COURT FILE NO.: FC-16-1642
DATE: 2018/03/02
ONTARIO
SUPERIOR COURT OF JUSTICE
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
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
C.L. (Mother) Respondent
-and-
M.M. (Father) Respondent
Tara MacDougall and Juliet Kim, for the Applicant
Annemarie Roodal, for the Respondent (Mother) Cedric Nahum, for the Respondent (Father) Pamela Barron, for the Office of the Children’s Lawyer
HEARD: February 28, 2018
mid trial ruling
VOIR DIRE ON THRESHOLD RELIABILITY
J. Mackinnon J.
[1] In this child protection application, the Society seeks a finding that the child S., born […], 2005, is in need of protection pursuant to CFSA section 37 (2) (a) (b) (risk of physical harm by reason of inadequate care or pattern of neglect) and 37(2) (g) (risk of emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destruction or aggressive behaviour).
[2] As part of its case, the Society seeks to tender out-of-court statements made by the child to three child protection workers and to her counsellor. Other statements made by the child will be tendered as evidence of her state of mind under the recognized exception to the hearsay rule. The introduction of the statements into evidence is not opposed by the mother or the OCL, but is opposed by the father.
[3] Hearsay evidence is presumptively inadmissible. It may be admitted under the principled exception if the criteria of necessity and threshold reliability are met on a balance of probabilities. In this case necessity of the hearsay evidence was established in a previous voir dire at CAS v. C.L., 2018 ONSC 1241.
[4] This ruling addresses threshold reliability. The inquiry focuses upon whether the evidence is sufficiently reliable to overcome the hearsay dangers associated with it. The Supreme Court of Canada recently summarized the hearsay dangers and the principled exception to the hearsay rule in R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35 at paras 20 and 26:
20 Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:
• First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.
26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.
[5] The determination of threshold admissibility of the out of court statements of S. turns on substantive reliability. In Bradshaw, the Court addressed substantive reliability as follows:
30 A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).
[6] In R. v. Khan, 1990 CarswellOnt 108 the Supreme Court articulated a non-exhaustive list of factors to consider in relation to out of court statements made by a child. At para 32, the Court said:
32 The next question should be whether the evidence is reliable. Many considerations, such as timing, demeanour, the personality of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability or to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.
[7] In child protection cases some of the factors courts have considered in assessing threshold reliability include:
• whether the statement was spontaneous;
• the timing of the statement in relation to the event
• the method and timing of record taking, if any;
• absence of suggestion or manipulation;
• whether the statement is in response to a leading question;
• the demeanour of the witness who received the statement;
• whether that witness has a vested interest in the outcome of the case;
• whether the recipient was under a business duty to record the statement accurately, objectively and in a timely way;
• whether the recipient is in court, available for cross examination, i.e. first hand hearsay only; and
• the child’s age, cognitive abilities, motive to fabricate, the contents and context of the statement.
For a very useful framework for consideration of threshold reliability of children’s out of court statements see: Are there Any Rules of Evidence in Family Law? D.A. Rollie Thompson, [21 C.F.L.Q.] 245, at 295 – 296.
[8] It is important to distinguish between the role performed by the judge in considering threshold reliability and the fact finding role of the judge as trier of fact in considering the ultimate reliability of hearsay statements that have been admitted into evidence in the trial itself.
[9] As stated in Bradshaw at para 24,
“By only admitting necessary and sufficiently reliable hearsay, the trial judge acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process.”
And at para 41, “In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge’s inquiry [as gatekeeper] serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact’s role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value.”
[10] On the threshold test of reliability it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others. See CAS of Halton v. T.A.G., 2012 ONCJ 746 at para 143, and Children's Aid Society of Ottawa-Carleton v. L.L., [2001] O.J. No. 4587 (S.C.J.) at para 22.
Statements Tendered for the Truth
Myléne Soucy, CPW
August 11, 2016
When asked why she was crying and what was going on, S. said: "My dad is strange."
When asked what that meant, she said "I am always scared he is going to 'flip out.'"
When asked what that means or what that looks like, she said "When he flips out, he yells and swears at people." She then added, "My dad always says my mom is 'mentally ill'." She then added: "He told me to tell you that he is a good father and he didn't do anything wrong."
When asked "what do you and your dad do when you're home alone?" she said "I spend all my time in my room and I don't say anything to him to make sure he doesn't get mad at me."
[11] Ms. Soucy has been employed by the Ottawa Society for six years. She has a MSW and at the time was an after-hours service provider. She attended the father’s home on August 11, 2016 in response to a call made to the CAS. She arranged for the Ottawa Police to accompany her for the reason that a file note said the father had previously shown volatility with a Society worker. Three or four uniformed police officers did accompany her to the apartment door. Ms. Soucy advised the father that she was there to check on the child’s safety and that she wanted to talk to S. privately. The father offered her to enter his apartment without the police but she declined. He did agree that S. could speak to Ms. Soucy in the hallway, which she did. He encouraged the child to speak to her and he closed the apartment door so that they would have privacy.
[12] Ms. Soucy observed that when she first saw S. the child appeared scared, had tears in her eyes and was shaking.
[13] Ms. Soucy testified in the voir dire that as she and S. walked further down the hallway for privacy the child started crying right away. She continued crying throughout the entire conversation. Ms. Soucy asked a specific question: “why are you crying?” The child replied, “My father is strange.” Ms. Soucy asked her what she meant by that, and the child replied, “He flips out. I’m always scared he will flip out.” Ms. Soucy asked what flipping out meant. The child replied, “He yells and swears at people.”
[14] Ms. Soucy testified that S. spontaneously added that, “He says my mom is mentally ill.” She then said her father had told her to tell me that he is a good father and that he did not do anything wrong. S. said her father had never hit her but sometimes she does get scared when he gets mad because she feels as though he is going to hurt her. Ms. Soucy asked her what they do when they are alone at home and S. said she spends “all her time in her room and I don’t say anything to him to make sure he doesn’t get mad at me.”
[15] Ms. Soucy did not record the conversation or make notes at the time it was occurring. She arrived at the father’s home at 8:15 p.m. She got back to her own home around 9:30 p.m. She entered her recollections into the CPIN system, finishing by 11:25 p.m. She entered some but not all the questions she asked. She was very specific in her recollection that the words “flipping out”, he is “strange”, “yelling and swearing at people”, and “mentally ill” were direct quotes of what the child said.
[16] Ms. Soucy did not challenge S. on anything she said. She did not discuss the importance of her telling the truth nor did she ask her whether if what she had said was true. The child gave no examples of what she considered strange behaviour or yelling by her father.
[17] Ms. Soucy advised S. she would call her supervisor to see if she could take her back to her mother’s that night. The child stood behind her while she made this call. Approval was given. Ms. Soucy and the child went to the elevator while the police told the father what was happening. The last thing Ms. Soucy heard the father say that evening was, “one day you will grow up and see how your mother is, you’ll see.”
[18] Ms. Soucy testified that S. stopped crying immediately after they exited the building. When they arrived at the mother’s home S. ran to her.
[19] Ms. Soucy is a trained social worker with an obligation to be as accurate as she can in her recordings. She made her notes within a few hours of the events she recorded. She had no prior history with any member of the family and no interest in the outcome of the case. Her arrival was unannounced so that there is no suggestion that she coached or prompted the child for the interview. The circumstances were such that the child was surprised and emotional. There were uniformed officers present, which may be intimidating, however Ms. Soucy moved away from them for her interview with the child, and once away from her father and the door way to his apartment where the officers remained, the child’s communications with Ms. Soucy do not reflect that she was intimidated. Her initial question to the child was open-ended and non-directive. This is also true of the other questions recorded in her note.
[20] Not all her questions are contained in her notes, and not everything she recorded was an actual quotation. The child was present when Ms. Soucy declined the father’s invitation to enter his apartment without the police. This, and the presence of the police might have delivered a message to the child that Ms. Soucy was afraid of her father, and, or that she had reason to be afraid of him. The child did not appear to have been influenced by any perception of fear on Ms. Soucy’ s part because she did tell Ms. Soucy what her father had told her to say and that he had never hit her.
[21] There was consistency between Ms. Soucy’s report and the OPS report of the same evening, although her report was considerably more detailed. Both include reference to the father re-entering his apartment, banging the door shut and leaving the child in the hallway with Ms. Soucy. Both refer to him slamming the door shut after learning of the decision to remove S. from his care that evening. The police report does not contain the detail that Ms. Soucy does as to statements made by the father and the child. This is not a contradiction between the reports, but in my view is reflective of the different roles each had.
Jason Risley, CPW
January 16, 2017
When asked “tell me about a typical day at your dad’s” S. said “When he was not in a good mood I didn’t talk to him.” “I would close my door and put my dresser over my door.” When asked “why?” S. said “Because I didn’t know what he would do.”
When asked "what did it look like when your dad was mad?" S. said "He would slam things and yell at me".
"He would slam his fist on the table".
When asked "how often did this happen?" S. said "a couple of times a week".
When asked "how long did it usually last?" S. said "Sometimes it was the whole night and day, sometimes just 10 minutes".
When asked "I heard that you told your lawyer that your dad pushed you" S. said "It's true, when he got really angry he would push whatever was in his way".
When asked "how many times did it happen?" S. said "A couple of times".
When asked "when was the last time?" S. said "I don't remember, maybe last year".
When asked "did it ever leave marks or bruises?" S. said "Yes, I had bruises on the side of my body from him pushing me into the wall".
When asked "did anyone ever see the bruises?" S. said "I would wear a sweater or long yoga pants to hide them".
When asked "did you ever tell anyone about this?" S. said "No".
When asked "tell me what happened" S. said "I don't remember, maybe I was trying to get to my room, he went back to his chair".
When asked “what was your father like in public?” S. said “He would flip out on people whenever we would go out.” When asked “what does ‘flip-out’ look like?” S. said “He would yell at people.”
When asked “how often did this happen?” S. said “Most of the time when we went out.”
When asked "did your dad ever talk about your mom?" S. said "Yes, he would say I shouldn't be religious or Christian".
"He was angry at my mom".
"He would swear all the time about her".
When asked "does your mom ever speak about your dad?" S. said "No".
[22] Mr. Risley has been employed by the Ottawa Society for nine years. He holds a BSW and a MSW. As a Society employee he has received additional training including with respect to how to conduct forensic interviews of children. He was assigned to this case in August 2016. Mr. Risley first met S. in her mother’s home on August 25, 2016. S. had just turned eleven years of age. He met with her separately from her mother. This was an introductory meeting in which he explained his role and the Society’s plan at the time. He made observations of the child, who appeared to him to have a flat affect, to shrug or say “I don’t know” in response to many questions. Whereas he had seen her smile at her mother, she did not smile at him.
[23] Mr. Risley testified that at the introductory meeting he explained the importance of being truthful. He does not recall repeating that advice to S. subsequently.
[24] Mr. Risley met with S. once a month. The statements she made to him that are offered as admissible hearsay were made on January 16, 2017. On this day, as was his practice, he took contemporaneous handwritten notes. Only occasionally would he note a specific question he had asked. He does not audio or video record child interviews. He tried to capture as much of the answers as possible. Mr. Risley’s practice after a child interview accords with Society policy. He tries to enter his notes into an electronic contact log within 24 hours after the interview. His testimony was that he enters his notes verbatim, and adds to them with his recollections and observations. On completion, his handwritten notes are destroyed in accordance with the Society’s policy.
[25] During the first twenty four hours after the notes are entered into the contact log, changes can be made to them, but not thereafter. Mr. Risley was not asked whether he made any changes to his notes during that window.
[26] Mr. Risley said that although he had not used quotations marks in his notes, he is able to look at his notes and remember exactly what S. said.
[27] Mr. Risley testified that his practice is to ask a child general, open ended questions. He gave some examples: How are you feeling about this; tell me about that. His goal is to give the child the opportunity to speak openly.
[28] On January 16, 2017, prior to meeting with S., Mr. Risley asked the mother if she had spoken to S. in a negative way about the father. He was exploring whether there was any negative influence coming to the child from the mother. The mother said she had not. During his own interview with S., Mr. Risley did not observe any indications that S. had been coached by her mother, nor did S. say anything that would suggest her mother had told her what to say.
[29] The layout of the apartment was described. Mr. Risley and S. met in the living room. The mother removed herself to the farthest bedroom. Interviewing at home is considered a best practice for the comfort of the child and family in general, as compared to a less natural, off site location, even though off site might be more neutral.
[30] January 16 was the first time S. had opened up to Mr. Risley. He described her as chattier than before, using less shrugging and “I don’t knows”, engaged but still showing a flat affect. On this occasion, he opened with the request for her to tell him about a typical day at her father’s. Her response began with what it is like when her father is not in a good mood. Mr. Risley followed her response with the question, why? He did not record it, but recalls his next question was to ask what it looked like when her father was mad. His testimony was that he tried to ask connecting questions based on what she had told him.
[31] There was a direct question put to S., Mr. Risley did note this. He had received information from S.’s lawyer of something S. had told her. To this point in the interview S. had not given this information to Mr. Risley. He said to her, I hear you told your lawyer that your dad pushed you? S. answered that it was true. A number of follow up questions ensued. These questions were very specific, not leading, but directing the child to a very specific point. Some examples are; when the last time was, did it leave marks or bruises, and did anyone see them?
Francine Amyotte, Child’s Counsellor
December 7, 2016
“He used to say bad things about mom. Insults, swears…yell.”
S. shared “blurry memory of someone touching her” but doesn’t know who. She doesn’t want to talk about it-hurts in stomach
January 23, 2017
S. tells Francine of voices she hears in her head-that’s why she can’t focus at school
Remembers dad physically hitting her or throwing thing at her
February 23, 2017
S. tells Francine her father is the one who is in the "blurry memory", "she always knew'' he is the one who sexually abused her.
Dad used to state that you have to be introduced to these things
March 14, 2017
S. states that she cut herself after the police interview
March 23, 2017
S. told Francine she stopped cutting herself
September 28, 2017
S. tells Francine still having memories of abuse from father.
[32] The statements made on March 14 and March 23, 2017 are admitted on consent for proof of the truth of their contents.
[33] Ms. Amyotte is a registered member of the Ontario College of Psychotherapists. She has a Master’s degree in Counselling Psychology, a Bachelor’s degree in Education plus 21 years of experience in counselling. She has taken many continuing education programs in related areas, including play therapy, sand therapy, emotional freedom training, developing resiliency in children, including regulating emotions, and attachment based strategies for healing.
[34] Ms. Amyotte has extensive experience counselling children who have gone through a separation of their parents, have been exposed to high conflict separations, children with anxiety, and other emotional situations giving rise to a need for counselling. In a separate voir dire, Ms. Amyotte was qualified as a participant expert for the purpose of providing her opinion as to the emotional wellbeing of S. on initial presentation, during the treatment period and at its conclusion. She was also qualified to testify to how and why she established her goals for working with S. and the treatment plan she followed. In this regard statements made to her by the child were admissible to show the foundation for the decisions Ms. Amyotte made within this scope. Her ability to testify to out of court statements made by the child as proof of their truth remains to be dealt with in this voir dire.
[35] Ms. Amyotte had 17 sessions of psychotherapy with S. from December, 2016 to October, 2017. They took a three month break during the summer of 2017. The break was initiated by S. The therapeutic relationship ended when Ms. Amyotte moved.
[36] Her sessions with S. were all private and were usually for one hour. Her practice is that the child leads the discussion. The conversation moves forward as and when the child is ready. Her purpose is to find the child’s opinion, the child’s reality and therefore she does not prompt or lead or try to direct the path a conversation will take. She describes this as non-directive.
[37] Ms. Amyotte’s practice is to take some notes during a session. Usually she writes up the session immediately after it ends. This is her strong preference, and she would not exceed 24 hours. Sometimes she will jot down the exact words of a child. Other times she will paraphrase. Ms. Amyotte has training in therapeutic interviewing of children. Ms. Amyotte said that when she uses quotes it is because she is copying the child’s words. She acknowledged having written “touching her” whereas the child would have said, “touching me”. She admitted the use of quotations was not always a direct quote, but could mark something important.
[38] She also testified to having independent recollections of some of the things S. said to her, including it “hurts in the stomach”.
[39] Ms. Amyotte agreed that her note of each session is a summary. She includes what is important to the therapy.
[40] Ms. Amyotte did not speak to S. about the importance of telling the truth. She did not regard it as necessary. Her work is to establish a therapeutic relationship with the child, built on mutual trust. Her endeavour is to create a safe environment for the child in which to express her concerns. She thinks she conveys to the child indirectly that the truth is important.
[41] During their initial sessions, Ms. Amyotte formed the impression that S. was testing her to find out if she was trustworthy. She let S. decide what to discuss and which of the available therapeutic toys she would like to use.
[42] An exception to her child directed approach takes place at the first meeting. Ms. Amyotte asked S., as is her practice, for her understanding of why she was seeing the therapist. S. said she had a “blurry memory of someone touching her” but she doesn’t know who. She added that she did not want to talk about it because it hurts in the stomach. And she then added as to why she was seeing the therapist and that she did not want to see her dad. She gave an explanation for that, saying he used to say bad things about her mom, insults, swears and yells.
[43] Ms. Amyotte testified that S. seemed angry when she made these statements.
[44] On January 23, 2017 Ms. Amyotte observed S. as very distraught. She appeared intent on communicating with Ms. Amyotte. As per her usual practice, she let S. take the lead, opening with a general question. She then listened and observed that S. was watching her closely to see how she would react to what she was being told. S. told her about the voices she hears in her head and that she remembered her father hitting her or throwing things at her.
[45] This session included S. recounting a bad dream she had of her father saying very ugly things to her. Ms. Amyotte thought the dream was described to her as something that had actually happened and been dreamed about.
[46] On February 23, the session began with S. talking about her new school and friends. She mentioned her voices. She seemed angry and was cutting up playdough. Ms. Amyotte described S. as appearing eager to tell her things, jumping form topic to topic. S. drew a picture of a girl whose mouth was sewn shut so she cannot talk. Immediately after drawing this picture, she made the statement that it was her father in the blurry memory. She always knew he was the one who had sexually abused her. This was said spontaneously. S. continued to talk. She added information too, that he had given her beer when she was six, and had told her she had to be introduced to these things.
[47] Ms. Amyotte told S. she had to call the CAS to report what she had said. S. agreed she could, and requested to stay during the phone call, which she did do.
[48] This session lasted for two hours because S. wanted to stay and keep talking.
[49] On September 28, 2017 the therapist and child met again after the long summer break. Ms. Amyotte says she asked the child to bring her up-to-date on how she was doing. One of the statements made by S. was that she still has memories of abuse from her father. She went on to say that she had written them down, then ripped up the paper.
[50] Ms. Amyotte describes these as spontaneous statements.
Conclusion on Statements tendered for their truth
[51] Ms. Soucy was not in a position to take notes during her hallway interview with S. She entered her notes into the electronic format very soon after the event. Her recollections stood up on cross examination. It would have been artificial in the circumstances to advise the child about the importance of telling the truth. The presence of a social worker and police officers on the door step would strongly suggest that in any event. The conversation commenced with a very natural question: why are you crying. The information relayed by the child thereafter was voluntary and fluid. This was in contrast to her hesitation to speak when her father was present, observed by Ms. Soucy and a police officer.
[52] It was submitted for the father that the statement that her father had never hit her should not be admitted because it was contradicted by other statements subsequently made by S. Nor should those subsequent statements be admitted, because they too, had been contradicted by what S. told me Ms. Soucy. I disagree. S. met Ms. Soucy for the first and only time during the hallway interview. The inconsistency with statements she made to other individuals may be better explained by the opportunity she had to develop a rapport and working relationship with them than by a conclusion that the child is fabricating. This determination ought to be left to the trier of fact when considering ultimate reliability.
[53] My conclusion is that the out of court statements tendered through Ms. Soucy for the truth meet the threshold reliability test. They are admitted into evidence in the trial.
[54] Mr. Risley was calm and dispassionate in giving his testimony. He was not defensive. He acknowledged that using quotation marks and including more questions asked would improve his record. He acknowledged that audio or video recording would provide a more accurate record than his notes. I was satisfied that his noted were very accurate. He impressed me as a very good note taker, especially given that his notes of the police interview were very accurate to the video. By the time of January 16, 2017 he had established a relationship with S. whereby she was more relaxed and open with him.
[55] The answers she provided in response to open, non-directive questions were volunteered by her and not accompanied by signs of hesitation or uncertainty on her part. Did she have a motive to fabricate, namely to succeed in remaining in her mother’s home where she preferred to live? At this point, S. had already been residing with her mother full time since August 11, 2016. She was also aware from what Mr. Risley had told her that he did in fact share what she told him with her parents. I conclude for purposes of the threshold reliability that the hearsay statement is not as likely to have been fabricated as to be true.
[56] The only aspect of his interview that was directive relates to what S. had told her lawyer. Additionally, the information she provided is vague as to when, where or how often. A more open question ought to have been posed, one which did not include reference to having been pushed by her father. For these reasons the portion of the statement commencing, “When asked,” … to, “he went back to his chair” is not admitted into the trial evidence.
[57] My conclusion is that the other out of court statements tendered through Mr. Risley for the truth do meet the threshold reliability test and they are admitted into evidence in the trial.
[58] The disclosures made by S. to Ms. Amyotte were made after a series of sessions with the therapist. The therapist gained the confidence of the child, as she was trained to do. The child was spontaneous in making the proferred statements. She appeared to understand and to want to communicate. She was engaging in the therapeutic process, giving the appearance of wanting to benefit from it. This is supportive of substantive reliability. Her words are supported by and are consistent with some of her drawings.
[59] At the outset of therapy, S. told Ms. Amyotte that she did not know who was in the blurry memory. On February 23, she told her that it was her father, and that she had always known it was her father. Counsel for the father submits this contradiction impacts negatively on the child’s credibility. He also submits the timing of the statement is consistent with S. Having a motive to fabricate, namely to influence the outcome of a care and custody hearing scheduled for March 13. Ms. Amyotte testified that it is normal in a therapeutic process for disclosures to be made after a period of time during which trust is established and the child grows sufficiently comfortable to open up. This is similar to the way the relationship between S. and Mr. Risley, developed. Nor would the father’s theory of motive explain why the child did not speak up earlier on, thereby bringing the case to a speedier conclusion.
[60] These are not findings of fact, but explain why the contradictory statements, the timing of them and the alleged motive to fabricate does not in the circumstances of this therapeutic relationship have much impact on the substantial reliability of the child statements to her therapist.
[61] It was also suggested that S. had a motive to fabricate so that she could continue to attend the sessions with Ms. Amyotte, which she seemed to enjoy. The alleged motive is contradicted by the fact that after making the disclosure on February 23, 2017, S. seemed less interested in continuing in therapy and actually wanted to take a break from it.
[62] It was suggested that the disclosures made on January 23 may have been dreamed by the child, rather than actual events. Ms. Amyotte was not confused by the suggestion. The “dream” drawing was confined to the language the father had used, and did not include any reference to her voices or memory of her father physically hitting her or throwing things at her.
[63] Ms. Amyotte was a professional witness. She listened carefully to questions and provided thoughtful, clear answers. She was not defensive. She remained calm and dispassionate under cross examination. She has specialized training in interviewing children in a therapeutic setting. I am satisfied that she was not leading the child or suggesting answers to her in any way. I am also satisfied that her notes of what the child said are just that, and are not her impression of what the child said. Ms. Amyotte delineated between what she thought, what impression she had, and what the child said.
[64] For these reasons, the out of court statements tendered for their truth through Ms. Amyotte do meet the requirement for threshold reliability and they are admitted into the trial evidence.
Statement’s for Child’s State of Mind
[65] When the voir dire commenced, the issue of statements tendered for the child’s state of mind was contentious. By the conclusion of the voir dire, agreement had been reached as to what should be entered, or admitted for another purpose. These agreements are included in the charts below so that all counsel will have the same document setting out what has been admitted into trial evidence and for what purpose.
Leandro Silva-Stone, CPW
July 13, 2016
“I don’t like going to my dad’s house.”
“I would prefer to live with my mom full-time.”
[66] These statements were conceded admissible within the traditional exception to the hearsay rule.
Myléne Soucy, CPW
August 11, 2016
When asked if she felt safe staying with her father that night, S. said “No, and I want to go see my mother and stay with her tonight.”
[67] This statement was conceded admissible within the traditional exception to the hearsay rule.
Jason Risley, CPW
September 26, 2016
When asked “how do you feel when you found that note from your dad?” S. said “I am not sure…I had mixed emotions…I laughed and cried.”
When asked "how would you feel about speaking to your dad on the phone?" S. said "I'm not sure".
When asked "how would you feel about seeing your dad?" S. said "I would rather not".
When asked "what if it was supervised?" S. said "No". When asked "why not?", S. said "He's very
Unpredictable.”
January 16, 2017
When asked "what are your biggest worries?" S. said "My dad's anger, lunches at my dad’s, and trouble focusing at school". When asked "what do you want to change?" S. said "I would like for my dad to be a nicer person and for someone to take away his anger".
"He needs to change his attitude toward me and other people". When asked "how would you feel about seeing your dad?" S. said "I would see him supervised".
When asked "where do you want to live?" S. said "I want to stay with my mom and maybe go to my dad's but not as much".
"Maybe dad's on weekends and mom's most of the time".
"Christmas was weird, I missed having him there".
February 15, 2018
S. asked me "when are you going to stop coming?" I explained that it should be soon, as Court was almost done. S. said "this is taking too long". I asked S. "how do you feel about Court?", and she said "I don't care, nothing is going to change, I'm going to stay here forever.” S. then said "tell the Judge to hurry up" and "can I just talk to the Judge?" I explained to S. that talking to the Judge is tricky, because it could open it up for her to have to be in court and get asked questions by everyone, and that this can be difficult for anyone under 16, so that's why all of the adults are going to speak to the Judge and explain what she has been telling us.
I asked S. "what would you do if you saw your dad?" S. said "I would freak out and I would hit him in the face, people would say I can't hit him in the face but I would".
I asked S. what was in the envelope and she said "my report card". S. said "I don't want to share it with you" I asked "why not?" and she said "because it's not private, you have to share it with everyone, like my counselling". I asked "but I thought you consented to share your counselling records?" and S. said "I felt forced into it because if I didn't then I would have to go back to my dad". S. said "I didn't want my records out, it's a violation, I don't trust anyone anymore, I can't go back to counselling because then everyone will just see what we talked about". I told S. that I understood how that would feel like a violation (repeating her word).
S. asked “what if you were feeling sad and hopeless and couldn’t talk to anyone about it?” I told S. she could talk to me and she said “you just share everything I say too.” I told her that is true, that I have to share what she says so the Judge knows what she wants. I asked S. “what would make you happy?” and she said “not seeing my dad.” S. then spontaneously said “I would rather die than go back.”
S. then asked again "can I talk to the Judge?" "Maybe I can just write a letter to the Judge?” I asked S. "say I'm the Judge - what would you want to say to me?” S. said "this is weird" "don't make eye contact!" "how fast do you write?" then proceeded to speak as I wrote (with no further prompting or response from me):
"I do not want to live with my dad because I hate him and the apartment he lives in. I have experienced a traumatic event in which I feel violated from. I do not want to go back to there. If I were to go back I don't think I'd be able to handle it emotionally. For why would you put a child in a dangerous situation in which they could be violated or hurt or made to not feel alright. Right now court is affecting me a lot. I would be extremely happy to live with my mother because she has never done anything to me. I want to live full time with my mom."
S. asked "will I have to go back to live with him?" and I told her that I didn't know, that at 12 she has a lot of say in where she lives but it's up for the Judge to decide. S. started to cry, for the first time in any of our meetings. S. said "I'm sorry that I'm not as happy as usual" and I said it was ok to cry. I asked what was wrong and she again said "I want to speak with the Judge".
S. stopped crying and said "tell me something happy about Court". I told her that we are nearing the end so everything should be done soon.”
I asked S. “what are you worried about?” S. said “I’m worried about school, about him knowing where I go to school, I don’t want him to show up at school, I like my school, and I don’t want to leave.” I explained to S. that as far as I knew right now her dad does not know where she goes to school. S. asked “will he ever know?” and I said I can’t say for sure. S. started to cry harder, at points gasping for breath.
I asked S. "what would help?" S. said "to not go back to him, for him to not know where I go to school, for him to not know where I live".
S. asked "is it my right for him to not know where I live or go to school?" and I said I did not know but would ask. She said "I don't want him to know anything"
S. continued to cry, and kept repeating "will I have to leave, am I going to have to go back to him?"
[68] All of these statements made to Mr. Risley were conceded to be admissible within the traditional exception to the hearsay rule.
Francine Amyotte, Counsellor
December 7, 2016
S. states that she doesn’t want to see “dad.”
December 7, 2016
“He used to say bad things about mom. Insults, swears…yell.”
February 17, 2017
S. states that she used to cut herself
February 23, 2017
S. tells Francine, she fears her father will come back
March 23, 2017
S. stated that it is a new feeling to be happy. She stated that her mother had told her that Dad wasn’t allowed to see her after the court decision
[69] The statements made on December 7, 2016, December 20, 2016, February 23, 2017, and March 23, 2017 are all conceded admissible within the traditional exception to the hearsay rule.
[70] The statement made on February 17, 2016 was admitted, on consent, as proof of the date on which Ms. Amyotte received information from S. that she had been cutting herself.
Dr. Jean Suk, Paediatrician
June 23, 2016-January 9, 2018
Comments made by S. in regards to her state of mind/mental health
[71] These statements were all conceded to be admissible within the traditional exception to the hearsay rule.
J. Mackinnon J.
Released: March 2, 2018
COURT FILE NO.: FC-16-1642
DATE: 2018/03/02
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
C.L. (Mother)
- and -
M.M. (Father) Respondents
mid trial ruling
voir dire on threshold reliability
J. Mackinnon J.
Released: March 2, 2018