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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.— (8) 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.
85.— (3) A person who contravenes subsection 45(8) (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 Information
Ontario Court of Justice
In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11
Between:
Children's Aid Society of Algoma (Elliot Lake) Anthony Maratto, for the Society
— And —
P.C.-F. Douglas Kearns, for mother P.C.-F.
A.F. Self-represented, Father
Heather Mendes, Office of Children's Lawyer Counsel for the children
Heard: October 24, 2017
Evidentiary Ruling
Justice John Kukurin
Introduction
[1] This is a trial ruling on the admission into evidence of the views and wishes of the two children, a boy, age 14, and his sister, age 11, in this status review proceeding, sought to be introduced through their legal representative and through witnesses other than these children. These children have legal representation from Ms. H. Mendes, counsel appointed through the Office of the Children's Lawyer (OCL) by virtue of an order made earlier in the prior proceeding.
[2] The issue in this Ruling is whether these views and wishes are admissible into evidence at the trial, and, if so, in what way.
[3] The children are not being called as witnesses to give viva voce evidence. This is apparently a mutually agreed position of all parties. Their views and wishes are known to their OCL counsel. It appears that the trial management conference held in this case was not concluded, and no orders were made by the judge presiding for introduction of evidence as to the children's views and wishes. The mother now claims that she did not agree to these views and preferences being laid before the court, and is opposing such evidence.
[4] At first blush, it seems clear that such evidence would be hearsay in nature. It is intended to establish the truth of what the children have told either their counsel or other persons about their views and wishes. The children are not available for cross examination as they are in Saskatchewan.
[5] These views and wishes have also been expressed by these children to others who are called as witnesses in this case, mostly, but not exclusively child protection personnel. Several of these witnesses are tendering as their evidence, the statements of the children made to them relating to their views and wishes. It appears that these are hearsay statements that are intended to reflect the truth of their contents, namely the wishes and views of the children as to where and with whom they want to reside. The mother objects to such evidence as inadmissible hearsay.
[6] This is an unusual case procedurally in that the parties have prepared evidence in chief in affidavit form which has been exchanged prior to trial. This was never ordered to be done at the trial management conference that was commenced. The parties anticipated a follow up conference which never took place. Apparently, affidavit evidence in chief has become so commonplace that the parties anticipated that this was what was expected from them – and they did it. The consequence of these trial affidavits is that the court has the evidence in chief ahead of time and is well aware of what is coming on both sides – at least in chief. The down side is that these affidavits are chock full of hearsay, including evidence of what the children have said to some of the deponents of such affidavits from time to time. I acknowledge that it is difficult to prepare an affidavit for trial that excludes hearsay, but these affidavits are trial evidence. If the deponents were to give the same evidence in their affidavits viva voce, there would likely be non-stop objections from other parties.
[7] Accordingly, it is no secret to the court that the utterances of these children have, for the most part, expressed wishes to reside with their father in Saskatchewan rather than with their mother in Ontario. The most that the court could do at this point, if it wished to do so, is to disabuse itself of these utterances of the children reported in the affidavits of witnesses. This is what the mother will want as this evidence is damaging to her case. She wants the children returned to her care. Opposing her are the father, the society and the OCL counsel who all support continued placement with the father.
Views and Wishes of Children
[8] The Child and Family Services Act (the CFSA) requires the court, whenever it is directed to make an order that is in the best interests of the child, to take into consideration a number of listed circumstances. Among these is:
S.37 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
9. The child's views and wishes, if they can be reasonably ascertained.
[9] In the case of B.J.G. v. D.L.G., Martinson J. succinctly set out the Canadian position on the rights of children to express their views.
There is a United Nations Convention on the Rights of the Child, ("the Convention"). The Convention, which was ratified by Canada, with the support of the provinces and territories, in 1991, says that children who are capable of forming their own views have the legal right to express those views in all matters affecting them, including judicial proceedings. Canada has chosen not to incorporate the provisions of the Convention directly into domestic law because it takes the position that Canadian domestic law complies with the Convention.... That is because Canadian jurisprudence provides that in interpreting domestic statutes, Parliament and provincial legislatures are presumed to respect the rights and values set out in the Convention.
I agree with his comments and add that this right of children applies in Ontario, and in particular in proceedings under the CFSA.
[10] Assessments by qualified assessors, both under s.54 CFSA as well as under s.30 of the Children's Law Reform Act (CLRA), and OCL authored clinical investigations and reports under s. 112 of the Courts of Justice Act (CJA) routinely incorporate the views of children as to their residential preferences where these are ascertainable. These reported views and wishes are clearly hearsay in nature in these reports. Yet the statutes under which they are ordered provide that the reports are admissible, or are, in fact, "evidence" in the proceeding, despite their hearsay nature. There is no requirement that the child referred to in such reports must be proffered for cross examination in the proceeding. At best, the author of the report is the person whom the parties can cross examine.
[11] A more recent development, at least in Ontario, has been the "Voice of the Child Report". These are in their infancy but indications, following a pilot project, are that they will soon become more widespread as a method to get children's views and wishes before the court. I can think of nothing more hearsay in nature than a VOC report which does not apologize for being hearsay as it deftly slips into the trove of evidence in a case, all with judicial approval, and often judicial reliance for decisions made in the case.
[12] Finally, there is, in Ontario, Katelynn's Principle. This is an Ontario Bill which, if passed into law, will require the justice system to adhere to its requirements which include:
The child must be at the centre of the decision.
The child is an individual with rights. The child must always be seen, the child's voice must be heard, and the child must be listened to and respected.
Actions must be taken to ensure that a child who is capable of forming their own views is able to express those views freely and safely about matters affecting them.
The child's views must be given due weight in accordance with the child's age and maturity.
In accordance with the child's age and maturity, the child must be given the opportunity to participate before any decisions affecting the child are made, whether the participation is direct or through a support person or representative.
[13] From the foregoing, it is readily apparent that children's views and wishes are not only important to the courts but are becoming more and more necessary. The fact that they are before the court in hearsay form does not seem to matter to their admission into evidence. It is very seldom these days that children are required to testify viva voce in court, particularly when the case is one in which they are the subject child whose custody, or access to whom, or whose protection is the subject matter of the proceeding. Even with aids to testifying readily available, counsel generally shy away from calling the children and requiring them to submit to cross examination. The days of judicial interviewing of children in chambers are waning, and viewed by most judges as too fraught with problems when there are all of these other means to get their perspectives before the court.
Legal Status and Legal Representation for Children
[14] The two children in this status review proceeding have an OCL counsel as their legal representative. Under the CFSA, they are "children" and each is individually a "child". However, because of their ages, they have differences even as children. The sister is under age 12; the brother is over age 12. The statute differentiates children at age 12.
S.39 (4) A child twelve years of age or more who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.
S.39(5) A child less than twelve years of age who is the subject of a proceeding under this Part is not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child,
(a) is capable of understanding the hearing; and
(b) will not suffer emotional harm by being present at the hearing
[15] If a child, even under age 12, has legal representation, however, she has participatory rights in the proceeding "as if he or she were a party".
S.39 (6) A child who is the applicant under subsection 64 (4) (status review), receives notice of a proceeding under this Part or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under section 69 as if he or she were a party
[16] What exactly does this mean? The preponderance of case law establishes that a child who meets the pre-requisites in subsection 39(6) is not a "party" in the proceeding. Unfortunately, the CFSA statute does not state either the extent or limitations of such participation. Case law is only little more helpful. Courts occasionally will limit the participation of parties in a particular case, particularly parties that have been added to the proceeding by the court under the Family Law Rules. In such cases, the limits of participation are generally clearly spelled out. "As if he or she were a party" is devoid of any statutory guidance as to limits.
[17] Clearly a child (over age 12) can apply to review his or her status under the CFSA. Presumably this includes filing pleadings and evidence and being subject to the Rules that apply to such court proceedings, maybe even the costs consequences, if unsuccessful.
[18] Frankly, I do not know where the line is drawn that limits the participation of a child under s.39(6) CFSA. There are very few case authorities, and no appellate ones of which I am aware.
[19] Children have not always had a voice in decisions that affect them. Nor have they always been able to articulate their views, wishes, or preferences in any arena that was receptive. One huge stride in this area has been the establishment in Ontario of the Office of the Official Guardian, now more appropriately named the Office of the Children's Lawyer. Since its inception, this office has, among other things, established rosters of lawyers specially trained to act as legal representatives of children, in many kinds of proceedings, but particularly in CFSA proceedings where they represent children as if they were parties. Other services offered by the OCL include clinical investigations and reports by trained social workers, and sometimes by psychologists.
[20] A legal representative is the lawyer for the child. He or she is independent of the other parties in the proceeding and is there to represent the child. Although not specified in the CFSA, a child is able to be represented by any lawyer, not only a lawyer on the OCL panel. For a respondent parent in a child protection proceeding who is a minor, the default legal representative is an OCL lawyer. However, OCL panel lawyers traditionally are appointed to represent the child who is the subject of a CFSA proceeding. This is the case here.
[21] The role of a legal representative for a child appointed under s. 38 CFSA is not spelled out in the statute, but is, at least in part, in the OCL order that directs such representation.
[22] In terms of the role of OCL counsel for a child, and particularly in terms of articulating the child's views and wishes in a contested court proceeding, there is long standing appellate authority that states what such counsel may do and what is not allowed. This is binding authority on this court.
The motions judge was correct in refusing to allow counsel retained by the Official Guardian to advise the court of the children's views and preferences on the issue of access. Absent consent, counsel cannot be both an advocate and a witness on an important issue. Counsel retained by the Official Guardian is entitled to file or call evidence and make submissions on all of the evidence. Counsel is not entitled to express his or her personal opinion on any issue, including the child's best interests, nor is counsel entitled to become a witness and advise the court what the children's access-related preferences are. If those preferences should be before the court, resort must be had to the appropriate evidentiary means. [Strobridge v. Strobridge, 18 O.R. (3d) 753]
[23] As to what the "appropriate evidentiary means" were, one suggestion was that such counsel might resort to what is now commonly called a "social work assist", namely, he or she "... could have retained a social worker to interview the children and then had the social worker file an affidavit setting out the results of the interview and the wishes expressed by the children, or the social worker could have been called to give viva voce evidence."
[24] OCL counsel in the case before me did not do this. And I personally do not see the distinction between a social worker presenting in affidavit or viva voce form what the children recounted to him or her as their views and wishes, and what the children may have said to other persons called at trial as witnesses in that same respect. In either case, it would be hearsay and inadmissible if it was intended to reflect the truth of those views and wishes.
[25] I ask myself a rhetorical question. If (hypothetically) I were a party, how do I convey to the court what it is that I want from the proceeding? The answer is simply to file an Answer, which has a convenient Part 8, which prompts a party who files an Answer to set out what court order he or she is asking the court to make. If I were involved in the proceeding "as if I were a party", the filing of an Answer would be a very convenient way for me to get what I want, that is my views and wishes, before the court. I see nothing in the CFSA statute that would preclude me or prohibit me from filing an Answer. Moreover, if I am authorized to file a Status Review Application, surely I am entitled to file an Answer to one. The court can certainly take note of the pleadings of any person and infer what is his or her wishes from what he or she asks of the court. I have, on occasion, asked OCL counsel for a child why OCL counsel do not file Answers, and the response I have received has usually been non committal. It is not something that OCL counsel do. It is not something that OCL counsel in this case has done.
[26] There may be other ways to introduce a child's views and wishes into the court proceeding. They can swear their own affidavits setting these out. However, they subject themselves to cross examination. This is not customarily done either, and is only one step removed from attending to give viva voce evidence. If all of the evidence of a child's views and wishes is from what the child has told others, and if this is not admitted on consent of all parties, there appear to be no means to get this evidence before the court. In short, they cannot be "reasonably ascertained" if there is no permitted evidentiary means to do so.
[27] This does not seem fair, nor does it seem right. If a child can participate as if he or she were a party, surely he or she has the same right as any formal party to have his or her counsel express and advocate his or her views and wishes. How can such counsel do that without disclosing what those views and wishes are?
Analysis and Ruling
[28] The admissibility of hearsay statements has undergone fairly drastic changes over the last half century in Canada. The most significant has been the development of the principled approach to hearsay led by the Supreme Court of Canada since the early 1990's. Prior to this time, the exceptions to the rule against hearsay were the traditional or classic exceptions that had developed over several centuries, some imported from English jurisprudence. The principled approach did not do away with these traditional exceptions. They are still today accepted as a means to justify the acceptance into evidence of what might otherwise be seen as objectionable hearsay.
[29] Hearsay has been defined with many shades of meaning. Ultimately, it is the motive for which hearsay evidence is tendered that makes it hearsay.
Evidence of a statement made to a witness by one not called as a witness, is inadmissible hearsay when that evidence is intended to establish the truth of the contents of that statement. [R. v. O'Brien, [1978] 1 SCR 591; Subramanian v. Director of Public Prosecution [1956] 1 WLR 965 (P.C.); R. v. Smith, [1992] 2 SCR 915]
[30] Limited admissibility is a concept that applies to some evidentiary circumstances. Included within this limited admissibility is evidence that is introduced for the state of mind of the declarant at the time the declarant made the statement. The evidence comes not from the declarant himself or herself, but from one to whom the statement was made. That person is the witness who states in court what the declarant had said out of court. It is accordingly hearsay, but is admissible for the limited purpose of establishing the declarant's state of mind when he made such statement. Naturally, the state of mind of the declarant must be something that has relevance to some issue in the case.
[31] It seems to me that the declarations of the children in this case as to their views and wishes as to where they prefer to reside fall within this exception to the rule against hearsay. It reflects their state of mind at the time that they made such statements. It is relevant to an issue in this case. In fact, it is an issue that the court is mandated to consider under paragraph 9 of s. 37(3) of the CFSA. It is a way to ascertain these views and wishes that does not conflict with the rule against hearsay, and it thus can be "reasonably ascertained". It is introduced for this limited purpose only, and permits the children's counsel to advocate for them with some context, instead of in a factual vacuum.
[32] An alternative to this traditional exception would be to admit the statements of views and wishes of the children under the principled approach. However, I do not believe that, on the evidence presented to date, that the pre-requisite of 'necessity' has been met. The children are fourteen, almost fifteen, and eleven years of age respectively. They are old enough to testify. The fact that they are not being called does not change the fact that they can be called as witnesses. Nor do I take judicial notice of any adverse effect if they are.
[33] Accordingly, evidence of the views and wishes of the children as to their preference of where and with whom they wish to live will be admitted as hearsay under the state of mind exception to the rule against hearsay. This ruling does not apply solely to the evidence of the applicant society. It applies to evidence of any and all parties in this case. It also applies to evidence of any person who has been statutorily accorded rights to participate "as if he or she were a party".
Released: October 30, 2017
Signed: Justice John Kukurin
