Elena Kurgatnikov Miller

In a child protection trial under the Child, Youth and Family Services Act, 2017, the court found the child in need of protection on the basis of a risk of emotional harm.

The evidence did not support a finding of physical harm risk or actual emotional harm as statutorily defined, but did establish a future risk arising from the mother's cumulative absences during a mental health crisis and from the kith caregivers' conduct in fostering estrangement from the child's parents, extended family, language, and culture.

The court was highly critical of the child protection agency's investigation, disclosure, litigation positions, and compliance with statutory and regulatory duties.

Rather than granting deemed custody to the kith caregivers, the court ordered three months of interim society care with immediate reunification-focused therapeutic, cultural, and assessment steps, and structured access orders for the child's family.

In a child protection trial, the court conducted a voir dire to determine whether hearsay evidence from an OCL clinician concerning the child’s views and wishes should be admitted.

The clinician was also a full-time employee of the applicant society, had not disclosed that employment in prior affidavits, and no ethical wall or access restrictions had been implemented.

Applying the principled hearsay framework, the court held the proposed evidence failed threshold reliability because the conflicting institutional roles and surrounding circumstances created unacceptable risks of influence, inaccuracy, and loss of independence.

The court also found the evidence was not necessary because other, more reliable sources of the child’s views and wishes were available.

The evidence was excluded and costs were reserved.