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.
(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.
(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.: 407-08
Date: December 11, 2013
Ontario Court of Justice
Between:
Windsor-Essex Children's Aid Society, Applicant,
— And —
T. R. and R. P., Respondents.
Before: Justice Barry M. Tobin
Heard on: September 30, October 2 and 3, December 3, 4, 5, 9 and 10, 2013
Released: December 11, 2013
Counsel:
- F. Philcox for the applicant Society
- P. Mingay for the respondent, T.R.
- R. Ljumovic for the respondent, R.P.
- M. Frank for the Office of the Children's Lawyer, legal representative for the child
TOBIN J.:
RULING ON VOIR DIRE
1: INTRODUCTION
[1] The Windsor-Essex Children's Aid Society ("Society") brought a Status Review Application which was issued March 1, 2012. It seeks a finding that the child of the respondents, K. E. P. born …, 2010 remains in need of protection under subclauses 37(2)(b)(i) and (ii) of the Child and Family Services Act ("the Act"). It does so on the basis that the respondents have not fully complied with existing court orders, have exercised inconsistent access and having regard to the length of time the child has been in Society care. The Society seeks an order of Crown wardship without access.
[2] In support of its request for a continued finding and Crown wardship order without access, the Society sought to introduce in evidence a number of statements made by children of the respondents to third parties. These children, D. L. .L. born …, 2005 ("D") and C-M. born …, 2006 ("C."), are siblings of the child who is the subject of this case.
[3] Rulings were made during the hearing with reasons to follow. These are my reasons.
2: LEGAL CONSIDERATIONS
[4] In my decision rendered in Family and Children's Service of St. Thomas and Elgin v. A.C. (2013), ONCJ 452, I set forth the legal considerations that apply on a voir dire in which the evidence of children is sought to be introduced as follows:
[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?
(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.
[5] Counsel for the respondents conceded that the necessity component of the principled approach was met. I agree with counsels' position and find that the necessity requirement has been met. See Collins v. Pitre.
2: THE STATEMENTS
2.1: Vincenza Butera
[6] Ms. Butera is a child protection worker employed by the Society. She was assigned to the R./P. family from March 2011 to November 2012.
[7] On February 27, 2012, Ms. Butera and another worker went to the home of the respondent mother, T. R., to interview her children D. and C. These children are siblings of the child K. whose father is Mr. P.
[8] The two social workers privately interviewed the children D. and C. in D.'s bedroom. The children were familiar with Ms. Butera as she had met and spoken with them a number of times. At this point, the worker had been involved with this family for over one year. Her relationship with the children was initially strained when trying to engage with these children. They would not speak very much with her when she tried to engage them. They would spit at and throw things at the worker. Getting information from the children and sitting down with them was a challenge. There was little difference in the way the children C. and D. related to this worker. However, by February 2012 the worker observed that the children's behaviours began to decline. The worker had no concerns about the intellectual ability of the children.
[9] This social worker had training in conducting investigations with children and interviewing them.
[10] On the evening of February 27, 2012 when the interview took place with the two children, Ms. Butera testified that "Curiously [the children] were engaged in this particular discussion more than I had seen in the...past." The conversation she had with the children lasted approximately 10 to 15 minutes. Both children presented as a bit nervous. Ms. Butera made her notes of the conversation that evening after she returned home.
[11] The statements made by the children were spontaneous as the children were discussing back and forth how they would answer or respond. She asked open-ended questions of the children.
[12] The reason for the interview was that earlier that day the respondent father reported to the Society that he had contact with the children contrary to the then existing court order. The answers given by the children corresponded to the information given by Mr. P.
[13] The worker testified she did not make any offers or inducements to the children so they would answer the questions. She made no threats of negative consequences if they did not answer the questions.
[14] From this conversation, the Society seeks to introduce the following statements of the children:
D.
- "Bad R. visited on Sunday."
- "Bad R. is K.'s daddy."
- When asked if bad R. ever sleeps over, both children said, "Yes."
- Both children confirmed that "bad R." had a parrot.
- "The bad R. is not supposed to be around K.."
- "We don't like him."
C.
- "We're not supposed to talk about bad R.. We'll get into trouble."
- "He hurts us."
- "Yeah, we don't like him."
[15] I am satisfied that the threshold reliability requirements have been met having regard to the circumstances surrounding the taking of the statement by the worker. She was at the home as part of her investigation. I accept the worker's notes are accurate and she had training in interviewing children. I accept the worker asked open ended questions and did not offer inducements or threaten negative consequences to the children.
[16] The children's statement that "We don't like him" is admitted on the basis of it being an expression of the children's respective contemporaneous state of mind.
2.2: Justine Danford
[17] Society counsel provided an evidence chart which contained the statements it sought to introduce through Ms. Danford. The electronically provided evidence chart is incorporated into these reasons. I have added the second column which numbers each utterance. Each statement is identified in the chart along with the paragraph number in the witness' affidavit.
| # | Who Made It | To Whom | What Was Said - Where | Affidavit, sworn September 30, 2013 |
|---|---|---|---|---|
| 1 | C. | Justine Danford | Interviews took place at ... Public School "I thought you were not allowed to come here (referring to the school)" | Page 3, paragraph 10 |
| 2 | C. | Justine Danford | When asked how C. got to school that morning she stated "Mommy's boyfriend drove me to school". When I asked her the name of mommy's boyfriend she replied "Lo." | Page 3, paragraph 11 |
| 3 | C. | Justine Danford | C. told me that Lo. just drove her this morning however she stated that he has given both her and her sister other rides to school before | Page 3, paragraph 11 |
| 4 | C. | Justine Danford | C. told me that her sister rode her bike to school with their mom and that Lo. put D.'s bike into the car when he brought C. to the school | Page 3, paragraphs 11, 12 and 13 |
| 5 | C. | Justine Danford | C. told me that her mother had a very important appointment that day and they could not be late for school | Page 3, paragraph 12 |
| 6 | C. | Justine Danford | C. told me that Lo. drives a "gray car with duct tape" | Page 3, paragraph 11 |
| 7 | C. | Justine Danford | "I don't like Lo. because he snores so loud and he always stays over because he doesn't have a bed and he doesn't have any money" | Page 3, paragraph 16 |
| 8 | C. | Justine Danford | "He (Lo.) likes to make music and he likes to be rude to me" | Page 3, paragraph 17 |
| 9 | C. | Justine Danford | "He (Lo.) blows toothpaste into my ears from his flute as a joke but I am sick of it" | Page 3, paragraph 17 |
| 10 | C. | Justine Danford | "He (Lo.) takes cymbals and crashes them in the middle of the night" | Page 3, paragraph 17 |
| 11 | C. | Justine Danford | C. told me that they (her sister and mother) attend Lo.'s home and he attends their home. | Page 3, paragraph 15 |
| 12 | C. | Justine Danford | C. discussed that Lo. brings his dog Sasha to play with their dog Simone. | Page 3, paragraph 15 |
| 13 | C. | Justine Danford | C. stated that "Lo. is almost a part of the family because he is mommy's boyfriend" | Page 4, paragraph 19 |
| 14 | C. | Justine Danford | C. began discussing her biological father and paternal grandfather in Detroit. She reported that her father "slapped" her when she was a baby. She reported that he had guns. She reported that her grandfather who is "buried" used to hit her as well. She repeated that her dad "slapped" her when she was a baby and threw a nut at her head. When I told her that I was sorry all of that had happened to her and explained that is not fair or right, C. responded "it was just a freaking small nut so it did not hurt much" | Page 4, paragraphs 21 and 22 |
| 15 | C. | Justine Danford | C. reported that her mom never swears | Page 4, paragraph 23 |
| 16 | C. | Justine Danford | When asked if her mom was fighting with anyone C. reported "Yes R." | Page 4, paragraph 23 |
| 17 | C. | Justine Danford | C. reports that Rod is threatening to call the Police on them | Page 4, paragraph 23 |
| 18 | C. | Justine Danford | C. reported that she thinks "R. wants us dead" | Page 4, paragraph 23 |
| 19 | C. | Justine Danford | C. reported that R. has guns and threatened to shoot their dog Simone. | Page 4, paragraph 24 |
| 20 | C. | Justine Danford | C. disclosed that when the family had bed bugs in their home in the summer time they stayed at Lo.'s home. She stated that then "there was a guy with a gun" so they needed to leave Lo.'s so they went to stay at R.'s house. She reports they stayed overnight there. | Page 4, paragraph 24 |
| 21 | C. | Justine Danford | C. stated that R. is "so strong" | Page 4, paragraph 25 |
| 22 | C. | Justine Danford | C. reported that he saw R. in the summer time and that he kissed her when they were at his house | Page 4, paragraph 24 |
| 23 | C. | Justine Danford | C. again reported being at R.'s house when they had bed bugs in their house | Page 4, paragraph 24 |
| 24 | C. | Justine Danford | C. said "If you try to talk to D. she won't even talk to you" | Page 4, paragraph 25 |
| 25 | C. | Justine Danford | C. stated that she would like me to be her mom | Page 4, paragraph 26 |
| 26 | C. | Justine Danford | C. asked me "Why did you make me have less visits with my sister K." | Page 4, paragraph 26 |
| 27 | C. | Justine Danford | C. stated in regards to the above comment "My mom told me it was your fault" | Page 4, paragraph 26 |
| 28 | C. | Justine Danford | When C. was asked if her mom has said anything else about me or the CHILDREN'S AID SOCIETY, C. replied that she does not remember | Page 4/5 paragraph 26 |
| 29 | D. | Justine Danford | D. stated angrily "Why are you here?" pointing to me | Page 5, paragraph 28 |
| 30 | D. | Justine Danford | When asked about her morning D. repeatedly stated "I do not remember" | Page 5, paragraph 28 |
| 31 | D. | Justine Danford | D. reported that C. had slept in that day but that she (D.) is always first up. | Page 5, paragraph 29 |
| 32 | D. | Justine Danford | D. stated that her mom was fighting with C. that morning because C. "was being whiny and slept in" | Page 5, paragraph 29 |
| 33 | D. | Justine Danford | When asked if anyone else was in the family home that morning D. looked away from me, stating "ummm....", looking around then looking back at me and said "ummm...nooo...nooo" | Page 5, paragraph 30 |
| 34 | D. | Justine Danford | When I asked D. if she was certain as she took a long time to answer my question D. told me that she does not remember. | Page 5, paragraph 30 |
| 35 | D. | Justine Danford | When asked how she got to school that morning D. told me that she walked with her mom and sister. | Page 5, paragraph 30 |
| 36 | D. | Justine Danford | D. identified her mother's boyfriend as "Lo." and stated immediately afterwards "that he is actually a really nice guy" | Page 5, paragraph 31 |
| 37 | D. | Justine Danford | When asked if Lo. was over this morning D. stated that he was not. | Page 5, paragraph 31 |
| 38 | D. | Justine Danford | D. told me that he has a "silver kind of car" and told me that she had rode it in before. She reported that he has drove them to school before too. D. reported that she liked driving in the car "because it is fun and we get places fast" | Page 5, paragraph 32 |
| 39 | D. | Justine Danford | D. reported that they have stayed at Lo.'s home and he has driven them to the "big park downtown" | Page 5, paragraph 32 |
| 40 | D. | Justine Danford | D. reported that they bring their dog Simone to Lo."s home and that he brings his dog Sasha to their home | Page 5, paragraph 33 |
| 41 | D. | Justine Danford | D. reported that Lo. has a "underground pool and its so fun" | Page 5, paragraph 33 |
| 42 | D. | Justine Danford | When asked where the family stayed when they had bed bugs D. reported that they went to Lo.'s in the middle of the night. She said her mom woke her up and they needed to go right away. | Page 6, paragraph 34 |
| 43 | D. | Justine Danford | D. was discussing how they met Lo. at "Mi.'s house". She said they would see Lo. all the time when they went to Mi.'s. When asked who Mi. was she told me it was the person they gave all their cats too. | Page 6, paragraph 34 |
| 44 | D. | Justine Danford | I asked D. to tell me more about when they stayed at Lo.'s house when they had bed bugs in their home. D. reported that they "stayed the nights" and "he took us to a place called summer camp where we got to eat our lunches outside". She reported they would go back to Lo.'s after summer camp. She discussed going on a trip to London with summer camp then going back to Lo.'s afterwards. | Page 6, paragraph 34 |
| 45 | D. | Justine Danford | When asked if they stayed at anyone else's home when they had bed bugs D. reported they did not. | Page 6, paragraph 34 |
| 46 | D. | Justine Danford | When I asked D. if her mom was fighting with R., D. reported "No" | Page 6, paragraph 36 |
| 47 | D. | Justine Danford | When I asked D. if she has seen R. lately, she spoke about seeing him on the computer. | Page 6, paragraph 37 |
| 48 | D. | Justine Danford | When I asked D. if she had seen R. this summer, D. reported that she had not. | Page 6, paragraph 37 |
| 49 | D. | Justine Danford | D. spontaneously stated that "my sister lies" | Page 6, paragraph 37 |
| 50 | D. | Justine Danford | I asked her if she was aware of her mom fighting with anyone currently. D. told me other than C. this morning no one else. | Page 6, paragraph 38 |
| 51 | D. | Justine Danford | When asked if anyone swears at her, D. reported that no one does but that they watched a movie with Lo. that has swearing in it. | Page 6, paragraph 39 |
| 52 | D. | Justine Danford | I asked if Lo. spends the nights at their home. D. reported that he does then stated "he wears the same clothes everyday because he does not have any other clothes" | Page 6, paragraph 39 |
| 53 | D. | Justine Danford | D. asked me why I took away visits with her sister K.. | Page 6, paragraph 40 |
| 54 | D. | Justine Danford | D. reported to me that her mom told her it was my fault (in regards to the above comment) | Page 6, paragraph 40 |
| 55 | D. | Justine Danford | When asked if her mom says anything else to her about me or the CHILDREN'S AID SOCIETY D. stated that her mom tells her to say only nice things about her (Tamara) to me. | Page 6, paragraph 40 |
| 56 | D. | Justine Danford | D. continued to say that they are not allowed to say anything that could get them "taken away" | Page 6, paragraph 41 |
| 57 | D. | Justine Danford | When I asked her what kind of things she is not allowed to talk about with me, she told me that she cannot talk to me about R. or else "you will take us away" | Page 6, paragraph 41 |
| 58 | D. | Justine Danford | I asked D. if she would tell me if she saw R. D. replied "It is a promise made between mom, C. and me not to" | Page 6/7, paragraph 41 |
| 59 | D. | Justine Danford | I asked D. if they are ever alone with Lo.. D. told me that yes sometimes he babysits them alone. | Page 7, paragraph 42 |
| 60 | D. | Justine Danford | D. spoke about a recent thunderstorm where the power went. She said it woke up her and her sister and they went and sat with her mom and Lo. and had a late night snack and lit a candle. She reported it was fun. | Page 7, paragraph 42 |
| 61 | C. | Justine Danford | I met with C. again. Upon seeing her, she stated "Now what is it?" and stated "I was telling you the truth" | Page 7, paragraph 44 |
| 62 | C. | Justine Danford | C. asked if I was back "because my sister won't talk to you?" | Page 7, paragraph 44 |
| 63 | C. | Justine Danford | I asked C. to tell me again how she got to school this morning. She stated "I don't know" I asked her to think again and she instantly stated "Lo.'s car" | Page 7, paragraph 45 |
| 64 | C. | Justine Danford | I asked C. who else was in the car with her and she replied "I forget" . | Page 7, paragraph 45 |
| 65 | C. | Justine Danford | I stated that she had told me earlier about staying at Lo.'s when they had bed bugs then going to Rod's- I asked her if Rod is the man with the big bird. C. stated that Rod did have a big bird but he does not have it anymore. | Page 7, paragraph 46 |
[18] Ms. Danford is a child protection worker and is the ongoing family services worker. She assumed carriage of the Society's file pertaining to the subject family on November 16, 2012.
[19] On September 26, 2013, this worker attended at ... Public School to interview C. and D.. When the worker arrived, the child was at or near the school's office. At 11:20 a.m., the worker met with C.
[20] The worker attended the school as a result of receiving an email from a Society intake worker about the respondent mother and her boyfriend. As a result of the receipt of this e-mail, which contained information about a report of the mother's and her boyfriend's behaviours towards the children, the worker was directed to attend the school to conduct an interview of the children.
[21] The worker spoke with the children separately in the vice-principal's office. The vice-principal was not at school that day so she had the private use of that office.
[22] The worker has received training in conducting interviews with children. The worker had a good rapport with C. but less so with D..
[23] The interview with C. began at approximately 11:25 a.m. and ended at 12:06 p.m. The conversation with D. began at approximately 12:20 p.m. D. was the only one in the room during this interview which lasted approximately 40 minutes.
[24] The worker then met with C. again beginning at approximately 2:12 p.m.
[25] I accept submissions made by Society counsel that questions asked by the worker of the children were open-ended and answers received were spontaneous. No inducements to have the children answer were made, nor were there any developmental issues the worker was aware of that would impair the reliability of the children's statements. I am satisfied that the experienced and trained worker recorded her conversation accurately.
[26] I note that no cross-examination by any counsel was conducted of the witness on the voir dire.
[27] The Society sought to introduce the following statements under the state of mind exception: 1, 5, 18, 24 – 26, 29, 34, 36, 49, 56 – 58, 61 and 62. With respect to those statements the Society sought to introduce, on the basis that they reflected the child's contemporaneous state of mind, the following statements are not admissible on the basis they do not reflect a state of mind: 7 (except that portion of that statement "I don't like Lo.."), 8, 24, 26, 34 (however it is admitted for the truth of its content), 49, 56 – 58, 60 and 62.
[28] I am satisfied the balance of the statements the Society seeks to admit which were on the principled basis are admissible for the reasons stated above.
3: SUMMARY
[29] The evidence sought to be admitted by the Society on this voir dire was considered by me in relation to the factors which are considered indicia of threshold reliability or under the state of mind exception.
[30] I am satisfied the Society workers were trained professionals and had training in taking statements from children. The statements were recorded shortly after they were alleged to have been made.
[31] There is an element of spontaneity in a number of the children's statements.
[32] 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.
Released: December 11, 2013
"original signed and released"
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.