COURT FILE NO.: FC-10-1932

DATE: 2018/07/16

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(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.

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD YOUTH AND FAMILY SERVICES ACT, R.S.O.

AND IN THE MATTER OF J.S. and H.B.

Cheryl Hess, for the Office of the Children’s Lawyer

BETWEEN:

M.S., E.B, and D.O.

Respondents

Deborah Bennett, for the Children’s Aid Society of Ottawa

Cedric Nahum, for the Mother

HEARD: June 25, 26, 27 and 28, 2018

VOIR DIRE Decision

Justice A. Doyle

Overview

[1] In this child protection application, the Children’s Aid Society of Ottawa (“Society”) seeks a finding that the children, J.S., who is 13 years old, and H.B., who is 8 years old, are in need of protection. The Society requests a disposition that the children be placed in its extended care with access to their mother. It requests that the children be designated as access holders in order that the Society may place the children for adoption and proceed to openness.

[2] As part of its case, the Society seeks to tender out of court statements made by the children to three child protection workers: Josephine Parke, Mindy Watson, and Carol McInnis and to a forensic psychiatrist at the Family Court Clinic (“FCC”), Dr. Floyd Wood, for the truth of their contents or for the children’s state of mind.

[3] The Court conducted a voir dire over several days and heard from these four individuals. No other evidence was called by the mother or the Office of the Children’s Lawyer (“OCL”). The fathers of the two children are not part of these proceedings.

[4] The children’s statements include:

− the children’s views and preferences regarding their mother, their future, visits and kinship placement;

− recent incidents involving their mother and other family members; and

− past incidents while living with their mother.

[5] Counsel for the children from the OCL consented to the Society’s request.

[6] As discussed below, the mother is prepared to concede the admission of certain out of court statements as evidence.

[7] The issue is whether the Society has met its onus in establishing necessity and threshold reliability for the Court to allow out of court statements made by the children as evidence in the trial for the truth of their contents, or for their state of mind.

Position of the Society

[8] The Society submits that the Court must consider the children’s views and preferences when determining best interests. The children have a right to be heard and hence the Court must review its analysis of the children’s hearsay statements through this lens. The children are two articulate children who have been in the child protection system for most of their lives.

[9] Forcing the children to testify is not a child-focused approach and not permitting the statements into evidence would force the Society to consider calling them as witnesses. The children have suffered trauma and giving testimony in court could further traumatize them. In addition, they have loyalty issues with their mother which could cause them to “freeze” when being examined even with accommodations such s providing testimony through Closed Circuit TV and/or in the presence of a support person.

Position of the Mother

[10] As stated above, the mother is prepared to consent to some statements as set out below for either the state of mind or for the truth of their contents.

[11] Generally speaking, the mother submits that the Society has not met the necessity and threshold reliability requirements set out in R. v. Khan, [1990] 2 S.C.R. 351. The out of court statements should not be admitted, as the Court cannot assess the truth and accuracy of the statements. In addition, some of the statements are not relevant or someone else can testify regarding this fact.

[12] The children can testify with the appropriate accommodations.

[13] Specifically, the mother contests all the statements made by the children to Ms. McInnis.

[14] The mother does not intend to call the children as witnesses, but will summon the children’s 15 year-old brother, J.S.

Legal Principles

CYFSA

[15] The recently proclaimed Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), has made significant changes to child protection law in Ontario. However, the new legislation has not changed the evidentiary rules regarding admissibility of evidence at a trial.

[16] The CYFSA is child-focused.

[17] In determining the children’s best interests, the Court must consider, among other things, the children’s wishes and preferences, see s. 74 (3)(a), which reads that the Court shall:

a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

[18] The Act’s paramount purpose, set out in s. 1(1), is “to promote the best interests, protection and well-being of children”.

Hearsay

[19] Hearsay evidence is presumptively inadmissible because it is often difficult for the trier of fact to assess its truth.

[20] The definition of hearsay is shaped by the purpose that a statement is being sought to be tendered. If a statement is being tendered to show a person’s state of mind, it is not being tendered for the truth but rather to show the children’s state of mind.

[21] The Society wishes to enter evidence not just for the fact that it was made, but is offering it as an assertion to show the truth of its assertion. In R. v. Khan, the Supreme Court set out the principled approach to hearsay and the exceptions to the general exclusionary rule which allow hearsay evidence to be admitted if it is necessary and reliable.

[22] The Supreme Court stated that the term “necessary” is to be interpreted as “reasonably necessary”. This can include the Court reviewing evidence that testimony in court might be traumatic for the child or harm the child.

[23] With respect to determining threshold reliability, the Supreme Court set out the following considerations for courts: timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement. On a voir dire, the Court must determine whether the particular hearsay statement has sufficient indicia of reliability for the trier of fact to be able to evaluate the truth of the statement and what weight must be given to it.

[24] The judge at the voir dire does not make a determination as to the ultimate reliability. This is left to the trier of fact. Credibility will remain to be addressed by submissions as to the weight to be accorded to the evidence and as to the quality of any corroborating evidence.

[25] In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, the Supreme Court provided an overview and analysis of the law on the admissibility of hearsay statements. The Supreme Court confirmed that the presumptive inadmissibility of hearsay may be overcome if it falls within an exception or the Court is satisfied that the requirements of necessity and threshold reliability have been met.

[26] To determine the reliability of an out of court statement, the Supreme Court stated, at para. 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).

[27] At para. 28, the Court stated that:

Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).

[28] At para. 30, it held:

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 CanLII 79 (SCC), [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).

[29] To determine substantive reliability, the Supreme Court stated, at para. 31:

While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee of trustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’s jurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a skeptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[30] The Supreme Court concluded, at para. 57:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. identify the material aspects of the hearsay statement that are tendered for their truth;

2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

[31] In other words, in determining corroborative evidence, can the Court find that the circumstances or corroborative evidence show that the statements are inherently trustworthy and should therefore be admitted into evidence?

[32] Regarding necessity, in CAS v. C.L., 2018 ONSC 1425, Mackinnon J. referred to R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178. In Parrott, the Supreme Court stated that because there was no evidence of likely trauma or adverse effect to the mentally disabled adult complainant, she could be called as a witness for the trial.

[33] Mackinnon J. also stated that expert evidence is not required in every case where reasonable necessity is based on a fragile emotional state (para. 8). She discussed various cases where necessity was established without requiring expert testimony on the basis of trauma, fragile emotional state or other adverse consequences requiring testifying at trial. See R. v. Ngoddy, 2015 ONCJ 783; CAS Ottawa-Carleton v. L.L., 2001 CanLII 28153 (ON SC), 22 R.F.L. (5th) 24.

[34] Mackinnon J. set out factors that can be considered when assessing threshold reliability, which include: spontaneity of the statement, timing, method and timing of record taking, suggestion or manipulation, leading questions, demeanor, wither witness has a vested interest in the outcome of the litigation, whether the recipient has a duty to record the statement accurately, objectively and in a timely way, whether the recipient is available in court for cross- examination, and the child’s age, cognitive ability motive to fabricate and the contents and context of the statement.

[35] In R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, at para. 28, McLachlin C.J. stated:

Mere discomfort is not enough. But where there is evidence, as here, that an already traumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices. The Court is not required to wait for proof of actual harm to the child.

[36] In Children’s Aid Society of Algoma v. L.H., [2002] O.J. No. 5118, Kurkurin J. was not persuaded of the necessity of having A.C. the 15-year-old child’s out of court statements entered as evidence for the truth of their content. He indicated that the party seeking admission must, among other things, satisfy that it will not otherwise get the evidence of what it claims had happened before the court. At para. 30 he stated, “Fear, or disinclination, or reluctance, even discomfort do not constitute necessity”. In deciding not to admit A.C.’s out of court statements, Kurkurin J. noted that A.C. had given a videotaped statement, and spoken to the police and the child protection workers without significant adverse effects.

[37] In Children’s Aid Society, Region of Halton v. J.O., 2013 ONCJ 191, the Society requested that the transcripts of the children’s evidence taken at the preliminary hearing in criminal proceedings be admitted for the truth of their contents. The Society relied on the affidavit evidence of the social worker from the OCL who stated they were “nervous and scared” about having to testify again (para. 39).

[38] In not admitting the statements made by the child at the preliminary hearing, O’Connell J. found that the Society had not provided evidence that:

a. the children (17, 11, and 8 years old) were not able to testify;

b. the children would be psychologically harmed or traumatized if they were subject to cross-examination at the child protection trial;

c. the children had suffered any harm or traumatic setback after testifying at the preliminary hearing;

d. the 17-year-old child could not give coherent evidence; and

e. the 17-year-old child’s behavioral difficulties were a result of giving evidence at the preliminary hearing.

[39] In addition, in the case at bar, the Society seeks to admit certain statements to show state of mind. This exception can include the children’s wishes and preferences and statements made by the children regarding their physical, emotional and mental state. As stated by Sherr J. in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at para. 19: “The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion.”

[40] In the leading case of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, Iacobucci J. stated that an exception to hearsay was permitted regarding evidence of statements of intent or other mental state.

[41] In Children’s Aid Society of Toronto v. G.S., at para. 18, Sherr J. referred to Parry J.’s comments regarding the statement of mind exception in Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852, 2017 ONC J 852, 4 R.F.L. (8th) 171, at para. 39. Parry J.’s comments are worth repeating here:

Declarations of the declarant’s contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore, there exists a circumstantial guarantee of the trustworthiness of the statement. The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial. In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant’s state of mind. In other cases, courts have ruled that the contemporaneous declarations of the declarant’s state of mind can be received as original evidence, as circumstantial evidence of the declarant’s state of mind, and thus not hearsay at all. However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.

Analysis

Necessity

General Observations

[42] The Court will first deal with the requirement of necessity. The Court is tasked with determining if it is necessary that the children’s out of court statements be entered in as evidence rather than calling the children to testify.

[43] The children have not refused to give evidence; they have not been summoned, nor have they ever testified in court, given statements to the police, been videotaped or audiotaped, or been asked to provide formal statements.

[44] Children are, in essence, the subjects of child protection hearings. As such, there is a risk that they could be required to testify, as they are front and center in proceedings that they themselves did not initiate.

[45] The Society’s mandate is to be child-focused and ensure that all of the children’s needs are met and protected. As part of its mandate, it is logical and reasonable of it to request that the Court admit out of court statements to spare the child further trauma. Children in care have been usually exposed to some risk and it makes sense from the Society’s position to protect them from the court process.

[46] Nevertheless, litigants, including parents and extended family members, should be afforded the right to have a court determine these serious issues of child protection matters based on only evidence that is permissible in law. Child protection matters are very serious proceedings, as they can result in children being permanently removed from their families.

[47] As stated in R. v. Rockey:

But where there is evidence, as here, that an already traumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices. The Court is not required to wait for proof of actual harm to the child.

[48] In determining whether the Society has met the requirement of necessity, it is crucial to review the history of the Society involvement as it pertains to the children.

[49] The Society has been involved in the mother’s life since September 2010; approximately eight years, i.e. all of H.B.’s life and since J.S. was six years old.

[50] The children have been in the care of the Society on three occasions. On two of these occasions, the mother placed the children in the Society’s care because she was overwhelmed.

J.S.

[51] The Court notes the following with respect to J.S., who is 13 years old:

a. she has learning disabilities, including difficulty with reading and has an Individual Education Plan (“IEP”) at school;

b. she has been in care over 1000 days, which is over the statutory limit set out in the CYFSA;

c. in the FCC assessment, the mother acknowledges that J.S. had been diagnosed with PTSD and regression at age of five by Dr. Palframan, a child psychiatrist, due to witnessing sexual interactions and violence in the home;

d. the mother stated that J.S was urinating in containers and onto rugs at the time, and believed that she was being sexualized by the maternal grandparents (FCC assessment, p. 88);

e. she exhibited sexualized behaviour when first at the foster home (FCC assessment, p. 88);

f. she was recently exposed to witnessing her mother having sexual intercourse;

g. she labels herself as an “anxious person,” adding “who wouldn’t be in my situation”;

h. she was continuing to show destabilized behaviour in the foster home (CHEO records, p. 9);

i. she had sexual relations with her older brother, J.S., in the summer of 2016 (FCC assessment, p. 88);

j. when Dr. Wood asked about her relationship with J.S., she froze, became temperamental and refused to discuss it any further with him;

k. the mother acknowledged that J.S. had low self-esteem while in her care but she has improved in care;

l. there have been inconsistent visits with the mother, who missed 14 of 63 visits;

m. there were also gaps in the visits due to the mother obtaining treatment from August 27, 2017, to November 17, 2017, and secondly from January 21, 2018, to March 22, 2018;

n. J.S. has not seen her mother for about six months, since January 2018, and has refused to call her mother since March 23, 2018; and

o. her plan for her future does not include the mother.

H.B.

[52] With respect to HB who is 8 years old, the Court notes the following:

a. she has been in care for over 1000 days;

b. she is an outgoing and engaging young girl;

c. she performs very well academically;

d. she is very articulate and has a vocabulary beyond her years;

e. she regularly sees her mother although, as stated above, there have been breaks from these visits when the mother has been in treatment;

f. the mother states that her main challenges are “her inhibitions” and “easily being scared and nervous” (FCC assessment, p. 94);

g. the foster mother reported that she had a lot of “abandonment issues” and fear when she arrived at the foster home (FCC assessment, p. 95); and

h. the foster mother also reported that “she is fearful that she will be separated from her sister. Sometimes her anxiety will cause issues with her sleep and she will wake up crying” (FCC assessment, p. 95).

Dr. Floyd Wood

[53] Dr. Wood completed a FCC assessment that was released in July 2017. His private interview with J.S. and H.B. took place in July 2017; this was his last meeting with them.

[54] He was not asked to interview them with respect to their ability to testify in court. He indicated that for most children, testifying in court is quite stressful and can be a traumatizing process and requires support. He indicated that adults have confided in him that testifying in court was one of their worst childhood experiences. He spoke of children being in a formal setting to answer questions that are “too adult”.

[55] Before Dr. Wood commences his interview, he tells children that there are several rules:

a. they are not to guess at answers to the questions he poses;

b. they must acknowledge when they don’t understand;

c. they must correct him if he says something wrong; and

d. they must promise to tell the truth.

[56] The interview with J.S. can be summarized as follows:

a. J.S. appeared to be very comfortable with Dr. Wood and warmly greeted him by calling him “Dr. Woodonia” and later called him “Dr. Woody”;

b. she admitted to being an anxious person and added “who wouldn’t be in my situation”;

c. she loves her pets and is quite animated when talking about her animals;

d. she told Dr. Wood that she did not want go home to her mother and wanted to stay in the foster home and be adopted but “she knows that would ‘kill’ her mother” (“when asked why, she said “well, would you want to go back home to somebody who has ruined your life”. She elaborated that her mother was the reason she and her siblings have been in foster care on three occasions, and that she always seems to get a full year to improve and get them back” (Exhibit 6, p. 4 of 8));

e. she was “quite annoyed and upset by the situation” when Dr. Wood raised her relationship with J.S.; and

f. she would like to stay with her sister H.B., but if they were split up she would want frequent visits.

[57] With respect to J.S.’s emotional and psychological well-being, Dr. Wood stated the following:

a. he had difficulty to say whether she experienced trauma;

b. her adverse childhood experiences (ACEs) are difficult to score;

c. her advanced sexual nature with J.S. when she was five years old shows components of traumatization;

d. she is bit more assertive and more vocal with her opinions and he does not how she would respond to being asked to testify;

e. the FCC interview was her opportunity to have her voice heard;

f. it is not routine to ask children about their views regarding testifying and for him to assess whether they can testify;

g. she would have loyalty conflicts, as she knows that her mother knows that she wants to be adopted;

h. these loyalty conflicts could cause her to freeze;

i. he was uncertain of long term harm that would be caused during cross-examination, but predicted that she would feel some pressure and stress, given the possibility of hurting her mother or foster mother’s feelings;

j. he is not sure of the degree to which she is fearful, and not sure how she is coping with sexual history when she was four or five years old;

k. in cross-examination, she would have a perception of how she is treated;

l. in a vigorous cross-examination, it can be difficult for an adolescent who is trying to assert herself and could cause her not to participate rather than traumatize her; and

m. he is not sure how she would feel, as she has not seen her mother for a while.

[58] In summary, Dr. Wood is not in a position to predict what would happen if J.S. were required to testify. He set out J.S.’s vulnerabilities and indicated some of the risks that can occur if forced to testify.

[59] The following is the summary of H.B.’s private interview with Dr. Wood, which took place in July 2017:

a. she stated that she would like to live with her father so “he could help her mother if she needed help, and her mother would not be as sad because she would not be adopted”;

b. she reported “that her mother sometimes gets sad and cries on the phone with her when talking about CAS involvement and not having her home, which would make her sad as well.” However, she added that she does not cry because she is also “very attached” to the foster mother”;

c. in his testimony, Dr. Wood stated that H.B. did not appear to have been traumatized by events while living with her mother; she was fearful, as she did not want her mother to drink beer and host some of her boyfriends, but there is no indication that anything particularly traumatized her;

d. in terms of ACEs, she was in the gR. area—she was exposed to drug use, mental health and foster care, separated parents, and she had a father with criminal involvement;

e. it would be quite scary for H.B. to be in a formal procedure to answer questions, as this would make her mother very sad and could cause H.B. to freeze, given the loyalty issues;

f. she loves her mother and does not want to upset her;

g. there is a possibility of further harm, as she did not describe anything traumatic, except beer bottles and boyfriends, and she did not see interpersonal violence;

h. she is assertive;

i. she is struggling with the uncertainty with her future placement: “she worries about an adoption making her mother sad while also acknowledging that she enjoys being in the foster home” (FCC assessment, p. 101);

j. “if left unaddressed, these worries could lead to more serious self-esteem issues or a mood or anxiety disorder” (FCC assessment, p. 101);

k. he recommends that she continue her counselling at Wabano to deal with the stress associated with the changes and her “worries about her mother” (FCC assessment, p. 101).

[60] Both children:

a. are aware of their mother’s struggles with addiction; and

b. are aware of the FCC assessment and its recommendations.

[61] Dr. Wood was qualified as an expert in child and youth psychiatry. Dr. Wood said that testifying would be a stressful experience for the children and this is confirmed by the literature.

[62] Dr. Wood spoke of typical ACEs, which can include:

a. Physical/sexual abuse

b. Verbal abuse

c. Emotional abuse

d. Physical neglect

e. Emotional neglect

f. Parent with addiction

g. Parent with mental illness

h. Parental suicide

i. Criminal activity

j. Parental separation or divorce/ incarcerated household member

[63] If the children suffer from three or four ACEs, they have more risks as adults.

[64] Dr. Wood also was concerned with loyalty issues to their mother. The children are aware of their mother’s feelings regarding them being in care and would be torn if they had to tell the Court their wishes. J.S. would wish to stay in care and be adopted and be with H.B., who also wants to be with her sister.

[65] However, Dr. Wood did speak of accommodations that could be provided to the children, such as testifying by CCTV and having a support person. He did not indicate whether this would address the loyalty issue.

[66] In addition, he did not define “traumatized”.

Conclusion

[67] The Court needs to hear the children’s wishes and preferences, as these statements are relevant to the issues it has to decide.

[68] It is incumbent on the Society to take steps to ensure that these wishes and preferences are before the Court and to ensure that it can prove necessity in order to not have the children testify. If there is no agreement from counsel, the Society must lead the proper evidence in accordance with the leading cases.

[69] The legal system has a duty to protect children and ensure that the paramount purpose of the legislation is carried out: i.e.: “to promote the best interests, protection and well-being of children” (CYFSA, s. 1(1)).

[70] The Court does not accept the mother’s position that the availability of other individuals who can testify regarding an incident diminishes the requirement of necessity.

[71] Some cases have adopted a less strict requirement to prove necessity for the reception of hearsay evidence in child protection proceedings. See S.(E.) v. M.(D.) (1996), 1996 CanLII 11653 (NL SC), 143 Nfld. & P.E.I.R. 192 (Nfld. U.F.C.).

[72] Unlike the Children’s Aid Society, Region of Halton v. J.O., where the Society relied only on an affidavit of a worker who interviewed the two younger children on only one occasion and deposed that they were “nervous and scared” about having to testify again. They had testified at the preliminary hearing. Here we have the evidence of Dr. Wood, an expert in child and youth psychiatry, which speaks of a number of risks to them if the children were forced to testify.

[73] In Children’s Aid Society of London Middlesex v. ARM, 2017 ONSC 3037, one child was 15 years old; the Court found that there was no quality evidence tendered regarding the necessity issue (para. 39).

[74] In Children’s Aid Society of Algoma v. L.H., A.C., who was 14 years old, had already made a statement to the police officer. She had recanted her original allegations and the Society did not want to call her, as it would be traumatic for her to be “labelled a liar” (para. 24).

[75] Considering all the above, this Court finds that the Society has met the requirement of necessity. It is reasonably necessary to permit the out of court statements of the children to obviate the risk of the children being required to testify. The reasons are as follows:

a. J.S. has experienced some trauma in her past, as admitted by the mother in the FCC assessment;

b. no definition of traumatizing has been provided to the court. The Oxford dictionary defines “traumatize” as “subject to lasting shock as a result of a disturbing experience or physical injury”. The mother indicated that J.S. had PTSD, as diagnosed when she was a little girl. This event continues to haunt J.S. such that she does not wish to discuss it. Counselling has not helped her deal with it. Dr. Wood was not able to explore this further with J.S., who clammed up when discussing it. He did not know of traumatic events but they did see a lot of beer bottles at the mother’s residence;

c. this trauma is still painful to J.S. as her refusal to speak to Dr. Wood about it and Dr. Wood was a person she felt comfortable with in and in a setting that was comfortable with a person she trusted;

d. the Court should not limit the scope of examination of J.S. by not permitting counsel to examine J.S. on this question and this could raise some possible negative consequences;

e. both children have loyalty conflicts that may cause them to freeze when speaking about their wishes in court as they love their mother and are worried about making her sad;

f. the children have made numerous statements about their concern for their mother and how she would feel; for example, in her interview with Dr. Wood, H.B. reported that her mother sometimes gets sad and cries on the phone with her when talking about CAS involvement and not having her at home, which would make her sad as well;

g. the children’s comments strongly suggest that they experience stress when speaking about their views and preferences to others and worry that they worry about their mother being sad;

h. this could cause them to freeze and, as stated in Children’s Aid Society of Algoma v. L.H., one consideration includes that the party seeking admission must, among other things, satisfy that it will not get evidence of its claims before the Court;

i. there was no evidence of whether this risk would be diminished or eradicated if the children were to testify with aids;

j. Dr. Wood identified that the children have experienced some ACEs, although there were some “gR. areas” in the identification;

k. even though he could not find that H.B. had anything in her past that particularly traumatized her, he found it “difficult to say whether she had experienced trauma”;

l. Dr. Wood stated that for most children testifying in court is a stressful experience;

m. it would be difficult to put H.B. in a position where she had to tell the Court what she felt about her mother, as it would upset her mother;

n. J.S. understood that the FCC assessment was her opportunity to be heard;

o. Dr. Wood was uncertain on long term harm, as he does not know what questions will be asked of the children or how they would feel in a strange room with strangers; the children would likely feel pressured and stressed, given the possibility of hurting the mother or foster mother’s feelings;

p. he is not sure that J.S. is coping with her sexual history from when she was four or five years old;

q. Dr. Wood would not be able to say what J.S.’s reaction will be when testifying, given her lack of contact with her mother all year;

r. she would be very “unhappy” if asked questions about her brother, J.S.;

s. the Court is likely to find the history of J.S.’s relationship with her brother relevant, as it pertains to the mother’s care and supervision of her children; the Court knows of no authority that limits this type of questioning in a child protection hearing;

t. the Court finds that requiring the children to testify would cause more than just “discomfort”;

u. the children’s sense is that they have been given an opportunity to express their views and preferences during their extensive sessions with their case workers and Dr. Wood, where they discussed these views and preferences, as well as incidents in their past and present;

v. the Court finds that to force the children to face these issues in a formal court of law, with or without aids and supports, would cause them stress and possible harm;

w. the children have never testified in court proceedings, nor participated in videotaped or audio taped statements through formal process such as police or society; and

x. based on the above, testifying can be a disturbing experience that could cause harm to the children.

Reliability

[76] In dealing with threshold reliability, the Court will review the circumstances surrounding the statements made by the children to each involved individual.

Josephine Parke

[77] Ms. Parke is a child protection worker with the Society, where she has worked since 2007.

[78] The mother concedes the reliability threshold with respect to out of court statements made by the children to Ms. Parke. Therefore, the following statements will be entered into evidence for their state of mind, which express the children’s wishes and preferences.

[79] The statements are as follows:

1. August 11, 2017

H.B.

On August 11, 2017, I spoke briefly with H.B. and J.S. on the phone, after receipt of an email from the foster parent stating that the girls did not want to attend the upcoming visit with their mother. I note that they had recently attended their mother’s home for a visit, which was observed by the Family Court Clinic Social Worker.

During this telephone call, H.B. told me that "it was a little bit too much to go to the visit” the following day. She said that it “would be sad to see Mommy” and that it was “a little bit overwhelming”. She said that she was sad because “it was her mother” and because she “was being fostered by other people”. She said that seeing her mother was difficult.

1. August 11, 2017

J.S.

On August 11, 2017, I spoke briefly with H.B. and J.S. on the phone, after receipt of an email from the foster parent stating that the girls did not want to attend the upcoming visit with their mother. I note that they had recently attended their mother’s home for a visit, which was observed by the Family Court Clinic Social Worker

J.S. told me that she did not “like to see the change in Mom” and referred to Ms. S. as going “queerly”. She said that it was “sad to see (her mother) like that”. She said that, at the FCC visitation at the family home, she saw the house “torn apart…and things missing”. She said that her mother had “no satisfaction of happiness”.

[80] The Court, as gatekeeper, is prepared to permit these statements as evidence of state of mind as an exception to the hearsay rule because:

a. the statements were contemporaneous declarations of the children’s statement of mind;

b. Ms. Parke had a duty to record the interviews and to record them within 24 hours into the Child Protection Information System (CPIN);

c. she had no agenda or interest in the litigation;

d. she had no reason to fabricate evidence;

e. the statement set out the children’s mental or emotional state and there is no attempt by the Society to set out the reason for these feelings; and

f. the statements were not made under circumstances of suspicion.

[81] In addition, these statements are more in line with Parry J.’s description in Children’s Aid Society of St. Thomas and Elgin v. A.H., at para. 39:

Declarations of the declarant’s contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind.

Mindy Watson

[82] Mindy Watson is a resource worker who has been with the Society since 2011.

[83] The mother concedes threshold reliability. The mother admits that:

a. Ms. Watson was careful in her note taking;

b. she found an alternative to record her notes if CPIN was not available, i.e. she would enter them in Microsoft Word; and

c. she did not pose leading questions.

[84] As the gatekeeper of the evidence, the Court finds that the Society has met its burden of threshold reliability, as:

a. Ms. Watson’s conversations were recorded accurately;

b. she was an experienced child and youth worker and had worked with children extensively with the Society for seven years and previously with Robert Smart Centre;

c. she has a professional duty to accurately record her interviews with the children;

d. as required, she entered her notes promptly in CPIN unless it was unavailable, in which case she entered the notes in Microsoft Word on her laptop and uploaded them in a timely fashion;

e. she was confident that her recordings were substantially accurate;

f. she had no motive to inaccurately record her notes;

g. she was familiar with the children since September 2017;

h. she saw the children almost weekly and sometimes saw H.B. two times a week;

i. she was able to assess H.B.’s demeanor;

j. she describes the children being open with her, answering her questions spontaneously without prompting;

k. the children were easily engaged with her and were open with her and voluntarily provided their feelings to her;

l. her questions were open ended and not leading;

m. the discussions were conversational;

n. the children’s answers were natural;

o. she reported that the children had no communication issues;

p. H.B. greeted her with hugs;

q. generally her notes were summaries in paragraph form, which were sometimes word for word, with some quotations if quoting directly;

r. she only asked direct questions on phone calls;

s. many meetings were in private with no distractions;

t. the statements were made contemporaneously to her;

u. she had no agenda or interest in the litigation;

v. she had no reason to fabricate the evidence;

w. the statements were not made under circumstances of suspicion; and

x. the children were comfortable and familiar with Ms. Watson.

[85] The substantive reliability indicia include the following:

a. the children have been consistent regarding their concerns regarding mother;

b. their views regarding the kin placement have been consistent with what they told other workers; and

c. they have been consistent regarding their feelings for the foster home and liking the foster parents.

Phone Calls to Mother

[86] The mother is prepared to admit that the children’s statements made to her are admissible for the state of mind as to their views and preferences regarding phone calls to their mother.

[87] The Society requests that the statements to be entered for the truth of their contents. The statements deal with the children’s feelings regarding phone calls to their family.

[88] The statements are as follows:

Regarding H.B.:

In 2018:

a. March 24 – H.B. did not want to call;

b. April 7 – H.B. called her Papa and did not want to call anyone else;

c. April 20 – H.B. did not want to make the call;

d. April 28 – H.B. did not want to make the call;

e. May 19 – H.B. called Mom, D. and J.S., did not reach anyone – no one answered – she left messages;

f. May 26 – H.B. did not want to call mom;

g. June 9 – H.B. made the call but her mother did not answer.

With respect to J.S:

In 2018:

a. March 23 – J.S. did not want to make the call;

b. March 28 – J.S. did not want to make the call;

c. April 7 – J.S. did not want to make the call;

d. April 19 – J.S. did not want to make the call;

e. April 28 – J.S. did not want to make the call;

f. May 19 – J.S. did not want to make the call;

g. May 26 – J.S. did not want to make the call;

h. June 2 – J.S. did not want to make the call;

i. June 9 – J.S. did not want to make the call.

[89] The above statements meet the definition of state of mind. Accordingly, the above statements are admitted for the children’s respective states of mind.

Statements Regarding Incidents with Their Mother

[90] The Society wishes to include the following statements for the truth of its contents:

a. May (sic) 26, 2018, H.B. said her Mom called out her name while her class was outside playing soccer. She said she pulled down her hood from her sweater and everyone saw that she had no hair. H.B. said she felt super embarrassed and kids continued to make fun of her about it for the rest of the day.

[91] With respect to an incident with her mother, the mother is prepared to admit that she shaved her hair and she is prepared to agree that the child’s feelings can be admitted as to the state of mind.

[92] The Court finds it is relevant that the mother had shaved her head and this will be entered for the truth of contents. H.B.’s reaction is a feeling and hence will be admitted as state of mind.

[93] The Society seeks to enter, and the mother is prepared to admit, that the mother tried to engage H.B. by talking about pets. The Court admits the following statement for the truth of its contents:

a. October 11, 2017: she talked a lot about previous pets she had when she lived with her mom and how hard it was for her to leave them behind when she came into care. She talked about how her mom often uses that interest to pull her back into talking with her.

[94] The mother is also prepared to admit the statement below for both truth of its contents and state of mind:

a. November, 11, 2017: When I picked up J.S. from her visit her eyes were red and glossy. I asked J.S. if she was ok, she said she would be alright. She just basically had a screaming match with her mom. She said a lot of things were said and she is not sure if she feels better or not but she feels exhausted. She said she didn’t have the energy to talk about it all again.

[95] The Court accepts that the statement that J.S. had a screaming match can be entered for the truth of its contents. J.S.’s statement regarding her feelings regarding her argument with her mother and exhaustion is a statement dealing with her state of mind.

[96] The mother is prepared to admit the balance of the out of court statements made by the children to Ms. Watson for the truth of their contents, as set out below. The Court finds that the following statements go to the children’s state of mind:

a. November 30, 2017: During lunch I asked J.S. how she was doing lately she told me she has been alright. When I asked her what her plans are for this weekend she told me she was unsure but she was not attending the access visit with her mom. J.S. told me she thinks she wants to have bi weekly visits as she felt like weekly visits with her mom were too stressful. J.S. told me she finds the visits stressful and exhausting. J.S. started to tear up when she was talking about her feelings around visitation with mom. She said she is ok with visiting her brother J.S., Papa, H.B. none of them are the issue. She said the issue is her mom. J.S. said her mom hurts her feelings often and is mean. She said there is no one there to tell mom she is being inappropriate and shut down the conversation.

b. January 6, 2018: She said her last couple of visits have not gone well.

c. April 19, 2018: J.S. then started talking about coming into care. She said she was told it would only be a week and she could bring her mice. J.S. said that clearly didn’t happen as she is still in care now. I asked J.S. what's changed and she said everything with her and nothing with mom. I told J.S. that part of the reason why she is still in care. J.S. said from the start coming into care was hard as she has to wait a long time for her first placement and then she wanted to move. I told J.S. I had no idea she wanted to move in the beginning and J.S. said ya. I asked her how she feels now and she said she's glad she didn’t move because she grew to like her foster parents. She said that changed a few months into her placement. We discussed positive things that have occurred since coming into care.

[97] The Society seeks to admit the following statements made to Ms. Watson for state of mind. Accordingly, the following underlined statements are admitted for the children’s state of mind:

With respect to access: H.B.:

December 14, 2017, I asked H.B. to bring me up to date. She told me she has been feeling really sad lately. She told me she cried so much she used 16 Kleenexes. I asked H.B. what was making her feel so sad. She told me she felt like a "nobody" and was very "confused" as to why mommy cancels visits. She said she just wants to understand the situation. …. H.B. said she forgives her mom for hurting her feelings but she also knows it will not be the last time she gets her feelings hurt by her.

With respect to the kin placement: H.B.:

April 14, 2018, on the way to Bayshore I asked the girls for any updates. J.S. told me that C. and her husband have put a request in for a kin placement with the girls. I asked the girls how they felt about that and … H.B. said she hasn't known them as long as J.S.. H.B. said her French teacher has been supportive too. H.B. said this is why she has not been feeling well as she's been feeling stressed.

April 28, 2018, when I arrived to the foster home to pick up the girls both of them were in a good mood and said they were excited about going down town. In the car I asked the girls how the week has been. Both said it had gone well. J.S. asked if I heard about C. and P. putting an adoption plan in for them. I reminded the girls that they shared that with me last week. But I asked them how they were feeling about it now that they have had more time to process it. H.B. said she is worried if it does not work out she cannot return to L. and A.’s [foster parents]. I told the girls we cannot predict that kind of information. But I did tell them that as a CYC I get to continue to support them through this journey and we will all work together to provide as much support as possible. H.B. joked and asked if I had her back and I said yes of course. J.S. laughed and said that’s good news.

June 9, 2018, H.B. said she feels very excited about her upcoming move but also feels a bit sad at the same time. She said it is starting to feel strange at home with their stuff being packed up. H.B. said she didn’t even want to eat ice cream the other night because she just felt funny. H.B. said she knows she will still be in touch with her foster parents and asked if I will still be working with her when she moves. I told her I will absolutely still be seeing them and in fact I will be there on the day they move into their new house. H.B. said she could not wait to see her new room and discussed how she is going to decorate it. H.B. also mentioned being excited to be a big sister and can’t wait to find out the gender of the baby.

With respect to access: J.S.:

October 11, 2017: J.S. said at this time she is angry and is not ready to have that kind of relationship. She just wants space for the time being.

October 21 2017: I took J.S. out in the community for the day. We went shopping for craft supplies and made snow globes at the office. J.S. mainly chatted about animals, her art class and peers at school. J.S. mentioned being open to seeing her mom at an upcoming access visit. She said she was not sure what made her change her mind except thinking about the sadness her mom must feel.November, 30 2017: During lunch I asked J.S. how she was doing lately she told me she has been alright. When I asked her what her plans are for this weekend she told me she was unsure but she was not attending the access visit with her mom. J.S. told me she thinks she wants to have bi weekly visits as she felt like weekly visits with her mom were too stressful. J.S. told me she finds the visits stressful and exhausting. J.S. started to tear up when she was talking about her feelings around visitation with mom. She said she is ok with visiting her brother J.S., Papa, H.B. none of them are the issue. She said the issue is her mom. J.S. said her mom hurts her feelings often and is mean. She said there is no one there to tell mom she is being inappropriate and shut down the conversation.

January 6, 2018: J.S. told me she does not want to attend any more access visits with her mom. She told me she was going to contact her worker to chat about this. She said her last couples of visits have not gone well and she does not want to continue going at this time.

J.S. asked me if it were possible to remain in foster care at L.'s and A.'s until she is 18. She asked if she could stay or be kicked out before then. I told J.S. I was not sure and could answer that question for her. She then asked if CAS provides financial support for college. I told J.S. it depends on her status in care so we will not know the answer to something like this right now. She asked if L. could pay for her to go to college as well. J.S. asked me if it was ever ok to get financial support from family members when's she’s 18 to help pay for a car or apartment. She wondered if the money would be taken from her. I told J.S. it would be great if she had support in the future to help pay for things like college or her first car it’s not something we would view as negative.

J.S. told me her future dream right now is to stay at her foster home in care until she is 18. Then she wants to move out to Plantagenet in her own apartment. She wants to be in the country so she could purchase her own horse and take care of it out there. She said she will need a car to get to school every day. She understands there are a lot of factors she has not thought of but she is looking at making a 5 year plan. She understands she needs a job to be able to complete her goals. J.S. does not want to share her plan as she realized it could be a fantasy but does not want anyone to shut her down right now.

April 19, 2018: J.S. then told me in the car she has not spoken to her mom since the incident or maybe even before that. She said she feels like she hasn’t spoken to mom in 3 months. J.S. told me she does not want to talk to her mom because it is always the same. Mom hasn’t changed; she cut off all her hair so she thinks she's going nuts. She said her conversations with mom make her always feel sad and depressed so she does not want to do them.

J.S. then started talking about coming into care. She said she was told it would only be a week and she could bring her mice. J.S. said that clearly didn’t happen as she is still in care now. I asked J.S. what's changed and she said everything with her and nothing with mom. I told J.S. that part of the reason why she is still in care.

J.S. said from the start coming into care was hard as she has to wait a long time for her first placement and then she wanted to move. I told J.S. I had no idea she wanted to move in the beginning and J.S. said ya. I asked her how she feels now and she said she's glad she didn’t move because she grew to like her foster parents. She said that changed a few months into her placement. We discussed positive things that have occurred since coming into care.

With respect to the Kin Placement: J.S.:

April 14, 2018: On the way to Bayshore I asked the girls for any updates. J.S. told me that C. and her husband have put a request in for a kin placement with the girls. I asked the girls how they felt about that and J.S. said she's not sure what to think. She said she's known them for at least 8 years. J.S. said she just feels a bit sad, confused and numb. She said she can't concentrate on anything at school. I asked J.S. if her teachers are aware and could be supportive in any way. J.S. said they all have been great.

J.S. said it's hard because L. and A. were going to adopt them, but now they have to see what happens. Both girls said they are taking their time to process the new information. They both said they had some time off school.

April 28, 2018: When I arrived to the foster home to pick up the girls both of them were in a good mood and said they were excited about going down town. In the car I asked the girls how the week has been. Both said it had gone well. J.S. asked if I heard about C. and P. putting an adoption plan in for them. I reminded the girls that they shared that with me last week. But I asked them how they were feeling about it now that they have had more time to process it. J.S. said she is feeling good about it now and she’s ok.

May 19, 2018: When we were out shopping J.S. said she is looking forward to moving into C.’s home and cannot wait to decorate her room. J.S. used my phone to take photos of things she is interested in for her new bedroom J.S. also talked about being excited to have new pets at her new place.

June 9, 2018: J.S. told me she is still trying to figure out what she is going to wear to her. She said she invited C. and P. to her graduation and is feeling really excited about it coming up soon.

J.S. asked me to email her all the pictures she took the last time we were out in the community as she is still planning how she will be designing her new room. She said she is very excited but feels a bit nervous at the same time. J.S. said she is not worried about losing touch with her foster parents. Right now they are trying to decide items they can leave behind to have at the home when they visit. J.S. said when she first arrived at their home she had nothing and now she is leaving with all kinds of things. She said her foster parents have taken really good care of her and her sister. J.S. said she is looking forward to moving in with C. and P. because she has known C. for a long time and she is “the nicest person in the world”. She said she is so kind and caring so she thinks everything will be ok.

Carol McInnis

Mother’s Position

[98] The mother objects to the inclusion as evidence of the children’s out of court statements made to Ms. McInnis on the basis that the Society has failed to prove threshold reliability.

[99] The mother submits that the manner of her testimony, coupled with the abrupt change of her note taking after the April 2018 court order requiring the Society to produce hearsay statements calls into question all of the children’s out of court statements made to Ms. McInnis. In April 2018, Ms. McInnis changed her note taking method by placing the statements from the children in quotations rather than merely summarizing their conversations as was her practice before then. In addition, she did not take appropriate measures to preserve her notes when she was not able to post them on the CPIN system within 24 hours.

Introduction

[100] Firstly, Ms. McInnis has been a child protection worker for 17 years and speaks of a long history of note taking.

[101] She has worked as an investigations worker, family worker, and child in care worker. She is currently a child-in-care worker as well as a family worker.

[102] She has been involved with J.S. and H.B. since October 4, 2016. The children know her very well.

[103] As a child in care worker, the ministry of child and family services requires that she meet with the children in care of the society once every three months. She has met with J.S. and H.B. every month, if not more often. If she receives a call from the foster parent who has questions, she will go see them.

[104] She has met them at their respective schools, foster home, and in the community. Her focus is on the seven dimensions of: health, education and recreation, identity, family and social relationships, social presentation, emotional and behavioural development, and self-care.

[105] She has connected the children to counselling resources that were culturally appropriate, provided them with community cultural information and opportunities, provided extra-curricular activities, and ensured that their health needs were met.

[106] She describes J.S. as very cautious with new people until she becomes familiar with them. She can be very emotional and wants to know what is going on. She wants a plan in place and wants to feel secure. She says J.S. can express her emotions in her body, language, and facial expression.

[107] H.B. is “bubbly and smiles a lot”. She has self-confidence and is very intelligent and communicates well. She is engaging and initiates conversations a lot.

[108] The Court finds the following procedural reliability indicia:

a. she would have had a conversation of the importance of telling the truth;

b. she has had training in interviewing children, such as “Looking After Children” and other programs with the Ontario Association of Children’s Aid Societies;

c. she typically jots notes, including quotations, on her phone or on paper and inputs the conversations into her computer the same day or the next working day;

d. when she meets with a child, her practice is to put her notes on her phone or on her Notebook. The notes are deleted, as required by internal policy, once they are placed on CPIN data base. This is required within 24 hours of taking the notes, but at times it is not available, such as on a long weekend. Once the notes are placed on CPIN, they cannot be altered;

e. she follows the child’s lead in their discussions;

f. she did not experience any barriers while speaking to the children and would rephrase responses at times;

g. she met with the children privately at the school, sometimes at the foster home or in her car (stationary or parked). During some visits, the foster parents were present, e.g. meeting of October 4, 2017, as it was a meeting to discuss the FCC recommendations;

h. the children were coherent, always focused and there was no background noise;

i. the start date of her note taking is automatically recorded when she starts her notes and the end date is automatically inputted when the notes have been posted on CPIN;

j. it is not her practice to write the question, though she does use quotation marks on occasion. In her CPIN training, she was told to make concise logs and write in more general terms so the notes can be used to recollect the meeting;

k. she tries to paraphrase, rather than quote, what was said;

l. there is no preference of where she meets with the children;

m. in response to mother’s counsel’s question as to whether she “sections off” portion of her note, she respond that she follows ministry guidelines, which require her notes to be brief and concise;

n. she does not know why H.B. wanted to stay with J.S., but lets her offer the information freely if she wants. There were no signs of coaching;

o. J.S. would be met often at school and would also smile and greet her. At the foster home, J.S. shows her horse figurines;

p. she met with H.B. regularly and right after the release of the FCC assessment. The OCL representative met with J.S. and she met with H.B. Then she spoke to J.S. regarding the FCC recommendation; and

q. her explanation for blocking off the March 5, 2018, meeting was that they discussed safety plans, which J.S. had come up with independently.

[109] The Court has the following concerns regarding procedural reliability:

a. on April 17, 2018, Ms. McInnis used more quotes, but does not give a reason;

b. the Court is not prepared to speculate and accept the mother’s theory that Ms. McInnis changed her methodology upon being told about the hearsay order requiring that the Society produce the statements from the children. The mother submits that this inconsistency and refusal to give a reason for the change affects credibility. She was trying to shed herself in a better light before the Court;

c. it would have been helpful to the Court to know why she changed her method of note taking and adding more quotes;

d. the absence of an explanation for the change diminishes Ms. McInnis’ credibility marginally; and

e. the change in note taking is only one factor that the Court will consider in determining threshold reliability.

[110] In addition, the Court finds the following corroborative evidence. In terms of substantive reliability, both children’s statements regarding their concern with their mother’s history and views about being in care were consistent; their statements are specific in nature rather than general. These are consistent with other utterances the children have made to other protection workers and Dr. Wood.

Conclusion

[111] In terms of procedural reliability, the Court finds the evidence of Ms. McInnis to have been given in a straightforward manner. She admitted when she was not able to record her notes within 24 hours on CPIN, as required by internal procedure.

[112] She is an experienced worker and has received training in interviewing children. She was confident that her notes were substantially accurate. She had a duty to make notes and then to transcribe them into the society’s computer system within 24 hours.

[113] The Court does not find fault that she does not email herself the notes and accepts that she does not know how or does not have the capability of doing so. This is of no consequence.

[114] She said that she used open ended questions. She did not ask leading questions and she was confident that the children were voluntarily making these statements to her. The children were comfortable with her, as they had developed a rapport with her since October 4, 2016. The children spontaneously made statements to her about their relationship and how they were feeling without prompting. The children are articulate and she did not believe that she misunderstood them or that they misunderstood her. These interviews took place in person on a regular basis.

[115] I find it of no consequence that she did not write the questions down. The children are 8 and 13; both are articulate, and H.B. is particularly articulate for her age. Both children are engaging, open, and forthcoming not only with Ms. McInnis, but also with Ms. Park and Ms. Watson.

[116] The statements were made in private. She did not feel that the children were being coached or influenced.

[117] Even though Ms. McInnis, for some reason, started to place more of the children’s statements in quotes, the Court finds that, generally speaking, Ms. McInnis’ summary of the children’s statements provides enough particularity and conciseness to permit the Court to determine the true synopsis of what was said by the children.

[118] Whether a statement was in quotation marks or not does not diminish the worker’s recounting of the children’s statements to her. She has been taking notes for the past 17 years, in accordance with ministry standards, which require concise statements.

[119] She has known the children for two years and there is no reason given for her to fabricate any of her notes.

[120] When the Court determines what is in the children’s best interests, the Court is required to consider the children’s views and preferences, and therefore it is imperative that the children’s support people be able to hear these statements and ensure they follow the ministry guidelines.

[121] Hence, only some of the following statements will be entered into as evidence for the children’s state of mind. The reasons for this are set out below in italics:

a. October 4, 2017 – J.S. wanted to be adopted if it were her current foster parents

Admissible and expresses specific views and preferences

b. November 24, 2017 – J.S. expressing that she just wants to move on

Admissible and expresses specific views and preferences

c. December 18, 2017 – J.S. expressing views on wanting to be adopted by the foster parents and on where she wants to attend school

Admissible and expresses specific views and preferences

d. December 18, 2017 – J.S. expressing frustration with things taking too long

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

e. February 16, 2018 – J.S. expressing frustration over CAS involvement

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

f. March 5, 2018 – J.S. expressing frustration about being in limbo and indicating she does not want to see or talk with her mother right now

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

g. April 17, 2018 – J.S. expressing frustration with respect to the kinship planning

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

h. May 9, 2018 – J.S. expressing that she does not want to have anything to do with her mother

Admissible and expresses specific views and preferences

i. May 15, 2018 – J.S. expressing that she called her mother and found it difficult and that she did not know when she would be calling her mother again and stating that she does not want to attend visits at this time

Admissible and expresses specific views and preferences

j. October 4, 2017 – H.B. expressing frustration over the process and length of time

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

k. December 18, 2017 – H.B. expressing frustration with her mother

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

l. November 23, 2017 – H.B. expressing that she does not want to be split up from her sister

Admissible and expresses specific views and preferences

m. January 22, 2018 – H.B. expressing that she wanted to live with her sister

Admissible and expresses specific views and preferences

n. February 14, 2018 – H.B. expressing that she wanted to live with her sister

Admissible and expresses specific views and preferences

o. Feb 16, 2018 – H.B. expressing frustration over CAS involvement and concern for her mother

Not admissible as not particular – too general a statement and does not tell the Court exactly what was said

p. March 5, 2018 – H.B. expressing that she wanted to live with her sister

Admissible and expresses specific views and preferences

q. March 5, 2018 – H.B. expressing that she wants her access to be supervised

Admissible and expresses specific views and preferences

r. April 17, 2018 – H.B. expressing being happy about kin plan and no negatives and no worries

Admissible and expresses specific views and preferences

s. April 17, 2018 – H.B. expressing that she wants to decide whether she will make calls on a weekly basis, saying sometimes she is not in the mood

Admissible and expresses specific views and preferences

[122] The Society seeks to include these underlined statements for truth of their contents. This evidence will not be admitted; the reasons for this are set out below in italics:

a. December 18, 2017: When asked “Tell me about your last visit with your family”, H.B. responded that it was “kind of disappointing”. She continued without any comments from me and stated that her brother J.S. had looked into his bag and commented that he still had a weed grinder in it. H.B. shared that her mother had responded that her brother J.S. shouldn’t show that to J.S. and H.B.

I am not convinced of the relevance and materiality of this evidence and it will assist the Court in its final determination. Therefore, the Court will not admit this evidence.

b. April 17, 2018: I then asked, "Who do you know who squabbles?" H.B. answered, "Mom - when she had boyfriends. They would squabble and it was a disaster." H.B. then (sic) stated: "The day after tomorrow I see Mom because it’s every second Wednesday". I asked how the visits were going. H.B. replied "good" then stated: "Not the last one. This girl bumped into mom and she said sorry and mom said sorry and then the girl said -I guess someone doesn’t smile.” H.B. stated that she heard this. She continued “That kind of ruined my visit. Mom came back in our room and brought bread and butter to me and then she went out to talk to the girl and basically told her off". H.B. stated that she didn’t hear this but knows it happened. I asked how she knows this and H.B. stated: "I know my Mom and I know the things she does. After she came back and I ate some spaghetti and then she left again stating that she was going to talk to S. (CYC) about that".

This evidence comes from the mother to the child and hence double hearsay. The court is not prepared to admit this evidence.

Dr. Floyd Wood

Introduction

[123] Dr. Floyd Wood is a forensic psychiatrist who has been at the Family Court Clinic for the past three years. He was qualified as an expert in child and youth psychiatry. He completed the assessment in this matter which was released in July 2017. Part of the conduct of his assessment involved a private interview with each child. J.S.’s interview took place on July 24, 2017, and H.B.’s took place on July 25, 2017.

[124] During the interview with J.S., he took notes on his computer and then entered them into his network as required by his internal policy. He took notes after his interview with H.B. as she was younger and did not wish the computer to distract her during the interview. He later included the notes in the network.

[125] Firstly, the Court finds that the Society has met the test for procedural reliability of the statements made to Dr. Wood as:

a. He confirmed he had his computer when he met with J.S. as she is older but not with H.B. as she could be distracted by it at her age;

b. he has a professional obligation to take notes;

c. he posted his notes on the central system as soon as possible as required by his professional standards;

d. he has no reason to fabricate the evidence;

e. he is confident he understood the children and they understood him;

f. he had a good rapport with the children and they readily engaged with him;

g. he had made the children to promise to tell the truth; and

h. the children were articulate and able to express their views and be open with him.

[126] The Court finds that there is substantive reliability regarding the statements going to the children’s state of mind:

a. the children’s statements are consistent to what was told to the other workers; and

b. the children have repeated these views and preferences on numerous occasions with the same wording.

[127] The Society is requesting that the following statements be entered for the state of mind exception:

FOR J.S. When asked about what some of the good things were [about the foster home], she said she loved the foster parents, routine and structure, and everything about it. She stated there was nothing she needed to change about the foster home. She also stated she did not want to go home to live with her mother, and that she wanted to stay in the foster home.

The child’s views and preferences about where she wishes to live

She added that she would to be adopted, but she knows that would “kill” her mother.

The child’s view and preferences about adoption

The child’s feelings of worry with respect to impact on her mother

When asked about how she felt about that [the foster parent wanting to foster and not adopt] she appeared to be slightly tearful and said that she was used to being tossed around like being in a pinball machine. However, she did not want to return home.

The child’s feelings about the lack of permanency

The child’s view and preferences about where she wishes to live

She indicated that she would like to stay with H.B., but if we were to split them up she would want frequent visits.

The child’s views and preferences with respect to her sibling

J.S. advised again that she did not want to return home to her mother, and that she was old enough and would refuse to return home to her mother’s.

The child’s views and preferences about where she wishes to live

When asked why, she said “well would you want to go back home to somebody who has ruined your life?”

The child’s feelings about her mother

J.S. reported that she did not like her mother using

The child’s feelings about her mother using cannabis

She [J.S.] felt the visits [with her mother] were going “okay” but she added that she did not particularly like them

The child feelings about access

She stated that she would experience a tight feeling in her gut whenever she arrived to the visits, and that it would stay or slightly subside once in the visit.

The child’s feelings about access

J.S. also reported that she would have concerns if H.B. were to reside with their mother again.

The child’s feeling about her sister living with her mother

FOR H.B. When asked how she felt about other adults making suggestions about who she could live with, she said she felt “good” about it and that she would like to live with her father.

The child’s views and preferences about where she wishes to live

When asked why she said it was because he could help her mother, and her mother would not be sad because she would not be adopted.

The child’s feelings of worry that her mother needed help and would be sad

She added that she felt uncomfortable during these occasions.

The child’s feelings of discomfort with respect to the mother drinking

H.B. also reported that her mother sometimes gets sad and cries on the phone with her when talking about CAS involvement and not having her at home, which would make her sad as well.

Also state of mind in relation to the child’s feelings about her mother speaking about CAS involvement

[128] The mother is consenting to the statements but requests that Exhibit 6 be included, which contains the complete notes from the interviews with the children.

[129] However, some of the notes in Exhibit 6 also include statements that the Society is seeking to be admitted for the truth of their contents. The statements are set out below.

[130] The Court accepts that Exhibit 6 notes properly reflect the children’s statements as they are Dr. Wood’s complete notes and hence are more comprehensive.

[131] Subject to my rulings regarding statements which speak to truth of its contents as set out in the chart below, the statements of the children contained Exhibit 6 shall be entered for the state of mind of the children. These were provided to Dr. Wood with the children’s perspective which informed Dr. Wood in forming his opinion in the FCC.

[132] The Court makes the following rulings regarding the statements by J.S. that Society seeks to enter for the truth of their contents; the Court’s rulings are in italics below:

1. She elaborated that her mother was the reason she and her siblings have been in foster care on three occasions, and that she always seemed to get a full year to improve and get them back.

The Court finds that this is admissible as it is state of mind evidence

The child’s description of living with her mother

2. She suggested that her mother’s personality would frequently switch, particularly after the apprehension. She provided an example of when she had her mother attend a horse show recently, and she was there with the foster mother, grandfather, her brother J.S. and H.B. She said that her mother was unusually quiet and somewhat irritable, being rude to the foster mother and her at times.

The Court is not prepared to accept this evidence as to the truth of its contents, as it lacks substantive reliability. There is no date and location or specific details regarding the circumstances.

The child’s description of a visit with her mother

3. J.S. further reported that her mother’s presentation today for the visit was nothing like her, and she had no idea what was going on with her mother. She explained that her mother never acts kidlike and excited around them.

The Court accepts that this is admissible as it goes to the child’s state of mind.

The child’s description of the FCC visit with her mother

4. J.S. further stated that her mother was using cannabis leading up the apprehension, and that she had witnessed her mother doing this. She elaborated that her mother’s boyfriend, R., had a prescription for cannabis, and she was able to get it from him.

The mother is prepared to consent to the fact that she used cannabis before the children’s apprehension.

The Court does not admit the statement regarding R. as there is no substantive reliability regarding this statement and the Court cannot conduct this test.

The child’s description of living with her mother

5. She reported that she also witnessed her mother in significant states of intoxication, where she would pass out and be vomiting, such as when they were at the cottage.

The Court is very concerned regarding the general statement and does not permit its admission into evidence.

There are no details, regarding time, location, who was present during the intoxication. The child’s own words regarding the “state of intoxication” were not used and hence will not be admissible.

The child’s description of living with her mother

6. J.S. said that R. was perhaps one of the better boyfriends her mother ever had, where he actually had a home, a job, and a cottage. She also said that he was nice and would take care of her mother whenever she was intoxicated. The only complaint about him was that he provided her mother with cannabis.

The Court accepts this as the child’s state of mind, but will not accept the last sentence as the Court is unable to verify substantive reliability regarding this statement.

The child’s description of living with mother

7. J.S.’s concerns in relation to H.B. living with her mother were because it would prevent H.B. from leading a fulfilling and stable life, and that she would be exposed to a similar pattern to what she and her brother, J.S., have gone through.

The Court accepts this statement as to state of mind.

The child’s description of being exposed to an unstable parent, going through a pattern with her mother.

[133] The Society is seeking to have the following statements from H.B. admitted for the truth of their contents, for the following purposes; the Court’s rulings are in italics below:

1. H.B. indicated that she lives in a foster home with J.S. and the foster parents. She was aware that a foster home is a place where children go when their mother “has no patience and cannot take care of them”. When asked how she knew that, she said that her mother told her this.

The Court accepts the child’s state of mind as to why she was in a foster home.

The child’s description of her mother’s statement of why she was in care

2. H.B. elaborated that her brother would throw and smash glasses and yell and curse at their mother while their mother would yell back and tell him to go to his room.

The Court will not admit this statement, as there is no context, date, time, or place. There are no quotes from the children setting out the description of the incident(s).

The child’s description of conflict in the home

3. When asked about what she would like to change about her mother’s home if she were to go back, she stated that she would want there to be no beer bottles in the home, for her mother to not have any boyfriends in the home, and for her mother to stop yelling and being angry.

The statement borders on truth of its contents and state of mind as the child’s feelings come from her observations that can go to the truth of its contents.

For the Court to accept the statements regarding beer bottles, boyfriends and mother “yelling and being angry”, the Court must find substantive reliability.

There is consistency regarding the issue of beer bottles at the mother’s home, as there is other evidence regarding many beer bottles in the home.

The desire not to have boyfriends is a state of mind as it goes to her desire and feeling. However, the Court has serious concerns regarding the general statement that the mother yells and is angry being admitted for the truth of its contents. There is other evidence regarding the children’s concerns regarding their mother’s temperament.

There are other specific hearsay dangers raised by those aspects of the statement, as it assumes that the mother yells and gets angry often. Based on the circumstances and these dangers, the Court must consider alternative, even speculative, explanations for the statement. Children’s experience of yelling and getting angry is difficult to measure. A child can be sensitive to what they perceive as a parent’s anger and yelling. It could appear be substantial or minimal. Not enough details are provided.

Also, the Court must determine whether the corroborative evidence led at the voir dire rules out alternative explanations such that the only remaining likely explanation for the statement is the child’s truthfulness about, or the accuracy of, the material aspects of the statement. The Court cannot find it with respect to this statement and hence it is not admitted.

The child’s description of living with her mother in the form of list of concerns

4.When asked about beer bottles, she indicated that her mother would drink beer on occasion and act differently

The Court accepts this statement for truth of its contents for reasons stated above.

The child’s description of her mother drinking

5. Whenever her mother consumed beer, her mother’s boyfriend would drive them to their grandfather’s home, or J.S. would call their grandfather to pick them up if the boyfriend was also drinking.

These statements will be admitted for the truth of its contents, as there is other evidence to confirm the drinking of beer and that the children would go to their grandfather’s on those occasions. There is no other evidence.

The child’s description of her mother drinking

5. She also reported that her mother used to drink a lot a long time ago, and that it started again prior to her and her siblings going into CAS care.

This statement is too vague with no timing. What is a “long time ago”? The children have been placed in care on three occasions and which time is H.B. referring to?

The child’s description of her mother drinking

6. H.B. further reported that it was difficult having a mother that always yelled and was angry, although she added that her mother never yelled at her.

This will go in for state of mind.

The child’s description of her living with her mother

7. H.B. also reported that her mother sometimes gets sad and cries on the phone with her when talking about CAS involvement and not having her at home, which would make her sad as well.

This will go in for state of mind. The mother is prepared to consent to this statement going into evidence.

The child’s description of the mother speaking about CAS involvement

[134] Counsel will address me with respect to whether the evidence at the voir dire will form part of the evidence of the trial proper.

Justice A. Doyle

Released: 2018/07/16

COURT FILE NO.: FC-10-1932

DATE: 2018/07/16

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(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.

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD YOUTH AND FAMILY SERVICES ACT, R.S.O.

AND IN THE MATTER OF J.S. and H.B.

Cheryl Hess, for the Office of the Children’s Lawyer

BETWEEN:

M.S., E.B, and D.O.

Respondents

Deborah Bennett, for the Children’s Aid Society of Ottawa

Cedric Nahum, for the Mother

HEARD: June 25, 26, 27 and 28, 2018

Justice A. Doyle

Released: 2018/07/16