WARNING The court hearing this matter directs that the following notice should 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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 09 30 COURT FILE No.: Kenora FO-22-00000017-0000

BETWEEN:

Kenora-Rainy River Districts Child and Family Services Applicant,

— AND —

B.B. Respondent

Before: Justice E J Baxter

Heard on: June 29, August 9, August 16, September 14, 2023 Reasons on Voir Dire (Khan application) released on: September 30, 2023

Counsel: Joanne Clouston............................................................ counsel for the applicant society Peter Howie............................................................................ counsel for the respondent(s) David Elliott.......................................... counsel for the Office of the Children’s Lawyer, legal representative for the children

Baxter J.:

Endorsement

[1] In this matter, the society seeks to have certain utterances made by the subject children to various individuals admitted into evidence. The following are my reasons for finding certain evidence admissible in this application. The blended voir dire was heard on this issue on the above noted dates, with further dates to be held to continue the trial proper on the issues of protection and extended society care for the 2 young children, who are the subject of this matter.

[2] The society commenced a protection application on June 14, 2022. On June 15, 2022, I ordered on a temporary, without prejudice basis, the children be placed in the temporary care and custody of the society.

[3] The children, I.B. (May, 2016) and A.P. (September, 2018), were removed to a place of safety and placed with their maternal grandfather, T.B. The children were removed from that kin placement and placed with their maternal grandmother, P.M., on or about April 18, 2023. They have been there since.

[4] The society contends the mother of the children is placing them at risk of serious emotional and physical harm considering her inability to care for them given her ongoing drug/substance abuse issues.

[5] Children’s counsel supports the society’s position.

[6] The mother asks the court to require the children to testify and be subject to cross-examination. With respect to the issues for trial, the mother asks the society’s application be dismissed, or that a supervision order be made.

[7] Based on the materials submitted, jurisprudence relied upon, and the submissions of counsel, I am satisfied the onus of the society that certain evidence be admitted pursuant to the principles set out in R. v. Khan, has been met. The requirements for threshold reliability and necessity have been fulfilled in relation to statements both children made to various society staff.

[8] The society relied on several affidavits in the voir dire in their request to rely upon their contents. The first is that of Melissa Normand, a child protection worker assigned to the family between February and September 2022. Her affidavit was made an exhibit for the trial and voir dire, but two paragraphs, 34 and 37(a) were noted to contain hearsay that will be admitted only for investigative narrative and not for the truth of their content. The remainder of this affidavit did not appear to be controversial to counsel or the court.

[9] Child protection worker, Leanne Petkau, swore two affidavits on May 26, 2023, and they were made exhibits to the voir dire subject to admissibility. Ms. Petkau noted in her first affidavit, trial exhibit 6, that on April 21, 2023, the child, I.B., told her about seeing needles in the home; that her mother and another male use the needles in their arms. She saw a video of her mother using a needle in her arm. I.B. noticed when mom and her then boyfriend used needles, their behaviours changed. She expressed concerns about the lack of food in the house and that she is scared when her mother and her boyfriend are mean to one another. They punch each other and did not wake up in time to take I.B. to school, and she was late. She and her sister, A.P. stayed in their room and play when they are scared.

[10] On May 3, 2023, I.B. told Ms. Petkau, during an interview at the society’s offices, about a trip she took with her mother, grandfather, and mother’s boyfriend to Winnipeg during which the mother appeared to have had an overdose in a gas station washroom that I.B. witnessed. She described a black bag her mother carries that contains her needles. She was afraid her mother was dead.

[11] Again I.B. described the punching between her mother and her then boyfriend. A.P. and I.B. said they never see their mother use the needles, but their aunt and the mother’s boyfriend use needles, and they saw it on a video. I.B. expressed she felt like A.P. is favoured over her.

[12] In Ms. Petkau’s second affidavit, trial exhibit 7, she noted she was present during an interview on May 12, 2023, with the children with their counsel, Mr. Elliott. A.P. said she enjoys living with her grandmother, P.M. She said she did want to live with her mother but when she uses needles with her boyfriend, it makes her “sad” to see the video. She said if her mom and boyfriend used needles and fought, she would call her grandmother.

[13] During that interview, I.B. told Mr. Elliott that she knows her mother lies when she denies having needles. She pointed to her forearm area and said that is where her mother puts the needles in her own arm. She said she does not like the needles, and she is afraid of them. She does not understand why her mother uses needles, noting they get all “silly” after they use them and don’t know where she and her sister are. She described her mother and boyfriend fall down “fast” after using the needles, which scared her.

[14] I.B. described seeing the boyfriend hit her mother in the face, and it scared her, so she and her sister stayed in their room until the fighting was done. They could not sleep because the fighting was too loud. She corrected Mr. Elliott about who had fallen asleep clarifying it was her mother who fell asleep on top of the boyfriend, and I.B. could not wake her up, and she was late for school.

[15] I.B. then described the trip to Winnipeg and the alleged overdose situation as well as the information about the lack of food in her mother’s house and that her mother did not buy any as she had no money. She also described her mother and boyfriend drinking alcohol and that her mother may have been drunk when she picked I.B. from school with her boyfriend.

[16] I.B. also told Mr. Elliott that the boyfriend suffered seizures and that he bit his tongue once during a seizure, and there was “lots of blood”.

[17] Child protection worker, Jordan St. Germain, swore an affidavit on May 16, 2023. It was made an exhibit at the voir dire subject to admissibility. Ms. St. Germain noted, at paragraph 23(f) that I.B. was upset about going to her grandfather’s home because he yells, and the house is “stinky”.

[18] On March 22, 2023, A.P. told her that her mother did something “bad”, but she did not know what. She also disclosed she and her sister found needles, and their mother did nothing about it. A.P. also told Ms. St. Germain they were hungry at her mother’s, that she does not like her mother’s boyfriend.

[19] I.B. was also interviewed that day, and she described adult conflict, her sore teeth for which her mother forgot to make an appointment for her, the lack of food in her mother’s house, and that the boyfriend had people over, which scared her. She also said the police were there often.

[20] On April 26, 2023, and noted in paragraph 35 of her affidavit, Ms. St. Germain described a spontaneous utterance made by I.B. about finding a needle at her mother’s. She said her aunt uses needles, but she had not seen anyone use needles. When her mother and aunt go into the bedroom and close the door, she knows they are using needles because she walked in and saw needles.

[21] I.B. said she only feels safe at her grandmother’s home. She does not feel safe at her mother’s, but she could not explain why she felt unsafe.

[22] Both children stated they did not want to see or talk to their grandfather, because I.B. was afraid he will be mean to her.

[23] Ms. St. Germain was present during the May 3, 2023, interview with the children and Ms. Petkau. She heard the description of the trip to Winnipeg where the mother apparently overdosed.

[24] P.M., the children’s grandmother, provided an affidavit dated June 22, 2023, wherein she outlined two situations in paragraphs 7 and 8 of her affidavit involving I.B. having been accidentally exposed to bear spray and suffered burns on her skin. She also recounted an incident where I.B. said she was allegedly thrown onto a bed by her father, M.P. and hit her head. The admissibility of the contents of these 2 paragraphs will be discussed further below.

[25] All of the witnesses noted above testified at the hearing and were cross examined on their affidavits.

[26] In reviewing the evidence tendered in the voir dire, I have examined the jurisprudence filed by counsel in support of their positions. The hearsay evidence contained in the voir dire affidavits is inadmissible unless and until it can be admitted under an exception to the hearsay rule.

[27] My analysis is assisted by the following cases: R. v. Khan, [1990] 2 S.C.R. 531, R. v. Khelawon, 2006 SCC 57, R. v. Bradshaw, 2017 SCC 35, Valoris v. J.W., C.R. & Muskeg Lake Cree Nation, 2022 ONSC 349, Catholic Children’s Aid Society of Toronto v. C.G. and D.S., 2018 ONCJ 193, Chatham-Kent Integrated Children’s Services v. C.L., R.F. & J.S., 2004 ONCJ 375, The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852, Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, Children’s Aid Society of Algoma (Elliot Lake) v. P.C., 2017 ONCJ 898, Children’s Aid Society, Region of Halton v. J.O., G.O. Y.A., 2013 ONCJ 191, Children’s Aid Society of Ottawa-Carleton v. L.L., and Kenora Rainy River Districts Child and Family Services v. R.M., L.M., J.H. & Wabaseemoong First Nation, unreported or cite not available.

State of Mind Exception

[28] Statements made out of court that demonstrate a declarant’s “present intentions” or state of mind is a recognized exception to the hearsay rule. Where a declarant makes statements that show their emotion, intent, motive, or plan, these can be admitted, provided the statements are not about past events and not used to get in the back door what is not allowed through the front. (see Valoris, supra)

[29] Of the hearsay statements set out in the affidavits, I have noted several of the statements made by the children meet the hearsay exception going to their state of mind. Examples of such comments are summarized below:

[30] The St. Germain affidavit at paragraph 29(d), A.P. stated she did not “like” her mother’s then boyfriend. At paragraph 35(c) I.B. said she felt safe at her grandmother’s and unsafe at her mother’s. At subparagraph (d), I.B. stated she did not want to talk to or see her grandfather, T.B., as she was “scared” he would be “mean” to her. At paragraph 38(d), I.B. “felt and thought” her mother was dead (of an overdose).

[31] In the Petkau affidavit (exhibit 6), I.B. made comments that demonstrate she was afraid. I refer to paragraphs 3(f) and (h), 4(a)(iv), and (x).

[32] In the Petkau affidavit (exhibit 7), I refer to paragraphs 3(a), (f), (g) (h), 4(e), (k), and (l) to demonstrate I.B.’s preference to stay with P.M., her wish to live with her mother, and her fear of what she has observed.

[33] These statements meet the criteria for demonstrating the state of mind of I.B. in that the statements express views and preferences about where she wants to live, her fears and worries, awareness of adult conflict around her and how she feels about certain people in her life.

[34] The statements were made to society workers. Some statements were spontaneous and noted by workers. I have no concerns that the workers or the children were motivated to lie. The statements were made to workers and are firsthand hearsay reported by the workers in their affidavits. The workers were cross-examined on their affidavits, their qualifications and their note taking practises. (see N.N. & D.G., supra)

Voice of the Children Memo

[35] The children’s lawyer, Mr. Elliott, submitted a voice of the children memo dated June 22, 2023. He outlined and summarized 5 interviews he had with the children on October 19, 2022, November 7, 2022, January 11, 2023, May 12, 2023, and June 21, 2023. He noted he met with the children independently and in the presence of their kin caregivers in person and over the phone.

[36] Counsel for the mother objected to the admission of the memo on the grounds that Mr. Elliott is essentially making himself a witness, which conflicts with his role as counsel. I agree.

[37] I note that s. 74(3) of the CYFSA requires the court to consider the views and preferences of the children. Because the children are under the age of 12, the CYFSA s. 79(5) precludes them from attending court unless it can be shown they understand the proceedings and will not suffer emotional harm.

[38] The memo itself failed to provide sufficient detail in terms of the dates, locations, and context for the statements of the children. The content of the memo relied upon questions posed by counsel to the children and their answers. The interviews were not recorded. As a result, there is no evidence whether counsel’s notes are contemporaneous and/or the questions and answers were verbatim. However, the content is consistent with the information sworn to by the other affiants, particularly in terms of the children’s expressed preference to remain with their grandmother, and that they are unsure of living with their mother because they are afraid of the needles.

[39] In this case, given the consistency of the summary of the information set out in the memo and between the society staff, the issue can be overcome. This may not be the circumstance in future matters.

[40] Moving forward, it is recommended that the OCL counsel should have another party present during the interview - either an assistant or another professional - to witness or conduct the interview with the children in the presence of the OCL. This will prevent counsel for the children from putting themselves in the position of becoming a witness in the proceedings for their evidence to be admitted and thereby ensuring OCL counsel discharges its mandate under the CYFSA.

[41] I strongly recommended the evidence contained in a voice of the child memo is guided by the courts’ recommendations with respect to the questioning of children and ascertaining a child’s level of maturity, comprehension etc. (see P.C. and Volaris supra, for example). As counsel, OCL could see to it the questions asked are not leading and the note taking or recording is accurate, thereby allowing the OCL to properly advocate the children’s views and preferences.

[42] The P.C. decision noted above predates the amendments to the CYFSA. In that decision, which was a status review, the court ultimately determined the memo would be admitted under the state of mind exception to the hearsay rule where the statements indicate the children’s views and preferences as to with whom they wish to live.

[43] Despite the obvious deficiencies in the memo, I admit the memo in terms of the recorded preferences of the children to live with their grandmother, under the state of mind exception to the hearsay rule. The weight of the memo will be determined after all evidence had been heard in the trial proper.

Necessity

[44] To determine if the court will admit otherwise inadmissible hearsay evidence in the form of out of court statements made by children, the principled exception approach taken in Khan (supra), is the test courts follow. The admission of the evidence must be found to be reasonably necessary and that it meets the threshold reliability requirement.

[45] In more recent court decisions, there is a reluctance in child protection matters to always require expert evidence to support the notion that young children will suffer emotional harm if they are required to testify and be cross-examined in court. In this case, the children are just 7 and 5 years of age.

[46] The child protection courts are directed under the legislation to ensure children are protected and ensure their best interests are kept front of mind. Children who have been removed from their home because of risk of or actual harms may have suffered trauma or emotional harm already. Exposing children to the highly emotional and adversarial litigation process present in most child protection matters may often not be in their best interests. Protecting children from such conflict is in their best interests. A level of flexibility is required, depending on the circumstances of each case.

[47] With respect to the children here, I am satisfied the test for necessity has been met. Both children are young – ages 7 and 5. I find having them testify and face cross-examination by their mother’s counsel would tend to cause them emotional harm. The children have been separated from their parents since June 14, 2022, with supervised access being the only contact they have had. The children have been placed in 2 kin placements since their apprehension. Their lives have been uprooted, and society workers have made note of the children expressing certain fears and worries as noted above. I am not satisfied having the children testify is in their best interests.

Threshold Reliability

[48] With respect to the grandmother’s affidavit, I have determined paragraphs 7 and 8 are not admissible and shall not be relied upon in this matter. The grandmother is not trained to interview children. The utterances were not recorded or noted. The grandmother may have a vested interest in keeping the children. The grandmother and the mother’s relationship is strained, with them being essentially estranged from one another. The court cannot be sure of the accuracy of the statements the grandmother reported. The children were extremely young at the time of the alleged incidents described in the affidavit. I am not satisfied the statements in the two paragraphs meet the requirements for threshold reliability.

[49] With respect to other of the children’s comments that I have determined meet the threshold reliability requirement, I refer to various paragraphs in the above-noted affidavits:

[50] In the St. Germain affidavit, I find the children’s comments at paragraphs 23(f), 29(a), (b), (d) to (k) admissible regarding the events the children witnessed and described to workers and noted by Ms. St. Germaine.

[51] I am not admitting paragraph 29(c) as the comment made by A.P. has no probative value and is not relevant given A.P. stated she did not know what the “bad things” were.

[52] I am admitting the contents of paragraph 35(b) as the children made comments about their observing needles and the adults using them.

[53] Paragraph 38 is admitted for the observations I.B. made regarding the trip to Winnipeg where the mother may have overdosed, and other occasions regarding the behaviours of the mother and her then boyfriend.

[54] With respect to the Petkau affidavit (exhibit #6), I am admitting the statements at paragraphs 3 and 4.

[55] In the Petkau affidavit (exhibit #7), I am admitting the remainder of the affidavit with regard to the statements made by the children except the comment at paragraph 6(q) as it appears to be a situation I.B. heard from someone and is not something she observed first hand with respect to the mother’s then boyfriend being stranded on the ice road after a seizure. In addition, I find it adds nothing of value to the issues to be determined in this case.

[56] Here, the children made various statements to different workers. At times more than one worker was present when the children made their statements. The workers are relatively experienced, (but not as experienced as some) and have taken training in interviewing children. Some of the statements made by the children were spontaneous and noted by the workers. There was no questioning or prompting on the occasions when the children made the spontaneous utterances.

[57] The workers are required to make notes contemporaneously or within 24 hours of the interaction with the children. One worker did say she may have not always complied with the notes being uploaded within 24 hours, but for the most part she followed this requirement.

[58] There was no evidence to indicate the workers or the children had a motive to fabricate their evidence. There is some corroboration and consistency with certain of the statements given more than one worker and even the children’s lawyer were present during some of the interviews with them.

[59] Statements or utterances made by the children to workers before their placement with the grandmother tend to be reliable as the children were not able to be coached or influenced by the grandmother.

[60] Both children made separate comments to workers about needles, lack of food, adult conflict, and their preferences. While A.P. is younger, her comments were noted, and she was able to express herself and be understood.

[61] I.B. was able to communicate information about the black case in which her mother carries needles. She described how her mother and others used and acted after using needles. I.B. also corrected information a worker and the children’s lawyer discussed with her.

[62] The workers’ affidavits were balanced. They made note of both positive and negative observations and comments of the parents during visits. The affidavits appear to be objective in the descriptions of their interactions with the family.

[63] I do not see any manipulation or reliance on leading questions in the workers’ affidavits. There were private interviews conducted. It does not appear the parents were present or “hovering” during the interactions. It appeared the children were open and comfortable with the workers.

[64] I must acknowledge certain deficiencies in the lack of evidence tendered regarding the children’s level of intelligence, comprehension, maturity, any cognitive or develop­mental delays, or other factors that would tend to reduce the threshold reliability of their statements.

[65] Further, I do note some of the evidence of the workers in the 3 subject affidavits do not reproduce verbatim the questions asked of the children, but they do use quotations for many of the statements they noted the children made to them. They do note the context of the statements, when and where they were made, and they appear to be objectively recorded.

[66] In this case there was no audio or video recordings made of the interviews with the children. The statements were not sworn or affirmed. The children’s demeanour cannot be assessed.

[67] The ultimate issues of weight, credibility and reliability are to be left until the trial concludes and I have had the opportunity to review the evidence, submissions and law regarding the protection findings and the question of extended society care.

[68] Order accordingly.

Released: September 30, 2023 Signed: Justice EJ Baxter