WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report 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.
45.— (8) Prohibition: 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.
45.— (9) Idem: order re adult.
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.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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 and Parties
Court File No.: ST. THOMAS 225/06
Ontario Court of Justice
Between:
Family & Children's Services of St. Thomas and Elgin Applicant
— And —
A.C., W.C., and S.C. Respondents
Before: Justice B. Tobin
Heard on: May 13–17 and June 24–25, 2013
Ruling released: August 12, 2013
Counsel:
- J. Dittrich, counsel for the applicant
- A. Skuce, counsel for the respondent A.C.
- K. Orkin, counsel for the respondent S.C. Collinson
TOBIN J.:
RULING ON VOIR DIRE
1: INTRODUCTION
[1] The Family & Children Services of St. Thomas and Elgin ("Society") brought a Child Protection Application which was issued November 1, 2010 and amended on April 13, 2011. In the amended Application, it seeks a finding for four children, M.M.C. born […], 2002, J.M.C. born […], 2005, D.S.C. born […], 2006 and D.L.C. born […], 2006 (individually referred to by their first names and collectively as "the children") are in need of protection under clauses 37(2)(a), (b) and (g) of the Child and Family Services Act ("Act") due to physical abuse and risk of physical and emotional abuse. It also seeks an order of Crown wardship for the four children without access.
[2] In support of the allegations, the Society sought to introduce in evidence a number of statements made by the children to third parties. At my request, counsel provided an evidence chart that set out the statements the Society sought to admit, to whom the statements were made and the basis upon which the Society sought to have them admitted. I also was provided with written submissions from counsel.
2: PROCESS
[3] The legal bases for the Society's request to have the statements admitted can be characterized as the statements being either admissible pursuant to the state of mind exception to the hearsay rule or under the principled exception for the truth of the statement.
[4] The admissibility of the statements was determined in a voir dire, the structure of which was defined in an order made at a trial management conference held before Justice O'Dea. From this trial management meeting, the Society was required to identify every statement it wanted admitted. The third party to whom the evidence was given would testify on the voir dire as part of their evidence in-chief. The evidence on the voir dire would apply to the trial at the conclusion of the evidence as a whole. Each respondent was entitled to give evidence on the voir dire; in this regard, respondents' counsel requested, and I allowed, that they do so as part of their trial evidence. That is, counsel for the respondents cross-examined the Society's witnesses as they were called. They did not call their voir dire evidence until their respective clients testified as part of their cases. In accordance with the trial management order, submissions on the voir dire were to be merged with the trial submissions.
3: LEGAL CONSIDERATIONS
[5] In determining whether statements made are admissible, I am guided by the following principles:
Before evidence can be admitted, it must be both relevant and material.
Hearsay evidence is an out of court statement offered for the truth of its contents.
An out of court statement offered for the truth of its contents is presumptively inadmissible unless it falls within a traditional exception or is admitted under the principled approach.
State of Mind
One traditional exception is a statement which expresses a person's contemporaneous "state of mind." A basis for this exception is that the person who heard the statement can attest to it by observing accompanying behaviour and demeanour of the child and relay that to the court. What is not permitted through this exception is a statement of current feelings that contains a description of a past event. (Thomson, D.A.R., Are There Any Rules of Evidence in Family Law? 2003-2004 CDM. F.L.Q. 245 at 288-289)
In Professor Thomson's article entitled Hearsay and Exceptions to the Hearsay Rule (Niman, H., Evidence in Family Law, Chapter 9-9:40:60) he sets out the following five basic requirements that must be met for this category of statements to be admissible under the "state of mind" exception:
(i) a statement asserting a condition or state;
(ii) the statement must describe a contemporaneous physical, mental or emotional state of the declarant;
(iii) the statement may not describe the cause of the state, whether it be past or present events;
(iv) the mental state can include a person's present intention to do a future act; and
(v) the statement must not be made under circumstances of suspicion.
Truth of Contents
The principled approach requires a consideration of a two factored test:
(1) Is it necessary to receive the evidence from a third party?
Counsel for the respondents conceded that the necessity component was met. I agree with counsel's position and find the necessity requirement has been met. See Collins v. Petrie.
(2) Is the evidence reliable?
The reliability factor refers to threshold reliability. Reliability is met where the statement is made in circumstances which provide sufficient guarantees of its trustworthiness. The questions to be asked are:
(i) has the statement been recorded accurately and objectively; and
(ii) are there factors that undermine the reliability of the child's statement.
The evidence surrounding the making of the statement is to be considered in order to make a determination of the threshold reliability. The inquiry at this stage is not to address ultimate reliability and the weight to be given to the statement. This assessment is to be part of the fact finding process of the trial judge.[1]
[6] As the Society seeks to introduce the statements, it has the onus of proving reliability.
4: THE STATEMENTS
[7] Society counsel provided an evidence chart which contained the statements it sought to introduce and their respective purpose or legal basis. The electronically provided evidence chart was incorporated in these reasons. A chart was made for each witness who received a child's statement. Each statement is identified in the chart and the paragraph number in that witness' affidavit is also set out.
CHRISTINA JOLLIFFE
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | M.M.C. not permitted to speak to worker about Will or she would not be allowed to go the park, p. 11 | State of Mind |
| 2. | M.M.C.'s statement to worker, she seen W.C. pin her mother against wall, p. 11 | Spontaneous Utterance |
[8] Ms. Christina Jolliffe was an intake worker employed by the Society.
[9] On July 28, 2009, Ms. Jolliffe took M.M.C.'s statement while they were together in the living room of the respondent A.C.'s home. A.C. is the mother of the four children. The worker went to the home as part of her investigation of a report that the respondent W.C. was cohabitating with A.C.. M.M.C. was then seven years of age. A.C. was in the kitchen and W.C. was not at home when the statement was taken. The worker took notes and I accept they are accurate. The worker had training in interviewing young children. The questions asked were not recorded, just the answers were. However, I accept the worker asked open-ended questions and did not offer the child inducements to speak with her nor threaten negative consequences if she did not.
[10] The child's statement, that she is not permitted to speak to the worker about W.C. or she will not be allowed to go to the park, is not admissible. I find it is not an expression of a child's state of mind as argued by the Society. Rather, the child is repeating a statement made to her by an unnamed third party without any further details or context. The statement is, in essence, a double hearsay one. The statement is not an explicit statement revealing the child's state of mind.
[11] The statement that M.M.C. saw W.C. pin her mother up against the wall is admissible. The threshold reliability requirement has been met having regard to the circumstances surrounding the taking of the statement by the worker.
JENNIFER CHAMBERLAIN
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | J.M.C. stated to the worker the glass was broken when they came home their grandmothers Tab 2, p. 17 | State of Mind Inference protecting parent |
| 2. | Girls stated their mother and W.C. fight; they raise their voices and get upset. Tab 2, p. 18 | State of Mind and truth of fact |
| 3. | J.M.C. statement that when her mother and W.C. were outside having a cigarette they were upset and W.C. hit the window and walked in his feet, he went to Uncle Mikes Tab 2, p. 18 | Truth of Content |
| 4. | J.M.C. statement that she and M.M.C. were upstairs and hid under a blanket, scared. J.M.C. then showed what her foot looked like, which was trembling. Tab 2, p. 19 | State of Mind Children were scared |
| 5. | J.M.C. statement they then went to their grandmothers. | Truth of content |
| 6. | M.M.C. and J.M.C. statement they are afraid of W.C. at times and not others Tab 3 p. 20 | State of Mind Scared at times |
[12] Jennifer Chamberlain was the child protection worker (family services worker) responsible for A.C., S.C. and W.C. from September 2, 2009 until November 2010.
[13] On October 16, 2009, Ms. Chamberlain interviewed M.M.C. and J.M.C. about a report she received on October 5, 2009 concerning an incident of violence that resulted in a broken window at A.C.'s and W.C.'s home. M.M.C. would not agree to meet with Ms. Chamberlain without J.M.C. being present. Both girls made statements to Ms. Chamberlain about the broken window incident.
[14] While the girls were together J.M.C. said that the glass was broken when they got home from their grandmother's. Both girls stated that their mother and W.C. sometimes fight and raise their voices when they get upset. J.M.C. then stated her mother and W.C. were outside having a cigarette and they were upset. Will hit the window and then went for a walk in his sock feet to Uncle Mike's house. She and M.M.C. went upstairs and hid under a blanket. They were scared. J.M.C. showed the worker what her foot was like during the incident; it was trembling. They then went to their grandmother's home with their mother.
[15] At the time of the questioning M.M.C. was seven years of age and J.M.C. was four. The worker asked open-ended questions such as, "How is it going at home?" They were encouraged to tell the truth. The interview took place approximately 11 days after the incident occurred. J.M.C.'s comments to the worker when questioned did not appear to arise from prompting. Ms. Chamberlain took notes. I find that Ms. Chamberlain was objective and not biased in her approach to the children. J.M.C.'s latter statements were detailed and coherent.
[16] For these reasons, I find the threshold reliability test has been met. Numbers 1 to and including 6, above, are admissible for the truth of their content on the basis of the test of threshold reliability having been met. The fact that some statements are contradictory will go their ultimate reliability.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 7. | J.M.C. statement that her mother drinks adult drinks. Tab 2, p. 41 | Truth of Content |
| 8. | M.M.C.'s statement you're not supposed to say that. Mommy isn't anymore. She is quitting. Tab 2, p. 41 | State of Mind Protecting parent |
[17] On May 3, 2010, the worker privately interviewed M.M.C. and J.M.C.. They met in the living room of their home. A.C. was in the home but not in the living room. Neither S.C. nor W.C. was present. The worker did not make any notes. She was there to speak to the children about alcohol use by the mother. The worker asked the girls if they knew what alcohol is. The girls stated they do and referred to alcohol as "adult drinks." J.M.C. said her mother drinks adult drinks. When J.M.C. said this, M.M.C. tapped J.M.C. and gave her a nasty look and said, "You were not supposed to say that. Mommy isn't any more. She is quitting." Neither child was able to identify how much or how often their mother drank alcohol. Both children indicated they have not seen their father consume alcohol.
[18] The worker did not take notes as she interviewed the children, however I am satisfied her comments were reliably recorded shortly after the fact. The way the statements were received does not give rise to suspicious circumstances. The children stopped talking with the worker when they got tired of talking to her and they just got up and left. The statements referred to at numbers 7 and 8 above are admissible on the basis the test for threshold reliability has been met. I am satisfied the answers were in response to non-leading questions provided to an independent and objective person.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 9. | M.M.C.'s statement that her brother and sister were at B.K. and G.'s. Tab 2, p. 52 | Not admitted on consent |
| 10. | M.M.C.'s statement that her mother was out, S.C. was not drinking and that her mother is perfect. Tab 2, p.52 | State of Mind Protecting parent, aware of adult issues |
| 11. | M.M.C.'s statement her mother tells her to keep secrets Tab 2, p. 53 | State of Mind Emotional well being of child, protecting parent |
| 12. | M.M.C.'s statement her dad is quitting drinking and she knows the police attended at her home on the weekend because her dad was drinking too much Tab 2, p. 54 | State of Mind Emotional well being of child, protecting parent |
| 13. | M.M.C.'s statement that her mother often asks her to watch her siblings outside while she in inside watching a movie or having a bath Tab 2, p. 55 | Truth of Content |
[19] On June 21, 2010, the worker interviewed M.M.C., who was then eight years old, at her school. The worker was not able to provide specifics about the questions asked at this interview but did about the answers. The interview took place one day after the Society acted upon information that S.C., who was responsible for looking after the children at the time, was not properly doing so and that he was intoxicated. I am satisfied the statements were accurately reported to an objective person. I am satisfied the statements at paragraphs 10, 11, 12 and 13 above meet the threshold test of reliability.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 14. | D.S.C.'s statement that my mom throwed me on the steps Tab 2, p. 67 | Truth of Content |
| 15. | D.S.C.'s statement that his mother was mad and yelled Tab 2, p. 67 | Truth of content, state of Mind Can infer he was scared because mother mad |
| 16. | D.S.C.'s statement mommy hurt my wrist Tab 2, p. 67 | State of Mind Child's perception mom hurt wrist on purpose, emotional well being |
| 17. | D.S.C.'s statement that his mother spanks him in the face, p. 67 | State of Mind Childs perception of inappropriate discipline, he thinks he is hit in face |
| 18. | D.S.C.'s statement mommy and daddy always drink beers mommy drinks beers all day. p. 67 | State of Mind Child's perception of parents' alcohol consumption and example set by parents |
| 19. | D.S.C.'s statement that he saw W.C. soon, last week, p. 68 | Truth of Content |
| 20. | D.S.C.'s statement that his mother and W.C. had a fight last year. P. 68 | Truth of Content |
| 21. | D.S.C.'s statement, in reference to the scar on his head, mommy threwed me into the wall and that's how I go the got on my head. p. 68 | Truth of Content |
| 23. | D.S.C.'s statement it was bleeding a lot. p.68 | Truth of Content |
| 24. | D.S.C.'s statement this hurt my feelings. p. 68 | State of Mind How child felt during incident |
[20] On October 28, 2010, the worker interviewed D.S.C.. She attended as a result of a report she received from D.S.C.'s teacher concerning an injury to the child.
[21] The child was then four years of age. He was interviewed at school in a room off of the library. The worker told D.S.C. what her role was. She asked how things were at home and at school. The statements are set out in numbers 14 to and including 24 above. Having regard to the standard to be considered, I find the statements meet the test of threshold reliability. I find the worker was objective and properly recorded the child's statements.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 25. | D.L.C.'s statement his mother was mad and threw D.S.C. down the basement stairs because he was getting in trouble, p. 72 | Truth of Content |
| 26. | D.L.C. statement, she always spanks us, she spanks me on the head, p. 72 | State of Mind Child's perception of how disciplined |
| 27. | D.L.C.'s statement that S.C. had thrown D.S.C. into the wall next to the closet. p. 73 | Truth of Content |
| 27.1 | D.L.C.'s statement S.C. drinks adult drinks | Truth of Content |
[22] The worker interviewed D.L.C. that same day. She asked him if anything happened at his home that morning. The statements D.L.C. made are set out in numbers 25 to and including 27.1 above. The witness was not able to recall in detail what was said. I found the witness' evidence concerning D.L.C.'s statements about how D.S.C. got a cut on his head to be vague. She said it was likely she asked him questions about this – that is, the cut on his head. There is no evidence as to whether D.L.C. saw the events referred to or was repeating what was told to him by someone else. The statements at 25 to 27.1 are not admitted.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 28. | J.M.C.'s statement D.S.C. got the cut on his head after his mother pushed him in the wall next to the closet. p. 75 | Truth of Content |
| 29. | J.M.C.'s statement that there was a lot of blood, p. 75 | Truth of Content |
| 30. | J.M.C.'s statement she was upstairs this morning, heard thumping and her mother was upset, p. 75 | Truth of Content |
| 31. | J.M.C.'s statement that S.C. drinks adult drinks p. 76 | Truth of Content |
| 32. | J.M.C. statement she had been to daddy Billy's house. p. 77 | Truth of Content |
| 33. | J.M.C.'s statement that her mother has asked her to keep secrets but she did not know what those were. p. 77 | State of Mind Perception of protecting parent, Encouraged to lie. |
[23] The worker then interviewed J.M.C. and her statements are set out at numbers 28 to and including 33 above. J.M.C. was five years old at the time. The worker asked J.M.C. about the scar and to tell the worker about that. She was asked follow-up questions in order to get context. The statements made by J.M.C. are admitted as they meet the threshold test of reliability.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 34. | M.M.C.'s statement that D.S.C. cracked his head open on the wall near the door. p. 79 | Truth of content |
| 35. | M.M.C.'s statement that her mother had a hold of D.S.C.'s arm during the incident p. 79 | Truth of Content |
| 36. | M.M.C.'s statement there was a lot of blood p. 79 | Truth of content |
| 37. | M.M.C.'s statement that she and her brothers went to the bathroom while her father was watching them and shaved their fingers with a razor. p. 80 | Truth of content |
[24] The worker then interviewed M.M.C. and her statements are set out at numbers 34 to and including 37 above. The worker started out by asking M.M.C. general questions about what had happened at home that morning. The child did not appear to be aware of what had happened. The worker described M.M.C.'s demeanour as guarded. M.M.C. appeared conflicted to the worker. M.M.C. appeared not to know whether or not she should she share information. When responding to questions concerning her parents M.M.C. hesitated when compared to her telling about her finger being cut. While the child's demeanour while speaking with the worker need to be considered in assessing ultimate reliability, I am satisfied the statements meet the test for threshold reliability and are admitted.
AMANDA McCOOEYE
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | Views and preferences Boys statement they would like to reside with the foster families and see mom and dad. Girls statement they like living where they are and they would like to be home with mom. p. 33 | State of mind |
| 2. | M.M.C.'s statement that while visiting her dad at great-grandma's house there was an incident that made her feel scared and unsafe. p. 54 | State of mind |
| 3. | M.M.C.'s statement that great grandma became physical with her and D.L.C. when they were fighting over the remote, she got angry and grabbed M.M.C. and D.L.C. and she swears a lot. p. 54 | Truth of content |
[25] Amanda McCooeye is the children's services worker for all four children.
[26] Paragraph 1 is not admitted under the state of mind exception to the hearsay rule. The particulars of each child's statement and sufficient detail about context were not provided.
[27] Ms. McCooeye spoke with M.M.C. about an incident that occurred on April 22, 2012 at the home of her great-grandmother. M.M.C. and D.L.C. were fighting over the remote control and their great-grandmother became angry with them, grabbed them and swore. She recounted that her great-grandmother said, "All you do is bitch, bitch, bitch." M.M.C. said she was scared at the time it happened. The witness consoled M.M.C. and told her the actions were not appropriate. The statements were recorded in the workers' case notes. The test for threshold reliability has been met and the statements at numbers 2 and 3 above are admissible.
J.S.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | M.M.C.'s school work, Illustrator Record, Exhibit 6 States grandmother was mean to her and describes incident | Truth of Content, State of Mind |
| 2 | M.M.C. school work Connector Exhibit 7 | State of Mind |
[28] J.S. was M.M.C.'s teacher. The statements the Society seeks to have introduced are statements contained in two school assignments completed by M.M.C..
[29] The statements sought to be admitted do not properly constitute state of mind statements. They appear to describe past events. They are not admitted.
K.N.
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | D.S.C.'s statement to K.N., foster parent that he wants to live with her permanently and did not wish to return home p. 6 | Spontaneous utterance |
| 2. | M.M.C.'s statement she asked if she could call the foster parent, mommy. P. 8 | Truth of Content |
| 3. | D.L.C. statement or crying in sleep saying no mommy no. p. 11 | Spontaneous utterance |
| 4. | Consent to strike. p. 53, 67 and 68 | |
| 5. | Statements by J.M.C., D.S.C. and D.L.C. about an incident when W.C. hit their mother, glasses broke and there was blood all over the bathroom. p. 71 | Truth of Content and State of Mind |
| 6. | M.M.C. statement to her siblings not to talk about it. p. 71 | State of Mind |
[30] K.N. was the foster parent of the four children from October 28, 2010 until June 29, 2012. M.M.C. and J.M.C. had also been placed with Ms. Naylor and her husband from mid December 2006 until December 2007.
[31] The statements at number 1 and 3 above are admitted under the state of mind exception.
[32] The statement at number 2 is admitted as accurately and reliably recorded.
[33] The statements at number 5 and 6 above were overheard by K.N. The three children were in the bathroom discussing a time when W.C. hit A.C., broke her glasses and there was blood. The witness heard a story like this ten or more times. The conversation always occurred while they were in the bathroom. She was not sure if it was in the morning or evening. The conversation usually started when one of the children would say, "Do you remember what happened when...," and someone else would say, "Yeah." K.N. asked how that made them feel. They responded, "Scared." She did not question them any further. M.M.C., the oldest, said they should stop talking about it because it won't happen anymore. No records were kept of the dates these conversations happened. K.N. notified the Society the first time it occurred to tell the worker what had happened. No other indicia of threshold reliability were provided. The statements are not admitted as they are an amalgam of a number of conversations.
KAYLA GOWDY
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | M.M.C.'s statement one night she woke up and heard glass shattering and music playing. p. 14 | State of Mind |
| 2. | M.M.C.'s statement that she is surprised that W.C. is allowed to visit the children in the home. p. 20 | State of Mind |
| 3. | M.M.C.'s statement she remembers when mom and W.C. had a fight and police came to the house. p. 20 | State of Mind |
| 4. | M.M.C.'s statement she and J.M.C. were in their room they were so scared they pulled the blanket over their head to hide | State of Mind |
| 5. | M.M.C.'s statement W.C. and A.C. were fighting, they were yelling, saying bad words and hitting each other. p. 21 | State of mind |
| 6. | Paragraph 24 consent to strike it | |
| 7. | M.M.C.'s statement she saw A.C. and Will fight in front of the TV. p. 25 | Truth of Content |
| 8. | M.M.C.'s statement, she was happy W.C. went to jail so she could sleep in the morning and not hear them fight. p. 25 | State of mind |
| 9. | D.L.C.'s statement that was scared of his mother and W.C. when they fight. p. 28 | State of mind |
| 10. | D.L.C.'s statement when they fought he would hide because he was scared of the yelling and screaming. p. 28 | State of Mind |
| 11. | Hearsay statements of kids made to foster parent to receive help from the children's services worker in order to care for the kids. pp. 9, 10, 11, 16, 22, 23 | Admitted for sake made not necessarily truth of content |
[34] Ms. Gowdy was the children's services worker from November 4, 2010 until September 26, 2011.
[35] Paragraphs 1, 2, 3, 5, 8, 9 and 10 are not state of mind statements and are not admitted as such.
[36] Number 4 is a state of mind expression and is admitted.
[37] With respect to number 5 above, M.M.C. was not able to identify how old she was when the events she described occurred. She said it was five or six years ago and later said she was six or seven years old. She was eight at the time of the interview. This evidence does not meet the test of threshold reliability.
[38] With respect to number 7, 8 and 9 above, the witness testified she could not remember if the words ascribed to the child were the child's words. This statement does not meet the test of threshold reliability.
[39] The double hearsay statements referred to in paragraph 11 are not admitted.
PAULA MOONEY
| No. | Evidence Sought To Be Admitted | Purpose of Admission |
|---|---|---|
| 1. | D.L.C.'s statement that D. (foster parent) threw him against the wall. He also stated it was an accident and he said he was sorry. p. 84 | State of Mind |
| 2. | M.M.C. statement dad is returning home from jail and that the dad told everyone sorry p. 90 | State of Mind |
| 3. | M.M.C. statement because he beat up mommy p. 90 | State of Mind |
| 4. | J.M.C. statement yeah and he really hurt her she was bleeding. p. 90 | State of Mind |
| 5. | J.M.C. statement to the Access worker, you just hurt me. p. 138 | State of Mind |
| 6. | J.M.C. statement to Paula that she touched her private area. p. 138 | State of Mind |
| 7. | The children's statement they did not want to visit at the grandmothers anymore. p. 146 | State of Mind |
| 8. | J.M.C. statement she did not get to say good bye to L.. p. 175 | Spontaneous |
| 9. | M.M.C.'s statement so we did not get to say bye to W.C.. p. 175 | Spontaneous |
| 10. | M.M.C.'s statement she never wants to see W.C. again. p. 175 | Spontaneous |
| 11. | M.M.C. and J.M.C. statement that W.C. punched A.C. in the face and made her bleed and they seen this. p. 175 | Spontaneous statement |
| 12. | M.M.C. and J.M.C. statement they got scared and ran upstairs and hid in M.M.C.'s room. p. 176 | Spontaneous statement |
[40] Paula Mooney is a child protection worker employed by the Society. She supervised access between A.C., M.M.C., J.M.C., D.L.C. and D.S.C. beginning in October 2010. S.C. joined these access visits in December 2010. For a period of time, W.C. attended access as well. Her affidavit set forth the contents of her access notes. I am satisfied the notes were accurately recorded and she was an objective observer. Her purpose was not to interview the children but to observe. I am satisfied the statements were, for the most part, spontaneous ones. They are admitted under the principled exception, having met the test of threshold reliability.
5: SUMMARY
[41] The evidence sought to be admitted by the Society on the voir dire has been considered by me in relation to those factors which are considered indicia of threshold reliability or under the state of mind exception.
[42] Only those statements that were firsthand hearsay were admitted. The witnesses who heard the statements and gave evidence were available for cross-examination.
[43] Those statements which met the threshold test of reliability were recorded shortly after they were alleged to have been made. Except as noted in my reasons, the witnesses did attempt to accurately record the language used by the children.
[44] The Society workers were trained professionals and some had training in taking statements from children.
[45] The witnesses who received the children's statements have no personal interest in the outcome of the litigation.
[46] There was an element of spontaneity in a number of the children's statements. The evidence of the witnesses did not suggest the children had reasons to fabricate statements they were giving.
[47] I considered that M.M.C. and D.S.C. made statements accusing other adults of inappropriate behaviour toward them. The fact these statements were made does not affect the threshold reliability of those statements admitted into evidence.
[48] The ultimate reliability and weight to be applied to the statements will be dealt with in the context of a review of all the evidence presented at this hearing.
[49] I thank counsel for preparing the evidence chart and providing it electronically.
Released: August 12, 2013
"original signed and released – via e-mail"
Barry M. Tobin Justice
Footnote
[1] In addition to the articles referred to above, I also considered Ward v. Swan; Avakian v. Natiotis, 2012 CarswellOnt. 11779 (Ont. C.J.); and Children's Aid Society of Ottawa-Carleton v. L.(L.) (2001), 22 R.F.L. (5th) 24.
