COURT FILE NO.: C266/12-07

DATE: August 5, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Children’s Aid Society of London and Middlesex

Applicant

• and -

A.J.F., R.P. and Carol Summers, Band Representative, Munsee-Delaware Nation

Respondents

Georgia Kortas for the Society

Salim J. Khot for A.J.F. R.P. in person Carol Summers in person

HEARD: February 25, 26, 27, 28, 2020; and April 19, 20, 21, 22, 23, 27, 28, 29, 30, 2021

MITROW J.

OVERVIEW

[1] This was a trial of the status review application commenced by the applicant, Children's Aid Society of London and Middlesex (“the Society”), issued October 23, 2018 regarding the child, K.R.P., born in 2016 (“the child” and sometimes referred to as “K.”).

[2] The child is the daughter of the respondents, A.J.F. (“the mother) and R.P. (“the father”).

[3] This trial spanned a significant period of time, starting in February 2020, at which time it was adjourned to March 30, 2020 for continuation. The pandemic intervened in mid-March 2020, causing a widespread cancellation of cases scheduled for hearings in all courts in Ontario.

[4] The trial in this case resumed and was completed during April 2021 and was conducted virtually with all parties, counsel and court staff present via video conference.

[5] Prior to the pandemic, the Society had completed its case when the trial was adjourned in February 2020. As a result of the long hiatus, the Society was permitted to reopen its case to provide an update as to intervening relevant events.

[6] As explained below, I concur that the final supervision order placing the child with the parents, subject to Society supervision and terms and conditions, should be terminated and replaced by a final custody (or “parenting”) order made under s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”). The focus of the trial and the issues raised in the evidence centered on the competing plans of the parents as to the parenting order that should be made under s. 102.

[7] There was also a motion for contempt brought by the mother that had been adjourned to be dealt with by the trial judge.

[8] For reasons that follow, the father shall have primary care of the child and sole decision-making responsibility for the child, except for education subject to conditions, and the mother shall have parenting time with the child as specified in the order below. Any outstanding motion for contempt brought by the mother is dismissed.

TRIAL EVIDENCE

[9] The Society’s evidence included a number of trial affidavits from Society child protection workers that constituted a particular worker’s evidence in-chief. Each worker, who signed a trial affidavit, was present at trial to give oral evidence that included cross-examination. The mother also filed one trial affidavit that was part of her evidence in-chief.

[10] Evidence contained in an affidavit for use at trial has to meet the condition that it would have been admissible if given by the witness in court: r. 23(21)(c) Family Law Rules, O. Reg. 114/99[^1]. This means that a trial affidavit cannot contain inadmissible hearsay evidence. Justice Harper, in Ward v. Swan, 2009 CarswellOnt 243 (Ont. S.C.J.), stated as follows regarding general hearsay evidence:

General Hearsay Evidence

[2] Absent an exception, hearsay evidence is not admissible. Hearsay is an out of court statement that is offered to prove the truth of its contents. The foundation of the court’s concern over hearsay is the inability of the court to test the reliability of the out of court statements. That concern is often expanded in many judicial decisions to include statements not made under oath and statements that are not subject to cross-examination by opposing counsel. Further, concern arises over determinations of credibility where the court is unable to cross-examine the demeanour of the declarant.

[3] Hearsay is therefore inadmissible unless the evidence falls within one of the traditional exceptions to the hearsay rule or the evidence is admitted under the principled approach to hearsay after the court has ruled that the requirements of necessity and reliability have been met. See: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92.

[11] The Society trial affidavits did contain inadmissible hearsay evidence. This was mentioned by the court during the trial. Although few, if any, objections were taken by the respondents, I have not considered any inadmissible hearsay evidence contained in the trial affidavits.

[12] There was oral evidence at trial including, in particular, from both parents and the father’s two witnesses, about statements made by the child. None of these statements attributed to the child was sought to be introduced for the truth of its contents. Issues relating to necessity and reliability were not canvassed and no voir dire was held in relation to any of the child’s statements: see R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.) and Ward v. Swan, supra.

[13] Accordingly, none of the statements attributed to the child is evidence as to the truth of its contents.

THE EXISTING FINAL ORDERS THAT ARE THE SUBJECT OF THE CURRENT STATUS REVIEW APPLICATION

[14] On April 5, 2018, McArthur J. made a final six month supervision order pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 then in force, placing the child in the care of both parents and subject to supervision by the Society and subject to terms and conditions as set out in the order.

[15] Further, this order also found: (a) the child to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act (now s. 74(2)(b)(i) of the new Act); and (b) that the child is an “Indian or native person” and that the Munsee-Delaware Nation is the child’s Band.

[16] Utilizing the terminology of s. 90 of the Act that came into force April 30, 2018, the child is a First Nations child.

[17] The supervision order provided that the issues of parenting were adjourned to the May 2018 trial sittings.

[18] On May 17, 2018, Vogelsang J. made a final order that the parents have joint custody of the child and that provided for a regular parenting-time schedule on a two week rotating basis that resulted in the child spending equal time with each parent. Pursuant to the parenting schedule, the child would not spend more than three consecutive days with each parent.

[19] Pursuant to a motion brought by the mother for an interim order in the current status review application, and prior to the trial resuming, Henderson J. made an interim order dated November 6, 2020 that included a provision changing the parenting-time schedule to a week-about with each parent, with the exchanges to occur at 6 p.m. on Friday. That interim parenting schedule continued until trial.

THE MOTHER

[20] The mother was born in 1991. She was age 30 at the conclusion of the trial. In terms of heritage, the mother describes herself as connected to the Caldwell First Nation through her own mother. The mother’s father was not First Nations.

[21] The mother has two older children from previous relationships. Her eldest child, K.1, was born in 2012. K.1 resides with his paternal grandmother on Manitoulin Island on First Nation territory.

[22] The mother’s second oldest child, F., was born in 2014 and he resides with the mother. It was the mother’s evidence that F. sees his father every weekend from Friday to Sunday.

[23] The mother has had a difficult personal history as a child. She testified that she was a Crown ward. In her role as a parent, the mother has been involved with the Society since 2012, the year when K.1 was born. The Society became involved with the mother in relation to K.1 and the mother agreed that K.1 had been apprehended from her care.

[24] The mother did acknowledge during cross-examination by the Society some historical protection concerns that included non-stable residence, use of unauthorized caregivers and poor judgment and decision-making. When asked whether her parenting skills were an issue, the mother agreed, but suggested that this was only a concern for the Society, implying, from the mother’s perspective that this was not a legitimate concern. In relation to F., the mother acknowledged the Society’s historical concerns that the mother and F.’s father continued to be in a relationship.

[25] The mother recently has had a stable residence. She has resided with her two children in London in her current residence for over a year. Although the mother was not working outside the home during trial, there was evidence that the mother did have some employment in the past. The mother expressed a desire to upgrade her education and obtain employment.

THE FATHER

[26] The father was born in 1984. He was age 36 at the conclusion of the trial.

[27] The father is First Nations and he was residing on the Munsee-Delaware Nation until April 1, 2021. It was at that time that the father and his partner, A.O.F. (“Ms. O.F.”), began to reside together in a residence that they rented in London. As to current employment, it was the father’s evidence that he works two part-time jobs. He works for a landscape company and his work with that company includes snow removal in the winter. His second part-time employment is with the Munsee-Delaware Nation.

[28] During the father’s testimony in April 2021, an incident occurred that required the father and Ms. O.F. to live apart, as explained later in these reasons.

[29] The father and Ms. O.F. are the parents of an infant daughter, S., born in 2021. Ms. O.F. has three other children from previous relationships in her care – C., D. and N., who were ages 11, 8 and 5 respectively when Ms. O.F. testified at trial in April 2021. Ms. O.F. is First Nations. She was age 31 at trial.

[30] The father and Ms. O.F. have known each other since they were children. They had been in a relationship for approximately 27 months at the conclusion of the trial. During her evidence, Ms. O.F., at times, was non-responsive to the question asked and had to be reminded to respond to the question. However, not withstanding the foregoing, and taking into account that Ms. O.F. was the father’s witness and was aligned with the father in this court case, I did find certain aspects of Ms. O.F.’s evidence to be very credible.

[31] In particular, Ms. O.F. gave very detailed and quite compelling evidence regarding her relationship and bond with K. The manner in which this evidence was given, including Ms. O.F.’s sometimes emotional reactions, spoke to the sincerity and credibility of her evidence. As Ms. O.F. stated in her testimony, she has known K. her whole life – from “bottles to sippy cups” and from “diapers to pull-ups.” Ms. O.F. provided various specific examples of the activities that she and K. have done together and their affectionate interaction with each other.

[32] I reject entirely the evidence from the mother that K. either does not like Ms. O.F. or that Ms. O.F. has grabbed or otherwise hurt the child. The mother’s evidence is based on alleged statements made to the mother by the child, none of which were tendered for their truth. I accept the evidence of Ms. O.F. and I find that she has a strong and affectionate relationship with the child and that she has not in any way acted inappropriately towards, or harmed, the child.

THE RELATIONSHIP BETWEEN THE FATHER AND THE MOTHER

[33] The relationship between the father and the mother has been fraught with acrimony and hostility towards each other.

[34] The parents separated in 2017 when K. was quite young.

[35] These reasons focus on the parents’ relationship and other issues arising subsequent to the final supervision order.

[36] The parents’ conflicting evidence regarding an incident that occurred on December 24, 2019 at an access exchange at the father’s home, in the presence of the child, demonstrates their inability to engage in behavior that is in their child’s best interests.

[37] Each parent has contacted the Society on various occasions alleging neglect or mistreatment of the child while in the other parent’s care. The Society, each time, has investigated the allegations and has not verified protection concerns.

[38] In or about June 2019, the mother made a complaint that the child returned to the mother from the father’s care with a possible cigarette burn on her arm. The mother did disclose that the father does not smoke. Police were involved and the child was seen at the hospital. The Society investigated and no child protection concern was verified. The police had been involved but discontinued their investigation. The father denied any wrongdoing.

[39] Recently, in April 2021, the father took the child to the doctor and then to the hospital as a result of the child having sustained a number of bruises while allegedly in the care of the mother. The mother denied any wrongdoing, claiming that any bruises were as a result of normal play activities. No child protection concerns were verified by the Society.

[40] In March 2021, the mother made a complaint to the Society alleging that K. may have been molested by a child relative of the father while in the father’s care. This allegation was steeped in layers of hearsay, making it practically impossible for the Society to investigate. Society child protection worker, Betina Andrade, testified that the mother was told that the Society needed to hear from the source of this alleged complaint. No further information was received by the Society or any other source relating to this allegation.

[41] In or about August 2020, the father complained to the Society that the child was sexually assaulted by her half-sibling, F., while in the mother’s care. The evidence of Society child protection worker, Elizabeth Fader, included that the father produced a video of the child, showing that the child’s private area was red and alleging that this was caused by F. It was Ms. Fader’s evidence that the child’s tests completed at the sexual assault centre came back negative and that the Society, after conducting its investigation, was not able to verify any protection concerns.

[42] This evidence called by the father did raise concerns regarding the interactions between K. and F., while K. is in the mother’s care, and are dealt with in more detail later in these reasons.

[43] The foregoing examples of complaints made by the parents against each other are not exhaustive.

[44] The mother testified that she wishes to co-parent with the father and have open lines of communication with him regarding the child. While the father is not opposed to communication and working with the mother, he complains that it is difficult to do so because the mother wants to discuss matters not related to the child and that the mother contacts the father about gossip rather than meaningful child-related matters. The father has blocked the mother on his cellphone.

[45] Although the parenting order states that the parties have “joint custody,” I find that there has been nothing “joint” about the custodial arrangement during the approximate three years following the date of the order. The parents, regrettably, exude much mistrust towards the other. Each parent is quick to contact the Society to register a complaint against the other, even in circumstances where there is no credible basis to lodge a complaint.

[46] I find that the parties’ failure to demonstrate a “joint” approach to “custody” is the result of the conduct of both parents.

EVIDENCE REGARDING ONGOING PROTECTION CONCERNS

[47] All the Society child protection workers who testified indicated that there were no ongoing protection concerns with either parent.

[48] It was the Society’s evidence that the parents need to come to a parenting agreement and that this would pave the way for a termination of the existing supervision order. The Society took no position as to what the parenting order should be.

[49] As between the parents, the father was the most vocal that there was no ongoing role for the Society and that this case should be dealt with under s. 102 of the Act.

[50] The mother also supported a s. 102 parenting order.

[51] The evidence disclosed that the parents, at times, cooperated with the Society, including requests for home visits. At other times, however, the parents were less cooperative, refusing to meet with the Society workers or allow the child to be interviewed. It should be noted that the Society did follow the protocol of ensuring that a Band representative was present at all meetings, including home visits, some of which were conducted virtually.

[52] Notwithstanding the periodic non-cooperation of either or both parents, the Society child protection workers over the years were able to observe each parent’s home, meet with each parent at his or her residence and meet with the child. The Society evidence indicated that each parent had appropriate accommodation for the child and a loving relationship with the child.

[53] Although there are a number of issues to be addressed, I conclude that in making an order that is in the child’s best interests that the order can be made pursuant to s. 102. I find that there are no ongoing protection concerns that require a further supervision order.

[54] In making this finding, I consider that the First Nation is involved in this case and that the First Nation represents a valuable resource for both parents. Access to First Nation’s resources by the parents can be integrated into an order under s. 102.

SPECIFIC ISSUES

A. Mother’s Concern Regarding Father’s Non-compliance with the Order as it Relates to the Mother’s Parenting time

[55] I am satisfied on the evidence that the mother has legitimate concerns regarding the father’s failure to return the child for the mother’s parenting time.

[56] This, regrettably, has occurred on a number of occasions, including after the father made a complaint that the child was sexually assaulted by her half-sibling and also included an occurrence in January 2021 when the father refused to return the child for the balance of the mother’s parenting time after the parties agreed, initially, that the child would not stay with the mother for the beginning of her scheduled parenting time.

[57] The father’s evidence, generally, in relation to facts, was credible and was given in a straightforward and at times somewhat blunt manner. During cross-examination by the mother, when it was suggested to the father that, despite court orders, he will do what he wants, he replied yes, to an extent. While the father’s response was blunt and truthful, it was not evidence that assists him.

[58] The father claimed that, in some instances, he was protecting the child. However, that explanation loses credibility in those circumstances where the father failed immediately to follow through with a motion to request a court order to approve his actions.

[59] The interim order of Henderson J. dated November 6, 2020 (referred to previously) contained a police assistance order. I take into account that, since that order, there has been significantly less turmoil resulting in the child being withheld by the father.

[60] The father needs to understand that an order is not a suggestion. An order must be obeyed.

[61] While police assistance orders should be avoided where possible, and used as a measure of last resort, I find that the father’s conduct in this case is such that it is necessary to continue with the police assistance order with a time limit as specified in the order below.

B. Father’s Partner Relationship with Ms. O.F.

[62] The relationship between the father and Ms. O.F. has included violent behavior and verbal altercations to which the child has been exposed. Police attendance has resulted in some instances.

[63] The evidence from child protection worker, Ms. Fader, indicates that on April 4, 2020 that she discussed with the father a verbal altercation that had occurred between the father and Ms. O.F. the day before. The father confirmed that K. look worried after the argument and that both the father and Ms. O.F. felt bad that K. heard the argument. The father acknowledged to Ms. Fader that arguments should not occur in front of the child. During her evidence, Ms. O.F. acknowledged that the child was impacted by arguments that the child witnessed between herself and the father.

[64] On or about November 7, 2020, the father and Ms. O.F. were involved in an altercation. As a result, they were each charged, contrary to s. 430(4) of the Criminal Code, R.S.C., 1985, c. C-46, with mischief by willfully damaging each other’s motor vehicle. Both the father and Ms. O.F. signed undertakings that included non-association conditions with each other.

[65] On November 25, 2020, Ms. O.F. was charged with a breach of her conditions when she allegedly attended at the father’s residence. In respect of the breach charge, Ms. O.F. signed a further undertaking with terms and conditions.

[66] Despite being bound by non-association conditions, the father and Ms. O.F., as indicated earlier, moved in together effective April 1, 2021, very shortly after the birth of their daughter, S. Prior to that time, they had been living separately.

[67] The father was less than cooperative with the Society in providing details as to the November 7, 2020 occurrence. He told one Society worker to check the police report.

[68] In this trial, the mother has expressed concerns about conflicts between the father and Ms. O.F. and the effect on the child. The father’s form 35.1 affidavit sworn April 16, 2021 failed to disclose his pending mischief to property charge. His explanation as to why that information was omitted was neither convincing nor credible.

[69] It was the mother’s evidence that, because of the father’s failure to provide details as to his pending criminal charge, that she only learned the details as the evidence was unfolding during the resumption of the trial in April 2021, including that the father and Ms. O.F. now were residing together.

[70] The mother testified that she alerted police during the trial that the father and Ms. O.F. were living together and, as a result of which, both the father and Ms. O.F. were charged on April 22, 2021 with breach of undertaking. The father and Ms. O.F. each signed a further undertaking on April 22, 2021 that included non-association conditions.

[71] As a result of the foregoing midtrial occurrence, the father testified that until the non-association orders are dealt with, that he will reside with his parents, who live on First Nation lands of the Munsee-Delaware Nation. The infant child, S., for now, continues to be with Ms. O.F.

[72] I find on the evidence that the child has a close relationship with her paternal grandparents, in particular the paternal grandmother, who testified as to her regular involvement with the child.

[73] The conflict between the father and Ms. O.F. is concerning as it impacts negatively on the child. However, the father has taken an appropriate step as he is seeing a counsellor, Rebecca White. The Society child protection worker, Ms. Andrade, confirmed that the Society had received correspondence from Rebecca White on February 7, 2021 confirming that the father had been attending counselling since November 2020 to address his issues relating to domestic violence and anger management.

[74] Additionally, the father had recently enrolled the child with a counsellor to provide play therapy. Although the father quite properly took this child-focused step, it was his evidence that he did so not because of any incident between himself and Ms. O.F., but rather because of what the child experiences at the mother’s residence.

[75] However, the reality is that the child has been exposed to conflict at both parents’ residences and the play therapy will be beneficial to the child to deal with all the conflict that the child has been exposed to. The concerns regarding exposure to conflict at the mother’s residence is dealt with below.

C. The Mother’s Partner Relationships

[76] The issue of the mother’s relationships with partners who have a history of violence was a significant concern to the father.

[77] In relation to the mother’s former boyfriend, G.C., the mother mentioned two police occurrences in 2018. One occurrence was because Mr. C. was stalking her. It was the mother’s evidence that eventually she had to move to a new residence because of the stalking.

[78] During the father’s cross-examination, the mother denied recalling an occasion when she and the children, K. and F., fled to the father’s residence as a place of safety to escape Mr. C.’s violent behavior. Despite the mother’s denial, however, it was the evidence of child protection worker, Barry Verberne, which I accept, that the mother called Mr. Verberne on July 3, 2018, telling him that she and the children had to flee her apartment to the father’s home after Mr. C. pushed his way into the apartment and assaulted her.

[79] It was the evidence of child protection worker, Ms. Fader, which I accept, that on March 13, 2018 the mother told Ms. Fader that she was recently assaulted at her home by Mr. C.

[80] The mother agreed that she entered into a relationship with one J.Y. Mr. Y. has a criminal history of violence, as is apparent from his form 35.1 affidavit sworn April 18, 2019. The affidavit was commissioned by a person working in the office of the mother’s counsel. Mr. Y.’s convictions include assault causing bodily harm, for which he was sentenced to two years incarceration in 2012, and aggravated assault and possession of a weapon for which he was sentenced to two-and-a-half years incarceration in 2015.

[81] On or about March 20, 2019, an incident occurred at the mother’s residence at which time Mr. Y. suffered a drug overdose. An ambulance was dispatched to the mother’s residence. The mother told Society child protection worker, Shelby Lee, that Mr. Y. did not use drugs and that someone else who was at her home allegedly put drugs in Mr. Y.’s drink without his knowledge.

[82] However, the mother also told Ms. Lee that she had been sleeping upstairs and did not know what was going on. The mother repeated a similar explanation to Society child protection worker, Mr. Verberne.

[83] I accept the evidence of both Ms. Lee and Mr. Verberne and I place no weight on the mother’s sanitized explanation proffered to the Society making the excuse that Mr. Y. was drugged by someone. The mother has no direct knowledge of what happened. She was sleeping by her own admission. Her explanation that Mr. Y. was drugged is inadmissible hearsay. What is known is that a number of people were at the mother’s home, there were drugs in the mother’s home, Mr. Y. suffered a drug overdose and an ambulance arrived. This chaotic episode at the mother’s home was of significant concern to the father. Fortunately, no children were in the home at the time.

[84] It was the mother’s evidence during cross-examination by the Society that she had resided with Mr. Y. from February 2019 to June 2019. While there is no dispute that the mother did reside with Mr. Y., I find that this time estimate is not reliable and that likely the mother resided longer with Mr. Y. than she has admitted. The mother, apparently, quickly formed an intention to marry Mr. Y. She told Society protection worker, Ms. Lee, on January 28, 2019, during a home visit when Mr. Y. was present, that she intended to marry Mr. Y. in April.

[85] While the drug incident involving Mr. Y. was being investigated, it appeared that Mr. Y. was not staying with the mother pursuant to the direction of the Society. On April 5, 2019, the mother told Ms. Lee that she wanted Mr. Y. back home with the children, that they were getting married in a few weeks. The mother then added another piece to her plan, telling Ms. Lee that she was planning to move to Alberta in June to work at her cousin’s construction company. She intended to take the child with her. However, the mother explained at trial that the plan to go to Alberta never came to fruition.

[86] The Society eventually did permit Mr. Y. to move back in with the mother on the condition that he was not left in a caregiving role for the child.

[87] The marriage plan, it appears, then changed. The mother told Society child protection worker, Ms. Fader, on October 8, 2019 that she was getting married to Mr. Y. in February. The mother further explained to Ms. Fader that she was planning to move to Windsor in November, however, that plan also never materialized.

[88] On November 30, 2019, the mother told Ms. Fader that she was no longer with Mr. Y. When testifying at the trial in April 2021, the mother shared with the court that recently Mr. Y. has been charged with murder. The mother indicated that she was acquainted with the victim of the alleged murder.

[89] I accept the aforementioned evidence of the Society child protection workers as to the mother’s shifting plans.

[90] The mother further testified that she was currently in a relationship with one C.J. It was the mother’s evidence that Mr. J. has been convicted of manslaughter, that he is now on parole with two-and-a-half years remaining and that he presently lives with his mother after having lived at a halfway house.

[91] Mr. J. has stayed over at the mother’s home on two occasions when her children were not there and this apparently was approved by his parole officer. Although there are no definite current plans, the mother left open the possibility that she and Mr. J. might move in together and that she would introduce her children to Mr. J.

[92] During her testimony, and in particular during the father’s cross-examination, the mother defended her choice of partners. She reasoned that the Society was aware of their backgrounds and had directed the mother that none of those individuals could be left in a caregiving role with her children. It was the mother’s evidence that she was always with the children and, hence, there was no risk.

[93] It is quite evident, I find, and as argued by the father, that the mother is giving primacy to her own self-interest in pursuing relationships with violent offenders. The mother presents as oblivious to the father’s well-articulated fear that K.’s exposure to violent offenders places her potentially at risk. On the mother’s own evidence, she and her children have had to move because of being stalked by Mr. C. Also, there was evidence of having to flee with the children to the father’s residence after being assaulted by Mr. C.

[94] The father was at times emotional during his evidence, and also his submissions, as to the extent of his fear that something may happen to K. because of the people that the mother associates with.

[95] In relation to her current partner, Mr. J., the mother provided no evidence to corroborate his criminal record and she did not appear to know if Mr. J. had any other criminal convictions. The mother’s history of poor relationship choices represents, as a minimum, poor and irresponsible judgment that is incompatible with her children’s best interests. The mother’s history of poor relationship choices cannot be ignored. It represents a palpable future risk for K. and is a factor that must be considered.

[96] The mother is encouraged, strongly, to seek appropriate counselling and education to assist her when making her relationship choices. In particular, the mother should consider approaching the First Nation and requesting appropriate referrals.

D. Concerns Regarding the Relationship between K. and her Half-sibling, F.

[97] Although the investigation of the alleged assault of K., by F., led to a conclusion by the Society that protection concerns were not verified, there still remains, in my view, some concern as to what is occurring between those children when they are in the care of the mother. K. has repeated to various witnesses statements regarding F. that would be quite concerning if they were true.

[98] I accept Ms. O.F.’s testimony that K. has told her that F. locks her in the basement, that he breaks her things, that she does not want to take her glasses with her to her mother’s home because she is afraid that F. will break them and that F. gets naked. I accept the father’s evidence that K. told him that F. gets undressed in front of her. I accept the paternal grandmother’s evidence that K. told her that F. locks her in the basement and that F. gets naked.

[99] For her part, the mother testified that she supervises K. and F. and denies any inappropriate conduct by F. towards K. In her testimony, the mother acknowledged that F. has been diagnosed with a condition that she described will stunt his brain growth. F. is being seen currently by a pediatrician and a brain scan is planned according to the mother.

[100] It should be noted that the mother did not produce any corroborating medical reports.

[101] The mother described that F. has outbursts during which he will yell, throw things and break things. The yelling and screaming can be daily; the other behaviours were not as often.

[102] It was the mother’s evidence that F. has broken K.’s toys. This raises questions as to how F. could be breaking K.’s toys if the mother is supervising the children, as she claims. Also, the mother’s evidence corroborates K.’s statement that F. breaks her things.

[103] The mother also confirmed that K. has been present during some of F.’s outbursts. She testified that he may have outbursts five times per month. Some outbursts were described by the mother as being violent.

[104] The mother has approached Vanier Children’s Services for assistance regarding F. She has been provided with advice as to how to handle F.’s behaviours. Also, the mother indicated they are on a waiting list at Vanier Children’s Services for the Home Family Therapy program.

[105] While the aforesaid statements made by K. to the father, paternal grandmother and Ms. O.F. are not evidence as to the truth of their contents, it is concerning that the statements are being made. Some of the aforesaid statements made by K. do demonstrate, at the least, that she has some fear of F. and would be admissible as to her state of mind. Also, the mother has corroborated aspects of K.’s statements and that K. has witnessed F.’s outbursts.

[106] The order below includes conditions for supervision of K. and F. and a requirement that the mother keep the father fully informed regarding all counselling and treatment for F.

E. The Child’s Appearance and Behaviour on Transitioning to the Father’s Care

[107] Ms. O.F. testified that prior to November 2020 that she was present almost every time when the child was exchanged between the parents. Regarding the child’s hygiene when being picked up from the mother’s care, Ms. O.F.’s evidence included: the child smells like urine; the child is wearing dirty underwear; the child’s nails are dirty; regarding the child’s hair, Ms. O.F. described the child as “wild-haired”; the child is dressed in ill-fitting clothes that are too small for her and cutting into her circulation; the child needs to have her teeth brushed because of bad breath; and the child’s shoes and boots are too small and do not fit.

[108] Regarding the child’s hair, Ms. O.F. testified that she would sometimes spend 20 minutes with the child, brushing her hair, after the child returned from the mother’s home.

[109] Ms. O.F. also described the child’s vocabulary after being picked up from the mother’s home and several days following. Ms. O.F. gave examples of swear words used by the child and also racially-charged language used by the child. The child calls people “stupid.” Ms. O.F. explained that the language used by the child is not language that is used when the child is with them.

[110] The father testified that when he picks up the child that she has urine-soaked underwear, dirty fingernails and that the child “smells.”

[111] The paternal grandmother in her evidence expressed concerns as to the child’s appearance after visits with the mother. The paternal grandmother noted the child’s pants being too tight, ill-fitting underwear, dirty or no socks and hair that the paternal grandmother described appearing as mangled. The paternal grandmother also noted that the child smelled of urine or sweat. It was also the paternal grandmother’s evidence that the child would use swear words or other inappropriate language that was described by the grandmother in her testimony.

[112] In relation to the issue of hygiene and clothing, the mother’s evidence was that the child is bathed daily in her home. The mother did indicate that, at times, the child will not let the mother wash or brush her hair and that the mother would let the father know about that. The mother denied dressing the child in ill-fitting clothes and indicated that the child was properly dressed in new clothes.

[113] I find the evidence of the father, the paternal grandmother and Ms. O.F., as to their observations regarding the child’s clothing, hygiene and vocabulary, to be credible. Their evidence was not weakened or impugned during cross-examination. I prefer their evidence over the mother’s evidence and I accept their evidence where it conflicts with the mother’s evidence. I conclude that the mother is neglectful at times of her responsibility to ensure the child’s proper hygiene, proper attire and to ensure that the child is not exposed to inappropriate language.

THE POSITIONS OF THE PARTIES

[114] During her testimony, the mother suggested that she should have primary care of the child, as she felt that the father was refusing to cooperate with her. She did also testify that she was prepared to continue with the week-about parenting time on a final basis if the father was agreeable to cooperating with her.

[115] The parents and the Society all filed a request for a final order and those requests were marked as lettered exhibits.

[116] As part of her closing argument, the request for a final order sought by the mother provided for joint decision-making responsibility for the child, with the week-about parenting arrangement to continue.

[117] The father’s position has been consistent. He stood by his written request for an order filed shortly after the commencement of the trial. The father seeks sole custody (now “decision-making responsibility”) and a regular parenting schedule whereby the child resides with him five days during the week and with the mother two days on each weekend.

[118] The Society’s proposed draft final order requested termination of the existing supervision order and an order requiring the parties to enter into a voluntary services agreement. The Society provided a draft copy of the proposed voluntary services agreement.

[119] In my view, it is not open to the court to order parties to sign a voluntary services agreement. In any event, it was the Society’s submission that even if there is no voluntary services agreement, that the Society still seeks termination of the supervision order.

[120] The First Nation chose not to call any evidence or cross-examine any witnesses. At the outset of the trial in February 2020, it was the First Nation’s position that the safety of the child needs to be ensured.

DISCUSSION

A. Statutory Provisions

[121] This status review application falls under s. 113 of the Act. The orders that a court can make are set out in s. 114:

114 Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 101; or

(d) make an order under section 102.

[122] I set out for convenience the provisions of s. 74(3), which contain a non-exhaustive list of the factors that the court shall consider in relation to a child’s best interests:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person 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;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

B. Paragraph 3(a)

[123] The child’s age is such that her views and preferences are not readily ascertainable.

C. Paragraph 3(b) and Clauses (c)(iii) and (iv)

[124] The First Nations status of the child and both parents will ensure that the child will experience the privilege of maintaining and preserving her rich cultural identity and her connection with her First Nations community.

D. Clauses (c)(i) and (ii)

[125] The child is healthy and has no identified medical issues. Emotionally for the child, it is important for the child to maintain a strong and healthy bond and relationship with both parents.

[126] The father has ensured that the child’s medical needs are met. He has arranged for the child to have a doctor with the Southwest Ontario Aboriginal Health Access Centre. The father also arranged for the child to have a dentist, and it was the father who noticed that the child was squinting and arranged for the child to be seen by an appropriate professional, who prescribed glasses for the child. Also, as mentioned earlier, the father arranged play therapy counselling for the child.

E. Clauses (c)(v) and (vi)

[127] The evidence supports a finding that both parents have a strong bond with the child. Each parent spoke to the joy and love that K. brings to their lives.

[128] It is important for the child to maintain her relationship with her step-siblings, while the child is in the mother’s care. It was the mother’s evidence that F. sees his father every weekend. Accordingly, the parenting order needs to provide for K. and F. to have time together. The eldest child, K.1, apparently does visit with the mother in the summer.

[129] I accept Ms. O.F.’s evidence that K. has developed a close relationship with Ms. O.F.’s three children. It would be beneficial for K. to maintain these relationships in addition to her relationship with Ms. O.F.

[130] K. will also need to develop and maintain a relationship with her newborn half-sibling, S.

[131] Some issues regarding K.’s interactions with F. have been discussed earlier. It is important to recognize that F. has special needs and that K.’s relationship with F. needs to be maintained in a way that is safe for K.

[132] Finally, K.’s strong relationship with her paternal grandparents should be maintained. In particular, K. will benefit from the privilege and richness of her First Nations heritage through a strong connection with her paternal grandparents. The evidence does show that the father has promoted the strong relationship that K. currently has with her paternal grandparents.

F. Clauses (c)(vii), (viii), (x) and (xi)

[133] During the father’s evidence, he testified specifically as to the number of days that the mother had care of the child on a monthly basis for the period from May 2018 to January 2020. Although the father did not produce any records, no objection was made to the father’s evidence. I find on the balance of probabilities that the child spent more time with the father than the mother during the period from May 2018 to January 2020. In making this finding, I do not include any missed parenting time because of the mother’s cancellations when she was dealing with personal issues, as the mother admitted, and I do not include any missed time when the child was withheld by the father contrary to the order.

[134] I find on the evidence that the father’s plan better promotes stability and routine for the child. The father has demonstrated his ability to arrange for appointments and services for the child, including play therapy. The mother agreed during cross-examination that she had not noticed that the child was squinting, which the father had observed and which led to the child getting glasses.

[135] The mother’s past and current relationships with persons who have a history of violence is concerning. The potential future risk to the child because of the mother’s choices in partners remains an issue now and for the foreseeable future.

[136] Although the history of conflict between the father and Ms. O.F. is troubling and is a concern, the father, as noted earlier, has been attending appropriate counselling.

[137] The evidence indicates that the mother has not been able, properly, to shield K. from F.’s conduct and that this has had a negative impact on K. The mother will need to be vigilant in addressing K.’s safety and in following through with appropriate counselling and therapeutic intervention for F.

[138] The mother’s proposal for joint decision-making responsibility and equal parenting time, I find, is not a plan that meets the child’s best interests. The child’s best interests require that the child should reside primarily with the father.

[139] Decision-making responsibility, in order to meet the child’s best interests, should be with the father, subject to the mother having decision-making responsibility for education. The parties have demonstrated, since the final parenting order was made in May 2018, that they are unable to parent jointly. Accordingly, I find that a shared-parenting approach, where there is some aspect of sharing decision-making responsibility, is appropriate and in the child’s best interests. In giving the mother joint decision-making responsibility for education, I do consider that during the continuation of the trial in April 2021, that the mother had failed to register the child for school for the current academic year, notwithstanding the interim order dated November 6, 2020 requiring the child to be registered in Wilfred Jury Public School. However, I take into account also that the mother did promptly, during the trial, enroll the child in school after the issue was raised at trial.

[140] In relation to the degree of risk that justified finding that the child was in need of protection, it is noted that a number of protection concerns centered around the mother’s past history. I am satisfied on the evidence that there are no continuing issues that rise to the level of protection concerns.

[141] The mother in her plan sought a police assistance order. The order below does include a time-limited police assistance order. I make that order reluctantly. The father is warned that he must comply with the order regarding the mother’s parenting time and, in the future, the father must conduct himself such that the mother does not have to resort to the police assistance order.

[142] The current interim order dated November 6, 2020 requires the father to provide all transportation to facilitate exchanges of the child. The father was opposed to the continuation of this provision. However, the mother currently has limited financial resources. She also has F. in her care. On termination of the supervision order, the mother will not have access to the Society’s volunteer drivers to assist the mother in picking up the child for her parenting time.

[143] The mother should not be missing parenting time because she is unable to attend at the father’s residence to pick up the child. This was a particular issue while the father was living within the Munsee-Delaware Nation because of the distance and lack of public transportation. The father shall continue to be responsible for transportation but on a time-limited basis as provided in the order. This will allow the mother to take appropriate steps to be in a better financial position to share responsibility for transportation arrangements.

CONCLUSION

[144] For reasons discussed, the order made below is the order that is in the child’s best interests.

[145] I add that the order below is not premised on the father residing with Ms. O.F. Whether the father continues to reside with his parents, or elsewhere alone, or eventually with Ms. O.F. once the criminal non-association conditions are dealt with, does not affect the court’s analysis and conclusions discussed in these reasons.

[146] Finally, in relation to the mother’s contempt motion that was adjourned to the trial judge, the parties did not file a copy of that motion on the continuation of the trial. In any event, no useful purpose would be gained by having to deal with that motion in the future and, accordingly, the order below dismisses any existing motion for contempt.

ORDERS

[147] I make a final order in the protection matter as follows:

1. The final supervision order of McArthur J. dated April 5, 2018 is terminated.

2. The final order of Vogelsang J. dated May 17, 2018 is vacated.

3. A separate order shall issue pursuant to s. 102, using the same file number as in the protection proceeding, and showing the father as the applicant and the mother as the respondent.

[148] I make a separate final order showing the father as the applicant and the mother as the respondent as follows:

1. The father shall have primary care of the child and the father shall have sole decision-making responsibility as to all matters affecting the child, K. (“the child”), except as provided in paragraph 2 in relation to education.

2. The mother shall have sole decision-making responsibility for the child in relation to education, subject to the following:

(a) the child shall attend Wilfrid Jury Public School in London, which is located within the catchment area of the mother’s current residence;

(b) if the mother moves within the City of London, the child shall attend the public school that is within the catchment area of the mother’s new residence; and

(c) if the mother moves outside of London, Ontario, then, unless the parties agree in writing or the court orders otherwise, the father shall have sole decision-making responsibility for the child regarding education, including the school that the child attends.

3. During the child’s school year, the parenting-time schedule is as follows:

(a) the mother shall have parenting time with the child every week from 5 p.m. Thursday to 6 p.m. Saturday, except that the mother shall have parenting time from 5 p.m. Wednesday to 6 p.m. Saturday once per month commencing on the first Wednesday of each month; and

(b) the father shall have parenting time with the child at all other times.

4. During the child’s school summer vacation, each party shall have parenting time with the child on a week-about basis, with the exchange to occur at 6 p.m. Friday and subject to the following:

(a) the week-about schedule shall commence on the first Friday after school ends;

(b) in odd-numbered years, the first week shall be with the mother;

(c) in even-numbered years, the first week shall be with the father;

(d) the week-about schedule shall end at 6 p.m. on the last Friday in August and, immediately thereafter, the regular school year schedule shall start; and

(e) for the balance of the school summer vacation for 2021, the week-about shall follow the regular cadence that the parties were following pursuant to the interim order dated November 6, 2020.

5. The following specific parenting time provisions shall apply and shall take precedence over the regular parenting-time schedule:

March Break

(a) on the Saturday of the first weekend of the March Break, the child shall remain with the mother until 5 p.m. Wednesday and the child thereafter shall be in the father’s care for the remainder of the March Break;

(b) commencing in 2023, either party may elect to take the child on a vacation for the entire March Break; the father shall have that right in odd-numbered years and the mother shall have that right in even-numbered years; that right shall be exercised by giving notice in writing to the other party no later than January 15 in the year of the March Break vacation;

Christmas

(c) in even-numbered years commencing 2022, the child shall be with the mother for the first half of the school break, from after school on the last day of school, and shall remain with the mother for eight days until 5 p.m. on the eighth day; and the child shall be with the father for the second half of the school break until school resumes;

(d) in odd-numbered years commencing 2021, the child shall be with the father for the first half of the school break, from after school on the last day of school, and shall remain with him for eight days until 5 p.m. on the eighth day; and the child shall reside with the mother for the second half of the school break until 5 p.m. on the day before school resumes, after which time the child shall be with the father;

Mother’s Day

(e) for the Mother’s Day weekend, the mother’s regular parenting time is extended to 6 p.m. Sunday;

Easter

(f) in even-numbered years on the Easter weekend, the mother’s regular parenting time is extended to 6 p.m. Sunday;

Thanksgiving

(g) in odd-numbered years on the Thanksgiving weekend, the mother’s regular parenting time is extended to 6 p.m. Sunday;

Hallowe’en

(h) the child shall be in the care of the mother on Hallowe’en day every even-numbered year from 5 p.m. to 9 p.m. commencing 2022;

(i) the child shall be with the father on Hallowe’en day every odd-numbered year from 5 p.m. to 9 p.m. commencing 2021;

(j) the parent who has the child for Hallowe’en shall be responsible for the child’s costume;

Family Day / Victoria Day

(k) in even-numbered years commencing 2022, the child shall be with the father for the entire Family Day and Victoria Day weekends, starting at 5 p.m. Friday until 6 p.m. Monday;

(l) in odd-numbered years commencing 2023, the child shall be with the mother for the entire Family Day and Victoria Day weekends, starting at 5 p.m. Friday until 6 p.m. Monday;

6. (a) The child shall have no contact with C.J. unless the father consents in writing or the mother obtains an order of the court.

(b) If the mother seeks to obtain an order of the court, the mother shall do so by motion to change and the mother shall have the onus to demonstrate that there has been a material change in circumstances such that contact between the child and C.J. is in the child’s best interests.

7. (a) If the mother enters into a relationship with a new partner, the mother shall not allow any contact between the child and the new partner until the mother has provided to the father in writing that person’s full name, date of birth, address and occupation and has obtained from that person, and provided to the father, a copy of that person’s criminal record.

(b) If the mother has complied with the provisions of paragraph (a), and the father believes that contact between the mother’s partner and the child is not in the child’s best interests, then the father is at liberty to seek an order to prevent contact and shall do so by motion to change and the father shall have the onus to demonstrate that there has been a material change in circumstances and that contact between the child and the mother’s partner is not in the child’s best interests.

8. (a) The father is responsible for all transportation arrangements. He shall pick up the child from the mother’s residence at the beginning of his parenting time and he shall return the child to the mother’s residence at the conclusion of his parenting time.

(b) after December 31, 2022, it shall be each party’s responsibility to pick up the child from the other party at the beginning of his or her parenting time.

9. Unless the parties agree in writing or the court orders otherwise, the child’s primary place of residence shall be either the City of London or within the Munsee-Delaware Nation.

10. Unless the parties agree in writing or the court orders otherwise, the child shall reside with the mother during her parenting time either in London, Ontario or within the Munsee-Delaware Nation.

11. On the production of a copy of this order, both parties shall have the right to obtain information directly from the child’s school, doctor and other professionals that may be involved with the child. The parties shall keep each other updated with respect to the names and contact information of the service providers.

12. Each party shall be noted as a contact person with each school, doctor, dentist, or other professional or institution providing extracurricular activities or other services to the child.

13. Each party shall have the right to participate in any association at the child’s school that allows involvement of the parents and the right to attend parent-teacher interviews and any function at the child’s school that is open to parents of students attending the school, including any school trips that parents are invited to attend with the child, and each party shall be designated at the child’s school as a contact in the case of an emergency involving the child.

14. The parties shall provide to each other written notice of any changes in address, telephone number and email prior to such change taking place.

15. The parties shall ensure that the child shall not be exposed to disparaging remarks made against the other by either party or by any person while the child is in his or her care.

16. The parties shall communicate via the “Talking Parents” application or, for emergencies, via text, and all communication shall be respectful and child-focused and only with respect to scheduling parenting time, emergencies relating to the child or any other matter affecting the child.

17. The father shall provide to the mother, front and back, copies of the child’s health card and status card.

18. If either the father or the mother plans a vacation with the child, that parent shall give the other a detailed itinerary at least 30 days before the vacation begins, including the name of any flight carrier, flight times, accommodation information, including address and telephone numbers and details as to how to contact the child during the trip.

19. The parent who is not travelling with the child shall provide a notarized letter authorizing the travel at least 20 days before a scheduled trip, if necessary and if requested. The travelling parent shall reimburse the other for the cost of obtaining the notarized letter. If either parent plans a vacation without the child, that party shall provide to the other a telephone number where he or she can be reached in case of an emergency or if the child wishes to contact the vacationing party.

20. The father may obtain a passport for the child. The mother shall give any consent required for such a passport. The passport will normally be kept by the father but will temporarily be given to the mother when reasonably necessary for travel with the child outside of Canada.

21. In relation to the child, F., the mother shall provide to the father copies of any reports or assessments relating to F.’s behavior outbursts, including treatment and response to therapy.

22. (a) The mother shall closely supervise all contact between the child and the child’s half-sibling, F.

(b) During her parenting time, the mother shall not delegate supervision of the child and F. to any other person unless that person is first approved in writing by the father.

(c) If the mother is unable to supervise the child and F. during any portion of her parenting time, and if there is no approved alternate caregiver, then the mother shall notify the father and the child shall be cared for by the father during that portion of the mother’s parenting time when she is not available.

23. The requirement for the mother not to delegate supervision of the child and F. to any other person may be reviewed at the request of the mother not earlier than 18 months after the date of this order, subject to the following terms:

(a) the mother has provided to the father all relevant reports and assessments as required in paragraph 21; and

(b) on the review, which shall proceed via motion to change, the mother bears the onus to demonstrate that F. has received appropriate therapy and intervention and that it is in K.’s best interests to permit the mother to allow other persons to supervise K. and F.

24. The parties shall seek advice and assistance from the Munsee-Delaware Nation (the “First Nation”) in the following circumstances:

(a) the parties shall request the First Nation to provide referrals for appropriate parenting programs, and for appropriate counselling, to assist the parties in their interactions with each other and to assist the parties in parenting the child; and

(b) the parties shall request the First Nation to provide any available resources or assistance, via mediation or otherwise, in resolving any disputes or disagreements between the parties regarding the implementation of this order.

25. For the purpose of enforcing this parenting order, the sheriff of the County of Middlesex, the London Police Service, the Royal Canadian Mounted Police, the Ontario Provincial Police and any other police force having jurisdiction in any area where it appears that the child may be, and to whose attention this order has been drawn, shall locate, apprehend and deliver the child to the party entitled to have the child in his or her care pursuant to this order.

26. For the purpose of locating and apprehending the child in accordance with this order, a member of a police force may search and enter any place where he or she has reasonable and probable grounds for believing that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be conducted at any time.

27. All provisions in this order relating to police assistance expire on August 31, 2022.

28. The parties shall cooperate to make reasonable changes to the parenting plan, by agreement and in writing, to accommodate in the child’s best interests any extended vacations or any other reasonable plans that may occur from time to time.

29. Both parties shall ensure that each party shall have reasonable opportunity to communicate with the child via telephone, video conferencing or any other electronic means while the child is in the care of the other party.

30. Any outstanding motion for contempt brought by the mother is dismissed.

31. This order is deemed made pursuant to the Children's Law Reform Act.

“Justice V. Mitrow”

Justice Victor Mitrow

Released: August 5, 2021

COURT FILE NO.: C266/12-07

DATE: August 5, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Children’s Aid Society of London and Middlesex

Applicant

• and -

A.J.F., R.P. and Carol Summers, Band Representative, Munsee-Delaware Nation

Respondents

REASONS FOR JUDGMENT

MITROW J.

Released: August 5, 2021

[^1]: Rule 23(21)(c) provides: Evidence at trial by affidavit or another method not requiring a party or witness to attend in person may be used only if, … (c) the evidence would have been admissible if given by the party or witness in court.