WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

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

87.— (8) Prohibition re identifying child.

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

87.— (9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

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

Court Information

Ontario Court of Justice

Date: 2018-12-20

Court File No.: Woodstock C224/17

Between:

Children's Aid Society of Oxford County Applicant

— AND —

E.M.T. M.A.R. H.L.J.M. Respondents

Before: Justice S. E. J. Paull

Voir Dire on Threshold Necessity heard: December 3, 2018

Reasons for Judgment released: December 20, 2018

Counsel:

• Jane Hegney — counsel for the applicant
• James Battin — counsel for the respondent(s), M.A.R.
• Gary D. McQuaid — counsel for the respondent(s) E.M.T.
• Susan Gordon — Office of the Children's Lawyer

PAULL J.:

Introduction

[1] Before the court is a protection application dated November 20, 2017 seeking a supervision order placing the 3 children with their mother E.M.T. with discretionary access to M.A.R. with his biological children J.R. (male born […], 2009) and O.R. (female born […], 2011) and his step-child M.R. (female born […], 2006), and with discretionary access to H.L.J.M. with his biological child M.R.

[2] E.M.T. supports the position taken by the applicant.

[3] H.L.J.M. has not participated in these proceedings and was noted in default on January 23, 2018.

[4] M.A.R. seeks a custodial order in favour of E.M.T. with his periods of care and control of the children as outlined in a domestic agreement dated October 23, 2017 between himself and E.M.T.

[5] This matter has been set down for trial. As part of its case the applicant seeks to tender out-of-court statements made by the children to third parties for the truth of their content.

[6] E.M.T. and OCL counsel support the applicant's position that the statements are admissible under the principled approach to hearsay.

[7] M.A.R. opposes the admission of the statements on the basis that both the elements of necessity and threshold reliability are not met. He feels that the children should be required to give viva voce evidence if the applicant seeks to rely on any evidence offered by them.

[8] It was agreed that, prior to the trial, the voir dire would be held to determine the issue of the necessity element of the principled hearsay exception based on the following terms:

i) The voir dire would be restricted to the issue of necessity, with a separate voir dire, if required, being conducted regarding the issue of threshold reliability.

ii) The evidence on the voir dire would be applied to the trial proper, subject to any admissibility rulings.

[9] The court heard evidence from two witnesses, Dr. Kimberly Harris on behalf of the applicant and M.A.R.

The Law

[10] The essential defining features of hearsay are the fact that it is an out of court statement adduced to prove the truth of its contents and the absence of a contemporaneous ability to cross-examine the statement.

[11] Hearsay is presumptively inadmissible unless it falls within a traditional exception or if indicia of reliability and necessity are established on a voir dire (the principled exception).

[12] Child hearsay can be admitted as an exception to the hearsay rule, using the principled approach of establishing necessity and reliability as set out in R. v. Khan, [1990] 2 S.C.R. 531.

[13] The first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph 31 in Khan, the Supreme Court of Canada said that:

"The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish the requirement of necessity."

[14] In the Law of Evidence in Canada, third edition, Bryant, Lederman, Fuerst, the authors state at paragraph 6.96:

"Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant's attendance in court."

[15] The test for necessity is not whether the hearsay statement is the best form of the evidence (for that will always be live testimony), but whether it is the "best available form" in the circumstances. R. v. Couture, 2007 SCC 28.

[16] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related. She states at para 49:

"The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it."

[17] In CAS Ottawa v. L.L., 2001 CarswellOnt 4169 (SCJ), the court relied upon evidence from a police officer and a foster mother in reaching the conclusion that threshold necessity had been established. The court states at paragraph 6:

"As stated above, necessity has been interpreted to mean 'reasonably necessary'. In addition, it 'must be given a flexible definition, capable of encompassing diverse situations.' See R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.). The requirement of necessity may be established if the child will suffer emotional trauma from testifying."

[18] Courts have found reasonable necessity established without requiring expert testimony on the issue of risk of trauma, fragile emotional state or other adverse consequences resulting from testifying at trial. In R. v. Ngoddy, 2015 ONCJ 783, evidence was accepted by the trial judge from support workers, the complainant's mother, as well as a physician.

[19] Courts often rule the necessity requirement is met on the basis of a finding that the child could be traumatized if required to give evidence. As noted by Perkins J. in C.(S.E.) v. P.(G.), 2003 ONSC 2028 at paragraph 32:

"It would be ironic in the extreme on a custody and access issue, where the only factor is what is in the best interest of the child, if the litigation process were used so as to cause harm to the child for the ostensible purpose of ascertaining her wishes or even shedding light on her best interests".

[20] This reasoning applies equally in child protection cases.

[21] Necessity was found with 13 and 8 year old children in Children's Aid Society of Ottawa v. M.S., 2018 ONSC 4276. The older child had suffered trauma in the past, the children had loyalty conflicts, they experienced stress when speaking about their views and preferences and did not want to upset their mother and a child psychiatrist testified about the stressful experience of testifying.

[22] In the case of Children's Aid Society of Halton Region v. J.O., 2013 ONCJ 191, the court found that the Society must lead evidence of necessity, and that discomfort is not enough. The court writes at paragraph 48:

"It is therefore incumbent on the court to have the best evidence available, particularly if the court is considering the removal of the children from their parents' care. While the transcripts of the children's evidence will assist the court and will considerably shorten the children's testimony, the transcripts are not the best evidence to determine credibility and to assess the demeanour of the children. The transcripts do not offer the same value as hearing and seeing the children directly when giving their evidence. I am extremely concerned about accepting this hearsay evidence on such a crucial issue at this stage in the child protection trial without the benefit of directly observing the children. This is in the children's best interests as well as being consistent with principles of fundamental justice."

[23] In Children's Aid Society of Algoma v. L.H., [2002] O.J. No. 5118, the court did not find the necessity stage satisfied, writing at paragraph 30:

"Fear, or disinclination, or reluctance, even discomfort do not constitute necessity."

[24] In considering the issue of emotional trauma as a ground for necessity, Mdm. Justice McLachlin stated the following in R. v. Rockey:

"The argument for the appellant [accused] on trauma suggested that only the most severe trauma could justify a conclusion of necessity. I respectfully disagree. Mere discomfort is insufficient to establish necessity. But where there is evidence, as here, that an already traumatized child might be further traumatized by being questioned by strange men in a strange situation, that satisfies."

Evidence

[25] Dr. Harris is a registered forensic and clinical psychologist and is currently the Assistant Executive Director, and the Director of Assessment Services, at the London Family Court Clinic, in addition to being an adjunct clinical professor in the Department of Psychology at Western University.

[26] Dr. Harris was qualified as an expert in the areas of clinical and forensic psychology, child psychology and development, and to give opinion evidence on the children's ability to give evidence at trial and the potential impact that providing testimony may have on their mental health and well-being. This qualification sought by the applicant was not opposed by the other parties.

[27] Dr. Harris testified and provided a written report for each of the children. She stated that she was retained by the applicant to assess the ability of the children to testify and the potential impact on them of doing so.

[28] Dr. Harris completed interviews and conducted psychological testing of the children on July 23 and 27th, 2018 and interviewed Dr. Cluett (children's family doctor), E.M.T., and the family service worker, Loretta Collins. She requested information from the Thames Valley District School Board however this information was not received by the time the reports were prepared. With respect to J.R. she also received information from the Thames Valley Children's Centre.

[29] She testified that since the completion of the reports she received and reviewed the information from the School Board and that it contained no information which would cause her to change her assessments of any of the children.

[30] Dr. Harris acknowledged that she did not meet with M.A.R. as part of the assessment or discuss the particulars of the allegations with the children.

[31] Dr. Harris stated that none of the children wished to testify in court. With respect to O.R., who was 6 at the time of the assessment, Dr. Harris stated the following in her report:

"O.R. was interviewed about visits with her father. She explained that they play and spend time at the community centre. She reported to enjoy visits. For all other questions (e.g., best thing about visits, anything she would want to change about visits), O.R. announced that she was just going to answer with 'I don't know.' O.R. explained that she did not want to talk about anything 'bad' about her dad. She preferred to 'keep it inside' and 'keep it a secret' because she is worried about something bad happening, although could not be more specific."

[32] On the basis of her assessment of O.R., which included psychological testing, Dr. Harris concluded the following in her report:

"It is this writer's strongly held opinion that O.R. not be required to testify in the court process. O.R. did not have an adequate understanding of the court process or the actors involved. She was unable to appropriately utilize interview instructions, which would allow her to express when she does not know the answer, when she does not understand a question, or when the interviewer is wrong.

There are a number of developmental concerns that would affect O.R.'s ability to provide testimony. She is highly distractible and would struggle to sit on the stand, focus on a topic, and answer questions for any length of time. Her academic achievement is low, which suggests possible problems with cognitive processing, although she has not had a formal psychological assessment. Finally, O.R. reportedly has significant difficulties with self-regulation both at home and at school. O.R. expressed an unwillingness to talk about her father during the assessment for fear that she may cast him in a negative light with negative consequences ensuing. Testifying against her father would cause undue distress, likely impacting her performance on the stand but also potentially her recovery following testimony."

[33] Dr. Harris stated that it was highly unlikely that O.R. could testify without experiencing significant emotional consequences. In addition she testified that the anxiety O.R. would feel would likely persist after testifying and that she would expect behavioural problems to develop in O.R. as a result of being required to testify.

[34] With respect to J.R., who was 8 when assessed, Dr. Harris stated the following in her report:

"J.R. was interviewed about visits with his father. He explained that they play outside and go to the park. J.R. reported to enjoy visits and indicated that the only thing he would change would be to go see his dad at his dad's home. J.R. reported that he did not want to talk to anyone at court about his dad. He elaborated that when he talked about 'it,' things changed such that he lost time with his dad. As a result, he does not want to talk anymore."

[35] On the basis of her assessment of J.R., which included psychological testing, Dr. Harris concluded the following:

"It is this writer's strongly held opinion that J.R. not be required to testify in a court process. J.R. did not have an adequate understanding of the court process or the actors involved. He was unable to appropriately utilize interview instructions, which would allow him to express when he does not know the answer, when he does not understand a question, or when the interviewer is wrong.

J.R. has been diagnosed with a Receptive/Expressive Language Disorder that would significantly affect his ability to understand questions asked during cross-examination as well as formulate accurate and meaningful responses to these questions.

J.R. is an anxious child with significant developmental and behavioural challenges. Testifying against his father would cause undue distress, likely impacting his performance on the stand but also his recovery following testimony. J.R. expressed an unwillingness to talk about his father during the assessment for fear that such testimony may result in a further loss of time with his father."

[36] Dr. Harris testified that for J.R. anxiety is a significant issue, and increased the likelihood of a negative emotional impact if he was required to testify.

[37] With respect to M.R., who was 12 when the assessment was conducted, Dr. Harris concluded the following:

"M.R. is capable of testifying and participating in a trial process.

However, while M.R. may be capable, it is unlikely to be in her best interests to provide testimony in court. It is M.R.'s expressed wish that she not have to testify. Further M.R. did not have a full appreciation of the risk and benefits of testifying in court. She has some residual fears about M.A.R. and did not consider how these may be exacerbated by the court process. She did acknowledge that she might become angry with lawyers during cross-examination. M.R. may hear information during her testimony that would impact her view of her mother or other adults in her life. M.R.'s siblings have a bond with their father. If M.R.'s testimony were to result in limitations on M.A.R.'s access, this writer would be concerned about the siblings' relationship with M.R., should the younger children learn that M.R.'s testimony contributed to decisions to limit M.A.R.'s access."

[38] Dr. Harris testified that she was not as concerned with the issue of trauma resulting from M.R. testifying, and described M.R. as a self-assured and engaging adolescent who displayed a better than average understanding of the court and its process for someone her age.

[39] Her main concerns with M.R. testifying related to the potential impact on her sibling and familial relationships and the residual fear she expressed towards M.A.R.

[40] M.A.R. testified that he felt that J.R. and O.R. do have sufficient understanding to testify. He confirmed in cross-examination that J.R. experienced anxiety like him, and agreed that it would be hard on J.R. to testify but that it was necessary to "clear the air".

Analysis

[41] The applicant must establish the necessity requirement on a balance of probabilities. With respect to J.R. and O.R. the assessments conducted by Dr. Harris provide compelling evidence to support a finding of necessity. In the circumstances little would be gained by requiring O.R. and J.R.'s attendance at trial.

[42] Both children have clear loyalty conflicts. O.R. was not prepared to say anything negative about her father and stated that she would "keep it a secret" because she was worried about something "bad" happening. Similarly, J.R. was not prepared to talk negatively about his father because when he talked about "it" he lost time with his father.

[43] Further, Dr. Harris concluded that neither child had the capacity to give meaningful and responsive evidence at trial based on cognitive limitations and behavioural issues.

[44] Most importantly Dr. Harris found that both M.R. and O.R. would be at risk of emotional harm if required to testify. She concluded that it was highly unlikely that O.R. could testify without experiencing significant emotional consequences, and that the anxiety O.R. would feel as a result would likely persist after testifying. In those circumstances Dr. Harris was of the view that behavioural problems could be expected to develop in O.R. as a result of testifying.

[45] She noted that for J.R. anxiety was a significant issue and that testifying would cause him undue distress. This level of anxiety along with his significant developmental and behavioural challenges, led her to conclude not only that he was at risk of a negative emotional impact if required to testify, but that his ability to recover following testimony would be negatively impacted.

[46] I am not persuaded that the assessments are brought into question because Dr. Harris did not speak to M.A.R. or discuss the particulars of the allegations with the children. I accept Dr. Harris's testimony that because she was conducting a skills-based assessment of the children's ability to testify and its potential impact on them that it was not necessary in the circumstances.

[47] O.R. and J.R. do not wish to testify but more than fear or reluctance is required. However, evidence of severe trauma is not required and it is sufficient that there be evidence that the children will suffer emotional harm or be traumatized by the experience.

[48] I am satisfied on the evidence that there is a strong likelihood of emotional harm to both J.R. and O.R. if required to testify. The risk is significant and potentially long-lasting.

[49] I am also of the view that the risk of harm would not be mitigated by the use of testimonial aids such as a support person or animal, a screen, or the use of a remote testimony court room. The risk of emotional harm to J.R. and O.R. results from the impact of testifying itself, regardless of any accommodations that may be put in place.

[50] On the basis of these considerations the applicant has established reasonable necessity with respect to J.R. and O.R.

[51] The circumstances with respect to M.R. are markedly different than those of her younger siblings.

[52] While Dr. Harris felt that it would not be in M.R.'s best interest to testify she acknowledged that M.R. is capable of testifying and participating in the trial process.

[53] M.R. is older than her siblings, and would likely be 13 by the time this matter proceeds to trial. Dr. Harris observed that M.R. was talkative, had no issues with focusing during the assessment, and found that she had a very good understanding of the court process which was beyond what would be expected from a young person her age.

[54] Dr. Harris did state that M.R. had some residual fear of M.A.R. but could not elaborate or provide a basis for it.

[55] The issue of any residual fear M.R. may have and any fear she may have of seeing M.A.R. if required to testify can be mitigated by testimonial aids and accommodations including the use of CCTV.

[56] Her main concern for M.R. testifying was the potential impact on the sibling relationship. She felt that if M.R.'s testimony resulted in limitations on M.A.R.'s access it could adversely affect her relationship with her siblings if they became aware of it.

[57] I was not persuaded that the issue of the potential impact on the sibling relationships is the basis for a finding of necessity in this case. This concern raised by Dr. Harris appeared to be a concern with respect to children testifying generally. There was no specific evidence related to the potential impact of M.R.'s relationship with her siblings to suggest that it was a particular concern in this case.

[58] Further, the issue of the impact on the sibling and familial relationships is unfortunately always a potential consequence when children's evidence is used in custody/access and protection proceedings. However it would remain a concern regardless of whether that evidence is adduced by direct testimony or through third parties.

[59] On the evidence before the court to find that necessity is established with respect to M.R. would be to render the requirement of necessity virtually meaningless. The fact a witness is a child and does not wish or is reluctant to testify does not satisfy the requirement of necessity. Neither can it be satisfied based on a generalized concern about the impact testifying may have on sibling and familial relationships unless there is specific evidence to establish that it is a particular concern and likely to result in emotional harm to the child.

[60] The principles of fundamental justice and the responding party's right to fairness require that the standard for a finding of reasonable necessity be a meaningful one which is carefully applied to the specific circumstances of the declarant.

[61] While children must, first and foremost, be protected, to allow the introduction of hearsay evidence from children, it must be necessary. This means that there is sufficient evidence to establish on a balance of probabilities that it cannot or should not be introduced through the maker of the statement. Children's Aid Society of London Middlesex v. A.R.M., 2017 ONSC 3037. I agree with Justice George at para. 44 when he commented on the standard required to establish reasonable necessity that, "while not proof beyond a reasonable doubt, this is a high standard…".

[62] M.R. is capable of providing testimony and participating in the court process and is at minimal risk of emotional harm by doing so. The concerns with her providing direct testimony can be addressed through accommodations including the use of CCTV.

[63] On the basis of all these considerations the reasonable necessity requirement has been established so that the out-of-court statements of J.R. and O.R. may be admissible subject to a ruling on threshold reliability. With respect to the out-of-court statements of M.R., reasonable necessity has not been established.

Released: December 20, 2018

Signed: "Justice S. E. J. Paull"