Should a man convicted of sexually exploiting a very young child have custody or access to his teenage son? Is it in the son’s best interest to see his father or to be protected from him? Is there a balance that can be achieved?
These were some of the questions that Justice Cheryl Robertson of the Ontario Court of Justice’s Family Court Branch had to wrestle with in the judgment in Tuttle v. Tuttle released last week.
The father, Keith Tuttle, had pled guilty to sexual exploitation and creating child pornography in 2012. His crimes included sexually abusing a four-year-old foster child, who was in the care of a relative, and possessing 36,000 pornographic images of children.
After he was released from prison, Tuttle pursued custody of his 12-year-old son, who was in the care of the mother.
Robertson ultimately ordered that sole custody be given to the mother, but allowed the father limited supervised access to his son.
“The supervision order is not a punishment but is the safe course for the child to pursue a healthy relationship with his father,” she wrote. “When the father can prove he has permanently changed his thought process, it could be a material change in circumstance.”
Robertson’s ruling, composed of short, declarative sentences, is filled with similar moments of empathy for Tuttle, which sit beside condemnations of his criminal behaviour and the deceitful actions he’s taken since his release.
“He presents as a soft-spoken, polite, sincere individual anxious to move forward with his relationship with his son. He is likeable. His positive demeanour and task sharing history is offset by his secret truth when considering trustworthiness. Despite these positive attributes, he was also a man who was disrespectful, inappropriate, sneaky, deceptive, and unable to maintain self-control at the expense of his child.”
At one point, Robertson acknowledged Tuttle is trying to change through therapy and relapse prevention programs, but that may never be enough.
“He is working on changing his behavior and thought pattern but his own expert evidence confirms he faces a long term struggle. Not all things can be fixed,” she wrote.
Despite the singular circumstances of the case, Robertson focused on the same issues that are the mainstay of any custody ruling — the best interests of the child.
“I find that the father can choose to be a vital part of his son’s best interests if he commits to it,” she wrote. “He must step into the child’s world and cannot expect his child to step back into his isolation.”
Robertson acknowledged that finding ways for father and son to spend time together with a supervisor present and away from other children would be difficult. But she goes as far as to suggest, in great detail, five specific ways Tuttle and his son would be able to spend productive time together.
These included starting a book club facilitated by a volunteer, starting a small, supervised lawn-cutting or snow-shoveling business with his son and a retired professional or enlisting the help of a graduate student to develop a plan for the two of them, which could form part of the student’s thesis project.
But Robertson worried that what she saw as Tuttle’s failure to come to terms with the effect his actions have had on the people around him would kill any potential future relationship.
“While his crimes were offensive, I am more concerned with his lack of follow through to deal with his other problems,” she wrote. “He cannot change his history but he can go forward with a realistic team approach to raising their child. It is up to him.”
Joan Rothwell, a lawyer with Legal Aid Ontario, says cases like these present a number of problems for the family law system.
“You feel bad for judges in those kind of circumstances because they have to protect the child at all costs,” she says. “But fortunately these cases are fairly rare.”
Rothwell recalls one case where a person convicted of child pornography was given supervised access to his child. The supervised access program however was run out of a community centre where other children were, so the man wasn’t able to go there.
According to Rothwell, it’s rare for a judge to give a long-term supervised access order, as Robertson did. But even in cases involving child pornography, judges will generally provide some form of supervised access versus cutting off all contact.
“The goal is to maintain the relationship in some way, because kids are curious about a parent if they never see them again,” she says.
Update 4:20 pm: comments from Joan Rothwell