Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2020/03/18 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jennifer Pamela DeGiorgio, Applicant AND Nicola Graziano DeGiorgio, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Manraj Grewall, for the Applicant Alexei Durgali, for the Respondent

HEARD: February 27, 2020

Endorsement

[1] This endorsement addresses disputed issues of admissibility of evidence in advance of a temporary motion to determine whether the father should have additional overnight and holiday parenting time to the parties’ two daughters, aged 4 and 6. The evidentiary issues may be broken into these categories:

• Surreptitious recordings made by the respondent father of the applicant mother’s interaction with a child, and of exchanges of the children between parents
• Recordings made by the father of his own interactions with one or both of the children, one of which also includes a school official
• Out of court statements contained in a police occurrence report attached as an exhibit to the father’s affidavit
• File notes made by Children’s Aid social workers, attached to the father’s affidavit
• Out of court statements made by a child, a parent or a third party recorded in social workers’ notes

[2] Two additional exhibits were marked during the hearing, tendered by the mother. Exhibit 1 is notes made by a CAS social worker of a call received from the children’s doctor on February 14, 2020, and related statements made to the worker by the children, the mother and the father in relation to the same issue. Exhibit 2 is a brief letter from the physician explaining what the children said to her and why she made the report to the CAS. No objection was made to the introduction of these documents.

[3] Nor was objection taken to the introduction of out of court statements made by the mother contained in a record of the Children’s Hospital of Eastern Ontario.

General Considerations

[4] Rule 14(18) and (19) of the Family Law Rules, O.Reg. 114/99 as am., addresses affidavit evidence for use on a motion. Subrule (18) requires an affidavit for use on a motion to, as much as possible, contain only information within the personal knowledge of the deponent. Subrule (19) permits an affidavit to also contain information learned from someone else, but only if the source of the information is identified by name and the deponent states, he or she believes the information is true.

[5] The father’s affidavit does identify the source of the information in the exhibits attached to his affidavit. It does not comply with the balance of rule 14(19). Mother’s counsel did not rely on this omission. And, with respect to many of the out of court statements contained in the exhibits he does not offer them for the truth of their contents but for another purpose.

[6] Out of court statements that are offered for their truth must either fall within a traditional exception to the hearsay rule, or the proponent must establish that the twin requirements of necessity and threshold reliability are met. The principled exception was developed by the Supreme Court of Canada and permits judges to admit hearsay evidence if it meets the twin threshold requirements of necessity and reliability. This is a flexible case-by-case examination. Even if the twin requirements are met the judge may still exercise her discretion to exclude evidence where the prejudicial effect is out of proportion to its probative value.

[7] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related. She states at para 49:

The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

[8] In the Law of Evidence in Canada, third edition, Bryant, Lederman, Fuerst, the authors’ state at paragraph 6.96:

Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant’s attendance in court.

[9] To be admissible under the traditional exception, contemporaneous out of court statements about bodily state including state of mind must assert a condition or state, the assertion must be contemporaneous with the state, or made relatively soon after, may not describe the cause or reason of the state, or be used to prove an act or state of another individual, and should not be made under circumstances of suspicion. The requirements of contemporaneousness and absence of circumstances of suspicion are some guarantee of the reliability and sincerity of the declarant.

Surreptitiously Obtained Evidence

[10] In her article, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly on page 5, Professor Martha Shaffer writes that, “increasingly, courts have resolved questions about whether to admit surreptitiously obtained evidence in family law cases through the application of their ‘general exclusionary discretion’.” That discretion enables a judge to exclude otherwise admissible evidence on the basis that the probative value of the evidence is outweighed by its prejudicial effects.

[11] This type of analysis is also apparent in other family law cases, including Turk v. Turk, 2015 ONSC 216, (transcripts of surreptitiously recorded interactions not admissible on a motion based on policy reasons strongly discouraging their use in family law litigation and finding that the probative value of the evidence was not compelling); Hameed v. Hameed, 2006 ONCJ 274 (policy considerations were weighed against probative value, compelling reason for admission not shown); Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (probative value outweighed prejudice where recording said to contain threat by a parent to abduct a child).

[12] Building on Professor Rollie Thompson’s statement of three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present in relation to the admission of surreptitiously obtained evidence in family cases, since its admission “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.” In her article, Professor Shaffer elaborates that:

• the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
• surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
• admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.

[13] Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:

• large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
• infliction of emotional trauma to a parent or child; and
• potential detriment to specific relationships in the family.

[14] Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.

[15] So, for example a series of surreptitious recordings in Nalli v. Nalli, 2015 ONSC 3921 were admitted because they showed the father actively encouraging a child to reject and act out against the mother. Recordings in AF v. JW, 2013 ONSC 4272 showed the mother on various occasions engaging in significantly destructive and alienating behaviour, and, her denials to the contrary, that she was contravening a court order by continuing to undermine the relationship between father and children. These recordings demonstrated egregious, even shocking, behaviour on the part of the mother in the presence of the children. The court described what she did as “horrible emotional abuse at hands of mother.”

[16] The father also referred to Reddick v. Reddick, [1997] O.J. No. 2497 (Gen. Div.) where the court allowed in four tape-recorded telephone conversations made by the father of the mother speaking to the children. The specific content is not set out in the reported decision, and it appears that it may have been inappropriate or insensitive. Reddick is one of the earliest reported decisions on the issue. The ruling was based on the best interests of the children which is not in step with the current principled approach of the law of evidence. The recordings were tendered during the cross examination of the mother at trial. One concludes from this, although it is not addressed in the ruling, that the intended use was impeachment of the mother’s testimony. This issue is one for trial that was not before me on this motion.

(a) June 4, 2019 Recording

[17] The father admits the illegality of the recording he made of the mother interacting with the children in one of the family vehicles on June 4, 2019. He was not present in the vehicle. None of the occupants in the vehicle knew they were being recorded. He admits this is an illegal recording. The father retained a transcription service to prepare a transcript of the recording from the MP3 audio that he provided to them. The transcription service has not deposed an affidavit but “certifies” the transcript on its final page with a statement that the “forgoing is a true and accurate transcription made herein, to the best of my skill and ability”.

[18] The precise mechanism of the recording was not disclosed. It ought to have been. Neither party referred to the Evidence Act, R.S.O. 1990, c. E.23, section 34.1 which deals with admissibility of electronic records and may well be applicable. If so, the father’s affidavit does not address the applicable requirements of that section.

(b) Electronic Records

Definitions

34.1 (1) In this section,

“data” means representations, in any form, of information or concepts; (“données”)

“electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device, and includes a display, printout or other output of that data, other than a printout referred to in subsection (6); (“document électronique”)

“electronic records system” includes the computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording and storage of electronic records. (“système d’archivage électronique”) 1999, c. 12, Sched. B, s. 7 (2).

Application

(2) This section does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence. 1999, c. 12, Sched. B, s. 7 (2).

Power of court

(3) A court may have regard to evidence adduced under this section in applying any common law or statutory rule relating to the admissibility of records. 1999, c. 12, Sched. B, s. 7 (2).

Authentication

(4) The person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. 1999, c. 12, Sched. B, s. 7 (2).

Application of best evidence rule

(5) Subject to subsection (6), where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record. 2000, c. 26, Sched. A, s. 7 (1).

Same

(5.1) The integrity of an electronic record may be proved by evidence of the integrity of the electronic records system by or in which the data was recorded or stored, or by evidence that reliable encryption techniques were used to support the integrity of the electronic record. 2000, c. 26, Sched. A, s. 7 (1).

What constitutes record

(6) An electronic record in the form of a printout that has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, is the record for the purposes of the best evidence rule. 1999, c. 12, Sched. B, s. 7 (2).

Presumption of integrity

(7) In the absence of evidence to the contrary, the integrity of the electronic records system by or in which an electronic record is recorded or stored is proved for the purposes of subsection (5),

(a) by evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record, and there are no other reasonable grounds to doubt the integrity of the electronic records system;

(b) if it is established that the electronic record was recorded or stored by a party to the proceeding who is adverse in interest to the party seeking to introduce it; or

(c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceeding and who did not record or store it under the control of the party seeking to introduce the record. 1999, c. 12, Sched. B, s. 7 (2).

Standards

(8) For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. 1999, c. 12, Sched. B, s. 7 (2).

Proof by affidavit

(9) The matters referred to in subsections (6), (7) and (8) may be established by an affidavit given to the best of the deponent’s knowledge and belief. 1999, c. 12, Sched. B, s. 7 (2).

Cross-examination

(10) A deponent of an affidavit referred to in subsection (9) that has been introduced in evidence may be cross-examined as of right by a party to the proceeding who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced. 1999, c. 12, Sched. B, s. 7 (2).

Same

(11) Any party to the proceeding may, with leave of the court, cross-examine a person referred to in clause (7) (c). 1999, c. 12, Sched. B, s. 7 (2).

[19] The father submits that the mother has not denied the accuracy of the recording or that it is the entire conversation that transpired at that time. In my view the absence of denial would be an insufficient basis to meet the admittedly low threshold of the provisions of section 34.1 of the Evidence Act.

[20] In addition to the systemic prejudice inherent in an illegally obtained recording the mother describes her belief that the father had been making recordings of her with the children in one or both of the parties’ vehicles. She provides reasons, such as the father knowing innocuous information, she had discussed with the children without him ever having been told. The father does not address this allegation; he is silent as to whether there are other such audio recordings that he has not produced. She also deposes that after she found out about this particular recording, she took steps to have the other car examined. No recording device was found but nonetheless she ultimately sold and replaced the vehicle to ensure her privacy.

[21] The audio recording is tendered not for the truth of what was said, but to show the mother was upset with one child because she liked her father. The recording does not show this. It shows that the mother is upset with the child because she perceives the child’s behaviour as frustrating when she is with her mother and nicer when she is with her father.

[22] The father submits the recording shows the mother was engaging in alienating behaviour. I disagree. Essentially the mother is complaining that the children are better behaved with their father than they are with her. She is asking them to behave with her as they do with him.

[23] The mother does complain that she does everything for the children whereas their father gets to wake up at seven o’clock in the morning, have his coffee and leaves for work on time. She is complaining about her role compared to his. She is also heard to encourage the children not to tell their father things that make him think they don’t like her, because then he tells other people that they don’t like her or are scared of her. She ought not to have discussed the parental roles and responsibilities with the children. She should not tell them what to say or not say about herself to their father. These statements do not, however, show alienating behaviour. They do show the mother berating the one child and exposing both of the children to adult conflict.

[24] The father also submits the recording to show the commission of physical child abuse by the mother. During the recording one child is shown as saying “ow ow” several times. The mother has admitted in one of the CAS records that this was because she squeezed the child’s knee at this time.

[25] In addition to that admission two reporting letters are in evidence from the CAS to the parents dated July 30 and October 31, 2019, stating that the Society has confirmed a risk of physical harm by both parents, use of physical discipline, and a risk of emotional harm due to both of them exposing the children to parental conflict. These letters and the mother’s admission lessen the need for the court to admit the surreptitious recording.

[26] I do not find the contents of this recording particularly probative to the purposes tendered. I conclude that the prejudicial effects outweigh the probative value and the recording shall not be admitted into evidence on the motion.

[27] The reliability of the recording may also be open to question. On the morning in question the father knew he was going to record the mother taking the children to school. The mother describes quite a trying morning in which she implies the father slept later and left earlier than her, without helping with the children. He also took the car that one of the children preferred to travel in, no doubt so that the mother had to take the bugged vehicle. Although not part of my ruling and difficult to determine on a motion, the mother’s inappropriate remarks may have been, at least to some extent, the product of manipulation.

(c) Father’s recordings of his own interactions with the children

[28] The father tenders two transcripts of himself in interaction with the children. He made these recordings on October 6 and 8, 2019.

[29] The first recording takes place in his house near the beginning of a visit. The father notices the younger child has soiled herself. He asks her why she hadn’t told her mother. The child replies “she always gets angry when I tell her”. The father asks her again why she didn’t tell her mother, and this time the child said, “I was too scared, and she always gets angry”. The father then asked what your mother gets angry about. The child answered, “Well I didn’t tell her.”

[30] The father tenders this recording to show the child’s state of mind, namely that she was fearful of her mother’s anger if she were to tell her she had soiled herself.

[31] The recording continues as the father takes the child upstairs to clean up. As he is cleaning her, he annotates what he is doing and how it appears to him. He asks what’s going on? The child says, “I got too scared when I didn’t want to tell mom”. He asks her again, why don’t you want to tell mom? The child says, “I didn’t want her to get angry.”

[32] The references to her mother getting angry are not admissible as part of the state of mind exception. They refer to the mother not the child. They are a past narrative. The words, “I was scared” are not contemporaneous but are relatively close in time. The father’s repeated questioning of the child is some evidence of suspicious circumstances. The fact that the father continued to record and annotate while he was cleaning his daughter also suggests he may have had some purpose in mind other than simply attending to her needs. I make no findings in this regard having regard to the difficulties in doing so on a written record. That said, the embarrassment to the child and the potential damage to the father-daughter relationship were she to know that he was recording the episode for potential use in court is case specific prejudice.

[33] The second recording was made while the father was picking up the children from school. The first portion is a conversation between him and a “Female”. Only the father knows the recording is being made. The female is not identified by name or role. She and the father are discussing her practice of putting two copies of documents in the school bag, one for him and one for the mother, in the context of something the father appears not to have received. The father suggests it had been removed, to which the female person says, “I don’t wanna get involved....”

[34] The conversation continues until the father calls the younger child over to join them. He says that she has accidents in her pants and that he can smell it now. The female explains that if the child lets her teacher know they will call the parent whose day it is to come and clean her. The father then takes the child to the bathroom and cleans her bottom as he continues to make the recording. He asks what happened. She says, “I got a little bit scared today and then I pooped”. He asks then why you didn’t tell your teacher. She says, “I didn’t want to call mom”. He asks why not, and the child says, “Cause she might get angry.” The father then says, she can ask them to call him instead. He continues the recording while he provides descriptive commentary on the process as he completes the clean up.

[35] These statements made by the child are offered to show her state of mind, namely fearful of her mother’s anger if the school called her to report she had soiled herself. Again, while somewhat after the fact the statement that she did not want to call mom may be admissible for her state of mind. The balance of why she did not want to call her mother or how her mother might react is not admissible under this exception.

[36] The admissible statements from each recording have low probative value to the specific issues in the motion, which relate to the father’s request for expanded overnight and holiday access. There is systemic prejudice in that the recordings are surreptitious as far as the child and the unidentified female at the school are concerned. The same embarrassment to the child and the potential damage to the father-daughter relationship were she to know that he was recording the episode for potential use in court is case specific prejudice.

[37] Having regard to the low probative value of the admissible state of mind portions of the recordings weighed against the prejudicial effects of admitting the surreptitious recordings lead me to exercise my discretion to exclude the evidence from the motion record.

(d) Father’s recordings of transitions of children between the parents

[38] The father tenders 13 recordings made by himself of occasions when the children were exchanged between parents. These recordings include himself, both children and the mother. No one other than the father knew they were being recorded.

[39] He offers these to show the children’s state of mind at drop-offs. He points to numerous examples where one child in particular is upset, crying and saying that she does not want to leave her father. The father also includes recordings of transitions, on September 22 and September 24, 2019 where he says he was able to redirect the children away from the stress of the transition and they went fine. He also deposes that there are now fewer issues with transitions which he attributes to the children seeing him more often.

[40] I have concluded not to admit any of these recordings into evidence. The systemic prejudice is obvious.

[41] All of the recordings have significant problems with reliability. I will provide some examples. The two transitions that went well took place over 3 to 4 minutes. In one of them the father says to the children, “All right guys, let’s do this”. The other transitions are protracted, extending for as long as 17 minutes. During these extended periods the father does not encourage the children to go with their mother, say goodbye, and leave. At various times, as examples, he tells them to be strong, not to panic, that he will miss them too, he is a phone call away, we can do whatever you want at the next visit. He says goodbye but doesn’t leave. He prolongs his departure with repeated hugs, and high fives. Even if not intentionally manipulative, these type of statements and protracted goodbyes are not likely to make the transition easy for the children.

[42] On two occasions he annotates how the transition went before ending the recording. This does create the appearance of an intention to collect evidence.

[43] The recordings do not show the actual time of day when they were made. They start at 00.00 and proceed from there. This omission could impact the reliability of a recording. For example, on August 8 the children look immediately for their mother’s vehicle on arrival at the transition point. She is not there. The father says she is a little bit late. One of the children says she thinks they were early. The mother arrives at about 8 minutes into the recording. It is not possible from the recording to know if he arrived early, or if she was late, or if he was early whether it was contrived.

[44] The October 10, 2019 recording starts in the father’s driveway. One child has brought a toy with her. The father asks for it. The child resists. The discussion continues between them, back and forth, in which the child maintains its her toy, her mom gave it to her, she doesn’t want to leave it at her father’s house, and eventually the child is crying. She continues crying and they continue the discussion until, the child says, “I don’t want to leave”; and “I don’t like leaving”. They are still in the driveway. Two points arise. The refusal to bring the toy may impact the subsequent transition. The upset at the transition may be related to not liking going back and forth, as opposed to preferring one parent over the other.

[45] These considerations combined lead me to conclude that the recordings have sufficient issues with respect to their reliability to admit them to show that the children did not want to leave him on these occasions and that they were very upset to leave him.

[46] Further, there is other admissible evidence in the motion record which will enable me to conclude that transitioning between the parents has been difficult for the children. I am not prepared to exercise my discretion to receive these surreptitious recordings for the probative value they have on that issue.

[47] Before leaving this section, I note that the father’s motion was originally scheduled to be heard on November 21, 2019. It proceeded in part on that day. Insufficient time had been scheduled for the motion. Problems were noted with the method of proof of the surreptitious recordings and the mother’s objections to them. A new date was obtained which was entirely occupied by submissions on these evidentiary issues. The substantive motion is now scheduled for April 2. These dates illustrate the way in which illegal and surreptitiously obtained material can prolong a case and increase the costs of litigation to the litigants.

Business Records

[48] The father tenders an Ottawa Police Occurrence report and file notes made by social workers employed by the Ottawa Children’s Aid Society. All of these documents are attached as exhibits to his own affidavit.

[49] Section 35 of the Evidence Act addresses the admissibility of business records:

35 (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)

“record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35(1).

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35(2).

Notice and production

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same. R.S.O. 1990, c. E.23, s. 35(3).

Surrounding circumstances

(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. R.S.O. 1990, c. E.23, s. 35(4).

Previous rules as to admissibility and privileged documents not affected

(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. R.S.O. 1990, c. E.23, s. 35(5).

[50] Setak Computer Services Corp. v. Burroughs Business Machines Ltd., 15 O.R. (2d) 750 (HC) remains the foundational case in Ontario with respect to the fundamentals of the admissibility of business records. Note that Setak does not admit evidence otherwise inadmissible simply because it is in a business record. For example, expert opinions contained in a business record are not admissible as part of the business record. Nor is recorded hearsay from third parties who are not under a business duty to report the information.

[51] The court in Setak stated the following at pages 761, 762 and 763:

In this case, I have no hesitation in holding that the minutes are admissible under s. 36, as prima facie proof of what actually transpired at the meetings, including the following:

1. That the meetings were held on the dates shown, with the persons described as being present actually present.
2. That the reports described as having been made in the minutes were in fact made at the meeting.
3. That where indicated, one of the persons attending did, in fact, undertake to follow a certain course of action.
4. That where indicated, an agreement was reached or formalized between the parties on any point or issue.

A writing or record made in the regular course of business consists in its simplest form of a record by the maker on the basis of his own personal observations and knowledge, and there can be no objection to the minutes being offered for statements attributable or events that they say happened at the time or within a reasonable time of the meeting.

… the minutes may not be received to prove the validity of any opinion expressed at a meeting. I say that, regardless of who offered the opinion….unless given by a duly qualified expert.

… The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36 as admitting hearsay evidence of any third party would make the section as almost limitless dragnet for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy. In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.

(e) Ottawa Police Occurrence Report

[52] The OPS record is admitted to prove the fact that the mother attended at the police station on April 25, 2019, and to prove the acts, transactions, occurrences or events recorded in the notes during the officer’s interaction with her. The mother’s statement to the police about the argument she and the father had the day before is admissible to establish that she made the statement. The record is also admissible to establish that the mother played a recording of the argument for the officer.

[53] The father also wants the officer’s description of the content of the recording and of the tenor of the male voice he heard on the recording to be admitted, to prove the contents and the officer’s impression of the tenor of the male voice in the recording. The recording is not in evidence. I do not know whether it is or is not available. The officer has not deposed an affidavit that would permit him to be cross examined.

[54] This portion of the occurrence report is not admitted. The statements made in the recording referred to by the officer were not made by a declarant acting in the usual or ordinary course of business. They are not admissible under the principled exception because the father has not satisfied the requirement of necessity in respect to the contents of the recording. Nor is the officer’s impression that the male voice was not threatening or in high tone admissible. It falls into the category of opinion based on inadmissible second hearsay.

(f) CAS Social Work Notes

[55] The recorded notes of the CAS social workers are admissible for the acts, transactions, occurrences and events recorded based on the personal knowledge and observations of the social worker. Statements by a parent to a worker are admissible for their truth if they fall within the statement against interest or admission traditional exception. If not, such statements are only admissible for the fact that the statement was made, if that is a relevant fact, but not as to the truth of the contents. No statements by a parent were tendered for their truth under the principled exception.

[56] Both counsel agree that statements made by the children to the social workers may be admitted for their truth and or state of mind of the child.

[57] There is one issue arising from the social work notes. The worker includes notes of what was said to her by a child’s daycare manager on June 10, 2019.

[58] The note sets out:

• what the daycare manager told the social worker that teachers had said;
• what the mother told the daycare manager that one of the children had told the mother that the child said she had said to one of her teachers;
• an unflattering word the mother would call the father in front of the children before separation, without identifying whether she heard the mother state this herself or had been told by someone else.

[59] These are not admissible in any event as they are not the personal acts or observations of the daycare manager. Two other statements were offered:

• a very brief summary of the daycare manager’s own observations of the children when dropped off by each parent;
• a statement made to her by the mother, that she wanted sole custody.

[60] These statements would be admissible had the father established that they were made by the manager acting in the normal, routine course of business in communicating them to the CAS. There was no evidence in this regard. Nor does it appear that the communication was made under the manager’s duty to report under section 125 of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.

[61] For these reasons the portion of the CAS note containing statements made by the daycare manager to the social worker are ruled inadmissible.

Direction to Counsel

[62] The motion on the substantive issues has been scheduled to be heard on April 2, commencing at ten o’clock in the morning. Counsel will be aware of the suspension of regular sittings of the Superior Court as a response to COVID-19. Arrangements may be made for urgent matters to proceed, with a preferred view to conducting hearings in writing, by conference call or video connection. There is an issue in this case that may fall into the urgent category in relation to Exhibits 1 and 2 entered on February 27. Counsel should discuss whether and how they wish to proceed on April 2. After they have done so I invite them to communicate to me by joint letter to the SCJ Assistants email address SCJ.Assistants@ontario.ca.

J. Mackinnon J. Date: March 18, 2020