ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC 10-696
DATE: 20120620
BETWEEN:
THE CHILDREN’S AID SOCIETY OF SIMCOE COUNTY Applicant – and – T.W. Respondent
D. Friend and J. Wallace, for the Applicant
M. Prost, for the Respondent
HEARD: May 28, 29, 30, 31, June 1, June 4, 5, 6 and 7, 2012
HEALEY J.
WARNING This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows: 45(8) 76(11) 85(3) PROHIBITION: IDENTIFYING CHILDREN – 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. PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society. OFFENCES – A person who contravenes subsection 45(8) or 76(11) (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.
RULING ON MOTION
[ 1 ] This was a mid-trial motion by the Children’s Aid Society of Simcoe County (the “Society”) for a ruling on the admissibility of documents emanating from a file opened by the Children’s Aid Society of Toronto, specifically:
A letter from the Children’s Aid Society of Toronto to the Children’s Aid Society of the County of Simcoe that provided the file history of the mother’s first child, R.D., in relation to a protection proceeding that occurred in that jurisdiction (the “Toronto proceeding”);
A Service Plan Recording covering the period from August 6, 2010 to February 8, 2010;
A Family Risk Re-Assessment dated February 3, 2010;
A Family and Child Strengths & Needs Assessment dated February 8, 2010;
A Statement of Agreed Facts dated January, 2009.
[ 2 ] An oral ruling was made that only items 2, 3, and 4 outlined above could be properly admitted into evidence, with written reasons to follow.
[ 3 ] This was the trial of two applications brought pursuant to section 37 of the Child and Family Services Act , R.S.O., c. C.11, (the “ Act ”) in respect of two of R.D.’s half-siblings, born in 2010 and 2011.
[ 4 ] This court was advised that none of the family service workers involved in R.D.’s case or the Toronto proceeding were available to testify during the trial with respect to the documents in question.
[ 5 ] Notice had been given by the Society to the Respondent of its intention to introduce these documents as business records pursuant to section 35 of the Ontario Evidence Act , R.S.O. 1990, c. E.23 .
[ 6 ] Items numbered 1 and 5 were not allowed to be submitted into evidence because they contain hearsay of a significantly prejudicial nature to the Respondent in this proceeding, which prejudice could not be outweighed by its probative value. Although evidence of past conduct toward a child may be taken into account by the court pursuant to section 50 of the Act , in this case a final order had been made in the Toronto proceeding in 2009. The court found R.D. to be in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii) of the Act , and placed him in the custody of his step-mother. The particulars of the Toronto Society’s involvement with the Respondent in the course of the Toronto proceeding were summarized in item 1. The letter contains a great deal of information provided by anonymous callers. Given the finding made in the Toronto proceeding, I deemed it unnecessary and unhelpful to have this untested letter placed into evidence at this trial.
[ 7 ] Similarly, the Agreed Statement of Fact, while forming part of the basis upon which the court made its ruling in 2009, was not signed by the Respondent. She did not participate in that proceeding and was noted in default. It is also not a business record.
[ 8 ] The Society was allowed to use the information in both documents 1 and 5 for the purpose of cross-examining the Respondent.
[ 9 ] Documents 2, 3, and 4 all meet the criteria for admissibility as business records as set out by the leading Ontario authority on point, Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 1977 1184 (ON SC) , 15 O.R. (2d) 750 (S.C.):
(1) the record was made in the usual and ordinary course of business and it was in the usual and ordinary course of business to make such a writing or record. In this case the documents are all pre-printed forms bearing the logo of the Children's Aid Society of Toronto, and are all documents commonly seen by those familiar with the field of child protection;
(2) the record must have been made contemporaneously with the transaction recorded, or within a reasonable time thereafter. The documents appear to record observations and assessments of events as they existed on the date of document’s creation;
(3) the documents contain only records of facts. The documents in question record only facts and observations made by the assigned caseworker; and
(4) the maker of the record must be acting under business duty and the informant must be acting under business duty or the informant’s statement must be otherwise admissible under the hearsay rule of exceptions. In this case the documents on their face indicate that they have been completed by the caseworker assigned to the file, whose signature also clearly appears on each of the documents. This court did not hear evidence that the caseworker was under a duty as part of her job to complete such forms; such an obligation can be inferred from the nature of the documents.
HEALEY J.
Date: June 20, 2012