“In cases where sexual abuse has been alleged but not confirmed, the court must first consider whether it is satisfied on the balance of probabilities that it occurred. But even where the evidence does not support a finding of sexual abuse on a balance of probabilities, the court must go further and consider, on the basis of the whole of the evidence, whether there is a risk of harm to the child if access is given without protection against that risk. A risk must be more than speculative or simple conjecture (C.B. v. W.B., 2011 ONSC 3027, at paras. 125-137). In this regard, I adopt the conclusion set out by Justice Ricchetti in C.B. v. W.B., supra, at para. 139:
In conclusion, the court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child. It requires the Court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The Court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The Court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The Court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.”