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.

(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.

(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: 2019-10-23

Court File No.: Sault Ste. Marie File No. 60/17

Between:

Children's Aid Society of Algoma, Applicant

— AND —

H.M.

P.W.

Respondents.

Before: Justice John Kukurin

Heard on: October 23, 2019

Ruling on Voir Dire released on: October 23, 2019

Counsel

Ms. J. Mealey — counsel for the applicant society

Ms. L. Marshall — counsel for the Respondent mother, H.M.

Mr. S. McCooeye — counsel for the respondent father, P.W.

Ms. J. Gassi Harnden — Office of the Children's Lawyer counsel for the children

KUKURIN J.:

Overview of the Motion

[1] This is a ruling on a voir dire held in a summary judgment motion hearing brought by the applicant society in a child protection application. The society seeks in the summary judgment motion:

(a) a finding under s.74(2)(b)(i) and s.74(2)(h) of the Child, Youth and Family Services Act (the CYFSA) that the two children are in need of protection;

(b) an order of deemed sole custody of the two children pursuant to s.102 CYFSA in favour of the mother; and

(c) an order for paternal access under s.104 to the two children by their father subject to certain terms and conditions, one of which is that such access always be supervised, such access to be deemed under s.102 CYFSA to be an order made under the Children's Law Reform Act (the CLRA).

The Voir Dire

[2] The voir dire is to determine the admissibility of two letters dated October 1, 2019 (exhibit 1 in the voir dire) and October 23, 2019 (exhibit 2 in the voir dire) from OCL (Office of the Children's Lawyer) counsel for the children, to the counsel for the society, the mother and the father. These letters were tendered to the court to set out the views and wishes of the children. Unfortunately, these letters do more than set out views and wishes and counsel for the parties could not agree on what parts of these letters could be admitted on consent, and what parts could not. Hence the court embarked on a voir dire.

[3] At the outset, the parties could not agree whether the voir dire would be a blended one. By "blended" is meant that whatever evidence was introduced in the voir dire, and ruled admissible by the court, would also be evidence at the summary judgment motion hearing. In short, there would be no need to repeat this evidence as summary judgment motion hearing evidence. This evidence and any ruling on it would not be applied to the trial itself, if a trial was subsequently held. I was not dealing with a trial.

Why This Evidence is Needed

[4] The obvious question is why this evidence is needed on the summary judgment motion at all. The answer is that views and wishes of the children, if ascertainable, are a mandatory consideration under the best interests test. It says:

S.74(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,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

[5] The best interests of these children is the test that applies to decisions on disposition and access, both of which are claims made in the summary judgment motion before me. Therefore, if the views and preferences of these two children are available and ascertainable, they should be before the court.

The State of Mind Exception to Hearsay

[6] There is case law that essentially says that, short of consent from all parties, views and wishes of the child should not be permitted in evidence from the mouth of their legal representative. These would ostensibly be hearsay in nature. However, OCL counsel did not seek to introduce these 'views and wishes' of the children for hearsay purposes. Rather, the intention was to show their state of mind when these statements were made.

[7] "State of mind" is a long standing exception to the rule against hearsay. If the out of court statement of a child is admitted to show the state of mind of the child, its admission into evidence need not be justified on the principled approach to admission of hearsay, which requires that the person seeking admittance show both necessity and threshold reliability of the statement in question. However, as Harper J. points out in Ward v. Swan (at paragraph 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.'"

[8] Justice Harper uses the following example to illustrate the distinction (at paragraph 6):

"If a child makes a statement that 'I am afraid of my dad because when he gets mad he punches holes in the wall,' the statement may be admitted to show the child's present state of mind as an exception to the hearsay rule but not for the proof of the truth of the child's statement that the child's dad punches holes in the wall when he gets mad."

Requirements for State of Mind Exception

[9] The five basic requirements for the state of mind exception are set out by Professor Rollie Thompson in an article entitled "Hearsay and Exceptions to the Hearsay Rule" (Niman, H., Evidence in Family Law). These are:

(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;

(v) the statement must not be made under circumstances of suspicion.

Application to Exhibit 2

[10] With respect to Voir Dire Exhibit 2, and to the statements of the children made to Ms. (now the Honourable Justice) H. Mendes, who was the former OCL counsel for these two children, and who interviewed them four times, their statements do not have any temporal reference. When she spoke with them is not available to their present OCL counsel. Accordingly, any reference to views and wishes of the children that comes from the former OCL counsel, or her notes, are not admissible in this motion for summary judgment as there is no way to know when the state of mind refers to.

[11] However, present OCL counsel met with them July 15, 2019 and what they advised her on that date is admissible as expressing their state of mind with the following exception. They indicated that they feel "scared" when he yells. This offends against requirement (iii) above; it describes the cause of this being scared.

[12] Accordingly, from exhibit 2, the following are admitted as indicating the state of mind of the children as of July 15, 2019:

• they do want to see their father
• they are not safe if no one is watching
• they want to be able to hug and kiss him

Application to Exhibit 1

[13] With respect to Voir Dire Exhibit 1, the information in this came from an interview that OCL counsel had with the children on October 21, 2019. In terms of views and wishes of these children at that time, and in accordance with the 'state of mind' requirements, I find the following to be admissible:

• they were unsure of how their father was doing
• they felt the [access] phone calls were boring
• they want to see their father in person
• they want to have paternal access where people are watching
• they don't like it when people are watching

Ruling

[14] The ruling I make is with respect to the admission of evidence of the state of mind of the children, in particular as to their views and preferences, but limited to the summary judgment motion in which this voir dire took place. The letters themselves (Exhibits 1 and 2 in the voir dire) will be sealed by the court clerk so that they are not mis-identified as trial evidence if and when a trial should be held.

Released: October 23, 2019

Justice John Kukurin

Footnotes

[1] 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 (my emphasis)

[2] Ward v. Swan, [2009] O.J. No. 1834, 71 R.F.L. (6th) 378, 95 O.R. (3d) 475, 79 C.P.C. (6th) 391, 2009 CarswellOnt 2435 (Harper Ont SCJ)

[3] See also R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 for a discussion of "state of mind" exception to the hearsay rule