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.
Ontario Court of Justice
Citation: Children’s Aid Society of Algoma v. F.M., 2021 ONCJ 37 Date: January 15, 2021 Court File No.: Sault Ste.Marie File No. 231/14 - 001
Between:
Children’s Aid Society of Algoma, Applicant,
— and —
F.M., M.K., C.K. (Added Party), Respondents.
Before: Justice John Kukurin Heard on: January 14, 2021 Reasons for Judgment released on: January 15, 2021
Counsel: Jennifer Mealey, counsel for the applicant society Shad McCooeye, counsel for the respondent mother F.M. Jasmine Gassi Harnden, counsel for the respondent paternal grandmother C.K. M.K., not present, although duly served Lindsay Marshall, Office of the Children’s Lawyer legal representative for the child
KUKURIN J.:
[1] This is a decision on a motion brought by the Respondent mother (at Tab 11, Vol 6) for an order to strike any affidavit information or other information being proffered that is not admissible at trial, for the purpose of trial, including
(a) all society affidavits, including the trial affidavits of Jennifer Walker sworn March 13, 2020 and of Elise Noyek sworn March 12, 2020
(b) the evidence of the respondent paternal grandmother, including the trial affidavit of C.K. sworn March 12, 2020
[2] To be fair, the mother distils her claim to strike to specified numbered paragraphs in the affidavits of all three affiants. For some paragraphs, the reason why they are objectionable and should be struck is that they offend the rule against hearsay. For others, the reason is that they are opinions from a non expert.
[3] There are other complaints of the mother which she claims are justifications for striking other information in the evidence of the society and of the maternal grandmother. These relate to certain identified exhibits attached to the trial affidavits of Ms. Walker and Ms. K. The reason why is only identified as their being “inadmissible documentary evidence”.
Background Information
[4] Some background and some later developments are necessary to appreciate these motion claims. The motion was returnable March 4, 2020. At that time, this status review proceeding, which was started in November 2018, was 16 months old and was scheduled for a trial of nine days duration to start April 15, 2020. There had been an order made for all (with one exception) trial evidence in chief to be by way of trial affidavits. These were to be served at different times prior to the start of the trial. They were, in fact, prepared, sworn and served in March 2020. Only once they were served was the mother made aware that some of the content of some affidavits was objectionable. Thus she brought a motion to strike the parts that she believed were objectionable as trial evidence.
[5] The later developments are also of some relevance to this motion.
[6] Firstly, the trial did not take place in April 2020. This was primarily because of the intervening COVID pandemic, but may have resulted from other reasons as well.
[7] Secondly, the March trial affidavits of the society and the paternal grandmother were replaced by other revised trial affidavits sworn in or around October 2020. The society states it voluntarily removed some of the materials from its witness’ affidavits, although somewhat reluctantly, as it did not fully agree that parts it removed were not trial worthy. The paternal grandmother was self represented in March, but by October she had retained counsel who prepared a new trial affidavit that contained less objectionable content. This new revised trial affidavit had not come to the attention of counsel for the mother because of some email snafu, but it is now being re-served on him. He did receive the revised trial affidavits from the society.
[8] Thirdly, the trial has now been re-scheduled to start February 2021. The affidavits, some of the contents of which the mother wished to strike, are no longer in play. They have been replaced by somewhat more acceptable (to the mother) revised affidavits. The mother argued that she had requested that the society advise what parts it was removing or amending from its March affidavits. It did not do so. This, argued the mother, makes it difficult for her to locate what she feels is still, in her view, not up to snuff as trial evidence. And in fact, she (or her counsel) declined to scrutinize and identify for the court such objectionable parts of the revised affidavits on the hearing of this motion. The society says no such request was made specifically to the society. The mother claims otherwise.
[9] The upshot of this motion is that almost nothing happened. The aim was to identify what, parts, if any, of the evidence to be tendered at trial was objectionable, and for what reasons. If some were found to offend against admissibility, it could be excised well prior to trial. This would avoid dealing with evidentiary objections at trial and help keep the trial within the allotted trial dates. I agree that the motivation was reasonable and, if it did nothing else, it identified what and why certain parts of the evidence was going to generate an admissibility problem at trial.
[10] In the end result, the mother did and did not achieve her goal with this motion. She did not parse each paragraph in the revised affidavits of the society for objectionability. She had undertaken this task with respect to the trial affidavits sworn in March and evidently decided that, without the society somehow indicating what paragraphs from those affidavits had changed, she was not about to undertake what was likely going to be a labour intensive review of the October affidavits. With respect to the paternal grandmother’s revised trial affidavit, also sworn in October, it was not available to the mother to vet at all for objectionable content (the fault for which was neither agreed upon nor decided) and so she has not done so as yet.
[11] This places the court in the position of not knowing what parts of the new revised trial affidavits the mother wishes to have struck.
[12] Ultimately, the motion of the mother must be dismissed.
[13] However, the mother did achieve part of her goal by bringing this motion. It was not by way of a direct judicial order striking certain paragraph. What transpired was that the society revised its witnesses’ trial affidavits and removed some of the material that the mother claimed was not appropriate trial evidence. To that extent, the mother did achieve some success indirectly.
[14] In reviewing the society’s earlier affidavits, I noted some clear examples of hearsay evidence which I cannot imagine that the society would argue was admissible hearsay. The society should have been more diligent in what it included in its affidavit evidence in chief. It knows what is and is not admissible or permitted as trial evidence. Its including in its March evidence what was excluded in its October evidence is an admission that it did initially have objectionable material in its trial affidavits.
Cost of the Motion
[15] The mother ask for costs. The general rule is that there is a presumption that a successful party is entitled to costs. This presumption does not apply in a child protection case. The court has a discretion to award costs against a successful party who has behaved unreasonably and even order such party to pay the unsuccessful party’s costs or any part of it. [See Family Law Subrules 24(1), (2) and (4)].
[16] On the face of this motion, there is no question that the mother was unsuccessful. The society was successful. However, its conduct in preparation of trial affidavits with some objectionable and almost certainly inadmissible content was unreasonable. That it may have attenuated such unreasonableness by substituting its revised trial affidavits is to its credit, but does not completely eradicate the unreasonableness of its initial conduct,
[17] For this reason, and to send a message to the society in this case, and to all litigants in similar circumstances, I award costs payable by the society to the mother in the amount of one dollar. Parties should be diligent in what they proffer as testimony in their litigation. The primary objective of the procedural rules is to enable the court to deal with case justly [See Rule 2(2)]. Dealing with cases justly includes ensuring the procedure is fair to all parties and saving time and expense. [See Rule 2(3)]. All parties and their lawyers are required to help the court to achieve the primary objective [See Rule 2(4)]. The court is said to be a gatekeeper of, among other things, the evidence it permits and admits in a case. While it must rule on some evidence where there is a legitimate issue of admissibility, it should not have to waste time on ruling on admissibility of evidence where there is no legitimate issue.
[18] For the Reasons above, there will be an order as follows
The motion of the mother at Tab 11, volume 6 of the Continuing Record is dismissed.
The Applicant Children’s Aid Society of Algoma shall pay to the mother as costs of this motion the sum of one dollar.
There will be no order as to costs of this motion to or by any other party in this proceeding or to or by the Office of the Children’s Lawyer, legal representative of the child.
Released: January 15, 2021
Signed: “Justice John Kukurin”