CITATION: The Children’s Aid Society of Ottawa v. J.B. and H.H., 2016 ONSC 2757
COURT FILE NO.: FC-98-685
DATE: 2016/05/05
SUPERIOR COURT OF JUSTICE - ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of The Children’s Aid Society of Ottawa v. J.B. and H.H.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Ottawa, Applicant
AND
J.B. and H.H., Respondents
BEFORE: Madam Justice Mackinnon
COUNSEL: Lara Malashenko, for the Applicant Lisa Sharp, for the Respondent J.B. Wendy Rogers, for the Respondent H.H. Malina Feeley, for the Children
HEARD: April 7 and 8, 2016
ENDORSEMENT
[1] The motion before the court is brought by the Society seeking summary judgment granting Crown wardship for the purposes of adoption for the children A.B. (DOB: […]/2005) and E.B-H. (DOB: […]/2010).
[2] The Respondent mother opposes the motion and asks that the case go forward to trial at which time she seeks the return of the children to her care and custody. The Respondent father of E.B-H. has confirmed that “his intentions are to sign away his rights to the child”. The father of A.B. has no contact with A.B .On February 2, 2016, an order was made dispensing with service on him.
[3] The children were apprehended on May 12, 2014. They remained in the temporary care and custody of the Society until June 27, 2014 when they were returned to the mother under an interim supervision order. On October 27, 2014, the children were found in need of protection and placed with their mother subject to the supervision of the Society for a period of three (3) months on certain terms and conditions.
[4] On December 12, 2014, the children were apprehended from the care of their mother, based on allegations of several breaches of the Supervision Order. They remained in care and on March 31, 2015 a Parental Capacity Assessment was ordered. Dr. Worenklein completed the assessment in September 2015. His recommendation was Crown wardship for the purpose of adoption.
[5] There are two primary aspects to the mother’s defence of the summary judgment motion. The first is that the Society has presented an evidentiary record that consists largely of hearsay, without attempting to establish that the proffered hearsay meets the threshold test of necessity and reliability. She submits that the court could either decide the motion without reference to inadmissible hearsay, or, the court rule that a trial is necessary so that the mother is provided a fair opportunity to cross examine the first hand declarants. The second is that she has presented evidence of sufficient facts to show she has an arguable case that her plan is in the children’s best interests, and that therefore the Society has not met its onus to establish that there is no genuine issue for trial.
The Hearsay Issue
[6] The Society made a number of submissions in support of its reliance on hearsay evidence. It relied on Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak]:
[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding. (Emphasis added)
[7] I do not accept that the Supreme Court of Canada intended by this that the rules of evidence were no longer applicable to motions for summary judgment.
[8] The Society also submitted that the Family Law Rules, O. Reg. 114/99, rr. 14(17)-(19) and 16(5) [FLRs] permit the use of hearsay on a motion for summary judgment. These rules provide as follows:
14(17) Evidence on a motion may be given by any one or more of the following methods:
An affidavit or other admissible evidence in writing.
A transcript of the questions and answers on a questioning under rule 20.
With the court’s permission, oral evidence.
(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
(19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
16(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
[9] The Society referred to three decisions, which suggest that these rules are permissive of the use of hearsay on motions for summary judgment. In Halton Children’s Aid Society v. K.C.L., 2014 ONCJ 168, the court held:
[22] Although the court can rely on hearsay, subrule16 (5) provides a stricter rule with respect to hearsay than subrule 14 (19) motions, namely that if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, [if] any, that the court deems appropriate.
[10] In addition in Chatham-Kent Children’s Services v. A.K., 2014 ONCJ 224 [A.K.], the court held:
While the “MacKenzie test” sets out a gold standard, it is also clear that the court not only retains discretion under rule 16(5) to rely on hearsay evidence in summary judgment motions when a fact is not in dispute but also has discretion whether or not to draw conclusions unfavourable to a party regarding hearsay evidence if the facts in question are in dispute. I would also state that rule 16(5) does not talk about hearsay evidence being inadmissible per se. Rather, the question for the court is whether or not to draw conclusions that are unfavourable to the party.
That said, on a summary judgment motion there are times when hearsay evidence might not be viewed unfavourably, especially where there is no evidence provided by the respondent to dispute the allegation in the first place. The question is whether there are persuasive earmarks of safety that support giving weight to this type of evidence. (Emphasis in original)
[11] The third case I was referred to is Children’s Aid Society of Toronto v. O.G., 2015 ONCJ 125 [O.G.]. In that case the court discussed the nature and quality of evidence on a summary judgment motion and held at paras 49, 50, and 52:
[49] What is the standard for evaluating the sufficiency of the evidence on a summary judgment motion? Rule 16 allows for the admissibility of hearsay evidence but provides that a court may draw adverse inferences if evidence of a disputed fact comes from a person who does not have person knowledge [sic] of those facts.
[50] Summary judgments are not simply paper trials. Justice Karakatsanis (S.C.C.) in paragraph 57 of the Hyrniak v. Maudlin decision makes it clear that the evidence on the summary judgment motion need not be equivalent to that at trial. However, she notes that the evidence on the motion must be such that the judge hearing the motion is “confident that he or she can fairly resolve the dispute”.
[52] Clearly, not all facts need be proved to the same standard. Uncontested facts or non-material facts might be established through hearsay evidence. However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge. The party seeking the summary disposition must meet the onus of establishing that there are no genuine issues requiring a trial. (Emphasis in original)
[12] In O.G. the court held that hearsay evidence from a doctor describing bruises he found on the child met the threshold test for reliability (necessity did not appear to have been considered), and that it was properly admitted although on an important material fact in dispute in the case.
[13] The starting point in addressing the admissibility of hearsay evidence is that it is excluded, unless the proponent of the evidence satisfies the court that the two branches of necessity and reliability have been met on a threshold basis.
[14] The hearsay dangers which formed the basis of the exclusionary rule are out in Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009) at § 6.9 and 6.10:
6.9 The law assumes that oral testimony of witnesses should not be accepted at face value and has accordingly built in such safeguards as the requirement of an oath or affirmation, the right of cross-examination and the creation of the crime of perjury. Special attention has been given to hearsay as being particularly fraught with untrustworthiness and unreliability because its evidential value rests on the credibility of an out-of-court asserter who is not subject to the oath, cross-examination or a charge of perjury. As Dickson J. (as he then was) stated in R. v. Abbey:
The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination, have been considered to be the best assurances of the truth of the statements of facts presented.
6.10 In addition to concerns about the untruthful declarant, hearsay dangers also encompass those arising from an untested statement made by an honest but mistaken declarant, because of lack of perception, poor memory or imperfect articulation of what was observed.
[15] In my view the FLRs do not supplant the starting point of the exclusionary common law rule that hearsay is inadmissible, but can be admitted if the twin requirements of necessity and reliability are met. To the extent that O.G. and A.K. suggest that the only threshold consideration is reliability, I disagree.
[16] Less important or undisputed facts may be established in appropriate circumstances by admissible hearsay, but I do not agree with the articulation, “where there is no evidence provided by the respondent to dispute the allegation in the first place.” The problem with that articulation is that there will not be evidence from the respondent to the motion for summary judgment in the “first place”. The respondent will not be delivering any evidence until after the moving party has delivered its materials. I disagree with the submission made to me that the Society as moving party may tender whatever hearsay evidence it sees fit, and then wait to see if the respondent disputes it. Is it fair to expect a respondent to dispute inadmissible hearsay? If the respondent did, would the Society then expect to be able to provide first hand evidence by way of reply?
[17] It seems clear to me that both questions are properly answered, no.
[18] I agree with Justice Sherr where he stated in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646:
[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.
[19] The Society also suggested that the Child and Family Services Act, R.S.O. 1990, c. C.11, s. 50(1) [CFSA] and section 35 of the Evidence Act, R.S.O. 1990, c. E.23, might provide assistance. They provide:
- (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
- (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
[20] These sections may well enable the introduction of some hearsay that might otherwise not be admissible. The opening words of s. 50(1) are words of limitation, often overlooked in the application of the provision. They state “despite anything in the Evidence Act”. They do not sweep aside all of the rules of evidence. This point was made more than 30 years ago by Nasmith J. in Catholic Children’s Aid Society of Metropolitan Toronto v. P., 1984 4883 (ON CJ), [1984] O.J. No. 2262 (Prov. Ct. (Fam. Div.)), at para. 18:
The law of evidence has developed painstakingly over the years. There would be a degree of irony in suddenly invoking special children’s issues as an excuse for sweeping away these laws. Ironic, because surely sound decision-making based only on reliable evidence is at least as important in Court cases involving children as in any other instances of dispute resolution and it is at least equally important to the parties in these cases, including the children, that they have the right to prevent the admission of unreliable evidence that could prejudice the outcome.
[21] Nor is section 35 of the Evidence Act authority for the admissibility of hearsay statements of a third party that are recorded in a business record if the third party was not under a routine business obligation when making the purported statement. See Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 1977 1184 (ON SC), 15 O.R. (2d) 750 (H.C.).
Consideration of the Hearsay in this Case
[22] I will now address the use of hearsay in the materials tendered by the Society in support of its motion for summary judgment.
[23] The affidavit deposed by the child protection worker contains a lengthy historical file review of events pertaining to older children predating her own involvement in the case, both in Ottawa and in other jurisdictions, going back to 1997. I find that the presentation of relevant historical evidence by the current worker could meet the threshold test for necessity and reliability. Such evidence may be relevant in so far as it provides a back drop against which to consider the current situation. The hearsay may be necessary having regard to the number of previous workers and other information sources involved, and difficulties contacting them. Information recorded might be admissible under s. 50(1) of the CFSA and/or section 35 of the Evidence Act. The recorded information may be more reliable than direct evidence that might be available from these individuals today. Previous orders or agreements reached as to the care of these older children might provide some corroboration as to the accuracy of events recorded.
[24] I say “could be necessary” and “might be reliable” because I did not receive specific submissions from the Society as to the whether this aspect of the affidavit did meet the twin requirements of necessity and reliability.
[25] The child protection worker’s affidavit goes on to set out information obtained from other sources during the worker’s involvement in the file: from an instructor at Caution; Parents Learning; a number of school and preschool teachers of both children; a Catholic Family Services therapist for A.; a social worker at the Royal Ottawa Hospital; an emergency doctor at the Children’s Hospital for Eastern Ontario in Ottawa; another physician from that hospital whose area of practice is not identified; the coordinator of the children’s mental health ward at the CHEO, a non-physician, but who reported to the worker the views of the attending physician; statements attributed to a child psychiatrist, Dr. Palframan, including diagnostic information; various pieces of information received from the maternal grandmother, including E.’s diagnosis, and medication prescribed by pediatrician Dr. Huot; what appears to be a contrary medical opinion told to the worker by the family physician, namely that the medication was optional and was safe to stop if it was not required to help with focus; the Ottawa Police; information received from “access reports” detailing concerns which are listed in a general way, but without dates or specificity, and information received from the foster mother.
[26] The Society provided no explanation as to why any of these individuals could not have deposed their own affidavit. Without satisfying the court as to the twin requirements of necessity and reliability at the threshold level, the hearsay is inadmissible.
[27] The child protection worker attached a number of letters and reports as exhibits to her affidavit. One of these was Dr. Worenklein’s section 54 assessment, which is properly part of the evidentiary record by reason of section 54(6) of the CFSA.
[28] The other exhibits contained a combination of observations, opinions, and second hand hearsay. One letter is from The Roberts Smart Centre, which provides mental health services to children. Two letters are from the Ottawa Children’s Treatment Centre. There is a letter from a classroom teacher, an Ottawa Police Service occurrence report, two opinion letters from Dr. Palframan, a letter from Dr. Huot; a 9 page report from Dr. Ward at CHEO, a psychological Assessment report for E., a variety of CAS access observation reports.
[29] The letters from health practitioners were neither compliant with FLRs r 20.1 or with section 52 of the Evidence Act, with respect to the admissibility of expert reports.
[30] None of these other attachments were sworn or affirmed to be true by the authors. This meant that the respondents were denied the opportunity to cross examine them prior to the motion.
[31] In view of the conclusion I have reached, I will not address all of the hearsay issues in the Society’s materials. But the Society seemed genuinely to believe that the rules of evidence were to be relaxed for summary judgment motions, (otherwise why not run a trial?) and that this was sanctioned by Hryniak. For these reasons I will explore some of the evidence tendered by way of illustration of the applicable the hearsay dangers.
[32] Dr. Huot’s letter attached as an exhibit provides a conclusionary or summary report on the observations his office staff have made of the mother, over the years since 2006. He refers to past parenting of prior children without providing any foundation of his own personal involvement during those years with respect to one of those children. He concludes the children are better behaved at their grandmother’s place than at the mother’s, although he does not say he has any first hand observations of the children in either home. His final conclusion is that the children are displaying behaviour of inconsistent parenting as well as insecurity and the need for affection and caring. No examples are provided.
[33] Dr. Huot’s letter was not deposed in affidavit form. The respondent had no opportunity to cross-examine on it. He is the children’s pediatrician, and able to provide treating or working diagnostic opinions in a properly delivered report, yet it is questionable whether the opinions in his letter fall into that category.
[34] The child protection worker’s affidavit makes many references to information received from day care providers and teachers. These include significant second hand hearsay. Examples are, what the mother reportedly said to the teacher, as then conveyed by the principal to the protection worker; the comment by the principal that “they” can hear A. and her mother yelling at each other during phone calls, without identifying who they are; complaints made by the mother to the teacher about the child’s “behaviour”, without elaboration; a statement that A. is “overly punished at home”, with no source provided and no other detail provided; a comment that “some of the boys have commented that A. smells”; a report from unidentified “day care staff”, that the grandmother “would be waiting at the bus stop with E.”
[35] These are examples of hearsay that would be unlikely to meet the threshold for admissibility.
[36] The letters from the Ottawa Children’s Treatment Centre are problematic. They both include sophisticated charts and graphs purporting to record session data in relation to specific targets set for the mother and her success in, and the frequency with which she meets a target. The letters are signed by Christa Janes. The affidavit describes her as a Caution: Parents Learning worker who worked with the mother. She identifies herself as a Behaviour Consultant. One infers from the letters that Ms. Janes has collected and tabulated all of the information set out in the letter, and entered into the charts and graphs herself, although this is not actually articulated. No information is provided as to the creation of the graphs and charts or to an interpretation methodology. As one example in the letter dated December 16, 2014, Ms. Janes states, “The data also indicates that [the mother] occasionally disregards recommendations from the consultant.” It appears that subjective observations are recorded, charted, and graphed.
[37] On their face, these letters constitute opinion evidence, but none of the steps required for the admissibility of expert opinion appear to have been fulfilled.
[38] A key issue in the case is the mother’s attitude and approach to medication of the children. The Society asserts that she views medication as the panacea to any and all problems she may have with the children, and medicates them unnecessarily. The Society also asserts that the mother lacks the requisite behavioural management parenting skills to address her children’s needs without resort to medication.
[39] The child protection worker’s affidavit relies on hearsay from the schools, day care and foster home in relation to this issue. The affidavit includes hearsay from Dr. Benoit that medication for E. was optional and safe to stop if E. did not require help to focus. There was no report from Dr. Benoit. He is described as the family physician but it is not explained whether he had been asked to, or in fact had, prescribed for E. Dr. Benoit is said to have provided this information to the worker on May 15, 2014. Yet, her affidavit also deposes that in April 2014 she was notified by the grandmother that E. had been diagnosed with ADHD and prescribed medication to treat it. The worker goes on to state that Dr. Huot confirmed the prescription on April 8, 2014, that it was to treat behavioural problems reported by the grandmother, and that he had increased it on May 9, 2014.
[40] Dr. Palframan is a child psychiatrist at CHEO. In a letter dated June 19, 2014 he refers to being told that Dr. Huot had prescribed ADHD medication for A.
[41] Although Dr. Huot prepared a letter dated February 10, 2015, for use on this motion, he makes no reference to prescribing any medications for either child.
[42] Dr. Palframan was asked by the Society to speak to the mother and to see A. to determine whether medication may or may not be a good idea. In his June 19, 2014 letter he said he would be meeting with A. later on to form his own medical opinion. His next letter was dated October 23, 2014. In it he reported the school was reporting the same symptoms as the mother in her home. His working diagnosis was ADHD. He also ordered a resumption of Ritalin and Clonidine for A.
[43] During oral argument the mother’s counsel pointed out that although Dr. Palframan referred in his second letter to meeting “again” with A. there was no letter or other reference from Dr. Palframan about a prior meeting with the child. Additionally the protection worker had stated in her affidavit that Dr. Palframan had recommended that A. be off her ADHD medication for the summer months. This was very important because in her affidavit the protection worker said that Dr. Palframan had recommended that A. be off her ADHD medication for the summer months. One available inference was that the child did not need to be medicated over the summer. Another available inference is perhaps that the child’s difficulties in the fall were related to being off medication over the summer. These are important facts and ought to have been established through Dr. Palframan.
[44] In reply the Society advised that there had been another letter from Dr. Palframan, but it had been inadvertently omitted from the protection worker’s affidavit.
[45] I pause to reflect that if Dr. Palframan had deposed an affidavit or prepared a medical report for the motion, rather than the Society adopting the expediency of attaching letters from him to the protection worker’s affidavit; it is unlikely that one of his letters would have been overlooked. Had the respondent had the two rights to cross-examine him, and done so, she likely would have discovered such an omission in a timely way. She would also have been able to question Dr. Palframan about an assertion he made in his first letter that suggests the mother had sought additional prescriptive medication for A. from Dr. Sethi at the same time as she was taking medication prescribed by Dr. Huot. The mother produced her prescriptive history from the pharmacist showing these to be successive, not concurrent prescriptions.
Conclusion
[46] The child protection worker’s affidavit did contain first-hand knowledge. The Society did also tender an affidavit from a Child and Youth Worker who supervised the mother’s visits with the children starting in November 2015, and continuing to the date of the motion, as to her personal observations. The section 54 assessment is admissible, subject to its foundational facts having been established in evidence.
[47] That said, I am not confident that I can fairly resolve this dispute on the record before me. The Society did not attempt to show me that its motion could or should succeed were I to exclude the inadmissible hearsay. Were I to endeavor to weed out all of the inadmissible hearsay and to consider the remaining portion of the record, I would be considering a substantially different case than the one argued before me in court during the oral hearing.
[48] In my view, proceeding in that fashion would not be in the interests of justice. The motion that was presented was replete with hearsay with no attempt made to demonstrate the necessity of admitting it. Accordingly, the motion for summary judgment is dismissed. The
parties should attend in court on May 26 at 9.30 a.m. for the purpose of scheduling trial dates. Should they be unable to agree on the mother’s access schedule from then until trial, permission is given to the mother to bring a separate motion to have the court address that issue.
The Honourable Madam Justice Mackinnon
Date: May 5, 2016
CITATION: The Children’s Aid Society of Ottawa v. J.B., H.H., 2016 ONSC 2757
COURT FILE NO.: FC-98-685
DATE: 2016/05/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Children’s Aid Society of Ottawa, Applicant
AND
J.B. and H.H., Respondents
BEFORE: Madam Justice Mackinnon
COUNSEL: Lara Malashenko, for the Children’s Aid Society of Ottawa Lisa Sharp, for the Respondent J.B. Wendy Rogers, for the Respondent H.H. Malina Feeley, for the Children
ENDORSEMENT
J. Mackinnon J.
Released: May 5, 2016