ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-7542M
DATE: 20130417
BETWEEN:
GREGORY GEORGE MORRISON
Ross H. Thomson, for the Applicant
Applicant
- and -
CHARLENE ELIZABETH JOY TREMAIN
M. Jill Gamble, for the Respondent
Respondent
HEARD: April 16, 2013
REASONS FOR DECISION ON VOIR DIRE
Conlan J.
[1] During the course of the direct examination of the counselor for the children, Ms. Tabatha Birtch, by counsel for the Respondent mother, Ms. Birtch testified that the child Ashleigh told Ms. Birtch that her dad, the Applicant father, kissed her in the past in “an inappropriate way”. Further, Ms. Birtch testified that the child Isaac told Ms. Birtch that “my dad was so mean he hit me on the arm”. Third, Ms. Birtch testified that the child Luke told Ms. Birtch that “my dad is very mean” and “my dad likes to yell at me and Isaac”.
[2] The issue in this trial proper is whether the Applicant father ought to have more access with the children.
[3] Ashleigh is 10 years old, born June 11, 2002. Isaac is 9 years old, born March 12, 2004 and Luke just turned 7 years old, born April 3, 2006.
[4] The Respondent mother applies to have the alleged statements made by the children to the counselor, Ms. Birtch, admitted for the truth of the facts asserted therein.
[5] As the children are not anticipated witnesses at trial, the said evidence from Ms. Birtch is hearsay and presumptively inadmissible.
[6] The only evidence on the voir dire was that of Ms. Birtch.
[7] The Respondent mother bears the burden of demonstrating on a balance of probabilities that necessity and reliability have been established. R. v. Khelawon, [2006] S.C.R. 787.
[8] As I held in a related ruling in this same case, that earlier decision reported at 2013 ONSC 1727, although Ashleigh and Isaac are just 10 and 9 years old respectively, I am not satisfied on balance that it is necessary to admit the alleged hearsay utterances for the truth of the facts asserted therein. Given the ages of Ashleigh and Isaac and their maturity and intelligence, they could be called as witnesses at trial. I am not suggesting that should be done, however, this is not a case where I can safely assume that testifying would be damaging to them. There is no evidence in that regard, whether from Ms. Birtch or otherwise. Necessity means reasonably necessary. It does not mean absolute necessity, however, this is not a case where either Ashleigh or Isaac is unavailable to testify. Nor is it a case where I can safely conclude that either Ashleigh or Isaac cannot or should not be allowed to testify for some reason.
[9] In the circumstances, I need not assess the reliability criterion with regard to the alleged statements made by Ashleigh and Isaac to Ms. Birtch.
[10] My ruling is that the hearsay evidence of the comments made by Ashleigh and Isaac to Ms. Birtch is inadmissible as proof of the facts asserted therein. The evidence is admissible for the purpose that the statements were made by Ashleigh and Isaac to Ms. Birtch.
[11] The assessment is different with regard to the alleged statements made by Luke to Ms. Birtch. Given Luke’s very young age and the fact that he has only recently developed a vocabulary, the Applicant father does not contest the necessity criterion. I agree that it is reasonably necessary to admit the evidence of Ms. Birtch as proof of the facts asserted in the statements made to her by Luke.
[12] Further, the Applicant father does not contest the threshold reliability factor with regard to the alleged statements made by Luke to the counselor. Again, I agree. Ms. Birtch is an experienced and well-educated counselor. She testified in a clear and concise manner and was unequivocal about what Luke said to her. She was precise in relaying what she was told by Luke, verbatim. The comments by Luke to her were made just two months ago, in February 2013. In all of the circumstances, I am satisfied that the Respondent mother has proven on balance that the hearsay evidence meets the test for reliability at the admissibility stage. Ultimate reliability is a separate matter.
[13] My ruling is that the hearsay evidence of the comments made by Luke to Ms. Birtch is admissible as proof of the facts asserted therein.
Conlan J.
Released: April 17, 2013
COURT FILE NO.: 10-7542M
DATE: 20130417
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY GEORGE MORRISON
Applicant
- and -
CHARLENE ELIZABETH JOY TREMAIN
Respondent
REASONS FOR DECISION
ON VOIR DIRE
Conlan J.
Released: April 17, 2013