WARNING PUBLICATION BAN The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule I to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act.

These subsections prohibiting publication and identification and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87(7) Order excluding media representatives or prohibiting publication.- Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re identifying child.- No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87(9) Prohibition re identifying person charged.- The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part 1.

142.(3) Offences re publication.- A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: FS-210001-00 DATE: 2022 03 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

P.D. Self-represented Appellant

• and -

THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL Gia Williams, for the Respondent Children’s Aid Society of the Region of Peel Respondent

K.D. Respondent Lorne Levine, for the Respondent K.D.

Molly C. Leonard, for the Office of the Children’s Lawyer, on behalf of the minor

HEARD in writing

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Appellant Mother has appealed the final Order of Justice Clay of the Ontario Court of Justice, dated November 26, 2020. This appeal was originally scheduled for a two-day hearing. For the reasons set out in my endorsement of November 8, 2021, the Mother refused to enter the courtroom and this appeal proceeded in writing.

[2] In considering this appeal, I have reviewed the Appeal Books and the facta filed by all four parties in this appeal. In addition, when I ordered that the appeal proceed in writing, I provided the Mother a further opportunity to provide a reply factum. No such factum was received. Instead, the Mother filed a document entitled “Notice of Default Certified Judgment of Un-Rebutted Affidavits,” dated November 15, 2021. It was not a factum, but rather a written statement about her denial of access to the appeal, and further allegations of misconduct by the Father, the police, and others, which was accepted by the court for filing.

I. Background

[3] This appeal arises from a child protection application commenced by the Children’s Aid Society of the Region of Peel (“the Society”). Over the course of its involvement with this family, the Society amended its Application three times. As of the date of the trial, the Society only had concerns with respect to the emotional harm to the child as a result of the Mother’s actions.

[4] The Application was tried before Justice Clay, which took 16 days, spread over 3 months. On November 26, 2020, His Honour found that the child was in need of protection and made an order that the child be placed in the custody of the Father pursuant to s.102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, with supervised contact by the Mother.

[5] The Mother has appealed that decision.

II. Grounds of Appeal

[6] The Mother argues the following grounds of appeal:

a) The Mother was denied procedural fairness and natural justice as a result of the following:

(i) The trial judge inappropriately intervened in a manner which undermined trial fairness and the appearance of fairness;

(ii) The trial judge failed to intervene to prevent counsel from assisting witnesses during cross-examination and providing evidence from counsel table;

(iii) The trial judge failed to consistently and correctly apply the rules relating to the conduct of the trial;

(iv) The trial judge conducted an unfair voir dire with respect to the admissibility of children's statements.

b) The trial judge erred in law by failing to examine and make a ruling on each child's hearsay statement individually as required by established caselaw;

c) The trial judge erred in law by permitting Dr. Wittenberg to testify beyond his expertise; and

d) The trial judge erred in fact and law by making an access order that is in the discretion of the [Father].

[7] If successful, the Mother seeks an order that she have sole custody of the child, that the child reside primarily with her, and that parenting time with the Father would be at her sole discretion. She also seeks an order that the Father be prohibited from speaking to third party service providers, that the Mother alone can obtain a passport for the child, that the Father be prohibited from exercising his parenting time outside of the regional municipality, and a police enforcement clause. In the alternative, she seeks a new trial.

III. Standard of Review

A. Denial of Natural Justice and Procedural Fairness

[8] No assessment of the standard of review is necessary when the requirements of natural justice and procedural fairness are at issue: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 75; Forestall v Toronto Police Services Board (2007), 228 O.A.C. 202 (Div. Crt.), at para. 38.

[9] When considering an allegation of a denial of natural justice, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly: London (City of) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.), at para 10; Newcastle Salvage Inc. v. 2270739 Ontario. Ltd., 2019 ONSC 2810 (Div. Crt.), at para. 52.

[10] While this approach is usually adopted in an application for judicial review, it is also appropriate when reviewing a decision of a lower court. As stated by the Court of Appeal for Ontario, in Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at para. 21:

… it is precisely because the Eastern Administrative Judge was exercising his judicial functions that he owed the appellant an elevated duty of procedural fairness and natural justice. Of the many principles underlying the Canadian judicial system, generally those who will be subject to an order of the court are to be given notice of the legal proceeding and afforded the opportunity to adduce evidence and make submissions (emphasis mine).

[11] In Fontaine, the Court of Appeal for Ontario relied on A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, which indicated at para. 27 that the rules of natural justice or of procedural fairness are most often discussed in the context of judicial review of the decisions of administrative bodies. Nonetheless, it is pointed out that these concepts were originally developed in the criminal law context. I see no reason why they should not be applied in the civil or family law context as well.

B. Standard of Review

[12] With respect to the remaining grounds of appeal, an appeal is not an opportunity to reargue a motion or trial. The decision of the original trier of fact remains unless the appellant can show that an error of law, or fact, or mixed law-and-fact was committed.

[13] When considering potential errors of law, the standard of review is one of the correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 8.

[14] When considering potential errors of fact, an appeal will not be granted unless it can be established that the trial judge made a palpable and overriding error. Absent such a finding, deference is given to the trier of fact who was able to observe witnesses and hear the evidence first-hand: Housen, at para. 10.

[15] A palpable and overriding error is where a finding of fact is clearly wrong, unreasonable, or unsupported by the evidence and the error affected the result of the motion or trial. This applies whether there is direct proof of the fact in issue, or indirect proof of facts from which the fact in issue has been inferred: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56.

[16] Matters of mixed fact and law lie along a spectrum. If there is an extricable legal principle, then that legal question will be reviewed on a correctness basis. Otherwise, if there is no extricable legal error, the standard of palpable and overriding error applies: Housen, at para. 36.

[17] An appeal court must not retry a custody case. The appeal of a custody order must be approached with considerable respect for the task facing the trial judge in difficult family law cases, especially those involving custody and access issues: N.S. v. R.M., 2019 ONCA 685, at para. 4.

[18] As stated in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para 13:

Custody and access decisions are inherently exercises in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

IV. Issues

[19] On this appeal, the following issues must be determined:

a) Was the Mother denied procedural fairness and natural justice?

b) Did the judge err in law by failing to consider each of the child’s hearsay statements individually?

c) Did the judge err in law by allowing Dr. Wittenberg to testify beyond his expertise?

d) Did the judge err in fact and law by making an access order that is at the sole discretion of the Father?

A. Procedural Fairness and Natural Justice

[20] Natural justice has frequently been viewed to include, but is not limited to, the necessity that a defendant be given adequate notice of the claim made against him or her and that he or she be granted an opportunity to defend against that claim. Generally, it relates to procedure and due process and does not relate to the merits of the case: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 64-65.

[21] A fair process is one that reasonably guarantees basic procedural safeguards, such as judicial independence and fair ethical rules governing the participants in the judicial system: Beals, at para. 62.

[22] The principle of natural justice is a flexible concept, the basis of which is notice and an opportunity to be heard: Lloyd’s v. Meinzer (2001), 55 O.R. (3d) 688 (C.A.), at para.21.

[23] Natural justice and procedural fairness are overarching principles, concerned with the overall procedure, and not the minutia of its implementation. For example, if a party knows of the type of damages claimed, but not the exact amount, this is not a denial of natural justice. If a party is aware that certain relief is being sought, but not given the name of the witness who will prove the entitlement to that relief, this is not a denial of natural justice: Beals, at para. 66-67.

[24] The court must ensure that the rules of procedural fairness were adhered to, given the circumstances, and that the appropriate procedures and safeguards required to comply with the principles of natural justice in the particular circumstances of the case were followed: Newcastle Salvage Inc. v. 2270739 Ont. Ltd., 2019 ONSC 2810 (Div. Crt.), at par. 68; London (City of) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.), at para. 10.

[25] Each of the Mother’s allegations with respect to this ground of appeal will be examined separately.

i. Trial Judge Interference

[26] Appellant courts are reluctant to interfere with a judgment on the ground that the judge improperly interfered during the course of the trial. A strong presumption exists that a trial judge has not intervened unduly in a trial: R. v. Murray, 2017 ONCA 393, at para. 95.

[27] If undue intervention is advanced as a ground of appeal, the fundamental question is whether the comments and interventions would create an appearance of an unfair trial to a reasonable person present throughout the trial proceedings: R. v. Murray, 2017 ONCA 393, at para. 97.

[28] Judicial interventions should not be judged in isolation but in the broader context of the entire trial. The record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences: R v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 32; R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 72.

[29] As explained by the Court of Appeal in Hamilton:

[47] An examination of whether a trial judge has unduly intervened in a trial begins with the recognition that there are many proper reasons why a trial judge may intervene through comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings.

[48] A trial judge may properly intervene to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters, and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

[49] At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted. In a case of this complexity and size, a good deal of deference is owed to an experienced trial judge who lived those dynamics for many months; dynamics that must have impacted on his decision to intervene from time to time. A microscopic analysis of interventions by a trial judge in large cases such as this should be avoided.

[30] These principles are equally applicable to a child protection trial.

[31] I have reviewed the transcript of the trial. I have reviewed those parts, in particular, that the Mother highlights as examples of improper trial judge interference. I have concluded that the interjections of the trial judge, viewed within the entirety of the hearing, would not lead a reasonable person to conclude that the trial was not fair. This was a difficult trial, high conflict, with intractable positions. Case management and trial management was required prior to the trial, and trial management was required throughout. At times, the trial judge’s intervention assisted the Appellant. He would explain rules of evidence, the role of cross-examination versus argument, and recap the evidence heard to date. The Mother was self-represented, and at times needed to be reminded of what was already covered, what was relevant and what was important for the trial judge.

[32] The Mother appears particularly concerned by questions of the trial judge that she believes shows skepticism of her position. I disagree with this characterization. The trial judge must be satisfied that he or she understands the evidence, and it is not improper to ask questions, and give the parties an opportunity to clarify the evidence or their position. Also, it must be remembered that this is a judge alone trial. The judge will assess the evidence as it is presented, but is able, in the end, to re-examine the evidence as a whole, disregard what is not relevant, and then decide the case upon the proper evidence before him or her. There is nothing in the trial judge’s comments or his decision that show he has not done this.

ii. Evidence from Counsel and Improper Assistance by Counsel

[33] A lawyer cannot be both an advocate and a witness in the same case. If an advocate wishes to give evidence about material and contested facts, the advocate must take off his or her gown and testify under oath. Otherwise, the advocate’s statements are shielded from cross-examination and the court has to make findings of credibility of untested evidence: R. v. Leduc, 66 O.R. (3d) 1 (C.A.), at para. 132.

[34] Careful attention though, must be paid to determine if submissions from counsel are just that – submissions or objections – or an attempt to give evidence. This determination can only be made in the context in which it occurred. In the end, it is ultimately up to the trial judge to consider only proper evidence and disregard that evidence that is not presented through affidavits, witness testimony, or exhibits.

[35] The Mother has alleged over forty specific incidents when evidence came from counsel and indicated that it was not an exhaustive list. Reading these specific examples in the context of when they occurred, I am satisfied that the Mother’s right to procedural fairness was not violated and that submissions or objections by counsel from the counsel table were not accepted as proper evidence to be considered.

[36] An examination of the transcript shows that the trial judge was attuned to fact that counsel could not provide evidence. Granted, counsel did interrupt the Mother’s cross-examination or her evidence in chief, but if it was inappropriate, the trial judge would say so. On occasions, he would highlight that what the counsel was saying was not evidence before the court. On another occasion, where counsel ascribed knowledge to a witness, the trial judge would indicate where that particular witness would have no knowledge. The trial judge acknowledged when the evidence adduced by the Mother was hearsay, or double hearsay. When advised of other documents or events in the history of this file by counsel, the trial judge would indicate that he could not consider it, or that it was not before the court in this matter. When objections by counsel were raised, they were generally because the premise put to the witness by the Mother was improper, or to highlight that other evidence or exhibits show that the premise was incorrect. Sometimes the trial judge did not accept the objections and the Mother was permitted to carry on. At times, the trial judge indicated to the objecting party, it was a matter properly for submissions.

[37] This, and the judgment itself, shows that the trial judge was aware of what was proper evidence and only considered the proper evidence when making his decision. While some of the interjections by counsel may have been more properly accomplished by way of re-direct questioning, or in summation, I am satisfied that the trial judge only considered proper evidence in coming to his decision and did not rely on any evidence that was not properly before the court. There was no denial of natural justice or procedural fairness to the Mother.

iii. Inconsistent Application of Procedural Rules

[38] The Mother points to several instances when the procedural rules were not applied equally to all parties and to her detriment. In particular, she points to the requirement on her alone, to produce transcripts of any statements on which she intends to rely. She argues that she was not permitted to fully present her case and she was unnecessarily interrupted in her cross-examinations.

[39] I have already addressed the interruptions by counsel in her cross-examination and find that she was afforded procedural fairness. With respect to the video statements, the trial management endorsement set out the procedure to be used if video or audio evidence was to be presented by the Mother. The applicable provisions are as follows:

1 0- [The Mother] wishes to enter through 4 witnesses and recordings her daughter's out of court statements. She has not set these out in a chart. My direction to Ms. Deal on this issue is set out below in the Order for this TMC.

Order:

The following are the orders that the parties are to abide by regarding this trial:

10- The Mother's witnesses are attached as schedule D. The affidavits for her witnesses shall be served on all parties and originals filed with the court by April 3, 2020. The CV for Dr. Lin and Ms. Pagan shall be served on all parties by April 3, 2020.

11- The Mother's witnesses' affidavits must contain any/all child out of court statements she wishes the court to consider in the trial.

14- Document Briefs:

a. Joint Document Brief_-- If all parties have agreed to certain documents being presented to the court jointly for consideration to be entered as evidence a - Joint Document Brief should be prepared by the PCAS and served on all by April 17, 2020. This should have an index and tabs for each document as well as being sequentially paginated. Two working copies to be available for the trial date, 1 for the witness, I for the judge. A party wishing to enter a document will need to have enough loose copies to hand up to be marked as an exhibit when it is properly entered and accepted by the Judge.

b. Separate Party Document Brief - if a party wishes to rely on a document it is to be placed into a document brief with the title of the document brief belonging to that party, it shall have an index and each document tabbed as well as sequentially paginated . [The Mother] shall have placed in this document brief any transcriptions of the recordings with a sworn certificate for each transcription that she wishes to potentially have entered as exhibit and evidence . (emphasis mine)

15. Voir Dire

a. A voir dire will be required at the start of the trial.

b. any evidence that is admitted by the Judge at the voir dire will be accepted in the main trial and not be repeated or crossed examined on once again.

c. The voir dire will concentrate on: [the child’s] out of court statements.

The PCAS has eight statements to be presented in a chart at trial and via witnesses

The OCL – to be presented in a chart at trial and a witnesses

[The Mother] – to be presented via witnesses and all child’s statements must to be set out in these witness’ affidavit see Schedule D attached and or in the transcript of the recordings.

d. [The Mother] wishes to enter transcripts of recordings regarding the other issues she believes important in this trial.

16. GIVEN THE ABOVE, THE PARTIES MUST ASSURE THAT ANY WITNESS THAT IS TO GIVE EVIDENCE RE THE ABOVE OUT OF COURT STATEMENTS MUST BE AVAILABLE AT THE START OF THE TRIAL FOR THE VOIR DIRE TO TESTIFY RE THOSE STATEMENTS. THIS WILL REQUIRE THE PARTIES TO COOPOERATE AND ORGANIZE THIS PORTION OF THE TRIAL BETWEEN THEM IN ADVANCE AND WITH THEIR WITNESSES. DEPENDING OF WHAT OTHER TESTIMONEY THESE WITNESSES ARE BEING CALLED FOR, THAT WITNESS WILL ALSO NEED TO REATTEND TO PROVIDE ANY FURTHER TESTIMONY WHEN EACH PARTY PRESENTS THEIR CASE.

[40] The trial management judge did not require that any parties have their recordings transcribed other than the Mother.

[41] I do not find that this was procedurally unfair to the Mother. The reason for this unusual requirement is found in the history of the litigation. On November 26, 2019, the Society had become so concerned with risk of emotional harm to the child that it succeeded in obtaining a temporary order that the child would henceforth live with the Father, and that the Mother would have access supervised by the Society at its sole discretion.

[42] Unfortunately, the Mother indicated that she would not attend for these access visits until unless she could record them. The OCL became concerned that there was no contact between the Mother and the child for approximately two weeks but was also concerned about the Mother’s ability to manipulate any recordings. Accordingly, on December 11, 2019, an order was made that permitted the Mother to audio record all access visits, with a number of restrictions put in place so that the child was not aware and so the recording could not be disseminated. In addition, only her, her lawyer and a certified transcriber could listen to them, and any transcription work would have to accompany a sworn affidavit attesting to the transcription work and document produced. The Mother was also ordered to disclose within 14 days to all parties a copy of any transcription that she wished to use as evidence on this matter.

[43] Accordingly, the trial management judge was following this earlier order regarding the requirement of transcription of these statements when he made his trial management orders, as was the trial judge. The Mother was given the opportunity to transcribe these audio recordings but did not do so, as she claimed it cost too much. It should be noted that the Mother claims to be a successful mortgage broker, earning $200,000 per year, and sent her child to private Montessori school. It should be noted that she did transcribe some recordings and those were then deemed admissible.

[44] The Mother has taken exception to one particular occurrence where a video DVD, offered by the Society, was admitted without a transcript. It was a video of an interview of the child taken at the Peel Regional Police Services, in the presence of the Mother. There was no court order requiring that this video statement be transcribed before it was entered as evidence. Nonetheless, the trial judge assessed it for reliability and necessity and deemed it admissible. The Mother had a copy of the DVD, the police officer’s notes, and was present for the interview itself.

[45] On another occasion, the trial judge did allow one of the Mother’s audio tapes to be admitted, as all parties wanted it to be before the courts, despite it not being transcribed. It was a recording the mother made of the child after the first access visit with the Father, after the child’s interview at the Halton Regional Police. Despite the Mother’s insistence that the recording be played, it clearly reveals that the child lied to the police where she disclosed sexual misconduct by the Father, and that she loved both her parents.

[46] The Mother argues that she should have been permitted to use her videos for the purpose of impeachment or refreshing memory, irrespective of whether they were transcribed. Unfortunately, the examples provided are not instances when she seeks to impeach a witness or refresh their memory. In addition, given that the prior order set of rules to address the recordings’ reliability, which were not adhered to, the trial judge correctly refused to hear them.

iv. Improper Conduct of Voir Dire

[47] Out of court statements made by the child were of particular significance at the trial. Accordingly, it was determined at a trial management conference in February 2020 that a voir dire would occur at the commencement of trial to deal with the admissibility of those statements. The Mother alleges that she was denied natural justice and procedural fairness at a voir dire held at the commencement of trial, in that:

a) The Society called Detective Neil Harris to testify about the statement made to him by the child, when the Mother expected the Society worker, Ms. Jarvis to do so, and she was not prepared to cross-examine Detective Harris;

b) Counsel for the Society wanted to admit the DVD created by Detective Harris of his interview with the child, despite it not having been transcribed, and having only delivered a copy of it to the Mother on August 27 (4 days prior to the commencement of the voir dire);

c) The Father called Detective Sunstrum to testify at the voir dire, despite not advising the Mother that she would testify;

d) The Mother was not able to transcribe all the recordings she wished to rely on, and the trial judge would not vary his earlier order that a transcription would be required;

e) At the end of the first day of the voir dire, the trial judge ruled that the voir dire would henceforth be a blended voir dire, without giving the Mother an opportunity to seek legal advice as to the consequences of this ruling and how it would impact the conduct of her case;

f) The trial judge admitted the transcripts of the child’s statements, but not the actual recordings, citing a lack of time; and

g) In making his ruling on the voir dire, the trial judge refused to admit any of the statements made to non-professional third parties – such as friends, as he found them to be unreliable.

[48] Upon review of the transcript, I see no violation of the Mother’s right to natural justice and procedural fairness in the voir dire process.

[49] The procedure to be followed at the voir dire was laid out by the trial management judge on February 20, 2020. It was anticipated that this voir dire would take 2-3 days of trial time and would take place before the trial started. His endorsement also indicated that all agreed that evidence that the court accepted in the voir dire would not need to be repeated in the main trial.

[50] Granted, there were some changes in the procedure, but they were minor, and throughout, the Mother was fully aware of the case she had to respond to, and was given the opportunity to do so.

[51] It was decided at the last minute by the Society, that it would introduce one statement by the child through Detective Harris of the Peel Regional Police Service, and not through the Society worker as previously indicated. Detective Harris was on the Society’s witness list, so the Mother was aware he would be testifying, but it was not anticipated that he would testify as the first witness in the voir dire. The Mother admitted she was not prepared on that day for Detective Harris.

[52] I do not see that this violates the Mother’s right to natural justice and procedural fairness. Detective Harris’ only role was to introduce the video statement of the child, as he was the officer to whom the statement was made. The statements made by the child did not change but was appended to the affidavit of the worker, rather than to an affidavit of the Detective. A DVD of the interview was delivered to the Mother only four days prior to the trial, but that was when it was received by the Society lawyer – no one had it before hand. Nonetheless, the Society had also shared the Detective’s notes prior to the voir dire. On August 27, 2020, the Mother was served with a Notice of Intention to File Business Records, which indicated that the Society was relying on the notes of Detective Harris and the audio and video recording of the child and Detective Harris. She had notice that this evidence was forthcoming. There was no requirement that a transcript of this interview be available for trial.

[53] The Society asked the court to watch the entirety of the DVD. Detective Harris offered no other substantive evidence other than to offer the video into evidence and advise he had no further dealings with the matter, other than to transfer the matter to the Halton Police Service. While unexpected, the Mother was given the morning break to organize her questions and conducted an effective cross-examination of the Detective.

[54] The Father called Detective Sunstrum in the voir dire. She is a Detective Constable in the Domestic Violence Unit with Halton Regional Police (where the Peel Police transferred the file). Detective Sunstrum was the officer that took another one of the child’s statements. She had little else to add to the statement.

[55] The video of this interview was played and the Mother cross-examined Detective Sunstrum. She cross-examined the Detective on her interview methods, why she didn’t pursue certain lines of questioning further, and asked her if she felt she failed as an officer. She obviously had Detective Sunstrum’s notes and referred to them in her cross-examination. The Mother explicitly stated that there was no issue with the transcript and the interview video DVD being admissible at trial, and she agreed it should be part of the trial. She also insisted that the police notes and summary be included. The Mother was aware of this statement and was aware it would be relied on by the Society.

[56] With respect to the Mother’s recordings that were not transcribed, that has already been addressed. To allow the Mother to play these recordings, when the other parties had no notice or copy of their own, could make the trial unfair to them. They were entitled to rely on the trial management endorsement with respect to these recordings.

[57] With respect to the transcribed statements of the child that were admitted at the request of the Mother, the trial judge did not accept the DVD. In order to do so, he would have to play the eight hours of play therapy in court. The Mother had already prepared the transcripts of the disclosures she deemed important. The trial judge indicated that he already had seen a video of the child, during the police interview, and did not need to see hours of video where no disclosures were made. He made a decision for trial management reasons. I see nothing in that decision that would diminish the Mother’s right to natural justice or that she was not afforded procedural fairness.

[58] It is accurate that after the first day of the voir dire, the trial judge determined that a blended voir dire would be a better approach. It became evident to him after that first day that the context and chronology of these statements would have to be understood before he would be able to rule on their admissibility. By doing so, he in no way breached the Mother’s right to natural justice and procedural fairness. Her ability to seek the admissibility of statements, and to oppose the admissibility of the other statements, remained unchanged. Her ability to cross-examine the parties who offered the statements into evidence remained unchanged. If anything, it gave her more time to prepare for those particular witnesses. At the time the trial judge made these decisions, the Mother raised no objection.

v. Conclusion

[59] Having considered all the circumstances alleged, I cannot find that the Mother was denied procedural fairness or natural justice. For that reason, I deny her appeal on this ground.

[60] As noted, the Mother was self-represented throughout the trial. She did indicate to the trial management judge that she had counsel who was assisting her behind the scenes. On February 20, 2020, she was also given a document entitled “Guide – Representing Yourself at Your Family Law Trial” by the trial management judge, in order to help her prepare. Representing yourself can be a daunting prospect, especially if you are the appellant as against three respondents who are more or less aligned. Nonetheless, the Mother was able to enter documents as exhibits (more than half of all the trial exhibits were entered by the Mother), give evidence, and cross-examine all the witnesses (of which half of the entire trial was devoted to). The issues were well known to the Mother and she had notice of the witnesses that were to testify. Nothing new was presented at trial except the most recent interactions with the Society between the time the trial affidavits were filed and the date of trial. The Mother was afforded natural justice and procedural fairness throughout.

[61] I also find that the trial judge was even-handed in his rulings. He tried to assist the Mother in her questioning, and at times ruled in her favour with respect to objections by other counsel. The trial judge would not accept a Trial Brief that the Father wished to file and use at trial, because it was served after the deadline set out in the trial management endorsement, just as the Mother’s motions were not accepted as they were filed after the deadline.

[62] Accordingly, in all the circumstances, I am satisfied that the rules of procedural fairness were adhered and that the safeguards required to comply with the principles of natural justice for all parties were followed.

B. Admissibility of Child’s Statements

[63] The Mother alleges that the trial judge improperly erred in law in the manner in which he reviewed the various statements made by the child. By grouping them into three categories, he failed to consider each one individually, which is what is required by law.

[64] I agree with the Mother that the trial judge should look at each statement individually and make an assessment as to its admissibility, but I find that the trial judge did just that. While he did categorize the statements into three categories, there is nothing in his judgment that shows that each statement was not regarding individually before so doing. The trial judge correctly set out the law with respect to the admissibility of a child’s out of court statements as a principled exception to the hearsay rule. He correctly set out the test in R. v. Khan, [1990] 2 S.C.R. 531, and applied it accordingly. It should be noted that the trial judge did admit all of the statements as evidence that they were made, but not necessarily for the truth of their contents, even if they did not meet the threshold reliability test. It was only after he applied Khan, that he determined which statements were not reliable for the truth of their contents.

[65] I see no error in the trial judge’s approach.

C. Evidence of Dr. Wittenberg

[66] On December 13, 2017, an order was issued, on consent, that the Mother, the Father and the child undergo a hybrid parenting capacity/ psychological assessment. The parties’ questions to be answered by the assessor were as follows:

3. On consent of all parties the following questions as proposed by the Children's Aid Society of the Region of Peel will be put to the Assessor:

a) Can The Mother and [the Father] meet the emotional, physical, psychological, spiritual and educational needs for the child, [the child],into adulthood?

b) Do [the Mother] and [the Father] have any psychiatric, psychological or any other disorders or conditions that may impact their ability to care for the child, [the child].

c) What is the child's, [the child]'s level of attachment to [the Mother] and [the Father] and what type of attachment is it?

d) What clinical interventions would e required to reduce the conflict between [the Mother] and [the Father]?

e) What does the child, [the child] need in order to be comfortable in [the Mother's] and [the Father’s] homes, and what do [the Mother] and [the Father] think [the child] needs?

4. On consent of all parties the following questions as proposed by [the Mother] will be put to the Assessor:

a) What is the emotional attachment of [the child] to each of her parents?

b) What are the parenting capabilities of both parents?

c) Does either parent have any psychiatric, psychological or any other disorder or condition that may impact on their ability to care for the child, [the child]?

d) Is [the child] living in a stable home environment?

e) What are the possible effects on [the child] of a disruption to her continuity of care?

f) What are [the Mother's] and [the Father]'s respective abilities to provide emotional and physical care to [the child]?

5. On consent of all parties, the following questions proposed by [the Father] will be put to the Assessor:

a) What are the recommendations for therapy for the child, [the child] and either or both of the parents? Should the therapy be done individually or as a family unit?

[67] Dr. Jean-Victor Wittenberg was eventually appointed to do this assessment, although the Mother initially wanted a separate individual to do her psychological assessment. There was no issue with respect to the delivery of Dr. Wittenberg’s report in advance of trial. Dr. Wittenberg was called by the Society.

[68] The Mother argues that Dr. Wittenberg opined outside of his area of expertise and that the trial judge erroneously relied on that opinion in making his decision. In particular, she argues that Dr. Wittenberg’s diagnosis of her having a personality disorder, was outside of his area of expertise as a specialist in child psychiatry. She further argues that the trial judge, upon acknowledging that parenting capacity is a wide field, erred when he failed to narrow down Dr. Wittenberg’s area of expertise.

[69] Prior to giving evidence, Dr. Wittenberg was questioned on his qualifications. A copy of his curriculum vitae was filed as an exhibit. This shows that he is a medical doctor, who finished his residency in psychiatry in 1976. He was the chief resident in psychiatry at St. Michael’s Hospital in 1976-1977 before moving to the Hospital for Sick Children as a resident in psychiatry. He also has a diploma in child psychiatry from the University of Toronto. He has been a staff psychiatrist at the Hospital for Sick Children since 1978 and the head of the infant psychiatry programme since 1995. He is a psychiatric specialist with the Fellowship from the Royal College of Physicians and Surgeons of Canada. While his training and experience show him to be experienced in both adult and child psychiatry, his focus over the last 30 plus years has been child and adolescent psychiatry.

[70] In his qualification voir dire, Dr. Wittenberg indicated that the bulk of his work focuses on the child-parent relationship. He indicated that he has conducted more than 100 parenting capacity assessments in the child welfare setting and has been qualified as an expert in child welfare proceedings on approximately twelve occasions.

[71] The trial judge was particularly attuned to the areas of expertise in which Dr. Wittenberg was permitted to give opinion evidence. The trial judge highlighted that this was a hybrid assessment that also required a psychological component. Dr. Wittenberg admitted that he is not a psychologist and therefore cannot do a psychological assessment, but then added, “[…] part of a parenting capacity assessment is to understand, and the – actually, the area of my greatest expertise has to do with the interactions, and how a parent’s psychology affects the development and psychology of a child.” He indicated that his report for this case did just that.

[72] The trial judge also asked Dr. Wittenberg specifically how this hybrid parenting capacity/psychological assessment differed from other parenting capacity reports. Dr. Wittenberg indicated that it did not differ and that his process was the same. Dr. Wittenberg also indicated that while not a psychologist, both psychologists and psychiatrists can conduct parenting capacity assessments. The difference is in their methodology, not in their ability to complete a proper assessment.

[73] The Mother questioned Dr. Wittenberg on the difference in qualifications between a parenting capacity assessor and one who does hybrid assessments. The trial judge followed up with this line of questioning:

THE COURT: All right, we can ask a bit more about that then. So, this came to you as – I think you had mentioned earlier that you said a hybrid psychological assessment, you said, basically, you would do that within the context of the parenting capacity. And, you didn’t choose the words for the assessment. You got the, the order that had the wording.

A. Correct.

THE COURT: Is that a fair way to put it?

A. Yes.

THE COURT: Okay. So, within that, the parenting capacity assessment you look at the, the psychology of the parents, but you’re not, you’re not a psychologist, as you said. But you look at the psychology of the parents as it relates to their relationship with children, their ability to parent, their capacity to parent, all of that?

A. Yes, the, the influence of the parent’s psychology, the structure of their mind on the developing health, and, and development of, of the child, how, how the one impacts the other. The difference, perhaps, and, when I say I am not a psychologist, psychologists tend to do tests.

THE COURT: Yes.

A. They administer tests. I don’t do that. And, and so probably that’s the main difference. I don’t think that I needed to do specific psychological tests in, in this case. If I thought I, I needed to I would have referred to a psychologist, or asked for a psychologist to be involved as well. So, I think I was able to address the kinds of questions that were asked of me in doing this.

THE COURT: Is it fair to say that some parenting capacity assessments are done psychiatrists, and some are done psychologists. And, they have, sort of, different approaches based upon their, their backgrounds, and their expertise?

A. There are, there are differences and, and approaches. And, the psychologists are more likely to use these kinds of pencil and paper tests.

THE COURT: Yes?

A. And, psychiatrists is much less likely to. There are a lot of just individual differences in the way people do them as well.

THE COURT: okay.

MS. WILLIAMS [the Society]: And, Your Honour, if I may? I, I wouldn’t focus too much on the psychological assessment because I know that the order says, “Hybrid.”

THE COURT: Yes?

MS. WILLIAMS: But when I look at Dr. Wittenberg’s report it’s really a parenting capacity assessment. And, and even in the outset he says, “I was asked by the PCAS...,” meaning this is already in a letter dated February 12, 2018, “...to conduct a parenting capacity assessment.” Q. So, I think it was really supposed to be that, that’s how he understood it, and then in doing that he has to – and, correct me if I am wrong, consider the psychological component, as well, in terms of how it affects parenting.

A. Yes.

[74] Following this exchange, the trial judge qualified Dr. Wittenberg as an expert as follows:

THE COURT: All right. All right, thank you. I am prepared to qualify Dr. Wittenberg as an expert in the field of parenting capacity. And, that he is able to provide opinion evidence, therefore, in the area of his expertise. And, as we have heard the parenting capacity is a fairly wide field with different assessors, perhaps using different ways. But the overall – he – you – he answered the questions that were put to him as part of the court order for him to do this assessment.

[75] The order of December 13, 2017, and Dr. Wittenberg’s report was already part of the evidence. Accordingly, after this qualification, cross-examinations followed.

[76] It is a basic principle of evidence that a witness may testify as to the facts they perceived and not to any resulting opinions they may draw from those facts. The admission of expert opinion evidence is an exception to that rule.

[77] There is a two-step process for the admission of expert evidence. The first step is to determine if the evidence meets threshold admissibility, sometimes referred to as the Mohan factors. These factors are the relevance, necessity, absence of exclusionary rule and a properly qualified expert. The second step is a discretionary gatekeeping step, where the trial judge must balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks: R. v. Mohan, [1994] 2 S.C.R. 9, at p. 20; White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para. 23-24.

[78] The evidence of Dr. Wittenberg was clearly relevant, necessary, and not subject to an exclusionary rule. With respect to qualifications, I disagree that he gave evidence outside of his area of expertise. Dr. Wittenberg was qualified to provide a parenting capacity assessment, and, in particular, was qualified to answer the questions put to him in the Order of December 13, 2017.

[79] The Order of December 13, 2017, called for a hybrid parenting capacity/psychological assessment. Despite using the word “psychological” in the name of the assessment, the order further requires the assessor to determine if one of the parties has a psychiatric, psychological, or other disorder that may impact their ability to care for the child. Dr. Wittenberg, as a psychiatrist, is qualified to make a psychiatric diagnoses of personality disorder (unspecified type - DSM-V). This is irrespective of whether he has focused his career on child or adult psychiatry. Also, his professional focus for decades has been parent child relationship, which includes the impact of a parent’s diagnoses or actions on a child’s overall health.

[80] In addition, I find that the trial judge exercised his role as a gatekeeper properly. While the Mother focused on her diagnosis of a personality disorder, that was only one part of Dr. Wittenberg’s overall analysis. The remainder of the questions posed to Dr. Wittenberg were in areas that also fall squarely within his area of expertise, and with which the Mother takes no position. Dr. Wittenberg was asked if the child’s emotional, physical, psychological, spiritual, and educational needs were being met. He was asked if the child was attached to both her parents, and what she needed to be comfortable in both parents’ homes. He was asked about clinical interventions to reduce the conflict between the parents, and the capacity of both parents to parent the child. He was asked if the child was living in a stable environment, what the impact of a disruption in her continuity of care and any recommendations for therapy for the child. A possible psychological or psychiatric diagnosis was only one part of his overall opinion. Given the many facets of Dr. Wittenberg’s opinion, the trial judge was correct in finding that the potential benefits of Dr. Wittenberg’s evidence justify the risks of so admitting.

[81] In his reasons, the trial judge did refer to the Mother’s diagnosis of a personality disorder, but his Reasons for Judgment focused on the characteristics exhibited by the Mother and the impact of the Mother’s behaviour on the child. The trial judge highlighted Dr. Wittenberg’s conclusions that the child showed psychological challenges, such as oppositional behaviour in her relationship with her mother, social challenges at school, and difficulty in dealing with small disagreements with peers at school. The trial judge also focused on the harm to the child’s health by having to be subjected to unnecessary examinations and investigations which were repeatedly held by many healthcare professionals because of the Mother’s accusations. These could cause vulnerability, anxiety, and confusion in the child.

[82] Accordingly, I find that the trial judge focused on the impact of the Mothers’ behaviour, not her diagnosis, when determining the risk of harm to the child. The trial judge relies on Dr. Wittenberg’s focus on the behaviour of the Mother and the impact of the Mother’s behaviour on the physical, emotional, and psychological health of the child, which is the focus of a parenting capacity assessment. The trial judge also considered Dr. Wittenberg’s conclusion that the child is suffering emotional harm when living with the Mother and that it will be exacerbated in the future if a change in custody is not made. I see no error of law.

D. Discretionary Access Order

[83] The Mother claims that the trial judge’s order, that access be in the Father’s discretion, is an error of law.

[84] I see no such error. The trial judge’s authority to make such an order is grounded in s. 102 of the Child, Youth and Family Services Act, 2017. Upon hearing the evidence of all parties and upon the findings of fact he made, it was well within his authority to make such an order.

Conclusion

[85] For the foregoing reasons, I make the following orders:

a) The appeal is dismissed;

b) If any party is seeking their costs, they are to serve and file their written costs submissions, limited to 4 pages, single-sided, double spaced and no smaller than 12 point font, exclusive of Bill of Costs, no later than April 8, 2022; written responding submissions, with the same size restrictions, plus Bill of Costs, are to be served and filed no later than April 22, 2022; reply submissions, if necessary, limited to 2 pages, are to be served and filed no later than May 6, 2022.

Fowler Byrne J. Released: March 23, 2022

COURT FILE NO.: FS-210001-00 DATE: 2022 03 23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: P.D Appellant - and - THE CHILDREN’S AID SOCIETY OF THE REGION OF PEEL Respondent K.D Respondent REASONS FOR JUDGMENT Fowler Byrne J. Released: March 23, 2022