Court File and Parties

Ontario Court of Justice

Date: 2017-03-01

Court File No.: Halton 461/13

Between:

Trevor Alexander George Applicant

— And —

Thi Minh Thuy Nguyen (a.k.a. Tammy Nguyen) Respondent

Before: Justice Victoria Starr

Evidentiary Ruling and Reasons released on: March 1, 2017

Counsel:

• Peter Tensuda, counsel for Trevor George
• Ann Stoner, counsel for Tammy Nguyen

VICTORIA STARR J.:

INTRODUCTION

[1] During this custody and mobility trial I am called upon to determine the admissibility of certain out of court statements made. This is my ruling.

BACKGROUND

[2] A clinical investigator was appointed by the OCL to carry out an in-depth investigation with respect to issues of custody and access. Ms. Fawzia Patel's report was provided to the court and the parties pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA) on September 19, 2014.

[3] During the trial the parties and several witnesses gave evidence about out of court statements (hearsay) made to them by people who did not testify at the trial, including the child. Several of the out of court statements the parties seek to rely on were made to the OCL clinician, who included these statements in her s. 112 report, which formed part of the evidentiary record at trial.

[4] The parties each wish to rely on certain of those hearsay statements for the truth of their contents. The parties addressed the issue of the admissibility of out of hearsay in their written submissions.

[5] The trial in this matter has concluded. The court's judgement and reasons will be released separately.

[6] The parties agree that the statements made by the parties' daughter to the Office of the Children's Lawyer clinician (OCL clinician) are admissible as evidence of her state of mind. I have admitted these statements for this purpose.

[7] The parties do not agree that statements made by the child to anyone other than the OCL clinician should be admitted under the state of mind exception to the hearsay rule. The mother seeks to have them excluded because they are not reliable. While the father asking to have them admitted relies on their purported reliability. These other witnesses gave very little to no evidence that would enable me to assess reliability. For that reason, I have not admitted these statements, even under the state of mind exception.

[8] The mother seeks to rely on out of court statements made to the OCL clinician by people who did not testify at trial, for the purpose of proving the truth of the facts asserted within the statements. The father did not explicitly address this issue.

THE ISSUE

[9] The issue this court must decide is: Can out of court statements made to the OCL clinician by people who did not testify at trial be admitted for the purpose of proving the truth of the facts asserted within the statements?

[10] What follows is my decision and reasons on this evidentiary issue.

THE LAW

[11] The court was referred to the principles of the law on hearsay as summarized by Justice Harper in the 2009 decision of Ward v. Swan. The mother's counsel suggests that Justice Harper's comments in paragraphs 7 and 8 of that decision stand for the proposition that out of court statements made to a social work assist through the Office of the Children's Lawyer, are not admissible for the proof of the truth of the content of the statement. If that is the correct interpretation, and it is not at all clear to me that it is, then each and every collateral an OCL clinician speaks to would have to be called to give that original evidence before the statement could be relied upon to prove a fact. At paragraphs 7 and 8, Justice Harper states:

7 When evidence is offered as state of mind evidence, it is important that this evidence "not be used as a back door to admit evidence of past acts through the medium of a child's alleged current feelings." See: D.A. Rollie Thompson, "Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings - Part 1" (1988) 7(1) Canadian Journal of Family Law 11 at p. 50.

8 The above analysis of out of court statements relative to state of mind applies both to out of court statements offered through a fact witness and an expert witness, such as an assessor or a social work assist through the Office of the Children's Lawyer. See: R. v. Mohan, [1994] 2 S.C.R. 9.

[12] The ambiguity about what Justice Harper meant arises for two reasons. First, the case he relied upon in support of the principle asserted in paragraph 8, R. v. Mohan, dealt with the evidence of an expert, not an OCL clinician. Second, Justice Harper did not refer explicitly to the legislation and rules governing the admissibility of a clinician's report prepared pursuant to section 112 of the CJA. So, I cannot tell whether he considered the legislative and regulatory directives about the admissibility and use of such evidence.

[13] I have decided that, unless the evidence of the clinician with respect to an out of court statement made to her is challenged, any out of court statement made to an OCL clinician by any person who does not also testify at trial, including a child, is presumptively admissible as if that third person gave that evidence at the trial. In other words, the out of court statements the OCL reports as having been made to him or her, are presumptively admissible as if original evidence.

[14] I have come to this conclusion based on a comparison of the differential treatment in the relevant legislation and rules, of reports of the Office of the Children's Lawyer made pursuant to section 112 of the CJA, and the report of an expert assessor appointed pursuant to section 30 of the CLRA. I have also considered the purpose of an OCL investigation and the important role these reports play in promoting the primary objective of the Family Law Rules, O Reg 114/99 (the Rules).

[15] First, an assessor appointed pursuant to section 30 of the CLRA is presumptively an expert. As such, any facts, including those asserted in an out of court statement made to the assessor, may be relied on as a basis for his or her opinion. For the court to rely upon the opinion, the facts relied on by the expert as the reason for forming that opinion must still be proven at trial. What an OCL clinician conducting a section 112 investigation offers is not an expert opinion in the legal sense. Rather, OCL clinicians provide a report of what they learned during their investigation, their observations, and recommendations based on what they observed and their specialized training. This difference is readily apparent from the language of the sections under which these two professionals are each appointed. Compare subsection 30(1) of the CLRA and subsection 112(1) of the CJA:

Assessment of needs of child

30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child [emphasis mine].

Investigation and report of Children's Lawyer

112. (1) In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's support and education [emphasis mine].

[16] Second, different language is used in the legislation regarding how the report is to be treated for evidentiary purposes. Subsection 112(3) of the CJA very clearly states that the report forms part of the evidentiary record upon the OCL filing it and provided it meets the technical requirements identified in the subsection:

Report as evidence

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person's knowledge and setting out the source of the person's information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. [my emphasis].

[17] Subsection 30(9) of the CLRA uses the more permissive language of "may be filed". It reads:

Admissibility of report

30 (9) the report mentioned in subsection (7) is admissible in evidence in the application. [My emphasis]

[18] Third, compare the mechanism available to challenge the two different reports. Subsections 30(10) and 30(12) of the CLRA read:

Assessor may be witness

30 (10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application.

Cross-examination

30 (12) any party may cross-examine the expert at the trial.

[19] The formal way to challenge the facts in the OCL report is governed by subsection 112(4) of the CJA and subrule 21(e) of the Rules. These read:

REPORT OF CHILDREN'S LAWYER

Rule 21. When the Children's Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,

(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and [emphasis mine]

(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.

Attendance on report

s. 112(4) Where a party to the proceeding disputes the facts set out in the report, the Children's Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness.

[20] Finally, this interpretation and approach enables the court to deal with cases justly as required by subrules 2(2) and in the ways contemplated in subrule 2(3). This is why: The majority of litigants simply do not have the resources to hire assessors, conduct their own investigations, or, to participate in lengthy trials. Many of them are also unrepresented and simply do not know what information the court needs to make a decision, let alone how to go about getting the information needed. In these situations the court often needs some way of obtaining reliable information from collaterals. Obtaining an OCL investigation and report gets the information the court needs to determine a child's best interests in front of it. The issue is not one of admissibility but rather the weight to be afforded to the out of court statement – something judges are tasked with. Dispensing with the need to call each and every person the OCL spoke to as a witness at trial, unless formally challenged, allows the court to deal with cases justly as required:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

ANALYSIS

[21] In this case, the OCL report contains statements made by a number of people who were not called by either party to give evidence at the trial. The father served and filed a statement of dispute wherein he challenged the reliability of the out of court statements made to the clinician by Ms. McBurnie, Ms. Ruth Rogers, Amber Van Beek, Dr. Ghali, and Robin from Dr. Ghali's office. Of these, the following people did not give evidence at trial:

(a) "Robin" from Dr. Ghali's office;

(b) Ruth Rogers;

(c) Robin Mirza.

[22] In her closing submissions, the mother's counsel pointed out that none of these three individuals testified at trial. She relies on the out of court statements made to the OCL clinician by each of these people. Given the father's challenge, if the mother wished to rely on these out of court statements, she was obliged to either call them as her witnesses or prove necessity and reliability. She did neither of these things.

[23] Therefore, I find that all out of court statements made by these three individuals are inadmissible hearsay for this trial. All other out of court statements made by people, including the child, to the OCL clinician by people who did not testify and whose statements were not challenged by the father in his statement of dispute, are admitted as if these statements are original evidence.

Released: March 1, 2017

Signed: "Justice Victoria Starr"

Footnote

[1] The way to challenge the admissibility or weight to be afforded to such statements includes serving and filing a statement of dispute, and/or, calling the person to whom the statement is attributed, as a witness at trial, or, to call contrary evidence at trial. If a party does none of these things then the out of court statement may be relied as if it was original evidence given at trial.