety, grief, fear and the like suffered by the plaintiff as result of being defamed, the plaintiff may be entitled to what has come to be known as "aggravated damages". The long-lasting mental distress of the plaintiffswas so abundantly evident at trial that they are entitled toan award under this head. Punitive Damages According to the court, (pp. 185-6), punitive damages must serve rational purpose: In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrents? (para. 197). I do not think there is need for further deterrencenow. The lawsuit has already acted as deterrent to K.T. all allegations of abuse stopped at its inception. Helene C. and her company will have to overcome the adverse publicity and loss of income which will probably follow this judgment. There will be no award under this head. Special Damages shall not allow the special damages claimed for any of the expenses incurred in the course of the variation proceedings in the family division. Family court costs are the province of the family court. Of the other expenses claimed, the award will be sum which consider to be reasonable and fair in the circumstances. The aggravated damage award against K.T. will be little more than nominal. This does not mean that low value is placed upon the good reputation of the plaintiffs quite the opposite. It is an acknowledgment that they have suffered anxiety and humiliation from the vicious attacks upon them. It is also recognition that, whatever she might have done, K.T. is the children's mother and there must be reconciliation. Special damages 12,000.00 General damages 15,000.00 27,000.00 Aggravated damages K.T. 1,000.00 The Christison defendants 15,000.00 CONCLUSION Judgments for the plaintiffs against all defendants,jointly and severally in the amount of $27,000.00. Judgment for the plaintiffs against the defendantK.T. in the amount of $1,000.00. Judgment for theplaintiffs against the defendants Helene Christison and HeleneChristison Counselling Inc. in the amount of $15,000.00. At the request of counsel, the matter of costs will be spoken to at time arranged by the registrar. The non-publication order made at trial is lifted as against the Christison defendants. The ban is not necessary to protect the identity of the children. The order remains in place as to K.T., R.G.H. and W.G.H. and the boys.
Allegations by the former wife and a child and family counsellor that the father and his new wife had physically and sexually abused the two children were found by authorities to be baseless. The co-defendants, the mother and counsellor, protested that they were under a duty to report the disclosures of abuse. At issue was whether the publication of four reports was libellous thus causing damage to the plaintiffs' reputations, whether they conspired to libel them in order to obtain custody, and whether the counsellor was incompetent and unqualified to assess and counsel the children and negligent in the preparation of the reports. HELD: Judgment was awarded against the defendants jointly and severally in the amount of $27,000. Aggravated damages of $1,000 was awarded against the mother and $15,000 was awarded against the counsellor and her company.  1)To prove that each defendant published written defamatory statements likely to injure their reputations, three presumptions must be made: the statements were published maliciously (malice in law); the statements were false; and the plaintiffs suffered damages. 2)Every publication of a defamatory statement is a new publication. It is no defence that the mother merely distributed the counsellor's reports. 3)Counsel conceded that the allegations in three of the reports, on their face, were defamatory.  4)The mother enjoyed qualified privilege prima facie because parental duty is so compelling. Two reports containing untrue and degrading allegations were in themselves intrinsic evidence of malice. The long history of the mother's attempts to discredit the plaintiffs was extrinsic evidence of impure motive or malice. The taping of the phone calls was considered to be just another trick to try and advance her cause. 5)The counsellor's reports tendered in court enjoyed absolute privilege but that privilege was lost when she published them to various social workers, the police and the doctors. This is true whether the reports were of an ordinary or expert witness. 6)Both criteria, making a report maliciously and without reasonable grounds, must be satisfied before an action will lie pursuant to s.12 of the Child and Family Services Act. Three reports were slanderous. 7)The conspiracy claim was dismissed. 8)The counsellor had extensive educational background but no clinical training in counselling or interviewing children and 45 sessions were excessive. 9)The counsellor owed a fiduciary duty to the children as their counsellor but owed no corresponding duty to their parents. The negligence claim was dismissed. 10)The long-lasting mental distress of the plaintiffs was clear and they were entitled to aggravated damages. They were not awarded punitive damages as there was no need of further deterrence.